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Thursday, March 31, 2011

Ind. Courts - "Spencer County, AK Steel approach trial on tax deal: A jury may soon decide whether AK Steel will pay Spencer County more than $20 million in back taxes"l

This story today in the Evansville Courier & Press, reported by Mark Wilson. Also posted by the C&P, the May 21, 2009 Complaint filed by the Spencer Co. Redevelopment Comm. against AK Steel in Spencer Circuit Court, and the March 16, 2011 Trial Brief filed by the Redev. Comm. in the SD Indiana. Some quotes from the long story:

The Spencer County Redevelopment Commission filed a breach-of-contract lawsuit against the company in May 2009 in Spencer Circuit Court, alleging that AK Steel violated its tax incentive agreement by appealing its property tax bill. The case was soon moved to the U.S. District Court at Evansville, where it is now set for a jury trial April 11.

According to a trial brief summarizing Spencer County's arguments, the dispute began in 2004 when AK Steel filed a return for personal property tax that included depreciation that ultimately was denied by the county assessor.

According to the court record, the company allegedly was trying to take advantage of an optional personal property tax depreciation schedule created by the Indiana Legislature in 2003 for steel mills with blast furnaces that was intended to help the antiquated steel mills of northern Indiana.

AK Steel's Rockport Works, by comparison, was a state-of-the-art steel finishing facility built in 1997.

Indianapolis-based attorneys representing AK Steel in the suit did not return repeated telephone calls from the Courier & Press seeking comment. An attorney representing the county declined to comment because the case is pending.

Posted by Marcia Oddi on Thursday, March 31, 2011
Posted to Indiana Courts

Ind. Decisions - 7th Circuit reverses Indiana decision and directs prisoner's release by State of Indiana ...

In Jones v. Basinger (SD Ind., Young), a 48-page opinion, Judge Hamilton writes:

In 2004, petitioner Antonio Jones was convicted in an Indiana state court for his involvement in a horrific robbery that culminated in four murders. At his trial, two police detectives testified in detail about an informant’s double-hearsay statement accusing Jones as the leader of the robbery and murders. That testimony was allowed on the theory that it was offered not to show the truth of the informant’s statement but for the purpose of showing the course of the police investigation that led to Jones’ arrest. A divided Indiana Court of Appeals affirmed Jones’ conviction, and the state courts denied relief on post-conviction review. Jones petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that this testimony violated his Sixth Amendment right to confront the witnesses against him. The district court denied the petition without reaching the merits of Jones’ Sixth Amendment claim.

The trial record makes unmistakably clear that the informant’s double-hearsay against Jones was in fact used as substantive evidence to prove Jones’ guilt, in violation of his Sixth Amendment rights. The Indiana Court of Appeals’ failure to recognize this fact was an unreasonable failure to apply the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), to this case. Accordingly, we reverse and remand with instructions to grant the petition. * * *

Perhaps Jones is guilty of the crimes with which he has been charged. From the evidence presented at trial, that is a distinct possibility. “We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free.” Davis, 547 U.S. at 833. In this case, the Constitution demands that Jones have an opportunity to confront Parks if his statements to Lewis, as reported to the police detectives, are to be used as evidence against Jones. The Constitution makes no exception for Jones because the prosecution’s star witness was unsavory, because the prosecution’s case was otherwise weak, or because Jones was accused of especially heinous crimes.

We REVERSE and REMAND this matter with instructions to the district court to grant Jones’ habeas petition pursuant to 28 U.S.C. § 2254, directing the State of Indiana to release Jones within 120 days of the issuance of the mandate unless the State elects to retry Jones within that time.

ILB: I had hopes of finding the Court of Appeals opinion, but it was NFP and issued in 2005, before the Court began posting its NFPs online. However, I did find this.

Posted by Marcia Oddi on Thursday, March 31, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 19 NFP)

For publication opinions today (4):

In Indiana Dept. of Natural Resources v. Ronald W. Ritz and Sandra J. Ritz, a 20-page opinion, Judge Crone writes:

The Indiana Department of Natural Resources (“DNR”) and Ronald W. and Sandra J. Ritz each claim possession of a deed conveying ownership of a tract of real estate. DNR sought to develop this disputed real estate as part of its park system. The Ritzes removed DNR‟s survey equipment from the property and denied DNR employees access to the property. DNR filed suit against the Ritzes for ejectment and trespass. The trial court dismissed the suit for failure to prosecute. DNR appeals, asserting that the dismissal was an abuse of discretion. We conclude that the desirability of deciding this case on the merits is of particular import because of the alleged public interest in the disputed property. We also conclude that the prejudice to the Ritzes caused by DNR‟s delay in prosecuting the case is minimal and that DNR is now diligently pursuing the case. Therefore, even though the length of DNR‟s delay in prosecuting the case is considerable, we conclude that the trial court abused its discretion in dismissing the case. Accordingly, we reverse and remand for further proceedings.
In Thomas Dexter v. State of Indiana , an 11-page opinion, Judge May writes:
Thomas Dexter was convicted after a jury trial of Class A felony neglect of a dependent and found to be an habitual offender. He argues on appeal the trial court abused its discretion by permitting an expert to express an opinion concerning Dexter’s guilt, it abused its discretion by rejecting jury instructions on negligent conduct, and the evidence is insufficient to support the conviction and the habitual offender finding. We affirm.
In Michael B. Adams v. State of Indiana , a 5-page opinion, Judge May writes:
Michael B. Adams appeals his conviction of Class A misdemeanor possession of marijuana. He also appeals the trial court’s decision to suspend his driver’s license and registration pursuant to Ind. Code § 35-48-4-15. We affirm. * * *

Adams argues the phrase indicating suspensions should occur when a “motor vehicle was used in the commission of the offense,” Ind. Code § 35-48-4-15, is ambiguous. He asserts the statute does not make clear what role the motor vehicle must serve in the commission of the offense, nor does it define the nexus required between the offender and the motor vehicle. Ultimately, he urges us to hold the statute does not apply to him because he was a passenger in the car. We cannot agree. * * *

Based on the similarities in the language used by the legislature in the two statutes, we interpret similarly the statute at issue in this case. Ind. Code § 34-48-4-15 requires only that the vehicle be used in the commission of the crime. Pursuant to Ind. Code § 34-24-1-1, we have held mere transportation of an illegal substance from one place to another is sufficient to demonstrate the vehicle was used in the commission of the crime of possession. See Cantrell, 894 N.E.2d at 1086 (Ind. Ct. App. 2008) (vehicle used to facilitate the transportation when vehicle used to transport cocaine across state lines and back). We apply the same reasoning to the facts herein: marijuana was in the vehicle in which Adams was riding, and the vehicle was being used to transport the marijuana, thus Adams’ driving and registration privileges were properly suspended pursuant to Ind. Code § 35-48-4-15.

In Anjanette L. Silvers v. State of Indiana , a 6-page opinion, Chief Judge Robb writes:
Anjanette Silvers appeals the trial court’s order revoking her probation and ordering her to serve 180 days in jail. For our review, Silvers raises two issues, one of which we find dispositive and restate as whether Silvers validly waived her statutory right to representation by counsel at the probation revocation hearing. Concluding Silvers did not validly waive her right to counsel because the trial court failed to properly advise her concerning that right, we reverse and remand. * * *

For the above reasons, we reverse the revocation of Silvers’s probation and remand for a new hearing at which she may be represented by counsel. See Eaton v. State, 894 N.E.2d 213, 217-18 (Ind. Ct. App. 2008) (reversing and remanding when probationer received inadequate advisements during the probation revocation hearing and therefore did not waive the right to counsel voluntarily, knowingly, and intelligently), trans. denied.

NFP civil opinions today (3):

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

Paternity of B.P.; D.V. v. B.P. (NFP)

In Indiana Department of Natural Resources v. United Minerals Co., LLC (NFP), a 6-page opinion, Judge May writes:

The Indiana Department of Natural Resources (DNR) issued a Notice of Violation after a seismograph indicated United Minerals (United) exceeded the blast vibration limit at a mine it operated. United sought administrative review. After cross-motions for summary judgment, an administrative law judge (ALJ) affirmed the Notice of Violation. United sought judicial review, and the trial court set aside the ALJ’s decision and vacated the Notice of Violation. As the issues the parties present could not have appropriately been resolved on summary judgment, we reverse and remand for further proceedings. * * *

United and DNR disputed below, and continue to dispute on appeal, the validity of the seismographic reading on which the ALJ’s order is based – in other words, they disagreed on the factual inferences the ALJ should have drawn from the evidence. At the proceedings before the ALJ, both parties agreed “the underlying facts were not disputed and that the proceeding might be appropriately disposed of through summary judgment.” (App. at 21.) But even if the facts were undisputed, there was disagreement over the determinative inferences to be drawn from the facts – i.e., whether the reading that showed a violation was accurate or was an aberration because of the placement of the seismograph and the condition of the geophone. As these are determinations of ultimate facts, not legal decisions, summary judgment for either party was improper.

NFP criminal opinions today (16):

Kevin R. Ash v. State of Indiana (NFP)

Richard Emmons v. State of Indiana (NFP)

Terrance Tindall v. State of Indiana (NFP)

Edward Murrell v. State of Indiana (NFP)

Michael Vest v. State of Indiana (NFP)

Julius Finch v. State of Indiana (NFP)

Jerry Clark, Jr. v. State of Indiana (NFP)

Perry Roberson v. State of Indiana (NFP)

Emmett L. White v. State of Indiana (NFP)

Jeffrey L. Watson v. State of Indiana (NFP)

Joseph P. Holstead v. State of Indiana (NFP)

Roberto S. Campos v. State of Indiana (NFP)

Jerome Crowder v. State of Indiana (NFP)

Theodore T. Schwartz v. State of Indiana (NFP)

Randy Deal v. State of Indiana (NFP)

Timothy . Robertson v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 31, 2011
Posted to Ind. App.Ct. Decisions

Law - More on "Wisconsin Union Law Battle Has Republicans Facing New Hurdle"

Updating this entry from earlier today, Dane County Circuit Judge Maryann Sumi has reiterated her earlier ruling and this time, according to the Milwaukee Journal Sentinel's Patrick Marley:

Gov. Scott Walker's administration said it would comply and discontinue the implementation of the law.

"Based on the briefs of counsel, the uncontroverted testimony, and the evidence received at the March 29, 2011, evidentiary hearing, it is hereby DECLARED that 2011 Wisconsin Act 10 has not been published within the meaning of (state statutes), and is therefore not in effect," Dane County Circuit Judge Maryann Sumi ruled in a two-paragraph order.

Posted by Marcia Oddi on Thursday, March 31, 2011
Posted to General Law Related

Ind. Law - "Gay marriage ban is simply wrong for state"

Erika D. Smith , the Indianapolis Star's new metro columnist, and who was their must-read technology columnist until recently, is off to a great start with this column today on what a constitutional ban on gay marriage would and would not accomplish in Indiana.

Posted by Marcia Oddi on Thursday, March 31, 2011
Posted to Indiana Law

Ind. Gov't. - More on: "Critics: Potential problems at toxicology lab weren't disclosed"

Just got to the end of the great, very, very long toxicology lab scandal story I blogged about this morning.

Here is another, important quote from the conclusion:

Last week, IU began sending letters to prosecutors informing them of specific cases with questionable test results and a description of the lab's error. About 200 such letters will go out, spokesman Larry MacIntyre said.

IU is leaving it to prosecutors to assess the legal significance of the errors and to inform defense attorneys because the lab doesn't have the defense attorneys' contact information. If a prosecutor doesn't contact the defense attorney, MacIntyre said, IU will attempt to do so.

Defense attorneys are still skeptical they'll get the full story, especially given how long it took for any information to be made public.

"My reaction," said Tompkins, the defense attorney, "is that I am genuinely distressed at the state of ethics in my profession."

Hey, how hard can it be to promptly notify the defense attorneys, and not rely on the prosecutors (again) to relay the information?!

Posted by Marcia Oddi on Thursday, March 31, 2011
Posted to Indiana Government

Ind. Gov't. - "Critics: Potential problems at toxicology lab weren't disclosed"

Mark Alesia and Tim Evans of the Indianapolis Star have another report today on the state toxicology lab scandal. (Here are earlier ILB entries re "toxicology lab".) From today's lengthy story:

Leaders of the state prosecuting attorneys association and other prosecutors were told more than two years ago about concerns regarding Indiana State Department of Toxicology test results, which are used as evidence in criminal cases.

More troubling, say legal experts and defense attorneys, is that the prosecutors kept that information to themselves.

Instead of informing defense attorneys or pushing for an investigation of the lab's work, prosecutors continued to use the results -- often critical to winning convictions or leveraging plea agreements.

Not sharing the information, defense attorneys contend, smacks of a cover-up. They see it as an attempt to quickly and quietly move on without calling into question the work of the lab.

Legal experts and defense attorneys said that's a potential violation of ethical and legal standards that require prosecutors to disclose anything that could raise questions about the validity of evidence. It's a standard that demands prosecutors place the pursuit of justice over winning cases.

This is a "must read."

Posted by Marcia Oddi on Thursday, March 31, 2011
Posted to Indiana Government

Ind. Courts - Proposed increases in the automated recordkeeping fee an issue again this year

Again this year a request is before the General Assembly to raise the automated recordkeeping fee, collected by the county clerks for each case filed, but sent on in its entirety to the state, mostly to fund the JTAC project. The proposal as it currently stands would raise the $4.00 per case (which it is scheduled to revert to this July 1st) to, as shown in the chart below, $6.00 per case until July 2013.

Annual Automated Record Keeping Fee Through the 21st Century
2001 $2 annually
2002 $5 annually until 7-1-03, then $7 annually until 7-1-09, then $4 annually thereafter.
2004 $7 annually until 7-1-09, then $4 annually thereafter.
2007 $7 annually until 7-1-11, then $4 annually thereafter.
2009 $7 annually until 7-1-09, then $10 until 7-1-13, then $7 annually thereafter. [did not pass]
2011 $7 annually until 7-1-11, then $6 until 7-1-13, then $4 annually thereafter. [proposed - SB 301]

The chart shows the current language of SB 301, as it passed the Senate.

The bill is before the House Courts Committee this afternoon at 3:30 pm in Room 156-C. Amendments may be considered.

As SB 301 was introduced in the Senate, it instead would have raised the fee to $10 from July 1, 2011 to June 30, 2015. Thereafter, the fee would have gone down, but only down to $7.

The House committee heard testimony on SB 301 last Thursday. It was quite interesting; it is a pity no records are kept of committee hearings.

Posted by Marcia Oddi on Thursday, March 31, 2011
Posted to Indiana Courts

Law - "Wisconsin Union Law Battle Has Republicans Facing New Hurdle"

Amazing things happening in Wisconsin and its equivalent to our Legislative Services Agency seems to be in the middle, defying a court order. See the story yesterday here, quoted in the Huffington Post. The relevant parts:

So far Republicans have managed win after win – overcoming massive protests and outmaneuvering Democrats to push their plan through the Legislature, then finding a way to at least temporarily get around a court order that would have kept the explosive union bargaining law from taking effect.

Now they face another court order blocking the law, which would strip most public employees of nearly all their collective bargaining rights. And this time the judge has said there will be consequences for violators.

Still, the matter is far from settled. Republicans haven't said what their next move will be, but it's likely the law's legitimacy will be decided by the state Supreme Court.

Dane County Circuit Judge Maryann Sumi chastised state officials Tuesday for ignoring her earlier order to halt the law's publication.

"Apparently that language was either misunderstood or ignored, but what I said was the further implementation of (the law) was enjoined," Sumi said during a hearing. "That is what I now want to make crystal clear."

Republican lawmakers pushed the law through the Legislature earlier this month despite massive protests that drew up to 85,000 people to the state Capitol. After diffusing a Democratic filibuster in the Assembly, Republicans used a parliamentary procedure in the Senate to circumvent a Democratic boycott meant to prevent a vote.

Walker signed the bill on March 11, triggering a number of lawsuits from opponents. Sumi issued a temporary restraining order blocking Secretary of State Doug La Follette from publishing the bill – typically the last step before a law takes effect.

Republicans got around that by having the Legislative Reference Bureau, another state agency, publish the bill on Friday. They declared victory, saying the law went into effect on Saturday.

Sheila Kennedy takes note of this incident in her blog this morning, writing:
In the latest bizarre twist from Wisconsin, the Governor and GOP leadership simply ignored an order of the federal court. The court had issued a stay of the law repealing collective bargaining rights, pending an evidentiary hearing on whether it had been passed in a manner consistent with the state’s open door law. The legislature could have abided by the order, or it could have held another vote, after proper notice. Instead, those in charge decided to thumb their noses at a court order.
The blog entry is headed "Abuses of Power" and begins:
For the past couple of months, I have been watching the political shenanigans in Wisconsin, Indiana, Ohio, Michigan, Maine and elsewhere with increasing disbelief, trying to figure out what has prompted such disdain for civility, democratic process and individual rights.

Posted by Marcia Oddi on Thursday, March 31, 2011
Posted to General Law Related

Ind. Law - "The bill's passage, Turner said, 'will make Indiana one of the most pro-life states in America'"

A quote from a story today by Heather Gillers in the Indianapolis Star. More:

Legislation that would make the state's abortion laws among the most restrictive in the nation overwhelmingly cleared the Indiana House on Wednesday.

Lawmakers voted 72-23 in favor of House Bill 1210, which shortens the window during which abortions are legal and requires that women seeking abortions be told that the procedure carries a risk of breast cancer.

"It is our responsibility to protect the unborn," said the bill's author, Rep. Eric Turner, R-Cicero. "I hope with this legislation, women will be able to make a more informed decision about their pregnancy, and I hope ultimately we'll have fewer abortions in this state." * * *

The Senate abortion bill, Senate Bill 328, sponsored by Sen. Patricia Miller, R-Indianapolis, was approved 39-9 in February. Like the House bill, it requires abortion providers to tell women that the procedure carries a risk of breast cancer and that a fetus can feel pain. Women also must be told that couples are "willing and waiting" to adopt children and that those couples may pay for prenatal care and childbirth.

Other provision of HB 1210 include:

The Indiana State Department of Health would be required to post information about fetal development and abortion on its website.

The attorney general or a county prosecutor would be able to file an injunction against any abortion provider they think has not followed the rules in the bill.

Abortions would be illegal after 20 weeks, except to preserve the life of the woman. Current state law prohibits abortions after viability, which is determined by the doctor, usually at about 24 weeks. Ninety-seven percent of abortions in the state occur before 13 weeks, according to Planned Parenthood of Indiana.

Many of the measures contained in the House and Senate bills have been longtime goals of anti-abortion activists. Their campaign got a boost this year when 19 new Republicans were elected to the House and six new Republicans to the Senate. * * *

Betty Cockrum, president of Planned Parenthood of Indiana, called Wednesday "a pretty bad day for women and families and the doctor-patient relationship."

"It is alarming to watch lawmakers vote against medically accurate information," she said. "We have all these lay persons who are writing scripts into Indiana law and mandating that doctors read them to their patients when they're not fact-based. . . . It has no place in public health."

House members voted down an amendment by Rep. Peggy Welch, D-Bloomington, a nurse who supports the bill, to strike the breast cancer provision. A Senate committee voted down an amendment by Sen. Vi Simpson, D-Elletsville, that would have required information given to women seeking abortions be "medically and scientifically accurate."

For more, see yesterday's ILB entry.

Posted by Marcia Oddi on Thursday, March 31, 2011
Posted to Indiana Law

Courts - New Jersey: "Judge Orders Newspaper to ID Commenter re Manslaughter Case Against Former ‘Melrose Place’ Actress"

ABA Journal blog has this March 30th entry that begins:

A judge in New Jersey yesterday ordered the Newark Star-Ledger to identify an anonymous commenter who said he witnessed a fatal car crash that resulted in an aggravated manslaughter charge against actress Amy Locane-Bovenizer, 39, who starred in the original Melrose Place television series.

The comment by the claimed witness said authorities were "lying about the facts" in the Somerset County Superior Court case, the Associated Press reported.

It isn't clear whether the newspaper may be considering an appeal.

Start with this March 23 ILB entry for similar Indiana issue.

Posted by Marcia Oddi on Thursday, March 31, 2011
Posted to Courts in general

Wednesday, March 30, 2011

Ind. Gov't. - Judge rules in Lake County election dispute [Updated]

Bill Dolan of the NWI Times reported earlier today in a story that began:

CROWN POINT | Lake Superior Court Judge Jesse Villalpando on Friday will make what could be a first-of-its kind decision on whether nonpartisan school board members must give up their right to run for public office as a member of a political party.

But the man at the center of the dispute, George Janiec, a School City of Hammond board member who wants to run for Hammond mayor, is hardly a trailblazer in Lake County political history.

Four decades ago, Ralph Potesta used his membership on the same school board as a springboard to win election as a Republican to the Indiana State Senate.

They are not the only ones to try. But Dawn Tomich, one of Hammond Mayor Thomas McDermott Jr.'s appointees to the city's Collegebound Exceptions committee, challenged Janiec on grounds his bid for the Republican Party nomination for mayor violates the spirit of state and local rules forbidding local school board members from political campaigning.

The Democrat Party members of the Lake County Elections Board, with no apparent legal precedent, agreed a new standard should be set for school board members and removed Janiec as a potential challenger to incumbent McDermott.

If Villalpando now restores Janiec's mayoral run, Janiec would join two other school officials on the May 3 ballot — LaBrenda King-Smith, a Gary school board trustee and Democrat running for the 5th District City Council seat, and Michael Stills, a Lake Station school board member who is among five Democrats running for an at-large City Council seat. [ILB note - The NWI Times has now replaced this story with a revised story, but used the same link]

Now, in an Order dated today, "March 30, 2011 at 3:00 p.m.," Judge Villalpando writes:
1. Did Janiec breach an implied statutory duty set forth in I.C. 20-25-3-3(c)(4) that he would not be influenced by any consideration of politics upon taking his oath of office on July 1, 2010, when he declared his candidacy for partisan municipal office in February, 2011?

2. Did the Lake County Board of Election and Registration abuse its discretion when it disqualified Janiec as a candidate for mayor on the basis that Janiec breached a statutorily created legal duty implied in his oath of office upon assuming office as a nonpartisan elected Hammond School Board Member when he filed as a partisan candidate for Mayor, City of Hammond?

Judge Villalpando rules that the Lake County Election Board properly barred (or did not improperly bar) George Janiec as a candidate for Hammond Mayor:
The court finds as a matter of law that the Election Board acted consistent with legislative
authority pursuant to: I.C. 20-25-3-3(c)(4), contrary to the legal authority cited in either Petitioner’s or Respondent’s legal memoranda. I.C. 20-25-3-3 specifically applies to the question of conduct to which eligible school board members must adhere. This statute is unambiguous and spot on as it applies to the operative facts of this case. On July 1, 2010, Janiec took an oath of office as a member of the Hammond School Board. I.C. 20-25-3-3 imposes the legal standards for this court to apply in this case. On July 1, 2010 Janiec pledged to not be influenced by any consideration of politics in the performance of official duties as a member of the school board. “On the day before filing closed in February, 2011” as Janiec, himself told the court on March 29, Janiec broke that pledge when he filed his Declaration of Candidacy for Municipal Election, declaring himself a partisan candidate for Mayor, City of Hammond. * * *

The legal case before this court, on the operable facts, show that this is not a case of first impression as argued by the attorney for the Election Board. * * *

The Indiana Code indeed, contains the policies applicable to the relevant question of conduct of school board members under I.C. 20-25-3-3. The Supreme Court, pursuant to the legislature’s Administrative Orders and Procedure Act cited above has set forth the standard of judicial review in LTV Steel v Griffin. The trial court’s power of judicial review is limited. Consequently, this court finds that Janiec and Janiec alone created the condition that undermined his candidacy for mayor according to any straightforward examination of I.C. 20-25-3-3(c)(4). Thus, the court holds that the Election Board did not abuse its discretion in its March 7th ruling barring Janiec’s candidacy, by law this court cannot set aside the Board’s Final action.

[Updated 3-31-11] Bill Dolan's NWI Times story has now been updated, including a new headline: "Janiec loses bid to return to Hammond mayoral race." The new story begins:

CROWN POINT | Lake Superior Court Judge Jesse Villalpando refused Wednesday to restore Hammond School Board member George Janiec to the May 3 primary ballot as a Republican candidate for Hammond mayor.

The judgment appears to be a victory for incumbent Mayor Thomas McDermott Jr., who nearly lost to Janiec in 2007. McDermott also complains Janiec created an illegal conflict of interest by using his position as a School Board trustee as a springboard for a second campaign to win City Hall.

Villalpando's order states, "Janiec is the person who created this controversy and logically is the only person who can remove the condition undermining his municipal ambitions. He still has time to help himself."

The judge doesn't explicitly tell Janiec to resign from the School Board this week, but the judge is setting a "final hearing" for 3 p.m. Thursday so attorneys in the case can "inform the court of any substantial change of circumstances at that time."

Chelsea Schneider Kirk's story today in the Gary Post-Tribune begins:
Lake Superior Court Judge Jesse Villalpando has placed the ball in George Janiec’s court.

Janiec, who wants to run as a Republican for Hammond mayor, created the controversy surrounding his candidacy when the nonpartisan school board member decided to run for office, Villalpando ruled on Wednesday.

And, as Villalpando sees it, Janiec is the one person who can remove it.

Villalpando found that the Lake County Election Board didn’t abuse its powers in removing Janiec from the May 3 ballot.

He ruled Janiec breached the oath of office he took months ago as a new school board member and violated state law requiring school board members avoid political influences.

“On July 1, 2010, Janiec pledged to not be influenced by any consideration of politics in the performance of official duties as a member of the school board,” according to Villalpando’s ruling.

However, the judge maintained, “He still has time to help himself.”

A final hearing in Janiec’s appeal is set for today. Janiec’s attorney, Cordell Funk, didn’t wish to comment ahead of today’s hearing.

Posted by Marcia Oddi on Wednesday, March 30, 2011
Posted to Indiana Government

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

In Randall and Pepmeier, et al v. Rolls-Royce Corp. (SD Ind., Barker), an 18-page opinion, Judge Posner affirms District Judge Barker's decision denying a motion to intervene. A quote from the beginning of the opinion:

The plaintiffs in this class action suit on behalf of more than 500 female employees of a Rolls-Royce plant in Indiana that manufactures aircraft, industrial, and marine engines appeal from the denial of class certification and the subsequent grant of Rolls- Royce’s motion for summary judgment. (We refer to the defendants, all of which are affiliated corporations, collectively as “Rolls-Royce.”) The plaintiffs charge Rolls-Royce with sex discrimination, in violation of Title VII and the Equal Pay Act, in paying the members of the class less than comparable male employees by setting the base pay of women employees in the class members’ compensation categories below that of male employees in the same categories, and in denying them promotions they would have received had they been men.
From p. 13 of the opinion:
How far Rule 23(b)(2) can be stretched is the issue in the gigantic class action against Wal-Mart, Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 619 (9th Cir.) (en banc), cert. granted, 131 S. Ct. 795 (2010), now before the Supreme Court. The present case is not as big a stretch, but it is big enough.

Posted by Marcia Oddi on Wednesday, March 30, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 7 NFP)

For publication opinions today (6):

In George F. Evans, Jr. v. Peggy A. Evans, a 15-page, 2-1 opinion, Judge Brown writes:

George F. Evans, Jr. appeals the trial court's order granting a motion to compel payment in favor of James C. Michael, as personal representative of the estate of Peggy A. Evans, pursuant to an amended dissolution decree. George raises one issue which we revise and restate as whether the trial court abused its discretion by granting Michael's motion to compel payment after amending the dissolution decree pursuant to Ind. Trial Rule 60(B). We affirm. * * *

For the foregoing reasons, we affirm the trial court's grant of Michael's motion to compel payment. Affirmed.

ROBB, C.J., concurs.
RILEY, J., concurs in part and dissents in part with separate opinion. [that begins] While I agree with the majority's treatment of the trial court's characterization of Michael's motion to compel as a motion within the confines of Indiana Trial Rule 60(B)(8), I respectfully disagree with its analysis of the trial court's alternate payment plan.

In Trust of William H. Riddle; Linda Goins v. Patricia Riddle, a 17-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court properly concluded that Goins had breached her duties as trustee of the Trust. With respect to the cross-appeal, we remand to the trial court for the determination of reasonable trial and appellate attorney fees.
Affirmed in part, reversed in part, and remanded for further proceedings as stated in our opinion and the remaining proceedings contemplated in the trial court's Order on Trustee's Report.
In Estate of Nathaniel Kappel v. Margaret Kappel, a 6-page opinion, Judge Bailey writes:
The Estate of Nathaniel Kappel appeals an order of the Hendricks Superior Court, Probate Division, requiring the Estate to pay a survivor's allowance to Nathaniel Kappel's widow, Margaret Kappel. The Estate presents the sole issue of whether the demand for payment is an untimely claim against the Estate. We affirm. * * *

Here, the Estate's argument that a timely claim filing is required is likewise unavailing. If a surviving spouse need not file a demand for payment of the survivor's allowance at all, the spouse need not do so within the nine-month period of time prescribed by Indiana Code Section 29-1-14-1(d). As such, the probate court properly granted Margaret her statutory right to a survivor's allowance.

In Jerry and Mary Kwolek v. Rodney and Jennifer Swickard, a 20-page opinion, Judge Najam concludes:
In sum, we hold that the trial court erred as a matter of law when it concluded that the easement grants to the Swickards the right to park within the easement. To the contrary, the easement is expressly limited by its terms to ingress and egress, and, absent a cogent prescriptive claim, evidence of use cannot be used to expand the scope of the easement beyond its explicit terms. We also hold that the court's order for the Kwoleks to remove their improvements from the easement is clearly erroneous in that the improvements do not interfere with the Swickards' ingress and egress. Finally, we hold that the doctrine of acquiescence does not apply here and, therefore, does not bar the Kwoleks from raising their claims. Thus, the trial court's judgment for the Swickards is clearly erroneous, and it must be reversed.
In Sheila K. Granger v. State of Indiana , a 20-page opinion, Judge Bailey concludes:
While the trial court abused its discretion in the admission of some, but not all evidence seized from Granger's home, the admission of that evidence was harmless error. Granger's sixty year executed sentence is inappropriate in light of the nature of her offenses and her character, and we reduce her aggregate sentence to fifty years with ten years suspended.
In Tywan D. Griffin v. State of Indiana, a 6-page opinion, Judge Riley concludes:
Instead, these facts are evidence of Griffin’s knowledge of the marijuana blunt and his intent to maintain dominion and control over it. When we interpret this evidence in the light most favorable to the trial court’s judgment, it is sufficient to support an inference that Griffin constructively possessed marijuana.

Based on the foregoing, we conclude that the State produced sufficient evidence to prove beyond a reasonable doubt that Griffin committed the charge of possession of marijuana.

NFP civil opinions today (4):

James Whitaker, et al. v. Sandra Maskell, et al. (NFP)

James A. Love, et al. v. Meyer & Najem Construction, LLC (NFP)

D.J. v. Review Board (NFP)

R.C. v. R.C. (NFP)

NFP criminal opinions today (3):

Leslie A. McCormick v. State of Indiana (NFP)

Samuel D. Manley v. State of Indiana (NFP)

Gregory Proffitt v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 30, 2011
Posted to Ind. App.Ct. Decisions

Courts - "A Defining 48 Hours at the Supreme Court"

From Joan Biskupic's Supreme Court Blog today, this entry that begins:

Sitting in the courtroom the last two days, I was reminded of how profoundly the Court is split 5-4, conservatives-liberals, on cases that really matter. The divide was evident during oral arguments in the Arizona campaign finance dispute Monday and in the gigantic Wal-Mart job-discrimination class action fight Tuesday. And one of most compelling moments along these lines came Tuesday morning when Justice Ruth Bader Ginsburg read aloud her dissenting opinion from a decision in which the five-justice conservative majority ruled that a former Louisiana Death Row could not sue prosecutors who had failed to turn over blood evidence that could have shown his innocence.

Justices rarely read dissents from the mahogany bench, and when it happens, it’s usually in June, the final, tense month of the term.

But Ginsburg, the most senior liberal, could not hold back from a very public protest of the majority decision in Connick v. Thompson, written by Justice Clarence Thomas and overturning the $14 million verdict John Thompson won in a civil rights trial after he was freed from prison.

With her outrage barely betrayed by a steady, flat voice, Ginsburg emphasized the injustice Thompson faced and responsibility former District Attorney Harry F. Connick bore. She noted that prosecutors have a constitutional obligation to reveal evidence that might exonerate a person: “That obligation was dishonored in this case. Consequently, John Thompson spent 14 years isolated on death row before the truth came to light.”

See the earlier ILB entry today on the Thompson decision.

Posted by Marcia Oddi on Wednesday, March 30, 2011
Posted to Courts in general

Ind. Gov't. - "HJR 6 – Marriage Discrimination Passes Senate"

That is the heading of this thoughtful entry just posted by Doug Masson of Masson's Blog.

Posted by Marcia Oddi on Wednesday, March 30, 2011
Posted to Indiana Government

Ind. Gov't. - More on: Tweets on incredible House debate in process on abortion restrictions

Updating yesterday's ILB entry, this story today in the Indianapolis Star, headed "Abortion bill changes defeated," about the second reading action yesterday in the House on HB 1210. Mary Beth Schneider reports:

Republicans defeated numerous attempts by Democrats to moderate a bill that would establish some of the tightest abortion restrictions in the nation.

HB 1210, authored by Rep. Eric Turner, R-Cicero, would make most abortions illegal after 20 weeks. Current law restricts most abortions after the fetus is considered viable, generally about 24 weeks.

Among its other provisions, the bill would require abortion providers to tell patients that abortion carries risks, including the possibility of breast cancer.

Rep. Peggy Welch, D-Bloomington, tried to remove that language, saying studies have shown no link between abortion and breast cancer.

"I support the bill," said Welch, a nurse and one of only five House Democrats among the 51 co-sponsors of the bill. "But I do not support the (breast cancer) language because it is not evidence-based."

The House also voted against an amendment by Rep. Gail Riecken, D-Evansville, that would have exempted women who became pregnant through rape or incest, or women whose pregnancy threatens their life or could cause serious and irreversible physical harm.

Turner urged his colleagues to oppose that amendment, saying it created "a giant loophole" because a woman might "simply say (she'd) been raped."

Rep. Linda Lawson, D-Hammond, tearfully objected, telling the House she was a sex crimes investigator for the Hammond Police Department for six years.

"Women don't make this up! My goodness! This is the state of Indiana. This is not some kind of crazy Third World country. These are women who live in this state!" she said.

The bill is now eligible for a final vote in the House this week. It then would move to the Senate, which earlier passed similar legislation aimed at abortion.

Posted by Marcia Oddi on Wednesday, March 30, 2011
Posted to Indiana Government

Ind. Gov't. - "House GOP just says 'no' to Democrats' amendments"

Good story in the Indianapolis Star this morning, by Mary Beth Schneider and Heather Gillers, describing the House action, now that the errant Democratic members have returned. Some quotes from the lengthy report:

Over and over, the answer was no.

For hours Tuesday night, the Indiana House weighed how to divide up about $28 billion to fund schools, health care and government services for Hoosiers over the next two years.

The decisions were tough. Indiana, like most states, still faces hard economic times as the recession and continued high unemployment has shrunk sales, income and other taxes.

Democrats, back for their first full day after a five-week walkout that had paralyzed the House, had filed dozens of amendments to the budget bill, House Bill 1001, pushing the state to spend more on education, health care and mass transit.

But Republicans who control the House struck most of those down. * * *

The fight wasn't only about how to divvy up funds, but about who ultimately controls the state's purse strings.

Rep. Scott Pelath, D-Michigan City, tried to strip from the budget long-standing language that lets Indiana's governor choose not to spend money in order to stop the state from going into the red in tough times.

But, Pelath said, Daniels has abused that by treating the legislature's priorities more like suggestions than appropriations.

"The budget bill has lost meaning," he said. "No matter what budget priorities you put in this bill, they will not be adhered to by the administration."

Republicans rejected that, saying Daniels has made the tough, necessary choices.

But Espich reminded Democrats about their desire to shift those choices back to the legislature minutes later, when Democrats tried to increase funding for mass transit.

"You said you wanted to bite the bullet," he told them. "Well, you start biting right now."

The tough choice, but the right one, he said, was to once again say no.

Posted by Marcia Oddi on Wednesday, March 30, 2011
Posted to Indiana Government

Ind. Decisions - "Court: District need not bus nonpublic students"

The March 28th COA opinion in Roman Catholic Archdiocese of Indianapolis, Inc. v. Metro School District of Lawrence Twp., et al. (ILB summary here) is the subject of a brief AP story today.

Posted by Marcia Oddi on Wednesday, March 30, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Exonerated inmate won't get $14M "

A USA TODAY story by Brad Heath reeports:

WASHINGTON — A divided Supreme Court made it more difficult to sue local prosecutors' offices for courtroom wrongdoing on Tuesday, overturning a $14 million verdict for a New Orleans man who came within weeks of being executed for a murder he did not commit. * * *

Tuesday's decision is the latest in a series of rulings that have made it more difficult to sue prosecutors and their bosses over misconduct. The court decided 35 years ago that individual prosecutors are immune from civil rights lawsuits for their work in the courtroom.

The violations in Thompson's case were similar to those documented last year by a USA TODAY investigation of misconduct by federal prosecutors. The newspaper detailed 201 criminal cases since 1997 in which judges concluded that federal prosecutors violated laws or ethics rules.

Posted by Marcia Oddi on Wednesday, March 30, 2011
Posted to Courts in general

Ind. Courts - "Clark court consolidation passes Senate: Bill heads back to Indiana House for approval"

Braden Lammers reports today in the Clark County News & Tribune:

INDIANAPOLIS — A bill that would allow for the consolidation of the Clark County Courts has passed through the Senate and will head back to the Indiana House for approval.

House Bill 1266 — which merges the three Clark County superior courts with the Clark Circuit Court to create a single unified court system with four judges and two magistrates — passed the Senate by a vote of 49-10 [ILB - sic.] on Tuesday.

State Sen. Ron Grooms, R-Jeffersonville, who co-sponsored the legislation, said it is aimed at streamlining and improving services offered by the Clark County court system.

The bill will head back to the House because of amendments that include language that removes age limits placed on judges. The language, which originated in Senate Bill 463, creates parity between circuit and superior courts by removing provisions from the Indiana code requiring Superior Court judges retire at 70 years old, according to a press release.

In addition to Clark County, the legislation includes Henry County — which would move from three courts to one — and Madison County — which will create one unified Circuit Court with six judges..

Posted by Marcia Oddi on Wednesday, March 30, 2011
Posted to Indiana Courts

Courts - "Justice Antonin Scalia ticketed for GW Parkway fender-bender"

The Washington Post's "Reliable Sources" column has the story. From the story:

The Supreme Court justice was ticketed early Tuesday for his role in a four-car fender-bender. No injuries to anyone but the cars — including Scalia’s, which had to be towed. * * *

Scalia was in a dress shirt, no jacket [ILB: and no robe], with an unknotted bowtie hanging around his neck — and, interestingly enough, turned out to be driving himself. The car in front of his appeared pretty badly banged up, the other two less so. Scalia made it to the bench, though, in time for arguments at 10 a.m., a court spokeswoman said.

Posted by Marcia Oddi on Wednesday, March 30, 2011
Posted to Courts in general

Ind. Gov't. - Still more on "Charlie White's case is about much more than indictment"

Updating this ILB entry from March 16th, which linked to all the earlier filings for the April 6th hearing, here is the reply brief, filed March 28th. The argument is set for next Wednesday, April 6th at 1:30 p.m. in Marion Circuit Court (Judge Lou Rosenberg).

Posted by Marcia Oddi on Wednesday, March 30, 2011
Posted to Indiana Government

Tuesday, March 29, 2011

Ind. Courts - "One day: 45 cases in juvenile court"

Dann Denny of the Bloomington Herald-Times has this long story today ($$). It begins:

A black-robed Judge Steve Galvin is sitting on his elevated bench in the Monroe County juvenile courtroom.

On his desk are two 12-inch-high stacks of folders representing the 45 cases he will preside over today.

The cases will vary in nature — from “initial hearings” in which he advises parents of their rights; to “review hearings” in which he reviews how cases are going; and “permanency hearings” to determine the permanent placement of a child.

There are two other related stories today in the H-T. One headed: "Are Indiana's funding cuts hurting state’s abused and neglected children?" The second: "Drug testing of addicted parents less frequent after state budget cuts."

Posted by Marcia Oddi on Tuesday, March 29, 2011
Posted to Indiana Courts

Ind. Law - Gay marriage ban, HJR 6, has now passed the General Assembly

HJR 6 has now passed the first of the requisite two separately elected General Assemblies. It will be eligible for passage by the second separately elected General Assembly in 2013 or 2014. If it passes again, it will go on the ballot in 2014.

Here is the roll call vote on 3rd reading in the House, from Feb. 15, 2011. Notice that the vote did not split entirely on party lines. 70-26 with 4 not voting.

Here is the roll call vote on 3rd reading in the Senate today, March 29, 2011. Notice that the vote was 40-10 in favor of the ban. 3 Dems voted for the ban.

Two interesting tweets related to this debate, both from reporters:

Public couldn't watch gay marriage vote. Sen prez closed balcony after Mon, when audience chanted "stop hating, stop pandering."

Possibly isn't a more disrespectful senator in America than Mike Young, R-Indy. Sits in the back of the chamber mocking those speaking.

Posted by Marcia Oddi on Tuesday, March 29, 2011
Posted to Indiana Law

Ind. Gov't. - Tweets on incredible House debate in process on abortion restrictions

See the tweets from Mary Beth Schneider here, right now. I'll add them to this entry in a few minutes.

Recall this ILB entry from March 24th. For background, see this entry from Feb. 20th.

Today's bill is HB 1210.

[More] Here are the tweets, in reverse order:

Posted by Marcia Oddi on Tuesday, March 29, 2011
Posted to Indiana Government

Courts - CJ of SCOTUS conducts independent research

See this ABA Journal blog entry this morning, headed "Chief Justice Checks Out a Website for Constitutional Ammunition in Campaign Finance Case."

Posted by Marcia Oddi on Tuesday, March 29, 2011
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP)

For publication opinions today (3):

In Mike Hawa v. Gerald R. Moore , a 12-page opinion, Judge Vaidik writes:

Property owner Mike Hawa and contractor Gerald Moore entered into a contract for the installation of a recycled concrete base for a parking lot. When Moore walked off the job, Hawa filed a breach of contract claim in small claims court. Moore filed a counterclaim. Hawa now appeals the small claims court’s $4745 judgment in favor of Moore on his counterclaim. He contends that the court clearly erred by ruling in favor of Moore and improperly calculating damages and denied him due process by not giving him an opportunity to defend against Moore’s counterclaim or rebut Moore’s testimony. We conclude that Hawa repudiated the contract by failing to provide Moore with adequate assurance that he would pay for Moore’s services. The small claims court thus did not err by ruling in favor of Moore. However, the court erred by awarding Moore the cost of transporting certain materials after the lawsuit was filed, damages that Moore should have used reasonable diligence to mitigate. Finally, because the transcript shows that Hawa rejected the court’s offer to reschedule the matter for any further evidence, he was not denied due process. We therefore affirm in part, reverse in part, and remand for a reduction in the damage award.
In Connie Brumley, et al. v. Commonwealth Business College Education Corp. , a 21-page opinion, Judge Vaidik writes:
This is an interlocutory appeal from an order compelling arbitration. Plaintiff students Connie Brumley, Ronisha Smith, and Stephanie Anderson brought suit against defendant Brown Mackie College. The plaintiffs allege that they were fraudulently induced to enroll at Brown Mackie due to misrepresentations of accreditation. Brown Mackie moved to compel arbitration based on arbitration clauses in the plaintiffs' student enrollment agreements. The trial court sustained Brown Mackie's motion, and the plaintiffs now appeal. We conclude that, because the plaintiffs' action challenges the enrollment agreements in their entirety rather than the arbitration clauses in particular, the plaintiffs' claims remain subject to arbitration. We affirm. * * *

BAKER, J., concurs.

BARNES, J., concurs with separate opinion. [which concludes]I recognize that the students' allegations here are, at this point, unproven. Still, if true, it is plainly evident that Brown Mackie at best was disingenuous in its advertising, and at worst was actively dishonest in touting the surgical technology degree it offered. Although Brown Mackie trumpeted being “accredited” in its advertising and materials, that “accreditation” allegedly was insufficient to allow graduates to take the required exam for surgical technology certification. Indiana residents likely were hornswoggled here, and I am frustrated that we are powerless to intervene. I must trust that an arbitrator will fairly consider the students' claims.

I concur fully, but grudgingly.

In Ricky D. Whitaker v. Travis M. Becker, et al. , a 13-page opinion, Judge Darden concludes:
That said, we nevertheless find there are grounds that warrant the imposition of sanctions for the lack of proper diligence on the part of counsel for Whitaker. Collectively, we find that for counsel's failure to timely respond to letters of Becker's counsel regarding discovery matters, or to have requested an extension of time in which to respond to the request for production of discovery, rather than have counsel to seek production of discovery by court order, is unacceptable conduct by an officer of the court.

We reverse the trial court's order dismissing the case and the awarding of $3,700.00, as a reasonable amount for attorney's fees, herein. We affirm the trial court's order finding that there are grounds for sanction and the imposition of reasonable attorney's fees for unacceptable conduct by Whitaker. However, as noted above, we find that the conduct complained of, without any valid explanation by counsel in the record to the contrary, could have been avoided except for the failure of Whitaker's counsel. As a result, we find that counsel for Whitaker should be and hereby is sanctioned and ordered to pay to counsel for Becker the sum of $625.00 as reasonable attorney's fees in this matter.

NFP civil opinions today (1):

Eddie J. Williams, Jr. v. State Employees' Appeals Commission (NFP)

NFP criminal opinions today (1):

Francisco Ponce v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 29, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Edward Dawson v. State of Indiana, a 2-page, 5-0 per curiam opinion, the Court concludes:

A threshold question in this appeal is whether Post-Conviction Rule 2 allows belated appeals from an order revoking probation. * * *

The Court of Appeals correctly decided that belated appeals from orders revoking probation are not presently available pursuant to Post-Conviction Rule 2. We agree with the Court of Appeals’ analysis that the sanction imposed when probation is revoked does not qualify as a “sentence” under the Rule, and therefore Dawson is not an “eligible defendant.” Accordingly, we grant transfer and adopt and incorporate by reference the opinion of the Court of Appeals under Appellate Rule 58(A)(1).

Posted by Marcia Oddi on Tuesday, March 29, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "As if the standoff had never happened, the Indiana House of Representatives picked up Mon. night exactly where it left off five weeks ago"

That is the lede to Eric Bradner's story today in the Evansville Courier & Press. Also, a great photo from AJ Mast / Associated Press.

"Democrats return, but will legislators meet session deadline?" is the headline to the Indianapolis Star story today, written by Mary Beth Schneider and Heather Gillers. It begins:

Five weeks lost. Five weeks left.

With Democrats back in the Indiana House, ending a standoff that was one of the longest in Indiana's and the nation's legislative history, the legislature is now in a race against the clock.

Legislators have just five weeks to complete work on a new state budget, draw new legislative and congressional district maps, address education and government reforms and consider hundreds of other bills that had been in limbo until the impasse ended Monday.

And they've got to get it done by April 29, the deadline for this session to end. Go into overtime, and it costs taxpayers money the state can ill-afford.

Here is the story filed last evening by Deanna Martin of the AP.

Posted by Marcia Oddi on Tuesday, March 29, 2011
Posted to Indiana Government

Ind. Courts - "Convicted rapist’s appeal heard at VU School of Law"

Both NWI newspapers covered the oral argument held Monday by a traveling panel of Indiana Court of Appeals judges at Valpo Law.

Here is the report of Ruth Ann Krause of the Gary Post-Tribune. Some quotes:

Judge Nancy Vaidik, a Portage native and former Porter County prosecutor, presided at the session with Judges Michael P. Barnes and Terry Crone, both of St. Joseph County, in hearing arguments in the appeal of Walter Lee Liddell. * * *

The judges heard arguments on whether the trial court mistakenly denied Liddell’s request to exclude a newly discovered witness or delay the trial to give the defense adequate time to investigate and develop a strategy.

Through Liddell’s first two trials that ended in mistrial with deadlocked juries, no one had been able to locate a witness named “Jerry” who had “Angela” tattooed on his neck.

On the Friday before Liddell’s third trial began in April 2010, defense attorney John Cantrell learned from deputy prosecutor John Burke that the man had been identified through an online tattoo identification database but that Burke would not be calling him as a witness.

Here is Bob Kasarda's story in the NWI Times, along with three photos.

Posted by Marcia Oddi on Tuesday, March 29, 2011
Posted to Indiana Courts

Ind. Courts - "Justices idle local lawyer accused of bilking clients"

Updating this Feb. 15th entry headed "State moves to suspend accused Roanoke lawyer," this story this morning in the Fort Wayne Journal Gazette reports:

The Indiana Supreme Court has indefinitely suspended the law license of local attorney Daniel E. Serban.

The order, filed March 18, states the suspension goes into effect 15 days after the order was entered. It was issued in response to an emergency petition to suspend Serban’s license filed in early February by the high court’s Disciplinary Commission.

Serban, of Roanoke, faces criminal charges of corrupt business influence, forgery, and two counts of theft. He was charged in September, accused of failing to distribute money paid into the Serban Law Office’s Trust Account to clients or to those who are entitled by court order to receive it.

Here is the March 18, 2011 order.

Posted by Marcia Oddi on Tuesday, March 29, 2011
Posted to Indiana Courts

Courts - "Federal Courts Worry Your Smartphone Might Be a Bomb"

Interesting, balanced article by David Kravets of Wired. It begins:

Smartphones could offer journalists and the public an easy and cost-effective method to provide online updates of court proceedings — which is why it’s always been frustrating that many federal jurisdictions don’t allow the devices into courthouses. Now, thanks to a newly issued document, we know why.


An 8-page memo issued last week by the Administrative Office of the Courts describes the primary reason to ban smartphones from court buildings. “These common devices present security issues because some can be and have been converted for use as weapons, including explosives.”

“The current array of devices has raised additional concerns about risks due to increased use of non-metallic materials in manufacturing, smaller size, and the potential inability of scanning equipment to detect these devices and hidden explosives,” the 8-page memo continues.

Posted by Marcia Oddi on Tuesday, March 29, 2011
Posted to Courts in general

Monday, March 28, 2011

Ind. Gov't. - "Private Prison Promises Leave Texas Towns In Trouble" [Updated]

I heard this long (nearly 8 minute) NPR story this morning by John Burnett and thought about the parallels to Indiana, and the differences. I would consider this a must read/listen. Some quotes:

According to the Bureau of Justice Statistics, the total correctional population in the United States is declining for the first time in three decades. Among the reasons: The crime rate is falling, sentencing alternatives mean fewer felons doing hard time and states everywhere are slashing budgets.

The Texas Legislature, looking for budget cuts, is contemplating shedding 2,000 contract prison beds. Statewide, more than half of all privately operated county jail beds are empty, according to figures from the Texas Commission on Jail Standards.

"Too many times we've seen jails that have got into it and tried to make it a profitable business to make money off of it and they end up fallin' on their face," says Shannon Herklotz, assistant director of the commission.

The packages look sweet. A town gets a new detention center without costing the taxpayers anything. The private operator finances, constructs and operates an oversized facility. The contract inmates pay off the debt and generate extra revenue. * * *

Private prison companies insist their future is sunny.

A spokesman for the GEO Group declined to speak about the Littlefield prison, but he sent along a slew of press releases highlighting the company's new inmate contracts and prison expansions across the country.

Corrections Corporation of America, the nation's largest private prison operator, says the demand for its facilities remains strong, particularly for federal immigration detainees.

New Jersey-based Community Education Centers, which has been pulling out of unprofitable jails across Texas, issued a statement that "the current [jail] population fluctuation" is cyclical.

One of the places where CEC is canceling its contract is Falls County, in central Texas, where a for-profit jail addition is losing money. Now it's up to Falls County Judge Steve Sharp to hustle up jailbirds: "If somebody is out there charging $30 a day for an inmate, we need to charge $28. We really don't have a choice of not filling those beds," he said.

Another place where they're desperate for inmates is Anson, the little town north of Abilene, Texas, once famous for its no-dancing law. Today, Jones County owns a brand-new $34 million prison and an $8 million county jail, both of which sit empty. The prison developers made their money and left. Then the Texas Department of Criminal Justice reneged on a contract to fill the new prison with parole violators. The county's Public Facility Corp., which borrowed the money to build the lockups, owes $314,000 a month — with no paying inmates. They've got a year's worth of bond service payments set aside before county officials start to sweat.

"The market has changed nationwide in the last 18 months or two years. It's certainly a different picture than when we started this project. And so we're continuing to work the problem," Jones County Judge Dale Spurgin says.

[Updated] See also this entry yesterday from Sentencing Law blog.

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

Ind. Gov't. - More on Dems returning today

The IndyStar now has an expanded story.

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

Ind. Gov't. - HJR 6 on 2nd reading in Senate right now

And a loud demonstration is going on, with demonstrators chanting "Jobs, not hate."

[More] President Pro Temp Long has ordered the gallery cleared and the doors of the Senate gallery locked.

Senator Lanane offers Amendment #1 to HJR 6, to remove the second sentence of the proposed constitutional amendment. He also offered this amendment in Senate committee, where it failed on a party line vote.

[More] A Michigan Supreme Court decision re similar language in the Michigan Constitution has been talked about by both sides of the debate, but without specifics. Here is the ILB May 7, 2008 entry on the decision.

Here is the opinion
. It begins:

We granted leave to appeal to consider whether the marriage amendment, Const 1963, art 1, § 25, which states that “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose,” prohibits public employers from providing health-insurance benefits to their employees’ qualified same-sex domestic partners. Because we agree with the Court of Appeals that providing such benefits does violate the marriage amendment, we affirm its judgment.
[More] Amendment #1 fails.

Senator Lanane offers Amendment #2, which he describes as intended to provide some flexibility for future legislatures. Fails 36-11, with Becker and Hume not present. Same vote as #1.

HJR 6 moves on to engrossment (as in "amendment, recommitment or engrossment").

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

Ind. Gov't. - "House Democrats packing bags, checking out of Urbana: Return means likely end to five-week walkout"

Niki Kelly and Angela Mapes Turner are reporting here in the Fort Wayne Journal Gazette:

INDIANAPOLIS – House Democrats are packing their bags and most have already checked out of their Illinois hotel rooms, signaling a likely end to the five-week old walkout in the Indiana House.

Only a few cars with legislative plates remained at the Urbana, Ill., Comfort Suites Monday.

Members declined comment, referring the matter to GOP House Speaker Brian Bosma.

Mary Beth Schneider of the IndyStar has just tweeted:
Speaker Bosma say Ds will end walk-out; be back in session at 5 p.m. today

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

Ind. Decisions - 7th Circuit issues tax law opinion involving Indiana attorney

In Scott C. Cole and Jennifer A. Cole v. Comm. IRS (U.S. Tax Court), a 33-page opinion, Judge Tinder writes:

Appellants Scott C. and Jennifer A. Cole (a married couple from Brownsburg, Indiana) ran into trouble with the Internal Revenue Service (IRS) in 2003, when a revenue agent began auditing their 2001 joint tax return. Through this audit, the agent discovered a web of corporate and partnership entities serving dubious purposes, undocumented financial transactions, and inconsistent reports regarding the Coles’ income. Incongruously, although Scott engineered much of the financial and legal tangle that landed him and Jennifer in hot water with the IRS, Scott is a licensed Indiana attorney with a practice focused on business planning and tax matters. We outline the confusing maze of entities and financial dealings below, but be forewarned that much of it makes little business or legal sense as the Coles fail to dispel the perception underlying the Tax Court’s finding that the perplexing arrangements served as nothing but after-the-fact attempts to avoid taxation on the substantial income Scott earned in 2001.
ILB: I just tried to look up Mr. Cole on the Indiana Roll of Attorneys, but can no longer locate the Roll on the court web site. Okay, now I've found it, but not easily. Mr. Cole is listed as "Active in Good Standing," although the Roll as indicates that he has concluded discipline in the past.

Posted by Marcia Oddi on Monday, March 28, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

In Roman Catholic Archdiocese of Indianapolis, Inc. v. Metro School District of Lawrence Twp., et al. , a 23-page opinion, Judge Darden writes:

In this consolidated appeal, the Roman Catholic Archdiocese of Indianapolis; and Joseph Piper, Renee Piper, Rachel M. Lewis, Bryan Smith, Jennifer Smith, Lisa Schultheis, Lora Lehman, Jim Fernandez, Gerri Fernandez, Chris Roberts, and Julia Roberts (“Parents”) appeal from the lower courts' denial of their respective requests for declaratory and injunctive relief and the courts' judgments in favor of Metropolitan School District of Lawrence Township and Concetta Raimondi, as Superintendent of the School District. We affirm.

Issue. Whether -- in addition to transporting nonpublic school students who reside along or near its regular school bus routes to the point on the regular route nearest or most easily accessible to their schools -- the School District is required to provide and pay the cost of transporting the nonpublic school students to their respective schools using shuttle buses that are not already in operation on regular established bus routes, and which do not already serve public school students.

Sean T. Ryan v. Dee Anna Ryan , a 16-page opinion, Judge Brown writes:
Sean Thomas Ryan (“Husband”) appeals the denial of his motion for relief under Ind. Trial Rule 60(B). Husband raises three issues, which we revise and restate as whether the trial court abused its discretion in denying his motion for relief from judgment without hearing pertinent evidence. We reverse and remand. * * *

Based upon the record, we conclude that the trial court abused its discretion in denying Husband’s motion under Rule 60(B)(8) without first holding an evidentiary hearing. We remand with instructions to conduct an evidentiary hearing at which the parties are given the opportunity to present evidence in support of or opposition to Husband’s motion for relief from judgment and for the court to grant relief as appropriate after considering the evidence presented at the hearing. We reiterate that the court on remand need not modify the terms of the Settlement Agreement or Private Agreement in order to provide relief under Trial Rule 60(B) but may issue an order providing additional terms to the extent the Settlement Agreement and Private Agreement are silent, i.e., what steps would be taken to accomplish the intended sale of the properties under the circumstances. See Rothschild v. Devos, 757 N.E.2d 219, 224 (Ind. Ct. App. 2001) (finding that the trial court abused its discretion in denying a motion for relief from judgment without hearing pertinent evidence and allowing for discovery).

We also note that both parties request that this court remand for consideration of an award of appellate attorney fees. The parties do not request attorney fees under Ind. Appellate Rule 66(E). While the parties may request the trial court to order the other party to pay a reasonable amount for attorney fees under Ind. Code § 31-15-10-1, we decline to instruct the court to do so.

For the foregoing reasons, we reverse the court’s denial of Husband’s Trial Rule 60(B) motion and remand for an evidentiary hearing.

In Arnaldo Trabucco v. Pamela Trabucco , a 36-page opinion, Judge Mathias writes:
Arnaldo Trabucco (“Husband”) appeals from the trial court's amended order dissolving his marriage to Pamela Trabucco (“Wife”) and raises three issues, which we restate as: I. Whether the trial court's use of income averaging to calculate Husband's weekly gross income for child support purposes was clearly erroneous; II. Whether the trial court erred in including certain assets in the marital pot; and III. Whether the trial court abused its discretion in valuing certain marital assets.

We affirm in part, reverse in part, and remand with instructions. * * *

The trial court's use of income averaging to calculate Husband's weekly gross income for child support purposes was not clearly erroneous. The trial court did not err in including Son's college account, the $250,000 in early distributions, Account #0887, or IRA #1941 within the marital estate. With regard to IRA #5137, we remand to the trial court with instructions to consider whether it inadvertently double counted a portion of the assets included within the IRA. The trial court did not abuse its discretion in valuing the E*Trade Account or the cash on hand. With regard to the coin collection, we remand to the trial court with instructions to provide a detailed explanation of how it arrived at the specific value assigned to the coin collection.

In Capitol Construction Services v. Farrah, LLC , a 12-page opinion, Judge Brown writes:
Capitol Construction Services, Inc. (“Capitol”) appeals the trial court’s order denying its Motion to Dismiss Demand for Arbitration (the “Motion to Dismiss”) in favor of Farah, LLC (“Farah”). Capitol raises one issue, which we revise and restate as whether the court erred in denying its Motion to Dismiss. We affirm.
NFP civil opinions today (3):

G.F. v. R.F. (NFP)

Cynthia Taylor v. Community Hospitals of Indiana, Inc. (NFP)

Alois Cronauer v. Starke Co. Jail, et al. (NFP)

NFP criminal opinions today (3):

Steven A. Wright v. State of Indiana (NFP)

Ashley Straub v. State of Indiana (NFP)

Kristin M. Escamilla v. State of Indiana (NFP)

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

Ind. Gov't. - What is happening today in the Senate?

The Fort Wayne Journal Gazette had this report yesterday on the week ahead for the General Assembly. I've inserted some links:

Work on the state’s 2012-13 budget continues this week, with or without participation by Indiana House Democrats. The budget had not cleared the House before the caucus walked out last month, but Senate leaders are proceeding with the budget proposal approved by the Ways and Means Committee.

The Senate Appropriations Committee meets today to hear budget presentations by the Family and Social Services Administration, Department of Correction and Indiana Supreme Court. The FSSA presentation includes a forecast on Medicaid expenditures. [Here on p. 1 is the agenda for today's budget presentations. you should be able to watch the meeting here, from Room 431, when the meeting commences.]

On Tuesday, each of the state universities and Ivy Tech Community College will make their budget case to the committee. [See p. 2 of the same committee schedule]

The full Senate [Watch when convened in session here] will consider several high-profile measures on second reading today, including House Joint Resolution 6, which would begin the process to write a ban on same-sex marriage and civil unions into the state Constitution. House Bill 1002, which would greatly expand the number of charter schools in the state, is also on the agenda. Senate amendments have improved the charter bill, but it still will divert scarce dollars from existing public schools. [Here is the complete Senate Floor Calendar for today, March 28th.]

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

Ind. Gov't. - Still more on the John R. Justice student loan repayment program

Updating this ILB entry from March 8, 2011, this Thursday is the deadline for prosecutors, defenders to apply for student loan relief.

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

Ind. Gov't. - Redistricting is on the agenda

There have been a number of stories over the past few days on Indiana redistricting for congressional and for state legislative seats. Here are some of them.

Dan Carden reported Sunday in the NWI Times in a story headed "Clock is ticking on Ind. redistricting." Some quotes:

Besides crafting the state's 2012-13 budget, the other "must do" for state lawmakers this year is supposed to be redrawing legislative district boundaries. * * *

But like nearly everything else state lawmakers want to accomplish this year, redistricting is imperiled by the House Democrats' monthlong walkout. Without the Democrats in the chamber the House does not have enough members in attendance to take any legislative action, including devising new maps.

As the calendar flips from March to April this week with no resolution in sight, it is becoming less likely the always controversial map-drawing process will be completed by the Legislature's mandatory adjournment date of April 29.

The maps will still be drawn. But if the the General Assembly doesn't do it this year an already complicated and politicized process gets even more complicated and political.

For congressional districts, map-drawing is handed over to a five-member redistricting commission that must set new congressional district boundaries by May 29. Due to Republican control of both chambers of the General Assembly and the governor's office, all five redistricting commission members are Republicans. * * *

Indiana law does not mandate state legislative districts be drawn this year as it does for congressional districts.

But delaying map-drawing for Indiana House and Senate districts until the end of the next legislative session in March 2012 would give candidates little time to figure out their new district before the May 2012 primary election.

Justin Leighty reported Sunday in the Elkhart Truth in a story headed "Lawmakers told at Elkhart hearing to make legislative map that makes sense." Some quotes:
ELKHART -- While opinions on some points of redistricting were, well, all over the map, legislators at a hearing Saturday morning heard one thing loud and clear: Make districts that make sense.

Conservatives and liberals in the audience all said districts should be as simple as possible.

"The complexity of the lines of a lot of these districts is really absurd. I really think we should minimize the turns and twists," said Richard Streebel.

The process, driven by last year's census, brought a dozen legislators to Memorial High School to hear from people. "We've scheduled this meeting in order to hear from you regarding any concerns you may have about the 2001 legislative map and any factors you would like considered when the general assembly draws the 2011 maps," said State Sen. Sue Landske, R-6th, chairwoman of the committee. "Your comments are important," she told the audience.

Aside from simple boundaries, though, the input on drawing districts wasn't consistent.

Some people argued all of Elkhart County should be in the Second Congressional District, while others argued the dividing line should be the Elkhart-St. Joseph County Line, while others said it's actually kind of nice having two congressmen represent the county.

Some argued that time zones should be a dividing line and that Michigan City has no link to South Bend, while others said Michigan City has at least as much link to South Bend as does Elkhart.

Some people preferred taking politics out of redistricting and having it done by a commission, while others opposed that idea.

Jenna Esarey's special to the Louisville Courier Journal was headed "Turnout sparse at public hearing on Indiana legislative redistricting." Some quotes:
A hearing seeking public input on the Indiana General Assembly’s plans to draw new legislative boundaries lasted only 15 minutes and drew only a dozen or so people to Jeffersonville High School Saturday.

“I think the poor turnout shows how people don’t care about this,” one of the attendees, Bob White, said after the event. “Or maybe they just think their opinion won’t make a difference.” * * *

The hearing was sponsored by members of the House and Senate election committees. State Representative Eric Koch, R-Bedford, the chairman of the House Elections Committee, led the nine-member panel at the high school. * * *

The hearing was one of eight held across the state on Friday and Saturday. Koch said participation at other hearings was higher, with as many as 60 people in attendance at some.

“Every meeting is important,” he said. “We learn something every time.” * * *

Several told the panel they were concerned that current legislative district boundaries meander and split towns and communities. The desire for more compact, coherent districts was a common theme.

“We need you to look at geographical lines as well as population,” said Wayne Carter, a Jeffersonville City Council member.

"Lawmakers seek public's input on redrawing state's political map: Public forum addresses what new political boundaries should look like for the next 10 years" is the headline to this story dated March 26th by Joe Aaron in the Evansville Courier & Press. Some quotes from the beginning of the long story:
EVANSVILLE, Ind. — Nearly half of the state legislators charged with drawing new Indiana legislative districts maps for the next 10 years were in Evansville on Friday afternoon to hear concerns and take suggestions from the public on what the new state House and Senate district boundaries should look like.

Most of the conversation focused on the irregular shapes of the state districts that were described as anything from "jigsaw puzzle pieces" to an outright "mess."

"The truth is that most people have a hard time figuring out who their state (representative) is, said Vanderburgh County GOP Chairman Wayne Parke. "To be honest, until my more recent involvement in politics, I had to carry around my voter registration card and look at it just to figure out who represented me. It needs to be based on some general, logical boundaries of some sort or another instead of just going around wherever." * * *

Boonville farmer Philip Springstun, 50, also urged the panel to keep rural areas together, saying that when a district includes a large chunk of an urban area, that portion gets much of the focus from the elected official.

Steve Schaefer, a vice president at the Chamber of Commerce of Southwest Indiana, also asked the panel to keep Vincennes and Evansville in the same Congressional district and that the new boundaries keep a "true champion" for both Crane Navel Base and Interstate 69.

"Redistricting process draws questions, ideas" is the headline of this March 26th story in the Gary Post-Tribune, reported by Christin Nance Lazerus. Some quotes:
CROWN POINT — State legislators were peppered with suggestions on how they should redraw the boundaries of voting districts at a Friday forum. * * *

Nearly 70 people gathered at Crown Point High School to discuss ideas, which included trying to contain communities into one district when possible and to prevent districts that cross county lines. * * *

Munster resident Eric Krieg presented his “buzzcut” plan, which calls for making districts south of the Little Calumet River more self-contained.

For example, Munster, Highland and Dyer would come together as House District 12; Schererville, St. John, St. John Township and Griffith would become House District 11; and parts of Crown Point, Lowell, Cedar Lake, Schneider and Winfield would become House District 19.

Krieg’s plan does have a political bent, providing “an exceptional opportunity for Republicans to gain seats.” * * *

St. John resident Joe Hero critized Lake County’s districts, saying it is “the second most gerrymandered county in the state.”

“Republicans are gerrymandered out of free and fair elections,” Hero said. “It’s time to make a change. We can correct years and years of corrupt districts in Lake County.”

Several of the speakers mentioned frustration with Lehe’s District 15, which stretches south from Schererville into Benton, Newton and White counties before ending in Monticello.

One speaker said that the people in District 15 have no common interests.

Porter County Assessor John Snyder, who lives in Portage, said it’s confusing for residents to contact the right person when three representatives cover different portions of the city.

The NWI Times also has a report on the Crown Point meeting, reported by Lu Ann Franklin. A quote:
Susie Barnhart, of Merrillville, told lawmakers current legislative districts don't combine like communities.

"House District 3 runs from Valparaiso to East Chicago. There is way too much difference between those communities," Barnhart said. "House District 19 includes Crown Point and Portage. You need to change the maps and keep communities together."

Michael Neal, of Schererville, told lawmakers that some current maps split neighborhoods into different districts.

"Neighbors across the street are not represented by the same person," said Neal, executive director of the Young Conservatives Alliance.

"We need to have communities of common interest represented together as much as possible," Neal said. "Crown Point should not be split. Schererville, Dyer and St. John should be together." * * *

Anne Muntean, of Ogden Dunes, testified she preferred districts that didn't cross county lines.

"We in Porter County want our districts to be in Porter County," Muntean said. "(The current map) is an irrational alignment of districts."

Richard Walter, of Crown Point, suggested new legislative districts be drawn in accordance with school districts.

"A core way of organizing a community is around school districts," he said.

"Residents on redistricting: Keep it simple: Public hearing draws ideas such as not counting inmates, reducing legislators" is the headline to a March 26th story in the Terre Haute Tribune-Star, reported by Howard Greninger. Some quotes:
TERRE HAUTE — Removing prison inmates from population counts, making districts more compact and simple in shape and reducing the number of state legislators in each district were among public suggestions on how the Indiana General Assembly should redraw legislative and congressional maps in Indiana.

About 50 people attended a public hearing, staged by Republican Indiana House and Senate election committees on the campus of Rose-Hulman Institute of Technology, for redrawing congressional and state legislative districts.

Tom Hansen, resident of Clayton, said state law requires districts be based on population and be contiguous. The state constitution states House seats cannot exceed 100 members while the Senate cannot exceed 50, “but there doesn’t have to be that many senators or representatives,” Hansen said.

The only politically neutral concept to redraw districts, Hansen said, is to base districts on compactness. Nine congressional districts must be drawn this year. Each of those can be drawn, based on population, in simple shapes, he said. Then in each congressional district, place 10 Indiana House seats and five Indiana Senate seats, Hansen said. * * *

Kelsey Kauffman, adjunct professor of university studies at DePauw University, recommended legislators not count state or federal prison inmates in population counts when establishing voting districts. “That means the boundaries of a district would have to expand out to take a like number of residents” in a district, she said.

DePauw University student Shreeya Neupane said House District 9, in LaPorte County, has 8 percent of its district’s population from inmates, the most in the state. House District 46 in Vigo County has 5 percent of its district population from inmates, while House District 45 in Sullivan County has 3 percent of its population counted with inmates, and Senate District 39, in Sullivan County, has 4 percent.

DePauw student Stephen Shapiro said not counting inmates is politically neutral and constitutionally sound because inmates are “disenfranchised, their residency is non-voluntary, are not participants in the local economy and are not beneficiaries of local government decisions.”

Paul Chase, representing AARP Indiana and a resident of Brown County, told legislators he would like to see districts drawn “incumbent blind,” making districts in simple shapes and on “what makes sense instead of protecting an incumbent.”

Posted by Marcia Oddi on Monday, March 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?

But first, a new quarter begins this Friday, April 1st. Please become an ILB supporter!

From Sunday, March 27, 2011:

From Saturday, March 26, 2011:

Posted by Marcia Oddi on Monday, March 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 3/28/11):

Wednesday, March 30th

Next week's oral arguments before the Supreme Court (week of 4/6/11):

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 3/28/11):

Monday, March 28th

Tuesday, March 29th

Wednesday, March 30th

Thursday, March 31st

Next week's oral arguments before the Court of Appeals (week of 4/8/11):

Monday, April 4th

Tuesday, April 5th

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, March 28, 2011
Posted to Upcoming Oral Arguments

Sunday, March 27, 2011

Ind. Law - "Hispanics in southern Indiana fear bill targeting undocumented immigrants"

That is the heading to a lengthy story today in the Louisville Courier Journal, reported by Ben Zion Hershberg.

The Indianapolis Star website has an editorial today accompanied by video clips of the bill's sponsor, state Sen. Mike Delph, responding to questions from the Star editorial board.

See also this Christian Science Monitor story, authored by Aaron Couch, from last Wednesday, headed "State illegal immigration laws: What have they accomplished?"

Posted by Marcia Oddi on Sunday, March 27, 2011
Posted to Indiana Law

Ind; Gov't. - "Do farms and homes belong in the same neighborhood? Elkhart County wrestles with zoning issues"

Tim Vandenack reports in a long, well-worth-reading story in the Elkhart Truth that begins:

Do homes and residential neighborhoods belong in the corn fields and other farm land spread across Elkhart County?

Or should new residential development in the county be focused on the periphery of the towns and cities?

It's an oft-debated topic, and the issue is generating sparks as an April 14 public hearing looms on the proposed overhaul of Elkhart County's 46-year-old zoning ordinance, which governs development in the unincorporated corners here.

On the one hand you have officials like Bob Watkins, director of the Elkhart County Planning Department, who thinks residential development in the county fits best on the edges of cities and other already urbanized areas.

"We've made no secret of our desire to encourage growth of residences near the towns and near the cities," he said, alluding to measures in the proposed new ordinance meant to promote residential development near Elkhart County's urban clusters.

The closer you build to a city or town, Watkins argues, the better served homeowners will be. That's where sewer, water and other such services are more readily available. Further afield, fire and police protection can get spotty, while rural roads aren't always built to handle the traffic brought on by a subdivision.

For many developers, though, putting new restrictions on the ability to build in rural areas is tantamount to an attack on landowners' rights. Plus, the new zoning rules, they fear, could drive up the cost of housing in Elkhart County as areas earmarked for residential growth are pared back.

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

Ind. Gov't. - More on: "Daniels: I'll veto amended prison bill Changes pushed by prosecutors make cost too high, governor says"

Updating this ILB entry from last Wednesday, Charles Wilson of the AP reported yesterday in a story that begins:

PENDLETON, Ind.— Angry prosecutors have derailed a legislative plan to reduce Indiana's corrections costs by shortening some criminal sentences, and now the state seen as a national model for fiscal austerity could be forced to find millions of dollars for new prisons.
Marshall Clement, project director for the Council of State Governments Justice Center that helped draw up the Indiana plan and those in 13 other states, said even with credit for good time and other time cuts, violent inmates in Indiana spend more time in prison than in many other states.

He said the center hadn't encountered organized opposition from prosecutors in any other state.

Daniels, who ordered state agencies to cut more than $300 million in recent years to avert a deficit, endorsed the Pew Report's initial recommendations and supported the initial legislation. "The main point here was to incarcerate people in a smarter way and to save Indiana taxpayers a lot of money," he said after a recent speech. "So I'm not going to sign something that heads in the opposite direction and costs taxpayers money beyond what would already be the case."

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

Courts - "Welcome to Wal-Mart: The Biggest Case of the Term"

That is the headline to this story in The Atlantic, written by Andrew Cohen. The first paragraph:

On Tuesday morning, the United States Supreme Court will hear argument in Wal-Mart v. Dukes, an already-epic battle between the world's largest corporation and perhaps as many as one million current and former employees, all of them female, who as potential plaintiffs claim the giant retailer engaged in an unlawful pattern and practice of gender discrimination. It is easily one of the biggest cases of the Court's present term and, by many accounts, the biggest class-action discrimination case ever fought. Depending upon how extensively the justices rule, and no matter which side prevails, the Dukes case could dramatically alter the balance of power in civil cases between corporate defendants and the plaintiffs' bar.
Here is the SCOTUSblog case page for Wal-Mart v. Dukes.

A long AP story today by Mark Sherman also emphasizes the important of the case:

At stake is whether the suit can go forward as a class action that could involve 500,000 to 1.6 million women, according to varying estimates, and potentially could cost the world's largest retailer billions of dollars.

But the case's potential importance goes well beyond the Wal-Mart dispute, as evidenced by more than two dozen briefs filed by business interests on Wal-Mart's side, and civil rights, consumer and union groups on the other.

The question is crucial to the viability of discrimination claims, which become powerful vehicles to force change when they are presented together, instead of individually. Class actions increase pressure on businesses to settle suits because of the cost of defending them and the potential for very large judgments.

Columbia University law professor John Coffee said that the high court could bring a virtual end to employment discrimination class actions filed under Title VII of the Civil Rights Act of 1964, depending on how it decides the Wal-Mart case.

"Litigation brought by individuals under Title VII is just too costly," Coffee said. "It's either class action or nothing."

[More] Joan Biskupic, the capable Supreme Court reporter for USA TODAY, will have this long story in the morning's paper. A sample:
The question at this point is not whether Wal-Mart discriminated against the women, but whether this group of female workers should ever have been certified to bring a class-action lawsuit. Lower U.S. appeals courts have used varying standards for class certification, and high-court resolution of the Wal-Mart battle could clarify the national ground rules for workers or consumers who try to challenge practices at big companies.

In addition, the case tests the Supreme Court's pro-business bent. "Powerful companies such as Wal-Mart have consistently enjoyed a home field advantage" at the court under Chief Justice John Roberts, asserts the liberal Alliance for Justice in a new report stressing the stakes in the Wal-Mart dispute for women who have traditionally earned less than men.

Posted by Marcia Oddi on Sunday, March 27, 2011
Posted to Courts in general

Law - NYT focuses on the sexting issue

Sentencing Law Blog has collected links to the stories here.

Posted by Marcia Oddi on Sunday, March 27, 2011
Posted to General Law Related

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

Here is the Clerk's transfer list for the week ending March 25, 2011. It is one page (and 1 case) long.

The petition to transfer in that case, Antoine McSwain v. State of Indiana, was dismissed by the Supreme Court. __________

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 Sunday, March 27, 2011
Posted to Indiana Transfer Lists

Ind. Law - "Don't alter constitution over trip to altar"

That is the headline to an editorial today in the NWI Times. It begins:

Indiana law defines marriage as between a man and a woman, the traditional definition. Not content with a mere state law, a Senate committee voted last week to write that definition into the state's constitution.

That tinkering with the constitution adds gasoline to a legislative session that already is going down in flames.

Need we remind the Senate Judiciary Committee and the supporters of House Joint Resolution 6 that the House Democrats are holding up progress because of what they perceive as a radical Republican agenda? This proposal reinforces their view.

Gov. Mitch Daniels is right to try to steer his Republican Party away from social issues like this so it can focus on the more pressing fiscal concerns.

Republicans were swept into office in a decisive midterm election last year, but that was because of the economy and fiscal concerns. To try to translate that election into a mandate for sweeping social changes is misreading the voters' minds. The voters wanted a party of limited government, not intrusiveness.

Nationally, polls have shown support for gay marriage and civil unions increasing over the years, especially among the young. As older generations die out, so do the traditional views on marriage.

Also this weekend, the Boston Globe has a long story by Mark Arsenault headed "Gay marriage no longer such a divisive political issue." The lede:
WASHINGTON — Once guaranteed to whip up voter opposition, same-sex marriage is losing much of its bite as a political wedge issue, undercut by greater concerns about the economy and growing support for gay marriage among voters.
"Seeding storm clouds" is the apt heading to Dan Carpenter's opinion column today in the Indianapolis Star. Some quotes:
The Indiana Senate will take our state to the brink of civil war this week when it votes, by a biblically thumping margin, to inscribe injustice into the Indiana Constitution.

The Senate Judiciary Committee set the stage last week when it endorsed the ban on same-sex marriage and, for good measure, refused to make an exception for civil unions, under which gay couples enjoy various benefits of family partnership such as inheritance and hospital visitation.

By voting to deny any and all government recognition to potentially thousands of loving households, the people's elected servants put the lie once and for all to their hollow refrain that they seek to defend "traditional marriage" and not to attack anyone.

The Catholic Church, which sanctimoniously blesses this appalling agenda, and the Catholic state attorney general, who piously promises to defend it, ought to at least stop kidding themselves and us, their fellow Catholics, that they're following the Gospels.

It is a Christianity Jesus would not recognize that fuels this crusade, and it is a religious war that will ensue. * * *

Who will say discrimination is discrimination -- and no law, no constitutional amendment and no process that perpetuates it is acceptable?

Not Gov. Mitch Daniels, a better friend to gay and lesbian citizens than any Democratic governor, but a presidential aspirant with enough battles on his hands.

Not the Democratic Party, sadly. While the Republicans bear the guilt for elevating bigotry to top priority, the party of the people has hardly fought for gay people with the same ferocity it has exhibited -- admirably -- for teachers and other unionized workers.

Remember, the Democrats postponed their filibuster flight long enough for the House to pass some proposals -- including the marriage resolution. The self-anointed champion of the downtrodden, Rep. Pat Bauer, voted for it.

The dogs of war, thus, appear loosed. Polite society is unmoved and shaken. It shall be a time of moral testing, much like that which prompted William Butler Yeats to write a lasting epitaph: "The best lack all conviction, while the worst are full of passionate intensity."

Posted by Marcia Oddi on Sunday, March 27, 2011
Posted to Indiana Law

Ind. Courts - "West Lafayette police shooting raises mental health issues"

Good story today by Sophia Voravang of the Lafayette Journal Courier about difficulties of law enforcement and judicial system in dealing with mental ill adults. A quote from the lengthy story:

The bizarre behavior that morning -- he allegedly alluded to a bomb and refused to pull over because of it, investigators said -- is the latest example of Eric Tendam's contact with law enforcement and why his parents desperately want him treated for mental illness.

"Our son is clearly suffering from mental illness. Our hope is that the court will see this and mandate mental health care for him," Ida Tendam, who currently is in Texas, wrote in an email to the Journal & Courier on Friday.

"We have tried for years to get help, to no avail."

Posted by Marcia Oddi on Sunday, March 27, 2011
Posted to Indiana Courts

Environment - More on: "Wind turbines can bring financial windfall"

ILB entries from Aug. 9 and Nov. 2, 2010 told the story of hopes raised and dashed in Lake County where there was talk of an Australian wind farm developer promising "$11,000 per year per turbine" for rights to place turbines on farm land in the county.

Yesterday a new story in the Gary Post-Tribune by Diane Krieger Spivak, headed "New wind company looks at Lake County ." Some quotes:

Another international wind company is taking a look at south Lake County as a potentially viable location for a $5 billion 100-megawatt wind farm that could create up to 100 jobs.

London-based International Power plc’s North American operations wants to locate a 100-turbine wind farm in Eagle Creek Township, east of Lowell, the same area in multinational wind company Windlab had hoped to place a wind farm last year.

Windlab abandoned the project in October after determining that two factors — the Kankakee River drainage system and residential growth in the area — made it unfeasible.

Andy Paterson, president and CEO of Michigan Energy Generation, which has a development agreement with International Power, said Michigan Energy does not see the same problems with the site that Windlab did.

“To us that didn’t make sense,” Paterson said. Building in flood plains will add to the cost but won’t limit you from building.” In one of International Power’s windfarms is located on the shores of Lake St. Claire, in Canada. * * *

The company pays property owners based on the total revenue produced by the farm divided by the total number of turbines. That could be a collective $1 million a year. The project could also put another $200,000 and $400,000 a year in property taxes into the local economy, he said. * * *

Collection of wind data, which involves erecting a meteorological tower, is critical, and could take up to two years. Other studies include bird and bat migration. The entire process could take two to five years, Paterson said.

“Indiana’s got excellent wind resources,” Paterson said, thanks to the Great Lakes and predominant southwestern winds. * * *

Morocco lawyer Dan Blaney is again representing the property owners as he did with the Windlab’s project that would have placed up to 200 turbines on 23,000 acres at the eastern end of Lake County, stopping a mile north of the Kankakee River. Blaney said he sent copies of Benton and Newton counties’ wind ordinances this week to Lake County Council attorney Ray Szarmach. Szarmach said he planned to draw up a utility-scale wind ordinance for Lake County, as a separate ordinance from the small,home- and agriculture-based wind energy systems ordinance that went into effect last fall.

“We’re looking for encompassing more issues,” Szarmach said. “We’re try to expand on that. Szarmach said he hoped to have a rough draft next week, in time for Council members to study it before the Council’s April 12 meeting.

At the same time, the NWI Times has a story that makes no mention of wind turbines, headed "Surging land prices have local analysts, farmers worried bubble could burst." Bowdeya Tweh reports:
[A]fter taking a slight dip during the recession, agricultural land values are continuing to rise and have doubled their average from a decade ago. * * *

According to Brent Gloy, director of Purdue University's Commercial Agriculture Center, the value of average quality land in Indiana is approaching $4,500 an acre, up from less than $1,000 an acre in 1987. Growing world incomes, increased use of food crops for biofuels, low interest rates and a weaker U.S. dollar have helped push crop prices and land values higher, Gloy said in a Federal Deposit Insurance Corp. presentation earlier this month.

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

Ind. Courts - Still more on: Fort Wayne Airport defends handbill policies in face of lawsuit

Updating this ILB entry from March 12, 2011, Rebecca S. Green of the Fort Wayne Journal Gazette reports in a March 25th story:

A few weeks ago, the Fort Wayne-Allen County Airport Authority stood by its rules governing who can say what and where at Fort Wayne International Airport.

The airport authority altered those rules this week in response to issues raised in a federal lawsuit.

According to documents filed in U.S. District Court in a case brought against the airport by Paul Anthony Stanton and his ACLU attorney, the airport board altered the rules a bit, changing some of the places where people can hand out literature or other information at the airport.

In January, Stanton sued the airport authority in protest of rules enacted by the airport in mid-November, arguing they violated his First Amendment rights to free speech.

The rules limit “expressive activity” to a small area outside the terminal and require a permit be obtained before any protest or leafleting occurs, according to court documents. * * *

In his lawsuit, Stanton sought a ruling from a federal judge to declare the rulings invalid on constitutional grounds. He also sought a preliminary injunction to prevent the enforcement of the rules while the lawsuit moves through the courts.

But on Tuesday, attorneys for the airport filed notice with the court that they had changed the rules, expanding the areas where people can engage in “expressive activity” and reducing the amount of notice needed to engage in such activity.

“The whole purpose is to allow people to have free speech operations without interfering with the legitimate operations of the airport,” said Mark Baeverstad, attorney for the airport. “I hope that the American Civil Liberties Union will recognize that there’s not much of an argument at this point and they’ll dismiss the lawsuit.”

Posted by Marcia Oddi on Sunday, March 27, 2011
Posted to Indiana Courts

Friday, March 25, 2011

Law - "Does the Supreme Court care more about free speech for the wealthy than about political corruption? [Updated]"

Richard L. Hasen, the William H. Hannon distinguished professor at Loyola Law School, and author of the Election Law Blog, has this article today in Slate. A quote:

On Monday, the Supreme Court will hear oral arguments in McComish v. Bennett, a case from Arizona in which those wealthy opponents and outside groups have complained that this additional spending violates their First Amendment rights. And once again, just a year after the court in Citizens United turned on the corporate-money spigot by allowing unlimited corporate spending in elections (and the FEC allowed corporations to hide much of their donations), the court appears poised to side with the wealthy in a campaign finance case.
Here is the SCOTUSblog case page.

[Updated 3/26/11]
More coverage of Monday's oral argument. This one is from Lyle Denniston of SCOTUSblog, and is headed "Politics and public money: The Court holds oral argument Monday on the constitutionality of Arizona’s system for using public funds to subsidize some state political candidates, a case with nationwide implications."

Posted by Marcia Oddi on Friday, March 25, 2011
Posted to General Law Related

Courts - "Minnesota Supreme Court Issues Test Period for Cameras in the Courtroom"

Andrew Gauthier's story in MediaBistro begins:

The Minnesota Supreme Court has instituted a two-year test period to examine the use of cameras in the courtroom.

While the high court struck down a petition by several local news organizations to revise the state’s restrictions on recording devices in district courts for criminal cases, the test period, which will begin July 1st, will allow for the audiovisual recording of some civil cases.

Beginning in July, video cameras, still cameras, and other recording devices will be allowed into the courtrooms of certain civil cases, pending a judge’s approval.

Indiana had a test. The last mention the ILB can find of it is this August 4, 2008 entry quoting a Fort Wayne News Sentinel editorial that began:
The Indiana Supreme Court should just decide one way or the other whether to allow cameras in the courtroom instead of continuing to tease Hoosiers with the issue.

Posted by Marcia Oddi on Friday, March 25, 2011
Posted to Courts in general

Ind. Gov't. - Still more on: Another Indiana attorney loses job over Wisconsin labor issue

An Above the Law entry today begins:

What is up with state prosecutors in the Midwest? Over the past year or so, they’ve been making huge fools of themselves. See, e.g., Wisconsin’s Ken Kratz (of “I am the prize” fame); Michigan’s Andrew Shirvell (of “homophobic nut job” fame); and Indiana’s Jeff Cox (of “Use Live Ammo” fame).

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

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

For publication opinions today (2):

In Timothy D. Sexton v. Donna M. (Sexton) Sedlak, a 24-page, 2-1 opinion, Judge Crone writes:

Timothy D. Sexton (“Father”) and Donna M. (Sexton) Sedlak (“Mother”) were married and had three children. After their divorce, they initially shared custody. Subsequently, Mother filed a petition to modify custody. The trial court awarded primary physical custody to Mother and ordered Father to pay child support. For more than three years, Father paid child support consistent with the trial court's order. Then the parties began deviating from the order as to physical custody of the children, and Father stopped paying child support. On June 12, 2009, Father filed a petition for emancipation and to modify child support. The trial court denied his petition for emancipation and set his child support obligation at $117. Father appeals, arguing that the trial court erred in failing to order retroactive modification of his child support to a date prior to the filing of his petition to modify; that the trial court erred in denying his petition for emancipation; and that the trial court abused its discretion in determining the amount of his child support obligation. As to the first two issues, we find no error in the trial court's decisions and affirm. As to the amount of Father's child support obligation, we find that the trial court failed to consider that one child was partially supporting herself, and therefore we reverse and remand to determine Father's child support obligation in light of the child's capability to partially support herself. * * *

KIRSCH, J., dissents with separate opinion.
BRADFORD, J., concurs. * * *

KIRSCH, Judge, dissenting. I respectfully dissent. * * *

Given that the parents had agreed to a modification of support that was acceptable to both over an extended period of time, that the modification provided for the reasonable support of their children, that the parties made a good faith effort to seek court approval of such modification, and that there has been no showing that Father has failed to contribute significantly to the support of the children, I believe the trial court abused its discretion in failing to make the modification of support retroactive to the date of filing of Mother's petition in 2005.

I would reverse the trial court's order and remand with instructions to modify the support order retroactive to the date of the filing of Mother's petition in September, 2005.

In William Hurt v. State of Indiana, a 13-page opinion, Judge Barnes writes:
William Hurt appeals his convictions for Class C felony reckless operation of a vehicle in a highway workzone resulting in death and Class C felony reckless disregard of a traffic control device in a highway workzone resulting in death. We affirm in part and reverse in part. * * *

There is sufficient evidence to support Hurt's conviction for Class C felony reckless disregard of a traffic control device in a highway workzone resulting in death. We reverse Hurt's conviction for Class C felony reckless operation of a vehicle in a highway workzone resulting in death on double jeopardy grounds.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of J.M.; B.M. v. IDCS (NFP)

Term. of Parent-Child Rel. of S.W.; C.W. v. IDCS (NFP)

NFP criminal opinions today (3):

Brian Calaway v. State of Indiana (NFP)

Douglas (Sommers) Summers v. State of Indiana (NFP)

Bronco L. Morgan v. State of Indiana (NFP)

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

Ind. Courts - COA panel hears oral argument at Indiana State student union

Lisa Trigg reports today in the Terre Haute Tribune-Star:

TERRE HAUTE — In the latest episode of “Appeals on Wheels,” three judges listened Thursday to an argument that a man’s “sloppy kiss” was not sexual battery, even though the recipient of the kiss was asleep when he kissed her.

While the kiss did awaken the sleeping woman, she rebuffed his advances and asked him to stop, which he did.

Did his actions constitute sexual battery, as defined by Indiana law? Was the jury misled about the charge by the prosecutor? Did the trial court accurately instruct the jury about the charge the man faced?

A panel of judges from the Court of Appeals of Indiana heard oral arguments in Roland Ball v. State of Indiana in front of a student audience at Indiana State University, giving exposure to courtroom drama, or the lack thereof, to many potential law students.

“For us, this is a real courtroom,” Chief Judge Margret G. Robb said, explaining that the court hears oral argument at venues across the state to enable Hoosiers to learn about the judicial branch.

“I think you have a right to know how your judiciary operates,” Judge Carr L. Darden added. Courtrooms in Indiana are open to the public, and it can be an eye-opener to see how the judicial process works. * * *

The trial courts are the workhorse of the Indiana judiciary system, Robb said, recognizing the efforts of four Vigo County judges who attended the Court of Appeals session — Vigo Superior Court judges Phillip Adler, David Bolk, Michael Rader and Christopher Newton.

A student question about the politicization of the retention of judges brought varying opinions from those who sit on the bench.

Darden said that while some states appoint judges for life, Indiana has a mixture of elected and appointed justices. Some judges come to the bench with an agenda, others are faced with making unpopular decisions that could result in their ouster in future elections.

Bolk noted that the issue has been discussed at the state judiciary level, and there is a wide divergence of opinion. Some judges feel they should be elected, while others feel they should be retained on a merit-based system, he explained.

Another student question about withholding political views when issuing decisions brought insight from Darden.

“When it’s a bench trial, you listen with a different ear,” he said. “When a jury hears a case, you’re a reference. Sometimes, it’s better to put faith in a jury, and if it’s a technical matter, it may be better to go with a bench trial.”

Robb agreed that while she may have a personal preference on an issue, her personal opinion does not fit within the legal parameters of the court.

Judge Newton, who hears many of the county’s domestic violence cases, said there are times he has felt he had to make decisions that were “pretty distasteful” and against his personal belief, but the law defines his options.

Rader, who oversees the county drug court, agreed.

“There’s a common misperception from the public that judges have ‘power’,” Rader said, but looking at the facts and the law, judges have little discretion. “We are bound by what the law is.”

Asked about how the judicial landscape has changed through the years, Darden replied with a smile.

“Oh, it’s gotten much better in my time,” the Tennessee native said. “I was the only African-American in my graduating class.”

From her perspective, Robb pointed out that it is now common to see women in the judiciary around the state.

“I think of the 5 women out of 15 on the Court of Appeals, we are probably a majority,” she said, laughing.

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

Ind. Gov't. - "The Indiana Citizens Redistricting Commission is recruiting amateur cartographers"

See the story here, by Brian Francisco of the Fort Wayne Journal Gazette. Notable to me is that the Indiana Citizens Redistricting Commission is correctly pointing out:

[W]hile the General Assembly must draw congressional maps by April 29, it can take all year to have public hearings and approve legislative districts in early January [2012], well ahead of the 2012 primary election campaigns.

“This isn’t easy. It’s not sitting down and drawing squares on a map,” Vaughn said. “Take it slow and do it right is our message.”

Until recently, stories in the press had inaccurately reported that all redistricting must be completed by the end of April, 2011.

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

Ind. Decisions - Both Easterbrook and Posner criticize lawyers this week

But as far as I know, not in Indiana cases. See this story by Martha Nell in the ABA Journal blog, headed "7th Circuit’s Posner Rebukes ‘Quarrelsome Lawyers’ for Tendentious Bickering,’ Threatens Sanctions."

Posted by Marcia Oddi on Friday, March 25, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on: Another Indiana attorney loses job over Wisconsin labor issue

Updating this entry from late yesterday, Vic Ryckaert and Kevin O'Neal report this morning in the Indianapolis Star under the headline: "Official resigns over email idea to stage assault: Indiana deputy prosecutor's proposal aimed to discredit unions in Wisconsin." It begins:

For the second time, an Indiana public official has lost his job because of provocative -- some would say foolish -- comments made about the political brouhaha in Wisconsin.

Carlos F. Lam, a Johnson County deputy prosecutor, resigned Thursday after acknowledging he sent an email last month urging the Wisconsin governor to discredit labor union protests in his state by orchestrating a fake assault on the governor.

Possibly, Lam suggested, the pretend assailant might even use a firearm.

Lam's boss, Prosecutor Bradley D. Cooper, accepted the resignation. He called Lam's Feb. 19 email to Gov. Scott Walker a "foolish suggestion."

Last month -- on Feb. 23 -- the Indiana attorney general's office fired deputy attorney general Jeff Cox after he suggested in blog posts and on Twitter that police use live ammunition on protesters who had poured into Wisconsin's Capitol.

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

Ind. Gov't. - "Indiana Statehouse standoff could affect national races"

So reported Kevin Rader of WTHR 13 Eyewitness News last evening. A quote:

The governor was honored by Freedom Works, a Tea Party partner, for his work in government during a Statehouse ceremony Thursday.

Ironically, Gov. Daniels' mentor Sen. Richard Lugar, the man many in the Indiana Tea Party have targeted for defeat, even weighed in on the state's legislative stalemate.

"Democracy will not work in Indiana with legislators in Illinois. They have to get over this tendency, wherever it came from, and get down to business," said Sen. Lugar.

An Indianapolis Star story this morning headed "New day, same refrain: Lawmakers, protesters, media have settled into routines," by Mary Beth Schneider and Heather Gillers begins:
It was deja vu all over again Thursday in the Indiana Houuse.

A closed-door meeting late Wednesday between House Speaker Brian Bosma, R-Indianapolis, and House Minority Leader B. Patrick Bauer, D-South Bend, had ignited optimism that the monthlong standoff was nearing an end.

But Thursday proved no different from the past 32 days.

In short, same-old, same-old.

The long story concludes:
Meanwhile, the two Democrats in the House on Thursday -- Reps. Scott Pelath of Michigan City and Charlie Brown of Gary -- cautioned against premature predictions that the impasse is over.

"Exuberance is not helpful in negotiations," Pelath said. "Tempering optimism is what helps get you through this.

"Because negotiating is very hard and unglamorous work."

On the other hand, these tweets from the Bloomington H-T govtracker this morning:

Simpson was in room w/ Bosma & Bauer this week. Bosma knows exactly what House Dems want, she said. Leaders are 'very, very close.' #INLegis


Sen. Vi Simpson 'as certain as I can be' that statehouse standoff will end 'in next few days.' #INLegis

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

Ind. Law - CLE: Marriage and the Future of DOMA, April 7

With Tom Fisher AND Dawn Johnsen! Here is some info:

Please join us April 7 for a mini-symposium on


Featuring a lecture on "One State's Challenge to the Defense of Marriage Act"
by Maura Healey, Chief, Civil Rights Division, Massachusetts Attorney General's Office

followed by a panel of legal and academic experts:

Thomas M. Fisher, Solicitor General, State of Indiana
Dawn Johnsen, Walter W. Foskett Professor, IU Maurer School of Law,
and former Deputy Assistant Attorney General, U.S. Department of Justice
Brian Powell, Rudy Professor of Sociology, IU College of Arts & Sciences
and co-author of Counted Out: Same-sex Relations and Americans' Definitions of the Family
Deborah Widiss, Associate Professor, IU Maurer School of Law

Moderated by Steve Sanders, University of Michigan Law School

3 p.m. Thursday, April 7, Maurer School of Law, IU Bloomington. Free and open to the public.
Indiana CLE available (pending approval). More info and registration here.

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

Thursday, March 24, 2011

Ind. Gov't. - Still more on the Wisconsin walkout issues

Updating this entry from March 22nd, about the case in Wisconsin appealing "a temporary restraining order (TRO) issued on March 18, 2011, which enjoins La Follette from publishing 2011 Wisconsin Act 10, commonly known as the Budget Repair Bill, until the circuit court can rule on the underlying action," the Wisconsin Court of Appeals today acted by instead certifying the issues to the Wisconsin Supreme Court:

We certify the following questions: (1) whether striking down a legislative act—also known as voiding—is an available remedy for a violation of the Open Meetings Law by the legislature or a subunit thereof; and, if so, (2) whether a court has the authority to enjoin the secretary of state’s publication of an act before it becomes law.
These are Wisconsin-specific issues. Here is today's ruling.

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

Courts - Do indigent persons have a constitutional right to counsel if they face jail for failing to pay child support?

That issue was before the SCOTUS yesterday in the case of Turner v. Rogers. Marcia Coyle of the National Law Journal had a report this morning that began:

A number of justices appeared resistant to extending the Sixth Amendment right to civil contempt proceedings, which would be a significant step towards the "civil Gideon" sought by the American Bar Association and other organizations. Gideon v. Wainwright was the landmark 1963 decision holding that indigent defendants have a right to counsel in state criminal trials.

"I just have the sense that there are thousands of these hearings around the country, and they're very important to ensuring child support, and in many cases where counsel are now waived or not present, the noncompliant parent is going to ask for counsel and that we're going to change the entire landscape of domestic relations proceedings," Justice Anthony Kennedy told former solicitor general Seth Waxman of Wilmer Cutler Pickering Hale and Dorr during arguments in Turner v. Rogers.

Waxman represented Michael Turner, a South Carolina father who first spent six months and later, 12 months in jail after being held in contempt of a court order to pay back child support. He did not have a lawyer at the contempt proceedings.

Here is brief SCOTUSblog coverage, with valuable links.

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

Ind. Gov't. - Another Indiana attorney loses job over Wisconsin labor issue [Updated]

First it was Indiana Deputy Attorney General Jeffrey Cox. Now it is Johnson County Deputy Prosecutor Carlos Lam. Cox reportedly urged use of live ammunition against Wisconsin protesters. Lam reportedly sent an email to the Governor of Wisconsin suggesting:

“If you could employ an associate who pretends to be sympathetic to the unions’ cause to physically attack you (or even use a firearm against you), you could discredit the unions,” the email said.
The quote is from an email, reproduced in full in this story from WisconsinWatch.org. WISHTV this evening has a briefer, albeit perhaps clearer, version of the story.

The stories report that Lam sent the email last weekend; they do not comment on whether Lam was aware of the earlier Cox incident.

[Updated at 9:25 pm] I just took another look at the Lam email's date - it is Feb. 19th. That is the same date, Saturday, Feb. 19th, that Jeffrey Cox sent his tweet, so it was not the "earlier Cox incident" after all. See also Charles Wilson's AP story.

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

Ind. Gov't. - More on: "Daniels: I'll veto amended prison bill Changes pushed by prosecutors make cost too high, governor says"

Updating yesterday's ILB entry, here are several editorials today:

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

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In In the Matter of the Paternity of G.H.; L.R. v. N.H., a 7-page opinion, CJ Robb writes:

L.R. (“Father”) appeals the trial court’s order finding him in contempt for failure to pay child support. For our review, Father raises a single issue which we restate as whether the evidence supports a finding that his failure to pay child support was willful. Concluding the evidence does not support a finding that Father willfully failed to pay, and therefore the trial court abused its discretion by finding him in contempt, we reverse. * * *

A child support order is enforceable by contempt only if the parent has the financial ability to pay the support due and his or her failure to pay is willful. Pettit v. Pettit, 626 N.E.2d 444, 447-48 (Ind. 1993). In challenging the trial court’s finding that he was in contempt, Father concedes that his child support payments were irregular and not current. He argues, however, that his failure to pay was not willful because he paid while employed, thereafter made diligent efforts to find employment, and began to pay again when he started receiving unemployment benefits. We agree.

In Jeffrey Wooten v. State of Indiana , a 13-page opinion, Judge Najam writes:
Jeffrey Wooten appeals the trial court’s revocation of his probation. Wooten asserts that he was not on probation at the time of the trial court’s order and, therefore, he is being wrongfully imprisoned. The State asserts that this court has no jurisdiction over Wooten’s appeal because Indiana Post-Conviction Rule 2 does not permit belated appeals from the revocation of probation. We agree with the State. Further, there is substantial evidence in the record that supports the trial court’s conclusion that Wooten was properly before it for a probation revocation proceeding. Thus, we also decline Wooten’s invitation to exercise jurisdiction under our inherent authority to hear appeals that present a matter of great public interest. Dismissed.
In Michael E. Cohee v. State of Indiana , an 8-page opinion, Judge Najam writes:
Michael E. Cohee brings this interlocutory appeal from the trial court's denial of his motion to suppress evidence. Cohee raises a single issue for our review, which we restate as follows: whether he was entitled to be read his Miranda rights or to exercise his right to counsel before he submitted to a chemical test pursuant to Indiana Code Section 9-30-6-2(a). We affirm. * * *

Cohee's argument on appeal is that, once Officer Miller told him that he was “under arrest,” Officer Miller was required to advise him of his rights under the Fifth Amendment to the U.S. Constitution and Article I, Section 13 of the Indiana Constitution before Officer Miller could ask him to consent to a blood test under Indiana Code Section 9-30-6-2(a). In other words, Cohee argues that he was entitled to be read his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (Ind. 1975), in order to avoid the potential of self-incrimination. It is undisputed that Officer Miller did not read Cohee any of those rights after she informed him that he was under arrest.

Cohee's federal argument is premised on his assumption that the chemical test sample he provided was self-incriminating evidence protected under the Fifth Amendment. It has long been the law that that is not the case. In 1966, the Supreme Court of the United States considered an identical claim from a defendant in a driving-under-the-influence prosecution. The Court rejected his claim and expressly held that

the privilege [against self-incrimination] protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.
Schmerber v. California, 384 U.S. 757, 761 (1966). * * *

Remarkably, neither party on appeal discusses Schmerber or Davis. * * *

In sum, Cohee's assertions that he was entitled to his rights under either Miranda or Pirtle fail as a matter of law. Thus, the trial court properly denied his motion to suppress the evidence against him, and we affirm the court's judgment.Affirmed.

NFP civil opinions today (4):

Matthew Riddle v. Lee Rimer (NFP)

Anthony Guzman v. C.K. Gray, et al. (NFP)

Charles E. Justise, Sr. v. Jim Basinger, et al. (NFP)

S.R. v. Review Board (NFP)

NFP criminal opinions today (5):

Steven Green v. State of Indiana (NFP)

Flavio Gonzalez v. State of Indiana (NFP)

Ricardo Rico v. State of Indiana (NFP)

Matthew L. Skinner v. State of Indiana (NFP)

Francheska McGraw v. State of Indiana (NFP)

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

Ind. Decisions - One Indiana decision today from 7th Circuit, and a bankruptcy decision

In U.S. v. Mitchell (SD Ind., Barker), a 9-page opinion, Judge Manion writes:

Rollie Mitchell was convicted for distributing cocaine base and sentenced to life imprisonment, in large part due to his participation in the murder of a confidential informant in his case. He appeals his sentence. We find that the district court properly calculated the guidelines range and did not improperly consider Mitchell’s exercise of his Sixth Amendment right to counsel. We therefore affirm.
In the bankruptcy decision, Nicholas and Penny Stamat v. U.S. Trustee, an 18-page opinion, Judge Williams writes:
Nicholas and Penny Stamat filed for bankruptcy under Chapter 7 of the Bankruptcy Code on July 26, 2007. The Trustee alleged that the Stamats omitted numerous assets and transactions from their filings and accompanying documentation, including past business interests, two limited partnerships, a $10,000 settlement payment, and $90,000 obtained through a refinancing of a second home, and misreported their 2006 income. The Trustee filed a complaint objecting to the discharge of the Stamats’ debt under 11 U.S.C. §§ 727(a)(2), (4), and (5), arguing that the Stamats concealed estate assets with the intent to defraud their creditors, fraudulently made false statements under oath, and failed to satisfactorily explain the loss of assets. The bankruptcy court denied discharge under all three grounds. The Stamats appealed that ruling to the district court, which affirmed the denial of discharge under section 727(a)(4) for fraudulently making a false oath. We also find that the Stamats made numerous omissions, that these omissions displayed a reckless disregard for the truth, and were material to the Stamats’ bankruptcy case. Therefore, we affirm the denial of discharge under section 727(a)(4).

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

Courts - "New Iowa justices will campaign when facing retention vote"

From the long story in the DesMoines Register by Jans Manuel Krogstad, who reports:

Iowa's three new Supreme Court justices said they are prepared to campaign in 2012 when they face a retention vote.

The justices said that they prefer not to campaign to keep their seats, but that they learned a lesson from last fall's successful campaign that ousted three justices.

These are the three new justices who were appointed by the Governor to replace:
Iowa Supreme Court Chief Justice Marsha Ternus and justices David Baker and Michael Streit [who] were voted off the bench following a campaign fueled by a 2009 decision that legalized same-sex marriage.

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

Ind. Gov't. - "Ind. chief justice: Courts won't act on boycott"

Bob Kasarda reports in the NWI Times:

VALPARAISO | Indiana Supreme Court Chief Justice Randall Shepard told a local Kiwanis group Wednesday the courts will not be interfering with the legislative stalemate created when the House Democrats fled the state more than 30 days ago.

The constitutional requirement that two-thirds of the representatives be present to take legislative action is not susceptible to a legal challenge, he said.

In response to a question raised by Valparaiso Redevelopment Commission Executive Director Stu Summers, Shepard said he also does not expect the courts to get involved if the stalled session results in lawmakers failing to redraw their voter boundaries.

If lawmakers are unable to fulfill their obligation to draw congressional maps, the work would be done by a redistricting commission made up of Republicans. Maps for state legislative districts then will be drawn in either a special legislative session or during the 2012 regular session.

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

Law - "Wave of anti-abortion bills advance in the states "

David Crary of the AP has a long story today that begins:

NEW YORK (AP) -- Dozens of bills are advancing through statehouses nationwide that would put an array of new obstacles - legal, financial and psychological - in the paths of women seeking abortions.

The tactics vary: mandatory sonograms and anti-abortion counseling, sweeping limits on insurance coverage, bans on abortions after 20 weeks of pregnancy. To abortion-rights activists, they add up to the biggest political threat since the Roe v. Wade decision of 1973 that legalized abortion nationwide.

The story covers many states, but doesn't mention Indiana's bills.

Yesterday Politico had a story by Sarah Kliff headed "South Dakota abortion law wakes up activists." There, the continuing efforts to outlaw all abortion have given rise to a backlash. A quote: "Frankly, voters are just tired of legislators who keep devising more and more ways to intrude upon the doctor-patient relationship." And in Wyoming, Republican women legislators reportedly rallied to vote down "an intrusive anti-abortion bill." A quote: “What this bill does is say that, as a woman, I’m not smart enough to know the decision I’m making, that somehow the state is required [to intervene] in this particular decision, where [the state] is required in no other medical decision.”

Posted by Marcia Oddi on Thursday, March 24, 2011
Posted to General Law Related

Ind. Gov't. - More on: Indiana House back in business next week?

Updating yesterday's entry, some stories today:

"'Chance meeting' might end legislative standoff: After speaking privately, Bosma and Bauer will consult with caucuses,"
reports Mary Beth Schneider of the Indy Star.

"Ind. House leaders meet over Democratic boycott," from the AP's Deanna Martin, here in Real Clear Politics.

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

Courts - "SCOTUS Justices debate rights of juveniles"

The oral argument yesterday before the SCOTUS in the case of J.D.B. v. North Carolina is the subject of a good story this morning by the USA TODAY Supreme Court reporter, Joan Biskupic. A sample:

During an hour of arguments that revealed the court's ideological split, Alito suggested that neither police, nor judges reviewing their actions, need consider a suspect's age.

Justice Elena Kagan differed sharply, asking, "Do we need either imaginative powers or empirical data to know that when a 13-year-old is brought into a room in his school, taken out of class, four people are there ... that that person is not going to feel free to take off and leave?"

"Well," Alito said a few beats later, "sympathetic cases make bad law."

The case testing constitutional protection against self-incrimination could affect myriad situations in which police question youths outside a station house or elsewhere before an arrest.

Lyle Denniston of SCOTUSblog has a long entry, posted yesterday, headed "The future of Miranda: From the edge of a rhetorical slippery slope, and then back from it, the Court explores what would happen to Miranda rights in the future if they were to be extended to minors facing police questioning." Excellent. Plus see this link to the SCOTUSblog case page.

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

Ind. Law - More on: Long-time Res Gestae editor in auto accident

Updating this ILB entry from March 18th, Susan Ferrer, ISBA Director of Communications and editor of Res Gestae, who was injured last Thursday evening in an auto accident downtown, is now home from the hospital and continuing her recovery. She told the ILB she appreciates everyone's good wishes, prayers, cards, emails, Facebook posts and beautiful flowers. She said will be out of the office, working from home as she can, for an undetermined amount of time.

Posted by Marcia Oddi on Thursday, March 24, 2011
Posted to Indiana Law

Wednesday, March 23, 2011

Ind. Gov't. - Indiana House back in business next week?

Ch. 13, WTHR.com, is reporting this evening that:

Democratic leader Patrick Bauer met with Bosma behind closed doors for about an hour Wednesday afternoon.

Bauer said he was returning to Illinois and that it was unlikely the Democrats would return to the House floor on Thursday because of the lateness of the meeting and the need for Bosma to discuss their meeting with Republican legislators.

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

Courts - "State courts' embattled administrator to retire"

From the San Francisco Chronicle, Bob Egelko reports today:

State court administrator William Vickrey, who has managed California's judicial system during a historic realignment but came under legislative attack for his handling of an expensive new computer system, said Tuesday he will retire in September. * * *

A series of laws [since his appointment in 1992 has] transformed the courts from a locally run to a state-run system, consolidating former Municipal and Superior Court offices into a single Superior Court in each county and transferring court buildings to state ownership. Chief Justice Ronald George, who served from 1996 until this January, engineered the changes, with Vickrey leading the central staff.

Many local judges criticized the consolidation and the growth of the Administrative Office of the Courts, which Vickery headed, while county courts struggled with state funding shortages and mandatory closures of one day a month from September 2009 to July 2010.

Last month, a state audit criticized management of a statewide court computer system championed by George and his successor as chief justice, Tani Cantil-Sakauye. The audit projected a price tag of as much as $1.9 billion, compared with $260 million when the project was unveiled in 2004.

For background see this ILB entry from March 13, 2011, headed "Judges Resist Plan to Unify Court system"." It includes a link to the summary of the California State Auditor's Feb. 8, 2011 report on the California Administrative Office of the Courts' statewide case management process.

And for lengthy background coverage, see this Feb. 22nd story from the Courthouse News Service. It begins:

SACRAMENTO (CN) - Trial judges throughout California hit back against power grabs by judicial bureaucrats through a bill introduced in the Assembly late Friday that would guarantee autonomy for head trial judges in running their courts.

Introduced by Assembly Majority Leader Charles Calderon (D-Montebello), the Trial Court Rights Act would amend the government code to ensure that courts are considered independent of the state's judicial bureaucracy, made up of the Judicial Council and its administrative arm, the Administrative Office of the Courts.

The bill delivers its message right at the outset when it says, "The Judicial Council does not govern the trial courts."

The proposed legislation follows on the heels of a harsh audit by the legislature, concluding that administrators understated the true price of a controversial IT system that is now predicted to cost roughly $3 billion and continues to drain money from trial court funds.

"The AOC is insisting on going forward with it while we're closing courtrooms," said Calderon in an interview.

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

Ind. Law - As a hypothetical, this could become a bar exam question!

6News posted this story at 3:45 pm, headed "Man Closes Off Popular Indianapolis Shortcut: 81-Year-Old Property Owner Barricades Road." It begins:

INDIANAPOLIS -- A popular shortcut on Indianapolis' north side is now a dead end, thanks to an 81-year-old man who owns the property and has decided he doesn't want anyone on it.

Metal posts have been installed on a road just north of Interstate 465, east of the intersection of Keystone Avenue and 96th Street.

John Tyne cut off access to the road, which many have used for decades to get around the congested area, sending a clear message that he doesn't want people on the road, 6News' Chance Walser reported.

The road that nearly everyone thought was owned by the city is owned by Tyne, giving him access to several acres that have been in his family for generations.

Tyne recently acquired the deed from his mother. Unhappy with I-465 construction creeping near his land, he decided to keep everyone out. * * *

Tom Wood Porsche Audi often used the road to get big trucks in and out of the dealership.

"It's always been open, and we've taken care of it," said John Moses, the dealership's general sales manager. "It's been paved. We pick up the garbage. We cut the trees. We do all the maintenance, and one day, we come out here and there's poles up blocking access."

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

Ind. Decisions - Court of Appeals issues 4 today (and 13 NFP)

For publication opinions today (4):

Donna Smith, et al. v. Emmanuel Temple Penecostal Churches, et al. - 16-page opinion affirms trial court in dispute over dismissal of a pastor. COA cites Cole v. Hart, 725 N.E.2d 145 (Ind. Ct. App. 2000), trans. denied. Quote:

As we observed in Cole, “[c]ivil courts are precluded from resolving disputes involving church affairs if resolution of the disputes cannot be made without extensive inquiry into religious law and polity.”
In Troy R. Smith v. State of Indiana , a 13-page opinion, Chief Judge Robb writes:
Troy R. Smith appeals the trial court's revocation of his probation for failure to pay child support weekly, a condition of his probation. On appeal, he raises one issue which we restate as two: whether the State satisfied its burden, if any, to prove 1) Smith's failure to pay was reckless, knowing, or intentional; or 2) his ability to pay. Concluding the State bears the burden to prove Smith recklessly, knowingly, or intentionally failed to pay his child support weekly, that proving such requires Smith's ability to pay, and that the State failed to satisfy its burden, we reverse.
In Andrew McWhorter v. State of Indiana, a 5-page opinion, Sr. Judge Barteau writes:
Petitioner-Appellant Andrew McWhorter appeals the denial of his petition for post-conviction relief. We affirm.

McWhorter raises one issue, which we restate as: whether the trial court erred by accepting his guilty plea to a charge of residential entry, a Class D felony. Ind. Code § 35-43-2-1.5 (1991).

In Shawn Green v. State of Indiana , a 7-page opinion, Judge Mathias writes:
Shawn Green (“Green”) was convicted of two counts of Class C felony forgery in Marion Superior Court. Green appeals his convictions and argues that the evidence is insufficient to support his convictions. Specifically, he argues that his act of electronically signing a credit card receipt cannot constitute forgery as a matter of law. Concluding that the State proved the elements of forgery beyond a reasonable doubt, we affirm. * * *

Without question, an individual who, with intent to defraud, signs a credit card sales receipt “in such a manner that it purports to have been made . . . by another person” commits forgery. See I.C. § 35-43-5-2. But Green urges us to conclude he is not guilty of forgery because he electronically signed a credit card sales receipt.

Unfortunately for Green, under Indiana law, electronic signatures have the same force and effect as written signatures. Indiana Code section 26-2-8-106 (Supp. 2008) * * *

For all of these reasons, we conclude that Green “made” a “written instrument” when he signed Kellie Dayoff's name in the electronic box on the electronic point of sale terminal. The sales transaction was not complete until Green electronically signed the credit card receipt. Furthermore, upon completion of the sales transaction, Speedway gave Green a paper copy of the receipt that included his forged signature. This evidence was sufficient to sustain Green's Class C felony forgery convictions.

NFP civil opinions today (6):

Ruby Hamilton v. Eddie Woods, Helen Billingsley, and Kathleen Henderson (NFP)

Linda (Fritts) Christopher v. Ronald Fritts (NFP)

Aaron Israel and Gary Robertson v. J. David Donahue, et al. (NFP)

Lalena D. Boller v. Scott W. Ricketts (NFP)

In the Matter of the Paternity of S.A.; G.L. v. T.A. (NFP)

Term. of Parent-Child Rel. of H.P.; M.G. and R.P. v. I.D.C.S. (NFP)

NFP criminal opinions today (7):

DeAngelo Banks v. State of Indiana (NFP)

Cortez Lee v. State of Indiana (NFP)

James A. Nelson v. State of Indiana (NFP)

Anthony Vanscyoc v. State of Indiana (NFP)

Jeffrey A. Graham v. State of Indiana (NFP)

James Phillips v. State of Indiana (NFP)

Jermarcus J. Starnes v. State of Indiana (NFP)

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

Ind. Law - Senate approved HJR 6

Although I watched the hearing this morning on HJR 6, a tweet by Nicki Kelly of the FWJG says it all:

GOP in Senate Judiciary Committee approve gay marriage ban 7-3, and refuse to compromise on civil union language. Bill now to full Senate.
One amendment was considered, and failed 7-3. It is not available online, although it was filed "days ago" according to the testimony of its author. Presumably it would have stricken the controversial second sentence, which reads:
A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

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

Ind. Gov't. - More on: "Indiana seeks order shielding Daniels from IBM suits"

Updating this ILB entry from March 21st, the Fort Wayne Journal Gazette has an editorial today headed "Defend the IBM deal" that begins:

Gov. Mitch Daniels had plenty to say five years ago when he signed a $1.16 billion contract with an IBM-led group to outsource portions of welfare operations. While condemning the former system as a monstrous bureaucracy rife with fraud and inefficiency, he promised savings of $500 million over the next decade, better service for “those who actually deserve” assistance and 1,000 new jobs created by IBM.

But now that the largest contract in state history has been canceled, resulting in a lawsuit and countersuit, the governor’s not talking. His legal staff has requested a protective order to keep Daniels and Earl Goode, his chief of staff, from providing depositions.

The governor should cooperate in the legal inquiry. If the concept of privatizing the state’s social services program was sound but its execution flawed, Daniels should be eager to make that point. He should be willing to defend any comments or correspondence he had concerning the deal.

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

Ind. Decisions - More on: A teaching moment: "Non-refundable" fees

Updating yesterday's entry, the ILB has received a second response from Ted A. Waggoner, Peterson Waggoner & Perkins, LLP, Rochester, who writes in response to the last reader's comment yesterday:

I have two ideas for how to solve – being in a two lawyer firm for 20+ years before expanding, I know the cash issues he describes.

1 – Open a law firm savings account. Put 50% of the big retainer in there, and hold until the case is completed. Then if there is another such case set an amount that ought to cover the possible returns to clients and leave it there. There are taxes on the $$ once, but once paid it will work. You do not have to remove all receipts from your general account. This is not a trust account, but is your general account in savings.

2 – Get a line of credit (or office credit card line) for the amount of the big retainer. Do not draw on it until you need it, but then if you do, write a check.

The funds are due back and the lawyer has to come up with a way to refund the portion that was not earned by failing to complete the representation.

At least that (plus more) is what I would tell someone who hires me for law firm management advice, or who calls the Legal Ethics Hotline.

Waggoner strongly recommends that practitioners who are not members join the ISBA and participate in the General Practitioner listserve. He also notes that the Legal Ethics Hotline panel is for all members of the bar, not just for ISBA members.

Posted by Marcia Oddi on Wednesday, March 23, 2011
Posted to A teaching moment

Ind. Gov't. - Senate Democrats seek greater transparency in Senate proceedings

Because of the Democrat walkout in the House, many Senate bills which have passed and gone to the House for consideration may not be acted upon in the House because of the walkout.

It has been reported that the Senate will try to amend the text of a number of these stranded Senate bills into the House bills that did pass the House before the walkout and are now in Senate Committee.

(See this March 18th ILB discussion of the Senate germaneness rule.)

Yes, all of this will be very confusing to follow, it is confusing even to describe. Today Senate Minority Leader Vi Simpson has issued a press release headed "Greater transparency sought in Senate proceedings." Some quotes:

State Senate committees will begin an unusual schedule of bill hearings on Wednesday. Senate Democrat Leader Vi Simpson (D-Ellettsville) says she is concerned schedule changes made by Senate Republicans will create a more complicated, even chaotic system that could limit the public's access to follow or advocate on measures before the General Assembly.

Under the changes for Senate committees, announced last week by Senate Republicans, legislators expect to see multiple measures pushed into one bill during committee hearings. Also, House Republicans are invited to attend and participate in Senate committee hearings with the opportunity to express their thoughts and opinions along with the Senate committee members.

Sen. Simpson said. "The Senate should not create more confusion and chaos in this process or make it more burdensome for constituents to stay engaged on important matters that affect them."

In a letter to the Senate President Pro Tem delivered Monday, Sen. Simpson asked that the bills to be offered as amendments be included in committee public postings, a courtesy that would provide 48 hours notice to the public and to other legislators. Procedural rules in the State Senate do not require any prior posting or notice of amendments offered in committee, a process that Sen. Simpson believes will put the public at a distinct disadvantage during these unusual proceedings.

Senate Republicans declined that request on Tuesday, noting that it will be up to committee chairs to decide whether any notice of the bills to be considered as amendments will be posted publicly before each hearing.

On Wednesday morning, the Senate Health and Provider Services Committee will consider combining ten different bills into a single bill. House Bill 1017, which now contains a plan allowing medication unused by incarcerated offenders to be returned to the pharmacy, could become the vehicle for nine other substantial measures on issues ranging from an increased co-pay for families in the First Steps Program for developmentally disabled children to changes in the Healthy Indiana Plan for adult low-cost health care insurance.

Sen. Simpson pointed out that in the case of the health committee, while the extensive amendments would complicate the process, at least the public had some notice of the measures that were going to be considered. Whether such prior notice will be available in other committees is unlikely. Schedules for upcoming Senate committees are available online.

See p. 2 of this hearing schedule, where HB 1017 (unused medication) is up for Senate Public Health Committee consideration today at 9 am, and the schedule states inclusion of "consideration of numerous amendments containing language from the following bills: SB 88, SB 218, SB 93, SB 581, SB 327, SB 223, SB 331, SB 366, SB 461." These bills already have passed the Senate once.

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

Ind. Gov't. - "Daniels: I'll veto amended prison bill Changes pushed by prosecutors make cost too high, governor says"

The ILB has had a long list of entries on SB 561, the Governor's sentencing reform bill, which passed the Senate, albeit with major amendment, and is awaiting House consideration.

This morning the Indianapolis Star has this long, front-page story, written by Heather Gillers. The story should be read in full. Here are some quotes:

The original proposal -- endorsed by Daniels and drafted by a commission of the state's top justice officials -- sought to lessen prison time for nonviolent drug offenders and bring Indiana's harsh sentencing laws into line with those of other states.

But after county prosecutors assailed it as soft on crime, senators gutted the bill and even lengthened sentences for some offenders.

"It's a shame, honestly, that what looked to be a consensus is unraveled because of one interest group, the prosecutors, and they do not speak for all prosecutors," Daniels said Tuesday. "The main point here was to incarcerate people in a smarter way and to save Indiana's taxpayers a lot of money.

"So I'm not going to sign something that heads in the opposite direction and costs taxpayers money beyond what would already be the case."

The sentencing reform measure, Senate Bill 561, started the session with plenty of momentum and influential support.

The commission worked all summer to draft it, drawing on a year of research by two national bipartisan think tanks. Daniels endorsed it in his State of the State speech as a way to save a billion dollars. Indiana Supreme Court Chief Justice Randall Shepard talked it up in his State of the Judiciary.

But that original pitch for what the governor dubbed "smarter incarceration" bears little resemblance to the get-tough bill passed out of the Senate late last month.

Professor Joel Schumm, of the Indiana University School of Law-Indianapolis, called the transformation a triumph of politics over policy. * * *

The DOC's prison construction projections based on the amended bill are disputed by the Indiana Prosecuting Attorneys Council, which pushed the changes to the proposal.

"I think (the revised bill) is a tremendous cost savings," said Steve Johnson, the council's executive director.

DOC officials acknowledged that reforms left in from the original bill would reduce Indiana's minimum- and medium-security inmate population by about 8,000 by 2045.

But, DOC Deputy Commissioner Randy Koester said, a provision tacked on at the urging of prosecutors would add about 15,227 prisoners to Indiana's maximum-security population by that date, requiring new prisons to be built. * * *

The extended sentences were the brainchild of small group of vocal prosecutors and the Prosecuting Attorneys Council, a professional group created by the state legislature that counts all county prosecutors as members. They convinced a Senate committee that adding prison time for the worst felons is a long-overdue change that must be part of any prison-reform package.

Senators then inserted into the bill a provision that serious violent felons must serve at least 85 percent of their sentences and could not earn a day off for each day of good behavior.

The Council of State Governments think tank said sentences for Indiana's worst criminals are already longer than in other states. Murderers serve more than 16 years on average here, compared with 14 in Michigan and 13 in Texas.

Other changes pushed by prosecutors stripped away reforms that would have lessened some extreme penalties that helped drive up Indiana's prison population 38 percent from 2000 to 2008 without any corresponding increase in crime.

The original bill reduced sentences for nonviolent drug offenders, but senators restored some of them. They also killed a provision shrinking the radius of designated "drug-free zones" from 1,000 to 200 feet.

"I thought the original version (of the bill) made a lot of sense," Schumm said. "I think the prosecutors' involvement shows that they have a lot of political clout. No legislators want to be seen as soft on crime."

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

Ind. Gov't. - "Senate hears budget testimony as Indiana House remains in standoff"

Some quotes from a story dated March 21st, by Lesley Stedman Weidenbener of the Louisville Courier Journal:

As Democrats in the Indiana House prepared to take their boycott of legislative business into a fifth week, the Senate took over the budget-writing process on Monday, launching a series of hearings on the state's next two-year spending plan.

It's the first step in an effort by the Senate Appropriations Committee to revive a budget that currently is mired in the month-long House standoff.

House Bill 1001 has been stuck on the House calendar in the amendment stage since Democrats walked out on Feb. 21, denying majority Republicans the quorum needed to take votes or move bills. They haven't returned since.

"We hope that the House will still be able to take up their calendar and be able to get us a finished bill," said Senate Appropriations Chairman Luke Kenley, R-Noblesville. "But in order for us to finish our work and do our constitutional duty (to pass a budget), we need to start moving in the Senate."
To do so, Kenley said the Senate would start with the budget plan the House Ways and Means Committee passed, even though it has never passed the House.

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

Ind. Courts - "Star seeks court ruling on anonymous posts"

Updating this ILB entry from March 6th, the Indianapolis Star reports today, in a brief item, that:

The Indianapolis Star has asked the Indiana Court of Appeals to decide, possibly for the first time, whether the state's journalism Shield Law and state and U.S. constitutions protect media outlets from being forced to disclose the identities of anonymous posters to their websites. * * *

"The order decides an issue of law heretofore not addressed by an Indiana appellate court," The Star said in a motion to delay Superior Court Judge S.K. Reid's order while the appeal is pending. * * *

The Star contends that the state's Shield Law, which protects media outlets from being forced to reveal sources of information they gather, applies in the case, as do constitutional rights to free speech.

The Star isn't a defendant in the lawsuit, so it's asking that the Millers be ordered to pay its legal fees in the appeal.

The ILB earlier was able to obtain a copy of Judge Reid's brief Order Compelling Non-Party Discovery against the Indianapolis Star. The ILB would also be pleased to post the appeal briefs. The case does not yet appeal on the appellate docket.

Posted by Marcia Oddi on Wednesday, March 23, 2011
Posted to Ind. Trial Ct. Decisions

Tuesday, March 22, 2011

Ind. Gov't. - "Judge orders Indiana to give IBM contract documents"

Carrie Ritchie reports early this evening on the Indianapolis Star website:

A Marion Superior Court judge has ordered Indiana to turn over thousands of documents to help sort out two lawsuits over the state’s cancellation of a welfare modernization contract with IBM.

In an order entered this afternoon, Judge David Dreyer said documents the state claimed were privileged are not and should be turned over to IBM for review. They will not be released publicly.

Attorneys for the state are considering an appeal, which would temporarily stop the suits from moving forward, and will notify the court of their decision within 10 days, said Peter Rusthoven [of Barnes & Thornburg], who’s representing the state.

The documents include state employees’ e-mails, including some belonging to Gov. Mitch Daniels. * * *

Dreyer, who reviewed more than 11,000 pages of documents privately before ruling, said in the order that he excluded “a relatively small number of individual e-mails or pages that are extraneous, personal or obviously unrelated communications.”

He also noted that he tried to be considerate of state employees’ privacy, and that he afforded the governor’s e-mails “particular scrutiny and due regard.” * * *

IBM also is trying to get a deposition from Daniels, and the state has requested a protective order to prevent the company from doing so.

See also this entry from March 21st, and this list of earlier ILB entries on the IBM contract.

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

Law - "Look! On The Web! The 'Comic Book Nerd Lawyers!'"

This is fun. NPR's All Things Considered had a story yesterday with this lead-in:

If you've ever wondered whether Robin — Batman's sidekick, that is — was the victim of child endangerment (maybe) or thought that some superheroes (especially mutants) might be discriminated, there's a blog for you.

And even if superheroes aren't your thing, it still could be both fun and educational.

It's Law and the Multiverse, and on All Things Considered today self-described "comic book nerd lawyers" James Daily and Ryan Davidson explain to host Melissa Block why they've decided to explore "the hypothetical legal ramifications of comic book tropes, characters, and powers."

Listen to the story here.

And visit the blog, Law and the Multiverse.

Posted by Marcia Oddi on Tuesday, March 22, 2011
Posted to General Law Related

Ind. Decisions - A teaching moment: "Non-refundable" fees [Updated three times now]

On Feb. 14, 2011, the ILB posted the Supreme Court's Feb. 11th disciplinary ruling: In the Matter of Heather McClure O'Farrell, a 12-page, 3-2 ruling concerning attorney fees, and noted that it "should be closely reviewed by all practicing attorneys."

Donald R. Lundberg, Barnes & Thornburg, who formerly was the Indiana Supreme Court Disciplinary Commission Executive Secretary, has published a four-page article, titled "Fun with refundability: when lawyers owe their clients money," in the March 2011 issue of Res Gestae. The ILB is pleased to be authorized to make the article available online. [Warning: because of the color, this is a large file - I'll try to remedy that.]

In addition, Kevin P. Mcgoff and James J. Bell have published an article headed "Money and Ethics: 'Non-Refundable' Fees," for the Indianapolis Bar Association. [ILB: Here, thanks to Mr. Mcgoff, is a copy of the March 16, 2011 article from the IBA.]

Fees and their handling are a difficult area. Here are some reader comments the ILB has received:

Did you happen to read Don Lundberg's article in the recent Res Gestae about flat fees? I am so frustrated with this whole thing. I used to put a client's flat fee into my business account and consider it my money. Well, that was until the Supreme Court told lawyers that we have to be prepared to "promptly" refund the client a portion of the fee if they decide to fire me or otherwise end the litigation. That's hard for someone who has a small number of clients and, thus, a small balance in my business account.

So I started putting flat fees into my trust account and billing against the fee as I did work on the case. That way, if the client fired me, I had invoices of all the work I had done, and I merely refunded them the remaining amount of the fee from the trust account.

Well, Lundberg's article now says that I can't do it that way either. I have no choice but to put the money into my business account, and then come up with a refund nearly immediately if the client requests one. That may not be a big deal for some larger firms, but for a small practitioner it is huge. Because I can't leave it in my business account until the representation is over (my cases often take years to complete); if I do, I have to pay taxes through my business on that revenue. But if I pay it to myself as income, then if the client demands a refund, I have to hope I have enough money in my business account to cover the refund.

And Lundberg's article goes even farther and says that I cannot put anywhere in my fee agreement that the fee is nonrefundable. I'm getting to the point where I'm going to have to draft my fee agreements to say only what the fee is and what I'll do for that fee. And nothing else. But I'm sure there's something wrong with that too.

Part of the frustration is that we can't ask the Disciplinary Commission for advice before we make a mistake. Instead, we have to guess what we think we should be doing, and hope we're doing it right.

So my law partner and I "corrected" our trust account by moving all of our flat fees to our business account. But yesterday we were presented with a dilemma when my partner was retained on a guardianship case. The client paid him a flat fee plus a filing fee for the action. The client paid with one check. Where to deposit the check? Technically the filing fee is supposed to go in our trust account, and the flat fee is supposed to go in our business account. But there's only one check to deposit.

I'm sure situations like this aren't going to draw the wrath of the Disciplinary Commission, but I think it highlights why this whole thing is so difficult.

[Updated at 1:43 pm] Don lundberg writes:
One part of your commenter's dilemma is addressed in the Disciplinary Commission's Trust Account Management handbook, available on-line. It might be nice to alert your readers to the fact that this very helpful resource is available to them. It is, if you will, a form of "advice" from the Commission that your commenter says is not available. Here is the language that addresses what to do with combined trust/non-trust funds (on page 7):
Receipt of Aggregated Non-Trust and Trust Funds: Funds paid to the lawyer by a client in a single check or credit card transaction some of which belong in trust and some of which do not belong in trust should be initially deposited in trust and a trust account check written to promptly disburse the non-trust monies. Initial deposit of such a check or credit card transaction into an operating account should be avoided as it places those funds at risk, even if for a brief period of time.
As to the other concern about the refundability/non-refundability of fixed fees, my article says this:
One might thereby think of a flat fee as non-refundable—and it is, in the sense that the lawyer need not generally refund any money at the conclusion of the representation merely because the matter went more smoothly than anticipated. But it is not nonrefundable in all events. If the attorney-client relationship ends by action of either lawyer or client before the contemplated representation is complete, the lawyer will generally owe the client some form of refund based on equitable considerations underlying the doctrines of quantum meruit and unjust enrichment.
As wordsmiths, it should not be too difficult for lawyers' to draft their fee agreements for fixed fee representations to state, in substance, that the fee is non-refundable assuming the representation as contemplated is completed, but in the event the relationship is terminated before the contemplated representation is complete, the lawyer may equitably owe the client a refund of some amount that cannot be determined in advance.
[Updated at 2:20 pm] Just received this note from Ted A. Waggoner, Peterson Waggoner & Perkins, LLP, Rochester.

One thing you might add to the dialogue on fees is that while the Disciplinary Commission does not provide guidance on the RPC, the ISBA Legal Ethics Telephone Hotline panel will. It is comprised of experienced committee members who will work through legal issues with the members of the Bar. The Disciplinary Commission will give you the number of the lawyer assigned to your district as will the ISBA at their toll-free number 800-266-2581.

Also, while Don Lundberg is comfortable with the concept of a non-refundable retainer, I agree with McGoff that the words should not be used or even hinted at. It has not been an approved phrase in any opinion over the past 8 years that discussed it. The court has not declared the phrase forbidden, but has not provided an example of the proper use of that phrase. Life is too short, leave the concept behind in your fee agreements and in your approach to the fees paid to the firm, small or large. It does not matter how good a wordsmith you imagine yourself to be.

[Updated at 2:56 pm] The original reader writes again:

I appreciate the responses on the flat-fee case. But I noticed that neither responded to my fundamental concern with the flat fee setup as it now stands: it is hard on solo or small firm practitioners who handle almost exclusively flat-fee cases to operate when they know that clients can terminate their representation for any reason, or no reason at all, and be entitled to a refund.

I understand that not all of the money must be refunded simply because the client terminates representation. My problem is simply with the idea that the flat fee is earned the minute it is paid, so I can't put the money into my trust account, but the money isn't really income until I complete my work on the case. It is either earned upon payment or it isn't.

I hope more people provide their views. I would be interested in hearing what other people think about all this.

Posted by Marcia Oddi on Tuesday, March 22, 2011
Posted to A teaching moment | Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In Nicholas Suding v. State of Indiana , a 14-page opinion, Judge May writes:

Nicholas Suding appeals his conviction of and sentence for Class A felony conspiracy to commit murder. * * *

Suding was not prejudiced by the State’s amendment of his charges past the omnibus date, and the prosecutor’s comments regarding “an allegation involving a kid” did not put Suding in grave peril. The comments made by Suding’s wife regarding an alleged incident of abuse did not warrant a mistrial because the court admonished the jury to disregard her statements. Finally, the evidence was sufficient to support Suding’s conviction, and the trial court did not abuse its discretion in sentencing him. Accordingly, we affirm.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Clyde Piggie v. State of Indiana (NFP)

John David Jenkins v. State of Indiana (NFP)

William A. Lawhorn v. State of Indiana (NFP)

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

Law - "LegiStorm Posts Online Database of Congressional Staff Salaries"

Check here.

Posted by Marcia Oddi on Tuesday, March 22, 2011
Posted to General Law Related

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

In U.S. v. Long (SD Ind., McKinney), a 15-page opinion, Judge Kanne writes:

Robert Long and Jason Edwards were corrupt narcotics detectives who, over the course of several months, capitalized on their police authority to steal marijuana and drug money from Indianapolisarea criminals. Unbeknownst to the two, some of their thefts were coordinated stings by law enforcement. Based on wiretap recordings and evidence from the stings, Long and Edwards were arrested and convicted of possession of marijuana, attempted possession, and narcotics conspiracy. Edwards now attacks his conviction, claiming the district court erred when it denied his motion to dismiss evidence related to the wiretap order on his phone, while Long raises a laundry list of complaints related to his sentence. We find none of these contentions meritorious, and accordingly affirm Edwards’s conviction and Long’s sentence.

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

Ind. Courts - "Starke County Prosecutor to Promote Bench Trials to Save County Money"

From K99.3 WKVI FM yesterday, this story:

Starke County Prosecutor, Nicholas Bourff, is in his third month on the job and has already made a suggestion to help speed up C and D Felony proceedings.

“One of the proposals I’ve made is to try, even if it’s with the C and D Felonies, to see if a case is going ahead to trial, and we know it will, to see if we could get a bench trial set, which just involves the Judge, instead of a jury trial,” said Bourff. “The one major drawback there is that if a defendant wants a jury trial, he or she has that right. If the defendant agrees to a bench trial, then it would save thousands of dollars and it would shave off quite a bit of time as far as eliminating the need for jury selection. In my experience as a defense attorney, the majority of my clients would not have had a problem with going to a bench trial.”

ILB: A look at the Trial Court statistics for 2009 shows Starke County had 16 jury trials, all in the Circuit Court.

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

Ind. Gov't. - More on the Wisconsin walkout issues

"Attorney General appeals restraining order on labor law" is the heading to a very long March 21st story by Jason Stein and Lee Bergquist of the Milwaukee Journal Sentinel. Here is the part about the AG's arguments:

In its appeal Monday, the state made several main arguments. First, the state argued that the court has no jurisdiction over GOP legislative leaders being sued or over La Follette because they all enjoy legal immunity.

The state constitution gives legislators immunity from lawsuits during the legislative session. La Follette, the state said, can't be the subject of a legal action because he wasn't involved in the committee vote in question.

Second, the state argued that the court can't block a bill that hasn't yet been published into law because that amounts to interfering with the Legislature in its area of responsibility of passing laws. The appeal cited a 1943 Supreme Court decision that it said forbids courts to block a legislative measure from being published.

The order from the appeals court directed Ozanne to respond to this specific argument from the state by Tuesday.

Last, the state argues that the courts can't block or strike down a law passed by the Legislature purely on the basis of lawmakers failing to follow legislative rules or the open meetings law. Citing a 1983 state Supreme Court ruling, the appeal said that courts can strike down laws only if lawmakers failed to follow the state constitution.

Howard Schweber, a professor of political science and legal studies at the University of Wisconsin-Madison, agreed that laws can't be struck down because the Legislature didn't follow its rules in passing them. But Schweber noted that Sumi hadn't struck down the law, only restrained a state official from publishing it.

"They're trying to make this an argument about the authority to strike down a law. But that's not what's going on here," he said.

What would happen in Indiana if the issue of failing to follow the Open Door law were raised? Is is hard to say. Yes, our law does apply to the General Assembly, by virtue of IC 5-14-1.5-2(a)(1). But our Supreme Court has held many times that it will not inquire into the internal legislative procedures, but will look only at the face of the law passed.

A second interesting J-S story yesterday, this one by Meg Jones, is headed "Supreme Court debate focuses on rancor among current justices: Collective bargaining battle looms over race for Wisconsin's high court."

[More] See also this March 23rd WSJ story, headed "Wisconsin's Battle Supreme: Liberals in the state are trying to make the April election for a state supreme court justice a referendum on Governor Walker."

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

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

Updating this ILB entry from Feb. 22, 2011 that cited a WSJ story, the Indianapolis Star today has a lengthy story by Carrie Ritchie, headed "Potential jurors are being scrutinized online: Lawyers are increasingly combing social networking sites to find valuable clues to potential panelists' leanings." A quote:

Picking the "right" jury is among the most critical aspects of a trial. So much so that in some cases, attorneys spend tens of thousands of dollars to hire consultants who research jurors' backgrounds and advise attorneys on what to look for.

More typically, attorneys rely on county-provided questionnaires that ask prospective jurors basic questions about employment, criminal history and their families. Attorneys also can question prospective jurors during jury selection.

Based on that information, attorneys may disqualify some jurors. Judges also may disqualify them.

Still, a questionnaire and a handful of face-to-face questions don't mean attorneys will uncover every piece of potentially pertinent information about someone.

Often, attorneys don't learn the names of potential jurors until hours before selection. But sometimes, they are given a list a few days before a trial. That's when social media and basic Internet searches can be particularly useful. * * *

Facebook, MySpace, Google, blogs, Twitter -- all are a potential gold mine. * * *

But is all this snooping into the lives of potential jurors ethical?

Yes, as long as attorneys are using information that's open to the public, said Novella Nedeff, clinical associate professor of law at Indiana University School of Law-Indianapolis.

However, she said, if an attorney were to try to "friend" someone on Facebook to get access to private information, that might violate ethical rules.

The Marion County prosecutor's office is examining the various ethical issues, said Chief Deputy David Rimstidt. He said some deputy prosecutors already may be researching potential jurors online, but for now, it's not something the office encourages.

"If it's considered to be ethical," Rimstidt said, "I assume that we would give our folks the green light to do this kind of inquiry because we need to find as much information as we can about our potential jurors."

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

Ind. Decisions - "Woman suing Carnival: Ship sailed too fast, made me sick"

The March 21, 2011 COA decision in Carnival Cruise Lines, Inc. v. Doris Beard (NFP) is the subject of a story today by Dan Carden of the NWI Times that begins:

INDIANAPOLIS | A Gary woman will have to go to Florida to seek justice against a cruise ship operator she claims made her sick, the Indiana Court of Appeals ruled Monday.

Doris Beard, of Gary, sued Carnival Cruise Lines Inc. in Lake County Small Claims Court seeking damages because she claimed the speed of the ship made her, as well as other passengers and crew, ill.

Carnival asked the court to dismiss the case because its cruise contract with Beard required any lawsuit stemming from travel on the ship be heard only by a Miami, Fla., court.

Gene Sloan reports in USA TODAY's Travel section under the headline "Woman suing Carnival: Ship sailed too fast, made me sick."

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

Ind. Decisions - SCOTUS reverses 7th Circuit retaliations ruling, 6-2

The case is Kasten v. Saint-Gobain Performance Plastics. See early AP story here. Here is the opinion.

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

Courts - "Supreme Court Decides -- Narrowly -- Against Hearing Enviro Search Case"

The NY Times, March 21st, had a report by Lawrence Hurley of Greenwire about an important environmental issue. From the story:

The Supreme Court declined today to take up the question of whether an environmental inspection of a private property can be viewed as an unconstitutional search and seizure.

It was a close call, with four of the nine justices expressing considerable interest in the issue. Only four votes are needed for the court to hear a case, so they had the power to have forced that outcome if they had wanted to.

Michelle and Robert Huber, a suburban couple in New Jersey, had made the argument that their Fourth Amendment rights were violated after a state official took soil samples without permission.

The state maintained it did not need a warrant to search the property because of authority it was given by the New Jersey Freshwater Wetlands Protection Act.

The inspector had been called to the property in 2002 after complaints from neighbors that the Hubers were disturbing wetlands to the rear of the site.

More from the story:
In deciding not to hear the case, Justice Samuel Alito took the step of issuing a written opinion, which three of his conservative colleagues, Chief Justice John Roberts, Antonin Scalia and Clarence Thomas, signed onto. * * *

Alito wrote that under Supreme Court precedent, there is a limited exception to Fourth Amendment protections when it comes to the government's ability to inspect regulated businesses.

He and his colleagues appeared concerned that the New Jersey court applied that exception to a search of private property

Alito wrote that the Supreme Court has never said "that a state, by imposing heavy regulations on the use of privately owned property, may escape the Fourth Amendment's warrant requirement."

The opinion is sure to alert lawyers keen on asserting the rights of private property owners to look out for similar cases from a state high court or federal appeals court that could attract the court's attention.

The story includes this link to Alito's 2-page opinion.

Posted by Marcia Oddi on Tuesday, March 22, 2011
Posted to Courts in general | Environment

Law - "This week in law" worth a listen

"This Week in Law," an hour-long (or more) weekly program hosted by attorney Denise Howell, is a show the ILB tries not to miss. It deals with current technology, and includes court cases and tech used by legal advisers, patents, copyrights, and more. The show is archived, so you can listen to all 103 shows (so far). Here is 103.

One of the topics on #103 was the website Damn You, Autocorrect!.

The site was also the subject of an NPR story this morning. Here is how it begins:

As the curator of the website damnyouautocorrect.com, Jillian Madison receives hundreds of autocorrected text message a day. Smartphone users know that the autocorrect feature frequently changes whatever innocent message you wanted to send to your mother — or co-worker — into something wildly embarrassing or just plain weird.

Among the more frequent submissions Madison receives to her site: "haha" changes into "Shabaka," who was actually an Egyptian pharaoh; "hell" morphs into "he'll"; "pick me up" turns into "oil me up." And it's easy to see how the autocorrect of "kids" into "LSD" could cause a bit of confusion and concern.

"If you say, you know, 'I'm going to run and pick up the kids,' it often turns into, 'I'm going to run and pick up the LSD. I'll be home in a little while,' " Madison tells Renee Montagne on Morning Edition.

But back to This Week in Law. Their discussion this week centered on the fact that Damn You, Autocorrect! is planning to compile their entries into a book, and the copyright issues that might be involved.

Posted by Marcia Oddi on Tuesday, March 22, 2011
Posted to General Law Related

Ind. Gov't. - "Go Online, Not Downtown, to Fight a Parking Ticket" (in NYC)

Javier C. Hernandez has the story in today's NY Times. It begins:

For years, New Yorkers have hurled obscenities, or simply given up, at the sight of a dreaded orange slip on their windshield, knowing that anyone brave enough to challenge a parking ticket would face interminable lines, stuffy hearing rooms and subpar snacks.

But now distressed drivers will be able to fight City Hall without having to take off their pajamas.

City officials on Monday unveiled an online alternative that allows residents to submit written rebuttals and upload supporting materials, like snapshots of where a missing traffic sign should be, to make their case.

Interestingly, the story reports that the online program cost NYC $50,000 to develop. Earlier this month, the Indy Star reported that Indy was developing an app to report potholes. The ILB noted that the city has "spent $45,000 so far and has been testing for several months."

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

Ind. Gov't. - "Wisconsin redux: Indiana Democrats flee state in protest"

Mark Guarino, reporting in the Christian Science Monitor, gives a lengthy overview of the Indiana impasse. The subhead tells the story: "In Indiana, Democratic state legislators are balking at the Republicans' entire agenda – not just a single bill, as was the case in Wisconsin. That has made compromise difficult."

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

Monday, March 21, 2011

Ind. Decisions - "Prosecutors in northern Indiana may have unconstitutionally kept two black women off the jury in a murder trial, the 7th Circuit ruled"

The 7th Circuit March 9th decision in U.S. v. Styles Taylor and Keon Thomas, about which the ILB posted a long summary here, is the subject of a story today by Joe Celentino of the Courthouse News Service.

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

Ind. Gov't. - "Micky Maurer says a mouthful "

You gotta read it!

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

Ind. Law - What is happening on immigration in other states?

"Arizona, Bowing to Business, Softens Stand on Immigration," is the headline to this March 18th NY Times story by Richard A. Oppel. On March 19th the LA Times had this story by Nicholas Riccardi, headed "Utah bucks conservative trend on illegal immigration: A state effort to offer legal residency to many illegal immigrants is driven in part by the influence of the Mormon Church."

Posted by Marcia Oddi on Monday, March 21, 2011
Posted to Indiana Law

Ind. Gov't. - Complete budget hearing agenda posted

The Indiana Senate Democrats have posted this week's schedule for the Senate Appropriations Committee, which will begin hearings on the 2012-2013 state budget this week. In fact, this afternoon at 4 pm. The hearings will be live online.

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

Ind. Gov't. - Milwaukee Journal Sentinel sees readship rise as a result of the Wisconsin legislative walkout

So writes J-S editor and senior vice president Marttin Kaiser in a Sunday column titled "Behind the Headlines." It begins:

Six weeks ago today the people of Wisconsin could not have been more united. The Green Bay Packers had won their 13th National Football League Championship and their fourth Super Bowl. It seemed there was a smile on everyone's face. The nation was focused on Wisconsin.

Less than two weeks later, the battle between the governor and the state's public unions was in full force. Very quickly, the people of Wisconsin had become more divided than arguably at any time in the state's history. The nation was again focused on Wisconsin - but in a much different light.

In my 14 years as editor of the Journal Sentinel, there has been nothing close to the reaction to this ongoing story. The readership to JSOnline has been record-breaking. In February 2010, JSOnline.com had about 31.4 million page views; this past February, the number of page views through Web and mobile devices had leapt to about 69 million. Newsstand sales of the Journal Sentinel are up throughout the state - especially in the Madison area. We normally receive 300 to 400 letters to the editor each week; lately, the number has exceeded 1,000.

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

Ind. Gov't - "Proceed with caution on maps"

That is the heading to today's lead editorial in the Indianapolis Star. It concludes:

Our quarrel would be with any process that delayed map-drawing till after all public input. The reverse should be the case; drafts should be available for citizen review well before votes are taken.

Gerrymandering, it must be pointed out, does not put only the majority party's interests above the public's. Most incumbents on the other side are given insulation as well, meaning few contested elections and minimal pressure on legislators to heed voters rather than lobbyists and campaign donors.

Derailing the gravy train is a tall order, one that some states have answered by creating nonpartisan redistricting commissions. The General Assembly should do likewise, for the next 10-year cycle. In the meantime, it must call a truce on the most divisive front of its partisan war. It is obvious the cool-down won't happen unless the people keep the heat on.

Also today:

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

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In Darryl Harris v. United Water Services, Inc. , a 17-page opinion, Judge Crone writes:

Darryl Harris (“Harris”) was employed by United Water Services, Inc. (“United Water”), a waste water treatment plant. During the time that he worked for United Water, Harris developed a bacterial infection, acid reflux, an ulcer, and gastric cancer. Harris filed a worker's compensation claim, alleging that his illnesses were caused by exposure to bacteria while working for United Water. United Water filed a motion to dismiss, arguing that his symptoms all stemmed from a particular incident when Harris was splashed in the face by waste water and that his claim had not been filed within two years of that incident. Harris argued that his medical condition was either an occupational disease or a repetitive injury, which would alter the starting date for statute of limitations analysis. A single hearing member of the Worker's Compensation Board (“the Board”) found that Harris had admitted that his condition stemmed from a single incident and granted the motion to dismiss. The full Board affirmed and adopted the single hearing member's decision. We conclude that Harris's deposition testimony does not support the Board's finding that he admitted that his condition stemmed from a single incident and that the Board applied the wrong burden of proof. Therefore, we reverse and remand for further proceedings consistent with this opinion. * * *

In this case, the statute of limitations issue is closely related to the issue of causation. If the case proceeds to a hearing on the merits, Harris will of course bear the burden of proof on the elements of his claim. To have the case dismissed without reaching the merits of his claim, United Water has to prove its alleged grounds for dismissal. Instead, it appears that the Board expected Harris to come forward with proof of causation in order to survive United Water's motion to dismiss. Given the speculative nature of Harris's lay testimony and the lack of expert medical opinion supporting either party's theory of the case, we cannot say
with certainty that the Board would have granted the motion to dismiss had it not erroneously found that Harris conceded a crucial point and held him to an erroneous standard. Therefore, we reverse the Board's order and remand for the Board to reconsider the motion to dismiss applying the correct burden of proof.

In Larry Bowyer v. Indiana Dept. of Natural Resources, a 36-page opinion, Judge Brown writes:
Larry Bowyer d/b/a Lakes Limited Liability Corp. (“Bowyer”) appeals the trial court's grant of a permanent injunction and damages in favor of the Indiana Department of Natural Resources (the “DNR”). Bowyer raises four issues, which we consolidate, revise, and restate as whether the trial court's Amended Findings of Fact, Conclusions of Law and Judgment granting the DNR's complaint for a permanent mandatory injunction and damages was clearly erroneous. We affirm.

This case was initiated when the DNR filed its complaint on January 13, 2000 and has produced three published opinions as well as one opinion on rehearing from this court. On this score, both at the trial level at a hearing on November 13, 2008, as well as in this instant appeal, Bowyer has either attempted to relitigate issues which have already been decided, or at least to narrow the impact of the previous decisions, with the hope that we might read this court's previous opinions in a light more sympathetic to Bowyer's interests. Moreover, Bowyer states in his brief that he “has fought hard but he has fought fair, and he only asks that this court treat him fairly and give this case one more honest review.” However, as will be thoroughly examined below, there are points in Bowyer's briefs where he has mischaracterized both the record and the applicable law.

NFP civil opinions today (2):

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

Carnival Cruise Lines, Inc. v. Doris Beard (NFP)

NFP criminal opinions today (9):

Stephen B. Reeves v. State of Indiana (NFP)

Nicole Cooper v. State of Indiana (NFP)

Jeremy Knoy v. State of Indiana (NFP)

Christopher Rondeau v. State of Indiana (NFP)

Bruce E. Wilson v. State of Indiana (NFP)

Shawn Hattery v. State of Indiana (NFP)

Terry Davis v. State of Indiana (NFP)

Mauricio Carvajal v. State of Indiana (NFP)

Evan Sapp v. State of Indiana (NFP)

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

Ind. Decisions - "Former Clinton County auditor prevails on appeal"

The COA decision March 18th in the case of Clinton County, et al. v. Jacqueline R. Clements, et al. (ILB summary here) was the subject of a March 19th story by Amanda Hamon in the Lafayette Journal Courier. A quote:

In a unanimous decision, the appeals panel upheld a 2010 Montgomery Circuit Court decision vindicating Jacque Clements in a lawsuit the county filed against her in 2009.

The civil suit had accused Clements, auditor from 2004 until 2008, of fraud and negligence involving the county's brief contract with a tax software company.

Additionally, the appeals court ruled that Clinton County must reimburse Clements' attorney fees -- an amount she said is between $50,000 and $60,000.

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

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

Here is the Clerk's transfer list for the week ending March 18, 2011. It is two pages (and 24 cases) long.

One transfer was granted for the week ending March 18:

In a second case, Indiana Dept. of State Revenue v. Estate of Katherine Boehle, (ILB summary here) reviewing the July 22, 2010 opinion of Judge Fisher of the Tax Court concerning a special needs/disability trust, transfer was denied based on the following: "Shepard, C.J. and David, J., vote to grant Transfer. Dickson and Rucker, JJ., vote to deny Transfer. Sullivan, J., is not participating."


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, March 21, 2011
Posted to Indiana Transfer Lists

Ind. Gov't. - "Gay marriage ban needs to be put on back burner"

Mark Kiesing's column in the NWI Times today begins:

Watching Indiana legislators debate gay marriage is like watching Nero fiddle while Rome burns down around him.

There are just more important things to consider at a time when half the General Assembly is crippled by a walkout and the nation remains in an economic crisis.

The state Senate Judiciary Committee will vote next week whether to recommend whether the Indiana Constitution should be altered to ban same-sex marriages.

Bear in mind that such unions already are against the law in Indiana.

But the die-hard social conservatives apparently fear that someday, the majority of the state might decide to allow those unions. Hard-wiring the ban into the constitution would make that reversal harder to do.

Our representatives (small "r") need to come to the realization we did not put them there to legislate private morality and come to grips with the fact that this is contributing to Indiana's already alarming brain drain.

In fact, some of Indiana's largest corporations have testified against this, saying it is going to make it harder to recruit good employees.

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

Ind. Law - Fort Wayne looks to update its tattoo ordinance

The story in the FWJG begins:

The Phunk-n-Ink Tattoo Convention takes place Friday, Saturday and Sunday at Grand Wayne Center. It is the third year for the unusual event, which includes sideshow and burlesque performers, music, tattoo artists and vendors. The convention is expected to draw 3,000 people.

It has also drawn the attention of the Fort Wayne-Allen County Board of Health. The convention is one reason health board officials decided the county’s tattoo ordinance needs revamping. The ordinance doesn’t address events like Phunk-n-Ink, and it hasn’t been updated in a decade, said Mindy Waldron, county health department administrator.

The board will meet Monday to discuss changes to the local tattoo ordinance.

Waldron said the health department will take its time in revising the ordinance and as a best-case scenario would have an updated draft ordinance ready for a vote by the board of health in September.

But the health department has already heavily researched other tattoo ordinances around the country and talked extensively with local tattoo artists to get their ideas on what should be in the ordinance.

“We have some proprietors here in the city that are very proactive as far as health and safety and want it to be regulated like a true profession,” said John Silcox, health department spokesman.

Posted by Marcia Oddi on Monday, March 21, 2011
Posted to Indiana Law

Ind. Gov't. - "Approach recall with skepticism"

The Fort Wayne Journal Gazette's Sunday, March 20th editorial on the wisdom of changing the law (or Constitution) to allow recall of state government officials is worth reading.

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

Ind. Law - "Speeding tickets: What you’ve always wanted to know "

Gitte Laasby, the great Gary Post-Tribune environmental reporter who departed for the Milwaukee Journal Sentinel on March 17th, to be a multimedia and investigative police reporter, has what looks to be a final story in the Sunday Gary paper, and it looks like she is gearing up for her new beat. It is a pretty amazing story for Gary drivers. It starts:

You may have wondered: How does a police officer decide whether to write me a speeding ticket? Does it matter which officer pulls me over? Are there any the speed traps around here? What determines whether I get a ticket? And do pretty girls showing cleavage really get a break?

The Post-Tribune analyzed a year’s worth of traffic tickets and warnings from the Lake County Sheriff’s Department and talked to several patrol officers and found out some answers.

Did you know, for instance, that the officer who pulls you over can make the difference between a 10 percent chance of getting a speeding ticket and 90 percent chance?

Or that Lake County’s patrol officers issued nearly one-fifth of their speeding tickets in a single block over a period of a year?

It lists the number of tickets issued by each officer, by type of ticket. It gives the ticket-to-warning ratios. And more!

Posted by Marcia Oddi on Monday, March 21, 2011
Posted to Indiana Law

Law - Interesting legal issues in Hawaii legislative proposal

"Bill holds writers liable for trespass: Lawmakers blame injuries on guidebooks when people are lured onto private property," is the headline to a story in the Honolulu Star Advertiser by Derrick DePledge.

Posted by Marcia Oddi on Monday, March 21, 2011
Posted to General Law Related

Environment - "Catfish regs face debate in Indiana"

From Phil Potter's column in the Sunday Evansville Courier & Press, this sample:

Recent conservation emphasis has encouraged catching and releasing all big fish, knowing these are usually the best breeding stock. Multi-state debates now center on what inland fish species should have maximum protective size limits and minimum size limits for keeping.

Catfish protection will be discussed during two Indiana Department of Natural Resources public meetings. The IDNR wants to install maximum length possession limits on channel, blue and flathead catfish and to limit both sport and commercial anglers to one big catfish of each per day.

The column concludes: "You may voice your opinions at the public meetings at 6 p.m. March 21 at Vincennes University's Shireliff Theater, or at 1:30 p.m. March 22 in Room N501 at the Government Center, 100 N. Senate Ave., Indianapolis."

Posted by Marcia Oddi on Monday, March 21, 2011
Posted to Environment

Ind. Gov't. - "Indiana seeks order shielding Daniels from IBM suits"

That was the headline of a WTHR 13 story from March 18th. The Indianapolis Star story from the same day, by Carie Richie, was headed "State, IBM disagree on need for governor to weigh in on lawsuit." Some quotes:

The state's legal team requested a protective order Friday that would bar Daniels and his chief of staff, Earl Goode, from providing "unnecessary and burdensome depositions."

But IBM's lead attorney argues that Daniels was a key player in the project and has a duty to share information, just like any other citizen involved in a civil complaint.

"Governor Daniels talks all the time about openness and transparency," Chicago-based attorney Steven McCormick, who's representing IBM, said after a hearing Friday afternoon. "Why, after this was his personal project, would he shy away from coming and being heard on the record? We just don't understand that." * * *

Though IBM contends Daniels was heavily involved in the project and could provide details that others couldn't, the state's attorneys say it's common practice for high-ranking government officials to stay out of lawsuits unless they pertain to personal misconduct.

"The basic concept in all these types of protections is . . . the state's chief executive has other things to do, and if you start opening the door (for depositions), then everybody will want to take his deposition, and courts have just uniformly resisted this," said Peter Rusthoven, a Barnes and Thornburg attorney representing the state.

The state also has offered up to 50 other witnesses who were "most intimately involved in decisions" regarding the contract, according to court documents.

McCormick said those witnesses cannot accurately speak for the governor.

IBM also is seeking thousands of emails and documents that state officials, including Daniels, penned about the contract.

A Marion Superior Court judge is reviewing some of those documents and is expected to rule next week on which ones the state must turn over. However, the state could appeal his decision, which would prevent the lawsuits from moving forward until that issue is resolved.

Regardless of the outcome of the document dispute, IBM wants Daniels' deposition, sooner rather than later.

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

Ind. Courts - "Yorktown court race centers on 'lay judge' debate"

Updating this ILB entry from Feb. 3rd, Nick Werner reported yesterday in the Muncie Star-Press, in a long story that began:

YORKTOWN -- Two Indiana Senate bills that would have required city and town court judges to be attorneys have died in committee.

But with an election coming up, that doesn't mean the issue is dead, at least not in Yorktown.

Voters in the Republican primary there will choose between four candidates. Two -- Phil Gregg and Jennie Scott -- are attorneys, and two -- Courtland Moores and Bridge Pegeen Flanagan -- are not.

The only Democrat candidate, Jeffrey Gant, is not an attorney.

While Indiana requires judges in county court systems to be attorneys, no such requirement exists under state law for city and town judges. Some cities and towns have established their own laws requiring judges to be attorneys, but the majority haven't.

More from the story:
Two Indiana senators this year proposed similar bills requiring all city and town judges to be attorneys. The bills had support from the Indiana Judicial Conference's Strategic Planning Committee, which includes Delaware Circuit Court 1 Judge Marianne Vorhees.

Both bills, however, died in committee.

Sen. Doug Eckerty, R-Yorktown, worried such a mandate would increase operating costs for town courts as they would have to pay a salary high enough to entice an attorney.

Town judge positions locally pay around $15,000 a year. Under these wages, some attorneys might actually lose money by becoming a town judge because they would have to give up more profitable criminal defense work to avoid any conflicts of interest in dealing with prosecutors.

Posted by Marcia Oddi on Monday, March 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?

But first, a new quarter starts April 1st. Please think about becoming an ILB supporter!

From Sunday, March 20, 2011:

From Saturday, March 19, 2011:

Posted by Marcia Oddi on Monday, March 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 3/21/11):

Next week's oral arguments before the Supreme Court (week of 3/28/11):

Wednesday, March 30th

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 3/21/11):

Tuesday, March 22nd

Thursday, March 24th

Friday, March 25th

Next week's oral arguments before the Court of Appeals (week of 3/28/11):

Monday, March 28th

Tuesday, March 29th

Wednesday, March 30th

Thursday, March 31st

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, March 21, 2011
Posted to Upcoming Oral Arguments

Saturday, March 19, 2011

Ind. Gov't. - "Coal-gasification venture's investors get a setback in Illinois"

Updating earlier ILB entries re the proposed Rockport coal gasification plant, Ted Evanoff of the Indianapolis Star reports today that:

The investors who promise natural gas made from coal will cut heating bills for 1 million Indiana homes were just handed a decisive setback on a similar project in Chicago.

Illinois Gov. Pat Quinn raised serious questions about any potential cost savings this week by vetoing a bill for two coal-gasification plants planned by two different investors in his state. [ILB: Here is the March 15th Chicago Tribune story]

Quinn said the natural gas made from coal in the proposed plants would never deliver the savings promised to homes and businesses because it would cost more than conventional gas coming out of wells.

In spite of the veto, Indiana Gov. Mitch Daniels said his state's terms with investor Leucadia National Corp. offer Hoosiers a better deal and should move forward.

More from the lengthy story:
Daniels said the Illinois veto hasn't changed his stance in favor of the Rockport project.

"These are two completely different situations," Daniels said in an email.

"We have a deal with protections and guarantees, and they have no deal at all. Their cost of gas is far higher than ours for at least three reasons: production costs, financing costs and required CCS (carbon handling). Finally, we have a pro-jobs, pro-homegrown energy policy here, and they apparently don't. We don't find much to imitate in Illinois these days."

Daniels signed legislation the General Assembly passed in 2008 for a coal-gasification plant. The matter is now before the Indiana Utility Regulatory Commission. The agency has scheduled a public hearing May 2. A decision is expected this summer.

A major point the IURC will consider is whether the Rockport project can guarantee savings for Indiana consumers.

Here is the interesting ending to today's story:
At both the Chicago and Rockport plants, Leucadia projects it can produce natural gas at the price of $7.71 per 1 million BTUs. Utilities buying gas on the open market are paying about $4.25 per million BTUs. In December, the Energy Information Administration expects the price would not surpass $6 until after 2025.

Rosenberg, an energy official in President George H.W. Bush's administration, said the federal forecast presumes wider use of gas derived from shale rock, keeping the market price in check in the coming decades.

"Shale gas in my mind is not proven economically," Rosenberg said. "From a national policy point of view, do you really want to rely on incredible increases in shale gas that may never happen?"

[More] On Feb. 14, 2010, Ted Evanoff reported in the Star under the headline "Gas plant backed by Daniels hits snag: Without pipeline's OK, $2.6B Rockport project could be doomed." Some quotes from the long story re the defeat of SB 72 earlier this session, which oddly is not mentioned in today's story:
Indiana's Senate has handed Gov. Mitch Daniels a setback on the big coal gasification plant he wants to see built at Rockport.

Senators rejected a measure that would have cleared the way for a special pipeline sought by investors to move carbon dioxide away from the southwestern Indiana plant to buyers on the Gulf Coast. * * *

Without legislation allowing eminent domain for such pipelines, lead investor Leucadia National Corp. doubts it could secure the federal guarantees on construction loans for the $2.6 billion gasification plant it has proposed at Rockport.

This week, the top Leucadia official in Indiana, Mark Lubbers, once a chief adviser to Daniels, is expected to confer with company and legislative leaders about bringing the eminent domain measure back to the General Assembly.

Backers were stunned when the bill failed Tuesday on a vote of 28-21, with 16 of the chamber's 37 Republicans opposed. * * *

The Illinois and Kentucky pipelines have not been built. The Rockport project is further along. But the absence of a pipeline could scuttle it.

"If the governor's office wants this, it's going to have to figure out what to do next," said Gard, sponsor of defeated Senate Bill 72.

"I had no warning 72 was going to go down," Gard said. "This whole deal was brokered by the governor. The Democrats have a problem with that. And the ultra-conservatives don't like anything that says eminent domain." * * *

A member of the Energy and Environmental Affairs Committee, where Senate Bill 72 originated, Tallian said Denbury, a pipeline operator, wanted eminent domain asserted almost anywhere in the state it chose to run a pipeline.

But the company never gave her a satisfactory reason for why it had no specific route or needed statewide rights, she said.

Nor was there a reason the bill would have handed Indiana's Department of Natural Resources responsibility for eminent domain involving carbon dioxide pipelines, Tallian said. Present laws rest that responsibility with the Indiana Utility Regulatory Commission.

"There is an authority in the state who oversees pipelines. That's IURC. This bill went around that and gave it to DNR," Tallian said. "Why we needed all these strange, out-of-the-normal patterns, I don't know." * * *

[Willaim] Rosenberg, of E3 Gasification in Cary, N.C., called the measure essential. Loan guarantees from federal officials are unlikely if no plan is in place for keeping the carbon dioxide -- a greenhouse gas -- out of the air.

SB 115, a 2010 bill similar to this year's SB 72 died in House Committee in 2010.

Posted by Marcia Oddi on Saturday, March 19, 2011
Posted to Indiana Government

Environment - More on "Unregulated Factory Farm Air Pollution at Some Sites Now Dirtier than America's Most Polluted Cities"

Updating this ILB entry from March 12th, here are some quotes from an editorial today in the Fort Wayne Journal Gazette:

Some large livestock farms create more air pollution than what is found in America’s dirtiest cities. But despite the health risks, environmental regulators don’t enforce air quality rules on livestock operations. * * *

Starting in 2006, the Bush administration made deals with thousands of large confined animal feeding operations raising poultry, cattle and hogs, exempting them from past environmental violation fines or any future violations until a study to set federal standards was complete. In exchange for suspending enforcement, the CAFO owners agreed to supply data on the pollution created at their operations. The program covered more than 6,700 farms in 42 states, including Indiana.

[An] Environmental Integrity Project study [released March 9th] suggested the test results of emission data were significant enough that the deal made with CAFO owners to suspend enforcement should be abandoned. The levels of emissions at some factory farm test sites were higher than at some large industrial plants. And Clean Air Act regulations should be enforced to protect neighbors to the farms. * * *

“No other major industry in the U.S. would be permitted to pollute at these levels without EPA oversight,” wrote Tarah Heinzen, an author of the report. “Our findings indicate that citizens near factory farms may be breathing unsafe levels of small particle pollution, ammonia and other toxic gases, and that EPA’s failure to regulate air pollution from these operations may threaten public health.”

The Indiana Department of Environmental Management doesn’t regulate air quality or odor pollution created by livestock operations; the agency only regulates water quality issues.

Livestock feeding operations need to be held to the same environmental standards as other industries. The study proves the U.S. Environmental Protection Agency and state environmental regulators should be enforcing air pollution regulations for factory farms to protect neighboring property owners’ health.

See also this ILB entry from March 18th, re CAFO Clean Water Act permits.

Posted by Marcia Oddi on Saturday, March 19, 2011
Posted to Environment

Ind. Courts - Madison courthouse rebuilding hits snag

Updating earlier ILB entries, including this one from July 17, 2009, Sara Denhart of the Madison Courier reported yesterday in a story that begins:

The Jefferson County commissioners want to spend about $1 million to pay contractors working on the Courthouse rather than making them wait for a payment from Travelers Insurance.

The Jefferson County Council would have to approve the spending of county money, which would come from the county income tax.

"We've got to do something for these contractors or they are going to walk," Commissioner Tom Pietrykowski said.

About $750,000 in bills are owed to general contractor HGC Construction of Cincinnati. HGC was awarded the reconstruction contract of $3.5 million to rebuild the damaged Courthouse after a fire May 20, 2009.

HGC has installed the third-floor windows and is doing plaster and drywall finishing inside. The contractor plans to paint the third floor next week. The project is expected to be completed by June.

Travelers Insurance was supposed to pay for the work. Travelers has provided about $6.4 million for restoring salvageable county documents, beginning the rebuilding, covering personal property losses and finding temporary office space.

Payment of the insurance claims has been slower than county officials had been told it would be.

Posted by Marcia Oddi on Saturday, March 19, 2011
Posted to Indiana Courts

Friday, March 18, 2011

Courts - "Minnesota Supreme Court Chief Justice Gildea warns against more budget cuts"

T.W. Budig reports in the Princeton MN Union-Eagle, in a long story that begins:

Minnesota Supreme Court Chief Justice Lorie Gildea believes Minnesotans should be outraged over the impact of state budget cuts on the courts.

Gildea points to three cases in recent months where the Minnesota Court of Appeals reversed felony convictions for violent crimes because the judicial system failed to meet a basic obligation.

That is, upholding defendants’ rights to speedy court hearings.

Also today, "Political Storm Clouds Still Hover Over Iowa Supreme Court," an entry from Nathan Koppel of the WSJ Law Blog.

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

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

In U.S. v. Jamison (ND Ind., Miller), a 14-page opinion, Judge Flaum writes:

Dennis Jamison (“Jamison”) was convicted of possessing a sawed-off shotgun, in violation of 26 U.S.C. §§ 5861(d) and 5845(a). During his trial, the district court permitted the government to elicit testimony from Jamison’s wife, Michaell Jamison (“Mrs. Jamison”), on cross-examination regarding Jamison’s aggressiveness. Jamison appeals his conviction, arguing that the question and Mrs. Jamison’s response were irrelevant, unfairly prejudicial, unduly cumulative, and lacked foundation. The government claims that the evidence demonstrated Mrs. Jamison’s bias and motive to lie. We affirm.

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

Ind. Decisions - Court of Appeals issues 3 today (and 1 NFP)

For publication opinions today (3):

In Clinton County, et al. v. Jacqueline R. Clements, et al. , an 18-page opinion, Judge Barnes writes:

The County raises two issues, which we consolidate and restate as whether the trial court erred by granting summary judgment to Clements on her claim of governmental immunity. On cross appeal, Clements raises one issue, which we restate as whether the trial court abused its discretion by denying her motion for attorney fees and costs. * * *

The designated evidence demonstrated that Manatron’s $5,000 proposal was not submitted until months after the County accepted Nikish’s proposal. There is no designated evidence suggesting that Clements was aware of the $5,000 proposal during the February meetings with the County Council and County Board. Even if Clements made a statement to the Council or the Board that it would cost $200,000 for Manatron to upgrade its software, that alleged statement was a statement of opinion, and a claim for intentional misrepresentation cannot rest on a statement of opinion. Moreover, the County was accepting proposals for dot net software, and there is no designated evidence showing that Manatron’s $5,000 upgrade was comparable to the dot net software. The trial court properly found that no genuine issue of material fact existed regarding an intentional misrepresentation and that Clements was entitled to judgment as a matter of law. * * *

[Issue II] requires us to interpret statutes governing the reimbursement of a government employee’s attorney fees. * * *

The plain language of Indiana Code Section 34-13-3-5(e) does not specifically limit the governmental entity’s duty to reimburse the employee even where the governmental entity has filed the action against the employee and would seem to require reimbursement here. However, the trial court denied Clements’s motion based on State v. Evans, 810 N.E.2d 335 (Ind. 2004).

In Evans, the Attorney General filed a complaint against a county prosecutor for reimbursement of public funds that were “misappropriated, diverted or unaccounted for.” Evans, 810 N.E.2d 336. Before filing an answer, the prosecutor filed a motion for appointment of counsel, which the trial court granted. On interlocutory appeal, our supreme court reversed. The court noted Indiana Code Section 33-2.1-9-1(c)(2), which required the Attorney General to defend or the executive director of state court administration to hire outside counsel for a judge or prosecuting attorney sued for civil damages or equitable relief arising out of the scope of the judge or prosecuting attorney’s duties. However, it held that the statute’s objective was to “protect officeholders from litigation by those dissatisfied with the decisions they make” and that absurd results would occur if the Attorney General’s office was litigating and financing both sides of the suit. The court looked to IC 4-6-2-1, which required the Attorney General to defend all state officers unless the suit is brought against them by the state, for the legislature’s intent. However, the court specifically left for another day whether “the statute would afford reimbursement to a defendant who prevails.”

The situation left for another day in Evans is the situation we have before us now. Although our supreme court concluded in Evans that it would be absurd to require the Attorney General to finance both sides of the litigation against the prosecutor accused of misappropriating funds during the litigation, it specifically left open the possibility of reimbursing an employee who prevails in such an action. Here, the County sued Clements, but Clements has prevailed on summary judgment. As our supreme court noted, the statute’s objective is to “protect officeholders from litigation by those dissatisfied with the decisions they make,” which is exactly the situation here. The County was dissatisfied with decisions made regarding the tax software and filed an unsuccessful and, at best, highly questionable action against Clements. * * *

Here, we conclude that interpreting Indiana Code Section 34-13-3-5(e) to preclude payment of Clements’s attorney fees would be unjust. Where, as here, a county has filed an unsuccessful and highly questionable action against its former auditor, it would be unjust to deny her request for reimbursement of her attorney fees. We conclude that Clements is entitled to reimbursement of her attorney fees under a plain reading of Indiana Code Section 34-13-3-5(e). The trial court abused its discretion by denying Clements’s request.

In Kimberly Devlin v. Daniel Peyton , a 6-page opinion, Judge Bradford concludes:
Even assuming that transfer [from the Adoption Court to to the Dissolution Court] might otherwise be appropriate, Father points to no authority, and our research has revealed none, that allows a trial court, absent the approval of the originating court or appellate court, to sua sponte assume jurisdiction over a case pending in another trial court. Consequently, to the extent that the Dissolution Court’s findings and conclusions related to whether it had jurisdiction over the adoption proceeding and addressed the merits of the adoption, those findings and conclusions are vacated. The only issue properly before the Dissolution Court was the question of parenting time for Father. Because Mother does not take issue with the Dissolution Court’s ruling regarding Father’s parenting time, we affirm the Dissolution Court’s judgment to the extent that it addresses that issue.
In Annette (Oliver) Hirsch v. Roger Lee Oliver, a 29-page, 2-1 opinion, Judge Barnes writes:
Annette (Oliver) Hirsch (“Mother”) appeals several rulings by the trial court related to child support from her ex-husband, Roger Lee Oliver (“Father”), for their daughters, Courtney and Elizabeth. We reverse and remand. * * *

We reverse the trial court's emancipation date for Courtney of September 23, 2009, and conclude she was emancipated no earlier than December 10, 2009. We remand for the trial court to recalculate the amount of child support Father has overpaid, and to apportion the payment of uninsured medical expenses incurred by Elizabeth and Courtney in 2009, in accordance with this opinion. We also remand for entry of a post-secondary education expense order as to Father. Finally, we reverse the award to Father of attorney fees and his current wife's travel expenses. Reversed and remanded.

VAIDIK, J., concurs.
BAKER, J., concurs in part and dissents in part with opinion. [that begins, at p. 25 of 29] I respectfully dissent from the majority's conclusions regarding the date of Courtney's emancipation and Father's obligation to contribute to Courtney's post-secondary educational expenses.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Ryan Michael Bodner v. State of Indiana (NFP)

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

Environment - 5th Circuit rules EPA cannot require livestock operations to obtain Clean Water Act permits unless they are discharging manure into a waterway of the U.S.

The decision is Natl Pork Producers, et al v. EPA. Access the 29-page, March 15, 2011 opinion here. Here is the conclusion:

We hereby vacate those provisions of the 2008 Rule that require CAFOs that propose to discharge to apply for an NPDES permit, but we uphold the provisions of the 2008 Rule that impose a duty to apply on CAFOs that are discharging. We vacate those provisions of the 2008 Rule that create liability for failing to apply for an NPDES permit. Additionally, we uphold the provisions of the 2008 Rule that allow permitting authorities to regulate a permitted CAFO’s land application and include these requirements in a CAFO’s NPDES permit. Finally, we dismiss the Poultry Petitioners’ challenge of the guidance letters for lack of jurisdiction. 29

Posted by Marcia Oddi on Friday, March 18, 2011
Posted to Courts in general | Environment

Ind. Law - Long-time Res Gestae editor in auto accident

Susan Ferrer, Director of Communications, editor of Res Gestae, and all-around ISBA mainstay, was driving through Lockerbie last evening, returning from choir practice, when t-boned by a drunk driver. According to Chauncey Lipscomb, the ISBA receptionist, Susan is in Methodist Hospital with several broken bones. She is in our thoughts.

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

Ind. Law - Anything can be attached to budget ... [Updated]

Interesting item in latest RTV 6 post by Abdul Hakim Shabazz:

And while lawmakers plan to follow the germane rule, which means only legislation that’s relevant can be attached to bills, that rule does not apply to the budget and anything can be attached there.
Is this right? What are the relevant Senate Rules? Senate rules 50 and 51 deal with the subject matter of bills:
50. No motion to amend, committee action, concurrence or conference committee action which seeks under color of amendment to substitute or insert subject matter not germane to that of the bill or resolution under consideration shall be in order. However, this rule does not apply to House bills raising revenue and relating to other taxation matters.

51. Any conference committee report not in accordance with Article 4, Section 19 of the Constitution shall not be in order.

Note the difference between the "germaneness" test, an internal legislative rule, and the one-subject requirement of the Indiana Constitution's Art. 4, Sec. 19.

For background I turned to the early March 2005 ILB entries dealing with the Democratic boycott that "doomed 132 bills." See the entries here from March 2, March 3, and March 4, 2005, all under the general heading, "How dead are these bills, really?" and "What might the Senate (and/or the House) do about the 'dead' bills?"

For something more recent, see this ILB entry from March 3, 2010, headed "Jobs-creation provisions are in peril: Senate strikes items from bill; new home sought as session winds down." A quote from the IndyStar story that day:

Senate President Pro Tempore David Long, R-Fort Wayne, ruled that the jobs package Democrats had inserted into Senate Bill 396 was not germane to the bill's main subject matter of addressing agricultural property tax assessments.
The entry ends with this ILB observation:
In my experience, just how strictly the Senate rule is adhered to depends upon the Pro Temp and the circumstances. And under the separation of powers, non-adherence of the General Assembly to its internal rules may not be successfully challenged in court.

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

Ind. Law - "Ex-GOP chief Kittle to plead guilty in DUI case"

So reports Robert Annis in the Indianapolis Star. A quote:

James Louis Kittle, 67, will plead guilty to up to two misdemeanor operating while intoxicated charges. Details on the plea aren’t yet known, but it’s doubtful Kittle will do any jail time.

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

Ind. Law - Still more on "Indiana rethinking nuclear energy plans"

Updating what is now a series of recent ILB posts on the history and future of nuclear power in Indiana, see this long story by Vicki Urbanik in yesterday's Chesterton Tribune headed "Nuclear plant in the Indiana Dunes? Japan's crisis brings back memories." Some quotes:

The time period was 1967 to 1981, when NIPSCO proposed its Bailly I nuclear power plant to be built next to the existing coal-fired plant at Dune Acres.

The anti-nuclear fight inspired [Herb] Read and other Save the Dunes Council supporters to form the Concerned Citizens to bring legal challenges to the project. The appeals went all the way to the U.S. Supreme Court.

In 1977, the Bailly Alliance, a coalition of citizens, environmentalists, labor, and others was formed to take the fight public. The group leafleted, picketed, rallied, testified in Washington, and otherwise fought tooth and nail to keep a nuclear plant out of the Indiana Dunes. The group’s efforts culminated in a 1981 march and rally of 2,000 people in the adjacent Indiana Dunes National Lakeshore. * * *

The estimated cost of the project had risen from less than $100 million in 1967 to more than $1 billion in 1981.

Ultimately, NIPSCO was required to refund $81 million spent on the project obtained by what the Citizens Action Coalition of Indiana said was an illegal rate increase for the incomplete plant.

According to Read, NIPSCO sold its reactor to a company in Japan.

The reactors that exploded in Japan this week were the same type that NIPSCO proposed here, GE boiling water reactors.

Read said the issues now unfolding over the safety of nuclear power were the same ones debated nearly 30 years ago here.

The efficiency of the coolant, the health effects of radiation leakage, and the numbers of people who could be harmed were among the concerns argued here just as they are now in Japan.

In the Bailly fight, opponents tried to argue that the efficiency of the cooling would be a problem, but that argument wasn’t allowed in testimony, he said.

Estimates of the area’s population were also skewed, Read recalled, citing a map that identified one area near the plant as “forest cover.”

Read said in actuality, the area included an apartment building, and he submitted photos of that building to the NRC. But the NRC determined that his photographs weren’t legitimate, since the official map showing the forest cover was prepared by a professional mapmaker.

Bailly I was ultimately stopped after one particular delay over the proper foundation for the plant. Read said NIPSCO found that it couldn’t drive the pilings down to bedrock -- as the opponents had predicted -- and proposed resting the foundation pilings in sand and clay.

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

Thursday, March 17, 2011

Ind. Gov't. - Senate Rs and House Rs will work on amending stalled bills into house bills in the senate

Latest word: Senate Rs and House Rs will work on amending stalled bills into house bills in the senate. Will begin next week.

Of course, if a House bill is amended in the Senate, the House must concur in the changes before it is final. And that requires a quorum to conduct business. So it could all come down to the last day ...

[More at 3:23 pm] Mary Beth Schneider of the Indianapolis Star: The most recent update to the now lengthy online story includes:

In a news conference, he and Senate President Pro Tempore David Long, R-Fort Wayne, said the Senate next week will start identifying bills in which they can insert various issues that have been hung up in the House walk-out. And they will begin holding hearings on the budget, redistricting and other key issues which must be completed by April 29. Failure to have a new budget and new legislative and congressional district maps by that date — set in law as the session’s deadline — would force a special session.

"The future of the democratic process is at stake right now," Bosma said in the 40-minute press conference with Long.

Sen. Luke Kenley, who chairs the Senate Appropriations Committee, said he would begin hearings on the budget Monday. The House had not yet passed a budget when Democrats walked out Feb. 21. The unusual move of transferring the budget process to the Senate allows the legislature to continue hearings after nearly a month of inaction.

"The transparent process constituents have come to expect takes time and effort on lawmakers' part," he said. "We should not rush. We should get it right."

The Senate could pass a budget by amending it into another bill that has already come over from the House. House Democrats would still need to come back to approve the final budget, but they would have no input into the bill.

Posted by Marcia Oddi on Thursday, March 17, 2011
Posted to Indiana Government

Ind. Gov't. - Does Speaker Bosma now have power to garnish both public and private wages? [Updated]

Mary Beth Schneider of the Indianapolis Star just tweeted:

In addition to increasing the fines to $350, Bosma now has power to garnish both public and private wages of Democrats to collect the fines.
My thought: They may need a statute to do this.

Here from the current House Rules:

#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.

From the Constitution: Article 4, Section 11:
Section 11. Two-thirds of each House shall constitute a quorum to do business; but a smaller number may meet, adjourn from day to day, and compel the attendance of absent members. A quorum being in attendance, if either House fail to effect an organization within the first five days thereafter, the members of the House so failing, shall be entitled to no compensation, from the end of the said five days until an organization shall have been effected.
This constitutional provision appears to be implemented by this current House rule:
#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.

Finally, proposals to amend the House rules may be approved by the House Rules Committee, but they must be adopted though a vote of the House.

[Updated at 11:42 am] Ms. Schneider has just posted this Star story. A quote:

House Speaker Brian Bosma, R-Indianapolis, said Republicans had made a "firm and final offer" by offering additional changes to House Bill 1216. He said he and Senate President Pro Tempore David Long, R-Fort Wayne, will hold a news conference this afternoon to discuss how they will handle the remainder of this legislative session.

For their part, Democrats said the increased fines -- which are now $350 per session day that they miss, up from $250 -- will only strengthen their resolve.

Posted by Marcia Oddi on Thursday, March 17, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Company v. Review Board & T.A., et al. , a 12-page, 2-1 opinion, Sr. Judge Sharpnack writes:

Appellant C.G., LLC appeals a decision by Appellee Review Board of the Indiana Department of Workforce Development. The Board determined that Appellees T.A. et al. are entitled to unemployment insurance benefits. We reverse and remand.

CG raises one issue, which we restate as whether the Board erred in ruling that the Employees, who had participated in a buyout program and terminated their employment with CG, were entitled to benefits. * * *

At the time that CG offered EVTEP [Enhanced Voluntary Termination of Employment Program] to its workforce, some of the Employees were actively working and some had previously been laid off. The laid-off Employees were receiving unemployment benefits. All of the Employees participating in this case signed up for EVTEP and terminated their employment with CG. Subsequently, Employees who applied for unemployment benefits were denied, and previously laid-off Employees who had been receiving benefits found that their benefits were terminated. The Employees appealed to an Administrative Law Judge (“ALJ”). The ALJ determined that Employees who had been on indefinite layoff when they joined EVTEP were entitled to unemployment benefits, but Employees who were on temporary layoff or were actively working at CG at the time they signed up for EVTEP were not entitled to benefits.

CG and the Employees both appealed the ALJ’s decision to the Board. The Board rejected the ALJ’s distinction between actively working Employees and laid-off Employees for purposes of eligibility for benefits. The Review Board further determined that all of the Employees lacked good cause to voluntarily leave their employment when they took part in EVTEP and resigned from CG. If good cause for resignation were the sole issue, the Board stated, “the [Employees] would be disqualified from receiving unemployment benefits.” Nevertheless, the Board concluded that all of the Employees remained eligible for unemployment benefits pursuant to Indiana Code section 22-4-14-1(c) (2008), which we discuss below. CG now appeals. * * *

CG asserts that under the plain language of the statute, the Employees are not entitled to benefits because CG did not offer EVTEP to avert or lessen the effect of a layoff or plant closure. * * *

We are left with the Board’s conclusion that, without the application of Indiana Code section 22-4-14-1(c), the Employees “did not have good cause to voluntarily leave their employment” and would be “disqualified from receiving employment benefits.” The Employees do not challenge that conclusion. Consequently, the Board’s decision that the Employees are entitled to benefits is erroneous.

For these reasons, we reverse the Review Board’s decision and remand for further proceedings consistent with this opinion. Reversed and Remanded.

BROWN, J., concurs.
KIRSCH, J., dissents with separate opinion. * * *

I believe that my colleagues’ decision to deny unemployment compensation benefits to the claimants in this case contravenes this explicit directive [of the statute], and for such reason, I respectfully dissent. * * *

To say that the workers who accepted EVTEP retired for personal reasons is to ignore economic reality. This economic reality was marked by layoffs and plant closings across our state and our country. Those layoffs and plant closings drove the decision of the claimants in this case to accept EVTEP. In this economic reality, Chrysler did not have to say that EVTEP was offered to lessen or avert a layoff or plant closing. Such fact was obvious to all. EVTEP was not offered by Chrysler because its financial prospects were good. To the contrary, EVTEP was offered by Chrysler to its workers because those prospects were dire.

The Review Board of the Indiana Department of Workforce Development concluded that the claimants accepted EVTEP as an offer of payment to avert or lessen the effect of a layoff or plant closure and that they otherwise met the eligibility requirements of the Act. I would defer to the Board and its expertise in employment matters and affirm its decision in all respects.

ILB Question: I had thought that a senior judge couldn't be the determinative vote on an opinion, and this one is 2-1 ... Or is it that the senior judge must always author the opinion, so if she/he ends up in the dissent, she/he must be replaced?

NFP civil opinions today (2):

James Freels v. Bethlehem Steel Corp. (NFP)

Raymond K. Haley v. Dalana K. Haley (NFP)

NFP criminal opinions today (6):

Deago Tyree Hooper v. State of Indiana (NFP)

Nicole Cooper v. State of Indiana (NFP)

Heather Lace v. State of Indiana (NFP)

John R. Williard v. State of Indiana (NFP)

Jonathon Garrett v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Thursday, March 17, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Are Delaware County "riding bailiffs" endangered?

A long Walker/Roysdon column today in the Muncie Star-Press begins:

Are Delaware County officials using local government's current budget-cutting fervor to punish their political enemies?

And have they awakened a sleeping giant by irritating local judges?

During a Monday meeting, the Delaware County commissioners will consider an ordinance to eliminate the use of riding bailiffs in the local court system.

Riding bailiffs are roving representatives of local judges, ranging around the county, serving court paperwork. They are the "feet on the street" of judges.

The ordinance, which will be introduced in Monday's meeting, notes that the county "is facing a serious budget shortfall" and that the county "is one of only a few counties in Indiana that still has riding bailiffs."

Posted by Marcia Oddi on Thursday, March 17, 2011
Posted to Indiana Courts

Ind. Law - More on "Indiana rethinking nuclear energy plans"

Updating this ILB entry from yesterday, John Russell of the Indianapolis Star has this lengthy story today, headed "Indiana's interest in nuclear power is dampened: Lawmakers want to 'step back' from idea of an Indiana plant." Some quotes:

As Japan scrambles to control fires and radiation at its crippled nuclear power reactors, Indiana leaders are backing away from an effort to promote nuclear power here, and nuclear critics are stepping up their opposition.

Indiana, which has long relied on the state's abundant coal reserves for energy, has no nuclear plants. Neighboring states have 17 nuclear power plants, many of them more than 30 years old and approaching the end of their licensed life.

Just last month, the Indiana Senate passed legislation [SB 251] that would encourage the construction of the state's first nuclear plant or perhaps a small, modular nuclear plant. The bill would provide financial incentives to companies to build a nuclear plant, allowing them to pass along construction costs to customers years before the plant goes into operation. * * *

"With the events in Japan, I think you really need to take a step back," said Sen. Beverly Gard, R-Greenfield, one of the bill's authors. "I think it's going to take months, if not years, for an investigation to get to the source of the problem." * * *

But some Indiana lawmakers say they continue to support nuclear energy, despite the problems in Japan. They say the technology has improved in recent decades, and the safety record is good overall.

"Nuclear energy is an alternative we need to consider," said Rep. Robert Behning, R-Indianapolis. "For us to stick our heads in the sand is not responsible. . . . The truth is, we are faced with a dilemma. How do we meet the growing needs of electricity?" * * *

The Midwest is awash in aging nuclear plants, some built in the mid-1970s. Illinois has 11 nuclear plants. Michigan has four and Ohio has two. * * *

There hasn't been a new nuclear plant built in the U.S. since the Three Mile Island accident near Harrisburg, Pa., in 1979, when a partial core meltdown ignited widespread opposition to nuclear power. Two separate efforts in Indiana to build nuclear power plants here in the 1980s were scrapped in the face of rising opposition and high costs.

The Northern Indiana Public Service Co. had proposed a 644-megawatt Bailly Nuclear Power Plant at a site near the Indiana Dunes National Lakeshore in 1967. It was never built. And Public Service Indiana proposed the Marble Hill Nuclear Power Station, with two nuclear reactors, in southeast Indiana in 1973. The company halted the project in 1984 when it was half-built. PSI was nearly bankrupted by the effort and was later bought by Cinergy, now part of Duke Energy.

"Both projects fell down under the weight of economics of building nuclear reactors. It's just too expensive," said Kerwin Olson, program director at Citizens Action of Indiana, which opposes nuclear energy. [ILB: SB 251 was designed to address that problem, by permitting CWIP]

But Indiana does receive electricity from a nuclear plant in southern Michigan, less than an hour north of South Bend.

Most of the output from the Cook Nuclear Power Plant, operated by the Indiana Michigan Power Co., goes to power homes and businesses in Northern Indiana. The plant, with two reactors, went online in the mid-1970s, and is licensed to operate for at least another two decades.

For more on Cook, see this entry from yesterday, headed "Japan: Could similar disaster happen here?"

[More] At 10:06 am on the NPR Diane Rehm show, Japan's Nuclear Crisis and Its Impact on the Nuclear Industry." The audio will be archived.

Posted by Marcia Oddi on Thursday, March 17, 2011
Posted to Indiana Law

Courts - "Welcome to Debtors' Prison, 2011 Edition " [Updated]

Today's WSJ has this long story by Jessica Silver-Greenberg. Here is a quote:

More than a third of all U.S. states allow borrowers who can't or won't pay to be jailed. Judges have signed off on more than 5,000 such warrants since the start of 2010 in nine counties with a total population of 13.6 million people, according to a tally by The Wall Street Journal of filings in those counties. Nationwide figures aren't known because many courts don't keep track of warrants by alleged offense. In interviews, 20 judges across the nation said the number of borrowers threatened with arrest in their courtrooms has surged since the financial crisis began.
Here is an intriguing paragraph from near the end of the story:
Earlier this year, Vanderburgh County, Ind., Superior Court Judge Robert Pigman asked Indiana's highest court to review the legality of debt-related warrants after law-enforcement officials complained they can't quickly access arrest orders for dangerous criminals because their computer system is clogged with debt cases. The Indiana Supreme Court hasn't responded to the request.
A photo is captioned: "Jeffrey Stearns, of [Hancock County] Indiana, spent two nights in jail over a $4,024.88 debt." Details about Stearns' jailing, from the end of the story, include that he was arrested and jailed "for not paying $4,024.88 owed to a unit of American International Group Inc. on a loan for his pickup truck."

[More] The WSJ Law Blog has commentary on the article, in an entry headed "On the Rise of Debtor’s Prison: ‘The Scariest Thing That Ever Happened to Me’."

[Still More] See this ILB entry from June 9, 2010, headed "Is jailing debtors the same as debtors jail?" It is about the case of Perry County's Herman Button.

Posted by Marcia Oddi on Thursday, March 17, 2011
Posted to Courts in general | Indiana Courts

Ind. Decisions - More on "Greenwood annexation timing creates ripples: It may not happen in time for new residents to vote, run for office"

Updating this ILB entry from Feb. 10, 2011, Diana Penner of the Indianapolis Star reports today:

A judge has put the final legal touches on Greenwood's annexation of about 1,800 acres along Ind. 135, ending a protracted dispute with Bargersville that went all the way to the Indiana Supreme Court.

In addition, Johnson County Commissioners voted Monday to transfer police, fire, streets, and planning and zoning responsibilities to Greenwood.

Special Judge Thomas K. Milligan, Crawfordsville, who was appointed to hear the case to avoid a conflict for Johnson County judges, filed the final order on the case on March 2.

Milligan initially ruled in Bargersville's favor, and Greenwood took the case to the Indiana Court of Appeals. That court ruled in Greenwood's favor, so Bargersville appealed to the next level.

The state Supreme Court tied 2-2 in the case, effectively upholding the appeals court's ruling, meaning Greenwood had won. However, it took several weeks for the legal requirements to be fulfilled and the case sent back to Milligan for orders in line with the higher courts' decisions.

Under Milligan's order, Bargersville can continue to provide sewer services to portions of the previously unincorporated land where it already had extended sewer lines, but it cannot add to the system.

All municipal services are to be provided by Greenwood in the future, unless Greenwood agrees to let Bargersville provide some services, Milligan wrote.

Milligan had issued a previous partial order in response to the high court ruling, specifically to allow residents of the affected area to vote in Greenwood city elections in the May primary.

The additional order was needed, however, for Greenwood to begin collecting taxes from the area and to begin providing fire, police, street and other services.

Posted by Marcia Oddi on Thursday, March 17, 2011
Posted to Ind. Sup.Ct. Decisions

Wednesday, March 16, 2011

Ind. Gov't. - More on "Charlie White's case is about much more than indictment"

Updating this ILB entry from March 6, 2010, that included at the end:

[T]he April 6th hearing is in Marion Circuit Court. The ILB has obtained a copy of the 38-page Indiana Democratic Party's "Brief in Support of Reversal of Indiana Recount Commission." Access it here. The ILB also would be pleased to post the response.
The ILB has now received copies of both the Attorney General's 16-page "Brief in Opposition to Reversal of Decision of Indiana Recount Commission," and the 8-page "Response Brief Opposing Reversal of the Indiana Recount Commission," submitted by James Bopp as counsel for Charlie White.

Posted by Marcia Oddi on Wednesday, March 16, 2011
Posted to Indiana Government

Ind. Courts - More on "Clark County Council again makes budget cuts: Courts, clerk say they might not be able to operate later in the year"

Updating yesterday's entry on Clark County budget woes, see this story today by Lesley Stedman Weidenbener of the Louisville Courier Journal on HB 1266. Some quotes:

The Senate Judiciary Committee will consider legislation Wednesday that would consolidate Clark County’s circuit and superior courts, including their budgets and staffs.

House Bill 1266 would eliminate three Superior courts and merge them into the current Circuit Court, creating a department with four judges and two magistrates. * * *

Local officials said the bill should help the county deal with a growing caseload. The number of new cases filed in Clark County increased 49 percent from 2005 to 2009, compared with a statewide increase of just 21 percent.

Posted by Marcia Oddi on Wednesday, March 16, 2011
Posted to Indiana Courts

Ind. Courts - Town court (or less) issue raises head again

Remember this story from Dec. 1, 2010, headed ""Bill would allow Indiana cities and towns to collect their own money for ordinance violations, rather than going through the regular county court system," followed by a reader's comment: "This is a mistake. This will allow a small town to be judge jury and executioner. The old days of small town speed traps will again bloom." The story was in the Greene County Daily World.

Today the Greene County Daily World has this story, by Mark Stalcup, that begins:

LYONS - The Town Council could soon find the ticket to increased local revenue, investigating whether citations can be collected by the town clerk for traffic violations.

Clerk-Treasurer Kim Flynn said she's been told she cannot collect money for traffic violations, even those against local ordinances.

"I am told not to take any money for moving violations," she said.

Instead, they must be collected by the county clerk.

However, the Town of Worthington collects fines from local ordinance violations, spurring the town council to investigate

Town Marshal Ron Sparks said he presently receives $3 per ticket and a portion of deferrals for citations he writes on traffic violations.

However, with the increased potential revenue from citations based on town ordinances, Sparks joked, "I could write enough to cover my own wages just on East Broad Street."

Enforcing the ordinances might prove a better deal for motorists, too, said Council President Scott Powers, as ordinance violations don't typically cause their auto insurance to increase.

Because Worthington and Lyons both employ attorney Luke Rudisill, the council will seek information about how they can potentially adopt their own enforcement.

Posted by Marcia Oddi on Wednesday, March 16, 2011
Posted to Indiana Courts

Ind. Courts - "Prosecutor’s Money Request Was OK"

Eagle Country News 93.3 FM, covering SE Ind., N. Ky. add SW Ohio, reports today:

(Lawrenceburg, Ind.) - Dearborn County Prosecutor Aaron Negangard was not wrong in asking the county to pay for legal expenses.

That’s what county attorney Andrew Baudendistel told county commissioners Tuesday.
Last month, a citizen questioned the legality of county council approving $25,000 in legal fees which Negangard requested last December for a disciplinary proceeding before the Indiana State Bar Association. [ILB: That should read "Indiana Disciplinary Commission"]

Baudendistel cited case law to commissioners, although none met the exact circumstances of Negangard’s case.

The attorney’s report concluded that the payment was appropriate under Indiana’s “Home Rule” statute that gives broad authority to county governments in cases that were not otherwise governed by specific state laws.

Normally, county prosecutors facing disciplinary action are represented by their county attorney. However, the complaint filed was by former county attorney Michael Witte and presented an obvious conflict.

Posted by Marcia Oddi on Wednesday, March 16, 2011
Posted to Indiana Courts

Ind. Gov't. - Japan: Could similar disaster happen here?

Indiana doesn't have a nuclear power plant, but several surrounding states do. South Bend Tribune reporter Lou Mumford today looks at Michigan. A quote:

[Mark Savage, spokesman for the Palisades Power Plant in Covert, Mich.] said Palisades, like the Cook Nuclear Plant in Bridgman, was built to withstand earthquakes, tornadoes and airplane crashes. That applies also to the plants now in crisis mode in Japan where the problem, according to Bill Schalk, the spokesman at Cook, was the quake's "one-two punch."

"In the case of Japan, it was both the seismic event, which the plants withstood as they were designed to do, actually, and the tsunami," he said. "The tsunami took out the generators and electricity they needed to flood the reactors. That's what took them down."

BTW, the question of what would happen if there were simply a massive failure of the power grid is not asked in the story.

This CBSDetroit story has another good photo of "Indiana Michigan Power’s Cook Nuclear Plant Unit 1 near Bridgman, on the southeast shore of Lake Michigan."

Posted by Marcia Oddi on Wednesday, March 16, 2011
Posted to Indiana Government

Ind. Law - More on: Senate hearing this morning on HJR 6

Updating this ILB entry from earlier today, Heather Gillers of the Indianapolis Star has good coverage of this morning's testimony on HJR 6. Some snippets:

[S]upporters of the ban reiterated their conviction that allowing only men and women to marry protects the American family.

Opponents protested that such a ban would write discrimination into the constitution and that a provision banning civil unions could interfere with employers” ability to offer domestic partner benefits and therefore interfere with their ability to attract talented gay candidates.

A vote on the measure was postponed until next week.

It already is illegal for gay people to marry in Indiana, but the effort to add that prohibition into the state’s founding document has gathered steam this year with a Republican majority in both houses.

The bill's author, Rep. Eric Turner, R-Cicero, assured lawmakers Indiana has plenty of company.

“Around the country 30 states have constitutional amendments,” Turner said. “With the exception of Illinois every state around Indiana has a constitutional ban on (same-sex) marriage.” * * *

Attorney General Greg Zoeller has also offered to defend a same-sex marriage ban if it becomes part of the constitution. * * *

Deborah Anne Widiss, who teaches at IU-Bloomington School of Law, testified that she believes the ban — particularly the ban on civil unions, which is not currently in Indiana law — could preclude employers, particularly public employers from offering domestic partner benefits. She said a Michigan court had ruled that a similar constitutional ban did interfere with domestic partner benefits.

CEOs of many of Indiana’s largest employers, including Wellpoint, Cummins, Emmis, Simon Property Group and Eli Lilly and Co., have come out against the amendment, saying it will “have a chilling and discriminatory effect on many of our employees.”

The human resources director at Cummins, Inc., testified that passing the amendment will hurt the company’s ability to attract younger qualified workers and make Cummins, which has $1.4 billion annual impact on the state economy, reluctant to add jobs.

Indianapolis Mayor Greg Ballard has also come out against the amendment, pointing out that same-sex marriage is already legal, and saying that he wants to stand with the business community.

Posted by Marcia Oddi on Wednesday, March 16, 2011
Posted to Indiana Law

Ind. Decisions - 7th Circuit decides one Indiana case today

In Siliven, et al. v. Ind. Dept. of Child Services (SD Ind., Lawrence), a 20-page opinion, Judge Flaum writes:

In January 2008, Teresa Siliven discovered bruises on her then-two-year-old son C.S.’s arm a few hours after picking him up from daycare at the home of Ashley Woods. Teresa’s husband Mark told her that he did not know how C.S. had gotten the bruises. The Silivens filed a child abuse report with the police. The case was referred to the Indiana Department of Child Services (“DCS”), and assigned to case manager Amber Luedike. Towards the end of an eight-day investigation into both Woods and the Silivens, Luedike discovered a DCS file indicating that Mark had been accused of child abuse by his then-fifteen-year-old stepdaughter in 2003. The day after Luedike discovered the report, she and Terry Suttle, the director of the Wayne County DCS, decided to remove C.S. from the Siliven home. They did not obtain a court order as it was Friday afternoon, and they did not believe there was adequate time to do so. Instead of putting C.S. in foster care, Luedike and Suttle ultimately arranged to have Teresa take C.S. to his grandmother’s house in Ohio. A detention hearing was held the following Monday, after which the court concluded that no probable cause existed at that time to believe that C.S.’s physical health was seriously endangered. The Silivens were permitted to take C.S. home. Soon thereafter, the investigation was closed.

The Silivens filed suit against Luedike, Suttle, and the Indiana DCS, alleging constitutional and state law violations. The district court concluded that Suttle and Luedike (the only defendants at issue on appeal) were entitled to summary judgment on the federal claims on qualified immunity grounds, finding that the constitutional rights allegedly violated were not clearly established in January 2008. For the following reasons, we affirm the judgment of the district court. * * *

We are not unsympathetic to the Silivens. One can only imagine their frustration when, after reporting potential abuse of their child by a third party, the investigation came to focus on them. However, for the reasons stated above, we conclude that the particular interference with the Silivens’ constitutional rights that occurred here was reasonable in view of the facts known by defendants and the state’s strong interest in protecting children from abuse. For the foregoing reasons, we AFFIRM.

Posted by Marcia Oddi on Wednesday, March 16, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In North Willow Operating LLC, et al. v. Stephanie Clay , a 3-page opinion, Judge Brown writes:

North Willow Operating LLC d/b/a Golden Living Center-North Willow, John Doe 1, and John Doe 2 (collectively, “North Willow”) bring this interlocutory appeal and argue that the court erred in denying their Motion to Dismiss, Demand for Arbitration and to Compel Arbitration. Finding sua sponte that North Willow failed to timely bring this appeal, we dismiss.
NFP civil opinions today (1):

Pioneer Title v. Chanda Gartin (NFP)

NFP criminal opinions today (3):

Natalie Long v. State of Indiana (NFP)

Duncan Dillard v. State of Indiana (NFP)

Darby L. Hape v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 16, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - Senate hearing this morning on HJR 6

This morning the Senate Judiciary Committee is holding a public hearing on HJR 6, the proposed constitutional ban on same-sex marriage. Both Cummins and Lilly representatives are present, testifying against the amendment. I don't recall that they testified before the House committee hearings earlier this ession, although several years ago the companies did testify against a similar measure, SJR 7, which failed to pass out of House committee on April 3, 2007.

From an editorial today in the Indianapolis Star:

Yet, Republicans also have wasted far too much time on secondary issues. The Senate, for example, is today scheduled to take up consideration of a constitutional ban on same-sex marriage. The proposed ban already has passed the House, back when that chamber was at least at some level of functionality. If the Senate also approves the resolution, the issue would come back before the General Assembly in two years, and, if passed again, go before voters in 2014.

It's important to remember that Indiana already has a strong and secure law against gay marriage. Unlike in other states, Indiana's law is not under challenge in the courts, and likely wouldn't be overturned if it were brought up for legal review.

So what would be accomplished by a constitutional ban? It would send a strong message that not only gays and lesbians but also their families and friends aren't fully welcome in Indiana.

That's why several top business leaders -- whose companies depend on the ability to recruit and retain skilled workers from a wide range of backgrounds -- have spoken out against the constitutional ban. Today, on the facing page, the chief executive officers of five major Indiana employers implore legislators not to move forward with the proposed amendment. Their concerns for the long-term strength of this state need to be fully considered.

Here is the letter, headed "Marriage ban distracts from economic goals." It is signed by Angela F. Braly, chairman, president and CEO of WellPoint; John C. Lechleiter, chairman, president and CEO of Eli Lilly and Co.; David Simon, chairman and CEO of Simon Property Group; Jeffrey H. Smulyan, chairman, president and CEO of Emmis Communications Corp.; Tim Solso, chairman and CEO of Cummins. A sample:
Over the last decade, our companies began providing various domestic-partner benefits. We did so because we believe that embracing diverse perspectives, skills, experiences and talents engages our employees and strengthens our decision-making. Simply put: Diversity is critical to our success. Moreover, we have an obligation to our shareholders, our customers and others to consider the impact of any legislative proposal on the reputation of our state as a tolerant and inclusive place to live and work. Our success is directly affected by our ability to attract the best talent in the world. We're in a global war for such talent, which requires more than just offering competitive salaries and benefits. We also must offer a diverse and innovative state and community for people to call home. HJR 6 would severely limit our ability to bring those talented individuals home to Indiana.

Posted by Marcia Oddi on Wednesday, March 16, 2011
Posted to Indiana Law

Ind. Law - "Indiana rethinking nuclear energy plans"

Until today, the ILB's most recent entry on SB 251 was on Feb. 28, 2011. That entry quoted from a Gary P-T story, headed "Bailly activists weigh in on nuclear bill ." The still available story has a great photo of the proposed Bailly Nuclear Power Plant in Porter County, planned in 1979 to be built right on the shore of Lake Michigan.

Also on Feb. 28, the Indy Star published this opinion piece on SB 251, authored by state senators Beverly Gard, Brandt Hershman and Jim Merritt, headed "My View: This bill offers the right energy policy for state."

Yesterday Diane Krieger Spivak, who also authored the earlier Bailly story in the Gary Post Tribune, reported:

Indiana could be backing off on its push to promote nuclear energy, following the nuclear reactor meltdown in Japan.

Senate President Pro Tempore David Long, R-Fort Wayne, called for the state to step back and take a critical look at Senate Bill 251, the state’s alternative energy bill authored by Long that includes promotion of nuclear energy, among others.

The Senate passed the bill Feb. 22 and moved it to the House, where it waits with other bills for Democrats to return from their walkout.

“Given what happened in Japan in the past few days this certainly gives us great pause, and we need to take a step back, try to understand how this happened,” Long said, referring to Friday’s earthquake and tsunami that has caused partial meltdown in Japan’s Fukushima Dai-ichi nuclear plant.

Last evening WTHR.com's Jeremy Brilliant has this story, headed "Abandoned plant marks Indiana's shot at nuclear power." It includes photos of the abandoned Marble Hill nuclear power plant.

Today the Fort Wayne Journal Gazette has this editorial, headed "Drop nuclear energy bill." It concludes:

On Feb. 22, the Indiana Senate passed Senate Bill 251, which would encourage construction of plants that generate nuclear energy.

Among other things, the bill would allow utility companies to switch the financial burden to build such plants from shareholders to current customers. This financing would represent a marked change in how utilities pay for projects in Indiana, one that deserves more debate.

The bill would also ensure utility companies building new nuclear generating plants “qualify for financial incentives available for clean energy projects.”

Indiana does experience earthquakes, tornadoes and flooding, all of which could cause power outages.

It took a generation after the nuclear accidents at Three Mile Island and Chernobyl before fears died down. The passage of time, new technology and concerns about increasing oil prices and global warming have revived interest in nuclear power.

The U.S. Department of Energy is working to expand nuclear energy with a guaranteed loan program that will offer billions of dollars of financial backing for companies investing in nuclear power. Administration officials said they would look to learn from the disaster. They also said the crisis in Japan won’t deter the country’s nuclear power plans. But maybe it should.

Indiana already has a sketchy history with its previous attempts at nuclear power generation. State leaders would be foolish not to take the disaster in Japan as a reminder of the dangers of nuclear power.

A more careful and public examination of all the potential dangers needs to happen before state leaders decide going nuclear is the only way to meet the state’s future electricity demands.

Posted by Marcia Oddi on Wednesday, March 16, 2011
Posted to Indiana Law

Tuesday, March 15, 2011

Ind. Gov't. - Does this letter spell out precisely what it will take for the Democrats to return this session?

Eric Bradner of the Evansville Courier & Press has posted this letter, hand delivered today, from Rep. Bauer to Speaker Bosma.

Posted by Marcia Oddi on Tuesday, March 15, 2011
Posted to Indiana Government

Ind. Gov't. - More on: Secretary of state appoints replacement for top deputy

Updating yesterday's ILB entry, WISH TV is reporting this evening:

AJ Feeney-Ruiz is the new communications director for Charlie White. He comes with experience gained under former Secretary of State Todd Rokita and promises a new approach that includes the release of Rokita's investigation into Charlie White's voter registration. * * *

Jerry Bonnet became White's chief of staff on Monday. He replaced Sean Keefer, who quit and departed on Friday. Now Bonnet and Feeney-Ruiz promise transparency that includes the release of the Rokita investigation in White's voter registration.

"Confident that there aren't going to be any curve balls or anything that come out of it," says Feeney-Ruiz. "So just let Hoosiers see it, let Hoosiers decide."

Posted by Marcia Oddi on Tuesday, March 15, 2011
Posted to Indiana Government

Ind. Gov't. - Still more on: "Federal prosecutors: inmate ran Indiana drug ring from prison

Updating this ILB entry from April 20, 2010, this new tweet from KimmieKFOX59:

@fox59 breaking:new castle jail inmate wesley hammond convicted of running major meth drug ring from his jail cell!

Posted by Marcia Oddi on Tuesday, March 15, 2011
Posted to Indiana Government

Courts - "Jury: Blogger Johnny Northside must pay $60,000 to fired community leader"

Abby Simons of the Minneapolis-St.Paul Star-Tribune reported March 12, 2011 in a long story that began:

Though blogger John (Johnny Northside) Hoff told the truth when he linked ex-community leader Jerry Moore to a high-profile mortgage fraud, the scathing blog post that got Moore fired justifies $60,000 in damages, a Hennepin County jury decided Friday.

Posted by Marcia Oddi on Tuesday, March 15, 2011
Posted to Courts in general

Ind. Courts - "Clark County Council again makes budget cuts: Courts, clerk say they might not be able to operate later in the year"

Here is the story from the Jeffersonville News & Tribune, reported by Braden Lammers. Here is the section on the courts:

For the county’s courts, the cuts were consistent, but likely ill-advised across the board.

“Certainly for the courts, it looks like our budgets have been cut by 50 percent or more,” said Clark County Superior Court No. 1 Judge Vicki Carmichael. “I can assure the council that’s not enough to run our courts and would ask you, as we are required under Indiana trial rules, to reinstate our 2010 budget ... and ask you to reconsider on behalf of the courts.”

Clark County Superior Court No. 3 Judge Joseph Weber and Circuit Court Judge Dan Moore, in attendance at Monday’s meeting, joined in supporting Carmichael’s comments. When the council cut the courts’ budgets in 2010, Clark County Superior Court No. 2 Judge Jerry Jacobi mandated the council match what was funded for the court in the previous year. The council has been forced to supplement Jacobi’s budget.

When asked if the council was concerned that the county’s other judges would issue mandates to recover some of the funding, Vissing said, “yes.”

“Our backs are against the wall and we really have no choice,” he said.

While the council is likely facing several mandates, Vissing did say the cuts made to the courts budgets don’t equal a 50 percent reduction from the previous year because additional appropriations made to the courts during 2010 were added to the total used for 2011’s budget process.

“We reinstated a lot of their funding at the end of last year,” he said.

Posted by Marcia Oddi on Tuesday, March 15, 2011
Posted to Indiana Courts

Ind. Law - "State says Notre Dame to blame in accident leading to Sullivan's death"

Josh Weinhold of the Elkhart Truth has the story here. It begins:

INDIANAPOLIS — The University of Notre Dame was hit with $77,500 in fines today by the Indiana Department of Labor, for six workplace safety violations related to the death of student Declan Sullivan.

State investigators determined the university “knowingly exposed its employees to unsafe conditions,” by having student videographers standing on scissor lifts raised 38 feet in the air during periods of high wind.

This knowing violation, classified as serious, carried a penalty of $55,000.

For background, begin with this ILB entry from Nov. 6, 2010.

[More] The Indy Star has the AP story.

Posted by Marcia Oddi on Tuesday, March 15, 2011
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Grange Mutual Casualty, et al. v. West Bend Mutual Ins., et al. , a 12-page, 2-1 opinion, Judge Friedlander concludes:

The policies at issue have similar other insurance clauses that provide for contribution by equal shares between primary insurers, such as here. “Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first.” On remand, therefore, the trial court is directed to apportion damages accordingly.

Judgment affirmed in part, reversed in part, and remanded.

MATHIAS, J., concurs.
MAY, J., dissents with separate opinion. [which begins at p.10 of 12, and includes] I agree with the majority on all three counts. But the majority then reaches a conclusion I find inconsistent with that analysis, and I must therefore respectfully dissent.

After explicitly holding the West Bend policy covers all damages that flowed from the original damage, including the extensive flood damage, the majority then says the Grange policy also “cover[s] the flood damage at issue”, and instructs the trial court on remand to “apportion damages accordingly.”

There is nothing to “apportion.” The majority is correct that the West Bend policy covers “all damages,” and I would accordingly decline to hold there could be damages in addition to “all damages” or that any such additional damages could be assigned on remand to Grange.

My conclusion the Grange policy is not implicated is consistent with the Parr decision on which the majority relies.

Jason W. Hall v. State of Indiana - "Hall has not established an abuse of the trial court's sentencing discretion, nor has he demonstrated that his sentence is inappropriate. Finally, Hall was not denied credit time to which he was entitled. Affirmed."

NFP civil opinions today (4):

Lovetha Smitherman v. Kroger Limited Partnership I, et al. (NFP)

Susan Ricketts v. Subaru of Indiana Automotive (NFP)

L.M. v. B.S., et al. (NFP)

Term. of the Parent-Child Rel. of S.H.; R.H. v. I.D.C.S. (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, March 15, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Debra L. Walker v. David M. Pullen, a 7-page, 5-0 opinion, Chief Justice Shepard writes:

David Pullen sought damages for injuries he suffered when Debra Walker hit him from behind in a restaurant drive-through lane. After winning a jury verdict, Pullen sought a new trial asserting that the amount of damages awarded was against the weight of the evidence. The trial court granted the motion, but its findings of fact under Trial Rule 59(J) were not sufficient to demonstrate why the jury verdict should be cast aside. We reverse and remand with instructions to reinstate the jury’s verdict. * * *

[ILB: The last section of the opinion is headed "Treading Carefully as the Thirteenth Juror." In the standard of review section, the opinion states that a decision to grant a new trial is often called "acting as the thirteen juror."]

In this case, the trial court granted a new trial because it believed the verdict did not accord with the evidence. It did not state whether the verdict was against the weight of the evidence or clearly erroneous. The court made only general findings and not the special findings required by Rule 59(J).

This case provides a prime example of why special findings are required when the judge acts as the thirteenth juror. Pullen claimed a total of $25,019.50 in damages for medical bills—$12,520 for treatment in 2004 and $12,499.50 for treatment in 2007 and 2008. The jury apparently did not agree that Walker’s negligence required all of those treatments and awarded Pullen $10,070 "for P.T. & inital [sic] medical assessment." (App. at 8.) By our count, Pullen’s expenses for physical therapy, appointments with his regular physician, and the initial x-rays following his first appointment were $10,064. After hearing all the testimony, the jury may apparently have believed these damages were the result of Walker’s negligence, and believed Walker’s medical expert that the remainder of the expenses were either unnecessary or unrelated.

The court’s statement that the evidence was "undisputed" is not a sufficient special finding to justify supplanting the jury’s verdict. The trial court’s findings do not suggest that this was an unjust result.

We reverse and remand with direction to reinstate the jury verdict.

Sullivan, Rucker, and David, JJ., concur.

Dickson J., concurs in result with separate opinion. [that concludes, at p. 7 of 7] The omission of any award for general damages undermines my confidence in the justness of the verdict.

I agree with the majority, however, that the trial court’s order granting a new trial was not compliant with the specificity requirements of Indiana Trial Rule 59(J). For this reason, I agree that the order granting a new trial must be reversed and the jury verdict reinstated.

Posted by Marcia Oddi on Tuesday, March 15, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Indiana county hires law firm to keep track of plant"

The county is Knox, the law firm is Ice Miller. The brief AP version of the story is everywhere today.

The source is said to be the Vincennes Sun Commercial, but the story is not list on the site's front page and all the paper's stories are behind a $$$ firewall.

Here is the AP version. The third paragraph of the story does not really make sense to me. Also, I'd like to know more about Sun Commercial's statement that the Indianapolis law firm "will work with an accountant to review documents related to the bond sale to make sure Knox County is protected from any financial risk." Surely there is more information in the original version of the story.

Posted by Marcia Oddi on Tuesday, March 15, 2011
Posted to Indiana Government

Law - "The 2012 U.S. News Law School Rankings Are Out"

Above the Law has a detailed overview this morning of the newest U.S.News rankings.

IU Mauer is #23, tied with Notre Dame; IU Indianapolis is #79.

From 2010
: Notre Dame is ranked 22, IU-Mauer is 27, IU-Indy is 86

Posted by Marcia Oddi on Tuesday, March 15, 2011
Posted to General Law Related

Monday, March 14, 2011

Ind. Decisions - Still more on: David Camm motion filed with Court of Appeals

The ILB reported at noon time that "The Court of Appeals accepted jurisdiction over the Camm interlocutory appeal on Friday."

Harold J. Adams of the Louisville Courier Journal is reporting the story this evening, under the heading "Appeals court agrees to hear David Camm's motion on prosecutor in murder case." Some quotes from the thorough report:

The appeals court agreed Friday to consider whether Floyd County Prosecutor Keith Henderson should be removed from the case because he signed a now-aborted deal to write a book about the case.

Special Judge Jonathan Dartt of Spencer Circuit Court previously rejected the motion by Camm’s defense team to disqualify Henderson based on what they say is a conflict of interest. * * *

In his January ruling, Dartt said that while he heard evidence that the book contract “could” affect how Henderson handles the case, he found no evidence of an “actual” conflict of interest.

The appeals court action means there will be no further movement toward a third trial until that the court decides whether Henderson must be replaced.

Richard Kammen, one of Camm’s attorneys, said the appeals court decision is an important development “in that the propriety of what Mr. Henderson has done will certainly be continued to be fleshed out.” * * *

The defense asks in its motion whether state law requires removal of a prosecutor “who created a financial interest in one of his cases by hiring an agent to pursue for him a book deal about the case while the case was pending at the trial level and entering into a contract to write the book while the case was pending on appeal.” * * *

Camm is being held without bond at the Pendleton Correctional Facility.

Kammen said there are “no plans at this point” to request Camm’s release on bond.

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to Indiana Decisions

Not Law - More about NCAA picks than you'll probably want to know!

Nate Silver of the NY Times column FiveThirtyEight (The blog "is devoted to rigorous analysis of politics, polling, public affairs, sports, science and culture, largely through statistical means"), delves at great length into making NCAA picks. Fortunately, he gives both a "short version" and a "detailed version."

He also gives his own picks. The Ohio State to take it all. But he has Purdue staying in until the Round of Eight, when it loses to Kansas -- after having bested Notre Dame in the Sweet Sixteen. He has Butler losing to Pitt (which goes on to the Final Four, where it is beaten by Kansas) in Game Two.

[More] Read or listen to "Looking At March Madness Bracketology," from NPR's Mike Pesca.

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to General News

Ind. Gov't. - "Evan Bayh hired as Fox News contributor"

Fox News "announced Monday they have signed Bayh to become a contributor to the network. Bayh will be a commentator and political analyst across all of Fox News' platforms." Bayh headed Hillary Clinton support in Indiana during the presidential primary races; then, some say, was in a contest with Joe Biden for the vice-presidential spot.

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Phillip Forman, et al. v. Western Reserve Mutual Casualty Company, et al., a 6-page opinion, Judge Baker writes:

Appellants-third-party-defendants Wayne Penn, Lisa Orr, and Bradley Orr (collectively, the Appellants) argue on rehearing that the trial court erroneously granted summary judgment in favor of appellee-third-party-plaintiff Western Reserve Mutual Casualty Company (Western Reserve). Specifically, the Appellants contend that the trial court erred by concluding as a matter of law that Western Reserve does not have a duty to defend them from the lawsuit filed against them by Phillip Forman. Finding no error, we affirm. * * *

We sympathize with the Appellants’ argument that they are entirely innocent of any connection between Forman and his decision to steal and consume Lisa’s methadone. We acknowledge that the Appellants justifiably believe that Western Reserve should defend them under these circumstances. Unfortunately for the Appellants, the language of the policy is clear and unambiguous that Forman’s injury, which arose out of his illicit use of a controlled substance, is excluded from liability coverage. Consequently, the trial court properly entered summary judgment in Western Reserve’s favor on the issue of its duty to defend the Appellants.

NFP civil opinions today (3):

Term. of Parent-Child Rel. of C.D. and K.D.; R.D. v. IDCS (NFP)

City of Peru, et al. v. Matthew and Tracy Lewis (NFP)

Teri and Robert Steinborn v. LaPorte County Board of Zoning Appeals, et al. (NFP)

NFP criminal opinions today (4):

James Larkin v. State of Indiana (NFP)

Donald King v. State of Indiana (NFP)

Terry Lee Krzeminski v. State of Indiana (NFP)

Sonya Barger v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - Bill would permit voluntary fire departments to recover attorney fees and costs, in addition to costs of response, for reponses and cleanups

Here are snippets of three worth reviewing ILB entries:

Indiana must be among the states that continues to allow fire departments to bill home and vehicle owners for emergency responses, because this bill, HB 1365, which has already passed the House, is being heard in Senate Committee tomorrow morning. Here is the current text of the bill.

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to Indiana Law

Law - New U.S. FOIA site

Named FOIA.gov. Much data!

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to General Law Related

Ind. Decisions - More on: David Camm motion filed with Court of Appeals

Updating this ILB entry from Feb. 14, 2011, on a motion for interlocutory appeal (docketed as Case Number: 87 A 01 - 1102 - CR - 00025) on the question of whether Floyd County Prosecutor Keith Henderson, who signed a book contract to write about the second conviction, should be replaced by a special prosecutor --

The Court of Appeals accepted jurisdiction over the Camm interlocutory appeal on Friday:





(ORDER REC'D. 3/11/11 AT 11:30 A.M.) ENTERED 3/11/11 KM

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to Indiana Decisions

Ind. Decisions - Two (make that three) Indiana opinions today from 7th Circuit

In U.S. v. McBride (ND Ind., Springmann), an 8-page opinion, Judge Sykes writes:

Following a routine traffic stop, a consent search of Willie McBride’s car turned up crack cocaine, marijuana, and a loaded handgun. An indictment followed, and McBride was charged with possession of controlled substances with intent to distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm during and in relation to a drug-trafficking crime, 18 U.S.C. § 924(c). McBride moved to suppress the evidence recovered from his car on the ground that the officer who performed the search obtained his consent only after unreasonably prolonging the traffic stop. The district court conducted an evidentiary hearing and denied the motion. McBride then pleaded guilty to both counts, reserving the right to challenge the suppression ruling on appeal, and the court sentenced him to consecutive 60-month terms. The only question presented by this appeal is whether the police officer violated McBride’s rights under the Fourth Amendment— thus vitiating his consent to search—by detaining him beyond the time needed to complete the traffic stop. We conclude that he did not and affirm the judgment.
In In re Davis (SD Ind., Magnus-Stinson), a 10-page opinion, Judge Flaum writes:
In 2007, Linda Reeves obtained a money judgment against Gerald Davis in Indiana state court for a violation of the Indiana Home Improvement Contracts Act (“the Act”), Ind. Code (“IC”) §§ 24-5- 11-1 et seq. The Indiana Code provides that a home improvement supplier who violates the Act “commits a deceptive act.” IC § 24-5-11-14.

Davis filed for bankruptcy on October 25, 2007, before satisfying the Indiana state court judgment. As part of the bankruptcy proceedings, Reeves filed an adversary action against Davis, seeking to have the $77,000 judgment declared non-dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). Based on the Indiana court’s finding that Davis had committed a “deceptive act,” Reeves alleged that Davis had engaged in fraudulent conduct. The bankruptcy court determined that the debt was dischargeable, finding that Davis lacked the requisite intent to deceive or defraud. On appeal, the district court affirmed, as do we, for the reasons set forth below.

In Joseph v. Elan Motorsports (SD Ind., McMinney), an 11-page opinion, Judge Posner writes:

[T]he decision of the district court must be reversed with directions to allow the amended complaint, substituting Elan Inc. as defendant with relation back to the date of the original complaint.

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to Ind. (7th Cir.) Decisions

Law - "Brady, Manning, Brees Take Super Bowl Wins to Court Against NFL"

This long story today in Bloomberg News, quotes Gary Roberts, dean of the Indiana University School of Law in Indianapolis several times.

See also this Above the Law post, headed "U.S. District Court Judge David S. Doty: The Man Who Holds Football By The Balls."

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to General Law Related

Ind. Gov't. - Secretary of state appoints replacement for top deputy [Updated]

So reports this story posted on the Indy Star this morning. A quote:

Election law attorney Jerold "Jerry" Bonnet has been appointed deputy secretary of state, filling the position vacated Friday by Sean Keefer, according to a news release today from Jason Thomas, spokesman for the secretary of state's office.
Watch for more.

And here it is, as reported by the Star's Robert Annis at 11:47 am:

Following the sudden resignation of the top deputy of embattled Indiana Secretary of State Charlie White, his office today announced a new second-in-command.

Shortly after that announcement, the office's spokesman today resigned. Communications Director Jason Thomas resigned to “pursue other career opportunities,” he confirmed in an e-mail.

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to Indiana Government

Ind. Gov't. - "State Auditor Tim Berry Announces Enhancements To State Transparency Portal"

One of the new tools now part of the Indiana Transparency Portal is an expenditure search tool. This tool allows users to view payment information for goods, services and program disbursements by State Agencies, providing users with current and historical expenditure information.

For example, select Expenditures Detail and the Fiscal Year (2010 or 2011 - I'd guess FY 2011 means from July 1, 2010-June 30, 2011), plus an agency, such as "Senate," "Supreme Court," "Secretary of "State," "IDEM," etc., click "Go," and you immediately will see a list of all the expenditures for the period.

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to Indiana Government

Ind. Law - "Dubious ‘lawsuit lending’"

That is the headline to a Fort Wayne Journal Gazette editorial today. Here are some quotes:

In lawsuit lending, a company advances money to someone filing suit, often a personal injury claim. In exchange, it receives a large part of whatever money the plaintiff recovers through a verdict or, more often, settlement. If the plaintiff recovers nothing, no money has to be repaid. But the company lending the money recoups money by charging “fees,” which sound suspiciously like interest rates.

The Indiana Code now has no language allowing or prohibiting the practice. Opponents say the bill seemingly offers consumer protections regarding the practice but in fact would give lawsuit lending specific approval in Indiana Code.

As for protecting consumers, the bill specifically states that such advances are not “loans” – and therefore not subject to state limits on interest rates. Insurance industry opponents say fees can be as much as 15 percent a month, and some plaintiffs have had to repay 250 percent of the advance. * * *

While it seems unlikely that Indiana’s conservative legislature would approve of a bill that has great potential to encourage more lawsuits, the Senate passed the proposal 36-14. Notably, Senate President Pro Tem David Long, himself a lawyer, voted against it.

The sponsor of Senate Bill 97, Sen. Randy Head, R-Logansport, frankly acknowledged to the New York Times that the bill mirrors the language sought by Oasis Legal Finance in Illinois, considered a major lawsuit lender. The Times reported that Oasis is seeking the legislation in Indiana and other states. “Most of what they proposed is contained in the bill,” he said.

Wood said the insurance institute believes that while the Indiana Code is silent on the practice, established case law has set precedents that make lawsuit lending questionable at best. Indeed, the Indiana Supreme Court has ruled that plaintiffs cannot assign possible proceeds from a personal injury lawsuit to a third party. In one case, the court ruled case law does not “allow clients to sell off their claims for pursuit by others.”

This bill flew through the Senate under the radar.

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to Indiana Law

Courts - "Supreme Night Court: Judges Relax By Trying the Fictitious and the Dead"

Jess Bravin of the WSJournal has an interesting story today about the mock trials many of the justices participate in. A quote:

Several justices say the faux trials, which often raise money for causes like the Supreme Court Historical Society and Washington's Shakespeare Theatre Company, provide a convenient excuse for pleasure reading.

"When you're reading all these briefs," says Justice Ginsburg, pointing at a stack of legal filings in her chambers, "it's nice to take time off and read something great or delightful."

The mock cases often are argued by experienced advocates, such as former Whitewater prosecutor Kenneth Starr, and some panels include lower court judges, too.

[More] But "Judge Posner Dissents on Mock Trials," is the heading to a post today at the WSJ Washington Wire blog.

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to Courts in general

Ind. Gov't. - "Mitch Daniels: Candidate or influencer?"

Chris Cillizza and Aaron Blake have this post on the Washington Post's "Morning Fix." A sample:

Looking back at Daniels’ recent public comments — and, he has made quite a few — it seems he is more interested in impacting the debate going on in the party as it heads into 2012 than in leading the GOP as its presidential nominee.

Daniels’ speech last month at the Conservative Political Action Conference in Washington, D.C. was heavy on dire talk about the state of the economy and light on the sort of red-meat rhetoric that the activist base of the party loves.

The speech won kudos from the media as well as conservative thinkers like columnist George F. Will. But those two groups are not exactly the strong foundation on which Republican presidential primary fights are won.

Ditto for Daniels’ now famous (or infamous) call for a “truce” on social issues until the economic turmoil in the country has passed. (Daniels made the comments in a profile piece by the Weekly Standard.)

Rather than backing down amid the hubbub the remarks caused among social conservatives, Daniels effectively doubled down — reiterating his belief in the need to put economic issues above all others in a series of recent interviews.

Posted by Marcia Oddi on Monday, March 14, 2011
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending March 11, 2011

Here is the Clerk's transfer list for the week ending March 11, 2011. It is two pages (and 20 cases) long.

Four transfers, including one with remand, were granted for the week ending March 11:


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, March 14, 2011
Posted to Indiana Transfer Lists

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

Here is the answer to "What did you miss over the weekend from the ILB?"

From Sunday, March 13, 2011:

From Saturday, March 12, 2011:

From late Friday afternoon, March 11, 2011:

Posted by Marcia Oddi on Monday, March 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 3/14/11):

Thursday, March 17th

Next week's oral arguments before the Supreme Court (week of 3/21/11):

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 3/14/11):

Wednesday, March 16th

Thursday, March 17th

Next week's oral arguments before the Court of Appeals (week of 3/21/11):

Tuesday, March 22nd

Thursday, March 24th

Friday, March 25th

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, March 14, 2011
Posted to Upcoming Oral Arguments

Sunday, March 13, 2011

Courts - "Judges Resist Plan to Unify Court system"

Here is the interesting story in the March 12, 2011 NY Times. Some quotes:

The troubles plaguing the project, which is formally known as the California Court Management System, are also threatening to undo the considerable political gains that Chief Justice George won for the courts before he retired in January.

Court unification was the centerpiece of his 14 years as chief justice; he pushed legislation that centralized court financing with the Administrative Office of the Courts and largely eliminated county control over local court budgets. Those moves ensured steady financing statewide.

But many trial judges and court workers throughout the state are now in open revolt over the management system.

“The idea of having all of the courts connected through a case-management system is appealing in the abstract — all of us favor the concept,” said Steve White, presiding judge of Sacramento County Superior Court, which uses the new computer system. “But that has turned into an ill-conceived, mismanaged and failed experiment. It simply has not worked.”

Here is a more detailed story from Paul Elias of the AP.

Here is the summary of the California State Auditor's Feb. 8, 2011 report on the California Administratyive Office of the Courts' statewide case management process. A quote:

[I]n response to our survey of the 51 superior courts that do not use an interim system, 18 superior courts said that their existing case management systems are currently meeting all of their needs. In replying to another question, 32 of the 51 superior courts reported that their existing systems will serve them for the foreseeable future.

Posted by Marcia Oddi on Sunday, March 13, 2011
Posted to Courts in general

Ind. Gov't. - Taxing Amazon purchases cost Illinois $$$ [Updated]

So reports Investor's Business Daily in a March 11th story headed "Illinois' Illogical Internet Tax." According to the story, Amazon must have a physical presence in a state in order to be taxed. Amazon has no physical presence in Illinois but does have (as it does in Indiana) "affiliates." About 9,000 of them in Illinois. According to the IBD story, the tax will force the affiliates to neighboring states such as Indiana to which, for instance, CouponCabin.com has announced it will relocate.

[Updated 3/14/11] The NY Times this morning has a front-page story headed "Amazon Pressured on Sales Tax," reported by Verne G. Kopytoff. A quote:

A state can compel companies to collect taxes only if they have a physical presence in the state, or a nexus, as the Supreme Court ruled in Quill Corporation v. North Dakota in 1992. Absent a nexus, online retailers and mail-order companies can sell products without collecting the tax.

What many people fail to realize, however, is that the tax is still due. Residents are supposed to self-report what they owe in their annual state tax filing, but most people do not.

State officials have long lamented the shortfall and sought ways to collect a bigger portion by using a mix of education and threats. California, for instance, expects to be shortchanged $1.15 billion in 2010 from e-commerce and catalog sales, according to estimates from the state Board of Equalization.

The only way to close that gap is for online retailers and others to start collecting sales tax, said Betty T. Yee, a member of California’s Board of Equalization.

Posted by Marcia Oddi on Sunday, March 13, 2011
Posted to Indiana Government

Ind. Gov't. - Some noteworthy stories today on walkout

Eric Bradner's Sunday column at Evansville Courier & Press: "Republicans can find ways to move forward."

Matt Tully's column today in the Indianapolis Star: "For a fighter, this is a match made in heaven."

Niki Kelly's story today in the Fort Wayne Journal Gazette: "Police power doubted in walkout."

[More] From an editorial by Karen Francisco in today FWJG:

But there are two items of business that must be done, beginning with a biennial budget. The current spending plan runs out June 30.

The House Ways and Means Committee completed its public hearings on the budget well before the walkout. With few dollars to fight over, budget discussions so far have been unusually peaceful. And the final document requires virtually no participation from lawmakers overall.

“When it really gets down to it – the last 10 days of the session – four people really finalize the budget,” said Rep. Win Moses, a 10-term Democrat from Fort Wayne.

Conference committees comprised of four people – usually a Republican and Democrat from both the House and Senate – often draft final language for bills.

Redistricting is the second task at hand, required as a result of the decennial census. With majorities in both the House and Senate, Republicans will control the process regardless of when it happens. Julia Vaughn of Common Cause, who is working with a statewide organization to include public suggestions in redistricting (see Page 14A), said the General Assembly must approve congressional maps by session’s end, but said there’s no requirement to finish the legislative maps by the April 29 deadline.

“What we hope they do is just concentrate on the congressional districts, then spend the summer engaging Indiana voters in the process of drawing legislative districts, talking about communities of interest, and then come back on Organization Day in November and introduce a bill,” she said. “They could have (maps approved) by the second, third week of the session next year and plenty of time for candidates to file before May.

“If they are serious about doing this right, what’s the rush?” she asked.

Posted by Marcia Oddi on Sunday, March 13, 2011
Posted to Indiana Government

Ind. Gov't. - Mitch Daniels at last night's Gridiron Dinner

From Mike Allen's POLITICO Playbook:

THE REPUBLICAN SPEAKER - INDIANA GOV. MITCH DANIELS: "I bring greetings from my beloved Indiana - a land of surprises where, as we say, South Bend is in the north, North Vernon's in the south, and French Lick is not what you hoped it was. ... [T]oday's bloggers are walking in the shoes of the giants of journalism. They're today's Edward R. Murrows. That is, if Edward R. Murrow had gone to work in his pajamas and hadn't talked to a woman in 30 years. ... I have to admit, all this favorable press I've been getting, ... it's hard not to let it go to your head. Just listen to a quick sample: 'small, stiff, short, pale, unimposing, unassuming, uninspiring, understated, uncharismatic, accountant-like, non-telegenic, boring, balding, blunt, nerdy, wooden, wonky, puny, and pint-sized.' Really, it all points to one inescapable conclusion: It's destiny."

Posted by Marcia Oddi on Sunday, March 13, 2011
Posted to Indiana Government

Saturday, March 12, 2011

Environment - "Unregulated Factory Farm Air Pollution at Some Sites Now Dirtier than America's Most Polluted Cities" [Updated]

Some may remember this ILB entry from Jan. 31, 2006, quoting a NYT story that began:

WASHINGTON, Jan. 30 (AP) — The Bush administration will exempt thousands of farms that raise poultry, cattle and hogs from heavy fines for fouling the air and water with animal excrement in exchange for data to help curb future pollution.
What, the data has now been analyzed, according to this release from EIN Presswire. The long statement (which links to the actual report) begins:
WASHINGTON, March 9, 2011 /PRNewswire-USNewswire/ -- New federal and industry data show that the air at some factory farm test sites in the U.S. is dirtier than in America's most polluted cities and exposes workers to concentrations of pollutants far above occupational safety guidelines, according to a new report from the Environmental Integrity Project (EIP). While the measurements were taken onsite at factory farms, the pollution levels are high enough to suggest that those living near these massive livestock operations also may be at risk. Estimated emission levels for some pollutants were higher at some test sites than amounts reported by large industrial plants.

In outlining needed action steps, the EIP report concludes that the problem is sufficiently grave that it should lead to the overturning of a 2008 Bush Administration "backroom deal" that gave concentrated animal feeding operations (CAFOs) amnesty from federal pollution reporting rules.

The new EIP report states: "Five years ago, EPA suspended enforcement of air pollution laws against CAFOs until the study was complete, and in 2008, EPA exempted CAFOs from most pollution reporting requirements altogether. But the study shows that many CAFOs pollute in quantities large enough to trigger emission reporting laws that have applied to most other large industries for decades, and that Clean Air Act protections may be warranted to protect rural citizens … [The new] research confirms that the large CAFOs, or factory farms, that dominate the nation's meat industry are major sources of ammonia emissions and other dangerous air pollutants." * * *

With industry support and funding, Purdue University conducted the two years of air quality monitoring at 15 livestock confinement sites, 9 livestock waste lagoons, and a dairy corral in nine states, measuring background concentrations and emissions of ammonia, hydrogen sulfide, particulates, and volatile organic compounds (VOCs). EPA approved Purdue's methods and supervised the study.

In January, Purdue presented the results to EPA as a series of summary reports and data sets that EPA made available to the public without further analysis.

The Environmental Integrity Project analyzed these initial reports, comparing CAFO air pollution with established health standards and emissions reporting rules to assess the need for increased public health protections from factory farm emissions.

For background on Purdue's involvement, start here with a June 19, 2009 story by Angela Mapes Turner of the Fort Wayne Journal Gazette. A Purdue CAFO site does not appear to have been updated since Oct. 25, 2007.

See this Sept. 24, 2008 entry on a U.S. Government Accountability Office report.

And again, see this Jan. 31, 2006 ILB entry headed "Deal Eases Fines for Farms That Pollute; What this Means for Indiana," and its links, detailing the "[exemption of] thousands of farms that raise poultry, cattle and hogs from heavy fines for fouling the air and water with animal excrement in exchange for data to help curb future pollution."

Posted by Marcia Oddi on Saturday, March 12, 2011
Posted to Environment

Law - "School of Glock"

From a March 9, 2011 op-ed column in the NY Times, authored by Gail Collins, a snippet:

The nation’s state legislators seem to be troubled by a shortage of things they can do to make the National Rifle Association happy. Once you’ve voted to allow people to carry guns into bars (Georgia), eliminated the need for getting a permit to carry a concealed weapon (Arizona) and designated your own official state gun (Utah — awaiting the governor’s signature), it gets hard to come up with new ideas.

This may be why so many states are now considering laws that would prohibit colleges and universities from barring guns on campus.

“It’s about people having the right to personal protection,” said Daniel Crocker, the southwest regional director for Students for Concealed Carry on Campus.

Posted by Marcia Oddi on Saturday, March 12, 2011
Posted to General Law Related

Ind. Gov't. - "Democrats have little hope of undoing laws the GOP majority passes this year. That makes them scared and maybe even a little desperate"

That is a quote from a great weekend column headed "Democrats fear laws they can't repeal" by Lesley Stedman Weidenbener of the Louisville Courier Journal. Read it here. Another quote:

Before Daniels’ election, it had been 16 years since Republicans controlled the legislative and executive branches. That last occurred during the late Gov. Bob Orr’s second term, which ended in 1988.

But Democrats haven’t enjoyed such power since they won the governor’s office and the majorities in the General Assembly in 1964, a landslide year for the party nationally. And frankly, Democrats don’t have much hope of regaining such total control again anytime soon.

Posted by Marcia Oddi on Saturday, March 12, 2011
Posted to Indiana Government

Law - "Does Anybody Really Know What Time It Is?"

Great op-ed March 11th in the NY Times by Howard Mansfield, author of “Turn and Jump: How Time and Place Fell Apart.” A sample:

To eliminate the confusion, railroads took it upon themselves in 1883 to divide the country into four time zones, with one standard time within each zone. To resist could mean economic isolation, so at noon on Nov. 18, 1883, Chicagoans had to move their clocks back 9 minutes and 32 seconds. It’s as if the railroads had commanded the sun to stand still, The Chicago Tribune wrote. Louisville was set back almost 18 minutes, and The Louisville Courier-Journal called the change a “compulsory lie.” In a letter to the editor, a reader demanded to know “if anyone has the authority and right to change the city time without the consent of the people?” In an 1884 referendum, three-quarters of voters in Bangor, Me., opposed the 25-minute change to “Philadelphia time.”

One sees the same annoyance with the “compulsory lie” of daylight saving time. When it was being debated in 1916, The Literary Digest saw it as a trick to make “people get up earlier by telling them it is later than it really is.” The Saturday Evening Post asked, in jest, “why not ‘save summer’ by having June begin at the end of February?” And an Arkansas congressman lampooned the time reformers by proposing that we change our thermometers: move the freezing point up 13 degrees and a lot of folks could be tricked into burning less fuel to heat their houses.

Posted by Marcia Oddi on Saturday, March 12, 2011
Posted to General Law Related

Ind. Gov't. - "Five Indy mayors look back -- and into city's future"

"Five Mayors: An Evening of Insight and Vision," was a "one of a kind event, featuring Indianapolis Mayor Greg Ballard and former mayors Richard Lugar, William Hudnut, Stephen Goldsmith and Bart Peterson, was an event that occurred last evening, "sponsored by the University of Indianapolis, the Greater Indianapolis Chamber of Commerce and Star Media, which includes The Indianapolis Star." You may watch it here.

The Star's Jon Murray's story on the event, headed "5 mayors look back -- and into city's future: At public forum, they discuss schools, economy, diversity," is here.

Posted by Marcia Oddi on Saturday, March 12, 2011
Posted to Indiana Government

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

Updating this ILB entry from Jan. 26, 2011, Rebecca S. Green has this story today in the Fort Wayne Journal Gazette detailing the airport's response to the lawsuit filed earlier this year alleging the airport's rules restricting handouts are unconstitutional:

The rules were adopted in mid-November, after concerns were raised about a group trying to pass pamphlets through the gates over the conveyor belts in the baggage claim area.

The rules limit “expressive activity” to a small area outside the terminal and require a permit be obtained before any protest or leafleting occurs, according to court documents.

Airport attorneys said Stanton has no standing to bring his lawsuit because he had never tried to conduct “free speech activity” before the rules were enacted, nor did he try to apply for a permit to conduct the “free speech activity” after the rules were enacted, according to court documents. Nor did Stanton ever object or dispute the provisions of the rules prior to bringing the lawsuit, according to court documents.

The Airport Authority asks the matter be resolved by a jury trial, something Stanton’s ACLU of Indiana attorney opposes on the grounds that the issue should be resolved by a judicial ruling, according to court documents.

Posted by Marcia Oddi on Saturday, March 12, 2011
Posted to Indiana Courts

Law - "A Legal Privilege That Some Lawmakers See Broadly"

Article 4, Sec. 8 of the Indiana Constitution includes this language:

Section 8. Senators and Representatives, in all cases except treason, felony, and breach of the peace, shall be privileged from arrest, during the session of the General Assembly, and in going to and returning from the same; and shall not be subject to any civil process, during the session of the General Assembly, nor during the fifteen days next before the commencement thereof.
[Link to the ILB's searchable version of the Indiana Constitution here.]

Many other state constitutions contain similar language. Yesterday Marc Lacey had this long story in the NY Times. The story begins:

PHOENIX — The majority leader of the Arizona State Senate scuffled with his girlfriend during an argument on the side of the road late one night recently. He hit her and she hit him, according to the police, but the two suffered dramatically different fates.

The majority leader, Scott Bundgaard, told Phoenix police officers that he was a state senator, and he cited a provision of the Arizona Constitution that gives lawmakers limited immunity from arrest, the police said. Police Department lawyers were consulted, and they ordered that Mr. Bundgaard be uncuffed and released.

Aubry Ballard, Mr. Bundgaard’s girlfriend of about eight months, on the other hand, was arrested for domestic violence and spent the night in jail.

Just how protected lawmakers should be from prosecution is an issue that many states grapple with, said Steven F. Huefner, a law professor at Ohio State University who studies the issue.

He said the privilege, which is included in the United States Constitution and in many state constitutions, was designed to protect lawmakers from civil matters that would interfere with their legislative duties. “The legislative privilege should not become a get-out-of-jail-free card or escape-from-ever-being-put-in-jail card for state legislators,” he said during a presentation on the issue during the National Conference of State Legislators Summit last year.

Posted by Marcia Oddi on Saturday, March 12, 2011
Posted to General Law Related

Ind. Courts - "Noble courthouse bans cell phones"

Rebecca S. Green reports in the Fort Wayne Journal Gazette:

Noble County Sheriff Doug Harp has banned cell phones from the county courthouse, citing security concerns.

In a statement issued Thursday, Harp said cell phones present too great an opportunity for those inclined to do so to smuggle in contraband, explosives or other items. * * *

Allen County banned cell phones and other devices from its central courthouse and other judicial buildings a few years ago.

The U.S. District Courthouse and E. Ross Federal Building in Fort Wayne allows cell phones in the building, but they must be surrendered at the security station.

“It’s something we had overlooked and we shouldn’t have,” Harp said. “It probably should have been done a long time ago.”

The decision to ban cell phones carried by all not employed by the county, attorneys or court officials grew out of a discussion by one of the judges and a courthouse security officer, Harp said.

The ban is effective immediately, Harp said.

Posted by Marcia Oddi on Saturday, March 12, 2011
Posted to Indiana Courts

Friday, March 11, 2011

Ind. Gov't. - More on: Charlie White gives 13-minute interview to Fox News

Updating this entry from earlier this afternoon; the Indianapolis Star coverage of the 13-minute "exchange with reporters" notes that:

At one point as White continued talking to reporters, he drew an sharp rebuke from his visibly angry defense lawyer, Dennis Zahn, who told him to stop talking and physically led him away from the impromptu news conference.
[Updated on 3/12/11] Here is today's story from the Star. Here is Charles Wilson's AP story.

In addition, there are some indications White's two top staffers may resign Monday morning.

[Updated] This Star story by Melanie D. Hayes now reports:

Sean Keefer, second-in-command under embattled Secretary of State Charlie White, has resigned, a White spokesman confirmed today.

Posted by Marcia Oddi on Friday, March 11, 2011
Posted to Indiana Government

Law - "NFL Labor Talks Collapse, Union Decertifies"

The headline to a 5:25 pm WSJ story.

The Indy Star has posted this AP story.

Posted by Marcia Oddi on Friday, March 11, 2011
Posted to General Law Related

Ind. Gov't. - Watch "Indiana Lawmakers" tonight re redistrcting

In this week's episode of Indiana Lawmakers with Jon Schwantes looks at redistricting and I'm told it is the strongest show of the season. It first is screened here in Indy tonight at 7:30 on Ch. 20. Michael Pitts, IU School of Law-Indianapolis professor, is on the panel; redistricting is one of his areas of expertise.

Posted by Marcia Oddi on Friday, March 11, 2011
Posted to Indiana Government

Courts - "Blogger Jailed; Allegedly Threatened Dearborn Ohio Judge"

Eagle Country News 93.3 FM, covering SE Ind., N. Ky. add SW Ohio, reports today that a Norwood, Ohio man is in jail in Dearborn County, Ohio, accused of Intimidating public officials through the web. More from the beginning of the story:

(Lawrenceburg, Ind.) - Daniel Brewington, 37, runs a blog titled Dan’s Adventures in Taking on the Family Courts and website www.DanHelpsKids.com detailing his experience to earn custody of his children in Dearborn Circuit Court.

Those postings led to Brewington being indicted Wednesday, March 2 in Dearborn Superior Court II for two counts of Intimidation (Class A Misdemeanor) and single counts of Intimidation of a Judge (Class D Felony), Attempt to Commit Obstruction of Justice (Class D Felony), and Perjury (Class D Felony).

A bench warrant was issued for Brewington’s arrest Monday which included an additional count of Unlawful Disclosure of Grand Jury Proceedings (Class B Misdemeanor). He was arrested at his home in Cincinnati the same day and later extradited to Dearborn County.

Posted by Marcia Oddi on Friday, March 11, 2011
Posted to Courts in general

Ind. Gov't. - Charlie White gives 13 minute interview to Fox News

Here is the raw video of the interview.

White says title of "chief elections officer" is an archaic title; says Secretary of State has little to do with elections, despite (White's words) Todd Rokita's marketing of the position while in office.

Posted by Marcia Oddi on Friday, March 11, 2011
Posted to Indiana Government

Ind. Courts - Applications being accepted for state public defender position

This release from Feb. 16, 2010 announced:

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."
Ms. Carpenter succeeded Harriette Bailey Conn, who was appointed Public Defender on May 1, 1970, and served until her death in 1981.

This tradition of length of service exists despite the limits of the statute, IC 33-40-1-1(b), which provides: "The state public defender shall be appointed by the supreme court, to serve at the pleasure of the court, for a term of four (4) years."

Today the Supreme Court has announced that it is accepting applications for the position of State Public Defender. See the details here.

[More] Earlier history from p. 41 of the 2009-2010 Supreme Court Annual Report:

In 1945, the General Assembly created the Public Defender of Indiana to provide services to indigent inmates seeking collateral challenge of their convictions. The first Public Defender, Frank L. Greenwald, appointed (as is the case now) by the Indiana Supreme Court pursuant to statute, served from 1945 to 1947. His successor, James Cooper, held office from 1947 to 1956 and hired the first deputies public defender – one of whom was the Honorable Richard M. Givan, later Chief Justice of the Indiana Supreme Court. Robert Baker (1957 – 1966), Mel Thornburg (1966 – 1970), and Harriette Bailey Conn (1970 – 1981) complete the roster until the 1981 appointment of the current Public Defender of Indiana, Susan K. Carpenter.

Posted by Marcia Oddi on Friday, March 11, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Molly C. Wilson v. Charles W. Wilson (NFP)

Kenneth Hawkins v. Debra Hawkins (NFP)

NFP criminal opinions today (3):

Claudia Scott v. State of Indiana (NFP)

Steven A. Ratliff v. Marlene M. (Ratliff) Bontzolakes (NFP)

Justin Looney v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 11, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "In Indiana, a case study in ending collective bargaining"

Doug Erickson of Wisconsin State Journal compares the Indiana and Wisconsin systems. Interesting. The long story begins:

As Wisconsin residents contemplate what the landscape might look like now that state workers apparently have lost most of their collective bargaining rights, another Midwestern state can offer six years of experiences.

Indiana state workers lost their collective bargaining rights in 2005. While the value to taxpayers remains debated, some outcomes are clear.

The move ushered in a period of extensive reorganization, consolidation and privatization of government services — efforts Indiana Republican Gov. Mitch Daniels has said could not have happened so quickly under union contracts.

Meanwhile, union membership plummeted. Prior to 2005, 16,408 Indiana state workers paid union dues out of about 25,000 who were eligible, or 66 percent, according to state and union figures. Today, just 1,409 out of 20,000 eligible workers, or 7 percent, pay dues.

Posted by Marcia Oddi on Friday, March 11, 2011
Posted to Indiana Government

Ind. Decisions - 7th Circuit to hear girls basketball discrimination lawsuit

Updating these earlier ILB entries that were posted under the heading "IHSAA faces Title IX lawsuit over scheduling: Former coach claims inequity in nights girls and boys basketball games are played," Pam Tharp reported yesterday in the Richmond Paladium-Item in a long, must-read story that begins:

A gender discrimination lawsuit filed against Richmond and other area schools over their scheduling of girls basketball games is headed for a federal appeals court.

The 7th U.S. Circuit Court of Appeals will decide whether a district court judge erred in granting summary judgment last year to area schools that were accused of gender discrimination because they scheduled most girls' games on weeknights and most boys' games on weekend nights.

Richmond Community Schools, Franklin County, Union County and Fayette County schools are among 14 eastern Indiana school districts listed as defendants in the 2009 lawsuit.

The lawsuit was filed by former Franklin County girls basketball coach Amber Parker on behalf of her daughter. A second plaintiff, Tammy Hurley, the mother of a Franklin County girls basketball player, was added as a plaintiff last summer after the Parker family moved to Massachusetts.

The suit alleges the schools' girls basketball schedules violated the 1972 federal law known as Title IX, which prohibits discrimination based on gender by institutions that receive federal money. The schools are also accused of violating the equal protection clause of the 14th Amendment. The list of defendants includes all the schools that played Franklin County in girls basketball.

Posted by Marcia Oddi on Friday, March 11, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Charlie White in court today

Many sources today carry this AP story that begins:

NOBLESVILLE, Ind. (AP) - Indicted Indiana Secretary of State Charlie White is scheduled to appear in court to answer seven felony counts including voter fraud.

A hearing was set for Friday afternoon in Noblesville north of Indianapolis on the charges, which also include perjury, theft and financial fraud

Jim Shella of WISH TV has an interesting angle. Here is part of it:
Consider this: a Democratic lawsuit challenges White’s status on the ballot last November because his voter registration was allegedly false (a contention backed up by grand jury indictments.) If a judge rules in the Democrats’ favor and White is disqualified, the Republicans would not receive the 10% of the vote in the Secretary of State race that is required to maintain major party status. Libertarians, however, would reach 10% after the White vote is removed. Major shift.

Posted by Marcia Oddi on Friday, March 11, 2011
Posted to Indiana Government

Thursday, March 10, 2011

Ind. Decisions - Supreme Court posts one late this afternoon

In David K. Murphy v. State of Indiana, a 3-page, 5-0 opinion by Justice Sullivan, the Court concludes:

We agree with Judge Crone’s analysis and the result reached by the Court of Appeals. We therefore grant transfer and adopt its opinion in full. Ind. Appellate Rule 58(A)(1).

We reverse and remand to the trial court for proceedings consistent with the opinion of the Court of Appeals.

The issue:
Murphy contended that the trial court is the proper authority to determine whether a defendant who completes an educational degree before sentencing is entitled to educational credit time. As noted, the trial court thought such determinations are the province of the DOC. For its part, the State contended that such determinations should be made by the jailing authority, in this case the Delaware County Jail.

The Court of Appeals agreed with Murphy and held that the trial court is the proper authority to determine whether a defendant who completes an educational degree before sentencing is entitled to educational credit time.

Here is the ILB summary of the July 23, 2010 COA decision.

Posted by Marcia Oddi on Thursday, March 10, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Oppossum Plus Hog Equals Jail"

From WLBC 104.1 FM ECI News today, the story begins:

A dispute over a dead animal and a motorcycle has landed a Henry County man in jail.

Posted by Marcia Oddi on Thursday, March 10, 2011
Posted to Indiana Law

Law - "Credit Card Debt That Outlives Mom"

This regular column in the NYT is titled "The New Old Age." Its mission:

Thanks to the marvels of medical science, our parents are living longer than ever before. Adults over age 80 are the fastest growing segment of the population, and most will spend years dependent on others for the most basic needs. That burden falls to their baby boomer children. In The New Old Age, we explore this unprecedented intergenerational challenge.
Today's column looks at:
What happens when borrowers die? Do they take their credit card balances to the grave, or are those left behind responsible for the debt?

Tom from Vancouver Island, British Columbia, offered an answer: “Excess debt over the value of the estate is considered insolvent and cannot be passed on to heirs.” He’s right, it turns out.

Experts say that unlike a mortgage or a car loan, credit card debt is unsecured, meaning that it isn’t tethered to an asset. When someone dies, credit card companies have to wait near the back of the line to receive payment. If what’s left over after settling the estate isn’t enough to pay the bill, credit card debt is written off.

See also the comments, which note that creditors:
[M]ake phone calls and say "Wouldn't you really like to settle this for your deceased loved one?"
Apparently they also keep sending offers for new cards.

Posted by Marcia Oddi on Thursday, March 10, 2011
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Paternity of X.T.; J.H. v. B.T. (NFP)

Term. of Parent-Child Rel. of P.L., A.L. v. I.D.C.S. (NFP)

Dorothy Woods, et al. v. City of Muncie and Muncie Police Dept. (NFP)

NFP criminal opinions today (2):

Robert Tillinghast v. State of Indiana (NFP)

Earlie B. Berry, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 10, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Independent research by judges

The ILB has had a number of entries on the question of independent research by judges, including this one from July 4, 2009 and particularly this one from Aug. 20, 2009.

These came to mind today when a reader pointed to this Feb. 23, 2011 New Jersey federal district court decision where:

[Plaintiff appeals] the Commissioner of Social Security's final decision that she is not disabled under Title II, 42 U.S.C. § 1614(a)(3)(A), of the Social Security Act.
The judge concluded:
Furthermore, it is difficult to ascertain what evidence the ALJ rejected and what evidence he relied on in making his decision. * * * Consequently, the ALJ must provide a more developed finding, clearly stating his reasons for concluding that Purvis is not credible.[4] * * *

For the foregoing reasons, the ALJ's decision is REMANDED for a more developed finding. The ALJ is directed to address Plaintiff's subjective complaints and explain why he does not find them credible.
[4] Although the Court remands the ALJ's decision for a more detailed finding, it notes that in the course of its own research, it discovered one profile picture on what is believed to be Plaintiff's Facebook page where she appears to be smoking. Profile Pictures by Theresa Purvis, Facebook, http://www.facebook.com/home.php#!/photo.php?fbid=XXXXXXXXXXXXXXX&set=a.XXXXXXXXXXXXXXX.8034.1000017 16287336&theater (last visited Feb. 16, 2011). If accurately depicted, Plaintiff's credibility is justifiably suspect.

Posted by Marcia Oddi on Thursday, March 10, 2011
Posted to Indiana Courts

Courts - National efforts to change merit selection systems continue

How Appealing this morning points to two interesting judicial merrit retention stories.

From the Orlando Sentinel, a story by Aaron Deslatte, Tallahassee Bureau Chief, from the Florida House - a quote:

The House Civil Justice Subcommittee voted 10-4 Wednesday to advance a proposed constitutional amendment that would require Supreme Court and appeals judges to get at least 60 percent of the vote in a merit-retention election, instead of a simple majority as now.
From the Des Moines Register, a story that Iowa Governor Branstad has appointed to the Iowa Judicial Nominating Commission a "conservative" lawyer, to seat normally filled by a non-lawyer. The story notes that:
Gustoff [the appointee] is one of the attorneys for a group of Iowans now suing the commission over the fact that half of its members are selected not by elected officials but by lawyers.

Posted by Marcia Oddi on Thursday, March 10, 2011
Posted to Courts in general

Courts - ChicagoTribune wins suit over U of Illinois clout list

For background start with this ILB entry from July 12, 2009.

Today Antonio Olivo of the Chicago Tribune reports in a story that begins:

A federal judge has ruled that the University of Illinios is not barred from releasing the names and other information about hundreds of college applicants who appeared on an internal list of well-connected students, weighing in on a state legal dispute between the university and the Chicago Tribune that stems from the newspaper’s 2009 “Clout Goes to College” series.

U.S. District Court judge Joan Gottschall ruled that U. of I. is mistaken in citing the federal Family Education Rights and Privacy Act of 1974 in its denial of the Tribune’s efforts to obtain the student’s names, grade-point averages and college admissions test scores.

Posted by Marcia Oddi on Thursday, March 10, 2011
Posted to Courts in general

Ind. Courts - "Oral arguments at Jeffersonville High School on Wednesday in a criminal case that could impact thousands of home incarcerations across the state"

Yesterday' oral argument in the case of Mario Brown v. State of Indiana (see summary here in Upcoming Oral Arguments) is the focus of a Louisville Courier Journal article by Ben Zion Hershberg. Some quotes:

[The case] involves a man who pled guilty in Marion County in May 2009 to operating a vehicle after his license had been taken away permanently. He was sentenced to three years of home incarceration.

A few weeks after he was sentenced, the General Assembly amended the home-incarceration law to say those in home incarceration were eligible for a day to be cut from their sentences for each day served with good behavior. The law previously didn’t allow such good-time credit for home incarceration.

Brown’s home incarceration was revoked after 412 days and he was sent to prison for the remainder of his sentence because he tested positive for marijuana use — a violation of his plea agreement.

After being put in jail, Brown filed a motion asking the court to grant him time off for good behavior for the days he had already been on home incarceration, arguing that the amended home-incarceration law should apply to him even though he already had been sentenced when the law was amended. * * *

“What role should the judiciary play?” [Judge] Najam asked, in deciding whether to apply the amended law to a case decided before the amendment with no guidance from the General Assembly.

[Victoria Bailey, Brown’s lawyer, a public defender from Indianapolis] said it was clear to her the law was amended because the legislature felt those in home incarceration were serving too long, so her client should get his good-time credit.

Karl Scharnberg, the deputy attorney general arguing against Bailey, said it wasn’t at all clear the General Assembly wanted to reduce the time prisoners like Brown would serve.

If the legislature wanted the amended law to apply retroactively, Scharnberg said it, would have said so in the amendment.

[More] Here is coverage by Matt Thacker in the New Albany News & Tribune. A quote:
Victoria Bailey, representing Brown through the Marion County Public Defender Agency, argued the amendment is a “remedial statute” enacted to correct a “mischief,” or a defect, in the law and should be applied retroactively. The defect, she argued, was that people were spending too long on home incarceration.

Scharnberg said it was not remedial but rather a change in public policy and argued it would be “nonsensical” to award good behavior for those sentenced under the old law. A prior Supreme Court decision stating that statutes should have only a prospective effect unless directly stated otherwise was also entered as argument.

Posted by Marcia Oddi on Thursday, March 10, 2011
Posted to Indiana Courts

Ind. Gov't. - What the Democrats want

Read Mary Beth Schneider's Indianapolis Star story this morning for details.

And see this editorial today in the Fort Wayne Journal Gazette, headed "Come home, Democrats."

Posted by Marcia Oddi on Thursday, March 10, 2011
Posted to Indiana Government

Ind. Gov't. - "Wisconsin Procedural Skulduggery"

Doug Masson's Blog this morning links to this Madison.com story that describes the process used last evening to pass the Wisconsin "budget repair bill." There is even a chart. And video.

Masson's entry points to the part of the Wisconsin story describing the very brief conference committee "meeting," which took place without notice, observing:

It was before my time, but rumor has it that Sen. Garton, long time Republican leader of the Indiana Senate, did a lot to clean up procedural shenanigans that used to be pretty common, one of which was to call last minute conference committees – or last minute room changes for conference committees. Sen. Garton apparently regularized [how] the Senate did its business, and that has done a lot to instill faith in the process. I’m not sure the importance of that can be overstated. Unless people buy into the legislative process, legislation is really just words on a piece of paper backed up by guys with guns.
Well, it wasn't before my time, I was Garton's chief majority attorney the first three years he was Senate Pro Temp, 1980-83. And I began observing the General Assembly in the late '60s. Conference committee "meetings" were often a couple guys talking in the aisle, or in the hall, with little formality, let alone notice.

Posted by Marcia Oddi on Thursday, March 10, 2011
Posted to Indiana Government

Courts - Two interesting articles on Justice Scalia [Updated]

First, Linda Greenhouse has an opinion column in the March 9, 2011 NYT, headed "Justice Scalia Objects." Her thesis:

Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little. Nearly every time he has come close to achieving one of his jurisprudential goals, his colleagues have either hung back at the last minute or, feeling buyer’s remorse, retreated at the next opportunity. * * *

Justice Scalia’s real shining moment had come four years earlier, on the subject of the Sixth Amendment’s confrontation clause. His opinion in Crawford v. Washington ushered in a revolution in criminal procedure. While under the Supreme Court’s prior approach, statements by unavailable witnesses could be admitted at trial if a judge deemed the statements sufficiently “reliable,” the Crawford decision established a contrary bright-line rule: confrontation means confrontation. If a statement was “testimonial” in character and the witness could not appear in court, the statement stayed out unless the defendant had an earlier opportunity for cross-examination. Speaking for seven justices, Justice Scalia said that this was the only interpretation of the confrontation clause that was true to the original understanding of the Constitution’s framers.

She follows by detailing the retreat.

"Will Someone Give This Book to Justice Scalia?" is an entry this morning in the Law Librarian Blog. Fascinating.

[Updated] See also this item from the WSJ Law Blog, headed: "Assessments of Justice Scalia, on the Eve of His 75th Birthday."

Posted by Marcia Oddi on Thursday, March 10, 2011
Posted to Courts in general

Wednesday, March 09, 2011

Ind. Decisions - Update on: "Indiana couple fights to keep child raised since birth"

Updating this list of earlier entries:

The U.S. Supreme Court has declined to hear an appeal from a Sellersburg, Ind. couple fighting for custody of the now 3-year-old boy whose biological mother gave the child up for adoption by them when he was born in Ohio.
See the Louisville Courier Journal story by Ben Zion Hershberg here.

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Indiana Decisions

Ind. Gov't. - "Marion Co. prosecutor Curry creates white-collar crime hotline"

Carrie Richie's Indianapolis Star report begins:

Marion County Prosecutor Terry Curry has created a hotline people can call to report white-collar crime and government corruption.

The Good Government Hotline, which now is open, connects callers directly to Grand Jury investigators. The number to the hotline is (317) 327-2700.

People can report tips anonymously. The line goes to a voicemail message so people can leave tips any time of day.

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Indiana Government

Ind. Courts - Indiana Super Lawyers . . .

A reader writes about the 2011 Indiana Super Lawyers that there are a lot of great Indiana lawyers on there, but:

Super Lawyers leaves out public defenders and prosecutors, who are often far better litigators than just about anyone at a firm. For instance, as examples of super appellate lawyers: Tom Fisher and Ken Falk should be on there.
[More] From another reader:
I agree wholeheartedly with the previous comment that there are a lot of great public sector attorneys, as well as outstanding in-house counsel. Unfortunately, all of them are excluded from eligibility in the selection criteria* for “Super Lawyers.”
*For all lists published in 2010 and after, we will no longer select non-private practice attorneys (e.g., in-house counsel, prosecutors, public defenders, non-practicing law professors, etc.). However, legal aid and legal services attorneys will continue to be eligible.

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Indiana Courts

Ind. Gov't. - Tweaking of: Responsibilites for the budget and redistricting

For those interested in the ILB's most recent redistricting entry, I've tweaked it somewhat in an update tacked onto the end, after a note from a reader.

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Indiana Government

Environment - Congrats to Gary Post-Tribune reporter Gitte Laasby

But a huge loss to the Post-Tribune and to the NW Indiana environmental community. Laasby wrote in an email today:

I suspect the word's trickling out, so I thought I would let you know that I will be leaving the Post-Tribune on March 17.

I have accepted a job as a multimedia and investigative police reporter at the Milwaukee Journal Sentinel, where I'll be starting on March 21.

Laasby's first big stories that the ILB picked up on involved the BP permits. Here is an early sample, from July 20, 2007.

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Environment

Ind. Decisions - Two Indiana opinions today from 7th Circuit

In Peggy Abner and Linda Kendall v. Scott Memorial Hospital (SD Ind., CJ Young), a 6-page opinion, Judge Posner writes:

On February 15, 2011, we issued an order to show cause why the appellants should not be sanctioned for filing an oversized brief without our permission. The appellants have responded and the sanctions proceeding is ripe for decision—as indeed is the appeal itself, which has been fully briefed. * * *

The appellants’ brief states: “The undersigned [the appellants’ lawyer, John L. Caudill] hereby certifies that this brief complies with the type-volume limitation requirements of FRAP [Federal Rule of Appellate Procedure] 32(a)(7)(B), as this brief contains 13,877 words according to a word count by the word-processing system used to produce this brief, exclusive of sections of this brief exempted by FRAP 32(a)(7)(B)(iii).” But in note 1 on page 1 of the appellee’s brief we read that the appellants’ brief exceeds the 14,000-word limit—that it contains 18,000 words excluding the portions of the brief that Rule 32(a)(7)(B)(iii) exempts from the word limit. No authorization by this court had been sought or given by either party to file an oversized brief. The appellee’s brief was within the word limit. * * *

The response to the order to show cause, signed by lawyer Caudill, concedes that the brief exceeds the word limit (it exceeds it by more than 4,000 words), and states by way of explanation that he had “inadvertently considered only the words included in the argument section of the brief as part of the Rule 32(a)(7)(B)(iii) requirement (the word count also did not factor in citations made within parentheticals).” It is difficult to see how these errors could be “inadvertent.” * * *

Had appellants filed an 18,000-word brief with a truthful certificate, the brief would have been rejected; there would have been no occasion for sanctions, just as there is no occasion for sanctions when a brief is rejected for omitting a statement of the standard of review or the date on which the judgment was entered, which is essential to determining the timeliness of the appeal. We reject many briefs for these and similar reasons. The problem here, by contrast, is a misrepresentation that was initially successful in averting rejection of the brief. The misrepresentation would have gone unnoticed had the appellee not called it to our attention. * * *

Lawyer Caudill’s response to our order to show cause continues with the false claim that the appellants’ violation of the Federal Rules of Appellate Procedure “came to the Court’s attention via an ex parte contact made by counsel for Appellee directly to the Court of Appeals Clerk—and not (if it were actually a significant matter) in the form of a Motion filed by Appellee. * * *

The flagrancy of the violation in this case might well justify the dismissal of the appeal: let this be a warning. But in addition it is plain from the briefs that the appeal has no merit. To allow time for the appellants to file a compliant brief and the appellees to file a revised brief in response, and to reschedule oral argument, would merely delay the inevitable.

The motion to file an oversized brief is denied and the judgment of the district court summarily AFFIRMED.

In U.S. v. Styles Taylor and Keon Thomas (ND Ind.,Charles R. Norgle, Sr., Judge), a 10-page opinion, Judge Stykes writes:
This case returns to us again on the issue of the prosecutor’s use of a peremptory strike against an African-American member of the jury pool. Styles Taylor and Keon Thomas, both African-American, were convicted of robbing and murdering the owner of a gun store in Hammond, Indiana. See 18 U.S.C. §§ 924(c) & (j), 1951. The victim was white. During jury selection, the defendants challenged the government’s use of peremptory strikes against several African-American jurors. See Batson v. Kentucky, 476 U.S. 79 (1986). The district court denied the Batson challenges, accepting the government’s proferred nonracial reason for the strikes. Twice we have remanded the case to the district court for further explanation of whether the prosecutor’s stated reason was credible with respect to one juror in particular. See United States v. Taylor, 509 F.3d 839, 841 (7th Cir. 2007) (“Taylor I”); United States v. Taylor, 277 F. App’x 610, 612-13 (7th Cir. 2008) (“Taylor II”).

After our second remand, the district court held an evidentiary hearing and issued a lengthy decision again crediting the prosecutor’s explanation for the strike, which had expanded to include multiple new nonracial justifications. The defendants contend in this latest appeal that the scope of the inquiry on remand should have been limited to explaining the original reason offered during voir dire, not adding new ones. We agree. The Supreme Court held in Miller-El v. Dretke, 545 U.S. 231, 252 (2005) (“Miller-El II”), that the validity of a strike challenged under Batson must “stand or fall” on the plausibility of the explanation given for it at the time, not new post hoc justifications. Because it is not possible to separate the permissible from the impermissible support for the court’s Batson determination, we must vacate and remand for retrial. * * *

In this case, when the Batson challenge was made, the only reason offered by the prosecutor to justify striking Watson was her response to the non-shooter question. As such, on remand the court should have limited its inquiry and analysis to exploring that very question. But the remand hearing went much further. The government compared Watson to jurors Nowak, Evans, and Wills against the backdrop of seven new reasons unrelated to the jurors’ willingness to impose the death penalty on a non-shooter. And the district court factored several of these new reasons into its analysis. For instance, the court accepted the government’s explanation for striking Watson while keeping Nowak and Evans in the pool by closely examining the written responses of all three jurors to death-penalty questions on their juror questionnaires. But at the time the Batson challenge was made, the prosecutor did not say a word about striking Watson because of her answers on her juror questionnaire. Similarly, in crediting the government’s explanation for striking Watson but not Wills, the court looked beyond their responses to the non-shooter question and analyzed their attitudes toward gun control and how they might evaluate the defendants’ backgrounds when deciding whether to recommend the death penalty. But when the Batson challenge was made, the prosecutor never tried to justify striking Watson based on her views of either of these issues.

Accepting new, unrelated reasons extending well beyond the prosecutor’s original justification for striking Watson amounts to clear error under the teaching of Miller-El II, and the government’s reliance on these additional reasons raises the specter of pretext. Our decision in Hendrix is not to the contrary; in that case, the “add on” race-neutral reasons were offered at the time of the initial Batson challenge, not after the fact. Hendrix, 509 F.3d at 367. That’s obviously not the case here. It’s not possible to parse the district court’s decision, separating the permissible from the impermissible reasons supporting the court’s credibility finding. Accordingly, we must vacate the judgments and remand for a new trial.

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Perhaps the end is near?

A recently filed IndyStar story by Mary Beth Schneider begins:

House Speaker Brian Bosma said this morning he is optimistic that the nearly three-week-old standoff in the Indiana House is nearing a close, now that the Democrat leader has both called and written him to discuss some of the issues.

House Minority Leader B. Patrick Bauer, who is in Urbana, Ill., with most of the 40 House Democrats, called Bosma this morning, and sent him a letter Tuesday. While the conversations did not break any new ground, as Bauer sought clarification on how bills that passed committees but have died due to the impasse will be handled, Bosma called it a positive step.

Bosma -- who said he assured Bauer that those bills cannot be revived, although similar subject matter could be amended into Senate bills later in the process -- called the contacts "my first glimmer of hope here in three weeks."

"I'm hopeful Monday is a work-day for everyone," he said.

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In David Sasser v. State of Indiana , a 9-page opinion, Judge Baker writes:

The defendant herein claims that he attempted to register as a sex offender on multiple occasions but for various reasons—a detective’s mistaken advice, computers that were down, and a non-returned voicemail — was never successful in doing so. The detective who dealt with the defendant has a different version of events. Although it was for the jury to assess the credibility of these witnesses, the fact that this case turned on credibility means that the admission of evidence of the defendant’s prior convictions for failure to register was fundamental error. Consequently, we reverse.

Appellant-defendant David Sasser appeals his conviction for Failure to Register as a Convicted Sex Offender While Having a Prior Conviction, a class C felony. Sasser raises a number of arguments, one of which is dispositive: that the trial court erred by admitting evidence regarding Sasser’s prior convictions for failing to register. Finding that the admission of that evidence was fundamental error, but also finding sufficient evidence supporting the conviction, we reverse and remand for a new trial. * * *

It is apparent that much, if not all, of this case boils down to an assessment of witness credibility. And that is a task for the jurors, who viewed all of the testimony and apparently found Detective Haltom’s version of events to be a more credible one than Sasser’s. We cannot and will not second-guess the jurors’ decision in this regard, and we find that the evidence was sufficient to support the conviction. Therefore, although we reverse based on the admission of the evidence discussed above, we also remand for a new trial.

In Jerrell D. White v. State of Indiana , an 11-page opinion, Judge Baker writes:
The defendant herein was convicted of theft for stealing a cash register and cash from a restaurant. He was also convicted of receiving stolen property for divvying up that cash with his accomplice. We find that the two convictions violate the prohibition against double jeopardy. Additionally, we find that the State failed to prove beyond a reasonable doubt that the defendant was a habitual offender because one of his alleged prior felonies was committed when he was fifteen years old and the State offered no evidence to show he was charged and convicted as an adult. Consequently, we reverse in part and remand with instructions. * * *

We find that White’s convictions violate double jeopardy and that there is insufficient evidence supporting the habitual offender finding. We also find, however, that the evidence supporting the theft conviction is sufficient and that the remaining three-year sentence thereon is not inappropriate. We affirm in part, reverse in part, and remand with instructions to vacate the receiving stolen property conviction, the habitual offender finding, and the sentences previously imposed for those two counts.

NFP civil opinions today (1):

Thomas P. Burke v. American General Financial Services, Inc. (NFP)

NFP criminal opinions today (3):

Joshua Murrell v. State of Indiana (NFP)

James D. Imel, Jr. v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Smoking concerns cloud city’s hosting of Big Ten tourney"

Good story from Scott Olson of the IBJ.

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Indiana Government

Ind. Gov't. - More on: "White Accused Of Looking Into Case Before Indictment"

Updating this ILB entry from yesterday, that ended with a link to the Public Access Counselor's ruling that the Rokita Report was not available to the public and with this quote from Robert Annis' Star story yesterday:

Despite the bulk of the taxpayer-funded report consisting of public documents, both Rokita and White have refused to release it. Indiana Public Access Counselor Andrew J. Kossack ruled last year that because the report was "deliberative material . . . and communicated for the purpose of decision making," it was exempt from the state's open records laws.
Annis' updated story in today's Star concludes with this:
After the special prosecutors' request for an inspector general's investigation was made public Tuesday, Indiana Democratic Party Chairman Dan Parker called for the secretary of state's office to release the report voluntarily.

Indiana Public Access Counselor Andrew J. Kossack ruled last year that because the report was "deliberative material . . . and communicated for the purpose of decision-making," it was exempt from the state's open records laws.

Parker wants the report released.

"Everybody's seen it except the public," he said. "And given the fact that the indictments are now out, this is not information that would prejudice the case. The report needs to be released."

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Indiana Government

Ind. Gov't. - Still more on: Responsibilites for the budget and redistricting [Updated]

The most recent ILB entry (directly below) ended, "there is more to this story" about the congressional redistricting commission. Here is Executive Order 01-11 signed by Gov. Frank O'Bannon on May 16, 2001. It begins:

WHEREAS, the State of Indiana was apportioned nine (9) seats in the United States House of Representatives following the 2000 Decennial Census, and

WHEREAS, the 112th Indiana General Assembly adjourned its First Regular Session on April 29, 2001, having failed to establish by law Congressional Districts for Indiana’s members of the United States House of Representatives, and

WHEREAS, pursuant to IC 3-3-2-2, a Redistricting Commission was duly established for the purpose of adopting a Congressional redistricting plan, and

WHEREAS, the Redistricting Commission adopted a Congressional redistricting plan on May 10, 2001, in accordance with IC 3-3- 2-2, and has submitted such plan to the Governor signed by a majority of the members of the Redistricting Commission,

NOW, THEREFORE, I, Frank O’Bannon, Governor of the State of Indiana, pursuant to the power vested in me by the Constitution and laws of this State, including IC 3-3-2-2, do hereby issue and publish this Executive Order establishing Congressional Districts for Indiana’s members of the United States House of Representatives.

Following this are 5 pages setting out the boundaries of the 9 districts.

But are these the actual congressional districts currently in use?

Presumably, yes. But looking at the Indiana Code, IC 3-3-3 is headed "Congressional Districts." It sets out 10 districts, all created not by executive order, but by state statute: P.L.240-1991(ss2), SEC.122. These are the districts for the last decade of the last century. They have never been repealed ...

[Updated at 1:45 pm]

A note from a reader clues me in to the fact that I may not have made my points clearly here. So I'll try again.

1. I didn't see the 10 vs. 9 districts as an issue, Congress makes that determination every 10 years. Maybe I shouldn't have used the boldface, although I thought it distinguished the old law from the new.

2. A point I intended to make is one I have made before -- all the active law in Indiana unfortunately is not included in the Indiana Code. Currently what the Code has is the old districts; and the current districts are included only in a hard-to-locate Executive Order from 2001.

3. My other point was that the news reports have for the most part simply stated that "redistricting must be completed by the end of April", without going into the nuances -- i.e. federal redistricting has different deadlines than state redistricting.

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Indiana Government

Ind. Gov't. - More on: Responsibilites for the budget and redistricting

Updating yesterday's ILB entry, that ended with this:

*ILB: I'm looking for the law that requires the General Assembly to approve the new U.S. Congressional districts by the end of the session in April.
Maureen Hayden, statehouse reporter for CNHI, has a good story today in the Clark County News & Tribune that answers the question. The headline, "Walkout may put legislative redistricting in peril: Five-member committee could ultimately decide districts." Some quotes:
The Indiana constitution requires legislators who are elected in the year when the Census is taken to redraw the state legislative district maps by the end of their two-year term. That means the current legislature has until the end of 2012 to complete that task.

But Indiana state law, enacted in 1969, requires lawmakers to get the job done quicker when it comes to the federal congressional districts. The law reads: “Congressional districts shall be established by law at the first regular session of the general assembly convening immediately following the United States decennial census.”

The law then goes on to say what happens if they fail: A five-member redistricting commission “shall be established” within 30 days of the end of the regular legislative session, which by law is April 29.

The law also spells out who is on the commission: the Speaker of the House, the President Pro Tem of the Senate, and the chairmen of the Senate and House committees that oversee redistricting matters. All those positions are held by Republicans.

The fifth member of the commission must be appointed by the governor. In this case, that’s Republican Gov. Mitch Daniels, who has in the past vowed to veto any redistricting plan that came out of the legislature that wasn’t fair and equitable.

It’s the governor, who by law, must also approve any redistricting plan that would come out the five-member redistricting commission. Redrawing the political boundaries that decide what state and federal districts look like is a contentious process since it can determine the partisan flavor of an election and tip the results in the favor of the political party in power.

Fights over redistricting led to legislative walkouts in the past, by Senate Democrats in 1991 and House Republicans in 2001.

Where is this law? It is not where one might expect, in Title 2, General Assembly; Article 1, Legislative Reapportionment. Rather, it is in Title 3, Elections; Article 3, Congressional Reapportionment.

But there is more to this story...

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Indiana Government

Courts - Crime law woes and the upshot in New York's Nassau County

The ILB has had a number of entries based on IndyStar reporting, headed "Errors found in Indiana state lab toxicology tests: Mistakes that audit uncovered could lead to overturned verdicts."

Andrew Keshner of the New York Law Journal reported yesterday in a lengthy story that began:

Citing revelations of problems at the Nassau County Police Department's now-closed crime lab—including the mislabeling of blood alcohol test results—a judge yesterday set aside the conviction of a woman facing up to seven years in prison for vehicular assault and ordered a new trial.

The decision by Nassau County Court Judge George R. Peck, based on newly discovered evidence, to set aside the conviction of Erin Marino under Criminal Procedure Law §330 is believed to be the first to consider the legal consequences of problems at the crime lab, but others are anticipated.

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Courts in general

Ind. Gov't. - "GOP member worries about voucher bill"

WISH TV's Jim Shella reported yesterday:

The school voucher bill that would give disadvantaged students state scholarships to attend private schools is one source of the ongoing Democratic walkout in the Indiana House of Representatives, but there is some new bi-partisan concern about the bill.

State Senator Brent Steele (R-Bedford) is an opponent of the school voucher bill and this week he sent a letter to every state lawmaker spelling out his opposition.

"I just think it's a crazy place for us to go," said Sen. Steele.

Steele says in the letter that the bill could mean that taxpayer money would go to a school operated by the Westboro Baptist Church, the church that holds vulgar demonstrations at veteran's funerals.

Meanwhile, Kevin Allen of the South Bend Tribune reports from Urbana:
Indiana House Minority Leader B. Patrick Bauer said Tuesday that Democrats have narrowed the scope of their legislative boycott to three bills, but there still is no end in sight for the partisan stalemate that began more than two weeks ago. * * *

The Democrats are focused on amending or preventing three Republican-sponsored measures, Bauer said, that would create vouchers for private school tuition, restrict prevailing wage rules and labor agreements for public building projects, and affect collective bargaining for teachers and public employees.

Matthew Tully also writes from Urbana in a front-page story this morning in the Indianapolis Star - some quotes:
For many of the Democrats, this stalemate has become a cause. The walkout might have started as a protest of anti-union legislation. But the Democrats have begun to believe this impasse stands for something bigger.

"The whole experience," said Rep. Mary Ann Sullivan, Indianapolis, "I don't know how to explain it. It's been very powerful."

Added Rep. Bill Crawford, also of Indianapolis: "It has the appearance of a movement as opposed to a typical political battle."

Such comments make clear that emotions are running high -- and those emotions are at least partly behind the decision to remain in Illinois. The Democrats have been away from their homes and families for more than two weeks now. They've been living in hotel rooms since late February. For many, the political fight has gotten personal. Every Democrat I talked to said that after fighting for this long, they desperately want to win. Many believe they are in the most important political battle of their careers.

"It would be disastrous for us to back down now," said Rep. Charlie Brown, Gary.

Leaving Urbana, I had the sense that Democrats are more dug in now than they were when they first fled the state.

Republicans couldn't have done a better job of uniting Democrats. That's not a judgment on the GOP's policies; it's simply political reality. * * *

"They've tapped into the things that bring us together," said Rep. Scott Pelath, Michigan City. "This is largely about our core economic principles."

Some ILB thoughts:

Regardless of how this turns out, I think that looking back in a year or two, it will be seen as one skirmish in a national battle that began with the Supreme Court's Citizens United decision that made big business and unions the major competing sources for financing political campaigns. With the Republican successes in the last election, there is a widespread effort underway to reduce the power of the unions, and not limited to the midwestern states we have reading about, as I realized yesterday when reading this story in Politico headed "Idaho OKs bill limiting bargaining."

Posted by Marcia Oddi on Wednesday, March 09, 2011
Posted to Indiana Government

Tuesday, March 08, 2011

Environment - More on "Asian carp seized, U.S. firm fined"

Updating this post from earlier today, AP is reporting it was "the owner of Sweetwater Springs Fish Farm of Peru, Ind., [who] pleaded guilty Monday to possessing live invasive fish."

Still no word on where in Canada the 6,000 pounds of live Asian carp were headed.

Posted by Marcia Oddi on Tuesday, March 08, 2011
Posted to Environment

Ind. Gov't. - "White Accused Of Looking Into Case Before Indictment" [Updated]

More on our indicted Secretary of State, Charlie White: Norm Cox of 6NEWS writes:

Two special prosecutors have asked the Indiana inspector general to investigate whether indicted Secretary of State Charlie White improperly accessed a report detailing evidence of alleged voter fraud against him.

Special prosecutor John Dowd said Tuesday he and another prosecutor had asked the inspector general to investigate whether White broke any ethics laws when he accessed the report after taking office.

The report was prepared for the state recount commission, which dismissed a Democratic challenge to White's victory in the Nov. 2 election along party lines.

Cox also "has been trying to find White, visiting his office each day, but White's spokesman, Jason Thomas, told Cox that he doesn't know where White is."

[More] Well, it turns out Robert Annis of the Star posted a story on this earlier this afternoon, headed "Charlie White's handling of report on his case questioned." Some quotes:

Already facing multiple felony counts in Hamilton County, Secretary of State Charlie White is facing yet another investigation.

At the heart of the matter is a massive 265-report compiled under then-Secretary of State Todd Rokita allegedly detailing evidence against White. Special prosecutors John Dowd and Dan Sigler called for the Indiana Inspector General's office to investigate whether or not White improperly accessed the file after he took over the office in January. * * *

The secretary of state's report was created for the members of the Indiana Recount Commission, which decided 2-1 in December that White was eligible to run for office even though he wasn't properly registered to vote at the time. A Marion Circuit Court judge will hear the Democratic Party's appeal April 6.

The report was later given to Sigler and Dowd, who presented much of the information to a Hamilton County grand jury. That grand jury indicted White on seven felony counts of voter fraud, perjury and theft last week. * * *

Despite the bulk of the taxpayer-funded report consisting of public documents, both Rokita and White have refused to release it. Indiana Public Access Counselor Andrew J. Kossack ruled last year that because the report was "deliberative material . . . and communicated for the purpose of decision making," it was exempt from the state's open records laws.

Although they can release the report as well, Sigler and Dowd have thus far refused.

Here is the PAC ruling on the request for the Rokita report:
10-FC-266; Alleged Violation of the Access to Public Records Act by the Indiana Secretary of State -- This is the Nov. 29, 2010 response of the PAC to the Secretary of State's denial of an Oct. 26, 2010 request by Gregory A. Purvis for the Charlie White report.

Posted by Marcia Oddi on Tuesday, March 08, 2011
Posted to Indiana Government

Ind. Gov't. - "Daniels threatens Democrats with summer session"

Headline to a Niki Kelly FWJG story posted at noon. Of course, this summer session punishment of necessity would impact both parties ...

Posted by Marcia Oddi on Tuesday, March 08, 2011
Posted to Indiana Government

Ind. Gov't. - More on the John R. Justice student loan repayment program

The ILB has had a number of earlier entries on this program, but has seen nothing further for some time.

It turns out the Indiana Attorney General has a website on the loan repayment for program for prosecutors, public defenders, and the like.

Note that "Application packets are due by March 31, 2011."

Posted by Marcia Oddi on Tuesday, March 08, 2011
Posted to Indiana Government

Ind. Gov't. - "Are Indiana Alcohol and Tobacco Commission minutes adequate?"

This is from the March 7, 2011 issue of the newsletter of Project RAD (Responsible Alcohol Distribution):

Project RAD filed this request with the state's Public Access Counselor (PAC) last year when it became clear that ATC minutes seemed a bit - inadequate. We filed this request and are now sharing it based on some recent queries we have received about the commission. The PAC, which was initially created by the executive order of former Gov. Frank O'Bannon, can sometimes provide a useful (and free) legal opinion on public agencies and how they handle public meetings and public records.

Here's the PAC response to our query about ATC minutes (bold items are our emphasis):

You ask whether the Indiana Alcohol and Tobacco Commission (the "Commission") is required to create more detailed minutes than those the Commission currently makes available through its website. The Commission currently does not include information identifying which permits from applicants are approved by a vote of the Commission at its regular meetings.

The ODL (Open Door Law) contains no requirement that a governing body utilize an agenda or create minutes of its meetings. Regarding minutes and memoranda, the ODL provides the following:

(b) As the meeting progresses, the following memoranda shall be kept:
(1) The date, time, and place of the meeting.

(2) The members of the governing body recorded as either present or absent.

(3) The general substance of all matters proposed, discussed, or decided.

(4) A record of all votes taken, by individual members if there is a roll call.

(5) Any additional information required under IC 5-1.5-2-2.5.

(c) The memoranda are to be available within a reasonable period of time after the meeting for the purpose of informing the public of the governing body's proceedings. The minutes, if any, are to be open for public inspection and copying.
I.C. § 5-14-1.5-4 (emphasis added). Thus, because the Commission is not required by the ODL to create minutes, it is my opinion that nothing requires the Commission to create more detailed minutes than those it currently posts online. I note, however, that because the Commission is required to create memoranda with the information required by section 4(b), more detailed information regarding votes might be available to you upon request to the Commission.

If I can be of additional assistance, please do not hesitate to contact me.

Best regards,
Andrew J. Kossack
Indiana Public Access Counselor

ILB: Here is the Alcohol & Tobacco Commission website. There does not appear to be any reference to either ATC meetings or minutes, or who the commissioners are. If there are meetings, they should be public noticed somewhere ...

I can't locate the PAC opinion online; as noted in earlier posts, the opinions section is not kept up-to-date.

Posted by Marcia Oddi on Tuesday, March 08, 2011
Posted to Indiana Government

Ind. Law - "Poor plans for secrecy"

A Fort Wayne Journal Gazette editorial yesterday focused on legislative provisions in two bills pending in the General Assembly (back when bills were pending in the General Assembly --- all of this seems so long ago now ...), a dealing with expungement, and the other with making accident reports secret.

The language on expungement is one of the provisions added to the Governor's sentencing reform bill (SB 561) in the Senate. SB 84 is the bill to delay accident report access, for background start with this ILB entry from Feb. 10, 2011.

The FWJG editorial begins:

Two unrelated attempts by legislators to help Hoosiers are well-meaning, but by preventing public access to clearly public information, they create far bigger problems than they would solve.

Posted by Marcia Oddi on Tuesday, March 08, 2011
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 4 today (and 12 NFP)

For publication opinions today (4):

In Mark Lesh v. Richard Chandler and Marilyn Chandler, a 20-page opinion, Judge May concludes:

There was evidence presented to support the findings contested by Lesh, and those findings supported a judgment in favor of the Chandlers. We accordingly affirm the trial court's conclusion that Lesh's actions amounted to a private nuisance. We reverse the trial court's decision to extend the protective order dated April 26, 2006, because the proceedings on which that order was based were dismissed with prejudice by stipulation of the parties on September 28, 2006. As the protective order was not in effect after September 28, 2006, the finding that Lesh violated its terms is reversed. We remand for redaction of the language in Judgment Items C and G regarding the protective order. Finally, we affirm the permanent injunction entered against Lesh, the contempt finding against Lesh, and the damages awarded in favor of the Chandlers.
In Anna Quimby v. Becovic Management Group, Inc. , a 6-page opinion, Judge May writes:
The trial court did not err in dismissing Quimby’s action for failure to state a claim on which relief could be granted, as she had assigned her claim and was no longer the real party in interest.
In Lisa Gray v. State of Indiana , a 10-page, 2-1 opinion, Judge Kirsch writes:
Lisa Gray appeals her conviction of possession of marijuana,1 as a Class A misdemeanor, contending that there is insufficient evidence that she constructively possessed the marijuana. We reverse. * * *

The record before us contains no evidence that Gray made any incriminating statements or attempted to flee. In fact, Gray came willingly to the door, appeared genuinely shocked when she learned of the reason for the visit, and signed a written consent to permit the officers to search her apartment. Additionally, the officers provided no testimony that the premises were being used to manufacture drugs. The officers testified that the marijuana was found in plain view, under a coffee table that was situated in front of the two juvenile males. However, there was no evidence that Gray was near the marijuana, could see the drugs, or was aware that marijuana was in her home. Finally, there was no testimony that any of Gray‟s possessions were found in close proximity to the marijuana. The officers only established that marijuana was found in a communal room of Gray‟s home, under a coffee table, next to which two male visitors were sitting, and that no one declared ownership of the drugs. From this evidence, the State failed to prove beyond a reasonable doubt that Gray constructively possessed the marijuana. * * *

CRONE, J., concurs.
BRADFORD, J., dissents with separate opinion. [that begins, at p. 7 of 10] I cannot agree that the State failed to produce sufficient evidence to establish that Gray constructively possessed the marijuana found in plain view in her apartment. Consequently, I respectfully dissent.

It is well-settled that "conviction for possessory offenses does not depend on the accused being 'caught red-handed' in the act by the police."

In Anderson Property Management v. H. Anthony Miller, Jr., a 10-page opinion, Judge Kirsch writes:
Anderson Property Management, LLC (“Anderson”) appeals the trial court’s judgment ordering enforcement of the parties’ mediated agreement in a declaratory judgment action brought by H. Anthony Miller, Jr., LLC (“Miller”) arising from a sale of commercial real estate in Warsaw, Indiana. We reverse in part, vacate in part, and remand with instructions.
NFP civil opinions today (3):

Town of Highland and Highland Sanitary District v. Lee Lieberman, et al. (NFP)

L.H. v. Review Board (NFP)

In the Matter of J.C., Alleged to be CHINS; K.M. v. IDCS and Child Advocates (NFP)

NFP criminal opinions today (9):

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

Joseph M. Ferry v. State of Indiana (NFP)

Glen LeRoy Rusher v. State of Indiana (NFP)

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

Anthony Scott v. State of Indiana (NFP)

Vincent Demus v. State of Indiana (NFP)

Mark Kennedy v. State of Indiana (NFP)

Devon Walton v. State of Indiana (NFP)

Willie J. Herman, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 08, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Responsibilites for the budget and redistricting

Budget. It used to be that every session one could count on numerous stores saying something to the effect that "the General Assembly's only constitutional requirement" every two years is writing the budget. In 2005 the ILB posted an entry headed "Where does the Indiana Constitution say that?"

The entry was followed by another two days later. It concluded that nowhere are there words to this effect: "The General Assembly shall pass a budget each biennium."

However, Art. 10, Sec. 3 does contain this prohibition: "No money shall be drawn from the Treasury, but in pursuance of appropriations made by law."

In short, there is no specific constitutional mandate that the General Assembly pass a budget each biennium. But if they don't, government will come to a halt when the appropriated funds run out.

Moving forward from 2005 to the present, Doug Masson's blog pointed out this Sunday that Niki Kelly of the FWJG had written: "The two legal responsibilities of legislators are to pass a budget every two years and redraw political boundary maps every decade with new census data." He continued:

I’m not sure that’s the case. For a long time, it got bandied about that there was a Constitutional responsibility for the General Assembly to pass a budget. There isn’t. Here, Niki Kelly says that it’s a “legal responsibility.” That covers more ground, so I can’t say she’s wrong. But, I’ve never seen that spelled out in the Indiana Code. Certainly it’s a good idea and critical to the functioning of the State. But, I don’t believe I’ve seen budget responsibilities elevated above other legislative responsibilities in the Constitution or the Code. Nevertheless, every two years, I see newspaper articles asserting that the budget is legally special in some fashion.
Yesterday, reporter Kelly had another story. Here is a quote:
Monday marked the start of a third week of the legislative boycott.

The state’s budget runs out June 30. Indiana can’t spend money without a new budget.

The Indiana Constitution specifically says “no money shall be drawn from the treasury, but in pursuance of appropriations made by law.”

Can't quibble with that!

Redistricting. There have been a number of stories this year stating that the Indiana constitution requires that redistricting be done in the current legislative session, before adjournment in April.

In this March 6th ILB entry, I repeated once again that I read Article 4, Sec. 5 [which deals with state legislative districts, not congressional districts] to mean that legislators "have two years to draw the maps, this coming 2011 session, and the 2012 session. And it doesn't have to be done in a regular session, the bills setting out the districts may be passed in a special session."

In a CNHI story
that appeared in the Logansport Pharos-Tribune, also on March 6th, reporter Maureen Hayden made similar points:

By law*, the General Assembly must approve the new U.S. Congressional districts by the end of the session in April. They could delay approving state House and state Senate districts until the 2012 short session.

But as [former Indiana legislator Bill] Ruppel notes, it would be a logistical challenge: Primary candidates for House and Senate seats have to file for office by mid-February — before the new districts maps would likely be approved.
*ILB: I'm looking for the law that requires the General Assembly to approve the new U.S. Congressional districts by the end of the session in April.

Posted by Marcia Oddi on Tuesday, March 08, 2011
Posted to Indiana Government

Environment - "Asian carp seized, U.S. firm fined"

An odd story today in the Toronto Sun about an "Indiana company caught bringing live Asian carp into Canada." A truck inspection found:

6,000 pounds of bighead carp were found packed in ice.

The fish can live 24 to 48 hours out of the water, and the gills of some were still active. Several were placed in water and they began moving, the court was told.

No explanation of where the 6,000 pounds of Asian carp were headed.

Posted by Marcia Oddi on Tuesday, March 08, 2011
Posted to Environment

Ind. Law - "Ex-Muncie Central principal charged over handling of rape case"

Updating a Nov. 19, 2010 Muncie Star-Press story that began:

MUNCIE -- More than a week after a student reported she was raped at Central High School, school administrators are coming forward to speak with police detectives.

The development happened after police blasted the school for "interfering" and "delaying" the police investigation into the reported rape on Nov. 9. * * *

School officials did not call police in after the victim reported having been raped in a school restroom, but instead had her sit in the principal's office for two and a half hours. The high school's principal and two assistant principals backed out of an appointment last Friday to meet with detectives.

Today Douglas Walker reports in the Star-Press in a story that begins:
MUNCIE -- The other shoe dropped Monday for ex-Central High School Principal Christopher Smith, who now faces a criminal charge over his handling of a student's Nov. 9 report that she had been raped in a school restroom.

Smith, 40, 4309 W. Sandpiper Drive, was charged Monday afternoon with failure to immediately report child abuse or neglect, a Class B misdemeanor carrying a maximum 180-day jail term.

The formal charge, filed in Delaware Circuit Court 5 by Deputy Prosecutor Eric Hoffman, alleges that Smith "had reason to believe that a child may be the victim of child abuse or neglect" and "did knowingly fail to immediately make a report to the Indiana Department of Child Services or a local law enforcement agency."

Authorities have said Central administrators failed to notify police -- including officers working security shifts in the school that day -- about the girl's claims. The student reportedly sat in Smith's office for 2 1/2 hours after reporting the assault, and her alleged attacker was allowed to go home.

Posted by Marcia Oddi on Tuesday, March 08, 2011
Posted to Indiana Law

Ind. Courts - More on: Practitioner questions to COA staff attorneys

Yesterday's entry on the Court of Appeals' recent requirement that most all questions now be posed in the form of motions (rather than as "quick phone calls" to one of the three staff attorneys) drew this response this morning from an attorney who practices frequently before the Court of Appeals:

Here is the concern from a practitioner's standpoint: the length of time it seems we now wait for motions to be ruled on is problematic. And this is not since the new chief judge. It is not unusual for me to wait a month for a routine motion to be granted. And when I once filed a not-so-routine motion that had to go to the motions panel, it took over two months to receive an order. Sometimes I find myself in a dilemma, not knowing if I should file a motion to get my question answered, knowing that the motion probably won't be ruled on before my deadline, or just take my chances.

Way back when, Commissioner Blue was the one you contacted with questions. I don't know that the Court has replaced her, so the task of answering questions seems to have fallen to the staff attorneys, who might be overburdened with questions and their regular duties.

ILB: Commissioner Janet Blue was a legendary figure at the Court of Appeals. See this Sept. 18, 2006 ILB entry, headed: "Janet Blue, 1933-2006: Commissioner of the Indiana Court of Appeals."

Posted by Marcia Oddi on Tuesday, March 08, 2011
Posted to Indiana Courts

Ind. Courts - "Lafayette real estate broker has been charged with 13 felonies after a yearlong investigation found she had forged client signatures in an attempt to qualify for tax breaks on properties"

Some quotes from a story today in the Lafayette Journal Courier by Mikel Livingston:

Brenda K. Hatfield, 46, was charged Monday in Tippecanoe Circuit Court with 12 counts of forgery and one count of corrupt business influence -- all Class C felonies.

According to court documents filed Monday, investigators said Hatfield, looking to get in on some property tax breaks, was facing a tight deadline in early 2010 to transfer some property, so she forged signatures to get in under the wire.

The investigation began in March 2010, after some of Hatfield's tenants saw in the Journal & Courier that they were listed as having purchased the rental properties they were occupying.

The story links to the 18-page document of charges filed.

Posted by Marcia Oddi on Tuesday, March 08, 2011
Posted to Indiana Courts

Ind. Gov't. - "More Duke e-mails raise questions"

John Russell continues coverage of the Duke / IURC story today, with a new front-page story headed "More Duke e-mails raise questions: A cap on Edwardsport project's cost overruns was discussed with IURC, CEO's letter shows." Today's long story begins with coverage of what appears to be a proactive or preemptive effort on the part of Duke:

In a new, surprising twist regarding Duke Energy Corp.'s secret communications with Indiana regulators, the utility's chairman on Monday alerted state officials to new e-mails that are sure to raise more questions about the company's conduct.

James Rogers, chairman and chief executive officer of Duke, told the Indiana Utility Regulatory Commission he has reviewed 9,000 e-mails that "when taken together, might be construed to suggest" that improper conversations have taken place regarding the potential settlement of cost overruns at the company's power plant under construction in Edwardsport, Ind.

A group of large industrial customers who have seen some of the e-mails say they are evidence of improper influence, with numerous comments about secret intelligence and the need to keep talks quiet. State law sharply restricts utilities from engaging in private conversations on pending matters with regulators.

However, Rogers wrote in his letter to the IURC that he does not believe the e-mails "conclusively evidence" any improper communication.

Posted by Marcia Oddi on Tuesday, March 08, 2011
Posted to Indiana Government

Monday, March 07, 2011

Ind. Gov't. - "Dems threaten to stay away from Indiana House for remainder of session"

Here is the story from Eric Bradner of the Evansville Courier & Press. A quote:

There are now fewer than eight weeks left before the Indiana Constitution's mandated adjournment date of April 29, and Rep. Terry Goodin, D-Austin, said his party might not participate in the remainder of the session.

“We cannot go back and erase 50 years of what our parents, grandparents and great grandparents fought for,” he said. “We will stay out for as long as it takes. If that’s April 29, if it’s May 1, if it’s Dec. 31, I’ll celebrate my birthday here in the chambers.”

"Indiana House Democrats expect to stay in Illinois" is the headline to Mary Beth Schneider's Indy Star story. A quote:
[T]hey could stay out until April 29, the day set in law for the General Assembly to have finished its work.

If they are not done by then, including having passed a new two-year state budget, Gov. Mitch Daniels would have to call them into special session. Daniels has said he’s prepared to keep calling them into special session until they finish work not only on a budget, but on the education reforms that have contributed to the meltdown in the House.

Goodin said Democrats would continue to stay out if the legislature went into special session until they can achieve compromise on the bills they object to.

Posted by Marcia Oddi on Monday, March 07, 2011
Posted to Indiana Government

Ind. Courts - Practitioner questions to COA staff attorneys

If you have a case pending before the Indiana Court of Appeals and have tried to call one of their staff attorneys recently to ask a "quick question," you likely were surprised to find you could no longer chat with the attorneys and instead were informed by the person now taking calls that "staff attorneys will no longer take phone calls and all inquiries need to be by way of motion."

This appears to be a very recent change. Some have said is a significant departure from decades of practice. No formal order has been issued or notice given to the bar and public.

And the change is limited to the Court of Appeals. The Supreme Court staff and Clerk's office continue to informally answer questions.

Fortunately, it turns out to be a policy still under development.

Questions asked of COA staff in the past have varied from those that could/should have been answered by the practitioner taking a look at the court rules or the case docket, to those coming close to ex parte inquiries, e.g. whether the practitioner should strike the opponent's motion.

The Appellate Section of the ISBA has recently become aware of the problems facing the COA and the COA's proposed resolution, and is gearing up a task force to help. Maggie Smith, chair of the section this year, points out that some resources already exist for its section members, such as the section's Appellate Manual, and the "in the process of being activated" Appellate Section listserv. Upcoming may be a wiki or FAQ.

Pro se litigants may find the Court's Self-Service Legal Center especially helpful. The Pro Se Guide to Appeals Procedures is currently under revision.

Some questions still may continue to be appropriate to pose to one of the three Court of Appeals staff attorneys, but there needs to be some way of identifying what are, and what aren't. Danielle Sheff, Deputy Administrator of the Court of Appeals, explained this afternoon:

Because the staff attorneys have always said that they cannot give legal advice and said roughly what we have asked our receptionists to say, I did not realize that the adjustment to our policy would cause consternation.

Your draft captures the tenor of what our receptionists have been asked to say (which loosely boils down to the receptionists explaining that the Court prefers to consider questions presented in Motions served on all parties).

The Administrator and I have told our receptionists that all callers: litigants, attorneys, and concerned public members are to be treated the same.

If anyone has a concern that really cannot be addressed by a motion or someone has a matter of urgency, the receptionists have been instructed that the Administrator, Steve Lancaster, or I will attempt to assist the caller. Truly, the intention is to be as responsive as possible while treating everyone the same.

Questions from readers?

Posted by Marcia Oddi on Monday, March 07, 2011
Posted to Indiana Courts

Ind. Gov't. - Indy launching app for reporting potholes

So reports Francesca Jarosz of the IBJ today. The story says the city has spent $45,000 so far and has been testing for several months. In addition, the app hasn't yet been approved by Apple for inclusion at the iTunes store, which sometimes can take forever.

Here is hoping the City isn't reinventing the wheel, a quick look at the iTunes iPhone apps store reveals at least 40 similar apps, some generalized, but most tuned for specific cities.

[More at 3:27] I just drove past the site of the giant potholes at 16th and Delaware that were the subject of a news report this weekend. There was a crew parked there, filling them! But it looked like they were having to send out for more asphalt.

Posted by Marcia Oddi on Monday, March 07, 2011
Posted to Indiana Government

Ind. Decisions - Two Indiana opinions today from 7th Circuit

From US v. Avila (SD Ind., Hamilton), a 6-page, per curiam opinion:

The issue in this successive appeal is whether the district court on remand could correct a previously undetected factual error in its drug quantity finding that had favored the defendant, Martin Avila. During the first appeal, Avila successfully argued that the district court sentenced him using an offense level that did not correspond to the original drug quantity finding, so we remanded for resentencing. See United States v. Avila, 557 F.3d 809 (7th Cir. 2009). At resentencing, the district judge corrected the understatement in the drug quantity attributable to the defendant, recalculated the guidelines range using the correct offense level, and sentenced him to 365 months’ imprisonment, 31 months below the original sentence. Avila now argues that the district court violated the crossappeal rule by basing the new sentence on evidence that, although part of the original trial record, was not relied upon at the first sentencing hearing. Because the court did not violate the cross-appeal rule and acted within the scope of our remand, we affirm his sentence.
In US v. Brown (SD Ind., Hamilton), an 8-page opinion, Judge Kanne writes:
William Travis Brown was convicted in federal district court of one count of possession of child pornography and one count of transportation of child pornography. The court issued Brown a belowguidelines sentence of 240 months’ imprisonment. Brown appeals his sentence, arguing that the district court improperly applied a sentence enhancement under U.S.S.G. § 2G2.2(b)(3)(B) and that it did not consider the relationship between Brown’s sentence and sentences imposed for other serious sexual crimes against children. We reject Brown’s arguments and affirm his sentence.

Posted by Marcia Oddi on Monday, March 07, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Carl Sonnenberg, et al. v. A.N. Real Estate Services, Inc, et al. (NFP)

Jill M. Baird v. Lake Santee Regional Waste District (NFP)

NFP criminal opinions today (4):

Desmond D. Clayton v. State of Indiana (NFP)

Ricky Renee Patterson v. State of Indiana (NFP)

Thomas William Donaldson v. State of Indiana (NFP)

Seth R. Adkins v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 07, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Home school, voucher bills would affect high school athletics: Officials fear they could result in recruiting by schools"

Here is an interesting legislative story in the Indianapolis Star sports section today, reported by Kyle Neddenriep. It begins:

As a seventh- and eighth-grader, Andrew Kidd played on the football team at Heritage Christian School, developing friendships that he still cherishes almost a decade later.

But his affiliation with Heritage Christian had to end there because he was home schooled. Though there are no restrictions on participation at the middle school level, Kidd wasn't allowed to play on the high school team by Indiana High School Athletic Association rules.

Though it's too late for Kidd, that could soon change. A bill passed through the House Education Committee last month that would allow students who have been home schooled for the previous three years to participate on public school teams in their residing district.

That change and the much-debated voucher bill that would allow public tax dollars to go toward private school tuition could have a significant impact on high school athletics. Those bills will go before full House and Senate votes once Indiana lawmakers convene after a prolonged standoff.

Posted by Marcia Oddi on Monday, March 07, 2011
Posted to Indiana Government

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

Updating earlier ILB entries (the most recent from Jan. 24, 2011), today the Supreme Court has posted this notice - some quotes:

The Indiana Supreme Court’s Committee on Rules of Practice and Procedure is interested in obtaining comments from judges, attorneys and the public as it reviews the process by which out-of-state attorneys may seek temporary admission to practice law in Indiana before administrative agencies. An Administrative agency is a quasi-judicial entity of the executive branch empowered with the authority to direct and supervise the implementation of particular legislative acts. Administrative agencies include the Worker's Compensation Board, Indiana Civil Rights Commission, Indiana Utility Regulatory Commission, or Review Board of the Department of Workforce Development.

Three possible options have been suggested. These options include allowing for temporary admission for out-of-state attorneys to practice before administrative agencies based upon approval by

  1. the Administrative Agency,
  2. the trial court where the agency is meeting, or
  3. the Supreme Court.
In addition to comments on these options, the Court is also welcoming other possible ways of addressing how out-of-state attorneys can practice before administrative agencies.

The possible rule change is being reviewed by the Committee on Rules of Practice and Procedure * * * until May 1, 2011.

Posted by Marcia Oddi on Monday, March 07, 2011
Posted to Indiana Courts

Ind. Gov't. - "Indiana House standoff doesn't have easy fix"

Lesley Stedman Weidenbener's Sunday column in the Louisville Courier Journal yesterday concluded:

So for now, I’m at a loss to see how this standoff ends. Maybe the difference between now and 2001 or any other boycott year is that this time, the party protesting has so little to lose.

In the November election, the Democratic caucus lost 12 seats to Republicans. They’re down to 40 members, the smallest number in my time at the Statehouse, and will be defending seats in 2012 that could be quite difficult to lose, even with the GOP drawing the legislative district maps this year.

So maybe an all-out effort to defend educators and workers — whom Democrats believe are under attack by Republicans — is their best shot at pleasing voters and constituents and winning back some seats in 2012.

But I think there’s a fairly good chance this protest could also backfire, leaving constituents feeling that their representatives have abandoned them and their jobs.

That could be determined by how the standoff ends and which party is the one that gives in.

Posted by Marcia Oddi on Monday, March 07, 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, April 6, 2011:

From Saturday, April 5, 2011:

From late Friday afternoon, April 4, 2011:

Posted by Marcia Oddi on Monday, March 07, 2011
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

[Correction: See the Matthews appeal directly below. It says " * * * trans. pending. The City has petitioned the Supreme Court to accept jurisdiction over the appeal." In other words, the Supreme Court has not yet decided whether to "grant a petition to transfer the case and assume jurisdiction over the appeal."

The same holds true in the March 17th Alrita Morehead v. Duane Deitrich case I flagged earlier today. It was not yet on a transfer list because the Court has not yet decided whether to grant transfer. Transfer is pending. My bad.]

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

Thursday, March 3rd

Next week's oral arguments before the Supreme Court (week of 3/14/11):

Thursday, March 17th

Webcasts of Supreme Court oral arguments are available here.

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

Wednesday, March 9th

Thursday, March 10th

Next week's oral arguments before the Court of Appeals (week of 3/14/11):

Wednesday, March 16th

Thursday, March 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, March 07, 2011
Posted to Upcoming Oral Arguments

Sunday, March 06, 2011

Ind. Gov't. - "Charlie White's case is about much more than indictment"

That is the headline to Matt Tully's column today in the Indianapolis Star. Some quotes:

To fully grasp the importance of the biggest political story of last week, it might be helpful to read the next sentence slowly and out loud:

Secretary of State Charlie White, the man charged with keeping Indiana's elections honest, was indicted Thursday on seven felony counts, three of which center on voter fraud.

When you say the words aloud, the gravity of the charges hits even harder. It makes you realize that this isn't simply a story about another foolish politician getting in trouble with the law. Rather, this is about a politician whose presence in office threatens to taint future elections, including the upcoming municipal primaries.

And when you taint elections, as White plans to do with his selfish and misguided vow to stay in office, you also chip away at one of the most treasured and fundamental elements on which our nation is based.

Simply put, with his previous actions, and by staying in office now, White is taking another swipe at the faith we have in our system of government. He is single-handedly giving residents of Indiana another reason to distrust their government. He is making a mockery of one of the state's most important offices. * * *

Let's be clear about a couple of things: This isn't a partisan issue. And these are not minor infractions. The charges could hardly be more relevant to the job White was elected to do, and the fallout could hardly be more damaging.

He disgraced himself last year. He's tarnishing his office this year. Before long, he's going to stain a series of crucial elections.

Charlie, it's time to quit.

From about midway through a long March 4th Star story by Robert Annis and Mary Beth Schneider:
The whole sorry spectacle was one that Daniels had tried to avoid.

Democrats raised the issue in the campaign, but White won easily over Democrat Vop Osili and Libertarian Mike Wherry.

Sources confirmed to The Indianapolis Star that in December, Daniels urged White not to take office as secretary of state until these charges could be resolved. White refused.

Instead, White was sworn in with the other officeholders in a Statehouse inauguration Jan. 6, insisting to reporters that "I did not commit voter fraud." * * *

Jim Bopp, a Republican National Committee member and a Terre Haute attorney who is representing White in a civil case that Democrats brought challenging his eligibility to take office, defended White's defiance.

"He's entitled to the presumption of innocence just like every other person. I talked to him about it," Bopp said. "I'm confident that this doesn't rise to the level of a criminal offense. * * *

The last statewide officeholder to be indicted in office was Clerk of the Courts Dwayne Brown in 1995, also for using state employees for political work. He refused to step down, but the Supreme Court, which essentially was his boss, stripped him of his duties. Brown eventually was convicted, and that office is no longer an elected position.

Daniels can't strip White of his duties. It's possible no one can -- except White himself, by resigning, or a jury or judge, by convicting him. * * *

Making the situation more complex, [Sen. Ed Delaney, D] said, is the fact that voters were aware -- or at least should have been, given the publicity -- of the accusations against White when they elected him with 57 percent of the vote over the Democrat, Osili.

The Indiana Democratic Party contested those results to the Indiana Recount Commission, where the two Republican members, including Rokita, voted in White's favor, while the one Democrat voted against him. They followed that with a court challenge, now pending in Marion Circuit Court.

At stake: how a replacement would be selected if White resigns or is removed from office.

If White were legitimately elected, Daniels would appoint a successor. Democrats, though, point to another state statute that says that if a candidate is found to be ineligible to serve, the runner-up -- in this case, Osili -- should be certified as the winner.

They claim the Recount Commission should have declared White ineligible to run because he wasn't legally registered to vote when he filed his candidacy in July.

"Essentially, we think that when the statute says a candidate has to be registered to vote by a certain date, that means legally registered to vote," said attorney Bill Groth, who is representing the Democrats in their challenge.

White's indictment could help the Democrats prove he skirted the law.

"Had he been exonerated," Groth said, "we certainly would've had to re-evaluate whether to proceed with the civil case."

Both sides are scheduled to appear in court for a hearing April 6.

From a March 4th WTHR story by Sandra Chapman:
"Charlie should at least step aside temporarily until these charges are ajudicated," said White's predecessor, Congressman Todd Rokita, who says White has lost credibility.

Rokita served as the Chairman of the Indiana Recount Commission when Democrats first filed a complaint of voter fraud against White last year. At that time Rokita sided with White, overriding the complaint 2-1.

"The Recount Commission is an administrative body and it's not equipped, nor should it be, to deal with criminal charges," Rokita said in response to his previous stance.

From a March 3rd WTHR story:
The counts are as follows:

Fraudulent voter registration - Class "D" Felony
2 counts of Perjury - Class "D" Felony
Voting outside of precinct residence - Class "D" Felony
Procuring a fraudulent ballot - Class "D" Felony
Theft - Class "D" Felony
Fraud on a financial institution - Class "C" Felony

Here is a copy of the White indictment.

Here are earlier Charlie White ILB entries. See especially this ILB entry from Nov. 21, 2010, which deals with the "ineligible to serve" issue.

Finally, the April 6th hearing is in Marion Circuit Court. The ILB has obtained a copy of the 38-page Indiana Democratic Party's "Brief in Support of Reversal of Indiana Recount Commission." Access it here. The ILB also would be pleased to post the response.

Posted by Marcia Oddi on Sunday, March 06, 2011
Posted to Indiana Government

Ind. Gov't. - "Session clock ticking at Indiana Statehouse: Budget, redistricting top priority list"

Following up on this entry from March 3rd, Eric Bradner of the Evansville Courier & Press writes today:

That means the earliest the Indiana House might be expected to get back to business is March 14 — more than two weeks after the Senate was due to receive all bills passed by the House, and the House was supposed to start work on bills passed by the Senate.

That would give the General Assembly just seven business weeks to pass a budget, redraw the state's legislative and congressional districts, tackle Daniels' package of education reforms and more before the Indiana Constitution's mandated adjournment date of April 29. * * *

Most pressing is the budget, because state government would shut down July 1 if Indiana's two-year spending plan expires without a new one in place. * * *

The other "must-do" item is redistricting. Each decade, after the U.S. Census results are issued, it's up to state lawmakers to update the House, Senate and congressional district maps.

Because census results were recently issued and were being plugged into the state's map-making computer program, lawmakers are just now able to start work on redistricting.

History suggests it might cause more bickering in the coming weeks and months. In the past, the process has been so contentious that during the last two redistricting years — 1991 and 2001 — it triggered boycotts.

"I think that, as an option, what might be nice is if the leadership in the House and Senate would just agree for the immediate future to come back to work on those two issues so that we get done at least what we are lawfully required to do," Sen. Vaneta Becker, R-Evansville, said on "Lawmakers" on WNIN-PBS9 this week. * * *

"This one certainly is not over yet," said Ed Feigenbaum, a longtime political observer who is publisher of Indiana Legislative Insight.

"We don't know how long it's going to go, how deep the resentment will be, where public support will line up on this, and whether it will totally destroy the leadership of the respective parties."

Here are some ILB observations about the redistricting timetable, repeated from near the end of this Dec. 17, 2010 entry:
Here is what the Indiana Constitution, Article 4, Sec. 5, provides:
Section 5. The General Assembly elected during the year in which a federal decennial census is taken shall fix by law the number of Senators and Representatives and apportion them among districts according to the number of inhabitants in each district, as revealed by that federal decennial census. The territory in each district shall be contiguous.

(History: As amended March 14, 1881; November 6, 1984).

Okay, the "The General Assembly elected during the year in which a federal decennial census is taken" would be 2010. This General Assembly will serve for two years before half the Senators and all the Representatives are up for election again, in 2012.

So this means they have two years to draw the maps, this coming 2011 session, and the 2012 session. And it doesn't have to be done in a regular session, the bills setting out the districts may be passed in a special session.

For instance, in 1991 the redistricting bill didn't pass until the second special session. The ACTS of 1991 (2nd SS), PL 240 is titled (read it carefully) "AN ACT concerning the performance of certain constitutional duties of the general assembly including appropriation, redistricting, and state and local administration relating to appropriations."

(Incidentally, I more wrote about this massive 1991 Act in a Nov. 10, 2010 entry.)

Niki Kelly of the Fort Wayne Journal Gazette also writes about the budget and redistricting today, in a story headed "Key issues may bring conclusion to walkout." A few quotes:

Their deadline is the session’s end, set for April 29, which is still about eight weeks away.

“Slowing down the legislative process for two to three weeks in the grand scheme of things is really not that big of a deal. Nothing is ever lost there,” said Dave Crooks, a former House Democrat with a weekly political talk radio show in southern Indiana. That’s because there is always a legislative maneuver to revive an issue that has supposedly died, such as moving deadlines or transferring provisions to other bills or using an arcane rule to your advantage. * * *

There are hundreds of other bills moving other than the budget and redistricting. But they don’t rise to the critical level.

For instance, Gov. Mitch Daniels is pushing an education package he hopes will reform traditional public schools in the state. And he wants sentencing changes that will save the state money on prisons.

There is a third tier of legislation involving some high-profile social issues, including a crackdown on illegal immigrants, a statewide smoking ban and more abortion regulations.

“I think that as I look at the balance of this session, it is a reasonable conclusion that only those high visibility items will get accomplished,” said Matt Bell, a former Republican representative and now head of the Regional Chamber of Northeast Indiana. “That means a number of economic development incentives and pro-growth policies run the risk of not being enacted.” * * *

Bell pointed out that even those that are saved will have less transparency. There won’t be a lot of time for public hearings and discussion. The moves will be fast.

“It will be more difficult for the public to track what is happening.” he said.

In the end, the big issues could get distilled into three or four behemoth bills, and that makes it harder for legislators to cast votes on specific issues.

Posted by Marcia Oddi on Sunday, March 06, 2011
Posted to Indiana Government

Ind. Courts - Who Said That? More on anonymous postings

Updating this ILB entry from March 3, this one from March 2, and this one from March 1, 2011, Jeff Swiatek of the Indianapolis Star has a lengthy, front-page story today that takes a deeper look at the issues. Some quotes, but there is a lot more in the story:

A Marion County judge in the past few weeks ordered two newspaper-owned websites to hand over identifying information about the authors of pseudonymous online posts.

The rulings came in a defamation lawsuit filed by a former chief executive of Junior Achievement of Central Indiana, who wants the names of the anonymous posters to The Indianapolis Star's and Indianapolis Business Journal's websites in order to sue them for comments they made about him. * * *

One thing is clear in such cases:

The federal Communications Decency Act gives website operators protections against being sued over defamatory comments made by posters.

But equally clear is that courts haven't granted such wholesale protection to the posters themselves.

"They are just as liable as anyone else for their statements," even if made anonymously, said Daniel Byron, an expert on media law at Bingham McHale in Indianapolis. "If it is a false statement that injures someone . . . then, yes, they would be responsible" and open to defamation charges, he said.

Online reader boards are typically full of posts that veer far beyond the bounds of civil discourse: Racial and ethnic slurs. Anti-religious rants. * * *

Although defamation is often easy enough to spot, what muddies the legal waters are journalism shield laws and other protections given to news media outlets to protect them from attempts to expose sources.

The shield laws were written years ago and had in mind the old-fashioned way of sourcing news: direct conversation or correspondence between reporter and source.

With the digital era upon us, courts now have to crack this hard nut: Are the popular, free-wheeling public comment boards that news outlets run also part of their legitimate news-gathering efforts?

The Star thinks so. * * *

The Star hasn't turned over the sought-after identities of the posters on its website and hasn't said whether it will appeal the judge's ruling. The IBJ has turned over the information. A third media outlet, WRTV (Channel 6), is still fighting a subpoena in Miller's case.

And this is interesting:
Kevin Goldberg, legal counsel for the American Society of News Editors, said many media outlets see value in going to battle over being forced to release names of anonymous posters, even they rack up costly legal bills.

"The nature of news is changing. More and more, we are seeing these people (anonymous posters) really are becoming sources" of legitimate news and information, he said.

Newspapers and other news outlets don't want that source of information to dry up under the threat of defamation suits. * * *

A minority of newspapers sidestep the sticky issue by banning anonymous posters to their websites. The biggest to do so was the Buffalo News last year.

"We became more and more concerned about the tone of some of the comments," said Margaret Sullivan, editor of the New York newspaper, which has a daily circulation of 178,000. "You got all kinds of nasty, really hateful kinds of things."

What the News found was that axing anonymity in favor of real-name-only comments led to "much higher-level comments," she said.

One drawback: There are many fewer of them. The News has approved 3,700 people to comment on its site, and they pipe up on the comment boards far less often than under the old system.

Even so, said Sullivan, "while the volume is down significantly, quality went up, and I'll take that any day. We are really pleased."

Posted by Marcia Oddi on Sunday, March 06, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Law - More on: School vouchers and the Indiana constitution

Updating this March 1, 2011 ILB entry, Tracy Warner, editorial page editor of the Fort Wayne Journal Gazette, has a long opinion piece today that begins:

Indiana’s constitution unequivocally establishes a right for Hoosiers to have guns.

In language that seems equally precise, the state constitution prohibits tax money from going to churches. Yet parochial schools would undoubtedly get students – and state money – under a controversial proposal to offer vouchers for students to attend private schools.

While the U.S. Supreme Court has ruled vouchers do not violate the U.S. Constitution, many state constitutions have additional restrictions.

“I think it’s clearly unconstitutional,” William P. McLauchlan, an associate professor of political science at Purdue University, said of the voucher proposal. He is the author of several books about Indiana’s constitution, including an upcoming release from Oxford University Press as part of a series on state constitutions.

Other legal experts aren’t so certain, and still others flatly disagree. A voucher law would almost certainly end up in the hands of the Indiana Supreme Court.

There, the five Indiana justices ought to kill the law.

Public tax money for schools should not go to churches, and that includes church schools, which often operate as a ministry of the church.

But the experience in Indiana and other states suggests a court decision could go either way.

Posted by Marcia Oddi on Sunday, March 06, 2011
Posted to Indiana Law

Ind. Decisions - "Imprisoned South Bend man fights judicial system"

Jeff Parrott of the South Bend Tribune has this lengthy story today, subheaded "Man cries foul because one judge exerts more control over sentences than others do." Here is a sample, but you'll need to read the whole story:

[St. Joseph Superior Judge Jerome] Frese ordered [Tracy] Hertel, 50, to serve an unspecified number of those 20 suspended years in prison "as a condition of probation."

In other cases, Frese has called such a sentence "The Frese Special." Frese declined to be interviewed for this story, but in other cases, the judge has said ordering prison as a condition of probation allows him more control over an inmate's rehabilitation.

Under Indiana statute, up until one year after sentencing, a judge has discretion over whether to grant post-conviction petitions for sentence modifications. After a year, the judge still has that discretion, but the prosecutor must agree that a sentence modification request deserves a hearing in order for it to even reach the judge.

But a judge does not need a prosecutor's consent to change terms of probation.

"It seems like a way of extending the judge's ability to determine the offender's length of sentence," said Ryan Scott, associate professor at the Maurer School of Law at Indiana University Bloomington. "He's on rock-solid legal ground."

Scott and other legal experts said they know of no other judge in the state who orders such sentences, but they are allowed by Indiana statute.

Indiana appellate courts also have affirmed the legality of "The Frese Special."

Larry Landis, executive director of the Indiana Public Defenders Council, said he thinks it could have some value in giving an offender an incentive to behave in prison and do things to better himself while there.

"A lot of judges would just give a guy 20 years executed, so compared to an executed sentence, this gives a person an incentive toward rehabilitation ... they can see a future. But if they have a 20-year sentence and they have to do 10 (with day-for-day good time credit), it's pretty easy just to sit there and mope and do nothing, do dead time."

But Landis also sees negatives.

"The downside is there is probably no set criteria on what you have to do to get out of this limbo ... such as get your GED or receive substance abuse counseling ... then it could be cruel to say, 'I might modify your sentence but I'm not going to tell you what you have to do for me to modify' ... it gets a little arbitrary."

Posted by Marcia Oddi on Sunday, March 06, 2011
Posted to Ind. Trial Ct. Decisions

Saturday, March 05, 2011

Ind. Decisions - Transfer list for week ending March 4, 2011

Here is the Clerk's transfer list for the week ending March 4, 2011. It is one page (and 16 cases) long.

No transfers were granted for the week ending March 4, 2011.


Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the January 11, 2011 list.

The ILB archive now contains over 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, March 05, 2011
Posted to Indiana Transfer Lists

Law - "MERS? It May Have Swallowed Your Loan"

The ILB has had a number of entries on MERS, the Mortgage Electronic Registration.

Today the NY Times has this story, by Michael Powell and Gretchen Morgenson. A quote:

But a piece of that world survives on Library Street in Reston, Va., where an obscure business, the MERS Corporation, claims to hold title to roughly half of all the home mortgages in the nation — an astonishing 60 million loans.

Posted by Marcia Oddi on Saturday, March 05, 2011
Posted to General Law Related

Law - Another concern for prospective big-law 1st year associates? And others too?

"Armies of Expensive Lawyers, Replaced by Cheaper Software" is the headline to this NY Times story by John Markoff. Some quotes:

“From a legal staffing viewpoint, it means that a lot of people who used to be allocated to conduct document review are no longer able to be billed out,” said Bill Herr, who as a lawyer at a major chemical company used to muster auditoriums of lawyers to read documents for weeks on end. “People get bored, people get headaches. Computers don’t.” * * *

Software is also making its way into tasks that were the exclusive province of human decision makers, like loan and mortgage officers and tax accountants.

These new forms of automation have renewed the debate over the economic consequences of technological progress.

David H. Autor, an economics professor at the Massachusetts Institute of Technology, says the United States economy is being “hollowed out.” New jobs, he says, are coming at the bottom of the economic pyramid, jobs in the middle are being lost to automation and outsourcing, and now job growth at the top is slowing because of automation.

Here is more from the lengthy article; it may make you catch your breath:
E-discovery technologies generally fall into two broad categories that can be described as “linguistic” and “sociological.”

The most basic linguistic approach uses specific search words to find and sort relevant documents. More advanced programs filter documents through a large web of word and phrase definitions. A user who types “dog” will also find documents that mention “man’s best friend” and even the notion of a “walk.”

The sociological approach adds an inferential layer of analysis, mimicking the deductive powers of a human Sherlock Holmes. Engineers and linguists at Cataphora, an information-sifting company based in Silicon Valley, have their software mine documents for the activities and interactions of people — who did what when, and who talks to whom. The software seeks to visualize chains of events. It identifies discussions that might have taken place across e-mail, instant messages and telephone calls.

Then the computer pounces, so to speak, capturing “digital anomalies” that white-collar criminals often create in trying to hide their activities.

For example, it finds “call me” moments — those incidents when an employee decides to hide a particular action by having a private conversation. This usually involves switching media, perhaps from an e-mail conversation to instant messaging, telephone or even a face-to-face encounter.

“It doesn’t use keywords at all,” said Elizabeth Charnock, Cataphora’s founder. “But it’s a means of showing who leaked information, who’s influential in the organization or when a sensitive document like an S.E.C. filing is being edited an unusual number of times, or an unusual number of ways, by an unusual type or number of people.”

There is much more.

In a side-bar: Play Rock-Paper-Scissors against a computer. The article notes:

A truly random game of rock-paper-scissors would result in a statistical tie with each player winning, tying and losing one-third of the time. However, people are not truly random and thus can be studied and analyzed. While this computer won't win all rounds, over time it can exploit a person's tendencies and patterns to gain an advantage over its opponent.

Posted by Marcia Oddi on Saturday, March 05, 2011
Posted to General Law Related

Friday, March 04, 2011

Ind. Decisions - More on "COA rules against judge's decision on testimony in child molesting case"

With respect to the ILB entry this morning on the COA decision last month in the case of State of Indiana v. Andy J. Velasquez, II, which quoted Laura Lane's good story from the Bloomington H-T, a reader has sent this note:

Interesting. I have been licensed since 1988 and did not know that such appeals could be taken. It would seem to be black letter law that there is not case or controversy and the court admits the matter is moot.

Apparently the court allows the legislature to expand its jurisdiction beyond what most believe to be a basic jurisdictional threshold.

The ILB has asked IU-Indy Law Prof Joel Schumm if he could provide some analysis.
Schumm's answer: Mosley v. State (J. Boehm opinion 2009) includes this spot-on paragraph:
It is true that moot cases are ordinarily dismissed. Hill v. State, 592 N.E.2d 1229, 1230 (Ind. 1992) ("We do not provide advisory opinions."); State ex rel. Goldsmith v. Super. Court of Marion County, 463 N.E.2d 273, 275 (Ind. 1984) (same). But that is not always the case. The jurisdiction of federal courts is limited by Article III of the federal constitution to "cases and controversies," and that language has long been taken to prohibit advisory opinions. See U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446, 113 S. Ct. 2173, 124 L. Ed. 2d 402 (1993); Flast v. Cohen, 392 U.S. 83, 96-97, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968); Muskrat v. United States, 219 U.S. 346, 361, 31 S. Ct. 250, 55 L. Ed. 246, 46 Ct. Cl. 656 (1911); Hayburn's Case, 2 U.S. 409, 409, 1 L. Ed. 436, 2 Dall. 409 (1792). The Indiana Constitution has no comparable limitation on "the judicial power of the State" conferred on the courts by article 7, section 1 of the Indiana Constitution. This Court can, and does, issue decisions which are, for all practical purposes, "advisory" opinions. Ind. Dep't of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 336-37 (Ind. 1994). Indeed, on occasion we have issued opinions with no case before us. See, e.g., In re Judicial Interpretation of 1975 Senate Enrolled Act No. 441, 263 Ind. 350, 350-53, 332 N.E.2d 97, 97-99 (1975) (deciding, sua sponte, that legislation setting judicial examination standards and giving lay judges limited criminal jurisdiction was unconstitutional).
Schumm continues: The legislature has created a mechanism for prosecutors to challenge unfavorable rulings that result in acquittals. Double jeopardy prevents a retrial, but the guidance could be useful in the future (especially if a judge is ruling on the same issue in future cases). I'm sure the court got very good briefs from the lawyers in this case (Joby Jerrells and Tom Schornhorst.)

Unfortunately, sometimes no one files an appellee's brief. If someone is acquitted and can't be retried, why pay a lawyer to defend an appeal that makes no difference to the individual? With briefs from just one side, some less-than-ideal law can be made.

Posted by Marcia Oddi on Friday, March 04, 2011
Posted to A teaching moment | Ind. App.Ct. Decisions

Ind. Law - SCOTUS will look at hearing two petitions arising from the planned special election to fill a vacant seat in the United States Senate belonging to Illinois

SCOTUSblog has this post, highlighting two petitions re 7th Circuit decisions, up for consideration today by the SCOTUS, both involving filling vacant U.S. Senate seats.

Posted by Marcia Oddi on Friday, March 04, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

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

Posted by Marcia Oddi on Friday, March 04, 2011
Posted to Ind. App.Ct. Decisions

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

The 4-page opinion is In re: Rich Bergeron, on a petition for writ of mandamus to the USSD, SD Ind., Judge Barker.

Judge Posner writes:

Rich Bergeron asks us to remove the judge presiding in Eppley v. Iacovelli, a case pending in the district court. Bergeron had repeatedly asked her, without success, to recuse herself. * * *

We need to distinguish between Bergeron’s desire that the district judge be removed from Eppley v. Iacovelli and his desire that she be removed from the contempt proceeding. * * *

So the cleanest remedy against the creation of an appearance of judicial bias is to seek the judge’s removal as soon as the appearance materializes, hopefully before trial. That is why we won’t order a new trial unless the party complaining of the appearance of bias seeks mandamus, e.g., United States v. Diekemper, supra, 604 F.3d at 352; it is far better to correct the problem by ordering recusal in advance than by ordering a new trial. “If a party is deprived of his substantial rights in a trial before an actually biased judge the harm can be remedied (though not costlessly) by a new trial before an unbiased judge. But the harm to the public’s perception of the judicial system when a judge who appears to be biased proceeds in a case is more difficult to correct. Prevention in such circumstances is clearly preferable to attempts to cure.” United States v. Balistrieri, 779 F.2d 1191, 1205 (7th Cir. 1985). Because a district court’s denial of recusal is not an appealable order, the requester is allowed to seek mandamus from the court of appeals in lieu of appealing. Id.

Although he asked us for mandamus before Judge Barker concluded the contempt proceeding by her award of sanctions to Eppley, Bergeron did not ask us to stay the proceeding in the district court and we did not, and now it’s too late for us to order the judge removed from the case, because she’s through with it. We could order a do-over of the contempt proceeding were this an egregious case of apparent bias, as the Supreme Court considered Liljeberg to be; but the appearance of impropriety in this case is too attenuated to justify that extraordinary remedy. The petition for mandamus is therefore denied.

Posted by Marcia Oddi on Friday, March 04, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Suit against NCAA now in court in Indy"

The Indianapolis Star is reporting:

A federal lawsuit challenging the NCAA's rules on college scholarships for student-athletes across the country has landed in federal court in Indianapolis.

The suit, filed in a San Francisco court in October by former Rice University football player Joseph Agnew, was moved this week to the U.S. District Court for the Southern District of Indiana. The court sits in Indianapolis, the hometown of the National Collegiate Athletic Association.

Agnew challenges NCAA rules that prohibit colleges from negotiating guaranteed four-year grants-in-aid to recruit high school athletes. He claims the rules amount to price-fixing.

Here is the case:
1:11-cv-00293-JMS-MJD Agnew v. National Collegiate Athletic Association
Jane Magnus-Stinson, presiding
Mark J. Dinsmore, referral
Date filed: 03/02/2011
Date of last update: 03/03/2011
Here is the 18-page complaint.

The Star's Bruce C. Smith had a longer story yesterday.

Posted by Marcia Oddi on Friday, March 04, 2011
Posted to Indiana Courts

Ind. Decisions - "COA rules against judge's decision on testimony in child molesting case"

This ILB summary from Feb. 22, 2011 says only:

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)."
Today Laura Lane of the Bloomington Herald Times has a good story ($$$) on the decision. Here are a few quotes:
It’s been more than a year since Andy Velasquez was acquitted of two counts of child molesting after allegations made by an 8-year-old girl who drew a stick-figure picture for jurors illustrating what she said the 27-year-old man did to her.

After the trial, the prosecutor’s office vowed to challenge Monroe Circuit Judge Teresa Harper’s decision to not allow a psychologist, a social worker and the girl’s grandmother to testify about her demeanor, claims of sexual abuse and her assertion that Velasquez threatened to kill her if she told anyone.

In a recent 23-page opinion, the Indiana Court of Appeals ruled that Harper should have allowed testimony from the three women during the trial. Velasquez already has been found not guilty of the charges, so they cannot be refiled for a second trial with the witness testimony.

Later in the story, Bob Miller, Monroe County chief deputy prosecutor, is quoted as saying:
“The point of this kind of appeal is to provide guidance for trial courts for future cases,” he added. “We can’t change the outcome of this case, but the decision does provide legal authority for future child molesting cases across the state.”

Posted by Marcia Oddi on Friday, March 04, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Gov. Beshear signs corrections overhaul measure"

From the Louisville Courier Journal, Jessie Halladay reports today in a story that begins:

FRANKFORT, Ky. – A bill hailed as a bi-partisan effort to control the soaring costs of Kentucky’s corrections system while providing better treatment options for drug offenders was signed into law Thursday by Gov. Steve Beshear.

“It enables the state to continue to be tough on crime, but enables us to be smart about it,” Beshear said before signing the measure that experts predict will save about $42 million a year, about half of which will be reinvested in treatment programs and probation and parole efforts.

The law passed the House and Senate with only one dissenting vote in the House.

The final product was the result of months of work by a seven-member task force representing the judicial, executive and legislative branches of state government. * * *

The task force was provided support from the Pew Center on the States, which worked with the group to formulate ideas. The effort was supported with $200,000 from the state budget.

Indiana's bill, SB 561, substantially modified from the introduced version, is awaiting consideration in the House.

Posted by Marcia Oddi on Friday, March 04, 2011
Posted to Indiana Government

Courts - "Judiciary Promises More Budget Cuts"

That is the headline to this March 3, 2011 story in the New York Law Journal, reported by Joel Stashenko, that begins:

ALBANY - The judiciary promised the cash-strapped state government to make an additional $100 million in budget cuts yesterday—economies that Chief Judge Jonathan Lippman predicted would cost some court employees their jobs.

"We are going to need layoffs here," the chief judge said in an interview after announcing that the courts would cut from the $2.7 billion budget proposed in December. "We're not talking about a large system of layoffs of 2,000 people. But whether it will be 25, 50, 150 or 200, I just don't know."

Judge Lippman said employees who work in courtrooms or back-office workers who support courtroom functions would be protected from cuts. But he said there are "loads" of court administrators and others in jobs that do not affect courtroom operations whose positions could be sacrificed.

Yesterday's comments were the first time the courts have raised the possibility of layoffs.

The courts employ about 15,200 non-judicial workers, approximately 1,100 less than three years ago. But the cuts in payroll have been achieved through early retirements coupled with a hiring freeze.

Governor Andrew M. Cuomo last month criticized the Judiciary for "not participating" in his efforts to close a budget gap of around $10 billion in the year that begins April 1.

Posted by Marcia Oddi on Friday, March 04, 2011
Posted to Indiana Courts

Ind. Gov't. - "Pressure Mounts on Absent Democrats "

That is the headline to a story in today's WSJ.

Posted by Marcia Oddi on Friday, March 04, 2011
Posted to Indiana Government

Ind. Gov't. - Charlie White: Hoosier Daddy?

A reader writes this morning:

If you watch Kim King's Fox59 report last evening, you'll hear her refer to attorney Dennis Zahn as Charlie's father . . . and after that, she even shouted at him something like, "You're his father, how do you feel about the charges?" All that in the first 15 seconds . . .
Here is the clip.

Another reader points out that Dennis Zahn, White's counsel, also represented then-Court Clerk Dwayne Brown.

"White should hand in resignation" is the heading to an Indianapolis Star editorial this morning.

Yesterday's ILB entry is here.

Posted by Marcia Oddi on Friday, March 04, 2011
Posted to Indiana Government

Thursday, March 03, 2011

Ind. Courts - "Brizzi Disciplinary Complaint Moves Forward: Briefs Filed In Misconduct Case"

So reports 6News reporter Derrik Thomas. See the story here.

The story also includes links to: (1) the Hearing Officer's report containing findings of fact and conclusions of law for the Hearing Officer's consideration, filed Feb. 26, 2011; along with (2) the post-hearing brief filed by the Disciplinary Commission contemporaneous with the Hearing Officer's report; and (3) the brief in support of Carl Brizzi's proposed findings of fact, conclusions of law, and recommendation to the court, filed Feb. 25, 2011.

Posted by Marcia Oddi on Thursday, March 03, 2011
Posted to Indiana Courts

Courts - "Ray Charles could see that signature was doctored"

According to this AP story, Pennsylvania state Sen. Jane Orie, R-Allegheny, 49 "and her sister, Janine Orie, 56, are charged with conspiring to use the senator's staff to do campaign work for a third sister, Joan Orie Melvin, who was elected to the state Supreme Court."

The trial was halted today while the jury was deliberating, amidst charges of altered documents. The Ray Charles quote is an exclamation from the judge in the trial. See all three of the stories linked in this entry by Pa. attorney Howard Bashman in his How Appealing blog.

[More] Here is the story, with don't miss photos, one particularly Shakespearean.

Posted by Marcia Oddi on Thursday, March 03, 2011
Posted to Courts in general

Courts - Standard of review decides cases

Interesting article by Mark Hermann in Above the Law.

Posted by Marcia Oddi on Thursday, March 03, 2011
Posted to Courts in general

Ind. Gov't. - "Secretary of State Charlie White indicted"

Everyone anticipated this on election day in November. The question was, would he have taken office before it happened, thereby ensuring a "vacancy" that the Governor would fill?

Robert Annis' report posted a few minutes ago in the Indianapolis Star begins:

The state’s top election official will face seven felony counts, including voter fraud, perjury and theft, a special prosecutor said today.

Secretary of State Charlie White was accused of intentionally voting in the wrong precinct during the May 2010 primary, a potential felony.

If ultimately convicted of a felony, White would have to give up the position that he won by a wide margin over Democrat Vop Osili in November’s election.

For background, start with this ILB entry from Jan. 7, 2011.

[More] Rebecca S. Green of the Fort Wayne Journal Gazette has posted this story, detailing the seven felony counts. A snippet:

The theft charge involved taking money in payment from the town of Fishers when he knew he was not authorized to represent the town on the council, having moved from the district, D.J. Sigler said.
Here is the statement from the Govenor:
“This news is sad and regrettable, but the only course of honor is for Mr. White to step down from his duties, at least during the duration of these proceedings until a verdict is reached. It would be neither credible nor appropriate for the state’s top elections official to continue to perform his duties while contesting criminal charges, some of them under the very laws the Secretary of State implements. I have consulted with each of the other statewide elected officials and our judgment about this is unanimous.”

Posted by Marcia Oddi on Thursday, March 03, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

Indiana Association of Beverage Retailers, Inc. v. Indiana Alcohol and Tobacco Commission, et al. is a suit by the package liquor stores ass'n about the Commission's issuance of new beer dealer permits. The most interesting part of the opinion to the ILB was footnote 7, beginning on page 20, relating to "legislative acquiescence":

Both the Commission and the Retail Council have asserted, and the trial court found, that legislative acquiescence applies to the Commission's interpretation of Indiana Code section 7.1-3-22-4. Legislative acquiescence, however, does not apply here as there has been no previous judicial interpretation of Section 4 by our appellate courts. See Fraley v. Minger, 829 N.E.2d 476, 492 (Ind. 2005) (“[I]t is well-established that a judicial interpretation of a statute, particularly by the Indiana Supreme Court, accompanied by substantial legislative inaction for a considerable time, may be understood to signify the General Assembly's acquiescence and agreement with the judicial interpretation.”). Error notwithstanding, we affirm the trial court's denial of the preliminary injunction. See Lakes and Rivers Transfer v. Rudolph Robinson Steel Co., 795 N.E.2d 1126, 1133 (Ind. Ct. App. 2003) (“To the extent that [a] judgment is based on erroneous findings, those findings are superfluous and are not fatal to the judgment if the remaining valid findings and conclusions support the judgment.”).
In Eddie M. Taylor v. State of Indiana , a 13-page opinion, with appellant represented by counsel, Judge Mathias writes:
On appeal, Taylor claims that he was denied his Sixth Amendment right to counsel when the trial court granted Taylor's request to proceed pro se. We affirm. * * *

We can only conclude that Taylor was not denied the right to counsel. He clearly and unequivocally expressed his desire to represent himself, and the trial court adequately advised him of the dangers and disadvantages of self representation. Yet Taylor still chose to proceed pro se. When Taylor changed his mind on the day before the scheduled trial, the trial court continued the trial and appointed Taylor counsel. And Taylor was represented by his appointed counsel during trial and at sentencing. Therefore, even if we agreed with Taylor that he had not waived his right to counsel, he fails to explain how the subsequent appointment of counsel to represent him at trial and sentencing was not an adequate remedy.

NFP civil opinions today (1):

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

NFP criminal opinions today (3):

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

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

State of Indiana v. Danny Leflore (NFP) - "The State of Indiana appeals from the trial court’s denial of its motion to use pre-trial statements of witnesses who had been excluded. The State presents one issue for our review: Did the trial court abuse its discretion in excluding witnesses’ pre-trial statements where the unavailability of the witnesses may have been procured by Danny LeFlore (the accused)? We reverse and remand. * * *

"Having reviewed the record before us, we find that the trial court erred by failing to consider the State’s argument regarding forfeiture of the right of confrontation. We therefore reverse the ruling of the trial court and remand with instructions that the trial court hear the State’s evidence and make a determination as to whether LeFlore’s conduct rendered the witnesses unavailable for cross-examination and thus, whether LeFlore forfeited his right to confrontation."

Posted by Marcia Oddi on Thursday, March 03, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Pull the plug on the session?

The word is that because of the upcoming BIG 10 Mens' Tournament here next weekend, resulting in a lack of legislator hotel rooms during the big event, the General Assembly has been planning to adjourn next Wednesday the 9th of March and not reconvene until March 14th.

So if the Democratic walkout continues much longer, the session, which must adjourn by law the end of April, is shot -- there are simply not enough work days.

Eric Bradner of the Evansville Courier & Press tweets:

"I'd say we're getting pretty darn close" to having to pull the plug on this session, GOP House Speaker Brian Bosma says on WFYI.

If Dems hold out through Wednesday, Republicans will have to start talking about adjourning sine die and calling a special session.

Posted by Marcia Oddi on Thursday, March 03, 2011
Posted to Indiana Government

Ind. Courts - "Rulings could chill online expression"

Updating this ILB entry from March 2, 2011, Mikel Livingston of the Lafayette Journal Courier has this story today. Here are some quotes from the start of the lengthy article:

A pair of recent court rulings out of Marion County could have widespread ramifications for news media outlets and the readers and viewers who post on their online forums.

In separate rulings, Marion County Superior Court Judge Scherry "S.K." Reid ruled that the Indianapolis Star and the Indiana Business Journal must turn over identifying information for Internet users who posted anonymous comments on online forums run by those news outlets.

Specifically, the posters criticized Jeffrey Miller, former chief executive of Junior Achievement of Central Indiana. Miller filed a defamation lawsuit last year and is attempting to include those who criticized him online in the list of defendants.

The Indiana Business Journal has turned over the requested information while the Indianapolis Star has refused. A ruling on whether Indianapolis-based news station WRTV also must turn over information about people who submitted comments to its website is expected this week.

It's the first time in Indiana that a judge has ruled that news media can be ordered by the court to reveal identifying information about those who post on online forums.

The ILB has been able to obtain a copy of Judge Reid's brief Order Compelling Non-Party Discovery against the Indianapolis Star.

Posted by Marcia Oddi on Thursday, March 03, 2011
Posted to Indiana Courts

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

Updating this ILB entry from Feb. 26th, Sophia Voravong has a story today in the Lafayette Journal Courier that begins:

The mother of a Tippecanoe County Jail inmate turned herself in Wednesday afternoon on accusations that she and her son's attorney conspired to smuggle him a cell phone and charger.

Rachel M. Rodriguez, 50, of Calumet City, Ill., and the attorney, Shante P. Henry, 35, of Merrillville were charged Feb. 17 in Tippecanoe Superior Court 1 with conspiracy to commit trafficking with an inmate and two counts of trafficking with an inmate.

The charges were unsealed last week.

Henry represented Rachel Rodriguez's son, 27-year-old Jarrod E. Rodriguez of Hammond, during an armed robbery bench trial last September in Tippecanoe Superior Court 2.

Posted by Marcia Oddi on Thursday, March 03, 2011
Posted to Indiana Courts

Ind. Gov't. - Two outside looks at midwest union/education battles

From NPR this morning, Mara Liasson of Morning Edition had this report - audio to be available at 9 am. The premise:

The move by Republican governors to get rid of public sector unions' collective bargaining rights isn't just a response to runaway pension obligations on the part of state governments. It's also a way to defund one of the Democratic parties most important interest groups.
From Nick Anderson of the Washington Post, a story headed "Midwest union battles highlight debate over improving schools." A quote:
Here, Daniels is seeking to capitalize on the Republican rout in last fall's elections to enact a sweeping education package that melds many of Obama's fix-it ideas with a few of his own. The governor dismisses union criticism that he is anti-teacher.

"I've been praising teachers and public education and trying to support it relentlessly for six years," the governor said. "It does no good. When you cross the union, you're the enemy."

Posted by Marcia Oddi on Thursday, March 03, 2011
Posted to Indiana Government

Environment - More on: Wood-fired outdoor boilers rule up for final adoption Wed. by the Indiana APCB

Updating this ILB entry from Feb. 27, 2011 and this long list of entries dating back to 2005, Eric Weddle of the Lafayette Journal & Courier reports today, in a story incorrectly headed "Indiana Department of Environmental Management approves rules for wood furnaces":

Starting this spring, outdoor wood-burning boilers will be regulated by the state. On Wednesday, an Indiana Department of Environmental Management board voted unanimously to approve final adoption of new rules during a public meeting at Tippecanoe County Public Library in downtown Lafayette.
ILB: Of course, it wasn't IDEM that approved the rule it has proposed, but rather the separately appointed Indiana Air Pollution Control Board. More from the story:
More than 50 people, some from across the state, crammed into a library meeting room for the hearing. Some gave impassioned pleas to increase the scope of the regulations because of health or living issues they said were caused by pollution pouring from neighbors' boilers.

Others said boilers, if properly used, should not intrude on neighbors and were a cost-effective way to heat a home.

Jim Donnelly of LaPorte said he wanted rules to stipulate particle levels allowed to emit from the boilers. That didn't happen.

"IDEM had six years to figure it out, and they put out a weak rule," said Donnelly, who contacted IDEM in 2005 about the issue. "If you have smoke coming at somebody, there should be a way to make those people stop.

"This falls short of protecting people's health. There is no real way of regulating."

An amendment to create a nuisance provision promoted by the Hoosier Environmental Council and Improving Kids Environment failed. Another amendment expanding the months some heaters cannot be operated passed.

The regulation also limits what can be burned in the device to wood or other approved renewable solids. Particleboard, garbage, manure and other items are forbidden under the rules. * * *

Here are some highlights of the rules, which could go into effect within the next 90 days or soon after.

# Newly installed units must be qualified to meet lower emission levels, or Phase 2 emission requirements as outlined by the federal Environmental Protection Agency.

# Existing units may not be operated between May 1 and Sept. 30, unless they are 300 feet or more away from the nearest occupied building on a different property.

# Existing units that do not meet the emission limit must have a permanent stack extending five feet higher than the peak of any roof structure within 150 feet of the unit. This requirement would have to be met by Nov. 30.

Posted by Marcia Oddi on Thursday, March 03, 2011
Posted to Environment

Wednesday, March 02, 2011

Ind. Decisions - "Legal loophole cuts prison sentence in half for intoxicated driver"

That is the headline given to this Fox59 story by Vanessa McClure posted this afternoon. Some quotes:

The morning of November 9th, 2004, 24-year-old Kate Comiskey was on her way to teach at Eagle Creek Elementary when another car slammed into hers and killed her. The other driver, Mitch Gooldy, was behind the wheel and high on drugs. Gooldy pleaded guilty to Operating a Vehicle While Intoxicated Resulting in Death, which is a 10-year sentence. He also pleaded guilty to being a habitual offender, with a record of previous drug convictions, adding another 10 years to the sentence.

But now, that sentence is being cut in half.

"He spends 6 1/2 years researching while my wife and I try to honor our daughter. He's spending those 6 1/2 years getting out of prison," said Steve.

Gooldy found a mistake during his researching. He was never eligible to be charged as a habitual offender because state lawmakers had changed the definition before his trial. It no longer included substance abuse charges. Gooldy had pleaded guilty to something he didn't qualify for. It was an error no one caught back in 2005. This winter though, prosecutors took up the appeal.

"Our options were ultimately two: fight the petition, which would likely have resulted in his entire guilty plea being set aside; or agree to remove the habitual offender finding and sentence, which is what we did after consulting with the victim's family," said Bob Miller with the Monroe County Prosecutor's Office.

The county threw out the Habitual Offender charge. Gooldy is down to just a 10-year sentence which means in just three years, he will be a free man.

Posted by Marcia Oddi on Wednesday, March 02, 2011
Posted to Ind. Trial Ct. Decisions

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

Updating this ILB entry from Feb. 28th, the USDC for the SD Ind. has now posted a press release announcing:

the selection of Denise K. LaRue for the position of United States Magistrate Judge. She will fill a new magistrate judgeship created for the Southern District of Indiana by the Judicial Conference of the United States. Magistrate judges preside over pretrial proceedings in both civil and criminal cases in federal court. A critical component of the position is conducting mediation and settlement proceedings in civil cases, helping parties settle their disputes by agreement.
The press release also gives some insight into the selection process for magistrate judges, as least those here:
A Magistrate Judge Merit Selection Committee chaired by John Trimble, a partner at Lewis Wagner, LLP, reviewed 44 applications and recommended five candidates for the position. The District Judges of the court interviewed the five candidates and unanimously selected Ms. LaRue. * * *

Regarding the selection, Chief Judge Richard L. Young commented, “The Merit Selection Panel recommended five excellent candidates. We are very pleased that Denise LaRue, with her strong background in litigating civil matters in federal court, will be joining our court family. We are certain that she will be a valuable addition to the bench.”

United States Magistrate Judges are appointed by the Judges of the U.S. District Court for a term of eight years and are eligible for reappointment to successive terms. Ms. LaRue’s appointment will be effective upon completion of required IRS and FBI background investigations.

ILB: The selection process as described is notable for its lack of transparency. Applicants names are not made public, the interviews were not open. But perhaps this is reasonable because this is more an employee selection process.

Posted by Marcia Oddi on Wednesday, March 02, 2011
Posted to Indiana Courts

Law - What lawyers earn, really

This pointer from the Law Librarian Blog begins:

ABAJ's first installment of a periodic series is reporting on the geography of lawyer salaries, "showing where the jobs are and what they pay." This not some cursory journalistic exercise. The data being reported was producted by William Henderson of the Center for the Global Legal Profession at Indiana University’s Maurer School of Law.
And here it is, the March 2011 ABA Journal cover story by Rachel M. Zahorsky. Don't miss.

And it is interactive. You can check out, for instance, Marion County IN ...

Posted by Marcia Oddi on Wednesday, March 02, 2011
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

County Council of Porter County v. Northwest Indiana Regional Dev. Authority, et al. - "In summary, in view of the nature and scope of the RDA’s purpose, the fact that Porter County was automatically made a member of the RDA at its creation, and the fact that there is no provision in the RDA Act authorizing Porter County’s withdrawal, we conclude that Porter County did not have a right to withdraw from the RDA."

The Gary Post Tribune has a brief story here. The Chesterton Tribune has a lengthy story here.

National Wine & Spirits v. Indiana Alcohol & Tobacco Comm. (IATC) - Affirms trial court's dismissal of National Wine's petition for lack of standing, concludes:

As noted by the trial court in its findings and conclusions thereon dismissing National Wine’s petition on the basis of standing, and by the IATC in its brief, if, after issuing a permit, the IATC determines that a permittee has failed to disclose prohibited interests, is engaged in illegal trade practices, or has otherwise violated the terms of its permit or Indiana law, then the IATC is empowered to revoke or refuse to renew the permits issued. See e.g., Ind. Code Ann. § § 7.1-2-3-4 (general powers of commission); (rules and regulations); 7.1-2-3-10 (investigations; revocation actions); 7.1-2-3-12 (searches and seizures); 7.1-2-3-19 (regulation of records); 7.1-2-3-22 (regulation of business relationships); and 7.1-2-3-31 (implied powers). Thus, National Wine has recourse to the IATC should its fears regarding Southern Wine’s trade practices come to fruition.
NFP civil opinions today (2):

Joni Shaw v. Covenant Care Waldron Home LLC (NFP)

Indiana Spine Group, P.C. v. Hardigg Industries (NFP)

NFP criminal opinions today (9):

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

Tauheedah Williams v. State of Indiana (NFP)

Michael Thompson v. State of Indiana (NFP)

Brian Beaman v. State of Indiana (NFP)

Kenneth Carson v. State of Indiana (NFP)

Steven Sanders v. State of Indiana (NFP)

Valdez Leshawn Reed v. State of Indiana (NFP)

Justin Floyd v. State of Indiana (NFP)

Tommy A. Watson, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 02, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: Responsibility of IndyStar and Ind.Bus.Journal to provide identities of readers who posted comments?

I know from my email that there is a lot of interest from attorney-readers in seeing Marion Superior Court Judge S.K. Reid's rulings re Jeffrey Miller's efforts "to broaden the list of defendants in his case to include people who criticized him anonymously last year on websites run by The Indianapolis Star, Indianapolis Business Journal and WRTV (Channel 6)," as the Indy Star story phrased it, as well as the motions.

I've sent requests out to the court and Miller's counsel, but no response yet...

Posted by Marcia Oddi on Wednesday, March 02, 2011
Posted to Indiana Courts

Courts - SCOTUS decides for protesters in funeral protest case

Per SCOTUSblog: "09-751 Snyder v. Phelps. Chief Justice Roberts wrote for the Court. The decision rules that the First Amendment shields those who stage a protest at the funeral of a military service member from tort liabililty."

Here is background.

[More] Here is coverage from the AP.

Posted by Marcia Oddi on Wednesday, March 02, 2011
Posted to Courts in general

Ind. Courts - Robing ceremony of Indiana Tax Court Judge Martha Blood Wentworth set for Tuesday, March 8th

From a press release:

Indiana Tax Court Judge Martha Blood Wentworth’s formal robing ceremony will take place in the Supreme Court Courtroom, State House 3rd Floor at 10:30 a.m. on Tuesday, March 8, 2011. Judge Wentworth took her seat as judge of the Indiana Tax Court on January 17, 2011.

Judge Wentworth was appointed to the position by Governor Mitch Daniels on December 22, 2010. She was one of the three candidates presented to Governor Daniels by Indiana’s seven-member Judicial Nominating Commission. She succeeds Judge Thomas G. Fisher who retired in January.

Posted by Marcia Oddi on Wednesday, March 02, 2011
Posted to Indiana Courts

Ind. Gov't. - "GOP move on school vouchers could thaw Statehouse boycott"

It looks like this AP report yesterday morning by Deanna Martin may have presented the opportunity the Democrats were looking for to try to bring a difficult situation to a close. But it is still touch and go, given the egos involved.

Eric Bradner reported very early this morning in the Evansville Courier & Press:

INDIANAPOLIS — The leader of the Democratic boycott of the Indiana House now says it could be "a matter of days" before his party returns from Illinois, in large part because Republicans are willing to make changes to a private school voucher bill.

The praise House Minority Leader Patrick Bauer, D-South Bend, offered to his counterpart — House Speaker Brian Bosma, R-Indianapolis — could be a sign of progress in a stalemate that has shut down the chamber for eight days.

The two have not spoken directly since Monday morning, but Bauer said he has been reading Bosma's comments to news media and said he was pleased to learn that the Republican leader had deemed worthwhile a handful of the amendments Democrats have proposed. * * *

Bosma said neither he nor Gov. Mitch Daniels, whose education reform agenda is on the line, is negotiating with the missing Democrats and will meet only with lawmakers who are in the building.

"If they want to show up here and talk about issues, my door is always open," Bosma said.

But he did say both Monday and Tuesday that the House would consider changes to the voucher program to target eligibility — which currently would extend to families that earn $81,000 per year — more heavily toward low-income Hoosiers and also to cap the program's total size.

WISH TV is now reporting:
URBANA, Ill. (WISH) - Indiana House minority leader Pat Bauer has left Urbana, Ill. For a meeting in Indianapolis while the rest of the Democratic caucus stayed behind.

Our reporter in Urbana tells us Bauer will arrive for negotiations around 11:30 a.m.

Posted by Marcia Oddi on Wednesday, March 02, 2011
Posted to Indiana Government

Ind. Law - "Indiana's proposed immigration crackdown draws fire"

Carrie Ritchie and John Tuohy of the Indianapolis Star report today in a lengthy story that:

Indiana's proposed immigration law -- which would be one of the toughest such laws in the nation -- took hits Tuesday on two fronts.

Calling Senate Bill 590 a waste of resources, Marion County Prosecutor Terry Curry announced that he had joined about 2,600 people in signing a petition to encourage state lawmakers to leave immigration reform to the federal government.

Blow two? The Indianapolis Convention & Visitors Association, which also opposes the bill, acknowledged that one convention scheduled for Indianapolis this summer has said it will pull out if the bill passes and that a second said it would no longer hold conventions in Indiana if the bill becomes law. * * *

Jerry Powell, president of Resource Recycling, based in Portland, Ore., runs multiple conferences a year, including one scheduled in Indianapolis in August.

He said he couldn't pull the conference out of Indianapolis this summer because of legal and financial obligations with the JW Marriott, but he said that he would never hold another conference in Indiana again if the immigration bill passes.

His conferences, one of which is being held this week in New Orleans, attract about 1,200 attendees. He said about 50 attendees in New Orleans are Hispanic, and he would expect a similar number at the Indianapolis conference.

"I'm not going to have them harassed by an ethnicity filter," Powell said. "It is a stupid law."

Posted by Marcia Oddi on Wednesday, March 02, 2011
Posted to Indiana Law

Ind. Gov't.- "Boycott traditionally used as potent political weapon "

Another history of legislative boycotts story today, supplementing and expanding upon those quoted in this Feb. 26, 2011 ILB entry.

Eric Bradner of the Evansville Courier & Press writes this story, with vivid details of the legendary 1925 Democratic walkout, which required the intervention of the Grand Dragon of the Ku Klux Klan to bring it to a close.

Posted by Marcia Oddi on Wednesday, March 02, 2011
Posted to Indiana Government

Courts - Other Circuits join 7th in posting arguments online

We may be spoiled here in the 7th Circuit, where audio versions of oral arguments have been available online for as far back as I can remember right now.

Michelle Olsen of Appellate Daily writes that progress is being made in the addition of other circuits to the list; with the addition of the 4th Circuit, effective May 2011, the tally will be 8 of the 13 circuit courts with audio of arguments online.

Posted by Marcia Oddi on Wednesday, March 02, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on: Responsibility of IndyStar and Ind.Bus.Journal to provide identities of readers who posted comments?

As I wrote in this entry yesterday, this a case where the newspapers have been sued to give up the identities of the third-party posters, rather than a case asking that the newspapers be held liable for comments posted by third parties.

Jeff Swiatek's story, linked in that entry yesterday, is still available and should be read in conjunction with today's revised and expanded Indianapolis Star story. Some quotes:

In rulings this week and last week, Marion Superior Court Judge S.K. Reid became the first judge in Indiana to rule on whether the state journalism shield law protects media outlets from being forced to disclose names of anonymous posters on their websites or other identifying information about those posters, said Kevin Betz, an attorney for Jeffrey Miller, former chief executive of Junior Achievement of Central Indiana.

The rulings came in a defamation lawsuit Miller filed last year. He is seeking to broaden the list of defendants in his case to include people who criticized him anonymously last year on websites run by The Indianapolis Star, Indianapolis Business Journal and WRTV (Channel 6). * * *

All three Indianapolis media outlets fought the subpoenas served on them to turn over identifying information about posters to their sites.

The judge ruled that The Star and IBJ must turn over the identifying information, which typically tells a poster's Internet protocol address or Internet provider. Using that, an attorney can subpoena the Internet provider for the poster's real name. * * *

The IBJ has already turned over the information Miller sought, Betz said.

The posters identified include Kelsey Hanlon, described as a former staffer at Junior Achievement; James Leagre, who is called a friend of Junior Achievement's current chief executive; and Dave Wilson, vice president of corporate sponsorship for the 500 Festival Associates.

500 Festival Associates also was added as a defendant in the defamation claim, on the grounds that the defamatory comments supposedly traced to Wilson were sent on one of its computers. * * *

"This is not an assault on the shield law," Betz said. "In fact, it is well within the bounds of the traditional terms of the shield law. I don't think the media should be interested . . . in protecting the identities of cyberbullies. I don't think these people are advancing any cause of democracy or purposeful free speech.

Posted by Marcia Oddi on Wednesday, March 02, 2011
Posted to Ind. Trial Ct. Decisions

Tuesday, March 01, 2011

Ind. Decisions - "Seventh Circuit Reaffirms High School Students’ Rights to Wear 'Be Happy, Not Gay' T-Shirts"

The case, out of Illinois, is Zamecnik v. Indian Prairie School Dist. #204. Prof. Eugene Volokh writes about it here today in the Volokh Conspiracy. A quote from Volokh:

So it’s a mild win for student speech in K-12 schools, though given Tinker any broader wins would be unlikely.
See also this ILB entry from Feb. 22, 2009, mentioning both Tinker and the 7th Circuit's decision in Hosty v. Carter.

Note that tomorrow, March 2, 2011:

High school students from around the state will gather at the Indiana Statehouse to attend the First Amendment Symposium on March 2.

The fifth annual symposium, hosted by the Indiana High School Press Association, celebrates the freedoms guaranteed by the First Amendment.

The event will last from 4 to 7 p.m. in the North Atrium, a location IHSPA Executive Director Diana Hadley calls “a neat place to celebrate the First Amendment.” * * *

The event includes a different keynote speaker every year. Past speakers include Indiana Gov. Mitch Daniels and Mary Beth Tinker, who is known for the 1969 Supreme Court case Tinker v. Des Moines. The case set a standard for students’ First Amendment rights.

John Krull, director of the Pulliam School of Journalism and former executive director of the Indiana Civil Liberties Union, will speak at the event this year.

Posted by Marcia Oddi on Tuesday, March 01, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Signs of movement in legislative impasse?

Updating this ILB entry from earlier today, quoting an AP story reporting potential narrowing of the school vouchers bill, Niki Kelly of the FWJG has just tweeted: "House Democrat Leader Pat Bauer says there is positive movement on voucher bill. Hopes walkout ends in 'only a matter of days.'"

Posted by Marcia Oddi on Tuesday, March 01, 2011
Posted to Indiana Government

Ind. Courts - Court article reaffirms budget mandate authority of local judges

An article today on the Indiana Courts website, from the Indiana CourtTimes, a publication of the court, appears to reaffirm the power of local judges, when necessary, to mandate the compensation of their employees. A sample:

Court employees are not county employees, despite receiving a W-2 from the county, working in a county-owned building, and using the county healthcare plan. They are also not regular state employees. They are public employees of the judiciary, also known as judicial or judicial circuit employees.

Article 3, § 1 of the Indiana Constitution establishes that the judiciary is an independent state power separate from the legislative and the executive departments. The judges of appellate courts, circuit courts and superior courts are constitutional officials of the state, not of the counties. As set forth in Woods v. Michigan City, 940 F.2d 275, 279 (7th Cir. 1991):

Indiana law reveals that judges of Indiana’s circuit, superior and county courts are judicial officers of the State judicial system: they are not county officials. Pruitt v. Kimbrough, 536 F.Supp. 764, 766 (N.D.Ind.), aff’d 705 F.2d 462 (7th Cir.1982). County courts in Indiana are exclusively units of the judicial branch of the state’s constitutional system. Id. Also see Parsons v. Bourff, 739 F.Supp. 1266 (S.D.Ind.1989), and State ex rel. McClure v. Marion Superior Court, 239 Ind. 472, 158 N.E.2d 264 (1959).
As either elected or appointed constitutional state officials, each judge in Indiana has the power to select staff for the judge’s own court, and each judge has the power to fire court staff without review or approval by any other body. Without this power, the judiciary would not be a truly independent department or branch of government. Along with the power to hire and fire is the power to set terms and conditions of employment.

The principle of the right of the judiciary to set its own terms and conditions of employment has been repeatedly addressed in Indiana. 1963 OAG No. 42 was written in response to an inquiry as to whether a statute regulating city employees applied to employees of the city judiciary. Attorney General Edwin K. Steers determined that the legislature did not intend that executive branch powers should be extended to control of court officers and employees, and that responsibility for court staff rests with the judge of the court. The opinion relied on the case of State ex. rel Bailey v. Webb, 21 N.E. 2d 421, 422-23 (1939).

This fundamental principle was repeated more recently in the case of State v. Monfort, 723 N.E.2d 407, 411 (Ind. 2000). The Court wrote:

The judiciary is one of the three co-equal branches of government and its independence is essential to an effective running of the government. See Board of Comm’rs v. Stout, 136 Ind. 53, 58-59, 35 N.E. 683, 685 (1893) (Courts are an integral part of the government, and entirely independent; deriving their powers directly from the constitution, in so far as such powers are not inherent in the very nature of the judiciary.)

In particular, it has been held in a variety of contexts that the legislature cannot interfere with the discharge of judicial duties, or attempt to control judicial functions, or otherwise dictate how the judiciary conducts its order of business.

Despite the Constitutional provision and the clear case law upholding the principle of judicial independence, the question of court versus executive authority continues to arise, particularly at the county level.
See also my article: "Separation of Powers in the County Courthouse," 49 Res Gestae 2 (Sept. 2005), pp. 17-19.

Posted by Marcia Oddi on Tuesday, March 01, 2011
Posted to Indiana Courts

Ind. Courts - Responsibility of IndyStar and Ind.Bus.Journal to provide identities of readers who posted comments?

Jeff Swiatek has just posted an interesting story on the Indianapolis Star website. Some quotes:

The former chief executive of Junior Achievement of Central Indiana is broadening a defamation lawsuit he filed last year to include people who criticized him anonymously on news media-run websites.

A Marion County judge has ruled that Jeffrey Miller must be given names or other information that would help him to identify the writers of online comments posted last year anonymously on the Web sites of The Indianapolis Star and Indianapolis Business Journal.

The two news organizations had resisted Miller’s legal efforts to force them to turn over information, such as the internet protocol address, that would help Miller identify the posters.

The rulings this week and last week by Superior Court Judge S.K. Reid are the first time an Indiana judge has ruled on the issue of whether the state journalism shield law protects media outlets from being forced to disclose names, or other identifying information they hold, of anonymous posters on their Web sites, said Kevin Betz, an attorney for Miller. * * *

Betz said Miller has a right to seek the names of people if they defamed him with online comments, even if done anonymously.

The online statements that Miller considers defamatory include the accusation that he committed “most likely a criminal act,” a description of him as “the most greedy man I’ve ever known,” and a comment saying “somebody needs to call the state’s attorney general and investigate him,” according to the lawsuit.

Dennis Ryerson, editor and vice president of The Star, wouldn’t comment on the judge’s ruling beyond saying: “We now are reviewing our legal options.”

The ILB would like to post copies of Judge Reid's opinions - let me know if you can help.

[More] It appears that this is not a case asking that the newspapers be held liable for comments posted by third parties, but rather a case where the newspapers are being sued to give up the identities of the third party posters. For background take a look at this ILB entry from April 28, 2010, this entry from March 22, 2010, and and also at this list of entries (read these in reverse order).

Posted by Marcia Oddi on Tuesday, March 01, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Law - School vouchers and the Indiana constitution

Scott Elliot of the Indianapolis Star reported yesterday under the heading "Will state's top court settle school vouchers?." Some quotes from the lengthy story:

Even before it became ensnared in the legislature's political standoff, a bill that would allow parents to use public dollars to send their children to private schools had begun to stir debate over an important question: Is it constitutional? * * *

The conventional wisdom in the legal community is that House Bill 1003 most definitely would not violate the U.S. Constitution; that issue was generally resolved in a 2002 case involving a school voucher program in Cleveland.

What's not so clear, however, is whether it violates Indiana's constitution. * * *

The legal debate in Indiana is based on two sections in the state constitution. One centers on the state's provisions establishing public schools as tuition-free and open to all. The other is the state's language on the separation of church and state, language that legal scholars say goes beyond what the U.S. Constitution requires.

Indiana's constitution includes a direct prohibition on state aid to religious institutions: "No money shall be drawn from the state treasury, for the benefit of any religious or theological institution." * * *

"Probably most of the private schools would be religious schools," said Nate Schnellenberger, president of the Indiana State Teachers Association. "In effect, it would be a government subsidy for religious schools. We think that's wrong."

That was a central issue in the Cleveland case before the U.S. Supreme Court, which ruled vouchers are constitutional, in great part because parents have a choice -- they don't have to choose religious-affiliated schools. Even in Cleveland, where nearly all families used vouchers for religious schools, the court found they had other choices, such as magnet schools and charter schools. As long as parents made the choice among a variety of options, the program was constitutional, the justices ruled.

That case set an important precedent, but it's not an open-and-shut issue. In states with language close to Indiana's, state courts have cited those provisions in striking down voucher programs.

That's what happened in Arizona in 2009. Its constitution forbids public money to be "appropriated to any religious worship exercise or instruction or to the support of any religious establishment."

Still, voucher supporters in Indiana are confident. They argue that Indiana case law has strongly favored allowing public dollars to flow to religious institutions as long as it is for a purpose and not simply to "benefit" them.

For example, in the 2004 case Embry v. O'Bannon, the Indiana Supreme Court allowed a program that paid teachers for certain courses taught at parochial schools.

Posted by Marcia Oddi on Tuesday, March 01, 2011
Posted to Indiana Law

Courts - "'Dynamic' duo of Kagan, Sotomayor add vigor to court"

So reports Joan Biskupic in USA TODAY in an interesting story that begins:

WASHINGTON — After each Supreme Court appointment in recent years, the arguments before the justices have gotten more energetic and forceful. Now, the two newest justices, Sonia Sotomayor and Elena Kagan, are changing that dynamic even further — and offering a glimpse of how they could reshape the court's liberal wing.

Sotomayor is far more talkative than was David Souter, the justice she succeeded. Yet she also is asking more pointed questions that reveal her thoughts on the law and her fact-based approach. "Slow down from the rhetoric and give me concrete details," she urged one lawyer.

Kagan jumps in more regularly, too, than the man who preceded her, John Paul Stevens. She immediately has developed a pattern of piercing questions. Stevens would sometimes gently suggest a point of view, but Kagan more directly lets her colleagues know her line of reasoning and often lays out the liberal viewpoint.

Posted by Marcia Oddi on Tuesday, March 01, 2011
Posted to Courts in general

Ind. Gov't. - Texting ban; school vouchers

"Indiana Senate panel OKs texting ban despite worries" is the heading to this WTHR story this noon, with video.

"Indiana private school voucher bill faces changes" is a Deanna Martin AP report posted mid-morning by WISH TV. A quote:

[O]ne of the Republican proposals Democrats consider most onerous is a voucher bill that would use taxpayer money to help parents send their children to private school. But House Speaker Brian Bosma, R-Indianapolis, said that bill is likely headed for major changes regardless of the Democrats' ongoing boycott of the House, where Republicans hold a 60-40 majority.

To win solid support for the bill from his own caucus, Bosma said Republicans are considering limiting the number of students who could receive vouchers and may further restrict qualifying income levels so that vouchers are directed to more needy students. Currently the bill includes no cap on the number of students who can participate, and families of four making up to $81,000 a year could receive a scholarship to a private school. That income limit is lower than the original proposal, which would have allowed families of four making more than $100,000 to receive vouchers.

Bosma predicted the voucher bill could pass the House with about 55 votes, but only after amendments are adopted.

"It's going to take some changes," he said.

Nearly 50 amendments have been filed on the voucher bill, most by Democrats, and Bosma said the House would likely adopt some Democratic amendments that make sense. However, adopting amendments — or conducting any House business — requires a quorum, and the Democrats' boycott has prevented that from happening.

The vouchers bill is HB 1003.

Posted by Marcia Oddi on Tuesday, March 01, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Auto-Owners Insurance Company v. Gary Hughes , an 11-page opinion, Judge Bradford writes:

Appellant/Defendant Auto-Owners Insurance Company appeals following the entry of judgment in favor of Appellee/Plaintiff Gary Hughes on his contract claim in the amount of $166,792.83. Auto-Owners contends, inter alia, that the trial court erred in denying its summary judgment motion on the basis that Hughes's suit was barred by a one-year limitation in the relevant insurance policy. We reverse and remand with instructions. * * *

The question before us today is whether principles of equity and fairness create a limited duty to provide a copy of an insurance policy when the insured has requested one following a loss such that failure to discharge that duty would prevent an insurance company from asserting noncompliance with policy terms as a defense in subsequent litigation. We have little trouble answering in the affirmative, as has every other court that has addressed this question. * * *

We therefore conclude that, following a loss, an insurer must provide a copy of an insurance policy to the insured upon request or be estopped from raising noncompliance with policy terms as a defense in subsequent litigation. * * *

Hughes has failed to establish that a genuine issue exists as to whether Auto-Owners discharged its duty to provide him or his agent with a copy of the Policy upon request. Consequently, the trial court erred in denying Auto-Owners's second summary judgment motion on the basis that Hughes failed to bring suit within one year of the loss, as required by the Policy. We reverse and remand with instructions to enter summary judgment in favor of Auto-Owners.

In James and Nancy Taylor v,. Ford Motor Co., et al. , a 12-page opinion, Judge Mathias writes:
James and Nancy Taylor filed a negligence claim in Marion Superior Court against Arthur Adams (“Adams”), Automotive Components Holdings, LLC (“ACH”), and Ford Motor Company (“Ford”) (collectively “the Defendants”). The trial court subsequently granted the Defendants' motion to dismiss for lack of subject matter jurisdiction. The Taylors appeal and argue that the trial court did have subject matter jurisdiction. We affirm.
NFP civil opinions today (2):

A.K. and Jeffry G. Price v. K.K. (NFP)

Denise Tinsley v. Marion T., LLC, et al. (NFP)

NFP criminal opinions today (2):

Tyson G. Keplinger v. State of Indiana (NFP)

Barry L. Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 01, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - Indiana Voter ID Law topic in Nebraska

The Lincoln Nebraska Journal Star had a story yesterday by Kevin O'Hanlon about a voter ID law proposal in that state. Here is the part of intertest:

[O]pponents of the measure (LB239) say it would disenfranchise some voters -- particularly the poor, the elderly and minorities -- who do not have driver's licenses by making them pay the $26.50 the state charges to issue a photo ID.

They say requiring people to buy a state ID in order to vote would amount to an illegal "poll tax." * * *

The state now brings in some $875,000 from the 33,000 IDs it sells each year. The bulk of the money goes to the state. A

A later section of the story begins:
Janssen's bill is similar to a voter ID law in Indiana -- where the state gives out free ID cards -- which was upheld by the U.S. Supreme Court in 2008.

Posted by Marcia Oddi on Tuesday, March 01, 2011
Posted to Indiana Law

Courts - SCOTUS continues parsing confrontation clause

SCOTUSblog today has a good roundup of articles on yesterday's SCOTUS decision in Michigan v. Bryant (ILB entry here).

In addition, see this entry from Joan Biskupic's Supreme Court Blog that begins:

Justice Scalia lost it Monday in Michigan v. Bryant. As the majority ruled that a gunshot victim’s dying words to police could be used at trial against the alleged shooter, Scalia erupted. “[T]oday’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative … at least where emergencies and faux emergencies are concerned.”
And Lyle Denniston of SCOTUSblog wrote last evening on an oral argument set for Wed. in Bullcoming v. New Mexico. It is a long entry, here is how it starts:
The Supreme Court has been working its way through a series of sequel cases since its landmark ruling in 2004 in Crawford v. Washington declared that prosecutors may not constitutionally put before a jury at a criminal trial an out-of-court statement if the witness who made it cannot take the stand, unless the statement was tested earlier by something equivalent to cross-examination. It has not been an easy judicial task: just this week, Justice Antonin Scalia — the most fervent supporter of the Crawford principle — lashed out bitterly in dissent when the majority created a new exception to this Sixth Amendment confrontation right, in Michigan v. Bryant.

Now, the Court is about to confront what seems like the simplest of sequel issues: if a written piece of evidence (here, a crime lab report) is to be offered in evidence to help prove guilt, who must be called to the witness stand to be questioned about it? Treating the author of such a lab analysis as the accuser, for Sixth Amendment confrontation purposes, the Court is being asked to decide whether a substitute witness — someone else on the lab’s staff — can stand in for the actual accuser. But there is another way to look at the issue: if a machine in the lab is actually the accuser, does it make a constitutional difference which lab analyst, familiar with the machine and how it works, takes the stand?

Posted by Marcia Oddi on Tuesday, March 01, 2011
Posted to Courts in general