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Tuesday, May 31, 2011

Ind. Decisions - WTHR 13 posts Bisard ruling [Updated]

WTHR 13 has posted a story, plus a copy of today's ruling.

[More] The ILB has now OCRed Judge Hawkins' 5/31/11 Bisard ruling and posted it here.

Here is AP reporter Charlies Wilson's comprehensive story on the ruling.

[Updated 6/1/11] Here is Carrie Ritchie's worth-reading expanded story in this morning's Indianapolis Star.

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to Ind. Trial Ct. Decisions

Courts - "Warrantless cell phone searches spread to more states"

Headline from a story today by Amy Gahran in a special to CNN-Tech. The story begins:

Think about all the data -- photos, videos, text messages, calendar items, apps, call log, voice mail, and e-mail -- on your cell phone right now. If you're arrested, could the police search your cell phone? And would they need a warrant?

That depends on which state you're in.

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to Courts in general

Courts - "Madoff Victim Seeks Divorce Do-Over"

Don't miss this front-page story today in the NY Times, reported by business writer Peter Lattman. It begins:

After 33 years of marriage, Steven Simkin and Laura Blank divorced in 2006. They agreed to split their considerable wealth equally. She got the apartment on the Upper East Side; he got the house in Scarsdale, N.Y.

Afterward, they spoke infrequently, mostly concerning their two grown sons.

More than two years later, Ms. Blank received a voicemail message that stunned her: Mr. Simkin wanted to revise their settlement. She refused, and he sued.

While divorce agreements are generally ironclad and rarely rescinded, this challenge has now reached New York’s highest court. Deeply divided appellate justices requested what is considered an unusual review of settled law involving contracts.

What made Mr. Simkin’s call for a do-over even remotely possible has its roots in Bernard L. Madoff’s Ponzi scheme.

When the couple split their assets evenly, the largest chunk of money was invested with Mr. Madoff. Mr. Simkin kept much of his funds in the Madoff account, which was held in his name. Ms. Blank, who said she had no interest in investing with Mr. Madoff, received her settlement proceeds in cash.

Shortly after Mr. Madoff admitted wrongdoing in December 2008, Mr. Simkin, a lawyer at one of the country’s most powerful law firms, Paul, Weiss, Rifkind, Wharton & Garrison, filed court papers to drastically alter the terms of his divorce settlement. Ms. Blank, he argued in the lawsuit, should be required to turn over millions of dollars that she had received in their settlement to make up for the substantial losses he had sustained in the fraud.

The Simkin-Blank dispute has riveted the state’s matrimonial bar, and splintered opinions among the six judges who have already weighed in on the case.

Later in the lengthy story:
Mr. Simkin’s suit rests on the doctrine of “mutual mistake,” a well-established principle that allows for the cancellation of contracts, including divorce agreements, when both parties are innocently mistaken about an essential term.

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to Courts in general

Ind. Courts - More on "Judge To Rule On Bisard Alcohol Charges"

Updating this ILB entry from a few minutes ago, CarrieRitchie of the IndyStar tweets:

Hawkins rules #Bisard blood draw was not legally administered, cannot be used in drunk driving charges

But #Bisard blood draw can be used to establish recklessnes in his one remaining felony charge

Ditto from Indy6 News.

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to Ind. Trial Ct. Decisions

Courts - "The Confidential Nature of Lawsuits"

Law.com has posted this article by attorneys Joel Cohen and Katherine A. Helm. A sample:

The need for pseudonyms in litigation has expanded with the times. A recent New York Times piece [4/22/11], by First Amendment advocate Emily Bazelon, discusses the virtues of allowing litigation to proceed with pseudonymous plaintiffs in situations where the injury itself arises from abuses of the Internet's anonymity. The article, entitled "How to Unmask the Internet's Vilest Characters," argued that the pseudonym procedure appropriately dovetails with the need to avoid further stigmatizing a plaintiff who, for example, has suffered defamation and an invasion of privacy by having nude photographs of herself posted on a website anonymously, without her permission, and with the label "Jap Slut." In that situation, the plaintiff wanted to get a court order unmasking the poster (whom she believed was her abusive ex-boyfriend and/or his friends), but as the article notes "it's hard to bring such a suit without making her own humiliation complete."

Obviously, the thinking from these different quarters of the legal world is that while Justice Louis Brandeis' aphorism, "Sunlight is the best disinfectant," is usually right on the mark as a matter of public policy, sometimes sunlight can also cause melanoma. Social norms change, and many First Amendment advocates have come around to accepting the notion that the courts should sometimes depart from the conventional wisdom that those who initiate litigation must relegate concepts of privacy and confidentiality to the scrap heap. When a plaintiff opens the courtroom doors and seeks a public redress of an alleged wrong, the law can and should still provide for a means to litigate that both preserves the privacy rights of the plaintiff and furthers the public interest. Legislation may be required to adequately accomplish the goal of a litigant to retain some semblance of confidentiality in some cases. * * *

So in what cases is it appropriate for a plaintiff to bring a lawsuit anonymously, or under seal? While the notion of a sealed complaint might not jibe with some of the more staunch First Amendment jurisprudence, are there any instances where this is appropriate?

See also this Sept. 10, 2007 ILB entry, re a law journal article by Indiana University School of Law-Indianapolis professor Joel M. Schumm, titled "No Names, Please: The Virtual Victimization of Children, Crime Victims, the Mentally Ill, and Others in Appellate Court Opinions."

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to Courts in general

Ind. Gov't. - "Guns OK on city property – but not state"

This item from the Sunday FWJG Political Notebook column by Niki Kelly and Benjamin Lanka:

Legislators this year passed a law essentially gutting all local government rules and regulations regarding firearms.

Lawmakers said they acted to make sure Hoosiers with proper gun-carry permits could take their handguns into municipal or government-owned buildings and properties such as libraries, parks or city halls.

But that law didn’t help a handful of Hoosiers who attended a Statehouse protest last week over an Indiana Supreme Court ruling.

The peaceful rally of more than 200 was on the south lawn on a bright, sunny day. People carried flags and signs and even brought chairs and coolers.

But those carrying weapons were quietly escorted to the sidewalk by Indiana State Police officers.

That’s because a weapons ban for state government buildings also extends to the lawn, police told the citizens – all of whom showed proper permits to carry their handguns. The state ban is based on a rule passed by the Indiana Department of Administration.

Some of the men wore the handguns openly on their hips in holsters while others had shirts covering bulges. Back at the sidewalk, they couldn’t hear the speakers and couldn’t participate in the protest.

Eric Barnes of Indianapolis said it wasn’t all that unexpected that police would ask him to step off state property with his handgun – a Colt .45-caliber pistol. But he is a proponent of openly carrying weapons and wanted to attend the rally.

“I think it’s my Second Amendment right to be here,” Barnes said. “I hope that more of us open-carry people would be here next time.”

[Rep. Mike Speedy, R-Indianapolis], the House sponsor of the law allowing guns on municipal property attended the rally and said the legislation was aimed at local regulations, not state policies.

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to Indiana Government

Ind. Courts - "Judge To Rule On Bisard Alcohol Charges"

6News has this pre-ruling story, along with links to its prior stories. Whatever the ruling today, it likely will not be the last word. From the 6News report:

Joel Schumm, a professor at the Indiana University School of Law-Indianapolis, told 6News' Jack Rinehart on Monday the case could take years to resolve.

"I'd be really surprised if this doesn't go to the Indiana Court of Appeals. If one of the parties wasn't happy with the Court of Appeals, they could take it to the Indiana Supreme Court to look at it, and that would delay this even longer,” he said.

Bisard's attorneys have also petitioned to move the case out of Marion County.

See also this ILB entry from May 21st.

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to Ind. Trial Ct. Decisions

Environment - "State forest trees are sold for logging: Group trying to save 1,300-plus specimens, thought to be protected"

From a May 27th story by Mary Beth Schneider of the Indianapolis Star:

More than 1,300 trees that environmentalists thought had been protected when Gov. Bob Orr declared them part of a backcountry haven in 1981 may soon be mere stumps.

The state Department of Natural Resources auctioned rights to cut down the trees in the Morgan-Monroe and Yellowwood state forests Thursday morning to an Indiana logging company for $52,702. Now, the only thing standing between the trees and a chainsaw is legal action by the Indiana Forest Alliance.

Mick Harrison, a Bloomington attorney for the alliance, sent a "notice of intent to sue" -- the first legal step to block the timber cutting -- on Wednesday to Gov. Mitch Daniels and other state officials, as well as the federal Department of Interior. * * *

Controversy over cutting the trees began in 2009, when the state first offered them to logging companies but pulled back in the face of public resistance. But after the General Assembly failed to pass legislation to permanently keep the trees off-limits, the DNR this month put them back on the auction block.

Phil Bloom, a DNR spokesman, said 1,377 trees on 103 acres will be cut down in the forests, which encompass 47,000 acres in Southern Indiana. They include 271 black oaks, 127 yellow poplars and 122 large-tooth aspens.

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to Environment

Ind. Law - "State law blocks backyard burial plans"

Reporter Laura Lane's story on this topic appeared in the May 25th Bloomington Herald Times ($$$). Here are a few quotes from the lengthy story:

SPENCER — Milo Ray Blaker took sick the day after Christmas, his wife Betty said, and never got well. “He told me the day before he died, ‘I want to be buried there on the hillside.’ So I had the grave dug.”

It’s still there, six feet deep, awaiting the remains of 88-year-old Milo Blaker. His unembalmed body ended up buried two miles away in the old Rose Cemetery — amid the graves of notorious Owen County bank robbers shot by police — because Indiana law requires that people be buried in established graveyards.

Not the backyard. Not 50 feet away from the Blakers’ home on a wildflower-covered hill visible from the kitchen window. * * *

The afternoon of May 16, Betty Blaker — in red wool knit cap, plaid flannel shirt and black rubber mud boots — appeared before the Owen County commissioners.

“I have to establish a cemetery, a green burial cemetery, for me and my husband,” the 83-year-old woman said. “No embalming, no vaults, just a burial ground. I will give you all the land. All I want is two plots.”

It seems simple enough. The Blakers own the land and they want it to be their final resting place. Milo Blaker’s obituary in The Herald-Times said that after his funeral at Whitehall Pentecostal Church, “interment will follow in a private service at the family plot of Blaker Cemetery.”

But that never happened, because no cemetery exists. And as Betty Blaker found out, anyone who wants to create a cemetery on private property must establish a $100,000 perpetuity fund to care for it into the future. She was surprised, and left with her husband’s body to bury.

There was room for him at Riverside Cemetery beside other family members, but Blaker did not want to be embalmed and buried there. The Rose Cemetery, with weathered gravestones dating back to the mid-1800s, does not require bodies to be embalmed, so there lies Milo Blaker. * * *

Larry Harvey is the director of compliance and investigations for the state’s professional licensing board, which oversees funeral homes, cemeteries and anything having to do with cosmetology and barbering. He explained that Indiana law requires that humans be buried in established cemeteries. A funeral director must be present to see the body go into the ground and then sign a death certificate saying the burial happened in a legal place.

“She could have been charged with a Class C felony” had she gone ahead and buried her husband in the grave she had dug up on the hill at home, Harvey said.

If Milo Blaker had been cremated, his ashes could have been scattered anywhere. But he chose a simple burial in a casket made by lifelong friends instead.

The Herald-Times followed up with an editorial on May 28th that concludes:
There are public policy reasons to require some formality where cemeteries are concerned; official confirmation of death and burial may be necessary for legal reasons that benefit families of the deceased as well as the general public.

But the law shouldn’t get in the way of consumers’ pursuing alternatives to traditional burial. There should be more options available for people who want “green” burials, which could include cardboard caskets, no embalming and natural outdoor settings.

In an age when consumer choice is paramount and demand for eco-friendly products and services is increasing, it only makes sense that people should be able to choose a final resting place in greener pastures.

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to Indiana Law

Ind. Courts - "Oral farm lease sprouts trouble: Farm dispute a lesson in what can be left in doubt without a written contract"

Virginia Rainsbottom had this interesting story in the May 29th South Bend Tribune. Some quotes:

ARGOS -- Old-fashioned oral farm rental agreements sealed with a handshake aren't as easy to get out of as they are to get into.

Scott Gardner learned that lesson the hard way after stepping in to take care of his aging father's farm property and realizing he and his four siblings had inherited a big headache.

After Scott's dad, Harold Gardner, 92, who has dementia, was moved to a nursing home, the family discovered he had been leasing 680 acres of farmland for $85 an acre, never raising the price as farmland values and demand escalated.

According to the 2010 Purdue Agricultural Economics Report, the average value for top farmland in northern Indiana was $213 per acre.

"Some farmland is going in excess of $300," said Scott's brother, Mike, who also leases his own farmland.

Both Mike and Scott said they believed their father was being taken advantage of.

Scott Gardner said he asked the renter, Carl Prochno, for $150 per acre; Prochno did not consent, however, because that was not the agreement he had with Harold.

Gardner obtained guardianship of his father and told Prochno the rental agreement was over for 2010 ... after all, it was a verbal agreement ... right?

Wrong.

On Dec. 10, 2009, Gardner received a letter from Prochno's attorney stating that according to Indiana law, a tenancy from year-to-year is to be terminated by notice given at least three months before the expiration of the farm year, March 1.

Therefore, written notice must be given by Dec. 1 of the prior year. Otherwise the oral year-to-year cash farm lease automatically renews under existing terms.

With Prochno continuing to farm the land in April 2010, the Gardner family's estate attorney sent Prochno a written lease termination notice for 2011. * * *

Gardner said he was left high and dry by one attorney whose license had been suspended for nonrenewal.

While the suspension was confirmed by the disciplinary commission, it was not a disciplinary action and the attorney's license has since been reinstated. It took Scott Gardner nearly a year, however, to get his paperwork back.

There is much more to the story.

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to Indiana Courts

Law - "Class Action Filed Against Thomas Jefferson School of Law Over Misrepresentation of Placement Data"

Worth reading, includes documents. The post, from the Law Librarian Blog, begins:

A big hat tip Kyle McEntee, Executive Director of Law School Transparency (LST) for calling attention to this pending class action lawsuit filed by a Thomas Jeferson School of Law (San Diego, CA) grad who is seeking judicial relief from her alma mater under California State law in the Superior Court of the State of California for the County of San Diego. The complaint alleges five causes of action, including that the law school has engaged in “fraudulent and deceptive business practices,” for “a practice of misrepresenting its post-graduation employment statistics,” and that “the disservice the Thomas Jeferson School of Law is doing to its students and society generally is readily apparent.”
See also the second half of this May 24th ILB entry.

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to General Law Related

Ind. Decisions - Tax Court posts May 27th opinion

In Rent-A-Center East, Inc. v. Indiana Dept. of State Revenue (DOR), a 10-page opinion, the DOR had moved for sumary judgment. Judge Wentworth writes:

The parties raise several issues in their motions, which the Court consolidates and restates as whether the Department properly required RAC East to report its 2003 Indiana AGI tax liability using a combined income tax return with two of its affiliates. * * *

This Court has previously considered the effect of speculation and hypotheticals when offered to show the absence of a genuine issue of material fact in the context of summary judgment: * * *

The Department has failed to designate any facts to show it complied with Indiana Code § 6-3-2-2(p); therefore, it has not made a prima facie case that it is entitled to judgment as a matter of law. Consequently, the Court DENIES the Department's motion for summary judgment and GRANTS summary judgment in favor of RAC East, and REMANDS this matter to the Department for actions consistent with this opinion. The parties shall bear their own costs.

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 29 NFP) [Corrected]

[Correction: The Barocas opinion, which the ILB originally had mistakenly listed as a NFP, has been added to the top of the FP opinions, and summarized.]

For publication opinions today (6):

In Trinda Barocas v. State of Indiana , an 8-page opinion, Judge May writes:

Trinda Barocas, while employed as a special education teacher, “flicked” a student's tongue with her finger. At trial, she asserted she was not guilty because teachers have qualified immunity for reasonably necessary disciplinary acts. The trial court convicted her of Class B misdemeanor battery. As the State did not disprove her defense, we reverse. * * *

A person is generally “justified in engaging in conduct otherwise prohibited if he has legal authority to do so.” Ind. Code § 35-41-3-1. This statute has been interpreted to provide legal authority for a parent to engage in reasonable discipline of her child, even if such conduct would otherwise be battery. State v. Fettig, 884 N.E.2d 341, 345 (Ind. Ct. App. 2008), reh’g denied. The same justification has been extended to teachers, as long as the teacher acts within the limits of her “jurisdiction and responsibility as a teacher.” Id. * * *

[T]to sustain a conviction of battery where a claim of parental privilege has been asserted, the State must prove either: (1) the force the parent used was unreasonable, or (2) the parent's belief that such force was necessary to control her child and prevent misconduct was unreasonable. Id. As the State has not met its burden, we reverse Barocas' conviction. * * *

We have found no Indiana decisions in which a parent or teacher's conviction of battery was upheld based on the use of force as minimal as that used by Barocas. * * *

Nor did the State prove the second element of the test adopted in Willis -- that Barocas was unreasonable to believe a physical prompt was necessary to control A.R.'s behavior of sticking out her tongue.

The State's argument on this issue, like its reasonableness argument, is devoid of legal authority. * * *

As the State has not negated Barocas' defense based on her claim of parental privilege, we must reverse.

In Dennis Block v. Mark Magura, a 14-page opinion, Chief Judge Robb writes:
Dennis Block and Mark Magura executed a letter of intent that Magura would purchase Block's interest in a partnership. Magura did not complete the purchase, Block filed suit, and the trial court granted summary judgment to Magura and denied summary judgment to Block on the issue of whether the parties' letter of intent creates an enforceable contract. Block appeals and raises a single issue which we restate as two: whether the trial court erred when it 1) granted Magura summary judgment and 2) denied Block summary judgment. Concluding the letter of intent is an enforceable contract because it contains the essential terms of the parties' agreement and expresses their intent to be bound, we reverse and remand.
In Abram Coleman, Rhonda Coleman, and Jerry Wayne Coleman v. Cynthia Ann Coleman, an 18-page opinion, Judge Barnes concludes:
There is insufficient evidence to support the jury's verdict in favor of Cynthia on her claim of unjust enrichment against the Colemans. Additionally, the award of attorney fees was not permitted by the Crime Victim's Relief Act because Cynthia failed to prove that she suffered any pecuniary loss as a result of purported theft by the Colemans. We reverse the trial court's entry of judgment on those verdicts, and remand for entry of judgment in favor of the Colemans on those counts and for further proceedings consistent with this opinion.
In Mark A. Kolish v. State of Indiana, an 8-page opinion, Judge Najam writes:
Kolish contends that the blood test results were inadmissible [because] the health care provider was not authorized to perform the blood draw under Indiana Code Section 9-30-6-6(j). * * *

However, our Legislature recently amended this statute by adding the following sentence: “This subsection does not apply to a bodily substance sample taken at a licensed hospital (as defined in IC 16-18-2-179(a) and IC 16-18-2-179(b)).” Id. (West 2010). Here, there is no dispute that Kolish’s blood sample was taken at a licensed hospital. And this court has recently held that the 2010 amendment to the statute applies retroactively without violating Indiana’s prohibition against ex post facto laws. See Boston v. State, ___ N.E.2d ___, Cause No. 32A01-1008-CR-421 at *12 (Ind. Ct. App. April 13, 2011). We agree with the panel decision in Boston. Accordingly, we are not persuaded by Kolish’s contention that Joseph was not authorized by statute to perform the blood draw. The trial court did not abuse its discretion when it admitted the blood test results into evidence.

In Edward Godby v. State of Indiana , an 11-page opinion, Judge May writes:
Edward Godby was convicted of a number of methamphetamine-related offenses based in part on items police found in a locked box in his garage. Godby’s wife consented to a search of the garage after the police gave her false information about why they wanted to search. Godby asserts her consent was therefore invalid and, even if his wife could consent to a search of the garage, she could not consent to a search of his locked box. We reverse and remand. * * *

We agree with Godby that the degree of intrusion was great; police removed the hinges on a locked box to gain access to it because Lois did not have a key. That Lois had no key “should have been a clear indicator that the box was not her personal belonging and she could not consent to its search.”

Apparently addressing the “the extent of law enforcement needs” factor, the State notes police saw in the garage items that could be used in the manufacture of methamphetamine, including pop bottles with layered liquid, an electric hot plate, a bottle of hydrogen peroxide, a hydrochloric acid generator, and a glass baking dish with white residue. While this might have provided the police with additional motivation to search the box, the record does not reflect any “law enforcement need” to immediately dismantle and search the locked box rather than request a search warrant. The State did not show the warrantless search of Godby’s locked box was reasonable under Article I, Section 11 of the Indiana Constitution.

As the warrantless search of the locked box was impermissible under the Indiana and United States constitutions, and as it is not possible to determine which of Godby’s convictions, if any, could be supported without the evidence so obtained, we must reverse Godby’s convictions and remand for a new trial.

Jeffrey L. Hunter v. State of Indiana - "Appellant-Defendant Jeffrey Hunter appeals his conviction for Class A misdemeanor Battery. Specifically, Hunter contends that the evidence is insufficient to rebut his proffered defense that the alleged battery qualified as privileged parental discipline. We affirm." As in Barocas [see first case, above], defendant cited Willis. However, the opinion here concludes: "Despite Hunter's argument to the contrary, the arguably degrading and long-lasting physical effects of B.H.'s injuries differentiate the instant matter from Willis, and lead us to conclude that the force employed by Hunter was unreasonable. Because Hunter used unreasonable force in punishing B.H., we further conclude that the evidence presented by the State was sufficient to rebut the alleged parental discipline privilege."

NFP civil opinions today (10):

David Wayne Bray v. Linda Sue Oberholtzer (NFP)

Joan Mazurkiewicz, et al. v. George Hodakowski, M.D., et al. (NFP)

Gary E. Masak v. Sherry E. Masak (NFP)

Balboa Capital Corporation v. Brad Apple (NFP)

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

Eugene C. Ziobron v. Streetlinks National Appraisal Services (NFP)

K.S. v. Review Board (NFP)

M.T., et al.: Alleged to be C.H.I.N.S.; T.J. v. I.D.C.S. (NFP)

Joe Spiker Excavating Inc. v. Monica M. Rahill and Jo A. Morton (NFP)

David Landau v. City of Indianapolis (NFP)

NFP criminal opinions today (19):

State of Indiana v. Aaron R. Limburg (NFP)

Marlon D. McKnight v. State of Indiana (NFP)

Lawrence Archuleta v. State of Indiana (NFP)

Keenan A. Davis v. State of Indiana (NFP)

Lloyd Conn v. State of Indiana (NFP)

Scott Groce v. State of Indiana (NFP)

John Mocasque v. State of Indiana (NFP)

Ronald Lee Phares v. State of Indiana (NFP)

Kyle Brinkley v. State of Indiana (NFP)

Rossando L. McLellan v. State of Indiana (NFP)

James L. Teague, Jr. v. State of Indiana (NFP)

Kristian D. Davis v. State of Indiana (NFP)

Daniel R. Wallace v. State of Indiana (NFP)

Carlos L. Cordova v. State of Indiana (NFP)

Maria Cabrera v. State of Indiana (NFP)

Kevin Curry v. State of Indiana (NFP)

Floyd E. Marsh v. State of Indiana (NFP)

Richard Keck v. State of Indiana (NFP)

Otha Hamilton v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 27, 2011

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 13, 2011 list.]

Here is the Clerk's transfer list for the week ending May 27, 2011. It is two pages (and 22 cases) long.

One petition to transfer was granted:

__________

The ILB archive now contains over seven years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Tuesday, May 31, 2011
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/30/11):

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

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/30/11):

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

Wednesday, June 8th

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 Tuesday, May 31, 2011
Posted to Upcoming Oral Arguments

Friday, May 27, 2011

Ind. Decisions - 7th Circuit to hear girls basketball discrimination lawsuit next Tuesday

Updating this March 11, 2011 ILB entry that quoted an (unfortunately no longer available) Richmond Paladium-Item story that began:

A gender discrimination lawsuit filed against Richmond and other area schools over their scheduling of girls basketball games is headed for a federal appeals court.

The 7th U.S. Circuit Court of Appeals will decide whether a district court judge erred in granting summary judgment last year to area schools that were accused of gender discrimination because they scheduled most girls' games on weeknights and most boys' games on weekend nights.

here is an update. Indiana Education Insight ($$$, quoted with permission) reports in its May 30th issue:
The U.S. Court of Appeals for the Seventh Circuit will hold oral argument Tuesday morning in Parker v. Indiana High School Athletic Ass'n, (10-3595), a matter with an increasingly large national profile.

In this case, emanating from a controversy at Franklin County High School, the U.S. District Court for the Southern District of Indiana considered the issue of scheduling boys' sports games during "prime time" and girls' sports games at less desirable times, and concluded that the disparity in the scheduling was not sufficient to constitute a violation of Title IX.

Here, almost all of the boys' games were slated for "prime time," but one-half of the girls' games were assigned much less desirable midweek slots).

More than one- dozen women's and civil rights organization joined on an amicus curiae brief to the appellate court contending that the activity complained about "deprives the girls' team of a large and enthusiastic audience; sends a clear message that the girls' team is inferior to and less important than the boys' team; and places a disproportionate burden on the girls' ability to balance schoolwork and sports. The court below brushed all of these effects aside, finding that 'the School Defendants' conduct does not hinder the Plaintiffs' development of basketball skills,' and that it consequently did not constitute a violation of Title IX."

The amici collectively argue that "The district court's crabbed reading of Title IX cannot be squared with the many authorities holding that the statute's purpose goes well beyond affording girls the opportunity to develop athletic skills."

See also this list of earlier ILB entries.

Posted by Marcia Oddi on Friday, May 27, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - The documents in the Barnes case [Updated]

The ILB has collected together the various documents, to date, in the controversial Barnes v. State case.

[Updated 5/28/11] Newly added to the above list is the 11/4/10 videocast of the oral argument.

Posted by Marcia Oddi on Friday, May 27, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues two disciplinary rulings

In the Matter of the Honorable William J. Hughes, Judge of the Hamilton Superior Court is a 3-page per curiam opinion that rules:

The Commission asserts that the conduct recited above violates Rule 1.1 and 1.2 of the Code of Judicial Conduct. We agree with the Commission. The parties agree that Respondent cooperated with the Commission during its investigation and prosecution of this judicial disciplinary matter and that the appropriate sanction for Respondent’s misconduct is a public reprimand. We agree with the parties.

Accordingly, William J. Hughes, Judge in the Hamilton Superior Court, is hereby reprimanded.

ILB: For background, start with this May 13, 201 ILB entry.

In the 4-page, per curiam opinion In the Matter of Joshua A. Parilman the court writes:

Respondent practices law in Arizona and is not licensed in Indiana. In spring of 2010, he caused radio stations broadcasting in Indiana to air an advertisement inviting listeners involved in traffic accidents to call him. * * * At least two Indiana residents responded to the advertisement. Respondent's only office is located in Phoenix and he is not part of a national law firm. He is not certified as a specialist in any field of practice by either Indiana or Arizona. In fact, neither Indiana nor Arizona certify lawyers in the area of "automobile accidents." * * *

Discipline: The parties propose the following discipline: Respondent will be barred indefinitely from acts constituting the practice of law in this state, including temporary admission and solicitation of clients, until further order of the Court, and he will pay the costs of this proceeding. We have imposed similar discipline on out-of-state attorneys who have violated this state's client solicitation rules, see Matter of Coale, 775 N.E.2d 1079, 1085 (Ind. 2002), and conclude that this is appropriate in the current case.

Conclusion. The Court, having considered the submissions of the parties, now approves the agreed discipline and bars Respondent indefinitely from acts constituting the practice of law in this state, including temporary admission and solicitation of clients, until further order of the Court.

Posted by Marcia Oddi on Friday, May 27, 2011
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

State of Indiana v. Christopher J. Gill

In re George H. Edwardson Revocable Trust

Lisa R. Wright v. State of Indiana

NFP civil opinions today (0):

NFP criminal opinions today (5):

Quincy English v. State of Indiana (NFP)

Heriberto E. Rivera v. State of Indiana (NFP)

Alfred Solomon v. State of Indiana (NFP)

Citron Stovall v. State of Indiana (NFP)

Robert Paul Baston v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 27, 2011
Posted to Ind. App.Ct. Decisions

Courts - "In blow to business groups, SCOTUS upholds Arizona law on hiring foreign workers "

Tony Mauro of The National Law Journal has this lengthy story on yesterday's ruling in Chamber of Commerce of United States v. Whiting.

Yesterday's ILB entry here.

Posted by Marcia Oddi on Friday, May 27, 2011
Posted to Courts in general

Thursday, May 26, 2011

Ind. Decisions - Supreme Court posts two opinions late today

In State of Indiana v. Jeffrey Brunner , an 8-page, 5-0 opinion, Justice David writes:

On the defendant’s motion, the trial court modified the defendant’s conviction several years after the case had concluded. The Court of Appeals overturned the trial court on grounds that the trial court lacked statutory authority to modify the conviction and ordered the original conviction to be reinstated. We agree with the Court of Appeals and reverse the trial court’s order. We hold it was in violation of statutory authority to modify the conviction. We remand to the trial court to reinstate the original conviction. * * *

The plain meaning of Indiana Code section 35-50-2-7(b), as well as the meaning taken in context with Indiana Code section 35-38-1-1.5, shows that the trial court erred in granting Brunner’s motion for modification of conviction. We reverse and remand with instructions for the trial court to reinstate the original judgment of conviction. The trial court believed it was assisting a defendant who had demonstrated he was worthy of an opportunity to have his conviction modified.

In State of Indiana v. Charles Boyle, a 5-page, 5-0 opinion, Justice David writes:
On the defendant's petition for post-conviction relief, the trial court modified the defendant's conviction several years after the case had concluded. The Court of Appeals overturned the trial court on grounds that the trial court lacked statutory authority to modify the conviction and ordered the original conviction to be reinstated. We agree with the Court of Appeals and grant transfer and reverse the trial court's order. We hold it is in violation of statutory authority to modify the conviction under the circumstances of this case. We remand to the trial court to reinstate the original conviction. * * *

The sole issue is whether the trial court erred in granting Boyle's petition for modification of his conviction for operation of a motor vehicle while a habitual traffic violator as a Class D felony to a Class A misdemeanor. We agree with the State and the Court of Appeals that the trial court improperly granted Boyle's request. For the reasons explained in State v. Brunner, No. 57S04-1010-CR-603, _____ N.E.2d _____ (Ind. May 26, 2011), also decided today, we hold that the trial court erred in modifying Boyle's conviction from a Class D felony to a Class A misdemeanor. * * *

The plain meaning of Indiana Code section 35-50-2-7(b), as well as the meaning taken in context with Indiana Code section 35-38-1-1.5, shows that the trial court erred in granting Boyle's motion for modification of conviction. We grant transfer and reverse the trial court and remand with instructions for the trial court to reinstate the original judgment of conviction.

Posted by Marcia Oddi on Thursday, May 26, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - "Ky. S.Ct: fathers of children conceived during affairs have parental rights"

Andrew Wolfson of the Louisville Courier Journal posted this lengthy story late yesterday. Some quotes:

Men who father a child during an affair with a married woman have the right to seek a role in the child's life, the Kentucky Supreme Court has ruled.

In an emotionally charged decision that critics say will undermine marriage, the court reversed centuries of common law and its own 2008 ruling that held such children are presumed to be the offspring of the woman and her husband.

Bowing to the realities of DNA testing, which makes proving fatherhood a virtual certainty, the high court said in a 4-3 opinion late last week that Christopher H. Egan has the right to assert paternity — and ultimately visitation and shared custody — to a baby girl he said he fathered in September 2008 during an extramarital affair with Julie Ann Stephens. Both live in Northern Kentucky.

The opinion is J.A.S. v. Bushelman, and by a vote of 4-3 it overrules a 2008 opinion in J.N.R. v. O'Reilly. See a review of the 2008 case here at attorney Diana Skaggs' Kentucky Divorce Law Blog; she termed the 2008 ruling "an unprecedented 4-3 decision with two concurring opinions and two dissenting opinions. 47 pages in all."

More from Wolfson's story about this new decision:

A DNA test revealed a 99.9 percent likelihood that he was the girl's father, but Stephens had sought to block a court from considering Egan's paternity claim, citing the state Supreme Court's 4-3 opinion in 2008 that a man who fathers a child during an affair with a married woman has no parental rights.

The court, however, which has one new member since that 2008 decision, reversed its precedent, with the new justice, Daniel Venters, writing the majority opinion.

Venters said the presumption that a child was fathered by the husband made sense for “some 20 centuries” because it was impossible to prove otherwise — unless, for example, the husband was on the high seas for the nine before the child was born.

But DNA testing is now routinely accepted, even to prove guilt or innocence in criminal cases beyond a reasonable doubt, Venters wrote. * * *

[P]roponents of allowing men in such situations to prove paternity — and eventually seek a place in the child's life — say that fathers should be encouraged to step up and accept responsibility for children they procreate.

“It's just common sense that if a person can genetically prove paternity, then they should have rights to the child and responsibilities to the child,” said Louisville family lawyer Diana Skaggs, past president of the Kentucky chapter of the American Academy of Matrimonial Attorneys.

Including Kentucky, 33 states allow a man to challenge the presumption that a child born to a married couple is the husband's.

The ruling gives new hope to James G. Rhoades Jr., who lost the 2008 Supreme Court case and who for five years hasn't seen the son he says he fathered during an affair with Julia Ricketts of Louisville, who decided later that she wanted to raise the child with her husband, Jonathan Ricketts, a Louisville lawyer.

There is much more to read in Wolfson's story.

Posted by Marcia Oddi on Thursday, May 26, 2011
Posted to Courts in general

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

Updating this March 2, 2011 ILB entry, a May 24th press release:

The Hon. Denise K. LaRue Sworn in as Magistrate Judge

INDIANAPOLIS, Indiana (May 24, 2011): The United States District Court for the Southern District of Indiana announced that Denise K. LaRue took the oath to become a United States Magistrate Judge today. Chief Judge Richard L. Young administered the oath in the S. Hugh Dillin Memorial Courtroom in the Birch Bayh Federal Building and United States Courthouse in Indianapolis. A formal investiture ceremony will be held at a later date. Judge LaRue fills a new magistrate judgeship created for the Southern District of Indiana by the Judicial Conference of the United States.

More info here.

Posted by Marcia Oddi on Thursday, May 26, 2011
Posted to Indiana Courts

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

For publication opinions today (3):

In Jerry French, et al. v. State Farm Fire & Casualty Company, et al. , a 22-page opinion, Judge Bradford writes:

Appellants-Plaintiffs Jerry and Becky French and Appellee-Defendant State Farm Fire & Casualty Company both appeal from the denial of their motions for summary judgment. State Farm argues that its offer to pay for another manufactured home after the Frenches' burned fulfilled its obligation under a homeowners' policy to pay the “reasonable and necessary cost” of replacing the Frenches' home with one of “similar construction.” State Farm also argues that it is entitled to rescind the policy because Jerry failed to disclose both the purchase price of the original home and that it was a manufactured home. The Frenches assert that their stick-built home constitutes “similar construction” under the policy and that they are entitled to reimbursement up to the policy limits. The Frenches also assert that State Farm is not entitled to rescind the policy because its insurance agent failed to ask about the purchase price of their original home. Additionally, the Frenches assert that they are entitled to attorneys' fees and prejudgment interest. We affirm in part, reverse in part, and remand with instructions. * * *

We affirm the trial court to the extent that it denied the parties' motions for summary judgment on the Frenches' contract claim and remand for trial on whether State Farm should be liable for the cost of their stick-built home as a reasonable and necessary cost to replace their manufactured home with one of similar construction. At trial, the Frenches may argue that additional living expenses pursuant to Coverage C, mortgage fees, and builder's risk insurance were reasonable and necessary costs of replacing their original home with one of similar construction. We remand with instructions to enter summary judgment in favor of State Farm on the question of whether they are estopped from denying coverage to the Frenches and in favor of the Frenches on the question of whether State Farm may rescind the policy due to the Frenches' concealment or failure to disclose the true value of the manufactured home. Finally, we conclude as a matter of law that the Frenches are not entitled to attorney's fees and decline to address the Frenches' claim that they are entitled to the awards of prejudgment interest as it is not yet ripe for appellate review.

In Alaska Seaboard Partners Limited Partnership v. Gerald Hood, et al. , a 15-page opinion, Judge Vaidik writes:
Saint Ivan Equity Management Corporation, a California corporation, assigned a mortgage on real estate in Avon, Indiana, to SNGC, LLC, a related company of Alaska Seaboard Partners Limited Partnership. Saint Ivan then assigned the same mortgage to Hendricks County Bank and Trust Company. Hendricks County Bank released the mortgage and deeded the real estate to Michael and Sheila McDonald, who later deeded the real estate to Normand and Linda Boutot.

SNGC filed a lawsuit in Orange County, California, alleging, among other things, that Saint Ivan improperly assigned the mortgage to Hendricks County Bank after it had already assigned it to SNGC and should not have received the $107,600 paid by Hendricks County Bank for the mortgage it no longer owned. As a result of that lawsuit, SNGC received a monetary judgment against Saint Ivan.

Alaska Seaboard, who had since been assigned the mortgage once owned by SNGC, then filed suit in Hendricks Superior Court to foreclose on the mortgage. The trial court granted summary judgment in favor of Hendricks County Bank, the McDonalds, and the Boutots. Because Alaska Seaboard’s foreclosure action is barred by the doctrines of collateral and judicial estoppel, we conclude that the trial court did not err by granting summary judgment in favor of Hendricks County Bank, the McDonalds, and the Boutots and denying Alaska Seaboard’s cross-motion for summary judgment. We further conclude that the trial court did not err by awarding attorney’s fees to Hendricks County Bank, the McDonalds, and the Boutots. We therefore affirm the trial court.

In Brian Kendrick v. State of Indiana , a 17-page opinion by Judge Friedlander, one of the issues is: "Do Kendrick’s convictions for attempted murder and two counts of feticide violate the double jeopardy clause in the Indiana Constitution, article 1, section 14?" From the opinion:
In the instant case, we find that the evidentiary facts used to establish the feticide convictions established all of the elements of the attempted murder conviction. Both convictions resulted from one act, the shooting of Shuffield in the stomach. To establish the feticide convictions, the State correctly observes that it was required to present additional evidence regarding Shuffield’s pregnancy and the resulting termination thereof. See I.C. §35-42-1-6 (“[a] person who knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus commits feticide”). No additional evidence, however, was required or presented to establish the attempted murder. Thus, there is more than a reasonable possibility that the evidentiary facts used by the jury to establish the essential elements of feticide may also have been used to establish all of the essential elements of attempted murder.[8]

Having vacated Kendrick’s feticide convictions, we remand for resentencing on the remaining counts. * * *
________
[8.] In 2009, our legislature resolved double jeopardy problems like the one presented in this case by adding Ind. Code Ann. § 35-50-2-16 (West, Westlaw through 2011 Pub. Laws approved & effective through 2/24/2011). This statute allows the State to seek an additional fixed term of imprisonment of between six and twenty years when the State can show beyond a reasonable doubt that the defendant, while committing or attempting to commit murder, caused the termination of a human pregnancy.

NFP civil opinions today (4):

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

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

Douglas McCorkle v. Alesia McCorkle (NFP)

Dennis Mysliwy v. Teresa Mysliwy (NFP)

NFP criminal opinions today (5):

Michelle D. Breedlove v. State of Indiana (NFP)

Donald E. Bunting v. State of Indiana (NFP)

Daniel R. Penticuff v. State of Indiana (NFP)

Marlon Snead v. State of Indiana (NFP)

Elysia B. Souders v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 26, 2011
Posted to Ind. App.Ct. Decisions

Courts - "High court sustains Ariz. employer sanctions law "

Here is the AP's first take on the SCOTUS opinion today in Chamber of Commerce of United States v. Whiting.

Here is the SCOTUSblog case page for Whiting. As it explains the issue:

An Arizona law requires state employers to check the immigration status of job applicants through a federal computer database, although the federal law creating the database makes its use voluntary. Arizona also revokes the business license of state companies that hire undocumented workers. Are these provisions pre-empted by federal immigration laws? (Kagan, J., recused.)
Amy Howe of SCOTUSblog writes: "The Chief Justice's opinion explains that the licensing provision falls squarely within a savings clause in federal immigration law and that the Arizona statute does not otherwise conflict with federal law."

Posted by Marcia Oddi on Thursday, May 26, 2011
Posted to Courts in general

Law - "State lawmakers work to defund Planned Parenthood"

Judy Keen of USA Today has a survey article that begins:

Legislators in several states are trying to do what social conservatives in Congress failed to do last month: cut off federal funding for Planned Parenthood.

The effort in Congress to end the flow of federal dollars to the organization brought the federal government to the brink of a shutdown. Now state legislatures — last year's elections gave Republicans control of both chambers in 26 states — are taking aim at Planned Parenthood.

Posted by Marcia Oddi on Thursday, May 26, 2011
Posted to General Law Related

Ind. Decisions - A lot of stories today on yesterday's Statehouse rally

Niki Kelly's story in the Fort Wayne Journal Gazette begins:

INDIANAPOLIS – More than 200 Hoosiers came to the Indiana Statehouse on Wednesday to protest a Indiana Supreme Court ruling that even the governor has questioned.

They carried American flags, pocket copies of the U.S. Constitution and signs deriding the justices who decided the case.

Here are more stories, each written by a different reporter, from the Louisville Courier Journal, the Indianapolis Star, the NWI Times, the Lafayette Journal Courier, and the Evansville Courier & Press.

Posted by Marcia Oddi on Thursday, May 26, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "ACLU files suit over new immigration law"

In today's Indianapolis Star, Dan McFeely reports on the ACLU challenge to SEA 590. The Star includes a link to the complaint, but it is in MS Word (!) and comes up as gibberish on my screen.

Here is a copy of the ACLU's news release.

[More] Okay, here now is the 20-page ACLU complaint, which the ILB has converted to PDF and posted here.

[Still more] Here are the press releases of AG Zoeller and state senator Delph.

Posted by Marcia Oddi on Thursday, May 26, 2011
Posted to Indiana Courts

Ind. Courts - "Clark judges sue county council over budget cuts"

Some quotes from a story yesterday in the Louisville Courier Journal, reported by Ben Zion Hershberg:

Clark County’s superior and circuit court judges have filed lawsuits against the county council claiming budget cuts have left them with too little money to do their jobs.

If successful, the lawsuits, a special type of litigation called judicial mandates, could require the council to borrow about $1.2 million this year and enact a special tax increase to pay off the loan next year, Clark County Attorney Greg Fifer estimated. * * *

The council cut the budgets of the county’s superior courts and circuit court by 50 percent in March because state finance officials wouldn’t allow the special increase in property taxes that the council requested.

The lawsuits against the county were filed this month by the Superior Court Judges Vicki Carmichael, Jerry Jacobi and Joseph Weber and last month by Circuit Court Judge Dan Moore. * * *

In their lawsuit, the superior court judges say that it will be impossible for their courts to function properly if the budget cuts are not restored.

The county council and the courts resolved a similar lawsuit in February 2008, when the council agreed to pay the courts $850,000 for funds cut from their budgets in 2004 and 2005, and another $250,000 in legal fees for both sides. * * *

Michael Maschmeyer, the lawyer who filed the judicial mandate lawsuit for Judge Moore, said he has been in touch with the offices of the Indiana Supreme Court, which must appoint a lawyer from outside Clark County and its immediate, neighboring counties to act as a special judge in the case.

He expects the special judge to be appointed soon and then to require mediation of the dispute. It’s important, Maschmeyer said, for the dispute to be resolved soon because he thinks the circuit court could run out of money to maintain its operations in a couple of months, and he believes county government, in general, is at risk.

The public “will be appalled if that (Clark County Government) building is shut down,” he said.

Posted by Marcia Oddi on Thursday, May 26, 2011
Posted to Indiana Courts

Wednesday, May 25, 2011

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

For publication opinions today (1):

In Estate of Bradley Kinser, et al. v. Indiana Insurance Company , a 14-page opinion, Chief Judge Robb writes:

Following Bradley Kinser‟s car accident and death while driving his girlfriend‟s car, Kinser‟s auto insurance carrier, Indiana Insurance Company, filed for a declaratory judgment that it is not obligated to cover any losses because Kinser‟s policy excluded coverage for a vehicle furnished or available for his regular use. The Estate of Bradley Kinser, Natalie Rike, Ava Rike, Rachel Kinser, Don Page, Jayne Page, and Erie Insurance Company (collectively “Appellants”), appeal from the trial court‟s grant of summary judgment in favor of Indiana Insurance and denial of their own motion for summary judgment. On appeal, Appellants raise two issues, which we restate as whether the trial court erred in concluding that Indiana Insurance is entitled to judgment as a matter of law, and that Appellants are not entitled to judgment as a matter of law. Concluding that a genuine issue of fact remains and that neither Appellants nor Indiana Insurance is entitled to judgment as a matter of law, we reverse and remand. * * *

Conclusion. A genuine issue of fact remains as to whether the Focus was furnished or available for Kinser‟s regular use, thereby precluding summary judgment for either Indiana Insurance or Appellants. Accordingly, we reverse the trial court‟s summary judgment and remand for further proceedings consistent with this opinion.

NFP civil opinions today (4):

Keith McClaran, et al. v. Mortgage Electronic Registration Systems, Inc. (NFP)

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

Paternity of C.C.; M.L. v. J.C. (NFP)

Joseph Wright v. Aquavalyn Wright (NFP)

NFP criminal opinions today (8):

Otis Allen Tate, Jr. v. State of Indiana (NFP)

Clint Cullen v. State of Indiana (NFP)

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

Michael Nordman v. State of Indiana (NFP)

Jimmy E. Griffin II v. State of Indiana (NFP)

Elliott J. Welch v. State of Indiana (NFP)

Mark Smith v. State of Indiana (NFP)

Anthony Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 25, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - IBA puts together memo on Barnes decision

The Indianapolis Bar Association has distributed this 2-page media release setting out a statement/analysis of Barnes v. State.

(BTW, its heading seems to be left over from an earlier release).

Posted by Marcia Oddi on Wednesday, May 25, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Daniels 'puzzled' by cop entry ruling"

Dan Carden reports today in the NWI Times:

INDIANAPOLIS | Count Gov. Mitch Daniels among those who are not fans of the Indiana Supreme Court's ruling [in Barnes v. State] that Hoosiers do not have a right to resist illegal police entry into their homes.

"I was puzzled by the ruling as a lot of folks were, but they have the last say," Daniels said.

That means, unlike some state legislators who have publicly called on the court to repudiate its ruling, the Republican governor plans to keep quiet.

"I'm not in habit of giving advice to the Supreme Court," Daniels said. "It'll be up to them to decide whether in some fashion to revisit what they did." * * *

On Tuesday, Daniels seemed to distance himself from David, reminding reporters the governor is required to choose a new justice from among three candidates recommended by a judicial selection committee.

At the same time, Daniels defended his pick.

"In the interviews and in the aftermath of his appointment, he stood out as a strict constructionist judge in terms of respecting the Constitution of the state and the laws of the state, and as far as I know that's still an accurate description," Daniels said.

There is tape of precisely what the governor said, and his intonations. This is available online thanks to reporter Abdul Hakim Shabazz's "In Mitch's Own Words" entry here. Access Daniels' remarks in the third segment, at a little less than half way though.

Posted by Marcia Oddi on Wednesday, May 25, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - Still more on: SCOTUS decides major prison case today

Updating this May 23rd ILB entry on the SCOTUS decision in Brown v. Plata, Monique Garcia reported yesterday in the Chicago Tribune in a brief story that begins:

SPRINGFIELD -- A U.S. Supreme Court ruling ordering California to release tens of thousands of prisoners to ease overcrowding should serve as a warning bell about the need to overhaul sentencing standards in Illinois, a prison watchdog group said today.

“We don’t want to become California,” said John Maki, executive director of the Chicago-based John Howard Association. “We need to be talking about ways to have a more effective justice system, and heavy sentencing is not the best way of preventing crime.”

Posted by Marcia Oddi on Wednesday, May 25, 2011
Posted to Courts in general

Courts - "Records suffice for breath evidence in DUI, court says"

Martin Finucane reported today in the Boston Globe in a story that begins:

The state’s highest court ruled yesterday that prosecutors in drunken driving cases do not have to call a technician to testify that the breath-analysis device used by police worked properly.

The Supreme Judicial Court rejected arguments by a woman convicted of drunken driving in Greenfield that the annual certification of the machine and accompanying records constituted testimony from a witness and thus required that the defense be given a chance to cross-examine the person who had prepared them.

The opinion in Commonwealth v. Zoanne Zeininger.

Posted by Marcia Oddi on Wednesday, May 25, 2011
Posted to Courts in general

Ind. Courts - Again on: "Magistrates failing to keep up with case loads"

Updating a list of earlier ILB entries, the most recent from Oct. 7, 2010, John Scheibel reports today in the NWI Times in a story that begins:

VALPARAISO | A Porter County magistrate who had amassed a large backlog of cases has tendered his resignation.

Magistrate James Johnson will stop hearing cases at the end of this week and will officially retire on Aug. 1, according to Porter Superior Court Judge Roger Bradford, who supervises Johnson. Johnson will use that time to clear the cases, Bradford said.

Johnson's backlog of cases came to light in July 2010 when the courts reported he had 97 cases he had not yet ruled on. A part-time probate commissioner was hired to help clear the backlog.

Posted by Marcia Oddi on Wednesday, May 25, 2011
Posted to Indiana Courts

Tuesday, May 24, 2011

Ind. Decisions - 7th Circuit issues another Indiana opinion in typescript

Last Friday the 7th Circuit released U.S. v. Sellers in typescript. Today the Court has released in typescript Roche Diagnotics v. Medical Automation Systems (SD Ind., Barker), an 8-page opinion by Chief Judge Easterbrook that concludes:

The judgment of the district court is modified to incorporate the 11 hold-separate conditions stated in this opinion. Alere and MAS can close their transaction if they respect both those conditions and the district court’s requirement that Roche receive its unimpaired period of exclusive use of MAS’s diabetes-product software. As modified, the judgment of the district court is affirmed.

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

Indiana Decisions - More on: A multiplicity of reactions to Barnes v. State

Updating this ILB entry from earlier today, this just released from the Governor's office:

May 24, 2011

Earlier today at Gov. Daniels’ media availability at IUPUI, reporters asked him for his thoughts about the recent Indiana Supreme Court decision regarding illegal entry. The governor said he was puzzled by the ruling.

To expand on that comment, David Pippen, the governor’s general counsel, said this afternoon the governor’s questions relate to the no retreat law the governor signed in 2006, which seems to be in conflict with the ruling and would trump the case law basis for the court’s determination. That statute was not raised during the course of the case. The no retreat law unequivocally strengthened the rights of Hoosiers to be secure in their homes, and the existence of the statute seems to provide ample reason for a rehearing.

-30-

Jane Jankowski
Governor’s Office

ILB: The Indiana "no retreat" law is discussed in this ILB entry from May 16th.

Posted by Marcia Oddi on Tuesday, May 24, 2011
Posted to Ind. Sup.Ct. Decisions

Law - "The nation’s biggest law firms are creating a second tier of workers"

Catherine Rampell has the front-page story today in the NY Times. It begins:

WHEELING, W.Va. — The nation’s biggest law firms are creating a second tier of workers, stripping pay and prestige from one of the most coveted jobs in the business world.

Make no mistake: These are full-fledged lawyers, not paralegals, and they do the same work traditional legal associates do. But they earn less than half the pay of their counterparts — usually around $60,000 — and they know from the outset they will never make partner. * * *

[This is] part of a fundamental shift in the 50-year-old business model for big firms.

Besides making less, these associates work fewer hours and travel less than those on the grueling partner track, making these jobs more family-friendly. And this new system probably prevents jobs from going offshore.

But as has been the case in other industries, a two-tier system threatens to breed resentments among workers in both tiers, given disparities in pay and workload expectations. And as these programs expand to more and more firms, they will eliminate many of the lucrative partner-track positions for which law students suffer so much debt. * * *

“For a long time the wind was at the back of these big law firms,” said William D. Henderson, a historian at Indiana University-Bloomington.

“They could grow, expand and raise rates, and clients just went along with absorbing the high overhead and lack of innovation. But eventually clients started to resist, especially when the economy soured.”

Here seems a good place to note this story from Elie Mystal of Above the Law, who had a post late yesterday headed "Senator Boxer Keeps Pressure On The ABA." It begins:
I’m telling you, the tide is turning against the American Bar Association and the weakness the organization shows when it comes to regulating law schools. People are starting to figure out that major American law schools purposely mislead prospective students about post-graduate outcomes. People are starting to figure out that the ABA hasn’t done enough to stop this practice. And people are starting to try to hold the ABA accountable for its failure to hold law schools accountable.

It’s not just former and current law students who are demanding changes. Right now the ABA is dealing with a U.S. senator who wants action from the organization.

That’s right, Senator Barbara Boxer is once again urging the ABA to do its job….

Senator Boxer first put the ABA on notice back in March. In a letter addressed to ABA president Stephen Zack, Boxer asked the ABA for its plans for reforming the system that law schools are currently using to mislead students about post-graduate outcomes.

The ABA responded with the same platitudes we’ve been hearing for some time now. They’ve got a committee, suggestions are being made, they’re working on it.

Read these in conjunction with the May 17th ILB entry headed ""Indiana Tech to open law school"."

Posted by Marcia Oddi on Tuesday, May 24, 2011
Posted to General Law Related

Indiana Decisions - A multiplicity of reactions to Barnes v. State,

Reactions and responses to the Supreme Court's May 12th opinion in Barnes v. State continue. Today State Senator Jim Banks posed this statement, headed "Time for a Judicial Re-Do?" Here is how it concludes:

The nature of our part-time legislature in Indiana has left many citizens feeling powerless. I've fielded many calls and emails from constituents who are worried that we can't stop this dangerous ruling from being implemented. Though we don't return to the Statehouse until next January, I am already working with other senators on drafting an amendment that will ensure our freedoms can't be encroached by unelected state Supreme Court justices.

Governors get to select a lawyer from a group vetted by a nominating commission. We citizens get to vote to keep them or throw them out by voting to retain them for another term. How many people will have their rights trampled before then?

While in the short term I'm committed to working with my fellow conservative legislators to restore these Constitutional rights, over the long term it is clear that Indiana needs to open a debate about judicial accountability. There are a number of options on the table-perhaps giving the people a voice on these nominations by requiring the Senate to consent to these appointments is appropriate (similar to Federal judges as well as the states of Delaware and New York). Another solution used in many states might be to elect justices to the bench rather than simple appointments.

The bottom line is that Hoosiers demand greater accountability across all levels and branches of government, and this ruling throws that need into stark relief. Join me and conservative Hoosiers across the state to make your voices heard on this issue, so we can fight back and prevent this attack on our liberties from taking hold in Indiana.

ILB thoughts: The ILB, through its recent postings, has attempted keep readers apprised of the range of reactions to the Barnes opinion. Here is how they seem to break down:

Posted by Marcia Oddi on Tuesday, May 24, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 2 NFP)

For publication opinions today (4):

In Wastewater One, et al. v. Floyd County Board of Zoning Appeals, et al., a 25-page opinion, Judge Brown writes:

Wastewater One, LLC (the “Utility”) and William A. Musselman (“Musselman,” and collectively with the Utility, the “Applicants”) appeal the Findings of Fact, Conclusions of Law, and Judgment in favor of the Floyd County Board of Zoning Appeals and Floyd County, Indiana (collectively, the “BZA”) affirming the BZA's denial of a conditional use permit for the expansion of a sewage treatment plant. The Applicants raise four issues which we revise and restate as:
I. Whether the BZA had jurisdiction over the Utility's proposal to expand the Plant;
II. Whether the requirements of the Floyd County Zoning Ordinance (the “Ordinance”) for evaluating conditional use petitions are contrary to Indiana law; and
III. Whether the court erred in affirming the BZA's denial of the conditional use petition.
We affirm.
Paternity of A.S.; B.S. v. E.M. , a 28-page, 2-1 opinion, Judge Crone writes:
On appeal, Father argues that the trial court abused its discretion by admitting the recordings, granting primary custody to Mother, and failing to sanction Mother for interfering with his parenting time. We conclude that the recordings, including the portions that Mother did not hear, were relevant to Father's attitude toward co-parenting. We also conclude that the trial court did not abuse its discretion by giving Mother primary custody because (1) there was overwhelming evidence that the parents cannot effectively co-parent; (2) the record supports the trial court's conclusion that Father was less willing to cooperate than Mother; and (3) the record supports the court's conclusion that A.S. would benefit from more time in Missouri because she could participate in educational programs on a consistent basis. Finally, we conclude that the trial court did not abuse its discretion by not finding Mother in contempt or ordering her to pay attorney fees because Father also violated court orders. However, Mother advances no reason why Father should not receive make-up parenting time. Therefore, we remand for the trial court to address the issue of make-up parenting time, but affirm in all other respects. * * *

NAJAM, J., concurs.
ROBB, C.J., concurs in part and dissents in part with separate opinion. [that begins, at p. 20 of 28] I concur in part and dissent in part. I concur with my colleagues' opinion regarding admission into evidence of recordings made by Father, and regarding the trial court's decision not to hold Mother in contempt or order her to pay attorney fees. For two reasons I respectfully dissent, however, from my colleagues' opinion affirming the trial court's order modifying custody and granting primary custody to Mother. First, I believe that the trial court's specific findings as to the parties' reluctance to cooperate or communicate are insufficient to support modification of custody to grant primary custody to Mother. Second and similarly, I believe that despite the parties' difficulty cooperating and communicating, the trial court clearly erred in modifying custody, thereby discouraging the parties from finding a way to work out their differences and encouraging their continued immature behavior.

In S.W. by P.W. v. B.K., a 7-page opinion, Judge Crone writes:
This case involves a developmentally disabled adult, S.W., whose sister sought a protective order on her behalf against a man who had repeatedly banged on S.W.’s apartment door and tried to enter. The trial court issued a two-year protective order forbidding the man from having contact with S.W. Nonetheless, the man twice returned to S.W.’s apartment within the five weeks that followed, and S.W. filed a petition for an order to show cause why the man should not be held in contempt for violating the protective order. She also sought attorney’s fees. The trial court denied her petition without a hearing. Thereafter, she filed a motion to correct error, the denial of which she now appeals. She asserts that the trial court denied her due process by failing to conduct a hearing on her contempt petition and that she should be exempt from paying the $250 appellate filing fee. We agree and therefore reverse and remand for proceedings consistent with this decision.
In Harold E. York v. State of Indiana , a 7-age opinion, Judge Baker writes:
We granted this interlocutory appeal in anticipation of addressing appellant-defendant Harold E. York’s claim that the trial court should have granted his motion to dismiss the charge of Failure to Register as a Sex Offender,1 a class D felony. York argues that changing the sex offender registration requirement from ten years to life is punitive and violates the prohibition against ex post facto laws.

Upon further reflection, we note that the charge against York was the result of his failure to register during the original ten-year period and his alleged failure to report a change in residence under the statute. Thus, the lifetime registration requirement is not at issue here, and we are compelled to dismiss this appeal. * * *

Notwithstanding York’s contentions regarding about the effect of the lifetime registration requirement and its purported unconstitutionality, we note that the State filed the charge against York in June 2008, alleging that he failed to list his fiancée’s house as his residence from “April 2007 through March 2008,” in violation of the residency requirements. Appellant’s App. p. 5. The dates alleged in the charging information with regard to York’s residency registration requirement encompassed the time period of York’s obligation to register under the original ten-year period. Put another way, the State did not allege that York had failed to register under the lifetime requirement that became effective in 2006. Rather, the State only asserted that York had violated the Registration Act because he failed to include his fiancée’s house as his residence.

As a result, because the lifetime registration requirement was not at issue when the State filed the charge against York, we must save that challenge for another day. Appeal dismissed.

NFP civil opinions today (1):

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

NFP criminal opinions today (1):

Christian D. Howard v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 24, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - More on "Murky times for Planned Parenthood: Local clinic joins others in state wary of new law’s consequences"

Murky indeed. Updating this ILB entry from May 15th, part of this list of earlier ILB entries, Robert Pear of the NY Times reported May 22nd in a long and comprehensive story that begins:

WASHINGTON — The Obama administration is raising serious objections to a new Indiana law that cuts off state and federal money for Planned Parenthood clinics providing health care to low-income women on Medicaid.

The objections set the stage for a clash between the White House and Gov. Mitch Daniels, a Republican, over an issue that ignites passions in both parties.

The changes in Indiana are subject to federal review and approval, and administration officials have made it clear they will not approve the changes in the form adopted by the state.

Federal officials have 90 days to act but may feel pressure to act sooner because Indiana is already enforcing its law, which took effect on May 10, and because legislators in other states are working on similar measures.

If a state Medicaid program is not in compliance with federal law and regulations, federal officials can take corrective action, including “the total or partial withholding” of federal Medicaid money. The mere threat of such a penalty is often enough to get states to comply. Actually imposing the penalty would, in many cases, hurt the very people whom Medicaid is intended to help.

The AP's Ken Kusmer had a companion story May 23rd. Here are some quotes from the long story:
The U.S. Centers for Medicaid and Medicare Services issued a statement saying it was reviewing Indiana's law and situations in other states threatening to withhold funds from abortion providers.

"Federal law prohibits federal Medicaid dollars from being spent on abortion services. Medicaid does not allow states to stop beneficiaries from getting care they need - like cancer screenings and preventive care - because their provider offers certain other services," the agency said. "We are reviewing this particular situation and situations in other states."

The statement, given to The Associated Press on Monday, was first reported by The New York Times.

The review appeared to pose the latest challenge to the contentious law signed by Gov. Mitch Daniels on May 10. The law makes Indiana the first state to deny Medicaid funds for general health services such as breast exams and Pap smears and affects more than $1 million in Medicaid funding for Planned Parenthood.

Planned Parenthood of Indiana President Betty Cockrum welcomed the federal review, saying Monday that it might provide a second avenue of relief if a federal judge decides not to grant the organization's request to block the law. Planned Parenthood argues in a federal lawsuit that statute is unconstitutional.

Cockrum also noted that the secretary of the Indiana Family and Social Services Administration, which oversees Medicaid in Indiana, said last month that the law could threaten $4 million in federal funds that help various family-planning groups in Indiana.

Indiana Attorney General Greg Zoeller issued a statement Monday saying his office would "continue to diligently represent" the state against Planned Parenthood's lawsuit. A hearing is set for June 6 before U.S. District Judge Tanya Walton Pratt, who has said she would rule by July 1.

"The State's position is that Planned Parenthood could set up separate corporate entities to provide abortions and Medicaid-eligible family planning services such that tax dollars do not wind up subsidizing abortions indirectly," Zoeller said.

Cockrum has said establishing separate entities would be "logistically challenging" and there was no guarantee that future Legislatures would not try to shut them down, too.

The state's non-partisan Legislative Services Agency also raised questions about the law. In a recent analysis, it noted that the Indiana Family and Social Services Administration said federal law requires state Medicaid plans "to provide any eligible individual medical assistance and that they can obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service(s) required."

Here is the LSA fiscal note for HEA 1210, as revised May 12, 2011.

Posted by Marcia Oddi on Tuesday, May 24, 2011
Posted to Indiana Law

Ind. Courts - "Turning up the heat on the court: Rally will protest ruling that people must let police enter home"

That is the headline to this story in today's Indianapolis Star about continued reaction to the Supreme Court's May 12th, 3-2 opinion in Barnes v. State, reported by Carrie Ritchie. Some quotes:

One man is trying to get the justice who authored the opinion removed. But the biggest outcry over the May 12 ruling might come Wednesday at a rally citizens have organized to protest the decision.

Will the court bow to mounting public pressure? Probably not, said Charles Geyh, a law professor at Indiana University-Bloomington who specializes in judicial conduct and ethics.

In fact, judges often face more scrutiny when they "kowtow" to the public, he said. "The judges take their jobs very seriously and work very hard not to be influenced by the sentiments of the moment." * * *

[Jeff Houk, a rally organizer,] also will be trying to garner support for a political action committee he formed to oust Steven David, the Supreme Court justice who authored the ruling.

In November 2012, people will be able to vote on whether to retain David, who was appointed to the state's highest court in the fall. Houk is urging people to vote him off the bench because of his stance on this case.

None of the Supreme Court justices will comment on the case or the fallout surrounding it because that would violate rules governing judicial conduct, Supreme Court spokeswoman Kathryn Dolan said.

Meanwhile, elected officials have been quick to speak out about the ruling.

Posted by Marcia Oddi on Tuesday, May 24, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Complaint against Hammond city attorney dismissed"

An odd story from Pete Nickeas of the NWI Times. As the story relates:

"The complaint was considered by this office and has been dismissed as not raising a substantial question of misconduct that would warrant disciplinary action," wrote G. Michael Witte, executive secretary of the Indiana State Supreme Court Disciplinary Commission.

"As this grievance was dismissed on its face as not raising a substantial question of misconduct, it does not require any formal response from you."

Requests for investigations normally remain confidential until the Supreme Court Disciplinary Commission decides whether to file a formal complaint against the lawyers in question.

[Complainant] Rocek provided a copy of his complaint to The Times. [Attorney] Kantar provided a copy of Witte's letter. * * *

Kantar criticized Rocek for releasing the complaint before the state agency ruled on its merits.

Posted by Marcia Oddi on Tuesday, May 24, 2011
Posted to Indiana Courts

Courts - Still more on seizing of domain names

Updating this ILB entry from May 9th, Wired's David Kravets has a new story headed "Feds Seize 8 More Domains in Piracy Crackdown." Take a look, I assume the graphic is the actual screen you will get if you try to access one of the seized website addresses ...

Posted by Marcia Oddi on Tuesday, May 24, 2011
Posted to Courts in general

Monday, May 23, 2011

Ind. Decisions - House and Senate Republican Leaders Leaders Ask Court To Reconsider Ruling

This just in, for immediate release:

President Pro Tempore of the Senate, David C. Long, and the Speaker of the House, Brian C. Bosma, issue the following joint statement:

After reviewing the decision of the Indiana Supreme Court in Barnes v. State of Indiana, we respectfully request that the Court grant a rehearing for the purpose of clarifying its decision.

We have heard overwhelmingly from our Hoosier constituents, and legal scholars, that the language used to address the specific facts of this case may have unintentionally erased hundreds of years of common law precedent on the topic of reasonable resistance to unlawful entry.

A more narrowly-tailored opinion could preserve the long-established private property rights of our citizens while continuing to protect the safety of our law enforcement officers and citizens where unique circumstances exist, such as a domestic disturbance.

Many individual members of the General Assembly have begun work on potential legislation to restore these private property rights; if the Court did not intend to rescind this right, except in very limited circumstances where an emergency exists, a clarification from the Court would be extremely helpful.

Posted by Marcia Oddi on Monday, May 23, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - More on: SCOTUS decides major prison case today

Updating this ILB entry from this morning on the SCOTUS decision today in Brown v. Plata, the WSJ Law Blog has this new entry, headed "SCOTUS Ruling Could Trigger Release of Thousands of California Inmates." As many as 46,000.

Posted by Marcia Oddi on Monday, May 23, 2011
Posted to Courts in general

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

For publication opinions today (3):

In Stephen Robertson, et al. v. B.O., et al. , a 14-page opinion, Judge Riley writes:

Issue. Whether the [Indiana Patient’s Compensation Fund] can introduce evidence concerning the existence and compensable nature of B.O.’s damages after B.O. entered into a settlement with the healthcare provider settling his claim of medical malpractice. * * *

Health care providers in Indiana may settle medical malpractice claims for a multitude of reasons, like concerns over the complexity of the case that might make it difficult for a jury to understand the issues, the weaknesses in a case that may be raised by members of the medical review panel notwithstanding a favorable opinion, and the relative cost of defending a medical malpractice claim through extensive scientific, medical, and other expert testimony. The admission of liability and acceptance of proximate cause by way of a settlement between the claimant and the health care provider does not obligate the Fund to compensate claimants for damages that are of a non-compensable nature. See Dillon, 597 N.E.2d at 973. As such, the Fund cannot be precluded from introducing relevant evidence on the compensable nature and event of a claimant’s injury merely because the health care provider elected to settle the underlying medical malpractice claim and liability has been established by operation of I.C. § 34-18-15-3. Holding otherwise would force health care providers to litigate the compensable nature and extent of the alleged injury in the underlying action or forfeit the Fund’s ability to present such evidence in calculating the amount of excess damages, if any, recoverable in the secondary action against the Fund. Therefore, we reverse the trial court and conclude that, here, the Fund can present evidence allegedly establishing that B.O. does not have spastic diplegia or that his symptoms are not due to an insult at birth.

In Jimmie E. Jones, Jr. v. State of Indiana , an 8-page opinion, Judge Bailey writes:
Jones’s theory of defense was self-defense. Nonetheless, he now argues that the jury, if properly instructed, could have found that he intended only to batter Takash, who died during the commission of that battery, or that he recklessly killed Takash, but did not do so knowingly. * * *

Although the State cannot draft an information that forecloses an instruction on an inherently lesser included offense of the crime charged, the State may foreclose instruction on a lesser offense that is not inherently included in the crime charged by omitting from a charging instrument factual allegations sufficient to charge the lesser offense. Wright, 658 N.E.2d at 569-70. See also Jones v. State, 438 N.E.2d 972, 975 (Ind. 1982) (observing that absolute discretion rests in the State to determine the crime(s) charged and that the State can through drafting foreclose to the defendant a tactical opportunity to seek a conviction for a lesser offense).

Jones was charged with knowingly killing Takash. The information did not assert a battery. In these circumstances, Involuntary Manslaughter was not a factually included lesser offense of Murder. Cf., Roberts v. State, 894 N.E.2d 1018, 1029 (Ind. Ct. App. 2008) (although the method of murder was choking and suffocation, it was within the State’s discretion to draft the charging information with no reference to a battery, foreclosing the opportunity for Roberts to seek a conviction on a lesser offense), trans. denied.

In Willie McCain, Jr. v. State of Indiana , a 12-page opinion, Judge Vaidik writes:
Willie McCain Jr. appeals his conviction for Class B felony dealing in cocaine. McCain was accused of selling cocaine to a confidential informant. The informant avoided drug charges of her own in exchange for her participation in this case. At trial, McCain sought to elicit the potential sentence avoided by the informant for her cooperation. The trial court precluded discussion of any specific sentence that the informant might have faced had she been convicted on her non-filed drug charges. In addition, the confidential informant had a prior theft conviction which was vacated pursuant to an agreed order shortly before McCain's trial. McCain sought to elicit and argue that the conviction was set aside to sweeten the informant's deal and to “clean up” her criminal background before she testified. The trial court prohibited any such discussion as unsubstantiated, potentially misleading, and unfairly prejudicial. We conclude that the trial court's rulings were erroneous and violated McCain's right to cross-examination, but we find the errors harmless beyond a reasonable doubt. We affirm the trial court's judgment of conviction.
NFP civil opinions today (1):

Quan Ning Huang v. Tanas B. Donev (NFP)

NFP criminal opinions today (7):

James Andrew Foxworthy v. State of Indiana (NFP)

Jack M. Estes, II v. State of Indiana (NFP)

Ronald Hollin v. State of Indiana (NFP)

Joseph Cree v. State of Indiana (NFP)

Johnny Baptiste v. State of Indiana (NFP)

Donald Mallard v. State of Indiana (NFP)

Russel F. Cowherd v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 23, 2011
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS decides major prison case today

And, as noted by Amy How of SCOTUSblog: "Justice Kennedy has apparently attached photos to his opinion in Brown v. Plata (which when argued was known as Schwarzenegger v. Plata)."

Here is the SCOTUSblog backround page on Plata. A quote:

Plain English Issue: Does a court order requiring California to reduce its prison population to remedy unconstitutional conditions in its correctional facilities violate the Prison Litigation Reform Act?
Answer: No.

Here is the initial AP story.

Posted by Marcia Oddi on Monday, May 23, 2011
Posted to Courts in general

Ind. Decisions - More on 4th amendment

More re our Supreme Court's decision in Barnes v. State, and the SCOTUS' recent ruling in U.S. v. King.

The Indianapolis Star this morning published this letter from Jeremiah Morrell, Central Committee Representative, Libertarian Party of Indiana (District 6), New Castle:

The Indiana Supreme Court in a 3-2 decision (Barnes vs. State) recently found that we have been wrong about our interpretation of the Fourth Amendment. Of all of the constitutional arguments that we could get in, this one seems to be the most ridiculous. As every Hoosier sixth-grader can tell you, the Fourth Amendment keeps police officers out of our homes, unless they are invited or have a valid warrant.

I am shocked that we even have to debate the interpretation of the right of the people to be secure in their persons, houses, papers and effects.

Indiana Supreme Court Justice Steven David wrote, "We believe . . . a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence."

Why do we have to redefine the Fourth Amendment? What is a modern interpretation of it? I don't believe that there is any room for nuance in the interpretation of such a fundamental right, as secure in your own home.

Once a police officer (or any government agent) crosses the threshold into a home without a valid warrant, that right has been violated. Of course, citizens have the right to appeal this intrusion in court at a later date, but once the barrier into a secure home has been broken, the damage has been done. No court can undo the violation of one of our most basic rights.

Hoosiers need to be screaming about this decision from Evansville to Angola, demanding that our legislature and governor work to repair this complete disregard of our rights. And we can all hope that the U.S. Supreme Court overturns this ridiculous decision before we go any further down the slippery slope of government intrusion.

The Racine WI Journal Times had a Sunday editorial that included:
May has been a bad month for the Fourth Amendment protections against unreasonable searches and seizures.

The constitutional right to be secure in one’s own home got cuffed around by the Indiana Supreme Court and the U.S. Supreme Court in two different cases.

In Indiana, the justices ruled 3-2 that people don’t have the right to resist police officers who enter their homes illegally — with no warrant, no consent or without exigent circumstances. * * *

The U.S. Supreme Court ruling involved the arrest of a man in an apartment in Lexington, Ky. Police chased another man who had sold crack cocaine to an informer into the apartment complex. They lost track of him, but smelled marijuana in the apartment hallway. They pounded on a doorway and yelled “Police,” and heard movement inside. The police said they were coming in and broke down the door and arrested the occupant — who was not the man they had originally been seeking.

Exigent circumstances allow police to break in when, for instance, they hear someone screaming for help. With the 8-1 backing of the Supreme Court, that standard now allows police entry at the sound of a flushing toilet or some other indication that residents are scurrying about to hide drugs.

Residents who “attempt to destroy evidence have only themselves to blame” when police burst in, wrote Justice Samuel Alito Jr. for the majority.

The lone dissent came from Justice Ruth Bader Ginsburg, who said she feared the ruling gave police an easy way to skirt Fourth Amendment protections against unreasonable searches and seizures. She said the amendment’s core requirement is that officers have probable cause and a search warrant.

“How ‘secure’ do our homes remain if police, armed with no warrant can pound on doors at will ... and forcibly enter?” she asked.

How, indeed? * * *

Sadly, the nation has come a long way from the succinct and clear protections afforded by the Constitution. The Fourth Amendment is simple enough. It says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants should issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In 2011 America you still have that right, at least in theory. But to be on the safe side, it would be best to sit quietly if the police come knocking at your door. Whatever you do, do not flush the toilet.

If you expect your home to be a castle, put in a moat.

SCOTUSblog's Monday roundup includes this:
The weekend’s coverage touched on controversial recent decisions. The editorial pages of the Seattle Times and the Toledo Blade expressed disapproval of last week’s ruling in Kentucky v. King, in which the Court held that the exigent circumstances exception to a warrantless search applies as long as police do not themselves violate or threaten to violate the Fourth Amendment. The Blade described the decision as “ominous,” while the Times argued that it “leaves the Constitution’s protection against warrantless searches as a symbolic right, easily sidestepped in practice by police.”
An editorial in today's LA Times is headed "Creating a 4th Amendment loophole: The Supreme Court failed to keep a lid on police excesses with its ruling this week in a Kentucky drug case."

Posted by Marcia Oddi on Monday, May 23, 2011
Posted to Ind. Sup.Ct. Decisions

Law - "States' immigration efforts fizzle"

A lengthy article today, dateline Miami, here in the South Carolina Herald, reported by Laura Wides-Munoz, AP Hispanic Affairs Writer, and other contributors including Ken Kusmer in Indy, explains that nearly half the states "considered Arizona-style enforcement measures, up from just six in 2010, [but] in legislature after legislature, nearly all the most punitive measures failed." From deep within the story:

Following the failure of the recent Dream Act in Washington - which would have provided a path to legalization for qualified illegal immigrant students and other young adults - several states adopted legislation this session that helps illegal immigrant students. Maryland approved in-state college tuition for illegal immigrants, Illinois is likely to set up a private scholarship fund for them, and Connecticut expanded in-state tuition for graduate school. An in-state tuition bill in Oregon passed the Senate but has yet to reach the House floor.

Arizona lawmakers ordered school districts to report students' residency, but that was geared toward keeping children who live across the Mexican border from enrolling in Arizona schools.

Only Indiana passed a law to prohibit in-state tuition for those in the country illegally, a largely symbolic move.

Or, as Deanna Martin of the AP bureau here tweeted this morning: "Nearly every state took on #immigration this year, but only #Indiana enacted in-state tuition law."

Posted by Marcia Oddi on Monday, May 23, 2011
Posted to General Law Related

Law - ABA sentencing reform article

Referenced here in the Sentencing Law Blog.

Posted by Marcia Oddi on Monday, May 23, 2011
Posted to General Law Related

Ind. Decisions - Transfer list for week ending May 20, 2011

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 13, 2011 list.]

Here is the Clerk's transfer list for the week ending May 20, 2011. It is two pages (and 20 cases) long.

Two petitions to transfer were granted:

__________

The ILB archive now contains over seven years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Monday, May 23, 2011
Posted to Indiana Transfer Lists

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

Here is the answer to "What did you miss over the weekend from the ILB?

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, May 22, 2011:

From Saturday, May 21, 2011:

From Friday afternoon, May 20, 2011:

Posted by Marcia Oddi on Monday, May 23, 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 5/23/11):

Next week's oral arguments before the Supreme Court (week of 5/30/11):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/23/11):

Tuesday, May 24th

Wednesday, May 25th

Thursday, May 26th

Next week's oral arguments before the Court of Appeals (week of 5/30/11):

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

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


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

Posted by Marcia Oddi on Monday, May 23, 2011
Posted to Upcoming Oral Arguments

Sunday, May 22, 2011

Ind. Courts - "Judge offers ‘accountability court’ to help ex-inmates stay out of jail"

A lengthy story today in the Bloomington Herald-Times ($$), reported by Laura Lane, includes this section:

For the past few years, at 8 o’clock on Wednesday mornings, Monroe Circuit Judge Kenneth Todd has convened what he calls “accountability court” at the Justice Building, most often in Room 307.

The sessions are not on the official court docket for the day. The people who show up don’t have to be there; no arrest warrant will be issued if they fail to appear. Todd does not wear his judicial robe, and he usually shows up a few minutes late, coffee mug in hand.

What follows is more like fatherly counseling than scolding. Even though Todd sits high up on his judicial bench and the people coming in to see him are seated in the witness chair, they stand on even and common ground.

Shame, secrets and successes spill out.

“It’s a mix of encouragement and accountability,” said Todd, a Monroe County judge since 1979. “There are some people for whom I thought there ought to be some kind of accountability session, where a person can check in with someone to make sure they had done the things they need to do.”

Todd was instrumental in establishing the county’s drug court, where he learned the value of rewards and consequences through a program that ushers defendants toward sobriety and responsible living.

“It is apparent to me that some folks have not had many opportunities in life to hear they have done a good job,” Todd said. “It’s hard to keep yourself motivated through life if you don’t get any pats on the back.”

But it’s not easy to encourage criminals who seem doomed to fail, to relapse into illegal activities, over and over again.

“I have sent most of these people to prison,” Todd said of accountability court participants.

As a judge, he spends a lot of time “telling people how they have not complied and dealing with the consequences of that,” Todd said.

On accountability court mornings, he never knows who will show up. Berry, Grubb and Sheffer are among the current regulars. None of them has a car to get them to court; Berry and Grubb get rides from friends or family, and Sheffer motors in from out on Hartstrait Road on her yellow scooter.

“Coming here, there are no tangible rewards for them,” Todd said. “No charges will be dismissed if they complete a program, no one’s probation will be cut for showing up. It’s an informal meeting where I talk to them.”

It takes no resources. It costs nothing.

Posted by Marcia Oddi on Sunday, May 22, 2011
Posted to Indiana Courts

Ind. Gov't. - "A look at Tippecanoe County Jail Journal & Courier analysis of 1,109 jail complaints finds inadequate responses, conditions"

Lafayette Journal Courier reporter Sophia Voravong looked at grievances filed at the Tippecanoe County jail from 2007 through 2010 to compile this lengthy investigative story, along with several related stories.

Posted by Marcia Oddi on Sunday, May 22, 2011
Posted to Indiana Government

Ind. Courts - "Controversial court ruling produces more questions than answers"

Dan Carden of the NWI Times reported May 21st in a story beginning:

INDIANAPOLIS | In his 36 years of working in law enforcement, former LaPorte County Sheriff Jim Arnold doesn't believe he ever knowingly entered a home illegally.

On the one hand, Arnold doesn't understand the furor that has erupted over the Barnes v. State ruling May 12 by the Indiana Supreme Court that Hoosiers have no right to resist a police officer who enters their home illegally because police don't go around entering homes illegally.

"I was always taught, and I taught at the academy for eight years, if there's questions, go to the court, let the court make the decision and you're always on firm ground," Arnold said.

On the other hand, as a current Democratic state senator from LaPorte, Arnold said he and his constituents aren't satisfied with the Supreme Court recommendation that a person who does have police enter his or her home illegally should sue the police.

"It's such a high-priced remedy that the average citizen — how's he going to afford it?" Arnold said. "Your counties and cities and states have kind of got bottomless pits, so to speak, to defend themselves."

At the same time, Arnold doesn't want to see a police officer killed by a potentially overzealous person trying to stop an entry he believes is illegal but is actually perfectly legitimate.

A few paragraphs later:
The senator said he is working to arrange a meeting with the justices to get a better understanding of what the court was trying to say.

Arnold said depending on what the justices tell him and what develops over the next few months, he'd consider signing on to potential legislation sponsored by state Sen. Mike Young, R-Indianapolis, and supported by state Sen. Ed Charbonneau, R-Valparaiso, that would have the effect of overturning the ruling.

A story published May 21st reported by Niki Kelly of the Fort Wayne Journal Gazette concludes:
Meanwhile, a Fourth Amendment expert at the IU Maurer School of Law in Bloomington said the decision was sound.

“The Supreme Court’s decision means that we can’t allow people to take the law into their own hands,” professor Craig Bradley said. “The law should not allow people to assault police whenever they claim that they ‘thought’ the entry was illegal.”

He went on to say that “if the defendant thought the police officer’s entry into his home was illegal, he has plenty of opportunities to raise that issue through the court system. The risk of harm to both the police and the defendant is too great to allow people to take matters into their own hands.”

A long WANE TV report on May 20th includes this:
"The court could have decided on [just this case], but instead they threw out the citizens' right to protect their property themselves," [State Sen. Mike Young] said. "I don't think it's right to force a citizen to go through the court system versus merely blocking the door of their property."

Young plans on writing an amicus brief asking the court to reconsider its ruling.

"That will get changes more quickly than going into session," Young said.

But, Young still plans to draft legislation to change Indiana's self defense laws.

"I want to prevent future courts from ruling that way. If common law is upheld as being thrown out, then we have to change our statutes," Young said.

Posted by Marcia Oddi on Sunday, May 22, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - "Losing Kentucky counties in Ten Commandments cases face growing legal bills to ACLU"

From the Lexington Kentucky Herald-Leader, a long story by Bill Estep reported on May 19th:

SOMERSET — The legal bill continues to mount for two south-central Kentucky counties from their lengthy, unsuccessful fight to post copies of the Ten Commandments in their courthouses.

This week, U.S. District Judge Jennifer Coffman awarded an additional $23,366 in attorney fees and costs to the American Civil Liberties Union of Kentucky for its work in challenging the displays, which were ruled unconstitutional.

Pulaski and McCreary counties now owe the ACLU a total of $456,881, nearly all of it for attorney fees. That figure doesn't include mounting interest.

It's not clear how the two counties would pay the bill, officials from both said Wednesday.

The judgment is not covered under McCreary County's insurance policy, and the relatively poor county — hard-pressed to provide services as it is — has nothing extra in the budget this fiscal year or next to pay the bill, Judge-Executive Doug Stephens said.

There will be "a whole lot of scrambling" to find money when it comes time to finally pay the bill, Stephens said.

Posted by Marcia Oddi on Sunday, May 22, 2011
Posted to Courts in general

Saturday, May 21, 2011

Ind. Courts - "New law gives juvenile judges means to intervene early"

This story by Maureen Hayden of CNHI news, subheaded "New law gives juvenile judges means to intervene early", reports:

INDIANAPOLIS — A new Indiana law will give juvenile court judges some power to intervene with troubled children before they end up as defendants in the criminal system.

The law stems from an innovative program launched by a central Indiana judge who’s convinced an increase in preventative action will decrease the punitive measures he has to dole out. The legislation, which goes into effect July 1, allows a juvenile court judge to use court resources to set up and coordinate voluntary mentoring and tutoring programs for children and teenagers identified by teachers and others as at-risk for failure, expulsion or other disciplinary action.

“We don’t need to wait ‘till something bad happens to help a child,” said Hamilton Superior Court Judge Steve Nation, who set up a model program in Westfield, on which the new law is based.

Driving the Westfield program was the increasing caseload that Nation saw in juvenile court. He said many of the juveniles who landed in the court system had dropped out or been expelled from school.

“We needed to find a way to intervene before they got in front of me,” Nation said.

Also driving it was a 2009 law passed by the state legislature that opened the door for Nation to work with local city and school officials to establish the Westfield program.

That 2009 law mandated Indiana school districts work with parents and the juvenile justice system to craft student discipline policies that rely on suspensions and expulsions as a last resort. It gave school districts until July 1 to come up with their own plans as to how to do that.

Both laws depend on early-intervention programs that are well-coordinated and put the best interests of the child first. That’s not easily done, Nation said, but it’s critical to prevent children from falling through the cracks.

ILB: The ILB would love to link to the relevant provisions of these 2009 and 2011 laws, but cannot locate either of them... Suggestions?

Posted by Marcia Oddi on Saturday, May 21, 2011
Posted to Indiana Courts

Ind. Courts - More on "State begins to lay out case for Bisard blood evidence"

Updating yesterday's entry, Charles Wilson of the AP reported last evening:

The medical assistant who drew blood from Bisard after the Aug. 6 crash that killed Eric Wells testified Friday during a five-hour hearing. She insisted that she followed proper procedure, even though she had to start over after using the wrong kind of antiseptic swab and that blood vials had to be brought from another clinic.

Michelle Maga said she drew Bisard's blood according to procedures outlined in a document at the occupational health center. She acknowledged she hadn't looked at the paper since she was first hired 2 1/2 years ago and wasn't certain at first which of three different documents applied.

But defense attorney John Kautzman said she wasn't qualified to draw Bisard's blood, despite her associate's degree, because medical assistants aren't one of the professions that state law allows to draw blood for drunken driving tests if it isn't done in a hospital.

Since she wasn't a nurse, doctor, EMT or paramedic, and the blood draw wasn't done in a licensed hospital, the test is inadmissible and the case against Bisard falls apart, Kautsman said.

Deputy prosecutor Denise Robinson said those strict requirements were superseded by another, broader chapter of state law that made the blood test admissible, and cited case law to support her argument.

Kautzman called the state's arguments "a very winding road" and accused prosecutors of "cherry picking" portions of statutes to support their argument.

Judge Grant Hawkins said he will rule on whether to dismiss the case May 31.

Some quotes from Carrie Ritchie's story in this morning's Indianapolis Star:
A Marion Superior Court judge will decide May 31 if a blood test that shows Bisard was drunk at the time of the crash was legally administered and can be used in court.

But the decision likely won't end the argument over the future of the drunken-driving charges against him.

Even if Marion Superior Court Judge Grant Hawkins determines the blood test was administered legally, both sides might still have to argue whether the blood test was scientifically accurate.

Either side also could appeal Hawkins' ruling, which Hawkins' has acknowledged is likely, and that would delay the case's progression toward a trial.

Bisard's six drunken-driving charges stem from a blood test showing his blood-alcohol content at the time of the crash was .19 percent, more than twice the limit under state law at which a driver is considered intoxicated.

The crash killed Eric Wells, 30, and severely injured Mills and her fiancé, Kurt Weekly, 44.

Bisard's attorney claims that the woman who drew Bisard's blood did not have the level of expertise that a statute requires to perform a forensic blood test.

Attorney John Kautzman, who's representing Bisard, did his best Friday to poke holes in the testimony of Michelle Maga, the medical assistant who performed the test.

Kautzman pointed out that Maga didn't follow some of the procedures outlined by the medical center where she worked and that she almost botched the blood test by using alcohol to clean one of Bisard's arms. She testified that she realized her mistake before she continued with the test.

Prosecutors argued that other statutes and case law trump the statute Kautzman cited and said that Maga was qualified to draw Bisard's blood.

If Hawkins determines the blood test can't be used in court, prosecutors will have to appeal his decision or drop six of the seven felony charges they filed against Bisard earlier this year.

Former Marion County Prosecutor Carl Brizzi dropped the drunken-driving charges last year because he thought the blood test was administered improperly. But Terry Curry, Brizzi's successor, refiled those charges shortly after he took office earlier this year.

Curry's staff is confident that the blood draw can be used in court and that the drunken-driving charges will stick.

Posted by Marcia Oddi on Saturday, May 21, 2011
Posted to Indiana Courts

Friday, May 20, 2011

Ind. Courts - "State begins to lay out case for Bisard blood evidence"

Carrie Ritchie of the IndyStar tweeted a few minutes ago:

Attys finally going over their arguments @ the #Bisard hearing. Lots of very technical stuff & splitting hairs in statutorial interpretation
Here is the very detailed WISHTV coverage of today's hearing.

Here is the Star's site for background on the Bisard case.

[More at 6:30 pm] Richie now tweets: "#bisard decision coming May 31"

Posted by Marcia Oddi on Friday, May 20, 2011
Posted to Indiana Courts

Ind. Decision - 7th Circuit releases Indiana opinion in typescript form

In U.S. v. Sellers (ND Ind., Lozano), a 22-page opinion notable both for its early release, but also for the fact that the 3-judge panel includes "The Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme Court (Ret.), sitting by designation," Judge Rovner writes:

In this court, Sellers argues that the district court deprived him of his Sixth Amendment right to choice of counsel by failing to grant a continuance, that the court erred in denying his motion to suppress evidence gathered pursuant to the search of his vehicle, and that the government lacked sufficient evidence at trial to prove him guilty beyond a reasonable doubt of the drug offense. Because we find that Sellers was indeed denied his Sixth Amendment right to counsel of his choosing, the judgment of the district court is vacated and the case remanded for a new trial. We need not address Sellers’s other issues presented for review.

I. Our holding obviates the need to detail the facts surrounding Sellers’s criminal activity and arrest. Instead, we focus on the particulars surrounding Sellers’s choice and retention of counsel, and the district court’s response. * * *

[ILB: Here is a sample of the opinion, this from pp. 17-18]

The record provides no evidence that the court balanced any of these circumstances against the needs of fairness and the demands of its calendar. See Gonzalez‐Lopez, 548 U.S. at 152. It seems instead that the court stood on unyielding principle — the principle that new counsel must “take the case as he finds it;” the principle that continuances will not be granted for those who request them at the eleventh‐hour and miss other deadlines; and the principle that delay of one case will unfairly backlog other cases.

In addition to the more compelling “eleventh‐hour” and court scheduling rationales articulated by the district court, its opinion and oral rulings are riddled with indications of generalized annoyance with defendant’s counsel that smack of an arbitrary application of the rule as retribution for both counsel’s own errors, and the errors of others. Most strikingly, the district court confessed:

I also ran into the problem where there were other cases with Illinois counsel, who just happened some were Illinois counsel, and they were counsel that were appearing at the 11th hour and asking for continuances because of new counsel. So if I got excited with you, that was one of the reasons you caught my wrath because of the dilemma that was being caused by that.
R. 36, Tr. 5/12/08 at 5. There can be no more arbitrary and unreasonable application of a rule than as punishment for the missteps of another lawyer in an unrelated case. There were plenty of other indications that the court was simply annoyed with Oppenheimer. * * *

As a final matter, on May 9, 2011, Sellers moved this court for a temporary release on bond pending appeal. That motion to this court is now moot, but in light of the exigent situation regarding Sellers’s mother and her declining health, the district court shall construe that motion as one made to it and shall decide the motion with all due haste.

The judgment and sentence below are VACATED, and this case is REMANDED for a new trial, including all pre‐trial proceedings. The mandate shall issue immediately.

Posted by Marcia Oddi on Friday, May 20, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - AG Zoeller supports rehearing in Fourth Amendment case

Indiana Attorney General Zoeller has just issued this press release:

INDIANAPOLIS – Today Indiana Attorney General Greg Zoeller said he supports a rehearing of the Richard L. Barnes v. State case in the Indiana Supreme Court due to concerns that the Court ruled too broadly when it found that citizens have no right under common law to reasonably resist police unlawfully entering their homes.

“I support a rehearing of the case to allow for a more narrow ruling that would continue to recognize the individual right of reasonable resistance to unlawful entry. In our brief and argument to the Indiana Supreme Court last fall, my office did not advocate for the type of ruling the Court issued last week. I believe a reconsideration is appropriate. A rehearing and a new ruling would afford the Supreme Court the opportunity to clarify any misperceptions regarding people’s Fourth Amendment right to be secure in their homes against unreasonable searches and seizures -- even against unlawful entry by police,” Zoeller said.

“In supporting a rehearing, the State will continue to argue that Barnes’ convictions should be upheld, but on more narrow grounds. We contend that under the circumstances, the police entry of Barnes’ residence was legal: The officers responding to the 911 call sought to avoid leaving the alleged victim alone inside with the defendant after a confrontation outside. So while there is no right to commit battery against police, I believe the individual has the right to shut the door, stand his ground and communicate with police without engaging in an altercation. In balancing the perils of domestic violence with respect for law enforcement, I will continue to advise our police clients to respect people’s Fourth Amendment rights,” Zoeller said.

After the Indiana Supreme Court’s 3-2 ruling last week upholding Richard L. Barnes’ convictions for battery on a police officer and resisting law enforcement, Barnes’ defense indicated publicly they would ask the Court to reconsider its ruling and conduct a new hearing. The Attorney General’s Office represents the prosecution when criminal defendants appeal their convictions and sentences. Because this is an unusual case, Zoeller -- in responding to the Court’s decision -- supports allowing a petition for reconsideration so that both sides can make new arguments. Zoeller will argue for keeping Barnes’ convictions but scaling back the legal impact of the case upon future cases, consistent with judicial restraint.

Barnes has until June 13 to file a petition for rehearing to have the Indiana Supreme Court reconsider its decision.

Posted by Marcia Oddi on Friday, May 20, 2011
Posted to Ind. Sup.Ct. Decisions

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

In Digitech Computer v. Trans-Care, Inc. (SD Ind., Hussmann, Magistrate Judge), a 13-page opinion, Judge Wood writes:

Trans-Care, an Indiana company that furnishes ambulance and other medical transportation services, wanted to replace its dispatch and billing software. After looking around, it chose Digitech Computer for the job. The two executed a software licensing agreement, but it was not long before the deal went sour. The software did not work as Trans-Care expected, and so Trans-Care attempted to exercise an option to terminate the agreement. Digitech believed that Trans- Care had no such option and that its attempted termination was a breach of the contract. It sued, and Trans-Care shot back with a counterclaim for fraud. The court, acting through a magistrate judge presiding by the consent of the parties under 28 U.S.C. § 636(c), dismissed Trans-Care’s claim for fraud and found for Digitech on the breach of contract claim. The court then awarded Digitech fees under the contract, including attorneys’ fees for pursuing the contractual damages. It refused, however, to award Digitech any attorneys’ fees for defending the counterclaim. Both parties appeal. Trans-Care challenges the decision on fraud, breach of contract, and the amount of damages awarded. Digitech challenges the limited award of attorneys’ fees. We affirm the decisions on fraud and breach of contract, but we vacate the damages award and remand for further proceedings. * * *

As Digitech drafted the contract, the doctrine of contra proferentem directs a result against Digitech. MPACT Constr. Grp., LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d 901, 910 (Ind. 2004) (“When there is ambiguity in a contract, it is construed against its drafter.”). Thus, the contractual language should be read to limit attorneys’ fees only to the breach of contract action. And in any event, the fact that Digitech’s award on the breach of contract has been greatly reduced will require a fresh look at its attorneys’ fees award.

Therefore, we AFFIRM the decisions on fraud and breach of contract, but VACATE the damages awarded and REMAND for a new calculation of damages and fees in accordance with this opinion.

Posted by Marcia Oddi on Friday, May 20, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court rules in Charlie White case [Updated]

In an order in Charlie White, et al. v. Indiana Democratic Party, which was just posted but has a filing time of 9:00 am today, the Supreme Court rules:

Having considered the request for emergency transfer, and being duly advised, this Court GRANTS the Motion to Transfer and assumes jurisdiction over this appeal. The Clerk is directed to assign this appeal a Supreme Court cause number and transfer the chronological case summary from the current Court of Appeals cause number to the new cause number.

The Court DENIES White's Motion for Stay. The Court GRANTS the Indiana Democratic Party's Motion to Dismiss and DISMISSES this appeal, concluding that the trial court has not entered a final judgment. Ind. Appellate Rule 2(H); Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003) (“a final judgment 'disposes of all issues as to all parties thereby ending the particular case'”)

To the extent the trial court might certify its orders of April 7 and May 2, 2011, for discretionary interlocutory appeal in the future pursuant to Appellate Rule 14(B)(1), this Court retains jurisdiction to consider whether to permit such an appeal under Appellate Rule 14(B)(2). However, this Court would be disinclined to accept such a discretionary interlocutory appeal in light of the benefits to be obtained by prompt resolution of all of the matters now pending.

In other words, White's request to stay this action until after the criminal trial, is denied. And this appeal is not timely, because the Commission has not made a final decision yet.

[More] Here is Carrie Ritchie's final IndyStar story, from the May 21st edition. She reports:

The Supreme Court agreed with the Democrats' claim that the Marion Circuit Court's rulings didn't constitute a final judgment, so its orders can't be appealed.

The court also denied White's request to halt the commission's investigation until his criminal case in Hamilton County is resolved. White faces seven felony charges, including three of voter fraud.

Bill Groth, who represents the Indiana Democratic Party, called the Supreme court's ruling a significant victory for the Democrats because it will allow their challenge to proceed without delay.

"The court has said to the recount commission, 'The ball's in your court, we're not going to interfere, no appellate court is going to interfere, until you finish your business.' "

Posted by Marcia Oddi on Friday, May 20, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Indiana State Bar Association releases statement on Barnes decision

The ISBA, the single largest legal organization in the state, with more than 12,000 members, has just released this statement

INDIANAPOLIS (May 20, 2011) - On May 12, the Indiana Supreme Court issued a decision in Richard L. Barnes v. State of Indiana that has resulted in threatening phone calls and emails directed toward the judiciary and law enforcement. Every day our courts issue opinions with which people disagree – even vigorously. While those who disagree with the opinion have a right to criticize it, the Indiana State Bar Association encourages that such criticism be in a respectful manner, excluding personal and inflammatory attacks on individual judges and law enforcement officials.

Our democracy depends on an independent judiciary supported in the exercise of its constitutional obligation to decide cases fairly and dispassionately. Those decisions must be made according to law, without regard to public pressure and fear of political reprisal. In the coming weeks, the Indiana Supreme Court may be asked to reconsider the decision through a petition for rehearing. The case might also be appealed to the U.S. Supreme Court. These are appropriate means to challenge the decision; threats and personal attacks are not.

Posted by Marcia Oddi on Friday, May 20, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

Paternity of M.W.; K.W. v. B.J. is an 11-page opinion (including a 3-page concurring opinion) in a custody case, where the COA reverses the trial court’s order granting B.J. (“Father”) joint physical and legal custody of M.W. Judge Darden's opinion concludes:

Although the trial court in this case did conduct a hearing to determine custody, nothing in the record indicates that the trial court considered the best interests of M.W. before determining custody. Furthermore, Mother was unaware that custody would be at issue during the hearing, and at no time during the proceedings did she have benefit of counsel. Given that something as paramount as custody of a minor child is at issue, we find that Mother has established extraordinary circumstances, warranting relief from judgment pursuant to Trial Rule 60(B). See In re Paternity of T.G.T., 803 N.E.2d 1225, 1230 (Ind. Ct. App. 2004) (finding that the trial court abused its discretion in denying a motion for relief from judgment “[g]iven the strong policy consideration where child custody is at issue”). We therefore reverse the trial court’s custody determination and remand for a new hearing.
NFP civil opinions today (1):

Invol. Term. of Parent-Child Rel. of M.R. and A.M.; A.M. & B.M. v. IDCS (NFP)

NFP criminal opinions today (5):

Jose Serrano-Lopez v. State of Indiana (NFP)

Maurice A. Davis v. State of Indiana (NFP)

Timothy Robinson v. State of Indiana (NFP)

Donald Fulk, Jr. v. State of Indiana (NFP)

Justin Lee Cogswell v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 20, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - "Patients Blast Indiana Law That Protects Doctors"

Indy6News last evening ran this feature story about Indiana's medical malpractice law and its recovery limits, with all sides giving their views.

Posted by Marcia Oddi on Friday, May 20, 2011
Posted to Indiana Law

Law - "Legal materials often disappear as Web site content is rearranged or deleted over time"

Unsettling but true, that linked footnote in an opinion often leads to nothing but frustration after a few years.

Sarah Rhodes has published this article on LLRX.com, titled "'Link Rot' and Legal Resources on the Web: A 2011 Analysis by the Chesapeake Digital Preservation Group." An intro:

Sarah Rhodes describes and documents the work of the Chesapeake Digital Preservation Group's fourth annual investigation of link rot among the original URLs for online law and policy-related materials archived though the group's efforts. "Link rot" is used to describe a URL that no longer provides direct access to files matching the content originally harvested from the URL. The Chesapeake Group focuses primarily on the preservation of Web-published legal materials, which often disappear as Web site content is rearranged or deleted over time. In the four years since the program began, the Chesapeake Group has built a digital archive collection comprising more than 7,400 digital items and 3,200 titles, all of which were originally posted to the Web.

Posted by Marcia Oddi on Friday, May 20, 2011
Posted to General Law Related

Ind. Law - More on "Voyeurism law passes Indiana Senate"

In this Jan. 25, 2011 entry, the ILB wrote:

Remember the stories last summer about the "shoe camera man"? Here is a long list of ILB entries. As this entry on June 27, 2010 explained:
But law experts say although secretly videotaping up people's skirts may seem very wrong to most, it's not a crime according to current state law.
Well, in case the issue should ever come up again, Indiana will have a law for it, if SB 19 passes.
Well, as it turns out, SB 19 did pass and has been signed into law by Gov. Daniels. Access SEA 19 here, it is worth reviewing.

Maureen Hayden of the CNHI Statehouse Bureau reported May 11th:

Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council, said the bill was needed to close a loophole in an existing voyeurism law that covers traditional “peeping toms” but failed to address “shoe peepers” — people who use small, hidden digital cameras attached to the toes of their shoes to take indecent pictures of unwitting victims.

The bill, authored by state Sen. Tom Wyss, R-Fort Wayne, was prompted in part by the arrest last year of a Fort Wayne man caught taking pictures up women’s skirts with a hidden shoe camera. He targeted women who were shopping or working at an Indianapolis mall.

The case raised questions because prosecutors across the state faced with similar cases had been unable to obtain convictions. Johnson said that’s because Indiana law only covered indecent photos taken of unknowing individuals in private places, such as restrooms or dressing rooms.

The new law closes the existing loophole by prohibiting voyeurs from taking indecent photos or video of a person without his or her consent while in a public area.

Posted by Marcia Oddi on Friday, May 20, 2011
Posted to Indiana Law

Ind. Decisions - "Rarely has outrage come from both the liberal and conservative camps attacking a single decision of a supreme court, but Indiana has managed to achieve the previously unthinkable"

That is a quote from this column today by Mark Kiesling, a columnist at The Times of Northwest Indiana, about last week's 3-2 Supreme Court decision in Richard L. Barnes v. State of Indiana.

Here is an earlier ILB entry, from May 16th, also referencing Kiesling's columns.

[More] An alert reader has quickly pointed out:

"Warren Burger certainly shocked Dwight Eisenhower by turning into one of the court's more liberal voices, as did David Souter decades later with Ronald Reagan."

I think he means Earl Warren--not Warren Burger who was appointed by Nixon and a pretty reliable conservative. Souter was appointed by George H.W. Bush--not Reagan.

Posted by Marcia Oddi on Friday, May 20, 2011
Posted to Ind. Sup.Ct. Decisions

Thursday, May 19, 2011

Ind. Decisions - More on: Trial Rule 53.1 motion granted in Vigo case

Updating yesterday's entry, the Supreme Court has now posted an order granting a second TR 53.1 against the same judge.

[More] A reader writes:

I note that, in both of the Vigo County lazy judge orders, the defense attorney appears to be the same individual, from Gary, Indiana. As a practical matter, it's harder to pull the trigger on a lazy judge motion when it's a judge you will practice in front of year after year.

Posted by Marcia Oddi on Thursday, May 19, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Three disciplinary orders posted

Here are some quotes from the three orders:

In the Matter of Marietto V. Massillamany - Based on an incident on March 27, 2010, Respondent pled guilty to operating a vehicle while intoxicated in a manner that endangers a person, a class A misdemeanor. See Ind. Code § 9-30-5-2(b). At the time of the incident, he was employed as a Marion County deputy prosecutor. He resigned from that position shortly thereafter. Respondent has no disciplinary history. He contacted the Indiana Judges and Lawyers Assistance Program after his arrest and has executed a monitoring agreement with the program. * * *

The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent's misconduct.

In the Matter of Steven R. Lloyd - On December 21, 2010, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission's investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court's order to show cause. On March 10, 2011, the Commission filed a "Request for Ruling and to Tax Costs."

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately.

In the Matter of Robert V. Monfort
- While serving as a judge of the Jasper Superior Court 2 in 1998, Respondent presided over two cases in which T.W. was convicted of operating a vehicle while intoxicated. Respondent sentenced T.W. to 365 days incarceration.

In 2009, T.W. contacted Respondent, who was then in private practice. Respondent met with the prosecutor to explore the possibility of having T.W.'s convictions vacated. T.W., purportedly pro se, filed a petition to vacate both of his convictions. At a hearing on the petition, Respondent sat at the counsel table with T.W. When the presiding judge asked whether he was representing T.W., Respondent said he was not, but he was just there to "lay the background for the court." Later at the hearing, T.W. testified that Respondent's office had prepared the petition and that he paid Respondent for his legal services. * * *

The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct: 1.12(a): Representing someone in connection with a matter in which the lawyer participated personally and substantially as a judge without the consent of all parties to the proceeding. * * *

The parties propose the appropriate discipline is a 30-day suspension with automatic reinstatement. The discipline for Respondent's misconduct would likely be more severe had this matter been submitted without an agreement. However, in light of the Court's desire to foster agreed resolutions of lawyer disciplinary cases, the Court now APPROVES and ORDERS the agreed discipline.

Posted by Marcia Oddi on Thursday, May 19, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Rally against Barnes ruling may be held May 25th [Updated]

From Charles Wilson of the AP, this long story this afternoon headed "Ind. court decision on illegal police entry sparks plans for Statehouse protest, legislation." Some quotes:

By Thursday, more than 1,000 people had signed on to attend a May 25 Statehouse rally against the ruling that was promoted on a Facebook page. Another Facebook page dedicated to overturning the ruling had more than 400 followers. A YouTube video criticizing the ruling was also posted. * * *

[Gov.] Daniels said Wednesday he hadn't yet read the whole ruling, but added, "I think it's a little more reassuring when you read the court's reasoning, but I don't have a view beyond that."

[Updated 5/20/11] The AP story yesterday also quoted a Valparaiso Law prof who spoke in support of the decision:
Ivan Bodensteiner, a professor at the Valparaiso University School of Law, said that the decision brings Indiana law in line with that of about 40 other states that don't recognize the common-law right to resist illegal police entry. Although he acknowledged the ruling was broad, Bodensteiner said it really didn't conflict with the Constitution.

"It's not a license for police to enter homes in violation of the Fourth Amendment," he said.

Bodensteiner said the decision doesn't really give police the power to enter anyone's home illegally — it simply states that if they do, the resident must turn to the courts for relief.

"That's why we have a judicial system, to resolve disputes in a more civilized fashion," Bodensteiner said.

Posted by Marcia Oddi on Thursday, May 19, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In James S. Tracy v. Steve Morell, et al. , an 18-page opinion, Judge Najam writes:

James S. Tracy filed a complaint against Steve Morell1 alleging fraud in the sale of a farm tractor with an altered identification number. Morell filed a counterclaim alleging that Tracy was in default on the promissory note Tracy had given in payment for the tractor. Following a bench trial, the trial court dismissed Tracy’s complaint with prejudice for failing to meet his burden of proof. And the trial court concluded that Tracy owed Morell a balance of $4000 on his note as alleged in Morell’s counterclaim. On appeal, Tracy contends that the trial court erred when it dismissed his complaint and concluded that he owed a balance on the note. We determine that there was ample evidence in the record for a judgment on the merits and no reason in fact or in law why the complaint should have been dismissed. We also determine that the trial court did not err when it held that Tracy failed to meet his burden of proof on his fraud claim. But we conclude that the contract for sale of the tractor is unenforceable because there was a mutual mistake of fact between the parties and the contract violates public policy. Thus, we hold that Tracy has no further obligation on the note. Further, we hold that Tracy is entitled to a rescission of the contract for sale of the tractor and to a money judgment in the amount he has paid on the note together with interest.
NFP civil opinions today (1):

Mark Kramer, et al. v. Kramer Furniture and Cabinet Makers, Inc., et al. (NFP)

NFP criminal opinions today (5):

Tameka Caldwell v. State of Indiana (NFP)

Nathaniel Dawn v. State of Indiana (NFP)

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

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

Robert A. Nelson, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 19, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Outrage leading to action against Ind. Supreme Court ruling"

Dan Carden of the NWI Times reports today in a story that begins:

INDIANAPOLIS | A Northwest Indiana state senator troubled by an Indiana Supreme Court ruling that Hoosiers have no right to resist illegal police entry into their homes will support legislation that effectively could overturn the decision.

At the same time, a Statehouse rally is planned for next week, and petitions are being circulated to register opposition to the outcome in Barnes v. State.

State Sen. Ed Charbonneau, R-Valparaiso, said he will work with state Sen. Mike Young, R-Indianapolis, to craft legislation in 2012 clarifying Indiana's self-defense law to explicitly permit Hoosiers to resist illegal entry by a police officer.

"While times change, our rights protected in the (U.S.) Constitution do not," Charbonneau said. "Americans must live freely without fear of unwarranted intrusion by an oppressive government."

In a 3-2 decision written by Justice Steven David, appointed in 2010 by Republican Gov. Mitch Daniels, the state's high court said "modern Fourth Amendment jurisprudence" makes the common law right to resist unnecessary because civil remedies are available through the courts.

"Allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest," David said.

But Young believes essentially scrapping Fourth Amendment protections against illegal search and seizure sets a dangerous precedent.

"When someone enters your home illegally at 3 a.m., your first thought is not what court will have jurisdiction, but, rather, what do I need to do to protect my family?" Young said.

For background, begin with this ILB entry from May 18th.

Posted by Marcia Oddi on Thursday, May 19, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Supreme Court rules Tyrus Coleman's sentence for shooting OK"

Yesterday's Supreme Court decision in Tyrus D. Coleman v. State of Indiana (ILB summary here) is the subject of a story today by Justin Leighty of the Elkhart Truth. Some quotes:

Last year the Indiana Court of Appeals overturned Coleman's conviction, saying it violated prohibitions against double jeopardy. Coleman was tried for shooting Dye and then getting into a shoot-out with Dye's son, Jermaine Jackson. Jackson was killed, but in the first trial jurors acquitted Coleman of murder in Jackson's shooting.

The jury couldn't agree whether shooting Dye amounted to self-defense, as Coleman argued. Elkhart Circuit Judge Terry Shewmaker declared a mistrial on that charge and scheduled Coleman for a second trial.

The second time around Coleman was convicted of attempted murder, and Shewmaker sentenced him to 45 years for twice shooting Dye on March 18, 2007, in Elkhart.

Coleman appealed, arguing the first jury must've found he acted in self-defense to acquit him of murder, and the appeals court overturned the case last year.

However, the Supreme Court viewed it differently. "For the sake of argument we accept as true that the jury's acquittal of Coleman on the murder charge in the first trial was based on its belief that Coleman acted in self-defense," Justice Robert Rucker wrote in the unanimous opinion, issued Wednesday. "But, the jury could have rationally concluded that the act of self-defense was in response to the conduct of Jermaine only," Rucker wrote.

He continued, "In essence the acquittal relating to the murder of Jermaine ... did not amount to the jury determining that Coleman acted in self-defense with respect to the attempted murder of Dye."

Posted by Marcia Oddi on Thursday, May 19, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Broadband service less prevalent in Southern Indiana"

Lesley Stedman Weidenbener of the Louisville Courier Journal has this story today. Some quotes:

Broadband Internet service has become more widely available in Indiana recently but the southern part of the state is lagging, according to a new report from the Indiana Business Research Center at Indiana University. * * *

“While in past decades access to interstates and railroads played a crucial role in economic development, the knowledge-based economy is experiencing a similar reliance on broadband connectivity,” said Rachel Justis, a geo-demographic analyst at the IBRC.

“These data from the FCC show that broadband adoption rates tend to be lower in Southern Indiana relative to the rest of the state, making this an indicator for economic developers to watch as time goes on,” she added. * * *

Evansville is notable among the state's metro areas for its low rate of broadband adoption, Justis said. According to the FCC, Gibson County is the only county in Indiana where 20 percent or less of its households have basic broadband access.

Certainly this is something to keep in mind when making the internet the only way to easily access government information.

Posted by Marcia Oddi on Thursday, May 19, 2011
Posted to Indiana Government

Ind. Law - Deadline to sign up cell phones for Indiana no-call list extended to Friday

From 6News: "The deadline has been extended to Friday at 11:59 p.m. People who get their numbers in by then should have calls from solicitors stopped beginning July 1."

Here is the place to go: the Indiana AG's Consumer Protection Division Do-Not-Call page.

Posted by Marcia Oddi on Thursday, May 19, 2011
Posted to Indiana Law

Wednesday, May 18, 2011

Ind. Decisions - Supreme Court posts decision in golf ball injury case

In Cassie E. Pfenning v. Joseph Lineman, et al., a 23-page, 5-0 opinion posted within the hour, Justice Dickson writes:

Cassie Pfenning, injured by a golf ball at a golf outing when she was age sixteen, filed this damage action against multiple defendants: the Estate of Jerry A. Jones, her grandfather, who brought her to the event; Joseph E. Lineman, a golfer who hit the ball that struck her; Whitey's 31 Club, Inc., a tavern in Marion, Indiana, that promoted the event; and the Marion Elks Country Club Lodge #195, operator of the golf course. After the trial court granted summary judgment in favor of each of the four defendants, the plaintiff appealed, claiming that genuine issues exist to preclude summary judgment on her various claims of general negligence, negligent supervision, and premises liability of the defendants. The Court of Appeals affirmed. Pfenning v. Lineman, 922 N.E.2d 45 (Ind. Ct. App. 2010). Because this Court has not previously addressed the issue of a sports participant's liability to others, we granted transfer and now affirm summary judgment in favor of the golfer and the Elks but reverse summary judgment as to Whitey's and the grandfather. We reject the concept that a participant in a sporting event owes no duty of care to protect others from inherent risks of the sport, but adopt instead the view that summary judgment is proper when the conduct of a sports participant is within the range of ordinary behavior of participants in the sport and therefore is reasonable as a matter of law.
See this Sept. 14, 2010 ILB entry for some background on the case.

Posted by Marcia Oddi on Wednesday, May 18, 2011
Posted to Ind. Sup.Ct. Decisions

Sports Law - More on "Department of Justice asks NCAA why it does not have football playoff"

Updating this ILB entry from May 4, 2011, Indy Star reporter Jeff Rabjohns wrote yesterday in a story beginning:

The letter the Department of Justice sent to the NCAA regarding the Bowl Championship Series earlier this month is, at best, a preliminary inquiry.

It does not indicate that an investigation of the bowl system is coming and may not lead to any further action, legal experts say. The letter from Assistant Attorney General Christine Varney, sent to NCAA president Mark Emmert, asked: Why isn't there a playoff for major-college football when there is for nearly every other college sport?

"The answer is, 'Because our membership has not chosen to do that. It's not like I, Mark Emmert, can do that,' " IUPUI law school dean Gary Roberts said. "The member schools would have to vote on that and the membership is dominated by schools that benefit from the BCS system.

"That's undoubtedly the real answer."

Posted by Marcia Oddi on Wednesday, May 18, 2011
Posted to General Law Related

Courts - More on: SCOTUS decides 4th amendment "exigent" circumstances case today

Updating this ILB entry on the SCOTUS decision Monday in the case of Kentucky v. King, here are two interesting items.

First, a worth-reading analysis posted on SCOTUSblog, by Law Prof. Orin Kerr, that begins: "Monday’s decision in Kentucky v. King is an interesting example of how the Supreme Court translates constitutional principles into rules."

Second, a factoid that might not otherwise be noted. Here is the SCOTUSblog resource page on Kentucky v. King. There were three amicus briefs filed in the case. One of these was authored by our Indiana Attorney General, filed on behalf of the State of Indiana and joined by a number of other states' attorneys general. Access it here.

Posted by Marcia Oddi on Wednesday, May 18, 2011
Posted to Courts in general

Ind. Decisions - Trial Rule 53.1 motion granted in Vigo case

In State of Indiana ex rel. Brandon McIntosh v. The Vigo Superior Court, et al., a 2-page ruling, the Supreme Court yesterday granted what is commonly called a "lazy judge motion" :

Relator alleges that the trial court failed to rule on a motion within the time required by Trial Rule 53.1 and that the trial court clerk failed in her duty to withdraw the case from the trial court for appointment of a special judge after Relator filed his praecipe. * * *

All five Justices have voted to grant the permanent writ.

Accordingly, the Court GRANTS the permanent writ in the following manner. The Honorable Michael J. Lewis is directed to cease exercising jurisdiction over this case except as to any administrative tasks necessary to effectuate this writ. Patricia R. Mansard, clerk of the trial court, is directed to give written notice to Judge Lewis and this Court that submission of the trial court case is being withdrawn in accordance with Trial Rule 53.1(E)(2). Motions to reconsider or petitions for rehearing are not allowed. Ind. Original Action Rule 5(C).

For background in the use of this rule, see this April 2, 2011 ILB entry.

Posted by Marcia Oddi on Wednesday, May 18, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues one opinion today

In Tyrus D. Coleman v. State of Indiana, a 13-page, 5-0 opinion, Justice Rucker writes:

In this opinion we discuss among other things whether the Double Jeopardy Clause of the United States Constitution precludes the State from retrying a defendant where in the first trial the jury acquitted the defendant of murder with respect to one victim but failed to return a verdict on a charge of attempted murder with respect to another victim. We conclude it does not. * * *

The State charged Coleman with murder, a felony, for the death of Jermaine and attempted murder, a Class A felony, for shooting Dye. During a jury trial conducted in February 2008 Coleman testified and admitted the shootings, but contended that his actions against both Jermaine and Dye were justified on the basis of self-defense. The jury returned a verdict of not guilty on the murder charge, but was unable to reach a verdict on the attempted murder charge. The trial court thus declared a mistrial on that count and scheduled another trial. Prior to retrial Coleman filed a motion to dismiss contending a subsequent trial on attempted murder was barred by collateral estoppel and would therefore violate the Double Jeopardy Clauses of both the United States and Indiana Constitutions. After a hearing, the trial court denied the motion. A retrial ensued, at the conclusion of which the jury found Coleman guilty as charged. Thereafter the trial court sentenced him to a term of forty-five years. Coleman appealed raising several issues for review. In a divided opinion the Court of Appeals reversed Coleman's conviction on grounds of collateral estoppel. Coleman v. State, 924 N.E.2d 659 (Ind. Ct. App. 2010). Having previously granted transfer thereby vacating the opinion of the Court of Appeals, see Ind. Appellate Rule 58(A), we now affirm Coleman's conviction.

Posted by Marcia Oddi on Wednesday, May 18, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Editorials today on Supreme Court's decision in Barnes

Updating this ILB entry posted a few minutes ago, here are two editorials from Indiana newspapers on the ruling:

Posted by Marcia Oddi on Wednesday, May 18, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Attorney will appeal ruling that Hoosiers have no right to resist illegal police entry"

The Supreme Court's decision last week in Richard L. Barnes v. State of Indiana, about which much has been written (see ILB entries from 5/16/11, 5/16/11 again, and 5/13/11), is the subject of a story this morning by Dan Carden of the NWI Times, who reports:

INDIANAPOLIS | An Evansville lawyer will ask the Indiana Supreme Court to reconsider its ruling that Hoosiers have no right to resist illegal police entry into their homes.

"We're just not going to let this lie; we're going to see if there's anything we can do about it," said Erin Berger, attorney for Richard Barnes.

Barnes was convicted of misdemeanor resisting law enforcement for shoving a police officer who tried to enter Barnes' home after Barnes told the officer he couldn't come in.

The Indiana Court of Appeals overturned Barnes' conviction because the jury was not instructed on Barnes' common law right to resist illegal police entry into his home.

But in a 3-2 decision written by Justice Steven David, an appointee of Republican Gov. Mitch Daniels, the state's high court reinstated the conviction and proclaimed "the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law."

Berger said she was "surprised" at how far the court went in its decision.

"It paints with a very broad brush, and I hope that the Supreme Court will consider revisiting how broad the ruling appears to be on its face," Berger said.

More from the story:
Berger told The Times she will file a petition for rehearing in the next few weeks asking the Indiana Supreme Court to reconsider its ruling.

If the state's high court denies her petition or affirms the original ruling, Berger said she plans to appeal to the United States Supreme Court.

Since the court's decision last Thursday, Berger said she's been contacted by attorneys, law professors and many others offering assistance for an appeal.

Posted by Marcia Oddi on Wednesday, May 18, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "A Primer for Teaching Law as an Adjunct Professor"

The stories this week about Indiana Tech's plan to open a law school included this IndyStar quote:

The law school would open in the fall semester of 2013. A nationwide search for a founding law school dean is under way.
So some of you Indiana lawyers out there with time on your hands might think teaching part-time at the new law school might be a way to put your degree to work. Fortunately, this long article today from The Recorder, authored by Rachel A. Van Cleave, tells you how to get your foot in the door.

Posted by Marcia Oddi on Wednesday, May 18, 2011
Posted to Indiana Law

Ind. Gov't. - Proposed city ordinance to target "predatory" towing practices

The ILB is not finding the text of the proposed new Marion County towing ordinance online. But here is a description, via Mike Corbin of WIBC:

City officials say the eight-pronged plan targets towing companies that lurk in the shadows waiting to swoop down on drivers who often park their vehicles in clearly marked on unmarked places.

The ordinance includes:

-- Capping towing fees at $150.00 and topping storage fees out at $30.00 a day.

-- Providing drivers with charge receipts; banning payments from tow operators to property owners or lot managers per vehicle towed.

-- The city must approve signs listing lot hours and vehicle recovery information.

-- Vehicles must be towed directly to secure storage in Marion County.

-- Motorists must be able to claim their vehicles 24/7.

-- Towing operators and storage lots must accept cash or credit cards.

-- Property owners or representatives must sign tow orders on vehicles before they're towed.

Councilman Vaughn says the ordinance will be introduced to council during its June 6 meeting. The plan is to get it approved by July.

Eva Pilgrim of Fox 59 has this description in her story:
The proposal would require tow truck operators to become licensed through the city and to follow the city’s rules.

The current proposal according to the mayor’s office would:

  • Cap towing fees for passenger vehicles at $150.
  • Cap storage fees at $30 per day
  • Requite detailed receipts listing all charges
  • Prohibit payments from tow operators to property owners/lot managers per vehicle towed
  • Signs listing lot hours and vehicle redemption information must be approved by the City
  • Vehicles must be towed directly to secure storage lot inside Marion County, unless within 10 miles of pick up
  • Motorists must be able to claim their vehicle 24 hours per day, seven days a week
  • Towing operators and their storage lots must accept cash or credit cards
  • Representative of property owner, not affiliated with the tow company, must sign tow order for each vehicle prior to towing

Posted by Marcia Oddi on Wednesday, May 18, 2011
Posted to Indiana Government

Tuesday, May 17, 2011

Ind. Decisions - Still more on "COA rules against judge's decision on testimony in child molesting case"

Among the cases granted transfer last Friday by the Supreme Court was State of Indiana v. Andy J. Velasquez, II - a Feb. 22, 2011 opinion.

Here is a March 4, 2011 ILB entry on the opinion, quoting a story by Laura Lane of the Bloomington Herald Times.

And here is a follow-up entry quoting IU-Indy Law Prof Joel Schumm explaining how the prosecutor could appeal a not guilty decision, as had happened in this case:

The legislature has created a mechanism for prosecutors to challenge unfavorable rulings that result in acquittals. Double jeopardy prevents a retrial, but the guidance could be useful in the future (especially if a judge is ruling on the same issue in future cases). I'm sure the court got very good briefs from the lawyers in this case (Joby Jerrells and Tom Schornhorst.)

Unfortunately, sometimes no one files an appellee's brief. If someone is acquitted and can't be retried, why pay a lawyer to defend an appeal that makes no difference to the individual? With briefs from just one side, some less-than-ideal law can be made.

As it turns out, because in this case the Supreme Court has now granted transfer, we now have the opportunity to review the briefs. Here are the documents filed with the Supreme Court:Plus we are additionally fortunate today to have another story by The Herald-Times' Laura Lane, laying out the details:
The Indiana Supreme Court will hear an appeal in a Monroe County case in which a man accused of molesting an 8-year-old was acquitted after a trial during which the judge limited testimony from people the girl told about the abuse.

The Indiana Court of Appeals ruled in February that Monroe Circuit Judge Teresa Harper should have allowed more testimony from several witnesses during the trial. Andy Velasquez was found not guilty of two child molesting charges, which cannot be re-filed.

But after reviewing the case and legal briefs filed by both sides, the state’s highest court has set aside the appeals court decision and will reconsider the evidentiary matters of the case on its own. The court will review the trial transcript, written filings and also could decide to hear oral arguments from the attorneys.

F. Thomas Schornhorst, a retired Indiana University law professor, was appointed a special public defender to represent Velasquez’s side in the matter. Attorney Joby Jerrells of Bloomington is handling the case for the state.

There are two legal issues to be decided: whether the judge made the right decision in excluding hearsay evidence from a social worker and if she used proper discretion limiting opinions a psychologist would have testified to.

During Velasquez’s trial in February 2010, Harper and deputy prosecutor Rebecca Veidlinger sparred over their different interpretations of what the law allowed as far as evidence and testimony about the alleged abuse. Harper ruled before the trial began that the evidence would not be permitted, but Veidlinger challenged Harper’s ruling in court.

The Monroe County Prosecutor’s Office pursued the appeal, even though it cannot change the outcome in the Velasquez case. Chief Deputy Prosecutor Bob Miller said the high court’s ruling will clarify what is allowed and set the standard for future cases.

Velasquez could have faced up to 50 years in jail had he been convicted.

Posted by Marcia Oddi on Tuesday, May 17, 2011
Posted to Indiana Transfer Lists

Courts - University general counsels as appellate judges

Lest there be any question that a university general counsel is qualified to sit on an appellate court, see this entry in The Blog of Legal Times today that begins:

Yale University's deputy general counsel, Susan Carney, will join the U.S. Court of Appeals for the 2nd Circuit, after the Senate put aside concerns about her lack of recent litigation work and voted today for her confirmation.

The vote of 71-28 came after a debate over whether Carney’s 13 years in Yale’s in-house counsel’s office, and her earlier time in private practice in Washington, gave her sufficient experience to be a federal judge. In-house counsel make up a small minority of nominees for the federal bench, and Carney waited almost a full year for the Senate to act on her nomination.

Carney has never argued before a federal appellate court, though she has worked on appellate briefs and has helped to oversee litigation at Yale. She was a partner in Washington at two law firms for four years in the 1980s and also worked in-house at the Peace Corps and as of counsel at the labor firm Bredhoff & Kaiser.

Sen. Richard Blumenthal (D-Conn.) said during a debate leading up to the vote that Carney has “truly impressive credentials.” He cited her work at Yale on international transactions, intellectual property and other commercial matters.

“Ms. Carney’s time at Yale has exposed her to a broad array, a diverse swath of federal law,” Blumenthal said.

Posted by Marcia Oddi on Tuesday, May 17, 2011
Posted to Courts in general

Courts - "Secret Cash Dominates in State Court Races"

Tim Jones of Bloomberg Businessweek has this story. A quote:

In the 39 states that elect judges, the funding of campaigns for spots on the bench is becoming more opaque. The trend resembles what is going on in federal political races as a result of the January 2010 U.S. Supreme Court ruling in Citizens United v. Federal Elections Commission. That decision, which applies to federal election law, lifted certain restrictions on political spending by corporations and labor unions.

Posted by Marcia Oddi on Tuesday, May 17, 2011
Posted to Courts in general

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

For publication opinions today (2):

In Citimortgage, Inc. v. Shannon S. Barabas, et al. , a 15-page, 2-1 opinion by Judge Riley, the MERS "mortage" question is the main issue. Here the mortgage states in pertinent part:

"This Security Instrument is given to Mortgage Electronic Registration Systems, Inc. (“MERS”), (solely as nominee for Lender, as hereinafter defined, and Lender's successors and assigns), as mortgagee. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS. Irwin Mortgage Corporation."
Judge Riley writes, starting at p. 8:
[I]t is clear that the trial court did not abuse its discretion when it found that I.C. § 32-29-8-3 precluded Citi's claim because it failed to intervene until more than a year after it first acquired interest in the Property.

However, our analysis does not end here. Citi goes on to argue that I.C. § 32-29-8-3 does not apply because MERS — as the mortgagee on record — should have been given notice of ReCasa's initial foreclosure lawsuit instead of Irwin Mortgage. As a result, Citi maintains that its interest in the Property was not eliminated by ReCasa's foreclosure. This argument requires us to look at the relationship between MERS and Irwin Mortgage, which is a matter of first impression in Indiana. ReCasa and Sanders direct us to a factually similar case outside of our jurisdiction. [The case is Landmark Nat’l Bank v. Kesler, 216 P.3d 158, 161 (Kan. 2009).] While we note that this case is not binding on our court, we nevertheless find it instructive to our analysis. * * *

We choose to follow the persuasive reasoning of the Landmark case because it is factually similar to the present case. Like Landmark, Citi seeks to have the default judgment set aside based on the fact that it received its interest from MERS, which served as the mortgagee “solely as nominee” for Irwin Mortgage. (Appellant's App. p. 88). Thus, when Irwin Mortgage filed a petition and disclaimed its interest in the foreclosure, MERS, as mere nominee and holder of nothing more than bare legal title to the mortgage, did not have an enforceable right under the mortgage separate from the interest held by Irwin Mortgage. With respect to notice, just as the mortgage in Landmark referenced all notice to be sent to the lender, here, too, the mortgage states that notice to the lender should be sent to the lender's address, or “10500 Kincaid Drive, Fishers, IN 46038,” which is the address of Irwin Mortgage. (Appellant's App. p. 88). Thus, we find that the trial court did not abuse its discretion when it declined to set aside ReCasa's amended default judgment. * * *

ROBB, C.J., concurs.
BROWN, J., dissents with separate opinion. [that begins, at p. 12 of 15] I respectfully dissent from the majority opinion with respect to its application of Ind. Code § 32-29-8-3 and its conclusion that MERS did not have an enforceable right under the mortgage.

ILB: for more on MERS, start with this ILB entry from March 5, 2011, headed "MERS? It May Have Swallowed Your Loan".

In R.P. & L.P., Alleged to be C.H.I.N.S.; N.P. v. I.D.C.S. , a 17-page opinion, Judge Riley concludes:

Based on the foregoing, we conclude that (1) the trial court had jurisdiction even though the trial court failed to conduct a factfinding hearing within the 60-day statutory time limit; (2) DCS presented sufficient evidence to prove by a preponderance of the evidence that R.P. and L.P. are CHINS; and (3) the trial court did not deny Mother due process.
NFP civil opinions today (2):

Jill (Lambert) Fox v. Jeffrey Lambert (NFP)

Shonk Electric, Inc. v. Siemens Medical Solutions USA, Inc. (NFP)

NFP criminal opinions today (3):

Ronald E. Lewis v. State of Indiana (NFP)

David H. Brown v. State of Indiana (NFP)

Deborah P. Keever v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 17, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Appeals court overturns Patricia Tackett convictions"

Yesterday's Not-for-Publication opinion in the case of Patricia A. Tackett v. State of Indiana (NFP) is the subject of a story today in the Muncie Star-Press, reported by Douglas Walker. The long story begins:

MUNCIE -- A state appeals court on Monday overturned the convictions of a Muncie woman who had been accused of helping her husband repeatedly sexually abuse a mentally challenged woman in their care.

Patricia Ann Tackett, now 50, was found guilty of rape, sexual misconduct with a minor and child solicitation by a Delaware Circuit Court 1 jury last July. She was later sentenced to 40 years in prison by Judge Marianne Vorhees.

In its 3-0 ruling on Monday, the appeals court overturned Tackett's convictions not on the basis that her crimes did not occur, but on the grounds that prosecutors did not prove they took place in the state of Indiana.

More from the story:
"A person may be convicted of a crime in Indiana if either the conduct, the result that is an element of the offense, or both, occurred in Indiana," appellate judges L. Mark Bailey, Ezra H. Friedlander and Elaine B. Brown wrote in their ruling.

Patricia Tackett's videotaped statement to police, shown to the jury that convicted her, "does not establish, beyond reasonable doubt, that the charged offenses occurred in Indiana," the panel ruled.

Delaware County Prosecutor Jeffrey Arnold said Monday that he had "studied this (ruling) and I don't understand it."

"You can't imagine how deeply disappointed I am in this decision," said Arnold, who prosecuted the Tacketts with his predecessor as prosecutor, Mark McKinney. "I'm not going to just accept it on its face."

Arnold said he would work with the state attorney general's office to ask that the appeals court review its decision, or that the case be transferred to the Indiana Supreme Court.

Posted by Marcia Oddi on Tuesday, May 17, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Carrying cash isn't proof of drug dealing"

The COA May 12th decision in the case of Erodney Davis v. State of Indiana is the subject of a story by Dan Carden of the NWI Times. It begins:

Just because a person is carrying lots of cash, that doesn't make them a drug dealer, the Indiana Court of Appeals has ruled.

In a 3-0 decision, the appeals court threw out the testimony of two Gary police officers who said the $466 -- 31 $1 bills, 13 $5 bills, five $10 bills and 16 $20 bills -- carried by Erodney Davis was indicative of drug dealing.

At trial in Lake County, Judge Diane Ross Boswell allowed the "skilled" testimony of the officers who said, based on their experience with the narcotics unit, the number of bills and their denominations were typical of drug dealers.

Judge John Baker, writing for the appeals court, said a pile of miscellaneous cash is not evidence of drug dealing.

"We find this conclusion too speculative, inasmuch as the money could have come from tips, a recent visit to the bank or many other legal sources," Baker said.

Posted by Marcia Oddi on Tuesday, May 17, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "Indiana offers little regulation for home schooling"

Updating its story from yesterday, the NWI Times has an editorial today calling for a study of home schooling regulations. It concludes:

If all students -- even those taught at home -- had to report on a periodic basis for examinations or some other reason to school officials, the outcome of the Choate case might have been different.

The vast majority of parents who teach their children at home are, we believe, responsible parents who make their children's education a top priority. There are many resources for parents who choose, for whatever reason, to home-school their children.

But how many children fall through the cracks because their parents fail to follow through on their promise to educate their children well? Without state regulations, there's no way of knowing that answer.

Should children schooled at home be required to take periodic tests to show their educational process?

For children in a public school or private school, these checks are automatic. But in the Christian Choate example, some oversight by the state might have prevented his death. State oversight also could put pressure on the parents -- admittedly, a minority -- who say they will home school their children but then fail to educate them well. This is a policy issue that has been ignored way too long.

It's too late to establish one for this summer, but the Indiana General Assembly should set up a study committee next year to look at home schooling to see whether the state should keep tabs on these children to ascertain their educational progress and well-being.

Posted by Marcia Oddi on Tuesday, May 17, 2011
Posted to Indiana Government

Ind. Gov't. - "Drug and alcohol tests had 'error after error': Emails reveal 7 years of mistakes at state's toxicology lab and show IU was slow to act"

Mark Alesia and Tim Evans of the Indianapolis Star report today at length in their continuing series on the state toxicology lab scandal.

Today's story begins:

Testing errors at the state's toxicology lab go back at least seven years -- much further than previously reported -- according to internal emails obtained by The Indianapolis Star.

The emails also call into question whether IU's medical school provided adequate oversight of the lab that tests blood and urine samples for criminal cases.

The roughly 2,000 emails are correspondence to and from Peter Method, the acting director of the state Department of Toxicology from 2003 to 2008.

They portray a dysfunctional lab beset by inadequate staffing and funding that produced an environment ripe for errors.

The emails also suggest benign neglect on the part of the Indiana University School of Medicine, which did not authorize an audit of test results until 2008, at least four years after the first testing errors were reported in the emails.

In perhaps the most telling indictment of the lab, its supervisor in November 2006 emailed the following to Method -- and copied Method's supervisor, Michael Vasko, chair of the medical school's Department of Pharmacology & Toxicology:

"I never had this (happen), error after error. . . . I guess if this is acceptable to you and the department, then I don't have to worry. If an error occurs again in the future I won't bother you anymore."

The Star also provides access to a sheaf of 27-pages of internal email correspondence regarding testing errors.

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

Posted by Marcia Oddi on Tuesday, May 17, 2011
Posted to Indiana Government

Ind. Law - More on "Indiana Tech to open law school"

Updating yesterday's entry, Dan McFeely has this story today in the Indianapolis Star with more background.

Posted by Marcia Oddi on Tuesday, May 17, 2011
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending May 13, 2011

Here is the Clerk's transfer list for the week ending May 13, 2011. It is three pages (and 30 cases) long.

One petition, previously granted, was denied as "improvidently granted," See May 10, 2011 ILB entry here, re Tonya Peete v. State.

One transfer petition was dismissed, pursuant to a motion by appellant: Dan Cristiani Excavating Co., Inc. v. Jeremy & Kerri Money

Six 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. [NOTE: This will be updated this week]

The ILB archive now contains over seven years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Tuesday, May 17, 2011
Posted to Indiana Transfer Lists

Ind. Decisions - Tax Court issues one yesterday

In Lacey v. Ind. Dept. Revenue, a 9-page opinion in a case with a pro se petitioner, former Tax Court judge, and now Sr. Judge, Fisher writes:

On April 20, 2009, the Indiana Department of State Revenue (Department) issued a final determination in which it determined Lyle Lacey (Lacey) owed Indiana adjusted gross income tax for the 2007 tax year (the year at issue). Lacey has appealed that final determination. * * *

On appeal, Lacey argues that the compensation he received in 2007 as a result of his employment with Adecco is not income within the meaning of the Sixteenth Amendment to the United States Constitution5 or the Internal Revenue Code. * * *

As support for his argument, Lacey cites to the United States Supreme Court's decision in Eisner v. Macomber, 252 U.S. 189 (1919), for the proposition that only “gain” or “profit” can be “income.” * * *

[T]he Supreme Court has, since its decision in Eisner, repeatedly rejected the argument that income is limited to gain or profit. * * *

Conclusion. Lacey has not shown that the compensation he received in 2007 as a result of his employment with Adecco is not income within the meaning of the Sixteenth Amendment or the Internal Revenue Code. As a result, Lacey's employment compensation is income subject to Indiana's adjusted gross income tax and the Court therefore AFFIRMS the Department's final determination.

On a final note, this case marks the third time this Court has rejected the argument that one's employment wages do not constitute income subject to Indiana's adjusted gross income tax. * * * Consequently, the Court now provides the following warning: in the future, when a taxpayer advances the same (or a substantially similar) argument, the Court will not hesitate to consider whether an award of attorney fees is appropriate.

Posted by Marcia Oddi on Tuesday, May 17, 2011
Posted to Ind. Tax Ct. Decisions

Monday, May 16, 2011

Ind. Courts - "Indiana State Capitol Police are investigating harassing phone calls and email messages directed to the Indiana Supreme Court following a controversial ruling issued last Thursday"

Dan Carden's NWI Times report from late this afternoon continues:

Police would not say how many calls and messages have been received or whether they were addressed to a specific justice. But the communications are being reviewed as part of a criminal harassment investigation, police said.

Supreme Court spokeswoman Kathryn Dolan said the threats contained in the calls and emails were "primarily" directed at police officers.

"We obviously want to protect the safety of our employees and alert police to individuals who might be dangerous, so we contacted Capitol Police," Dolan said. "Because they are investigating, I am not able to give more specific information."

Posted by Marcia Oddi on Monday, May 16, 2011
Posted to Indiana Courts

Ind. Gov't. - Georgia provides instant access to 9 years of General Assembly video

From today's Athens Banner-Herald editorial:

In a news release issued last week, [Georgia Secretary of State] Kemp announced "the launch of a new website that provides instant access to nine years (1998-2007) of audio and video recordings of the Georgia General Assembly ... which users can ... search by keyword. The results take (users) directly to the session, and the very moment, where the word was used." Searches can be refined by using a particular legislative day, calendar date or legislative chamber to help pinpoint needed information. * * *

Making video and audio recordings of General Assembly sessions available would be a real service to Georgians, and, if the rollout is successful, is something that lawmakers should consider supporting with funding adequate to provide the people of this state with complete access to past legislative sessions. * * *

In the news release, Kemp called the MAVIS program a "fantastic e-government solution that increases transparency and the ability to research the activities of ... state government." We couldn't agree more, and we applaud Kemp for pursuing the program.

And what about Indiana?

Currently, although there is no index or other guide (other than creative use of the relevant Journals, if one can locate them online), the Indiana Senate has made available online its complete video archive of session days, going back through 2007. At least that is a place to start.

On the other hand, the House "archive" of session day videos covers only the 2011 session.

As the ILB wrote in 2006, when only the House was videocasting: "The video archives of the Indiana House sessions are important Indiana historical documents."

See also this Feb. 10, 2006 entry.

Here is what the ILB wrote on Jan. 12, 2007:

The ILB has written in detail about the General Assembly's video record several times. See this entry from Feb. 8, 2006 on the importance of maintaining an archive of the videocasts of the House and Senate, and this ILB entry from Nov. 8, 2006, titled "Suggestions for the new legislative leadership - Part I: The Video Archives."

Here again are the ILB's "Recommendations to the Indiana General Assembly" on this issue:

First, both Houses should stream their session days live, plus archive the videos, permanently. Currently the House archives during the session, but does not retain the videos once the next session starts. The Senate doesn't even go that far -- you can only watch the Senate session online as it happens; nothing is preserved.

Second, all committee meetings should be streamed live, plus archived. Right now, the public cannot even get a seat in a committtee hearing that allows them to see and hear what is going on.

Third, "archived" means make permanently available online. Look again at Ohio - you can watch Ohio proceedings online live or archived, going back through 1997, plus order DVD or VHS videos. Their plan is soon to make video-podcasts downloadable also.

Fourth, the House and Senate daily sessions should be indexed (eg SB #238 - Third Reading), as in Ohio, allowing the viewer to go immediately to the desired position. (It might be possible to do this in conjunction with the Journals.) In fact, the entire Ohio setup should be studied, as they seem to be light years ahread of Indiana, tech-wise!

Fifth, the process - archiving the videos, access, prohibitions against editing out portions - should be detailed in statute or in the joint rules.

The recommendations concluded with:
In 1851 the debates and journals of the Indiana Constitutional Convention were carefully and laboriously preserved for the ages. We continue to use and reference them today. Recording and preserving today's sessions of the General Assembly is a very simple thing. But we are not doing it very well.
A first step would be for the House to post online its video archives going back through the year their video record began.

Posted by Marcia Oddi on Monday, May 16, 2011
Posted to Indiana Government

Courts - SCOTUS decides 4th amendment "exigent" circumstances case today

From SCOTUSblog today:

In Kentucky v. King (opinion here), the Court reversed the decision of the Kentucky Supreme Court. Justice Alito wrote the opinion for the Court, which held that the exigent circumstances rule applies when the police do not create the exigency by engaging in or threatening to engage in conduct that violates the Fourth Amendment. Justice Ginsburg dissented.
Joan Biskupic has this story in USA Today, headed "Justices side with police in warrantless search."

Posted by Marcia Oddi on Monday, May 16, 2011
Posted to Courts in general

Ind. Decisions - Weekly Standard pans last week's Barnes ruling

Here it is, from the Weekly Standard blog. The article, by Jeffrey H. Anderson, concludes:

Some have wondered how committed Daniels would be to nominating and securing the confirmation of Supreme Court justices who would be committed to applying the law, rather than making it. Would Daniels appoint justices who would be true to the plain and historically understood meanings of the Constitution’s text? Whatever the answer, Justice David’s opinion isn’t likely to inspire renewed confidence in Daniels’s commitment to getting his judicial appointments right.

Posted by Marcia Oddi on Monday, May 16, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Indiana Tech to open law school"

Devon Haynie reports in the Fort Wayne Journal Gazette in a story that begins:

FORT WAYNE – Indiana Tech plans to open a new law school in the fall of 2013, university officials announced Monday.

Indiana Tech president Arthur E. Snyder said the school will enroll about 100 students and charge about $28,500 in tuition the first year. He said the school hopes to hire a dean for the school by September and decide whether it will build or rent a building by next year.

He said the school would either be in downtown Fort Wayne or on the Indiana Tech campus.

Here, via the FWJG, is the school's press release.

Here is the Indiana Tech website. Here is the release re the Indiana Tech Board of Trustees decision.

Posted by Marcia Oddi on Monday, May 16, 2011
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

For publication opinions today (1):

In The William C. Haak Trust v. William J. Wilusz and Judith A. Wilusz, Benjamin Luna , a 9-page opinion, Judge Bradford writes:

Appellant-Plaintiff the William C. Haak Trust (“the Trust”) appeals from the trial court’s entry of judgment in favor of Appellees-Defendants William J. and Judith A. Wilusz and Benjamin Luna in its quiet title action, in which it sought an easement of necessity. We affirm in part, reverse in part, and remand with instructions.
NFP civil opinions today (5):

Joseph J. Pajot v. Maryann A. Pajot (NFP)

State of Indiana v. Danny LeFlore (NFP)

Jennifer Lukens v. Chad A. Baxter (NFP)

Town of Clarksville v. Shirley Makowsky and Indiana Fraternal Order of Police Labor Council, Inc. (NFP)

Stephen M. Park and Shirley Park v. William F. Eckhart (NFP)

NFP criminal opinions today (7):

Dante A. Webb v. State of Indiana (NFP)

Patricia A. Tackett v. State of Indiana (NFP)

Eugene Bowers v. State of Indiana (NFP)

Josh Coffey v. State of Indiana (NFP)

Robyn N. Hogan v. State of Indiana (NFP)

Latonya Plummer v. State of Indiana (NFP)

Cindy Lee Bell v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 16, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Nominees in 7th Circuit remain in limbo

"Posts look less likely for 2 judicial nominees" is the headline to this Milwaukee Journal Sentinel story from Sunday, reported by Bruce Vielmetti, that began:

As federal judges from Wisconsin, Illinois and Indiana gather Monday in Milwaukee for the U.S. 7th Circuit bar association's annual meeting, their ranks remain less than full strength, casualties of partisan congressional politics that have led to growing judicial vacancies nationwide.
Thanks to AppellateDaily.

Posted by Marcia Oddi on Monday, May 16, 2011
Posted to Indiana Courts

Ind. Courts - "Proposed Tippecanoe protocols urge kinder, gentler divorces"

A long story today in the Lafayette Journal Courier, reported by Sophia Voravong. Some quotes:

All Indiana counties are required to have local court rules. But right now, Tippecanoe County does not have rules in place for how divorces should proceed.

It instead is guided by each judge -- for instance, [Judge Thomas Busch of Tippecanoe Superior Court 2] already requires divorcing couples to exchange financial information early on. [Judge Randy Williams of Tippecanoe Superior Court 1] recently put in divorce orders that couples consider mediation for disagreements before coming back to court.

In all courts, divorcing parents are required to attend a workshop for divorcing parents, either before a divorce is final or within 30 days of a divorce decree, depending on who filed first.

At minimum, adopting Lake County's family law rules would formalize what each judge already has in place, Busch said.

Busch first heard about [Charlie] Asher's cooperative model during a judges seminar five to six years ago.

"If Lake County can move to kinder and gentler divorce proceedings, we can too," he said. "... It's up to the courts, the lawyers and the parents."

The story notes:
Lake County's family law rules are based on a model developed by Charlie Asher, an attorney from South Bend who now practices in Indianapolis. Asher created a website -- UpToParents.org -- that encourages divorcing couples to focus on their child or children's well-being.

Posted by Marcia Oddi on Monday, May 16, 2011
Posted to Indiana Courts

Not law but important - "What's killing Hoosier women?"

Karen Hensel of WISH TV had this important story, first aired last Friday, on how young women are still dying of toxic shock syndrome, although the symptoms are often not recognized:

Dr. Philip Tierno is director of Clinical Microbiology & Immunology at New York University Langone Medical Center.

"Toxic shock has not disappeared. In fact, the incidences are probably the same, believe it or not," he said.

Posted by Marcia Oddi on Monday, May 16, 2011
Posted to General News

Ind. Decisions - Still more "Court: No right to resist illegal cop entry into home"

Last week's 3-2 Supreme Court decision in Richard L. Barnes v. State of Indiana (most recent ILB post here) has been the topic of much discussion on the web, and in print.

From Indiana, Mark Kiesling, columnist for the NWI Times who wrote an earlier column on the new "no knock" ruling, had this Sunday column - here is a sample:

For the second time in a week, the high court has seriously curtailed the rights of Indiana residents to be safe within their own homes and to be protected from illegal police action.

Tuesday, the court voted 5-0 to allow warrantless entry into homes, where before there had to be some probable cause to enter a private residence.

A man's home is no longer his castle, at least not in the Hoosier state.

On Thursday, the high court's newest excursion into fascism forbids private citizens from resisting illegal, unlawful arrest, even on their own property.

Thankfully, I guess, two justices dissented from the majority 3-2 decision, and both are from the area: Brent Dickson, of Hobart, and Bob Rucker, of Gary.

Dickson, who wrote the majority opinion on the Tuesday travesty, apparently had enough.

Also last week, the ILB received a note from an Indiana attorney/reader who asked how the Court's decision could be reconciled with the so-called "stand your ground" or "no retreat" law the Indiana General Assembly enacted in 2006. (See ILB entry from 3/22/06 and this one from 12/27/09 for background).

The statute, as amended, now provides at IC 35-41-3-2(b):

(b) A person:
(1) is justified in using reasonable force, including deadly force, against another person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.
The reader writes:
There does not appear to be a law-enforcement exception to the rule; that is, the self-defense statutory right doesn't become inapplicable solely because the person making the unlawful entry is a law-enforcement officer. The factual circumstances of any particular case may dictate when a belief is reasonable, but surely there are cases where a person will have a reasonable belief that a person (law-enforcement officer or not) is entering their house unlawfully.
In answer to questions posed by the ILB, another reader noted:
But the statute only allows the use of force "if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle." (emphasis added). Doesn't Barnes render any and every incursion by police into a person's house lawful? Moreover, the defendant would have to assert self-defense at trial to get an instruction. It doesn't look like that happened in Barnes.

Posted by Marcia Oddi on Monday, May 16, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - "Top Pennsylvania jurist says courts underfunded"

Thanks to How Appealing for the link to this lengthy story today in the Pittsburgh Tribune-Review, reported by Brad Bumsted and Debra Erdley. A few quotes:

Supreme Court Chief Justice Ronald D. Castille, whose $195,138 annual pay is third highest among state chief justices nationwide, recently warned the Legislature that the state might be "headed toward a crisis" because of years of underfunding the courts. * * *

The Trib's examination showed the state's judicial payroll alone increased by about $31.4 million since 2006.

Ed Collins of West Newton, a retired Westinghouse marketing and communications specialist, has little sympathy for the judicial system's plea for more money.

"That's too damn bad. It's tough on everybody," he said. * * *

According to the National Center for State Courts' 2011 salary survey, Pennsylvania's judges and justices are among the top paid state jurists in the nation.

[James Koval, spokesman for the Administrative Office of Pennsylvania Courts,] said "a strong argument can be made that comparisons are more relevant not to the 50 states, but to what jurists might make in private practice in or closer to Pennsylvania, which is far greater than salaries of any judge."

The Trib last year detailed how statewide appellate court judges get state-paid vehicles and some drive luxury cars such as Cadillacs, Lexuses and high-end SUVs. Supreme Court justices and other statewide appellate court judges have pricey hometown offices, despite the $117 million Pennsylvania Judicial Center, which opened in 2009. The nine-floor appellate courts building was financed with borrowed money that taxpayers must repay.

[Gov. Tom] Corbett, in his March budget address, recommended keeping the court system's budget at about $335 million. The House Republican budget proposed last week also would keep the court system at current levels.

Posted by Marcia Oddi on Monday, May 16, 2011
Posted to Courts in general

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

Here is the answer to "What did you miss over the weekend from the ILB?

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, May 15, 2011:

From Saturday, May 14, 2011:

From Friday afternoon, May 13, 2011:

Posted by Marcia Oddi on Monday, May 16, 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 5/16/11):

Thursday, May 19th

Next week's oral arguments before the Supreme Court (week of 5/23/11):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/16/11):

Monday, May 16th

Wednesday, May 18th

Next week's oral arguments before the Court of Appeals (week of 5/23/11):

Next Tuesday, May 24th

Next Wednesday, May 25th

Next Thursday, May 26th

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, May 16, 2011
Posted to Upcoming Oral Arguments

Sunday, May 15, 2011

Ind. Law - "Murky times for Planned Parenthood: Local clinic joins others in state wary of new law’s consequences"

That is the headline of this story today by Angela Mapes Turner of the Fort Wayne Journal Gazette. Some quotes from the lengthy story:

Last week, Gov. Mitch Daniels signed a law that bars Medicaid patients from receiving health care at Planned Parenthood clinics. House Enrolled Act 1210, which sailed through the Republican-dominated Statehouse, effectively strips about $1.5 million from the organization.

Planned Parenthood and its advocates say the law will result in more, not fewer, abortions because of the resulting loss in family-planning services. They have challenged the law in federal court.

Since 1976, the Hyde Amendment has prohibited federal funds from being used to pay for abortions. None of the 5,580 abortions performed last year at Indiana Planned Parenthood clinics was eligible to be paid for with government dollars.

Supporters of the law say providing Planned Parenthood funds to pay for other services frees up its privately raised resources to be used for abortions.

Cathie Humbarger, executive director of Allen County Right to Life, calls it indirect support.

And although abortions are not offered at many Planned Parenthood clinics – including those in Fort Wayne, Elkhart and Warsaw – the clinics offer abortion referral services and counseling.

“It’s a short step,” she said. * * *

The funding anxiety is new for the Fort Wayne clinic but not for Planned Parenthood of Indiana as a whole.

The organization has battled to keep its funding several times in the past years.

A couple of years ago, many clinics lost Title XX funding, a federal entitlement program, when the distribution was privatized in Indiana.

That prompted Planned Parenthood of Indiana to close six health centers around the state, lay off staff and restructure the entire organization, it said in its most recent annual report. It cut about $2 million from its budget.

The organization faced a challenge on the national level this year; a failed defunding measure pushed by Rep. Mike Pence, R-6th, died in the Senate.

Allen County Right to Life’s Humbarger said Planned Parenthood has survived funding cuts before, and she reiterated the statement Gov. Daniels gave when he signed the bill: Planned Parenthood can resume receiving tax dollars by stopping abortion services or separating them from its main organization.

“If their existence was dependent on tax dollars, they’d be long gone,” Humbarger said.

Humbarger also doesn’t buy the argument that women will fall through the cracks and said that implication is a disservice to the many organizations that provide health care to underserved populations.

The governor has instructed the Indiana Family and Social Services Administration, which oversees Medicaid operations, to ensure Medicaid clients receive prompt notification of nearby care options.

The head of that same state agency, though, cautioned the General Assembly in the days before the bill’s passage that discriminating against Planned Parenthood could jeopardize all federal funds the state receives for family planning, effectively disrupting services for more providers than just Planned Parenthood.

The story has a sidebar with with the stats on Planned Parenthood’s role in health care, on a local level and statewide.

From a companion story today:

Minutes before the Indiana House voted on the bill to defund Planned Parenthood and other health care providers, two lawmakers backing the bill held up a handmade map covered in colored dots.

The map, they said, showed Planned Parenthood clinics and health clinics that could bridge the gap if Planned Parenthood lost funding.

“In every circumstance but one, there is another provider nearby,” Rep. P. Eric Turner, R-Cicero, told the representatives assembled April 27.

When another legislator asked whether those providers offered family planning services and other reproductive health care, Turner said he didn’t know.

The answer in many cases is, no.

The list provided by House Republicans and on their website includes health service providers that have nothing to do with women’s reproductive health, sexual health or family planning.

They include: a Salvation Army addiction center, a homeless shelter, several mental health centers, a juvenile detention center and the Indiana Women’s Prison. * * *

Rep. Matthew Ubelhor, R-Bloomfield, who presented the map, did not respond to repeated requests through his staff for comment.

Rep. Win Moses, D-Fort Wayne, spoke forcefully against the bill in the House. Last week, he said the inexplicable inclusions on the GOP lawmakers’ map showed they had not done their research.

“It bordered on lying,” he said. “They have once again shown they don’t care about truth in this matter.”

He especially took issue with what he calls “religious arrogance” inserted into the debate; specifically, Turner’s assertion he “has faith” low-income women will find affordable health care.

Turner and supporters of the bill argue it will make Indiana the “most pro-life state” in the country; Moses disagrees.

“In fact, it makes us the most anti-woman state, certainly anti-women’s-health state,” he said, “and that’s a dismal situation.”

From LifeNews.com:
At the end of April, Daniels issued a statement about why he planned to sign the bill into law.

“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,” Daniels said. “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.”

Daniels added that he “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,” he said.

Posted by Marcia Oddi on Sunday, May 15, 2011
Posted to Indiana Law

Ind. Decisions - Oral argument set in Batson challenge

The Supreme Court's transfer list for the week ending May 6, 2011 included the grant of a petition to transfer in the case of Joey Addison v. State.

The case already has been scheduled for oral argument, set for this Thursday, May 19. From the petition:

Questions Presented on Transfer

I. The trial court and the Court of Appeals failed to consider all relevant circumstances In evaluating evidence supporting Batson's third prong of racial discrimination by ignoring side by side comparison of similarly situated iurors as required the U.S. Supreme Court in Snyder v. Louisiana and adopted Killebrew v. State.

II. The Court of Appeals was correct in finding the trial court erred in the exclusion of the deposition given by Joey Addison's sister, Lola Hall, on the issue of insanity but erred in finding the exclusion harmless.

The case summary on the Indiana Supreme Court calendar of arguments reads:
Addison was convicted of murder following a jury trial in the Marion Superior Court. The Court of Appeals decided that the trial court’s rejection of a Batson challenge was not clearly erroneous, rejected the other appellate arguments and affirmed the conviction in a not-for-publication memorandum decision. Addison v. State, No. 49A05-1006-CR-354 (Ind. Ct. App. Feb. 16, 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
The ILB is pleased to be able to post the various filings in the case:

Posted by Marcia Oddi on Sunday, May 15, 2011
Posted to Upcoming Oral Arguments

Ind. Gov't. - "Indiana offers little regulation for home schooling"

According to this long, surprising story today from Carmen McCollum of the NWI Times, withdrawing a student from school for "home schooling" can be as simple as signing a form, and that is the end of any state oversight:

Indiana is one of 10 states with minimal regulations for students who are home-schooled, according to the nationally recognized Homeschool Legal Defense Association.

There are no teacher qualification requirements. No standardized tests are required. In fact, home-educated children may not take the ISTEP-Plus achievement test unless they also are enrolled in a public school for at least one period per day. Though parents are encouraged to register with the state for home schooling, they are not required to by law; therefore, some may not register.

The lack of laws regarding state oversight can easily allow a youngster to slip through the bureaucratic cracks and get lost in the system. Such may have been the case with 13-year-old Christian Choate, whose body was believed to have been unearthed May 4 in a shallow grave in the Black Oak section of Gary.

When a parent notifies a school of the decision to home-school a child, oversight at the local and state levels effectively ends, said Alex Damron, Indiana Department of Education deputy press secretary.

"There is not any point in which IDOE would become involved with a home school investigation," he said.

Posted by Marcia Oddi on Sunday, May 15, 2011
Posted to Indiana Government

Ind. Courts - "Tippecanoe County aims to collect unpaid court service fees"

Dorothy Schneider of the Lafayette Journal Courier has a story today that begins:

Officials who work with residents processed through Tippecanoe County courts programs are upping their efforts to collect outstanding debts.

Representatives from the county's probation, court services and community corrections departments recently met to brainstorm ways to get millions owed by users of their programs. Community Corrections alone has about $2.8 million in outstanding fees.

"We're leaving a lot of money on the table we should have coming to us," said Jeff Kemper, who participated in the recent meeting with fellow council member Kevin Underwood. "It's all about revenue and having users paying for the system."

See also this ILB entry from April 19, 2011 referencing collection efforts in Shelby and Clark counties, along with this follow-up.

Posted by Marcia Oddi on Sunday, May 15, 2011
Posted to Indiana Courts

Ind. Decisions - "Lawyer's thefts lead to prison"

Updating a long list of earlier ILB entries, Rebecca S. Green reported yesterday in the Fort Wayne Journal Gazette on the sentencing. Some quotes from the lengthy story:

After a two-hour hearing that clearly aggravated the judge, the prosecutor and nearly every other attorney in the room, former attorney Daniel Serban was handcuffed and led off to begin a 5 1/2 -year prison sentence.

His wife cried in the front row of the courtroom as he was led away in his gray suit, hands shackled in front.

Serban's sentence, which includes 5 1/2 years of probation and a restitution order of more than $280,000, came after an April admission that he had been stealing money from his clients' trust fund accounts.

And wresting money from him for restitution became an issue before he even began serving his sentence.

Attorneys are required to keep escrow-type accounts where money either coming from or going to their clients will be kept.

Those accounts are to be treated with extreme care, and attorneys have a strong ethical responsibility to protect that money.

Serban, whose law firm handled collection work, among other things, was supposed to have forwarded the money collected onto his clients. * * *

Two attorneys testified to having used Serban's firm to handle collection work for them, only to have the cases mishandled and left in a state of disarray.

Allen County Deputy Prosecutor Tim McCaulay argued Serban's behavior was an example of "audacious arrogance." The defendant abused his position of trust, McCaulay said, knowing it was criminally wrong to steal client monies and then stonewalled and lied to other attorneys when confronted about what he had done.

Much of the money taken had gone to fund Serban's greed, or "lifestyle enhancements," as McCaulay put it.

"His guilty plea was a pragmatic decision in the face of overwhelming evidence," McCaulay said.

Posted by Marcia Oddi on Sunday, May 15, 2011
Posted to Ind. Trial Ct. Decisions

Law - "Wealthy Hesitate to Take a Break on Estate Taxes"

From the NYT column "Wealth Matters," Paul Sullivan this week writes about the "two-year window that makes it cheaper to transfer wealth to offspring."

So why are the richest Americans hesitating to take advantage of this tax break? It comes down to two fears that bedevil everyone: they don’t want to put too much aside now in case they need it later, and they don’t want to take away their children’s incentive to work.

Posted by Marcia Oddi on Sunday, May 15, 2011
Posted to General Law Related

Courts - "U.S. courts say casinos have no 'duty of care' responsibility to halt compulsive gamblers from playing"

This lengthy article today by John Mangels of the Cleveland Plain Dealer references, among others, two Indiana decisions, Williams v. Aztar (7th Cir., 2003), and Caesars v. Kephart (Ind. 2010) (although today's story quotes from Judge Crone's dissent in the Court of Appeals opinion). From the story:

In light of the court decisions, "the best thing a casino could do in terms of return on their money may be to somehow get a list of compulsive gamblers and invite them to come," because they spend the most, said Indiana attorney Terry Noffsinger, who represented Williams and who last year lost [Kephart,] another high-profile duty-of-care case. "How can that be right?" * * *

"The elephant in the room is the fact that the state of Indiana gets $350 million a year from gaming taxes," Noffsinger said.

That potential bias bothered Indiana Appeals Court Judge Terry Crone, too. "It seems clear that both the casinos and the state share a common interest in gamblers -- pathological and otherwise -- losing as much money as quickly as possible," Crone wrote in his dissent of the court's verdict favoring the casino in the Kephart case.

Public policy to protect the vulnerable, as well as the riverboat's "repugnant" pursuit of Kephart to gamble, warrant the establishment of a duty of care by casinos toward pathological gamblers, Crone concluded.

But his appellate court colleagues disagreed, ruling that there's nothing wrong with a casino enticing an addicted gambler, because "common sense tells a reasonable person and all gamblers, compulsive or otherwise, that the house usually wins." The Indiana Supreme Court upheld the decision.

The Hoosier cases have helped set the tone in other U.S. jurisdictions for casino victories in duty-of-care cases. Internationally, the outcomes have been similar, although countries whose governments operate casinos -- especially Canada -- have shown increasing sensitivity to the issue of who's responsible for pathological gambling.

Posted by Marcia Oddi on Sunday, May 15, 2011
Posted to Courts in general | Ind. (7th Cir.) Decisions | Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

Saturday, May 14, 2011

Environment - "New IDEM rule forbids summer use of some outdoor wood boilers"

On March 2nd, after years of study and discussion, the Indiana air pollution control board enacted a rule regulating outdoor wood-fired boilers. See ILB entry here.

Yesterday the Chesterton Tribune had this story, headed "New IDEM rule forbids summer use of some outdoor wood boilers." Some quotes:

The Indiana Air Pollution Control Board has passed a new rule—to take effect on Wednesday, May 18—regulating the use of outdoor hydronic heaters (OHHs) in the State of Indiana, the Indiana Department of Environmental Management (IDEM) said on Wednesday.

That rule will restrict sales of future heaters to qualified units and places restrictions on existing units close to neighbors’ buildings. * * *

Highlights of the new rule:

  • All units are only allowed to burn clean wood or other approved fuels.
  • Newly-installed OHH units must pass the U.S. EPA’s Phase II emission standards.
  • Non-Phase II units within 150 feet of occupied buildings on neighboring property must have stack heights that are five feet above the peak of the occupied building (stack height limited to 22 feet).
  • Non-Phase II units within 300 feet of occupied buildings on neighboring property are not allowed to operate from May 1 through September 30.
IDEM created a fact sheet about the rule. The fact sheet and other information about OHHs can be found here.

The agency is reaching out to owners of OHH units affected by the rule.

“A large number of comments from the public and regulated community also affected the rulemaking,” IDEM said. “The agency received comments from over 1,000 citizens and businesses while considering the rule. Each type of comment required a response before rulemaking could proceed.”

“We received more comments on this rule than we have on any other single topic,” IDEM Commissioner Thomas Easterly said. “Getting the public to participate throughout the process helped IDEM and the air board understand how Hoosiers and our environment are being affected by these heaters. The comments helped IDEM write a rule that would protect human health and the environment while addressing public concerns. We also made a conscious effort to not put undue restrictions on the people who operate their heaters in a responsible manner.”

Posted by Marcia Oddi on Saturday, May 14, 2011
Posted to Environment

Ind. Law - "Indiana law distinguishes abortions at clinics versus hospitals"

Louisville Courier Journal reporter Lesley Stedman Weidenbener reports today on House Enrolled Act 1210, the new law that prohibits state or federal funding from going to entities that provide abortions, and imposes additional limitations on abortions. The new law, effective immediately:

* * * stripped Planned Parenthood of Indiana of almost all of its taxpayer funding, even that which reimbursed the group for providing non-abortion health-care services to poor women.

The GOP-controlled House and Senate had passed the bill over the strong objections of a few Democrats and it essentially means that Indiana is going further than any state to defund Planned Parenthood, which performed 5,580 abortions last year.

There are a handful of other organizations that perform abortions in Indiana as well, although some don’t get any taxpayer funding. And the legislation exempts hospitals, where a significant number of abortions are performed.

The latter has become an interesting part of the debate. Certainly, some of the abortions performed in hospitals are due to complications that threaten the life of the mother. But others are likely done for all the varied reasons they are done at Planned Parenthood. * * *

[I]t’s unlikely that lawmakers will ever go after hospitals that perform abortions — unless they’re seeking a way to challenge Roe v. Wade, the case that led the U.S. Supreme Court to decide abortion is legal.

It would be a devastating blow to health care in Indianapolis, for example, if the state were to cut off taxpayer funding for Wishard Hospital in Indianapolis, which generally serves the poorest city residents, because it performs abortions.

That hospital is dependent on Medicaid and other government funding to keep its doors open (as are many others in the state). If it closed as a result of an expanded abortion law, it would be hard for the rest of the city’s health-care community to absorb all those poor patients.

On the other hand, if Wishard were to stop performing abortions to avoid such a law, the state could be facing a legal problem. If the state’s laws create a situation in which there is essentially no place in Indiana where an abortion could be obtained, the state could run afoul of Roe v. Wade.

For now, though, the focus will remain on Planned Parenthood and its petition in U.S. District court challenging the new legislation as unconstitutional and a violation of federal law.

Going one step further, this WTHR 13 story last evening by Cat Anderson reported:
Planned Parenthood isn't the only abortion provider that could lose money under a new state law.

While funding cuts to Planned Parenthood may be the result of a recently passed law, the bill never names Planned Parenthood specifically. It says it applies to "any entity that performs abortions or maintains or operates a facility where abortions are performed." * * *

Rep. Eric Turner, the bill's author * * * says there are some exceptions. "There's an exemption for hospitals and surgical facilities," he said.

Wishard Hospital says it houses the Well Women's Center, which performs elective abortions, but it does not operate the clinic. The IU School of Medicine runs that facility.

But the IU School of Medicine is not a hospital, it's a school. Eyewitness News wanted to find out if it could also be losing state funding, which adds up to millions of dollars.

"They're going to have to decide whether they're going to perform abortions," Turner said. "There's an exemption for hospitals and so they're going to have to look at that."

Asked if the school would lose funding if they don't stop performing abortions, Turner replied, "I don't know that."

The school says they're seeking legal advice to find out if they fall under the hospital exemption, even though they're not a hospital. They say $50 million of state funding is at stake.

This story today by Healther Gillers of the IndyStar includes a sidebar listing "other Central Indiana family planning clinics." It is unclear from the list what services are available from these eight other providers. But half of there are part of the Wishard Hospital Family Planning Program.

Posted by Marcia Oddi on Saturday, May 14, 2011
Posted to Indiana Law

Ind. Decisions - More on: "Imprisoned South Bend man fights judicial system"

Updating this March 6, 2011 story in the South Bend Tribune, reported by Jeff Parrott, on the so-called "Frese Special," Mary Kate Malone, also of the Tribune, picks up the story today, reporting at length under the headline "South Bend judge denies sentence modification."

Posted by Marcia Oddi on Saturday, May 14, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - More on: Governor vetoes forfeiture bill

"After veto, forfeiture law remains unclear" is the headline to this long story in this morning's Indianapolis Star by Heather Gillers and Tim Evans. (ILB: For background, see this very long Nov. 14, 2010 investigative story by these reporters, plus Mark Alesia.) From today's story:

Prosecutors and police departments across the state could lose millions of dollars if Gov. Mitch Daniels is right about their long-standing and controversial practice of keeping money they seize from criminal suspects.

Daniels said Friday that the state constitution requires all such money -- often derived from cars, cash and other assets taken during drug busts -- be deposited in the Common School Fund.

The statement, which the governor made to explain his veto of a property seizure bill, comes only weeks after the state Supreme Court issued a similar opinion. It conflicts, however, with an earlier advisory written by Attorney General Greg Zoeller. * * *

Government watchdogs have long worried that that reliance tempts counties to "police for profit," sacrificing other law enforcement priorities in order to pursue needed funds. But Daniels' announcement raises another troubling concern: If the constitution entitles schools to all of the seized money, then prosecutors have been benefiting for decades from millions of dollars that should have gone to education.

These questions arose after a 2010 Indianapolis Star investigation found that virtually none of the money earned from seizures has gone to the school fund, despite laws suggesting most of it should. Many prosecutors and police agencies used Zoeller's opinion to justify keeping nearly all of the proceeds from forfeiture cases by claiming the money fit under the legal definition of reimbursement for law enforcement expenses. * * *

How prosecutors and police will handle cases now remains unclear, although at least some say they will continue their current practice of keeping most or all of what they seize. For many agencies, including Indianapolis' Metro Drug Task Force and the Marion County prosecutor's office, that money is critical to operating budgets. * * *

Zoeller said that he "respect(s) the governor's opinion" but a spokesman said the attorney general's office stands by its year-old opinion -- the one that helped prosecutors justify keeping the money. * * *

State forfeiture law allows police and prosecutors to seize "suspicious" assets whether or not the owner has been convicted of a crime, and The Star investigation last year revealed that the money effectively served as a slush fund in some counties. One police department was spending the money without the county council's permission. Another was seizing cash from motorists under agreements signed on the side of the road -- without entering a courtroom.

See also yesterday's ILB entry.

Posted by Marcia Oddi on Saturday, May 14, 2011
Posted to Indiana Government

Ind. Decisions - "State waited too long to sue Madison Center in South Bend"

That is the headline to this story by Jeff Parrott in today's South Bend Tribune. From the story:

The state of Indiana’s Medicaid fraud suit against now-defunct Madison Center is over.

A federal judge this week dismissed the suit, ruling the statute of limitations for filing it had expired.
* * *

The dismissal by U.S. District Judge Robert L. Miller Jr. means the state won’t be allowed to recoup more than $10 million it alleged Madison Center had been paid for bogus Medicaid claims. The state has alleged Madison Center received more than $10 million for false claims it filed in 2001 and 2002, based on a 2003 audit, but didn’t file suit until June 2010, almost a year after the statute of limitations had expired.

State officials have said they waited so long to file suit because they had been negotiating for years with Madison Center officials in hopes of reaching a settlement.

Those talks finally ended last summer when Madison Center’s then-interim chief executive officer, Ken Davis, told the state the organization, mired in debt, could never repay the allegedly overpaid money.

In reality though, recovering more than $10 million from Madison Center now would have been impossible. Gotsch’s ruling Wednesday formally dissolved the nonprofit organization.

Its assets have been valued at about $8 million, but bondholders are owed more than $50 million.

More from the story:
In another ruling this week, this one in St. Joseph Circuit Court, two former Madison Center employees whose whistleblower complaints triggered the suit will receive $150,000 and a former Madison Center property, under a settlement approved by Judge Michael Gotsch.

That money will be paid from assets liquidated by court-appointed receiver Michael Lane.

Posted by Marcia Oddi on Saturday, May 14, 2011
Posted to Ind Fed D.Ct. Decisions

Friday, May 13, 2011

Ind. Decisions - More "Court: No right to resist illegal cop entry into home"

Yesterday's 3-2 Supreme Court decision in Richard L. Barnes v. State of Indiana (ILB summary here) is the subject of a blog post today by Dan Miller of the PJ Tattler, headed "Indiana Suprerme Court issues death warrant for Fourth Amendment." Here is how the well-worth reading in full post concludes:

Appellate courts generally limit their legal analyses to the facts of the case before them, for good reason. Failure to do so not only results in otherwise unnecessary future litigation, it also changes the law for no valid reason. The creation of new law is the proper function of legislatures, not courts. Here, however, what the court did went well beyond what even the Indiana Legislature could properly have done.

Quite properly, Justice Dickson stated in a dissent, “In my view, the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.” Justice Rucker also dissented, despite his belief that the right to resist an unlawful police entry is passe. He dissented because

the common law rule supporting a citizen’s right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, ―the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.
Under the court’s quite unnecessary holding that “there is no right to reasonably resist unlawful entry by police officers (emphasis added),” there would be no right to resist even a patently unlawful police intrusion into one’s home to force payment of a bribe, to steal one’s silverware or for other grossly illegal purposes. Nor would there even be a right to have a jury decide whether that’s what happened. Far fetched? Sure. Are there bad cops? Sure, again. This holding gives them great opportunities.

This case may not get to the Supreme Court of the United States; that requires time and money. It should get there because it purports to abrogate — in Indiana — prior Supreme Court rulings on the Fourth Amendment and because cases embodying bad law tend to breed and multiply. They seem to enjoy higher fertility rates than do cases embodying good law.

Posted by Marcia Oddi on Friday, May 13, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Melody D. Linenburg v. Mark A. Linenburg , a 7-page opinion, Judge Crone writes:

In this interlocutory appeal, Melody D. Linenburg (“Mother”) challenges the trial court’s provisional order awarding Mark A. Linenburg (“Father”) primary physical custody of the couple’s children and possession of the marital residence during the pendency of the parties’ marriage dissolution proceeding. Mother also claims that the trial court did not give her an opportunity to present rebuttal evidence at the provisional hearing and thereby violated her due process rights. Finding no error, we affirm.
NFP civil opinions today (1):

Reginald N. Person, Jr., et al. v. Carol A. Shipley (NFP)

NFP criminal opinions today (5):

Raymond Shook v. State of Indiana (NFP)

Julio Azpeitia v. State of Indiana (NFP)

Michael Yang v. State of Indiana (NFP)

Steven Foernzler v. State of Indiana (NFP)

Michael Hale v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 13, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - Governor completes action on this year's bills

Here is the complete list, all bills submitted to Gov. Daniels were signed, except for two, HEA 1177 (boards of trustees) and SEA 215 (forfeitures), which were vetoed.

Posted by Marcia Oddi on Friday, May 13, 2011
Posted to Indiana Law

Ind. Courts - "Judicial Qualifications Commission Files Misconduct Charges Against Hamilton Superior Court Judge"

Here is the news release from the Indiana Courts.

Here is the 5-page "Notice of the institution of formal proceedings and statement of charges."

For background, start with this April 21, 2011 ILB entry headed "More on: Hamilton Superior Court Judge William Hughes arrested on DUI charge."

Posted by Marcia Oddi on Friday, May 13, 2011
Posted to Indiana Courts

Ind. Gov't. - Governor vetoes forfeiture bill [Updated]

Here is the veto message on SEA 215:

By the authority vested in me as Governor of Indiana, under the provisions of Article 5, Section 14, of the Constitution of the State of Indiana, I do hereby veto Senate Enrolled Act 215, enacted during the regular session of the 117th General Assembly, as violative of the Indiana Constitution, which provides that the proceeds from “all forfeitures” shall go to the Common School fund.

The Indiana Supreme Court, on April 27, reinforced that point, possibly excepting the “limited diversion” of the actual expenses of obtaining those proceeds. Fairness to the General Assembly requires noting that legislators did not have the benefit of the court’s opinion, which was issued in the session’s final days.

This bill would take more than ninety cents of every dollar collected through forfeiture for the “expense of collection” rather than sending it to the Common School fund. That is unwarranted as policy and constitutionally unacceptable in light of the Supreme Court’s recent guidance and the plain language of Article 8, Section 2 of the Indiana Constitution.

For background see this ILB entry from May 8th, which noted:
SEA 215 is awaiting the Governor's action. It would amend the current law to ensure that less than 15% of forfeiture proceeds go to the Common School Fund. Under the current law, arguably all forfeiture amounts, except for law enforcement costs, are to go to the Common School Fund.

And the current law may itself violate Article 8 of the Indiana Constitution, which requires that all forfeiture money to be deposited in the state's Common School Fund.

See also this entry from April 29th.

[Updated at 2:18 PM] Heather Gillers of the Indianapolis Star has posted a brief story that concludes:

An Indianapolis Star investigation earlier this year revealed that prosecutors across the state - and especially in Marion County - have received most if not all of the forfeiture money, relying in part on a legal opinion issued last year by Attorney General Greg Zoeller for justification.

The bill’s author, Sen. Richard Bray, R-Martinsville, said the Supreme Court opinion clearly takes precedent over Zoeller’s. He said he would take another shot at rewriting the state’s forfeiture laws next year.

The Star investigative story was cited in footnote 1 of the the Supreme Court's April 27th decision in Martin Serrano v. State of Indiana. Here is the ILB entry on the Star's Nov. 7, 2010 story.

Posted by Marcia Oddi on Friday, May 13, 2011
Posted to Indiana Law

Ind. Law - "Planned Parenthood fund covers needy thru Saturday"

Ken Kusmer's AP story in the Chicago Tribune today begins:

INDIANAPOLIS — Planned Parenthood of Indiana will tap a fund for low-income patients to keep providing most health care services to current Medicaid recipients at least through Saturday, despite a new state law that cuts most of its public funding, a spokeswoman said.

The organization will be able to afford to provide for those patients by using money from its Women's Health Fund, which helps low-income people with such things as birth control, cancer screens and prevention of sexually transmitted diseases, spokeswoman Kate Shepherd said Thursday.

On Wednesday, a federal judge denied Planned Parenthood a temporary order blocking the new state law while the organization pursues a lawsuit. Indiana became the first state to largely end public funding for Planned Parenthood when Republican Gov. Mitch Daniels signed the measure this week.

"We'll re-evaluate if we can afford to continue that later this week," Shepherd said. "We won't be taking new Medicaid patients and some long-term birth control methods won't be covered by us for those patients. But, the majority will be taken care of. It may be a week-by-week decision, based on how donations into the fund for low-income patients goes."'

The fund had about $300,000 as of Wednesday, said Becky Cockrum, president of Planned Parenthood of Indiana.

An editorial yesterday in the Fort Wayne Journal Gazette pointed out:
Perhaps the worst part of the new state law banning Planned Parenthood from receiving money to provide health care is its “emergency” status, allowing it to become effective as soon as Gov. Mitch Daniels signed it Tuesday.

Most new laws take effect July 1, giving those affected by the changes time to adapt. But legislators declared an emergency, allowing the Planned Parenthood law to take effect immediately.

What is the emergency?

“This was so important to” legislators, Indiana Solicitor General Thomas Fisher told a federal judge Tuesday. “They wanted to keep the state from going forward with indirect subsidizing of abortion with Medicaid funds.”

Of course, the state has funded non-abortion health care functions of Planned Parenthood for years. And it would have made sense for this law – as bad as it is – to take effect on July 1, when the state’s new fiscal year begins. The only “emergency” requiring the law to take effect immediately was a political power shift that let Republicans do pretty much what they wanted this year.

Ironically, one reason the federal judge denied Planned Parenthood’s request for a temporary restraining order, which would have kept the law from taking effect, is that the state did not have time to respond to the request for the order.

Now, thousands of low-income Hoosiers who depend on Planned Parenthood for a variety of health-care needs will have to find new providers – not in two months, not in two weeks, but now, because of this “emergency.”

From the transcript of Michael Puente's WBEZ 91.5 story yesterday headed "Abortion debate rages in Northwest Indiana":
When the doors opened this morning at a Planned Parenthood office in Gary, patients who showed up were in for shock because a common payment option is no longer available.

But, patients did receive the customary medical documents.

RECEPTIONIST: Go ahead and filled those out for me. Top part there the next one is front and back. And when you’re done please bring those back to me and thank you.

But when this patient returned to the counter, the receptionist provided some new information.

RECEPTIONIST: We may not be able to bill Medicaid but we are going to take care of you. We expect the situation to be resolved quickly but we need to reschedule you if for any reason you didn’t quality for the funding we would have to reschedule you for …

But before the receptionist could explain … the patient … who asked not to be identified … didn’t quite understand what was going on.

RECEPTIONIST: We may not be able to bill Medicaid.

WOMAN: Why is that?

RECEPTIONIST: Governor Mitch Daniels passed a bill. It’s basically saying we can’t get federal funding because Medicaid is federal funding, we can’t accept your Medicaid here today.

WOMAN: What am I supposed to do now? Find somewhere else to go? I don’t understand it. It took me a whole month to get Medicaid in the first place and I can’t use it.

Planned Parenthood office manager Maritza Torres assured the woman that she would be seen today and Planned Parenthood would pay for the service through a special backup fund for low-income people.

But those funds aren’t going to last forever. In fact, they may run out this weekend.

For background, see Ken Kusmer's long AP story from May 12th.

Posted by Marcia Oddi on Friday, May 13, 2011
Posted to Indiana Law

Ind. Law - "Indiana to Benefit from Five New Pro-Gun Laws on July 1, 2011! "

That is the headline to this May 12, 2011 release from the NRA Institute for Legislative Action. It begins:

In one of the most successful pro-gun legislative sessions in the Hoosier State’s recent history, the Indiana General Assembly passed and Governor Mitch Daniels signed into law five new NRA-supported firearm bills!

As of July 1, Hoosiers will:

  • Be protected from employer anti-gun workplace discrimination;
  • Have the ability to purchase a long gun in any state that allows such sales;
  • Transport a firearm to a shooting range without a state-issued permit;
  • Know that wherever they travel throughout Indiana, the same firearm laws and freedoms apply evenly across local boundaries; and
  • Carry a loaded firearm on their person on off-road vehicles on private property.

Posted by Marcia Oddi on Friday, May 13, 2011
Posted to Indiana Law

Ind. Law - "New state law will improve brain injury awareness and prevention for high school athletes"

From a Fort Wayne Journal Gazette editorial this morning:

A bill crafted by state lawmakers flew in under the radar but deserves the praise it is receiving from national youth sports advocates. The new law should garner great fanfare from the parents of Indiana’s high school athletes.

The National Coalition on Youth Sport Concussion is extolling the virtues of Senate Enrolled Act 93, which Gov. Mitch Daniels signed Tuesday. The law, sponsored by Sen. Travis Holdman, R-Markle, helps protect the health and safety of Indiana’s high school athletes.

The law places an emphasis on education and requires coaches, athletes and parents to learn about the risks and symptoms of concussions. It requires coaches to immediately remove from play any athlete they suspect of suffering a concussion and follow a “when in doubt, sit them out” policy. Most important, athletes must receive clearance from a qualified medical professional trained to evaluate and treat concussions before the student can resume playing.

The legislation received strong support from the Indianapolis-based American College of Sports Medicine, the Indiana High School Athletic Association, the Indiana State Medical Association Commission on Sports Medicine, Riley Hospital for Children and the National Football League. The law takes effect July 1.

Posted by Marcia Oddi on Friday, May 13, 2011
Posted to Indiana Law

Ind. Decisions - "Court: No right to resist illegal cop entry into home"

Dan Carden reports in the NWI Times on yesterday's 3-2 Supreme Court decision in Richard L. Barnes v. State of Indiana (ILB summary here). Some quotes:

Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry.

"We believe ... a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said. "We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system. * * *

Justice Robert Rucker, a Gary native, and Justice Brent Dickson, a Hobart native, dissented from the ruling, saying the court's decision runs afoul of the Fourth Amendment of the U.S. Constitution.

"In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally -- that is, without the necessity of a warrant, consent or exigent circumstances," Rucker said. "I disagree."

Rucker and Dickson suggested if the court had limited its permission for police entry to domestic violence situations they would have supported the ruling.

But Dickson said, "The wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad."

This is the second major Indiana Supreme Court ruling this week involving police entry into a home.

On Tuesday, the court said police serving a warrant may enter a home without knocking if officers decide circumstances justify it. Prior to that ruling, police serving a warrant would have to obtain a judge's permission to enter without knocking.

Posted by Marcia Oddi on Friday, May 13, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on "State Ethics Commission: Scott Storms Violated Code Of Ethics Former IURC, Duke Employee Fined"

John Russell's updated story in today's Indianapolis Star includes a link to the 10-page final report of the State Ethics Commission. Here are some findings of fact from the report:

4. Kelley Karn ("Karn"), Deputy General Counsel for Duke testified under oath at the April 14,2011 hearing that she telephoned Storms on March 31, 2010, and notified him about an attorney position opening up at Duke. On or about March 31, 2010, Michael Reed (Reed), former Executive Director of the IURC and then Commissioner of the Indiana Department of Transportation, was in the process of applying for the open position of President of Duke. Reed accepted the position of President of Duke in June 2010.

5. Karn subsequently contacted Storms via email once the position was officially opened and posted to notify him that the position was open, the date that the position was open until and how to apply.

6. Karn testified under oath at the April 14, 2011 hearing that Storms communicated approximately ten times with Karn concerning the open attorney position at Duke. These communications were in April, May, June and July, 2010.

7. Karn testified under oath at the April 14, 2011 hearing that over the same time period, Storms exchanged numerous e-mails and had numerous telephone conversations with Reed concerning both Reed's prospective, and subsequently secured, employment as President with Duke and Storms' prospective and subsequent employment with Duke in the open attorney position.

8. Among the e-mails exchanged between Reed and Storms was an e-mail dated June 27, 2010 in which Reed e-mailed Storms and indicated that Reed, who was then President of Duke, was still working on the "'you' issue" with Duke. Storms responded by email on June 28, 2010 with "Thanks for the update." See Attachment A.

9. Reed also sent numerous e-mails and communicated with David Lott Hardy ("Hardy"), then Chairman of the IURC. Hardy was Storms' boss.

10. The communications between Reed and Storms regarding Storms' prospective employment with Duke culminated with an e-mail Reed sent to Storms and Hardy on July 27, 2010 confirming that Storms would be securing the open attorney position for Duke. Storms acknowledged the e-mail on July 28, 2010 at 8:40 a.m. See Attachment B.

11. Later that day, Storms conducted a hearing on July 28, 2010 in his position as ALJ for the IURC involving a Duke Edwardsport case, Cause No. 43501. Duke had a financial interest in the outcome of this 111atter.

12. The next day Storms participated as the ALJ on July 29, 2010 in a case in which Duke was involved, which case is referred to as the "Smart Grid" matter, Cause No. 43501. Duke had a financial interest in the outcome of this matter.

Russell writes in the Star:
The ethics case against Storms hinged in large part on when he applied for the Duke job and began negotiating an offer. The 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.

Posted by Marcia Oddi on Friday, May 13, 2011
Posted to Indiana Government

Thursday, May 12, 2011

Ind. Courts - "Growing Ind. school districts drop funding lawsuit"

The plaintiffs have withdrawn their Hamilton Southeastern Schools, et al v. Mitch Daniels lawsuit. From this AP story in the Muncie Star-Press:

FISHERS, Ind. — Three Indiana school districts have decided to drop a lawsuit against the state that claimed the method for distributing school funding was unconstitutional and treated growing districts unfairly.

Hamilton Southeastern schools Superintendent Brian Smith said at a news conference Thursday that the lawsuit was no longer needed because of changes made to the school funding formula as part of the state budget approved by legislators last month.

Adjustments to the funding formula advanced by Republican lawmakers shift more money to growing suburban districts by paying schools only for students actually enrolled, eliminating the phase-out of funding shrinking districts currently receive to help ease their financial losses.

Here is a list of earlier ILB entries, including Judge Nation's decision that the plaintiffs had standing.

[More] Here is the IndyStar story, apparently the original. It includes a link to the Hamilton Southeastern news release on ending school funding lawsuit.

Posted by Marcia Oddi on Thursday, May 12, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Supreme Court posts a second opinion this afternoon

In Richard L. Barnes v. State of Indiana, an 11-page, 3-2 opinion (with the same two dissenters as in 2 earlier opinions this week), Justice David writes:

A jury convicted Richard Barnes of Class A misdemeanor battery on a law enforcement officer, Class A misdemeanor resisting law enforcement, and Class B misdemeanor disorderly conduct. Barnes contests that the trial court‘s failure to advise the jury on the right to reasonably resist unlawful entry by police officers constituted reversible error and that the evidence was insufficient to sustain his convictions. We hold that there is no right to reasonably resist unlawful entry by police officers. We further hold that the evidence was sufficient and affirm Barnes‘s convictions. * * *

I. Jury Instruction

Barnes contests that his tendered jury instruction should have been given because it was a correct statement of a viable legal defense supported by the facts and because that defense was not covered by the other instructions. We acknowledge that the Court of Appeals followed its own precedents in its analysis. Now this Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right. Accordingly, the trial court‘s refusal to give Barnes‘s tendered instruction was not error. * * *

In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law. Accordingly, the trial court‘s failure to give Barnes‘s proffered jury instruction on this right was not error. * * *

Shepard, C.J., and Sullivan, J., concur.
Dickson, J. dissents with a separate opinion.
Rucker, J. dissents with a separate opinion in which Dickson, J. concurs.

[From J. Dickson's dissent]
In my view, the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.

[From J. Rucker's dissent] The majority has made a respectable case supporting the proposition that the common law rule entitling a person to resist an unlawful arrest is outmoded in our modern society. * * *

But the common law rule supporting a citizen‘s right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, "the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home. * * *

At issue in this case is not whether Barnes had the right to resist unlawful police entry into his home – a proposition that the State does not even contest – but rather whether the entry was illegal in the first place, and if so, whether and to what extent Barnes could resist entry without committing a battery upon the officer. Federal Fourth Amendment jurisprudence is equal to the task of resolving these issues. In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally – that is, without the necessity of a warrant, consent, or exigent circumstances. And that their sole remedy is to seek refuge in the civil arena. I disagree and therefore respectfully dissent.

[Emphasis added by ILB]

[More] Read this opinion in conjunction with the two no-knock warrant rulings in Wilkins and Lacey from earlier this week.

Also see this editorial from the Muncie Star-Press dated May 11th, headed "The Knock on no-knock warrants."

Posted by Marcia Oddi on Thursday, May 12, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "State Ethics Commission: Scott Storms Violated Code Of Ethics Former IURC, Duke Employee Fined"

Here is the brief story from 6News' Derrik Thomas. John Russell of the IndyStar has this briefer story.

Posted by Marcia Oddi on Thursday, May 12, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Commissioner of Labor on the Relation of Vincent and Antimo Scialdone v. An Island, LLC, a 7-page opinion, Judge Bailey writes:

The Commissioner of Labor, on the relation of Vincent and Antimo Scialdone (collectively, the “Scialdones”), filed suit under the Wage Claims Act, Ind. Code § 22-2-9-1 et seq., in Marion County for unpaid wages allegedly due the Scialdones from their prior employer, An Island, LLC (“Island”). The trial court granted Island’s Motion to Dismiss for improper venue and ordered the case transferred to Perry County. The Scialdones now appeal, raising only one issue: whether the trial court abused its discretion when it determined that Perry County was the only preferred venue for the case and granted Island’s Motion to Dismiss. We affirm. * * *

Here, the Scialdones pursued their action after having had their claim designated to a private attorney by the Attorney General, rather than the Attorney General or a county prosecuting attorney pursuing the claim on behalf of the Scialdones. The Scialdones apparently do not live in Marion County, and Island is located in Perry County. Absent facts tending to establish Marion County as a preferred venue for this case, Perry County is the only preferred venue for this case under Trial Rule 75(A)(1), and thus the trial court did not abuse its discretion when it ordered the Scialdones’ case dismissed from Marion County and transferred to Perry County.

In Lloyd Conn v. State of Indiana , an 11-page opinion, Judge Brown writes:
Lloyd Conn appeals his conviction for conspiracy to commit murder as a class A felony. Lloyd raises one issue which we revise and restate as whether the evidence is sufficient to sustain his conviction. We affirm. * * *

Any one of the three overt acts presented by the State was enough to prove that a conspiracy to murder Stacy existed. Accordingly, we conclude that evidence of probative value was presented at trial from which a jury could find that Lloyd entered into an agreement with Bill and/or Barbara to murder Stacy and that overt acts were taken to further that conspiracy. Minniefield, 512 N.E.2d at 1105-1106 (holding that the evidence was sufficient of an agreement and that an overt act was taken to sustain the defendant‟s conviction for conspiracy to commit murder).

In Erodney Davis v. State of Indiana , a 10-page opinion, Judge Baker writes:
In this case, one of the issues with which we are presented is whether a trial court abused its discretion when it allowed a police detective to testify as a skilled witness that the denominations of money found on the defendant were indicative of drug dealing. While skilled witnesses need not satisfy the onerous requirements for expert witnesses under Indiana Evidence Rule 702, they must satisfy the two requirements under Indiana Evidence Rule 701, namely, that their testimony be rationally based on their perception and helpful to a clear understanding of their testimony or a fact in issue. The trial court concluded that the police detective‟s testimony satisfied both requirements. We cannot agree, but the error was harmless.

Appellant-defendant Erodney Davis appeals his conviction for Possession of Cocaine, a class C felony. Specifically, Davis argues that the trial court erred by permitting a police detective to testify as a skilled witness and by excluding evidence of a witness‟s prior drug-related convictions. Additionally, Davis contends that the trial court erred by giving an additional instruction to the jury that it had inadvertently omitted from the final jury instructions. Finding no reversible error, we affirm.

NFP civil opinions today (1):

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

NFP criminal opinions today (5):

Jameson Malbrough v. State of Indiana (NFP)

James Spann v. State of Indiana (NFP)

Rodney Griffin v. State of Indiana (NFP)

Robert A. Jordan v. State of Indiana (NFP)

Thomas Huffine v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 12, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In State ex rel. Gregory F. Zoeller v. Aisin USA Manufacturing, Inc., a 16-page, 3-2 opinion, Justice Sullivan writes:

The Attorney General sought to recover an erroneously issued “tax refund” of approx-imately $1,150,000 from Aisin USA Manufacturing, Inc. (“Aisin”) in Jackson Superior Court. Aisin argued that the case “arises under” Indiana tax law so that exclusive subject matter jurisdiction rests with the Indiana Tax Court. We hold that this case may proceed in Jackson Superior Court. It does not arise under the tax laws because the “refund” was the result of accounting and clerical errors within the Indiana Department of Revenue (“Department”) that were wholly unrelated to any interpretation or application of tax law. * * *

Conclusion. The present case is not one that “arises under” Indiana tax law and therefore is not an original tax appeal over which the Tax Court has exclusive jurisdiction under Indiana Code section 33-26-3-1.15 Consequently, the Jackson Superior Court has subject matter jurisdiction. We reverse the decision of the trial court and remand for proceedings on the merits of the State’s claims.

Shepard, C.J., and David, J., concur.
Rucker, J., dissents with separate opinion in which Dickson, J., concurs.

I respectfully dissent. What is really at stake in this case is that the State apparently acted under the assumption that it had missed a statute of limitations deadline in a tax proceeding. See Appellee’s Br. at 10 (“The State’s real problem here is . . . that the [Department of Revenue] failed timely to pursue its claim under the applicable statute of limitations and then chose not to take final administrative action so as to proceed to Tax Court.” (emphasis omitted)). The State does not contest Aisin’s assertion. Instead it is reasonable to conclude that acting under the assumption that it could obtain no relief in the Tax Court by reason of a statute of limitation, the State attempted an end-run and filed this action in the Superior Court. Both the trial judge and the Court of Appeals concluded that this matter belongs before the Tax Court. Given the lengths to which the majority was required to analyze Aisin’s various tax filings and the resultant repercussions, I agree this is a tax case and would affirm the judgment of the trial court.

Posted by Marcia Oddi on Thursday, May 12, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "City Looks To Put Brakes On Predatory Towing"

Updating stories from February about predatory towing in downtown Indianapolis, recent TV news stories have focused on similar issues in Broad Ripple. See, for example:

Posted by Marcia Oddi on Thursday, May 12, 2011
Posted to Indiana Law

Ind. Gov't. - Still more on "Fox and coyote penning should be banned"

Updating this ILB entry from May 8th, Nick Schneider, Assistant Editor of the Greene County Daily World reported yesterday in a story beginning:

Three animal rights organizations have filed a civil lawsuit in Marion Circuit Court against an Indiana Department of Natural Resources decision to waive permit requirements against Greene County's WCI Foxhound Training Preserve near Midland.

The Animal Legal Defense Fund (ALDF), Project Coyote, and the Animal Welfare Institute (AWI) filed the 15-page lawsuit Tuesday against the DNR and its director Robert Carter Jr. * * *

Tuesday's lawsuit alleges that, if the DNR misinterpretation of the law were allowed to stand, anyone in the state of Indiana could skirt the wildlife possession permit requirement simply by failing to maintain the fencing within which they have enclosed an animal. By removing the state's wildlife permit requirement -- intended to serve as a substantial disincentive to possessing wildlife -- the DNR's conduct makes it more likely that humans and wildlife will be harmed or infected with communicable diseases.

Posted by Marcia Oddi on Thursday, May 12, 2011
Posted to Environment | Indiana Government

Ind. Decisions - Federal Judge Pratt's denial of TRO in PPIN case

Updating earlier ILB entries, the most recent of which is here, the ILB has now obtained a copy of federal Judge Tanya Walton Pratt's 4-page entry yesterday denying PPIN's motion for a temporary retraining order and setting a hearing for June, 6, 2011 at 9:00 a.m. on the motion for a preliminary injunction. From the ruling:

The Court is not persuaded that Indiana Code Section 5-22-17-5.5 (b) through (d) will have a concrete and immediate effect that would warrant the extraordinary remedy of enjoining the law before the Defendants have the opportunity to fully contest the issues. The Court is mindful that Planned Parenthood currently has several scheduled appointments and has alleged that it will be unable to provide care to these patients. The Court is also mindful of Planned Parenthood’s estimation that, as a result of this law, it will lose between $1.3 and $2 million dollars in revenue annually which in turn, could cause approximately 13 health centers to be closed and approximately 52 full-time employees to lose their jobs. But these are predictions and, for purposes of this Motion, the Court is reticent to equate predictions with irreparable harm. In other words, at this point, Planned Parenthood’s harm resembles a gradual deterioration rather than in an immediate, irreparable harm, which is required for temporary injunctive relief. This position is reinforced by reports confirming that Planned Parenthood is indeed open today to see scheduled patients and, going forward, will be able to temporarily tap a Women’s Health Fund to sustain operations. Further, Planned Parenthood has up to one year to submit those billing claims incurred after today.

Given the exacting standard required for a temporary restraining order, Planned Parenthood’s limited evidence, the fact that the parties have not yet had the opportunity to conduct discovery and the fact that the State has not yet had the opportunity to fully respond, Dkt. 9 [Plaintiffs’ Motion] is DENIED as it relates to Planned Parenthood's Motion for Temporary Restraining Order.

[More] Here is Ken Kusmer's AP story.

Posted by Marcia Oddi on Thursday, May 12, 2011
Posted to Ind Fed D.Ct. Decisions

Wednesday, May 11, 2011

Ind. Gov't. - "Recount panel appealing Ind. election chief ruling"

More Charlie White news, this time from AP reporter Charles Wilson, whose complete story today is available via the Westport Connecticut News. Some quotes:

INDIANAPOLIS (AP) —The Indiana Recount Commission says it will appeal a judge's ruling ordering it to reconsider whether Republican Secretary of State Charlie White was a valid candidate for the office to which he was elected.

The commission did not lay out its case in the notice of appeal it filed in Marion Circuit Court, and officials at the commission and attorney general's office, which represents it in court, declined to discuss the substance of the appeal until it is filed. There is currently no timetable for the filing, said Bryan Corbin, a spokesman for the attorney general's office. * * *

The notice filed Friday also says the commission intends to appeal Rosenberg's denial of White's request for a stay and a May 2 order setting deadlines for the panel to act. The commission responded last week by saying it would hold a hearing on the issue June 21 and reach a decision by June 30.

Bill Groth, one of the attorneys on the Democrat side, said if the commission, like White, seeks to stay action until after the criminal trial, it raises questions about the panel's objectivity.

"Our concern is if they're appealing the order denying the stay they're taking Charlie White's side after pledging to be impartial and nonpartisan," Groth said.

Meanwhile, White also is appealing. But Groth said it's too early for appeals because there's been no final decision in the case. He has repeatedly accused the other side of stalling.

Posted by Marcia Oddi on Wednesday, May 11, 2011
Posted to Indiana Government

Ind. Decisions - "Ban 'choate' from the legal lexicon, 7th Circuit Judge Richard A. Posner advises"

See How Appealing entry here, and don't miss the linked NY Times article. The Posner opinion linked is today's Indiana opinion, Bloomfield State Bank v. U.S. (ILB summary here). The discussion of "choate" begins at the very end of p. 3 of the opinion and continues through p.5.

Posted by Marcia Oddi on Wednesday, May 11, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. courts - Still more on: PPIN files for temporary restraining order and injunction in U.S. District Court

Eric Bradner of the Evansville Courier & Press has just tweeted:

U.S. District Judge Tonya Walton Pratt denies Planned Parenthood's effort to stop defunding bill immediately.
Heather Gillers of the IndyStar:
Fed court will allow defund Planned Parenthood law to go into effect for now.
Gillers has now posted this story to the Star. It begins:
A federal judge today denied Planned Parenthood of Indiana's request that she order the state to hold off on enforcing a new law cutting funds to the health care provider.

Planned Parenthood challenged the constitutionality of the law and filed a restraining order in U.S. District Court in Indianapolis Tuesday -- hours after Gov. Mitch Daniels signed it.

Judge Tanya Walton Pratt will take more time to consider whether the law itself should stand. But typically a judge's reluctance to even temporarily put a law on hold does not bode well for the plaintiff, in this case Planned Parenthood.

[More] Gillers adds in a new tweet:
Judge Pratt said her refusal to grant restraining order should not be seen as a decision on the merits of the case.

Instead, Pratt said, she didn't think letting the law go in effect for now would cause "immediate & irreparable injury."

Posted by Marcia Oddi on Wednesday, May 11, 2011
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (2):

In A.Y. v. Review Board, a 10-page opinion in a case involving a pro se appellant, Judge Vaidik writes:

Because there was no participation slip with A.Y.’s telephone number in the administrative law judge’s file, the ALJ dismissed A.Y.’s appeal which challenged the claims deputy’s determination that she was ineligible for unemployment benefits. A.Y. sought to reinstate her appeal, claiming that good cause existed because she indeed faxed the participation slip with her telephone number to the ALJ using a fax machine that did not print off confirmation sheets, called to confirm receipt of the fax, and then called the ALJ’s office during the time allotted for her hearing when she never received a call. The Director of Unemployment Insurance Appeals (Director) denied A.Y.’s motion for reinstatement of appeal, and the Review Board of the Indiana Department of Workforce Development (Review Board) affirmed the Director’s denial, concluding that A.Y.’s telephone number was not in the ALJ’s file. However, neither the Director nor the Review Board made a finding as to whether A.Y. called the ALJ’s office during the forty-five minutes allotted for her telephonic hearing. If A.Y. indeed called, then A.Y. has shown good cause for reinstatement of her appeal, and the Review Board shall reinstate her appeal. We therefore reverse and remand this matter for further findings.
In Walter Lee Liddell v. State of Indiana , a 13-page opinion, Judge Vaidik writes:
Walter Lee Liddell appeals his convictions for rape, criminal confinement, and related offenses. Liddell was accused of sexually assaulting two girls. His defense at trial was mistaken identity. On the fourth day of trial, the State called a late-discovered eyewitness. Liddell moved to exclude the witness or allow a continuance to prepare accordingly. The trial court denied both requests but ensured Liddell an opportunity to depose the witness before he appeared. The new witness testified that Liddell was with the victims on the night in question and drove away with them right before the alleged assault. Liddell was convicted as charged. He appeals, arguing that the trial court erred by letting the witness testify and providing no continuance before his testimony. We conclude that the trial court acted within its discretion. First, we find an insufficient showing of misconduct by the State to mandate exclusion of the witness. Second, Liddell was able to depose the witness the day before he testified and cross-examine him at length in court. Finally, Liddell identifies no specific, responsive measures that he was prevented from taking and that he would have pursued had the trial court granted a more substantial continuance. We affirm.
NFP civil opinions today (2):

Involuntary Commitment of J.K. (NFP)

J.J., et al., Alleged to be CHINS; J.W. & T.J. v. IDCS (NFP)

NFP criminal opinions today (6):

Terrell Bryant Nelson v. State of Indiana (NFP)

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

Andrew Cory v. State of Indiana (NFP)

Rikki L. Vestal v. State of Indiana (NFP)

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

Davy Lee Phipps v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 11, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Convicted Elkhart rapist doesn't have to register for sex offender list"

The COA opinion May 6th in Jamie L. Vida v. State of Indiana (NFP) (ILB summary here) is the subject of a story by Justin Leighty of the Elkhart Truth:

GOSHEN -- A convicted Elkhart rapist doesn't have to be registered as a sex offender, an appeals court ruled Friday in overturning a local judge's ruling.

Jamie Lee Vida, 39, of 3133 Kelsey Ave., should be taken off the Indiana Sex and Violent Offender Registry, the Indiana Court of Appeals ruled.

Vida was convicted of rape and criminal deviate conduct in 1995, after the registry took effect in 1994, according to the appeals court's ruling. But the crimes actually happened slightly more than three weeks before the registry became law, the appeals court ruled.

The appeal came after Judge George Biddlecome of Elkhart Superior Court 3 ruled that Vida had to register because "he had not yet even been convicted when the (Registration) Act went into effect," according to the appeals court.

The appeals court judges ruled, however, that "Because Vida committed his sex offenses before the Act became effective, the Act is unconstitutional as applied to him" under the ex-post-facto clauses of the U.S. and Indiana constitutions. * * *

Even the Indiana Attorney General's office, which serves as prosecutor in appeals, conceded that the registration law shouldn't apply to Vida.

The court of appeals ordered Vida's case sent back to Biddlecome, instructing him to grant Vida's petition for removal from the state's registry.

Posted by Marcia Oddi on Wednesday, May 11, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - "How federal agents busted prostitution ring"

This Elkhart Truth story today links to:

The criminal affadavit filed in U.S. District Court Southern District of Indiana last week [that] outlines how officials came to believe a group of people were running a series of brothels in several states.

The document details how the federal agents conducted the sting operation to shut them down.

A 71-page document filed in U.S. District Court in Indianapolis last week gives some details about the prostitution house in Elkhart.

Posted by Marcia Oddi on Wednesday, May 11, 2011
Posted to Indiana Courts

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

In Bloomfield State Bank v. U.S. (SD Ind., McKinney), a 9-page opinion, Judge Posner writes:

The question presented is whether a mortgage that assigns future rental income to the mortgagee creates a security interest that takes priority over a federal tax lien. The answer depends on whether such an assignment constitutes an “interest in property acquired by contract for the purpose of securing payment or performance of an obligation” and whether when the interest is acquired “the property is in existence and the interest has become protected under local law against a subsequent judgment lien arising out of an unsecured obligation.” 26 U.S.C. § 6323(h)(1). Only the application of the clause that we have italicized is at issue. * * *

[B]ecause the bank had a lien on the real estate, the rentals were proceeds. By virtue of the rental-income provision in the mortgage, the bank had a separate lien on the rents, but that is not the lien on which it is relying to trump the tax lien. The lien on which it is relying is the lien on the real estate. If an asset that secures a loan is sold and a receivable generated, the receivable becomes the security, substituting for the original asset. The sort of receivable to which the statute denies priority over a federal tax lien is one that does not match an existing asset; a month’s rent is a receivable that matches the value of the real property for that month.

The judgment is reversed and the case remanded with directions to enter judgment for the bank.

Posted by Marcia Oddi on Wednesday, May 11, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on "Recount Commission must move swiftly"

As the NWI Times did in an editorial yesterday, an editorial today in the Indianapolis Star lays out the options for Charlie White, and the consequences, but comes up with a different recommendation:

There are four possible outcomes of White's self-inflicted fiasco, only one of which would allow him to remain in office. One, the Indiana Recount Commission rules that White was ineligible to run for office. That decision would mean that Democrat Vop Osili, the candidate with the second highest vote total in the race, would be declared the winner. Two, White is convicted of at least one felony count and is automatically removed by law from office. Three, White -- finally heeding the call of leaders from his own party, of newspaper editorial boards and of thousands of ordinary Hoosiers -- resigns from his post. Four, the Recount Commission upholds White's eligibility and the courts rule that he didn't break the law, thus allowing him to complete his term.

The first option -- the second-place finisher is declared the winner -- would be far from ideal. Vop Osili would be well qualified to serve (The Star Editorial Board endorsed him for the office last fall). But the precedent of installing in office a candidate whom voters rejected should be avoided.

Both the second and fourth scenarios would take months to play out. Although the Recount Commission is expected to rule on the matter in June, it's unlikely that either the defense or the prosecution would want to rush the criminal proceedings. That means White's office would continue to hang in limbo and that the public would continue to be saddled with a key state official who's under criminal indictment.

That leaves option three -- White resigns immediately, with the governor appointing a replacement -- as the best for the state and its residents. That White has refused to minimize the damage he's inflicting on Indiana says much about why he's unfit for statewide office in the first place.

Posted by Marcia Oddi on Wednesday, May 11, 2011
Posted to Indiana Government

Ind. Decisions - "NIPSCO, EPA settlement on pollution sent back by fed court judge"

Teresa Auch Schultz reports in today's Gary Post Tribune:

A federal judge cited problems with an agreement between the Northern Indiana Public Service Co. and the U.S. Environmental Protection Agency to settle a dispute over the power company’s alleged pollution.

U.S. District Judge Joseph Van Bokkelen said in his order, filed Monday in the U.S. District Court in Hammond, that the motion for a consent decree between the parties was “incomplete” and needed to address how it was fair to all parties, as the motion claimed to be.

Van Bokkelen said in the ruling that it was obvious how the agreement was fair to the EPA but not how it was fair to NIPSCO or Indiana. He adds that the agreement doesn’t discuss how the changes would affect NIPSCO’s customers.

He also questioned the distribution of a $3.5 million fine that NIPSCO has agreed to pay. Under the current agreement, the federal government would get $3.3 million, while the state of Indiana would receive $200,000.

“The motion does not explain the reason for this seemingly lopsided apportionment,” the judge wrote.

The proposed agreement filed in January was supposed to resolve the fight over equipment NIPSCO installed in the 1980s and 1990s at its Michigan City, Chesterton and Wheatfield plants that did not meet requirements for removing pollutants.

Here is an entry on the initial settlement, from Jan. 14th, 2011.

Posted by Marcia Oddi on Wednesday, May 11, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Indiana justices uphold 'no-knock' warrants"

Updating yesterday's ILB entry on the two Supreme Court opinions, and this NWI Times report, Mark Kiesling, columnist for the NWI Times, writes today: "No-knock rule a step down the wrong road." The column begins:

Further evidence was provided by the Indiana Supreme Court this week that Indiana is going to become a police state.

Police serving warrants, the court ruled in a unanimous 5-0 decision, may knock down your door with no announcement if they have "reasonable" suspicion that you are a rascally wrongdoer.

Previously, police could knock, announce themselves as law enforcement officers and then kick your door to smithereens.

Or they could apply to a court for a "no-knock" order, which said in effect that giving the suspects warning would give them time to dispose of evidence or contraband or jump out a window and drive away.

Tuesday, the state's high court ruled that if circumstances determine, the cops may bust down your door without so much as saying, "Avon calling."

I've got a lot of cop friends, the result of my 25 years of covering cops and courts before becoming a columnist. And I have heard time and time again the frustration they have felt by getting into a house moments too late.

They hear the sound of a flushing toilet. There goes the marijuana, or the coke, or the meth, or the crack -- the sewer systems are stoned from here to Lafayette.

And with it goes the evidence. So a drug dealer beats the rap.

But I've also seen the flip side of this coin.

[Updated May 12, 2011] See also Niki Kelly's story in the FWJG.

Posted by Marcia Oddi on Wednesday, May 11, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. courts - More on: PPIN files for temporary restraining order and injunction in U.S. District Court

Heather Gillers and Jon Murray report this morning in the Indianapolis Star that the TRO ruling be issued early this afternoon. Some quotes from the long story:

After hearing both sides of the argument, Pratt announced she would give a decision at noon today, said Kenneth Falk, legal director of the American Civil Liberties Union of Indiana, who is representing Planned Parenthood. * * *

The bill will cut off about $2 million of the $3 million Planned Parenthood of Indiana receives annually in federal funds and make Indiana the first state to prohibit the use of Medicaid at Planned Parenthood. It also gives Indiana some of the strictest abortion rules in the nation. For example, doctors would be required to tell patients that life begins at fertilization and that a fetus can feel pain at or before 20 weeks.

Planned Parenthood and the ACLU argue that forcing doctors to give information -- information they claim is not factual or relevant to the patients and can be misleading -- violates First Amendment free-speech protections.

The lawsuit also contends that the new law's defunding provision, by taking effect immediately, would void contracts and grants already in effect, violating the U.S. Constitution's contract clause. The suit also says that the law imposes an unconstitutional condition on Planned Parenthood by requiring it to choose between performing abortions and receiving non-abortion-related funding, and says that the measure runs afoul of federal Medicaid law.

That Medicaid law also is a concern for the Family and Social Services Administration. The agency fears it will lose all $4 million of its family-planning funding if the state ignores a federal prohibition on picking and choosing which family-planning providers can receive Medicaid dollars.

The portion of the bill requiring doctors to make statements to patients does not take effect until July. The restraining order would keep the defunding provision from being enforced until the court determines whether the law should stand.

In deciding whether to hand down the restraining order, Pratt must consider whether Planned Parenthood is likely to prevail, which side would be harmed more if the law is allowed to take effect and what is in the public's interest.

Joel Schumm, a professor at the Indiana University School of Law-Indianapolis, said the claims based on contract violations and the First Amendment appear strong.

"If you're balancing harms (to each side), a woman's interest in reproductive freedoms is a significant constitutional right," Schumm said, "as opposed to the state's argument, which is how to spend money." And the physician instruction provision "is a new requirement that didn't exist before," he said, so putting it on hold while its legality is hashed out wouldn't harm the state.

[More] Niki Kelly of the Fort Wayne Journal Gazette writes:
U.S. District Court Judge Tanya Walton Pratt heard about 30 minutes of arguments after she dismissed a separate jury trial. She is expected to issue a temporary ruling today.

House Enrolled Act 1210 prohibits state or federal funding from going to entities that provide abortions.

“This is obviously irreparable and certain harm, and the harm is now,” said Ken Falk, legal director for the American Civil Liberties Union of Indiana – acting on behalf of Planned Parenthood of Indiana.

Falk sought a temporary restraining order blocking the law, which became effective the moment Daniels signed it.

Falk argued Planned Parenthood will lose about $1.5 million in Medicaid family planning money.

And starting this morning, Falk said Planned Parenthood can no longer provide Medicaid-covered services to its patients, such as cancer screenings, birth control and sexually transmitted disease testing.

The organization is already prohibited from using federal money for abortions at its facilities.

In general, Falk argued the state law violates a federal law giving citizens the right to choose from any provider of family planning services.

And he said the state doesn’t have the right to unilaterally cancel contracts.

He said the state is not hurt by remaining under a status quo system while the case is fully litigated, but “the public interest is not going to be served by turning these people away in the morning.”

Thomas Fisher, solicitor general in the state Attorney General’s Office, argued there is no immediate harm under the law because Planned Parenthood is free to continue providing the services and bill up to a year later for payment if its lawsuit is ultimately successful.

And he said it’s not against federal law to disqualify a provider – just as an organization that commits fraud or is unsanitary can be removed.

“In our view, this is merely adding to the qualifications of who can be a proper Medicaid services provider,” Fisher said.

He also noted Planned Parenthood could legally carve out its non-abortion services so the federal money is not affected.

Pratt asked why the legislature put an emergency effective date on the bill, to which Fisher responded, “This was so important to them. They wanted to keep the state from going forward with indirect subsidizing of abortion with Medicaid funds.”

Posted by Marcia Oddi on Wednesday, May 11, 2011
Posted to Indiana Courts

Ind. Gov't. - "Internal emails shed additional light on Duke-IURC scandal"

Another amazing story today from John Russell of the Indianapolis Star, that fills in some of the holes in (or adds depth to) the earlier stories. I started highlighting halfway through the story, with the paragraph that began:

The buzz started as early as May, even before Reed joined Duke, according to one email.

"Rumor is making the rounds at the Commission that we are hiring Mike Reed and Scott Storms," Melanie D. Price, a Duke lawyer, wrote to colleague Kelley Karn in an email May 13. "Not sure where it came from, but Bob Pauley (an IURC staffer) is telling folks."

Karn, Duke's top regulatory lawyer in Indiana, had met with Storms several times to see whether he was interested. But she was later told by her superiors not to hire another IURC official, a sentiment that Rogers had expressed.

Reed wasn't deterred. "I'm still working on the 'you' issue with Duke mgt," Reed wrote to Storms in an email June 27. "Don't sense a concern about making this happen, rather more of an issue of when and how."
Push to please regulator

But Karn was in a bind. Hiring Storms might set off criticism from consumer groups. But not hiring him, she seemed to feel, could upset Hardy, the powerful chairman of the IURC.

Karn turned to her boss at Duke's corporate headquarters in Charlotte, N.C., for guidance. "This could all blow up with Hardy being mad that we won't hire Scott," she wrote in an email July 1 to her boss, Catherine Stempien, senior vice president for legal services. "I'm really not sure how to get out of this mess."

Stempien said she would talk with Reed the following week. "Or do you think I need to act sooner?" she asked.

But Reed was working the issue hard with Turner. On July 20, he wrote to Turner, the second-highest executive at Duke, saying he had recently had dinner with Hardy. "Some reason, (he is) still mad at you," Reed wrote. He suggested that Turner call Hardy the next day to smooth things over. A topic for discussion, Reed said, should be Storms.

"(Hardy) wants to close the deal or move on," Reed wrote. "Important to him, and I think real good for us."

Another topic of discussion, Reed said, should be Edwardsport. "If mood is right, set the 'what if' on Eport," Reed wrote.

A week later, on July 26, Turner wrote to Reed, talking about several issues in Indiana, including Hardy's future. "Let's put our heads together on this vis-a-vis Hardy as well," he said. "I hate to see him grow bitter as he gets closer to handing over the reins. He's too good a guy to lose his cool at this point in his career."

Reed immediately replied, asking whether Rogers had "provided any feedback" on Storms. "That will ease some tensions, if (Rogers) agrees to proceed," Reed wrote.
Link to governor's office

On the same day, Turner seemed to pick up an important ally in the Statehouse: David Pippen, general counsel to Daniels. Turner sent an email to Rogers on July 26, saying he had "just talked with Pippen" and it would "be fine" to move forward with discussions on Storms.

"I was pleasantly surprised by how positive and supportive the gov's chief counsel was," Turner wrote.

The very next day, Turner had good news for Reed. In an email containing the subject line "Storms," Turner wrote: "Got OK from Rogers to hire him."

A Daniels spokeswoman, Jane Jankowski, took issue Tuesday with the suggestion that Pippen had supported the idea of Duke hiring Storms.

"There was no discussion of Duke hiring Storms," she wrote in an email. "Pippen was asked about Storms' work as a state employee. Any other characterization is Turner's."

The lengthy story continues on before it concludes:
"Many of the actions of Duke's upper management appear consistently targeted at pleasing the former commission chairman (Hardy) and increasing the likelihood the Edwardsport cost overruns would be passed on to ratepayers," he said, "regardless of whether such costs are reasonable or whether the plant has been constructed efficiently."
Plus, the Star has posted online a new stack of emails, 19 pages worth. A review reveals a number of items not covered in the story today.

Here is a list of earlier ILB entries containing "John Russell" references.

Posted by Marcia Oddi on Wednesday, May 11, 2011
Posted to Indiana Government

Tuesday, May 10, 2011

Ind. courts - PPIN files for temporary restraining order and injunction in U.S. District Court

Late this afternoon, at 4:38 PM, shortly after Governor Daniels announced that he had signed HEA 1210 into law, Planned Parenthood of Indiana's attorney, the American Civil Liberties Union of Indiana , filed in federal court here in Indianapolis for a temporary restraining order and injunction to keep HEA 1210, a law concerning abortion, from going into effect. The first SECTION of the new law, which is effective immediately, bars the State of Indiana from entering into contracts with, or making grants to, any entities (other than hospitals and ambulatory surgical centers) that provide abortions. PPIN believes the law is unconstitutional and violates federal law.

Here is the 16-page complaint filed by PPIN.

Here is the 36-page brief filed by PPIN. From the introduction:

Recently enacted House Enrolled Act 1210 (effective in part on May 10, 2011, and in part on July I, 2011), has the effect of prohibiting certain entities that perform abortions from receiving any state funding, including funding for services unrelated to abortions. The statute also cancels existing contracts that the State of Indiana has with the entities. Although not mentioned by name in the new statute, the largest--if not the only entity--that is affected and penalized by the law is Planned Parenthood of Indiana (PPIN). Through Medicaid, the federal Preventive Health Services Block Grant, and Titles V and XX of the federal Social Security Act, PPIN is the recipient of funding to provide basic health services, education, family planning, and social services to thousands of Hoosiers. None of these services has anything to do with abortions. These contracts have now all been cancelled. The cancellation of existing contractual obligations is unlawful under the Contract Clause, U.S. CONST. art I, § 10, cl. I. Moreover, Medicaid recipients have an explicit federal statutory right to receive services from any Medicaid-eligible provider, and PPIN remains such a provider. Therefore, the law violates Section 1396a(a)(23) of the Medicaid Act. The State of Indiana's attempt to add new conditions, not present in federal law, to its pass-through of federal funds to PPIN is preempted by federal law and is unlawful. Finally, penalizing PPIN because it provides abortion services represents an invalid and unconstitutional condition imposed by the State.

House Enrolled Act 1210 also modifies the infonned consent infonnation that PPIN and its practitioners who practice or assist with abortions must give to their patients receiving abortion services. Women must now be told both that "objective scientific infonnation shows that a fetus can feel pain at or before twenty (20) weeks of postfertilization age" and that "human physical life begins when a human ovum is fertilized by a human spenn." Given that PPIN does not perfonn abortions past the first trimester of pregnancy--indeed, at least 92% of all Indiana abortions occur in the first trimester--and that there is absolutely no evidence that fetal pain can occur during this period, the information compelled by the fonner statutory provision is misleading and irrelevant and violates the protections given to PPIN and its employees to be free from compelled speech. The latter compelled infonnation, conceming when human physical life begins, does not concem a fact at all, but represents an opinion or belief that the State is demanding that PPIN and its employees mouth. This also violates the constitutional protection against compelled speech.

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to Indiana Courts

Ind. Gov't. - Fourteen bills remain

Fourteen bills remain to be acted on by Friday, including SEA 215, forfeiture. See ILB entry from Sunday here re the forfeiture bill.

Also HEA 1112 (Land application of industrial waste products), HEA 1416 (Credit time), SEA 480 (Video service franchises).

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to Indiana Government

Ind. Gov't. - Governor vetos University Boards of Trustees bill, and signs a number of controversial measures

Here is the updated Bill Watch page.

The governor has vetoed HEA 1177, Boards of Trustees for Universities. His veto message:

“I have chosen to veto HEA 1177, which would require that the majority of the members of the board of trustees of both Indiana University and Ball State University be residents of Indiana, and that all members of the I.U. board be citizens of the United States.

“While in practice this may always be the case, to require it by law expresses a narrow and provincial outlook inconsistent with the global role and stature we hope these schools will aspire to and attain. Also, the day may well come when these world-class institutions will want to include illustrious alumni from around the globe on their boards. The universities should not be denied such opportunities, nor future governors prohibited from making such appointments.” [ILB emphasis]

The governor also signed HEA 1001, the state budget bill, and offered this comment [ILB - signing statement] about the included automatic taxpayer refund:
“I’m very pleased at the enactment of the automatic taxpayer refund, though I would have preferred a simpler, cleaner version that gave any refund entirely back to taxpayers.

"Our administration ended the practice of skipping payments to the Teachers Retirement Fund and hope Indiana will never return to it. Assuming that’s correct, additional payments would be unnecessary and immaterial.

"If and when there is a refund, the legislature should examine a distribution that is per capita rather than pro rata, which would be far simpler and also more meaningful to people of modest means.”

In addition, his press release this afternoon reports that:
The governor signed 80 bills into law today, including the final pieces of his 2011 legislative agenda, which include a corporate income tax reduction, the broadening of public-private partnerships for infrastructure, legislative and congressional redistricting and the move of school board elections to the fall.

Other bills of interest signed today include: SEA 251 (clean energy), SEA 292 (premption of local firearm regulation), SEA 431 (dept. of toxicology), SEA 506 (handgun possession), SEA 590 (immigration), HEA 1129 (texting while driving), HEA 1210 (abortion and Planned Parenthood), HEA 1216 (public works projects) and HEA 1402 (Prohibiting resident tuition for illegal aliens).

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to Indiana Government

Courts - "When a Home Birth Ends in Tragedy, Can the Midwife Go to Jail?"

That is the title to a story posted yesterday on Slate. reported by Libby Copeland. The ILB has posted several earlier entries relating to midwifes.

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to Courts in general

Ind. Decisions - "Court: Police serving warrant may enter without knocking if circumstances justify it"

Dan Carden of the NWI Times has posted this story about today's Supreme Court rulings in Lacey and Wilkins. The story begins:

INDIANAPOLIS | The Indiana Supreme Court ruled Tuesday that police officers serving a warrant are not required to knock and announce themselves before entering a home if exigent circumstances justify it.

In a pair of 5-0 decisions, the court said it could not possibly list all of the reasons police may be justified in entering a home and serving a warrant without knocking.

In general, the court said if officers serving a warrant determine a suspect may escape, evidence may be destroyed, officer safety is impaired or have any legitimate reason to enter without knocking, they may do so.

"The reasonableness of a decision by police to enter without first knocking and announcing their presence must be evaluated in light of the totality of the circumstances at the time of such entry," wrote Justice Brent E. Dickson in the court's decisions.

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In State of Indiana v. Charles Black , a 12-page opinion, Judge Kirsch writes:

The State of Indiana appeals from the trial court‟s discharge of Charles Black, who had been charged with dealing in cocaine as a Class A felony, possession of marijuana as a Class D felony, possession of a controlled substance as a Class D felony, maintaining a common nuisance, a Class D felony, possession of a firearm by a serious violent felon, a Class B felony, and was alleged to be an habitual offender. The State raises the following issue for our review: whether the trial court erred in granting discharge on the basis of an alleged violation of Indiana Rule of Criminal Procedure 4(C) (“Criminal Rule 4(C)”) where Black and his counsel were present when Black‟s trial date was scheduled outside the one-year period and yet raised no objection to that date. We reverse and remand. * * *

An August 17, 2010 entry in the CCS provides: “Comes now the Court on its own motion and resets this matter with the agreement of the State and Defendant’s counsel for trial by jury on 11/16/10 at 9:00 a.m. (1st choice).” By agreeing to a new trial date outside the parameters of Criminal Rule 4(C), Black acquiesced a second time to his trial being delayed, and, again, waived his right to be discharged under Criminal Rule 4(C). It was error for the trial court to discharge Black pursuant to Criminal Rule 4(C).

ILB: Like State v. C.D, which the ILB wrote about on May 4, 2011, Black is another case where defendant had no counsel on appeal.

In Maria Patricia (Franco) Suarez v. State of Indiana, a 5-page opinion, Judge Kirsch writes:

By interlocutory appeal, Maria Patricia (Franco) Suarez (“Suarez”) challenges the post-conviction (“PCR”) court’s denial of her request for a complete record of her guilty plea hearing, including the Spanish language portions of the hearing. She contends that the PCR court erred in this denial because it undermined her ability to pursue an effective petition for PCR and was contrary to Indiana law. We reverse. * * *

Here, because Suarez’s counsel had detected an irregularity in the translation between Suarez and the interpreter, she sought to obtain a copy of the recording of the hearing to have an independent State-certified interpreter translate the Spanish portions of the hearing which were of legal concern. The State did not object to the request, and the PCR court granted the request, only to reverse this ruling at the next status hearing. The PCR court seemed to base this denial on the fact that it had already provided a transcript of the English portion of the hearing and that was all the court was required to do. * * *

Indiana Criminal Rule 5 requires the electronic recording of any and all oral evidence and testimony in criminal proceedings. Criminal Rule 10 requires that all guilty plea proceedings be electronically recorded. Under the criminal rules and from the record of the PCR proceedings, the electronic recording of Suarez’s guilty plea hearing was in the court’s possession and available to the parties to listen to and review.

There was no assertion by either party that either the Spanish portions of the guilty plea hearing, or the proceeding itself, was privileged or confidential in any way. Under Indiana Administrative Rule 9(D), the guilty plea hearing was a public court record that should be available to Suarez. Therefore, we agree with both parties and conclude that the PCR court abused its discretion when it denied Suarez’s request to have access to the electronic recording of her guilty plea hearing, whether by providing a copy of the recording or allowing access under court supervision.

NFP civil opinions today (3):

Jeffrey W. Brinkman v. Lisa A. Brinkman (NFP)

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

Adoption of E.F.: R.F. and S.F. v. J.N. and K.N. (NFP)

NFP criminal opinions today (1):

Lavonta Henry v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer improvidently changed in Peete v. State [Corrected]

The Supreme Court, in an order filed yesterday in the case of Tonya Peete v. State, ruled:

By order dated April 7, 2011, the Court granted transfer of jurisdiction in this criminal appeal and vacated the Court of Appeals not-for-publication memorandum decision. After further review, including oral argument, a majority of the Court has determined that transfer of jurisdiction was improvidently granted. Accordingly, the order granting transfer of jurisdiction is VACATED.

The transfer petition filed by Appellant Pete is DENIED. See App. R. 58(B). The Court of Appeals not-for-publication memorandum decision, Peete v. State, No. 49A05-1004-CR-220, slip op. (Ind. Ct. App. Nov. 24, 2010), is no longer vacated and is REINSTATED.

From the April 11th ILB transfer list summary:
Tonya M. Peete v. State of Indiana (NFP) is a Nov. 24, 2010 opinion that concluded: "We conclude that the evidence presented at trial was sufficient to support the trial court's determination that Peete was indeed served with the ex parte protection order and therefore twice intentionally or knowingly violated it by contacting Watson."
The ILB is confused by the Court's statement "After further review, including oral argument," as oral argument has not been held by the Court.

[Correction at 3:50 PM]
An ever-alert reader points out that the Supreme Court held oral argument in Peete on April 27th at 9:00 AM, and you may watch it at the link.

A second reader writes to say: "It was originally set in May but then moved up to April 27." Apparently in place of Clancy, which the ILB had listed for that date and time, but which was cancelled. Sorry for overlooking the change ...

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Decisions - Homeowners' Lose Sewer Suit Against City

This Oct. 28, 2010 ILB entry reported that the Supreme Court that day had heard oral argument in the case of The City of Indianapolis, et al. v. Christine Armour, et al. and that 6News was there. A quote from its story at the time:

The sewer project connected 180 homes. At least 31 homeowners in the Northern Estates subdivision paid the full price for the connection, upfront, but some didn't, and the city says they don't have to.

Bill Main, 70, has lived in his home for 36 years. In 2004, he said he paid the city $9,278 for his sewer connection.

"My next door neighbor ended up paying $638 for the exact same thing that I paid over $9,000 for," Main said.

So far, three courts and five judges have ruled in the homeowners' favor.

See also this Dec. 30, 2009 ILB entry re the COA opinion that ordered the city to issue refunds of $8,968 to 30 households in the Northern Estates subdivision.

In today's 23-page, 3-2 Supreme Court opinion in City of Indianapolis, et al. v. Christine Armour, et al, Justice Sullivan writes:

The City of Indianapolis abandoned the Barrett Law method of financing sewer im-provements in favor of a new system that imposes less of a financial burden on property owners. To ease the transition, the City discharged all outstanding Barrett Law assessments owing as of November 1, 2005, but did not give refunds to those property owners who had previously paid their Barrett Law assessments in full or in part. We hold that the City did not violate the Equal Protection Clause of the Fourteenth Amendment because forgiving only the outstanding assess-ment balances was rationally related to a legitimate governmental interest. * * *

Conclusion. We hold that Resolution 101 does not violate the Equal Protection Clause of the Fourteenth Amendment because it is rationally related to legitimate governmental interests. Accordingly, we reverse the decision of the trial court and remand with instructions to grant judgment for the City on the plaintiffs' federal equal protection claim.

Shepard, C.J., and David, J., concur.

Rucker, J., dissents with separate opinion in which Dickson, J., concurs.

[That begins, at p. 21 of 23] I am not persuaded that the City has advanced a rational basis for its classification be-tween property owners who chose to pay their Barrett Law assessments in a lump sum and those who elected to pay in installments. Instead, I am of the view that Resolution 101 violates the Equal Protection Clause of the United States Constitution as applied to the homeowners in this case. Therefore I respectfully dissent. * * *

To be sure the City advanced multiple post-hoc rationalizations for the differential treatment. But such arguments do not obviate the failure of the Resolution to pass rational basis scrutiny on the reasoning set forth in its text.

This is not a case like Clover Leaf, where the classification between plastic and non-plastic milk cartons satisfied equal protection concerns and there was evidence the legislature rationally believed the classification would further the stated objective of reducing solid waste, despite empirical evidence to the contrary. See Clover Leaf, 449 U.S. at 463-64, 469. Here, there is no indication that the Board even believed the classification would further its stated objective. The stated purpose in Resolution 101 simply fails to express any connection to the distinction between residents who elected to pay their assessments in a lump sum and those who elected to pay in installments. In my view this disconnect demonstrates that the classification fails to have “a fair and substantial relation” to the statutory objective. See Allied Stores, 358 U.S. at 527. I therefore agree with the Court of Appeals and would affirm the trial court's grant of summary judgment in favor of the homeowners.

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Three opinions today from the Supreme Court

In Damion J. Wilkins v. State of Indiana, a 5-page, 5-0 opinion, Justice Dickson writes:

Facing charges of Unlawful Possession of a Firearm by a Serious Violent Felon as a Class B felony and Possession of Marijuana as a Class A misdemeanor, the defendant, Damion J. Wilkins, sought to suppress evidence obtained when police executed a search warrant. The trial court denied his motion, and he was permitted to take this interlocutory appeal from the denial. The Court of Appeals reversed. Wilkins v. State, 930 N.E.2d 652 (Ind. Ct. App. 2010). We granted transfer and now affirm the denial of his motion to suppress. * * *

This interlocutory appeal is a companion appeal to one brought by Wilkins's co-defendant, Cornelius Lacey. Both co-defendants sought suppression of the evidence resulting from the no-knock execution of a warrant for the search of the residence in which they were lo-cated. Our opinion in Lacey's appeal is issued contemporaneously with this opinion.

The defendant presents three arguments to support his challenge to the no-knock entry. One of these is his contention that the exigent circumstances should have been first presented to a neutral and detached judicial officer to determine if the circumstances justified a no-knock en-try and search. As addressed more fully in our opinion today in Lacey, we reject this argument. The police were not required to present known exigent circumstances and obtain specific judicial authorization before executing a no-knock entry.

Secondly, the defendant asserts that the no-knock execution of the warrant, even if permitted under the federal and state constitutions, nevertheless violated Indiana Code § 35-33-5-7.1 He argues that the statute expresses clear legislative intent to require officers to first announce their presence before any forcible entry. In Lacey, we noted with approval that this contention was rejected in Beer v. State, 885 N.E.2d 33, 42–43 (Ind. Ct. App. 2008), trans. not sought. The defendant urges that Beer was incorrectly decided and that the statute should not be construed to permit exigent circumstances to justify an officer to bypass the knock and announce requirement when executing a warrant. We disagree and decline to further revisit Beer.

His third contention is that the factual circumstances presented in the record did not constitute sufficient exigent circumstances to justify the police bypass of the knock and announce rule. This issue was not presented in Lacey. Wilkins argues that the exigent circumstance relied upon by the State was officer safety, that this came from Wilkins's prior conviction for armed robbery in a home invasion and resisting arrest, and that the State failed to establish that the police had any expectation that Wilkins would be present during their search of Lacey's residence, thus resulting in an unreasonable search prohibited by the state and federal constitutions. * * *

The defendant asserts that the execution of the warrant violated the Search and Seizure Clauses in the United States and the Indiana Constitutions, but he does not separately argue any independent basis for his claim under the Indiana Constitution. Because he provides no authority or independent analysis supporting a separate standard under the state constitution, any state constitutional claim is waived. * * *

Because the defendant presents his claim of constitutional violation as a basis to support his motion to suppress, and suppression is not appropriate under federal law, we affirm the trial court's denial of his motion.

We find that the defendant is not entitled to suppression of the evidence on these claims of error related to the no-knock entry. Having summarily affirmed the Court of Appeals as to his other appellate claims, we now affirm the trial court's denial of his motion to suppress.

In Cornelius T. Lacey, Sr. v. State of Indiana, an 8-page, 5-0 opinion, Justice Dickson writes:
In this interlocutory appeal, the defendant challenges the trial court's denial of his motion to suppress evidence obtained from the execution of a search warrant by police forcing their way into his residence without first knocking and announcing their presence. The Court of Appeals reversed. Lacey v. State, 931 N.E.2d 378 (Ind. Ct. App. 2010). We granted transfer and hold that the Indiana Constitution does not require prior judicial authorization for the execution of a warrant without knocking and announcing when justified by exigent circumstances known by police when the warrant was obtained. Because judicial officers may issue advance authorizations for police to bypass the knock and announce requirement, however, the better police practice is to minimize legal uncertainty by seeking such advance approval when supported by facts known when the warrant is sought. * * *

In conclusion, we hold that Article 1, Section 11 of the Indiana Constitution, which prohibits unreasonable search or seizure, does not require prior judicial authorization for the no-knock execution of a warrant when justified by exigent circumstances, even if such circumstances are known by police when the warrant is obtained. Rather, courts will assess the reasonableness of entry based on the totality of the circumstances at the time the warrant was served. Constitutional uncertainty may be minimized when police, knowing in advance of the need to execute a warrant without complying with the knock and announce requirement, present the known facts when seeking the warrant and obtain express judicial authorization for a no-knock entry. This is certainly the better practice.

This appeal does not argue that the factors actually relied on by the police were inadequate exigent circumstances to justify the no-knock entry, and thus such claim is not presented.

As to the defendant's contention that police should have presented known supporting facts and obtained an advance judicial authorization for the no-knock entry, we hold to the con-trary, as explained above. As to all other issues, we summarily affirm the decision of the Court of Appeals. The trial court's denial of the defendant's motion to suppress is affirmed.

City of Indianapolis, et al. v. Christine Armour, et al. - This will be covered in a separate ILB entry.

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Why Do Few Indiana Women Hold High-Profile Political Seats? Politicians, Experts Weigh In On Gender Discrepancy"

The ILB has written frequently about the fact that there are no women on the five-man Indiana Supreme Court, drawing unfavorable comparisons to nearly every other state.

And, as seen in the just-ended legislative session, it seems that it is men, perhaps by the fact that they do "rule the halls of the Indiana Statehouse," who are the policy makers when it comes to "social issues" affecting women.

Yesterday, 6News' Trisha Shepherd has a featured story on the state elected offices that began:

All of Indiana's seats in the U.S. House and Senate are filled by men, and Indiana is one of only 12 states that have never had a female governor or senator.

For most of the last 200 years, men have also ruled the halls of the Indiana Statehouse. Women have made big strides in recent decades, but they're still greatly outnumbered in state politics.

One remarkable "profiling" quote from the story:
"Women have a lower tolerance for the negativity, the partisan attacks that occur in the kind of campaigns that we see nowadays," said Dan Parker, Indiana Democratic Party chairman.

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to Indiana Government

Courts - "Courts nationwide hold hearings with video"

Colleen Long reports in this long AP article in the Sunday San Francisco Chronicle that begins:

George Villanueva, charged with first-degree murder in the death of an NYPD officer, will not leave jail for months of pretrial hearings.

Instead, he'll be beamed into the courtroom via video as lawyers discuss his case in front of the judge.

Villanueva's case is part of a surge in court appearances done by video in New York and around the country, as cash-strapped communities look for ways to boost efficiency and cut costs. The tools are used in courts large and small, and the savings for some are staggering: $30 million in Pennsylvania so far, $600,000 in Georgia, and $50,000 per year in transportation costs in Ohio.

"We've had to trim our spending wherever we can and still provide what we think is effective constitutional justice, and we're doing that with the help of modern technology," said Pennsylvania State Supreme Court Justice Ronald D. Castille.

[More] Serendipitously, I think, I just received notice of this press release from the Indiana Supreme Court press office, that begins:
The State Public Defender is implementing a videoconferencing system to reduce costs and improve services. The system will allow attorneys to electronically meet with incarcerated clients. Indiana Public Defender Susan Carpenter announced the use of the technology and explained, “This will help us keep communication and travel costs down while still allowing our attorneys to meet with their clients.”

The videoconferencing equipment was installed at the Wabash Valley Correctional Facility in Carlisle in partnership with the Indiana Department of Correction and the Indiana Office of Technology. The equipment resembles a pay phone and is designed specifically for correctional use. It features a video screen and camera (similar to a web cam) that transmits audio and video in real time. All the controls are maintained at the server in Indianapolis, so an offender is connected automatically with the attorney by simply lifting the handset. The equipment was purchased by the State Public Defender for $4630.

Before the videoconferencing system was implemented, attorneys communicated with their clients via mail or in-person meetings. Attorneys would drive from Indianapolis to the Wabash Valley Correctional Facility about 10 times per month, and each trip averaged about $250. Chief Deputy of the State Public Defender, Bill Polansky, coordinated the project and explained, “Substituting videoconferencing for some of the in-person visits will reduce travel time and expense. Videoconferencing will also improve our service to clients by increasing the amount of time we can spend talking with them.”

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to Courts in general | Indiana Courts

Ind. Gov't. - "Recount Commission must move swiftly"

That is the headline to this editorial today in the NWI Times about the Charlie White election challenges that makes these important points about the political ramifications:

The secretary of state is being assailed on two fronts -- the criminal charges against him, of course, but also the Indiana Recount Commission, which is under a court order to take a look at whether White was eligible to run for office in the first place.

The Recount Commission is expected to rule in June.

If the Recount Commission says White was ineligible to run for that office, the second-highest vote-getter, Democrat Vop Osili, would become secretary of state.

If White is convicted of any of the felony charges against him, he would automatically be removed from office, with the Republicans naming his successor. The same would be true if White resigns before either the Recount Commission or the court issues a ruling.

The Rokita Report is all the more reason for the Indiana Recount Commission to determine swiftly yet thoughtfully whether White was eligible to run for office. For White to resign now and be replaced another GOP appointee, or for the Recount Commission to wait for the felony charges against White to be resolved, would further muddy waters that are far from clear.

What would happen to that second appointee if the Recount Commission would then determine White shouldn't have been on the ballot in the first place?

It's best to determine first whether White should even have been eligible to run, so the lingering controversy over last November's election can be resolved.

Here is a very long list of earlier ILB "Charlie White" entries.

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to Indiana Government

Law - "Poker as a Game of Skill"

Patricia Cohen wrote yesterday evening in the NY Times blog, Economix:

Is poker a game of luck or skill? That’s the question the economists Steven D. Levitt (of “Freakonomics” fame) and Thomas J. Miles explore in a new working paper published with the National Bureau of Economic Research. * * *

Last month, the Justice Department indicted executives of the three leading online poker sites that allow Americans to play, charging them with a variety of crimes including bank fraud and running an illegal gambling operation. * * *

The economists contend that according to both state and federal law, “the single most important factor in determining the legality of poker is whether poker is a game of skill or a game of luck.”

The entry has a number of links.

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to General Law Related

Ind. Decisions - More on "Judge: DOC Violating Law By Not Offering Kosher Meals"

Updating this ILB entry from Nov. 4, 2010, quoting from federal Judge Jane Magnus-Stinson's 28-page opinion in Willis et al. v. Comm., IDOC. that the Indiana Department of Correction is violating the law by not offering kosher meals to prison inmates whose religious beliefs require it:

The DOC has failed to meet its burden of persuasion to show a compelling government interest under RLUIPA, an essential element for which it bears the burden. Summary judgment for the Plaintiffs is therefore appropriate on this basis alone. * * *

[E]ven if cost reduction alone were a compelling government interest, DOC has not met its burden of demonstrating that it considered and rejected the many obvious alternatives, and that no feasible less restrictive means existed to achieve that interest. 42 U.S.C. § 2000cc-1(a). On this evidentiary record, the Court has no choice but to find that, as a matter of law, the termination of kosher diets violated RLUIPA, 42 U.S.C. § 2000cc-1(a), and the Court must grant summary judgment in favor of the Plaintiffs.

Here is a story May 9th, 2011 from a Chicago Tribune blog, The Seeker, by Manya Brachear:
The state of Indiana has decided its Jewish prisoners can keep kosher with help from the correctional system's kitchen.

On Monday, the state of Indiana dismissed the appeal of a lower court’s decision to require prisons to find cheap kosher food to feed observant Jewish inmates. The Indiana Department of Corrections already provides vegan and halal meals at a prisoner's request. The Hoosiers concluded that kosher should be no different. * * *

The landmark Religious Land Use and Institutionalized Persons Act requires states to accommodate reasonable religious requests from prison inmates.

One might ask why it took six months for the State to decide to comply ...

Posted by Marcia Oddi on Tuesday, May 10, 2011
Posted to Indiana Decisions

Monday, May 09, 2011

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Johnnie Stokes v. State of Indiana, an 11-page opinion, Chief Judge Robb writes:

Johnnie Stokes was convicted of numerous felonies in 2009. In 2010, pursuant to his appeal, we vacated five of his convictions and remanded to the trial court for resentencing regarding his remaining convictions of robbery, attempted robbery, and unlawful possession of a firearm by a serious violent felon (“UPFSVF”), all Class B felonies, and criminal recklessness as a Class C felony. Stokes v. State, 922 N.E.2d 758 (Ind. Ct. App. 2010), trans. denied. The trial court resentenced him to concurrent terms of twenty years for robbery and ten years for attempted robbery, to be served consecutive to twenty years for UPFSVF, and consecutive to four years for criminal recklessness, for an aggregate sentence of forty-four years. Stokes now raises a single issue which we expand and restate as two: whether the trial court abused its discretion in sentencing him, and whether his sentence is inappropriate. Concluding that the trial court did not abuse its discretion and his sentence is not inappropriate, we affirm. * * *

This extensive history of criminal activity was the basis for the trial court’s imposition of a consecutive sentence for UPFSVF. This lengthy record likewise leads us to the conclusion that a consecutive sentence for UPFSVF is not inappropriate. Stokes has not satisfied his burden to persuade us that his sentence is inappropriate in light of the nature of his offense and his character, and accordingly we must affirm.

NFP civil opinions today (1):

Richard Cunningham v. Sandra Rains (NFP)

NFP criminal opinions today (5):

Brian E. Connell v. State of Indiana (NFP)

Jennings Daugherty v. State of Indiana (NFP)

Ryan Leon Stamm v. State of Indiana (NFP)

George W. Wilson v. State of Indiana (NFP)

Joseph James v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 09, 2011
Posted to Ind. App.Ct. Decisions

Courts - More on seizing of domain names

Earlier ILB entries reported the still-pending case of the Kentucky governor seizing 141 Internet domain names of online gambling sites, and the US DOJ seizing the domain names of "Poker Stars, Absolute Poker, and Full Tilt Poker."

Okay, if the domain name is gone, you can't access the site, right? Wrong, not if you can somehow be redirected to the site when you type in the domain name.

Here is a May 5th story from Wired that begins:

The Department of Homeland Security has requested that Mozilla, the maker of the Firefox browser, remove an add-on that allows web surfers to access websites whose domain names were seized by the government for copyright infringement, Mozilla’s lawyer said Thursday.

But Mozilla did not remove the MafiaaFire add-on, and instead has demanded the government explain why it should. Two weeks have passed, and the government has not responded to Mozilla’s questions, including whether the government considers the add-on unlawful and whether Mozilla is “legally obligated” to remove it. The DHS has also not provided the organization with a court order requiring its removal, the lawyer said.

“One of the fundamental issues here is under what conditions do intermediaries accede to government requests that have a censorship effect and which may threaten the open internet,” Harvey Anderson, Mozilla’s lawyer, wrote Thursday on his blog.

The story links to the questions Mozilla posed to the government.

Posted by Marcia Oddi on Monday, May 09, 2011
Posted to Courts in general

Courts - "Massachusetts Turns on Camera for Court Proceedings"

Fascinating project underway in Massachusetts.

Here is the OpenCourt webpage. It says: "May 9. Today in First Session: arraignments, new summons, arrests, and default removals. Scheduled judge: Honorable Mark S. Coven." When the court is in session, live action is broadcast.

This May 4, 2011 story by Sarah Rich of Government Technology gives a really good overview, and hits on the issues. Here is coverage from Above the Law. Additional stories are listed here.

Posted by Marcia Oddi on Monday, May 09, 2011
Posted to Indiana Courts

Ind. Gov't. - "Online retailer Amazon repays Indiana sales tax policy"

A good story today by the Indianapolis Star's Bruce C. Smith on how Amazon is rewarding Indiana's sale tax policy by building another distribution center in Indiana. A quote from the long story:

The new distribution center appears to recognize Indiana as a distribution hub and for maintaining an environment that does not force the online retailer to collect state sales tax as other states have pressured it to do.

The company did not specifically address the sales tax issue in its written statement, but it did acknowledge Indiana's support.

"We are committed to growth in Indiana because Gov. Mitch Daniels and other state officials have demonstrated their commitment to Amazon jobs and investment," said Paul Misener, vice president of Amazon Global Public Policy.

The "understanding" is also outlined in this April 12, 2011 AP story. Other earlier ILB entries on "sales tax."

Posted by Marcia Oddi on Monday, May 09, 2011
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending May 6, 2011

Here is the Clerk's transfer list for the week ending May 6, 2011. It is two pages (and 20 cases) long.

Two 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. [NOTE: This will be updated this week]

The ILB archive now contains over seven years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Monday, May 09, 2011
Posted to Indiana Transfer Lists

Courts - SCOTUSblog now has special page devoted to health care law challenges

Access it here. The intro:

Welcome to SCOTUSblog's Health Care page, where you can find our coverage (principally by our reporter Lyle Denniston) of, and other resources related to, the legal challenges to President Obama's Affordable Care Act as they make their likely ascent through the lower federal courts to the Supreme Court.

Posted by Marcia Oddi on Monday, May 09, 2011
Posted to Courts in general

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

Here is the answer to "What did you miss over the weekend from the ILB?

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, May 8, 2011:

From Saturday, May 7, 2011:

Posted by Marcia Oddi on Monday, May 09, 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 5/9/11):

Thursday, May 12th

Next week's oral arguments before the Supreme Court (week of 5/16/11):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/9/11):

Next week's oral arguments before the Court of Appeals (week of 5/16/11):

Next Monday, May 16th

Next Wednesday, May 18th

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, May 09, 2011
Posted to Indiana Decisions

Sunday, May 08, 2011

Ind. Courts - More on: New budget bill puts judges' and prosecutors' pay raises in Chief Justice's court

Updating this ILB entry from May 2nd, the Fort Wayne Journal Gazette has a long editorial today headed "Chief Justice Shepard’s decision." It is accompanied by this table:

Pay for county-level judges and prosecutors:
  • 1997-2005…$90,000
  • 2006…$110,500
  • 2011…$125,647
Here are some quotes from the editorial:
As chief justice, Randall Shepard has made countless tough decisions – and not just in deciding the state’s most important criminal and civil cases. * * *

But this decision is unlike any other.

Apparently uncomfortable with the heat, the elected Indiana General Assembly handed off a tough decision to the appointed justice: Whether Indiana judges and prosecutors will receive a raise over the next two years.

One of the hundreds of items added to the budget inexplicably gives Shepard the power to veto raises of about 1.3 percent to judges and prosecutors.

Shepard probably thought this matter had been settled several years ago.

After nearly a decade without a raise, the judicial lobby persuaded legislators in 2005 to grant a big salary increase. Further, lawmakers agreed that the judicial salaries would rise the same percentage as the average raise for other state employees each year, ending the practice of judges coming to lawmakers hat in hand every time a budget is adopted.

Not coincidentally, the raises for legislators are tied to the raises for judges and prosecutors. But lawmakers decided to suspend their own raises for the next two years and, in the House version of the budget, said “no” to more money for judges and prosecutors as well.

Given the economy, “I thought it was unwarranted,” said State Rep. Jeff Espich, chairman of the House Ways and Means Committee.

But the state Senate, which has a reputation of being more deferential to the judiciary than the House, did not want to exclude justices.

As an apparent compromise, lawmakers decided to put Shepard on the hot seat. Now, the state budget has language reading: “A salary increase that would otherwise occur under this section in the state fiscal year beginning July 1, 2011, or in the state fiscal year beginning July 1, 2012, shall not occur unless the increase for that state fiscal year is approved by the chief justice of the supreme court.”

And there are solid reasons to argue either way. County-level judges and prosecutors are making six-figure incomes when many Hoosiers are seeing pay cuts. Asking some of the highest-paid state workers to forgo a raise isn’t unreasonable. But the legislature’s decision to tie judicial raises to other employees was to prevent this type of political wrangling in every budget session.

Whether automatic raises are right is debatable. Lawmakers are elected to make decisions about state workers’ salaries – the automatic increases take that decision away. But the answer isn’t to pick and choose when to allow the automatic increases and when to go through a back door to try to undo them.

For his part, Shepard suffered a pinched nerve and has been taking some sick days from the court. The budget bill just hit the governor’s desk, and Shepard has some time – the raises wouldn’t take effect until July 1.

If he grants the raise, Shepard may face some anger from working Hoosiers struggling to get by. If he doesn’t, Shepard may find that his fellow judges are less than pleased.

Good thing he is accustomed to tough decisions.

ILB: And one more thing, not pointed out in the editorial ...

This is the year the Chief Justice is selected. However, the selection normally takes place at the end of the year.

Article 7, sec. 3 of the Indiana Constitution provides that every 5 years, the Judicial Nominating Commission selects the Chief Justice from the members of the Supreme Court. For more, see this ILB entry from Dec. 12, 2006,

Posted by Marcia Oddi on Sunday, May 08, 2011
Posted to Indiana Courts

Ind. Law - "Police aren't bounty hunters; stop for-profit busts"

This ILB entry from April 29 gives a roundup of the civil forfeiture issue, the Indiana constitution, the pending legislation, and the recent Supreme Court decision.

Saturday the Indianapolis Star published this letter to the editor from Indianapolis resident Lt. Harry Thomas, Cincinnati Police Department (retired):

I was a law enforcement officer when the practice of drug asset forfeiture first came into being. The concept was simple: If we could prove that a suspect had obtained real property using drug proceeds, we could seize the property. This new tactic in the drug war hit drug dealers where they lived.

That lasted until government and law enforcement administrators realized just how much money was out there and how much their budgets could be enhanced by asset forfeiture. The requirement to prove the connection between drug proceeds and assets was dropped. We no longer had to prove that the property was obtained through drug activity, or even to accuse its owner of a crime. If a person had money, we were allowed to take it. It was that simple. If the owner of the money wanted it back, he'd have to file a lawsuit and attempt to prove that the money was not obtained through drug activity. The concept of innocent until proven guilty went right out the window.

Since then, drug asset forfeiture has spiraled out of control. Drug raids using military equipment and tactics that have either been botched or based on fabricated probable cause have resulted in the deaths of dozens of innocent people at the hands of rogue law enforcement officers lusting after money, real estate or automobiles.

It's time for legislators to call a halt. Cops are not bounty hunters, and the practice of for-profit law enforcement must cease. Give the money to the schools. It's true that they'll squander it, but at least they won't kill anyone to obtain it.

SEA 215 is awaiting the Governor's action. It would amend the current law to ensure that less than 15% of forfeiture proceeds go to the Common School Fund. Under the current law, arguably all forfeiture amounts, except for law enforcement costs, are to go to the Common School Fund.

And the current law may itself violate Article 8 of the Indiana Constitution, which requires that all forfeiture money to be deposited in the state's Common School Fund.

The Governor has until Friday, May 13th to act on SEA 215.

Posted by Marcia Oddi on Sunday, May 08, 2011
Posted to Indiana Law

Ind. Gov't. - More on "Fox and coyote penning should be banned"

Updating this ILB entry from May 1st, an Indianapolis Star editorial from May 7th concludes:

Hoosiers can comment on the proposed rule at the Department of Natural Resources website through May 18 and at hearings next week at McCormick's Creek State Park in Spencer and Webster Recreation Center in Plymouth. In a Humane Society poll, 79 percent of men and 90 percent of women wanted Indiana to ban pens, although a proposed bill to do that never got a hearing this year in the General Assembly.

If penning isn't a good idea after next January, then it's not a good idea now -- or ever. Indiana should stop it in its tracks.

To comment on the rule, go to this link.

Here is the link to the Notice of Public Hearing.

Here are the times and locations:

May 10, 2011, at 6:00 p.m., at the McCormick's Creek State Park, Canyon Inn, 451 McCormick Creek Park Road, Sycamore Room, Spencer, Indiana; AND on May 11, 2011, at 6:00 p.m., at the Webster Recreation Center, Plymouth Park and Recreation Department, 110 Webster Avenue, Plymouth, Indiana,

Posted by Marcia Oddi on Sunday, May 08, 2011
Posted to Environment | Indiana Government

Ind. Gov't. - "Tippecanoe County will begin paying a private laboratory to analyze blood samples from people suspected of driving intoxicated for alcohol or traces of drugs"

Updating this long list of earlier ILB entries on problems with the state toxicology lab, Sophia Voravong has this lengthy story today in the Lafayette Journal Courier. Some quotes:

The decision by the prosecutor's office is in response to errors that continue to be uncovered by an audit of the Indiana State Department of Toxicology -- most recently, 61 false marijuana tests out of 3,200 from 2007 to 2009, The Indianapolis Star reported.

Prosecutor Pat Harrington and Chief Deputy Prosecutor Kristen McVey chose AIT Laboratories, based in Indianapolis, to take care of future testing needs after a meeting last week with an AIT representative.

"Until they can get through the backlog of cases, we had to find some other way to get our blood samples tested," Harrington said, referring to the Department of Toxicology. "We'll use AIT for the foreseeable future, until we know how everything at the Department of Toxicology goes." * * *

The agency's audit was requested by former Marion County Prosecutor Scott Newman, who was hired last August to fix problems there. It's based on blood and alcohol results and will eventually cover all cases from 2007 to 2009 in which the lab reported a positive result -- more than 10,000 overall.

As of mid-April, 3,200 marijuana test results had been checked; a total of 333 lab errors, or 10.4 percent, were found, according to The Indianapolis Star.

Two of them were Tippecanoe County cases.

The story then details the two cases.

Posted by Marcia Oddi on Sunday, May 08, 2011
Posted to Indiana Government

Environment - "Group worries about wind farms' effect on Indiana bat"

Amanda Hamon of the Lafayette Journal Courier reported May 7th in a story that begins:

Noise, health concerns, unsightliness -- all have been reasons some residents of Tippecanoe and surrounding counties have opposed a Chicago-based company's plans to build a local wind farm.

An opposition group is adding another concern to the list.

Julie Peretin, a spokeswoman for the Tippecanoe County group RESITE Now, said members are concerned about the presence of the federally endangered Indiana bat at the southwestern Tippecanoe County site where Invenergy Wind LLC is looking to build a wind farm.

"One of our concerns is the bats' importance in agriculture," Peretin said. According to its website, RESITE Now advocates "responsible siting of industrial wind turbines in Tippecanoe County."

"Bats eat insects that directly impact the health of our crops. If a turbine on my neighbor's land is taking out bats that are helping my crop, I'm losing some rights there to an environmentally friendly pest control."

For background, start with this Dec. 9, 2009 ILB entry headed "Appalachian Wind Turbines Kill Bats, Judge Says."

Posted by Marcia Oddi on Sunday, May 08, 2011
Posted to Environment

Ind. Gov't. - "Bad bills temper legislative achievements"

That is the title of this May 7th editorial in the IBJ. A sample: "Issues lawmakers decided to make priorities, or failed to make priorities, confounded us—and added to the unfortunate perception that Indiana is stuck in the past."

Posted by Marcia Oddi on Sunday, May 08, 2011
Posted to Indiana Government

Ind. Gov't. - "Now, to Find a Parking Spot, Drivers Look on Their Phones"

Not here, but in San Francisco. The NY Times story by Matt Richtel reports that city officials in San Francisco have developed a smartphone app that displays information about areas with open parking spaces. A quote:

San Francisco has put sensors into 7,000 metered parking spots and 12,250 spots in city garages. If spaces in an area open up, the sensors communicate wirelessly with computers that in turn make the information available to app users within a minute, said Mr. Ford, of the transportation agency. On the app, a map shows which blocks have lots of places (blue) and which are full (red).

San Francisco’s is by far the most widespread approach that several cities, universities and private parking garages are experimenting with.

Last December, Los Angeles worked with a company called Streetline to introduce a system covering spaces in West Hollywood, and it is expanding the program elsewhere. Streetline has since set up smaller projects on Roosevelt Island in New York City’s East River, as well as at the University of Maryland and in Forth Worth, Tex.

More than 12,000 people have downloaded San Francisco’s app, which is available now only for the iPhone but which city officials say they hope to bring to all similar devices.

Eventually officials hope to be able to make regular adjustments to pricing on parking meters — which can be programmed remotely — and at garages so they can spread out demand, raising prices in areas where competition is fiercest and lowering it elsewhere.

An issue:
When it is started up, the city’s parking app warns drivers not to use the system while in motion. But safety advocates said that might not be sufficient. After all, they say, texting while driving is illegal in California and in many states, but a number of surveys, including one by the Pew Research Center, show that many Americans do it anyway.
Speaking of apps, what ever happened to Indianapolis' plans to launch an iPhone app for reporting potholes? See this March 7th ILB entry.

Posted by Marcia Oddi on Sunday, May 08, 2011
Posted to Indiana Government

Ind. Gov't. - But Sen. Simpson was there first ...

An item today in the Fort Wayne Journal Gazette's Political Notebook column, by Niki Kelly and Benjamin Lanka:

In addition to tweeting, Sen. Jim Banks, R-Columbia City, is a whiz with his smartphone camera.

He has used it to interview other legislators, film protests at the Statehouse and most recently to take a trip to the top of the Capitol building.

He and his trusty sidekicks Sens. Carlin Yoder, R-Middlebury, and Scott Schneider, R-Indianapolis, took a private tour of the inside of the Statehouse rotunda.

After climbing dozens of rickety, spiral stairs, Yoder and Banks admired the view from the Statehouse peak and trained the camera on signatures of various state staffers and officials who have signed the walls over the years.

Then Yoder has the line of the video, telling Banks, “Your third child needs to be conceived up here.”

To view the video, check Banks’ YouTube channel or his Twitter feed.

Here is the YouTube video:

At 6:37 into the video, near the very top of the long climb, the camera finds the following "tag":

Sen. Vi Simpson, Sen. Bill McCarty
Finally at the top - married in the rotunda Nov. 21, '89.

[More] This photo, thanks to the Louisville Courier Journal, gives a better idea of where the legislators were...

Posted by Marcia Oddi on Sunday, May 08, 2011
Posted to Indiana Government

Saturday, May 07, 2011

Ind. Gov't. - Governor Daniels has now received all of this session's bills

The last batch was received Friday, May 6th. Here is the complete, dynamic list, showing the bills the Governor has acted on, and the deadline for action on each bill, 7 days after receipt. If he does not act on a bill within the time allowed by the Constitution, it becomes law without the Governor's signature.

That does not seem likely this session. Neither does a veto, unless some fatal flaw if found in a bill. And even that may not be enough.

Posted by Marcia Oddi on Saturday, May 07, 2011
Posted to Indiana Government

Friday, May 06, 2011

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

Updating this ILB entry from March 24th re Susan Ferrer, ISBA Director of Communications and editor of Res Gestae, who was injured in March in an auto accident downtown, there is good news.

Susan writes this afternoon:

Back in the office!

Part-time since last Thursday ... should be full-time beginning next week!

Hope to be without the walker/wheelchair/crutches by early June.

By the way, April's Res Gestae just hit the streets (Susan regrets the delay). She is hard at work, editing May's magazine.

Good news!

Posted by Marcia Oddi on Friday, May 06, 2011
Posted to Indiana Law

Law - WSJ launches "WikiLeaks"-type site

I saw this WSJ announcement yesterday. A sample:

We want your help.

Documents and databases: They're key to modern journalism. But they're almost always hidden behind locked doors, especially when they detail wrongdoing such as fraud, abuse, pollution, insider trading, and other harms. That's why we need your help.

If you have newsworthy contracts, correspondence, emails, financial records or databases from companies, government agencies or non-profits, you can send them to us using the SafeHouse service.

Alexis Madrigal, a senior editor at The Atlantic, has a story about it here, headed "The Wall Street Journal Launches a WikiLeaks Competitor, SafeHouse: The respected New York-based newspaper has built a site for securely uploading documents to its own internal servers."

[More]
See this article today by Steve Myers: "Should whistleblowers trust Wall Street Journal’s ‘Safehouse’?"

Posted by Marcia Oddi on Friday, May 06, 2011
Posted to General Law Related

Ind. Decisions - "Indiana Supreme Court Weighs Application of Pollution Exclusions"

Yesterday's oral argument in State Automobile Mutual Insurance Co. v. Flexdar, Inc. rates a long story today in Insurance News Net. Some quotes:

The Indiana Supreme Court heard arguments in a case commercial insurers are watching closely because it may affect how pollution exclusions are applied in Indiana, a state known for being tough on insurers seeking to withhold coverage based on those types of exclusions.

The case before the state's high court stems from five primary and umbrella policies Columbus, Ohio-based State Automobile Mutual Insurance Co. issued to Flexdar between 1997 and 2002.

Flexdar, a rubber stamp and printing plate manufacturer, had been registered as a small-quantity hazardous waste generator. In 2003, the company discovered that a photo engraving machine at its plant had been leaking a chlorinated solvent known as trichloroethylene or TCE.

Flexdar notified State Auto of the TCE leak and the company agreed to defend Flexdar against the Indiana Department of Environmental Management, while maintaining the right to withhold coverage.

In 2009, State Auto filed a pleading asking a state judge to determine whether its modified absolute pollution exclusion precluded coverage for IDEM's claim against Flexdar. The trial judge determined the insurer's absolute pollution exclusion was so over broad that it was "ambiguous and unenforceable."

A state appellate court upheld that decision in 2010.

During the May 5 oral argument, State Auto's attorney Barry Cope of Indianapolis.-based Bingham McHale, argued the appellate court's ruling conflicted with prior Indiana Supreme Court precedent and the conclusion that the absolute pollution exclusion was ambiguous "violates contract law."

See the rest of the article.

Posted by Marcia Oddi on Friday, May 06, 2011
Posted to Indiana Decisions

Law - "Oklahoma on verge of joining states enacting significant prison and sentencing reforms"

Sentencing Law Blog in this entry yesterday quoted from a story in The Oklahoman that begins: "A bill intended to relieve prison overcrowding and reduce the strain it places on the state budget is on the way to the governor."

Posted by Marcia Oddi on Friday, May 06, 2011
Posted to General Law Related

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

In U.S. v. Thomas (ND Ind., Miller), a 5-page opinion, Judge Kanne writes:

Jermel Thomas pled guilty on March 22, 2010, to the charge of being a felon in possession of a firearm. In the plea agreement, Thomas waived the right to appeal his sentence and conviction. Thomas has nevertheless appealed his sentence, alleging various errors by the district court. Because the district court did not plainly err in enforcing the plea agreement, we dismiss Thomas’s appeal.

Posted by Marcia Oddi on Friday, May 06, 2011
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (3):

In John Witt, Hydrotech Corp. and Mark Shere v. Jay Petroleum, Inc. and Jack R. James, a 33-page opinion, Judge Bailey writes:

The parties present numerous issues for our review. In conformance with our opinion in this matter, we reframe the issues in this appeal, which are: I. Whether the trial court erred when it issued the TRO, and whether we may review that decision; and II. Whether the trial court erred when it found the Appellants were in contempt of court. * * *

The trial court’s contempt order and the sanctions assessed against the Appellants were punitive in nature, not coercive. Such use of a contempt order is outside the bounds of what is permissible for civil indirect contempt.

Conclusion. The trial court erred when it held the Appellants in contempt of court, both because the TRO was improvidently granted and because the Appellants’ conduct on June 27, 2008, did not constitute a willful violation of the terms of the order. Moreover, even if the Appellants had willfully violated the TRO’s terms, holding the Appellants in contempt nearly eighteen months after the TRO was entered and rendered moot by a subsequent preliminary injunction served no coercive purpose, but was instead a punitive measure impermissible in an indirect civil contempt proceeding. Reversed.

In R.L. Turner Corporation v. Town of Brownsburg, a 23-page opinion, Judge Crone writes extensively on attorney's fees' awards, concluding:
In sum, we hold that the term “costs” may include attorney's fees pursuant to Indiana Code Sections 34-52-1-1(b) and 34-13-3-21. We further hold that the trial court's original judgment providing for “costs to be assessed” against Turner included an award of attorney's fees and expenses to be effectuated at a later date. Assuming arguendo that the original judgment did not include an award of fees, the trial court here had authority to enter a post-judgment award of attorney's fees to the Town. Hereafter, post-judgment requests for attorney's fees by a prevailing party in a frivolous lawsuit may be filed no later than sixty-days after final judgment has been rendered. Finally, we hold that the record supports the trial court's conclusion that Turner's lawsuit against the Town was frivolous, unreasonable and/or groundless. Therefore, the trial court acted within its discretion in awarding $27,410.67 in attorney's fees and expenses to the Town. [Emphasis by ILB]
In Gayle D. Edelen v. State of Indiana , a 16-page opinion, Judge Najam writes:
Gayle D. Edelen appeals her convictions for perjury and official misconduct, each a Class D felony, following a jury trial. Edelen raises two issues for our review: 1. Whether the transcript of the closed juvenile proceeding in which Edelen perjured herself is confidential and therefore inadmissible during her perjury trial; and 2. Whether the State presented sufficient evidence to support her convictions.

We hold that the transcript is not confidential because it involves an adult charged with a crime. We also hold that the State presented sufficient evidence to support Edelen's convictions. As such, we affirm.

NFP civil opinions today (4):

Jamie L. Vida v. State of Indiana (NFP) - This is the correction, it is a NFP civil opinion re the sex offender registry. Judge Crone writes:

Jamie L. Vida appeals from the denial of his verified petition for removal from the Indiana Sex Offender Registry (“the Registry”). Vida asserts, and the State properly concedes, that the Indiana Sex Offender Registration Act (“the Act”) as applied to him violates the ex post facto clause of the Indiana Constitution because he committed the sex offenses at issue before the Act became effective. Therefore, we reverse and remand with instructions to grant Vida's petition.
ILB: See also the Jan. 6, 2010 Supreme Court opinion in Hevner v. State.

A.M. v. Review Board (NFP)

Jerry Kohlhouse v. Black's Excavation (NFP)

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

NFP criminal opinions today (8):

Dwayne Eversley v. State of Indiana (NFP)

Steven Gray v. State of Indiana (NFP)

Tiffany L. Otten v. State of Indiana (NFP)

Willie J. Herman v. State of Indiana (NFP)

Ronald Cox v. State of Indiana (NFP)

Jermarcus L. Grandberry v. State of Indiana (NFP)

Tyler Sturdivant v. State of Indiana (NFP)

Marlon D. Taylor v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 06, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one opinion today

In Joshua Konopasek v. State of Indiana, a 9-page, 5-0 opinion, Justice David writes:

At a bench trial, the defendant made a relevance objection when the State elicited testi-mony on the length of the defendant’s suspended sentence for a prior crime. We hold, under the facts of this case, that the length of the defendant’s suspended sentence was both relevant and admissible. We also reaffirm the limitation on the judicial-temperance presumption, as stated in Fletcher v. State, 264 Ind. 132, 340 N.E.2d 771 (1976). * * *

The Court of Appeals then found that the trial court should not have admitted the evidence in question but concluded the error was harmless. Id. at 766. Specifically, the Court of Appeals held that Konopasek did not overcome the judicial-temperance presumption—the presumption that in a bench trial the judge will disregard inadmissible and irrelevant evidence. Konopasek sought transfer.

We granted transfer (1) to address the admissibility of the evidence in question and (2) to reaffirm Fletcher v. State, 264 Ind. 132, 340 N.E.2d 771 (1976), as it relates to the judicial-temperance presumption. We summarily affirm the decision of the Court of Appeals on the remaining issues. Ind. Appellate Rule 58(A)(2). * * *

We do not need to apply the judicial-temperance presumption to Konopasek‘s case because the evidence in question was relevant and admissible. However, because we believe the Court of Appeals engaged the judicial-temperance presumption too broadly, we write to reaffirm the limits on the presumption as explained in Fletcher. We also write to clarify the interplay be-tween the presumption and harmless-error analysis. * * *

Conclusion. We reaffirm the Fletcher limitation on the judicial-temperance presumption. We summa-rily affirm the decision of the Court of Appeals finding sufficient evidence to support Konopa-sek‘s conviction and to disprove his self-defense claim. App. R. 58(A)(2). We conclude that the trial court properly admitted the evidence in question and affirm Konopasek‘s conviction and sentence.

Posted by Marcia Oddi on Friday, May 06, 2011
Posted to Ind. Sup.Ct. Decisions

Law - "US News: Law Schools Should Quit Blaming Us for Their Policies"

Debra Cassens Weiss of the ABA Journal blog has this post.

See also the ILB's May 1st entry.

Posted by Marcia Oddi on Friday, May 06, 2011
Posted to General Law Related

Ind. Decisions - More on "Court ruling revives neighbors' suit against VIM"

Updating this brief May 5th ILB entry, here is the expanded story by Tim Vandenack of the Elkhart Truth, re the 7th Circuit decision May 3rd in Adkins v. VIM Recycling.

Posted by Marcia Oddi on Friday, May 06, 2011
Posted to Ind. (7th Cir.) Decisions

Law - "It is a civil violation for an immigrant to be in the United States illegally; it is not a crime."

That is a quote from this long story today reported by Julia Preston of the NY Times. The headline: "States Resisting Program Central to Obama’s Immigration Strategy." A few more quotes:

A program that is central to President Obama’s strategy to toughen enforcement of immigration laws is facing growing resistance from state governments and police officials across the country. * * *

Under the program, the fingerprints of every person booked by the police are checked against Department of Homeland Security databases for immigration violations. That is in addition to routine checks against the F.B.I.’s criminal databases.

State officials and federal lawmakers have questioned the program, saying that Homeland Security officials conveyed misleading information about whether participation was mandatory or whether states could opt out. Some state officials, led by Governor Quinn, said the program was not accomplishing its stated goal of deporting convicted criminals, but had swept up many immigrants who were here illegally but had not been convicted of any crime.

Posted by Marcia Oddi on Friday, May 06, 2011
Posted to General Law Related

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

Updating this April 26, 2011 entry, Michael Puente has coverage at WBEZ.com. Some quotes:

During a meeting at City Hall in Michigan City Thursday night, [Bob Daum, Chief of Resource Manager for at Indiana Dunes National Lakeshore] told park goers and others that when the dunes grass dies, nothing holds sand in place, and the dunes erode. The effects of drifting sand are pronounced enough that Mount Baldy is moving about 15 feet per year.

Daum annnounced a plan that the National Park Service hopes will let dune grass spring back. The project includes putting up snow fences in certain sections of the dune, near its base and at its peak, so the grass can grow.

“Some temporary fencing to let that dune grass basically resprout,” Daum said. “And once it’s resprouted it will slow down that sand that’s blowing through it and the dune will grow again and actually end up being more beautiful.”

Some of that fencing will start to go up starting on Tuesday. The National Lakeshore is looking for volunteers to help out with putting it up.

Posted by Marcia Oddi on Friday, May 06, 2011
Posted to Environment

Courts - "Applying the Rules of Evidence Related to Authentication to Online Sources"

UCLA law prof. Eugene Volokh of the Volokh Conspirary has an interesting entry this morning that begins:

Evidence law has special rules that require someone who wants to introduce a document to first introduce “foundation” evidence that shows the document was indeed written by the person who supposedly wrote it; this is called “authentication.” Griffin v. State, decided by Maryland’s highest court on April 28, has an interesting discussion of how those rules play out with regard to online sources. The case itself involved the authentication of a MySpace Web page, but the discussion can apply to many other online sources as well.

Posted by Marcia Oddi on Friday, May 06, 2011
Posted to Courts in general

Thursday, May 05, 2011

Courts - Does it seem like it is always the nuns?

"Nuns' ballots rejected in state Supreme Court recount" is the headline to a May 4th story in the Milwaukee Journal Sentinel, reported by Bill Glauber. It begins:

The recount for the state Supreme Court race has come to this: Votes from nuns have been thrown out.

The unique twist in the race between Justice David Prosser and challenger JoAnne Kloppenburg came during the recount in Sauk County. There, ballots of Cistercian nuns from the Valley of Our Lady Monastery in Prairie du Sac were rejected.

The nuns live a contemplative, monastic life and support themselves by baking and distributing altar breads, according to their website.

On Friday, during the recount, it was noted that witness signatures were missing from 18 absentee ballots from the Town of Sumpter, where votes from the monastery are counted.

"Eighteen applications did not have a witness signature," said Alene Bolin, assistant corporation counsel for Sauk County. "I don't think all 18 were from the monastery. I think it has turned into, there were 18 nuns but I do remember one of the ballots was not from the convent."

Now recall this story by Jon Murray of the Indianapolis Star on the Indiana Supreme Court voter ID decision, headed "Indiana justices uphold voter ID law." Some quotes:
It argued the voter ID law had created a new qualification for voting and was being applied unequally to voters, violating the Equal Privileges and Immunities provision.

"In our view, however, the Voter ID Law's requirement that an in-person voter present a government-issued photo identification card containing an expiration date is merely regulatory in nature," the state Supreme Court's opinion says.

But the court ruled only on the general constitutional challenge, holding open the door for the possibility of a more specific challenge to the law by otherwise qualified voters actually kept from voting by the ID requirement. Opponents have cited some circumstances, including a dozen nuns in St. Joseph County in Northern Indiana who weren't allowed to cast ballots in the 2008 primary because they lacked valid IDs.

Posted by Marcia Oddi on Thursday, May 05, 2011
Posted to Courts in general

Ind. Gov't. - "Indiana Secretary of State Charlie White Releases Rokita Report"

Here are links to the long-awaited "Rokita Report."

[More] Mary Beth Schneider tweets:

From SOS release: Rokita Report did no interviews and "was conducted with no investigation beyond looking at public documents."
Jim Shella of WISH TV writes in his blog:
The Rokita Report into Charlie White’s voter registration, to be made public later this afternoon, will show that the former Secretary of State came to no solid conclusion as to whether White broke the law.

The inconclusive result is due to the fact that White wasn’t interviewed and a finding of voter fraud requires that the voter knowingly lied about his address. That means that White will need to be interviewed by the Recount Commission, something he’s trying to avoid.

Posted by Marcia Oddi on Thursday, May 05, 2011
Posted to Indiana Government

Ind. Gov't. - "Starke County Commissioners Approve Ordinance Restricting Weapons at Courthouse"

"Ben" reports in a story at K99.3 WKVI FM that begins:

The courthouse is now a weapon-free zone, thanks to the ordinance passed by the Starke County Commissioners at their recent meeting. A public hearing was held regarding the proposed ordinance that would restrict firearms and other weapons at courthouse facilities as well as other public meetings. There was no public comment, and the Commissioners voted to approve the ordinance.

“We’re just trying to protect our court, protect our judge, protect the people who work at the courthouse, and also us,” said Commissioner Dan Bridegroom.

Posted by Marcia Oddi on Thursday, May 05, 2011
Posted to Indiana Government

Ind. Gov't, - Charlie White report to be released

Carrie Ritchie of the Indianapolis Star has tweeted within the past few minutes:

Todd Rokita's report on Charlie White's alleged voter fraud will be released on the secretary of state's website at 3 p.m. today

Also, inspector general has determined that Charlie White did NOT improperly access a report re: his alleged voter fraud prepared by Rokita

Earlier, from Niki Kelly of the FWJG:
SOS Charlie White will release Rokita report into alleged voter fraud allegations today after Inspector General cleared the way.

Posted by Marcia Oddi on Thursday, May 05, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Patrick M. McGrath v. Linda S. McGrath, an 11-page opinion, Judge Brown writes:

Patrick McGrath (“Husband”) appeals the trial court's valuation of certain real property in the decree of dissolution. Husband raises one issue, which we restate as whether the court abused its discretion in determining the value of certain real estate in the marital estate. We reverse and remand. * * *

Based upon the record, and given that the court indicated that it intended to divide the marital estate equally and did not find that the presumption of equal division had been rebutted, we conclude that the court abused its discretion in failing to consider the substantial change in value of the Shawmut Property as expressed in the 2009 appraisal report to calculate the total marital assets and distribution of the marital property. Accordingly, we remand with instructions to enter a modified decree of dissolution or an amendment to the decree reflecting an equal division of the parties‟ marital estate considering the change in value of the Shawmut Property.

In Lenn Ivy v. State of Indiana , a 7-page opinion with a pro se appellant, Judge Mathias writes:
Lenn Ivy (“Ivy”), who is serving a sixteen-year sentence in the Department of Correction, filed a motion to modify his sentence in Marion Superior Court, seeking an alternative placement in a Community Corrections work release program. Ivy’s motion was denied and he appeals arguing that the court’s master commissioner did not have the authority to rule on his motion. In response, the State asserts that under the terms of his plea agreement, Ivy is precluded from seeking a modification of his sentence. Concluding that Ivy may not seek a modification of his sentence under the terms of his plea agreement, we affirm the denial of his motion to modify his sentence.
NFP civil opinions today (1):

Leighann Hall, et al. v. Denver Hall (NFP)

NFP criminal opinions today (3):

Michael Dewayne Lloyd v. State of Indiana (NFP)

Marc A. Bernero v. State of Indiana (NFP)

Willie Dumes v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 05, 2011
Posted to Ind. App.Ct. Decisions

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

In U.S. v. Norris (SD Ind., Barker), a 19-page opinion, Judge Ripple writes:

John L. Norris was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e). He initially pleaded not guilty to the charge, but, after his motion to suppress evidence was denied, he entered a conditional plea of guilty. Mr. Norris now appeals the district court’s ruling on his motion to suppress. Because the officers were acting pursuant to a valid warrant and in a reasonable manner, we affirm the judgment of the district court.

Posted by Marcia Oddi on Thursday, May 05, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Court ruling revives neighbors' suit against VIM"

The 7th Circuit decision May 3rd in Adkins v. VIM Recycling (ILB summary here) was the subject of a brief story yesterday by Tim Vandenack of the Elkhart Truth, with the promise of more in today's paper. The Truth has a special page devoted to coverage of VIM recycling issues.

Posted by Marcia Oddi on Thursday, May 05, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Recount panel sets deadline for White decision"

Here is a very long list of earlier ILB "Charlie White" entries.

Yesterday the State Recount Commission met. Carrie Richie of the IndyStar and Dan Carden of the NWI Times both have stories. From the Star:

The commission met this morning to set a schedule for resolving Democrats' challenge to White's candidacy. The Democrats allege that White was registered to vote at the wrong address when he declared his candidacy, so he wasn't eligible to run.

The commission initially dismissed the complaint last December, but Marion Circuit Court Judge Louis Rosenberg ruled April 7 that the complaint is valid. In an order issued Monday, he told the commission to resolve the complaint by July 6.

A hearing on the facts of the case has been scheduled for June 21, and the commission will issue its findings by June 30.

At its meeting this morning, the commission also told White's office to turn over to the attorney general's office a report former Secretary of State Todd Rokita compiled about White's voter registration. The Democrats have wanted to see the report for months, and could finally get their hands on it after the commission reviews it and determines whether it's relevant to their complaint.

From the Times:
INDIANAPOLIS | The Indiana Recount Commission reversed its prior dismissal of an eligibility challenge to Secretary of State Charlie White on Wednesday and ordered a formal election contest.

The three-member panel, which will hear testimony in the case on June 21, is slated to rule on the challenge to White's eligibility on June 30. * * *

The commission's decision to reverse its December 2010 dismissal of the Democrats' contest petition was not unexpected after a Marion County judge last month ordered the commission to hear the case.

Commission Chairman Tom Wheeler said the panel wants to consider the eligibility challenge "as expeditiously as possible."

"We're not interested in making a partisan decision," Wheeler said. "We're interested in making the correct decision based upon the facts and upon the law."

If the two Republicans and one Democrat on the commission rule White was ineligible to run, the candidate with the second-highest number of votes -- Democrat Vop Osili -- would become secretary of state.

In future elections, following a change made by the General Assembly in April, the governor would appoint a replacement if an officeholder was found ineligible.

Posted by Marcia Oddi on Thursday, May 05, 2011
Posted to Indiana Government

Ind. Gov't. - "The same high-tech tool that tracked and matched terrorist Osama bin Laden is fighting crime right here in Indiana" at the BMV.

The WTHR 13 story by Jennie Runevitch is available here. The story begins:

The same high-tech tool that tracked and matched terrorist Osama bin Laden is fighting crime right here in Indiana.

It's facial recognition technology and it is hard at work protecting people every day at the BMV. In fact, every time you come to get your driver's license, facial recognition technology is hard at work. When they take your picture and you stand in front of the blue screen, they use the software to detect fraud.

The software needs an unobstructed view of your face, which is why you can't smile, wear a hat or even glasses to be photographed for your license. The BMV takes your picture and runs it against a database of 6 million photos to make sure there isn't a match; that is, your photo on someone else's license illegally.

Be sure to watch the video.

Posted by Marcia Oddi on Thursday, May 05, 2011
Posted to Indiana Government

Ind. Courts - "Beech Grove City Court Judge admonished by Judicial Qualifications Commission"

ILB readers may remember this Feb. 13, 2011 entry, headed "Wrap-up of: Another 'traffic court judges behaving badly' story," about Judge Charles Hunter, 87, of the Beech Grove Traffic Court. It quoted a lengthy WISH TV story from Oct. 29, 2010 that touched on, as the ILB wrote early this year, "several matters at issue in this General Assembly, including whether there should be a retirement age for judges, and whether city courts should be abolished."

The Feb. 13, 2011 entry ended:

So what is the point of retelling this over three months later? Marion County Democratic and Republican parties just held their slating conventions Saturday, Feb. 12. The ILB has learned that on Saturday the Republicans slated Andrew Wells (a 2010 graduate) over the incumbent: 87 year old Charles Hunter. (And yes, both are listed on the Roll of Attorneys - one admitted in 1950, the other in 2010.)
Today's news. The Indiana Supreme Court released this announcement early this morning:
The Indiana Commission on Judicial Qualifications has issued a Public Admonition against Beech Grove (Marion County) City Court Judge Charles W. Hunter. The admonition is the result of injudicious conduct in connection with a case in Judge Hunter’s court and the public statements he made when questioned about the case.

Judge Hunter admits to violating Rule 1.2 of the Code of Judicial Conduct. The violation stems from an October 2010 incident. A television reporter was investigating a citizen complaint. Charity Bryan, who is confined to a wheelchair, complained to a reporter about a ticket her husband received for parking in a handicapped spot without a placard. The ticket was filed in Beech Grove City Court. While investigating the ticket, the reporter found Judge Hunter waiting to get into a vehicle that was parked in a handicapped spot without a placard. Judge Hunter made inappropriate comments to the reporter when she questioned him about the situation.

The reporter asked Judge Hunter, “Are you aware that you don’t have a disabled placard and you’re parked in a handicapped space?” Judge Hunter chuckled and answered, “Yes.” The reporter continued to press Judge Hunter about the situation. During the exchange, Judge Hunter’s son retrieved the handicapped placard from the visor and placed it on the rearview mirror. When the reporter suggested that the Bryans had been faced with a similar situation, Judge Hunter stated, “I didn’t get a ticket, did I?” The reporter then asked, “So, it’s just their bad luck for having gotten a ticket?” Judge Hunter responded, “I guess so, yeah.”

Judge Hunter acknowledges his comment violated Rule 1.2 of the Code of Judicial Conduct. Rule 1.2 requires judges to act in a manner that promotes the public’s confidence in the judiciary and to avoid the appearance of impropriety.

A Public Admonition is a resolution of a disciplinary investigation in which a judicial officer admits specific actions constitute ethical misconduct and accepts an official censure from the Commission. Supreme Court rules give the Indiana Commission on Judicial Qualifications the discretion to issue an Admonition instead of filing formal charges. The Commission can issue an Admonition when it determines that a Public Admonition sufficiently addresses the misconduct and the judge consents to that resolution.

Here is the actual text of the Public Admonition, dated May 5, 2011.

Here is the list
of other "public admonitions." A total of twenty have been issued in the past twenty years.

[More at 9:16 AM]
WISH-TV is now reporting the Judicial Qualifications Commission here. A side-bar links to their earlier stories and videos.

Posted by Marcia Oddi on Thursday, May 05, 2011
Posted to Indiana Courts

Wednesday, May 04, 2011

Ind. Gov't. - "Indiana extends do-not-call list to some cell numbers"

Lesley Stedman Weidenbener of the Louisville Courier Journal has a story this evening that begins:

Hoosiers who’ve done away with a landline will be able to put their cell phone numbers on the state’s do-not-call registry under legislation the Indiana General Assembly approved this session.

“Because many Hoosiers now use cell phones only and do not have land lines at home, we wanted to statutorily extend the protections of the Do Not Call list for cell phone users so they also can be shielded from intrusive solicitors,” Indiana Attorney General Greg Zoeller said in a statement Wednesday.

House Bill 1273, co-sponsored by Sen. Ron Grooms, R-Jeffersonville, clarifies the state’s do-not-call law to make clear that residents can register their cell phone numbers, prepaid wireless calling and web-based phone services — as long as the number is used as their residential lines.

Telemarketers who call a cell phone number registered on the Do Not Call list will face the same penalties as those who call a registered land line.

The story also discusses a number of other successful bills.

Take a close look at HB 1273, it is sort of a mini-Christmas tree bill.

Posted by Marcia Oddi on Wednesday, May 04, 2011
Posted to Indiana Government

Ind. Courts - "Comment Period Open for Proposed Marion County Probate Rules"

IndyBar news has the details. Comments will be accepted until June 1, 2011.

Posted by Marcia Oddi on Wednesday, May 04, 2011
Posted to Indiana Courts

Sports Law - "Department of Justice asks NCAA why it does not have football playoff"

Christine Varney, Assistant U.S. Attorney General heading the Antitrust Division of the DOJ, sent a letter dated May 3, 2010 to Mark A. Emmert, head of the NCAA. Erick Smith reports in a USA Today story posted at 4:36 PM:

The Department of Justice has sent a letter to the NCAA asking why it does not hold a playoff to determine a college football national champion.

The letter questions whether the Bowl Championship Series system violates antitrust rules because it excludes some conferences from playing in major bowl games.

The ILB has obtained a copy of the letter and has posted it here.

Meanwhile, in an entry posted at SB Nation at 5:18 PM today, Jason Kirk writes:

The NCAA has responded snippily to reports of a letter from the Justice Department on the subject of the Bowl Championship Series and whether the governing body has looked into a playoff for FBS football.
Well, snippily to SB Nation, not to the NCAA:
“When we actually receive the letter from the Department of Justice we will respond to its questions directly. It should be noted that President Emmert consistently has said, including in the New York Times article, that the NCAA is willing to help create a playoff format for Football Bowl Subdivision football if the FBS membership makes that decision.”

Posted by Marcia Oddi on Wednesday, May 04, 2011
Posted to General Law Related

Ind. Decisions - "When the appellee does not file a brief, we apply a less stringent standard of review and may reverse the trial court when the appellant establishes prima facie error."

The ILB has received some reader comment about the May 2nd Court of Appeals opinion in the case of State v. C.D. From the opinion by Sr. Judge Barteau:

Petitioner-Appellant State of Indiana appeals the trial court’s grant of Respondent-Appellee C.D.’s motion to suppress evidence. We reverse and remand. * * *

We note that C.D. did not file an Appellee’s Brief. When the appellee does not file a brief, we apply a less stringent standard of review and may reverse the trial court when the appellant establishes prima facie error. State v. Combs, 921 N.E.2d 846, 850 (Ind. Ct. App. 2010). “Prima facie” is defined as “at first sight, on first appearance, or on the face of it.” Id. This rule is not intended to benefit the appellant, but rather to relieve this Court of the burden of developing arguments on behalf of the appellee. State v. Moriarty, 832 N.E.2d 555, 558 (Ind. Ct. App. 2005). The burden of demonstrating trial court error remains with the appellant. Combs, 921 N.E.2d at 850.

C.D.’s motion to suppress raised two claims: (1) Vanwanzeele and Richhart erroneously interrogated C.D. without giving him an opportunity to consult with his parents; and (2) Vanwanzeele erroneously searched C.D.’s backpack without a warrant. The State challenges each point on appeal, and we address each in turn. * * *

[W]e conclude that C.D. was not undergoing custodial interrogation when he answered Richhart’s questions and made an incriminating admission, and the Miranda warnings and safeguards in Indiana Code section 31-32-5-1 (1997) are inapplicable here. Thus, C.D. was not deprived of his right to meaningful consultation with his parents when Richhart examined him. * * *

In this case, C.D. appeared impaired to Vanwanzeele, and Richhart told Vanwanzeele that he thought that C.D. was under the influence of marijuana and had smoked it that day. Based on this information, a search of C.D.’s backpack for controlled substances was justified, and the search was reasonably related in scope to the circumstances. Having been informed that C.D. was, in Richhart’s opinion, presently under the influence of marijuana, it was reasonable for Vanwanzeele to check C.D.’s backpack for more marijuana or for paraphernalia. See T.S., 863 N.E.2d at 377 (determining that an officer’s removal of a student from class and questioning the student as to whether he had drugs did not violate the Fourth Amendment because the officer had received an anonymous tip that the student had drugs on his person that day).

We conclude that the State has demonstrated prima facie error, and the trial court’s suppression of all evidence obtained prior to C.D.’s consultation with his parents is contrary to law.

For the reasons stated above, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

From a reader:
There's a published opinion May 2nd in State v. C.D., a juvenile case.

The trial court suppressed evidence because of a lack of meaningful opportunity to consult, and the state appealed.

The Court reversed, holding that being sent to the principal's office, examined by a 'drug identification officer' and interrogated was not a "custodial interrogation."

There's no attorney listed for the juvenile, and no appellee's brief was filed. This seems like the kind of case where it would have been really beneficial to have the benefit of an appellee's brief.

In answer to the ILB's question, IU Law Prof Joel Schumm responded that "This happens a fair amount when the State appeals." He continued:
There is a difference between an appeal of a reserved question of law following an acquittal, with no future consequences for the defendant, and a case like C.D., which involves suppressed evidence that will now be admissible at a trial that otherwise would not have been possible.

It is especially important that defendants have counsel represent their interests in these appeals. Under Appellate Rule 17(A), parties in the trial court are parties on appeal. The juvenile's trial counsel should have received notice of the appeal and either represented the juvenile on appeal or made sure someone did.

Posted by Marcia Oddi on Wednesday, May 04, 2011
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (2):

In Robert Eppl v. Christine Di Giacomo, a 16-page opinion in the case of a dispute over the return of a rental deposit, Judge Darden writes:

[Re surrender and acceptance] At issue is whether the small claims court properly interpreted and applied the Indiana's Security Deposits Statute (“the Statute”), Indiana Code chapter 32-31-3 et seq., determining when the parties' lease terminated. * * * The Statute governs landlords' duties to return security deposits to tenants. * * *

Based upon the foregoing, we conclude that Eppl's itemization of damages letter was timely because it was sent within forty-five days of the termination of the lease agreement. Thus, we find that “the evidence is without conflict and leads to but one conclusion which is opposite from that reached by the [small claims court].” Mayflower, 714 N.E.2d at 797. Accordingly, we conclude that the small claims court erred in concluding that Eppl cannot claim damages because of “the itemization being untimely,” (see Order 2); and its judgment that DiGiacomo was entitled to the return of her security deposit is contrary to law. We therefore reverse and remand to the trial court with instructions to vacate its judgment, including attorney's fees, in favor of DiGiacomo and to enter judgment in favor of Eppl. * * *

[Re itemization of damages] [W]e affirm the small claims court's determination that Eppl is not entitled to prevail in whole on his counterclaim for damages; notably, however, because DiGiacomo testified that she was responsible for some of the nail hole damage as well as the broken light fixture, we remand to the trial court with instructions to calculate the undisputed nail hole damages and expenses for repair of the broken light fixture to be deducted from the security deposit. Each party to bear his or her own attorney's fees pursuant to the American Rule.

In American Family Home Insurance Co. v. Rick Bonta , a 9-page opinion, Judge Riley writes:
American presents one issue on appeal, which we restate as follows: Whether the trial court erred when it failed to make specific findings in setting aside the jury’s verdict and granting a new trial because the court concluded that the verdict was against the weight of the evidence. * * *

[Cross-appeal] Because Bonta presents us with a threshold procedural issue, we must first address the propriety of Bonta’s cross-appeal, in which he challenges American’s standing to appeal the trial court’s Order. * * *

Because Morales was an uninsured motorist and Bonta was covered under American’s insurance policy, American was bound by the jury verdict and was liable to pay the judgment rendered at trial. As such, American had a right to step into Morales’ shoes and contest the trial court’s subsequent decision of granting Bonta a new trial. Therefore, American has standing to bring this appeal.

[Appeal] Because we are faced here with a complete absence of special findings, we reverse the trial court’s Order granting a new trial and remand to the trial court, directing reinstatement of the jury’s verdict.

CONCLUSION. Based on the foregoing, we conclude that American has standing to appeal the trial court’s Order. In addition, we hold that the trial court erred when it failed to make specific findings in setting aside the jury’s verdict because it was against the weight of the evidence. Reversed and remanded. We order the trial court to reinstate the jury’s verdict.

NFP civil opinions today (2):

A.B. v. Review Board (NFP)

Peggy Bracken v. Marine Corp. League Joseph Bray Det. Inc. (NFP)

NFP criminal opinions today (6):

Jack M. Estes, II v. State of Indiana (NFP)

Thomas James Newsom v. State of Indiana (NFP)

Thomas D. Eckel v. State of Indiana (NFP)

Michael Bracken v. State of Indiana (NFP)

Cassandra Gardner v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Wednesday, May 04, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "The long-standing assumption has been that the federal government and the states would work together to provide health care for poor patients"

That is a quote from this long story today in the LA Times, reported by David G. Savage, and headed "Indiana sets the stage for clash with Obama administration over abortion."

Posted by Marcia Oddi on Wednesday, May 04, 2011
Posted to Indiana Government

Tuesday, May 03, 2011

Ind. Decisions - Two Indiana opinions today from 7th Circuit

In U.S. v. Leach (ND Ind., Miller), an 8-page opinion, Judge Wood writes:

Donald Leach moved from Indiana to South Carolina in late 2008 without promptly notifying government officials in either state. This would be unremarkable if Leach had not been convicted of a sex offense in 1990, but he had. That conviction triggered a requirement pursuant to the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a), to register with Indiana and South Carolina authorities when he moved across state lines. Unbeknownst to Leach, an anonymous caller reported to Indiana officials that Leach had moved out of state shortly after his departure. In February 2009, Leach tardily passed the same information along to the Indiana child support enforcement office. At no time did he register with the authorities in South Carolina. The following week, a deputy United States Marshal and a local officer arrested Leach, who was then returned to Indiana, where he was indicted for knowingly failing to register as a sex offender after traveling in interstate commerce in violation of SORNA. Leach moved to dismiss his indictment, arguing that SORNA violates the Ex Post Facto Clause of the United States and Indiana Constitutions. The district court denied Leach’s motion to dismiss, and Leach entered a conditional guilty plea while preserving his right to appeal that sole issue. We find no ex post facto violation and affirm the judgment of the district court. * * *

Leach spends considerable effort arguing that SORNA violates the Ex Post Facto Clause of the Indiana Constitution. In support, he relies on the Indiana Supreme Court’s recent opinion invalidating portions of the Indiana sex offender registration statute on state constitutional grounds. See Wallace v. State, 905 N.E.2d 371 (Ind. 2009). But the question before us is not whether Indiana has adopted a compliant registration system (an issue relating only to its entitlement to certain federal funds, see Carr, 130 S. Ct. at 2232), nor is it whether SORNA—a federal statute—“complies” with the law of any particular state. The Supremacy Clause establishes that state constitutional provisions cannot override federal statutes. See U.S. CONST. art. VI, cl. 2; see also United States v. Baer, 235 F.3d 561, 562 (10th Cir. 2000). And even if Indiana’s system were flawed (a point on which we express no opinion), Leach was also required to register in South Carolina and did not. We are thus left only with Leach’s argument that SORNA violates the Ex Post Facto Clause of the United States Constitution. We review a challenge to the constitutional validity of a federal statute de novo. United States v. Sidwell, 440 F.3d 865, 870 (7th Cir. 2006). * * *

Section 2250(a) imposes up to ten years’ imprisonment for failure to comply with SORNA’s registration requirements. This is certainly a penal statute, and so the only question is whether it is retrospective. A sex offender violates the statute when, at any time after SORNA was enacted, he travels in interstate commerce and then fails to register. See Carr, 130 S. Ct. at 2232-33. Because the law targets only the conduct undertaken by convicted sex offenders after its enactment, it does not violate the Ex Post Facto Clause. * * *

To violate the Ex Post Facto Clause, moreover, a law must be both retrospective and penal. But whether a comprehensive registration regime targeting only sex offenders is penal, as Leach concedes, is not an open question. In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court held that an Alaska sex offender registration and notification statute posed no ex post facto violation because it was a civil, rather than penal, statute. Citing Smith, we observed in Dixon v. United States, a case that did not squarely present the issue, that a defendant could not challenge SORNA’s registration requirements on ex post facto grounds because the statute is, in fact, regulatory. 551 F.3d 578 (7th Cir. 2008), rev’d on other grounds sub nom. Carr v. United States, 130 S. Ct. 2229 (2010). Leach has not identified any aspects of SORNA’s registration provisions that distinguish this case from Smith. This is unsurprising, since we too are unable to find any meaningful distinctions. Therefore, we join our sister circuits in concluding that SORNA is not an ex post facto law. [citations omitted]

ILB: See this long list of earlier ILB entries re SORNA.

In Adkins v. VIM Recycling (ND Ind., Simon), a 61-page, 2-1 opinion, Judge Hamilton writes:

This appeal presents questions regarding the citizen-suit provisions in the federal Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., including when a narrower government enforcement lawsuit may preclude a broader citizen suit, and how the citizen-suit provisions interact with the federalism doctrines of Colorado River and Burford abstention. The district court in this case relied on statutory provisions and the abstention doctrines to dismiss the plaintiffs’ citizen suit under RCRA. We reverse and remand to allow the plaintiffs to pursue their citizen suit.

We consider here the relationships among three lawsuits: two state court actions filed by a state environmental agency and the federal citizen suit. * * *

V. Conclusion The plaintiffs’ RCRA citizen suit should go forward, except as to the violation claims concerning “C” grade waste that were part of the first IDEM lawsuit against defendant VIM. In all other respects, the plaintiffs met the statutory requirements of RCRA. Because the plaintiffs satisfied the statutory requirements for bringing their citizen suit, abstention doctrines should not have been used to block the plaintiffs from pursuing the avenues that Congress gave them in RCRA. The district court’s judgment dismissing the case is REVERSED and the action is REMANDED for further proceedings.

[p. 51] RIPPLE, Circuit Judge, concurring in part and dissenting in part. I join the majority opinion on several issues, but I cannot agree with the majority’s discussion and conclusion regarding abstention under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). I therefore must respectfully dissent. * * *

What does seem apparent in this case is that simultaneous litigation of the actions and simultaneous supervision of the remediation process by state and federal courts will be a recipe for delay, confusion and wasted judicial resources. These concerns were the precise motivations in Colorado River, and it is not clear how any of the plaintiffs’ interests are impaired if the federal case is stayed. Accordingly, I must respectfully dissent from removing from the district court’s discretion the decision to stay the plaintiffs’ case upon invoking abstention under the Colorado River doctrine.

Posted by Marcia Oddi on Tuesday, May 03, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on: What handgun bills passed this session of the General Assembly?

Updating this ILB entry from yesterday, the Fort Wayne Journal Gazette has this editorial today, headed "Hypocritical gun law." Some quotes:

The majority of Indiana’s lawmakers care a lot more about gun lobbyists – and themselves – than they do about the concerns of mayors, librarians and many Hoosiers.

How else to explain their vote to prohibit local government from banning guns in many government properties, including libraries and parks? Or to explain their decision to set up new and costly roadblocks to banning guns in city halls and city council chambers?

Lawmakers heard plenty of concerns from local officials worried about the prospect of permitting gun-toting citizens who may be upset with local decisions into council meetings and mayor’s offices. What they didn’t hear was a groundswell of public demand for Hoosiers to be able to carry their TEC 9 semi-automatic weapons with a 32-round magazine or their .44 Magnum revolvers into libraries, zoning board meetings and parks.

No, the only voices that counted were those of the National Rifle Association and gun lobbyists who are paid to try to influence state legislatures to pass as many pro-gun laws as possible, whether or not they serve the public. * * *

But state representatives and senators did not show similar concern about Hoosiers’ Second Amendment rights when it comes to protecting themselves. They did not give licensed Hoosiers the same ability to carry weapons into the Statehouse, where the lawmakers and governor work. Legislators can carry weapons into the building but not other citizens.

The ban presumably applies to government-owned buildings such as Parkview Field or Memorial Coliseum. However, teams and promoters leasing the buildings can impose firearms bans – giving tenants more rights than owners, and giving businesses more power to regulate firearms than elected officials.

“We’re going back to the wild, wild West,” said Sen. Greg Taylor, D-Indianapolis.

Posted by Marcia Oddi on Tuesday, May 03, 2011
Posted to Indiana Law

Ind. Law - More on "Sex offenders casting ballots in region schools"

Following up on her May 1st story, Marisa Kwiatkowski of the NWI Times has another story today. Some quotes:

Multiple criminal justice officials and parents told The Times they would like the state Legislature to pass a law barring sex offenders from entering schools while they are listed on the registry. Some sex offenders must register for 10 years while others have lifetime registration requirements.

Critics of such restrictions cautioned against barring registered sex offenders from schools.

David Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, said the majority of sex offenders target people in their existing social networks -- not random children who are under supervision in schools. He also said 90 percent of new arrests for sex crimes against children involve people with no prior sex offense history.

Robert Hundt, a private therapist who has worked with sex offenders for about 15 years, said preventing registered sex offenders from entering schools could affect parents who are on the registry and would perpetuate the stigma against them.

"We want to make sure not to shoot ourselves in the foot by possibly making it so hard for offenders to live that we're actually increasing their risk," he said.

Posted by Marcia Oddi on Tuesday, May 03, 2011
Posted to Indiana Law

Law - LexisNexis messes up 2010 Connecticut General Statutes

Law Librarian Blog has the story today. A law librarian from the Connecticut Legislative Library gave the alert, writing "just a good lesson to not take any source for granted."

And recall this ILB post from Jan. 6, 2011, which reported: "West Publishing inadvertently deleted Appellate Rule 45(B)(2), (B)(3), and (B)(4) from the 2011 Appellate Rule Books and from the version on Westlaw."

Posted by Marcia Oddi on Tuesday, May 03, 2011
Posted to General Law Related

Law - Nolo, legal publisher for those seeking self-help, sold to advertising-driven internet company

Richard Granat of Lawyering Blog has a long entry on this news, dated April 30th, expressing concern over whether Nolo (take a look at the Nolo site) can "maintain the quality of it self help legal content" or whether "the quality of Nolo's self help legal content deteriorates under the management of an advertising company that measures results in impressions, clicks, and unique visitors."

Posted by Marcia Oddi on Tuesday, May 03, 2011
Posted to General Law Related

Courts - "What may be expected of lawyers in terms of rudimentary competence has lately been high on the SCOTUS' agenda"

That is the topic of Adam Liptak's "Sidebar" column today in the NY Times.

Posted by Marcia Oddi on Tuesday, May 03, 2011
Posted to Courts in general

Monday, May 02, 2011

Ind. Courts - "Courts merger might shed politics, trim costs"

Bill Dolan reports in the NWI Times, in a story that begins:

CROWN POINT | Lake County officials hope legislation designed to take four Lake Superior Court judges out of politics will save taxpayers tens of thousands of dollars.

County Attorney John Dull said county officials are looking into a proposal to have the four judges share staff among themselves and with another dozen nonpartisan judges to reduce the number of part-time lawyers or other employees now on the county payroll. * * *

Superior Court, County Division Judge Julie Cantrell sold legislators on moving her court and three other political courts into the county's nonpartisan judicial system on the grounds it would create greater efficiency through shared staff.

Legislators responded and Gov. Mitch Daniels is expected to sign House Bill 1266 into law, which would end County Division judges Cantrell, Nicholas Schiralli, Sheila Moss and Jesse Villalpando's dependence on political parties to stay in office.

Instead, voters would reject or retain them for six more years. The judges' political affiliation isn't announced on the ballot and they cannot be challenged by candidates from either political party.

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Indiana Courts

Ind. Courts - Changes this year made to automated record keeping fee used by the Court to fund JTAC project

Again this year a request was before the General Assembly to raise the automated recordkeeping fee, collected by the county clerks for each case filed, but sent on in its entirety to the state, mostly to fund the JTAC project.

Annual Automated Record Keeping Fee Through the 21st Century
2001 $2 annually
2002 $5 annually until 7-1-03, then $7 annually until 7-1-09, then $4 annually thereafter.
2004 $7 annually until 7-1-09, then $4 annually thereafter.
2007 $7 annually until 7-1-11, then $4 annually thereafter.
2009 $7 annually until 7-1-09, then $10 until 7-1-13, then $7 annually thereafter. [did not pass]
2011 $7 annually until 7-1-11, then $10 until 7-1-15, then $7 annually thereafter. [proposed - SB 301]

However, SB 301 did not pass; the subject now is instead covered in HEA 1001, the budget bill. See SECTION 258, on page 269, which now provides:

SECTION 258. IC 33-37-5-21, AS AMENDED BY P.L.182-2009(ss), SECTION 394, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 21. (a) This section applies to all civil, criminal, infraction, and ordinance violation actions.
(b) The clerk shall collect an automated record keeping fee as follows:
(1) Seven dollars ($7) after June 30, 2003, and before July 1, 2011.
(2) Four Five dollars ($4) ($5) after June 30, 2011.
Moreover, under SECTION 260, the following change applies to distribution of the automated record keeping (ARK) fees via a new IC 33-37-7-2(b)(7):
(A) For a county operating under the state's automated judicial system, one hundred percent (100%) of the automated record keeping fee (IC 33-37-5-21) not distributed under subsection (a).
(B) For a county not operating under the state's automated judicial system, eighty percent (80%) of the automated record keeping fee (IC 33-37-5-21) not distributed under subsection (a).
What this means is that counties with their own Case Management Systems (CMS) no longer will have to collect the ARK fee and send all of it to the State, plus pay for their own county's CMS entirely out of their own county funds; instead they may use 20% of the ARK funds they collect for that purpose, and send along the remaining 80% to the State.

Further, the bill makes a change via SECTION 256 on page 269 that is intended to insure that "the division of state court administration certifies that the judicial technology automation project is in compliance with the information sharing and exchange provisions of IC 33-24-6-3(a)."

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Indiana Courts

Ind. Law - "GOP wraps classic session at Indiana General Assembly"

Eric Bradner of the Evansville Courier & Press did a great job yesterday of summarizing what happened, what passed, and what failed.

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Indiana Law

Ind. Law - What handgun bills passed this session of the General Assembly?

See this list of earlier ILB entries. Every gun bill mentioned in these entries has passed the General Assembly and is on its way to the Governor, or already has been signed into law.

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...

Posted in The Indiana Law Blog on April 17, 2011 03:14 PM

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

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

Posted in The Indiana Law Blog on February 20, 2011 04:05 PM

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

Current law provides that a person who does not possess a valid handgun license may not carry a handgun in any vehicle or on or about the person's body unless the person: (1) is in the person's dwelling or fixed...

Posted in The Indiana Law Blog on January 25, 2011 07:10 PM

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Indiana Law

Ind. Courts - More on: Lawyer suspended in 2008 sentenced to nine years in prison for stealing from the trust fund accounts of 23 clients

This Feb. 4, 2011 ILB entry quotes a story about Mr. Patterson's sentencing.

Today this Supreme Court order, dated April 28, 2011, has been posted. From the order:

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(11.1)(a), files a "Notice of Guilty Finding and Request for Suspension," asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony.

The Court, being duly advised and upon careful consideration of all materials submitted, now finds that Respondent has been found guilty of Theft, all class D felonies. Respondent is already subject to a suspension order entered in Cause No. 82S00-0402-DI-90.

IT IS THEREFORE ORDERED that Respondent is suspended pendente lite from the practice of law in this State, effective immediately. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). The suspension shall continue until further order of this Court or final resolution of any resulting disciplinary action, provided no other suspension is in effect.

Here is a list of a number of earlier ILB entries containing the phrase "Douglas Patterson."

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Controversial utility bill heads to governor"

The ILB has been written about this provision in SB 251 several times, referencing it as CWIP (construction work in progress), but this is the first time I've seen notice in the press. From Chris O'Malley of the IBJ's report today:

A bill that opponents described as a “Christmas tree wish list” for electric utilities is on its way to Indiana Gov. Mitch Daniels for signing.

Senate Bill 251 allows utilities to quickly pass to ratepayers the cost of so-called clean-energy projects, including nuclear power plants and solar and wind power, during the construction phase rather than after the facility is operating. The bill passed the Indiana House 62-34 and the Senate 31-19.

Such a move shifts risks of design, construction and operating away from utility shareholders and on to utility ratepayers “while monopoly utility companies walk away with all the profit,” said Kerwin Olson, program director of utility watchdog group Citizens Action Coalition.

The Indiana Energy Association, which represents electric utilities, has noted that utilities face additional federal pollution-control regulations and need the flexibility to quickly make expensive capital investments to comply with them.

Currently, only so-called clean-coal projects, such as Duke Energy Corp.’s coal-gasification plant in Edwardsport, can tap ratepayers during construction.

ILB: This is also the bill that now includes the CO2 pipeline emminent domain provisions. Here is a list of earlier ILB entries on SB 251. See particularly the very end of this one from April 22, 2011.

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

State of Indiana v. C.D. - For summary and comments, see May 4th ILB entry.

NFP civil opinions today (3):

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

Sean Boylan v. Horvath Communications Inc., et al. (NFP)

Edward Shaffer v. Wells Fargo Bank (NFP)

NFP criminal opinions today (1):

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

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Ind. App.Ct. Decisions

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

From U.S. v. Runyan (ND Ind., Moody), a 5-page per curiam opinion:

David Runyan appeals his 63-month sentence for being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). He argues that the district court wrongly sentenced him to the high end of the Guidelines range without meaningfully considering his personal history and characteristics, see 18 U.S.C. § 3553(a)(1)— namely, the care he gave years ago to his then-terminally ill father. We affirm.

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - SCOTUS finally denies cert in challenge to Indiana Code of Judicial Conduct

Updating this ILB entry from Oct. 21, 2010, the SCOTUS today denied cert in the case of Torrey Bauer, David Certo, and Indiana Right to Life, Inc. v. Randall T. Shepard, et al., which was a challenge to Indiana’s prohibitions on judicial campaign speech. See the SCOTUSblog page here for the documents, including the 7th Circuit opinion and the briefs.

For background start with this ILB summary of the August 20, 2010 7th Circuit opinion and its links.

See today's SCOTUS order list here. The denial is on p. 3.

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Indiana Decisions

Ind. Law - What happened -- what laws passed?

The first place to look is here, on the Governor's Bill Watch page. The Governor has signed every bill he has received so far. More are on the way, but no vetoes are anticipated. The Governor is going out-of-town, so there may be a lag this week.

This page from the General Assembly site gives, in darker type, bills still alive, and either at the Governor's, or being prepared for submission.

This Enrolled Act summary, which will be updated regularly until all the bills have been processed by the Governor, gives enrolled acts with their effective dates, their Public Law numbers, etc.

This Table of Citations Affected lets you see if a provision of the Indiana Code has been amended or repealed this year, and also lists new provisions. Note that it too can not be finalized until the Governor's actions are completed.

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending April 29 2011

Here is the Clerk's transfer list for the week ending April 29, 2011. It is one page (and 3 cases) long.

One petition to transfer was granted, with opinion, on April 27th, in the case of Martin Serrano v. State of Indiana and the City of Fort Wayne. See 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, May 02, 2011
Posted to Indiana Transfer Lists

Ind. Courts - More on: Chief Justice Shepard in hospital

Updating this ILB entry from Sunday morning, Kathryn Dolan, Indiana Supreme Court Public Information Officer has announced this morning:

I've received a few inquiries regarding the Chief Justice. He has a pinched nerve in his neck resulting in pain that has been difficult to deal with, as you can imagine. He is working on managing the problem.

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Indiana Courts

Ind. Courts - Feb. bar exam results out

Access them here.

I do not see Senator Mike Delph...

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Indiana Courts

Ind. Courts - New budget bill puts judges' and prosecutors' pay raises in Chief Justice's court

The new budget (HEA 1001), according to a summary from Speaker Bosma's office, "Temporarily (for 2 years) freezes legislator salaries at current levels, and provides discretion to the Chief Justice for pay increases for judges and prosecutors."

Where is this in the budget?
See SECTION 265, on p. 275 of the PDF version of the CCR. The current language of IC 33-38-5-8.1, which presently ties the salaries of judges and justices to that of state employees, so that when state employees get a raise, so automatically do judges, is amended to add this proviso:

However, a salary increase that would otherwise occur under this section in the state fiscal year beginning July 1, 2011, or in the state fiscal year beginning July 1, 2012, shall not occur unless the increase for that state fiscal year is approved by the chief justice of the supreme court.
For more, see the second half of this ILB entry from Feb. 20, 2011.

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Indiana Courts

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

Here is the answer to "What did you miss over the weekend from the ILB?

But first, 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, May 1, 2011:

From Saturday, April 30, 2011:

Posted by Marcia Oddi on Monday, May 02, 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 5/2/11):

Thursday, May 5th

Next week's oral arguments before the Supreme Court (week of 5/9/11):

Thursday, May 12th

Webcasts of Supreme Court oral arguments are available here.



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

Wednesday, May 4th

Next week's oral arguments before the Court of Appeals (week of 5/9/11):

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

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


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

Posted by Marcia Oddi on Monday, May 02, 2011
Posted to Upcoming Oral Arguments

Sunday, May 01, 2011

Ind. Law - "Sex offenders casting ballots in region schools"

Marisa Kwiatkowski reports today in a long story in the NWI Times:

At least 22 of Lake County's 628 registered sex offenders have voted at polling places in schools since 2008, a Times analysis of voter and sex offender registry records shows.

Thirty-seven other offenders are registered to vote in schools or youth buildings but haven't done so.

No laws keep them from entering school property to vote, however.

While Indiana makes it a crime for some sex offenders to live or work within 1,000 feet of a school, the law doesn't prohibit them from walking into one.

That was news to some children's advocates and criminal justice officials, who say allowing sex offenders into schools could put region children at risk. Others argue prohibiting sex offenders from entering schools would not solve any problems and could do more harm than good.

Posted by Marcia Oddi on Sunday, May 01, 2011
Posted to Indiana Law

Ind. Gov't. - "Indiana lawmakers are making it clear they couldn’t care less about wind power"

A long report today in the Fort Wayne Journal Gazette, by editorial writer Stacey Stumpf, looks at SEA 251, mentioned by the ILB in the previous entry. A quote:

Escalating costs and detrimental environmental effects of reliance on fossil fuels are impelling more states to adopt policies mandating increased use of renewable energy resources. But state legislation passed last week and some local opposition could be sending the message that future wind power investment is unwelcome in Indiana – despite the strong winds, dependable electricity infrastructure and abundant agricultural land that make wind energy a natural fit for the state.
The story also points out:
[S]ome counties – such as Whitley – are battling to develop wind energy ordinances that encourage wind farm development but protect property owners and preserve quality of life.

For months county leaders have worked on an ordinance but were met with angry resistance, much of it coming from Whitley County Concerned Citizens.

Posted by Marcia Oddi on Sunday, May 01, 2011
Posted to Indiana Government

Ind. Gov't. - "Daniels pushed and pushed for clean coal plant"

A long story in the Sunday NWI Times, reported by Keith Benman.

For background, see this long list of ILB "gasification" entries.

Some quotes:

[W]here Daniels and his allies see their plan as a valiant effort to provide a market for coal and clean up the environment, opponents see nothing but an attempt to pad the pockets of investors and a key ally of the governor.

"Ratepayers are receiving nothing in this deal other than a charge tacked on their bills that will benefit Leucadia investors," said Kerwin Olson, a utility campaign organizer with the Citizens Action Coalition. "They are using a captive rate base to implement their business plan."

Critics such as Olson are quick to point out the involvement of Mark Lubbers, Daniels' former Statehouse political director, who is working for Leucadia as its Indiana Gasification project manager.

In an interview with The Times, Lubbers said he already had left his Daniels administration post when he was first contacted about the Indiana Gasification project in early 2006. He said his wife, then a state senator, recused herself from voting on Indiana Gasification legislation in 2007 and after. * * *

Politics aside, Daniels and other supporters acknowledge the deal is a complex one.

In essence, it has the state's more than 1.7 million utility customers, including those at NIPSCO, paying for losses the Indiana Gasification plant would incur when natural gas prices are low. Conversely, utility customers would get a split of the profits produced when natural gas prices are high.

Natural gas prices were very high when Daniels first announced plans for the plant in October 2006. Natural gas futures were trading around $7.15 per million British thermal units, according to U.S. Energy Information Agency data. Earlier that year, the price had gone as high as $10.63.

Since then, natural gas prices have plummeted. This year, natural gas futures never even approached $5 per million Btus. They currently are trading around $4.20.

Those plummeting prices have significantly changed the profit picture for Indiana Gasification and the state's utility customers. If prices remain that low, the state's utility customers could see regular surcharges on their bills.

A sidebar shows the Indiana Gasification timetable. Missing from it, and from the main story, is recognition of the passage at the end of this session of the pipeline bill, which is now part of SEA 251.

A second story today by the same reporter is headed "Clean-coal gas deal could charge up NIPSCO bills." A quote from the long story:

The Indiana Utility Regulatory Commission has held three public hearings on the contract between the IFA and Indiana Gasification in the past two weeks. Evidentiary hearings before the IURC start Monday in Indianapolis.

Posted by Marcia Oddi on Sunday, May 01, 2011
Posted to Indiana Government

Ind. Gov't. - More on: "NWI legislator hopes to halt fox, coyote penning with new law"

However, no legislation passed. Updating this lengthy ILB entry from Nov. 30, 2010, Skip Hess, outdoor columnist for the Indianapolis Star, writes today under the heading "Fox and coyote penning should be banned." Hess concludes his column:

I spent several hours last week reading people's comments on articles about hunt dogs practicing on wildlife held in enclosures. The words "appalled," "shocked" and "horrified" were common.

One of the comments was from a man, who after reading about dogs allegedly catching captive coyotes and seeing photos of dogs ripping their prey to shreds, was so angered that he wrote, "Excuse me while I go shove my fist through a wall."

The feeling here is mutual. Do what Florida did. Ban it.

More:
On May 10 at 6 p.m., a hearing will be held at the Canyon Inn's Sycamore room at McCormick's Creek State Park near Spencer in Owen County. A second hearing will be held May 11 at 6 p.m. at Webster Recreation Center, 110 Webster Ave., Plymouth.

Hoosiers also can mail or email their comments to NRC members by May 18. To email, log on to in.gov/nrc/2377.htm and click on "comment on proposed rule" next to "coyote/fox dog training grounds rule amendments." Mailed comments should be sent to Natural Resources Commission, Indiana Government Center North, 100 N. Senate Ave., Indianapolis, IN 46204.

Posted by Marcia Oddi on Sunday, May 01, 2011
Posted to Environment | Indiana Government

Law - Do any Indiana law schools do this? [Updated]

Send admission letters to prospective students along with an offer of a full tuition merit scholarship. To keep the grant, all they have to do is "maintain a grade-point average of 3.0 or above — a B or better." Dipping below that number at the end of the first or second year means losing the scholarship for good.

The problem is, as pointed out in this very long NY Times Sunday article by David Segal, who focuses on Golden Gate University School of Law in San Francisco:

How hard could a 3.0 be? Really hard, it turned out. That might have been obvious if Golden Gate published a statistic that law schools are loath to share: the number of first-year students who lose their merit scholarships. That figure is not in the literature sent to prospective Golden Gate students or on its Web site.

But it’s a number worth knowing. At Golden Gate and other law schools nationwide, students are graded on a curve, which carefully rations the number of A’s and B’s, as well as C’s and D’s, awarded each semester. That all but ensures that a certain number of students — at Golden Gate, it could be in the realm of 70 students this year — will lose their scholarships and wind up paying full tuition in their second and third years.

Why would a school offer more scholarships than it planned to renew?

The short answer is this: to build the best class that money can buy, and with it, prestige. But these grant programs often succeed at the expense of students, who in many cases figure out the perils of the merit scholarship game far too late.

The Times points to U.S. News rankings as the culprit. More from the story:
After fall semester exams, it dawns on thousands of 1L’s, as first-year law students are known, that their financial future is about to change dramatically for the worse.

As realities set in, many are irate. Others, like Ms. Leumer, who graduated from Golden Gate in 2009, feel snookered.

“By the middle of second semester of that first year, everyone saw the system for what it was,” she said. “We were furious. We realized that statistically, because of the curve, there was no way for many of us to keep our scholarships. But at that point, you’re a year in. They’ve got you. You feel stuck.” * * *

POPULAR student mythology has it that the A.B.A. requires law schools to grade them on a curve. Not so. But by loading up 1L’s with curved classes, Golden Gate and other schools all but ensure that the first year of law school is far more difficult than the two that follow. Which is another way of saying that for many merit grant winners, law school becomes easier, but only after it is too late.

Ms. Leumer’s experience is typical. She took few classes that were graded on a curve in Years 2 and 3, and her grades kept improving. Her cumulative G.P.A. for all three years was 3.14.

[Update] Law prof Eugene Volokh of The Volokh Conspiracy defends grading on a curve in his entry here.

Posted by Marcia Oddi on Sunday, May 01, 2011
Posted to General Law Related

Ind. Law - "Georgia will join 47 other states in allowing liquor sales on Sundays, leaving just Connecticut and Indiana as the country's remaining blue-law holdouts"

That from this April 29th survey article by Robert Taylor of Wine Speculator, headlined "Wine Laws Changing in up to 7 States: Winery direct shipping coming to Maryland and New Mexico."

The story does overlook HEA 1132, which, according to the most-recent synopsis:

Farm wineries and direct wine sellers. Requires the alcohol and tobacco commission to submit a report, not later than November 1, 2011, to the general assembly concerning direct wine shipment to consumers in Indiana. Removes provisions concerning certain requirements for applicants of direct wine seller's permits. Allows a direct wine seller to ship directly to a consumer in Indiana only wine manufactured, produced, or bottled by the seller. Increases the number of days that a holder of a farm winery permit may participate in a trade show or an exposition with the approval of the alcohol and tobacco commission from 30 days to 45 days in a calendar year. Provides that the provisions concerning microbreweries apply to breweries that manufacture not more than 30,000 barrels of beer. (Under current law, the provisions apply to breweries that manufacture not more than 20,000 barrels of beer.).
HEA 1132 has not yet been received by the Governor.

Posted by Marcia Oddi on Sunday, May 01, 2011
Posted to Indiana Law

Ind. Courts - Chief Justice Shepard in hospital

That according to this Friday, April 29th story by Mark Wilson of the Evansville Courier & Press, headed "Evansville Bar Association celebrating 100th anniversary." Halfway though the story:

The association then dedicated a restored Superior Courtroom in the Old Courthouse, now named the "Randall T. Shepard Courtroom," in honor of the Evansville native who currently serves as Indiana Chief Justice. Shepard was to have been guest speaker at the event but could not attend because he was in the hospital and watched the event on a laptop computer via the Internet.

However, Indiana Court of Appeals Judge Melissa May read a speech on his behalf.

A check back by the ILB of the three Supreme Court oral arguments from Wednesday, April 27th reveals that the CJ was not present. Only four justices were present for the three arguments, with the CJ's center seat vacant. Justice Dickson, presiding, explained that "illness prevents [the CJ's] attendance but he does intend to participate in the case," continuing that because of webcasting, he will be able to review the same argument we are hearing today.

The ILB checked the Wednesday, April 20th oral arguments. In the first, Sarah Haag, et al. v. Mark Castro, et al., beginning at 9:00 AM, only three justices filed in and took their seats. Justice Dickson explained: "You are not looking at a Court of Appeals panel. The CJ is under the weather and J. David is not participating."

The Court had no oral arguments the week of April 13th. The CJ was present for the April 6th oral arguments.

Posted by Marcia Oddi on Sunday, May 01, 2011
Posted to Indiana Courts