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Thursday, June 30, 2011

Courts - "Justice Ginsburg reflects on term, leadership role"

Joan Biskupic of USA Today has a nice interview with Justice Ruth Bader Ginsburg - a sample:

Ginsburg's new status on the court coincided with the death of her husband of 56 years, Martin, from cancer and with the historic addition of the court's third sitting female justice.

"It has felt distinctly different," she said about three women, who now include Sonia Sotomayor and Elena Kagan. Observing that their varying seniority means the three women's seats are not clustered together, Ginsburg said, "I like the idea that we're all over the bench. It says women are here to stay."

Another:
Twice in the past term, Ginsburg took the uncommon step of reading portions of a dissenting opinion from the bench.

In her most passionate protest, she objected when the conservative bloc threw out a $14 million verdict won by a former Louisiana Death Row prisoner in a civil rights claim against prosecutors who had failed to turn over blood evidence that might have helped show his innocence.

"It was an instance of extreme injustice. I thought that the court was not just wrong but egregiously so," she said. She said she decided not simply to let the written statement speak for itself, as is the usual practice, to bring attention to a criminal justice system that "had misfired."

"I was doing it to influence my colleagues and (lower court) judges who could stop this kind of thing," she said of prosecutors' concealing exculpatory evidence.

Posted by Marcia Oddi on Thursday, June 30, 2011
Posted to Indiana Courts

Ind. Law - "New state laws ready to reshape Hoosier life: Dozens of mandates will take effect Friday"

The IndyStar's Mary Beth Schneider puts a nice twist on the traditional "New laws taking effect July 1st" story.

If you are looking for the new laws, the General Assembly's unofficial version of the Indiana Code has now been updated to incorporate the 2011 changes and additions.

Posted by Marcia Oddi on Thursday, June 30, 2011
Posted to Indiana Law

Ind. Law - "Avon police seek talented counterfeiter"

At first glance I thought the headline was for a want ad ...

But no, someone is passing fake Benjamins, according to this story from WTHR TV:

Police are hoping you can help identify a man passing what they call some of the best counterfeit bills they've ever seen. * * *

There are security camera pictures of a man Avon police hope you can help identify. He's passed several fake 100 dollar bills at businesses in Avon and the Indianapolis area. The fake 100 dollar bills are made with real 5 dollar bills so they would pass the marker test you see cashiers do at the check out.

But when the fake bill with Franklin's portrait on it is held up to the light you can see the watermark portrait of Abraham Lincoln.

Posted by Marcia Oddi on Thursday, June 30, 2011
Posted to Indiana Law

Ind. Decisions - Designated driver practice trashed? Passengers of DD Can Be Charged With Public Intoxication

Re the Supreme Court's decision June 28th in Brenda Moore v. State of Indiana, the ILB wrote in this summary Tuesday:

At issue in this case was what does it mean to be "intoxicated in a public place or place of public resort within the meaning of Indiana Code section 7.1-5-1-3." Worth reading.
Ogden on Politics takes the analysis a step further.

Posted by Marcia Oddi on Thursday, June 30, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Disciplinary charges have been filed against the Hammond City Court Judge, Jeffrey A. Harkin

Here is the long news release from the Indiana Courts. A quote:

Two of the three counts of misconduct include allegations Judge Harkin participated in an unlawful fee distribution plan which cut the State of Indiana and Lake County out of their rightful shares of court costs on traffic infractions. The remaining count of misconduct includes an allegation Judge Harkin made inappropriate remarks to a traffic defendant who wanted to contest an infraction ticket.
Here is the 13-page document headed “Notice of the Institution of Formal Proceedings and Statement of Charges.”

[More] Here is an interesting list of earlier ILB entries on Judge Harkin.

Posted by Marcia Oddi on Thursday, June 30, 2011
Posted to Indiana Courts

Ind. Courts - More on: Brizzi reports that disciplinary charges against him may be dropped

Update - The ILB is attempting to obtain a copy of the hearing officer's recommendation in the Carl Brizzi matter. I understand that, despite the news reports of the findings, Judge Charles Charles D. O’Connor, Jr. has not yet filed a copy of his findings with the Clerk of the Supreme and Appellate Courts.

Posted by Marcia Oddi on Thursday, June 30, 2011
Posted to Indiana Courts

Ind. Gov't. - More on: Reexamination of charitable property tax exemptions involving Imagine Schools Inc. may disclose that Indiana education dollars are flowing out of state

Updating this ILB entry from April 19, 2011, Vivian Sade has a long story today in the Fort Wayne Journal Gazette headed: "Taxpayers liable for Imagine’s bill: Assessment ruling a blow to charter school." The story begins:

The first statewide challenge to the tax-exempt status of a charter school ended with a landmark denial for a Fort Wayne school, a decision that could be detrimental to Allen County taxpayers.

The property tax exemption for JERIT CS Fund LLC, property owners of the Imagine MASTer Academy’s 26-acre campus on North Wells Street, was rejected June 14 by the Allen County Property Tax Assessment Board of Appeals.

Indiana taxpayers will ante up rent and operating costs of $4.3 million this year for four Indiana Imagine charter schools – two located in Fort Wayne. The bulk of those dollars will not go back into the classroom; they will go to an out-of-state investment company that is in the charter school leasing business – the publicly traded Entertainment Properties Trust, which reported $84.7 million in profits last year.

The complicated investment strategy maze begins with JERIT, which is owned by Entertainment Properties Trust in Kansas City, Mo., a for-profit company that deals not only in real estate investments but also in multiplex theaters, water parks, ski resorts and vineyards, according to its website. * * *

The denial by the county tax assessment board holds that a property owner (JERIT), not just the tenant (Imagine Schools), must demonstrate the property is owned for a tax-exempt purpose for religious, educational, scientific or charitable reasons.

The board of appeals’ denial cited a Supreme Court case from December 2010, known as the “Oaken Bucket case,” in which justices reversed a decision by the Indiana Tax Court and ruled that a property owner doesn’t automatically qualify for a tax exemption even if property is used for a charitable or exempt purpose.

Posted by Marcia Oddi on Thursday, June 30, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 18 NFP)

For publication opinions today (3):

Coldwell Banker v. Laub Brothers Oil Co., Inc., et al.

Enhanced Network Solutions, Inc. v. Hypersonic Technologies , a 7-page opinion by Judge Riley, concerns a LinkedIn job posting and a non-solicitation clause in an agreement:

Whether the trial court erred when it found that Hypersonic did not solicit or induce an employee of ENS to terminate his employment in violation of the terms of the Sub-Contractor Agreement entered into between Hypersonic and ENS. * * *

Based on these definitions we cannot say that Hypersonic solicited or induced Dobson to terminate his position with ENS and to accept a job opening at Hypersonic in breach of the non-solicitation clause of the Agreement. The record clearly supports that Dobson made the initial contact with Hypersonic after reading the job posting on a publicly available portal of LinkedIn. In other words, Dobson solicited Hypersonic.

David L. Gibbs v. State of Indiana - In this 17-page opinion by Judge Riley, the conclusion is:
(2) the trial court did err in allowing the State to amend Gibbs' charging Information after reading the charges to the jury during voir dire. We reverse the trial court's decision and vacate Gibbs' conviction for arson as a Class B felony. Reversed and remanded for a new trial.
See particularly footnote 2 on p. 14, which begins:
The law regarding substantive amendments has changed significantly over the last five years, and the version of I.C. § 35-34-1-5 that our supreme court interpreted in Fajardo and we interpreted in Fuller is considerably different than the version of I.C. § 35-34-1-5 we are interpreting today.
NFP civil opinions today (7):

Edwin Blinn, Jr. v. Rick Kammen and The Law Firm of Gilroy Kammen & Hill (NFP)

Justin R. Leed v. Melissa A. Leed (NFP)

Mark May v. Ashley F. Ward, Inc. (NFP)

Donna J. Layton v. City of Lebanon (NFP)

Rodney L. Williams v. Sullivan County Sheriff's Department, et al. (NFP)

Gerry S. Hicks v. Rachel M. (Hicks) Villareal (NFP)

Trisha Dawn Hudson v. Jeffrey Michael Hudson (NFP)

NFP criminal opinions today (11):

Michael Carlton v. State of Indiana (NFP)

Quanardel Wells v. State of Indiana (NFP)

Tina Whiting v. State of Indiana (NFP)

Shawn D. Downs v. State of Indiana (NFP)

Jamison A. Brucker v. State of Indiana (NFP)

Llewellyn Richardson v. State of Indiana (NFP)

Peter Frericks v. State of Indiana (NFP)

James L. Whitfield v. State of Indiana (NFP)

Byron G. Lewis v. State of Indiana (NFP)

Hector R. Castillo v. State of Indiana (NFP)

Jarrod W. Fair v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 30, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today, so far

In Arturo Garcia-Torres v. State of Indiana, a 20-page, 4-1 opinion, including a 6-page dissent from Justice Rucker, Chief Justice Shepard writes:

Arturo Garcia-Torres was convicted of rape, attempted rape, and two counts of burglary and was sentenced to thirty-six years in prison. Garcia-Torres challenges the use of DNA evidence gathered when police obtained a cheek swab. The parties having passed over the question whether the swab was a search requiring separate probable cause, we analyze the issue under ordinary doctrine of the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution. We affirm the conviction. * * *

As in those cases, the intrusion here is slight. The swabbing caused no discomfort, and Garcia-Torres has virtually no legitimate interest in concealing his identity following his lawful arrest. This Court has long held that the police are allowed to take fingerprints and other identifying physical information from those lawfully arrested. Palmer v. State, 679 N.E.2d 887, 892 (Ind. 1997) (fingerprinting); State ex rel. Bruns v. Clausmeier, 154 Ind. 599, 601–02, 57 N.E. 541 (1900) (other physical identifying information). “[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it.” Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992).

The various interests at stake on occasions when we have required a Pirtle advisement are not present here, so we do not extend that rule to these circumstances.

Conclusion: Therefore we affirm the judgment of the trial court.

Dickson, Sullivan, and David, JJ., concur.

Rucker, J., dissents with separate opinion:

At stake in this case is whether a person in police custody is entitled to be advised of his right to the assistance of counsel before consenting to a buccal swab for DNA. The majority says no. I respectfully disagree. * * *

In sum, it is clear to me that a buccal swab for DNA is a search within the meaning of the Fourth Amendment to the United States Constitution as well as Article 1 Section 11 of the Indiana Constitution. Because the search in this case was conducted without a warrant it was illegal and therefore unreasonable as a matter of law unless an exception applied. The only applicable exception in this case was consent to search, which the defendant gave. Thus there was no federal constitutional violation. But, the Indiana Constitution provides greater protection than the Federal Constitution. And under our state constitution the investigating officer was required to advise Garcia-Torres that he had a right to consult with his lawyer before consenting to the search. Because no such advisement was given, the consent was invalid as a matter of Indiana law. The evidence obtained thereby was thus inadmissible, and accordingly the trial court was required to grant Garcia-Torres‟ motion to suppress the evidence. I therefore dissent and would reverse the judgment of the trial court and remand this cause for a new trial.

Posted by Marcia Oddi on Thursday, June 30, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides disciplinary case involving giving jailed client "unauthorized materials"

See In the Matter of Jerry T. Drook, filed June 29, 2011. From the order:

Stipulated Facts: In November 2009, Respondent went to a jail to visit a client awaiting trial for the murder of his wife. While there, Respondent gave the client candy and written material that had not been authorized by the jail authorities. The written material was a letter from the client's sister pertaining to conversations between the sister and a witness for the state. Respondent was charged with two counts of trafficking with an inmate, which were resolved by a pre-trial division agreement under which Respondent admitted the allegations. * * *

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 8.4(b), which prohibits committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer.

Discipline: The parties propose the appropriate discipline is a 30-day suspension with automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 30 days, beginning August 10, 2011. * * * At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).

Ogden on Politics has an intersting post on this ruling, access it here.

Posted by Marcia Oddi on Thursday, June 30, 2011
Posted to Ind. Sup.Ct. Decisions

Wednesday, June 29, 2011

Ind. Decisions - Supreme Court issues four more opinions today

Making a total of seven today. So far.

The first opinion listed deals with sentencing. The three remaining concern attorneys fees with respect to the patients' compensation fund and adult wrongful death statute. Chief Justice Shepard, joined by Justice Rucker, dissents in all three cases. Sometimes quite strongly.

Donald A. Pierce v. State of Indiana

Hematology-Oncology of Ind., P.C. v. Hadley W. Frutis, et al.

Jeffery H. McCabe v. Commissioner, Indiana Dept. of Insurance

Indiana Patient's Compensation Fund v. Beverly S. Brown

Posted by Marcia Oddi on Wednesday, June 29, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - "Planned Parenthood juggles multiple lawsuits"

Politico reporter Sarah Kliff has this long report this morning.

Posted by Marcia Oddi on Wednesday, June 29, 2011
Posted to Courts in general

Ind. Decisions - Supreme Court issues two more opinions today

In Steven Siwinski, et al. v. Town of Ogden Dunes, a 12-page, 4-1 opinion, Justice David writes:

The Town of Ogden Dunes sued the homeowners for a permanent injunction and monetary fines, alleging the homeowners' short-term rental of their home was a violation of the town's ordinance against commercial use of property. * * *

From our reading of the definition, the critical phrase to interpret is "exclusively as a residence by one family." The Siwinskis interpret the phrase to mean that "exclusively as a residence" does not prohibit them from renting their home to multiple families. The Siwinskis argue the home is still used for things such as eating and sleeping and other things typically associated with a family residence. Furthermore, the Siwinskis interpret "by one family" to mean one family at a time, as opposed to multiple families living in a home at the same time. Conversely, the Town argues the phrase "exclusively as a residence by one family" suggests a dwelling intended to be used by only one family as a residence, and not rented to another family for a profit. The Town argues the Siwinskis are not exclusively using the residence, as they are sometimes using the residence and other times renting out the residence for profit. * * *

We find that the Town's ordinance is not ambiguous. We find that the ordinance facially states the Residential District shall have single-family dwellings, which are dwellings occupied exclusively as a residence by one family. We find no ambiguity here. We find the ordinance clearly forbids the renting of a home in the Residential District.

Notwithstanding the plain language, if we look at the ordinance as a whole to put context around the Residential District and Single-Family Dwelling definitions, our outcome is the same. * * *

The trial court correctly held that the Siwinskis' rentals of their dwelling was not a single family use as allowed in the Residential District because the dwelling was not occupied exclusively by one family. The Town is entitled to summary judgment as a matter of law. We now turn to the fine levied against the Siwinskis. * * *

We hold that the Siwinskis impermissibly rented their house in violation of the local Town Ordinances. We affirm the trial court's granting of summary judgment in favor of the Town of Ogden Dunes. We remand to the trial court to enter summary judgment in favor of the Town of Ogden Dunes and to determine the fine in accordance with Indiana Code section 36-1-3-8 of no more than $32,500 against the Siwinskis.

Shepard, C.J., and Dickson, JJ., concur.
Rucker, J., concurs in result with separate opinion.
Sullivan, J., dissents, believing the analysis of the Court of Appeals in this case to be correct.

In Citizens State Bank of New Castle v. Countrywide Home Loans, Inc., a 14-page, 4-1 opinion, Justice Rucker writes:
A mortgage holder foreclosed its mortgage, took title to the subject property at a sheriff's sale, and then sold the property to a third party. The foreclosing mortgagee subsequently discovered it had inadvertently failed to name a junior lienholder in the foreclosure action. We granted transfer to shed light on the status of the original first mortgage in this context. * * *

[T]he record is clear that Citizen Bank's lien on the property was properly recorded and indexed. Other than essentially declaring mistake or inadvertence Countrywide does not explain why the lien was overlooked. In sum, Countrywide has failed to demonstrate that it is entitled to the remedy of strict foreclosure.

We conclude the trial court erred by entering summary judgment in favor of Countrywide and FNMA. We thus reverse the trial court on this issue and remand with instructions to enter summary judgment in favor of Citizens Bank, and for all other relief consistent with this opinion.

Judgment reversed and cause remanded.

Shepard, C.J., and Dickson and David, JJ., concur.

Sullivan, J., dissents with separate opinion. [which reads in part] Unfortunately, the “junior lienholder” was not joined in the foreclosure proceeding and so also became an “omitted party.” As such, its interest in the property was not foreclosed. Holmes v. Bybee, 34 Ind. 262, 270 (1870). What should happen here is that the senior lienholder and the omitted party get the practical equivalent of a “do-over” – a second foreclosure – in which the omitted party would be entitled to redeem its (subordinate) interest in the property and if it does not redeem, have its interest foreclosed. This was the result reached by the trial court. But instead, the Court allows the omitted party to maintain its lien on the property (now owned by Fannie Mae) but provides that the omitted party's lien is no longer subordinate to any senior lien. That is, the Court promotes the omitted party from a junior to the senior lienholder without having to pay anything to redeem its interest.

Posted by Marcia Oddi on Wednesday, June 29, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Legislative Panel to Review High Court Ruling on Illegal Police Entry This Wednesday

Updating Monday's ILB entry, the legislative meeting convenes at 1:00 pm today in Room 431 of the Statehouse and should be videocast via this link.

I hope to do some coverage, as with the Charlie White hearing yesterday.

1:16 - Meeting convened. Sen. Steele passing out handouts.

Andy __ is testifying now. Says, starting on p. 3, Court discusses common law right, then, on p. 6, winds up with - in sum. Was the opinion intending to deal with both the common law right, and the statutory right?

Sen. L. - In ftnote at bottom of p. 4, we don't know what was tendered with the instruction at the trial level. Do we presume the Court simply thought the Castle doctrine was inapplicable in this case?

1:27 - Mark Cornell, legal counsel, State Police. We don't think it much changes what we do. Sweeping language at top of p. 6 doesn't clarly invalidate the statute, so we are treating it as if it exists. We have the standing concerns about resistance. Two trains hurdling toward each other. Also we have concerns about right to resist outside the home. In sum, we don't think the opinion gives ISP any greater right than it had before.

Steele - But you can understand how some lesser trained police agencies might have a different opinion.

Sen. L. - Qs re deterrence effect on police officers in execution of warrant. My concern is non-warrant entries.

Cornell - Yes, that was in the Barnes case, a domestic violence situation.

Rep. Turner - Are you saying there is such a fine line between law and unlawful entry that it may not be determined until weeks or months later?

How many are black and white, as opposed to iffy? Answer - its small.

1:43 pm. Sen. Young. Purpose is to protect citizens from gov., not the reverse. Cites 1975 case re public policy of state. Ours was clarified in 2006 in statute. Our concern should always be protecting the citizen from an unlawful entry ...

That is why we have asked the Court to reconsider in light of our statute. Maybe in some circumstance, such as dometic violence, we (GA) should make public policy change, but it should be the GA that does it.

Sen. L. - On p. 5, allowing resistance unnecessarily escalates violence, and where does that get us in the end, you are arrested anyway. Isn't there a point there?

Sen. Young - But why shouldn't law enforcement back away and get a proper warrant?

Rep. Turner - Other states? Young - 43 states have gotten rid of their common law, but they didn't have a statute. Here we have a statute first.

Sen. Steele. I think we need to deal with this or we will have abrogated our duties and it would look like we decided not to deal with it. Will be meeting throughout the summer. (2:03 pm)

Posted by Marcia Oddi on Wednesday, June 29, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Brizzi reports that disciplinary charges against him may be dropped [Updated]

See the WISH TV story here.

See this Oct. 20, 2009 ILB entry headed "Hearing Officer Appointed In Brizzi Matter."

[Updated] John Tuohy reports this afternoon at the IndyStar website:

A hearing officer has recommended that former Marion County prosecutor Carl Brizzi be cleared of disciplinary charges.

Judge Charles Charles D. O’Connor, Jr., recommended the dismissal of charges that Brizzi made inappropriate comments about two murder cases, said a clerk in O’Connor’s office.

The recommendation was sent to the Indiana Supreme Court, which will make the final decision but is not bound by the recommendations. Each side has 30 days to submit petitions to the court for further review, said Kathryn Dolan, a spokeswoman for the court.

ILB: The ILB will try to post a copy of the hearing officer's recommendation. It is a public document. See this ILB entry from Nov. 11, 2010, that linked to then-Judge David's recommendation on Mark McKinney.

Posted by Marcia Oddi on Wednesday, June 29, 2011
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues two Indiana opinions today

In Aaron Smeigh v. Johns Manville, Inc. (SD Ind., Pratt), a 23-page opinion, Judge Tunder writes:

Aaron Smeigh brings this diversity suit against his former employer, Johns Manville (JM), for retaliatory discharge and civil conversion under Indiana law. He alleges that JM wrongfully terminated his employment for filing a workers’ compensation claim and unlawfully retained his personal property after his termination. JM moved for summary judgment on Smeigh’s claims and the district court granted the motion. Smeigh appeals.

We affirm. Smeigh has not presented sufficient evidence upon which a reasonable jury could conclude that he was fired in retaliation for filing workers’ compensation. Although he was terminated shortly after his workplace injury, the evidence shows that JM terminated him for his post-accident statement that he might not pass a drug test (he later passed the drug test) and subsequent refusal to sign an agreement presented by JM requiring him to undergo counseling and random drug testing (at Smeigh’s expense) to retain his job. Smeigh made no showing that JM’s proffered reason for terminating him was a lie to cover up retaliation.

Smeigh similarly has not presented evidence that JM knowingly exerted unauthorized control over his property. It was company protocol after termination to sort through an employee’s belongings to separate personal property from company property. Smeigh didn’t object when Bernice Wilson, a JM employee and union secretary, indicated she would clean out his locker and temporarily take possession of his belongings. His property (tools) was then stolen from Wilson’s office. Smeigh, however, never informed JM that Wilson still had possession of his tools or that he objected to her temporary possession of them. He waived any claim to vicarious liability and without providing some evidence that JM had the requisite mens rea, Smeigh’s claim fails as a matter of law.

In USA v. Brook Abebe (SD Ind., Barker), a 7-page opinion, Judge Flaum writes:
Brook Abebe pled guilty to armed bank robbery, discharge of a firearm during a crime of violence, and unlawful possession of a firearm by a convicted felon. He contends that the district court committed a procedural error in setting his sentence and that his above-guideline sentence is substantively unreasonable. We disagree and affirm the district court’s judgment.

Posted by Marcia Oddi on Wednesday, June 29, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issues much-anticipated ruling in A.B.

See this June 27th ILB entry for background.

Today the Supreme Court addresses the single-subject and separation of powers requirements of the Indiana Constitution and, in this case, defers to the General Assembly.

Indiana Department of Child Services v. A.B., a 33-page opinion with two separate concurring opinions, Justice David concludes:

The crux of the matter is the final phrase of Indiana Code section 31-40-1-2(f), ―if the placement is not recommended or approved by the director of the department or the director‘s designee.‖ This recommendation or approval is subject to appellate review, as discussed previously. DCS‘s refusal to approve the ROP placement was unreasonable and contrary to the evidence in this case that would have lead the reasonable person to determine ROP was the best placement for A.B. It appears as if the overriding factor—perhaps the only factor considered by DCS in not approving ROP as a placement—was that it was in Arizona and not in Indiana. When combined with the fact that ROP is less expensive than the Indiana options, the child and family’s willingness to go to ROP, and the fact that the plan is for independent living, the refusal to approve of ROP is arbitrary and capricious. DCS cannot be the final arbitrator of all placement decisions. Because we conclude that DCS‘s failure to approve ROP was arbitrary and capricious, we agree with the trial court‘s determination that DCS is responsible for the payment. DCS should have concurred with the decision to place A.B. at ROP. If DCS approved placement at ROP, they would have been responsible for payment. Ind. Code § 31-40-1-2(f). Because its decision to not approve ROP was arbitrary and capricious it is responsible for payment.

Conclusion. We conclude that Indiana Code section 31-37-17-1.4, Indiana Code section 31-37-18-9(a) and 9(b) as added by P.L. 146-2008, and Indiana Code section 31-40-1-2(f) as amended by P.L. 182-2009(ss), Sec. 387 are constitutional under Article 3, Section 1 of the Indiana Constitution [ILB-separation of powers]. We further conclude that Indiana Code section 31-40-1-2(f) as amended by P.L. 182-2009ss, Sec. 387 is constitutional under Article 4, Section 19 [ILB-single subject] of the Indiana Constitution. The child is ordered to continue in placement, if still in placement at ROP in Arizona. DCS is ordered to pay for said placement.

If DCS wants to disapprove and thereby not pay for out-of-state placement pursuant to statute, such decision is subject to appellate review, but only upon an arbitrary and capricious showing. [ILB emphasis] While perhaps very infrequently, scenarios can exist where the better placement for a juvenile is outside of Indiana. Our focus should be on what is best for the juvenile in light of all circumstances of a particular case, including consideration of the costs of placement. DCS will continue to make placement recommendations and either concur or not with the judicial officers placement decisions. However, DCS may not make these determinations in a manner that is arbitrary and capricious. Any party may take an appeal to the Court of Appeals, which will review the decision under an arbitrary and capricious standard as discussed above. If the Court of Appeals determines DCS arbitrarily and capriciously refused to approve the judicial officer‘s placement decisions, DCS will be responsible for payment as if it would have approved the recommendation.

Shepard, C.J. and Rucker, J., concur.
Dickson, J., concurs with separate opinion.
Sullivan, J., concurs in part with separate opinion.

This is a lengthy and fascinating opinion that will take the ILB some time to digest ...

Posted by Marcia Oddi on Wednesday, June 29, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (5):

Zachery Blackwell v. State of Indiana (NFP)

James Deloney Jr v. State of Indiana (NFP)

Christopher Collins v. State of Indiana (NFP)

Martin J. Russell v. State of Indiana (NFP)

John Chatman v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 29, 2011
Posted to Ind. App.Ct. Decisions

Tuesday, June 28, 2011

Ind. Gov't. - Indiana Recount Commission opinion [Updated]

The Indiana Recount Commission has now posted online today's "Findings of Fact, Conclusions of Law, and Final Order" in the Charlie White Election contest.

The vote was 3-0 in favor of Mr. White. The document is 32-pages long, with Commissioner Pylitt's concurring opinion beginning on p. 22.

[Updated 6/29/11] Here is the final version of Carrie Richie's story on yesterday's decision, as it appears in today's Indianapolis Star.

And here is a strong Star editorial today that concludes:

In a self-serving My View published in Tuesday's Star, White insisted his travails were not of his own making but that of his partisan opponents. Democrats certainly have tried to exploit the mess White has created, but his explanation fails to take into account why so many prominent Republicans have asked him to give up the office.

It also fails to place the blame for this embarrassment where it belongs: with Charlie White.

In a hearing before the Recount Commission last week, White's defense essentially centered on the argument that his personal life was such a mess that he couldn't be expected to define such details as a clear place of residence during the time when he sought the state's third highest elected office.

The Recount Commission bought that contention, ruling that White's intent was to live at his ex-wife's house (where he was registered to vote) even if he stayed there only part time. The question of White's residency is important in part because he served as a member of the Fishers Town Council until last September, when it was revealed that he had moved out of the district he represented. White said at the time that he didn't realize his new residence was outside of his old district.

A chief elections officer who can't be bothered with the details of election law? It sounds absurd, but that's the best defense White can offer for his actions.

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Indiana Government

Ind. Gov't. - National study shows 5% account for almost 50% of medical costs

Here is the story from Michael Winter, USA TODAY:

A new survey on health care finds that a small percentage of very sick patients accounts for about half of all medical spending and is the driving force behind double-digit increases in insurance premiums, the National Journal reports. * * *

In 2008, the average person's medical costs were about $233. For the top 1%, the average was $76,476.

See the 15-page report here.

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Indiana Government

Ind. Decisions - "Indiana's attorney general is appealing a judge's decision blocking part of new abortion law that took away some of the public funding for Planned Parenthood of Indiana"

So reports the AP's Ken Kusmer. The appeal was filed today with the 7th Circuit.

See earlier ILB entry from June 27th.

[More] Here is a longer version of today's AP story.

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court posts third opinion today

ILB: At issue in this case was what does it mean to be "intoxicated in a public place or place of public resort within the meaning of Indiana Code section 7.1-5-1-3." Worth reading.

In Brenda Moore v. State of Indiana, a 4-page opinion, Justice Dickson writes:

Brenda Moore appeals her conviction of Public Intoxication, a class B misdemeanor. Her sentence was modest. A divided Court of Appeals panel reversed. Moore v. State, 935 N.E.2d 301 (Ind. Ct. App. 2010). We granted transfer and now affirm the conviction. * * *

Declining the defendant's invitations to constrain the application of the public intoxication statute on grounds of public policy and to find a violation of a constitutional right to consume alcohol, we affirm the judgment of the trial court.

Shepard, C.J., and Sullivan and David, JJ., concur.

Rucker, J., dissents with separate opinion [that concludes] As this Court has declared “[g]iven the strong state and national interest of keeping persons who are intoxicated from operating motor vehicles, we think it sound policy to encourage sober drivers to get behind the wheel and not let their friends drive while drunk.” Smith v. Cincinnati Ins. Co., 790 N.E.2d 460, 462 (Ind. 2003). In this case Moore should not suffer a criminal penalty for taking the responsible action of allowing a sober friend to drive her car while she was too intoxicated to do so. I would reverse Moore’s conviction. Therefore I respectfully dissent.

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Updating "Charges in death of fetus should be dropped, experts say"

Updating this ILB entry from June 6, which reported that "Marion Superior Court Judge Sheila Carlisle has ruled that Bei Bei Shuai will not be released on bond," a notice of appeal was filed on the same day, quickly followed by a motion to expedite appeal.

Yesterday, June 27th, the Court of Appeals granted the motion for expedited appeal.

Case Number: 49 A 02 - 1106 - MR - 00486
SHUAI, BEI BEI V. STATE OF INDIANA

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Ind. Trial Ct. Decisions

Courts - "Where police needed probable cause before seizing your day planner, they can now piece together your whereabouts from your purchases, cellphone data and car’s GPS"

That is a quote from a brief article by Alex Kozinski, chief judge of the U.S. Court of Appeals for the Ninth Circuit and Stephanie Grace, his law clerk, titled "Remember what the Fourth Amendment protects? No? Just as well."

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Courts in general

Ind. Decisions - Supreme Court posts second opinion today

In Bruce Lemmon, et al. v. Michael L. Harris, an 18-page, 4-1 opinion, Justice Sullivan writes:

A sex offender who committed his crimes before the Legislature created the status of "sexually violent predator" challenges that status being subsequently imposed upon him "by operation of law." We conclude that his status has in fact changed by operation of law and that this change does not violate Indiana‘s prohibition on ex post facto laws or doctrine of separation of powers. * * *

Harris‘s status is an SVP by operation of law, and that classification does not violate the Indiana Constitution‘s Ex Post Facto Clause or separation of powers provision. The judgment of the trial court is reversed.

Shepard, C.J., and Rucker and David, JJ., concur.

Dickson, J., dissents with separate opinion: I respectfully dissent. In accord with the dissent in Jensen v. State, 905 N.E.2d 384, 396–98 (Ind. 2009) (Boehm, J., dissenting), I believe that the defendant's reclassification and the resulting enhanced requirements under the 2007 Amendment constitute additional punishments that violate the Ex Post Facto Clause of the Indiana Constitution when applied to this defendant, who was sentenced in 1999.

ILB: See IV, beginning on p. 14, for an interesting separation of powers argument:

Harris, supported by a helpful amicus brief from the Indiana Office of the Public Defender, also raises another constitutional argument with respect to the 2007 Amendment, one that we have yet to consider in our previous cases dealing with the Act. Relying on the Supreme Court of Ohio‘s recent decision in State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.2d 753, he contends that the Act violates the constitutional principle of separation of powers. Specifically, Harris maintains that the automatic designation of offenders as SVPs "by operation of law" has the effect of permitting the DOC, an executive branch of state government, to reopen final judgments and thereby exercise a function reserved to the judiciary by the Indiana Constitution. * * *

But unlike the Ohio Supreme Court, we do not think that the "by operation of law" clause works to reopen a final judgment in the present case. * * *

In other words, the "by operation of law" clause did not change a judicial determination that Harris was not an SVP to him being an SVP.

Nor do we think that the "by operation of law" clause removes the judiciary‘s discretionary function in sentencing and place it with the DOC. The statute does not grant the DOC any authority to classify or reclassify. SVP status under Indiana Code section 35-38-1-7.5(b) is determined by the statute itself. * * *

Unlike the statute at issue in the Ohio case, Indiana‘s Act preserves the judiciary‘s role in determining the status of offenders and their likelihood to reoffend.

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one (so far) today

In Randy Horton v. State of Indiana, a 5-page, 5-0 opinion, Justice Sullivan writes:

Randy Horton was convicted following a jury trial of six counts of child molesting as Class A felonies and three counts of child molesting as Class C felonies. He was sentenced to an executed term of 324 years in prison.

Horton appealed his conviction on grounds that the trial court had improperly admitted certain evidence at trial. He also appealed his sentence on grounds that it constituted an abuse of the trial court’s discretion to sentence him to such a lengthy term and that the term was inappropriately long given his character and the nature of his offenses. The Court of Appeals rejected these claims and affirmed in all respects. Horton v. State, 936 N.E.2d 1277 (Ind. Ct. App. 2010). We grant transfer under Indiana Appellate Rule 58(A) to address the sentencing claims. * * *

In reviewing this sentence, we find the approach articulated in Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008), to be helpful:

The principal role of appellate review should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes . . . . [A]ppellate review should fo-cus on the forest – the aggregate sentence – rather than the trees – consecutive or concurrent, number of counts, or length of the sentence on any individual count. * * *
* * *

In considering the general guidelines enunciated in Cardwell and other cases involving ongoing molesting of a child in a position of trust by a defendant with little prior criminal history, we conclude that fully enhancing the sentence for one Class A felony to 50 years is warranted. In addition, we conclude that the particular acts that the victim was subjected to and required to perform warrants an additional term of 30 years. Finally, we conclude that Horton’s causing the victim to contract herpes warrants a second additional term of 30 years. Accordingly, we revise Horton’s sentence to an aggregate executed term of 110 years, as follows: Count I: the maximum term of 50 years; Count II through VI: the advisory term of 30 years on each count; Counts VII through IX: the advisory term of four years on each count; the sentences on Counts I, II, and III served consecutive to each other; and all other counts served concurrent with each other.

We remand this case to the trial court with instructions to issue an amended sentencing order and to issue or make any other documents or docket entries necessary to impose a revised sentence consistent with this opinion, without hearing.

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Ind. Sup.Ct. Decisions

Law - "After New York, New Look at Defense of Marriage Act"

Interesting article today in the NY Times, reported by John Schwartz. A sample:

With New York’s law applying to 19 million residents and those from outside the state as well, a surge in same-sex marriages could ensue, with many of the couples migrating to places where those marriages are not recognized.

Twenty-nine states have constitutional amendments that define marriage as being between a man and a woman, and 12 have laws that ban recognition of same-sex marriage. Douglas NeJaime, an associate professor at Loyola Law School, said the increased number of married couples moving around the country would force more states to “deal with interstate recognition,” and would also have the effect of “putting more pressure on the everyday treatment of same-sex couples by the federal government.”

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to General Law Related

Ind. Decisions - Supreme Court decides difficult disciplinary case, rejecting hearing officer's recommendations

In the Matter of: Barbara A. TRANSKI, a 5-page opinion with a separate concurring statement by Chief Justice Shepard, and a dissent by Justice Rucker.

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "White found eligible to hold Indiana Secretary of State office " [Updated]

Here is Eric Bradner's just-posted Evansville Courier & Press story.

[Updated]
Here is the final version of the story.

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Indiana Government

Courts - Today SCOTUS grants cert in Illinois Supreme Court confrontation clause case; Idaho CWA case

See the SCOTUSblog case page on Williams v. Illinois. Issue:

Issue: Whether the Court should grant certiorari to review the Illinois Supreme Court's judgment that a testifying expert's reliance on the results of DNA analysis conducted at a private laboratory did not implicate the Confrontation Clause because references to the data generated by non-testifying analysts was offered not for the truth of the matter asserted, but rather for the non-hearsay purpose of explaining the basis of the expert's own, independent opinions.
In addition, this AP story reports: "The Supreme Court has agreed to consider the rights of landowners when confronted with an order from the Environmental Protection Agency that they are violating the federal Clean Water Act." The 9th Circuit case is Sackett v. EPA - here is SCOTUSblog case page.

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Courts in general

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

For publication opinions today (2):

In SJS Refractory Co., LLC, et al. v. Empire Refractory Sales, Inc., a 20-page opinion, Judge Brown writes:

SJS Refractory Co., LLC, (“SJS”), Patrick M. Johnson, (“Johnson”), and Patrick Salwolke (“Salwolke”), (collectively “the Appellants”), appeal the trial court’s judgment and award of damages and attorney fees in favor of Empire Refractory Sales, Inc., (“Empire”). The Appellants raise seven issues, which we consolidate and restate as: I. Whether the trial court erred in entering judgment including damages and attorney fees in favor of Empire on its conversion claim; II. Whether the trial court erred in awarding damages on Empire’s breach of fiduciary duty claim; and III. Whether the trial court erred in awarding Empire attorney fees as a sanction pursuant to Ind. Code § 34-52-1-1. We affirm in part, reverse in part, and remand for a calculation of damages consistent with this opinion.
In Term. of Parent-Child Rel. of D.L., et al.; F.L. and C.B. v. I.D.C.S., a 10-page opinion, Chief Judge Robb writes:
F.L. (“Father”) and C.B. (“Mother”) (collectively, “Parents”) appeal the trial court's orders terminating their parental rights to their six children. Procedurally, they raise one threshold issue: whether the “Notice of Intent to Appeal” they filed within thirty days of the judgments is sufficient to have initiated the appeal in a timely fashion. Substantively, they raise three issues which we consolidate and restate as one: whether the evidence was sufficient to support termination of their parental rights to each of their children. Concluding the appeal was not timely initiated, we dismiss. * * *

Parents argue their Notices of Intent to Appeal are “functionally equivalent” to the required Notice of Appeal and, though not stating so specifically, apparently argue their appeal should be considered timely as initiated on the date those Notices were filed. * * *

Parents also argue the notice of appeal is akin to the Indiana Tort Claims Act's notice of tort claim requirements. * * *

[W]e do not agree with Parents that their Notices of Intent to Appeal were “functionally equivalent” to a Notice of Appeal. The filing of those Notices did not, therefore, serve to initiate the Parents' appeal on the date of filing. The termination orders in this case were issued on August 20 and August 23, 2010. Thirty days from these dates was September 20 and September 22, 2010, respectively. The Notice of Appeal was filed on September 23, 2010. Because Parents did not file a timely notice of appeal, they have forfeited their right to appeal. * * *

Parents' Notice of Appeal was untimely and their appeal from the termination of their parental rights is therefore dismissed.

NFP civil opinions today (5):

Jane Gonzales, et al. v. Mike Fitousis, et al. (NFP)

Thomas Lee Keller, et al. . Daniel Ray Keller (NFP)

Mark Wheatley v. Utility Trailers of Indianapolis, Inc. (NFP)

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

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

NFP criminal opinions today (3):

Winston D. Wilson v. State of Indiana (NFP)

Rodney L. Houser v. State of Indiana (NFP)

Ponie Clark v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Ind. App.Ct. Decisions

Courts - "High Court OKs Sales Of Violent Video Games To Kids"

Nina Totenberg's NPR Morning Edition story on the SCOTUS decision yesterday in Brown v. Entertainment Merchants Ass'n. Her long story begins:

The U.S. Supreme Court, wrapping up its current term, has struck down California's ban on the sale of violent video games to children. A divided court majority said the law violates the Constitution's guarantee of free expression.

In 2005, California enacted a law that imposed a $1,000 fine on retailers any time they sold a violent video game to a minor. The state cited social science studies that it said showed kids who play these games for many hours are desensitized to violence and become more aggressive in their behavior. But the U.S. Supreme Court rejected those arguments Monday, and struck down the law.

Technically, the court was split 7-to-2, but the various concurring and dissenting opinions more closely resembled a 5-4 split.

SCOTUSblog's Lyle Denniston had a long, interesting analysis-post yesterday with this intro:
Reacting to changing times, the Court forbids government regulation of violent video games — even for young children. And it promises new looks at government’s power to protect children from profanity and nudity in broadcasting, and the government’s power to use electronic monitoring of private activity.

Boldly proclaiming that old constitutional principles do not yield to new waves of technology, but leaving itself chances to make some exceptions, the Supreme Court on Monday flatly barred state legislatures and Congress from trying to shield children from violent video games, took on anew the issue of whether government can protect children from dirty words and adult nudity on TV and radio, and promised a new decision on high-tech police surveillance and its impact on individual privacy. On the last public session of the Term, when modernity was front-and-center on the Court’s docket, the Justices were clearly not of one mind about it. and were not promising that they would be when they next explore today’s changing values.

This ILB entry from Oct. 8, 2010 notes that the 7th Circuit in 2001 threw out an Indianapolis ordinance that regulated violent video games. The case was American Amusement Machine Association v. Kendrick. Links in the entry follow the history from 2001 forward.

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Courts in general

Ind. Gov't. - Recount Commission votes 3-0 in favor of White - even the Democrat finding he was eligible to run for the office and properly registered to vote.

So tweets Niki Kelly of the FWJG.

9:51 am Carrie Ritchie of the IndyStar tweets: Democratic Recount Commission member Buddy Pylitt talking now. Says Dems didn't present sufficient evidence.

9:57 Carrie Ritchie: Commissioner Tom Wheeler criticizing Charlie White for being chief elections official but not knowing the elections laws. "Mr. White, you were very close to the line."

10:06 Niki Kelly: Recount Chair Wheeler admonished White for being "close to the line" and encouraged lawmakers to adjust law so it doesn't focus on intent.

See earlier tweets complied here. The ILB hopes to post the Commission's decision - check here.

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Indiana Government

Ind. Law - Still more on: Indiana's new expungement law

From Tracy Warner's opinion column today in the Fort Wayne Journal Gazette on HEA 1211:

Many Hoosiers still likely have not grasped the implications of a new law that allows certain criminal records to be sealed.

Here are two:

• The Indiana General Assembly has given job prospects permission to lie on applications.

• Courts will now have the equivalent of two sets of books regarding criminal convictions – one the public can see and one the criminal justice system can see.

And the worst part: These implications received little attention in the legislature’s debate on the issue.

The law allows people convicted of misdemeanors and the least-severe felonies, Class D, to petition for the convictions – and arrests – to be sealed from public view after eight years from the end of their sentence if they have a clean record since the conviction.

The law gives those affected permission to lie, stating: “The person may legally state on an application for employment or any other document that the person has not been arrested for or convicted of the felony or misdemeanor.”

This law means sheriff’s departments must alter jail records to indicate the convicted criminal was never there. Police must seal arrest records. County clerks will have to have separate court files for those convictions that will be hidden from the public. Information on the courts’ websites will have to be removed.

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Indiana Law

Ind. Gov't. - "Indiana voucher program lags weeks before debut "

From an AP report yesterday in the Gary- Post-Tribune, a long story that begins:

INDIANAPOLIS (AP) — Weeks before its scheduled launch, Indiana education officials still haven’t released even the most basic information on the state’s new school voucher program — the nation’s most sweeping to date that will pay for public school students to attend private schools.

State Superintendent of Public Instruction Tony Bennett said the delay in getting the program started resulted from the frequent changes lawmakers made to the voucher bill as it moved through the Legislature.

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Indiana Government

Ind. Gov't. - Charlie White hearing at 9 am

No live video.

But if we are lucky, tweets from reporters:

nkellyatJG Niki Kelly
Will the Indiana Recount Commission take Charlie White's office away? Find out through live tweets today.

CarrieRitchieIndyStar Carrie Ritchie
Charlie White hearing will begin at 9. Decision will be made, but not for several hours. Follow me for live tweets! #INSOS

shellawish Jim Shella
Hearing on Charlie White's eligibility to serve as Secretary of State begins. White is here.

Niki Kelly
Wow, the recount commission is correcting punctuation and grammatical changes to a proposed order.

Niki Kelly
They are going paragraph by paragraph over a document that the public doesn't have and can't follow along with...

Jim Shella
Recount commission going paragraph by paragraph through proposed findings of fact.

ericbradnerC&P Eric Bradner
Tom Wheeler, the Indiana Recount Commission chair, is attempting to bore everyone to death at the beginning of the Charlie White hearing.

Jim Shella
Recount commission moving slowly through 21 page document.

Niki Kelly
As far as political intrigue goes, this hearing is pretty boring so far. Very clerical - haven't gotten to the meat of the allegations.

Jim Shella
Charlie White's criminal defense attorney just arrived.

9:39 am - Eric Bradner
Now the Indiana Recount Commission is finished with "findings of fact" document and moving on to "conclusions of law."

9:45 am Jim Shella
Recount commission chair reading conclusions aloud.

9:47 am Jim Shella
Recount commission finds White eligible

Posted by Marcia Oddi on Tuesday, June 28, 2011
Posted to Indiana Government

Monday, June 27, 2011

Ind. Decisions - COA posts another opinion late this afternoon

In Jerrell D. White v. State, a 5-page opinion on rehearing, Judge Baker writes:

In this case, the appellant-defendant Jerrell D. White was convicted of theft for stealing a cash register and cash from a restaurant. He was also convicted of receiving stolen property for divvying up that cash with his accomplice. On March 9, 2011, a panel of this Court concluded that these two convictions violated the prohibition against double jeopardy. White v. State, 944 N.E.2d 532, 536-37 (Ind. Ct. App. 2011). Additionally, we vacated the habitual offender finding because one of White’s alleged prior felonies was committed when he was fifteen years old, and the State offered no evidence to show that he was charged and convicted as an adult. Id.

The State petitions for rehearing arguing that this Court should remand with instructions to the trial court to rehear evidence on the habitual offender enhancement. We grant the State’s petition and remand with instructions. * * *

In this case, the habitual offender enhancement was vacated because the State failed to show that White was convicted of the predicate offenses in adult court. More particularly, White was fifteen when he committed burglary and arson and “[a]lthough the documents from Nebraska appear to show that White was tried and convicted in adult court, there was no evidence introduced to establish those facts.” White, 944 N.E.2d at 537. Pursuant to Jaramillo, the State should be permitted to retry the habitual offender enhancement. Therefore, the State’s petition is granted and the cause is remanded to the trial court with instructions that it rehear evidence on the habitual offender enhancement. We affirm our original decision in all other respects.

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Sen. Delph Criticizes Judges in Facebook and Twitter entries

Jim Shella of WISHTV News has the story. Quotes:

The state Senator who authored Indiana’s immigration reform law has criticism for the judge who struck down a portion of it. Mike Delph (R-Carmel) voiced that criticism on Facebook and Twitter * * * following [Judge Sarah Evans] Barker’s ruling on the immigration bill * * *. “Liberal elitism is choking America, especially our Halls of Justice,” he writes in one tweet sent on Saturday.

In another he says, “Judicial reform is grossly needed both at the national and state level. One of the great American lies is that Judges are apolitical.” The two messages are combined in a single posting on the state Senator’s Facebook page.

Delph is a law school graduate who is studying for his second attempt to pass the bar exam. If he was an attorney already, his comments could get him in ethical trouble. Said Bill Jonas of the state bar association when told of Delph’s tweets, “I would counsel any applicant for the bar against intemperate criticism of any judicial official.”

Senator Delph said he was unavailable for an interview today but in a phone call he said his criticism is not directed at Judge Barker personally but rather general statements directed at all judges. That includes Judge Barker, however.

Shella also notes: "Sarah Evans Barker is a Ronald Reagan appointee to the federal bench. She’s a Republican who previously served as U.S. Attorney."

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to Ind Fed D.Ct. Decisions | Indiana Decisions | Indiana Government | Indiana Law

Ind. Decisions - Attorney General files Response in Barnes v. State

Here are the documents:

Here is a link to all the earlier documents, including the COA and Supreme Court opinions.

Here is today's News Release:

[June 27, 2011 ] Supporting Hoosiers’ right to resist, AG files brief in Barnes case

Zoeller: Indiana Supreme Court is urged to reconsider ruling in police entry case

INDIANAPOLIS – Arguing that citizens have the right to reasonably and nonviolently resist unlawful intrusion by police, Indiana Attorney General Greg Zoeller today filed a legal brief urging the Indiana Supreme Court to reconsider its recent ruling in the Richard L. Barnes v. State case.

The defense recently filed a petition for rehearing. Though the Attorney General’s Office represents the prosecution on appeal and prevailed in the earlier ruling, Zoeller does not oppose the Court reconsidering the Barnes case. Because of legal concerns that the Indiana Supreme court’s May 12 ruling was overly broad, Zoeller believes the Court should vacate it and issue a new ruling, more narrow in scope.

“I welcome a reconsideration and a more narrow ruling by the Indiana Supreme Court that would affirm the convictions of Mr. Barnes while maintaining the right of reasonable resistance of illegal entry of a citizen’s home. The longstanding common law right is one that our law enforcement clients understand and respect and has served our state well,” Zoeller said.

The Attorney General’s response recommends that the case be reconsidered -- but for different legal reasons than the defense cited.

“Indiana law permits citizens to peaceably resist efforts of law enforcement outside the home, so citizens should have no less a privilege within their homes,” the State’s brief filed today said.

It will be up to the Indiana Supreme Court to decide whether to reconsider the Barnes case – and if so, whether to conduct a new hearing or rule based on briefs both sides submitted. The Court is under no deadline to decide.

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on: Proposed Findings of Facts and Conclusions of Law in Charlie White case

Updating this morning's ILB entry, here is a copy of the proposed "Findings of Fact and Conclusions of Law" filed Friday, July 24th by Respondent Charlie White in the election contest before the Indiana Recount Commission.

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to Indiana Government

Courts - More on "Tensions Run High, Very High, at Wisconsin Supreme Court"

Updating this entry from earlier today, Jennifer Epstein of Politico reports:

Infighting on Wisconsin’s Supreme Court must be resolved for the sake of the public’s confidence in the high court, Republican Gov. Scott Walker said Monday. * * *

“I think it is a very serious allegation, and ultimately, law enforcement is going to be involved to sort that out,” he added in an interview on the affiliated TV station, referring to an allegation that one justice put another in a choke hold during a meeting behind closed doors.

ILB: Strains on the separation of powers ...

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to Courts in general

Ind. Decisions - Legislative Panel to Review High Court Ruling on Illegal Police Entry This Wednesday

So announced State Sen. Brent Steele in a press release today. Some quotes:

STATEHOUSE (June 27, 2011) — State lawmakers will this week begin a formal review of the recent controversial Indiana Supreme Court ruling on illegal police entries, according to State Sen. Brent Steele (R-Bedford).

Steele, chair of the Legislative Council Subcommittee on Barnes v. State, said the panel’s first meeting will take place at 1 p.m. Wednesday in Room 431 of the Statehouse.

Subcommittee members include Sen. Tim Lanane (D-Anderson) and Reps. Eric Turner (R-Marion) and Linda Lawson (D-Hammond).

“Taking away the constitutional right Indiana residents have to resist questionable police entry into their homes is undoubtedly a shocking decision,” Steele said. “Though I am hopeful our state’s Supreme Court justices will reconsider the opinion and narrow their ruling, many questions have already been raised. Lawmakers now need to discuss ways to clarify self-defense and search-and-seizure laws in the 2012 legislative session.” * * *

“As there has been no reconsideration announced by the court, lawmakers will discuss possible resolutions,” Steele said. “While the public is invited to attend, public testimony will be taken at a later date.”

Here is the agenda.

ILB: The Attorney General is expected to file a response to the petition of re hearing before today's filing deadline.

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to Indiana Decisions

Law - "The Lawyer Surplus, State by State"

Check it out here, at the NYT blog, Economix.

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to General Law Related

Ind. Law - "Two pieces of legislation were declared unconstitutional by different federal judges before the bills even took effect"

That quote is not from this year. IU Indy-Law Professor Joel Schumm sends this note:

The two rulings last week by federal judges that new bills are unconstitutional is not really unprecedented. Just three years ago, in the 2008 short session, two bills met a similar fate. From my Indiana Law Review survey article in 2009:
E. Unconstitutional Before Taking Effect

Finally, two pieces of legislation were declared unconstitutional by different federal judges before the bills even took effect. Chief Judge Hamilton entered a declaratory judgment against amendments to Indiana Code section 11-8-8-8(b), which would have required registered sex offenders and violent offenders no longer on probation or parole to "consent to the search of their personal computers or devices with internet capability at any time" and "consent to installation on the same devices, at their expense, of hardware or software to monitor their internet use." 54 Although felons are often "prohibited from possessing guns, voting, and holding certain professional positions," 55 this legislation went considerably further by violating the Fourth Amendment protection of one's home. 56 "Unlike registering public information or working in particular professions, the right to privacy in one's home and personal effects is fundamental." 57

Days later, Judge Barker granted summary judgment in favor of a group of booksellers and artists who challenged amendments to Indiana Code section 23-1-55-2, which would have required any entity intending to sell "sexually explicit materials" to register with the secretary of state and "provide a statement detailing the types of materials that the person intends to offer for sale or sell." 58 The registration would have been a matter of public record; the secretary of state would have been required to notify local officials of registrants; and registrants would have been required to pay a fee. 59 Finally, the bill defined sexually explicit materials broadly, including those "harmful to minors (as described in [*943] IC 35-49-2-2), even if the product or service is not intended to be used by or offered to a minor." 60 The court concluded the bill unduly burdened First Amendment rights and was unconstitutionally vague and overbroad. 61 As to the final point, the court aptly described the overbreadth of the statute's reach: a "romance novel sold at a drugstore, a magazine offering sex advice in a grocery store checkout line, an R-rated DVD sold by a video rental shop, a collection of old Playboy magazines sold by a widow at a garage sale." 62 This reach was found "constitutionally disproportionate to the stated aim of the statute to provide a community 'heads-up' upon the opening of 'adult bookstore-type businesses.'" 63

ILB: You may access this Indiana Law Review article, Vol. 42, No. 4 (2009), here at the IndyLaw site. It is "Recent Developments in Indiana Criminal Law and Procedure" by Joel M. Schumm. Here is the direct link; the quoted material begins on p. 942.

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to Indiana Law

Ind. Gov't. - Proposed Findings of Facts and Conclusions of Law in Charlie White case

The ILB has received a copy of the proposed "Findings of Fact and Conclusions of Law" filed Friday, July 24th by the Plaintiffs in the Charlie White election contest before the Indiana Recount Commission.

The document is long (39 pp.) and fascinating reading, whether or not you watched last Tuesday's day-long hearing.

The ILB also would be very pleased to post the document posted on behalf of Mr. White - contact me if you can help.

The Recount Commission will be meeting tomorrow at 9:00 am. Will it be videocast? I don't know ...

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to Indiana Government

Courts - "Tensions Run High, Very High, at Wisconsin Supreme Court"

Nathan Koppel of the WSJ Law Blog, has this entry this morning. It begins:

The Wisconsin Supreme Court is arguably the most interesting high court in the nation. That is not necessarily a good thing.

The court is split between four justices who lean to the right and three who lean to the left. That sets the stage for tension, which has been stoked in recent years by rancorous contested elections for the court.

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to Courts in general

Ind. Law - "The fact that the judge was able to find grave problems with the legislation raises questions about how much consideration -- and how much input from doctors -- went into drafting those two measures in the first place" [Updated]

Re the PPIN opinion issued Friday, Heather Gillers has another story today (see Sat. story here) in the Indianapolis Star. The very long story begins:

A federal court put on hold two parts of a major anti-abortion law Friday on the grounds that both measures -- one ending Medicaid funding to abortion providers and one interfering with what doctors can tell patients -- have "a reasonable likelihood" of being permanently struck down.

The fact that the judge was able to find grave problems with the legislation after barely a month of court argument raises questions about how much consideration -- and how much input from doctors -- went into drafting those two measures in the first place. And, in a series of recent interviews, The Indianapolis Star found some startling answers.

In order to comply with the law, The Star discovered, doctors at Indiana University and Wishard Memorial hospitals several weeks ago stopped offering patients the option of terminating pregnancies, including in cases where the woman's health was at serious risk and where there was no possibility the fetus would survive.

The law's author said the intention was to allow such procedures, and the state Medicaid agency disagrees with IU's interpretation. But the controversial wording was inserted into the anti-abortion bill on the Senate floor -- after a similar measure died in the House -- giving no opportunity for public testimony about potential unintended consequences.

The other provision suspended by the court Friday -- requiring doctors to tell patients seeking abortions that fetuses can feel pain -- also was drafted with limited input from physicians.

Doctors were not entirely shut out of the legislative process. The Indiana State Medical Association chose to pass up its chance to publicly weigh in on the abortion bill and took no position on it. And doctors did have some influence on the bill. After hearing testimony from an oncologist with the IU Simon Cancer Center, lawmakers removed a provision requiring doctors to tell patients that abortion is linked to breast cancer.

The Star found strong evidence, however, that medical considerations were secondary at best. In interviews last week, the lawmaker who drafted the fetal-pain clause admitted she had consulted no scientific studies.

There is much more in the story.

Another important story on abortion today
; this one in the NY Times, reported by Erik Eckholm. Some quotes:
Dozens of new restrictions passed by states this year have chipped away at the right to abortion by requiring women to view ultrasounds, imposing waiting periods or cutting funds for clinics. But a new kind of law has gone beyond such restrictions, striking at the foundation of the abortion rules set out by the Supreme Court over the last four decades.

These laws, passed in six states in little more than a year, ban abortions at the 20th week after conception, based on the theory that the fetus can feel pain at that point — a notion disputed by mainstream medical organizations in the United States and Britain. Opponents of abortion say they expect that discussion of fetal pain — even in the face of scientific criticism — will alter public perception of abortion, and they have made support for the new laws a litmus test for Republicans seeking the presidency. * * *

Since Nebraska passed the first 20-week limit last year, Idaho, Indiana, Kansas, Oklahoma and, this month, Alabama have followed. A similar law has advanced in the Iowa legislature, and anti-abortion campaigners have vowed to promote such laws in more states next year.

The laws directly conflict with the key threshold set by the Supreme Court: that abortion cannot be banned until the fetus becomes viable. Viability, the ability to survive outside the womb, usually occurs at the 24th week of pregnancy or later, and is determined in individual cases by a doctor, said Elizabeth Nash, a policy analyst in Washington with the Guttmacher Institute, a research group.

This is also much more to read in this story.

[Updated at 11:20 am] Another story, this one from the AP, headed "In South Dakota, abortion counseling meant to discourage." Some quotes from the long story by Chet Brokaw:

SIOUX FALLS, S.D. (AP) -- The small sign outside the Alpha Center in Sioux Falls quietly announces a roster of available services: "Free pregnancy tests, abortion information, STD testing."

Inside the brick building, women can get a free ultrasound and hear about birth programs. But if you're a woman looking for help finding a legal abortion, you've come to the wrong place. Nowhere within this crisis pregnancy center will a visitor find help getting an abortion, in part because a new restrictive state law would such referrals illegal.

The center that says its goal is to counsel and educate pregnant women is one of three statewide that have signed up so far to be a required stop for those seeking an abortion if South Dakota's new abortion law survives legal challenges.

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to General Law Related | Ind Fed D.Ct. Decisions | Indiana Government | Indiana Law

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

For publication opinions today (3):

Gary Ludban, et al. v. Ronald Burtch, et al.

In the Matter of the Trust of Harrison Eiteljorg

Vincent M. Butler, Jr. v. State of Indiana

NFP civil opinions today (2):

Paternity of K.B.; J.B. v. J.D. (NFP)

Jerry L. Coleman v. Marla J. Coleman (NFP)

NFP criminal opinions today (1):

Kimberly L. Benedict v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS to hand down final four opinions of term today

Watching SCOTUSblog again ... Some quotes, which are updated continually:

Amy: We are expecting a decision in the violent video games, Brown v. EMA, as well as in the two personal jurisdiction cases and the Arizona campaign finance cases.

Amy: Just to review the two personal jurisdiction cases:

In Goodyear Luxembourg Tires v. Brown, the question is whether the NC courts have general jurisdiction over foreign subsidiaries of Goodyear; the case arises out of a bus accident in France in which two North Carolina teenagers were killed.

The other case is J. McIntyre Machinery v. Nicastro, and it involves specific jurisdiction. This case arises out of an accident in a New Jersey factory; the injured worker, Nicastro, filed a lawsuit in New Jersey against J. McIntyre Machinery, the British manufacturer of the machine that injured him; J. McIntyre had distributed the machinery through an Ohio distributor.

Cert granted in US v. Jones, the GPS tracking case.

Amy: Goodyear v. Brown is in. (opinion) The Court rules that the tire company not amenable to lawsuit in NC on claims unrelated to activity by the tire company in that state. RBG for unanimous court. NC Court of Appeals reversed.

Amy: The second opinion, J. McIntyre v. Nicastro, is in. The Court reverses the NJ Supreme Court.

There was also a per curiam in the Juvenile Male case. In this decision, the Court rules that the Ninth Circuit lacked authority to strike down the sex offender registration law as a violation of Ex Poste Facto Clause because it had no live controversy.

Amy: The Court strikes down the video game law. Opinion is by Scalia: the act forbidding sale or rental of violent games to minors does not comport with the 1st Amendment.

It's 7-2. Alito concurs in judgment, joined by the Chief Justice. Justices Thomas and Breyer dissent, in an opinion by Thomas. Court applies strict scrutiny standard and concludes that the law cannot meet that standard. Opinion.

Tom: The Alito/Roberts [concurring] opinion would have left more room for states to adopt more closely tailored laws.

Tom: So the majority quite broadly prohibits these sorts of statutes.

Kali: Here is the case page for the remaining case, AZ Free Enterprise v. Bennett, linked with McComish v. Bennett. Opinion is not up yet.

This is the campaign finance case.

Amy: The Chief Justice has the last opinion. AZ campaign finance regulations impose a substantial burden on the speech of the candidates and independent expenditure groups. It's 5-4, CA9 reversed.
Justice Kagan has the dissent, joined by RBG, Breyer, and Sotomayor.

Kali: Our last opinion for the term - Bennett - is here.

Tom: They strike down this matching funds provision, but say they are not holding that the First Amendment fobrids all public financing.

Tom: 16,000 or so readers. Thanks everyone for coming. Next Term may be the Term of the century with gay marriage, immigration, affirmative action, health care, and others potentially on the table (though not yet), so come back..

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to Courts in general

Ind. Gov't. - "Daniels’ Signature Privatization Moves Falling Apart"

Fascinating post this morning from Doug Masson of Masson's Blog.

[More] See also this related entry from June 23, 2011.

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to Indiana Government

Ind. Decisions - Our Supreme Court accepts certified question on railbanking and interim trail use

By an order posted this morning and filed June 23, 2011, the Supreme Court has accepted this Certified Question from the United States Court of Federal Claims:

“Under Indiana law, are railbanking and interim trail use pursuant to 16 U.S.C. § 1247(d) uses that are within the scope of the easements acquired by the railroad companies either by prescription, condemnation, or the deed at issue; and if either is not within the scope of the easements originally acquired, is railbanking with the interim tr[ai]l use a shifting public use?”

Posted by Marcia Oddi on Monday, June 27, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending June 24, 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 June 24, 2011. It is three pages (and 41 cases) long.

Seven petitions to transfer were granted [ILB - I'll have to fill in details later ...]:

__________

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, June 27, 2011
Posted to Indiana Transfer Lists

Ind. Courts - What might come down this week from our Supreme Court?

June 30th marks the end of our Supreme Court's fiscal and reporting year. What opinions might we see this week?

Prof. Joel Schumm notes that:

It looks like the Supreme Court has cleared out its Boehm-era cases and most of those argued in the final months of 2010. The big ones that remain include Desmond Turner's direct appeal and the A.B. case from South Bend.
Desmond Turner v. State of Indiana

Here is the most recent ILB entry on Desmond Turner v. State of Indiana, from Dec. 16, 2010. Here is a long list of earlier entries on the "Hamilton Avenue slayings case."

In re: the matter of A.B., a Child Alleged to be a Delinquent

Here was the writeup for the Oct. 20, 2010 oral argument.

In re: the matter of A.B., a Child Alleged to be a Delinquent (71S00-1002-JV-156) - The St. Joseph Probate Court entered an order modifying the disposition in this juvenile delinquency case, placing the juvenile in an out-of-state program, and requiring the Indiana Department of Child Services ("DCS") to pay for the placement. In doing so, the court found that DCS's recommendations for in-state placement were unreasonable and not in A.B.'s best interests and that several statutes giving DCS a role in the placement of juveniles are unconstitutional. DCS appeals directly to the Supreme Court.

ILB: This case involves the issue of the DCS and the courts re who has authority relating to the placement of children in out-of-state rehabilitation and treatment programs. The ILB has had a long list of entries on this issue. See particuarly this Oct. 16, 2009 entry ("More on the DCS and the courts re who has authority relating to the placement of children in out-of-state rehabilitation and treatment programs").

In addition, these two entries offer interesting background:

Posted by Marcia Oddi on Monday, June 27, 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? Quite a lot has been going on, and more expected today and tomorrow!

From Sunday, June 26, 2011:

From Saturday, June 25, 2011:

From afternoon Friday, June 24, 2011:

Posted by Marcia Oddi on Monday, June 27, 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 6/27/11):

Next week's oral arguments before the Supreme Court (week of 7/5/11):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 6/27/11):

Monday, June 27th

Tuesday, June 28th

Wednesday, June 29th

Next week's oral arguments before the Court of Appeals (week of 7/5/11):

Next Wednesday, July 6th

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, June 27, 2011
Posted to Upcoming Oral Arguments

Sunday, June 26, 2011

Ind Gov't. - "Elkhart County sheriff looks to implement anti-adultery policy"

So reports Emily Monacelli today in this story in the Elkhart Truth. It begins:

ELKHART -- Elkhart County's sheriff wants to put a stop to a problem he sees in the department - adultery.

Sheriff Brad Rogers is proposing a policy that would make any extramarital affair between a member of the sheriff's department and someone else - whether that person also is employed there or not - grounds for discipline.

"I believe it's important as a law enforcement agency that we uphold a high standard on our employees," Rogers said. "I try not to legislate morality onto anybody, but even to a heathen that's married, he would say 'stay away from my wife.'"

Rogers' proposed policy is in the hands of the county attorney's office for review. It states that employees of the sheriff's department "shall keep their private and public lives unsullied and an example to all, while maintaining the public's respect and trust." The policy goes on to say an affair between a member of the department and anyone else when one of the two are married or "any sexual conduct that is open, notorious, dishonorable, criminal, or the community would find deviant or repugnant" that would discredit the department or employee or bring enough scandal to undermine the public's trust in the department a "serious violation of department rules."

Rogers said the proposed policy reflects the standards he holds himself to and expects of his employees.

Posted by Marcia Oddi on Sunday, June 26, 2011
Posted to Indiana Government

Law - More on "New York Allows Same-Sex Marriage, Becoming Largest State to Pass Law"

Updating yesterday's ILB entry, where I included a link to the text of the new NYS law for you legislation junkies, today Danny Hakim of the NYTimes has an interesting story headed "Exemptions Were Key to Vote on Gay Marriage." Some quotes:

ALBANY — It was just a few paragraphs, but they proved to be the most microscopically examined and debated — and the most pivotal — in the battle over same-sex marriage.

Language that Republican senators inserted into the bill legalizing same-sex marriage provided more expansive protections for religious organizations and helped pull the legislation over the finish line Friday night.

The Republicans who insisted on the provision did not only want religious organizations and affiliated groups to be protected from lawsuits if they refused to provide their buildings or services for same-sex marriage ceremonies, they also wanted them to be spared any penalties by state government. That would mean, for example, a church that declined to accommodate same-sex weddings could not be penalized later with the loss of state aid for the social service programs it administers.

Such language is not unheard of; New Hampshire, which also approved a same-sex marriage bill, included similar protections. * * *

The amendment that was passed stated that barring access to same-sex ceremonies, or failing to provide services for them, would not “result in any state or local government action to penalize, withhold benefits, or discriminate against such religious corporation, benevolent order, a not-for-profit corporation operated, supervised or controlled by a religious corporation.”

The amendment also included protections for “any employee thereof being managed, directed or supervised by or in conjunction with a religious corporation, benevolent order or a not-for-profit corporation.” And it included similar protections for clergy who declined to perform same-sex ceremonies.

Finally, the legislation contained what is known as an inseverability clause. If a court found any part of the act to be invalid, the entire legislation would also be invalid. The clause is an important provision to Republicans because it means that the marriage legislation would be at risk if the religious exemptions were successfully challenged in court.

The NY Civil Liberties Union said the new legislation “respects the right of clergy, churches and religious organizations to decide for themselves which marriages they will or will not solemnize or celebrate in keeping with our country’s principles of religious freedom.”

Posted by Marcia Oddi on Sunday, June 26, 2011
Posted to General Law Related

Ind. Law - More on: Indiana's new expungement law

"Mercy for DWI driver overturned: Justices say Noble court lacks power"; Indiana's new expungement law" was the heading on an ILB entry from June 3, 2011, commenting on the case of State of Indiana v. Jeffrey Brunner and quoting from Niki Kelly's story in the Fort Wayne Journal Gazette.

In the second part of the June 3rd entry, I discuss the recently enacted HEA 1211, which will allow for expungement of arrest and conviction records in certain cases.

There is a follow-up in this June 7th ILB entry.

On June 18th Sarah Tompkins reported in the NWI Times in a story about Gary attorney Derrick Julkes' presentation at a forum on expungement, one of several being held in Lake County this summer. The story ends:

Julkes told the group that some might qualify to have their records expunged, or erased. To do so, he said they had to either have been arrested but never charged or have been a victim of mistaken identity.

"They all boil down to: You didn't do it," Julkes said.

But for those who did not qualify for expungement, he said there was still the possibility of getting a limited seal. The seal would prevent government agencies from giving out information to the public about a Class D felony or misdemeanor if neither resulted in someone being injured or was a crime against a child.

In the past, people had to be crime-free for 15 years before applying for a limited seal, he said, but after July 1 the waiting period drops to eight years.

And after the law kicks in, those offenders will not need to mark "yes" on job applications asking if they have been convicted of a crime.

But those records will not be hidden from databases used by private detectives and others whom employers can hire to do criminal background checks.

Julkes said if employers still can pull records through private venues, it might not be practical for offenders to claim they are conviction-free.

"I would say honesty is the best policy — with an explanation," he said.

[ILB: Re private detectives hired by employers to do background checks -- aren't they themselves licensed by the State? Page 4 of their private investigator firms application asks: "Have you ever been convicted of, pled guilty or nolo contendre to any offense, misdemeanor or felony in any state ..." What about other professions, such as the bar?]

On Indy6 News from June 24th, in a story headed "New Law Gives Hoosiers Hideout From Criminal Past: Ex-Offenders Could Hide Histories From Potential Employers," Jack Rinehart reports on the new law. A quote:

The intent of the legislation would limit background checks of an individual's criminal history to the past eight years. If the petition is granted, records would be available to law enforcement agencies, treatment agencies and service providers as required by a court.

Despite the new law, Joel Schumm, a professor at the Indiana University Law School, said that in this era of information technology, ex-offenders may find it increasingly difficult to insulate themselves from their past.

"The genie is already out of the bottle," Schumm said. "Private companies that do background checks are going to have access to the information already. I don't know if the law can keep prospective employers from getting information that's already out there."

Today reporter Kelly has a long FWJG story headed: "Shielding criminal past fires debate: Hoosiers enjoy new right to expunge certain records." Some quotes:
INDIANAPOLIS – Thousands of Hoosiers could shield their nonviolent criminal histories from public view – including from prospective employers – under a new law that goes into effect Friday.

Crimes such as theft, drunken driving, forgery and drug use would be unknown to everyone but police, and citizens could legally lie on job applications about their past. * * *

Under the provisions of House Bill 1211:

• Hoosiers who were acquitted, had a case dismissed or had a conviction vacated can petition to restrict disclosure of their arrest records.

• Those convicted of a misdemeanor or Class D felony that did not result in injury to another person can petition to restrict the records after finishing their sentence and remaining felony-free for eight years.

• In both these cases, judges are required to grant the petition if the small number of conditions is met. However, police would still be able to access the information.

• Those who have their records sealed are allowed to check “no” when asked on job applications or other documents whether they have been arrested for or convicted of a felony.

The bill does not, however, affect records in the public domain – for example, newspaper articles, blogs, television reports or other places that contain information on the court records.

“You can’t escape your past in terms of law enforcement and the Internet,” said Larry Landis, executive director of the Indiana Public Defender Council.

The new law came as a surprise to many people who have tried for years to loosen Indiana’s rules allowing for the expungement of old convictions. * * *

[Landis] noted that defense attorneys have pushed to ease the law for years, but even he was surprised by the breadth of the bill.

Some people are raising concerns while also acknowledging the bill could help thousands of families.

Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council, said prosecutors around the state agree that everyone deserves a second chance – to an extent.

He pointed out that the two parts of the bill have very different procedures.

For instance, for a convict to have an arrest record sealed, the prosecutor must be given notice and can object to the factual components of the case during a hearing. Turner said this is important, for instance, if a prosecutor planned to re-file charges against a person.

But there are no notice or hearing requirements for sealing the conviction records – something Johnson disagrees with.

And Landis noted that to shield an old conviction, a convict must not have committed a felony since the original conviction. But there is no prohibition on misdemeanor convictions.

“That might have been an oversight,” he said. “They’ve taken five years to pass an expungement bill, so no, I would not say they rushed. Does it need some refinement? Yes.”

Noble Superior Court Judge Robert Kirsch said he would much prefer that the legislature give judges the authority to review a person’s record and modify felony convictions years later.

He tried to do so in a local drunken-driving case, but his ruling was recently reversed by the Indiana Supreme Court because no law existed to allow such action. [ILB: This was State v. Brunner (May 26, 2011), discussed earlier in this entry and summarized here.]

Kirsch especially dislikes the fact that the new law gives judges no discretion.

“It maybe goes too far – even basically giving a person the right to lie to an employer,” he said. “I don’t know if that’s the way we should be going.”

That legalization of perjury is what stopped several legislators from supporting the bill, including small-business owner Rep. Dan Leonard, R-Huntington.

“I’m entitled to know what that person’s background is. I don’t want to send someone with a theft conviction into someone’s home to deliver a sofa,” he said. “They chose to do wrong and they have to live with that. That may be coldhearted, but it’s how I feel.”

Comparison of pre-July 1, 2011 expungement law, and expansions made by HEA 1211, allowing certain arrest and conviction records to be "restricted." Prof. Schumm has prepared a useful comparison chart which he has permitted the ILB to post; access it here.

Posted by Marcia Oddi on Sunday, June 26, 2011
Posted to Ind. Sup.Ct. Decisions | Indiana Courts | Indiana Law

Ind. Gov't. - "Report: Indiana Toll Road operator may default"

Keith Benman had this story yesterday in the NWI Times.

Posted by Marcia Oddi on Sunday, June 26, 2011
Posted to Indiana Government

Ind. Gov't. - More on "Budget legislation codifies collective bargaining ban"

Updating this ILB entry from June 4th, Sandra Chapman of WTHR Ch. 13 reported June 24th in a story that began:

INDIANAPOLIS - Indiana state workers are learning how they get pay raises and promotions is about to change.

Almost 2,800 Hoosiers are on the state's payroll as full-time workers. But come July 1, employees in five different state agencies will have to prove they're qualified to retain some classified positions.

The new law passed back in the spring moves Indiana away from a 70-year-old system that simply required employees to meet basic hiring guidelines. The new message to state employees is that performance matters when it comes to promotions, layoffs and classified jobs.

State personnel put out letters and a video to explain the changes. It means state employees will be rated annually on their knowledge and skill levels.

The Indiana State Personnel Department's homepage now has information and a video on the new civil service system.

Posted by Marcia Oddi on Sunday, June 26, 2011
Posted to Indiana Government

Courts - "Drug Industry Wins In 2 Supreme Court Rulings"

NPR reporter Nina Totenberg had this story on last Thursday's two SCOTUS rulings on the drug industry. The intro:

The U.S. Supreme Court handed the pharmaceutical industry two major victories on Thursday. In one case, the court struck down a Vermont law that barred the buying, selling and profiling of doctors' prescription records. And in the second, the court ruled the makers of generic drugs are immune from state lawsuits for failure to warn consumers about possible side effects as long as they copy the warnings on brand-name drugs.
More on the decisions:

Posted by Marcia Oddi on Sunday, June 26, 2011
Posted to Courts in general

Courts - End of term discussion with Paul Clement, Walter Dellinger and Dahlia Lithwick

Access the discussion on Slate; so far there are five parts. Here is the most recent.

Also interesting is this analysis of Davis v. U.S. by Lyle Denniston of SCOTUSblog on "the fading 'exclusionary rule.'"

Posted by Marcia Oddi on Sunday, June 26, 2011
Posted to Courts in general

Courts - SCOTUS newest confrontation clause opinion

"Supreme Court says defendants may confront lab analysts who prepare reports" is the headline of Robert Barnes story June 23rd in the Washington Post. Some quotes:

The constitutional guarantee that a defendant be able to confront his accusers means prosecutors must produce even the technicians involved in the specific laboratory tests used in his trial, the Supreme Court ruled Thursday.

In a case involving a drunken driver from New Mexico, a majority of the court reinforced its recent decisions that fortified the right of defendants to cross-examine witnesses, established in the Sixth Amendment. * * *

Ginsburg wrote Thursday’s opinion, which said defendant Donald Bullcoming should have had the opportunity to cross-examine the lab analyst who provided the main evidence in his trial: a lab report showing his high blood-alcohol level. New Mexico prosecutors instead had called another analyst who had no role in performing the specific test.

“The Sixth Amendment does not tolerate dispensing with confrontation simply because a court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination,” Ginsburg said. * * *

For years, the court allowed the testimony of an absent witness if the judge found the statements reliable. But in the 2004 case Crawford v. Washington , the court said that testimony from an absent witness can be accepted only if the witness is unavailable and if the defendant had an opportunity to cross-examine.

Five years later — over objections from four justices who said the requirement would grind the criminal justice system to a halt — the court ruled that even laboratory reports could not be admitted without, as Ginsburg put it, “a live witness competent to testify to the truth of the statements made in the report.”

Thursday’s case was about who the live witness should be.

Ginsburg said it should be the person who prepared the report. She rejected the finding of the New Mexico Supreme Court that the machine that calculated Bullcoming’s blood-alcohol level was his real accuser and that the technician who recorded its findings was a “mere scrivener.”

Lyle Denniston of SCOTUSblog has a long analysis with this beginning:
A closely divided Supreme Court on Thursday continued its pattern of restricting prosecutors’ use of out-of-court statements to get criminal convictions, ruling that a report of a crime lab is valid evidence only if the technician who did the testing or observed it — not a substitute witness — is called to the stand. But the main opinion, and a concurring opinion, labored at length to stress just how little the Court had decided. It was clear that the Justices who controlled the outcome had been put on the defensive by an aggressive dissent — typical in this line of cases.

Posted by Marcia Oddi on Sunday, June 26, 2011
Posted to Courts in general

Saturday, June 25, 2011

Law - "New York Allows Same-Sex Marriage, Becoming Largest State to Pass Law"

The law passed late last evening, and was signed into law by Gov. Cuomo. It takes effect in a month. Here is today's NY Times front page.

Here is the lead story, by Nicholas Confessore and Michael Barbaro. Some quotes:

ALBANY — Lawmakers voted late Friday to legalize same-sex marriage, making New York the largest state where gay and lesbian couples will be able to wed and giving the national gay-rights movement new momentum from the state where it was born. * * *

The legalization of same-sex marriage in the United States is a relatively recent goal of the gay-rights movement, but over the last few years, gay-rights organizers have placed it at the center of their agenda, steering money and muscle into dozens of state capitals in an often uphill effort to persuade lawmakers.

In New York, passage of the bill reflects rapidly evolving sentiment about same-sex unions. In 2004, according to a Quinnipiac poll, 37 percent of the state’s residents supported allowing same-sex couples to wed. This year, 58 percent of them did. Advocates moved aggressively this year to capitalize on that shift, flooding the district offices of wavering lawmakers with phone calls, e-mails and signed postcards from constituents who favored same-sex marriage, sometimes in bundles that numbered in the thousands.

Dozens more states have laws or constitutional amendments banning same-sex marriage. Many of them were approved in the past few years, as same-sex marriage moved to the front line of the culture war and politicians deployed the issue as a tool for energizing their base.

But New York could be a shift: It is now by far the largest state to grant legal recognition to same-sex weddings, and one that is home to a large, visible and politically influential gay community. Supporters of the measure described the victory in New York as especially symbolic — and poignant — because of its rich place in the history of gay rights: the movement’s foundational moment, in June 1969, was a riot against police inside the Stonewall Inn, a bar in the West Village.

A finance column today in the NYT, by Tara Siegel Bernard, is headed "How Gay Marriage Will Change Couples’ Financial Lives."

Text of the new law: Here is the web page for the new New York law, A08354, now signed as chap. 95.

Posted by Marcia Oddi on Saturday, June 25, 2011
Posted to General Law Related

Ind. Gov't. - More on: Charlie White decision now will be announced next Tuesday

Updating yesterday evening's post, Carrie Ritchie has a somewhat longer story in today's Indianapolis Star.

Posted by Marcia Oddi on Saturday, June 25, 2011
Posted to Indiana Government

Ind. Courts - Concluding "Life, Death and Insurance: Indiana's $15 Million Mystery "

The ILB has a long list of entries on this story, which first broke in the April 10, 2010 WSJournal.

Today the new IBJ, has a long $$$ story headed "Tomisue Hilbert settles suit over $15M policy." The intro:

Tomisue Hilbert quietly settled a 3-year-old lawsuit last month over whether a controversial life insurance policy issued in 2006 on her mother, Suzy Tomlinson, was valid, and whether the beneficiary of the policy, J.B. Carlson, committed fraud.
The story concludes: "U.S. District Court Judge Sarah Evans Barker signed off on the settlement May 25."

A search of the WSJ reveals no story yet on the May settlement.

Posted by Marcia Oddi on Saturday, June 25, 2011
Posted to Indiana Courts

Ind. Decisions - "In rapid succession, federal judges slam the brakes on major elements of Indiana's strict immigration and abortion laws"

If you don't read the paper version of the Indianapolis Star, you need to click here to see today's front-page.

The ILB posted the Planned Parenthood and immigration opinions last evening, here and here.

Heather Giller's updated PPIN story from this morning's Star is here. Some quotes:

Medicaid patients in Indiana again can visit Planned Parenthood after a federal judge Friday put on hold a law cutting off the health provider's funding.

U.S. District Judge Tanya Walton Pratt ruled that the de-funding law violates federal Medicaid rules and "will exact a devastating financial toll on PPIN and hinder its ability to continue serving patients' general health needs." * * *

Pratt also put on hold a provision of the law that would have taken effect July 1 requiring doctors to tell patients seeking abortions that a fetus can feel pain at 20 weeks or less. But she temporarily upheld a part of the law requiring doctors to tell patients that life begins at fertilization.

The injunction means the defunding and fetal pain measures cannot be enforced while she is hearing Planned Parenthood's legal challenge to the law.

Bryan Corbin, a spokesman for the attorney general's office, said the state likely will seek a review of Pratt's ruling by the federal appeals court in Chicago. * * *

The injunction only places a temporary hold on enforcement of the parts of the law challenged by Planned Parenthood. Both the state and Planned Parenthood will make legal arguments before Pratt about whether parts of the law should be thrown out or allowed to stand.

But Pratt's ruling is an ominous sign for the state's prospects in the larger court case.

Vic Ryckaert and Jon Murray reported the Star's story this morning on the immigration ruling. Some quotes:
U.S. District Judge Sarah Evans Barker on Friday issued an injunction blocking Indiana's new immigration law, saying the state overstepped its boundaries in the controversial statute that was to take effect July 1.

Calling the measure "seriously flawed," Barker sided with the American Civil Liberties Union of Indiana on the law's two main provisions: one barring the use of consular identification cards and another allowing the arrests of people whose immigration status is questionable.

In her order, Barker said the state failed in its attempt to wrest jurisdiction over immigration law from the federal government without running afoul of the U.S. Constitution and federal treaties.

"Insofar as Indiana's efforts to carve out such a permissible role, at least with regard to the two sections of the statute under review here, their results have proven to be seriously flawed and generally unsuccessful," she wrote.

The judge went so far as to describe the state's argument to keep the law as a "seemingly desperate effort to save it." * * *

In her ruling, Barker said the law violated the Constitution's due process and search and seizure provisions, as well as other protections, by allowing local police to arrest people whose immigration status has been questioned by federal authorities -- even if those authorities have determined that a person should be able to remain in the country.

She also said Indiana's immigration statute unlawfully usurped the federal government's authority by prohibiting the use of ID cards issued by foreign consulates -- noting the U.S. Treasury allows banks to accept them. * * *

The ACLU of Indiana did not challenge the portion of the state's law denying tax breaks to businesses that knowingly hire illegal immigrants.

The law's most controversial provisions -- including one requiring local police to investigate the immigration status of people stopped for broken taillights and other reasons -- were stripped before it won lawmakers' approval.

During the legislative session, Indiana Attorney General Greg Zoeller joined a group supporting an "Indiana Compact," which stated that immigration "is a federal policy issue between the U.S. government and other countries, not Indiana and other countries."

However, in a written statement Friday, Zoeller said Barker's ruling was an indictment of what he called the federal government's ineffective enforcement of immigration laws.

Posted by Marcia Oddi on Saturday, June 25, 2011
Posted to Ind Fed D.Ct. Decisions | Indiana Government | Indiana Law

Friday, June 24, 2011

Ind. Decisions - Indy Star stories on both the immigration and Planned Parenthood opinions

"Judge issues injunction on Indiana's immigration law" is here.

"Judge stays abortion law that defunded Planned Parenthood" is here.

Both rush stories this evening by Heather Gillers.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Injunction in immigration case also said to be out

Here it is, Judge Barker's 39-page preliminary injunction. Some quotes:

III. Balance of Harms

We have already found that Plaintiffs will suffer irreparable harm if a preliminary injunction does not issue. In contrast, Defendants will suffer minimal, if any, harm by allowing the status quo to be maintained pending a final determination in this matter, since these areas addressed by the new and soon to be enjoined state law will remain under federal controls and authority. Thus, the balance of harms weighs clearly in Plaintiffs’ favor.

IV. Public Interest

Plaintiffs have also established that a preliminary injunction is in the public interest. It is well-established under controlling Seventh Circuit law that “the public has a strong interest in the vindication of an individual’s constitutional rights ....” O’Brien v. Town of Caledonia, 748 F.2d 403, 408 (7th Cir. 1984). Additionally, as the Ninth Circuit recently recognized in the closely analogous case, United States v. Arizona, 2011 WL 1346945, at *19, it is clearly not in the public interest “‘to allow the state ... to violate the requirements of federal law .... In such circumstances, the interest of preserving the Supremacy Clause is paramount.’” Id. (quoting Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 852-53 (9th Cir. 2009)) (emphasis omitted). * * *

VI. Conclusion

For the foregoing reasons, we GRANT Plaintiffs’ Motion for Preliminary Injunction. Defendants are hereby PRELIMINARILY ENJOINED from enforcing the following sections of Senate Enrolled Act 590: Section 18, to be codified as Indiana Code § 34-28-8.2, and Section 19, which amends Indiana Code § 35-33-1-1(1), by adding new sections (a)(11)-(a)(13) until further order of this Court. Defendants are hereby further ordered to inform forthwith all the affected Indiana state governmental entities of this injunction.

IT IS SO ORDERED.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Judge's Pratt's 44-page ruling in Planned Parenthood

Here it is.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Zoeller's office to ask for rehearing in Barnes

Attorney General Zoeller stated on WRVT Ch. 6 tonight that his office would file for rehearing on Monday in the Barnes v. State case.

No video yet, maybe later.

Here is the most recent ILB entry on the ruling.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Ruling expected in Planned Parenthood within the next hour

Per WRTV Ch. 6 bulletin. Watch at 7 pm.

6:46 pm tweet:

hgillers Heather Gillers
Federal court just issued an injunction against parts of Indiana's infamous immigration law. #INLegis
6:46 WRTV - "Judge Hands Down Planned Parenthood Ruling: Indiana Must Restore Funding To PPIN " - story here:
A judge handed down a ruling for Planned Parenthood Indiana on Friday that could impact hundreds of Medicaid patients.

U.S. District Judge Tanya Walton Pratt said the motion to cut Medicaid funding to Planned Parenthood was "granted in part, and denied in part."

The ruling means that the state must restore funding to PPIN cannot take effect and that PPIN's request for monetary injuries was denied.

Will try to find opinion.

[Update at 7:46 pm] Actually, on rereading her tweets, I see that Heather caught them both, Planned Parenthood and immigration rulings.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Charlie White decision now will be announced next Tuesday

Carrie Ritchie has the story here on the IndyStar site. It begins:

The Indiana Recount Commission will determine Secretary of State Charlie White’s eligibility to hold office on Tuesday – two days sooner than planned. * * *

The commission will meet at 9 a.m. Tuesday to discuss the facts of the case and rule on the Democrats’ challenge. It was originally scheduled to announce its decision on Thursday.

Here, via the Commission's webpage, is the Tuesday agenda.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to Indiana Government

Ind. Decisions - "Electronic Arts Has Right to Refer to John Dillinger in Its Video Games"

Two SD Indiana decisions from last week, missed by the ILB but reported on and linked to today by Prof. Volokh at The Volokh Conspiracy ...

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Winfield town council case should prompt new state law;" Charlie White hearing

So writes the NWI Times in an editorial today:

The Winfield Town Council appears poised to boot Michael DeNormandie from the council, five months after he left the town. Finally.

DeNormandie hasn't lived in Winfield since late January, when he was evicted from a house he was renting from a fellow councilman.

DeNormandie has been absent for several meetings since then yet has continued to draw his $500 monthly paycheck from the town.

DeNormandie should have submitted his resignation as soon as it became apparent he could no longer serve the citizens of Winfield. Instead, he has left it up to the council to determine his fate.

It's clear from this situation that other communities facing a similar situation in the future will need clarification about what qualifies as residency and how soon a council member should be removed from office, and through what process.

Indiana Secretary of State Charlie White serves as an example that this problem is not limited to Winfield.

This week, White's case was before the Indiana Recount Commission, which is determining whether he was eligible to run for secretary of state. He also is awaiting trial on felony charges, some of which are related to voting in Fishers despite no longer living at the address for which he was registered to vote. White also is charged with a felony related to drawing a town paycheck despite being no longer eligible to serve on the Fishers Town Council. * * *

Don't let elected officials no longer eligible to to represent their constituents deprive residents of fair representation. When those officials move out, they should let the municipality move on. But if they don't resign, the council needs a procedure to force their removal from office.

As for the Charlie White hearing itself, held this week before the Indiana Recount Commission, Indiana Legislative Insight concludes in the edition ($$$) that will be out Monday:
The bottom line from the testimony: this is not a case of simply where White lived and when, but a complex quilt that will require the administrative panel to sort through assorted addresses; timelines; his intent, the practical elements of his life and lifestyle, and reality; and the letter of the law. Whatever the Commission ruling, you can expect an appeal, and White still faces criminal charges.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Involuntary Commitment of S.S., a 6-page opinion, Judge Kirsch writes:

S.S. appeals from the trial court’s order for her temporary commitment. Although S.S.’s commitment has already expired, she raises the following consolidated and restated issue for our review: whether the trial court lacked jurisdiction to preside over her commitment proceedings because the report following her emergency detention was filed after the period of her detention had ended, resulting in a violation of her due process rights from the ensuing infringement of her liberty interests. We affirm. * * *

We note that S.S. has failed to cite to any statutory authority for her contention that the timely filing of the report is a jurisdictional prerequisite. Indeed, there are strong reasons why the timely filing of the report is not jurisdictional. Should the trial court lose jurisdiction over the case, the detained person would be deprived of a forum in which to seek an order of release.

As for due process concerns, vis-à-vis S.S.’s liberty interests, Wishard’s failure to comply with the statutory time frame was de minimis with no resulting harm to S.S. Had the report been filed at the last moment prior to the end of S.S.’s detention period, she likewise would have had an extended period of detention during the statutorily-created, twenty-four-hour time frame in which the trial court must consider the report and act. Indiana Code section 12-26-2-1 provides that the right of a person to apply to an appropriate court for a writ of habeas corpus is not limited or restricted. Thus, a remedy for unlawful custody is available. However, in this situation, such an application would likely have been denied.

The report stated that S.S. was mentally ill and gravely disabled, thus S.S. was not entitled to be released. S.S. does not dispute the contents of the report. The probate court acted in a timely fashion upon receipt of the report, set the matter for hearing, and entered its order of temporary commitment within the time frame established by statute. Thus, there was no prejudice to S.S. As previously stated, we acknowledge the extreme importance and constitutional dimension of the liberty interests of detained persons, but also acknowledge that those interests must be balanced by consideration of the safety interests of the detained person and society

NFP civil opinions today (3):

In Joseph A. Taylor v. Mitch Daniels, et al. (NFP), a 5-page opinion brought by a pro se appellant, Judge Barnes writes:

Joseph Taylor appeals the trial court’s denial of his amended complaint. We reverse. * * *

Taylor argues that the trial court improperly denied his amended complaint. As an initial matter we observe that Taylor is proceeding pro se. As we have noted many times before, litigants who choose to proceed pro se will be held to the same rules of procedure as trained legal counsel and must be prepared to accept the consequences of their action. We also observe that Attorney General Zoeller gave his notice of non-involvement and has not filed an appellee’s brief on behalf of the Defendants. Under these circumstances, we do not undertake to develop an argument on the behalf of the Defendants, but rather may reverse upon Taylor’s prima facie showing of reversible error. In this context, “prima facie” is defined as at first sight, on first appearance, or on the face it. [cites omitted] * * *

In the absence of arguments by the Defendants as to why Taylor was not entitled to amend his complaint as a matter of course or why the amended complaint was subject to dismissal, Taylor has made a showing of prima facie error. Accordingly, we reverse the trial court’s denial of Taylor’s amended complaint.

Robert A. Hutchens v. BAC Home Loans Servicing (NFP)

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

NFP criminal opinions today (7):

Lee Kershaw v. State of Indiana (NFP)

Fernando B. Eguia, Sr. v. State of Indiana (NFP)

Timothy L. Woods v. State of Indiana (NFP)

Elijah Roberson v. State of Indiana (NFP)

Terry Allen Wagster v. State of Indiana (NFP)

Jomisha Williams v. State of Indiana (NFP)

Aaron Shields v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to Ind. App.Ct. Decisions

Law - Legal ethics and Watergate, taught by John Dean

Ameet Sachdev of the Chicago Law column in the Chicago Tribune has a fascinating story today - a quote:

Dean's misconduct during the cover-up and the ethical lapses of many lawyers involved in the nation's greatest political scandal sparked reforms in professional conduct that reached down into law schools. Nearly 40 years after the Watergate break-in, the crimes still present sobering lessons.

Dean's ethics seminars, which he kicked off last week in Chicago, are part history and part morality play. He plays tapes of conversations from the Oval Office that Richard Nixon had secretly recorded, shows snippets from his testimony before the Senate Watergate Committee in June 1973 and displays some of his handwritten notes.

The dramatic story drives home Dean's message that lawyers today have more leverage to report wrongdoing because of changes in the law and in lawyer conduct rules since Watergate. He said he believes the rule changes are so powerful that history would have been different had they existed in 1972.

Few individuals can provide such a compelling example of how people slip into crime and fraud.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to General Law Related

Law - This may be a "must read" for practitioners

"How to Lose a Case With Simple Computer Cluelessness " is the heading of this post on Above the Law, written by Christopher Danzig.

Also see the more detailed linked article headed "4th Circuit Rules Computer Oversight Not 'Excusable Neglect'," by Francis J. Lawall and James C. Carnigan.

ILB: This reminds me in some ways of stories a few years back of attorneys who mistakenly believed they had redacted provisions in PDF documents. See, eg this entry from May 28, 2008.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to General Law Related

Ind. Gov't. - "Not allowed to ban guns, library sets down limits"

Faced with the fact that SEA 292 goes into effect next Friday, July 1st, what is a library to do? Vivian Sade has this story today in the Fort Wayne Journal Gazette highlighting some of the concerns:

A new state law that strips local government of its ability to ban guns at public places has had Allen County Public Library officials scratching their heads.

On Thursday, the library’s board of directors agreed to modify the libraries’ code of conduct concerning firearms in hopes of thwarting any potential problems.

The law pre-empts local firearm regulations, and city and county governments can no longer regulate in any matter involving carrying, possessing or transporting firearms or ammunition. That includes such places as libraries, museums or parks.

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

Effective immediately, patrons may bring a handgun onto library property or into a library, but only if they provide a valid permit. Any person carrying firearms must provide proof of license upon request to library personnel.

“This new policy sends a message that while guns can no longer be banned from the library, certain standards of behavior will not be tolerated,” said Jeffrey Krull, director of the Allen County Public Library.

The firearms must be secured to prevent potential injury or serious bodily harm to others, and no one will be allowed to point, brandish or display a firearm in any manner intended to threaten, according to the revised policy.

A separate policy states that staff members may not carry firearms in the library or on library property unless authorized to do so. And any firearms brought onto library property by staff members must be stored in a locked vehicle out of public view, according to the policy.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to Indiana Government

Ind. Decisions - "Elmhurst’s closure affirmed by court"

The COA's opinion yesterday in Save Our School: Elmhurst High School v. Fort Wayne Community Schools, et al. (ILB summary here) is the subject of a story today by Devon Haynie of the Fort Wayne Journal Gazette. A quote:

The Indiana Court of Appeals on Thursday ruled in favor of Fort Wayne Community Schools, affirming a trial court’s decision to dismiss a lawsuit over the closure of Elmhurst High School.

In its ruling, the appellate court said the plaintiff’s arguments were negated by an earlier Indiana Supreme Court decision that the Indiana Constitution does not require government to achieve any standard of educational quality.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to Ind. App.Ct. Decisions

Courts - "High court sides with defendant in Louisville crack cocaine case"

Yesterday's SCOTUS opinion in Freeman v. U.S. is the subject of this long story today in the Louisville Courier Journal, reported by Andrew Wolfson. It begins:

The U.S. Supreme Court ruled Thursday in a Louisville case that crack cocaine offenders sentenced under binding plea bargains have a right to try to reduce their sentences under new guidelines designed to lessen the disparity between penalties for crack and powder cocaine.

In a 5-4 decision, the court said that William Freeman, who agreed in 2005 to serve 106 months in prison for possessing about three grams of cocaine and a firearm, should be able to take advantage of the guidelines adopted two years later that reduced sentences for crack.

The guidelines were changed in 2007 after criticism that harsher sentences for crack disproportionately punished African Americans.

More than 16,000 offenders, including roughly 300 in Kentucky and 100 in Southern Indiana, already have had their sentences reduced by an average of 26 months.

But U.S. District Judge Edward Johnstone and the 6th Circuit Court of Appeals had ruled that offenders such as Freeman, who agreed to plea bargains in which the proposed sentence was binding on a judge, couldn't take advantage of the new guidelines because their sentences weren't based on them.

The Supreme Court, divided along ideological lines, reversed those decisions.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to Courts in general

Ind. Courts - More on: Daniel Wilkes sentencing retrial ...

Updating this ILB entry from June 22nd, the appeal hearing of Daniel Ray Wilkes’ death sentence continues in Evansville and Mark Wilson's coverage in the Evansville Courier & Press is worth following. The June 22nd entry gives the background.

The next story is here, filed by Wilson late Wednesday afternoon, headed "Family, friends detail Wilkes' tough childhood as killer's trial scrutinized." It concludes:

The attorneys have also argued his sentencing should be reexamined in light of the original jury’s inability to reach a conclusion on the death penalty. Steven Schutte, a state deputy public defender, said the jury at the time failed to reach a unanimous decision on what sentence to recommend, deadlocked by an 11 to 1 vote in favor of a life sentence.

With no recommendation, state law required Heldt to decide Wilkes’ sentence but prohibited him from considering the how the jury was deadlocked when making his decision, Schutte said. However, he said the Indiana Supreme Court - which upheld an appeal of Wilkes’ death sentence - has since reversed that prohibition, making it acceptable for Heldt to now consider it.

The most recent story, posted late yesterday, is headed "Attorneys say hold-out juror in Wilkes trial wasn't questioned," reports:
EVANSVILLE — The lone juror at Daniel Ray Wilkes 2007 murder trial who held out to sentence him to death and refused to join with other jurors who preferred a sentence of life in prison was never questioned by defense attorneys during jury selection. * * *

Indianapolis attorney Monica Foster, an expert in defending death penalty cases, testified during an appeal hearing in Vanderburgh Circuit Court that Wilkes' defenders at his 2007 trial failed to bring the lack of questioning of the juror to Heldt's attention.

The same juror also did not answer some questions on a questionnaire for prospective jurors at the time, Foster said, describing that as a red flag that would normally cause defense attorneys to question them on those issues during jury selection.

Foster testified Wilkes' attorneys Barbara Williams and Kurt Schnepper did not raise the issue with Heldt. The juror was later deposed by attorneys for the Indiana Public Defender's Office and gave testimony that Foster said as defense attorney she would have found troubling.

Her testimony was part of witnesses and evidence state public defenders presented to Heldt to raise issues they believe were not raised at trial. Heldt will decide if the information is enough to cause a retrial, modify Wilkes' death sentence or hold a new sentencing hearing.

He has an Aug. 12 deadline to make ruling and his decision can be appealed to the Indiana Supreme Court and then to federal court, said Steven Schutte, a state deputy public defender.

Foster, who trains other attorneys in defending death penalty cases, said it was her opinion after reading the trial transcript and reviewing defense documents that Wilkes' defense team failed to defend him adequately throughout the trial, including jury selection and sentencing.

She said their failure to raise the juror issue at the time prevented it from being used later in Wilkes' direct appeal. That appeal was denied by the Indiana Supreme Court and the U.S. Supreme Court refused to hear it.

Schutte presented witnesses from police reports and evidence this week placing Claspell and her daughters alive after prosecutors and police said they had been killed and Wilkes in Bloomington, Ind., at that time. At the same time police interviewed a suspicious person in the neighborhood who had allegedly gone there unsuccessfully looking for Wilkes and another man.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to Indiana Courts

Law - "Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies"

That is the title of a post this morning at Sentencing Law blog, citing a report by the same name from the Justice Policy Institute that:

examines how private prison companies are able to wield influence over legislators and criminal justice policy, ultimately resulting in harsher criminal justice policies and the incarceration of more people. The report notes a “triangle of influence” built on campaign contributions, lobbying and relationships with current and former elected and appointed officials. Through this strategy, private prison companies have gained access to local, state, and federal policymakers and have back-channel influence to pass legislation that puts more people behind bars, adds to private prison populations and generates tremendous profits at U.S. taxpayers’ expense.
Interesting implications for sentencing reform ...

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to General Law Related

About this blog - Yes, the ILB is repeating yesterday's plea for support!

This is a very good time to become an ILB annual supporter, as the next quarter begins a week from now. Act today, your firm could join this list of valued ILB supporters!

Here is a copy of the ILB Supporter Agreement that you may fill out and mail.

--------------------------

What if you'd prefer to send an anonymous individual donation (i.e. not be identified on the ILB) from time to time, rather than making an annual commitment? A handful of you have done that, and I really appreciate the support.

To do so, simply make your check out to Environmental Information Solutions and mail it to 1319 N. Alabama St., Indianapolis 46202-2523. [Sorry, we are not 501(c)(3).] Include your email if you'd like an acknowledgment of receipt and a thanks.

Posted by Marcia Oddi on Friday, June 24, 2011
Posted to About the Indiana Law Blog

Thursday, June 23, 2011

Ind. Decisions - Supreme Court posts two more opinions

In In re Subpoena to Crisis Connection, Inc. v. Ronald K. Fromme, a 17-page, 5-0 opinion, Justice Sullivan writes:

Ronald Keith Fromme, a defendant in a child molesting prosecution, contends that he has a constitutional right to inspect the records of a nongovernmental counseling agency, notwithstanding the General Assembly's enactment of a "victim advocate privilege" shielding such records from discovery. Because neither the Due Process Clause nor the Sixth Amendment re-quires disclosure of information protected by this privilege in the present case, we enforce the victim advocate privilege as enacted. * * *

After being charged with two counts of child molesting, Fromme asked the Dubois Circuit Court to require Crisis Connection to provide him with all records in its possession relating to the alleged victims, M.Y. and D.Y., and their mother. Crisis Connection argued that Indiana's "victim advocate privilege," codified at IC 35-37-6-9, gave it authority to refuse record requests in such circumstances. The court ordered Crisis Connection to deliver the records to the court for its in camera review to determine their relevance before turning them over to Fromme.

Before proceeding further, the court agreed to Crisis Connection‘s request that its decision be reviewed by the Court of Appeals. State v. Fromme (In re Subpoena to Crisis Connection, Inc.), 930 N.E.2d 1169, 1172 (Ind. Ct. App.), aff‘d on reh‘g, 933 N.E.2d 915 (Ind. Ct. App. 2010). That court concluded that "[t]he interest in privacy asserted by Crisis Connection, while important, [was] not strong enough to bar an in camera review of its records." * * *

The Court of Appeals did not grant Fromme's request that Crisis Connection's records be provided directly to him. But the court did hold that they should be turned over to the trial court for determining the records to which Fromme was entitled. In re Subpoena to Crisis Connection, 930 N.E.2d at 1190. The court‘s decision was grounded in Fromme having met a three-step test we have established for the discoverability of records by a criminal defendant in certain circumstances: (1) there must be sufficient designation of the items sought to be discovered (particularity); (2) the requested items must be material to the defense (relevance or materiality); and (3) if the first two requirements are met, the trial court must grant the request unless there is a showing of "paramount interest" in nondisclosure. [cites omitted]

In another case handed down today, Crawford v. State, No. 49S05-1106-CR-370, — N.E.2d — (Ind. 2011), we apply this test to determine the discoverability of information not protected by privilege. But this test is not reached when the question is the discoverability of information that is otherwise privileged. The General Assembly has made this information off-limits and we are compelled to uphold its decision unless it violates the Constitution. * * *

In sum, by providing a complete ban to disclosure in cases like the present one, Indiana's victim advocate privilege advances the State's compelling interest in maintaining the confidentiality of information gathered in the course of serving emotional and psychological needs of victims of domestic violence and sexual abuse. For the reasons stated above, this interest is not outweighed by Fromme's right to present a complete defense. Accordingly, Fromme does not have a constitutional right to an in camera review of Crisis Connection's records. In the absence of a violation of Fromme's constitutional rights, we apply the victim advocate privilege as provided by the General Assembly.

We reverse the order of the trial court and remand for proceedings consistent with this opinion.

In Lamar M. Crawford v. State of Indiana, a 6-page opinion, Justice Sullivan writes:
In In re Subpoena to Crisis Connection, Inc., No. 19S05-1012-CR-678, — N.E.2d — (Ind. 2011), another case handed down today, we hold that the three-step test for the discoverability of information outlined in State v. Cline (In re WTHR-TV), 693 N.E.2d 1, 6 (Ind. 1998), is not reached when information is protected by an unqualified privilege unless a criminal defendant's constitutional rights would be violated by enforcing the privilege. Because no privilege is at issue in this case, we apply the three-step test and conclude that the defendant has not satisfied the requirements for the discoverability of the information he seeks. * * *

Although we understand why Crawford might want this information, we agree with the lower courts that he has failed to state with reasonable particularity what he wants. He seeks "footage of any and all statements of [IMPD] officers, agents, or affiliates" and "footage of any-one interviewed or questioned . . . in connection with the investigation of the death of [the murder victim]." Arguably, he requests something more particular than "give me everything related to the case," but he is still basically asking for anything anyone has ever said to Lucky Shift with regard to this case. We see no real difference between the two. In each of the challenged requests, Crawford does not state with reasonable particularity what footage or statements or interviews he seeks – he is merely fishing for it. But, as we have noted, "discovery rights do not entitle a criminal defendant to commandeer the efforts of third parties as a substitute for independent defense investigation." WTHR-TV v. Milam, 690 N.E.2d 1174, 1176 (Ind. 1998). * * *

Crawford's requests were not made with sufficient particularity. We therefore affirm the judgment of the trial court.

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues order in Barnes rehearing

The Supreme Court has at about 3:00 pm today issued an order granting the professors' whose amicus brief was filed via "rotunda filing" as described in the ILB entry earlier today leave to appear as amici curiae. From the order:

Proposed Amici Curiae are substantively aligned with Appellant, Richard L. Barnes, who filed a petition for rehearing on June 9, 2011. Proposed Amici tendered their brief on June 13,2011, within the time limit specified by Appellate Rule 41. Their motion for leave to file the brief, however, was filed belatedly on June 23,2011, due to an oversight.

Being duly advised, the Court GRANTS the motion and permits the named Amici Curiae to appear and file a brief. The Clerk is directed to show the "Brief of John Wesley Hall ... As Amici Curiae In Support Of Appellant's Petition For Rehearing" as being filed on June 13,2011.

Appellee, State of Indiana, has until Monday, June 27,2011, to file a brief in response to Appellant's petition for rehearing. Presumably, the State was served with a copy of this amici curiae brief on or about June 13; therefore, it should be able to include a reply to the amici curiae brief, if any, in its response brief if one is filed. The Court discourages the duplication of arguments already briefed by the patiies and encourages any opposing party to respond only to any new arguments or issues raised in the amici curiae brief.

Here is a link to this second amicus brief.

See also this June 20th ILB entry headed "The State has until Monday, June 27 to file a response brief to the petition for rehearing in Barnes v. State." In the event the State does file a response (which the ILB anticipates), the State has a lot it might wish to respond to: Barnes' three issues, the legislative amicus (self-defense statute and public policy), and the law professors' lengthy amicus.

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Settlement offer is on the table in 8-year-old courthouse project legal fight"

That is the headline to this long "breaking news" story posted by Nick Schneider, Assistant Editor, on the Greene County Daily World webpage. The story begins:

The more than eight-year legal battle by the county to recover damages associated with the Greene County Courthouse addition/renovation project may be over soon.

A joint meeting of the County Commissioners, County Council and Building Corporation is scheduled for 4 p.m. on Monday [ILB: June 27th] to consider a settlement agreement resolving all claims in the county's civil suit against United Consulting Engineers and others that is pending in Owen Circuit Court.

Before the public meeting, the three governmental bodies will meet in a joint executive session at 3 p.m. where legal advisors will spell out the details of the settlement proposal. * * *

The seven-count, 25-page lawsuit was originally filed Dec. 30, 2004 in Greene Circuit Court on behalf of the county commissioners and building corporation against United Consulting Engineers, Inc., Indianapolis; architects DLZ Indiana, LLC, Indianapolis; and general contractors Weddle Brothers Construction, Co., of Bloomington.

The ILB has a number of earlier entries, including a link to this still-available story from July 27, 2009, headed "Greene County Courthouse lawsuit tops $1 million in legal fees and counting."

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to Indiana Courts

Law - Much about redistricting

The NY Times has had a recent, two-part piece on redistricting in Nate Silver's FiveThirtyEight column - here is the intro and links:

The following is an edited transcript of an interview with David Wasserman, the House editor of The Cook Political Report. Mr. Wasserman is Cook’s resident redistricting expert and the author of “Better Know a District,” the The Cook Political Report’s 2012 redistricting outlook. (Readers might also want to check out Cook’s redistricting scorecard for background).

We will post the conversation in two parts, this being Part 1, which focuses on the more general aspects of redistricting. Part 2 will focus on more granular details at the state and local level. The interview was conducted by Nate Silver and Micah Cohen.

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to General Law Related

Ind. Courts - Judges Association looking for nominations for annual award

Here is the press release. It begins:

The Indiana Judges Association is accepting nominations for the 2011 Commendation for Excellence in Public Information and Education. Each year the Association honors a judge and a journalist who have helped inform the public about the work of the Indiana courts. The deadline for applications is Friday, July 29, 2011.

The application forms are available online. There are two award categories, one for journalists and one for judges. The Community Relations Committee of the Indiana Judicial Conference selects the award recipients. Incoming Indiana Judges Association President, Marion County Judge Robyn Moberly, explained, “Courts deal with complex issues that are not always easy to explain. The Association is pleased to honor a journalist and a judge for their work helping convey what is happening in courts across our state.”

Nominees are judged on breadth and depth of the effort, quality, ingenuity and public response. The committee is looking for television, newspaper, radio and Internet journalists or news organizations that have exhibited responsible reporting of Indiana courts. The committee is also looking for judges who have conducted programs, projects or sustained efforts to educate the public about the courts.

The Indiana Judges Association has given the awards since 1988. The 2010 recipients were Judge Allen Wheat of Steuben Circuit Court for his educational video titled "Think Before You Drive," which showed a mock drunk driving trial from arrest to conviction; and Marianne Holland of Indiana Public Broadcasting for her reporting on the Indiana Supreme Court and the retirement of Justice Theodore Boehm.

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to Indiana Courts

Ind. Decisions - Two today from the Supreme Court

In J.M. v. M.A., et al., a 5-page, 5-0 opinion, Chief Justice Shepard writes:

About a decade after J.M. signed a paternity affidavit, the State sought a support order on behalf of the child’s mother. In the course of this proceeding, the trial court denied J.M.’s motion to set aside the paternity affidavit, holding his absence at a previous child support hearing ratified his signing of the affidavit. We reverse the trial court’s decision as to paternity and remand this case to give J.M. the opportunity, as agreed to by the parties at oral argument, to challenge the paternity affidavit in the manner outlined in our Code. * * *

J.M.’s petition alleged facts that if formally proven could establish that a material mistake of fact might have existed at the time he executed the paternity affidavit. He stated he signed the affidavit under a belief that he was doing so to enable a guardianship to be established. He further alleged he was a minor who acted without legal assistance. (App. at 15.) The trial court’s ruling that J.M.’s failure to appear at the child support hearing ratified the affidavit was incorrect. When counsel for J.M. was responding to the court’s question about the plain language of the affidavit that J.M. was a minor and was not highly educated, the presiding commissioner replied: “Guess he should’ve shown up at the hearing that was set,” referring to the initial support hearing. (Tr. at 6.) It was characteristic of the commissioner’s demeanor.

The Court of Appeals held that because the mother testified that J.M. was not W.H.’s biological father, and the State conceded at oral argument that J.M. is not the father, a remand for genetic testing is unnecessary. J.M.,928 N.E.2d at 236. The statutes on this point are, however, explicit that in order for a court to rescind a paternity affidavit, paternity testing must exclude the man as the biological father. The parties’ words or agreement amongst the parties cannot supplant the statutory requirements. * * *

We deem the order of default to affect only the child support proceeding and order. We reverse the denial of J.M.’s motion to set aside and remand so that J.M. may be heard on his request to rescind the paternity determination in a manner that complies with the Indiana Code.

In Elmer D. Baker v. State of Indiana, a 13-page, 5-0 opinion, Justice Rucker writes:
After a conviction for three counts of child molesting the defendant appealed contending, among other things, that his convictions must be vacated because they were not the product of a unanimous jury verdict. We granted transfer to explore this issue. * * *

Baker appealed framing his contentions as follows: (1) the convictions are not sustained by evidence of jury unanimity, * * *
We granted transfer to explore Baker's jury unanimity claim. In all other respects we summarily affirm the opinion of the Court of Appeals. See Indiana Appellate Rule 58(A)(2). * * *

We find it useful to review a few scenarios, each with some relevance to the case before us, in which the issue of jury unanimity commonly arises in child sex offense cases. * * *

In this case Baker contends that his three child molest convictions must be vacated because “the record provides no basis for a finding of jury unanimity for the verdict on any of those counts.” Essentially Baker complains that although he was charged with one count of child molesting with respect to each alleged victim, the jury heard evidence of multiple acts of molestation concerning each alleged victim. Thus, according to Baker, “[n]o one can read the record and have the slightest basis for saying that any of the verdicts were reached by twelve jurors all agreeing as to a particular incident.” Br. of Appellant at 35. In essence he complains that some jurors may have relied on different evidence than the other jurors to convict on each of the three counts. * * *

It is clear that the foregoing instruction did not advise the jury that in order to convict Baker the jury must either unanimously agree that he committed the same act or acts or that he committed all of the acts described by the victim and included within the time period charged. However, Baker neither objected to the trial court's instruction nor offered an instruction of his own. This issue is waived. * * * We will review an issue that was waived at trial if we find fundamental error occurred. * * *

We conclude Baker has not demonstrated that the instruction error in this case so prejudiced him that he was denied a fair trial.

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Two interesting state finance stories today [Updated]

The first is from Stateline and does not use Indiana to illustrate any of the gimmicks detailed in "Budget gimmicks explained: five ways states hide deficits." The reporter is Josh Goodman.

The second
is a lengthy, front-page story from today's NY Times, titled "The Indiana Exception? Yes, but...." The reporters are Michael Powell and Monica Davey. After an introduction that you won't want to miss, the very long story continues:

But Indiana is no world apart, even if Mr. Daniels would like to suggest it is. Large cracks have opened in its economic foundation, a sign of just how severe the downturn remains.

Mr. Daniels alone cannot take all credit or shoulder blame for the health of Indiana’s economy. But it is his work here — and his reputation as a cost-cutting, tough-on-labor conservative obsessed with fiscal problems — that fueled interest in his presidential ambitions before he announced that he would not run because of family considerations.

The state also serves as a case study of the often large tradeoffs required to balance the books when political leaders take the possibility of raising income taxes off the table. Fiscal conservatism, in other words, comes with its own costs. * * *

But Indiana is no world apart, even if Mr. Daniels would like to suggest it is. Large cracks have opened in its economic foundation, a sign of just how severe the downturn remains.

Mr. Daniels alone cannot take all credit or shoulder blame for the health of Indiana’s economy. But it is his work here — and his reputation as a cost-cutting, tough-on-labor conservative obsessed with fiscal problems — that fueled interest in his presidential ambitions before he announced that he would not run because of family considerations.

The state also serves as a case study of the often large tradeoffs required to balance the books when political leaders take the possibility of raising income taxes off the table. Fiscal conservatism, in other words, comes with its own costs.

[Updated on June 24th] Here is another, "Panel to Scrutinize Causes Behind Weak State Budgets."

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In Save Our School: Elmhurst High School v. Fort Wayne Community Schools, et al. , a 15-page opinion, Judge Barnes writes:

Save Our School: Elmhurst High School (“SOS”) appeals the trial court's granting of the motion to dismiss SOS's complaint filed by Fort Wayne Community Schools and the Fort Wayne Community Schools Board of School Trustees (collectively “FWCS”). We affirm.

The restated issues before us are: I. whether FWCS's decision to close Elmhurst High School (“Elmhurst”) is an action subject to judicial review as potentially violating the Indiana Constitution; and II. whether that decision is subject to judicial review as an allegedly arbitrary and capricious governmental agency action. * * *

SOS has failed to state a claim that it is entitled to relief for either a violation of the Indiana Constitution by FWCS or under a theory of a “common law” right to judicial review of FWCS's decision to close Elmhurst. We affirm the trial court's granting of FWCS's motion to dismiss. Affirmed.

DARDEN, J., concurs.
RILEY, J., concurs in result with separate opinion. [which begins, at p. 14 of 15] Although I agree with the majority's decision to affirm the trial court's motion to dismiss, I respectfully disagree with the majority's analysis. Whereas the majority embarks on a lengthy constitutional evaluation, I would declare SOS's appeal to be moot. Regardless of the outcome, it is clear that no effective relief can be rendered to the parties.

In Mickey Cundiff v. State of Indiana, a 9-page opinion, Judge Mathias writes:
Mickey Cundiff (“Cundiff”) was convicted of Class D felony operating a vehicle while intoxicated. He appeals his conviction raising only the following argument: whether the trial court erred when it denied his Criminal Rule 4(B) motion for discharge. Concluding that Cundiff was not entitled to a speedy trial pursuant to Criminal Rule 4(B) despite his incarceration on an unrelated cause, we affirm. * * *

In this case, Cundiff was incarcerated for a probation violation in a separate cause and possibly a battery charge, but Cundiff was not incarcerated on the pending charges because he had been released on his own recognizance. See Tr. pp. 21, 24-25. For this reason, we conclude that the Criminal Rule 4(B) seventy-day deadline does not apply to the circumstances presented in this appeal. And therefore trial court did not err when it denied Cundiff's motion for discharge.

NFP civil opinions today (6):

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

James Hatala v. Sally Hatala (NFP)

SB Hospitality, LLC, et al. v. R.S. Elliott Specialty Supply, Inc. (NFP)

KJE, LLC v. RAC Holdings, Inc., and Rex Carroll (NFP)

Term. of Parent-Child Rel. of Z.E., et al.; S.E. v. IDCS (NFP)

Paternity of T.F.; D.F. v. J.W. (NFP)

NFP criminal opinions today (5):

Elliott McKinley Montgomery v. State of Indiana (NFP)

Ryan T. McMullen v. State of Indiana (NFP)

Jack Edwards, Jr. v. State of Indiana (NFP)

Robert M. Richardson v. State of Indiana (NFP)

Robert L. Frank, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana decision today from 7th Circuit, a mea culpa

Corcoran v. Wilson (ND Ind., Sharp), is a 6-page per curiam opinion:

This habeas case returns to us from the Supreme Court for a second time. See Wilson v. Corcoran, 131 S. Ct. 13 (2010); Corcoran v. Levenhagen, 130 S. Ct. 8 (2009). Joseph Corcoran’s capital case has a complex history in state and federal court, which we set forth more completely in our two prior opinions, see Corcoran v. Levenhagen, 593 F.3d 547 (7th Cir. 2010), and Corcoran v. Buss, 551 F.3d 703 (7th Cir. 2008), and will repeat here only as necessary to correct the mistakes the Supreme Court has identified and get the case back on track. * * *

On remand we made two critical misjudgments—one procedural, one substantive. The procedural mistake was our decision to take up Corcoran’s remaining challenges ourselves, without further appellate briefing, rather than sending the case back to the district court so the previously unaddressed claims could be fully adjudicated there. This procedural misstep led to a substantive error, which the Supreme Court identified in its second decision. Although we rejected most of Corcoran’s remaining claims for relief, we ordered the issuance of a habeas writ based on what we said was a violation of Indiana’s death-sentencing law, without finding that this error of state law amounted to a violation of a federal right. Corcoran v. Levenhagen, 593 F.3d at 551-52, 555. The Supreme Court reminded us that “[f]ederal courts may not issue writs of habeas corpus to state prisoners whose confinement does not violate federal law.” Wilson v. Corcoran, 131 S. Ct. at 14; see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state court determinations on state-law questions.”), and id. at 75 (noting that a state-law evidentiary or instructional error may be grounds for federal habeas relief only if the error “so infused the trial with unfairness as to deny due process of law” (internal quotation marks omitted)). The Court again granted certiorari, vacated our judgment, and remanded for further proceedings, expressing “no view about the merits of the habeas petition.” Wilson v. Corcoran, 131 S. Ct. at 17.

In hindsight we should have returned the case to the district court after the first remand from the Supreme Court. We do so now. This will permit the parties to fully air Corcoran’s remaining habeas claims and allow the district court to address them in the first instance. We note, however, that neither of the Supreme Court’s decisions casts doubt on our resolution of the issues raised in the initial appeal, in which we found no basis for habeas relief on the claimed Sixth Amendment violation or on the issue of Corcoran’s competency to waive post-conviction remedies. In his Circuit Rule 54 statement, Corcoran addresses only his remaining claims, not these two; he asks for a remand so that the district court can adjudicate the previously unaddressed grounds for habeas relief.

Accordingly, we REINSTATE and incorporate by reference our earlier opinion in Corcoran v. Buss, 551 F.3d 703, to the extent that it (1) reversed the district court’s judgment granting habeas relief on the basis of the claimed Sixth Amendment violation; and (2) affirmed the district court’s conclusion that the Indiana courts did not mishandle the issue of Corcoran’s competence to waive post-conviction remedies. As we have noted, Judge Williams joined the panel in rejecting Corcoran’s Sixth Amendment claim but filed a dissent on the competency issue, see id. at 714-18, which we also reinstate and incorporate herein by reference. We REMAND the case to the district court to permit it to address Corcoran’s remaining grounds for habeas relief.

Here is a list of ILB entries on the Corcoran case.

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Still more on: Supreme Court adds new Evidence Rule 617

Updating this ILB entry from Sept. 16, 2009, Thomas P. Sullivan, a partner at Jenner & Block LLP in Chicago, who was the U.S. Attorney for the Northern District of Illinois from July 1977 to April 1981, has a long post titled "Recording Makes Sense" on MainJustice. It begins:

The opposition of Department of Justice officials toward requiring electronic recordings of interviews of felony suspects is extremely puzzling.

They are well aware of the widespread agreement among state police, sheriffs and prosecutors, based on years of experience, that electronic recording of suspect interviews is a tremendous boon to law enforcement. What then seems to be the problem with the ranking DOJ officials, who usually lead in the use of the newest and best law enforcement tactics? Why do top DOJ officials persist in opposing electronic recordings?

To put this discussion into perspective, I will first explain the process, then recount the experiences of a vast number of state law enforcement agencies, and finally take a critical look at the DOJ position.

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to Indiana Courts

Courts - SCOTUS issuing more opinions today

Thanks again to SCOTUSblog for providing the info below:

Amy: Just to recap: We are expecting opinions today (no orders). Monday we are expecting both orders and opinions. The Court is not currently scheduled to sit -- i.e., release opinions -- after Monday, although that could change.

Amy: If Monday is the last day for opinions, then we will know what we should be getting. Today is anyone's guess.

Bullcoming v. NM, a confrontation clause case, the Court reverses the NM Supreme Court, 5-4. Casepage.

Amy: The Court is split: The Confrontation Clause does not permit the prosecution to introduce a forensic lab report containing a testimonial certification through the in-court testimony of an analyst who did not sign the document or personally observe the test.

In CSX v. McBride, 7th Circuit affirmed. 5-4 vote. RR case.

Amy: We have the decision in Stern v. Marshall. This is the Anna Nicole Smith bankruptcy case. Case page.

Amy: Anna Nicole's estate does not get the $88 million.

Amy: That's all for today. So for those of you keeping score at home, that means that we should have violent video games, the personal jurisdiction cases, and campaign finance on Monday morning at 10 am.

ILB: Six opinions in all today, check SCOTUSblog for the others.

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to Courts in general

Ind. Courts - Extra info about Rotunda Filing in Indiana

IU Prof. Eric Rasmusen sends along this blog entry (see the original here):

This is a quickie webpage with some extra info about Rotunda Filing in Indiana. That's the process for filing legal papers after hours with the Indiana Supreme Court. I have done it only once, but I did it having to drive up from Bloomington, and I got my form time-stamped with only ten minutes to spare before midnight (an amicus brief in Barnes v. Indiana, the case that criminalized reasonable resistance to unlawful police entry). I would have liked to see some info like this in advance, for peace of mind and possible shaving of minutes, even though everything did work out like clockwork.

You need to go to the east side of the Statehouse in Indianapolis. I parked a block away on Washington Street, metered parking which was plentiful and free at 11:50pm on a Monday night. I walked up the grand steps to the big entrance door, which was kept ajar. Once inside, turn left and the drop box is about ten feet away, with a desk lamp kept on. There is a stack of forms in duplicate to fill out and attach to the original of your document (not the copies) . Pen and stapler are provided. You turn your form sideways and put it into the timeclock slot, which stamps the time on it. The instructions are clearly written-- it's a very nice set-up. Then you drop your papers into something like a library book return. No boxes allowed-- just papers.

No person was there; not even a security guard (though I am sure they are around somewhere--- and I read that there is a security camera (which, by the way, would verify your presence at the claimed hour, so don't be tempted to cheat).

More information is available here, on the Clerk's FAQ page, and here, under "Filing Facts."

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to Indiana Courts

Law - More on "Genetic Basis for Crime: A New Look"

If you found the NY Times story referenced in this entry from Monday interesting, you'll want to catch this morning's Diane Rehm Show on NPR. Starts at 10:06 am., but also archived.

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to General Law Related

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

Updating this ILB entry from April 18, 2011, and this one from April 21st, 2011, the ILB is making another plea for support.

This is a very good time to become an ILB annual supporter, as the next quarter begins a week from now. Act today, your firm could join this list of valued ILB supporters!

Here is a copy of the ILB Supporter Agreement that you may fill out and mail.

What if you'd prefer to send an anonymous individual donation (i.e. not be identified on the ILB) from time to time, rather than making an annual commitment? A handful of you have done that, and I really appreciate the support.

Simply make your check out to Environmental Information Solutions and mail it to 1319 N. Alabama St., Indianapolis 46202-2523. [Sorry, we are not 501(c)(3).] Include your email if you'd like an acknowledgment of receipt and a thanks.

Posted by Marcia Oddi on Thursday, June 23, 2011
Posted to About the Indiana Law Blog

Wednesday, June 22, 2011

Ind. Courts - "Judge denies motion to dismiss charges against mother accused of eating rat poison: A Marion County judge refused to dismiss charges against an Indianapolis woman accused of killing her baby by eating rat poison while she was pregnant"

Updating this list of earlier ILB entries, Fox59 is reporting:

Tuesday, a Marion County judge refused to dismiss charges against an Indianapolis woman accused of killing her baby by eating rat poison while she was pregnant.

Posted by Marcia Oddi on Wednesday, June 22, 2011
Posted to Ind. Trial Ct. Decisions

Environment - "Great Lakes May Beat Atlantic To Offshore Wind"

That is the headline to this story today by Jeff St. Clair of NPR's All Things Considered, but the report itself says otherwise. Some quotes:

Cleveland industrialist Dan Moore has stakes in a dozen businesses, including one that builds turbine blades. But he says the numbers Wissemann is throwing around just don't add up.

"The concept of building windmills in Lake Erie is nonsense. $100 million for 3.4 megawatts, it doesn't even come close to making sense," Moore says. "It's Alice in Wonderland." (Moore is referring to his projections of production for a pilot project to test the proposed wind farm.)

Moore thinks high-priced wind energy won't work in a region that needs electricity to power heavy industry.

"The math doesn't work; you're off by a decimal point," he says.

Some other Great Lakes players are backing away from offshore wind turbine development because of environmental concerns. In Michigan, lawmakers and residents are concerned about disturbing the lake's natural beauty. Meanwhile in Canada, all of Ontario's offshore power projects have been put on hold.

Political, Economic Challenges

But backers in Ohio say they've looked at the realities, and they're still optimistic. Lorry Wagner, head of the nonprofit Lake Erie Energy Development Corp., says he understands the challenges.

Some readers may recall this June 23, 2010 ILB entry, headed "Lt. Gov. Skillman believes it is possible to 'develop wind power opportunities while preserving industry and the natural beauty of Lake Michigan.'"

Posted by Marcia Oddi on Wednesday, June 22, 2011
Posted to Environment

Ind. Courts - Daniel Wilkes sentencing retrial ...

Updating a long list of earlier ILB entries about the case of Wilkes v. State of Indiana, Mark Wilson of the Evansville Courier & Press has this long and interesting story today, headed "Wilkes murder trial under scrutiny in appeal." Some quotes:

In December 2007, a jury found Wilkes guilty of the April 2006 murder of Donna Claspell and her daughters in Claspell's home on Evansville's West Side. Vanderburgh Circuit Court Judge Carl Heldt presided over the December 2007 trial and Wilkes' sentencing.

But the jury could not agree on a sentence. One juror held out for the death penalty while the other 11 favored a life sentence, Steven Schutte, a state deputy public defender said Tuesday.

Schutte said under Indiana law, Heldt was prohibited from weighing the fact that the jury was deadlocked in his sentencing decision, a fact upheld by the Indiana Supreme Court when it upheld Wilkes' conviction in 2009.

However, the state's high court ruled that in the future, it would be allowable for judges to consider the factors involved with a deadlocked jury when imposing sentence.

Heldt's decision to sentence Wilkes to death was the first test of a 2002 change in Indiana law that said a judge had to determine the sentence in a capital murder case after a jury deadlocked over the penalty. Schutte said Tuesday in most states, when a jury can't decide on recommending a death penalty an automatic sentence of life without parole is imposed.

In December, state defense attorneys unsuccessfully argued to Heldt that he should let a different judge hear the current appeal, called a petition for post conviction relief.

On Tuesday, lawyers argued that Wilkes' [trial] defenders, Barbara Williams and Kurt Schnepper, failed to introduce some relevant witnesses and evidence at trial.

Posted by Marcia Oddi on Wednesday, June 22, 2011
Posted to Indiana Courts

Ind. Gov't. - Stories today on yesterday's Charlie White hearing

"White grilled on dual residences: At stake, job as secretary of state; felony case looms," from Niki Kelly of the Fort Wayne Journal Gazette.

"Testimony on White's residency does little to settle basic issue: Both sides say it supports their view of registration question," from Carrie Ritchie of the Indianapolis Star.

Posted by Marcia Oddi on Wednesday, June 22, 2011
Posted to Indiana Government

Ind. Law - "Flaws of bad law(s) exposed"

Following up on Heather Giller's report June 21st on Judge Sarah Evans Barker's questioning during the federal court hearing this week, the Star has this editorial today. Some quotes:

U.S. District Judge Sarah Evans Barker sliced up Indiana's new law with a few effective questions in a federal court hearing Monday. Her questions were exactly the type that legislators should have asked themselves before voting for a bill that they were warned would spark legal challenges.

One portion of the new law authorizes police to arrest immigrants whose legal status is under question -- even in cases where federal authorities have ruled that the person may remain in the United States. Barker asked if legislators really thought that local police officers could be given the authority to override federal judges' decisions.

She also asked (and answered) whether state law could trump an international treaty. It can't, of course. Yet, legislators approved a provision in the new law that attempts to do exactly that by prohibiting the recognition of identification cards issued by foreign consulates.

The Indiana Attorney General's Office, charged with defending the law, is doing so only out of obligation. Attorney General Greg Zoeller made clear early in the legislative process that he thought it unwise for the General Assembly to wade into an issue that is solely the federal government's responsibility.

Lawmakers didn't listen. And now the state is wasting time and money defending a sloppy new law that lawmakers based more on emotion than reasoned analysis. Even Deputy Attorney General Betsy Isenberg, who offered the state's defense in Monday's hearing, was reduced to arguing that the law should be allowed to stand in part because local police might never enforce it.

If that's the case, then what was the point of the General Assembly's rush to pass this legislation? It was all about political posturing, an attempt to look tough on a hot-button issue.

That may be good politics in the short term. But, as Judge Barker demonstrated effectively this week, it makes for a lousy law.

Tracy Warner of the Fort Wayne Journal Gazette's editorial page has this column June 21st headed "Blame lawmakers for voucher scramble." The column details problems surrounding the application of the new voucher law, noting:
They can all thank the Indiana General Assembly, which has long had a habit of passing laws without proper consideration of the practicalities of executing them and how people affected can plan for changes.
After much more discussion of vouchers, the column concludes:
So parents are left to wonder: Will my child be accepted? Will that school have buses? If so, where will she be picked up? If not, how will I get her there? Parents know the list goes on.

Private school officials also need to plan. Will there be two more students this fall or 20? Will they be concentrated in certain grades? Will we need to hire new teachers?

Public school officials also will not know how many students they may lose this fall, affecting staffing and budgets.

This is nothing new for the General Assembly. In the years surrounding the turn of the millennium, lawmakers made numerous changes – some dramatic – in property taxes practically every year. Local officials had to make massive changes on the eve – or even in the middle – of the taxing process.

As a result, the due date for property tax bills changed annually. This despite the fact that one of the most despised elements of property tax bills at the time was their uncertainty due to wild fluctuations from year to year.

The majority of lawmakers didn’t show much empathy, either, for Hoosiers who rely on Planned Parenthood for some types of health care. Their bill defunding Planned Parenthood was deemed an emergency and took effect immediately.

Like the Planned Parenthood bill, the voucher law was a highly charged political issue that Republicans were eager to enact and take effect – no matter how hard the “take effect” part.

Whether or not you agree with vouchers, lawmakers could easily have waited a year for them to take effect, giving everyone time to plan properly.

See also this June 9, 2011 ILB entry, headed "Surprises from the 2011 Indiana General Assembly."

Posted by Marcia Oddi on Wednesday, June 22, 2011
Posted to Indiana Law

Ind. Gov't. - "“Who will watch local, state and national governments? Who will tell us the things we truly need to know if we are to be informed citizens?"

That is the closing of Sheila Kennedy's post today headed "Will the Last Reporter Please Turn Out the Lights?"

Posted by Marcia Oddi on Wednesday, June 22, 2011
Posted to Indiana Government

Law - "Pricing Legal Services in Eight Easy(ish) Steps"

Jay Shepard, who runs Prefix, LLC, a firm that helps lawyers learn how to value and price legal services, has this entry today at Above the Law. You can skip the introductory paragraphs and go straight to the eight steps.

I can't guess how this approach would fare before our Supreme Court. See O'Farrell.

Posted by Marcia Oddi on Wednesday, June 22, 2011
Posted to General Law Related

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

In USA v. Mokol (ND Ind., Van Bokkelen), a 16-page opinion, Judge Cudahy writes:

Appellant Michael Lee Mokol, Jr., appeals from his conviction for two counts of being a felon in possession of a firearm. He raises four trial procedure issues, three of which pertain to evidence and one of which pertains to jury instructions. We do not credit Mokol’s arguments, and accordingly we affirm the judgment of the district court.

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

Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)

For publication opinions today (1):

In Jerrme Cartwright v. State of Indiana , a 16-page, 2-1 opinion, Judge Kirsch writes:

Jerrme Cartwright (“Cartwright”) was convicted after a jury trial of two counts of attempted battery with a deadly weapon, each as a Class C felony, two counts of attempted aggravated battery, each as a Class B felony, and one count of possession of a handgun by a serious violent felon,3 a Class B felony, and was given an aggregate sentence of twenty-six years executed. He appeals, raising the following restated issues for our review: I. Whether the trial court erred in denying Cartwright's objection to the State's use of a peremptory challenge to strike the only African-American from the jury venire; and II. Whether sufficient evidence was presented to support Cartwright's convictions for attempted battery with a deadly weapon. We reverse and remand for a new trial. * * *

[I] Here, the trial court made no express finding as to which of the State's explanations it relied upon in denying Cartwright's challenge; it merely approved the peremptory strike without explanation. Tr. at 141, 151. As a result, we cannot determine which of the State's proffered explanations the trial court relied upon when it denied Cartwright's Batson challenge. The State failed to inquire into such reasons or to develop anything beyond the most superficial of records regarding its reasons. We conclude that the State's proffered explanations for striking the only African-American juror from the jury panel were pretextual and the result of purposeful discrimination. We, therefore, reverse Cartwright's convictions and remand for a new trial.

[II] * * * Therefore, the testimony of Tiffany alone was sufficient to allow the jury to reasonably infer that Cartwright intended to harm Shaudarekkia. Sufficient evidence was presented to support his conviction for attempted battery with a deadly weapon with Shaudarekkia as the victim. We therefore conclude that, because there was sufficient evidence to convict Cartwright, he may be retried.

Reversed and remanded.

MATHIAS, J., concurs.
VAIDIK, J., dissents with separate opinion. I disagree with the majority's resolution of Cartwright's Batson claim. I believe the trial court was warranted in finding no purposeful discrimination in the State's exercise of its peremptory strike. I would therefore affirm the trial court's ruling as well as its judgment of conviction. * * *

In short, I cannot conclude on this cold record that the State's reasons for striking the panelist were baseless, pretextual, and the result of purposeful discrimination. I believe the trial court's ruling deserves much greater deference, and I would therefore find no Batson violation on appeal. For these reasons I respectfully dissent and would affirm the judgment of the trial court.

NFP civil opinions today (2):

Commitment of A.R. (NFP)

Pete Burgmeier v. Robert Akin (NFP)

NFP criminal opinions today (9):

Perry O. Jones v. State of Indiana (NFP)

Carl Andre Coleman v. State of Indiana (NFP)

Latoyia Tuggles v. State of Indiana (NFP)

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

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

Arden Balmer, Jr. v. State of Indiana (NFP)

David B. Tyra v. State of Indiana (NFP)

Todd A. Harmon v. State of Indiana (NFP)

Michael O. Branch v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 22, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In D.M. v. State of Indiana, an 18-page, 5-0 opinion, Justice Sullivan writes:

A juvenile challenges the admissibility of his confession in a delinquency proceeding on grounds that he was not afforded an opportunity for meaningful consultation with his mother and that the waiver of his rights was not knowing and voluntary. We conclude that there was substantial evidence of probative value to support the juvenile court's decision to admit the confession. We also conclude that the juvenile waiver form used by the police in this case should be clarified. * * *

[I] In sum, there is substantial evidence of probative value that D.M. and Mother were afforded an opportunity for meaningful consultation free from police pressure. The meaningful consultation requirement is a safeguard in addition to Miranda intended to ensure that police action does not overcome the juvenile's will and result in a compelled statement. Mother's apparent reluctance to engage in any meaningful dialogue with D.M. concerning D.M.'s rights and the waiver of those rights was not due to any police pressures. Rather, the police provided D.M. an opportunity for meaningful consultation with his custodial parent before the waiver of his rights. * * *

In sum, there is substantial evidence of probative value that D.M.'s rights were waived knowingly, intelligently, and voluntarily under the totality of the circumstances. Accordingly, the juvenile court did not err in admitting D.M.'s confession.

[II] The dispute in this case may have been averted had the juvenile waiver form been clearer. Although the form was not so deficient that it violated the constitutional requirements of Miranda or the essential statutory requirements of Indiana Code section 31-32-5-1, it could have provided more accurate and clear guidance such that there would be no dispute here. * * *

Written waiver forms are not required to satisfy the constitutional demands of Miranda or the statutory requirements of Indiana Code section 31-32-5-1, but they are particularly strong evidence.21 When they are used, they should be clear and unequivocal. Had a clearer form been used in this case, any putative confusion likely would have been resolved as soon as the form was read by D.M. and Mother. A clear form following the guidelines provided here should serve to clarify any ambiguities that arise prior to signing the form and thereby prevent a court from undertaking an in-depth look at how ambiguous and innocent precustodial-interrogation occurrences affect the actual custodial interrogation and the requisite procedures applicable to such interrogation.

Conclusion. We affirm the juvenile court's decision to admit D.M.'s confession and its finding that D.M. is a delinquent child for committing acts that would have been felonies if they had been committed by an adult.

Shepard, C.J., and Dickson and David, JJ., concur.
Rucker, J., concurs in result.

Posted by Marcia Oddi on Wednesday, June 22, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - What about a Supreme Court petition for rehearing?

On June 16, 2011 the Supreme Court responded to a petition for rehearing in Charlie White, et al. v. Indiana Democratic Party with this one-page "Order Denying Petition for Rehearing." The operative statement:

The Court has considered White's petition for rehearing and hereby DENIES White's petition for rehearing.
Disposition via an order denying rehearing is by far the most common disposition to a petition for rehearing. Here are some stats:According to Prof. Joel Schumm at IU-Indy Law:
Rule 54. Rehearings applies to both the Court of Appeals and Supreme Court. The Supreme Court receives several requests for rehearing every year. They are always filed in death penalty cases, for example.

According to last year's annual report twelve rehearing requests were decided last year. Most are denied without opinion.

Perhaps the most high profile request in recent years was in Camm, where the Court denied by a 3-2 vote.

See the ILB entry here, from Nov. 30, 2009. Here is the complete text of the Camm Order:
Appellee's Petition For Rehearing is DENIED this 30th day of November, 2009.

Dickson, Sullivan, and Boehm, JJ., concur.
Shepard, C.J., and Rucker, J., dissent and would grant rehearing and affirm the trial court.

Here are other notable examples from Prof. Schumm of Opinions on Rehearing:In only one case in recent memory has the Court ordered reargument on a petition for rehearing. That was in the case of David Hopper v. State.

Hopper was a Sept. 28, 2010, 3-2 opinion where Justice Boehm wrote the opinion and CJ Shepard wrote an impassioned dissent. (See ILB entry from Jan. 12, 2011). Justice Boehm's planned retirement from the bench occurred two days later, on Sept. 30th.

On Oct. 27, 2010 Appellee filed a petition for rehearing. The Court in this Jan. 10, 2011 Order requested amicus briefs and said it would schedule oral argument. Oral argument was held March 11, 2011, with J. David sitting (you may watch the oral argument here). As of this writing, no opinion has issued.

So what can we conclude? First, the Court very, very rarely sets the case for reargument. Instead, it considers the petition and responses and most often denies, via an order. Rarely, it grants rehearing and issues an opinion, generally at most clarifying a point or modifying a portion of the opinion at issue, without altering the result.

Posted by Marcia Oddi on Wednesday, June 22, 2011
Posted to Indiana Courts

Ind. Law - "The lawyer who has done more than anyone else over the years to upset the status quo in America's political money laws"

From How Appealing:

"The 'Country Lawyer' Shaping Campaign Finance Law": This audio segment about attorney James Bopp appeared on today's broadcast of NPR's "Morning Edition."
Fascinating story. Don't miss the table of nine cases.

Those of you who watched the day-long Charlie White hearing yesterday had the opportunity to observe Mr. Bopp representing a client in a state administrative hearing, rather than before a federal appellate court..

Posted by Marcia Oddi on Wednesday, June 22, 2011
Posted to Indiana Law

Tuesday, June 21, 2011

Ind. Law - "You may make a left turn on a red light from a one-way street into another one-way street unless otherwise posted."

That is from Ch. 13, Sec. 2 of the Indiana Online Driver Improvement, Inc. website. To repeat:

You may make a left turn on a red light from a one-way street into another one-way street unless otherwise posted.
NOT a left turn from a two-way street into a one-way street, something I've seen twice already this week, and it is only Tuesday!

See IC 9-2-1-3-7(3)(B):

(B) Except when a sign is in place prohibiting a turn described in this subdivision, vehicular traffic facing a steady red signal, after coming to a complete stop, may cautiously enter the intersection to do the following:

(i) Make a right turn.

(ii) Make a left turn if turning from the left lane of a one-way street into another one-way street with the flow of traffic.

Posted by Marcia Oddi on Tuesday, June 21, 2011
Posted to Indiana Law

Ind. Decisions - Supreme Court posts two more opinions today

Misty D. Davis v. Animal Control - City of Evansville, et al

Gibraltar Financial Corp. v. Prestige Equipment Corp., National Machinery Exchange, Inc., et al.

Details to follow.

Posted by Marcia Oddi on Tuesday, June 21, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - This is very bad news!

Lesley Stedman Weidenbener's excellent reporting has been quoted often by the ILB, most recently yesterday, re the immigration hearing in federal court.

Today the Louisville Courier Journal let her go, effective immediately. Here are some quotes from a note she sent out mid-afternoon:

I’m sorry to tell you that The Courier-Journal has decided to close its Indianapolis office. As a result, I have been laid off and will leave my position today.

You’ve all been incredibly good to me in my 15 years covering the Indiana Statehouse for two newspapers. They were the best jobs I’ve ever had.

Cheers, Lesley

Lesley Stedman Weidenbener
Indiana Statehouse reporter

62 people were let go at the Indianapolis Star today, including Rob Annis, who has been doing yeoman's work, including June 16th's - "Secretary of state's mom plans to sue his prosecutors"

Posted by Marcia Oddi on Tuesday, June 21, 2011
Posted to Indiana Government

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

In USA v. Locke (SD Ind., McKinney), a 30-page opinion, Judge Kanne writes:

Donella Locke became a real estate agent in an ill-fated attempt to rebuild her credit and get out of debt. In 2008, she was indicted on fourteen counts of wire fraud or aiding and abetting wire fraud in violation of 18 U.S.C. §§ 2 and 1343—as well as a charge of conspiracy to commit wire fraud in violation of 18 U.S.C. § 371—for her role in several real estate transactions. At trial, the government presented evidence of only the five wire fraud counts in which Locke was the principal offender. The jury convicted Locke on all five counts. We find that the district court did not plainly err in failing to strike witnesses’ brief, candid use of the words “fraud” and “misrepresentation” while testifying about the significance of false information in Locke’s loan applications, so we affirm her conviction. The district court sentenced Locke to seventy-one months’ imprisonment and ordered her to pay restitution, basing part of both the length of her sentence and the amount of restitution on conduct not necessarily encompassed in her charges of conviction. Because the district court’s findings were insufficient to support this judgment, we vacate Locke’s sentence and restitution order and remand for resentencing proceedings.

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

Ind. Gov't. - "Governor Daniels announces transition panel for the Department of Toxicology"

In a lengthy press release just issued, Daniels "announced the formation of a three-member panel to oversee the transition of the Department of Toxicology from the Indiana University School of Medicine to the State of Indiana. Daniels appointed Judge Linda Chezem, Dr. James Klaunig, and Michael Medler to serve on the committee."

The document isn't posted yet, but should be available here shortly.

Posted by Marcia Oddi on Tuesday, June 21, 2011
Posted to Indiana Government

Ind. Courts - "Ind. Supreme Court reviews jury instruction in LaPorte child choking-death lawsuit"

Yesterday's oral argument before the Indiana Supreme Court in the case of LaPorte Community School Corporatation v. Maria Rosales is the subject of a story today by Dan Carden in the NWI Times. Some quotes:

The Indiana Supreme Court on Monday heard oral arguments parsing the meaning of "negligence" and debating whether the jury instruction in question implied the school was required to provide more than "reasonable and ordinary" care.

Juan Loera was eating lunch at Hailmann Elementary School on Sept. 12, 2006, when another child made a duck face out of Pringles potato chips causing Loera to laugh, choke on his food and die.

A LaPorte County jury awarded his mother, Maria Rosales, $5 million from LaPorte Community School Corp. -- reduced under state law to $500,000 -- saying the school was negligent for not having personnel trained and prepared to assist choking students.

But the Indiana Court of Appeals last year ordered a new trial, saying the jury based its verdict on a faulty instruction that implied the school was obligated to follow its emergency plan, when it was not legally required to do so.

Attorney Darla Brown, representing the school corporation, urged the Supreme Court to uphold the 2-1 ruling of the appeals court that the jury instruction was in error.

"This implies to the jury that the defendant had duties it didn't have," she said. "It suggests to the jury that some other standard -- other than ordinary and reasonable care -- should apply."

You may listen to Monday's oral argument here.

Posted by Marcia Oddi on Tuesday, June 21, 2011
Posted to Upcoming Oral Arguments

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

For publication opinions today (1):

In Victor J. DiMaggio, III v. Elias Rosario, et al., a 7-page opinion, Judge Kirsch writes:

Victor J. DiMaggio III (“DiMaggio”) appeals the trial court's order dismissing his complaint for usurpation of a corporate opportunity against Liberty Lake Estates, LLC (“LLE”), Mark Nebel (“Nebel”), and William C. Haak (“Haak”) (collectively “the Appellees”) and Elias Rosario (“Rosario”). DiMaggio raises the following restated issue for our review: whether the trial court erred when it dismissed his complaint for failure to state a claim upon which relief can be granted on the grounds that Indiana does not recognize a cause of action against a third-party non-fiduciary for usurpation of a corporate opportunity of a closely held corporation. * * *

Here, DiMaggio has not alleged any knowing conduct on the part of the Appellees. Therefore, while we save for another day the decision as to whether Indiana should adopt such a cause of action, we conclude that, even if such a cause of action were to be recognized in Indiana, his complaint fails to state a claim upon which relief can be granted. The trial court did not err when it granted the Appellees' motion to dismiss. Affirmed.

NFP civil opinions today (1):

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

NFP criminal opinions today (11):

Darrell Farmer v. State of Indiana (NFP)

Donnett Phillips v. State of Indiana (NFP)

Andre White v. State of Indiana (NFP)

Raymond Cain v. State of Indiana (NFP)

Latoya Duncan v. State of Indiana (NFP)

Demarcus Verse v. State of Indiana (NFP)

James C. Ritenour, Jr. v. State of Indiana (NFP)

Eric M. Schuler v. State of Indiana (NFP)

Steven Connors v. State of Indiana (NFP)

Tommie Rivers v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Tuesday, June 21, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Michael Ashby and Randy O'Brien v. The Bar Plan Mutual Insurance Co., and C. Bruce Davidson, Jr., a 9-page, 5-0 opinion, Justice Dickson writers:

This appeal challenges the grant of summary judgment in favor of an insurance company seeking a declaration of no professional liability coverage for claims brought against its insured
attorney who abandoned his law practice, was disbarred, and did not report the claims to the company. We reverse the summary judgment. * * *

We hold as a matter of law that the claims-made professional liability insurance policy purchased from Bar Plan by Davidson for his protection provided no coverage without Davidson's compliance with the policy's condition precedent requiring a personal written notice from him to the company within twenty days of his receiving a claim. As to the issue of estoppel, however, we hold that genuine issues of fact remain regarding whether Bar Plan's misrepresentation of valid coverage resulted in Ashby or O'Brien sustaining actual detriment. The trial court's grant of summary judgment to Bar Plan against Ashby and O'Brien is reversed, and this cause is remanded for further proceedings.

Posted by Marcia Oddi on Tuesday, June 21, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - "Alito, Sotomayor give voice to court split"

Robert Barnes had an interesting report in the June 19, 2011 Washington Post, that began:

The Supreme Court’s two former prosecutors sit on opposite ends of the court’s long mahogany bench, and they take very different views of the criminal justice system.

Justices Samuel A. Alito Jr. and Sonia Sotomayor have emerged in their relatively short time on the bench as two of the court’s most outspoken members on criminal justice issues. Sometimes they speak in unison, but when they disagree they often represent the court’s ideological divide.


Posted by Marcia Oddi on Tuesday, June 21, 2011
Posted to Courts in general

Ind. Courts - More on "Federal court challenge of Ind. immigration law begins"

Heather Gillers has expanded coverage this morning in the Indianapolis Star of yesterday's immigration law challenge before federal Judge Barker. Some samples:

U.S. District Judge Sarah Evans Barker grilled a deputy attorney general for roughly an hour about how exactly the state could enforce the legislation without running afoul of federal law and international treaties.

The American Civil Liberties Union of Indiana is challenging two main provisions of the law: the use of consular identification cards and the arrest of people whose immigration status is questionable. * * *

The ACLU is challenging the law's prohibition of the use of ID cards issued by foreign consulates, even though the Treasury allows banks to accept them. The other part of the law being challenged allows local police to arrest immigrants whose immigration status has been questioned by federal authorities -- even if those authorities have determined that the person should be able to remain in the country.

"He (the police officer) can trump the (federal) judge's decision?" Barker asked Deputy Attorney General Betsy Isenberg.

She also questioned Isenberg about the ID cards, which are valid under international agreements.

"Does Indiana law trump a treaty?" the judge asked -- before answering her own question: "It doesn't."

Isenberg argued that the consulate-issued cards are subject to fraud and the state has an interest in regulating them -- not just for government business but for private transactions as well. She also argued that the plaintiffs in the case -- three immigrants --should not be able to sue until they are actually affected by the law with an arrest or other action -- something that might never happen. Isenberg said police might decide to not even enforce the law, and that if they did, they would likely only do so when arresting an illegal immigrant for another offense.

ACLU legal director Kenneth Falk said that would not be a fair assumption.

"We have to presume that the Indiana legislature is passing laws that they intend to enforce," he said. "I don't think the legislature was kidding." * * *

At one point in the back-and-forth between Barker and Isenberg, the deputy attorney general acknowledged that her expertise is limited.

"I am not an immigration lawyer," Isenberg told the judge.

"If this goes into effect," Barker replied, "you may become one."

Posted by Marcia Oddi on Tuesday, June 21, 2011
Posted to Indiana Courts

Courts - More on yesterday's SCOTUS opinions

Law.com has links this morning to articles about these major SCOTUS decisions from yesterday:

In addition, here is Nina Totenberg's NPR story today on Wal-Mart.

How Appealing has colllected some of the Wal-Mart stories here.

Posted by Marcia Oddi on Tuesday, June 21, 2011
Posted to Courts in general

Monday, June 20, 2011

Ind. Gov't. - Sec. of State website makes publicizing tomorrow's videocast of the hearing unnecessarily difficult

Updating this entry from Sunday, the Charlie White hearing tomorrow before the Indiana Recount Commission begins at 9:00 am. Although the Recount Commission voted to videocast the hearing, I still can't tell you how to access it.

I was told this morning that the head of the State Election Division said the link will be right under the Election Division's banner on its website tomorrow morning. It sure isn't there now, the evening before. Why the hassle?

[More] Well, wait, here it is. NOT on the page Recount Commission's page, where the agenda is, but here on the Election Division main page.

The link itself, which should work at 9:00 am.

Channel 6 will air live coverage of the Charlie White hearing tomorrow on a number of digital channels, plus on the web, at IndyChannel.com. I don't know if the TV cameras will be in operation, or if they will use the state videocast feed.

Posted by Marcia Oddi on Monday, June 20, 2011
Posted to Indiana Government

Law - "Genetic Basis for Crime: A New Look"

Patricia Cohen of the NY Times has this unexpected story today that begins:

It was less than 20 years ago that the National Institutes of Health abruptly withdrew funds for a conference on genetics and crime after outraged complaints that the idea smacked of eugenics. The president of the Association of Black Psychologists at the time declared that such research was in itself “a blatant form of stereotyping and racism.”

The tainted history of using biology to explain criminal behavior has pushed criminologists to reject or ignore genetics and concentrate on social causes: miserable poverty, corrosive addictions, guns. Now that the human genome has been sequenced, and scientists are studying the genetics of areas as varied as alcoholism and party affiliation, criminologists are cautiously returning to the subject. A small cadre of experts is exploring how genes might heighten the risk of committing a crime and whether such a trait can be inherited.

The turnabout will be evident on Monday at the annual National Institute of Justice conference in Arlington, Va. On the opening day criminologists from around the country can attend a panel on creating databases for information about DNA and “new genetic markers” that forensic scientists are discovering.

“Throughout the past 30 or 40 years most criminologists couldn’t say the word ‘genetics’ without spitting,” Terrie E. Moffitt, a behavioral scientist at Duke University, said. “Today the most compelling modern theories of crime and violence weave social and biological themes together.”

Posted by Marcia Oddi on Monday, June 20, 2011
Posted to General Law Related

Ind. Courts - "Federal court challenge of Ind. immigration law begins" [Updated twice]

Updating Friday's ILB entry, Heather Gillers of the Indianapolis Star posted this story at few minutes before the 2 pm start of today's hearing. The story begins:

The American Civil Liberties Union of Indiana is challenging Senate Enrolled Act 590 on two grounds. First, the ACLU argues, the state law's provision against using or accepting IDs issued by foreign consulates -- to open a bank account for example -- overrules international agreements. Second, the law empowers police to arrest people being questioned on immigration matters by federal authorities even if they have not been convicted of anything -- a violation, the ACLU says, of the constitutional prohibition against unreasonable searches and seizures.

"What Indiana is doing is involving itself in foreign affairs," said Ken Falk, legal director for the ACLU.

[Updated at 4:44 pm] Heather Gillers has now posted a story on the IndyStar site - some quotes:
A federal judge said she would rule by July 1 on a court challenge seeking to suspend parts of Indiana's newly passed immigration law.

U.S. District Court Judge Sarah Evans Barker presided over a two-hour hearing today on the challenge. She had several pointed questions for attorneys representing the state on how the law would be enforced.

[Updated again at 6:15 pm] Lesley Stedman Weidenbener of the Louisville Courier Journal has now posted a long and comprehensive story about today's hearing. Some quotes:
U.S. District Judge Sarah Evans Barker said she is taking arguments for and against the law under advisement but made clear she has significant concerns about its fairness and implementation.

In questioning an attorney representing the state, Barker said the law doesn’t say whether individuals arrested would have the same right as someone arrested for a crime, gives police significant discretion but little guidance about whom to arrest, and could lead police to arrest an illegal immigrant who simply applied for work documents.

“There are no restrictions in the statutes about how those powers would be executed in non-arbitrary and non-discriminatory ways,” Barker said.

Check it out.

Posted by Marcia Oddi on Monday, June 20, 2011
Posted to Indiana Courts

Ind. Decisions - COA posts an additional opinion today

In Block v. 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.

Posted by Marcia Oddi on Monday, June 20, 2011
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (1):

James Wingard v. State of Indiana - "The trial court did not err in granting Wingard permission to file a belated notice of appeal. Furthermore, the trial court did not abuse its discretion in imposing a thirty-six year sentence. Finally, the trial court’s sentence was not inappropriate."

NFP civil opinions today (1):

A.N. v. J.N. (NFP)

NFP criminal opinions today (2):

Nelson E. Rios v. State of Indiana (NFP)

Spencer McCombs v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 20, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Supreme Court limits Wal-Mart sex bias case "

Mark Sherman of the AP now has posted this story in the Wal-Mart decision today.

[More] Here is the AP coverage of AEP v. Conn., headed "States Cannot Bypass E.P.A. on Power Plant Emissions, Justices Rule." And here is Lyle Denniston's case analysis at SCOTUSblog.

[More] Here is a long WSJ story on the Wal-Mart decision today. (Apparently all WSJ stories are free-access today.)

Posted by Marcia Oddi on Monday, June 20, 2011
Posted to Courts in general

Courts - SCOTUS opinions today

Thanks to SCOTUSblog:

American Electric v. Conn. case page is here. Opinion: "The Court holds that the Clean Air Act and the EPA's actions under the Act displace the claims that are made under public nuisance laws."

Wal-Mart - "The Court holds that the certification of the plaintiff class here was not consistent with Rule 23(a). Court holds, among other things, that Wal-Mart is entitled to individual determinations of its employees' eligibility for back-pay. Second part of the opinion says that claims for monetary relief may not be certified for 23(b)(2), at least when the request for monetary relief is not incidental to the request for injunctive or declaratory relief." Case page is here Opinion here. More anaysis: "The Court does say that 23(b)(2) applies only when a single indivisible remedy would provide relief to each class member. If you want to pursue individual monetary claims, must do so under 23(b)(3)." "The Court unanimously holds the class should not have been certified. The four members of the Court would decide the case more narrowly."

Sentencing Law blog has this, on Turner v. Rogers, the right to counsel case.

Posted by Marcia Oddi on Monday, June 20, 2011
Posted to Courts in general

Ind. Decisions - Judge Rosenberg denies White immunity request [Updated]

Updating yesterday's ILB entry on the hearing this morning before Judge Rosenberg, this tweet re today's 8 am hearing:

nkellyatJG Niki Kelly
Embattled SOS Charlie White denied immunity this morning; if he testifies in recount hearing can be used against him criminally.
[Updated at 10:00 am] Here is Carrie Ritchie's IndyStar story. It begins:
Anything Secretary of State Charlie White says at an election hearing Tuesday can be used against him in his criminal case in Hamilton County, a Marion Circuit Court judge ruled this morning.

Posted by Marcia Oddi on Monday, June 20, 2011
Posted to Ind. Trial Ct. Decisions | Indiana Government

Ind. Decisions - The State has until Monday, June 27 to file a response brief to the petition for rehearing in Barnes v. State

The State has until Monday, June 27 to file a response brief to the petition for rehearing in Barnes v. State. (Here is a long list of earlier ILB entries re "Barnes".) According to this story today from Dan Carden of the NWI Times:

Attorney General Greg Zoeller, who represents the prosecution at the state's high court, has until June 27 to file a motion opposing the petition for rehearing.

Zoeller told The Times he will not do so, to give the five-member court a chance to narrow its 3-2 ruling on police entry issues, though Zoeller said Barnes' convictions should stand.

Once the June 27 deadline passes, there is no timetable for the court to act on the petition for rehearing.

This earlier story by reporter Carden, from May 30th, that the ILB somehow missed the first time around, is based on an interview with State Attorney General Greg Zoeller. Some quotes:
INDIANAPOLIS | State Attorney General Greg Zoeller is toeing a tightrope following this month's Indiana Supreme Court ruling that Hoosiers have no right to resist illegal police entry into their homes.

After all, as the state's attorney in criminal appeals to the high court, Zoeller won the case.

In its May 12 Barnes v. State of Indiana ruling, the Supreme Court overturned a decision of the Indiana Court of Appeals and restored the misdemeanor convictions of Richard Barnes, of Evansville, for disorderly conduct, battery on a police officer and resisting arrest.

Barnes shoved a police officer who tried to enter his home after Barnes told the officer he couldn't come in. Police were dispatched to Barnes' home following a 911 call reporting a possible domestic incident.

Zoeller believes the circumstances justified police entry into Barnes' home without his permission, Barnes was wrong to touch the officer and therefore Barnes' convictions should stand.

At the same time, Zoeller said he will not oppose a petition expected to be filed by Barnes' attorney, Erin Berger, asking the court to reconsider its ruling.

Zoeller told The Times the portion of the court's 3-2 decision that terminated the common law right of resistance to illegal police entry deserves a second look.

"You change a historic common law right when there's a demand and a clear need for it and, at least from my perspective, I didn't see it," Zoeller said. "There are a number of ways to resolve the case short of reaching this policy decision."

The Republican attorney general said he was so surprised by the broad scope of the court's ruling that he had his staff reread their court filings to see if they said anything that might have triggered the unexpected outcome.

"This was the court looking at a policy decision, but it wasn't something that we asked for," Zoeller said.

ILB: So it may be that the AG will file no response at all to the petition for rehearing, although that would be surprising to many.

Posted by Marcia Oddi on Monday, June 20, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Toxicology lab's fresh start sparks sense of optimism"

That is the headline of this front-page story this morning in the Indianapolis Star, reported by Tim Evans and Mark Alesia. Some quotes:

Legal experts and state officials say they are hopeful that pulling the state Department of Toxicology out of Indiana University and making it a stand-alone state agency will lead to the end of long-standing problems at the lab that tests blood and urine samples for criminal cases.

The move comes as a result of legislation approved by the General Assembly in response to complaints about the lab's performance, including long delays in receiving test results and concerns about the accuracy of those results.

Although cynics might say that placing the state agency lab under the auspices of Indiana University might have been the solution recommended if the situation were reversed, a section later in the story points to some more promising changes:
But it may be another change spelled out in the legislation -- a mandate that the new agency work toward accreditation by a nationally recognized toxicology group -- that makes the biggest difference.

The legislation calls for the creation of a three-member advisory board, appointed by the governor, to oversee the department. One of the advisory board's duties, specifically spelled out in the bill, is to provide guidance on "obtaining accreditation by a nationally recognized organization that sets toxicology standards." * * *

Accreditation is essential because it requires ongoing internal and external scrutiny of a lab's work, said Ralph Keaton, executive director of the American Association of Crime Lab Directors Lab Accreditation Board. The Indiana lab has never sought accreditation or been accredited.

To be accredited, labs must meet widely recognized operational and performance standards -- and maintain documentation that those standards are followed in every case, Keaton said. His group is the country's oldest and leading forensic accreditation body, and one of only three nationally recognized groups that certify forensic toxicology labs.

Ultimately, Keaton said, the process comes down to ensuring that the courts and the public can be confident in a lab's work.

"Having external, competent experts review your work," he said, "gives everyone involved confidence that a lab is operating in accordance with internationally recognized standards and providing accurate results."

Posted by Marcia Oddi on Monday, June 20, 2011
Posted to Indiana Government

Ind. Gov't. - More on: "Indiana prisoners will no longer be able to earn a taxpayer-funded bachelor's degree or study liberal arts under a shift in state prison-education policy"

Updating this ILB entry from June 6th on the new state policy, two items:

Posted by Marcia Oddi on Monday, June 20, 2011
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending June 17, 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 June 17, 2011. It is one page (and 16 cases) long.

One petition to transfer was granted, and it was granted with opinion on June 14th: Douglas Denzell v. State of Indiana - ILB summary here.
__________

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, June 20, 2011
Posted to Indiana Transfer Lists

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

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

From Sunday, June 19, 2011:

From Saturday, June 18, 2011:

From afternoon Friday, June 17, 2011:

Posted by Marcia Oddi on Monday, June 20, 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 6/20/11):

Monday, June 20th

Tuesday, June 21st

Next week's oral arguments before the Supreme Court (week of 6/27/11):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/20/11):

Thursday, June 23rd

Next week's oral arguments before the Court of Appeals (week of 6/27/11):

Next Monday, June 27th

Next Tuesday, June 28th

Next Wednesday, June 29th

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

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


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

Posted by Marcia Oddi on Monday, June 20, 2011
Posted to Upcoming Oral Arguments

Sunday, June 19, 2011

Law - "Lots of good reasoning on crime and punishment at Reason"

That is the heading to this entry at Sentencing Law Blog, about the July issue of Reason magazine.

Posted by Marcia Oddi on Sunday, June 19, 2011
Posted to Courts in general

Ind. Courts - "Fountain County in quandary over courthouse's murals"

A long story today in the Lafayette Journal Courier, reported by Mikel Livingston, begins:

Historic murals on the walls of the Fountain County Courthouse are at the heart of a polarized debate taking place in Covington.

The murals, painted by or under the direction of renowned artist and Covington native Eugene Savage in the 1930s, played a prominent role in landing the building on the National Historic Register.

The murals were last touched up in 1983, but the sealant in use then shrinks with age and has pried the paint from the walls, leaving the murals in increasing disrepair.

"They touched those up 20 or 25 years ago and now there's plaster underneath them, and you know when plaster gets old it bubbles up," said Walt Wilson, chairman of the Fountain County commissioners. "They need to be repaired."

Enter Cheryl Harris, a Covington-based artist who petitioned commissioners last week to allow her to reproduce the murals. Her proposal entails covering the murals with canvas and then replicating the images exactly on top of the canvas.

"If the paint is deteriorating and creating the loss of these images, something needs to be done," Harris said. "My opinion is that I believe the images could be reproduced and reillustrated onto a different type of surface so the memory and illustration work is still there for everyone to see."

But some community leaders are staunchly opposed to Harris's plan, including Kathy Haas, president of Fountain County Landmarks, who called the idea "a travesty."

In the past year, Haas's group has hosted experts from the Chicago Conservation Center and Baltimore-based Thomas Moore Studios who came up with a restoration plan for the murals that would cost around $450,000.

"We've had them assessed and went to the commissioners a week ago," Haas said. "And a local artist offered her thoughts on the murals, wanting to put up cloth and paint her own mural up there. Those of us interested in history and preservation are horrified."

Posted by Marcia Oddi on Sunday, June 19, 2011
Posted to Indiana Courts

Courts - More on "Schools May Punish Students for Off-Campus, Online Speech"

Updating this ILB entry from June 16th, here is a good, link-rich June 13th story from the Student Press Law Center on the "landmark rulings," written by Seth Zweifler.

For a good discussion of both this issue and school bullying, listen to Emily Bazelon's report on the June 17, 2011 podcast of Slate's Weekly Political Roundtable. Her report begins at 26:28 into the podcast:

Posted by Marcia Oddi on Sunday, June 19, 2011
Posted to Courts in general

Ind. Gov't. - Again: Charlie White saga continues

Updating this most recent entry from June 17th, as Eric Bradner reports today in the Evansville Courier and Press: "This could be a rough week for Charlie White." What follows in the C&P is Bradner's excellent long report on exactly what to expect at Tuesday's hearing.

Jim Shella of WISH-TV and Indiana Week in Review reported on Friday in an item headed "White going to great lengths to avoid answering questions." Shella recounts White's three attempts to obtain limited (use) immunity; Marion County Judge Louis Rosenberg, who is overseeing the Recount Commission proceeding, agreed to hear such a motion this Monday morning at 8 am. The story concludes:

On this week's Indiana Week in Review there was consensus that White's legal maneuvers will be futile. When it was pointed out to Republican Mike McDaniel that White is trying awfully hard not to answer questions, McDaniel said: "Yeah, he is, and that's troublesome in its own right."

Democrat Ann DeLaney said: "The facts are there, and the facts speak for themselves. He's going to be convicted of this."

But even if he is, Charlie White will go down fighting.

If, in fact, Rosenberg denies Charlie White's plea for immunity on Monday, White may do nothing more than plead the Fifth Amendment come Tuesday.

Documents. The ILB has obtained these documents submitted re Monday's hearing:

Tuesday's hearing: Tuesday, June 21, 2011, at 9:00 a.m. EDT, Conference Center Room "B", Indiana Government Center South, 402 W Washington St, Indianapolis.

The Commission voted to videocast the hearing, but the ILB has been unable to locate to link for that. For now, the best bet it that the link will be posted on the Indiana Recount Commission webpage, which is part of the Indiana Election Division (headed by the Secretary of State, Charlie White).

Channel 6 has announced it will broadcast the Tuesday hearing on its digital channel, 6-2.

Posted by Marcia Oddi on Sunday, June 19, 2011
Posted to Indiana Government

Ind. Law - More on "Enforcement Of Indiana Texting Ban Questionable: Law Becomes Effective July 1"

Updating this ILB entry from June 2nd on HEA 1129, Lisa Trigg of the Terre Haute Tribune-Star reports today in a long story headed "Getn tuf on txting: Law banning text and email while driving takes effect July 1."

The new IC 9-21-8-59, effective July 1, 2011, reads:

Sec. 59. (a) A person may not use a telecommunications device to:
(1) type a text message or an electronic mail message;
(2) transmit a text message or an electronic mail message; or
(3) read a text message or an electronic mail message;
while operating a moving motor vehicle unless the device is used in conjunction with hands free or voice operated technology, or unless the device is used to call 911 to report a bona fide emergency.

(b) A police officer may not confiscate a telecommunications device for the purpose of determining compliance with this section or confiscate a telecommunications device and retain it as evidence pending trial for a violation of this section.

Some quotes from today's story:
Police officials are acknowledging that it can be tricky to catch someone in the act of texting, since most cell phones can be used for a variety of functions in addition to text or email messaging.

“We’re not gonna send out guys specifically to watch for that,” Terre Haute Police Chief John Plasse said of the new law, “but if we see people obviously doing that, then we can pull them over.”

Plasse said he has seen drivers with both hands resting on the steering wheel while their thumbs are quickly typing a message into a phone. That is the obvious type of violation that officers will be looking for, he said.

“It’s going to be difficult to enforce,” he acknowledged, especially if a driver denies texting or emailing, since the law prohibits an officer from taking a phone to see what the suspected texter was doing.* * *

While many Hoosiers agree it is dangerous to text while driving, and that something needed to be done to protect the motoring public from drivers distracted by texting or emailing, the wording of Indiana’s law may hint that common sense took a wrong turn on the road to safer travel.

After all, if cell phones are the source of the texting and emailing problem, why not just ban all cell phone use, including phone conversations? * * *

“I don’t think anyone disagrees that texting while driving is a bad thing,” said Joel Schumm, professor at Indiana University School of Law[-Indianapolis], about the “noble and wonderful” intent of the new law to reduce distracted driving. “But the wording of this law is open to challenges.” * * *

“I think it started broader,” Schumm said of the law as it was originally written to eliminate all use of cell phones. “The version now is illogical. You can play Angry Birds or be Googling or reading a book on your Kindle, but you can’t send or receive text messages or email.”

The biggest problem that Schumm sees for the law, though, is the legal challenges that will come for arrests that came about as a result of a texting citation.

“I think there will be challenges if police pull you over on the pretext of texting, and the officer sees drugs or guns in the car,” he said, explaining that a defense attorney will likely challenge how the arrest came about.

Schumm predicts that in future legislative sessions, Hoosier lawmakers will likely consider broadening the law to say that drivers can’t use cell phones at all.

Vigo County Sheriff Greg Ewing said he agrees that, just like with the seatbelt use law enacted several years ago, some additional legislative tweaks are likely in the future before both police officers and the public become comfortable with this law.

[More] Re the provision of the statute that reads:
(b) A police officer may not confiscate a telecommunications device for the purpose of determining compliance with this section or confiscate a telecommunications device ...
a reader writes:
"I think cops might ask for consent to see the phone....like they do to search for all sorts of things. Hopefully people have the sense to say no."

Posted by Marcia Oddi on Sunday, June 19, 2011
Posted to Indiana Law

Saturday, June 18, 2011

Ind. Courts - "Allen Superior Court officials told the Allen County Council on Thursday that they would like to explore the idea of using technology to help the public maneuver through the court-system maze"

Vivian Sade has this interesting story this morning in the Fort Wayne Journal Gazette - some quotes:

The idea for the study came about after a Fort Wayne City Council member accompanied a family member to court for a traffic violation and later told Noble they were surprised at the difficulty they had navigating the court process.

There are two large courtrooms in the Bud Meeks Justice Center, which is connected to the Allen County Jail and located at 101 E. Superior St.

The building includes a security screening, a large lobby area, payment windows and satellite offices for the clerk, jury administration and prosecuting attorney.

The Misdemeanor/Traffic Division of Allen Superior Court processes between 28,000 and 33,000 cases a year, making it one of the busiest courts in the state, Noble said.

The study will outline technological solutions, which could include an electronic display of calendars, courtroom dockets and case information.

“Much like you do at an airport when you arrive and check the terminal monitors for the arrivals and departures, this system would allow visitors to look at a screen and see where they needed to go and at what time,” Noble said.

The information could be updated quickly, and changes in courtrooms or hearings – which are common, he said – would be instantly displayed on the information screen.

The courts currently use paper schedules and dockets, and it’s not uncommon for visitors to pick up the schedules and take them, “leaving those who come in later without any source of information at all,” Noble said.

Posted by Marcia Oddi on Saturday, June 18, 2011
Posted to Indiana Courts

Courts - "New Jersey Supreme Court Will Hear Fourth Amendment Case Involving Supposed 'Administrative Search' of a Family’s Back Yard"

This entry in The Volokh Conspiracy, by Prof. Volokh, really is interesting and the ILB will try to follow any future reports.

Posted by Marcia Oddi on Saturday, June 18, 2011
Posted to Courts in general | Environment

Ind. Decisions - "Hammond’s apartment ordinance blocked by federal judge"

Teresa Auch Schultz reports today in the Gary Post-Tribune:

A federal judge has blocked a Hammond ordinance that charges non-city apartment owners more than those who live in the city.

U.S. District Judge Theresa Springmann also said in her order, issued Thursday in the U.S. District Court in Hammond, that the Indiana Apartment Association would likely win its lawsuit against Hammond’s rental registration ordinance.

The suit focuses on a law the Hammond City Council approved in 2010 to charge apartment owners $20 per rental unit in the city every year. Owners who do not live in the city would be charged more, however, at $80 a unit every year.

IAA filed a federal lawsuit last year, saying the ordinance violates the U.S. Constitution’s Commerce Clause by hurting a non-resident’s right to do business in Hammond.

The city fought back, however, filing responses saying that because a large majority of rental problems come from those owned by non-residents, it was only fair to charge them more.

Springmann disagrees, saying in her ruling that the city did not provide similar statistics for how many of the apartments in Hammond are owned by non-residents. If a large majority are owned by people living outside the city, then it only makes sense they also make up a large portion of the problem apartments.

“The ordinance discriminates on its face against non-Hammond residents,” Springmann says in the ruling.

Posted by Marcia Oddi on Saturday, June 18, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Surprise filing by US DOJ may extend timetable in Planned Parenthood case

Updating this entry yesterday, which includes a link to the US DOJ brief, Heather Gillers of the Indianapolis Star has a story this morning headed "State gets a week to reply to feds in Planned Parenthood case: Planned Parenthood says it must stop seeing Medicaid patients Monday." Some quotes:

U.S. District Judge Tanya Walton Pratt is giving the state a full week to respond to a U.S. Department of Justice brief filed late Thursday that sides with Planned Parenthood of Indiana. It's unlikely the judge will rule until after she gets that response.

The delay means Planned Parenthood will have to stop seeing Medicaid patients when donations run out Monday, said spokeswoman Kate Shepherd. The health provider has been using private contributions to pay for birth control, tests for sexually transmitted disease, cancer scans and other services for its 9,300 Medicaid patients since the law cutting off its Medicaid funding took effect May 10.

It will take Pratt many months to decide whether the law should stand, but she has said repeatedly that she intends to decide by July 1 whether to grant Planned Parenthood's request to suspend enforcement of the law while the court case plays out.

The U.S. Justice Department brief argued that Pratt should grant the preliminary injunction because cutting off Medicaid funding to Planned Parenthood violates federal rules against picking and choosing where Medicaid patients can receive services.

"Although Indiana claims that its decision to deny payment for covered Medicaid services to providers who perform abortion services serves the public interest, Congress has already made a contrary policy judgment: that beneficiaries should receive Medicaid services from providers of their own choosing," wrote Assistant Attorney General Tony West.

Posted by Marcia Oddi on Saturday, June 18, 2011
Posted to Indiana Courts

Ind. Courts - More on "IU audit: 1 in 3 cocaine tests in criminal cases bad"

Updating yesterday's entry, here is Tim Evans full, front-page story in this morning's Indy Star.

Posted by Marcia Oddi on Saturday, June 18, 2011
Posted to Indiana Courts

Friday, June 17, 2011

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

Updating this ILB entry from May 26th, and this update from June 10th, Charles Wilson of the AP reports this afternoon in a well-worth reading in full story that:

U.S. District Judge Jane Magnus-Stinson is set to hear arguments from both sides Monday as she considers a lawsuit filed by the American Civil Liberties Union of Indiana and the National Immigration Law Center, which are seeking a preliminary injunction to stop the law from taking effect next month.

The groups aren't fighting all provisions of the wide-ranging law, which also takes away certain tax credits from employers who hire illegal immigrants. The main bone of contention is arrest powers.

The new law allows police to arrest immigrants under certain conditions, including if they face a removal order issued by an immigration court. The lawsuit filed last month, however, says some of the conditions are too broad, can apply widely to thousands of immigrants and violate the constitutional requirement of probable cause. * * *

ACLU attorney Ken Falk said Thursday that four countries — Mexico, Colombia, Brazil, El Salvador and Guatemala — plan to file briefs in the case. The move would not be unusual, Mexico and 10 other countries recently joined civil rights groups' legal fight against a tough new immigration law in Georgia and there have been similar filings in other states.

State attorneys argue claims about the law are speculative and based on an "irrational" and "absurd" interpretation. They note Indiana's law doesn't go as far as the Arizona measure, struck down on appeal, that included provisions to compel police to check the citizenship status of anyone who they had "reasonable suspicion" to believe is in the country illegally.

"Indiana's statute merely gives Indiana officers the discretion to assist federal enforcement of immigration laws. Indiana's statute does not purport to give Indiana any ability to participate in federal removal or deportation proceedings, nor does it allow Indiana to pass judgment concerning the removability of an individual," the state said in its brief filed Wednesday.

In a response filed Friday, the ACLU dismissed state arguments that the law would be used only in cases where people otherwise faced arrest, repeating its claim that the statute authorized arrest for offenses that aren't crimes in violation of the Fourth Amendment and impinged on federal immigration authority.

"Immigration is not a state concern," the brief flatly stated.

Posted by Marcia Oddi on Friday, June 17, 2011
Posted to Indiana Courts

Ind. Courts - "IU audit: 1 in 3 cocaine tests in criminal cases bad"

Looking forward to reading the full story in the Indy Star tomorrow. Tim Evans reports this afternoon that:

Nearly one of every three cocaine tests conducted for criminal cases by the Indiana Department of Toxicology from 2007-2009 were bad, according to audit results released today by Indiana University.

The findings follow the release in April of audit results that revealed a 10 percent error rate in marijuana tests during the same period. * * *

The audit will now move to alcohol tests results from 2007-2009, which MacIntyre said will include the largest number of tests to be reviewed.

Posted by Marcia Oddi on Friday, June 17, 2011
Posted to Indiana Courts

Ind. Courts - Still more on "Judges Crack Down On Social Media Use Inside Courtrooms: Juror Caught Tweeting During Court Cases"

Updating this ILB entry from June 16th, it turns out there is an entire blog called Juries, with an entry yesterday headed "Facebook Juror" Receives 8-Month Sentence and "Email Juror" Fined $1,000.

Posted by Marcia Oddi on Friday, June 17, 2011
Posted to Indiana Courts

Ind. Courts - Even more on: Chevron and federal administrative agency v. state agency

Re the surprise brief filed last evening by the US DOJ, the AP's Ken Kusmer is now reporting:

U.S. District Judge Tanya Walton Pratt granted Friday the state's request that it be given a week to respond to a Justice Department brief. * * * Planned Parenthood didn't object to the state's request.

Posted by Marcia Oddi on Friday, June 17, 2011
Posted to Indiana Courts

Ind. Gov't. - Charlie White saga continues

More legal activities ...

Wednesday, the Recount Commission voted "voted not only to allow TV cameras, but also to stream the hearing [next Tuesday] on the Internet. * * * The commission also rejected Michelle White's request not to be subpoenaed to testify."

At 11:46 am today, Carrie Richie posted this story to the Indianapolis Star:

Charlie White is asking a judge to prevent his testimony during an election hearing Tuesday from being used against him in his criminal case.

Marion Circuit Court has agreed to consider the issue Monday morning, just one day before the hearing.

The Indiana Recount Commission will hear testimony Tuesday regarding Democrats' complaint that White was illegally registered to vote at the time he declared his candidacy for Secretary of State and shouldn't be allowed to hold office. Democrats say that the Republican White's opponent, Vop Osili, should replace White.

White has unsuccessfully sought to halt the Democrats' complaint until his criminal case in Hamilton County is resolved. He has been charged with seven felonies, including three counts of voter fraud, and his trial is scheduled for Aug. 8.

White and his wife, Michelle, were subpoenaed to testify at Tuesday's hearing.

His wife's attorney, former Marion County Prosecutor Carl Brizzi, tried to get her out of testifying because she has been told she's the target of a grand jury investigation, but the commission ruled this week that she must testify and assert her Fifth Amendment right not to incriminate herself.

White's attorney, Jim Bopp, has requested use immunity to White and his wife.

Use immunity would prevent their testimony at Tuesday's hearing from being used against them in a criminal case.

The two special prosecutors on White's criminal case declined to grant them use immunity, according to court documents.

Marion Circuit Court [Marion Circuit Judge Louis Rosenber] will hear arguments on White's request for use immunity at 8 a.m. Monday.

Posted by Marcia Oddi on Friday, June 17, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 4 today (and 11 NFP)

In Shaun M. Berry v. State of Indiana , a 10-page opinion, Judge Crone writes:

Shaun M. Berry appeals the trial court’s imposition of a $100 public defender fee and $364 in court costs following his conviction for class A felony aiding in the manufacture of methamphetamine. He argues that the trial court imposed the $100 public defender fee without making the statutorily required finding that he had the ability to pay it and failed to identify the statutory authorization for imposing $364 in court costs. We agree, and therefore reverse the trial court’s imposition of the public defender fee and remand for a determination of Berry’s ability to pay for his legal services and for clarification of the statutory authority for the $364 in court costs.
In Involuntary Commitment of T.A., a 12-page opinion, Judge Crone writes:
T.A. was admitted to Wishard Health Services, Midtown Community Mental Health Center (“Wishard”) after she removed her clothing in public. T.A.’s attending physician diagnosed her with bipolar disorder and concluded that she was in a manic state. Wishard sought and obtained a temporary commitment of T.A. on the basis that she is mentally ill and gravely disabled. T.A. appeals, contending that there is insufficient evidence that she is gravely disabled. There is evidence to support the doctor’s conclusion that T.A. does not have a realistic plan to care for herself, which the trial court could credit over T.A.’s claims to the contrary. Therefore, we affirm.
In Carlton Wright v. State of Indiana , a 12-page opinion, Sr. Judge Barteau writes:
Defendant-Appellant Carlton Wright appeals his convictions of robbery, a Class A felony, Indiana Code section 35-42-5-1 (1984), and criminal confinement, a Class D felony, Indiana Code section 35-42-3-3 (2006). Wright also appeals his sentence. We affirm in part, reverse in part, and remand.
In Danny Holloway v. State of Indiana , a 7-page opinion, Judge May writes:
Danny Holloway was charged with six felonies and agreed to plead guilty to Class B felony burglary. The plea agreement provided his initial executed sentence would be capped at ten years. The trial court sentenced him to sixteen years with ten years executed, six years suspended, and five years of probation. As the sentence was not inappropriate, we affirm. * * *

The boilerplate language of Holloway’s plea agreement included a waiver of his right to appeal the sentence as long as it was within the terms of the plea agreement, and Holloway initialed that provision. But the trial court explicitly told Holloway at least twice at his combined guilty plea and sentencing hearing that Holloway could appeal his sentence. * * *

Despite the judge’s statements and the State’s acquiescence to them, the State now asks us to hold Holloway waived his right to appeal the sentence. We decline, as we consistently have in such situations, to hold there was a knowing and voluntary waiver. * * *

Holloway did not knowingly and intelligently waive his right to appeal his sentence and we accordingly will address his argument the
sentence is inappropriate.

We cannot, however, find Holloway’s sentence inappropriate. * * *

Based on Holloway’s character and the nature of his offense, we cannot hold the sentence inappropriate. Accordingly, we affirm the decision of the trial court.

NFP civil opinions today (1):

Cary R. Wollenweber v. Hawkins Enterprises, Inc.; et al. (NFP)

NFP criminal opinions today (10):

Michael W. Baker v. State of Indiana (NFP)

Jason R. Chilafoe v. State of Indiana (NFP)

Damian A. Rosales v. State of Indiana (NFP)

Paul Patterson v. State of Indiana (NFP)

Brien E. Franklin v. State of Indiana (NFP)

Virgil E. Griffin v. State of Indiana (NFP)

Travis W. Britt v. State of Indiana (NFP)

Victor Adamson-Scott v. State of Indiana (NFP)

Kasi Ballew v. State of Indiana (NFP)

Richard E. Dell v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 17, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: New budget bill puts judges' and prosecutors' pay raises in Chief Justice's court

Updating this ILB entry from May 2, and the update from May 8th, Chief Justice Shepard has now posted an order headed "Approval of Salary Adjustment," filed June 16, 2011. The order concludes:

On last December 21 st, Governor Daniels announced that after two years during whichstate salaries were necessarily frozen due to the recession, the state was in a position to "recognize financially the hard work" of state employees by implementing a small pay increase, an adjustment that averaged 1.3 percent. The Director of the State Budget Agency has determined that this 1.3 percent is the equivalent rate applicable to judges and prosecutors.

After considering the question placed before me by HEA 1001 , I conclude like Governor Daniels that the regular operation of law should apply and that the pay of judges and prosecutors should be adjusted according to the statute. After two years of frozen salaries, it is altogether right that the pay raise afforded the state's Executive Branch employees in January should be given to judges and prosecutors and their families this coming July. We expect court revenue will be largely adequate to cover these expenses.

Thus, I give the approval contemplated by HEA 1001.

Posted by Marcia Oddi on Friday, June 17, 2011
Posted to Indiana Courts

Ind. Courts - More on: Chevron and federal administrative agency v. state agency

Updating this ILB entry from June 15th, Ken Kusmer of the AP reports on a brief filed last evening by the US DOJ weighing in on the dispute. From the story:

Justice Department attorneys said U.S. District Judge Tanya Walton Pratt should grant Planned Parenthood’s request for an injunction because the law blocks Medicaid recipients’ freedom to choose the provider of their choice. * * *

“The public interest strongly supports preserving the freedom of choice that Congress conferred,” the brief said.

It was unclear how the last-minute filing would affect the timing of Pratt’s ruling. She has said she intended to rule by July 1.

Planned Parenthood attorney Ken Falk said the brief caught him by surprise.

“I had no idea this was coming,” Falk told the Associated Press Thursday evening.

The brief was consistent with earlier actions by federal administrators for Medicaid, the state-federal health insurance program for low-income and disabled people. Medicaid Administrator Donald Berwick sent a letter to his Indiana counterpart on June 1 saying federal law states beneficiaries can obtain general health services from any qualified provider and the mere fact that Planned Parenthood performs abortions separately does not disqualify it.

Indiana Solicitor General Thomas Fisher, in a final brief filed earlier this week, said the Berwick letter was not final and authoritative because Indiana can appeal his decision. Indiana opposes the injunction because, even though Medicaid doesn’t pay for abortions in most cases, the program may provide indirect funding by subsidizing some of Planned Parenthood’s overhead costs.

However, the Justice Department brief said the letter was indeed authoritative because the Department of Health and Human Services, which administers the Medicaid program, was applying its “longstanding interpretation of the complex and technical Medicaid statute” with the letter, which rejected changes to Indiana’s Medicaid plan to account for the new state law.

“HHS has long taken the position that a state’s criteria for qualification must be related to the provider’s ability to render services and properly bill for those services,” the 23-page brief said.

ILB: The brief itself is 23 pages, and it is accompanied by a 29-page Exhibit setting out the 2004 disapproval of a Maryland plan amendment by the CMS administrator. Here is the entire 52-page filing.

Posted by Marcia Oddi on Friday, June 17, 2011
Posted to Indiana Courts

Thursday, June 16, 2011

Ind. Gov't. - More on: "North Carolina GOP Overrides Veto, Axes Planned Parenthood Funding"

Updating yesterday's ILB entry, Jim Brumm of Reuters writes today:

Planned Parenthood said on Thursday it is considering a legal challenge of North Carolina's decision to eliminate state funds to the organization because it provides abortions.

North Carolina is the third state to restrict funding of the reproductive services group, which performs abortions. The Republican-dominated General Assembly voted on Wednesday to override Democratic Governor Beverly Perdue's budget veto, making the two-year spending plan law.

Officials of the state's two Planned Parenthood affiliates are meeting with their legal team to consider options, said Melissa Reed, vice president of public policy with Planned Parenthood Health Systems, the Raleigh-based affiliate that provides services in 75 counties across the state.

Like Kansas, North Carolina's action does not affect payments by the federal Medicaid health care program for the poor. The third state, Indiana, blocked federal payments as well as state, and Planned Parenthood challenged it in court.

ILB emphasis.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Indiana Government

Ind. Courts - More on "Judges Crack Down On Social Media Use Inside Courtrooms: Juror Caught Tweeting During Court Cases"

The quote from this earlier ILB entry today ended:

If jurors ignore the judge and Tweet anyway, they could be held in contempt of court and put in jail.
Lucky for the jurors that Marion County isn't in Great Britain. From a BBC News UK story today:
Facebook juror sentenced to eight months for contempt.

A juror who contacted a defendant via Facebook, causing a £6m drugs trial to collapse, has been jailed for eight months for contempt of court.

Joanne Fraill had admitted the charge, in the first UK case of its kind.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Indiana Courts

Ind. Gov't. - More on: Allowing cameras in the Indiana Recount Commission’s hearing

Updating this ILB entry from earlier today, here is an ILB entry from Sept. 20, 2007 that begins:

Updating this entry from earlier today titled "Recording ban to end in City-County Building", the ILB has been able to locate two past Indiana Public Access counselor Advisory Opinions on videotaping or photographing public meetings of county councils or planning commissions.

Advisory Opinion 01-FC-48; Alleged Violation of the Indiana Open Door Law by the Hendricks County Council. This is a Sept. 6, 2001 opinion by PAC Anne Mullin O’Connor. The opinion cites Berry v. Peoples Broadcasting Corp., 547 N.E.2d 231, 234 (1989).

Formal Complaint 06-FC-176; Alleged Violation of the Open Door Law by the Michiana Shores Planning Commission. This is a Nov. 13, 2006 opinion by PAC Karen Davis. This opinion also cites Berry.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Indiana Government

Ind. Law - "KKK threatens to sue Martinsville after littering citation"

From the Martinsville Reporter-Times:

MARTINSVILLE— The chief counsel of the Knights of the Ku Klux Klan is threatening to sue Martinsville after the Martinsville Police Department issued a citation to one of its publication's distributors.

According to a police report, the city police department cited Thomas Buhls for littering after he dropped off copies of The Crusader, the Knights’ publication, to businesses near downtown Martinsville at the end of May. * * *

In a letter to Martinsville Police Department Chief Jon Davis, city attorney Roger Coffin and city prosecutor Karey Banfield, Knights chief counsel Jason Robb wrote that the Knights will file a federal lawsuit against the city if Buhls’ citation charge was not dropped.

In the letter dated June 10, Robb wrote that the charge was a clear violation of Buhls’ First Amendment rights.

He wrote that the department stopped Buhls illegally and that, apparently, the city of Martinsville was not aware that passing out literature is protected under the First Amendment. Robb said the incident was clearly in violation of state and federal laws.

“I will not have this city trample over individual’s rights just because it doesn’t like the content of the literature and prevent my client to exercise a well-protected right,” he wrote.

However, Davis said the city has no plans to drop the citation.

It’s already been issued,” he said Tuesday. “We’re not going to dismiss it.”

Here is a Sept. 13, 2009 ILB entry quoting a story from the LCJ that began:
A federal judge has rejected The Courier-Journal's effort to block enforcement of a Louisville anti-litter ordinance the newspaper says violates constitutional protections of free speech and the press.

In an opinion issued Friday, Judge Charles R. Simpson III concluded that "there is little likelihood that the Courier will succeed on the merits of its claims" in a lawsuit the newspaper filed after the Metro Council passed the ordinance in June.

The ordinance, which took effect in August, requires unsolicited print materials to be delivered to a specific place, like a porch or mailbox, rather than tossed on a lawn or driveway.

The ordinance affects anyone delivering fliers or other printed materials, but it was prompted by Courier-Journal advertising supplements. At the time the ordinance was adopted, the newspaper was delivering some 340,000 copies of the supplements weekly.

The ordinance does not apply to the newspaper itself, since it is delivered to subscribers.

In legal documents, the city described the newspaper’s delivery of the ad supplements as a “fly-and-fling method of distribution, accomplished under cover of darkness.

I think there is Indiana case law on advertising inserts or free papers, but can't recall the term used.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Indiana Law

Courts - "Schools May Punish Students for Off-Campus, Online Speech"

This story from Wired, by David Kravets, is the first I've heard of the 3rd Circuit's action re online speech. The somewhat confusing report begins:

Public schools may discipline pupils for their online speech spoken off-campus, a federal appeals court ruled Monday in two long-running cases testing student speech in the online world.

However, in the cases decided Monday, the 3rd U.S. Circuit Court of Appeals said Pennsylvania school districts overreacted and breached the First Amendment rights of two students by disciplining them for mocking their principals online, using computers that were off the campus.

The Philadelphia-based appellate court cautioned that not all off-campus, student speech was protected. It based that conclusion on a 1969 Supreme Court ruling that held student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.”

In that landmark case, the Supreme Court said students had a First Amendment right to wear black armbands to protest the Vietnam War. But that precedent, which addressed on-campus speech, is now being applied to students’ off-campus, online speech four decades later — a conclusion that some members of the court noted was wrong.

[More] Okay, here is more, from How Appealing, with plenty of links.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Courts in general

Ind. Courts - "Experienced Attorneys to Lead Board of Law Examiners and State Public Defender's Office"

Updating yesterday's ILB entry, a press release from the Supreme Court announces:

The Indiana Supreme Court named two accomplished attorneys as agency directors. Bradley W. Skolnik will serve as the State Board of Law Examiners Executive Director and Stephen T. Owens will become the State Public Defender. Chief Justice Randall T. Shepard made the announcement today describing both attorneys “as committed and capable public servants.”

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Indiana Courts

Ind. Decisions - "Justices suspend ex-prosecutor over drug forfeiture"

So reports Tim Evans of the Indianapolis Star.

There is nothing available yet on the Court site, and there has been no press release.

Here is the most recent ILB entry, from Nov. 1, 2010. It is interesting to read it, in light of today's suspension story.

[More] The 10-page order has now been posted:

In the Matter of Mark R. McKinney - It is a per curiam order (without now-Justice David, as he was the hearing officer in the case) that begins:

We find that Respondent, Mark R. McKinney, while serving as a deputy prosecuting attorney, conducted asset forfeiture proceedings in a manner that created a conflict of interest between his duties as a public official and the private gain he realized in the forfeiture proceedings. On numerous occasions when the ethics of the asset forfeiture procedures were called into question, Respondent turned a blind eye and acted to protect his private interest in his continued pursuit of forfeiture property. For this serious attorney misconduct, we find that Respondent should be suspended from the practice of law in this state for 120 days with automatic reinstatement.
From the conclusion:
The Court concludes that Respondent violated the Indiana Professional Conduct Rules by representing the State when the representation could have been materially limited by his own self-interest in receiving compensation as a private attorney from property forfeited in civil forfeiture actions and under CSAs.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 120 days, beginning July 28, 2011. * * *

All Justices concur, except Rucker, J., who concurs in part and dissents in part, and David, J., who did not participate.

Agreeing with the recommendation of the hearing officer that a public reprimand is appropriate in this case, Justice Rucker dissents to the sanction imposed by the majority. Otherwise he concurs in the majority opinion.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - SCOTUS decides today that age must be weighed in interrogations

Here is the coverage by Joan Biskupic, USA TODAY. It begins:

WASHINGTON — By a 5-4 vote, the Supreme Court on Thursday bolstered the rights of young people who are picked up and questioned by police. In a decision that goes to the heart of the longstanding Miranda warnings, the justices said that a suspect's age must be considered when determining whether the suspect believed he was free to leave a room and not respond to officers' questions.
The opinion is J.D.B. v. North Carolina. Here is Lyle Denniston's valuable opinion analysis at SCOTUSblog.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Courts in general

Law - "Advances, setbacks, and continuing impediments to government transparency"

Long, informative, link-rich blog entry here, from Andy Oram, an editor at O'Reilly Media.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to General Law Related

Ind. Decisions - 7th Circuit rules on federal air pollution issue

The 8-page opinion by Chief Judge Easterbrook is NRDC v. US EPA. A quote:

Wisconsin’s latest implementation plan includes features from the 2002 federal regulations. The EPA approved Wisconsin’s plan. 72 Fed. Reg. 19,829 (Apr. 20, 2007); 73 Fed. Reg. 76,560 (Dec. 17, 2008); 75 Fed. Reg. 10,415 (Mar. 8, 2010) (denying petition for reconsideration). The NRDC and the Sierra Club have filed petitions for review, which repeat arguments that failed to persuade the D.C. Circuit in New York. This proceeding is the first challenge to a specific state plan that implements the 2002 changes; one other is pending in the Sixth Circuit, and perhaps more are in the works.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Court ruling on wage scale could have statewide impact"

Yesterday's NFP Court of Appeals opinion in The Board of Commissioners in County of Allen, Commissioner Linda K. Bloom, et al. v. Northeastern Indiana Building Trades Council, et al. is the focus of a long story today in the Fort Wayne News-Sentinel, reported by Kevin Leininger. Some quotes:

In a ruling that could have statewide implications, the Indiana Court of Appeals on Wednesday upheld a local judge's ruling that Allen County officials used incomplete data when they established a below-union-wage scale for a renovation project two years ago.

Under the state's “common wage” law, local and state governments were required to establish a minimum-wage scale for construction projects costing at least $150,000. Preparing for the $850,000 renovation of the Keystone Building on South Calhoun Street, County Commissioners selected wages submitted by the Associated Builders and Contractors, which represents non-union “merit shops” and claims its wages can cut a project's cost by 30 percent.

But the Northeastern Indiana Building and Construction Trades Council and others fought the decision in court, insisting that union pay scales represent the most “common” wages in Allen County and that the ABC's wages relied on “hearsay” evidence contained in surveys submitted by non-union contractors. * * *

The General Assembly this year passed a law intended to increase the threshold of projects requiring the establishment of a “common wage” to $250,000, then $350,000 starting in 2013. But because of a drafting error, officials have said, all construction projects will require such determinations between July and Jan. 1. Neumeister did not know whether the new law might make the ABC's method of determining wages more acceptable in the future.

Here is an ILB entry from June 9th on the "drafting error."

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Ind. App.Ct. Decisions

Law - "WestlawNext: Pros and Cons and General Comments from Law Librarians"

The Law Librarian Blog has this useful entry today.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to General Law Related

Ind. Courts - "Tow companies accuse city of collusion, favoritism in awarding bids"

Updating earlier ILB entries, including this one from May 18th headed "Proposed city ordinance to target "predatory" towing practices," and this one from Feb. 4th headed "More on: Indiana Law on towing of vehicles left on private property," a story and video late yesterday from Fox59 News, by Eva Pilgrim, that begins:

The controversy surrounding towing in Indianapolis continues. Tow truck companies recently filed a lawsuit against the city saying the city is playing favorites. * * *

According to a complaint filed in court, the city did just that and a whole lot more. Eddie Wheeler has worked with the city for 29 years. Wednesday, he and Indy Towing were in court arguing the bid process for the city's towing isn't fair.

Here are the initial filings:According to the story:
Judge David Shaheed has put a stop for now to keep those contracts going forward until he can make a decision on this case. The two sides will be back in court on June 28.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Indiana Courts

Law "The Rise of the Temp Lawyer"

Vanessa O'Connell has this entry in the WSJ Law Blog, referencing her two articles today in the WSJournal itself (which may or may not be available to nonsubscribers ...), "Lawyers Settle... for Temp Jobs: As clients seek to cut costs, the field of 'contract' attorneys expands," which is available to subscribers here, and "New Work Rules for Temp Lawyers," available here.

From the blog entry:

Indebted law grads and experienced lawyers who are out of work are moving into what we describe today as the “third tier” of the legal profession: working as temps, generally known as contract attorneys, performing document review work. * * *

These contract lawyers, who sometimes call themselves “coders,” read and review huge volumes of electronic documents in complex cases. Their work is critical in the pre-trial, discovery phase of litigation and in many investigations.

Until recently, document review work often was done offshore in India. But it’s increasingly performed by U.S. lawyers, at pay ranging from $20 to $40 an hour.

This is pretty sad, and should serve as an alert to those thinking about law school ...

[More] Also take a look at this, from Staci Zaretsky of Above the Law.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In T.R. v. Review Board , an 11-page opinion with a pro se appellant, Chief Judge Robb writes:

T.R. appeals pro se the decision by the Indiana Department of Workforce Development Review Board (“Review Board”) affirming the finding by the Administrative Law Judge (“ALJ”) that T.R. left her employment without good cause, thereby terminating her unemployment benefits. T.R. raises two issues which we restate as whether she was denied due process, and whether the ALJ’s finding that T.R. voluntarily left her employment without good cause is supported by the evidence. Concluding that T.R. was afforded due process and the ALJ’s findings are supported by the evidence, we affirm. * * *

The issue of due process in unemployment benefits cases often arises when one party alleges inadequate notice of a hearing, but the case before us is quite different. T.R. acknowledges having received actual notice and instead argues she was denied due process because she was not called to participate in the hearing – the ALJ stated T.R. failed to return her participation sheet, which would have contained her phone number. T.R. contends that a postal service error led to her failure to return the participation sheet. She does not explain what this error was or possibly could have been if she knows, but insists she mailed it in and notes that when she did not receive a phone call at the scheduled time for the hearing she called the DWD immediately, in an attempt to connect to the hearing if it were already in progress.

NFP civil opinions today (0):

NFP criminal opinions today (7):

Luciano Torres v. State of Indiana (NFP)

Ralph L. Smith v. State of Indiana (NFP)

Eric Bell v. State of Indiana (NFP)

Brandon Livers v. State of Indiana (NFP)

Michael E. Cooper v. State of Indiana (NFP)

Kathleen M. Brockman v. State of Indiana (NFP)

Douglas Boston v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Judges Crack Down On Social Media Use Inside Courtrooms: Juror Caught Tweeting During Court Cases"

From 6News:

The Indiana Supreme Court has ordered trial courts to give strict instructions that jurors are not to use cellphones, laptops or electronic communication devices in the courtroom. But the use of Twitter and other social networks is becoming so ingrained in the culture that some are ignoring those instructions, 6News' Derrik Thomas reported.

Defense attorney David Hennessy thinks that social media use inside the courtroom will bias the outcome of the case.

"I don't like the idea of them using (social media). Because if (jurors) are willing to use it and send out information when they have been told not to, I suspect they will be investigating on their own looking for news articles on the case, receiving information from unreliable sources. That will greatly concern me," Hennessy said.

If jurors ignore the judge and Tweet anyway, they could be held in contempt of court and put in jail.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Indiana Courts

Ind. Gov't. - Even more on: Charlie White seeks to ban cameras from recount commission hearing

Updating yesterday's ILB entry, Stephen Key, Hoosier State Press Association, writes today for the IndyStar's opinion blog:

Allowing cameras in the Indiana Recount Commission’s hearing on Secretary of State Charlie White’s eligibility to hold that office is the right decision.

Indiana’s Open Door Law clearly gives the public the right to “observe and record” meetings of governing bodies of state and local public agencies. The Indiana Supreme Court upheld that right in its 1989 decision in Berry v. Peoples Broadcasting Corp., where the court said cameras and tape recorders could not be banned from public meetings. * * *

The public’s right to know whether one of the top elected officials should be removed from office, overturning the election result, trumps the uneasiness witnesses may experience knowing their testimony is being videorecorded.

The issue is of interest to Hoosiers from Angola to Evansville, but not everyone can make the trip to Indianapolis for next week’s hearing. Media coverage and Internet streaming of the hearing will allow all citizens to view the proceedings if they wish.

Being able to see the participants, whether it be commission members, witnesses or attorneys involved, allows Hoosiers to make their own judgments about the motivation behind the hearing, the truthfulness of witnesses, or impartiality of the commission.

Here is the 1989 Indiana Supreme Court opinion in Berry v. Peoples Broadcasting Corp.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Indiana Government

Ind. Gov't. - "Secretary of state's mom plans to sue his prosecutors"

Here is today's story from Robert Annis of the Indianapolis Star.

Posted by Marcia Oddi on Thursday, June 16, 2011
Posted to Indiana Government

Wednesday, June 15, 2011

Law - "Computer crash wipes out access to Missouri laws"

From the AP, this brief story:

JEFFERSON CITY, Mo. (AP) — Missouri's laws are missing — at least for people who are looking online.

A computer server that hosted the Missouri General Assembly web site crashed last week and remained down Tuesday.

The web site featured a searchable list of Missouri's laws and its constitution, as well as financial estimates for legislation.

Sandy Lueckenhoff is the assistant director for the Committee on Legislative Research to which the computer server belonged. She says there was no backup server — and her office has fielded plenty of complaints from people unable to research state laws.

Lueckenhoff says the computer failure may have been triggered by electrical work at the Capitol.

An online message says the site will be restored by the end of the week. But Lueckenhoff said that could take until Monday.

Hmmm....

Posted by Marcia Oddi on Wednesday, June 15, 2011
Posted to General Law Related

Ind. Gov't. - "North Carolina GOP Overrides Veto, Axes Planned Parenthood Funding"

From the Huffington Post, the story, reported by Laura Bassett, begins:

Republican state representatives in North Carolina voted to override Democratic Gov. Bev Perdue's veto of the state budget Wednesday morning, ensuring that a provision to strip all federal and state money from Planned Parenthood will take effect on July 1. North Carolina is now the third state, after Indiana and Kansas, to defund the family planning provider because it also provides abortions.

Posted by Marcia Oddi on Wednesday, June 15, 2011
Posted to Indiana Government

Ind. Courts - New public defender named

Updating this ILB entry from March 11, 2011, the ILB has learned that Steve Owens is the new state Public Defender. Steve's been a deputy and chief deputy in the PD office for well over 20 years.

Posted by Marcia Oddi on Wednesday, June 15, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

The Board of Commissioners in County of Allen, Commissioner Linda K. Bloom, et al. v. Northeastern Indiana Building Trades Council, et al. (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Wednesday, June 15, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Wisconsin Supreme Court reinstates collective bargaining law"

The battle over the new Wisconsin collective bargaining ban seems finally at an end -- ILB readers may recall that the law had been challenged on a procedural technicality, that the Wisconsin legislature had not complied with the state's open meetings law notice requirement. Yesterday the Wisconsin Supreme Court wrote in part in a 68-page opinion (the main opinion is 9 pp.):

It has been argued to the court that the legislature amended Article IV, Section 10 of the Wisconsin Constitution by its enactment of the Open Meetings Law. That argument is without merit. Article XII, Section 1 of the Wisconsin Constitution establishes the requirements that must be met in order to amend the Wisconsin Constitution through action initiated in the legislature. Article XII, Section 1 requires that both houses of the legislature pass the proposed amendment in two successive sessions of the legislature, and then the proposed amendment must be submitted to the people. It is only when the people have approved and ratified a proposed amendment initiated in the legislature that a constitutional amendment occurs. * * *

It also is argued that the Act is invalid because the legislature did not follow certain notice provisions of the Open Meetings Law for the March 9, 2011 meeting of the joint committee on conference. It is argued that Wis. Stat. § 19.84(3) required 24 hours notice of that meeting and such notice was not given. It is undisputed that the legislature posted notices of the March 9, 2011 meeting of the joint committee on conference on three bulletin boards, approximately 1 hour and 50 minutes before the start of the meeting. In the posting of notice that was done, the legislature relied on its interpretation of its own rules of proceeding. The court declines to review the validity of the procedure used to give notice of the joint committee on conference. See Stitt, 114 Wis. 2d at 361. As the court has explained when legislation was challenged based on allegations that the legislature did not follow the relevant procedural statutes, “this court will not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments.” Id. at 364. “[W]e will not intermeddle in what we view, in the absence of constitutional directives to the contrary, to be purely legislative concerns.” Id. The court’s holding in Stitt was grounded in separation of powers principles, comity concepts and “the need for finality and certainty regarding the status of a statute.”[Emphasis added by ILB]

[ILB: I feel safe in opining that our Supreme Court likely would have come to the same decision, based on our Indiana precedents.]

Here is the story from the Milwaukee Journal Sentinel, reported by Patrick Marley and Don Walker. Interesting item from the very long story:

The ruling came on lines that have become familiar in recent years for the often divided court.

The majority opinion was by Justices Michael Gableman, David Prosser, Patience Roggensack and Annette Ziegler. The other three justices - Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks - concurred in part and dissented in part. Abrahamson's dissent was particularly stinging as she upbraided her fellow justices for errors and faulty analysis.

Posted by Marcia Oddi on Wednesday, June 15, 2011
Posted to Courts in general

Ind. Gov't. - Still more on: Charlie White seeks to ban cameras from recount commission hearing

Updating Monday's ILB entry, Carrie Richie reports today in the Indianapolis Star under the headline: "Cameras allowed for White hearing." From the story:

The commission voted not only to allow TV cameras, but also to stream the hearing on the Internet.

Posted by Marcia Oddi on Wednesday, June 15, 2011
Posted to Indiana Government

Courts - "Dictionary Citations by SCOTUS Justices Rise Sharply"

Adam Liptak has a great column yesterday in the NY Times about Supreme Court justices citing dictionary entries as authority. Some quotes:

All of this is, lexicographers say, sort of strange.

“I think that it’s probably wrong, in almost all situations, to use a dictionary in the courtroom,” said Jesse Sheidlower, the editor at large of the Oxford English Dictionary. “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.”

J. Gordon Christy, a professor at the Mississippi College School of Law, surveyed the scene in 2006, and he did not like what he saw. “We are treated,” Mr. Christy wrote in The Mississippi Law Journal, “to the truly absurd spectacle of august justices and judges arguing over which unreliable dictionary and which unreliable dictionary definition should be deemed authoritative.” * * *

A new study in The Marquette Law Review found that the justices had used dictionaries to define 295 words or phrases in 225 opinions in the 10 years starting in October 2000. That is roughly in line with the previous decade but an explosion by historical standards. In the 1960s, for instance, the court relied on dictionaries to define 23 terms in 16 opinions.

Justices Oliver Wendell Holmes Jr., Benjamin N. Cardozo and Louis D. Brandeis managed to make it through distinguished careers on the Supreme Court without citing dictionaries.

Learned Hand, widely considered the greatest judge never to have served on the Supreme Court, cautioned against the mechanical examination of words in isolation.

“It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary,” Judge Hand wrote in a 1945 decision, “but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” * * *

The case for using dictionaries to determine the meaning of modern statutes is weaker, in part because the materials consulted by the people who compile definitions can skew the results. A 1988 survey of the lexicographic staffs of five publishers concluded that “the ‘polite press,’ with The New York Times at its pinnacle” is “the single most powerful influence in constituting the record of the English lexicon.”

A decade later, Ellen P. Aprill, who teaches at Loyola Law School in Los Angeles, considered the implications of that finding in an article on “dictionary shopping in the Supreme Court.”

“It may also be a surprise to the Supreme Court justices who look to dictionaries as authorities in construing statutes,” Ms. Aprill wrote in the Arizona State Law Journal, “that in good measure they are interpreting law according to The New York Times.”

Posted by Marcia Oddi on Wednesday, June 15, 2011
Posted to Courts in general

Ind. Courts - Chevron and federal administrative agency v. state agency [Updated]

Updating earlier ILB entries, interesting legal issues are developing in the Indiana Planned Parenthood case, per this story by AP reporter Ken Kusmer. Recall this quote from a June 6th IndyStar story:

Pratt seemed to focus on how much weight to give the memo from federal Medicaid officials. She asked both parties to submit over the next 10 days their take on past case law about whether the federal government’s interpretation of federal law should take priority over other interpretations.
From Kusmer's story today:
INDIANAPOLIS (AP) — A federal judge received final arguments Tuesday in Planned Parenthood of Indiana's request to block a tough new abortion law that makes Indiana the first state disqualifying the organization from providing general health services under Medicaid and taking away $1.4 million of its public funding. * * *

Pratt has said she would rule before July 1, but at a hearing June 6 indicated she hoped to rule before Monday, the day Planned Parenthood has said it anticipates running out of donations that have funded care for Medicaid clients since Gov. Mitch Daniels signed the law last month.

A nine-page brief submitted by Planned Parenthood attorney Ken Falk of the American Civil Liberties Union argued the judge should defer to Medicaid Administrator Donald Berwick. Berwick sent a letter to his Indiana counterpart on June 1 saying federal law states beneficiaries can obtain general health services from any qualified provider and the mere fact that Planned Parenthood performs abortions separately does not disqualify it from the state-federal health insurance program for needy and disabled people.

Indiana Solicitor General Thomas Fisher, in his final, eight-page brief filed Monday, said Berwick's letter was "merely the first step" in a lengthy process that could last months over whether Indiana can legally disqualify Planned Parenthood.

Falk has said the law made Indiana the first state to deny Medicaid funds to Planned Parenthood for general health services.

Pratt, during June 6 oral arguments on the injunction, asked Fisher and Falk to file briefs on a legal test known as the Chevron deference that comes from the Supreme Court ruling in Chevron v. Natural Resources Defense Council. Chevron deference generally means that judges do not substitute their own interpretation of agency rules for a reasonable interpretation made by the agency.

Fisher said in his brief that the Berwick letter was not final and authoritative because Indiana can appeal his decision. Indiana opposes the injunction because even though Medicaid doesn't pay for abortions in most cases, the program may provide indirect funding by subsidizing some of Planned Parenthood's overhead costs.

Falk argued in his brief that the letter entitled Berwick to deference.

The ILB hopes to post these briefs re Chevron deference, a familiar principal in environmental law cases. Plus, another familiar principal is being cited here -- exhaustion of administrative remedies ...

[Updated] Okay, here they are:

Posted by Marcia Oddi on Wednesday, June 15, 2011
Posted to Indiana Courts

Ind. Law - "St. Joseph County prepares for new Indiana gun law"

Implementing SEA 292, the new law, effective July 1, that preempts local firearms legislation, was the topic discussed by St. Joe county commissioners yesterday, per this story by Kevin Allen of the South Bend Tribune. Some quotes:

Commissioner Andy Kostielney said it appears the 14-story [City-County] building, which houses offices for both the county and South Bend, will fall under the exemption for courts, because an underground walkway connects it with the neighboring county courthouse.

But even if that exemption applies, Kostielney said, county leaders will need to change who operates the metal detector at the building’s entrance.

The new law requires at least one law enforcement officer to man such equipment. Kostielney said the county currently hires a private security firm to do that job at County-City Building, the County Services Building in Mishawaka and the Juvenile Justice Center.

"If it does end up that we would have to have sworn officers at each of those buildings," he said, "it would be a significant cost."

All other public buildings in Indiana still would be allowed to maintain metal detectors at their public entrances, even if the buildings aren’t covered by one of the exemptions. Officials just wouldn’t be allowed to prevent people with licenses to carry firearms from entering those buildings.

Posted by Marcia Oddi on Wednesday, June 15, 2011
Posted to Indiana Law

Tuesday, June 14, 2011

Environment - "Purdue Libraries digitize 'Indiana Farmer' issues"

This is cool. WTRH is reporting:

WEST LAFAYETTE - A project that's digitized an early Indiana farming publication is giving researchers a glimpse into the 19th century mindset of agriculture.

Purdue University Libraries recently finished digitizing all of the issues of "Indiana Farmer" from the years 1851 to 1917. The issues chronicle Indiana agriculture during and after the Civil War era. The collection will become part of the Indiana Memory project.

Access the digital Indiana Farmer 1851-1917 here.

See also the great links under Resources.

Posted by Marcia Oddi on Tuesday, June 14, 2011
Posted to Environment

Courts - "CA Court Says Bar Exam Information Not Protected"

Kate Moser reports in The Recorder in a story that begins:

SAN FRANCISCO — A California appeal court breathed new life today into a law professor's long-running quest for access to California State Bar admissions records.

The First District Court of Appeal panel reversed a ruling by San Francisco Superior Court Judge Curtis Karnow that the documents sought are shielded from public disclosure.

"The Bar is a public corporation and the records sought related to its official function of administering the bar exam, a matter of legitimate public interest," wrote Justice Peter Siggins in the 3-0 decision.

But the court didn't go so far as to order the State Bar to hand over the data sought by UCLA School of Law professor Richard Sander — including the race, academic records and bar exam scores of California bar exam-takers over the past 35 years.

The panel kicked back to the trial court the question of whether the State Bar should release the data. The trial court, the panel decided, is best suited to perform a balancing test on whether privacy interests and the burden on the State Bar outweigh the "strong public policy favoring openness in public affairs."

Posted by Marcia Oddi on Tuesday, June 14, 2011
Posted to Courts in general

Courts - "NY Appeals Court Clarifies MERS Role in Foreclosures"

Here is the intro to an article today by Brendan Pierson of the New York Law Journal:

The ubiquitous Mortgage Electronic Registration Systems, nominal holder of millions of mortgages, does not have the right to foreclose on a mortgage in default or assign that right to anyone else if it does not hold the underlying promissory note, the Appellate Division, Second Department, ruled Friday.

"This Court is mindful of the impact that this decision may have on the mortgage industry in New York, and perhaps the nation," Justice John M. Leventhal wrote for a unanimous panel in Bank of New York v. Silverberg, 17464/08. "Nonetheless, the law must not yield to expediency and the convenience of lending institutions. Proper procedures must be followed to ensure the reliability of the chain of ownership, to secure the dependable transfer of property, and to assure the enforcement of the rules that govern real property."

The opinion noted that MERS is involved in about 60 percent of the mortgages originated in the United States.

Here is more.

Here, if this works, is the opinion itself:

Bank of New York v. Silver Berg w

Posted by Marcia Oddi on Tuesday, June 14, 2011
Posted to Courts in general

Ind. Decisions - Not Indiana case, but important wetlands and standing opinion from 7th Circuit today

In American Bottom Conservancy v. U.S.Army Corps of Engineers, et al. (SD Ill.), an 18-page opinion, including 2 pages of maps, Judge Posner writes:

The “American Bottom” is a 175- square-mile floodplain of the Mississippi River in southwestern Illinois, across the river from St. Louis. The area contains wetlands (water-saturated soil) that provide habitat for many different species of birds, butterflies, and other wildlife. The American Bottom Conservancy is an environmental organization that seeks to preserve the wetlands. Its members include birdwatchers and other people who enjoy seeing wildlife in the wild.

Waste Management of Illinois, Inc., owns and operates a landfill in the American Bottom that it calls the “Milam Recycling and Disposal Facility.” The landfill, located near the town of Madison, Illinois, is due east of St. Louis and southwest of a state park that contains a large lake—the largest in Illinois, after Lake Michigan. It is called Horseshoe Lake because of its shape (see the first map at the end of this opinion; the maps, though based on the record, are approximations).

Because the Milam landfill is filling up with waste from St. Louis, Waste Management wants to build another landfill—the “North Milam Recycling and Disposal Facility”—on 180 acres of a 220-acre tract (“North Milam”) that it owns just north of the Milam RDF; the tract is thus located between that landfill and the state park. The shortest distance from the site of the proposed new landfill to the park’s southern boundary is between a quarter of a mile and half a mile.

The 220-acre tract contains five wetland areas. Almost all of them are in the center and northern parts of the tract, about half a mile from the southernmost part of the state park; and that is the part to which bird- and other wildlife-watchers gravitate because it’s away from the park’s picnic tables and other clutter, which are near the lake. (The clutter is marked with Xs on the first map.)

Obtaining permission to build a new landfill, and building it, will take time. In the meantime Waste Management wants to remove the soil from some of the wetlands and transport it to its existing landfill to cover layers of waste as they are piled atop that landfill (“daily cover,” as this layering is called). The consequence will be to transform the wetlands into a dry “borrow pit.”

The wetlands occupy 26.8 acres of the tract and Waste Management wants to destroy 18.4 of them (69 percent). But to destroy wetlands it needed a permit from the Army Corps of Engineers. 33 U.S.C. §§ 1311(a), 1344(a), 1362(7); 40 C.F.R. § 230.3(s)(7). The Corps granted the permit on condition that Waste Management create double the amount of wetlands on a nearby tract that it owns that we have marked as the “proposed mitigation area” on the second map. The company accepted the condition.

Once the existing landfill reaches capacity, Waste Management wants to replace it with the new landfill that it seeks to build in the North Milam tract. The Corps of Engineers doesn’t authorize landfills. To build the North Milam landfill, Waste Management needs the permission of the Illinois Environmental Protection Agency. 415 ILCS 5/21(d), 5/39(a); 35 Ill. Admin. Code §§ 807.201, 807.202(a); Community Landfill Co. v. Pollution Control Board, 772 N.E.2d 231, 234 (Ill. App. 2002). The company applied for that permission fifteen months after it had applied to the Corps for the permit to destroy the 18.4 acres of wetlands. Apparently the landfill would not require the destruction of additional wetlands; otherwise Waste Management would have applied for a broader permit.

The application for permission to build the new landfill is pending. But Waste Management won’t have to—and won’t—wait for it to be granted before destroying the wetlands, since it has to do that anyway in order to obtain daily cover for its existing landfill. American Bottom Conservancy brought this suit to invalidate the permit granted by the Corps of Engineers. The court dismissed the suit without prejudice on the ground that the Conservancy had not established standing to sue under Article III of the Constitution and therefore the suit did not invoke the district court’s jurisdiction. The only issue before us is the Conservancy’s standing.

[ILB: What follows thereafter is a lengthy, valuable discussion of standing by Judge Posner. The Court finds standing.] * * *

The judgment is reversed with instructions to reinstate the suit.

Posted by Marcia Oddi on Tuesday, June 14, 2011
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (3):

In Elmos Jewell v. City of Indianapolis , an opinion that requires careful reading, Judge Friedlander writes:

The pertinent facts in this case are essentially undisputed. The City alleged that Jewell violated five city ordinances concerning animals kept on his property. He and the City negotiated an agreement whereby he would admit violating one of the ordinances in exchange for the City’s agreement to drop the remaining allegations. The ordinance upon which the lone remaining allegation was based, i.e., § 531-401, prohibited neglect and mistreatment of animals in a variety of specific ways. The parties agreed that the sanction for the violation would be three-fold: Jewell (1) would pay a civil fine and costs, (2) agreed that he would not keep an animal at large in the City of Indianapolis, and (3) agreed “to be permanently enjoined from neglecting or mistreating an animal kept by him or from otherwise violating Sec. 531-401.” Appellant’s Appendix at 32. This agreement was reduced to writing and submitted to the trial court for approval. Sometime after an order was entered approving the terms of the agreement, Jewell was charged with violating § 531-728. The relevant portion of that provision places additional restrictions upon persons who have previously been found in violation of, among other provisions, § 531-401. It is at this point that the parties’ views diverge. We believe this disagreement can be reduced to a single question – did the failure to mention § 531-728 in the Agreed Judgment indicate that the City waived enforcement of that provision? We conclude that it did not. * * *

Jewell argues that the ordinances specifically cited or referred to in the Agreed Judgment are the only ones the City may enforce as to Jewell via application of the legal maxim expressio unius est exclusio alterius. This Latin phrase is a canon of construction pursuant to which the express inclusion of certain things implies the exclusion of all else. * * *

We agree that this maxim is sometimes of questionable utility in discerning intent and that context determines whether it is applicable at all. In this case, context dictates that the maxim does not apply. * * *

Considering the context in which it was created, the Agreed Judgment should be understood first and foremost as the resolution of particular allegations against Jewell relating to animals kept by him on his property in Indianapolis. Viewed in this light, the specific references to § 531-401 and to the prohibitions against allowing his animals to be at 11 large in Indianapolis and against neglecting or mistreating his animals should be understood merely as underscoring the importance of his compliance with those particular provisions that he has heretofore violated. We perceive no indication that the City intended that it be, nor should it be understood as, an agreement on the part of the City to limit its right to enforce against Jewell only those city ordinances mentioned in the Agreed Judgment.

In State of Indiana v. Robert Rhodes , an 8-page opinion, Judge Crone writes:
Robert Rhodes took a friend to pick up his vehicle, which had been towed. An employee of the towing company felt that Rhodes was belligerent and possibly drunk, so he called an officer who was working off duty across the street. When Rhodes left the towing company’s property, the officer followed Rhodes for a short distance and then initiated a traffic stop. As a result, Rhodes was charged with operating while intoxicated. Rhodes filed a motion to suppress evidence, arguing that the stop was unlawful. The State argued that the officer had two valid reasons to stop Rhodes: (1) the officer observed Rhodes make a turn without signaling far enough in advance, and (2) the call from the towing company gave the officer reasonable suspicion that Rhodes was operating while intoxicated. The trial court found that the State had not established either ground and granted the motion to suppress. We affirm.
In T.L. v. J.L. , a 23-page opinion, Chief Judge Robb writes:
T.L. (“Mother”) filed a notice of intent to relocate from Indiana to Tennessee with her two sons, ten-year-old J.B.L. and seven-year-old B.L. J.L. (“Father”) objected and filed a motion to prevent relocation of the children, which the trial court granted following an evidentiary hearing. Mother appeals and raises three issues for our review, which we consolidate and restate as whether the trial court‟s judgment is clearly erroneous. Concluding that Mother has shown good faith and legitimate reasons for proposing the relocation, but the trial court did not clearly err in finding that relocation was not in the children‟s best interests, we affirm. * * *

We conclude that Mother‟s proposed relocation of the children to Tennessee was in good faith and for legitimate reasons. However, the evidence supports the trial court‟s conclusion that relocation was not in the children‟s best interests. As a result, the trial court‟s grant of Father‟s motion to prevent relocation of the children is not clearly erroneous, and we therefore affirm the trial court‟s judgment.

NFP civil opinions today (3):

Karen Vanderbosch v. Thomas Vanderbosch (NFP)

Mark Rector Bryan v. Tammy A. Bryan (NFP)

Superior Mortgage Funding, LLC, Jeremie Sheneman, Michael Sheneman and Andrew Beam v. Gladys Zoleko and Paul Davies (NFP)

NFP criminal opinions today (5):

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

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

James D. Bailey, Jr. v. State of Indiana (NFP)

Purnell L. Moore v. State of Indiana (NFP)

Elizabeth Noll v. State of Indiana (NFP)

James D. Douglas v. State of Indiana (NFP)

David Marsee v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 14, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides two today

In Alva Curtis v. State of Indiana, a 14-page, 5-0 opinion, Justice David writes:

We hold that pending criminal charges do not violate a defendant‘s right to due process if (1) the trial court has not involuntarily committed the defendant and (2) the trial court has not made an appropriate finding that the defendant will never be restored to competency. We also hold that, under the facts of this case, the defendant has forfeited his constitutional speedy-trial claims but that the trial court should have granted the defendant‘s motion to dismiss and discharge under Indiana Criminal Rule 4(C). * * *

In his appellate brief, Curtis raised constitutional speedy-trial, Criminal Rule 4(C), and due process claims. The Court of Appeals found that the pending criminal charges violated Cur-tis‘s right to due process. Curtis v. State, 932 N.E.2d 204, 208 (Ind. Ct. App. 2010). Accordingly, the Court of Appeals reversed and remanded with instructions to dismiss the charging infor-mation. Id. at 210. The court did not address the constitutional speedy-trial and Criminal Rule 4(C) issues. We granted transfer. * * *

Curtis has waived his constitutional speedy-trial claims and does not have a valid due process claim on fundamental-fairness grounds. Curtis is however entitled to dismissal under Indiana Criminal Rule 4(C). Accordingly, we reverse the judgment of the trial court and remand with instructions to dismiss the charging information.

In Douglas Denzell v. State of Indiana, a 4-page, 5-0 opinion, Justice David writes:
Denzell‘s appellate reply brief and petition to transfer focus heavily on the Court of Appeals decision in Curtis v. State, 932 N.E.2d 204 (Ind. Ct. App. 2010), trans. granted. In Curtis, the Court of Appeals found that the pending criminal charges violated the defendant‘s due process rights despite the facts that (1) the trial court had not found the defendant incompetent under the mandated statutory procedures and (2) the trial court had never committed the defendant. Id. at 207–08. As reflected in Curtis v. State, No. 49S02-1010-CR-620, __ N.E.2d __ (Ind. June 14, 2011), we disagree and find no due process violation in that case in light of the relevant precedent—namely, State v. Davis, 898 N.E.2d 281 (Ind. 2008)—and the various interests at stake.

Although the facts of Denzell‘s case differ from the facts of Curtis, the relevant precedent and interests at stake are the same. As the Court of Appeals noted, there has been no determination that Denzell will never be restored to competency. Denzell, 935 N.E.2d at 1248. In fact, the record not only reflects that Denzell can be restored to competency but also reveals that Denzell stopped taking his medications once he discovered he would return to court. It would be counterintuitive to allow a defendant to assert a due process violation based on incompetency if the defendant himself purposely decompensated to avoid going to court. Accordingly, Denzell does not have a viable fundamental-fairness argument. * * *

In all other respects, we summarily affirm the opinion of the Court of Appeals, under which the trial court‘s denial of Denzell‘s motion to dismiss is affirmed. Ind. Appellate Rule 58(A)(2).

Posted by Marcia Oddi on Tuesday, June 14, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Annual list of lawyers suspended for failing to pay registration fees or comply with CLE requirements

Updating this ILB entry from yesterday, the annual Order of Suspension of Certain Attorneys, etc.; filed May 26, 2011, has now been posted online by the Court.

It is a scanned document.

The ILB is preparing a searchable version, which I will post here shortly.

[More] Okay, here it is. Unfortunately, it is not perfect, because the text recognition itself is not perfect. And the ALL-CAPS format of the document doesn't help. The first name I looked for, that I knew was on it, did not show up. It wasn't until I found the name manually, then cut and pasted the name, that I could see the OCR program had turned "IL" within the name to "ll". So use the search function, but if the name you are seeking does not turn up, look manually.

Posted by Marcia Oddi on Tuesday, June 14, 2011
Posted to Indiana Courts

Ind. Decisions - Second amicus brief filed in Barnes case

A second amicus brief has been filed, "in support of appellant's petition for rehearing," in the now much-discussed 5/12/11 Indiana Supreme Court opinion in Barnes v. State. From the brief, re the interest of amici curiae:

Amici are scholars in the area of criminal law and procedure. Amici submit this brief to aid the Court on certain issues in this case which have broad implications for the law of Indiana and other jurisdictions.
Other relevant documents are available in these earlier ILB entries:The State has until Monday, June 27 to file a response brief.

Posted by Marcia Oddi on Tuesday, June 14, 2011
Posted to Ind. Sup.Ct. Decisions

Monday, June 13, 2011

Ind. Gov't. - More on: Charlie White seeks to ban cameras from recount commission hearing

The State Recount Commission is meeting tomorrow, apparently to take care of items preliminary to its hearing next Tuesday, June 21st.

The ILB has just received the agenda and a number of documents for tomorrow's meeting:

Posted by Marcia Oddi on Monday, June 13, 2011
Posted to Indiana Government

Courts - Writing hints from the Justices of the SCOTUS

NPR's Nina Totenberg had a great, over 5-minute story this morning, based on "a series of interviews conducted with the justices in 2007" by Bryan Garner. Now you may read (or listen to) not only Totenberg's report, but the interviews themselves, in full, and in transcript, from links Ms. Totenberg has provided. Also in the case of the justices, there are videos.

Posted by Marcia Oddi on Monday, June 13, 2011
Posted to Courts in general

Ind. Courts - Annual list of lawyers suspended for failing to pay registration fees or comply with CLE requirements

Last year on May 18th the ILB posted this entry, linking to the then recently-posted (5/14/10) annual list of lawyers suspended for failing to pay registration fees or comply with CLE requirements.

The 2009 and 2010 orders I have access to contain this language (my emphasis, this is from the 2009 order):

Although the suspension is effective as of the date of this order for purposes of the reinstatement procedures that must be followed and/or any reinstatement fees that must be paid for reinstatement, the Court directs that the proscription against the actual practice of law will go into effect at 11:59 p.m. on Thursday, June 4, 2009.
I'm told that the proscription this year will go into effect June 20th, 2011. However, unlike past years, the ILB has not been able to locate the 2011 Order of Suspension online.

Queries from some ILB readers lead me to believe that the names of those on the list have already been flagged on the Roll of Attorneys, with this indicator:

Status: Suspension Pending, Effective 06/20/2011
Status Date: 05/26/2011

Posted by Marcia Oddi on Monday, June 13, 2011
Posted to Indiana Courts

Ind. Gov't. - "State Rejects Tax Credits For Planned Parenthood"

That is the heading to this news release today from Planned Parenthood of Indiana. A quote:

In a June 1 letter from the Indiana Housing and Community Development Authority (IHCDA) to PPIN President and CEO Betty Cockrum, the State claims its application denial is based on HEA 1210, the new state law that strips Medicaid funding from PPIN, and which the non-profit is fighting in U.S. District Court.

Posted by Marcia Oddi on Monday, June 13, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In Antwon Abbott v. State of Indiana , a 14-page opinion, Judge Mathias concludes:

The trial court did not err in admitting evidence found as a result of the search warrant issued to search Abbott's body, and the school-zone enhancement statute is not unconstitutionally vague as applied to Abbott. Lastly, Abbott's twenty-year sentence is not inappropriate in light of the nature of the offense and the character of the offender. Affirmed.
In The City of Boonville v. American Cold Storage, et al., a 15-page opinion, Judge Darden writes:
The City of Boonville (“Boonville”) brings this interlocutory appeal following the trial court's denial of its motion to dismiss in favor of American Cold Storage NA, et al. (collectively “Landowners”). Landowners cross-appeal. We affirm in part, reverse in part, and remand.

ISSUES
1. Whether tax-exempt parcels should be counted in determining whether a remonstrance has been signed by 65% of owners of land in an annexed territory.
2. Whether Landowners demonstrated standing to bring a declaratory judgment action to challenge Boonville's annexation ordinance.
In their cross-appeal, Landowners raise the following issue:
3. Whether parcels that abut public roadways, though not part of the annexed territory designated by Boonville, should be counted in determining whether a remonstrance has been signed by 65% of the owners of land in the annexed territory. * * *

[I] [W]e conclude that the language of the 65% rule, as expressed in Indiana Code section 36-4-3-11(a)(1), is not modified by the “signature counting” language of subsection (b) of the statute. We further conclude that the clear language of subsection (a)(1) indicates the legislature's intent that all property—whether taxable or tax exempt—should be counted in determining standing. Accordingly, we reverse the trial court on this issue. * * *

[II] We reverse the trial court's order on this issue and remand with directions that the declaratory judgment action be dismissed. * * *

[III] In the present case, the adjacent property is not located within the Boonville city limits and thus would be beyond Boonville's power to regulate. The land inside the boundaries of a municipality comprises its territorial jurisdiction, and except where authorized by statute, a municipality cannot impose duties on landowners outside its territorial jurisdiction. I.C. § 36-1-3-9(a). Furthermore, land underneath public roadways is not assessed to the adjacent owner. I.C. § 6-1.1-4-14(a)(4). There is no danger that the annexation will affect the rights or the taxes paid by the adjacent owners on the north side of Highway 62 and Millersburg Road. The adjacent owners do not have standing to join in the remonstrance under the 65% rule, and we affirm the trial court's ruling on this issue.

CONCLUSION. We reverse the trial court's ruling on the tax-exempt property and declaratory judgment issues, and we affirm the trial court's ruling on the adjacent landowner issue. We remand for further proceedings consistent with this opinion.

In Yvette Albright v. Four Winds International , a 17-page opinion, Judge Najam writes:
Yvette Albright appeals the decision of the full Worker's Compensation Board (the “Board”) affirming the decision of a single hearing member, who had concluded that Albright's employer, Four Winds International (“Four Winds”), is not responsible for providing prescription Cymbalta to Albright. Albright presents the following issues for review:

1. Whether the Board abused its discretion when it allowed evidence to be submitted to the Board that had not been before the single hearing member.

2. Whether the Board erred when it denied Albright's Application for Adjustment of Claim.

We reverse and remand with instructions.

In Khawar Muneer v. Shazi Muneer, a 5-page opinion, Judge Daren concludes:
Here, Shazi filed her petition in the county of her residence, in compliance with Indiana Code section 34-26-5-4(b). As Shazi filed her petition in a county of preferred venue, we find no abuse of discretion in denying Muneer’s motion to transfer venue.
In Jane D. Connolly v. Michael P. Connolly, a 9-page opinion, Judge Najam writes:
Jane D. Connolly (“Wife”) appeals the trial court’s judgment in favor of Michael P. Connolly (“Husband”). Wife raises a single issue for our review, which we restate as the following two issues: 1. Whether the trial court misinterpreted the terms of the parties’ settlement agreement. 2. Whether the trial court abused its discretion when it ordered Wife to pay a part of Husband’s attorney’s fees. We affirm.
NFP civil opinions today (4):

Warrum Construction Inc., et al. v. Yellowbook Sales and Distribution Co., Inc. (NFP)

Paternity of B.C.; S.C. v. N.S. (NFP)

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

Henry Howard v. Raymond Grimes, et al. (NFP)

NFP criminal opinions today (6):

Kyle D. Rosenfield v. State of Indiana (NFP)

Robert P. Webber v. State of Indiana (NFP)

Cory Blocker v. State of Indiana (NFP)

Richard Bartlett v. State of Indiana (NFP)

Alfred M. Wiley v. State of Indiana (NFP)

Vaughn Highley v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 13, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Steve Johnson will be retiring from IPAC July 1

Steve Johnson will be retiring from Indiana Prosecuting Attorneys Council July 1. The ILB has seen no announcement, but a reader sends this information from the IPAC site that begins:

The Indiana Prosecuting Attorneys Council (IPAC) is searching for an Executive Director for its state‐wide organization. IPAC consists of 91 elected prosecuting attorneys. IPAC assists in coordinating the duties of prosecuting attorneys in Indiana and their staffs, and provides technical, administrative and legal support to Indiana prosecutors. IPAC staff consists of an Assistant Executive Director, a Traffic Safety Resource Attorney, a Child Support Specialist, two additional attorneys, an Executive Assistant and 3 Support Staff.

Posted by Marcia Oddi on Monday, June 13, 2011
Posted to Indiana Courts

Law - "States weigh relaxing penalties for teen sexting " [Updated]

That is the heading of a long story by David Klepper of the AP in today's Gary Post-Tribune. Oddly, it does not mention Indiana, perhaps because its dateline is Providence RI. Some quotes:

A congressman who sends an X-rated photo of himself jeopardizes his reputation and his job. But in many states, teens caught doing the same thing can risk felony charges, jail time and being branded sexual offenders.

That’s because a minor who transmits a sexually explicit photo of themselves according to many state laws, is manufacturing and distributing child pornography. Lawmakers across the country, however, now say the problem of teen sexting didn’t exist when they enacted harsh punishments for child porn and are considering changes that would ensure minors don’t face jail time for youthful mistakes.

“Let’s just call this what it is: stupid,” said Rhode Island state Rep. Peter Martin, a Democrat from Newport who is sponsoring a bill to downgrade teen sexting from a felony to a juvenile offense. “These are kids we’re talking about. I don’t think minors should face these severe punishments just for being stupid.”

Legislatures in Rhode Island and 20 other states have considered bills this year to adjust penalties for teen sexting, according to the National Conference of State Legislatures.

But this story from WISH TV, dated June 9th, 2011, is headed "Indiana's sexting law to become more lenient." Some quotes:
INDIANAPOLIS (WISH) - The scandal surrounding New York Congressman Anthony Weiner has brought new attention to the practice of sexting and one Indiana state Senator sees this as a "teaching moment."

What Weiner did, sending lewd photos to another adult, is not against the law. If similar transactions involve a juvenile it can be a felony in Indiana, but the law will soon change. It's becoming more lenient.

"I've always been worried about this issue with kids," said Sen. Jim Merritt (R-Indianapolis), "and now we've got to worry about a congressman."

Merritt helped create Indiana's sexting law, and while it wouldn't apply to Weiner, Merritt said the scandal creates an opportunity for public education.

Merritt was recently motivated by a case out of Ohio. A young woman named Jesse Logan sent a nude photo to a boyfriend, who sent it to the entire school after they broke up. She committed suicide.

The message to Merritt was that sexting ruins lives, and this year he championed changes that will make laws more lenient as a result.

"Why? Because this is a mistake, and in current law if they make that mistake felony charges can be filed," he said. "And if you're convicted of a felony in this area, it's child pornography and you can be placed on a sex offender registry. It will follow you for the rest of your life. I believe there are other ways to correct mistakes that are one-time mistakes."

Congressman Weiner's mistake may well follow him for the rest of his life. But starting July 1 that won't be the case for some young adults in Indiana.

If someone is caught sexting repeatedly, the penalties from the old law would still apply.

The ILB isn't finding a 2011 law ... But I have located SEA 224 from 2010, authored by Sen. Merritt. The digest to that bill, which did become law, reads:
Electronic dissemination of indecent material and sex offender registration. Requires the sentencing study policy committee to study and make recommendations regarding the sending of sexually suggestive or sexually explicit material over the Internet or by use of a cellular telephone or similar device. Provides that a school corporation may offer classes or instruction regarding the risks and consequences of creating and sharing sexually suggestive or sexually explicit materials electronically. Provides filing and notice requirements for a petition to remove a person's designation as a sex offender or to require the person to register under less restrictive conditions.
But that really does not meeting the description of the WISH story. I've also looked at the list of bills the Senator authored in 2011 and also do not see a bill meeting the description. Let me know if you can help.

[Updated at 11:58 am]
Thanks to Prof. Schumm, who writes it is 2011's HEA 1083. Here is the digest:
Various criminal law matters. Provides defenses to the crimes of disseminating matter that is harmful to minors, child exploitation, and possession of child pornography if a cellular telephone was used and the defendant and recipient of the matter are certain ages and meet other requirements. Provides that a school corporation may offer classes, instruction, or programs regarding the risks and consequences of creating and sharing sexually suggestive or explicit materials. Provides that discipline rules adopted by a school corporation must prohibit bullying through the use of computers, computer systems, or computer networks of a school corporation. Provides a defense to child exploitation and possession of child pornography if the acts constituting the offense were performed by a school employee in the course of the person's employment. Requires the criminal code evaluation commission to study certain sex crimes against children during the 2011 interim.
Although he is not listed on the bill, Sen. Merritt made a successful floor amendment on 4/20/2011 that added language that became part of the final bill.

Posted by Marcia Oddi on Monday, June 13, 2011
Posted to General Law Related

Ind. Decisions - Transfer list for week ending June 10, 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 June 10, 2011. It is one page (and one cases) long.

One petition to transfer was granted, and it was granted with opinion on June 8th: Randy Edward Johnson v. State of Indiana - ILB summary here.
__________

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, June 13, 2011
Posted to Indiana Transfer Lists

Courts - SCOTUS issuing opinions this morning [[Updated]

From SCOTUSblog this morning, while awaiting this morning's opinions:

Tom:
23 cases are left to be decided. 58 have been decided so far. [Update: Now 19 left after this morning's]* * *

Tom: We can also start looking at the performance of the circuits. The Court has decided 19 of 25 Ninth Circuit cases, reversing in 83%. That proportion is pretty common for the circuits with a substantial number of cases: CA2 (100%); CA5 (80%); CA6 (80%). * * *

Tom: As has been true for a while, the longest outstanding involve violent videogames and gender discrimination in naturalization, both from November. * * *

The highest profile cert petitions left for the Term were filed by the Solicitor General and involve television indecency and tracking individuals through GPS devices without a warrant. * * *


Amy: The third opinion is Nevada Comm'n on Ethics v. Carrigan. The opinion is by Justice Scalia. The NV Supreme Court is reversed. The Nevada ethics in government law is not overbroad in prohibiting a legislator with a conflict of interest from both voting on a proposal and advocating its passage. The decision appears to be unanimous. Justice Kennedy has filed a concurring opinion. Justice Alito concurs in part and concurs in the judgment. * * *

Amy: We have the final opinion, in Flores-Villar v. United States. The judgment is affirmed by an equally divided Court; Justice Kagan took no part. It was argued on November 10. * * *

Amy: Flores-Villar was the decision involving gender discrimination in awarding U.S. citizenship to children born outside the U.S. to U.S.-citizen parens. * * *

Kali: Here is the case page, waiting on the opinion to be posted.

[Updated at 11:21 am] Here are the early AP reports on the Nevada ethics law and Flores-Villar opinions.

Posted by Marcia Oddi on Monday, June 13, 2011
Posted to Courts in general

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

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

From Sunday, June 12, 2011:

From Saturday, June 11, 2011:

From afternoon Friday, June 10, 2011:

Posted by Marcia Oddi on Monday, June 13, 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 6/13/11):

Wednesday, June 15th

Next week's oral arguments before the Supreme Court (week of 6/20/11):

Monday, June 20th

Tuesday, June 21st

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/13/11):

Tuesday, June 14th

Wednesday, June 15th

Next week's oral arguments before the Court of Appeals (week of 6/20/11):

Next Thursday, June 23rd

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, June 13, 2011
Posted to Upcoming Oral Arguments

Sunday, June 12, 2011

Courts - "Arkansas Supreme Court justice says clothing ad a surprise, asks designer to stop using her image"

A long June 11th story from the Arkansas Democrat-Gazette, reported by Debra Hale-Shelton, and reprinted in the Columbus IN Republic, begins:

LITTLE ROCK, Ark. — Arkansas Supreme Court Justice Karen Baker, whose picture and judicial title appeared in a fashion designer's advertisement earlier this year, has asked the designer to quit using her name, title or picture for any reason, the high court's communications counsel said Friday.

An advertisement showing Baker wearing a suit designed by Jamileh Kamran appeared in the April 15 issue of theDaily Record, a Little Rock based newspaper aimed at lawyers. The advertisement identified her as "Arkansas Supreme Court Justice Karen Baker."

"Justice Baker did not know about the ad April (15) until the (Arkansas) Times called her about it," Stephanie Harris, the communications counsel, wrote in an e-mail to the Arkansas Democrat-Gazette on Friday.

"She received no compensation of any kind," Harris added. "Once she found out about it, Justice Baker asked the designer not to use her name, title or photo for any reason and was assured she wouldn't.

"That is all she is able to say on the subject," Harris wrote.

Posted by Marcia Oddi on Sunday, June 12, 2011
Posted to Courts in general

Courts - Lawyer advertising tactics on internet upheld

Bruce Vielmetti reported in the Milwaukee Journal Sentinel on June 8th about a case where one law firm purchased another's name from Goggle and other search sites as a "keyword" to drive traffic to their own site. In other words, if you typed in the second's name, one of the results that would appear first would be the law firm that had purchased the name. Some quotes from the long story:

In a long-awaited decision over Internet lawyer searches, a Milwaukee County judge on Wednesday in essence told veteran plaintiff lawyer Robert Habush, "Welcome to the 21st century."

Circuit Judge Charles F. Kahn Jr. agreed with Habush that a competing law firm had invaded Habush's privacy by purchasing his name to drive Internet searches to their own website.

But Kahn also found that, in the context of modern, healthy business competition, it was akin to lawyers buying display ads that appear next to line listings of other lawyer in the Yellow Pages. That's not an unreasonable use of the name for commerce, Kahn found, and dismissed Habush's lawsuit. * * *

Habush sued after discovering the Cannon firm had purchased the words habush and rottier as Google, Yahoo and Bing search terms that return sponsored links to the Cannon law firm website, in addition to the "organic" search results for Habush, Habush & Rottier.

He sought an injunction halting the practice. Both sides litigated intensely in the following months. Because both sides agreed there were no material facts in dispute, the case was decided by Kahn on competing motions for summary judgment, which were argued in February.

Though he ruled for Cannon & Dunphy, Kahn spent much of his 27-page decision shooting down several of its defenses.

For much more, see this Forbes blog entry.

And here is an analysis of, and link to, the opinion, from the Technology and Marketing Law Blog.

Posted by Marcia Oddi on Sunday, June 12, 2011
Posted to Courts in general

Law - "Anti-abortion efforts in states hit obstacle of own making"

Interesting Reuters story by Kathy Finn, from June 11th.

And John Gramlich of Stateline has a national survey article headed "In an era of one-party rule, Republicans pass sweeping state agenda." The long article begins:

Republicans controlled all the levers of government in a staggering number of states this year. And it showed.

Holding a lock on the governorship and both houses of the legislature in 20 states, GOP conservatives advanced an agenda that may change the face of state government for decades. They honored pledges not to raise taxes by enacting huge spending cuts to balance budgets in Florida and Texas. They put tough abortion limits back on the agenda, passing laws in Alabama, Kansas and Oklahoma. Most famously, Republicans in Indiana, Ohio and Wisconsin put new restrictions on the rights of public employees, whose protests made national news for a month.

Though Democrats proved powerless to stop those changes, they moved a profoundly different agenda in the 11 states where they enjoy total control of state government. Arguing that budget cuts could only go so far, Democrats pushed tax increases in Connecticut, Illinois and Maryland. Meanwhile, Vermont approved a health care law supported by liberals that could prove far more expansive in scope than the controversial overhaul passed in Congress last year.

Posted by Marcia Oddi on Sunday, June 12, 2011
Posted to General Law Related

Courts - "Alabama's top court overturns law granting grandparents limited visitation rights"

Eric Velasco of the Birmingham News reported June 10th:

MONTGOMERY, Alabama -- An Alabama law granting grandparents limited visitation rights was declared unconstitutional Friday by an Alabama Supreme Court majority that said the law clashed with fit parents' right to decide what's best for their offspring.

Seven justices voted to declare the Alabama Grandparent Visitation Act unconstitutional. Chief Justice Sue Bell Cobb and Justice Jim Main dissented, saying the Jefferson County judge who originally awarded the grandparents visitation had ruled correctly. * * *

[T]he state high court majority ruled Friday that the visitation law did not properly protect parents' fundamental right to decide how to raise their children. The state can interfere with that right only if the parents are shown to be unfit.

This was a 2010 law. Here is an AP Story. (Thanks to How Appealing.)

Posted by Marcia Oddi on Sunday, June 12, 2011
Posted to Courts in general

Ind. Gov't. - "Farmland values up, set to go higher, experts say"

Eric Weddle reported June 10, 2011 in the Indianapolis Star:

A Purdue University agricultural economist expects that a report due later this summer will find farmland values eclipsing the all-time high set last year.

"This is being driven by the high commodity prices and the returns that grain farmers expect to receive from this year's crop," professor Craig Dobbins said Friday.

An annual survey, "Farmland Values and Cash Rent Survey," being conducted by Purdue researchers is based on information from managers, appraisers, land brokers, agricultural loan officers and others across the state.

Between 2000 and 2010, the average price per acre of average quality farmland in Indiana -- land capable of producing an average corn yield of 155 bushels -- rose from $2,173 to just more than $4,419 last June.

So far, Dobbins is seeing surveys for the 2011 report that value land significantly higher.

Low interest rates also are pushing the farm values up, he said, because it allows farmers to purchase more land instead of other investments. * * *

Ethanol production also remains a factor in grain demand.

Recent sales of farmland during the past year in Greater Lafayette and surrounding areas show signs of prices rapidly increasing.

In February about 82 acres on seven tracts near Dayton sold for $558,000. That includes one tract going for $7,995 per acre and some acres of four tracts sold at $6,832 per acre.

Shortly before that a 159-acre farm in Benton County, which included two wind turbines, was sold at auction for $8,237 an acre.

Dobbins said an acre being sold in Tippecanoe County for $8,000 is reasonable.

See also this ILB entry from May 25, 2007.

Here is the 2010 Purdue report
.

Posted by Marcia Oddi on Sunday, June 12, 2011
Posted to Indiana Government

Ind. Courts - "Crown Point Courthouse campaign featured in latest Indiana Landmarks magazine"

Updating this June 3rd ILB entry quoting a story headed "Crown Point billionaire challenges public to patch up courthouse," today the NWI Times has a column headed "Crown Point Courthouse campaign featured in latest Indiana Landmarks magazine," that includes this photo of the gorgeous building.

Posted by Marcia Oddi on Sunday, June 12, 2011
Posted to Indiana Courts

Saturday, June 11, 2011

Courts - More on the growing problem of thefts of funds out of bank accounts by online hackers

This Jan. 1, 2010 ILB entry began:

The ILB has had a number of earlier entries on the growing problem of thefts of funds out of bank accounts by online hackers, including this one from Oct. 27, 2009.
The Oct. 27, 2009 entry is a must-read now, in light of this June 7, 2011 story from Wired, reported by Kim Zetter. Headed "Bank Not Responsible for Letting Hackers Steal $300K From Customer," it begins:
A judge in Maine has ruled that a bank that allowed hackers to steal more than $300,000 from a customer’s online account isn’t responsible for the lost money, saying the customer should have done more to protect the account credentials.

Magistrate Judge John Rich sided with Ocean Bank in recommending that the U.S. District Court in Maine grant the bank’s motions for a summary dismissal of a complaint filed by Patco Construction Company. The ruling was reported Monday by BankInfoSecurity.

The case raises questions about how much security banks and other financial institutions may be reasonably required to provide commercial customers. It could set a precedent for liability in circumstances where customer systems are hacked and banking credentials are stolen. Small and medium-sized businesses around the United States have lost hundreds of millions of dollars in recent years to such activity, known as fraudulent ACH (Automated Clearing House) transfers.

This article from BankInfoSecurity has much more, plus a link to the order, which it adds "must still be reviewed by the presiding judge."

The 70-page, May 27, 2011 recommended decision is by Magistrate Judge John H. Rich III.

Posted by Marcia Oddi on Saturday, June 11, 2011
Posted to Courts in general

Ind. Courts - 7th Circuit reappoints Southern Indiana Bankruptcy Judge Anthony Metz III to a second 14-year term

Brief story here in the Evansville C&P.

Posted by Marcia Oddi on Saturday, June 11, 2011
Posted to Indiana Courts

Ind. Law - Gay pride? For some, this recently concluded legislative session was the final straw

Those are quotes from a long, front-page story today by the Indianapolis Star's Robert King. It begins:

As tens of thousands of people descend today on Downtown to attend a growing Pride Parade and Festival, there's a temptation to look at the colorful costumes and the revelry and conclude that things for the gay, lesbian, bisexual and transgender community are all joy and celebration.

The truth is that there is a growing sense of frustration with the realities of being gay in Indiana. Consider:

» There's no law that enables a person to provide medical consent on behalf of a same-sex partner who is incapacitated.

» There's no state law explicitly stopping discrimination based on gender identity or sexual orientation.

» According to Indiana law, gay couples can be evicted for no reason; gay employees can be fired for no reason.

» Indiana is one of 19 states without a hate crimes law based on sexual orientation or gender identity.

Then there is the renewed effort -- which seems to have momentum -- to make Indiana the next state to define marriage in its constitution as between a man and a woman. Already, Indiana is one of 12 states that prohibits same-sex marriages.

For some, this recently concluded legislative session was the final straw.

House Minority Leader B. Patrick Bauer, D-South Bend, had been single-handedly credited with halting the progress of the marriage amendment in the past. But this year, when Bauer was no longer House speaker and just part of a largely powerless minority, he joined those voting for the amendment's passage.

Posted by Marcia Oddi on Saturday, June 11, 2011
Posted to Indiana Government

Ind. Courts - "Defense attorney for death penalty case dies"

Mark Wilson reports today in the Evansville Courier & Press:

Timothy Dodd, an Evansville lawyer well-known as a defense attorney and for his advocacy on behalf of lawyers and judges struggling with addictions and life issues, died Thursday at Deaconess Hospital.

Dodd, 69, was lead defense council in the murder trial of Jeffrey Weisheit, which is scheduled to begin Aug. 16 in Jeffersonville, Ind., where it was relocated after he successfully argued for a change of venue. Weisheit faces the death penalty for the alleged murders of his girlfriend's two children on April 10, 2010 in rural Vanderburgh County.

It was unclear how his death will affect the trial. His co-council, Vanderburgh County chief public defender Stephen Owens, was not available for comment Friday. Under Indiana trial rules, defendants in death penalty cases are required to have two attorneys.

"Tim's passing is a great loss to the legal community. The professionalism and experience with which he approached his job served as a model for all of us," said Nicholas Hermann, Vanderburgh County prosecutor.

A practicing attorney in Indiana since 1966, Dodd made a name for himself as a public defender, handling numerous cases including that of Paul McManus, who was ultimately convicted of the February 2001 murder of his wife and two children. * * *

While his colleagues said that Dodd's struggles with alcohol were no secret, he drew on his personal experiences and natural empathy to help others with their life struggles.

"Tim never hid the fact that he was an impaired lawyer himself at one time," Trockman said.

Attorney Michelle Bryant, who worked with Dodd on the Evansville Bar Association's Lawyers Assistance Program, said Dodd was instrumental in convincing the Indiana Supreme Court to create the statewide Judges and Lawyers Assistance Program to help judges, lawyer and law students find resources to help with addictions, mental health issues and life struggles.

"Countless lawyers around here really owe him a great deal of gratitude," she said. "He was always willing to forgive and move forward."

Vollman said Dodd also worked with the Evansville Bar Associaton and the state's Judges and Lawyers Assistance Program to convince the Indiana Supreme Court to create a rule requiring lawyers practicing alone to name a surrogate attorney who could handle their cases and affairs in event of their own death.

Here is Mr. Dodd's obituary.

Posted by Marcia Oddi on Saturday, June 11, 2011
Posted to Indiana Courts

Ind. Gov't. - Charlie White seeks to ban cameras from recount commission hearing

From a story by AP reporter Charlie White, dated May 11, 2011 (my emphases):

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.

The Commission did appeal, to the Indiana Supreme Court, which ruled on May 20th that White's request to stay this action until after the criminal trial was denied. And the Court ruled the appeal was not timely, because the Commission had not made a final decision yet.

So the Tuesday, June 21st hearing, the one where they will reach a decision, is on. I recall watching online an earlier Recount Commission hearing, one held on a Sunday, before a big Colts game. Yesterday, however, Jim Shella of WISH TV posted this story:

INDIANAPOLIS (WISH) - Charlie White and lawyers for his family are doing everything they can to keep the facts surrounding his voter registration from coming out in a state recount commission hearing that is scheduled to take place in 11 days.

White today filed a motion asking that television cameras be banned from that hearing, a surprise move because recount commission proceedings are always open to the public. His attorney argues that the testimony will deal with issues of interpersonal relationships, divorce, and remarriage and says that recording the testimony "only serves prurient interest and may intimidate witnesses."

Meantime, the lawyer for White's wife Michelle, former Marion County Prosecutor Carl Brizzi, wants to keep her from testifying at the hearing altogether. He says Mrs. White may be subject to criminal charges and has been advised to invoke her Fifth Amendment right against self-incrimination.

White is fighting this battle on two fronts, one criminal and the other before the recount commission, and so far he's been unsuccessful in delaying the recount commission action until after the criminal case is concluded.

Posted by Marcia Oddi on Saturday, June 11, 2011
Posted to Indiana Government

Friday, June 10, 2011

Courts - D.C. divorce lawyer sued by former, Nobel prize-winning, client

"D.C. Divorce Lawyer, Nobel Laureate Feud " is the headline to this story by Zoe Tillman of The National Law Journal that begins:

Washington divorce attorney Rita Bank has been litigating unhappy break-ups for more than a quarter-century. But next month, the family law heavyweight will find herself in court over an unamicable split with a renowned former client.

Bank is facing a $5 million legal malpractice lawsuit from Nobel laureate Joseph Stiglitz, who is claiming that Bank botched his divorce, gave him counsel that left him financially vulnerable in the proceedings and failed to promptly tell him about merger discussions she was having at the time with his ex-wife's attorney.

For more, including a link to the complaint, see this just-posted entry by the same writer from The Blog of Legal Times.

Posted by Marcia Oddi on Friday, June 10, 2011
Posted to Courts in general

Law - "American Bar Association Takes Heat From Advisory Panel on Accreditation"

Unfortunately, the article, in the Chronicles of Higher Education, is available only to subscribers. BUT you can read about it here, at the WSJ Law Blog, in an entry headed "American Bar Association Gets Smacked Around By Accreditation Committee, But Keeps Its Power."

Posted by Marcia Oddi on Friday, June 10, 2011
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Liberty Country Club v. Landowners of Country Club Estates , an 11-page opinion, Judge Mathias writes:

Liberty Country Club (“Liberty”) filed a complaint for declaratory judgment in Union Circuit Court against the Landowners of the Country Club Estates Housing Development (collectively “the Homeowners”) seeking a declaration that under the terms of a covenant applicable to the development, Liberty was not required to expend funds to maintain the purity of the water it provides to the Homeowners. After the parties filed cross-motions for summary judgment, the trial court entered summary judgment in favor of the Homeowners and concluded that under the terms of the covenant, Liberty is required to provide potable water to the Homeowners in the development. Liberty appeals and argues that the trial court erred in interpreting the covenant. After months of unsuccessful appellate mediation ordered by this court, we now review this case on the merits and affirm the trial court in all respects. * * *

The evidence establishes Liberty’s intent to provide potable water to the Homeowners when it covenanted that the Homeowners would have “use of the club’s water so long as same is available.” After Liberty’s course of conduct for over thirty years, a time during which it could have taken the necessary steps to connect to a municipal or public utility and during which it enjoyed the benefits of the residential real estate development driven in part by free potable water it provided to the Homeowners, it cannot now rely upon its restrictive interpretation of the covenant at issue. For all of
these reasons, we conclude that the trial court properly granted the Homeowners’ motion for summary judgment.

In Brenda Bell v. Grandville Cooperative, Inc., et al. , a 14-page opinion, Judge Barnes writes:
Brenda Bell appeals the trial court's grant of summary judgment in favor of Grandville Cooperative, Inc., and Kirkpatrick Management Company, Inc. (collectively “Grandville”), in her personal injury negligence action against Grandville. We reverse and remand.

The sole restated issue is whether there is a genuine issue of fact as to whether Grandville breached a duty owed to Bell. * * *

Although there appear to be no Indiana cases with a fact pattern identical to this one, we discovered a highly-similar case from Missouri, Braun v. George C. Doering, Inc., 907 S.W.2d 371, 373 (Mo. Ct. App. 1995), error denied. Missouri, much like Indiana, requires that before a landlord may be held liable for failing to correct a hazardous situation on the premises, including weather-related situations, the landlord must have had either actual or constructive knowledge of the condition and have had sufficient time to correct the condition. Braun, 907 S.W.2d at 373. Missouri also recognizes, as do our courts, that “[a] landlord is not the absolute insurer of his or her premises.” Id. * * *

For all practical purposes, the facts in Braun are virtually indistinguishable from the facts here. Additionally, although the Missouri court's decision is not binding authority, it is highly persuasive, given the virtually identical standards for landlord liability in Missouri and Indiana. We also keep in mind that whether there has been a breach of duty in a negligence action generally is a question of fact inappropriate for resolution by summary judgment, unless the facts are undisputed and only one inference can be drawn from those facts. * * *

There is an outstanding question of material fact as to whether Grandville breached its duty to Bell to maintain the apartment complex premises in a reasonably safe condition. We reverse the trial court's grant of summary judgment in Grandville's favor and remand for further proceedings consistent with this opinion.

In State of Indiana v. Gerald Foster , an 8-page opinion where the concurring opinion carefully distinguishes the result from the Supreme Court's decision last month in Barnes v. State, Sr. Judge Garrard writes:
The State appeals the trial court's grant of Defendant Gerald Foster's motion to suppress. We affirm.

On December 14, 2009, Detective Brian Martin of the Fort Wayne Police Department supervised a confidential informant's alleged controlled buy of cocaine from Foster. On the morning of January 4, 2010, twenty-one days after the controlled buy, Detective Jean Gigli and Detective Angie Reed went to Foster's apartment to arrest him at Martin's request. The detectives did not have an arrest warrant. Gigli “pound[ed]” on Foster's door, awakening Foster and his girlfriend. Tr. p. 35. When Foster asked who was at the door, Gigli identified himself as a police officer and asserted that he was investigating a “911 hang up.” Tr. p. 35. Foster and his girlfriend told the officers through the door that they were at the wrong apartment, but Gigli said that he wanted to speak to them to make sure everything was okay. The State concedes that there was no report of a 911 call, and that Gigli's statements were a ruse.

When Foster's girlfriend opened the door, Gigli and Reed came into the apartment and handcuffed Foster. Gigli watched Foster and his girlfriend while Reed searched the apartment. Next, Gigli read Foster his Miranda advisements and transported him to the police station. While he was in the car with Gigli, Foster made inculpatory statements. At the station, Gigli brought Foster to an interview room and again read Foster the Miranda advisements. Foster signed a waiver of rights form. Next, Gigli and Martin questioned Foster, who made additional inculpatory statements. After the detectives questioned Foster at the station, Martin sought and obtained a warrant for Foster's arrest.

The State charged Foster with dealing in cocaine, a Class A felony. Ind. Code § 35-48-4-1 (2006). Foster filed a motion to suppress, alleging that the warrantless arrest violated his protections against illegal search and seizure under the federal and state constitutions. After a hearing, the trial court granted Foster's motion, determining that “the officer acted in violation of the defendant's rights when he lured him into the threshold of his home.” Appellant's App. p. 60. Consequently, the trial court ordered suppressed “any evidence obtained as a result of the illegal arrest of the defendant.” Id. Subsequently, the State sought and received permission to dismiss the case without prejudice, and this appeal followed. * * *

Balancing the three factors set forth in Litchfield, under the totality of the circumstances the officers' warrantless entry and in-home arrest of Foster was unreasonable and violated Article I, Section 11 of the Indiana Constitution. See Trotter v. State, 933 N.E.2d 572, 581 (Ind. Ct. App. 2010) (determining that the officers' warrantless entry into the defendant's barn violated the Indiana Constitution where the degree of the officers' intrusion was high and there were no exigent circumstances to justify the intrusion).

The question then becomes whether the statements in Gigli's car and at the police station should be suppressed. * * *

The connection between the arrest and the securing of statements discloses near constant interaction and exploitation of the arrest and precludes a finding of attenuation. The trial court did not err by excluding the statements. Affirmed.

NAJAM, J., concurs. MAY, J., concurs in result with separate opinion:

I concur, but feel it is important to distinguish the facts before us from those in Barnes v. State, 946 N.E.2d 572, (Ind., 2011), where our Indiana Supreme Court addressed illegal home entry by police.

Foster, like Barnes, was arrested in his home without a warrant. Unlike Barnes, Foster did not resist. Instead, after his arrest, Foster made incriminating statements in the police car and at the station. Barnes was appealing his right to resist in his own home, while Foster is challenging the admissibility of the evidence collected after police allegedly entered his home illegally.

The Barnes Court “decline[d] to recognize a right to resist unlawful police entry into a home” and “decline[d] to recognize a right to batter a police officer as part of that resistance.” Barnes, 946 N.E.2d at 576. Because there was no right to resist police entry, the Barnes Court said, “we need not decide the legality of the officers' entry into Barnes's apartment.” Id. at 577.

As our Supreme Court did not address the legality of the entry and as Barnes did not argue the suppression of any evidence gleaned from the alleged illegal entry, the decision in Barnes does not control the case before us. Instead, Foster addresses the nature of the relief available when the State violates the Fourth Amendment.

NFP civil opinions today (2):

Wells Fargo Bank, N.A. v. Reed Hodges, et al. (NFP)

Martha Tichenor v. Dana Dodson (NFP)

NFP criminal opinions today (5):

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

Harold L. Tice v. State of Indiana (NFP)

Walter L. Walker v. State of Indiana (NFP)

Matthew Fearnow v. State of Indiana (NFP)

Leland Stephens v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 10, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Amicus brief by legislators not unprecedented

The newest issue of Indiana Legislative Insight ($$$) has a brief item that begins:

In what we believe is an unprecedented action, Prof. Joel Schumm of the Indiana University School of Law - Indianapolis files an amicus curiae brief with the Indiana Supreme Court on behalf of a bipartisan group of 71 lawmakers – including 80% of the Indiana Senate – in support of the request for a rehearing in the Barnes v. State case.
To check on this, the ILB contacted Prof. Schumm, who answers:
The amici brief may be unprecedented in terms of the number of legislators who signed on, but amici briefs have been filed by legislators in other cases, such as Clinic for Women v. Brizzi and Morrison v. Sadler (in the Court of Appeals).

Posted by Marcia Oddi on Friday, June 10, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Barnes petition for rehearing filed

On June 8 the ILB posted the legislators' amicus brief re a rehearing of the Supreme Court's decision last month in Barnes v. State.

Here now is the Petition for Rehearing filed yesterday by Mr. Barnes' attorney. [I've OCRed it and reduced the file size]

From the Court's press officer:

Barnes' attorney filed a petition for rehearing on June 9th. The State has until Monday, June 27 to file a response brief. After that, no further briefs are allowed.

PROCEDURE
When the Court has received all briefs in a case the matter is considered "fully briefed." The 5 Justices of the Supreme Court will then take the matter under consideration. The Justices will then rule on the rehearing petition. There is no timetable for the Court to make that decision. When the Court makes a decision it is a matter of public record and will appear on the docket.

Posted by Marcia Oddi on Friday, June 10, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - FBI and federal prosecutors in South Bend dragged in to marital dispute

The story, headed "Charges Dropped In Facebook Spy Vs. Spy Case," is at the Smoking Gun website, with links to documents.

Posted by Marcia Oddi on Friday, June 10, 2011
Posted to Indiana Courts

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

Updating this ILB entry from May 26th, the Indianapolis Star today has a brief "status report," headed "Where Indiana's law stands." Some quotes:

The ACLU of Indiana filed a lawsuit May 25 seeking a federal court injunction against the state's new immigration law, passed this year by state lawmakers and signed into law by Gov. Mitch Daniels.

The lawsuit asks the U.S. District Court in Indianapolis to prevent the law from going into effect July 1. * * *

At issue in the lawsuit are provisions that allow state and local police to arrest people based solely on a "removal order" from an immigration court, a "detainer or notice of action issued" or if they have been convicted of one or more aggravated felonies -- even if they have served their time and been lawfully released.

The action also asks the court to declare the lawsuit a class action for all potentially affected people.

Posted by Marcia Oddi on Friday, June 10, 2011
Posted to Indiana Courts

Thursday, June 09, 2011

Ind. Decisions - More on today's SCOTUS ruling in Sykes [Updated]

Updating this ILB entry from earlier today, here are some quotes from this lengthy story by Bill Mears of CNN:

Washington (CNN) -- They have become staples of many cable and broadcast television stations: high-speed, often dangerous police pursuits of fleeing motorists, videotaped and packaged into such shows as "World's Wildest Police Chases."

In an appeal that came to the Supreme Court, the issue was: When do such incidents cross over into the realm of "violent felonies" that could lead to increased jail time?

The justices, by a 6-3 vote Thursday, dismissed an appeal from an Indiana man who received an enhanced federal sentence because of prior serious offenses, one of which was for trying to escape in a vehicle. * * *

It was the third felony that concerned the high court. Indiana's "resisting law enforcement" law provides various criteria, depending on the circumstances, for those who flee officers. Sykes had at one time used a vehicle to escape after an officer had ordered him to stop, which is a felony under state law.

Officers had noticed Sykes driving without headlights, and when police flashed their emergency sirens, the suspect took off and a chase ensued. Prosecutors said Sykes drove on the wrong side of the road and through yards with residents nearby, then rammed a fence and finally crashed into a house. He fled on foot and was eventually captured, thanks to a police dog in pursuit.

Under the federal Armed Criminal, Career Criminal Act, Sykes received a mandatory minimum 15-year prison term for the gun possession charge, enhanced because of his past criminal record. The law was designed to get tough with habitual felons through longer sentences.

[Updated at 10:00 pm] Robert Barnes will have this story in tomorrow's Washington Post, headed "Supreme Court continues to define what constitutes a ‘violent felony’." It begins:
For the fourth time in as many years, the Supreme Court on Thursday considered exactly what kind of violent crimes call for the mandatory prison terms Congress provided in the Armed Career Criminal Act.

Get used to it, Justice Antonin Scalia said in a sharp-edged dissent; the court will be trying to sort out the law’s meaning “until the cows come home.”

The justices said that fleeing police custody in a vehicle could be a “violent felony” under the law’s definitions. Scalia not only criticized that decision, but the Congress that approved a law that contains provisions he considers so vague as to be unconsititutional.

“Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty,” Scalia wrote. “In the field of criminal law, at least, it is time to call a halt.”

Posted by Marcia Oddi on Thursday, June 09, 2011
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Brian Smith v. Brendonwood Common, Inc. , a 4-page opinion, Judge May writes:

Brian Smith appeals summary judgment for Brendonwood Common, Inc. He presents multiple issues, but we find dispositive that Smith had no standing to bring his claim. We affirm. * * *

As Smith was not injured by Brendonwood's actions, he does not have standing to pursue his claim. Accordingly, we affirm the summary judgment in favor of Brendonwood.

In Josh Gold, Mitch Gold and Andrea Gold v. Cedarview Management Corp., a 12-page opinion, Judge May concludes:
As the Lease Agreement and Settlement Agreement were contemporaneous documents, the trial court did not err in considering the Lease Agreement when determining Josh Gold was a guarantor. The Settlement Agreement did not address Cedarview’s claim for the December 2008 non-payment of rent because it was entered before Josh revoked the ACH payment. Finally, we find no merit to Gold’s assertion that Cedarview breached the lease by locking him out of the premises on February 17, 2009. Therefore, we affirm the $48,520.44 (plus interest) summary judgment in favor of Cedarview.
In Patrick J. Trainor v. State of Indiana , a 9-page opinion, "Trooper Kaizer began receiving various collectible items in the mail that neither he nor any member of his household had ordered. Trooper Kaizer contacted the company that had sent many of the items and informed the company's representative that he had not placed the orders. The company cancelled all outstanding billings and unshipped orders and provided Trooper Kaizer with several of the original order forms it had received for items that had been ordered in his name. * * * We conclude that the State presented sufficient evidence to support Trainor's convictions of Class D felony counterfeiting."

In United States Steel Corp., et al. v. Northern Indiana Public Service Co. , a 38-page opinion in an appeal from a final order of the IURC,which is defended by NIPSCO, Judge Mathias concludes:

The Commission erred in concluding that U.S. Steel's distribution of electricity to ArcelorMittal made it a public utility pursuant to Indiana Code section 8-1-2-1(a) and in its determination that U.S. Steel had violated the Service Area Assignments Act. Accordingly, we remand to the Commission with instructions to vacate these portions of its order. However, the Commission correctly determined that U.S Steel's transportation of gas on ArcelorMittal's behalf made it a public utility for the purposes of Indiana Code section 8-1-2-87.5(b) and that U.S. Steel violated NIPSCO's tariff prohibition on the resale of natural gas. Additionally, we conclude that the Commission did not err in dismissing the Steel Producers' claim against NIPSCO. With regard to NIPSCO's cross-appeal, we conclude that the Commission did, in fact, address one of the claims NIPSCO claims it overlooked, and properly chose not to address the remaining two.
NFP civil opinions today (4):

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

Asset Acceptance LLC v. Phillip Metz (NFP)

Paternity of J.L.; J.D. v. L.L. (NFP)

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

NFP criminal opinions today (5):

Ronald Williams v. State of Indiana (NFP)

Atashia Poe v. State of Indiana (NFP)

William Lawhorn v. State of Indiana (NFP)

Rodney Simmons v. State of Indiana (NFP)

William D. Harmon, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 09, 2011
Posted to Ind. App.Ct. Decisions

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

In Harriett Ellis v. CCA of Tennessee (SD Ind., Barker), a 23-page opinion, Judge Flaum writes:

The plaintiffs in this case are former nurses who worked in the health care unit of a privately run jail. They maintain that their employer, defendant CCA of Tennessee LLC (“CCA”), subjected them to racial discrimination and a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. They also allege that their employment relationship ended when CCA constructively terminated their employment for complaining about problems at the jail, in violation of a state whistleblower law. The district court granted CCA’s motion for summary judgment. We affirm. * * *

D. Claim Preclusion. We do agree with plaintiffs that the district court erred with respect to its claim preclusion ruling.

Posted by Marcia Oddi on Thursday, June 09, 2011
Posted to Ind. (7th Cir.) Decisions

Courts - Supreme Court issues several interesting opinions today

One is the Microsoft v. i4i patent case. Here is the opinion. And here is the SCOTUSblog case page, for background.

Another was Sykes v. U.S., a 7th Circuit case out of Indiana, involving "Whether using a vehicle while knowingly or intentionally fleeing from a law enforcement officer after being ordered to stop constitutes a 'violent felony' under the Armed Career Criminal Act, 18 U.S.C. § 924(e)." Here is the opinion; here is the SCOTUSblog case page.

[More] AP coverage of Microsoft opinion, Sykes.

Posted by Marcia Oddi on Thursday, June 09, 2011
Posted to Courts in general

Ind. Law - Surprises from the 2011 Indiana General Assembly

Time to begin the list of "surprises" in bills passed by the 2011 General Assembly. The ILB has become aware of two so far:

Posted by Marcia Oddi on Thursday, June 09, 2011
Posted to Indiana Law

Wednesday, June 08, 2011

Ind. Decisions - "71 Indiana lawmakers ask Supreme Court to reconsider recent ruling on unlawful police entries"

From a just-issued, lengthy press release:

INDIANAPOLIS (June 8, 2011) – Attorneys for 71 Indiana lawmakers today filed a joint brief with the state’s Supreme Court, encouraging the justices to reconsider a controversial May 12 ruling regarding unlawful police entries, according to Sen. Mike Young (R-Indianapolis).

Young said 40 state senators and 31 state representatives filed the document in support of a rehearing of Richard L. Barnes v. State case in which a 3-2 decision concluded Hoosiers have no right to resist unlawful police entry into their homes, but could seek legal remedies later through court proceedings.

“Few issues before this court have galvanized the public’s attention and concern as much as the declaration in this case that “the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law,” Young said the brief stated. “Rehearing is appropriate to reconsider that holding in light of Indiana’s robust self-defense statute.”

Here is the just-filed, must-read Brief of Amici Curiae.

Posted by Marcia Oddi on Wednesday, June 08, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Randy Edward Johnson v. State of Indiana, an 11-page, 5-0 opinion, Justice Sullivan writes:

The defendant in this criminal case wrote the judge a few months prior to trial complaining that his public defender, who had a well-documented history of neglecting clients, had been neglecting his case. The judge passed the complaint along to the county public defender's office, reasoning that she had no authority to take further action. The judge's failure to inquire further did not violate Johnson's Sixth Amendment right to the effective assistance of counsel. We hold, however, that a judge faced with similar circumstances must at the very least receive assurances from the public defender's office that the complaint has been adequately addressed. But because Johnson failed to renew his objection at trial and because defense counsel appeared at trial and subjected the States case to meaningful adversarial testing, we affirm.

Posted by Marcia Oddi on Wednesday, June 08, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - "Judge Lynch, who always wears dresses to work, said she won't take the glass stairs at the new Franklin County Common Pleas Courthouse"

Thanks to How Appealing, here is a don't miss story, complete with photos, from today's Columbus Ohio Dispatch, headed "New courthouse's glass stairs draw concerns of 'peeping': Airy feature in new Common Pleas building raises concerns of modesty ." Some quotes from the story by Elizabeth Gibson:

The central stairs of the new Franklin County Common Pleas Courthouse seem almost to float up from the ground floor, suspended in a foyer of light and glass.

However, the aesthetic appeal of the stairway has an unfortunate side-effect in a building where judges sentence sex offenders: People can see up a woman's skirt from the busy walkway under the stairs.

"If you wear dresses, you're on notice that you might want to take the elevator, as I will be doing," said Judge Julie M. Lynch, who wears dresses exclusively to work.

Although it's probably best not to advertise the issue for fear of abuse, people partial to skirts, dresses and kilts have a right to know about the risk, Lynch said.

Posted by Marcia Oddi on Wednesday, June 08, 2011
Posted to Courts in general

Law - Excellent blog on law and technology

Internet Cases, "a blog about law and technology." Run by a Chicago attorney who went to Wabash College.

Posted by Marcia Oddi on Wednesday, June 08, 2011
Posted to General Law Related

Ind. Gov't. - Interesting dispute among state bureaucrats and the locals

From the June 7th Chesterton Tribune, this story by Paulene Poparad that begins:

Burns Harbor got ahead of the Indiana State Building Department in adopting new laws to address faster-burning, pre-engineered wood trusses, but now the state has caught up and wants changes to the town’s ordinance.

Bill Arney, Burns Harbor building commissioner and fire chief, brought the news to the town’s Advisory Plan Commission on Monday.

Arney said Indiana’s law won’t take effect until January 1, 2012 so the town’s ordinance still would be enforceable until that time, but one problem already has presented itself.

Burns Harbor requires a metal tag be affixed at the utility meter outside the home and Arney said he’s purchased $900 worth of tags, however, the state says their size is too small and they want stickers instead.

The tags notify emergency responders that glued, pre-engineered lumber was used during construction for the floors and/or ceilings, which under heat can give way posing a danger to firefighters and others. In December, 2010 a fire spread quickly through a Burns Harbor home where such trusses had been used.

Arney said he’s making the case to state officials including the State Fire Marshal that stickers placed on meters can wear away over time or be damaged/destroyed in a fire while the metal tags should survive.

Plan Commission and Town Council member Toni Biancardi asked if the town ordinance could be more stringent than state building code. Hesham Khalil of town engineer Global Engineering and Land Surveying said yes, but Indiana’s building and fire offices still would have to approve it.

According to Arney, the state also doesn’t like Burns Harbor’s language describing the pre-engineered/manufactured lumber, the maximum fine possible for non-compliance, and the price of the metal tag homeowners or builders would be required to purchase.

Although the Plan Commission worked with Arney to fashion Burns Harbor’s fire-tag ordinance originally, associate town attorney Julie Paulson said it will be up to the Town Council to adopt the needed amendments.

Posted by Marcia Oddi on Wednesday, June 08, 2011
Posted to Indiana Government

Ind. Decisions - "COA reverses conviction in molestation case"

Yesterday's COA opinion in the case of Michael J. Gaby v. State of Indiana (ILB summary here) is the subject of this story by Sophia Voravong in the Lafayette Courier Journal. Some quotes:

A Lafayette man who was found guilty last year of molesting a former neighbor's daughter while baby-sitting the girl more than a decade ago could receive a new trial.

That's because the Indiana Court of Appeals on Tuesday reversed the conviction against Michael Joseph "Joe" Gaby on grounds that the girl -- while testifying -- should not have been allowed to "refresh her memory" of what took place by reviewing the statement she previously gave to investigators.

The high court also found that Tippecanoe County Deputy Prosecutor Laura Zeman -- though responding to Gaby's argument that the victim was lying -- erred by telling jurors, "I cannot and would not bring charges that I believe were false," among other statements.

Posted by Marcia Oddi on Wednesday, June 08, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 8 NFP)

For publication opinions today (6):

In Donna Gibson v. G. David Bojrab, M.D., et al. , a 9-page opinion, "Gibson argues that the trial court should have admitted evidence of the Courtright matter as direct evidence of Dr. Bojrab’s negligence and as impeachment evidence." Judge Barnes writes:

Donna Gibson appeals the judgment in favor of Dr. G. David Bojrab and Pain Management Associates, P.C., on Gibson’s medical malpractice claim. We affirm.

Issue. Gibson raises one issue, which we restate as whether the trial court properly excluded evidence of a decision by a Medical Review Panel in an unrelated case against Dr. Bojrab.

In Cynthia Perdue v. Greater Lafayette Health Services, et al. , an 11-page opinion, Judge Najam writes:
Cynthia Perdue appeals the trial court's entry of summary judgment in favor of Greater Lafayette Health Services, Inc., d/b/a Home Hospital (“Home Hospital”), on her complaint alleging negligence and seeking damages for bodily injuries. Perdue presents a single issue for our review, namely, whether the trial court erred when it concluded that her complaint is barred by a statute of repose. We reverse and remand for further proceedings.* * *

This case presents an issue of first impression for our courts, and we may look to other jurisdictions for support. In addressing a case on all fours with the instant case, the Court of Civil Appeals of Oklahoma has held that a statute of repose for design defects does not apply to a complaint alleging failure to warn an invitee of a hidden danger. * * *

We hold that “failure to use reasonable care to maintain an improvement” includes a breach of the duty described in the Restatement (Second) of Torts § 343, namely, the duty to exercise reasonable care to protect invitees against dangerous conditions of the premises. * * *

Again, nothing in Perdue's complaint suggests that she is relying on a deficiency in the design or construction of the parking garage to support her claim, but she is alleging breach of the duty to protect invitees from a dangerous condition of the premises. Accordingly, her complaint is not barred by the statute of repose.4 The trial court erred when it interpreted Indiana Code Section 32-30-1-5 to bar claims such as Perdue's. Home Hospital has not shown, as a matter of law, that there exist no genuine issues of material fact, and Home Hospital is not entitled to summary judgment.

Guideone Insurance Co., as Subrogee of Andrew Alexander and Michael Schafstall v. U.S. Water Systems, Inc., and Lowe's Home Centers, Inc.

In Michael K. Arthur v. State of Indiana , a 9-page opinion, Judge Darden concludes:

The trial court erred in ordering that Arthur was not eligible for credit time while serving his sentence on a commitment to home detention. We do not find, however, that the trial court erred in its order modifying Arthur's commitment. Reversed and affirmed.
In Evelyn Garrard, by and through her Attorney-in-fact, Ronald D. Garrard v. Debra L. Teibel and Douglas Grimmer, and Debra Lindsay, a 5-page opinion in a pro se appeal, Judge Bradford concludes:
Garrard’s challenge to the trial court’s summary judgment is waived for failure to comply with the Indiana Appellate Rules. Garrard’s statement of facts does not explain any of the facts and proceedings in this case after 2007. The summary judgment proceedings at issue occurred in 2009. * * *

While this is a challenge to summary judgment, and Garrard claims that certain evidence creates a genuine issue of material fact, Garrard fails to demonstrate what facts, if any, he designated to the trial court. * * * Accordingly, we are unable to discern Garrard’s basis for appeal.

In Charles Price v. Delmar Kuchaes, a 29-page opinion, Chief Judge Robb writes:
Following the failure of Charles Price's loss of consortium claims, wherein he sought recovery for a vaccine injury to his wife, Price brought this legal malpractice action against Delmar Kuchaes, the attorney who represented him in that litigation. The trial court initially granted partial summary judgment to Price on the issue of liability but denied Price summary judgment on the issue of damages. The following year the trial court reversed course, granting full dispositive summary judgment to Kuchaes based on a theory of judicial estoppel for Price's failure to disclose the malpractice action in his Chapter 13 bankruptcy filing. Price now appeals, and Kuchaes cross-appeals. The parties raise six issues on appeal, of which we find the following three restated issues dispositive: 1) whether Price has standing to maintain this legal malpractice action when it was not initially disclosed in his bankruptcy filing but was later disclosed and the bankruptcy dismissed; 2) whether the trial court properly granted summary judgment to Kuchaes based on judicial estoppel; and 3) whether the trial court correctly decided the merits of Price's legal malpractice claim in its previous grant of partial summary judgment to Price as to Kuchaes's liability.

We conclude Price has standing to pursue this legal malpractice action and that the trial court erred when it granted Kuchaes summary judgment based on judicial estoppel. We further conclude issues of material fact remain such that Price is not entitled to summary judgment as to Kuchaes's liability for malpractice, though the trial court correctly denied Price summary judgment as to damages. We reverse in part, affirm in part, and remand for further proceedings.

NFP civil opinions today (3):

Terri L. Mozingo v. Timothy Pursifull (NFP)

Tana Dulin v. Sun Mortgage Co., LLC a/k/a Sun Mortgage, LLC, and Wendy Creed (NFP)

Troy L. McMurtry v. Sabrina L. McMurtry (NFP)

NFP criminal opinions today (5):

Chad Byrd v. State of Indiana (NFP)

Anthony Welkie v. State of Indiana (NFP)

Brandon Gifford v. State of Indiana (NFP)

Thomas A. Smith v. State of Indiana (NFP)

Jeffrey Randolph v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 08, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Indiana sentencing laws to be studied by Legislative committee"

Eric Bradner of the Evansville Courier & Press has the story here; it begins:

State lawmakers will take another look at revising Indiana's criminal sentencing laws in a study committee this summer.

Though the General Assembly did not enact any of Gov. Mitch Daniels' recommendations during the four-month session that ended in April, Daniels said he plans to make them a focal point in 2012, as well.

A summer study committee would set the table for such action.

Posted by Marcia Oddi on Wednesday, June 08, 2011
Posted to Indiana Government

Tuesday, June 07, 2011

Ind. Decisions - More on: Legislative committee to study Barnes decision

Lesley Stedman Weidenbener of the Louisville Courier Journal has just posted a story here, updating this earlier ILB entry. Some quotes:

Indiana legislative leaders have appointed a special committee to consider an Indiana Supreme Court decision that Hoosiers don't have the right to resist police officers who enter their homes illegally.

Sen. Brent Steele, R-Bedford, will chair the committee and said he wants to determine whether the General Assembly can pass a law overturning the controversial ruling or narrowing its impact. * * *

Critics of the decision called for voters to oust Supreme Court Justice Steven David, who wrote the majority opinion in the case, by voting “no” on a retention question that will be on the 2012 ballot.

They also called for the court to reconsider and narrow the ruling, which appears to have overturned hundreds of years of common law precedent.

Steele said the four-member, bipartisan committee will begin meeting soon and should make a report to legislators this fall.

As readers may remember, last summer Senator Steele was one of the candidates and became a semi-finalist for the seat on the Supreme Court that then-Judge David was ultimately selected to fill. Here is the overview of the ILB entries on last summer's selection process.

[More] The Senate Democrats have now posted the full list and details of summer study committee topics.

Posted by Marcia Oddi on Tuesday, June 07, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Even more on: Hearing on Planned Parenthood funding cutoff this morning in federal court

Updating yesterday's ILB entry, that ended with the ILB comment that our AG seemed to be urging that Planned Parenthood create wholly separate abortion facilities, Heather Gillers reports today in the Indianapolis Star on that very point, in a lengthy story headed: "State offers way to keep Medicaid flowing: Planned Parenthood could spin off abortion clinics; neither side seems to like option." Some quotes:

An attorney for the state of Indiana told a judge Monday that Planned Parenthood could still receive taxpayer funds -- even if it continues providing abortions.

Thomas Fisher, the state's solicitor general, said Planned Parenthood would still be eligible for Medicaid funding if it spun off its abortion clinic into a separate corporate entity.

But that option did not appear to sit well with supporters or opponents of Indiana's tough new anti-abortion law -- a law that was pitched as a way to defund abortion providers and is the first in the nation to end Medicaid funding to Planned Parenthood. * * *

During the legislative process, the bill was promoted as a way to cut off funding to Planned Parenthood -- and to ensure that no tax dollars would go to an organization that performs abortions.

But on Monday, Fisher offered a less stringent interpretation.

"In Texas," he told the court, "Planned Parenthood does have separate forms for its abortion and other entities."

Sen. Scott Schneider, R-Indianapolis, who authored the defunding measure, said he is not sure how he feels about that interpretation.

"I don't know whether I would or would not feel comfortable with it," said Schneider. "I don't know enough about the details of what happened in Texas, whether it was a superficial change or a more complete change."

At some clinics in Texas, Planned Parenthood said, the change was as small as performing abortions on a different floor than where other services were offered.

Posted by Marcia Oddi on Tuesday, June 07, 2011
Posted to Indiana Courts

Ind. Decisions - Legislative committee to study Barnes decision

Mary Beth Schneider of the IndyStar tweets:

marybschneider
#INLegis will have committee looking at controversial state supreme court decision on right to block police from entering home.

Posted by Marcia Oddi on Tuesday, June 07, 2011
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In Uniontown Retail #35, LLC, d/b/a The Lion's Den #36 v. Board of Commissioners of Jackson County, a 20-page opinion, Judge Darden writes:

Uniontown Retail 36, LLC, d/b/a The Lion's Den #36, (“Lion's Den”) appeals the trial court order granting the motion for summary judgment filed by the Board of Commissioners of Jackson County (“the Board”) and permanently enjoining Lion's Den from operating a sexually oriented business at its current location in Jackson County. We affirm.

ISSUES
1. Whether the trial court erred when it concluded that two ordinances were not improperly adopted zoning laws.
2. Whether the trial court erred in concluding that operation of a sexually oriented business by Lion's Den was not grandfathered as a nonconforming use.
3. Whether the trial court's summary judgment order must be reversed because there is a genuine issue of material fact as to whether the ordinances were narrowly tailored to further a substantial governmental interest.
4. Whether the trial court erred in its determination that the ordinances are not constitutionally overbroad.
5. Whether the trial court erred when it concluded that the counterclaim by Lion's Den must fail.

In Michael J. Gaby v. State of Indiana , a 22-page opinion, Judge Mathias writes:
Michael Joseph Gaby (“Gaby”) was convicted in Tippecanoe Superior Court of Class A felony child molesting. Gaby appeals and presents three issues for our review, which we renumber and restate as:
I. Whether the trial court erred in allowing the State to amend the charging information;
II. Whether the trial court abused its discretion in permitting the State to refresh the recollection of the victim when the victim did not evidence a lack of recollection;
III. Whether the State’s arguments constituted prosecutorial misconduct; and
IV. Whether the trial court erred in ordering Gaby to serve his sentence as a credit restricted felon. * * *

Conclusion. The trial court did not err in permitting the State to amend the charging information, and the amended charging information is not overly broad. The trial court did, however, abuse its discretion in permitting the State to refresh the recollection of a witness who gave no indication that she did not recall the answers to the questions imposed. Further, the prosecutor improperly vouched for M.C.’s credibility. Under the facts and circumstances of this case, we are unable to say that the combined effect of these errors was harmless. Because there was sufficient evidence to support Gaby’s conviction, retrial is not barred by double jeopardy, but if Gaby is convicted after retrial, he may not be sentenced as a credit restricted felon. Accordingly, we reverse Gaby’s conviction and remand for proceedings consistent with this opinion.

NFP civil opinions today (2):

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

Owen Cobbum, et al. v. Town of Cromwell (NFP)

NFP criminal opinions today (6):

Patrick Jackson v. State of Indiana (NFP)

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

Edward L. Weaver v. State of Indiana (NFP)

Joshua Garrard v. State of Indiana (NFP)

Jason Q. Daugherty v. State of Indiana (NFP)

Phillip Spratt v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 07, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court accepts Daniel E. Serban's resignation from the Indiana bar

Updating a long list of earlier entries, the most recent this one from May 15th headed "Lawyer's thefts lead to prison,", the Supreme Court has now posted this Order, dated June 3, 2011, that begins:

Respondent has tendered to this Court a resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately.

Posted by Marcia Oddi on Tuesday, June 07, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - The updated collection of documents in the Barnes case

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

New as of 6/7/11: New additions are the 11/23/09 Brief of Appellant (Barnes) in the Court of Appeals, and the 6/3/10 Appellant's Response to the State's Petition to Transfer.

[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 Tuesday, June 07, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Law - FWJG: "Lawmakers loosen some convictions"

The second part of this June 3, 2011 ILB entry (beginning with "Ironically ...") was on Indiana's new expungement law, HEA 1211. Today the Fort Wayne Journal Gazette has this editorial from Tracy Warner:

The Indiana General Assembly killed a good bill to reform Indiana’s criminal-sentencing laws but preserved and adopted one of its worst elements.

In a law that takes effect July 1, criminals convicted of certain crimes have a way to make records of those crimes go away if they have a clean record for eight years after the conviction.

House Enrolled Act 1211 applies to people convicted of misdemeanors and the lowest level of felonies, provided the crimes were non-violent and were not sex crimes.

“If a court orders a person’s records to be restricted under this chapter, the person may legally state on an application for employment or any other document that the person has not been arrested for or convicted of the felony or misdemeanor,” the law states.

The convicted person must ask a court to act, but as long as the petitioner has met the requirements, the law states, “the court shall grant” the petition (emphasis mine).

The goal of reducing the stigma of an old criminal conviction may be admirable, but it changes history and seals what have long been public records. Under this law, for example, political researchers looking into the 2008 conviction of former mayoral candidate Matt Kelty could well be denied access to those records after fall 2016. And Kelty – who now cannot seek local office because of his felony conviction – could presumably run for office after 2016 because, if he were to seek such a court order, he could legally state he had never been convicted of a felony.

To his credit, State Rep. Win Moses – who has a 24-year-old misdemeanor conviction for campaign finance violations – was one of just 14 House members who voted against this new law.

Perhaps his fellow legislators should read some George Orwell, particularly “Animal Farm” or “1984,” where the ruling party’s slogan is “He who controls the past, controls the future.”

Or maybe they already have.

Posted by Marcia Oddi on Tuesday, June 07, 2011
Posted to Indiana Law

Law - More on: Two interesting prison stories

Updating yesterday's ILB entry that quoted an IndyStar story on educational opportunity in Indiana's prisons, NPR's Deena Prichep had an interesting story this morning on Morning Edition, headed "Female Prison Inmates Trained To Start Businesses."

Posted by Marcia Oddi on Tuesday, June 07, 2011
Posted to General Law Related

Ind. Courts - "Lake County might cut public defender staff"

Some quotes from a story in the NWI Times today, reported by Bill Dolan:

CROWN POINT | Lake County officials may sacrifice the jobs of at least 25 defense attorneys to trim more than $600,000 from the public cost of representing indigent criminal defendants.

County Councilman Dan Dernulc, R-Highland, said that is one proposal a committee of council members and County Attorney John Dull are studying under a plan to merge and reduce the support staffs of five Lake Superior Court County and Lake Juvenile Division judges.

"We don't want to curtail justice," Dernulc said, "But we are diligently working on savings of costs and a reduction of risk on our insurance plan," he said.

Dull said they want to replace 32 part-time defense attorneys, who represent juveniles and adults who cannot afford private lawyers, with seven full-time attorneys who would represent the same number of clients for less.

He said they also want to pare the number of court bailiffs by two. * * *

Some of the 32 part-time lawyers are paid less than $9,000 a year, but all cost taxpayers $15,000 a year in insurance coverage.

The proposed full-time lawyers would receive a salary of $50,000 a year.

Posted by Marcia Oddi on Tuesday, June 07, 2011
Posted to Indiana Courts

Monday, June 06, 2011

Ind. Decisions - Re the Barnes ruling, columnist writes: "Police Entry: Rehearing Doubtful"; More

The ILB obtained a copy of an upcoming Indianapolis Star column by Andrea Neal this morning, but didn't use it because it was marked For release June 9 and thereafter (670 words).

However, the embargo was broken this afternoon, the entire column has been posted here.

Some quotes:

Gov. Mitch Daniels, Attorney General Greg Zoeller, House Speaker Brian Bosma, Senate President Pro Tem David Long and the attorney for a man convicted of battery on a police officer all agree: The Indiana Supreme Court went too far when it ruled 3-2 “that there is no right to reasonably resist unlawful entry by police officers.”

The misdemeanant wants the court to rehear the case. And at least one lawyer-blogger says, “it seems almost a sure thing” that the court will reconsider its ruling and narrow its opinion.

It seems more likely the justices will hold their ground. The May 12 decision is an extension of prior case law concluding there is no right to resist unlawful arrest, a policy firmly in place by statute or court ruling in 38 states. To expect the justices to reverse themselves — just because the legislative and executive branches want them to — seems a long shot. * * *

Critics have berated the court for judicial activism that gutted the Fourth Amendment. If the court had ruled the other way — that citizens can resist entry to their homes if they think police are acting illegally — the same activist complaint could have been raised. Since when do citizens have a right to commit battery on police?

This is a matter of state policy that should be decided by lawmakers in consultation with the public — relying on statistical analysis and cool heads. That the court has received death threats for its opinion is unconscionable and a reminder why we have legislatures and courts in the first place: We are a government of laws and not bullies, whether they be the public or the police.

As one ILB reader noted to me: "She obviously does not understand the issue or the court." My slightly more charitable reaction was: "She has missed the nuances. And the retention politics issue, which begs for the rehearing, no matter what the ultimate decision."

[Much More] Compare the Neal column with Indiana Legislative Insight's lengthy article (subscription required) from May 30, 2011, written by the always insightful Ed Feigenbaum -- here is how it concludes:

The general consensus on the street and Inside the Limestone is that the Court will agree to rehear the matter and either issue a ruling much more limited in scope . . . or the Chief Justice will author a new opinion joined by the original two dissenters that will largely mitigate the expansive scope of the original ruling while not giving short shrift to the issue of domestic violence.

But if the Court agrees to rehear the matter, justices will be careful not to offer any credit to the public – or public official – sentiment. Bear in mind that Rule 2.4 of the Indiana Code of Judicial Conduct states quite succinctly that "A judge shall not be swayed by public clamor or fear of criticism." The comment to the Rule elaborates – and seems to be directly relevant to the situation today: "An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge's friends or family. Confidence in the judiciary is eroded if judicial decision making is perceived to be subject to inappropriate outside influences.

But there's more beyond the four corners of the ruling that we alluded to last week, and we'll expand on here.

This is the first time that we can recall the state's top law enforcement officer ever intervening in such a manner, and the joint call by legislative leaders for a rehearing adds to the unprecedented nature . . . and, we believe, may portend the turning of a page in the relationship between the judiciary and the other branches of government and between the judiciary and the Hoosier electorate. For the past dozen years with the consistent composition of the Indiana Supreme Court, there were only isolated complaints about a ruling or two, and no one thought seriously about a non-judicial response to those opinions.

But we sense a change in the air, perhaps boosted by the challenges that we've watched from afar against judges and the judiciary in other states – as we first suggested in our last issue when we discussed the prospect of a potential organized effort to oppose the retention of the opinion's author, Justice Steven David, who faces a retention vote in November 2012 (ironically, he and the Chief Justice sided together on this opinion; we told you back in the 90s that the socialization process on the court found the newest justice on the bench siding more often with the CJ than any other justice would).

"A political action committee and a Facebook page have been created with the goal of recalling Justice David," reports Indiana Lawyer, after several hundred rallied against the ruling at the State House Wednesday – with some protestors specifically targeting Justice David. "Indiana Defending the Fourth Amendment, Recall Justice David" is the name of the Facebook page, although as of Thursday, we found no evidence of any such PAC having been registered. Jeff Houk, a Greenwood insurance agent, is behind the effort.

Formation of such a committee by those now more loosely opposed to Justice David's retention is more important than it might appear at first blush, because Rule 4.2(D) of the Indiana Code of Judicial Conduct (part of the larger Rule regulating political and campaign activities of judicial candidates in public elections) allows candidates for retention to judicial office to engage in certain campaign activities "only if their retention actively is opposed," according to the comment appended to the Rule, although the restriction on activities prior to one year before the election seems to apply only to candidates in partisan and nonpartisan elections.

Specifically, Rule 4.2(D) states that "A candidate for retention to judicial office whose candidacy has drawn active opposition may campaign in response and may: (1) establish a campaign committee and accept campaign contributions .... (2) speak on behalf of his or her candidacy through any medium, including but not limited to advertisements, websites, or other campaign literature; and (3) seek, accept, and use endorsements from any appropriate person or organization other than a political organization."

If opposition were not active or organized (and we don't believe that there has been a specific definition laid down, but we suspect that the Commission on Judicial Qualifications and the Supreme Court itself would, uh, know it if they saw it, so to speak!) until shortly before the election and then swooped in with a big bankroll and media campaign, Justice David could have been blindsided, but the "active opposition" – which would certainly be interpreted to encompass an active PAC – will allow the state's newest appellate judge to get out in front of the debate as he looks toward 2012.

To give you an idea as to what to watch for in a broader context going forward, we'll pass along some words from Sen. Jim Banks (R), a non-attorney, in a report to his constituents on Tuesday. Sen. Banks dissects the ruling, including the justification of post-deprivation remedies now available as part of the change in policy, noting that "It's hard to believe that the court can simply decide that modern conveniences like bail, prompt arraignment and civil recourse actually trump our Constitutional rights."

But, more importantly for our purposes here, Sen. Banks laments that "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 [and ensuring that] 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."

The freshman senator goes on to elaborate that "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."

Don't look for the status quo to which we've become accustomed since the Supreme Court settled into a niche of restored honor after the bizarre 1988 flap over its leadership.

Posted by Marcia Oddi on Monday, June 06, 2011
Posted to Ind. Sup.Ct. Decisions

Law - "With social media, police and reporters grapple over control of ‘message’"

This interesting story by David Krajicek at Poynter.org reports on how law enforcement is using Twitter and Facebook. A sample:

Justin Fenton, a six-year crime beat veteran for the Baltimore Sun, says Twitter alerts are an improvement over the old system: phone calls to a police department’s public information office to ask, “What’s going on?” He gets a text tweet on his phone when a significant crime happens, usually within 20 minutes.

“It’s like I’m a member of the command staff,” Fenton says. He then retweets to his 5,000 Twitter followers, often adding a detail or two. Fenton says the Baltimore PD’s use of Twitter gave him the impetus to begin using social media in his work. “I give them a lot of credit for it,” he says.

The system has limitations: tweets give the barest of details, and the Baltimore police Twitter stream shuts down at midnight. And Fenton says that when he reaches out to police for more information, he often hears, “What we tweeted is all we have.” All 140 characters of it.

Eric Hartley, a reporter for the Capital in Annapolis, Md., says Twitter and Facebook have throttled back information, not opened it up. Hartley wrote in a column that the social media offer “such sketchy information it’s impossible to tell what’s news and what isn’t.” He calls its use by police “a façade of openness.”

At the end of this June 3rd ILB entry, I wrote briefly about Indiana's new expungement law, noting that with respect to arrest and conviction information:
[M]ost of this information is already online in unofficial databases over which the government has no control. Newspapers print arrest reports and stories about convictions. Private companies compile all the records for their for-profit databases. Newspaper stories are stored by Google. Anything that goes up the ladder to the COA is available everywhere.
Add Twitter and Facebook ...

Posted by Marcia Oddi on Monday, June 06, 2011
Posted to General Law Related

Ind. Courts - Updating "Charges in death of fetus should be dropped, experts say"

Updating this list of earlier ILB entries, including this one headed "Thoughts on the new Marion County prosecutor," 6NEWS posted the news late this afternoon that Marion Superior Court Judge Sheila Carlisle has ruled that Bei Bei Shuai will not be released on bond.

The hearing was held April 5, over two months ago, and Shuai has been in jail since charges were filed against her, which was early this year. From the brief 6NEWS story:

Defense lawyers want the charges against the Chinese immigrant dismissed, saying Shuai was trying to commit suicide, not commit murder, and that suicide isn't a crime in Indiana.

Attorney Linda Pence told the judge in April that keeping Shuai in jail is tragic and inappropriate and that allowing the case to proceed would mean that pregnant women could face criminal charges over any behavior that might endanger their fetus, including smoking.

Prosecutor Denise Robinson stressed that the murder statute does not distinguish between pregnant women and non-pregnant women.

Posted by Marcia Oddi on Monday, June 06, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Still more on: Hearing on Planned Parenthood funding cutoff this morning in federal court

Lesley Stedman Weidenbener has a post today on the Louisville Courier Journal Politics blog headed "Indiana’s Daniels doesn’t fade from spotlight."

And as if to make the point, Dahlia Lithwick's weekend legal column for Slate features "Mitch Daniels, Culture Warrior." Some quotes:

This showdown was not just expected by the governor and his allies. It was invited with open arms. This is another example of a state law that pushed the boundaries of permissible abortion regulation in order to force the issue in the courts. Indiana's Family and Social Services Administration secretary, Michael Gargano, opined before the new law was passed that he believed it might violate federal rules and imperil the state's Medicaid funding. Indiana's Legislative Services Agency seconded that conclusion.

But the state legislators who were pushing for the bill went ahead and enacted it on the strength of letters like this one, from the Alliance Defense Fund, which didn't quite promise that the proposed bill was legal, but argued instead that the federal government has never before penalized a state by cutting off federal funds. Citing similar legislation passed in Texas and Missouri, the letter neglected to add that the Missouri statute was struck down in the courts, and that the Texas case was resolved when Planned Parenthood met the conditions demanded of it and created wholly separate abortion facilities. [ILB: Actually, that is what our AG seems to be urging.]

Posted by Marcia Oddi on Monday, June 06, 2011
Posted to Indiana Courts

Ind. Courts - More on: Hearing on Planned Parenthood funding cutoff this morning in federal court [Updated]

Jim Shella of WISH TV has posted this story on this morning's hearings, that concludes:

Planned Parenthood of Indiana says that without the injunction all Medicaid services will stop by June 20. That would eliminate services to 9,300 patients, force the closure of seven clinics and produce layoffs of PPIN employees.

Planned Parenthood argues that the new state law which prevents tax payer funding of PPIN is both unlawful and unconstitutional.

The group also argues that the new law could lead to the federal government cutting off all Medicaid funds to the state of Indiana, totaling $5.3 Billion

Here is Heather Gillers story from the Sunday Indianapolis Star.

[Updated at 2:17 pm] From Heather Gillers of the IndyStar, under the heading "Judge: 10 more days to decide ruling on state's abortion law":

A federal judge said she will take at least 10 more days to decide whether to halt enforcement of a new state law banning Medicaid payments to Planned Parenthood, but that she realizes “time is of the essence.” * * *

Pratt seemed to focus on how much weight to give the memo from federal Medicaid officials. She asked both parties to submit over the next 10 days their take on past case law about whether the federal government’s interpretation of federal law should take priority over other interpretations.

A legal team from the American Civil Liberties Union of Indiana is representing Planned Parenthood. The state, in addition to being represented by the inspector general, is also receiving legal help from the Thomas More Society, a Chicago law firm that works for anti-abortion activists.

Here are some quotes from Ken Kusmer's AP story:
The law signed by Gov. Mitch Daniels on May 10 would cut off about $1.4 million in Medicaid funds to Planned Parenthood, but Falk and Fisher agreed that as much as $5.3 billion in Medicaid funds to the state could be at risk since Medicaid Administrator Donald Berwick rejected changes in Indiana's state Medicaid plan brought on by the law. Berwick told Indiana Medicaid Director Pat Casanova last week that federal law says beneficiaries can obtain services from any qualified provider.

Fisher told Pratt the amount of money at stake in the state-federal dispute isn't resolved yet because Indiana has 60 days to appeal Berwick's decision last week, and the two sides will try to work out a resolution. He referred to the $5.3 billion as a "nuclear option" and conceded under questioning by Pratt that it could happen.

"Does that make you nervous?" she asked Fisher.

"Of course it does," he replied.

Planned Parenthood must show it's likely to eventually prevail in the case before Pratt will grant an injunction, and Falk said Berwick's decision does exactly that.

Posted by Marcia Oddi on Monday, June 06, 2011
Posted to Indiana Courts

Law - Two interesting prison stories

Prison education. Dan McFeely's report today in the Indianapolis Star begins:

Indiana prisoners will no longer be able to earn a taxpayer-funded bachelor's degree or study liberal arts under a shift in state prison-education policy.

Instead, inmates wanting to take college classes could earn credits only toward a work-skills certificate such as welding or work toward a limited number of two-year associate degrees -- but only if those are limited in scope and related to a specific need by an Indiana employer.

The change reflects another step by Gov. Mitch Daniels to reform higher education in Indiana by spending less on traditional liberal arts programs and more on business skills and vocational curriculums. It also comes after the General Assembly passed a two-year state budget that eliminated financial aid for prisoners, a program that cost taxpayers $9 million last year.

Under the new plan, which could go into effect by the end of this year, the Indiana Department of Correction would spend about $2 million on post-secondary education.

Can A Test Really Tell Who's A Psychopath? That is the heading to this 13-minute-long segment on NPR's All Things Considered, reported by Alix Spiegel, that begins:
In November 2009, Robert Dixon took a test to determine whether he was a psychopath.

After 26 years in prison, he was due for a parole hearing. In California, before a "lifer" like Dixon appears before the parole board, a state psychologist must first evaluate whether he poses a risk of further violence if released. To do that, the psychologist administers a test — the PCL-R, or Psychopathy Checklist-Revised — designed to measure whether that inmate is a psychopath.

This test has incredible power in the American criminal justice system. It's used to make decisions such as what kind of sentence a criminal gets and whether an inmate is released on parole. It has even been used to help decide whether someone should be put to death.

Posted by Marcia Oddi on Monday, June 06, 2011
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In Estate of Verna D. Carter v. Holly F. Szymczak, a 10-page opinion, Judge Bailey writes:

Holly F. Szymczak filed a negligence complaint against Verna D. Carter (“Carter”) alleging that Carter’s negligence caused an automobile collision and consequent injury to Szymczak. Upon Carter’s death, the Estate of Verna D. Carter (“the Estate”) was substituted. The Estate appeals a judgment upon a jury verdict in favor of Szymczak. We affirm. * * *

The Estate was not entitled to judgment on the evidence. The evidentiary rulings of the trial court were not a manifest abuse of discretion and did not deprive the Estate of a fair trial. The jury verdict and the judgment entered thereon are affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, June 06, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - 7th Circuit redaction cautions

A "word to the wise" tweet:

AppellateDaily Michelle Olsen
7th Cir.-Redaction Methodology Suggestions (new post on ct website, perhaps due to recent news re: redaction probs)

Posted by Marcia Oddi on Monday, June 06, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Indiana Juvenile justice behind the curve?"

Susan Brown had the story this morning in the NWI Times. The long story begins:

States are taking a hard look at when juvenile offenders should be treated as adults, even as Indiana opens the door wider to prosecuting juveniles as adults.

Connecticut, has stopped treating all 16-year-olds as adults. Similarly, Wisconsin have upped the age limits at which certain offenders may remain under juvenile jurisdiction.

According to the National Center for Juvenile Justice, at least 38 states in 2007 set 17 as the oldest age at which defendants come under juvenile jurisdiction.

Indiana is among them. But since the 1980s, lawmakers have more than tripled the types of crimes for which 16- and 17-year-old juveniles are automatically prosecuted in adult court.

"They just keep taking crimes away from us," Lake County Juvenile Court Judge Mary Beth Bonaventura said.

Bonaventura said, overall, Indiana has taken a "middle of the road" path compared to more hard-line states such as New York, which treats all 16-year-old offenders as adults.

"But we can do better," she said.

Lawmakers have given juvenile courts no jurisdiction over 17 offenses, from attempted murder to dealing in certain drugs if the defendant is at least 16. That's up from perhaps four offenses since the mid-1980s, according to Jeff Bercovitz, an attorney with the Indiana Judicial Center.

And once waived to adult court, repeat offenders find themselves "always waived," Bercovitz said.

From later in the story:
The tightening of juvenile laws in Indiana comes at a time when Bonaventura and other juvenile justice advocates cite research by the National Institutes of Health showing that advanced functions of the brain do not fully mature until well into early adulthood.

The study was used in a 2005 U.S. Supreme Court decision outlawing the death penalty for those younger than 18.

Bonaventura believes the research argues for Indiana creating a youthful offender law, which would offer the rehabilitative benefits of juvenile court into early adulthood, perhaps even until age 25.

"If we know our brains change up to the age of 25 and that's why insurance companies drop their cost (at that age), maybe we should have something available until that age," she said of expanding the purview of the juvenile justice system to older teens and young adults.

Critics contend the extra costs of rehabilitation offered through juvenile courts may be prohibitive, but Bonaventura counters that it actually costs more to house a prisoner.

"We're going to pay now, or we're going to pay later," she said.

Posted by Marcia Oddi on Monday, June 06, 2011
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending June 3, 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 June 3, 2011. It is two pages (and 24 cases) long.

Four 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 May 31, 2011 11:27 AM
Posted to Indiana Transfer Lists

Posted by Marcia Oddi on Monday, June 06, 2011
Posted to Indiana Transfer Lists

Environment - "Supreme Court Declines to Take GE Challenge of Superfund"

Lawrence Hurley reports on the NY Times website today in a story that begins:

The Supreme Court decided today not to take up General Electric Co.'s legal campaign over how U.S. EPA exercises its authority to order companies to clean up hazardous waste sites.

GE, backed by the U.S. Chamber of Commerce, has fought a lengthy battle against the agency's authority under the Superfund statute, formally known as the Comprehensive Environmental Response, Compensation and Liability Act, to issue so-called unilateral administrative orders.

If companies refuse, they can face treble damages and daily fines of up to $37,500.

GE says the law creates an uneven playing field that gives EPA too much leverage in negotiating settlements with companies.

But courts have rebuffed GE every step of the way and the Supreme Court's refusal to intervene in the case, General Electric v. EPA, means the legal issue is decisively resolved in EPA's favor.

GE had previously lost both in the U.S. District Court for the District of Columbia and the U.S. Circuit Court of Appeals for the District of Columbia (E&ENews PM, June 29).

The company's lawyers, led by Kathleen Sullivan of the Quinn Emanuel Urquhart & Sullivan firm, had argued that the orders violate the due process clause of the Fifth Amendment.

Posted by Marcia Oddi on Monday, June 06, 2011
Posted to Environment | Indiana Courts | Indiana Government

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

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

From Sunday, June 5, 2011:

From Saturday, June 4, 2011:

From Friday, June 3, 2011:

Posted by Marcia Oddi on Monday, June 06, 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 6/6/11):

Next week's oral arguments before the Supreme Court (week of 6/13/11):

Wednesday, June 15th

Webcasts of Supreme Court oral arguments are available here.


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

Wednesday, June 8th

Next week's oral arguments before the Court of Appeals (week of 6/13/11):

Next Tuesday, June 14th

Next Wednesday, June 15th

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

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


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

Posted by Marcia Oddi on Monday, June 06, 2011
Posted to Upcoming Oral Arguments

Sunday, June 05, 2011

Courts - Some of the cases awaiting decision by the SCOTUS

Time is drawing near for the SCOTUS summer vacation. What big cases are still outstanding?

Michael Kirkland at UPI has a lengthy story today listing five:

SCOTUSblog reports the Court is expected to issue one or more opinions on June 6th. Here is that blog's most recent Stat Pack.

Posted by Marcia Oddi on Sunday, June 05, 2011
Posted to Courts in general

Courts - More on "The Confidential Nature of Lawsuits"

Updating this ILB entry from May 31, 2011, here is a 2010 law journal article titled "Pseudonymous Litigation," authored by Lior Strahilevitz of the University of Chicago Law School.

"The essay examines how [its suggested] approaches would have played out in Doe v. Smith, a Seventh Circuit invasion of privacy case that expressed misgivings about permitting pseudonymous litigation despite quite sympathetic facts."

Posted by Marcia Oddi on Sunday, June 05, 2011
Posted to Courts in general

Saturday, June 04, 2011

Ind. Gov't. - "Budget legislation codifies collective bargaining ban"

The summary of the final budget bill, provided by Speaker Bosma's office on April 29, 2011, included these items on p. 4:

EMPLOYMENT & PAY ISSUES

• Establishes the State Civil Service System, provides for state employees to be classified into either the state classified or the state unclassified service, and voids administrative rules concerning state employment
• Provides that collective bargaining in state agencies and strikes by state employees are illegal

The text of these provisions is located on pp. 116-129 of the enrolled version of HB 1001. Because trying to look at the entire 300-page bill online is unwieldy, I have extracted those pages and posted them here.

What is the significance of these changes?

The answer is here, in this story by Maureen Hayden, statehouse bureau chief for CNHI Indiana newspapers, published in the June 2, 2011 edition of the Logansport Pharos Tribune:

INDIANAPOLIS — The $28 billion budget bill passed by state legislators in late April does more than lay out spending plans for the next two years.

It also locks into law a ban on collective bargaining for state employees that was issued by executive order six years ago.

The nearly 300-page budget bill contains language that puts into law on July 1 some major changes to the state’s civil service system, impacting how 28,500 state workers are classified, evaluated, and paid.

Those changes range from weakening “last-hired, first-fired” seniority provisions to reducing the number of “merit” employees covered by federal personnel rules that have been in place for state workers since 1940.

Some of the biggest changes, including the ban on collective bargaining, were put into effect by Indiana Gov. Mitch Daniels through an executive order issued soon after he took office in 2005.

But the codifying of those changes — writing them into state law as the Republican-controlled legislature did in April when it passed the budget bill — takes away the power of future governors to issue executive orders to reinstate collective bargaining and other union-favored rights for state workers.

David Pippen, Daniels’ general counsel, said the legislation locks into place indefinitely many of the changes that Daniels ushered in when he set about reorganizing state government six years ago. Those changes paved the way for Daniels to cut the state work force by 7,000 employees, freeze pay increases and outsource some services.

“We’re in the last push,” Pippen said of Daniels’ time left in office, which includes only one more legislative session. “We’ve spent a lot of time working on how government works and we’ve have been acutely aware our time is finite.”

The language that changes how state employees are hired, fired and paid was put into the budget bill late in the session after House Democrats blocked GOP-backed legislation to permanently ban collective bargaining for state workers.

That legislation died after House Democrats staged a five-week walkout. But the bill’s language was revived by Republicans and relocated into the budget bill, along with a number of other non-budget items.

Supporters of the legislation say the effect is protection for a streamlined state government free from union rules and where employees are evaluated and rewarded for effort.

An example they offer: Seniority no longer carries much weight in determining who gets laid off if a state agency’s budget is cut.

“We want to protect employees who are the highest performers,” said Anita Samuel, Daniels’ policy director and assistant general counsel, who helped craft the legislation.

But detractors say its an erosion of workers’ protections that date back to a 1940 federal law aimed at safeguarding civil servants from partisan politics, and a handcuffing of future governors who support those protections.

“This has a chilling effect on all state workers,” said Nancy Guyott, the head of the Indiana AFL-CIO. “This isn’t just Mitch Daniels saying we won’t bargain with you folks. This goes far beyond that.”

Guyott said that under the law, no governor can bargain with state employees without legislative approval — an action not likely to happen anytime soon with Republicans in control of the Statehouse.

Pippen concurred with Guyott on that assessment. “We wanted to codify what our experience has been, so we don’t get into a battle of executive orders that’s happened through the years,” he said.

The failure of past legislatures to approve collective bargaining for state employees is what lead Gov. Evan Bayh, a Democrat, to issue an executive order granting those powers in 1989. Democrat governors who followed him used executive orders to extend and expand collective bargaining for state workers, allowing them to negotiate pay, benefits and work rules.

When Daniels rescinded those executive orders with his own order in 2005, it ended collective bargaining for state workers. As a result, about 90 percent of state employees have opted out of paying union dues.

From a side-bar to the story headed "More on the Changes":
Indiana’s 28,500 state employees will be covered under new work rules approved by the Indiana General Assembly and slated to go into effect July 1.

Among the changes that state employees will see:

  • A change in how employees are categorized. The number of merit employees will be reduced and switched into a new category of “classified” employee. Employees now considered “non-merit” will become “non-classified” employees.
  • A performance-pay system, replacing an old system that granted across-the-board pay increases, will be expanded and made a permanent part of the state personnel system.
  • The way employees are ranked for retention in the event of budget-related layoffs changes: Seniority lessens in value, replaced by job-evaluation scores.
  • The ban on collective bargaining is codified, becoming part of Indiana law. A reinstatement of collective bargaining, first granted by executive order in 1989 and rescinded by executive order in 2005, now requires approval by both chambers of the Indiana General Assembly and the signature of the governor.

Posted by Marcia Oddi on Saturday, June 04, 2011
Posted to Indiana Government

Environment - "IDEM to set E. coli load limit for White River"

Seth Slabaugh reported June 2nd in the Muncie Star-Press in a long story that begins:

MUNCIE -- The state of Indiana is establishing pollution limits for the headwaters of the Upper White River, which is impaired by E. coli bacteria.

The limits are being set in Delaware, Henry and Randolph counties, where the river begins.

Sources of pollution in the watershed include land application of manure, failing septic systems and municipal sewage discharges.

During a recent meeting at Farm Bureau Insurance, officials from the Indiana Department of Environmental Management said the Clean Water Act required the state to establish a pollution load limit for the headwaters. The goal is to reduce pollution to levels that will make the waters fishable and swimmable.

After beginning in East Central Indiana, the river flows south through Madison, Hamilton, Marion and other counties. E. coli load limits already have been established in some of those counties.

Posted by Marcia Oddi on Saturday, June 04, 2011
Posted to Environment

Friday, June 03, 2011

Ind. Decisions - "Mercy for DWI driver overturned: Justices say Noble court lacks power"; Indiana's new expungement law

Niki Kelly of the Fort Wayne Journal Gazette had a May 28th story on the Supreme Court's May 26th opinion in State of Indiana v. Jeffrey Brunner (ILB summary here). From the story:

The Indiana Supreme Court has ruled that a trial court judge didn’t have the authority to reduce a drunken-driving conviction in Noble County.

Jeffrey Brunner pleaded guilty in Noble County in 2000 to a felony charge of operating a vehicle while intoxicated. It was his third conviction for drunken driving. Nine years later, Noble Superior Court Judge Robert Kirsch granted a request from Brunner to reduce his conviction from a felony to a misdemeanor, noting his record had been clean since the last charge and the felony conviction made it difficult to find work and support his family.

The state appealed, and the appellate court found the judge didn’t have authority to reduce the conviction so long after the case was over.

On Thursday, the Indiana Supreme Court agreed, noting a judge’s decision to do so must be made at the time of sentencing or when the original conviction is entered.

The decision noted the difference in stigma and consequences between a misdemeanor and a felony.

“Although it may be equitable and desirable for the legislature to give a trial court discretion in modifying a conviction years later for good behavior, we recognize at this time the legislature has not given any such authority,” the ruling said. “One of the purposes of the discussion regarding sentencing reform is to keep those offenders in prison that need to be in prison and to give more favor to those offenders who deserve an earlier opportunity to be productive citizens. The trial court believed it was assisting a defendant who had demonstrated he was worthy of an opportunity to have his conviction modified. However, at this time, the legislature has not enacted any such authority for the trial court.”

A new law set to take effect July 1 could be used to help Brunner. It would restrict access to his felony conviction to police only and allow him to check “no” when asked on job applications or other documents whether he has been arrested or convicted of a felony.

Ironically, the FWJG had an editorial earlier this year (3/7/11) criticizing the expungement provision which was then a part of the massive sentencing revision proposal, SB 561:
The most problematic is part of a wide-ranging, mostly sound proposal to reduce Indiana prison populations by encouraging counties to help rehabilitate criminals convicted of nonviolent, lower-level crimes.

A portion of the bill would restrict access to the court records of such criminals eight years after they complete a sentence. Further, it would allow people who were arrested but not prosecuted to petition to have their arrest records sealed to the public but not to law enforcement agencies.

The proposal is apparently intended to help lower-level criminals find and keep jobs by keeping employers from finding out about older convictions. But savvy employers may well have access to databases that would allow them to find the information anyway. The plan would force the criminal justice system to pretend to the public as though an arrest and conviction never happened. Wiping away blocks of court information clearly would not serve the public.

The language is now in HEA 1211, whose final digest reads:
Provides that a person charged with a crime may petition a court to restrict disclosure of arrest records related to the arrest if the person: (1) is not prosecuted or if charges against the person are dismissed; (2) is acquitted of all criminal charges; or (3) is convicted of the crime and the conviction is subsequently vacated.

Provides that eight years after the date a person completes a sentence and satisfies any other obligations imposed on the person as a part of the sentence, the person may petition the sentencing court to restrict access to the person's arrest and criminal records.

The latter provision, effective July 1, 2011, adds a new chapter to the Indiana Code titled IC 35-38-8. Restricted Access to Conviction Records.

ILB comments. In the age of the internet, can this new law really have the intended effect? Or is it too late for such efforts; is this pretty much a futile exercise?

For instance, a petition to expunge records is itself not secret. Nor should it be. I expect the petition will be listed on JTAC and/or Doxpop. So filing a petition may simply bring attention to the old conviction.

Furthermore, most of this information is already online in unofficial databases over which the government has no control. Newspapers print arrest reports and stories about convictions. Private companies compile all the records for their for-profit databases. Newspaper stories are stored by Google. Anything that goes up the ladder to the COA is available everywhere.

What about Jeffrey Brunner himself? If he is eligible under the new law, he may file a petition. If granted, it will not erase last week's court decision, or newspaper reports about it.

For more, see this Nov. 1, 2009 ILB entry. A sample: "There's no such thing as privacy of criminal records anymore."

Posted by Marcia Oddi on Friday, June 03, 2011
Posted to Ind. Sup.Ct. Decisions

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

In Vance v. Ball State Univ. (SD Ind., Barker), a 25-page opinion, Judge Wood writes:

Maetta Vance was the only African- American working in her department at Ball State University (“Ball State”) when racially charged discord erupted. In 2005, Vance began filing complaints with Ball State about her coworkers’ offensive conduct, which included the use of racial epithets, references to the Ku Klux Klan, veiled threats of physical harm, and other unpleasantries. In 2006 she filed two complaints with the Equal Employment Opportunity Commission (“EEOC”) for race discrimination and, later, retaliation. After getting her right-to-sue letter, she filed this action in federal court alleging a range of federal and state discrimination claims. The district court granted summary judgment for the defendants and dismissed the case. On appeal, Vance pursues only her hostile work environment and retaliation claims against Ball State based on asserted violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. Because she has not established a basis for employer liability on the hostile work environment claim or put forth sufficient facts to support her retaliation claim, we affirm.

Posted by Marcia Oddi on Friday, June 03, 2011
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In J.H. v. State of Indiana, a 16-page opinion with a concurring opinion beginning on p. 8, Sr. Judge Sharpnack writes:

Respondent-Appellant J.H. appeals the restitution order issued by the Marion Superior Court, Juvenile Division. We reverse and remand with instructions. * * *

[Issue] Whether the trial court’s $1,117.65 restitution order was based on reasonable evidence. * * *

J.H. and the State reached a plea agreement whereby J.H. admitted to attempted unlawful residential entry, and the State dismissed the criminal mischief allegation. The plea agreement left open the issue of restitution.

Shortly before the initial hearing, the victim gave the deputy prosecutor a piece of paper that she described as an “estimate.” No copies were provided to the defense or the court, and no additional evidence was offered in support of the estimate. The estimate, The estimate, from a person identified as “Mr. Fix It,” stated that it would take $850.00 to replace the door’s window and $150.00 to tint the window.

J.H.’s counsel requested the setting of a restitution hearing so that Mr. Fix It and his estimate could be investigated. Counsel noted that $1,000 seemed “like an awfully large sum of money for a door.” After some discussion, a disposition hearing was set, with the possibility of a hearing on restitution.

Immediately before the disposition hearing, the victim again gave the deputy prosecutor a piece of paper she described as an “estimate.” This time the estimate was for $1,117.65 from Tucker’s Construction. Again no copies were provided to defense counsel or to the court, and no additional evidence or testimony regarding either estimate was presented. Defense counsel informed the court that it had subpoenaed the man identifying himself as “Mr. Fix It,” but the man did not show up for court. When defense counsel objected to the new estimate, the court commented that it was “just $117 more” than the first estimate. * * *

Here, on two separate occasions, the victim waited until shortly before the hearing to give the deputy prosecutor a piece of paper with a dollar amount on it. The deputy prosecutor informed the juvenile court of the victim’s late submissions and of the amount on the papers. The deputy prosecutor made no other statements and presented no other evidence to show the legitimacy of the pieces of paper. Neither of the purported estimates was placed into evidence and neither is available for our review, so we cannot determine whether the dollar amounts were listed on papers containing any information, such as a letterhead, which would show the court that the paper came from a legitimate business. Furthermore, neither “estimate” showed the cost of labor and materials. Most importantly, the juvenile court failed to recognize that the State held the burden to establish the validity of the “estimates.” We can come to no other conclusion than that the “estimates” were mere speculation or conjecture and that the juvenile court’s order is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. * * *

We reverse and remand with instructions that the juvenile court vacate its restitution order. If the State so desires, a new restitution hearing, consistent with this opinion, shall be conducted.

FRIEDLANDER, J., concurs.
MAY, J., concurring with separate opinion. [that concludes, beginning at p. 15] I cannot find it “unfair” for us to have access to a document that is part of the Record on Appeal because the clerk failed to include it in the Record provided to counsel, or because counsel did not request the clerk print it so as to include it in the Appendix.[10] Rather, what I view as “unfair” in this circumstance is that we must ask an already over-burdened trial court to hold another hearing and issue another order regarding restitution, when the entire Record was not provided on Appeal, and Appellee’s counsel did not provide an appendix including the missing parts of the Record.

While I concur with the majority’s result, our decision must be read in light of the procedural missteps by trial counsel, the clerk, the trial court, and appellate counsel, as I have noted herein. These issues are not unique to this case, and are troubling when liberties are at stake. Parties to an appeal and trial courts must strive to provide a complete and accurate record of the events before the trial court in order to assure we are able to provide meaningful review on appeal.
__________
[10] Appellant’s counsel represented to this court that he never received a copy of the victim’s impact statement. As a result, I believe the initial error originated with the clerk’s office. However, neither appellant’s nor appellee’s counsel provided an appendix including the missing parts of the Record. See App. Rules 49(A) and 50(B)(2) (permitting an appellee to file an appendix that supplements the appellant’s appendix). Additionally, trial courts must exercise diligence when preserving for appeal those items the parties submit to them. In this case estimates referenced in open court were not copied for the court or opposing counsel, and allegedly cannot be found in the clerk’s paper record or on the electronic docketing system; documents scanned into quest were not included in the record provided to counsel by the clerk; and many entries on the CCS are vague or incomplete. Inadequate organization and compilation of the record hinders our ability to review the issues raised on appeal.

NFP civil opinions today (0):

NFP criminal opinions today (6):

Robert J. Boswell v. State of Indiana (NFP)

Nicholas Mills v. State of Indiana (NFP)

John Warren v. State of Indiana (NFP)

Timmy Todd Zieman v. State of Indiana (NFP)

Bryan Ward v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Friday, June 03, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Ameristar, Foundations win on E.C. development agreement"

Keith Benman of the NWI Times reports:

INDIANAPOLIS | The Indiana Gaming Commission by a 6-0 vote on Thursday approved a new local development agreement that could mean more money for the city of East Chicago in the long term and keep money flowing to the Foundations of East Chicago.

The approval came despite a plea from East Chicago Mayor Anthony Copeland to direct all local development money, about $10 million per year, to the city government to spend on economic development. * * *

Copeland was backed by Indiana Attorney General Greg Zoeller, who told the commission all the money should go to the city in order to win back the trust of the people of East Chicago.

The Foundation's lawyer, Peter Rusthoven, of Barnes and Thornburg, argued just as vigorously that the Foundations always had been a trustworthy recipient and would continue to be so in the future.

There is more to the story, which is the latest in a long-time dispute that has generated much litigation, but the ILB has lost track ... The June 6, 2011 issue of Indiana Gaming Insight ($$$) has good coverage.

Posted by Marcia Oddi on Friday, June 03, 2011
Posted to Indiana Government

Ind. Courts - Porter and Lake County courthouses in the news

"Porter County courthouse shut down by water main break" is the headline to this story today from James D. Wolf Jr., Gary Post-Tribune correspondent. However, "Business should resume as usual in the courthouse today."

Diane Krieger Spivak of the Post-Tribune has a story today headed "Crown Point billionaire challenges public to patch up courthouse ." The story begins:

CROWN POINT — Dean White is challenging his fellow Northwest Indiana residents to dig into their pockets and help preserve a part of their history.

White, Crown Point’s resident billionaire, listed by Forbes as one of the 400 wealthiest people in America, has offered up to $2 million in matching funds toward the restoration of the Old Lake County Courthouse.

Posted by Marcia Oddi on Friday, June 03, 2011
Posted to Indiana Courts

Sports Law - "Lawyers will be the stars as NFL labor battle goes back in session; Owners and players turn to star lawyers to argue case in appellate court today"

How Appealing has collected a number of news stories today under this heading.

Posted by Marcia Oddi on Friday, June 03, 2011
Posted to General Law Related

Thursday, June 02, 2011

Law - "Federal Adoption Tax Credit Accounts For Huge Refunds"

A story from Blake Ellis at 6News begins:

NEW YORK (CNNMoney) -- Tina and Kenny Thomas filed their taxes in February and are still waiting for their refund.

The Thomas's are expecting a whopping $65,000 check from the IRS this year, thanks to the adoption tax credit they claimed after adopting five special needs children from foster care over the past few years.

More from the lengthy story:
Thousands of other Americans who adopted children over the last five years and filed for the adoption credit are in limbo as well, waiting for similarly large sums from the IRS. The adoption tax credit gives parents who adopt children as much as $13,170 per child -- up from a cap of $12,150 last year. And this is the first year the credit is refundable, meaning the money goes directly into a qualifying taxpayer's pocket, rather than being applied to future taxes owed.

That's especially helpful for lower income families because they get the cash even if they don't owe any taxes.

A typical private adoption runs about $30,000, so the credit was intended to help families by reimbursing expenses, such as court fees. Parents who adopt "special needs" children, however, can receive the entire credit even if they had no expenses.

But because of the huge amounts of money adoptive parents are claiming this year, the IRS is being extra vigilant before it doles out thousands of dollars. * * *

In its latest report on the tax filing season, the Treasury Inspector for Tax Administration found that, by the end of April, the IRS had received returns from 72,656 taxpayers claiming more than $897 million in adoption credits. About 58% of those claims were sent for further review, and will be audited to verify that proper documentation was submitted and that the amount of money being claimed is correct.

Posted by Marcia Oddi on Thursday, June 02, 2011
Posted to General Law Related

Ind. Gov't. - "Don't drive Marion County Library patrons away" ILB observations

An editorial today in the Indianapolis Star notes that visitors are down since the budget cuts:

New figures from the Indianapolis-Marion County Public Library suggest a syndrome more commonly associated with mass transit:

Reduction in service leads to reduction in use, which starts a vicious cycle. * * *

Record numbers of residents were using the libraries when the decision was made to lay off 37 employees, shorten hours, add a day of closing each week and reduce the budget for books and other new materials. Since then, visits have declined 16 percent and circulation 4 percent; though, in keeping with the times, website use has seen a slight uptick.

ILB observations: Until the cutback, I journeyed to the Main Library several times a week. Now my visits total less than once a month. Why? (1) Later opening time -- I used to stop at the library when it opened at 9, as it is right on my route when doing early morning chores. Now it doesn't open till 10. (2) Closed on Thursdays -- ironically, it is usually a Thursday when I think about a trip to the library. (3) End of free first 1/2 hour parking in lightly-used underground garage. Now it costs a dollar. -- This no-longer-available convenient parking was a godsend for older people of limited means stopping by to pick up books they had placed on hold. (4) Fine for cancelling book on hold. -- I used to have a long list of holds, which you may conveniently place on-line. But it may be many months before a book you have requested becomes available, you may no longer have need of it. Notice comes out of the blue, with no advance warning. If you cancel your request at that point, you are now fined $1. Or if the weather is bad and you can't get to the library to pick up the hold in the time allowed, you are fined $1, as again, you can't cancel without penalty and it costs $1 to stop in the garage for the time needed to pick it up.

Although some of these issues may not affect me personally, they may go to show why the library is losing some of its older, most-frequent, patrons.

Posted by Marcia Oddi on Thursday, June 02, 2011
Posted to Indiana Government

Ind. Decisions - 7th Circuit posts two Indiana opinions released earlier in typescript

They are Roche Diagnotics v. Medical Automation Systems (SD Ind., Barker)(see 5/25/11 ILB entry) and U.S. v. Sellers (ND Ind., Lozano) (see 5/20/11 ILB entry).

Posted by Marcia Oddi on Thursday, June 02, 2011
Posted to Ind. (7th Cir.) Decisions

Environment - More on "Attica pollution lawsuit gains class action status"

Updating this ILB entry from Sept. 29, 2010, Crain's Chicago Business reported on May 24th in a story by Kate MacArthur that begins:

(Crain's) — Kraft Foods Inc. has been ordered by a federal court to pay $8.1 million to 124 families in Attica, Ind., following a class-action lawsuit alleging that one of the foodmaker's factories contaminated air and water inside their homes.

According to the settlement, approved last Friday by a federal judge in Indianapolis, the Northfield-based company also must clean up the plant site and groundwater and install systems to manage the contamination in the affected homes.

The suit was filed in March 2009 by Susan and Patrick Stoll, Mary and Charles Bowles and more than 100 others. In it, they claimed that chemicals including vinyl chloride and trichloroethylene had been spilled at the plant since 1957 and that those chemicals had leaked into the groundwater, seeped into their homes and caused toxic vapors.

Kraft never operated on the site, but acquired it in the 1970s-80s. Kraft is reportedly remediating the site.

Posted by Marcia Oddi on Thursday, June 02, 2011
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Shepherd Properties Co., d/b/a Shepco Commercial Finishes v. International Union of Painters and Allied Trades, District Council 91, a 7-page opinion, Judge Bailey writes:

[Issue] [W]hether the trial court erroneously applied APRA in imposing joint and several liability for attorney’s fees upon ShepCo as well as a public agency.

ShepCo was a subcontractor for a public works project, construction at Stonybrook Middle School, in the Metropolitan School District of Warren Township in Marion County. * * *

Although we must liberally construe APRA to implement its policy of public access, we cannot contravene or expand the statutory scheme enacted by the legislature. Heltzel v. Thomas, 516 N.E.2d 103, 106 (Ind. Ct. App. 1987), trans. denied. The attorney’s fees
provisions of APRA are directed toward public agencies. There is no corollary provision for assessment of attorney’s fees against a private party in the event of improper nondisclosure.

Accordingly, the trial court erroneously imposed upon ShepCo joint and several liability for statutory attorney’s fees under APRA. Absent a fee shifting statute or contractual provision for the payment of attorney’s fees, the American Rule – that each party ordinarily must pay his or her own attorney’s fees – is applicable. See H & G Ortho, Inc. v. Neodontics Intern., Inc., 823 N.E.2d 734, 737 (Ind. Ct. App. 2005). As such, ShepCo is not liable for the Union’s attorney’s fees and the denial of the motion to correct error was an abuse of discretion.

Conclusion. APRA encompasses public agencies to which specific requests for governmental affairs information are directed. As such, a private entity such as ShepCo is not liable for attorney’s fees under APRA for nondisclosure of public records. Warren Township, the public agency having denied access, is liable.[6] * * *
_____________
[6] But see Indianapolis Newspapers, 739 N.E.2d at 152 (finding that the Lottery, holding information to which one party claimed a statutory entitlement and another party claimed a proprietary interest, was not precluded from seeking Indiana Trial Rule 22(D) interpleader in an APRA action).

In Larry Ault v. State of Indiana, a 10-page opinion, Judge Bradford writes:
Following a jury trial, Appellant-Defendant Larry Ault was convicted of Murder, a felony, and sentenced to fifty-five years in the Department of Correction. Upon appeal, Ault claims that the trial court abused its discretion in denying him a jury instruction on self-defense, forcing him to testify in violation of his Fifth Amendment rights. Concluding that there was sufficient evidence, without Ault's testimony, to support a jury instruction on self-defense, we reverse and remand for a new trial.* * *

[ILB: At issue here is the "no retreat" self-defense statute, IC 35-41-3-2, which has been discussed recently in light of the Supreme Court's decision in Barnes. Here the trial court refused to give the self defense instruction. In Barnes, apparently the issue was not raised.]

Here, the facts at trial established that Parrish had driven to Ault's house and was standing on his property; that Parrish was shouting, threatening Ault face-to-face with bodily injury; that Parrish had taken the additional action of removing his coat and throwing it inside his vehicle; and that upon removing his coat, Parrish had indicated that his attack on Ault would be “now.” The trial court specifically found that these facts were adequate to establish the objective component of self-defense. Given the broad use in Indiana of circumstantial evidence to show an individual's state of mind, and in light of Hilbert and Hoskins, we must conclude that these facts were similarly adequate to support a reasonable inference regarding the subjective component of self-defense, namely that Ault believed deadly force was necessary to protect himself. We therefore conclude that the trial court abused its discretion in refusing to instruct the jury on self-defense without Ault's testimony.

Having found error in the trial court's refusal to instruct on self-defense without Ault's testimony, we need not address whether the trial court's requiring Ault to testify constitutes a Fifth Amendment violation. The State does not argue that there was harmless error in this case, and we cannot conclude that the denial of Ault's self-defense instruction on these facts was harmless.

The judgment of the trial court is reversed, and the cause is remanded for a new trial.

NFP civil opinions today (2):

David W. Johnson and Priscilla Johnson v. Madison Regatta, Inc., and American Boat Racing Association (NFP) - Brief 6News story here.

Estate of Maurice Kendrick, Sr., Susan K. Kussart, as Guardian of B.K. v. Estate of Maurice Kendrick, Sr., Crystal Burke-Potts, et al. (NFP)

NFP criminal opinions today (4):

Stephen Ray Jones, Jr. v. State of Indiana (NFP)

Kem Linn v. State of Indiana (NFP)

Herman Cecil Mallory v. State of Indiana (NFP)

Jason L. Prater v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 02, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - "Enforcement Of Indiana Texting Ban Questionable: Law Becomes Effective July 1"

Really, a look at the digest of HEA 1129 gives a clue ...

DIGEST OF HB 1129 (Updated April 29, 2011 11:57 am - DI 96)

Use of telecommunications device while driving. Provides that it is a Class C infraction if a person uses a telecommunications device to type, transmit, or read a text message or an electronic mail message while operating a moving motor vehicle, but permits a person: (1) to use hands free or voice operated technology to transmit a text message or an electronic mail message; and (2) to call 911 to report an emergency; while operating a moving motor vehicle. Provides, for purposes of the prohibition against using a telecommunications device while operating a motor vehicle, that "telecommunications device" does not include: (1) amateur radio equipment operated by a person licensed by the Federal Communications Commission as an amateur radio operator; or (2) a communications system installed in a commercial motor vehicle weighing more than 10,000 pounds. Prohibits a police officer from confiscating a telecommunications device for the purpose of determining compliance or confiscating a telecommunications device and retaining it as evidence pending trial for a violation. Repeals the current definition of "telecommunications device".

6News' Jack Rinehart had this story (see also the video) yesterday:
INDIANAPOLIS -- A new Indiana law aimed at banning texting and emailing while driving goes into effect on July 1, but enforcement of that law could prove tricky.

Typing, transmitting or reading text messages or email while driving will be punishable by up to a $500 fine, but how officers will track that offense is murky, 6News' Jack Rinehart reported.

"I don't know how they really know you're texting, but all they have to have is reasonable suspicion that you're texting to pull someone over," said Joel Schumm, professor at the Indiana University School of Law-Indianapolis.

Smartphones have a lot of capabilities, and the available applications are growing at a rapid pace. Because the law explicitly targets texting and emailing, a lot of other potentially distracting applications involving phones aren't regulated.

"You see someone driving along looking at their phone. Is that reasonable suspicion that they're texting while driving?" said Joel Schumm, professor at the Indiana University School of Law-Indianapolis. "Do you write them a ticket for that? What happens when you go to traffic court and you say, 'I was looking at my GPS,' and they say, 'You were looking down. I think you were texting.'"

Aside from cellphones, there are numerous other distractions while driving that aren't regulated, such as adjusting a stereo or eating, that can have the same effect as texting or emailing while driving.

"What's the difference if I'm eating Taco Bell or something, or some woman's putting on her makeup?" Schumm said.

Ryan Klitzsch, director of the traffic safety division of the Indiana Criminal Justice Institute, said last month that he hopes the ban will eliminate one of the top driving distractions.

"What we're hoping to see is a reduction here of crashes and collisions because, really, the bad thing about texting and driving, is that it impairs your visual cognitive and your coordination when driving," he said.

Drivers will still be allowed to use hands-free or voice-operated devices for texts or emails.

See also this ILB entry from Aug. 2, 2010, headed "Enforcement lax for Indiana's ban on teen texting while driving"."

Posted by Marcia Oddi on Thursday, June 02, 2011
Posted to Indiana Law

Ind. Decisions - Suspended attorney fined for practicing law

In an order dated May 27, 2011, in In the Matter of Richard M. Bash, the Court writes:

The Court suspended Respondent from the practice of law for no less than 180 days without automatic reinstatement beginning March 21, 2008. Respondent filed a petition for reinstatement on December 23, 2008, which is pending before a hearing officer. The Commission filed a "Verified Petition for Rule to Show Cause" on February 3, 2011, asserting Respondent practiced law in this state by representing clients while suspended from the practice of law. The Court issued an order to show cause on March 4, 2011, and Respondent filed a response on April 4, 2011.

The Commission alleges that in May 2009, after two youths broke a window at the home of a friend of Respondent's, Respondent went to the home of one of the youths and gave the mother an "invoice" for $917.72 for the resulting damages, including round trip air fare to Indiana from Arkansas, where Respondent was then living. He gave the mother a business card reading: "Law Office of Richard Bash." Later, Respondent and his friend filed suit as co-plaintiffs against the parents of the youths. The complaints were signed by only Respondent and sought damages of $1,370.32, plus attorney fees. The suits were consolidated, and Respondent and his friend were eventually awarded judgment for $645.00, with each set of parents responsible for half. * * *

This Court has inherent and statutory authority to punish contempt of court by fine and imprisonment. See Matter of Mittower, 693 N.E.2d 555, 559 (Ind. 1998). In determining an appropriate punishment, the Court considers, among other factors, any continuing risk to the public or profession. See id. Respondent's violations of the suspension order do not appear to be ongoing misconduct. Under the circumstances, the Court concludes that a fine of $500.00 is sufficient discipline for Respondent's contempt of court by practicing law while suspended. The Court will, however, take this incident into consideration if Respondent pursues his petition to be reinstated to the practice of law.

The Court therefore ORDERS that Respondent be fined the sum of $500.00.

ILB: Here, thanks to Google Scholar, is a copy of the April 9, 1998 Supreme Court ruling in Matter of Mittower.

Posted by Marcia Oddi on Thursday, June 02, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Feds: Cutting Planned Parenthood's funding violates Medicaid rules"

Updating earlier ILB stories about HEA 1210 and PPHIN, see this story today by Heather Gillers and Mary Beth Schneider of the Indianapolis Star. Some quotes:

Federal officials said Wednesday that the new Indiana law cutting Medicaid funding to Planned Parenthood violates Medicaid rules -- a determination that could cost the state millions and possibly even billions of dollars.

The U.S. Department of Health and Human Services informed state officials by letter that it was denying Indiana's new Medicaid plan because states can't pick and choose where recipients receive health-care services.

What happens next is, at best, a guess. But almost certain is that it will add fuel to a legal and political battle likely to be watched closely across the nation. * * *

The state Family and Social Services Administration -- caught between state and federal law -- said it would seek guidance from Indiana Attorney General Greg Zoeller.

"For now, our lawyers advise us that we must continue to follow the law the Indiana General Assembly passed," said FSSA spokesman Marcus Barlow.

Zoeller spokesman Bryan Corbin said that the office is working with FSSA to determine its options, "but we will continue to defend the statute."

Gov. Mitch Daniels, who signed the bill into law, declined to comment Wednesday.

There also is the matter of the courts. The law, which took effect May 10, is being challenged in federal court by Planned Parenthood on various grounds. The next court date is scheduled for Monday.

The law made Indiana the first state to cut off Medicaid funding to Planned Parenthood and ended roughly $1.3 million in annual payments to the health-services provider. * * *

During debate on the bill, FSSA Secretary Michael Gargano had expressed concerns that it would run afoul of federal Medicaid policy and jeopardize the $4 million in Medicaid family-planning funds the state receives each year.

Federal Medicaid officials seemed to suggest that the stakes are even higher.

"We fully expect that the state will follow federal law that sets the conditions for its receipt of over $4 billion in federal Medicaid funds," said one federal Medicaid official.

That $4 billion pays for not only reproductive health care but also services for children, the disabled and the elderly.

Thanks to Fox59, here is a link to the 2-page letter from HSS. Note this paragraph from the end of page 1:
We assume this decision is not unexpected. As the Indiana Legislative Services Agency indicated in its April 19, 2011 fiscal impact statement, "While States are permitted to waive a recipient's freedom of choice of a provider to implement managed care, restricting freedom of choice with respect to providers offamily planning services is prohibited."

Posted by Marcia Oddi on Thursday, June 02, 2011
Posted to Indiana Law

Wednesday, June 01, 2011

Courts - How to become a federal judge

From The Blog at Legal Times this entry today that begins:

Frustrated by the lack of centralized information on the process for becoming a federal judge, a coalition of legal groups has created its own booklet about the process.

With an electronic version and an initial printing of 10,000 copies, the legal groups are planning to distribute the booklet to law schools and young lawyers. The booklet explains the mechanics of the White House nomination process and the rigors of Senate confirmation, and it lays out the varied paths taken by six federal judges.

The BLT entry contains several useful links, including this one to the book itself, “The Path to the Federal Bench,” a guide to becoming a federal judge.

Posted by Marcia Oddi on Wednesday, June 01, 2011
Posted to Courts in general

Law - More on "Illinois has issued its first civil union license, launching a historic day for same-sex couples across the state."

Updating this ILB entry from earlier today, the Gary Post-Tribune has a story posted at noon by Darryl Holliday, headed "Couples line up for licenses as Illinois’ civil union law takes effect ."

Accompanying it is a brief story headed "Indiana moves farther away from civil unions." Some quotes:

As Illinois on Wednesday become one of just a handful of states nationwide to allow civil unions for gay couples, the last session of the Indiana General Assembly saw Indiana move farther away from it.

The Republican-controlled legislature in Indianapolis voted for an amendment to the state constitution that would ban gay marriage and civil unions.

During the Senate debate in March, while many House Democrats were protesting the GOP’s agenda at a hotel in Urbana, Ill., executives of Eli Lilly and Co. and Cummins Inc. argued that the constitutional ban could hurt the Hoosier state’s image.

Posted by Marcia Oddi on Wednesday, June 01, 2011
Posted to General Law Related

Courts - Illinois Supreme Court moves to public domain citation system

The Madison Record reports in a long story dated May 31, 2011 that begins:

In another bow to the digital age, those bulky law books containing officially reported Illinois court opinions soon will be going the way of 8-track tapes and boom boxes.

The Illinois Supreme Court announced Tuesday a new way of officially citing its cases and those of the Illinois Appellate Court. This new method will eliminate the need to contractually publish and purchase the official opinions in bound volumes. It will save Illinois taxpayers hundreds of thousands of dollars a year.

Illinois will join about a dozen other states that already use the new method of case citation. [ILB: Nearby states, in addition to Illinois, are Wisconsin and Ohio. Wisconsin was the first state to move to "vendor neutral," "medium neutral" citation.] The Supreme Court promulgated the changes in amendments filed Tuesday to Supreme Court Rule 6 and Rule 23.

"The changes are reflective of the way we all live and the way the practice of law is changing," said Chief Justice Thomas L. Kilbride. "So much legal research is now done online through references and sources available on the Internet and even on smartphones that it makes the publication and purchase of official printed volumes unnecessary and a waste of money and resources.

"The official body of Illinois court opinions will now reside on the website of the Illinois Supreme Court, readily available to lawyers, judges and law clerks for official citation and to any member of the public who wishes to read them."

The ILB has obtained a copy of the new Illinois Supreme Court rule.

Here is a 4-page July 1998
publication of the American Ass'n of Law Libraries discussing "the path to citation reform" -- it includes of 11 states participating as of that date.

These are also called "neutral citations." For more, see this 37-page paper by Peter W. Martin of Cornell Law School, titled "Neutral Citation, Court Web Sites, and Access to Case Law."

[More] The Law Librarian Blog has just posted this entry, headed "Illinois Reports 1831 - 2011 RIP."

Posted by Marcia Oddi on Wednesday, June 01, 2011
Posted to Courts in general

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

For publication opinions today (2):

In Eddie Vance, Jr. v. State of Indiana, an 8-page opinion, Judge Riley writes:

Vance argues that the trial court did not have personal jurisdiction to order the execution of his sentence in FB-13 after he was released by the DOC. Jurisdiction of the person “refers to the particular parties who are brought before the court, and the right of that particular court to exercise jurisdiction over those parties.” * * * Judgments entered in the absence of personal jurisdiction are voidable, and a timely objection is required to preserve a challenge to the lack of personal jurisdiction or jurisdiction over the case. * * *

During the hearing on November 8, 2010, Vance argued that imposition of the sentence would violate his rights against double jeopardy under the Indiana and United States Constitution. Vance did not, however, argue that the trial court lacked personal jurisdiction to order the execution of his sentence. Therefore, he has waived this argument on appeal.

Waiver notwithstanding, Vance's argument still fails. * * *

Based on the foregoing, we conclude that the trial court had personal jurisdiction over Vance and acted within a reasonable time when it reordered Vance back to the DOC.

In Jonathan Wirth v. American Family Mutual Insurance Co., a 9-age opinion, Judge Riley writes:
[Issue] Whether the trial court properly determined that American Family is entitled to subrogation for payment of Wirth’s medical expenses. * * *

In sum, we cannot say that the trial court improperly granted summary judgment in favor of American Family. Wirth negotiated his settlement with the tortfeasor, which was completely satisfied as evidenced by the executed Release of All Claims form. In absence of any evidence that the settlement was reasonable and American Family’s lien should be reduced, we find that American Family is entitled to complete repayment of its medical lien.

NFP civil opinions today (1):

Involuntary Commitment of A.K. (NFP)

NFP criminal opinions today (4):

Antione A. Smith v. State of Indiana (NFP)

Joseph K. Todd v. State of Indiana (NFP)

Julius Cabell v. State of Indiana (NFP)

William Soper v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 01, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one opinion today

In Jeffery Sloan v. State of Indiana, a 13-page, 3-2 opinion, Justice David writes:

We hold that once concealment has been established, statutes of limitations for criminal offenses are tolled under Indiana Code section 35-41-4-2(h) (2008) until a prosecuting authority becomes aware or should have become aware of sufficient evidence to charge the defendant. We also hold that under the facts of this case there was no double jeopardy violation because each challenged offense was established by separate and distinct facts. * * *

Sloan last molested M.A. in 1991. M.A. did not disclose the molestations to authorities until 2008. Sixteen years after the last occurrence of molestation, prosecution commenced.

Sloan contends that under Indiana Code section 35-41-4-2(a)(1) the statute of limitations has run for his Class C felony child-molesting charge, and thus the trial court should have dis-missed that charge. The State does not dispute that prosecution commenced more than five years after the last act of molestation. But the State argues that the concealment-tolling provision found in Indiana Code section 35-41-4-2(h)(2) permitted the delayed prosecution. The State ex-plains that because the defendant had taken affirmative acts to conceal the abuse—namely, tell-ing M.A. she would go to jail if she disclosed the molestations—the statute of limitations was tolled until M.A. disclosed the abuse to the authorities in 2008. Sloan concedes that he committed affirmative acts of concealment through his intimidation of M.A.6 but argues that the con-cealment, and tolling, ended in 1991 when his ―coercive influence‖ over M.A. ceased. Sloan as-serts that because prosecution commenced sixteen years after that point, it was well beyond the applicable five-year limitation period.

Resolution of this issue turns on the interpretation of Indiana Code section 35-41-4-2(h)(2): once concealment is established, when does tolling end? * * *

Once concealment is found, the relevant inquiry is when the prosecuting authority becomes aware or should have become aware of sufficient evidence to charge the defendant. At that point, tolling ends, and the statute of limitations begins to run.

We recognize that this strict reading may be problematic for some. * * *

We also acknowledge that a strict reading of Indiana Code section 35-41-4-2(h)(2) could toll the statutes of limitations for many other crimes, not only Class C felony child molesting. Courts will still need to determine whether concealment exists in the first place. But once con-cealment is established, the statute of limitations ceases to run until authorities know or should have known sufficient evidence to charge the person with the crime. In essence, tolling could continue indefinitely—a result that seems at odds with the purposes underlying statutes of limitations. But we are ―careful to avoid substituting [our] judgment for those of the more politically responsive branches. ... This Court will avoid invading the province of the legislature by strictly interpreting the language of Indiana Code section 35-41-4-2(h)(2). We leave it to the legislature to modify the statute if it deems necessary. * * *

We summarily affirm the decision of the Court of Appeals finding Sloan's sentence appropriate in light of his character and the nature of his offenses. App. R. 58(A)(2). We conclude that the trial court properly denied both Sloan's motion to dismiss and motion to vacate and af-firm Sloan‘s convictions and sentences.

Shepard, C.J., and Dickson, J., concur.
Sullivan, J., dissents with a separate opinion in which Rucker, J., concurs.

[From J. Sullivan's opinion, beginning at p. 11 of 13]
I believe that the Court has expanded the tolling period beyond that specified by the statute. The statute does not provide that "once concealment has been found," tolling continues until the prosecutor knows or could have known of the evidence. Rather, it provides that tolling continues during the "period in which: . . . the accused person conceals evidence of the offense, and evidence . . . ." I.C. § 35-41-4-2(h)(2).

It was this Court's decision in Crider – not the statute – that added the interpretation that the Court today attributes to the statute itself. * * *

In my view, the statutory tolling period should cease at the point in time when the victim no longer reasonably fears material retaliation or other adverse consequences from a defendant‘s threats or intimidation. * * *

Finally, I emphasize that this analysis applies only to Sloan‘s conviction for child molest-ing as a Class C felony. His other conviction and forty-year sentence for child molesting as a Class A felony remains intact as that charge is not subject to any statute of limitation.

Posted by Marcia Oddi on Wednesday, June 01, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Complete list of filing fees and costs

The St. Joseph Probate Court has posted online the complete, current, 7-page list of filing fees/costs collected by the clerks in all the counties, arranged by case type. Access it here.

Re the yellow-highlighted items stating "if salary increase approved for judges," recall this May 8, 2011 ILB entry, headed "New budget bill puts judges' and prosecutors' pay raises in Chief Justice's court."

Posted by Marcia Oddi on Wednesday, June 01, 2011
Posted to Indiana Courts

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

Recall this ILB entry from last week, I had hoped to give the Indiana position, and thanks to an email from a knowledgeable reader, can now do just that:

Marcia - With regard to the posting of the Kentucky paternity decision and Indiana law, see the case of K.S. v. R.S., 669 N.E.2d 399 (Ind. 1996), 1996 Ind. LEXIS 87.

In that case "K.S. (mother), the mother of three children, has been married to her husband since 1979. Mother bore all three children during the course of her marriage to husband. The youngest child, D.S., who was born on October 22, 1992, is the subject of this action. While married to husband, mother and her neighbor engaged in a sexual relationship. Neighbor claims that sometime during his sexual relationship with mother, D.S. was conceived, and that neighbor is therefore D.S.'s biological father. Approximately one and one half years after D.S.'s birth, neighbor filed a petition to establish paternity in the Morgan Circuit Court. D.S. was neither named as a party nor otherwise represented by counsel or a guardian ad litem. Neighbor also filed with the trial court an agreed entry, which stated that neighbor was the biological father of D.S. The agreed entry provided for joint custody of D.S., with equal time with D.S. on an alternating seven day period. The agreed entry also provided that as long as there was this joint custody arrangement, no support would be paid from one party to another. Mother and neighbor signed the agreed entry and the trial court thereafter approved it."

In allowing the neighbor (I would refer to the neighbor as the interloper) to have his day in court, the Indiana Supreme Court held that "Therefore, we vacate the Court of Appeals's opinion and hold that "under Ind.Code § 31-6-6.1-2 [now IC 31-14-4-1], a cause of action exists when a third party attempts to establish paternity of a child born into a marriage which remains intact.."

That decision is specifically based on the provisions of the Indiana statutes involved. Kentucky's statutes may be written differently that Indiana's statutes.

Posted by Marcia Oddi on Wednesday, June 01, 2011
Posted to Courts in general | Ind. Sup.Ct. Decisions | Indiana Courts

Law - "Illinois has issued its first civil union license, launching a historic day for same-sex couples across the state."

That is a quote from today's story by Rex Huppke in the Chicago Tribune. The story concludes:

Illinois is now the sixth state that allows civil unions or their equivalent, and two other states — Hawaii and Delaware — have passed civil union laws that have not yet been enacted.

Advocates of gay and lesbian rights say the civil union law is a historic moment worthy of celebration, but they stress that it in no way marks the end of their work. The next step would be to follow either a judicial or legislative path toward the legalization of same-sex marriage.

ILB: Unclear about what "have passed civil union laws that have not yet been enacted" means. It may mean "have not yet taken effect," as this May 12th story from USA Today on Delaware reports:
WILMINGTON, Del. — With the Rainbow Chorale of Delaware providing the grace notes and fluted glasses of champagne on hand for a long-awaited party, Gov. Jack Markell signed Delaware's civil unions bill into law before a jammed and cheering crowd.

Effective Jan. 1
, the law will provide legal protections and benefits for same-sex couples who solemnize their relationships. With the signing, Delaware becomes the eighth state to grant comprehensive same-sex relationship rights — either through same-sex marriage laws, civil unions or domestic partnerships. The law does not change federal law, which restricts marriage benefits to opposite-sex couples.

Posted by Marcia Oddi on Wednesday, June 01, 2011
Posted to General Law Related

Ind. Decisions - COA summaries from yesterday have been corrected

The Barocas opinion (tongue-flicking case), which the ILB originally had mistakenly listed as a NFP, has been added to the top of the FP opinions, and summarized -- here is the corrected version.

Posted by Marcia Oddi on Wednesday, June 01, 2011
Posted to Ind. App.Ct. Decisions