« November 2010 | Main | January 2011 »

Friday, December 31, 2010

Ind. Decisions - Indiana mortgage decision nationally noted [Updated]

The Nov. 19, 2010 Court of Appeals opinion in Florence R. Lacy-McKinney v. Bean Taylor and Whitaker Mortgage Corp. (one of the few the ILB has missed - cataract surgery) is written up today in an article by David Dayen of FireDogLake. A quote:

Even though the Treasury Department isn’t sanctioning servicers for their failure to comply with HAMP guidelines, it looks like in some cases, the courts could. In a case in the Indiana Court of Appeals, a foreclosure case was reversed * * * because the servicer, in this case, Taylor, Bean & Whitaker Mortgage Corp., did not follow FHA guidelines when proceeding to foreclosure. Specifically, they did not allow for a partial mortgage payment, as allowed under HUD guidelines (which guide FHA mortgages), and the servicer did not have a face-to-face meeting with the borrower. The court ruled these are binding conditions that the servicer must comply with before instigating a foreclosure.
See also this item from CreditSlips headed "Noncompliance with HAMP Guidelines as an Affirmative Foreclosure Defense?"

[Updated] Two more mortgage-related stories today:

Posted by Marcia Oddi on Friday, December 31, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "E-mails reveal Duke's rising worries: Critics compare saga of cost overruns, setbacks to 1980s nuclear plant fiasco"

Another John Russell story today in the Indianapolis Star relating to "Duke Energy Corp.'s massive power plant in Edwardsport." (Here is a list of earlier ILB entries citing Russell stories.) Lengthy and fascinating.

Equally fascinating is this teaser for the Sunday Star about a story much-covered in southern Indiana, particularly Evansville, but not, up to now, here:

2 coal-gasification plants in the works for Indiana

The coal gasification plant under construction in Edwardsport by Duke Energy Corp. is one of two under development in Indiana.

Coming Sunday, The Indianapolis Star will examine a controversial plan to develop a second coal gasification plant in Rockport in southwestern Indiana. The Rockport plant is being developed by Leucadia National Corp., a New York investment company.

The Edwardsport plant will convert coal into natural gas and then into electricity; the Rockport plant will generate natural gas.

For background, see, for instance, this March 29, 2010 ILB entry. More recently, see this Dec. 16, 2010 WIBC story by Eric Berman. And this Dec. 17, 2010 story from Keith Benman of the NWI Times - some quotes:
INDIANAPOLIS | The state has reached a 30-year deal to buy synthetic natural gas from a $2.6 billion coal-gasification plant planned for southern Indiana in a move that will affect NIPSCO customers' bills.

The Indiana Finance Authority on Thursday voted 5-0 to buy synthetic natural gas from Indiana Gasification LLC for the next 30 years and have that gas distributed to customers of existing Indiana utilities. The company is a subsidiary of Leucadia National Corp.

Gov. Mitch Daniels touted the vote Thursday, saying it will "protect ratepayers against the likelihood of higher long-term gas prices."

"We're out to pay Hoosiers instead of people elsewhere for the energy we need," Daniels said.

Consumer groups decried the deal, saying Indiana utility customers will be held hostage to a nonregulated, private company and paying sharply higher prices for natural gas.

"Regardless of the price of gas on the market, ratepayers will be forced to buy this gas," said Kerwin Olson, a utility campaign organizer for the Citizens Action Coalition.

Posted by Marcia Oddi on Friday, December 31, 2010
Posted to Indiana Government

Environment - "Ohio gov.-elect eyes gas riches of Marcellus Shale"

Following up on yesterday's ILB entry re the new Ohio governor's naming of an IDEM official to head the Ohio environmental agency, the WSJ today has this AP story that begins:

COLUMBUS, Ohio — Gov.-elect John Kasich on Thursday said natural gas drilling in a geological formation that stretches into Ohio could boost the state's economy by attracting businesses and helping to put skilled workers back on the job.

If large deposits of natural gas were found by drilling in the Marcellus Shale, Ohio could see big opportunities, Kasich said at a news conference to announce his picks to lead two state agencies.

The ILB has had a number of entries on the Marcellus Shale gas boom.

Posted by Marcia Oddi on Friday, December 31, 2010
Posted to Environment

Courts - C-SPAN Radio's Saturday night broadcast of selected oral arguments

The ILB missed these, but this article from Andrew Cohen of Politics Daily makes me want to look for rebroadcasts. For instance, here is Cohen's introduction to C-SPAN's broadcast of the audiotape recording of the oral argument in Loving v. Virginia.

Posted by Marcia Oddi on Friday, December 31, 2010
Posted to Courts in general

Courts - Interview with Justice Kagan

The entire 49:21 minute C-SPAN interview with Justice Elena Kagan, from which you may have seen excerpts.

Posted by Marcia Oddi on Friday, December 31, 2010
Posted to Courts in general

Ind. Gov't. - "Anybody could be in their basement, unload this and draw their own plan, using all the tools we have"

That is a quote from Cathy McCully, who heads the U.S. Census Bureau's redistricting data division, in a Washington Post story today reported by Carol Morello. A sample:

In barely a month, the Census Bureau will begin sending states details collected in the 2010 Census, enumerating inhabitants down to the block level. The census data will be far less cumbersome and more attainable than ever. The data will go up on the bureau's Web site, available for anyone to download and even try their hand at redistricting themselves.

But in a theatrical touch, the data will be delivered overland to the states the day before it's made public, mostly via Federal Express.

The article contains a number of interesting items.

Posted by Marcia Oddi on Friday, December 31, 2010
Posted to Indiana Government

Thursday, December 30, 2010

Ind. Gov't. - Several TV news stories about Marion County prosecutor changeover

Troy Kehoe of WISHTV had a story Tuesday, Dec. 28 headed "New prosecutor terminates six deputies." Some quotes:

At least six high ranking deputy prosecutors were terminated from their positions on Monday. All are major felony prosecutors. * * *

Those six prosecutors include lead prosecutor for narcotics felonies Larry Brodeur and Fatal Alcohol Crash Team (FACT) Deputy Prosecutor Edward Zych.

Zych has been a deputy prosecutor for eight years, and has a very high conviction rate, according to current Marion County Prosecutor Carl Brizzi.

"He told me [Monday] that he would be letting go of some deputy prosecutors. I don't know how he arrived at the decision of who they would be, but he has to come in and do what he has to do. I will say that the transition here has been extremely smooth," Brizzi said. * * *

"I have no idea why Terry Curry isn't retaining him," [Brizzi] said. “I don't know many of the folks on that list to be political. But, this is a political office. You have to run as a Republican, Democrat, Libertarian, Independent, etc. to be prosecutor. When I worked as a deputy — we're all at-will employees, which means there doesn't have to be cause. You can be fired at will."

A long story at WTHR yesterday headed "Brizzi looking forward to life after prosecutor's office."

"Brizzi Leaves Behind Legacy Of Controversy" is the headline to this 6NEWS story from Dec. 29th.

Posted by Marcia Oddi on Thursday, December 30, 2010
Posted to Indiana Government

Environment - "Kasich names heads of state Department of Natural Resources and Environmental Protection Agency"

Aaron Marshall of the Cleveland Plain Dealer has the story. Some quotes:

COLUMBUS, Ohio -- Ohio is open for business.

That is the message Gov.-elect John Kasich said he wanted to send the business community when he tapped a former American Electric Power executive to head the state's Department of Natural Resources Environmental and an Indiana bureaucrat to head the state's Environmental Protection Agency.

Coming aboard as the state's new ODNR director is C. David Mustine * * *

Meanwhile, Kasich reached into Indiana's state environmental bureaucracy to nab Scott Nally, who will be the Ohio Environmental Protection Agency director.

"Indiana has done it right," he said, noting that Nally helped whittle down an 800-environmental permit backlog while working as assistant commissioner of that state's Department of Environmental Management. "We have to break the grip of bureauocracy."

According to this ILB entry from March 3, 2005, Scott Nally, (Assistant Commissioner, External Affairs) was formerly with Perdue Farms.

Yesterday the Indianapolis Star reported: "Florida's next governor hires Indiana prison leader." The lede: "The recently elected governor of Florida has hired the Indiana correction commissioner to run the Florida prison system."

Posted by Marcia Oddi on Thursday, December 30, 2010
Posted to Environment | Indiana Government

Ind. Decisions - Month-long, year-end desk-clearing still continues: Court of Appeals issues 7 today (and 18 NFP)

For publication opinions today (7):

Richmond State Hospital, et al. v. Paula Brattain, Francis Ernst, et al. is the state employees' back pay suit where plaintiffs were awarded $42 million in trial court - see list of ILB entries here. Here is the Oct. 8, 2010 COA opinion. Today Judge Crone writes in a 5-page opinion on rehearing:

Richmond State Hospital and all other similarly situated State Institutions and Agencies (collectively referred to as “the State”) and Jennie Veregge (who replaced Paula Brattain), Francis Ernst, Rebecca Strong, and Terry Sutcliffe (collectively “the Employees”) petition for rehearing in Richmond State Hospital v. Brattain, 935 N.E.2d 212 (Ind. Ct. App. 2010). We deny the State’s petition and grant the Employees’ petition to clarify our instructions on remand for determining the merit Employees’ damages. * * *

To sum up, the merit Employees are entitled to back pay for the period beginning either ten days before the filing of the July 29, 1993, complaint or ten days before the filing of their individual administrative grievances, whichever comes first, until the date that the State abolished the split class system. The trial court must determine whether the State terminated the split class system on September 12 or September 19, 1993. See Richmond, 935 N.E.2d at 238, 242. In all other respects, we affirm our original opinion.

In Dewayne Rhoiney v. State of Indiana , an 11-page opinion, Judge Riley concludes:
we find that based on the record and the case law available at the time of Rhoiney’s sentencing, appellate counsel should have recognized the trial court’s imposition of consecutive sentences in the absence of any available aggravators as a significant and obvious issue; her failure to raise this issue cannot be explained by any reasonable strategy. See Ben-Yisrayl, 738 N.E.2d at 260-61. Therefore, we conclude that Rhoiney’s appellate counsel’s representation fell below an objective standard of reasonableness, and her error was so serious that it resulted in a denial of the right to counsel guaranteed to Rhoiney by the Sixth Amendment. This deficient performance prejudiced Rhoiney because there is more than a very reasonable probability that if the issue had been raised, Rhoiney’s sentence would have been different. Therefore, we reverse the order of the post-conviction court and remand to that court for resentencing.
In K.A. v. State of Indiana , an 8-page opinion, Judge Vaidik writes:
The juvenile court entered dispositional orders under two different cause numbers placing fifteen-year-old K.A. on probation. When K.A. allegedly violated his probation, the juvenile court held a hearing and modified its dispositional orders. K.A. now appeals the modification of his disposition. He contends that the juvenile court violated his due process rights by modifying his disposition after a hearing at which the State presented no evidence of the alleged probation violation. We conclude that because the modification was predicated on the alleged probation violation, principles of fundamental fairness required the State to present evidence of the allegation. Because K.A. was denied due process, we reverse.
In Kathy Inman v. State Farm Mutual Automobile Insurance Co. . a 13-page opinion, Judge Riley writes:
Appellant-Plaintiff, Kathy Inman (Inman), appeals the trial court's denial of her motion for prejudgment interest pursuant to Indiana Code section 34-51-4-5 in her action against Appellee-Defendant, State Farm Mutual Automobile Insurance Company (State Farm). We reverse and remand with instructions. * * *

The purpose of the TPIS is to encourage settlement and to compensate the plaintiff for the lost time value of money. Johnson v. Eldridge, 799 N.E.2d 29, 33 (Ind. Ct. App. 2003), trans. denied. If a defendant has the option to terminate the dispute at a known dollar cost, and chooses not to do so, that defendant, and not the plaintiff, should bear the cost of the time value of money in the intervening period if the ultimate result is within the parameters set by the legislature. * * *

Here, Inman argues that the trial court should have granted her motion and awarded her prejudgment interest because she met all of the requirements of the TPIS. State Farm responds that Inman does not meet the statutory requirements because an underinsured motorist claim arises out of a contract and is not a civil action arising out of tortious conduct as required by the statute. State Farm also argues that it is not liable for any amount beyond the $100,000 policy limit. We address each of these contentions in turn. * * *

Although no Indiana cases have addressed this issue, we find Woods v. Farmers Insurance of Columbus, Inc., 666 N.E.2d 283 (Ohio Ct. App. 1995), to be instructive. * * *

We find the reasoning of these cases, as well as similar ones in other jurisdictions, to be persuasive. * * * We therefore hold that a claim against one's insurer for underinsured motorist benefits is a
civil action arising out of tortious conduct, and the award of prejudgment interest pursuant to Indiana Code section 34-51-4-5 in such a case is appropriate.

State Farm also responds that prejudgment interest is not appropriate in this case because Inman has already reached the $100,000 limit on her policy, and an award of prejudgment interest would improperly exceed the policy limit. Although no Indiana cases have addressed this issue, Potomac Insurance Company v. Howard, 813 S.W.2d 557 (Tex. Ct. App. 1991), is instructive. * * *

Here, based upon the purpose of the TPIS as well as the public policy considerations as already stated in Denham, we hold that an insurer can be required to pay prejudgment interest in excess of uninsured and/or underinsured motorist limits in an action brought by an insured for failure to pay uninsured and/or underinsured motorist coverage. Our holding today is consistent with the United States Northern District of Indiana Court's decision in Schimizzi v. Illinois Farmers Insurance Company, 928 F.Supp. 760 (N.D. Ind. 1996), which awarded Schimizzi $250,000, her uninsured motorist policy limit, as well as $46,799.20 in prejudgment interest.

This holding is also consistent with the Indiana supreme court's treatment of prejudgment interest in medical malpractice cases where that court has held that a qualified health care provider is responsible for the collateral litigation expense of prejudgment interest even if the expense brings the provider's total liability over the cap. * * *

Based upon the foregoing, we conclude that the trial court erred in denying Inman's motion for prejudgment interest pursuant to Indiana Code section 34-51-4-5. Reversed and remanded with instructions that the trial court's order be amended to require payment of prejudgment interest consistent with this opinion.

In Christopher Jewell v. State of Indiana , a 12-page opinion, Judge Vaidik writes:
Christopher Jewell appeals his convictions and aggregate forty-year term for six counts of sexual misconduct and child molesting. Jewell was arrested and charged for another alleged offense not at issue here. He posted bond and secured counsel. While that charge was pending, law enforcement enlisted the victim in this case to call Jewell and elicit incriminating statements relating to his sexual misconduct. The calls were recorded. Jewell was charged thereafter with the instant sex offenses, and Jewell’s recorded statements were introduced against him at trial. Jewell argues that the statements were procured and admitted in violation of his federal and state constitutional rights to counsel. We conclude that Jewell’s statements were not obtained unconstitutionally. The right to counsel is offense-specific and attaches only after adversarial judicial proceedings have commenced. Although Jewell had been charged and had hired counsel in an unrelated case, he had not been charged with the present crimes when the subject phone calls took place. Accordingly, Jewell’s right to counsel for this proceeding had not attached, and the investigatory phone calls were permissible. We also find that Jewell’s aggregate sentence is not inappropriate in light of the nature of his offenses or his character. We affirm the judgment and sentence of the trial court.
In Paternity of R.M.; K.B. v. S.M., a 22-page, 2-1 opinion, Judge Brown writes:
K.B. (“Putative Father”) appeals the trial court's order granting the motion filed by S.M. (“Mother”) to dismiss his petition to establish paternity of Mother's child, R.M., based on the doctrine of laches. Because Mother designated evidence in support of her motion to dismiss, we review the trial court's order as one granting summary judgment. Putative Father raises three issues, one of which we find dispositive, that is whether the designated evidence supports the trial court's conclusion that Putative Father's petition to establish paternity is barred by laches as a matter of law. We reverse and remand. * * *

VAIDIK, J., concurs.

NAJAM, J., dissents with separate opinion. [that concludes] A trial court exercises its sound discretion when acting on an equitable defense such as laches. In re K.H., 709 N.E.2d at 1036. Putative Father has not shown that the trial court abused its discretion when it granted Mother's motion to dismiss considering Putative Father's failure to designate any evidence, Mother's designated evidence, and the reasonable inferences from that evidence. The designated evidence supports the trial court's conclusion that Putative Father's petition is barred by laches. I would, therefore, affirm the trial court's dismissal of Putative Father's petition.

In Roscoe C. Fry, II v. State of Indiana , a 9-page opinion, Judge Brown writes:
Roscoe C. Fry II, pro se, appeals the trial court's denial of his motion to correct erroneous sentence. Fry raises two issues, which we revise and restate as whether the court erred in denying Fry's motion. The State raises the issue of whether Fry's appeal is moot. We reverse and remand.
NFP civil opinions today (4):

Term. of Parent-Child Rel. of S.H., et al.; A.M. v. IDCS (NFP)

Paternity of C.B.; D.B. v. A.C. (NFP)

Z.T., Alleged to be C.H.I.N.S.; S.W. v. I.D.C.S. (NFP)

C.S. v. Review Board (NFP)

NFP criminal opinions today (14):

Charles Hartsell, Jr. v. State of Indiana (NFP)

Kenneth Hopper v. State of Indiana (NFP)

Kenny Hawkins v. State of Indiana (NFP)

Donnie R. Pierce v. State of Indiana (NFP)

Jeffrey Adams v. State of Indiana (NFP)

Troy H. Worthington, Sr. v. State of Indiana (NFP)

Johnny N. Standberry v. State of Indiana (NFP)

Bernard Markey v. State of Indiana (NFP)

Dione J. Osuna v. State of Indiana (NFP)

Chester L. Tripplett v. State of Indiana (NFP)

Opie Glass v. State of Indiana (NFP)

Billy R. Case v. State of Indiana (NFP)

Wesley Crabtree v. State of Indiana (NFP)

Hezekiah Colbert v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 30, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two filed yesterday by Tax Court

Somehow, unlike the other two courts, the filed Tax Court decisions never show up online until the next day. Maybe that will be looked into in the new year.

Two NFP Tax Court opinions were filed Dec. 29th:

In AOL, LLC v. Ind. Dept. of State Revenue (NFP), a 10-page opinion, Judge Fisher writes:

AOL, LLC (AOL) appeals the Indiana Department of State Revenue’s (Department) final determinations denying its two claims for refund of use tax paid from January 1, 2003 through November 30, 2006 and May 1, 2006 through June 30, 2007 (the tax periods at issue). The matter, currently before the Court on the parties’ cross-motions for summary judgment, presents one issue: whether the Department’s denials of AOL’s claims were improper. * * *

As this Court has previously explained, two conditions must be met in order for AOL to incur a use tax liability: 1) AOL must have acquired tangible personal property (i.e., the ROM Packages and CM Packages) in retail transactions; and 2) AOL must have then used, stored, or consumed that tangible personal property in Indiana. See Morton Bldgs., 819 N.E.2d at 918. While AOL indisputably used the ROM Packages and CM Materials in Indiana, it did not acquire them in retail transactions or retail unitary transactions. Rather, in engaging the assembly houses to assemble, print, and ultimately mail the ROM Packages to its prospective members, AOL purchased a service, and not tangible personal property. See API I, No. 49T10-0305-TA-26, slip op. at 7-13. Likewise, in engaging the letter shops to print and then mail the CM Materials to its current customers, AOL again purchased a service, not tangible personal property. See id. AOL owned all of the raw materials used to produce the ROM Packages and the CM Materials; consequently, the assembly houses and letter shops had nothing to sell to AOL other than their services. Id. (footnote added). See also API II, 916 N.E.2d at 754-57. Accordingly, the Department’s denials of AOL’s two claims were improper.

CONCLUSION. AOL owes no Indiana use tax on its in-state use of the ROM Packages and the CM Materials: in purchasing assembly, printing, and mailing services, AOL did not acquire tangible personal property; accordingly, while AOL used its ROM Packages and CM Materials in Indiana, it did not acquire them in either retail transactions or retail unitary transactions. Therefore, the Department’s final determinations, denying AOL’s two claims for refund are REVERSED. The Department is ordered to refund to AOL the use taxes it paid during the tax periods at issue. The parties shall bear their own costs.

In United Parcel Service Inc. v. Indiana Dept. of State Revenue (NFP) , a 6-page opinion, Judge Fisher writes:
United Parcel Service, Inc. (UPS) challenges the final determination of the Indiana Department of State Revenue (Department) that: a) denied UPS's claim for refund of corporate income taxes paid for the year ending December 31, 2000; and b) assessed UPS with an additional corporate income tax liability for the year ending December 31, 2001 (the years at issue). The matter is currently before the Court on the parties' cross-motions for summary judgment. The parties present one issue for the Court's consideration: whether, during the years at issue, UPS properly excluded from its Indiana corporate income tax returns the income of two of its affiliates because they were “subject to” the gross premium privilege tax (premiums tax) under Indiana Code § 27-1-18-2. * * *

Statutes relating to the same general subject matter are in pari materia and will be construed together so as to produce a harmonious result. Ind. Dep’t of State Revenue, Inheritance Tax Div. v. Estate of Pickerill, 855 N.E.2d 1082, 1085 (Ind. Tax Ct. 2006) (citation omitted). Indiana Code § 6-3-2-2.8(4), in conjunction with Indiana Code § 27-1-18-2, clearly demonstrate that UPINSCO and UPS Re were “subject to” the premiums tax under Indiana Code § 27-1-18-2. The Court therefore GRANTS UPS's motion for summary judgment and DENIES the Department's motion for summary judgment. The Department's denial of UPS's claim for refund of corporate income tax for 2000 and its assessment of additional corporate income tax against UPS for 2001 are REVERSED. The parties shall bear their own costs.

Posted by Marcia Oddi on Thursday, December 30, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Courts - "State files to block lawsuit naming prosecutors"

Sophia Voravong reports today in the Lafayette Journal Courier:

County prosecutors should be immune from a lawsuit alleging that they violated Indiana law by mishandling proceeds from drug forfeiture cases, the Indiana Attorney General's Office is arguing.

State deputy attorney general David A. Arthur filed a motion this week in Marion Superior Court seeking to dismiss the civil complaint against 78 of Indiana's 92 prosecuting attorneys.

The list of defendants includes Tippecanoe County's prosecutor, Pat Harrington.

The lawsuit against the group of prosecutors was filed in July by Indianapolis-based law firm Roberts & Bishop and unsealed by the court in November. The complainant, Roberts & Bishop attorney Adam Lenkowsky, contends that prosecutors routinely hold on to assets seized in criminal proceedings that should be turned over to Indiana's Common School Fund.

In an 18-page memorandum in support of the motion to dismiss, Arthur argues that the prosecutors are simply doing their jobs as allowed by Indiana law. He also criticizes the merits of the lawsuit, which was brought as a false claims act.

"... (T)he complaint in this case is devoid of facts," Arthur wrote. "The defendants are left to guess what they are alleged to have done that constitutes fraud on the state.

" ... The absolute lack of logic of this case shows it should be dismissed."

Arthur further argues that the allegations in the lawsuit are against civil judgments ordered by trial court judges, not the prosecutors' actions. As such, Marion Superior Court would not have jurisdiction to review the judgments of those courts.

Here is the 18-page memorandum in support of the motion to dismiss, filed by Deputy AG Arthur on Dec. 27, 2010. Here is a Dec. 28th motion filed by the plaintiffs, who move to strike the Attorney General's appearance filed in this case and to strike the Motion to
Dismiss filed by the Attorney General on behalf of the Defendants.

Here is a long list of earlier ILB entries on forfeiture.

Posted by Marcia Oddi on Thursday, December 30, 2010
Posted to Indiana Courts

Ind. Courts - "New location for Marion County traffic court aims to ease frustrations and bolster efficiency"

Carrie Richie reports today in the Indianapolis Star about the new location of the Marion County Traffic Court, starting Jan. 10th. A sidebar lists the new features:

• 12,000 square feet, about 3,000 more than the current facility.
• More parking.
• Improved security that will allow people to go in and out of court at will.
• Larger courtroom that will accommodate 200 people.
• Seating for those waiting to resolve an issue.
• Television monitors in waiting areas that will show what's going on in the courtroom.
• Paperless records system.
• Eventually, the court will add a play area for children and kiosks that will allow people to pay tickets 24 hours a day, seven days a week.
From the story:
"Night and day is not even a good description of how the difference is going to be," traffic court Judge Bill Young said.

The court's new home, 8115 E. Washington St., is a former Target store on the city's Far Eastside. During the past three months, it has undergone a $650,000 interior renovation, with $240,000 of that cost covered by Centre Properties, the building's owner. The company also will pay for some exterior renovations, and the city is spending about $200,000 for new furniture and technology.

Court records and tickets will be scanned and stored digitally so people won't have to wait while clerk staff members try to find tickets.

Eventually, the court will put kiosks inside and outside the building where people can pay their tickets. The outside kiosks will allow people to pay 24 hours a day, seven days a week. Young hopes those will be installed by the end of March.

Security checks will be located just inside the door, which will ensure safety and allow anyone to enter and exit the courtroom at will. Now, people often get shut out of the courtroom because of security issues, as well as limited seating.

The court also will have a spacious waiting area that will feature ample seating, vending machines and television monitors so people can see what's going on in court without being in the courtroom.

The new setup also will allow people to get information about tickets and pay them at one station. Now, they have to wait in two separate lines, which often are lengthy.

"They could be the cheeriest person in the world, but they're going to be angry when they leave," Young said of the current setup.

Readers may recall this ILB entry from Nov. 24, 2010, headed "Marion County Traffic Court Judge Young suspended for 30 days." The Nov. 23rd Order of the Supreme Court stated:
William E. Young will be suspended for thirty (30) days from office without pay, and the costs of this proceeding will be assessed against him. An opinion of the Court will follow in due course, which shall indicate when the suspension will take effect.
The ILB has just checked the docket in the case, 49 S 00 - 1007 - JD - 00374, and finds no more recent entry.

The upshot? We don't know yet whether Judge Young will be sitting when the traffic court opens in its new location on Jan. 10th.

Posted by Marcia Oddi on Thursday, December 30, 2010
Posted to Indiana Courts

Law - More on "The Changing Role of Criminal Defense Lawyers"

Updating this ILB entry from Dec. 22nd, here is another story on the impact of the Supreme Court's March decision in Padilla v. Kentucky. This lengthy story, in today's Washington Post, reported by Tom Jackman, begins:

A recent U.S. Supreme Court ruling that noncitizens in criminal cases must be advised of the possible consequences of a conviction has sparked a flurry of appeals by defendants who claim that they didn't know that conviction would lead to deportation.

But in Virginia, a similar battle has emerged over whether judges can revisit and reopen old cases or even summarily revise the sentences to avoid a convict's removal from the country.

A Loudoun County General District Court judge recently reopened four cases involving defendants who say they would not have pleaded guilty if they had known that they would be deported. In one instance this month, Loudoun prosecutors sought a court order to stop the judge from reopening such cases, but a Circuit Court judge refused.

Posted by Marcia Oddi on Thursday, December 30, 2010
Posted to General Law Related

Courts - "Golf Courses: A Gold Mine for Lawsuits"

On Sept. 13th, 2010 the Supreme Court heard oral argument in the case of Cassie Pfenning v. Joseph Lineman, et al. - here is the summary from the Court's site:

After Cassie Pfenning was struck by a golf ball while driving a beverage cart on a golf course, she filed a complaint for negligence against her grandfather who invited her to the golf event, the golfer who hit the ball that struck her, the Elks County Club where the event was held, and Whitey's 31 Club Inc., which sponsored the event. The Grant Superior Court entered summary judgment for all the defendants. The Court of Appeals affirmed.
Here was the beginning of Judge Kirsch's Feb. 15, 2010 dissent in the COA opinion:
Hmmm. After being abandoned by her grandfather and his sister, in whose care she had been entrusted, a sixteen-year-old girl, without training or experience in golf course safety or etiquette, is injured at a golf outing sponsored by a bar, while she is driving a beverage cart loaded with beer dispensed by one of the bar's employees. Surely, there is a duty here someplace.
An opinion has not yet been issued. For coverage of the oral argument, see this ILB entry from Sept. 14, 2010, and this entry from Sept.13th.

The pending decision came to mind a few days back when I read this Dec. 22, 2010 NY Times story by Peter Applebome. A sample:

Ever since people have trod meadows and moors intent on striking hard white balls with bottom-weighted clubs, people have been suing one another for shots gone awry. Golf has evolved into the perfect litigation machine, beloved by lawyers, perhaps because so many are making a good living filing suits, defending suits and providing advice on injuries, course and product design, environmental damage, discrimination and almost anything that could conceivably find its way into a courtroom.

“Golf and the law seem to have been made for each other,” writes Craig Brown, a law professor at the University of Western Ontario in “Why Lawyers Love Golf,” published in 2007 in Australia by Scribblers Publishing. “On every fairway, in every stretch of rough, in every clubhouse, in every golf bag, at every swing at the ball, in every set of plans for a new course, in every application for club membership, there lurks a potential lawsuit.”

There’s much logic to this. Golf involves hitting a rock-hard ball at high speed in unpredictable directions. Its devotees often range from the comfortable to the wealthy, the perfect demographic for suing and being sued. Golfers cover all ages, but many are old enough that the misplaced step onto sod covering a hole that is shrugged off by a 20-year-old ends the square-dancing career of a retiree in her 60s. It involves vast areas of land, often including wetlands and endangered species, and tons of fertilizer and pesticides. Its products (balls alone are a three-quarter billion-dollar business in the United States) and brand names (witness the Big Bertie knockoffs of Big Bertha drivers) are the subject of billion-dollar patent infringement and intellectual property claims.

So the legal issues come in all shapes and sizes. Often they involve golf carts, which can tip over and kill or injure their occupants. They involve environmental issues: the Battlefield Golf Club in Virginia was sued for $1.6 billion in 2009 by 400 nearby residents who claimed that 1.5 million tons of fly ash used to construct the course contaminated their well water.

Posted by Marcia Oddi on Thursday, December 30, 2010
Posted to Courts in general

Environment - In New York, new rules curb dirty wood-fired boilers

The subhead to this Dec. 23, 2010 story in the Albany Times Union read: "New rules curb dirty wood-fired boilers."

Ever wonder what these outdoor wood-fired boilers that people are protesting look like? There is a gread photo accompanying the story.

From the story, reported by Jimmy Vielkind:

ALBANY -- Wood-fired boilers cannot be used to burn trash, paper or other waste products under new rules approved Wednesday by the state's Environmental Review Board.

Owners cannot site new boilers -- common in rural areas for heating and waste disposal -- within 100 feet of adjacent property lines, unless they are used in agriculture. And the boilers may not be within 100 feet of a neighboring house.

New boilers sold in New York state must meet stricter emissions standards, including smokestacks at least 18 feet high. The regulations were opposed by the Farm Bureau and several Republican legislators but advocated by officials at the state Department of Environmental Conservation.

"What we're saying here is that there are 20 different units you can choose from that meet these standards," said Acting DEC Commissioner Peter Iwanowicz. He said the industry is offering cleaner boilers and the state wants users to burn clean, dry fuel. * * *

The state attorney general's office estimates more than 14,500 boilers were installed in the state between 1999 and 2007. The dirtiest versions can emit the same amount of air pollution as 1,000 oil furnaces, DEC officials said. The head of the American Lung Association in New York said he was pleased with the regulation, but that more must be done.

An outdoor wood-fired boiler rule has been under development in Indiana for over five years. Here is a list of some of the entries. Here is the most recent status report.

Posted by Marcia Oddi on Thursday, December 30, 2010
Posted to Environment

Wednesday, December 29, 2010

Ind. Gov't. - More on "Former two-term Indianapolis Mayor Stephen Goldsmith is making a name for himself as New York's deputy mayor" [Updated]

That is the headline from a still-available Indy WRTV13 story less than two months old, which reported:

He's working to help Mayor Bloomberg reinvigorate New York City. If you are wondering what a Deputy Mayor in charge of operations is really in charge of, Goldsmith is in charge of police, fire, transportation, sanitation, buildings and environmental protection departments just to name a few. In other words, the day-to-day operation of New York City.
Including, of course, snow removal. So, how's that working out for him?

According to this story today from Newsday:

More than one longtime observer of this regime at City Hall has pointed out that things may have gone downhill since Ed Skyler left as deputy mayor. If he's had a role, like "bringing fresh insight" to city operations, new Deputy Mayor Stephen Goldsmith, former Indiana mayor, hasn't been in the TV shots along with the fire and police commissioners and OEM director Joseph Bruno.
See also this story from the NY Daily News.

The Indy Star's Kevin Morgan had this prescient column on Dec. 15th, headed "Snow removal: Is your town up to speed?" Some quotes:

And we're now into the months when getting the job done often comes down to one thing -- getting the snow off the streets.

A Chicago mayor named Michael Bilandic learned this the hard way, losing his party's nomination in part because of the city's ineffective response to a recent snowstorm.

On the other hand, a first-term mayor, Bill Hudnut, assumed a highly visible role in Indianapolis' response to the Blizzard of 1978, and it's often credited for building the popularity that sent him to an unprecedented three more terms in office.

When I was a reporter covering city-county government during the administration of his successor, Steve Goldsmith, I recall quite a few issues that were controversial and divisive. However, few spurred the public debate as much as how his snow-removal strategies measured up to Hudnut's.

[Updated 12/30/10] For an exhaustive analysis of this blizzard's impact on NYC, and a model for looking at any similar occurance, see the FiveThirtyEight NYT blog entry by Nate Silver. ("FiveThirtyEight’s mission is to help New York Times readers cut through the clutter of this data-rich world. The blog is devoted to rigorous analysis of politics, polling, public affairs, sports, science and culture, largely through statistical means.")

Posted by Marcia Oddi on Wednesday, December 29, 2010
Posted to Indiana Government

Ind. Gov't. - "Illness may delay IURC ethics hearings"

So reports the Indianapolis Star's John Russell in this interesting story.

Posted by Marcia Oddi on Wednesday, December 29, 2010
Posted to Indiana Government

Ind. Decisions - 7th Circuit issues two Indiana rulings today

In U.S. v. Cartwright (SD Ind., Lawrence), a 12-page opinion, D. Judge Alelman (Of the Eastern District of Wisconsin, sitting by designation) writes:

Police pulled Dewayne Cartwright over for a traffic violation, arrested him when he failed to produce a driver’s license and gave a false name, then searched the car incident to his arrest, locating a gun in the back seat. Charged with possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), Cartwright moved to suppress the firearm, relying on Arizona v. Gant, 129 S. Ct. 1710 (2009), a decision that came down subsequent to his arrest and which narrowed the scope of a permissible automobile search incident to arrest. The district court held an evidentiary hearing, then denied the motion, concluding that the police would have inevitably discovered the firearm pursuant to an inventory search of the car. Cartwright entered a conditional guilty plea, and the district court sentenced him to 84 months in prison. Cartwright now appeals the denial of his motion to suppress, arguing that the district court erred in applying the inevitable discovery doctrine. We affirm.

In U.S. v. Taylor (ND Ind., Miller), an 11-page opinion, Judge Williams writes:

James K. Taylor pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced to 64 months’ imprisonment. His sentence was based in part on the district court’s conclusion that his prior Indiana conviction for Class C felony battery, Ind. Code § 35-42-2- 1(a)(3), qualified as a “crime of violence” under § 4B1.2(a) of the federal sentencing guidelines, enhancing his recommended base offense level. Taylor appeals the district court’s finding, arguing that his battery conviction was not a crime of violence for the purposes of the federal sentencing guidelines. We find that the Indiana battery offense of which Taylor was convicted—touching someone in a rude, insolent, or angry manner by means of a deadly weapon—qualifies as a crime of violence because such conduct will ordinarily involve, at a minimum, the threatened use of physical force. We affirm.

Posted by Marcia Oddi on Wednesday, December 29, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Month-long, year-end desk-clearing continues: Court of Appeals issues 6 today (and 11 NFP)

For publication opinions today (6):

In Paternity of P.R., et al.; H.B. v. J.R. , an 11-page, MUST READ opinion, Judge Vaidik writes:

Pursuant to a 2010 amendment to Indiana Evidence Rule 201(b), a court may now take judicial notice of “records of a court of this state.” Because H.B. (“Mother”) did not request an opportunity to be heard pursuant to Rule 201(e) after the trial court in this case took judicial notice, we conclude that the court properly took judicial notice of a protective order that Mother obtained against an ex-boyfriend and then considered it in the custody modification proceedings with J.R. (“Father”). We therefore affirm the trial court. * * *

Mother raises two issues on appeal, which we reorder and restate as follows. First, she contends that the trial court erred in considering the substance of the protective order she obtained against Davis because that protective order was not admitted into evidence at the hearing. Second, she contends that the trial court erred in modifying custody of P.R. and A.R. to Father. * * *

Indiana Evidence Rule 201 governs judicial notice. Evidence Rule 201 was amended in 2009 and went into effect on January 1, 2010. Pursuant to the amendment, a court may now take judicial notice of “records of a court of this state.” Ind. Evidence Rule 201(b)(5). Before this amendment, a court could not take judicial notice of its own records in another case previously before it, even on a related subject with related parties. See, e.g., Whatley v. State, 847 N.E.2d 1007, 1009 (Ind. Ct. App. 2006).

In addition, “[a] court may take judicial notice, whether requested or not,” Evid. R. 201(c), and judicial notice may be taken at any stage of the proceeding, id. at (f). And a party does not have to be notified before a court takes judicial notice. Rule 201(e) instructs:

A party is entitled, upon timely request, to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(Emphasis added). * * *

The fact that Mother is now appealing the trial court's action does not constitute a timely request for an opportunity to be heard pursuant to Rule 201(e). Instead, she had to make that request to the trial court.

Although we conclude that the trial court properly took judicial notice of the protective order file pursuant to Evidence Rule 201, we point out that the better course of action would have been for the court to have given the parties notice and an opportunity to be heard before taking judicial notice and issuing its order. * * * [T]he danger of having a broad spectrum of information at the disposal of courts is that mistakes in input, inscription, and transmission can occur. To alleviate the danger of such errors, litigants must be given the opportunity to explain or respond to the judicially-noticed information. We understand that the Indiana Rules of Evidence allows litigants to respond to this information at any stage of the proceeding, but we believe that, where practicable, the best practice is for courts to notify the parties before taking notice of and issuing a ruling which utilizes this information.

In Anthony M. Sewell v. State of Indiana, a 4-page opinion, Judge Mathias writes:
Anthony Mark Sewell (“Sewell”) was convicted in Shelby Superior Court of Class A misdemeanor battery and Class B misdemeanor criminal mischief. Sewell appeals and argues that the State failed to present sufficient evidence to support his convictions. The State cross-appeals and argues that this appeal should be dismissed because Sewell’s notice of appeal was untimely filed. Concluding that this court lacks subject matter jurisdiction due to Sewell’s failure to timely file a notice of appeal, we dismiss. * * *

The record clearly shows that Sewell’s letter to the trial court requesting an appeal was received within the thirty-day time limit imposed by Appellate Rule 9. However, the letter did not comply with the content requirements for a notice of appeal. * * *

Moreover, although the trial court purported to grant Sewell additional time to file a notice of appeal, no provision of the appellate rules permits trial courts to expand the time limit prescribed by Appellate Rule 9. Because the trial court lacked jurisdiction to grant Sewell additional time to file his notice of appeal, the January 5, 2009 notice of appeal filed by Sewell’s appellate counsel was untimely.

In State of Indiana v. Robert J. Seidl, a 9-page opinion, Judge Najam writes:
Pursuant to Indiana Code Section 35-38-4-2(5), the State appeals the trial court's order granting Robert J. Seidl's motion to suppress the State's evidence against him. The State raises a single issue for our review, namely, whether the trial court erred when it granted Seidl's motion to suppress. * * *

In sum, the trial court's order granting Seidl's motion to suppress is contrary to law. As such, we reverse and remand for further proceedings.

Jeffrey L. Gavin v. Calcars AB, Inc., and Astra Financial, Inc. - "[W]here, as here, a claimant initiates a wage dispute after being involuntarily terminated from employment, he must bring his claim under the Wage Claims Statute.

"It is undisputed that Gavin did not submit his claims to the Department of Labor prior to filing his complaint with the trial court. Accordingly, his complaint is barred as a matter of law. See Ind. Code § 22-2-9-4. The trial court did not err when it entered summary judgment in favor of Calcars."

In State of Indiana v. Richard J. Laker, Jr. , a 6-page opinion in a case with a pro se appellee, Judge Vaidik writes:

The State charged Richard Laker with various counts of operating a motor vehicle while privileges are suspended and operating while intoxicated. The State’s charges were premised on Laker’s alleged operation of a farm tractor. The trial court dismissed all counts, finding that the operation of a farm tractor could not serve as the basis for any of the alleged offenses. We conclude that the operation of a farm tractor cannot sustain charges of operating while privileges are suspended, but it may sustain charges of operating while intoxicated. We affirm in part, reverse in part, and remand.
Brian J. Woods v. State of Indiana - "The evidence presented at trial was sufficient to sustain the trial court’s determination that Woods is an habitual offender. Woods’s conviction is therefore affirmed."

NFP civil opinions today (4):

E-Z Construction, Co., Inc. v. Sellersburg Stone Co., Inc. (NFP)

M.M., Alleged to be C.H.I.N.S.; S.H. v. I.D.C.S. (NFP)

Vilma (Struss) Papa v. Nicholas Struss (NFP)

Term. of Parent-Child Rel. of N.B.; N.B. v. I.D.C.S. (NFP)

NFP criminal opinions today (7):

J.B. v. State of Indiana (NFP)

Leslie J. Edwards v. State of Indiana (NFP)

Diven Williams v. State of Indiana (NFP)

William Roberts v. State of Indiana (NFP)

Kendall Bradbury v. State of Indiana (NFP)

Edward Weaver v. State of Indiana (NFP)

Joseph R. Fabre v. State of Indiana (NFP)


Posted by Marcia Oddi on Wednesday, December 29, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court rules Maryland law applies in environmental insurance case

In National Union Fire Insurance Co. of Pittsburgh, PA., et al. v. Standard Fusee Corp., an 11-page, 5-0 opinion in a many-lawyered, environmental insurance law case, Justice Sullivan writes:

Insurance companies question whether they have a duty to defend an insured in environ-mental remediation proceedings under policies alleged to cover risks in Indiana and California. Predicate to answering that question is determining whether the law governing the policies' interpretation is “site-specific” (whereby Indiana law governs the policies' interpretation with respect to the Indiana site and California law with respect to the California site) as held by the Court of Appeals or “uniform” (whereby a single state's law governs) as argued by both parties. But while agreeing that the interpretation should be uniform, the insurance companies argue that Maryland law applies; the insured argues for Indiana law.

The uniform approach has long been Indiana law and we reaffirm it here. Under that approach, we find that Maryland is the state with the most intimate contacts to the facts and that its law should therefore be applied to resolve this dispute. * * *

The Court of Appeals reversed the trial court's determination that Indiana law governed the entire dispute. Instead, the Court of Appeals adopted a “site-specific” approach to choice of law, whereby Indiana law governed the interpretation of the policies with respect to the Indiana site and California law with respect to the California site. Nat'l Union Fire Ins. Co. v. Standard Fusee Corp., 917 N.E.2d 170, 181 (Ind. Ct. App. 2009). * * *

Courts faced with these cases have generally addressed choice-of-law issues in one of two ways – either by what is called a “uniform-contract-interpretation” approach or by a “site-specific” approach. Id. at 362. The uniform-contract-interpretation approach applies the law of a single state to the whole contract even though it covers multiple risks in multiple states; the site-specific approach applies the law of the state or states where the insured risks are located, unless another state has a more significant relationship to the particular issue. Id. * * *

The Indiana Court of Appeals has faced cases similar to the present one at least four times in the recent past and in each case has applied the uniform-contract-interpretation approach to resolve choice-of-law issues. [cites omitted by ILB] Indeed, the Court of Appeals in this case recognized the prior practice of generally following the uniform-contract-interpretation approach but nevertheless applied the site-specific approach. * * *

Having concluded that the uniform-contract-interpretation approach should be followed in cases like the present one, we now turn our attention to its application in this case. Although both SFC and Insurers petitioned for application of the uniform approach, they disagree as to which state's law – Indiana or Maryland – should be applied. As discussed in part I, supra, the law of the state with the most intimate contacts applies. In analyzing the respective contacts with Indiana and Maryland, the trial court in this case found that four of the five factors listed in Restatement (Second) section 188 were inconclusive but that one factor, the place of performance, clearly pointed to Indiana. We reach a different result. * * *

Although none of factors are determinative, “the overall number and quality of contacts” favor Maryland over Indiana. Coachmen Indus., 838 N.E.2d at 1181. As the state in most inti-mate contact, we hold that the substantive law of Maryland applies to the entire dispute.

Because Maryland is the state in most intimate contact, we reverse the trial court and remand this case for application of Maryland law to the entire dispute.

Posted by Marcia Oddi on Wednesday, December 29, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - New judges in Boone, Shelby counties

Two announcements today from the Governor:

Posted by Marcia Oddi on Wednesday, December 29, 2010
Posted to Indiana Courts

Ind. Decisions - More on: One NFP filed Dec. 27th by Tax Court

The NFP opinion filed Dec. 27th, Lake County Assessor, North Township Assessor, et al. v. Amoco Sulfur Recovery Corp., and BP Products North America, Inc., is given some context today by stories in papers from The Region.

Keeith Benman of the NWI Times has a very brief story headed "County appeal of BP assessment lives to see another day." Some quotes:

On Monday, the court dismissed BP's motion to dismiss the case. BP had argued the Lake County assessor and North Township assessor did not include Amoco Sulphur Recovery Corp. in its tax assessment appeal and sent the appeal only to the lawyer for BP.

The court ruled those were technicalities that did not invalidate the appeal. * * *

The Lake County assessor and North Township assessor appeal the state's assessment of BP every year and the subsequent confirmation of that assessment by the Indiana Board of Tax Review.

In 2001, Gov. Frank O'Bannon signed into law House Bill 1902, which stripped Lake County and local assessors of their powers to assess property belonging to BP, U.S. Steel Gary Works, Ispat Inland Inc. and International Steel Group. Certain divisions of Ispat Inland and International Steel Group eventually were bought by ArcelorMittal.

Chelsea Schneider Kirk reports for the Gary Post Tribune in a stroy headed "Lake can appeal state tax ruling on BP: 6 years of tax exemptions challenged, could mean $20M windfall for county." Some quotes:
The appeal is part of a long line of court filings Lake County has made to recoup a tax exemption the county believes BP is incorrectly using. If Lake County ultimately wins cases disputing the oil giant's tax filings from 2004 through 2010, county attorney John Dull estimates that would force BP to pay at least $20 million in taxes to the financially-strapped county.

At the heart of the issue is a tax exemption BP claims on air pollution equipment, such as filters or scrubbers at the refinery.

BP spokesman Tom Keilman said the company hasn't had the opportunity to review Monday's filing.

"We continue to believe our past returns were filed properly," Keilman said, "and the county continues to litigate this matter."

Dull is awaiting a ruling whether the Indiana Supreme Court will hear the county's case on tax years 2004 through 2006. In that case, the Indiana Tax Court ruled BP rightfully claimed the exemption. Cases dealing with BP's returns from 2008 through 2010 are still at the Tax Board level.

"We're going forward with the cases we believe we can get positive outcomes without spending lots of money," Dull said. "Given the fact that money is tight, we're going to have to make a decision on what we do. We're waiting for the supreme court case."

Posted by Marcia Oddi on Wednesday, December 29, 2010
Posted to Ind. Tax Ct. Decisions

Tuesday, December 28, 2010

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Richard Childress, Jr. v. State of Indiana , an 8-page opinion, Judge Robb writes:

Following a jury trial, Richard Childress, Jr., appeals his convictions of robbery and criminal confinement, both Class B felonies. On appeal he raises the sole issue of whether the trial court erred in admitting evidence the State did not disclose until the second day of trial. Concluding the State’s late disclosure did not impair Childress’s right to a fair trial, we affirm.
In Warren L. Williams, et al. v. David Orentlicher, et al. , a 23-page, 2-1 opinion, Judge Najam concludes:
In sum, we hold that the trial court properly denied Williams and Frankel's motion to compel arbitration. The Trust is not a party to the employment contracts, and it is the party opposed to the motion to compel. As such, the Trust is not estopped from disclaiming the arbitration clauses, even if the Trust is a third party beneficiary to the contracts. And the “close relationship” between the Trust and the ISTA is not, on these facts, legally sufficient to compel the Trust to arbitrate its claims against Williams and Frankel. Affirmed.

BAKER, C.J., concurs.
KIRSCH, J., dissents with separate opinion. [that concludes] The employment agreements provide for arbitration “should any issue arise regarding the performance of any obligation under the terms of this Agreement . . . .” Id. at 362. The Trust received the benefits of those agreements in the managerial services that Williams and Frankel provided. Having received the benefits of such agreements, the Trust should not now be able to disavow the arbitration provisions contained therein. It should be bound to the arbitration provisions of such agreements to the same extent that ISTA itself is bound.

I would reverse the decision of the trial court and remand with instructions to grant the appellants' motion to compel arbitration.

NFP civil opinions today (2):

Cynthia Ann Painter v. Lee Andrew Granderson (NFP)

Term. of Parent-Child Rel. of A.P., et al.; K.G. and T.G. v. I.D.C.S. (NFP)

NFP criminal opinions today (3):

Natasha R. LaFave v. State of Indiana (NFP)

Carla Tabor v. State of Indiana (NFP)

Richard Huffman v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 28, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One NFP filed Dec. 27th by Tax Court

In Lake County Assessor, North Township Assessor, et al. v. Amoco Sulfur Recovery Corp., and BP Products North America, Inc. (NFP), a 7-page opinion, Judge Fisher concludes re the motion to dismiss:

Indiana Trial Rule 4.15(F) provides that no summons or service of process shall be set aside if either is “reasonably calculated” to inform the person to be served of the impending action before him. * * * While Lake County's summons and service of process was directed to “BP,” the Court finds that, given the facts before it, they were reasonably calculated to inform Amoco of Lake County's action against it. * * *

Indiana Trial Rule 4.6 generally provides that service upon an organization may be made upon its executive officer, its appointed agent, or its agent deemed by law to have been appointed to receive service. Ind. Trial Rule 4.6(A)(1) (emphasis added). Lake County and the Respondents have extensive history litigating the propriety of the Respondents' personal property tax assessments. In fact, earlier this year the Court issued an opinion regarding the Respondents' personal property tax assessments for the 2004, 2005, and 2006 tax years. * * * Given that fact, it was not unreasonable for Lake County to believe that Jeffrey Bennett was authorized to accept service on the Respondents' behalf in this case. Accordingly, the Court finds that Jeffrey Bennett was, for purposes of this case, the Respondents' appointed agent to receive service under Indiana Trial Rule 4.6.4.

Posted by Marcia Oddi on Tuesday, December 28, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Still more on: Supreme Court reverses guilty but mentally ill decision

Updating this ILB entry from Dec. 22, 2010, and this followup from Dec. 26, 2010, today Sophia Voravong of the Lafayette Journal Courier has this story, headlined "Lafayette family in fear after murder conviction is overturned." The story concludes:

Henry County Prosecutor Kit Crane plans to ask Indiana Attorney General Greg Zoeller to petition the Supreme Court to reconsider its ruling.

Part of that request would be based on new Justice Steven David, who supported overturning Galloway's conviction but was not on the high court when oral arguments were heard.

Gray said she also received a letter from Crane about what could happen next.

If the Supreme Court decision stands, Crane plans to file a petition to have Galloway committed to a state mental hospital for an "indeterminate" amount of time.

Some ILB comments:

First, the Dec. 26th ILB entry pointed to footnote 9, on pp. 9-10 of the opinion, which discusses the commitment process.

Second, re the prosecutor's complaint that Justice David "supported overturning Galloway's conviction but was not on the high court when oral arguments were heard," the consensus the ILB has heard is "good luck with that . . ."

It is up to the Court whether or not even to schedule oral argument in a transfer case. Moreover, the videocast of the oral argument in the Galloway case was available to Justice David, as were all the filings in the case.

Justice David has written the majority opinion in two cases so far. In Andres Sanchez v. State of Indiana, filed Dec. 22nd, there was no oral argument.

In Anthony D. Delarosa v. State of Indiana, a direct appeal and the first opinion from Justice David, filed Dec. 21st, the oral argument was held on May 13, 2010, long before Justice David took the bench.

On Sept. 13th, only four justices heard oral arguments in the case of Cassie Pfenning v. Joseph Lineman. The argument was held in Bloomington, at the Maurer School of Law. At the time, the ILB asked about Justice Boehm's absence, and received this response:

Unfortunately Justice Boehm was ill today. Chief Justice Shepard told the students he plans on participating in this case, but could not attend oral argument.
As it turns out, no decision has yet been issued in the case. If it had been issued while Justice Boehm was still on the bench, under the prosecutor's reasoning, J. Boehm would have been required to abstain.

Posted by Marcia Oddi on Tuesday, December 28, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on "Special judge named in Elizabeth clerk-treasurer case"

Updating this ILB entry from Aug. 20, 2010, Grace Schneider reported yesterday in the Louisville Courier Journal under the headline: "Failed ouster bid costs Harrison town $24,000 - so far." Some quotes:

The southern Harrison County town of Elizabeth ran up nearly $24,000 in bills for litigation and fees from its failed bid earlier this year to oust Clerk-Treasurer Adrian Hall – and the cost of the dispute could grow.

That’s approaching a third of the annual $80,000 budget for the southern Harrison County town of about 150 residents.

In August, the Elizabeth Town Council and former town Clerk-Treasurer Hugh Burns went to Harrison Circuit Court to ask for an injunction barring Hall from acting in his official capacity because of alleged misconduct and misuse of town funds.

The move came after the Indiana State Board of Accounts found that Hall, 30, who also worked as a laborer for the town’s water utility, failed to perform several duties required by the clerk-treasurer’s position, such as reconciling bank deposits and preparing annual financial reports.

The agency’s audit also cited Hall’s practice of issuing checks in advance to pay himself for the clerk-treasurer’s job and to some vendors, which isn’t allowed by state law. Hall was forced to repay $664.50 for improper mileage reimbursement and fees that should have been deposited into town accounts.

The three-member council cited those issues in going to court with Burns in an effort to remove Hall. Burns, who had lost the $800-per-month position by four votes to Hall in the 2007 town elections, was appointed by the council as town manager shortly after the court action was filed.

Following several court hearings in September before Special Judge Richard Striegel, the parties announced a settlement and agreed to dismiss the case. * * *

Larry Wilder of Jeffersonville, the attorney who represented Hall, said the town may face additional litigation because of actions by the council that he said “usurp Mr. Hall’s statutory duties and obligations.”

Posted by Marcia Oddi on Tuesday, December 28, 2010
Posted to Indiana Government

Ind. Courts - Still more on "Clarksville may scrap its town court"

Updating this ILB entry from Dec. 26th, Braden Lammers reports in the New Albany News & Tribune on the Dec. 27th meeting - some quotes from the long report:

CLARKSVILLE — The Clarksville Town Council quickly made a decision on whether or not to retain its town court at a special meeting Monday night.

A unanimous vote will keep the court in place, at least for another term.

The discussion to eliminate the town court was prompted by Judge Sam Gwin’s announcement that he would retire at the end of the year. A caucus will be held to decide who will take the bench in 2011 and since the four-year term expires in 2012, the seat would be up for re-election again next year.

Council President Greg Isgrigg said the discussion was brought up because of the timing of Gwin’s decision.

“If we were going to think about it, we had to do it before the end of the year because you can’t do it in an election year,” he said.

Another factor was that the court was operating at a loss.

“Well, the numbers were brought up to me by the clerk-treasurer, so I passed it onto the council,” Isgrigg said.

Clerk-Treasurer Gary Hall provided financial figures at the outset of the meeting that the court was operating at a deficit of $150,470 this year. The numbers presented for 2010 were an improvement on the previous two years, when losses totaled $165,487 and $226,206, respectively.

“The figures are important, but the idea of collecting revenues and being self-sustaining ... to the best of my knowledge you do not have a single department in this town that is totally self-sustaining,” Gwin said. “What the court is here for is to provide services to the community.” * * *

The Indiana Judicial Conference released a report last year calling for drastic changes in the state’s judicial system, including eliminating all municipal courts.

“The state is trying to do that on every level,” said Bill Wilson, president of the Clarksville Community Schools Corp. board, in reference to the state eliminating local offices. “I am a firm, firm believer in local control. The more you move government away from the people, the more people have trouble controlling that government.”

A different plea was made by Clarksville resident Chris Kraft.

“We talked about numbers, but we’re talking about people,” he said. “When you’re talking about doing away with the town court, you are talking about the jobs of these seven people right here,” he said, referring to the court employees in attendance. “If you begin to eliminate these departments, where does it stop?”

If the court was eliminated, the bulk of the caseload would have been passed to the Clark County courts. Sellersburg and Charlestown voted this year to eliminate their municipal courts, although Isgrigg said Charlestown have discussed reimplementing its court.

Posted by Marcia Oddi on Tuesday, December 28, 2010
Posted to Indiana Courts

Ind. Law - "New Ind. law bars electronics from regular trash"

A WIBC story reports:

Starting Saturday, it's illegal to throw your old T-V or computer into the regular trash.

A 2009 state law takes effect with the new year, banning computers, computer monitors, T-V's, printers and other electronics from being incinerated or dumped in a landfill. * * *

78 of Indiana's 92 counties have dropoff programs at electronics stores and other locations. In Indianapolis, DPW will accept old monitors and other electronics as part of its regular ToxDrop program for household hazardous waste.

Here is the law, IC 13-20.5-10, which is part of IC 13-20.5 Electronic Waste:
Chapter 10. Disposal Prohibitions

     Sec. 1. After 2010, a covered entity may not knowingly do any of the following:
        (1) Mix or allow the mixing of a covered electronic device or any other computer, computer monitor, printer, or television with municipal waste that is intended for disposal at a landfill.
        (2) Mix or allow the mixing of a covered electronic device or any other computer, computer monitor, printer, or television with any waste that is intended for disposal by burning or incineration.
As added by P.L.178-2009, SEC.27.

     Sec. 2. (a) A covered entity that violates this chapter is not subject to:
        (1) a criminal or civil action or penalty; or
        (2) any other sanction;
under this title or any other state law.
    (b) A violation of this chapter does not create a cause of action.
As added by P.L.178-2009, SEC.27.

Posted by Marcia Oddi on Tuesday, December 28, 2010
Posted to Indiana Law

Ind. Gov't. - Still more on: "Law would let cities declare bankruptcy

The Gary Post Tribune has two stories today on SB 105 (still not available), "a proposed bill filed last week by state Sen. Ed Charbonneau would offer governmental entities a chance to file bankruptcy."

One, by Chelsea Schneider Kirk, is headed "Gov supports bankruptcy option for local governments." The other is an editorial, titled "Municipal bankruptcy law would affect Gary."

For background, start with this ILB entry from Dec. 27th.

Posted by Marcia Oddi on Tuesday, December 28, 2010
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending December 22, 2010

Here is the Clerk's transfer list for the week ending December 22, 2010. It is one page (and 5 cases) long.

One transfer was granted for the week ending Dec. 22, 2010.

__________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the October 8, 2010 list.

Over 6.5 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Tuesday, December 28, 2010
Posted to Indiana Transfer Lists

Monday, December 27, 2010

Ind. Gov't. - More on: "Law would let cities declare bankruptcy"; and more from the ILB

Updating this important ILB entry from Dec. 18, 2010, which quoted a Dan Carden story in the NWI Times on a bill that would allow Indiana cities to seek bankruptcy, along with a link to May 1, 2010 ILB entry on a story by Jon Seidel of the Gary Post Tribune . . .

Today Monica Davey of the NY Times has a report headlined "In Michigan, a City Pleads for a Bankruptcy Option." Some quotes:

“We can make it until March 1 — maybe,” Mr. Cooper said of Hamtramck’s ability to pay its bills. Beyond that? The political leaders of this old working-class city perched on the edge of Detroit are pleading with the state to let them declare bankruptcy — a desperate move the state is not even willing to admit as an option under the current circumstances.

“The state is concerned that if they say yes to one, if that door is opened, they’ll have 30 more cities right behind us,” Mr. Cooper said, as flurries fell outside his City Hall window. “But anything else is just a stop gap. We’re going to continue to pursue bankruptcy until the door is shut, locked, barricaded, bolted.”

Bankruptcy, increasingly common among corporations and individuals, remains rare for municipalities. Local leaders who want to win elections find it unappealing and often have other choices for solving financial woes. Besides, states have a say in whether a municipality may pursue bankruptcy at all, and they have every reason to avoid such an outcome, not least of all for fear of a creating a ripple effect that could cripple the municipal bond market and drive up the cost of borrowing.

Yet with anemic property tax revenues and forecasts of more dire financial times ahead, some experts and elected leaders fear more localities may have to at least consider bankruptcy. * * *

Only about 600 cities, counties, towns and special taxation districts have filed for bankruptcy (known as Chapter 9 for these sorts of entities) since 1937, said James E. Spiotto, a municipal bankruptcy expert at Chapman & Cutler, a law firm in Chicago, and fewer than 250 in the last three decades. In part, it can be hard — even impossible — to do: about half the states have statutes authorizing such filings, but some of them set limits or require elaborate approval processes. Other states have no specific provision allowing cities to pursue bankruptcy, and at least one, Georgia, bans such moves.

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to Indiana Government

Ind. Decisions - Supreme Court suspends attorney for improper ex parte communication with a judge

In the Matter of Jane G. Cotton is an 8-page, 4-1, per curiam decision. Some quotes:

We find that Respondent, Jane G. Cotton, engaged in attorney misconduct by engaging in an improper ex parte communication with a judge and by engaging in conduct prejudicial to the administration of justice. For this misconduct, we find that Respondent should be suspended from the practice of law in this state for thirty (30) days with automatic reinstatement. * * *

Respondent not only engaged in an improper ex parte communication with a judge, but she also affirmatively misrepresented to him a material fact, telling him that the South Central Way Property address had been inadvertently left out of the original Order for Protection she asked him to revise when in fact Magistrate Clase had crossed out the address and initialed the change to make clear that the alteration was intentionally made by the court. The accuracy of documents utilized by a tribunal in a proceeding is of the utmost importance to the administration of justice, and fraudulent alteration of such documents by an officer of the court is therefore serious misconduct. See Matter of Darling, 685 N.E.2d 1066, 1068 (Ind. 1997). Although Respondent did not fraudulently alter the original Order for Protection, her misrepresentation of a material fact to Judge Clem produced a similar result.

In the fifteen days between receiving the Photocopied Order and her client's use of the order to prevent the husband from retrieving his property, Respondent took no steps to notify the husband or his counsel of the ex parte communication with a judge, to make the Photocopied Order part of the court record, to send the husband or his counsel a copy of it, or to alert them that the original Order for Protection had purportedly been altered to directly contradict the valid order permitting the husband to remove his property from the South Central Way Property. Her conduct subjected the husband to the risk of arrest and caused him an economic injury that will not be fully remedied by Respondent's tender of $1,275 as restitution for attorney fees he incurred.

The only issue the parties dispute is what discipline is appropriate. Although Respondent was motivated by genuine concern for her client at a time of apparent crisis, we conclude that Respondent's disregard for the orderly administration of justice and the rights of opposing parties is serious enough to warrant a brief suspension from the practice of law in this state.

The Court concludes that Respondent violated Indiana Professional Conduct Rule 3.5(b) by engaging in an improper ex parte communication with a judge, and Indiana Professional Conduct Rule 8.4(d) by engaging in conduct prejudicial to the administration of justice.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of thirty (30) days, beginning February 7, 2011. * * *

Shepard, C.J., and Dickson, Rucker, and David, JJ., concur.

Sullivan, J., dissents with separate opinion.

I find Respondent's conduct warrants a more severe sanction than do my colleagues. More egregious to me than the ex parte contact with Judge Clem is the fact that Respondent caused an instrument (the protection order) to be altered in a way with material legal consequences (by inserting the reference to the South Central Way Property which was not in fact covered by the protection order) and then using that instrument to the detriment of another (by preventing client's husband from removing property that he had obtained a court order permitting him to remove, by causing him to be threatened with arrest, and by causing him to incur additional attorney fees).

We have in the past been faced with the same pattern of misconduct – a lawyer fabricating or altering an instrument in a way with material legal consequences and then using that instrument to the detriment of another. In the very recent case of In re Pantzer, No. 49S00-0805-DI-225 (Ind. Nov. 30, 2010), a lawyer fabricated an invoice and submitted it to the court in connection with a discovery dispute. This Court suspended the lawyer for 90 days (without automatic reinstatement). In the case of In re Barratt, 663 N.E.2d 536 (Ind. 1996), a lawyer fabricated a letter offering to compromise a claim for the payment of money and submitted it to disciplinary authorities as evidence of a compromise offer when in fact there had been no such offer. This Court suspended the lawyer for a period of one year. Even in a case where an instrument was altered in a way with material legal consequences but not used to the detriment of another, we suspended the lawyers involved for 90 days. In re Cholis, 484 N.E.2d 963 (Ind. 1985) (lawyers altered a will’s beneficiary designation from the testator's widow to his son – at the widow's request).

Following these precedents, I believe a suspension of the least 90 days is warranted here.

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)

For publication opinions today (2):

In Victor Jones v. State of Indiana , a 12-page opinion, Judge May concludes:

There was sufficient evidence to convict Jones of Class D felony resisting law enforcement, and the State’s act of naming an officer in the charging information was mere surplusage; therefore, we affirm his conviction. We reverse his conviction of Class A misdemeanor criminal recklessness to prevent double jeopardy, and we remand for the trial court to enter a conviction of Class B misdemeanor criminal recklessness and resentence Jones accordingly. We reverse the jury, public defender, and docket fees and remand for further proceedings consistent with this opinion.
In Paternity of M.F., et al.; J.F. v. W.M. , a 17-page, 2-1 opinion, Judge Friedlander writes:
The relevant facts are that in 1996, Mother was cohabiting and in a committed, longterm relationship with a woman we shall refer to henceforth as Life Partner. They wanted a child, so Mother and Father, who was a friend of Mother’s, agreed that he would provide sperm with which to impregnate Mother. After a child (M.F.) was conceived but a few weeks before M.F. was born, the parties signed an agreement (the Donor Agreement) prepared by counsel for Mother in which the parties agreed that Father had donated sperm to Mother and a child was thereby conceived. * * *

Mother and Life Partner’s relationship ended sometime around 2008, when the children were approximately twelve and five years old, respectively. Mother filed for financial assistance in Fayette County. That ultimately led to the IV-D Prosecutor of Fayette County filing, on Mother’s behalf, a Verified Petition for the Establishment of Paternity. The petition was filed on March 9, 2009. Father responded to the petition alleging multiple defenses, all which essentially cited the Donor Agreement as their basis.

DNA testing established that Father was indeed the biological father of both of Mother’s children. A hearing was conducted on November 13, 2009. The discussion centered primarily on the validity of the contract. In a nutshell, at the hearing, Father stressed that the parties had a valid donor contract that precluded a paternity action against Father. Mother’s argument at the hearing focused on her claim that the contract was invalid as against public policy. This argument, in turn, was based upon her contention that this contract runs afoul of the principle that the law will not enforce a contract that divests a child of support from either parent. Although it was arguably relevant to the issues before the trial court, the parties did not address the manner of the older child’s conception.

Following the hearing, the trial court denied the petition to establish paternity as to both children on the aforementioned contract grounds. Essentially, the court held that the contract is valid and does not contravene sound public policy. Therefore, the court held that Mother was prohibited by contract from seeking to establish paternity in Father. Mother appeals that determination. * * *

MORE

NFP civil opinions today (3):

Michael J. Skoczylas v. Peggy C. Skoczylas (NFP)

Term. of Parent-Child Rel. of J.B., et al.; A.M. and D.B. v. IDCS (NFP)

McIntyre Brothers, Inc. v. Kim D. Henderson, Melinda J. Henderson, Sydneyco, LLC, et al. (NFP)

NFP criminal opinions today (12):

The Matter of D.R. v. State of Indiana (NFP)

Joshua Beal v. State of Indiana (NFP)

S.J. v. State of Indiana (NFP)

Miguel Alvarado v. State of Indiana (NFP)

Martel Johnson v. State of Indiana (NFP)

Kenneth E. Lovelace v. State of Indiana (NFP)

Denon Dabney v. State of Indiana (NFP)

Virgil L. Smith v. State of Indiana (NFP)

William Newhouse v. State of Indiana (NFP)

Steve Uribe v. State of Indiana (NFP)

Kenneth McCreary v. State of Indiana (NFP)

James F. Griffith v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts "Notre Dame University President Jenkins breaks silence on Seeberg allegations"

Updating this Dec. 16, 2010 ILB entry, which was headed "Prosecutor won't file sex assault charges against Notre Dame player," the South Bend Tribune published this lengthy story by Margaret Fosmoe on Dec. 26th. A few quotes:

SOUTH BEND — Breaking his silence, the Rev. John I. Jenkins is defending the integrity of the University of Notre Dame's investigation of a sexual battery allegation against a student football player by a female student who later committed suicide.

"I cannot stand by and allow the integrity of Notre Dame to be challenged so publicly. The values at issue go to the very heart of who and what we are at Notre Dame," the university president said last week during an interview in his office.

Notre Dame Security Police conducted a "thorough and judicious investigation that followed the facts where they led and exhibited the integrity that I believe characterizes this institution," Jenkins said. * * *

In an unprecedented move, Jenkins agreed to speak about some aspects of the [Elizabeth] Seeberg investigation, the police delay in interviewing the player, and why he says he can't meet with the grieving parents.

With the criminal inquiry now closed, Jenkins said the player and the player's friend still may face disciplinary action by Notre Dame's office of residence life — the player for his alleged actions of Aug. 31, and the male friend for allegedly sending text messages Sept. 2 to Seeberg, including one saying, "Messing with notre dame football is a bad idea," according to news reports.

The story is accompanied by another, headed "Seeberg case timeline".

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to Indiana Courts

Courts - More on "Reform of New York’s Small-Town Courts Stalls "

The ILB had this post on Jan. 9, 2010. It seems especially relevant now and bears rereading.

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to Courts in general

Law - How is the NY civil committment of sex offenders after prison program working out?

This March 4, 2007 ILB entry began:

"Doubts Rise as States Detain Sex Offenders After Prison" is the headline to the NY Times front-page story today, the first of a three-part series titled "Locked Away." Today's story begins:
The decision by New York to confine sex offenders beyond their prison terms places the state at the forefront of a growing national movement that is popular with politicians and voters. But such programs have almost never met a stated purpose of treating the worst criminals until they no longer pose a threat.
"Can sex offenders be held after serving criminal sentences?" was the heading to this Jan. 13, 2010 ILB entry.

Now the Rochester NY Democrat & Chronicle is running a series on how its civil commitment of sex offenders program is working out for them. From the sidebar today:

About this series

Sunday: State’s civil commitment program facing space and budgetary constraints.
Today: The legal terrain.
Tuesday: The parole program.
Wednesday: The treatment, and the cost of expert advice.

About civil commitment

New York’s civil commitment of sex offenders is a civil — not criminal — process. This means attorneys for the accused can ask that files be sealed and courtrooms closed for confidentiality reasons, just as happens in numerous civil cases in which the mental stability of an individual is at question.

For this investigation, the Democrat and Chronicle secured hundreds of pages of civil commitment court documents before they were sealed, and also filed Freedom of Information requests with state agencies to obtain other reports from unresolved cases. The newspaper has reviewed nearly four dozen civil commitment cases.

Also, the Democrat and Chronicle has conducted multiple interviews with experts and officials and used reports and records from agencies across the country and New York, including the state’s Office of Mental Health, Attorney General’s Office, Office of Court Administration, Mental Hygiene Legal Services, the Division of Parole, and the Division of Criminal Justice Services.

Findings

-- A number of the earliest confined offenders consented to commitment, raising questions about their legal representation.
-- A dearth of state Court of Appeals rulings makes the legal terrain for civil commitment murky.
-- A Court of Appeals ruling about rapist Mustafa Rashid will make confinement for offenders unlikely in similar cases.

Files Downloads - a number of reports are available.

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to General Law Related

Courts - "The Robe Seems To Suit New Justice Kagan"

From NPR's Morning Edition this morning, Nina Totenberg's very interesting 7 min 32 sec feature on the new justice.

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to Courts in general

Courts - "Longtime judge takes on Cook County juvenile court system"

Chicago WGN posted this interesting report Dec. 24th. Some quotes:

A veteran judge who helped revamp how death penalty cases are handled in Illinois and most recently served on the state appellate bench has been named presiding judge over the Cook County Juvenile Justice Division, one of the largest juvenile court systems in the nation.

Circuit Judge Michael Toomin, 72, has spent the last three decades on the bench, most of that time at the Criminal Courts Building, where he presided over more than 630 bench and jury murder trials.

"To be quite frank, the prospect of retiring left me cold," he said in his office overlooking the West Side at the sprawling courts complex. Post-it notes were arranged on bare white walls where workmen would soon hang framed photos and paintings.

Widely regarded as one of the most experienced and capable jurists in Cook County, Toomin recently resigned as chairman of the Illinois Supreme Court's special committee on capital cases after serving on the panel for a decade. The committee, formed in the wake of then-Gov. George Ryan's moratorium on state executions, implemented new rules for capital punishment trials and created routine training programs and qualification standards for judges and attorneys handing death penalty cases.

He had been appointed to the appellate court in 2008, but his term was due to expire. Toomin said he did not want to run for a more permanent position on the appellate court but realized he was not ready to pack away his robe and gavel.

"I think I share with (Chief Judge Timothy) Evans the feeling that this (juvenile) court is one of the jewels of the circuit court because so much is at stake," he said. "I think we recognize that these young kids have potential and they can be saved and become productive citizens." * * *

Toomin succeeds Curtis Heaston, 82, who served as a presiding judge of the juvenile court for more than a decade. He will remain in a supervisory role until his retirement in 2011, Evans said.

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to Courts in general

Ind. Courts - "Law remains Stan Levco's love: Outgoing prosecutor reflects on his tenure"

A very long story Dec. 25th in the Evansville Courier & Press, reported by Mark Wilson, on the career of outgoing Vanderburgh County Prosecutor Stan Levco.

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to Indiana Courts

Ind. Courts - "Drug court coming to end in Tippecanoe County"

A long story Dec. 25th in the Lafayette Journal Courier, reported by Sophia Voravong, began:

Tippecanoe County's Adult Drug Court will meet Tuesday for the last time.

The program, which was created eight years ago to help nonviolent criminal offenders overcome drug addiction through intensive supervision, is ending because of a lack of participants and -- consequently -- grant funding.

For nonviolent drug offenders, that leaves forensic diversion as Tippecanoe County's only alternative placement program to incarceration. Forensic diversion participants must suffer from substance abuse and mental illness.

Still, court officials are optimistic that losing drug court won't have negative consequences because of overlap with forensic diversion.

Lisa Smith, coordinator of Tippecanoe County's drug court, said about 85 percent of past drug court clients had some type of underlying mental illness.

"We're just trying to give all the support we can now to forensic diversion," Smith said this week. "A lot of what we were finding is that, with so many of the participants, there was a thin line of them qualifying for one program versus the other."

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to Indiana Courts

Court - Outrage from some continues in Iowa

This Dec. 24th story from Jennifer Jacobs of the DesMoines Register gives the picture:

Impeachment isn't the best route for getting rid of the four remaining Iowa Supreme Court justices who authored the gay marriage ruling - it's better that they resign, a conservative leader [Bob Vander Plaats, a GOP former candidate for governor] said Thursday. * * *

Vander Plaats said the Condition of the Judiciary, the annual speech to the Iowa Legislature, is the perfect opportunity for the justices to announce they're stepping down. If they had been on the ballot for retention Nov. 2, they would have been voted off the bench, he said. * * *

Three representatives are drafting legislation to impeach the four justices.

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to Courts in general

Ind. Gov't. - "Lake officials still split over insuring sheriff's lawyer "

From the Dec. 24th NWI Times, this story by Bill Dolan that began:

CROWN POINT | The Lake County Council couldn't hammer out a compromise Thursday that gives a Merrillville lawyer health care coverage at public expense in the wake of public criticism over a proposed deal.

Council members voted to postpone until next month the request of John Bushemi, legal counselor to Sheriff-elect John Buncich, to receive not only a $115,000 contract but also access to the county government's family health care coverage.

The County Council can take up the issue again Jan. 12, when its three newly elected members are seated.

Council members still were split on whether granting insurance, which costs the public about $14,500 per employee annually, sets an expensive precedent since the county cannot afford to extend coverage to the scores of other consultants the county employs.

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to Indiana Government

Catch-up: What did you miss over the long weekend from the ILB?

Here is the answer to "What did you miss over the l-o-n-g weekend from the ILB?

But first, for the New Year, Please think about becoming an ILB supporter!

From Sunday, December 26, 2010:

From Saturday, December 25, 2010: From Friday, December 24, 2010: From Thursday, December 23, 2010: From late Wednesday afternoon, December 22, 2010:

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/27/10):

Next week's oral arguments before the Supreme Court (week of 1/3/11):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 12/27/10):

Next week's oral arguments before the Court of Appeals (week of 1/3/11):

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, December 27, 2010
Posted to Upcoming Oral Arguments

Sunday, December 26, 2010

Ind. Decisions - More on: Supreme Court reverses guilty but mentally ill decision

Updating this Dec. 22, 2010 ILB entry on the Court's decision that day in Gregory L. Galloway v. State of Indiana, Charles Wilson of the AP had this report on Dec. 23rd - some quotes:

The Indiana Supreme Court has determined that a judge wrongly considered the condition of the state's mental health system in rejecting an insanity defense for a man convicted of stabbing his grandmother to death in front of family members.

In a 3-2 decision Wednesday, the justices said it was inappropriate for the judge to consider whether Gregory Galloway may have eventually been released if he was sent to a mental health facility.

Instead, he was found guilty but mentally ill and was sentenced to 50 years in prison. If he had been found insane, Galloway would have been sent to a mental hospital instead of prison.

"It is not for the judicial branch to decide that a legally insane defendant should be convicted and sentenced to prison because of the condition of the state's mental health system," Justice Frank Sullivan wrote in the 23-page ruling. "While we sympathize with the difficulty of the trial court's decision, we cannot sustain it." * * *

"This case is as much a trial of our mental health system as it is of a man," Henry Circuit Judge Mary G. Willis said at Galloway's sentencing hearing in May 2009. She said the record was clear that Galloway posed a danger when he was not taking his medication, which he failed to do when he was not in an institutionalized setting.

"One of my options is not to say that he's committed for the rest of his life in a mental health institution. That would have been easy, but that's not one of my choices," Willis said.

Chief Justice Randall Shepard and Justice Brent Dickson dissented from the decision, saying that Galloway had behaved ordinarily all day before the killing and had immediately regretted the murder. They said when Galloway is released from a mental hospital again, he will likely pose a threat to the public.

Here is a Dec. 24th story in the Muncie Star-Press, reported by Douglas Walker. Some quotes:
The majority decision, written by Justice Frank Sullivan, said Willis was "not unreasonable" in finding Galloway's history of mental illness and "track record of mentally deteriorating after stopping his medication" made it likely he would be " a danger to himself and to others in the community if treated and released."

However, while "such considerations may be relevant and appropriate during a commitment proceeding, they are not relevant or appropriate in determining whether the defendant was legally insane at the time of the offense."

Contacted Thursday, Henry County Prosecutor Kit Crane said Galloway, now being held in the Wabash Valley Correctional Facility south of Terre Haute, would not be released until 30 days after the court's action.

In the meantime, Crane said, he intends to ask the Indiana attorney general to petition the court to reconsider its decision. Part of that request would be based on new Justice Steven David, who supported overturning the conviction, not having been on the court when oral arguments in the case were made, the prosecutor said.

Should the Supreme Court's decision stand, Crane said he would file a petition to have Galloway committed to a state mental hospital. If granted, such a commitment would be for an "indeterminate" amount of time, Crane said.

ILB comments:

First, with regard to the above re commitment, see footnote 9, on pp. 9-10 of the opinion. It begins:

The results of an NRI verdict and of a GBMI verdict are different. When an NRI verdict is rendered, the prosecutor is required to initiate a civil commitment proceeding under either section 12-26-6-2(a)(3) (temporary commitment) or section 12-26-7 (regular commitment) of the Indiana Code. See I.C. § 35-36-2-4. The defendant remains in custody pending the completion of the commitment proceeding. Id. The trial court may order the defendant committed if it finds by clear and convincing evidence that the defendant is currently mentally ill and either dangerous or gravely disabled.
Here is how the majority opinion concludes, beginning on p. 21:
The Indiana General Assembly has chosen to return to our common law roots and hold criminally responsible only those defendants who are morally responsible for their actions. Judges must apply that law and find not responsible by reason of insanity those defendants who establish each component of the insanity defense by a preponderance of the evidence. It is not for the judicial branch to decide that a legally insane defendant should be convicted and sentenced to prison because of the condition of the State's mental health system.

The trial court erred in this case by entering a verdict of guilty but mentally ill when the evidence presented reasonably led only to a conclusion that the defendant was legally insane at the time of the offense. Underlying the trial court's decision was not a concern of malingering or feigning but a concern about the State's mental health system and the defendant's need for structure and constant supervision. Among the trial court's findings is that the defendant “lacks in-sight into the need for his prescribed medication” and “is in need of long term stabilizing treatment in a secure facility.” The trial court also found that the defendant “repeatedly discontinued medication” and there was “no evidence that this pattern of conduct will not continue if [the defendant] is hospitalized and released, posing a danger to himself and others in the community.”

Though made after the verdict, the trial court's statements at sentencing cast light on the rationale underlying the verdict. The trial court confessed at sentencing that it viewed “[t]his case . . . as much a trial of our mental health system as . . . of a man.” The court lamented that it could not simply commit the defendant to a mental health institution for the rest of his life – the “easy” decision. What made the court's decision so difficult was that it could not “in good conscience allow someone with . . . severe mental illness to return to the community.”

To be sure, the trial court was not unreasonable in finding that the defendant's history of mental illness, his lack of insight into the need for medication, and his track record of mentally deteriorating after stopping his medication creates a high probability that the defendant will be a danger to himself and to others in the community if treated and released. Although such considerations may be relevant and appropriate during a commitment proceeding, they are not relevant or appropriate in determining whether the defendant was legally insane at the time of the offense. Thus, while we sympathize with the difficulty of the trial court's decision, we cannot sustain it.

We reverse the judgment of the trial court.

Rucker and David, JJ., concur.

Shepard, C.J., dissents with separate opinion in which Dickson, J., joins. [some quotes] It seems straightforward enough that Dr. Davidson's testimony and the defendant's own demeanor at the time of the offense support Judge Willis's judgment. Thus, the appellate standard for reversal has not been met. Thompson v. State, 804 N.E.2d 1106, 1149 (Ind. 2004) (“evidence is without conflict and leads only to the conclusion the defendant was insane.”) * * *

[S]ome innocent future victim is placed at risk by this Court's decision to second-guess Judge Willis. A society that responds to such violence with tolerance should well expect that it will experience more violence than it would if it finally said, “This is unacceptable.” Not knowing what I would say to the next victim, I choose to stand with Judge Willis and affirm the judgment of guilty but mentally ill.

The decision should be read in full, the majority opinion surveys the insanity defense and its history. When reading the opinion, pay particular note to the way Dr. Davidson's testimony is considered in the majority and dissenting opinions. From the majority, at p. 13:
The expert testimony in this case did not conflict. Although Dr. Davidson submitted a preliminary report opining that the defendant was sane at the time of the murder, he recanted that opinion under cross-examination in light of learning critical facts. The State contends that Dr. Davidson's equivocation illustrates that the expert testimony was in conflict. We disagree. * * *

Where there is no conflict among the expert opinions that the defendant was insane at the time of the offense, there must be other evidence of probative value from which a conflicting inference of sanity can be drawn. See Thompson, 804 N.E.2d at 1152 (Sullivan, J., concurring). Such probative evidence is usually in the form of lay opinion testimony that conflicts with the experts or demeanor evidence that, when considered in light of the other evidence, permits a reasonable inference of sanity to be drawn. * * *

In this case, there was not sufficient evidence of probative value from which an inference of sanity could be drawn sufficient to create a conflict with the (nonconflicting) expert testimony that the defendant was insane at the time of the offense. * * *

Second, there was not sufficient demeanor evidence of probative value from which an inference of sanity could be drawn.

From the dissent:
This was one of those cases where the defense argued that the perpetrator was sane right before the crime and sane right after the crime, but insane for the sixty seconds or so it took to commit it. Dr. Davidson's basic view was that it was unlikely that Galloway qualified as insane on the basis of a “very thin slice of disorganized thinking.” (Tr. at 228.)

Defense counsel's vigorous cross-examination confronted Dr. Davidson with a host of hypotheticals (“now what if I told you”) and asked as to each new proposed fact whether it would affect his diagnosis. It was twenty to thirty pages of the sort of energetic cross-examination tactics to which we lawyers are inured but which often befuddle the uninitiated. It finally left the witness saying, in the face of this onslaught, that he was unsure. * * *

It seems straightforward enough that Dr. Davidson's testimony and the defendant's own demeanor at the time of the offense support Judge Willis's judgment. Thus, the appellate standard for reversal has not been met. Thompson v. State, 804 N.E.2d 1106, 1149 (Ind. 2004) (“evidence is without conflict and leads only to the conclusion the defendant was insane.”)

Posted by Marcia Oddi on Sunday, December 26, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "Clarksville may scrap its town court"

Updating this ILB entry from Dec. 23rd, Matt Thacker of the New Albany News & Tribune reports today:

CLARKSVILLE — Clarksville Town Council has scheduled two special meetings this week to discuss the possibility of eliminating the town’s court.

Council President Greg Isgrigg said it will be a forum for the community to ask questions and voice concerns. Isgrigg said the data would be presented to the council since the topic has not been discussed at prior meetings.

The meetings come less than a month after Judge Sam Gwin announced he would retire at the end of the year to “pursue things outside the legal field.” If the council decides to keep the court, a caucus will be held to decide who will take the bench in 2011.

Since the four-year term expires in 2012, the seat would be up for re-election again next year.

“You’d have to do away with it this year,” Isgrigg said of the court. “You can’t do away with it in an election year.”

Isgrigg said Clerk-Treasurer Gary Hall provided the town with information showing it could save money by eliminating the court. Hall said he was asked to provide information regarding the financial condition of the court.

“The court is not self-sustaining, far from it,” Hall said. “I did not suggest [the town council] do away with the court. I just gave them information so they can make any decision they want to make.”

Total expenditures for the court in 2010, not including the last payroll, was $327,556. He said the court lost a projected $165,487 last year and $226,206 the year before.

He said fees paid by people on probation pay for part of the costs, but the town also pay a portion. The town court handles misdemeanor and traffic cases and ordinance violations.

Sellersburg and Charlestown are planning to abolish their courts after 2011. Charlestown Mayor Bob Hall said the court could be retained if revenues increased substantially next year. According to numbers presented at Charlestown City Council meeting, the city court lost between $40,000 and $45,000 in 2010.

Jeffersonville City Court Judge Ken Pierce spoke at the Charlestown City Council meeting in favor of keeping the city courts, arguing local courts provide an opportunity for community outreach. The Jeffersonville City Council considered abolishing its city court but ultimately decided to keep it. * * *

Even if the council decides to keep the town court, it may eventually be abolished by the state. The Indiana Judicial Conference released a report last year calling for drastic changes in the state’s judicial system, including eliminating all municipal courts.

“There are rumblings that the State of Indiana is going to do away with the [city and town] courts, so that’s going to be an issue,” Clarksville Councilman David Fisher said. “What we need to do is prepare for the future.”

A new requirement recently added by the Indiana Supreme Court is that all judges must be attorneys.

Gwin is an attorney, but some city and town judges across the state are not, and Isgrigg said that could limit their search.

ILB comment: Re the next to the last paragraph above, that all judges must be attorneys, IC 33-35-5-7 provides:
Sec. 7. (a) A city court is not a court of record.
(b) A town court is not a court of record.
(c) A person selected as judge of the following courts must be an attorney in good standing under the requirements of the supreme court:
(1) Anderson city court.
(2) Avon town court.
(3) Brownsburg town court.
(4) Carmel city court.
(5) A city or town court located in Lake County.
(6) Muncie city court.
(7) Noblesville city court.
(8) Plainfield town court.
(9) Greenwood city court.
(10) Martinsville city court.
As added by P.L.98-2004, SEC.14.

Posted by Marcia Oddi on Sunday, December 26, 2010
Posted to Indiana Courts

Saturday, December 25, 2010

Ind. Decisions - More on Tax Court opinion in puppy mill tax case

This Dec. 22, 2010 ILB entry involved a Tax Court decision, Judge Fisher's most recent and probably last opinion, relating to an investigation by the IDOR and the Attorney General of "Virginia and Kristin Garwood' business activities to determine whether they were conducting sales of puppies and not remitting the Indiana sales and income tax due on the sales." The result was the issuance of jeopardy tax assessments and an immediate forced sale of assets to pay the taxes. The question in the case involved procedural issues and the jurisdiction of the Tax Court. The Tax Court last week denied the State's motion to dismiss.

Here is the ILB entry from the time of the raid, in early June 2009.

There have been several similar puppy mills raids based on suspected tax evasion by the property owners since the Garwoods, the most recent being in Bloomfield on Dec. 1, 2010. Here is a long story from WTHI at that time. Some quotes from the lengthy story:

BLOOMFIELD, Ind. (WTHI) - More than 120 puppies and dogs were seized Wednesday from a commercial dog breeder in Bloomfield, Ind., after the Indiana Attorney General’s Office filed a jeopardy tax assessment in Greene County court. * * *

By law, a jeopardy tax assessment filed in court is immediately considered a civil judgment against the delinquent taxpayer; and if the taxes cannot be paid immediately, then the state has the legal authority to seize the inventory of the business to satisfy the civil judgment.

In the case of Clark’s business Love My Pets , located at 10203 East Dobson Road in rural Bloomfield, the business’ inventory consisted of approximately 120 puppies and dogs.

On Wednesday, the Attorney General’s Office served Clark with the jeopardy assessment after it was filed in court. Then volunteers from several animal-rescue groups began the process of removing the puppies and dogs from their enclosures in a building on the property. * * *

This is the third time in the past two years that the Indiana Attorney General’s Office has taken legal action against commercial dog breeding operations for tax evasion offenses.

  • In December 2008, under former Attorney General Steve Carter, 74 dogs and puppies were seized from a dog breeding business owned and operated by Tammy Gilchrist in Cloverdale, Ind. Gilchrist and two accomplices later pleaded guilty to failure to collect or remit sales taxes and were sentenced to probation.
  • In June 2009, under current Attorney General Zoeller, 244 dogs and puppies were seized from a dog-breeding business operated by Virginia Garwood and Kristin Garwood in Mauckport, Ind. Both Garwoods later pleaded guilty to failure to collect or remit sales taxes and also were sentenced to probation.
Although the Attorney General’s Office normally does not have legal jurisdiction to file criminal charges, sales tax and income tax evasion are the exceptions, and the Attorney General can file such charges directly. In today’s tax enforcement action in Greene County, however, Clark has not been charged with any crime while the investigation continues into the delinquent taxes.

The filing of the jeopardy assessment in civil court triggers a legal process where the Attorney General, representing the Department of Revenue, seeks to collect the delinquent taxes. Clark, like any delinquent taxpayer, has the legal right to challenge the state’s action in civil court.

Today the Logansport Pharos Tribune has a story by Maureen Hayden of the CNHI Statehouse Bureau, headed "AG pledges to keep eye on breeders: State using tax laws to target puppy mills." Some quotes:
[A]n innovative use of a tax law has put the state in the forefront of a fight to crack down on inhumane dog-breeding operations known as “puppy mills.”

The approach has been likened to the tax-evasion case that brought down Chicago crime boss Al Capone in the 1930s. It’s also won accolades from animal lovers who contend Indiana’s animal protection laws are weak.

“These operations are inhumane and awful and need to be shut down,” said Indiana State Rep. Linda Lawson, a Democrat from Hammond who has taken the lead on toughening Indiana’s animal cruelty laws.

She describes the approach taken by the Republican Zoeller’s tax chief as “genius.”

The tax chief to whom she refers is Andrew Swain, now head of the attorney general’s revenue division.

When working for Zoeller’s predecessor, Swain came up with the idea of using the state’s tax evasion laws to shut down unlicensed, commercial dog-breeding operations that put profits before animal welfare. What he’d discovered was that the suspected puppy mill operators dealt in cash-and-carry transactions on which they they failed to pay income and sales taxes.

When Zoeller took office last year, he approved the continued use of the law.

The squalid conditions of puppy mills concerned him, he said. But the motivation was going after tax cheats.

“They’re scam artists,” Zoeller said.

The latest puppy mill crackdown occurred in early December, when Zoeller’s office shut down an unlicensed, commercial dog-breeding operation in Bloomfield.

After filing what’s called a “jeopardy tax assessment” in state court, claiming the Bloomfield breeder owes more than $311,000 in delinquent sales and income taxes, Zoeller’s office seized the breeders’ taxable assets: 120 puppies and dogs.

Two similar cases filed in the last two years, charging breeders with failing to pay hundreds of thousands of dollars in back taxes, resulted in guilty pleas to various tax charges and the seizure of more than 300 dogs.

The Humane Society has worked with Zoeller’s office to place the dogs for adoption.

Posted by Marcia Oddi on Saturday, December 25, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Courts - At least one Indiana county will end courthouse weddings

Tom Coyne of the AP reported this news on Christmas Day. Some quotes:

[After describing a wedding in a small room off the Grant County Court Clerk's office, the story continues ...] In a county where November's unemployment rate stood at 10.4 percent, above the state's 9.8 percent rate, more than half the weddings for which marriage licenses were issued this year took place in the small space that doubles as a storage and break room.

That practice will end Jan. 1. In another sign of budget-battered communities' determination to trim expenses, Court Clerk J. Mark Florence announced this month he would no longer allow his staff to perform the ceremonies because of personnel cuts and a courthouse renovation project that has put the squeeze on space.

Jennifer Daniels, whose 19-year-old son, Andrew, got married at the courthouse recently, can't believe the ceremonies are being discontinued.

“Some people can't afford any other sort of weddings. They can't afford for a church to marry them or anything like that,” said Daniels, who also got married at the courthouse.

After several years of bad economic conditions and tight budgets, some counties are running out of expenses to cut. Like many others nationwide, Grant County has already trimmed an assortment of services. This year, Florence decided the office weddings had to go.

“This is the pitfall of doing more with less,” he said.

Florence said his staff has shrunk, and he worries more cuts could be coming. His employees will continue to issue marriage licenses — about 460 have been issued in 2010, with 250 of those weddings held at the courthouse — but don't have the time for the ceremonies, which take about four minutes each, because of other duties, including child support collection and bookkeeping.

He said couples will still have plenty of options.

Other counties still perform the ceremonies. “In this county, there are 200 churches, 420 ministers, 10 town clerk or city clerk-treasurers, eight judicial offers and three mayors. All of them have the opportunities to perform marriages,” he said.

But most of those will cost more than a courthouse wedding. Couples pay $18 for a marriage license, but there is no fee for the ceremony.

Posted by Marcia Oddi on Saturday, December 25, 2010
Posted to Indiana Courts

Ind. Courts - A focus on the courts of Franklin and Ripley counties

Debbie Blank of the Batesville Herald-Tribune has a story today, Dec. 25th, that makes very good use of recent court information. She writes:

The 2009 Indiana Judicial Service Report provides a wealth of information about the inner workings of area courts – and a snapshot of how people get in trouble in Franklin and Ripley counties.

Despite the saying “The wheels of justice move slowly,” judges, prosecutors and their staffs in both counties lessened the number of cases waiting for decisions last year. Franklin County listed 5,145 cases pending Jan. 1, 2009. By Dec. 31, 2009, that number had declined to 3,835. Likewise, Ripley County showed 2,540 cases pending Jan. 1, 2009. By Dec. 31, 2009, 2,341 cases were in the system.

There were seven jury trials in two Franklin County courtrooms in 2009, including three for different levels of felonies: A (examples are kidnapping, voluntary manslaughter or arson), B (aggravated battery, rape, child molesting and armed robbery are examples) and C (involuntary manslaughter, robbery, burglary and reckless homicide). Two trials decided criminal misdemeanors and two determined civil matters.

The lone Ripley County jury trial last year was a Class D felony case (such as theft and fraud) in Superior Court.

Judges presided over 101 bench trials in Franklin County last year. A bench trial is one in which at least one witness is sworn.

Eighty-nine decisions were made by Steven Cox, Circuit Court Division 1 judge: 38, domestic relations; 20, civil plenary (not mortgage foreclosures or outstanding debts); nine, civil collections; six, civil miscellaneous; five, juvenile paternity; four, adoptions; two, small claims, one each, Class D felony, criminal misdemeanor (such as trespass, check deception and battery), infraction, juvenile delinquency and termination of parental rights.

Clay Kellerman, Circuit Court Division 2 judge, decided 12 trials: six, domestic relations; five, criminal misdemeanors; and one, infraction.

Ripley Circuit Court Judge Carl Taul determined the outcomes of 116 trials: 71, domestic relations; 17, juvenile child in need of services; 14, miscellaneous criminal; five, civil collections; four, postconviction relief petitions; three, terminations of parental rights; and two, mortgage foreclosures.

Ripley Superior Court Judge James Morris completed 73 bench trials: 40, small claims; 20, protective orders; five, mortgage foreclosures; four each, civil collections and civil miscellaneous.

Many more cases were disposed by final judicial determination with no witnesses sworn and no evidence introduced. Cox made 1,050 such decisions, with domestic relations the highest category at 399. Kellerman’s bench disposition total was 241, with one-third of those protective orders.

In Franklin County, 2,680 defendants pleaded guilty, the vast majority for infractions. Taul determined the outcomes of 480 of these cases, 152 involving domestic problems. Morris’ bench disposition total was 126, with exactly half small claims cases. The report shows 501 Ripley County defendants pleaded guilty, 54 percent for criminal misdemeanors.

Hundreds of cases were dismissed last year, either by the court, upon the motion of a party or a settlement agreement. Cox oversaw 550 dismissals, with 180 involving civil collections. Kellerman dismissed 211 cases, including 41 protective orders, 40 criminal misdemeanors and 39 infractions. At the Versailles courthouse, Taul dismissed 264 cases, 36 percent of which involved civil collections. Morris dismissed 510 with 43 percent of those small claims problems.

When a defendant fails to comply with trial rules in civil cases, a judgment of default is entered by the court. This happened 354 times in Franklin County and 512 times in Ripley County.

If a prosecutor and defendant agree to defer prosecution or for the defendant to enter a diversion program, the case is disposed in the deferred/diverted category. The total in Franklin County was 230 and in Ripley County 215, mostly for criminal misdemeanors.

At the Brookville courthouse, 404 defendants failed to appear or failed to pay in infraction cases that are typically traffic related. None were reported in Ripley County.

Some cases are closed for a variety of reasons – estate, adoption, trust termination, guardianship, if a defendant filed bankruptcy or the case is removed to federal court. In 2009, this happened 149 times in Franklin County and 86 times in Ripley County.

The ILB did see what looks to be an error in the story. In the next to last paragraph, the story reports that 404 defendants failed to appear/pay in infraction cases in Brookville (Franklin County), while "none were reported in Ripley County." However, a look at the statistics shows that in Franklin County these infractions are handled in Circuit Court 2, a court of record. In Ripley County, as also shown in the report, the Batesville City Court and Versailles Town Court handle infractions and a total of 435 failed to appear/pay in infraction cases in that county.

Posted by Marcia Oddi on Saturday, December 25, 2010
Posted to Indiana Courts

Friday, December 24, 2010

Ind. Decisions - 7th Circuit issued one Indiana ruling yesterday; and an opinion of general interest re federal preemption and common law claims

In U.S. v. Dortch (ND Ind. Lozano), an 8-page opinion, Judge Manion writes:

Kevin Dortch robbed a bank in Munster, Indiana, and then led police on two highspeed chases through the nearby residential neighborhoods. He eventually pleaded guilty and was sentenced to the statutory maximum of 240 months’ imprisonment. He appeals only his sentence. We affirm.
In Bausch v. Stryker Corp. (ND Ill), a 33-page opinion, Judge Hamilton writes:
This diversity jurisdiction case presents issues concerning federal preemption and sufficient pleading of a plaintiff’s claim that she has been injured by a medical device—a hip replacement— allegedly manufactured in violation of federal law. Plaintiff Margaret J. Bausch appeals the district court’s dismissal of her case against defendants Stryker Corporation, HOC, and Stryker Ireland, Ltd. (collectively “Stryker”), who have manufactured, distributed, and sold the Trident-brand ceramic-on-ceramic hip replacement system (“the Trident”) in the United States since 2003. The Trident is a Class III medical device under federal law, the class of devices that are most critical to human health and subject to the most extensive federal regulation.

Bausch alleged that the defendants violated federal law in manufacturing the Trident. The device was implanted in her body six days after the United States Food and Drug Administration informed the defendants that a component of the Trident hip system was “adulterated” and that the companies’ manufacturing processes failed to comply with federal standards. The Trident implanted in Bausch failed, requiring surgical removal and replacement of the product and leading to a host of serious and painful medical problems. The defendants later recalled a component of the Trident bearing the same catalogue number as the one that had been implanted in Bausch’s body. Bausch brought this suit under Illinois common law for negligence and strict liability for a defective product.

The district court granted defendants’ motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, holding that Bausch’s common law claims were preempted by federal law. In an unusual step, the district court did not allow plaintiff a requested opportunity to amend her complaint, but immediately entered final judgment dismissing the action with prejudice. The district court then denied Bausch’s motion to vacate the judgment and for leave to file an amended complaint.

We conclude that the district court erred. Bausch’s claims that she was injured by defendants’ alleged violations of federal law are not preempted. Her original complaint should not have been dismissed. Even if the original complaint had been defective, the district court abused its discretion by dismissing the action with prejudice and denying Bausch leave to file an amended complaint. We address first the preemption issue and then the pleading issues. * * *

For the foregoing reasons, we REVERSE the judgment of the district court dismissing Bausch’s suit and denying her the opportunity to file an amended complaint, and we REMAND for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Friday, December 24, 2010
Posted to Ind. (7th Cir.) Decisions

Thursday, December 23, 2010

Ind. Courts - "Clarksville may scrap its town court"; ILB observation

Following up on this Dec. 22, 2010 ILB entry, Ben Zion Hershberg reports in today's Louisville Courier Journal:

The Clarksville Town Council has scheduled special meetings on Monday and Tuesday to consider—and possibly vote on—eliminating the Town Court.

“It has to be done this year,” said Greg Isgrigg, president of the council. “If not, it will stay another four years.”

That’s because a new judge is to be chosen in next year’s municipal elections. Once that happens, Isgrigg said, the court would have to keep operating through the judge’s four-year term.

If the court is eliminated, its cases would be handled in county courts.

Council member Bob Popp said he’s bothered that the move to save money is coming up so suddenly and with little time to consider it.

“We’ve never had a meeting or a work session” on it, said Popp. He said he believes the potential savings – he recalled Isgrigg estimating about $124,000 -- could be made in other ways.

The town court annually handles about 1,600 misdemeanor and traffic cases that would take much longer to work their way through county courts where caseloads are much larger, Popp said.

A report last year by the Indiana Judicial Conference on long-term plans for the court system recommended eliminating municipal courts, appointing rather than electing circuit and superior judges, and using state funds to support the courts uniformly rather than relying on widely varying county revenue.

The Town of Sellersburg and the City of Charlestown voted this year to eliminate their municipal courts at the end of next year. The Jeffersonville City Council considered eliminating its court but decided to keep it.

“We decided it was serving a valuable purpose and didn’t see the need to eliminate the court,” said Jeffersonville City Council President Nathan Samuel.

While the Jeffersonville court isn’t fully self-supporting, Samuel said, it covers a significant share of its expenses from citation revenue and other fees. It also contributes to maintaining the courtroom that also serves as the City Council meeting room and operates important educational and other outreach programs, he said.

ILB observation: This story, plus the earlier story today about the canceled plans for a Fort Wayne city court, helps fill out the picture of the financial pros and cons of city and town courts.

Posted by Marcia Oddi on Thursday, December 23, 2010
Posted to Indiana Courts

Ind. Courts - Fort Wayne officials decide not to pursue city court

Updating a now long list of stories, the most recent from yesterday, Benjamin Lanka of the Fort Wayne Jounral Gazette reports today. Here are some quotes from the story, emphasis added by the ILB:

Just two weeks after proposing it, Mayor Tom Henry’s administration is scrapping its request to create a city court.

Deputy Mayor Beth Malloy on Wednesday said the process of introducing an ordinance has led to an increased interest by city and county officials to discuss how to better handle city ordinance violations.

“It got us all to sit down and see what we could do,” she said.

Malloy and Mike McAlexander, chief deputy prosecutor for the county, announced they would conduct meetings next year to discuss how to make the processes better. * * *

To create a city court in 2012, the bill had to be approved this year so a city court judge could be elected during 2011.

The proposal received immediate opposition from Allen County Prosecutor Karen Richards and Allen County Superior Court Judge Fran Gull. In an e-mail last week, Richards told the council her office would not support a city court, which she said would limit the type of cases to be heard there.

Richards said she does support some cases at New Haven city court because of the proximity for some officers. A Fort Wayne court would be only a few blocks from the county courts. * * *

In proposing the bill, Malloy and others touted the ability of the New Haven court to generate $2 million this year, compared with far less revenue generated by traffic tickets in Fort Wayne.

That number, however, doesn’t show the reality of those revenues, according to New Haven Judge Geoff Robison.

While New Haven’s city court expects to collect gross revenues of $2 million, Robison said the majority of that money is sent to the state.

“This is not a casino,” he said. “It’s not intended to be a money machine. It’s a service.”

Malloy previously said the desire to generate revenue was the main impetus for starting a court in Fort Wayne.

Through October, Robison said his court generated $253,000 for the city’s general fund.

His annual expense budget is $173,500, meaning the court does generate some extra revenue for the city.

Posted by Marcia Oddi on Thursday, December 23, 2010
Posted to Indiana Courts

Wednesday, December 22, 2010

Ind. Decisions - Supreme Court reverses guilty but mentally ill decision

In its January 26, 2010 opinion in Gregory Galloway v. State of Indiana, the COA concluded:

Appellant-defendant Gregory L. Galloway appeals his conviction for Murder, a felony. Galloway argues that he should have been acquitted based on his defense of insanity and that the trial court erred by finding him guilty but mentally ill. Finding that we are compelled by our Supreme Court's opinion in Thompson v. State, 804 N.E.2d 1146 (Ind. 2004), to affirm, we do so.
In an opinion filed this afternoon, the Supreme Court, by a 3-2 vote, reversed the decision of the trial court.

In Gregory L. Galloway v. State of Indiana, a 27-page, 3-2 opinion, Justice Sullivan writes for the majority:

Despite nonconflicting expert and lay opinion testimony that defendant Gregory Galloway was insane, the trial court rejected the insanity defense after concluding that the defendant could continue to be a danger to society because of an inadequate State mental health system. This was insufficient to sustain the trial court's finding because there was no probative evidence from which an inference of sanity could be drawn.
For more, see this entry from Dec. 26, 2010.

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Martha Wentworth named new Tax Court judge [Updated]

Apparently the Governor issued a news release, but the ILB has not received it, and the announcement is not yet posted on the Governor's news release page.

Here is the Sept. 20, 2010 ILB entry detailing the 7 semi-finalists.

Here is the Nov. 5, 2010 letter from the Chief Justice to the Governor, detailing the three finalists' qualifications.

Congratulations to the new Indiana Tax Court Judge, Martha Wentworth!

[Updated at 4:41 PM] Just received, the press release:

INDIANAPOLIS (December 22, 2010) – Governor Mitch Daniels today announced he has selected Martha B. Wentworth as the next Indiana Tax Court judge. Wentworth will replace Judge Thomas G. Fisher, who will retire from the court on January 1.

“Martha has a decades deep knowledge of tax law and a strong reputation for fairness and consistency. I know she will fit the Tax Court role superbly,” said Daniels.

Wentworth has an extensive background in tax law. She clerked for Judge Fisher, Indiana’s first tax court judge, from 1990-92 before entering private practice. Since 1998, she has been with Deloitte Tax LLP, serving as a senior tax manager, level 1 firm tax director and level 2 tax director. She also has taught graduate level classes in state and local taxes at the Indiana University Kelley School of Business since 2000.

“I am proud to accept the position as the next Indiana Tax Court Judge from such a qualified panel of applicants, and I am humbled to have been chosen by the governor to try to fill the shoes of my mentor and friend, Judge Thomas Fisher,” Wentworth said. “My goal is to maintain the tax court as a forum where devotion to the rule of law, fairness to all litigants, and professional civility are the benchmarks.”

Wentworth was born in Detroit, Michigan and moved to Indiana during high school. She earned undergraduate degrees from the former Bennett College of Millbrook, New York and Indiana University and her law degree from Indiana University’s Maurer School of Law.

Hendricks Superior Court Judge Karen M. Love and Joby D. Jerrells, a lawyer in the Indiana Attorney General’s office, were the other two finalists.

A date for Wentworth’s robing ceremony will be determined by the Supreme Court.

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Indiana Courts

Ind. Decisions - More on: Rare "for publication" dissent in order denying petition for rehearing

Updating this ILB entry from earlier today, the ILB has received several comments from attorney readers, asking my opinion:

The ILB, wisely, does not have an opinion, other than to say that it is difficult to weigh the "overall tone of Everhart's petition for rehearing" without seeing it in full. Therefore, the ILB hopes to be able to obtain and post a copy of the petition...

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: Not everyone is happy with our Supreme Court's unauthorized practice decision

Updating earlier entries (the latest from Oct. 7, 2010) re the Supreme Court's April 14, 2010 opinion finding that "United Financial Systems Corporation and numerous individual respondents (collectively, “UFSC”) have engaged in the unauthorized practice of law in Indiana," the Court filed this Order yesterday. From p. 2 of the 2-page Order:

Although details regarding the notice requirement and restitutionary process remain to be resolved by the successor commissioner, UFSC thus far has refused to provide refunds even to those persons who have received notice of this Court's opinion and properly demanded a refund from UFSC pursuant to the terms of our previous opinion. UFSC apparently has taken the position that this Court's opinion does not permit the issuance of refunds until the Commissioner issues a restitutionary order. (See UFSC Respondents' Resp. to the ISBA's Renewed Req. for Ruling on Mot. to Recuse Comm'r and for Atty. Conf., at 4). This reading of our opinion is incorrect. Accordingly, UFSC is ORDERED, within ten (10) days of the date of this order, to issue refunds on all claims made to date to UFSC by persons entitled to refunds. Additionally, UFSC is ORDERED, within ten (10) days of the date of this order, to show cause why it should not be ordered to pay interest at the statutory rate on all claims made by persons entitled to a refund, effective from the date the claim was presented to UFSC.

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Attorney suspended for 30 days without automatic reinstatement

In the Matter of Daniel C. McCarthy is a 2-page disciplinary opinion dated Dec. 21, 2010. From the order:

The hearing officer found that the word “nigger” is a derogatory racist insult, that Respondent’s use of the term was not simply a historical reference to slavery but rather manifested racial bias, that he was acting as an attorney when he sent the email, and that his use of the term was not connected to legitimate advocacy. Respondent has received a prior 30-day suspension with automatic reinstatement for unrelated misconduct. * * *

The Court finds that Respondent violated Professional Conduct Rule 8.4(g), which prohibits engaging in conduct, in a professional capacity, manifesting bias or prejudice based upon race, unless the conduct constitutes legitimate advocacy. * * *

[I]n the current case, Respondent vehemently denies committing any misconduct, has offered no apology or other indication of remorse, and has a prior disciplinary suspension. We therefore conclude that a period of suspension is warranted and that Respondent should go through the reinstatement process to prove his understanding of his ethical duties and remorse before resuming practice.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 30 days, without automatic reinstatement, beginning January 28, 2011. * * *

Shepard, C.J., and Dickson, Rucker, and David, JJ., concur. Sullivan, J., concurs and dissents, agreeing with the Court's finding of misconduct but believing that a sanction less severe than suspension without automatic reinstatement is warranted.

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Ind. Sup.Ct. Decisions

Law - "The Changing Role of Criminal Defense Lawyers"

That is the heading of this Blog of LegalTimes entry today by Tony Mauro that begins:

Is the role of the criminal defense lawyer changing in the wake of a Supreme Court decision that is imposing new obligations on lawyers to advise clients about the consequences of criminal convictions?

The American Bar Association's Criminal Justice Section this week established a task force aimed at answering that question and helping criminal defense lawyers understand and meet new responsibilities to clients stemming from the Supreme Court's March decision in Padilla v. Kentucky.

That ruling found that a defense lawyer's failure to advise a client that a guilty plea would have deportation consequences for the client amounted to "constitutionally deficient" representation.

Mauro reports that the ruling "is being used in cases where guilty pleas have had consequences in other areas including employment, child custody and housing," for starters.

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to General Law Related

Ind. Decisions - 7th Circuit issues one Indiana opinion today

In Trinity Homes v. Ohio Casualty (SD Ind., J. Barker), a 14-page opinion, Judge Kanne writes:

Plaintiffs Trinity Homes and Beazer Homes Investments (collectively referred to as Beazer) were general contractors tasked with the construction of multiple residences throughout Indiana. Rather than build the homes itself, Beazer employed a bevy of subcontractors to handle the home construction— construction that turned out to be defective. After Beazer incurred significant liability related to the defective work and its insurers failed to provide coverage, it brought a claim against both its primary insurers and its umbrella insurer in district court alleging breach of contract and seeking a declaration that all of the insurers had a duty to provide coverage.

While most of the primary insurers settled with Beazer, Ohio Casualty Insurance Company stood resolute, claiming its policy did not cover faulty subcontractor work. The umbrella policy holder, Cincinnati Insurance Company, also argued that its coverage was not triggered because all of Beazer’s underlying policies were not unavailable, as required by the umbrella policy.

The district court granted summary judgment in favor of the insurers. We disagree with the district court’s construction of both insurance policies and reverse the grant of summary judgment in favor of the insurers and remand for further proceedings.

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issues one today

In Andres Sanchez v. State of Indiana, a 5-page, 4-1 opinion, Justice David writes:

Andres Sanchez received consecutive enhanced sentences for three counts of Child Molesting. Based on the character of the offender and the nature of the offenses, we revise the sentences and order them to be served concurrently. * * *

We acknowledge that, generally, multiple victims justify the imposition of enhanced and consecutive sentences. Tyler, 903 N.E. at 468; Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003). But although we find the aggravating circumstances sufficient to warrant imposing enhanced sentences, we do not believe the record supports imposing consecutive sentences. That Sanchez molested two young victims, one of whom had surgery shortly prior to the molestation, but did not physical harm the victims, in the aggregate, justifies one enhanced sentence. We therefore revise Sanchez’s sentence to the advisory term of thirty years for the two counts of molestation of V1 and to the enhanced term of forty years for the one count of molestation of V2 and order that the sentences be served concurrently.

We affirm Sanchez’s convictions and remand his sentence to the trial court with instructions to issue an amended sentencing order in accordance with this opinion, without a hearing.

Shepard, C.J., and Sullivan, and Rucker, JJ., concur.
Dickson, J., dissents with separate opinion. [concluding] The appellate revision of criminal sentences, except in such rare cases, may induce and foster reliance upon such review for ultimate sentencing evaluations and thus serve as a disincentive to the cautious and measured fashioning of sentences by trial judges. Restrained sentencing decisions are best made by a trial judge with the gravity that results from knowing that the judge's decisions are essentially final.

I am not convinced that this case is sufficiently rare or exceptional to warrant appellate intrusion into the trial court's sentencing decision.

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 14 NFP)

For publication opinions today (5):

Mark Eiler v. State of Indiana

Robert Neises Construction Corp. v. Grand Innovations, Inc., et al.

Tracey L. Beswick and Ruthie Beswick v. Edward E. Bell, M.D., and Floyd Memorial Hospital & Health Services

Term. of Parent-Child Rel. of G.B., et al.; G.B. & B.B. v. I.D.C.S. (NFP)

Glendal Rhoton v. State of Indiana

NFP civil opinions today (4):

Allen Marshall v. Kris Marshall (NFP)

James A. Nelson v. Michael Collins (NFP)

T.O., Alleged to be C.H.I.N.S.; J.C. v. I.D.C.S. (NFP)

D.R. v. Review Board (NFP)

NFP criminal opinions today (10):

Francisco Contreras v. State of Indiana (NFP)

Ryan T. Renfroe v. State of Indiana (NFP)

Clarence Lampkins v. State of Indiana (NFP)

Thomas M. Blair v. State of Indiana (NFP)

Larrell Alexander v. State of Indiana (NFP)

Jerry Bunton v. State of Indiana (NFP)

Eric Guess v. State of Indiana (NFP)

Oscar I. Belmares-Bautista v. State of Indiana

Jeffrey D. Boggs v. State of Indiana (NFP)

Mark Richmond v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "Mounting State Debts Stoke Fears of a Looming Crisis"

Updating this ILB entry from Dec. 6th, quoting a NYT story, CNBC is reporting "Wave of Muni Defaults to Spur Layoffs, Social Unrest," in a story dated yesterday that began:

A wave of defaults by state and local governments in the coming months will spark a selloff in the municipal bond market, hurting US economic growth and stocks and causing social unrest as governments are forced to lay off workers and cut back on services, well known financial analyst Meredith Whitney told CNBC Tuesday.

Responding to the uproar over her "60 Minutes" interview broadcast on CBS Sunday night, Whitney defended her prediction that at least 50 to 100 cities and towns could default on their debt as states and the federal government cut back on financial support.

Here is the 60 Minutes link.

The transcript is here: "State Budgets: The Day of Reckoning - Steve Kroft Reports On The Growing Financial Woes States Are Facing."

Recall the long ILB entry from Dec. 18th, headed "'Law would let cities declare bankruptcy'; and more from the ILB."

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Indiana Government

Ind. Courts - "Bren Simon on Tuesday asked the Indiana Court of Appeals to halt action in the lawsuit against her over Melvin Simon's disputed will"

Jeff Swiatek reports today in the Indianapolis Star:

The widow of the shopping mall magnate argues that the judge in the case has put his impartiality in question.

Her motion comes days after the judge, William Hughes of Hamilton Superior Court, removed her as trustee of her late husband's $1.8 billion estate.

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Indiana Courts

Courts - "Blogger Who Threatened 7th Circuit Judges Is Sentenced to 33 Months in Prison"

Updating a series of ILB entries ending with this one from August 14, 2010, Mark Fass of the New York Law Journal reports today:

Harold "Hal" Turner, the blogger and Internet radio host convicted of threatening three judges of the U.S. Court of Appeals for the Seventh Circuit, has been sentenced to 33 months in federal prison.

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Courts in general

Ind. Courts - Another story weighing in on the value of city and town courts

The recent recent ILB entry on this issue was this one from Dec. 18, 2010, headed "Allen County Prosecutor Karen Richards said her office will not assist the proposed Fort Wayne city court, limiting the types of offenses that could be tried there."

Yesterday, Elizabeth Donatelli, reporting for WAVE3 in southern Indiana/Louisville - the story also has a video that should not be missed.

From the end of the printed story:

The Charlestown City Court was founded in 1959 as a community court that's easy access.

"The main benefit is they don't have to go to Jeff (Jeffersonville) for their hearing," said [Judge George Waters of the Charlestown City Court].

At the end of next year it's closing for good, which Waters ended up supporting.

"I told them if they could save enough money, it would pay them to close the court down because the state's going to shut them down anyhow," said Waters.

The Indiana Judicial Conference's long-term plan recommends closing the 75 city and town courts and incorporating them into trial courts across the state to save money.

Clark County has four municipal courts. Sellersburg and Charlestown are closing at the end of 2011. Together they handled more than 600 cases in 2009. That means the remaining two courts in Jeffersonville and Clarksville as well as Clark County will pick-up the caseloads without hiring more staff.

"One of the biggest complaints I hear about the criminal justice system even these type of cases, which are the misdemeanor only jurisdiction, is the delay involved," said Clark County Prosecuting Attorney Steve Stewart. "This is going to add to that delay."

The president of the Jeffersonville City Council Nathan Samuels tells WAVE 3 the council discussed it last year, but has no plans to close its court. The Jeffersonville City Court handled 1,511 cases last year. Its Judge, Ken Pierce, argued it's actually a cost saver.

"The cost per case in the municipal courts is far cheaper because we're able to keep our docket running more smoothly because we don't have the added responsibility of addressing civil cases and of felony cases," said Pierce.

As for the Clarksville Town Court, Gregory Isgrigg, president of the Town Council, said it is on the agenda for Monday, but he had not further comment. The Clarksville court handles about 1,200 cases every year.

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Indiana Courts

Ind. Decisions - Opinion posted late yesterday by Tax Court

In Virgina Garwood, et al. v. Indiana Dept. of State Revenue, an 11-page opinion, Judge Fisher writes:

Come now the parties on the Indiana Department of State Revenue's (Department) motion to dismiss. The Court, having held a hearing and being duly advised in the premises, now DENIES the Department's motion.
This case involves an investigation begun by the IDOR and the Attorney General of "Virginia and Kristin Garwood' business activities to determine whether they were conducting sales of puppies and not remitting the Indiana sales and income tax due on the sales." The question in this case involves the jurisdiction of the Tax Court.
The Department has presented two alternative reasons as to why the Court lacks subject matter jurisdiction over the Garwoods' petition. First, the Department contends that the Indiana Supreme Court case of State ex rel. Indiana Department of Revenue v. Deaton (Deaton II), 755 N.E.2d 568 (Ind. 2001) controls the outcome of this matter. (See Resp't Br. at 7-10.) Alternatively, the Department contends that the Garwoods' failure to exhaust their administrative remedies by filing a claim for refund with the Department has deprived this Court of its ability to address the claims presented in their petition. The Court will address each of these arguments in turn.

The Department maintains that Deaton II stands for the proposition that its jeopardy tax warrants are the final judgments of the Harrison Circuit Court; thus, “„the day for disputing the tax is over, and the matter has progressed to the collection stage.'” (See Resp't Br. at 9 (quoting Deaton II, 755 N.E.2d at 571).) A close reading of that case, however, reveals otherwise. * * *

Here, unlike in Deaton II, the Garwoods have attempted to contest the validity of the jeopardy tax assessments with both the Department and this Court. Admittedly, Indiana Code § 6-8.1-5-3, on its face, provides no opportunity to contest jeopardy tax assessments; nevertheless, the Indiana Supreme Court has pronounced that taxpayers like the Garwoods may challenge jeopardy tax assessments pursuant to Indiana Code § 6-8.1-5-1. Clifft v. Ind. Dep’t of State Revenue, 660 N.E.2d 310, 317-18 (Ind. 1995).8 Accord 45 I.A.C. 15-5-8(c). Deaton II therefore does not control the outcome of this matter; rather, it simply suggests that the jeopardy tax warrants at issue in this case have not attained the status of “judgments.”

The Court now turns to the Department's alternative claim, that the Garwoods' failure to file a claim for refund with the Department now precludes their challenge with this Court. To resolve this issue, the Court must determine whether the Garwoods' appeal to this Court both “arises under the tax laws” of this state and “is an initial appeal of a final determination made by . . . the [Department] with respect to a listed tax (as defined in Indiana Code § 6-8.1-1-1)[.]” A.I.C. § 33-26-3-1. The Court finds that the Garwoods' appeal satisfies both of these requirements. * * *

The Department assessed the Garwoods with liabilities for Indiana's income and sales taxes, both of which are listed taxes under Indiana Code § 6-8.1-1-1. See IND. CODE ANN. § 6-8.1-1-1 (West 2007.) The Garwoods timely protested those assessments with the Department in conformity with Indiana Code §§ 6-8.1-5-1 and 6-8.1-5-3, 45 IAC 15-5-8, and Clifft. The Department subsequently issued a letter, without holding a hearing, advising the Garwoods that the relief they sought was in the Harrison Circuit Court. Therefore, for purposes of this case, the Department's letter constituted a final determination. The Garwoods' action is an original tax appeal; therefore, the Court denies the Department's 12(B)(1) motion to dismiss. * * *

For the above stated reasons, the Department's motion to dismiss is DENIED in its entirety.

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Rare "for publication" dissent in order denying petition for rehearing

Recall the July 21 COA opinion in Indiana Dept. of Insurance v. Robin Everhart, summarized here by the ILB - 3rd case. The opinion was written by Sr. Judge Sullivan, CJ Baker and J. Robb concurred. The court reversed the trial court’s judgment and remanded for a recalculation of damages consistent with this opinion.

Late yesterday afternoon (Dec. 21, 2010, 2:50 PM) this 9-page "Dissent to order denying petition for rehearing - for publication" was posted. The dissent is authored by J Robb. It begins:

In Indiana Dep't of Ins. v. Everhart, 932 N.E.2d 684 (Ind. Ct. App. 2010), we addressed the issue of whether the Indiana Patient's Compensation Fund (the “Fund”) was liable for the full amount of excess damages when in the absence of a doctor's negligence, the decedent would have had a “better than 80% chance” of surviving injuries incurred in an automobile accident. The trial court awarded to the Estate of James Everhart the statutory maximum damages of $1,000,000 and the Fund appealed. We reversed, holding the trial court should have awarded damages only in proportion to the increase in risk of harm that was caused by the malpractice, relying on the approach set forth in Restatement (Second) of Torts § 323 (“section 323”) and adopted in Mayhue v. Sparks, 653 N.E.2d 1384 (Ind. 1995). Everhart, 932 N.E.2d at 689-90. Everhart has petitioned for rehearing, contending section 323 should not be applied under the facts of this case. Upon revisiting the case as a whole, I agree and would grant the rehearing. I therefore respectfully dissent from my colleagues' denial of Everhart's petition for rehearing.
Practitioners should also note the ending of soon-to-be-Chief Judge Robb's opinion:
And despite agreeing with Everhart that rehearing is warranted, I also note the overall tone of Everhart's petition for rehearing is not in general effective appellate advocacy. See Appellee/Plaintiff's Petition for Rehearing at 2 (“This Court's opinion destroys the foundation of our civil justice system . . . .”); and 11 (“If this decision stands, proximate cause is no longer meaningful, and the concept of a preponderance of the evidence is sitting on the window sill ready to fall. The potential for appellate issues is staggering.”). “Righteous indignation is no substitute for a well-reasoned argument.” WorldCom Network Servs., Inc. v. Thompson, 698 N.E.2d 1233, 1236-37 (Ind. Ct. App. 1998), trans. denied. I would caution counsel that future disagreement with this court can and should be addressed without unnecessary hyperbole. However, upon reconsideration, I agree with Everhart's basic assertion that the trial court's order for full excess damages should have been affirmed, and I would grant the rehearing and vacate our earlier opinion for the reasons expressed herein.

Posted by Marcia Oddi on Wednesday, December 22, 2010
Posted to Ind. App.Ct. Decisions

Tuesday, December 21, 2010

Courts - “Chief Justice Roberts promised to just call balls and strikes and then he moved the bases.”

Words from retiring Senator Arlen Specter. See the WSJ Law Blog here.

Posted by Marcia Oddi on Tuesday, December 21, 2010
Posted to Courts in general

Law - "2 Law Profs Win $5.2M Verdict in Defamation Case Over Pocket Part Authorship"

Martha Neil of the ABA Journal Blog had this interesting article today. Be sure to read the earlier coverage too, from Dec. 14th. It begins:

Two longtime authors of the supplementary "pocket part" to a Pennsylvania criminal procedure treatise say they were shocked when they saw they were still listed as the authors of a "sham" new version in 2008, after refusing to revise it because of a pay dispute with West Publishing Co.

The embarrassingly thin update contained only a few new cases, contend law professors David Rudovsky of the University of Pennsylvania and Leonard Sosnov of Widener University. And they were afraid, because they were listed as its authors, that readers would assume they were responsible for the poorly researched product, recounts the Legal Intelligencer in an article reprinted in New York Lawyer (reg. req.).

Posted by Marcia Oddi on Tuesday, December 21, 2010
Posted to General Law Related

Ind. Courts - "Judge Friedlander donates Supreme Court memorabilia to IU Maurer School of Law"

Here is the news release from Indiana University. The items donated include:

Posted by Marcia Oddi on Tuesday, December 21, 2010
Posted to Indiana Courts

Ind. Courts - "Maintaining the Chronological Case Summary"

The Indiana Courts website today features a Dec. 1, 2010 article by Doyal McLemore on the chronological case summary (CSS).

The ILB can recall several opinions where the CSS is an issue. For instance, a quick review of the past two years of ILB entries revealed: This Aug. 17, 2010 opinion in Cullen Davis Walker v. State of Indiana; this Jan. 19, 2010 opinion in Richard A. Swoboda v. Richard Stalbrink (NFP); this Aug. 17, 2009 opinion in Rita V. Lang v. State of Indiana; and this June 19, 2009 opinion in Carolyn Lange v. Sisters of St. Francis Health Services, Inc. d/b/a St. Clare Medical Center (NFP),

Posted by Marcia Oddi on Tuesday, December 21, 2010
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today, so far

In Anthony D. Delarosa v. State of Indiana, a 10-page, 5-0 opinion in a direct appeal, the first opinion we've seen from Justice David, he writes:

In this direct appeal, Anthony Delarosa seeks reversal of his convictions for two counts of murder and one count of conspiracy to commit murder, for which he received two sentences of life imprisonment without parole and one sentence of fifty years. Delarosa argues that the trial court‘s admission of alleged hearsay statements and the prosecutor‘s closing arguments independently constituted fundamental error, and that the evidence at trial was insufficient to sustain his convictions. We affirm the trial court.

Posted by Marcia Oddi on Tuesday, December 21, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

In Sherene M. Poling v. State of Indiana, a 10-page opinion, Judge Vaidik writes:

Sherene M. Poling appeals her conviction for Class D felony theft arising from her act of stealing cigarettes from a store. Poling contends that the trial court abused its discretion by denying her request to instruct the jury on criminal conversion as a lesser included offense of theft and that the State committed prosecutorial misconduct during closing arguments by reading Indiana Code section 35-43-4-4(c), which indicates that concealing property offered for sale and removing it from the business premises constitutes prima facie evidence of theft. We conclude that the trial court did not abuse its discretion by refusing to instruct the jury on criminal conversion because there was no serious evidentiary dispute regarding Poling’s intent to deprive the store of the cigarettes’ value or use. Further, Poling has waived her claim of prosecutorial misconduct and thus must show fundamental error. Concluding that there is no error, much less fundamental error, in the State’s reading of Section 35-43-4-4(c), we affirm.
In Paternity of D.L.; C.L. v. Y.B., a 14-page opinion in an interlocutory appeal, Judge Crone writes:
Y.B. (“Mother”) gave birth to D.L. out of wedlock. In 1996, Mother brought a paternity action against C.L., who admitted to paternity and was ordered to pay child support. For over ten years, C.L. shared the financial costs of raising D.L. with Mother and exercised regular visitation with D.L. Eventually, C.L. and Mother agreed to genetic testing, which excluded C.L. as D.L.’s biological father. Genetic testing established another man as D.L.’s biological father, and paternity was formally established in that man. At that time, C.L. was behind on his child support payments. He asked the trial court to be relieved from paying the child support arrearage because the paternity test showed that he is not D.L.’s biological father. The trial court denied his request, and C.L. appeals. We conclude that because C.L.’s paternity was vacated due to mistake of fact, his child support, including any arrearage, must be terminated. Therefore, we reverse and remand. * * *

[F]or all intents and purposes C.L.’s paternity of D.L. has been disestablished. Indeed, the State argues that a motion to disestablish paternity is not necessary because paternity was established in K.G. in September 2009. If paternity has been established in K.G., it follows that it must be disestablished in C.L. In addition, the trial court entered the paternity tests showing that C.L. is not D.L.’s biological father and also found that C.L. should not be responsible for any further child support for D.L. In effect, the State no longer deems C.L. to be D.L.’s legal father, and C.L. has lost the rights and obligations contingent to that status. As such, we will address C.L.’s argument as to his child support arrearage. * * *

Indiana Code Section 31-14-11-23 provides, “If a court vacates or has vacated a man’s paternity of a child based on fraud or mistake of fact, the man’s child support obligation, including any arrearage, terminates.” (Emphasis added.) To date, no Indiana appellate court has applied Indiana Code Section 31-14-11-23. * * *

As previously mentioned, the application of Indiana Code Section 31-14-11-23 is a matter of first impression. This case permits us to make two observations regarding its application. First, because Section 31-14-11-23 terminates child support, including arrearage, where fraud or mistake of fact occurred in establishing paternity, the trial court’s determination that C.L. is still responsible for his child support arrearage even if he was deceived is inconsistent with the statute. See Tr. Vol. 2 at 13 (trial court explaining to C.L. that he was D.L.’s father “even though you may have, even if what you say is true, that you’ve been deceived by it.”).

Second, the trial court rejected C.L.’s request to terminate his child support arrearage based in part on its observation that C.L. did not “stumble” upon the results of the genetic testing. Id. We note that Section 31-14-11-23 does not require that genetic testing proving nonpaternity be obtained inadvertently. The trial court’s focus on whether C.L. inadvertently discovered his nonpaternity appears to be based on a line of cases beginning with Fairrow v. Fairrow, 559 N.E.2d 597, 600 (Ind. 1990), in which our supreme court concluded that the mother’s former husband was entitled to termination of the child support required by the dissolution decree because the genetic testing that established that he was not the child’s biological father was conducted in the course of ordinary medical care because the child had sickle cell anemia. * * * We observe that Fairrow was decided before the original version of Section 31-14-11-23 was added to the Indiana Code in 1994. Further, Section 31-14-11-23 governs the remedy to be implemented once a man’s paternity has been vacated, not the propriety of vacating paternity. Thus, to the extent that these cases involve a challenge to paternity, they confront an issue different from that addressed in Section 31-14-11-23. Reversed and remanded.

ILB: See also this ILB entry from March 18, 2007, headed "Does Avowal of Fatherhood Impose an 'Equitable Paternity'."

In James McGraw v. State of Indiana , a 5-page opinion, Judge Bailey writes:

McGraw contends that his guilty plea was involuntary because he was under the influence of medications given to him by other jail inmates. He further asserts that he was unduly pressured when the trial judge abandoned her role of neutrality and actively entered into plea agreement negotiations on behalf of the State. * * *

McGraw has not established that the withdrawal of his plea is necessary to correct a manifest injustice. The trial court acted within its discretion by denying McGraw’s motion to withdraw his guilty plea.

NFP civil opinions today (1):

Walter Angermeier, et al. v. Indiana Farmers Mutual Ins. Group (NFP)

NFP criminal opinions today (10):

James Williams v. State of Indiana (NFP)

James Ross v. State of Indiana (NFP)

Tyrone L. Townsell v. State of Indiana (NFP)

Douglas N. White v. State of Indiana (NFP)

Ryan Rogers v. State of Indiana (NFP)

Christopher M. Sutton v. State of Indiana (NFP)

Arenzo Richmond v. State of Indiana (NFP)

Rodney Roscoe v. State of Indiana (NFP)

D.B. v. State of Indiana (NFP)

Chretien Arnold v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 21, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana opinion today from 7th Circuit

In U.S. v. Lawrence Taylor (ND Ind., J. Miller), a 10-page opinion, Judge Cudahy writes:

Appellant Lawrence Taylor appeals from his sentences for bank robbery and for violating the terms of his supervised release relating to an earlier bank robbery conviction. Because the district court erred by failing to appreciate its discretion to impose the sentences either consecutively or concurrently, we remand for the court to reconsider that aspect of the sentencing package.

Posted by Marcia Oddi on Tuesday, December 21, 2010
Posted to Ind. (7th Cir.) Decisions

Law - "2010 Census and Redistricting"

The NPR Diane Rehm Show this am, at 10 EST:

Later today the U.S. Census Bureau will release the first official results from the 2010 census. The report will include the nation’s total resident population and congressional apportionment totals for each state. Ten states are forecasted to lose congressional seats. Eight may pick up at least one additional seat. In state capitals across the country, Republicans have considerably more power, and this clout may well come in handy when new congressional district lines are drawn. Political analysts join us to talk about the U.S census data and how the overall political landscape may be shifting. Please join us. Guests:

Amy Walter, political director, ABC News.
Kimball Brace, Election Data Systems
Stuart Rothenberg, editor and publisher of the Rothenberg Political Report

See also this column in the NY Times by Nate Silver, with charts and tables.

[Updated at 12:30 PM] - The WSJ now has an analysis and maps on today's release.

Posted by Marcia Oddi on Tuesday, December 21, 2010
Posted to General Law Related

Monday, December 20, 2010

Ind. Decisions - Supreme Court issues disciplinary order today

In the Matter of Stephen A. KRAY is a 2-page order:

Stipulated Facts: A client retained Respondent to represent her in a dissolution case. Respondent sent the client a letter outlining the objectives of the representation and asking that the client "advance $3,000.00 toward the legal expense." The letter stated that "the overall expense will depend upon the total amount of work to be done and the outcome of the case" without detailing how Respondent's fee would be calculated. The client paid Respondent the requested $3,000, which Respondent did not put into a trust account. Respondent did not have a trust account at this time. The case was resolved through a mediated agreement, and the parties agree Respondent's total fee was not unreasonable.

Facts in mitigation are:
(1) Respondent was cooperative and has accepted responsibility for his actions; and (2) he has become more knowledgeable about the issues of this case and has taken steps to revise his fee agreements to conform with the Rules of Professional Conduct.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

  • 1.4(b): Failure to explain a matter (the basis of his fee) to the extent reasonably necessary to permit a client to make informed decisions.
  • 1.5(b): Failure to communicate the basis or rate of the fee for which a client will be responsible.
  • 1.5(d): Entering into a contingent fee agreement in a dissolution case.
  • 1.15(a): Failure to deposit legal fees paid in advance into a client trust account.
Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent's misconduct.

Posted by Marcia Oddi on Monday, December 20, 2010
Posted to Ind. Sup.Ct. Decisions

Law - WSJ today has story on national push to end puppy mills

The story may be available here to nonsubscribers. It is reported by Stephanie Simon and headed "States Nip at Dog Breeders:
New Puppy-Friendly Laws, Sought by Animal-Rights Activists, Raise Bar for Industry."
A sample:

This fall, the animal-rights movement scored its biggest victory yet, as the top puppy-producing states in the nation, Missouri and Oklahoma, moved to enact some of the toughest standards anywhere.

Critics are pushing to overturn the new rules in both states, but if they do take effect next year, all sides agree they could transform the industry.

Posted by Marcia Oddi on Monday, December 20, 2010
Posted to General Law Related

Ind. Courts - "Hendricks Co. prosecutor files charges in Carmel abuse case"

Robert Annis of the Indianapolis Star reports this afternoon:

DANVILLE – Hendricks County filed misdemeanor charges against two former Carmel High School basketball players for their alleged actions on a team bus traveling through the county.

According to the probable cause affidavit, the victim identified as M.D. was grabbed and pushed down on the bus. Kitzinger sat on his head while someone else put his hand “into his butt.” Witnesses on the bus confirmed Kitzinger and Hoge as the two perpetrators.

The victim’s attorney, Robert Turner, had urged felony charges, but Hendricks County Prosecutor Pat Baldwin said the misdemeanor counts were more appropriate.

A reader writes:
I don't see how this is misdemeanor battery--or why it took nearly a year to "investigate" and file charges.
The reader cites:
IC 35-42-4-2 Criminal deviate conduct
Sec. 2. (a) A person who knowingly or intentionally causes another person to perform or submit to deviate sexual conduct when:
(1) the other person is compelled by force or imminent threat of force;
(2) the other person is unaware that the conduct is occurring; or
(3) the other person is so mentally disabled or deficient that consent to the conduct cannot be given;
commits criminal deviate conduct, a Class B felony.
The reader also cites IC 35-41-1-9, the definition of "Deviate sexual conduct."

See also this March 20, 2010 ILB entry, headed "Carmel hazing case takes new turn: Decision whether to file charges is now Hendricks County's, not Hamilton's."

Posted by Marcia Oddi on Monday, December 20, 2010
Posted to Indiana Courts

Law - "Chicago's top-ticketing suburbs"

An investigative series Saturday in the Chicago Tribune on Chicago's top-ticketing suburbs is of particular interest here because of all the recent news on cities and towns wanting to create their own courts to raise revenue.

Posted by Marcia Oddi on Monday, December 20, 2010
Posted to General Law Related

Ind. Decisions - More on: Well, we have another opinion from the Supreme Court

Friday afternoon, Dec. 17th, at 3:57 pm, this 5-0 opinion denying a petition for rehearing in Sheehan Construction Company v. Continental Casualty was filed. The ILB summarized it shortly thereafter, here. In the petition: "Indiana Insurance seeks rehearing of this Court’s opinion in which we determined that damage caused by faulty workmanship may be covered under a standard Commercial General Liability (CGL) policy."

Today in the "Orders" (as opposed to opinions) section of the Court website, I found this "Published order denying petition for rehearing" in the same case, filed om Dec. 17, 2010 at 4:06 pm.n this Order, "Appellee Continental Casualty Company's Petition for Rehearing is hereby DENIED with dissenting opinion." The vote is 3-2, with Sullivan, J., dissenting with separate 2-page opinion, in which Shepard, C.J., joined.

Posted by Marcia Oddi on Monday, December 20, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending December 17, 2010

Here is the Clerk's transfer list for the week ending December 17, 2010. It is one page (and 20 cases) long.

Three transfers were granted for the week ending Dec. 17, 2010.

__________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the October 8, 2010 list.

Over 6.5 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Monday, December 20, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Bruce R. Smith v. Morgan L. Smith , a 6-page opinion, Judge Kirsch writes:

Bruce R. Smith (“Bruce”) appeals from the trial court’s division of marital property in the dissolution of his marriage to Morgan L. Smith (“Morgan”). Bruce raises the following restated issue: Whether the trial court abused its discretion in the division of the marital estate. We reverse and remand. * * *

Here, the trial court’s division of the marital estate resulted in a net award to Morgan of $11,440.50 and a net award to Bruce of -$4,977.50. The award to Morgan exceeded the net value of the marital estate and constitutes an abuse of discretion. We remand this matter to the trial court for a just and reasonable division of the marital estate not exceeding the net value of the marital estate.

In Reginald D. West v. State of Indiana , a 9-page opinion, Sr. Judge Sharpnack writes:
Petitioner-Appellant Reginald West appeals the denial of his petition for post-conviction relief. We affirm.

West raises the following issues for our review, which we restate as: I. Whether the post-conviction court erred in determining that West was afforded effective assistance of trial counsel when counsel did not object to certain statements made by the deputy prosecutor in her closing and rebuttal statements. II. Whether the post-conviction court erred in determining that West was afforded effective assistance of trial counsel when counsel did not call certain alibi witnesses.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of I.L., et al.; A.L. & P.L. v. IDCS (NFP)

A.Q. v. Review Board, et al. (NFP)

NFP criminal opinions today (3):

Markisha Hill v. State of Indiana (NFP)

Corey J. Smith v. State of Indiana (NFP)

J.P. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 20, 2010
Posted to Ind. App.Ct. Decisions

Courts - IU Mauer Law prof's study of post-Booker sentencing realities in Massachusetts federal courts cited

"Disparity cited in sentence lengths" is the headline today to this long Boston Globe story by Jonathan Saltzman. The US Supreme Court struck down mandatory sentencing guidelines five years ago:

Now that the guidelines are only advisory, the three most lenient jurists [in the federal District of Mass] impose average prison sentences of slightly more than two years for all crimes, said the study in the Stanford Law Review published this week. The two toughest impose average sentences double that.

The findings are troubling, said the author of the study, Ryan W. Scott, an associate professor at Indiana University’s Maurer School of Law, because they raise the specter of defendants getting markedly different punishments depending on the politics and biases of the judges before whom they appear.

See also this discussion at Sentencing Law Blog.

Access the Stanford Law Review article here.

Posted by Marcia Oddi on Monday, December 20, 2010
Posted to Courts in general

Ind. Courts - Stll more on: "Clark County Legal Self-Help Center has a green light, even if full judicial support is yet to be determined"; Marion County observations

Updating this ILB entry from May 27, 2010, Ben Zion Hershberg reported Dec. 17th in the Louisville Courier Journal:

Individuals and businesses have committed $19,000 in contributions to the Clark County Legal Self Help Center to buy computers and related equipment for use by the center’s low-income patrons.

The self-help center opened in the spring in the lobby of the Clark County Courthouse on Court Avenue in Jeffersonville, with students from the University of Louisville Law School and lawyers volunteering on Tuesday and Thursday afternoons.

The volunteers direct people with legal questions to organizations or lawyers who can help them fill out forms or find information they need to help themselves. The service, which is free, helps about 40 to 50 people a month, said Circuit Judge Daniel Moore, who helped start it.

The self-help center doesn’t provide formal legal advice or services, but Moore said it can provide “guidance and direction” to people not familiar with the legal system. * * *

The center is available for use by people with incomes up to 150 percent of the federal poverty guideline—about $22,000 a year for a four-person household.

Matt Thacker of the Jeffersonville News & Tribune wrote Dec. 18th:
JEFFERSONVILLE — Several computers will be set up at the Clark County Legal Self Help Center to assist people below the poverty level in completing legal documents, says Clark County Circuit Court Judge Dan Moore.

The computers were made possible through a community fundraising effort.

“This is an idea that is long overdue and this mix of business and personal supporters and established foundations speaks volumes about the special people in Clark County who care for their fellow citizen, who may be facing legal issues for the first time,” Moore said in a news release from the court. * * *

“I would like to see one of these in every county in the state,” said Judge Melissa May, of the Indiana Court of Appeals.

She is the chairperson of the Indiana Pro Bono Commission and was guest speaker at a dedication Tuesday for the computer phrase of the Legal Self Help Center, located on the first floor of the Clark County Government Building.

The concept for the center was initiated in late 2009 by Moore, along with a group of lawyer volunteers and Jill W. Oca, a certified public accountant who serves as chairperson of the Board of Planners.

Oca said the computers will be available only to those who are at the 150 percent federal poverty guideline or lower. The computers are intended for those who have no other options and no means to hire a private attorney.

“We continue to support local attorneys and refer persons to those attorney offices who have registered with the center,” she said. “This is all about supporting people who find themselves in a litigation setting, and we thank those lawyers who have volunteered to accept referrals.”

ILB Observations: Marion County had the basics of such a resource until this year. See this ILB entry from Jan. 2, 2010, headed "Closing this library, dismantling the resources, dismissing the librarian -- this is very unfortunate and falls into the 'whatever can they be thinking?' category"

Things appear to be worse for Marion County citizens one year later. The Jan. 2, 2010 entry included quotes from a story by the then-Star reporter, Francesca Jarosz:

Librarian Zoya Golban turned off the lights and locked the doors Wednesday at the Marion County Law Library for the last time.

The cozy repository for legal materials and publicly accessible computers on the third floor of the City-County Building will permanently close this year because of city budget cuts.

But the library's closing, court officials say, won't be the end of the help the center provided to the roughly 3,000 Marion County residents who represent themselves in civil cases each year.

Starting Monday, those self-represented (or "pro se") litigants will be directed to an existing cluster of four computers at the Family Resource Center on the main floor of the City-County Building. There, they will be able to obtain help in finding forms they need to file in court and print documents -- functions previously served by the law library.

Those who want to access books the law library offered will be sent to the Indianapolis-Marion County Central Library, which will take on a portion of the law library's collection designed for people representing themselves in court. * * *

Library employees also will receive some training to help pro se litigants, but their resources are limited.

The library's public computers have time restrictions for usage. And since the library's staff has to answer questions on many different subjects, they can't focus solely on people seeking legal information, said Laura Bramble, chief executive officer of the Indianapolis-Marion County Public Library.

"In the past, we could send them on to the Marion County Law Library as they need additional help," Bramble said. "Now we won't be able to do that."

Another unanswered question is to what extent the library, which itself is facing budgetary challenges, will be able to update the books the county law library provides. Bramble said library staff would have to review how often the materials they receive need to be updated and at what cost.

Since the beginning of the year, the Marion County Central Library itself has been forced to seriously cut-back the hours it is open. It now does not open until 10 in the morning and is completely closed on Thursdays. Money for upgrading collections has been cut.

I use the Central Library frequently and haven't seen any identifiable collection from what had been the Marion County Law Library. While there, I have witnessed people coming in asking for help with locating Indiana Code citations being met with blank stares by library staff members.

What I do see at the Central Library is people lined up waiting for it to open in the mornings and people signing up on lengthy waiting lists for computer access. Access is essential to them because our state government has moved so many functions of state government online -- these people need computer access to login to meet unemployment comp requirements, to file FSSA claims, etc.

Forcing Marion County citizens to locate and learn to use computers in order to communicate with state government and the courts, while at the same time shutting the County Law Library and cutting back the Public Library hours and staff, seems rather perverse.

Posted by Marcia Oddi on Monday, December 20, 2010
Posted to Indiana Courts

Law - LCJ has massive 3-day series on "Preying on Seniors"

Day 1 was Sunday, the Louisville Courier Journal Special Report continues today and tomorrow. Here is the overview:

PART 1 - Reports of elder abuse are growing in Kentucky — a trend that likely will worsen as the state's population ages.
PART 2 - Law enforcement officials say there is a seemingly endless stream of thefts, fraud and scams against the elderly and other vulnerable adults.
PART 3 - Kentucky's court-appointed public guardians for elderly and other vulnerable adults continue to labor under caseloads more than triple the recommended level.
Here is one of today's PART 2 stories, a lengthy report by Deborah Yetter headed "Preying on Seniors | Seniors increasingly face physical abuse, financial crimes."

Posted by Marcia Oddi on Monday, December 20, 2010
Posted to General Law Related

Catch-up: What did you miss over the weekend from the ILB?

Here is the answer to "What did you miss over the weekend from the ILB? But first, please think about becoming an ILB supporter!

From Sunday, December 19, 2010:

From Saturday, December 18, 2010:

Posted by Marcia Oddi on Monday, December 20, 2010
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/20/10):

Wednesday, December 22nd

Next week's oral arguments before the Supreme Court (week of 12/27/10):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 12/20/10):

Next week's oral arguments before the Court of Appeals (week of 12/27/10):

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, December 20, 2010
Posted to Upcoming Oral Arguments

Sunday, December 19, 2010

Ind. Gov't. - More on: "JUSTICE REINVESTMENT IN INDIANA: Summary Report & Policy Framework"

Updating this ILB entry from Dec. 16th, here are some stories from the weekend:

The Dec. 19th (today's) Fort Wayne Journal Gazette has an editorial headed "Smarter, not softer sentences," that concludes:

For anyone who believes this approach is too soft on crime, consider this point: One result of changing the sentencing and supervision structure is that prisons, parole and probation officers can then focus on the worst offenders. It makes no sense that an estimated 71 percent of the state’s prisoners are being held for non-violent offenses.

Daniels deserves praise for his role in commissioning the study and supporting its conclusions.

“We have hoped for a package of changes that will bring more certain and firm punishments to the worst offenders in Indiana, more sensible, smarter incarceration for those who pose much less of a danger to Hoosiers and, as a byproduct of that, grace to taxpayers in the form of lower costs in the years ahead,” he said.

If the General Assembly adopts the recommendations, those results can occur.

Today's Terre Haute Tribune-Star has this long story by Lisa Trigg. A quote:
Many state leaders think Indiana’s sentencing guidelines are out of whack in terms of protecting the public from violent offenders. And a new report analyzing crime and prison population in Indiana reveals that state laws do not result in sentences that are proportionate to the severity of the crime.

Some Wabash Valley officials agree with that assessment, and support proposed legislation to change sentencing guidelines.

Vigo Superior Court Judge David Bolk, who serves on the Indiana Judicial Conference Board of Directors, said the new report has some interesting conclusions in two primary areas — drug sentencing guidelines and the penalties for felony theft.

“Indiana is behind the curve and it really adds to the prison population,” Bolk said of the sentencing guidelines. * * *

Another big point made by the study’s findings, is that Indiana’s violent crime rate has declined during the past 10 years, but the overall arrest rates have increased, boosting prison population 41 percent since 2000. Of those admitted to prison in 2009, 66 percent spent less than one year behind bars, according to prison statistics.

Bolk said he thinks that community-based treatment for the non-violent offenders is a better option than short-term prison sentences. But for that to work, the state would need to allocate dollars to professional drug treatment facilities. In the past year, Terre Haute has lost two such facilities due to financial difficulties.

The one remaining professional facility shows positive results for its clients, at a cost far cheaper than incarceration, making it a more cost-effective option than incarceration, Bolk noted.

“We cannot continue to incarcerate people at the rates we do,” he said simply.

Dorothy Schneider has a long story today in the Lafayette Journal Courier. Some quotes:
"In Tippecanoe County we're ahead of the curve," Prosecutor Pat Harrington said. "Maybe the state is just getting around to looking at what counties are doing like we are here."

Sheriff Tracy Brown can't point to one reason for the lower jail census, but he said he can't remember when the numbers have been at or below 500 inmates for as many months in a row. The average daily population at the jail for November was 469.

The average population through the first 11 months of 2010 was 508 at the jail, down from an average of 532 in 2009.

One factor in having fewer inmates staying at the jail could be as simple as the new credit card option offered in the jail lobby for people to use in posting bond, Brown said. But the sheriff believes more is playing into the lower numbers.

"Our Community Corrections program is second to none in the state," he said.

"We're having more people diverted (there). We have a lot more communication between our office, Community Corrections, the courts and prosecutor's office." * * *

In addition to changing sentencing rules in Indiana, the group that worked on the criminal code study is urging support for programs that keep those who commit low-level felonies out of the state correctional system.

"That's what we do," said Dave Heath, director of Tippecanoe County's Community Corrections department, which handles electronic monitoring, work-release and house arrest programs for hundreds in the area.

Heath said there's room for Tippecanoe County's programs to grow.

Right now the community corrections programs statewide serve mostly Class D felony and misdemeanor offenders, according to the Pew study. But there's not enough coordination within the system as a whole, the report says.

Brown said that's not the case in Tippecanoe County, pointing as one example to the mental health training that officers in his department and with the cities receive to better handle those individuals when they come into contact with law enforcement. * * *

On the probation front, the report cites concerns over a rising caseload. The number of people on supervised felony probation increased 56 percent from 1999 to 2008.

Chief probation officers statewide have reported problems because their department caseloads are too high. Kipp Scott, Tippecanoe County's chief probation officer, said heavy caseloads continue to be an issue, especially since his department lost two probation officers in this year's budget cuts.

But communication concerns cited elsewhere in the state aren't a problem here, he said.

"We've been consolidated since day one," Scott said. "We have a good relationship with community corrections and court services. We share information daily."

Scott is excited about the possibility that reforms will give judges more sentencing options.

Posted by Marcia Oddi on Sunday, December 19, 2010
Posted to Indiana Government

Ind. Gov't. - Still more on "Commission will seek your help to draw maps: Citizens group to suggest changes in districts to lawmakers"

Updating this earlier ILB entry from yesterday, Ken Kusmer of the AP reports today:

INDIANAPOLIS — A citizen panel backed by the League of Women Voters and AARP will hold public hearings on the redistricting process and monitor the drawing of new maps by General Assembly, but Indiana House Speaker Brian Bosma said it might create confusion.

The Indiana Citizens Redistricting Commission co-chaired by former lawmakers Dave Crooks of Washington, a Democrat, and Republican Bill Ruppel of North Manchester says it wants to ensure the redistricting process emphasizes competition and fairness, not incumbent protection and partisan advantage. * * *

The citizen panel marks the latest effort to dilute the influence of party politics in the redistricting process. Gov. Mitch Daniels and Secretary of State Todd Rokita, both Republicans, urged the General Assembly to place new non-partisan guidelines on redistricting, but legislation died in the House after then-Speaker Patrick Bauer, D-South Bend, deemed it a distraction.

Legislative districts are redrawn every 10 years after each national census. In some states, independent panels redraw the lines, but in Indiana, it's done by the political party or parties controlling the two chambers of the Legislature. Republicans will control both chambers when lines are redrawn next year.

The citizens commission said a politicized redistricting 10 years ago, when Democrats controlled the House, resulted in the northwest Indiana city of Chesterton, with a population of about 8,000, being divided among three Indiana House districts and the towns of Frankton and Rockport, each with populations of about 2,000, both being divided between two House districts. * * *

The 10-member citizen panel said it will hold public hearings and encourage members of the public to use free mapping software to draw their own legislative maps to compare against those produced by the General Assembly.

However, House Speaker Bosma said census data critical to redrawing the legislative maps won't be available until late February. He also said members of the public might confuse the hearings held by the citizen panel with those held by legislative committees.

”We certainly welcome citizen input,“ Bosma said in an interview. ”We pledge to draw fair districts and to abide by all constitutional and statutory requirements, and to comply with the Voting Rights Act.“

ILB: It is possible that the public will be confused by the citizen panel hearings because they are the only ones that go beyond the taking of testimony and move into actual line drawing. It will be interesting to see how the transparency promised by both parties this year will carry over into the redistricting process. Typically, the final boundaries have been negotiated in private and revealed in the last days of a session, like the final budget bill, through the opaque conference committee process, where "surprises" may be revealed later. Further, this is more than a political party thing, every incumbent stands to be impacted by how the new lines are drawn, so the fact that one party holds the majority in both houses really doesn't insure a smooth process. (As former State Reps. David Crooks is quoted in this story by Mary Beth Schneider: “The good, the bad and the ugly. All three are there,” Crooks said of the redistricting process that he said too often revolves around where the incumbents’ live and incumbents’ insistence on protecting their chances of re-election. Instead of voters choosing their officeholders, officeholders are choosing their voters, he said.)

Posted by Marcia Oddi on Sunday, December 19, 2010
Posted to Indiana Government

Environment - Gas station UST leak renders house in Hobart uninhabitable

The Gary Post Tribune today has several feature stories by Gitte Laasby about leaking underground storage tanks. The lengthy main story recounts the experiences of Terry Morgan of Hobart, who has lived next to the Marathon station at the corner of 10th and Water streets for 30 years, who woke up one morning to the smell of gasoline in his basement. A second story goes into the law and science.

Posted by Marcia Oddi on Sunday, December 19, 2010
Posted to Environment

Ind. Gov't. - "Sylvia A. Smith has worked at The Journal Gazette since 1973 and has covered Washington since 1989. She is the only Washington-based reporter who exclusively covers northeast Indiana."

But alas, no more.

Ms. Smith writes today at the end of her Sunday column:

After about 1,000 Sunday columns for The Journal Gazette over 22 years, I’m retiring from the paper and heading off for adventures in the world of editing. Thank you for the many years of feedback you have given me. You’ve offered me much to ponder, and I will miss your notes and e-mails – both the challenging variety and the generous, supportive ones.
Ron Shawgo of the Fort Wayne Journal Gazette writes today under the heading "JG’s Capitol Hill reporter retiring." From near the end of the long story:
Journalism’s watchdog role is diminished without a Washington presence, even with information overload in the Internet age, [Smith] said.

“What a journalist does in any area, but particularly in this area, is distill lots of information, synthesize lots of information, try to put it in a coherent package and not take all of your time doing it,” Smith said. “I don’t think a democracy can function without information about its government, but it’s unrealistic to think that citizens have enough time to adequately educate themselves to everything that’s going on.”

On a personal note, I will greatly miss Ms. Smith's reports.

And I admire her definition of "what a journalist does" so much that I am adopting it as the mission statement of the ILB:

"Distill lots of information, synthesize lots of information,
try to put it in a coherent package and
not take all of your time doing it."

Posted by Marcia Oddi on Sunday, December 19, 2010
Posted to Indiana Government

Courts - "SCOTUS Justices Offer Receptive Ear to Business Interests"

The Sunday NY Times has a major, front-page story today on the impact of business interests on the Roberts court: The percentage of business cases on the Supreme Court docket has grown, as has the percentage won by business interests.

Posted by Marcia Oddi on Sunday, December 19, 2010
Posted to Courts in general

Law - "Estate Tax Will Return Next Year, but Few Will Pay It"

From Paul Sullivan's Dec. 17th column in the NY Times:

Almost no one will have to worry about paying the estate tax under the tax legislation just approved by Congress. By one estimate, from Alan Rothschild, the chairman of the American Bar Association’s real property, trust and estate law section, less than one-half of 1 percent of people who die in 2011 will be hit by the estate tax. In contrast, 10.5 percent paid the estate tax in 1977.

And even for the very few who will be subject to the tax, the increase in the gift tax exemption will allow them to give their heirs tens of millions of dollars before the estate tax even comes into play. “I think people will be seizing the opportunity for next year,” said Carol Kroch, head of wealth and financial planning at Wilmington Trust.

The only caveat for the wealthy is that the tax compromise reached by Republican leaders and President Obama is set to expire in two years and revert to much lower exemption levels and a higher tax rate.

“It seems like to me we’re just setting ourselves up to repeat 2009 and 2010 all over again,” Mr. Rothschild said. “That’s the most frustrating part to me.”

Still, it has been something of a roller coaster of a year for the estate tax, which expired at the end of 2009 and, despite predictions, was never reinstated in 2010. So billionaires like Dan L. Duncan and George Steinbrenner died, and their wealth was not subject to an estate tax. And the not-so-wealthy fretted that the tax was going to hit more modest estates next year.

But that does not mean that wealthy people should ignore a host of short-term issues. Here are a few of the most important.

See the story for the details.

Posted by Marcia Oddi on Sunday, December 19, 2010
Posted to General Law Related

Saturday, December 18, 2010

Ind. Gov't. - More on "Commission will seek your help to draw maps: Citizens group to suggest changes in districts to lawmakers"; and some ILB observations

Following up on this ILB entry from yesterday, Mary Beth Schneider of the Indianapolis Star reports today on yesterday's redistricting seminar held at the Statehouse, featuring retired Justice Ted Boehm and several other speakers. The story concludes:

Lawmakers, using 2010 census data, must pass new legislative maps in the session that begins Jan. 5.
However, as the ILB pointed out yesterday, there is no requirement in the Indiana Constitution (or statutes) that the redistricting be done in the upcoming session. Instead, Article 4, Sec. 5 requires that "The General Assembly elected during the year in which a federal decennial census is taken" shall do the apportionment.

"The General Assembly" elected in 2010 took office on the day after the general election (Nov. 3, 2010) and continues until the general election two years hence. IC 2-2.1-1-1 provides:

(2) "Term of the general assembly" means that two (2) year period of time extending from the first Wednesday after the first Monday in November of any even-numbered year until, but not including, the first Wednesday after the first Monday in November of the next even-numbered year.

(3) "Session" refers to a regular session, regular technical session, or special session of the general assembly

(4) "Special session" means that period of time during which the general assembly is convened in session upon the proclamation and call of the governor under Article 4, Section 9 of the Constitution of the State of Indiana.

In other words, a term of the General Assembly consists of two regular sessions, and there is also a possibility of several "special" sessions. Although it may be desirable politically to establish the new districts as early as possible in the two year term so that candidates will know where they may be running, there is no requirement in the constitution or law that "Lawmakers, using 2010 census data, must pass new legislative maps in the session that begins Jan. 5." Rather, the redistrcting must be completed during the term of this General Assembly.

Posted by Marcia Oddi on Saturday, December 18, 2010
Posted to Indiana Government

Ind. Gov't. - "Former East Chicago Mayor Robert Pastrick filed for bankruptcy Friday"

Sarah Tompkins of the NWI Times reports today in a story that begins:

HAMMOND | Former East Chicago Mayor Robert Pastrick filed for bankruptcy Friday, potentially putting a hold on the state's attempts to collect a more than $100 million civil judgment against him for racketeering.

Pastrick, 83, collected votes for the 1999 Democratic mayoral primary in exchange for helping repair residents' sidewalks, driveways and porches, according to court records.

The judgment stems from a federal civil suit Indiana filed against Pastrick and others in 2004 to collect the government money spent in the so-called sidewalks-for-votes scheme.

Last week, the state filed a motion requesting that a judge allow state marshals to collect cash, jewelry, memorabilia and other items of value from Pastrick's Ogden Dunes home and Portage storage locker. The judge had not yet made a ruling on the motion when the bankruptcy filing was made.

"The commencement or continuation of any action or proceeding against Robert A. Pastrick, ... and any act to exercise control over or recover a claim against property of Robert A. Pastrick's bankruptcy estate, is automatically stayed," Pastrick's attorney, Gordon Gouveia wrote in a Friday court filing. "Any such action taken by a party without prior relief from the Bankruptcy Court is null and void."

Indiana Attorney General Greg Zoeller disagreed, describing the filing as a "stalling tactic." Zoeller said the racketeering judgment should not be discharged.

"The filing for bankruptcy is symbolic of a lack of accountability and one more attempt to avoid his responsibility to the citizens of East Chicago," Zoeller said. "Former Mayor Pastrick has never been held accountable for running the East Chicago municipal government as a corrupt enterprise, which was what the federal court found."

Posted by Marcia Oddi on Saturday, December 18, 2010
Posted to Indiana Government

Ind. Law - More on "Zoeller seeks forfeiture law rewrite"

Updating this ILB entry from Nov. 30th, Heather Gillers writes today in a long story in the Indianapolis Star that begins:

Indiana's vague and much-disputed forfeiture law promises both police and schoolchildren a cut of the money the state seizes from criminals. Now, the state's top education official and the state's top law enforcement official say they will work together to clarify the law and share the funds.

Attorney General Greg Zoeller and State Superintendent of Public Instruction Tony Bennett told The Indianapolis Star they have met and informally discussed potential revisions to the state's forfeiture law.

The timing is not coincidental: Lawmakers say they plan to rewrite the law in the coming legislative session in the wake of harsh criticism from a judge over the vagueness of the law; a lawsuit filed against county prosecutors across the state that accuses them of keeping money that should go to a state education fund; and a Star investigation that revealed many prosecutors don't even attempt to account for the money and that only five prosecutors have passed along forfeiture proceeds to the education fund in the past three years.

Posted by Marcia Oddi on Saturday, December 18, 2010
Posted to Indiana Law

Environment - "Fertilizer handlers need certification"

The Brazil Times reported Dec. 16th:

WEST LAFAYETTE, Ind. -- Those hired to apply, handle or transport fertilizer for agriculture purposes within Indiana must become certified through the Office of the Indiana State Chemist and Seed Commissioner by Jan. 1, 2012.

The new rule also requires certification for anyone applying manure from confined feeding operations. * * *

A state law passed by the Indiana General Assembly in 2009 created the rule that mandated the certification, known as Category 14, said Leo Reed, the OISC's manager of certification and licensing.

"This rule is designed to give fertilizer and manure applicators the opportunity to demonstrate their competence in handling and applying these materials, in a manner to protect the waters of the state and the environment in general," Reed said.

The rule covers "fertilizer material," defined as both commercial fertilizer and manure from confined feeding operations.

Posted by Marcia Oddi on Saturday, December 18, 2010
Posted to Environment

Ind. Gov't. - Still more on "Brizzi spokesman quits after DUI arrest"

Updating this ILB entry from April 21, 2010, the Indianapolis Star reports today:

The former spokesman for Marion County Prosecutor Carl Brizzi will spend Christmas behind bars after a Hamilton County judge rejected a second proposed plea deal and sentenced him to jail.

Mario Massillamany, 33, is serving 32 days of a 60-day sentence in the Hamilton County Jail after pleading guilty to drunken driving charges. He's slated to be released Jan. 14.

Posted by Marcia Oddi on Saturday, December 18, 2010
Posted to Indiana Courts

Ind. Courts - "Allen County Prosecutor Karen Richards said her office will not assist the proposed Fort Wayne city court, limiting the types of offenses that could be tried there"

Adding to the growing list of ILB entries on city and town courts (the most recent of which was Dec. 14th), Benjamin Lanka of the Fort Wayne Journal Gazette reports this morning under the headline "Richards puts foot down on city court idea." Some quotes:

In an e-mail sent to City Council members this week, Richards outlined her reasons for opposing the creation of a city court. In it, she said she will not allow misdemeanors or state infractions to be tried at the court – essentially leaving city ordinance violations as the only matters to be tried.

“Given that my office is directly affected by this ordinance, I wish someone would have contacted me before it was drafted,” she wrote. “There are so many things to consider here, this last-minute rush to review this ordinance does not seem to serve the community very well.”

On Tuesday, the council introduced the bill creating the court and scheduled a special meeting for Dec. 28 to discuss it. The bill must be approved this year so a judge can be elected in 2011, then the court can begin in 2012.

Deputy Mayor Beth Malloy previously said the court would be a way for the city to generate more revenue, noting New Haven’s court brings in $2 million a year, while Fort Wayne receives only about $500,000 from its ordinance violations. * * *

Richards said in her e-mail that an attorney from her staff is needed to prosecute misdemeanors such as drunken driving or violations of state statutes, such as speeding and running a stop sign. Because a city court is not an official court of record – cases can be appealed for an entirely new trial at Superior Court – it would not be a good use of her resources to prosecute cases in Fort Wayne court when the county court is a few blocks away, she said.

The prosecutor said she has allowed some infractions to be filed in New Haven as a courtesy to state and county police because of its proximity to where they are working. The same offer will not be extended to the Fort Wayne court.

“By way of this e-mail, I am advising the Chief of Police that he does not have my authority to file infractions in city court and that all infractions must be filed in Allen Superior Court,” she wrote.

This would leave city parking tickets, city speeding tickets or other city ordinance violations as the only cases that could go before the Fort Wayne court.

In 2009 there were 1,173 ordinance violations, 7,995 misdemeanors and 17,363 state infractions filed in Superior Court, according to Mike McAlexander, Allen County chief deputy prosecutor.

Richards said even some of the ordinance violations could cause problems because they could be tied to more serious charges, such as drunken driving and speeding. To avoid possible double-jeopardy claims, Richard said those cases would have to go, in their entirety, to Superior Court.

Posted by Marcia Oddi on Saturday, December 18, 2010
Posted to Indiana Courts

Ind. Gov't. - "Law would let cities declare bankruptcy"; and more from the ILB

Dan Carden of the NWI Times has this important story today -- some quotes:

INDIANAPOLIS | Broke local governments could ask for a state takeover and permission to declare bankruptcy under legislation pending in the Indiana General Assembly.

State Sen. Ed Charbonneau, R-Valparaiso, is sponsoring Senate Bill 105, which would repurpose the Indiana Distressed Unit Appeals Board [DUAB] from providing property tax cap relief to supervising direct management of a local government. * * *

The State Board of Accounts has said in recent audits of Gary and Lake Station it is concerned about the ability of both cities to "continue as a going concern," due to significantly reduced city revenues caused by property tax caps. * * *

[The long story describes the appointment of an emergency manager as a first step]

"This would put someone almost like an administrator in place that would try to take action to alleviate the situation short of filing for bankruptcy," Charbonneau said.

If the emergency manager could not turn the local government around, he or she then could recommend to DUAB that the local government be allowed to file for bankruptcy. DUAB would have to approve the filing for bankruptcy on behalf of a local government, or allow the local government to file for bankruptcy on its own.

Even if bankruptcy were declared, the emergency manager would remain in place until DUAB ruled the local government no longer was distressed, according to the proposal.

Indiana law currently does not permit local governments to seek federal Chapter 9 bankruptcy protection.

Charbonneau said the declining financial condition of cities and states across the country inspired him to devise a process for local governments in Indiana to seek a state takeover to fix their financial condition and, if necessary, declare bankruptcy.

He said the legislation is not intended to target a specific city or local government.

A sidebar to the story explains that "Senate Bill 105 establishes two routes for a local government to be designated a 'distressed unit.'."

SB 105 is not yet available to the public, but should be soon, at this link.

More from the ILB: In this May 1, 2010 ILB entry, Jon Seidel of the Gary Post Tribune wrote:

Gov. Mitch Daniels said Friday it might be time for Indiana to pass a municipal bankruptcy law in case Gary or another insolvent Hoosier city fails to prevent financial ruin in the future.

Such a law is a requirement for any city interested in pursuing bankruptcy, and he said it shouldn't harm Indiana's AAA credit rating, one of the best in the country.

Also relevant is this July 27, 2009 story from Herald J. Adams of the Louisville Courier Journal headed "Southern Indiana town may file for bankruptcy protection." Take a look. Here are a few quotes:
Facing a debt of $1.45 million over a long-delayed sewage plant project, the Floyd County town of Georgetown has taken the first step toward what would be an unprecedented move for an Indiana municipality — filing for bankruptcy protection.

Whether Georgetown could do that, however, is in dispute. State officials say Indiana law doesn't authorize a town to declare bankruptcy.

Georgetown's leaders “have no authority” to declare the town bankrupt, said Brian Bailey, general counsel for the Indiana Department of Local Government Finance.

Bailey cited a 1994 update to the federal bankruptcy code that says a municipality “must be specifically authorized” by state law to be a debtor, and no Indiana law does that. (Kentucky law authorizes its local governments to file for bankruptcy, but none have ever done so.)

Also of interest is this Feb. 18, 2005 story by Patrick Shea, a San Diego attorney, in the San Diego Union-Tribune, that sets out some of the favorables for going the bankruptcy route. Shea was involved in the famous Orange County bankruptcy case. The entire article is still available and worth reading. Here is Shea's list:

Posted by Marcia Oddi on Saturday, December 18, 2010
Posted to Indiana Government

Friday, December 17, 2010

Courts - "Sandra Day O'Connor Interviews John Paul Stevens"

Read it here, in Newsweek. At one point, Justice O'Connor says:

I was so stunned recently when I sat in the courtroom, and saw a woman on the far right end of the bench, one on the far left end, and one near the middle. That was pretty amazing.

Posted by Marcia Oddi on Friday, December 17, 2010
Posted to Courts in general

Ind. Decisions - Well, we have another opinion from the Supreme Court

In Sheehan Construction Company v. Continental Casualty, a 6-page, 5-0 opinion on a petition for rehearing, Justice Rucker writes:

Indiana Insurance seeks rehearing of this Court’s opinion in which we determined that damage caused by faulty workmanship may be covered under a standard Commercial General Liability (CGL) policy. See Sheehan Constr. Co. v. Cont’l Cas. Co., 935 N.E.2d 160 (Ind. 2010). More particularly, on a claim for indemnification made by Sheehan Construction Company and a Class of homeowners (hereafter “Sheehan”) against various insurance carriers including Indiana Insurance, the trial court entered summary judgment in favor of the insurance carriers. Among other things the trial court determined that under the terms of the CGL polices there was no “occurrence” or “property damage” and thus there was no coverage. Sheehan appealed and the Court of Appeals affirmed the judgment of the trial court. See Sheehan Constr. Co. v. Cont’l Cas. Co., 908 N.E.2d 305 (Ind. Ct. App. 2009). Because the Court of Appeals affirmed the trial court’s judgment on the issue of coverage, it did not address Indiana Insurance’s alternative argument that summary judgment should also be affirmed on grounds that Sheehan provided untimely notice of its claims. We granted transfer thereby vacating the Court of Appeals opinion, see Indiana Appellate Rule 58A, and reversed the judgment of the trial court. In so doing we addressed what we characterized as the “main issue” in the case, namely: “whether a standard commercial general liability (“CGL”) insurance policy covers an insured contractor for the faulty workmanship of its subcontractor.” Sheehan Constr. Co., 935 N.E.2d at 162. We did not address the timeliness of Sheehan’s notice. Indiana Insurance appropriately filed a petition for rehearing which we now grant so that this issue may be addressed. * * *

In this case Sheehan conceded it did not give Indiana Insurance timely notice of Sheehan’s claims under the CGL policy. Because prejudice to the insurer was therefore presumed, Indiana Insurance carried its initial burden of demonstrating it had no liability to Sheehan under the policy of insurance. Sheehan has not directed this Court to any evidence it presented to the trial court rebutting the presumption of prejudice. Thus the trial court properly granted summary judgment in favor Indiana Insurance on this point.

We grant rehearing and modify our original opinion as set forth herein. In all other respects the original opinion is affirmed.

Posted by Marcia Oddi on Friday, December 17, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues another awaited ruling

In Indiana High School Athletic Association v. Jasmine S. Watson, a case about which the ILB has had a long list of entries, the Court today issues this 20-page, 3-2 opinion, with Chief Justice Shepard writing for the majority:

Jasmine Watson transferred from Elkhart Memorial High School to South Bend Washington High School and sought an athletic transfer allowing her to participate on the basketball and track teams. The Indiana High School Athletic Association ('IHSAA") ruled her ineligible after determining she transferred for primarily athletic reasons.

Jasmine's mother sued on Jasmine's behalf and sought a preliminary injunction preventing the IHSAA from enforcing its ruling. The trial court held the IHSAA's decision was arbitrary and capricious, and it granted the injunction. We conclude the trial court improperly reweighed the evidence, and we therefore reverse. * * *

Sullivan, and David, JJ., concur.

Dickson, J., dissents with separate opinion in which Rucker, J., concurs. [that begins, at p. 17 of 20] The trial court in this case was convinced that the Indiana High School Athletic Association ("IHSAA") erroneously attempted to prohibit Jasmine Watson from participating in athletics during her senior year at South Bend Washington High School and that the IHSAA's decision was arbitrary and capricious. As a result Judge David Matsey, serving as a special judge brought in from outside St. Joseph County, enjoined enforcement of the IHSAA decision in a comprehensive, 47-page decision that included 151 detailed findings of fact and 26 conclusions of law. The Court of Appeals agreed and affirmed, emphasizing that there was "no evidence in the record whatsoever that Jasmine violated any IHSAA eligibility rules." Ind. High Sch. Athletic Ass'n, Inc. v. Watson, 913 N.E.2d 741, 757 (Ind. Ct. App. 2009). Undaunted, the IHSAA sought transfer to this Court. In the meantime, Jasmine completed her senior year at Washington High School and graduated. And after the Court of Appeals decision and the filing of the IHSAA's transfer petition, the Indiana General Assembly enacted legislation requiring that in the future such disputes be submitted to an independent, outside review panel with enhanced powers to reverse, modify, or affirm IHSAA rulings. The new legislation effectively removes from the IHSAA the ultimate interpretation and application of IHSAA rules affecting a student's athletic eligibility. Because Jasmine has graduated and the procedure for review of IHSAA decisions has been altered by statute for all future cases, this appeal is moot and thus should be dismissed.

Posted by Marcia Oddi on Friday, December 17, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - "After Iowa Judicial Ouster, a New Move to Bounce Other Justices"

Ashby Jones has the report in the WSJ Law Blog:

Apparently the ouster of the trio wasn’t enough for some new members of the Iowa House. Three freshman Republican members are drafting legislation that would begin the process of impeachment for the remaining four justices on the state Supreme Court.
Here is a list of ILB entries on the Iowa Supreme Court.

ILB: Do we have impeachment in Indiana? Yes, I was surprised to find, our Indiana Constitution mentions impeachment in three places:

Article 6. Administrative

Section 7. All State officers shall, for crime, incapacity, or negligence, be liable to be removed from office, either by impeachment by the House of Representatives, to be tried by the Senate, or by a joint resolution of the General Assembly; two-thirds of the members elected to each branch voting, in either case, therefor.

Section 8. All State, county, township, and town officers, may be impeached, or removed from office, in such manner as may be prescribed by law.

Article 5. Executive

Section 17. The Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment, subject to such regulations as may be provided by law. * * *

Posted by Marcia Oddi on Friday, December 17, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 8 today (and 13 NFP)

For publication opinions today (8):

In Harold J. Klinker v. First Merchants Bank, N.A. , a 10-page opinion, Judge May writes:

Harold J. Klinker1 (Klinker) appeals summary judgment for First Merchants Bank, N.A. (Bank). Klinker raises multiple issues, but we address only two: 1. Did the trial court err when excluding Klinker's affidavit? 2. Was summary judgment for Bank appropriate?
The trial court should have considered Klinker's affidavit in opposition to Bank's summary judgment motion, but summary judgment for Bank nevertheless was appropriate. We accordingly affirm. * * *

The trial court erred in excluding Klinker's affidavit, but summary judgment was proper because even with Klinker's affidavit, there was no genuine issue of material fact.

In Office of the Trustee of Wayne Township v. Deborah Brooks , a 7-page opinion, Judge May writes:
The Wayne Township Trustee appeals a preliminary injunction directing it to continue providing poor relief to Deborah Brooks. As the trial court applied the correct standard of review and the evidence supports its decision, we affirm.
In Tara Simpson, et al. v. OP Property Management, LLC, et al. , a 12-page opinion, Judge Crone writes:
On a winter morning, Tara Simpson slid down a hill and collided with another vehicle that was turned the wrong way in her lane. While she was still in her car at the scene of the accident, a school bus driven by Barry Matesick, an employee of the Metropolitan School District of Wayne Township (“the School District”), also slid down the hill and collided with Simpson. Simpson sued Matesick and the School District (collectively “Appellees”). Appellees moved for summary judgment, arguing that Simpson’s notice of tort claim did not properly notify them of her claim that Matesick negligently operated the bus, that they were entitled to sovereign immunity under a provision conferring immunity for losses caused by a temporary weather condition, that there was no evidence that Matesick was negligent, and that even if he was negligent, Simpson was contributorily negligent or incurred the risk. We conclude that Simpson’s notice of tort claim was sufficient and that Appellees are not entitled to immunity. Further, we conclude that there are genuine issues of material fact as to whether Appellees were negligent and whether Simpson was contributorily negligent or incurred the risk. Therefore, we reverse and remand for further proceedings.
In Kelly Brockmann v. Robert Brockmann, an 11-page opinion, Judge Barnes concludes:
In sum, although we recognize a general policy in Indiana towards favoring arbitration, we will not construe an arbitration agreement to apply to matters not clearly delineated by the agreement. See Showboat Marina Casino, 790 N.E.2d at 598. The agreement here did not clearly state that it was to apply to Father's petition to modify legal custody, or that it was to apply to any possible dispute that might arise between the parties for an indefinite period of time. The trial court erred in concluding otherwise.

We reverse the trial court's order compelling the parties to submit the matter of Father's petition for modification of custody to arbitration, and remand for further proceedings consistent with this opinion.

In Edward Dawson v. State of Indiana , a 9-page opinion, Judge Bailey writes:
Edward Dawson appeals the sanction imposed following the revocation of his probation; the State cross-appeals on jurisdictional grounds.
We dismiss.

The dispositive issue is whether the trial court erred when it granted Dawson leave to file a belated notice of appeal of the probation revocation order. * * *

While we are aware of the need for clarification and welcome such, we do not believe the current rendering of the Post-Conviction Rule 2 encompasses probation revocation orders. Accordingly, we must conclude that Post-Conviction Rule 2 is available for direct appeals of convictions and sentences only and not for belated appeals of probation revocation orders. Because this matter is not properly before us due to the lack of a timely notice of appeal, we decline to consider the appeal.

Charles Saffold v. State of Indiana - "Nor, under the unusual circumstances of Saffold’s case, can we say it was a violation for the officer to conduct a second pat-down search to determine whether Saffold had a gun after discovering ammunition on Saffold and in his vehicle.

"We affirm the trial court’s evidentiary rulings and denial of Saffold’s motion to dismiss the charge of carrying a handgun without a license. As he asserts no other trial court error, we affirm the judgment as well."

Thomas W. Conrad v. State of Indiana - "The trial court did not err in excluding evidence of Conrad’s victim’s past sexual conduct under Evidence Rules 412 and 403. Conrad’s rights under the United States and Indiana Constitutions to effectively impeach and cross-examine witnesses were also not infringed upon by the trial court’s rulings."

In Quintez Deloney v. State of Indiana , a 14-page opinion, Judge May writes:

DNA evidence is admissible in Indiana when the DNA analysis indicates a defendant's profile is consistent with DNA found at the crime scene because such evidence has high probative value. See, e.g., Smith v. State, 702 N.E.2d 668 (Ind. 1998). However, we have not addressed the admissibility of DNA evidence when – as in this case – a defendant could not be excluded from a possibly infinite number of people matching the crime-scene DNA and the DNA expert cannot offer a statistical probability whether the crime scene DNA came from the defendant. We therefore look to decisions from our sister states for guidance regarding the admissibility of DNA evidence in this circumstance.* * *

In the instant case, Winters was unable to exclude Deloney as a contributor to the DNA profile on the hat, and she was unable to give any statistical analysis of the probability of a match. Therefore, her testimony could not assist the jury in understanding the evidence or make the existence of some fact more probable or less probable. See Tester, 869 A.2d at 907. Thus, the DNA evidence and Winters' testimony lacked relevancy and should not have been admitted by the trial court. * * *

We hold the trial court abused its discretion in its admission of the DNA evidence, but the error was harmless because there was substantial independent evidence supporting Deloney's conviction.

NFP civil opinions today (1):

Term. of the Parent-Child Rel. of S.W., et al.; M.C. v. I.D.C.S. (NFP)

NFP criminal opinions today (12):

John Eric Warren v. State of Indiana (NFP)

Tyree L. Thomas v. State of Indiana (NFP)

Judd Ponsler v. State of Indiana (NFP)

Rodney Waye v. State of Indiana (NFP)

Doris Coffman v. State of Indiana (NFP)

Michael A. Gilbert v. State of Indiana (NFP)

James R. Robison v. State of Indiana (NFP)

Darren R. Locke v. State of Indiana (NFP)

Jason L. Hatchett v. State of Indiana (NFP)

Martie Allen Henderson v. State of Indiana (NFP)

Donald Davis v. State of Indiana (NFP)

Saul R. Cruz v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 17, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides 2 Indiana cases today

In U.S. v. Tanner (ND Ind., Lozano), a 33-page opinion, Judge Hamilton writes:

Appellant Charles Tanner abandoned a promising career in boxing to become a major player in a conspiracy to distribute large amounts of cocaine. Like many other drug dealers, Tanner was caught when his co-conspirators turned on him in an attempt to reduce their own prison time. After a jury convicted him for his role in the conspiracy, Tanner was sentenced to life in prison, in large part because of the significant amount of cocaine he helped distribute. On appeal Tanner argues that the prosecutor violated his Fifth Amendment privilege against self-incrimination by pointing out in closing arguments defense counsel’s failure to rebut the government’s case. Tanner also argues that the district court improperly admitted certain evidence against him and instructed the jury improperly. Tanner further asserts that the district court miscalculated his advisory sentencing guideline range and that life imprisonment is unreasonable.

None of Tanner’s arguments warrant reversal of his conviction or his sentence. A number of individuals other than Tanner could have been in a position to rebut the government’s case, so we find no error in the prosecutor’s closing argument. Except for certain testimony regarding Tanner’s possession of a firearm on one occasion, all of the complained-of evidence was clearly admissible. The one exception was harmless. As for the jury instructions, the district court’s only error was in giving an “ostrich” instruction lacking sufficient factual support in the trial record. That error was also harmless. The district court properly calculated Tanner’s sentence, and a life sentence was reasonable under these circumstances. Accordingly, we affirm.

In Karl Schmidt Unisia, Inc. v. Internation Union (ND Ind., Van Bokkelen), a 13-page opinion, Judge Kanne concludes:
The CBA’s arbitration clause creates a presumption that the Union’s grievance is arbitrable. Because the CBA does not expressly exclude the grievance from arbitration and the Company has not shown most forceful evidence of the parties’ intent to exclude the grievance from arbitration, the Company has not rebutted the presumption of arbitrability. Therefore, we AFFIRM the district court’s grant of summary judgment in favor of the Union, Jenkins, and Smith.

Posted by Marcia Oddi on Friday, December 17, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Commission will seek your help to draw maps: Citizens group to suggest changes in districts to lawmakers"; and some ILB observations

Mary Beth Schneider of the Indianapolis Star has a long story today on redistricting. Some quotes:

Legislators and citizens say there has to be a better way to divide Indiana's legislative districts without splitting communities and confusing voters about who represents them in the Statehouse and Congress.

Republicans, by gaining control of the House and Senate in the November elections, won the once-every-10-years right to draw new district maps for the legislature and Congress, based on the 2010 Census, during the General Assembly that begins Jan. 5. Indiana is expected to keep the same number of seats in Congress.

House Speaker Brian Bosma, R-Indianapolis, and Senate President Pro Tempore David Long, R-Fort Wayne, pledge to draw fair maps with logically shaped districts that keep communities intact whenever possible and respect minority voting rights.

A new citizens group plans to make sure they deliver.

A coalition of groups, led by two former legislators, say they want to give the public the tools and information needed to draw their own legislative maps. An Indiana Citizens Redistricting Commission, being formed with nine to 11 Hoosiers, will choose the two or three best and give them to the General Assembly for consideration.

At best, the groups say, it will influence the decisions lawmakers reach by drawing maps that benefit voters and not the political parties.

At worst, group leaders say, they'll expose any gerrymandering by showing how the maps might have been drawn.

Julia Vaughn, policy director for Common Cause/Indiana, which is organizing the effort along with the League of Women Voters and AARP, said the group had wanted the legislature to hand over redistricting to an independent commission. Republicans pushed bills to do that in 2006 and last year, but the effort fizzled.

While the group still hopes lawmakers will join the 13 states that have created commissions to draw the maps, this shadow commission, Vaughn said, could be the next-best thing.

The commission will have a seminar from 11 a.m. to 1 p.m. today in the Statehouse Senate chambers to start educating the public on what's at stake and the impact political gerrymandering has on elections and government.

Here is more on the seminar. Unfortunately, it doesn't appear that it will be webcast.

ILB Observations: Here is what the Indiana Constitution, Article 4, Sec. 5, provides:

Section 5. The General Assembly elected during the year in which a federal decennial census is taken shall fix by law the number of Senators and Representatives and apportion them among districts according to the number of inhabitants in each district, as revealed by that federal decennial census. The territory in each district shall be contiguous.
(History: As amended March 14, 1881; November 6, 1984).
Okay, the "The General Assembly elected during the year in which a federal decennial census is taken" would be 2010. This General Assembly will serve for two years before half the Senators and all the Representatives are up for election again, in 2012.

So this means they have two years to draw the maps, this coming 2011 session, and the 2012 session. And it doesn't have to be done in a regular session, the bills setting out the districts may be passed in a special session.

For instance, in 1991 the redistricting bill didn't pass until the second special session. The ACTS of 1991 (2nd SS), PL 240 is titled "AN ACT concerning the performance of certain constitutional duties of the general assembly including appropriation, redistricting, and state and local administration relating to appropriations."

In 2001 a special session wasn't necessary, redistricting is set out in PL 212-2001 from the regular session.

Another piece of information to keep in mind is that the SCOTUS in 2006 approved mid-decade redistricting in certain cases. Here is a quote from Linda Greenhouse, then of the NY Times, in a July 1, 2006 ILB entry:

The ruling [in LULAC v. Perry] also cleared the way for other states to join Texas in adopting the approach that was challenged in the case: setting aside the tradition of redrawing Congressional districts only after the once-a-decade census, instead using a change of political control in the state governments as reason to reshape their maps. But there was no indication that there would be any rush to do so.

Posted by Marcia Oddi on Friday, December 17, 2010
Posted to Indiana Government

Ind. Decisions - More on "Judge removes Bren Simon as trustee over late husband's estate"

Updating yesterday's ILB entry, Jeff Swiatek has this report in this morning's Indianapolis Star. Some quotes:

A Hamilton County judge has ousted Bren Simon as overseer of her late husband Melvin Simon's $1.8 billion estate even as her attorneys try to remove him as judge in the Simon will dispute.

"Significant grounds" exist to remove Bren Simon as trustee and personal representative, including taking $13 million from the estate without telling beneficiaries or getting their approval, said Superior Court Judge William J. Hughes.

The judge also faulted her for not getting required court approval to pay estate attorneys more than $3 million in fees, and for failing to file any interim reports about when the estate will be closed, as required by law.

"The record . . . is replete with examples of conduct by Bren Simon justifying her removal," the judge wrote in his five-page ruling, issued late Wednesday.

Posted by Marcia Oddi on Friday, December 17, 2010
Posted to Ind. Trial Ct. Decisions

Thursday, December 16, 2010

Ind. Decisions - Supreme Court decides one today

In Adoption of L.D.; A.B. and N.E. v. Jo.D. and Ja.D., an 8-page, 5-0 opinion, Justice Sullivan writes:

A court approved a child’s paternal grandparents’ request to adopt the child without the child’s mother’s knowledge. Although the paternal grandparents did publish notice, they did not perform a diligent search reasonably calculated to determine the mother’s whereabouts before doing so. As such, the mother did not receive the notice of the adoption proceedings required by law. * * *

The cases make clear that service by publication is inadequate when a diligent effort has not been made to ascertain a party’s whereabouts. * * *

Under the facts of this case, we simply cannot conclude that Paternal Grandparents and their lawyer performed the diligent search required by the Due Process Clause. Here, although Paternal Grandparents had successfully given notice to Mother at N.E.’s address on previous occasions, they made no attempt to do so here. Viewing the evidence most favorably to them, they made only the most obtuse and ambiguous attempt to ask N.E. about Mother’s whereabouts. They affirmatively concealed from N.E. the very fact that they were filing an adoption petition even though the most minimal diligence to find Mother would have involved N.E. One need look no further than the fact that N.E. and Mother filed their motion in court less than two weeks after Paternal Grandparents told N.E. that the adoption had been granted to see how little effort would have been required for Paternal Grandparents to find Mother had they involved N.E.

Because Paternal Grandparents and their counsel failed to perform the diligent search for Mother required by the Due Process Clause, notice and service of process by publication was insufficient to confer personal jurisdiction over Mother. Accordingly, we return this case to the trial court with directions to grant Mother’s Trial Rule 60(B) motion, thereby vacating the adoption decree.

ILB readers may remember this case from when it was argued, on August 26, 2010. See this ILB entry re the argument, headed "Is notice by publication in the Indianapolis Recorder sufficient?"

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Prosecutor won't file sex assault charges against Notre Dame player"

Updating this ILB entry from earlier this afternoon, Jeff Parrott of the South Bend Tribune is now reporting that:

St. Joseph County Prosecutor Michael Dvorak today announced he won't file charges in connection with sexual assault allegations that a late St. Mary's College student made against a University of Notre Dame athlete. * * *

Dvorak said Seeberg alleged that the player touched her breasts, which prosecutors were investigating as a potential sexual battery charge. But Dvorak determined he wouldn't be able to prove this in court because Seeberg and the player were the only witnesses, and Seeberg is no longer living. * * *

Dvorak also decided not to file charges connected to an allegation Seeberg made that another Notre Dame student who was a friend of the player harassed her with text messages after she made the sexual assault report.

"The content of the text messages does not rise to the level of a criminal act as defined by Indiana's harassment statute," Dvorak said in a written statement. "The student subjectively believed Ms. Seeberg's complaint was false and therefore he had a legitimate purpose for his text messages."

The prosecutor did not identify the player or the player's friend because they have not been charged with a crime.

Here is the newest Chicago Tribune story, by Stacy St. Clair and Todd Lighty. Some quotes:
St. Joseph County Prosecutor Michael Dvorak said his office spent a month reviewing the case and had met with Seeberg's parents before reaching a decision. The office looked at case law surrounding the admissibility of hearsay evidence before declining to press charges, Dvorak said.

The prosecutor's office also conducted a review of the evidence surrounding the text message sent to Seeberg.

"Our review of these two criminal allegations and our decision not to prosecute either of them is based upon the evidence as well as the likelihood that Ms. Seeberg's statements -- as a consequence of her untimely death on September 10, 2010 -- would be found inadmissible in a court of law," he said in a statement. * * *

Lizzy Seeberg reported a sexual battery to Notre Dame security police on Sept. 1, a day after the incident in the player's room. Dvorak said the complaint alleged that the athlete touched her breasts.

A day later, she received a text message from the phone of a friend of the player, asking what happened. "Its not your business, sry," Seeberg replied, according to her cell phone records.

A few minutes later, a response came. "Don't do anything you would regret," the text said. "Messing with notre dame football is a bad idea."

In a statement released late this morning, Dvorak said the text message did not rise to the level of a criminal act under Indiana law.

"The student subjectively believed Ms. Seeberg's complaint was false and therefore he had a legitimate purpose for his text messages," he said.

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Indiana Courts

Courts "Mississippi considers pro bono mandate for lawyers"

David Harrison, Stateline staff writer, has this long story that begins:

For every client helped by a Mississippi legal aid office, another is turned away for lack of resources. And for every client who walks in the door of one of these offices, many more are entitled to help but don’t seek it. Faced with these grim statistics, Mississippi’s Supreme Court is considering a radical solution: requiring attorneys in private firms to perform volunteer work or pay a fee.

Part of the state Supreme Court’s formal mission is to make sure residents have proper access to the justice system. But funding for indigent legal services is tight and the recession has brought a flood of pleas for legal help. If adopted, the proposal would make Mississippi the first state to mandate that lawyers perform what until now has been volunteer work. A committee of the court is studying the idea, after which it could be presented to the full court. There is no timetable guiding the committee’s work.

The rule change would apply mostly in civil cases. In criminal cases, defendants have a constitutional right to an attorney, and courts in Mississippi and other states routinely appoint lawyers and offer them a modest compensation to represent indigent criminal defendants.

Under the current proposal, about 6,000 of the state’s roughly 8,500 lawyers would have to do 20 hours of pro bono legal work a year or pay a $500 fee. Lawyers who work in specialized parts of the law or lawyers who work for the court system, the government or legal aid offices would be exempt from the requirement. A recent public comment period on the idea drew over 100 responses, many of them opposed. But Justice Jess Dickinson of the Mississippi Supreme Court says there are few alternatives. “This is not just some power grab by the court to force lawyers to do something,” he says. “We’re desperately struggling to find some way to address this huge problem.”

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Courts in general

Ind. Law - More on "Notre Dame's inquiry of alleged sex attack upsets parents of girl who accused athlete, killed herself"

Updating this morning's ILB entry, the South Bend Tribune has now posted a response from Notre Dame, prefaced by:

The University of Notre Dame released the following letter to WSBT-TV and the South Bend Tribune as its official statement regarding the latest Chicago Tribune story on the Seeberg case. The letter was first distributed to university faculty, staff and students.

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Indiana Law

Ind. Courts - Supreme Court hears oral argument in Brunner appeal

Re the oral argument this morning at 10:30 AM before the Supreme Court in the case of Jeffrey Brunner v. State of Indiana (see ILB "Upcoming" entry here), a reader sends this note:

Justice David's comment in the Brunner argument (at 21:30) regarding the ability of trial judges to change a D felony conviction to an A misdemeanor several years after sentencing: "I would have loved to have done this over the course of the last sixteen years. I didn't think I had the authority."

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Indiana Courts

Ind. Courts - "Manchester May Nix Town Court"

Yesterday the ILB had this entry, headed "Fremont To Fight State Efforts To Change Town Courts." Today this report by Brittney Elkins of the Kosciusko County Times-Union:

NORTH MANCHESTER - North Manchester's town court may be entering its final year.

The North Manchester Town Council has reviewed the costs versus the benefits of having a town court.

Attorney Matt Mize told the council Wednesday that, according to a current ordinance, the vote to abolish the town court would have to be done in 2010, or it would have to wait until the end of another four-year term.

Mize told the board that if they decide to do away with the town court, Town Judge Cheryl Gohman would finish out her term and the court would be abolished Dec. 31, 2011.

The board determined the cost of running the court exceeds the benefits of having it. The number of people who use the court has been on a decline. Many violations, such as seatbelts tickets, go to the county court in Wabash.

When asked for input, Town Marshal Jeffrey Perry said, "It's been a convenience for the two retirement communities in town, but otherwise I'd support taking everything through the county."

A proposed ordinance to abolish North Manchester's town court was read at the meeting. The board will meet again Wednesday at 2:15 p.m., at which point they will read the ordinance again. The board will vote on the ordinance at that meeting if there are no changes that need to be made.

The end of this entry on a possible Fort Wayne city court also talked about the need to act before the conclusion of this year.

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Indiana Courts

Ind. Courts - Supreme Court hears oral argument in Desmond Turner appeal

Oral argument was heard this morning at 9:00 AM before the Indiana Supreme Court in the case of Desmond Turner v. State of Indiana. In this direct appeal of the convictions, Turner argues the trial court erred in admitting certain evidence and that the evidence is insufficient to sustain the convictions.

Carrie Ritchie of the Indianapolis Star reports:

Desmond Turner, the suspected [ILB - sic] shooter in the June 2006 Hamilton Avenue slayings, has asked the court to throw out his conviction and lifetime prison sentence, claiming there were problems with his bench trial, including a lack of evidence to link him to the crime. * * *

Much of the questioning focused on marks on the bullets found at the crime scene and at the apartment where Turner was staying after the shootings. An expert testified during Turner's trial that the marks on the bullets show that they must've come from the same weapon, but Brent Westerfeld, Turner's attorney, argued today that the expert's logic was flawed because science hasn't shown that marks on bullets conclusively prove that they were fired from the same weapon.

The state also had no physical evidence, such as DNA, and the murder weapon has never been found.

Deanna Dewberry of WishTV reports:
The main issue was the science and methodology used to connect a bullet found in the home of Turner's girlfriend to spent casings found at the crime scene. The state argued that scratches on the bullet matched those on the shell casings at the murder scene. The defense argued the science used to match those scratches is untested, and was simply speculation by the prosecution’s expert witness.

Kelly Miklos, one of a team of attorneys from the Indiana Attorney General's office, faced tough questions regarding the methodology used to connect the bullet and casings from Justices Frank Sullivan and Justice Robert Rucker. At one point, Justice Sullivan said frankly, "I just don't see the science."

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 6 today (and 6 NFP)

For publication opinions today (6):

In William Hurst v. State of Indiana , an 11-page opinion, Judge Najam concludes:

In sum, an eleven-year-old child reported to her father the presence of marijuana in the home she shared with her mother and her mother's boyfriend, Hurst. The father relayed that report to IMPD. An officer was dispatched to check on the welfare of the child and met Father in front of Mother's apartment. There, the officer viewed the texted photograph that the eleven-year-old had sent to her father's phone. And a detective also viewed the photograph on the phone at the scene and confirmed that it appeared to show marijuana.

This is not a case where the affiant relied only upon the opinion of an eleven-year-old child that there was marijuana present in her home. The texted photograph viewed by the officers corroborated Thomas' report, and it is a reasonable inference that the date and time information on Thomas' cell phone indicated that the picture had been taken recently. We also agree with the trial court's observation that children are likely to report suspicious activity to their parents and that parents in turn will transmit that information to law enforcement. Thus, we conclude that the photograph corroborated the hearsay. See Ind. Code §35-33-5-2(b). As such, when viewed from a totality of the circumstances, we conclude that there was sufficient evidence before the magistrate to support a finding of probable cause and that the trial court did not err when it denied Hurst's motion to suppress evidence obtained as a result of the execution of the search warrant.

In Anne W. Murphy, et al. v. Paul Terrell, et al. , a 15-page opinion, Judge Bradford writes:
Appellants/Defendants Anne W. Murphy, in her official capacity as Secretary of the Indiana Family and Social Services Administration and Patricia Casanova, in her official capacity as the Director of the Office of Medicaid Policy and Planning of the Indiana Family and Social Services Administration (collectively referred to as “the State”) appeal the trial court's order granting summary judgment in favor of Appellee/Plaintiff Paul Terrell, on behalf of himself and a Class of those similarly situated (collectively referred to as “the Class”). Concluding that under the facts and circumstances presented in the instant matter, unsuccessful applicants for Medicaid disability benefits do not have a constitutional right to an in-person administrative hearing, we reverse and remand this matter for the entry of summary judgment in favor of the State. * * *

Upon considering the relevant federal authorities together with the facts and circumstances presented in the instant matter, we conclude that telephonic hearings afford unsuccessful applicants with the opportunity to be heard in a reasonable manner, and, as a result, unsuccessful applicants for Medicaid disability benefits do not have a constitutional right to an in-person administrative hearing.

ILB: For background on Terrell, see this April 1, 2010 ILB entry.

In St. Mary Medical Center v. Marsha Bakewell , a 4-page opinion, Judge Bradford writes:

St. Mary contends that the trial court abused its discretion in granting Bakewell's motion to correct error because Bakewell's current claim actually sounds in medical malpractice and cannot therefore proceed under a theory of premises liability. * * *

We conclude that Bakewell's allegation may proceed under a premises liability theory, even though originally also pursued as a medical malpractice claim. As previously mentioned, Bakewell's contention is that St. Mary “carelessly, negligently, and recklessly maintained the premises by failing to install appropriate handrails and mats, and in failing to provide any warning to [Bakewell] of the dangerous and hazardous nature of said area, which it knew or should have known was dangerous and likely to cause injury[.]” This is about as clear and unambiguous an allegation of premises liability as one is likely to encounter: Bakewell claims that St. Mary's negligent maintenance of its facility–not a negligent failure to provide appropriate care–was the cause of her injuries.

In Lightpoint Impressions, LLC v. Metropolitan Dev. Comm., et al. , an 11-page opinion, Judge Bradford writes:
Appellant/Petitioner Lightpoint Impressions, LLP, appeals from the trial court’s grant of summary judgment in favor of Appellee/Respondent the Metropolitan Development Commission of Marion County (“the MDC”). Lightpoint contends that the MDC lacked jurisdiction to hear its appeal from the decision of the Lawrence Board of Zoning Appeals (“the Lawrence BZA”) and that, even if the MDC did have jurisdiction, the decision by the administrator of the MDC to appeal from the decision was arbitrary and capricious as a matter of law. As an initial matter, we conclude that the MDC may hear appeals from decisions of the Lawrence BZA as a matter of law. We further conclude, however, that the record does not clearly establish that the MDC has issued a final appealable decision in this case, denying us and the trial court the power to address the merits of Lightpoint’s appeal. Even in the event that the MDC did issue a final decision, we conclude that the trial court has not, so far, employed the proper standard of review. Consequently, we affirm in part, reverse in part, and remand with instructions.
In City of Kokomo, et al. v. Florence Pogue, et al. , a 16-page opinion in an interlocutory appeal, Judge Barnes writes:
The City of Kokomo and the Kokomo Common Council (collectively “Kokomo”) appeal the trial court's denial of its motion to dismiss a remonstrance petition filed by a group of landowners whose land Kokomo wishes to annex (collectively “the Remonstrators”). We reverse.

The sole restated issue is whether the trial court properly rejected Kokomo's assertion that a substantial number of landowners who signed the remonstrance petition had waived their ability to challenge the annexation, thus bringing the total number of remonstrators below the statutory minimum required to pursue a remonstrance. * * *

It seems apparent that the legislature requires notices of annexation to be sent by certified mail in order to provide additional assurance that such notices would be delivered to the intended recipients. Kokomo used a method of mail delivery that, according to Stanahan, approximates or even exceeds such assurance. That the USPS offers alternatives to certified mail delivery, and that the legislature failed to explicitly recognize such alternative methods, does not render Kokomo's use of an alternative method fatally flawed. The Remonstrators fail to explain how use of this method caused them any harm or was such an egregious wrong that it violated their substantial rights. * * *

We now turn to the central question of whether the Remonstrators collected valid signatures from the owners of sixty-five percent of the parcels in the annexation territory. The starting point in our analysis is our supreme court's decision in Doan v. City of Fort
Wayne
, 253 Ind. 131, 252 N.E.2d 415 (1969). In that case, Fort Wayne was attempting to annex land and claimed that a number of landowners had previously waived their right to remonstrate in various instruments associated with the extension of water service outside of the city's boundaries. Our supreme court concluded these waivers were invalid, holding that “the right to remonstrate does not vest before territory is sought to be annexed.” * * *

However, the Doan court expressly noted that legislation, then as now, permits the prospective waiver of remonstrance where the construction of sewage facilities is concerned. * * *

Kokomo was statutorily entitled to demand that anyone connecting to its sewer system waive their right to remonstrate against future annexation. See I.C. § 36-9-22-2(c). The language of the waivers in that regard is clear and unambiguous; that is, the signatories were clearly advised and had actual knowledge of the fact that they were waiving their right to remonstrate in exchange for connecting to the Kokomo sewer system.

Thus, the trial court erred in finding these waivers to be ineffective. Invalidation of these sixty-four signatures on the remonstrance petition, coupled with invalidation of Country's seventy-three signatures, causes the percentage of valid landowner signatures in the annexation area to fall to 64.3%. This is below the statutorily-mandated minimum percentage of landowner signatures needed to maintain a remonstrance. As such, the Remonstrators cannot proceed with their remonstrance against annexation by Kokomo.

The trial court erred in concluding that the Remonstrators obtained the required minimum number of signatures needed to maintain their action against annexation by Kokomo. We reverse the denial of Kokomo's motion to dismiss.

In R.D. v. Review Board , an 18-page, 2-1 opinion, Judge Mathias writes:
2
R.D. was laid off by his employer, losing his position as a machinist. Desiring to retrain by obtaining a degree in graphic arts, R.D. took advantage of the Trade Act of 1974 (“the Trade Act”), and applied to use Trade Adjustment Assistance funding established under the Trade Act to pay for retraining in a graphic arts program at the Art Institute of Indianapolis (“the Art Institute”). The Indiana Department of Workforce Development (“the Department”) is responsible to administer the funding available to Indiana residents under the Trade Act and in that capacity, the Department denied R.D.'s request based on its cost. During the administrative appeal of the Department's denial, the Department's director presented evidence that R.D. could enroll in a program at Ivy Tech at a cost of approximately $11,700, compared to the Art Institute's cost of more than $56,000. The Administrative Law Judge (“the ALJ”) hearing R.D.'s appeal found that the programs at issue were substantially similar and denied R.D.'s application to attend the Art Institute because of the cost difference. The Review Board affirmed the ALJ's denial of R.D.'s application.

R.D. appeals the Review Board's decision, arguing that the evidence established that the Ivy Tech program was not substantially similar to the Art Institute's program and was not suitable for his needs. Concluding that the Review Board erred when it denied R.D.'s application for training at the Art Institute, we reverse and remand for proceedings consistent with this opinion. * * *

NAJAM, J., concurs.
BAKER, C.J., dissents with opinion. [that concludes]When considering the purposes of the Trade Act, namely, to provide workers with training at the lowest reasonable cost that will lead to employment and result in training opportunities for the largest number of adversely affected workers, I cannot agree that R.D. has successfully demonstrated that the Review Board's decision was unreasonable in denying his application for funding to attend the Art Institute. See Quakenbush, 891 N.E.2d at 1054 (observing that our task is to determine whether the Review Board's decision is reasonable in light of its findings). In short, R.D.'s request for training at the Art Institute does not satisfy the “lowest cost” requirement of 20 C.F.R. section 617.22(a)(6). Thus, I would affirm the Review Board's decision.

NFP civil opinions today (1):

Term. of Parent-Child Rel. of K.R.; C.R. v. IDCS (NFP)

NFP criminal opinions today (5):

Joseph Prewitt v. State of Indiana (NFP)

Carlos Morales v. State of Indiana (NFP)

Byron Dixon v. State of Indiana (NFP)

Joseph Prewitt v. State of Indiana (NFP)

Terrence L. Oliver v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Bills drafts for implementing Criminal Code changes

Updating the earlier ILB entry about today's Criminal Code Evaluation Commission meeting, here are the bill drafts.

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Indiana Government

Ind. Decisions - "Judge removes Bren Simon as trustee over late husband's estate"

Cory Schouten is reporting in the IBJ in a long story that begins:

A Hamilton County judge has ordered Bren Simon removed as personal representative and interim trustee over her late husband's estate, replacing her with a retired justice of the Indiana Supreme Court.

The ruling by Superior Court Judge William J. Hughes represents a turning point in an ugly family squabble over Melvin Simon's more than $2 billion fortune. It's a big victory for Deborah Simon, one of Melvin's children from a previous marriage, who had argued Bren is unfit to serve as trustee.

"The record herein is replete with examples of conduct by Bren Simon justifying her removal in both capacities," Hughes wrote in the order entered Dec. 15. * * *

Hughes appointed former Indiana Supreme Court Justice Theodore R. Boehm, who retired earlier this year, to replace Bren as both trustee and Melvin's personal representative.

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Law - "Notre Dame's inquiry of alleged sex attack upsets parents of girl who accused athlete, killed herself"

The ILB has had earlier entries on this story. The most recent was Nov. 24, 2010.

Today, Chicago Tribune reporters Stacy St. Clair and Todd Lighty have a very long story in the South Bend Tribune about the inquiry. Here are a few quotes:

The parents of a Northbrook teenager who killed herself a week after accusing a University of Notre Dame football player of sexually attacking her say they feel betrayed by the school they love and that several generations of their family have attended.

Speaking publicly for the first time since their daughter's Sept. 10 death, Tom and Mary Seeberg suggest that the campus police conducted a superficial investigation of their daughter's allegations. They question why, according to a timeline they received from the university, it took police two weeks to interview the player — even after Elizabeth "Lizzy" Seeberg, 19, gave detailed statements and reported receiving a text message warning her about "messing with" the storied football program.

Concerned that the university's handling of reported sex crimes poses a public safety threat to women at Notre Dame and neighboring St. Mary's College, where their daughter was a freshman, the Seebergs decided to break their three-month silence. They say Notre Dame, a university named after the Virgin Mary, should be a leader in handling alleged crimes against women. * * *

The parents say their disappointment intensified recently when the university indicated it may not give them access to records related to their daughter's accusations. University officials also signaled they believe the Family Educational Rights and Privacy Act prevents them from sharing information about any internal disciplinary proceeding, though their daughter would be entitled to those details if she were alive. * * *

Notre Dame authorities have refused to publicly discuss what happened and how they handled Lizzy Seeberg's complaint.

In addition, on Dec. 10th the Indianapolis Star published a letter from Frank D. LoMonte, executive director of the Student Press Law Center in Arlington, Va. The headline: "Still in the dark at Notre Dame." Some quotes:
The tragic events leading up to Lizzy Seeberg's death are a matter of substantial public concern -- and had they happened anywhere other than the campus of a private college, the public would know far more. * * *

Notre Dame campus police have taken charge of investigating both the sexual assault allegation and Seeberg's death. But they have declined to release the detailed incident reports that police normally generate, containing the investigating officers' narrative description of their observations.

Incident reports are crucial to complete and accurate police reporting, and journalists routinely are able to review them at other police departments under the Indiana Access to Public Records Act. But the Notre Dame Security Police Department claims it is exempt from the act because Notre Dame is a private institution and not a government agency.

That explanation is far too simplistic. Notre Dame police may get their paychecks from a private entity, but in every other way they are state officials, exercising state power delegated to them by state law. * * *

Indiana state law ... grants police officers at private colleges "general police powers, including the power to arrest" and confers "the same common law and statutory powers, privileges and immunities as sheriffs and constables."

Based on these state-delegated powers, the Indiana Supreme Court ruled in 2003 that officers at private universities must abide by the same Fourth Amendment search-and-seizure constraints that apply to all other "state actors."

There is precedent for subjecting the records of private college police to public scrutiny. In 2008, Connecticut's Freedom of Information Commission ruled that the Yale University police department -- which is legally indistinguishable from Notre Dame's -- must disclose its incident reports just like any other law enforcement agency.

Virtually every state has declared police incident reports to be open records, because openness is essential to holding the justice system accountable and alerting the public to dangers. Had Seeberg alleged she was attacked at an off-campus apartment instead of a St. Mary's dorm, police unquestionably would have been obligated to promptly disclose how they handled the complaint.

There is no good reason that crimes committed at private colleges should be uniquely cloaked in secrecy.

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Indiana Law

Courts - New Hampshire swears in its first woman chief justice

This report today in the Concord Monitor, by Shira Schoenberg, begins:

Justice Linda Stewart Dalianis took the oath of office yesterday to become New Hampshire's 35th Supreme Court chief justice and the first woman to hold that title.

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Courts in general

Ind. Law - "Gov. Daniels would sign statewide smoking ban"

So Dan Carden reports today in the NWI Times:

Gov. Mitch Daniels is ready to sign a statewide smoking ban into law if the General Assembly sends it to him.

"I would definitely sign one and there seems to be growing momentum for one," Daniels said. * * *

The Republican governor said he hesitated initially at supporting the idea of a statewide ban rather than leaving the decision to local communities. But Daniels said towns and cities have shown it's possible to enact a smoking ban with significant benefits and minimal cost.

The Indiana Chamber of Commerce supports the smoking ban.

In prior years, the Indiana Senate has stopped smoking ban legislation by not even allowing a committee vote, let alone bringing the proposal before the full, Republican-controlled Senate.

Daniels said he'll urge Senate leaders to allow debate on a smoking ban.

"I'll sure talk to them about it. I think folks deserve to vote on this," Daniels said.

Illinois has had a statewide smoking ban in effect since 2008.

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Indiana Law

Ind. Gov't. - "JUSTICE REINVESTMENT IN INDIANA: Summary Report & Policy Framework"

Here is what looks to be the short version of the Pew Report.

Maureen Hayden of CNHI has this story today in the New Albany News & Tribune, headed "Governor, leading lawmakers pitch ‘smarter incarceration’ to control escalating prison costs." Some quotes:

The plan would return “proportionality” to sentencing and give judges more discretion over sentencing low-risk offenders to community-based programs — an option that legislators have taken away in some cases.

State Rep. Ralph Foley, R-Martinsville, said the Indiana General Assembly has engaged in “offense inflation” in recent years by creating more laws and imposing stiffer sentences without thought to fairness or long-term implications.

Foley and other legislative leaders said lawmakers too often felt pressured to take a “tough on crime” attitude — one that he said was captured on bumper stickers and poster boards, rather than evidence-based policy.

“Often the legislature acts in a reactive way,” Foley said.

“We’ve all been a party to it,” echoed State Rep. Eric Turner, R-Marion.

The result: Indiana’s prison population has grown by more than 40 percent in the last decade, three times faster than any neighboring state.

The prison population growth occurred primarily because more property and drug offenders were sentenced to prison. That’s costly, given that it takes about $21,000 a year to house an inmate in a state prison.

Those numbers are based on a comprehensive review of the state’s criminal code and sentencing policies conducted by the Pew Center on the States and the Council of State Governments (CSG) Justice Center.

And from Lesley Stedman Weidenbener's story today in the Louisville Courier Journal:
The full study with recommendations is to be released Thursday at a meeting of the General Assembly’s Criminal Code Evaluation Commission. But key legislative leaders already have seen the report and prepared bills they hope the commission will endorse at the meeting.

Senate Corrections, Criminal and Civil Matters Chairman Brent Steele, R-Bedford, said the legislation will provide local judges with more flexibility in sentencing while creating more “truth in sentencing” for serious offenders. However, he said the state would not eliminate its good-time credit rules that allow inmates to reduce how much time they spend behind bars.

“I think the citizens of Indiana are going to be well served by this,” Steele said. “They’ll for the first time have some reliability and something they can trust and understand when it comes to the sentencing of our most serious felons.” * * *

Indiana’s crime rate has declined slightly despite the growth in its prison population, according to the review by the Council of State Governments and Pew Center on the States. The growth occurred primarily because more property and drug offenders were sentenced to prison terms, according to the study.

Posted by Marcia Oddi on Thursday, December 16, 2010
Posted to Indiana Government

Wednesday, December 15, 2010

Ind. Courts - "Fremont To Fight State Efforts To Change Town Courts"

From WLKI this afternoon:

(FREMONT) - A possible effort in the General Assembly to change the operation of town courts around Indiana is being opposed by the town of Fremont.

Town Superintendent Chris Snyder said during Tuesday nights Town Council meeting that the Indiana Association of Cities and Towns support their position that the town courts should be left alone.

Fremont Town Judge Martha Hagerty pointed out that they have collected a gross amount of $1.8 million this year through the end of November. She also said since the Town Court was established in 1976, it has raised over $15 million for the state of Indiana.

The Town Court was established when the Justice of the Peace was abolished. The Court processes ordinance violations and infractions for the towns and lakes of Steuben County.

Here is a list of earlier ILB entries that include the phrase "town court".

Posted by Marcia Oddi on Wednesday, December 15, 2010
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues two opinions today

In Joshua G. Nicoson v. State of Indiana, a 10-page, 3-2 opinion, Chief Justice Shepard writes:

Appellant Joshua Nicoson committed confinement while armed with a deadly weapon, earning a class B felony conviction. The trial court added five years to the regular class B sentence, relying on a statute authorizing an additional term where the perpetrator "used" a firearm while committing the offense. We hold that adding these years is consistent both with the statutes in question and with the prohibition against double jeopardy. * * *

Here, the State initially needed to prove only that Nicoson committed confinement while armed with a deadly weapon. Ind. Code § 35-42-3-3. To apply the additional fixed five-year term the statute requires the State to prove Nicoson "used" a firearm in commission of his offense. Ind. Code § 35-50-2-11. The record clearly reveals that Nicoson was not only armed with a deadly weapon, but that he used the firearm—firing it into the air, ordering the victims from the vehicle with it, and firing at the victims‘ vehicle as they drove away.

In effect, Nicoson is contending that the State proved too much too soon. He has to mean that the legislative design seeks to impose a greater penalty on a perpetrator who brings a gun to the scene of his crime and eventually pulls it out of his pocket and aims it, but a lesser penalty for a perpetrator who discharges the weapon as a warning, aims it at other human beings, and brandishes it throughout the whole encounter. It cannot be so.

The legislative direction in the language of the statutes is explicit. The enumeration of criminal confinement in the "firearm use statute" is authorization by the General Assembly for this type of enhancement.

Dickson and David, JJ., concur.

Rucker, J., dissents with separate opinion in which Sullivan, J., joins. [[that concludes] In sum, the relevant facts show that the Nicoson was "armed" with the firearm the entire time he was "us[ing]" it. Essentially there was no distinction between the two. In Richardson terms, the evidentiary facts the trial court relied on to find Nicoson guilty of Class B criminal confinement — specifically, the facts used to determine that Nicoson was "armed with a deadly weapon" — were the same facts used to find that he "used a firearm." In Guyton terms, the multiple enhancements were based on the "very same behavior." 771 N.E.2d at 1143. Either way the enhancements were prohibited. I would therefore reverse the judgment of the trial court on this issue and remand for resentencing.

In Hamilton County Property Tax Assessment Board of Appeals & Hamilton County Assessor v. Oaken Bucket Partners, LLC, an 8-page, 5-0 opinion, Justice Rucker writes:
In this opinion we determine that charging below market rent for part of a building rented to a church is insufficient, standing alone, to justify a religious and charitable purpose property tax exemption. Instead, an owner of leased property must provide evidence that it possesses an exempt purpose separate and distinct from the exempt purpose of its lessee. * * *

In sum, although leasing space to Heartland for charitable and religious purposes, Oaken Bucket has failed to demonstrate it owned the property for such purposes because Oaken Bucket did not possess an exempt purpose independent of Heartland’s charitable and religious purpose. As such, Oaken Bucket has not met its burden of proving it is entitled to an exemption.

We reverse the judgment of the Tax Court.

Posted by Marcia Oddi on Wednesday, December 15, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Governor, state leaders endorse results of sentencing study"

Updating this ILB entry from yesterday, Governor Daniels this morning held a meeting on the Pew Report and issued a press release that includes the following:

The CSG Justice Center and Pew report will be released on Thursday and will include three proposed categories of policy changes:
  • Improve proportionality in sentencing and ensure prison space for the worst offenders by creating a more precise set of drug and theft sentencing laws and providing judges with more sentencing options for individuals who commit the least serious felony offenses.
  • Strengthen community supervision by focusing resources on high-risk offenders and creating incentives for supervision agencies to coordinate better with one another.
  • Reduce recidivism and bolster public safety by increasing access to community-based substance abuse and mental health treatment and enabling probation officers to respond with more effective, swift and certain sanctions.
Such changes would avoid spending $1.2 billion ($630 million in construction costs and $571 million in operating costs) associated with the state’s prison population. The plan includes an additional $37.6 million in savings from food, medical and other expenses that vary because of the size of the prison population.

The recommendations also require a reinvestment of $27 million over the next six years to strengthen probation, provide incentive funding for counties to improve outcomes for people on probation and parole, and ensure greater access to behavioral health treatment for those on supervision.

“State leaders have produced a bipartisan, data-driven policy framework that gives Indiana a real chance to achieve needed cost savings, while protecting public safety and holding offenders accountable,” said Richard Jerome, manager, Pew’s Public Safety Performance Project.

The recommendations and the CSG Justice Center/Pew report will be presented Thursday to the Criminal Code Evaluation Commission. The work over the past several months included extensive consultations with local government officials and community leaders and analysis by national experts. A 14-member steering committee was appointed that included legislators, judges, state leaders, law enforcement professionals, prosecutors and public defenders.

Tomorrow's Criminal Code meeting will be videocast.

Posted by Marcia Oddi on Wednesday, December 15, 2010
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 5 today (and 16 NFP)

For publication opinions today (5):

In Henry C. Woodward v. Kimberlee A. Norton , a 10-page opinion, Chief Judge Baker writes:

Appellant-respondent Henry C. Woodward appeals the trial court’s order finding that Special Judge Michael Gotsch had properly assumed jurisdiction over portions of the parties’ post-dissolution proceeding and finding Woodward in contempt of court for failing to comply with his child support and child support-related obligations. Woodward argues that Special Judge Gotsch never properly assumed jurisdiction, that the trial court herein improperly retained jurisdiction over certain aspects of the proceeding, and that the trial court erred by finding Woodward in contempt of court. Finding no error, we affirm. * * *

The first issue raised by Woodward is the jurisdiction of Special Judge Gotsch. Specifically, Woodward argues that Special Judge Gotsch never properly assumed jurisdiction of the post-dissolution proceedings because he failed to sign and file an acceptance of appointment. * * *

Here, by filing motions with the special judge, accepting a decrease in his child support obligation entered by the special judge, and attending multiple hearings presided over by the special judge, Woodward waived any objection regarding Special Judge Gotsch’s presence in the action. We encourage special judges to be careful to comply with Trial Rule 79(G), but a party may not sit idly by and remain silent about a missing acceptance of appointment for years, only complaining about it when an unfavorable ruling is entered. Woodward is entitled to no relief on this basis.

Woodward next argues that the trial court improperly retained jurisdiction over the matters pending before it at the time it transferred the proceedings to Special Judge Gotsch. * * *

Here, there were multiple rules to show cause against Woodward that had been filed by Norton that were pending at the time Woodward filed his petition to modify and motion for change of judge. Inasmuch as a change of judge is prospective, the trial court properly retained jurisdiction over the motions that were pending at the time the cause was transferred. Therefore, this argument must fail.

Finally, Woodward argues that the trial court erred by finding him in contempt. * * *

This evidence merely begs the question underlying his argument—is he able to pay his child support obligation? Woodward fails to answer that question in any specific or concrete way, giving us no insight into his overall financial health or true ability to make these payments. A bald assertion that he is unable to pay is insufficient to reverse a trial court’s factual finding.

In Jose Reynosa v. Pedcor Construction Corp, et al. , a 9-page opinion, Judge Riley concludes:
As a practical matter, Tennessee’s statutory exclusive remedy provision in the Worker’s Compensation Law is a part of Tennessee’s general tort law. There is no basis for Reynosa’s claim that his election to seek worker’s compensation in another state for injuries that occurred in the course and scope of employment in Tennessee erases the limitation placed on Tennessee’s tort law by the exclusive remedy provision of Tennessee’s Worker’s Compensation Law.

The trial court did not err in concluding that Reynosa is barred by Tennessee law from pursuing tort claims against the Appellees.

In Sharon Gill v. Evansville Sheet Metal Works, Inc., a 10-page opinion, the issue is whether Sharon’s claim was barred by the Construction Statute of Repose. Judge Riley concludes:
Sharon filed her suit more than ten years after the substantial completion of the project. Specifically, the designated evidence clearly reflects that Gale retired in 1986, whereas the claim was brought in 2007, or more than twenty-one years after his retirement. Permitting Sharon now to proceed with a claim against ESMW, more than twenty-one years after the last possible date of exposure, would create an open-ended liability which CSOR was designed to prevent. Thus, regardless whether there was an improvement to real estate, Sharon brought her claim outside the ten year period stipulated in the CSOR and therefore, her claim is barred.

ILB note: Much of this opinion, p. 4-10, deals with the court's concern over "the application of the Marion County Circuit Court’s mass tort litigation rules to this case," with the court concluding, at p. 10: "A proper analysis of the statutory language “improvement to real estate” necessitated detailed discovery. We believe that the trial court should not have adhered to the local rule as it failed to achieve “the ultimate end of orderly and speedy justice.” See Meredith, 679 N.E. 2d at 1310. In sum, this cause did not lend itself to the application of local rule 714.

Joe Brewer v. State of Indiana - "The Club had a pricing list for alcoholic beverages posted which the State introduced and the court admitted into evidence. The State also introduced, and the court admitted without objection, an affidavit from the custodian of business records for the Indiana Alcohol and Tobacco Commission which indicated that the Club did not have a permit to furnish and/or possess alcoholic beverages for commercial purposes. We therefore conclude that the evidence is sufficient to sustain Brewer’s conviction for sale of alcoholic beverages without a permit as a class B misdemeanor."

James Norwood v. State of Indiana - "Because the October 9, 2008 protective order expired on October 9, 2009, before the date of the alleged violation on December 26, 2009, we conclude that the evidence is insufficient to sustain Norwood’s conviction for invasion of privacy as a class A misdemeanor.

"For the foregoing reasons, we reverse Norwood’s conviction for invasion of privacy as a class A misdemeanor."

NFP civil opinions today (6):

J.S.M. v. B.C.M. (NFP)

Colip-Riggin Corporation v. Rea Riggin & Sons, Inc., et al. (NFP)

Hummer Transportation, et al. v. Kimberly Spoa-Harty, et al. (NFP)

Term. of Parent-Child Rel. of M.D., et al.; T.D. v. I.D.C.S. (NFP)

M.H. v. Review Board (NFP)

Keith M. Ramsey, M.D. v. Shella Moore, et al. (NFP)

NFP criminal opinions today (10):

Rick Hill v. State of Indiana (NFP)

Robert Murphy v. State of Indiana (NFP)

Jose Carlos Arce v. State of Indiana (NFP)

James Alfred Peek, Sr. v. State of Indiana (NFP)

Tilonda Annae Thomas v. State of Indiana (NFP)

Terry A. Hodge v. State of Indiana (NFP)

Justin Croucher v. State of Indiana (NFP)

Jennifer L. Oder v. State of Indiana (NFP)

Michael D. Robbins v. State of Indiana (NFP)

Charles E. Justise, Sr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 15, 2010
Posted to Ind. App.Ct. Decisions

Environment - "EPA Document Shows It Knowingly Allowed Pesticide That Kills Honey Bees"

Ariel Schwartz of Fast Company has the story here, along with links to the documents.

Posted by Marcia Oddi on Wednesday, December 15, 2010
Posted to Environment

Courts - "When do Supreme Court justices need to just sit down and be quiet?"

Dahlia Lithwick and Sonja West of Slate have a lengthy, interesting article today -- here are a few quotes:

There has been growing debate about the ethics and proper parameters of judicial recusals, where the concern that a justice's extracurricular activities, investments, or relationships suggest that he or she has prejudged a case. * * *

But if we put aside these difficult issues related to extrajudicial entanglements, there lies a more basic matter that the justices must also begin to address. What about the judicial gut-spilling? Above and beyond the ethical rules that require a justice to recuse herself if she has evinced bias in a specific case, should the justices be held to a different standard when it comes to what they say and how they say it? Should these standards be different for sitting and retired justices? As justices speak more and more frequently off the bench, should they come to some agreement about when their words undermine the institution as a whole?

One viewpoint—let's call it the old school—holds that justices should say nothing that isn't contained within the four corners of a written opinion. When justices pontificate off the bench, it sows confusion and controversy and undermines the impression that jurists all float above the fray. The other side holds that transparency is always better than mystification and that so long as there is no real threat to the court's impartiality in a particular case, there is great value in lifting the veil of secrecy around the workings of the court and revealing the men and women hiding out behind the red velvet curtain.

Posted by Marcia Oddi on Wednesday, December 15, 2010
Posted to Courts in general

Ind. Decisions - "FedEx Defeats Drivers Claims' Seeking Full Employee Benefits"

Karen Gullo of Bloomberg News has the story here. A few quotes:

FedEx Corp. drivers were found by a judge to be independent contractors in a nationwide series of lawsuits claiming the company treats them as employees and owes them full benefits.

U.S. District Judge Robert Miller in South Bend, Indiana, yesterday threw out claims of drivers in 20 class-action cases in California, New York, New Jersey and other states alleging the company misclassified their employment status and owed them back pay, overtime and other damages. * * *

Miller’s ruling addresses whether drivers showed they were misclassified under each states’ laws. In New York, for instance, whether an employment relationship exists turns on the degree of control the purported employer has over workers.

The 182-page opinion in In re FedEx Ground Package System Inc. Employment Practices Litigation is available here.

Indiana was a party. See the discussion of how Indiana's law applies on pp. 60-64.

Posted by Marcia Oddi on Wednesday, December 15, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Yet more on: "Evansville attorney, prosecutor candidate indicted on sex charges"

Updating this ILB entry from July 14, 2010, Andrea Howe of the Princeton Daily Clarion reports today in a story that begins:

PRINCETON — Gibson Superior Court Judge Earl Penrod agreed Tuesday to allow the Indiana Court of Appeals determine whether his ruling denying a defense motion to have charges against Princeton attorney William R. Wallace III tried separately.

The judge agreed to certify the request for an interlocutory appeal, after defense attorney Scott Danks reiterated that he believes a charge of child porn possession is unrelated to other bills of indictment returned by a Gibson Superior Court grand jury this summer and shouldn’t be part of the same trial.

Wallace, a former Gibson County Prosecutor candidate, was indicted on charges of false informing, obstruction of justice, patronizing a prostitute and possession of child porn this summer.

Special Prosecutor Jonathan Parkhurst filed an additional charge of voyeurism in late November.

Police say Wallace had sex with a client in lieu of payment for attorney fees, lied to police during their investigation and tried to leave his house with a DVD and computer drive stuffed down his pants when police served a search warrant at his home. The child pornography charge stems from a police search of his computer seized by police in the search.

The voyeurism charge alleges that Wallace made video recordings of the woman without her consent.

Danks said he plans to file a motion to dismiss the voyeurism charge.

Posted by Marcia Oddi on Wednesday, December 15, 2010
Posted to Indiana Courts

Ind. Courts - Indiana Clerk's holiday schedule

The Office of the Indiana Clerk of the Court of Appeals & Supreme Court will be closed Thursday and Friday 12/23,12/24 and Friday 12/31/11. Plan your filing accordingly!

Posted by Marcia Oddi on Wednesday, December 15, 2010
Posted to Indiana Courts

Tuesday, December 14, 2010

Ind. Law - IU Maurer School of Law Appoints Dawn Johnsen and Three Others to Chaired Professorships

From the release:

The Indiana University Maurer School of Law has appointed four faculty members to chaired professorships. They are: Kevin Brown, Richard S. Melvin Professor of Law; Hannah Buxbaum, Executive Associate Dean for Academic Affairs and John E. Schiller Chair in Legal Ethics; Mark Janis, Robert A. Lucas Chair of Law; and Dawn Johnsen, Walter W. Foskett Professor of Law.

"These distinguished faculty members exemplify the highest standards of research and teaching in their areas of expertise," said Lauren Robel, Dean and Val Nolan Professor of Law. "Their appointment to chaired positions will provide them with additional resources to enhance their scholarship and teaching."

Posted by Marcia Oddi on Tuesday, December 14, 2010
Posted to Indiana Law

Ind. Gov't. - Pew study results are in

This press release just received from the Gov. office:

Tomorrow, 10 a.m. Governor’s Office

Governor Mitch Daniels, state legislators and judges, prosecutors, Richard Jerome, manager of Indiana's public safety performance report for the Pew Center on the States and the Council of State Governments Justice Center, and other key stakeholders who were involved in the first comprehensive review of Indiana's criminal code and sentencing policies in more than 30 years, will discuss the results of the study.

See also this ILB entry from yesterday.

Posted by Marcia Oddi on Tuesday, December 14, 2010
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Presbytery of Ohio Valley, Inc., et al. v. OPC, Inc., et al. , an 18-page opinion, Chief Judge Baker writes:

In this appeal, a local congregation that was a part of the national Presbyterian Church petitioned to leave the national Church. When the governing Church body indicated that it might not permit the local congregation to retain the property on which it was situated, the local congregation truncated the process and refused to acknowledge the Church's right to the property. The dispute made its way into the judicial system, and we now conclude that because (1) the local congregation was part of the national Church and accepted the benefits of being part of a national organization, (2) the local congregation acknowledged in its bylaws that it was bound by the national Church Constitution and could not amend its bylaws to conflict with that document, and (3) the Church Constitution contains a clause providing that all property titled to local congregations is held in trust for the use and benefit of the national Church, judgment must be entered in favor of the governing judicatory bodies of the national Church—the Appellants. * * *

The Appellants argue that the trial court erred by applying the neutral principles of law approach rather than the polity approach to this property dispute. But even if the neutral principle approach is found to apply herein, the Appellants contend that they should prevail. We conclude that when the neutral principles of law approach is applied correctly, the Appellants prevail. Consequently, we reverse and remand with instructions to enter summary judgment in the Appellants' favor, together with a declaratory judgment that Olivet has no right, title, or interest in the Oak Hill Property, and a constructive trust on that property in favor of the Presbytery.

In The Hunt Construction Group, Inc., et al. v. Shannon D. Garrett , a 21-page, 2-1 opinion, Judge Barnes writes:
On October 16, 2006, Garrett, an employee of Baker Concrete, was injured at the jobsite when another employee of Baker Concrete was removing a piece of forming material above her and the forming material fell, striking Garrett. Garrett sustained injuries to her head and left hand.

Garrett filed a complaint for negligence against Hunt Construction. Garrett then filed a motion for partial summary judgment regarding Hunt Construction's duty to her. Garrett argued that Hunt Construction had assumed a nondelegable duty to her through its contract and that it had assumed a duty to her through its conduct. * * *

Hunt Construction was not vicariously liable to Garrett, and the trial court erred by granting summary judgment to Garrett on this issue. However, Hunt Construction owed a duty to Garrett through its contracts, and the trial court properly granted summary judgment to Garrett on that issue and properly denied Hunt Construction's motion for summary judgment on that issue. We affirm in part and reverse in part.

CRONE, J., concurs.
FRIEDLANDER, concurs in part and dissents in part with separate opinion. [that begins, at p. 18] I concur with the Majority that Hunt Construction, by virtue of its relationship to Baker Concrete, did not owe a nondelegable duty to Garrett so as to support a finding of vicarious liability. I respectfully dissent, however, from the Majority's conclusion that Hunt Construction independently owed a duty to Garrett based on contract. I would further conclude that Hunt Construction did not assume a duty to Garrett based on conduct.

In Kathy Niegos v. Arcelor Mittal Burns Harbor LLC, f/k/a ISG Burns Harbor, LLC, a 7-page opinion, Judge writes:
Appellant/Petitioner Kathy Niegos appeals from the Indiana Worker’s Compensation Board’s (“the Board”) dismissal of her claim, pursuant to the Occupational Disease Act (“the ODA”), against ArcelorMittal Burns Harbor LLC, her late husband’s former employer. Niegos contends that the Board erroneously concluded that the “absolute bar” provision of ODA should apply when she has resolved some, but not all, claims against third-party defendants. ArcelorMittal counters that receipt of any third-party settlement relieves it of any liability under the ODA and that Niegos’s failure to notify it before accepting third-party settlements forfeits her rights under ODA. Concluding that Niegos’s failure to notify ArcelorMittal before entering into third-party settlements is fatal to her ODA claim, we affirm. * * *

It is undisputed that Niegos failed to notify ArcelorMittal of any of the settlements she entered into with third-party defendants. (Appellant’s App. 25). In so doing, Niegos signed away ArcelorMittal’s rights without its consent or notice, preventing it from protecting its interests during settlement negotiations. As such, Niegos has forfeited her right to proceed against ArcelorMittal under the ODA, and the Board properly dismissed her claim. We affirm the judgment of the Board.
KIRSCH, J., concurs.
CRONE, J., concurs in result.

NFP civil opinions today (2):

Chijoike Bomani Ben-Yisrayl, f/k/a Greagree Davis v. State of Indiana (NFP)

SHF Enterprises, Inc. v. Richard D. Hailey, et al. (NFP)

NFP criminal opinions today (6):

Roy Shane Arensman v. State of Indiana (NFP)

Oscar Iraheta-Rosales v. State of Indiana (NFP)

John Eddie Lindsey v. State of Indiana (NFP)

Bronskey Smith v. State of Indiana (NFP)

Quentin S. Phipps v. State of Indiana (NFP)

Clayton Frazier v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 14, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Retirement Ceremony to Honor Indiana Tax Court Judge Thomas G. Fisher

The ceremony will take place this Friday, Dec. 17 at 10:30 am. See the press release here for more information.

No word yet on Governor Daniels' selection of a replacement for Judge Fisher. Over a month ago, on Nov. 5th, the names of three candidates were submitted to Gov. Daniels: Bloomington attorney Joby D. Jerrells, Judge Karen M. Love of the Hendricks Superior Court, and Indianapolis attorney Martha Wentworth.

Posted by Marcia Oddi on Tuesday, December 14, 2010
Posted to Indiana Courts

Ind. Courts - Editorial details pros and cons of creating Fort Wayne city court

Updating yesterday's ILB entry, the Fort Wayne Journal Gazette today has an editorial looking at the pros and cons of establishing a city court in Fort Wayne. Some quotes [Emphasis added by ILB]:

The Henry administration wants to follow the lead of New Haven and, more recently, the Indianapolis suburb of Fishers, by creating a city court that would hear cases regarding violation of city traffic laws and local ordinances. New Haven will bring in about $2 million from the court this year, but the much larger Fort Wayne receives only about $250,000 to $300,000 in revenues from the state courts for city ordinance violations.

Considering city police and other city employees enforce those ordinances, bringing that revenue back to the city makes sense.

And creating new judicial programs to help target revenue is hardly unique. Allen County’s infraction-deferral program results in motorists paying the same amount for fines as pleading guilty, with the money directed to local governments rather than the state.

But there are problems with the proposal that will very likely not be surmounted in the 18 days before the law must be passed to create the court in time to place the judge on the 2011 ballot.

State law requires a city court judge be a resident of the city. That’s it. At the very least, a judge should be a licensed attorney who has not only passed the bar but also must remain current in education. Whether the city could adopt a home rule law with a tougher restriction is worth study, but such a requirement would probably necessitate a change in state law.

This comes as the Indiana Supreme Court and state judicial leaders are calling for an end to city and town courts as part of an effort to boost the judiciary’s professionalism. At the same time, some state legislators sympathetic to the financial woes of Indiana’s cities and towns are proposing other ways to make sure municipalities get revenue from fines, possibly through appointment of a hearing officer or commission.

Another limitation is that city courts are not courts of record. That means if a defendant wants to appeal a ruling, the case gets bounced to a county-level court and essentially starts again from scratch – making the city court proceeding a literal waste of time.

But the biggest limitation is the calendar. State law requires city courts be adopted in the year before a municipal election, so a candidate running for judge in 2011 would assume office in 2012. If not adopted this year, that would mean the earliest a city court could begin is 2016, with a judge elected in 2015.

Posted by Marcia Oddi on Tuesday, December 14, 2010
Posted to Indiana Courts

Ind. Courts - "Murder trial awry: Suspect hits his lawyer"

Rebecca S. Green of the Fort Wayne Journal Gazette reports today in a story that begins:

FORT WAYNE – The trial of accused murderer and robber Delmas Sexton was delayed Monday morning after the defendant hit his court-appointed attorney in the face.

Special Judge Thomas Hakes, handling the case for Allen County Superior Court, allowed Sexton’s attorney, Jeff Raff, to resign from the case, and prosecutors are investigating the possibility of filing an additional charge against the defendant.

According to witnesses, Sexton took a swing at Raff before the proceedings began and when few people were assembled in the courtroom. Criminal defendants, even those in custody, usually wear civilian clothes and are not handcuffed during their trials. Bailiffs and other officers in the courtroom quickly subdued Sexton and removed him.

Posted by Marcia Oddi on Tuesday, December 14, 2010
Posted to Indiana Courts

Ind. Decisions - "Lake Station out $500K in sewer fee decision"

Yesterday's COA decision in Town of New Chicago v. City of Lake Station, et al. (ILB summary here) is the subject of a story today in the Gary Post Tribune, reported by Teresa Auch Schultz. Some quotes:

Lake Station will have to eat more than $500,000 in fees to the Gary Sanitary District after the Indiana Court of Appeals ruled against its quest to get that money from New Chicago.

The opinion reverses a decision by Lake County Judge Diane Kavadias Schneider, who had originally ruled that New Chicago had to pay Lake Station $536,315 for late payments owed to the GSD from 1990 to 2004.

The two sides have been battling over who is responsible for the late payments. The GSD serves both Lake Station and New Chicago, but Lake Station administers the service for New Chicago and bills it on behalf of GSD. * * *

"They accused us of breaching the agreement and not paying our share when we didn't even know about it for 15 years," said Robert Peters, who along with his son, who is also named Robert Peters, represented New Chicago.

Posted by Marcia Oddi on Tuesday, December 14, 2010
Posted to Ind. App.Ct. Decisions

Monday, December 13, 2010

Ind. Courts - Still more on "Bill would allow Indiana cities and towns to collect their own money for ordinance violations, rather than going through the regular county court system"

Updating Saturday's ILB entry, about efforts to establish a city court in Fort Wayne, where the ILB asked:

So which is it? Are city and town courts extraordinarily lucrative for their municipalities? Or not? Are more motorists cited when the city or town is in charge? How are the funds handled, with and without a municipal court?
Today Jeff Neumeyer of Indiana News Center writes:
Judge Fran Gull/Allen Superior Criminal Court: " The Greenwood city court in Greenwood Indiana is costing the City of Greenwood in excess of $80,000. So, once you take into account salaries and time and effort, they're not really money-makers."

Fort Wayne Deputy Mayor Beth Malloy disputes that notion, saying the Henry administration surveyed 20 cities and towns that have municipal courts, and that Greenwood reported net income of $579,000 IN 2009.

Hammond, New Haven, and Carmel also reported net incomes of $1.7 to $2.2-million.

Malloy says Fort Wayne wants to preserve the right to create a city court as a source of more revenue for citations generated by city police officers.

The city court ordinance will be introduced to city council Tuesday.

The story includes a video interview with Judge Gull, who expressed concerns about a city court handling misdemeanors.

Posted by Marcia Oddi on Monday, December 13, 2010
Posted to Indiana Courts

Ind. Gov't. - Continuing with: "Democrats contest White's election: Petition says he is not eligible to be secretary of state" [Updated]

Updating this ILB entry from Dec. 10, re the second meeting of the Indiana Recount Commission, this time held in North Vernon yesterday beginning at 1 pm and continuing on, reportedly for 11 hours, the AP is reporting:

The Indiana Recount Commission has dismissed a Democratic challenge to the Republican candidate's victory in the race for secretary of state.

Secretary of State's office spokesman Todd Darroca said the commission voted 2-1 Sunday in favor of a Republican motion to dismiss the challenge to Charlie White's election.

Why did current Secretary of State Todd Rokita, chair of the Commission, schedule the meeting on a Sunday in Mount Vernon in a snowstorm? Perhaps the answer is, because he could ...

[Updated at 3:56 PM] Mary Beth Schneider of the Indy Star has just posted this story on the dismissal of the petition.

Posted by Marcia Oddi on Monday, December 13, 2010
Posted to Indiana Government

Courts - "Justice Kagan on Using a Kindle to Read Briefs " and a suggestion from the ILB

In this short C-SPAN clip, Justice Kagan says she reads briefs on a Kindle and remarks that maybe she should use an iPad, as Justice Scalia has reported he does.

ILB suggestion: The ILB has used both, first the Kindle when it first came out, and now the iPad, to read briefs and other PDF documents. The clear winner is the iPad, with the GoodReader App, which I even find preferable to reading the PDFs on my computer. As they say:

With no bars or buttons blocking the text, you have true full screen reading. The PDF hyperlink feature allows you to quickly jump back and forth within the document. Tapping a link will whisk you across a huge PDF book in an instant, and the "Go Back" button takes you back to the page you came from. If you already know what you're looking for, the Text Search feature helps you find your way to the exact info you want in any PDF or TXT file. You can even use the 50x zoom, which gives you a better view, without distorting the image. That makes it perfect for viewing PDF maps or drawings.

Posted by Marcia Oddi on Monday, December 13, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Town of New Chicago v. City of Lake Station, et al. , a 31-page opinion, Judge Vaidik writes:

In 1988 the Town of New Chicago (“New Chicago”) and the City of Lake Station (“Lake Station”) entered into an intermunicipal agreement for the construction of an interceptor sewer system. The parties’ combined water was then sent downstream for treatment at the Gary Sanitary District (“GSD”). In their agreement, the parties agreed to comply with federal law, including the Clean Water Act, and that Lake Station would bill New Chicago monthly at the GSD rate. Although GSD tripled its rate in 1989, Lake Station did not inform New Chicago and continued to bill New Chicago at the old rate. GSD then sued Lake Station in 1999. Again, Lake Station did not inform New Chicago of the lawsuit. After Lake Station paid an over-five-million-dollar judgment to GSD in 2005 for the difference between the old rate it had been paying and the increased rate, Lake Station demanded approximately a half million dollars from New Chicago for its proportionate share of the judgment. When New Chicago did not pay, in 2007 Lake Station filed a two-count complaint against New Chicago seeking to recover the approximately half million dollars for the years 1990 to 2004. New Chicago raised several affirmative defenses, including laches and equitable estoppel.

In this discretionary interlocutory appeal, New Chicago appeals the trial court’s grant of partial summary judgment in favor of Lake Station on the issue of liability and denial of its motion for summary judgment. We conclude that there is no private right of action under the Clean Water Act. Accordingly, Lake Station’s only viable claim against New Chicago is for breach of contract. We conclude that laches is not available to New Chicago as a defense for Lake Station’s breach of contract claim because laches acts as a limitation upon equitable relief, and an action for breach of contract is a legal claim. Nevertheless, we conclude that New Chicago has met its burden of proving the defense of equitable estoppel because: (1) New Chicago lacked the knowledge or means of knowledge that Lake Station was not properly billing them because there was no indication that anything was wrong, (2) New Chicago relied on the monthly billings from Lake Station for more than fifteen years without any sort of notice from Lake Station, and (3) Lake Station’s conduct caused New Chicago to prejudicially change its position in that New Chicago was prevented from budgeting for the increased rate or joining in the GSD/Lake Station litigation. Because there is no genuine issue of material fact, we reverse the trial court and direct the court to enter summary judgment in favor of New Chicago on New Chicago’s equitable estoppel defense.

In Involuntary Commitment of G.M. , a 6-page opinion, Sr. Judge Sullivan writes:
G.M appeals from his involuntary regular commitment to the Logansport State Hospital. He asserts that the commitment order was not supported by sufficient evidence. His claim is that the court erroneously concluded that he was gravely disabled because that conclusion was premised upon a mere concern on the part of the petitioning psychiatrist at the Hospital that G.M. might relapse into his debilitating mental state and addiction to drugs and alcohol if he were to be released and went off his medication. G.M., without supporting authority, merely opines that such concern is not adequate proof of grave disability. * * *

In the case before us, we hold that the conclusion which the committing court stated as the basis for its order was not supported by the evidence but that rather than termination of the commitment, the more appropriate solution to the problem presented is to remand the matter to the committing court to conduct a review proceeding within fifteen days pursuant to Indiana Code section 12-26-15-1 (2004). The review should be a current review of G.M.’s care and treatment. In the review proceeding, due consideration shall be given to the “step-down” treatment plan set forth by Dr. Thompson in his May testimony, or to any alteration or modification of such treatment plan deemed appropriate to G.M.’s present mental condition and to such care and treatment as may be appropriate at the present time.

This cause is remanded to the Henry Superior Court for further proceedings consistent with this opinion.

NFP civil opinions today (1):

J.R. v. Review Board (NFP)

NFP criminal opinions today (4):

Michelle Daub v. State of Indiana (NFP)

Antelmo Juarez v. State of Indiana (NFP)

Tiara N. White v. State of Indiana (NFP)

Justin Morris v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 13, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending December 10, 2010

Here is the Clerk's transfer list for the week ending December 10, 2010. It is two pages (and 29 cases) long.

Two transfers were granted for the week ending Dec. 10, 2010.

A notable transfer denied today is: __________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the October 8, 2010 list.

Over 6.5 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Monday, December 13, 2010
Posted to Indiana Transfer Lists

Ind. Law - Are Indiana's car insurance minimums too low?

That is the question explored in this story today in the Fort Wayne Journal Gazette, reported by Rebecca S. Green.

Posted by Marcia Oddi on Monday, December 13, 2010
Posted to Indiana Government

Ind. Gov't. - Three IURC finalists recommended to Gov. Daniels

Updating this ILB entry from Friday, Dec. 10th, John Russell of the Indianapolis Star reported Saturday:

A nominating committee is recommending that Gov. Mitch Daniels consider three finalists, including the governor's former environmental policy director, for an open seat on the Indiana Utility Regulatory Commission.

Twelve people had applied for spots on the five-member panel, which regulates rates paid by Indiana consumers for electricity, water, natural gas, steam and sewer utilities, as well as parts of the telecommunications and cable industries.

Those recommended on Friday were:

Kari Evans Bennett, chief legal counsel for the Indiana Department of Natural Resources and Daniels' former environmental policy director.

Peter Bisbecos, former director of the Division of Disability and Rehabilitative Services in the Indiana Family and Social Services Administration.

David Yount, a self-employed investment manager.

Posted by Marcia Oddi on Monday, December 13, 2010
Posted to Indiana Government

Ind. Gov't. - Criminal Code Evaluation Commission to meet Thursday

The Criminal Code Evaluation Commission will be meeting Thursday, Dec.. 16th at 9:30 am in the House Chambers. An earlier meeting, set for Dec. 7th, was canceled. It is anticipated that the Pew Report will be the focus of this meeting. The meeting will be videocast.

Posted by Marcia Oddi on Monday, December 13, 2010
Posted to Indiana Government

Ind. Decisions - Supreme Court takes Center Grove area annexation case

The Supreme Court's transfer list for the week ending Dec. 10, 2010 is not yet available. However, the ILB learned Saturday, via the Johnson County Daily Journal ($$), that:

[T]he Court has decided to hear a case over who can annex land along State Road 135 in the Center Grove area.

The state’s highest court issued an order Friday granting Bargersville’s request that the court settle a two-year legal battle over land that both the town and Greenwood want.

Posted by Marcia Oddi on Monday, December 13, 2010
Posted to Indiana Transfer Lists

Catch-up: What did you miss over the weekend from the ILB?

Here is the answer to "What did you miss over the weekend from the ILB? But first, please think about becoming an ILB supporter!

From Sunday, December 12, 2010:

From Saturday, December 11, 2010:

Posted by Marcia Oddi on Monday, December 13, 2010
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/13/10):

Thursday, December 16th

Next week's oral arguments before the Supreme Court (week of 12/20/10):

Next Wednesday, December 22nd

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 12/13/10):

Thursday, December 16th

Friday, December 17th

Next week's oral arguments before the Court of Appeals (week of 12/20/10):

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, December 13, 2010
Posted to Upcoming Oral Arguments

Saturday, December 11, 2010

Courts - New appointment means Ohio Supreme Court has 4-3 female majority

So reported Jim Provance of the Toledo Blade yesterday. From the long story:

COLUMBUS — Yvette McGee Brown, who would have been lieutenant governor if Gov. Ted Strickland's re-election bid had been successful, will become the first African-American woman to serve on the Ohio Supreme Court.

The Democratic governor said Friday that, as one of his last acts before leaving office on Jan. 10, he will name the former Franklin County Juvenile Court judge to fill the vacancy that will be created on Jan. 1 when Republican Justice Maureen O'Connor is elevated to chief justice. * * *

Mr. Strickland has frequently said that he believes he has succeeded in increasing diversity on Ohio's courts through his appointments. In addition to being the first African-American woman to serve on the bench, Ms. Brown will be the only current African-American on the court. Her appointment also shifts the court to a rare 4-3 female majority.

“I love that,'' Ms. Brown said. “It's just such an opportunity to have a woman majority court. We're going to have the first woman chief justice in (Ohio Supreme) court history. That's something special. It isn't the first time there's been a woman majority, but it doesn't happen often, and we need to celebrate and affirm that.''

Posted by Marcia Oddi on Saturday, December 11, 2010
Posted to Courts in general

Ind. Decisions - Still more on "Court rules for surveyor in drainage turf fight"

Updating this ILB entry from Dec. 7, 2010, Ben Zion Hershberg of the Louisville Courier Journal reports in a story that begins:

The Clark County Drainage Board has decided to appeal a judge’s ruling that said it improperly ignored the guidance of Clark County Surveyor Bob Isgrigg in solving two drainage issues.

“We were very frustrated with the judge’s ruling,” Mike Moore, a Clark County commissioner and member of the drainage board, said this week.

Moore and other board members were prepared to resign following Superior Court Judge Vicki Carmichael’s ruling last month because they felt it made the board’s work unnecessary, Moore said. But in discussing the situation at a meeting Wednesday, he said, the board decided to continue its work and appeal.

Moore said he’s confident the appeal will succeed.

But Isgrigg said he’s confident that his court victory will be upheld and believes his lawsuit will help more residents get drainage problems repaired by the county, including some households with pending cases.

Posted by Marcia Oddi on Saturday, December 11, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Courts - More on "Bill would allow Indiana cities and towns to collect their own money for ordinance violations, rather than going through the regular county court system"

Updating this ILB entry from Dec. 1, 2010, it does look like the Indiana Court's proposal for revamping the courts is being pulled at both ends.

"A New Way Forward," the Indiana Judicial Conference's strategic plan to reform the courts, proposes abolishing city and town courts. Chief Judge Baker talked about the plan in this Nov. 5, 2010 ILB entry.

But this Nov. 10 press release, from long-time Fishers resident and three-term member of the Fishers Town Council, Dan Henke, announces the creation of a new town court, in Fishers:

The Fishers Town Court will begin service to the community in January 2012. * * *

“The establishment of a Town Court is a win-win for Fishers,” Henke said. “It will provide a more convenient way of resolving ordinance violations by saving citizens the time it takes to travel to the courts in Noblesville. In addition, it will save our police officers significant time away from their regular duties waiting for court appearances.”

The Greene County Daily World story quoted in a Dec. 1, 2010 ILB entry reported:
Two area lawmakers plan to introduce legislation when the General Assembly opens in January that will help Indiana cities and town more effectively enforce local ordinance violations and keep the money that is collected from fines.

District 45 State Rep. Bruce Borders (R-Jasonville) and District 39 State Sen. John Waterman (R-Shelburn) are working on a bill that will be introduced that would allow Indiana cities and towns to collect their own money for ordinance violations, rather than going through the regular county court system. * * *

"What we are looking at is allowing cities and towns to enforce their own ordinances and collect the fines locally and keep that money. Right now, if you are going to enforce your own ordinances you have to have a city court and you have to have a licensed attorney and so forth. We are looking back to having basically a justice of peace system. ... The cities and town can basically do all of this themselves," he stressed.

Yesterday Mitch Harper, editor of Fort Wayne Observed, reported [emphasis added by ILB]:
Fort Wayne City Clerk Sandy Kennedy is asking the Fort Wayne Common Council to consider creation of a Fort Wayne City Court. And she wants Council to consider it on a very fast track so that there would be a possibility of allowing candidates to run for the elected position in 2011.

Creation of such a court is permitted under state statutes; New Haven created such a court years ago. Many motor vehicle moving violations are processed by the City Courts and bypass the current system which utilizes the Allen County Superior Court's Misdemeanor Division at the Bud Meeks Justice Center.

One doesn't have to be an attorney to be elected judge of a City Court. New Haven City Court Judge Geoff Robison is the former Chief of the City of New Haven Police Department.

Such courts tend to be extraordinarily lucrative for city coffers.

And today the Fort Wayne Journal Gazette has this story, reported by Benjamin Lanka and Rebecca S. Green, and headed "Mayor floats city court to boost revenue: Judge, prosecutor scoff at proposal." Some quotes:
Fort Wayne wants to re-create a city court system that officials believe will triple revenue from parking and ordinance violations.

Mayor Tom Henry’s administration filed a bill with the City Council on Friday to establish the City Court of Fort Wayne, but several Allen County court officials almost immediately said the idea was not sound.

Deputy Mayor Beth Malloy said the proposal is money-driven, noting the city receives only about $500,000 a year for all the citations it writes. In comparison, New Haven’s city court expects to generate $2 million in revenue this year, she said.

“We should do at least as well as New Haven,” she said.

Allen Superior Court Judge Fran Gull is on the state’s strategic planning committee for the courts, and the group has recommended shutting down all current city and town courts operating in the state.

Contrary to what city officials believe, the courts do not actually generate revenue for the communities in which they operate, Gull said, listing one of the reasons for the proposed shutdown.

Another reason is that, unlike the state’s circuit and superior courts, city and town courts are not considered “courts of record,” she said.

That means they do not often maintain transcripts of the proceedings, and if a person wants to appeal a ruling, it goes before the superior or circuit court judge, where the case is in effect retried in its entirety, she said.

Under Indiana law, city and town court judges do not have to be lawyers, something the strategic planning committee recommended changing.

News of the city’s plan to operate its own court generated an immediate negative reaction from Gull, who supervises the Superior Court’s criminal division, including the misdemeanor and traffic courts that handle the city’s ordinance violations.

“The proposition of city and town courts is an anachronism,” Gull said. “It goes back to the justice of the peace courts. We’re a little past that.”

Currently, Allen Superior Court handles city ordinance cases in the misdemeanor court about one day a week. City officials never approached Gull for more time or indicated there was any problem with how cases were being handled, she said. * * *

The city’s move goes directly against the direction the state is trying to move its judicial system, Gull said.

“We’ve been working really hard to streamline the courts and make them more efficient,” she said. “It’s a fallacy that (the court) is going to make any money for them.”

Allen County Prosecutor Karen Richards was also disappointed to hear of the city’s plans, something she said she had expressed to them when she first heard the idea being discussed.

For her, the loss of some of the minor cases means a direct loss of revenue in the infraction division.

She sees the proposal as completely unnecessary, costing money to duplicate a process already handled by county officials. * * *

Clerk Sandy Kennedy, * * * who handles the city’s parking enforcement, is pushing the city court bill to give city officials more control over their tickets. She said sometimes city tickets are dismissed at the county court, which is discouraging to her employees.

She said 75 other Indiana communities have municipal court systems, including Fishers, which recently created one. City court in Fort Wayne was abolished in 1972, Kennedy said, although she was unaware of the reason.

ILB: So which is it? Are city and town courts extraordinarily lucrative for their municipalities? Or not? Are more motorists cited when the city or town is in charge? How are the funds handled, with and without a municipal court?

Posted by Marcia Oddi on Saturday, December 11, 2010
Posted to Indiana Courts

Friday, December 10, 2010

Ind. Decisions - "Supreme Court reversed an appellate court ruling that increased 36-year-old Jeffrey A. Akard's sentence from 93 years to 118 years"

The Supreme Court's decision yesterday in Jeffrey E. Akard v. State of Indiana (ILB summary here )is the subject of a story today in the Lafayette Journal-Courier, reported by Sophia Voravong. Some quotes:

In a unanimous opinion filed late Thursday afternoon, the Indiana Supreme Court reversed an appellate court ruling that increased 36-year-old Jeffrey A. Akard's sentence from 93 years to 118 years.

It was the first time in Indiana that an offender's sentence was revised upward. * * *

Akard's increased sentence centered on a 2009 Supreme Court ruling that gave Indiana's higher courts authority to revise a sentence upward, though only "in the most unusual case."

The appellate court believed that Akard's was one of those cases.

The Supreme Court, however, noted in Thursday's ruling that Akard's sentence - handed down by Tippecanoe Superior Court 2 Judge Thomas Busch - was not "inappropriately lenient" and that it matched the recommendation of Deputy Prosecutor Laura Zeman.

Posted by Marcia Oddi on Friday, December 10, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In David Snowberger v. State of Indiana , an 8-page opinion, Judge Brown concludes:

The State specifically agreed in Snowberger’s plea agreement on August 19, 2009 that his probation would not be revoked unless his failure to pay support under Cause No. 58 was “proven to be willful” and that Snowberger “has the ability to make said payment(s).” The Cass County Probation Department, through its probation officer Haney, filed a violation of probation notice on September 29, 2009—just forty-one days after Snowberger agreed to the terms of the plea agreement. Snowberger’s failure to pay child support during the period from August 19, 2009 to September 28, 2009 as alleged in the violation notice does not show that the failure was willful or that Snowberger had the ability to make the support payments. Absent additional evidence regarding Snowberger’s willful failure to pay child support or his ability to make payments during that period of time, we are unable to say that the evidence supports the court’s determination. Based upon our review of the testimony and other evidence presented at the probation revocation hearing as set forth in the record, we conclude that the evidence was insufficient to revoke Snowberger’s probation. Reversed.
In G.D. v. Review Board , a 7-page opinion, Judge Kirsch writes:
G.D. challenges as contrary to law the Review Board's order affirming the Director's denial of his motion to reinstate his appeal. The Review Board did not hold a hearing and did not receive additional evidence in reaching its determination. Instead, the Review Board adopted and incorporated by reference the findings of fact and conclusion of law of the ALJ. * * *

In the absence of an evidentiary hearing during which an ultimate determination of basic or ultimate facts on this issue is made, we are unable to determine whether G.D. made substantial efforts to comply with the requirement that he return the participation slip with his telephone number. Accordingly, we remand this matter to the Review Board for further proceedings, and instruct the Review Board to conduct a hearing limited to the issue of whether G.D. made substantial efforts to comply with the requirement that he return the participation slip with his telephone number in order to obtain his hearing. Reversed and remanded for further proceedings consistent with this opinion.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Jonathon L. Dillard v. State of Indiana (NFP)

Carlene L. Henry v. State of Indiana (NFP)

Tommie Reives v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 10, 2010
Posted to Ind. App.Ct. Decisions

Environment - "Two Gary sewage plant employees charged with fudging tests"

Teresa Auch Schultz and Jon Seidel of the Gary Post-Tribune had a very long story Dec. 9th that began:

United Water Services, the company that operated the Gary Sanitary District for 12 years, chose increasing its profits over properly killing E. coli bacteria before its water headed to the swimming beaches of Lake Michigan, according to a federal indictment.

The company and two employees face 26 counts of conspiring to defraud the U.S. government and violating the Clean Water Act by allegedly lowering the amount of chlorine used to kill E. coli until just before samples were taken.

Posted by Marcia Oddi on Friday, December 10, 2010
Posted to Environment

Ind. Decisions - No Indiana cases from the 7th Circuit, but an interesting opinion involving CERCLA

Arrow Gear Company v. Downers Grove Sanitary District (ND Ill.), a 10-page opinion by Judge Posner, begins:

In 2008 the appellees, Arrow and Precision, brought separate suits under section 113(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9613(b), seeking contribution—seeking to shift some of the costs that Arrow and Precision had incurred, as a result of having been found liable for groundwater contamination, to other polluters of the same site. Those other polluters are the defendants in Arrow’s and Precision’s suits. The district court dismissed the suits as barred by res judicata. We have consolidated the appeals, but discuss only Arrow’s appeal because Precision’s presents no additional issues. We address issues of appellate and trial-court jurisdiction, res judicata, and interpretation of settlement agreements.

Posted by Marcia Oddi on Friday, December 10, 2010
Posted to Ind. (7th Cir.) Decisions

Law - "Elizabeth Warren, the Harvard University law professor selected by President Barack Obama to police consumer finance, is wooing state attorneys general to act as her deputies"

So begins this story from Bloomberg Business Week by Carter Dougherty. The interesting story points out that "The new geniality is a departure from the recent past." The story concludes:

During the Florida meeting, Warren says, the state prosecutors asked if she could make federal money available to fund state enforcement efforts. She's considering the idea, which has precedent. The U.S. Health and Human Services Dept. gives states grants to finance prosecutions of Medicaid fraud, says Indiana Attorney General Greg Zoeller, a Republican. Zoeller is now working with Warren, despite worries that state AGs will get hooked on federal cash. "I fear that over the years, the bureau will dictate to the independent attorneys general how we do our job," Zoeller says.

Posted by Marcia Oddi on Friday, December 10, 2010
Posted to General Law Related

Ind. Gov't. - Even more on: "Democrats contest White's election: Petition says he is not eligible to be secretary of state"

Updating this ILB entry from last Saturday and this entry from last Monday, Dec. 6th on the Indiana Recount Commission's hearing last Sunday at 4 pm in the State Office Building, there is to be another hearing this Sunday, this time in Mount Vernon Indiana. Really.

Here is the announcement from Indiana Secretary of State Todd Rokita, chairman of the commission:

Rokita said the recount commission will meet again Sunday, Dec. 12, 2010 to continue the recount process in House District 76. The meeting is scheduled to begin at 1 p.m. EST/ 12 p.m. CST and will take place at the historic Hovey House in Mt. Vernon. The Hovey House is an especially significant location for the state recount commission to perform its work. The house was named after Indiana Gov. Alvin Hovey, who was instrumental in implementing a bipartisan effort to reform and modernize Indiana elections procedures during his term of office beginning 1889 to 1891. Hovey House continues to be used today for government functions such as the meetings of the Posey County commissioners and council.

Additionally, the meeting will be streamed live via a web portal on the Indiana Secretary of State’s website – http://www.sos.in.gov/.

Posted by Marcia Oddi on Friday, December 10, 2010
Posted to Indiana Government

Ind. Gov't. - More on "Ethics issue kills a Duke Energy deal on Indiana plant costs"

Updating this ILB entry from late yesterday afternoon, John Russell's report in this morning's Indianapolis Star begins:

Upset by a growing ethics scandal at Duke Energy Corp., a group of large industrial customers is starting to shove back.

The customers, which include steel mills, major retailers and large manufacturers, have demanded that the utility renegotiate an agreement that was reached in September that had customers paying for much of the latest cost overruns at Duke's $2.9 billion coal-gasification plant in Edwardsport.

On Thursday, Duke agreed to reopen negotiations, clearing the way for large industrial customers to push for the utility to swallow more of the cost. All the key players filed a joint motion with state regulators saying they would renegotiate the latest round of cost overruns, worth about $500 million.

The players include Duke, Nucor Steel, a coalition of large industrial customers and the Indiana Office of Utility Consumer Counselor.

Later in the story:
The Edwardsport plant is one of the most expensive projects in Indiana history. It would be the first commercial-scale gasification plant in the country when it starts operating in 2012.

But the plant has increasingly come under fire for rising costs. The price tag has ballooned to $2.9 billion, up from an original estimate of $1.9 billion in 2007. The scrapped settlement would have forced customers to pay as much as 14 percent more for their electricity over five years. * * *

Earlier this year, regulators approved Duke's request to increase the projected cost recovery to $2.35 billion. Then, in April, Duke told regulators it needed $530 million more than that to complete the project, which the company said would represent an additional 3 percent increase in rates.

But that was too rich for some, raising objections from the Indiana utility customer counselor and the Duke Energy Indiana Industrial Group, which represents large commercial customers, and others. After much additional negotiation, they came to an agreement in September, with Duke pledging not to file for a general rate increase before March 2012.

ILB: It was the industrial customers' concerns that led to the abandonment of the PSI Marble Hill nuclear project. Back then, rate increases to cover construction work in progress (CWIP) were not permitted, so the spiraling costs of the power plant had to be covered by Wall Street. Borrowing costs were way higher than currently, the nation was experiencing double-dip inflation. Once the project was finished, costs were to be built into the rates. "Rate shock" was a big concern. For much more on this, see the end part of the ILB entry from August 15, 2010.

Since Marble Hill, the law has been changed and utilities may recover the cost of CWIP under certain conditions. That is the focus of the settlement discussions re the Edwardsport project and its spiraling costs.

[More]
In another story today, Russell writes that James Turner, Duke #2 man, who "took one for the team" by resigning earlier this week, will receive a "farewell package [that] will exceed $10 million."

Posted by Marcia Oddi on Friday, December 10, 2010
Posted to Indiana Government

Thursday, December 09, 2010

Ind. Decisions - Supreme Court issues one opinion late today

In Jeffrey E. Akard v. State of Indiana, a 5-page, 5-0 opinion, Justice Dickson writes:

Although the defendant's raising of sentence reasonableness on appeal authorizes appel-late consideration of whether the assigned sentence is inappropriately stern or lenient, we decline to increase the sentence here, particularly in the context of the State's request for no greater sen-tence at trial and its assertion on appeal that such is an appropriate sentence. These are strong indicators that the trial court sentence is not inappropriately lenient.

Giving due consideration to the trial court's decision, and in light of the nature of the of-fenses shown by the evidence and the lack of demonstrated virtuous character in the defendant, we decline to intervene in the trial court's determination of the appropriate sentence for the de-fendant in this case except for our ministerial correction of the sentence from ninety-three (93) to ninety-four (94) years as noted above.

Having summarily affirmed the decision of the Court of Appeals upon all issues except as to sentence reasonableness, we order correction of the sentences imposed on Counts III, V, VIII, IX, and X, as specified above, resulting in a modification to the aggregate sentence from ninety-three (93) to ninety-four (94) years. With respect to the defendant's challenge to the length of his sentence, we find that the aggregate sentence of ninety-four (94) years is appropriate. This cause is remanded for modification of judgment accordingly.

For background on this case, start with this Nov. 5, 2010 ILB entry.

Posted by Marcia Oddi on Thursday, December 09, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Ethics issue kills a Duke Energy deal on Indiana plant costs"

That is the headline late this afternoon of a story by John Downey in the Charlotte Business Journal. It begins:

Duke Energy has withdrawn a proposed settlement worked out with several Indiana customer groups on approving the new, $2.88 billion price tag for the company's Edwardsport coal gasification plant.

Duke and the customer groups hope to negotiate a new settlement that will not be tainted by the recent ethics inquiries that have rocked Duke and the Indiana Utility Regulatory Commission. * * *

In a filing with the commission today, Duke says Jim Turner, who headed Duke’s regulated utilities, and former Duke Indiana President Mike Reed were part of the team that negotiated the settlement with the Indiana Utility Customer Counsel, the Duke Energy Indiana Industrial Group and Nucor Steel-Indiana.

Here is the Duke Energy press release, headed "Duke Energy Indiana, Consumer Groups Agree to Renegotiate Edwardsport Cost Settlement Agreement." A quote:
"This action is the best path forward for the Edwardsport project at this time," said James E. Rogers, Duke Energy chairman, president and chief executive officer. "While we are disappointed the original settlement is being withdrawn, we understand the parties' desire to negotiate a new settlement that is separate and apart from recent events.

"The support and cooperation of the settling parties is important to us, so we have agreed to re-examine and renegotiate the terms of the cost settlement. The merits of the Edwardsport plant are strong and construction continues to move forward. The total project is about 80 percent complete and we are on track to finish the plant by the fall of 2012."

"The OUCC continues to support the Edwardsport project for the reasons our agency has stated on numerous occasions," said Indiana Utility Consumer Counselor David Stippler. "However, due to recent revelations about communications between Duke Energy and the former IURC chairman, our office has called into question the integrity of the process that led to the settlement agreement. For these reasons, it is appropriate to reopen the negotiation process and take a fresh look at the issues addressed in this case."

The settlement was to be considered by the IURC Dec. 13 and 14. The groups have proposed a new schedule for commission consideration of the revised cost with hearings that -- if approved -- may begin as early as mid-March. Those dates are dependent upon commission scheduling and approval.

Here is John Russell's story for the Indianapolis Star, also filed late this afternoon, headed "Deal on $3B Duke Energy plant comes undone." It begins:
A fragile agreement on cost overruns at Duke Energy Corp.'s coal-gasification plant in Edwardsport has collapsed, at least for now, after some parties raised concerns about the contents of secret e-mails of key players that were recently disclosed in the Indianapolis Star.

The concerns were raised in a filing this afternoon at the Indiana Utility Regulatory Commission.

Today's petition throws into question the future of the $2.9 billion plant, which is about half-built, and whether Duke will be able to recover additional money due to cost overruns.

The key players, including Duke, its large industrial customers and the Indiana Office of Utility Consumer Counselor, filed the petition, saying they want to assess whether a tentative agreement reached in September "remains a reasonable allocation of risks and reward."

This was the CWIP agreement.

[More] Here is the text of the docket entry ordered today in CAUSE NO. 43114 IGCC 4 SI:

You are hereby notified that on this date the Indiana Utility Regulatory Commission ("Commission") has caused the following entry to be made:

On September 17, 2010, Duke Energy Indiana, Inc" the Indiana Office of Utility Consumer Counselor, Duke Energy Indiana Industrial Group, Nucor Steel - Indiana, a division of Nucor Corporation (collectively, the "Settling Parties") filed their Settlement Agreement.

On December 9, 2010, the Settling Parties filed Settling Parties' Joint Notice of Withdrawal of Settlement Agreement and Motion for Continuance of Hearing ("Motion"), The Motion notified the Commission of the Settling Parties' decision to withdrawal the Settlement Agreement reached among the Settling Parties on September 17, 2010 and requested the December 13, 2010 hearing on the Settlement Agreement be converted to an attorneys' conference to discuss a proposed procedural schedule, The other parties, Citizens Action Coalition, Save the Valley, Valley Watch, Sierra Club and Steel Dynamics, Inc, do not oppose the Motion.

The Presiding Administrative Law Judge, having reviewed the Motion and being duly advised in the premises, hereby converts the December 13, 2010 settlement hearing into an Attorneys' Conference to discuss establishing a modified procedural schedule and evidentiary hearing date. The Attorneys' Conference shall commence at 9:30 a.m. on December 13, 2010 in Room 222 of the PNC Building, 101 West Washington Street, Indianapolis, Indiana.

IT IS SO ORDERED.
David E. Veleta, Administrative Law Judge

Posted by Marcia Oddi on Thursday, December 09, 2010
Posted to Indiana Government

Courts - Editorial: Will of voters should not guide judges

The editorial is from the DesMoines Iowa Register. It begins:

[Gov.-elect] Terry Branstad suggested Monday new members of the Iowa Supreme Court should follow the will of voters who removed three justices in the November judicial retention election.

If that means choosing judges based on how they will decide civil rights cases, that is the wrong lesson to draw from the election: Judges should never be discouraged from protecting the rights of minorities based on popular opinion of the electorate.

The Bill of Rights in the Iowa Constitution - as in the federal model - was created to protect minority rights from the tyranny of the majority. If Iowa judges put their fingers into the wind on such cases, as Governor-elect Branstad seems to suggest they should, we might as well replace courts with public referendums.

Though the judicial retention election is over, questions about judicial independence still loom as the State Judicial Nominating Commission prepares to interview candidates to replace the three justices. It is almost certain that process will not be complete until after Branstad takes office in mid-January. Thus, his views on the role of judges in a constitutional government are important.

The editorial concludes:
Branstad also complained Monday about domination of Democrats on the State Judicial Nominating Commission. It's also true that past commissions were larded with Republicans under Republican governors. Branstad will not have an opportunity to shape the commission until next April when two of seven gubernatorial appointees' terms expire. Even then, he should not pick replacements with politics in mind: The constitutional amendment creating Iowa's judicial selection process says explicitly that members shall be chosen "without reference to political affiliation." The best solution is for the commission to do its work as openly as possible so Iowans can judge for themselves whether applicants are selected based on politics or merit.
As if on cue, Indiana attorney Jim Bopp has filed suit in Iowa, challenging their nominating commission. An AP story reports:
IOWA CITY, Iowa (AP) - A lawsuit filed by a conservative activist aims to change the makeup of the panel that will recommend finalists to replace three Iowa Supreme Court justices ousted after legalizing gay marriage.

The lawsuit, filed by conservative Indiana laywer James Bopp, Jr. on behalf of 4 Iowans, asks a federal judge to stop 7 of 15 members of the judicial nominating commission from participating in the selection process.

ILB readers may recall a number of stories earlier this year under the heading "Lawsuit seeks to change how Kansas Supreme Court judges are appointed," culminating in this one from Nov. 4, 2010 reporting that a federal judge had tossed out the suit. A similar suit in Alaska also failed. Both were filed by Mr. Bopp.

Posted by Marcia Oddi on Thursday, December 09, 2010
Posted to Courts in general

Ind. Gov't. - "The U.S. Census Bureau is just days away from releasing data from the decennial census"

Take a look at this video via the Washington Post that explains how the number of representatives per state is decided. But of course that is just the beginning ...

The Post also links to another of its stories, this one From Nov. 23rd, headed "Democrats confront near-extinction in Indiana." The story is part of a series: "The series aims to look forward to how the maps in these states could be drawn and what the best and worst outcomes for each party might be." It discusses some of the intricacies of congressional reappointment in Indiana.

And then there is the drawing of Indiana House and Senate districts ...

Common Cause is having a luncheon seminar Dec. 17th titled "Redistricting 2011: An End to Gerrymandering or More of the Same Political Game?" Panelists include The Honorable Theodore Boehm, Indiana Supreme Court; Dr. Michael McDonald, Associate Professor of Government and Politics at George Mason University; and Virginia Martinez, Esq., Legislative Staff Attorney for the Mexican American Legal Defense and Educational Fund (MALDEF).

Posted by Marcia Oddi on Thursday, December 09, 2010
Posted to Indiana Government

Ind. Gov't. - "Governor names former general counsel to head Alcohol and Tobacco Commission"

From a just-issued press release:

INDIANAPOLIS (December 9, 2010) – Governor Mitch Daniels has appointed Mark Massa as the new chairman of the Alcohol & Tobacco Commission.

Alex Huskey, who has served as interim chair since the resignation of Judge P. Thomas Stone in November, will resume his role as superintendent of the Indiana Excise Police.

Massa was the governor’s general counsel from 2006 until early this year when he resigned to run for Marion County Prosecutor. During that time, he practiced law with the Indianapolis firm Riley, Bennett & Egloff, LLP. Massa also was a law clerk to Indiana Chief Justice Randall T. Shepard, a United States Attorney, and the chief counsel in the Marion County Prosecutor’s office. * * *

Massa will begin his duties on December 13.

Posted by Marcia Oddi on Thursday, December 09, 2010
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 18 NFP)

For publication opinions today (3):

In Brenda Truedell-Bell v. Marion County Treasurer and Auditor, a 6-page opinion, Judge Kirsch writes:

Brenda Truedell-Bell (“Truedell-Bell”) appeals the trial court's denial of her petition for a preliminary injunction to remove her property from the property tax sale pending the outcome of her appeal for property tax reassessment. She raises one issue, which we restate as: whether the trial court had subject matter jurisdiction over Truedell-Bell's petition for a preliminary injunction. We affirm. * * *

In the present case, Truedell-Bell did not follow the proper administrative tax appeal procedure to have her property removed from the tax sale. As her petition arises under the tax law, the Tax Court has exclusive jurisdiction to grant injunctive relief, not the Circuit
6
Court. While we have sympathy with Truedell-Bell's situation and her frustration over the delay in hearing her appeals, the legislature has established a procedure by which the Indiana Tax Court had exclusive jurisdiction to grant injunctive relief here, and not the Circuit Court. By not following the statutory procedure that exists for disputes under the tax law, Truedell-Bell failed to exhaust her administrative remedies, and the Circuit Court did not have jurisdiction. Because the legislature has established an adequate remedy at law, the trial court appropriately denied Truedell-Bell's petition.

In Cavin E. Pogue v. State of Indiana , a 10-page opinion, Judge Bradford writes:
During the summer of 2009, Appellant/Defendant Cavin Pogue was enrolled in a program where he was paid to attend summer school classes at Indianapolis Metropolitan High School (“IMHS”), which is located on property owned by Goodwill Industries in Indianapolis. On July 1, 2009, Pogue came to the IMHS campus to collect compensation due to him for his prior class attendance. IMHS officials did not give Pogue his earned compensation and told him to leave the premises. Pogue refused and was eventually arrested for criminal trespass. Pogue was also arrested for resisting law enforcement after he refused to drop a box cutter that he was holding in his hand.

Pogue was subsequently charged with and convicted of Class A misdemeanor Criminal Trespass1 and Class A misdemeanor Resisting Law Enforcement. Pogue now appeals his convictions, specifically challenging whether the evidence presented during his trial was sufficient to prove the criminal trespass and resisting arrest charges. Concluding on this record that Pogue had a limited contractual interest that gave him the right to be on the property in question at the time of his arrest, we reverse Pogue's conviction for criminal trespass. Further concluding that Pogue's failure to drop the box cutter following a demand to do so by a law enforcement officer amounted to the forcible obstruction of the law enforcement officer's lawful execution of his duties, we affirm Pogue's conviction for resisting arrest.

In State of Indiana v. Richard J. Laker, Jr. , a 12-page, 2-1 opinion, Judge May writes:
The instant case is similar to Gebhard because Laker’s charging information for Count I merely quoted the statute, and did not specify whether he was alleged to have operated the farm tractor or the Lexus. Laker could not prepare a defense without that knowledge. That Laker moved to dismiss this charge on the ground a farm tractor was not a “motor vehicle” and because he was prohibited from operating while suspended demonstrates the information did not “specify the facts and circumstances which inform the accused of the particular offense coming under the general description with which he is charged.” Id. at 60. Thus we cannot find the court erred by dismissing Count I.

The charging informations for Counts II, III, and IV were virtually identical in structure to Count I. Each reiterated the statute under which Laker was charged, but did not contain specific details of the alleged crime. Because those charges did not inform Laker whether he needed to defend against operating the Lexus or the farm tractor, the charges were deficient in the same way as the charging information for Count I. Therefore, the trial court did not err in dismissing the charges against Laker, and we affirm.

ROBB, J., concurs
VAIDIK, J., concurs in result in part and dissents in part with opinion. [that concludes] As a farm tractor is not a “motor vehicle” for purposes of driving while privileges are suspended, I would find that the State has failed to allege facts constituting the offense of driving while privileges are suspended and that Count I was properly dismissed. But since a farm tractor is not excluded from the definition of “vehicle” for purposes of operating while intoxicated, I would find that the OWI counts are sustainable and that the trial court erred by dismissing them.

For these reasons I would affirm the trial court’s dismissal of Count I but reverse its dismissal of Counts II, III, and IV. I therefore concur in result in part and respectfully dissent in part.

[ILB update] This opinion was VACATED by the COA on Dec. 13, 2010.

NFP civil opinions today (6):

David M. Burks-Bey v. Tippecanoe County Jail (NFP)

In the Matter of B.D., Alleged to be CHINS; S.D. v. IDCS (NFP)

Kimberly Covey v. Steven Covey (NFP)

Jean Lukes v. Lisa Moore (NFP)

Susan Kirk v. Aaron Kirk (NFP)

Term. of Parent-Child Rel. of A.C., et al.; T.C. and J.C. v. I.D.C.S. (NFP)

NFP criminal opinions today (12):

Lashann Montez Winfield v. State of Indiana (NFP)

James A. Bridges v. State of Indiana (NFP)

Phyllis A. Merriweather v. State of Indiana (NFP)

Purcell Turner, Jr. v. State of Indiana (NFP)

Donald Lee Smith v. State of Indiana (NFP)

Felecia M. Rorer v. State of Indiana (NFP)

Tyson D. Warner v. State of Indiana (NFP)

Carlos M. Drane v. State of Indiana (NFP)

Troy Flanagan v. State of Indiana (NFP)

Shanta Vance v. State of Indiana (NFP)

Lewis Jerome McNeary v. State of Indiana (NFP)

James K. Bohannon v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 09, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - IURC applicant interviews tomorrow [Updated]

See this Dec. 4, 2010 ILB entry for background. The interviews will be all day tomorrow. The ILB assumes they will be public, but has not seen information on where they will be held, or whether they will be videocast.

[Updated] Here is some information, but it is not clear what is happening on the 9th (today) and and what is happening tomorrow. Where is the schedule of interviews? And apparently no videocast is contemplated.

Posted by Marcia Oddi on Thursday, December 09, 2010
Posted to Indiana Government

Ind. Decisions - "LED billboard wins court approval"

The Dec. 7, 2010 COA opinion in Porter County Board of Zoning Appeals v. Lamar Advertising Northwest Indiana (NFP) is the subject of a story today in the Gary Post Tribune. Some quotes from Christin Nance Lazerus' report:

A recent court decision allows an LED billboard to keep lighting up the night in Valparaiso.

The Indiana Court of Appeals upheld the granting of a billboard improvement permit near U.S. 30 and Joliet Road.

In 2007, Lamar Advertising Northwest Indiana requested a permit to replace an existing billboard with an electronic sign near U.S. 30 and Joliet Road in Valparaiso.

Porter County Planning Commission Executive Director Bob Thompson denied the permit, and the BZA affirmed the denial upon Lamar's appeal. Porter County Superior Court Judge Roger Bradford ruled in Lamar's favor at the trial court level and approved the permit.

Thompson said several requests came in around that time because the county was in the process of updating its sign ordinance. The current ordinance, passed in 2007, is more restrictive for electronic signs.

The BZA rejected the permit because an ordinance at the time allowed only one poster panel on the face of a sign.

"I argued that the sign was an electronic digital and not posterboard, but the courts disagreed," Thompson said.

The BZA stated it was denying the permit for safety and welfare reasons, particularly that it would be distracting to drivers, Thompson said.

The billboard would display six different advertisements at 10-second intervals, and brightness could be adjusted for weather conditions.

Posted by Marcia Oddi on Thursday, December 09, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - "Indiana Republicans seeks to enact abortion restrictions: Governor had wanted to focus on fiscal, not social issues"

Mary Beth Schneider of the Indianapolis Star reports today in a lengthy story that begins:

Abortion foes, strengthened by the November election that put Republicans in charge of the Indiana legislature, will seek measures to restrict both the procedure and those who perform it.

Among the bills being proposed: banning abortion after 20 weeks of pregnancy, and barring Planned Parenthood of Indiana from receiving taxpayer dollars.

Sen. Greg Walker, R-Columbus, and Rep. Wes Culver, R-Goshen, recently sent a letter to senators and representatives, as well as to Gov. Mitch Daniels, outlining their plans.

It likely isn't what Daniels wanted to hear.

Earlier this year, he said there should be a "truce" on social issues so that the nation can focus on fiscal issues. And when he detailed his agenda for the legislative session that begins Jan. 5, it focused on the budget, education and government reforms. Social issues such as abortion weren't on it, and Daniels said his ambitious list contained "the most important things."

Posted by Marcia Oddi on Thursday, December 09, 2010
Posted to Indiana Law

Ind. Law - "Sharia law not an issue in Indiana — or any other state"

From an editorial today in the Terre Haute Tribune-Star that begins:

The Indiana legislature faces a full plate of important issues in its upcoming 2011 session. The far-fetched fear of Sharia law — a strict interpretation of Muslim law — overriding the U.S. or state constitution in Indiana courts is not one of those crucial issues. It’s not even worthy of backburner status, especially amid education funding and reform proposals, jobs creation, local government restructuring and ethics, and health care.

Last week, Rep. Bruce Borders, a Jasonville Republican, said he intended to file a bill in the Indiana House to prevent the recognition of Sharia law in Indiana courts. Borders said he was acting on an idea by state Sen. John Waterman, R-Shelburn.

The bill, Borders said, would proclaim “that Indiana does not recognize Sharia law, or Muslim law. What that boils down to is there is a push in some states to recognize Sharia law with its own court system, as opposed to a state constitution or the U.S. Constitution.”

The problem is, this isn’t a problem. It’s not a problem in Indiana. It’s not a problem anywhere in the United States, including Oklahoma, the state that apparently sparked Waterman’s interest. Last month, Oklahomans overwhelmingly approved an amendment to their constitution to prohibit state courts from considering international law or Islamic law when deciding cases.

The editorial ends:
The one unmistakable reality in this situation is that religious freedom is clearly protected under the Constitution. Muslims should not be singled out. The paranoid political atmosphere helped drive the Oklahoma vote, with the amendment getting 70-percent approval. Indiana lawmakers should not get swept up in such a needless venture. Incoming House Speaker Brian Bosma, R-Indianapolis, wisely imposed a 10-bill limit on House members to keep them focused on balancing the budget when the General Assembly gathers on Jan. 5. Borders’ bill would be nothing more than a distraction from that.

Posted by Marcia Oddi on Thursday, December 09, 2010
Posted to Indiana Law

Courts - "On aliens, Arizona may win — for now"

So writes Lyle Denniston of the SCOTUSblog. Denniston's analysis begins:

States and cities may gain added power to take some steps to control the lives of illegal aliens, if the hints that emerged in a Supreme Court hearing Wednesday shape the Justices’ final reaction to an Arizona law. But that added authority might well rest on a thin reed: a 4-4 split among the Justices that would not control the next time such an alien control law came before the Court. Those prospects loomed as the Court spent an hour examining U.S. Chamber of Commerce v. Whiting (09-115), but without Justice Elena Kagan on the bench.
For background see this ILB entry from April 20, 2010 headed "Is Arizona's new immigration law constitutional?" See also this entry from Sept. 10, 2008, headed "Indiana legislators tackle illegal immigration again."

From yesterday's WSJ Law Blog, an entry headed "High Court Appears Poised to Uphold Arizona Immigration Law."

Posted by Marcia Oddi on Thursday, December 09, 2010
Posted to Courts in general

Ind. Decisions - Another attorney disciplined

The ruling, In the Matter of Hiroaki Nishikawara, dated Dec. 3, 2010, was posted on the Court's website yesterday. It was picked up this morning by Law.Com, under the heading "Barnes & Thornburg attorney disciplined for hiring prostitute." Leigh Jones writes:

The Indiana Supreme Court has publicly reprimanded a Barnes & Thornburg attorney for patronizing a prostitute in February.

Hiroaki Nishikawara, of counsel in the law firm's Indianapolis office, received the reprimand after the court approved an agreement between him and the state's attorney disciplinary commission. Nishikawara entered into a plea agreement for committing a class A misdemeanor. The agreement required him to perform six hours of community service and attend an impact panel proceeding. The court noted that he had completed the requirements and had no prior criminal history. * * *

Nishikawara, who graduated from Indiana University School of Law-Indianapolis in 2004, began working at the firm in its summer associate program in 2003. His practice focuses on labor and employment law.

Posted by Marcia Oddi on Thursday, December 09, 2010
Posted to Ind. Sup.Ct. Decisions

Wednesday, December 08, 2010

Ind. Decisions - Supreme Court issues one today

In Dannie Ray Runyon v. State of Indiana, a 7-page, 4-1 opinion posted late this afternoon, Justice Dickson writes:

This appeal challenges the trial court's revocation of probation for failure to pay child support. The Court of Appeals affirmed. Runyon v. State, 923 N.E.2d 440 (Ind. Ct. App. 2010). We granted transfer to clarify the applicable burden of proof. On the facts of this case, we affirm the trial court's decision to revoke probation and reinstate a significant portion of the original sentence. * * *

"Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled." Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). "Once a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed." Id. A trial court's probation decision is subject to appellate review for abuse of discretion "where the decision is clearly against the logic and effect of the facts and circumstances." Id.

We decline to find the trial court's decision to require the defendant to serve six years of the eight-year sentence to be an abuse of discretion. We also note the judge's compassionate invitation for the defendant to seek a future modification after making substantial payment on the obligations or possibly upon obtaining the promise of employment.

The judgment of the trial court is affirmed.

Shepard, C.J., and Rucker, and David, JJ., concur.
Sullivan, J., dissents with separate opinion. [that begins] agree with the Court’s discussion of the allocation of the burden of proof in such proceedings, but I respectfully dissent both from its conclusion that the State met its burden and from its conclusion that Runyon did not.

Posted by Marcia Oddi on Wednesday, December 08, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - More on: 9th Circuit Prop. 8 oral argument online

Updating this ILB entry from Dec. 6th, Ashby Jones of the WSJ Law Blog had an entry yesterday on how the telecast argument advanced the call for televised federal appeals. The entry begins:

The Proposition 8 arguments that took place on Monday were among the most high-profile televised federal-court proceedings we’ve ever seen.

And what was the verdict? Did the hearings advance or hurt the cameras-in-the-court debate?

We only watched a bit of the hearing. But from where we sat, the whole cast of characters was pretty impressive. From David Boies to Charles Cooper to Ted Olson to all three judges, the players all came across as prepared and thoughtful, smart and serious. It was the legal system put on full display, and the legal system acquitted itself very well, we thought.

Over at the Los Angeles Times, writer Tim Rutten largely seemed to agree, finding the the arguments Exhibit A on why cameras-in-the-federal courts is an idea long overdue.

Posted by Marcia Oddi on Wednesday, December 08, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)

For publication opinions today (3):

In Phillip Forman v. Wayne Penn, et al. , a 6-page opinion, Sr. Judge Boehm writes:

This is an appeal from the grant of summary judgment to Western Reserve Mutual Casualty Company, finding that it had no duty to supply a defense to claims asserted against its insured and others. Several issues in this case remain unresolved by the trial court, and this appeal is neither certified for interlocutory appeal by the trial court nor authorized as an appeal from a final judgment pursuant to Trial Rule 54(B). For the reasons explained below, this appeal is dismissed. * * *

As a threshold matter, the parties do not address the question of whether the trial court’s ruling on Western Reserve’s summary judgment motion is an appealable order. * * *

In any event, in Martin v. Amoco Oil Co., 696 N.E.2d 383, 385 (Ind. 1998), the Indiana Supreme Court established a “bright line” rule enforcing the requirement of compliance with Trial Rule 54(B) before an appeal may be taken as of right from a trial court ruling that does not dispose of all claims. The Supreme Court specifically rejected the “separate branch” doctrine developed in some cases in this Court that permitted appeals of orders disposing of portions of lawsuits deemed sufficiently independent of the remaining issues to warrant a direct appeal. Id. We are bound by that precedent.

To be sure, the interests of justice may well suggest that the trial court in this case should provide the necessary “magic language” required by Trial Rule 54(B). * * * But Trial Rule 54(B) leaves that decision in the hands of the trial court in the interest of certainty as to whether an appeal lies or not. The parties should not be left to guess whether an order is appealable. Inclusion of the language required by Trial Rule 54(B) not only confers the right to appeal, it starts the clock running on the time within which an appeal must be taken. * * *

This appeal is dismissed. As in Rayle, the parties are free to seek an amendment of the trial court’s order if they wish to pursue an appeal at this stage of the proceedings.

Kerry Reinhart v. Kelli Reinhart - "[T]he existing support order was entered pursuant to an Agreement mediated between the parties. In that Agreement Father acknowledged that the agreed support amount exceeded the amount that would be required under the Guidelines. Thus, as we concluded above, in order to obtain a modification under Section 31-16-8-1(2), Father was also required to show a substantial and continuing change in circumstances. But Father has not demonstrated or even argued the existence of a substantial and continuing change of circumstances to this court.3 Thus, Father has not shown that the trial court abused its discretion when it denied his motion to modify. Affirmed."

In Dustin Haynes v. State of Indiana , a 9-page opinion, Judge Riley writes:

Appellant-Defendant, Dustin Haynes (Haynes), appeals his conviction for operating a motor vehicle while privileges are forfeited for life, a Class C felony, Ind. Code § 9-30-10-17. We affirm. * * *

Haynes argues that the trial court abused its discretion in denying his motion to suppress evidence. Specifically, Haynes contends that Officer McCollum had no reasonable suspicion to stop Haynes because he did not commit any traffic violations. Thus, Officer McCollum had no authority to detain Haynes. * * *

[W]e find that Officer McCollum had reasonable suspicion to stop Haynes and therefore the stop was legal. The Officer personally observed that Haynes' car was illegally parked in the handicap spot. The car had no handicap license plate and no visible permits inside. By the time the Officer confirmed his suspicion, Haynes backed out of the handicap spot and drove off onto the street. To enforce the parking violation, Officer McCollum followed the driver and stopped him later on the street.

NFP civil opinions today (4):

Brandi Terry v. Damien Terry (NFP)

Tamra A. Thompson v. Duane Thompson (NFP)

J.R. v. Review Board (NFP)

In the Matter of B.N., Alleged to be CHINS; K.S. and R.S. v. IDCS (NFP)

NFP criminal opinions today (10):

Andre Goodman v. State of Indiana (NFP)

Dillion Yakym v. State of Indiana (NFP)

Paul Fox v. State of Indiana (NFP)

Steven Brown v. State of Indiana (NFP)

George Feltner, Jr. v. State of Indiana (NFP)

David A. Terry v. State of Indiana (NFP)

Robert Anthony Solomon v. State of Indiana (NFP)

Kurtis Reynolds v. State of Indiana (NFP)

Dmitriy V. Sklyarov v. State of Indiana (NFP)

Merle Hawkins v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 08, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "$15 million verdict given in fatal crash on Toll Road"

Rebecca S. Green of the Fort Wayne Journal Gazette reports today:

FORT WAYNE – A federal judge awarded more than $15 million to the family of one of the men killed in a 2005 Toll Road crash caused by an intoxicated truck driver.

In a court order issued Monday by U.S. District Judge Theresa L. Springmann in Fort Wayne against Net Trucking, the judge awarded the money to the wife, son and estate of Dimitry B. Karpov, closing out a lawsuit that has been pending for years in the quadruple-fatal crash. * * *

According to court documents, Gil was intoxicated and the company for which he worked, Net Trucking, doctored its log books to conceal the fact he had been driving longer than he was allowed under federal law.

Springmann also found the company engaged in fraudulent conveyance, with company officials hiding assets and conveying property a few months after the crash, according to court documents.

In February, Springmann found Net Trucking in default after the company failed to make a single motion or pleading after its lawyer withdrew in the summer of 2009. The company failed to appear at subsequent hearings as well, including a July hearing on damages, according to court documents.

Springmann awarded about $6.7 million as compensatory damages for Dimitry Karpov’s wrongful death, $2.1 million as compensatory damages for Margarita Karpov’s personal injuries and $6.3 million in punitive damages, according to court documents.

Here is the opinion, filed 12/6/10, in Karpov v. Net Trucking.

Posted by Marcia Oddi on Wednesday, December 08, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Millions of records going digital" in Fort Wayne

Benjamin Lanka reports today in the Fort Wayne Journal Gazette:

Fort Wayne hopes to spend $250,000 to begin digitizing its millions of paper records.

The City Council on Tuesday approved a contract with HOV Services to scan and index nearly 2.7 million documents for four city departments to make them available electronically on the city’s computer system.

Jim Haley, city information technology director, said the vendor will digitize a portion of the records for the city’s human resources, payroll, benefits and community development departments.

The work is needed in part because of the city’s pending move to Renaissance Square, 200 E. Berry St. It would be nearly impossible to physically move all the documents to the building, he said.

The contract would just be a start for the city, Haley said, as there will be countless other records to digitize. He said when the process begins, it is difficult to go back to keeping paper records.

Posted by Marcia Oddi on Wednesday, December 08, 2010
Posted to Indiana Government

Ind. Decisions - "A Harris test case? Seventh Circuit affirms extraordinary sentencing factor enhancement"

Sentencing Law & Policy Blog has this entry re a case of out of Illinois. The post begins:

Among the many "quirks" in the modern Apprendi/Blakely Sixth Amendment jurisprudence from the Supreme Court is the Harris mandatory minimum exception to the rule requiring jury findings of important sentence-enhancing facts. This "quirk" in on full display in the Seventh Circuit's fascinating ruling today in US v. Krieger, No. 09-1333 (7th Cir. Dec. 7, 2010), in which a panel affirms a 20-year mandatory minimum sentence based on judicial fact-finding about the defendant's drug crime resulting in a friend's death.

Posted by Marcia Oddi on Wednesday, December 08, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on "IURC review supports law judge's rulings"

Kudos to the IURC for quickly posting online the materials relating to their internal audit of Duke Energy cases presided over by former Administrative Law Judge Scott Storms. Take a look at this comprehensive page with links to a wealth of materials, laid out in a clear, easy to follow manner.

From near the end of the page, under the heading "Archived Webcast"

On November 3, the Commission held a six-hour Technical Conference concerning the parties' prefiled evidence regarding Duke Energy Indiana's Integrated Resource Plan (IRP) as it relates to the continuing need for the Edwardsport IGCC project. An IRP forecasts a utility’s long-term and short-term energy demand needs and how it plans to meet them through various alternatives.

At the Technical Conference, there was a wide ranging discussion about the continued need for the Edwardsport IGCC project, both pro and con, by parties while under oath. James Roger, CEO for Duke Energy, was among the witnesses who testified and answered questions from the Commission and other parties to the case. Parties included: the Citizens Action Coalition of Indiana, the Indiana Industrial Group, and the Office of Utility Consumer Counselor.

For the first time in the Commission's history, the Technical Conference was broadcast live over the Internet.

Here is hoping these efforts at responsiveness and transparency will continue, even when there is no crisis.

The centerpiece of the page is the "Internal Audit of Duke Energy Cases Presided over by Former Administrative Law Judge Scott Storms." Access the 90-page PDF document directly here.

The audit is interesting reading, containing much useful background on IURC internal procedures. Items #6 and #7 on "p. 7 of 86" are of the most interest -- the Edwardsport cases and the subdockets to address ongoing cost recovery associated with construction work in progress.

A section on "Commission Function and Structure" begins on "p. 8 of 86." A quote from p. 9 under the subheading "Internal Safeguards":

There are multiple internal safeguards to protect the process from any undue influence in the cases from any one individual, including ALJ Storms. For example, a Commissioner was assigned to every Duke case. This Commissioner, and sometimes additional Commissioners, participated in every hearing with ALJ Storms and had the authority as the Presiding Commissioner to dispute any of his rulings or questions.

In addition, the assigned Commissioner signed the majority of docket entries in tandem with ALJ Storms. Even if the Commissioner did not sign them, it is Commission policy only to send out a docket entry without a Commissioner’s signature if it is a noncontroversial routine matter or the Commissioner is absent and the docket entry is essential to the case.

Finally, with regard to Orders, an ALJ never has the authority to approve an Order. Only the Commissioners, by majority vote, may approve it. Internally, before an Order is even circulated to all of the Commissioners for review, the Order is first reviewed by the Commissioner on the case and technical staff. In cases of the magnitude of these Duke proceedings, multiple technical staff related to the industry involved are assigned; at minimum, two technical staff are assigned to each case.

My question here would be, who was the Commissioner that Storms worked with on the Edwardsport cases?

As to who wrote this report, that question is answered in detail at the bottom of p. 2 of 86 -- Current Assistant General Counsel DeAnna Poon," who "was never previously assigned to any Duke proceedings" and whose "entire legal career has been spent in service to State government," mostly outside the IURC.

John Russell's updated story on the audit is in this morning's edition of the Indianapolis Star. Some quotes:

The review found that in all but one case, Storms went by the book when he presided over utility cases pertaining to Duke and concluded that he "did not deviate" from standard legal practice in most cases. In only one instance, a case involving an ice storm last winter that caused damage to Duke equipment, did Storms rule favorably for the company, despite a neutral recommendation by the IURC's staff, the report said.

The commission said it would reopen that case, in which Duke won the ability to seek an unspecified rate increase later to cover the damage.

But the audit examined only technical rulings, not broad ethical questions that still loom over the entire affair. Questions still remain about the timing of Storms' initial discussions with Duke about a job and what Duke matters he was handling for state regulators before he recused himself from all Duke affairs.

The IURC referred all ethical questions to the Indiana inspector general's office, which is investigating the matter and declined to comment Tuesday. The FBI also is investigating the matter. No one has been charged with a crime.

"This audit did not review e-mails of a personal nature or e-mails regarding employment and does not opine on the propriety of those communications," the IURC report said.

The review found that in all but one case, Storms went by the book when he presided over utility cases pertaining to Duke and concluded that he "did not deviate" from standard legal practice in most cases. In only one instance, a case involving an ice storm last winter that caused damage to Duke equipment, did Storms rule favorably for the company, despite a neutral recommendation by the IURC's staff, the report said.

The commission said it would reopen that case, in which Duke won the ability to seek an unspecified rate increase later to cover the damage.

But the audit examined only technical rulings, not broad ethical questions that still loom over the entire affair. Questions still remain about the timing of Storms' initial discussions with Duke about a job and what Duke matters he was handling for state regulators before he recused himself from all Duke affairs.

The IURC referred all ethical questions to the Indiana inspector general's office, which is investigating the matter and declined to comment Tuesday. The FBI also is investigating the matter. No one has been charged with a crime.

"This audit did not review e-mails of a personal nature or e-mails regarding employment and does not opine on the propriety of those communications," the IURC report said.

Posted by Marcia Oddi on Wednesday, December 08, 2010
Posted to Indiana Government

Tuesday, December 07, 2010

Law - "As Bullies Go Digital, Parents Play Catch-Up"

What's a mother to do? That is the focus of this very long NY Times article from Dec. 4, 2010, reported by Jan Hoffman. Here is a sample:

It is difficult enough to support one’s child through a siege of schoolyard bullying. But the lawlessness of the Internet, its potential for casual, breathtaking cruelty, and its capacity to cloak a bully’s identity all present slippery new challenges to this transitional generation of analog parents.

Desperate to protect their children, parents are floundering even as they scramble to catch up with the technological sophistication of the next generation.

Like Marie, many parents turn to schools, only to be rebuffed because officials think they do not have the authority to intercede. Others may call the police, who set high bars to investigate. Contacting Web site administrators or Internet service providers can be a daunting, protracted process.

When parents know the aggressor, some may contact that child’s parent, stumbling through an evolving etiquette in the landscape of social awkwardness. Going forward, they struggle with when and how to supervise their adolescents’ forays on the Internet.

Posted by Marcia Oddi on Tuesday, December 07, 2010
Posted to General Law Related

Ind. Gov't. - "IURC review supports law judge's rulings"

So reports The IndyStar's John Russell about the just-completed internal IURC investigation of Scott Storms' rulings while sitting as ALJ on Duke Energy matters. The story, which will appear in expanded version in tomorrow's paper, begins:

Under fire for a growing ethics scandal involving Duke Energy Corp., the Indiana Utility Regulatory Commission said today said it has wrapped up an internal investigation into the matter, concluding that a former administrative law judge "did not deviate" from standard legal practice in most cases.

In only one case, involving storm damage from last winter to Duke equipment, did the investigation not draw any conclusion, saying the issue needs to be studied further.

Posted by Marcia Oddi on Tuesday, December 07, 2010
Posted to Indiana Government

Ind. Decisions - NFP yesterday, FP today from Tax Court

Perhaps wrapping up before his retirement at the end of the month, Judge Fisher issued one NFP yesterday and a FP today.

In Shelby County Assessor v. Shelby's Landing-II, LP (NFP), a 9-page opinion, Judge Fisher affirms the final determination of the Indiana Board of Tax Review:

The act of valuing real property requires the formulation of an opinion; it is not an exact science. When there are competing opinions as to how a property should be valued, the Indiana Board determines which opinion is more probative. That determination is, essentially, the result of how effectively each party has persuaded the Indiana Board that its evidence is more credible and reliable than that of the other. Here, the Indiana Board’s final determination plainly evidences that it found Shelby LP’s overall evidentiary presentation to be more persuasive than that of the Assessor’s. In presenting her arguments on appeal, the Assessor essentially asks the Court to reweigh the evidence and find in her favor. This, however, the Court cannot do. Given that the Indiana Board’s final determination is supported by substantial evidence, this Court cannot say that it erred in valuing Shelby LP’s two apartment complexes at $3,742,500 for the year at issue.
In Indiana Dept. of Revenue v. Estate of Bernard A. Daugherty, a 14-page opinion, Judge Fisher writes:
The Indiana Department of State Revenue, Inheritance Tax Division (Department) appeals the Knox Circuit Court’s (probate court) order determining the inheritance tax liability of the Estate of Bernard A. Daugherty (Estate). The Estate has filed a cross-appeal. These appeals present three issues for the Court’s review: I. Whether the probate court erred in denying the Estate’s motion to dismiss; II. Whether the probate court’s conclusion that it lacked subject matter jurisdiction over the Estate’s counterclaim was in error; and III. Whether the probate court erred in approving twelve deductions for farming-related expenses pursuant to Indiana Code § 6-4.1-3-13. * * *

For the above stated reasons, the Court AFFIRMS, in part, and REVERSES, in part, the probate court’s order. The Court therefore REMANDS the case to the probate court for calculation of the proper amount of inheritance tax and interest due from the Estate, consistent with this opinion.

Posted by Marcia Oddi on Tuesday, December 07, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Courts - More on "Hospital asks court to silence woman's criticism of patient care"

Updating this ILB entry from Nov. 16, 2010, which quoted a NWI Times story that began:

CROWN POINT | Sisters of St. Francis Health Services has filed a defamation suit against a Crown Point woman who e-mailed comments critical of patient care to family and friends.
This Dec. 2, 2010 story by Susan Brown of the Times is headed "Court denies injunction in Sisters of St. Francis Health Systems free speech case."

Thanks to Ogden on Politics, which posted this entry on the case today -- I'd somehow missed the Dec. 2nd story.

Posted by Marcia Oddi on Tuesday, December 07, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)

For publication opinions today (4):

Donald E. Williams v. State of Indiana - "Donald Williams appeals the revocation of his placement in home detention. Williams raises one issue, which we revise and restate as whether the trial court abused its discretion by admitting a urinalysis report and a home detention monitoring report into evidence. We affirm."

In Nikki Brindle v. Patrick J. Arata , a 5-page opinion in a case with a pro se appellant, Judge Bradford writes:

Appellant/Defendant Nikki Brindle appeals from the trial court's determination that certain funds in her bank account were subject to attachment to satisfy a judgment in favor of Appellee/Plaintiff Patrick Arata. Because we conclude that the student loan funds at issue here may not be attached to satisfy a judgment, we reverse. * * *

The trial court concluded that Brindle's student loan funds lost their exempt status when she deposited the funds in her private account, on the basis that there was no federal law specifically saying that they retained their exempt status when so disposed of. We do not reach the same conclusion.

Simply put, the plain language of section 1095a exempts student loan funds and property traceable to those funds from garnishment or attachment, and there is no provision to which either party points us, or of which we are aware, that terminates this status, whether by deposit in a personal bank account or otherwise. Moreover, neither party directs our attention to any case law that might support a conclusion that deposit in a bank account automatically terminates the exempt status of student loan funds under federal law.

In Term. of Parent-Child Rel. of J.O.; A.A. & S.O. v. I.D.C.S. , a 15-page, 2-1 opinion, Judge Riley writes:
Appellant-Respondent, S.O. (Father), appeals the trial court's involuntary termination of his parental rights to his minor child, J.O. We reverse.

Father presents several issues for review, only one of which we find dispositive and which we restate as follows: Whether Father was denied procedural due process when the Indiana Department of Child Services, Porter County (PCDCS), failed to provide Father with notice of all hearings and copies of all orders and other documents issued during the child in need of services (CHINS) proceedings despite PCDCS's actual knowledge of Father's name and whereabouts. * * *

BAILEY, J., concurs.
KIRSCH, J., dissents with separate opinion. [that begins, at p. 14] I fully agree with my colleagues' conclusion that Father was denied due process during the CHINS proceeding. Indeed, I would be harsher in my criticism of the Porter County Office of Child Services and its knowing and repeated failure to provide Father with the rights due to him. That said, I do not believe that such failures deprived Father of procedural due process with respect to the termination of his parental rights.

In M.S. v. C.S. , a 16-page opinion, Judge Mathias writes:
The Bartholomew Superior Court vacated its previous order granting M.S. joint legal custody of and parenting time with S.S., a child born to C.S., M.S.‟s former domestic partner. M.S. appeals and raises three issues, which we reorder and restate as follows: I. Whether the trial court erred in vacating its prior custody and visitation order; II. Whether the trial court abused its discretion by modifying custody of S.S. without a petition to modify or a showing of a substantial change in circumstances; and III. Whether the trial court abused its discretion in denying M.S. parenting time. We affirm. * * *

The trial court properly vacated its September 5, 2007 order because the order was void ab initio. Because the September 5, 2007 order was a legal nullity, there was no existing custody or visitation order for the trial court to modify. Finally, the trial court did not abuse its discretion in denying visitation to M.S.

NFP civil opinions today (6):

Paul Schulz v. Karen Spoor (NFP)

Billy J. Lemond v. Allan Finnan, et al. (NFP)

County Prosecutor's Office, et al. v. J.D., et al. (NFP)

Carol Long-Switalski v. Wendeline Switalski (NFP)

Rick J. Deeter v. Haynes International, Inc. (NFP)

Porter County Board of Zoning Appeals v. Lamar Advertising Northwest Indiana (NFP)

NFP criminal opinions today (11):

Brian K. Ruby v. State of Indiana (NFP)

Erica Williams-Darden v. State of Indiana (NFP)

Scott R. Jones v. State of Indiana (NFP)

Christopher Edwards v. State of Indiana (NFP)

Jose Caballero v. State of Indiana (NFP)

Ronald Cox v. State of Indiana (NFP)

Emilio Mitchell v. State of Indiana (NFP)

Elbert R. Wright v. State of Indiana (NFP)

Jeffrey Leonard McCrory v. State of Indiana (NFP)

Keith Billingsley v. State of Indiana (NFP)

Charles J. Gooch v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 07, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on "Court rules for surveyor in drainage turf fight"

As promised in this entry from yesterday, here is Clark Co. Sup. #1 Judge Carmichael's Nov. 23, 2010 Order Granting Summary Judgment for Plaintiff in the case of Robert Isgrigg v. Clark County Drainage Bd.

The ILB has also received some background documents:

From 2008:

From 2009:

To understand the above, it may be useful to look at the Chronological Case Summary of Case No. 10D01-0807-PL-000595. Note, however, that as of this writing, the last item on the CCS is: "10/18/2010 Pretrial Conference (9:00 AM) (Judicial Officer Carmichael, Vicki L) ."

Posted by Marcia Oddi on Tuesday, December 07, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "School funding hard to figure: FWCS’ budget next year only 54 percent of Indy’s"

In this Dec. 5, 2010 story in the Fort Wayne Journal Gazette, reporter Angela Mapes Turner makes a valiant effort to explain school funding. A sample:

As districts lose students, they also lose funding, but not right away; there’s a cushion built in so schools can gradually adjust to declining budgets, Kenley said.

The formula used for the 2009 two-year state budget brought the two districts closer to what Fort Wayne district officials thought was equitable funding. But a new calculation in the formula, added during the final hours of the budget-crafting session, resulted in $238 million in additional funding for a majority of school districts.

The new calculation resulted in Indianapolis being the biggest recipient of the additional money – $12.3 million in 2010 and $19.1 million in 2011, according to the Legislative Services Agency. The other large urban district, Gary, received $9.6 million for 2011. Fort Wayne schools received none of the grants, nor did about a quarter of the state’s school districts this year.

[Sen. Luke Kenley, R-Noblesville, chairman of the state budget and the Senate Appropriations committees and the legislature’s budget architect], among the legislative leaders who negotiated the final budget, said he gave in to those calling for so-called “restoration grants” in the spirit of moving the process forward. But he said the grants were driven by Indianapolis lawmakers.

“I felt that it had an unfair element in it,” he said.

So did Fort Wayne Community Schools, which has been decrying the grants ever since. The 2009 budget process made the funding process more equitable, district spokeswoman Krista Stockman said, only to include a windfall for certain districts in the end.

“We’re underfunded. We get brought up,” she said. “Other districts get more. Well, then we’re underfunded again.”

Posted by Marcia Oddi on Tuesday, December 07, 2010
Posted to Indiana Government

Ind. Gov't. - More on "Second-highest paid executive at Duke Energy Corp. has resigned"

Updating this story from yesterday, today's Indianapolis Star has the expanded, front-page story, headed "E-mail scandal topples Duke Energy's James Turner: Turner quits over e-mails to regulator," reported by John Russell.

Posted by Marcia Oddi on Tuesday, December 07, 2010
Posted to Indiana Government

Ind. Law - "Online sales tax skipping targeted: States seek better ways to collect from shoppers"

Sales tax collections on out-of-state purchases are the subject of this lengthy Dec. 5, 2010 story by Lesley Stedman Weidenbener, published in the Louisville Courier Journal. Some quotes:

[Jessica Morris] didn't know that Indiana law requires her to add up those online purchases and pay a use tax when she files her returns in April. That use tax — equal to the state's 7 percent sales tax — must be paid on any items for which sales taxes weren't collected.

Morris isn't alone in being unaware of the levy.

Kentucky and most other states have similar laws, but few taxpayers comply, said Neal Osten, director of the Washington office of the National Conference of State Legislatures.

“It's very difficult to collect” from consumers, Osten said. “It's very hard for taxpayers, too. You try to keep track of what you're buying. You might make a guess. But because online shopping has become so convenient, it's hard to keep track.”

Of the nearly 1.7 million tax returns filed last year in Kentucky, only 11,501 reported use taxes. Kentuckians acknowledged they owed about $662,000 for online and catalog purchases where no sales tax was collected.

In Indiana, only 24,000 taxpayers — out of 3.1 million people who filed returns — reported use taxes totaling about $1.4 million.

States have few ways to track down tax-skipping shoppers. In Indiana, they generally aren't detected unless their returns are audited, said Revenue Department spokeswoman Stephanie McFarland. * * *

To combat that problem, several states began working with the National Conference of State Legislatures to create the streamlined sales tax, a system by which all online and catalog retailers could voluntarily collect taxes and remit them to states. States that join the project make changes to their sales-tax laws to make collections easier for online retailers to administer.

Two dozen states — including Kentucky and Indiana — are members, and the project is starting to pay dividends. More than 1,800 online businesses are now voluntarily collecting taxes under the program. Last year, Indiana collected about $25 million.

But many of the largest online retailers, including Amazon, have refused to participate, complaining that it's complicated to keep track of all the different state tax rules. So states are pushing Congress to require it.

“There was a bill last summer, but it didn't go anywhere in Congress because the Republicans and the Democrats were refusing to cooperate on anything,” said Indiana Senate Appropriations Chairman Luke Kenley, a Republican who is the incoming president of the national Streamline Sales Tax Governing Board.

“Also, there were some people calling it a new tax — even though it isn't — and it was an election year, so we knew it wouldn't pass.”

But Kenley is confident the issue may gain traction in the new Congress, which he said includes a number of new lawmakers from states that are struggling with this issue.

Posted by Marcia Oddi on Tuesday, December 07, 2010
Posted to Indiana Law

Ind. Decisions - More on: Supreme Court issues orders Nov. 30 suspending three attorneys

Updating this ILB entry from Dec. 5, 2010, Dan Carden of the NWI Times reports today under the heading "Ind. Supreme Court suspends Highland-based attorney for at least 3 years."

Posted by Marcia Oddi on Tuesday, December 07, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Firm of Tabbert Hahn Earnest and Weddle closes

Bruce C. Smith reports today in the Indianapolis Star:

Tabbert Hahn Earnest and Weddle, a law firm with deep political and business roots, will close at the end of this year, when many of the attorneys and staff will join one of the city's largest firms.

Bose McKinney and Evans will have 116 attorneys with the addition of nine from Tabbert Hahn. * * *

The firm was formerly Bayh, Tabbert and Capehart and included former U.S. Sen. Birch Bayh.

Posted by Marcia Oddi on Tuesday, December 07, 2010
Posted to Indiana Law

Monday, December 06, 2010

Ind. Gov't. - Changes to death certificate system in Indiana

Recently, the Indiana State Department of Health announced that it was closing its walk-in birth and death certificate services. See this Nov. 23, 2010 story from the Indianapolis Star that begins:

Starting next month, the only ways to get an Indiana birth or death certificate will be online, by mail or at your local health department.

The Indiana State Department of Health announced Monday that as of Dec. 13, the State Vital Records office will close its Downtown walk-in service.

Health department officials said they made the decision to shut the office, at 6 W. Washington St., to make their online, telephone and mail services more efficient.

The walk-in office saw about 200 visitors a week, compared with nearly 40,000 Internet or mail requests each year.

This Dec. 2, 2010 story by Kevin Rader of WTHR describes the next step. Some quotes:
Indianapolis - The state of Indiana is about to require all doctors, funeral directors and coroners to use a new system that could dramatically increase how fast grieving families receive much-needed insurance money. * * *

Beginning in January, a new computer system will go online, where doctors and funeral home directors can more easily complete the death certificate. They will face a Class B misdemeanor if they don't.

The website cleans up potential problems with illegible handwriting by doctors, especially when it comes to cause of death. Secondly, it clears up any problems when it comes to identity theft.

"Bad guys read the obituaries and right when people pass away, that identity is ripe for theft," [State Registrar Erin Kellam.] said. "Our system communicates with the social security administration to pull that social security number out of circulation to protect that persons identity." * * *

While several states across the country have similar systems, they only encourage it be filled out in a timely manner. Indiana will be the only state to require it.

The ILB has had a number of entries on death certificates. For background, start with this entry from March 22, 2009.

Posted by Marcia Oddi on Monday, December 06, 2010
Posted to Indiana Government

Ind. Decisions - "Court rules for surveyor in drainage turf fight" [Updated]

Ben Zion Hershberg of the Louisville Courier Journal reported on Dec. 3rd:

Clark County Surveyor Bob Isgrigg has won a court victory in his 2-1/2-year legal battle against the county Drainage Board and commissioners.

In a decision dated last week, Superior Court Judge Vicki Carmichael said Isgrigg was correct in claiming that his authority was improperly abrogated by the board when it planned and made repairs over Isgrigg’s objections in two cases of drainage problems.

“This decision says the state drainage laws apply to Clark County,” Isgrigg said in a telephone interview Friday.

He said the county can no longer avoid its responsibility to correct subdivision drainage problems and that he knows of many problems that need repair. He invited residents of subdivisions constructed since 2002, when the current state drainage law took effect, to contact him to discuss their rights to obtain repairs from the county.

Prior to Carmichael’s decision, Isgrigg said, the county government had cited its right to manage drainage problems under locally-enacted statutes that set a different standard from what state law requires. He said that often meant residents had to turn to developers for help with drainage problems, and such help wasn’t always forthcoming. Now, Isgrigg said, he believes the county will be responsible for repairs in subdivisions constructed since 2002.

But Greg Fifer, the lawyer for the drainage board and the county commissioners, said he doesn’t believe Carmichael’s decision will have a major impact. Fifer said he believes the ruling applies only to the two drainage situations that Isgrigg cited in his lawsuit.

Because he believes the impact of the decision is limited, Fifer said, he won’t recommend appealing it.

Commissioner Mike Moore, however, called the ruling “huge.” The judge’s ruling essentially means there’s no need for a county drainage board since the surveyor has the ultimate authority to make decisions about such problems, Moore said.

He also said he’s concerned that Surveyor-elect David Blankenbeker, who defeated Isgrigg in the Nov. 2 election, will be overwhelmed by drainage issues when he takes office.

Moore said the drainage board will discuss the decision at a meeting Wednesday but that he agrees he doesn’t want to appeal Carmichael’s ruling because he’s tired of the legal and administrative battles with Isgrigg.

In her decision, Carmichael said Isgrigg argued correctly that the drainage system in Sunset Hills in northwestern Clark County and a drainage problem in Lacassange Creek that runs through Jeffersonville were under Isgrigg’s authority. The ruling said the drainage board acted improperly when it corrected problems at those locations over Isgrigg’s objections.

This is an important decision -- the ILB would like to post a copy, if anyone can help ...

[Updated at 4:45 PM] Good news! The ILB has obtained, not only Judge Carmichael's opinion, but a wealth of preliminary material. Will be posting, probably first thing in morning.

Posted by Marcia Oddi on Monday, December 06, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Law - "Sentencing overhaul could be tough for lawmakers"

Lesley Stedman Weidenbener of the Louisville Courier Journal had this lengthy story on Dec. 4th. Some quotes:

It seems nearly impossible for lawmakers to resist lengthening the sentences for violent crimes, particularly after some egregious act that leads to public outrage and constituent outcries for more punishment.

Every year, there are bills to create more specific crimes and boost misdemeanors to felonies. Last year, the legislature voted to keep sex offenders from obtaining good-time credit for participating in some programs, a move that will keep those inmates in prison longer.

But now lawmakers are facing the results of all those changes: More inmates with longer sentences, higher costs to keep them locked up and a need for additional prison space.

The state budget, though, has no room for such expenses.

So in 2011, the General Assembly will consider an overhaul of its sentencing system. The details of the proposal aren’t yet known. They’ll come from the Pew Center on the States and the Council of State Governments Justice Center, which have teamed up to study the state’s system and make suggestions for changes this month.

But those recommendations are likely to include some proposals that will be tough for lawmakers to swallow. * * *

Several leaders, including Rep. Peggy Welch, D-Bloomington, said lawmakers will need political courage to take up the challenge.

That’s an understatement.

In particular, the House Republican and Democrat caucuses are notorious for using votes on sentencing bills to viciously attack opponents in elections.

Just this past election season, several lawmakers were crucified in direct mail pieces for their votes on the good-time credit bill I mentioned above.

State Rep. Ed Clere, R-New Albany, was attacked because of his vote on this bill.

The mailer sent to voters in his district featured what looked to be a discarded teddy bear and featured the headline “Ed Clere voted to let sex offenders out of jail early.”

Clere won his re-election battle, despite the unfair attack.

But these are the kinds of brutal hits that make it tough for lawmakers to have the courage to make the changes that might be necessary to find a balance between public safety and public costs.

Posted by Marcia Oddi on Monday, December 06, 2010
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Rex E. Breeden Revocable Trust v. Rebecca Hoffmiester-Repp , an 18-page opinion, Judge Riley writes:

Appellant-Plaintiff, Rex E. Breeden Revocable Trust appeals the trial court’s summary judgment in favor of Appellee-Defendant, Rebecca Jane Hoffmeister-Repp on the Trust’s Complaint for rescission and/or damages of an agreement to purchase a residence.

The Trust raises three issues on appeal, which we restate as:

(1) Whether the disclosure requirements set forth in Indiana Code chapter 31-21-5, which require the owner of a residence to disclose to a prospective buyer the working condition of certain key household components, apply to Hoffmeister-Repp’s sale of her residence to the Trust;

(2) Whether there are genuine issues of material fact regarding the Trust’s claim of fraud that would preclude a grant of summary judgment in favor of Hoffmeister-Repp; and

(3) Whether there are genuine issues of material fact establishing that the Trust and Hoffmeister-Repp made a mutual mistake when they entered into an agreement for the sale of the residence under the common assumption that the house was free of moisture problems. * * *

[W]e conclude that exception nine—transfers to a living trust—enacted in I.C. § 32-21-5-1(9) only applies when the transfer occurs between a seller and the seller’s own living trust. This is clearly not the case here, therefore, Hoffmeister-Repp was required to comply with the statute and to complete a Disclosure Form. * * *

Based on the designated evidence before us, we conclude that the Trust failed to show that Hoffmeister-Repp had actual knowledge of the moisture problems in the duct work at the moment she completed the Disclosure Form. Thus, finding no genuine issue of material fact, we hold that the Trust’s fraud claim fails. * * *

[W]e conclude that there is insufficient designated evidence to support a finding of mutual mistake.

Based on the foregoing, we conclude that the trial court properly granted summary judgment in favor of Hoffmeister-Repp.

In Charles E. Green v. State of Indiana , a 12-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the State presented sufficient evidence beyond a reasonable doubt to support Green’s conviction and the trial court did not abuse its discretion when it instructed the jury on accomplice liability. Affirmed.
In Peggy J. Rider and James R. Rider v. Larry L. McCamment, et al. , a 15-page, 2-1 opinion, Judge Riley writes:
Appellants-Plaintiffs, Peggy J. Rider (Peggy) and James R. Rider (collectively, Rider), appeal the trial court’s grant of summary judgment to Appellees-Defendants, Larry L. McCamment and Cynthia R. McCamment, individually, and Larry L. McCamment and Cynthia R. McCamment, d/b/a McCamment Homes, L.L.C. (collectively, McCamment), and Charles Lee, individually, and Charles Lee, d/b/a C&R Supplies, Inc. and Lee Construction Company (collectively, Lee) with respect to Rider’s claim for negligence resulting in personal injuries. We affirm, in part, and reverse, in part. * * *

Based on foregoing we conclude that the trial court properly entered summary judgment in favor of McCamment and erred in entering summary judgment in favor of Lee.

DARDEN, J., concur.
KIRSCH, J., concurring in part and dissenting in part with opinion. [that concludes] To me, the issue presented here is more properly stated not as the duty owed by Lee, but the risk incurred by Rider. I believe that one who enters upon an inherently dangerous construction site in the absence of either permission or notice incurs the risks of such inherent dangers as a matter of law.
I would affirm the trial court in all respects.

NFP civil opinions today (2):

Northeast Civic Association, Inc. et al. v. Gloria J. Beard, et al. (NFP)

Barry Wanner v. Jill Hutchcroft (NFP)

NFP criminal opinions today (5):

Guillermo Toledo v. State of Indiana (NFP)

Quantita L. Jackson v. State of Indiana (NFP)

Ira James Washington, Jr. v. State of Indiana (NFP)

Patrick T. Tolbert v. State of Indiana (NFP)

Stephen Ray Jones, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 06, 2010
Posted to Ind. App.Ct. Decisions

Law - "Shipping law far from settled: High court ruling only introduced more confusion"

Adding to the ILB's lengthy list of entries on wine shipping, Dan and Krista Stockman, who write the "Uncorked" column for the Fort Wayne Journal Gazette, Saturday had a good overview of the current status of the law, and how we got to where we are. A sample:

To bring you up to speed, before 2005 the nation had a patchwork of state laws regulating how, or if, wine you bought could be delivered directly to your doorstep. Then the Supreme Court tried to level the playing field, saying it was unconstitutional for states to let in-state wineries ship to customers while prohibiting out-of-state wineries from doing so.

That actually made things much more complicated, as wine wholesalers, sensing their legalized monopolies might be threatened if people could choose what they wanted to buy and from whom, had states writing all sorts of new laws to stamp shipping out altogether. In the meantime, wineries and wine lovers were headed to court with that 2005 Supreme Court decision in hand trying to open things back up.

Five years later, we still have a patchwork of state laws, only now they’re complicated by competing court decisions and the threat that the wholesalers and the legislators that work for them can turn everything upside down with the stroke of a pen. In Indiana, for example, any winery can ship directly to customers if – and only if – you have been to the winery in person and filled out a state form to prove it. And don’t think about trying to have a wine shipped to you if it is sold in even one store or restaurant in the state.

But notice that so far we’ve only mentioned wineries. And remember how we said it has gotten even more complicated?

Well, now the Specialty Wine Retailers Association has asked the Supreme Court to review a Texas court decision on whether wine stores can ship directly to customers. The Specialty Wine Retailers Association is a trade group of wine stores, and just as wineries did in the first Supreme Court decision, they’re asking the court to declare that states like Texas cannot allow in-state stores to ship while prohibiting out-of-state stores from doing so.

Posted by Marcia Oddi on Monday, December 06, 2010
Posted to General Law Related

Ind. Decisions - One Indiana opinion today from 7th Circuit

In Grigsby v. Ray LaHood (SD Ind., CJ Young), a 13-page opinion, Judge Kanne writes:

After discovering that his job as an Air Traffic Controller at one of the Federal Aviation Administration’s (FAA’s) automated service stations was set to be eliminated in a reduction in force, Brian Grigsby applied for several vacant positions with the FAA at its Indianapolis Center. The FAA’s Human Resources department conducted a cursory review of Grigsby’s application and rated him as qualified for each post. Grigsby was then interviewed, but was not selected for any of the vacancies by the hiring official. Grigsby subsequently brought an employment discrimination suit against the Secretary of the United States Department of Transportation, claiming that the FAA failed to select him due to his Native American heritage. The district court granted summary judgment in favor of the Department of Transportation, holding that Grigsby failed to establish a prima facie case of discrimination and did not offer sufficient evidence to proceed under a mixed-motive theory. Because Grigsby was not qualified for each of the four positions, we affirm.

Posted by Marcia Oddi on Monday, December 06, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Mounting State Debts Stoke Fears of a Looming Crisis"

This lengthy story this weekend in the NY Times, reported by Michael Cooper and Mary Williams Walsh, is absolutely frightening. Don't miss. It begins:

The State of Illinois is still paying off billions in bills that it got from schools and social service providers last year. Arizona recently stopped paying for certain organ transplants for people in its Medicaid program. States are releasing prisoners early, more to cut expenses than to reward good behavior. And in Newark, the city laid off 13 percent of its police officers last week.

While next year could be even worse, there are bigger, longer-term risks, financial analysts say. Their fear is that even when the economy recovers, the shortfalls will not disappear, because many state and local governments have so much debt — several trillion dollars’ worth, with much of it off the books and largely hidden from view — that it could overwhelm them in the next few years.

“It seems to me that crying wolf is probably a good thing to do at this point,” said Felix Rohatyn, the financier who helped save New York City from bankruptcy in the 1970s.

Some of the same people who warned of the looming subprime crisis two years ago are ringing alarm bells again. Their message: Not just small towns or dying Rust Belt cities, but also large states like Illinois and California are increasingly at risk.

Municipal bankruptcies or defaults have been extremely rare — no state has defaulted since the Great Depression, and only a handful of cities have declared bankruptcy or are considering doing so.

But the finances of some state and local governments are so distressed that some analysts say they are reminded of the run-up to the subprime mortgage meltdown or of the debt crisis hitting nations in Europe.

Analysts fear that at some point — no one knows when — investors could balk at lending to the weakest states, setting off a crisis that could spread to the stronger ones, much as the turmoil in Europe has spread from country to country.

Posted by Marcia Oddi on Monday, December 06, 2010
Posted to Indiana Government

Ind. Gov't. - Still more on: "Democrats contest White's election: Petition says he is not eligible to be secretary of state"

Updating this ILB entry from Saturday, Tim Evans of the Indianapolis Star attended yesterday's hearing in the State Office Building (he was in the background in the videocast, one of the few attendees) and wrote this comprehensive story. Some quotes:

The Indiana Recount Commission denied a petition Sunday to dismiss a Democratic Party challenge to the election of Charlie White as secretary of state.

But that does not mean the commission is moving ahead with an investigation into allegations that White was not properly registered to vote when he filed his candidacy in July.

The decision came down to a technicality, with the board voting 2-1 that White's attorney, David Brooks, was not specific enough in his dismissal petition for it to be accepted by the commission.

Brooks said he plans to add the necessary information and file a new petition today -- and that will likely end this challenge to White's election.

The long story recaps the details of this challenge, as well as the special prosecutor investigations.

Posted by Marcia Oddi on Monday, December 06, 2010
Posted to Indiana Government

Ind. Gov't. - "Second-highest paid executive at Duke Energy Corp. has resigned"

John Russell and Ted Evanoff have posted the story this morning on the Indianapolis Star website. Some quotes:

The second-highest paid executive at Duke Energy Corp. has resigned in the midst of a growing ethics scandal between the utility and Indiana regulators.

The resignation of James L. Turner from one of the nation's largest utilities comes a week after the Indianapolis Star reported he had sent hundreds of questionable e-mails to the then-chairman of the Indiana Utility Regulatory Commission this year. The two had discussed confidential personnel information and joked about personal matters, sometimes trading messages eight or 10 times a day. Turner also had offered the then-IURC chairman David Lott Hardy rides on his boat. * * *

Turner was president and chief executive of Duke's U.S. franchised gas and electric business.

From a Nov. 28th Star story:
On July 2, Turner sent an e-mail to David Lott Hardy, then chairman of the Indiana Utility Regulatory Commission, telling him he was heading out on a channel to Lake Michigan.

"Would the ethics police have a cow if you and the woman came up some weekend?" he wrote.

Posted by Marcia Oddi on Monday, December 06, 2010
Posted to Indiana Government

Courts - 9th Circuit Prop. 8 oral argument online today at 1 pm

Via C-SPAN:

A three-judge panel on the Ninth Circuit Court of Appeals in San Francisco will hear an oral argument today on California’s ban against same-sex marriage. In the November 2008 elections, California voters approved Proposition 8, an amendment to California’s Constitution that limits marriage to a man and a woman. The Court will decide if a lower court rightly struck down the voter-approved ban as unconstitutional.

The U.S. District Court for the Northern District of California found Proposition 8 unconstitutional under the Due Process and Equal Protection clauses of the Fourteenth Amendment to the Constitution, and entered an order permanently enjoining the enforcement of Proposition 8.

The oral argument will be divided into two hour-long sessions with a brief recess in between. In the first hour, the parties will address each appellant’s standing and any other procedural matters that may properly be raised. In the second hour, the parties will address the constitutionality of Proposition 8.

A chance to hear two outstanding litigators, David Boies and Ted Olson. Here is coverage from the Mercury News.

Here is coverage from today's NY Times.

Posted by Marcia Oddi on Monday, December 06, 2010
Posted to Courts in general

Catch-up: What did you miss over the weekend from the ILB?

Here is the answer to "What did you miss over the weekend from the ILB? But first, please think about becoming an ILB supporter!

From Sunday, December 5, 2010:

From Saturday, December 4, 2010:

Posted by Marcia Oddi on Monday, December 06, 2010
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/6/10):

Thursday, December 9th

Next week's oral arguments before the Supreme Court (week of 12/13/10):

Next Thursday, December 16th

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 12/6/10):

Tuesday, December 7th

Friday, December 10th

Next week's oral arguments before the Court of Appeals (week of 12/13/10):

Next Thursday, December 16th

Next Friday, December 17th

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, December 06, 2010
Posted to Upcoming Oral Arguments

Sunday, December 05, 2010

Ind. Courts - "Toxicology gaffes likely to affect cases: Early audit finds high incidence of lax standards"

Here is the list of ILB toxicology entries. The ongoing blood test audit is discussed in these entries from Oct. 29, 2010 and Nov. 15, 2010. The latter includes this quote:

"I don't intend to do this alone," [former Marion County Prosecutor Scott Newman, who is directing the audit,] said. "If the reviewers turn up something, I will be going to my colleagues on the prosecution and defense side and lay out what we did.

"We're documenting every step we take. Every e-mail, every survey. I will welcome their input."

Today Mark Alesia and Tim Evans report in a lengthy, front-page story in the Indianapolis Star:
The first phase of a wide-ranging audit of the State Department of Toxicology found serious systemic problems in blood testing that will raise questions -- and probably spur legal challenges -- in numerous criminal cases.

Outside scientists conducted an initial examination of 26 cases and eventually will review more than 10,000. They have found examples of loose or nonexistent laboratory standards and gaps in the chain of custody of samples.

Former Marion County Prosecutor Scott Newman, who was hired in August to fix problems at the troubled Toxicology Department, told The Indianapolis Star that reviewers found problems that raised "serious concerns" in three of the cases.

Attorneys in two of those cases, both of which had guilty pleas for impaired driving, were notified last week of errors by the Toxicology Department.

In another, a positive marijuana test had been reported as negative -- an error that likely affected prosecution. * * *

Newman said 26 cases is too small a sample from which to extrapolate or make any assumptions about what the full audit will reveal. But he also said something potentially ominous: The initial sample of cases for the audit came from 2009 -- when the lab's science actually had improved under a new director.

"I'm concerned," Newman said, "about what we're going to see from '07 and the start of '08." * * *

"A deal has been struck, basically, in the legal system between law and science," Newman explained, "and it says this: If you follow the procedures that are generally accepted by the top professionals in the field, and if you can prove that you followed those procedures, we will accept your results as persuasive. That's the deal. Prove that you did it the right way . . . and we'll say that's good science.

"So procedure is everything. There is no small deviation of procedure. Once you step off that platform, you're in freefall." * * *

[John Tompkins, a leading impaired-driving attorney in Indianapolis,] said he expects defense lawyers to take aim at the lab, including those representing people who pleaded guilty.

But Joel M. Schumm, a professor at Indiana University School of Law-Indianapolis, said it is hard to get a conviction set aside when the defendant has pleaded guilty.

New evidence calling test results into question, he said, would have to be weighed in the context of all the other evidence in a case. * * *

The audit results come as a lawmaker who served on the assessment team is preparing legislation to remove the lab from IU control. State Sen. Tom Wyss, R-Fort Wayne, said he plans to introduce a bill to accomplish that in the upcoming legislative session.

"We need to get this to a place where we are looked at by all concerned -- defense attorneys, prosecutors and the public -- in a positive light," Wyss said.

Posted by Marcia Oddi on Sunday, December 05, 2010
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues orders Nov. 30 suspending three attorneys

In the Matter of Kurt F. Pantzer, III is a 3-page order. The Court suspended Respondent from the practice of law in this state for a period of not less than 90 days, without automatic reinstatement, beginning January 7, 2011. From the opinion:

Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct: 3.3(a)(1): Knowingly making a false statement of fact or law to a tribunal. 3.4(a): Unlawfully obstructing another party's access to evidence. 3.4(b): Falsifying evidence. 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

Discipline: The accuracy of documents and instruments utilized by a tribunal in a proceeding is of the utmost importance to the administration of justice, and fraudulent creation or alteration of such documents by an officer of the court is therefore serious misconduct. See Matter of Darling, 685 N.E.2d 1066, 1068 (Ind. 1997) (forging notary signature on documents filed in court). See also Matter of Vogler, 587 N.E.2d 678 (Ind. 1992) (fabricating lease for use in ejectment action); Matter of Barratt, 663 N.E.2d 536 (Ind. 1996) (fabricating letter and testifying that it was authentic).

Homeowners requested Respondent to provide the contractor's invoice because they questioned the accuracy of the information provided by Respondent. Respondent filled the blank invoice with his clients' allegations and presented it as coming from the contractor. Even though the invoice correctly reflected the amount paid the contractor, this was not the only point of dispute. Respondent refuses to acknowledge any wrongdoing in misrepresenting the source of the fabricated evidence to both opposing counsel and the trial court. We agree with the hearing officer's recommendation that a period of suspension is warranted, and we conclude that Respondent should go through the reinstatement process to prove his understanding of his ethical duties and remorse before resuming practice. We note that regardless of the date on which Respondent is eligible to seek reinstatement, his petition would be granted only if he meets the most stringent requirements of proving by clear and convincing evidence that his rehabilitation is complete and he can safely reenter the legal profession. See Admis. Disc. R. 23(4)(b). * * *

All Justices concur, except Shepard, C.J., and Dickson, J., who dissent, believing that the punishment should be more severe in light of the Respondent's creation and presentation of false documents to the court and his subsequent efforts to obstruct the discovery of his misrepresentation.

In the Matter of Jay F. Tweedy is a 2-page order. The parties proposed a six-month suspension without automatic reinstatement and the Court approves the agreed discipline. From the opinion:
Stipulated Facts: Based on an incident on December 1, 2009, Respondent pled guilty to public intoxication. At the time of his arrest, Respondent appeared at the Child Advocacy Center for a police interview of a juvenile client. Respondent has five prior convictions for operating a vehicle while intoxicated ("OWI"), one of which occurred in 1986 (prior to his admission to the bar), and four of which occurred in 1991, 1999, 2001, and 2003 (after his admission to the bar). Respondent failed to notify the Commission of the last three OWI convictions. Facts in mitigation are: (1) Respondent was cooperative with the Commission; (2) he completed a treatment program for chemical dependency and continues with an aftercare program; and (4) he voluntarily terminated his private law practice.
In the Matter of Jerry I. Shapiro is a 2-page opinion. The Court suspended Respondent from the practice of law in this state for a period of not less than three years, without automatic reinstatement, effective as of the date of this order. From the opinion:
In late 2006, a decedent's daughter (who lives in Poland and has very limited ability to communicate in English) hired Respondent to handle the probate estate of her mother, who died in Lake County. The estate's major assets were two savings accounts and a home. The daughter was the sole beneficiary. After the sale of the decedent's home, Respondent failed to move forward with closing the estate, failed to pay state inheritance taxes, failed to file an inventory, failed to respond to the daughter's requests for information, and made unauthorized payments totaling $24,000 to himself from estate assets. After the daughter hired new counsel to replace Respondent, he failed to obey a court order that he provide an accounting and provide documents pertaining to the estate to new counsel. This resulted in the trial court issuing a bench warrant for his arrest. * * *

The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct: 1.1: Failure to provide competent representation. 1.3: Failure to act with reasonable diligence and promptness. 1.4(a)(3): Failure to keep a client reasonably informed about the status of a matter. 1.4(a)(4): Failure to comply promptly with a client's reasonable requests for information. 1.15(d): Failure to deliver promptly to a client funds the client is entitled to receive. 8.4(b): Committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer. 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. 8.4(d): Engaging in conduct prejudicial to the administration of justice.

Posted by Marcia Oddi on Sunday, December 05, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - "Legal experts say that 2010 may be remembered as the year in which retention elections took on all the bruising characteristics of regular head-to-head judicial elections"

So reports John Gramlich in this story today in the Washington Post. Some quotes:

Legal experts say that 2010 may be remembered as the year in which retention elections took on all the bruising characteristics of regular head-to-head judicial elections. [Illinois Chief Justice Thomas Kilbride's] race, for example, is believed to be the second-most expensive retention election in U.S. history. Negative ads accused him of not only holding anti-business positions, but also siding with sex offenders and murderers.

"From my perspective, this is spillover from the way in which contested judicial elections have been conducted over the last decade," says Rebecca Love Kourlis, executive director of the Institute for the Advancement of the American Legal System at the University of Denver. "There is leakage from that particular method of elections over into retention elections."

Even if Illinois provided the most expensive retention election this year, it certainly wasn't the most controversial - or consequential. That occurred in Iowa, where voters took the nationally unprecedented step of ousting three of seven Supreme Court justices after a well-funded opposition group, Iowa for Freedom, attacked the justices over their ruling last year to give constitutional protection to same-sex marriage in the state. * * *

The justices' removal will not affect the gay marriage ruling, but it may change the balance of power on the Iowa Supreme Court. Republican Gov.-elect Terry Branstad wants to appoint the three replacement judges, although technically Gov. Chet Culver, the Democrat whom Branstad beat, could make his own appointments before he leaves office in January.

Observers on both sides of the Iowa election agree that its result will reverberate in courts far beyond Des Moines. "The impact on sitting judges is tremendous," says Alexander Bryner, the former chief justice of the Alaska Supreme Court. "Once we have a result that gets rid of sitting judges because they decided a politically unpopular issue, the message sent to all judges on the bench is, 'Be careful.' "

Whether that is a good thing, of course, is a point of debate. Supporters of an independent judiciary say that judges must not become beholden to majority will, but many others believe that courts - particularly in states that do not hold head-to-head elections - have accumulated more power in recent years than initially intended.

The result in Iowa is "indicative of a movement to hold that third branch more accountable," says Matt Arnold, the founder of Clear the Bench Colorado. Arnold's group sought to remove three Colorado Supreme Court justices this year over a series of tax-related decisions. The campaign wasn't successful, but Arnold says it may be a sign of more fights to come. "A lot of people are waking up to the fact that our courts have been increasingly usurping power that does not rightfully belong to that branch."

Also, an interesting Dec. 3, 2010 story by Grant Schulte of the DesMoines Register:
Iowa Supreme Court Justice David Wiggins maintained Thursday that the state's merit-based judge selection system is the best way to pick fair and qualified jurists, regardless of which governor sits in office or who serves on the panel that picks finalists for the bench.

The justice said he was disappointed with last month's vote to remove three of his colleagues from the bench, but accepted the outcome as part of Iowa's system for picking and retaining judges.

"I am not going to second-guess its results," Wiggins said at a panel forum at the downtown Des Moines Embassy Club. "But I do want to tell this group that it's now time for the court move on."

Wiggins was one of four panelists who spoke at a gathering sponsored by an Iowa chapter of the American Constitution Society about the future of the state court system. * * *

The forum also coincided with news that Wiggins will head the 15-member commission that selects finalists to replace the three ousted justices. [ILB - in Indiana, by law, the CJ is a member, and chair, of the nominating commission.]

"I believe, in my experience with the commissions, that we do the best job forwarding the best candidates to the sitting governor," Wiggins said. "I also believe that, once those names are forwarded to the governor, all the governors I've been involved with - and I go back to when Gov. (Bob) Ray was governor - the governor selects the very best candidate."

The Des Moines Register reported in October that 12 members of the current state nominating commission are registered Democrats, one is a Republican, and one member's party is unknown. The commission's current chairman, Justice Mark Cady, was a registered Republican in 2006 but is no longer affiliated with a party, according to voting records.

Critics and some scholars say that the merit-selection process favors Democrats. Commission members say they are forbidden from factoring politics into their decision.

[Ben Stone, the executive director of the American Civil Liberties Union of Iowa,] said courts that respond to political pressures are less likely to protect the rights of religious, political or ethnic minorities.

"There can be no civil liberties - there can be no individual freedom - in a country that does not have an independent judiciary," Stone said. "And in a state that doesn't have an independent judiciary, all of the rights that are at stake in the state courts are up for grabs."

Posted by Marcia Oddi on Sunday, December 05, 2010
Posted to Courts in general

Ind. Courts - "Lake County courthouse renamed in honor of Indiana Supreme Court Justice Robert D. Rucker"

Updating this ILB entry from Feb. 22, 2010, Lori Caldwell reports today in the Gary Post-Tribune:

Lawyers, judges, county and city officials filled the first-floor lobby of the Lake County courthouse as it was renamed in honor of Indiana Supreme Court Justice Robert D. Rucker.

"This is a most humbling occasion," Rucker said after watching his wife and his mother unveil the metal engraved plaque dedicated to Rucker "for his pioneering efforts to increase diversity in the legal profession."

Rucker, a Gary native, is a former Lake County prosecutor, Gary city attorney and is the first black to serve on the Indiana Supreme Court.

His two fellow justices, Frank Sullivan and Steven David, offered high praise for Rucker, who they said provides insight and experience to the decisions they review.

Sullivan said there was "no finer tribute" than naming the courthouse at 400 Broadway after Rucker, a graduate of Roosevelt High School, Indiana University, Valparaiso University School of Law and University of Virginia Law School. * * *

As Rucker stood before the crowd, he read a brief history of the "historic and majestic" courthouse, built of marble and limestone, completed in 1929 for less than $1 million.

Then he took time to thank family, friends and lawyers who helped him through the years, saying he stood on "tall shoulders.

"I accept this honor on all of their and your behalf," he said.

Posted by Marcia Oddi on Sunday, December 05, 2010
Posted to Indiana Courts

Ind. Gov't. - Some investigative reporters try to keep tabs on competitors by "FOI-ing other peoples’ FOIs"

This ILB entry from May 23, 2010 quoted a Chicago Sun-Times story:

In the name of “transparency,” Mayor Daley on Thursday got some measure of revenge against the investigative reporters who’ve made his life miserable by digging up dirt on the Hired Truck, city hiring and minority contracting scandals.

He revamped the city’s new website to include a log of all Freedom of Information Act requests. The list includes the name and organization of each applicant, documents demanded and dates the information was requested and is due to be released. * * *

Corporation Counsel Mara Georges noted that some investigative reporters try to keep tabs on competitors by “FOI-ing other peoples’ FOIs.”

I recalled that story this morning when I read this "Water Cooler" item in the Indianapolis Star:
Wall Street Journal reporter Rebecca Smith has earned the fear and respect of energy executives.

In 2001, she and WSJ reporter John Emshwiller broke story after story about the unsavory financial dealings at Enron that helped lead to the Houston company's collapse. The two later described their efforts in a booked titled "24 Days."

So what is Smith digging into lately?

You guessed it. She's looking into Duke Energy's Indiana operations and the scandal involving Scott Storms, former general counsel at the Indiana Utility Regulatory Commission, who has become embroiled in an ethics scandal and was later fired by Duke.

Smith has filed an open-records request with the IURC. "I'd like to get the copies of the e-mails cited in the Indianapolis Star and also chat with you about this hiring controversy," she wrote the IURC on Oct. 12.

Posted by Marcia Oddi on Sunday, December 05, 2010
Posted to Indiana Government

Saturday, December 04, 2010

Environment - "States' Bid to Block Asian Carp Migration to Great Lakes Rejected by Federal District Court in Chicago""

Andrew M. Harris of Bloomberg News reported Dec. 2, 2010 in a story that began:

A federal court denied a request by Michigan and four other states bordering the Great Lakes to order the closing of links between the Mississippi River and Lake Michigan to block the migration of Asian carp.

U.S. District Judge Robert M. Dow in Chicago today ruled that the states failed to show the requisite imminent harm required to compel him to order action by the U.S. Army Corps of Engineers and Illinois’s Metropolitan Water Reclamation District of Greater Chicago.

Michigan, Minnesota, Wisconsin, Ohio and Pennsylvania sued in July, claiming that infiltration of the invasive species through waterways connecting the river and lake threatened the $7 billion sport fishing and tourism industry.

The opinion is State of Michigan et al v. U.S. Army Corps of Engineers et al, U.S. District Court, Northern District of Illinois (Chicago), No. 10-cv-4457.

See also this Dec. 3, 2010 story in the South Bend Tribune, where Joseph Dets writes under the headline "Would Asian carp like it here?"

Posted by Marcia Oddi on Saturday, December 04, 2010
Posted to Environment

Ind. Law - Meth law cleanup costs can be staggering for an unwitting property owner

A story today in the Kosciusko County Times-Union reports:

If you're a landlord, you don't have to be involved in cooking meth for it to have a negative financial impact on you.

Rental properties, including hotel and motel rooms, as well as seasonal homes which are left vacant, are prime targets for meth activity. If you own a property where a meth lab has been located, you may be required to have testing completed to determine contamination levels, and be held responsible for costly clean-up procedures. * * *

A property is considered contaminated if it has been used for illegal manufacturing of a controlled substance such as methamphetamine. Contamination can pose serious health and environmental dangers. These drugs are manufactured in homes and outbuildings, garages and apartments using toxic household and agricultural chemicals that can explode or ignite without warning. * * *

When a meth lab is seized, [Niki Crawford, Indiana State Police Meth Suppression Section commander] said, police are required to notify the health department, fire department and child services if children under 18 are involved.

The health department then abates the house - essentially condemns it - until testing is complete. The homeowner is responsible for the cost of the testing - approximately $1,300.

After the house is tested and results certified by IDEM, the health department either lifts the abatement or orders a cleanup, Crawford said.

If a cleanup is needed, the homeowner is responsible. Cleanup can range from washing down the walls with soap and water to stripping out all the carpet and drywall.

"It really all depends on how long they've been cooking there," Crawford said.

Average cleanup cost is around $14,000, she said.

Worse, she said, is when homeowners simply abandon a house because they can't afford the cleanup.

"Now you've got an abandoned house in your neighborhood and it drives down your property values," she said.

Some insurance policies may cover some of the costs, but even insurance companies are beginning to avoid the risk. * * *

When meth is cooked, it releases high levels of iodine and phosphide. Hydrochloric acid and meth residue can cover the floors, walls and countertops.

It permeates carpet, seeps into the niches, cracks, corners and seams that make up a house.

Since not every meth lab is seized and cleaned up, unsuspecting homebuyers could wind up unknowingly purchasing a home that was used in meth production, officials say.

New owners believe the house is in good condition and have no idea they are living in a virtual toxic waste dump.

Often the first sign that something is not right is when unexplained illnesses begin to develop in family members and even pets. * * *

Meth labs have been found in vacated homes, rental properties and even hotel rooms where they leave behind damage that must be assessed, tested and cleaned up by professionals.

Meth cookers pay for a hotel room or apartment rental for a short period of time, and then leave behind costly damages. Local property owners have spent thousands of dollars in cleanups.

One property owner in Kosciusko County opted to tear down his rental home because the expenses to clean it up exceeded the value of the property.

Here is IDEM information on cleanup of illegal drug labs.

Here is a lengthy list of earlier ILB entries on meth labs, including this one from Feb. 5, 2010.

Posted by Marcia Oddi on Saturday, December 04, 2010
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending December 3, 2010

Here is the Clerk's transfer list for the week ending December 3, 2010. It is one page (and 7 cases) long.

No transfers were granted for the week ending Dec. 3, 2010.
__________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the October 8, 2010 list.

Over 6.5 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on November 29, 2010 06:56 AM
Posted to Indiana Transfer Lists

Posted by Marcia Oddi on Saturday, December 04, 2010
Posted to Indiana Transfer Lists

Ind. Gov't. - "Panel whittles list of IURC candidates down to 10"

Not much whittling occurred, however, as the selection commission pared the list from the initial 12 to 10, according to this story today by John Russell of the Indianapolis Star. The story includes neither a list of those remaining, or the names of the two eliminated.

This Nov. 23rd ILB entry includes a list of the 12 applicants.

Today's story reports:

Gov. Mitch Daniels will select the new commissioner from among three finalists chosen by a seven-member nominating committee.

The committee met Friday morning at the Statehouse and decided to cut two candidates from a list of 12 applicants. The remaining 10 will be interviewed by the committee next Friday during an all-day session. They include the chairman of the State Parole Board, the top lawyer at the State Lottery Commission and the top lawyer at the state Department of Natural Resources.

During a 75-minute meeting, the nominating committee did not set out a list of skills or experience it was seeking in a new commissioner. The committee's chairman, William Stephan, said the group is following state law that lists broad qualifications, such as public service, education and professional experience.

Posted by Marcia Oddi on Saturday, December 04, 2010
Posted to Indiana Government

Ind. Gov't. - "More on: "Democrats contest White's election: Petition says he is not eligible to be secretary of state

Updating this ILB entry from Nov. 21st, 2010, re Indiana Democratic Party Chairman Dan Parker's petition with the Indiana Recount Commission contesting Republican Charlie White's election as Secretary of State, the Recount Commission hearing will be this Sunday, Dec. 5th at 3:00 p.m. at the State Office Building, Conference Room B.

Entry can be made through the center doors of the West Washington Street side of the building at 402 W. Washington beginning at 2:30 PM. The hearing is open to the public and will be streamed live. (Fortunately, as traffic and parking will be impossible due to the Colts' game, which kicks off at 4:00 PM. )

The White item is last on the agenda.

Here is the Nov. 19, 2010 Parker Petition.

Here is the Nov. 23, 2010 Motion to Dismiss the Parker petition.

Here is the Dec. 3, 2010 Petitioner's Response.

Posted by Marcia Oddi on Saturday, December 04, 2010
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 Friday (and 2 NFP)

For publication opinions today (3):

In Sheila Perdue, et al. v. Anne W. Murphy, et al. , a 21-page opinion, Judge Bailey writes:

The ACLU of Indiana (“the ACLU”) brought a class action complaint, pursuant to 42 U.S.C. § 1983, to enjoin the practice of the Indiana Family and Social Services Administration (“the FSSA”) to issue adverse action notices pertaining to Medicaid, Temporary Assistance to Needy Families (“TANF”), and Supplemental Nutrition Assistance Program (“SNAP”) (collectively, “public benefits programs”), which notices generically alleged a failure to cooperate but did not specify which verification document was missing (according to FSSA records). The complaint further alleged that, with respect to SNAP, the FSSA failed to comply with the federally-mandated “refusal to cooperate” standard, instead implementing a “failure to cooperate” standard. With regard to Sheila Perdue, it was alleged that the FSSA violated the Americans with Disabilities Act of 1990 (“the ADA”) and the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., when Perdue was automatically scheduled for a telephonic interview notwithstanding her known hearing impairment and was subsequently denied benefits for “failure to cooperate.” Finally, the complaint sought costs and attorney's fees pursuant to 42 U.S.C. § 1988. * * *

The Recipients present the issue of whether they, as opposed to the FSSA, are entitled to summary judgment because the FSSA notification practices denied them procedural due process. On cross-appeal, the FSSA presents the issue of whether the trial court erroneously granted injunctive relief. * * *

Adverse action notices lacking specificity as to missing or allegedly missing eligibility documents do not comport with the requirement of procedural due process. Accordingly, the Recipients established their entitlement to injunctive relief and summary judgment in favor of the FSSA is reversed. The FSSA has demonstrated no substantial harm from an injunction to refrain from denying or terminating public welfare benefits in contravention of federal law.

For background, start with this ILB entry from April 1, 2010, headed "Disputed welfare practices don't hold up in [trial] court," which includes a link to the trial court opinion.

In Marion County Auditor & McCord Investments v. Sawmill Creek, an 18-page opinion, Judge Mathias writes:

The Marion County Auditor (“the Auditor”) and McCord Investments LLC (“McCord”) appeal from the order of the Marion Circuit Court granting a motion filed by Sawmill Creek LLC (“Sawmill Creek”), to set aside a tax deed the Auditor issued to McCord. On appeal, the Auditor and McCord claim that the trial court erred in concluding that the tax deed should be set aside because the attempts to provide notice of the tax sale were constitutionally inadequate. We affirm. * * *

While the trial court and the parties seem to have focused their argument on the issue of whether the Auditor should have posted notice on the Lot, we need not consider other, possible, alternative measures the Auditor could taken beyond resending the notice by first class mail. Under [Jones v. Flowers, 547 U.S. 220 (2006),], we simply cannot agree with the Auditor and McCord that resending notice by first class mail was not required here. The Auditor's attempts to notify were therefore constitutionally inadequate.

We recognize that this entire controversy could have been avoided had Simpson shown even a modicum of responsibility himself. He could have made certain that the Lot was deeded to Sawmill Creek instead of “Saw Creek.” Had he properly ensured that his current address for the taxation of the Lot was on file with the Auditor, and if he had simply noticed that he had not been paying the taxes due on the Lot, all of the current controversy could have been avoided. The Court in Jones considered similar arguments by the Commissioner but still concluded that the Commissioner was required to do more than publish notice when notice by certified mail had been returned as unclaimed.

Conclusion. We are constrained by the holding of the U.S. Supreme Court in Jones to agree with the trial court that the owner of the Lot at issue before us was not provided constitutionally adequate notice of the tax sale. Therefore, the trial court did not err in setting aside the tax deed issued to McCord.

ILB Note: Interesting language on pp. 7-8:
Because of the press of court business, it is not uncommon for trial courts to adopt a party's submitted findings verbatim. While this practice may cause courts on appeal to wonder whether the findings are the result of considered judgment by the trial court, this practice does not constitue error, in and of itself. Hardebeck v. Hardebeck, 917 N.E.2d 694, 698 (Ind. Ct. App. 2009); Prowell v. State, 741 N.E.2d 704, 708 (Ind. 2001). The critical inquiry remains whether such findings, as adopted by the court, are clearly erroneous. Prowell, 741 N.E.2d at 709.
In Michael Gray v. D & G, Inc., a 10-page opinion, Judge Mathias writes:
Michael Gray (“Gray”) appeals the Hamilton Superior Court’s grant of summary judgment in favor of D&G, Inc. d/b/a The Sandstone Bar & Grill (“Sandstone”) in Gray’s negligence action against Sandstone. We reverse and remand. * * *

Gray claims that the trial court erred in granting summary judgment in favor of Sandstone, contending that the trial court improperly determined that Gray could not bring suit under the Dram Shop Act due to his voluntary intoxication. * * *

[T]he General Assembly has made the public policy decision that even those who are voluntarily intoxicated may, under certain, limited and clearly-delineated circumstances, assert a claim for damages against a person who provided them with alcoholic beverages that contributed to the intoxication.5 Were we to hold otherwise, we would effectively render subsection (c) a nullity. This we will not do. * * *

This interpretation is also consistent with the policy goal of the Act itself. “The Dram Shop Act represents a legislative judgment and the declared public policy of this state that providers of alcoholic beverages should be liable for the reasonably foreseeable consequences of knowingly serving visibly intoxicated patrons.” Nat’l R.R. Passenger Corp. v. Everton, 655 N.E.2d 360, 366 (Ind. Ct. App. 1995), trans. denied. 7.1-5-10-15.5

For all of these reasons, we conclude that our General Assembly has spoken clearly in this area and the trial court erred in concluding that Gray could not recover from Sandstone because of his voluntary intoxication. The parties do not challenge the trial court’s determination that genuine issues of material fact exist with regard to whether Sandstone had actual knowledge that Gray was visibly intoxicated and whether Gray’s alleged injuries were proximately caused by Gray’s intoxication. We therefore reverse the trial court’s entry of summary judgment in favor of Sandstone and remand the case for proceedings consistent with this opinion.

NFP civil opinions today (1):

T.P. v. Review Board (NFP)

NFP criminal opinions today (1):

Carlton J. Harwood v. State of Indiana (NFP)

Posted by Marcia Oddi on Saturday, December 04, 2010
Posted to Ind. App.Ct. Decisions

About - ILB disruption caused by CLE deficit

Needing 9.6 more hours for this three-year period, blogging was curtailed much of Thursday and all of Friday while I attended seminars. Happily, they were both excellent, first-time events: The History of Indiana Environmental Law (sponsored by the the ISBA environmental law section), and Advanced Legal Writing: Making Your Case (sponsored by the USDC, SD Indiana, and the Federal Bar Ass'n., Ind. chapter). Will try to catch-up the ILB this weekend - there are quite a few items worthy of mention.

Posted by Marcia Oddi on Saturday, December 04, 2010
Posted to About the Indiana Law Blog

Friday, December 03, 2010

Ind. Gov't. - Indiana Senate Democrats, through their blog, The Briefing Room, have stepped up [Updated]

From a Nov. 17, 2010 ILB entry:

Updating this ILB entry from earlier this morning, the IBJ is now reporting that "all Indiana General Assembly committee meetings will be shown live online in the 2011 session for the first time."

I haven't seen an announcement from the Senate, however. The General Assembly convenes Jan. 5, 2011.

Moreover, the very important hearings of the Indiana State Budget Committee are taking place right now. As far as I know, they are NOT being videocast online. Today begins the review of state university budgets. In the opinion of the ILB, these [state budget committee] hearings should not only be videocast and archived, but the budget documents submitted by the agencies and institutions should be posted.

From a Nov. 29 ILB entry:
... Fascinating stuff, right? Much of the information (but not Weidenbener's skillful putting it together) is from today's testimony before the State Budget Committee which, as the ILB first wrote on Nov. 17, 2010, sadly is NOT videocast. Think of what else you, the public, are missing from these hearings, which are going on daily for a month.
But last evening the ILB learned that the Indiana Senate Democrats, through their blog, The Briefing Room, have stepped up to fill part of this information gap.

Their introductory entry was posted Nov. 23, 2010. Some quotes:

Released in conjunction with the Open Government Initiative and efforts to improve transparency in state government budgets and spending, the Briefing Room will be profiling action by the State Budget Committee and the Indiana General Assembly as they prepare to write a balanced budget in the face of restricted state revenues and a slowly recovering economy.

This is the first in a series of Briefing Room posts that will highlight the state budget requests and discuss progress of the next two-year state budget. * * *

While Indiana’s state budget process is a public matter, budget-related information can often be presented in forms that are difficult to access and hard to understand. The state’s budget documents include constantly changing revenue projections, fluctuating income statements and fund balances, thousand-page revenue reports, multiple budget bills and spending options considered by the General Assembly, and long lists of appropriations and expenses that are paid by the state. All things considered, state budget accounting is necessarily complicated. However, there ought to be a way to break down this budget information so everyone can understand how and where our state tax dollars are being spent.

It is our hope that the Budget Briefs will not only improve citizens’ understanding of the budget writing process, but that they will also prompt engagement in a discourse that will help legislators define the state’s spending priorities. Use the Briefing Room to follow legislators through the budget writing process from planning, to decision making.

The university budget presentations were the first on the state budget committee agenda, and this Nov. 30, 2010 entry links to all the presentations and requests.

Kuddos from the ILB. This is a real public service and, combined with the Speaker's move to videocast all House committee meetings during the session, marks a real step forward in making the legislative committee process more transparent.

[Update at 12:27 PM] A reader writes to advise the ILB:

I see you keep asking about Senate hearings being webcast. [A]ll the Senate committee rooms were already equipped with equipment and webcasting last session and maybe the session before. They use room 130; 233; the chamber floor and Senate Appropriations. So it was the House catching up with the Senate.
Thanks to the reader. I knew some of the Senate comittee rooms were wired, but wasn't sure all the committee meetings had been broadcast consistently in the past. This is good!

All that remains now on this particular list is for the State Budget Committee hearings to be videocast, and for all videocasts, both interim and during the session, to be archived so that those who work or go to school during the day also can also access them.

Posted by Marcia Oddi on Friday, December 03, 2010
Posted to Indiana Government

Ind. Courts - "State public defender's office made an unsuccessful bid to persuade Vanderburgh Judge to let a different judge hear an appeal"

Mark Wilson reports today in the Evansville Courier & Press:

The attorneys in convicted murderer Daniel Ray Wilkes' trial became witnesses Thursday as the state public defender's office made an unsuccessful bid to persuade Vanderburgh Circuit Court Judge Carl Heldt to let a different judge hear an appeal of the case.

Steven Schutte, a state deputy public defender, argued that notes from the trial indicated Heldt was biased because he allegedly said to attorneys that he believed Wilkes was faking being suicidal.

During Thursday's hearing, Heldt said repeatedly that he did not recall making such statements. He also noted that he considered evidence about Wilkes' drug addictions, history of depression and past suicidal tendencies in his sentencing.

The remarks allegedly were made during a meeting between the judge and attorneys to discuss jury instructions for Wilkes' sentencing, and recorded in defense attorney Barbara William's handwritten notes.

"I don't recall saying it. I don't recall thinking it," Heldt said.

"Judge, those are the words that you said," Williams replied. * * *

Schutte argued that the alleged remarks indicated that while Heldt may have considered the evidence that he was predisposed to give it less weight.

Heldt ruled that he would continue presiding over the case.

The Indiana Supreme Court upheld Wilkes' conviction and death sentence in a December 2009 ruling that can be appealed to the U.S. Supreme Court. In that appeal, he argued: the trial court erred in admitting transcripts and recordings of four interviews in which he acknowledged his guilt; admitting expert testimony about a presumptive test for blood and opinion testimony on guilt. Wilkes also argued that Indiana's death penalty statute violates the Indiana Constitution's requirement of separation of powers and the federal Sixth Amendment.

But the state Supreme Court justices wrote "we cannot say that the death sentences in this case are inappropriate."

Posted by Marcia Oddi on Friday, December 03, 2010
Posted to Indiana Courts

Thursday, December 02, 2010

Ind. Decisions - More on "Custody ruling raises legal concerns"

Updating this ILB entry from Nov. 28 on the Craig Scarberry case, Indy6 News had this report this evening.

See also this Dec. 2, 2010 entry from the Stuart Showalter Law Blawg.

Posted by Marcia Oddi on Thursday, December 02, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 0 NFP)

For publication opinions today (3):

In Paul J. Kocielko v. State of Indiana, a 19-page opinion, Judge Bailey writes:

Appellant-Defendant Paul J. Kocielko appeals his convictions for two counts of Sexual Misconduct with a Minor, one count as a Class B felony, and one count as a Class C felony, and his adjudication as a habitual offender.2 We affirm the Class B felony conviction and habitual offender adjudication but remand to the trial court with instructions to set aside the Class C felony conviction.

Kocielko presents six issues for review:
I. Whether his retrial violated double jeopardy prohibitions because an acquittal on one count in his first trial acquitted him of the other counts against him;
II. Alternatively, assuming his retrial was permissible, whether double jeopardy principles preclude his convictions on multiple counts as opposed to one count;
III. Whether he is entitled to a new trial because of undue prejudice from trial safety measures including a hidden leg restraint and police officer seating arrangements;
IV. Whether he knowingly and intelligently waived his right to be represented by counsel;
V. Whether he was entitled to a DNA expert at public expense; and
VI. Whether his sentence is inappropriate in light of the nature of the offense and his character.

In Kenneth Pope and Judie Pope v. Hancock County Rural Electric d/b/a Central Indiana Power, a 9-page opinion, Judge Kirsch writes:
Kenneth Pope (“Kenneth”) and Judie Pope (“Judie”) (collectively, “the Popes”) appeal the trial court's order granting Central Indiana Power's (“CIP”) motion for judgment on the evidence. The Popes raise two issues, which we consolidate and restate as: whether the trial court abused its discretion when it entered judgment on the evidence in favor of CIP at the close of the Popes' case in chief. * * *

We therefore conclude that CIP's actions were not the proximate cause of Kenneth's injuries, and the trial court did not abuse its discretion in granting CIP's motion for judgment on the evidence.

In James and Robert New v. Personal Representative of the Estate of Martha New, a 14-page opinion, Judge Bailey writes:
We affirm the probate court and remand this matter for determination of appellate attorney fees.

James and Robert raise numerous issues for our review, which we consolidate, restate, and reorder as:
I. Whether certain assets of the estate were improperly divided and distributed among the heirs;
II. Whether James New was improperly deprived of reimbursement of costs advanced on behalf of the Estate;
III. Whether the probate court erred in approving the Estate’s attorney fees;
IV. Whether the personal representative properly accounted for certain debts owed to the Estate; and
V. Whether the probate court failed to give James and Robert adequate notice and time to respond to the Estate’s Third Amended Accounting.

The Estate in turn requests that we dismiss the appeal for procedural bad faith and failure to comply with this court’s procedural rules. * * *

James and Robert have waived numerous issues they raised before this court because they failed to cite the record or authority in support of their arguments. The probate court did not err as a matter of law when it did not afford James and Robert notice and a hearing before it approved the Estate’s Third Amended Final Accounting. Moreover, we find that James and Robert have engaged in procedural bad faith in their pursuit of this appeal, and that attorney’s fees should therefore be assessed against them. Affirmed and remanded.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Thursday, December 02, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana opinion today

In U.S. v. Corona-Gonzalez (SD Ind., J. Hamilton), a 14 page opinion, Judge Ripple writes:

Juan Corona-Gonzalez seeks review of a sentence imposed by the United States District Court for the Southern District of Indiana. A jury found Mr. Corona-Gonzalez guilty of possession with intent to distribute, and distribution of, 500 grams or more of a mixture containing a detectable amount of methamphetamine and possession of a firearm in furtherance of a drug trafficking crime. The district court sentenced him to 240 months’ imprisonment on each of Counts I and II, to run concurrently, and 60 months’ imprisonment on Count III, to be served consecutively, for a total of 300 months’ imprisonment. The court also imposed a term of five years of supervised release. Because the district court misapprehended a significant aspect of Mr. Corona- Gonzalez’s record at the time it imposed the sentence, we must reverse the judgment of the district court and remand the case to permit the district court to determine whether, without that misapprehension, it would have imposed a different sentence.

Posted by Marcia Oddi on Thursday, December 02, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - How are forfeitures handled in Howard County?

A lengthy story today in the Kokomo Perspective details how forfeitures are handled by the Howard County prosecutor James Fleming. A quote:

The problem in Howard County, as Fleming explained to the Perspective, is that he doesn’t use that forfeiture law at all. He uses another forfeiture law on the books that doesn’t include the school funding stipulation.

The Perspective filed an Indiana open records law request for all accounting records pertaining to actions taken under IC 34-24-1 for a two-year period. Fleming responded promptly.

“Orders of Forfeiture made by Howard County Courts, pursuant to a Complaint for Forfeiture filed by the Howard County Prosecutor, are rendered under IC 34-24-2-1 through IC 34-24-2-8,” Fleming wrote in his response. “No Forfeiture Orders are rendered under IC 34-24-1.”

The laws Fleming cited are found in the chapter titled, “Civil Remedies for Racketeering Activity.” Using this forfeiture statute requires the prosecutor to prove through preponderance of evidence that a corrupt business influence violation exists, as defined under state law.

Using it, assets can be seized by law enforcement without a court order under certain conditions. Should the court find in favor of the state, the assets may be disposed of without a requirement to determine the cost of law enforcement or a requirement to turn over proceeds to the state’s general school fund.

Posted by Marcia Oddi on Thursday, December 02, 2010
Posted to Indiana Courts

Courts - Did extensive use of Twitter in covering gruesome trial improperly sway jury?

William Glaberson reports today in the NY Times in a story that begins:

NEW HAVEN — There were half a dozen of them typing away in the courtroom rows. Minute by minute, they sent out reports of gruesome testimony via Twitter. In the end, the defense says, there were more than 140,000 Twitter messages about the trial that dealt with rape and children tied to their beds in a house that was set ablaze.

On Thursday, the widely followed trial of Steven J. Hayes, who was convicted of killing three members of a Cheshire, Conn., family, is set to come to an official end with the judge’s imposition of the death sentence voted for by the jury. But lawyers for Mr. Hayes have already made court filings that sketch out appeals arguments that are likely to occupy the courts for years.

One of the most provocative is that the intense reporting on the trial — including mainstream reporters’ extensive use of Twitter — created a “circus atmosphere” and such widespread, instant saturation with inflammatory details that the jury was improperly swayed by public passions. The claim could force appeals judges to grapple with the question of whether new technology requires new courtroom rules.

“As I experienced it during this trial, I think there’s a real danger that the inclusion of new technology in the courtroom is affecting an individual’s fair-trial rights,” said Thomas J. Ullmann, Mr. Hayes’s chief defense lawyer.

The trial judge, Jon C. Blue of State Superior Court, tersely rejected the claims in a ruling last week, saying that the news media were “carefully controlled” and that there was no evidence the jury was driven by passion.

But that is not likely to be the last word on the issue.

Posted by Marcia Oddi on Thursday, December 02, 2010
Posted to Courts in general

Ind. Decisions - 7th Circuit holds "Stay of Discovery Doesn’t Block Public Records Requests"

That is per this posting by Prof. Eugene Volokh yesterday re the 7th Circuit decision in American Bank v. City of Menasha (7th Cir. Nov. 29).

Posted by Marcia Oddi on Thursday, December 02, 2010
Posted to Ind. (7th Cir.) Decisions

Law - "Civil Unions Advance in Illinois"

Updating yesterday's entry, Monica Davey of the NY Times has this story today. It is accompanied by a helpful sidebar:

Commitments Vary From State to State

SAME-SEX MARRIAGE is legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and Washington, D.C.

CIVIL UNIONS are legal in New Jersey, and are expected to start in Illinois in July.

DOMESTIC PARTNERSHIPS that grant nearly all the state-level spousal rights as civil unions exist for same-sex couples who register in California, Nevada, Oregon and Washington State.

DOMESTIC PARTNERSHIPS that grant some rights exist in Hawaii, Maine, Wisconsin and Washington, D.C.

IN CALIFORNIA, same-sex marriage is not currently allowed, while the issue makes its way through the courts, but same-sex marriages were performed there in 2008 before voters amended the State Constitution to define marriage as between a man and a woman.

Posted by Marcia Oddi on Thursday, December 02, 2010
Posted to General Law Related

Ind. Gov't. - "Medicaid cuts likely in Indiana: Rising costs could force lawmakers to reduce some services"

According to the schedule of State Budget Committee hearings, yesterday was:

To decode: Indiana has a high risk pool program, called the Indiana Comprehensive Health Insurance Association (ICHIA) that offers insurance for people with health; and SBA = State Budget Agency.

The FSSA hearing gets good coverage today from the AP's Ken Kusmer. But I've found nothing in the papers about the rest of the testimony. Wouldn't you have liked to hear what the Inspector General had to say, and what questions were directed to him? As I've written before, these important budget hearings are not videocast and are accessible to only a limited few.

Today's lengthy FSSA story begins:

INDIANAPOLIS — Indiana lawmakers likely will cut some Medicaid-provided services in the upcoming legislative session after learning Wednesday that the state's share of government health insurance program costs will balloon by $1.1 billion over the next two years unless checked.

The federal government pays about two-thirds of Indiana's Medicaid costs, but human services chief Michael Gargano told the State Budget Committee that the state's share has been growing by more than 10 percent each year. He said that's because the recession has made more people eligible for Medicaid, which serves those who are needy and disabled.

Gargano, secretary of the Indiana Family and Social Services Administration, asked for an additional $900 million in state Medicaid funds over the two-year period starting next July 1. He recommended the General Assembly rein in the costs by cutting some optional services the state currently provides.

He didn't identify specific services lawmakers could cut. But details will likely come when the Family and Social Services Administration presents its annual Medicaid spending forecast to the budget committee on Dec. 15.

Lawmakers are so concerned about ballooning Medicaid costs that cutting some services is not the only option they want to pursue. Senate Appropriations Chairman Luke Kenley, R-Noblesville, said Indiana should join Texas and other states that are considering opting out of Medicaid.

"We can't afford it. We have to be serious about finding alternatives," Kenley, who also chairs the budget committee, told The Associated Press.

The state has one of the most comprehensive Medicaid programs, providing about 30 optional services including prescription drugs, eyeglasses, dental work, hospice care and smoking cessation.

Enrollment has grown from about 850,000 Indiana residents in 2005 to about 1.1 million currently in programs including Hoosier Healthwise for children and pregnant women, the Healthy Indiana Plan for uninsured, low-income adults and Care Select for people with disabilities.

The Family and Social Services Administration projects that two years from now, total enrollment will approach 1.3 million. That means one in every five residents would be on Medicaid.

[More] Here are some interesting observations on the story from Masson's Blog.

Posted by Marcia Oddi on Thursday, December 02, 2010
Posted to Indiana Government

Wednesday, December 01, 2010

Law - "Illinois Senate approves civil unions, measure heads to Quinn "

From the Chicago Tribune:

SPRINGFIELD --- Civil unions for same-sex couples would be allowed in Illinois under historic legislation the state Senate swiftly sent today to Gov. Pat Quinn, who is expected to sign the measure.

The bill would give gay couples the chance to enjoy several of the same rights as married couples, ranging from legal rights on probate matters to visiting a partner in a hospital that won’t allow anyone but relatives into a patient’s room.

The Senate voted 32-24 after the House, viewed as the toughest hurdle, passed the measure on Tuesday.

But more comprehensive coverage from Dale Carpenter of The Volokh Conspiracy, who writes:
Today the state legislature passed a civil unions bill (full text here), granting same– and opposite-sex partners all of the legal rights, obligations, and privileges of spouses under state law. The vote was 32–24 in the state senate today, following approval in the state house yesterday. The governor will sign the bill.

There are a couple of noteworthy provisions in the bill. First, the new status is available to opposite-sex spouses who choose not to marry. This makes the Illinois law different from other civil-union laws, like the ones in California, Oregaon, and New Jersey, which generally make the equivalent status available only to same-sex couples on the theory that opposite-sex couples can marry. (California has a limited exception for opposite-sex partners when one is above the age of 62 and eligible for Social Security benefits.)

Second, the bill contains a “reciprocity” provision requiring the state to recognize out-of-state same-sex marriages or civil unions.

The entry links to the bill. However, the link is to the engrossed version, so it is not necessarily the final language, but it is interesting.

[Updated]
The Sun-Times has good coverage. A quote from the story by Dave McKinney:
The legislation does not alter state law recognizing marriage as being between a man and woman.

Under the legislation, gays and lesbians or heterosexual couples in civil unions could:

• Make health-care decisions affecting their partners;

• Decide how to dispose of a deceased partner’s remains;

• Gain new standing in probate law and laws relating to estate succession, purchase and distribution of property;

• Gain accident and health insurance protections tied to spouses.

Posted by Marcia Oddi on Wednesday, December 01, 2010
Posted to General Law Related

Ind. Courts - "Bill would allow Indiana cities and towns to collect their own money for ordinance violations, rather than going through the regular county court system"

Looks like the Indiana judicial system is being pulled at both ends. Supplementing this entry where Chief Judge John Baker talks about "A New Way Forward," the Indiana Judicial Conference's strategic plan to reform the courts, which includes abolishing city courts, a story today in the Greene County Daily World talks about some legislators' plans to move in the opposite direction. From the story, reported by Nick Schneider:

Two area lawmakers plan to introduce legislation when the General Assembly opens in January that will help Indiana cities and town more effectively enforce local ordinance violations and keep the money that is collected from fines.

District 45 State Rep. Bruce Borders (R-Jasonville) and District 39 State Sen. John Waterman (R-Shelburn) are working on a bill that will be introduced that would allow Indiana cities and towns to collect their own money for ordinance violations, rather than going through the regular county court system. * * *

"What we are looking at is allowing cities and towns to enforce their own ordinances and collect the fines locally and keep that money. Right now, if you are going to enforce your own ordinances you have to have a city court and you have to have a licensed attorney and so forth. We are looking back to having basically a justice of peace system. ... The cities and town can basically do all of this themselves," he stressed.

Borders said the legislation will provide for the cities or towns to appoint an individual or a commission to carry out the judicial side of the enforcement.

There are no other good options because many times cities and town don't have the resources or want to take the time to take these kind of ordinance cases to small claims or civil court, Borders contends.

"The way it is now, it's like having a dog with no teeth," Borders added, "I'm on the House Local Government Committee and I can make sure this (bill) gets a hearing."

The Daily World allows comments. This one caught my eye:
This is a mistake. This will allow a small town to be judge jury and executioner. The old days of small town speed traps will again bloom.

Posted by Marcia Oddi on Wednesday, December 01, 2010
Posted to Indiana Courts

Law - "As newspapers shrink, journalists land jobs in state government "

Rob Gurwitt has a lengthy article today in Stateside. It is pretty interesting, here is why:

Had Vogel’s reporting appeared in the Times, it would have been front-page news. Instead, her work had a smaller, although more influential, audience: state legislators and staffers in a position to do something about what she’d found.

That’s because late in 2008, Vogel left the Times’ state capitol bureau and went to work for state government in the new Senate Office of Oversight and Outcomes. Created by Senate President Pro Tem Darrel Steinberg, the office is designed “to professionalize oversight and institutionalize it across the board,” in Steinberg’s words. But it does so in an unusual way: Its three “consultants” — Sacramento committee-speak for research and policy staff — are all former reporters.

Posted by Marcia Oddi on Wednesday, December 01, 2010
Posted to General Law Related

Courts - "Post-Chandra Levy murder trial 12/1: The secret juror questionnaires"

Suits & Sentences, a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau, has this entry today. Here is a quote:

Rejecting a bid led by the Washington Post, and joined by other media organizations, D.C. Superior Court Judge Gerald I. Fisher has denied a motion seeking media access to the filled-out juror questionnaires. The main 11-page questionnaire included a number of out-of-the-ordinary questions, concerning matters like prior knowledge of gang activity, attitudes toward tattoos and attitudes toward immigrants.
The ILB has had a number of posts on access to juror questionnaires, both filed in and not, as well as a challenge to intrusive questions on a questionnaire.

Posted by Marcia Oddi on Wednesday, December 01, 2010
Posted to Courts in general

Ind. Law - "Indiana utilities ordered to alter tree trimming practices, improve customer involvement "

Jo Ellen Meyers Sharp of Hoosier Gardener has an informative post on the new order issued Nov. 30, 2010 on procedures utility companies will have to follow in the future to trim trees on private property.

Here is an earlier ILB post from Dec. 14, 2009.

Posted by Marcia Oddi on Wednesday, December 01, 2010
Posted to Indiana Law

Courts - SCOTUS questions broad use of FOIA exemption

Interesting AP story today by Mark Sherman that begins:

WASHINGTON -- The Supreme Court on Wednesday questioned the government's broad use of an exemption in the federal Freedom of Information Act to withhold documents from the public.

The justices heard argument in an appeal from Glen Milner, a Washington state resident who sued under FOIA for maps showing the extent of damage expected from an explosion at the Navy's main West Coast ammunition dump on an island near Port Townsend in western Washington.

The Obama administration is defending the decision to deny Milner the maps under a provision of FOIA that exempts from disclosure documents "related solely to the internal personnel rules and practices of an agency." * * *

The case is Milner v. Department of the Navy, 09-1163.

Posted by Marcia Oddi on Wednesday, December 01, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In William R.D. Britt v. State of Indiana , a 7-page opinion, Judge Mathias writes:

William R. D. Britt (“Britt”) was convicted in Allen Superior Court of Class B felony robbery, Class D felony criminal recklessness, and Class A misdemeanor carrying a handgun without a license. Britt appeals and argues that the trial court abused its discretion when it prevented Britt from introducing evidence of a defense witness’s prior robbery conviction. We affirm. * * *

Britt argues that this rule is mandatory and that the trial court therefore had no discretion to exclude evidence of Brandon’s prior robbery conviction. We agree with Britt that the language of Rule 609(a) is mandatory. * * *

Had Britt wished to impeach his brother’s credibility by introducing evidence that Brandon had a prior conviction for robbery, then the evidence of the robbery could have been admissible. But the trial court concluded that Britt was not attempting to impeach his brother’s credibility but rather was attempting to show that, because Brandon had a prior conviction for robbery, he was more likely than Britt to have committed the instant robbery. Evidence Rule 404(b) generally prohibits the admission of evidence of a person’s “other crimes” to prove the person’s character in order to show that the person acted in conformity therewith. And this prohibition applies to persons other than the defendant. * * *

Under the facts and circumstances of the instant case, we cannot say that the trial court abused its discretion in refusing to allow Britt’s counsel to introduce evidence of Brandon’s prior robbery conviction.

In Robert Segar v. State of Indiana , a 10-page opinion, Judge Robb writes:
Robert Segar was convicted, following a bench trial, of possession of marijuana, a Class A misdemeanor. On appeal, he raises two issues, of which we find the following restated issue dispositive: whether the trial court abused its discretion by admitting into evidence marijuana obtained following an investigatory stop and detention of Segar. Concluding in the affirmative because Segar's detention was not supported by the requisite reasonable suspicion, we reverse. * * *

Here, Officer Grigsby stopped and handcuffed Segar based on a tip from an anonymous caller whose identity was never ascertained. So far as the record reveals, the information provided by the tipster was limited to the following: 1) a burglary was “in progress” at 3179 Normandy Road; and 2) a white male wearing a dark shirt or dark coat was allegedly involved in the burglary. Because this description was quite generic and lacking in detail, the officers had little information upon which to base a particularized suspicion of Segar. * * *

If the tipster's assertion of a burglary in progress had been corroborated, there would have been some reason to believe the tipster had inside knowledge potentially linking Segar to the illegality. However, there is nothing in the record to indicate whether a burglary actually happened at 3179 Normandy, let alone whether police verified the report before stopping Segar. Not only was the tipster anonymous and unknown to police, the tipster apparently hung up the phone when police or dispatchers attempted to ascertain his or her identity, which casts further doubt on the tipster's knowledge or veracity. * * *

The investigatory stop and detention of Segar were not supported by reasonable suspicion, and the trial court therefore abused its discretion by admitting into evidence over his objection the marijuana officers discovered during the subsequent search. Segar's conviction of possession of marijuana is reversed.

NFP civil opinions today (0):

NFP criminal opinions today (4):

David E. Stutsman v. State of Indiana (NFP)

Elizabeth Littlefield v. State of Indiana (NFP)

Demond Withers v. State of Indiana (NFP)

Michael Calhoun v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 01, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Another amazing IURC / Duke Energy story today; and some ILB observations

Updating this ILB entry from Nov. 28, 2010, today's front-page Indianapolis Star story by John Russell is headed: "IURC reassigns ethics officer after scandal: Questions linger over role official played when Duke Energy hired a utility commission attorney." Some quotes from the lengthy story:

The ethics officer at the Indiana Utility Regulatory Commission has been reassigned amid questions over her role in Duke Energy's hiring of a high-ranking commission attorney who was later embroiled in a conflict-of-interest scandal.

Loraine L. Seyfried, who also holds the title of chief administrative law judge at the IURC, was removed Monday from all cases connected to Duke's massive coal-gasification plant in Edwardsport, a commission spokeswoman confirmed Tuesday.

The commission also took away Seyfried's duties as ethics officer and gave them to another IURC official, Doug Webber, who joined the commission this week as general counsel. Webber previously was chief legal counsel for the Indiana Department of Insurance.

The move comes less than a week after The Indianapolis Star reported that Duke's top Indiana executive on Aug. 1 e-mailed the then-chairman of the IURC, outlining what Seyfried should include in her ethics review of Duke's hiring of Scott Storms. * * *

The Duke executive -- Mike Reed, then-president of Duke Energy Indiana -- e-mailed David Lott Hardy, then chairman of the IURC. Seyfried "must clearly spell out how [Storms] would be walled off from Edwardsport and therefore meet the [ethics] test," he wrote.

On Aug. 25, Seyfried sent a three-page memo to Storms, stating her opinion that his prospective employment with Duke would not violate the state ethics code, as he had not negotiated or administered a contract with Duke while with the IURC.

"It is my understanding that upon submission of your resume to Duke Energy Indiana, you took steps necessary to immediately screen yourself from pending Duke Energy Indiana proceedings to which you were assigned . . . and to reassign the cases to other administrative law judges," Seyfried's memo read.

Therefore, she wrote, Storms could accept the job at Duke without violating state ethics laws, as long as he agreed not to represent or help Duke with any cases in which he had been involved. Storms presented Seyfried's letter to the ethics commission on Sept. 9, when he appeared to ask for approval to take the Duke job.

An email chain (linked by the Star) from August 1, 2010 between David Lott Hardy and Michael Reed is very instructive about how Hardy, then-chair of the IURC, and Reed, then president of Duke-Indiana, viewed the Governor's office [ILB comments in italics]:
Hardy: [T]his is just pure pettiness. ["This" would be Governor's chief-of-staff Earl Goode's observation that he expected Storm's proposed move would have a hard time passing ethics panel review.]

Reed: I viewed EAG's [Goode's] comments [as] more his opinion, not something he has concluded as a result of legal input. Could Pippen [David Pippen, Governor's chief counsel] be source of concern? If it is then we may have a problem. [Right! Pippen fired Hardy last month ...]

Hardy: The fundamental problem is they don't know what we do or how we do it. This is reflected in their choices for Commissioners and their disrespect for our process. [Emphasis added. "They" is clearly the Governor's office. But who is "we"? It looks like "we" is Hardy (IURC chairman) AND Reed (Duke president). Ironically, Gov. Daniels appointed Hardy to the IURC in 2005 - see the ILB entry]

[Hardy continues] Scott is worth the effort and I will make it, but its a fight that should not have to be fought - this is just screwing Scott for no reason at all.

Posted by Marcia Oddi on Wednesday, December 01, 2010
Posted to Indiana Government

Courts - "Amendments to the Federal Rules of Appellate Procedure take effect today"

From How Appealing Blog, with an interesting note re new Appellate Rule 29(c)(5).

Posted by Marcia Oddi on Wednesday, December 01, 2010
Posted to Courts in general

Ind. Courts - IndyStar editorial against Marion County trial judge selection system

And of course the Star's editorial writers are far from the first to criticize the Marion County system. Most recently, Justice Ted Boehm, in his Sept. 30 , 2010 retirement speech, said:

[I]n some parts of the state we have systems of judicial selection that work well, but in Marion county, for example, we have a scheme that purports to place the selection in the hands of the voters, but in practical effect leaves it under the control of a few party officials. There are several pernicious results, not the least of which is the judges become a vehicle for raising funds for political parties. Despite widespread derision, even ridicule of this system, few in government have the will to challenge it.
The first half of today's Star editorial points out Marion County traffic court judge Bill Young's faults, ending with:
His abuse of power has been so blatant that the General Assembly this year even passed a law specifically aimed at Young's practice of imposing heavy fines on drivers who came to court to fight traffic tickets.
The editorial continues:
Yet, the bigger outrage isn't Young's misbehavior. It's an electoral process that protects judges such as Young from voters' scrutiny.

Marion County has a bizarre system in which judicial candidates who are slated by the major political parties are all but assured victory in the general election. The system essentially guarantees that party insiders, not voters, get to select who serves on the bench in Marion County.

Defenders of the system insist that it provides the best of the alternatives: Candidates are screened by the parties before they reach the ballot, but voters get the final say.

Yet, officials such as Young and Grant Hawkins, a Marion County Superior Court judge who was suspended last year for mishandling a rape case, are largely shielded from public accountability for their actions.

As it stands, Young may well have deserved a stiffer penalty for what Indiana University School of Law-Indianapolis Professor Joel Schumm described as "repeated and flagrant'' misconduct. For sure, the public deserves a system that takes power out of the hands of party insiders and puts it with the voters.

Posted by Marcia Oddi on Wednesday, December 01, 2010
Posted to Indiana Courts

Ind. Courts - "Gabriele estate settlement reached" [Updated]

The ILB has had a number of entries about the legal issues surrounding the apparent murder-suicide of an Elkhart eye doctor and his wife.

Today Erin Blasko reports in the South Bend Tribune in a story that begins:

SOUTH BEND — It appears a settlement agreement has been reached in the case of the estate of the late Dr. Philip Gabriele.

Details of the agreement have not been disclosed, but court documents indicate it distributes the assets of the estate equally among the parties involved in the case.

Police found Gabriele and his wife, Marcella Gabriele, dead inside their Elkhart clinic in June 2009 from an apparent murder-suicide.

At the time, the couple faced fraud charges related to the operation of Gabriele Eye Center.

Court documents list estate assets totaling about $2.64 million, much of it from a $1.9 million life insurance policy paid to the estate in September of this year.

Debts total about $1.61 million.

Though references to the settlement agreement appear in court documents, no such agreement appears in the case file.

However, an attorney representing the Gabriele family confirmed Tuesday an agreement had been reached.

[Updated at 3:30 PM] The South Bend Tribune reports this afternoon:
The criminal case against Susan Manuszak remains pending in Elkhart County Superior Court, Elkhart County Chief Investigator Bill Wargo Sr. said Wednesday.

Manuszak faces one count of false reporting, a Class A misdemeanor, in connection with the deaths of Philip and Marcella Gabriele, the owners of Gabriele Eye Institute.

Posted by Marcia Oddi on Wednesday, December 01, 2010
Posted to Indiana Courts

Law - "Typo" acquits Virginia man who passed stopped school bus

Some quotes from a story by Tom Jackson in today's Washington Post:

Virginia law on passing a stopped school bus has been clear for 40 years. Here - read it yourself:

"A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children."

Yes, drivers must stop a school bus which is, er, stopped.

Wait. Is something missing there?

Indeed. The preposition "at" was deleted in 1970 when the law was amended, the statute's history shows. And a man who zipped past a school bus, while it was picking up children with its lights flashing and stop sign extended, was found not guilty recently by a Fairfax County Circuit Court judge.

"He can only be guilty if he failed to stop any school bus," Judge Marcus D. Williams said at the end of the brief trial of John G. Mendez, 45, of Woodbridge. "And there's no evidence he did."

Williams added, "I hope that this is addressed so we don't have to keep dealing with this." * * *

Assistant Commonwealth's Attorney Katie Pavluchuk argued that the law clearly did not intend to require "having to stop the school bus. It's talking about this other vehicle coming towards the school bus. . . . The obvious intent of the statute is clear."

[Defense attorney Eric E. Clingan] then pointed to Virginia Supreme Court case law, which says: "Courts are not permitted to add language to a statute nor are they 'permitted to accomplish the same result by judicial interpretation.' "

A 2005 state Supreme Court ruling written by Justice Barbara Keenan, now a federal appeals court judge, said that "we assume that the General Assembly's amendments to a statute are purposeful, rather than unnecessary." * * *

Williams then wondered aloud: "I don't know if there's some latitude" in divining the law's intent. "There probably isn't, because it's a criminal statute." And read literally, the judge said, he had to acquit Mendez.

The prosecution cannot appeal an acquittal.

Pavluchuk, who was simply handling the regular Thursday morning misdemeanor appeals docket, did not come prepared with case law and professorial analysis, as Clingan did. But her boss, Fairfax Commonwealth's Attorney Raymond F. Morrogh, was ready when asked about it this week.

"I respectfully disagree with the decision," Morrogh said. He cited a U.S. Supreme Court case from 1892 that said, "If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity."

He also said a full reading of the law makes its intention clear and pointed to a Virginia Supreme Court case that said that "the plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction." The court also wrote, "We must assume the legislature did not intend to do a vain and useless thing."

And then the Fairfax prosecutor tossed in his own analysis of the Mendez case, through a Japanese proverb: "Only lawyers and painters can turn white to black."

Posted by Marcia Oddi on Wednesday, December 01, 2010
Posted to General Law Related