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Monday, January 31, 2011

Ind. Decisions - Court of Appeals issues 7 today (and 28 NFP) [Really!]

For publication opinions today (7):

In JK Harris & Co. v. Ronald Sandlin , a 22-page opinion, Judge Mathias writes:

Ronald Sandlin (“Sandlin”) obtained a default judgment against JK Harris & Co., LLC (“JK Harris”) in Marion Superior Court and successfully sought to certify a class of plaintiffs pursuant to Trial Rule 23. JK Harris later filed a Trial Rule 60(B) motion to set aside the default judgment and the class certification, both of which the trial court denied. Appealing the denial of its motion to set aside, JK Harris raises the following issues, which we reorder and restate as: I. Whether the trial court abused its discretion when it denied JK Harris's Trial Rule 60(B) motion to set aside the default judgment; II. Whether the trial court was required to dismiss the cause and order the parties to binding arbitration; and, III. Whether the trial court abused its discretion when it refused to set aside the class certification. * * *

JK Harris waived its argument that the trial court abused its discretion when it denied its Trial Rule 60(B) motion for reasons of excusable neglect and equity because those arguments were not raised in the trial court. JK Harris also waived its right to compel arbitration. Because JK Harris defaulted and failed to respond to any of Sandlin's pleadings concerning the class certification, the trial court did not abuse its discretion when it failed to set aside the class certification. Because of JK Harris's conscious decision not to participate for more than five and one-half months, a more precise identity of the relevant class may well require additional hearings that consider the results of further discovery on JK Harris. We therefore remand this case to the trial court to hold an evidentiary hearing pursuant to Rule 23(C)(1), in order to redefine the Plaintiff Class with more specificity.

Cynthia L. Foley v. Robert L. Schwartz and Danny L. Collins

Term. of Parent-Child Rel. of D.B.; W.B. v. IDCS

R.M. v. Second Injury Fund

Merle R. Webb v. State of Indiana

John M. Norris v. State of Indiana

Brett Zagorac v. State of Indiana

NFP civil opinions today (11):

T.B. v. Review Board (NFP)

Adoption of D.C., et al.; D.C. v. C.P. and C.P. (NFP)

Charleen (Turi) King v. Kenneth Robert Turi (NFP)

Daniel Hooper v. Donna Smith (NFP)

G.W. v. Review Board (NFP)

Katherine Weber v. Carrie Schlichtenmyer (NFP)

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

A.C., et al., Alleged to be CHINS; D.B. v. IDCS (NFP)

Scott A. Hesser v. Wendy S. Hesser (NFP)

Company v. Review Board, K.S. (NFP)

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

NFP criminal opinions today (17):

Roy A. Selby v. State of Indiana (NFP)

Gary G. Lane v. State of Indiana (NFP)

Marty B. Beard v. State of Indiana (NFP)

Dorian L. Harris v. State of Indiana (NFP)

Virgil Austin v. State of Indiana (NFP)

R.K. v. State of Indiana (NFP)

Jackie Joiner v. State of Indiana (NFP)

Tiffany Shelman v. State of Indiana (NFP)

Conan Helsley v. State of Indiana (NFP)

James Daher, Jr. v. State of Indiana (NFP)

Gregory Barkdull v. State of Indiana (NFP)

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

David Farmer, II v. State of Indiana (NFP)

Charles D. Lamphier v. State of Indiana (NFP)

Monica M. Emmons v. State of Indiana (NFP)

Charles Vernon Nute, Jr. v. State of Indiana (NFP)

Kaouthar Chamem v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 31, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending January 28, 2011

Here is the Clerk's transfer list for the week ending January 28, 2011. It is one pages (and 13 cases) long.

One transfer was granted for the week ending Jan. 28, 2011:

__________

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 January 11, 2011 list.

The ILB archive now contains seven 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, January 31, 2011
Posted to Indiana Transfer Lists

Ind. Courts - Tuesday's COA oral argument postponed

The Court of Appeals argument scheduled for tomorrow in the case of Clark v. Clark has been postponed because of the weather. It will be rescheduled later.

Posted by Marcia Oddi on Monday, January 31, 2011
Posted to Upcoming Oral Arguments

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?"

From Sunday, January 30, 2011:

From Saturday, January 29, 2011:

From late Friday, January 28, 2011:

Posted by Marcia Oddi on Monday, January 31, 2011
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/31/11):

Next week's oral arguments before the Supreme Court (week of 2/7/11):

Next Tuesday, February 8th

Next Wednesday, February 9th

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 1/31/11):

Monday, January 31st

February 1st

Wednesday, February 2nd

Friday, February 4th

Next week's oral arguments before the Court of Appeals (week of 2/7/11):

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, January 31, 2011
Posted to Upcoming Oral Arguments

Sunday, January 30, 2011

Ind. Courts - An update on the Indiana statute and the federal sex offender act (SORNA)

The ILB had a very long entry on July 10, 2010 that was headed "Judges agree that the attorney general’s office’s insistence on intervening in so many of these cases continues to cause headaches and confusion for all involved." The heading was a quote from a long story published that day in the Fort Wayne Journal Gazette, reported by Rebecca S. Green. Included in the story was:

Last year, the Indiana Supreme Court issued what is now frequently just referred to as “the Wallace ruling,” which allowed sex offenders who committed their crimes before the creation of the registry to petition the courts to be removed from the list. * * *

The Supreme Court eventually agreed with him, finding that “the changes to the act violated the state’s Constitution by imposing burdens on Wallace that added punishment beyond what could have been imposed when his crime was committed,” according to the ruling.

Since the ruling, local courts have been processing requests from sex offenders asking to have their names removed because of the dates of their conviction.

In an effort to streamline the process this spring, the legislature required sex offenders to begin making such requests in the counties in which they reside, not where their conviction occurred.

But along with each sex offender’s request, the attorney general’s office has also filed paperwork, asking that the judges construct their orders or instruct the sex offenders that they may be required to register under the federal law. So far, nearly 70 motions have been filed with various county courts, said Bryan Corbin, spokesman for Indiana Attorney General Greg Zoeller.

The paperwork is maddening to the judges, who aren’t sure what the purpose of the request is, other than to confuse.
* * *

In 2006, the federal government enacted the Adam Walsh Act, officially known as the Sex Offender Registration and Notification Act, and unofficially by its acronym: SORNA. The law was an attempt to combine all the sex offender registries around the country.

Indiana is one of a handful of states not in compliance with the act, said Brent Myers, the director of registration and victim services with the Indiana Department of Correction.

The state has recently filed an extension request, asking it be allowed until June 2011 to comply with the requirements of the law, Myers said.

According to the story, the additional requirements, not mandated in Indiana law but required by the AG, are to assure future compliance with SORNA.

Indiana has not yet implemented SORNA. Last week the ILB received some information about the potential cost of implementing SORNA (also known as the Adam Walsh ACT - AWA) in Texas. The Texas Legislative Budget Board, an independent review agency for the state's legislature, included its legislative biennium-based report this fiscal impact information, suggesting that SORNA would be very costly to implement in Texas:

Both state and federal laws play a role in establishing sex offender registration and notification requirements. In 2006, the federal government passed the Adam Walsh Act establishing comprehensive sex offender registration and notification requirements that may be costly for states to implement. Early estimates indicate it could cost Texas $14 million a year to comply with the Act. The penalty for non-compliance in fiscal year 2010 would have been $2.2 million. [See p. 56 of report]
The ILB has also received a communication from the Association for the Treatment of Sexual Abusers, indicating that contrary to the statement of the DOC quoted in the July 10, 2010 story, very few states have as yet implemented the federal law:
[T]o date, four states have implemented SORNA: Ohio, Delaware, Florida, and South Dakota; one US Territory has implemented: Guam; and two tribes have implemented: the Confederated Tribes of the Umatilla Indian Reservation and the Confederated Tribes and Bands of the Yakama Nation; for a total of seven jurisdictions having implemented.
And yet another item of interest related to the July 10, 2010 ILB entry and FWJG story: The case referenced in the story involved a Theothis Allison, who filed a letter with Allen County Judge Gull last April, asking to be removed from the sex offender registry because of the Indiana Supreme Court decision in Wallace. From the story:
In a handwritten letter filed in late April, Allison made his request, which Gull granted about 10 days later, according to court documents.

But since then, the Indiana attorney general’s office has filed motions asking to intervene in the case. In the motion, the attorney general has requested that Gull change her order for a number of reasons – [1] taking issue with Allison’s letter, [2] saying Gull lacked jurisdiction in the case and [3] saying that Allison may be required to register under the federal Sex Offender Registration and Notification Act, which Indiana does not yet follow.

Gull has no intention of changing her order. She staunchly refuses to muddy the waters for sex offenders and those who handle the sex offender registry by dealing with the federal question.

Another similar decision by Judge Gull, where the judge straightforwardly implemented the Supreme Court's Wallace decision, was reversed earlier this month in a Jan. 10, 2011 COA decision, State of Ohio Conviction Against Mickey Shawn Gambler. The ILB noted in this entry:
The Allen County Superior Court's action was in response to an April 23, 2010 letter from Gambler. The Court's order to the DOC stated in part: "Pursuant to Indiana Code and Wallace v. State, 905 N.E. 2d, 371 [sic] (Ind. 2009), the Defendant is not required to register as a sex offender or violent offender on the Indiana State Registry as a result of this conviction in Ohio. WHEREFORE, the Sheriff of Allen County and Indiana Department of Correction are ordered to remove Defendant’s name from the Indiana Sex/Violent Offender Registry, based upon conviction in this matter. . ."
The COA ruled that Gambler's letter and Judge Gull's action were "insufficient to remove Gambler from the sex offender registry, and on remand, order the trial court to dismiss the case without prejudice subject to further proceedings in the event Gambler files a sufficient petition."

Finally, in other SORNA related news, the SCOTUS will hear Reynolds v. United States this term. The issue: Does petitioner have standing under the plain language of the Sex Offender Registration and Notification Act to raise claims regarding the Attorney General’s interim rule making the Act retroactively applicable to those who committed their underlying offense prior to its enactment date? For more, see this discussion by Lyle Denniston of SCOTUS Blog, from Jan. 24, 2011.

[MORE]
One more thing. SECTION 2 of SEA 224 (PL 103-2010), took effect March 24, 2010. Wallace was decided April 30, 2009.

Posted by Marcia Oddi on Sunday, January 30, 2011
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Ind. Trial Ct. Decisions | Indiana Courts | Indiana Law

Ind. Law - More on: What are "English only documents" and what is excepted?

Updating this ILB entry from Jan. 25th on HB 1255, which passed the House Jan. 24th on a vote of 63-26, Deanna Martin of the AP has a story today, in the Greenfield Daily Reporter, headed "Indiana proposal to have state documents in English only advancing despite questions." A few quotes from the long story:

[From] Sen. Mike Delph, a Republican from Carmel who is pushing an immigration bill that includes a provision similar to Crouch's bill. "By taking on the issue, you invite criticism of a racial bias and an ethnic bias and all these different things. From a political perspective, you don't want to have to deal with that. It puts you in a bad light."

On top of the political considerations, there also seems to be plenty of practical questions surrounding the English language proposals, which are supported by national groups promoting the English language. Crouch's bill includes an exemption that says languages other than English may be used for state documents under certain circumstances, including when required by federal law, when needed to protect rights in court, for public health and safety reasons or to promote tourism.

It's unclear exactly what documents and agencies would be included in the bill and what wouldn't, some lawmakers argued, and Crouch didn't have a comprehensive list of state documents that are currently issued in other languages.

The Department of Revenue offers Spanish forms on its website and takes about 10,000 calls a year from Spanish-speaking residents who need help with their taxes in Spanish, said spokeswoman Stephanie McFarland. The department is seeking a specific exemption from the bill, saying it wants to continue to help those Spanish-speaking citizens — and collect their tax money.

The Bureau of Motor Vehicles currently offers written tests in Japanese and Spanish, a spokesman said, but the portion of the tests dealing with road signs is in English. It's unclear whether the proposal would require a change, and the BMV has not requested an exemption. Rep. Mara Candelaria Reardon, D-Hammond, said the exams are an important public safety issue because permanent residents are not required to know English as citizens are. * * *

Supporters said the state should promote the English language.

"We are making our statement that even though we're a diverse country, we have one official language, and it's English," said Rep. Ralph Foley, R-Martinsville.

Delph said Indiana residents are tired of pressing "1" for English when calling businesses, or hearing Spanish announcements over the Wal-Mart intercom or struggling to understand a worker in the McDonald's drive-thru. While the proposal doesn't address those issues, he said it does send a message that English is clearly the state's official language. The state's website shouldn't have Spanish pages, he said, and state universities shouldn't print applications for foreign students in different languages at taxpayer expense.

Crouch's bill passed the House on a 63-26 vote, with a handful of Democrats joining Republicans to approve the measure and several Republicans voting against it. That bill now heads to the Senate, and Delph's immigration bill is slated to get a Senate hearing Feb. 2.

Posted by Marcia Oddi on Sunday, January 30, 2011
Posted to Indiana Law

Courts - "Convicted attorneys are still practicing: Some even have kept their licenses while serving time for their crimes"

That is the headline to this story today in the Milwaukee Journal Sentinel, reported by Cary Spivak and Ben Poston. This is only one of the three related stories in today's JS, plus a neat interactive graphic. The story begins:

At least 135 attorneys with criminal convictions are practicing law today in Wisconsin - including some who kept their licenses while serving time and others who got them back before they were off probation, a Journal Sentinel investigation has found.

The roster includes lawyers with felony or misdemeanor convictions for fraud, theft, battery and repeat drunken driving, as well as offenses involving political corruption, drugs and sex. A child-sex offender got probation for his crime but never lost his law license. A politician convicted in a check-kiting scheme was reprimanded but also kept his license.

Another 70 lawyers were charged with crimes but succeeded in having the charges reduced or avoided conviction by completing a deferred prosecution plan. All were given the green light to practice law.

The newspaper's review, which ran nearly 24,000 Wisconsin lawyers against state and federal court records, found that lawyers who are convicted of crimes are then subjected to a slow-moving disciplinary system that operates largely behind closed doors.

Wisconsin appears to be comparatively lenient in dealing with lawbreaking lawyers.

Unlike many other states, where the licenses of lawyers convicted of serious crimes such as fraud are immediately suspended to give regulators time to determine the proper sanction, Wisconsin sometimes allows criminals to keep their law licenses even while they are behind bars.

"The system is run by lawyers and is for lawyers," said Michael Frisch, a national expert in legal discipline who teaches law at Georgetown University. "It's called self-regulation, and it's a pretty good system for lawyers."

And there are consequences that can affect future clients.

Statistics provided by the state Supreme Court's Office of Lawyer Regulation show that in about 40% of the cases reviewed by the agency, lawyers who received only minor sanctions for violating discipline rules went on to reoffend.

Wisconsin's low-profile system for disciplining lawyers has drawn more attention recently after it was disclosed that the Office of Lawyer Regulation took no action against former Calumet County District Attorney Kenneth Kratz after he sent sexually suggestive text messages to a domestic violence victim.

Posted by Marcia Oddi on Sunday, January 30, 2011
Posted to Courts in general

Environment - "Is the Gary Sanitary District turning Lake Michigan into sewer? "

A lengthy story today in the Gary Post Tribune, reported by Gitte Laasby. Some quotes:

GARY -- Over the past three years, the Gary Sanitary District has discharged at least 6.8 billion gallons of raw and partially treated sewage to the bacteria-impaired Grand Calumet River and the flood-prone Little Calumet River, according to a Post-Tribune analysis of state data.

And there's no end in sight. Neither the state or federal government has set a deadline for Gary to reduce its overflows and treatment bypasses.

The federal government says it's negotiating a legal agreement with Gary, but hasn't reached one since it started trying five years ago. The Indiana Department of Environmental Management hasn't issued a single fine against the district for its more than 600 combined sewer overflows and bypasses since 2008. * * *

Municipalities traditionally stop sewer overflows by separating storm and sanitary sewers. That increases capacity and avoids releasing untreated sanitary sewage. But the cost to do so is in the tens of millions of dollars, and the incentive can be small if enforcement is limited. The city of Hobart recently accepted a fine of $1,000 from IDEM for a 3-million-gallon overflow.

"That $1,000 pales in comparison. So if you're under a tight budget versus millions of dollars to make these improvements, maybe a little more enforcement is in order," said [Jennifer] Nebe from Save the Dunes. "These upgrades are so costly ... and nobody likes to hear about taxes being raised or new fees on their bills, but this money has to come from somewhere. When people hear about sewage being discharged, I think they might start to understand the need for these fees."

[Henry Henderson, Midwest director for the Natural Resources Defense Council] said many other cities on the Great Lakes, including Chicago, Milwaukee and Detroit are facing issues to similar Gary. Researchers estimate 24 billion gallons of sewage get dumped into the Great Lakes each year. Some communities are now finding money to reduce that by simultaneously addressing sanitary infrastructure needs, transportation needs and energy costs.

Posted by Marcia Oddi on Sunday, January 30, 2011
Posted to Environment

Ind. Gov't. - "For Governors, Medicaid Looks Ripe for Slashing"

This long survey article by Kevin Sack from Saturday's NY Times may help provide perspective. It begins:

Hamstrung by federal prohibitions against lowering Medicaid eligibility, governors from both parties are exercising their remaining options in proposing bone-deep cuts to the program during the fourth consecutive year of brutal economic conditions.

Because states confront budget gaps estimated at $125 billion, few essential services — schools, roads, parks — are likely to escape the ax. But the election of tough-minded governors, the evaporation of federal aid, the relentless growth of Medicaid rolls and the exhaustion of alternatives have made the program, which primarily covers low-income children and disabled adults, an outsize target.

Posted by Marcia Oddi on Sunday, January 30, 2011
Posted to Indiana Government

Ind. Courts - Indiana Judicial Center reports on matters of interest to the judiciary

The Indiana Judicial Center has completed summaries of bills selected to be of interest to the judiciary which were heard in committee last week, which was the third week of committee hearings in the 2011 session. Among the summaries of bills passed out of committee was SB 301, which would temporarily increase the automated record keeping fee to $10 for cases filed after June 30, 2011 and before July 1, 2015 and then permanently increase the fee from the base $4 to $7 after June 30, 2015.

Posted by Marcia Oddi on Sunday, January 30, 2011
Posted to Indiana Courts

Saturday, January 29, 2011

Ind. Law - Collections firm sues Allen County attorney

From a brief item in the Jan. 29, 2011 Fort Wayne Journal Gazette:

A collections company sued local attorney Daniel E. Serban in Allen Superior Court this week, alleging he failed to return money he collected on its behalf.

Serban, of Roanoke, is currently facing felony charges of corrupt business influence, forgery and theft, alleging he failed to distribute money paid into Serban Law Office’s Trust Account to the appropriate clients or to those entitled by court order to receive it. * * *

According to the Indiana Roll of Attorneys, Serban remains an attorney in good standing.

Posted by Marcia Oddi on Saturday, January 29, 2011
Posted to Indiana Law

Ind. Gov't. - "Indiana Senate leader promises redistricting hearings across state"

Lesley Stedman Weidenbener reported in the Louisville Courier Journal on Friday:

INDIANAPOLIS — Senate President Pro Tem David Long, R-Fort Wayne, said he plans to schedule hearings in communities throughout Indiana to gather public input on legislative redistricting.

Lawmakers expect to receive population data from the U.S. Census Bureau in the second week of February that they’ll use to draw new maps for state House and Senate districts as well as for the state’s nine U.S. House districts.

“Sometime in the beginning of March we can begin the real work of hunkering down and begin to prepare our plans,” Long said. * * *

Republican leaders that control the House and Senate have said they intend to create districts that are fair and keep so-called communities of interest together. But Long said lawmakers also want to hear what Hoosiers think about the districts.

“We want to try to have three plus meetings around the regions — and more than that, hopefully — where we can sit down with the public and have input from them on these issues,” he said.

But the House and Senate can’t officially get started on the maps until the data arrives. Long said Indiana will be among the first states to receive its Census information.

See also this ILB entry from Dec. 19, 2010, where Speaker Bosma expressed concern that "members of the public might confuse the hearings held by the citizen panel with those held by legislative committees."

Posted by Marcia Oddi on Saturday, January 29, 2011
Posted to Indiana Government

Courts - "Most capital punishment states have run out of key injection drug, or will soon"

Including Indiana, according to this lengthy AP story reported by Andrew Welsh-Huggins: A few quotes:

Most of the 35 U.S. states with capital punishment have run out of a key lethal injection drug or will soon, according to an Associated Press review. And in many places, switching to another drug could prove a difficult, drawn-out process, fraught with legal challenges from death row that could put executions on hold.

The drug, an anesthetic called sodium thiopental, has become so scarce over the past year that a few states have had to postpone executions. Those delays could become widespread across the country in the coming months because of a decision last week by the sole U.S. manufacturer to stop producing it.

The story goes through the various states, including:
Seventeen states that use the drug have no supply at all: Colorado, Connecticut, Delaware, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Montana, Nevada, New Hampshire, North Carolina, Oregon, Utah, Washington and Wyoming. None of those states has an execution scheduled.

Posted by Marcia Oddi on Saturday, January 29, 2011
Posted to Courts in general

Law - "In the Age of Alternative Reproduction, Who Are a Child's Parents?"

So asks attorney Liz Mandarano in an article in the Huffington Post today. The article includes "A sample of notable state laws and judicial rulings in the past few years reflect how unsettled, inconsistent and controversial the question of parentage is." Two samples:

In Michigan, a married couple with fertility issues contracted with a surrogate mother, who had acted as a surrogate for three other children previously for other women. The resultant twins were produced by fertilizing an egg and a sperm from anonymous donors, so no party shared any DNA with the children. Upon hearing that the wife had a psychological disorder, the surrogate decided to object to legal transfer at the required guardianship hearing. The court sided with the surrogate because Michigan strongly opposes surrogacy contracts and, in fact, deems such contracts as a crime punishable by up to five years in prison as well as fines. * * *

In Indiana, the Court of Appeals reversed a trial court's ruling that the legal mother of a child was a non-related surrogate. In that case, a married couple enlisted the wife's sister to carry her child as a gestational surrogate. The court remanded the case back to the trial court with instructions to conduct an evidentiary hearing to determine motherhood based on biological, not gestational relationship. Unlike Michigan, the fact that Indiana law does not recognize the validity of surrogacy agreements was basically ignored.

The Indiana case is Paternity of R.; T.G. and V.G. v. State of Indiana - see the Feb. 10, 2010 ILB entry here and this one from Jan. 28, 2010.

Posted by Marcia Oddi on Saturday, January 29, 2011
Posted to General Law Related

Friday, January 28, 2011

Courts - Still more on: Illinois COA boots Rahm Emanuel from Chicago ballot

Comparable?

The Jan. 27, 2011 Illinois Supreme Court decision in the dispute contesting Rahm Emanual's eligibility for the Chicago mayoral race where the Court ruled "what it means to be a resident for election purposes was clearly established long ago, and Illinois law has been consistent on the matter since at least the 19th Century," and

The April 28, 1988 Indiana Supreme Court decision in State Election Board v. Evan Bayh, where the Court concluded:

The trial court was correct that, as a matter of law, residence means domicile for purposes of art. v, § 7 of the Indiana Constitution.

The trial court also found that Bayh's original domicile was Indiana. The court determined that Bayh did not intend to abandon his Indiana domicile and establish a new, permanent residence elsewhere. It found that this intention was evidenced by acts consistent with retaining domicile in Indiana. While there was conflicting evidence on these questions, the record supports the court's conclusion that Bayh's residence for the five years next preceding the November 1988 election was Indiana and that he is eligible for the office of Governor.

In the Indiana case, the question revolved around the Ind. Const., art. V, Sec. 7:
No person shall be eligible to the office of Governor • • • who shall not have been five years a citizen of the United States and also a resident of the State of Indiana during the five years next preceding his election. • • •
At issue in the Chicago case was this provision:
[T]he Board concluded that the candidate met the qualification for candidacy, contained in subsection 3.1–10–5(a) of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/3.1–10–5(a) (West 2008)), mandating that he had “resided in” Chicago for the one year preceding the February 22, 2011, mayoral election.
From the NYT:
A state law dating to 1871 requires candidates for mayor to reside in the city for at least one year before the Feb. 22 election. The question at the center of the fight: what does “reside” actually mean — physically waking and sleeping in the city or, as Mr. Emanuel contended, owning a house, paying taxes, voting and storing his prized possessions (like the outfits his children wore as newborns) in his basement, with the intent of returning?
In the Chicago case, Mr. Emanuel had lived in Chicago most of his life, except for the less than two years serving as Chief of Staff to the President. In the Bayh case, it was argued that Mr. Bayh had spent little of his life in Indiana, growing up in the D.C. area where his father was a Senator, etc.

Posted by Marcia Oddi on Friday, January 28, 2011
Posted to Courts in general

Ind. Gov't. - "Timetable for IURC invites scrutiny: Utility watchdog oks short debate period for Rockport project"

Ted Evanoff reports today in the Indianapolis Star:

Only months after an ethics scandal rocked the state's top utility watchdog, the IURC has set off a new controversy.

Lawyers say the Indiana Utility Regulatory Commission could sharply cut the time available for public debate on a massive energy project proposed at Rockport.

Private investors want to build a coal gasification plant that would be paid for largely by about 1 million Indiana households burning natural gas into mid century.

The IURC has the final say on whether the project goes forward, but a timetable accepted by the agency Thursday wraps up hearings in early May.

"It's not clear to us why there's such a rush. The parties have proposed a rather expedited procedural schedule," said Clayton Miller, an Indianapolis lawyer representing an array of smaller gas utilities, including Ohio Valley Corp. * * *

Many gas utilities in the state were reluctant to sign on for the project two years ago and remain hesitant about the plant proposed east of Evansville on the Ohio River.

That unease fed concerns at the first preliminary hearing on the case Thursday.

During the hearing, the IURC accepted a timetable that means it could rule on Rockport about four months earlier than it usually takes to decide complicated cases. The timetable sets the final hearing May 3 and has the IURC rule sometime after July 11.

Lawyers expect a final decision by Labor Day, which means the process could last about eight months from the time the original paperwork was filed with the IURC.

Other cases that take lots of testimony and require careful attention to details in technical reports can often run on for a year, said Jennifer Terry, an Indianapolis lawyer who represents factories that buy natural gas.

"There's going to be a lot of technical details for folks to digest," Terry said. "This is a unique project (at Rockport) that has never been tried anyplace else, certainly not on this scale."

The timetable was assembled in large part by Randolph Seger, an Indianapolis lawyer representing the Indiana Finance Authority.

"It's a good thing for Indiana," Seger said. "We simply want all the benefits from this to be realized as quickly as possible."

During the preliminary hearing Thursday, Miller and other attorneys sat quietly while Seger assembled the timetable in talks with other lawyers. IURC commissioners accepted it with little comment. After the hearing, several lawyers expressed dismay.

"The faster it moves, the less scrutiny it gets," said Jerry Polk, an Indianapolis lawyer representing the Citizens Action Coalition, Sierra Club and Valley Watch, an environmental group in southwest Indiana.

IURC spokeswoman Danielle McGrath defended the commission, saying none of the lawyers objected to the timetable during the hearing. She noted the timetable is tentative and can be adjusted by the agency at another preliminary hearing in coming weeks.

For background, start with this ILB entry from Jan. 26th.

For those unfamiliar with the IURC site (including myself), here is the schedule of hearings before the IURC for the period of 1/24/11 to 1/28/11.

The hearing that is the subject of the Star story is a prehearing conference re DOCKET NO: 43976-NONE.

Here is the Amended Joint Petition and Request for Expedited Treatment filed with the IURC on Jan. 24, 2011. I found it by searching for the docket number via the document center.

I have not, however, located the Expedited Schedule or Timetable reported to have been accepted by the Commission on Thursday.

Posted by Marcia Oddi on Friday, January 28, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Keith Eberle v. State of Indiana, a 24-page opinion, Judge Darden writes:

Keith Eberle appeals his convictions, after a jury trial, for class D felony intimidation, class C felony stalking, and two counts of class B misdemeanor harassment. We affirm and remand with instructions.

ISSUES 1. Whether the State established that Ohio County was a proper venue for trial. 2. Whether the trial court properly refused Eberle’s proposed venue instructions. 3. Whether sufficient evidence supports Eberle’s convictions. 4. Whether the trial court’s failure to vacate lesser-included offenses that were merged for purposes of sentencing violated Indiana’s prohibition against double jeopardy.

In Christopher West v. State of Indiana , a 9-page opinion, Judge Riley writes:
Appellant-Defendant, Christopher West (West), appeals his convictions of Count I, using fraud or misrepresentation in the offer or sale of a security, a Class C felony, Ind. Code § 23-2-1-12; Count II, the offer or sale of an unregistered security, a Class C felony, I.C. § 23-2-1-3; and Count III, the offer or sale of a security by an unregistered broker-dealer, a Class C felony, I.C. § 23-2-1-8.1 We affirm.

ISSUES West raises three issues for our review, which we restate as follows:(1) Whether the trial court erred in denying West’s motion to dismiss;(2) Whether the trial court erred in instructing the jury; and(3) Whether there is sufficient evidence to support West’s convictions.

NFP civil opinions today (1):

In Luiz Alves v. Damon R. Leichty, et al. (NFP), a 5-page opinion, Judge Friedlander writes:

Luiz Alves, pro se, appeals from the trial court’s order granting summary judgment in favor of Damon R. Leichty, James W. Tuesley, and Barnes & Thornburg LLP (collectively, B & T) and entering judgment on B & T’s counterclaim against Alves in the amount of $93,992.40 plus costs. Alves presents two issues for our review, of which the following is dispositive: Did the trial court err by granting summary judgment in favor of B & T on its counterclaims for account, account stated, and services rendered? We affirm.
NFP criminal opinions today (7):

In State of Indiana v. Jermain Blue (NFP), an opinion on a motion for rehearing, Chief Judge Robb writes:

The State petitions this court for rehearing of our November 3, 2010 opinion. In that opinion, we affirmed the trial court’s suppression of evidence obtained pursuant to a search warrant that was invalid under the fruit of the poisonous tree doctrine. State v. Blue, Cause No. 02A03-1003-CR-139 (Ind. Ct. App., Nov. 3, 2010). The warrant referred to evidence obtained in several trash pulls but not to the initial trash pull, which police conducted without reasonable suspicion. Concluding the initial trash pull was improper and that the following trash pulls and investigation were fruits of the poisonous tree, we deemed the warrant invalid and affirmed the trial court’s suppression of evidence obtained under the authority of the warrant. The State’s primary argument on rehearing is that the improper first trash pull was a single act in an ongoing investigation of Blue, and therefore its impropriety did not render all subsequent investigatory actions – and the subsequent affidavit and search warrant – invalid. We grant the State’s petition for rehearing to clarify our reasoning under the fruit of the poisonous tree doctrine, but reaffirm our opinion in all respects.
Dennis J. Turner v. State of Indiana (NFP)

Travis R. Rush v. State of Indiana (NFP)

John Wilson v. State of Indiana (NFP)

Nikol Hutnik v. State of Indiana (NFP)

O.V. v. State of Indiana (NFP)

Pretiss Huff v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 28, 2011
Posted to Ind. App.Ct. Decisions

Courts - “Increasingly, judges in civil cases are granting access to online caches that had formerly been considered off-limits,”

That is a quote from this Reuters Legal article, repeated in this WSJ Law Blog entry this morning by Ashby Jones, headed "The Latest Pitfall for Litigants: That Trove of Facebook Pictures."

Posted by Marcia Oddi on Friday, January 28, 2011
Posted to Courts in general

Courts - "Hoosier legend Oscar Robertson is suing the NCAA for using images of him playing for UC on current trading cards"

The story, from WLWT Cincinnati, reports that:

Attorney Stan Chesley said that Robertson found out about the cards when fans started sending them to him to be signed.

The lawsuit alleges that the NCAA and others have illegally licensed, and received compensation for, the images and likenesses of former college athletes like Robertson.

ILB: The other plaintiffs in the suit are Ray Ellis and George Tate. The case, filed Jan. 26, 2011 in the ND Calif., is Oscar P. Robertson , Tate George and Ray Ellis v. National Collegiate Athletic Association, Collegiate Licensing Company and Electronic Arts, Inc. (3:2011cv00388)

Posted by Marcia Oddi on Friday, January 28, 2011
Posted to Courts in general

Law - "Supreme Court of Kentucky adopts statewide rules for family law cases"

So reports the Kentucky Law Blog in a lengthy entry today. Some quotes:

FRANKFORT, Ky. -- For the first time, the Supreme Court of Kentucky has adopted uniform rules for family law cases statewide, Chief Justice of Kentucky John D. Minton Jr. and Deputy Chief Justice Mary C. Noble announced at a news conference today at the Kentucky Capitol.

The Family Court Rules of Procedure and Practice [ILB: The rules begin on p. 17 of 41] apply to all family law cases, which are handled by Family Court judges in 71 Kentucky counties and by circuit and district judges in the 49 other counties without a Family Court. Family law cases include such matters as divorce, termination of parental rights, domestic violence, child support, juvenile status offenses, adoption, and dependency, neglect or abuse.

The rules became effective Jan. 1, 2011, and will have a significant impact on the practice of family law in Kentucky.

Previously there were no statewide rules specifically for family law cases. Judges followed the Supreme Court Civil Rules and created local family law rules for their jurisdiction. The new rules are based on best practices in domestic and child welfare cases in Kentucky courts. They provide a uniform set of rules for judges, attorneys and parties to follow statewide to help ensure safety, permanency and well-being for children and families.

“These rules will change the way family law is practiced in Kentucky,” Chief Justice Minton said. “The many Kentucky citizens involved in family law proceedings – some of the most sensitive and difficult cases to come before our courts – will benefit from the dedication and vision of Justice Noble and all those who assisted with drafting these rules.”

Posted by Marcia Oddi on Friday, January 28, 2011
Posted to General Law Related

Ind. Gov't. - "Gary mayoral hopefuls defend bankruptcy "

A story today by Jon Seidel of the Gary Post-Tribune begins:

GARY -- At least three of Gary's declared mayoral candidates have bankruptcy filings in their past, including one front-runner, but each of them says the bankruptcy has no bearing on their ability to manage finances of the cash-strapped city.

Bankruptcy filings can be found in the federal district covering Northern Indiana for Ragen Hatcher, Robert L. Buggs Sr. and Jeffery Tatum. Hatcher is considered a major contender for the mayor's office, but she hasn't filed paperwork yet to run. She promises she will do so by the Feb. 18 deadline.

Posted by Marcia Oddi on Friday, January 28, 2011
Posted to Indiana Government

Ind. Courts - Judge James D. Humphrey, Circuit Court of Dearborn and Ohio Counties, appointed to the Board of Directors of United Community Bancorp

From a press release today:

LAWRENCEBURG, Ind., Jan. 27, 2011 /PRNewswire/ -- United Community Bancorp (the "Company") (Nasdaq: UCBA) today announced that its Board of Directors declared a quarterly cash dividend of $0.11 per share, payable on or about February 25, 2011, to stockholders of record as of the close of business on February 7, 2011. United Community MHC, the Company's mutual holding company parent, will waive receipt of the dividend.

The Company also today announced that the Company's Board of Directors has appointed James D. Humphrey to serve as a director of the Company. In connection with his appointment, Mr. Humphrey will serve as a member of the Company's Nominating and Corporate Governance Committee, and was also appointed as a director of the Bank and United Community MHC, the Company's parent mutual holding company. Mr. Humphrey has served as the Judge of the Circuit Court of Dearborn and Ohio Counties, Indiana since January 1, 1999.

Posted by Marcia Oddi on Friday, January 28, 2011
Posted to Indiana Courts

Law - "Teaching Alternatives to WEXIS in the Legal Academy"

Interesting post from Law Librarian Blog. A quote:

[W]elcome to the huge divide between research instruction in the legal academy and law firm legal research. If the legal academy is going to take legal skills training seriously, instructors in legal research, including academic law librarians, have to extend their expertise. It is one thing to indoctrinate law students in WEXIS. It is quite another thing for academic law librarians to allow this to happen without providing instruction on alternatives to WEXIS.

Posted by Marcia Oddi on Friday, January 28, 2011
Posted to General Law Related

Courts - More on: Illinois COA boots Rahm Emanuel from Chicago ballot [Updated]

Illinois Supreme Court reversed yesterday.

See "Courts - Illinois COA boots Rahm Emanuel from Chicago ballot," from the Volokh Conspiracy.

See "Illinois Court Unanimously Reverses Lower Court, Putting Rahm Back on the Ballot," from Election Law Blog, includes links to the opinions. Some interesting points.

[Updated]
See this entry from Law Librarian Blog, headed "Rahm Opinion a Bit Uncivil?"

Posted by Marcia Oddi on Friday, January 28, 2011
Posted to Courts in general

Ind. Law - Patrick L. Baude, 67 -- APRIL 7, 1943 — JAN. 26, 2011

From today's Bloomington Herald-Times:

Patrick L. Baude, 67, of Bloomington, Ind., died at his residence on Jan. 26, 2011. He was born in Independence, Kan., on April 7, 1943, to Andre and Jane (O’Brien) Baude.

Patrick earned a J.D. from the University of Kansas and an LL.M. from Harvard. He was a professor at the Maurer School of Law at Indiana University from 1968 to 2008 and continued to teach after retirement. He was also the wine columnist for Bloom magazine.

He is survived by his wife, Julia Lamber; their sons, William and Jonathan; his daughters, Virginia and Leora; and grandchildren, Eleanor, Henry and James. He is also survived by his sister, Jabotte Nydam.

Memorial contributions may be made to Mother Hubbard’s Cupboard at 1010 S. Walnut St., Bloomington, IN 47401, or the I.U. Foundation at P.O. Box 500, Bloomington, IN 47402.

A celebration of life will be held at a later date.

Allen Funeral Home is handling arrangements. Condolences may be sent to www.allenfuneralhome.org.

Earlier ILB entry here.

Posted by Marcia Oddi on Friday, January 28, 2011
Posted to Indiana Law

Thursday, January 27, 2011

Ind. Courts - More on "Paternity affidavits challenged: New rule discriminates against them, says suit by foreign nationals"

Updating this ILB entry from earlier today, here is a copy of today's 8-page ruling by Judge Tanya Walton Pratt in the case of L.P., et al. v. Commissioner, Indiana State Department of Public Health.

Posted by Marcia Oddi on Thursday, January 27, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Law - More on: IU Bloomington law professor Patrick Baude dies

Updating yesterday afternoon's ILB entry, as of this posting neither the Bloomington Herald-Times nor the Indiana Daily Student has yet posted a story or obituary on Professor Baude's death Wednesday.

However, the H-T "list of death notices reported to the H-T today", as updated at 2:03 pm, now includes this listing:

Patrick L. Baude, 67, of Bloomington, died Wednesday
There likely will be a story or obituary or both in the H-T tomorrow and the ILB will post any information about planned arrangements.

Posted by Marcia Oddi on Thursday, January 27, 2011
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Steve Nevill v. Woodland Heights Property Owners Assoc. (NFP) - unpaid property owners’ association dues and late fees

Terrace Garden Association, Inc. v. Len C. Lantz, et al. (NFP) - quiet title, adverse possession

NFP criminal opinions today (5):

Tony E. Bennett v. State of Indiana (NFP)

Guadalupe Torres v. State of Indiana (NFP)

David P. Pollack v. State of Indiana (NFP)

Robert A.C. Murphy v. State of Indiana (NFP)

Barbara R. Ball v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 27, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Closed door Wisconsin Supreme Court meeting riles some justices"

Interesting story today by Patrick Marley of the Milwaukee Journal Sentinel begins:

Madison — State Supreme Court Justice Ann Walsh Bradley said a majority on the court pushed for changing court rules behind closed doors, breaking with a decade-long tradition of debating court rules in public meetings.

Bradley said she opposed holding recent talks in private and she and two other justices refused to participate in discussions over court finances because it wasn't being done in public.

"I feel strong when it comes to administrative matters that it shouldn't be done in secret behind closed doors," she said. "It belongs out in the public."

Posted by Marcia Oddi on Thursday, January 27, 2011
Posted to Courts in general

Ind. Gov't. - "Moody’s to Factor Pension Gaps in States’ Ratings"

This story today in the NY Times business section, reports by Mary Williams Walsh, begins:

Moody’s Investors Service has begun to recalculate the states’ debt burdens in a way that includes unfunded pensions, something states and others have ardently resisted until now.

States do not now show their pension obligations — funded or not — on their audited financial statements. The board that issues accounting rules does not require them to. And while it has been working on possible changes to the pension accounting rules, investors have grown increasingly nervous about municipal bonds.

Moody’s new approach may now turn the tide in favor of more disclosure. The ratings agency said that in the future, it will add states’ unfunded pension obligations together with the value of their bonds, and consider the totals when rating their credit. The new approach will be more comparable to how the agency rates corporate debt and sovereign debt. Moody’s did not indicate whether states’ credit ratings may rise or fall.

Under its new method, Moody’s found that the states with the biggest total indebtedness included Connecticut, Hawaii, Illinois, Kentucky, Massachusetts, Mississippi, New Jersey and Rhode Island. Puerto Rico also ranked high on the scale because its pension fund for public workers is so depleted that it has virtually become a pay-as-you-go plan, meaning each year’s payments to retirees are essentially coming out of the budget each year.

Other big states that have had trouble balancing their budgets lately, like New York and California, tended to fare better in the new rankings. That is because Moody’s counted only the unfunded portion of states’ pension obligations. New York and California have tended to put more money into their state pension funds over the years, so they have somewhat smaller shortfalls.

Indiana does not appear on the NYT graphic.

Posted by Marcia Oddi on Thursday, January 27, 2011
Posted to Indiana Government

Ind. Courts - "Paternity affidavits challenged: New rule discriminates against them, says suit by foreign nationals" [Updated]

Carrie Richie reports today in the Indianapolis Star about a suit brought in federal court by the Indiana ACLU against the State Department of Health "over the way it handles paternity affidavits -- documents unmarried parents can fill out to designate a child's legal father." Some quotes:

The department used to accept paternity affidavits even if they were missing one or both parents' Social Security numbers. But since July 1, it has required both parents' Social Security numbers to validate the forms.

The lawsuit claims the change makes it impossible for people who cannot get Social Security numbers to claim paternity and deprives their children, who are U.S. citizens by birth, of the benefits of having a legal father, such as the ability to claim child support.

The immigration status of the parents in the lawsuit doesn't allow them to get Social Security numbers, according to Ken Falk, legal director of the ACLU of Indiana, but he declined to elaborate. He said the health department's practices affect illegal immigrants and legal residents, such as people who are in the U.S. on certain kinds of visas.

[Updated] From an update to the Star story posted at 11:30 am:
A federal judge today ordered that the state must accept paternity affidavits, the documents unmarried parents file to establish paternity, even if they don't have both parents' Social Security numbers.

Judge Tanya Walton Pratt said that a lawsuit challenging the constitutionality of the way the State Department of Health handled the documents since July might succeed and ordered a preliminary injunction, which will force the state to change its practices while the lawsuit goes through the court system.

Posted by Marcia Oddi on Thursday, January 27, 2011
Posted to Indiana Courts

Ind. Courts - More on: State Road 135 land annexation dispute before Supreme Court today

Updating this ILB entry from Jan. 20th about the Supreme Court oral argument heard on the 20th in the case of City of Greenwood v. Town of Bargersville, Diana Penner of the Indianapolis Star has a story today headed "Land battle continues for Greenwood, Bargersville: both want 1,847 acres along Ind. 135." Some quotes:

The dispute centers on about 1,847 acres along Ind. 135, about three miles from Greenwood's boundary.

Both municipalities would like the valuable land, estimated to involve about $3.47 million of net taxable assessed value this year.

Bargersville already has extended sewer service to the area, and in that process, some landowners waived their right to object to annexation. Bargersville contends that those waivers amount to consent, but Greenwood counters that waivers don't translate to consent.

Either way, Greenwood contends, Bargersville doesn't have approval or lack of an objection from enough of the landowners to annex the area.

Bargersville won the first round in Johnson Superior Court. Greenwood appealed, winning at the next level when the Indiana Court of Appeals in July reversed the trial court decision.

In last week's appearance before the state Supreme Court, attorney Karl Mulvaney, arguing for Greenwood, said state law makes a distinction between waiving a landowner's right to object and affirmative consent.

Mulvaney said that if lawmakers had intended those concepts to be interchangeable, they would have said so.

But attorney Mark Crandley, representing Bargersville, interpreted the laws differently. He contended it was clear to landowners they were giving up their right to oppose annexation when they signed the waivers.

Posted by Marcia Oddi on Thursday, January 27, 2011
Posted to Indiana Courts

Ind. Courts - More on "I know it's how I got the job, but merit selection would be better"

Updating this ILB entry from Jan. 25th, Dan Carden of the NWI Times reports:

A Senate committee Wednesday voted to terminate the Lake County Superior Court's hybrid judicial selection system, where most judges are appointed but four are elected, in favor of an all-merit selection system.

Senate Bill 499, sponsored by state Sen. Sue Landske, R-Cedar Lake, and state Sen. Karen Tallian, D-Ogden Dunes, now advances to the full Republican-controlled Senate.

Leaders of Lake County's judicial community told the Senate Judiciary Committee that merit selection has given Lake County one of the most experienced, qualified and diverse judiciaries in the state.

"We're proud of our bench. We're proud of what it has done," said Judge Julie Cantrell, an elected county judge who favors merit selection.

Under the legislation, the four elected judges would be on the ballot for retention when their current terms expire.

Future judicial vacancies would be filled by appointment of the governor who chooses from three candidates recommended by the Lake County Superior Court Judicial Nominating Commission.

The elected judges are a remnant of Indiana's small claims courts, which all featured elected judges. Those courts have been folded into the superior court system, but the selection method for those judges never changed.

As a result, Lake County is forced to spend extra money on duplicate staff because workers assigned to elected judges are prohibited from working in "nonpartisan" courtrooms.

A representative of the Indiana State Bar Association said it supports Lake County's merit selection system, while a leader of the Indiana Prosecuting Attorneys Council told the committee it favors electing all judges.

Posted by Marcia Oddi on Thursday, January 27, 2011
Posted to Indiana Courts

Ind. Gov't. - "Bankruptcy bill moving forward"

Updating this entry from Jan. 24th headed "Law would let cities declare bankruptcy," Jon Seidel of the Gary Post Tribune writes today:

A distressed Hoosier government would need to pay the salary of its emergency manager under an altered Senate Bill 105 that left committee Wednesday, its author said.

Sen. Ed Charbonneau, R-Valparaiso, successfully sought several changes from the Senate's judiciary committee to his proposal for a reformed Distressed Unit Appeals Board.

The bill would give the DUAB power to appoint an emergency manager to sort out a local government's financial problems and try to avoid a municipal bankruptcy filing. However, it also creates a path to bankruptcy that doesn't currently exist for Indiana cities and towns.

The last time the committee met, several questions were left unanswered. Charbonneau said his amendment would "address most of the concerns," the biggest of which dealt with the ability of qualifying creditors to send a local government to the DUAB. Their ability to do so was written out of the bill.

"It was one of the real sticking points," Charbonneau said.

His bill would now give local governments a chance to appeal the DUAB's ruling after petitioning the board, and it would allow a mayor elected after the DUAB's decision to seek a suspension of that ruling so the new executive has a chance to work things out.

Finally, Charbonneau said the new bill wouldn't be effective until July 1, and he said it would not apply to any pending petitions before the DUAB. Gary is the only city that is petitioning the board. It also did so in 2009 and 2010. * * *

The judiciary committee endorsed the bill in a 9-0 vote. It now moves to second reading in front of the full Senate, where it could be amended further.

[More] Here is a story from the Jan. 26th NY Times headed "New York State Takes Control of Nassau’s Finances." David M. Halbfinger's story begins:
UNIONDALE, N.Y. — A state oversight board has seized control of Nassau County’s finances, saying the wealthy and heavily taxed county had nonetheless failed to balance its $2.6 billion budget despite months of increasingly ominous warnings.

The 6-0 vote here on Wednesday afternoon by the Nassau County Interim Finance Authority gives it veto power over the county’s budget, labor contracts, borrowings and other major financial commitments.

The board cited a deficit that reached nearly $350 million at one point last year but that was not fully closed, it said, despite assurances to the contrary by the county executive, Edward P. Mangano, a Republican.

It was only the second time a county had been taken over by New York State. The first was Erie County, the state’s 24th wealthiest county, where the median household income is half that of Nassau’s, New York’s richest county. The control period in Erie ended in 2009.

The move effectively puts the finance authority board, a six-man panel of state-appointed financial experts and other professionals, at the bargaining table opposite Nassau’s civil servants, police officers and other labor unions.

Posted by Marcia Oddi on Thursday, January 27, 2011
Posted to Indiana Government

Wednesday, January 26, 2011

Ind. Law - IU Bloomington law professor Patrick Baude dies

Attorney Jim Fenton from Fort Wayne has just sent this note. I'll add more information as I obtain it:

One of the most beloved and respected law professors at IU Bloomington, Patrick Baude, passed away today at his home in Bloomington. A law school staff member forwarded this info as reported by the Dean. Many of your readers will be saddened to hear this news, myself among them. Our thoughts and prayers will be with his family.
Here is Prof. Baude's webpage at IU Law.

Here is the sad announcement from Dean Lauren Robel:

Dear Friends,

Our beloved friend and cherished colleague, Pat Baude, died this afternoon at his home. Our prayers are with our dear colleague, his wife, Julia Lamber, and their children. Pat’s importance to our school, and to generations of students, is beyond words.

Posted by Marcia Oddi on Wednesday, January 26, 2011
Posted to Indiana Law

Law - Fort Wayne Journal Gazette editorial today on back-alley abortions

Today's Fort Wayne Journal Gazette editorial concludes:

When safe, legal abortions are no longer available, the horrific back-alley abortions that preceded Roe v. Wade will return. * * *

The pro-life movement has focused its efforts on making access to safe abortions as difficult as possible. They have advocated laws requiring waiting periods and mandatory ultrasound pictures, as if the desperate women haven’t already agonized over their unplanned pregnancies.

Those same opponents have pushed restrictions on clinics and abortion providers in an effort to drive them out of business, refusing to accept the fact that outlawing abortion will never eliminate its practice.

[Philadelphia illegal abortionist Kermit Gosnell's] alleged crimes should sicken and sadden every American, but they also should serve as a reminder and lesson of what happened before abortion was safe and legal – and as a warning of what could happen once again.

Posted by Marcia Oddi on Wednesday, January 26, 2011
Posted to General Law Related

Ind. Decisions - One today from Supreme Court

In Fredrick Michael Baer v. State of Indiana, a 37-page, 5-0 opinion, Chief Justice Shepard writes:

A jury found Fredrick Michael Baer guilty of two counts of murder and sentenced him to death. In doing so, it rejected his request for a verdict of guilty but mentally ill. We affirmed on direct appeal. Baer then sought post-conviction relief, which the trial court denied. On appeal from that denial he argues ineffective assistance of trial and appellate counsel, that his death sentence violates the Eighth Amendment of the U.S. Constitution, and that the trial judge erred in rejecting his guilty but mentally ill plea. We affirm the post-conviction court.

Posted by Marcia Oddi on Wednesday, January 26, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In S.S. v. Review Board , a 2-1, 15-page opinion in a pro se appeal, Chief Judge Robb writes:

S.S. applied for unemployment benefits and was denied by a claims deputy of the Department of Workforce Development (“DWD”). S.S. filed an administrative appeal, and a telephonic appeal hearing was scheduled, of which S.S. received notice. Due to S.S.’s confusion of the Eastern and Central time zones, S.S. failed to answer the administrative law judge’s call at the scheduled time, no hearing was held, and the ALJ therefore dismissed S.S.’s appeal. S.S. requested but was denied reinstatement of her appeal, and the Review Board of the DWD affirmed that denial. S.S. appeals the Review Board’s decision, presenting the following expanded and restated issues for our review: 1) whether S.S. was afforded due process and a reasonable opportunity for a fair hearing; 2) whether the Review Board erred by failing to consider all of the evidence submitted by S.S.; and 3) whether the Review Board erred by denying S.S.’s request to reinstate her appeal. Concluding S.S. was afforded due process and a reasonable opportunity for a hearing, and finding no error in the Review Board’s consideration of evidence or in its denial of S.S.’s request to reinstate her appeal, we affirm. * * *

S.S. was afforded due process and a reasonable opportunity to participate in a telephonic hearing. Further, the Review Board did not err in its consideration of evidence or in its denial of S.S.’s request to reinstate her appeal. The Review Board’s decision is therefore affirmed.

RILEY, J., concurs
BROWN, J., dissents with opinion. [which concludes] Plausible arguments about due process aside, and looking at the total picture, we have before us the situation of a stressed-out, financially strapped, unemployed woman who made the very common mistake of confusing the time for her hearing to be an hour later rather than an hour earlier than the stated time given the time zone she was in, a mistake made every day by those who must negotiate the two time zones existing among the various counties of Indiana. She was in a federal building, her cell phone off as required, in a hearing to determine her continued eligibility for food stamps. She has copiously compiled the record of what has transpired in her case. While her appeal may or may not have merit, the only relief she seeks is to have her appeal from the denial of unemployment benefits heard. I would reverse the Decision of the Review Board and reinstate S.S.’s appeal.

In Dan Cristiani Excavating Co. Inc. v. Jeremy Money and Kerru Money, a 19-page opinion, Chief Judge Robb writes:
Following a jury trial, Dan Cristiani Excavating Co., Inc. (“Cristiani”) appeals a verdict in favor of Jeremy Money (“Money”) and Kerri Money for injuries sustained by Money in a bulldozer accident. On appeal Cristiani raises four issues, which we restate as: 1) whether the trial court erred in denying Cristiani's motion to try separately the issues of liability and damages; 2) whether the trial court erred in denying Cristiani's request for the jury to view the bulldozer involved in the accident or in the alternative, to admit into evidence photographs of the bulldozer involved in the accident; 3) whether the trial court erred in allowing Money's life care planner to testify regarding future medical treatment; and 4) whether the trial court's adverse rulings constitute judicial bias.

We conclude the trial court did not abuse its discretion in denying bifurcation of the trial, or in declining to allow the jury to view actual or photographic evidence of the bulldozer involved. We conclude further that Cristiani waived the issue of whether Money's life care planner was qualified to testify as an expert, and that the weight to be given her testimony was properly conceded to the jury. Finally, Cristiani failed to establish actual personal bias by the trial judge, and accordingly, we affirm.

A.H. v. State of Indiana - "A.H.’s conviction of incest against K.C. is not supported by sufficient evidence. This conviction is therefore reversed and the case is remanded for further proceedings."

NFP civil opinions today (3):

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

Melissa A. (Scales) Crupper v. Charles D. Scales, Jr. (NFP)

Paternity of T.A.; J.M. v. A.A. (NFP)

NFP criminal opinions today (5):

Gene Hooks v. State of Indiana (NFP)

Jonathan R. Dye v. State of Indiana (NFP)

Christopher West v. State of Indiana (NFP)

Tevin Reaves v. State of Indiana (NFP)

Arthur E. Lott, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 26, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Fort Wayne Airport defends handbill policies in face of lawsuit

Rebecca S. Green has this story today in the Fort Wayne Journal Gazette. The long story begins:

A local Army combat veteran wants to hand out copies of the U.S. Constitution and other literature in protest of the federal government’s new airport security screening methods.

But when Paul Anthony Stanton told officials at Fort Wayne International Airport of his intention, he received a copy of new rules spelling out where and when he could conduct his protest – outside the terminal and only after pre-approval.

Such restrictions were unacceptable to Stanton, who, with the help of the ACLU of Indiana, filed a federal lawsuit against the Fort Wayne-Allen County Airport Authority, its board and executive director.

In his lawsuit, filed last week in U.S. District Court in Fort Wayne, Stanton alleges the airport’s new rules, enacted in mid-November, are a violation of the First Amendment of the Constitution, and he wants a federal judge to declare them invalid.

Airport officials said the rules were created as a security measure, necessary to protect the public and airport staff.

In November, after concerns about one group trying to pass out leaflets through the baggage claim doors to workers in the back, officials asked the airport board to enact rules regulating when people can solicit, pass out leaflets or conduct “expressive activities” at the airport, said Craig Williams, director of administration and finance at the airport.

“That’s a major safety and security issue for us,” Williams said. “Our fear is that if it happens unfettered throughout the terminal then people will end up getting themselves potentially hurt and put us at a security risk.”

Here is a copy of the 17-page complaint in Stanton v. Fort Wayne-Allen County Airport Authority. The complaint includes a copy of the airport rules and a diagram of the airport.

The ILB recalls the 1992 SCOTUS decision in Int'l. Society for Krishna Consciousness v. Lee (505 U.S. 672).

Posted by Marcia Oddi on Wednesday, January 26, 2011
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues two Indiana rulings today; plus an opinion that will be appreciated by tax geeks

In U.S. v. Brock (ND Ind., Simon), a 10-page opinion, Judge Williams writes:

Ty Brock was stopped at a vehicle sobriety checkpoint in Lake Station, Indiana in the early morning hours of November 8, 2009. He did not pass with flying colors. Officers that approached Brock’s vehicle smelled a strong odor of marijuana when he rolled down his window and saw Brock trying to hide a ceramic plate with a powdery substance, a razor, and a straw on it under the driver’s seat. Brock was ordered out of the car and arrested, at which point a loaded gun was discovered strapped to his ankle. A search of his car yielded heroin, marijuana, and a second firearm. Brock moved to suppress the items, arguing that the stop of his car at the checkpoint violated his Fourth Amendment rights. After the district court denied the motion, Brock pleaded guilty to possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1), and carrying a firearm in furtherance of a federal drug trafficking crime, 18 U.S.C. § 924(c). He was sentenced to sixty months’ imprisonment and three years’ supervised release.

Brock appeals the district court’s denial of his motion to suppress the items found in his car during the checkpoint stop. He argues that the sobriety checkpoint in this case was unreasonably intrusive. We disagree. Because the checkpoint was neither objectively nor subjectively intrusive in any way that would outweigh the government’s interest in operating it, the checkpoint stop did not violate Brock’s Fourth Amendment rights. We affirm.

In Gipson v. U.S. (SD Ind., McKinney), an 8-page opinion, Judge Posner writes in reversing the district court:
Maurice Gipson, an inmate of a federal prison in Indiana, brought suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80, complaining about complications of neck surgery because the prison’s medical staff had disregarded a medical directive that he be told to stop taking blood thinners at least five days before the operation. The district court granted summary judgment in favor of the government because Gipson had failed to submit a medical expert’s opinion that in disregarding the directive the prison’s medical staff had violated the applicable standard of care.
As for the tax geek option:

In Beard v. IRS, a 16-page opinion, Judge Evans begins:

This case presents the seemingly simple question of whether an overstatement of basis in ownership interests is an omission of income under the Internal Revenue Code Section 6501(e), thereby triggering a six-year, rather than the standard three-year, statute of limitations. But things are not always as they appear—the answer to the seemingly simple question requires a rather lengthy discussion of a case decided more than a half-century ago, in 1958, the year Elvis Presley was inducted into the army.

At issue here is a variant on a Son-of-BOSS (Bond and Option Sales Strategy) transaction, a type of abusive (so says the government) tax shelter that was popular a few years back. On the other side of this dispute, Kenneth and Susan Beard give the transaction a much more benign handle calling it simply “a tax advantaged transaction.” We think the government’s characterization is closer to the mark.

Posted by Marcia Oddi on Wednesday, January 26, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on: What is the role of the new House Committee on Government Reduction?

Updating this ILB entry from Jan. 18, 2011, Jon Seidel of the Gary Post Tribune reports today on the first meeting of the new committee:

A government reduction committee led by Rep. Chet Dobis of Merrillville met for the first time Tuesday and heard ideas for minor changes to state law that could add up to larger time and dollar savings for Indiana's towns, cities and counties.

Dobis, a Democrat, leads the body despite being a member of the minority in the Indiana House of Representatives. Speaker Brian Bosma, R-Indianapolis, asked Dobis to head the committee in a gesture of bipartisanship shortly after November's election. Ever since, Dobis said, he's been inundated with ideas.

"People are coming to me with suggestions on a regular basis," Dobis said.

The committee heard from Highland Clerk-Treasurer Michael Griffin, representing the Indiana Association of Cities and Towns, as well as speakers from the Association of Indiana Counties and the State Board of Accounts.

Griffin offered members a list of 87 ideas for changing local government. They included putting cities and towns on a two-year budget cycle, combining certain funds cities are required to maintain and allowing government units to give away assessed value to another interlocal government.

"We think this could help us to do some rational purchasing," Griffin said.

David Bottorff, executive director of the Association of Indiana Counties, suggested counties be allowed to do some property assessments using a recent geographic information system, or GIS, map. He also said it's becoming burdensome for counties to retain paper copies of records for 10 years.

Examiner Bruce Hartman of the State Board of Accounts, also said his office has trouble with documents. He said every county clerk and treasurer is required to file a monthly report in his office, and every government must send a list of every employee and their salaries.

Dobis said his committee will meet again next week and hear ideas from the governor's staff and the Department of Local Government Finance, and the information about employees' salaries is available at the local level. "They're not used by us for any purpose," Hartman said.

Posted by Marcia Oddi on Wednesday, January 26, 2011
Posted to Indiana Government

Ind. Gov't. - More on "Daniels takes natural gas bet that others refused"

Updating this ILB entry from Jan. 3, 2011, which links to a still-available IndyStar story from that date that began:

The proposed $2.6 billion Rockport coal gasification plant that Gov. Mitch Daniels touts as a "rock-solid" winner for Indiana was rejected two years ago by the state's natural gas utilities as unneeded.

Gas companies backed away. Bankers declined loans.

The deal collapsed -- until Daniels stepped in and put it back on track.

Now, every household in Indiana that burns natural gas is being pulled into a venture that consumer activists call risky.

If the plant to be built at Rockport can't make gas from coal cheaply enough, household bills will increase for every home in Indiana that uses the fuel.

The reason is that the bold plan the governor announced Dec. 16 makes Indiana households the safety net for the proposed plant, which would use heat, steam, pressure and oxygen to turn coal into natural gas.

Today, the Star's Ted Evanoff, who reported that story, writes under the headline "Hearing on energy plan set for Thursday: Proposal calls for state agency to buy natural gas produced at coal plant, resell it on open market." The story begins:
The controversial plan backed by Gov. Mitch Daniels to hitch the natural gas bill of every gas-burning home in the state to a high-tech coal plant will get its first public airing Thursday.

The Indiana Utility Regulatory Commission has scheduled a preliminary hearing on the measure advanced by a private investor from New York called Indiana Gasification LLC.

Its proposed $2.65 billion plant in southwestern Indiana would turn coal into natural gas for sale to a state agency that would resell the fuel on the open market and adjust consumer bills accordingly. * * *

Under a plan backed by the governor, the Indiana Finance Authority, a state agency, would buy almost all of the Rockport plant's natural gas and sell it on the open market for 30 years.

Indiana's finance agency stepped up as the sole buyer for the natural gas with Daniels' support after utilities across the state backed out in 2008 as buyers of the energy, citing various reasons.

On Thursday, the preliminary hearing is expected to set the schedule in the coming weeks for testimony by groups with a stake in the case, including the finance agency and Indiana's Utility Consumer Counselor.

Posted by Marcia Oddi on Wednesday, January 26, 2011
Posted to Indiana Government

Tuesday, January 25, 2011

Ind. Law - Gun bills on the move in the Indiana Senate [Updated]

Current law provides that a person who does not possess a valid handgun license may not carry a handgun in any vehicle or on or about the person's body unless the person: (1) is in the person's dwelling or fixed place of business or on the person's property; or (2) is carrying the handgun unloaded and in a secure wrapper from the place where the handgun was purchased to the person's dwelling or fixed place of business, between a handgun repair shop and the person's dwelling or fixed place of business, or from one dwelling or fixed place of business to another.

SB 506, which was approved in the Senate Committee on Corrections, Criminal, and Civil Matters by a vote of 9-1 today, allows a person to carry a handgun on or about the person's body without being licensed to carry a handgun if: (1) the person is in or on property, or in a vehicle, that is owned, leased, rented, or otherwise legally controlled by the person; (2) the person is lawfully present in or on private property, or in a vehicle, that is owned, leased, rented, or otherwise legally controlled by another person; (3) the person is carrying the handgun at a shooting range, while attending a firearms instructional course, or while engaged in a legal hunting activity; or (4) the handgun is unloaded and securely wrapped.

Kevin Rader of WTHR 13 reported on the vote on this evening's newscast. The video isn't posted yet, but the story quotes Sen. Greg Taylor (D-Indianapolis), the only"no" voter, as asking:

"If you allow people without a license to drive around with a gun in their car, doesn't that smack in the face of our licensing procedure? Why go get a license?"
SB 411, which may also have passed out of the same committee today [ILB update - see below] appears to be a companion to last session's "take a gun to work" law. As reported in this story about the new law on July 6, 2010:
It is considered the most controversial law to take effect in Indiana this year: Now for the first time, employers cannot stop employees from taking a gun to work as long as the employees have a permit to carry and keep it locked in their cars and out of sight.
Under the new bill passed out of Senate committee today, however, employees would no longer need the permit to carry. (Here is more on the 2010 law, in this July 2, 2010 entry headed "Ind. Law - Take a gun to work law goes into effect.")

Maureen Hayden of the CNHI Statehouse Bureau reported on SB 411 yesterday in the Anderson Herald Bulletin:

The NRA has asked its members to contact Indiana lawmakers to urge them to support new legislation that would allow employers to be sued if they require applicants to disclose information about gun ownership or require employees to reveal if they have weapons or ammunition in their cars. * * *

The author of Senate Bill 411, dubbed “the Parking Lot 2.0 bill” by the NRA, is state Sen. Johnny Nugent of Lawrenceburg. Nugent said he expects a repeat of last year’s arguments that pit the NRA against business interests that advocated that employers had personal property rights that allowed them to forbid firearms on company property.

“I’ve been a strong supporter of individual property rights,” Nugent said. “I understand how employers might feel the way they do. But there are things that trump those property rights, and one of them is the defense of my life.”

In the 2010 session, NRA lobbyists argued that citizens had a constitutional right to self-protection that doesn’t stop when they drive onto their employer’s property.

Indiana lawmakers agreed and passed a bill that allowed employees to keep their legally permitted firearms in their locked vehicles while parked on company property. The law allowed some employers, including schools and day care operators, to be exempt.

But the law failed to address what employers could do to find out if their workers had guns in their cars, or what action they could take to verify those guns were legally permitted.

In response, some employers have created designated parking areas for employees who carry guns in their cars and have begun asking employees to provide more information about those guns, including serial numbers. * * *

The NRA, in an advisory sent to its members recently, contends “numerous Indiana employers, both large and small, have falsely declared themselves exempt” from the 2010 law, which went into effect last July.

The NRA also contends some Indiana employers have created “onerous requirements” of gun-owning employees, including requiring employees to provide detailed descriptions of weapons in their vehicles.

[Updated 1/26/11] Kevin Allen of the South Bend Tribune reports today that SB 411, discussed above, also was passed out of committee by a 9-1 vote.

Posted by Marcia Oddi on Tuesday, January 25, 2011
Posted to Indiana Law

Courts - "N.Y. Judges Present Range of Moonlighting Requests for Extra Pay"

Joel Stashenko of the NY Law Journal has a lengthy story today with examples of paid outside work requests that have been approved for NY judges. Some quotes:

A judge can race motorcycles, coach basketball and captain a sightseeing boat without creating a conflict with his primary judicial role or compromising its dignity.

Those are a few of the determinations New York state court administrators have made since last fall when they relaxed prohibitions against judicial moonlighting in light of the fact that judges have not received a raise since 1999.

Relatively few of the state's 1,300 judges have seized the opportunity, however. Only 14 applications for approval to engage in outside paid work have been received, with 10 being accepted.

What about the four that were rejected? Here are two:
A proposal from Pauline Mullings, an acting Supreme Court justice in a criminal term in Queens, that she be allowed to get a license as a private security guard and work nights, weekends and holidays when she is not on the bench was rejected. McConnell said security guards typically have interaction with local law enforcement personnel, which could create the appearance of a conflict for a judge on a criminal court bench.

Brooklyn Acting Supreme Court Justice Alan Marrus' request to charge more than $100 to solemnize marriages if extra work is involved to create "unique and special" ceremonies was denied. McConnell said judges could conceivably be paid for providing ancillary services at a wedding away from court premises, such as catering or photography, but General Municipal Law §805-b expressly limits the fee for performing a ceremony to $100.

Marrus said judges often spend hours beyond the actual wedding ceremony trying to get to know the couples so they can personalize the service.

"It's unfortunate that judges cannot get compensated for the additional time that we put into performing marriage ceremonies beyond the ceremony itself," Marrus said in an interview. "But since the administration feels that that would violate the current statute, then I feel obligated to follow that decision ... . You have to abide by the rules ... . There is no one to take an appeal to."

Posted by Marcia Oddi on Tuesday, January 25, 2011
Posted to Courts in general

Ind. Law - What are "English only documents" and what is excepted?

Niki Kelly of the Fort Wayne Journal Gazette reports today on HB 1255, in a story headed "English-only documents bill clears House." Some quotes:

Some official state documents would be limited to English-only versions under a bill passed 63-26 Monday by the Indiana House.

Rep. Suzanne Crouch, R-Evansville, said state documents should not be issued in languages other than English, which is the official state language.

That is why she brought House Bill 1255.

“I’m a very black-and-white person, and gray issues are hard for me,” she said. “This one seems pretty black-and-white.”

There are exemptions in the bill, including if the federal government requires that documents be offered in multiple languages.

Crouch could not give an example of a document that would be covered by the bill, though some lawmakers mentioned Bureau of Motor Vehicles forms and tax forms.

Some might say the bill is full of gray issues. What is a "document or communication"? Is it only an item printed on paper? What if the same item is posted on the State's website. Is it still a "document?"

What about the exceptions listed in Sec. 4? Are they clear, or might one have to go to court to have them interpreted?

    Sec. 4. A language other than English may be used when required:
        (1) by the Constitution of the United States, federal law, or the Constitution of the State of Indiana;
        (2) by law enforcement or public health and safety needs;
        (3) to protect the rights of parties and witnesses in a civil or criminal action in a court or in an administrative proceeding;
        (4) to promote and encourage tourism and economic development;
        (5) to teach:
            (A) another language to students proficient in English; or
            (B) English to students of limited English proficiency; and
        (6) by libraries:
            (A) to collect and promote foreign language materials; and
            (B) to provide foreign language services and activities.

Here is a web page on the Indiana Courts, that provides text and video in Spanish. Would it be covered by the new law? Here are excerpts from the Indiana Code (unfortunately outdated), in Spanish.

Are these similar to "Bureau of Motor Vehicles forms and tax forms," which apparently are intended to be covered by the bill?

Posted by Marcia Oddi on Tuesday, January 25, 2011
Posted to Indiana Law

Courts - "UK settles religious-discrimination suit for $125,000"

Cheryl Truman reported Jan. 19, 2011 in the Lexington Herald Leader:

The University of Kentucky will pay $125,000 to an astronomy professor who sued the school for religious discrimination. * * *

Gaskell claimed that he was passed over for a job as director of UK's MacAdam Student Observatory three years ago because of his religion and statements that were perceived to be critical of evolution. He was being represented in the case by attorneys from the American Center for Law and Justice.

Gaskell was a top candidate for the job, according to court filings, but some UK professors called him "something close to a creationist" and "potentially evangelical" in department e-mail messages.

The story includes a link to the 6-page settlement agreement.

All of the documents in the case of C. Martin Gaskell v. University of Kentucky are available here, from the National Center for Science Education website.

The case has been the subject of many blog entries, including this one by Richard Dawkins on BoingBoing.

Posted by Marcia Oddi on Tuesday, January 25, 2011
Posted to Courts in general

Ind. Courts - "Voyeurism law passes Indiana Senate"

Remember the stories last summer about the "shoe camera man"? Here is a long list of ILB entries. As this entry on June 27, 2010 explained:

But law experts say although secretly videotaping up people's skirts may seem very wrong to most, it's not a crime according to current state law. * * *

"Those charges would have to be dropped because quite simply a court would have to dismiss them because there's no basis for them," said Henry Karlson, a retired IU law professor.

According to Indiana statute, voyeurism is defined as peeping in a dwelling or dressing room. Videotaping up someone's skirt does not apply. And in court today, the prosecution conceded it doesn't have a voyeurism case and agreed to drop those charges.

Well, in case the issue should ever come up again, Indiana will have a law for it, if SB 19 passes.

WANE out of Fort Wayne is reporting:

INDIANAPOLIS, Ind. (WANE) - On Monday, Senate lawmakers voted 42-8 to strengthen Indiana’s voyeurism law by prohibiting criminals from taking inappropriate photos or video of unsuspecting Hoosiers in public places, according to State Sen. Tom Wyss (R-Fort Wayne). * * *

Wyss’ proposal would make it illegal to take indecent images of an unsuspecting person’s private area in public. This legislation – commonly referred to as the ‘upskirt’ ban – now moves to the House for further consideration.

“Advances in technology have led to smaller, more versatile cameras,” Wyss said. “It’s unfortunate that some people choose to use them in devious ways. Our state law needs to keep pace with technology and help protect innocent individuals from such acts in the future.”

Posted by Marcia Oddi on Tuesday, January 25, 2011
Posted to Indiana Law

Ind. Gov't. - Yet more on: Changes to death certificate system in Indiana

Updating a number of recent ILB entries from around the state, Virginia Ransbottom has a second story today in the South Bend Tribune. Some quotes:

After reading stories about loved one's cremations being delayed and hearing from frustrated doctors wrestling with Indiana's new system for recording death certificates online, the Indiana State Medical Association cited several problems that needed to be ironed out.

However, the Indiana State Department of Health says it's pleased at how well the system is working. * * *

While the turnaround time to obtain a personal identification number for access to the system was supposed to take one to two days, ISMA physicians advised [ISMA managing editor Kathleen Hopper] the process took two weeks to a month before receiving their PINs.

Dr. David Welsh, an ISMA past president, said not only did it take him a month to receive his PIN, he asked a question using the help line but no one got back him with an answer.

The state's health department says those must have been isolated incidents that could have included incorrectly submitted or identified e-mail addresses.

"We've had no systemwide problems," said Jennifer Dunlap, the state health department's director of public affairs. "We've been tracking turnaround time and they're turned within two to three business days."

Dunlap said the registry has seen no drop in death records being processed and as far as delays in receiving death certificates, that's why the new system was developed, she said.

"It's not uncommon for a death certificate to take weeks or months to be processed," said Dunlap, mentioning there were previously no time guidelines. "The new system takes three days to a week in turnaround time."

Other frustrations reported by ISMA physicians were that one-time e-mail notifications by the registry may get overlooked in a busy office and that the provision calling for criminal charges and a $1,000 fine for failing to have the death certificates processed within five days is too harsh.

Dunlap said doctor and coroner offices can have up to three back-up e-mail addresses for notification when a certificate needs to be processed and suggested office personnel take the online training tutorials offered at https://myweb.in.gov/ISDH/IDRSThin.

A House bill is already in the works to change the mandated criminal penalty to a professional licensing issue, Dunlap said.

Dunlap also suggested not waiting until a death occurs before registering in the system.

Posted by Marcia Oddi on Tuesday, January 25, 2011
Posted to Indiana Government

Ind. Courts - "I know it's how I got the job, but merit selection would be better"

Bill Dolan reports today in the NWI Times:

CROWN POINT | Lake Superior Court Judge Julie Cantrell said she would like to take politics out of her courtroom.

She expects to testify this week before the Indiana General Assembly in support of a bill to remove her and three other Lake Superior Court, County Division, judges from partisan politics.

"I know it's how I got the job, but merit selection would be better," Cantrell said Monday.

Cantrell, first elected to the bench two decades ago, and judges Nicholas Schiralli, Sheila Moss and Jesse Villalpando currently have to run under party labels to be re-elected. All four are Democrats.

The proposed legislation, Senate Bill 499, would bring the four into the merit selection system, currently used by a dozen judges in Lake Criminal Court, Lake Juvenile Court and Lake Superior Court, Civil Division.

Under the merit selection system, judges face voters every six years on a referendum question that only asks whether the judge should be retained for a new term in office or rejected. The judges' political affiliation isn't announced, and they don't face challengers in either the Republican or Democratic primary election in the spring or the general election in the fall. They don't campaign for retention unless there is a public campaign asking voters to reject the judges.

Cantrell said court rules now make it impossible for judges in the politically partisan side of Superior Court to share employees with the 12 nonpartisan judges, which results in costly inefficiencies.

Posted by Marcia Oddi on Tuesday, January 25, 2011
Posted to Indiana Courts

Ind. Courts - More on: Five apply to be Wells Circuit Court judge

Updating this ILB entry from yesterday, Rebecca S. Green of the Fort Wayne Journal Gazette reports today on the judge who is retiring. From the story:

Longtime Wells County Circuit Judge David Hanselman will be stepping down from the bench in a few weeks.

A Steuben County native, Hanselman was first appointed to the bench in 1981, replacing Wells Circuit Judge Joseph Eichorn after his death. Hanselman has been practicing law in Wells County since 1974.

His decision to retire, first announced in December, leaves dozens of open cases, including the legal battle between the city of Fort Wayne and Aqua Indiana over the value of the utility’s northwest Fort Wayne operations, which the city tried to take over for $16.9 million. Aqua Indiana officials said the amount was too low and based on outdated appraisal data.

After the case was filed in 2007, Hanselman was appointed as a special judge. But the case has been languishing on Hanselman’s desk, with no action taken in over a year as of last October.

According to court staff, Hanselman intends to move to Florida and is filing paperwork to remove himself from his special judge cases. He has two years left on his term.

Indiana Supreme Court spokeswoman Kathryn Dolan said if Hanselman does not want to continue as a senior judge after he retires a new judge would be appointed to handle his special judge cases.

Posted by Marcia Oddi on Tuesday, January 25, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 3 NFP)

For publication opinions today (5):

In Adoption of L.E.; D.H. v. J.H. and J.E., an 8-page opinion, Judge May concludes:

The court erred when it failed to consider Stepfather’s objection and grant his to vacate the adoption because Stepfather was L.C.E.’s legal custodian pursuant to the Johnson County order. We therefore reverse the grant of Grandfather’s petition for adoption.

Moreover, because the Johnson County court had entered a custody order involving L.C.E., it currently holds jurisdiction over any issues related to his custody. Thus the Lawrence circuit court has no jurisdiction and Grandfather’s petition must be dismissed. Reversed.

In Jeffery Curry, et al. v. Andrew Whitaker, et al., a 12-page opinion, Judge Vaidik writes:
Jeffery T. Curry and Davina L. Curry appeal the trial court’s grant of summary judgment in favor of Andrew Whitaker and Grace Santa-Cruz Chavez on the Currys’ complaint for invasion of privacy by intrusion, invasion of privacy by false light, and intentional infliction of emotional distress. Finding no genuine issue of material fact and that Andrew and Grace are entitled to judgment as a matter of law, we affirm the trial court.
In Darlene Baca v. RPM, Inc., c/o Patty Brown, a 6-page opinion, Judge Bailey writes:
Pursuant to a policy or practice of Tippecanoe Superior Court 4, Darlene Baca, a disabled and indigent small claims litigant, was ordered to perform four hours of community service in order to have her claim set for a hearing. The trial court certified its order for interlocutory appeal and this Court accepted jurisdiction. Baca presents the sole issue of whether the informal local rule requiring community service is enforceable. We hold that it is not a duly promulgated local rule and is unenforceable. The interlocutory order for community service is reversed. * * *

Acting pro se, Baca attempted to file a claim for the return of her security deposit from a former landlord. Unemployed, disabled, and indigent, Baca lacked the $76 filing fee but was informed by court personnel that she could perform sixteen hours of community service in order to have her complaint filed. Baca contacted Indiana Legal Services. * * *

Subsection (A)[of Indiana Rule of Trial Procedure 81] includes a specific prohibition of standing orders: "Courts shall not use standing orders (that is, generic orders not entered in the individual case) to regulate local court or administrative district practice"‖ We agree with Baca that the practice of Tippecanoe Superior Court is essentially a standing order, in circumvention of the requirements of Trial Rule 81(B) for the proper promulgation of local court rules. It is, accordingly, unenforceable. Reversed.

In Phyllis Hardy, et al. v. Mary Jo Hardy, an 18-page opinion, Judge Brown writes:
Carlos and Phyllis Hardy were married on December 28, 1967. Carlos worked at NSWC Crane and had a life insurance policy with Federal Employees' Group Life Insurance (“FEGLI”) through his employer. [He subsequently divorced and remarried, then died Aug. 9, 2008.] * * *

The issue is whether the trial court erred in granting Mary Jo's motion for summary judgment and in denying the Plaintiffs' motion for summary judgment. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. * * *

The Plaintiffs argue in general that the court erred in granting Mary Jo's motion for summary judgment because FEGLIA does not preempt their claims. * * *

While the Plaintiffs cite opinions from some of our sister states, we find the approach taken by the Seventh Circuit and numerous federal and state courts to be the more compelling approach. Accordingly, we conclude that FEGLIA preempts the Plaintiffs' state law claims. * * *

Consequently, we conclude that the trial court did not err in granting Mary Jo's motion for summary judgment and denying the Plaintiffs' motion for summary judgment.

For the foregoing reasons, we affirm the trial court's grant of Mary Jo's motion for summary judgment and denial of the Plaintiffs' motion for summary judgment.

In Frank J. Akey, Personal Rep. of the Estate of Wayne Akey v. Parkview Hospital, et al. , an 11-page opinion, Sr. Judge Sullivan concludes:
In this case, having excluded Mirro’s expert testimony, the trial court concluded that Akey had failed to demonstrate a genuine issue of material fact on the question of causation. We have concluded that Mirro’s evidence should have been considered. Mirro’s affidavit and deposition testimony give rise to a genuine issue of material fact as to whether the erroneous administration of thrombolytic drugs caused Wayne Akey’s cerebral hemorrhage and subsequent death. Therefore, the trial court’s grant of summary judgment must be reversed
NFP civil opinions today (1):

Term. of Parent-Child Rel. of M.T.; R.T. v. IDCS (NFP)

NFP criminal opinions today (2):

Martel K. Settles v. State of Indiana (NFP)

Shelisa Wimbush v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 25, 2011
Posted to Ind. App.Ct. Decisions

Monday, January 24, 2011

Ind. Courts - Updating: Do ALJs lack the authority to grant pro hac vice appearances for out-of-state attorneys appearing before their agencies? [Updated]

Updating an entry posted by the ILB earlier this afternoon, the ILB has received two notes from readers:

Posted by Marcia Oddi on Monday, January 24, 2011
Posted to Indiana Courts

Ind. Courts - Five apply to be Wells Circuit Court judge

Dave Schultz reports in the Bluffton News-Banner:

Gov. Mitch Daniels’ legal staff will interview five candidates this week for the upcoming vacancy on the Wells Circuit Court bench.

Jane Jankowski, Daniels’ press secretary, identified the five candidates as Andrew Antrim, Roy Johnson, Anthony Crowell, Kent Kiracofe, and Andrew Carnall.

Posted by Marcia Oddi on Monday, January 24, 2011
Posted to Indiana Courts

Courts - Illinois COA boots Rahm Emanuel from Chicago ballot

Thanks to the Election Law Blog, here is the 42-page, 2-1 opinion.

Here is the story from Politico.

More, with links, in the WSJ Law Blog.

Posted by Marcia Oddi on Monday, January 24, 2011
Posted to Courts in general

Ind. Courts - Still more on: Do ALJs lack the authority to grant pro hac vice appearances for out-of-state attorneys appearing before their agencies?

Updating this ILB entry from Thursday, Jan. 20th, 2011, that quoted a letter stating that in Indiana "admission to practice law in Indiana is exclusively the province of the Supreme Court," and that "ALJs do not have the authority to grant such requests of foreign attorneys for temporary admission." Instead, according to the Oct. 18, 2010 letter from the Clerk of the Courts:

[W]hen a foreign attorney submits a petition for temporary admission in an ALJ, the ALJ, citing the rule mentioned above, should decline to rule an the petition and, instead, direct the attorney to file the petition with a trial court in the county in which the ALJ is presiding over the matter.
The ILB has now obtained a copy of a second letter on the subject, again written by the Clerk of the Courts, and dated Jan. 21, 2011. The letter reads in part:
As a follow-up to my previous letter, I write to let you know that the Supreme Court is currently analyzing Indiana Admission and Discipline Rule 3, section 2 as it applies to foreign lawyers wishing to act in a representative capacity in administrative hearings. As part of this analysis, the Court will be submitting the issue to the Indiana Supreme Court Rules Committee for review. In the meantime, the Court wishes to make one slight adjustment to the procedure previously outlined. Specifically, instead of directing foreign attorneys to file their petitions in a local trial court, the Court would like those petitions filed with the Indiana Supreme Court, until such time as the Court can consider the matter more fully through the Rules Committee process discussed above. If you would, please make your ALJs aware of this slight change. [Emphasis by ILB]

Posted by Marcia Oddi on Monday, January 24, 2011
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issued one Indiana ruling today

In Applications of Heraeus Kulzer v. Biomet (ND Ind., Miller, a 14-page opinion, Judge Posner writes:

This is an appeal from orders by the district court denying applications to compel discovery for use in a lawsuit pending in a foreign court. * * *

The district court’s decision must be reversed and the matter returned to that court for consideration of Heraeus’s discovery demands under Rule 26 and any other pertinent rules governing discovery in federal district courts. The district court need not bother itself with section 1782 any longer but is to consider Heraeus’s requests as it would any other discovery request in a complex case, and to do so in accordance with the discussion in this opinion. REVERSED AND REMANDED.

Posted by Marcia Oddi on Monday, January 24, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Continuing on with: "Law would let cities declare bankruptcy

As I wrote here yesterday, "The ILB has had a number of entries on this year's SB 105, a bill that would allow Indiana municipalities to file for bankruptcy under defined conditions."

Today Jon Seidel of the Gary Post-Tribune has a very long entry headed "'Municipal bankruptcy bill' not about Gary, author says." The story begins:

People in Gary are pretty worried about Senate Bill 105. That's the bill by Sen. Ed Charbonneau labeled a "municipal bankruptcy bill" early in this year's legislative session. Charbonneau says that label is unfortunate, because the whole point of his bill is to prevent local governments from going bankrupt.

But it does create a path to municipal bankruptcy court for Hoosier governments that doesn't exist now.

The general sentiment at the Statehouse is that the bill was filed this year because Gary's money problems are coming to a head. Charbonneau says that's not the case. But Gary is in the midst of its third petition to the Indiana Distressed Unit Appeals Board, a body that helps by raising local tax caps.

The DUAB can't do that next year because the caps were voted into the state constitution, and it's not clear if the region's largest city can survive on its own.

So Charbonneau's bill would reform the DUAB. Financially troubled governments would petition the board if they can't pay their bills. If the new DUAB decides the government is distressed under a set of pre-established guidelines, the DUAB would appoint an emergency manager to help straighten out its financial problems.

That resolution could include a Chapter 9 bankruptcy filing, but Charbonneau says the point is to try and avoid that fate.

Politicians in Gary say the bill amounts to a state takeover of their city.

The lengthy story concludes:
A second hearing has been set for 8 a.m. (CST) Wednesday at the Statehouse. Charbonneau said changes will be made to the bill, but he wouldn't give any sneak previews.

"I'm very optimistic that we'll have something that will alleviate most people's concerns," Charbonneau said.

ILB: The bill will be heard, for amendment only, by the Senate Judiciary Committee, on Wednesday, Jan. 26th. The meeting starts at 9:00 am EST in Room 130. A number of other bills of interest are also scheduled for that meeting. You can watch video from Room 130 here, but the videos are not archived for watching later.

Posted by Marcia Oddi on Monday, January 24, 2011
Posted to Indiana Government

Ind. Courts - Marilou Wertzler, 89, Reporter of the Courts, dies

From the obituary in the Muncie Star-Press:

Marilou Wertzler, 1922-2011, former Reporter for Supreme and Appellate Courts, State of Indiana, passed away January 14, 2011, in Palo Alto, CA. Mrs. Wertzler, who was born in Battle Creek, MI., was first elected to office in 1968 and subsequently re-elected for three additional terms serving sixteen years in the administrations of former Governors Edgar Whitcomb and Dr. Otis Bowen before retiring to California to be near her family.
Mitch Harper writes in a long entry in his blog, Fort Wayne Observed:
Indiana voters used to vote for the statewide office of Indiana Supreme and Appellate Court Reporter. The legislature abolished the elected office in the 1980's.

The last person to hold the post was Marilou Wertzler. The well-respected Mrs. Wertzler has passed away at age 89 in Palo Alto, California; her obituary was published today. * * *

The job of Court Reporter was to compile the decisions of the Indiana Supreme and Appellate Courts and then cause the official Indiana Reports to be published. This was an important function in the early decades of the State of Indiana when it was important that a continuous bound volume of state court opinions be made available for research.

The Indiana Supreme Court for some years now has contracted with a private company, West Publishing, to edit and publish the official opinions of the Supreme and Appellate Court. The versions of its opinions that the Indiana Court posts online for the public are not official: "Opinions posted here are for informational purposes only. Official copies of opinions are available from West (Thomson/Reuters)."

Posted by Marcia Oddi on Monday, January 24, 2011
Posted to Indiana Courts

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?

From Sunday, January 23, 2011:

From Saturday, January 22, 2011:

Posted by Marcia Oddi on Monday, January 24, 2011
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/24/11):

Next week's oral arguments before the Supreme Court (week of 1/31/11):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 1/24/11):

Next week's oral arguments before the Court of Appeals (week of 1/31/11):

Next Monday, January 31st

Next Tuesday, February 1st

Next Wednesday, February 2nd

Next Friday, February 4th

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, January 24, 2011
Posted to Upcoming Oral Arguments

Sunday, January 23, 2011

Law - Arkansas, the state that went bankrupt; and what about Indiana?

Monica Davey of the NY Times has a long story today headed "The State that Went Bust." Some quotes:

Some policymakers have begun quietly discussing whether states should be allowed to seek bankruptcy protection, a legal status granted to qualifying taxation districts, towns, cities and counties but not to entire states.

Yet plenty of experts on municipal bonds and government finance — who view as alarmist the notion that a state may default on its obligations — note that it has been decades since any state actually defaulted on its bonds, or, in their view, even came close.

As it happens, the most recent such collapse occurred during the Great Depression, when Arkansas found itself, in the words of one state historian, “plain, flat broke.” There are familiar threads then and now, not least of all the overlay of a national financial slump.

But in many ways, the situation in Arkansas was a unique set of decisions and woes, piled one on top of the next, and a case study, some contend, in why this will not happen to states today. As that thinking goes, times now for states are undeniably grim, but not as grim as they once were in Arkansas. But should a state find itself near default, there is also a lesson in Arkansas, where the fallout lingered for decades.

In the 1920s, Arkansas made a push to build roads for the nation’s fast-expanding automobile industry, hoping to pull the state into the modern age.

The State of Indiana went bankrupt in the 1840s. Here are some quotes from The Centennial History of the Indiana General Assembly, beginning on p. 31:
When Governor Noah Noble called for a general system of internal improvements at the opening of the 1834-1835 session, he touched off what became an improvements mania. * * * [I]n January, 1836, the Mammoth Internal Improvements Bill became law. Mammoth it was, appropriating some $13 million to crisscross the state with a maze of canals, highways, improved rivers and streams, and railroads. * * *

[The Speaker of the House], Samuel Judah, delivered the System's epitaph in 1841: "Here is the end of our golden dreams. Here is consummation of all those visionary schemes ... developed in the Wabash and Erie Canal, expanded in the System of 1836, and ... terminated in bankruptcy, dishonor and disgrace."

A story by Mary Williams Walsh in the Jan. 20, 2011 NY Times is headed "A Path Is Sought for States to Escape Their Debt Burdens." includes:
Policymakers are working behind the scenes to come up with a way to let states declare bankruptcy and get out from under crushing debts, including the pensions they have promised to retired public workers.

Unlike cities, the states are barred from seeking protection in federal bankruptcy court. Any effort to change that status would have to clear high constitutional hurdles because the states are considered sovereign.

But proponents say some states are so burdened that the only feasible way out may be bankruptcy, giving Illinois, for example, the opportunity to do what General Motors did with the federal government’s aid.

Beyond their short-term budget gaps, some states have deep structural problems, like insolvent pension funds, that are diverting money from essential public services like education and health care. Some members of Congress fear that it is just a matter of time before a state seeks a bailout, say bankruptcy lawyers who have been consulted by Congressional aides.

Bankruptcy could permit a state to alter its contractual promises to retirees, which are often protected by state constitutions, and it could provide an alternative to a no-strings bailout. Along with retirees, however, investors in a state’s bonds could suffer, possibly ending up at the back of the line as unsecured creditors.

Meanwhile, the ILB has had a number of entries on this year's SB 105, a bill that would allow Indiana municipalities to file for bankruptcy under defined conditions.

In a related story today, Jonathan Weber of the NY Times reports that municipal bankruptcy may prove to be a difficult option. His story begins:

Vallejo, which delivered a wake-up call to municipalities around the country when it filed for bankruptcy protection in 2008, outlined in court papers last week how it plans to get back on its feet, financially speaking. For residents, the plan makes for grim reading. And if you’re a public official or taxpayer who’s hoping that bankruptcy might be a way to solve your city’s financial problems, it will surely prompt you to think twice.

People think of bankruptcy as a way to wipe the slate clean of old obligations, but that’s only half true. Yes, it’s sometimes possible for businesses, individuals and governments to eliminate some — even most — debts through bankruptcy. But as Vallejo’s case underscores, the real point of bankruptcy isn’t to let a debtor walk away but rather to force a negotiation between debtors and creditors.

Those negotiations, and the litigation that often goes with them, are now mostly concluded in the Vallejo case, and the city hopes that the formal restructuring plan it just submitted will let it emerge from bankruptcy by summer.

Municipal bankruptcy — and, as The New York Times reported on Friday, a Republican-led effort in Washington to allow states to file some kind of bankruptcy — is increasingly on politicians’ radar as a way to break what are perceived as sweetheart contracts with public employee unions and cancel sometimes-lavish pension deals.

But Chapter 9 of the bankruptcy code, which covers municipal bankruptcy, is rarely used, and it’s not entirely clear what it does and doesn’t allow. (Many states don’t even allow municipalities to file.)

Posted by Marcia Oddi on Sunday, January 23, 2011
Posted to General Law Related

Saturday, January 22, 2011

Ind. Courts - Indiana Judicial Center reports on matters of interest to the judiciary

The Indiana Judicial Center has completed summaries of bills of interest to the judiciary heard in committee last week, which was the second week of committee hearings in the 2011 session.

Among the summaries of bills passed out of committee was SB 19, regarding public voyeurism, that amends IC 35-45-4-5 to provide that a person commits the Class A misdemeanor offense of public voyeurism by peeping at the private area of another individual without that individual’s consent, with intent to peep at that person’s private area and recording an image by means of a camera. Also, SB 208, amending the public intoxication offense in IC 7.1-5-1-3 to provide that a person is not in a public place or place of public resort and hence does not commit the offense if the person is a passenger in a motor vehicle that is traveling on a highway (including a motor vehicle that was traveling on a highway until stopped for a traffic violation).

Posted by Marcia Oddi on Saturday, January 22, 2011
Posted to Indiana Courts

Ind. Courts - Legislation proposes independent toxicology agency

Updating a long list of earlier toxicology entries, Mark Alesia and Tim Evans report today in the Indianapolis Star in a story headed Some quotes:

Indiana University will not stand in the way of proposed legislation that would remove the troubled State Department of Toxicology from IU's control, a school spokesman said Friday.

The bill, submitted by Sen. Thomas Wyss, R-Fort Wayne, would put a director appointed by the governor in charge of the new, independent agency July 1. * * *

The Toxicology Department, run by IU for more than 50 years, is in the early stages of an audit of every blood test result from 2007 to 2009 -- more than 10,000 cases. The audit began after questions were raised about accuracy and proper procedure.

Former Marion County Prosecutor Scott Newman, hired by IU as a consultant to fix the agency, said a tiny sample of audited cases makes him concerned about what lies ahead. * * *

Wyss' bill will come up for a second reading before the Senate Committee on Appointments and Claims at 9:30 a.m. Feb. 3. The committee chairman, Sen. Joe Zakas, R-Granger, has signed on as a co-sponsor of the bill.

Wyss said he expects the bill to win approval, a change he said will be good for all Hoosiers.

ILB: The story is incorrect in that the bill, which is SB 431, may be heard in committee on Feb. 3, but it will not be eligible for Second Reading until it is passed out of committee, placed on the Senate calendar, and voted on for the first time by the entire Senate -- that is Second Reading.

BTW, only two bills have been assigned to the Senate Appointments and Claims Committee.

Posted by Marcia Oddi on Saturday, January 22, 2011
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending January 21, 2011

Here is the Clerk's transfer list for the week ending January 21, 2011. It is one page (and 16 cases) long.

No transfers were granted for the week ending Jan. 21, 2011.
__________

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 January 14, 2011 list.

Nearly 7 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 Saturday, January 22, 2011
Posted to Indiana Transfer Lists

Ind. Law - John Mellencamp divorce petition

"Documents detail Mellencamp divorce" is the heading of this Jan. 21, 2011 WISH TV story by Jacqueline Policastro. The story states:

24-Hour News 8 obtained the official divorce papers from a court in Brown County, Ind. The court papers shed light on the recent divorce request.
However, the story does not include a link to the actual 2-page divorce petition.

The ILB has located a copy of the divorce petition, filed Jan. 14, 2011 in Brown County Circuit Court. Access it here, via RadarOnline. Points of interest:

Mr. Mellendamp's attorney of record on the petition is Gloria Mitchell.

From the WISH TV story: "In Brown County, judge Judith Stewart or Magistrate Douglas VanWinkle will preside over the case.."

Posted by Marcia Oddi on Saturday, January 22, 2011
Posted to Indiana Law

Friday, January 21, 2011

Law - The face of the future?

After reading this ABA Journal entry headed "Crowdsourced Legal Answers Website Gets $600K from Investors, Including Google Ventures," and then reviewing the linked articles, it looks like this could well be where the practice of law is moving ...

Posted by Marcia Oddi on Friday, January 21, 2011
Posted to General Law Related

Law - Localize your Google Scholar search for state and federal cases

From the Law Librarian Blog:

Hat tip to WisBlawg for calling attention to enhanced filtering for searching court opinions using Google SLOJ. Using the advance search option, you can now limit your search to specific courts and jurisdications and combinations of them.
This is what I use. It works fine with West cites as well as search terms.

Posted by Marcia Oddi on Friday, January 21, 2011
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 8 today (and 8 NFP)

For publication opinions today (8):

In Jodi McGookin, et al. v. Guidant Corporation, et al. , a 14-page opinion, Judge Baker writes:

After their newborn daughter was diagnosed with a heart defect, was given a Guidant pacemaker, and tragically passed away at the age of fourteen months, the appellants filed a state law complaint against Guidant. Among other things, they argue that Guidant should have put specific warnings on the pacemaker labeling related to its implantation into pediatric patients. Because the label had been preapproved by the Food and Drug Administration, however, and Guidant was not required to include the additional warnings, the trial court held that any state law-based failure-to-warn claims were preempted by federal law. Finding that the trial court properly found the claims preempted, we affirm.

Appellants-plaintiffs Jodi McGookin, as mother of the deceased, Samantha Arlene McGookin, Vicky McGookin, Jim McGookin, and Julian E. Smith (collectively, the Appellants) appeal the trial court's order denying their motion to correct error. The Appellants contend that the trial court erred by granting, in part, the motion for summary judgment filed by appellee-defendant Guidant Corporation (Guidant). Among other things, the Appellants argue that the trial court erred by finding a number of their claims regarding a Guidant pacemaker to be preempted by federal law. Finding no error, we affirm.

In Robert Hollis, et al. v. Defender Security Company , a 9-page opinion, Judge Barnes concludes:
We conclude that an employee's status at the time he or she files the claim is the relevant inquiry in determining whether to proceed under the Wage Payment Statute or the Wage Claims Statute. Robert was involuntarily separated from Defender when he filed his claims and, as such, his claims fell under the Wage Claims Statute.5 Instead of submitting his claims to the DOL, as required by Wage Claims Statute, Robert improperly filed a complaint based on the Wage Payment Statute. Because Robert did not allege any Wage Claims Statute violations and submit his claims to the DOL, the trial court properly dismissed Robert's claims.
In Darren Matlock v. State of Indiana , an 11-page opinion, Judge Barnes writes:
Matlock asserts that the trial court was required to dismiss the charging information where he was detained either by the Sheriff or in Richmond State Hospital for a period in excess of the maximum sentence that could have been imposed following conviction. * * *

In other words, where the possibility exists that a defendant accused of OWI may at some point in the future regain competency and be released back into society, which release also may include the defendant driving, the State may pursue an OWI conviction even if the defendant’s incompetency caused he or she to be detained for a period in excess of the maximum possible sentence for OWI. Here, Matlock’s incompetency never was alleged to be, and in fact was not, permanent. As such, the State was not precluded from pursuing an OWI conviction against Matlock. The trial court did not abuse its discretion in denying Matlock’s motion to dismiss.

In Benjamin H. Steinberg v. State of Indiana , a 32-page opinion, Judge Crone writes:
On appeal, Steinberg raises the following issues: (1) whether the trial court violated the Federal and Indiana Wiretap Acts by admitting recordings of phone calls that Steinberg made to his parents while in jail; (2) if not, whether the trial court erred in not further redacting those recordings; (3) whether the trial court erred in admitting a 2003 email in which Steinberg asked whether there were any “extenuating circumstances relating to murder that negate personal liability”; (4) whether the prosecutor committed misconduct during closing argument when he stated that the lesser-included offense of involuntary manslaughter did not apply in this case; (5) whether the trial court committed fundamental error in admitting evidence of Steinberg's pretrial references to legal counsel; (6) whether the trial court erred in not finding Steinberg's mental health to be a mitigating factor at sentencing; and (7) whether Steinberg's sentence is inappropriate in light of the nature of the offense and his character. Finding no reversible error and that Steinberg has failed to establish that his sentence is inappropriate, we affirm his conviction and sentence.
John P. Osburn v. State of Indiana - "We conclude that the State presented sufficient evidence to support Osburn's convictions but that his double jeopardy rights were violated because there is a reasonable possibility that the jury used the same facts to establish the essential elements of both theft and obstruction of justice. Therefore, we affirm Osburn's theft and insurance fraud convictions and vacate his obstruction of justice conviction and sentence on double jeopardy grounds."

Zachary K. Gootee v. State of Indiana "[W]e conclude that the trial court did not abuse its discretion upon resentencing by imposing the same aggregate sentence and by imposing consecutive sentences."

Brian Bronaugh v. State of Indiana - "Bronaugh's trial date of February 22, 2010, was scheduled on December 9, 2009, giving Bronaugh over two months to arrange for civilian clothing. Additionally, as stated above, the trial court told Bronaugh to have civilian clothing for his jury trial the Friday before his trial was set to begin. Accordingly, Bronaugh had ample time to arrange for civilian clothing and was clearly on notice that he needed to do so. And Bronaugh's failure to make arrangements demonstrates that he was not compelled to appear in jail clothing. See Shackelford v. State, 498 N.E.2d 382, 384 (Ind. 1986) (determining that the defendant was given ample time to obtain civilian clothing and his failure to do so did not result in him being compelling to appear to appear in jail attire); Bledsoe, 410 N.E.2d at 1314 (observing that defendant's failure to obtain civilian clothing during the five-week period preceding trial did not result in defendant being compelled to appear in jail attire). Therefore, Bronaugh was not denied due process when the trial court proceeded with his jury trial, and we affirm the decision of the trial court."

Christopher K. Washington v. State of Indiana

NFP civil opinions today (3):

Paternity of B.W.; D.W. v. T.P. (NFP)

S.R. v. T.R. (NFP)

Adoption of T.V. and M.V.; B.R. v. J.V. (NFP)

NFP criminal opinions today (5):

Bonnie Warren v. State of Indiana (NFP)

Brandy Lozier v. State of Indiana (NFP)

David D. Williams v. State of Indiana (NFP)

Mark Phillips v. State of Indiana (NFP)

Josh R. Crager v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 21, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issued one Indiana ruling today

In Sutherland v. Wal-Mart Stores (SD Ind., Lawrence), a 12-page opinion, Judge Kanne writes:

Maria Sutherland sued Wal-Mart Stores, Inc., in federal district court. Her allegations included maintenance of a hostile work environment based on sex discrimination and retaliation for reporting sex discrimination, both in violation of Title VII; violation of the Indiana Civil Rights Law; battery and confinement; intentional and negligent infliction of emotional distress; constructive discharge; promissory estoppel; and negligent retention. The district court granted summary judgment to Walmart as to each of Sutherland’s claims. Sutherland appealed the grant of summary judgment as to her hostile work environment and negligent infliction of emotional distress claims. We affirm.

Sutherland did not present evidence that would allow a jury to conclude Walmart is liable for the assault committed against her by Aguas. Therefore, we AFFIRM the district court’s grant of summary judgment in favor of Walmart.

Posted by Marcia Oddi on Friday, January 21, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Harrassing hunters law in the news

Tim Vandenack of the Elkhart Truth reports today:

ELKHART -- You're at home admiring the wintry river landscape outside your back picture window when three shotgun-toting hunters traipse into the picture, gunning for geese. What do you do?

If you're John Shea, worried about errant buckshot, you cart some stereo speakers to your back patio, despite the snow, and blast music. British blues band Savoy Brown, to be exact. Maybe the racket will get the outdoorsmen to vamoose. * * *

If you're one of the hunters, you're not amused by the music, and you call an Indiana Department of Natural Resources hotline to report Shea. If you're the DNR agent assigned to the call, meanwhile, you pay a visit to Shea's home, just west of the Elkhart city limits along the St. Joseph River, to get to the bottom of things.

"He asked me if there was a reason I was playing the music so loud and I told him I enjoyed it," Shea said.

If you're the DNR agent, you don't laugh. Rather, you explain that there's a law, Indiana Code 14-22-37-2, that says it's a Class C misdemeanor to intentionally interfere with the legal taking of game. Then you ask for a little cooperation from the music lover/wiseguy.

"He told me to turn it down, essentially. Turn it off, bring the speakers in the house," Shea said.

If you're Shea, you do as the agent says. But you're not satisfied. It's not that you're against hunting, understand. It's just that hunting Canada geese outside your home doesn't seem to be the best place for such activity, even if it is legal.

"I don't feel comfortable with people with shotguns that close," Shea said. "I'm within range."

The ILB has several other harassing hunter entries, including this one from Jan. 23, 2007 and this one from Jan. 18, 2007.

Posted by Marcia Oddi on Friday, January 21, 2011
Posted to Indiana Law

Ind. Gov't. - "Appeals court skeptical of Porter Co. RDA withdrawal request" [Updated]

That is the heading of this story today by Dan Carden of the NWI Times, reporting on an oral argument yesterday before the Indiana Court of Appeals:

INDIANAPOLIS | Porter County ran into a wall of skepticism Thursday at the Indiana Court of Appeals when it claimed the law establishing the Regional Development Authority is unconstitutional.

"It didn't become unconstitutional until you wanted to withdraw, right?" asked Judge Ezra Friedlander.

Last April, a Jasper County judge ruled Porter County cannot quit the economic development agency spanning Lake and Porter counties, because Porter County's membership and $3.5 million annual dues are mandated by the 2005 state law establishing the RDA.

Attorney Mitchell Peters, representing the Porter County Council, argued on Thursday that law violates the Indiana Constitution's prohibition on special legislation affecting specific counties unless special circumstances warrant it.

"There are no unique circumstances in Porter County, Ind., that justify forcing them into this RDA," Peters said.

But Judge Terry Crone pointed out the General Assembly identified regionwide economic development and infrastructure issues as its reasons for creating the RDA, and said the Legislature has established other regional organizations, similar to the RDA, that haven't been challenged as special legislation.

Peters agreed, and said the appeals court should put a stop to the practice.

Solicitor General Thomas Fisher, representing the RDA, argued the law creating the RDA doesn't give counties a route for withdrawal, since no government authority is authorized to seek withdrawal and there's no withdrawal process.

"We are without any good understanding of what it means to withdraw," Fisher said, claiming the inability to withdraw was the intent of the General Assembly.

Judge Paul Mathias suggested that rather than suing to withdraw from the RDA, Porter County might be better off asking its state legislators to persuade the General Assembly to rewrite the RDA law to allow the county to secede.

"They're not interested in that," Peters said.

"Then isn't your remedy at the ballot box?" Mathias replied.

The Gary Post Tribune has this report from Jon Seidel.

For background, begin with this ILB entry from Nov. 12, 2010.

[Updated at 4:06 pm] Here is today's story, at length, from Jeff Schultz of the Chesterton Tribune.

Posted by Marcia Oddi on Friday, January 21, 2011
Posted to Indiana Government

Indiana Courts - Totals now available for Nov. 2, 2010 Indiana court races

Totals for Indiana Court of Appeals retention races. (Remember that Districts 1, 2, and 3 each cover only 1/3 of the state, while Districts 4 and 5 cover the entire state.)

Totals for county judicial races.

Posted by Marcia Oddi on Friday, January 21, 2011
Posted to Indiana Courts

Ind. Courts - U.S. attorney still focusing on public corruption

A brief quote from a story by Christin Nance Lazerus in the Gary Post Tribune:

HAMMOND -- David Capp was the first attorney hired by then-U.S. Attorney for the Northern District of Indiana Jim Richmond in 1985. Capp assumed the U.S. Attorney mantle in 2010, and one of Richmond's main priorities still looms large for Capp: dealing with public corruption in Lake County.

Posted by Marcia Oddi on Friday, January 21, 2011
Posted to Indiana Courts

Ind. Gov't. - Even more on: Changes to death certificate system in Indiana

Updating a number of recent ILB entries, Virginia Ransbottom has a story today in the South Bend Tribune. Some quotes:

A new online system for recording death certificates caused some unnecessary grief for the family of Irene Wozniak, who died Jan. 14.

Wozniak's brother, George Moffett, of Lakeville, said glitches in the system delayed the paperwork necessary to provide closure for the family of his sister.

As of Jan. 1, the Indiana Death Registry System required all death records be filed using a Web-based registry.

The system requires doctors and funeral homes to sign up for a four-digit code to enter a record and is designed to speed the process of getting death certificates and reduce the risks of identity theft.

However, according to Moffett, Wozniak's doctor had not signed on with the registry, causing delays in Wozniak's cremation and taking care of her estate.

On Thursday, Moffett said that, because the doctor issuing his sister's death certificate wasn't in the system, his sister's remains were being held in cold storage at the funeral home, which could cost $125 a day.

Before a funeral home can cremate remains, it must have a death certificate from the attending physician. Burials do not need a death certificate up front.

Welsheimer Family Funeral Home, of South Bend, verified it was having trouble getting the doctor to sign on with the registry to acquire the death certificate. However, it said it would not charge $125 a day for holding Wozniak for the past week.

The doctor's office manager would not give a reason for the hold-up, but said it was a struggle getting into the system, which they did yesterday.

"They (Welsheimers) are being decent about it," said Moffett, who was trying to help his nephew, Jason Wozniak, through the death of his mother. "But this is causing a whole lot of stress and strain to families during one of the worst times in their lives."

Welsheimer's receptionist said four of the 12 deaths at the funeral home this year had delays because doctors had not signed into the state database although they had a year to do so.

For the Wozniak family, the glitch was finally taken care of Thursday, but according to The Associated Press, families across the state are also hitting roadblocks, not only because doctors had not signed up, but because some doctors object to a provision that calls for criminal charges and a $1,000 fine for failing to complete information in the system in a timely manner.

Posted by Marcia Oddi on Friday, January 21, 2011
Posted to Indiana Government

Ind. Gov't. - More on "Prosecutors group assails proposal to cut prison sentences"

Updating this ILB entry on Jan. 19th, there are several editorials today urging support of the reform plan.

"Don't let the objections kill prison reform plan: Getting a handle on overpopulation must be a top priority" is the heading of an editorial in the Fort Wayne News-Sentinel. A quote:

Now, an objection from a group of county prosecutors over one portion of the proposal threatens to kill the whole plan, and it would be a shame if it did.

The part objected to by the board of the Association of Indiana Prosecuting Attorneys is the recommendation of the State Criminal Code Evaluation Commission to shorten sentences for possession of and dealing in small amounts of drugs such as cocaine and methamphetamine. “The question is: Where is the breaking point where you're saving money to the point that it may seriously impact public safety?” asked Shelby County Prosecutor Kent Apsley on behalf of the board.

There is no formal impact on the legislation by the board's position. But it would be difficult to get the legislation through if the board maintains its objection, says state Sen. Bray, R-Martinsville, because legislators would not want to be seen as soft on crime. And if the legislature gives in and doesn't reduce the sentences, the whole plan would likely fall apart. The proposal envisions using the money saved by reducing the terms to fund another part of the plan – expanding drug abuse treatment and concentrating more resources on monitoring higher-risk offenders.

Under the proposal, possession of small amounts of cocaine or meth would be downgraded from a C felony (two to eight years) to a D felony (six months to three years) and small-scale dealing of those drugs from a B felony (six to 20 years) to a C felony.

It is fair for prosecutors to question the appropriateness of such reductions – they're in the business of dealing with crime and punishment, after all. And it's appropriate for the plan's backers to deal with the questions. But the give-and-take should be undertaken with the goal of working something out so the overall plan can be strengthened and saved.

From the Indianapolis Star, "Don't let differences disarm reform":
The Association of Indiana Prosecuting Attorneys voted last month to oppose the state Criminal Code Evaluation Commission's recommendations to reduce terms for drug possession and low-level dealing. The association's stance is not binding on the General Assembly; but as Bray, a former prosecutor and the point man for the reforms, says, passage would be prohibitive without the prosecutors' buy-in.

Nor would it work to leave current sentencing intact and pass the rest of the reforms, which the prosecutors' group generally supports. The proposed new criminal code, which emphasizes alternatives such as drug treatment and community corrections, depends for its funding on reduction of the prison population. That population has skyrocketed in Indiana while neighboring states have seen modest increases. Indiana's cost, projected to reach $1 billion by 2017, is unaffordable, says the governor; and he gets no disagreement.

Drug crimes, and lengthy mandatory sentences for them, bear the brunt of responsibility for prison crowding. While the prosecutors are correct in noting that not all drug possessors and minor dealers are necessarily nonviolent, the fact is that existing law tends to lump the dangerous with the nondangerous. The result is too many incarcerations, as officials of the Department of Correction itself will attest. Threats to society need to be locked up, but judges should have the discretion to send nonviolent drug offenders to facilities and programs that are more useful than prison and cheaper than the $20,000 a year per inmate that prison costs.

Somehow, the prosecutors and the reformers must come to a meeting of the minds about the fundamental needs and narrow their differences to the details. When it comes to reclassifying a felony from Class C to Class D, compromise has to be possible. With regard to the big picture and huge problem, the verdict is in. Crime-fighters should not be quarreling among themselves.

Posted by Marcia Oddi on Friday, January 21, 2011
Posted to Indiana Government

Thursday, January 20, 2011

Ind. Courts - More on: Do ALJs lack the authority to grant pro hac vice appearances for out-of-state attorneys appearing before their agencies? [Updated]

Here is the answer to the question posted earlier today re the authority of Indiana ALJs to grant pro hac vice appearances for out-of-state attorneys appearing before their agencies.

Thanks go to Deputy Attorney General Kevin McDowell, who has forwarded this Oct. 21, 2010 letter from Kevin S. Smith, Indiana Supreme Court Administrator and Clerk of the Supreme Court, Court of Appeals, and Tax Court, that provides in part:

I write as a courtesy to let you know that under current Indiana law, ALJs do not have the authority to grant such requests of foreign attorneys for temporary admission], even when the practice of law involves representing a client in a hearing before an administrative body, such as the Indiana Board of Pharmacy. Rather, admission to practice law in Indiana is exclusively the province of the Supreme Court.
[Updated] Don Lundberg writes to say his next Res Gestae column is devoted to this topic. The ILB intends to link to it when published.

Posted by Marcia Oddi on Thursday, January 20, 2011
Posted to Indiana Courts

Ind. Courts - State Road 135 land annexation dispute before Supreme Court today

The Johnson County Daily Journal has made available the briefs in one of the three cases the Supreme Court heard oral argument on today, City of Greenwood v. Town of Bargersville, noting:

Justices will hear arguments from attorneys representing Bargersville and Greenwood about who should be able to annex land along State Road 135 considered ripe for residential and business development.

Beyond Johnson County, the decision by the high court is expected to have implications concerning how all Indiana cities and towns can extend sewers and annex land.

The road to the Supremes has been pricey. Combined, legal fees are nearing three-quarters of a million dollars.
Here are the briefs, via the Daily Journal (unfortunately, its coverage of the argument today is behind a paywall):
From Bargersville: Brief 1. Brief 2.

From Greenwood: Brief 1.

From other groups supporting Bargersville: Brief 1.

Posted by Marcia Oddi on Thursday, January 20, 2011
Posted to Indiana Courts

Ind. Courts - "Lake commissioners favor bill to appoint judges: 'It takes some of the politics out of the courts'"

Chelsea Schneider Kirk reports today in the Gary Post Tribune:

The Lake County Board of Commissioners voted Wednesday to support legislation that allows for the appointment of the four judges presiding over the county division of Lake Superior Court.

County Commissioner Fran DuPey, D-Hammond, abstained from the vote, citing her concerns over merit selection of judges.

The state Senate bill for judicial appointments is being carried by Sen. Sue Landske, R-Cedar Lake, and Sen. Karen Tallian, D-Portage. Currently, the county division judges are elected by voters every six years.

Under the bill, a judicial commission would nominate the judges for the governor to appoint. Lake County voters would then decide whether to retain the judges every six years. The legislation doesn't impact the elected position of Circuit Court judge, now held by George Paras.

"It takes some politics out of the courts," County Commissioner Roosevelt Allen, D-Gary, said, "and makes them more neutral."

Commissioners attorney John Dull said the bill might result in cost savings because the probation departments of the county division could be integrated with the rest of the superior courts. Currently, ethical rules stop the two from mixing, Dull said.

The bill is Senate Bill 499.

Posted by Marcia Oddi on Thursday, January 20, 2011
Posted to Indiana Courts

Ind. Courts - Do ALJs lack the authority to grant pro hac vice appearances for out of state attorneys appearing before their agencies?

I received this note from a reader last Friday and sent an inquiry to the Court, but still haven't heard back. Anyone?

I was just told that the Indiana Supreme Court sent a letter to all Administrative Law Judges advising them that they lack the authority to grant pro hac vice appearances for out of state attorneys appearing before their agencies. I know that the IURC routinely grants pro hac vice appearances (and the Supreme Court has accepted the follow up filings and fee payments) in the past. According to what I was told, the Supreme Court is now taking the position that an actual court (presumably a local circuit court) must approve pro hac vice petitions for lawyers to appear before administrative agencies.

Posted by Marcia Oddi on Thursday, January 20, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Deborah Walton, et al. v. Claybridge Homeowners Association, Inc. (NFP)

NFP criminal opinions today (8):

Nathaniel Williams v. State of Indiana (NFP)

Daniel Buchanan v. State of Indiana (NFP)

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

Anthony Bedolla v. State of Indiana (NFP)

Austin Zell v. State of Indiana (NFP)

Gregory Fording v. State of Indiana (NFP)

Brian Biddle v. State of Indiana (NFP)

Michael Stiles v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 20, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Legal challenge to Iowa judicial nominators is rejected"

As with challenges to the judicial selection systems for appellate judges in Kansas and Alaska, a federal court yesterday threw out a challenge to the Iowa system. For background on the previous challenges, all brought by Indiana's Jim Bopp, see this Oct. 2, 2010 ILB entry that began:

Updating this Sept. 15, 2010 ILB entry, which related that "A federal judge has denied a request to stop the way Kansas Supreme Court justices are selected," and this Aug. 29th entry where the ILB compared the Kansas and Indiana selection systems, this Oct. 1st story by Lisa Demer of the Anchorage Daily News reports that the 9th Circuit has rejected a similar challenge in Alaska. The headline: "Alaska's system for selecting judges is sound, court rules: Lawsuit was rejected as an attempt to change the constitution."
Here is the story written by Grant Schulte in today's DesMoines Register. Some quotes:
A federal judge has tossed a lawsuit that claimed lawyer members of the state group that nominates people to become Iowa Supreme Court justices should be chosen by voters.

U.S. District Judge Robert Pratt rejected arguments that seven lawyers on the 15-member commission should be excluded from the search for new Supreme Court justices. Four Iowans alleged in a lawsuit that participation by the lawyers - who are elected by other lawyers - denies them their constitutional equal protection rights.

Pratt said the plaintiffs failed to show a clear violation of their constitutional rights.

"Undoubtedly, the right to vote for political representatives is the bedrock of American democracy," Pratt wrote in the ruling. "In this case, however, plaintiffs are asking the court to radically expand the scope of this fundamental right beyond all existing precedent and to recognize an entirely new 14th Amendment 'right' to greater influence in the selection of judges."

The lawsuit was filed by attorneys from the Indiana-based James Madison Center for Free Speech, a right-leaning legal group, on behalf of four Iowans.

See also this background article from Dec. 5, 2010.

Posted by Marcia Oddi on Thursday, January 20, 2011
Posted to Courts in general

Environment - "The environmental disaster at Ohio’s Grand Lake St. Marys justifies reasonable restrictions on Indiana’s large confined animal operations and the manure the agricultural operations create"

That is how an editorial from yesterday's Fort Wayne Journal Gazette begins. It continues:

State leaders have crafted a number of bills to control the potential environmental damage that inadequate regulation of animal waste creates. Though Republicans are proposing all the bills, none are yet scheduled for hearings, and it’s questionable whether adequate regulations will be adopted.

Last summer, Grand Lake St. Marys was closed for boating, swimming, fishing and all other recreation for most of the season because of algae blooms created by excessive runoff of phosphorus-laden fertilizers. The culprit of the contamination, which devastated local businesses catering to lake visitors, was manure from large confined animal feeding operations in watersheds feeding the lake.

More concerning, one proposed solution to the problem at Grand Lake St. Marys appears to have failed. A December report from the Ohio Environmental Protection Agency shows spreading alum in the lake to abate the algae blooms had little to no effect on phosphorus in test areas. The other approach Ohio officials are taking is to ship large quantities of manure from the Grand Lake St. Marys area to Indiana for disposal.

SB 118
, authored by Sen. Dennis Kruse, R-Auburn. Allows local governments to adopt an ordinance to regulate the use of fertilizer material that contains phosphate.

If passed, this bill would prevent what happened in Steuben County. In 2007, the Steuben County commissioners adopted an ordinance to restrict phosphorus lawn fertilizers in an effort to protect that county’s valuable lakes from algae blooms. But in 2010, the Office of the Indiana State Chemist, which regulates the storage and use of fertilizers, overturned the ordinance.

Barbara Sha Cox, of Indiana CAFO Watch, said the reversal really upset her because of the strong case elected officials in Steuben had in supporting the ordinance.

“I’ve contacted the state chemist’s office repeatedly about the out-of-state manure problem,” she said. They are dragging their feet on that, yet they could zoom in and overturn Steuben’s rules.”

See this list of ILB entries mentioning the catastrophe at Ohio's Grand Lake St. Marys and its impact on Indiana.

See these ILB entries
re what happened to Steuben County when it tried to restrict phosphorus lawn fertilizers.

Posted by Marcia Oddi on Thursday, January 20, 2011
Posted to Environment

Wednesday, January 19, 2011

Ind. Courts - "Starke County Prosecutor Replaces Chief Deputy Prosecutor Todd Wallsmith" [Updated]

From Kankakee Valley K99.3 WKVI FM, published Jan. 19, 2011:

WKVI has learned that new Starke County Prosecutor Nicholas Bourff has replaced his Chief Deputy Todd Wallsmith only two weeks into his term.

Both men had been employed by Wallsmith’s father, David, and had developed a friendship. But because Todd Wallsmith was a nephew of Starke Circuit Court Judge Kim Hall, it would have been impossible for him to present cases before the Judge in court. That would have been a conflict.

Finally realizing the predicament his office was in, Bourff replaced Wallsmith with Mary Ryan who had been the Chief Deputy of the former Prosecutor, Julianne Havens.

ILB: Would it have been a conflict?

[Updated 1/20/11] A reader point to this laanguage from Rule 2.11 (A)(2) of the Indiana Code of Judicial Conduct:

(A) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality* might reasonably be questioned, including but not limited to the following circumstances:

(2) The judge knows* that the judge, the judge's spouse or domestic partner,* or a person within the third degree of relationship* to either of them, or the spouse or domestic partner of such a person is:

(b) acting as a lawyer in the proceeding;

ILB: Note that the words followed by an asterisk (*) are defined here. “Third degree of relationship” includes the following persons: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece.

Posted by Marcia Oddi on Wednesday, January 19, 2011
Posted to Indiana Courts

Ind. Gov't. - "Prosecutors group assails proposal to cut prison sentences"

Updating a long list of entries on the Governor's proposal to reform Indiana's sentencing laws, including this one from Jan. 17th, Heather Gillers reports today in a long front-page story in the Indianapolis Star:

A group of county prosecutors has denounced a legislative proposal backed by Gov. Mitch Daniels to shorten sentences for many drug crimes.

The prosecutors' position signals what could be a provocative debate in the Statehouse over whether the proposal is a responsible way to curtail prison costs or a soft-on-crime measure that might endanger the public.

The sentence reductions are part of a larger criminal justice overhaul backed by Daniels, Chief Justice Randall Shepard and two national think tanks. But one senator involved fears the debate over cutting sentences -- and the almost-certain accusations of being soft on crime -- could torpedo the entire reform package. * * *

The prosecutors board's vote has no formal impact on the proposed legislation. Still, over the past several weeks, [criminal code] commission members have been trying to hash out a compromise with prosecutors. The sentence reductions are especially important because they create the savings that would pay for other reforms in the proposal. * * *

Legislators "don't want to be put in a position where they're not considered 'law and order,' " said Sen. Lindel Hume, D-Princeton, another commission member. "But I think you can be 'law and order' and also be thoughtful, so that as we do these things, what we do makes sense."

Bray, a former prosecutor, said he was skeptical of the reforms before he saw the data. The Pew Center on the States and the Council of State Governments Justice Center found that Indiana's prison population has grown at triple the rate of neighboring states over the past eight years -- despite a drop in the crime rate. The two think tanks found that if the prison growth continues, it will cost the state an additional $1.2 billion over the next seven years.

The proposed reform package drafted by the Criminal Code Evaluation Commission would require offenders convicted of most felonies to spend the final six months to three years of their sentences outside prison in community monitoring programs.

The state would work to transform its disjointed network of monitoring programs -- in hopes of doing a better job of rehabilitating those prisoners after their early release -- by giving additional funds to those programs that keep people out of prison.

The state also would reduce sentences for many drug crimes, downgrading possession of small amounts of cocaine or methamphetamine to a D felony from a C, and downgrading small-scale dealing of those drugs to a C felony from a B. (A D felony can result in a sentence of six months to three years, a C felony of two to eight years and a B felony of six to 20 years.) * * *

Lawmakers on the commission said conceding to prosecutors' demands could cause the whole plan to fall apart, because the proposal envisions using the money saved by reducing prison terms to strengthen community monitoring. Changes would include expanding drug abuse treatment services and concentrating more resources on monitoring higher-risk offenders.

Posted by Marcia Oddi on Wednesday, January 19, 2011
Posted to Indiana Government

Ind. Gov't. - "Unforeseen obstacles in the mix for startup doughnut factory"

Ruth Holliday's blog entry today reminded me that I'd intended to post about this lengthy story from the Sunday Star (Jan. 16th) reported by Jeff Swiatek. (BTW, I agree with Ruthie, it is nearly impossibly to read a Star story more than one-page long online. Why do they even bother to "post" it?) Some quotes:

[Mike] Ferrell, 45, knew it wasn't going to be easy getting a wholesale bakery up and running from scratch. One thing he didn't bank on was the long path of government approvals he'd have to slog down. It slowed his startup by six to eight weeks, he estimates.

The culprits are right there on his desk as he speaks: three precious cardboard building permits that he finally extracted from government regulators.

"When you're a small businessman like us, and never gone through it," he says, "it's a daunting task. It was brutal.

"Nobody was mean to us or bad. They were real helpful. But the layers, you just get bogged down," says Ferrell, a former Krispy Kreme corporate manager who's trying to realize his dream of going it alone.

Consider a few examples of what happened when red tape met the doughnut-making business:

» City zoning staff wanted Ferrell to plant 26 trees around his property on South Kitley Avenue, though it's surrounded by industrial properties and hardly in a parklike setting. (To get a feel for the neighborhood, consider that an eight-foot metal fence topped with barbed wire lines the other side of the street.) Ferrell's attorney, whom he hired for the zoning process, managed to lower the requirement to just six trees on the front lawn. Even at that, Ferrell looks out his front widows and wonders where he'll plant six shade trees in a lawn underlain with utility lines and water monitoring wells.

» Virginia Kay's has just one employee, Ferrell's nephew Nick, but building codes required a bathroom up to the standards of the Americans with Disabilities Act, including an extra-wide doorway and grab bars. Ferrell calls the $4,000 cost of the over-designed bathroom "ridiculous."

» A building inspector required Ferrell to install a water fountain on the premises. "When I said, 'What's wrong with bringing water in every day?' they said, 'What if you forget to order it?' "

» And the one that really gnaws at Ferrell: a "decontamination shower" next to the doughnut line, at a cost of $2,000. "In case you get sprayed with jelly, I guess," Ferrell says.

Posted by Marcia Oddi on Wednesday, January 19, 2011
Posted to Indiana Government

Ind. Gov't. - "If not townships, then what? Governor calls for end to system; most legislators favor incremental reform"

That is the headline to a story in today's Bloomington Herald-Times. It is behind a paywall, but here are a few quotes:

Baby steps.

When it comes to reforming Indiana’s township governments, that’s where most state lawmakers outside of the governor’s office want to start.

New penalties for trustees who fail to submit annual reports, maybe, or enhanced state guidance for tricky forms. There is widespread support for new anti-nepotism rules, and some legislators trumpet requirements that would force county councils to pick up new, and perhaps unwelcome, oversight duties. * * *

But, while Gov. Mitch Daniels has again this year called for the complete elimination of townships — “venerable but obsolete,” he calls them — few others in Indianapolis want to go that far.

There aren’t even any bills up for consideration that would take such a drastic step.

Posted by Marcia Oddi on Wednesday, January 19, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Jeffrey Allen Rowe v. Indiana Dept. of Correction, a 6-page opinion in a pro se case, Judge Friedlander writes:

Upon interlocutory appeal, Jeffrey Allen Rowe challenges the trial court’s ruling on a motion he filed entitled “Appellant’s Verified Petition For An Order Waiving All Or Partial
Filing Fees And Court Costs.” We do not address the issue presented by Rowe, however, because we lack jurisdiction and therefore must dismiss. * * *

This is neither an order to pay money within the meaning of App. R. 14(A)(1) nor tantamount to one. Accordingly, we conclude that the small claims court’s ruling on his verified petition for waiver of fees and costs is not an interlocutory order appealable as a matter of right under App. R. 4(A)(1). This being the case, Rowe was required to request a discretionary appeal pursuant to the procedures set out in App. R. 14(B). He failed to do this. Because no basis exists for an interlocutory appeal as a matter of right pursuant to App. R. 14(A), we dismiss Rowe’s appeal for lack of jurisdiction.

In Leo Machine & Tool Inc., et al. v. Poe Volunteer Fire Dept. Inc., et al., a 1/2 page ruling on a rehearing petition, Judge Riley writes:
[W]e affirm our opinion in full with the addition that we now also affirm the trial court’s summary judgment in favor of Anderson on the same legal grounds.
NFP civil opinions today (3):

Kathy Lynch v. Daryl and Elizabeth Ackerman (NFP)

George Sheffer v. Gayle Sheffer (NFP)

Frank E. Willis v. Keith Holder (NFP)

NFP criminal opinions today (4):

Christina Smith v. State of Indiana (NFP)

Jamie S. Weddle v. State of Indiana (NFP)

State of Indiana v. Michael Willaims (NFP)

Michael P. Wright v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 19, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - New tax court judge takes office but robing ceremony won't be until March 8, 2011

A press release announces that new Tax Court Judge Martha Wentworth is already at work:

Ms. Martha Blood Wentworth will take her seat as judge of the Indiana Tax Court on January 17, 2011. Ms. Wentworth was appointed to the position by Governor Mitch Daniels on December 22, 2010. She was one of the three candidates presented to Governor Daniels by Indiana’s seven-member Judicial Nominating Commission. She succeeds Judge Thomas G. Fisher who retires this month.

Ms. Wentworth’s formal robing ceremony will take place in the Supreme Court Courtroom, State House 3rd Floor at 10:30 a.m. on Tuesday, March 8, 2011.

Posted by Marcia Oddi on Wednesday, January 19, 2011
Posted to Indiana Courts

Courts - "The Oldest Bench Ever: Extreme aging in the federal judiciary—and the trouble it causes."

Long, very interesting article by Joseph Goldstein, published in Slate on Jan. 18, 2011. Some quotes:

Life tenure, intended to foster judicial independence, has been a unique feature of the federal bench since the Constitution was ratified in 1789. Back then, the average American lived to be about 40 and the framers didn't express much worry about senile judges. "A superannuated bench," Alexander Hamilton said, is an "imaginary danger."

No longer. Today, aging and dementia are the flip side of life tenure, with more and more judges staying on the bench into extreme old age. About 12 percent of the nation's 1,200 sitting federal district and circuit judges are 80 years or older, according to a 2010 survey conducted by ProPublica. Eleven federal judges over the age of 90 are hearing cases—compared with four just 20 years ago. (One judge, a Kansan appointed by President John F. Kennedy, is over 100.) The share of octogenarians and nonagenarians on the federal bench has doubled in the past 20 years. The demographics of the federal bench have no analogue on the state courts, where judges mostly occupy their office for a term of fixed years and generally have mandatory retirement ages, often in their 60s or 70s. * * *

The judiciary does not assess the competence of its senior judges. The courts have no formal policy requiring, or even recommending, that judges receive medical checkups or consult with geriatricians. Instead, the institution relies on other judges to monitor colleagues, and, working discreetly behind the scenes, to push out enfeebled judges gently. Judge Dee Benson of U.S. District Court in Utah, age 62, likened the process to persuading an elderly parent to stop driving: "How are we going to get grandma off the highway?"

The judge who patrols that highway most aggressively is Frank Easterbrook, chief of the Chicago-based 7th Circuit U.S. Court of Appeals. In the last four years, Easterbrook says, he has arranged for two colleagues to see neurologists. One was diagnosed with Alzheimer's and retired. The other insisted on returning to the bench after a stroke, but because he had difficulties "with executive function," Easterbrook said, he removed all criminal cases from the judge's docket. Easterbrook has even publicly called on lawyers to contact his chambers directly if they think a judge is exhibiting symptoms of dementia—a rare move by the bench to enlist the public in monitoring judges.

Posted by Marcia Oddi on Wednesday, January 19, 2011
Posted to Courts in general

Ind. Gov't. - "Clark drainage rules violate Indiana law, suit argues"

Ben Zion Hershberg reported in a lengthy Jan. 14, 2011 story in the Louisville Courier Journal:

A couple has sued the Clark County Drainage Board and the developer of a subdivision next to their property, claiming the subdivision has sent thousands of gallons of extra water onto their land, repeatedly destroying their driveway and turning much of their five acres into a swamp.

“We’ve been here 40 years, and we had no problems” before the Forest Hills subdivision was built three or four years ago, said John Nicholson, who lives with his wife Charlotte on Ind. 60 near Bennettsville.

The couple’s lawsuit strikes at the heart of drainage regulation in the county, and if successful, it could have a big impact on the county, with at least half a dozen simlar lawsuits “waiting in the wings,” according to former County Surveyor Bob Isgrigg.

Such a victory, Isgrigg said, could require a rewriting and toughening of the county drainage ordinance, which would affect many new subdivisions as the county grows.

The lawsuit argues that the county regulation “is in direct violation” of the state’s drainage laws because it allows “drastically increased amounts of storm water to be discharged onto the down stream land owners after any normal rainfall.”

Greg Fifer, the Clark County Attorney and lawyer for the drainage board, agreed that a successful lawsuit by the Nicholsons could raise quiestions about the county’s drainage regulation and how it complies with state law. But he believes the lawsuit should be considered on much narrower grounds — simply as an example of county government enforcing its rules.

In contrast with the Nicholsons and Isgrigg, he believes the county drainage ordinance protects the public better than state law. * * *

The Nicholsons’ fired back with their lawsuit in Clark Circuit Court, claiming the water flow onto their driveway isn’t natural but “was artificially manufactured” by the subdivision’s development.

Isgrigg, who was county surveyor until his election loss last year, said he believes the Nicholsons are correct in pointing out a conflict between the county ordinance and state law.

Ironically, he issued the order requiring the Nicholsons to remove the curb along their driveway because he believes it meets the definition of “obstruction” to water flow that should be removed.

But, Isgrigg said, he thinks the Nicholsons’ drainage problems were caused by a flawed county drainage ordinance, which he believes exceeds state limits on how much water can be drained across a neighbor’s property when a subdivision is built.

He pointed to state statutes that say a subdivision drainage plan “must maintain the amount of drainage through the tract that existed when the tract was created,” before it was developed.

Isgrigg and the drainage board, of which he was a non-voting member, disagreed so much during his tenure as surveyor that he sued the board, saying it violated his authority to review and approve drainage repairs planned by the agency.

Clark Superior Court Judge Vicki Carmichael agreed with Isgrigg in a ruling last year, but Fifer has asked the court to reconsider

Fifer contends Isgrigg’s interpretation of state drainage law is incorrect. He argued in a telephone interview that it’s impossible for a subdivision, with its streets, rooftops and other hard surfaces, which prevent rain water from being absorbed by the earth, to not increase the water flowing from the area after it rains.

Fifer said that he interprets the language in state law to mean water flowing through a subdivision can’t be blocked by development, and that a drainage plan must provide culverts, drains and other features that will allow water to keep flowing through the area.

In contrast to the state law, Fifer said, the county drainage ordinance says the rate of water flow after development can’t exceed the rate of water flow before a subdivision is built.

So the increased water flowing from a subdivision after its houses and streets are built must be slowed by ponds or basins so that the rate of runoff after a storm, isn’t greater than it was previously.

Water will flow from a subdivision for a longer time after development, Fifer explained, but it must flow at the same rate as it did before the land was developed.

That means, Fifer said, that under the county ordinance, a neighbor’s property may “be wetter, longer” after a subdivision is developed next door.

For background, start with this ILB entry from Dec. 11, 2010.

Posted by Marcia Oddi on Wednesday, January 19, 2011
Posted to Indiana Government

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

In Anthony Smith v. Gil Peters (SD Ind., Young), a 6-page opinion, Judge Posner writes:

Anthony Smith, an Indiana state prisoner, filed this civil rights suit which charges that prison employees had violated the Eighth Amendment by forcing him to work at hard labor in dangerous conditions, and had violated the First Amendment by penalizing him for questioning the propriety of the work assignment and preparing to sue. He seeks damages. He also seeks injunctive relief, but that claim is moot because he’s been moved to a different prison. The district court dismissed the complaint for failure to state a claim.

Smith was assigned to uproot tree stumps. Workers on the stump crew were forced, the complaint alleges (and since the complaint was dismissed on its face, we take its allegations to be true, though of course without vouching for their truth), to work in “freezing cold” with axes, pickaxes, and shovels and without having received any safety instruction or protective gear—not even gloves. * * *

The “usual discomforts of winter” to which the district judge referred do not include handling heavy tools with gloveless hands in subzero weather. Our prison system is not the gulag. Smith’s blisters could have been caused by his handling the stump removal tools without gloves, or could even have been precursors to or consequences of frostbite—the record does not say. But the allegations of the complaint are sufficient to preclude dismissal for failure to state a claim. * * *

The district court’s failure to address Smith’s First Amendment claim was another error. If the facts alleged in the complaint are true, which has yet to be determined, he was punished for complaining about mistreatment, and such punishment is an infringement of the freespeech rights, limited as they are, of prison inmates.

The judgment is reversed and the case remanded for further proceedings consistent with this opinion. 1-19-

Posted by Marcia Oddi on Wednesday, January 19, 2011
Posted to Ind. (7th Cir.) Decisions

Tuesday, January 18, 2011

Ind. Gov't. - Storms didn't make hiring cut for Duke job until Reed got involved

Today, another John Russell / Indianapolis Star story involving Duke Energy and the IURC. Russell interviews Duke's chief executive, James Rogers, over the phone, in a story headed "Duke CEO: Storms' hiring a mistake; Lawyer didn't make cut until Reed got involved." The long story begins:

The man at the center of Duke Energy Corp.'s ethics scandal, Scott Storms, should never have been hired by the utility as a regulatory lawyer and wasn't even on the list of five finalists, the company's chief executive, James Rogers, said in an interview.

Storms had been dropped from consideration in June, after he expressed informal interest in the job, and was notified of that decision, Rogers said.

But Storms, the top lawyer at the Indiana Utility Regulatory Commission who was handling several important Duke cases, managed to survive the cut, get reconsidered and eventually win the job as assistant general counsel in Duke's Plainfield office.

That happened because of the behind-the-scenes work of an influential friend, Michael Reed, who had just joined Duke a few months earlier as president of the company's Indiana operations, Rogers said. Storms and Reed had worked together at the utility commission for three years, from 2006 to 2009, when Reed was executive director and Storms was an administrative law judge.

The most interesting part of the story to me was a short paragraph two-thirds of the way through the story. Remember, the IURC is the regulator, Storms is the chief administrative law judge, Duke is the company subject to the IURC decisions:
[CEO] Rogers said that Kelly Karn, Duke's associate general counsel in Plainfield, approached Storms only informally in April.

"She approached along the lines of, we have this opening, get the word out to the commission if anyone is interested. And he kind of raised his hand and said, 'I might be interested,' " Rogers said.

Posted by Marcia Oddi on Tuesday, January 18, 2011
Posted to Indiana Government

Ind. Gov't. - What is the role of the new House Committee on Government Reduction?

There was much fanfare late last year when House Speaker Bosma appointed Democrats to head two House committees. One was the newly created House Select Committee on Government Reduction, to be chaired by Representative Dobis (D).

What exactly was to be the charge of the new committee was unclear to me -- was it to reduce regulation, eliminate some state agencies and combine others together, etc?

Today, looking for a cue, I took a look at what bills have been assigned to the new committee.

Here is the list, there are currently 3 bills assigned.

Another House committee whose name indicates a similar charge, Government and Regulatory Reform, chaired by Rep. Hinkle (R), currently has 15 bills assigned.

Posted by Marcia Oddi on Tuesday, January 18, 2011
Posted to Indiana Government

Ind. Gov't. - Bill to end lengthy legal battle over high-fenced deer hunting

From a story Sunday in the Fort Wayne Journal Gazette, reported by Niki Kelly:

Rep. David Wolkins, R-Winona Lake, wants to end a years-long legal battle over high-fenced deer hunting in the state. House Bill 1299 essentially codifies a phase-out of these hunting preserves in which people pay to hunt deer behind a fence. A lawsuit in southern Indiana is pending, and the state has spent tens of thousands of dollars defending its prohibition against these operations. They currently remain in business under a court injunction. Wolkins said there are only a handful of such operations left in the state, and it is time to phase them out.
Here is a long list of ILB entries on "canned hunting."

Posted by Marcia Oddi on Tuesday, January 18, 2011
Posted to Indiana Government

A teaching moment - "Is it usual to use 'big poster/charts' in oral arguments?"

This entry is the first of an occasional series ...

In this ILB entry on Jan. 11, 2010 the ILB reported that oral argument had been held before a Court of Appeals panel in the case of JK Harris & Company, LLC, vs. Ronald Sandlin, and it appeared from the few seconds of 6News video showing the actual argument that one of the attorneys was using a big poster/chart. I asked IU-Indy Law Prof Joel Schumm, who does mainly criminal appeals, whether this was unusual. He responded:

Yes, it is uncommon. The staff at the Supreme Court seems to discourage it because, I believe, (1) often the justices can't see what is on it, (2) it doesn't show up on the webcast, and (3) the lawyer seems to wander from podium/mic and becomes more difficult to hear. Handouts are usually more effective. Counsel can give them to staff the morning of the argument or file them in advance. Everyone is then, literally, on the same page.

The Court of Appeals' courtroom is smaller, so the judges may have been able to see the enlarged arbitration agreement at issue yesterday.

Rule 53(F) does allow for physical or demonstrative exhibits.

Prof. Schumm sent links to a couple of examples in: In the Matter of James R. Recker - "Watch around 12:50; also note the other attorney takes down the exhibit when he begins at 29:50. At 31:50 Justice Sullivan thanked him for putting down the diagram because it wasn't relevant."

Another attorney who appears frequently before the Indiana appellate courts in civil appeals, Maggie L. Smith of Frost Brown Todd LLC, offered this response:

If your demonstrative exhibit is simply a blow up of text, then it is rarely helpful and should be avoided. But sometimes maps or pictures form a critical basis of understanding the issues on appeal. Ideally, the parties would have embedded these maps/pictures into their briefs or included them in an Addendum (instead of just putting them into the Appendix). If this is done, it makes the use of demonstrative exhibits unnecessary during oral argument because practitioners would simply direct the panel to the page in the brief or the addendum (which all the judges have right there before them).

But the practice of embedding pictures/maps and using an Addendum has still not caught on in most appeals, so it can be helpful to blow up a map/picture from the appendix and highlight it at oral argument. Recently I was hired to do an oral argument and in preparing to do the argument, I realized that a map was critical to understanding the issues, but the parties had not reproduced it in the briefs or an Addendum. I used a blow-up poster of the map in an oral argument, and it made a big difference.

But whatever is on the poster should also always be reproduced on a separate 8x10 or 8x14 handout to give to the judges during the argument as well.

While not required, the preference of both the Court of Appeals and Supreme Court is to file a notice telling the court of your intent and letting them know why it’s appropriate. It’s also a good idea to give opposing counsel a heads up and even better would be to let the court know counsel has no objection in your notice itself.

Schumm adds:
I agree filing some sort of notice, in advance, is a good idea. This avoids the awkward possiblity of opposing counsel objecting or the Court expressing confusion or dissatisfaction when the exhibit is used.

Technology that allows everyone to see an exhibit would be nice in the appellate courtrooms. Not for painful PowerPoint monologues but for carefully thought-out, selective quotations of a statute, contract, etc. or for a key diagram. The Wynne Courtroom at the law school is equipped with screens visible to the audience and the bench.

Jon Laramore, lead partner in Baker & Daniels' appellate practice group, writes:
Demonstratives are not often helpful in oral argument. Our Supreme Court, in its written instructions to those presenting oral argument, explicitly discourages the use of demonstratives in blow-up chart form because they can be hard to see and require the lawyer to leave the microphone. The same would be true in the Seventh Circuit. In the Supreme Court courtroom, it is easier to give each judge a handout with any material the lawyer presenting argument wants to use. The smaller format also makes the demonstrative less the center of attention, which generally is good because the point of argument is answering the court’s questions, not explaining a demonstrative.

It also is much better when the demonstrative is taken directly from the record. Then no one can complain about its legitimacy or that it isn’t proper for the court to consider.

The Court of Appeals courtroom is smaller, so the issues of visibility and audibility are less. I still prefer using 8.5 x 11 handouts rather than blow-up charts in that courtroom. I also remember an argument more than ten years ago presented by a Chicago lawyer in the Indiana Court of Appeals in a labor case. He came with a large blow-up of the statute, but it still was in small enough print that it was difficult for the judges to read. He started off talking about the chart, and his entire time was used up by questions about the chart rather than the points he wanted to make. Ever since then, I’ve been wary of using a large chart because it has the potential to distract from the main points an advocate is trying to make. When there’s a handout rather than a chart, it seems easier to refocus the discussion away from what’s on the page when it’s the right time to do so.

Here is the part of the Supreme Court's instructions for counsel scheduled to present oral argument to the Supreme Court relating to use of exhibits:
If you use an exhibit as part of your argument, you may want to consider limiting such use to 8.5" x 11" documents copied from the record of proceedings. Using some form of document from outside the record of proceedings might be useful in the right type of case, but bear in mind that new evidence cannot be introduced at this stage of the proceedings without leave of court obtained well in advance of the argument. If you use a documentary exhibit, have enough copies for each Justice and opposing counsel. The Sheriff or someone from the Division of Supreme Court Administration will place these on the bench before the argument begins. Using exhibits placed on an easel would be unusual and can be problematic in the Courtroom. The Justices are seated about eighteen feet from the speaker’s podium, making most visual aids hard to see. Further, to point to the visual aid, you almost certainly will have to separate yourself from the podium microphone, making it hard for you to be heard. Also, the exhibits will not be picked up by our webcast cameras (see below). Please keep these considerations in mind.
The Court of Appeals has not published similar instructions. Its courtroom is much smaller. Also keep in mind that the COA often takes its oral arguments "on the road" to various non-courtroom settings.

Posted by Marcia Oddi on Tuesday, January 18, 2011
Posted to A teaching moment

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (2):

Desmond Parks v. State of Indiana (NFP)

Eddie G. Love v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 18, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - "Traffic Camera Companies Renew Push in Indiana"

Adding again to what is by now a long list of ILB entries on red-light cameras, an item in the theNewspaper.com: A Journal of the Politics of Driving reports today:

The photo enforcement industry is now working overtime to make up for lost ground by expanding operations into states where neither red light cameras nor speed cameras have been well received. Lobbyists are hopeful that Indiana could be the next state to reconsider.

Powerful members of the General Assembly earlier this month introduced legislation to authorize the use of traffic cameras. House Majority Leader William C. Friend (R-Elkhart) introduced House Bill 1199 authorizing the widespread use of speed cameras. Senate Majority Caucus Chairman Jim Merrit (R-Marion) authored a companion measure, Senate Bill 527, legalizing red light cameras. Photo ticketing vendor Affiliated Computer Services (ACS) has given lawmakers $51,650 with most of the funds directed to the House and Senate Republican campaign committees and Republican Governor Mitch Daniels. Democrats have also gotten in on the action. In October, Arizona-based camera company American Traffic Solutions gave state Representative Pat Bauer (D-South Bend) $1000. State Representative Shelli VanDenburgh (D-Lake County) cosponsored the speed camera bill.

This legislation allows the state highway department to lower the speed limit on a freeway or a locality to designate a "work zone" where a photo radar device would be set up to issue tickets worth $300 for a first offense to $1000 for a third. The systems could also be used in school zones during times when class is in session. Tickets would be mailed within six business days of the alleged violation and notice must be sent by certified mail.

The Senate red light camera bill gives the private company up to sixty days to drop the $150 ticket into a regular mail box. The state government would take a thirty percent share of the net profit from citations issued by municipalities and would suspend the registration of any vehicle owner that did not receive or respond to a ticket. The measure also repeals the definition of "official traffic control devices" under Indiana law, allowing private corporations to regulate traffic instead of the "authority of a public body."

Posted by Marcia Oddi on Tuesday, January 18, 2011
Posted to Indiana Law

Ind. Gov't. - NYT editorial on "Indiana’s Answer to Prison Costs"

A favorable national editorial today on Daniels' plan. A quote:

Governors seeking wisdom on how to proceed could start by looking at what Gov. Mitch Daniels, a Republican, is trying to accomplish in Indiana.

The centerpiece of Mr. Daniels’s approach is a set of reforms governing sentencing and parole. Judges would be allowed to fit sentences to crimes and have the flexibility to impose shorter sentences for nonviolent offenses. A poorly structured parole system would be reorganized to focus on offenders who actually present a risk to public safety.

Addicts would be given drug treatment to try to make them less likely to be rearrested. And there would be incentives for towns to handle low-level offenders instead of sending them into more costly state prisons.

Posted by Marcia Oddi on Tuesday, January 18, 2011
Posted to Indiana Government

Monday, January 17, 2011

Ind. Courts - Order to clarify the operation of Appellate Rules 25(B) and 25(C) as they relate to determining the due date of a Rule 34(D) motion

The Supreme Court filed this 2-page order Jan. 14, 2010,in In re the Marriage of Bir. The relevant paragraph:

Per Appellant’s counsel’s suggestion, we publish this order to clarify the operation of Appellate Rules 25(B) and 25(C) as they relate to determining the due date of a Rule 34(D) motion. Specifically, when a response to a motion is served by mail, three calendar days are immediately added to the service date per Appellate Rule 25(C) (“. . . the time period for filing any response or reply to the document shall be extended automatically for an additional three (3) days from the date of deposit in the mail or with the carrier”). The five non-business days expressed in Rule 34(D) are then counted from that third calendar day if it is a business day, or are counted from the next business day if the third day of the “additional three days” falls on a non-business day,” see App. R. 25(B) (“When the time allowed is less than seven (7) days, all non-business days shall be excluded from the computation.”).

Posted by Marcia Oddi on Monday, January 17, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Some thoughts about Indiana NFP opinions; isn't it time to abolish all distinctions?

On Jan. 5th, the ILB posted this entry, headed "In Illinois, "Can you cite to unpublished opinions?" What about Indiana?"

This sent me to the ILB archives and today I republish, with some minor omissions and updates, an ILB entry first posted on Oct. 27, 2008.



Over two More than four years ago now, on August 23, 2006, the Indiana Court of Appeals began making its not-for-publication opinions (NFP) available online.

Approval of the Supreme Court was required for this change, because IC 33-25-3-6 provides:

The judicial opinion or decision in each case determined by the court of appeals shall be reduced to writing. Reports of these opinions and decisions may be published and distributed in the manner prescribed by the supreme court.
The Order of the Supreme Court, dated August 21, 2006, provided:
After due consideration, this Court has determined that the request shall be GRANTED, provided, however, the availability of Court of Appeals' not-for-publication memorandum decisions" on the Internet shall not in any way later or change their status as a "not-for-publication memorandum decision" for purposes of Appellate Rule 65.
Justices Sullivan and Boehm concurred in the Order. Chief Justice Shepard, and Justices Dickson and Rucker, according to the Order:
concur in result in the interests of comity, notwithstanding their belief that the posting of not-for-publication opinions on the Internet is unwise.
The posting of all the opinions of the Court of Appeals online has been a success for those wishing ready access to the work of the Court. It has also proven a success to the members of the Court of Appeals -- the change allowed the public to see that in the past they had only been viewing the tip of the iceberg insofar as the work product of the Court was concerned.

Two questions to consider:

After two more than four years of increased familiarity with NFPs, this may be the time to consider two related questions:

Taking a broad view, there appear to be four general categories:

Looking specifically at Indiana's Rules:

Here is Appellate Rule 65, Opinions and Memorandum Decisions, subsection (D):

D. Precedential Value of Not-For-Publication Memorandum Decision. Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.

What is a "memorandum" opinion?

A casebook, Appellate Courts [full cite to be added later], states:

We use the term "memorandum opinion" to indicate a short opinion that is significantly different from the traditional appellate opinion, which is usually more lengthy and involved. We refer to the latter as a "full opinion."
Later the casebook quotes from an essay [full cite to be added later] distinguishing between memorandum and full opinions to the effect that a memorandum opinion must convey at least (1) the identity of the case, (2) the ultimate disposition, and (3) the reasons for the result. A full opinion, on the other hand, would set forth the facts and procedural history, and spell out the reasoning as well as the reasons.

Is there any distinction in Indiana between FP and NFP, other than the stamp at the top of the opinion?

Prior to the retention election in 2006, the ILB published the following Q & A it had posed to the COA judges running for retention:

Question #2. NFP opinions.

Q. Under App. Rule 65, Court of Appeals opinions are deemed “Not for Publication” unless the case establishes, modifies or clarifies a rule of law; criticizes existing law; or involves a legal or factual issue of unique interest or substantial public importance. Recently, the Court of Appeals decided to make its NFP opinions more accessible. For many of us, that meant seeing for the first time how much work the judges on the Court of Appeals actually put out each week. What we had seen up to then was merely “the tip of the iceberg.” What surprised many of us was that other than the NFP stamp in the upper left hand corner of the first page, the NFP are no different than the “published” opinions. These are not one-page “Affirm” or “Reverse” opinions. They are full-blown opinions, sometimes split, sometimes reversing the lower court. Who makes the “NFP” determination in each case? Is it the judge who writes the opinion? How does the process operate?

A. The Court of Appeals of Indiana is one of a few intermediate appellate courts that decide every case by a full written opinion decided by a three-judge panel. You are right that there is no significant difference between an opinion that is designated for publication and one that is not. Usually, no decision is made regarding publication until after the opinion is completely drafted. This results in the quality of the not for publication opinions being substantially the same as the for publication opinions.

In some cases, we will know from the outset that a particular case will be decided by a published opinion because it clearly falls within the criteria in the rule. In other cases, the decision is made after the opinion is written and circulated to the panel. In all cases, the writing judge makes a recommendation to the other members of the panel regarding publication.

If the recommendation is to publish the opinion, the recommendation will be made by a publication memorandum setting out the reason publication is recommended with reference to the appropriate provision of App. Rule 65.

Sometimes, one of the other members of the panel will suggest publication for a case that the writing judge did not originally designate as a for publication case. We occasionally have a situation where somebody writing a dissent feels that a case should be published because of the nature of the opinion expressed in the dissent. Also on occasion, a member of the Court who is not on the panel will suggest publication. The decision to publish or not publish is made by a majority vote of the panel.

Who should make the designation?

With regard to the decision to designate an opinion as NFP, Rule 65(A) provides:

A Court of Appeals opinion shall be published if the case:

(1) establishes, modifies, or clarifies a rule of law;

(2) criticizes existing law; or

(3) involves a legal or factual issue of unique interest or substantial public importance.

One might wish that the basis of the panel's decision was made available along with the opinion.

Although Rule 65(B) provides that: "Within thirty (30) days of the entry of the decision, a party may move the Court to publish any not-for-publication memorandum decision which meets the criteria for publication," I'm told that such motions are not automatically granted.

With regard to the designation in general, I ended a Dec. 6, 2006 ILB entry on the status of NFPs with this:

I was struck by this statement by Scott E. Gant: "Whether an opinion of an appellate court has or lacks precedential value should be a function of what the opinion contains rather than the label attached to it." From the abstract to Gant's article in the Boston College Law Review:
This article argues the notion that judges can and should determine an opinion's precedential value at the time they issue it is based upon a flawed and outdated view of how the law develops. Whether an opinion has made "new law" or is otherwise significant is a judgment best made with the benefit of time, and with input from lawyers, litigants, and other judges.
Howard Bashman of How Appealing is to be thanked (yet again) for spotting this article. (For more, including links, start at this ILB entry from Oct 5th.)

Posted by Marcia Oddi on Monday, January 17, 2011
Posted to Indiana Courts

Ind. Gov't. - "Everybody wants reform but hardly anybody wants to be reformed"

That is the CNHI Indiana Statehouse Bureau's Maureen Hayden's conclusion so far into this, her first session observing the Indiana General Assembly. Here are a few quotes from her weekly "State of the Statehouse" column today in the Terre-Haute Trib-Star:

I haven’t been covering the Statehouse long enough to come to many conclusions, but I’ve been here long enough to figure out one thing: Everybody wants reform but hardly anybody wants to be reformed. * * *

In his State of the State speech, Daniels declared: “We say tonight, whatever course others may choose, here in Indiana we live within our means.” That section of the speech got applause.

But who really wants to do that?

Living within our collective means these days means giving up a range of things we once took for granted, from lattes to pay raises.

I want somebody else to live within their means; I want to live wildly out of mine. * * *

They [the General Assembly] also have to decide what they [want] to do with the rest of Daniels’ wish list, including the deep downsizing of local government.

As he noted in his State of the State address, he wants township government gone, along with most county commissioners. Those two proposals alone would get rid of more than 4,000 county and township positions. But who wants to be reformed right out of a job?

So here’s the other thing I’ve figured out since I arrived at the Statehouse: There’s nothing about this legislative session that’s going to be easy.

Posted by Marcia Oddi on Monday, January 17, 2011
Posted to Indiana Government

Ind. Gov't. - Targeting townships

Updating this ILB entry from Jan. 15th, the Indianapolis Star yesterday published an editorial headed "Wasted Dollars, Broken Trust." It begins:

Led by The Indianapolis Star, 15 Indiana newspapers launch an editorial campaign to demand that the General Assembly finally eliminate outdated township government in the name of efficiency.

Amid recession, and with property tax caps in place, cities and counties across Indiana have slashed essential services such as police and fire protection. Schools have laid off teachers, increased class sizes and dropped academic programs. Libraries have closed branches and reduced hours of operation.

Yet, one layer of local government -- townships -- continues to hoard large and growing cash reserves, more than $200 million in combined stockpiles as of last year.

State auditors in recent years also have uncovered gross mismanagement and outright corruption in many of Indiana's more than 1,000 townships.

Townships often operate like a family business, with close relatives pulling down salaries and benefits as trustees, clerks and advisory board members. The rampant nepotism enables the mismanagement of public money to flourish.

All of it unfolds largely outside of the public's view. Most trustees stand unopposed for re-election. Township boards in many cases are unable or unwilling to scrutinize how efficiently money is spent. State auditors eventually have uncovered much of the mismanagement and corruption, but months or years after the fact.

It doesn't have to be this way. Most states -- 60 percent -- operate without townships, and Indiana is the only state where townships are universal throughout the state.

To promote better stewardship of taxpayers' money and champion more transparency in government operations, 15 Indiana newspapers, led by The Indianapolis Star Editorial Board, are today launching an editorial campaign to demand that the General Assembly transfer township governments' responsibilities, chiefly poor relief and fire protection, to the county level.

In addition, the Star's team of Tim Evans and Mark Alesia had a lengthy front-page story Sunday headed "Despite outcry, townships still stashing cash: During a span of 2 years, the government bankroll grew by $87 million, and 91,983 fewer needy Hoosiers received aid," along with supplemental stories and an interactive database.

This Star database is different from those created by the Bloomington H-T. Although these databases and yesterday's introductory story are available, the remainder of the stories yesterday and this week are behind the H-T paywall.St

Posted by Marcia Oddi on Monday, January 17, 2011
Posted to Indiana Government

Ind. Law - "Big changes appear likely in state criminal law: A booming prison population has officials reconsidering how Indiana sentences offenders to serve time"

Douglas Walker of the Terre Haute Trib-Star had this story Jan. 16th. A quote:

The Indiana Department of Correction's population increased 41 percent from 2000 to 2008, with the total number of incarcerated Hoosiers increasing from 20,125 to 28,322.

The number of state prisoners approaches the total population of the city of Marion, or the combined populations of three county seats in East Central Indiana - New Castle, Winchester and Hartford City.

[Delaware County Prosecutor Jeffrey Arnold] cites two reasons for the prison population boom. One is frequent sentence enhancements enacted by the legislature over the past 20 years, with "not one" reduction in sentence standards by politicians who fear being "targeted as soft on crime."

"Couple that with (increased) drug use and you've got an explosion," he said.

Among the changes proposed in drug-related cases is the distance a crime has to take place from a school, public park or family housing project to qualify as a Class A felony, which now carries a non-suspendable minimum sentence of 20 years.

That distance standard is now 1,000 feet. If the new legislation is enacted, it would decrease to 200 feet.

And judges would have the option of placing an offender guilty of a Class A felony in an alternative sentencing program that would keep them out of prison.

Arnold said whatever changes are made in the system, his office needs to retain the option of pursuing incarceration for those who commit non-violent crimes, such as theft and forgery, on a repeated basis.

"I see that as someone who needs to be locked up at some point," he said.

Posted by Marcia Oddi on Monday, January 17, 2011
Posted to Indiana Law

Ind. Law - Bill to repeal Indiana inheritance tax introduced

From a story yesterday in the Fort Wayne Journal Gazette, reported by Niki Kelly:

[Sen. Jim Banks, R-Columbia City] is getting some attention for a bill that would phase out Indiana’s inheritance tax.

Only six states levy an inheritance tax, with the rate depending on the relationship of the heir to the deceased.

The tax generates about $135 million annually, but Banks doesn’t believe he needs to identify replacement revenue for the state.

“We have scaled back government dramatically, and revenues are going up, so we can absorb this,” he said.

So far, a number of other senators have signed on as co-authors to Senate Bill 148.

But Senate Appropriations Chairman Luke Kenley, R-Noblesville, said approval of the bill isn’t likely unless someone finds a way to replace the money. He did concede, though, that the change might stop some Hoosiers from moving to Florida to avoid the tax.

Posted by Marcia Oddi on Monday, January 17, 2011
Posted to Indiana Law

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, January 16, 2011:

From Saturday, January 15, 2011: From late Friday afternoon, January 14, 2011:

Posted by Marcia Oddi on Monday, January 17, 2011
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/17/11):

Thursday, January 20th

Next week's oral arguments before the Supreme Court (week of 1/24/11):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 1/17/11):

Tuesday, January 18th

Wednesday, January 19th

Thursday, January 20th

Next week's oral arguments before the Court of Appeals (week of 1/17/11):

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, January 17, 2011
Posted to Upcoming Oral Arguments

Sunday, January 16, 2011

Ind. Decisions - Search transfer lists for the past 7 years

You may now search 7 years of transfer lists via a special ILB search engine, which searches a database the ILB has created. Access it here.

To test it, I searched for "Roger Brown." I put it in quotes because not only are there other cases involving a party named "Brown," but there is also a Judge Brown on the COA. My search turned up both the 12-18-09 list where Brown was granted transfer and the 5-28-10 list where transfer was vacated.

Posted by Marcia Oddi on Sunday, January 16, 2011
Posted to Indiana Transfer Lists

Courts - "Kentucky judges can grant out-of-state minors permission for abortions, appeals court rules"

Andrew Wolfson has this story today in the Louisville Courier Journal. Some quotes from the lengthy story:

Minors from other states may ask Kentucky judges to give them permission to have abortions without their parents' knowledge or consent, a state appeals court has ruled.

In a 2-1 ruling last week that was sealed, the majority said it was compelled to make the ruling despite “significant reservations” about allowing Kentucky judges to make such important decisions about girls from other states.

The state appellate court reversed Jefferson District Court Judge David Bowles, who ruled he had no jurisdiction to consider an Indiana girl's petition under Kentucky's bypass law.

The Kentucky Court of Appeals ruling was issued confidentially under a state law and a special state Supreme Court rule that allows girls to appeal decisions anonymously. The Courier-Journal obtained a copy of the decision. * * *

Defenders of abortion rights say the state court of appeals decision upholds the right of Americans to travel for medical care, and the constitutional right to abortion.

“Your federal constitutional rights aren't abandoned when you travel into another state — they come with you,” said Bebe Anderson, senior counsel for the New York-based Center for Reproductive Rights. * * *

The state Court of Appeals decision was issued confidentially under a portion of the state's bypass laws that guarantees minors a right to an “anonymous” appeal of adverse decisions. A state Supreme Court special rule also says that appeals are to be handled in a confidential manner.

The Courier-Journal acquired a copy of the appeals court's ruling, and confirmed that it was issued Tuesday. The minor involved is identified only by her initials.

In the sharply divided opinion, Chief Judge Jeff Taylor of Owensboro and Judge Michelle Keller of Covington said it was a difficult decision in part because they knew it would invite “forum shopping,” in which a girl who is refused by a judge to get an abortion in her home state need only cross state lines to try to obtain permission in Kentucky.

However, the majority said the wording of Kentucky's law couldn't be clearer — it says “every minor” has the right of access to a bypass hearing in district or circuit court and says nothing about that right being limited to residents. * * *

Louisville attorney Amelia Adams, who has fought for abortion rights for decades and represents many minors in bypass hearings, said “abortion isn't an easy subject for anybody,” but that there are “times in a woman's life when it is the only choice.”

She said that the “privileges and immunities” clause of the Constitution specifically ensures that an out-of-state resident enjoys the same privileges as one in the state in which she happens to find herself, and that the U.S. Supreme Court has upheld that clause in a long series of civil rights cases dating back to the 1950s.

Adams also said that as a practical matter, many minors in Southern Indiana come to Kentucky for abortions because the nearest clinics otherwise would be in Indianapolis or Chicago, and there is no reason they shouldn't be able to petition for judicial consent in Kentucky. * * *

The impact of the opinion is uncertain because it wasn't issued publicly and won't be published in law books or by online legal services.

But Chief Jefferson District Judge Sean Delahanty said in an interview that members of his court had discussed the issue previously and might find out about the ruling if it is circulated around the courthouse.

Adams said: “They'll find out, trust me.”

ILB comments: I've highlighted the provisions most surprising to me. The opinion protects the minor's confidentiality by identifying her only by initials and presumably redacting other identity information, but is appears that no one can read the ruling and no one would have known of its existence but for the LCJ's having somehow obtained a copy.

Posted by Marcia Oddi on Sunday, January 16, 2011
Posted to Courts in general

Environment - APCB to consider final adoption of rule to regulate outdoor wood-fired boilers

Updating a very long list of ILB entries, extending back at least five years, on outdoor wood-fired boilers and the efforts to regulate them, the final adoption of a rule to regulate outdoor wood-fired boilers is on the agenda of the Feb. 2, 2011 meeting of the Air Pollution Control Board. Here is the Fact Sheet for the proposed rule. Here are the other documents in the Board packet for the Feb. 2nd meeting.

Posted by Marcia Oddi on Sunday, January 16, 2011
Posted to Environment

Ind. Courts - Indiana Judicial Center reports on matters of interest to the judiciary

As in the last few years, the Indiana Judicial Center has prepared summaries of bills of interest to the judiciary heard in committee last week, which was the first week of committee hearings in the 2011 session.

Among the summaries, SB 67, which makes a number of changes to AOPA, and SB 74, concerning guardianship, prepared by the probate code study commission.

Posted by Marcia Oddi on Sunday, January 16, 2011
Posted to Indiana Courts

Ind. Courts - "Kiely stepping up to lead, expand Vanderburgh drug court services"

Mark Wilson's story in the Evansville Courier & Press begins:

After nearly 10 years overseeing Vanderburgh County's Drug Court, Judge Wayne Trockman will hand over the reins to fellow Superior Court Judge David Kiely later this month.

Kiely is also spearheading the creation of a Veterans Treatment Court, a first for Indiana, although similar courts are slowly beginning to catch on in other communities in the nation.

Posted by Marcia Oddi on Sunday, January 16, 2011
Posted to Indiana Courts

Ind. Decisions - 7th Circuit hears oral argument re "whether newspapers have a constitutional right to stream entire high school sporting events online"

Michael Tarm of the AP has this story in the Washington Post Jan. 14, 2001. A sample:

The case pits community newspapers against the association that oversees high school sports in Wisconsin. Fans in many states rely on community newspapers for news about high school teams, and the newspapers say they need easy, unencumbered access to sporting events to provide that coverage. But the association says it can't survive if it can't raise money by signing exclusive contracts with a single video-production company for streaming its tournaments.

The newspapers argued Friday before the 7th Circuit Court of Appeals that the First Amendment's guarantee of freedom of press should enable them to put such publicly funded events online as they see fit, free of charge.

The case began in 2008, when the Wisconsin Interscholastic Athletic Association sued The Post-Crescent of Appleton after it streamed live coverage of high school football playoff games. After a U.S. District judge sided with the association last year, saying its exclusive deal with a video production company didn't impinge on freedom of the press, the newspaper's owner, Gannett Co., and the Wisconsin Newspaper Association appealed.

Media lawyer Robert Dreps argued Friday that the newspaper's streaming of the game was the equivalent of reporting on the event, but Judge Diane Wood said she was "troubled by that."

The athletic association's attorney, John Skilton, argued that its deal with the video production company didn't prevent newspapers from reporting on the game. Reporters can still attend games, write critical comments about them and even display short clips of video they deem newsworthy, he said - they just can't stream entire games.

A quote from later in the story:
Wood responded with bluntness uncommon in the typically sedate appellate court when Dreps argued the athletic association should be viewed as an extension of the government - in part because it operates within one state.

"That's crazy," she said, drawing glances from her colleagues.

The case is Wisconsin Interschol v. Gannett Company, Inc. You can listen to the oral argument here.

Posted by Marcia Oddi on Sunday, January 16, 2011
Posted to Indiana Courts

Law - Cost of indefinite detention of sex offenders shocks Virginia lawmakers

The ILB has had a number of entries on the high cost of civil commitment of sex offenders. The most useful may be this entry from June 23, 2010.

Bill Sizemore of The Virginian-Pilot had this story Jan. 15, 2011. Some quotes:

Lawmakers expressed shock Friday over the exponentially rising cost of a program to keep some sex offenders locked up after they complete their criminal sentences.

The annual operating cost of Virginia's Sexually Violent Predator Program is projected to hit $32 million next year - more than a tenfold increase in eight years.

The General Assembly created the program in 1998 to keep sex offenders deemed likely to re-offend off the streets after they finish their criminal sentences. The process is known as civil commitment. * * *

The panel grilled Olivia Garland, deputy commissioner of the state Department of Behavioral Health and Developmental Services, about how and why the program has grown so dramatically.

Initially the pool of offenders was limited to four crimes: rape, forcible sodomy, object sexual penetration and aggravated sexual battery. In 2006, however, the Assembly expanded the list of crimes to 28.

In addition, the state switched to a different screening test, which lowered the threshold for commitment.

As a result, Garland said, the number of offenders coming into the program, initially about one a month, now averages six to eight a month.

There are 252 offenders in the program. So far, 11 have been released.

The average annual operating cost is $91,000 per resident. That's low compared to the cost in some of the other 19 states with similar programs, Garland said. In New York, for instance, the per-resident cost is $175,000.

A big factor in the cost is the high staffing ratio required for such a program, she said: roughly two staffers for every resident.

Garland cited several reasons why Virginia's program is growing faster than those in many other states.

Unlike most states, Virginia commits mentally ill offenders and those who have been judged "unrestorably incompetent to stand trial."

Also, most states require that an offender show a history or pattern of sexually dangerous behavior before becoming eligible for commitment. In Virginia, it takes only one offense.

Posted by Marcia Oddi on Sunday, January 16, 2011
Posted to General Law Related

Ind. Gov't. - A planned day at the races for then-Indiana Utility Regulatory Commission Chairman David Lott Hardy and his wife, and NIPSCO officials

A lengthy story today in the NWI Times, written by Keith Benman, reports:

A day after Indiana's top utility regulator approved an order authorizing NIPSCO to hike electric rates, a director of the utility's parent company sent a thankful e-mail inviting him to take in thoroughbred farms and the races in Kentucky Bluegrass country.

In the next two weeks, the invitation was firmed up with offers of a stretch limo, a racetrack suite and dinner at an exclusive Lexington restaurant for then-Indiana Utility Regulatory Commission Chairman David Lott Hardy and his wife. * * *

Consumer groups already have been outraged by the clubby relationships Hardy cultivated with executives at Duke Energy. Those relationships first were reported by the Indianapolis Star in October when it published e-mails between Hardy and then-Duke Indiana President Michael Reed, a former IURC executive director.

But the newly discovered e-mails point to Hardy weaving an even wider web of relationships within the industry. NIPSCO is one of the largest utilities in the state, with 457,000 electric and 712,000 natural gas customers. Its parent, NiSource Inc., has 3.8 million energy customers stretching from the Gulf of Mexico to New England.

In the e-mails, Hardy also suggests inviting Duke Indiana President Reed to attend the outing and Foster obliges.

"This is all about (Hardy) trying to live the lifestyle of a CEO when he's actually the chief regulator," said Kerwin Olson, utility campaign organizer for the Citizens Action Coalition. "How can you be independent when you are in constant communication and wined and dined by those you regulate?" * * *

The last e-mails in the exchange include Reed suggesting an invite be extended to West Virginia Public Service Commissioner Jon McKinney. In a subsequent e-mail, Reed writes that Hardy has spoken to the commissioner and that he will be joining them for the horse farm tour and the races.

In response to a Times inquiry, the West Virginia Public Service Commission said in an e-mailed response that Commissioner McKinney initially understood he and his wife would be getting together with Hardy and his wife for dinner and at Keeneland. When McKinney learned that utility industry officials would be present he turned down the invitation.

[NiSource spokesman Karl Brack] said Hardy, Reed, Foster and their wives never got together for their planned outings Oct. 28 and 29. By that time, Hardy had been fired as IURC chairman and Reed's actions were being investigated by Duke Energy.

Posted by Marcia Oddi on Sunday, January 16, 2011
Posted to Indiana Government

Saturday, January 15, 2011

Ind. Gov't. - Comprehensive survey of Indiana townships starts Sunday

Enterprising reporters at the Bloomington Herald-Times have created comprehensive databases related to Indiana township government. Take a look at this page, giving information about the databases and the upcoming stories. Be sure to watch the video. (The databases appear to be available to all; the stories undoubtedly will be accessible online only to H-T subscribers.)

Posted by Marcia Oddi on Saturday, January 15, 2011
Posted to Indiana Government

Friday, January 14, 2011

Ind. Decisions - Transfer list for week ending January 14, 2011

Here is the Clerk's transfer list for the week ending January 14, 2011. It is two pages (and 17 cases) long.

One transfer was granted for the week ending Jan. 14, 2011:

Another opinion, Lawane Chaney, et al. v. Clarian Health Partners, Inc., a NFP, is denied transfer with the following vote:
Denied - Dickson, Sullivan, and Rucker, JJ., concur. Shepard, C.J., and David, J., concur, and would also consider a petition for damages, including attorney fees, pursuant to Appellate Rule 66(E).
Chaney was a Feb. 10, 2010 NFP opinion - see the ILB summary here.
__________

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 January 11, 2011 list.

Nearly 7 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 Friday, January 14, 2011
Posted to Indiana Transfer Lists

Ind. Courts - "Mistrial declared when jurors read paper"

From KICKS96, this story that shows it doesn't take a cellphone for jurors to get in trouble:

(Connersville, IN) A Fayette County trial that was weird from the start took another strange twist Wednesday.

Trial on drug-related charges against Bruce Allen began this week in Fayette Superior Court, even though Allen was not there. Allen has been on the loose after begin arrested back in August of 2009. It’s extremely rare to hold a trial without the defendant in the courtroom.

During every trial, the judge instructs the jury not to read reports of the trial in the newspaper. But, Wednesday, several jurors admitted that they did just that.

It forced Judge Ron Urdal to declare a mistrial. Prosecutors say they’ll re-try the case. Fayette County has spent $1,200 to try the case, not counting the time of all the court officials involved.

Posted by Marcia Oddi on Friday, January 14, 2011
Posted to Indiana Courts

Environment - "U.S. moving forward with lake evictions: 2 homes still occupied despite repeated extensions, threats"

From the Jan. 12, 2011 Gary Post Tribune, a story by Teresa Auch Schultz that begins:

U.S. prosecutors are moving forward with two cases to evict people who the government says have outstayed their welcome at the Indiana Dunes National Lakeshore.

According to court records, the federal government is asking for summary judgment against Ann and George Bagnall and Deborah Pavel, who continue to live in their Beverly Shores homes despite having been ordered to move out last year.

The Bagnalls' home was in an area that the U.S. government started buying in 1966 to add to the Indiana Dunes National Lakeshore. The families were allowed to stay in their homes for a period of time. The deadline was extended several times so that they didn't have to move out for almost 40 years.

However, the extensions ended and the last 20-some families had to move out Sept. 30. The Bagnalls have been fighting the eviction, saying they were forced to sell their home and the government didn't pay them enough for the house. The government paid them $186,750 in 1985, according to records.

The government filed for eviction in November and now wants the judge to rule in its favor. According to the motion, the Bagnalls are still living at the house, although neither the national park nor George Bagnall would confirm whether they are still there.

Here is an earlier story, from the Nov. 14, 2010 Michigan City News Dispatch, reported by Deborah Sederberg. A few quotes:
BEVERLY SHORES — The U.S. Attorney for the Northern District of Indiana has filed a lawsuit seeking an eviction notice for a Beverly Shores couple. The complaint claims Ann and George Bagnall, who own a home overlooking Lake Michigan on the western edge of Beverly Shores, should have been out of their home on Sept. 30.

According to the complaint, on Oct. 6, 1985, the Bagnalls “delivered a deed conveying real property to the Indiana Dunes National Lakeshore.”

For the property, the park service paid $186,750, the suit notes. * * *

When the Indiana Dunes National Lakeshore was established by Congress in 1966, the National Park Service began to buy property within its boundaries.

The Bagnalls, like others whose property was purchased by the park service, had an opportunity to have what is called a life estate, said National Lakeshore Superintendent Costa Dillon. Under that agreement, they would have been permitted to remain in their home until the end of their lives. “We have four life estates in the park,” he noted. The various permits expired at different times, he said. Eight permits remain in place for residents who live on park property in Lake County.

Posted by Marcia Oddi on Friday, January 14, 2011
Posted to Environment

Ind. Gov't. - "Town Council won't appeal ruling in Burns Harbor vs. Burns Harbor case"

I started covering this story on Oct. 14, 2010 -- I was interested in the attorneys' fee aspect. (You may find subsequent stories on this list.)

Today Paulene Popard reports in the Chesterton Tribune in a story that begins:

Following extended discussion, the Burns Harbor Town Council voted 3-2 Wednesday not to appeal a judge’s ruling that says the town has no standing to challenge the controversial C.R.England zoning decision.

Council members Mike Perrine, Toni Biancardi and president Jim McGee rejected an appeal; Cliff Fleming and Louis Bain voted in favor.

McGee said to carry the appeal forward at all levels to its conclusion could cost up to $100,000 with the first round about $15,000. Having brought the recent challenge in Porter Superior Court is estimated to cost up to $30,000 for special attorneys Ice Miller LLP of Indianapolis, who have yet to submit a claim.

Last night the council approved a $5,022 claim for special attorney Brian Hurley, who defended the town Board of Zoning Appeals against the Town Council’s challenge of the BZA’s split Aug. 24 decision allowing Engand Trucking to build a new 250 semi-truck parking lot and guardhouses west of Indiana 149 south of Tech Drive.

Hurley and England attorney Terry Hiestand successfully argued that the Town and Town Council didn’t have standing to reverse the BZA decision because neither will suffer any specific injury other than the community as a whole.

Fleming strongly disagreed; he said the town’s safety and future is at stake.

Fleming said Burns Harbor stands to invest hundreds of thousands of dollars, if not millions, to reconfigure Old Porter Road at Indiana 149 because of the huge influx of trucks the England parking lot will bring. Utah-based England’s Midwest regional truck terminal is located on Tech Drive now.

Fleming said the new appeal, which has to be filed by Feb. 2, needs to address the merits of legal arguments not even considered by Superior Court/Circuit Judge Mary Harper because the town’s standing claim was rejected.

Fleming said it’s a matter of paying legal fees now or rebuilding Old Porter Road later.

Said Bain, “I won’t sleep if we let a bad decision stand. I’m wholeheartedly convinced (if England can build) it will negatively impact the town.”

McGee, too, said the town’s larger arguments --- like the council, not the BZA, should have heard England’s petition --- were not addressed. Neither was the standing of two residents and 11 businesses as co-plaintiffs including Fleming’s BH LLC as developer of The Village in Burns Harbor subdivision. To-date, the co-plaintiffs have not contributed to legal fees but may pursue the Harper appeal on their own.

McGee said an Ice Miller attorney told him the success of a new appeal to overturn Harper’s ruling “is a crap shoot, toss of a coin. I say it’s a $15,000 coin.”

Perrine and McGee said they thought there was agreement among members that if the Harper appeal failed, that would end the town’s legal involvement. Fleming said he never agreed to that.

Posted by Marcia Oddi on Friday, January 14, 2011
Posted to Indiana Government

Ind. Decisions - One Indiana opinion (the "stun belt" case) and two others of interest from the 7th Circuit today

In Stephenson v. Wilson (ND Ind., Springmann), the brief Order reads:

On July 23, 2010, petitioner-appellee filed a petition for rehearing with suggestion for rehearing en banc, and on November 8, 2010, respondent-appellant filed an answer to the petition. The panel voted unanimously to deny panel rehearing, and a majority of the judges in active service have voted to deny the petition for rehearing en banc. The petition is therefore DENIED.
Circuit Judges Ilana Diamond Rovner, Ann Claire Williams and David F. Hamilton voted to rehear the appeal en banc in a 22-page dissent authored by J. Rovner that begins:
The Supreme Court’s jurisprudence makes clear that imposing a visible restraint on the accused is inherently prejudicial to his right to a fair trial. John M. Stephenson was required to wear a stun belt during the guilt phase of his capital trial without any inquiry by the judge as to whether such a restraint was justified nor any record that might have supported such a finding. Although the stun belt was no doubt intended to be a discreet restraint, the belt underneath Stephenson’s clothes was, in fact, readily visible to the jury and anyone else in his purview. My colleagues have concluded that Stephenson has not shown that he was harmed by his attorney’s unexplained failure to object to the stun belt and thus cannot demonstrate preudice for purposes of his claim that he was deprived of the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 691-96, 104 S. Ct. 2052, 2066-69 (1984). I believe their analysis overlooks the inherent, unquantifiable prejudice of a visible restraint and is otherwise inconsistent with the Supreme Court’s decisions on this subject. * * *

[and concludes] Stephenson is entitled to a new trial, as Judge Springmann concluded. On this record, which reflects a total absence of case-specific evidence demonstrating a need for Stephenson to be restrained in the courtroom, there can be no dispute that being made to wear a readil yvisible stun belt deprived Stephenson of due process. As the Indiana Supreme Court found, the failure of Stephenson’s trial counsel to object to the restraint was unsupported by any valid strategic reason and instead is explained solely by counsel’s ignorance of the case law prohibiting visible restraints except in extraordinary circumstances. A single failing by one’s counsel will support relief under Strickland when the error is both egregious and harmful to the defendant, Murray v. Carrier, supra, 477 U.S. at 496, 106 S. Ct. at 2649, as it was here. The inherently prejudicial nature of visible restraints, coupled with the lack of overwhelming evidence of Stephenson’s guilt, adequately demonstrates that Stephenson was prejudiced by his attorney’s failure to object to the stun belt. The panel’s conclusion that Stephenson’s claim fails for want of more concrete proof that he was harmed by the unobjected-to stun belt is inconsistent with the Supreme Court’s recognition that such evidence is impossible to marshal and unnecessary given the inherently prejudicial nature of visible restraints.

The court has remanded this case to the district court for further proceedings, and there remains the possibility that the district judge might grant Stephenson relief as to the penalty phase of the trial, during which he also wore the stun belt. But whatever relief Stephenson might obtain as to the penalty phase will not address the prejudice he experienced vis-à-vis the jury’s assessment of his guilt. The proper course would be for this court to affirm the district court’s decision.

ILB: Page 22 of the opinion contains photos, but I am unsure of their significance.

In re: Trans Union Corporation Privacy Litigation, an opinion by Judge Posner, begins:

It is a curiosity of class action litigation that often there is greater ferocity in combat among the class lawyers over the allocation of attorneys’ fees than there is between the class lawyers and the defendants. The contest among the lawyers is a zerosum game. But the contest between them and the defendants is a positive-sum game because the class lawyers are naturally very interested in the fee component of any settlement, while the defendants care only about the size of the settlement, including fees. So the lawyers may be willing to settle for less for the class if the defendants will help them obtain a generous fee award, and the defendants will be happy to help them if the sum of the fee award and the relief granted to the class is smaller than it would be if the class lawyers pressed for more generous relief for the class.
Christina Jones v. Craig Clark and Donn Kaminski is a 17-page opinion by Judge Wood that is worth reading. Jones' offense appears to have been "reading meters while black." Here are some quotes:
Christina Jones is an employee of Commonwealth Edison (“ComEd”), which is the major electricity provider in the Chicago area. One day, while working in her job as a meter reader in Braidwood, Illinois, she was stopped and then arrested by Officers Craig Clark and Donn Kaminski. The officers were responding to a report that a “person of color” was taking pictures of houses in Braidwood. (Jones is an African-American, and Braidwood is almost entirely white. According to the U.S. Census Bureau, Braidwood’s population in 2000 was over 97% white. See http://www.census.gov.) Jones sued the officers, alleging among things that the stop and arrest violated her Fourth Amendment rights. The defendant officers took the position that no constitutional violation had occurred because they reasonably suspected that Jones was involved in criminal activity at the time of the stop and they had probable cause to arrest her. The parties outlined their positions in cross-motions for summary judgment, and Officers Clark and Kaminski added that they were entitled to qualified immunity from suit, which allows public officials to avoid trial “ ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Mitchell v. Forsyth, 472 U.S. 511, 517 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The district court concluded that factual disputes required a trial on the merits and similarly made it impossible to resolve the immunity question. In this appeal, Officers Clark and Kaminski urge that the undisputed facts entitle them to immunity. We conclude that the district court correctly saw that this case is not suitable for summary disposition, and we thus affirm.

Posted by Marcia Oddi on Friday, January 14, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Orlando Quezare v. Byrider Finance, Inc. , a 9-page opinion, Judge Crone writes:

Orlando Quezare was employed by Byrider Finance, Inc. In addition to his hourly wage and overtime compensation, Quezare received bonuses pursuant to Byrider’s bonus program. Following Quezare’s termination, he filed suit against Byrider, alleging that the bonus payments were “wages” for purposes of the Wage Payment Statute and that Byrider violated the Statute by failing to pay him his bonuses within ten days of the date they were earned. The trial court found that the bonus payments were not wages and granted Byrider’s summary judgment motion. Quezare appeals. Finding that the bonuses were not wages for purposes of the Wage Payment Statute because they were not directly related to the amount of time Quezare worked and were not necessarily paid regularly, and because the bonus program was discretionary, we affirm the trial court.
In Indiana Spine Group, P.C. v. International Entertainment Consultants , a 9-page opinion, Judge Crone writes:
Indiana Spine Group, P.C. (“Indiana Spine”), provided medical services to an employee of International Entertainment Consultants (“Consultants”). When Consultants’ insurer failed to pay the entire bill, Indiana Spine filed an application for adjustment of claim with the Worker’s Compensation Board (“the Board”). Consultants moved to dismiss the application, arguing it was barred by the two-year statute of limitations found in Indiana Code Section 22-3-3-3. A single hearing member granted the motion, and the full Board affirmed. We conclude that Indiana Code Section 22-3-3-3 does not apply to Indiana Spine’s claim; therefore, we reverse and remand for further proceedings. * * *

Consultants argues that Pilot was wrongly decided and that Indiana Code Section 22-3-3-3 does apply to a medical service provider’s claim. * * *

Indiana Spine argues that because the Act is silent as to the appropriate statute of limitations, we should look to Indiana Code Chapter 34-11-2, which establishes the statutes of limitation that are generally applicable in civil cases. * * * [N]either Consultants nor the Board cited any authority establishing that the Board is prohibited from considering general principles of civil law when the Act fails to provide the answer to a legal issue. Presumably, the legislature enacted the general statutes of limitation for the very purpose of supplying a statute of limitation when one has not otherwise been provided by a more specific statutory scheme.[1] * * *

Indiana Spine argued to the Board that either the six-year statute of limitation for actions on accounts or the ten-year statute of limitation for actions that are not limited by any other statute should apply. Ind. Code §§ 34-11-1-2 and 34-11-2-7. As Indiana Spine’s claim would be timely under either of those statutes of limitation and no argument has been advanced for the application of any other statute of limitation, we conclude that the Board erred by dismissing the application. Therefore, we reverse and remand for further proceedings.
______
[1] Indiana Spine notes that Senate Bill 559 in 2009 would have established a two-year statute of limitation running from the last date that the provider provides services to an injured employee; however, that bill did not pass. We decline to speculate on the legislature’s intent based on the content of a bill that failed to pass.

Alexander Orta v. State of Indiana - "Concluding that the trial court acted within its discretion with regard to each of Orta's alleged errors, that the trial court properly applied the Indiana Supreme Court's opinion in Sanchez, and that Orta's sentence is not inappropriate, we affirm."

NFP civil opinions today (2):

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

Jay F. Vermillion v. Indiana State Prison Disciplinary Body and Westville Control Unit (NFP)

NFP criminal opinions today (4):

Christopher Brian Neal v. State of Indiana (NFP)

Nanci Lacy v. State of Indiana (NFP)

Gregory Withers, Jr. v. State of Indiana (NFP)

Douglas P. Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 14, 2011
Posted to Ind. App.Ct. Decisions

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

Updating this list of earlier entries on SB 105, beginning with this lengthy ILB entry on Dec. 18, 2010, a story today in the Anderson Herald Bulletin, reported by Maureen Hayden, CNHI Statehouse Bureau, looks at the provision in the bill where:

[A] local government unit or one of its major creditors could petition the state to appoint an emergency manager to take over the powers of the local executive and the fiscal branch of that government unit.

The emergency manager could impose what the head of the state Office of Management and Budget calls “tough love” – stringent cost-cutting that include layoffs and contract re-negotiations.

OMB director Cris Johnston worked with [State Sen. Ed ] Charbonneau on the bill and said bringing in an emergency manager without ties to the distressed government entity is critical.

“The emergency manager is going to be removed enough to make tough decisions that locals aren’t willing to make,” Johnston said. * * *

ohnston sits on the state’s three-member Financial Distressed Unit Board, the entity that would appoint the emergency manager if petitioned to do so.

The board’s role in the process prompted some criticism during a recent hearing on the bill from those who said it’s an attempt by the state to take over local units of government.

Johnston, who sat through the hearing, scoffed at the notion. “We have enough problems of our own,” he said, referring to the state’s financial challenges brought on by several years worth of declining revenues. “We don’t need to come in and run a local government.”

He also said that the local units of government would have to be dire straits before an emergency manager would step in. Missing a bond payment is one of the criteria in the bill. Another is missing two consecutive payrolls.

Johnston and Charbonneau think the bill would provide a mechanism that would be rarely used, in part because it would require local leaders, such as mayors or school superintendents, to admit they’d failed as fiscal managers.

But the bill would also allow creditors to step in and petition for an emergency manager if the creditor, or a coalition of creditors, was owed more than 30 percent of the government unit’s annual revenue.

“It may force public officials to make some hard decisions,” Charbonneau said. “Maybe it will incentivize folks to do something before it gets to that point.”

Although the bill "has been tagged the 'bankruptcy bill' for its provision that would allow insolvent local units of government, including school districts, to file for Chapter 9 bankruptcy":
Charbonneau and state budget officials call it a “bankruptcy avoidance” bill that, if passed, could impose fiscal discipline on local communities whose leaders may lack the support – or the gumption – to solve their own financial crises.

Posted by Marcia Oddi on Friday, January 14, 2011
Posted to Indiana Government

Ind. Law - "He's also hopeful his hysterectomy bill will get a committee assignment this year"

From a story yesterday by Nick Schneider, Assistant Editor of the Greene County Daily World, about 2/3 through a story discussing the session so far with District 45 State Rep. Bruce Borders (R-Jasonville):

Lawmakers have until today (Tuesday) to file bills and the committee chairs decide which bills will get a hearing and move on.

Specific legislation that Borders is hopeful will receive a committee assignment is a bill he is co-sponsoring with District 39 State Sen. John Waterman that would allow Indiana cities and towns to collect their own money for ordinance violations, rather than going through the regular county court system.

Borders said this pertains to ordinance violation cases such as those dealing with tall grass, dilapidated houses and local traffic citations.

He's also hopeful his hysterectomy bill will get a committee assignment this year.

Borders, who believes most of the hysterectomy procedures performed are unnecessary, was unsuccessful in passage of a bill he sponsored in 2010 that would have required women to have informed consent before undergoing the medical procedure.

The bill died last January without a vote in committee.

Borders continued his fight for the legislation during a summer study committee and says things look better this session.

Hysterectomy is the surgical removal of the uterus, a hormone-responsive female reproductive sex organ.

Under Borders proposed bill, patients would be required to watch a video/DVD that relates information that the procedure will result in infertility, and a description of the discomforts and risks that might follow the procedure.

The bill is HB 1257.

Posted by Marcia Oddi on Friday, January 14, 2011
Posted to Indiana Law

Environment - Two NIPSCO stories yesterday

Gitte Laasby of the Gary Post Tribune reported:

From a story headed "Disputed electric rate hike dropped: Utility to pursue case calling for increase of 7.9 percent":

Northern Indiana Public Service Co. has effectively given up on the controversial rate case that would have increased customers' electric rates by 16.8 percent, a NIPSCO spokesman told the Post-Tribune on Wednesday.

The increase, which had been approved by the Indiana Utility Regulatory Commission, was scheduled to take effect in February but that won't happen.

"Rates from that first case would not take effect," NIPSCO spokesman Nick Meyer confirmed.

New rates won't take effect until late 2011 or early 2012, he said.

And the increase will be only half what NIPSCO first proposed -- 7.9 percent. That's an increase of about $5.94 on a monthly bill for a typical customer. Until then, customers will continue to be billed at the rates from the past two decades. * * *

Meyer said, "All agree the focus should be on the second case. So why is there a need to have meetings to discuss the first case?

"We said when we filed the second case, we feel this is a much better solution. It's half the amount we proposed in the first case," Meyer said. "Let's drop any scheduled hearings or meetings to discuss the first case any further. The commission still has to approve that, but it's sort of where we stand."

From a lengthy story headed "NIPSCO settles with EPA ":
The Northern Indiana Public Service Co. will permanently shut down its power plant in Gary, invest about $600 million in pollution controls and pay $13 million in environmental mitigation and penalties as a result of a settlement with the federal government Thursday.

The legal agreement will create jobs and result in reductions in air pollution, specifically of a pollutant that can lead to asthma attacks and cause premature death, one that can aggravate respiratory and heart disease and smells like rotten eggs, and one that contributes to ozone and acid rain.

Posted by Marcia Oddi on Friday, January 14, 2011
Posted to Environment

Thursday, January 13, 2011

Ind. Courts - More on legal issues in Bisard case

Updating this ILB entry from earlier today, where the ILB linked to a copy of Prosecutor Curry's motion to dismiss, filed yesterday, a reader has sent a copy of the 17-page Defendant's "objection and motion in limine regarding State's proposed use of blood alcohol evidence" (for the reckless charges) filed in December. The reader notes that it cites some cases that are relevant to the issue, including Brown v. State, 911 N.E.2d 668 (Ind. Ct. App. 2009), trans. granted and then denied.

ILB: [Corrected] Here is Roger Brown, 911 NE2d 668. For background, start with this ILB entry from May 28, 2010.

Posted by Marcia Oddi on Thursday, January 13, 2011
Posted to Indiana Courts

Ind. Gov't. - Governor names Kari Evans Bennett to the Indiana Utility Regulatory Commission (IURC)

From the press release:

“The nominating committee presented me with a full slate of qualified candidates and I believe that Kari’s vast regulatory experience and legal background make her the best prepared of an excellent group,” said Daniels.

When a vacancy occurs on the IURC, applications are solicited from the public and accepted by a seven member nominating committee. The committee, comprising four legislative and three gubernatorial appointments, screens the applications and conducts interviews that are open to the public. After conducting the public interviews, the nominating committee recommends three candidates to the governor who then names a new member to the commission.

Members of the nominating committee are committee chair William Stephan, Jennifer Messer, Greg Gibson, Mark Pope, Susan Sandberg, Larry Buell and June Lyle.

Although she has never appeared before the IURC, Bennett has practiced environmental law for 12 years, both regulating industry and representing business and municipal interests before environmental regulators. Bennett is an Indianapolis attorney currently serving as chief legal counsel for the Indiana Department of Natural Resources (DNR). Prior to her service with DNR, she was an attorney in the Indiana Department of Environmental Management and a policy director in the governor’s office. Additionally, she practiced law with Barnes & Thornburg LLP. Bennett earned her bachelor’s degree from Miami University, Ohio and her law degree from the University of Minnesota Law School.

Bennett replaces former chairman David Lott Hardy and will serve the remainder of a four-year term that ends on March 31, 2014. Her appointment is effective immediately.

ILB: To clarify, Ms. Bennett will fill the vacancy left by Hardy on the Commission, but will not serve as Chair. Daniels named Jim Atterholt chair on Oct. 5, 2010.

Posted by Marcia Oddi on Thursday, January 13, 2011
Posted to Indiana Government

Courts - "State of the Judiciary" in Indiana and Iowa

The Chief Justices of Indiana and Iowa addressed their respective General Assemblies yesterday. Here are some reports.

Indiana. Eric Bradner of the Evansville Courier and Press has this story, headed "Sentencing reforms pushed." Although most of the story is devoted to the sentencing changes supported by both the Governor and the Chief Justice:

Shepard discussed three more issues during his address: the work the courts have done to limit mortgage foreclosures; technological advances the courts have made in recent years; and "plain English" jury instructions that avoid legal jargon.
Iowa. If you have been reading the ILB, you know that the Supreme Court in Iowa is under siege. The three members up for retention in Nov. were voted out; the remaining four justices are threatened with impeachment. This story by Iqor Volsky of The Wonk Room gives the picture; it begins:
This morning, Iowa Supreme Court Chief Justice Mark Cady defended the court’s 2009 decision to overturn the Iowa Defense of Marriage Act (DOMA) and allow same-sex couples to marry in the state, even as three Republican lawmakers in the Iowa House were drafting articles of impeachment against him and the three justices that joined the opinion but “did not stand for retention in November.” Cady was the author of the unanimous marriage ruling, Varnum v. Brien. * * *

“Unlike our political institutions, courts serve the law, not the interests of constituents,” Cady said. “Courts serve the law, not the demands of special interest groups. Courts serve the law, not the electorate’s reaction to a particular decision. By serving the rule of law, courts protect the civil, political, economic and social rights of all citizens.”

Cady reminded lawmakers that “the duty of courts to review the constitutionality of laws is known as judicial review and is one of our most basic responsibilities…This is the very duty the court exercised in the Varnum decision.” “[S]ince 1846, litigants in Iowa in roughly 1000 cases have asked the Iowa Supreme Court to protect their constitutional rights by invalidating a state law,” Cady said. “During this same time, the court has declared acts of the legislature unconstitutional in over 150 cases. Unlike the Varnum decision, however, most of these court decisions have received little attention. But, that lack of attention does not diminish the strength and importance of the principle at stake.”

But the message seemed to be lost on Cady’s critics.

Here is a report from Grant Schulte of the DesMoines Register headed "Chief Justice warns Iowa lawmakers about threat to checks and balances." Some quotes:
Iowa Supreme Court Justice Mark Cady warned lawmakers today that attacks on the judiciary based on misunderstandings poses a threat to the checks-and-balances system that protects individual rights. * * *

The speech came nearly two months after voters ousted Chief Justice Marsha Ternus and Justices David Baker and Michael Streit in a retention vote. All three were the targets of an anti-retention campaign by conservative activists who opposed the gay marriage ruling. The removal vote was the first of its kind since Iowa adopted a commission-based judge selection system in 1962.

Cady briefly addressed the gay marriage decision, Varnum v. Brien, which overturned the state’s one-man, one-woman marriage law and allowed same-sex couples to wed. He said the justices “worked hard to author a written decision to fully explain our reasoning to all Iowans, and we understand how Iowans could reach differing opinions about this decision.”

“This discourse is not new for Iowa, although I doubt it has ever been so strong,” Cady said. “Our court has, many times in the past, decided cases involving civil rights that were quite controversial at the time. Yet, over time, those cases have become a celebrated part of our proud and rich Iowa history of equality for all.”

Cady drew strong, standing applause from the public gallery and roughly half of the chamber when he mentioned past civil rights decisions and “our proud and rich Iowa history of equality for all.” Many Republican legislators and all of the judges in the chamber stayed seated.

Cady argued that courts serve the law and not political constituents. He rejected the notion that courts should suspend rulings and give the legislature time to act, an argument made by some conservative activists who opposed the gay marriage ruling.

“Courts serve the law, not the demands of special interest groups,” he said. “Courts serve the law, not the electorate’s reaction to a political decision. By serving the rule of law, courts protect the civil, political, economic and social rights of all citizens.” * * **

The chief justice also promised new openness within the courts to boost public trust. The Iowa Supreme Court, for instance, will start to hold some of its oral arguments in communities throughout Iowa. He pointed to the recent decision by the 15-member judicial nominating commission to interview Iowa Supreme Court applicants in a public forum.

Here are copies of the text of the State of the Judiciary from Indiana and from Iowa.

Posted by Marcia Oddi on Thursday, January 13, 2011
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Term. of Parent-Child Rel. of H.C. and T.C.; J.C. v. IDCS (NFP)

NFP criminal opinions today (1):

Michael Gregory v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 13, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Temporary procedures for selection of special judges

The Supreme Court has filed an order creating temporary (transitional) procedures for the selection of special judges.

Posted by Marcia Oddi on Thursday, January 13, 2011
Posted to Indiana Courts

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

Updating earlier ILB entries, both Region papers have stories today on yesterday's committee hearing on SB 151.

Dan Carden reports in the NWI Times:

A state Senate committee heard two hours of testimony but took no action Wednesday on a plan intended to prevent local government bankruptcies.

State Sen. Ed Charbonneau, R-Valparaiso, said he will make adjustments to his legislation and ask the Senate Judiciary Committee to vote to send it to the full Senate in a few weeks.

"My objective coming out of this meeting was met. There was a lot of very thoughtful dialogue, thoughtful suggestions that we need to go back and take a look at," Charbonneau said.

Senate Bill 105 allows the legislative and executive branches of a local government to jointly ask a state board to appoint an emergency manager to take over that entity's finances.

The local government must meet one of eight financial criteria, such as defaulting on bonds or being more than a month late paying employees.

Charbonneau said his goal actually is to prevent bankruptcies -- by adjusting a distressed government's finances at the state level.

"If you go right to bankruptcy, you've lost all control at that point; it's now in the hands of a judge," he said.

Representatives of Indiana counties, cities, towns and schools boards told the committee they support the legislation in principle but asked that it spell out emergency-manager qualifications and pay.

They also questioned whether there ought to be a separate process for distressed school corporations. * * *

Under Charbonneau's proposal, supported by state Sen. Earline Rogers, D-Gary, and Gov. Mitch Daniels, a local government could declare bankruptcy if the emergency manager is unable to fix its finances.

Current state law does not allow local governments to use the federal bankruptcy program.

Jon Seidel of the Gary Post Tribune reports:
As written, the bill would let a local government or qualifying creditor petition a three-member Indiana Distressed Unit Appeals Board. That board would appoint an emergency manager to take on the powers of the executive and fiscal branch of that government and try to put a plan in place to resolve its financial problems.

The DUAB could also send the unit of government into bankruptcy court, an option most agree is not available under current law.

But Charbonneau couldn't tell the Senate's judiciary committee how that manager would be paid, and speakers complained about the lack of qualifications laid out for such a person. A lobbyist for Indiana cities and towns pointed out no appeal process exists for a city sent to the DUAB by one of its creditors, and a school lobbyist asked whether a separate board should be created to deal exclusively with education. * * *

Karen Freeman-Wilson, who is running for Gary mayor, said Charbonneau's bill is aimed squarely at her hometown.

"This is a takeover by state government, which is very, very troubling," Freeman-Wilson said.

Charbonneau denies the bill is aimed at Gary. He began his remarks by saying it's "very unfortunate" the legislation has even been labeled a "bankruptcy bill," instead of one meant to help cities avoid that fate.

"I see it as a process that is to help the taxpayers in the city of Gary," Charbonneau said.

He later acknowledged the idea for the bill came to him while he monitored the DUAB's activities. Gary is the only city that has petitioned the board

The committee took no vote on the bill, and the chairman said a revised version will get another hearing.

Posted by Marcia Oddi on Thursday, January 13, 2011
Posted to Indiana Government

Ind. Law - "Brizzi declined to comment on the case to 6News, citing his exclusive contract with another television station" [Updated twice]

That is a quote from this 6NEWS story last evening, headed "Alcohol Charges Against Bisard To Be Re-Filed: Prosecutor Says Judge Should Decide Blood Test Admissibility." Interesting.

See also this ILB entry from yesterday.

[More] Prosecutor Curry reportedly referenced this COA opinion in his press conference yesterday: Thomas C. Temperly v. State of Indiana, decided Thursday, September 09, 2010. See the ILB summary here.

[Updated at 9:00 am] Carrie Ritchie of the Indianapolis Star has this story today, headed "Will new alcohol charges stick in Bisard case?"

The Star links to Prosecutor Curry's motion to dismiss and refile. On p. 3 of the document, "in support of the motion," para. 3(e), the following:

The decision to dismiss and re-file is not based in prosecutorial vindictiveness, nor is it an abuse of prosecutorial discretion. The undersigned in previous statements made it clear that his legal interpretation of lndiana statutes and case law pertaining to the admissibility of the blood draw in this case differed from that of his predecessor. Further, after the·OVWI counts were dismissed by the prior administration the Court of Appeals decided the case of Temperly v. State, 933 N.E.2d 558 (Ind.Ct.App. 2010). The OVWI counts were dismissed by the State on August 20, 2010; the Temperly case was decided September 9, 2010.

Posted by Marcia Oddi on Thursday, January 13, 2011
Posted to Indiana Law

Ind. Courts - More on: What does it mean to be suspended without automatic reinstatement?

Yesterday I posted this ILB entry, referencing the Jan. 10, 2011 "Published order granting conditional reinstatement" to Marc C. Laterzo, as a starting point for detailing how the Supreme Court's suspension of an attorney for a set period, such as three months, but "without automatic reinstatement, is really a much more significant penalty that it may seem, involving a series of requirements that must be met, followed by a period of probation.

Last evening I received this note from Don Lundberg, Barnes & Thornburg, who formerly was the Indiana Supreme Court Disciplinary Commission Executive Secretary:

Hi, Marcia,

An added significance to the words "without automatic reinstatement" is time.

If you look at the Marc Laterzo on-line docket sheet [45S00-0807-DI-413] you will see that he petitioned for reinstatement on February 26, 2010 and was readmitted (on conditions, in his case) on January 10, 2011. Just under 11 months after he was suspended.

His suspension of 180 days began on August 7, 2009. So he petitioned for reinstatement pretty close to his earliest eligibility date.

Mr. Laterzo was represented by Marce Gonzalez, a former Disciplinary Commission member and a very knowledgeable and able lawyer in this practice area. You can pick up most of the other dates from the docket sheet. In my experience this is on the fast end of the spectrum for getting reinstated.

The result is that the magic words "without automatic reinstatement" translate into roughly an additional year of suspension time assuming the lawyer succeeds in getting reinstated. Remember, at the reinstatement stage, the burden of proof is on the petitioning lawyer to prove fitness by clear and convincing evidence.

Posted by Marcia Oddi on Thursday, January 13, 2011
Posted to Indiana Courts

Law - More on "Is Law School a Losing Game?"

Updating this ILB entry from Jan. 9th, which quoted a NYT story, Stan Jastrzebski has this article and video for Indiana Public Media quoting William Henderson of Maurer Law, headed "IU Law Prof Wants Better Numbers, Ratings Changes." It begins:

An Indiana University law professor is calling on the American Bar Association to clear up how law schools are rated. William Henderson wants the ABA to begin auditing how many law school graduates are gainfully employed in their field of study soon after graduation. The current system rating agencies like U.S. News and World Report use only tracks how many graduates get jobs, regardless of where. Henderson said it’s a system law schools have known for years is broken, but which cannot be fixed without overarching control by an outside body.

Posted by Marcia Oddi on Thursday, January 13, 2011
Posted to General Law Related

Wednesday, January 12, 2011

Ind. Courts - Here is the text of the 2011 State of the Judiciary

Access it here.

Posted by Marcia Oddi on Wednesday, January 12, 2011
Posted to Indiana Courts

Ind. Courts - What does it mean to be suspended without automatic reinstatement?

In a number of disciplinary opinions, the Supreme Court uses the phrase "This Court suspends Petitioner for (specific period) without automatic reinstatement."

What does "without automatic reinstatement" mean?

This opinion issued Jan. 10, 2011, headed "Published order granting conditional reinstatement" to Marc C. Laterzo, lists the nine requirements, including, at #9, taking the Multistate Professional Responsibility Examination and passing with a score of 80 or above. In addition, the reinstatement is conditional, involving a period of probation.

In short, the phrase "without automatic reinstatement" is very significant.

Posted by Marcia Oddi on Wednesday, January 12, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - Another laudatory article: "Judy Clarke: Jared Loughner's 'Amazing' Attorney"

Andrew Cohen, legal analyst for Politics Daily, has this long and detailed report today. A sample:

The 22-year-old defendant in the Tucson massacre case could have been assigned a lawyer who sleeps through trials, or who doesn't investigate witnesses, or who otherwise is ineffective as he squares off with federal prosecutors, a devastated Arizona, and an angry nation. In Clarke, Loughner has in his corner a tenacious attorney who is something of a folk hero to criminal defense attorneys around the country. She is dogged, detailed, and well-respected among the federal judiciary. She is also a staunch opponent of the death penalty, which is helpful, if not required, in her line of work. And she specializes, or so it seems, in molding pretrial agreements between her clients and the government which end up precluding long trials, endless appeals, and death row visits. Even legendary trial lawyers, ones with stellar national reputations of their own, consider Clarke "amazing" (to use a word that kept popping up in my in-box).

Posted by Marcia Oddi on Wednesday, January 12, 2011
Posted to Courts in general

Ind. Law - "Prosecutor files Alcohol charges against Bisard"

Updating this long list of ILB entries, and particularly this ILB entry from Aug. 23, 2010, headed "Blood draw law might benefit from another look by the legislature," which concludes:

Take a look at the entire IC 9-30-6-6, including the changes made to subsection (j) earlier this year.
WISHTV8 is reporting:
Marion County Prosecutor Terry Curry Tuesday announced his office is re-filing alcohol related charges against IMPD Officer David Bisard.

Six alcohol related charges were dropped by former Prosecutor Carl Brizzi back in August when his office determined the blood test that proved Bisard was intoxicated may not be admissible in court.

“As you are aware we made it clear during our campaign that we disagreed with the legal analysis which seemed to be the basis of the dismissal,” Curry said.

He stated that it is appropriate to have a judge rule on the admissibility of the blood test if Bisard’s attorney wishes to challenge the circumstances surrounding the evidence.

“After thoughtful and careful review of the case by this office, we think that if there is any ambiguity in the law as it relates to the admissibility of the blood test, then a judge should make that final determination,” Prosecutor Curry said. “We will make every argument we feel is appropriate for the test to be admissible and are committed to vigorously pursue this case.”

Here is the story from the Indianapolis Star.

Posted by Marcia Oddi on Wednesday, January 12, 2011
Posted to Indiana Law

Ind. Decisions - A Supreme Court Order re a potential rehearing in Hopper

The ILB has received a copy of this Jan. 10, 2011 Order in the case of David Hopper v. State, signed by CJ Shepard. It reads:

On September 28, 2010, we issued our opinion in the above referenced matter. On October 27, 2010, Appellee timely filed a Petition for Rehearing. Appellant did not file a Response.

To assist the Court in its consideration of the Appellee's Petition for Rehearing, the Court REQUESTS the Appellant to file a Response on or before February 11,2011.

Also, the Court INVITES any interested amicus curiae, regardless of the party with which it is substantively aligned, to file its motion to appear and tender its proposed amicus brief on or before February 11, 2011. See Ind. Appellate Rule 41. This matter will be set for oral argument by separate order in due course.

The Clerk is directed to send a copy of this order to counsel of record. The Clerk is also directed to send a copy of this order to Susan Carpenter, Public Defender of Indiana; David Cook, Chair, Indiana Public Defenders Council; and Stephen Johnson, Executive Director, Indiana Prosecuting Attorneys Council.

ILB readers likely will recall the 3-2 opinion in David Hopper v. State of Indiana, where then-Justice Boehm wrote the majority opinion, and CJ Shepard wrote an impassioned dissent,. Some quotes from the opinion:
[J Boehm] [W]e exercise our supervisory power to require that in the future a defendant expressing a desire to proceed without counsel is to be advised of the dangers of going to trial as required by Faretta, and also be informed that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution’s case. Such an advisement will require minimal additional time or effort at the initial hearing, and may encourage defendants to accept counsel.

[CJ Shepard] If indeed the advisement is likely to be minimal, does it tell offenders anything they didn’t learn from television? How many repeat offenders will avoid the penalties they have otherwise earned because the warning was omitted or was found inadequate with the benefit of hindsight? How many victims will these repeat offenders create? That society, or even offenders, will be better off is far from clear.

Posted by Marcia Oddi on Wednesday, January 12, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Watch CJ today at 2:30 EST

Reminder: The Chief Justice of Indiana, Randall T. Shepard will deliver the 2011 State of the Judiciary to a joint session of the Indiana General Assembly Wednesday, January 12th at 2:30 p.m. EST.

Watch online here
.

Posted by Marcia Oddi on Wednesday, January 12, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Beck's Superior Hybrids, Inc. v. Monsanto Company, et al., a 28-page, 2-1 opinion, Judge Najam writes:

In 2002, Monsanto Company and Monsanto Technology, LLC (collectively, “Monsanto”) entered into a corn license agreement and a soybean license agreement with Pioneer Hi-Bred International and its parent company, E.I. DuPont de Nemours & Company (collectively, “DuPont”). Pursuant to those agreements, any disputes between the parties were to be resolved by arbitration in New York City. On May 4, 2009, Monsanto filed a demand for arbitration against DuPont, alleging that DuPont had engaged in a sublicensing scheme involving numerous third parties throughout the United States, including Beck's Superior Hybrids, Inc. (“Beck's”) in Indiana. Thereafter, at Monsanto's request the arbitration panel issued a subpoena duces tecum to Beck's, ordering Beck's to appear at a preliminary hearing, in Indiana, before one of the panel members and to produce business records relating to Monsanto's arbitration claim.

Beck's refused to comply with the subpoena on the grounds that the Federal Arbitration Act, 9 U.S.C. §§ 1 to 16 (2010) (“the Act”), required Monsanto to seek enforcement of its nonparty subpoena in “the United States district court for the district” in which the arbitration panel was sitting, the Southern District of New York. See 9 U.S.C. § 7 (2010). Cognizant of the fact that it lacked subject matter jurisdiction to file a petition in the New York federal court, and that that court lacked personal jurisdiction over Beck's, Monsanto instead filed a petition to assist in the Hamilton Superior Court, pursuant to Indiana Trial Rule 28(E), to compel Beck's to comply with the subpoena. The trial court agreed with Monsanto and ordered Beck's to comply with the arbitration panel's subpoena.

Beck's now appeals, asserting that Section 7 of the Act preempts Indiana Trial Rule 28(E). We agree and hold that Section 7 is unambiguous: to enforce an arbitration panel's subpoena against a nonparty, the party seeking enforcement must file its petition “in the United States district court for the district” where the arbitration panel, or a majority of its members, is sitting. See id. That district court is in the Southern District of New York. We also hold that Monsanto's lack of federal subject matter jurisdiction to enforce its subpoena does not justify ignoring the plain text of Section 7. To the contrary, the statutory gap in enforceability reflects a clear policy choice by Congress that we may not reconsider. Therefore, we reverse the trial court's order and remand with instructions that the court dismiss Monsanto's petition to assist. * * *

We hold that, by its plain language and upon the facts before us, Section 7 of the Act preempts Trial Rule 28(E). Thus, the trial court erred in entering judgment for Monsanto on Monsanto's Trial Rule 28(E) petition to assist. We reverse that judgment and remand with instructions that the trial court dismiss Monsanto's petition.
Reversed and remanded with instructions.

MATHIAS, J., concurs.
BAKER, J., dissents with separate opinion. [that begins, at p. 26 of 28] I respectfully dissent. I agree that if there were federal court jurisdiction over these parties, then Congress intended the federal district courts to be the exclusive venue in which an arbitrator's subpoena may be enforced. But I simply cannot conclude that where, as here, there is no federal court jurisdiction, Congress intended to tie the hands of the arbitrators and the States in this fashion. If there is no federal court jurisdiction, then this is simply an intra-state dispute.

In Alesa Pack v. Indiana Family and Social Services Administration , in an opinion on rehearing, Judge Bailey writes:
In our original decision, we stated that “Medicaid determinations are reviewed under the Administrative Orders and Procedures Act ('AOPA').” Id. at 1222; also id. at 1225. We now clarify our prior decision to note that while AOPA applies to judicial review of Medicaid determinations, separate rules apply to the review of such decisions by an ALJ as they pertain to recipients of and applications for Medicaid benefits, which rules we applied when we reviewed the ALJ's decision in our original decision. See Ind. Code § 4-21.5-2-6(3)(c); 405 IAC 1.1-1 et seq. With this clarification, we affirm our original decision in all respects.

KIRSCH, J., concurs.
RILEY, J., votes to deny petition for rehearing without opinion.

In Brian Reese v. State of Indiana - "Reese has demonstrated no abuse of the trial court's discretion in the admission of evidence or in the instruction of the jury. There is sufficient evidence of Reese's intent to kill Officer Fishburn. Finally, Reese has not shown that the trial court abused its sentencing discretion or that his maximum sentence is inappropriate.
Affirmed."

NFP civil opinions today (0):

NFP criminal opinions today (4):

Glenn L. Carpenter v. State of Indiana (NFP)

Lucas Scholl v. State of Indiana (NFP)

Camiell Chest v. State of Indiana (NFP)

Wesley D. Willis v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 12, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case, and a notice requirements case

In Thomas v. H&R Block (SD Ind., Hamilton), a 16-page opinion, Judge Flaum writes:

Amorita Thomas (“Thomas”) sued her employer, H&R Block Eastern Enterprises, Inc. (“H&R Block”), under Indiana’s Wage Payment Statute, IND. CODE § 22-2-5-1 et seq. (2010), for paying its end-ofseason (“EOS”) compensation more than ten days after it was earned. The district court granted H&R Block’s motion for summary judgment based on a finding that EOS compensation did not constitute “wages” under Illinois statutory law. At issue is whether H&R Block’s EOS compensation is a wage under Indiana law, and thus whether it is subject to the Wage Payment Statute, which requires employers to pay “wages” no more than ten days after they are earned. Both Indiana and federal case law provide guidelines for answering this question. In light of those guidelines, we affirm. * * *

This case does not warrant certification. First, it involves the interpretation of a compensation program that appears unique to H&R Block. Resolution of this case would unlikely “have a far-reaching precedential effect for others.” Id. Second, the Indiana Supreme Court has provided guidance on this issue that assists us in resolving this dispute, most recently in Highhouse. We decline to certify such a fact-specific question, especially in light of Indiana case law addressing issues similar to the issue this case presents.

In DeTata v. Rollprint Packaging, a case out of Illinois, Judge Wood writes:
The only question before us in this appeal is whether Sherry DeTata’s lawsuit complaining of sex discrimination at the hands of her employer, Rollprint Packaging Products, Inc., was filed too late. Everyone agrees that she properly filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”); the problem centers around what happened next. The EEOC dismissed DeTata’s case, and it mailed a right-to-sue letter, but that letter never reached DeTata and was returned to the agency as undeliverable. DeTata learned about the agency’s action only when she telephoned to check on her case. At that point, the EEOC re-sent the right-to-sue letter and a copy of her file; she filed this suit within two months of receiving those materials. The district court, however, using the date of DeTata’s phone call as the beginning of the 90-day period in which she had to file her suit, granted Rollprint’s motion to dismiss on the ground that her suit was untimely. We conclude that, under the facts of this case, the telephone call did not satisfy the notice requirements of 42 U.S.C. § 2000e-5(f)(1). We therefore vacate the district court’s judgment and remand the case for further proceedings.

Posted by Marcia Oddi on Wednesday, January 12, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Goldsmith’s Other Bad Snow Day"

Updating earlier ILB entries on former two-term Indianapolis Mayor Stephen Goldsmith, who is now NYC Deputy Mayor in charge of, among other things, snow removal, the NY Times has had several stories on Goldsmith in the past few days.

"On Walking, Chewing Gum, and Saying Sorry," by Clyde Haberman has this quote:

And so, led by City Hall’s designated lightning rod, Stephen Goldsmith, the deputy mayor for operations, administration officials appeared before council members on Monday to acknowledge their errors during the blizzard and to vow to make amends.

Theirs was not quite the public display of contrition shown by Henry IV, the 11th-century monarch who sought absolution from the pope by doing three days of penance in the snow. Nonetheless, one by one, the officials humbled themselves, a stylized falling on swords not often seen outside of samurai movies.

"City Officials Admit Mistakes in Response to Blizzard," reported by Javier C. Hernandez, includes:

In candid terms, Deputy Mayor Stephen Goldsmith [see photo] acknowledged there were “a lot of mistakes made” during the storm, which by some estimates dropped 20 inches of snow in the city from Dec. 26 to 27. He said the city would revamp its emergency procedures.

“We owe you and all New Yorkers for that lack of performance our administration’s apology and my personal promise not to let it happen again,” Mr. Goldsmith said, announcing a 15-point plan of action.

For an administration not accustomed to issuing apologies, it was a stunning few hours of atonement. Officials acknowledged that the mayor had not been kept informed at crucial moments, that the city had failed to obtain an adequate supply of snowplows from private contractors, and that information to the public was often confusing.

Mr. Goldsmith, a former mayor of Indianapolis who is in charge of city operations, offered a significant concession when he said the city should have declared a state of emergency as the storm grew more ominous, which would have given officials more authority to clear parked cars from streets.

"Goldsmith’s Other Bad Snow Day" by David W. Chen, includes a gleeful quote by Indianapolis' Sheila Suess Kennedy, who served with Goldsmith in the Marion County Prosecutor's office many years ago. The article begins:

The man who was in charge of snow removal operations, Stephen Goldsmith, was out of town when the storm caught his city by surprise. A snow emergency was not declared. And after much criticism, he vowed to review what went wrong, and to do a better job the next time.

Indianapolis sure had a rough start in 1994.

That is when Mr. Goldsmith was the mayor [see photo], and his city was hammered by two snowstorms within a week that dropped more than a foot of snow. Small wonder, then, that some of his former constituents say that there are unmistakable parallels to the present, given Mr. Goldsmith’s much-criticized performance handling the blizzard last month in his current job as New York City’s deputy mayor for operations.

“When I logged onto my Facebook page after the big New York snow,” said Sheila Suess Kennedy, who was corporation counsel under Mr. Goldsmith’s predecessor, a fellow Republican [ILB: That would be Bill Hudnut], “I was surprised to see that a dozen or so of my Facebook friends had independently posted the New York Daily News column attributing the snow removal fiasco to Goldsmith’s poor management, along with comments like ‘Déjà vu all over again,’ ‘Yep — that’s our Stevie’ and ‘Bloomberg should have asked someone from Indianapolis before appointing him.’ ” Ms. Kennedy is now a professor of law and public policy at Indiana University-Purdue University Indianapolis.

Posted by Marcia Oddi on Wednesday, January 12, 2011
Posted to Indiana Government

Ind. Gov't. - Illinois GA passes hike which "would raise the personal income tax-rate by 67 percent and the business income tax rate by 46 percent."

Here is the story today, from the Chicago Tribune's Ray Long and Monique Garcia. It begins:

A triumphant Gov. Pat Quinn congratulated fellow Democrats early today after the Illinois Senate and House sent him a major income tax increase without a single Republican vote in favor.

Quinn smiled and shook hands on the floor of the Senate around 1:30 a.m. after the Senate voted 30-29 for the bill, which would raise the personal income tax-rate by 67 percent and the business income tax rate by 46 percent.

The House passed the bill hours earlier Tuesday night -- likewise without a vote to spare and with nary a Republican in support.

Posted by Marcia Oddi on Wednesday, January 12, 2011
Posted to Indiana Government

Ind. Gov't. - "Lawsuit threatened over Vissing Park work in Jeffersonville"

David Mann reported Jan. 10th in the Jeffersonville News & Tribune in a long story that begins:

City officials have been served with a notice of intent that threatens legal action related to deforestation that took place at Vissing Park late last year.

About 15 acres of the forest were cleared to make way for new softball, soccer and football fields. Mayor Tom Galligan and members of the Jeffersonville City Council have said it was an attempt to reclaim an underutilized portion of the park. However, the clearing has come with opposition from neighbors and naturalists who said the work dropped property values and took away a habitat for wildlife.

Four residents, represented by New Albany attorney Matthew Lorch, filed the notice, which gives the city 60 days to remedy permitting issues. Jason Flickner, Wendy Cooper, Tracy Spence and Rose Stevens, on behalf of the Knob and Valley Audubon Society of Southern Indiana, are among signees. Grasshopper Landscaping & Tree Service, the company that the city hired to clear the forest, also is named in the notice.

The primary issues cited in the notice relate to an unnamed stream — a tributary of Lancassange Creek — that bisects the property. That stream also has drawn the attention of regulatory agencies, including the Indiana Department of Environmental Management and the U.S. Army Corps of Engineers.

The notice states that “the proposed project has previously and continues to unlawfully degrade an unnamed tributary of Lancassange Creek” due to the failure of the city and Grasshopper to acquire the state and federally required permits.

“On information and belief, the city of Jeffersonville and Grasshopper Landscaping & Tree Service Inc. has illegally discharged dredged and/or fill material as well as pollutants and/or stormwater from the project site at will and on every day that it has rained at the project site since the land disturbance occurred,” it said.

The filing — citing the federal Clean Water Act — said each violation subjects the city and Grasshopper to $37,500 per day, per violation in fines. Those behind the filing will also seek declaratory relief that prevents further violations at the site.

“This is an arrogant disregard for the law and nature,” Flickner said in a press release. “We will work to reverse this damage and protect both citizens and the environment.”

Lorch said the city would need to get the permits in order to avoid litigation. City officials have argued that they didn’t need permits to pursue the project.

“This group of individuals is trying to stop the city of Jeffersonville from providing a park for the children and the citizens of Jeffersonville,” said attorney Larry Wilder, who will represent the city on the matter. “That’s the tragedy of all this.”

Posted by Marcia Oddi on Wednesday, January 12, 2011
Posted to Environment | Indiana Government

Ind. Law - Indianapolis attorney Merrill Moores dies at 84

The Indianapolis Star today has a lovely obituary. Some quotes:

He turned eighteen on V-J Day and would forever thereafter claim the Japanese heard he would be entering military service and had therefore surrendered. After serving in the U.S. Army he stayed in the Philippines and taught English to the locals.

Upon returning to the U.S. he enrolled in Indiana University, where he was member of the Phi Delta Theta fraternity. He graduated with a double major which would have allowed him to go on to medical school or law school; he chose the law.

While in law school he lived in the basement of the law school, excelling in his studies, playing Hearts at a penny a point and making life-long friends.

He clerked for State Supreme Court Justice James A. Emmert. He graduated from law school Order of the Coif and continued on as faculty, teaching Contracts, while also serving as a deputy prosecuting attorney for Noble Pearcy.

He left the prosecutor's office to join the firm of Stewart Irwin Gilliom Fuller and Meyer (now Stewart & Irwin PC), where he practiced for several years before leaving to start his own practice.

He practiced with Dave Millen from Evansville and remained active in Marion County Republican politics. He was an avid Republican and served in the House of Representatives in the Indiana General Assembly where he chaired the Judiciary Committee as a freshman legislator.

Later in private practice he was joined by John L. Price, with whom he practiced law for more than thirteen years before Price was named to the Marion County Municipal Court bench. Some called them the "Mutt and Jeff" of the Marion County Bar—Merrill, a tall Republican and John, a short Democrat. Their friendship spanned decades and only ended with Judge Price's death in 2005.

ILB: One of Moores' daughters is Marion County Judge Marilyn Moores. See June 13, 2010 ILB entry.

Posted by Marcia Oddi on Wednesday, January 12, 2011
Posted to Indiana Law

Tuesday, January 11, 2011

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

Updating this ILB entry from Dec. 30, 2010, the relocated Marion County Traffic Court opened yesterday. WTHR13 was there, here is the story complete with photos and a video. A few quotes:

"We have over a thousand parking spaces here where we had 50 in the place before. We have seating in the court room for about 180 where we had seating for about 125 before. We have a waiting room which we never even had before where we can put 150 people. We have individual offices for prosecutors and public defenders so they can have private and meaningful conversations with their clients and work with them," said Judge Bill Young, Marion County Traffic Division.

Of the 200,000 traffic tickets a year, about 35,000 of them make their way to the court room for a hearing. The new setup will make that process more efficient.

"I get it, nobody wants to come to traffic court. I understand that. I understand nobody wants to get a ticket they think they don't deserve. I appreciate that. The fact is, once you get the ticket and the reality sets in, we want to be here to be as efficient as we can so we don't waste your time, we don't waste your energy, we can get your situation resolved. We can get you back on the road," Judge Young said.

As noted at the end of the earlier ILB entry, Judge Young was suspended for thirty days by the Supreme Court, but the Court has not yet issued a promised opinion delineating when the suspension is to be served.

Posted by Marcia Oddi on Tuesday, January 11, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Connie Ellis, et al. v. City of Martinsville, et al. , a 23-page opinion, Judge Brown writes:

In John G. Cooper v. State of Indiana , a 15-page opinion, Judge Baker writes:
Today we decide an issue of first impression regarding the application of double jeopardy principles when a defendant's sentence is enhanced under the firearm enhancement statute following a conviction for reckless homicide. We conclude that double jeopardy principles are not implicated in this instance.

Appellant-defendant John G. Cooper appeals the five-year sentence that was imposed under the Firearm Enhancement Statute,1 following the jury's determination that he knowingly or intentionally used a firearm in the commission of Reckless Homicide,2 a class C felony. Specifically, Cooper argues that the five-year enhancement cannot stand because it is neither “reasonable nor logical to infer that Cooper used [a firearm] in a knowing or intentional manner to recklessly kill” the victim. Thus, Cooper claims that the evidence was insufficient to support the enhancement. In the alternative, Cooper contends that double jeopardy principles bar the enhancement because “both the conviction and the enhancement were based on the single act of killing [the victim] with a firearm.”

Finally, Cooper contends that the thirteen-year aggregate sentence was inappropriate when considering the nature of the offense and his character. Concluding that Cooper was properly sentenced under the Firearm Enhancement Statute and finding that Cooper's sentence was appropriate, we affirm the judgment of the trial court.

NFP civil opinions today (1):

Gloria J. Domelle v. Charles and Maria Barman (NFP)

NFP criminal opinions today (5):

James Eugene Roberts v. State of Indiana (NFP)

Marvin M. Willis v. State of Indiana (NFP)

Joseph Fields v. State of Indiana (NFP)

Donald Woolsey v. State of Indiana (NFP)

Anthony M. Jessie v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 11, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Judges no strangers to balancing security "

MSNBC's Carrie Dann has a long story today that begins:

WASHINGTON — As Americans grapple with the Tucson shootings and congressional lawmakers reexamine changes in their personal security measures, members of the judiciary branch are also mourning the loss of one of their own — a dreaded occurrence for a community that has faced mounting threats of violence in recent years.

U.S. District Judge John M. Roll was among the six people killed Saturday when he dropped by a community event held by Rep. Gabrielle Giffords shortly before 22-year-old Jared Loughner opened fire.

While it appears that Roll was not a specific target, his death — especially in light of the scores of threats he received earlier in his career — underscored the safety risks members of the judiciary branch at all levels have faced for decades.

Later in the story:
Many judges began taking additional precautions after a Chicago district judge’s husband and mother were found murdered in her home in 2005. Then-Chief Justice William Rehnquist assembled a special panel of officials at the time to assess how security for members of the judiciary could be improved.

“We certainly are very mindful of the dangers of those that are in public life,” said Judge Michael Kanne of the United States Court of Appeals for the Seventh Circuit, who now chairs that panel.

But, Kanne added, the financial and personal prices of additional security measures present a puzzle. Congress recently began making funds available for home security devices to all federal judges, for example, but a program for firearms training for all judges has been shelved. * * *

While officials in state courts usually depend upon law enforcement as well as state and local funding to augment their security, the defense of federal judges falls under the purview of the U.S Marshals. The Marshals Service — part of the Department of Justice — is responsible for the protection of approximately 10,000 members of the federal judiciary and federal prosecutors.

That burden has become weightier as threats against federal judicial officials have ballooned. According to a Justice Department report released last year, almost 6,000 threats were leveled against federal judicial officials between 2002 and 2008. Last year, the Marshals Service investigated and analyzed approximately 1,395 threats and inappropriate communications — nearly three times as many threats recorded in 2003.

ILB: The Chicago federal district judge whose family members were murdered was Judge Joan H. Lefkow. Here are some of the ILB entries from 2005:

Posted by Marcia Oddi on Tuesday, January 11, 2011
Posted to Courts in general

Courts - "Jared Loughner's Federal Trial: Previewing the Tucson Massacre Case"

Here is a good law overview of what to expect in the trial of Tucson shooting suspect Jared Lee Loughner, written by legal analyst Andrew Cohen for Politics Daily.

Judith Clarke will represent Loughner. Here is some brief biographical information via the Washington Post.

Here is a lengthy AP story today headed "Top lawyer to represent accused Arizona gunman," via the Arizona Capitol Times.

[More] William Glaberson of the NY Times has this comprehensive story, headed "Loughner’s Lawyer Is Called a Master Strategist."

[Still More] From the WSJ Law Blog, this story headed "Tale of Two Lawyers: Loughner Case to Pit Pair of Prominent Names."

Posted by Marcia Oddi on Tuesday, January 11, 2011
Posted to Courts in general

Ind. Decisions - Oral argument before SCOTUS tomorrow in Indiana case

Updating this March 12, 2010 ILB entry re the 7th Circuit decision in U.S. v. Sykes, affirming Judge McKinney's sentence enhancement, oral argument will take place tomorrow before the SCOTUS in this case, where the issue, according to the SCOTUSBlog summary, is (in plain English): "Whether fleeing the police in a car, after being ordered to stop, constitutes a 'violent felony' within the meaning of the Armed Career Criminal Act, which imposes heightened sentences for such violent felonies."

The SCOTUSBlog page also includes link to the documents in the case. Indianapolis attorney William E. Marsh, of Indiana Federal Community Defenders, is counsel of record on the petitioner's merits brief and will be arguing the case for Sykes.

Posted by Marcia Oddi on Tuesday, January 11, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Appeals Court Hears Case Against Tax Help Company: Company Accused Of Misleading Customers"

Yesterday's oral argument before the Court of Appeals in the case of JK Harris & Company, LLC, vs. Ronald Sandlin appears to be worth watching. From the summary provided by the COA before the argument:

In this case, Appellee Ronald Sandlin entered into a contract for professional tax relief services with Appellant JK Harris Co. JK Harris's attempt to resolve Sandlin's issues with the IRS was not successful. Sandlin filed a complaint in Marion Superior Court against JK Harris on behalf of himself and all others similarly situated alleging statutory deception and unjust enrichment as class claims, and negligence and breach of fiduciary duty as individual claims. Sandlin also filed a motion for class certification. JK Harris did not respond to either the complaint or to Sandlin's motion for class certification. The trial court granted Sandlin's motion for class certification. Also, without holding a hearing on the matter, the trial court entered a default judgment against JK Harris. JK Harris appeals the decision of the trial court to certify a class action and entry of default judgment against it. JK Harris also argues that the trial court lacked subject matter jurisdiction because the contract between the parties has a binding arbitration clause. The Scheduled Panel Members are: Judges Baker, Najam and Mathias.
Indy 6News was there and had this story last evening. Some quotes from the story, which also has a link to a worth watching video featuring 6News consumer reporter Rafael Sanchez:
Attorneys for Ron Sandlin, of Indianapolis, and others argue that the company, through persuasive TV commercials, makes it appear as though it's something that is done routinely, when, in fact, it's very rare.

Five years ago, Sandlin said he paid JK Harris about $4,500 after he said his tax bill went from $29,000 to about $300,000.

"Here I am today; they took my money, told me no deal, no nothing," he said Monday. "(JK Harris hasn't) done anything for me except put me further and further in debt."

The attorney for JK Harris said the lower court overstepped its bounds, adding that the only resolution for Sandlin is to accept the company's arbitration process or start the case over.

"Let's hear evidence. Let's have witnesses raise their right hands, swear under oath, present exhibits, tell exactly what they've done or haven't done," said company attorney Gary Miller. "Let the courts and the justice system work through it."

Watching the few seconds of the 6News video showing the actual argument, I was struck by the big poster/chart one of the attorneys was using. This entire COA oral argument from 1/10/2011 is archived online; access it here.

Posted by Marcia Oddi on Tuesday, January 11, 2011
Posted to Indiana Courts

Ind. Gov't. - "Deal would make Duke No. 1: Buying Progress Energy would create biggest U.S. electric utility"

Today, another in what is now a long list of great John Russell / Indianapolis Star stories involving Duke Energy. In that regard, the most interesting parts of Russell's story today deal with Jim Rogers, CEO of Duke Energy Corp. Some quotes:

Over the years, as he built his empire, Rogers has charmed lawmakers and regulators, schmoozed with environmentalists, appeared on Stephen Colbert's comedy program and shared meals with his toughest opponents.

He hasn't always won over his opponents, many of whom attacked his plans to build more coal-fired generating plants as bad for consumers and the environment. But they respected his ability to turn on the salesman's charm and often get what he wanted.

"If you don't understand how smart and how competitive Jim Rogers is, then you don't belong in the same room at the same time playing the same poker game, because a fool and his money are soon parted, and you're going to walk out of there with all your money gone and Mr. Rogers having most of it," Mike Mullet, then counsel to the Citizens Action Coalition of Indiana, told the Indiana Utility Regulatory Commission in 2007 at a hearing about Duke's plan to build a coal-gasification plant in Edwardsport, Ind.

Posted by Marcia Oddi on Tuesday, January 11, 2011
Posted to Indiana Government

Ind. Courts - CJ Shepard changes speech title; here is the backstory

When the ILB learned on Sunday that the CJ's press office was announcing a change to what had become an unfortunate title for the State of Judiciary address, it didn't seem to be a story. Today, however, Maureen Hayden, now the statehouse bureau chief for CNHI’s Indiana newspapers, and who for many years reported for the Evansville Courier & Press, has provided the backstory. Some quotes from the CNHI story, as published today in the Terre Haute Tribune Star:

INDIANAPOLIS — After the weekend shooting of an Arizona congresswoman, Indiana Supreme Court Chief Justice Randall Shepard changed the title of a speech he’s scheduled to give Wednesday at the Indiana Statehouse.

On Monday, his staff announced that his State of the Judiciary speech has been retitled from “The Gang That Could Shoot Straight‚” to “Burdened but Unbowed.” * * *

“I liked it better before the congresswoman was shot than after,” said a somber Shepard.

It wasn’t just political correctness that he had in mind. Thirty years ago, Shepard’s political mentor, friend and former boss, Evansville Mayor Russell Lloyd Sr., was shot and killed by a deranged woman less than three months after leaving office. Shepard had served as Lloyd’s executive assistant.

The news over the weekend that U.S. Rep. Gabrielle Giffords of Arizona had been shot along with 18 others while outside a Tucson grocery store brought back painful memories, Shepard said. * * *

The Lloyd tragedy was marked by a seemingly senseless act of violence as well. On March 19, 1980, Lloyd was shot and killed after answering the door of his home. The shooter was a mentally ill woman who was angry with city officials over a dispute involving her home. She thought Lloyd was still mayor, even though he’d left office almost three months earlier. Julie Van Orden was found guilty but mentally ill in the Lloyd killing. She served 20 years of her prison sentence and became eligible for early release in 2000. But just days before she was to be set free, a judge ordered her to be committed to the Logansport State Hospital for mental evaluation. While there, she stabbed a psychiatric worker and was later convicted and sentenced to 50 years for attempted murder.

The deadly incident in Tucson was on the mind of other officials in the Statehouse as well.

Posted by Marcia Oddi on Tuesday, January 11, 2011
Posted to Indiana Courts

Ind. Courts - More on "Murder trial awry: Suspect hits his lawyer"

Updating this ILB entry from Dec. 14, 2010, Rebecca S. Green of the Fort Wayne Journal Gazette reports today:

FORT WAYNE – Another judge will handle the case of accused robber-slayer Delmas Sexton, whose trial was delayed after he struck his court-appointed attorney in the face on the first day.

According to court records, Elkhart County Circuit Judge Terry Schewmaker was appointed as special judge to handle the case. He replaces Huntington County Circuit Judge Thomas Hakes, who was serving as special judge. Hakes filed paperwork removing himself from the case Friday. * * *

Sexton’s repeated filings of lawsuits against judges, law enforcement and others, as well as a number of reported threats of violence, have made it difficult for the court to find judges who can handle the cases. None of Allen County’s criminal judges can do so.

Although it is unclear why Hakes asked to be removed from the case, the Huntington County Sheriff’s Department issued a statement Monday afternoon saying they received threats against Hakes on Friday. The Indiana State Police are investigating, and the name of the person making the threat has not been released, according to the statement.

The Allen County Public Defender’s Office has also been singled out by Sexton, so after Sexton struck his attorney last month, Hakes asked the Indiana State Public Defender’s Office to handle the case.

According to court documents, the state public defender’s office will find an attorney to represent Sexton, though he repeatedly tries to represent himself.

A hearing later this month is scheduled.

Posted by Marcia Oddi on Tuesday, January 11, 2011
Posted to Indiana Courts

Monday, January 10, 2011

Law - "Law schools should stop being "wannabe" research institutions and do a better job of training their students ..."

A companion piece to this ILB entry from Sunday on law school costs is this story dated Jan. 9th from Katherine Mangan of The Chronicle of Higher Education on law school training. It begins:

Law schools should stop being "wannabe" research institutions and do a better job of training their students in the hands-on skills that prospective employers complain that many of them lack, according to speakers at a weekend meeting here.

That shift is sorely needed at a time when graduates face a dismal job market and big law firms are balking at training new associates, some legal educators noted during a panel discussion at the annual meeting of the Association of American Law Schools.

The story features law school deans and profs fearing becoming "trade schools," preferring to "focus more on research so they will appear more elite." More from the story:
"Law firms no longer want to train people because clients don't want to pay for it. They're pushing it on us," Ms. Rapoport said.

One audience member pointed out that skills training is "labor-intensive and expensive."

"We all know we need more skills training, but we need to find ways to change the culture so we can get there," said Gary R. Roberts, dean of Indiana University School of Law. Faculty members are rewarded for theoretical scholarship, he said. "My university won't tenure them if they don't have that," he said, and the American Bar Association "won't accredit my school if my faculty aren't protected by a tenure system."

Posted by Marcia Oddi on Monday, January 10, 2011
Posted to General Law Related

Ind. Gov't. - Upcoming addresses

Posted by Marcia Oddi on Monday, January 10, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (4):

In Francisco Onan Delao v. State of Indiana , an 8-page opinion, Judge Kirsch writes:

Following a jury trial, Francisco Onan Delao (“Delao”) appeals his four convictions for dealing in cocaine,1 each a Class A felony. Delao raises two issues that we restate as: I. Whether the trial court erred when it admitted into evidence audio recordings of the drug transactions; and II. Whether Delao's sentence was inappropriate in light of the nature of the offenses and the character of the offender. We affirm. * * *

At the beginning of trial, the trial court explained to counsel for both parties that, because of logistics and courtroom equipment, bench conferences would not be recorded, and the court advised counsel that they would need to inform the court if they desired those to be “on the record.” During the State's case-in-chief, the State moved to admit the four audio recordings of the transactions. The September 7, 2007 audio recording was admitted without objection. The State also moved and was granted permission to publish to the jury the audio recording, and a translator in the courtroom translated portions of the conversation that were spoken in Spanish. Thereafter, Delao objected during unrecorded sidebar conferences to the admission of the audio recordings of the second, third, and fourth transactions. The trial court overruled the objections and admitted the recordings into evidence. The audio recordings were played for the jury, and the translator again translated those portions that were in Spanish. * * *

“On appeal, the appellant carries the burden of presenting a record for sustaining his argument.” House v. State, 535 N.E.2d 103, 109 (Ind. 1989) (objection made during unrecorded sidebar conference was not preserved and defendant should have corrected any deficiency in record according to appellate rule allowing for reconstruction of alleged missing portions of transcript). In this case, Delao has failed to present a sufficient record for our review and, accordingly, has waived any error in the admission of the audio recordings of the cocaine transactions occurring on September 11, September 25, and October 1, 2007.

In State of Ohio Conviction Against Mickey Shawn Gambler , a 7-page opinion, Chief Judge Robb writes:
The Indiana Department of Correction (“DOC”) appeals the trial court’s order removing Mickey Shawn Gambler from the Indiana sex offender registry. DOC raises one issue for review, which we restate as: whether the trial court erred in ordering Gambler removed from the Indiana sex offender registry without providing notice to the appropriate parties or holding a hearing. Concluding the trial court erred by not providing notice to the appropriate parties or holding a hearing, we reverse and remand. * * *

Consequently, we reverse the trial court’s order for the Allen County Sheriff and DOC to remove Gambler from the sex offender registry, and on remand, order the trial court to dismiss the case without prejudice subject to further proceedings in the event Gambler files a sufficient petition.

Conclusion. Gambler’s letter was insufficient to constitute a petition to be removed from the Indiana sex offender registry. DOC presents a prima facie case that the trial court erred in concluding otherwise, failing to provide notice to the appropriate government actors, failing to hold a hearing, and ultimately erroneously granting Gambler’s request to be removed from the sex offender registry.

ILB note: The Allen County Superior Court's action was in response to an April 23, 2010 letter from Gambler. The Court's order to the DOC stated in part: "Pursuant to Indiana Code and Wallace v. State, 905 N.E. 2d, 371 [sic] (Ind. 2009), the Defendant is not required to register as a sex offender or violent offender on the Indiana State Registry as a result of this conviction in Ohio. WHEREFORE, the Sheriff of Allen County and Indiana Department of Correction are ordered to remove Defendant’s name from the Indiana Sex/Violent Offender Registry, based upon conviction in this matter. . . .."

In Anthony Taylor v. State of Indiana , an 11-page opinion involving a pro se appellant, Chief Judge Robb writes:

Anthony Taylor appeals the post-conviction court’s denial of his petition for permission to file a belated appeal of its denial of his petition for post-conviction relief, raising as the sole issue for our review whether the post-conviction court abused its discretion in denying him permission to file a belated appeal. Concluding, pursuant to our inherent authority to grant equitable relief that Taylor should be allowed to file a notice of appeal considered timely, we reverse and remand. * * *

[T]his court has inherent power to entertain an appeal after the time permitted has expired. We exercise this inherent power to grant equitable relief “only in rare and exceptional circumstances, such as in matters of great public interest, or where extraordinary circumstances exist.” * * * Such is the situation with this case. Taylor, acting pro se, and with limited resources and ability to monitor the progress of his case, did everything he knew to do to bring this case to the appellate courts. The record supports his assertion that he corresponded with the post-conviction court around the time of his move from one DOC facility to another. Despite specifically requesting a copy of this correspondence in his notice of appeal, it was not supplied to him. The CCS shows his Trial Rule 72 motion was both granted and denied, and further shows that Taylor was supplied with both orders in response to his motion for ruling on petition for permission to file belated appeal, though only the order denying his Trial Rule 72 motion appears in the record. What appears to be a handwritten ruling on one of Taylor’s motions has been obscured, thereby further confusing the record on review. The post-conviction court distributed an order to Taylor at his prior address even after being undeniably notified of his new address multiple times. And, as Taylor points out, this particular court has a documented history of failing to organize and keep abreast of its post-conviction relief files. See In re Hawkins, 902 N.E.2d 231, 242-43 (Ind. 2009) (imposing discipline upon trial court judge for violating to the appellate courts. * * *

In sum, what transpired after Taylor filed his petition for post-conviction relief is confusing even to us; it is little wonder Taylor was confused about how to proceed. The CCS, which acts as the court’s official record, T.R. 77(B), is riddled with inaccuracies and contradictions and does not match the pleadings and orders in the record. The documents compiled by the clerk pursuant to Taylor’s notice of appeal are incomplete and in one instance, seem to have been altered. And most relevant to Taylor’s specific allegations in his Trial Rule 72 motion, the post-conviction court did not send notice of at least one order to his current address even though the record undeniably supports the court’s knowledge of his correct address. Under these circumstances, and considering Taylor should have prevailed on the merits of his Trial Rule 72 motion, we believe Taylor has demonstrated the extraordinary circumstances justifying exercise of our inherent power to grant equitable relief; in this case, that relief being the opportunity to appeal the denial of his petition for post-conviction relief. We therefore remand this case to the post-conviction court with instructions to accept a notice of appeal from the denial of Taylor’s petition for post-conviction relief within thirty days of this opinion being certified.

In Brian S. Christie v. State of Indiana, a 6-page opinion, Chief Judge Robb writes:
Brian Christie appeals the trial court’s order revoking his community corrections placement and ordering him to serve the entirety of his remaining sentence at the Department of Correction (“DOC”). For our review, Christie raises two issues: 1) whether the trial court properly took judicial notice of a new conviction entered in a different Indiana court, and therefore had sufficient evidence Christie violated his conditions of community corrections placement; and 2) whether the trial court properly ordered Christie to serve his entire remaining sentence at the DOC. Concluding the trial court’s judicial notice and its dispositional order were proper, we affirm. * * *

Christie argues the trial court erred by taking “judicial notice, not of its own records, but of the records of another court in an unrelated matter.” In support, Christie cites case law concerning the propriety of judicial notice of court records. Both Christie and the State overlook Indiana Rule of Evidence 201[1] * * *

Thus, even in a proceeding governed by the Evidence Rules, a trial court may take judicial notice of records of another Indiana court, and may do so at any stage of the proceeding. Probation revocation hearings, to which the Evidence Rules do not apply, Evid. R. 101(c)(2), allow even more flexibility in the admission of evidence, and the same more flexible standard applies in community corrections revocation hearings. Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999) (“[W]e hold that in probation and community corrections placement revocation hearings, judges may consider any relevant evidence bearing some substantial indicia of reliability.”). Therefore, the trial court was permitted to take judicial notice of court records showing Christie’s new conviction in Knightstown Town Court. Further, because judicial notice of these records was proper, Christie’s counsel was not ineffective for failing to object to the same. * * *
______
[1] We are concerned that neither party, particularly the State, cited Rule 201(b)(5) in its appellate brief, as the pertinent amendment went into effect on January 1, 2010 – over one year ago.

ILB note: Rule 201(b) is also important in the Dec. 29, 2010 opinion by J. Vaidik, In Paternity of P.R., et al.; H.B. v. J.R. , which the ILB listed as a "must read." J. Robb and J. May concurred in that opinion.

NFP civil opinions today (1):

Kevin D. Ables v. Wray J. Ables (NFP)

NFP criminal opinions today (4):

Marshall Sims v. State of Indiana (NFP)

George Burnett v. State of Indiana (NFP)

Mrtyrone Demon Metcalf v. State of Indiana (NFP)

Justin Trevor Stetler v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 10, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Request for different prosecutor in David Camm murder case is denied"

Ben Zion Hershberg of the Louisville Courier Journal is reporting:

A defense request that a different prosecutor be appointed for David Camm’s third murder trial has been denied.

Special Judge Jon A. Dartt denied Camm’s request to replace Floyd County Prosecutor Keith Henderson on Friday, saying that the deal Henderson signed in May 2009 to write a book about the case doesn’t represent an “actual” conflict of interest, which would be required to replace him. * * *

Stacy Uliana, an attorney for Camm, said Monday that the latest ruling will be appealed.

[More] Here is a story from Fox 41.

Jerod Clapp of the New Albany News & Tribune reports this evening:

SPENCER COUNTY — Floyd County Prosecutor Keith Henderson will be allowed to prosecute David Camm’s third triple-murder case, according to a Friday court ruling.

Also, another ruling filed by Warrick County Special Judge Jonathan Dartt says the court doesn’t require Henderson to turn over a manuscript of the book he was working on about the case.

Camm’s defense requested a special prosecutor because of a book deal Henderson had after Camm’s second guilty verdict was issued. Henderson’s contract for the book was canceled after that conviction was overturned.

Dartt’s ruling that denied a special prosecutor says since the book deal was canceled, the defense didn’t present any evidence to suggest an actual conflict of interest in Henderson’s involvement in the case.

In the ruling requesting a manuscript of Henderson’s book, it says his agent is in possession of it and Henderson stated he had never seen, read or had the book in his possession. Henderson used a co-author for the book.

The ruling further states if the defense should get a copy of the manuscript, it “shall be kept sealed and confidential until further Order of the Court.”

A third trial date has yet to be set for Camm, but the ruling says it will be determined after Camm’s defense decides whether to appeal the court’s decision to keep Henderson as the prosecutor.

Stacy Uliana, an attorney defending Camm, said she intends to appeal the court’s decision keeping Henderson as the prosecutor.

“We’ve already invested a year into Mr. Henderson’s book,” Uliana said. “We’re not going to stop now.”

Posted by Marcia Oddi on Monday, January 10, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "In Illinois, a Giant Deficit Leads to Talk of a Giant Tax Increase"

This long story from Monica Davey of the NY Times, dated Jan. 9th, begins:

SPRINGFIELD, Ill. — With Illinois’s budget crisis reaching dizzying, desperate levels, lawmakers here over the weekend were seriously pondering something that would have been unimaginable even a few months ago: a 75 percent increase in the state’s income tax. * * *

In a moment when states around the country are wrestling with withered revenues, Illinois faces a deficit of at least $13 billion; more than $6 billion in unpaid bills to social service agencies, schools and funeral homes; the most underfinanced state pension system; and growing signs of concern from bond investors.

“We are very close to things becoming unraveled,” said Richard F. Dye, the co-author of a study released last week by a University of Illinois institute titled “Titanic and Sinking: The Illinois Budget Disaster.” The report suggested that doing nothing is simply no longer an alternative.

“It won’t take long,” Mr. Dye said, “for this backlog of bills to be so outrageous that people will not deal with the state.”

From this morning's Chicago Tribune, this story by Rick Pearson and Monique Garcia, headlined "Quinn mum on possible tax increase: State leaders not tipping hand ahead of swearing-in ceremonies." From late in the story:
The most daunting challenge for Quinn is the state's financial dilemma, an expected $15 billion deficit and $8 billion backlog of overdue bills — and the refusal of politicians to deal with it.

Quinn and other elected statewide officials will have only moments to celebrate their election victories at the traditional Inaugural Ball on Monday night.

Against the backdrop of the bleak budget and economic challenges that lie ahead, researchers at the University of Illinois' Institute of Government and Public Affairs issued a sobering report that concluded that to quickly balance its budget, the state would have to more than double its income or sales tax, both politically unpalatable.

Posted by Marcia Oddi on Monday, January 10, 2011
Posted to Indiana Government

Environment - More on "New Ohio Gov. Kasich names heads of Ohio EPA"

Updating these two ILB entries from the end of December, Spencer Hunt of the Columbus Ohio Dispatch reports today in a long story that begins:

When John Kasich introduced the new director of the Ohio Environmental Protection Agency last month, air-, ground- and water-pollution concerns were barely mentioned.

Kasich, then governor-elect, said Scott Nally's main goal is to cut bureaucratic delays at the Ohio EPA that hold up pollution permits businesses must obtain before they can begin operating.

The delays, the governor said, create a backlog and stall job creation.

"Guys around the state, you mention the EPA to them and they have palpitations," Kasich said. "Delays and paperwork and bureaucracy is going to come to an end."

Kasich boasted that Nally, an assistant commissioner in Indiana's Department of Environmental Management, cut an 800-permit backlog in Indiana down to five. He said Ohio also has a backlog of 800 permits at any given time, and Nally will cut it to four.

Nally responded to a request for an interview by e-mail. "The permit issue (in Ohio) you mention will be accomplished by establishing tracking and accountability, both internal and external," he wrote.

Indiana environmental advocates said not a lot is known about Nally.

"He was more of a behind-the-scenes, administrative-type person at the agency, rather than a point person on policy," said Tim Maloney, senior policy director for the Hoosier Environmental Council.

Posted by Marcia Oddi on Monday, January 10, 2011
Posted to Environment

Ind. Decisions - 7th Circuit decision re Twombly

From an entry today in the blog Antitrust Today:

In an opinion written by antitrust expert Judge Richard Posner, the U.S. Court of Appeals for the Seventh Circuit has rejected a bid by defendant cell phone companies to throw out a class action alleging that the companies conspired to fix text message prices.

The Seventh Circuit held that the plaintiffs’ second amended complaint in In re: Text Messaging Antitrust Litigation contained enough circumstantial evidence to allow the case to proceed to discovery. The decision a applies – and clarifies – the heightened federal pleading standards laid out recently by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.

In rejecting a bid by cell phone companies to throw out a putative class action alleging that the companies conspired to fix text message prices, the Seventh Circuit held that the plaintiffs’ second amended complaint contained enough circumstantial evidence to allow the case to proceed to discovery.

Here is a Jan. 7th story headed "Posner Tweaks 'Twombly' in 7th Circuit Refusal to Dismiss Text Message Class Action" from Alison Frankelof American Lawyer. It begins:
Boy was Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit eager to weigh in on antitrust pleading standards in the post-Twombly age! A mere four weeks after several wireless carriers filed a request for permission to pursue an interlocutory appeal of Chicago federal district court judge Matthew Kennelly's refusal to dismiss a price-fixing class action against them, Judge Posner produced a 13-page ruling that not only affirms Judge Kennelly's ruling, but seems to lower the bar for antitrust complaints in the Seventh Circuit. And he did it without merits briefing or oral argument from the parties.

The quick action is particularly noteworthy because a separate Seventh Circuit panel is considering the Twombly pleading standard in an interlocutory appeal in the In re Potash antitrust class action. That case has already been fully briefed and argued, and awaits a ruling.

The panel included included Judges Diane Wood and John Tinder.

Posted by Marcia Oddi on Monday, January 10, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Still more on: Changes to death certificate system in Indiana

Updating this ILB entry from yesterday, Ella Johnson reports today in the Evansville Courier & Press in a long story that begins:

Families now should be able to obtain death certificates necessary to collect on life insurance policies and pensions and complete burial arrangements faster thanks to Indiana's new electronic system that makes it easier for local officials to complete death records.

However, doctors, funeral directors and coroners could face criminal charges and a $1,000 fine for failure to complete information in the Indiana Death Registry System in a timely manner. They are mandated by law to use the system.

"I understand the need to do it," said Dr. Donald Brake, a private family practice physician affiliated with St. Mary's Medical Center. He said the new system will improve efficiency and transparency in death records. However, Brake is concerned about the penalty for noncompliance.

"I think that is kind of ridiculous," Brake said.

On Dec. 8, he applied for a personal identification number to access the web-based registry and received a confirmation e-mail that his information had been received. Nearly one month later, Brake still had not received the pin.

"I assume there is going to be a grace period, or at least I hope there is," Brake said. He finally gained access to the system last week after calling the state health department.

Jan. 1 was the deadline for all death records in Indiana to be filed using the web-based registry, ending a decades-old practice of shuffling paperwork between hospitals, funeral homes, county health departments and, in some cases, the county coroner's office before the information was filed with the state.

Posted by Marcia Oddi on Monday, January 10, 2011
Posted to Indiana Government

Ind. Law - More on: Bill introduced re divying up of civil forfeiture monies

Updating this ILB entry from last Wednesday re the introduction of SB 215, Heather Gillers and Tim Evans of the Indianapolis Star, who have written the earlier major stories on civil forfeiture distribution, report today in another long story, headed "Lawmaker wades into forfeiture fight." Some quotes:

Indiana law says schools and law enforcement should receive a cut of the money police seize from criminals. But the statute doesn't make clear how the money should be divided between the two competing interests. * * *

The spat over how the money is divvied up comes as schools and law enforcement agencies struggle to make ends meet in the face of spending cuts and tax caps, foreshadowing a larger battle looming in the General Assembly as lawmakers attempt to craft the next state budget. * * *

[Senator Richard] Bray said his goal in crafting the bill was to ensure that forfeiture funds benefit law enforcement -- whose activities, he pointed out, generate the funds in the first place -- and the Common School Fund, a revolving loan fund for financing education projects and charter schools. * * *

Bray's bill establishes a mathematical formula for dividing up the money. It would send most of the money from small-scale forfeitures to public safety but allow schools to benefit significantly from larger windfalls.

He also is proposing a requirement that the appropriation of law enforcement funds be overseen by elected officials; a $20,000 cap on how much private attorneys can earn on each forfeiture case; and a requirement that the attorney general sign off on any contract with a private attorney. * * *

Bray's bill now moves to the Senate Judiciary Committee, of which he is chairman, for discussion. He said the draft legislation is only a starting point, and he is open to recommendations. One he already is considering would be a requirement similar to a Michigan law that calls for law enforcement agencies to report their forfeitures to the state police for inclusion in an annual report -- an idea that Ogden and forfeiture reform advocates say would add needed oversight to the process.

But there already is concern among some that prosecutors can circumvent the intent of Bray's proposal.

When federal law enforcement officials become involved in a seizure, the U.S. Department of Justice doles out the money based on a specific formula: The federal government keeps 20 percent, the prosecutor gets 20 percent, and the remainder goes to local law enforcement agencies involved in the case.

From 2005 to 2009, about $34 million in forfeiture money from Indiana was funneled through the federal program. About $28 million of it eventually returned to police and prosecutors. But none of that money was required to be placed in the education fund -- and none was.

Bookwalter, the Putnam County prosecutor, said any attempt by state lawmakers to divert more money to schools might just encourage prosecutors and law enforcement agencies to bring in the Department of Justice.

Prosecutors might ask themselves, Bookwalter said, "at what point is it more viable to just go with the feds?"

Posted by Marcia Oddi on Monday, January 10, 2011
Posted to Indiana Law

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, January 9, 2011:

From Saturday, January 8, 2011: From late Friday afternoon, January 7, 2011:

Posted by Marcia Oddi on Monday, January 10, 2011
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/10/11):

Next Thursday, January 13th

Next week's oral arguments before the Supreme Court (week of 1/17/11):

Next Thursday, January 20th

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 1/10/11):

Monday, January 10th

Wednesday, January 12th

Thursday, January 13th

Next week's oral arguments before the Court of Appeals (week of 1/17/11):

Next Tuesday, January 18th

Next Wednesday, January 19th

Next Thursday, January 20th

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, January 10, 2011
Posted to Upcoming Oral Arguments

Sunday, January 09, 2011

Ind. Gov't. - More on: "16 Weeks of this to go?"

Updating this ILB entry from Jan. 6, 2011, Maureen Hayden of the CNHI Indiana Statehouse Bureau had an entertaining wrap-up Saturday on the "first day in the House" in this story (here from the New Albany News & Tribune) that begins:

The Indiana General Assembly got off to a rip-roaring start Wednesday, triggered by the legislative version of a poke in the eye.

It happened just minutes after House members uttered “amen” to an opening prayer that included a plea for them to act in a “godly manner.”

For fans of partisan bickering, it was no doubt a heavenly moment. Others may have been left wondering what the heck was going on.

The day was expected to be largely ceremonial with hearty handshakes and promises to play fairly in the weeks ahead. The new Republican leadership in the House had even prepared remarks along those lines.

But before they could even utter those words, the leadership of the party out of power demonstrated just how much misery they could cause.

House Democrat leaders launched an unexpected and lengthy procedural fight that culminated in a largely symbolic vote — which they lost — over a contentious issue: the so-called “right to work” bill that would outlaw the practice of requiring workers to pay union dues.

Hayden followed up today with this story (here from the Kokomo Herald Bulletin) about House Speaker Bosma's plans "to begin to restore the people’s faith, politicians had to restore civility to their public discourse," inspired by a book by former U.S. Sen. David Boren. Hayden writes:
“I read it cover to cover,” said Bosma.

Last week, as the Indiana General Assembly convened for the 2011 session, he returned to his old position of power as speaker of the Indiana House (held from 2004 to 2006) with admonitions from Boren’s book in mind.

He needed them, he said, after taking a bruising from the minority Democrat leaders who blew up his plans for a peaceful opening day with a contentious procedural skirmish over how bills would be introduced.

Admittedly shaken by the surprise attack, Bosma told reporters afterwards that he’ll continue to extend the hand of bipartisanship — no matter what happens.

“We’ll draw back a bloody hand every once and a while,” he said. “We’ll mop it off and we’ll extend it again to those who are willing to work together for the people of the state of Indiana.”

Just how sincere he is, or even whether he can carry it off given the challenges ahead — including a major education reform agenda and crafting a two-year budget with a projected $1 billion deficit — remains to be seen, say both his supporters and critics.

The former speaker of the House, Democrat Patrick Bauer of South Bend, has been offended by Bosma’s criticism of how he ruled the House over the past four years.

He also didn’t like it when Bosma took the unprecedented move of appointing two Democrats to committee chairmanships — a prize usually reserved for majority members. Bauer has said Bosma put those Democrats there so he could spread blame for any politically charged legislation in the next election. He called the gesture “an olive branch with thorns.”

Others have noted that it’s easy to offer to urge bipartisanship when your party is in control of the House, the Senate, and the Governor’s office. Bosma shrugs off the criticism. “As lifetime observer of this chamber, I believe it can be done,” he said. * * *

[I]n a recent interview with the CNHI Indiana Statehouse Bureau, he said he’s needed more training to help him execute what he’s called a “grand experiment” to rid the House of its long-standing reputation, under both parties, as a haven for crass power politics that benefitted insiders the most.

“I’m dead set on this,’’ Bosma said. “I’ve already warned the new people that this will be one of the most difficult changes for this institution,” he said of the freshmen Republican legislators elected in November. “To go from the partisan bickering model into a more statesmanlike debate, I’ll need their help.” * * *

But there’s plenty of skepticism inside the Statehouse. The decision by Democratic leaders to come out swinging on the first day is evidence of that, Bosma conceded.

“There’s a lot of cynicism in this place,” Bosma said of the Indiana Statehouse. “But it doesn’t have to be that way.”

Posted by Marcia Oddi on Sunday, January 09, 2011
Posted to Indiana Government

Ind. Law - "Social issues return to agenda: GOP majorities reviving bills on abortion, migrants"

Niki Kelly of the Fort Wayne Journal Gazette has an interesting article today on "social issues."

"Social issues," as used in the story, apparently encompasses everything except money issues. Some quotes:

Lawmakers will have more than money issues on their minds this legislative session.

Some hot-button topics already are making waves – on issues as varied as abortion, immigration, sentencing reform and labor unions.

“I honestly think the amount of focus on social issues depends entirely on how quickly the governor’s agenda passes,” said Rep. Win Moses, D-Fort Wayne. “If we have a month to kill at the end, we’ll hear them all then.” * * *

Some of the usual suspects include altering the Indiana Constitution to prohibit gay marriage, which is already state law. There will be another attempt to require doctors who perform abortions to have admitting privileges at local hospitals, similar to an Allen County ordinance.

But there are also some new bills and new versions of old proposals.

Sen. Mike Delph, R-Carmel, is leading the pack with a “birther” bill. Birthers are people who don’t believe President Obama was born in the United States and therefore is ineligible to serve. * * *

Delph’s legislation – Senate Bill 114 – would require presidential candidates to file a certified copy of a U.S. birth certificate along with additional documentation to be on the Indiana ballot.

“It’s healthy to not have this uncertainty and this debate,” he said.

Delph also will carry an immigration bill, although it won’t be filed until next week. He has tried unsuccessfully in the past to move similar legislation. * * *

A number of abortion bills have been filed in both the House and Senate, including one to ban abortions after 20 weeks of pregnancy. * * *

Another bill would require a woman seeking an abortion to have a fetal ultrasound at least 18 hours before the procedure. The woman would also be responsible for the cost of the ultrasound.

Sen. Dennis Kruse, R-Auburn, wants to go further – much further. He has co-authored Senate Bill 290, which would prohibit abortions in Indiana unless a physician determines it is necessary to save the life of the pregnant woman. * * *

Another issue – this one being pushed by Daniels as a way to save money in the state prison system – is sentencing. So far, legislators looking to reclassify, and sometimes reduce, drug and theft crimes have avoided being labeled as soft on crime. * * *

Daniels’ sentencing plan would keep some low-level offenders out of state prisons and refocus some resources at the local level for more drug addiction treatment and probation services.

All these topics are sure to create debate and even a few hard feelings. But the one that could prove most contentious is right-to-work legislation being pushed by Republicans.

Rep. Jerry Torr, R-Carmel, introduced House Bill 1043, which would add Indiana to the list of 22 right-to-work states. In broad terms this means that employees could not be forced to pay union dues as a condition of employment. * * *

The issue created tension on the first day of the session with House Democrats trying to kill the bill procedurally before it even has a hearing.

[More] Dan Carden reports today for the NWI Times under the heading "Plenty of hot issues before state lawmakers." Some quotes:
Indiana Republicans won control of both chambers of the General Assembly in November by promising less government and more freedom.

But a look at the more than 500 legislative proposals already filed shows there still are plenty of things state lawmakers want you to do, want you to stop doing and want you to pay for. And there are even a few days left until the House and Senate bill filing deadlines this week.

Among the most popular topics of legislation in 2011 are abortion, guns, sex crimes, state rights and taxes. Here are a few of the proposals in each category. * * *

STATE RIGHTS: Senate Bill 298 and House Bill 1078 explicitly prohibit the application of any foreign law to any legal situation in Indiana. Senate Bill 114 requires a candidate for president of the United States to submit a copy of his or her birth certificate to the Indiana secretary of state in order to appear on the ballot. Meanwhile, several proposed resolutions, which lack the force of law, condemn the perceived expansion of federal power and assert Indiana's rights under the 10th Amendment to the U.S. Constitution.

Posted by Marcia Oddi on Sunday, January 09, 2011
Posted to Indiana Law

Law - "Is Law School a Losing Game?"

A very long story today in the Sunday NY Times, beginning on the front page of the Business section and continuing to two full inside pages, reported by David Segal. A few quotes:

Mr. Wallerstein, who can’t afford to pay down interest and thus watches the outstanding loan balance grow, is in roughly the same financial hell as people who bought more home than they could afford during the real estate boom. But creditors can’t foreclose on him because he didn’t spend the money on a house.

He spent it on a law degree. And from every angle, this now looks like a catastrophic investment.

Well, every angle except one: the view from law schools. To judge from data that law schools collect, and which is published in the closely parsed U.S. News and World Report annual rankings, the prospects of young doctors of jurisprudence are downright rosy.

In reality, and based on every other source of information, Mr. Wallerstein and a generation of J.D.’s face the grimmest job market in decades. Since 2008, some 15,000 attorney and legal-staff jobs at large firms have vanished, according to a Northwestern Law study. Associates have been laid off, partners nudged out the door and recruitment programs have been scaled back or eliminated. * * *

In 1997, when U.S. News first published a statistic called “graduates known to be employed nine months after graduation,” law schools reported an average employment rate of 84 percent. In the most recent U.S. News rankings, 93 percent of grads were working — nearly a 10-point jump.

In the Wonderland of these statistics, a remarkable number of law school grads are not just busy — they are raking it in. Many schools, even those that have failed to break into the U.S. News top 40, state that the median starting salary of graduates in the private sector is $160,000. That seems highly unlikely, given that Harvard and Yale, at the top of the pile, list the exact same figure.

How do law schools depict a feast amid so much famine?

“Enron-type accounting standards have become the norm,” says William Henderson of Indiana University, one of many exasperated law professors who are asking the American Bar Association to overhaul the way law schools assess themselves. “Every time I look at this data, I feel dirty.”

IT is an open secret, Professor Henderson and others say, that schools finesse survey information in dozens of ways. And the survey’s guidelines, which are established not by U.S. News but by the American Bar Association, in conjunction with an organization called the National Association for Law Placement, all but invite trimming.

A law grad, for instance, counts as “employed after nine months” even if he or she has a job that doesn’t require a law degree. Waiting tables at Applebee’s? You’re employed. Stocking aisles at Home Depot? You’re working, too.

Number-fudging games are endemic, professors and deans say, because the fortunes of law schools rise and fall on rankings, with reputations and huge sums of money hanging in the balance. You may think of law schools as training grounds for new lawyers, but that is just part of it.

They are also cash cows.

Tuition at even mediocre law schools can cost up to $43,000 a year. Those huge lecture-hall classes — remember “The Paper Chase”? — keep teaching costs down. There are no labs or expensive equipment to maintain. So much money flows into law schools that law professors are among the highest paid in academia, and law schools that are part of universities often subsidize the money-losing fields of higher education.

“If you’re a law school and you add 25 kids to your class, that’s a million dollars, and you don’t even have to hire another teacher,” says Allen Tanenbaum, a lawyer in Atlanta who led the American Bar Association’s commission on the impact of the economic crisis on the profession and legal needs. “That additional income goes straight to the bottom line.”

Posted by Marcia Oddi on Sunday, January 09, 2011
Posted to General Law Related

Courts - "Arizona Federal Judge, John Roll, 63"

The WSJ Law Blog has this obituary of John McCarthy Roll, the chief judge of the District of Arizona, shot to death yesterday in Arizona along with a number of others. Others papers' stories also are linked.

Posted by Marcia Oddi on Sunday, January 09, 2011
Posted to Courts in general

Ind. Gov't. - More on: Changes to death certificate system in Indiana

Updating this ILB entry from Dec. 6, 2010, discussing a death certificate changeover to be effective Jan. 1, 2011, all has not gone totally smoothly according to two reports the ILB has seen. At least initially. Here is a Jan. 7, 2011 Indy 6 story that begins:

A Delaware County family claims confusion over a change to state law regarding death certificates delayed the cremation of a loved one.

Charles Lee Turner, 62, died Dec. 25, but his daughter, Tinna Elliott, had a hard time having him cremated because she couldn't get his death certificate, 6News' Rafael Sanchez reported.

A paper death certificate was apparently issued before Dec. 30, but county offices were closed on New Year's Eve, so the death record had to comply with a change in state law that now requires all death information to be filed electronically.

Today Shari Rudavsky of the Indianapolis Star reports in a story headed "With death certificates, efficiency takes a toll: New system has added to grief." The story begins:
The first shock was her father's death the day before New Year's Eve. But Sonia Ardeel was even more surprised to discover how difficult getting a death certificate -- necessary to grant her father's wish to be cremated -- would be.

A new system that transformed the death certificate from a paper document to an electronic record lies behind the nightmare that Ardeel, 40, and her family have experienced. The system, which went into effect Jan. 1, requires funeral homes and doctors to sign up for a four-digit PIN to enter a record.

In announcing its new Indiana Death Registration System, state health officials said the Web-based process would speed up the issuing of death certificates.

But as the case of Robert Martinez, Ardeel's father, shows, not every doctor has signed up. If the doctor responsible for declaring a patient's death or the funeral home handling the body is not in the state system, the death certificate likely will be delayed.

For a family in Muncie, the switch to the new system meant a man who died Dec. 24 was not cremated until 14 days later.

For Ardeel, the delay has lasted more than a week. Since a heart attack claimed Martinez's life, his death certificate has not been finalized; his body is in a morgue, awaiting cremation. On Saturday afternoon, the hospital called Ardeel and said it signed the death certificate. She is now waiting to hear from the funeral home.

Posted by Marcia Oddi on Sunday, January 09, 2011
Posted to Indiana Government

Saturday, January 08, 2011

Ind. Gov't. - "Hands-On Job Has Deputy Mayor Taking His Lumps"

Updating entries from the end of December 2010 that were headed "Former two-term Indianapolis Mayor Stephen Goldsmith is making a name for himself as New York's deputy mayor," David W. Chen of the NY Times today gives an overview of Goldsmith as NYC Deputy Mayor. The short version: "Deputy Mayor Stephen Goldsmith is in charge of operations, but his big assignment from Mayor Michael R. Bloomberg is to reinvent the city government."

Posted by Marcia Oddi on Saturday, January 08, 2011
Posted to Indiana Government

Friday, January 07, 2011

Ind. Decisions - Transfer list for week ending January 7, 2011

Here is the Clerk's transfer list for the week ending January 7, 2011. It is two pages (and 28 cases) long.

Four transfers were granted for the week ending Jan. 7, 2011:

__________

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 Friday, January 07, 2011
Posted to Indiana Transfer Lists

Courts - "Top Court in Massachusetts Voids Foreclosures by 2 Banks"

A Reuters story this afternoon posted by the NY Times begins:

In a ruling that may affect foreclosures nationwide, the Massachusetts high court has voided the seizure of two homes by Wells Fargo & Company and US Bancorp after the banks failed to show that they held the mortgages at the time of the foreclosures.

Friday’s decision by the Supreme Judicial Court of Massachusetts, which upheld a lower court ruling, is among the earliest to address the validity of foreclosures conducted without full documentation. * * *

In the ruling, Justice Ralph D. Gants wrote for a unanimous court that Wells Fargo and US Bancorp lacked authority to foreclose after having “failed to make the required showing that they were the holders of the mortgages at the time of foreclosure.” Massachusetts is one of 27 states that do not require court approval to foreclose.

Here is the opinion.

Posted by Marcia Oddi on Friday, January 07, 2011
Posted to Courts in general

Ind. Law - More on "What the hell is going on with female lawyers in Indiana?"

Updating this ILB entry from Jan. 4, 2011, Carrie Ritchie of the Indianapolis Star reports today:

A Marion County deputy prosecutor was fired Thursday, hours after she was formally charged with attacking a woman during a domestic dispute.

Kirmille Welbon, 28, used to handle misdemeanor cases for the prosecutor's office but was suspended without pay after she was arrested Sunday night.

The prosecutor's office announced its decision to fire her Thursday afternoon after a special prosecutor in a morning court hearing formally charged her with felony residential entry and misdemeanor charges of battery with injury and criminal trespass.

"In this case, given the severity of the charges, we felt the appropriate action was to terminate her employment," said Laurel Judkins, chief counsel for the prosecutor's office.

Welbon had worked for the prosecutor's office since August 2009 and made an annual salary of about $54,000, including benefits.

Posted by Marcia Oddi on Friday, January 07, 2011
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (0):

Anthony V. Collins-Caudill v. State of Indiana (NFP)

Courtney Long v. State of Indiana (NFP)

Lester Lyle v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 07, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Does access to public records include reasonably prompt access?

The Indiana Public Access Counselor's Office posted yesterday, January 6, 2011, a slew of advisory opinions (at least 40), issued over the past few months, but not posted for public access until now.

Included among these were the results of the following formal complaints:

In each of these cases, the Public Access Counselor affirmed the denial of the requested access to records.

Posted by Marcia Oddi on Friday, January 07, 2011
Posted to Indiana Government

Courts - "End the impeachment war on judges"

That is the heading to this opinion piece in today's Washington Post by Bert Brandenburg, who is "executive director of Justice at Stake, a nonpartisan organization that defends courts from political attacks." Some quotes:

For more than 200 years, a safety barrier has protected our nation's courts and our democracy. No matter how controversial the case or unpopular the ruling, no state or federal judge has been impeached for an opinion issued from the bench.

In the next few months, that may change. The fight is being waged by political operatives in Iowa, but every state should be watching.

Last fall, Iowa voters ousted three high-court justices over a unanimous 2009 ruling permitting same-sex marriage. But the organizers behind that effort don't want to stop there - they've vowed to impeach and remove the court's four remaining justices, who weren't up for election in November.

Posted by Marcia Oddi on Friday, January 07, 2011
Posted to Courts in general

Ind. Gov't. - "White sworn in as inquiries go on: State's new top election official denies he committed voter fraud in primary"

Updating this list of ILB entries on the candidacy of Charlie White for Secretary or State, and particularly this entry from Nov. 21, 2010, the Indianapolis Star's Mary Beth Schneider has this story today. Some quotes:

Shortly after taking the oath of office, Secretary of State Charlie White spoke words that never cross most officeholders' lips: "I did not commit voter fraud."

White, who won election in November, is under investigation by two special prosecutors in Hamilton County for having voted in the wrong precinct in the May primary election.

If he did so deliberately to cover up the fact that he no longer lived in the Fishers Town Council district he represented, as Democrats allege, that's a Class D felony. If it was an innocent mistake, as White asserts, it may be merely a political footnote to his career.

But even as White was taking the oath of office Thursday from Supreme Court Chief Justice Randall Shepard -- a ceremonial repeat of the oath White took in a low-key Hamilton County event Dec. 27 -- the question hung in the air: How long will he stay as secretary of state?

The speculation in political circles and in the Statehouse is that if he is indicted by a grand jury, which is expected to take up the case in February, White's tenure as secretary of state may be short. A felony conviction would bar him from the office, though a judge could opt to reduce it to a misdemeanor. Still, an indictment alone could be enough to cause Republican leaders to pressure White to resign. * * *

Democrats, though, have gone to court to challenge White's eligibility as a candidate. If the legal system finds that White committed voter fraud in May, said Indiana Democratic Party Chairman Dan Parker, he was ineligible to be a candidate and certified as the winner. Under Indiana law, Parker said, the second-place finisher, Democrat Vop Osili, should be declared the next secretary of state rather than someone appointed by Daniels.

That's an argument, though, that the Indiana Recount Commission -- on which Republicans hold a 2-1 majority -- already has rejected. * * *

White's troubles began when he changed his voter registration in February to his ex-wife's address, which was in his Fishers Town Council district, but that same month closed on the purchase of a condo in a different district. He moved to that condo in March, never changed his voter registration and voted in his ex-wife's precinct in May. As he voted, he signed a poll book that listed her address, not his.

Two provisions in Indiana law allow a voter to cast ballots at his or her old polling place. One applies only to those who move within 30 days, so it doesn't fit White's case. The other doesn't mention any time deadline but does require the voter to inform poll workers of his or her new address and correct his or her registration at the polling place. White never did that.

Posted by Marcia Oddi on Friday, January 07, 2011
Posted to Indiana Government

Ind. Courts - "Plea deals trump trials in Indiana"

Harold J. Adams of the Louisville Courier Journal has reviewed recent Indiana Trial Court Statistics for this lengthy story dated Jan. 6, 2011. Some quotes:

From Perry Mason to Law and Order, the image of the criminal justice system goes something like this: The accused felon gets a fast-paced trial filled with dramatic testimony before the jury pronounces its all-important verdict, with potentially years in prison at stake.

Want to know the truth, the whole truth and nothing but the truth? That’s seldom how cases are decided.

In Indiana, as in Kentucky, only a tiny fraction of felony cases go to trial. Most are settled in plea bargains that generally result in less severe penalties than defendants would get if convicted at trial.

Despite that, prosecutors and defense attorneys say the system delivers good results.

The 2009 Indiana Judicial Service Report released in November shows that of 70,425 felony cases disposed of that year, only 1,013 went to trial by jury with another 714 tried in front of a judge without a jury. That means only 2.5 percent of felony cases ended up with prosecutors and defense attorneys doing battle in front of a jury or judge.

By contrast, 53,216 cases, or nearly 76 percent, ended with plea bargains. Another 18 percent were dismissed.From Perry Mason to Law and Order, the image of the criminal justice system goes something like this: The accused felon gets a fast-paced trial filled with dramatic testimony before the jury pronounces its all-important verdict, with potentially years in prison at stake.

Want to know the truth, the whole truth and nothing but the truth? That’s seldom how cases are decided.

In Indiana, as in Kentucky, only a tiny fraction of felony cases go to trial. Most are settled in plea bargains that generally result in less severe penalties than defendants would get if convicted at trial.

Despite that, prosecutors and defense attorneys say the system delivers good results.

The 2009 Indiana Judicial Service Report released in November shows that of 70,425 felony cases disposed of that year, only 1,013 went to trial by jury with another 714 tried in front of a judge without a jury. That means only 2.5 percent of felony cases ended up with prosecutors and defense attorneys doing battle in front of a jury or judge.

By contrast, 53,216 cases, or nearly 76 percent, ended with plea bargains. Another 18 percent were dismissed. * * *

In Floyd County, Ind., Prosecutor Keith Henderson said more than 1,000 felony cases are filed each year to be handled among the county’s three felony courts. Even using the 2½-days-per-trial figure that Henderson said would be too short for most such cases, “now you’re looking at 300 trials a year.”

One result would be “every person in the county being called for jury duty several times,” Henderson said. “You just couldn’t” handle the volume. * * *

Henderson said there’s another big thing the state gains from a plea bargain. “Once someone pleads guilty, they waive their right to appeal, and so there’s finality to it as well,” he said.

Contrast that to the case of former Indiana State Trooper David Camm, who is awaiting a third trial on charges of murdering his wife and two children after two previous trial convictions were overturned on appeal, Henderson said.

Even given the benefits of a plea agreement, a meeting of the minds between a prosecutor and a defense attorney does not guarantee that the deal will go through. A judge must weigh each proposed agreement to make sure it’s legal and appropriate, [Harrison Superior Court Judge Roger Davis] said.

If the agreement is legal, the judge said, the question becomes, “Is it outrageously onerous or outrageously lenient? Is it within reason?”

Davis said he has rejected pleas that he thought were either too easy or unreasonably hard on defendants.

Posted by Marcia Oddi on Friday, January 07, 2011
Posted to Indiana Courts

Thursday, January 06, 2011

Ind. Gov't. - "16 Weeks of this to go?" Some ILB observations

Mary Beth Schneider and Heather Gillers of the Indianapolis Star had the coverage with the best headline re the rocky start to this year's House of Representatives. Here is the part that caught my eye:

[Democrats] invoked a seldom-if-ever-used rule that requires the titles and authors of all bills to be read aloud in the House -- a "first reading" -- clearing the way for committee assignment. That, Democrats argued, protected their right to then object to a bill and force a vote to kill it from the start.

Bosma said later that Republicans may want to revise that rule, saying it is wrong to force legislators to vote on a bill most had not seen, much less read.

Leslie Stedman Weidenbener reported on the incident in the Louisville Courier Journal:
And within minutes of the opening Pledge of Allegiance, those new members — and some veterans — got an unexpected lesson on House rules.

Democrats challenged House Speaker Brian Bosma, R-Indianapolis, to “follow the Indiana Constitution and House rules” by offering bills on first reading individually — instead of in mass on lists. The latter has been the House tradition for decades under both Republican and Democratic leaders, including former Democratic Speaker Pat Bauer last year.

But this session, state Rep. Win Moses, D-Fort Wayne, said the rules should be enforced so that minority members could take advantage of a second rule, one that allows members to object to the introduction of individual bills. * * *

Meanwhile in the Senate, the first day started and ended quickly, lengthened only by the introduction of individual bills, which is that chamber’s tradition.

Jon Seidel reported in the Gary Post Tribune:
House Minority Leader B. Patrick Bauer, D-South Bend, and Rep. Terri Austin, D-Anderson, tried to stop them dead in their tracks. Austin asked for the title, number, author and committee of each bill to be read on first reading, citing an official House rule.

Veteran lawmakers say both parties have ignored that rule for decades, but Austin said that would give members a chance to object to a bill on first reading. After much parliamentary wrangling, and a vote on one of the bills, both were introduced and assigned to the labor committee.

"You know, we spent more time on this than if we'd actually read the bill lists," Austin said.

Bosma didn't list the two targeted bills among his legislative priorities Wednesday, but he did say bills should get a chance to be heard in committee, where members of the public can hear details and give feedback.

He said it wasn't "totally absurd" for Democrats to read the House rules the way they did. He wouldn't say whether the long-ignored rule would be changed.

"We'll see what tomorrow's bill-list hand-down brings," Bosma said.

ILB observations. The Indiana Constitution requires that bills be "read" three times.

Here, specifically, is what the Indiana Constitution requires:

Art. 4, Sec. 18. Every bill shall be read, by title, on three several days, in each House; unless, in case of emergency, two-thirds of the House where such bill may be pending shall, by a vote of yeas and nays, deem it expedient to dispense with this rule; but the reading of a bill, by title, on its final passage, shall, in no case, be dispensed with; and the vote on the passage of every bill or joint resolution shall be taken by yeas and nays.
(History: As Amended November 6, 1984)
Here is Indiana Senate Rule 50:
50. (a) Bills and joint resolutions will be introduced after assignment to a committee.
(b) Bills and resolutions are introduced when read for the first time.
(c) The first reading of a bill shall be for information, including the assignment to a committee by the President Pro Tempore.
Here is an example of the Senate Reading Clerk "reading" SB 9 for the first time: "Senate Bill 9, Senator Zakas, Rules & Legislative Procedure." That is a quote from the online video of yesterday's Senate session.

Here is the Indiana House Rule 115:

115. Introduction and First Reading. The reading of each bill by number, title and author and committee reference shall be the introduction and first reading. The first reading of a bill is for information.

Oddly, in this new era of transparency, the House video for yesterday is not currently available online. However I was able to view the video from a year ago, Jan. 5, 2010, and heard then-Speaker Bauer announce: "Chair hands down bill list #2." Period, no indication of what is on the bill list. So that is the difference: unlike in the Senate, bills in the House on first reading are not read number by number, although the rule does seem to require it.

Whether or not this House practice complies with the Constitution is questionable. However, our Supreme Court has ruled many times that the General Assembly is the judge of its internal procedures, meaning that a law cannot be successfully challenged on the basis of some procedural deficiency that occurred during its passage through the General Assembly.

What surprised me, however, was that, unlike the Senate, the House has a second rule, 116:

116. Rejection or Assignment to Committee. If a member objects to a bill on first reading the question shall be: “Shall the bill be rejected?” If the question to reject is defeated, the bill shall be referred to a committee.
So this was the point of the House Democrats maneuvers yesterday! Without at least a cursory "reading," as is required by Rule 115, there is no opportunity for exercising an objection under Rule 116.

And this Star quote now makes more sense to me: "Bosma said later that Republicans may want to revise that rule, saying it is wrong to force legislators to vote on a bill most had not seen, much less read."

He seems to be talking about the second rule, 116, rather than about 115, which is intended to address the constitutional requirement.

[More at 4:00 pm] These quotes from this story from Niki Kelly of the Fort Wayne Journal Gazette are useful:

Democrats said they just wanted to use existing House rules to go on record early against so-called right-to-work legislation.

The legislation would prevent employees from being forced to join a union or pay dues as a condition of employment.

They specifically wanted to have the number, title, author and committee of each bill filed so far read into the record instead of adopting a bill list en masse. Doing this would then allow them to object to individual bills on first reading – the ultimate objective behind the maneuver.

“I want a chance to say, ‘Let’s not waste our time,’ ” said Rep. Ed Delaney, D-Indianapolis, about the right-to-work bill.

The practice of reading individual bill information has not been used in the past by former Democratic Speaker Patrick Bauer, of South Bend, but the Senate regularly follows that rule. The Senate did so Wednesday with no argument and was done with work well before the House.

Rep. Jeff Espich, R-Uniondale, said he was disappointed in Democrats and noted that during the time House members were fighting about the rule “not one Hoosier is better off. Not one job has been created. Not one step toward a balanced budget.”

Bosma said it might be necessary to change the rules in the future rather than force members to vote on bills on first reading – which is often before legislators have even seen them.

Posted by Marcia Oddi on Thursday, January 06, 2011
Posted to Indiana Government

Ind. Courts - "Judge to hear complaints about ex-prosecutor Brizzi"

Updating this ILB entry from Oct. 9, 2009, headed "Disciplinary complaint filed against Marion County prosecutor Carl Brizzi," Carrie Richie of the Indianapolis Star is reporting this afternoon:

A Shelby County judge will hear arguments Friday over claims that former Marion County prosecutor Carl Brizzi made inappropriate comments about two cases during his tenure.

If Brizzi is found guilty of misconduct, he could face punishment ranging from a reprimand to disbarment, Indiana Supreme Court spokeswoman Kathryn Dolan said in an e-mail.

Posted by Marcia Oddi on Thursday, January 06, 2011
Posted to Indiana Courts

Ind. Courts - "Judge blocks discovery into aspiring lawyers' mental health"

Leigh Jones of the National Law Journal reported on Jan. 4, 2011 in a story that begins:

A federal judge has blocked the Indiana State Board of Law Examiners from digging further into the mental health of class-action plaintiffs who are suing over certain questions on the state's bar admission application.

U.S. District Judge Tanya Pratt affirmed on Dec. 23 a magistrate's order prohibiting the board from conducting further discovery about the plaintiffs, whose 2009 lawsuit alleges that questions on the application related to applicants' mental health violate federal disability law.

"Simply stated, the court finds that the magistrate judge's decisions were neither clearly erroneous nor contrary to law," wrote Pratt, who presides in the Southern District of Indiana.

Pratt ruled that the board of law examiners could not take additional discovery pertaining to the mental health of five anonymous plaintiffs who are members of the ACLU Indiana University School of Law Indianapolis Chapter. * * *

In January 2010, the magistrate judge granted class status to name plaintiff Amanda Perdue and in March found that the ACLU student chapter had standing. The court determined that the class equaled about 95 individuals each year among the roughly 600 who annually apply for bar admission in Indiana.

Pratt also upheld the magistrate judge's determination that Perdue was not required to answer interrogatories and provide documents pertaining to her mental health history.

The case mirrors actions in other states that have challenged questions about mental health on professional license applications. Challenges have resulted in the removal or modification of similar questions in Maine, New Jersey and Rhode Island.

Jon Laramore, president of the Indiana State Board of Law Examiners, said that the questions are necessary to help ensure the fitness and character of attorneys licensed in Indiana.

"It's important for the board to understand all aspects of an applicant's situation, to know whether an applicant meets our fitness standard," Laramore said. "We don't want to be any more intrusive than we have to be to get that information."

ACLU of Indiana attorney Kenneth Falk, who represents the plaintiffs, said that Indiana's questions about mental health are the broadest in the country."The issue is whether someone has the current character and fitness to practice law," Falk said. "These questions ask whether someone has seen a mental health counselor [at any time] since the age of 16. That's too broad an inquiry."

Here is Judge Pratt's Dec. 23, 2010 ruling in Amanda Perdue v. The Individual Members of the Indiana State Board of Law Examiners.

And here is the most recent earlier ILB entry, from Jan. 30, 2010, re the granting of class certification.

Posted by Marcia Oddi on Thursday, January 06, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Jeremiah Hayes v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 06, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Important Notice re Indiana Appellate Rule 45

The ILB has just received this alert via the ISBA Appellate Section:

West Publishing inadvertently deleted Appellate Rule 45(B)(2), (B)(3), and (B)(4) from the 2011 Appellate Rule Books and from the version on Westlaw. (They govern the deadlines for Appellee, Reply and Cross Appeal Briefs . . . Rule 45(A) was amended effective 2011, so that might be where West’s problem originated).

The deadlines in the old books are still the deadlines that govern.

Here is Rule 45, as set out on the Indiana Court site, as amended through Jan. 1, 2011:
Rule 45. Time For Filing Briefs

A. Applicability. This Rule applies to appeals from Final Judgments and interlocutory orders. Filing deadlines relating to Petitions for Rehearing, to Transfer, and for Review are governed by Rules 54, 57 and 63 respectively.

B. Filing Deadlines.

(1) Appellant's Brief. The appellant's brief shall be filed no later than thirty (30) days after:
(a) the date the trial court clerk or Administrative Agency serves its notice of completion of Clerk's Record on the parties pursuant to Appellate Rule 10(C) if the notice reports that the Transcript is complete or that no Transcript has been requested; or

(b) in all other cases, the date the trial court clerk or Administrative Agency serves its notice of completion of the Transcript on the parties pursuant to Appellate Rule 10(D).

Rule 25(C), which grants a three-day extension of time for service by mail or third-party commercial carrier, does not extend the due date for filing the appellant’s brief.

(2) Appellee's Brief. The appellee's brief shall be filed no later than thirty (30) days after service of the appellant's brief.

(3) Appellant's Reply Brief; Cross-Appellee's Brief. Any appellant's reply brief shall be filed no later than fifteen (15) days after service of the appellee's brief. If the reply brief also serves as the cross-appellee's brief, it shall be filed no later than thirty (30) days after service of the appellee's brief.

(4) Cross-Appellant's Reply Brief. Any cross-appellant's reply brief shall be filed no later than fifteen (15) days after service of the appellant's reply brief.

C. Extensions of Time. Motions for extensions of time to file any briefs are governed by Rule 35.

D. Failure to File Timely.
The appellant's failure to file timely the appellant's brief may subject the appeal to summary dismissal. The appellee's failure to file timely the appellee's brief may result in reversal of the trial court or Administrative Agency on the appellant's showing of prima facie error.
ILB observation: Of course, the Court's online rules are prefaced by this disclaimer:
These court rules are posted for informational purposes only. Official rules and citations are available from Thompson/West.
So where does that leave us?

Posted by Marcia Oddi on Thursday, January 06, 2011
Posted to Indiana Courts

Ind. Courts - Public defenders highlighted at Elkhart County funeral

Justin Leighty of the Elkhart Truth has a very long story today on the role public defenders: it begins with this introduction:

GOSHEN -- Tuesday's funeral for R. Brent Zook brought public defenders into the spotlight in Elkhart County.

During the service for Zook, a long-time public defender, his boss, Cliff Williams, spoke. Williams said that with Zook at their sides, the county's public defenders were "a band of brothers and sisters who worked together, cried together and tried to do the best we could for the underprivileged of Elkhart County."

Williams said the community was "extremely fortunate" to have Zook. Now, with his passing, the work goes on, though the nature of that work is sometimes misunderstood.

Posted by Marcia Oddi on Thursday, January 06, 2011
Posted to Indiana Courts

Ind. Courts - "New Tippecanoe clerk says, 'I don't'"

Dorothy Schneider of the Lafayette Journal Courier reports today:

The Tippecanoe County clerk's office is no longer offering marriage ceremonies -- at least for now.

Clerk Christa Coffey eliminated the service as she entered office this week. It's a move that's been made in some other Indiana counties as well.

The Grant County Court Clerk J. Mark Florence decided 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. Grant County is about 60 miles east of Tippecanoe.

"We just don't have time for it," Coffey said, citing a paperwork overload already facing Tippecanoe County staff. "The law says we 'may' do it, but we don't have to."

The clerk's office still will sell marriage licenses, which offer county residents and those who plan to marry in the county a 60-day window for a wedding. And those who still want to marry in the courthouse can make an appointment to have any of the judges perform the ceremony for a nominal fee, usually $50.

Linda Phillips, who served as county clerk until the end of 2010, said she performed about five wedding ceremonies most weeks. It definitely takes time, she said, but Phillips viewed it as an important service for the public.

"I always felt we as a society benefit from people being married before they start having children," she said. "Yes, it took time, but to me it was worth it."

This Dec. 25, 2010 ILB entry quotes from a story about the Grant County decision.

The Grant County Clerk cited lack of space for his decision, The Tippecanoe Clerk says "a paperwork overload." Surely judges and others authorized officials who perform marriage ceremonies must also meet the paperwork requirement.

SB 2, introduced in this session by Senator Steele "Authorizes the governor, the lieutenant governor, and members of the general assembly to solemnize marriages, and specifies that they may not accept money for solemnizing a marriage."

Posted by Marcia Oddi on Thursday, January 06, 2011
Posted to Indiana Courts

Wednesday, January 05, 2011

Ind. Law - Bill introduced re divying up of civil forfeiture monies

A press release today begins:

STATEHOUSE (Jan. 5, 2011) — State Sen. Richard Bray (R-Martinsville) today announced he’s filed a bill to set a new calculation for law enforcement costs in Indiana’s much-debated forfeiture laws.

As written, Senate Bill 215 would allow a set amount of the value of the property seized in criminal cases to cover police and prosecutors’ costs, directing the rest to the Common School Fund:

  • If seized property value is $3,000 or less, law enforcement costs are 85 percent of the entire amount;
  • If seized property value is more than $3,000 and less than $100,000, law enforcement costs are $3,000 plus 50 percent of the value between $3,000 and $100,000, not exceeding 85% of the total value of the property; and
  • If seized property value is $100,000 or more, law enforcement costs are $53,000 plus 20 percent of the amount equal to or exceeding $100,000.
Additionally, as written, Bray’s bill provides for 25 percent of the law enforcement costs collected to be transferred to the prosecuting attorney to pay the expenses of bringing the forfeiture action. This amount is capped at $10,000 if the property seized is less than $100,000 and $20,000 if the amount seized is $100,000 or more.

“After speaking with a variety of legal experts and interested parties, Senate Bill 215 was created to include a stair-step calculation for law enforcement costs,” Bray said. “While other states have been cited for dividing seized property value in a 50/50 fashion, I want to ensure law enforcement offices and prosecuting attorney’s offices have their costs covered. The funds generated would not exist if it weren’t for their efforts.”

Bray said he spoke with representatives from the Indiana Prosecuting Attorneys Council, the Attorney General’s office and other police agencies before setting the new calculation.

Currently, state law calls for excess money or funds not needed to cover law enforcement costs in a seizure and forfeiture case to be transferred to the state treasurer for deposit in the Common School Fund.

ILB: Unfortunately, SB 215 is not yet available. When it is, it should be here.

As noted: "Currently, state law calls for excess money or funds not needed to cover law enforcement costs in a seizure and forfeiture case to be transferred to the state treasurer for deposit in the Common School Fund."

The issue has been, what are the costs? Some counties have carefully divided out their costs for the particular case and sent the rest to the Common School Fund. Other counties, however, have retained a large part, or all, of the forfeited funds.

Although it still uses the term "costs," this bill would drop any pretense of basing the amount law enforcement receives upon its actual costs in the forfeiture case, and would simply divy the money up, based on a specific formula, but basically half and half. The impact will depend on the county.

Posted by Marcia Oddi on Wednesday, January 05, 2011
Posted to Indiana Law

Ind. Courts - "Judge chosen for Clarksville town court"

Updating this ILB entry from Dec. 28, 2010, the Town of Clarksville now has not only decided not to scrape its court, but a new judge has been selected. Ben Zion Hershberg has the story today in the Louisville Courier Journal; it begins:

A week after the Clarksville Town Council decided not to eliminate the town court for budgetary reasons, , a Democratic Party Caucus elected a new judge to the part-time position.

Mickey Weber, 28, was elected unanimously by Democratic Party precinct leaders — with no opppostion — Monday night at the Clarksville Town Hall. He was sworn in that night by his father, Clark County Superior Court Judge Joe Weber, who was the town judge for 24 years.

Mickey Weber said he will complete the year remaining on the term of Sam Gwinn, who retired at the end of 2010, and he will run for office in this year’s municipal elections for another four-year term. * * *

The legal issues handled in the town court — misdemeanors, traffic violations and Clarksville ordinance violations — “are not particularly novel or unique,” Weber said, “but the human factor is not something you should ignore.” * * *

Weber said that with the help of two new partners and an associate, he also will maintain his private law practice, though he will no longer personally take misdemeanor or traffic cases.

Weber said he held court for the first time as the town judge on Tuesday morning, handling about 70 initial hearings and plea completions.

Posted by Marcia Oddi on Wednesday, January 05, 2011
Posted to Indiana Courts

Ind. Decisions - "12-Year-Old in Indiana Gets 25-Year Sentence"

Another Indiana law story this week goes national. Ashby Jones of the WSJ Law Blog has this lengthy entry, followed by reader comments, on the sentencing this week of a 12-year-old Kosciusko County boy. The entry begins:

A 12-year-old helps commit a heinous murder. He confesses and states his remorse.

What should his sentence be?

An Indiana judge on Tuesday thought a 25-year prison term was the way to go.

The Sentencing Law Blog also picked up the story in this entry, and also has many readers comments.

Both base their coverage on this lengthy unsigned story from Fort Wayne's WANE. Kosciusko Circuit Judge Rex Reed handed down the sentence.

Here is the long story today from the Kosciusko County Times-Union, reported by John DeGroff. It begins:

Paul Henry Gingerich, 12, was sentenced in Circuit Court by Judge Rex Reed to serve 30 years for his part in the April 20, 2010 murder of Phillip A. Danner.

Gingerich was initially charged with murder, aiding and abetting murder, and conspiracy to commit murder.

Through a plea deal, the charges of murder and aiding and abetting were dropped, and Gingerich pleaded guilty to a charge of conspiracy to commit murder, a class A felony. The sentence was reduced to 25 years with 5 years probation.

Reed also stipulated that Gingerich will serve his sentence as part of a program in Indiana prisons known as Youth Incarcerated as an Adult.

Youth offenders in this program have no contact with adult prison populations, and are provided schooling and other programs designed for them. Reed further stipulated that Gingerich will continue in the program past his 18th birthday. A fine of $100 was also levied.

Posted by Marcia Oddi on Wednesday, January 05, 2011
Posted to Ind. Trial Ct. Decisions

Courts - In Illinois, "Can you cite to unpublished opinions?" What about Indiana?

The answer, according to an article by Helen W. Gunnarsson in the Illinois Bar Journal, is "In Illinois state court, no. In Illinois-based federal district courts, yes."

That even experienced lawyers may be uncertain isn't surprising, for the rules differ depending on whether a matter is in state or federal court, and on whether it's at the trial level or on appeal.
In Illinois state court, an Illinois Supreme Court Rule "governs the citation of opinions in all of the state courts in Illinois, circuit, appellate, and supreme." It is similar to the Indiana rule.

In Indiana state court, Indiana Supreme Court Appellate Rule 65D governs:

Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.
Notice that it states "to any court," so as with Illinois, one state rule governs the citation of opinions in all of the state courts in Indiana, be they trial, appellate, orsupreme.

In Illinois federal appellate court
, which like Indiana is the 7th Circuit Court of Appeals, Federal Rule of Appellate Procedure 32.1 governs. Read the article for more detail on the federal appellate and trial court requirements.

Posted by Marcia Oddi on Wednesday, January 05, 2011
Posted to Courts in general

Ind. Decisions - "Indiana Hospital Not Liable in Elbow-Replacement Case: Patient claimed that Floyd Memorial Hospital should have approved an implant that a surgeon used"

One of the Dec. 22,2010 COA opinions that the ILB did not have the opportunity to summarize, Tracey L. Beswick and Ruthie Beswick v. Edward E. Bell, M.D., and Floyd Memorial Hospital & Health Services has been written up in Outpatient Surgery Magazine. A quote:

"Dr. Bell's credentials as [a] licensed, board-certified orthopedic surgeon are undisputed," wrote Judge Carr L. Darden. Indiana law does not require a hospital that credentials physicians to "engage in the detailed micromangement of medical care being provided by individual independent physicians."

Posted by Marcia Oddi on Wednesday, January 05, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Lawsuit over Greensburg short-hair rule may be a long shot"

Carrie Ritchie of the Indianapolis Star has a good story yesterday on high school's regulation of hair length. Some quotes:

The parents of a former Greensburg Junior High basketball player are asking a federal court to declare the team's haircut policy unconstitutional.

In a lawsuit filed last week in U.S. District Court in Indianapolis, Patrick and Melissa Hayden say team rules governing the length of players' hair violate their son's right to wear his hair the way he wants and also treat male and female athletes differently because female players don't have to adhere to the same guidelines. * * *

But the school district claims the policy didn't violate the boy's rights, partly because participating in extracurricular activities is a privilege, not a right.

Courts have been divided in their rulings about grooming policies in schools, said David Hudson, First Amendment scholar at the First Amendment Center at Vanderbilt University.

Some rulings support students' right to wear their hair as they choose during school, but generally, Hudson said, "schools are given more leeway with extracurricular activities."

In 2003, a federal court in Missouri dismissed a case in which a basketball player sued a school district because coaches wouldn't let him wear cornrows in his hair. The court called the grooming policy "an asinine, stupid rule" but decided that participation in extracurricular activities is a privilege, not a right, and that the policy didn't violate the player's constitutional rights.

A sidebar identifies the Missouri case as Hurt v. Boonville R-1 School District Case, No. 02-4267-CV-C-SOW (W.D. Mo. 2002). The sidebar quotes "the Nashville, Tenn.-based First Amendment Center" re:
Can different rules about hair length apply in extracurricular activities and the regular school day?

Yes. In most cases, participation in extracurricular activities is considered to be a privilege, not a right. As such, participants may be subject to additional or different rules than regular students. Lower courts and the U.S. Supreme Court have noted that participants in extracurricular sports, by electing to participate, subject themselves to these rules. In 1995, the Supreme Court decided a case in which it upheld drug testing for student athletes. In its opinion, the Court noted: 'By choosing to 'go out for the team,' [student athletes] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally.' Vernonia Sch. Dist. 47J v. Acton, U.S. 646, 657 (1995).

The lawsuit featured in yesterday's story was filed Dec. 27, 2010 in Indiana's Southern District, Hayden v. Greensburg Community School Board Members (1:2010cv01709).

The ILB initially was unable to access the comlaint via PACER. A motion filed Jan. 4, 2011, however, indicates that the original was withdrawn and replaced with "a properly redacted Complaint otherwise identical to the original," filed Jan. 4, 2011. Access the 30-page complaint here.

Posted by Marcia Oddi on Wednesday, January 05, 2011
Posted to Indiana Courts

Ind. Gov't. - "Burns Harbor has no standing to sue own BZA, judge rules"

Updating this ILB entry from Nov. 27, 2010 headed "Town of Burns Harbor in court against itself Monday," yesterday Paulene Poparad of the Chesterton Tribune reported the outcome. Some quotes from the long story:

Porter Circuit/Superior Court Judge Mary Harper ruled Monday that the Town of Burns Harbor and its Town Council legally cannot challenge an Aug. 24 decision made by its own Board of Zoning Appeals.

The Town/Town Council alleged in its subsequent appeal that letting C.R. England Trucking build a new 250 semi-truck parking lot 1/4 mile from its existing trucking terminal on Tech Drive would be illegal, unreasonable and procedurally wrong on several grounds.

Harper approved England attorney Terry Hiestand’s motion to dismiss both the Town and Town Council from the appeal on the grounds that neither one had standing under the law to bring it.

The BZA had retained Brian Hurley as its attorney for the litigation; he argued the BZA didn’t have to turn over its record of the England proceedings for judicial review because the Town/Town Council had no right to appeal in the first place.

The town has not alleged any concrete injury, pecuniary or otherwise, they they will suffer if their appeal is not heard, said Harper. “Both the Appellate and Supreme Courts have repeatedly found there must be an injury clearly involved” beyond that of the community as a whole.

The Town/Town Council’s lawyer, Thomas Mixdorf of Ice Miller LLP in Indianapolis, was unavailable for comment this morning.

Posted by Marcia Oddi on Wednesday, January 05, 2011
Posted to Ind. Trial Ct. Decisions | Indiana Government

Tuesday, January 04, 2011

Courts - More on: "Post-Chandra Levy murder trial 12/1: The secret juror questionnaires"

Updating this ILB entry from Dec. 1, 2010, Michael Doyle, a reporter for McClatchy's Washington Bureau continues to follow the story. Today, under the heading "Appeal filed over juror questionnaires in Chandra Levy case," he writes:

In a fight pitting juror privacy against public curiosity, the Washington Post is appealing a judge's decision not to disclose contents of juror questionnaires. The trial judge says 12 jurors unanimously wanted the questionnaires kept secret.

"They were very concerned that ... either during the trial or after the trial that they were going to be, I don't want to use the word 'hounded,' but they were going to be investigated and people were going to try to talk to them and intrude upon their private or their working lives," D.C. Superior Court Judge Gerald I. Fisher said. * * *

Fisher explained his reasoning in a Nov. 24 hearing, the transcript of which was included in the Washington Post's quietly filed Dec. 23 appeal. Fisher further stated that he did not want to renege on his promise to jurors that the questionnaires would remain secret.

"I believe that the First Amendment requires that the court look for less restrictive means than blanket withholding of information," the Post's attorney, Patrick J. Carome, retorted during the hearing, the transcript shows.

Carome added that "the privacy issues can be addressed by withholding the particular information that was so sensitive that there was a privacy interest that trumps the First Amendment interest in access."

As part of a related fight over trial access, Chandra Levy's mother, Susan, is seeking to keep certain visually and emotionally disturbing evidence sealed so it doesn't become public.

Posted by Marcia Oddi on Tuesday, January 04, 2011
Posted to Courts in general

Ind. Courts - Mortgage Foreclosure Best Practice posted on Indiana Courts website

A document identified as "Trial Court Resources: Mortgage Foreclosure Best Practices," was posted on the Indiana Courts website on Jan. 3, 2011. Note the disclaimer:

These practices have not been reviewed by the Indiana Supreme Court. However, they were developed in consultation with Indiana trial judges, academics, and other experts in creditor-debtor law, along with the Office of the Indiana Attorney General and the Division of State Court Administration.
In addition yesterday, the Attorney General issued a press release and filed a 7-page petition with the Supreme Court asking that the Court promulgate an order establishing best practices to be observed and enforced in actions to foreclose mortgages in Indiana courts.

No word from the Court. The ILB is trying to find precedent for such a request.

Posted by Marcia Oddi on Tuesday, January 04, 2011
Posted to Indiana Courts

Ind. Courts - "Convicted rapist Brian Mast freed again"

Updating this ILB entry from Oct. 17, 2009, and this one from Feb. 13, 2010, both under the heading "Conviction tossed in 1989 rape case, new trial granted," Rebecca S. Green of the Fort Wayne Journal Gazette has a third story, posted early this afternoon:

After a court hearing Tuesday morning, convicted rapist Brian Mast is free again, but with much tighter probation requirements than before.

Mast, 44, was released from prison late last month after he pleaded guilty to a charge of rape stemming from the 1989 rape and stabbing of a woman inside her Fort Wayne apartment.

Mast's previous guilty plea was overturned by the Indiana Court of Appeals after concerns were raised about his mental health at the time of that plea.

Because of Mast's behavior in prison, he received no good-time credit on his original prison sentence of 30 years. Under the terms of the new plea agreement, Mast was sentenced in December to 20 years in prison, with five years suspended to be served on probation. With credit for all the time served, Mast was released from prison days after his sentencing.

But within days of his release, Mast violated the conditions of his probation by not showing up for a court-ordered appointment for a psychiatric exam.

Under the terms of Mast's stricter probation, he is to continue to take all medications, including thorazine, which is used to treat psychotic disorders. He must also make weekly appearances before Allen Superior Judge John Surbeck to make sure he is in compliance.

Posted by Marcia Oddi on Tuesday, January 04, 2011
Posted to Ind. Trial Ct. Decisions

Courts - "Scalia on ‘Controverisal Stuff’: ‘I Don’t Even Have to Read the Briefs’"

Ashby Jones of the WSJ Law Blog posted this worth-reading entry today.

Posted by Marcia Oddi on Tuesday, January 04, 2011
Posted to Courts in general

Ind. Decisions - 7th Circuit issued one Indiana ruling today

In US v. Redd (ND Ind., Springmann), a 4-page opinion, Chief Judge Easterbrook writes:

Timothy Redd was convicted in 2005 of distributing crack cocaine and was sentenced to 405 months’ imprisonment. In 2007 the Sentencing Commission reduced the Guideline ranges for crack offenses (Amendment 706, effective November 1, 2007). The next year it made that change retroactive (Amendment 712, effective March 3, 2008). This allowed prisoners whose ranges had been affected by the change to seek lower sentences under 18 U.S.C. §3582(c)(2). See Dillon v. United States, 130 S. Ct. 2683 (2010). Redd swiftly took advantage of this opportunity, and the district judge reduced his sentence to 327 months. Redd did not appeal.

Ten months later, he filed in the district court a document styled “Motion for Reconsideration or Alternatively Renewed Motion for Modification of Sentence.” Redd contended that the judge had not given him as great a reduction as the law warranted. The judge denied this motion, and Redd has appealed. * * *

Only one other circuit has addressed this subject in a published opinion. It held that the doctrine of law of the case usually forecloses successive requests for lower sentences. See United States v. Escobar-Urrego, 110 F.3d 1556, 1560–61 (11th Cir. 1997), relying on Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 815–18 (1988). The eleventh circuit did not discuss either Rule 35 or the norm from §3582(c) that “[t]he court may not modify a term of imprisonment once it has been imposed”. We think it best to stick with the statute rather than apply a common-law doctrine such as law of the case.

Redd let the time for reconsideration or appeal of the district judge’s resentencing expire without action. He could not use a new §3582(c)(2) motion to obtain a fresh decision—or to take what amounts to a belated appeal of the original decision. The judgment of the district court denying the successive §3582(c)(2) motion therefore is AFFIRMED.

Posted by Marcia Oddi on Tuesday, January 04, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "What the hell is going on with female lawyers in Indiana?"

That unfortunately is a quote from the widely-read, national law blog, Above the Law. In an entry headed "Lawyer of the Day: Deputy Prosecutor / Other Woman Allegedly Beats Up Wife," Elie Mystal writes -- here are a few quotes:

What the hell is going on with female lawyers in Indiana? Last month, a lawyer there was accused of going on a rampage, in which she allegedly attacked a boyfriend she suspected of cheating and then assaulted a corrections officer. Today we’ve got another attorney — a deputy prosecutor, no less — accused of violence. She allegedly attacked the wife of a man she was sleeping with.

That’s right, the “other woman” apparently attacked the wife. You can’t attack the spouse if you are the other woman. Doesn’t anybody respect the rules? When did Indiana turn into Vietnam? * * *

Quick question: does Indiana even have a “character and fitness” review for new lawyers? Other states have lawyer scandals; what’s up with Indiana and its penchant for lawyer assaults? The Indiana bar needs to start having some “anger management” CLE.

Fair warning if you decide to look at the comments ...

Posted by Marcia Oddi on Tuesday, January 04, 2011
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

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

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, January 04, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending December 31, 2010

Here is the Clerk's transfer list for the week ending December 31, 2010. It is one page (and 4 cases) long.

One transfer was granted for the week ending Dec. 31, 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, January 04, 2011
Posted to Indiana Transfer Lists

Law - Cell phones in prison, more

The NY Times had an eye-opening story Jan. 2, 2011, reported by Kim Severson and Robbie Brown, headlined "Outlawed, Cellphones Are Thriving in Prisons." A few quotes from the long story:

ATLANTA — A counterfeiter at a Georgia state prison ticks off the remaining days of his three-year sentence on his Facebook page. He has 91 digital “friends.” Like many of his fellow inmates, he plays the online games FarmVille and Street Wars.

He does it all on a Samsung smartphone, which he says he bought from a guard. And he used the same phone to help organize a short strike among inmates at several Georgia prisons last month.

Technology is changing life inside prisons across the country at the same rapid-fire pace it is changing life outside. A smartphone hidden under a mattress is the modern-day file inside a cake. * * *

Although prison officials have long battled illegal cellphones, smartphones have changed the game. With Internet access, a prisoner can call up phone directories, maps and photographs for criminal purposes, corrections officials and prison security experts say. Gang violence and drug trafficking, they say, are increasingly being orchestrated online, allowing inmates to keep up criminal behavior even as they serve time.

“The smartphone is the most lethal weapon you can get inside a prison,” said Terry L. Bittner, director of security products with the ITT Corporation, one of a handful of companies that create cellphone-detection systems for prisons. “The smartphone is the equivalent of the old Swiss Army knife. You can do a lot of other things with it.”

The Georgia prison strike, for instance, was about things prisoners often complain about: They are not paid for their labor. Visitation rules are too strict. Meals are bad.

But the technology they used to voice their concerns was new.

Inmates punched in text messages and assembled e-mail lists to coordinate simultaneous protests, including work stoppages, with inmates at other prisons. Under pseudonyms, they shared hour-by-hour updates with followers on Facebook and Twitter. They communicated with their advocates, conducted news media interviews and monitored coverage of the strike.

For background, start with this ILB entry from April 28, 2010.

Another cell phone story today, this one by Kate Moser of The Recorder, that begins:

SAN FRANCISCO — Delving into privacy concerns in the age of the smart phone, the California Supreme Court determined today that after police take a cell phone from a suspect during an arrest, they can search the phone's text messages without a warrant.

The majority in the 5-2 decision reasoned that U.S. Supreme Court precedents call for cell phones to be treated as personal property "immediately associated" with the suspect's person.

But in a dissenting opinion, Justice Kathryn Werdegar wrote that information stored on cell phones shouldn't be examined without a warrant and warned that the majority sanctioned searches that violate the U.S. Constitution's Fourth Amendment.

Here is the 38-page Jan. 3, 2011 opinion of the California Supreme Court in The People v. Diaz.

Posted by Marcia Oddi on Tuesday, January 04, 2011
Posted to General Law Related

Law - "Lawyers Still Cleaning Up Over Superfund Sites: Superfund has been good for the legal profession"

From the NY Times today, a story by Lawrence Hurley. Some quotes from the long story:

Entering the fourth decade of the environmental cleanup law's existence, business is still booming for lawyers involved in the mammoth litigation that often occurs.

Many thought that the legal work surrounding the 1980 law, officially known as the Comprehensive Environmental Response, Compensation, and Liability Act, would have diminished by now, but there are still hundreds of sites awaiting remedial work.

And where there is a polluted property, there is usually litigation.

Under the statute, companies that contributed to the contamination of a site are liable for cleanup costs. Where there are multiple parties, all can be required to pay something.

All kinds of legal wrangling ensues, both between government and private parties and between private parties who disagree over how much they should pay.

Gail Suchman, an environmental lawyer at the Stroock law firm in New York, who began her career as a U.S. EPA attorney, recalled that in the 1980s Superfund "tied up every environmental lawyer in the country."

At that time "an incredible amount of money was made by private party lawyers," Suchman said. * * *

Robert Infelise, an environmental attorney in San Francisco with Cox, Castle & Nicholson, said there is a simple reason there has been so much litigation: The law was badly written in the first place and has never been revisited.

"It's a comment on the extent to which Congress enacted a law and then essentially ignored it," Infelise said.

Evidence that confusion still arises over the law is shown by the fact that the Supreme Court, which has the job of ironing out confusion in the law, continues to take an interest in it.

Posted by Marcia Oddi on Tuesday, January 04, 2011
Posted to General Law Related

Ind. Gov't. - More on "Harrison Sheriff Deatrick's court hearing canceled while judge appointment is decided"

Updating this most recent (June 5, 2010) of a list of ILB entries on former Harrison County sheriff Mike Deatrick, Grace Schneider had this lengthy story in the Jan. 3, 2011 Louisville Courier Journal. Some quotes:

Sheriff Mike Deatrick’s departure from office last week closed a tumultuous era in Harrison County politics, but the fallout from his troubled second term may not be known for years.

The 65-year-old ex-sheriff still faces criminal prosecution on 10 felony charges, while county officials are dealing with a dozen legal claims filed last year by jail inmates who accused officers under Deatrick’s command of various abuses.

Already, the county and its insurance company have paid $475,800 for litigation and court-ordered training stemming from Deatrick’s administration.

The most far-reaching impact may be a change in state law aimed at helping communities where an official gets into trouble but won’t step aside. Two lawmakers, including Rep. Steve Stemler, D-Jeffersonville, are proposing bills to allow the removal of officeholders who are charged with a felony while serving.

“That’s needed. We could have used the help,” said James Goldman, president of the Harrison County board of commissioners. “What it all boils down to is the No. 1 person responsible is Mike Deatrick.” * * *

Deatrick was indicted by a special grand jury in April with felony criminal deviate conduct, insurance fraud and obstruction of justice, charges based on witness accounts and evidence gathered during an 18-month Indiana State Police investigation of claims by two sheriff’s department employees, Deana Decker and Melissa Graham, who accused him of sexual misconduct and retaliation.

The case is pending, and a hearing is set for Friday on a request by Betteau to move the trial because of extensive publicity. No trial date has been set.

Despite repeated requests from the county commissioners and fellow Democrats for Deatrick to step down or take a leave, the sheriff remained in office, insisting he’d done nothing wrong. * * *

At the legislature, Stemler and Sen. Beverly Gard, R-Greenfield, have begun work on bills that would give communities more tools to remove officials who are charged with crimes that can affect their performance.

Both anticipate pushing bills to temporarily suspend officeholders charged with felonies. State law now removes an elected official only after a felony conviction.

But Gard said that doesn’t help when officials aren’t doing their jobs amid a scandal. She cited an effort in Hancock County last summer to remove the sheriff after he’d been charged with felony obstruction and misuse of public funds.

“We found that state law was totally inadequate in dealing with this,” she said. “My argument is that this (legislation) protects officeholders. It just gets rid of the bad ones.”

Her bill would allow a two-thirds majority of a legislative body, such as a city council or county board of commissioners, to find that the alleged offense is relevant to the performance of the officeholder’s duties. Stemler’s bill likewise would allow for removal and includes certain misdemeanor offenses.

Posted by Marcia Oddi on Tuesday, January 04, 2011
Posted to Indiana Government

Monday, January 03, 2011

Courts - "Muncie native Robert Wilkins has been approved as a U.S. District Judge for the District of Columbia"

From a Rose-Hulman Institute of Technology news release:

TERRE HAUTE, Ind. -- The new year has brought a new position for Rose-Hulman Institute of Technology alumnus and Muncie native Robert Wilkins - a spot on the judicial bench of the U.S. District Court for the District of Columbia. * * *

Wilkins, a 1986 chemical engineering alumnus, has been a partner at the Washington, D.C., law firm Venable since 2002, specializing in corporate defense/white collar, technology and commercial litigation practice. From 1990 to 2002, he worked for the D.C. Public Defender Service, was recognized as one of "90 Greatest Washington Lawyers of the Last 30 years" by Legal Times and one of the "40 under 40 most successful young litigators in America" by the National Law Journal. In addition, Washingtonian magazine named him one of the city's top criminal defense lawyers.

Wilkins was the lead plaintiff in Wilkins, et al. v. State of Maryland, winning a landmark settlement in a "racial profiling" case. It inspired data collection requirements in an executive order and legislative proposals in Congress and states all over the country.

Posted by Marcia Oddi on Monday, January 03, 2011
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (2):

Kyle Beals v. State of Indiana (NFP)

Gary Haywood v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 03, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Daniels takes natural gas bet that others refused"

Updating this ILB entry from Dec. 31st, the subheading to Ted Evanoff's Jan. 2, 2011 front-page story in the Indianapolis Star is "Critics say his plan committing state to 30-year natural gas deal is risky for Indiana homeowners."

Posted by Marcia Oddi on Monday, January 03, 2011
Posted to Indiana Government

Ind. Courts - "Unless there is a change in state law, Howard Superior Court 4 Judge George Hopkins will be ineligible to run for re-election in 2012"

That is the lede to this Dec. 29th story by Ken de la Bastide in the Kokomo Tribune. More from the story:

Currently, state law prohibits a Superior Court judge from taking the oath of office if he or she is over the age of 70. There is no such restriction on Circuit Court judges. * * *

“The legislation will make it the same as for the Circuit Court,” Buck said. “There already is a problem getting people to run for judge. Taxpayers have spent a lot of money on the training and expertise of the judges.”

“No one knows how that came about,” he said.

The legislation would make the rules the same for all judges.

“I would run again if the law is changed,” Hopkins said.

ILB: IC 33-29-1-3 provides:
Sec. 3. (a) A standard superior court judge is elected at the general election every six (6) years in the county in which the court is located. The judge's term begins January 1 following the election and ends December 31 following the election of the judge's successor.
(b) To be eligible to hold office as a judge of a standard superior court, a person must be:
(1) a resident of the county in which the court is located;
(2) less than seventy (70) years of age at the time the judge takes office; and
(3) admitted to practice law in Indiana.
The law relating to Indiana circuit courts, IC 33-28-2, contains no requirements re residency, admission to practice law, or age.

However, the law relating to county court judges, IC 33-30-3-1, provides that "A person may not run for judge of a county court if the person will be at least seventy (70) years of age before the person begins the person's term of office." [More: I'm told there are no longer any county courts.]

IC 3-8-1-18 requires that a candidate for the office of judge of a county court must: (1) be a United States citizen; and (2) be admitted to the practice of law in Indiana.

Re Indiana appellate court judges, see this ILB entry from May 26, 2010.

Posted by Marcia Oddi on Monday, January 03, 2011
Posted to Indiana Courts

Ind. Courts - "US attorney job poses challenges for Hogsett"

Charles Wilson of the AP reports in a story that begins:

Longtime Indiana Democratic insider Joe Hogsett acknowledges his new job as U.S. attorney is quite a bit different from his previous ones.

After political roles such as managing outgoing Sen. Evan Bayh's first campaign for governor in 1988 and as the Democratic state chairman, he now is forbidden from any appearance of partisanship. After more than a decade in private practice defending employers from civil rights lawsuits, he now is charged with enforcing federal civil rights laws. Without courtroom experience in criminal law, he's now the top federal prosecutor for central and southern Indiana.

Posted by Marcia Oddi on Monday, January 03, 2011
Posted to Indiana Courts

Ind. Gov't. - Star editorial: "Take break from hot button issues"

Here is how the editorial today in the Indianapolis Star, stressing the need for "setting priorities in an emergency," concludes:

Still, some lawmakers are pushing for stricter controls on abortion, even though Indiana's existing regulations already are relatively strong. The push to adopt a state constitutional amendment banning gay marriage also will resurface despite no existing threat that Indiana's law against such unions will be overturned.

It's important for conservative lawmakers to understand when to declare victory, or at least to accept that they've done as much as they can to uphold the sanctity of life and marriage. Indiana's current laws on terminating a pregnancy are about as restrictive as the federal courts will allow and tougher measures are unlikely to reduce the number of abortions. Gay marriage is outlawed in the state and will remain so for the foreseeable future.

A truce isn't surrender. It's not even a permanent end of the fight. It is an agreement not to inflict further attacks for a time so that other important work can proceed.

The need for such a time has arrived in the Indiana Statehouse. Let all sides honor its priority.

Posted by Marcia Oddi on Monday, January 03, 2011
Posted to Indiana Government

Courts - Updating: Cuyahoga County Common Pleas Judge Shirley Strickland Saffold and her daughter Sydney 's $50 million lawsuit against the Plain Dealer and Advance Internet

Updating a list of ILB entries from last spring, the most recent from April 8, 2010, Anthony Sowell of the Cleveland Plain Dealer reported Dec. 31, 2010 in a story that began:

CLEVELAND, Ohio --Cuyahoga County Common Pleas Judge Shirley Strickland Saffold and her daughter have dismissed their lawsuit against The Plain Dealer and its reporters and editors. The Saffolds reached a financial settlement with Advance Internet.

The judge and her daughter sued the Plain Dealer, then-Editor Susan Goldberg, Advance Internet and other affiliated companies in April. The Saffolds' suit alleged the defendants had breached a website privacy policy and defamed them by publishing stories about comments posted under the "lawmiss" and "governmentwatcher" screen names on cleveland.com, the online home of the newspaper and an affiliate of Advance Internet.

The Plain Dealer reported that numerous comments had been made on the site by someone using an account created with an e-mail address that Judge Saffold said she and her family had sometimes used. The newspaper also reported that many of the online posts commented on some of Saffold's high-profile cases, including that of accused serial killer Anthony Sowell.

Judge Saffold denied making any comments or posts about any of her cases. Her 23-year-old daughter, Sydney Saffold, a one-time law student who lives in Columbus, said she was responsible for some of the comments posted on cleveland.com under the "lawmiss" screen name.

Judge Saffold said there were significant principles at stake.

Posted by Marcia Oddi on Monday, January 03, 2011
Posted to Courts in general

Ind. Gov't. - "Indiana's part-time lawmakers juggle duties with jobs, families"

Kevin Allen of the South Bend Tribune takes a look at what it means to be a part-time legislator today, in an interesting story.

Posted by Marcia Oddi on Monday, January 03, 2011
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 1/10/11):

Next Thursday, January 13th

Webcasts of Supreme Court oral arguments are available here.



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

Next week's oral arguments before the Court of Appeals (week of 1/10/11):

Next Monday, January 10th

Next Wednesday, January 12th

Next Thursday, January 13th

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, January 03, 2011
Posted to Upcoming Oral Arguments

Sunday, January 02, 2011

Not Law - Three interesting stories from recent issues of the NY Times

The first actually is law, it is a follow-up on jurors who served on the panel for a gruesome murder trial last year and how it remains with them still, day and night. The descriptions are reminiscent of symptoms of post traumatic stress disorder. The story, by William Glaberson, is headed "Harrowing Cheshire Case Still Haunts Jurors." A quote:

Jurors in the trial of Steven J. Hayes, sentenced to death for killing three members of the Petit family in Cheshire, Conn., are plagued by sleepless nights, sudden tears and a lost sense of safety.

The next is reported by Elizabeth Rosenthal and headed "African Huts Far From the Grid Glow With Renewable Power." It begins:

KIPTUSURI, Kenya — For Sara Ruto, the desperate yearning for electricity began last year with the purchase of her first cellphone, a lifeline for receiving small money transfers, contacting relatives in the city or checking chicken prices at the nearest market.

Charging the phone was no simple matter in this farming village far from Kenya’s electric grid.

Every week, Ms. Ruto walked two miles to hire a motorcycle taxi for the three-hour ride to Mogotio, the nearest town with electricity. There, she dropped off her cellphone at a store that recharges phones for 30 cents. Yet the service was in such demand that she had to leave it behind for three full days before returning.

That wearying routine ended in February when the family sold some animals to buy a small Chinese-made solar power system for about $80. Now balanced precariously atop their tin roof, a lone solar panel provides enough electricity to charge the phone and run four bright overhead lights with switches.

The third, titled "Coupons for Patients, but Higher Bills for Insurers," by Andrew Pollack, reports on the tension between insurers and drug makers. To encourage the use of generics, insurance companies set the copay cost for brand name drugs high. But drug companies may give coupons to cover the cost of the copay so that patients can afford the name brand drugs. The story begins:
EXECUTIVES of a small insurance company in Albany were mystified when, almost overnight, its payments for a certain class of antibiotics nearly doubled, threatening to add about a half-million dollars annually in costs.

The reason, it turned out, was that patients were using a card distributed by the maker of an expensive antibiotic used to treat acne, sharply reducing their insurance co-payments. With their out-of-pocket costs much lower, consumers had switched from generic alternatives to the more expensive drug.

With drug prices rising and many people out of work, pharmaceutical companies are increasingly helping patients with their co-payments. The use of such co-payment cards and coupons and other types of discounts has more than tripled since mid-2006, according to IMS Health, an information company that tracks the pharmaceutical industry.

Last month, for instance, Pfizer introduced a new card that can reduce the co-pay on its blockbuster drug Lipitor to $4 a month, a savings of up to $50. That brings the out-of-pocket cost in line with what consumers might pay at Wal-Mart for a generic version of a competing cholesterol-lowering drug.

Drug companies say the plans help some patients afford medicines that they otherwise could not.

But health insurers and some consumer groups say that in many cases, the coupons are just marketing gimmicks that are leading to an overall increase in health care costs. That is because they circumvent the system of higher co-pays on costlier drugs that insurers use to encourage consumers to use less expensive products.

Posted by Marcia Oddi on Sunday, January 02, 2011
Posted to General News