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Friday, April 29, 2011

Ind. Law - "Indianapolis lawyer tapped as death-penalty expert at Guantanamo trial"

Carol Rosenberg of McClatchy Newspapers has the report. A quote:

Indianapolis attorney Rick Kammen, who's handled more than a dozen federal and state death-penalty trials, got the appointment approved by retired Navy Vice Adm. Bruce MacDonald on Wednesday in a letter. Kammen is now authorized to travel to the remote base in southeast Cuba at Pentagon expense to help defend accused war criminal Abd al Rahim al Nashiri.
Richard Kammen is also one of David Camm’s attorneys; see ILB entry here.

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Indiana Law

Ind. Gov't. - Daniels says "I will sign" strict abortion bill [Updated]

From his press release:

I will sign HEA 1210 when it reaches my desk a week or so from now. I supported this bill from the outset, and the recent addition of language guarding against the spending of tax dollars to support abortions creates no reason to alter my position. The principle involved commands the support of an overwhelming majority of Hoosiers, as reflected in greater than 2:1 bipartisan votes in both legislative chambers.

I commissioned a careful review of access to services across the state and can confirm that all non-abortion services, whether family planning or basic women’s health, will remain readily available in every one of our 92 counties. In addition, I have ordered the Family and Social Services Administration to see that Medicaid recipients receive prompt notice of nearby care options. We will take any actions necessary to ensure that vital medical care is, if anything, more widely available than before.

Any organization affected by this provision can resume receiving taxpayer dollars immediately by ceasing or separating its operations that perform abortions.

[Updated at 6:13 PM] Here is Eric Bradner's story for the Evansville C&P.

Here is Mary Beth Schneider's story for the IndyStar.

And Lesley Stedman Weidenbener's long story for the LCJ.

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Indiana Government

Ind. Gov't. - Updating: Conference committee reports

Updating this earlier entry, CCRs now filed on both gun and immigration bills. Senate Minority Leader Vi Simpson tweets:

'Take your gun to library and park' bill just passed Rules Co. Watch your children!
BYW, I just tried to make sense of the gun bill CCR, and if the intent of this legislation is to simplify firearms laws, they have certainly failed here!

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Indiana Government

Ind. Courts - "Five Republican groups sued in Durham bankruptcy"

Carrie Ritchie is reporting in the Indianapolis Star in a story that begins:

Five Republican political organizations have been sued because they haven't returned donations from Tim Durham and his business partners.

The bankruptcy trustee for Ohio-based Fair Financial, the company authorities claim Durham used to run a Ponzi scheme, filed the lawsuits Wednesday in federal bankruptcy court in Ohio.

The lawsuits allege that the five organizations -- Indiana House Republican Campaign Committee, Greater Indianapolis Republican Finance Committee, Marion County Republican Central Committee, Committee to Elect (Lawrence Mayor) Paul Ricketts and Committee to Elect (House Speaker) Brian Bosma -- owe a combined total of more than $141,500.

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 7 today (and 10 NFP)

For publication opinions today (7):

In Joni Gabriel v. Loretta Gabriel, a 19-page opinion, Judge Baker writes:

This case illustrates the importance of utilizing professionals, memorializing purported understandings between the parties, and properly “keeping the books” of a business. Unfortunately, we know all too well from our experience as judicial officers, that many individuals conduct their business affairs in the manner in which the parties have in this instance.

Appellant-respondent/intervenor Joni K. Gabriel (Joni), the personal representative of the Estate of Eugene A. Gabriel, Jr., (Tony) appeals the trial court’s judgment in favor of appellee-petitioner Loretta Gabriel (Loretta), the personal representative of the Estate of Eugene A. Gabriel, Sr., (Gene). Specifically, Joni argues that the judgment cannot stand because the evidence demonstrated that: a) the doctrine of laches precluded Loretta from asserting a claim of stock ownership in Gabe’s Pizza, a family corporation; b) the six-year statute of limitations barred Loretta’s cause of action; and c) the trial court erroneously determined that she was required to prove a transfer of stock through a writing signed by Gene. Finally, Joni maintains that the trial court should have declared Loretta incompetent to testify as to matters that related to Tony’s estate pursuant to the Dead Man’s Statute.

We conclude that the trial court properly determined that Loretta’s action was not barred and that the evidence supported the findings and conclusions that Gene had not transferred the stock to Tony. However, we reverse the trial court’s determination regarding the ownership of the stock and the percentage of the estate that is to be distributed to Loretta and the remaining heirs. On remand, the trial court is instructed to hear further evidence, if necessary, and to make additional findings as to the distribution of the estate.

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions.

In Edwin Blinn, Jr. v. The Law Firm of Johnson, Beaman, Bratch, Beal and White, LLP, a 12-page opinion, Judge Barnes concludes:
Assuming the doctrine of collateral estoppel did not bar the filing of the new complaint, the statute of limitations did. Because the original action against the Firm was voluntarily dismissed, the Journey's Account Statute does not save it. We affirm.
In Steven A. Coppolillo v. Anthony Cort, an 11-page opinion, Sr. Judge Barteau writes:
Thus, there is at best a dispute of fact as to whether Coppolillo engaged in wrongdoing when he ended his relationship with Zuncor. Furthermore, it is undisputed that Coppolillo did not benefit from his alleged abandonment of Zuncor, because he lost his investment in the corporation. Thus, Cort is not entitled to summary judgment pursuant to the doctrine of unclean hands.
In Kevin A. Griffin and Maureen O. Griffin, et al. v. George E. Simpson, Team Indiana Volleyball, Inc., et al. , a 14-page opinion, Judge Crone writes:
This case involves an eleven-year-old volleyball player who was injured when she was thrown from a golf cart during a six-hour break between tournament sessions. The accident occurred at the home of a teammate‟s grandparents, where several team members had gathered to pass the time between volleyball games.

The player, B.G., and her parents, Kevin A. and Maureen O. Griffin (collectively, “the Griffins”), filed a personal injury action against the grandparents/property owners George E. and Sharon A. Simpson (“Mr. and Mrs. Simpson”), volleyball mothers Stacey Simpson (“Stacey”) and Sally Nihill, volleyball team coach Becky Murray, and Team Indiana Volleyball, Inc. (“TIV”), as Coach Murray‟s employer. TIV and Coach Murray filed a motion for summary judgment alleging that, as a matter of law, Coach Murray owed no duty to B.G. during the time that the team was on break between tournament sessions. The trial court agreed and granted TIV and Coach Murray‟s motion. The Griffins now appeal. Finding no error, we affirm.

In Thomas J. Tarrance v. State of Indiana

Aaron R. Nichols v. State of Indiana

Rodney Nicholson v. State of Indiana

NFP civil opinions today (5):

John Pagorek v. Adrienne Garippo and Jimmy Warren (NFP)

City of Mitchell, Indiana, et al. v. Steven Blair (NFP)

Construction Labor Contractors, Inc. v. Masiongale Electrical-Mechanical, Inc. (NFP)

Paternity of E.W.; L.W. v. C.M. (NFP)

R.W. v. Review Board (NFP)

NFP criminal opinions today (5):

Brent Sims v. State of Indiana (NFP)

Timothy Rene Warren v. State of Indiana (NFP)

Amy Whitaker v. State of Indiana (NFP)

Simon Shulkin v. State of Indiana (NFP)

Robert Arnold v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS justices planning to stay put

Mark Sherman of the AP reports that no justices are planning to retire this year. But see this in the long story:

A prominent law professor, Randall Kennedy of Harvard Law School, is hoping that Ginsburg reconsiders and that she is joined by Justice Stephen Breyer. Breyer said recently he has given no thought to retirement.

It's Kennedy's view that the two justices should take one for the team - those who share their liberal-leaning judicial philosophy.

Kennedy fears that if Obama loses his re-election, chances are a Republican president would get to appoint their replacements.

The WSJ Law Blog also takes note of the Kennedy article, in an entry headed "We Love You, Ruth, But Could You Kindly Step Aside."

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Courts in general

Ind. Gov't. - What is in the final version of HB 1001? [Updated]

Here is a summary of the final budget bill proposal, provided by Speaker Bosma's office.

A copy of the CCR is here.

Oddly, the HB 1001 site no longer shows links to filed conference committee reports, which I'm sure it did earlier. (Or I may be losing it!)

[Updated at 3:07 PM] Okay, CCRs back, but with different signatories ...

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Indiana Government

Ind. Courts - "Legislature votes to eliminate judicial retirement age of 70"

Dan Carden of the NWI Times reports:

The House and Senate agreed Thursday to eliminate the mandatory retirement age for Indiana Circuit and Superior Court judges.

Under current law, a judge of those courts must retire at the end of the term in which he or she turns 70 years old.

Senate Bill 463, which now goes to the governor, permits Circuit and Superior Court judges to continue serving for as long as they are elected or retained by the voters.

The provisions re Johnson County Superior Court were dropped from the bill. See this ILB entry from April 18th.

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Indiana Courts

Ind. Gov't. - "Outlook gloomy for tool to help broke local governments"

Dan Carden of the NWI Times reports:

The sponsor of legislation giving financially distressed local governments a tool to avoid bankruptcy is pessimistic it will be approved in the waning hours of the 2011 legislative session.

State Sen. Ed Charbonneau, R-Valparaiso, said Thursday that Senate Bill 105 is "in limbo" and "there's not much likelihood" it will pass. * * *

The House removed a provision allowing a local government to file for bankruptcy if the emergency manager failed to improve the unit's financial condition.

Charbonneau tried to restore that component during a House-Senate conference committee Wednesday that ended with most committee members finding other reasons to oppose the plan.

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Indiana Government

Ind. Gov't. - "The Campaign Waiting for Mitch Daniels"

A long, interesting story today by Erin McPike in Real Clear Politics. It begins:

After Indiana's legislature gavels to a close today, Mitch Daniels will enter the final phase of his decision-making process about whether to run for the presidency in 2012. But unlike some of the contenders who decided against a run in part because it takes a lot to build one from scratch, Daniels could stroll several blocks out of his Statehouse office, flip on the light switch and the campaign would be right there waiting for him (much like Jon Huntsman will have in Washington when he gets home this weekend).

With more than three decades in politics behind him, the governor has done more than develop a Rolodex he could deploy for fundraising, as most point out. The campaign operative in him also has built an organization ready to go whenever he tells them to -- and the media doesn't seem to know it yet. For the past year, he's been playing its members like piano keys as he orchestrates his national rollout.

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Indiana Government

Ind. Gov't. - Conference committee reports

Conference committee reports have not been filed, as of this writing, on several controversial bills, including SB 590, immigration, and SB 292, guns in public buildings (preemption of local firearm regulation). The General Assembly must adjourn by midnight tonight.

House Rule #164 provides:

164. Time on Members’ Desks.

164.1 During the first regular session, conference committee reports shall be laid over for twenty-four (24) hours after filing.

164.2 During the first regular session, the budget bill shall be laid over for twenty-foue(24) hours after filing. This rule may not be suspended without a two-thirds (2/3) vote of the members of the House.

Senate Rule #86 provides:
86. (a) Each report of a conference committee for the adjustment of differences between the Senate and House, together with a digest of the bill and the changes made, shall be reduced to writing, signed by the appointed conferees, reviewed by the Majority Attorney and Minority Attorney, filed with the Office of the Principal Secretary at least eight (8) hours before action is taken thereon, and distributed to the Senators at least four (4) hours before action is taken thereon.
[More] See this story from today's FWJG, authored by Vivian Sade, that begins:
Proposed legislation that would strip local government of its ability to ban guns at public places like parks and libraries has some Allen County Library Board members and the director up in arms. * * *

Senate Bill 292 would pre-empt local firearm regulation. City and county governments could not regulate in any matter involving carrying, possessing or transporting firearms or ammunition.

Exempted from the law would be schools and any public buildings with courtrooms.

But, Krull said, that leaves libraries – where groups of children often gather for reading clubs, field trips and other activities.

The library’s current policy allows security to ask a person suspected of carrying any kind of weapon to leave the building or to prohibit that person from entering.

The law would overturn that policy, as well other local regulations, including ordinances banning weapons from city parks.

[Still more] See this story today from Lesley Stedman Weidenbener of the LCJ, headed "Indiana lawmakers must complete work by midnight."

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Indiana Government

Ind. Gov't. - "Indiana GOP lawmakers drop idea of 'Charlie White rule'"

Eric Bradner reports in the Evansville Courier & Press this morning:

House Republicans have scotched the idea of a "Charlie White rule" that would allow Gov. Mitch Daniels to appoint a replacement if a lawsuit seeking to eject Indiana's embattled secretary of state from office is successful. * * *

House Speaker Brian Bosma, R-Indianapolis, said he is "not comfortable" intervening in an active lawsuit. He echoed Rep. Kathy Richardson, the Noblesville Republican who authored the bill that the Senate used to carry the White-related rule.

Bosma said the compromise the House and Senate are likely to strike would keep the Senate's idea of having the governor fill state-level offices that are vacated because the candidate is ruled ineligible, but apply that law only to elections that take place in 2012 and beyond.

ILB: Here is the conference committee report on HB 1242, as filed in the House at 4:39 PM yesterday. Note item # 27 in the Synopsis:
(27) Provides that whenever the state recount commission makes a final determination that a candidate for a state office (other than the office of governor or lieutenant governor, or a judicial office) who is subject to a contest proceeding is not eligible to serve in the office to which the candidate is elected: (A) the office is considered vacant and the governor fills the office by appointment of a person of the same political party as the candidate who is not eligible to serve; and (B) the commission's determination does not affect the votes cast for the candidate for purposes of determining the number or percentage of votes cast for the office under other statutes. Provides that the vacancy filling provision does not apply to the filling of a state office following a contest proceeding or court action that resulted from an election held before January 1, 2011.

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Indiana Government

Ind. Gov't. - "Battle over Planned Parenthood heads to states, starting with Indiana"

That is the headline to this story today by Mark Guarino of the Christian Science Monitor. The subhead: "The Indiana legislature has passed a bill to defund Planned Parenthood. Gov. Mitch Daniels (R), a moderate with potential presidential aspirations, must decide whether to sign it."

"Daniels faces dilemma in Planned Parenthood bill," is the headline to this story by Philip Elliot of the AP that begins:

It's anybody's guess which Mitch Daniels will show up when it comes time to sign or veto an Indiana measure that cuts off $3 million a year in federal funding to Planned Parenthood in the state.

The Indiana governor is a fiscal hawk who may not want to put at risk another $4 million a year in federal family planning grants that probably would be cut off because of the bill. But he's also a possible presidential candidate who may need to prove to GOP primary voters that he really is an anti-abortion social conservative.

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Indiana Government

Ind. Decisions - Still more on: Supreme Court decides civil forfeiture case

Wednesday's decision by the Supreme Court in Martin Serrano v. State of Indiana and the City of Fort Wayne (earlier ILB entries here and here), and particularly the dicta in footnote 3, is the focus of an Indianapolis Star a must-read story today by Heather Gillers, headed "After state high court opinion, question remains: who is entitled to forfeitures? State high court opinion casts further doubt on whether law enforcement can keep seized assets."

The ILB noted Wednesday:

In its discussion of the origin of Indiana‘s system for civil forfeitures, the Court writes that "At the core of the financing scheme for this objective was creation of the Common School Fund, a 'perpetual' depository for 'support of Common Schools, and no other purpose.' Ind. Const. art. 8, § 3." Footnte 3 on page 4 cites IC 34-6-2-73 and notes: "Whether this limited diversion, calculating actual expenses on a case-by-case basis, is consonant with the constitutional command that 'all forfeitures' be deposited in the Common School Fund is an unresolved question."
From Gillers' lengthy story today:
For decades, police and prosecutors have used the assets they seize from suspected criminals to help balance their budgets. But some legal and political leaders are now questioning whether that practice violates the state constitution.

At stake is potentially millions of dollars that would shift from law enforcement to education.

Police and prosecutors already were expecting to lose some forfeiture funds next year. State lawmakers are preparing to approve a bill that would cap the law enforcement share at 85 percent and send the rest to schools.

It is no longer clear, however, that police and prosecutors are entitled to any of the money.

A Marion County judge, several state legislators, a pending lawsuit and a state Supreme Court opinion are questioning whether the proposed law and an existing law violate the state constitution, which they suspect requires all forfeiture money to be deposited in the state's Common School Fund.

"I don't know," said the bill's author, Sen. Richard Bray, R-Martinsville, when asked whether his proposal is constitutional.

"That's up to the gentlemen at the end of the hall to decide," he said, pointing toward the state Supreme Court.

On Wednesday, the state Supreme Court issued an opinion in an unrelated forfeiture case that questioned whether it's constitutional for prosecutors to keep any proceeds from seized assets.

An Indianapolis Star investigation earlier this year revealed that prosecutors across the state -- and especially in Marion County -- have been keeping nearly all proceeds.

Their justification comes in part from a legal opinion issued last year by Attorney General Greg Zoeller.

When the constitution says forfeited funds must go into the Common School Fund, Zoeller wrote in the opinion, it is not talking about civil forfeitures.

Instead, he said, the constitution is talking about criminal forfeitures.

It's an important distinction.

The vast majority of forfeitures in Indiana are civil forfeitures -- cases in which prosecutors seize assets before ever going to trial. In fact, civil forfeitures can take place even when there is not enough evidence to bring charges. Civil forfeitures in Marion County last year amounted to $1.3 million.

Criminal forfeitures, which happen only after a property owner is convicted, are unusual.

But since Zoeller wrote his opinion, in May, a growing number of legal and political leaders have expressed disagreement -- culminating in the state Supreme Court opinion Wednesday.

"Before the decision, there was sufficient uncertainty for the (office of the) attorney general to issue its opinion," said David Orentlicher, a former state legislator and the Samuel R. Rosen professor of law at Indiana University School of Law-Indianapolis. "But after the Supreme Court decision, I think they have to change their position."

The state Supreme Court wrote that "constitutional command" is so definitive that it's not clear prosecutors can retain any money for law enforcement expenses.

The Supreme Court's analysis echoes one earlier this month by Marion Superior Court Judge Tim Oakes, which said that criminal and civil forfeitures belong in the Common School Fund -- "despite an attorney general opinion and some precedent in this state." * * *

Zoeller's spokesman, Bryan Corbin, said the attorney general will defend prosecutors -- and, if necessary, the state statute -- in the face of a constitutional challenge.

Corbin also pointed out that the state Supreme Court opinion was a comment in an unrelated forfeiture case. The court was not asked to rule on the question of whether civil forfeiture money belongs in the Common School Fund, so the opinion is not binding. The Marion Superior Court opinion also was nonbinding.

Zoeller said he is standing by his opinion -- the one that allows prosecutors to keep civil forfeiture money -- and called the constitutional challenge to that practice "frivolous." * * *

But the Common School Fund almost never benefits from asset seizures. The Star's investigation revealed that only five counties turned over any forfeiture money to the fund from January 2008 to February 2010.. That's due, in great part, to Indiana's vague forfeiture law.

The current statute says law enforcement officials can hang on to only the assets needed to cover the cost of the law enforcement operation that seized them and must turn the rest over to the school fund.

Prosecutors, however, have interpreted the law broadly. Marion County, for example, traditionally has justified keeping all of the money by interpreting the phrase "law enforcement costs" to mean the entire cost of enforcing the law in Marion County.

Amid The Star's investigation and Ogden's lawsuit on behalf of schools, lawmakers took up the issue this legislative session.

Today, lawmakers are expected to approve a final version of the bill after working out a compromise between the Senate and House versions Thursday. After that, it will head to the governor's desk.

And then, potentially, to the courts.

ILB: The bill is SB 215. Conference committee reports were filed yesterday in the Senate at 5:31 PM and in the House at 5:54 PM. Here is the synopsis:
Citations Affected: IC 34-24-1.

Synopsis:
Forfeiture. Conference committee report for ESB 215. Requires counties to create an asset forfeiture account. Provides that, in a forfeiture proceeding, 1/3 of the proceeds may be provided to the prosecuting attorney or an attorney retained by the prosecuting attorney in a forfeiture action, unless the prosecuting attorney has declined a request from the state police department to transfer the forfeiture to federal jurisdiction, in which case 20% of the proceeds but no more than $5,000 may be transferred to the prosecuting attorney. Provides that of the remaining proceeds, 15% shall be provided to the common school fund and 85% shall be distributed to an account for distribution to law enforcement agencies participating in the seizure as necessary law enforcement expenses. Specifies that money or the proceeds of seized property placed in a county asset forfeiture account may be disbursed only by action of the county legislative body under a claim submitted by a law enforcement agency or prosecuting attorney, and must be disbursed pursuant to an interlocal agreement, if applicable. Permits a prosecuting attorney to retain an attorney to bring a forfeiture action only if the attorney general reviews the compensation agreement between the prosecuting attorney and the retained attorney, and requires that the compensation agreement with the attorney be capped at: (1) 33 1/3% of the first $10,000 of the amount of the proceeds or money obtained; (2) 25% of the part of the amount between $10,000 and $100,000; and (3) 20% of the part of the amount that is at least $100,000; unless a court finds that the forfeiture action is unusually complex. Requires a court to notify the Indiana criminal justice institute of the amount and manner of a forfeiture distribution. Provides that a prosecuting attorney or deputy prosecuting attorney who engages in a forfeiture action for the prosecuting attorney's office may not receive a contingency fee. (This conference committee report: (1) provides that the prosecuting attorney or attorney retained by a prosecuting attorney receives 20% (to a maximum of $5,000) of the forfeiture proceeds if the prosecuting attorney declines to transfer a forfeiture case to federal jurisdiction; (2) provides that 15% of the remaining funds shall be transferred to the common school fund, and 85% to participating law enforcement agencies as necessary law enforcement expenses; (3) removes a provision permitting the state police department to move to transfer a forfeiture to federal jurisdiction; and (4) removes provisions concerning the school safety fund.)

Posted by Marcia Oddi on Friday, April 29, 2011
Posted to Ind. Sup.Ct. Decisions

Thursday, April 28, 2011

Ind. Courts - Indianapolis Bar Association Responds to Criticism of Marion County Circuit Court Judge

The ILB has just received this press release from the Indianapolis Bar Ass'n. Speaking as a member of the Indiana bar, I am pleased to see it, and am posting it in full below:

Indianapolis, IN, April 28, 2011: On behalf of over 5,000 lawyers, judges, and legal professionals, the Indianapolis Bar Association on occasion finds it appropriate to speak when the integrity of the legal system or those who administer, support and defend it are unfairly called into question. The April 27, 2011 blog post by Abdul Hakim-Shabazz titled “Treacy v. Parker?”, has made unsubstantiated allegations that call into question the actions of a sitting judge and the integrity of the legal system as a whole. The Marion County Circuit Court judge in the matter involving the case of Indiana Secretary of State Charlie White is bound by the rules of judicial conduct in that and any other case. While we understand the importance of a free debate in political matters and policy issues of public concern, including those that may take place on the Indiana Barrister blog, parts of this April 27 blog post suggest without evidence that the judge has violated his duties. The legal system, its participants and the public benefit from commentary on politics that is free from baseless allegations of this nature. We also note that since Abdul Hakim-Shabazz is an attorney who has chosen a name for his blog that references the legal profession, it would have been our hope that his respect for the legal system would have outweighed any interest in publishing sensationalized, unfounded and unattributed allegations about the judge. The IndyBar reiterates its support for a vigorous public discourse about the legal system and judiciary, but encourages those who comment publicly to do so responsibly.

Posted by Marcia Oddi on Thursday, April 28, 2011
Posted to Indiana Courts

Ind. Gov't. - Where are we now with the budget? [Updated]

Mary Beth Schneider of the IndyStar just tweeted: "Budget negotiators expected to hold public meeting later today to explain what's in, and not in, new state budget."

[Updated at 6:39 PM] Here it is, the Conference Committee report! Thanks to Heather Gillers for the heads up!

Posted by Marcia Oddi on Thursday, April 28, 2011
Posted to Indiana Government

Ind. Courts - "Blogger Jailed; Allegedly Threatened Dearborn Judge"

That was the first story from Eagle County News, on March 11th. Some quotes from the beginning of the long story:

(Lawrenceburg, Ind.) - A Norwood, Ohio man is in jail in Dearborn County accused of Intimidating public officials through the web.

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).

Today a new story, this one headed "Blogger's Case Gets New Judge." Some quotes:
(Lawrenceburg, Ind.) - A man accused of intimidating a Dearborn County judge by what he wrote on a blog is having his trial handed to a judge outside of the county.

Dan Brewington was indicted by a grand jury last month for charges including Intimidation, Intimidation of a Judge, Attempt to Commit Obstruction of Justice, and Perjury. He remains in the Dearborn County Law Enforcement Center on a $500,000 surety and $100,000 cash bond. * * *

The state Supreme Court last week appointed Decatur County Judge John Westhafer to preside over the case from now on. * * *

Since being arrested, Brewington’s relatives have been posting on his blog for him. He claims he is considering a lawsuit against Dearborn County in regards to the medical treatment he is receiving while in jail. He has also posted a letter written to the American Civil Liberties Union.

Posted by Marcia Oddi on Thursday, April 28, 2011
Posted to Indiana Courts

Ind. Decisions - Another 7th Circuit decision today, this one from Illinois and about warrants for GPS tracking

See the How Appealing writeup here.

ILB: Here is the 52-page opinion in U.S. v. Cuevas-Perez. Each of the three judges - Cudahy, Flaum and Wood - writes separately. The opinion begins:

Juan Cuevas-Perez appeals from the denial of his motion to suppress evidence, on the grounds that the warrantless use by law enforcement of a Global Positioning System (“GPS”) tracking device violated his Fourth Amendment rights. Consistent with this circuit’s existing precedent, we agree that the suppression motion should have been denied, and accordingly, we affirm.
Judge Wood's dissent begins on p. 32, with:
This case presents a critically important question about the government’s ability constantly to monitor a person’s movements, on and off the public streets, for an open-ended period of time. The technological devices available for such monitoring have rapidly attained a degree of accuracy that would have been unimaginable to an earlier generation. They make the system that George Orwell depicted in his famous novel, 1984, seem clumsy and easily avoidable by comparison. This court recognized in United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), that “the meaning of a Fourth Amendment search must change to keep pace with the march of science.” Id. at 997. We sensibly commented further in that case that we were not closing the door to future developments: “Whether and what kind of restrictions should, in the name of the Constitution, be placed on such surveillance when used in routine criminal enforcement are momentous issues that fortunately we need not try to resolve in this case.” Id. at 998.

Today we must decide whether to extend the rule announced in Garcia, which held that the attachment of a Global Positioning System, or GPS, tracking device on a car did not require a warrant—when the device was attached in public, it merely stored data, and it was retrieved in public—should be extended to a more sophisticated GPS tracker that transmitted at fourminute intervals information about the vehicle’s location to a central monitoring office for 60 hours. My colleagues have decided that Garcia should be so extended. In doing so, they part company with the District of Columbia Circuit’s thought-provoking opinion in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), reh’g denied sub nom. United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010). With respect, I cannot take these steps. Although I part ways in some respects from the reasoning adopted by the D.C. Circuit, I would follow the ultimate conclusion announced in Maynard and find that the police cannot conduct a search using a device like the one here without first obtaining a warrant. I would therefore reverse the judgment of the district court.

Background: This ILB entry from Oct. 5, 2010 leads back to earlier entries, including this one from Nov. 23, 2009, that give a good overview of the decisions.

[More] See this, by Orin Kerr of the Volokh Conspiracy.

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

Ind. Gov't. - Status of budget bill; abortion; education

Niki Kelly of the FWJG has just tweeted: "Tentative budget deal struck. GOP taking the report to caucus to get permission to sign."

Here is an AP story from Tom Davies and Deanna Martin posted at 1 PM, "Decisions for Daniels as he weighs White House bid."headed

Posted by Marcia Oddi on Thursday, April 28, 2011
Posted to Indiana Government

Ind. Courts - Charlie White hearing in progress before Judge Rosenberg [Updated]

Carrie Ritchie of the IndyStar just tweeted: "Judge denies White's motion to stay challenge." Perhaps, denied motion to stay civil action, pending appeal?

[Updated] Here is Richie's story, now available at the Star site. It begins:

A Marion County judge has denied Charlie White’s request to halt Democrats’ challenge to his eligibility to hold office.

Posted by Marcia Oddi on Thursday, April 28, 2011
Posted to Indiana Courts

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

In Koons v. U.S. (SD Ind., Young), a 15-page opinion, Judge Flaum writes:

Andrew Koons pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). He petitions pursuant to 28 U.S.C. § 2255 to vacate his plea based on ineffective assistance of counsel, arguing that his trial counsel failed to pursue a potential Fourth Amendment claim that may have warranted suppressing significant evidence against him. In the alternative, Koons requests an evidentiary hearing to evaluate his ineffective assistance claim. The district court denied Koons’s motion. We affirm.

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

Ind. Decisions - Court of Appeals issues 2 today (and 19 NFP)

For publication opinions today (2):

In Ben and Elaine Life v. F.C. Tucker Company, Inc., et al. , a 12-page opinion, Judge Bailey writes:

Appellants-plaintiffs Ben Life and Elaine Life (“the Lifes”) appeal from the trial court's denial of their motion to correct error following its summary judgment in favor of appellees-defendants F.C. Tucker Company, Inc. (“F.C. Tucker”) and LT, Inc. d/b/a Tucker Home Link (“Home Link”) (collectively, “Tucker”). We affirm.

The Lifes raise two issues for our review, which we restate as:
I. Whether the trial court erred in striking as untimely their response to Tucker's motion for summary judgment and their attached affidavits; and
II. Whether the trial court erred in denying their motion for partial summary judgment and granting Tucker's motion for summary judgment. * * *

The trial court properly struck the Lifes' response to Tucker's motion for summary judgment and their attached affidavits. There is no genuine issue of material fact as to the claims for breach of contract and negligence. Therefore, summary judgment in Tucker's favor was warranted, and the trial court did not abuse its discretion in denying the Lifes' motion to correct error. Affirmed.

In Meridian Title Corp. v. Pilgrim Financing, LLC, a 14-page opinion, Judge Riley writes:
Appellant-Defendant, Meridian Title Corporation (Meridian), appeals the trial court's judgment in favor of Appellee-Plaintiff, Pilgrim Financing, LLC (Pilgrim), with respect to Pilgrim's claim that Meridian negligently disbursed the net proceeds from a refinancing transaction. We affirm.

Meridian raises one issue on appeal, which we restate as follows: Whether the trial court erred when it found that Meridian negligently disbursed the net closing proceeds from a refinancing transaction.

NFP civil opinions today (6):

Term. of Parent-Child Rel. of I.A., et al.; K.B. v. IDCS (NFP)

Mary Maksimik v. SLB Mobil, Inc., et al. (NFP)

Steve A. Thomas v. Phyllis A. Briggs (NFP)

Scott Wayne Mosby and Shelly M. Mosby (NFP)

Term. of Parent-Child Rel. of D.H., et al.; Y.H. v. IDCS (NFP)

R.B. v. Review Board (NFP)

NFP criminal opinions today (13):

Rodney A. Covington v. State of Indiana (NFP)

Brandon Lee Johnson v. State of Indiana (NFP)

Michael Fields v. State of Indiana (NFP)

Kendall D. McGee v. State of Indiana (NFP)

John W. Williams v. State of Indiana (NFP)

Terry Martin v. State of Indiana (NFP)

Corey Pannell v. State of Indiana (NFP)

Jonathan Grider Jr. v. State of Indiana (NFP)

John Bradley IV v. State of Indiana (NFP)

Carl Hoover v. State of Indiana (NFP)

Anahel A. Amaya v. State of Indiana (NFP)

Phillip D. Hartsough v. State of Indiana (NFP)

Gale S. Shawyer v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 28, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Court deals potentially fatal blow to class action arbitrations "

Updating yesterday's entry, here is a story today by Marcia Coyle of The National Law Journal, headed "Court deals potentially fatal blow to class action arbitrations.' It begins:

Class action arbitrations may soon be confined to the ash heap of history because of a divided U.S. Supreme Court ruling on Wednesday.

A 5-4 majority, led by Justice Antonin Scalia, held that the Federal Arbitration Act trumps a California rule invalidating as "unconscionable" a class action waiver provision in a cell phone arbitration agreement.

The decision, which split the justices along ideological lines, immediately drew calls from consumer groups and others for congressional action on pending legislation that would ban mandatory arbitration agreements in most consumer and employment contracts.

Posted by Marcia Oddi on Thursday, April 28, 2011
Posted to Courts in general

Ind. Decisions - More on: Supreme Court decides civil forfeiture case

Yesterday's Supreme Court decision in Martin Serrano v. State of Indiana and the City of Fort Wayne came as somewhat of a surprise. Here is the Supreme Court docket:

Case Number: 02 S 03 - 1104 - CV - 00241
4/27/11
APPELLEE'S PETITION FOR TRANSFER IS HEREBY GRANTED.
RANDALL T. SHEPARD, CHIEF JUSTICE
(ORDER REC'D. 4/27/11 AT 10:00 A.M.) ENTERED 4/27/11 KM
4/27/11
****** ABOVE ENTRY MAILED ******
4/27/11
ISSUED THE ENCLOSED OPINION:

THE JUDGMENT OF THE TRIAL COURT IS
REVERSED. ----------- SHEPARD, C.J.
DICKSON, SULLIVAN, RUCKER, AND DAVID, JJ., CONCUR.
8 PAGES
ENTERED 4/27/11 KM
4/27/11
****** ABOVE ENTRY MAILED ******

The Court of Appeals opinion was issued 6/28/10:
Case Number: 02 A 03 - 0908 - CV - 00362
6/28/10
ISSUED THE ENCLOSED OPINION:

REVERSED-----KIRSCH, J.
ROBB, J. CONCURS.
FRIEDLANDER, J. DISSENTS WITH SEPARATE OPINION.
MEMORANDUM DECISION/NOT FOR PUBLICATION
16 PAGES KM
6/28/10
****** ABOVE ENTRY MAILED ******
7/27/10
APPELLEE'S PETITION FOR TRANSFER (9)
CERTIFICATE OF SERVICE (9) BY MAIL 7-27-10
ENTERED ON 07/27/10 LH
8/05/10
***********TRANSMITTED ON TRANSFER 08/05/10***********
ENTERED ON 08/05/10 PA
8/19/10
APPELLANT'S BRIEF IN RESPONSE TO PETITION TO TRANSFER (9)
CERTIFICATE OF SERVICE (9) BY MAIL 08/19/10.
ENTERED ON 08/24/10 KSB
4/27/11
CASE TRANSFERRED TO THE SUPREME COURT
SUPREME COURT CAUSE NUMBER 02S031104CV00241

And again, as noted yesterday, SB 215 is in conference, and has been there since April 18th:
04/14/2011 - S - Senate conferee appointed: Bray and Lanane
04/14/2011 - S - Senate advisors appointed: Head, Arnold and M. Young
04/18/2011 - H - House conferees appointed: Foley and L. Lawson
04/18/2011 - H - House advisors appointed: McMillin, Torr and DeLaney

Posted by Marcia Oddi on Thursday, April 28, 2011
Posted to Indiana Decisions

Ind. Gov't. - "Budget deal expected by midday today"

From the Indianapolis Star:

Lawmakers negotiating a new two-year state budget say they expect to have a deal by midday today.

It will not be voted on until Friday, to give legislators a chance to review the bill. It would appropriate about $28 billion over two years to fund schools, universities, parks, prisons, health care and other government services.

Senate Appropriations Chairman Luke Kenley, R-Noblesville, and House Ways and Means Chairman Jeff Espich, R-Uniondale, said the negotiations are down to only a handful of issues, though they gave few specifics.

Kenley said he expects the final version of House Bill 1001 to include the anti-walkout provision the Senate had inserted in the budget. Democrats call it a "poison pill" that robs the minority of its only leverage: the right to deny a quorum to do business.

Big Question - When will the budget proposal be available online for public review? Remember, it is very long and may include anything, including items whose significance is not immediately obvious ...

It will be in the form of a conference committee report on HB 1001, and must be filed in each house. When each house adopts it in the same form, it will be eligible for enrollment.

Posted by Marcia Oddi on Thursday, April 28, 2011
Posted to Indiana Government

Ind. Gov't. - "Bill to let Daniels replace White hits snag"

Mary Beth Schneider reports today in the Indianapolis Star:

The Indiana House is balking at a Senate plan to let Gov. Mitch Daniels appoint a replacement if Secretary of State Charlie White is found ineligible to have been elected.

Current law states that if a candidate is ineligible to be on the ballot, the second-place finisher -- in this case, Democrat Vop Osili -- shall be declared the winner. But the Senate amended House Bill 1242, a wide-ranging elections bill, to give the governor power to fill the vacancy.

Rep. Kathy Richardson, R-Noblesville, said the bill troubles her because it would affect an election currently under litigation.

In negotiations with the Senate, she is proposing to let a governor fill vacancies in future elections where the winner is found to have been ineligible -- but not in the case of anyone elected in November 2010, as White was. * * *

Sen. Michael Young, R-Indianapolis, successfully amended the bill in the Senate, saying that the "loser shouldn't win."

Richardson's version of the bill must be approved by both the House and Senate before it can become law.

Richardson did accept other changes the Senate made to the bill. Republicans would keep their major party status -- giving their candidates automatic ballot access rather than going through the cumbersome petition process -- even if White is found ineligible. And county clerks would not be able to let voters cast absentee ballots in satellite offices, something that Democratic clerks in Marion, Lake and other counties had allowed as a convenience to voters.

It was not yet certain whether the Senate would accept Richardson's proposed version of the bill or seek other changes.

On the court front:
Republican officials had been ordered to appear before Marion Circuit Judge Louis Rosenberg today to explain what Democrats had described as delaying tactics. * * *

Rosenberg this week ordered Skolnik and Indiana GOP Chairman Eric Holcomb to appear before him to explain why the panel has not moved more quickly in meeting his April 7 order to reconsider whether White was a valid candidate when he won election last fall.

Rosenberg also had ordered Holcomb to appoint a new chairman to the panel within two days. Holcomb did that Tuesday, naming former Indiana State Election Commission Chairman Thomas E. Wheeler II to replace White, who recused himself from hearing his own case.

See earlier ILB entry here, from April 25th.

[More] See also this Fort Wayne Journal Gazette story by Niki Kelly, that begins:

House Republicans are backing away from a controversial measure that would have preserved GOP control of the secretary of state’s office if Charlie White is retroactively kicked off last fall’s ballot.

Posted by Marcia Oddi on Thursday, April 28, 2011
Posted to Indiana Government

Wednesday, April 27, 2011

Ind. Gov't. - More on "Abortion bill could pass today: Pact to cut off state funds to Planned Parenthood clears way" [Updated]

HB 1210, the abortion restrictions / defund Planned Parenthoood bill, in the form it passed the Senate, has late this afternoon been approved by the House, and it is on its way to the Governor.

The vote was 66 to 32. Here is the roll call. [Update: According to the April 28th IndyStar story:

Seven Democrats voted with Republicans to approve the bill: Dave Cheatham, North Vernon; Chet Dobis, Merrillville; Terry Goodin, Austin; Sheila Klinker, Lafayette; Chuck Moseley, Portage; Steven Stemler, Jeffersonville; and Peggy Welch, Bloomington.

No Republican voted against the bill.]

SECTION 1 of the bill is the Planned Parenthood defunding provision. Note that this SECTION is effective upon passage -- that means as soon as it is signed by the Governor, if he signs it.

For background, start with this entry from earlier today.

[More] See also this story by Angela Mapes Turner of the Fort Wayne Journal Gazette. Here are some quotes:

Rep. Peggy Welch, D-Bloomington, ultimately voted for the bill but expressed concern if Planned Parenthood was stripped of its funding, the non-profit might be forced to close some locations or cut services, which include pap smears, breast exams and birth control.

Reps. P. Eric Turner, R-Cicero, and Matthew Ubelhor, R-Bloomfield, showed a handmade map of the state’s Planned Parenthood clinics and other sexual health clinics but said they weren’t sure if the other clinics would be able to absorb Planned Parenthood’s clients should the organization cut services.

Turner said the bill doesn’t prevent Planned Parenthood from operating in the state and said the bill will go toward his goal of making Indiana one of the most “pro-life” states in the country.

Minority Leader B. Patrick Bauer, D-South Bend, said the bill had gone beyond “pro-life” goals with the addition of the Planned Parenthood provision. “I’m not voting against the right-to-life,” Bauer said. “I’m voting against the politicization of something many people hold religiously dear. There are many of these clinics that do give women lives.”

Rep. Win Moses, D-Fort Wayne, called the legislation an attack against women, particularly poor- and middle-class women who seek low-cost care.

Posted by Marcia Oddi on Wednesday, April 27, 2011
Posted to Indiana Government

Ind. Gov't. - "Four Northwest Indiana lawmakers on Wednesday sharply criticized legislation intended to assist financially distressed local governments"

Dan Carden of the NWI Times reports this afternoon on the status of SB 105.

For background, start with this Jan. 24th entry, headed "Law would let cities declare bankruptcy."

Posted by Marcia Oddi on Wednesday, April 27, 2011
Posted to Indiana Government

Courts - "After AT&T Ruling, Should We Say Goodbye to Consumer Class Actions?"

That is the headline to this WSJ Law Blog post by Ashby Jones, reacting to the SCOTUS decision today in AT&T Mobility v. Concepcion.

Posted by Marcia Oddi on Wednesday, April 27, 2011
Posted to Courts in general

Ind. Decisions - Supreme Court decides civil forfeiture case

In Martin Serrano v. State of Indiana and the City of Fort Wayne, an 8-page, 5-0 opinion, the Court reverses a trial court decision. Chief Justice Shepard writes:

Civil forfeiture is a device, a legal fiction, authorizing legal action against inanimate objects for participation in alleged criminal activity, regardless of whether the property owner is proven guilty of a crime—or even charged with a crime. Appellant Martin Serrano lost his truck in a forfeiture action based on the presence of cocaine residue found in the carpet of the vehicle and on a box of $500 in quarters. The Court of Appeals was correct to reverse the forfeiture because the State failed to prove any substantial connection, any nexus, that the truck bore to commission of a crime. * * *

Serrano‘s appeal has challenged the sufficiency of the evidence, contending the State failed to prove that the presence of cocaine in his truck was anything more than incidental or fortuitous. A divided Court of Appeals agreed, and reversed, concluding the State failed to demonstrate a nexus between Serrano‘s possession of cocaine residue and the use of his truck. Serrano v. State, No. 02A3-0908-CV-362, (Ind. Ct. App. Jun 28, 2010). We grant transfer to confirm the rationale of the Court of Appeals in reversing the trial court.

In rem forfeiture is an ancient concept under which courts obtained jurisdiction over property when it was virtually impossible to seek justice against property owners guilty of violating maritime law because they were overseas. Civil forfeiture traces to ancient Roman and medieval English law; both made objects used to violate the law subject to forfeiture to the sovereign. Civil forfeiture is no longer tethered to difficulties in obtaining personal jurisdiction over an individual. It now serves as "one of the most potent weapons in the judicial armamentarium." Civil forfeiture is a leading method for imposing economic sanctions against narcotics traffickers. [ILB: cites deleted]

Today, all states have statutory provisions for some form of asset forfeiture, and there are more than four hundred federal forfeiture statutes relating to various federal crimes. Marian R. Williams, Jefferson E. Holcomb, Tomislav V. Kovandzic & Scott Bullock, Institute for Justice, Policing for Profit: The Abuse of Civil Asset Forfeiture 11 (2010). An important feature of many of these statutes is characterization of the process as civil forfeiture under which (by contrast to criminal forfeiture) a property owner need not be found guilty of a crime—or even charged—to lose permanently their cash, car, home or other property. The relative ease of effecting such forfeiture and the disposition of the assets have become a matter of public note.[1] * * *

[ILB: In its discussion of the origin of Indiana‘s system for civil forfeitures, the Court writes that "At the core of the financing scheme for this objective was creation of the Common School Fund, a 'perpetual' depository for 'support of Common Schools, and no other purpose.' Ind. Const. art. 8, § 3." Footnte 3 on page 4 cites IC 34-6-2-73 and notes: "Whether this limited diversion, calculating actual expenses on a case-by-case basis, is consonant with the constitutional command that 'all forfeitures' be deposited in the Common School Fund is an unresolved question."]

[T]he State‘s evidence does not compel a conclusion that the presence of cocaine was anything more than "incidental or fortuitous." Katner, 655 N.E.2d at 348–49. The State presented no evidence or link to any drug transactions or trade other than the initial information from an anonymous informant that the grocery store was receiving large shipments of drugs. Serrano admitted he was a cocaine user, and without expounding, it seems apparent that there are numerous ways that cocaine residue may have made its way into the truck that do not involve the use of his vehicle in furthering the possession of cocaine.

The judgment of the trial court is reversed.
_________
[1] Heather Gillers, Mark Alesia & Tim Evans, Cashing in on Crime, Indianapolis Star, Nov. 14, 2010, at A1.

ILB: At least two items of note right now:

(1) SB 215, this session's forfeiture bill, is currently in conference committee. One might read today's opinion, footnote 3, to raise the question of whether any diversion of forfeiture funds from the Common School Fund is constitutional.

(2) It is certainly noteworthy that the Court of Appeals classified this as a NFP opinion.

Posted by Marcia Oddi on Wednesday, April 27, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Should a judge be able to select the copier for his court?

Updating this ILB entry from April 17th, Ken de la Bastide reports today in the Kokomo Tribune in a story headed "Council approves copier request: Judge says it will save the county $1 million":

Kokomo — Superior Court 1 Judge Bill Menges received approval from the Howard County Council to purchase a new copier for his court. * * *

At the council meeting Tuesday, Menges said he learned last week the more expensive copier will allow for faster preparation of Abstracts of Judgment, which transfer inmates to the Indiana Department of Corrections.

Once those documents are signed, Menges said, the state pays the county $35 per day for each inmate until they are transferred from the Howard County jail to a state correctional facility.

Menges said the 501 copier is not fast enough to process that paperwork. Also, he said the 601 has a longer expected lifespan and would save the county money in the long run.

He predicted a savings of $1 million to the county between the life of the copier and transferring inmates to the state at a faster pace.

He said the 601 is 67 percent faster and scans at a higher resolution. * * *

He said he has more technology experience than the other judges because of operating a private law office in the past. * * *

Menges said it’s a question of what funds are used to purchase the copier. He said the commissioners could appropriate funds from the Cumulative Capital Fund; the council could make an additional appropriation from the general fund; or the auditor could use unappropriated funds.

He said when he took office in 2003, he supplied computers, laptops, copiers, scanners and office furniture for the court at no cost to the county.

Posted by Marcia Oddi on Wednesday, April 27, 2011
Posted to Indiana Courts

Ind. Gov't. - More on: "Abortion bill could pass today: Pact to cut off state funds to Planned Parenthood clears way"

Maybe it is not as clear as it seemed in this entry.

Eric Bradner of the Evansville C&P has just tweeted:

House Speaker Brian Bosma says he's not sure if Republicans will vote, or even have the votes, to pass Planned Parenthood defunding measure.

House Republicans are going to talk about that in caucus right now, Bosma said. The House is back at 1:30 p.m.

[More] WISHTV's Jim Shella writes that:

Bosma says he is now comfortable with constitutional questions regarding the provision to defund Planned Parenthood but says he has concerns about the emergency effective date that would put the law into effect if and when the governor signs it.

Posted by Marcia Oddi on Wednesday, April 27, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

In Doe Corporation v. Lolita Honore, et al. , an 11-page opinion, Judge Friedlander writes:

Doe Corporation, an anonymous health care provider, brings this interlocutory appeal from the trial court’s order granting a motion to dismiss Doe Corporation’s motion for a preliminary determination of law (PDL) filed in Marion Superior Court (the trial court) regarding the validity of an opinion of a medical review panel (MRP) appointed in the medical malpractice action filed by Lolita Honoré, as special administratrix of the estate of Andrea Honoré (collectively the Estate). Doe Corporation raises the following restated issue for our review: Did the trial court err by dismissing Doe Corporation’s motion for a PDL for lack of subject matter jurisdiction under Ind. Trial Rules 12(B)(1) and (8) because its motion was filed after the MRP had issued its written opinion, and the amended complaint was pending in another state court? We reverse and remand.
In Robert Beeler v. State of Indiana , an 8-page, 2-1 opinion, Judge Bradford writes:
Appellant/Respondent Robert Beeler appeals from the revocation of the probation and criminal corrections placement imposed following his guilty pleas to Class B felony Robbery and Class D felony Criminal Confinement. We affirm. * * *

According to an entry in the chronological case summary (“CCS”) for Cause 240, Beeler admitted to all four counts under the notice of violation of community corrections and the two counts charged under the notice of violation of probation. The trial court found that Beeler had violated the terms of his community corrections placement and probation in Cause 240, and ordered him to execute six years of his previously suspended sentence. * * *

The CCS entry indicating that Beeler admitted to violating the terms of his community corrections placement and probation is therefore presumptively true. Beeler, however, argues only that the transcript does not indicate that he made the admission, not that the CCS entry is inaccurate, which is what he is required to establish. Under the binding authority of Epps and Trojnar, we accept the CCS entry indicating Beeler’s admissions as true unless it is shown to be otherwise. Because the record indicates that Beeler admitted to violating the terms of his community corrections placement and probation, no evidentiary hearing was required. * * *

KIRSCH, J., concurs.
CRONE, J., dissents with opinion. [that concludes] Given the fundamental due process and liberty interests at stake, and given that the transcript actually contradicts the CCS’s version of events, I disagree with the State’s position. Likewise, I disagree with the majority’s reliance on Epps and Trojnar. If Beeler admitted to a probation violation off the record – a fact that Beeler does not concede on appeal – it was incumbent upon the State to ensure that the admission was repeated on the record. This it failed to do. In sum, I believe that Beeler has established fundamental error, and therefore I would reverse the revocation of his probation.

In Mario Brown v. State of Indiana , a 13-page opinion, Judge Bailey looks at the issue of whether "Ind. Code § 35-38-2.6-6, as amended, should apply retroactively to his case, thereby making him eligible for credit time for the period he spent in community corrections." The opinion concludes:
Because the credit time statute at issue here is not remedial, and exclusively prospective application does not violate Brown‘s constitutional right to Equal Protection, we need not discuss the underlying merits of Brown's credit time request. Brown was not eligible to earn credit time while on home detention, and therefore the trial court did not abuse its discretion in imposing its order following his placement revocation.
NFP civil opinions today (2):

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

Steven L. Fortner v. Janet M. Fortner (NFP)

NFP criminal opinions today (11):

Tyrone G. Postell v. State of Indiana (NFP)

Daniel Farris v. State of Indiana (NFP)

Jon Holman v State of Indiana (NFP)

Jesse Savage v. State of Indiana (NFP)

Andrew D. Patterson v. State of Indiana (NFP)

Aubra Ferguson v. State of Indiana (NFP)

Alton Moss v. State of Indiana (NFP)

Gary M. Kincade v. State of Indiana (NFP)

Bradley Laycock v. State of Indiana (NFP)

Jerome Taylor v. State of Indiana (NFP)

Jacqueline Gaff v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 27, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Not That Outraged Over Kelo After All"

Just posted on Masson's Blog, this entry. Some quotes:

[2005,] the time when the Supreme Court decided the case of Kelo v. City of New England. Howls of outrage could be heard at the prospect of allowing private interests to benefit from the government’s condemnation powers. Indiana legislators held committee meetings and everything agreeing that use of eminent domain for private interests was bad, mmkay?

Flash forward to 2011. Those howls seem to have diminished to the point where the Indiana General Assembly seems to feel it is safe to take private land for the benefit of carbon dioxide transmission pipeline owners. Specifically, SB 251 creates a new Article IC 14-39 entitled “Eminent Domain for Transportation of Carbon Dioxide by Pipeline.” * * *

If DNR makes certain findings — none of which include, by the way, a finding that the pipeline is a good idea or is not detrimental to the surrounding areas — it is required to issue a certificate of authority. In its submission, the pipeline company can designate information as confidential (but not the location or parameters of the pipeline.)

Posted by Marcia Oddi on Wednesday, April 27, 2011
Posted to Indiana Government

Ind. Gov't. - "Abortion bill could pass today: Pact to cut off state funds to Planned Parenthood clears way"

Heather Gillers of the Indianapolis Star has the story in today's paper. Some quotes from the long story:

The state legislature could take its final vote on a major abortion bill as early as today -- sending it to the governor's desk -- after the bill's author signed off on a final version Tuesday.

Rep. Eric Turner, R-Cicero, late Tuesday agreed to Senate changes to the bill, including a new provision cutting off taxpayer funding to Planned Parenthood of Indiana. That means the two houses will not have to hash out a compromise.

The agreement brushes aside concerns raised by the state Family and Social Services Administration that defunding Planned Parenthood could result in the loss of $4 million in federal funds. Planned Parenthood officials say they will seek an injunction if the bill becomes law.

House Bill 1210 also would shorten the window during which women could have abortions to 20 weeks, as well as require doctors to tell patients that abortion is linked to infertility and that fetuses can feel pain at or before 20 weeks.

The House approved the bill 72-23 last month. The Senate passed it 35-13 last week after adding the provision to defund Planned Parenthood of Indiana.

If the bill becomes law, Indiana would be the first state to bar low-income patients from using their Medicaid benefits at Planned Parenthood.

In other words, more than likely the House will vote today to concur in the Senate changes.

See this April 25th ILB entry headed "Planned Parenthood funding fight may force Gov. Daniels to choose between social, fiscal conservatism." That looks likely now.

Gov. Daniels could sign the bill, let it become law without his signature, or veto.

What if he vetoes? In Indiana, overriding a veto takes only a majority vote of each house. But since the General Assembly will adjourn sine die on Friday, it would not be able to act on override until the General Assembly reconvenes. What is the likelihood of an override? I'd say 100%; just look at the list of House and Senate members who signed on to coauthors and cosponsors.

The third option, allowing the bill to become law without his signature (i.e. by inaction) seems an unlikely choice for Daniels.

Posted by Marcia Oddi on Wednesday, April 27, 2011
Posted to Indiana Government

Ind. Courts - "Generally, it is not a good idea for a judge to hire a family member or friend as a court employee or to appoint them to an administrative position."

That is from the beginning of this article in Indiana Court Times, authored by Adrienne Meiring, who is not further identified in the story, but who is the counsel for the Commission on Judicial Qualifications. The article concludes:

Ultimately, here are the three best pieces of advice I can offer to a judge who is considering whether to hire a relative or friend. First, be honest with yourself. Is the individual really the best person for the job or are you motivated to hire them for other reasons? Second, make a list of all the reasons you believe this person is more qualified than all other applicants. Would your reasons withstand the scrutiny of an objective observer? And, finally, proceed with extreme caution. After all, as Aldous Huxley once noted, “Hell isn’t merely paved with good intentions, it is walled and roofed with them.”

Posted by Marcia Oddi on Wednesday, April 27, 2011
Posted to Indiana Courts

Law - "Recently, Attorneys General have had the spotlight thrust upon them by assistant or deputy attorneys general exchanges over the Internet or even an Attorney General’s own 'tweet!'"

"An Attorney General's Headache: Balancing Personal Social Media with Public Service," is the headline to this very good article by Brian Kane, Assistant Chief Deputy Attorney General, Idaho Office of Attorney General, in the NAAGazette, a publication of the National Association of Attorneys General.

It gives many examples of missteps, including that of an Indiana deputy AG, and then follows with a section on finding the right balance.

Posted by Marcia Oddi on Wednesday, April 27, 2011
Posted to General Law Related

Courts - "SCOTUS Examines State, Local Ethics Laws"

Listen to Nina Totenberg's NPR story about today's oral argument. It begins:

The U.S. Supreme Court hears arguments Wednesday in a case that could put a constitutional cloud of doubt over hundreds — if not thousands — of state and local ethics laws across the country.

For the first time, the justices will consider whether a legislative vote is protected by the First Amendment guarantee of free speech — specifically, whether states may forbid officeholders from voting on matters that appear to involve a personal conflict.

And here is SCOTUSblog's Lyle Denniston's argument preview, which begins:
The Court, in its final oral argument of the Term, on Wednesday examines the free speech rights of members of elected legislatures, like a city council, when they vote on policy issues.

Posted by Marcia Oddi on Wednesday, April 27, 2011
Posted to Courts in general

Tuesday, April 26, 2011

Ind. Gov't. - More on: "Surprises" in the 2009 budget continue to be revealed [Updated]

Remember this ILB entry from Dec. 2, 2009? It was one of a number of entries revealing "surprises" gradually coming to light, provisions inserted in the 2009 budget bill without the knowledge of most people, including most legislators who voted on the budget.

It is now two years later, and we are waiting for another biennial budget to be revealed. Niki Kelly's story today in the Fort Wayne Journal Gazette gives an idea of what we can expect. Here is the beginning; I've added some highlights:

Key lawmakers Monday publicly outlined their concerns over a proposed $28 billion, two-year state budget, ranging from a horse racing subsidy to the overall level of education funding.

Four Republicans and Democrats were assigned to hammer out a compromise on the biennial spending plan, though about a dozen more lawmakers participated as advisers to the process.

It was the first – and possibly only – public conference committee on the legislation.

Lawmakers usually negotiate the final items behind closed doors and present an agreement just before a final vote.

[More] And this April 26th story by Maureen Hayden of CNHI begins:
INDIANAPOLIS — In a week filled with behind-closed-doors negotiations over last-minute changes to the $28 billion budget bill, ...
And see these quotes from a 2005 story by Michele McNeil, then of the Indianapolis Star, including: "These meetings are mostly for show -- as much of the real negotiating will take place in private."

What ever happened to transparency and open government? What of public meetings?

Posted by Marcia Oddi on Tuesday, April 26, 2011
Posted to Indiana Government

Ind. Gov't. - More on: "Judge: Daniels exempt from testifying now in IBM welfare contract lawsuit, but aide isn't"

Ken Kusmer's story today includes this passage:

Marion County Superior Court Judge David Dreyer's order said lawyers for Armonk, N.Y.-based IBM Corp. have not presented enough evidence to overcome a state law protecting certain state officials from testifying in lawsuits, but the order noted that he could be required to testify under conditions that haven't yet been met.
Thanks to Ken, I have learned that the statute is IC 34-29-2-1(6). What can we find out about this law?

Title 34 is on "Civil Law and Procedure." Article 29 of Title 34 is on "Immunity from Civil Arrest."

While Chapter 2 of Article 29 addresses "Persons Immune from Civil Arrest," Chapter 3 addresses "Remedies if Arrested While Immune."

What are the remedies? IC 34-29-3-2 provides:

A person arrested contrary to this article may recover from the person arresting or causing the arrest: (1) twenty dollars ($20) in damages; or (2) a greater amount in the discretion of the jury.
What is the history of these provisions? The history line says "As added by P.L.1-1998, SEC. 25." That "as added by" is a signal that it was part of a recodification.

And indeed, a look at this Table gives the derivation of IC 34-29-2. Before it was renumbered in 1998, it was IC 34-4-11.

Unfortunately, there we hit a brick wall. What we are looking for is when the immunity from civil arrest law originally passed. It is very old? Or is it a relatively new idea?

To find the history of IC 34--4-11, you need to find a copy of the Indiana Code from before 1998. Then you could look at the history line for IC 34-4-11. (This is the reason law librarians do not summarily discard old statute books when new ones come in.)

In this Res Gestae article from 2008, "Recodifications, legislative histories and tables (part 1)," starting on p. 41, I talk about using source and history lines:

If you look through the Indiana Code today, you will learn that relatively few source lines continue to exist. The reason is that whenever a recodification of an area of law is enacted by the General Assembly, neither the source line nor the existing history line are retained, making understanding the genesis of a provision much more difficult.

For instance, a number of provisions in Indiana’s public health laws had their origins in 1881, when the State Board of Health was created. But if you look at the Indiana Code, Title 16, Health, you will learn from the history lines only that most of Indiana’s health laws were “added by P.L.2-1993.” Those not from 1993 are even more recent.

Posted by Marcia Oddi on Tuesday, April 26, 2011
Posted to Indiana Government

Ind. Courts - Charlie White files for stay

White asks Judge Rosenberg to stay his civil case until a criminal case pending in Hamilton County is resolved, or "at least until the Indiana Court of Appeals can hear his appeal in the civil case." That is the gist of this story filed late this afternoon by Carrie Ritchie of the IndyStar, which also notes: "Rosenberg will consider White’s motion and the Democrat’s motion during a hearing Thursday."

Posted by Marcia Oddi on Tuesday, April 26, 2011
Posted to Indiana Courts

Ind. Gov.t. - "Judge: Daniels exempt from testifying now in IBM welfare contract lawsuit, but aide isn't"

AP story, posted within the hour by the AP's Ken Kusmer, begins:

INDIANAPOLIS — Gov. Mitch Daniels is exempt, for now, from testifying in a lawsuit over Indiana's cancellation of a $1.37 billion contract with IBM Corp. to automate welfare intake, a judge ruled Tuesday, leaving open the possibility that he could be ordered to do so in the future.

Marion County Superior Court Judge David Dreyer's order said lawyers for Armonk, N.Y.-based IBM Corp. have not presented enough evidence to overcome a state law protecting certain state officials from testifying in lawsuits, but the order noted that he could be required to testify under conditions that haven't yet been met.

"The current evidence does not allow the Court to determine whether the Governor may be deposed in this case under any purported exemption to statute," Dreyer wrote in a three-page order. "Therefore, any deposition is precluded by law, or at least premature, until such evidence is forthcoming and sufficient."

Attorneys for the state also sought an order protecting Daniels' chief of state, Earl Goode, from having to provide a deposition, but Dreyer ruled the state law does not cover him.

[More] Here now is the IndyStar coverage.

Posted by Marcia Oddi on Tuesday, April 26, 2011
Posted to Indiana Government

Courts - More on "SCOTUS Weighs Whether To Limit Data Mining"

Updating this ILB entry from first thing this morning, the oral argument took place this morning. How did it go? Lyle Denniston of SCOTUSblog gives a pretty clear indication in the first paragraph of his argument recap:

No more than a few minutes into the Supreme Court’s argument Tuesday on the new information technology of data-mining, it became very clear that the Justices — perhaps more than a simple majority — see this first test case as one about corporate free speech. That might not turn out to be true in every case of data-mining that comes along, but it would certainly seem so when a legislature blatantly sets out to curb the use of that technology to convey a commercial message, made up of truthful information.
Interesting also is this paragraph, noting the use of, if not charts, at least briefs as argument aids by a skilled Supreme Court practitioner:
The more subdued arguments of the state’s lawyer and Kneedler turned out to be in sharp contrast to a high-energy effort to orchestrate the ebb and flow of the argument by Thomas C. Goldstein, arguing for the data-mining companies and the drug manufacturers. Goldstein, ever the conductor, went to some lengths to make sure that the Justices had before them, at key points in his argument, when he intended for them to follow along. For example, at the opening, he said: “You will want to have available to you the red brief….”
[More] Here is the NPR follow-up.

Posted by Marcia Oddi on Tuesday, April 26, 2011
Posted to Courts in general

Environment - "Indiana Dunes to restrict access to Mt. Baldy"

Climbing Mt. Baldy was a rite of passage in my youth, but this is probably a good idea. See the story and photo here, in the Chicago Tribune.

Posted by Marcia Oddi on Tuesday, April 26, 2011
Posted to Environment

Courts - "A record 17 times last year, Wisconsin's Court of Appeals hit lawyers with $150 "summary sanctions" when judges thought briefs were missing some supporting documentation"

So begins another Wisconsin story, this one by Bruce Vielmetti of the Milwaukee Journal Sentinel. A few more quotes:

The state public defender contends that the practice violates due process, interferes with established lawyer discipline procedures, and relies on an unconstitutionally vague rule. The state's Supreme Court agreed last week to consider those arguments.

It's not just about the money. The public defender's office says by announcing the sanctions in opinions on the merits, the Court of Appeals unfairly subjects lawyers to what looks like a public reprimand for an ethics violation - without notice or any chance to explain or defend themselves.

At issue is a rule that appellate lawyers certify that an appendix to a brief contain "limited portions of the records essential to an understanding of the issues raised." It's meant to encourage lawyers to add everything that the court and its law clerks might need to decide the matter without having to search the full case file and trial transcript. * * *

The public defender's office says it's wrong to summarily fine a lawyer over subjective standards, such as what portion of the record is essential to understanding the issue, and then to call the lawyer a liar for not guessing what the court might need.

"To the extent the court believes the rule requires the appellant's appendix to include all parts of the record that the court might deem relevant or even necessary to resolve the issue raised, the court is wrong," reads the brief by First Assistant Public Defender Joseph Ehmann.

The current situation could leave defense counsel conflicted in weighing their client's interests against their own, he argued.

"While an attorney has an ethical obligation to not misrepresent the record, the attorney is under no obligation to highlight aspects of the record that may only arguably be relevant to refuting the issues raised. That is the government's job."

Posted by Marcia Oddi on Tuesday, April 26, 2011
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 20 NFP)

For publication opinions today (2):

In Wachovia Financial Services, Inc. v. Dune Harbor, LLC, et al. , a 14-page opinion, Judge Robb writes:

This case involves lenders who contend priority for their liens in the foreclosure of a failed real estate development project in Portage, Porter County, Indiana. Wachovia Financial Services, Inc. (“Wachovia”) appeals from a trial court's summary judgment in favor of Lefty's Co-Ho Landing, Inc. (“Lefty's”). Wachovia raises four issues for our review, of which we find the first dispositive and restate as: whether a vendor's lien was created in favor of Lefty's and in force when Wachovia recorded its mortgages. Concluding that a genuine issue of material fact remains as to whether a vendor's lien, if created, was in force when Wachovia recorded its mortgages, we reverse and remand. * * *

Genuine issues of fact remain as to whether a vendor's lien was created in favor of Lefty's, and if so, whether it was abandoned or extinguished before Wachovia recorded its mortgages. Therefore, the trial court's summary judgment order that the purported vendor's lien of Lefty's exists and takes priority over Wachovia's mortgages was made in error, and we reverse and remand for further proceedings.

In Lola Austin v. I.D.C.S. , a 16-page opinion, Judge Barnes writes:
Lola Austin appeals the trial court's affirmance of Family and Social Services Administration's (“FSSA's”) imposition of a transfer penalty upon her application for Medicaid nursing home benefits, which resulted in her being ineligible for such benefits for seven months. We affirm.

The restated issue before is whether FSSA erred in imposing a transfer penalty based upon Austin's payment of $35,500 to her nephew, James Mack, and James's wife, Julianne Mack, prior to applying for Medicaid nursing home benefits. * * *

If, as here, there is a finding that a Medicaid applicant disposed of assets for less than fair market value during the penalty period, the applicant may avoid the transfer penalty if he or she can prove that he or she intended to dispose of the assets for fair market value, or the assets were transferred exclusively for a purpose other than to qualify for medical assistance, or all transferred assets have been returned to the applicant. 405 Ind. Admin. Code 2-3-1.1(k). Austin makes no argument that she is exempt from the transfer penalty for making a less than fair market value transfer of assets under any of these provisions.

NFP civil opinions today (7):

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

Matter of the Supervised Estate of Mary Mikels (NFP)

Walter Wayne Bowles v. Terri E. Bowles (NFP)

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

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

Stephanie Henr v. James Henry (NFP)

Anthony Scott v. Saundra L. Walden (NFP)

NFP criminal opinions today (13):

Michael D. Bennett v. State of Indiana (NFP)

Antonio Dallas Jenkins v. State of Indiana (NFP)

Timothy Robertson v. State of Indiana (NFP)

Earl Wilson v. State of Indiana (NFP)

Lyle Tucker v. State of Indiana (NFP)

Jeremiah Farmer v. State of Indiana (NFP)

Marvin Smith v. State of Indiana (NFP)

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

Andrew Peters v. State of Indiana (NFP)

Alisha Gentry v. State of Indiana (NFP)

David Griffin v. State of Indiana (NFP)

Christopher Conwell v. State of Indiana (NFP)

Myron Bernard James v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 26, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Merit selection for Lake judges heads to governor"

HB 1288 is "ready for enrollment." Although, as Dan Carden reports today in the NWI Times, it requires merit selection for all Superior Court judges in Lake County, the bill covers a lot of other court territory.

Posted by Marcia Oddi on Tuesday, April 26, 2011
Posted to Indiana Courts

Courts - "SCOTUS Weighs Whether To Limit Data Mining" [Updated]

Fascinating, nearly 5-minute story this morning by Nina Totenberg of NPR, that begins:

At the U.S. Supreme Court Tuesday, the justices for the first time will hear a case that tests what limits the government may put on data mining for commercial purposes. At issue is whether a state may bar the buying, selling, and profiling of doctors' prescription records for use by pharmaceutical sales representatives.

Under federal and state law, pharmacies are required to keep records of every doctor's prescription, and while patient privacy is protected by federal law, doctor privacy is not.

Pharmacies can and do sell prescription information to data miners, who in turn aggregate it to show each doctor's name, the number of prescriptions written for each drug, prescriptions for similar drugs, and changes from one drug to another. The data miners then sell that information to drug manufacturers, to help sales representatives target doctors for sales pitches and try to get them to prescribe, for example, a brand name instead of a generic.

The case is Sorrell v. IMS Health Inc. Here is the SCOTUSblog case page.

[Updated at 12:30 PM] "Fight Over How Drugs Are Pitched" was the heading to this story in yesterday's NYT, reported by Natasha Singer. From the lengthy story:

The concern over marketing based on doctor-specific prescription records revolves around the argument that it makes commercial use of private health treatment decisions — initiated in nonpublic consultations between doctor and patient, and completed in government-regulated transactions with pharmacists.

The data has become more available because pharmacies, which are required by law to collect and maintain detailed files about each prescription filled, can sell records containing a doctor’s name and address, along with the amount of the drug prescribed, to data brokers. (The records are shorn of patient names and certain other personal details covered by the Health Insurance Portability and Accountability Act, known as H.I.P.A.A., the federal legislation governing a patient’s privacy.) Data brokers in turn aggregate the records for use in medical research and marketing. * * *

Vermont enacted its prescription confidentiality law with the idea that drug makers do not have an inherent right to a doctor’s identifiable prescription information for use in marketing because the data originated in highly government-regulated, nonpublic health care transactions, said Mr. Sorrell, the Vermont attorney general.

Posted by Marcia Oddi on Tuesday, April 26, 2011
Posted to Courts in general

Monday, April 25, 2011

Ind. Gov't. - Even more on: Concerns re SB 159

SB 159, about which the ILB posted three entries in mid-April, arrived at the Governor's office today without further amendment.

What is the objection? In my opinion, if the State has written federal language into the Indiana laws or rules, it does not make a difference if the feds repeal or amend their version, the State is stuck with what it has enacted until the State acts. And the same holds if the State incorporates a federal provision by reference. The State may not delegate that lawmaking authority to the federal government.

SB 159 provides otherwise. See p. 3. For example:

If:
(1) a proposed rule is adopted by a board under subsection
(e)(1) based on a determination by the commissioner under
subsection (a)(1)(A) and the federal law, rule, or regulation on
which the adopted rule is based is later repealed or otherwise
nullified by legislative or administrative action, then that part
of the adopted rule that corresponds to the repealed or
nullified federal law, rule, or regulation is void as of the
effective date of the legislative or administrative action
repealing or otherwise nullifying the federal law, rule, or
regulation.

Posted by Marcia Oddi on Monday, April 25, 2011
Posted to Indiana Government

Ind. Courts - "Judge orders recount panel to explain White lag"

Carrie Ritchie and Mary Beth Schneider of the Indianapolis Star report this evening:

A Marion County judge has ordered the Indiana Recount Commission and the State Republican chairman to explain why they haven’t moved quickly to resolve Democrats’ challenge to Charlie White’s eligibility to serve as secretary of state.

On April 7, Marion Circuit Court Judge Louis F. Rosenberg ruled the Democrats’ challenge is valid and told the Recount Commission to move forward with it quickly.

Attorneys for the Democrats filed a motion today to urge Rosenberg to resolve the matter in his court or to set a schedule the commission must follow to resolve the complaint.

Rosenberg agreed to hold a hearing on the issue Thursday.

The Democrats claim the commission hasn’t moved quickly enough to set hearing dates and they also criticized State Republican Chairman Eric Holcomb for not appointing a commission member to replace White, who serves on the three-member commission but has recused himself from matters pertaining to his own case.

AP reporter Charles Wilson reported earlier this afternoon:
Attorneys for state party Chairman Dan Parker said in papers filed in Marion Circuit Court that the Indiana Recount Commission had yet to meet to discuss White's candidacy despite an April 7 ruling ordering it to handle the issue "expeditiously."

"It is now nearly three weeks since this court ordered the commission to move expeditiously and offered the commission the opportunity to work to restore the credibility of the political system in the eyes of Indiana voters," the motion said. * * *

Since the April 7 ruling, Parker has named a new Democratic member to the politically appointed panel and White has recused himself as required by state law. GOP Chairman Eric Holcomb has yet to appoint White's replacement.

White's attorney appealed the decision last week in a move that Democratic attorneys described as a stalling tactic to gain time for legislators to change the law governing who would replace White if he were removed. Democrats say state law currently requires the runner-up, Democrat Vop Osili, to replace White — but a bill in the General Assembly would allow such vacancies to be filled by the governor. * * *

White's attorney, Jim Bopp, says the case is now in the hands of the Indiana Court of Appeals.

"We've appealed the judge's ruling, and that means the ruling isn't going to be acted upon until the courts decide if his ruling is valid or not," Bopp said.

But Democratic attorney Bill Groth said state law allows the case to continue unless a stay is ordered by the trial court or the Court of Appeals. Groth also said Judge Louis Rosenberg's ruling was not a final order and thus not immediately appealable, and he intends to file documents to have the appeal set aside.

Here is Judge Rosenburg's April 25th order.

Posted by Marcia Oddi on Monday, April 25, 2011
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending April 21 2011

Here is the Clerk's transfer list for the week ending April 21, 2011. It is one page (and 9 cases) long.

No petitions to transfer were granted.
__________

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, April 25, 2011
Posted to Indiana Transfer Lists

Ind. Courts - "Judge Recovering After Being Hit By Car"

From Eagle County 93.3 FM:

(Penntown, Ind.) – The driver who hit and injured a Dearborn County judge Saturday has been cited for a traffic violation.

The Ripley County Sheriff’s Office says Jon Cleary was wearing a green, reflective traffic vest as he was standing between lanes taking donations for a little league baseball organization at the intersection of State Road 101 and State Road 46 in Penntown.

Cleary, 34, is the judge of Dearborn County Superior Court I.

Just before 1:30 p.m., A 2003 Chevrolet Malibu driven by Marvin F. Kirschner was turning north onto SR 101 when it struck Cleary around 1:26 p.m.

Cleary’s wife said he suffered a concussion and broken collar bone. He is now recovering at his home in the St. Leon area.

Kirschner was not injured according to the sheriff’s office. He was cited at the scene then released.

Posted by Marcia Oddi on Monday, April 25, 2011
Posted to Indiana Courts

Ind. Gov't. - The calm before the storm ...

Niki Kelly of the FWJG has just tweeted:

Last week of the Indiana legislative session but you wouldn't know it from the inactivity today. Very few cc's and not much on calendar.

Posted by Marcia Oddi on Monday, April 25, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 6 today (and 13 NFP)

For publication opinions today (6):

In BP Products North America, et al. v. Indiana Office of Utility Consumer, et al. , a 17-page opinion, Sr. Judge Sharpnack writes:

Appellants BP Products North America, Inc. (“BP”), and United States Steel Corporation (“U.S. Steel”) appeal from a decision made by the Indiana Utility Regulatory Commission (“the Commission”) involving Appellee Indiana Office of Utility Consumer Counselor and Appellee/Cross-Appellant Northern Indiana Public Service Company (“NIPSCO”). We reverse and remand in part and affirm in part.

The following restated issues are dispositive:
I. Whether the Commission erred in determining that BP was acting as a “public utility” as that term is defined under Indiana law.
II. Whether the Commission erred in holding that BP violated Indiana's Service Area Assignments Act, a statute governing electricity suppliers. * * *

The Commission erred in its interpretation of the controlling statutes and case law as they apply to BP's contracts with U.S. Steel, Ineos, Praxair, and Marsulex. Accordingly, we reverse the Commission's order as it applies to these contracts, and we remand with instructions that the Commission vacate this portion of the order. We affirm the Commission's order as it pertains to BP's contract with the City of Whiting. Reversed and remanded in part and affirmed in part.

In Sharon S. York, et al. v. Donald Fredrick, et al. , a 17-page opinion, Judge Kirsch writes:
[I] Here, none of the Yorks was involved with making the funeral arrangements for Johnson and had little, if any, contact with the Defendants. The upset experienced by the Yorks upon learning that Johnson's casket and vault had been damaged during the burial does not rise to the same level of egregiousness as the situation in Blackwell. As all of the Yorks testified, the remains were not lost and there was no damage to Johnson's remains. Further, as previously stated, they were not present during the burial, and they voluntarily exposed themselves to the exhumation by either being present when it occurred or by later viewing pictures and video taken when it occurred. We therefore conclude that the present case is distinguishable from Blackwell. The trial court did not err in dismissing the Yorks' claims of negligent infliction of emotional distress for failure to state a claim.
In Allan B. Zukerman, et al. v. Robert L. Montgomery, et al. , an 18-page opinion, Judge Brown writes:
The Zukerman Parties raise two issues, which we revise and restate as whether the court erred in granting the motions to enforce the mediated settlement agreement. We reverse and remand. * * *

Based upon the record and the language of the Settlement Agreement, we conclude that the material and essential terms of the Settlement Agreement are not reasonably definite and certain so that the intention of the parties may be ascertained. See Wenning, 827 N.E.2d at 629 (holding that the contract which involved the conveyance of real property was not enforceable as a matter of law because it was too indefinite in its essential terms, finding that the subject matter of the contract was not identifiable from the terms of the contract, and noting that a contract's material terms must be reasonably definite and certain so that the intention of the parties may be ascertained, and that the court cannot re-write and then enforce contracts which to the knowledge of the court, the parties themselves did not enter into). Accordingly, the trial court erred in granting the consolidated motions to enforce the Settlement Agreement. We reverse the court's grant of the consolidated motions to enforce the Settlement Agreement and remand for further proceedings

In Melissa Kay Sneed v. State of Indiana, an 11-page opinion, Chief Judge Robb concludes:
Sneed’s $25,000 bail is not excessive, but the trial court abused its discretion by requiring cash only bail and denying Sneed’s request for the option of a surety bond. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
In In Richard Sigo, Jr. v. State of Indiana , a 14-page opinion, Chief Judge Robb writes:
Richard Sigo, Jr. brought this lawsuit against his insurer, Prudential Property and Casualty Insurance Company (“Prudential”), to recover for the fire loss of his home. Prudential contends Sigo caused the fire and has refused to pay the claim. Concurrently with this civil litigation, Sigo was charged and tried for arson of his home, and was acquitted by a jury. At issue in this interlocutory appeal is the trial court's grant of Prudential's motion in limine to exclude from the civil jury trial on Sigo's breach of contract claim any evidence concerning Sigo's criminal trial and acquittal of arson. Sigo raises one issue on appeal, which we restate as whether the trial court abused its discretion in weighing the probative value of the evidence against the danger of unfair prejudice to Prudential. We conclude the trial court did not abuse its discretion in finding the probative value of Sigo's criminal trial and acquittal was substantially outweighed by the danger of unfair prejudice, and we therefore affirm.
In Barry T. Owens v. State of Indiana , an 8-page opinion, Judge Darden writes:
Barry T. Owens appeals from his sentence, following a jury trial, for two counts of Class B felony dealing in cocaine and one count of Class D felony maintaining a common nuisance. We affirm.

ISSUES: 1. Whether the trial court erred in imposing court costs without specifying in its sentencing order that Owens would not be imprisoned for nonpayment thereof. 2. Whether the trial court erred in imposing public defender reimbursement fees as a condition of Owens' probation. * * *

[1] Before 2002, our Supreme Court applied the general rule “that when fines or costs are imposed upon an indigent, the trial court must expressly state that the defendant shall not be imprisoned for failing to pay the fine.” * * *

In 2002, the Whedon Court reiterated the general rule; however, it rejected the proposition “declaring that trial courts' sentencing orders must necessarily recite an express prohibition upon imprisonment for failure to pay fines or costs.” * * *

[2] Here, as in Rich and Kimbrough, the matter of Owens' indigency is not yet ripe for appellate review, because he has yet to complete his executed sentence. Thus, at the time of initial sentencing, the trial court was under no obligation to make a determination of Owens' ability to pay. Accordingly, we conclude that the trial court did not abuse its discretion when it failed to hold a hearing to determine Owens' ability to reimburse the Public Defender Fund at the time of his initial sentencing.

NFP civil opinions today (4):

Renee Wilson v. Indiana Horse Racing Commission (NFP)

Liberty Mutual Fire Insurance Co. v. Gloria D. Tussey (NFP)

Term. of Parent-Child Rel. of K.V.; P.V. v. IDCS (NFP)

Margaret Roupp, et al. v. Robert Roupp (NFP)

NFP criminal opinions today (9):

Jerry Williams v. State of Indiana (NFP)

Dametrick M. Gray v. State of Indiana (NFP)

Eric Nevels v. State of Indiana (NFP)

Kurtis Shorter v. State of Indiana (NFP)

Malcolm Armour v. State of Indiana (NFP)

Calvert Byrd v. State of Indiana (NFP)

Zuryzaday J. Flores v. State of Indiana (NFP)

Marlonda Tigner v. State of Indiana (NFP)

Anthony Price, Jr. v. State of Indiana

Posted by Marcia Oddi on Monday, April 25, 2011
Posted to Ind. App.Ct. Decisions

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

In U.S. v. Curlin (SD Ind., Barker), a 10-page opinion, Judge Flaum writes:

In June 2008, Marcus Curlin stopped paying rent on his Indianapolis residence. Five months later, his landlord obtained an eviction order in an Indiana court requiring Curlin to vacate the property by November 17, 2008. He did not. After Curlin had flouted the order for over two weeks, officers came to the residence to execute the eviction order. There, they discovered marijuana and guns in plain view. Curlin, who had two prior felony convictions, was arrested and charged with possession of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Following the denial of his motion to suppress the guns, Curlin entered a conditional plea of guilty to the charges, reserving his right to appeal the district court’s refusal to suppress the gun evidence. On appeal, Curlin argues that the district court abused its discretion in denying his motion to suppress without an evidentiary hearing. Because Curlin has failed to identify any disputed issues of fact that affect the outcome of the motion, we affirm the judgment of the district court.

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

Ind. Gov't. - Bills in conference

Here is the general link for Bills in Conference.

Unfortunately, the bill number links aren't live. Ideally, each bill number would be linked to the Action List for that bill.

For instance, currently the HB 1005 entry on the Bills in Conference list shows only:

First House Chairperson: Clere and House Conferees: Cheatham

But if you go to the Action List for 1005, which takes several additional (and unnecessary) clicks, you will see:

04/21/2011 H House conferees appointed: Clere and Cheatham
04/21/2011 H House advisors appointed: Ellspermann, Espich and Battles
Regardless, however, this is the stage in the General Assembly when the online reporting begins to fail.

One essential resource during this part of a session is the Citations Affected Report. This is how you can follow a provision that impacts the Indiana Code, no matter what bill it is in. But always check the date on the Citations Affected report to see how current the information is.

Going back to HB 1005, look at its main page, at the bottom. There is a line for "Conference Committee Reports." Each house will have to have filed an identical report, and each house will have to have voted to accept the same report, before the bill can be enrolled.

And don't forget the other actions. A house can simply concur in the second house amendments, making the bill eligible for enrollment. Or if the first house has dissented from the second house amendments and the bill has gone to conference committee, the first house at any point can simply move to withdraw its dissent and concur in the second house amendments.

Posted by Marcia Oddi on Monday, April 25, 2011
Posted to Indiana Government

Ind. Gov't. - "With one week to go, there is no telling what’s left to come"

That from this good overview today by Niki Kelly in the Fort Wayne Journal Gazette, headlined "Finishing kick gets squeezed: Lawmakers on tight plan to OK budget, redistricting."

Maureen Hayden of CNHI Statehouse Bureau has this story that touches on additional issues.

Kristin Maiorano of WLFI 18 gives the view of several legislators in its listening area.

Focusing on specific issues:

Kevin Allen of the South Bend Tribune reports: "Indiana House makes some alterations to redistricting maps: General Assembly closing in on district retooling."

Lesley Stedman Weidenbener's weekend column for the Louisville Courier Journal is headed: "Anti-bolting provision would weaken legislative minorities." Some quotes:

Lawmakers are facing an interesting policy question as they enter the last week of the 2011 session: Should they tamp down the ability of a minority caucus to block legislative business?

Republicans — who have the majority in the House and Senate — say it’s a necessary step to protect the legislative institution, to protect democracy from disruption.

Democrats, though, say it’s a terrible idea that is anti-American and would disenfranchise all the Hoosiers represented by members who happen to serve in the minority.

For more, see this detailed April 21st ILB entry that gives the text of the 1867 law, and the current proposal.

Posted by Marcia Oddi on Monday, April 25, 2011
Posted to Indiana Government

Ind. Gov't. - "Conference committees make anything possible in last week of session"

A second good story this weekend from Dan Carden of the NWI Times, and another good lede. Some quotes:

INDIANAPOLIS | It's conference committee week at the Indiana General Assembly, which means darn near anything can suddenly appear in any piece of legislation that looks like it's headed for the governor's desk.

"I've seen lots of strange things happen in conference committees," said state Sen. Earline Rogers, D-Gary.

Officially, when legislation is approved by the House and Senate but contains different provisions, a few members from each chamber meet in a conference committee to decide what should be in the final version of the legislation.

The conference committee report, containing the agreed-upon new bill, is then approved again by both chambers before going to the governor. This satisfies the Indiana Constitution's requirement that the House and Senate each approve identical legislation.

But in practice, conference committees will take proposals from bills that are not moving and insert them into legislation that is -- often reviving measures once thought dead for the year.

State Rep. Chet Dobis, D-Merrillville, said conference committees are often where the real work of the General Assembly gets done.

Few rules govern the process, but in general either the House or Senate must have approved a proposal once for it to go into a conference report. The proposed addition also must be germane, or close to the same subject, as the original bill. * * *

"Conference committees usually are most effective and entertaining when a Legislature is under two-party control," [State Rep. Linda Lawson, D-Hammond] said.

But 2011 is still a budget year, and House Bill 1001 -- the state's 2012-13 budget -- is exempt from the germaneness requirement.

That gives lawmakers a last-minute home for just about anything they want to try to slip into law.

They'll have to move fast, though. The legislature is required to adjourn for the year no later than Friday.

See this ILB entry from March 18th for more on the germaneness rule.

Posted by Marcia Oddi on Monday, April 25, 2011
Posted to Indiana Government

Ind. Law - More on: "Should those jailed for minor crimes have voting rights?"

Following up on its long story last Thursday on the oral argument that day in the case of David Snyder v. J. Bradley King, the Indianapolis Star has this editorial today headed "Misdemeanors miss the mark." A sample:

Indiana is one of just 10 states that take away voting rights from people convicted of misdemeanors as well as felonies. Going back to the mid-19th century, the state has thus applied a provision in the Indiana Constitution that someone convicted of an "infamous crime" may be denied the right to vote. The state does allow re-registering once terms of the sentence are completed.

Common sense says a misdemeanor -- and even low-level felonies -- would not merit the label "infamous." The high court, which heard arguments Thursday, certainly can offer clarity in that regard.

Posted by Marcia Oddi on Monday, April 25, 2011
Posted to Ind. Sup.Ct. Decisions | Indiana Law

Ind. Gov't. - "Planned Parenthood funding fight may force Gov. Daniels to choose between social, fiscal conservatism"

Great headline today for this story by Dan Carden of the NWI Times. Even better is the story lede:

INDIANAPOLIS | The Republican-controlled Indiana General Assembly is close to forcing Republican Gov. Mitch Daniels to choose between his dedication to financial prudence and his social conservative principles.
More from the story:
At issue is House Bill 1210, which the Senate changed last week to defund Planned Parenthood of Indiana, the largest abortion-provider in the state and a frequent punching bag for anti-abortion conservatives.

The legislation, which is headed to a House-Senate conference committee, prohibits the state from distributing $3 million in federal funds that are used to provide 22,000 low-income Hoosiers with low-cost birth control. Federal funds are prohibited by law from being spent on abortion.

Betty Cockrum, president of Planned Parenthood of Indiana, said if Indiana blocks federal funds for birth control services at Planned Parenthood -- which has health centers in East Chicago, Gary and Michigan City -- it will lead to more unwanted pregnancies in Indiana and more abortions.

"If they want to reduce the number of abortions, it makes no sense to make birth control harder to get for thousands of Hoosiers who rely on Planned Parenthood of Indiana for their preventive health care," Cockrum said.

Other provisions of the pending legislation also would make it more difficult for Indiana women to obtain an abortion if they want one, likely leading to more births -- at an added cost to the state.

According to the Family and Social Services Administration, more than half of Indiana births are paid for by Medicaid, the state-federal health insurance program for low-income Americans. * * *

For state Sen. Scott Schneider, R-Indianapolis, who led the Senate charge to defund Planned Parenthood, it's wrong to reduce the question to dollars and cents.

"The sanctity of human life should supersede any of those decisions," Schneider said.

But the governor has a track record of supporting small expenses today to avoid much larger expenses down the road, especially when the money at stake comes from the federal government.

For example, Daniels' prison sentencing reform plan would save Indiana billions in prison construction and staffing costs in years to come by reducing sentences now for low-level felony offenders.

So what will the anti-abortion, fiscally conservative governor do regarding the proposed defunding of Planned Parenthood?

[More] See also this Sunday column in the Evansville Courier & Press by Eric Bradner. It begins:
If it's possible for a key issue to exist at this stage in the 2012 governor's race, it could whether Planned Parenthood should receive any government dollars.

The expected Republican candidate, U.S. Rep. Mike Pence, has made defunding the organization that provides women's health services — including, at some locations, abortions — his public focus in recent months.

And former Indiana House Speaker John Gregg, the man who is growing more likely to become his Democratic opponent, is talking about it too.

"The problem in America isn't Planned Parenthood. It's unplanned parenthood," Gregg said at the Washington Township Democratic Club in Indianapolis last week, according to Howey Politics Indiana.

Posted by Marcia Oddi on Monday, April 25, 2011
Posted to Indiana Government

Ind. Gov't. - "Cities losing in legislature"

A must read editorial today in the Fort Wayne Journal Gazette that begins:

Cities and towns needed some financial attention from Indiana lawmakers. What they got instead this year was the General Assembly acting as a Statehouse branch of their city councils. In the week ahead, they need lawmakers to remember their proper role.

Officials with the Indiana Association of Cities and Towns have worked over past sessions to urge greater local control over finances. This session, however, they’ve struggled to keep legislators from stripping them of control over firearms, apartment inspections, local wages and more.

“It’s a fundamental shift in the way the General Assembly is acting,” said Matt Greller, IACT executive director. “They are acting more like a city council at the state level.”

The apartment inspection legislation, House Bill 1543, would prohibit local government from inspecting rental units unless there is probable cause of a code violation or the violation is in plain view. It would also prohibit local government from charging an inspection fee.

The bill’s sponsor is Indianapolis Republican Mike Speedy – a real estate developer.

The limits on guns regulations also limit local government authority. Speedy is the House sponsor of SB 292, which would prohibit local government units from regulating guns within their borders. Greller said IACT’s objection is to removing restrictions on the discharge of firearms.

A gun owner would be allowed to fire a weapon in his or her backyard with no regard for children playing on a swing set next door, Greller notes. The bill even gives gun owners the right to sue local government if a local measure restricts their gun rights.

At best, both bills are sorry examples of lawmakers trampling local government authority. At worst, they represent policy that endangers lives.

While lawmakers have been busy catering to powerful lobby groups and their own business interests, they’ve offered no help to local government in providing services threatened by property tax caps.

Posted by Marcia Oddi on Monday, April 25, 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, please become an ILB supporter! Check the ILB supporters out via the links in the upper right-hand column of this page, including the law firm and individual supporters. Please put your check in the mail today!

From Sunday, April 24, 2011:

From Saturday, April 23, 2011:

Posted by Marcia Oddi on Monday, April 25, 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 4/25/11):

Wednesday, April 27th

Next week's oral arguments before the Supreme Court (week of 5/2/11):

Thursday, May 5th

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 4/25/11):

Tuesday, April 26th

Friday, April 29th

Next week's oral arguments before the Court of Appeals (week of 5/2/11):

Wednesday, May 4th

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

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


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

Posted by Marcia Oddi on Monday, April 25, 2011
Posted to Upcoming Oral Arguments

Sunday, April 24, 2011

Courts - Turmoil involving Supreme Court makeup in Iowa and Wisconsin continues

Stories this weekend:

From the Milwaukee Journal-Sentinel, this story by Larry Sandler and Jason Stein headlined "Count on some chaos in state Supreme Court recount."

From the DesMoines Register, this story by William Petroski headed "Paulsen's words kill effort to impeach justices." A quote:

But legislators favoring impeachment said they will keep pressing their case, while acknowledging they lack the 51 votes in the 100-member Iowa House to force an impeachment trial in the Senate.

"It's time we start focusing on our constitution," said Rep. Tom Shaw, R-Laurens, one of five lawmakers who filed the impeachment resolutions Thursday in the Iowa House. "The Supreme Court is granting itself power where no power exists. The power exists in the Legislature."

See also the sidebar, which reports:
Polk County District Judge Michael Huppert has thrown out a lawsuit that challenged November's vote that ousted three members of the Iowa Supreme Court. The suit, filed by three lawyers - including former Iowa Democratic Party Chairman John Roehrick - challenged the ballots used. It contended judicial retention ballot laws didn't meet a requirement of the Iowa Constitution calling for judges to stand for retention on a "separate ballot."

Posted by Marcia Oddi on Sunday, April 24, 2011
Posted to Courts in general

Saturday, April 23, 2011

Law - iPhone tracker logs have been an open secret with law enforcement for at least a year

Check out the story from CNet's Declan McCullagh - here is a sample:

Apple has never publicized the undocumented feature buried deep within the software that operates iPhones and iPads, which became the topic of criticism this week after a researcher at a conference in Santa Clara, Calif., described in detail how it works. Apple had acknowledged to Congress last year only that "cell tower and Wi-Fi access point information" is "intermittently" collected and "transmitted to Apple" every 12 hours.

At least some phones running Google's Android OS also store location information, Swedish programer Magnus Eriksson told CNET today. And research by another security analyst suggests that "virtually all Android devices" send some of those coordinates back to Google.

Among computer forensics specialists, those location logs--which record nearby cell tower coordinates and time stamps and cannot easily be disabled by someone who wants to use location services--are not merely an open secret. They've become a valuable sales pitch when targeting customers in police, military, and intelligence agencies.

The U.K-based company Forensic Telecommunications Services advertises its iXAM product as able to "extract GPS location fixes" from an iPhone 3GS including "latitude, longitude, altitude and time." Its literature boasts: "These are confirmed fixes--they prove that the device was definitely in that location at that time." Another mobile forensics company, Cellebrite, brags that its products can pluck out geographical locations derived from both "Wi-Fi and cell tower" signals, and a third lists Android devices as able to yield "historical location data" too.

Posted by Marcia Oddi on Saturday, April 23, 2011
Posted to General Law Related

Ind. Gov't. - "Major issues avoid Senate public hearing process"

Deanna Martin of the AP has this story, which is in a number of publications today. Some quotes:

Republicans who control the Indiana Senate have advanced major, politically charged proposals in the final weeks of the legislative session by inserting amendments into other bills — avoiding public hearings on issues including defunding Planned Parenthood, fining boycotting lawmakers and changing rules surrounding the indicted secretary of state.

If the legislation is such a good idea, critics ask, why not go through the typical public hearing process? * * *

Senate President Pro Tem David Long, R-Fort Wayne, said the Senate prefers to follow the typical legislative process: a public hearing and committee vote, followed by a second reading before the full Senate when changes can be made and then a full Senate vote.

But the five-week boycott by House Democrats earlier this session changed the timeline, Long said, giving committee chairmen less time to schedule hearings.

"This year is an unusual year, a difficult year and a compressed year because we've lost all that extra time," Long said. "It's put us in a very unusual spot."

In the past week, the Senate used amendments to insert several controversial provisions into other bills.

The Senate put a measure to cut funding for Planned Parenthood into a bill tightening abortion restrictions. It inserted into an elections bill a provision to allow GOP Gov. Mitch Daniels to appoint a new secretary of state if Republican Charlie White, who faces charges of voter fraud, is found to have been ineligible — a move Democrats branded a power grab. And it changed the budget to provide a way to fine boycotting lawmakers, a direct response to the House Democrats' walkout. * * *

Sen. Mike Young, a Republican from Indianapolis who sponsored the amendments to change the secretary of state rules and add fines for boycotting legislators, noted that the bills haven't finished their legislative journey. They could get public hearings as Democrats and Republicans in the House and Senate try to work out compromises before the session ends Friday. [ILB: Hearings would be surprising to many] * * *

[Senate Minority Leader Vi Simpson, D-Bloomington] chalks up the Senate's recent actions to new, more conservative members who she said may not understand the Senate's history and tradition of civility.

"What's happened this week would never have happened in the Senate five or 10 years ago," she said. "It really has shown that the Senate has changed."

Posted by Marcia Oddi on Saturday, April 23, 2011
Posted to Indiana Government

Courts - "Sealed Records Exposed In Major Court Gaffe: Federal prosecutors scramble to cloak details of ongoing probes"

The Smoking Gun has the story yesterday. The amazing report begins:

APRIL 22--In a shocking failure to protect sensitive details about dozens of ongoing criminal investigations, federal officials somehow allowed confidential information about sealed cases to be publicly accessible via the court system’s online lookup service, The Smoking Gun has learned.

Over the past nine months, details of 40 separate sealed court applications filed by federal prosecutors in Alabama were uploaded to PACER, the web-based records system that counts nearly one million users, including defense lawyers, prosecutors, journalists, researchers, private investigators, and government officials.

The court applications, made by ten separate prosecutors, included requests to install hidden surveillance cameras, examine Facebook records, obtain credit information on certain individuals, procure telephone records, and attach devices on phone lines that would allow agents to track incoming and outgoing calls. Remarkably, the U.S. District Court records--which covered filings as recent as April 11--included specific names, addresses, and phone numbers that should never have appeared on PACER.

The confidentiality breach was first discovered by a TSG reporter and brought to the attention of Department of Justice representatives and court officials in the Middle District of Alabama, which is comprised of 23 counties and includes Montgomery, the state’s second-largest city. By late yesterday afternoon, prosecutors had the confidential information scrubbed from the online records system and placed under judicial seal at the federal courthouse in Montgomery.

The entry includes links to some examples, now scrubbed of identifying information.

Posted by Marcia Oddi on Saturday, April 23, 2011
Posted to Courts in general

Ind. Decisions - More on: Supreme Court grants immediate review in Lake County election case

Updating this ILB entry from April 21st, Pete Nickeas of the NWI Times had this report.

Posted by Marcia Oddi on Saturday, April 23, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Parking deal costs city $2.9M: About 15 percent of upfront payment will cover advisory costs"

Jon Murray of the Indianapolis Star today looks at the upfront costs of Indy's 50-year lease of its parking meters. Some quotes from the long story:

City leaders are still weighing how to spend a $20 million upfront payment from a trio of vendors that leased Indianapolis' parking meters for 50 years.

But that sum won't all go for road, infrastructure and parking-related projects -- nearly $3 million will pay the bill for financial, legal and communication advisers who helped craft and win approval for the deal. * * *

Mayor Greg Ballard's office is asking the City-County Council to approve payments totaling $2.9 million, split three ways:

$1.9 million to Morgan Stanley, a financial-services firm with offices around the world.

$950,000 to Ice Miller, an Indianapolis law firm.

$109,000 to Hirons & Co., an Indianapolis public-relations firm. * * *

Deputy Mayor Michael Huber said officials met informally with several financial and law firms before awarding contracts, as they have done in similar deals.

Their talks included price quotes, Huber said. Ice Miller's lawyers worked at rates ranging from $225 to $525 an hour.

Unlike the law firm, Morgan Stanley would not have been paid for most of its work unless the lease deal became a reality.

Huber said Morgan Stanley was "uniquely qualified, because they know the market better than anybody." Ice Miller had experience in public-private partnerships that other firms couldn't match, he said. And Hirons performed communication-related work and organized meetings.

Last fall, critics pointed to multiple potential conflicts of interest in the deal: ACS and the mayor's office have shared a lobbyist in the past, although both insisted he wasn't involved in the negotiations. One of the Ice Miller attorneys taking part was Tom John, at the time the Marion County Republican Party's chairman; Ballard is a Republican.

Posted by Marcia Oddi on Saturday, April 23, 2011
Posted to Indiana Government

Ind. Gov't. - "Indiana's Assault on Women's Health Is Being Led by a Woman"

That is the heading to an April 21st post by Mark Cassello, an Ivy Tech prof, on the Huffington Post.

Posted by Marcia Oddi on Saturday, April 23, 2011
Posted to Indiana Government

Environment - "Richard J. Lazarus appointed Professor of Law at Harvard"

From the news release:

Richard J. Lazarus ’79, one of the nation’s foremost experts on environmental law and also a leading practitioner in the U.S. Supreme Court, will join the Harvard Law School faculty this summer as a tenured Professor of Law. * * *

Announcing the appointment of Lazarus to the Harvard Law School faculty, Dean Martha Minow said: "I am thrilled to welcome back to the HLS our alum, Richard Lazarus. Preeminent scholar-practitioner of environmental law, superb Supreme Court advocate, and consummate teacher and mentor. Richard is an all-star. It is fantastic that he will bring his enormous talents and wisdom to this community, where students, faculty, and staff eagerly await his arrival.”

Said Lazarus: “I am thrilled to be returning to Harvard Law School and looking forward to working with Professor Jody Freeman and Professors Cass Sunstein and Wendy Jacobs to build upon the fabulous environmental law program Harvard already enjoys and to fulfill our shared ambition to establish the best environmental law program in the nation,” said Lazarus. “No less exciting, however, is the tremendous opportunity to work closely with HLS students.”

Lazarus joined the Georgetown faculty in 1996, and in addition to his current chair he also held the John Carroll Research Professorship of Law there. He received Georgetown’s 2002 Frank Flegal Teaching Award, a faculty peer award based on a survey of faculty and students. Prior to joining the faculty at Georgetown, he was a member of the faculty at Indiana University Bloomington and at Washington University, where law students honored him with their “best teacher” award. * * *

Lazarus’s 2004 publication, The Making of Environmental Law (University of Chicago Press), is widely hailed as the definitive history of the emergence and evolution of modern environmental law in the United States. His most recent written work, as principal author, was Deep Water – The Gulf Oil Disaster and the Future of Offshore Drilling – Report to the President of the United States (2011).

Posted by Marcia Oddi on Saturday, April 23, 2011
Posted to Environment

Ind. Gov't. - John Russell named Indiana Journalist of the Year

John Russell of the Indianapolis Star has been named Indiana Journalist of the Year by the Indiana Chapter of the Society of Professional Journalists (SPJ).

A totally-deserved award, Russell's recent stories have exposed "cronyism, ethical lapses and conflicts of interest between Duke Energy and state regulators."

Here is a long list of ILB entries re John Russell stories.

[More] Oddly, I can't find anywhere online where all the "Society of Professional Journalists Best of Indiana Journalism Awards competition" results are listed, although the FW New-Sentinel reports:

Award winners from across the state were honored Friday at the annual SPJ Best of the Best Awards banquet at the Indianapolis Marriott North.

Posted by Marcia Oddi on Saturday, April 23, 2011
Posted to Indiana Government

Friday, April 22, 2011

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

In U.S. v. Collins (ND Ind., Van Bokkelen), a 14-page opinion, Judge Herndon, Chief Judge, United States District Court for the Southern District of Illinois, sitting by designation, writes:

The defendant, Garjon Collins, seeks review by this Court of his sentence, asserting that the district judge’s sentence of 108 months of incarceration was unreasonable. The defendant seeks a reduction in sentence of 24 months. We affirm. * * *

The district judge properly considered the § 3553(a) sentencing factors and imposed an appropriate, reasonable sentence in this case. We therefore AFFIRM the sentence the district court imposed upon defendant Collins.

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

Ind. Courts - Still more on: Secretary of State appeals ruling sending Charlie White case back to recount commission

Updating yesterday's ILB entries, Mary Beth Schneider of the Indy Star reports today:

Under a bill the state Senate passed Thursday, the governor would appoint a replacement if embattled Secretary of State Charlie White is found ineligible to have been elected.

Also Thursday, attorneys for White appealed a judge's decision that a challenge to White's eligibility to serve was valid. * * *

The provision to let the governor pick the next secretary of state was put this week into House Bill 1242, which affects everything from where early ballots can be cast to when a candidate can withdraw.

All of those provisions, said Sen. Connie Lawson, R-Danville, caused her to vote for the bill, even though she was one of two Republicans to vote against the amendment involving White. It passed 33-17.

Four Republicans who had voted for that amendment, though, joined all 13 Democrats in opposing the bill. And two -- Sen. Mike Delph, R-Carmel, and Sen. Scott Schneider, R-Indianapolis -- cited the amendment on White as the reason why.

Both said they'd had second thoughts about changing the law amid a legal fight.

"It treats the whole thing unfairly and after the fact," Schneider said. "And I just don't think that sends a good message."

Democrats said the bill amounts to changing the rules in the middle of the game because the legal system hasn't determined whether White can stay in office. * * *

Thursday, White's attorneys filed an appeal of Marion Circuit Judge Louis Rosenberg's April 7 ruling ordering the Indiana Recount Commission to consider the Democrats' challenge of White's eligibility to serve. The commission had dismissed the complaint in December, and the Democrats contested the dismissal in court.

White's attorney, James Bopp, argued that Rosenberg improperly directed the commission to consider issues that are already being decided in the criminal case:

"That is asking the Recount Commission to make the same determination the criminal court is being asked to make."

Attorney Karen Celestino-Horseman, who's representing the Democrats, said she isn't surprised that White is appealing but thinks the appeal will fail.

"Obviously, the Republicans realize there's a problem," she said. "And if we have an opportunity to have our hearing (before the commission), it will be found that he was not legally registered to vote."

A new hearing before the commission is on hold, in part because the state Republican chairman has yet to appoint a new member to the board, Commission Director Brad Skolnik said. He also said the board was waiting to see whether either side sought a stay during the appeal.

Posted by Marcia Oddi on Friday, April 22, 2011
Posted to Indiana Courts

Ind. Gov't. - More on: Indiana Gasification files for construction and operating permits

Updating yesterday's ILB entry on SB 251, there are a number of related stories in the press today.

Eric Bradner reports in the Evansville Courier & Press that "the environmental permitting process is one of three major steps developers have left to take." The other two:

They need the Indiana Utility Regulatory Commission to OK a deal they signed with the Indiana Finance Authority to have the state buy and resell most of their synthetic natural gas.

And they need the federal government to approve construction loan guarantees for the $2.6 billion plant, in case the plant fails.

More:
Critics have pointed to Daniels' role in urging the deal along, and have complained that Leucadia National's top Indiana official, Mark Lubbers, is a former Daniels aide and a close ally of the governor's.

Vectren, which walked away from a deal to buy the synthetic natural gas after extended negotiations, has argued the Indiana Finance Authority's 30-year contract to buy the gas for a fixed price and resell it to Indiana customers is unwise.

The costs and risks, said Vectren executive Jerrold Ulrey in testimony to the Indiana Utility Regulatory Commission, would "exceed any benefit that the arrangement would provide as a hedge against volatile gas prices." * * *

The coal gasification process would produce carbon dioxide, which Indiana Gasification plans to sell to Denbury Resources, Inc., a Plano, Texas-based company that would use it for oil production.

Denbury is seeking to spend $1 billion to build a pipeline from Rockport to the Gulf of Mexico, where it would use the carbon dioxide to force oil out of wells.

State lawmakers are advancing a measure that would give Denbury eminent domain rights to acquire land in Indiana for that pipeline. That bill could pass by the General Assembly's April 29 date for adjournment.

That pipeline, which would give Indiana Gasification a way of dealing with the waste produced through the gasification process, could be a key component to obtaining the federal loan guarantees the developer is seeking.

That bill, of course, is SB 251. Here is a news release from Platts. Some quotes:
The Indiana House of Representatives approved and sent to a conference committee a bill that includes eminent domain language sought by the developer of a proposed carbon dioxide pipeline. * * *

The Indiana Senate, which Republicans also control, voted 28-21 in early February to defeat the original Denbury-based pipeline bill (H.B. 72), with some lawmakers objecting to eminent domain.

But several changes were since made in the proposal to make eminent domain more palatable, including paying a farmland owner and a residential property owner 125% and 150%, respectively, of the appraised land value if property is condemned for a pipeline, Ellspermann said in an interview.

Amended language also contains a provision that calls for the law to fade away in 10 years.

The conference committee is expected to meet next week and the General Assembly is scheduled to end its current session April 29. Denbury president and chief operating officer Tracy Evans said Wednesday in an interview that passing CO2 pipeline eminent domain legislation is "imperative" if states hope to participate in construction of the special pipelines.

Evans said Denbury has signed off-take agreements to buy CO2 from four coal-gasification projects -- Indiana Gasification, Tenaska and Power Holdings in Illinois and Cash Creek Generation in Kentucky. None of the projects are under construction, and most still face major legislative and regulatory challenges.

At least three of the projects -- or the two largest -- must come through before Denbury would consider proceeding with a 700-mile-long pipeline, which is estimated to cost anywhere from $800 million to $1.2 billion, Evans said.

From Ted Evanoff and Heather Gillers in the Indy Star: "House OKs bill for Rockport pipeline: Measure includes power of eminent domain to secure land for coal-gasification plan."

As the ILB first noted last Sunday, the CO2 pipeline, CWIP for nuclear power plants (see SECTION 12 on p. 14 of the April 20th PDF printing), and "clean energy" are all now lumped together in the latest version of SB 251.

Posted by Marcia Oddi on Friday, April 22, 2011
Posted to Indiana Government

Ind. Law - More on "Legislation proposed to regulate homeowners associations"

Updating this ILB entry from April 4th, from Eagle County 99.3 in Lawrenceburg, some quotes from a press release:

Indiana Gov. Mitch Daniels has given final approval to legislation authored by State Rep. David Cheatham (D-North Vernon) that would protect the rights of families in the event they have been wronged by homeowner’s associations.

House Enrolled Act 1058 enables families to turn to the Indiana attorney general’s office for help whenever a homeowner’s association fails to live up to contract responsibilities involving such areas as public safety and construction and renovation of streets, sewers, sidewalks and other capital improvements.

“The attorney general will be able to respond to complaints from residents about alleged criminal activity committed by a homeowner’s association or any member of the association’s board of directors,” Cheatham said. “These complaints could include criminal activity like misappropriation of funds and fraud.”

Cheatham said officials would be able to issue injunctions, order restitution and even order the removal of a board member if illegal activity is proven. * * *

“Since it is difficult for county prosecutors to devote the time and resources to pursue these cases, individual homeowners are left to pay for legal actions out of their own pocket,” Cheatham noted. “It’s a double hit on them, because they are paying their own legal fees and the fees for defense of the homeowner’s association, which often come directly from the dues paid by the resident to the association.”

HEA 1058 gives homeowners the ability to seek justice through Indiana’s court system, with the state’s top law enforcement officer behind them.

Posted by Marcia Oddi on Friday, April 22, 2011
Posted to Indiana Law

Ind. Gov't. - "Tully: GOP intent on killing anti-smoking program"

Take a look at Matthew Tully's column today in the Indianapolis Star. Some quotes:

Once again, Republicans in the Indiana Senate are doing everything they can to make sure efforts to reduce smoking rates in Indiana fail.

This time around, they are trying to kill a state program that is considered one of the nation's most effective anti-smoking efforts. It's partially responsible for Indiana's decline in smoking rates over the past 10 years. Led by Sen. Luke Kenley, R-Noblesville, the effort to drop the program is happening without public debates and through shamefully sneaky last-minute maneuvers.

No surprise, of course. This is part of what has been a pro-smoking pattern at the Statehouse this year. * * *

As the final week of the session approaches, anti-smoking advocates hope to mobilize opposition to the plan and are encouraging supporters to call their lawmakers and the governor's office. But Kenley's decision to make his move at the end of the session, without the benefit of even one hearing, is making the task hard.

Posted by Marcia Oddi on Friday, April 22, 2011
Posted to Indiana Government

Thursday, April 21, 2011

Ind. Courts - More on: Secretary of State appeals ruling sending Charlie White case back to recount commission

Here is a longer, more comprehensive version of Charles Wilson's AP story. Ironically, it is in the Bridgeport, Connecticut Post.

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Indiana Government

Ind. Gov't. - "Rs say it isn't their job to determine if constitution meant it when says rev-raising bills must start in House"

Mary Beth Schneider of the IndyStar just tweeted:

Rs say it isn't their job to determine if constitution meant it when says rev-raising bills must start in House; says that's judicial job.

State constitution says revenue-raising bills "shall" originate in House; Ds challenging Senate bill that has a tax increase in it.

ILB: Don't know right now what bill it is. Wonder if they tacked a pro-courts provision in it also, as has been done in the past.
______________
See, eg, p. 28 of my 2001 paper on the one-subject provision:"Dague v. Piper Aircraft presented such a case. During the last hours of the 1978 legislative session, legislative leaders patched an endangered products liability bill onto the end of a 'judges bill', a 27-section bill relating to the Indiana court system. The subsequent challenge to the constitutionality of the combined act was the first to be decided by the Indiana Supreme Court under the newly revised Article 4, section 19. Here the Court was placed in the position of either invalidating the entire combined courts/products liability act, or issuing a ruling upholding the constitutionality of the act, a “choice” similar to that legislators, and then the Governor, had faced earlier."

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Indiana Government

Ind. Courts - Secretary of State appeals ruling sending Charlie White case back to recount commission

Charles Wilson of the AP is reporting late today in a brief story:

INDIANAPOLIS — Embattled Indiana Secretary of State Charlie White is appealing a judge's ruling sending a dispute over his November election back to the state recount commission.

Marion Circuit Court officials say the notice of appeal was filed Thursday.

White attorney Jim Bopp says the judge's ruling improperly asks the commission to decide an issue that's already being decided in a separate criminal case — whether White committed voter fraud.

Democrats are seeking to have White's candidacy disqualified and their candidate named winner in his place. Judge Louis Rosenberg ruled April 7 that the recount panel should reconsider Democrats' claims that White committed voter fraud by lying about his address on a registration form.

Bopp says such a decision is beyond the scope of the commission's powers.

Secretary of State White and the State Recount Commission are represented respectively by Mr. Bopp and Attorney General Zoeller.

For background, start with this April 10th ILB entry, which includes Judge Rosenberg's April 7th decision and links to earlier entries and the briefs.

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Indiana Courts

Ind. Courts - Supreme Court grants immediate review in Lake County election case

Late yesterday Bill Dolan posted a story headed "Janiec to appeals court: Count me in or election doesn't count" on the NWI Times website. Some quotes:

HAMMOND | Lawyers for Republican George Janiec are asking the Indiana Court of Appeals to cancel and rerun the May 3 Hammond mayoral primary if Janiec isn't part of it.

They made the request this week in a 38-page legal brief seeking to overturn last month's decision by the county elections board to remove Janiec as a mayoral candidate and Lake Superior Court Judge Jesse Villalpando's refusal to restore Janiec's candidacy.

The appellate court hasn't set a date to hear the matter.

Janiec is asking the appeals court to rule on his status as a candidate before Wednesday. If it cannot act that quickly, attorneys R. Cordell Funk, of Schererville, and William Fine, of Highland, will request a May 3 election without him void.

"If this court cannot rule before April 27, 2011, then in addition, Janiec requests that the court void the Republican and Democratic primary results for the position of Mayor of the City of Hammond and order the elections board to promptly rehold that primary as far in advance of the November 2011 general election as possible," the attorneys wrote.

Late this afternoon the Supreme Court filed a per curiam order granting an emergency petition to transfer under Rule 56(A):

From George Janiec v. Lake County Board of Election and Registration, a 3-page order:

This matter comes to us on a Verified Petition for Emergency Transfer under Appellate Rule 56(A). Appellant George T. Janiec, a Republican Party candidate for the office of Mayor of the City of Hammond and an incumbent member of the Hammond School Board, was removed from the May 3, 2011 primary election ballot by Appellee Lake County Board of Election and Registration (“the Board”). Janiec challenged the Board’s decision in the Lake Superior Court, requesting judicial review and injunctive relief. The trial court found in favor of the Board. Janiec appealed the trial court’s decision and sought immediate transfer of the appeal to this Court. Both parties have filed principal appellate briefs in support of their respective positions.

The Board and Lake Superior Court held that Janiec’s candidacy was inconsistent with the ethical policies applicable to members of the Hammond School Board. The Court finds no basis in statute or law for disqualifying Janiec on this basis. See Burke v. Bennett, 907 N.E.2d 529, 532 (Ind. 2009) (disqualification statute to be construed “consistent with the longstanding respect for the right of the people to free and equal elections”). Accordingly, the Court hereby GRANTS the Verified Petition for Emergency Transfer and REVERSES the Lake Superior Court’s “Judgment Order” issued on March 30, 2011. The Board and its members are ENJOINED from removing Janiec’s name from the ballot as a Republican candidate for Mayor of Hammond in the May 2011 primary election.

The Court then details steps to be followed to put Janiec back on the ballot.

See this March 30, 2011 ILB entry for background.

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Indiana Government

Ind. Gov't. - More on "Republicans in the Senate trying to change the rules of the game regarding lawsuit against Charlie White's eligibilty as a candidate"

Updating Monday's ILB entry, re the 2nd reading amendment to HB 1242 (which passed today with four Rs voting against it, and returned to the house of origin), both the Indianapolis and Fort Wayne papers today have editorials.

The Star: "'Charlie White rule' is no solution" It begins:

The thick cloud that surrounds Charlie White's election as Indiana secretary of state certainly presents a problem with regard to representing the electorate.

Creation of a "Charlie White rule" by the legislature is not the solution.

Faced with multiple felony charges related to vote fraud, White would be forced to leave office should he be convicted of any offense greater than a misdemeanor.

He also finds himself before the state Recount Commission, which is weighing a bid by the Democrats to invalidate his election on the grounds he was not legally registered to vote.

Clearly unable to act credibly as the state's chief election officer, White should heed bipartisan calls to resign. Whether he does so, or persists in his defiance, the possibility of a vacancy looms.

What to do about it? White's fellow Republicans in the Indiana Senate have an answer: Move the goal posts.

Sen. Michael Young's amendment, adopted with only one GOP nay vote, would empower the governor to appoint the secretary's replacement. Current law gives the post to the second-place finisher -- in this case, Democrat Vop Osili.

The FWJG: "A no-win election" Some quotes:
Vop Osili wasn’t the only loser in last year’s secretary of state election. Six months later, Indiana voters are left with an officeholder under indictment and political maneuvering that seeks to disenfranchise them.

The Indiana Senate voted this week to change state law so that Gov. Mitch Daniels could appoint a new secretary of state if Republican Charlie White is declared ineligible to hold office. Under current law, Osili – the second-highest vote-getter – would be declared the winner.

Neither option is welcome. Voters clearly chose White, even though he stood accused of voter fraud before the election. But this week’s move smacks of a power grab. The amendment didn’t surface until White was indicted and pressure failed to push the former Hamilton County Republican chairman to step down. * * *

The stakes are high. Control of this office determines a party’s placement on the ballot and appointment of election board officials.

Young’s amendment seemingly seeks to change the law after the fact. Moreover, it pertains to a matter currently under litigation. The Senate has traditionally rejected such measures, but the rules seem to have been thrown out in this unusual session.

As it stands, voters are ill-served by all of the possible scenarios regarding the secretary of state’s race. Everybody comes out a loser in this sorry case in Indiana election history.

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Indiana Government

Ind. Gov't. - Indiana Gasification files for construction and operating permits

SB 251, which now includes the CO2 pipeline for the Rockport coal gasification plant (see April 17th ILB entry), has today passed the House and returned to the house of origin.

Simultaneously today, Indiana Gasification has issued this 4-page press release, with contacts listed as Mark Lubbers and William Rosenberg, that begins:

Indiana Gasification has submitted applications to the Indiana Department of Environmental Management (IDEM) for Clean Water Act and Clean Air Act construction and operating permits. The Indiana Gasification facility, to be located near Rockport, Indiana, will convert 10,000 tons per day of Illinois Basin coal (and possibly some petroleum coke) to two primary products. Pipeline-quality substitute natural gas (SNG) will be sold to the Indiana Finance Authority under an agreement announced in December 2010, as well as other customers. Liquefied carbon dioxide (CO2) will be delivered through a pipeline to be developed from Indiana to the Gulf Coast region for use in enhanced oil recovery (EOR). It is estimated that the liquefied CO2 will help produce approximately 10,000,000 barrels per year of additional domestic oil.

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Indiana Government

Ind. Courts - More on: Hamilton Superior Court Judge William Hughes arrested on DUI charge

Updating this ILB entry from Nov. 2, 2010, Robert Annis reports today in the Indianapolis Star in a story that begins:

A Hamilton County judge avoided an out-of-state drunken-driving conviction this week, pleading guilty to a lesser charge.

Hamilton Superior Court 3 Judge William Hughes, who presided over the Carmel High School basketball hazing cases, pled guilty to misdemeanor reckless driving on Monday, receiving one year of unsupervised probation.

Hughes was originally charged with a misdemeanor count of driving while impaired and driving left of center, a traffic infraction, after North Carolina police pulled him over during an October vacation in the Outer Banks. His blood-alcohol content was 0.13, above the 0.08 limit at which a driver is considered to be intoxicated under Indiana law.

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Indiana Courts

Ind. Law - "Should those jailed for minor crimes have voting rights?"

For background, see this Feb. 24, 2011 ILB entry, which includes links to earlier ILB entries on states that prohibit felons from voting -- Indiana's prohibition applies to all incarcerated persons, whether imprisoned for a felony, or a misdemeanor.

The oral argument today is in David Snyder v. J. Bradley King, et al, where, pursuant to Indiana Appellate Rule 64, the United States District Court for the Southern District of Indiana certified the following question of Indiana law for the Indiana Supreme Court's consideration, which the Indiana Supreme Court accepted on February 11, 2011. The question, as framed by the district court, is:

Does the term "infamous crime" as used in Article II, Section 8, of the Indiana Constitution include conviction of and imprisonment for a misdemeanor battery, so as to permit removal of the convicted person's voter registration from the official list of registered voters pursuant to Indiana Code §§ 3-7-13-4 and 3-7-46-1 and -2?
This morning's Indianapolis Star carried a lengthy, complete with graphics, story by Carrie Ritchie on the upcoming argument, and on the issue. Some quotes:
Most states, including Indiana, take away voting rights of people convicted, sentenced and jailed for felonies.

Indiana is among only 10 states that extend that practice to misdemeanors.

Whether that goes too far -- whether people sent to jail for such crimes as public intoxication and shoplifting should be denied the right to vote -- is a matter before the Indiana Supreme Court.

The law raises many potential voter disenfranchisement issues. Among them: An Indianapolis Star analysis of voting records showed that the majority of those knocked off the voter rolls in Marion County are minorities and live in disproportionately lower-income neighborhoods.

And it has political repercussions.

The Star obtained the names and addresses of 1,113 Marion County voters who were disqualified from 2006 to 2010 because they were incarcerated after a criminal conviction. Of those, more than 92 percent lived in disproportionately Democratic precincts.

Issues such as race or political persuasion, however, are not the critical question before the court. The lawsuit centers on defining an "infamous crime," a term that dates to the state's 1816 constitution.

The constitution says people convicted of an "infamous crime" may lose the right to vote. A state law traced to the 1840s says people who are incarcerated after a criminal conviction lose the right to vote.

The state has interpreted the law to include anyone who does time for a misdemeanor or felony.

But according to the lawsuit, that interpretation is unconstitutional. The lawsuit contends that misdemeanors are not "infamous crimes," so only felons should lose the right to vote.

The state counters that "infamous crime" could mean any crime for which someone is incarcerated. * * *

Attorney Bill Groth, who represents the plaintiff, expects the court to reach a decision before the judges take a summer recess in late June.

A federal court sent the case to the Indiana Supreme Court earlier this year, partly because there is "no clear controlling Indiana precedent" on the issue.

When county voter registration offices are informed of someone being sentenced to jail or prison, they remove the person from voting rolls.

People can re-register to vote once they serve their time.

There is much more to the story.

And you may watch the video of today's oral argument here.

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Indiana Law

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

For publication opinions today (2):

In Rebecca D. Kays v. State of Indiana , a 12-page opinion, Judge Mays writes:

Rebecca Kays appeals an order that she pay restitution as part of her probation for Class B misdemeanor battery. She argues the trial court violated Ind. Code § 35-38-2-2.3(a)(5) by ordering her to pay restitution without inquiring into her ability to pay and by failing to establish the manner and time of payment. The trial court did not inquire adequately into Kay' ability to pay. Neither was there any evidence Kays had income other than social security disability benefits, which may not be assigned by “legal process” pursuant to 42 U.S.C.A. § 407(a). Nor did the trial court adequately indicate the manner and timeframe for payment as required by Ind. Code § 35-38-2-2.3(a)(5).

We further note that, pursuant to the reasoning of Stanley v. Walker, 906 N.E.2d 852, 858 (Ind. 2009), reh’g denied, a trial court ought not simply base an order of restitution on a hospital bill without determining whether that bill reflects the “actual cost” to the victim. As the record provided to us does not reflect whether the parties submitted evidence enabling the court to make such a determination, we direct the trial court on remand to, if such evidence exists, revisit the documentation submitted as to the victim's damages and determine whether the amount of restitution ordered reflects the amount actually paid by the victim.

We reverse and remand.

In Michael L. Alexander v. State of Indiana , a 5-page opinion, Judge May writes:
Michael Alexander appeals his conviction of Class C felony operating a motor vehicle after a lifetime suspension of driving privileges. He asserts the police violated his constitutional rights by conducting the initial traffic stop that led to his arrest. We affirm.

After receiving a complaint about Alexander from the management of an apartment complex that had banned him, Mishawaka police checked Alexander's driving record. They found Alexander had a lifetime driving suspension and obtained his picture. Police saw Alexander driving, pulled him over, and arrested him. Alexander was convicted of Class C felony operating a motor vehicle after lifetime suspension of driving privileges.

Alexander contends the police violated his Fourth Amendment rights by obtaining his driving record and picture from Bureau of Motor Vehicles (BMV) records without probable cause. * * *

There is no reasonable expectation of privacy in BMV records. Motor vehicle records may be inspected “if the person requesting the information provides proof of identity and represents that the use of the personal information will be strictly limited to . . . use by a government agency, including a court or law enforcement agency, in carrying out its functions.” Ind. Code § 9-14-3.5-10. * * *

As police inspection of BMV records does not implicate the Fourth Amendment, the police stop of Alexander based on the information in his driver's record was permissible. We therefore affirm the judgment of the trial court.

NFP civil opinions today (3):

Charles R. Bilyeu v. Frani Bilyeu (NFP)

Scott F. Carbary v. Shawn Miller d/b/a SignificantCars.com (NFP)

A.C., et al., Alleged to be C.H.I.N.S.; D.B. v. I.D.C.S. (NFP)

NFP criminal opinions today (4):

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

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

Travis S. Chandler v. State of Indiana (NFP)

Eric A. Simmons v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Another Supreme Court opinion today

In Bradley J. Love v. Robert Rehfus, et al., a 26-page, 5-0 opinion, Justice Sullivan writes:

A township fire chief terminated a firefighter for sending a private email supporting a political candidate running for township trustee to a small group of citizens because the chief believed the email contained false statements of fact. We find that the email was constitutionally protected speech under the test set forth in Pickering v. Board of Education, 391 U.S. 563 (1968), and its progeny. We also conclude that there are genuine issues of material fact that must be resolved in order to determine whether, as a matter of state law, the township is liable under 42 U.S.C. § 1983 for the fire chief's actions. * * *

Love filed suit under 42 U.S.C. § 1983 in Hancock Circuit Court against Chief Rehfus, in both his individual capacity and his official capacity, and against Sugar Creek Township for violating his federal constitutional rights under both the First and Fourteenth Amendments. The defendants filed a motion for summary judgment arguing both (1) that Love's constitutional rights were not violated because false statements are not protected by the First Amendment, and (2) that the Township could not be held liable under § 1983 on a theory of respondeat superior. The trial court entered summary judgment for the defendants on both grounds.

The Court of Appeals reversed. Love v. Rehfus, 918 N.E.2d 448 (Ind. Ct. App. 2009). First, it held that Love's statements were protected by the First Amendment because, even if false, they did not cause any actual harm to the Department. Id. at 453-57. Second, it held that the Township was subject to liability under § 1983 because Chief Rehfus established final government policy respecting employment decisions within the fire department. Id. at 457-58.

The defendants sought, and we granted, transfer, Love v. Rehfus, 929 N.E.2d 789 (Ind. 2010) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A). * * *

I. We first address the defendants' argument that the First Amendment does not protect Love's speech. This Court has not addressed the First Amendment rights of government employees since Indiana Department of Highways v. Dixon, 541 N.E.2d 877 (Ind. 1989). In the intervening 22 years, the United States Supreme Court has rendered several decisions related to government-employee speech. The defendants' arguments implicate at least two separate areas of First Amendment doctrine explicated in Dixon and the Supreme Court's cases. * * *

Love's email supported a political candidate for public office and was sent a few weeks before an election. Moreover, it was sent in response to an email that was critical of Loves preferred candidate – that is, it was sent in the midst of a debate on public issues. Defendants have not shown any harm or disruption to the operation of the Department caused by the email. And requiring Love to verify the truthfulness of each statement and then pen with precision a statement that accurately and exactly reflected those verified facts on the threat of losing his employment may have resulted in self-censorship that would have been detrimental to the ongoing public debate surrounding the election. Although the history and jurisprudence of the First Amendment are anything but simple, it is clear that Love's activities in this case were protected by the Free Speech Clause. Therefore, although we agree there are no genuine issues of material fact, the trial court misapplied the law and thus erred in granting the defendants' motion for summary judgment on the First Amendment claim.

II. The defendants also moved for summary judgment on the basis that suit against the Township itself could not be maintained because a municipality cannot be held liable under § 1983 on a theory of respondeat superior. * * *

The proper inquiry in this case is whether Chief Rehfus had final policymaking authority with regard to the employment of probationary, part-time, volunteer firefighters, not whether he was the final policymaking authority with regard to all employment matters for the Township, or even all employment matters within the Department. To resolve this inquiry, on remand, the record must be further developed with the principles of the post-Pembaur decisions in mind. Thus, the trial court must determine who the final policymaker was and, if it was not Chief Rehfus, determine whether that official delegated to Chief Rehfus the relevant final policymaking authority.

Conclusion. We reverse in whole the order of the trial court granting summary judgment for the defendants and remand for proceedings consistent with this opinion.

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Still more on: Big day today in the General Assembly

Updating this ILB entry from earlier this morning, here are some quotes from Niki Kelly's story today in the Fort Wayne Journal Gazette, headed "Anti-boycott proposal raises tensions."

A fracas over a provision aimed at preventing future boycotts by lawmakers shut down work in the Senate on Wednesday night as Democrats in that chamber objected to adding it to budget legislation.

The amendment was the result of House Democrats fleeing the state for 34 days earlier in the session to kill controversial union legislation and mute education reforms.

But the Senate Democrats, offended and emotional, said the punitive nature of the amendment would stop any minority party from breaking a quorum in the future to block legislative business.

They walked out in protest during the vote, saying the nation was founded partly with the objective of protecting minority rights.

“When you push someone so far that there is no hope of anything good happening, it’s just going to cause trouble,” said Sen. Frank Mrvan, D-Hammond.

“We don’t deserve this. I feel insulted. We didn’t walk out. Why do we have to pay the price?”

The Senate Democrats went to caucus after the 36-0 vote on the amendment. Because they only have 13 members, they can’t break a quorum in the Senate. Republicans also went to caucus shortly afterward to discuss the situation. * * *

Senate Democratic Leader Vi Simpson, D-Bloomington, said later that her caucus was especially upset that Republicans cut off debate on the amendment – a move rarely, if ever, used in the Senate.

“This Senate majority is out of control,” she said. “I don’t know who is leading the Senate, but I don’t think the president pro tem is totally in charge these days.”

Long reacted angrily, saying Simpson gave his caucus no choice since her members were trying to filibuster the debate.

“She doesn’t like the fact that we have a conservative caucus,” he said. “She is suggesting that our positions are because a group of young turks have taken over the Senate. That is not true.”

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Indiana Government

Ind. Decisions - Supreme Court holds that the NCAA's ticket-distribution plan does not constitute a lottery under IC 35-45-5-3

Recall this Nov. 4, 2010 ILB entry, which reported that late in October, 2010, our Supreme Court had accepted a certified question from the 7th Circuit.

Today, in Tom George, et al. v. National Collegiate Athletic Association, a 15-page, 5-0 opinion, the Court gives its answer. Writing for the Court, the opinion by Justice Sullivan concludes:

We hold that the NCAA's ticket-distribution plan does not constitute a lottery under Indiana Code section 35-45-5-3 because there was no “prize” awarded to those whose offers to purchase tickets were randomly accepted by the NCAA.

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Ind. Sup.Ct. Decisions

About this blog - More on: 8th birthday of ILB; how to become a supporter

Updating Monday's entry, I'm pleased to announce the ILB has gained another law firm supporter this month. Here is the newly updated list (in addition to the front-page supporters)

Your firm could join this list of valued ILB supporters! Here is a copy of the ILB Supporter Agreement that you can fill out and mail.

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to About the Indiana Law Blog

Ind. Gov't. - More on: Big day today in the General Assembly

Updating yesterday's ILB entry, where I noted that bills that had appeared dead might pop up somewhere else, including in the budget bill ...

Yesterday the Senate did that one better and inserted an entirely new provision:

a proposed "anti-bolting" law that would bar minority party lawmakers from leaving in order to keep the majority party from doing business. [to quote today's IndyStar]
into the budget bill. More from the story by Mary Beth Schneider:
Indiana's Constitution requires a quorum of two-thirds of each chamber to be present to do business. Both parties have walked out to deny a quorum to try to stop or alter legislation they found objectionable. Democrats, though, took it to new lengths this session by staying in Illinois for five weeks.

Senate President Pro Tempore David Long, R-Fort Wayne, told the Senate that should never happen again.

From 1867 until 1976, he said, Indiana had an anti-bolting law on the books that made it a misdemeanor for a legislator to be absent in order to stop the House or Senate from doing its job.

Long said the provision was not meant to insult any member of the minority party in the Senate.

But he called the walkout "a threat to the future of this institution if something like that is allowed to occur again."

Democrats in the Senate -- where they are outnumbered 37-13, a minority so small that they don't have the power to deny Republicans a quorum -- expressed outrage.

Here is the language of the new addition to HB 1001:
SECTION 37. IC 2-2.1-4 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]:

     Chapter 4. Quorum Breaking

    Sec. 1. This chapter does not apply to a day that a member is:

        (1) excused by the member's presiding officer; or

        (2) has a verified illness or injury diagnosed by a licensed physician that prevents the member from attending session.

    Sec. 2. As used in this chapter, "body" refers to either of the
following:

        (1) The house of representatives.

        (2) The senate.

    Sec. 3. As used in this chapter, "chamber" refers to either of the following:

        (1) The floor of the house of representatives.

        (2) The floor of the senate.

    Sec. 4. As used in this chapter, "election district" has the meaning set forth in IC 3-5-2-19.

    Sec. 5. As used in this chapter, "final week of session" is defined as the period of April 22-29 in odd-numbered years, and March 7-14 in even-numbered years.

    Sec. 6. As used in this chapter, "member" refers to either of
the following:

        (1) A member of the house of representatives.

        (2) A member of the senate.

    Sec. 7. As used in this chapter, "presiding officer" refers to the
following:

        (1) For the house of representatives, the speaker of the house of representatives.

        (2) For the senate, the president pro tempore of the senate.

    Sec. 8. (a) Except during the final week of session or during special session, this section does not apply to an absence of fewer than three (3) consecutive session days, regardless of the reason for the absence.

    (b) A member who, with the intent to defeat, delay, or obstruct legislative action, is absent from the member's chamber with the result that the member's body is unable to form a quorum, commits the act of legislative bolting and is liable for a civil penalty.

    Sec. 9. (a) A citizen who resides in the election district of a member described in section 8 of this chapter has a cause of action against the member in a court of a county that has territory in the member's election district.

    (b) A citizen, without the intent to subvert this section, who brings an action must show by a preponderance of the evidence that the member has violated section 8 of this chapter and is entitled to the following:

        (1) An order imposing a civil penalty of one thousand dollars ($1,000) for each day the member has violated section 8 of this chapter.

        (2) Attorney's fees and court costs.

    (c) A civil penalty imposed under this section shall be paid to the state general fund.

    Sec. 10. A penalty imposed under this chapter on a member who violates section 8 of this chapter is in addition to any penalties imposed by the member's body under the Constitution of the State of Indiana and the rules adopted by the member's chamber.
What did the 1867 Act provide? Here is the text of Chapter 60, Acts of 1867:
AN ACT to prevent the breaking of a quorum by the General Assembly, and prescribing penalties therefore.

Section 1. Be it enacted by the General Assembly of the State of Indiana: That whenever it shall happen that a quorum shall not be present or voting in the Senate or House of Representatives of the State of Indiana, by reason of the wilful, or intentional absence of any member of the same, or their refusing to vote, or to answer to their names on any vote or roll call, any member of the General Assembly so refusing to vote, to be present, or to answer to his name, with the intent to defeat, delay, or obstruct legislation, or legislative action, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined one thousand dollars.

See p. 192 of The Centennial History of the Indiana General Assembly.

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Indiana Government

Courts - Continuing on with: "Kentucky Supreme Court to hear online gambling case"

Remember this ILB entry from March 19, 2010? The Governor of Kentucky had seized 141 Internet domain names of online gambling sites. There was outrage.

On April 15, 2011, however, the U.S. DOJ seized the domain names of "Poker Stars, Absolute Poker, and Full Tilt Poker and charged the site principals with bank fraud, illegal gambling offenses and laundering billions in illegal gambling proceeds," according to this entry from DomainNameNews.com.

Today a WSJ story reports that: "Prosecutors seized five Internet domain names used by the companies last week: pokerstars.com, fulltiltpoker.com, absolutepoker.com, ultimatebet.com and ub.com."

Nate Silver of the NY Times column FiveThirtyEight, reports today that "After ‘Black Friday,’ American Poker Faces Cloudy Future." The lengthy and comprehensive report gives the history of online poker, and includes links to the indictment and complaint.

Finally, another domain name blog, TheDomains.com, posted April 16th under the heading "Why Is Anyone Surprised Over Yesterday’s Gambling Domain Seizures & Why No Publicly Traded Company Got Charged":

We know that the government is getting quite comfortable in seizing domain names, a law enforcement practice that simply didn’t exist just a couple of years ago.

I think this practice can be traced directly back to the Governor of Kentucky who seemed to be the 1st to come up with the idea that domain names could and should be seized. (that case is STILL pending).

Since then, we have had the Feds seize domains for alleged violations of copyright laws and sales of counterfeit goods.

It seems that the US government is on an unstoppable march to seize domain names upon the allegation of an ever expanding list of offenses.

Not upon conviction but upon the filing of charges.

Posted by Marcia Oddi on Thursday, April 21, 2011
Posted to Courts in general

Wednesday, April 20, 2011

Ind. Gov't. - "Is Roe v. Wade Deadletter Law?"

The WSJ Law Blog has now picked up on the Dahlia Lithwick article quoted earlier today in this ILB entry. Check it out.

Posted by Marcia Oddi on Wednesday, April 20, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)

For publication opinions today (2):

In Ricky E. Graham v. State of Indiana , a 7-page opinion on rehearing involving an appellant pro se, Judge Barnes writes:

The State petitions for rehearing following our decision in Graham v. State, No. 22A01-1008-PC-392 (Ind. Ct. App. Feb. 7, 2011). The State does not challenge the ultimate outcome in our original opinion, i.e. remanding for further proceedings to readdress Graham’s claim of an illusory or involuntary plea and possibly his claims of ineffective assistance of trial counsel. It takes issue instead with comments we made regarding the creation and preservation of evidentiary records in post-conviction relief (“PCR”) proceedings. We grant rehearing to address the State’s concerns. * * *

We reiterate and slightly reword what we said in our original opinion. First, if a pro se PCR petitioner comes to court bearing a record, including a transcript or other documents, that he or she wants to use in support of his or her petition, the PCR court should ensure that the record is introduced into evidence rather than indicating that the record could be obtained by other means, which is what occurred here.1 Second, if a PCR court does in fact, on its own initiative or at the request of a party, take judicial notice of other court records in ruling upon a PCR petition, those records should be made part of the PCR record. The PCR court here did in fact rely on such records, but they were not made part of the PCR record and were not transmitted to this court on appeal, thereby potentially impeding appellate review of the case. Nothing in either of these statements requires a PCR court to go searching for records in support of either party’s position or to become an advocate or investigator for either party.2 We also emphasize that if a PCR court purports to take judicial notice of other court records and relies upon those records in ruling upon a PCR petition, but those records are not made part of the PCR record, it places a substantial burden upon this court on appeal to either track down those records and have them transmitted to this court, or to attempt to decide the case without benefit of those records. * * *

We grant rehearing, but reaffirm our original decision in all respects.

In Roland Ball v. State of Indiana, a 12-page opinion, Chief Judge Robb writes:
Following a jury trial, Roland Ball was convicted of sexual battery, a Class D felony. Ball appeals his conviction, raising three issues for our review, of which we find the following dispositive: whether the evidence is sufficient to support his conviction. Concluding there is insufficient evidence of sexual battery but sufficient evidence of the lesser-included offense of battery, we reverse and remand. * * *

Sleep is not equivalent to a mental disability or deficiency for purposes of the sexual battery statute, and therefore, the State‟s evidence that Ball‟s victim was sleeping when he began kissing her is insufficient to support his conviction for sexual battery. However, the evidence proves Ball committed battery upon his victim. We therefore reverse Ball‟s sexual battery conviction and remand to the trial court to enter judgment for battery as a Class B misdemeanor.

NFP civil opinions today (4):

The Adoption of R.T.; J.T. v. G.N. (NFP)

L.R. v. Review Board (NFP)

Stroh Landmark, LP, et al. v. Willis Hecht (NFP)

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

NFP criminal opinions today (10):

Edward P. Barsh v. State of Indiana (NFP)

Latrice L. King v. State of Indiana (NFP)

James Lee-Vaughn White, II v. State of Indiana (NFP)

Loren Sallee v. State of Indiana (NFP)

Luis Briones v. State of Indiana (NFP)

Jason Morales v. State of Indiana (NFP)

Andrew S. Dugger v. State of Indiana (NFP)

Napoleon Camarillo v. State of Indiana (NFP)

Carl Brown v. State of Indiana (NFP)

Woody E. Sinclair v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 20, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Insurance denial of coverage interlocutory appeal granted transfer now settled

As listed on the ILB's April 18th Upcoming Oral Arguments entry, April 27th was the date scheduled for oral argument before the Supreme Court in Allstate Insurance Co. v. Timothy Clancy, et al.

But according to an order filed at 4:30 pm on April 18th and now posted online:

By order dated March 10, 2011, the Court granted transfer of jurisdiction over this interlocutory appeal and vacated the Court of Appeals opinion. The parties have now filed a motion to dismiss this appeal because they have reached a mediated settlement.

Being duly advised, the “Joint Motion To Dismiss Further Proceedings” is GRANTED. The oral argument setting for April 27, 2011 is VACATED and this appeal is DISMISSED. Per Indiana Appellate Rule 58(A), the Court of Appeals’ opinion, reported as Allstate Ins. Co. v. Clancy, 936 N.E.2d 272 (Ind. Ct. App. 2010), remains vacated and is not precedent.

Posted by Marcia Oddi on Wednesday, April 20, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Limits on abortion clear Senate: Bill cuts Planned Parenthood funds"

That is the headline of Niki Kelly's report today in the Fort Wayne Journal Gazette on yesterday's Senate action on HB 1210. Some quotes:

The Indiana Senate voted 35-13 Tuesday to strip public funding from the largest abortion provider in Indiana and move the state toward being one of the most restrictive in the country.

“This bill does not change Roe v. Wade, but it does in my opinion help women,” said Sen. Patricia Miller, R-Indianapolis. “It gives women objective scientific information. It helps them to understand their options.”

House Bill 1210 now returns to the House, where the heavily Republican chamber is expected to approve changes made to the bill. * * *

The legislation also would make it illegal to get an abortion after the 20th week of pregnancy.

Current law makes it illegal at the point of viability, which doctors usually set about 24 weeks. Other provisions of the bill are:

• A physician must inform a pregnant woman considering an abortion that the fetus might feel pain, as well as other dangers of having an abortion or carrying a baby to term.

• A pregnant woman must view fetal ultrasound imaging, unless she declines in writing.

• Doctors providing abortions must have physician admitting privileges at a nearby hospital.

Most of the discussion on the bill, though, centered on funding.

“I just fear that we’re going to put our constituents in a situation where they possibly don’t have access to family planning and they will have to make these terrible decisions,” Sen. Tim Lanane, D-Anderson, said.

Here is yesterday's ILB entry on HB 1210. As Kelly's story points out: "[T]he vote was not strictly along party lines; four Republicans voted “no,” and three Democrats voted “yes.”" Here is the Roll Call.

The Indianapolis Star story by Heather Giller is here. Some quotes:

"It makes absolutely no sense to reduce access to birth control when the objective is to reduce the incidence of abortion," said Betty Cockrum, president of Planned Parenthood of Indiana.

Ending taxpayer funding would seriously jeopardize eight health centers that serve low-income Hoosiers across the state, Cockrum said. It also would keep Medicaid clients from visiting any of Planned Parenthood's 28 Indiana locations.

"We're sort of cutting off our nose to spite our face," said Sen. Tim Lanane, D-Anderson. "The most effective way to prevent unwanted pregnancies and to prevent a woman from having to make that horrible decision about whether to keep a child or not is access to family planning." * * *

Sue Swayze, legislative director of Indiana Right to Life * * * "You can buy some types of contraceptive devices at Walmart," she said.

ILB: It makes no sense, unless, as it appears, the war against abortion is in reality a war against contraception.

See also this article posted on Slate yesterday by Dahlia Litwich, titled "The Death of Roe v. Wade: Supporters and opponents of abortion seem to agree: It's no longer the law of the land." Some quotes to show what she is getting at:

Increasingly, however, there is a fundamental assumption both sides seem to share, even if they don't say so, and it may well shape the future of abortion rights in America: Opponents and supporters of abortion appear to have taken the position that Roe v. Wade is no longer the law of the land. * * *

Gone are the days in which legislatures at least attempted to ensure state regulations conformed to the broadest interpretation of the Roe constraints. The new game lies in expressly violating Roe and Casey, at the state level, in the hopes of either forcing the issue at the Supreme Court or making abortion unobtainable as a matter of fact. Either way, abortion opponents believe they will win—and here pro-abortion rights groups may actually agree. * * *

[T]he fear that Justice Samuel Alito would vote to overturn Roe is so deep that reproductive rights groups may be opting to leave the state bans in place. And, as she conceded in that interview, wherever unconstitutional state abortion bans go unchallenged, they become law. * * *

The end result is that Roe remains on the books, while for all practical purposes women can't get an abortion in Ohio, North Dakota, or Florida. * * *

There's one other (often forgotten) player in this elaborate game of chicken over reproductive rights, and that's the Supreme Court. Given that public opinion has changed virtually not at all since Roe v. Wade, my guess is still that the Roberts court is as uninterested in overturning the law as its challengers are in forcing the issue. It does not want to be the court that makes abortion illegal, or all-but-illegal, in America. The backlash would be staggering. The conservatives on the court are much happier with the status quo, allowing abortion as a matter of federal law while the states effectively outlaw it as a matter of fact. If the states continue to hollow out Roe from the core, there will be no reason for the court to hear an abortion case ever again. * * *

[If] fear of Samuel Alito is preventing anyone from challenging the host of increasingly invasive, paternalistic, and degrading state abortion regulations, it's not just abortion foes who are getting what they want. The court is, too. Abortion will have become all but impossible in America—for poor, minority, and rural women in particular—in direct contradiction to a Supreme Court decision, and the court itself will have done nothing to stand in the way. Is that what supporters of the right to abortion, not to mention the rule of law, really want?

Eric Bradner's story today in the Evansville Courier & Press concludes:
Senate Minority Leader Vi Simpson, D-Ellettsville, said she remembers the time before the 1973 Supreme Court decision Roe v. Wade, which legalized abortion.

Making the procedure illegal "didn't cut down on the number of them. Just moved them into somebody's garage," she said. "I guess that's what we want to go back to in Indiana."

Posted by Marcia Oddi on Wednesday, April 20, 2011
Posted to Indiana Government

Ind. Gov't. - Big day today in the General Assembly

If tomorrow is the last day for Third Readings, then today is the last day for 2nd Readings in the second house.

In theory, at least, that means if a bill doesn't pass second reading today, it is dead. As we have seen already with other bills this session however (e.g. the CO2 pipeline bill, and defunding Planned Parenthood), that does not mean its subject matter will not pop up somewhere in a second reading amendment (although this is the final day for that), or in a conference committee report (including hidden in the budget bill).

Today's Senate calendar 2nd reading section is short, eleven bills, including the budget bill (HB 1001), renewable energy sources (HB 1128), and IDs for alcohol purchases (HB 1325).

Today's House calendar is very short, 10 senate bills on second reading, six on third. Included on 2nd is illegal immigration (SB 590); on third: "Clean energy" (SB 251 - including CWIP for nuclear power plants and the CO2 pipeline), and the constitutional right to hunt and fish (SJR 9).

Posted by Marcia Oddi on Wednesday, April 20, 2011
Posted to Indiana Government

Environment - Still more on: "U.S. moving forward with lake evictions: 2 homes still occupied despite repeated extensions, threats"

Updating this ILB entry from April 15, 2011, Teresa Auch Schultz now reports in the Gary Post-Tribune:

U.S. Marshals have been given permission to remove a Beverly Shores woman from her federally owned home after she refused to obey an eviction notice.

U.S. District Judge Joseph Van Bokkelen gave the order Sunday for the marshals to move in after Deborah Pavel continued to refuse to leave the house, at 260 S. Prospect, according to court records. * * *

The federal government sued a year ago, and Van Bokkelen gave an eviction order in January. The government filed a motion last week, however, saying that Pavel was ignoring the eviction notice and remained on the property.

Posted by Marcia Oddi on Wednesday, April 20, 2011
Posted to Environment

Tuesday, April 19, 2011

Ind. Gov't. - Attorney: Steuben County Must Provide Golf Cart For Disabled Camper

This today from WLKI 100.3 in NE Indiana:

(ANGOLA) - County Commissioners were told by Attorney Don Stuckey on Monday morning they had to accomodate a man who wanted to use a golf cart at the Steuben County Park due to his disability.

Stuckey cited the Americans With Disabilities Act in making his judgement. He said the county would have to accomodate the man unless they can prove there was a public safety issue. Stuckey felt that would be tough to do given the park's terrain. He also pointed out the county has a greater burden since it was a government entity.

Through its redvelopment project at the park, the county is in the process of making it A.D.A. compliant.

Donald J. Stuckey is the Steuben County Attomey.

Posted by Marcia Oddi on Tuesday, April 19, 2011
Posted to Indiana Government

Ind. Gov't. - Reexamination of charitable property tax exemptions involving Imagine Schools Inc. may disclose that Indiana education dollars are flowing out of state

"The tangle of leases and subleases, for-profit management organizations, charter school boards and real estate investors involved in some of the state’s existing charter schools begs for transparency before more tax dollars start flowing out of state."

Karen Francisco of the Fort Wayne Journal Gazette had a lengthy and complex article in the Sunday edition. Read it here. Some quotes that are just a portion of the very long story:

The news about charter schools, their owners, and the money they make goes back to December to the state Supreme Court. In reversing a decision by the Indiana Tax Court, the justices ruled that a property owner doesn’t automatically qualify for a tax exemption even if property is used for a charitable or exempt purpose.

From that one decision, some charter school books are being opened in Fort Wayne. Taxpayers can learn where some of their tax dollars are going, and a lot of them leave the state and end up at a company boasting of attractive profits from a “reliable cash flow.” * * *

Policymakers pushing charter school expansion ask taxpayers to overlook the business side of the equation, using children and school choice as a distraction from deals that benefit investors at the expense of classroom spending. Allen County tax officials have done Indiana taxpayers a favor in prying open the Imagine real estate playbook. Legislators would be wise to slow their rush to pass a charter bill until ensuring there are safeguards to keep Indiana tax dollars in Indiana schools. * * *

The real estate investment trust recently summoned before the county’s tax assessment board of appeals has been asked to provide the lease agreement between the company and Schoolhouse Finance. Schoolhouse Finance subleases the Imagine MASTer Academy property to the local school board. This year, the board budgeted $790,000 for rent.

The property owner was represented at the hearing by a local attorney and an official with Imagine Schools Inc. They emphasized the 26-acre campus’ use for educational purposes.

PTABOA president Judy Macon, a local Realtor, said she couldn’t comment on the case pending the board’s decision. But at the hearing March 3, board members clearly had in mind the Oaken Bucket case, which is how the Supreme Court ruling is known. * * *

Why the court ruling matters. The Indiana Supreme Court decision that prompted the review might well result in the exemption’s being denied. A denial would set up the first test of the ruling. It holds that a property owner – not just the tenant – must demonstrate the property is owned for a tax-exempt purpose. * * *

A caution for legislators. But even if the Indiana tax officials decide the for-profit company demonstrates a charitable purpose, the appeals board review offers a good opportunity to scrutinize the real estate agreements involving Indiana’s charter schools.

Republican lawmakers are about to make it much easier to open a charter school. * * *

What’s next? In Indiana, the four Imagine charter schools have budgeted $4.3 million for rent and operating costs. At the Imagine Life Sciences Academy West in Indianapolis, those expenses amount to more than 22 percent of the school’s total budget. The common guideline recommended for charter school organizers is 15 percent for facility costs.

If no exemption is granted, the lease makes Imagine MASTer Academy – by way of Indiana taxpayers – responsible for the property tax bill. Divided into two parcels, it totals $124,278 for taxes due this year. Because it hits the state’s new constitutionally protected tax cap limit, it qualifies for a circuit-breaker credit of $6,586 – small consolation to taxpayers footing the bill for out-of-state property investors.

For Indiana taxpayers, the real issue is the total cost, although they are justified in asking why. After all, the money doesn’t come from local property taxes but from taxpayers statewide. For Fort Wayne residents, Imagine Schools has preserved and maintained an attractive campus on North Wells Street, and provides for a well-kept neighborhood school on Broadway instead of a vacant church building. The schools in Indianapolis serve similar roles.

But dollars paid to out-of-state investors for rent are dollars not spent on students in the classroom or in salaries to local teachers who will, in turn, pay taxes and support local businesses.

Gov. Mitch Daniels has criticized traditional public schools for spending too much on buildings, while bills he supports targeting teacher seniority are clearly aimed at driving down education salaries. But in his zeal to open more charter schools, he appears to give them a pass on education management agreements and real estate deals that collectively shift millions in tax dollars from classrooms to out-of-state interests.

Here is a list of ILB entries re "Oaken Bucket," the most recent being the Supreme Court decision of Dec. 15, 2010 in Hamilton County Property Tax Assessment Board of Appeals & Hamilton County Assessor v. Oaken Bucket Partners, LLC, where the Supreme Court reversed the July 24, 2009 Tax Court opinion and ruled:
In this opinion we determine that charging below market rent for part of a building rented to a church is insufficient, standing alone, to justify a religious and charitable purpose property tax exemption. Instead, an owner of leased property must provide evidence that it possesses an exempt purpose separate and distinct from the exempt purpose of its lessee. * * *

In sum, although leasing space to Heartland for charitable and religious purposes, Oaken Bucket has failed to demonstrate it owned the property for such purposes because Oaken Bucket did not possess an exempt purpose independent of Heartland’s charitable and religious purpose. As such, Oaken Bucket has not met its burden of proving it is entitled to an exemption.

Posted by Marcia Oddi on Tuesday, April 19, 2011
Posted to Indiana Government

Ind. Courts - "Secretary of State's wife seeks public defender"

Robert Annis of the Indianapolis Star posted this story at 2:35 PM. Some quotes:

The wife of Indiana Secretary of State Charlie White has requested the services of a court-appointed attorney, indicating she might face the same accusations of voting irregularities that led to her husband's indictment. * * *

On her application for a court-appointed attorney, Michelle White wrote, "I am a target ... voted in the wrong district."

Identifying her occupation as a contract aesthetician, White said she makes $200 a week. Her husband makes $80,000 a year as Secretary of State, according to the document.

What is an "aesthetician." According to this site:
Aestheticians,or estheticians, provide skin care services in salon, spa, retail or medical settings. They're responsible for enhancing the quality and tone of clients' or patients' skin through services like makeovers, facials, color analysis, microdermabrasion, chemical peels, hair removal and more. Aestheticians may earn cosmetology or aesthetics certificates leading to state licensure.

Posted by Marcia Oddi on Tuesday, April 19, 2011
Posted to Indiana Courts

Law - "After Latest $450K Poker Win, Yale Law Student Says She May Practice Only Part-Time"

Love this post by Martha Nell at the ABA Journal Blog about 2nd year Yale Law Student Vanessa Selbst. A quote:

Last week, for the second year in a row, she won the North American Poker Tour event at the Mohegan Sun, earning $450,000 and upping her poker income for 2011, so far, to a little over $500,000. Last year, a $1.6 million purse for prevailing in the main event at the Partouche Poker Tour in France helped up her career earnings, to date, to about $4.5 million, according to Poker News Daily.
Looks like she will be able to pay off her student loans.

Posted by Marcia Oddi on Tuesday, April 19, 2011
Posted to General Law Related

Ind. Courts - More on: "Thousands in county owe back court fees"

Updating this ILB entry from earlier this morning, Lafayette attorney Doug Masson (Masson's Blog) has sent the ILB this note:

Thanks for that link on child support docket fees in Shelby County.

I have handled a number of those cases in the past. When I was handling them, I believe the fee was $20 per year plus a $10 late fee.

It was very confusing to debtors. They would frequently protest that they were current on their child support payments; and you would have to explain that the docket fee was distinct from the child support itself.

When the child support order went into place, people generally had bigger things on their mind and frequently forgot about the fee, if anyone ever told them about it in the first place.

To top it off, these fees were, by their nature, difficult to collect because in a great majority of the cases the person who owed the docketing fee already had a child support garnishment in place against their wages.

Posted by Marcia Oddi on Tuesday, April 19, 2011
Posted to Indiana Courts

Ind. Decisions - Even more on suit between one Indiana state agency and another

This ILB entry from Nov. 28, 2010 began:

Remember this ILB entry from May 27, 2010. The parties were Indiana Protection and Advocacy Services and the Indiana FSSA. At issue was the Eleventh Amendment.
The entry continued that there was a strikingly similar case before the SCOTUS, Virginia Office for Protection and Advocacy v. Stewart, where the Court will hear argument regarding whether the Eleventh Amendment prohibits an independent state agency from suing state officials in federal court for an injunction to remedy a violation of federal law.

The SCOTUS issued its opinion this morning in the Virginia case, allowing "a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same state." See the SCOTUSblog entry, with links to today's opinion, here.

This May 27, 2010 ILB entry discusses the 7th Circuit rulings, allowing the action requested.

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

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Involuntary Commitment of T.S. (NFP)

NFP criminal opinions today (4):

Michael K. Wethington v. State of Indiana (NFP)

Paul Justice v. State of Indiana (NFP)

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

Cheynne Javon Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 19, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "IBM: Daniels' email shows he had key role in welfare outsourcing deal, should face deposition"

That is the headline to this comprehensive AP story by Ken Kusmer, that also appeared in the WSJournal.

Posted by Marcia Oddi on Tuesday, April 19, 2011
Posted to Indiana Government

Ind. Courts - "Thousands in county owe back court fees"

Allison Tyra reports today in the Shelby News:

For the past few weeks, the Shelby County Clerk's office has been bombarded with angry calls and visits from county residents who have received collection notices for docket fees -- a bill which most were unaware existed.

"Docket fees are the maintenance fees ordered by courts, mandated by the state," county clerk Vicki Franklin said. They pay for filing, stamps, envelopes and other incidental costs to the court and the clerk's office.

The county recently contracted with a collection agency to recoup outstanding money on child support cases.

In 2008, the state began an audit of child support docket fees and found around 5,000 people with outstanding docket fees in Shelby County. * * *

Many people affected are mad or confused because they didn't realize they owed this money. Some haven't paid child support in years -- the audit went back more than 20 years. * * *

The fee the collection agency charges is proportional to the amount of docket fees, at 30 percent of what the person owes. Because the case was not closed out, the person continues to accumulate docket fees each year, even if they have stopped paying child support, so a person who hasn't paid support in years will still have racked up hundreds of dollars.

The current annual docket fee is $55. There is also a $10 "late fee" for each year missed, Klene said. If a person is paying child support to more than one person -- such as a man who has children by two or more women -- those are considered two separate cases, and he or she would be charged the docket fee, plus the late fee, for each case.

Here is a Jan. 28, 2009 ILB entry about Clark County, which also contracted with Eagle Accounts Group LLC to collect past-due child support docket fees.

Posted by Marcia Oddi on Tuesday, April 19, 2011
Posted to Indiana Courts

Ind. Gov't. - "Indiana Senate revives measure to de-fund Planned Parenthood"

So reported Heather Gillers of the Indianapolis Star late yesterday, in a story that begins:

The Indiana Senate has revived a measure to end all taxypayer funding to Planned Parenthood of Indiana —which would make Indiana the first state to end funding to the reproductive health care provider.

The Senate voted 36 to 13 today to add the de-funding measure to HB 1210, which deals with other abortion restrictions.

Sen. Scott Schneider, R-Indianapolis, the author of the amendment, said there are other health care providers that can offer women the services Planned Parenthood provides, including cancer screenings, pap smears, birth control and STD screenings.

“If (Planned Parenthood) wants to receive taxpayer money,” he said, “They can simply stop practicing abortion.” * * *

Federal law prohibits funding abortion with taxpayer dollars. Taxpayer dollars that go to Planned Parenthood pay for other health care services, which make up the vast majority of the care Planned Parenthood provides. Private donations pay for the abortions that Planned Parenthood provides.

Opponents of the de-funding measure said that cutting off funding to Planned Parenthood would leave thousands of low-income Hoosier women without birth control and other health services and would ultimately make abortions more frequent. One conservative Republican — Rep. Sean Eberhart, R-Shelbyville — opposed it the first time it came up for that reason.

Today Sen. Vi Simpson, D-Elletsville, asked Senators on the floor: “How many unwanted pregnancies do you think there would be if low income women could not access birth control from Planned Parenthood?”

Read in conjunction with this March 31st ILB entry headed "The bill's passage, Turner said, 'will make Indiana one of the most pro-life states in America'"

Also worth reading is this Slate article by Amanda Marcotte, which argues that the war against abortion is in reality a war against contraception.

Posted by Marcia Oddi on Tuesday, April 19, 2011
Posted to Indiana Government

Ind. Gov't. - More on: "In-home care is cheaper than nursing home care. People prefer it. Why won't Indiana invest more in it?"

Updating this ILB entry from yesterday, the Fort Wayne Journal Gazette today has published an opinion piece from Elmer Blankenship is the president of the Indiana Alliance for Retired Americans and Denny Lanane is the state president of United Senior Action, titled "FSSA holding out on home care." It begins:

Since December, the Indiana Family and Social Services Administration has been trying to sell a snow job regarding the costs and benefits associated with Indiana’s CHOICE home care program and the Medicaid aged and disabled waiver. Those two programs are publicly funded and provide vital home care services for senior citizens and people with disabilities.

Sad to say, the senior staff at FSSA cannot bring themselves to tell the Indiana General Assembly the truth about the CHOICE and the Medicaid aged and disabled waiver programs.

FSSA has been telling the General Assembly that CHOICE costs an average of more than $7,000 per person per year, that CHOICE clients are middle class, and CHOICE services are a luxury to many of those clients. FSSA has been telling the General Assembly the Medicaid aged and disabled waiver program costs on average $3,366 per person per year and Medicaid waiver clients are indigent.

Both of the above numbers are falsehoods, both populations are poor, and individuals on both programs must be at risk of losing their independence if they do not receive home care.

Posted by Marcia Oddi on Tuesday, April 19, 2011
Posted to Indiana Government

Ind. Law - More on "'We all have a right to self-preservation wherever we go in this state,' said Rep. Michael Speedy, R-Indianapolis"

Updating yesterday's ILB entry on SB 292, here is a quote from Kevin Allen's story today in the South Bend Tribune:

Three representatives from Lake County spoke against S.B. 292 on the House floor.

Rep. Vernon Smith, D-Gary, suggested it's hypocritical that lawmakers want to bar local governments from banning guns in libraries, parks and other areas, while they maintain the policy of prohibiting firearms inside the Statehouse.

"We want people to be able to carry guns anywhere they want to take them, yet still when we come to this governmental building, we want to be protected," Smith said. "When you come in here, you see signage that says you can't bring certain things in the building. We're concerned about our safety, but we're not concerned about the safety of people in restaurants, barber shops, sports arenas, the grocery store -- where you ought to feel like you're safe."

Every north-central Indiana representative except one voted for S.B. 292 on Monday. That one, House Minority Leader B. Patrick Bauer, D-South Bend, didn't vote.

Posted by Marcia Oddi on Tuesday, April 19, 2011
Posted to Indiana Law

Courts - More on: Indiana Attorney General and Harvard's Laurence Tribe in agreement

Updating yesterday's ILB entry, the New York Times today, in an editorial, presents the opposing view. It begins:

The case about global warming scheduled to be argued on Tuesday before the Supreme Court is a blockbuster. Eight states — from California to New York, plus New York City — sued six corporations responsible for one-fourth of the American electric power industry’s emissions of carbon dioxide.

Rather than seeking money or punishment for the defendants, they seek what everyone should agree is the polluters’ responsibility: abatement of their huge, harmful part in causing climate change. The purpose is not to solve global warming or usurp the government’s role in doing so. It is, rightly, to get major utilities to curb their greenhouse-gas emissions before the government acts.

Because there is no federal regulation of this problem in force, it is fortunate that there is a line of Supreme Court precedents back to 1901 on which the plaintiffs can build their challenge. When this lawsuit began seven years ago, one of the defendants’ main defenses was that, because the Clean Air Act and other laws “address” carbon dioxide emissions, Congress has “legislated on the subject” and pre-empted the suit. The pre-emption claim was spurious when they made it and remains spurious now.

Maureen Groppe, Gannett Washington Bureau, has this lengthy story today, headed "Court to decide whether states can sue utilities over greenhouse gases."

Posted by Marcia Oddi on Tuesday, April 19, 2011
Posted to Courts in general

Ind. Courts - "Federal Judges See Sentencing Injustice, but the Calendar Disagrees"

I've categorized this story under "7th Circuit decisions" because the 7th is the only circuit to rule on this issue so far.

Adam Liptak's "Sidebar" column today in the NY Times is about the new federal law that reduces penalties for selling crack cocaine, but only for offenses committed after August. Liptak begins: "The federal judiciary is in something like open rebellion over a new law addressing the sentences to be meted out to people convicted of selling crack cocaine." More from the story:

The problem is that the law seems to reduce sentences only for offenses committed after it went into effect in August. The usual rule is that laws do not apply retroactively unless Congress says so, and here Congress said nothing. That seems to mean that hundreds and perhaps thousands of defendants who committed crack-related crimes before August will still face very harsh sentences.

In his recent decision, Judge Michael A. Ponsor of Federal District Court in Springfield, Mass., said that could not be right. It is one thing, he wrote, to have to impose an unjust sentence. But it is asking too much of judges, he went on, to require them to continue to sentence defendants under a racially skewed system “when the injustice has been identified and formally remedied by Congress itself.” * * *

But it is hardly clear that the revolt will succeed. The trial court decisions make an excellent case based on fairness. Their legal reasoning — that Congress must have meant for the law to be retroactive even though it did not say so — is less convincing.

The only appeals court to directly address the question so far, in Chicago, said only Congress could apply the new standards to old cases.

“We have sympathy,” Judge Terence T. Evans wrote for a unanimous three-judge panel, “for the two defendants here, who lost on a temporal roll of the cosmic dice and were sentenced under a structure which has now been recognized as unfair.”

Sentencing Law blog has more here, today.

The 7th Circuit opinion is U.S v. Fisher, decided March 11, 2011. Sentencing Law wrote about it here, on March 12th.

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

Monday, April 18, 2011

Ind. Law - "'We all have a right to self-preservation wherever we go in this state,' said Rep. Michael Speedy, R-Indianapolis"

Rep. Speedy sponsored SB 292, which passed the House today, 77-21. Here is the Roll Call.

This afternoon's brief Indy Star story states:

The bill now contains exemptions that allow gun bans in Lucas Oil Stadium, in city council buildings that install metal detectors, and in county hospitals. But it would still prohibit gun bans in public libraries and in public parks.
One might argue that unarmed people in public libraries and parks also have a right to self preservation.

Posted by Marcia Oddi on Monday, April 18, 2011
Posted to Indiana Law

Ind. Gov't. - "Republicans in the Senate trying to change the rules of the game regarding lawsuit against Charlie White's eligibilty as a candidate" [Updated]

FWJG's Niki Kelly just tweeted:

Senate amendment changes law so if Charlie White is found ineligible, Daniels would appoint replacement rather than Democrat taking over.
Now from Eric Bradner of the Ev C&P:
The state Senate just stuck its nose in the Charlie White case in an effort to keep his Democratic opponent from ever taking office

Senate votes to change law so that Gov. Daniels appoints new SOS if Charlie White found ineligible to serve.

So far, no one has mentioned the bill number.

Now from Mary Beth Schneider of the Indy Star:

Amendment was offered by Sen. Mike Young, R-Indianapolis, who insisted this is not change the election rules in mid-game. Really? Really.

Under current law, the 2nd top vote-getter -- D Vop Osili -- would be winner. Makes it ez now for GOP-controlled boad to dump White.

Must have been HB 1242...

[Updated at 6:45 PM] Yes, it was HB 1242, and here is the amendment that the Senate adopted this afternoon on 2nd reading.

"Senate votes to give Daniels power to pick secretary of state replacement" is the story posted on the Indy Star site by Mary Beth Schneider at 5:06 PM. From the story:

Sen. Mike Young, R-Indianapolis, offered the amendment to House Bill 1242, arguing that it would be wrong for the person getting the second-most votes to be declared the winner.

“The loser shouldn’t win,” he said.

But under his amendment, as I read it, the loser will still win if the race is for "governor, lieutenant governor, justice of the supreme court, judge of the court of appeals, and judge of the tax court." And it is odd that the judges are included at all ...

Posted by Marcia Oddi on Monday, April 18, 2011
Posted to Indiana Government

Ind. Courts - More on: Mandatory retirement age for trial court judges? And more on noncode drafting issues

Updating this long ILB entry from Feb. 9, 2011, SB 463, which repeals or otherwise removes all provisions that establish a mandatory retirement age for superior court and county court judges, has passed both Houses and is again awaiting the Senate's action.

Noncode drafting issues continue.
The bill also, in SECTIONS 7 and 8, adds a fourth judge to the Johnson superior court as of January 1, 2015. Effective July 1, 2011, the Indiana Code 33-33-41, sections 3 and 4, will read:

Sec. 3. (a) There are established (4) courts of record to be known as the Johnson superior court No. 1, Johnson superior court No. 2, Johnson superior court No. 3, and Johnson superior court No. 4.
(b) Except as otherwise provided in this chapter, each Johnson superior court is a standard superior court as described in IC 33-29-1.
(c) Johnson County comprises the judicial district of each court.

Sec. 4. (a) The Johnson superior court No. 1 and Johnson superior court No. 2 each have one (1) judge who shall hold sessions in the Johnson County courthouse in Franklin.
(b) The Johnson superior court No. 3 and Johnson superior court No. 4 each have one (1) judge who shall hold sessions in a place to be determined and provided by the board of county commissioners of Johnson County.

However, if you rely only on the Indiana Code, you will be misled. SECTION 22 of SB 463 includes a noncode section that reads:
(a) Notwithstanding IC 33-33-41-3 and IC 33-33-41-4, both as amended by this act, the Johnson superior court No. 4 is not established until January 1, 2015.
(b) The initial election of the judge of the Johnson superior court No. 4 added by IC 33-33-41-3 and IC 33-33-41-4, both as amended by this act, is the general election on November 4, 2014. The term of the initially elected judge begins January 1, 2015.
(c) This SECTION expires January 2, 2015.
Despite continued discussions about including operative law in the Indiana Code, the "noncode" practice apparently continues to this day.

Why not put this section that makes it clear that Johnson superior court No. 4 is not established until January 1, 2015 into the Indiana Code!

This Johnson County example may not have wide impact, but the fact that remains that you apparently still cannot rely on the Indiana Code, you continue to have to look at the enrolled act that stands behind every section of the Code to ascertain whether there were noncode provisions of import appended thereto.

Posted by Marcia Oddi on Monday, April 18, 2011
Posted to Courts in general

Ind. Gov't. - "In-home care is cheaper than nursing home care. People prefer it. Why won't Indiana invest more in it?"

Heather Gillers of the Indianapolis Star wrote this long, eye-opening report for the Sunday edition. It begins:

Eight years ago, Indiana legislators passed a law that could save taxpayers millions of dollars that the state spends to support elderly and disabled Hoosiers who live in nursing homes.

The law also would make it possible for thousands of Hoosiers to remain in their homes or with loved ones.

The law had bipartisan support and was championed by fiscal conservatives and advocates for the elderly.

But in what one lawmaker describes as a "penny-wise and pound-foolish" decision, the state has never taken advantage of a key program in the law. Not under then-Gov. Joe Kernan, a Democrat. And not under Republican Gov. Mitch Daniels.

Instead, eight years later, Indiana taxpayers continue to be on the hook for about $300 million a year in nursing home costs.

Another quote from the lengthy, must-read story:
Whether Hoosiers would choose home health care if it were provided to more people is not up for debate. The two major home-care programs both have nearly 6,000-person waiting lists.

In contrast, 18 percent of the state's nursing home beds sit empty. Nursing home industry officials say that shifting patients to home health care would further hurt their business.

Critics, who say the state has too many nursing homes, are wary of the industry's powerful lobby, which has fought hard to ensure that patients -- and the taxpayer money that comes with them -- continue to flow in their direction.

The result is that Indiana ranked 45th among the states in the percentage of its Medicaid long-term care budget devoted to home- and community-based care, according to a 2009 study by the AARP Public Policy Institute.

Posted by Marcia Oddi on Monday, April 18, 2011
Posted to Indiana Government

Ind. Gov't. - SJR 9, a constitutional amendment to protect your rights to hunt and fish

The ILB has had several entries on SJR 9:

Ind. Law - Proposed constitutional amendment may be no laughing matter

Updating this ILB entry from Feb. 7th re Sen. Steele's SJR 9 which would add chickens to our Indiana bill of rights, Eric Bradner of the Evansville Courier & Press writes today in a column headed "Indiana Senate cries fowl,...

Posted in The Indiana Law Blog on February 13, 2011 03:10 PM

Ind. Law - Proposed amendment would add chickens to our Indiana bill of rights

Doug Masson's Blog had this report yesterday that began:The Senate passed Sen. Steele’s SJR 9 out of committee which amends the Indiana Constitution to provide, among other things, that the commercial production of poultry is a valued part of our...

Posted in The Indiana Law Blog on February 7, 2011 11:47 AM

Eric Bradner wrote again on SJR 9 yesterday in the C&P:
That constitutional amendment that I mocked earlier this year — the one that would write Hoosiers' rights to hunt and fish into the state's most important document — is back.

The Indiana House of Representatives made some changes to it last week. Apparently, the problem with the amendment in its previous form was that it would have included such broad protections that hunters and fishermen could have legally wandered onto someone else's private property to engage in their sport.

The episode once again highlighted the ridiculousness of the notion that Indiana needs a constitutional amendment to protect your rights to hunt and fish.

Proponents argue they are under siege, faced with attacks from animal rights' groups.

My response: Last time I checked, the National Rifle Association was doing a pretty good job lobbying on its own. Not to mention, I've never met a legislator who wants to keep anyone from hunting or fishing.

Here is the most recent (April 15th) wording of the new section which is proposed to be added to Article 1 of our constitution, the Indiana Bill of Rights:
Section 38. The people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, poultry, or dairy products, which is a valued part of our heritage and shall be forever preserved for the public good, subject only to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly. Hunting and fishing shall be the preferred means of managing and controlling wildlife. This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.
Really.

SJR 9 is currently on the 3rd reading calendar in the House.

Posted by Marcia Oddi on Monday, April 18, 2011
Posted to Indiana Law

Ind. Gov't. - "Indiana's gasification plant, Daniels said, is 'highly likely to produce savings. If it doesn't, it's a terrific hedge.'"

Continuing his coverage of the Rockport gasification plant project, Ted Evanoff of the Indianapolis Star reported Sunday in a story headlined "Rockport plan fuels coal debate: Backers tout savings, but plant faces market risks, utility exec says." (A long list of earlier Rockport entries.) Some quotes:

What's on the table, however, is a deal that some utility executives warn could backfire on 1.5 million natural gas customers throughout Indiana.

The deal would tie the monthly natural gas bill of every home, farm and most businesses in the state to profits or losses on gas created in Indiana by an investment firm that has partnered with Rosenberg. If gas from coal makes money, monthly bills would edge down for Indiana consumers, but if manufactured gas costs more, bills would edge up.

Higher bills are likely, say the utility execs, noting gas prices today aren't rising on the open market as Rosenberg had expected. Since the hurricanes, prices have moderated in part because of new finds of gas in shale rock.

Gas taken from the vast North American shale fields could wind up cheaper than Indiana's gas from coal, contends utility executive Jerrold Ulrey. If this proves true, and gas from coal is costlier, he said, the deal before the IURC would saddle Indiana gas customers with higher monthly gas bills for years.

"By the end of the first 10 years, the (Indiana) gas customers would have an accumulated loss of nearly $500 million," estimated Ulrey, vice president of regulatory affairs and fuels at Vectren Holdings, the Evansville utility that serves part of metropolitan Indianapolis.

While the gas plan sailed through the General Assembly in 2008 and 2009 with Daniels' support, it is now in the hands of the Utility Regulatory Commission, which has the final say. Three field hearings to gather residents' opinions are scheduled before the commissioners this week in Indianapolis, Jasper and West Lafayette.

From later in the long story:
Indiana's gasification plant, Daniels said, is "highly likely to produce savings. If it doesn't, it's a terrific hedge."

Hedge means insurance. In the event coal from gas is costlier than shale gas, the thinking goes, the manufactured gas won't cost too much more. So it will be cheap insurance against the day that shale gas shoots up in price. * * *

Daniels dismisses the utility executives' views. Gas prices will rise in the years ahead, he insists, and when they do, consumers will laud Rockport gas.

"It's going to save them money," Daniels said. "It's going to save hundreds of millions."

Posted by Marcia Oddi on Monday, April 18, 2011
Posted to Indiana Government

Courts - "Illinois House Speaker Michael Madigan and other politicians often weigh in on the selection of Cook County associate judges — a process supposed to be free of political influence"

Jeff Coen and Todd Lighty has this lengthy report in the April 15th Chicago Tribune. It begins:

The letters from Illinois House Speaker Michael Madigan are short and to the point.

"Dear Judge," begins one, written on Madigan's General Assembly stationery. "I believe that these people would be excellent members of the judiciary."

Tucked into the letter to Cook County's Circuit Court judges are the names of a handful of lawyers, blessed by Madigan to fill judicial openings.

Madigan's letters provide a glimpse of his influence in what passes for merit selection of associate judges, who are chosen by the county's 275 circuit judges.

Many of those full circuit judges were publicly elected with the help of the Democratic Party that Madigan controls — and the judicial slating committee run by Ald. Edward Burke, 14th. While the party wields overt power in those elections, the process of picking associate judges is touted as a way for talented lawyers to make the bench without bowing to political bosses or wooing uninformed and uninterested voters.

But politicking for the coveted associate judgeships is rampant in Chicago's legal community, and the Tribune found one of the best ways to win a spot is to be on what is widely referred to as "Madigan's list."

ILB: The Illinois "associate judges" sound like our magistrates and commissioners in superior court. Can any readers provide input (tell me if you don't want attribution) on how the magistrate/commissioner process works in Indiana? Here is a list of the magistrates and commissioners in Marion County, for example. One reader has observed:
I believe the process is very political with the party chairs (and potentially others) having a lot of sway.

(ILB: Of course, this may not be the best example, as the whole judge selection process in Marion County is squirrelly. See Boehm: "Electing judges a charade in Marion County.")

Compare this to the federal magistrate process where the judges seem to want a person who is going to do the work well and make their life easier--and couldn't care less about party affiliations.

More from the Illinois story:
"People assume that if you are on Madigan's list, you will get made," one circuit judge said. "Madigan has a lot of power in Springfield. He does things that could affect our salaries and pensions."

State lawmakers must sign off on changes to salary and retirement benefits for the more than 400 judges in the Cook County Circuit Court system, the nation's largest, with courts at the Daley Center in the Loop and six suburban municipal districts.

The Cook County Democratic Party, run by Madigan ally Joseph Berrios, acts as a virtual gatekeeper for candidates seeking to run in the party primary to become a full circuit judge — a win there is tantamount to victory in the general election. That slating process has long been run by Burke, whose wife, Anne Burke, became a Supreme Court justice with the party's help.

This year, as in others when there are associate judge openings, a nominating committee of circuit judges will select a shortlist of finalists from the applicants.

The shortlist sets off a frenzied two weeks of private campaigning. The candidates send cards, letters, resumes and recommendations, and try to visit as many circuit judges as they can and ask for their vote. Ethnic groups lobby for their members to be supported, and circuit judges sometimes write one another letters pushing for candidates they know.

From 2003 through 2009, there were five contests for associate judge, and more than 135 lawyers made the final cut to fill 82 vacancies.

Many got recommendations from judges, lawyers, bar associations and politicians, in letters that often mentioned how they know the candidates and what their qualifications are.

Posted by Marcia Oddi on Monday, April 18, 2011
Posted to Courts in general

Law - Signing statements: "Obama’s Embrace of a Bush Tactic Riles Congress "

Updating this ILB entry from April 16th, Charlie Savage of the NY Times, who wrote the book on signing statements, reports today:

WASHINGTON — President Obama has issued signing statements claiming the authority to bypass dozens of provisions of bills enacted into law since he took office, provoking mounting criticism by lawmakers from both parties. * * *

After Mr. Bush transformed signing statements from an obscure tool into a commonplace term, Mr. Obama’s willingness to use them has disappointed some who had hoped he would roll back the practice, not entrench it.

“We didn’t think it was an appropriate practice when President Bush was doing it, and our policy is such that we don’t think it is an appropriate practice when President Obama is doing it,” said H. Thomas Wells, who just stepped down as president of the American Bar Association.

In 2006, the association called the practice unconstitutional and said presidents should veto legislation if it had flaws, giving Congress a chance to override the pronouncements.

But other legal experts argued that signing statements were lawful and appropriate because it was impractical to veto important bills over small problems. Among them, Walter Dellinger, who helped develop the legal framework for signing statements as a Clinton administration official, said Mr. Obama was using the mechanism appropriately, and the problem with Mr. Bush’s statements was that he cited dubious legal theories.

“The fact that a previous or subsequent president might refuse to comply with laws that are valid is not a reason for this president to decline to assert his authority with regard to laws that are invalid,” Mr. Dellinger said. * * *

“He has not pushed the envelope as far as the Bush administration in making the kind of claims that Bush made,” said Phillip Cooper, a Portland State University professor who studies signing statements. “But he is still using it in ways that were controversial before George W. Bush came to office.”

Posted by Marcia Oddi on Monday, April 18, 2011
Posted to General Law Related

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

For publication opinions today (2):

James Stewart v. State of Indiana - This 27-page opinion by Judge Kirsch involves the following issues: I. Whether Stewart's convictions for felony murder and robbery violated double jeopardy principles; II. Whether the trial court abused its discretion when it admitted certain evidence and excluded other evidence under the rules of hearsay; III. Whether Stewart's 425-year sentence violated equal protection considerations and was fundamentally unfair because it was the functional equivalent of life without parole and he did not receive the procedural safeguards and protections of the life without parole (“LWOP”) statute; IV. Whether the trial court abused its discretion when it admitted certain crime scene and autopsy photographs of the victims; and V. Whether sufficient evidence was presented to support Stewart's convictions. The opinion vacates in part and affirms in part. [ILB - Indy6 News already has a story on this ruling.]

In Gregory E. Staten v. State of Indiana , a 16-page, 2-1 opinion of which the last 8-pages are a dissent, Judge Crone writes:

[T]he State concedes that, as charged, the evidence at trial was insufficient to prove that Staten committed the Class C infraction. Therefore, we vacate the trial court's finding that Staten committed the Class C traffic infraction as well as the related $5 fine. * * *

Staten contends that the trial court abused its discretion by admitting his blood alcohol test results obtained from the chemical blood test following the traffic stop. Specifically, Staten argues that, despite his consent to submit to a chemical test, the blood alcohol test results obtained from the chemical blood test were inadmissible because the traffic stop was illegal. * * *

Here, the record clearly demonstrates that Staten disobeyed the posted stop sign. * * * Accordingly, the trial court did not abuse its discretion in admitting the blood alcohol test results obtained from the chemical blood test following the traffic stop. * * *

Staten does not dispute that he was intoxicated at the time of the traffic stop, but argues that the State did not prove the element of endangerment. * * *

Here, Staten's intoxication clearly resulted in unsafe driving practices. Trooper Greer testified that while driving approximately 100 yards behind Staten, he saw Staten drive his vehicle left of center line and through a 3-way stop sign without stopping or slowing down. We conclude that Trooper Greer's testimony regarding Staten's unlawful and unsafe driving is sufficient to prove that he was operating a vehicle in a manner that could endanger the public, the police, or himself. * * *

KIRSCH, J., concurs.
CRONE, J., concurs in part and dissents in part with opinion.[that begins, as p. 9 of 16] The State concedes that it failed to prove that Staten committed the class C traffic infraction with which he was charged, and I concur in the majority's decision to vacate the trial court's finding on that count. I respectfully disagree, however, with the majority's conclusions that (1) the traffic stop was valid and (2) the State presented sufficient evidence to sustain Staten's conviction for class A misdemeanor operating while intoxicated (“OWI”).

NFP civil opinions today (0):

NFP criminal opinions today (2):

Marlan Bonds v. State of Indiana (NFP)

Tommy L. Borders v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 18, 2011
Posted to Ind. App.Ct. Decisions

Courts - Miami Herald editorial: "Legislature’s attempt to overhaul judicial system is based on spite"

Interesting opinion piece in Sunday's Miami Herald.

Posted by Marcia Oddi on Monday, April 18, 2011
Posted to Courts in general

Courts - Indiana Attorney General and Harvard's Laurence Tribe in agreement

Both have written opinion pieces on the upcoming argument before the SCOTUS in the case of American Electric Power Co. Inc. v. Connecticut.

First, here is Lyle Denniston's preview of Tuesday's argument, from SCOTUSblog, plus a link to the case page, with all the background material, including the link to an amicus "Brief for the States of Indiana, Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, West Virginia, and Wyoming in Support of Petitioner."

Here is the letter by AG Greg Zoeller, as it appears in the April 17th Evansville Courier & Press, under the heading "The separation of powers must be preserved." A quote:

But at its core is a concept that dates to the very founding of our Constitution: The separation of powers of our three branches of government.

In our brief we contend federal district courts are not the venues to decide inherently political questions that belong instead within the legislative and executive branches.

Here is an earlier, related ILB entry from Sept. 10, 2010.

And here, in the Boston Globe's April 16th issue, is a long article headed "Take it to climate court? Global warming lawsuits are a misuse of the judiciary branch," authored by Laurence H. Tribe. Some quotes:

Congress, through the Clean Air Act and other measures, has empowered the Environmental Protection Agency to regulate greenhouse gases, and that agency has begun to do so, prodded by a Supreme Court ruling in favor of Massachusetts when the state sued the EPA to compel it to take up the problem. The courts should reject the political and administrative roles that would be thrust upon them by litigants dissatisfied with Congress’s decision to entrust the EPA with this challenging mission — or by those dissatisfied with the efforts of the president and the State Department to engage in the international diplomacy required to cope with an obviously international problem. * * *

The inherently limited power and influence of the judicial branch must be preserved for the elaboration of constitutional and statutory texts and legal principles, the protection of politically vulnerable groups and unpopular rights, and the preservation of the structural boundaries of our legal system. That power and influence are squandered when courts are asked to serve as political agents and as social and scientific engineers.

Posted by Marcia Oddi on Monday, April 18, 2011
Posted to Courts in general | Environment

Courts - SCOTUS "should hold that the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections"

So argue Erwin Chemerinsky, the dean of the law school at the University of California, Irvine, and James J. Sample, an associate professor of law at Hofstra, in an op-ed piece today in the NY Times, headed "You Get the Judges You Pay For", that begins:

LEGAL elites must come to terms with a reality driven by the grass-roots electorate: judicial elections are here to stay. Given this reality, we should focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials.

Posted by Marcia Oddi on Monday, April 18, 2011
Posted to Courts in general

About this blog - 8th birthday of ILB; how to become a supporter

8th Birthday. Can you believe it! The Indiana Law Blog had its 8th Birthday on March 16th, 2011! To see the first entry you'd have to go back to March 2003 on the Old Blog Site. Starting on January 29, 2004, the ILB moved to the NewBlog Site - the one you are reading now.

High Stats. The ILB first made its SiteMeter stats accessible in 2008. In addition, check Justia, a site that ranks around 2,000 national law blogs, where the ILB currently is ranked 9th all-time.

Front-page Supporters. Many thanks to the Indiana State Bar Association, which signed on as an annual supporter July 1st, 2007 and has been renewing every year. And to Doxpop, LLC, which has been an ILB supporter since April 1, 2008 and just signed on again for another year. Many thanks. And to the newest ILB supporter, the ISBA Litigation Section, which became a front-page supporter July 1, 2010. Maybe more ISBA sections, or other bar associations, might become ILB supporters?

What about you and your firm or company?

Then please sign on as annual ILB supporter -- pay quarterly, the next quarter starts July 1st, but the ILB can prorate and you can start your listing today. Or pay annually.

Check the Law Firm Supporters page. Your firm could join this list of valued ILB supporters:

Here is a copy of the ILB Supporter Agreement that you can fill out and mail.

Or, better still, become a Front Page ILB Supporter, like the Indiana State Bar Association, Doxpop, and the ISBA Litigation Section.

Posted by Marcia Oddi on Monday, April 18, 2011
Posted to About the Indiana Law Blog

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 began Friday, April 1st. Please become an ILB supporter! Check the ILB supporters out via the links in the upper right-hand column of this page, including the law firm and individual supporters.

From Sunday, April 17, 2011:

From Saturday, April 16, 2011:

Posted by Marcia Oddi on Monday, April 18, 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 4/18/11):

Thursday, April 21st

Next week's oral arguments before the Supreme Court (week of 4/25/11):

Wednesday, April 27th

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 4/18/11):

Tuesday, April 19th

Wednesday, April 20th

Thursday, April 21st

Next week's oral arguments before the Court of Appeals (week of 4/25/11):

Tuesday, April 26th

Friday, April 29th

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, April 18, 2011
Posted to Upcoming Oral Arguments

Sunday, April 17, 2011

Ind. Gov't. - "Crime forfeiture bill clarifies assets distribution"

Sophia Voravong's story today in the Lafayette Journal-Courier gives the local take on Senate Bill 215, which seeks to clarify Indiana's forfeiture law.

Posted by Marcia Oddi on Sunday, April 17, 2011
Posted to Indiana Government

Environment - "Flood closures have cost Horseshoe casino an estimated $14.7 million"

Grace Schneider of the Louisville Courier Journal has this long story this weekend. It begins:

As the Ohio River swelled out of its banks before midnight March 9, guests at the Horseshoe casino hotel were rustled out of bed and away from the gaming tables and asked to pack their bags and leave.

The next afternoon, gamblers, card dealers and other casino workers aboard the riverboat were evacuated, marking the fourth time the Harrison County casino has been forced to close because of high water.

Such emergency shutdowns, mandated by the casino's federal Corps of Engineers permit, have cost the casino an estimated $14.7 million in gaming revenue since January 2000.

As a result, the state of Indiana has lost an estimated $2.75 million in wagering tax revenues, and the Harrison County government has lost $950,000. About $550,000 also been lost in admission taxes, which would have been distributed between the state and county.

Each closure is a fresh reminder of the costly gamble that original developer Caesars World made in choosing the flood-prone site on Ind. 111 for the $400 million complex, over the warnings of environmentalists.

“It's the same old same old. We told you so,” said Don Mottley, a spokesman for Save Our Rivers, a group that opposed the location because of flood concerns and potential damage to a nearby mussel bed.

Despite the repeated flooding and lost revenue, neither the casino nor the Indiana Gaming Commission, which approved the development plan, have given any indication the riverboat should be moved.

More, from near the end of the lengthy story:
The casino’s previous flood closings include a 3½-day shutdown in March 2008 that cost an estimated $2.8 million; a 10-day shutdown in January 2005 that cost an estimated $6.4 million; and a 1½-day shutdown in February 2000 that former general manager Ed Garuto said at the time cost about $1 million.

Besides the flood closures, the boat was shut down in June 1999 and moved because the river was too low, raising fears it could get mired in the mud and accumulated silt in the docking bay. But after being moved downstream, the boat was rammed at its temporary site by a runaway barge. That entire 13-day episode cost roughly $7.2 million.

Tim Maloney, public policy analyst with the Hoosier Environmental Council, said that environmental groups who fought the casino development unsuccessfully in federal court feel somewhat vindicated by the casino’s battles with Mother Nature.

Maloney said environmentalists long protested Indiana's original law for casinos to cruise and dock on Lake Michigan and the Ohio River because of potential damage to wetlands, aquatic resources and buried artifacts.

But the proposal in Harrison County stood out because it was obviously a poor site and flooding was a very predictable downside, Malone said.

“It was one of the problems that we all collectively raised,” he said.

But Ed Feigenbaum, publisher of a newsletter that tracks Indiana's gambling industry, said every casino “is susceptible to the idiosyncrasies of its own location.” He noted that Lake Michigan's high waves and “lake-effect snow” forced two casinos there to close for more than a day this year.

And regulators knew 16 years ago when they were reviewing the first casino plan for Evansville that river traffic and river conditions would pose problems, he said.

“No site and no property is perfect,” Feigenbaum said.

Posted by Marcia Oddi on Sunday, April 17, 2011
Posted to Environment | Indiana Government

Ind. Law - "Legislators pushing looser gun laws this session"

This is odd, an AP story today published in a number of out-of-state papers, attributed to the Fort Wayne Journal Gazette, but no sign of the story in the Fort Wayne paper itself. Here it is, as published in the Connecticut Post. Some quotes:

FORT WAYNE, Ind. (AP) — Indiana lawmakers appear determined to ease state gun regulations this year despite reservations from local officials and, some advocates say, gun owners themselves. * * *

A raft of bills that would relax gun restrictions is working its way through the Legislature, including bills that would allow handguns to be more freely carried without a permit and make it permissible to take guns into public buildings in most cases, The Journal Gazette reported.

Senate Bill 292 essentially prohibits local governments, libraries and mass transit systems from regulating guns in any manner. That would eliminate prohibitions against guns in most municipal buildings and public parks.

State law prohibiting guns on school grounds would stand. And the bill doesn't prohibit state regulations on guns, such as state rules passed in 2007 banning guns from the Statehouse and adjoining government center, though lawmakers get an exception.

There's another exception for buildings with courts. But Helmke points out that zoning board meetings and other sessions also can get heated. The bill does allow governing bodies to restrict "the intentional display of a firearm at a public meeting."

Randy Brown, general manager for Fort Wayne Memorial Coliseum, expressed concern that the bill won't allow the county-run coliseum board to ban weapons for certain events.

"There are some events that are more high risk than others," Brown said. "Legislating away our flexibility is a concern. We are asking for a disaster in this state." * * *

Another gun bill that has passed the full House would allow people to more freely carry handguns without permits, in their vehicle or on the property of someone who has given consent. Supporters say this would help hunters. Currently, Hoosiers can have guns at their home or business with no permit. But they do need a permit to carry handguns elsewhere.

[Paul Helmke, former Fort Wayne mayor and head of the Brady Center to Prevent Gun Violence] said the bill is one step closer to "not having licensing at all."

[Sen. Jim Tomes, R-Wadesville, the bill's sponsor] said there is no mention of having a license for guns in the Indiana or U.S. constitutions.

"It would be nice but unlikely to get rid of licenses," he said. "That would raise anxiety."

Yet another bill that already has passed both chambers would prohibit employers from asking workers about guns and ammunition that they might have in their vehicles and prevent them from requiring employees with weapons to park in separate areas.

It's related to a bill passed last year that barred employers from prohibiting employees from having weapons in their vehicles on company parking lots. * * *

In Indiana gun-owning households, The Journal Gazette said, only 9 percent wanted less strict gun laws; 42 percent said the laws should be stricter; and 45 percent supported keeping the laws the same.

Here are some background ILB entries:

Posted by Marcia Oddi on Sunday, April 17, 2011
Posted to Indiana Law

Ind. Gov't. - "Indiana lawmakers push voluntary renewable standards"

That is the headline of the AP story being carried today by Indy Ch. 6 and Ch. 13. The Ch. 13 version identifies the bill as SB 251.

This ILB entry yesterday, headed "Pipeline bill showing signs of rebirth (as is CWIP for nuclear power plants)," is also about SB 251.

Yes, the CO2 pipeline, CWIP for nuclear power plants, and "clean energy" are all now lumped together in the latest version of SB 251.

"SB 251, Clean Energy", is on Monday's second reading calendar in the House.

Posted by Marcia Oddi on Sunday, April 17, 2011
Posted to Environment | Indiana Government

Ind. Courts - Should a judge be able to select the copier for his court?

Or should the choice be made by the County Commissioners or County Council? That is an issue in Howard County, where Superior Court I judge William Menges' office is in need of a new copier. Some quotes from a lengthy story April 12th in the Kokomo Perspective:

[Commissioner Paul Wyman] "My problem is which machine do we go with."

"But until you know how my office operates, you're not in a position, quite frankly, to tell me how to operate the day-to-day of the court and which is going to be best," said Menges. "As far as I know, you've never been in my court and seen what happens.

"And, in all fairness, if you come up there, not being a lawyer, not being a litigator, you wouldn't have any idea what you were looking at anyway. Anymore than I can come into your office and tell you how to improve your operation."

"I am going by the numbers you're sharing with me," said Wyman. "You've given us the data. The numbers you're giving me all fit the Bizhub 501 just fine. So I have to make a decision on dollars. I'm asking you to take the middle of the road. There is nothing the 501 can't do for you that you need done. Why spend the extra $4,300?"

It was the climax of a debate that plodded along for more than 20 minutes. Menges touted his record of fiscal responsibility, touting an overall saving for $238,000 for taxpayers since being elected to the bench. A portion of that savings - $63,000 - came from obtaining grants to cover one-time costs, like the purchase of a big-screen television for remote hearings. The remainder came from not spending money at the budgeted rate in 2004.

"That's money I could have easily said I want the same budget as last year," said Menges. "I'm very careful with how we spend taxpayers' money. That's why I've been able to save the $238,000."

Menges also engaged in a number of analogies to try to demonstrate the difference in quality between the 501 and 601 models beyond the numbers which show a 10 page-per-minute increase in speed. These comparisons caused Wyman to respond with incredulity.

"It's pretty much the same comparison between the Tahoe and the Caprice," said Menges, referring to the Howard County Sheriff's Department's decision to purchase the Tahoe because of its towing and storage capabilities not shared by the Caprice.

"Seriously?" asked Wyman.

"Seriously," said Menges. "The difference in weight and the difference in size and the difference in life expectancy is the same situation. Facetiously, people have asked me if I really need a copier. The court has gotten by with a foolscap, a quill pen and a bottle of ink. Theoretically, we could get by without any copiers or computers or typewriters.

"The function we're performing is exactly the same as it was back when Indiana became a state. The difference is, instead of handling perhaps one case a day, we're handling 110, which I think is our record."

The commissioners remained unconvinced. They voted unanimously to authorize the purchase of the less expensive copier. Menges balked.

"I'm not interested in the 501. It doesn't do what I need it to do. It's no different than saying let's go back to quill pens. I'm not interested."

The county council is Menges' next step if he persists in seeking funding for the larger copy machine.

More from the April 17th Kokomo Tribune:
As expected, Howard Superior Court 1 Judge Bill Menges is taking his request for a Bizhub 601 copier to the Howard County Council. * * *

We don’t doubt that the council, which is composed of seven members (rather than three), could be more amenable to Menges’ desires.

But even if the council approves an additional appropriation for the copier, our understanding is that Menges will still have to go back to the commissioners for a purchase order before he can obtain the copier.

So who ultimately has the say over Menges’ copier? Does the fiscal/legislative body get to decide, or the executive body? All of the readers who remember the epic “stay in your lane” battle between former Kokomo Mayor Matt McKillip and the Kokomo Common Council, circa 2004, stay tuned. This won’t be Pacquiao vs. Mosely, but it might be close.

Posted by Marcia Oddi on Sunday, April 17, 2011
Posted to Indiana Courts

Saturday, April 16, 2011

Law - "President Obama Issues Signing Statement Indicating He Won’t Abide by Provision in Budget Bill" [Updated]

From the blog of ABC News Senior White House Correspondent Jake Tapper, this entry. The entry begins:

In a statement issued Friday night, President Obama took issue with some provisions in the budget bill – and in one case simply says he will not abide by it.

Last week the White House and congressional Democrats and Republicans were involved in intense negotiations over not only the size of the budget for the remainder of the FY2011 budget, and spending cuts within that budget, but also several GOP “riders,” or policy provisions attached to the bill.

One rider – Section 2262 -- de-funds certain White House adviser positions – or “czars.” The president in his signing statement declares that he will not abide by it.

“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority,” he wrote. “The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it. Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.”

Therefore, the president wrote, “the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.”

In other words: we know what you wanted that provision to do, but we don’t think it’s constitutional, so we will interpret it differently than the way you meant it.

[Updated April 17th] James Risen of the NY Times has more here, under the heading "Obama Takes On Congress Over Policy Czar Positions."

Posted by Marcia Oddi on Saturday, April 16, 2011
Posted to General Law Related

Ind. Decisions - Transfer list for week ending April 15 2011

Here is the Clerk's transfer list for the week ending April 15, 2011. It is one page (and 9 cases) long.

One petitions to transfer was granted:

__________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the January 11, 2011 list.

The ILB archive now contains seven years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Saturday, April 16, 2011
Posted to Indiana Transfer Lists

Environment - "G.O.P. Push in States to Deregulate Environment"

That is the headline to this long NY Times story today by Leslie Kaufman. Some quotes:

Weeks after he was sworn in as governor of Maine, Paul LePage, a Tea Party favorite, announced a 63-point plan to cut environmental regulations, including opening three million acres of the North Woods for development and suspending a law meant to monitor toxic chemicals that could be found in children’s products.

Another Tea Party ally, Gov. Rick Scott of Florida, has proposed eliminating millions of dollars in annual outlays for land conservation as well as cutting to $17 million the $50 million allocated in last year’s budget for the restoration of the dwindling Everglades.

And in North Carolina, where Republicans won control of both houses of the Legislature for the first time in 140 years, leaders recently proposed a budget that would cut operating funds to the state’s Department of Environment and Natural Resources by 22 percent. * * *

The strategies have been similar across the affected states: cut budgets and personnel at regulatory agencies, prevent the issuing of new regulations, roll back land conservation and, if possible, eliminate planning boards that monitor, restrict or permit building development.

Posted by Marcia Oddi on Saturday, April 16, 2011
Posted to Environment

Ind. Gov't. - More on: Pipeline bill showing signs of rebirth (as is CWIP for nuclear power plants)

Updating yesterday's ILB entry, this is from a communication that went out to Indiana Farm Bureau members:

Indiana Farm Bureau policy states: “With the exception of public utility rights-of-way, Farm Bureau is opposed to the use of Eminent Domain to secure property for private interests.”

Early next week, the Indiana House of Representatives will consider a bill that will grant eminent domain authority to a private company. SB 251, a comprehensive bill dealing with clean energy and other utility issues, was amended in a committee to include a provision that will grant private companies the right to use eminent domain to secure the rights-of-way and easements necessary to construct carbon dioxide pipelines in Indiana.

The language of SB 251 is an improvement over an earlier bill that was defeated in the Senate. It does raise the level of compensation for agricultural land taken for the pipeline from 100% to 125%; it requires the Indiana Utility Regulatory Commission to approve an agricultural mitigation plan; it provides that the private interest may acquire no greater interest than an easement or right-of-way; and it includes a sunset provision that will terminate the authority if it is not used within ten years. Nevertheless, it does not meet Farm Bureau’s policy that eminent domain authority not be vested in private interests.

Farm Bureau members and others who are concerned with the rights of private property owners in Indiana are urged to contact their State Representative this weekend and urge them to vote NO on SB 251 as long as it contains the provision granting eminent domain to private interests.

Farm Bureau’s concerns are limited to the issue of granting eminent domain to private interests. We do not have a position on whether or not carbon dioxide should be marketed as a commodity nor on any particular facility or project that might generate carbon dioxide as a byproduct.

In the latest version of SB 251, as it came out of 2nd House Committee, on p. 27, IC 14-39 is amended by adding a new Article 39. Carbon Dioxide, Ch. 1, Eminent Domain for Transportation of Carbon Dioxide by Pipeline.

Yesterday's Star story included:

Ellspermann said the revision is expected to provide a watchdog role for the IURC. This would address an objection by some senators to the original bill handing the Indiana Department of Natural Resources jurisdiction for carbon dioxide pipelines.
But the latest version of SB 251 now contains the same language that was defeated by the Senate in SB 72 two months ago.

Title 14 is the Department of Natural Resources title in the Indiana Code. The new IC 14-39-1-4 has the carbon dioxide transmission pipeline company applying to DNR for authorization to build the pipeline. Sec. 5 says:

* * * if a carbon dioxide transmission pipeline company files with the department a verified certificate stating the reasons that the designation of confidential information is necessary, the carbon dioxide transmission pipeline company may designate information that it submits in an application to the department, or in subsequent reports, as trade secret or confidential and proprietary information.
Sec. 6 provides:
A certificate of authority issued by the department under this chapter must include at least the following:
(1) A grant of authority to construct and operate a carbon dioxide transmission pipeline as requested in the application.
(2) A grant of authority to use, occupy, and construct pipeline facilities in any designated public right-of-way for the construction and operation of the carbon dioxide transmission pipeline.
(3) A grant of authority to take and acquire possession by eminent domain of any property or interest in property for the construction, maintenance, or operation of a carbon dioxide transmission pipeline in the manner provided for the exercise of the power of eminent domain under sections 7, 8, and 9 of this chapter.
Sec. 9, on pp. 31-32, provides for compensation of the property owner of "125% of the fair market value of the interest in the property acquired, if the right-of-way or easement involves agricultural land" and 150% "if the right-of-way or easement involves a parcel of property occupied by thew owner as a residence." This is new, and was mentioned in yesterday's Star story.

Finally, SB 251, to which the pipeline language was just added, is the bill that was thought to be dead after the continuing nuclear disaster in Japan! See this Feb. 11, 2011 description of the bill. Here is how the Star story began on that date:

Despite strong opposition from environmentalists, senior citizens and consumer groups, an Indiana Senate committee on Thursday endorsed legislation that encourages the construction of coal-fired and nuclear power plants in Indiana and would allow utilities to quickly recover certain costs from customers.
For instance, CWIP for nuclear generating facilities is still a part of the bill, now on 2nd reading in the 2nd House. See SECTION 12 on p. 14 of the current April 15th version.

Posted by Marcia Oddi on Saturday, April 16, 2011
Posted to Indiana Government

Courts - "Is 'plagiarism' in a judicial decision wrong?"

Updating yesterday's ILB entry, Prof. Eugene Volokh, in an interesting entry yesterday, first points to this entry by Bill Poser, who cites the British Columbia high court opinion and writes:

I don't have a definite opinion on this, but my inclination is that the court is wrong. Judges, unlike authors of fiction, are not paid to be original. If one party states the facts or the law clearly and accurately, by all means the court should make use of the work that party's attorneys have already done rather than spending time rephrasing it. My understanding is that this is actually a common practice and that indeed it is not uncommon for the parties to submit draft reasons for decision that the judge may adapt if he or she rules their way. An appellate court is still free to consider whether the decision is logical, consonant with the facts and the law, etc. but adopting the wording of one party does not seem to me to be a good sign that the judge has not fairly considered the case.
Volokh titles his own entry "Judge Copies Most of His Decision from a Party’s Briefs — Why Is That Wrong? and writes:
I think that the trial judge’s actions were improper, and that the appellate court was right to reverse it. But the impropriety mostly has to do with matter other than the ones that lead us to condemn plagiarism in, say, scholarly work.

What’s normally wrong about plagiarism is that the plagiarist wrongly gets credit for creative work (by deceiving the reader about the work’s true authorship), and wrongly denies the true author credit that the true author deserves. But this doesn’t really operate in most judicial opinions. Judges rarely get credit for creativity or originality in their work (with a few exceptions for unusually insightful and original opinions, which will almost never arise from simple copying of a party’s biased presentation of the issue). And lawyers rarely seek credit for such work in their briefs (again, with very few exceptions). They seek credit for winning, and if a judge likes their work so much that he copies it wholesale, they are likely to get what they want, and they can also use the judge’s copying to especially impress their clients.

Rather, the problem, as the B.C. Court of Appeal panel majority understood it, is that a judge is supposed to “independently and impartially considered the law and the evidence and arrived at his own conclusions on the complex issues before him,” and simply adopting hundreds of paragraphs of a party’s papers casts doubt on that.

Volokh then goes on to develop his argument.

ILB: Judge Richard A. Posner, in his 2007 book, The Little Book of Plagiarism (ILB entry here) says at p. 17: "Concealment is at the heart of plagiarism,' and at p. 19:

A judgment of plagiarism requires that the copying, besides being deceitful in the sense of misleading the intended readers, induce reliance by them.
I think this distinction re plagiarism clearly is followed in the two Indiana cases discussed yesterday, Stevens and Keeney.

Posted by Marcia Oddi on Saturday, April 16, 2011
Posted to Courts in general

Ind. Courts - "Toxicology audit finds 10 percent error rate: Attorneys call for Supreme Court to intervene in cases involved in audit, which found 10 percent error rate"

Here is the long list of ILB entries on the state toxicology lab scandal. This new, lengthy story today from the Indianapolis Star's Mark Alesia and Tim Evans reports:

An audit of the State Department of Toxicology revealed 61 false positive marijuana test results from 2007-09 -- the strongest evidence yet that Hoosiers may have been wrongfully convicted because of problems at the lab.

The paper audit of blood and urine results found lab errors in 272 other samples, but auditors added that they "appear to be" positive.

In all, that's 333 lab errors among 3,200 results checked by the auditors -- or 10.4 percent.

The findings prompted two leading Indianapolis defense attorneys, J.J. Paul and John Tompkins, to call on the Indiana Supreme Court to intervene in every case covered by the audit -- and not just because of errors found in the audit.

They said perhaps more troubling was its limited scope. The auditor acknowledged that there was a long list of things that he didn't, or couldn't, check -- things that the attorneys said are required for results to be admissible in court.

"They're using this to legitimize individual tests that they can't legitimize," Paul said of Indiana University, which operates the lab. "This proves every single test in the audit is in question."

Tompkins said the audit reflects quality control failures that call into question the lab's competence in every other aspect of the tests that weren't audited.

"Passing this audit," Tompkins said, "doesn't mean the test was good, scientifically or legally." * * *

Kenneth J. Falk, legal director of the American Civil Liberties Union of Indiana, said any false results -- positive or negative -- are unacceptable and undermine the justice system.

"If we come to accept that tests can be, and often are, incorrect, then no result will ever be unquestioned," Falk said. "So this undercuts the validity of all tests."

IU spokesman [Larry] MacIntyre had a different concern -- the potential for a flood of what he would call frivolous lawsuits.

"The real problem here," he said, "is that the laboratory's past reputation for inaccuracy is harmful to the justice system because it casts a shadow of doubt on this evidence in every single case, and thus invites much litigation that should be unnecessary."

It does not appear that IU spokesman Larry MacIntyre is an attorney.

Posted by Marcia Oddi on Saturday, April 16, 2011
Posted to Indiana Courts

Friday, April 15, 2011

Ind. Courts - Still more on: What about NFP opinions?

On April 11 the ILB posted this entry, asking "Should Appellate Rule 65 be changed, and if so, how?"

The entry also stated: "On behalf of the ISBA Appellate Practice Task Force, I would be happy to collect additional comments and observations of those of you who are attorneys who did not take part in the ISBA survey, or who are not members of the ISBA." Several responses have been received.

This morning, after the ILB post on judicial plagiarism and attorney plagiarism, I received this note:

It is interesting that the Judicial Plagiarism story arises at the same time as the discussion on NFP appellate decisions. If I elect to use the rationale of a NFP decision, and maybe even quote from it, I can not cite to the case by appellate rule, but maybe I have an ethical duty to not plagiarise it? This appears to be a conflict that needs resolved. I fail to see what it so bad about denoting in the citation that it is NFP and therefore, not binding.

Robert J. Bishop
Deputy Prosecuting Attorney
Kosciusko County, Indiana
And IU-Indy Law Prof Joel Schumm tells me:
I've heard other people mention this as well. In the course of research a lawyer finds a really helpful NFP. They want to use the rationale (or even quote some of the language) but cannot cite it because it's NFP. If they use it and don't cite, they commit plagiarism. If they use it and cite it, they violate the Appellate Rules. If they don't use it at all, they are probably failing to make important points that would help their case.

One way around this might be to quote the opinion and drop a footnote: "Appellate Rule 65(D) prohibits counsel from disclosing the source of this quotation." I suspect a law clerk will find and read the NFP opinion. The NFPs have been on Westlaw and Lexis for years.

Posted by Marcia Oddi on Friday, April 15, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Heather Schrock v. Marion Schrock, a 14-page opinion, Judge Brown writes:

Heather Schrock (“Wife”) appeals the trial court's belated order granting in part a motion to correct error by Marion Schrock (“Husband”) and argues that the belated order is void. On cross-appeal, Husband seeks to obtain appellate review of the issues raised in his motion to correct error. For the reasons set forth below, we reverse the trial court's belated order, address Husband's issues on cross-appeal, and reverse in part and remand for further proceedings. * * *

The Indiana Supreme Court's opinions in HomEq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind. 2008), and Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285, 289 (Ind. 2000), discuss the ability of a party to obtain appellate review of the merits of issues raised in a motion to correct error which was deemed denied under certain circumstances.

Trial Rule 53.3(A) provides:

In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed denied. Any appeal shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is deemed denied.

When trial courts purport to grant a motion to correct error belatedly, that is, after the expiration of the thirty-day “deemed denied” deadline in the rule, the Indiana Supreme Court has recognized that issues arise regarding efficient judicial administration and fairness to litigants, including potential “unnecessary, impractical, harsh, and unfair consequences.” HomEq, 883 N.E.2d at 96-97 (quoting Cavinder Elevators, 726 N.E.2d at 289)).

As explained in HomEq, to address these problems, the Court in Cavinder Elevators adopted a two-part rule. [ILB - etc.] * * *

Finding that the trial court's belated order, dated August 25, 2010, was made void by the instant appeal, that order is vacated. On cross-appeal, the order of dissolution is reversed in part, and we remand to determine the effect of the typographical errors in the dissolution order and the amount of any outstanding debt to Eagle, to modify as necessary the amount of the final judgment, and to enter an order and any entries necessary to revise the dissolution order consistent with this opinion and the court's findings on remand.

NFP civil opinions today (4):

Aaron D. Wilson v. Amber N. Wilson (NFP)

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

Dale Brenon v. The Advantage Corp. (NFP)

William A. Pennington, III v. Convergence Receivables (NFP)

NFP criminal opinions today (5):

Thomas Battista v. State of Indiana (NFP)

James Mann v. State of Indiana (NFP)

David Brockman v. State of Indiana (NFP)

Shawn T. Parker v. State of Indiana (NFP)

Lawrence Barrett v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 15, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Still more on: Concerns re SB 159

Re the ILB's two recent entries on SB 159, from April 12th and April 13th, a knowledgable reader has just sent me this note:

Marcia, I am in total agreement with you that the bill would violate Article I, Section 25 of the Constitution. * * * What’s even funnier about the bill is that it only applies to Section 8 rulemaking. So if IDEM decided to adopt a federal rule through the regular rulemaking process, this automatic repeal provision couldn’t even apply.
ILB: Here is Art. 1, Sec. 25:
No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.
And in addition, I think there are separation of powers/unconstitutional delegation of legislative authority issues.

Where is SB 191 right now? Yesterday the Senate concurred in the House amendments, 49-0. So it is now on its way to the Governor.

Posted by Marcia Oddi on Friday, April 15, 2011
Posted to Indiana Government

Ind. Gov't. - "Editorial: Next step for sentencing"; More on sentencing

From the Fort Wayne Journal Gazette today, this thoughtful editorial on the failed sentencing reform bill and what should come next.

Two timely entries in the Sentencing Law blog:

Missouri prosecutors pushing to abolish state's sentencing commission and guidelines - access here.

ACLU of Ohio releases new report assailing Governor's plan to sell state prisons - access here. A quote from the ACLU report:

“Privatizing prisons is seen as a quick remedy for states looking to alleviate budget concerns, but they are often more costly to the state. While our prison system is undeniably bloated, we must find long-term solutions to stop the flow of people into the system, not gamble on a system that could bring more problems than it solves,” said ACLU of Ohio Executive Director Christine Link.
From the NWI Times today, a story by Susan Brown, headed "New court aims to curb repeat offenders." Some quotes:
CROWN POINT | In the works for about nine months, Lake County's newest court will work to reduce the number of offenders who have become court regulars.

"We see some people over and over again," Lake Criminal Court Judge Salvador Vasquez said as he awaited the final go-ahead from the state this week.

That came Thursday with word of certification by the Indiana Judicial Center. The certificate, good for 18 months, allows the court to start up while preparing for full certification.

Though a variety of programs exist to help ease prison inmates back into their communities when they're released, about 67 percent typically become repeat offenders within one to three years, studies say.

But with direct court supervision, assistance with their individualized needs and strong incentives, such as a reduction of time on parole, the risk to re-offend is reduced significantly, Vasquez said.

Lake County's "re-entry court" is modeled on that of Allen County in Fort Wayne, what Vasquez called the pre-eminent such court in the state.

In existence for a decade, the court received high marks when evaluated over a seven-year period ending in 2008.

The study, conducted by the School of Public and Environmental Affairs at Indiana University Purdue University Fort Wayne, found recidivism rates not only were significantly reduced, but also that even those rearrested were more likely to be charged with lesser crimes.

A Pew Center study on recidivism, announced Wednesday, found states spend more than $50 billion a year on corrections. If states could reduce their recidivism rates by just 10 percent, they could save more than $635 million in one year alone.

Here is the link to the new Pew report.

Finally, here is a new article from Indiana Court Times, on evidence-based sentencing practices. A quote:

In Indiana, as well as nationally, there has been a growing acceptance and use of evidence-based practices in sentencing adult and juvenile offenders. The foundation for implementing these practices requires the use of validated, actuarial risk assessment instruments. The term evidence-based practices refers to the use of empirical data derived through scientific research from juvenile and criminal justice systems which identify factors about an offender that provide an empirical assessment of the offender’s likelihood to reoffend and techniques and programs that have been proven effective in reducing such risks. Risk assessment instruments that focus on both risk and need factors can assist in creating proper supervision plans and appropriate service referrals by the supervising agency, including probation, parole, community corrections, problem-solving courts, Court Alcohol & Drug programs, and the Indiana Department of Correction.

Posted by Marcia Oddi on Friday, April 15, 2011
Posted to Indiana Government

Ind. Gov't. - "Plan commission votes against Elkhart County zoning ordinance"

Tim Vandenack of the Elkhart Truth gives a good look today at one county's efforts to overhaul their zoning ordinance, and the effort's failure, at least for now.

Posted by Marcia Oddi on Friday, April 15, 2011
Posted to Indiana Government

Environment - More on: "U.S. moving forward with lake evictions: 2 homes still occupied despite repeated extensions, threats"

The feds continue to have trouble with an eviction at the Dunes National Lakeshore. Updating this ILB entry from Jan. 14, 2011, Teresa Auch Schultz reports today in the Gary Post-Tribune:

A Beverly Shores woman still refuses to move out of her Indiana dunes house, a year after federal prosecutors filed to evict her, according to new court records.

U.S. prosecutors filed Wednesday in the U.S. District Court in Hammond a writ for assistance, asking a federal judge to give the U.S. Marshal’s office permission to remove Deborah Pavel from the house, which is owned by the federal government. * * *

U.S. District Judge Joseph Van Bokkelen ruled in January against Pavel, saying she had to leave. However, according to the writ for assistance, Pavel refuses to leave and ignored a March 6 notice to vacate by April 7.

Posted by Marcia Oddi on Friday, April 15, 2011
Posted to Environment

Ind. Gov't. - "Ex-IURC counsel tells ethics panel he thought he followed the law in seeking job with Duke Energy"

So reports John Russell today in the Indianapolis Star, covering Scott Storms' testimony yesterday before the State Ethics Commission.

(Here is a list of earlier ILB entries quoting stories by John Russell on the Duke scandal. And the IndyStar has now created a special "Duke-IURC scandal" page.)

Here is just a section from today's lengthy story:

The ethics case against Storms hinges in large part on when he applied for the Duke job and began negotiating an offer. The Indiana inspector general's office said Storms applied for the job in April 2010, four months before he disclosed his interest in the job to the state and screened himself from Duke matters.

Investigators pointed to a cover letter, resume and application dated April 20, 2010, in which Storms wrote "to express interest" in the position of senior counsel with Duke Energy Indiana and said he was "uniquely suited" for the job because of his extensive experience in utility regulation.

But Storms said he didn't send the letter at that time. He said that when he told his boss at the IURC, former Chairman David Lott Hardy, that he wanted to apply for the job and screen himself from Duke matters, he was told to forget the whole thing.

"He said it was not an opportune time," Storms said. "I was surprised and disappointed."

Storms said he later talked the matter over with his wife, who encouraged him to apply anyway. He said he filled out the online application on the Duke Energy website and updated his resume and cover letter "to placate my wife and feel better. . . . But I didn't push the 'submit' button."

He said that four months later, when Hardy gave the OK, he did screen himself from Duke matters and submit the application. He said the Duke computer apparently did not update the application date.

But Inspector General Dave Thomas outlined a much different scenario. He said Storms contacted Duke's hiring attorney, Kelley Karn, at least 10 times to talk about the job from March through August. He said Storms had an influential friend at Duke, Michael Reed, president of the company's Indiana operations, who was pushing Storms' candidacy to his superiors at the corporate headquarters in North Carolina.

Thomas showed the commission a raft of emails between Reed, Storms and Hardy, in which the subject of Storms' hiring is brought up numerous times during those months. Many of those emails were first reported last year by The Indianapolis Star.

Posted by Marcia Oddi on Friday, April 15, 2011
Posted to Indiana Government

Ind. Gov't. - Pipeline bill showing signs of rebirth

So reports Ted Evanoff of the Indianapolis Star today in a story headlined "Plan could resurrect CO2 pipeline proposal: Earlier bill to aid coal gasification site by using eminent domain was defeated."

(For background, start with this ILB entry from April 2, 2011. And the "death" of SB 72 is recounted in this long ILB entry from March 19th.)

From today's story:

When it comes to the pipeline, millions of Indiana residents have a stake because almost all of the natural gas produced at Rockport for 30 years would be bought by the Indiana Finance Authority, a state agency. * * *

Senate opposition had less to do with blocking the gasification plant than with disapproval of eminent domain, said Sen. Beverly Gard, R-Greenfield.

"We are looking at improving the language that's in the original bill,'' [Rep. Sue] Ellspermann said. "Whether we can pull this off, we don't know."

Revisions could include larger payments from Denbury for landowners whose property is taken over for the pipeline under eminent domain, Ellspermann said.

The term refers to a legal process government agencies use to take private property from an owner. The agency can then hand the property to a business, once the agency determines the project proposed for the site will benefit the majority of citizens in the community or the state.

Raising the payment on farmland to 125 percent of the appraised value is one proposal being considered, Ellspermann said.

State law already permits eminent domain for a variety of pipelines, such as natural gas, overseen by the Indiana Utility Regulatory Commission. No law specifically allows carbon dioxide pipelines.

Ellspermann said the revision is expected to provide a watchdog role for the IURC. This would address an objection by some senators to the original bill handing the Indiana Department of Natural Resources jurisdiction for carbon dioxide pipelines.

Posted by Marcia Oddi on Friday, April 15, 2011
Posted to Indiana Government

Courts - Judicial plagiarism in British Columbia results in $5-million judgment thrown out

How Appealing has the story, plus a link to the ruling of the BC Court of Appeal here. The Vancouver Sun story begins:

A new trial has been ordered and a $5-million judgment thrown out because B.C. Supreme Court Justice Joel Groves plagiarized most of his ruling. In a staggering decision involving an expensive 30-day trial about a brain-damaged baby, the B.C. Court of Appeal said it is only the fourth time in Canadian history a judge has substantially reproduced all of the submissions of a participating party in a lawsuit as reasons for judgment.
Thanks to IU-Indy Law Prof Joel Schumm, who sent me this reaction:
Fascinating--but would never happen in Indiana. This from a 2002 death penalty case, Stevens v. State:
The defendant claims that he was denied a full, fair and unbiased adjudication of his post-conviction claims when the post-conviction court essentially adopted verbatim the proposed findings of fact and conclusions of law submitted by the State. In Prowell v. State, 741 N.E.2d 704 (Ind. 2000), we acknowledged that a trial court's verbatim adoption of a party's proposed findings may have important practical advantages and we expressly declined to prohibit the practice. Id. at 708-09. We noted, however, that the wholesale adoption of one party's findings results in an "inevitable erosion of the confidence of an appellate court that the findings reflect the considered judgment of the trial court." Id. at 709; see also Wrinkles, 749 N.E.2d at 1188.

The sixty-five pages of findings and conclusions entered by the post-conviction court are for the most part identical to the proposed findings submitted by the State, but we note several differences. For example, the post-conviction court added two sentences to one issue, a couple of paragraphs to another, and corrected some of the misspellings. It is thus evident that the court carefully considered and purposefully used of the individual findings proposed by the State. The extensive findings of fact and conclusions of law addressed all the claims delineated in his petition. While near verbatim reproductions may appropriately justify cautious appellate scrutiny, we decline to hold that the post- conviction court's utilization of the State's proposed findings in the present case constituted a failure to provide the defendant with a full, fair and unbiased adjudication of his post-conviction claims.

The ILB has several entries from years back on judicial plagiarism in the U.S. See this one from Aug. 27, 2004.

[More] I also asked Prof. Schumm: "So different rules in Indiana for counsel and judges? I recall at least one COA decision admonishing lawyer, I don't remember if it changed the outcome." Schumm's response:

You're probably thinking of Keeney? The difference there, I think, is that counsel plagiarized a court opinion and gave no attribution. Arguably judges who adopt findings verbatim should put them in quotes and cite the proposed findings. But the source is pretty easy to figure out in those cases. From Keeney:
The importance of proper attribution cannot be understated. While lawyers and judges regularly borrow reasoning from others, both ethics and the appellate rules require that the source be given credit. Nonetheless, Keeney’s appellate attorney merely transplanted the District Court’s order into her brief as if it were her own work.
Here is the ILB entry on the Sept. 13, 2007 opinion in Keeney v. State. See also this ILB entry from May 12, 2010.

Posted by Marcia Oddi on Friday, April 15, 2011
Posted to Courts in general

Thursday, April 14, 2011

Courts - "Did Blogging Kill the First Amendment?"

Fascinating post from Above the Law by Christopher Danzig. It begins:

Our buddy, the Honorable Alex Kozinski, is on a roll. On Monday, the chief judge of the U.S. Court of Appeals for the Ninth Circuit benchslapped a pair of wealthy, persistently annoying and mildly famous identical twins.

The same day, he gave a lecture at San Francisco’s Golden Gate University School of Law, where he declared the Internet has killed the First Amendment, or at least made it an anachronism. Heavy stuff.

More on what the judge said about the web’s effect on unsuppressable free speech, journalism and scumbag bloggers, after the jump.

Posted by Marcia Oddi on Thursday, April 14, 2011
Posted to Courts in general

Courts - Might some counsel lose all sense of perspective at times, while others don't?

It would seem so, as epitomized via this 3-page Order on Motion to Continue filed April 12, 2011 by Judge Eric F. Melgren of the USDC for Kansas, in the case of Jayhawk Capital Management v. LSB Industries, here set forth in full:

“He who is his own lawyer has a fool for a client” is one of every lawyer’s favorite proverbs. Among the several reasons why this is undoubtedly true, is that lawyers are trained to handle disputes skillfully but without the emotional rancor that will mask the actual parties’ reason and good sense.1 Regrettably, many attorneys lose sight of their role as professionals, and personalize the dispute; converting the parties’ disagreement into a lawyers’ spat. This is unfortunate, and unprofessional, but sadly not uncommon. Before the Court, however, is an uncommon example of this unhappy trend.

This matter is currently set for trial commencing June 14, 2011. Defendants seek a brief continuance, noting that one of their counsel, Bryan Erman, along with his wife, is expecting their first child due on July 3. Given the proposed length of trial and the famous disregard that newborns (especially first-borns) have for such schedules, and given that the trial is scheduled in Kansas City while the new Erman’s arrival is scheduled in Dallas, Defendants move this Court for a continuance. This in itself would not be remarkable, but in reviewing the motion the Court was more than somewhat surprised to read that “Plaintiffs have refused to agree to continue the trial setting and have indicated that they intend to oppose this Motion.”

Well, every party is entitled to file an opposition to a motion, and hoping that perhaps Defendants’ had mis-characterized the vigor of Plaintiffs’ opposition, we have eagerly awaited Plaintiffs defense of its opposition. The Memorandum in Opposition arrived yesterday, and it was, sadly, as advertised.

First, Plaintiffs make a lengthy and spirited argument about when Defendants should have known this would happen, even citing a pretrial conference occurring in early November as a time when Mr. Erman “most certainly” would have known of the due date of his child, and even more astonishingly arguing that “utilizing simple math, the due date for Mr. Erman’s child’s birth would have been known on approximately Oct. 3, or shortly thereafter.” For reasons of good taste which should be (though, apparently, are not) too obvious to explain, the Court declines to accept Plaintiffs’ invitation to speculate on the time of conception of the Ermans’ child.

Further, Plaintiffs assert that there are currently five attorneys from two different firms on Defendants’ signature block. While the Court might be inclined to agree with Plaintiffs that this seems like a plethora of attorneys, it can’t help but note that, entered and active on behalf of Plaintiffs in this case, are also five attorneys, from three different firms; so perhaps Plaintiffs are illequipped to argue that Defendants have too many attorneys.

Finally, Plaintiffs argue that surely Mr. Erman will have sufficient time to make it from the Kansas City trial to the Dallas birth, even helpfully pointing out the number of daily, non-stop flights between the two cities; and in any event complain of the inconvenience of this late requested continuance. Certainly this judge is convinced of the importance of federal court, but he has always tried not to confuse what he does with who he is, nor to distort the priorities of his day job with his life’s role. Counsel are encouraged to order their priorities similarly.

Defendants’ Motion is GRANTED. The Ermans are CONGRATULATED.

IT IS SO ORDERED.

_____
1“ . . . do as adversaries do in law, strive mightily, but eat and drink as friends.” Shakespeare, The Taming of the Shrew, Act 1, Scene 2.

Posted by Marcia Oddi on Thursday, April 14, 2011
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

Diane Werner v. Gregory Werner is a 23-page, 2-1 must-read opinion for those practicing family law. A sample from p. 20 of Judge Crone's majority opinion:

The dissent insists that we should not recognize Mother's waiver of her right to challenge the best interests standard agreed to by the parties and applied by the trial court because, in doing so, we are ignoring the importance a stable home plays in the lives of children. To the contrary, the purpose of the trial court's decision here was to allow enough time to gather sufficient information before entering a final custody determination on less than complete information that could not be altered absent a substantial change in circumstances. The court could have delayed ruling or bifurcated these proceedings. Instead, with the parties consent, the trial court entered an order which allowed these children a period of adjustment rather than making a snap decision as to their best interests. The trial court exercised extreme thoughtfulness and restraint in this regard and, we believe that the trial court's deviation from the general modification standard served the purpose of promoting true long term stability for these children. This is the cornerstone of our statutory law.
Judge Kirsch's dissent:
Were this a case involving the property rights of Diane Werner and Gregory Werner, I would join my colleagues in affirming the trial court's decision on the basis that Diane waived her right to appeal the trial court's ruling by failing to make a timely objection to the trial court's decision to use an improper decisional standard.

It is not such a case.

Rather, the case involves not only the parental rights of the parties, but also the fundamental rights of their children to a stable home. The importance of such stability is the policy that underlies Indiana Code Section 31-17-2-21. To give effect to this policy, our General Assembly directed that Indiana's courts modify their custody decisions only upon a showing of a substantial change in one of the enumerated factors. Because the affected interests of such decisions extend beyond the interests of the parents, parents cannot waive this standard.

The trial court committed clear error in ignoring the express statutory directive. I would reverse its decision and remand for further proceedings.

In Larry T. Bass v. State of Indiana , a 13-page opinion, Judge Vaidik writes:
Larry T. Bass appeals his convictions and aggregate sentence of seven years with two years suspended for Class C felony child molesting and Class C felony attempted child molesting. Bass contends that: (1) the trial court erred by denying his motion for a directed verdict, (2) the State committed prosecutorial misconduct during closing arguments by referring to him as a pervert and explaining why and how child molesters target thirteen-year-old children, and (3) his sentence is inappropriate. We conclude that touching a child’s breasts or genitals is not required to sustain a child molesting conviction under Indiana Code section 35-42-4-3(b). The trial court did not err by denying Bass’s motion for a directed verdict. Further, because Bass has waived his claim of prosecutorial misconduct, he must show fundamental error. There is no fundamental error. Finally, Bass has failed to persuade us that his sentence is inappropriate. We therefore affirm.
In Gloria Benefield v. State of Indiana , a 23-page opinion, Judge Crone writes:
Gloria Benefield presented a document at a job interview showing that she was certified as a Qualified Medication Aide (“QMA”). It was later discovered that she was not QMA certified. Benefield was charged with and convicted of class C felony forgery and with being an habitual offender. She appealed, arguing, inter alia, that jury instruction 6 improperly defined “defraud” and created fundamental error. Another panel of this court concluded that although jury instruction 6 improperly defined “defraud,” it did not rise to the level of fundamental error.
Benefield petitioned for post-conviction relief, which the post-conviction court denied. She appeals, arguing that the post-conviction court erred in finding that her trial counsel did not provide ineffective assistance by not objecting to testimony regarding her knowledge as to whether she was QMA certified or to jury instruction 6. We conclude that trial counsel‟s decision not to object to the testimony was part of an objectively reasonable trial strategy and therefore does not constitute ineffective assistance. In addition, we conclude that the decision on direct appeal that jury instruction 6 did not result in fundamental error does not preclude our consideration as to whether the failure to object to jury instruction 6 created prejudice sufficient to that required for a finding of ineffective assistance of trial counsel. However, we conclude that Benefield fails to carry her burden to establish prejudice. According, we affirm the denial of her petition for post-conviction relief.
NFP civil opinions today (3):

Judith Silverman and Morris Silverman v. Arden Johnson, et al. (NFP)

Leonard J. Laraway v. Cathy A. (Laraway) Fisher (NFP)

Paternity of T.B.; C.B. v. C.K. (NFP)

NFP criminal opinions today (3):

Warren Parks v. State of Indiana (NFP)

Dennis Meadows v. State of Indiana (NFP)

Otis Chandler v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 14, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Sonia Sotomayor may play on congressional softball team this year"

JoanBiskupic just tweeted:

At a House Approps hearing on #SCOTUS budget , Rep. Emerson reveals [Justice] Sonia Sotomayor may play on congressional softball team this year.
Hmm, better be careful. The ILB recalls this story from July 15, 2009, re Congresswoman Debbie Wasserman Schultz - a quote:
Last night in Washington, D.C., during a softball game whose proceeds went to breast cancer, Wasserman Schultz fractured her leg and sprained her ankle while sliding into second base.

A former varsity softball player, the game was Wasserman Schultz's idea.

Photos in this story.

No word on whether Justice Elena Kagan is considering playing also, after the unfortunate brouhaha during her confirmation. Unlikely Justice Scalia will play ...

Posted by Marcia Oddi on Thursday, April 14, 2011
Posted to Courts in general

Ind. Gov't. - "Sentencing proposal based on faulty numbers"

Updating this ILB entry from April 10th, another county prosecutor is weighing in on SB 561, Karen E. Richards, the Allen County prosecutor, whose op-ed piece is published today in the Fort Wayne Journal Gazette. Some quotes:

All 91 Indiana prosecuting attorneys oppose Senate Bill 561, the so-called “sentencing reform bill.” The reasons for our opposition are simple: the statistics used to support the notion that our prison population is skyrocketing are false, and the reductions in sentencing that the bill proposes are soft on crime, and therefore put our communities and citizens at risk.

In 2010, the Council of State Governments, backed by statistics from the Pew Center on the States, told Indiana citizens that the Department of Corrections was beyond capacity and that in 2008 and 2009, the prison population increased at a rate higher than any other state in the nation.

This “crisis” meant that Indiana needed immediately to find a way to reduce the prison population. Thus, SB 561 was born.

SB 561 attempts to reduce the prison population by reducing the sentences for felony drug cases, including drug dealing.

The statistics the Pew Center would have us believe indicate that Indiana’s inmate population was 28,322 on Dec. 31, 2008, and by Dec. 31, 2010, it was 29,818, an increase of 1,496, or 5.3 percent.

In reviewing its research, the center inappropriately used statistics from the Bureau of Justice, which lumped federal and state prisoners together. The real figures for Indiana’s inmate population show a population that remains virtually unchanged! * * *

This is a manufactured crisis based on faulty statistics.

The chief mechanism offered to solve this “crisis” is SB 561, which recommends that Indiana reduce penalties for selling drugs.

This bill not only lessens penalties, but redefines what constitutes dealing. Illegal drugs play a huge role in all criminal activity, and in Allen County, account for 80 percent to 90 percent of all homicides. Dealers who are prosecuted as such are not addicts who are dealing to support their habits, but gun-wielding, violent businessmen who sell poison to our citizens.

They should be punished as severely as possible. For addicts, Allen County has one of the best Drug Court programs in the country, in addition to probation, treatment, work release, etc., all of which are an alternative to prison.

There is much more in the article.

Posted by Marcia Oddi on Thursday, April 14, 2011
Posted to Indiana Government

Ind. Gov't. - "For the average citizen, blink and this could be over"

That is a quote from The Indy Star's Mary Beth Schneider today, reporting on yesterday's House Elections Committee meeting yesterday. More from the long story:

Voters across Indiana are just learning how the proposed new congressional and legislative maps -- unveiled Monday by Republicans and expected to be approved with few or no changes by Senate and House committees this week -- are turning their political identities upside down. * * *

If anyone thinks voters don't care where the lines are drawn, just listen to Robin Olds.

"I've been waiting 10 years for this day," she told the House Elections Committee on Wednesday as lawmakers gave the public its first chance to weigh in on the proposed maps.

Olds, a Democrat who lives on the Far Westside, was among the handful of Marion County voters who in 2001 -- the last time new district maps were drawn -- were put into the 4th Congressional District, which rambles from White County in the north to Lawrence County in the south. Only a smidgen of Marion County was part of the district.

"I felt like I was a forgotten voter," she said.

She thinks that she's a "victim" of redistricting once again. Her home would be in the 5th District, and she expects to be overlooked once again in a district that will be dominated by Hamilton County.

She and others who testified before both the House and Senate election committees urged lawmakers to give the public more time to understand the impact of the new boundaries before lawmakers vote on them.

"For the average citizen, blink and this could be over," said Julia Vaughn, one of the organizers of a group that would like to see the map-drawing eventually taken out of the hands of politicians and given instead to a non-partisan commission.

In fact, the proposed maps have been made public for only two days, but the process is almost over. The Senate committee will vote on them today, and the House committee either today, after it reviews the maps proposed by Democrats, or Friday. The full House and Senate will vote on the maps by April 29, the last day of the session.

[More] A Fort Wayne Journal Gazette editorial today, headed "Don't Rush Crucial Maps," concludes:
The Indiana Citizens Redistricting Commission, a coalition that includes AARP Indiana, Common Cause/Indiana and the League of Women Voters of Indiana, has been serving as a watchdog in the redistricting process, with participation by former Republican and Democratic lawmakers, Libertarians, tea party activists and more. They have suggested that the General Assembly could approve the congressional map before the session’s end to meet its deadline, but wait to approve legislative maps until early in the next session – after the public has had time to study them and make suggestions for improvements.

Instead of pushing through bills to adopt maps made public just four days ago, lawmakers should slow the process and give voters time to ensure all interests – including those of the state’s second-largest city – are fairly served.,"

Posted by Marcia Oddi on Thursday, April 14, 2011
Posted to Indiana Government

Ind. Law - "Newly empowered GOP pushes voter ID"

John Gramlich, Stateline Staff Writer, in a lengthy, comprehensive story today, reports that:

Fresh off commanding electoral victories in November, Republican majorities in many state legislatures want to require voters to show photo identification at the polls, a move Democrats say is cynically designed to help the GOP during the next election cycle. * * *

Democrats claim the measures disenfranchise poor, elderly and minority voters who tend to vote Democratic but may not have appropriate photo ID. Republicans say the laws are necessary to prevent fraud, particularly when important statewide contests — such as the 2008 election for the U.S. Senate in Minnesota — can be decided by just hundreds of votes.

The U.S. Supreme Court upheld Indiana’s photo ID law in 2008
, providing a legal framework for other states to pass their own versions. But while only a few states followed Indiana’s lead after the ruling, the movement is gaining much more momentum now that Republicans have taken control or consolidated their power in dozens of statehouses. * * *

Beyond questions of voter fraud and disenfranchisement, one concern that could slow passage of photo ID laws this year is cost. Even in states where Republicans want to pass the legislation on principle, they would have to find a way to pay for the new rules, which must include the issuance of free photo IDs for those who may not possess them. The Supreme Court has ruled that the free IDs have to be available in order for the laws not to amount to a poll tax.

In two states that have had photo ID laws in place for several years, Georgia and Indiana, the cost of implementation has been $1.6 million and $10 million, respectively, experts in both states recently told Electionline, which, like Stateline, is a publication of the Pew Center on the States.

ILB: Here is the language from the 6-page Electionline report:
In Indiana, the number of free ID cards issued from 2007-2010 has been much higher than in Georgia and has cost the state more. In those four years the state Bureau of Motor Vehicles has issued 771,017 free photo IDs at a total cost of just over $10 million according to Jeremy D. Burton, Help America Vote Act outreach manager with the Indiana Secretary of State’s office.

He added the state used roughly $2.2 million HAVA dollars to educate the public and that other costs associated with the law were not tangible enough to calculate.

Meanwhile, in Tennessee, the Tennesssean has this story today, headed "TN attorney general says voter ID bill is unconstitutional." Some quotes:
Legislation that supporters say will curb election fraud by requiring voters to prove their identity instead violates both Tennessee and the United States' constitutions, Attorney General Robert Cooper said in an opinion released Wednesday.

The problem can be fixed, but only if the state also offers IDs free of charge, he said.

“Without the state also providing the ability to obtain a free photo identification card, (the bill) unduly burdens the right to vote and constitutes a poll tax,” the attorney general said.

Democratic leaders requested the opinion before a vote this morning in which House lawmakers have been expected to approve the measure. The opinion sets up a likely floor fight between Republicans who want to pass the bill and Democrats who want to hold it up until it is fixed.

“I would hope we wouldn’t vote for anything unconstitutional,” House Democratic Leader Craig Fitzhugh said.

More from the story:
The attorney general's office based its opinion on similar laws passed in Georgia and Indiana. Courts struck down Georgia's initial voter law on the ground that it imposed an extra cost on voting, but they upheld one passed in Indiana that called for free IDs to be available at state offices where driver's licenses are issued. Georgia's law was later rewritten to offer the same service.

Posted by Marcia Oddi on Thursday, April 14, 2011
Posted to Indiana Law

Wednesday, April 13, 2011

Ind. Courts - "Husband of Switzerland prosecutor charged with attacking referee at AAU game"

From the Madison Courier, this story reported by Evan Shields begins:

The husband of Switzerland County Prosecutor Monica Hensley was arrested Tuesday and accused of choking a referee at an AAU basketball game.

Robert S. Hensley, 41, of Vevay, was arrested by Madison Police around 7:30 p.m. at E.O. Muncie Elementary School. Hensley faces one charge of battery, a Class A misdemeanor.

According to Madison Police Chief Yancy Denning, the incident occurred after a referee made foul calls on two girls playing in the game. Hensley and another parent went down from the stands and onto the court to argue the call, Denning said.

Denning said the referee tried to get the two parents off the court, and Hensley put the referee in a chokehold.

The referee was taken to King's Daughters' Hospital emergency room to get checked out.

Posted by Marcia Oddi on Wednesday, April 13, 2011
Posted to Indiana Courts

Law - "Livestock Farms Could Be Off Limits To Photos"

Heard this story this morning on NPR's Morning Edition. The intro:

Animal rights activists have secretly filmed the inner workings of livestock farms, which has led to some bad press for the industry. Bills introduced in Florida and Iowa would make photographing animal operations without the owner's permission a felony. Supporters say that would help prevent activists from fraudulently being hired. Opponents argue the bills would prevent current employees from reporting abuse.

Posted by Marcia Oddi on Wednesday, April 13, 2011
Posted to Environment | General Law Related

Ind. Courts - More on: What about NFP opinions?

On April 11 the ILB posted this entry, asking "Should Appellate Rule 65 be changed, and if so, how?"

The entry also stated: "On behalf of the ISBA Appellate Practice Task Force, I would be happy to collect additional comments and observations of those of you who are attorneys who did not take part in the ISBA survey, or who are not members of the ISBA."

The ILB has received this response, along with permission to post it:

Marcia,

I read your recent post regarding ISBA’s poll seeking thoughts on changing the NFP Rule. I strongly believe that the Rule should be changed to mirror Ohio’s current rule.

From June 2001 – August 2008, I was a clerk for one of the judges on the Ohio Court of Appeals, so I was in a position to assess the benefits and disadvantages of having opinions be unpublished both before and after Ohio changed its rule governing the authority of unpublished opinions in 2003. Prior to the modern computer era, there were good reasons for not publishing all opinions and making those that were unpublished uncitable. For example, printing books containing opinions was the only feasible way of making those opinions widely available and there were legitimate reasons to save the costs associated with printing all opinions. Limiting the use of those unpublished decisions made the legal world more fair, as no litigant would have access to authority that another litigant did not have access to. Those reasons no longer apply.

Today, the costs of making “unpublished” decisions widely available is negligible. The Indiana Supreme Court already operates a website that provides both the published and unpublished decisions on a daily basis. Those decisions are available on Westlaw, LexisNexis, and (I presume) other online legal research tools. The fact that these opinions are widely available means that the fundamental unfairness regarding parties’ inability to access unpublished decisions no longer applies.

My experience on the Ohio Court of Appeals both before and after Ohio’s rule change showed that the change in the rule did not affect how judges approach cases. In every case, the judges I’ve had experience with have diligently tried to decide every case on the merits and diligently tried to explain their reasoning in a concise, but comprehensive manner. Whether a particular case was later published did not affect that approach.

A cursory review of Indiana’s unpublished opinions shows that the Indiana Court of Appeals takes the same approach. Their unpublished decisions are not one or two paragraph memoranda decisions – they are multi-page decisions that deal concisely and comprehensively with the legal issues brought before the Court. Although I am on the outside, looking in, I don’t see how a change to App. R. 65(D) would change the diligence with which the Court approaches its work.

Unfortunately, I think the present incarnation of App. R. 65(D) in today’s world does not give that impression. I have heard lawyers express the belief (even if in jest), that the Court does not put the same amount of effort into unpublished decisions as it does published ones. There is no reason that the court needs to give that impression – and it will not if it states that all of its decisions after a certain date (a date that resolves the fairness issue addressed above) are entitled to equal weight as persuasive authority.

If anyone would like to talk with me about my experience and opinions, I would be happy to do so.

Brad A. Catlin | Price Waicukauski & Riley, LLC
Read about the latest developments in Indiana Law:
www.IndianaLawUpdate.com

ILB: For more on the Ohio rule, see the bottom of p. 5 of the Task Force report, "Survey of State Courts’ Treatment of Their Own Not-for-Publication Appellate Opinions."

Posted by Marcia Oddi on Wednesday, April 13, 2011
Posted to Indiana Courts

Ind. Decisions - The Bisard case and the COA decision today in Boston v. State

It might be interesting to look at the parallels and differences between today's opinion in Boston v. State (scroll down to entry immediately below, or click here for ILB summary) and the Bisard case which has generated so much controversy.

Here is the long list of ILB entries referencing IC 9-30-6-6, which is central to both cases.

This version of IC 9-30-6-6 shows both the 2006 version and the 2010 changes.

MORE?

Posted by Marcia Oddi on Wednesday, April 13, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Douglas M. Grimes v. Victoria Crockrom, et al. , a 7-page opinion in an interlocutory appeal, Judge Najam writes:

Douglas Grimes appeals the trial court’s denial of his Verified Motion to Quash Subpoena Duces Tecum in this medical malpractice action. Grimes presents a single issue for our review, namely, whether the trial court erred when it denied his motion and ordered him to produce medical records to Victoria Crockrom without also providing for security for the payment of attorney’s fees Crockrom owes Grimes.

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

In D.G. v. State of Indiana , a 12-page opinion, Judge Barnes concludes:
The trial court erred by not assessing six-year-old A.S.’s competency before allowing her to testify. This error was not harmless. There is sufficient evidence to permit another hearing on the allegations. We reverse and remand.
In Brett Boston v. State of Indiana , a 14-page opinion, Judge Darden writes:
Brett Boston brings this interlocutory appeal from the denial of his motion to suppress the results of his blood alcohol test. We affirm.

ISSUES: 1. Whether the trial court erred in denying Boston's motion to suppress. 2. Whether the trial court erred in retroactively applying recent legislative amendments to the applicable statute in its determination of Boston's claim. * * *

Boston argues that the trial court erred in denying his motion to suppress the results of his blood alcohol test. Specifically, he argues the State failed to satisfy the foundational requirements of the version of Indiana Code section 9-30-6-6 that was in effect at the time of his arrest. We disagree.

1. Statutory Amendment

In relevant part, Indiana Code section 9-30-6-6 governs chemical tests on blood, urine, and other bodily substances for evidence of intoxication. The version of the statute that was in effect at the time of Boston's arrest (“the 2006 version”) differs significantly from the version (“the 2010 version”) that was in effect at the time of the suppression hearing. Boston argues that the trial court improperly applied the 2010 version of the statute retroactively in denying his motion to suppress the blood alcohol test results. * * *

The changes to Indiana Code section 9-30-6-6 are not substantive in nature. Rather, the General Assembly's acts of (1) removing “certified phlebotomist[s]” from the list of persons authorized to perform blood draws, and (2) interjecting that the “authorized person” determination need not be made where the bodily substance sample is “taken at a license hospital,” evince its acknowledgment that blood draws which are performed in state-licensed hospitals observe and embody the “technical adherence” to a physician's directions or to a physician's protocol required by our evidentiary rules for the admission of blood test results. [cites omitted]

Based upon the foregoing, we conclude that the 2010 amendments to Indiana Code 9-30-6-6 were remedial in nature, motivated by strong and compelling reasons aimed at public safety and welfare. As such, we find no abuse of discretion from the trial court's retroactive application of the 2010 amendments and reliance, thereon, in denying Boston's motion to suppress the results of his blood alcohol test. * * *

2. Motion to Suppress

Boston also argues that the trial court erred in denying his motion to suppress the blood test results because the State failed to establish a proper foundation. In light of our discussion above, we cannot agree. * * *

As noted above, we find that our legislature's acts of (1) removing “certified phlebotomist[s]” from the list of persons authorized to perform blood draws, and (2) interjecting that the “authorized person” determination need not be made where the bodily substance sample is “taken at a licensed hospital,” reflect its acknowledgment that blood tests which are performed in state-licensed hospitals employ the “technical adherence” to a physician's directions or to a physician's protocol required by our evidentiary rules for the admission of blood test results.

NFP civil opinions today (3):

Claudette Mee, et al. v. George Albers, M.D., et al. (NFP)

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

Lisa and Nicole Tanasijevic v. Alicia Bookwood (NFP)

NFP criminal opinions today (3):

State of Indiana v. Mary McNeal (NFP)

Michael J. Cable v. State of Indiana (NFP)

Marvin L. Ervin v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 13, 2011
Posted to Ind. App.Ct. Decisions

Law - New Pew Report, this one on recidivism

See the description in Sentencing Law blog.

Posted by Marcia Oddi on Wednesday, April 13, 2011
Posted to General Law Related

Ind. Gov't. - New maps unveiled, little opporunity for public, but would it make a difference anyway?

"Stuck with messy mapmaking" is the headline to an editorial today in the Indianapolis Star. Some quotes:

Once the General Assembly approves the new legislative and congressional maps that were unveiled Monday, Indiana voters, for better or worse, will be stuck with them for 10 years.

Yet, the opportunity for public review and comment on the proposed changes, which are significant on both federal and state levels, is extremely limited. Committee votes could come as early as today. Final votes by the full House and Senate are expected to take place within two weeks. * * *

Political mapmaking under the best of circumstances is messy. And Indiana's current system, which leaves it up to incumbent politicians to decide how districts should be drawn, is far from the best. A more equitable system would leave such decisions to a nonpartisan commission.

Hoosiers are stuck with the current model this time around, but should insist on an overhaul of the system long before redistricting hits again.

Posted by Marcia Oddi on Wednesday, April 13, 2011
Posted to Indiana Government

Courts - "Amendment would raise age limit for Ohio judges to 75"

Jim Siegel reports today in the Columbus Dispatch:

Examining how old is too old to serve on the bench in Ohio, the House passed a proposed constitutional amendment yesterday that would allow judges to run for election through age 75, up from the current limit of 70.

Though opponents argued the bill was unnecessary, the House voted 70-26 to send the bill to the Senate. If approved there, the resolution would go to the November statewide ballot. * * *

The three oldest justices on the Ohio Supreme Court are 65 - Justices Paul E. Pfeifer, Terrence O'Donnell and Judith Ann Lanzinger. Under the current age limit, neither Pfeifer nor Lanzinger could run for another six-year term, because each would turn 70 before their current term is up at the end of 2016.

Of the 721 judges statewide, 37 percent are age 60 or older, according to the Ohio Supreme Court. The average age is 57.

The Ohio Prosecuting Attorneys Association is opposed to increasing the age limit, arguing it has improved judicial quality in Ohio. Executive Director John Murphy said just because life expectancy has increased, that does not mean the mental acuity of a 75-year-old person has improved.

Posted by Marcia Oddi on Wednesday, April 13, 2011
Posted to Courts in general

Courts - "Wisconsin previews 2012 chaos"

Long and interesting story today in Politico on the Wisconsin judicial election.

[More] "Wisconsin Awaits Outcome of Supreme Court Vote" by Monica Davey of the NY Times. A sample:

By Tuesday, Wisconsin’s top election monitors were investigating how more than 14,000 votes had been overlooked for a time in one Republican-leaning county. Democratic leaders in that county, Waukesha, were calling for the resignation of the clerk who had made the error, and she was refusing to go.
From the Milwaukee Journal-Sentinel, a story by Laurel Walker headed "Nickolaus fends off calls for resignation: Waukesha County clerk vows to implement improved practices." A quote:
Nickolaus came into the spotlight last Thursday after she announced in a news conference that on election night she had failed to save on her computer more than 14,000 votes reported from the City of Brookfield, and as a result, issued an unofficial summary report to the media that was wrong.

She corrected the totals during the official canvass. The change meant that incumbent Supreme Court Justice David Prosser had surpassed challenger JoAnne Kloppenburg by about 7,500 votes, reversing the 204-vote lead she held statewide after election day.

Posted by Marcia Oddi on Wednesday, April 13, 2011
Posted to Courts in general

Ind. Gov't. - "Can HB 561 be saved? Should it be? Will it be? In what form?"

In a long ILB entry on April 10th, the ILB noted that SB 561 was in committee in the House, but not scheduled for a hearing at the meeting set for the following day, which was more than likely the committee's last meeting.

Charles Wilson of the AP, along with Tom Davies, had a long story last evening headed "Daniels plan on Ind. sentencing changes seems dead." It begins:

INDIANAPOLIS (AP) — A plan pushed by Republican Gov. Mitch Daniels aimed at reducing Indiana's prison crowding by easing penalties for low-level offenders appears dead in the Legislature after running into stiff opposition from county prosecutors.

Daniels had made revamping of the criminal sentencing laws one of his top priorities for this year's legislative session, but lawmakers handling the bill said Tuesday they hadn't been able to reach a compromise and didn't expect more action before the General Assembly's April 29 adjournment deadline.

Posted by Marcia Oddi on Wednesday, April 13, 2011
Posted to Indiana Government

Ind. Courts - More on "Judge tosses suit over asset forfeitures"

Updating this ILB entry from April 6th, among the items in an April 13th Fort Wayne Journal Gazette "Furthermore" editorial:

A Marion County judge last week dismissed a lawsuit filed against 78 county prosecutors, arguing they violated state law by not turning over assets seized in civil forfeiture cases to the Indiana Common School Fund. While the Indiana General Assembly is considering a bill to clarify the law, the judge seemed to invite the plaintiff to refile the case, noting in his decision that “the merits of the issue at the heart of the matter do not deserve to be ignored.”

The issue is whether law enforcement officials are justified in keeping all assets to cover costs incurred in seizing the assets, rather than turning them to the school fund, as a handful of county prosecutors have done.

“Troubling to this court is the relative lack of any logic or consistency in the assessment of law enforcement costs across the state if not in Marion County,” wrote Judge Timothy Oakes. “Little, if any, logical assessment, much less consistent assessment, appear to enter the prosecutor’s mind as they determine their take for pursuing the forfeiture actions.”

Attorney General Greg Zoeller has sided with the prosecutors and is supporting the bill that would allow them to keep 85 percent of the assets. But the ruling seemingly gives the plaintiff, an Indianapolis attorney filing for all Indiana citizens, the green light to continue his challenge.

Posted by Marcia Oddi on Wednesday, April 13, 2011
Posted to Indiana Courts

Ind. Gov't. - More on: Concerns re SB 159

The ILB has received a note from a reader about yesterday's ILB on SB 159 (scroll down for yesterday's entry, or click here). Here, with permission, is the note, my response, and followups.

Initial email from reader K. Frandsen:

Marcia, I am not familiar with the above bill or its general topic, but the legal debate you mention is more complicated and important than you suggest.

Many of our state agencies lag far behind in updating Indiana regs to reflect advancements in federal law or accepted industry practices. For example, the Ind Utility Regulatory Commission, as do similar agencies in nearly all other states, routinely adopts into Indiana law the National Electric Safety Code with respect to the work of Indiana electric utilities. The current version of 170 IAC 4-1-26 expressly adopts the 2002 edition of the NESC as Indiana law. The problem is the 2002 edition is no longer current; it has long since been replaced by the 2007 edition and that edition will soon be replaced, if it has not already, by the 2010 edition. Which standards should Indiana electric utilities meet? The most recent edition, consistent with standard industry practice, or the seriously outdated 2002 edition, which is still law in this state?

Another example -- the Indiana Board of Accountancy incorporates as applicable to Indiana CPAs certain specified ethical standards and professional requirements as issued by boards and committees of the American Institute of CPAs. But the AICPA revises and updates those standards and requirements a lot more often than our state board can keep up with, Which standards should Indiana CPAs look to for direction? Which govern their conduct? When in conflict, how do they choose between current standards of the profession and the black-letter law of Indiana?

It is not seriously disputed that our agencies may appropriately accept and incorporate into our law the current thinking of the national experts on these topics. So why not allow it to automatically change upon the adoption and effective date of those national directives? In the Internet age, these federal and industry standards are quickly readily available.

Just a thought.

Kent M. Frandsen
PARR RICHEY OBREMSKEY FRANDSEN & PATTERSON
Lebanon, Indiana

My response:
Kent, thanks for the note.

Actually, I am aware of the issues you raise and their importance. I have written a number of ILB entries, for instance, on the Indiana fire and building codes, which are simply specific editions of national, copyrighted documents, incorporated by reference by the state commission.

These incorporated codes, as with those in your examples, are not necessarily the current versions, although the incorporating language is amended periodically by the state commission. And to make it worse, the codes (which become part of our law when incorporated) themselves are not available online, they must be purchased from the national publisher.

The only answer, and I agree that it may not seem adequate, is for the state agencies to update their incorporating language more frequently. Your statements:

So why not allow it to automatically change upon the adoption and effective date of those national directives? In the Internet age, these federal and industry standards are quickly readily available.
are reasonable, they just don't answer the "unconstitutional delegation" problem.

Kent, with your permission, I'd like to post your note and my response. Let me know.

Marcia

Response from K. Frandsen:
Sure; by the way, I've been told by an attorney who acts like he knows that the problem could be fixed with a statutory change and wouldn't require a Constitutional amendment. I don't claim any expertise on that question, but the current situation is not good.
My response:
Thanks Kent

The problem re the Internal Revenue Code version is in fact handled by statute via IC 6-3-1-11, which defines what the Indiana Code means when it references the federal "Internal Revenue Code." As noted earlier, it is amended regularly to reflect the most recent version of the IRC.

The problem was resolved in the Indiana environmental rules years ago by centralizing the definitions of the federal laws and regulations referenced in any of the Indiana rules -- putting them all in one location, such as, in the air rules, into 326 IAC 1-1. See, for instance, 326 IAC 1-1-3, which begins: "Unless otherwise indicated, any references to a provision of the Code of Federal Regulations shall mean the July 1, 2009 edition." Like IC 6-3-1-11, these sections are updated regularly.

Re a constitutional amendment, I don't know that an amendment could be ratified that would permit another entity, such as the U.S. Congress, to directly amend or repeal Indiana laws or rules, without the Indiana General Assembly or state agency in each instance formally acting to accept such change.

Posted by Marcia Oddi on Wednesday, April 13, 2011
Posted to Indiana Government

Tuesday, April 12, 2011

Ind. Gov't. - Concerns re SB 159

ILB thoughts: Here is a bill that, IMHO, is destined, if passed, to spend much time in litigation. Why do I think so?

It is pretty basic law that the General Assembly cannot delegate its legislative authority to, for instance, the federal government. For example, Indiana's tax laws rely on federal laws and regulations. Indiana by statute incorporates the federal regs as of a specific date into Indiana law. But Indiana can not automatically adopt any updates or other revisions the feds may make to the regs, as that would be delegating Indiana legislative authority to the federal government. (In other words, it cannot simply adopt the IRS Code "as it exists now or may be amended in the future.") As noted in this April 11, 2007 ILB entry:

For instance, look at IC 6-3-1-11. This section defines what the Indiana Code means when it references the federal "Internal Revenue Code." The federal law changes nearly every year.

Does a reference in Indiana law to the "Internal Revenue Code" incorporate all the latest changes made by Congress? Yes, but only because the Indiana law is changed each year to reflect the most recent version of the IRS.

For instance, IC 6-3-1-11 currently begins: "(a) The term "Internal Revenue Code" means the Internal Revenue Code of 1986 of the United States as amended and in effect on January 1, 2006." [ILB: and as of this writing it says "2010"] Looking at the history of the section, you will see that it has been amended nearly every year to keep it in sync with the federal version.

So the General Assembly cannot pass a law and give away its constitutional authority to the federal government.

But now look at SB 159. It seems to do just that, on p. 3, (g)(1).

It says if a federal environmental law, rule or regulation is repealed by a subsequent federal legislative action, "then that part of the adopted [Indiana] rule that corresponds to the repealed ... federal law, rule, or regulation is void as of the effective date of the legislative or administrative action repealing or otherwise nullifying the federal law, rule, or regulation."

Posted by Marcia Oddi on Tuesday, April 12, 2011
Posted to Indiana Government

Courts - "US District Court Says Kentucky Bar Can Restrict Attorney Speech"

Stephanie Francis Ward has this concerning report in the ABA Journal blog.

Be sure to read the linked Lexington Herald-Leader story from March 21, 2011. And today's AP story, by Brett Barrouquere.

Posted by Marcia Oddi on Tuesday, April 12, 2011
Posted to Courts in general

Ind. Decisions - Still more on: David Camm motion filed with Court of Appeals

Updating this ILB entry from March 14, 2011, yesterday the Court of Appeals issued the following order:

HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS FOLLOWS:

1. APPELLANT'S VERIFIED MOTION TO STAY PROCEEDINGS IN TRIAL COURT EXCEPT FOR INDEPENDENT, DEFENSE-INITIATED DISCOVERY AND REIMBURSEMENT MOTIONS IS GRANTED IN PART. PURSUANT TO INDIANA APPELLATE RULE 14(H), ALL PROCEEDINGS IN THE TRIAL COURT ARE HEREBY STAYED PENDING RESOLUTION OF THIS INTERLOCUTORY APPEAL.

2. APPELLANT'S REQUEST THAT HE BE ALLOWED TO CONTINUE WITH INDEPENDENT, DEFENSE-INITIATED DISCOVERY AND REIMBURSEMENT MOTIONS IS DENIED.

FOR THE COURT, MARGRET G. ROBB, CHIEF JUDGE
RILEY, BRADFORD, JJ., SHARPNACK, SR.J., CONCUR IN THE GRANT OF THE STAY OF PROCEEDINGS BELOW.
RILEY, J., DISSENTS TO THE DENIAL OF CONTINUED DEFENSE-INITIATED DISCOVERY AND REIMBURSEMENT MOTIONS.

(ORDER REC'D 04/11/11 AT 3:45 P.M.) ENTERED ON 04/12/11 KJ

The Louisville Courier Journal reports here this afternoon:
The Indiana Court of Appeals officially put the third triple-murder trial of former state Trooper David Camm on hold Monday.

Proceedings had been unofficially halted in the Spencer County courtroom of Special Judge Jonathan Dartt since the appeals court agreed last month to review Dartt’s ruling allowing Prosecutor Keith Henderson to remain on the case despite having signed a contract to write a book on it while Camm’s second conviction was still on appeal.

On Monday the appeals court granted Camm’s motion to halt the trial while it considers Dartt’s ruling.

Posted by Marcia Oddi on Tuesday, April 12, 2011
Posted to Indiana Decisions

Ind. Gov't. - "Gun bill advances without exemption for Indy venues"

According to this new story in the IBA, reported by Kathleen McLaughlin, SB 292:

A bill that would allow gun-permit holders to carry their weapons into most public places is on track for approval without a major exemption for the Indiana Convention Center and other city venues.
Its author, Senator Jim Tomes, is quoted as saying: “We gotta realize we’re talking about an entire state here,” when it comes to making exemptions.

Don't miss the third paragraph of the story.

The bill will be heard by the House Public Policy Committee this Wed., April 13 at 8:30 am in Rm. 156-B.

Here is a list of earlier ILB entries on SB 292.

Posted by Marcia Oddi on Tuesday, April 12, 2011
Posted to Indiana Government

Ind. Courts - "Former GOP leader pleads guilty to drinking, driving"

Robert Annis of the Indianapolis Star reports this afternoon in a story that begins:

A contrite Jim Kittle, the former head of both the Indiana Republican Party and the retailer with a furniture store bearing his name, pleaded guilty to a misdemeanor drinking and driving charge this morning.

Kittle, 67, pleaded guilty to a Class C misdemeanor drunk-driving charge and received one-year probation and a 60-day suspended jail sentence. He was also ordered to attend a care program and undergo any recommended treatment.

Here are earlier ILB entries on Mr. Kittle.

Posted by Marcia Oddi on Tuesday, April 12, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 11 NFP)

For publication opinions today (4):

In Phyllis and Michael Klosinski v. Cordry Sweetwater Conservancy District , a 15-page, 2-1 opinion, Judge Barnes concludes:

The Klosinskis were not adversely affected by an action of the District and were not entitled to bring an action against the District, except with respect to the issue that the District concedes. However, even assuming the Klosinskis were adversely affected by the District's implementation of the septic inspection program, the District was not acting outside of its statutory authority when it implemented that program. We conclude that the trial court erred by finding the Klosinskis were adversely affected, and we reverse that determination. We conclude that the trial court properly denied the Klosinskis' request for an injunction regarding the septic inspection program, and we affirm that determination. Affirmed in part and reversed in part.

VAIDIK, J., concurs.
BAKER, J., dissents in part and concurs in part with separate opinion. [that begins, at p. 13 of 15] I agree with the majority's conclusion that the trial court properly issued a general injunction prohibiting the District from establishing or enforcing rules that do not further the purposes that are set forth in the statute. I also agree that the trial court correctly denied the Klosinskis' request for an injunction regarding the septic inspection program. However, for reasons discussed below, I must part ways with my colleagues' conclusion that the Klosinskis lacked standing to challenge the septic inspection program because they were not “aggrieved” parties in accordance with Indiana Code section 14-33-5-24.

In Cassandra Johnson and Jarrett Buse v. Anya E. Wait, et al. , a 16-page opinion, JudgeKirsch writes:
Cassandra Johnson (“Johnson”) and her husband, Jarrett Wayne Buse (“Buse”), appeal from a negative judgment after a jury trial in their medical malpractice action against Erik Jon Wait, M.D. (“Wait”), James R. Miller, M.D. (“Miller”), and St. Mary's Medical Center Welborn (“SMMC”) arising from an undiagnosed bilateral shoulder dislocation and shoulder fracture suffered by Johnson during her hospital stay due to the birth of her child. Johnson raises the following restated issues for our review: I. Whether the trial court erred by giving, over objection, an instruction on contributory negligence that was not supported by the evidence; II. Whether the trial court erred by refusing to give an instruction on res ipsa loquitur; and III. Whether the trial court erred by allowing a defense expert to give certain opinions relating to causation. We affirm.
In Lamar M. Crawford v. State of Indiana , a 15-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that (1) the trial court did not abuse its discretion when it quashed part of Crawford's request for production of documents to a non-party television production company, and (2) the State produced sufficient evidence to prove beyond a reasonable doubt that Crawford committed murder.
In Jessica Borjas v. State of Indiana , a 6-page opinion, Judge Najam concludes:
In sum, we hold that the State presented sufficient evidence that Borjas uttered a written instrument when she signed Hornbeak's name to authenticate the purchases she made using Hornbeak's credit card. Thus, we affirm her convictions for forgery.
NFP civil opinions today (6):

John Grimes v. Tamara Grimes (NFP)

Adoption of J.H.; I.H. v. J.R. & W.R. (NFP)

Martha J. Tichenor v. Daniel Dodson (NFP)

Sieb Corp., Inc., Kurt Siebert, et al. v. Laidig Systems, Inc., Mishawaka Leasing Corp., et al. (NFP)

Term. of Parent-Child Rel. of E.C. & J.V.; J.V. v. IDCS (NFP)

Term. of Parent-Child Rel. of A.G., J.S., & K.S.; G.S. v. IDCS (NFP)

NFP criminal opinions today (5):

Sherrill Essett v. State of Indiana (NFP)

Charlotte A. Hunt v. State of Indiana (NFP)

John Mark Harris v. State of Indiana (NFP)

Bryant Carr v. State of Indiana (NFP)

Brice Webb v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 12, 2011
Posted to Ind. App.Ct. Decisions

Environment - "Looking for policy assistance, legislature turns to IU student"

IU News Room sent out this release this morning. Some quotes:

Indiana University student Liz Baldwin likes to use what she has learned in the classroom for real-world projects. She found an opportunity to do so recently, and the result could be a change in state law that saves money and streamlines the cleanup of polluted industrial and commercial properties.

"I really love getting to do things in real life, and I think there are a lot of students who feel the same way," said Baldwin, who this spring is completing a joint law and public-affairs graduate program in the Maurer School of Law and the School of Public and Environmental Affairs.

Her project dealt with Indiana's Environmental Legal Actions statute, a simple, pragmatic law adopted in the 1990s that encourages property owners to clean up "brownfield" properties by giving them the authority to recover damages from the parties that were responsible for past pollution.

There's just one problem with the law: It doesn't include a statute-of-limitations provision that spells out the deadline for taking legal action. Indiana courts have handed down conflicting rulings about whether actions under the law have been filed on time.

As a result, money that could be spent on environmental cleanups instead goes to court fights over who's responsible. And property owners are reluctant to remediate and redevelop contaminated properties, because they don't know if they can recover costs through the courts. * * *

Baldwin's work resulted from a request by Sen. Beverly Gard, R-Greenfield, who authored the environmental legislation. Looking for a way to fix the statute-of-limitations problem, Gard turned to A. James Barnes, a professor in the Maurer School of Law and the School of Public and Environmental Affairs. Barnes recommended Baldwin for the job.

Baldwin researched the law and court rulings, talked to attorneys who handle environmental cases, and produced a 14-page report that examined several options and recommended steps for improving the statute. Her conclusions went into the drafting of Senate Bill 346, which gives plaintiffs 10 years to sue from the time they start spending money on a cleanup. * * *

Baldwin testified before the Indiana Senate Committee on Energy and Environmental Affairs, explaining the issues when it considered the legislation. The committee approved SB 346 unanimously, and the Senate passed it by a vote of 48-0. It is now before the House and is expected to be considered Wednesday in a hearing by the Environmental Affairs Committee.

Posted by Marcia Oddi on Tuesday, April 12, 2011
Posted to Environment

Ind. Gov't. - "Indiana retailers press for online state sales tax"

Hasan Dudar reports for the AP in a long story:

INDIANAPOLIS (AP) — Indiana's retail lobby urged state lawmakers Monday to pass an online sales tax provision that they said would level the playing field for businesses in the state and raise hundreds of millions of dollars in revenue. But lawmakers gave a lukewarm reception to the proposal likely to spark a backlash from online retailers. * * *

Senate Appropriations Committee Chairman Luke Kenley, R-Noblesville, said he didn't expect to include the online tax into the state budget plan now pending in his committee.

Kenley said the proposal for a state law wouldn't solve the problem because online retailers without physical sites in Indiana still would not collect the sales tax.

"What we need is for all online retailers to remit the sales tax," Kenley said.

He said there also was no sound reason to overturn the state's agreement with Amazon, but that a national solution by Congress was needed, as the number of states that are enforcing the online tax in order to generate revenue has increased over the past few years.

A 2007 deal to get Amazon to open its first warehouse in Indiana came with the promise that Indiana lawmakers wouldn't push for an online sales tax, the Indianapolis Business Journal reported. The state leaders brokering the deal also repealed a state law that required companies with a physical presence, including distribution centers, in the state to collect taxes on products used in Indiana.

The agreement led to the opening of two warehouses in the state, providing close to 1,500 jobs, according to company press releases.

Posted by Marcia Oddi on Tuesday, April 12, 2011
Posted to Indiana Government

Law - "Companies Get Creative to Cut Legal Costs"

Interesting article from Law.com. A sample:

Microsoft, which has an annual legal budget of $130 million, identified "routine and repetitive" legal tasks that in-house lawyers weren't excited about and outsourced them to 80 legal vendors in India who work exclusively for the company. This move did not result in any layoffs but boosted the ability of in-house counsel to research patent conflicts.

"Our own people now are able to spend time on higher value work," Gutierrez said.

Microsoft also launched a preferred provider program with about 50 American attorneys. Microsoft wanted to reduce the legal costs associated with obtaining patents, which previously ran $20,000 per patent, and looked to hire solo practitioners who charged less than mega-firms in metropolitan areas. The company negotiated alternative and fixed fees and has been able to reduce its outside legal fees considerably, Gutierrez said.

Posted by Marcia Oddi on Tuesday, April 12, 2011
Posted to General Law Related

Ind. Courts - "Ex-lawyer admits bilking clients"

Rebecca S. Green of the Fort Wayne Journal Gazette reports:

A former lawyer pleaded guilty Monday morning in Allen County Superior Court to charges of corrupt business influence and theft, admitting to stealing money from his clients.

Daniel E. Serban, 53, will be sentenced in mid-May. He pleaded guilty to two of the four charges against him – Class C felony corrupt business influence and Class D felony theft.

See also this March 29, 2011 ILB entry.

Posted by Marcia Oddi on Tuesday, April 12, 2011
Posted to Indiana Courts

Ind. Law - "Hoosiers are one signature away from being allowed to carry loaded guns while operating a snowmobile or off-road vehicle on private property"

Dan Carden of the NWI Times reports that SEA 154 is on its way to the governor. "Current law requires guns be unloaded while being transported on a snowmobile or off-road vehicle."

Posted by Marcia Oddi on Tuesday, April 12, 2011
Posted to Indiana Law

Monday, April 11, 2011

Ind. Decisions - "Man gets 5 years in prison for driving drunk on moped"

So reports Diana Penner of the Indianapolis Star this afternoon. Some quotes:

A Greenwood man has been sentenced to five years in prison for felony drunken driving, after he was arrested last fall while driving his moped.

Kevin Jennings was sentenced Thursday in Johnson Circuit Court, with the prison term enhanced because he was a habitual offender. * * *

Jennings had two previous convictions for possession of methamphetamine and for drunken driving, according to the prosecutor's office.

His driver's license was suspended at the time of his arrest. A license is not required to operate a motor scooter, but they are considered vehicles for purposes of Indiana's drunken-driving statutes, the prosecutor's office said.

Posted by Marcia Oddi on Monday, April 11, 2011
Posted to Ind. Trial Ct. Decisions

Courts - "Appeals Court Upholds Facebook Settlement" [Updated] With Twins

When $70 million isn't enough ... Reuters is reporting from the 9th Circuit:

SAN FRANCISCO (Reuters) — A federal appeals court ruled on Monday that Cameron and Tyler Winklevoss, the twins who claim that Facebook’s founder, Mark Zuckerberg, stole their idea for the social networking site, cannot back out of their settlement with the company.
[Updated 4/12/11] There are a number of news stories today. This How Appealing entry has links to them, plus a link to the opinion.

Posted by Marcia Oddi on Monday, April 11, 2011
Posted to Courts in general

Ind. Courts - What about NFP opinions?

The Indiana Court of Appeals does not "publish" all of its opinions. Appellate Rule 65(A) sets out the criteria for publication. 65(D) provides that:

Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.
Should Rule 65 be changed, and if so, how? A Task Force of the Appellate Practice Section of the ISBA is currently looking into the issue. One step it took was to poll members of the ISBA on their thoughts about changing the NFP Rule. Another was to research what other states have done.

A copy of the research memo is attached. I helped work on it, learned some new information, and got a better perspective on the issue. Take a look.

I have also had a chance to look at the many well-thought-out comments and observations of those you who participated in the bar survey. On behalf of the Task Force, I would be happy to collect additional comments and observations of those of you who are attorneys who did not take part in the ISBA survey, or who are not members of the ISBA. It would be helpful if you also would indicate whether/how published and NFP Court of Appeals opinions are important to your practice.

For background, see this Jan. 17, 2011 ILB entry.

Posted by Marcia Oddi on Monday, April 11, 2011
Posted to Indiana Courts

Courts - 9th Circuit upholds Justice challenge on Ariz. immigration law [Updated with opinion]

Here is early WaPo story.

[Updated] Longer Reuters story now.

[Updated again]
Here is the opinion.

Posted by Marcia Oddi on Monday, April 11, 2011
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Randall Woodruff, et al. v. Indiana Family & Social Services, a 28-page opinion, Judge Vaidik writes:

Because of conditions at the facility, the Indiana Family and Social Services Administration, Office of Medicaid Policy and Planning, terminated its provider agreement with Legacy Healthcare, Inc., d/b/a New Horizon Developmental Center, which cared for some of the most severely and profoundly mentally retarded and developmentally disabled patients in Indiana, all of whom relied on Medicaid. For the next nine months, however, the Medicaid patients remained at New Horizon with New Horizon paying for their care and services until a receiver was appointed and the residents were finally transferred.

We conclude that once a provider agreement with a long-term care facility such as New Horizon has been voluntarily or involuntarily terminated, FSSA, as the State Medicaid Agency, has the primary responsibility for relocating the Medicaid patients and for ensuring their safe and orderly transfer from the old facility. In addition, FSSA is responsible for the care and services provided to the Medicaid patients during the transfer process. Because New Horizon paid these costs instead of FSSA, New Horizon is entitled to summary judgment on its nearly $4 million quantum meruit claim. We therefore reverse and remand this case.

NFP civil opinions today (2):

Think Tank Software Dev., et al. v. Chester, Inc., et al. (NFP)

Sheila Rudolph, et al. v. Roberta L. Ross, et al. (NFP)

NFP criminal opinions today (2):

Jesse B. Scarsbrook v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Monday, April 11, 2011
Posted to Ind. App.Ct. Decisions

Law - "Unable to Prevent Inmate Cellphone Smuggling, Calif. Ponders Plan to Jam Prison Cellphone Calls"

Martha Nell has this interesting item in the ABA Journal blog.

For background on cellphones in prison, start with this ILB entry from Jan. 4, 2011.

Posted by Marcia Oddi on Monday, April 11, 2011
Posted to General Law Related

Ind. Gov't. - Thoughts on the new Marion County prosecutor

The charge of murder against Bei Bei Shuai is pending. A bail hearing will resume Wednesday. This prosecution has caught many of us by surprise.

A reader has sent the ILB the following appraisal of Terry Curry's first three months as prosecutor. One may or may not agree with all, or any, of it. But it is thought provoking.

I have been surprised and overall disappointed with Terry Curry in his first three months. Granted, he's not become embroiled in any sort of ethical scandal, which was a big part of his campaign, but his decisions in the three most highly publicized cases have shown him to be exceedingly tough and, in some cases, unreasonable.

First, he filed several alcohol-related charges that Brizzi deemed unsupportable in the Bisard case. This was part of Curry's campaign, and it seems he has some legal basis (and considerable public support) for pursuing the matter, which will ultimately be resolved in the appellate courts and not take many additional resources from his office.

Next, he decided to pursue the death penalty against sixty-year-old Thomas Hardy. Hardy killed a cop and may well be deserving of death. But he's sixty and will surely die in prison of natural causes--not lethal injection. Curry will waste hundreds of thousands of dollars in this exercise in futility.

Finally, and most disappointing, he's now pursuing murder charges against a pregnant woman who tried to kill herself. Even conservative medical organizations think this is a very bad idea. His decision might earn him the endorsement of Right to Life next election, but again he will (and already has) wasted a lot of resources. This woman should be receiving psychiatric care, but instead Curry's office is opposing bail and apparently wants her to spend decades in prison.

Curry is a tough guy. He's made that point in the first three month. Let's hope he becomes reasonable in the rest of his term.

Posted by Marcia Oddi on Monday, April 11, 2011
Posted to Indiana Government

Ind. Law - "I don't know that there's anything we can do stop a lot of this," said Lawson, the second-ranking House Democrat. "It's a runaway train."

That is the last line of this lengthy AP story today, via WISH TV News. Here is a sample:

A version of the bill appears likely to reach Daniels, a Republican who riled some conservatives last year when he said that the next president facing an economic crisis "would have to call a truce on the so-called social issues."

Daniels urged legislators to concentrate on matters such as the state budget and changes to the state education system. Spokeswoman Jane Jankowski said Daniels would review the final version of any anti-abortion bill before deciding whether to sign it into law.

"He's laid out his agenda and he's identified what his priorities are," Jankowski said. "He fully realizes that with 150 legislators that there are lots of different priorities among those members."

The House-approved bill would have Indiana join two other states — Nebraska and North Carolina — in banning abortions after the 20th week of pregnancy unless there is a substantial threat to the woman's life or health, according to the Guttmacher Institute, a reproductive-health research organization that supports abortion rights.

Such bans after 20 weeks are direct challenges to the legal status quo, based on Supreme Court rulings that permit abortions up to the point of a fetus' viability — about 24 weeks — which is the current Indiana law.

The Indiana proposal includes requiring that women seeking an abortion be told that human life begins at conception and that a fetus might feel pain at or before 20 weeks. The bill also requires written notice that women undergoing abortions face a greater risk of infertility and breast cancer.

Those provisions anger opponents, who say medical researchers dispute any increased risk of breast cancer and argue that putting into law that life starts at egg fertilization is based on ideology, not science.

"Expecting a doctor to give inaccurate information to a patient is just totally unreasonable and we shouldn't even be asking a physician to do something like that," said Rep. Linda Lawson, D-Hammond.

Another proposed provision would require doctors performing abortions to have admitting privileges in a nearby hospital. Supporters say that would improve patient safety, but opponents argue it is simply meant to further limit access to abortions.

The bill would also require that pregnant women be given an opportunity to view an ultrasound image and hear the fetal heartbeat before an abortion.

Sen. Patricia Miller, R-Indianapolis, said she believed there was considerable support in the Senate for the measure and that she expected the health committee that she leads would advance much of it for approval.

For background, start with this ILB entry from April 1st.

Posted by Marcia Oddi on Monday, April 11, 2011
Posted to Indiana Law

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

Here is the answer to "What did you miss over the weekend from the ILB?

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

It has been a LONG TIME since any new supporter signed on ... Not encouraging.

But thanks much to those who do. Check them out via the upper right-hand column of this page, including the law firm and individual supporters.

From Sunday, April 10, 2011:

Posted by Marcia Oddi on Monday, April 11, 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 4/11/11):

Next week's oral arguments before the Supreme Court (week of 4/18/11):

Thursday, April 21st

Webcasts of Supreme Court oral arguments are available here.



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

Monday, April 11th

Tuesday, April 12th

Wednesday, April 13th

Friday, April 15th

Next week's oral arguments before the Court of Appeals (week of 4/18/11):

Tuesday, April 19th

Wednesday, April 20th

Thursday, April 21st 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, April 11, 2011
Posted to Upcoming Oral Arguments

Sunday, April 10, 2011

Ind. Gov't. - "Pennsylvania legislative payroll is bigger than ever"

Pennsylvania has a full-time legislature. This lengthy story today in the Pittsburgh Tribune-Review, points out some issues:

HARRISBURG — During a time when most Pennsylvanians were forced to live on leaner budgets, the General Assembly's payroll soared 22 percent to $119.5 million, and the number of legislative employees paid at least $100,000 nearly doubled, a Tribune-Review analysis found.

Staffers making triple-figure salaries went from 36 in 2005 to 69 this year, records show. Edward J. Nolan, executive director of the House Appropriations Committee, is the highest-paid staffer at $191,854 a year. That is more money than Gov. Tom Corbett's salary of $177,888 and more than $18,000 above the next highest-paid employee.

"It is what it is," Nolan said.

The Legislature's payroll growth since 2005 was almost double the rate of inflation. It happened while a recession slammed Pennsylvania and the rest of the nation in 2008, and last year the state's unemployment rate hit a 26-year high of 8.8 percent in January, February and April.

"There's no oversight on who gets these raises. They're handed out, I believe, to political cronies," said Slippery Rock resident Mike Homison, 55, a retired auditor for the federal Civil Service Commission. * * *

Pennsylvania pays each of its 253 legislators a base salary of $79,646, plus automatic annual raises tied to the cost of living. The General Assembly is the nation's largest full-time state legislature, with a $300 million annual price tag for taxpayers, and its staff of about 2,650 is one of the largest. * * *

Those who study the Legislature — including four grand juries Corbett empaneled as attorney general during the past three years — say patronage hiring, duplicate caucus operations and illegal use of public employees for political campaigning contribute to the staff size. In a report released in May, one grand jury said no witness "was able to justify such a large number of employees for this body."

"The vast overstaffing problem is linked to the patronage system within the Legislature, which in turn is a symptom of the 'time warp' in which the General Assembly operates," the report said.

What about Indiana? A look at the Indiana Transparency Portal shows the following number of legislative staffers earning over $100,000 per year: 2 in the House, 2 in the Senate, 14 in the Legislative Services Agency.

Page 11 (using PDF page count, or A-7 using "bottom of the page" numbers) of this document, the budget report for the coming biennium, sets out the actual expenditure totals of the Indiana General Assembly for FY 2008-09 and FY 2009-10, plus the estimated expenditures for this FY.

Posted by Marcia Oddi on Sunday, April 10, 2011
Posted to Indiana Government

Courts - "Illinois high court allows nonresidents to transport guns"

Here is the April 7, 2011 opinion of the Illinois Supreme Court in the cases of People v. Holmes. From a brief AP story:

The court ruled unanimously Thursday in the case of an Indiana resident who was arrested in May 2005 with a gun in a closed backseat armrest of his car.

Leonard Holmes was charged with felony aggravated unlawful use of weapon because he lacked a Firearm Owners Identification card and didn't have the gun in a case.

Holmes had a permit to carry a concealed firearm in Indiana, and the court held that Illinois law does not require a FOID card too. It also ruled the armrest served as a case.

Posted by Marcia Oddi on Sunday, April 10, 2011
Posted to Courts in general

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

Updating this January 30, 2011 ILB entry, Sentencing Law Blog had an entry April 9th that began: "This new Wall Street Journal article, headlined 'States Resist Federal Sex-Offender Registry,' discusses states' continued disaffinity for adopting the federal sex offender registry rules enacted through the Adam Walsh Act." It continues with a lengthy quote of the WSJ article, in the event this direct link doesn't work.

Posted by Marcia Oddi on Sunday, April 10, 2011
Posted to Indiana Courts

Ind. Gov't. - More on "Bill would remove legislature from toll road equation"

Updating this ILB entry from April 2nd, the Fort Wayne Journal Gazette has an editorial today headed "Panel sets path toward power grab." It begins:

Whether you supported or opposed the lease of the Indiana Toll Road to a private enterprise, no one can dispute that it was debated publicly and subjected to the vote of 150 elected representatives and senators in the Indiana General Assembly.

Right or wrong, those state legislators made the decision in 2006, then had to answer to voters for it in that fall’s election. State Sen. Tom Wyss and a number of other legislators don’t want to make such a decision again.

In a flagrant move to usurp the balance of power between the executive and legislative branches, the Indiana House Roads and Transportation Committee voted last week to give the governor sole authority to work with private entities to build new toll roads or turn existing roads into toll roads. No legislative debates, no votes by legislators, no need to answer to voters.

Advocates of this power grab present conflicting arguments.

The governor, they say, needs flexibility to move quickly if the state wants to get good deals on toll roads.

Many of those same people have argued the $3.8 billion, 75-year lease of the Indiana Toll Road – the one subject to legislative approval, the one subject to a healthy public debate before a decision was made – was a phenomenally fantastic deal unprecedented in the nation. That one worked great, they say, but the next such road agreement should not be subject to a legislative vote.

Posted by Marcia Oddi on Sunday, April 10, 2011
Posted to Indiana Government

Ind. Gov't. - "Saving prison costs isn't being ‘soft on crime' "

Can HB 561 be saved? Should it be? Will it be? In what form?

"Lawmaker working to give sentencing reform a reprieve" was the heading to this story by Eric Bradner reported last Tuesday, April 5th in the Evansville Courier & Press. Here are some quotes:

At the prodding of the Indiana Prosecuting Attorneys Council, which called the measure soft on crime, legislators there made a series of changes that lengthened sentences for many offenders.

Those changes, the Indiana Department of Correction said, would add more prisoners than they would remove – ultimately undermining the goal of saving money. Therefore, Daniels said he’d veto Senate Bill 561 in its current form.

“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,” he said.

“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.”

Now, Rep. Ralph Foley, R-Martinsville, is trying to find a compromise that works for both the governor’s office and the Senate, where the Indiana Prosecuting Attorneys Council has sway.

Foley plans to propose an amendment this morning when the House Courts and Criminal Code Committee considers the criminal sentencing bill.

The amendment, he said, is the work product of negotiations with all of the players involved, especially the governor’s office and the prosecutors’ group.

According to the General Assembly's website, SB 561 is still in committee in the House (in Judiciary Committee, which Rep. Foley chairs). And although the House committee schedule for next week shows that the Judiciary Committee is meeting tomorrow, Monday, April 11th at 10:30 am, SB 561 is not listed.[1] Whether the Judiciary Committee will meet again is not known.

The Fort Wayne News Sentinel has an editorial today about Foley's proposals ...

And the Muncie Star-Press has a lengthy opinion piece today by the Delaware County Prosecutor Jeffrey Arnold, defending the Association of Indiana Prosecuting Attorneys Inc. Some quotes:

Unfortunately, the original bill was neither comprehensive nor balanced. Nor did it provide any "certain and firm punishment for the worst offender."

In its original form, it was simply soft-on-crime sentence reduction legislation. In Indiana, a person who beats a child to death will serve an average sentence of 5.1 years in prison. Indiana has more prison time reductions than any other state in the nation. * * *

[W]hat appropriately began as a comprehensive systemic review toward comprehensive reform has turned into a budgetary boondoggle in the name of crisis management.

The crisis? Suddenly in 2010, the citizens of Indiana were being told that the Indiana Department of Correction is beyond capacity and climbing at a rate higher than any other state in the nation. Suddenly, there is no time to devote to comprehensive reform as this crisis is so acute the need for a quick fix takes priority over comprehensive reform.

This crisis of an overcrowded DOC was not evident a few short years ago when the administration contracted with California and Arizona to rent some 1,200 beds to those states to help solve their overcrowded conditions. Apparently, Indiana prisons had the space to spare and the deal was hailed as a clever way in which to raise revenue by the administration. Unfortunately, those California and Arizona inmates rioted, and the deal was canceled.

Senate Bill 561 ostensibly packaged as "justice reinvestment," was based upon the Council of State Government's dire predictions that Indiana was going to need to build more prisons now unless we reduced the number of felons going to the Department of Correction and reduce the amount of years they spend there.

The truth is the prison population has remained essentially stable over the last four years. * * *

The original sentencing reform proposal was a threat to public safety. The amendments we have suggested are fair, reasonable, cost effective and most importantly protect the public. Indiana prosecutors will continue to work with and support the lawmakers when they get it right and we will oppose all when they get it wrong. All in the interest of justice.

________

[1] However, two other bills of interest to the ILB, SB 463 - mandatory retirement age for trial court judges, and SJR 9 - constitutional right to hunt and fish ["or engage in the agricultural or commercial production of meat, fish, or poultry"], are listed.

Posted by Marcia Oddi on Sunday, April 10, 2011
Posted to Indiana Government

Environment - "The winds of change may be coming to Northwest Indiana"

Updating this ILB entry from March 27th, see this story today in the NWI Times, reported by Melanie Csepiga, headed "Eagle Creek folks in wind farm talks." Some quotes:

Farm owners in Eagle Creek Township in southernmost Lake County soon could be signing contracts aimed at delivering a $5 billion, 100-megawatt wind farm to the landscape.

Andy Paterson, president and CEO of Michigan Energy Generation, the wind farm development company that has been discussing contracts with local farmers, will meet with Eagle Creek landowners at 7 p.m. Tuesday at the Range Line Community Presbyterian Church, 18095 Clay St., Hebron.

"We hope to start signing on April 12," Paterson said. "Building a wind farm is an elaborate process that starts with signing landowners and collection of wind data on a site. From this point, the process can take two to five years based on numerous other studies and circumstances."

Paterson's firm has some weight behind it. Michigan Energy is partnered with International Power PLC, a London-based independent power-generating company that recently merged with energy behemoth GDF Suez.

Here is a long list of earlier ILB entries re wind turbines.

Posted by Marcia Oddi on Sunday, April 10, 2011
Posted to Environment

Ind. Gov't. - Judge Rosenberg's April 7th Decision in the Charlie White election dispute

Here is Judge Rosenberg's April 7th, 11-page opinion in the Charlie White election lawsuit. Some quotes:

On April 6,201 I the Court heard oral argument. Appearing for Parker was Karen Celestino- Horseman and William Groth, while James Bopp appeared for White in his individual capacity and the Attorney General by deputies Betsy Isenberg and Wayne Radford appeared for the Commissioners and White in their respective official capacities. Having taken the matter under advisement, having reviewed the Record on Appeal and having considered the arguments of legal counsel, the Court now REVERSES the decision of the Indiana Recount Commission to dismiss the Petition for Election Contest and REMANDS this matter to said Commission for further proceedings consistent with this opinion. * * *

II. Legal Discussion: Did the Commission Err In Granting the Motion to Dismiss? * * *

Having alleged facts that constitute a knowing and/or fraudulent failure on the part of White to register to vote in conformity with Indiana election law, Parker has stated a cause of action. It follows that the Recount Commission erred as a matter of law in dismissing his Petition. * * *

Ill. Legal Discussion: What Relief Is Available to Petitioner? * * *

In sum, the absence of a specific statutory authority the strong judicial policy against unnecessary court intervention in election disputes persuades the Court that it would be an abuse of discretion to assume the responsibilities of the Recount Commission.

The Court strongly agrees with Petitioner's observation that it is in the public interest for the instant dispute to be resolved as soon as possible. The court does not believe, however, that the Commission will be dilatory. The Court would note that of the 140 days which have transpired since Parker filed his Petition for Election Contest, this matter pended before the Recount Commission for only 23 days. The court is confident that the Commission will act with similar dispatch in trying this matter. In the event that the proceedings below are unduly delayed, this court would have jurisdiction to insure a speedier disposition.

In its Petition for Judicial Review, Parker prayed that that the Court order the production of the Secretary of State's report. This issue is not ripe for judicial review, however, in that it was not formally raised before the Recount Commission. * * * In the absence of any formal Commission action on Ms. Horseman's request or a showing that the Commission unduly delayed ruling on a Motion to discover the report, there is nothing for this Court to review. * * *

The Court finds that Parker was substantially prejudiced by the Recount Commission's granting of White's Motion to Dismiss, and said action was not in accordance with law. The Court therefore reverses the Commission's ruling and remands this matter to the Indiana Recount Commission for further proceedings consistent with this Opinion, said proceedings to be conducted as expeditiously as possible.

Here are earlier ILB entries referencing "Charlie White", including the March 16th entry that linked to the briefs.

[More] Here is the AP's Charles Wilson's story on the ruling.

Posted by Marcia Oddi on Sunday, April 10, 2011
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending April 8 2011

Here is the Clerk's transfer list for the week ending April 8, 2011. It is three pages (and 37 cases) long.

Four petitions to transfer were granted:

__________

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, April 10, 2011
Posted to Indiana Transfer Lists

Ind. Decisions - Puppy mill case appears to be heating up

Here is an order of the Supreme Court, filed April 7, 2011, headed State of Indiana ex rel Ind. State Dept of Revenue v. Indiana Tax Court and the Hon. Martha Blood Wentworth. It tells us that the five justices denied the State's petition for a permanent writ of mandamus and prohibition. And it tells us nothing more.

The only clues are in the docket numbers, which lead to the case GARWOOD, VIRGINIA, ET AL. v. INDIANA DEPT. OF STATE REVENUE in the Tax Court, and STATE OF INDIANA EX REL. DEPT. OF REV. v. INDIANA TAX COURT in the Supreme Court. I've downloaded the two dockets:

Recall the Dec. 22, 2010 opinion by Judge Fisher in the Garwood case - here is the ILB summary. The issue was a motion to dismiss the Garwood's challenge to "the validity of the jeopardy tax assessments with both the Department and this Court." Judge Fisher denied the motion to dismiss.

The most recent ILB entry on the case came three days later, on Dec. 25, 2010.

Here are some interesting entries in the Tax Court docket:

1/14/11
RESPONDENT, BY COUNSEL, HAS MOVED FOR CERTIFICATION OF
APPEAL OF INTERLOCUTORY ORDER AND FOR STAY PENDING APPEAL.
THE COURT, BEING DULY ADVISED IN THE PREMISES, NOW FINDS THAT
RESPONDENT'S MOTION SHOULD BE DENIED.
THOMAS G. FISHER, JUDGE

2/08/11
COMES NOW THE RESPONDENT, THE INDIANA DEPARTMENT OF STATE
REVENUE (DEPARTMENT), AND FILES A MOTION TO RECONSIDER (MOTION).
IN ITS MOTION, THE DEPARTMENT REQUESTS THAT THE COURT VACATE
ITS DENIAL OF THE DEPARTMENT'S MOTION TO DISMISS. SEE GARWOOD
V. IND. DEP'T OF STATE REVENUE, 939 N.E. 2D 1150(IND. TAX CT.
2010). THE COURT, BEING DULY ADVISED IN THE PREMISES, NOW
DENIES THE DEPARTMENT'S MOTION AND REAFFIRMS THAT IT STANDS BY
ITS DECEMBER 21, 2010 ORDER DENYING THE DEPARTMENT'S MOTION
TO DISMISS IN ITS ENTIRETY.
MARTHA BLOOD WENTWORTH, JUDGE

3/03/11
AS AN INITIAL MATTER, THE COURT NOTES THE INCREASINGLY
INFLAMMATORY RHETORIC BY THE PARTIES IN THIS CAUSE. THE COURT
EXPECTS THIS LACK OF CIVILITY AND DECORUM TO CEASE IN ALL FUTURE
PRESENTATIONS TO AND BEFORE THE COURT.

THE COURT, HAVING CONSIDERED PETITIONER'S MOTION FOR SUMMARY
JUDGMENT AND RESPONDENT'S MOTION TO STRIKE AND ALL SUBSEQUENT
RESPONSES RELATED THERETO, NOW SETS THEM FOR HEARING.
ACCORDINGLY, A HEARING WILL BE HELD THURSDAY, THE 31ST DAY
OF MARCH 2011 AT 11:00 A.M. EST IN ROOM 307 ADMINISTRATION
BUILDING, 1 N.W. MARTIN LUTHER KING, JR. BOULEVARD, EVANSVILLE,
INDIANA.
MARTHA BLOOD WENTWORTH, JUDGE

3/18/11
THE RESPONDENT, BY COUNSEL, FILED A MOTION TO STAY AND A
MOTION TO CONSOLIDATE SUMMARY JUDGMENT PROCEEDINGS. THE COURT,
BEING DULY ADVISED IN THE PREMISES, ISSUES THE FOLLOWING ORDER:
5. THE COURT DENIES THE RESPONDENT'S MOTION TO STAY
PROCEEDINGS ON SUMMARY JUDGMENT MOTIONS, MOTIONS TO STRIKE, AND
ALL RELATED SUBSEQUENT MOTIONS.
6. THIS CASE WILL NOT BE SET FOR TRIAL UNTIL THIS COURT
ISSUES ITS DECISION ON THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT
7. THE COURT GRANTS THE MOTION TO CONSOLIDATE THE PARTIES'
MOTIONS FOR SUMMARY JUDGMENT.
8. THE MARCH 31, 2011, HEARING DATE IS CONTINUED TO FRIDAY,
THE 8TH DAY OF APRIL, 2011 AT 11:00 EDT IN ROOM 307 ADMINISTRATION
BUILDING, 1 N.W. MARTIN LUTHER KING, JR. BOULEVARD, EVANSVILLE,
INDIANA.
MARTHA BLOOD WENTWORTH, JUDGE

3/30/11
THE COURT, PURSUANT TO RESPONDENT'S MOTION TO CLARIFY HEARING
DATE, NOW RESCHEDULES THE ORAL ARGUMENT PREVIOUSLY SCHEDULED
FOR APRIL 8, 2011. SAID ORAL ARGUMENT WILL NOW BE HELD WEDNESDAY,
THE 4TH DAY OF MAY, 2011 AT 11:00 A.M. EDT IN ROOM 307
ADMINISTRATION BUILDING, 1 N.W. MARTIN LUTHER KING, JR.
BOULEVARD, EVANSVILLE, INDIANA.
MARTHA BLOOD WENTWORTH, JUDGE

Posted by Marcia Oddi on Sunday, April 10, 2011
Posted to Indiana Decisions

Friday, April 08, 2011

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

For publication opinions today (2):

In Samuel D. Raisor, et al. v. Edward O. Carter, et al. , a 16-page opinion, Judge Crone writes:

In this case, we examine the procedural rules governing the time limitations for filing a complaint and amending it to substitute a defendant. * * *

The Raisors now appeal, claiming that the trial court erred in concluding that their action was barred by the statute of limitations and the trial rule governing amended complaints. They also assert that the trial court abused its discretion in denying their motion for an extension of the notice period. We agree with both assertions and reverse and remand for further proceedings consistent with this decision. * * *

Notwithstanding our conclusion that the Raisors’ amended complaint was not barred by Trial Rule 15(C) and the two-year statute of limitations, we further conclude that any neglect on their part was excusable based on their reliance on public records and the insurer’s correspondence. As such, they should have been afforded the protection of the equitable safety net found in Trial Rule 6(B). In sum, we reverse and remand for proceedings consistent with this decision.

Gerald W. Sandefur v. State of Indiana

NFP civil opinions today (1):

Dana Birdin v. Barbara Blakemore (NFP)

NFP criminal opinions today (2):

Mark Gregory v. State of Indiana (NFP)

Joseph Dixon v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 08, 2011
Posted to Ind. App.Ct. Decisions

Thursday, April 07, 2011

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

Note: The ILB has added links to the references cited in the concurring opinion.

In U.S. v. Taylor (ND Ind., Moody), a 21-page opinion, Judge Posner writes:

The defendant was charged with violating 18 U.S.C. § 2422(b), which provides that anyone who, “using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States[,] knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.” He was convicted by a jury and sentenced to the statutory minimum of 10 years in prison. The appeal requires us to construe the statutory term “sexual activity”—surprisingly an issue on which there is very little law. * * *

To repeat our basic point: if “sexual activity” and “sexual act” are synonymous in Title 18, as they appear to be, then “sexual activity” requires contact because “sexual act,” we know, does. We cannot be certain that they are synonyms. * * *

Congress will have to define “sexual activity” more broadly than “sexual act” if it wants to bring the kind of behavior engaged in by the defendant in this case within the prohibition of section 2422(b) via the fondling and child-solicitation offenses found in the Indiana criminal code, when the defendant neither made nor, so far as appears, attempted or intended physical contact with the victim. In the meantime, however, assuming the defendant’s conception of the breadth of the Indiana statutes is correct, our interpretation of the federal statute will not allow the likes of the defendant to elude just punishment. For his more serious Indiana offense (child solicitation involving use of the Internet, which Indiana law treats as an aggravating circumstance), he could be sentenced to eight years in prison by an Indiana court. See Ind. Code §§ 35-42-4-6(b)(3), 35-50-2- 6(a).

The judgment is reversed with instructions to enter a judgment of acquittal. REVERSED AND REMANDED.

MANION, Circuit Judge, concurring. The court has presented a thorough comparative analysis of federal law and precedent to conclude that “sexual activity” and “sexual act” mean the same thing—under either label, any such act that does not involve physical contact between two people is excluded. I would not go so far and equate the term “sexual activity” with “sexual act.” Sexual activity is a broader term that includes things sexual that do not involve the actual physical encounter.

I do, however, agree that there are serious problems with this case: I do not believe that Jeffrey P. Taylor could be successfully prosecuted for either of the Indiana crimes that the government alleged he committed, and for that reason, I respectfully concur with the court’s judgment. * * *

It bears noting one final reason for giving the solicitation statute a limited reading. When this statute was passed in 1984, Taylor’s conduct was unimaginable. While law constantly trails crime, in the context of sexual behavior and technology the problem is particularly clear—the old laws will not do. The legislature has to specifically address this lamentable behavior and determine what the law truly proscribes. Under our current laws, with the advent and prevalence of “sexting” and virtual sexual behavior, many, many citizens are engaging in behavior that could make them felons. See Jordan J. Szymialis, Sexting: A Response To Prosecuting Those Growing Up with a Growing Trend, 44 Ind. L. Rev. 301 (2010) (a thorough article surveying the problem and offering suggestions for the legislature).[8] It is not enough to let the courts figure it out and to try to see if old definitions fit this new and troubling behavior.

In sum, although Taylor’s conduct was inappropriate and extremely troubling, I do not believe it would constitute a crime under either of the Indiana statutes listed in the indictment. For that reason, I concur with the court’s judgment.
____________________
[8] See also Terri Day, The New Digital Dating Behavior—Sexting, 33 Hastings Comm. & Ent. L. J. 69 (2010); Robin Fretwell Wilson, Sex Play in Virtual Worlds, 66 Wash. & Lee L. Rev. 1127 (2009) (outlining how pedophiles use virtual worlds to solicit children, and the rise of virtual sex); Federal Trade Commission Report to Congress, Virtual Worlds and Kids: Mapping the Risks, 2009 WL 4755418 (F.T.C.) (giving recommendations to Congress on how to combat the threat to children in virtual worlds).

Posted by Marcia Oddi on Thursday, April 07, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Carol Cutter, et al. v. Geneva Herbst, et al. , a 20-page, 2-1 opinion, Judge Riley concludes:

Based on the foregoing, we conclude that the trial court properly calculated proportional damages in the amount of $750,000 payable by the Fund to the Estate for the health care providers' medical malpractice. Affirmed.
BROWN, J., concurs.
ROBB, C.J., dissents with separate opinion. [that concludes] As I explained in greater detail in my dissent from the denial of rehearing in Indiana Dep't of Ins. v. Everhart, 939 N.E.2d 1106 (Ind. Ct. App. 2010), I believe the supreme court in Mayhue adopted the Restatement approach in which damages are assessed for the increased risk of harm for only those cases in which proximate cause for the ultimate injury could not otherwise be proven because the patient already had a greater than 50% chance of that injury occurring even in the absence of negligence. Where the patient's chance of survival is greater than 50% absent the negligence, however, traditional tort principles adequately address the injury and applying the Restatement approach is unnecessary. Because the trial court determined, based upon the expert testimony, that Herbst's chance of survival absent medical negligence was 50%, I do not believe using the Restatement measure of damages is appropriate in this case. Thus, I would remand to the trial court for a recalculation.
NFP civil opinions today (0):

NFP criminal opinions today (5):

Jacob M. Jones v. State of Indiana (NFP)

Stephen Harvey v. State of Indiana (NFP)

Brian Redd v. State of Indiana (NFP)

Michael L. Yates v. State of Indiana (NFP)

Joseph Munden v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 07, 2011
Posted to Ind. App.Ct. Decisions

Wednesday, April 06, 2011

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

For publication opinions today (2):

In Gariup Construction Co. v. Carras-Szany-Kuhn & Associates, et al. , a 23-page opinion, Judge Vaidik writes:

An unsuccessful bidder on a public construction project brought an action under the Indiana Antitrust Act against the architect and the successful bidder, two nongovernmental entities, alleging that they colluded to restrict bidding. The trial court granted summary judgment in favor of the architect and the successful bidder and denied the unsuccessful bidder's partial summary judgment motion. The unsuccessful bidder now contends that the trial court erred by doing so because: (1) its claim was properly brought under Indiana Code section 24-1-2-3 of the Indiana Antitrust Act as a matter of law, even where it did not allege that the governmental entity was a party to the collusion and (2) genuine issues of material fact exist as to the collusion between the architect and the successful bidder. We conclude that the unsuccessful bidder's claim was properly brought under Section 24-1-2-3 of the Indiana Antitrust Act. We further conclude, however, that the designated evidence presents no genuine issue of material fact from which a factfinder could reasonably infer that the architect and successful bidder colluded to restrict bidding. Finally, we decline to conclude that the architect and successful bidder are entitled to appellate attorneys' fees. We affirm the trial court.
In Larry D. Mitchell v. State of Indiana , a 10-page opinion involving a pro se appellant, Judge Vaidik writes:
Larry D. Mitchell appeals the denial of his petition for post-conviction relief. Mitchell was convicted following a jury trial of felony murder, robbery, and related offenses. His convictions and sentence were affirmed on direct appeal. He seeks post-conviction relief raising several claims of ineffective assistance by trial and appellate counsel. However, Mitchell failed to offer the original trial transcript into evidence at his post-conviction hearing, and despite our newly-amended Evidence Rule 201(b)(5) allowing judicial notice of state court records, he did not ask the post-conviction court to take judicial notice of the original trial transcript. He also did not introduce any other documentary evidence or witness testimony. We conclude that the post-conviction court did not err in finding that Mitchell failed to sustain his burden of proof on his ineffective assistance claims. We affirm.
NFP civil opinions today (1):

First Consumer Credit, Inc. v. Sho-Pro of Indiana, Inc. (NFP)

NFP criminal opinions today (1):

Larry Pryor v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 06, 2011
Posted to Ind. App.Ct. Decisions

Courts - Wisconsin Supreme Court election caught up in politics

Larry Sandler and Patrick Marley of the Milwaukee Journal Sentinel report this morning kin a lengthy and interesting story, under the headline: "Supreme Court race still too close to call, Prosser has narrow lead."

Posted by Marcia Oddi on Wednesday, April 06, 2011
Posted to Courts in general

Ind. Gov't. - More on "No degree, little experience pay off big "

Updating yesterday's entry, a column by Daniel Brice in the Milwaulkee Journal Sentinel now reports:

Brian Deschane - the 27-year-old son of a prominent lobbyist - was demoted on Tuesday following a public uproar over his appointment to a cushy job earning $81,500 per year working in Gov. Scott Walker's administration.
But the real story may be in the paragraphs that follow, which begin:
But check out the two candidates Deschane beat out to get the position as head of environmental and regulatory affairs in the state Department of Commerce:

Posted by Marcia Oddi on Wednesday, April 06, 2011
Posted to Indiana Government

Ind. Courts - "Judge tosses suit over asset forfeitures"

The ILB has a long list of entries on asset forfeitures. The issue has been raised in questions about the Delaware County prosecutor's use of the process, in an AG's opinion re the common school fund, in distinctions between the federal and state process, in a lawsuit against many of the state's county prosecutors, in legislation this year to clarify the law re use of forfeited fund, and perhaps more.

Yesterday, according to a report in the Indianapolis Star:

A Marion County judge dismissed a lawsuit against 78 county prosecutors Tuesday, as the state legislature continues its effort to clarify the law that sparked the suit.

Roberts & Bishop, an Indianapolis law firm, sued the prosecutors for not turning over assets seized from criminals to the Common School Fund, which finances school construction or technology projects and charter schools. Indiana forfeiture law says prosecutors must give money seized from suspected criminals to that fund but also says they can keep enough to reimburse law enforcement costs.

Most prosecutors have typically kept all the money. The case, unsealed in November, sought to clarify just how much they are legally allowed to keep.

Roberts & Bishop attorney Paul Ogden says he plans to appeal or amend the case.

The General Assembly is currently working on clarifying the state's forfeiture law. Senate Bill 215, which has passed the Senate and is on its way to the House floor, would allow prosecutors and police to keep 85 percent of the money and divert the rest to education uses.

Attorney General Greg Zoeller, whose office represented the prosecutors in the suit, said he is "pleased this meritless case was dismissed."

Here is a copy of the opinion. Here are the statements of the AG and Mr. Ogden.

Posted by Marcia Oddi on Wednesday, April 06, 2011
Posted to Ind. Trial Ct. Decisions

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

Updating this ILB entry from Feb. 20th, the headline to Kevin Allen's South Bend Tribune story today is "Indiana House passes bill to bar employers from tracking guns on property." Some quotes:

Last year, the Indiana General Assembly approved a bill that ensures workers can keep guns in their vehicles while parked on an employer's property.

This year, the legislature has passed a measure that builds on that by prohibiting employers from asking their workers about any firearms they might be storing in their vehicles.

The state House of Representatives today voted 80-17 in favor of Senate Bill 411. Its next destination is Gov. Mitch Daniels' desk to be signed into law. * * *

George Raymond, vice president of human resources and labor relations for the Indiana Chamber of Commerce, told The Tribune in January that some employers are concerned about having guns on their properties and want to understand who has them and where they are.

The Chamber opposed the "parking lot" bill last year, but didn't invest much time or many resources in fighting S.B. 411 this year.

Check the links in the Feb. 20th ILB entry to see the status of other pending gun legislation.

Posted by Marcia Oddi on Wednesday, April 06, 2011
Posted to Indiana Law

Courts - "Two executions blocked over lawyers’ role"

"In each case, the claim is that the defense lawyer failed to provide an effective professional performance in a post-conviction proceeding."

That from this post last evening by Lyle Denniston of SCOTUSblog. It begins:

The Supreme Court, delaying scheduled executions in Arizona and Texas on Monday night and Tuesday, has put itself in a position to take on an issue that has lingered unresolved for two decades: whether there is a constitutonal right to a lawyer performing effectively in a new challenge started after a conviction has become final.

The Court has ruled previously that the right to a lawyer applies in several stages of a criminal case, including the first appeal after a guilty verdict is in, and it has ruled that the right includes a guarantee that the lawyer will have done an adequate job. But the Court generally has refused to allow such a right in what is called a “post-conviction” challenge, often pursued under a habeas law once the first round of appeals is over and the conviction has become final.

However, it has left some room to recognize such a right, and the new cases seek to take advantage of that.

Posted by Marcia Oddi on Wednesday, April 06, 2011
Posted to Courts in general

Tuesday, April 05, 2011

Ind. Courts - "Friend: Woman who tried suicide cried as baby died"

Charles Wilson of the AP filed this story this evening on the Shuai hearing that took place today and may continue tomorrow. This version of the story is from the Beaumont Texas Enterprise. The long story concludes:

Some attorneys argue that prosecuting Shuai for a suicide attempt is akin to prosecuting her for severe depression.

"If a woman can be criminally prosecuted for those acts or omissions (or medical conditions) that pose a threat to her health while pregnant, then the state's control over her life would be limitless: Virtually everything a pregnant woman does and does not do has an impact on the embryo or fetus growing inside her," the ACLU argued in its brief.

Lawyers also argue prosecuting women like Shuai is unconstitutional because pregnant women would be treated differently from anyone else, including other women who aren't pregnant. They also argue that feticide laws are clearly meant to protect pregnant women from attack, not prosecute them, and cite cases in which charges were dropped against pregnant women who shot themselves in the stomach.

Pregnant women might even decide to have abortions rather than risk prosecution, attorneys write in the briefs.

"If Ms. Shuai had terminated her pregnancy, she would not be subject to this prosecution," attorneys Pence and Katherine Jack argued in a court brief.

Posted by Marcia Oddi on Tuesday, April 05, 2011
Posted to Indiana Courts

Ind. Decisions - "Federal Appeals court revives doctors' lawsuit against coroner"

Jon Murray has a story up now on the IndyStar site on today's 7th Circuit decision in Radentz, et al. v. Marion County (ILB summary here).

Posted by Marcia Oddi on Tuesday, April 05, 2011
Posted to Ind. (7th Cir.) Decisions

Courts - Still more on "Court leaves in place Ariz. school tax break "

Updating yesterday's entry, this WSJ Law Blog entry today by Ashby Jones is headed "In Tax-Credit Case, High Court Sidesteps Constitutional Issue." A sample:

The upshot: the Court upheld an Arizona tax-credit program that offers a dollar-for-dollar reduction of state income tax payments to organizations that support religious schools. The ruling could open the door to the expansion of such programs nationwide.

In an opinion penned by Justice Anthony Kennedy, the justices ruled that Arizona taxpayers have no standing to challenge the state’s tax-credit program on grounds that it violates the First Amendment prohibition of government “establishment of religion.” The decision effectively overruled decades of precedent permitting lawsuits against government programs that subsidize religious institutions through tax incentives.

“Every state that is considering a tax-credit program can rest easy,” said Robert Enlow, president of the Foundation for Educational Choice, a group which favors public subsidies for private schools.

Posted by Marcia Oddi on Tuesday, April 05, 2011
Posted to Courts in general

Ind. Courts - Still more on "Charges in death of fetus should be dropped, experts say"

Updating the entry from this morning, Carrie Ritchie of the Indianapolis Star is reporting on this afternoon's hearing. Some quotes:

An Indianapolis woman accused of murdering her newborn baby through her own suicide attempt is asking a judge today to let her bond out of jail.

People accused of murder aren’t allowed bond, but 34-year-old Bei Bei Shuai is not a flight risk and is not a danger to others, her attorney argued. Attorney Linda Pence also claims the charges on which Shuai is being held aren’t valid.

Pence has filed a motion to dismiss the murder and attempted feticide charges Shuai faces.

She said the charges are not only unwarranted, but they could prevent other troubled mothers from seeking the help they need.

"The charges are outrageous," Pence said last month. "This is an abusive prosecution."

Pence is currently arguing her case before Marion Superior Court Judge Sheila Carlisle. Witnesses will testify throughout the hearing, which is expected to last into the afternoon.

Carlisle could make a ruling today or take Pence’s request under advisement.

Prosecutors argued during opening statements this morning that Shuai left a suicide note and intended to kill herself and her unborn child, which constitutes murder.

But Pence said Shuai’s intent to was to kill herself, and that she later sought help to try to save the baby. * * *

The Marion County prosecutor’s office filed charges against Shuai last month, and she has been in jail ever since.

Several medical groups also are protesting the charges.

Posted by Marcia Oddi on Tuesday, April 05, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

Adoption of O.M.; J.M. v. Q.D. (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, April 05, 2011
Posted to Ind. App.Ct. Decisions

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

Updating this March 31st ILB entry, Indy6 News had a story last evening by Joanna Massee on the progress of the review. Some quotes:

An audit of the lab's marijuana tests found an 8.2 percent error rate, said Scott Newman, a former Marion County prosecutor who was hired by the Indiana University School of Medicine to oversee the audit.

Newman said auditors are evaluating cocaine tests and will next focus on alcohol.

The audit is costing the department $150,000, while further testing will likely cost $250,000, Newman said.

Newman is sending letters to prosecutors and defense attorneys who worked on cases that were found to have data errors.

Defense attorney Andrew Maternowski received a letter last week about a Johnson County case.

"If these results are inaccurate, there may be a person who served some jail time based on what amounts to false evidence," Maternowski said. "Our entire Constitution is designed to protect your freedom and your liberty, and when we're convicting people based on unreliable evidence, that's a big problem."

Maternowski and other legal experts have also questioned the complicated analysis concerning errors with lab results.

"I think if I were a chemist, it would tell me a lot, but I'm not," Maternowski.

David Hennessy, a member of the Indiana Public Defender Council's board of directors, said the state should pay for experts to interpret the auditors' findings.

"You need an expert to understand them, to be able to identify what is exactly wrong with it, and that costs money," Hennessy said. "Who's going pay for that is the next question in my mind."

Posted by Marcia Oddi on Tuesday, April 05, 2011
Posted to Indiana Government

Ind. Gov't. - "Clarksville council passes new zoning ordinance: Theatair X could face new citations as adult business zones created"

The ILB had several entries about legal clashes over Theatair X in 2009. Today Matt Thacker reports in the New Albany News & Tribune:

CLARKSVILLE — The Clarksville Town Council passed a new zoning ordinance Monday which will create adult business zones and open the door for Theatair X to face new citations.

“This is a comprehensive update to the zoning ordinance,” Town Attorney Rebecca Lockard said. “This has not been brought on by any one issue.”

Lockard said they have been working for 3 1/2 years to update the previous zoning ordinance which was passed in 1993.

While town officials stressed the adult zoning portion is only one part of the ordinance, scores of Clarksville residents attended the council meeting after Reclaim Our Culture Kentuckiana — a Louisville-based group that has long opposed adult bookstore Theatair X — sent emails encouraging its supporters to attend the meeting.

“I’m here tonight to thank you for taking this first step to pass a comprehensive ordinance,” ROCK President MaryAnn Gramig told the council. “It is a very good start, and we’re very encouraged.”

The town passed an ordinance regulating adult businesses in 2005, but last year, Special Judge Robert L. Bennett, from Washington County, ruled the ordinance was invalid because it never went before the plan commission and never had a public hearing before it passed as is required for zoning. An appeal of that decision is pending, and the town’s attorneys admitted the zoning error but maintains that should not affect the validity of the rest of the ordinance. * * *

Gramig said Spencer County has the best adult businesses ordinance in the state, one that the Indiana Court of Appeals upheld and the Indiana Supreme Court declined to hear. She said Clarksville did not follow the Spencer County ordinance, while Lockard said she considered that ordinance along with Louisville’s and the town’s previous ordinance.

Posted by Marcia Oddi on Tuesday, April 05, 2011
Posted to Indiana Government

Ind. Decisions - 7th Circuit issues one Indiana opinion today, again a reversal

In Radentz, et al. v. Marion County (SD Ind., Lawrence), a 14-page opinion, Judge Rovner writes:

The plaintiffs-appellants Stephen Radentz, Michele Catellier, and Forensic Pathology Associates of Indiana, brought an action under 42 U.S.C. § 1983 alleging that the defendants violated their rights under the Equal Protection Clause of the Fourteenth Amendment. The suit was brought against Marion County, as well as against Kenneth Ackles individually and in his official capacity as Marion County Coroner, and Alfarena Ballew, individually and in her official capacity as Chief Deputy Coroner. The suit alleged that the defendants’ decision to terminate the plaintiffs’ contract of employment was based on race discrimination, and specifically was part of a broader effort to replace white workers with African-American workers. The district court granted the defendants’ motion for summary judgment against Radentz and Catellier, and the plaintiffs now appeal that determination. * * *

Taken as a whole, we cannot conclude that a jury would have been compelled to believe the defendants’ explanation. The plaintiffs have produced evidence casting doubt as to whether the decision was truly based on the allegedly exorbitant costs of the out-ofcounty autopsies. The ability to end those autopsies upon six months’ notice under provision K of the contract, without terminating the contract itself, is a significant factor, particularly given the defendants’ claims that they were pleased with the quality of the plaintiffs’ work and wanted to retain them. The other evidence cited above further indicates that race, rather than cost concerns, were the true reason for the decision. The issue before us is whether summary judgment was proper. There is a factual dispute as to whether the decision to terminate the contract was based on a nondiscriminatory reason or whether it was race-based. Therefore, the decision of the district court is REVERSED and the case REMANDED for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Tuesday, April 05, 2011
Posted to Ind. (7th Cir.) Decisions

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

Updating this ILB entry from March 25th, Terre Haute Tribune-Star reports today in a story that begins:

BLOOMINGTON — A leading civil rights lawyer and a panel of legal and academic experts will convene at the Indiana University Maurer School of Law at 3 p.m. April 7 for a symposium on recent developments on same-sex marriage and the Defense of Marriage Act.
The story notes that: "Live video streaming of the event will be available from the symposium website."

Posted by Marcia Oddi on Tuesday, April 05, 2011
Posted to Indiana Law

Ind. Courts - More on "Charges in death of fetus should be dropped, experts say: Medical groups see danger in prosecuting woman who took poison while pregnant"

Updating this ILB entry from April 2nd, the AP reports that: "Bei Bei Shuai’s hearing is set for today in Marion Superior Court."

Posted by Marcia Oddi on Tuesday, April 05, 2011
Posted to Indiana Courts

Ind. Gov't. - "Legislature extends final vote deadline to April 21"

From the NWI Times, Dan Carden reports:

The Indiana General Assembly has extended the deadline for the House and Senate to act on legislation already approved by the other chamber.

The new "Third Reading" deadline is April 21, changed from the original date of April 15. Any bill not approved by both chambers by April 21 is dead.

The extended deadline gives committees more time to review and amend legislation, though it cuts into the two weeks usually allocated for conference committees. That's when state representatives and senators meet together to work out the differences in separately passed bills.

Then makes next week the last week for committee meetings. The day following the last day for 3rd readings will be April 22nd, Good Friday, then the Easter weekend, leaving Monday April 25 through Friday April 29th to work everything out and get it to the Governor.

Posted by Marcia Oddi on Tuesday, April 05, 2011
Posted to Indiana Government

Ind. Gov't. - "No degree, little experience pay off big "

Another article from the Milwaukee Journal-Sentinel, about Governor Walker - a lengthy "watchdog" column by Daniel Bice that begins:

Just in his mid-20s, Brian Deschane has no college degree, very little management experience and two drunken-driving convictions.

Yet he has landed an $81,500-per-year job in Gov. Scott Walker's administration overseeing environmental and regulatory matters and dozens of employees at the Department of Commerce. Even though Walker says the state is broke and public employees are overpaid, Deschane already has earned a promotion and a 26% pay raise in just two months with the state.

Posted by Marcia Oddi on Tuesday, April 05, 2011
Posted to Indiana Government

Monday, April 04, 2011

Ind. Gov't. - Goldsmith changes mind on privatization

Tweets from a few minutes ago, from Mary Beth Schneider of the Indianapolis Star:

For some stories on Steve Goldsmith from earlier this year, during the big NYC snow, start here.

See this June 30, 2010 article at City Limits on Goldsmith and privatization.

Posted by Marcia Oddi on Monday, April 04, 2011
Posted to Indiana Government

Courts - More on "Court leaves in place Ariz. school tax break "

Updating this ILB entry from this morning, there are several articles available already providing good coverage of the SCOTUS decision this morning in Arizona Christian School Tuition Organization v. Winn.

Posted by Marcia Oddi on Monday, April 04, 2011
Posted to Courts in general

Ind. Decisions - Transfer list for week ending April 1 2011

Here is the Clerk's transfer list for the week ending April 1, 2011. It is one page (and 17 cases) long.

One petition to transfer was granted, on March 29th, with opinion, in the case of Edward Dawson v. State of Indiana. See the ILB summary here.
__________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the January 11, 2011 list.

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, April 04, 2011
Posted to Indiana Transfer Lists

Law - "Wholesale Robbery in Liquor Sales"

An op-ed in the NY Times from April 3rd, written by David White, begins:

IMAGINE if Texas lawmakers, in a bid to protect mom-and-pop bookstores, barred Amazon.com from shipping into the state. Or if Massachusetts legislators, worried about Boston’s shoe boutiques, prohibited residents from ordering from Zappos.com.

Such moves would infuriate consumers. They might also breach the Constitution’s commerce clause, which limits states from erecting trade barriers against one another. But wine consumers, producers and retailers face such restrictions daily.

Here is a long list of earlier ILB entries on wine shipping.

Posted by Marcia Oddi on Monday, April 04, 2011
Posted to General Law Related

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

In U.S. v. Hicks (SD Ind., Lawrence), a 20-page opinion in a case argued nearly a year ago, Judge Williams writes:

A jury found Billy Hicks guilty of one count of knowingly distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1). Hicks appeals his conviction, arguing that the district court made several errors during trial. We find that the district court did not err when it dismissed a juror for cause based on her relationship to a witness, admitted tape recordings between Hicks and a confidential informant, and allowed federal agents to testify about their personal observations. However, because we find that the district court improperly allowed evidence of Hicks’s prior drug convictions in violation of Federal Rule of Evidence 404(b), we vacate his conviction and remand for a new trial.

Posted by Marcia Oddi on Monday, April 04, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP) [corrected]

For publication opinions today (1):

Meridian Title Corporation v. Gainer Group, LLC - correction, this was mistakenly included by the ILB in the NFP group

NFP civil opinions today (4):

Larry E. Webb Construction, et al. v. Theresa Burns (NFP)

In Edwin Blinn, Jr. v. Robert Hammerle and Hammerle & Cleary (NFP), a 28-page, 2-1 opinion, Chief Judge Robb writes:

Following Edwin Blinn's guilty plea and sentencing in federal court to money laundering charges, Blinn sued his criminal defense attorney, Robert Hammerle, for malpractice and unjust enrichment. The trial court granted Hammerle's motion for summary judgment on all claims. Blinn now appeals, raising four issues for our review, which we consolidate and restate as three: 1) whether Blinn filed his complaint within the statute of limitations, 2) whether Hammerle committed malpractice, and 3) whether Hammerle was unjustly enriched. We conclude that Blinn did not file his complaint within the applicable statute of limitations, and even if he did, we also conclude that Hammerle did not commit malpractice and Hammerle was not unjustly enriched. Therefore, the trial court's judgment is affirmed. * * *

Blinn did not file his complaint within the applicable statute of limitations, and his claims are therefore time-barred. Further, addressing the merits, the trial court did not err in granting summary judgment against Blinn on his malpractice claim because Blinn has not demonstrated Hammerle's failure to object to the period of home detention was malpractice. Neither did the trial court err in granting summary judgment against Blinn on his unjust enrichment claim. For the above reasons, summary judgment in favor of Hammerle is affirmed.

VAIDIK, J., concurs.
MAY, J., dissents with opinion. [which begins, at p. 21 of 28] I agree with the majority's analyses of the limitations and malpractice issues. However, I believe there is a genuine issue of material fact as to whether Hammerle was, under the terms of the parties' original and modified fee agreements, unjustly enriched when he retained the additional $20,000 even though there was no trial. I must therefore respectfully dissent.

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

Elkhart General Hospital v. Doris Williams (NFP)

NFP criminal opinions today (3):

Robert Arnold v. State of Indiana (NFP)

Michael L. Spencer v. State of Indiana (NFP)

Athena Jackson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 04, 2011
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from March 31st, the text of the amendment to SB 301 proposed and adopted at the House Courts & Criminal Code Committee on the 31st is now available online.

It would add a new subsection (n) to IC 33-37-7-2:

(n) In a circuit in which all of the circuit and superior courts do not rely solely on a case management system provided by the judicial technology and automation project, the clerk of the circuit court shall:
(1) retain one dollar ($1) of each automated record keeping fee (IC 33-37-5-21) collected by the clerk for an action if the clerk is directed to do so by the county council of a county in the circuit; and
(2) distribute monthly to the county auditor of the county any money retained under this subsection.
The money retained by a clerk under this subsection shall be used for the lease or purchase of a case management system for use by the circuit and superior courts in the circuit.

Posted by Marcia Oddi on Monday, April 04, 2011
Posted to Indiana Courts

Courts - "Court leaves in place Ariz. school tax break "

That is the headline to this very brief, first to report, story by AP on the SCOTUS ruling today in Arizona Christian School Tuition Organization v. Winn. Here is the SCOTUSblog background page.

The State of Indiana submitted an amicus brief on behalf of what turns out to be the winning side.

Posted by Marcia Oddi on Monday, April 04, 2011
Posted to Courts in general

Courts - Campaign Finance; Patenting Genes

Not related, except that they are each the subject of an interesting entry this morning in the WSJ Law Blog:

Posted by Marcia Oddi on Monday, April 04, 2011
Posted to Courts in general

Ind. Gov't. - "Indiana lawmakers on track but now facing deadline pressure: Education, budget, redistricting on list"

Eric Bradner of the Evansville Courier & Press has an overview of the big issues on the lawmakers' to-do list: redistricting; education reform; the budget.

Posted by Marcia Oddi on Monday, April 04, 2011
Posted to Indiana Government

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

Updating this ILB entry from March 27th, the NY Times Supreme Court writer, Adam Liptak's Sunday column begins:

Can a class-action lawsuit be too sprawling to deliver old-fashioned justice?

Posted by Marcia Oddi on Monday, April 04, 2011
Posted to Courts in general

Ind. Gov't. - Still more on: Judge rules in Lake County election dispute

For more on this Lake County election law story, see this column by Mark Kiesling in the Sunday NWI Times.

Posted by Marcia Oddi on Monday, April 04, 2011
Posted to Indiana Government

Ind. Law - "Legislation proposed to regulate homeowners associations"

David A. Mann has this story in the April 2nd New Albany News & Tribune. Some quotes:

A bill making its way through the Indiana General Assembly would allow the Attorney General’s office to regulate homeowners associations, and some Jeffersonville residents hope it really hits home.

The legislation passed out of the House weeks ago, then made it out of a Senate committee earlier this week with unanimous support. It could go for a full senate vote late this week, said Bryan Corbin, public information officer for the attorney general’s office.

The bill authorizes the attorney general to bring action against the board of directors or individual members of a homeowners association in certain circumstances. Courts in which actions are brought will be able to issue injunctions, order a board member to make restitution or be removed, among other provisions.

Corbin called it a consumer protection measure.

Already the attorney general’s office has regulatory authority over similar organizations. The new legislation “would just extend those legal safeguards that already exist for nonprofits”

Corbin said his office has received complaints about problems with homeowners associations in the past. Until the law passes, they don’t have the authority to do anything about those.

The story goes on to describe the testimony of an individual with a complaint about another condominium owner, which is already in court. The story does not explain how the proposed legislation would impact such a situation.

The bill is HB 1058.

Posted by Marcia Oddi on Monday, April 04, 2011
Posted to Indiana Law

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

Here is the answer to "What did you miss over the weekend from the ILB?

But first, a new quarter began Friday, April 1st. Please become an ILB supporter! It has been a LONG TIME since any new supporter signed on ... Not encouraging. But thanks much to those who do. Check them out via the upper right-hand column of this page, including the law firm and individual supporters.

From Sunday, April 3, 2011:

From Saturday, April 2, 2011:

Posted by Marcia Oddi on Monday, April 04, 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 4/4/11):

Wednesday, April 6th

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

Webcasts of Supreme Court oral arguments are available here.



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

Monday, April 4th

Tuesday, April 5th

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

Monday, April 11th

Tuesday, April 12th

Wednesday, April 13th

Friday, April 15th

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, April 04, 2011
Posted to Upcoming Oral Arguments

Sunday, April 03, 2011

Courts - "Legal scholars examine the U.S. high court's 'Supreme Mistakes'"

The subhead to this LA Times story from Carol J. Williams: "A high-powered gathering of legal scholars at Pepperdine's law school look at five decisions widely considered the worst in the court's history. The rulings are presented as learning opportunities as well as thwarted justice."

One of them is Buck V. Bell, where "in 1927, fear and prejudice drove the high court to uphold a Virginia law allowing the sexual sterilization of institutionalized people." The U of Va. has an archive on the case background. Three of the others are also grounded in fear and prejudice: Korematsu vs. United States, Dred Scott vs. Sandford, and Plessy vs. Ferguson.

From the story:

The fifth case examined by the professors, 1938's Erie vs. Tompkins, earned its infamy more for procedural injury than individual harm, as it tossed out nearly a century of federal civil case law applied in states lacking statutory guidance.

Posted by Marcia Oddi on Sunday, April 03, 2011
Posted to Courts in general

Saturday, April 02, 2011

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 March 23rd, a long national piece by Greg Bluestein of the AP, headed "State budget crises push sentencing reforms," accompanied by a survey headed "Sentencing changes in some states at a glance."

Posted by Marcia Oddi on Saturday, April 02, 2011
Posted to Indiana Government

Ind. Courts - "What happens when cases get bogged down in court? ‘Lazy judge motions’ have been filed 11 times in Monroe since 2000"

Another great story today ($$) from Laura Lane of the Bloomington Herald-Times. A quote from the long story:

Complaints about judges taking too long to make decisions most often are resolved between the lawyers and the judge. But not always.

For instance, Monroe Circuit Court Judge Valeri Haughton, who took the bench in 2009, accumulated three of the county’s total of 11 such complaints filed since 2000, one her first year in office and two in 2010. All were divorce cases.

Monroe Circuit Judge Kenneth Todd, who oversees criminal cases, had one filed against him in February in a case involving a fatal boat crash on Lake Monroe. He had a previous complaint in 2001.

* * * And former Monroe Circuit Judge David Welch, who did not seek re-election in 2008, had five since 2000.

The “notice of withdrawal of submission” petitions document how a judge has not met deadlines under Indiana trial court rules.

And when a judge does not meet them, what are commonly called “lazy judge motions” can compel the Indiana Supreme Court to assign the case to another judge. * * *

Indiana State Supreme Court spokeswoman Kathryn Dolan said there are about 400 courts in the state and “lazy judge motions” are not often filed. There were just 20 filed statewide in 2008 and 32 in 2009; 2010 statistics have not yet been compiled.

Interestingly, a look back in the ILB archives uncovered this Oct. 7, 2008 entry, quoting another Laura Lane story. At that time:
Attorneys Valeri Haughton, a Democrat, and Republican Joby Jerrells are seeking the Circuit Court 6 seat being vacated by Judge David Welch, a Democrat who is not seeking re-election.
Both Haughton and her precedessor, Welch, are mentioned in today's story. (Welch is the husband of state representative Peggy Welch.) Jerrells was recently a finalist for the Tax Court.

Posted by Marcia Oddi on Saturday, April 02, 2011
Posted to Indiana Courts

Ind. Courts - "Charges in death of fetus should be dropped, experts say: Medical groups see danger in prosecuting woman who took poison while pregnant"

From Shari Rudavsky's story today in the Indianapolis Star:

When Bei Bei Shuai swallowed poison in December, she was focused on killing herself, not on the welfare of the fetus she was carrying. But Shuai survived her suicide attempt, and her fetus did not, leading the Marion County prosecutor's office to charge her with murder.

On Friday, national medical groups and local experts came out in her support, arguing the court should dismiss the charges.

A brief filed on behalf of the American College of Obstetricians and Gynecologists, the American Medical Women's Association and the National Asian Pacific American Women's Forum, among others, said prosecuting Shuai could set a dangerous precedent.

Specifically, it could dissuade pregnant women from seeking prenatal care if they felt they could be prosecuted for mistreating their fetus, said David Orentlicher, Samuel R. Rosen professor of law at the Indiana University School of Law-Indianapolis and co-author of the brief. * * *

The American Civil Liberties Union also has submitted a brief to the court, arguing that charging Shuai with a crime for attempting suicide is unconstitutional because a man or nonpregnant woman would not been charged for the same act. * * *

Shuai's attorney, Linda Pence, said carrying through with the case against Shuai could serve as a deterrent for other depressed pregnant women. After Shuai took the poison, she let two friends take her to the hospital, where her life was saved.

Many of the documents in this case are available on the ACLU website. Here is the ACLU Amicus Brief. Here is the American Women's Medical Ass'n. Amicus Brief. Here is Defendant's Memorandum in Support of Motion to Dismiss.

Posted by Marcia Oddi on Saturday, April 02, 2011
Posted to Indiana Courts

Ind. Gov't. "Gas distributors oppose $2.7B Rockport gasification plant"

Fascinating, lengthy story today by Chris O'Malley of the IBJ ($$), based on testimony before the Indiana Utility Regulatory Commission on the proposed coal gasification plant in Rockport that would be subsidized by Indiana natural gas customers. Six gas-distribution companies are urging total rejection; Vectren is against the proposed 30-year contract. From near the end of the story:

CAC’s program director, Kerwin Olson, said the recently filed concern of the seven gas firms “speaks volumes for our case. This is a bad deal for ratepayers. This is a case of monumental consequences to the state of Indiana and ratepayers.”
Mention is also made of behind-the-scenes efforts to revive the CO2 pipeline bill.

For background, start with this ILB entry from March 19th.

Posted by Marcia Oddi on Saturday, April 02, 2011
Posted to Indiana Government

Ind. Gov't. - "Bill would remove legislature from toll road equation"

"Lawmakers' approval would not be required" is the subhead to this front-page story today by Heather Giller of the Indianapolis Star. Some quotes:

The governor would have the sole authority to create toll roads under a bill that has been quietly advancing through the Indiana legislature.

The measure, which would expire in 2015, is up for a vote in the House Roads and Transportation Committee next week. It passed the Senate 37-12 in February.

"It's that whole thing about striking while the iron is hot," said the bill's sponsor, Sen. Tom Wyss, R-Fort Wayne.

Private companies are "not going to invest a million bucks into a project and then have to wait for the General Assembly to approve it," he said. "They'll go to a state where they can do it (more expediently)."

For a four-year period, the bill would allow the governor and the Indiana Department of Transportation to launch public-private projects, including creating or converting existing highways to toll roads, without the approval of the legislature. Opponents worry it would shut voters out of government deals with private companies. * * *

The requirement that lawmakers sign off on such projects was a part of Gov. Mitch Daniels' Major Moves package, approved in 2006. The project marked the beginning of the state's use of public-private partnerships to launch major road developments.

The following year, the Commerce Connector project -- Wyss' push to create a second highway loop around Indianapolis' I-465 -- drew public opposition, and Daniels urged Wyss to pull the proposal rather than put it to a vote in the House.

The idea of the governor making private highway deals without consulting other elected officials troubles Rep. Terri Austin, D-Anderson, who held hearings on the 2007 Commerce Connector proposal. If Wyss' measure had been in effect at that time, she pointed out, the governor could have simply ignored public opposition.

"This would basically remove any General Assembly oversight whatsoever," Austin said. "He just gets to say, 'I want to do that. This is how I want to do it.' "

Under Wyss' bill, any proposal for a public-private road project would get a review -- but not a vote -- by the State Budget Agency, which includes the state budget director and one representative from each of the four caucuses: the House and Senate Republicans and Democrats. Before that, the proposal would undergo feasibility and economic impact studies, and the public could comment on it in a hearing -- all special requirements for public-private partnerships that lawmakers approved last year. * * *

The measure allowing public-private partnerships is tucked into a larger transportation bill, Senate Bill 473, and has mostly escaped public attention. It passed the Senate Feb. 22, the first full day of the House Democrats' walkout.

Wyss said he hopes the House amends out the 2015 expiration date, making the exclusion of legislators from the process permanent. The expiration date was inserted to appease lawmakers who are lukewarm to the measure, he said.

Posted by Marcia Oddi on Saturday, April 02, 2011
Posted to Indiana Government

Courts - "Cruel but Not Unusual: Clarence Thomas writes one of the meanest Supreme Court decisions ever"

The SCOTUS decision this week in Connick v. Thompson, which the ILB noted in this March 30th entry, has been the subject of several stories.

The headline above of that of Dahlia Lithwick's April 1 column in Slate. A few quotes:

In 1963, in Brady v. Maryland, the Supreme Court held that prosecutors must turn over to the defense any evidence that would tend to prove a defendant's innocence. Failure to do so is a violation of the defendant's constitutional rights. Yet the four prosecutors in Thompson's case managed to keep secret the fact that they had hidden exculpatory evidence for 20 years. Were it not for Thompson's investigators, he would have been executed for a murder he did not commit.

Both of Thompson's convictions were overturned. When he was retried on the murder charges, a jury acquitted him after 35 minutes. He sued the former Louisiana district attorney for Orleans Parish, Harry Connick Sr. (yes, his dad) for failing to train his prosecutors about their legal obligation to turn over exculpatory evidence to the defense. A jury awarded Thompson $14 million for this civil rights violation, one for every year he spent wrongfully incarcerated. The district court judge added another $1 million in attorneys' fees. A panel of the 5th Circuit Court of Appeals upheld the verdict. The 5th Circuit, sitting en banc, affirmed again.

But this week, writing on behalf of the five conservatives on the Supreme Court and in his first majority opinion of the term, Justice Clarence Thomas tossed out the verdict, finding that the district attorney can't be responsible for the single act of a lone prosecutor.

Here is NPR's Nina Totenberg's story this morning on Weekend Edition Saturday.

Posted by Marcia Oddi on Saturday, April 02, 2011
Posted to Courts in general

Friday, April 01, 2011

Ind. Courts - "Convicted sex offender Mike Haughee facing forgery charge"

That is the headline today to a story in the Chesterton Tribune, updating a very long list of earlier ILB entries on Michael Haughee, a former Hebron official and former Lake County deputy prosecutor

Posted by Marcia Oddi on Friday, April 01, 2011
Posted to Indiana Courts

Ind. Gov't. - "Unfunded pension liabilities will pain Indiana for decade"

Eric Bradner of the Evansville Courier & Press has this story today.

Posted by Marcia Oddi on Friday, April 01, 2011
Posted to Indiana Government

Ind. Law - "Deceit doesn’t protect life"

That is the heading to the editorial today in the Fort Wayne Journal Gazette about the abortion legislation being passed in this General Assembly.

For background, start with this ILB entry from March 31st.

And see Doug Masson's post today that concludes: "Indiana is coming to resemble that old quip: Government small enough to fit into your bedroom."

Posted by Marcia Oddi on Friday, April 01, 2011
Posted to Indiana Law

Courts - Missouri trial court throws out law based on one-subject requirement

Fascinating story today in the St.Louis Post Dispatch, reported by Virginia Young. Some quotes from the long story:

Missouri's ethics law, touted as strengthening financial disclosure by public officials, was thrown out Thursday by a Cole County judge.

Cole County Circuit Judge Daniel R. Green ruled that the law was unconstitutional because it was passed as part of a bill that covered multiple subjects. The state constitution requires that bills contain only one subject.

The ruling opens a can of worms as the Legislature heads into the final six weeks of the current session. Legislators could try to re-enact parts of the law. However, one House leader said it might be too late to begin a full-fledged ethics overhaul.

A spokeswoman for Attorney General Chris Koster said the state will appeal the ruling. * * *

The law was passed on the last day of the 2010 legislative session. * * *

But Green said the bill also "contains matters that do not fairly relate to ethics, have a natural connection to ethics or are a means to accomplish the law's purpose as enacted."

Those multiple subjects included changes in state purchasing rules and a requirement that each legislator be provided a key to the dome of the state Capitol.

The judge halted enforcement of all provisions except those dealing with purchasing, the original purpose of the bill. * * *

The lawsuit ... attacked the bill's multiple subjects, relying on a 1994 case known as Hammerschmidt vs. Boone County. In that ruling, the Missouri Supreme Court said limiting bills to a single subject was intended to allow legislation to "be better grasped and more intelligently discussed."

The ILB has been able to locate the Supreme Court of Missouri's 1994 opinion in Hammerschmidt vs. Boone County, which was relied on in the current case.

Posted by Marcia Oddi on Friday, April 01, 2011
Posted to Courts in general

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

For publication opinions today (1):

In Hochstetler Living Trust v. Friends of Pumpkinville Nature Trail, a 12-page opinion, Judge Mathias writes:

Friends of the Pumpkinvine Nature Trail, Inc. (“the Nature Trail”) filed an action in Elkhart Superior Court against the Hochstetler Living Trust (“the Trust”) seeking to quiet title in a certain strip of land, and the Trust filed a counter-claim against the Nature Trail. The parties then filed cross-motions for summary judgment, and the trial court entered summary judgment in favor of the Nature Trail, concluding that the Nature Trail held a fee simple interest in the land at issue. On appeal, the Trust claims that the Nature Trail‟s quiet title action was barred by claim preclusion. We affirm. * * *

Because the Plank Deed conveyed a fee simple interest to the railroad company, the Penn Central quitclaim deed conveyed that fee simple interest to the Nature Trail. As this conveyance preceded the settlement agreement in the Firestone class action, it is excluded from the order entered in that case and the Nature Trail is not precluded from bringing the current quiet title action. The trial court properly granted summary judgment in favor of the Nature Trail.

NFP civil opinions today (1):

Cyril Huerter v. Estate of James Sedric, et al. (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, April 01, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Judge rules in Lake County election dispute

Updating this March 30th ILB entry, Chelsea Schneider Kirk reports in the Gary Post-Tribune:

George Janiec will appeal Lake Superior Court Judge Jesse Villalpando’s ruling to keep him off the ballot in the Republican primary for Hammond mayor.

Villalpando called a final hearing in Janiec’s case on Thursday when he asked if there had been any change in circumstances since he issued his ruling the day before. Villalpando had told Janiec it was up to him to remove the controversy surrounding his candidacy for Hammond mayor. The judge ruled Janiec had broken the oath of office he took as a School City of Hammond board member by running on a party ticket in the municipal elections.

Janiec’s attorney, Cordell Funk, told Villalpando there were no changes, and immediately after the hearing, Funk filed a notice of appeal sending the case to the Indiana Court of Appeals. Early voting begins in Lake County on Monday, but Funk said the main goal is for Janiec’s name to be on the May 3 ballot.

Posted by Marcia Oddi on Friday, April 01, 2011
Posted to Indiana Government

Ind. Courts - "Former Vanderburgh prosecutor censured, but not charged in drug case"

From the Evansville Courier & Press, this story, reported by Mark Wilson, that begins:

The Indiana Supreme Court Disciplinary Commission suspended a former Vanderburgh County deputy prosecutor from practicing law because he violated state law to obtain prescriptions, as well as professional conduct rules.

But while the commission said Neil C. Thomas illegally obtained 85 prescriptions for painkillers during a one-year period while in office, a special prosecutor in the case declined to file criminal charges against him.

Thomas is suspended from practicing law for 6 months beginning on April 29, with two months of actual suspension and the rest subject to completing 18 months of probation monitored by the Judges and Lawyers Assistance Program.

The state program is designed to help judges, lawyers and law students cope with mental health, substance abuse and other issues that impair the ethical practice of their profession and quality of life.

Posted by Marcia Oddi on Friday, April 01, 2011
Posted to Indiana Courts