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Monday, February 28, 2011

Ind. Courts - "U.S. District Court in Indianapolis names new magistrate judge"

The IndyStar has the story here. A quote:

"Denise K. LaRue, an employment law attorney in Indianapolis, will fill the new position."
There reportedly is a press release, but the ILB apparently is not on the Court's list. And the release is not yet posted on the Court's site.

Posted by Marcia Oddi on Monday, February 28, 2011
Posted to Indiana Courts

Ind. Gov't. - "The spectacle of Democratic state legislators from Wisconsin and Indiana washing their underwear in motel sinks across state lines in order to avoid casting their votes back home is extraordinary"

That is the lede to this newly-posted op-ed column on the Washington Post website.

Posted by Marcia Oddi on Monday, February 28, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 5 today (and 17 NFP)

For publication opinions today (5):

In B & B, LLC v. Lake Erie Land Company , a 20-page opinion, Judge Baker writes:

In this case of first impression, we consider whether a landowner, who raises the subterranean water table on his land and creates a federally regulated wetland, may invoke the common enemy doctrine of water diversion and shield himself from liability to adjoining landowners whose property also became federally regulated wetlands? We answer this question in the negative and conclude that the trial court erroneously granted the defendant-landowner’s motion for a judgment on the evidence.

Appellant-plaintiff B&B, LLC (B&B) appeals the trial court’s grant of judgment on the evidence with regard to its claims against appellee-defendant Lake Erie Land Company (LEL) for trespass, nuisance, and negligence. Specifically, B&B maintains that the order granting LEL’s motion for judgment on the evidence cannot stand because LEL failed to raise the common enemy doctrine as an affirmative defense in the pleadings and at trial. B&B also argues that the trial court misconstrued the evidence and improperly applied the common enemy doctrine in these circumstances. Moreover, B&B maintains that the trial court erred in determining that LEL did not commit an act of trespass as a matter of law and that the evidence clearly demonstrated that LEL breached a duty that it owed to it.

We conclude that the defense of the common enemy doctrine was properly raised and presented at trial. However, we find that the trial court erred in determining that that B&B’s action was barred by the common enemy doctrine and that its claims against LEL should have been permitted to proceed. Thus, we reverse the trial court’s grant of LEL’s motion for judgment on the evidence and remand for further proceedings consistent with this opinion. * * *

In light of our discussion above, we conclude that the issues pertaining to groundwater and surface water that related to the common enemy doctrine were tried by the parties’ consent, even though LEL did not raise the doctrine as an affirmative defense. Moreover, because the water in question in this instance was groundwater, B&B’s action against LEL was not precluded by the common enemy doctrine. B&B presented sufficient evidence in its case-in-chief establishing that LEL undertook a duty and breached that duty by not stopping the propagation of wetland species that culminated in the establishment of the wetlands on B&B’s parcel. Finally, we conclude that B&B presented sufficient evidence to support a claim for its causes of action against LEL. Thus, the trial court erred in granting LEL’s motion for judgment on the evidence.

In Hannah Lakes v. Grange Mutual Casualty Company , an 18-page opinion reversing the trial court finding that no uninsured motorist coverage was available to plaintiff, Judge Riley concludes:
We are mindful that courts may assume that an enactment of the Legislature changing a statute was a response to an interpretation placed upon that statute by the courts. Huff v. Biomet, Inc., 654 N.E.2d 830, 834 (Ind. Ct. App. 1995). In that regard, when the Legislature replaces the provision of an act which has been construed by the courts, it is presumed that it is responding to those appellate decisions which construed the legislation. Egan v. Bass, 644 N.E.2d 1272, 1274 (Ind. Ct. App. 1994).

It is evident that in the years since its inception, Indiana’s uninsured/underinsured motorist statute has undergone significant modification, culminating into an expansion of the underinsured liability coverage. See DePrizio, 705 N.E.2d at 461. We find that this history of expanding the availability of uninsured and underinsured motorist coverage manifests an intent by our Legislature to give insureds the opportunity for full compensation for injuries inflicted by financially irresponsible motorists. Thus, for the 1994 amendment to have any purpose, both the per person limit and per accident limit for underinsured coverage must be read as being $50,000 per person; reading the provision otherwise would make the coverage illusory as discussed in Richie. See Richie, 540 N.E.2d at 30-31. Accordingly, today, we expressly disagree with Petty, which lowered the UIM coverage to $25,000 per person and placed claimants back in the position they held between 1988 and 1994 when claimants paid a premium for mandatory UIM coverage that was illusory and allowed insurance companies to receive a windfall by collecting premiums without carrying the corresponding risk of loss. Because we now hold that the mandatory per person limit for underinsured coverage pursuant to I.C. § 27-7-5-2 is $50,000, we conclude that Hannah’s available UIM coverage under Grange Mutual’s coverage is $44,900.

Based on the foregoing, we conclude that Hannah is entitled to underinsured motorist coverage under Grange Mutual’s policy for an available per person limit of $44,900.Reversed.

In Derrick Smith v. State of Indiana , a 10-page opinion, Judge Crone writes:
Derrick Smith was charged with multiple drug offenses. At each of the first three hearings in his case and before he was represented by counsel, Smith orally moved for a speedy trial pursuant to Indiana Criminal Rule 4(B). The trial court noted his requests and recommended that he consult an attorney and have the attorney file a written motion. After seventy days passed, Smith filed a “Motion to Dismiss” seeking discharge pursuant to Indiana Criminal Rule 4(B). Appellant’s App. at 39. The trial court released him from incarceration, but did not dismiss the charges because it found that Smith had failed to object to the setting of his trial outside the seventy-day period. Smith ultimately was convicted of conspiracy to commit dealing in cocaine and was sentenced. Smith now appeals, arguing that the trial court erred by not dismissing the charges. The State contends that Smith waived the Criminal Rule 4(B) issue because he did not object to his trial setting and did not file a written motion. We conclude that Smith did not waive this issue. Because the charges should have been dismissed, we vacate his conviction.
In Tommie L. Dye v. State of Indiana , a 7-page opinion, Judge Riley writes:
Appellant-Defendant, Tommie L. Dye (Dye), appeals his conviction for failure to register as a sex offender, a Class C felony, Ind. Code § 11-8-8-17. We reverse. * * *

Given the fact that Dye is illiterate, was not assisted when registering, and complied with I.C. § 11-8-8-12(c) by appearing in person every seven days, we find that the evidence is insufficient to convict him of failing to register as a sex offender.

In David E. Schalk v. State of Indiana , a 10-page opinion involving a self-represented attorney, Judge Najam writes:
David E. Schalk appeals his conviction for Attempted Possession of Marijuana, as a Class A misdemeanor, following a bench trial. Schalk, an attorney, arranged a drug buy with a State witness. His ostensible purpose was to prove that the witness, a confidential informant, was actively dealing drugs and, thus, to discredit the witness who was scheduled to testify against his client at trial. Schalk contends that his conduct did not constitute a criminal offense because he was acting only in the defense of his client, that he did not intend to take possession of the drugs but only to deliver the drugs to law enforcement or the court for use at his client’s trial, and, further, that his conduct was no different than that of prosecutors, police officers and confidential informants when they plan and execute a controlled drug buy. Schalk asserts numerous grounds for error with a common theme, namely, that his conduct was lawful and that the evidence was insufficient to support his conviction. We affirm.
NFP civil opinions today (6):

Term. of Parent-Child Rel. of K.S.; T.S. & R.D. v. IDCS (NFP)

M.A.G. v. J.G. (NFP)

Rebecca Zoborosky v. Brian Zoborosky (NFP)

The Paternity of M.C.; A.H. . M.C. (NFP)

Gregory Sausaman v. Jennifer (Hutchens) Sausaman (NFP)

Angela L. Bauer v. David B. Bauer (NFP)

NFP criminal opinions today (11):

Jezrael Vaughn v. State of Indiana (NFP)

Terrence T. Miller v. State of Indiana (NFP)

Eric Markwith v. State of Indiana (NFP)

Khaleeq Williams v. State of Indiana (NFP)

Barry Johnson v. State of Indiana (NFP)

Tyrone Jones v. State of Indiana (NFP)

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

Constance Phillips v. State of Indiana (NFP)

Merritt A. Salyer v. State of Indiana (NFP)

Gregory Jacob v. State of Indiana (NFP)

Eric Daniels v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 28, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - "Bailly activists weigh in on nuclear bill "

People who don't live in NW Indiana may not remember the proposed Bailly Nuclear Power Plant in Porter County, proposed to be built right on the shore of Lake Michigan - plans were halted in 1981. This was before the Marble Hill closure, where construction was well underway when it was canceled in 1984.

Diane Krieger Spivak of the Gary Post-Tribune has a really interesting, long story today, at least to those of us who grew up two miles from the proposed Bailly site, on pending SB 251 and the newly-energized Bailly proponents and opponents. The story begins:

Those who fought both for and against NIPSCO’s failed proposal to build the $1.8 billion Bailly Nuclear 1 Power Plant in Porter County during the 1970s and 1980s have weighed in on a bill, slated to go before the Indiana House this week, that promises incentives to utilities to build Indiana’s first nuclear power plants.

Authors of Senate Bill 251, which passed the Senate on Wednesday and moves to the House on Monday, say it would allow the state to provide enough power for its future needs. Opponents say it will encourage the pursuit of high-risk energy, such as nuclear power, as well as immediately impose the cost of those pursuits on rate payers.

A great old photo from 1979 shows where the nuclear plant was to be sited, pointing out that: "The pilings in the sand to the left of the old plant would have provided the foundation."

For background, start with this ILB entry from Feb. 11, 2011.

Posted by Marcia Oddi on Monday, February 28, 2011
Posted to Indiana Law

Courts - SCOTUS rules today on reach of confrontation clause [Updated]

The opinion is Michigan v. Bryant.

Sentencing Law blog has the first entry I've seen on today's opinion.

[More] A brief AP story notes: "Justice Sonia Sotomayor wrote the court's majority opinion over a furious dissent from Justice Antonin Scalia."

[Updated] And you may want to read this entry by Orin Kerr at the Volokh Conspiracy.

Posted by Marcia Oddi on Monday, February 28, 2011
Posted to Courts in general

Courts - Likely just as true here as in Canada

How Appealing points to an article in the Vancouver Sun headed "Legal system doesn't work for ordinary people, top judge says."

Posted by Marcia Oddi on Monday, February 28, 2011
Posted to Courts in general

Ind. Gov't. - "Of the three governors, Mr. Daniels, who is in his second term, is considered something of a role model for the others"

That is a quote from this Feb. 27 NYT article by Monica Davey and Jeff Zeleny, headed "A Three-Man Band of Budget Cutters," that begins:

In private, three of the Republican governors at the center of a growing national debate over public sector workers commiserate in telephone calls and e-mail messages. In public, the three — now members, it seems, of a newly established fraternity — sound like one another’s biggest boosters.
The three are Gov. Scott Walker of Wisconsin, Gov. Mitch Daniels of Indiana, and Gov. Chris Christie of New Jersey.

Posted by Marcia Oddi on Monday, February 28, 2011
Posted to Indiana Government

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, February 27, 2011:

From Saturday, February 26, 2011:

From late Friday, February 25, 2011:

Posted by Marcia Oddi on Monday, February 28, 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 2/28/11):

Thursday, March 3rd

Next week's oral arguments before the Supreme Court (week of 3/7/11):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 3/7/11):

Tuesday, March 1st

Wednesday, March 2nd

Friday, March 4th

Next week's oral arguments before the Court of Appeals (week of 3/7/11):

Wednesday, March 9th

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, February 28, 2011
Posted to Upcoming Oral Arguments

Sunday, February 27, 2011

Environment - Wood-fired outdoor boilers rule up for final adoption Wed. by the Indiana APCB [Updated]

Five years in the making, a rule to regulate the use of wood-fired outdoor boilers is up for final adoption Wed. by the APCB.

An AP story today in the Lafayette Journal Courier begins:

INDIANAPOLIS — Activists warn that smoky exhaust from the outdoor wood-burning furnaces that thousands of Indiana homeowners use to heat their homes is harming the health of nearby residents, and they hope to persuade a state board to toughen up Indiana’s first restrictions on them.

The Indiana Air Pollution Control Board is set to vote Wednesday on final approval of the rules after giving them its preliminary nod in September.

But activists contend that as written, Indiana’s first statewide rules on the stand-alone furnaces called wood boilers or hydronic heaters don’t go nearly far enough to protect people living near them from the irritating smoke-clouds that older models can release.

The story concludes:
Perras said she hopes that reality will convince the board to add a nuisance provision to the rules allowing homeowners to submit to IDEM inspectors photos or video or the smoke clouds they confront to prompt intervention. She said her proposal is modeled after a system Maine uses to help aggrieved homeowners.

Susan Bem, an environmental manager in IDEM’s rule development section, said it’s concerned about the possibility that the video or images could be altered to make smoke appear denser than it actually was.

Perras said Indiana could address such concerns by stipulating, as Maine has, what type of photographic evidence they would accept, including using state-owned cameras to collect that data.

“Hopefully, we can persuade them to add a few more teeth to the rule,” she said.

[Updated 2/28/11] See also this story in the Lafayette Journal Courier, reported by Dorothy Schneider, headed "State rules for wood furnaces may harden."

Posted by Marcia Oddi on Sunday, February 27, 2011
Posted to Environment

Ind. Gov't. - "There's too much to lose: With stakes so high, a deal may be out of reach"

Here are some highlights from a lengthy, front-page story in the Indianapolis Star today by Mary Beth Schneider and Heather Gillers:

The same dynamic that sent House Democrats running for the Illinois border is what makes finding a way to return to the legislature so difficult.

There are just too many issues right now on a freight train to passage in the Indiana General Assembly that they find objectionable but that the majority Republicans find nothing short of essential. * * *

[Former state Rep. Dave Crooks, a Washington Ind. Democrat ] is among many who say this work stoppage was inevitable since Nov. 2.

That day, Republicans won such dominating majorities in the legislature that it seemed their every wish could be granted. They've tried to put those dreams into law -- from limiting collective bargaining and weakening labor unions to expanding an array of educational reforms. * * *

Some items split Democrats, including the social issues of abortion and guns. A constitutional amendment to ban same-sex marriage passed the House easily, with Bauer and 10 more of the 40 Democrats joining all but one of the 60 Republicans in voting yes.

But two issues united liberals, as well as conservatives: collective bargaining and public education.

"There are some common themes that cut through all of us," Rep. Scott Pelath, D-Michigan City, said of his fellow Democrats, "and support of public education and support of workers' ability to improve each other's lives are pretty bedrock principles."

With numerous bills aimed at labor and public education being passed at a rapid pace in the House, and even more in the Senate, Democrats were reaching the boiling point.

"I had former colleagues warning me up to a month ago that the House was becoming like a pressure cooker," said Crooks, now a radio talk show host. "It was going to explode at any moment. The heat kept getting increased, and they saw no end in sight to the overreach, at least in the Democrats' eyes, of what the Republicans were asking for."

Taken together, Crooks said, they amounted to far more significant changes to Indiana than the one collective-bargaining bill in Wisconsin that has shut down that state's Assembly as Democratic senators there also fled to Illinois.

The tipping point, House Democrats said, came when Republicans decided to push the so-called "right to work" bill -- which bars unions and companies from negotiating a contract that requires non-members to pay representation fees -- against Gov. Mitch Daniels' advice.

Daniels recognized this session was a tinderbox and didn't want right-to-work to be the match that ignited it, leaving his education agenda in the ashes.

Now that's just what he's worried about. The right-to-work bill was passed by a House committee Monday morning, and by that afternoon, Democrats had shut down the House.

Crooks said Democrats realized that if that bill became law this year, it likely would take them generations to repeal it. Even if they managed to win back the House -- something that almost certainly won't happen soon, because Republicans will draw new legislative maps this year -- the chances of winning the Senate and governor's office any time soon is remote.

In fact, the last time Democrats held all three was in 1965, after the landslide election of President Lyndon Johnson ushered in Democratic control of Indiana's Statehouse. They used their power that year to repeal a right-to-work law the Republicans had passed in the 1950s. * * *

Daniels said it is "possible for there to be overreach, but not on these things they said they walked out on."

Scanning the list of bills that Democrats said they had concerns about, Daniels said: "I didn't find immigration on here. I didn't find guns on here. I didn't find abortion on here. That's why I think it is so transparently false that there's anything extreme about it. Maybe they could have made that case about some things that aren't on the list, not what's here."

Niki Kelly of the Fort Wayne Journal Gazette reports today under the heading "End of stalemate hard to see
But observers say right-to-work holdout losing luster."
Some quotes:
It’s hard to predict how the boycott will end without understanding its beginning, which came Nov. 2 when Republicans won significant majorities in both the House and Senate.

The GOP in the House, especially, has been making the most of a 60-40 advantage.

Republicans have been pushing hard on an agenda that House Democrats have bristled against all session. There have been contentious hearings on labor bills and unemployment benefit cuts. The debates on charter schools and vouchers were long and emotional. The vote to add a gay marriage ban to the state constitution was one Democrats had avoided for years.

Then on Monday, the controversial right-to-work bill received a hearing in a House committee. Dozens of opponents were cut off from testifying on the legislation, and Republicans approved the bill along party lines.

Democrats left the state Tuesday in an attempt to kill the bill, which was up against a legislative deadline.

On Wednesday, Senate leadership put a nail in the coffin of right-to-work legislation, saying that chamber would not deal with the issue this year except to assign it to a summer study committee.

But Democrats didn’t come back. They instead added to their list of objections.

They said the Republicans’ agenda was radical and had to be stopped.

Republicans, meanwhile, said there was nothing radical about providing more educational choices for parents and loosening the hold unions have on the state.

[Andy Downs, a political science professor at IPFW] said Republicans need to be careful of overreaching.

He compared it to President Obama winning in 2008, acting on his agenda and then witnessing a mass Republican win in the 2010 because voters thought Obama had gone too far, too fast.

“When you are in the majority, you have to be careful about trying to get too much done all at once,” Downs said.

Both Downs and Clark also warned that Democrats have complicated the situation by broadening the scope of the reason for their walkout.

That makes it hard to pinpoint what would count as a victory for them to come back to the Statehouse.

“They widened the net, and now it just looks like they’re whiners,” Clark said.

And House Speaker Brian Bosma, R-Indianapolis, gave them somewhat of a disincentive to return Monday by trying to push back legislative deadlines. That would keep alive, for instance, an education voucher bill that many House Democrats oppose.

It also would salvage the traditional budget bill – House Bill 1001 – even though insiders say there are numerous procedural ways to have a state budget without that specific bill.

Eric Bradner of the Evansville Courier & Press has a long story today headed "'Attacks' spurred exodus, explains House Minority Leader Patrick Bauer: Dems list steps to Illinois flight." Also Bradner's weekly column, this week headed: "Ind. Assembly boycott inspired by historical Whig perspective."

Posted by Marcia Oddi on Sunday, February 27, 2011
Posted to Indiana Government

Ind. Gov't. - Outmoded language? Details? Substantiation? Transparency?

When taking a look at the most recent printing of this year's budget bill, HB 1001, in putting together the Feb. 25th ILB entry headed "How are legislators paid?" I ran into something interesting.

The legislative appropriation provisions begin on p. 3. On p. 7, line 30 begins an entry on legislative printing and distribution.

Nearly $1 million is to be appropriated for each of the upcoming fiscal years for "printing and distribution."

The language is quoted below. I am intrigued with the provision: "Upon completion of the distribution of the Acts and the supplements to the Indiana Code, as provided in IC 2-6-1.5, remaining copies may be sold at a price or prices periodically determined by the legislative council."

It is my understanding that the Acts are no longer printed and that it has been many years since the general public has been able to purchase copies of the printed Indiana Code.

Is there a detailed breakdown of the numbers behind the nearly $1 million per year appropriations? And would it matter, since the provision continues with "open-ended" language -- "If the above appropriations for the printing and distribution of documents published by the legislative council are insufficient to pay all of the necessary expenses incurred, there are hereby appropriated such sums as may be necessary to pay such expenses."

It would be nice to see how close the "guesstimated" amount for the current biennium has come to the amounts actually expended in the past. With a detailed breakdown.

Here is the language for the coming biennium:

PRINTING AND DISTRIBUTION

Total Operating Expense................... 939,400 ........... 975,000

The above funds are appropriated for the printing and distribution of documents
published by the legislative council. These documents include journals, bills,
resolutions, enrolled documents, the acts of the first and second regular sessions
of the 117th general assembly, the supplements to the Indiana Code for fiscal years
2011-2012 and 2012-2013, and the publication of the Indiana Administrative Code
and the Indiana Register. Upon completion of the distribution of the Acts and the
supplements to the Indiana Code, as provided in IC 2-6-1.5, remaining copies may
be sold at a price or prices periodically determined by the legislative council.
If
the above appropriations for the printing and distribution of documents published
by the legislative council are insufficient to pay all of the necessary expenses
incurred, there are hereby appropriated such sums as may be necessary to pay such
expenses.

This is but one paragraph in the budget bill, but it raises a larger question ...

Looking at the State Transparency Portal, I can find the budget requests and justifications for both the judicial branch and the executive branch, but nothing for the legislative branch. Many of these entities have gone through at least two rounds of public grillings before the Budget Committee and the legislative committees. All of them have submitted detailed written requests. Is the legislative branch exempt from all this, or have I missed it?

Posted by Marcia Oddi on Sunday, February 27, 2011
Posted to Indiana Government

Not law - "So You Want to Be a Journalist"

Posted by Marcia Oddi on Sunday, February 27, 2011
Posted to General News

Saturday, February 26, 2011

Ind. Gov't. - More on "The Governor Who Cut His State Down to Size "

Updating this ILB entry from earlier today, Steven Greenhouse of the NY Times has a story today headed "Indiana Informs Wisconsin’s Push." It begins:

MADISON, Wis. — Gov. Scott Walker of Wisconsin and other officials who are pushing to eliminate or weaken collective bargaining by government employees say their goal is to save millions of dollars and increase government’s flexibility to run its operations.

The experience of a nearby state, Indiana, where Gov. Mitch Daniels eliminated bargaining for state employees six years ago, shows just how much is at stake, both for the government and for workers. His 2005 executive order has had a sweeping impact: no raises for state employees in some years, the elimination of seniority preferences and a far greater freedom to consolidate state operations or outsource them to private companies.

Evaluating the success of the policy depends on where you sit.

Posted by Marcia Oddi on Saturday, February 26, 2011
Posted to Indiana Government

Ind. Courts - "Brant Parry takes over Howard Superior 2"

Mike Fletcher reports in the Kokomo Tribune:

Attorney Brant Parry is following in his father’s footsteps.

The son of former Howard Superior Court 1 Judge Dennis H. Parry, Brant Parry was appointed Howard Superior Court 2 judge on Friday by Gov. Mitch Daniels.

“I’m really excited about it,” Parry said. “It’s definitely going to be a challenge. I’m looking forward to working with the other judges, law enforcement and the courthouse staff.”

Parry succeeds Judge Stephen Jessup, who resigned Jan. 1 after 17 years.

Posted by Marcia Oddi on Saturday, February 26, 2011
Posted to Indiana Courts

Ind. Gov't. - "Indiana House boycott new twist in long rivalry" [Updated]

Tom Davies of the AP has a great, long story, here today in the Lafayette Journal Courier. A few quotes:

The rival leaders are a political odd couple who share a long history.

Bauer, of South Bend, became a legislator in 1970 and has seemingly delighted in being a foil to Republican Gov. Mitch Daniels, who after a 2005 Democratic one-day walkout called Bauer a "throwback politician" whose party members had "car bombed" the legislative process.

Bosma, of Indianapolis, is the son of a state senator who joined the House in 1986 and led minority Republicans in paralyzing action for a week in 2004 with boycotts in protest of a "tyranny of the majority" under then-Speaker Bauer.

Bosma, a dapper dresser who is well over 6 feet tall, and Bauer, frequently rumpled with an often-parodied toupee who is closer to 5 feet tall, have traded control of the speaker's gavel over much of the past decade - with Bauer leading the chamber for six years and Bosma in his third year.

The must-read story describes four previous House walkouts involving the two leaders.

[Updated at 4:30 pm]
Well, now I've located an earlier story by Niki Kelly of the Fort Wayne Journal Gazette, headed "This exodus isn't first or most colorful." I referenced it here on Thursday. Some quotes:
The most recent walkout was in 2005 when House Democrats refused to leave caucus in a squabble over a variety of issues, including a voter identification bill. More than 130 bills died in the one-day event that Gov. Mitch Daniels famously called an "11th-hour car bombing."

Back in 2001, it was House Republicans who refused to come to the floor for three days because of concerns over new legislative boundaries. No bills were killed, though.

Before that, House Democrats abandoned the Statehouse for about two weeks in 1995 over another redistricting squabble.

That walkout came when Republicans tried to reduce the number of House seats from 100 to 99 and redraw the districts. They contended it was to avoid confusion and difficulty in the case of a split chamber.

But Democrats, buoyed by legal opinions and favorable news coverage, stayed away saying the move was unconstitutional because redistricting can be done only after a census or a under a court order.

Kelly does not mention one (non-redistricting) walkout cited in today's AP story:
In 2004, Republicans blocked action for a week by staying off the floor because then-Speaker Bauer refused to let a proposed constitutional amendment to ban gay marriage even be debated. Republicans won a 52-48 majority in the 2004 election that also saw Daniels win the governor's office.
But Kelly's story continues:
Perhaps Indiana's most spectacular party bolt took place in 1925 when Senate Republicans tried to alter the congressional districts.

Posted by Marcia Oddi on Saturday, February 26, 2011
Posted to Indiana Government

Ind. Gov't. - "The Governor Who Cut His State Down to Size "

A front-page WSJ story today features Indiana Governor Mitch Daniels. A quote from the long story:

In any other year, a campaign platform that gloomy would render a politician toxic. Today, with concerns over the nation's fiscal health on the rise, the Indiana Republican's wonkish bravado is making some think he is a good fit for the moment.

If the time is indeed right for Mr. Daniels's get-tough message, the angry budget standoffs in states such as Wisconsin, Ohio and New Jersey are also shining a new light on his credentials as a messenger. Mr. Daniels rescinded collective-bargaining rights for state employees six years ago—long before Wisconsin Gov. Scott Walker caused a firestorm by putting the same issue on the table.

Mr. Daniels also cut spending, trimmed the state work force to its smallest in decades, and turned a yawning deficit into a surplus, with only scattered outbursts of popular anger along the way.

Posted by Marcia Oddi on Saturday, February 26, 2011
Posted to Indiana Government

Ind. Courts - "Daniels appoints new Portland City Court judge"

From the Muncie Star-Press: "Gov. Mitch Daniels on Friday announced the appointment of Republican Donald C. Gillespie as judge of Portland City Court."

Posted by Marcia Oddi on Saturday, February 26, 2011
Posted to Indiana Courts

Ind. Gov't. - "Q&A: A guide to the Indiana House standoff"

Lesley Stedman Weidenbener has this "guide" in today's Louisville Courier Journal. Some quotes:

Q: Are Democrats being paid while they’re off in Urbana, Ill.?

A: Yes. Lawmakers receive annual salaries that don’t change based on how much or little they’re at the Statehouse.

They also receive per-diem checks to help them pay the costs of staying in Indianapolis. Democrats say they will repay the state for the per-diem payments they receive while they are in Illinois.

Q: Can Republicans do anything to force Democrats back to the Statehouse?

A: Daniels says he has the authority to send the state police to round up Democrats — as long as they are in Indiana. However, he has said repeatedly he would not do so.

Bosma only has the authority to send the House doorkeepers to find Democrats. But Bosma does have some authority to fine or censure Democrats, something he has also said he won’t do.

Eric Bradner of the Evansville Courier & Press has this report from the "front," headed "Indiana Democrats staying put in Urbana for weekend: Monday looking like no-show, too."

Angela Mapes Turner of the Fort Wayne Journal Gazette also has a story bylined Urbana, Ill. -- headed "Holdouts awaiting change in tone."

Posted by Marcia Oddi on Saturday, February 26, 2011
Posted to Indiana Government

Ind. Courts - "Lawyer charged with sneaking phone to inmate"

Sophia Voravong reports today in the Lafayette Journal Courier:

A Lake County-based attorney is accused of providing a cell phone to a client-inmate at the Tippecanoe County Jail.

Shante P. Henry, 35, of Merrillville was charged Feb. 17 in Tippecanoe Superior Court 1 with conspiracy to commit trafficking with an inmate and two counts of trafficking with an inmate.

Henry represented the inmate in an armed robbery case last year.

Two of the three counts are felonies.

Henry was arrested this past Tuesday and released from the Tippecanoe County Jail the same day after posting a $10,000 surety bond. The charges against her were unsealed Thursday.

A message left Friday at Henry's Crown Point-based law firm was not returned.

Posted by Marcia Oddi on Saturday, February 26, 2011
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending February 25, 2011

Here is the Clerk's transfer list for the week ending February 25, 2011. It is two pages (and 29 cases) long.

Four transfers, including one with remand, were granted for the week ending February 25:

__________

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 Saturday, February 26, 2011
Posted to Indiana Transfer Lists

Not Law - Why do the U.S. Marines sing about the "shores of Tripoli"?

The "Marines' Hymn" ran through my mind this week with the news of a ferry full of U.S. citizens docked in Tripoli, waiting calmer waters before it could sail to Malta, a safer port. What had our U.S. Marines been doing in Tripoli in some earlier time?

Wikipedia told me: "The line 'To the shores of Tripoli' refers to the First Barbary War." I admit I needed more help than that and so looked up the First Barbary War. The long entry begins:

The First Barbary War (1801–1805), also known as the Barbary Coast War or the Tripolitan War, was the first of two wars fought between the United States of America and the North African Muslim states known collectively as the Barbary States. These were the independent Sultanate of Morocco and Tripoli, which was a quasi-independent entity nominally belonging to the Ottoman Empire.

Pirate ships and crews from the North African states of Tripoli, Tunis, and Algiers (the Barbary Coast), although nominally governed by the Ottoman Empire, were the scourge of the Mediterranean. Capturing merchant ships and enslaving or ransoming their crews provided the Muslim rulers of these nations with wealth and naval power. In fact, the Roman Catholic Trinitarian Order or Order of "Mathurins" had operated from France for centuries with the special mission of collecting and disbursing funds for the relief and ransom of prisoners of Mediterranean pirates.

The war stemmed from the Barbary pirates’ attacks upon American merchant shipping in an attempt to extort ransom for the lives of captured sailors, and ultimately tribute from the United States to avoid further attacks, much like their standard operating procedure with the various European states.

Posted by Marcia Oddi on Saturday, February 26, 2011
Posted to General News

Ind. Law - More on "Indiana Tech considers adding law school"

Updating this ILB entry from yesterday, by searching the ILB for the term "cash cow" I immediately located three earlier entries:

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...

Posted in The Indiana Law Blog on January 9, 2011 03:26 PM

Law - GAO report blames U.S. News law school rankings for rising cost of legal education

See Ellie Mystal's Above the Law entry here. It begins:The Government Accountability Office has released a new report on the rising cost of legal education. Who is to blame? Not the ABA. Not university presidents using their law schools as...

Posted in The Indiana Law Blog on October 27, 2009 01:12 PM

Law - "A Deluge of Law Schools"

Leigh Jones of The National Law Journal writes today:As many as 10 new law schools are in the works, with the majority of them proposed in the eastern part of the country. While their proponents insist that the schools will...

Posted in The Indiana Law Blog on June 4, 2008 09:24 AM

Posted by Marcia Oddi on Saturday, February 26, 2011
Posted to Indiana Law

Courts - On your way to prison? Hire a prison consultant

"Ex-cons offer prison primers for soon-to-be incarcerated execs" is the headline to this long story by Lisa Black of the Chicago Tribune. one of them calls himself a "federal mitigation specialist." More:

The cottage industry is dominated by ex-offenders, retired jailhouse employees and advocates who support prison alternatives. High-profile cases during the 1980s and '90s, including the prosecutions of corporate raider Ivan Boesky and former junk bond financier Michael Milken — both of whom used prison consultants — have helped heighten awareness.

Some criminal defense attorneys remain skeptical, and question whether the consultants can deliver what they promise. But today's economic downturn has provided no shortage of work.

John Webster, a former attorney who served time in federal prison after lying for a client, started the Nashville, Tenn.-based National Prison and Sentencing Consultants in 2002. At first, few people had heard of his industry.

"Now it's gotten to where a lot of people see the need and the benefit," he said. "With the meltdown of the real estate industry, we had a lot more mortgage brokers who were getting indicted." * * *

Over the last two decades, federal officials have ratcheted up the penalties for economic misdeeds, most recently in response to high-profile corporate crimes, such as the collapse of Enron Corp. The harsher sentencing guidelines have resulted in overcrowded prisons and added incentive for defendants to seek help in navigating the complex legal system, criminal defense attorneys say.

Some consultants try to strengthen a defendant's presentencing request to be enrolled in a 500-hour federal drug and alcohol abuse program, which can result in a shorter prison stint. Others document medical reasons that argue why an inmate needs a lower bunk or special diet.

Posted by Marcia Oddi on Saturday, February 26, 2011
Posted to Courts in general

Friday, February 25, 2011

A teaching moment - More on: "Is it usual to use 'big poster/charts' in oral arguments?"

Updating this ILB entry from Jan. 18, 2011, Howard Bashman of How Appealing writes today on "using handouts or demonstrative exhibits at an appellate oral argument." His linked documents - a motion and response - are also instructive.

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to A teaching moment

Environment - "Eli Lilly emitting high levels of pollutants, federal lawsuit alleges" [Updated]

Scott Olson has this story in the IBJ. It begins:

Eli Lilly and Co. could pay millions of dollars in fines for allegedly emitting a high level of hazardous pollutants from its manufacturing plant on South Harding Street in Indianapolis, according to a federal lawsuit.

The complaint, filed Wednesday in U.S. District Court in Indianapolis, accuses the pharmaceutical company of violating the Clean Air Act as well as other national emission standards.

Here is a copy of the 14-page complaint in U.S. v. Eli Lilly, filed Feb. 23, 2011 and entered Feb. 25.

[Updated at 4:30 pm] Well, that was quick! The IBJ is now reporting that Lilly has settled for $337,500. And negotiations have been in process for some time.

[More] See the 8-page stipulation and order of settlement here.

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to Environment

Id. Courts - Supreme Court seeks comments on mortgage foreclosure best practices

The Supreme Court has today posted this order, filed Feb. 23, seeking public comment, though May 30, 2011, on the proposed mortgage foreclosure best practices set out here.

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to Indiana Courts

Ind. Courts - "Distinguished judges to preside at IU Maurer School of Law Moot Court finals"

They include, according to this IU release:

Judging the final round Friday are Judge Michael Kanne of the U.S. Court of Appeals for the Seventh Circuit; Chief Judge Margret G. Robb of the Indiana Court of Appeals; Judge Edward J. Najam of the Indiana Court of Appeals, Judge Viola J. Taliaferro of the Monroe Circuit Court; and Professor Ryan W. Scott of the IU Maurer School of Law.

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to Indiana Courts

Ind. Law - "Indiana Tech considers adding law school"

From the FWJG.

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In The Town of Plainfield, Indiana v. Hoosier Steel, Inc., et al. , a 20-page opinion, Judge Bailey writes:

The Town of Plainfield (“Plainfield”) appeals two orders of the Hendricks Superior Court, one granting partial summary judgment to Paden Engineering Co., Inc. (“Paden”), and one granting partial summary judgment to Merchants Bonding Company and Everest Reinsurance Company (collectively, “the Sureties”), upon Plainfield’s claims for damages for breach of contract and for payment upon a performance bond, respectively. We affirm. * * *

Paden has demonstrated the absence of a genuine issue of material fact and its entitlement to partial summary judgment as a matter of law upon Plainfield’s contractual claim for damages against Paden. The Sureties have demonstrated the absence of a genuine issue of material fact and their entitlement to partial summary judgment as a matter of law upon Plainfield’s contractual claim for payment under a performance bond. Accordingly, the trial court properly granted partial summary judgment to Paden and to the Sureties.

In Brian Holtzleiter v. Angela Holtzleiter , a 13-page opinion, Judge Crone concludes:
In sum, we conclude that under any reasonable application of the facts of this case to the Guidelines, Father has met the requirements of Indiana Code Section 31-16-8-1(2), and therefore we reverse the trial court’s denial of Father’s petition to modify child support. We remand for a new child support order consistent with this opinion. Reversed and remanded.
In Paternity of D.L., et al., C.L. v. Y.B. , a 6-page opinion, Judge Crone writes:
Y.B. (“Mother”) petitions for rehearing in In Re Paternity of D.L., 938 N.E.2d 1221 (Ind. Ct. App. 2010). We grant Y.B.’s petition in order to clarify our opinion but reaffirm it in all respects.
NFP civil opinions today (2):

Knitcraft Corporation v. Raleigh Limited, Inc. (NFP)

D.P.T. Inc., et al. v. Western Union Financial Services (NFP)

NFP criminal opinions today (8):

Monica Sexton v. State of Indiana (NFP)

Timothy J. Wilson v. State of Indiana (NFP)

Jeffery M. Ogle v. State of Indiana (NFP)

Carl S. Howard v. State of Indiana (NFP)

C.C. v. State of Indiana (NFP)

David Pemberton v. State of Indiana (NFP)

Sayburt Huff v. State of Indiana (NFP)

Thomas J. Towne v. Cindy Towne and State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - How are legislators paid?

This is a work in progress. Corrections are welcome. This is always a confusing area, sometimes it seems intentionally so.

1. Legislative salaries. Members of the General Assembly currently receive an annual salary of $22,600. They receive that in advance, two lump sum payments each year.

IC 2-3-1-1 provides:

Sec. 1. (a) The annual salary of the members of the general assembly shall be the following:
(1) Before 2009, eleven thousand six hundred dollars ($11,600).
(2) In 2009 and thereafter, an amount equal to eighteen percent (18%) of the annual salary of a judge under IC 33-38-5-6, as adjusted under IC 33-38-5-8.1.

(b) One-half (1/2) the annual salary shall be paid on the fifteenth day of January, and one-half (1/2) the annual salary shall be paid on the fifteenth day of February.

Once a legislator receives his check, he can resign the next day and still keep it. A legislator who resigns on February 16th can keep the entire year's salary. Some resignations are planned accordingly. And the replacements get paid too.

IC 2-3-1-2(b) ends with a vague statement: "a member of the general assembly is normally required to work more than six hundred (600) hours per year."

A few years ago, Dennis Oxley Sr. suffered a heart attack and was out the whole session. I believe he was paid his entire salary, don't know about per diem.

2. Per Diem. I think the weekly "paycheck" legislators receive is their per diem check and possibly travel. According to this story today, the current per diem allowance is $155/day.

As explained below, legislators also receive a legislative business per diem check when they are not in session, but engaged in "legislative business."

Furthermore, legislators receive a daily "subsistence allowance" each day of the year that the general assembly is not convened in regular or special session. It is about $62/day.

3. Leadership Allowance. Also, as also detailed below, leadership, committee chairs, and the like receive an extra "leadship allowance." I suspect this is paid in a lump sum, but not sure.

4. Travel. Finally, there is another big -- "travel."

___________
Source: The following is language on legislative compensation from the currently in effect budget (HEA 1001(ss)-2009), SECTION 3:

Included in the above appropriations for house and senate expenses are funds for a legislative business per diem allowance, meals, and other usual and customary expenses associated with legislative affairs. Except as provided below, this allowance is to be paid to each member of the general assembly for every day, including Sundays, during which the general assembly is convened in regular or special session, commencing with the day the session is officially convened and concluding with the day the session is adjourned sine die. However, after five (5) consecutive days of recess, the legislative business per diem allowance is to be made on an individual voucher basis until the recess concludes.

Members of the general assembly are entitled, when authorized by the speaker of the house or the president pro tempore of the senate, to the legislative business per diem allowance for each and every day engaged in official business.

The legislative business per diem allowance that each member of the general assembly is entitled to receive equals the maximum daily amount allowable to employees of the executive branch of the federal government for subsistence expenses while away from home in travel status in the Indianapolis area. The legislative business per diem changes each time there is a change in that maximum daily amount.

In addition to the legislative business per diem allowance, each member of the general assembly shall receive the mileage allowance in an amount equal to the standard mileage rates for personally owned transportation equipment established by the federal Internal Revenue Service for each mile necessarily traveled from the member's usual place of residence to the state capitol. However, if the member traveled by a means other than by motor vehicle, and the member's usual place of residence is more than one hundred (100) miles from the state capitol, the member is entitled to reimbursement in an amount equal to the lowest air travel cost incurred in traveling from the usual place of residence to the state capitol. During the period the general assembly is convened in regular or special session, the mileage allowance shall be limited to one (1) round trip each week per member.

Any member of the general assembly who is appointed, by the governor, speaker of the house, president or president pro tempore of the senate, house or senate minority floor leader, or Indiana legislative council to serve on any research, study, or survey committee or commission, or who attends any meetings authorized or convened under the auspices of the Indiana legislative council, including pre-session conferences and federal-state relations conferences, is entitled, when authorized by the legislative council, to receive the legislative business per diem allowance for each day in actual attendance and is also entitled to a mileage allowance, at the rate specified above, for each mile necessarily traveled from the member's usual place of residence to the state capitol, or other in-state site of the committee, commission, or conference. The per diem allowance and the mileage allowance permitted under this paragraph shall be paid from the legislative council appropriation for legislator and lay member travel unless the member is attending an out-of-state meeting, as authorized by the speaker of the house of representatives or the president pro tempore of the senate, in which case the member is entitled to receive:
(1) the legislative business per diem allowance for each day the member is engaged in approved out-of-state travel; and

(2) reimbursement for traveling expenses actually incurred in connection with the member's duties, as provided in the state travel policies and procedures established by the legislative council. * * *

Each member of the general assembly is entitled to a subsistence allowance of forty percent (40%) of the maximum daily amount allowable to employees of the executive branch of the federal government for subsistence expenses while away from home in travel status in the Indianapolis area:
(1) each day that the general assembly is not convened in regular or special session; and
(2) each day after the first session day held in November and before the first session day held in January.

However, the subsistence allowance under subdivision (2) may not be paid with respect to any day after the first session day held in November and before the first session day held in January with respect to which all members of the general assembly are entitled to a legislative business per diem.

The subsistence allowance is payable from the appropriations for legislators' subsistence.

[Senate "leadership allowance"] The officers of the senate are entitled to the following amounts annually in addition to the subsistence allowance: president pro tempore, $7,000; assistant president pro tempore, $3,000; majority floor leader, $5,500; assistant majority floor leaders, $3,500; majority caucus chair, $5,500; assistant majority caucus chairs, $1,500; appropriations committee chair, $5,500; tax and fiscal policy committee chair, $5,500; appropriations committee ranking majority member, $2,000; tax and fiscal policy committee ranking majority member, $2,000; majority whip, $4,000; assistant majority whip, $2,000; minority floor leader, $6,000; minority leader emeritus, $1,500; minority caucus chair, $5,000; minority assistant floor leader, $5,000; appropriations committee ranking minority member, $2,000; tax and fiscal policy committee ranking minority member, $2,000; minority whip(s), $2,000; assistant minority caucus chair(s), $1,000; agriculture and small business committee chair, $1,000; commerce, public policy, and interstate cooperation committee chair, $1,000; corrections, criminal, and civil matters committee chair, $1,000; education and career development chair, $1,000; elections committee chair, $1,000; energy and environmental affairs committee chair, $1,000; pensions and labor committee chair, $1,000; health and provider services committee chair, $1,000; homeland security, transportation, and veterans affairs committee chair, $1,000; insurance and financial institutions committee chair, $1,000; judiciary committee chair, $1,000; local government committee chair, $1,000; utilities and technology committee chair, $1,000; and natural resources committee chair, $1,000. If an officer fills more than one (1) leadership position, the officer shall be paid for the higher paid position.

[House "leadership allowance"] Officers of the house of representatives are entitled to the following amounts annually in addition to the subsistence allowance: speaker of the house, $6,500; speaker pro tempore, $5,000; deputy speaker pro tempore, $1,500; majority leader, $5,000; majority caucus chair, $5,000; assistant majority caucus chair, $1,000; ways and means committee chair, $5,000; ways and means committee ranking majority member, $3,000; ways and means committee, chairman of the education subcommittee, $1,500; speaker pro tempore emeritus, $1,500; budget subcommittee chair, $3,000; majority whip, $3,500; assistant majority whip, $1,000; assistant majority leader, $1,000; minority leader, $5,500; minority caucus chair, $4,500; ways and means committee ranking minority member, $3,500; minority whip, $2,500; assistant minority leader, $4,500; second assistant minority leader, $1,500; and deputy assistant minority leader, $1,000.

If the senate or house of representatives eliminates a committee or officer referenced in this SECTION and replaces the committee or officer with a new committee or position, the foregoing appropriations for subsistence shall be used to pay for the new committee or officer. However, this does not permit any additional amounts to be paid under this SECTION for a replacement committee or officer than would have been spent for the eliminated committee or officer. If the senate or house of representatives creates a new additional committee or officer, or assigns additional duties to an existing officer, the foregoing appropriations for subsistence shall be used to pay for the new committee or officer, or to adjust the annual payments made to the existing officer, in amounts determined by the legislative council.

If the funds appropriated for legislators' subsistence are insufficient to pay all the subsistence incurred, there are hereby appropriated such further sums as may be necessary to pay such subsistence.

Source: The following is language of interest from the current Indiana House Rules:
#3. Quorum. Two-thirds of the members of the House constitute a quorum to do business. (Constitution, Article 4, Section 11.)

#4. Power of Less Than a Quorum to Compel Attendance. Seven (7) members with the Speaker or Speaker Pro Tempore, or eight (8) members in the absence of the Speaker and Speaker Pro Tempore, one member of the majority of whom they shall elect acting Speaker, may call the House to order, compel the attendance of absent members, make an order for their fine and censure and adjourn from day to day until a quorum is in attendance.

#49. Absent Members.

49.1 A member who is absent from the House without excuse may, by order of the members present, be sent for and taken into custody wherever found by the Doorkeeper or other person appointed for that purpose.

49.2 When a member is discharged from custody and admitted to the House, the remaining members shall determine whether a fine, censure or other penalty should be imposed. The House shall determine whether a delinquent member, taken into custody, shall pay the expenses incurred.

#147. Deadline for House Bills.

147.1 During the first regular session, no House bill shall be eligible for consideration on third reading after February 25.

147.2 During the second regular session, no House bill shall be eligible for consideration on third reading after February 3.

147.3 Upon recommendation of the Committee on Rules and Legislative Procedures, this rule may be suspended as to a specific bill by the approval of a constitutional majority.

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to Indiana Government | Legislative Benefits

Ind. Decisions - "Indiana court rejects Kentuckian's claim that casino responsible for gambling losses"

Monday's NFP Court of Appeals decision in the case of Jimmy Vance v. Caesars Entertainment, Inc. (NFP) is the subject of a story today by Grace Schneider in the Louisville Courier Journal. Some quotes:

The Indiana Court of Appeals has rejected a Kentucky man’s arguments that the former Caesars casino bore some responsibility for him getting drunk and losing $75,000 of the house’s money while playing blackjack.

The 3-0 decision this week dealt a second setback to Corbin businessman Jimmy Vance, but his lawyer said Thursday that Vance still may appeal to the Indiana Supreme Court.

“I don’t think the Court of Appeals opinion articulates that the casinos can loan money to people who are drunk,” said Vance’s lawyer, Larry Wilder of Jeffersonville.

Gene Price Jr., of Louisville, who represented the riverboat, said that court found no evidence that Vance was drunk while he was gambling, “which was Horseshoe’s contention from the beginning.”

The case is shaping up as yet another failed attempt by a gambler to convince a court that a casino should be liable for serving him alcohol in excess and extending credit. Addicted gamblers in Indiana and elsewhere around the country have tried similar claims, but courts almost always rule for the casinos. * * *

During a trial last March, Wilder used casino videotape to show Vance drank at least seven bourbon and waters during a September 2004 visit when he also signed seven credit markers, or bank drafts, for a total of $75,000. Casino employees testified that Vance didn’t appear intoxicated or they wouldn’t have provided him credit.

Judge Larry Blanton of Orange County, who served as special judge, ruled last July that Vance failed to provide evidence that he was intoxicated. He also noted that Vance wasn’t drunk when he signed the original contract arranging to borrow money when he wanted it for gambling.

Here is a July 10, 2010 ILB entry, with links to earlier stories.

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - Interesting item from Senator Delph

Senator Milke Delph, who just took the Indiana bar this week, has posted this entry today in his Senator Delph's Blog. Here is a snippet:

Mr. Pence was equally outstanding focusing again on his desire to restore Federalism and Original Intent into our balance of powers. He clearly understands that the Federal Government is involved in much more than our Founders believed was to be within its jurisdiction. We have allowed the courts over time through the common law system to re-write the plain meaning of our founding text without any real direct authority to do so.

This is really going to be the rub with my friends in the Tea Party who continue to pull out the text of the US Constitution and ask if not demand why we aren't following the language. The answer is over 200 years of case law or common law which has been allowed to interpret away the plain meaning. Can't wait for the moment that Speaker Boehner in response to a question turns and says, "Well the US Supreme Court says..." That's when the sparks will really start to fly.

Hmm, hope there were no questions on the bar exam about Marbury v. Madison.

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to Indiana Law

Environment - "Clinton: More Ethanol Could Spark Food Riots"

A story by Mary Clare Jalonick of the AP begins:

WASHINGTON -- With global food prices rising and more corn being diverted to the production of ethanol fuel, Bill Clinton is warning of food riots in poor nations.

The former president told farmers and Agriculture Department employees on Thursday that while producing biofuels is important for reducing America's dependence on foreign oil, farmers should also look beyond domestic production and consider the needs of developing countries.

"I think the best thing to say is we have to become energy independent, but we don't want to do it at the cost of food riots," Clinton said.

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to Environment

Ind. Gov't. - "Union County Attorney: 'Sheriff must live in county'"

Some quotes from an interesting story in the Union County Liberty Herald, reported by Bev Woodruff:

Last Thursday, during the Union County Council meeting, county attorney Jim Williams had news for Union County Sheriff Eric Cantrell; that Cantrell probably didn’t expect to hear.

Williams answered the question of whether Cantrell could be granted a raise this year. The answer was a definitive no. Williams also told Cantrell the county council could petition to have him removed from office because he does not reside in Union County.

Williams explained the state statute that addresses a county sheriff’s pay. The statute says the sheriff’s salary “may” be half the prosecutor’s salary. He further explained the fact that language states “may” means it is discretionary, not mandatory. Williams said if the legislature intended it to be mandatory the wording would have been “shall,” not “may.”

“I want you and every other sheriff after you to get out of your heads it is mandatory to be paid half the prosecutors salary, it's not,” Williams told Cantrell. “This whole notion it’s mandatory is simply not true.”

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to Indiana Government

Ind. Courts - "Jeffersonville redistricting opponent says Census data supports lawsuit" [Updated]

A Feb. 23rd story by Ben Zion Hershberg in the Louisville Courier Journal begins:

A man who has filed suit over Jeffersonville’s redistricting plan said Wednesday that new U.S. Census data supports his claims that residents of the city’s recently annexed areas were disenfranchised.

And if a federal magistrate agrees, both sides said, it could force a special primary election because the filing deadline for the May primary — in with city council districts were based on older data — has already passed.

Bruce Herdt, who sued over the plan last year, said that he plans to introduce the new Census data into his lawsuit as soon as the judge allows.

Here is a list of earlier, related ILB entries.

[Updated at 10:24 am] David Mann of the Clark County News & Tribune has this story this morning that begins:

JEFFERSONVILLE — Legal action related to Jeffersonville’s recent redistricting has been delayed, but new Census numbers are giving new perspective to the case.

The Jeffersonville City Council redistricted last year, going from a five-district to a six-district council. That move came after an annexation and reclassification that took Jeffersonville from third class to second class under Indiana’s population-based classification system. Shortly after that, a lawsuit was filed claiming that the population numbers used in redistricting — based on the 2000 Census — were too old and therefore didn’t account for growth in recently annexed outskirts.

A pretrial conference on the lawsuit Thursday was postponed, as a new magistrate was assigned to the case, which was filed in U.S. Federal District Court in New Albany. A new date has yet to be determined.

When the council voted to redistrict last fall, numbers from the 2010 Census weren’t available.

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to Indiana Courts

Ind. Courts - "Appeals Court Tackles Tough Social Media Questions"

It took place on Thursday, February 24th at 3:00 PM

Lamar M. Crawford v. State of Indiana (49A05-1006-CR-377) - Appellant, Lamar Crawford, appeals his conviction for Murder, wherein he received an 85 year sentence. Crawford presents us with two issues on appeal: First, he contends that the trial court abused its discretion by denying his request for production of film footage captured by a non-party television company documenting the investigation. In response, the State argues that Crawford's request was not particular enough for the trial court to grant. Second, Crawford argues that the evidence was insufficient to support his conviction for murder because there was nothing in the evidence that directly contradicted his theory that an intruder stabbed and murdered his uncle while Crawford helped defend his uncle. The Scheduled Panel Members are: Chief Judge Robb, Judges Riley and Kirsch. [Where: Goodrich Room of the Lilly Library, Wabash College, Crawfordsville, Indiana]
Here is the writeup from the same afternoon, reported by Howard W. Hewitt on the Wabash College website. From the story:
Three judges of the Indiana Court of Appeals made their annual visit Thursday to Wabash College to hear an oral argument in a real case and answer student questions.

A post question-answer period was dominated largely by the emergence of social media and its admission in courts. The justices took turns making the point that it is a new field. Robb, Indiana's first female chief judge in the court's 100 year history, explained that a contributing factor is a person's expectations of privacy.

She said a student with a cell phone, Facebook page, and Twitter account might have a different expectation of privacy than someone any of the judges' ages - who may or might not have similar social media tools.

The three judges also took the time to talk about court procedures and their daily work week. Of course, they would not comment on the oral argument which preceded the questions.

They heard a brief oral argument concerning evidence in a murder case. The case was the object of a television story taped by a private production company for the Discovery Channel. The defense requested and received some footage during the court trial but not all. That was the issue being appealed.

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to Indiana Courts

Ind. Decisions - More on: Lawyer suspended 30 days for a sexual relationship with the client

Updating yesterday's ILB entry, a reader sends along an article from the ABA Journal indicating that sex with clients is okay in Texas. It begins:

Members of the State Bar of Texas have rejected a proposed change in the ethics rules that would have barred sex with clients.
Check here [p. 33] for the rejected Texas rule proposal and the accompanying commentary.

Posted by Marcia Oddi on Friday, February 25, 2011
Posted to Ind. Sup.Ct. Decisions

Thursday, February 24, 2011

Courts - Iowa governor names three new justices to fill slots of three who failed retention election

Here is a story from the Feb. 23rd DesMoines Register. Here is a more detailed story from today.

Today the National Center for State Courts has put out a "backgrounder" headed "Gubernatorial appointments render Iowa one of only three states with all-male high court."

It includes a valuable totally current chart introduced as: "The following chart reflects the diversity of the nation's state courts of last resort. States are listed in order of the highest percentage of women on the bench to lowest as of Feb. 22, 2011."

Indiana is sadly one of the three at the bottom.

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Courts in general

Ind. Decisions - Lawyer suspended 30 days for a sexual relationship with the client

See In the Matter of: Stephen A. Pugliese, filed Feb. 21, 2011, and posted online this afternoon.

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Quote of the Day: Caveat Tweeter"

Following on earlier ILB entries, David Lat of Above the Law, has this brief entry, with links including an ABA Journal entry.

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Indiana Government

Ind. Decisions - Supreme Court accepts certifed question on election issue

In a 2-page order filed Feb. 21, 2011 and posted online today, captioned David R. Snyder v. J. Bradley King, et al, CJ Shepard writes that the Court has accepted a question of Indiana state law certified to it by the USDC, SD Ind. The Q:

“Does the term 'infamous crime' as used in Article II, Section 8, of the Indiana Constitution include conviction of and imprisonment for a misdemeanor battery, so as to permit removal of the convicted person's voter registration from the official list of registered voters pursuant to Indiana Code §§ 3-7-13-4 and 3-7-46-1 and -2?”
Background: This Aug. 16, 2010 ILB entry began:
Here is a great NY Times graphic from March 27, 2004, showing the numbers of states that prohibit felons from voting: while in prison; while on parole; while on probation; after sentence is completed, for certain types of felons; after sentence is completed, for all felons. Indiana falls only in the "while in prison" group. I was surprised to learn today that Indiana's prohibition applies to all incarcerated persons, whether imprisoned for a felony, or a misdemeanor.
The entry goes on to provide links to the Snyder complaint and notice of disfranchisement. A subsequent ILB entry, from Aug. 19, 2010, provides a good deal of additional information on this issue.

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Jason D. Miller v. State of Indiana, a 3-page, per curiam opinion, the Court grants transfer "to address the application of Indiana Code section 35-50-2-2(i) to the sentence for the class A felony conviction." The State asserts that section 2(i) requires a trial court to impose a minimum sentence of thirty years. But the Court here agrees with the COA opinion in Hampton v. State (COA 2010), where:

the Court of Appeals concluded that section 2(i) “dictates only the discretion trial courts have in designating which portions of a defendant's sentence may be suspended and does not expressly set sentencing minimums,” 921 N.E.2d at 31, and that trial courts have discretion “whether to sentence defendants to the advisory sentence, and require those so sentenced to serve thirty years of executed time, or to sentence defendants to a sentence below the advisory level under certain circumstances.” We conclude Hampton correctly decided the issue. * * *

Accordingly, we grant transfer and remand the case to the trial court for resentencing consistent with this opinion. The remainder of the Court of Appeals memorandum decision (reversing the trial court’s determination of Miller’s credit time classification, finding no violation of double jeopardy principles, and finding sufficient evidence supported the convictions) is summarily affirmed.

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 9 NFP)

For publication opinions today (6):

In Gayle Fischer v. Michael and Noel Heymann, a 15-page, 2-1 opinion, Chief Judge Robb writes:

Michael and Noel Heymann (collectively the “Heymanns”) backed out of an agreement to purchase a condominium from Gayle Fischer, and Fischer sued. Following a bench trial, Fischer appeals the trial court’s judgment in favor of the Heymanns, ordering that Fischer reimburse their earnest money deposit and pay their litigation costs and attorney’s fees. On appeal Fischer raises two issues, which we restate as: 1) whether the trial court clearly erred in concluding the property’s electrical concerns constitute “major defects” as defined in the purchase agreement, and 2) whether the trial court clearly erred in concluding Fischer failed to timely respond to the Heymanns’ repair request. Concluding the trial court clearly erred in concluding major defects existed, we need not review the trial court’s decision as to Fischer’s response to the Heymanns’ request, and accordingly, we reverse and remand. * * *

Upon remand, the trial court shall conclude the Heymanns’ attempted termination of the purchase agreement with Fischer was ineffective and determine the extent of damages the Heymanns owe Fischer.

In addition, the purchase agreement provided for the prevailing party to recover attorney’s fees and court costs. The purpose of an attorney’s fees and costs provision is to make the prevailing party whole, and it will be upheld so long as it does not violate public policy. Walton v. Claybridge Homeowners Ass’n, Inc., 825 N.E.2d 818, 825 (Ind. Ct. App. 2005). Therefore, the trial court shall also determine reasonable attorney’s fees to be awarded to Fischer, including appellate attorney’s fees.

Finally, the trial court shall proceed with its determination of the Heymanns’ third-party indemnity claim against their agent. * * *

RILEY, J., concurs.
BROWN, J., dissents with opinion. [that begins, at p. 14] I respectfully dissent from the majority’s conclusion that the Heymanns did not have an objectively reasonable belief that the property contained a major defect. The Heymanns received a detailed inspection report, fifteen pages of which are included in the record, upon which they reasonably relied, and which listed the electrical issues as “Major Concerns” in the Electrical section of the report and as “Concerns” in the Summary section.

In Stephanie L. Cotton v. Charles C. Cotton , a 9-page opinion, Judge Najam writes:
Stephanie Cotton (“Wife”) appeals the dissolution court’s denial of her motion to set aside the decree of dissolution that the court had entered dissolving Wife’s marriage to Charles Cotton (“Husband”). Wife presents a single dispositive issue for our review, namely, whether the dissolution decree is void for insufficiency of process. We conclude that the summons served on Wife was insufficient as a matter of law for the court to exercise personal jurisdiction over Wife and, therefore, that the decree is void. We reverse and remand for further proceedings.
In Bruce Fox v. Dennis Rice , a 4-page opinion, Chief Judge Robb writes:
Bruce Robert Fox petitions for rehearing of our November 4, 2010 opinion. In that opinion, we affirmed the trial court’s grant of summary judgment in favor of West Central Community Corrections (“WCCC”) on Fox’s claims of false arrest, false imprisonment, violation of rights under the Indiana Constitution and, pursuant to 42 U.S.C. section 1983, under the Fourth Amendment to the United States Constitution. Fox v. Rice, 936 N.E.2d 316 (Ind. Ct. App. 2010). We grant Fox’s petition for rehearing to clarify our reasoning, but reaffirm our opinion in all respects.
In Frank A. Workman, et al. v. Ann O'Bryan , an 11-page opinion, Chief Judge Robb writes:
On interlocutory appeal, Dr. Frank Workman appeals the trial court's denial of his motion for summary judgment in this medical malpractice case brought by Ann O'Bryan. The sole issue for our review is whether Dr. Workman is entitled to summary judgment on the two-year occurrence-based statute of limitations. Concluding that Dr. Workman is not entitled to judgment as a matter of law, we affirm. * * *

The trial court correctly concluded that Dr. Workman is not entitled to summary judgment on the issue of the statute of limitations. The trial court's order denying Dr. Workman's motion for summary judgment is affirmed.

In In the Matter of the Adoption of M.B.; J.B. v. J.B. , a 9-page opinion, Judge Najam concludes:
In sum, Stepfather misconstrues the trial court's order to provide that Father had no legal duty to provide support for the child. Indeed, a parent has a common law duty to provide child support even absent a court order. Boone, 924 N.E.2d at 652. And such was the case here. In any event, Father provided support by providing childcare during his parenting time one workday per week, thus saving Mother one day's worth of daycare expenses each week. Father cared for the child in that fashion through July 2, 2009, which was within one year preceding the filing of the Petition for Adoption. As a result, Stepfather has not shown that Father failed to provide support within the year that preceded the filing of the Petition, as required by Indiana Code Section 31-19-9-8(a)(2). Therefore, Stepfather has not met his burden of showing that Father's consent is not required for the adoption, and the trial court did not err when it denied and dismissed his petition to adopt the child without Father's consent.
French C. Mason v. State of Indiana - "Appellant-Defendant, French C. Mason (Mason), appeals his conviction for resisting law enforcement, a Class D felony, Ind. Code § 35-44-3-3; and unlawful use of body armor, a Class D felony, I.C. § 35-47-5-13. We affirm."

NFP civil opinions today (5):

R.M. v. Review Board (NFP)

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

Bernard Pettis v. R.R. Donnelley & Sons (NFP)

Term. of Parent-Child Rel. of B.G.; H.G. v. IDCS (NFP)

Curtis Westbrook v. Nye's Wrecker Service (NFP)

NFP criminal opinions today (4):

Phillip Collier v. State of Indiana (NFP)

Timothy Huffman v. State of Indiana (NFP)

Jesus D. Russell v. State of Indiana (NFP)

Richard Oldfield, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't - More on: House (sans Dems) has convened at 10 am

Updating this earlier ILB entry, WISH TV is now reporting:

Bosma announced the House Rules Committee would extend the legislative deadline for bills on their second and third reading until next Friday, meaning legislation previously considered by the body will not die as previously thought.

This does not mean, however, that the controversial right to work legislation would surface. It has yet to have a first reading, meaning it is not eligible for a second.

The vote to extend the deadline will be the chamber’s first order of business once a quorum is present.

[More] House has now adjourned until 1:30 pm Monday.

[More at 2:50 pm] Mary Beth Schneider of the IndyStar has now tweeted:

Dem leader Bauer says Ds not coming back this week; says Ds will not take their $155 per day expense pay while on walk-out.

Tea party to hold "Dems get back to work" rally Friday at noon on east side of Statehouse. If labor protesters also here, might not be good.

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Indiana Government

Ind. Decisions - 7th Circuit's United States v. Skoien featured

Thanks to Sentencing Law & Policy for pointing to a new Harvard Law Review article:

En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to Be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc)
Here are earlier ILB entries on Skoien.

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

Courts - "If You’re Not Using Facebook, You’re A Bad Lawyer"

So writes Kashmir Hill in the blog, Above the Law. More:

If you’re not booting up your laptop or iPad during voir dire, you’re not a very good lawyer. That’s my takeaway from recent WSJ and Reuters articles on jury selection in the social media age.

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Courts in general

Ind. Gov't - House (sans Dems) has convened at 10 am [Updated]

Mary Beth Schneider of the Indianapolis Star has just tweeted:

This was to have been the day that the next state budget was up for amendments. So expect a lot of talk about that, tho no votes of course.
ILB: Take a look at the index page for HB 1001, the budget bill. It looks like 146 proposed amendments have been filed so far.

10:18 am: MBS just tweeted:

Bosma said he spoke twice to D leader Bauer this morning; no intention of Ds providing quorum today or tomorrow.

Bosma says deadline to pass bills will be moved from this week to next Friday. That means Ds may have to stay out longer to kill bills.

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Indiana Government

Not exactly law - "Murkiness of new media"

Local media is changing. Both print and TV are now 24-7. And many reporters now post Twitter items throughout the day. The rapid changes are reflected in this Feb. 22nd column by Meegan Holland of The Grand Rapids Press, headed "Twitter debate about journalist's story points out murkiness of new media." Check it out.

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to General News

Ind. Gov't. - FWJG Sentencing Series continues

Updating this entry from Tuesday, the Fort Wayne Journal Gazette sentencing series continues. However, I may have lost my way. It looks like: Wednesday: Money the key issue and Thursday: Melissa Long describes wearing an ankle bracelet - but where are they online ...

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Indiana Government

Courts - SCOTUS "allows state suits in seat belt cases"

Marcia Coyle of The National Law Journal reports, in a long story dated Feb. 23rd:

The Supreme Court on Wednesday opened the door to state personal injury suits against automakers in a decision involving vehicle lap belts.

The justices, in a unanimous decision by Justice Stephen Breyer, held that a federal motor vehicle safety regulation did not preempt state tort suits claiming that manufacturers should have installed lap-and-shoulder belts instead of lap belts on rear inner seats. * * *

The decision [in Williamson v. Mazda Motor] comes just one day after the high court held in Bruesewitz v. Wyeth that a federal child vaccine act preempted state lawsuits alleging that a vaccine was designed defectively. The justices in March will take up another preemption case, one involving generic drug labeling, in Pliva v. Mensing.

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Courts in general

Ind. Gov't. - "Both parties have bolted at times"

Niki Kelly of the Fort Wayne Journal Gazette has an interesting story today that begins:

INDIANAPOLIS – This week’s House Democratic exodus isn’t the first case of political flight in Indiana’s history and certainly isn’t the most colorful.

Most of the previous boycotts relate to redistricting – but not all of them – and only a few have involved heading across the state border.

Hmm, "most of the previous boycotts relate to redistricting;" this year's General Assembly hasn't even started yet on that issue!

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Indiana Government

Ind. Gov't. - "Daniels vows to make sure lawmakers get work done"

Updating yesterday's ILB entry, Mary Beth Schneider and Scott Elliott have a long report in today's Indianapolis Star. Here is an interesting tidbit, from far into the story, that indicates how unlikely a quick resolution has now become:

"I can tell you I don't know what will happen," Daniels said. "I can tell you what won't happen: We will not be bullied or blackmailed out of pursuing the agenda we laid in front of the people of Indiana. That agenda is going to get voted on. If it takes special sessions from now to New Year's, we will hold them. We will send the bill to (former) Speaker Bauer and to the Democratic Party of Indiana."

How far apart are they? Miles.

Bauer called House Bill 1003, the voucher program for private school tuition, and Senate Bill 575, the bill limiting teacher collective bargaining to only wages and wage-related benefits, "deal breakers."

Daniels called those bills "non-negotiable."

If Democrats stay out today, as seemed likely late Wednesday, the voucher bill, along with the proposed state budget, are two of 25 bills that will die because they won't have cleared a necessary procedural step. If Democrats stay out through Friday, 25 other bills and resolutions will die.

Maybe.

Bosma said if Democrats return "with a smirk" Monday, thinking they've succeeded, Republicans may simply enact a rules change, extending the deadline to pass those bills to March 4.

And that rules change, he said, can be done with a simple majority vote. Only 51 representatives need to be there, not the 67-member quorum that Democrats currently are denying the GOP.

Even without that, derailed legislation can be revived by being amended into other bills later in the session.

Meanwhile, Eric Bradner of the Evansville Courier & Press, reporting from Urbana, Illinois, writes today:
Though they have not said when they will come back, Bauer sent a strong signal that his caucus could return to the Statehouse on Monday.

That is when bills that have passed the House and the Senate will switch chambers, and those that have not yet passed will have died – “a fresh start,” said House Minority Leader B. Patrick Bauer, D-South Bend.

“Monday would be a good day,” he said. “But I’d rather them call me up and say ‘Yeah, you know, we understand that this is too radical.’”

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Indiana Government

Ind. Gov't. - "Was there undue influence between Duke execs and IURC?"

John Russell continues his Duke / IURC series today with a lengthy front-page Indianapolis Star story headed "Private talks between Duke execs and IURC chief raise concerns that utility swayed regulator on costs."

A sample:

Despite state law that sharply restricts private communication between regulators and company officials on pending cases, Rogers, Turner and another Duke executive met last February for breakfast with Hardy at the Capital Grille, a swanky Downtown restaurant where the menu features eggs Benedict with lobster for $21 and filet mignon hash for $15.

During the meeting, the Duke executives told Hardy that the power plant was facing a $530 million cost overrun -- the second major overrun in less than two years. All told, that would push the price tag up nearly $1 billion more than the IURC originally approved in 2007.

It was an enormously significant bit of news for the utility. Opponents of the project would argue that the cost overruns were Duke's fault and that the company should absorb the loss instead of being allowed to pass it along to customers in the form of a rate hike. If Duke were required to cover the cost, its profits and stock price would almost certainly take a hit.

Part of Turner's job was to help persuade IURC officials to pass those costs along to customers -- or to the contractor on the project. Incentives were built into his bonus, and e-mails from him indicated he took the task very seriously.

It was also critical news for Duke's customers. The plant would require a double-digit percentage hike in electricity rates by 2013 for hundreds of thousands of Indiana customers, from households and schools to shopping centers and steel mills.

With such high stakes, experts in utility regulation say, it is imperative that utilities release such news to all stakeholders at the same time during open public hearings.

Posted by Marcia Oddi on Thursday, February 24, 2011
Posted to Indiana Government

Wednesday, February 23, 2011

Ind. Gov't. - "If it takes special sessions from now to New Year’s, we will hold them and we will send the bill to Leader Bauer and to the Democratic Party of Indiana"

The consensus probably is that Dem. leader Bauer overreached by moving beyond the right-to-work bill to a long laundry list, including the Governor's entire education package.

Here is what Governor Daniels had to say this afternoon, markedly different than his statement yesterday:

INDIANAPOLIS (February 23, 2011) – Governor Mitch Daniels today said the actions by House Democrats to abandon the state during a key time in the 2011 legislative session show “complete contempt for the democratic process.”

Here are the governor’s opening comments during a media briefing today. Audio from the briefing and question-and-answer session follows.

“The House Democrats have shown a complete contempt for the democratic process. The way that works—as we all learned in grade school—is that if you seek public office, you come, do your duty, you argue, you debate, you amend if you can, you vote ‘no’ if you feel you should. If you are not successful, you go home and take your case to the voters. You don’t walk off the job, take your public paycheck with you, and attempt to bring the whole process to a screeching halt. You know, if they persist, the Democratic Party of Indiana will need a rebranding effort because this is as anti-democratic as behavior can be.

“All that said, I think they deserve another chance. Let the heat of the moment cool, I hope. Maybe if their leadership doesn’t have a conscience about the unconscionable things they’ve done, maybe individual members do. But I do hope that having made their point, scored one victory on the big issue, they will decide to come back to work. Let’s do the people’s business, together.

“I can tell you that I don’t know what will happen; I don’t know how we’ll proceed. I can tell you what won’t happen. We will not be bullied or blackmailed out of pursuing the agenda we laid in front of the people of Indiana. That agenda is going to get voted on.

“If it takes special sessions from now to New Year’s, we will hold them and we will send the bill to Leader Bauer and to the Democratic Party of Indiana. I see no reason for that to be necessary. They can come back, and I hope they will tomorrow. We can just get on with business, and that is what I would appeal to them to do. I hope as a whole group, if not then, perhaps individuals in the caucus who have gone along -- because that is what good caucus members do -- may decide their conscience tells them they should do their duty instead.”

Audio of the press conference is available here.

Video will be available later this evening on the governor’s YouTube channel.

Posted by Marcia Oddi on Wednesday, February 23, 2011
Posted to Indiana Government

Ind. Gov't. - Still more on: Indiana Deputy AG reportedly urges use of live ammunition against Wisconsin protesters [Updated]

Mary Beth Schnieder of the Indy Star has just tweeted that the AG has fired Jeff Cox: "Indiana AG's office fires deputy AG Jeff Cox for posting inappropriate online comments on his private account about Wisconsin protesters."

Expect a press release shortly...

Here it is:

Statement from Attorney General’s Office on employee’s online postings

INDIANAPOLIS – Today the Indiana Attorney General’s Office announced that Deputy Attorney General Jeffrey Cox is no longer employed by this agency.

The Indiana Attorney General’s Office conducted a thorough and expeditious review after “Mother Jones” magazine today published an article attributing private Twitter postings and private blog postings to Cox.

Civility and courtesy toward all members of the public are very important to the Indiana Attorney General’s Office. We respect individuals’ First Amendment right to express their personal views on private online forums, but as public servants we are held by the public to a higher standard, and we should strive for civility.

ILB Thoughts: IMHO, perhaps the AG might have gone further than simply citing "civility and courtesy." Mr. Cox is, after all, a member of the Indiana bar who, as a Deputy AG, represented the State of Indiana ...

For background, here is a 6 News video filmed before AG Zoeller acted, and here is a link to an earlier ILB entry.

[More at 6:45 pm] 6 News now has an expanded story and the accompanying video is worth watching.

Posted by Marcia Oddi on Wednesday, February 23, 2011
Posted to Indiana Government

Courts - "Obama DOJ Announces It Will Not Defend DOMA"

The Wonk Room entry begins:

Moments ago, in a sharp reversal of policy, the Obama administration announced that it believes that Section 3 of the 1996 Defense of Marriage Act (DOMA) — which prohibits the federal government from recognizing same-sex marriages — is unconstitutional and will ask the Justice Department to stop defending the law.
Here is the just-issued DOJ statement on litigation involving the DOMA.

[More] Here is a context piece by Charlie Savage of the NYT.

And for background, Mr. Savage is recommending his Jan. 28, 2011 article, "Suits on Same-Sex Marriage May Force Administration to Take a Stand."

Posted by Marcia Oddi on Wednesday, February 23, 2011
Posted to Courts in general

Ind. Gov't. - List of "still live" House bills

Yesterday 20-some House bills died because the House never got the quorum necessary to convene and so the committee reports couldn't be put in play. One of them was the now notorious right-to-work bill.

According to this page of the General Assembly website, Friday, February 25, 2011 is the "Last day for 3rd reading of House bills in House (House Rule 147.1 )." I have also heard that Thursday is the last day ...

Here is today's House calendar. The "House bills on 2nd reading" must be passed on to 3rd reading or they will die tonight at midnight if Thursday is the last day ... And all bills still on 3rd reading will die at midnight Thursday if Thursday is the last day ...

Whatever. You can scroll down the list and see what is probably going down in the likely event the Dems don't make it back.

Posted by Marcia Oddi on Wednesday, February 23, 2011
Posted to Indiana Government

Ind. Gov't. - More on: Indiana Deputy AG reportedly urges use of live ammunition against Wisconsin protesters

Local TV is now reporting the story the ILB posted this morning.

6 News has this noon story that includes info the ILB choose not to post earlier, as irrelevant, but perhaps it is relevant to a 6News report - Jeff Cox is the son of 6News reporter Norman Cox.

"Tweet lands Deputy AG in hot water," is the WISH TV headline.

Posted by Marcia Oddi on Wednesday, February 23, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In Debra K. Sands v. Helen HCI, LLC, a 9-page opinion, Judge Bailey writes:

This Court granted Debra K. Sands (“Sands”) permission to bring an interlocutory appeal of an order of the Boone County Superior Court denying her motion to enforce a settlement agreement between herself, Helen HCI, LLC (“Helen HCI”), Haverstick Consulting, Inc. (“Haverstick”) and Kratos Defense & Security Solutions, Inc. (“Kratos”), providing for dismissal with prejudice of Helen HCI's complaint against Sands in the Boone County Superior Court and dismissal with prejudice of Sands' complaint against Helen HCI, LLC, Haverstick, and Kratos in the Circuit Court of Eau Claire County Wisconsin. We reverse. * * *

Here, the parties entered into a binding contract which required the subsequent execution of a document memorializing their agreement and there is no uncertainty as to any substantial term of the settlement contract. “A court will not find that a contract is so uncertain as to preclude specific enforcement where a reasonable and logical interpretation will render the contract valid.” Conwell v. Gray Loon Outdoor Marketing Group, Inc., 906 N.E.2d 805, 813 (Ind. 2009).

The trial court erred in summarily concluding that no enforceable settlement agreement existed.

In Sutton Funding, LLC v. Jansuz Jaworski, First MIdwest, et al. , a 10-page opinion, Judge Baker writes:
In the midst of a refinance of a mortgage, the refinancing mortgage broker requested a payoff statement from the mortgagee bank. The bank provided a payoff statement, and the broker and title agent relied on the amount contained in that payoff statement in good faith. Although it was later revealed that the payoff statement mistakenly understated the amount of the mortgage by a significant amount, the mortgage broker and title agent were entitled to a release of the mortgage pursuant to the Indiana Code. After a default on the mortgage, litigation ensued to determine whether the originating bank or the refinancing entity had priority with respect to the mortgage. The trial court found in favor of the originating bank, and we reverse.

Appellant-Plaintiff Sutton Funding, LLC (Sutton Funding), appeals the trial court’s order granting summary judgment in favor of appellees-defendants Janusz Jaworski and First Midwest Bank (First Midwest). Sutton Funding raises a number of issues, one of which is dispositive: whether the application of Indiana Code section 32-29-6-13 (Section 13) requires that Sutton Funding be provided with a release of the mortgage at issue and that summary judgment be granted in Sutton Funding’s favor. Finding that Section 13 requires such a result, we reverse and remand with instructions to enter an order directing First Midwest to release the mortgage to Sutton Funding and entering summary judgment in Sutton Funding’s favor.

In Steven E. Coates v. Heat Wagons, Inc., et al. , a 28-page, 2-1 opinion, Judge Bailey writes:
Coates presents numerous issues, which we reframe and restate as whether the trial court abused its discretion in granting a preliminary injunction against him because
1. There is no risk of irreparable harm to PHP from Coates’s continued operation of his business that would entitle PHP to a preliminary injunction, and prospective legal remedies will suffice to protect MPI’s interests;
2. MPI did not establish its likelihood of success on the merits of its claim against him because the covenant not to compete is unenforceable and MPI committed the first material breach of the underlying employment agreement; and
3. The terms of the injunction are overly broad relative to the covenant it seeks to enforce. * * *

The trial court did not err in determining that MPI faced a risk of irreparable harm and lacked adequate remedy at law as a result of any breach by Coates of the covenant not to compete. It also did not err in determining that MPI has a reasonable likelihood of success on the merits of its case. Finally, the restrictions imposed by the preliminary injunction upon Coates’s use of the Web address www.heatersandparts.com and the red “H&P” logo are overly broad.

Affirmed in part, reversed in part.
RILEY, J., concurs.
KIRSCH, J., dissents with separate opinion. [that begins, at p. 26] I respectfully dissent. Covenants not to compete in employment contracts are in restraint of trade and have long been disfavored in the law. See Donahue v. Permacel Tape Corp., 127 N.E.2d 235 (Ind. 1955). To be enforceable, the scope of the restriction on competition in a covenant not to compete in an employment contract must be reasonable in terms of duration, activity and geographic area. Sharvelle v. Magnante, 836 N.E.2d 432, 436 (Ind. Ct. App. 2005). I believe the covenant now before us fails to meet this standard in terms of both activity and geographic area.

NFP civil opinions today (1):

William Smith v. Arbor Woods Apartments (NFP)

NFP criminal opinions today (11):

State of Indiana v. Jason Patton (NFP)

Ronald A. Steenbeke v. State of Indiana (NFP)

Roy Kresel v. State of Indiana (NFP)

Dorris Merriweather, III v. State of Indiana (NFP)

Michael S. Polites v. State of Indiana (NFP)

Oscar Delatorre v. State of Indiana (NFP)

Robert Beeler v. State of Indiana (NFP)

Daniel W. Myers v. State of Indiana (NFP)

M.C. v. State of Indiana (NFP)

Billy James Huff, Jr. v. State of Indiana (NFP)

James C. Gaskill v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 23, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Ball in Bosma's court after Governor speaks

Updating yesterday' entry, WTHR last evening had this story with a list of the House Democrats' demands, including its list of the "bills of concern" to House Democrats:

Education

HB 1002 Charter School Expansion. Diverts state funding to experimental schools at a time when the state has cut funding to local schools by $600 million over the past two years.

HB 1003 School Vouchers. Allows a family of four making over $80,000 a year to receive taxpayer dollars to send their children to a private school.

HB 1479 Private Takeover of Public Schools. Allows the state of Indiana to take over poorly performing schools and for these schools to be managed by for-profit companies. It removes local decision making in schools.

HB 1584 Public School Waiver of state laws. Allows school boards to seek waivers of almost any school law or regulation.

Labor

HB 1468 Right to work. Places the government between employers and their workers. It weakens the ability of working people to bargain for fair wages and safe work environments.

HB 1216 Public Works Projects and Common Construction Wage. Weakens the ability of government to ensure that tax dollars are paid to the best and most qualified workers on public works projects, and that these tax dollars are spent at home.

HB 1203 Employee representations. Ends employee rights to join a union by secret ballot and opens employees up to retaliation and firing by an employer who finds out they are trying to use their right to bargain. This is preempted by federal law. Will require the state to use taxpayer dollars to defend this legislation.

HB 1450 Unemployment Insurance. Shifts hundreds of millions of dollars in taxes from big businesses to small business and will cut benefits for unemployed workers by 25%.

HB 1585 Right to work for Public Employees. Removes collective bargaining rights at the local level.

HB 1538 Minimum wages. Precludes a community from determining what wages are appropriate for its area.

HB 1001 Budget Bill. Allowed no public testimony on a school funding formula that cuts state support for K-12 across Indiana.

And Governor Daniels is not longer feeling so conciliatory, according to tweets this morning by Matt Tully of the Indianapolis Star:
Gov. Daniels just called. Re: Dem calls to kill other bills, particularly on education: "We're not doing that. Those are my priorities."

Daniels said he was "careless with my words yesterday." When he praised actions by critics he was referring to protesters not House Dems.

See this WISH TV report, headed "Rep. Ed DeLaney explains Dems' absence."

Jon Seidel of the Gary Post-Tribune reported this story from Urbana, Illinois. It begins:

URBANA, Ill. — Indiana House Democrats signed amendment proposals delivered by their staff to an Illinois hotel late Tuesday night and insisted their exodus from the Hoosier state was not prompted exclusively by Republicans’ labor bills.

Democratic Rep. Shelli VanDenburgh of Crown Point, for example, said she would also like to stop House Bill 1003, the GOP’s school voucher bill. It and many other pieces of legislation could die this week as legislative deadlines pass.

“It’s not that we’re not working,” VanDenburgh said. “We’re not in the Statehouse working. This is the only way that we can serve the people that we represent and kill the poison bills.”

Faces normally seen on the Democrats’ side of the aisle seemed to pop up around every corner in the Urbana, Ill., hotel. Northwest Indiana lawmakers said more than 100 budget amendments they helped sign will be delivered to the Statehouse Wednesday morning by their staff.

Eric Bradner of the Evansville Courier & Press has a long story headed "Indiana House Democrats flee Statehouse."

Stephanie Gattman's report for the Elkhart Truth is headed "Indiana Dems go to Illinois to strategize on 'right to work' bill."

Posted by Marcia Oddi on Wednesday, February 23, 2011
Posted to Indiana Government

Ind. Law - More on: Several notable bills on third reading in Senate

Updating yesterday's list, here is the current status:

The Senate is done with its work for the time being.

Posted by Marcia Oddi on Wednesday, February 23, 2011
Posted to Indiana Law

Ind. Gov't. - Indiana Deputy AG reportedly urges use of live ammunition against Wisconsin protesters

See the story here.

Be sure to read the response by the spokesman for the Indiana attorney general's office, Bryan Corbin.

Posted by Marcia Oddi on Wednesday, February 23, 2011
Posted to Indiana Government

Ind. Courts - How should trial courts best deal with self-represented litigants?

Delaware County Judge Marianne Vorhees has written this article, "Best Practices in Dealing with Self-Represented Litigants," for an Indiana Courts publication, CourtTimes. The article looks at issues such as:

What should a judge do if only one side is represented by counsel and the self-represented party will suffer a real injustice due to lack of legal representation? For example, a self-represented mother may be pursuing a petition to modify custody because the children are in danger in their father’s home, but doesn’t know how to properly present the necessary evidence.

Posted by Marcia Oddi on Wednesday, February 23, 2011
Posted to Indiana Courts

Not Law, But Interesting: "In Indianapolis, the World Comes to Eat"

I had to read this morning's NY Times to find out about how cosmopolitan Indianapolis has become. A long story today beginning on the front-page of the Dining Section. Samples:

HONEY CREEK PLAZA, in a neighborhood with a suburban character inside this city’s northwest border, is a five-continent food court posing as a shopping center. Park in the blacktop lot that separates the strip mall from West 38th Street, and you can walk to restaurants serving food from South America, North America, Europe, Africa and Asia. * * *

On the city’s far southern fringe, within sight of an Olive Garden in Greenwood, Ind., a Burmese restaurant called Kimu serves stick-shaped breakfast crullers and pork with pickled mango. Customers include the parents of children at nearby Winchester Village Elementary, where, because of refugee resettlement, more than 30 percent of the students are now of Burmese descent.

Posted by Marcia Oddi on Wednesday, February 23, 2011
Posted to General News

Tuesday, February 22, 2011

Ind. Gov't. - Ball in Bosma's court after Governor speaks [Updated]

The Governor gave a brief statement to the press at 3:15 (listen to the mp3 here) indicating that "Republicans should to drop the right-to-work bill" and that then he expected the Democrats would return. See Mary Beth Schneider's IndyStar story here.

[More] Once they get an assurance that right-to-work is dead, if one is forthcoming, only enough Dems have to come to the Chamber tonight and vote "present" to create the quorum, which I think is 2/3 of the membership. (This could otherwise be problematic, as apparently some Dems actually are out-of-state by now.)

Once the chair sees a quorum, the outstanding committee reports can "go across the front desk" and will become eligible for 2nd reading tomorrow. Otherwise, they will die at midnight tonight.

[Updated at 7:48 pm] Maybe not so simple as above. Eric Bradner of the Evansville C&P has just tweeted: "The 37 missing Indiana House Democrats are together in Illinois right now. They say this is about more than right to work."

Posted by Marcia Oddi on Tuesday, February 22, 2011
Posted to Indiana Government

Courts - DC Circuit on citing unpublished orders

Here is an interesting entry in How Appealing referencing a decision on the value of citing unpublished orders in the DC Circuit. The discussion, beginning at p. 9 of the opinion, begins:

Amicus counsel for Grant relies on nine unpublished orders we issued between 2005 and 2008 dealing not with § 1915(b) but with an analogous provision in § 1915(g).

Posted by Marcia Oddi on Tuesday, February 22, 2011
Posted to Courts in general

Ind. Law - Governor signs voting centers bill

The new law is SEA 32. The new IC 3-11-18.1 (Chapter 18.1. Vote Centers) is effective retroactive to Dec. 31, 2010.

Posted by Marcia Oddi on Tuesday, February 22, 2011
Posted to Indiana Law

Ind. Gov't. - "Indiana Democrats' move could kill 22 bills in House"

Okay, this story from Stephanie Gattman of the Elkhart Truth, posted at noon, explains something I didn't realize. My thought had been that the Dems would have to stay out until the last day for 3rd readings ended, which in the House is Thursday, in order to kill the right-to-work bill. But not so. She writes:

Democrats picked the "nuclear option" to kill right-to-work legislation they find detrimental to labor unions, according to State Rep. Bill Friend, R-Macy.

Friend, House Republican floor leader and a member of Elkhart County's legislative delegation, said this afternoon that both parties have used the tactic of withholding a quorum when they were in the minority, but in this case, Democrats could kill 22 committee reports if they don't return to session by the close of business today.

Today is the deadline for committee reports to be handed down, or else those bills die on the calendar, Friend explained. "It's distressing that they are using this tactic, but it is a tactic that the minority part has and it is one they are putting to use," he said. * * *

The controversial right-to-work bill is one of the 22 bills with committee reports pending. "There are some strategically important issues in these committee reports, not the least of which is the right-to-work bill that was passed out of committee yesterday," Friend said.

The work must be completed by midnight.

The Democrats could return Wednesday and the House could complete all other bills eligible for second and third reading between then and Friday, Friend said.

Friday is the deadline for bills to get out of the House.

He said it is possible that the bills that die could be amended into Senate bills. There is no Senate equivalent to the House right-to-work bill, Friend confirmed.

Posted by Marcia Oddi on Tuesday, February 22, 2011
Posted to Indiana Government

Ind. Gov't. - Still more on: "In a legislative session seemingly overflowing with important and emotional issues ... the sentencing proposal is emerging as one of the most contentious and significant"

Here is the anticipated story by Niki Kelly of the Fort Wayne Journal Gazette on the politics behind sentencing reform. Some quotes:

INDIANAPOLIS – Whether Republican or Democrat, no state lawmaker wants to be accused in a campaign flier as being soft on crime.

This political fear is perhaps the biggest obstacle to a sentencing plan being pushed by Gov. Mitch Daniels to save the state money on prison beds. * * *

The bill [SB 561] is scheduled for a full vote in the Senate today. It then will move to the House for consideration.

The biggest organized opposition to the bill has come from Indiana prosecutors who have fought a reduction of drug sentences. They have been successful in retaining the ability to increase sentences when crimes are committed within 1,000 feet of schools and other facilities.

Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council, said the prime concern for prosecutors is making sure that the most hardened criminals serve more time in prison.

That is why legislators added an amendment to the overhaul legislation that would make the worst felons serve at least 85 percent of their sentence – commonly known as truth in sentencing – instead of the current system where most prisoners serve half of each sentence.

Johnson said that change added balance to the bill so lawmakers can feel they are being tough on some criminals even while reducing others’ sentences.

But Steele said that the truth-in-sentencing amendment, “may blow the fiscal upside of the bill completely out of the water.”

He noted the whole point was to avoid building more prisons – not extend sentences.

Rep. Jeff Espich, R-Uniondale, said he has not accounted for the sentencing bill in his version of the state budget – not in savings or possible increased spending on longtime felons.

“Legislators have gotten nervous and they are trying to modify the bill so it’s a trade-off,” he said.

“You have to be really careful it doesn’t end up costing more. We obviously can’t afford that.”

Posted by Marcia Oddi on Tuesday, February 22, 2011
Posted to Indiana Government

Ind. Gov't. - "House Democrats are leaving the state rather than vote on anti-union legislation"

So reports Mary Beth Schneider in the Indianapolis Star in a breaking story that continues:

A source said Democrats are headed to Illinois, though it was possible some also might go to Kentucky. They need to go to a state with a Democratic governor to avoid being taken into police custody and returned to Indiana.
The long story concludes:
The last time a prolonged walk-out happened in the Indiana legislature was in the mid-1990s, when Republicans were in control and tried to draw new legislative district maps, eliminating a district that likely would have been a Democrat one, in the middle of the decade. Democrats won that standoff, staying away several days until Republicans dropped the plan.
Here is a story from Jon Seidel of the Gary Post Tribune, headed "Dems still missing; Brown says ‘may very well be Wisconsin’ ."

Posted by Marcia Oddi on Tuesday, February 22, 2011
Posted to Indiana Government

Ind. Decisions - Two today from 7th Circuit

In USA v. Roger Slone (ND Ind., Lozano), a 16-page opinion, Judge Flaum writes:

Roger D. Slone was arrested during an operation in which law enforcement worked their way down the drug-supply food chain. An undercover agent with the Drug Enforcement Administration (“DEA”) drove a tractor-trailer filled with marijuana to an Indiana warehouse; law enforcement then took into custody those who received drugs from the shipment. Slone was arrested for conducting countersurveillance or security for a vehicle into which 500 kilograms of the drugs had been offloaded. He was subsequently convicted of conspiracy to distribute marijuana and sentenced to 120 months in prison. On appeal, Slone maintains that police lacked probable cause to arrest him. Even if true, that would not be sufficient to overturn his conviction. Evans v. Poskon, 603 F.3d 362, 364 (7th Cir. 2010). However, if police lacked probable cause to arrest him, then the exclusionary rule should have applied and led the district court to suppress self-incriminating post-arrest statements that Slone made to a federal agent, as well as evidence that was found in Slone’s vehicle. He argues as much and likewise contends that evidence from his vehicle should have been suppressed under the Supreme Court’s decision in Arizona v. Gant, 129 S. Ct. 1710 (2009). Neither argument is persuasive, however, and we affirm the judgment of conviction.

In USA v. James Guyton (ND Ind., Lozano), an 11-page opinion, Judge Hamilton writes:

Appellant James Guyton was sentenced for a crack cocaine offense before the Supreme Court held that the Sentencing Guidelines were advisory in United States v. Booker, 543 U.S. 220 (2005). Guyton’s guideline range was based on the career offender guideline, U.S.S.G. § 4B1.1, but the district court granted a downward departure under section 5K1.1 based on his assistance to the government. The court departed downward to a sentence within the range for crack cocaine offenses that would have applied to Guyton absent the career offender designation.

In limited circumstances, 18 U.S.C. § 3582(c)(2) authorizes a district court to reduce a sentence of imprisonment imposed under a previous version of the United States Sentencing Guidelines so as to give retroactive effect to guideline amendments that the Sentencing Commission has chosen to make retroactive. A reduction is permitted only if “the guideline range applicable to that defendant” has been retroactively lowered. U.S.S.G. § 1B1.10(a). After the Sentencing Commission retroactively reduced the guideline ranges for crack cocaine offenses, Guyton moved for a sentence reduction under section 3582(c)(2). The district court denied his motion, and Guyton has appealed. We affirm.

We held in United States v. Forman, 553 F.3d 585, 589-90 (7th Cir. 2009), that a crack cocaine offender sentenced under the career offender guideline was not eligible for a reduced sentence under section 3582(c)(2). The crack cocaine amendment simply did not lower the defendant’s applicable guideline range. Here we face a variation on the Forman issue: whether a defendant sentenced under the career offender guideline, but with a downward departure for substantial assistance, is eligible for a reduction. We hold that, for purposes of section 3582(c)(2), the relevant sentencing range is the one calculated before the defendant received the benefit of a downward departure under Chapter 5 of the Guidelines. The Sentencing Commission has not retroactively reduced the career offender guideline that determined the guideline range applicable to defendant Guyton. The reasoning of Forman applies, therefore, and the district court was required to deny Guyton’s motion.

Posted by Marcia Oddi on Tuesday, February 22, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Illinois federal Judge's remarks at sentencing in at least two recent sex cases have earned rebukes from the Seventh Circuit"

So tweeted Michelle Olsen of AppellateDaily this morning, referencing this Feb. 21st entry in the PrawfsBlawg that begins:

I don’t know Judge J. Phil Gilbert of the Southern District of Illinois personally, but I’m pretty sure he dislikes sex offenders. A lot. So much so that his remarks at sentencing in at least two recent sex cases have earned rebukes from the Seventh Circuit.

Posted by Marcia Oddi on Tuesday, February 22, 2011
Posted to Ind. (7th Cir.) Decisions

Courts - "Want to Serve on a Jury? Be Careful What You Post"

The WSJ Law Blog today discusses and points to a WSJ story today headlined "Searching for Details Online, Lawyers Facebook the Jury: Attorneys Seek Cues on Potential Jurors in Networking Sites."

Posted by Marcia Oddi on Tuesday, February 22, 2011
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 6 today (and 10 NFP)

For publication opinions today (6):

In Craig Dennis v. Board of Public Safety of Fort Wayne, Indiana , a 13-page opinion, Chief Judge Robb writes:

The Board of Public Safety of Fort Wayne, Indiana (the “Board”) placed Craig Dennis on indefinite unpaid leave from his employment as a police officer. Several months later, following his acquittal of a criminal charge, the Board reinstated Officer Dennis's employment but denied his request for back pay. Officer Dennis then filed a complaint for judicial review, which the trial court dismissed, concluding it lacked subject matter jurisdiction. Officer Dennis appeals the trial court's order of dismissal. He raises two issues, which we restate as: 1) whether the Board's actions in placing Officer Dennis on indefinite unpaid leave and later denying his request for back pay constitute a suspension subject to judicial review under Indiana Code section 36-8-3-4; and 2) whether the Board's decision was final, such that the thirty-day time period to file for judicial review began to run, from the date the Board placed Officer Dennis on indefinite unpaid leave, or instead from the date it denied his request for back pay. We conclude Officer Dennis's indefinite unpaid leave pending the outcome of the criminal charge was a suspension of greater than five days, thus subject to judicial review, and the Board's decision became final when it denied Officer Dennis's request for back pay, such that his complaint for judicial review was timely filed. We therefore reverse the trial court's order of dismissal and remand for further judicial review proceedings.
InAllstate Insurance Company v. Gary R. Love, an 11-page opinion, Judge Riley writes:
Appellant-Defendant, Allstate Insurance Company appeals the trial court's Order refusing to set aside a default judgment entered in favor of Appellee-Plaintiff, Gary R. Love, with respect to Love's Complaint asserting underinsured motorist benefits. We affirm, in part, reverse, in part, and remand for further proceedings. * * *

[W]e agree with Love that Allstate's failure to timely raise the issue of unliquidated damages before the trial court constitutes waiver of the issue on appeal.

Notwithstanding the above, Indiana courts prefer to decide cases on their merits and to give the parties their day in court. Therefore, we will review the issue of unliquidated damages as if Allstate did raise it in a timely manner.

Here, Allstate's main argument is that UIM damages are unliquidated and therefore can still be contested before the trial court despite the default judgment. We agree.

We find that UIM damages are unliquidated because they are not a sum certain and they cannot be reduced to fixed rules and mathematical precision. * * *

[W]e conclude that the trial court's award of $225,000 was interlocutory and therefore Allstate may still appear and be heard as to the amount of damages resulting from the judgment.

State of Indiana v. Andy J. Velasquez, II - "In conclusion, we find no abuse of discretion in the giving of a preliminary instruction pursuant to Evidence Rules 105 and 404(b). We do, however, find that the trial court erred in excluding the testimony of witnesses under Evidence Rules 802 and 704(b)."

James C. Taylor v. State of Indiana - "Appellant James C. Taylor appeals his convictions of burglary, a Class A felony, Indiana Code section 35-43-2-1 (1999); criminal deviate conduct, a Class B felony, Indiana Code section 35-42-4-2 (1998); and attempted rape, a Class B felony, Indiana Code sections 35-42-4-1 (1998) and 35-41-5-1 (1977). Taylor also appeals the jury’s verdict that he is guilty but mentally ill of a second charge of criminal deviate conduct and of sexual battery, a Class D felony, Indiana Code section 35-42-4-8 (1998). Finally, Taylor appeals the jury’s determination that he is a habitual offender, Indiana Code section 35-50-2-8 (2005), and the sentences that the trial court imposed for his convictions. We affirm."

Keith Hoglund v. State of Indiana - "Appellant/Defendant Keith Hoglund appeals from his conviction of and sentence for Class A felony Child Molesting. Hoglund contends that the trial court abused its discretion in admitting testimony regarding whether the victim was falsifying or exaggerating stories of Hoglund’s molestation of her, whether the trial court abused its discretion in sentencing him, and whether his fifty-year sentence is inappropriately harsh. We affirm"

Paul J. Kocielko v. State of Indiana - "This matter comes before us on a petition for rehearing by the State. The State asks that we reconsider our decision with regard to the vacation of Kocielko’s conviction for Sexual Misconduct with a Minor as a Class C felony. We grant rehearing and affirm the decision of the trial court except for the imposition of a double habitual offender enhancement."

NFP civil opinions today (4):

In the Matter of T.R., Alleged to be CHINS; S.S. & R.R. v. IDCS (NFP)

Term. of Parent-Child Rel. of L.S.; A.S. v. IDCS (NFP)

Larry Burdette v. Perlman-Rocque Company (NFP)

Leo Machine & Tool, Inc., et al. v. Gary M. Gerardot (NFP)

NFP criminal opinions today (6):

Jamie Escobedo v. State of Indiana (NFP)

Robert D. Neal, Jr. v. State of Indiana (NFP)

Naugle Gibson v. State of Indiana (NFP)

Gregory Preyer v. State of Indiana (NFP)

Elizabeth Mathias v. State of Indiana (NFP)

Anthony McCoy v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 22, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Supreme Court sets date for Judge Young's 30-day suspension

Updating this ILB entry from Feb. 14th, WISH TV reminds us this morning that this is the day Judge Young begins his 30-day unpaid suspension.

[More] Here is the Supreme Court order naming Jane H. Conley to serve as Judge Pro Tempore in the Marion Superior Court from Feb. 22 to March 24, 2011.

Posted by Marcia Oddi on Tuesday, February 22, 2011
Posted to Ind. Sup.Ct. Decisions | Indiana Courts

Ind. Law - Several notable bills on third reading in Senate

Some notable Senate bills which must pass third reading today or tomorrow to remain viable include:

Posted by Marcia Oddi on Tuesday, February 22, 2011
Posted to Indiana Law

Ind. Courts - "Many suspended drivers still behind the wheel"

A few quotes from a WTHR 13 Eyewitness News story by Steve Jefferson last evening:

Rodney Roscoe is one of Indiana's hundreds of thousands of suspended drivers. Eyewitness News caught up with him leaving traffic court to get into his car. Roscoe told us his license would be reinstated in 2012.

When asked why he was driving after getting out of traffic court, Cornelius Johnson responded, "Well, I got to get home."

Every week people line up for traffic court on East Washington Street. Some days the judge sees more than a hundred people stripped of their driving privileges. Although they are not supposed to be behind the wheel, Eyewitness News found suspended driver after suspended driver starting their engines.

Posted by Marcia Oddi on Tuesday, February 22, 2011
Posted to Indiana Courts

Monday, February 21, 2011

Ind. Courts - Knightstown council wants new judge to be an attorney

John Hodge reported Feb. 19th for the New Castle Courier Times:

KNIGHTSTOWN - The new judge for the Knightstown Town Court must be an attorney, according to an ordinance passed Thursday by the Knightstown Town Council. However, it might not be observed by the caucus that selects the judge.

Judge Hayden Butler resigned as judge earlier this month with 11 months left on his term. Joe Lansinger is now serving as pro tempore judge. He was appointed by the Indiana Supreme Court. A replacement to fill the remainder of Butler's term is scheduled to be selected by a caucus of the Republican Party at 8 a.m. Saturday, Feb. 26.

Members of the town council were insistent that the new judge be an attorney. Not all town judges are in Indiana. However, Council President Clyde South emphasized that anything passed by the council is not binding. * * *

Todd Hiday, Henry County Republican chairman, agreed that the ordinance passed by the council is not binding on the caucus.

"State law does not require such an ordinance," Hiday said Friday in a phone interview. "There is a measure being considered by the state Legislature that would require all town judges in Indiana to be attorneys. Right now they don't have to be."

The judge who is selected will serve the rest of 2011. The office will be up for election in November.

Posted by Marcia Oddi on Monday, February 21, 2011
Posted to Indiana Courts

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

For publication opinions today (2):

In Sherree Demming v. Cheryl Underwood and Kenneth Kinney , a 30-page opinion dealing with common law and statutory agency, constructive fraud and construtive trust, and the doctrine of vicarious liability. Judge Mathias' opinion begins:

Sheree Demming appeals from the Monroe Circuit Court's entry of summary judgment in favor of Cheryl Underwood and Kenneth Kinney on Demming's claims for breach of fiduciary duty and constructive fraud, as well as Demming's request for the imposition of a constructive trust. We reverse and remand for proceedings consistent with this opinion.

The facts most favorable to the non-moving party establish that Demming is a real estate investor in the business of acquiring properties in the Bloomington, Indiana area for remodeling, renovation, leasing, and sale. Demming, who has never held a realtor's license, engaged Underwood's professional services as a realtor to buy and sell properties on multiple occasions between July 2002 and April 2007. During this time, Demming routinely discussed her real estate investment strategy with Underwood, including her plans to acquire multiple properties within a “target zone” near the Indiana University campus.

In Joshua Burke v. State of Indiana , a 13-page opinion, Judge Vaidik writes:
Joshua Burke appeals his conviction for Class B felony burglary. Burke contends that Indiana Code section 35-43-2-1(1)(B)(ii), which enhances burglary from a Class C felony to a Class B felony if the building or structure burgled is a structure used for religious worship, violates the Establishment Clause of the First Amendment to the United States Constitution and Article 1, Section 4 of the Indiana Constitution. We conclude that Section 35-43-2-1(1)(B)(ii) does not violate the Establishment Clause of the First Amendment because it has a secular legislative purpose, its primary effect neither advances nor inhibits religion, and it does not foster an excessive government entanglement with religion. We also conclude that Section 35-43-2-1(1)(B)(ii) does not violate Article 1, Section 4 of the Indiana Constitution because it does not materially burden Section 4's core constitutional value. We therefore affirm the trial court.
NFP civil opinions today (7):

Jimmy Vance v. Caesars Entertainment, Inc. (NFP)

Rick Delon v. Timothy Rallings, et al. (NFP)

Term. of Parent-Child Rel. of T.G.; P.G. v. IDCS (NFP)

Paternity of W.H.; S.S. v. D.H. (NFP)

Adoption of T.L.; D.F., K.F. v. M.J. (NFP)

Duane Walters v. Home Bank, S.B. (NFP)

Term. of Parent-Child Rel. of J.J. and H.J.; H.A. v. IDCS (NFP)

NFP criminal opinions today (8):

Jammy Daniels v. State of Indiana (NFP)

Donald Baker III v. State of Indiana (NFP)

Joe E. Smithson v. State of Indiana (NFP)

Kenneth Bradley v. State of Indiana (NFP)

Juan Stallworth v. State of Indiana (NFP)

Eric Welch v. State of Indiana (NFP)

Scott Malott v. State of Indiana (NFP)

Randall Spears v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 21, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending February 18, 2011

Here is the Clerk's transfer list for the week ending February 18, 2011. It is two pages (and 27 cases) long.

Five transfers were granted for the week ending February 18, one with opinion:

__________

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, February 21, 2011
Posted to Indiana Transfer Lists

Ind. Decisions - "Landlords face contempt ruling on house's lead cleanup"

Mark Wilson reports today in the Evansville Courier & Press:

In a first-of-its-kind ruling, a judge has ordered the landlords of an Evansville house contaminated with lead paint to comply with a cleanup agreement or be held in contempt of court.

The lawsuit, filed in November 2009 in Vanderburgh Circuit Court, alleged that landlords Mark R. Bryan and Tammy A. Bryan had refused to fix lead paint hazards in a house after a tenant's child was found to have elevated blood lead levels.

It was filed by Indiana Attorney General Greg Zoeller's office on behalf of the Vanderburgh County Health Department after the Bryans allegedly ignored multiple warnings to fix the problems, and failed to comply with their own April 2010 agreement with the county.

Vanderburgh Circuit Court Judge Carl Heldt ruled in favor of the state on Jan. 14. He ordered the owners to remediate or demolish the house, and also to pay $13,050 in attorney's fees.

A spokesman for the attorney general's office said Friday that the Bryans have failed to appeal the judgment within the required 30 days.

Bryan Corbin, of the attorney general's office, said the property owners have now lost their right to appeal and must comply by an April 29 deadline set by the judge or face being held in contempt of court. A June 10 court date has been set to check compliance.

It is the first time the state has successfully brought a nuisance suit under Indiana's environmental laws on behalf of local efforts to enforce compliance with lead hazard regulations. Although the attorney general's office has offered such support going back to Zoeller's predecessor, Steve Carter, the Vanderburgh County lawsuit was the first such action ever taken in the state.

"We have set a precedent that a county may sue for nuisance for lead paint contamination and also in doing so to recover costs," Corbin said.

Posted by Marcia Oddi on Monday, February 21, 2011
Posted to Environment | Ind. Trial Ct. Decisions | Indiana Courts

Ind. Gov't. - More on: "In a legislative session seemingly overflowing with important and emotional issues ... the sentencing proposal is emerging as one of the most contentious and significant"

It turns out the Fort Wayne Journal Gazette's lengthy story yesterday is but the first in a week-long series. Today's story, reported by Ron Shawgo, is headlined "Packed prisons burden budgets." It presents a "snapshot of the state's prisons and whom they held on Dec. 20, 2010."

Tomorrow is Niki Kelly's report on the politics behind sentencing reform.

Posted by Marcia Oddi on Monday, February 21, 2011
Posted to Indiana Government

Ind. Courts - "Allen County settles lawsuit with abortion provider"

Updating this list of earlier ILB entries, including this one from Aug. 13, 2010, Dan Stockman of the Fort Wayne Journal Gazette reported Feb. 18th:

The Allen County commissioners agreed Friday to settle a lawsuit brought by a local abortion clinic alleging an ordinance commissioners passed last year violated doctor-patient privacy laws.

The law, known as the Patient Safety Ordinance, requires doctors who practice in Allen County but don’t live there to designate a local backup doctor, so that doctor can treat patients who experience complications.

Though the law covers all itinerant doctors, it was aimed at abortion providers, specifically Dr. George Klopfer, who operates Fort Wayne Women’s Health Clinic.

Klopfer sued, arguing the enforcement provisions – which required patients to sign a form saying they had been given contact information for the backup doctor – violated privacy statutes because the ordinance allowed county officials to inspect the forms.

County Commissioner Nelson Peters, who championed the law, said the settlement keeps all the key provisions of the law in place, but drops the ability of county officials to inspect the forms.

“I don’t think that really affects what we were trying to do,” Peters said. “We lost very little.”

The settlement also calls for the county to pay $30,000 toward the health clinic’s legal fees.

The clinic was represented by the American Civil Liberties Union of Indiana; the county was defended at no cost by the Alliance Defense Fund, an Arizona group that defends religious freedom.

Posted by Marcia Oddi on Monday, February 21, 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, February 20, 2011:

From Saturday, February 19, 2011:

Posted by Marcia Oddi on Monday, February 21, 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 2/21/11):

Next week's oral arguments before the Supreme Court (week of 2/28/11):

Thursday, March 3rd

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 2/21/11):

Tuesday, February 22nd

Thursday, February 24th

Next week's oral arguments before the Court of Appeals (week of 2/28/11):

Next Tuesday, March 1st

Next Wednesday, March 2nd

Next Friday, March 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, February 21, 2011
Posted to Upcoming Oral Arguments

Sunday, February 20, 2011

Ind. Law - "IBJ EDITORIAL: Legislators need to create jobs, not kill them"

From a Feb. 19th IBJ editorial:

Our Legislature, we were told, would be all about jobs in 2011. Fiscal responsibility and education reform are front and center—but they are merely a means to the same end: jobs.

Sadly, a legislative body supposedly focused on job creation continues to willfully disregard the advice of the very business community that is expected to create those jobs.

The advice from business? Steer clear of immigration reform and gay marriage legislation. Those issues don’t advance job creation, they hurt it.

The response? Legislation dealing with immigration and marriage is sailing through the General Assembly. Our lawmakers’ professed love for job creation apparently has its limits.

Senate Bill 590 would give Indiana an immigration law on par with the controversial Arizona law. It would open the door to racial and ethnic profiling by police, creating an atmosphere of intolerance that business leaders say is inconsistent with participating in the global economy. * * *

Not a single job will be created by writing a gay-marriage ban into the state constitution. Yet some are pursuing that tired cause once again in spite of objections from the Greater Indianapolis Chamber of Commerce and some employers that it will alienate talented employees—who happen to be gay.

The definition of marriage bill has legs this year thanks to the Legislature’s Republican majority, but the version of the bill that passed the House goes beyond the stated goal of its sponsors, which is to protect the institution of marriage. The bill would also prohibit anything resembling marriage. That part of the bill could jeopardize existing policies under which some companies extend benefits to their unmarried employees’ domestic partners, both gay and straight.

If sponsors of this bill are truly concerned only about the institution of marriage, why does the legislation overreach?

Republicans should stick to what they’ve historically been known for: limited government and fiscal responsibility. Both are good for the economy. Making life difficult for businesses and their employees is not.

Posted by Marcia Oddi on Sunday, February 20, 2011
Posted to Indiana Law

Ind. Law - "Statehouse bills create significant abortion restrictions"

Heather Gillers reported Feb. 18th in the Indianapolis Star in a lengthy story that began:

Three bills that would make Indiana's abortion laws among some of the strictest in the nation moved forward Thursday in a clear display of how much clout social conservatives have gained in the General Assembly.

"Hopefully it will make Indiana one of the most pro-life states in the United States," said Rep. Eric Turner, whose bill cleared the Public Policy Committee and now goes to the overwhelmingly Republican House for a vote. Other lawmakers already have rushed to put their names on it, leaving the bill with a list of about 50 sponsors.

"I'm pleased," said Turner, R-Marion. "We've not been able for the last four years to move significant pro-life legislation."

Turner's measure would make abortions illegal after 20 weeks except to preserve the life of the woman. It also would require women seeking abortions to listen to a laundry list of risks whose scientific accuracy critics have questioned and require doctors performing abortions to tell patients that a fetus could feel pain. The Indiana State Department of Health also would be required to publish a pamphlet with some of that information.

A separate bill -- Senate Bill 328 -- which contained similar provisions, advanced to the Senate floor a few hours later.

And House Bill 1205, approved by the Public Policy Committee, would prevent Planned Parenthood of Indiana from receiving federal Medicaid dollars -- even though that funding goes to reproductive health-care services such as birth control and cervical cancer screenings, not to abortions.

Democrats and abortion-rights advocates looked stunned during testimony on the House measures. Two Democratic lawmakers stormed out of the committee room when Turner's proposal, HB 1210, passed 8-4, after a series of testimonials that critics said were based more on religion than science.

"What's happening is they're making women second-class citizens, trying to roll back to the time when women didn't have rights," said Rep. Vanessa Summers, D-Indianapolis, who walked out of the hearing with Rep. Linda Lawson, D-Hammond. "I couldn't listen anymore."

Posted by Marcia Oddi on Sunday, February 20, 2011
Posted to Indiana Law

Ind. Gov't. - "Down on luck Democrats must nurture next generation"

That is the heading of a thoughtful article today by Eric Bradner of the Evansville Courier & Journal, that builds on ideas set out by Democratic party thinker Jennifer Wagner in an Indianapolis Business Journal column.

Fellow attorney and blogger Doug Masson picks up the ball in this entry today that concludes:

Bradner points out that so far the state Republicans have devoted a lot of their energy moving social conservative wish list stuff – guns everywhere, abortions nowhere; that kind of thing. I think the desire to move those things has been frustrated for years by the Democratic house, and it’s kind of sling-shotting forward. Abdul at Indiana Barrister has suggested that, privately, some unnamed Republicans are concerned that this legislation isn’t necessarily a great idea and they should be focused on other things. But, it seems to me, these more level-headed Republicans have relied on the opposition party to keep the right wing of their party in check. They’ve been silent for so long, the silence has become acquiescence.

The Circle of Life laws of political physics suggests that this swing of the pendulum opens up opportunities on the left end of the political spectrum, but if all Hoosiers can see out of the Democrats are Pat Bauer and the leavings of Evan Bayh, those opportunities won’t amount to much.

Posted by Marcia Oddi on Sunday, February 20, 2011
Posted to Indiana Government

Ind. Gov't. - "In a legislative session seemingly overflowing with important and emotional issues – education, redistricting, guns, gay marriage and more – the sentencing proposal is emerging as one of the most contentious and significant"

To understand HB 561 and sentencing reform, begin with Fort Wayne Journal Gazette editorial page editor Tracy Warner's lengthy analysis piece today. It begins:

The controversial measure has support from Gov. Mitch Daniels and other key players but strikes fear into the hearts of lawmakers who don’t want to appear soft on crime.

While some of the debate revolves around rehabilitation versus punishment, the bigger issue is money. The proposal would shift hundreds of criminals each year from the state Department of Correction – the prison system – to county-level courts, probation and Community Corrections programs. The state would send more money to the counties – starting at a total of $5 million annually – but county officials worry the amounts will be insufficient, perhaps woefully so.

The idea that fewer criminals should go to prison comes not from a progressive advocacy group but from an independent, data-driven study of Indiana sentencing practices. Those who support the study’s findings include Daniels, Indiana Chief Justice Randall Shepard and Attorney General Greg Zoeller, not exactly wild-eyed liberals.

Released just two months ago, the study is the chief piece of evidence supporting the legislative proposal.

Advocates say the plan will save the state hundreds of millions of dollars while improving public safety with a better emphasis on rehabilitation that is less costly and more likely to turn lower-level, non-violent offenders away from crime. In turn, the state prison system would focus its resources on the more violent offenders who should be locked up.

Opponents argue that some measures are too soft on certain crimes and would merely transfer a financial burden from state government to cash-strapped counties. They worry about many of the details and question the rush to put controversial, little-debated policies into law.

Posted by Marcia Oddi on Sunday, February 20, 2011
Posted to Indiana Government

Ind. Courts - "711 St. Joseph County residents who ignored jury questionnaires ordered to court"

A story in the Feb. 19th South Bend Tribune, reported by Mary Kate Malone, begins:

A local judge has ordered more than 700 residents to appear in court next month and explain why they have ignored mandatory jury responsibilities.

If they fail to appear, they will be taken into custody, said St. Joseph Superior Court Judge Michael Scopelitis.

The 711 residents received jury questionnaires in the mail in October and did not return them to the county clerk, though they are required by law to do so, Scopelitis said.

The one-page questionnaires are used by court officials to create jury pools from which jurors are selected for criminal and civil trials.

Posted by Marcia Oddi on Sunday, February 20, 2011
Posted to Indiana Courts

Environment - "From homes to vehicles, meth labs can call just about anywhere home"

Lisa Trigg's informative story today in the Terre Haute Tribune-Star begins:

TERRE HAUTE — Clandestine drug labs can be found anywhere — indoors, in vehicles, even in the woods.

But most of the time in the Wabash Valley, labs are set up in houses, apartments, hotels or motel rooms, mobile homes, even storage units.

How does the public know that their next stay in a motel room, apartment, or their newly purchased home has not been contaminated by a methamphetamine lab?

Posted by Marcia Oddi on Sunday, February 20, 2011
Posted to Environment | Indiana Law

Ind. Law - Review of some of this year's firearms legislation

It is okay with the City of Indianapolis if guns are allowed in city public parks and libraries, so long as they aren't allowed at Lucas Oil Stadium. That from this story Feb. 18th by Jeremy Brilliant of Eyewitness News - some quotes:

If Senate Bill 292 becomes law, guns could be carried on the Monon Trail, or brought to the Broad Ripple dog park. A city ordinance forbidding weapons at parks would have to make an exception for firearms. * * *

City officials are most concerned with allowing weapons at city-controlled venues like Lucas Oil Stadium, Conseco Fieldhouse, Victory Field and the newly expanded convention center. * * *

According to a city spokesman, Indianapolis does not oppose the bill in general, but is hoping if it's passed, it includes exemptions for those public venues including the stadiums and convention center.

From a story by Maureen Hayden of CNHI, published in the Feb. 16 Terre Haute Tribune Star:
“Wherever you are, it could be a library, a County Council meeting or any kind of social meeting, if there are people sitting in that room with concealed weapons permits and they’re packing, that’s the safest room in that building,” said state Sen. Johnny Nugent, a Republican from Lawrenceburg, and longtime gun-rights advocate, on Monday.

Nugent thinks that would be so in the Indiana Statehouse as well, where visitors have been barred from bringing in weapons since 2007. Nugent is among a group of legislators who have a permit to carry concealed weapon, and often do so when the Legislature is in session.

An editorial today from the TribStar uses the same Nugent quote about "the safest room in that building" and then asks:
If that is true, then why does the bill exempt schools and courtrooms?

The Vigo County School Corp. recently began requiring people attending School Board meetings at the district’s central office to pass through a metal detector. Visitors’ purses and bags are also being searched. The local corporation took that proactive step after a man in Florida opened fire on a Panama City school board.

In this matter of public safety, a local school board — which has direct access to the advice of local law enforcement officials — should have the flexibility to implement policies to protect its employees, board members and the general public. Senate Bill 292, which now goes to the Indiana House, would prevent the VCSC from barring entry to a board-meeting visitor who is licensed to carry a concealed weapon. It would also allow people to bring weapons into hospitals.

The bill’s sponsor, state Sen. Jim Tomes, R-Wadesville, said the anxiety expressed by groups such as the Indiana Association of Cities and Towns is unnecessary. “We’re talking about legitimate citizens, people that have a license from the state of Indiana that allows them to do this,” Tomes told the Tribune-Star on Wednesday.

Yes indeed, "people that have a license from the state of Indiana that allows them to do this," but unfortunately we can't know who they are. That is because of a law the General Assembly enacted last year (see this Feb. 14, 2010 entry) making gun permit ownership secret - HEA 1068-2010.

Also passed last year was HEA 1065, the "take a gun to work bill," which is being amended this year by SB 411 to keep pesky employers from "asking their employees about any guns they might be keeping in their cars while at work."

Another bill on this year's NRA list for Indiana is SB 506, which would allow a person to carry a handgun on or about the person's body without being licensed to carry a handgun if he is in his vehicle. One has to think this is designed to operate in conjunction with "take a gun to work." (More here in this Jan. 25, 2011 entry.)

Posted by Marcia Oddi on Sunday, February 20, 2011
Posted to Indiana Law

Ind. Gov't. - Focus on Indiana's pending budget: (1) Governor's authority to withhold allotments, and (2) judges' pay raise

(1) Governor's authority to withhold spending of money appropriated by lawmakers.

Lesley Stedman Weidenbener of the Louisville Courier Journal had this story Friday afternoon, Feb. 18, that began:

INDIANAPOLIS — Democrats tried on Friday to strip away Gov. Mitch Daniels’ authority to make cuts in the spending plans written by legislature, but majority Republicans in the House Ways and Means Committee rejected the proposal.

Rep. Scott Pelath, D-Michigan City, offered the idea as an amendment on the $27.9 billion, two-year state budget bill, saying that the plan’s contents won’t matter as long as Daniels has the authority to withhold money appropriated by lawmakers.

“It’s rendering the decisions we make here meaningless,” Pelath said. “We need to reassert ourselves.”

But Ways and Means Chairman Jeff Espich, R-Uniondale, said he’s grateful that Daniels — and Democratic governors before him — have used the power to make the tough choices needed to balance the state budget when the economy sours. In the past two years, Daniels has cut roughly $1 billion in planned spending to keep Indiana’s budget in the black.

“We’re all cowards in this place as legislators, and I’m darn glad that Mitch Daniels did the dirty work,” Espich said.

The GOP-majority committee rejected Pelath’s amendment and then sent the budget bill to the full House on a 15-8 party-line vote. * * *

For decades, Indiana lawmakers have included a provision in their budget bills that authorizes the governor and state budget agency to “withhold allotments of any or all appropriations” if needed to deal with budget shortfalls.

The language gives a governor wide latitude to withhold money from schools, universities, state agencies and outside groups that receive grants. And the authority is not particularly unusual.

In 39 states, governors can reduce budgets without legislative approval, according to a report from the Federal Funds Information for States. But the report does not consider the Indiana governor's authority unfettered because lawmakers can easily take it away.

Indiana is also one of just a handful of states where the governor doesn't have a line-item veto, so Daniels has no authority to cut items from the budget before he signs it into law. He can only withhold the funds once the budget becomes law.

In the past, governors have used that authority to cut spending when tax receipts fell below expectations or when the General Assembly has passed deficit budgets.

The late Democrat Gov. Frank O'Bannon in particular had to slash state spending when revenues dropped during his second term.

But the depth and breadth of the recent downturn has led Daniels to cut even more aggressively. He’s withheld some $450 million that had been allocated to public schools over the past two years, reduced state funding for universities and sliced or eliminated some grants, including those for public broadcasting.

Two years ago, as Daniels was implementing cuts that frustrated some lawmakers, minority Democrats in the Senate sought unsuccessfully to remove language from the 2010-2011 budget that gave Daniels the authority to withhold spending.

For background, see this well-worth-reading May 26, 2010 ILB entry.

(2) No pay raises for state legislators, judges and prosecutors (statutorily tied to state employee salaries).

Deanna Martin's Feb. 18th AP coverage includes:

The budget approved Friday also: * * *

— Temporarily suspends pay raises for state legislators, judges and prosecutors.

The Indy Star's Mary Beth Schneider's Feb. 19th story has similar information:
Daniels didn't mention legislative pay increases in his budget. The House GOP did, putting on hold for two years the automatic 1.3 percent increase that lawmakers, judges and prosecutors were due, mirroring the average increase for state employees.
For background, see this June 7, 2007 ILB entry, headed "Linking of judges' pay to that of legislators decried at both federal and state levels," where I added: "My thoughts: It looks like just at the point in time when everyone else was trying to get out of the boiling pot, Indiana's judges may have been pulled in."

ILB: Although the budget was passed out of House committee Friday, the new language is not yet available online. When it is, it will be found here: HB 1001.

Posted by Marcia Oddi on Sunday, February 20, 2011
Posted to Indiana Government

Ind. Courts - "Debate on containing hog virus may yet have long way to go" [Updated]

Fascinating, lengthy story today by Jeff Swiatek in the Indianapolis Star business section. It begins:

Three years ago, TDM Farms, one of the nation's largest hog producers, tried a new tactic to fight the hard-to-treat PRRS virus on its farms.

It was a tactic borrowed from the "chickenpox parties" that many mothers used to hold for their young children, hoping to expose them to the childhood disease early and avoid infections later in life when chickenpox can be much worse.

TDM's version of the chickenpox party was an "acclimation farm" built in Tippecanoe County. There, TDM intentionally began exposing 200 of its healthy young sows each month to an especially virulent form of the PRRS virus. By catching the disease early, the sows gained immunity to it, so the virus wouldn't bother them once they're breeding and are more vulnerable.

What TDM didn't bank on was the virus spreading to its nearest neighbor a mile away. Which, alleges the neighbor, Alan Wilhoite, is exactly what happened in July 2009, with devastating results.

The virus laid waste to Wilhoite's barn, which was filled with hundreds of pregnant sows, causing more than 270 aborted baby pigs and 30 sow deaths.

More from later in the story:
In October, Tippecanoe Superior Court Judge Thomas H. Busch denied TDM's motion to throw out the case for lack of evidence. He said there's enough evidence in Wilhoite's favor to let the lawsuit go on.

TDM has appealed that denial to the Indiana Court of Appeals, where the case is pending.

In its appeal, TDM frames the lawsuit as a threat to Indiana's hog industry.

"This kind of lawsuit turns the Indiana pork industry into a circular firing squad, and creates a negative legal climate for pork producers generally."

[Updated at 3:00 pm] This story from Indiana Legislative Insight, which went to press last Friday, adds context to today's report:
You've probably not heard anything about this, but Indiana pork producers are embroiled in a nasty controversy over Porcine Reproductive and Respiratory Syndrome (PRRS), with pork producers with sow farrowing units finding themselves facing off against hog finishers over what is found as both a reproductive disease and a respiratory illness. Litigation has been filed over some of these issues, the Indiana State Veterinarian has been brought into the mix, and out-of-state producers have been accused of acting like Hoosier moms whose children's friends have chicken pox: deliberately infecting their stock in Indiana, putting other Indiana stock at risk, and then transporting the then-PRRS-immune hogs back out of state.

The Indiana State Board of Animal Health is surveying veterinarians to gauge the prevalence of PRRS, and is plotting the location of PRRS-infected herds through both voluntary reporting and the state's herd premises database that we told you about a few years ago. BOAH also reactivates the Swine Health Advisory Committee to help advise the State Veterinarian on whether special actions, such as testing pigs or limiting movement of herds should be mandated.

State Veterinarian Bret Marsh reminded a gathering of industry officials in late January that BOAH has considerable emergency authority at its disposal, but recognizes that "We could quarantine and wreck the whole pork industry in our state if we aren't careful. Indiana's pork industry is so interwoven with other states and Canada that we can't make regulatory decisions in isolation. One thing I've learned as a regulator is that before you quarantine, you had better know the criteria that needs to be met to lift the quarantine." No one at that working meeting favored a quarantine under conditions as they then existed.

Posted by Marcia Oddi on Sunday, February 20, 2011
Posted to Indiana Courts | Indiana Government

Ind. Courts - "Elkhart County's judges are looking for a new child-support commissioner after their first one resigned under fire earlier this month"

Justin Leighty of the Elkhart Truth has the story today. Some quotes:

Mona Biddlecome resigned Feb. 11, just days after the deputy prosecutor in charge of child support filed complaints against her in four cases, according to the county's personnel office and to court records.

Those complaints were filed under the so-called "Lazy Judge" rules, which require judges to rule on issues within a certain time. * * *

Biddlecome, whose husband is a judge, was appointed to the job when the IV-D court was established in 2004 and started hearing cases in 2005.

This month's prosecutor complaints weren't the first time Biddlecome was criticized publicly in the legal community. Last summer the Indiana Court of Appeals criticized her "dismissive and condescending rhetoric during the September 15, 2009, hearing. To be sure, we find such behavior among Indiana's judiciary to be undesirable and discourage such behavior in future cases. Indeed, if further proceedings were necessary in the instant case, we would order that the trial judge, rather than the commissioner, be assigned to those proceedings."

Here is the June 9, 2010 Court of Appeals opinion referenced in today's story.

Posted by Marcia Oddi on Sunday, February 20, 2011
Posted to Indiana Courts

Friday, February 18, 2011

Ind. Law - Indiana Lawmakers this evening will look at Sentencing Reform

See the details here, at the WFYI page. The blurb:

Over the past decade, Indiana's prison system has grown faster than some Indianapolis suburbs. If the inmate population continues to grow at it's current rate - three times faster than our neighboring states, Indiana will have nearly 35,000 inmates by 2017. But the cost to run the prison system is high, and not just in terms of dollars.

This week on Indiana Lawmakers with Jon Schwantes, our roundtable panelists discuss criminal justice reform. Joining Jon are Steve Johnson of the Indiana Prosecuting Attorneys Council, Larry Landis of the Indiana Public Defenders Council, Republican Senator Brent Steele of Bedford, and Matt Strittmatter, a two term sheriff from Wayne County. Should judges have greater leeway in sentencing? Should sentences for non-violent offenders be dialed back? These questions and more on Indiana Lawmakers, from the Statehouse to your house.

The bill SB 561, was amended and passed out of the Corrections Committee, but then referred to the Appropriations Committee. There it was significantly amended again. As of this writing, neither the amended language from the 2nd committee, nor a fiscal note reflecting it, are available on line, so what is says in detail is pretty much anyone's guess, as noted in this entry from yesterday.

[Update] Reports from both committees have now been filed and are available. The Feb. 18, 2011 printing, reflecting all the amendments from both committees, is now available here. We are awaiting a 3rd fiscal note, reflecting the bill as it is now.

Posted by Marcia Oddi on Friday, February 18, 2011
Posted to Indiana Government

Ind. Decisions - One bankruptcy law ruling from 7th Circuit today

In In the matter of: UAL Corp., a 25-page opinion, Judge Hamilton writes:

A claims trader buys claims against bankrupt debtors from creditors at a discount. See In re Kreisler, 546 F.3d 863, 864 (7th Cir. 2008). This appeal addresses how purchased claims can be affected by a debtor’s decision to assume or reject executory contracts from which those claims arose. We affirm the district court’s judgment holding that the purchaser of a prepetition unsecured claim arising from executory contracts is not entitled to a “cure” that would pay it 100 cents on the dollar for the claim because the debtor did not assume the executory contracts at issue.

Posted by Marcia Oddi on Friday, February 18, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Meth's rebound has state looking for answers"

Two stories reported by Eric Weddle today in the Lafayette Journal Courier on the state methamphetamine problem.

A quote from the first, on the meth rebound:

More than five years after a law sought to limit the sale of cold or allergy medicine used to make the highly addictive drug, police say they are trying to piece together new solutions to again crank down meth manufacturing in Indiana.
The second story, headed "Two bills, two views to slow meth's growth," begins:
Two separate bills intended to stem the spread of methamphetamine are being debated in the Statehouse this year.

Both bills focus on the sale of ephedrine or pseudoephedrine, a nasal and sinus decongestant and stimulant that is used to make the illegal drug. But one bill is receiving more support than the other.

Senate Bill 503 would electronically track sales of cold medicines that contain pseudoephedrine or ephedrine to prevent people from hopping from store to store to buy large amounts.

House Bill 1030 would require a prescription from a doctor to buy the medicines that contain the two ingredients.

As reported here yesterday, HB 1030 may be dead.

Posted by Marcia Oddi on Friday, February 18, 2011
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 9 today (and 7 NFP)

For publication opinions today (9):

In Term. of Parent-Child Rel. of M.W.; M.W. v. I.D.C.S. , a 14-page opinion, Judge Barnes writes:

M.W. (“Father”) appeals the termination of his parental rights to his child, M.W. We reverse. * * *

Given Father's efforts to comply with the Amended Plan and his release from incarceration soon after the hearing date, the trial court's findings are not supported by clear and convincing evidence. We reverse the trial court's termination of Father's parental rights.

In Term. of Parent-Child Rel. of M.W.; M.B. v. I.D.C.S. , a 14-page opinion, Judge Barnes writes:
M.B. (“Mother”) appeals the termination of her parental rights to her child, M.W. We reverse. * * *

Given DCS's agreement to give Mother a second chance, Mother's severe stroke, and Mother's recent progress at stabilizing her life, the trial court's findings are not supported by clear and convincing evidence. We reverse the trial court's termination of Mother's parental rights.

In Corvee, Inc. v. Mark French , an 8-page opinion, Judge Barnes writes:
Corvee, Inc. appeals the amount of attorney fees the trial court awarded it in Corvee's successful collection action against Mark French. We affirm.

The sole restated issue is whether the trial court properly calculated the amount of attorney fees to which Corvee was entitled. * * *

There is no evidence in this case that Corvee actually incurred attorney fees of $3,400 in attempting to collect this debt from French. To allow Corvee to recover that amount in the absence of such evidence gives rise to the possibility that it will enjoy a windfall at French's expense, or that it will recover more from French than the outstanding account balance and the necessary costs Corvee actually incurred in collecting it. Collection actions should permit creditors to recover that to which they are rightfully entitled to make themselves whole, and no more. The trial court correctly refused to enforce the forty percent attorney fees provision. We also see no basis for second-guessing the trial court's calculation that $1,000 would reasonably and actually compensate Corvee for its attorney fees.

[ILB: Interesting footnotes here, including #3, which begins "We need not decide whether, as between a creditor and its attorney, an attorney fee for collection equaling forty percent of the outstanding debt would constitute a reasonable fee."]

Steve Weinreb, et al. v. TR Developers, LLC

Indiana Spine Group v. Handleman Company

Antonio Gonzalez Vazquez v. State of Indiana

Carolyn Boss v. State of Indiana

Elsor Matthews, Jr. v. State of Indiana

State of Indiana v. John Lovett

NFP civil opinions today (1):

Holly (Staggs) Lewis v. Diana Nicholson and Gary Staggs, Jr. (NFP)

NFP criminal opinions today (6):

James T. Bagby, Jr. v. State of Indiana (NFP)

James Wilhelm Jr. v. State of Indiana (NFP)

Sarah Allen v. State of Indiana (NFP)

Dennis Sanders v. State of Indiana (NFP)

Matthew A. Flores v. State of Indiana (NFP)

Mary K. Layton v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 18, 2011
Posted to Ind. App.Ct. Decisions

Courts - "2nd Judge Insured By State Farm Steps Aside in $350M Case"

Interesting item from Martha Nell of the ABJ Journal Blog.

Posted by Marcia Oddi on Friday, February 18, 2011
Posted to Courts in general

Ind. Decisions - "Garden not eligible for copyright protection, 7th Circuit rules "

Sheri Qualters of The National Law Journal reported Feb. 16, 2010 re the 7th Circuit's Feb. 15th decision in Kelley v. Chicago Park District, where the Court ruled that a living garden is not eligible for copyright protection. A quote from the story:

The Visual Artists Rights Act of 1990 (VARA) amended the Copyright Act to give creators of some types of visual art two rights — attribution and integrity. The integrity right enables an artist to stop changes to the work that are "prejudicial to his... honor or reputation" and to seek recovery for unauthorized changes.

The opinion authored by Circuit Judge Diane Sykes noted that "VARA supplements general copyright protection; to qualify for moral rights under VARA, a work must first satisfy basic copyright standards." Circuit judges Daniel Manion and John Daniel Tinder joined the opinion.

Posted by Marcia Oddi on Friday, February 18, 2011
Posted to Ind. (7th Cir.) Decisions

Thursday, February 17, 2011

Ind. Gov't. - Still more on: Does access to public records include reasonably prompt access?

Updating this entry from earlier today, a long list of new 2011 PAC advisory opinions have been added to the Public Counselor's website, the most recent being from Feb. 15, 2011. Kudos.

Posted by Marcia Oddi on Thursday, February 17, 2011
Posted to Indiana Government

Ind. Decisions - Supreme Court accepts resignation from the bar of Ernest M. Beal, Jr.

In the Matter of Ernest M. Beal, Jr. was filed Feb. 10, 2010 but apparently just posted today.

Two earlier related ILB entries were posted April 21, 2010 and August 4, 2010, under the heading "Pastor-lawyer facing theft trial: Accused of raids on trust funds for group homes."

Posted by Marcia Oddi on Thursday, February 17, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court today grants transfer and adopts 9/16/2010 COA opinion [Updated]

The case is M.W. v. A.W. - here is the 2-page, 5-0 Supreme Court order, dated today.

Here is the 10-page Sept. 16, 2010 Court of Appeals opinion by Judge Riley, reversing the trial court. From the opinion:

Appellant-Respondent, M.W. (Mother), appeals the trial court's grant of adoption of the minor child, N.W., by A.W. (Stepmother). We reverse.

Mother raises two issues on appeal, which we consolidate and restate as: Whether the trial court erred in concluding that Mother's consent to the adoption of her minor child by Stepmother was not required.

From today's order of the Supreme Court:
Being duly advised and having concluded the Court of Appeals correctly decided the issues, we GRANT transfer and ADOPT the opinion of the Court of Appeals. See Ind. Appellate Rule 58(A)(1).

Additionally, Indiana Code section 34-52-1-1 permits a court in any civil action to award attorney fees to the prevailing party if the court finds that either party: “(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless; (2) continued to litigate the action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless; or (3) litigated the action in bad faith.” The record before us suggests one or more of these grounds may exist for an award of attorney fees.

As the prevailing party, Mother shall have sixty (60) days from the date of this Order in which to file in this Court a request for attorney fees incurred at trial and on appeal under section 34-52-1-1, should she choose to do so.

[Updated at 7:00 pm]Jeff Parrott has now posted this story on the South Bend Tribune website. It begins:
The Indiana Supreme Court has agreed with an appeals court in overturning a St. Joseph County judge’s decision to let a Mishawaka woman adopt her stepchild over opposition from the girl’s mother.

The stepmother, referred to only as "A.W." in court records, in June 2009 sought to adopt the then-8-year-old girl, who lived with her and the girl’s father. The stepmother cited an Indiana statute stating she did not need the mother’s consent for the adoption because she had failed to pay child support.

St. Joseph County Probate Judge Peter Nemeth granted the adoption.

But the mother appealed his ruling, and the Indiana Court of Appeals in September reversed Nemeth.

Posted by Marcia Oddi on Thursday, February 17, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Family criticizes Notre Dame in second sex attack case" [Updated]

The ILB had a number of entries last year on Notre Dame, its Security Police and the sexual attack of a student on campus who later committed suicide; the most recent entry was from Dec. 27, 2010.

This morning Stacy St. Clair and Todd Lighty, the Chicago Tribune reporters who covered last year's story, are reporting on a new incident. The South Bend Tribune has the story here. The long story begins:

For the second time this school year, a family has complained that the University of Notre Dame failed to swiftly and thoroughly investigate their daughter's report of being sexually attacked in a residence hall.

The family of a woman who attended nearby St. Mary's College says campus police delayed fully investigating her account that a Notre Dame student sexually assaulted her after she had been drinking.

The woman says she felt that police were more interested in protecting Notre Dame than in helping her. Her father, a Notre Dame graduate, corresponded with the university president and visited campus police to plead for investigative action.

[Updated at 5:30 pm] New from the South Bend Tribune website: "Notre Dame responds to criticism of response to sexual misconduct complaints."

Posted by Marcia Oddi on Thursday, February 17, 2011
Posted to Indiana Courts

Ind. Gov't. - More on: Does access to public records include reasonably prompt access?

Does access to public records include reasonably prompt access to the opinions of the Public Access Counselor?

On January 7, 2011 the ILB posted this entry, noting that just made available online was "a slew of advisory opinions (at least 40), issued over the past few months, but not posted for public access until now."

Well, now it is Feb. 17, 2011. No formal opinions have yet been posted for this year. It is unclear whether that means none have been issued. (And BTW, no informal opinions have been posted since May, 26, 2010).

These opinions are public records. Isn't there some obligation to the public to make them readily accessible online?

Posted by Marcia Oddi on Thursday, February 17, 2011
Posted to Indiana Government

Ind. Law - More on "Opposition growing to gun bill: Questions, concerns arise over firearm at sporting events" [Updated]

Updating this ILB entry from Feb. 16th, quoting a lengthy CNHI story on Senate Bill 292, which would pre-empt local regulations on firearms, Scott Olson has a story today in the IBJ headed "Gun bill raises concerns for CIB properties."

[Updated] And today's Indianapolis Star has this lead editorial, headlined "Gun interests trump local concerns."

Posted by Marcia Oddi on Thursday, February 17, 2011
Posted to Indiana Law

Ind. Law - Immigration bill passes out of Senate Appropriation 8-5; prison reform 13-0

Illegal immigration matters, SB 590, was just approved with some amendments.

Under consideration now is the SB 561, the prison reform bill. The amended fiscal note mentioned here is now worthless, as Senator Kenley's new amendment, not yet available, changes things again. Adopted 13-0.

Posted by Marcia Oddi on Thursday, February 17, 2011
Posted to Indiana Law

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

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (9):

Ahmad Foster v. State of Indiana (NFP)

Joseph L. Robinson, III v. State of Indiana (NFP)

Terry W. Dimmett v. State of Indiana (NFP)

David A. Hottman, Jr. v. State of Indiana (NFP)

Nathan D. Simpson v. State of Indiana (NFP)

Antoine Hill v. State of Indiana (NFP)

E.W. v. State of Indiana (NFP)

Kevin T. Pettiford v. State of Indiana (NFP)

James Edens v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 17, 2011
Posted to Ind. App.Ct. Decisions

Law - "‘Ghostblogging’ Law Firms Risk Their Reputations, Consultant Says"

Debra Cassens Weiss of the ABA Journal has this entry, with the quote "But don’t go so far as to hire professional writers to create blog content under lawyers' names ...".

Posted by Marcia Oddi on Thursday, February 17, 2011
Posted to General Law Related

Ind. Gov't. - Deadlines for bills in first house looming in General Assembly

Committee meetings are wrapping up in the Senate today. Next Wednesday, February 23, 2011 is the last day for 3rd reading of Senate bills in the Senate. That means 2nd reading ends Tuesday. Look for long floor calendars.

Friday, February 25, 2011 is the last day for 3rd reading of House bills in House. Noon Monday, February 28, 2011 is the last day for the Senate to receive House bills.

See source of legislative deadlines here.

Posted by Marcia Oddi on Thursday, February 17, 2011
Posted to Indiana Government

Ind. Law - Bills regulating cold medicine and child care ministries reportedly dead

From the AP, a story headed "Foes stall Indiana bill on child care ministries." The story begins:

A bill that would set state standards for faith-based child care centers in Indiana could be dead for this legislative session after opponents said it would lead to unjustified government regulation of church ministries.
Here is the digest of SB 56:
Child care regulation. Makes various statutory changes making certain health and safety requirements applying to child care providers consistent, including criminal history checks, drug testing, caregiver education and supervision, nutrition, immunizations, fire and hazardous materials safety, and administrative procedures for noncompliance. Makes technical changes. (The introduced version of this bill was prepared by the committee on child care.)
A story by Lesley Stedman Weidenbener of the Louisville Courier Journal is headed: "Indiana proposal to require prescriptions for some cold medicines appears dead." The story begins:
A proposal at the Indiana General Assembly to require a prescription to obtain some cold medicines won’t move this session because it would inconvenience too many Hoosiers, a key legislator said Wednesday.
The bill is HB 1030.

Posted by Marcia Oddi on Thursday, February 17, 2011
Posted to Indiana Law

Law - "Accurate Case Law on Westlaw?"

Law Librarian Blog has this post dealing with a Connecticut case.

And recall this ILB post from Jan. 6, 2011, which reported: "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."

Posted by Marcia Oddi on Thursday, February 17, 2011
Posted to General Law Related

Ind. Decisions - 7th Circuit decided one Indiana case yesterday

In Whitely, et al. v. Moravec, et al. (SD Ind., Hamilton), a 6-page opinion, Chief Judge writes:

Plaintiffs worked for Waste Reduction, Inc., at its facilities in Indiana, until they were laid off in 2006. The next year Waste Reduction entered bankruptcy in Michigan. Plaintiffs filed claims for overdue wages and fringe benefits. Their wage claims were allowed and paid, but they remained dissatisfied. Indiana imposes penalties on employers that tarry in remitting wages, see Ind. Code §§ 22-2-5-2, 22- 2-9-4(b), and Waste Reduction did not have enough assets to satisfy the penalty claims in the bankruptcy. So the ex-employees filed suit in a state court of Indiana, demanding penalties—not from Waste Reduction (any claims against it belonged in the bankruptcy court) but against the ten shareholders who had the largest equity stakes in the firm.

Indiana does not require corporate investors to make good the firm’s debts unless the conditions for piercing the corporate veil have been satisfied. Ind. Code §23-1-26-3. Plaintiffs do not contend there is any basis for investors’ liability under Indiana law. But Waste Reduction was incorporated in New York, and the internal affairs doctrine designates a firm’s state of incorporation as the source of rules about whether investors are liable for its debts. See Restatement (Second) of Conflict of Laws §307; Ind. Code §23-1-49-5. New York requires some investors in privately held firms to guarantee employees’ wages and benefits. * * *

Plaintiffs want to combine the Indiana statute, which makes employers liable for penalties when they do not pay wages on time, with the New York statute, which makes some equity investors directly liable to workers for wages and benefits. Yet neither state passed such a hybrid law, which the district judge likened to a griffin or jackalope. (A griffin is a mythical creature, but a jackalope is the main character in the short film Boundin’ and therefore must exist. Surely Pixar would not mislead millions of children.) All laws are compromises. A court can’t combine the pro-worker features of disparate laws, while disregarding the statutes’ proemployer features. In Indiana the employer is liable for penalties, but investors do not stand behind corporate debts; in New York some investors can be liable, but only for wages and benefits. * * *

The district judge therefore correctly concluded that §630(a) does not make defendants liable for a penalty under Indiana law. AFFIRMED

Posted by Marcia Oddi on Thursday, February 17, 2011
Posted to Ind. (7th Cir.) Decisions

Wednesday, February 16, 2011

Ind. Gov't. - Still more on "Daniels-backed prison reform is dealt a blow by prosecutors"

Updating this entry from Feb. 15th, the LSA has now posted the new fiscal impact statement based on the revised version of SB 561.

Posted by Marcia Oddi on Wednesday, February 16, 2011
Posted to Indiana Government

Ind. Law - "Opposition growing to gun bill: Questions, concerns arise over firearm at sporting events"

Updating this story from Tuesday on Senate Bill 292 – which would pre-empt local regulations on firearms, Maureen Hayden of CNHI newspaper has this story today - some quotes:

INDIANAPOLIS — Legislation that would bar local units of government from restricting firearms is raising questions about how it would impact sporting events in publicly-owned facilities, including the venue that is home to the 2012 Super Bowl.

Under the bill, municipal corporations — such as the one that owns Lucas Oil Stadium and Conseco Fieldhouse in Indianapolis — would be barred from banning guns in those facilities, as is the current practice.

Among those who’ve voiced opposition to the bill are the Indiana Association of Cities and Towns and Indianapolis Colt’s owner Jim Irsay. Irsay sent out a tweet on the social media site, Twitter, late last week opposing the gun bill and asking others to join him. * * *

[SB 292] passed the Senate Monday and now moves to the House.

There are exemptions in the bill for courthouses and schools. But local regulations banning guns in libraries, parks, and municipal buildings without courts, including stadiums and arenas would be void. CIB board member Brenda Myers, who represents Boone, Hendricks and Hamilton counties on the board, said CIB members are concerned about the bill’s impact.

“With the size of our buildings, and the number of people who come into them, it causes us great concern that we could not put restrictions in place to ensure those spaces are safe,” Myers said.

Myers said the bill, as currently written, raises more questions for municipal corporations than it answers. Among them are the insurance and security costs, both of which would rise.

“We really don’t know what the impact could be,” Myers said.

The co-author of the gun bill, state Sen. Brent Steele, R-Bedford, said fears about the bill are overblown.

He said that while the bill would bar CIB and other municipal corporations, as well as counties, cities and towns from restricting legal firearms from being brought into most of their facilities, it would not restrict a private organization staging an event from barring weapons. * * *

Steele said the concerns about the CIB-owned facilities had been “worked out.” But CIB board members apparently still had concerns, and voted on Monday — the day the bill was passed out of the Senate — to have the legislation clarified as to how it would impact entertainment and sports facilities owned by local units of government. * * *

The bill is being vehemently opposed by the Indiana Association of Cities and Towns who say the bill robs local communities from making decisions on how best to protect their communities.

Democratic State Sen. Tim Lanane, who is also the city attorney in Anderson, is an opponent. He, too, thinks the bill strips local governments of their “home rule” rights to restrict firearms in public venues.

But he thinks that opposition will fall on deaf ears.

“It’ll take somebody big to stop this,” Lanane said. “I’m not convinced that opposition from every mayor and city council in the state could halt this.”

Posted by Marcia Oddi on Wednesday, February 16, 2011
Posted to Indiana Law

Ind. Courts - "Appeals court puts hold on Simon estate dispute"

Updating a long list of earlier ILB entries on the Melvin Simon estate dispute, Jeff Swiatek of the Indianapolis Star reports today:

The Indiana Court of Appeals has accepted an appeal by Bren Simon and halted proceedings in the Hamilton County lawsuit that challenges the will of her late husband Melvin Simon.

The widow of the shopping mall magnate filed for the appeal in December to remove Hamilton Superior Court Judge William Hughes from the case, saying his impartiality is in question.

In accepting the appeal, the higher court put a stay on action in the 13-month-old case in Hughes' court.

Posted by Marcia Oddi on Wednesday, February 16, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

In James M. Thompson, D.O. v. Amy Gerowitz, et al. , a 15-page opinion, Judge Barnes concludes:

Although the trial court properly denied Dr. Thompson's motion for judgment on the evidence, the allegations of juror misconduct and bias require a new trial. We affirm in part, reverse in part, and remand for a new trial.
NFP civil opinions today (1):

SS Enterprise v. La Joya Apartment, Inc. (NFP)

NFP criminal opinions today (8):

Don Herrington v. State of Indiana (NFP)

Keith Hopkins v. State of Indiana (NFP)

D'Wan Maxwell v. State of Indiana (NFP)

Barbara L. Earle v. State of Indiana (NFP)

Joey Addison v. State of Indiana (NFP)

Emily R. Meyer v. State of Indiana (NFP)

Timothy A. Anderson v. State of Indiana (NFP)

Tony Lee Parish v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 16, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Bill to abolish merit system emerges from committee

SB 273, which may abolish the merit system of employment in at least two state agencies (IDEM and FSSA), effectively reinstating the patronage system, moved out of Senate Pensions and Labor this morning.

Posted by Marcia Oddi on Wednesday, February 16, 2011
Posted to Indiana Government

Ind. Courts - Supreme Court issues two opinions today

In Richard Joslyn v. State of Indiana, a 7-page, 5-0 opinion, Chief Justice Shepard writes:

Today we address the importance of protective orders for Hoosiers in two cases. In this case we hold that a minor defect in the service of a protective order was cured by Joslyn’s statements to police and his testimony at trial. Allowing protective order respondents to evade enforcement through technicalities is counter to the purpose of the Civil Protection Order Act and simply dangerous for those whom the act is designed to protect. Therefore, we affirm Joslyn’s convictions for stalking and invasion of privacy. * * *

Here, Joslyn admitted in statements to police and again during trial that he was aware of the protective order and had read its terms. That sufficed to prove that he “knowingly” violated the order.

Joslyn’s convictions for stalking and invasion of privacy are affirmed.

Dickson, Sullivan, Rucker, and David, JJ., concur.

In Jeffrey Tharp v. State of Indiana, a 7-page opinion, CJ Shepard writes:
In the second of two cases today addressing the importance of protective orders, we reverse Jeffrey Tharp’s conviction for invasion of privacy. We concluded in our companion case Joslyn v. State, that a criminal defendant may be found guilty of stalking or invasion of privacy where he has actual knowledge of a protective order, even if there were certain omissions of civil process in serving the order upon him. Still, proof of knowledge must be beyond a reasonable doubt. The evidence of oral notice in this case, however, is insufficient to sustain Tharp’s conviction. * * *

In short, it appears that the only evidence that Tharp knew of the protective order was from Pitzer telling him about it — at the same time she told him it was no longer valid.

The Court of Appeals reversed Tharp’s conviction, holding that oral notice can suffice but only when the notice comes from an agent of the State. As explained in our decision today in Joslyn v. State, 49S04-1102-CR-85, slip op., (Ind. February 16, 2011), notice can be sufficient under the Civil Protection Order Act even when it comes from someone other than an agent of the State if it includes adequate indication of the order’s terms. Id. at 7.

Still, the civil processes contemplated by the Act play an important role in assuring that respondents have an adequate opportunity to know that they have been enjoined and understand what is covered by the injunction. To restate the test, was there substantial evidence of probative value from which a finder of fact could find beyond a reasonable doubt that Tharp knowingly violated a protective order? We conclude that the mixed messages from Pitzer are oral notice of the type that is insufficient for a conviction. Put another way, the evidence is insufficient that Tharp received adequate notice of the protective order.

Tharp’s conviction for invasion of privacy is reversed.

Dickson, Sullivan, Rucker, and David, JJ., concur.

Posted by Marcia Oddi on Wednesday, February 16, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Long-Time Public Defender of Indiana, Susan K. Carpenter, Retires"

A press release issued today by the Indiana Courts announces:

After serving as the Public Defender of Indiana for nearly 30 years, Susan K. Carpenter, is retiring. The Indiana Supreme Court appointed Ms. Carpenter to the position in 1981. Chief Justice Randall T. Shepard made the announcement of Ms. Carpenter’s retirement today and said, "As chief advocate for the rights of indigent defendants, Susan Carpenter has made Indiana a place of greater justice. She has been both zealous and elegant in one of the toughest jobs in government, and she makes me proud to be a lawyer."

Posted by Marcia Oddi on Wednesday, February 16, 2011
Posted to Indiana Courts

About this blog - DSL issue puts ILB on hold

First thing this morning my DSL went out. Turns out it was the power supply. I've now procured and installed a new power supply and will try to catchup ...

Posted by Marcia Oddi on Wednesday, February 16, 2011
Posted to About the Indiana Law Blog

Tuesday, February 15, 2011

Ind. Gov't. - More on "Daniels-backed prison reform is dealt a blow by prosecutors" [Updated]

Updating this entry from this morning on SB 561, the committeee report filed and ultimately adopted last evening by the Senate's Corrections, Criminal and Civil Matters Committee is now available online.

The "adopted committee report," which I understand should be the same, will not be available until the Senate convenes today and the report goes across the front desk.

[Updated] The Sentencing Law & Policy Blog, having read this morning's Star story, links to it, commenting:

This interesting new story from Indiana, headlined "Daniels-backed prison reform is dealt a blow by prosecutors," spotlights how readily a legislature can morph a sentence-reducing reform proposal into a sentence-enhancing reform proposal.

Posted by Marcia Oddi on Tuesday, February 15, 2011
Posted to Indiana Government

Courts - Chicago Court clerk lays off 170 county workers

Lisa Donovan, Cook County reporter for the Sun-Times, reports today:

Cook County Circuit Clerk Court Dorothy Brown’s office handed pink slips to 170 employees on Monday, part of the belt-tightening in county government as officials work to plug a half-billion deficit.

Brown, whose office is the official record keeper of county court cases — from murders to foreclosure suis — didn’t say where the layoffs were happening.

Posted by Marcia Oddi on Tuesday, February 15, 2011
Posted to Courts in general

Ind. Courts - "Workplace shooter gets 17 years"

Updating this March 11, 2010 ILB entry, headed "Timing was terrible on guns at work bill," James D. Wolf Jr. of the Gary Post-Tribune is reporting today in a story that begins:

VALPARAISO — The 61-year-old Portage man who fired a shotgun into his workplace last year was sentenced to 15 years in prison on Monday.

Edgar Clinton Tillery II faced up to 20 years in prison for the March 5 incident, where he left a job performance interview and retrieved an automatic shotgun from his vehicle and returned and shot out the glass door.

Posted by Marcia Oddi on Tuesday, February 15, 2011
Posted to Indiana Courts

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

For publication opinions today (3):

In Deborah J. Wise v. David T. Hays, et al. , a 16-page opinion, Judge Vaidik writes:

A buyer filed a complaint against the sellers of real estate for fraud and negligence. The sellers filed an Indiana Trial Rule 12(B)(6) motion to dismiss for failure to state a claim. The buyer now appeals the trial court's grant of the motion. Because the trial court relied on matters outside the pleading, we treat the sellers' motion as one for summary judgment. Concluding that genuine issues of material fact exist as to whether the sellers made fraudulent misrepresentations on the sales disclosure form required by statute, we reverse the trial court's dismissal order and remand for proceedings consistent with this opinion.
ILB: This is a significant opinion re a seller's duty to disclose material facts about the property, see particularly continuing on from the last paragraph on p. 9.

In In the Matter of the Guardianship of J.Y., D.R. v. Carey Services, Inc. , a 12-page opinion, Judge Bailey concludes:

We acknowledge the attractiveness of D.R.’s approach, which seeks to permit only organizations that are also corporate fiduciaries to act as guardians. Nevertheless, the Legislature entrusted the courts with discretion to determine who should serve as a guardian, and circumscribed this decision with fewer limitations than it has the appointment of a personal representative.

We hold that the requirements of a personal representative are not the same as the requirements for a guardian, and that as a result a nonprofit corporation not authorized as a corporate fiduciary in Indiana may serve as guardian where it could not serve as a personal representative. Because this is the only issue raised by D.R. before this court—D.R. does not argue that the court abused its discretion in any other way when it appointed Carey as guardian of J.Y.’s person4—we conclude that the trial court was within its discretion to appoint Carey guardian of J.Y.’s person.

In K.D., et al. Alleged to be C.H.I.N.S.; S.S. v. I.D.C.S. , a 20-page, 2-1 opinion, Judge Vaidik writes:
S.S. ("Stepfather") appeals the juvenile court‘s adjudication finding his stepchildren to be children in need of services (CHINS). The Department of Child Services (DCS) filed a petition alleging that Stepfather‘s stepchildren were CHINS. The petition named both Stepfather and the children‘s mother as parties to the proceeding. Mother admitted to the allegations in DCS‘s petition, but Stepfather denied the allegations and requested a factfinding hearing. The juvenile court adjudicated the children CHINS without a hearing and then proceeded to disposition. We conclude that the juvenile court erred by denying Stepfather a factfinding hearing on the CHINS allegations. Although the Indiana Code provides that the court "shall" enter judgment following the admission by a parent, guardian, or custodian to the CHINS petition, Ind. Code § 31-34-10-8(1), the Code also guarantees parents, guardians, and custodians "in proceedings to determine whether a child is a child in need of services" the rights "(1) to cross-examine witnesses; (2) to obtain witnesses or tangible evidence by compulsory process; and (3) to introduce evidence on behalf of the parent, guardian, or custodian," Ind. Code § 31-32-2-3. We conclude that where, as here, one party admits to CHINS allegations while another denies them, due process entitles the contesting party to a factfinding hearing and adjudication. We reverse and remand. * * *

ROBB, C.J., concurs.

MAY, J., dissents with separate opinion. [which begins, at p. 13 of 20] I do not believe the trial court violated Stepfather‘s right to due process when it declared his step-children to be in need of services based on their Mother‘s admission to the allegations in the amended CHINS petition, without hearing evidence from Stepfather following his denial of the CHINS allegations. I must therefore respectfully dissent.

NFP civil opinions today (1):

Stylian Kaltsas v. Paul Harry Kaltsas (NFP)

NFP criminal opinions today (4):

Billy Ard v. State of Indiana (NFP)

David A. Allen v. State of Indiana (NFP)

Aubrey Davis v. State of Indiana (NFP)

Tamikka S. Lucius v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 15, 2011
Posted to Ind. App.Ct. Decisions

Law - "New York State Public Health Legal Manual - A Guide for Judges, Attorneys and Public Health Professionals" [Updated]

Be Specific highlights this new, sure to be useful, manual. You may want to try later, as downloading seems not to work right now.

[Updated 2/16/11] It looks like the ILB may have missed the lede here. Yesterday's NY Times had a front-page story featuring the new manual, headed "A Legal Manual for an Apocalyptic New York." It begins:

Major disasters like terrorist attacks and mass epidemics raise confounding issues for rescuers, doctors and government officials. They also pose bewildering legal questions, including some that may be painful to consider, like how the courts would decide who gets life-saving medicine if there are more victims than supplies.

But courts, like fire departments and homicide detectives, exist in part for gruesome what-ifs. So this month, an official state legal manual was published in New York to serve as a guide for judges and lawyers who could face grim questions in another terrorist attack, a major radiological or chemical contamination or a widespread epidemic.

Posted by Marcia Oddi on Tuesday, February 15, 2011
Posted to General Law Related

Ind. Law - "Senate votes to void local gun restrictions"

So reports Niki Kelly of the Fort Wayne Journal Gazette this morning in this brief story:

Local units of government would no longer be able to restrict firearms under a bill passed 38-12 by the Indiana Senate on Monday.

Senate Bill 292 – which pre-empts local regulations on firearms – now moves to the House for consideration.

There are a few small exceptions in the bill, which would allow local units to ban firearms in buildings with a court or at public meetings. But local regulations banning guns in libraries, parks and municipal buildings without courts would be void.

A state law still prohibits the carrying of firearms on school grounds.

Sen. Jim Tomes, R-Wadesville said the bill is meant to allow citizens to legally carry firearms around the state for protection. He said current local regulations have created confusion from county-to-county.

The GA computer seems to be on the wack, when it is working I'll post the votes.

Posted by Marcia Oddi on Tuesday, February 15, 2011
Posted to Indiana Law

Ind. Gov't. - "Daniels-backed prison reform is dealt a blow by prosecutors"

The ILB will have more on this story later, but last evening the Senate's Corrections, Criminal and Civil Matters Committee, as I understand it, via a committee amendment stripped out the entire content of SB 561 and inserted a new bill which bears some similarities to the original. The proposed committee report, which was adopted, is not available online at this time.

Heather Gillers of the Indy Star has a good first report here. Some quotes:

A criminal justice reform bill that Gov. Mitch Daniels hoped would save more than $1 billion by reducing the number of people held in prison is headed to the Senate floor.

But the bill, approved 8-2 by a Senate committee Monday, has changed so much because of pressure from prosecutors that it's no longer clear whether it will save any money in the long term.

"We just don't accept the idea that because the Department of Correction has a bed problem that we should be releasing serious felons back on the street," said Sen. Sue Glick, R-LaGrange, a member of the Senate's Corrections, Criminal and Civil Matters Committee. * * *

Many of the provisions of the original bill -- aimed at diverting low-level drug offenders to treatment and community corrections -- still remain in some form.

But the bill's overhaul is a major victory for prosecutors, who persuaded lawmakers to add a provision ensuring serious violent felons serve at least 85 percent of their sentences. Currently, most offenders have to serve only half their sentences because they earn a day of credit for each day of good behavior. * * *

Committee Chairman Brent Steele, R-Bedford, said the bill "focus(es) prison time on those we are afraid of and not those we're mad at."

Prosecutors also headed off an effort in the original bill to reduce the "drug-free zones" -- the 1,000-foot areas around schools, apartment complexes, public parks and housing projects where drug transactions carry an enhanced sentence -- to 200 feet.

A study by DePauw University students found that 53 percent of the area inside I-465 is in a drug-free zone. Sometimes, the students found, offenders facing the enhanced charges had been selling drugs in their own apartments with no children present.

"This I think smacks right in the face of everything we did this summer," said Sen. Greg Taylor, D-Indianapolis, one of the two opponents of the bill. He said the 1,000-foot provision "will penalize my constituency in greater numbers." * * *

The bill somewhat accomplishes one of its original key goals -- bringing some of Indiana's unusually harsh penalties for low-level offenses more into line with neighboring states. Theft of less than $750 would no longer be a felony; it would be a misdemeanor. Prison time for selling and possessing cocaine and methamphetamine would be shorter.

"There's a lot of things in that bill that are good," said Larry Landis, executive director of the Indiana Public Defender Council.

Lawmakers also added an effort to help low-level felons rejoin society, though prosecutors expect to target that provision for elimination. A person convicted of a nonviolent felony crime could petition the court to make that conviction invisible to employers -- though not to police -- after waiting eight years from the end date of their sentence. [ILB: expungement]

Posted by Marcia Oddi on Tuesday, February 15, 2011
Posted to Indiana Government

Ind. Courts - "State moves to suspend accused Roanoke lawyer"

So reports Rebecca S. Green in this story this morning in the Fort Wayne Journal Gazette.

This follows on a long story by Green from Sept. 3, 2010, and an update from Jan. 29, 2011.

From today's story:

The Indiana Supreme Court’s Disciplinary Commission filed an emergency petition to suspend the law license of local attorney Daniel E. Serban, citing criminal charges filed against him.

Serban, of Roanoke, faces charges of corrupt business influence, forgery, and two counts of theft. Charged last September, he is accused of failing to distribute money paid into the Serban Law Office’s Trust Account to clients or to those entitled by court order to receive it.

After his arrest, Serban told police some of the money he used to pay off the original client, after he was confronted, had been taken from money put into the trust account for an estate. He told investigators he forged the name of the estate’s personal representative on the check.

Attorneys are required to keep escrow-type accounts where money either coming from or going to their clients will be kept. Those accounts are to be treated with extreme fiduciary care, and attorneys have a strong ethical responsibility to protect that money. * * *

According to the petition filed last week in the Indiana Supreme Court, the state’s disciplinary commission received information about the allegations before the criminal case was filed.

Documents also outline other allegations against Serban, as well as a history of financial difficulties leading up to his September arrest.

In 2008, Serban wrote a check of nearly $40,000 to John Magnuson, who owned a collection company.

The check failed to clear because of insufficient funds and later Serban wrote Magnuson a certified check drawn on a different account for $11,547.

Serban still owes Magnuson the rest of the money, and Magnuson’s efforts to collect the money by hiring another attorney seems to have been unsuccessful, according to court documents.

A former legal assistant of Serban’s told investigators that over a three- to four-year period, $300,000 was collected on behalf of clients but not reimbursed, instead transferred to Serban, according to court documents.

Serban had an outstanding federal tax lien of $149,261 in 2005, as well as Indiana tax warrants for about $30,000, according to court documents.

He also had repeated overdraft notices on his personal bank account, according to the petition. * * *

Serban had been previously disciplined by the commission, but it was unclear from the online docket sheet when that occurred and what the nature of the discipline was.

Posted by Marcia Oddi on Tuesday, February 15, 2011
Posted to Indiana Courts

Monday, February 14, 2011

Ind. Decisions - David Camm motion filed with Court of Appeals

Janelle MacDonald reports today for WAVE3 in a story headed "Camm lawyers ask appeals court to step in." Some quotes:

[David Camm's] lawyers hope the next judge to hear his case will be the justices of the Court of Appeals.

"The criminal justice system is going to have to decide how much will they tolerate," said Stacy Uliana, Camm's attorney.

Uliana says as lawyers argued in November whether Keith Henderson should be allowed to prosecute Camm in a third trial, no one -- not the judge, defense or prosecutor -- could find another case in Indiana or the country like this: where a book deal had been signed and then the case overturned.

"We can't find one prosecutor who has actually went out and tried to profit off of one of his ongoing cases," said Uliana.

Camm's lawyers make the case to the Indiana Court of Appeals in a motion filed this month asking justices to hear the issue. They say unless there is a high court ruling on the propriety of such a deal, it will happen again.

"America's obsessed with true crime," Uliana said. "There's a lot of money in it so Keith Henderson is not going to be the only prosecutor who's going to be approached or who is going to want to write a book."

That, she says, is a dangerous road that should end with this case.

"You have a prosecutor who is trying to sensationalize, who's trying to get more media attention to try and get the story to go the way he wants it to go in order to tell and to market his story," said Uliana.

Because it involves the Court of Appeals, it's unclear how long it could take to resolve this issue, if the court decides to take the case. Uliana is hopeful it will be decided by late spring or summer.

Here is a list of earlier ILB entries on the David Camm trials.

The current motion for interlocutory appeal is docketed as Case Number: 87 A 01 - 1102 - CR - 00025.

Posted by Marcia Oddi on Monday, February 14, 2011
Posted to Indiana Courts

Courts - "W.Va. court says warrants can cover cell phones"

In a case of first impression in West Virginia, the W.Va. Supreme Court has ruled:

"When searching a vehicle pursuant to a valid search warrant," [Chief Justice Robin Davis] wrote, "no additional search warrant is required to examine the contents of items that are properly seized in the execution of the warrant, including, but not limited to, cellular telephones."
See the AP story here.

Posted by Marcia Oddi on Monday, February 14, 2011
Posted to Courts in general

Ind. Decisions - Supreme Court sets date for Judge Young's 30-day suspension

In an "Order Accepting Agreed Discipline" filed Nov. 23, 2010 (ILB entry here), the Supreme Court ruled:

William E. Young will be suspended for thirty (30) days from office without pay, and the costs of this proceeding will be assessed against him. An opinion of the Court will follow in due course, which shall indicate when the suspension will take effect.
Today, in In the Matter of William Young, a 7-page, per curiam opinion posted late this afternoon, the Supreme Court has ruled:
William E. Young, Judge of the Marion Superior Court, is hereby suspended from office without pay for a period of thirty (30) days, commencing on February 22, 2011. The suspension shall terminate and the judge shall automatically be reinstated to office at 12:01 a.m. on the thirty-first day thereafter. * * *

Dickson, Sullivan, Rucker, and David, J.J., concur.

Shepard, C.J., concurs in result with separate opinion.

I would expect that in the absence of a settlement, this case should have resulted in a lengthier suspension. The per curiam understates the willfulness of the Respondent‟s conduct and the damage it has done to the public standing of the judiciary. Fortunately, the overwhelming number of Indiana‟s judicial officers strive demonstrably toward a much higher standard.
Still, as in other litigation settings, there is much to be said for the benefits of settlement, so I have joined in approving the agreement tendered by the parties.

Posted by Marcia Oddi on Monday, February 14, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending February 11, 2011

Here is the Clerk's transfer list for the week ending February 11, 2011. It is three pages (and 38 cases) long.

Four transfers were granted for the week ending February 11, one with opinion:

__________

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, February 14, 2011
Posted to Indiana Transfer Lists

Ind. Decisions - Transfer list for week ending February 4, 2011

No transfer list was issued for the week ending Feb. 4, 2011.

Posted by Marcia Oddi on Monday, February 14, 2011
Posted to Indiana Transfer Lists

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

In Kartman et al. v. State Farm Mutual (SD Ind., Lawrence), a 24-page opinion, Judge Sykes writes:

After a severe hailstorm struck central Indiana in April 2006, thousands of homeowners filed claims with State Farm Fire and Casualty Company for hail damage to the roofs of their homes. State Farm thereafter paid millions in property-damage claims, but not all of the policyholders were satisfied with their payments. Several brought this proposed class action in state court alleging breach of contract, bad-faith denial of insurance benefits, and unjust enrichment. The lawsuit sought damages and an injunction requiring State Farm to reinspect all class members’ roofs pursuant to a “uniform, reasonable, and objective” standard for evaluating hail damage. State Farm removed the case to federal court.

The plaintiffs moved to certify a damages class under Rule 23(b)(3) of the Federal Rules of Civil Procedure and also—or alternatively—a class for injunctive relief under Rule 23(b)(2). The district court issued a split decision on the motion. The court declined to certify a Rule 23(b)(3) damages class, holding that each plaintiff’s claim of underpayment required an individualized factual inquiry on the merits. But the court concluded that a class claim for injunctive relief could proceed under Rule 23(b)(2); the court certified a class to determine whether State Farm should be required to reinspect policyholders’ roofs pursuant to a “uniform and objective standard.” State Farm appealed, arguing that certification under Rule 23(b)(2) is not permissible for this action.

State Farm is right. This case is not appropriate for class certification under Rule 23(b)(2). As an initial matter, the plaintiffs’ claim for injunctive relief suffers from some serious conceptual confusion. This is a suit for breach of contract and bad-faith denial of insurance benefits, the remedy for which is damages. State Farm had a contractual obligation to pay policyholders for their hail-damage losses and a corresponding duty in tort not to deny claims in bad faith. But there is no contract or tort-based duty requiring the insurer to use a particular standard for assessing hail damage. As such, there is no independent cognizable wrong to support a claim for injunctive relief requiring State Farm to conduct a class-wide roof reinspection pursuant to a “uniform and objective” standard.

More generally, certification of a class under Rule 23(b)(2) is permissible only when class plaintiffs seek “final injunctive relief” that is “appropriate respecting the class as a whole.” FED. R. CIV. P. 23(b)(2). Here, the requested injunction is neither “appropriate” nor “final.” The relief is not appropriate for several reasons, not least of which is that the normal remedy for wrongful denial of insurance benefits is damages, not equitable relief. Moreover, the injunction envisioned by the plaintiffs would in no sense be a final remedy. A class-wide roof reinspection would only lay an evidentiary foundation for subsequent individual determinations of liability and damages.

Finally, certification of an “issues” class under Rule 23(c)(4) is neither sought nor appropriate here. The particular standard State Farm used to evaluate policyholders’ hail damage is not an element of any case presented by these plaintiffs for final injunctive relief. In some circumstances, the applicable standard of care might be a proper separable issue, but in this case, the ultimate relief sought is money damages, and thus the requirements for certification of a damages class under Rule 23(b)(3) must be satisfied. Here, they were not. Accordingly, we reverse the district court’s order and remand with instructions to decertify the class.

Posted by Marcia Oddi on Monday, February 14, 2011
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In DBL Axel, LLC v. Lasalle Bank National Association, et al. , a 9-page opinion, Judge Brown writes:

DBL Axel, LLC (“DBL”), by new counsel, petitions for rehearing following our affirmance of the trial court's Order Directing Immediate Turnover of Funds (the “Order Directing Turnover”) in favor of LaSalle Bank National Association, Trustee (the “Trustee”) for Registered Holders of J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-CIBC14, Commercial Mortgage Pass Through Certificates, Series 2006-CIBC14, acting by and through its Special Servicer, Midland Loan Services, Inc, pursuant to a Settlement Agreement and Release (the “Settlement Agreement”) entered into between DBL and the City of Lawrenceburg (the “City”). DBL raises three issues, one of which we find dispositive and revise and restate as whether the trial court's Order Directing Turnover violated DBL's due process rights to the extent that it had not been determined whether DBL was still in possession of the funds at the time the trial court issued its order. We vacate our original opinion, reverse, and remand. * * *

For the foregoing reasons, we grant rehearing and vacate our original opinion in this matter, reverse the trial court's Order Directing Turnover, and remand for further proceedings.

In Ryan J. Goens v. State of Indiana , a 9-page opinion, Judge Mathias writes:
Ryan Goens (“Goens”) has filed an interlocutory appeal challenging the Johnson Superior Court's denial of his motion to suppress. Goens argues that the traffic stop that resulted in his arrest for driving while intoxicated was not supported by reasonable suspicion. We agree and reverse the trial court's denial of Goens's motion to suppress. * * *

“Although a law enforcement officer's good faith belief that a person has committed a violation will justify a traffic stop, an officer's mistaken belief about what constitutes a violation does not amount to good faith. Such discretion is not constitutionally permissible.” [citations omitted] As well as having a constitutional dimension, this limitation is one of common sense. While we as citizens desire and expect law enforcement officers to enforce the requirements of state statutes as they pertain to motor vehicles, if the condition of our motor vehicles clearly and visibly meets these requirements, we should not be subject to a traffic stop on suspicion of an alleged violation thereof. Because the condition of Goens's vehicle could not reasonably appear to violate applicable Indiana statutes at the time it was observed by Officer Lengerich, the vehicle's condition could not and did not support reasonable suspicion for the traffic stop. We therefore conclude that the trial court abused its discretion when it denied Goens's motion to suppress. Reversed.

NFP civil opinions today (1):

Auditor of Clark Ct., et al. v. JP Morgan Chase Bank N.A. (NFP)

NFP criminal opinions today (6):

Jeremy James Lahr v. State of Indiana (NFP)

Charles Summers v. State of Indiana (NFP)

Jeruan L. Brown v. State of Indiana (NFP)

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

Sandra McDaniel v. State of Indiana (NFP)

Jerry Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 14, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issued a second disciplinary ruling Friday

In addition to the Rocchio ruling, summarized here last Friday, the Court issued a second disciplinary opinion later in the day.

In the Matter of Heather McClure O'Farrel
l, a 12-page, 3-2 ruling concerning attorney fees, should be closely reviewed by all practicing attorneys. In the per curiam opinion, the Court writes:

We find that Respondent, Heather McClure O'Farrell, engaged in attorney misconduct by making agreements for and charging unreasonable fees in violation of Indiana Professional Conduct Rule 1.5(a). For this misconduct, we find that Respondent should receive a public reprimand. * * *

Respondent practices law as an attorney of McClure & O’Farrell, P.C. (“the Law Office”). The Law Office uses an “Hourly Fee Contract” or a “Flat Fee Contract” in most cases when it represents a party in a family law matter.[1] Both types of contract contain a provision for a nonrefundable "engagement fee." The Commission alleges Respondent improperly charged two clients nonrefundable engagement fees and did not refund unearned fees after the representations ended. The case was submitted to the hearing officer on the parties' stipulation of facts in lieu of an evidentiary hearing. * * *

[[1] We note that Respondent is represented in this action by another member of the Law Firm, who states that Respondent did not draft the contracts at issue.]

The Commission charged Respondent with violating Indiana Professional Conduct Rule 1.5(a), which prohibits making an agreement for, charging, or collecting an unreasonable fee, and Rule 1.16(d), which prohibits failure to refund an unearned fee promptly. * * *

Discipline. The parties stipulated that Law Firm's contracts were drafted with the intent that they comply with [Matter of Kendall, 804 N.E.2d 1152 (Ind. 2004)]. While not making a recommendation regarding discipline, the hearing officer noted that the Commission suggested the appropriate sanction is between a public reprimand and a short suspension with automatic reinstatement. Attorneys with misconduct similar to Respondent's have received public reprimands. See, e.g., Matter of Stephens, 867 N.E.2d 148, 156-57 (Ind. 2007); Matter of Whitehead, 861 N.E.2d 702 (Ind. 2007); Kendall, 804 N.E.2d at 1161; cf. Thonert, 682 N.E.2d at 526 (30-day suspension with automatic reinstatement for similar misconduct plus knowingly making false statement to the Commission). Although the unrelenting denial by Respondent (through her law firm, which has vigorously represented her) of any misconduct in the face of strong precedent to the contrary might counsel in favor of a greater penalty, we note the mitigating factors of Respondent's lack of prior disciplinary history and her cooperation with the Commission. We conclude, on balance, that Respondent should receive a public reprimand.

Conclusion. The Court concludes that in charging nonrefundable flat fees, Respondent violated Indiana Professional Conduct Rule 1.5(a) by making agreements for and charging unreasonable fees. For Respondent's professional misconduct, the Court imposes a public reprimand. * * *

Dickson, Sullivan, and David, JJ., concur.

Shepard, C.J., with whom Rucker, J., joins, dissenting only as to the sanction. Respondent's lawyer indicates in very strong language that she is unrepentant. We conclude that a period of suspension without automatic reinstatement is necessary for the protection of clients.
[emphasis by ILB]

ILB comment: Admitting responsibility should be encouraged but punishing a good faith defense seems wrong. Where is the dividing line?

Posted by Marcia Oddi on Monday, February 14, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - "New York Takes Step on Money in Judicial Elections"

In the NY Times today, William Glaberson has a long report that begins:

New York’s top court officials will bar the state’s hundreds of elected judges from hearing cases involving lawyers and others who make significant contributions to their campaigns, a move that will change the political culture of courts and transform judicial elections by removing an important incentive lawyers have for contributing.

Campaign fund-raising of the more than 700 trial-level judges around the state who are elected has been a persistent source of complaints and allegations of corruption, with some judges doling out lucrative assignments to lawyers who were political contributors.

The decision takes the form of a new rule of the state court system and will be announced on Tuesday by Jonathan Lippman, the state’s chief judge. It is believed to be the most restrictive in the country, bluntly tackling an issue — money in judicial politics — that has drawn widespread attention.

The rule is more restrictive than similar measures adopted recently in Washington, Oklahoma, Michigan and other states, and would take the question of disqualification entirely out of judges’ hands. It flatly states that “no case shall be assigned” by court administrators to a judge when the lawyers or any of the participants involved donated $2,500 or more in the preceding two years, court officials said.

Posted by Marcia Oddi on Monday, February 14, 2011
Posted to Courts in general

Ind. Courts - More on "Budget cuts end free lunch for Lake County civil court juries"

IU-Indy Law Prof Joel Schumm sends a note about yesterday's ILB entry that quoted from Bill Dolan's NWI Times story. Schumm writes:

Interesting story about Lake County. I wonder what the practice is around the rest of the state?

When I worked for Judge Miller as a bailiff while attending night school (1995-98), the county paid for jurors' lunches for a couple of years and then stopped. (We would usually take them to the Cozy or another nearby restaurant. I really enjoyed the opportunity to talk with the jurors during lunch and observe the group dynamic at work.) Unless something changed, I assume there have been no free juror lunches in Marion County for at least a decade.

Sending jurors out on their own during a short lunch recess is not ideal. Some are not familiar with downtown and may get lost or return late. Most go to the City Market or nearby and could end up inadvertently overhearing conversations between witnesses, family members, etc. in the case.
The NWI Times story mentioned that there were few restaurants near the Gary courthouse of Judge Gerald Svetanoff and quoted the judge that if the weather was bad and if jurors went out to eat they might not have a parking place when they came back.

Posted by Marcia Oddi on Monday, February 14, 2011
Posted to Indiana Courts

Courts - Another update on "Three lawsuits may change how NCAA operates"

Updating this earlier ILB update from one year ago, Paul Elias of the AP had a lengthy story yesterday on the combined O'Bannon/Keller suit,, being argued tomorrow before the 9th Circuit. The story begins:

SAN FRANCISCO -- There was a time when Sam Keller and his teammates couldn't wait to get their hands on Electronic Arts Inc.'s latest edition of NCAA Football, which included their team and images down to Keller's distinctive visor he wore while playing quarterback for the University of Nebraska in 2007.

EA shares undisclosed royalties with the NCAA for use of college stadiums, team names and uniforms and the players' images in a game that racks up hundreds of millions of dollars in annual sales. Because they are amateur athletes, the players don't receive any direct benefit from the appearances of their nameless images in the game.

But Keller and an increasing number of players, such as former UCLA basketball star Ed O'Bannon, think they should and have filed at least nine federal lawsuits against the NCAA and EA over the last two years.

On Tuesday, Keller will be in Pasadena to watch his team of lawyers urge the 9th U.S. Circuit Court of Appeals to uphold a trial judge's decision that EA and the NCAA appear to owe the former Cornhusker and - by the extension - thousands of other former players millions of dollars for using their images in the video game.

Posted by Marcia Oddi on Monday, February 14, 2011
Posted to Courts in general

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

Here is the answer to "What did you miss over the weekend from the ILB?"

From Sunday, February 13, 2011:

From Saturday, February 12, 2011:

From late Friday, February 11, 2011:

Posted by Marcia Oddi on Monday, February 14, 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 2/14/11):

Thursday, February 17th

Next week's oral arguments before the Supreme Court (week of 2/21/11):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 2/14/11):

Wednesday, February 16th

Thursday, February 17th

Next week's oral arguments before the Court of Appeals (week of 2/21/11):

Next Tuesday, February 22nd

Next Thursday, February 24th

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, February 14, 2011
Posted to Upcoming Oral Arguments

Sunday, February 13, 2011

Ind. Courts - Wrap-up of: Another "traffic court judges behaving badly" story

Some of you may remember this ILB entry from Oct. 29, 2010, which read in full:

WISH TV 8 had a lengthy story last evening by Deanna Dewberry, headed "Judge put on spot for parking hypocrisy," about Judge Charles Hunter, 87, of the Beech Grove Traffic Court.
The lengthy WISH TV story is still available here. The story touches on several matters at issue in this General Assembly, including whether there should be a retirement age for judges, and whether city courts should be abolished.

Here are some quotes:

[Charity Bryan] says she and her husband got the ticket after leaving their van in a parking spot reserved for the handicapped at the Beech Grove Walmart.

"Oh I was mad," said Bryan.

She's had a handicapped placard since her crippling accident five years ago. Her husband always drives her around in one of the family vans just as he did on that day to Walmart. She says the placard had fallen off the rear view mirror and was on the dashboard. When she and her husband discovered the ticket, they were sure police would throw it out.

"So we went to the police station to try to explain it to them, and they told us we had to go to court," said Bryan.

And that's where they went. But Bryan says what happened behind the closed doors of the Beech Grove Traffic Court was a farce.

"The judge was rude. He wouldn't let me talk," said Bryan.

She says the judge gave far more weight to the officer's testimony that her placard wasn't where it was supposed to be. It didn’t matter that she was paralyzed, or that she legally had a placard. In the end, the judge lowered her ticket cost from $75 to $10.50 but tacked on $114.50 in court costs, bringing her ticket cost to $125.

Bryan says the judge didn't sympathize with her plight at all. And what surprised her most is that the honorable Charles Hunter uses a wheelchair.

"He came out in a wheelchair and I thought, 'OK, he'll understand and he'll dismiss it,'" she said.

No such luck. I-Team 8 wanted to know why, so we decided to visit the judge.

"I'm an old timer," Hunter said laughing as he adjusted his microphone.

His self-description is accurate. Judge Hunter is 87. Local GOP leaders brought him out of retirement in 2007 to run for judge of Beech Grove's newly-created traffic court. When we asked him about Charity Hunter's case, the judge said he didn't remember it.

Judge Hunter hears cases once a month and it's been just 14 days since he presided over Charity Bryan's trial, but he has no memory of the case. So we pose a hypothetical scenario.

We asked if someone could indeed prove that they had a handicapped placard and they were indeed disabled, even if the placard wasn't where it was supposed to be, would he dismiss the ticket?

"If they actually were disabled and they had a placard I wouldn't find them guilty, no," he said. * * *

In 2009, the traffic court brought in just over $86,034.50 for the city of Beech Grove. But running the court is expensive. Subtract the judge's part time pay, which is $42,000. Salaries for the clerk, bailiff and other professional services total $115,878. Benefits total $8,560. That brings the court's total 2009 budget to more than 166,400 dollars last year. That means the traffic court ended 2009 more than $80,400 in the red. And they're going need to bring in more money to break even this year.

Beech Grove city county treasurer, Chris Duffer, told I-Team 8 the city traffic court opened two years ago with the hopes that it would become a revenue source for the city.

I-Team 8 investigators want to ask the judge that very question, and we wait for him outside the court. It's then that we spot a car parked in right in front of the door in a handicapped spot. There is neither a placard on the mirror nor a handicapped designation on the license plate.

And so we waited. We had to know who owns the car parked illegally in a handicapped spot right in front of the traffic court door. Within minutes, we watched astounded as Judge Hunter's son took him to the car.

When we told the judge that he was illegally parked, he laughed. The deep irony of the situation seems to strike him as funny. But soon the judge stops laughing and stops talking.

“I just neglected to put it up there," his son interjected. We then reminded them that Judge Hunter rejected that argument in court when the Bryans told him the same thing.

"I didn't get a ticket, did I?" the judge said.

"So, it's just their bad luck for having gotten a ticket?" we asked.

"I guess so, yeah." he responded. * * *

We've been digging through Beech Grove's traffic court records to try to find out whether defendants who go to court are getting a fair shake. But the court keeps no record of the judge's rulings. The only formal record kept is the money collected at the end of the month. * * *

As for Judge Hunter, he continues to serve as Judge of the Beech Grove traffic court. Indiana Supreme Court judges must retire at 75, but no such limitations apply for local traffic courts.

So what is the point of retelling this over three months later?

Marion County Democratic and Republican parties just held their slating conventions Saturday, Feb. 12. The ILB has learned that on Saturday the Republicans slated Andrew Wells (a 2010 graduate) over the incumbent: 87 year old Charles Hunter. (And yes, both are listed on the Roll of Attorneys - one admitted in 1950, the other in 2010.)

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to Indiana Courts

Ind. Law - Proposed constitutional amendment may be no laughing matter

Updating this ILB entry from Feb. 7th re Sen. Steele's SJR 9 which would add chickens to our Indiana bill of rights, Eric Bradner of the Evansville Courier & Press writes today in a column headed "Indiana Senate cries fowl, passes obscure legislation:"

The Senate was in the middle of deliberating a constitutional amendment proposed by Sen. Brent Steele, R-Bedford.

Apparently, Steele's heart was set on adding to Indiana's constitution specific protections of Hoosiers' rights to hunt, fish and farm.

Literally, all the amendment says is that "the people have a right to hunt, fish, harvest game or raise farm animals to be used for food, which is a valued part of our heritage and shall forever be preserved for the public good." * * *

Steele's constitutional amendment passed, 44-5. Seriously.

First, though, Senate Minority Leader Vi Simpson, D-Ellettsville, appropriately poked fun at it by trying to amend it to include gardening.

House Speaker Brian Bosma, R-Indianapolis, invited media into his office Friday to discuss the Legislature's progress so far. He was diplomatic when asked if the hunting-and-fishing amendment would get a hearing now that it has crossed the hall.

"Well, I hunt and fish, and I don't know that anyone has ever questioned my constitutional right to do so. I have to say it's not our highest priority at the moment," he said.

But when another reporter said the amendment would also protect Hoosiers' rights to raise poultry, Bosma took the bait.

"Does it really say that? Oh, come on. Oh, come on. Really?" he said with a laugh. "There's only so much time. My family wants to make sure our constitutional right to milk cows continues."

ILB opinion: As currently worded, the amendment would add a new section to the Bill of Rights stating:
The people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, or poultry, which is a valued part of our heritage and shall be forever preserved for the public good, subject to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly.
First, look at the "subject to" clause, which may or may not be part of the amendment as finally adopted, if it gets that far. Surely it is not intended to render meaningless the language it follows, so what does it mean?

Second, the Court of Appeals upheld the constitutionality of Indiana's Right to Farm Act in the Jan. 12, 2009 decision of Donald J. Lindsey and Jacquelyn Lindsey v. Johannes DeGroot, et al. Our Supreme Court has not addressed the question ... See this ILB entry from June 6, 2009.

The constitutional amendment, if effected, would also raise numerous other questions concerning, for example, zoning, as well as issues concerning confined feeding and confined hunting.

This proposal has already passed one house.

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to Indiana Law

Ind. Law - Editorials today on SB 590 and HB 1255

Two editorials today on SB 590, the immigration bill, and HB 1255, the "English-only" bill:

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to Indiana Law

Courts - "To Defend the Accused in a Tucson Rampage, First a Battle to Get Inside a Mind"

Joseph Goldstein and Marc Lacey of the NY Times have this very interesting story today on "Judy Clarke, the public defender for the man charged in the Tucson shooting, Jared L. Loughner." Just a sample:

For the small cadre of lawyers specializing in federal death penalty cases, getting the defendant to trust them, or just to grudgingly accept them, can be half the battle. That is especially true when mental illness is a factor, as it may be in the case of Mr. Loughner, a troubled young man accused of opening fire on a crowd on Jan. 8 in an attempt to kill Representative Gabrielle Giffords.

In her unassuming, almost motherly way, Ms. Clarke excels at getting close to people implicated in awful crimes. In jailhouse meetings that can stretch most of the day, she listens intently and grows to know her outcast clients in a way few ever have in their troubled lives, colleagues say.

Other entries on Attorney Clarke may be found here, from Jan. 12, 2011, and here from Jan. 11th.

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to Courts in general

Ind. Gov't, - "La Porte Ordinance would require special permits for churches"

Matt Fritz's story in the Feb. 11, 2011 LaPorte Herald Argus reports:

LA PORTE — Churches may not be able to locate wherever they want in the city of La Porte after officials adopt a joint ordinance with the county and Michigan City.

This is because the ordinance requires special permits for churches or places of worship in residential areas. * * *

A fifth [and defeated] provision dealing with the allowance of religious structures in any districts of the city was voted on separately. A majority of members voted for the allowance, but it didn’t have the required four votes to pass. Members Goot Logwood and Mitch Bishop cast the dissenting votes.

Commission Attorney David McCain recommended the provision because he didn’t think the special permit requirement would hold muster with established state law. He said the state Supreme Court has ruled in the past to allow churches in any district in Indiana, whether commercial or residential. The new ordinance would have stopped this. * * *

McCain said the new design standards for the city’s downtown and NewPorte Landing area were “too vague and unenforceable,” and the new flood plain ordinance might bar residents from getting flood insurance because it wasn’t yet approved by the Indiana Department of Environmental Management. Commission members agreed to pass these changes.

ILB: Of interest here may be the 7th Circuit rulings on the federal Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), including this decision from July 2, 2010.

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to Ind. (7th Cir.) Decisions | Indiana Government

Ind. Gov't. - "New Albany police officer received vacation, holiday pay during suspension"

Harold J. Adams has the story in the Louisville Courier Journal.

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to Indiana Government

Law - "NCAA president says transparency vital to future"

In an interesting AP story that appears in a number of papers today:

NCAA president Mark Emmert says transparency is critical to the future of the NCAA, though he doesn't yet know the best way to accomplish that goal.

Emmert, four months into his tenure as president, spoke to a meeting of Associated Press sports editors on Saturday night on the campus of IUPUI.

He said he considers better understanding by the media and public about how the NCAA deals with rules infractions and enforcement an important issue facing the organization.

Later in the story there is discussion of "the case of Auburn quarterback Cam Newton, whose father, Cecil, the NCAA determined sought money from Mississippi State during his son's recruitment."

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to General Law Related

Ind. Decisions - Court rules "No excuse for prosecutor's failure to show up for DUI hearing"

Friday's NFP Court of Appeals decision in the case of Robert W. Gard v. State of Indiana gets a worthwhile look from today from Justin Leighty of the Elkhart Truth. He reports:

GOSHEN -- The Indiana Court of Appeals ruled Friday that a local judge shouldn't have taken a prosecutor's excuse as a reason to reverse a ruling in favor of a DUI defendant.

The decision came in the case against Robert W. Gard, 56, of Vandalia.

Gard was arrested on a DUI charge in December, 2008, according to court records. The following April Gard's attorney filed a motion to supress some of the evidence against Gard. Judge Olga Stickel scheduled that issue for a hearing in May, 2009.

Deputy Prosecutor Ashley Ulbricht didn't show up for the hearing, and Stickel ruled in Gard's favor, according to the appeals judges and to court documents.

A month later, Ulbricht filed a request for Stickel to overturn her ruling. "At the hearing, Ulbrichte apologized to the trial court for not appearing at the hearing on Gard's motion to suppress and explained that the State had been absent because of an inadvertent oversight" and because she was filling in for someone else in a different court, according to the appeals judges.

A few months later Stickel ruled in the deputy prosecutor's favor, and Gard filed the appeal.

The appeals court ruled that Ulbrecht's apology wasn't enough, and that she didn't present any evidence to support the notion that she would've won had she attended the hearing. "Here, the State failed to present any admissible evidence to support a showing of a meritorious defense. We conclude that the trial court abused its discretion when it granted the State's motion for relief," they wrote.

The case is still pending in Elkhart Superior Court 4 and is scheduled for a trial next month.

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to Ind. App.Ct. Decisions

Law - "Dispute Shines Light on How Homes Are Measured"

The NY Times had a story Feb. 11, 2011 that may also have applicability to realty sales elsewhere. Some quotes from the long story by Christine Haughney:

Four years ago, Rishi Bhandari and his fiancée put down a deposit on Apartment 3T at 110 Livingston Street, the old Board of Education headquarters in Downtown Brooklyn, which was being converted to condominiums. The price was not exorbitant, $795,000, for a two-bedroom, two-bathroom apartment.

But just before they were to close, Mr. Bhandari noticed that the living space seemed smaller than he had expected. He returned with a measuring tape, he said, and confirmed his suspicions: the bedrooms, living room and kitchen area covered only 634 square feet, even though the floor plans said they had 743.

Most people view square-foot calculations with the same trust they put in miles-per-gallon stickers and the weight-loss claims of diet pills. But Mr. Bhandari, a lawyer, wanted the price of his apartment reduced by the size of the discrepancy — or by what an appraiser calculated to be about $111,000. The developer refused, offering to return his deposit, $79,500, plus interest, and to let him walk away.

Mr. Bhandari sued, claiming the plans were deceptive. Real estate lawyers say it is extremely rare for such disputes to go to trial, but on Monday, that is exactly what will happen when the case of the missing 109 square feet begins in State Supreme Court in Brooklyn. * * *

In a city where every square inch is precious, Mr. Bhandari’s case goes to the heart of one of the most contentious topics in real estate: how to measure the size of a home. Some calculations include the closets; some count the space between walls; many, it seems, contain a few dozen square feet pulled out of thin air. There is no hard rule, and so lawsuits are uncommon. * * *

The state attorney general’s office, which oversees the sale of new condominiums, does not tell developers how to tabulate space, but requires them to disclose to buyers how they do it and to abide by their stated guideline. (In co-op conversions, square footage is not required to be reported.)

The developer in this case, Two Trees Management, is not disputing Mr. Bhandari’s numbers, but it has denied that its figures were deceptive.

There is no dispute now about the overall size of the apartment, which was marketed at 1,137 square feet, including the bathrooms, closets and hallway. What is in dispute is the amount of space considered the living area.

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to General Law Related

Courts - "Where Have You Gone, Atticus Finch?"

Ashby Jones at WSJ Law Blog wrote Friday:

Where have you gone, Atticus Finch? And you, Perry Mason? What about Clarence Darrow and F. Lee Bailey and Gerry Spence?

Of course, there are still famous trial lawyers out there, masters of the opening statement and the cross-examination. David Boies; John Keker; Ted Wells; Mark Lanier; Cris Arguedas, to name a few.

But the truth is that fewer and fewer cases go to trial these days, so a dwindling number of lawyers are making livings in the courtroom. Click here for a story on the trend, from the Tennessean.

The well-worth-reading story, from Brandon Gee, begins:
NASHVILLE — Lawyers Bob Walker and John Branham remember a time when they would argue multiple trials in a week — if not a day.

These days they're lucky to have more than one trial a year.

The trend of settling disputes through alternative means rather than going through a jury trial has been going on for about two decades and continued last year, according to recently released court statistics.

Avoiding trials saves litigants time and money — a big selling point, particularly for risk-averse businesses in tough economic times. But many lawyers worry that grizzled trial veterans such as Branham and Walker are an endangered species and that the jury trial is vanishing.

Her inability to participate in the trials she loved was a key reason Nancy Jones left Bass Berry & Sims' office in 2007 to lead the Tennessee Board of Professional Responsibility.

"What it really boiled down to is, when you wake up in the morning, and you haven't had a trial in nine years, can you look at yourself in the mirror and call yourself a trial lawyer?" she said.

U.S. District courts had 5,325 civil and criminal jury trials in 2008, down from 6,839 in 2000 and 9,844 in 1990. Tennessee jury trials in state civil courts were down by 1,000 from 2000 to 384.

Todd Campbell, chief judge of the U.S. District Court for the Middle District of Tennessee, said the lack of jury trials is not only a concern for lawyers and firms but also the general public.

"I'm not part of that new-age, touchy-feely, let's-all-hug-and-arbitrate (mindset)," Campbell said. "There's an important social function to people having an open forum to air their grievances in a democracy."

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to Courts in general

Ind. Law - "Bill would give schools 15% of forfeited funds"

Heather Giller of the Indianapolis Star reported Feb. 12th on the upshot of the Senate committee hearing on SB 215, concerning civil forfeitures. The story begins:

Schools would receive 15 percent of the assets police seize from criminals, and the rest would go to law enforcement agencies, under a proposed forfeiture law a Senate committee approved Friday.

The new version of the bill has support from both State Superintendent of Public Instruction Tony Bennett and the Indiana Prosecuting Attorneys Council, making it the closest thing so far to a compromise on the controversial issue of how to divide forfeited funds.

State statute says any money that exceeds "law enforcement expenses" is supposed to be turned over to the Common School Fund. But an Indianapolis Star investigation last year found that the statute is so vague in defining "law enforcement expenses" that only five of Indiana's 92 counties turn over any money to schools.

A whistleblower lawsuit filed last year contends that prosecutors violated the statute by hoarding the money. The Common School Fund is a revolving loan fund that finances school construction and technology projects and the start-up of charter schools. * * *

In addition to setting a formula for dividing assets, the bill would add supervision by the state, judges and local elected officials to the forfeiture process. A recent disciplinary case against a Delaware County prosecutor who was paying himself with forfeiture money reminded state lawmakers and officials how vulnerable the current system is to abuse. * * *

It's hard to know how much 15 percent of forfeited funds would amount to, because no one knows how much police will seize from criminals in the coming year, and it varies widely from county to county. Last year, police seized $1.3 million in Marion County.

But the Common School Fund will clearly fare better than it has with the less than $50,000 per year it had been receiving. Last year's Marion County split alone would have brought the fund $195,000.

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to Indiana Law

Ind. Gov't. - "Clark County auditor receives notice of tort: Former employee claims she was unfairly fired"

Braden Lammers reported Feb. 11, 2011 in the Clark County News & Tribune:

CLARK COUNTY — A former Clark County auditor’s office employee has filed a notice of a tort claim for being fired when newly elected Auditor R. Monty Snelling took over the position.

Shirley Bell, a long-time county employee, was fired six-and-a-half months before she was set to retire and on the first day Snelling took over the office.

The notice of tort claim alleges Bell was terminated Jan. 3 from her job as clerk for “political retaliation.” Snelling is a Republican and Bell serves on the Jeffersonville Township Board as a Democrat.

Snelling denies Bell’s claim.

“What I [did] had absolutely nothing to do with political motives,” he said. “In fact, I believe everyone I hired are Democrats.” * * *

Bell’s attorney Steve Voelker said the timing of his client’s dismissal raises the question of whether the termination was politically motivated.

“Ms. Bell was fired on the first day Mr. Snelling took office,” he said. “Time raises the inference it was political.”

Voelker added that his client was not given an adequate review before being dismissed and that her performance should have been evaluated for at least six months before a determination on her employment was made.

Snelling claimed that Bell, like all employees, was given a review.

“This office had scathing reviews from the state and I made a promise to the taxpayers to straighten it up,” he said. “And what I’ve done is basically reorganize the office. Job descriptions have changed in here. In fact, the job description that Ms. Bell had is no longer there.” * * *

Because of the lack of review and that Bell was not a policy-making employee, the notice of a tort claim was filed.

“[A person] cannot be fired for political association or affiliation,” Voelker said. “She was a non-confidential, non-policy making employee. She was only a clerk in the auditor’s office.”

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to Indiana Government

Ind. Courts - "Budget cuts end free lunch for Lake County civil court juries"

Bill Dolan had a NWI Times story on Feb. 11th that began:

CROWN POINT | It's feast or famine for Lake County's juries.

Jurors in the seven Lake Superior Court, Civil Division courts are now forced not only to seek the truth, but also hunt for their mid-day meals since the judges had to end the practice of feeding jurors on public funds under a new austerity budget.

However, free juror lunches remain on the docket in the better-funded Lake Circuit and Lake Criminal Courts.

The injustice of it reportedly stunned a civil court juror recently who had to pay for lunch in the Lake County Government Center cafeteria but watched a criminal court jury file through the same food line free of charge.

"I'm frustrated about it and embarrassed," Chief Superior Court Judge John Pera said Friday. "We struggled long and hard over every penny in our budget to see where we can cut and still provide the same level of service the public expects."

Civil Division judges said the disparity comes from 30 percent spending cuts imposed on them over the last two years that bit more deeply into their already bare bones budgets than that of other courts who commanded more tax and user fee revenues they don't share with others.

The thought of hungry jurors made Hobart lawyer Kevin Marshall so queasy this week, he and another lawyer on the opposite side of an insurance dispute dipped into their own wallets to buy jurors pizza and sandwiches during the four days they heard evidence in a trial in Civil Division Judge Gerald Svetanoff's courtroom at the Gary courthouse.

"This is making jurors in civil cases disgruntled, so the opposing counsel and I came to an agreement to anonymously pony up $100 each so the jury would get lunch," Marshall said.

He said they got permission from Chief Judge Pera as long as the jurors didn't know the lawyers were feeding them to avoid influencing their verdict.

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to Indiana Courts

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 fifth week of committee hearings in the 2011 session. The bills passed out of committee included those relating to forfeiture, foreclosures, immigration, court fees, elimination of a mandatory retirement age for trial court judges, and many more.

Posted by Marcia Oddi on Sunday, February 13, 2011
Posted to Indiana Courts

Saturday, February 12, 2011

Courts - "Documents in FOIA Requests Must Be 'Searchable,' Federal Judge Rules"

Daniel Wise reports in the Feb. 10, 2011 New York Law Journal in a story that begins:

The federal government must provide documents "in a usable format" when it responds to Freedom of Information Act requests, a federal judge in Manhattan has ruled.

Southern District of New York Judge Shira A. Scheindlin, after faulting the government for offering "a lame excuse" for delivering non-searchable documents, ruled for the first time that federal agencies must turn over documents that include "metadata," which allows them to be searched and indexed.

Scheindlin also ruled that "common sense dictates" that the handling of FOIA requests should be informed by "the spirit if not the letter" of the Federal Rules of Civil Procedure, which govern the handling of electronic information stored in computers.

More from the story:
In response to the groups' requests, the government agencies delivered documents lumped together in large files that were not searchable and in which individual documents could not be identified without reading through the entire file. Also, e-mails were separated from their attachments.

In the FOIA context, Scheindlin noted that no federal court had required that data be furnished in a format allowing it to be searched and electronically organized.

Following the decisions of several state courts dealing with their own FOIA statutes, Scheindlin ruled that the federal law requires that metadata, which allows for electronic files to be organized and searched, must be retained in the records agencies produce.

The federal act is silent as to the form in which documents must be delivered, Scheindlin noted. It only requires that documents be provided in any "format" designated in the FOIA request if it is "readily reproducible" by the agency in that format.

Metadata, in the FOIA context, is "readily reproducible," she held.

For both FOIA and e-discovery purposes, Scheindlin further observed that "whether or not metadata has been specifically requested," the production of non-searchable documents is "an inappropriate downgrading" of electronically stored information.

See also the end of this ILB entry from Feb. 26, 2008, and this one from Feb. 26, 2008, re Indiana.

Posted by Marcia Oddi on Saturday, February 12, 2011
Posted to Courts in general

Ind. Decisions - 7th Circuit decides one Indiana case yesterday

In Mouhamadou M. Sow v. Fortville Fire Dept. (SD Ind., Young), a 21-page opinion, Judge McCuskey (Central District of Illinois, sitting by designation) writes:

Plaintiff-Appellant, Mouhamadou M. Sow, was arrested for forgery based upon information that he tried to cash a fake money order. Plaintiff was later able to produce a receipt for the money order and the charge against him was dismissed.

On July 24, 2008, he filed a Complaint in the Southern District of Indiana. Plaintiff named as Defendants: the United States of America, U.S. Postal Employees Lynnette Hertzer and Brenda Rains, Fortville Police Department, McCordsville Police Department, and Officer Michael Fuller of the Fortville Police Department in his individual and official capacities. Plaintiff’s action was brought under 42 U.S.C. §§ 1983, 1985, and 1986. Plaintiff also alleged numerous state law claims, asserting that the district court had supplemental jurisdiction over those claims.

On December 17, 2008, the district court dismissed the U.S.A., Hertzer and Rains from the lawsuit. On April 13, 2010, the district court entered two orders and granted summary judgment in favor of the three remaining Defendants— the Fortville Police Department, Fuller, and the McCordsville Police Department. Plaintiff has appealed from the final orders of the district court which entered summary judgment. We affirm.

Posted by Marcia Oddi on Saturday, February 12, 2011
Posted to Ind. (7th Cir.) Decisions

Courts - "Real Time Texting OKed by UK Supreme Court"

See this post from the Law Librarian Blog. In brief, the official policy is:

[A]ny member of a legal team or member of the public is free to use text-based communications from court, providing (i) these are silent; and (ii) there is no disruption to the proceedings in court. No one present in a courtroom is permitted to use a mobile device to make a telephone call, or to receive such a call.
Our Supreme and Appellate Courts do not, as far as I am aware, have any published policy re the use of text-based communications in court. There is a policy on cameras, but the policy seems to be decisions will be made on a case-by-case basis and it applies only to media:
To cover a Supreme Court argument, the media must fax a request to be a candidate for the media pool prior to the argument date. No formal rule exists that requires submission of a request by a specific deadline, but it is recommended that any photographer wishing to cover the hearing contact the Court approximately 48 hours prior to the scheduled time. If there are more requests than positions, the Court will select individuals by random drawing.

The Court of Appeals guidelines allow the judicial panel hearing the case to determine whether cameras or recorders would detract from the process or argument. The media must request permission from the three-judge panel hearing the case to allow equipment in the courtroom. The request must be submitted 48 hours prior to the scheduled time for the appellate argument.

Thoughts?

Posted by Marcia Oddi on Saturday, February 12, 2011
Posted to Courts in general

Friday, February 11, 2011

Ind. Decisions - Supreme Court issues "must read" disciplinary opinion

In the Matter of Patrick K. Rocchio is a 9-page, 4-1 per curiam opinion in an attorney disciplinary matter. Some quotes:

This matter is before the Court on the report of Hon. Barbara L. Brugnaux, the hearing officer appointed by this Court to hear evidence, on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. The Respondent's 1972 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4.

We find that Respondent, Patrick K. Rocchio, engaged in attorney misconduct that, standing alone, would warrant a sanction in the lowest range. However, Respondent's conduct during the disciplinary process demonstrates his inability to recognize his clear violations of this state's disciplinary rules, his contempt for those rules and this disciplinary process, and his lack of appreciation for the role of this Court's hearing officer and Disciplinary Commission mem-bers and staff. In order to protect the people in this state from further misconduct, these substan-tial aggravating circumstances require suspending Respondent from the practice of law without automatic reinstatement.

The attorney represented himself in this action. The opinion includes quotes from Respondent's Brief in Support of Petition for Review:
It must be stated, at the risk of offending others that anyone who has not suffered a full frontal cranial lobotomy knows that the words published on a Michigan lawyer's law office internet describing his professional narrative, including his licensing credentials, is not the practice of law in the State of Indiana. * * *

This rather bizarre and foolish disciplinary process regarding my alleged attorney misconduct long ago moved away from the focus upon the misdeeds described in the Verified Complaint.

This proceeding is about behavior and protocol; what to say and how to behave in the presence of the supreme monarchy, or in this situation, the representatives of the Indiana Supreme Court who alone decide what is and what is not attorney misconduct subject to discipline. * * *

My experience with the Indiana attorney disciplinary system is a hideous aberration of justice: a Disciplinary Commission and staff attorney with a self-image of pompous arrogance; a hearing officer who permits herself to be used as a rubber stamp.

The Court's opinion continues:
Similar examples can be found on nearly every page of Respondent's briefs to this Court and to the hearing officer, as well as in his correspondence to counsel for the Commission and in his testimony before the hearing officer. The hearing officer noted Respondent's invectives against the Commission's former executive secretary ("a first-class ass"), the Commission ("soft and lazy"), the disciplinary process (“a modern day version of the Star Chamber, a Salem witch hunt, or a Spanish Inquisition”), and this Court's disciplinary rules (“frivolous and antiquated,” “rules of behavior conceived over a cigar and brandy . . . during the late Victorian Era by a group of self-impressed lawyers”), as well as his repeated use of caustic terminology (e.g., “despicable,” “deceptive and ridiculous,” “naked stupidity,” “cutesy and evasive”). The Respondent also engages in personal attacks on the hearing officer, calling her “sadistic” and displaying “a disappointing level of ignorance, arrogance, and stupidity.” We concur with the hearing officer's finding that “Respondent's inflammatory statements were not spontaneous remarks made in the heat of the moment, but were his planned, intentional, oft-repeated comments.” * * *

The Court concludes that Respondent violated Indiana Professional Conduct Rule 7.2(c)(3) and (d)(2) by including in a public communication a statement intended or likely to create an unjustified expectation and statistical data or other information based on past performance or prediction of future success, that he violated Rule 7.3(c) by using a written solicitation for professional employment without labeling it as "Advertising Material" and filing it with the Commission, and that he violated Rule 5.5(b)(2) by falsely representing on his websites that he was licensed to practice law in Indiana when his license was inactive. We conclude that the serious aggravating circumstances discussed above warrant suspension without automatic reinstatement.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 180 days, without automatic reinstatement, effective on the date of this opinion. Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). * * *

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

Rucker, J., dissents to the length of suspension believing it disproportionate to the misconduct alleged, and inconsistent with sanctions imposed for similar misconduct. Instead he would impose a thirty (30) day suspension without automatic reinstatement

Posted by Marcia Oddi on Friday, February 11, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 14 NFP)

For publication opinions today (4):

In Alexander R. Pala v. Annare L. Pala Loubser , a 17-page opinion, Judge Brown concludes:

In summary, the parties presented testimony and other evidence regarding their respective incomes and financial situations and Pala's physical condition, and the trial court was able to review and consider the evidence in exercising its discretion in deciding whether to terminate Loubser's maintenance obligation. At the time that maintenance originally was awarded, $1,200 per month was determined to be a fair amount in light of Loubser's income and Pala's financial situation and physical condition. However, we note that the parties were married for approximately seven years before they separated and filed for divorce, and nearly eight years have elapsed since the dissolution of the parties' marriage. The court was able to consider the extent to which Loubser's income has decreased and Pala's health has improved during that time and the steps Pala did take or could have taken to address his physical or financial circumstances. Based upon our review of the record, we cannot say that the evidence leaves us with the firm conviction that a mistake has been made or that the trial court's decision is clearly against the logic and effect of the facts and circumstances before it.

For the foregoing reasons, we affirm the court's order related to the modification and termination of maintenance in this case.

In Amir H. Sanjari v. State of Indiana , a 23-page opinion, Judge Crone concludes:
In sum, we conclude that the trial court acted within its discretion in determining that Sanjari had waived his right to be present at trial and in denying his October 29, 2009 motion for continuance. We vacate his conviction and sentence on Count II due to double jeopardy constraints and affirm his conviction and five-year sentence on Count I, with fines, costs, and restitution.
Company v. Review Board

T.L. v. Review Board

NFP civil opinions today (1):

Paternity of C.F.; R.M. a/k/a R.K. v. R.F. (NFP)

NFP criminal opinions today (13):

David Martinez Zarate v. State of Indiana (NFP)

Juan Salazar-Arvisu v. State of Indiana (NFP)

Anthony A. Coffey v. State of Indiana (NFP)

William T. Sexton v. State of Indiana (NFP)

Robert W. Gard v. State of Indiana (NFP)

Michael J. Huffman v. State of Indiana (NFP)

William E. Cathey v. State of Indiana (NFP)

Candace Brewer v. State of Indiana (NFP)

Donald R. Tweedy v. State of Indiana (NFP)

David Alan Davis v. State of Indiana (NFP)

Michael Todd Hughes v. State of Indiana (NFP)

James E. McGee v. State of Indiana (NFP)

Kenneth L. Duckworth, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 11, 2011
Posted to Ind. App.Ct. Decisions

Courts - Look forward to improved federal district court websites

Tony Mauro has the report at the Blog of Legal Times, headed "Makeover Urged for Federal Court Web Sites." A quote:

One of the biggest complaints, Hornby said, is difficulty in finding court opinions on district court sites. Some direct viewers to PACER, others send them to CourtWeb, others have a page on "opinions of interest," some are hopelessly out of date, while still others offer not a clue about how to access an opinion from that court. According to the memo, the E-Government Act requires giving access to "the substance of all written opinions issued by the court" in a searchable format.

"More and more people are learning about the courts remotely from their PCs or laptops," said Hornby, who has also lamented the decline in news coverage of courts as traditional media cut back. Making court web sites as user-friendly as possible helps the public and press interact with the courts. As his memo states, "Inaccurate, out-of-date, or inaccessible website content is a disservice to the judiciary and to site users."

Here is a link to the memo sent to the district courts.

Posted by Marcia Oddi on Friday, February 11, 2011
Posted to Courts in general

A Teaching Moment - A Seminar on Judicial Selection

A great semester-long seminar now in progress at IU Law-Indianapolis focuses on the judicial selection process. It explores the various methods for selecting judges throughout the United States, including lifetime appointments in the federal system, partisan and non-partisan elections in state courts, and the various iterations of merit selection. The course also addresses the interplay of selection and retention methods on judicial independence.

A look at the Course Outline shows that it features a number of luminaries, including retired NY Supreme Court Chief Justice Judith Kaye as well as Ted Boehm and Jim Bopp. (CJ Kaye's lecture is open to the entire law school community.)

The course is being taught by Professor Joel Schumm and Judge Tim Oakes. Tomorrow afternoon at about 3:30 PM (Sat., Feb. 12th), both will appear on Carl Brizzi's WIBC radio show.

The Feb. 15 entry on the Course Outline, "We the People or We the Courts? (1:30-4:30 at Martin University)" is an open CLE seminar - read the details here.

Prof. Schumm has promised to put together a list of reading assignments for the course, with links, as well as "links to several YouTube clips on confirmation hearings, campaign ads, etc. that we have shown in class."

Posted by Marcia Oddi on Friday, February 11, 2011
Posted to A teaching moment

Ind. Law - "HJR 6 would add to the state constitution not only the marriage ban but also a ban on anything "substantially similar" to marriage"

Updating this ILB entry from Feb. 8th, Heather Gillers reports today that:

Indiana's proposed constitutional ban on same-sex marriage is poised to become one of the stricter bans in the nation after lawmakers voted Thursday [on second reading] not to take out a clause prohibiting civil unions. * * *

It would add to the state constitution not only the marriage ban but also a ban on anything "substantially similar" to marriage.

Civil unions are not allowed in Indiana, and the ban on "substantially similar" arrangements would not change that.

Preserving that authority was one goal cited by supporters of the amendment, proposed by Rep. Terri Austin, which would strike out the "substantially similar" language.

"I simply ask you to vote not only with your head, but also with your heart," Austin, D-Anderson, told lawmakers. "I think we can uphold the institution of marriage and still protect fundamental rights that people who may live, believe and love differently than we do are entitled to."

Supporters of the ban also have said the "substantially similar" clause would not affect the rights of unmarried couples or stop private companies from giving gay employees health benefits that cover their partners. But opponents worry that all kinds of arrangements -- from health plans to wills -- could be affected.

Of about 30 states with constitutional bans on same-sex marriage, about 20 also have constitutional bans on civil unions.

Some opponents also were concerned that courts would be tasked with defining "substantially similar."

Posted by Marcia Oddi on Friday, February 11, 2011
Posted to Indiana Law

Ind. Law - "Indiana Senate panel OKs bill saying life begins at conception"

So reports the AP, here. This is SB 358 - see the earlier story here. Today's story begins:

Doctors would be required to tell women seeking an abortion in Indiana that human life begins at conception and a fetus might feel pain at or before 20 weeks under a proposal approved Wednesday by a Senate health committee.

The Senate Committee on Health and Provider Services' 7-2 vote sends the bill to the full Senate, which approved tighter informed consent legislation in recent years that didn't advance in the Democratic-controlled House. Supporters believe the bill has a better chance this year because Republicans now have a 60-40 majority in the House and a wider majority in the Senate thanks to wins during the November elections.

The bill would also require women seeking an abortion to be told in writing that the procedure had the potential risk of causing infertility and could increase the risk of breast cancer. The committee's Republicans turned down efforts by Sen. Vi Simpson, D-Bloomington, to change the bill to recognize that medical experts differ on such risks. * * *

The bill also would require doctors performing abortions to have admitting privileges in a nearby hospital. Supporters said that would improve patient safety, but opponents said it was aimed at restricting women's access to abortions.

Posted by Marcia Oddi on Friday, February 11, 2011
Posted to Indiana Law

Ind. Gov't - More on: Bill would allow CWIP for nuclear plants, much more [Updated]

The AP is reporting today that SB 251 has been reported out of committee, 6-2. See earlier entry here.

[Updated] "Bill pushing nuke and coal-fired plants gets green light: Over an outcry, Senate panel passes bill encouraging coal-fired and nuclear power plants" was the headline of this Feb. 11, 2011 Star story by John Russell. Some quotes:

Despite strong opposition from environmentalists, senior citizens and consumer groups, an Indiana Senate committee on Thursday endorsed legislation that encourages the construction of coal-fired and nuclear power plants in Indiana and would allow utilities to quickly recover certain costs from customers.

The wide-ranging measure, supported by major utilities across Indiana, passed the Senate Utilities and Technology Committee along party lines after three hours of heated discussion. Six Republicans, including Chairman Jim Merritt of Indianapolis, voted in favor, and two Democrats voted against. The bill now moves to the full Senate for consideration. * * *

More than a dozen organizations showed up to oppose the measure, including environmentalists, large industrial customers, wind power advocates, the AARP and consumer groups.

Many said the bill would raise the cost of electricity to customers and would shift the risk of building traditional power plants from the utility companies to customers. They also said Senate Bill 251 would give incentives to utilities to do what they are already doing: investing in coal plants at the expense of renewable-energy projects such as wind, solar, biomass and water. * * *

The Indiana Cast Metals Association, which represents foundries across the state, said the bill allows too many "trackers," or mechanisms that allow utilities to automatically pass along the cost of federal mandates without sufficient oversight from the Indiana Utility Regulatory Commission. * * *

"You want power. It's not going to fall out of the sky for free," responded Sen. Beverly Gard, R-Greenfield, one of the bill's authors. * * *

"You are merely shifting the risk to ratepayers," said Jack Wickes, an attorney at Lewis & Kappes, which represents dozens of large industrial consumers of electricity.

The Sierra Club's Hoosier chapter said the bill would take Indiana's energy policy in the wrong direction, encouraging traditional power plants at the expense of cleaner, renewable options.

"What you are doing is incentivizing business as usual," said Mike Mullet with the Sierra Club.

The bill also would provide incentives to build nuclear power plants in Indiana. There are no nuclear plants in the state, and the last one that was approved, Marble Hill in Southern Indiana, was abandoned during construction in the 1980s after running into huge cost overruns. * * *

The bill would also direct the Indiana Utility Regulatory Commission to "exercise all necessary caution" to avoid disclosing confidential information it receives from utilities to the public during rate cases or capital projects.

In recent months, several organizations, including The Indianapolis Star and Citizens Action Coalition, separately have filed open-records requests with the IURC, asking to see inspection reports on the construction of Duke Energy Corp.'s new power plant in Edwardsport, which has been plagued with cost overruns and delayed by accidents.

The IURC has denied the requests, citing state privacy laws on such reports. The new bill underscores the state's efforts to keep such information private.

Some consumer and environmental advocates on Wednesday urged the Senate to drop that requirement from the bill, but the committee kept it in.

"When you deal with regulated utility monopolies, transparency in the process is critical," said the Sierra Club's Mullet.

Posted by Marcia Oddi on Friday, February 11, 2011
Posted to Indiana Government

Ind. Law - More on: Gun bills on the move in the Indiana Senate

Updating this ILB entry from Jan. 25th, this brief story today reports that SB 411, "a proposal to bar companies from asking their employees about any guns they might be keeping in their cars while at work," as passed the Senate and moved over to the House.

Posted by Marcia Oddi on Friday, February 11, 2011
Posted to Indiana Law

Environment - More on "Supreme Court's Murky Clean Water Act Ruling Created Legal Quagmire"

Updating this Feb. 7th ILB entry, here is the second in a three-part NYT series on muddled federal wetland regulations. It is headlined "Cranberry Farmer, EPA Still Nose to Nose in 20-Year-Old Wetlands Fill Case," and reported by John McCardle.

Interesting Indiana-related quote:

Gary Baise served as EPA's first chief of staff and went on to work for the FBI and Department of Justice before going into private practice in the District of Columbia.
Bill Ruckelshaus of course was the first EPA administrator. Baise also served as Ruckelshaus' aid while he was Indiana House Speaker.

Posted by Marcia Oddi on Friday, February 11, 2011
Posted to Environment

Thursday, February 10, 2011

Ind. Gov't. - More on: The Indiana census data is in

Updating this entry from earlier today, if you are a techie you can now download all the Indiana data here.

Otherwise, start here - the Indiana data is available here too but not as a bulk download.

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Indiana Government

Ind. Courts - Henry Superior Court Judge Peyton recovering

Elizabeth Lundblad reports in the New Castle Courier Times:

As Judge Michael Peyton remains hospitalized, a senior judge has been appointed to take over his bench in the interim.

Currently, Peyton's bench is being supervised by Senior Judge Joel Roberts, according to clerks in the Henry Superior Court 1 office.

Peyton, who presides over Henry Superior Court 1, is being treated at Methodist Hospital in Indianapolis for a ruptured aneurysm that occurred on Sunday, Jan. 23.

Peyton's recovery is advancing, but it's a slow process, according to a Web page set up by Peyton's family to keep friends and family updated. * * *

Despite being closed nearly all of last week, the Henry County courts report being fully operational and missed court dates have been rescheduled.

All hearings, pretrial conferences and trial dates have been rescheduled, according to clerks in the Henry Circuit Court office.

On Friday, Feb. 4, Circuit Judge Mary Willis did open her courtroom for a limited amount of time to hear some scheduled cases, but otherwise the court was shuttered.

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Indiana Courts

Ind. Gov't. - The Indiana census data is in

The Gary Post Tribune reported this morning:

Indiana has received its census numbers, according to a release from the U.S. Census Bureau.

The numbers were sent to Gov. Mitch Daniels and the leaders in the Indiana General Assembly.

Data is usually then released to the public within 24 hours of the first information given. * * *

State Sen. Sue Landske, R-Cedar Lake, has said it will take about two weeks to put the information into their computers. Both the Indiana House and Senate will then have committees start to look at it to form proposed redistricting maps. They’ll both create bills that will act as any other bill. The deadline for completed redistricting is April 29.

Hmm, "two weeks to put the information into their computers." More likely, two minutes, IMHO.

The data for Indiana isn't up yet, but it will be available here, perhaps yet today, via a large zip file, that you can import into your own program.

This file, that you can read right now, tells how to load the data into an Access database. This "read me" file describes using the FTPs, which will "provides quick access for data users such as State Data Centers and news media who need to begin their analysis immediately upon data release." Others may choose to use American Fact Finder.

See also this Feb. 8, 2011 story by Maureen Hayden of CNHI, headed "Indiana may get head start on political mapmaking."

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Indiana Government

Ind. Courts - "Putting toxicology errors on trial"

Updating this ILB entry from Feb. 7th, Mark Alesia and Tim Evans of the Indianapolis Star have a story today about the potential impacts of the flawed results from state toxicology lab.

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Indiana Courts

Ind. Courts - "Under the First Amendment, can states prohibit judicial candidates from personally soliciting campaign contributions?"

Michelle Olsen of Appellate Daily, has a post today on a circuit split -- some quotes:

Under the First Amendment, can states prohibit judicial candidates from personally soliciting campaign contributions?

Last summer, the U.S. Court of Appeals for the 7th Circuit said yes (twice), upholding Indiana and Wisconsin rules. The 6th and 8th Circuits said no, invalidating Kentucky and Minnesota rules, albeit with different results. Two of these cases have already caught the Supreme Court’s attention. * * *

The Supreme Court has already shown initial interest in the 7th Circuit cases. When Indiana and Wisconsin waived their opportunity to oppose petitions filed, the Court requested responses. While “Response Requested” does not equal “Petition Granted,” it does mean that a petition has at least survived weeding level one, where thousands of others are rejected.

Although the Court is scheduled to consider both 7th Circuit petitions in its February 18th conference, at least one will be relisted for a later date. Just this week, the Court extended Wisconsin’s response deadline to April 1st. Indiana has already filed its response, but postponing conference for both cases seems likely, since the Court synchronized them before.

The final item in the Jan. 31, 2011 issue ($$) of Indiana Legislative Insight read:
The Supreme Court of the United States will consider the writ of certiorari requested in Bauer v. Shepard, No. 10-425, the Indiana judicial free speech case, at its conference on February 18. As we've told you, the State opposes the attempt to have the case heard by the Supremes.
Here is a list of some earlier ILB entries on Bauer v. Shepard.

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides student loan bankruptcy case

In In re Busson-Sokolik, an 8-page decision, Judge Bauer writes:

This case comes to us as a direct appeal from the Eastern District of Wisconsin’s decision to affirm findings of the United States Bankruptcy Court for the Eastern District of Wisconsin. The courts below found: (1) that a $3,000 student loan which Dustin Busson-Sokolik received from the Milwaukee School of Engineering (“MSOE”) in 1999 was a nondischargeable debt under the United States Bankruptcy Code, and (2) that the school was entitled to collection costs and attorney’s fees in connection with the bankruptcy proceedings pursuant to the promissory note for the loan signed by Busson-Sokolik. The district court also: (1) denied a motion for sanctions against the school, and (2) imposed sanctions against Busson-Sokolik and his attorney, Chomi Prag. Busson-Sokolik and Prag appeal each of these determinations. After reviewing the district court’s application of the Bankruptcy Code de novo and the underlying factual findings in the case for clear error, we affirm. As to the district court’s imposition of sanctions against Busson-Sokolik and Prag, while we do not find any abuse of discretion in the court’s decision to impose sanctions in this case, we do find the amount of the sanctions assessed to be excessive and therefore hold that the sanctions be reduced by half.

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In Christine and Ivan Kolozsvari v. John Doe, M.D., Jane Doe, R.N., Kelley Branchfield, R.Ph., and Hook SuperX, LLC, a 12-page opinion, Judge Bailey writes:

Christine Kolozsvari (“Christine”) and Ivan Kolozsvari (“Ivan”; collectively, “the Kolozsvaris”) appeal from the trial court’s grant of summary judgment against them and in favor of Kelley Branchfield, R.Ph., (“Branchfield”) and Hook SuperX, LLC (“CVS”). The Kolozsvaris raise one issue for our review, whether the trial court erred when it held that pharmacists have no duty to warn of the side effects of prescribed medications, and therefore determined that Branchfield and CVS were entitled to judgment as a matter of law because they owed no duty either to warn Christine of the side effects of a medication Branchfield filled or to refuse to fill the prescription. We reverse and remand for further proceedings. * * *

While we address whether CVS and Branchfield owed a duty of care to withhold or warn Christine about the potentially significant adverse effects of OsmoPrep under the facts of this case, our decision today reaches no further.

In Beneficial Indiana, Inc. v. Joy Properties, LLC, a 10-page opinion, Judge Darden writes:
Beneficial Indiana, Inc. (“Beneficial”) appeals the trial court’s order to the Allen County Treasurer and the Allen County Auditor (collectively, “the Auditor”) that it disburse to Joy Properties I, LLC, (“Joy Properties”) the surplus funds from the tax sale of real estate designated as Property PIN 020817401013000072 and commonly described as 3909 Castell Drive, Fort Wayne (“the real estate”). We reverse. * * *

We find that the facts here establish that Beneficial has a more substantial interest in the real estate, and that equity requires disbursement of the tax surplus funds to Beneficial. Therefore, the trial court erred in ordering disbursement to Joy Properties and we reverse.

In Nexus Group Inc. v. Heritage Appraisal Service and Alan Landing, a 10-page opinion, Judge Baker writes:
Appellant-plaintiff Nexus Group, Inc. (Nexus), appeals the trial court’s order granting summary judgment in favor of appellees-defendants Heritage Appraisal Service and Alan Landing (collectively, Heritage). Nexus argues that the trial court erroneously concluded that Nexus’s defamation action against Heritage is barred by the anti-SLAPP statute and that there are genuine issues of material fact precluding summary judgment. Finding that summary judgment was properly entered and that appellate attorney fees are warranted pursuant to the purpose of the anti-SLAPP statute, we affirm and remand for a hearing on appellate attorney fees.
NFP civil opinions today (3):

Charles E. Justise, Sr. v. Terry Huston, et al. (NFP)

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

Rextori Pizza, et al. v. Dutch Mill Plaza, LLC (NFP)

NFP criminal opinions today (9):

Ernest Smith v. State of Indiana (NFP)

Willie G. Pargo v. State of Indiana (NFP)

Charles Durham v. State of Indiana (NFP)

Stephan D. Parks v. State of Indiana (NFP)

Daniel A. Demaree v. State of Indiana (NFP)

Douglas Alan Baker, Jr. v. State of Indiana (NFP)

James McMahon v. State of Indiana (NFP)

Michael A. Thompson v. State of Indiana (NFP)

L.P v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Killbuck Concerned Citizens Association v. J.M. Corporation and Ralph Reed, a 6-page, 5-0 decision, Justice Sullivan writes:

In 1981, Madison County zoning authorities granted a special use permit to J.M. Corpo-ration (“JMC”) to establish a landfill. Over the intervening decades, JMC has engaged in substantial construction of the facility but has not been able to obtain an operating permit from environmental authorities. On March 24, 2008, the Legislature passed a law applying only to facilities for which a county zoning permit had been approved before April 1, 1985. The law provided that any such “facility . . . that did not accept waste before April 1, 2008[,]” had to return to the county zoning authorities for a new permit. Ind. Code § 13-20-2-11 (Supp. 2008). Because JMC's facility did accept waste before April 1, 2008, the new law does not apply to it. * * *

Although this Court has mandatory and exclusive jurisdiction over this appeal because of the trial court's ruling that the statute was unconstitutional [ILB - as a special law] , Ind. Appellate Rule 4(A)(1)(b), we refrain from deciding this case on that issue. Specifically, because we conclude that the statute does not apply to JMC, we find it unnecessary to and do not consider the constitutionality of Indiana Code section 13-20-2-11. * * *

We reverse the judgment of the trial court and remand for proceedings consistent with this opinion.

This case, concerning Mallard Lake, was argued before the Supreme Court on Sept. 9, 2010, in a direct appeal. Here is the description posted by the Court at the time:
9:00 AM - Killbuck Concerned Citizens Assoc., et al. v. J.M. Corp., et al ( 48S00-1003-PL-158) - The Madison Superior Court ruled that IC 13-20-2-11, which relates to landfill permits, was unconstitutional and entered summary judgment for the owners, Appellees J.M. Corporation and Ralph Reed. In this civil direct appeal, nearby residents assert the trial court erred in declaring the statute unconstitutional and should have entered summary judgment for them. Appellees also raise several cross-appeal issues relating to the statute.

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Greenwood annexation timing creates ripples: It may not happen in time for new residents to vote, run for office"

This long story today by Diana Penner of the Indianapolis Star includes:

The Indiana Supreme Court's resolution last week of an annexation dispute between Greenwood and Bargersville appears to mean some folks will become new residents of Greenwood.

However, the legal and bureaucratic processes might not be wrapped up in time for those new residents to vote in the May municipal primary -- and almost certainly not in time for them to run for a city office to represent their interests.

The Indiana Supreme Court resolved the case involving about 1,800 acres along Ind. 135 -- much of it prized commercial property and some of it agricultural land. People also live there, including 751 registered voters. * * *

Four of the highest court's five justices heard oral arguments Jan. 20, but they could not agree and essentially ended the case as a hung jury, on a 2-2 vote. That ruling maintains the appeals court's decision.

The appeals court must certify the case and send it back to Milligan, who is then supposed to write a new order in line with the appeals court decision that reversed him.

As of Monday, Milligan said, he had not received certification of the order. In any event, after he does, he expects to call a conference of all lawyers involved.

That's almost certainly not going to happen in time for the noon Feb. 18 deadline for filing for candidacy in the May 3 primary, Milligan said.

"If it's up in the air now, it will continue to be up in the air" by that date, he said.

The ILB notes that the Court of Appeals docket indicates the case was certified February 1, 2010. See this list of earlier ILB entries on the dispute.

And here, from the end of the COA docket, 41 A 05 - 0912 - CV - 00684:

9/22/10 ***********TRANSMITTED ON TRANSFER 09/22/10***********
ENTERED ON 09/22/10 AB
12/10/10 CASE TRANSFERRED TO THE SUPREME COURT
SUPREME COURT CAUSE NUMBER 41S051012CV00666
2/01/11 ***************OPINION CERTIFIED***************
ENTERED ON 02/01/11 ED

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Law - More on "Sentencing shift worries counties"

Updating yesterday's lengthy ILB entry, here are some quotes from a story from Missouri, via the Sentencing Law & Policy Blog:

[Missouri Chief Justice] Price said in his speech that he, Gov. Jay Nixon, Speaker of the House Steve Tilley and Sen. Rob Mayer, the president pro tem of the Senate, have signed a letter seeking a federal grant to study alternatives to incarceration in Missouri.

Last year, Price's words spurred legislative action. Lawmakers worked hard on a plan to close one prison and divert prisoners to drug courts, though the effort ultimately failed. The Legislature did, however, add to DWI courts, in part a response to Price's speech and a Post-Dispatch series about the failure of DWI laws in the state. "This prison based strategy is not working and it is costing us an arm and a leg," Price said.

This year, though, the words seem destined to fall on deaf ears. Gov. Jay Nixon has already indicated he doesn't support an effort to close a prison. And a Senate committee studying judicial issues ignored the concept in meetings early in the session.

Some quotes from a story today by Maureen Hayden of CNHI that concludes:
The sentencing reform bill has strong support from Statehouse leaders, including Gov. Mitch Daniels and Indiana Supreme Court Chief Justice. It’s based on work done by the Council of State Governments’ Justice Center, a prison policy group, in partnership with the Pew Center on the States Public Safety Performance Project.

Their study, released last year, found that Indiana’s prison count had grown by 41 percent between 2000 and 2009. The increase was caused not by violent criminals, but by low-level, nonviolent criminals committing drug and property crimes, according to the study.

The study also found that Indiana’s criminal sentences were harsher than other states.

Those conclusions were cited by Jon Ozmint, the former head of the South Carolina prison system who helped spearhead a sentencing reform movement in his state.

“We will lock you up for pretty near anything in South Carolina,” Ozmint said. “But you’re locking up folks even we don’t lock up.”

That kind of criticism drew appreciation from supporters of the bill, including State Budget Director Adam Horst, who vowed to work with legislators to find the funding to support the reform initiatives that would shift costs away from the state and back to local communities.

But it didn’t please many of the local prosecutors at the hearing, unhappy that they’ve been accused of being obstructionists. In December, the board of the Association of Indiana Prosecuting Attorneys voted to oppose the portion of the bill that would shorten sentences for some drug crimes. They’ve also insisted that the sentencing reform bill increase the actual amount of time that violent offenders serve by reducing or eliminating credits earned for early release.

“We’re all in agreement that there needs to be reform,” Henderson said. “We’re just concerned that this is not comprehensive reform.”

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Indiana Law

Ind. Courts - More on "Cell phone lockers approved for Porter County courthouses"

Updating this ILB entry from Jan. 8th, the NWI Times has an editorial today that begins:

The Porter County commissioners are buying lockers for each entrance to the county courthouse so visitors can safely secure their cell phones. That's convenient for visitors, but it's time for a discussion bound to be inconvenient for Indiana's judges.

What's really needed is another look at how the courts restrict technology that could easily be used to disseminate information on proceedings there.

Rule 2.17 in the Indiana Code of Judicial Conduct prohibits judges, except with the prior approval of the Indiana Supreme Court, from using cameras in the courtroom during trials. And because today's cell phones come equipped with cameras, Porter County's judges won't even allow them in the courthouse.

Times change, however. The Indiana Supreme Court has been taking some important steps toward transparency and efficiency in court administration. It is phasing in a court records management system throughout Indiana that will make it easier to look online for information about individual cases, for example. And the Supreme Court allows cameras at some of its proceedings.

Now it's time to revisit the ban on cameras and other technology in the courtroom and environs.

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Indiana Courts

Law - Hearing on Utah's copycat immigation bill postponed because of $11 million price tag

Read the story here.

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to General Law Related

Ind. Law - "Senate panel passes bill to crack down on illegal immigration"

Mary Beth Schneider has a lengthy report in this morning's Indianapolis Star. Some quotes:

After more than four hours of sometimes emotional testimony, a Senate committee late Wednesday approved a bill that would require state and local police to enforce federal immigration laws.

Those who back Senate Bill 590, which is modeled on a controversial Arizona law, argued that the federal government has failed to do its job, leaving the nation vulnerable to terrorists and criminals and forcing states to spend millions of tax dollars to educate illegal immigrants and provide them with health care and other services.

And, several supporters said, employers are taking advantage of illegal residents, giving them jobs for lower wages and taking work away from citizens.

Those who oppose the bill argued that an Arizona-style law would lead to racial profiling, with police asking people -- based on their skin color, broken English or a foreign-sounding name -- to prove they are here legally.

Opponents also said the bill would have staggering costs: millions to enforce federal law and house those arrested, millions to defend the law from likely court challenges, and millions in lost economic development when the state becomes known as one that doesn't welcome foreigners.

The bill now goes to the Senate Appropriations Committee for consideration, because it is expected to cost the Indiana State Police as much as $5 million a year to enforce.

Here is Eric Bradner's story from the Evansville Courier & Press. A quote:
Jose D. Salinas, a Marion County Superior Court judge, said he is afraid the bill, if it becomes law, would unfairly burden Hispanics.

"If Gov. (Mitch) Daniels doesn't have to answer that question and Sen. Delph doesn't have to answer that question, then why should I? I was born in this country. I have worked my way up to where I am now," he said.

"You don't know what that feels like, and you don't know how that demeans a person."

Angela Adams, an immigration law attorney at Lewis and Kappes, P.C., in Indianapolis, said there should be more legal avenues to enter the United States, so that backlogs of five to 15 years do not exist.

"You can't stay; you can't go; and, on top of that, you can't get here to see a family member," she said.

"So, they resort to other measures, like crossing the border without inspection."

That, she said, is why the problem should be handled on a national level.

"Do we want to be the next Arizona?" she asked. "I don't think we do."

Kevin Allen reports in the South Bend Tribune:
Goshen Police Chief Wade Branson said S.B. 590 would amount to an unfunded mandate, because police departments would have to hire more bilingual officers and train officers on the complexities of immigration laws. He also fears it would scare some Latinos from helping police solve crimes.

"At the street level, we must be trusted in order to get good information to solve local crimes," Branson testified. "If undocumented residents fear detention and deportation, it will be impossible for us to adequately do the job we do now. Crimes will go unreported, and unreported crimes can't be solved."

Members of veterans groups and Mike Cutler, a retired Immigration and Naturalization Service agent, urged the committee to approve the bill from the standpoint that it will help protect the nation from terrorists. Robert Najmulski, a field representative with the Federation for American Immigration Reform, testified that illegal immigration costs Indiana more than $600 million annually, according to FAIR estimates.

Representatives of business groups and farmers said they don't condone hiring illegal immigrants, but they spoke against S.B. 590 because of potentially burdensome regulations associated with it and the possibility that it will prevent legal immigrants from coming to Indiana.

Indiana Attorney General Greg Zoeller said earlier Wednesday that he is not endorsing S.B. 590.

"While I understand the significant problems and deep frustration felt by our sister states," Zoeller said in a statement, "we must be realistic about the costs of the state superimposing itself onto a federal enforcement responsibility when the methods for doing so might be constitutionally suspect or fiscally impractical."

Sen. Karen Tallian, D-Portage, was the only committee member who voted against S.B. 590 on Wednesday.

Here is the Indiana compact signed by AG Zoeller and "religious, business and education leaders [who have endorsed] a pact that says immigration should be reformed at the federal level, not the state."

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Indiana Law

Ind. Gov't. - "A Muncie man who pleaded guilty -- but mentally ill -- in a 2005 attack has received no treatment or counseling of any kind during his more-than-four years in prison."

Douglas Walker has the story today in the Muncie Star-Press. Some quotes:

MUNCIE -- A Muncie man who pleaded guilty -- but mentally ill -- in a 2005 attack on a fellow Central High School student has received no treatment or counseling of any kind during his more-than-four years in prison. * * *

"It's ridiculous," Delaware County Prosecutor Jeffrey Arnold said Wednesday of the Indiana Department of Correction's handling of Marlett. "The system has failed us."

Marlett pleaded guilty but mentally ill to criminal confinement in August 2006. He was at first sentenced to 20 years in prison by Special Judge Peter Haviza of Randolph County, but that term was later reduced by five years by the Indiana Court of Appeals, which ruled the Muncie teen's crime did not "fall within the 'worst' class" of crimes warranting a maximum sentence.

The Muncie man is now scheduled to be released from prison in a little more than two years, on March 25, 2013.

He was back in town last week, however, for a hearing on his bid for still another sentence reduction.

But since that long-pending request was made in 2008, the attorney who filed it had asked to withdraw from the case, noting in part that her client had received no mental health treatment in prison.

Her client "underwent a psychological examination when he first entered the (Indiana Department of Correction)," attorney Cara Wieneke wrote, and a DOC doctor "concluded that treatment, either therapeutic or medicinal, was not necessary."

A more recent report officials at the Putnamville Correctional Facility sent to Judge Haviza confirmed Marlett "has not participated in any mental health treatment" while in prison and "has not completed any counseling programs." * * *

In her motion to withdraw, attorney Wieneke wrote that her client "does not believe he can handle the stress involved in studying for and obtaining his GED."

Arnold, who also participated in the Feb. 4 hearing, on Wednesday questioned how a person unable to cope with the stress of a GED course is going to handle life outside the structure of prison.

"He can't control himself in certain situations," the prosecutor said. "I have grave concerns that he might hurt somebody when he gets out."

Arnold said he believed Marlett had persuaded DOC examiners he didn't need treatment or counseling because he didn't want to be housed with other mentally ill inmates.

"The system's broke," he added.

Haviza last week denied the motion for a sentence modification. He also granted Wieneke's request to withdraw from the case.

In an earlier order, the judge had said he was willing to consider a sentence reduction based on Marlett's "youth and lack of a previous record."

However, the judge also acknowledged he had hoped the treatment or counseling he anticipated Marlett would undergo would both "lessen (the) likelihood" of future crimes and provide Haviza with "better guidance regarding possible early release."

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Indiana Courts | Indiana Government

Courts - "Court Holds that Data About Car Speed and Brake Usage Stored in Car’s Computer Protected by Fourth Amendment"

Orin Kerr of the Volokh Conspiracy has posted an entry that begins:

A California appellate court has handed down a fascinating opinion today in State v. Xinos on whether and how the Fourth Amendment regulates government access to data stored in a car’s internal computer that controls the airbags and seatbelts. After a fatal car accident, the police downloaded the data from the impounded car and used it to help reconstruct the accident and convict the driver of vehicular manslaughter.

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Courts in general

Ind. Law - "Bill to delay accident report access: General public now can buy records online"

Updating this ILB entry from Feb. 9th, about SB 84, the Richmond Paladium Item today has a story by Pam Tharp, reading "General public now can buy records online."

Accident reports may be ordered online for $12 apiece; only after you pay can you can download a copy of the pubic record.

The ILB doesn't think the public should have to pay anything to obtain a copy of a public record. Accident reports, death certificates, whatever, and whether at a governmental agency office, or online (which incidentally makes it more convenient for both the agency and the requester.) These are public records.

At the other end of the spectrum is SB 84, which would limit your ability to access an accident report for 90 days, with specific exceptions, whether online or in person from the police department. Onerous conditions (which may make infeasible fulfilling the request online) are placed even on the accident victim in obtaining the public record, including:

(1) A valid driver's license or other government issued photographic identification.
(2) Proof of status or identification that demonstrates the person's qualifications to access the information.
(3) Except as provided in section 6 of this chapter, a written sworn statement stating that information from the accident report will not be:
(A) used for any commercial solicitation of accident victims; or
(B) knowingly disclosed to any third party for the purpose of commercial solicitation of accident victims;
for ninety (90) days after the completion date of the report.
Excepted, with no conditions, is: "(D) An insurance carrier of a person involved in the accident to which the person has submitted a claim arising from the accident, or a person under contract with the insurer to provide claims or underwriting information."

From the story:

[Senator] Leising said she was approached by insurance industry representatives about a bill because of the increase in fraudulent insurance claims. Accident victims often are overwhelmed with calls and contacts, Leising said. Some are from unscrupulous professionals encouraging victims not to settle claims or urging them to submit to more medical tests, increasing insurance costs for everyone, she said.

"We don't see this in rural areas, but it's occurring in cities," Leising said. "We have people who work in the Statehouse who have had accidents and had six contacts by the next morning." * * *

[The Hoosier State Press Association] is opposed to a public policy that seeks to correct bad behavior by limiting public record access, said Steve Key, HSPA executive director and general counsel.

"Instead of imposing penalties on improper behavior, the bill seeks to limit public records that have been available from the beginning," Key said. "We feel it's just bad public policy to make records secret when what they want to do is correct bad behavior."

The Indiana Supreme Court in October issued a rule that prohibits attorneys from directly soliciting accident victims, either by mail or Internet, for 30 days after an accident, Key said. Medical associations could take the same stance against their members, he said.

Key is also concerned a confidentiality period in which records can't be accessed could deny victims needed legal advice, which might benefit insurers.

"The four people who testified in favor of the bill last week were all insurance company representatives," Key said.

Leising said she was surprised to learn Indiana accident reports were available online.

"Who would think a good, conservative state like Indiana would have its accident reports online?" Leising asked. "We're going to press forward with this. If the chair agrees to the amendment, we hope to get it out of committee."

Posted by Marcia Oddi on Thursday, February 10, 2011
Posted to Indiana Law

Wednesday, February 09, 2011

Ind. Decisions - Tax Court posts one today

As noted in this ILB entry from Jan. 19, 2011, Judge Martha Wentworth is already hard at work, although her formal robing ceremony won't be until March 8, 2011. Today she has posted her first opinion. Apparently following the tradition of her predecessor, Judge Fisher, Judge Wentworth's opinion was posted on the day after it was issued.

In Indiana Dept. of State Revenue, Inheritance Tax Division v. In the Matter of the Estate of Deloras J. Biddle, a 6-page opinion, Judge Wentworth writes:

The Indiana Department of State Revenue, Inheritance Tax Division (Department) appeals the Knox Circuit Court’s (probate court) order determining that the Estate of Deloras J. Biddle (Estate) did not owe Indiana inheritance tax and was therefore not required to file an Indiana inheritance tax return. The issue before this Court is whether the probate court erred in making that determination. * * *

On appeal, the Department argues that the probate court erred when it determined that the Estate was not required to file an inheritance tax return because the checks issued by MetLife to Fine were life insurance proceeds and not annuity contract payments. The Court agrees.

On its face, the evidence in this case does not support the probate court’s conclusion that the payments received by Fine from MetLife were life insurance proceeds. Indeed, the checks clearly state that they were “proceeds from [an] annuity contract[.]” Because the probate court has provided no reasoning, nor has it cited to any other evidence, which would support its conclusion that the MetLife payments to Fine were life insurance proceeds, its judgment is REVERSED.

CONCLUSION. The probate court erred when it determined that the Estate was not required to file an inheritance tax return because the Metlife payments were life insurance proceeds and therefore not subject to Indiana’s inheritance tax. Accordingly, the matter is REMANDED to the probate court with instructions to order the Estate to provide a copy of the subject MetLife contract(s) so that it may be determined whether the Estate was indeed required to file an Indiana inheritance tax return and remit inheritance tax on the transfers to Fine.

Posted by Marcia Oddi on Wednesday, February 09, 2011
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme Court issues one this afternoon

In Noe Romo v. State of Indiana, a 7-page, 5-0 opinion, Justice Dickson writes:

In the defendant's trial on three counts of Dealing in Cocaine or Narcotic Drugs, a class A felony, the evidence included an English language translation transcript of clandestinely recorded conversations in Spanish between the defendant and a police informant during the commission of the offenses. The jury found the defendant guilty on all charges, and the trial court entered judgment and sentenced accordingly. The Indiana Court of Appeals affirmed. Romo v. State, 929 N.E.2d 805 (Ind. Ct. App. 2010). We granted transfer and now affirm the convictions, holding that written English translations of foreign language recordings may be admitted as substantive evidence and that the recordings themselves generally should be admitted and played as well, but that, under the circumstances presented here, the failure to play the Spanish recordings is not reversible error.

Posted by Marcia Oddi on Wednesday, February 09, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Groups join in "Indiana Compact" to oppose proposed immigration bill

Troy Kehoe of WISH TV reported this morning:

Under Senate Bill 590, filed by Senator Mike Delph (R-Carmel), police officers across the state would be required to ask for proof of citizenship or immigration status if they suspected someone was in the country illegally. Like Arizona's law, the bill also includes tougher penalties for employers who knowingly hire illegal immigrants, and would recognize English as the state’s official language.

Following the national debate over Arizona’s law last spring, Senator Delph told 24 Hour News 8’s Jim Shella that reform is long overdue. He believes immigration is an issue that should be dealt with by the federal government, but says he’s ready to act if they won’t.

"I believe Arizona’s law is constitutional, because the federal government isn’t acting. We need people like Senator Lugar to step up, show some spine, and enforce the rule of law. In the absence of federal leadership, then absolutely--states like Arizona and Indiana need to step in the gap for the taxpayer,” Delph said.

But, others fear Indiana’s proposed measure would lead to racial profiling.

This afternoon Mary Beth Schneider of the Indianapolis Star writes:
Indiana Attorney General Greg Zoeller joined religious, business and education leaders today in endorsing a pact that says immigration should be reformed at the federal level, not the state.

The signing of the "Indiana Compact" by Zoeller and the others comes on the same day that a Senate committee will debate a wide-ranging bill to crack down on illegal immigration. The bill is similar to a controversial law in Arizona, now being challenged by the federal government. * * *

The hearing on that bill, Senate Bill 590, is at 3:30 p.m. in the Senate chamber. * * *

The compact was signed at a Statehouse event this morning. Among other backers are Catholic Archbishop Daniel Buechlein, Rabbi Dennis Sasso, Butler University President Bobby Fong, Marian University President Daniel Elsner, and numerous groups including the Indiana Chamber of Commerce, the Indiana Farm Bureau, the Indiana Bankers Association and the Indiana Conference of the United Methodist Church.

ILB note: Zoeller appears to be taking an active role in legislation this session. Monday, as reported by Heather Gillers of the Indianapolis Star, he went on record supporting the HJR 6, the anti-gay-marriage resolution:
Attorney General Greg Zoeller submitted a letter supporting the resolution and committing to defend a constitutional ban against legal threats.

Posted by Marcia Oddi on Wednesday, February 09, 2011
Posted to Indiana Law

Ind. Gov't - Bill would allow CWIP for nuclear plants, much more

The bill is SB 251, introduced as a vehicle "concerning labor and safe," assigned to Senate Rules, and the digest and action list tell the rest of what happened on Feb. 7th: Committee report: amended, reassigned to Committee on Utilities & Technology; Senator Long removed as first author; Senator Gard added as first author; Senator Merritt added as second author; Senator Hershman added as third author; Senator Boots added as coauthor. Chris O'Malley of the IBJ has the full story here.

Posted by Marcia Oddi on Wednesday, February 09, 2011
Posted to Indiana Government

Courts - "N.J. Supreme Court considers journalism shield laws in blogger case"

An interesting story dated Feb. 8th by MaryAnn Spoto of the Trenton NJ Star-Ledger begins:

In a courtroom on the eighth floor of the Richard J. Hughes Justice Complex in Trenton today, everyone agreed the internet has changed the face of news gathering and dissemination.

But they couldn’t agree on whether a blogger who wrote online about a New Jersey company involved in the pornography industry should have the same protections as working journalists in keeping their sources confidential.

In a case that could have far-reaching effects on the media, the state Supreme Court heard arguments on whether Shellee Hale, a blogger from Washington state, is protected by New Jersey’s so-called shield law, in her writings about Freehold-based Too Much Media Inc.

Posted by Marcia Oddi on Wednesday, February 09, 2011
Posted to Courts in general

Ind. Courts - Continuing with : "Evansville attorney, prosecutor candidate indicted on sex charges"

Updating this ILB entry from Dec. 15, 2010, Andrea Howe reported yesterday in the Princeton Daily Clarion in a story that begins:

PRINCETON — Gibson Superior Judge Earl Penrod has denied defense motions to suppress evidence and dismiss one charge in the case against Princeton attorney William R. Wallace III.

The judge issued the order Tuesday.

Wallace was indicted in June 2010 on charges of false informing, obstruction of justice, patronizing a prostitute and possession of child porn, and Special Prosecutor Jonathan Parkhurst filed a voyeurism charge in November.

Posted by Marcia Oddi on Wednesday, February 09, 2011
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues one this morning

In Indiana Dept. of State Revenue v. Belterra Resort Indiana, LLC, a 4-page opinion on a petition for rehearing, Justice Rucker writes:

In its petition for rehearing Belterra argues (a) this Court misapplied the “step transaction” doctrine, (b) even if the Court properly applied the doctrine conflicting factual inferences nonetheless preclude summary judgment in the Department’s favor, and (c) because the Tax Court entered summary judgment in favor of Belterra, it did not address the question of whether Belterra is subject to a tax penalty. We grant rehearing to address this latter argument. * * *

We are of the opinion that this issue is not ripe for review. The Indiana Tax Court was established to develop and apply specialized expertise in the prompt, fair, and uniform resolution of state tax cases. * * * [W]e remand this matter to the Tax Court to determine the timeliness of Belterra’s argument and if timely whether Belterra is subject to the penalty and if so whether the penalty should be waived.

We grant rehearing and modify our original opinion as set forth herein. In all other respects the original opinion is affirmed.

Shepard, C.J., and Sullivan and David, JJ., concur.

Dickson, J., concurs in result, believing that rehearing should also be granted to revisit the Court’s decision on the “step transaction” issue.

Posted by Marcia Oddi on Wednesday, February 09, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Sentencing shift worries counties"

That is the headline to Niki Kelly's story today in the Fort Wayne Journal Gazette. (BTW, the IndyStar had no story.) Some quotes:

Criminal justice experts warned Tuesday that a push to reform sentencing in Indiana could result in a flood of new expenses for counties.

Under the proposed legislation, counties would be forced to handle more misdemeanors and deal with increased probation responsibilities.

More than 100 prosecutors, judges and law enforcement officials showed up for a Senate hearing lasting hours on the proposal – a key part of Gov. Mitch Daniels legislative platform.

No vote was taken on Senate Bill 561.

Instead, Sen. Brent Steele, R-Bedford, author of the bill and chairman of the Senate corrections committee, said he would work on amendments for a vote next week.

The legislation’s goal is to contain Indiana’s exploding prison population, which is growing three times faster than in neighboring states, despite falling crime rates.

An analysis conducted by two national organizations found that much of the growth was driven by those who commit Class D felonies – especially those serving time for theft and drug crimes.

A Class D felony is the lowest-level felony and carries a maximum prison term of three years.

Prison sentences for those crimes are lengthier than in other states because Indiana generally doesn’t differentiate based on the quantity of drugs possessed or sold, or the value of the items stolen.

The report recommends revising Indiana law by implementing various gradations for the crimes.

This change would mean some Hoosier drug and theft offenders would be charged with lower-level felonies and misdemeanors and serve lighter sentences.

Read the rest of the story. Charles Wilson of the AP also has a story today. A quote:
While many of those who testified Tuesday said they supported the legislation's intent, some county prosecutors had more serious issues with the bill.

"At this time, all it is is a soft-on-crime, early release bill," Dearborn-Ohio County Prosecutor Aaron Negangard said ahead the hearing.

Negangard spoke on behalf of the Indiana Prosecuting Attorneys Council, which he said believes the bill goes too far in easing penalties for drug offenses.

"The reality is drugs drive crime," Negangard said, adding that prosecutors also want the bill changed to ensure that the time inmates spend in prison more closely aligns with the time to which they're sentenced.

The ILB has collected some earlier entries on this issue:[Updated] The Sentencing Law & Policy Blog today points to "Two editorials urging new directions for incarceration nation." The papers are the New York Times and Columbus Dispatch.

Posted by Marcia Oddi on Wednesday, February 09, 2011
Posted to Indiana Law

Ind. Courts - More on "Hoosier lawyers get waiting period before contacting victims"

Updating this ILB entry from Oct. 18, 2010, about the 30-day waiting period the Supreme Court imposed Jan. 1, 2011 on Hoosier lawyers before contacting accident victims or their families, the Indianapolis Star has an editorial today titled "Tow this bill to the scrap pile." Some quotes:

When two cars collide, it's not just a personal matter. It's also of public concern.

Taxpayers, for instance, who pay for police and other public safety personnel to respond, should be able to determine where and how their money is spent. If hazardous road conditions contributed to an accident, the public should be able to ascertain that information quickly. Organizations such as Mothers Against Drunk Driving also have a legitimate interest in tracking down accident information as soon as possible.

Yet, a bill that may receive a hearing this week in the Senate Insurance and Financial Institutions Committee would shut down public access to accident reports for 90 days. The legislation, Senate Bill 84, is a misguided attempt to stop attorneys and others from so-called "ambulance chasing."

The Indiana Supreme Court, however, already prohibits attorneys from contacting victims of accidents or natural disasters for 30 days. Extending that prohibition by another two months would smack of legislative overreach on an issue previously addressed and largely settled by the courts. * * *

It's telling that insurance companies have supported the proposal. They have a vested interest, of course, in heading off lawsuits stemming from traffic accidents. The bill, which excludes agents and other representatives of insurance companies from the 90-day ban, would give one side (an insurer) in a possible legal challenge a decided advantage over another (an attorney representing an accident victim).

No matter how well intentioned, SB 84 is an unnecessary, poorly aimed attempt to regulate the public's access to important information. It should be parked permanently in committee.

Posted by Marcia Oddi on Wednesday, February 09, 2011
Posted to Indiana Courts

Ind. Courts - Mandatory retirement age for trial court judges?

This Friday, February 11th, the Senate Judiciary Committee will meet at 9 am in Rm. 130, to hear several bills whose hearing was earlier postponed because of the weather. Among them is SB 463, mandatory retirement age for trial court judges.

On Jan. 3, 2011 the ILB ran an entry headed "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," quoting a Kokomo Tribune story that reported:

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.
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.

Here is another similar ILB entry from Sept. 4, 2006, quoting a South Bend Tribune story headed "Means, 77, to continue as judge: He says age is no barrier to doing his job." From the story:

Means has no mandatory retirement age to worry about in St. Joseph County.

There is a state-mandated retirement age of 75 for judges on the Indiana Supreme Court and Court of Appeals.

Many Indiana counties have a retirement age of 70 for Superior Court judges, according to Chief St. Joseph Superior Court Judge John M. Marnocha, president of the Indiana Judges Association.

But other counties, like St. Joseph, have no retirement age.

The requirement usually means a judge cannot begin a new term after reaching the specified age, Marnocha said. But if a judge reaches that age in the middle of a term, the judge can complete the term.

This is unlike the Indiana governing appellate court judges. With respect to Supreme Court justices and Court of Appeals judges, Article 7, section 11 of the Indiana Constitution includes this provision:
Every such justice or judge shall retire at the age specified by statute in effect at the commencement of his current term.
The age currently specified by statute (IC 33-38-13-8) is seventy-five:
(a) Every justice of the supreme court and judge of the court of appeals shall retire at seventy-five (75) years of age.
(b) Notwithstanding subsection (a), the supreme court may authorize retired justices and judges to perform temporary judicial duties in any state court.

(Or course, if you are president of Purdue or the Dean of IU Law, you must retire at age 65.)

Here are some other relevant ILB entries on judicial retirement age:

[More] Here are a couple notes from readers about judges' retirement.

Posted by Marcia Oddi on Wednesday, February 09, 2011
Posted to Indiana Courts

Tuesday, February 08, 2011

Ind. Decisions - Supreme court answers certified question from the SD Indiana

In a 7-page, 5-0 ruling issued this afternoon in Green v. Ford Motor Company, Justice Dickson writes:

The United States District Court for the Southern District of Indiana has certified for our resolution the following issue of Indiana state law:
Whether, in a crashworthiness case alleging enhanced injuries under the Indiana Products Liability Act, the finder of fact shall apportion fault to the person suffering physical harm
when that alleged fault relates to the cause of the underlying accident.
We accepted this question pursuant to Indiana Appellate Rule 64. As explained more fully below, subject to certain qualifications that require modification of the question, our answer is in the affirmative.

Posted by Marcia Oddi on Tuesday, February 08, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Comments open on court rule changes until March 25th

See the notice here.

Posted by Marcia Oddi on Tuesday, February 08, 2011
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues one opinion today

In Mariea L. Best v. Russell C. Best, a 6-page, 3-1 opinion, Justice Dickson writes:

In its resolution of intensely litigated post-dissolution motions on various issues primarily related to the custody of the parties' two children, a son, A.B., and a daughter, M.B., the trial court granted the father sole legal custody and primary physical custody of both A.B. and M.B. The mother appealed the decisions related to M.B., and the Court of Appeals affirmed in part and reversed in part in a memorandum decision. We now grant transfer and affirm the trial court's modification of physical custody. * * *

In summary, sufficient findings were made to support the trial court's decision to modify the physical custody of M.B. And because the mother does not establish a complete absence of evidence supporting the trial court's denial of the mother's request for full physical custody of M.B., we decline to reverse the denial. We find no error in the trial court's decision to place M.B.'s primary physical custody with the father, subject to its specifications of parenting time, which are not challenged. In all other respects the decision of the Court of Appeals is summarily affirmed. For these reasons, the judgment of the trial court is affirmed, except as to the finding that the mother is in contempt, which is reversed.

Shepard, C.J., and Rucker, J., concur.
Sullivan, J., dissents and would deny transfer, believing the decision of the Court of Appeals to be correct.
David, J., not participating.

Posted by Marcia Oddi on Tuesday, February 08, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Yesterday was "social issues" day in the General Assembly [Updated]

Or so it seemed.

First up was HJR 6, a constitutional amendment to prohibit gay marriage. As Jim Shella of WISH TV reported when the committee meeting adjourned:

A committee in the Indiana House just voted 8-to-4 in favor of the latest version of a constitutional ban on same sex marriage. The vote was along party lines with Republicans in favor of the ban.

The proposal has passed the state Senate 5 times but has never gone to a statewide referendum because House Democrats were able to derail it. That doesn’t appear likely now with Republicans in control.

The measure must pass 2 separately elected General Assemblies and then go to a vote of the people in order to change the constitution.

The Muncie Star-Press editorialized against HJR 6 this morning. Some quotes:
A GOP-ruled Indiana House committee voted 8-4 along party lines Monday to advance the proposal, which now moves to the full House for consideration. [ILB - here is the Roll Call]

The amendment states that only marriage between one man and one woman is valid in Indiana, and prohibits civil unions by stating that a legal status "substantially similar" to marriage for unmarried people is not valid.

Lawmakers would argue they are taking a proactive approach in case the current law faces a legal challenge and is overturned in the courts. A better description might be to call it a waste of time. That would be the description Rep. Ed DeLaney, D-Indianapolis, would use, especially with lawmakers dealing with big economic issues such as a state budget and a bankrupt unemployment benefit program.

That alone would be argument enough to shelve this measure. Indiana's current law banning gay marriage has been on the books for a number of years.

Nationally known conservative Indiana attorney Jim Bopp spearheaded the testimony in favor of the amendment, asserting that gay couples could still contract re insurance, hospital access, etc. Rep. DeLaney asked at what point would a contract protecting a gay couple's rights cross the line into creating "a legal status substantially similar to marriage," thereby also violating the proposed constitutional prohibition. Re assertions that the constitutional language was necessary to protect against our Supreme Court throwing out our existing Defense of Marriage law, DeLaney asked, without success, for the names of the feared "liberal" Indiana justices.

Niki Kelly reports today in the Fort Wayne Journal Gazette on yesterday's Senate committee hearing on abortion restrictions. The story begins:

State lawmakers considered Monday whether to establish a state law requiring abortion doctors to have admitting privileges in the county where they perform the procedure or in an adjacent county.

The Senate Health and Provider Services Committee also took testimony regarding an expanded informed consent law for abortion.

The panel combined Senate Bill 457 into Senate Bill 328 and made significant additional amendments but did not take a final vote on the legislation. That could come later this week.

[More] See also this story by Heather Gillers in this morning's Indianapolis Star, headlined "Gay-marriage ban clears House panel: With GOP in control, legislators more likely to pass constitutional resolution."

[Updated 2/9/11] Here is Heather Gillers' Feb. 8th Indy Star coverage of the hearing on HJR 6. A quote:

At Monday's hearing, anti-gay-marriage activists urged lawmakers to move Turner's resolution forward so that Hoosiers can vote.

"This has important effects in protecting the . . . foundation of families and the raising of children," argued James Bopp, an attorney for social conservative causes, "but equally important is the right of the people to make the decision."

Attorney General Greg Zoeller submitted a letter supporting the resolution and committing to defend a constitutional ban against legal threats.

Posted by Marcia Oddi on Tuesday, February 08, 2011
Posted to Indiana Law

Monday, February 07, 2011

Environment - "Supreme Court's Murky Clean Water Act Ruling Created Legal Quagmire" [Updated]

This long story by Lawrence Hurley, the first of a valuable 3-part series in the NY Times "on muddled federal wetland regulations," complete with links to all the related documents, will not surprise environmental lawyers, as the first paragraph makes clear:

Lawyers rarely agree on anything, but here's an exception: They all say the Supreme Court bungled Rapanos v. United States, a major wetlands case, almost five years ago.

Attorneys representing all interested parties say lower court judges, regulators, the business community and individual landowners continue to suffer as a result of the confusion sown by the justices whose main job is to provide clarity in the law.

[Updated 2/9/11] See also this entry by Jonathan H. Adler of the Volokh Conspiracy.

Posted by Marcia Oddi on Monday, February 07, 2011
Posted to Environment

Ind. Courts - Even more on "Errors found in Indiana state lab toxicology tests: Mistakes that audit uncovered could lead to overturned verdicts"

Updating this ILB entry from Feb. 6th, Mary Kate Malone of the South Bend Tribune reports today on the impact in St. Joe county in a story that includes:

Thomas Sanders, St. Joseph County deputy prosecutor, said the report is concerning but not necessarily catastrophic.

He said more information needs to come to light about the scope and severity of the errors and how they might have affected cases in St. Joseph County.

“It is a problem; we're not sure how serious it is,” he said.

Posted by Marcia Oddi on Monday, February 07, 2011
Posted to Indiana Courts

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

Updating this Jan. 30, 2011 ILB entry re Wisconsin, headed "Convicted attorneys are still practicing: Some even have kept their licenses while serving time for their crimes," the same Milwaukee Journal Sentinel reporters, Cary Spivak and Ben Poston, had this story on Sunday, Feb. 6, headed "Lawyers' clients kept in dark on past issues." Some quotes from the lengthy story:

What the Krnak family didn't know was that the state Office of Lawyer Regulation - the policing arm of the Wisconsin Supreme Court - had started looking into Elliott in December 2007, an investigation that led to his 2010 disbarment for pocketing his client's money. He was ordered to pay $1.3 million restitution.

The existence of that probe was kept secret, standard practice for all citizen complaints received by the office. Additional complaints were filed in 2008, creating a growing roster of victims.

It's one more example of how a closed, slow-moving system can favor lawyers over their clients. The Journal Sentinel reported last week at least 135 practicing attorneys have criminal records. Some of those lawyers kept their licenses even while behind bars.

Today, Elliott is a disbarred attorney serving a 10-year federal prison sentence for embezzling more than $3.6 million from clients - including $131,101 from the Krnak family's estate. He was charged in July 2009 with masterminding the fraud that involved a $35 million check kiting scheme. He pleaded guilty in February 2010.

While awaiting sentencing, Elliott was arrested and charged in June 2010 with robbing a Waukesha County bank. He is awaiting trial on separate bank robbery charges.

When Wrezenski and other clients entrusted Elliott with their money, he was simply a gregarious attorney who had been practicing since 1974. * * *

The Office of Lawyer Regulation operates under a veil of court-mandated confidentiality that keeps information about complaints filed by the public against lawyers secret. Disciplinary information is made available only if an attorney is publicly sanctioned or the agency files a formal complaint against the lawyer. Some disciplinary actions, including some reprimands, are issued behind closed doors.

Even today - three years after the formal complaint was filed and three months since Elliott was disbarred - the actual citizen complaints filed against Elliott remain closed.

Wrezenski said the sting of the financial loss is increased by the knowledge that regulators were on Elliott's trail when she gave him the check for investment. She said she would have never given him the $100,000 check had she known about the investigation. * * *

"There should be a clearinghouse where  . . .  you plug his name in and we'll give you the information."

That attorney clearinghouse would post citizen complaints as soon as they are filed - that is, before regulators investigated them - as well as discipline actions such as reprimands and suspension that have been imposed against a lawyer.
Privacy vs. protection

Balancing the public's need to know against a lawyer's desire for privacy is a difficult issue, said Keith Sellen, director of the Office of Lawyer Regulation. He noted many complaints filed against lawyers by citizens are without merit.

"It's been something I've thought about for a long time, but without a real good solution," Sellen said, adding the issue is particularly troubling when "the lawyer continues on with a pattern of misconduct, taking on new clients."

Oregon - the state with the most open lawyer discipline system in the nation - decided it was more important to protect the public.

Complaints from the public against lawyers become public records immediately in Oregon, and they stay public no matter what the outcome of the investigation. If the complaint is found to be without merit, that information is also public.

A companion story is headed "Lawyers get plenty of protection in Wisconsin: Other states more open on regulation." Some quotes:
The Wisconsin Attorneys' Professional Discipline Compendium on the state courts website is the only online source to find out whether an attorney has been disciplined in the past. The compendium is maintained by the Office of Lawyer Regulation, the policing arm of the Wisconsin Supreme Court. But it's not an easy link to find.

A consumer's best bet is to do an Internet search for the term "Wisconsin OLR compendium" and click on the first link. Once there, users can browse lawyers by name, topic or area of legal practice. The results provide details about public sanctions taken against the lawyer.

However, the compendium site is relatively unknown and not widely used - it got an average of 2,200 page views a week from public users near the end of 2010, according to data provided by the office of state Supreme Court Chief Justice Shirley S. Abrahamson.

By comparison, the more popular State Bar of Wisconsin website logged nearly 52,000 lawyer searches a week in December, according to data from the State Bar.

On the State Bar site, visitors can look up attorneys to get basic contact information and see whether their law licenses are in "good standing." The State Bar site will show whether an attorney's license is currently suspended or revoked but does not show any prior discipline or reprimands.

For example, attorney Joseph Engl's status is listed as "good standing" even though he was convicted in 2004 for using a computer to facilitate an attempted child sex crime. He was sentenced to four years of probation for the felony.

Bob Fellmeth, a law professor at the University of San Diego and former State Bar discipline monitor in California, is a critic of state bars that don't provide easy access to a lawyer's disciplinary record. He said he considers Oregon, California, New York and Illinois as leaders in openness on lawyer discipline.

"There is no excuse for not having the record of the attorney on the bar membership site," Fellmeth said. "The state bar should disclose everything, including criminal and regulatory charges, the outcome, sanctions, if the attorney has been convicted of anything and whether he has malpractice insurance - and how much. You have a right to know."

ILB: Indiana provides the very minimum of information through the Roll of Attorneys.

One can find some disciplinary information about Indiana attorneys by looking at the Roll of Attorneys. I checked "Grant W. Hawkins," who has been in the news, and found this standardized entry:

"(*)“Concluded Discipline:” “YES” indicates this lawyer has been the subject of a professional disciplinary proceeding at least once in the past. To get more information about the lawyer’s disciplinary history, contact the Roll of Attorneys Administrator at (317) 232-5861. Without further information, you should not draw any conclusions about past discipline. Some cases end with minor discipline or are dismissed with no discipline."
I've called that number in the past. The result - It is the Court of the Court archives. They will mail you a copy of the relevant documents for $1.00/per page, in advance. They will not tell you what they contain. They will not send only select pages. (I'm sure you can go to the office in person and view the documents.)

Note, for instance, that there is no online tie-in between the Roll of Attorneys and the disciplinary orders issued by the Court. And even the docket entry, which is linked while the action is pending, is deleted once the action has concluded. So the only lead the public has is the notation reading "YES."

Posted by Marcia Oddi on Monday, February 07, 2011
Posted to Courts in general

Ind. Decisions - Transfer list for week ending February 4, 2011

No transfer list has yet been posted for the week ending Feb. 4, 2011.

Posted by Marcia Oddi on Monday, February 07, 2011
Posted to Indiana Transfer Lists

Ind. Law - Proposed amendment would add chickens to our Indiana bill of rights

Doug Masson's Blog had this report yesterday that began:

The Senate passed Sen. Steele’s SJR 9 out of committee which amends the Indiana Constitution to provide, among other things, that the commercial production of poultry is a valued part of our heritage which should be preserved forever.

Posted by Marcia Oddi on Monday, February 07, 2011
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 4 today (and 13 NFP)

For publication opinions today (4):

In Jerry Ehman v. Mary Ehman, a 7-page opinion, Judge Baker writes:

Here, after a husband and wife divorced, the trial court issued a divorce decree awarding the wife a share of the husband’s retirement account. After the decree was issued, the value of the account declined dramatically because of a drop in the value of General Motors stock. The wife waited for five months to submit a Qualified Domestic Relations Order (QDRO), and waited over a year to seek the trial court’s assistance even after she learned that the account did not have adequate funds to satisfy the QDRO. The husband appealed after the trial court awarded the wife the full amount set forth in the original divorce decree rather than a recalculated share taking into account the decrease in value of the account. We reverse.

Appellant-petitioner Jerry Ehman appeals the trial court’s order entering judgment against him in the amount of $31,322. Jerry argues that the trial court should recalculate the respective shares of his personal savings plan (PSP) to be awarded to Jerry and appellee-respondent Mary Ehman based on a current valuation of the PSP. Finding that Mary was in the best position to avoid the loss and that her failure to submit the QDRO and seek assistance from the trial court in a timely fashion contributed to the dramatic decline in the value of the PSP, we reverse and remand with instructions set forth herein.

In C.H. and M.H. v. J.S. and J.D. , a 15-page opinion, Judge Bradford writes:
In this appeal from a dissolution action, Appellants-Respondents J.S., who is A.H.'s biological mother, and C.H. and M.H., who are A.H.'s adoptive parents, challenge the trial court's granting a visitation petition in favor of A.H.'s biological father, Petitioner-Appellee J.D. Upon appeal, the Respondents challenge the trial court's judgment on a number of grounds, one of which we find dispositive: whether a biological parent who has consented to the adoption of his child but who wishes to petition for visitation must follow the procedures outlined in Indiana Code section 31-19-16-2 (2009). Concluding that section 31-19-16-2 is the exclusive means for asserting visitation rights, and that J.D. did not follow the procedures listed therein, we reverse and remand with instructions to vacate the trial court's grant of visitation. * * *

CRONE, Judge, concurring in result [in an opinion that begins at p. 10 of 15 and that concludes] Today we are forced to separate two young sisters on alternate weekends for no logical reason that I can discern. I believe that our legislature should review Indiana's visitation statutes and that our supreme court should reconsider its pronouncements in K.I. so that we may avoid equally unjust results in future cases.

KIRSCH, J., concurs.

In Ricky E. Graham v. State of Indiana , a 20-page opinion involving a pro se appellant, Judge Barnes concludes:
Graham failed to meet his burden of establishing that he was entitled to post-conviction relief on his claims of an inadequate factual basis or ineffective assistance of appellate counsel. The PCR court properly rejected those claims. We affirm the rejection of those claims, as well as of Graham's freestanding claims of fundamental error. However, the PCR court's findings do not support its rejection of Graham's claim that his plea was illusory or involuntary. We remand for a new PCR hearing to address that question, as well as the question of the effectiveness of his trial counsel on the grounds raised in Graham's PCR petition, should Graham resubmit his subpoena request for his trial counsel to appear at the new hearing. We additionally reiterate that should the PCR court on remand rely on parts of the original trial record, it should make those records part of the current PCR record as well. Affirmed in part and remanded in part.
Dustan Slade v. State of Indiana

NFP civil opinions today (3):

Matter of the Commitment of J.G. (NFP)

Term. of Parent-Child Rel. of Z.S. and A.P.; T.S. v. IDCS (NFP)

D.K. v. Review Board (NFP)

NFP criminal opinions today (10):

Arthur Davis v. State of Indiana (NFP)

Tracy J. Talley v. State of Indiana (NFP)

Dale G. Catron v. State of Indiana (NFP)

Carl Andre Coleman v. State of Indiana (NFP)

Lewis C. Woodward v. State of Indiana (NFP)

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

Lawrence Lusk v. State of Indiana (NFP)

Darrick Williams v. State of Indiana (NFP)

Paul Rogers v. State of Indiana (NFP)

James Roberson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 07, 2011
Posted to Ind. App.Ct. Decisions

Environment - "Hearing Tuesday for manure storage bill"

The Richmond Palladium-Item reports today:

A bill that would regulate the on-ground storage of manure in Indiana will get a hearing in the Indiana House of Representatives on Tuesday.

House Bill 1134, sponsored by State Rep. Tom Saunders, R-Lewisville, will be heard by the House Agricultural and Rural Development Committee at 8:30 a.m. in Statehouse Room 156 C. * * *

Richmond environmental activist Barbara Sha Cox said residents from border counties, including Wayne, Union, Randolph and Jay, need to be represented at Tuesday's hearing. Manure is being stockpiled on the ground in Wayne County along U.S. 27 North, north of Union Pike, Cox said. Agricultural groups are also expected to testify about the bill, which would also regulate on-ground storage of in-state manure.

Manure coming into Indiana from western Ohio has become a concern to some eastern Indiana residents, after Ohio livestock farmers were offered new USDA incentives last summer to ship manure out of the Grand Lake St. Marys' polluted watershed.

Indiana currently has no rules to regulate the storage or application of manure produced by out-of-state confined feeding operations, according to the Indiana Department of Environmental Management.

Manure runoff from fields around the shallow, 13,000-acre Grand Lake St. Marys has been blamed for its pollution. Toxic, blue-green algae blooming in the lake last summer made it unsafe for human contact, Ohio environmental authorities said.

House Bill 1134 would require manure to be incorporated into the soil. Any manure stockpiled for 72 hours or more would have to be covered or contained by a berm and appplied within 90 days.

The bill also establishes storage setbacks of 100 feet from property lines, 400 feet from homes and residential buildings, and 300 feet from surface waters and wells unless there is a barrier that directs run-off away from wells and surface water.

Cox said passing this bill is critical for the safety of Indiana's water supplies and residents.

For background, start with this Jan. 20, 2011 ILB entry.

Posted by Marcia Oddi on Monday, February 07, 2011
Posted to Environment | Indiana Law

Ind. Gov't. - "Welfare fixes being noticed"

Ken Kusmer of the AP has a story today that begins:

INDIANAPOLIS — A year after revamping its troubled welfare intake system, Indiana’s human services agency is receiving kudos from many critics of the old system for a performance that federal officials say has reduced errors for people seeking food stamps.

The Family and Social Services Administration has received federal approval to expand its “hybrid” welfare intake system to 22 counties in north central and northeastern Indiana starting Feb. 14, and officials buoyed by improvements hope to roll out the system to the rest of the state later this year.

Clients say they’ve seen a change since the state in 2009 scrapped its $1.37 billion contract with IBM Corp. to automate many welfare intake functions less than three years into the 10-year contract. That system, which has left the two parties battling in court, was riddled with complaints about missing documents, long waits, improper denial of benefits and other issues that were compounded by a 42 percent jump in the number of welfare applications as the recession hit.

“They seem to be a lot more willing to help you. I think this new system is a whole lot better,” said Joyce Clemons, 49, of Evansville, who received food stamps through the end of January before going on workers’ compensation for an arm injury.

Posted by Marcia Oddi on Monday, February 07, 2011
Posted to Indiana Government

Law - "Emerging Legal Issues in Social Media: Part I"

This lengthy and valuable article, published by Ken Strutin at LLRX.com, has this introduction:

Social media is engaging masses of people in unprecedented ways. At the same time, the diversity of social networking applications has permeated and extended the range of legal investigation, discovery and litigation. As human activity is played out and recorded online, the laws governing cyber-behavior, privacy and discovery continue to evolve. And the distinction between public and private discourse blurs as the demand grows to fill limitless self-published cyber-columns.

Noteworthy means "worthy of notice or attention; notable; remarkable" -- literally jotting something down because it was worth remembering. This descriptor came into vogue barely a century after the birth of movable type, when self-publication and distribution were still daunting tasks. The advent of the printing press changed society by multiplying the written word exponentially, and it occurred before there was any reckoning of the avalanche of information to follow. The technologies of our era have put the power of the printing press into millions of hands. And they are creating a new environment for the practice and administration of law.

The materials collected in this article aim to provide a sense of the emerging issues created by the crosshatch of social media and legal practice. They represent a current sampling of notable developments in law enforcement, law practice, civil and criminal litigation, and technology's influence on human behavior. Hopefully, these materials will offer some insights into the changes being wrought by the user dominated stage of the Information Revolution.

Due to the breadth of this topic, the article will be published in two parts. Part I covers select statutes, case law, ethics opinions, and news media. Part II will address pertinent materials appearing in professional journals and blogs, law reviews, reports, books and secondary resources.

Posted by Marcia Oddi on Monday, February 07, 2011
Posted to General Law Related

Ind. Courts - "The U.S. District Court for the Southern District of Indiana for the first time has seated a federal grand jury outside of Indianapolis"

Mark Wilson of the Evansville Courier & Press has an interesting story today - some quotes:

Federal officials say having a grand jury in Evansville is both a cost-saving measure and a matter of fairness.

The court amended its jury plan in October to allow for a grand jury to be convened in Evansville, but Chief Judge Richard L. Young said it was decided to wait until the new year to start the process.

In years past, when the state capital was the only grand jury location for the district court, jurors were randomly selected from all 60 counties in its jurisdiction, said Linda Carmichael, jury administrator for the district court.

Grand jurors in the Evansville division are being chosen from the 10 counties it covers: Daviess, Dubois, Gibson, Martin, Perry, Pike, Posey, Spencer, Vanderburgh and Warrick. However, Carmichael said grand jury participants in the Indianapolis division still will be selected districtwide. Grand juries are not being convened in the court's other divisions.

Jurors participating in civil or criminal trials still are selected from among the counties in each of the district court's four divisions, depending on the trial's location. The court has divisions in Indianapolis, Terre Haute, Evansville and New Albany.

Typically, 23 jurors and five alternates are selected, Young said. There must be 16 jurors present for a grand jury to conduct a session. The jurors serve for one year, he said, meeting monthly for one to two days. * * *

Evansville's remote location from the state capital and the associated costs of sending prosecutors and witnesses to Indianapolis were significant factors in the decision.

Laura Briggs, the Southern Indiana district court's clerk of court, said the rules made it probable that jurors from the district's farther reaches might serve less often. That is because jurors who have to travel more than 100 miles from the court house where the jury is to be located can be excused if they ask.

Also, those facing such a proceeding are now more likely to face an actual jury of their peers, Young said. Saving expenses of hotel stays, travel and time is another factor.

"Now instead of driving three hours, (federal) prosecutors can walk up one flight of stairs and present their cases to the grand jury," Young said. "When I came on in 1998, there were no assistant U.S. attorneys here. Now we have three here, and a strong contingent of federal agencies such as the Drug Enforcement Administration, Alcohol, Tobacco and Firearms and Federal Bureau of Investigation. Criminal prosecutions have gone up in the last 10 to 12 years."

Posted by Marcia Oddi on Monday, February 07, 2011
Posted to Indiana Courts

Ind. Courts - "Cell phone lockers approved for Porter County courthouses"

Bob Kasarda of the NWI Times reports today:

VALPARAISO | Cell phones were banned 3.5 years ago from the three courthouse buildings, and now Porter County is offering unaware visitors an option to taking their phones back to their cars or stashing them in nearby shrubs.

Commissioners this week approved a request from the sheriff's department to buy lockers for each building entrance where visitors can store their phones free of cost.

Capt. George Gonzalez said rather than take on the job of charging visitors for lockers, they will be offered as a free public service using tokens.

The three sets of lockers will cost $1,250 each, he said, and will be installed at the court buildings in Valparaiso and Portage, and at the juvenile services center south of U.S. 30 on Ind. 2. * * *

The cell phone ban continues to catch courthouse visitors off-guard despite news articles and numerous signs at the entrances of the buildings.

Porter Superior Judge David Chidester has defended the ban as necessary for security purposes.

When the ban took effect Aug. 1, 2007, Chidester voiced concern about the availability of devices that look like cell phones capable of shooting bullets.

The phones also pose problems at the courts because they can be used to take photographs, record hearings, interrupt the proceedings or be used to access the Internet, he has said.

For background, see this June 8, 2010 ILB entry.

Posted by Marcia Oddi on Monday, February 07, 2011
Posted to Indiana Courts

Ind. Gov't. - More on: What to watch for this week in the General Assembly

Updating yesterday's long ILB entry, Mary Beth Schneider and Heather Gillers of the Indianapolis Star have a story today headed "Indiana lawmakers to take up budget, gay marriage ban." Some quotes:

Among the key issues being debated this week: local government reforms; same-sex marriage; illegal immigration; abortion; and education reforms. * * *

Today

At 10 a.m., the House Ways and Means Committee is taking public testimony on a new state budget.

At 10:30 a.m., the House Education Committee is taking testimony on several bills, including a controversial bill that ties school administrators’ pay to how well their students perform.

At the same time, the House Judiciary Committee will be hearing from those who support and oppose amending Indiana’s state constitution to ban same-sex marriage, civil unions or anything else that grants the same legal rights as marriage.

And this afternoon, whenever the full Senate completes its work for the day, the Senate Health and Provider Services Committee will consider two bills to tighten restrictions on abortion.

Tuesday

The House Government and Regulatory Reform Committee is debating a dozen bills, all reforming various aspects of township and county government, in a marathon hearing that begins at 9 a.m., before stopping and resuming later in the day. The evening hearing will start at 6:30 p.m. or when the full House completes its work for the day, whichever comes later, said Rep. Phil Hinkle, the committee chairman. * * *

Wednesday

The spotlight turns to illegal immigration. A hearing on Senate Bill 590 is expected to draw many supporters and opponents. * * *

The wide-ranging bill, which will be debated by the Senate Pensions and Labor Committee at 3:30 p.m. in the Senate chambers, would give police the authority to ask people to prove they are citizens or legal visitors, if police have “reasonable suspicion” that they are not here legally.

It also would make English the only language used in most government documents and meetings and would crack down on businesses that knowingly hire illegal immigrants.

What's ahead

The legislative pace won’t slow after this week, either.

Lawmakers are facing a Feb. 21 deadline for bills to get out of committee. Those that don’t clear that first hurdle likely are finished for the session.

“Deadlines are starting to creep up,” said Rep. Eric Turner, R- Marion. “By the end of the month, we’ll be done with the first half of the session. If bills have not moved, they’re dead.”

Posted by Marcia Oddi on Monday, February 07, 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?"

From Sunday, February 6, 2011:

From Saturday, February 5, 2011:

From late Friday, February 4, 2011:

Posted by Marcia Oddi on Monday, February 07, 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 2/7/11):

Tuesday, February 8th

Wednesday, February 9th

Next week's oral arguments before the Supreme Court (week of 2/14/11):

Next Thursday, February 17th

Webcasts of Supreme Court oral arguments are available here.



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

Next week's oral arguments before the Court of Appeals (week of 2/14/11):

Next Wednesday, February 16th

Next Thursday, February 17th

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

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


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

Posted by Marcia Oddi on Monday, February 07, 2011
Posted to Upcoming Oral Arguments

Sunday, February 06, 2011

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 fourth week of committee hearings in the 2011 session. The bills passed out of committee included those relating to partition of land, recognition of foreign country money judgments, and secured transactions.

Posted by Marcia Oddi on Sunday, February 06, 2011
Posted to Indiana Courts

Indiana Law - "A look at obscure criminal laws"

The Indianapolis Star today has this brief item at the end of what used to be called its "Behind Closed Doors" column:

A look at obscure laws

Over the years, legislators have attached criminal penalties to many different kinds of misdeeds -- from shipping wild animal eggs to erecting a billboard the wrong size.

On Thursday, the Indiana House got to see just how many.

That's because House members were approving a housekeeping measure that moved all the crimes buried in different parts of state law to the section designated for criminal statutes. The list contained more than 1,000 crimes and stretched 28 pages.

But not all of the crimes are likely to make extra work for law enforcement. It's doubtful that many people have been handcuffed for violating rules that govern hotel bedding or cemetery associations.

The bill referenced is SB 315. The printed version of the bill is 28-pages long. But the laws themselves are not included in the 28 pages, despite the Star's statement that the bill is "a housekeeping measure that moved all the crimes buried in different parts of state law to the section designated for criminal statutes." Instead, the bill simply lists the citation and a two or three word description of each criminal law that is not located in IC 35, the Title of the Indiana Code that is generally understood to include all of Indiana's "Criminal Law and Procedure."

So what is the purpose of SB 315?
Apparently merely to serve as an enacted index or cross-reference to other criminal laws in the Indiana Code that are not located in Title 35.

And what weight does this list have -- i.e. why is it enacted into law? Apparently it has no weight, as its first section (which is to become IC 35-1-1) provides:

This article is not intended to be an exhaustive compilation of all criminal statutes codified outside IC 35 in the Indiana Code. Other criminal statutes may be found in IC 35 and other provisions of the Indiana Code.
In short, whether or not a criminal law located outside of IC 35 is listed or not listed is irrelevant to its efficacy.

This is not the first time such cross references have been enacted. See, for example, IC 34-7-4, stating that Title 34 "is not intended to be an exhaustive compilation of all causes of action and procedures in the Indiana Code." It is followed by a very brief list of statutes.

This discussion may bring to mind to some of you the issue of noncode laws
-- what has been done to resolve the serious problem of laws that are in effect but are not included in the Indiana Code, an issue that was first raised by the ILB now nearly three years ago? There will be more on that in a later entry.

Posted by Marcia Oddi on Sunday, February 06, 2011
Posted to Indiana Law

Ind. Gov't. - What to watch for this week in the General Assembly

Niki Kelly of the Fort Wayne Journal Gazette tweeted last Friday:

Next week at the legislature brutally busy - gay marriage; budget; abortion; immigration; sentencing and local government reform; merit pay
Kevin Leininger of the Fort Wayne News Sentinel reported on Sat., Feb. 5 in a story headed "Indiana lawmakers push at least 13 abortion-related bills ." The story listed the bills the Indiana Right to Life Political Action Committee lobbyist Sue Swayze considered priorities:
House Bill 1205 would prevent the state from entering into contracts with or making grants to any entity that performs abortions or operates facilities in which they are performed. * * *

Senate Bill 116 would require Indiana to opt out of abortion coverage offered by any health plan under the new federal health-care reform act. * * *

Senate Bill 457 is an “informed consent” law that would require women to be informed orally and in writing with information pertaining to abortion, such as adoption and fetal development. * * *

House Bill 1258 would regulate chemically induced abortions [i.e. RU-486]. * * *

Senate Bill 522 would ban abortion after 20 weeks * * *

There's even a bill that would outlaw abortion entirely – should the Supreme Court ever repeal its Roe vs. Wade decision.

CNHI's Maureen Hayden reported Saturday on the "Status of major legislation in the Indiana General Assembly,", listing:
Alcohol ID law

• House approves bill to revise current state alcohol ID law. Store clerks would no longer be required to card customers who appear older than 40. Bill moves onto the Senate. HB 1325 moves onto state Senate.

Education reform

• Bills on charter schools, vouchers, teacher evaluation and other issues undergoing amendments and hearings. Awaiting passage in both House and Senate. Bill to postpone school start until after Labor Day fails in Senate.

English language

• State documents would have to be published in English only under a bill that passed the House. HB 1255 now moves to the Senate.

Illegal immigration

• Hearing scheduled Wednesday for Senate bill that would require police to ask for proof of citizenship or immigration status if they had reasonable suspicion. SB 590 also provides penalties for employers who knowingly hire illegal immigrants.

Smoking ban

• Public smoking ban passes House, with exemptions for bars, casinos, nursing tobacco retailers and more. HB 1018 now moves to Senate for consideration.

Unemployment insurance fund

• House passes bill that would reduce unemployment benefits and increase employer premiums; includes 13 percent surcharge on businesses to repay $2 billion state owes to federal government. HB 1450 moves on to the Senate.

Voting centers

• Senate passes bill to allow counties to convert to voting centers rather than continue with the precinct system. Senate Bill 32 moves on to the House.

ILB: Senate and House committees will have at most two more meetings to hear first house bills. There are a lot of bills scheduled for committee hearings this week, here are some the ILB will be watching. I've provided the links to the video from the committee rooms, but note that legislative meetings often start late. And remember, these live committee videos unfortunately are NOT archived:

Posted by Marcia Oddi on Sunday, February 06, 2011
Posted to Indiana Government

Local Gov't. - "Lake County's waste inspires move for statewide trash agency reforms"

A very long story today in the NWI Times, reported by Marc Chase, begins:

An inflated director's salary, bloated budget and trash-to-ethanol controversy of the Lake County Solid Waste Management District are helping motivate a move to reform such agencies statewide, a downstate senator says.

Indiana Sen. Beverly Gard, R-Greenfield, is sponsoring a bill that would eliminate the ability of state solid waste districts to impose property taxes and would place all funding authority for such agencies in the hands of the state.

The bill also would make funding amounts dependent on district populations and would reset priorities of the agencies with an emphasis on providing education on waste disposal and recycling.

Though it's headed for summer study session and will not receive debate in the General Assembly in the current session, the bill has opened a debate regarding the efficiency and effectiveness of the state's solid waste districts.

The SWMD bill is SB 565.

Posted by Marcia Oddi on Sunday, February 06, 2011
Posted to Environment | Indiana Government | Indiana Law

Ind. Courts - More on "Errors found in Indiana state lab toxicology tests: Mistakes that audit uncovered could lead to overturned verdicts"

Updating this ILB entry from Feb. 3rd, the Elkhart and Lafayette papers today report on the local impact of the findings.

Justin Leighty writes in the Elkhart Truth:

GOSHEN -- Problems with toxicology tests from the Indiana State Department of Toxicology will likely have no local impact, according to the Elkhart County Prosecutor's office.

"We do not use or very seldom have we ever used Indiana State Lab for toxicology tests, we usually use Indiana State Police," said Ed Windbigler, chief investigator with the prosecutor's office.

He said personnel in the office don't think there are any cases that would be affected in Elkhart County.
The upshot will likely be different in the Lafayette area, according to this long story today by Sophia Voravong of the Lafayette Journal Courier, headed "Toxicology audit hits home for Lafayette attorneys." Some quotes:
Lafayette criminal defense attorney Matt Sandy has long questioned the accuracy of toxicology tests that indicate whether someone has abused drugs. * * *

A recently released audit of the Indiana State Department of Toxicology showed errors in about 200 of 2,000 marijuana tests returned to law enforcement as having positive results.

That includes about 50 described as "a conscious manipulation of results" by lab employees, the Indianapolis Star reported.

The audit, though limited in scope right now, could lead to tossed convictions and overturned verdicts.

"Ten percent of botched results is beyond significant," Sandy said. "One percent would be significant. Ten percent is over the top." * * *

For now, it's unclear whether any cases in the Lafayette area were affected.

Tippecanoe County Prosecutor Pat Harrington said law enforcement here generally use the Indiana State Police lab in Lowell, versus the Department of Toxicology, which is part of Indiana University's School of Medicine in Indianapolis.

Also, Tippecanoe County has two blood draws done -- one at the hospital directly after a person's arrest and another sample that is sent for testing, Harrington said.

He received an e-mail last Thursday from the Indiana Prosecuting Attorneys Council about the issue, which indicated that the Department of Toxicology will directly contact attorneys whose clients were affected.

If any of them were local, Harrington said his office will seek a new test from an independent lab, so long as another sample is available.

Otherwise, charges will be dropped.

"We will take the proper procedures," Harrington said. "If a sample is not available, the case will have to be dismissed. The issue here is, 'Why were there mistakes made?'

Posted by Marcia Oddi on Sunday, February 06, 2011
Posted to Indiana Courts

Friday, February 04, 2011

Ind. Courts - Lawyer suspended in 2008 sentenced to nine years in prison for stealing from the trust fund accounts of 23 clients

Nick Schneider of the Greene County Daily World has the story that begins:

An Evansville attorney with Greene County ties has been sentenced to nine years in prison for stealing from the trust fund accounts of 23 clients.

Douglas W. Patterson, 46, pleaded guilty to three counts of theft, all class D felonies, as part of a negotiate plea agreement filed in December.

For background start with this ILB entry from Nov. 6, 2010.

Posted by Marcia Oddi on Friday, February 04, 2011
Posted to Indiana Courts

Ind. Law - "Consumer groups balk at bills to speed utility cost recovery "

From the IBJ, an important story by Chris O'Malley. A sample:

Ratepayer groups worry new legislation coursing through the Indiana General Assembly amounts to trackers gone wild. They warn measures would effectively rubber-stamp rate increases without sufficient oversight of the Indiana Utility Regulatory Commission or input from ratepayer groups.

Posted by Marcia Oddi on Friday, February 04, 2011
Posted to Indiana Law

Law - "Researching Bush and Obama Presidential Signing Statements"

The Law Librarian Blog today points to a great resource, Joyce Green's Presidential Signing Statements.

Posted by Marcia Oddi on Friday, February 04, 2011
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Terry Likens, et al. v. Prickett's Properties, Inc., et al. , a 12-page opinion, Judge Vaidik writes:

Terry Likens and Marti Likens, husband and wife, appeal the trial court's grant of summary judgment in favor of realtor Jack Stump and real estate agency Prickett's Properties, Inc. Stump represented the buyers in a real estate transaction involving the Likenses' home but nevertheless directly contacted the Likenses, who had their own realtor, to encourage them to accept the buyers' offer. The Likenses accepted the buyers' offer, but closing never occurred. The Likenses then sued Stump for negligence. According to Indiana Code chapter 25-34.1-10, Stump only owed the Likenses the duty to treat them honestly and not knowingly give them false information. Because the Likenses do not allege on appeal that Stump breached this specific duty, we affirm the trial court's grant of summary judgment in favor of Stump and the agency he works for.
NFP civil opinions today (1):

Term. of Parent-Child Rel. of J.J.; K.F. v. IDCS (NFP)

NFP criminal opinions today (1):

Jezrael Vaughn v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 04, 2011
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from Jan. 30th, the Fort Wayne Journal Gazette has an editorial today titled "Great Lakes sewer." It begins:

While Fort Wayne residents dutifully endure higher sewer rates to pay for the federally mandated plan to keep raw sewage out of its rivers, the Gary Sanitary District continues to use the Great Lakes as its sewer – with no immediate plans to stop. And the U.S. Environmental Protection Agency and the Indiana Department of Environmental Management have yet to set any deadlines or impose any fines on Gary.

Posted by Marcia Oddi on Friday, February 04, 2011
Posted to Environment

Ind. Law - More on: Indiana Law on towing of vehicles left on private property

Updating this ILB entry from Feb. 1, Indy 6 News had a story last evening headed "Downtown Parking Dispute Could Change Towing Laws." After detailing the most recent towing incident, the story concludes:

The Department of Code Enforcement is looking into this incident and other consumer complaints involving towing companies in Indianapolis.

In Indianapolis, there is no regulation or oversight when it comes to towing. Wrecking services can charge whatever they want to tow a car, keep it in storage and whatever they want to charge to return the car.

Graham may have missed the signs, but he sees the need for regulation.

"We're trying to determine where, if any, regulation might fit in that would provide consumer protection without making the businesses burdensome for the wreckers themselves," said Adam Collins, city licensing administrator.

Similar incidents have occurred at sports events, Black Expo and in Broad Ripple.

6News tried to reach Delaware and South for comment, but the calls were not returned Thursday.

Posted by Marcia Oddi on Friday, February 04, 2011
Posted to Indiana Government | Indiana Law

Environment - "Purdue poised to cancel coal-fired power plant"

From a Nov. 17, 2010 ILB entry quoting a Fort Wayne Journal Gazette editorial headed "Purdue has power to change for better."Purdue University, accustomed to admiration for its advancements in alternative energy, is under fire from state and national environmental groups for expanding its reliance on a pollution-producing coal-fired power plant.This morning there was this AP item on Indy 6 News:

WEST LAFAYETTE, Ind. -- Purdue University is moving to cancel plans for a new coal-fired power unit that had been strongly opposed by environmental activists.

The school's board of trustees committee passed a resolution Thursday calling for canceling the $53 million Wade Utility Plant project based on financial and regulatory concerns. The full board was scheduled to vote on that proposal Friday. * * *

School officials now want to replace the campus' aging coal boiler unit with a natural gas boiler.

[More] Here is the full story by Eric Weddle of the Lafayette Journal Courier. A quote:
Bob McMains, vice president of physical facilities, said the installation of a circulating fluid bed coal-fired boiler, dubbed Boiler No. 6, was originally expected to have long-term economic benefits. But the estimated increase in the cost of fuel and expected future regulations for coal use and ash disposal made the plan unworkable.

Now, officials want to add a natural gas boiler instead to replace the existing 50-year-old coal Boiler No. 1.

"We are really trying to look at this in the long term," McMains said. "We are stewards of the university, and we are trying to look at what is good for the long haul. The diversification of fuel types and the future regulatory requirements make this a more sensible approach..."

The news heartened state environmentalists who sought to stop Purdue's expanded use of coal through protests and legal challenges to the university's permit application.

Posted by Marcia Oddi on Friday, February 04, 2011
Posted to Environment | Indiana Government

Ind. Courts - "Help, Google Knows About My Speeding Ticket "

Fascinating item this morning in the WSJ, in the Career Q&A column by Elizabeth Garone. It begins:

Q: In early 2009 I pleaded guilty in traffic court for a speeding violation and paid the ticket and the fee. When I recently Googled my name, to my surprise, a link to the case came up on the first page of results. When I clicked on it, I could see all my vital personal information, including my driver's license number, date of birth, address, car description, time, and place of the violation. I am concerned that my personal information is at risk for identity theft. Also, I am job searching and worry that a potential employer might look at my court case negatively. Is it a mistake that the court made my personal information accessible to anyone online? I am not sure how I should properly handle it.
—Indiana

A: In some states, what the court did would be illegal. In others, it's perfectly legal, which could make it much harder to get it removed, according to Jay Foley, executive director of the Identity Theft Resource Center in San Diego, Calif. Unfortunately, your state, Indiana, allows information like this to be made public. "It's a tightrope, and each of the courts is walking it," says Mr. Foley. * * *

We checked with Christa Coffey, the clerk in Tippecanoe County where your violation occurred, and she said that there is not a formal process for asking to have such information removed. What you can do is write a letter to the judge who presided in the case, explaining why you would like the information to be removed, suggests Ms. Coffey. But you might not want to get your hopes up. "The policy of most judges has been that since it is public information, it stays," says Ms. Coffey.

ILB: Tippecanoe County's court records are indeed online, available for public access. Tippecanoe is not part of the JTAC system, but has posted its records online independently, with the authorization of the Supreme Court.

Here is the search form for a general inquiry. Because the letter writer's name is not revealed in the WSJ article, I could not do a search for her specific record. I entered names at random and looked at "IF" records, which are infractions. I did not see any social security information included in these public court records.

Posted by Marcia Oddi on Friday, February 04, 2011
Posted to Indiana Courts

Thursday, February 03, 2011

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

Updating this ILB entry from Jan. 27th, Jon Seidel of the Gary Post-Tribune writes this afternoon:

Most of Lake County’s judges would be nominated by a judicial nominating commission and appointed by the governor under a bill that cleared the state Senate Thursday.

The county’s four superior court county division judges are now elected every six years. Senate Bill 499, which passed in a 30-18 vote, would bring them in line with other county judges. The circuit court judge, which is a constitutional office, would be the only elected judge in the county.

Here is the Senate Roll Call sheet, detailing the 30-18 vote.

Posted by Marcia Oddi on Thursday, February 03, 2011
Posted to Indiana Courts

Ind. Law - The headline speaks for itself

The headline to this story in the South Bend Tribune, by Deanna Martin of the AP, speaks for itself:

"Indiana House OKs bill to fix ridiculed alcohol ID"

Posted by Marcia Oddi on Thursday, February 03, 2011
Posted to Indiana Law

Ind. Courts - "All judges should be lawyers"

The Indiana Courts press office has distributed to the media this opinion piece by Judge Mark Stoner, Marion Superior Court, and Judge Terry Shewmaker, Elkhart Circuit Court, who serve as co-chairs of the Strategic Planning Committee of the Indiana Judicial Conference:

The Indiana trial court system has several types of courts: circuit, superior, small claims and one probate court. In 2009, 1.5 million cases were filed in those courts and all of the cases were heard by judges who are lawyers. Those judges are in good standing with disciplinary authorities and licensed to practice law in Indiana.

Indiana also has approximately 75 city and town courts. In 2009, 375,000 cases, including criminal misdemeanors and speeding tickets, were heard in these courts. Not all of the judges in those courts are lawyers. Some cities and towns do not require it.

Senate Bill 312 would require all judges in the State of Indiana to be lawyers. Judges who are not lawyers would be allowed to complete their current term. Their replacements would have to be lawyers in good standing, admitted to practice law in Indiana.

The Indiana Judicial Conference (judges from across the state) and the Strategic Planning Committee of the Conference, strongly support Senate Bill 312. Indiana judges believe that non-lawyers serving as city and town court judges attempt to perform their duties to the best of their abilities. We simply believe that in matters of great importance to Indiana citizens, a person who has graduated from law school and passed the bar exam should hear the case.

Hoosiers have important constitutional and statutory rights. Most people think of serious felony cases when they think of constitutional rights. They think of television trials like those shown on Law and Order. But Hoosiers have important rights which apply even in matters such as speeding tickets. Citizens having cases heard in city and town courts can lose their driving privileges or even be jailed. It is important that judges follow all statutes and apply the law properly in all cases. Senate Bill 312 would protect Hoosiers’ rights by ensuring that law-trained judges preside over all cases in Indiana, from murder to divorce to speeding tickets.

Most Indiana citizens will never see the inside of a courtroom for a serious felony offense or a complicated contract dispute. But many Indiana citizens will receive a speeding ticket, a parking ticket, or have an issue with their driver’s license that must be resolved in court. We believe all Hoosiers deserve to have a law-trained judge resolving these disputes.

ILB: SB 312 is authored by Senator Randy Head and has been assigned to the Judiciary Committee. It currently is not scheduled for a hearing.

ILB: It should be noted that many Indiana judges of city and town courts are attorneys, and many Indiana judges who handle traffic court cases are attorneys.

Posted by Marcia Oddi on Thursday, February 03, 2011
Posted to Indiana Courts

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

For publication opinions today (0):

NFP civil opinions today (2):

Michael Linner, et al. v. Wells Fargo Bank, N.A., et al. (NFP)

Richard N. Bell v. Nancy D. Bell (NFP)

NFP criminal opinions today (3):

Anthonia R. McWhorter v. State of Indiana (NFP)

Eric Daniels v. State of Indiana (NFP)

Larry m. Gonzalez v. State of Indiana (NFP)

NFP criminal opinions yesterday (4):

Spencer R. Norvell v. State of Indiana (NFP)

Shane O. Bright v. State of Indiana (NFP)

Tra Hibbard v. State of Indiana (NFP)

George G. Casillas v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 03, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "The rise of do-it-yourself redistricting"

Updating yesterday's ILB entry announcing that the census data needed for redistricting Indiana would be available next week, Stateline.org has a long and timely article today, written by Josh Goodman, on citizen participation. Here is an interesting quote, from about half-way through the article:

[But] at the state level, the efforts in Idaho and Florida are exceptions, not the rule. Most states are making no further plans to engage the public in 2011 than they did a decade ago.

One reason why is money. Mark Stratton, who works on redistricting for Indiana’s Legislative Services Agency, says that when he was talking with vendors about online redistricting last year, they told him it would cost the state $125,000 to $150,000. But Indiana’s redistricting budget — for hardware, software and staff — is only $250,000. While prices have dropped some since then, Stratton says a big effort at online outreach simply wasn’t practical financially.

Posted by Marcia Oddi on Thursday, February 03, 2011
Posted to Indiana Government

Ind. Courts - "Indiana hospitals taking on the feds over indigent care"

Jeff Swiatek reports today in the Muncie Star-Press in a story that begins:

Indiana's hospital heavyweights are taking on the feds in a lawsuit seeking more pay to care for indigent patients.

The lawsuit, filed last month in federal court in Indianapolis, pits 24 hospitals -- including Indiana University Health (which includes Muncie's Ball Memorial and Blackford), St. Vincent and Wishard -- against the Department of Health and Human Services program that runs the Medicaid health insurance system for the poor.

At stake is $57 million in back pay the hospitals say they're owed and a boost in future funding from Medicaid to treat indigent patients who can't pay their bills.

"It's undoubtedly a tough case for us," said Keith D. Barber, an attorney for Hall Render Killian Health & Lyman, the Indianapolis firm that's bringing the lawsuit on behalf of the hospitals. "I expect the government will vigorously defend their position."

Muncie's Ball Memorial Hospital -- part of IU Health and its predecessor, Clarian Health, for two years -- has chalked up millions of dollars in losses to lower-than-hoped-for federal Medicaid reimbursements.

Officials said the Muncie hospital -- which delivered $32 million in charity care in 2009, according to its annual report -- was losing as much as $9 million a year in reimbursements.

Posted by Marcia Oddi on Thursday, February 03, 2011
Posted to Indiana Courts

Ind. Law - "If the state passes a smoking ban, it won't change local ban ordinances"

So reports Stephanie Gattman today in a story in the Elkhart Truth. Some quotes:

ELKHART -- The statewide smoking ban that passed the Indiana House of Representatives Monday won't affect local ordinances in Elkhart and Goshen.

Both are tougher than the state's proposal, which still has to pass the Senate -- a place where it's died at least five times in the past.

The much-watered-down ban passed the House by a vote of 68-31 Monday. House Bill 1018 was amended to exempt bars, casinos, nursing homes, private clubs and tobacco retailers. * * *

One amendment that did not pass, according to Mark Potuck, who leads Tobacco Control of Elkhart County, would have allowed the state law to pre-empt local ordinances, including retroactively.

Defeat of the amendment "was so important. What that means, if they would have gotten that pre-emption amendment, then no other municipality could have a stronger ordinance than the state ordinance," Potuck said.

Making it retroactive meant that cities with much stronger ordinances such as Elkhart and Bloomington "could have been reversed. As it worked out, that amendment was defeated," he said.

Therefore, there won't be any impact on Elkhart or Goshen's ordinances if the state law passes, Potuck said.

Unless, that is, someone decided to change the ordinance.

Posted by Marcia Oddi on Thursday, February 03, 2011
Posted to Indiana Law

Ind. Decisions - More on: Supreme Court reaches decision on Bargersville annexation dispute [Updated]

Updating yesterday's ILB entry reporting that the Supreme Court had split 2-2 in the Bargersville annexation dispute and so the Court of Appeals opinion was reinstated -- the question is, when was the last time something similar happened?

The answer is, not that long ago. See this ILB entry from Nov. 17, 2010, where the Chief Justice had recused himself in the Brown County fire district case, and the remaining justices also split 2-2.

[Updated at 1:20 pm]
The Order filed Jan. 29, 2010 has now been posted in the Bargersville case. Access it here. It reads:

On December 10, 2010, we granted transfer of jurisdiction over this appeal. See Appellate Rules 56(B) and 58(A). After further review, including oral argument, the Court is evenly divided.

Accordingly, the Court of Appeals opinion reported as City of Greenwood v. Town of Bargersville, 930 N.E.2d 58 (Ind. Ct. App. 2010), is no longer vacated and is REINSTATED as Court of Appeals precedent. See App. R. 58(A) & (C).

This appeal is at an end. The Clerk is directed to certify this appeal as final and to send copies of the order to the Hon. Thomas K. Milligan, Special Judge, Johnson Superior Court; to the Johnson Superior Court; to the Hon. Margret G. Robb, Chief Judge, Indiana Court of Appeals; to Steve Lancaster, Court of Appeals Administrator; and to all counsel of record.

Posted by Marcia Oddi on Thursday, February 03, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Bill would expand campus police powers"

Sophia Voravong of the Lafayette Journal Courier reports today on HB 1406:

which would give police officers at both public and private colleges and universities statewide the same authority as city and county officers throughout Indiana.

The decision to expand jurisdiction would ultimately be left up to each school's board of trustees, said state Rep. Randy Truitt, R-West Lafayette, the bill's author.

[Purdue Chief John Cox] and West Lafayette Police Chief Jason Dombkowski are among those expected to testify at a committee hearing next week on House Bill 1406. The hearing was rescheduled from this past Tuesday because of the winter storm.

"I know there have been a large number of requests made from nearby municipalities to Purdue University for use of its resources," Truitt said Wednesday. "It's crazy to have this jurisdictional obstacle."

Cox said Purdue did not lend its drug-detection K9 unit to Montgomery County because if an arrest were made based on what the dog found, it could potentially harm the prosecutor's case.

Posted by Marcia Oddi on Thursday, February 03, 2011
Posted to Indiana Law

Ind. Courts - "Errors found in Indiana state lab toxicology tests: Mistakes that audit uncovered could lead to overturned verdicts"

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

The first major report from an audit of the Indiana State Department of Toxicology further brings into question the validity of potentially hundreds of drug and alcohol tests performed at the lab in recent years.

The findings from the audit, provided to The Indianapolis Star, showed errors in about 200 of 2,000 marijuana tests reported to law enforcement as having positive results. That includes about 50 described as "a conscious manipulation of results" by lab workers. * * *

[Former Marion County Prosecutor Scott Newman, who was hired to fix the agency] acknowledged there is potential for numerous verdicts to be overturned and cases to be dismissed, although not every error is necessarily connected to a wrongful conviction. Some of the problems may not be significant enough to change the outcome of cases. * * *

Newman said the agency is notifying lawyers involved in the 200 cases and preparing for an onslaught of inquiries, including those from defense attorneys who want their own expert to review test results.

The audit eventually will cover every case from 2007 to 2009 in which the lab reported a positive result -- more than 10,000 overall. But Newman said the initial findings are troubling enough that he probably will extend the audit back to 2006. The audit, conducted by outside scientists, is of paper records. * * *

In addition to notifying prosecutors and defense attorneys, Newman said there is also the complex task of working with lawyers on a plan for uniform standards for handling legal challenges. That plan, he said, should "ensure there's some fundamental fairness about what's going on statewide."

Newman said he has begun working on suggestions based on the degree of error by the lab and the seriousness of the crime. That would help determine what role a potentially flawed test result played and whether a case is dismissed outright or fought in court.

[Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council] said that although it will be important for the legal community to work out basic guidelines for handling troubled cases, most will have to be sorted out individually.
Other questions remain

Another question is what to do about guilty pleas that might have been influenced by preliminary test results reported by the Department of Toxicology without the more detailed, and required, confirmatory testing.

Also unclear: the cost to taxpayers for fixing the errors by Indiana University and the department, and where the audit will lead.

"Everybody asks, 'How far back do you go to satisfy the urge for justice?' " Newman said. "There's really no legal answer to that question. Anybody who suffers a continuing legal disability because of a bad lab result deserves relief."

Posted by Marcia Oddi on Thursday, February 03, 2011
Posted to Indiana Courts

Wednesday, February 02, 2011

Not law - "Drivers, homeowners stuck in ice"

This WTHR News 13 story, headed "Drivers, homeowners stuck in ice." gives an idea of what I was talking about earlier today.

Also, when I tried to log on to the General Assembly site early this morning, to see if committee meetings were canceled, I had a lot of trouble and nearly posted that the state site was down. I just found the explanation here, in a CNHI story reported by Maureen Hayden, posted this afternoon in the Clark County Evening News:

INDIANAPOLIS — A second day into a nasty winter storm brought some unexpected good news to state homeland security director Joe Wainscott: Heavy Internet traffic had nearly shut down the state government website.

The cause: a huge number of people were heeding Wainscott’s advice to check an online travel advisory map — posted and updated by his department —  before they ventured from home.

Posted by Marcia Oddi on Wednesday, February 02, 2011
Posted to General News

Courts - More on: "The Health Care Ruling: The Experts Speak"

Updating this ILB entry from Feb. 1, the WSJ Law Blog has another useful post on the topic today, this one headed: "Two Days After the Big Health-Care Ruling, Many Questions, Few Answers." A quote:

So for now, it’s mostly about sitting back and watching the appeals play out. Oral arguments in Virginia, for instance, are slated for May.

And what happens in the interim? According to this Bloomberg story, many states are mulling over whether the law remains enforceable in light of Judge Vinson’s ruling. Click here for a NYT story today addressing some of the same issues.

Utah Attorney General Mark Shurtleff, in an interview Tuesday with Bloomberg, said: “The question is: Is the law stayed in the 26 states? That needs to be resolved.”

So far, it’s not exactly clear. Judge Vinson shot down the law as it’s applied to the 26 states who joined the suit. But in all likelihood, the U.S. government will ask the 11th Circuit to stay the effect of the ruling pending appeal. Appellate courts often stay the effect of lower court rulings pending appeal in order to, among other things, protect continuity.

Indiana is one of the 26 states that was a party to the lawsuit. Here is Attorney General Zoeller's press release from Jan. 31, 2011.

Posted by Marcia Oddi on Wednesday, February 02, 2011
Posted to Courts in general

Ind. Gov't. - "Census Bureau to Release Local 2010 Census Data for Arkansas, Indiana, Iowa and Maryland"

The data needed for redistricting will be released next week, according to this post on the U.S. Census Data page. Some quotes:

Next week, the U.S. Census Bureau anticipates releasing local-level 2010 Census population counts for Arkansas, Indiana, Iowa and Maryland. For each state, the Census Bureau will provide summaries of population totals, as well as data on race, Hispanic origin and voting age. These data will be presented for multiple geographies within the state, such as census blocks, tracts, voting districts, cities, counties and school districts. Later this week, the Census Bureau may also announce additional states anticipated for release next week. * * *

Each state's geographic products and redistricting data are first delivered to the state's leadership, such as the governor and majority and minority leaders in the state legislative body. Upon confirmation of delivery to the state leadership, we will release a news release with five custom tables of data. At that time, we will release the full data set to our FTP download site. Within 24 hours, the full set of five detailed tables will also be available to the public online at http://factfinder2.census.gov.

See also this page.

Posted by Marcia Oddi on Wednesday, February 02, 2011
Posted to Indiana Government

Ind. Decisions - Supreme Court reaches decision on Bargersville annexation dispute

On Jan. 20, 2011 the Supreme Court heard oral argument in the case of City of Greenwood v. Town of Bargersville. (Here is a list of earlier ILB entries.)

The Court apparently came to its conclusion on Saturday, January 29, 2011. There is no ruling or order available online, but the information may be gleaned from the Clerk's docket. Justice Sullivan had recused himself on the day of the oral argument, January 20, 2011. On Jan. 29, when the remaining justices split 2-2, Appellate Rule 58C kicked in and the Court of Appeals decision was reinstated (see quotes from the now certified COA decision below). First, here are the pertinent docket provisons:

DATE TEXT
1/07/11 ISSUED THE ENCLOSED ORDER REVISING TIME FOR ORAL ARGUMENT:
1/07/11 THE COURT HAS DETERMINED THAT THE TIME SCHEDULED FOR THE
ORAL ARGUMENT IN THE ABOVE-CAPTIONED CASE NEEDS TO BE CHANGED.
THE ARGUMENT, WHICH WILL STILL BE HELD IN THE COURTROOM OF THE
INDIANA SUPREME COURT, 317 STATEHOUSE, 200 W. WASHINGTON ST.,
INDIANAPOLIS, INDIANA, NOW WILL TAKE PLACE AT THE FOLLOWING
DATE AND TIME:
JANUARY 20, 2011, AT 10:45 A.M.
ALL OTHER ASPECTS AND DIRECTIVES CONTAINED IN THIS COURT'S
PREVIOUS "ORDER SCHEDULING ORAL ARGUMENT" REMAIN IN PLACE.
RANDALL T. SHEPARD, CHIEF JUSTICE
(ORDER REC'D. 1/7/11 AT 10:00 A.M.) ENTERED 1/7/11 KM
1/07/11 ****** ABOVE ENTRY MAILED ******
1/11/11 APPELLEE'S_ ACKNOWLEDGMENT OF ORDER SETTING ORAL ARGUMENT (6)
CERTIFICATE OF SERVICE (6) BY MAIL 1-11-11
ENTERED ON 01/11/11 LH
1/13/11 APPELLEE'S ACKNOWLEDGMENT OF ORDER SETTING ORAL ARGUMENT (6)
CERTIFICATE OF SERVICE (6) MAIL 01/13/11
ENTERED ON 01/13/11 MS
1/14/11 AMICI CURIAE ACKNOWLEDGMENT OF ORDER SETTING ORAL ARGUMENT (6)
CERTIFICATE OF SERVICE (6) BY MAIL 1-14-11 *INDIANA MUNICIPAL
MANAGERS ASSN, ET AL* ENTERED ON 01/14/11 LH
1/20/11 ISSUED THE ENCLOSED ENTRY:
1/20/11 IT IS MY PRESENT INTENTION NOT TO PARTICIPATE IN THIS
CASE.
FRANK SULLIVAN, JR.
JUSTICE OF THE INDIANA SUPREME COURT
(ENTRY REC'D. 1/20/11 AT 9:45 A.M.) ENTERED 1/20/11 KM
1/20/11 ****** ABOVE ENTRY MAILED ******
1/29/11 ISSUED THE ENCLOSED ORDER:
1/29/11 ACCORDINGLY, THE COURT OF APPEALS OPINION REPORTED AS CITY
OF GREENWOOD V. TOWN OF BARGERSVILLE, 930 N.E.2D 58 (IND. CT.
APP. 2010), IS NO LONGER VACATED AND IS REINSTATED AS COURT OF
APPEALS PRECEDENT. SEE APP. R. 58(A) & (C).
THIS APPEAL IS AT AN END.
RANDALL T. SHEPARD, CHIEF JUSTICE
SHEPARD, C.J., AND DAVID, J., WOULD AFFIRM THE TRIAL COURT.
DICKSON AND RUCKER, JJ., WOULD REVERSE THE TRIAL COURT.
SULLIVAN, J., DID NOT PARTICIPATE.
(ORDER REC'D 01/31/11 AT 9 A.M.) ENTERED ON 01/31/11 KJ
1/31/11 ****** ABOVE ENTRY MAILED ******
From the COA opinion, certified Feb. 1, 2010:
The City of Greenwood, Indiana ("Greenwood'), Felson and Jane Bowman, and Zinkan & Barker Development Company, LLC ("ZBDC") (collectively, "Appellants"), appeal the trial court‘s order denying their cross-motion for summary judgment and granting the motion for summary judgment filed by the Town of Bargersville, Indiana ("Bargersville"), in which the court upheld Bargersville‘s annexation of 1847 acres ("the Territory') within three miles of Greenwood‘s city limits and voided Greenwood‘s attempted annexation of the Territory. Because we find as a matter of law that fewer than 51% of the Territory‘s landowners consented to Bargersville‘s annexation pursuant to Indiana Code Section 36-4-3-9, we reverse and remand. * * *

In sum, based solely on the plain language of the sewer service agreements affecting at least 407 of the parcels in the Territory – that is, at least 55% of the total number of parcels – we conclude as a matter of law that those agreements (as well as any other agreements with the same or similar wording) do not constitute valid consent to Bargersville‘s annexation pursuant to Indiana Code Section 36-4-3-9. In so concluding, we express no opinion on Appellants‘ collateral arguments regarding the validity of those agreements. Likewise, we express no opinion on the validity of the remaining documents on which both the Bargersville Town Council and the trial court relied in finding that 51% of the landowners in the Territory had consented to Bargersville‘s annexation. Even assuming the validity of those documents, far fewer than 51% of the landowners in the Territory consented to Bargersville‘s annexation. Therefore, we reverse the trial court‘s grant of summary judgment in favor of Bargersville and remand for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Wednesday, February 02, 2011
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

Courts - "Justices weigh rights to Lake Erie beachfront access"

This entry this morning from How Appealing compiles a number reports on a case argued yesterday before the Ohio Supreme Court re Lake Erie property lines.

Posted by Marcia Oddi on Wednesday, February 02, 2011
Posted to Courts in general

Law - "Iowa lawmakers get price-tag for serious sex offender monitoring"

Sentencing Law & Policy Blog this morning quotes a DesMoines Register story headlined "Tracking Iowa sex offenders to cost millions" in an entry recording how the price of expanded monitoring of sex offenders is starting to come into focus for legislators in at least one state.

Posted by Marcia Oddi on Wednesday, February 02, 2011
Posted to General Law Related

Ind. Courts - "Judge: Not enough jurists for cases in Elkhart County"

So reports Justin Leighty today in the Elkhart Truth:

GOSHEN -- Elkhart County has the equivalent of 10.5 judges doing the work of nearly 18 judges.

That's what Elkhart Circuit Judge Terry Shewmaker told county officials to set the stage for discussion Thursday morning about increasing efficiency in the local justice system.

Speaking in advance of Thursday's county summit meeting, Shewmaker said that while the county has to fund many court operations, county officials don't have a role to play in how those courts are run. "Any change will have to come from the state," Shewmaker said.

In the letter to county leaders, he wrote, "Clearly, there are many cases to resolve; however, we continue to be innovative and efficient in disposing of cases."

The courts continued to reduce the number of pending cases in 2008 and 2009 (the latest year numbers were available) by more than 500 cases each year, Shewmaker wrote.

Shewmaker told county leaders in his letter that the county's cost-per-minute on cases is much less than comparable counties. He said judges are doing more to get criminal defendants to reimburse the county while they're on probation for the services of the public defender's office. Judges are also working to collect unpaid fees for community-corrections programs, he said.

Probation user fees have been increased to the maximum allowed under state law, Shewmaker wrote.

While cases in Elkhart County expanded by 31 percent over the last decade, nearly double the amount of court growth statewide, "We are doing the best we can with the resources we have," Shewmaker wrote. The county court system "is operating in an effective and efficient manner. We as judges continue to explore new ways to streamline the judicial process."

Posted by Marcia Oddi on Wednesday, February 02, 2011
Posted to Indiana Courts

Ind. Courts - Court closures

Marion County courts closed today; SD Indiana on a 2-hour delay.

ILB: I live in Indy very close to downtown and there are at least 2 inches of ice on everything, sidewalks, steps, cars, driveways. May not get out for days if weather remains very cold, as is predicted.

Posted by Marcia Oddi on Wednesday, February 02, 2011
Posted to Indiana Courts

Ind. Gov't - General Assembly cancelled again today

From the website:

The House and Senate will be closed today, and all committees are cancelled for Wednesday February 3rd. The Senate WILL conduct committees and session as scheduled on Thursday. The House will convene at 10AM on Thursday. Strong possibility the Senate will add a session day next Friday.

Posted by Marcia Oddi on Wednesday, February 02, 2011
Posted to Indiana Government

Tuesday, February 01, 2011

Ind. Courts - Appellate Courts closed Wednesday

This just in:

The Indiana Supreme Court, Court of Appeals and related agencies, including the Clerk's Office, will be closed on Wednesday, February 2nd due to the weather.

The Courts are scheduled to open Thursday, February 3rd at 8:30 a.m. EST.

Posted by Marcia Oddi on Tuesday, February 01, 2011
Posted to Indiana Courts

Ind. Gov't. - Why doesn't the State of Indiana declare a snow day? Ever?

Jim Shella writes in his blog today:

I’m already hearing from state employees who wonder why they have to report for work and lawmakers don’t.
I vaguely remember the reason - feel free to help me out.

Many years ago, I believe it was when Otis Bowen was Governor and I worked in the Budget Agency, there was a big snow and the Governor declared a snow day. Later, if I remember right, state employees in state institutions (there were many state mental hospitals back then) and in state correctional institutions, among others, brought suit. They had been required to work and deserved compensatory pay. The upshot, it cost the State a lot of money to declare a snow day, and it was decided never to do it again.

[More] Two notices just received:

Re the General Assembly, see this entry from earlier today.

Posted by Marcia Oddi on Tuesday, February 01, 2011
Posted to Indiana Government

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

In U.S. v. Bullock (ND Ind., Springmann), a 39-page opinion, Judge Tinder writes:

Derrick Bullock pleaded guilty to possession with intent to distribute at least five grams but less than fifty grams of cocaine base (“crack”) in violation of 21 U.S.C. § 841(a)(1). His plea was conditioned on his ability to appeal the district court’s denial of his motion to suppress evidence of the crack that led to his conviction. The events giving rise to Bullock’s arrest began when Detective John Greenlee of the Fort Wayne Police Department received an anonymous tip that someone by the name of “Quick” was selling cocaine from a residence on Euclid Street. Based on the information provided by the tipster, Greenlee was able to determine the address of the residence and that “Quick” was Bullock. Greenlee began surveillance of the residence and corroborated the tip by observing Bullock leaving the residence on several occasions and engaging in activity indicative of drug dealing. Armed with this information, Greenlee obtained a warrant to search the Euclid Street address.

Prior to execution of the warrant, during pre-raid surveillance, Greenlee observed Bullock leaving the residence in a vehicle driven by Sabrina Wilhelm, the lessee of the residence. Greenlee was aware that Wilhelm did not have a valid driver’s license, so he instructed uniformed officers to stop the vehicle. Officers made the stop, transported Bullock back to the residence, and detained him in the squad car while they executed the search warrant. Upon finding marijuana in plain view on the dining room table in the residence, along with sandwich baggies containing a small amount of crack and a scale in another part of the residence, officers arrested Bullock for visiting a common nuisance under Indiana Code § 35-48-4-13(a). Bullock was taken to the police station where a search of his person revealed sixteen individually wrapped baggies of crack.

On appeal, Bullock claims that the crack was obtained as the result of an unlawful detention without reasonable suspicion and subsequent unlawful arrest without probable cause in violation of the Fourth Amendment. The district court disagreed and found that there was reasonable suspicion to detain Bullock during the search, relying on Michigan v. Summers, 452 U.S. 692 (1981), where the Court held that police lawfully detained the defendant (who was leaving his residence as officers approached) while they executed a valid search warrant of the residence. The district court further found that probable cause existed to arrest Bullock for visiting a common nuisance under Indiana law after officers found marijuana in plain view and other evidence of more widespread, continuous, and recurrent drug activity within the residence. We affirm. Bullock’s detention was lawful under the principles set forth in Terry v. Ohio, 392 U.S. 1 (1968), and for similar reasons was justified under Summers. We also find that his subsequent arrest was supported by probable cause.

Posted by Marcia Oddi on Tuesday, February 01, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - A fascinating look at a pre-1851 corporation

This week's subscription-only Indiana Legislative Insight has this item:

In a report released last week, "The Office of the Inspector General recommends legislative consideration of whether the statutory language defining the Indiana Historical Society as a 'politic and corporate politic' is intended by the Indiana Legislature," detailing a litany of reasons why the Historical Society should be so considered.

The new OIG report also notes that the Historical Society "contends that although it is a body politic and corporate, the term should be interpreted as it was at the time the IHS was created in 1831 and not as it was understood at the time the IHS's enabling legislation was revised as recently as 1982." Indeed, a detailed five-page letter from IHS counsel at Barnes & Thornburg methodically lays out the case for why it is "a private entity incorporated under the Indiana Nonprofit Act of 1991 [and] has existed as a separate corporate entity since its incorporation in 1831. No historical or statutory provision has ever included the Society as an agency or instrumentality of the State."

Here is the Dec. 30, 2010 Inspector General Report on the Indiana Historical Society.

The ILB was particularly struck by item C3 on p. 5 of the OIG's Report, one of the OIG findings "address[ing] the specific issue of whether IHS is a body politic and corporate under the modern understanding of the term."

The OIG argues that the placement of the IHS provisions within the numbering system of the Indiana Code, and the statutory headings prefacing the IHS provisions, were to be used in the construction of the law. Specifically:

Contrary to IHS’s contention that it is a “private corporate entity,” it is addressed within the statutory article “public corporations and associations.” IC 23-6 (emphasis added).

This is significant because statutory section headings are tools available for the resolution of doubt about the meaning of a statute. Florida Department of Revenue v. Piccadilly Cafeteria’s, Inc., 128 S.Ct. 2326 (US 2008); Dowd v. Johnston, 221 Ind. 398, 47 N.E.2d 976 (1943); City of Indianapolis v. Evans, 216 Ind. 555, 24 N.E.2d 776 (1940).

Maybe in Florida. Certainly not in Indiana, particularly after the adoption of the Indiana Code in the 1970s.

Besides, in the Florida case cited, Piccadilly, at p. 2336, the Supreme Court of the United States is construing a section of the United States Code, specifically, section 1146(a) of the bankruptcy code.

Further, although unfortunately the ILB does not have ready access to the two early 1940s Indiana cases cited by the OIG, it does have access to the Indiana Code, which provides at IC 1-1-1-5(f):

(f) The headings of titles, articles, and chapters as they appear in the Indiana Code, as originally enacted or added by amendment, are not part of the law and may be altered by the lawful compilers, in any official publication, to more clearly indicate content. These descriptive headings are intended for organizational purposes only and are not intended to affect the meaning, application or construction of the statute they precede.

Posted by Marcia Oddi on Tuesday, February 01, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Walsh & Kelly, Inc. v. International Contractors, Inc., et al., a 10-page opinion, Judge Riley writes:

Appellant-Plaintiff, Walsh & Kelly, Inc. (Walsh), appeals the trial court's judgment in favor of Appellee-Defendant, Signature Properties, Inc. (Signature), with respect to Signature's claim that it was not fully indemnified for its damages by a collateral assignment agreement and with respect to Signature's claim that Walsh slandered the title of Signature's property. We affirm.

Walsh raises two issues on appeal, which we restate as follows:(1) Whether the trial court erred in holding that Signature's collateral assignment agreement with International Contractors, Inc. (International) did not fully indemnify Signature; and(2) Whether the trial court erred in holding that Walsh was liable to Signature for slander of title.

NFP civil opinions today (2):

David Harrold v. Robert Thornburg, Personal Rep. of the Estate of Roland Walker (NFP)

L.C. v. R.C. (NFP)

NFP criminal opinions today (2):

Charles Pennington v. State of Indiana (NFP)

Joshua Hooten v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 01, 2011
Posted to Ind. App.Ct. Decisions

Courts - "The Health Care Ruling: The Experts Speak"

Ashby Jones of the WSJ Law Blog has a useful survey of reactions this morning. It also has two earlier entries, one labeled "Key Excerpts From Monday’s Health-Care Ruling," and the other, "Florida Federal Judge Strikes Down Health Care Law."

Posted by Marcia Oddi on Tuesday, February 01, 2011
Posted to Courts in general

Ind. Law - Indiana Law on towing of vehicles left on private property

The blog Ogden on Politics had an interesting entry yesterday headed "Delaware and South Towing Company Violates Indiana Law; Tows Vehicles in Violation of 24 Hour Tagging Rule."

Posted by Marcia Oddi on Tuesday, February 01, 2011
Posted to Indiana Law

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

Updating this ILB entry from Jan. 30, 2011, an editorial today in the Fort Wayne Journal Gazette, headed "Costly, unneeded English-only bill," begins:

Sen. Mike Delph, R-Carmel, claims Hoosiers are sick of “pressing 1 for English.” His solution is an immigration bill that, if passed, won’t solve any illegal immigration problems but would cost state taxpayers money and pigeonhole Hoosiers as bigots.

With action coming on Delph’s bill, SB 590, another piece of legislation promoting intolerance, HB 1255 authored by Rep. Suzanne Crouch, R-Evansville, is already making its way through the legislature with too few obstacles. That bill would require that state documents be printed in English only. It passed in the House 63-26 and now heads to the Senate.

Posted by Marcia Oddi on Tuesday, February 01, 2011
Posted to Indiana Law

Ind. Gov't. - "Wood-fired boiler rules postponed till March "

A story by Gitte Laasby in today's Gary Post Tribune begins:

State officials were scheduled to adopt Indiana’s first state-wide rules for use of wood-fired boilers Wednesday, but winter storms have postponed the meeting till March.

All of Indiana’s major environmental groups expressed concerns about the controversial rules, saying they are inadequate to protect neighbors from smoke that’s dangerous to people’s health.

For background, begin with this Jan. 16, 2011 ILB entry.

Posted by Marcia Oddi on Tuesday, February 01, 2011
Posted to Environment | Indiana Government

Ind. Gov't. - House of Representatives closed today [Updated]

The House of Representatives is closed today, Tuesday. No word yet on the Senate.

[Update at 9:12] Jim Shella is now reporting the entire General Assembly is closed, but state employees are working.

Now on the GA website:

All House and Senate committees and sessions are cancelled for today. Wednesday committee meeting will proceed as planned unless cancelled by the chair. Senate and House session will convene on Thurday February 3, 2011.
"Wednesday committee meeting will proceed as planned unless cancelled by the chair." Really?

Posted by Marcia Oddi on Tuesday, February 01, 2011
Posted to Indiana Government