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Saturday, July 30, 2011

Courts - More on: Ruling now issued in "Cancer Patients Challenge the Patenting of a Gene"

Updating this brief ILB entry from Friday, here is a longer report from today's NYTimes, by Andrew Pollack. Here is the 105-page ruling, with three separate opinions.

Posted by Marcia Oddi on Saturday, July 30, 2011
Posted to Courts in general

Friday, July 29, 2011

Courts - "All too often courts permit parties to file entire briefs under seal when there is only a kernel of confidential information."

That is a quote from this article -- "Not So Confidential: A Call for Restraint in Sealing Court Records" by Bernard Chao of the blog, Paterntly-O. (Thanks to How Appealing for the link.) The concern is federal district courts. Choa writes:

Because of the problems I encountered in researching the Qualcomm v. Broadcomm case and others like it, I decided to conduct a small unscientific survey to determine if there was a systemic problem of filing too much material under seal. With the help of a research assistant, I identified cases where a party sought to file sensitive material under seal. I only searched for cases in districts with heavy patent loads. 25 The districts were the Central District of California, the Northern District of California, the Eastern District of Texas, the District of Delaware, the District of New Jersey, the Southern District of New York and the Northern District of Illinois. I identified three cases in each district where parties sought to file material under seal. I then simply looked at what material was filed under seal and searched for a public version of the same document.

The results were not good for those who care about open access to court records. When there was confidential material to be filed under seal in the Central District of California2, the Northern District of California, the Eastern District of Texas, the District of Delaware and the District of New Jersey, the entire brief was filed under seal and there was no public version. In other words, in five of the busiest patent courts in the country, when confidential material was filed under seal, other material that had no claim of confidentiality was also made unavailable. There were more heartening results from the Southern District of New York and the Northern District of Illinois. In these two courts, parties that sought to file confidential material under seal also filed a public version of the same material. Thus, the public had access to the basic legal arguments being advanced.

Indiana federal courts were not included in the review ...

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

Courts - Ruling now issued in "Cancer Patients Challenge the Patenting of a Gene"

Updating this long list of ILB entries, the WSJ Law Blog has now posted "Appellate Court Says Breast-Cancer Genes Can Be Patented."

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

Ind. Law - "2011 Indiana Environmental Statutes" available next week

The 2011 edition of the Indiana Environmental Statutes, sponsored by the Environmental Law Section of the ISBA, is on its way to the printer and you will be able to order volumes online early next week.

This marks the 20th year since I began editing these books. This year there are a lot of changes; the 2011 General Assembly passed a number of bills affecting the state's environmental laws.

Watch for announcements next week.

Posted by Marcia Oddi on Friday, July 29, 2011
Posted to Environment | Indiana Law

Law - "A Law Dean Resigns, And Spills The Beans On How His University Has Been Taking Advantage of Law Students"

The school is University of Baltimore Law School. Here is the story from Above the Law, by Elie Mystal.

[More] The WSJ Law Blog has added an entry, including an interview.

Posted by Marcia Oddi on Friday, July 29, 2011
Posted to General Law Related

Ind. Gov't. - "Duke ignored water issue at Indiana plant, consultant says"

Big story today from Chris O'Malley of the IBJ that begins:

Regulatory filings alleging Duke Energy Corp. grossly mismanaged construction of its Edwardsport plant contend the utility ignored warnings for seven months over potential problems with federal regulators if it disposed of plant water deep underground.

Missteps in how to dispose of "grey water” produced in the coal-gasification process have been cited by consumer groups as among major reasons for $1 billion in cost overruns at the plant. Nearing completion, the facility is now estimated to cost more than $2.8 billion.

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

Law - "Some Real Numbers for How Much Should A Solo Lawyer Charge"

Take a look at this helpful entry from Carolyn Elefan at MyShingle.com. And don't miss the comments.

Posted by Marcia Oddi on Friday, July 29, 2011
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 8 today (and 17 NFP)

For publication opinions today (8):

In Derric Price v. Lake County Board of Elections and Registration, a 6-page opinion with a pro se appellant, Judge Vaidik writes:

Lake County Board of Elections and Registration ruled that Derric Price was ineligible to appear on the 2011 primary election ballot as a Democratic candidate for mayor of the City of Gary, Indiana, because he did not meet the one-year residency requirement. Price then filed a complaint in the trial court, and the court affirmed the Election Board. Price, pro se, now appeals. Finding evidence to support the Election Board's decision that Price was not a resident of Gary for one year before the November 2011 general election, we affirm. * * *

A trial court may examine an election board's decision to determine if it was incorrect as a matter of law. Clay v. Marrero, 774 N.E.2d 520, 521 (Ind. Ct. App. 2002). However, it may neither conduct a trial de novo nor substitute its decision for that of the board. Unless the decision is illegal, the decision must be upheld. On appeal, we are restricted by the same considerations. In essence, an abuse of discretion standard applies.[3]
___________
[3] We note that the Indiana Administrative Orders and Procedures Act (AOPA) does not apply to county election boards. See Ind. Code § 4-21.5-1-3 (“'Agency' means any officer, board, commission, department division, bureau, or committee of state government that is responsible for any stage of a proceeding under this article.” (emphasis added)); Clay, 774 N.E.2d at 521 n.3. Accordingly, we use the standard of review for decisions of other county boards, such as zoning boards. Clay, 774 N.E.2d at 521 n.3.

U.S. Bank National Association v. Ethyl R. Seeley, et al. - "Appellant-Plaintiff U.S. Bank National Association appeals from the trial court’s entry of summary judgment in favor of Appellees-Defendants Clarence and Pamela Davidson in its suit to foreclose on certain real property owned by them. We affirm."

From David L. Stalker v. Mary C. Pierce , a 24-page opinion by Judge Riley:

Appellant-Protected Person/Cross-Appellee, David L. Stalker (Stalker), appeals the trial court’s approval of Appellee-Former Guardian/Cross-Appellant’s, Mary C. Pierce (Pierce), final accounting and the trial court’s denial of Stalker’s request for money damages. We reverse and remand for further proceedings.

Stalker presents two issues on appeal, which we restate as follows:
(1) Whether Pierce breached her fiduciary duty as Stalker’s guardian; and
(2) Whether Pierce violated Stalker’s due process rights when she failed to notify Stalker of her unilateral decision to demolish his home and personal belongings.

On Cross-Appeal, Pierce presents one issue, which we restate as the following: Whether the law of the case doctrine bars Stalker’s instant claim.

In Paternity of W.C.; P.S. v. W.C., a 13-page opinion, Judge Vaidik writes:
P.S. (“Mother”) appeals the trial court's order suspending her parenting time and any other contact with her minor child. Because W.C. (“Father”) failed to present evidence justifying suspension of Mother's parenting time, we conclude that the trial court abused its discretion. We therefore reverse and remand. * * *

This case throws into sharp relief the challenge of protecting a child's emotional development and physical health and well-being while also recognizing a parent's “precious privilege” of exercising parenting time with that child. We do not minimize the behavioral issues W.C. has exhibited following Mother's parenting time. However, Father simply did not present evidence justifying termination of what little parenting time Mother had left.

We therefore reverse the trial court's modification order. Reinstatement of Mother's parenting time necessarily requires the trial court to vacate the ten-year protective order. Further, although the termination of Mother's parenting time is not supported by the evidence, the record would support an order for the parenting time to be supervised by a third party and for Mother to attend parenting classes, therapy, or counseling. In these ways, Mother would be able to receive guidance in how to appropriately deal with W.C.'s special needs. On remand, we encourage the trial court to consider such orders.

Don Harley v. State of Indiana - finds ineffective assistance of counsel, reversed and remanded for new trial

Kenneth Kelly v. State of Indiana - "Kenneth Kelly, pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. Kelly raises four issues, one of which we find dispositive and restate as whether the trial court erred in summarily denying Kelly‟s petition. We reverse and remand."

In A.T. v. State of Indiana , a 12-page opinion, Judge Vaidik writes:

A.T. was adjudicated a juvenile delinquent for committing an act that would be felony murder if committed by an adult, and the juvenile court ordered wardship of him to the Indiana Department of Correction pursuant to both indeterminate and determinate sentences. A.T. now appeals his determinate sentence, which requires him to remain in the care and custody of the DOC until his eighteenth birthday, arguing that the juvenile court failed to make a determination required by statute. We conclude that notwithstanding language in the determinate sentence statute, Indiana Code section 31-37-19-9, such a determination is not required. We also conclude that the juvenile court did not abuse its discretion in sentencing him to a determinate sentence. We therefore affirm the juvenile court.
William T. Springer v. State of Indiana - "Under the circumstances, we conclude that Springer demonstrated at least a reasonable probability that the hypothetical reasonable defendant would have elected to go to trial if properly advised. * * * For the foregoing reasons, we reverse the post-conviction court’s denial of Springer’s petition for post-conviction relief."

NFP civil opinions today (8):

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

Term. of Parent-Child Rel. of H.W. & S.W.; A.W. v. IDCS (NFP)

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

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

Rachel Mosco v. Ind. Family and Social Services (NFP)

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

David Brown v. Brandi Brown (NFP)

Boyer Corp. Excavating v. Sheila Forbes (NFP)

NFP criminal opinions today (9):

Kristina L. Phillips v. State of Indiana (NFP)

Richard Spradlin v. State of Indiana (NFP)

Oswaldo Quizaman v. State of Indiana (NFP)

Earnest Jackson v. State of Indiana (NFP)

Billy Lee McKeehan v. State of Indiana (NFP)

Stephen J. Taylor v. State of Indiana (NFP)

Matthew D. Rozinski v. State of Indiana (NFP)

Richard Sullivan v. State of Indiana (NFP)

Jesse J. Harris, Jr. v. State of Indiana (NFP)

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

Courts - 7th Circuit issues opinion about toilet paper, with link to youtube [Updated]

In Georgia-Pacific v. Kimberly-Clerk, a 17-page, July 28th, 2011, ruling in a case out of Illinois, Judge Evans' opinion begins:

Toilet paper. This case is about toilet paper. Are there many other things most people use every day but think very little about? We doubt it. But then again, only a select few of us work in the rarefied air inhabited by top-rate intellectual property lawyers who specialize in presenting and defending claims of unfair competition and trademark infringement under the Lanham Act, 15 U.S.C. §§ 1051 et seq. And the lawyers on both sides of this dispute are truly firstrate. Together they cite some 119 cases and 20 federal statutes (albeit with a little overlap) in their initial briefs. We are told that during the “expedited” discovery period leading up to the district court decision we are called upon to review, some 675,000 pages of documents were produced and more than a dozen witnesses were deposed. That’s quite a record considering, again, that this case is about toilet paper.

We’ll start by introducing the combatants. In the far corner, from an old cotton-producing state (Dixie: “I wish I was in the land of cotton, old times there are not forgotten.”) and headquartered in the area (Atlanta) where Scarlett O’Hara roamed Tara in Margaret Mitchell’s epic Gone With the Wind, we have the Georgia-Pacific Company. Important to this case, and more than a bit ironic, is that the name of Georgia-Pacific’s flagship toilet paper is Quilted Northern. In the near corner, headquartered in the north, in Neenah, Wisconsin (just minutes away from Green Bay), and a long way from the land of cotton, we have the Kimberly-Clark Corporation. Ironically, its signature toilet paper brand is called Cottonelle.

The claim in this case is that a few of Kimberly-Clark’s brands of toilet paper are infringing on Georgia-Pacific’s trademark design. But again, this case is about toilet paper, and who really pays attention to the design on a roll of toilet paper? The parties, however, are quick to inform us that in a $4 billion dollar industry, designs are very important. Market share and significant profits are at stake. So with that, we forge on.

Georgia-Pacific has been selling toilet paper since 1902. In the early 1990s, it rebranded its toilet paper as Quilted Northern, emphasizing a new diamond-shaped embossed design on the tissue, which gives it the appearance of a quilt. This design—recognizable for the commercials with cartoon quilters[1]—is referred to as the “Quilted Diamond Design.” * * *

_____________________
[1] A video of a 2003 Quilted Northern advertisement featuring the quilters is available at: http://www.youtube.com/watch?v= ttoiVqy8C3c&feature=related (last visited June 21, 2011).

[Updated at 9:29 AM] Christopher G. Wren, Wisconsin Assistant Attorney General, calls this a "Charmin" opinion and tells the ILB that "Judge Evans is a favorite around here." More:
The opinion cites a youtube video (footnote 1). A quick search of all federal and State cases on Westlaw turned up only 36 cases (not counting this one) citing to specific videos (search term: www.youtube.com/watch), with 28 of the citations occurring in federal-court opinions, including one in the Supreme Court. Three opinions from the 7th Circuit contained citations to specific videos - in a per curiam order by a panel that included Judge Evans (who wrote today's opinion, too), and in two opinions written by Judge Evans. To those of us who practice in the 7th Circuit, this pattern comes as no surprise.

The per curiam order itself might interest anyone looking for an example of judicial unhappiness with a lawyer's advocacy: Thorogood v. Sears, Roebuck & Co., 627 F.3d 289 (7th Cir. 2010).

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

Courts - "Justices Kagan and Sotomayor to Stay in the Cert Pool"

From The National Law Journal:

The Supreme Court's newest justices, Elena Kagan and Sonia Sotomayor, say they have decided to remain in the so-called "cert pool," leaving Justice Samuel Alito Jr. as the only justice whose law clerks screen incoming cases for just one member of the Court.

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

Thursday, July 28, 2011

Ind. Gov't. - "Marijuana law changes could be boon for Indiana"

Dan Carden reports on today's legislative hearing on changing the state's marijuana laws. Some quotes from the NWI Times story:

INDIANAPOLIS | Reducing or eliminating penalties for minor marijuana possession and legalizing industrial hemp production could add more than $250 million a year to Indiana's bottom line.

According to economic impact estimates presented Thursday to a legislative committee studying the state's marijuana laws, decriminalization would save up to $200 million a year in reduced police, court and prison expenses, while legalizing and taxing marijuana could bring in $50 million of new sales tax revenue.

"There's a lot of money and time to be saved in our court system," said state Sen. Karen Tallian, D-Ogden Dunes.

For more than four hours, a panel of state representatives and senators listened attentively as several Hoosiers spoke emotionally of their need for marijuana as medicine -- despite its illegality -- as no other drug or treatment can relieve their chronic pain.

In addition, lawyers and academic experts testified to the selective prosecution of many marijuana possession cases in Indiana, while others spoke of the new jobs and tax revenue that would come by having farmers plant industrial hemp, a form of marijuana that can be turned into everything from clothing to diesel fuel. * * *

The laws across the country have changed dramatically over the past decade or so," Tallian said, noting changes made in 30 other states. "I think we're going to have the basis for something next year."

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

Courts - More on: 4th Circuit rules on Discipline of Student Over Internet Bullying

Updating this ILB entry from earlier today, Ben Skirvin reports/comments this afternoon for StateImpact Indiana (a collaboration of WFIU, Indiana Public Broadcasting stations and NPR):

Interestingly, as Indiana’s cyberbullying law is currently worded it is perfectly legal to set up websites that target a specific person. The statute bans people from using the internet to send an offensive or profane message to someone, but establishing a website does not necessarily involve directly communicating with the target.

This may be the result of how the legislation was written. Lawmakers essentially added internet communication to an existing bill which regulated harassment using telephones, telegrams, and CB radios. All of these means of communication require a specific sender and receiver. One person makes the call and another receives the call.

But the internet doesn’t work that way. A website is created. Then it sits there waiting to seen. If it is promoted, then it may come to the attention of the person it was intended to insult. However, it might not.

Many other state’s have laws specifically allowing schools to monitor and regulate internet communication between students in all of its forms. Whether that be via email or through the creation of a website. As it now stands, Indiana does not.

Reporter Skirvin cites IC 35-45-2-2, which reads in part:
Sec. 2. (a) A person who, with intent to harass, annoy, or alarm another person but with no intent of legitimate communication: * * *

(4) uses a computer network (as defined in IC 35-43-2-3(a)) or other form of electronic communication to:

(A) communicate with a person; or
(B) transmit an obscene message or indecent or profane words to a person;
commits harassment, a Class B misdemeanor.

Posted by Marcia Oddi on Thursday, July 28, 2011
Posted to Courts in general | Indiana Law

Ind. Courts - Appeal of Bei Bei Shuai bond denial awaiting completion of briefing

As noted in this ILB entry from June 28, 2011 (one month ago), on June 6th, the day that "Marion Superior Court Judge Sheila Carlisle ... ruled that Bei Bei Shuai will not be released on bond," a notice of appeal was filed, quickly followed by a motion to expedite appeal. On June 27th, the Court of Appeals granted the motion for expedited appeal.

The Indianapolis Star has a story this afternoon headed "Indy mom accused of eating poison appeals denied bond," that reports:

Marion Superior Court Judge Sheila Carlisle ruled earlier this year that Bei Bei Shuai should not be allowed to bond out of jail because there’s evidence to show she committed the crime.

Shuai’s attorney, Linda Pence, has appealed that decision and the Indiana Court of Appeals agreed to expedite its review of the case, Pence said in an email.

In short, nothing new here, except a reminder that Shaui remains in jail, where she has been since last December.

A review of the docket by the ILB found several amicus briefs filed or in process, including one on behalf of literally many dozens of associations and individual Ph.D's.

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

Ind. Decisions - NFP opinion today looks at Constitution's proportionality clause

The NFP opinion today by the COA in the case of Marvin L. Ervin v. State of Indiana is worth a note -- as stated in footnote 1 of today's opinion:

[1] Our Supreme Court had previously remanded this case to us, following the issuance of an unpublished opinion in 2010. See Ervin v. State, No. 49A02-1002-CR-123 (Ind. Ct. App. Sep. 28, 2010). The second remand was ordered on July 7, 2011, following the issuance of an unpublished memorandum decision on April 13, 2011.
Indeed, twice the Supreme Court granted transfer and sent the case back to the COA -- see the mention in a July 11th ILB entry. The Supreme Court's July 7, 2011 order granting transfer and remand states:
Ervin's petition accurately states that the Court of Appeals did not address an issue that he raised as issue II in his appellant's brief concerning whether "the D felony classification for theft violates the Proportionality Clause when the offense is 'one and the same' as criminal conversion, a Class A misdemeanor."
Today's 14-page NFP opinion, by a new panel headed by Judge Baker, does not change the outcome but does specifically address the issue. Some quotes:
Upon remand from our Supreme Court, we have been instructed to more fully address an issue that appellant-defendant Marvin Ervin presented in his direct appeal that involves the Proportionality Clause of the Indiana Constitution. * * *

[pp. 10-14 begins] III. Constitutionally Proportionate Penalty. In a related issue, Ervin maintains that his conviction must be set aside because the penalty for theft violates the Proportionality Clause set forth in Article I, Section 16 of the Indiana Constitution. Specifically, Ervin argues that the theft statute is unconstitutional and his conviction must be reduced to conversion because the offenses are proven by the same material elements. Therefore, Ervin asserts that the classification for theft as a class D felony violates the Proportionality Clause because that offense is “one and the same” as criminal conversion, a class A misdemeanor.

The Proportionality Clause, as set forth in Article I, Section 16, of the Indiana Constitution, requires that “[a]ll penalties shall be proportioned to the nature of the offense.”

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

Courts - 4th Circuit rules on Discipline of Student Over Internet Bullying

Mark Walsh has the story at The School Law Blog. A quote:

The decision is one of several in recent months by federal appeals courts grappling with cases involving students who create Web pages ridiculing school administrators or fellow students. One court backed administrators in a case, while another largely sided with students. [ILB - these were the 2nd and 3rd Circuits, respectively]

The 4th Circuit case involves Kara Kowalski, who was disciplined for creating a MySpace page targeting another student at Musselman High School in Berkeley County, W.Va.

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

Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Christina Smith v. Trilogy Health Services (NFP)

Metals & Additives Corp., Inc., et al. v. Dagoberto Hornedo, et al. (NFP)

Betty Nolot v. Richard A. Nolot, et al. (NFP)

NFP criminal opinions today (5):

Jason Keigley v. State of Indiana (NFP)

Michael Yates v. State of Indiana (NFP)

Kimberly A. Kelley v. State of Indiana (NFP)

Johnnie Gustafson v. State of Indiana (NFP)

Marvin Ervin v. State of Indiana (NFP)

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

Ind. Law - "Indiana panel to consider proposal to legalize marijuana" [Updated]

Updating this ILB entry from July 24th, the legislature's Criminal Law and Sentencing Policy Study Committee will meet at 1 pm today in Room 431 of the Statehouse to consider issues concerning marijuana, but the meeting will NOT be webcast, although it seems likely there will be statewide interest...

[Updated at 2:08 pm] Well, it turns out the hearing is being videocast, but who knew?

Posted by Marcia Oddi on Thursday, July 28, 2011
Posted to Indiana Law

Courts - Still more on "Pennsylvania Homeowner and Indiana Golf Course Company File Class Action Lawsuit Alleging DuPont's New Herbicide Imprelis is Causing the Death of Trees Nationwide"

"DuPont admits new herbicide has damaged spruce, pine trees," is the headline to this long story this morning from DelawareOnline.

Posted by Marcia Oddi on Thursday, July 28, 2011
Posted to Courts in general | Environment

Wednesday, July 27, 2011

Ind. Decisions - Will we be seeing Tim Durham's unredacted financial statement?

If you are following the Tim Durham case, Judge Jane Magnus-Stinsom issued an interesting, 2-page order yesterday that concludes:

For these reasons, the Court ORDERS Mr. Durham to show cause by July 29, 2011 why the Court should not unseal the redacted financial statement and supporting memorandum. [Dkts. 112; 112-1.] Should he fail to do so, the Court will unseal the documents at issue. Mr. Durham is permitted to file an amended supporting memorandum by that date should he choose to do so. If he believes any portion of the supporting memorandum should be maintained under seal, he is to file a motion requesting leave to file the affected portions under seal with supporting authority and to comply with Local Rule 5.3.

Posted by Marcia Oddi on Wednesday, July 27, 2011
Posted to Ind Fed D.Ct. Decisions

Courts - "Court says states may set stricter ballast rules" than the federal rules

A July 25th story by Dan Egan in the Milwaukee Journal-Sentinel that begins:

A push by the shipping industry to roll back state protections against contaminated ballast water discharges has been denied in federal court.

The industry opposed a decision by the U.S. Environmental Protection Agency to allow individual states to set stricter standards for their own waters than those issued by the federal government. The issue is critical to Great Lakes states, many of which - including Wisconsin - have set ballast water standards stricter than those being developed by the EPA under the Clean Water Act.

In a ruling issued Friday, the U.S. Court of Appeals for the District of Columbia ruled the EPA can allow states to set their own standards.

Conservation groups called last week's ruling a victory for a system of lakes that has been ravaged by invasive species outbreaks spawned by contaminated ballast discharges.

"The court got it right," said Thom Cmar, an attorney with Natural Resources Defense Council, which intervened in the case on behalf of the EPA. "In absence of a strong national standard, these state standards are necessary to fill the void that's been created by a failure of federal leadership on the issue."

Congress has been considering its own single, overarching ballast water standard for ship discharges for years but has yet to act.

See also this AP story from the Chesterton Tribune yesterday.

The Chesterton paper
also published the AP stories on July 22nd that Asian carp evidence had been found in Lake Calumet.

Here is a list of earlier ILB entries referencing "ballast."

Posted by Marcia Oddi on Wednesday, July 27, 2011
Posted to Courts in general | Environment

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Alan D. Wilson v. Sisters of St. Francis Health Services , a 10-page opinion, Judge Barnes writes:

St. Francis billed T.W. $26,524.27 for its medical services. T.W. had health insurance with Kaiser Permanente of Southern California, but Kaiser Permanente refused to pay for services rendered to T.W. because he did not receive the treatment in California. * * *

T.W. retained Wilson to pursue Kaiser Permanente for its failure to pay the St. Francis bill, and T.W. agreed to pay Wilson on a contingency fee basis. On T.W.’s behalf, Wilson initiated an administrative appeal with Kaiser Permanente, which was successful, and in June 2009, Kaiser Permanente paid $26,524.27 directly to St. Francis.

Wilson then sent a letter to St. Francis and asserted “an attorney’s lien for one-third (1/3) of any amount collected toward payment of the indebtedness. . . .” St. Francis refused to pay Wilson. * * *

Wilson cites no cases allowing a charging lien under circumstances like those facts here. In particular, Wilson cites no authority for the proposition that insurance payments made to a third party under the client’s health insurance policy are subject to a charging lien. * * *

We agree with St. Francis that the hospital, which is “a stranger” to the contingency fee agreement between T.W. and Wilson, “should not be forced to carry the burden of [T.W.’s] contractual obligations . . . .” There is no dispute that St. Francis provided services to T.W. and is entitled to full payment for its services.

James W. Miller v. State of Indiana - "James Miller appeals his convictions for two counts of Class A misdemeanor neglect of a vertebrate animal. We affirm."

NFP civil opinions today (3):

Rudolfo G. Rodriguez, Jr. v. Lakeview Title, LLC (NFP)

J.H. v. B.H. (NFP)

Tomika Johnson, et al. v. David Sullivan, M.D., et al.

NFP criminal opinions today (3):

Matthew William Huttle v. State of Indiana (NFP)

Christopher Brightman v. State of Indiana (NFP)

Derek A. Bishop v. State of Indiana (NFP)

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

Courts - "Why Lawyers and Judges Should Watch Executions"

New today in The Atlantic, this article by Andrew Cohen. (For background start with this ILB entry from July 24th.) The pull quote: "Prison officials and prosecutors should no longer be allowed to keep secret from the courts vital evidence in the fight over lethal injections."

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

Law - "Are Criminal Background Checks Unfairly Discriminatory?"

That is the heading of an interesting item in the WSJ Law Blog yesterday, by Nathan Koppel. The intro:

The Equal Employment Opportunity Commission is holding a hearing today on an important topic for companies: Can they consider job applicants’ criminal histories in making hiring decisions?

The hearing will examine the law governing background screening and consider the extent to which individuals with arrest and conviction records face barriers in getting hired.

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

Tuesday, July 26, 2011

Ind. Gov't. - "Drug Tests Botched By State Lab To Be Retested" [Updated]

Updating this ILB entry from July 20th, that is the headline to this story WRTV 6 is reporting this evening. Some quotes from the brief, somewhat confusing story:

INDIANAPOLIS -- As hundreds of Hoosiers wonder if they were wrongly convicted on drug charges based on faulty evidence, state officials want to retest the botched samples. * * *

Now the state's Toxicology Advisory Board wants to take the review one step further by actually retesting the bungled samples.

“The technical review has identified procedural problems from several years ago. At this juncture, the next logical step is to immediately retest the samples questioned by the technical review to determine if there are incorrect results,” Linda Chezem, the board’s chairwoman, said in a statement Tuesday.

Chezem said Gov. Mitch Daniels had notified the board that he will accept the recommendation.

[Updated on 7/27/11] Mark Alesia and Tim Evans have a story in this morning's Indianapolis Star, filed at 11:14 PM last night, headlined "Some positive samples in criminal cases to be retested." Some quotes:

A new advisory board overseeing the state Department of Toxicology announced Tuesday that some positive blood and urine samples used in criminal cases will be retested. * * *

How to proceed with the audit was among six recommendations issued by the Toxicology Advisory Board and submitted last week to Gov. Mitch Daniels, who has approved the retesting. * * *

The independent paper audit found 10 percent of positive marijuana tests and nearly one-third of positive cocaine tests from 2007 to 2009 did not meet accepted scientific standards. Auditors were in the middle of analyzing results of alcohol tests when the effort was suspended.

The advisory board's report stressed that the audit "was a 'paper' review of analysis, data, notes, etc., but did not include any retesting of samples in question."

"The board concluded that to properly and thoroughly examine the issues raised by this technical review of cases that further testing of the samples be performed by an outside, third-party laboratory," the report said.

It was not clear Tuesday how many samples would be retested -- or the criteria for how those samples would be chosen. * * *

[I]n its four-page report, the board said that while the audit showed "structural concerns" with the lab's work, "it is scientifically unclear if the result reported is incorrect."

Defense attorneys, however, have said the audit raises serious questions about whether the results should have, or would have, been admitted as evidence in court. The results were also used to convince defendants to plead guilty.

"You don't have an admissible result (in court) without the proper process," local defense attorney John Tompkins said. "Unless you do the science right, results should not get into evidence or be considered by a judge or jury."

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

Not law but fun - Watch the poultry imitation contest video

The video from the county fair in Goshen was filmed by Justin Leighty of the Elkhart Truth, and will make you smile.

Posted by Marcia Oddi on Tuesday, July 26, 2011
Posted to General News

Ind. Decisions - No Indiana decisions today from the 7th Circuit, but ...

There was a bankruptcy/trademark opinion (Western Glove Works v. XMH Corp.), a copyright opinion (Nova Design Build, I v. Himanshu Modi), and an opinion (White Pearl Inversio v. Cemusa, Inc.) that begins, and ends:

Shelters at bus stops and trash baskets on municipal streets are no longer just shelters and trash baskets. They have become “street furniture.” With the change of name comes an opportunity for advertising. Instead of paying someone to build and maintain fixtures, cities invite specialized enterprises to pay them. The vendors erect and maintain the street furniture at their own expense, financing the venture by advertising. Vendors give the cities a cut of that income. Whichever firm offers a city the most lucrative deal gets the contract—provided the city deems the bidder reputable and reliable. * * *

Cemusa agreed to pay White Pearl $240,000 for preparatory services—defined in the Letter Agreement and the Master Agreement as consulting and PR work done before New York City issued a RFP for street furniture. Cemusa kept that promise. It terminated the Master Agreement before New York issued the RFP. White Pearl, like the real estate agent fired before a house is listed for sale, is not entitled to more.

Posted by Marcia Oddi on Tuesday, July 26, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "An Example of Marion County Forfeiture Abuse"

See this just-posted item from Ogden on Politics.

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

Ind. Decisions - More on "NIPSCO, EPA settlement on pollution sent back by fed court judge"

Updating this ILB entry from May 11, 2011, Teresa Auch Schultz reports today in the Gary Post-Tribune:

A federal judge approved Friday an agreement between NIPSCO and the U.S. Environmental Agency that includes the shutdown of the energy company’s Gary plant and $13 million in investments.

U.S. District Judge Joseph Van Bokkelen granted the agreement after expressing in May concerns over it. * * *

In his order in May asking for more information, Van Bokkelen had questioned whether it was fair for so much to go to the U.S. government when the damage was in Indiana. However, the EPA answered last month that it had done most of the legal work on the case and that Indiana would benefit from the economic investment NIPSCO will make.

As to Van Bokkelen’s concerns about NIPSCO customers being the ones to pay for all the improvements, both NIPSCO and the EPA cited the Indiana Utility Regulatory Commission, which has to approve any rate increase for customers.

Posted by Marcia Oddi on Tuesday, July 26, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Late payment fee OK'd for violations"

From a brief item in the South Bend Tribune:

SOUTH BEND -- Beginning Monday, a late payment fee of $25 will be assessed on all criminal, traffic and ordinance violations that have not been paid by the time specified by the court or Traffic Violations Bureau, according to the county clerk's office.

The ability to initiate such a fee was granted by the Indiana General Assembly during the last legislative session.

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

Law - IU's Dawn Johnsen just one of many law profs "shut out of top jobs" [Updated]

"Law Professors Find a Hard Road to Federal Appointments" is the headline to a long story by Karen Sloan in the National Law Journal that begins:

With one of their own sitting in the Oval Office, it's reasonable to think that legal academics might enjoy an edge in snagging nominations for plum judicial and executive branch posts. But law professors have received a relatively chilly reception in Washington of late, at least when it comes to high-profile positions that require the blessing of the Senate.

Harvard Law School professor Elizabeth Warren was passed over to head the new Consumer Financial Protection Bureau after rubbing Republican leaders the wrong way with her blunt skepticism toward Wall Street. Instead, Obama nominated former Ohio Attorney General Richard Cordray.

University of California, Berkeley School of Law professor Goodwin Liu in May withdrew from consideration for the 9th U.S. Circuit Court of Appeals after the Senate twice failed to confirm him. Republicans objected to liberal views expressed in his academic writings as well as Liu's harsh criticism of U.S. Supreme Court Justice Samuel Alito during his own 2006 confirmation.

University of Wisconsin Law School professor Victoria Nourse's year-old nomination to the 7th Circuit has been put on hold by freshman U.S. Sen. Ron Johnson, R-Wis.

[Updated at 12:54] Just spotted this story in the LA Times, headed "Jerry Brown nominates Goodwin Liu to California Supreme Court."

Posted by Marcia Oddi on Tuesday, July 26, 2011
Posted to General Law Related

Ind. Gov't. - "Voucher students and the IHSAA"

From an editorial today in the South Bend Tribune:

The Indiana High School Athletic Association says it will follow its present rules in considering student transfer requests associated with the state's new school voucher program.

That ought to signal to the General Assembly an urgency for the House Education Committee to help the IHSAA develop new policies that are more responsive and fair to Indiana students and their families. * * *

Of 3,200 transfer applications last year, the IHSAA says it granted 97 percent of the requesting students full althletic eligibility.

Readers, however, remember years of controversy after the IHSAA in 2008 ruled against Jasmine Watson's request to play varsity basketball at Washington High School. And the IHSAA's 2009 ruling against Eric Woods' bid to play varsity football at Washington. * * *

These are difficult cases to judge. The IHSAA's ruling against Jasmine, in fact, was upheld just this year by the Indiana Supreme Court, reversing action in St. Joseph Circuit Court and the Indiana Court of Appeals.

State lawmakers passed the new voucher program to serve the best interest of students. They should now review the IHSAA's transfer and sports eligibility rules to ensure they are working as well as possible for students and their families.

Here is a lengthy list of ILB entries on the Jasmine Watson dispute. And here is an ILB entry from Oct. 23, 2009, on the Eric Woods decision.

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

Ind. Decisions - "Ind. Supreme Court to hear dispute over welfare denials"

Charles Wilson of the AP reports today on the Supreme Court's decision to grant transfer in the case of Sheila Perdue, et al. v. Anne W. Murphy, et al. (see ILB entry from yesterday here). Sme quotes from the story:

The 2008 lawsuit argued that the FSSA sent notices denying or cutting off Medicaid, welfare or food stamps because of missing documents in clients' applications, but never told clients which documents were missing.

In one case, the agency cut off Medicaid to a woman with hearing problems and other disabilities after a telephone interview that she had trouble understanding and refused to meet with her in person. A Marion County judge found the agency's treatment of the woman violated federal law including the Americans with Disabilities Act, and the appeals court agreed.

The lawsuit stems largely from an error-plagued effort to privatize and automate much of the FSSA's day-to-day functions. Gov. Mitch Daniels canceled that contract with IBM in October 2009, and the state replaced that system with a "hybrid" system including both automation and face-to-face contact.

Posted by Marcia Oddi on Tuesday, July 26, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Lake County elections board attorney suspended

Susan Brown reports in the NWI Times:

CROWN POINT | Attorney Bruce Lambka, who serves as the GOP legal representative on the Lake County Elections Board, is prohibited from practicing law for 18 months, beginning Sept. 2.

An order issued by the Indiana Supreme Court indicates Lambka was found guilty of professional misconduct for failing to act diligently and promptly and engaging in conduct prejudicial to the administration of justice. * * *

He also was cited for having a lengthy history of suspensions from practice. The order shows a dozen incidents of noncompliance beginning in May 1998, primarily for failing to complete continuing education requirements or pay required dues.

Lambka may petition for reinstatement at the conclusion of the 18-month suspension, the order states.

Here is the 2-page, July 21, 2011 Supreme Court order, which includes the following:
The Commission filed its "Verified Complaint for Disciplinary Action" on August 2, 2010. Respondent filed an answer, and the hearing officer held an evidentiary hearing, at which Respondent appeared pro se. Neither party filed a petition for review of the hearing officer's report or brief on sanctions pursuant to Admission and Discipline Rule 23(15)(a). * * *

Facts in aggravation are: (1) Respondent's failure to appear at the trial was deliberate rather than inadvertent; and (2) Respondent did not cooperate with the Lake County Bar Association or with the Commission in their investigations of this matter. In addition, Respondent has a lengthy history of suspensions from practice:
Continuing Legal Education ("CLE") noncompliance suspension, 5/20/98; reinstated 6/4/98.
CLE noncompliance suspension, 5/11/99; reinstated 7/1/99.
CLE noncompliance suspension, 4/17/01; reinstated 5/17/01.
CLE noncompliance suspension, 5/3/05; reinstated 8/22/05.
45S00-0601-DI-9: Show cause petition filed 1/19/06. Dismissed with costs 3/10/06.
45S00-0605-DI-180: Show cause petition filed 5/17/06. Dismissed with costs 6/30/06.
CLE noncompliance suspension, 5/22/07; reinstated 6/4/07.
CLE noncompliance suspension, 5/21/08; reinstated 7/17/08.
Dues nonpayment suspension, 5/21/08; reinstated 7/26/08.
45S00-1002-DI-111: Show cause petition filed 2/21/10. Suspended for noncooperation 5/28/10. Reinstated on certificate of compliance 6/14/10.
CLE noncompliance suspension, 6/8/10; reinstated 7/21/10.
Dues nonpayment suspension, 6/8/10; reinstated 7/26/10. * * *

Discipline: For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than one year and six months, without automatic reinstatement, beginning September 2, 2011.

Posted by Marcia Oddi on Tuesday, July 26, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 9 today (and 17 NFP)

For publication opinions today (9):

In Mary McCraney v. Steven Gibson, et al., a 10-page opinion, Judge Riley concludes:

McCraney urges us not to apply the two-prong test or follow the reasoning in Morehead, as she describes Morehead and cases that apply the two-prong test as being factually different from the present case. Specifically, she maintains that in Morehead, there was no “actual property defect” and that “the landowner was not given notice of a defect, nor did he give the tenants the impression he would be repairing a known defect.”

We disagree and choose to apply the two-prong test, which finds that the duty of reasonable care imposed upon a landowner is measured by the landowner's control or possession of the property and the landowner's knowledge of the dangerous propensities of the dog. Here, there is no evidence in the record that the Calows knew about Ceasar's violent propensity. In fact, during the summary judgment hearing, McCraney conceded that there was no evidence of such knowledge: “If you're going to analyze this case in terms of dangerous propensities, we're not going to win the case because I'm willing to stipulate on the record that, that we have not been able to establish that even the owner of the dog had any opinion about dangerous propensities.” Because the Calows need only prove one prong of the test, we find that they were entitled to summary judgment as a matter of law.

Jo. W. v. Je. W. - "On October 6, 2010, Husband filed a 'Verified Motion to Establish Paternity Using the Human Deoxyrbonucleic (sic) Acid Test,' (App. at 12-14), in which he contended he should not be responsible for B.W.’s child support because he was incarcerated at the time of B.W.’s conception and birth."

Marc Randolph v. Edwin Buss, et al. - Construes amended educational credit time statute.

In Michael J. Lock v. State of Indiana, a 9-page, 2-1 opinion, Judge May writes:

Michael Lock appeals his conviction of Class D felony operating a motor vehicle while privileges are suspended. He contends the State failed to prove his 2009 Yamaha Zuma was a motor vehicle. We agree, and reverse his conviction.

On June 27, 2009, Lock was riding a Zuma at forty-three miles per hour. Trooper Pornteb Nathalang noticed the Zuma did not have a license plate and pulled Lock over. Trooper Nathalang discovered Lock's driving privileges were suspended and arrested him.

The State charged Lock with Class D felony operating a vehicle while suspended and cited him for two infractions: No Registration Plate on Motorcycle and No Motorcycle Endorsement. * * *

To prove Class D felony operating a vehicle while suspended, the State must prove Lock operated a motor vehicle while his driving privileges were suspended and while he had notice of the suspension. Ind. Code § 9-30-10-16. Lock argues the State did not prove he operated a motor vehicle, because his Zuma is a motorized bicycle, which, pursuant to Ind. Code § 9-13-2-105(d), is exempt from the provisions of the statutes regarding operation of a motor vehicle while privileges are suspended. We agree the State did not prove the Zuma was a motor vehicle; however, neither does the record before us permit us to hold the Zuma is a motorized bicycle. * * *

We decline the State's invitation to relieve it of its burden to prove every element of a crime it prosecutes. * * *

[W]e decline the State's invitation to speculate that a vehicle capable of travelling 43 miles per hour necessarily must have a “maximum design speed” over 25 miles per hour. We may not affirm a conviction based on mere speculation. * * * Therefore, we reverse Lock's conviction of Class D felony operating a motor vehicle while privileges are suspended.

BRADFORD, J., concurs.
BAKER, J., dissenting with separate opinion. [that begins, at p. 7 of 9] I respectfully dissent and part ways with the majority's conclusion that the evidence was insufficient to support Lock's conviction for operating a motor vehicle while privileges are suspended. I cannot agree that the State is inviting us to merely “speculate” that the Zuma, which was capable of traveling at a speed of at least forty-three miles per hour, is a motor vehicle within the meaning of the statute.

Robert Fuentes v. State of Indiana

Jamall Borum v. State of Indiana

In Jay C. Gagne v. State of Indiana, a 5-page opinion, Judge Baker writes:

Appellant-defendant Jay C. Gagne appeals the jury’s determination that he made an illegal U-turn1 on Interstate 65. Specifically, Gagne argues that there is insufficient evidence to support the jury’s verdict that he committed the offense. Thus, Gagne contends that the trial court’s order directing him to pay a fine in the amount of $118.50 must be set aside. Finding the evidence sufficient, we affirm. * * *

We cannot agree with Gagne’s claim that the statute requires the posting of “no U-turn” signs in all circumstances.

In Mat Warren, Betty Jo Ball, et al. v. E. Lee Warren, Lilly Frayer, et al., an 11-page opinion, Judge Riley writes:
Appellants present two issues on appeal, which we consolidate and restate as the following single issue: Whether the issue of the disinterment and re-interment of Sherman and Isabella’s remains pursuant to I.C. § 23-14-57-5 is res judicata. * * *

Based on this side-by-side comparison between Warren I and the trial court’s judgment in the instant case, it is clear that the same issue was decided by both courts, i.e., the disinterment in Indiana of Sherman and Isabella and the re-interment of both individuals’ remains in Kentucky. Therefore, we find the issue to be res judicata and no longer available for our review. At the same time, we want to request the Warren family to cease this continuous litigation. Not only is it ripping the family apart, it drains financial resources which might be better spent elsewhere. We empathize with both sides of the Warren family whose sole intention is to fulfill the final wish of their deceased parents; however, the reality is that Sherman and Isabelle are buried beside each other in a public cemetery and are together with their deceased daughter. Let them rest in peace.

Robin (Wren) Lechien v. Michael W. Wren - "For the foregoing reasons, we affirm the trial court’s determination that Nathan repudiated his relationship with Father, reverse the court’s modification of Father’s child support obligation from $177.00 to $69.00, and remand with instructions to enter a child support order consistent with this opinion."

NFP civil opinions today (5):

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

Robert Pope, et al. v. Patrick Smith (NFP)

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

Herbert Buck v. Sonia Buck (NFP)

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

NFP criminal opinions today (12):

Matthu R. Sanders v. State of Indiana (NFP)

Michael Hickingbottom v. State of Indiana (NFP)

William J. Pearson v. State of Indiana (NFP)

Teresa A. Mills v. State of Indiana (NFP)

Richard D. Gasper v. State of Indiana (NFP)

Melissa Kay Sneed v. State of Indiana (NFP)

Herschel S. Crain, Jr. v. State of Indiana (NFP)

James Goins v. State of Indiana (NFP)

Shawn Michael Davis v. State of Indiana (NFP)

Christian Behling v. State of Indiana (NFP)

DeQuan D. Branch v. State of Indiana (NFP)

Karl L. Brunk v. State of Indiana (NFP)

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

Courts - “You can’t do by signing statement what you can’t do by veto"

That is one of the issues in a case that will be before the SCOTUS this fall, a case which, according to this quote from an Adam Liptak column today in the NY Times:

... weaves together generations of conflict in the Middle East, the dueling roles of Congress and the president in the conduct of foreign affairs and the combustible topic of presidential signing statements.

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

Monday, July 25, 2011

Courts - Is the collection of DNA samples from people arrested -- but not yet convicted of crimes -- constitutional? [Updated]

How Appealing has just posted a link to this story by Rich Lord of the Pittsburgh Post-Gazette, headed "U.S. Appeals Court: OK to check DNA of those arrested," that begins:

A closely divided 3rd U.S. Circuit Court of Appeals has found that the collection of DNA samples from people arrested -- but not yet convicted -- of crimes is constitutional, in an opinion released today.
The ILB took at quick look at today's opinion in US v. Mitchell for 7th Circuit references, and found this on pp. 32-33 of the 99-page opinion:
Prior to Congress‘s 2005 and 2006 expansions of the DNA Act, every circuit court to have considered the constitutionality of a DNA indexing statute upheld the statute under the Fourth Amendment. Nevertheless, the circuits have divided regarding the correct method of Fourth Amendment analysis. We and the majority of circuits—the First, Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, and District of Columbia—have endorsed a totality of the circumstances approach.[15]
_________________
[15] Only the Second and Seventh Circuits have consistently held otherwise, employing the special needs exception in every case concerning the constitutionality of a DNA indexing statute. See Amerson, 483 F.3d at 78; Hook, 471 F.3d at 773; Green v. Berge, 354 F.3d 675, 677–78 (7th Cir. 2004). The Tenth Circuit has noted that its ―own precedents are divided, but it applied the totality of the circumstances test in its most recent case. Banks, 490 F.3d at 1183–84.
[Updated 7/26/11] Shannon P. Duffy of The Legal Intelligencer has a story today on yesterday's 3rd Circuit en banc decision, that begins:
Finding that DNA profiling samples are "fingerprints for the 21st century," a sharply divided federal appeals court has ruled that the government has the right to routinely collect DNA samples from anyone who is arrested for inclusion in a national database.

"DNA profiling is simply a more precise method of ascertaining identity and is thus akin to fingerprinting, which has long been accepted as part of routine booking procedures," U.S. Circuit Judge Julio M. Fuentes wrote in United States v. Mitchell .

On an 8-6 vote, the 3rd U.S. Circuit Court of Appeals en banc rejected a challenge to the constitutionality of the DNA Act of 2005 and reversed a lower court's decision that struck down the law.

"Because DNA profiles developed pursuant to the DNA Act function as 'genetic fingerprints' used only for identification purposes, arrestees and pretrial detainees have reduced privacy interests in the information derived from a DNA sample," Fuentes wrote for the majority.

The six dissenters, led by U.S. Circuit Judge Marjorie O. Rendell, complained that "collecting and analyzing DNA is much more intrusive than either fingerprinting or photographing."

Rendell said she believes the privacy rights of arrestees "are not so weak as to permit the government to intrude into their bodies and extract the highly sensitive information coded in their genes."

Posted by Marcia Oddi on Monday, July 25, 2011
Posted to Courts in general

Ind. Gov't. - So who are your current legislators?

Updating earlier ILB entries on the new legislative districts (see most recent ILB entry here), this story, posted at ValpoLife.com, caught my eye:

So who are your current legislators? The Indiana House and Congress are following the standard model. For example, even if your home has been drawn into a new legislative district your current representation in the Indiana House and Congress would remain the same prior to the redistricting until after the 2012 Election when you have had a chance to vote on your new representative.

The Indiana Senate is different. Here, your state senator might change based on the new Indiana Senate district map with the decision to go ahead and implement those changes prior to the next election. The reason for this is because only half of the Indiana Senate is elected at any given election. The Senate believes that enacting those changes now will avoid confusion later.

Got it? If not, use the new Indiana Senate district map and compare it to the list of Indiana senators here to see who’s representing you.

ILB: So what about the statutes -- is this written somewhere? The law establishing the current Senate districts, adopted in 2001, is found at IC 2-1-11, and is still in effect and remains so until Nov. 6, 2012 (election day), when it is repealed by HEA 1601 (PL 214-2011).

The new law establishing the new Senate district boundaries is codified at IC 2-1-13. It went into effect July 1, 2011. Confusing? Not insofar as the 25 seats up for election in 2012 are concerned.

But what about the other 25, not up for election until 2014?

As for the 25 "holdover" Senators, elected in 2010 and not up for reelection until 2014, new language (IC 2-1-9-9) added this year provides (emphasis added by ILB):

Sec. 9. (a) Indiana is divided into fifty (50) senate districts as described in IC 2-1-13. From each of these districts there shall be elected one (1) senator of the senate of the Indiana general assembly.

(b) Each senator elected in the general election in 2010 for a full four (4) year term shall continue to hold office until the term for which the senator was elected has expired by limitation, and the senator shall represent the district established under IC 2-1-13 in which the senator's legal residence is located.

As added by P.L.212-2001, SEC.1. Amended by P.L.37-2002, SEC.2; P.L.214-2011, SEC.7.

That last clause, " in which the senator's legal residence is located," may pose a problem in some cases. Of course, it is still hard to easily see where exactly the lines are and what addresses they include.

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

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

Lauren Pease v. Edward Pease (NFP)

NFP criminal opinions today (0):

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

Courts - "Iowa Considers Secrecy Proposal for Lawyer Misconduct"

Really?

Nathan Koppel has this story on the WSJ Law Blog.

Posted by Marcia Oddi on Monday, July 25, 2011
Posted to Courts in general

Ind. Decisions - Transfer list for week ending July 22, 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 July 22, 2011. It is two pages (and 30 cases) long.

Five petitions to transfer were granted:

__________

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

Posted by Marcia Oddi on Monday, July 25, 2011
Posted to Indiana Transfer Lists

Ind. Gov't. - Two Sunday stories on Indiana welfare system

Eric Bradner had two "where are we now" stories in the Sunday Evansville Courier & Press:

This story, "Ind. FSSA welfare 'hybrid' poised to expand," that begins:

A year and a half ago, Indiana's human services agency decided to scrap some parts of its "modernization" effort and replace it with a new way of handling welfare benefits.

The Family and Social Services Administration piloted its "hybrid" system — one that combined the technological advances of the botched effort and the in-person touch that existed before 2008 — in 10 Southwestern Indiana counties.

Eighteen months later, the state is expanding that hybrid way of determining whether Hoosiers qualify for welfare and delivering those benefits to 72 of Indiana's 92 counties.

A look at data on error rates, timeliness, case backlogs and more show that across the board, the hybrid system is outperforming its two predecessors — the paper-based system in place before 2008, and the computerized one in place after that.

"Road to functioning welfare system wasn't smooth," is a commentary that begins:

By the numbers, Indiana's welfare delivery system seems to be working much better now under the state's new "hybrid" system than it was during the two-year-long modernization debacle. But the road to a functioning system wasn't a smooth one. It involved a great deal of pain for Hoosiers who struggled to make the phone-and-computer system work for them, and it triggered dueling lawsuits between the state and its primary contractor that are still not resolved.

In order to sell the argument that the Daniels administration has made – that an overhaul of Indiana's welfare delivery system was necessary – the foundation has to be the case that the old system was broken.

And concludes:
Whether it's actually working – accomplishing both the goal Daniels set forth of better performance with fewer inconsistencies, while providing the human touch that services for the needy require, remains to be seen.

The state is about to roll out the hybrid system in Lake County, the state's second-most populated. Down the road, it will move to Marion County, with the state's highest population. Then, we'll know better the strengths and weaknesses of the hybrid system.

But for now, the numbers show the Daniels administration's second try is much better than its first.

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

Law - "How Fast Is Fast Enough to Tell Customers About Data Breaches?"

From Corporate Counsel, a story today by Sue Reisinger that begins:

In financial data breaches, timing is almost everything. On June 13 a federal court held Comerica Bank liable for data breach losses even though it notified the customer and stopped all account activity within six hours. Two days later Citigroup Inc. was explaining why it took nearly a month to start notifying 360,000 customers of a breach. While Comerica didn't act fast enough for the court, experts say Citi's delay may have been justified.

Confusing? Such disparities can baffle not only companies and consumers, but also lawmakers trying to create a uniform standard for handling breaches.

See also this July 8, 2011 story in Infoweek about an Indiana data breach (first reported at the end of this Nov. 1, 2010 ILB entry), headed "WellPoint Fined $100,000 For Data Breach: Insurer admits being late to notify Indiana officials that records of 32,000 applicants were vulnerable for months." How many months? From the story:
According to the settlement, WellPoint admitted that personal information of some applicants for insurance coverage in Indiana--including Social Security numbers, health records, and financial information--was accessible online between Oct. 23, 2009, and March 8, 2010, and that the company failed to contact the AG's office at the time it notified affected members of the breach. A 2009 Indiana law requires companies to notify the state of certain data breaches. * * *

Zoeller sued WellPoint last October, seeking $300,000 in civil fines. The AG contended that WellPoint was told of the breach on Feb. 22 and March 8 of last year, but did not start notifying affected individuals until June 18, 2010, and waited until July 30 to respond to an inquiry from Zoeller--after word got out via news media.

WellPoint eventually notified 645,000 consumers nationwide, according to Zoeller's office.

Posted by Marcia Oddi on Monday, July 25, 2011
Posted to General Law Related

Law - "Online Poker Business: A 'Busted Flush'? Business Is Still Good Despite Recent Ban On American Customers "

Updating earlier ILB poker stories, and particularly the seizing of domain names, 6News has posted a long CNN story -- here are a few quotes:

(CNN) -- The major talking point at the World Series of Poker in Las Vegas this summer was the extent to which experts had got their predictions wrong.

In April, the U.S. Department of Justice forced the three largest online poker sites to close their doors to American customers, essentially imposing prohibition on one of the undisputed boom industries of the 21st century.

The knock-on effect to poker's flagship tournament series was expected to be profound, with player numbers predicted to plummet, perhaps by as much as 60%.

But they didn't. There was almost no change in attendance at all. * * *

At the time the Department of Justice closed the poker sites -- on what has become known as "Black Friday" -- poker operators' bank accounts were frozen and millions of dollars of players' funds were put out of their reach.

The players -- both full time professionals and recreational dabblers -- were initially unsure when they would see their money again and although PokerStars, the largest site, immediately co-operated with the authorities and repaid more than $100m to its American former customers, neither Absolute Poker nor Full Tilt Poker, the two other indicted sites, have yet paid back a penny.

Posted by Marcia Oddi on Monday, July 25, 2011
Posted to General Law Related

Ind. Gov't. - "BMV fights document deception Eyes rules to stem flow of false titles, registrations"

Rebecca S. Green of the Fort Wayne Journal Gazette had this long story Sunday that reports:

As fast as the state’s Bureau of Motor Vehicles has been closing loopholes to make obtaining fraudulent documents more difficult, those interested in getting such paperwork are finding new ways to do so.

A recent federal case filed in South Bend reveals a scheme in which illegal immigrants were provided with genuine, but fraudulently obtained, motor vehicle titles. * * *

In 2007, the Indiana BMV began verifying all Social Security numbers with federal agencies, making it harder for people to obtain identification and registration documents using a fake number.

In January, the BMV started using a new license plate registration procedure. No longer can Hoosiers walk into a BMV branch and walk out with a plate or renewal sticker; documents are now mailed to the owner’s home, making it more likely the vehicle is registered to the person with title to the vehicle.

Corporations and limited liability companies, or LLCs, do not have Social Security numbers but usually have an [easily obtained] employer identification number issued by the IRS.

That is the background. The long story continues, detailing the scheme that led to the federal indictment:
Employees at BMV offices in Mishawaka and South Bend noticed over the past few months that representatives of a business called Servicios Mi Tierra in South Bend and Elkhart were coming into BMV branches to obtain titles and registrations for 10 to 20 vehicles every week.

The documents presented to BMV officials included power of attorney documents, which granted the Servicios representatives the right to act on behalf of other individuals, and IRS paperwork showing an LLC or corporation that almost always included the full name of a person, according to court documents.

The story concludes with a section on efforts to close the loopholes.

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

Law - "Rule Changes Proposed for Research on Humans"

Interesting article in yesterday's NY Times, by Andrew Pollack. It begins:

The government is proposing sweeping changes in the rules covering research involving human subjects, an effort officials say would strengthen protections while reducing red tape that can impede studies.

The officials said the changes were needed to deal with a vastly altered research climate, whose new features include genomics studies using patients’ DNA samples, the use of the Internet and a growing reliance on studies that take place at many sites at once.

Posted by Marcia Oddi on Monday, July 25, 2011
Posted to General Law Related

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, July 24th, 2011:

From Saturday, July 23rd, 2011:

Posted by Marcia Oddi on Monday, July 25, 2011
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/25/11):

Next week's oral arguments before the Supreme Court (week of 8/1/11):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 7/25/11):

Tuesday, July 26th

Next week's oral arguments before the Court of Appeals (week of 8/1/11):

Next Wednesday, August 3rd

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, July 25, 2011
Posted to Upcoming Oral Arguments

Sunday, July 24, 2011

Ind. Gov't. - "Sales-tax issues make Indiana attractive to Amazon, but at what cost?"

Updating this ILB entry from July 14, 2011, Dana Hunsinger Benbow has a long story in the business section of the Sunday Indiana Star. Here are some quotes, but the whole story is worthwhile:

When Amazon.com hears the words "sales tax," it's often been known to ship itself to another state.

The perfect destination? Indiana.

Not only does the Hoosier state give Amazon a pass on collecting taxes for its online sales, its legislators actually deleted a chunk of language from state law four years ago to make sure it didn't have to.

No wonder the monstrous online retailer just announced plans to open its fourth distribution center here, citing the state's friendly ways, and making Indiana one of the top homes for Amazon warehouses in the nation. * * *

Indiana gets the jobs, the property taxes and the economic development from Amazon now. And then -- somewhere down the road -- when the nation has a uniform tax, Indiana can start collecting, and Amazon won't have anywhere to go to avoid it. * * *

Indiana's approach puts other states at a competitive disadvantage when it comes to gaining business from the Seattle-based retailer.

Whenever a state does try to force the sales tax issue, Amazon bolts or threatens to. It also cuts ties with affiliates in those states -- businesses whose websites link to products on the Amazon site.

Just last month, Amazon threatened to cancel plans to build two new distribution centers in Tennessee if it was not provided a sales tax exemption in that state.

Also last month, it severed ties with 10,000 affiliates in California after the state legislature passed a law calling for e-commerce retailers with affiliates in the state to collect sales tax.

In Illinois, Amazon similarly cut ties with affiliates after Gov. Pat Quinn signed a law to force online retailers that work with affiliates to collect the 6.25 percent tax.

Posted by Marcia Oddi on Sunday, July 24, 2011
Posted to Indiana Government

Law - "Gambling interests cover their bets with campaign contributions: In the last 10 years, gambling interests have given nearly $10 million to Illinois politicians"

Long story today in the Chicago Tribune, reported by Joseph Ryan and Bill Ruthhart (formerly of the IndyStar). Some quotes:

Nearly three-fourths of the lawmakers who voted on doubling the number of Illinois casinos accepted political contributions in the last 18 months from the gambling industry — a practice several states ban.

Casinos, racetracks and video poker interests shelled out about $812,000 to lawmakers, the governor and Chicago's new mayor since the beginning of 2010, leading up to the landmark vote on a measure to allow five new casinos, permit slot machines at the horse tracks and fast-track video gambling in bars and truck stops.

The cash flowing from casino companies, horse-track tycoons and video poker investors shows just how much attention the titans of those industries pay to the politicians who legalize and oversee their business.

In the last 10 years, the industry has given Illinois politicians nearly $10 million, a Tribune analysis of campaign fundraising data found. * * *

Three of the top four gambling states have a ban: New Jersey, Indiana and Pennsylvania. Other states with bans include Louisiana, Michigan and Iowa.

In Illinois, among the biggest recipients of gambling cash are the Democrat and Republican leaders of both chambers, along with their caucus committees that help fund the most contested races.

Lawmakers are quick to say there is no connection between their votes and campaign contributions.

Posted by Marcia Oddi on Sunday, July 24, 2011
Posted to General Law Related

Law - Indiana's criminal laws may be in better shape than fed's

Gary Fields and John R. Emshwiller report in the Wall Street Journal in this (perhaps $$$) story that the feds cannot even count all the federal crimes. The story begins:

WASHINGTON—For decades, the task of counting the total number of federal criminal laws has bedeviled lawyers, academics and government officials.

"You will have died and resurrected three times," and still be trying to figure out the answer, said Ronald Gainer, a retired Justice Department official.

In 1982, while at the Justice Department, Mr. Gainer oversaw what still stands as the most comprehensive attempt to tote up a number. The effort came as part of a long and ultimately failed campaign to persuade Congress to revise the criminal code, which by the 1980s was scattered among 50 titles and 23,000 pages of federal law.

Justice Department lawyers undertook "the laborious counting" of the scattered statutes "for the express purpose of exposing the idiocy" of the system, said Mr. Gainer, now 76 years old.

It can often be very difficult to make a call whether or not something counts as a single crime or many.

That is just the start of the article, which is a companion piece to another story, "As Criminal Laws Proliferate, More Are Ensnared"," featured today in the Sentencing Law Blog.

Posted by Marcia Oddi on Sunday, July 24, 2011
Posted to General Law Related

Ind. Law - NW Indiana state senator leads charge for reform of state marijuana laws

From Dan Carden's story in the NWI Times today:

Business leaders asking government to stop interfering in their work is a common occurrence at the Statehouse, and the Republican-controlled General Assembly usually is eager to remove obstacles impeding entrepreneurship.

But when that business is marijuana, the lawmakers who normally would do just about anything to help -- and claim credit for new jobs and tax revenue -- disappear.

That's why state Sen. Karen Tallian, D-Ogden Dunes, is eager for Thursday's meeting of the legislature's Criminal Law and Sentencing Policy Study Committee because the state's marijuana laws finally will get a thorough review.

"You can't believe the number of people that have called me and wanted to testify or help me in some way," said Tallian, who persuaded lawmakers this past spring to authorize the study.

Expected to speak are supporters of industrial hemp production and medicinal marijuana use and Hoosiers who believe it's best to legalize and tax the drug.

Tallian wants legislators to consider changing Indiana's marijuana sentencing laws, which are among the toughest in the nation.

"I want to see what people are willing to do," Tallian said. "We at least need to stop messing over people's lives and stop putting our children in jail for smoking pot."

Currently, possession of any marijuana is punishable by up to a year in jail and a $5,000 fine.

A second offense or possession of more than 30 grams, enough for about 30 to 40 marijuana cigarettes, is a felony, with a potential prison sentence of three years. A person caught holding 10 pounds or more faces up to eight years in prison.

Tallian said a survey this year of her constituents in Lake and Porter counties found 96 percent want the state's marijuana laws changed, as 30 other states recently have done.

See also this July 17th ILB entry.

ILB: I've just looked at the agenda of Thursday's (7/28/11) meeting and it appears that the meeting, which will be held in Room 431, will NOT be webcast, although it seems likely there will be statewide interest in the meeting ...

Posted by Marcia Oddi on Sunday, July 24, 2011
Posted to Indiana Law

Ind. Gov't. - More on "Indiana House, Senate differ on timing of new legislative districts"

Updating this ILB entry from July 20th, the Fort Wayne Journal Gazette has an editorial today on the subject. Some quotes:

Do you know who your state senator is? It might not be who you think it is. How about your state representative? It probably is who you think it is.

Confused? You should be.

Senate leaders say newly drawn districts went into effect July 1, as prescribed in the redistricting bill. House leaders say new districts don’t take effect until 2013, when representatives elected in November 2012 in their new districts take office. As a result, Senate members are free to contact their new constituents with taxpayer-supported legislative mailings, while House members have been prohibited from doing so.

“I had a conversation with the (House) speaker,” said Senate President Pro Tem David Long, R-Fort Wayne. “I was a little concerned about the different interpretations. But the very nature of the fact that all of their people are up for re-election next year makes it different for them. There’s even a brand-new district where there is no representative.”

Long said the two interpretations are a matter of practicality. State senators hold staggered four-year terms, so some won’t be up for re-election until 2014. That could result in double representation where a new district overlaps an old one.

But Rep. Win Moses sees the contradictory interpretations as a source of confusion. The Fort Wayne Democrat said House Speaker Brian Bosma’s decision to hold members to their current districts is counter to past practice, when representatives were allowed to send mailings to their new constituents before their current terms expired.

Moses said he will observe the speaker’s edict but will essentially begin his re-election campaign a year early to notify constituents in the new 81st District. He’ll use campaign funds to cover the mailing costs.

“The bottom line is – I’m available to my new constituents,” he said. “That’s what people expect.”

Posted by Marcia Oddi on Sunday, July 24, 2011
Posted to Indiana Government

Courts - More on "Why shouldn't Georgia lethal injection — and all executions — be recorded on video?"

Updating this ILB entry from July 21, 2011, Erica Goode of the NY Times had a long report this weekend headed "Video of a Lethal Injection Reopens Questions on the Privacy of Executions." Some quotes from near the beginning of the story:

For decades in the United States, what goes on inside the execution chamber has been largely shrouded from public view, glimpsed only through the accounts of journalists and other witnesses.

But the video recording of Mr. DeYoung’s death, the first since 1992, has once again raised the possibility that executions might be made available for all to see. In the process, it has reignited a widespread debate about how bright a light to shine on one of the most secretive corners of the criminal justice system.

Legal experts say the decision by Judge Bensonetta Tipton Lane of Fulton County Superior Court to allow the taping in Mr. DeYoung’s case opens the way for defense lawyers across the country to push for the video documentation of other executions. And it is inevitable, many experts believe, that some of those recordings will make their way onto television or even YouTube, with or without the blessings of a court.

Brian Kammer, a defense lawyer who argued for allowing Mr. DeYoung’s execution to be recorded, said that documenting the death was essential because of the controversy over the drugs used in lethal injections.

“We’ve had three botched lethal injections in Georgia prior to Mr. DeYoung, and we thought it was time to get some hard evidence,” Mr. Kammer said.

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

Saturday, July 23, 2011

Ind. Gov't. - "How many governors are using social media?"

Find out here from Stateline, via a comprehensive chart.

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

Ind. Gov't. - More on: Golf carts on public streets a success story in Gibson County

Updating this ILB entry from July 21st, here is another story, this one from Eagle County 99.3FM, is headed "Lawrenceburg To Allow Golf Carts On Streets." Some quotes:

(Lawrenceburg, Ind.) – It will soon be legal to drive golf carts on the city streets in Lawrenceburg if they’re properly equipped.

City Council passed an ordinance allowing the carts July 5. The ordinance, which states “many citizens of Lawrenceburg operate or would like to operate golf carts on the City streets,” goes into effect August 1.

Those carts will be required to have a sticker which costs $50 annually, expiring December 31 each year. The sticker can be applied for through the Lawrenceburg Clerk-Treasurer’s Office.

Neighboring City of Greendale has previously passed a similar ordinance. Lawrenceburg will allow carts registered there to operate in the city without paying for another registration, so long as the cart and driver meet Lawrenceburg’s regulations.

The Lawrenceburg ordinance does include a number of restrictions:

-The operation of golf carts on streets is only permitted between 7:00 a.m. and 12:00 a.m.
-The operator must possess a valid driver’s license.
-Insurance is required.
-The cart must have head lights, tail lights, brake lights, and turn signals.
-It must be registered with the city.
-The carts cannot be operated on Old State Road 48, State Road 48, or U.S. 50 except to cross at the Front Street intersection.

The ILB anticipates that the combination of aging baby boomers and high gas prices means the number of cities and towns allowing golf carts on public streets will only increase.

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

Ind. Law - "Partner pay at local law firms rises despite recession"

That is the headline to the lengthy, front-page story today ($$) by Scott Olson in the IBJ. Here is a brief quote from the story:

Ice Miller paid its partners an average of $590,000 last year, the most of any local law firm, followed by Barnes & Thornburg at $550,000 and Baker & Daniels at $425,000.

Posted by Marcia Oddi on Saturday, July 23, 2011
Posted to Indiana Law

Friday, July 22, 2011

Ind. Decisions - "Two 7th Circuit opinions reject efforts to assail lengthy child porn and child enticement sentences"

Sentencing Law & Policy looks briefly at two non-Indiana 7th Circuit opinions today "affirming lengthy sentences over various objections for two men who have now learned the hard way that federal law provides severe punishment for making bad use of a computer."

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

Ind. Decisions - Two 7th Circuit opinions today from Indiana

There were two Indiana opinions today.

In US v. Griffin (SD Ind., Young), a 20-page opinion, Judge Sykes writes:

When two Indiana police officers attempted to stop a car matching the description of one reportedly involved in a road-rage incident, the driver Jadrion Griffin, initially showed signs of compliance. He then changed his mind and continued to drive, prompting a brief low-speed car chase. Griffin eventually pulled over, but not before leading the officers through a parking lot where he tossed a plastic bag containing 82 grams of crack into newly fallen snow.

Law-enforcement officers later obtained a federal warrant to search Griffin’s home and there recovered additional crack cocaine and a loaded handgun. A federal grand jury indicted Griffin on a number of drug- and gunrelated crimes. Griffin moved to suppress the evidence of the drugs recovered from the snowy parking lot. The district court denied the motion, and the government introduced the drug evidence at trial. The jury convicted Griffin of all but one of the counts charged. The court imposed a 360-month sentence.

On appeal Griffin claims he was illegally seized when he threw the crack in the snow and therefore the drug evidence should have been suppressed. He also raises two challenges to his sentence. He first claims that he should not have been sentenced as a career offender under section 4B1.1 of the sentencing guidelines because his prior conviction for vehicular flight under Indiana law is not a crime of violence. He also argues that he should be resentenced using the new crack-topowder ratio prescribed by the Fair Sentencing Act of 2010 (“the FSA”), Pub. L. No. 111-220, 124 Stat. 2372.

We affirm. Griffin was not “seized” for Fourth Amendment purposes when he discarded the crack in the parking lot during the low-speed police chase, so the drug evidence was properly admitted at trial. Griffin’s sentencing challenges are foreclosed by our precedent and by the Supreme Court’s recent decision in United States v. Sykes, 131 S. Ct. 2267 (2011).

In Continental Casualty v. Sycamore Springs Howowners Assoc. (SD Ind., McKinney), a 6-page opinion, Chief Judge Easterbrook begins:
A residential developer built a new subdivision of Indianapolis in the floodplain of the White River. Both the developer and the buyers (who have organized as Sycamore Springs Homeowners Association) knew that the land is low-lying and prone to flooding. Sheehan, the developer, constructed levees and floodwalls to protect the houses; it also built retention ponds and a stormwater holding system. The Courtyard Homes at Sycamore Springs, LLC, handled the construction and sale of buildings in the subdivision’s Parcel D. Courtyard had Sheehan fill one of the retention ponds, so that it could build additional homes; it also constructed duplexes where Sheehan had planned singlefamily housing. The result was a reduction in Parcel D’s ability to absorb rainwater (more of the ground was covered with concrete) and greater demands on the stormwater system. On September 1, 2003, heavy rains fell in Indianapolis, and several homes in the subdivision were inundated when a retention pond overflowed.
What follows in an interesting insurance opinion.

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

Ind. Courts - How does the death penalty appeals process work? [Updated]

If you are not an attorney, or do not do criminal or death row appeals, the process can be confusing. It seems like you see the same case names again and again, in different Indiana and federal courts.

At the Law School for Journalists conference I attended Wednesday, at a panel titled "Least Understood Areas of Law," I obtained a great chart, headed "Avenues of appeal for a death row inmate."

Indianapolis criminal defense attorney Monica Foster, whose practice is devoted to representing persons in death penalty cases at the trial and appellate levels, and Greta Scodro, Deputy Administrator and senior staff attorney in the Division of Supreme Court Administration, put it together.

As noted on the chart, the only appeal that is mandatory is direct appellate review of the death sentence by the Indiana Supreme Court. All of the other potential steps in the appellate process are optional; the convicted person chooses whether to request review.

The second column on p. 1 shows a petition for state post-conviction review (PCR), based on, for example: The defense received at the trial -- "My lawyers did something wrong." Or "The prosecutors withheld evidence." This process begins in the trial court, without a jury.

If that avenue is exhausted, the third column shows habeas relief -- "something deprived me of my rights under the federal constitution."

Thereafter, judicial review of the conviction and sentence to which the convicted person is entitled as a matter of right is at an end, but the convicted person may seek additional discretionary review, as set out on p. 2, on the basis, for instance, of "a new claim the convicted person could not have known about before." Actions in the 3 columns on p. 2 usually take place at the same time.

The setting of execution dates was also discussed by the panel. Back to p. 1:

[Updated at 4:37 pm]

The ILB has just received this note from Steve Creason, Chief Counsel, Appeals Division, Office of the Attorney General:

Marcia,

The handout summarizing appeals in capital cases was interesting and illustrated well the stages of the appellate process. Thanks for posting it.

I think it’s worth noting, however, that this same process is generally available to all criminal defendant and not just those sentenced to death. Obviously, the parts regarding executions and stays aren’t relevant in non-capital appeals, but even successive PCR/habeas and the Executive Clemency process is available. I’m not sure that everyone understands that.

The process can be long and confusing. And although the process is essentially the same in capital and non-capital, the capital cases invariably receive a more searching review and include far more claims than your average non-capital case.

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

Law - The private copyright of public statutes

The ILB has had a number of entries on the private copyrighting of state fire and building codes by trade groups, and their resultant inaccessibility except through the groups' printed publications. See, for instance, this one from Aug. 7, 2008, headed "Indiana building codes, part of the Indiana Administrative Code, are copyrighted and not available online."

In a number of states, the state's statutes have been copyrighted! That of course locks in publication of the statutes, and discourages competition by new, and much cheaper or no-charge, online publishers.

Here is an article on the topic by Ed Walters, the CEO of Fastcase. It is titled "Tear Down This (Pay)Wall: The End of Private Copyright in Public Statutes."

And thanks to the Law Librarian Blog, which has favorable comments on the article.

Posted by Marcia Oddi on Friday, July 22, 2011
Posted to General Law Related

Ind. Courts - Judge Robert H. Staton dies at 86 [Updated]

From today' obituary in the Indianapolis Star:

Judge Staton had a distinguished career as an attorney, jurist, and author. He was elected to the Indiana Court of Appeals in November 1970 and served on the bench from January 1, 1971 until his retirement on March 15, 2000. During that time, he authored more than 3,000 majority opinions.

Judge Staton was the first editor of Res Gestae, the law journal of the Indiana State Bar Association and frequently published articles in legal journals. He authored several state legal histories, including "The History of the Court of Appeals of Indiana" and "Lessons Learned: The History of Continuing Legal Education and Experiences from Mandatory Continuing Legal Education States."

Judge Staton was also the Chairman of countless Indiana Continuing Legal Education Forum Update and Appellate seminars. He was a member of the American Bar Association, past president of the Indiana State Bar Association, and the Chairman of the ISBA specialization committee. * * *

Family and friends will gather on Sunday, July 24, 2011 from 4:00 p.m. to 8:00 p.m. in the Leppert Mortuary, Nora Chapel . Funeral service will be held on Monday, July 25, 2011 at 1:00 p.m. at Second Presbyterian Church. You are invited to visit http://www.leppertmortuary.com to sign the guestbook. Memorial contributions may be made to The Honorable Robert H. Staton Intramural Moot Court Competition at IU School of Law-Indianapolis c/o IU Foundation Showalter House, PO Box 500, Bloomington, IN 47402 or Carmel Clay Public Library Foundation, 55 4th Ave SE, Carmel, IN 46032.

Here is Judge Staton's biography on the Indiana Court website.

From this August 15, 2006 ILB entry:

The July/August [2006] issue of the Res Gestae, the Journal of the Indiana State Bar Association, arrived in my mailbox yesterday, and it's looking good! This is its 50 year birthday, and it has spiffed up in celebration - with new shiny pages, a cool cover, and more.

There are a number of great articles in this issue. My favorite is one by Bill Brooks, starting on page 27, titled "A lot of things grew out of Res Gestae." Bill interviews Judge Robert H. Staton, who was responsible for putting together the very first issue, 50 years ago.

[Update] Here is a copy of the the Res Gestae article, thanks to the ISBA.

Here is a copy of Judge Staton's 1997 law journal article, "The History of the Court of Appeals of Indiana," co-authored by Gina M. Hicklin.

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

Thursday, July 21, 2011

Ind. Courts - Still more on "Teachers' union seeks to block voucher law" [Updated]

Okay, good news. Updating this ILB entry from earlier today, the ILB has received and is posting the documents in the school voucher case.

The name of the case is Teresa Meredith, et al v. Mitch Daniels. The case was assigned to Judge Michael D. Keele, Marion Superior Court 7.

Here is the 14-page Complaint for Declaratory and Injunctive Relief, filed July 1, 2011. It begins:

1. This is a lawsuit for declaratory and injunctive relief, in which Plaintiffs challenge the constitutionality of Indiana's "Choice Scholarship Program" ("CSP"), which was enacted on May 5, 2011 as part of House Enrolled Act No. 1003, §§ 5-6 & 10, P.L. 92-2011. Taking effect on July 1, 2011, the CSP creates a program under which the State - rather than educating Indiana children through a "general and uniform system of Common Schools," Ind. Const. art. 8, § 1 - would instead use funds raised for public education to pay for a portion of these children to receive their state-funded education in private schools. The vast majority of these CSP schools will be religious institutions, which are extensions of the religious ministries of the churches that sponsor them, and which exist for the purpose of providing their children with an education based on and grounded in religious training and worship. The CSP will be implemented beginning with the 2011-2012 school year.

2. This use of taxpayer funds is contrary to the Indiana Constitution's directive in Article 8, § 1 that the General Assembly provide for the education of Indiana children through "a general and uniform system of Common Schools." And it is also incompatible with the Constitution's provisions, found in Article 1, § § 4 and 6, that safeguard Indiana citizens' freedom of conscience by ensuring that they are not compelled, through the taxes they pay, to support religious institutions, ministries, and places of worship against their consent.

The relief sought:
1. Declare the Choice Scholarship Program unconstitutional under (a) Article 8, § 1, of the Indiana Constitution; (b) Article 1, § 4, of the Indiana Constitution; and (c) Article 1, § 6, of the Indiana Constitution;

2. Preliminarily and permanently enjoin defendants, and all persons and entities acting under their direction or in concert with them, from taking any measures to implement or enforce the Choice Scholarship Program;

3. Award plaintiffs their attorneys' fees, expenses, and costs incurred in prosecuting this lawsuit; and

4. Order such other and further relief as this Court may deem appropriate.

Here is the State's "Memorandum in Opposition to the Motion for Preliminary Injunction." It is a very large (over 2 MB) file, 50 pp. of memo followed by 16 pp. of exhibits. The State's Table of Contents, pp. 2-4, provides a good outline of the State's argument.

Hearing Date. Aug. 11 is the date set for a hearing on the plaintiffs' request for a preliminary injunction.

[Updated at 7:45 pm] The ILB has now received a copy of the 65-page Intervenor Applicants' Brief in Opposition to Plaintiffs' Motion for Temporary Injunction, which was filed earlier today.

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

Not law - "You can tell how a female politician is faring by looking at the photographs of her in print media"

Interesting op-ed piece in Politico. The author, Martin Frost, concludes:

The story about female public figures and photos is not new, unfortunately. About 40 years ago, I clerked for a terrific federal judge, Sarah Hughes, who was 74 at the time. She often complained when The Dallas Morning News ran unflattering photos of her.

This went on for a while. One day I went down to the paper’s photo morgue — where a publication’s pictures were kept on file — and I took some of the offending photos. This was before digital photographs — so once a picture was gone, it was really gone.

Keep your eye on the Bachmann photos that run in newspapers and magazines over the next weeks and months. You’ll know when she starts to slide.

Posted by Marcia Oddi on Thursday, July 21, 2011
Posted to General Law Related

Ind. Courts - Long-time Kosciusko County judge dies at 83

From the Warsaw Times-Union:

Long-time local judge Hon. Charles R. “Bob” Burner, who sat on the first bench of the Kosciusko County Court, died Wednesday afternoon at Kosciusko Community Hospital. He was 81.

Burner served as a local judge beginning in 1964, as a Warsaw City Court judge before assuming the bench as judge of the newly created Kosciusko County Court in 1976. He took over the Superior Court bench two years later.

Burner left office in 1996 after losing to current-Judge Duane Huffer in that election. He served as a special judge in a sporadic role until 2005.

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

Ind. Gov't. - Golf carts on public streets a success story in Gibson County

ILB readers may recall that the ILB has had many posts on the topic of allowing golf carts on local streets. The General Assembly finally passed authorizing legislation in 2010. How is it working out? This July 17th survey story by Suzy Hulfachor in the Princeton Daily Clarion begins:

PRINCETON — Golf carts are off the course and on the streets in several Gibson County communities.

Owensville, Haubstadt, Fort Branch and Oakland City have all passed golf cart ordinances within the past two years, and it’s a growing transportation trend in other communities, including Vincennes, Lebanon, Hamilton, Vincennes and Summitville.

Haubstadt Chief of Police Glenn Munnier says the police department has issued 58 golf cart permits.

“The ordinance has been in effect for over a year now. We have had no accidents and no major issues with violations.”

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

Ind. Courts - "Murder witness faces contempt trial: Prosecutors using unprecedented tactic to seek lengthy sentence"

From the July 20th New Albany News & Tribune, a long story by Matt Thacker. Some quotes:

JEFFERSONVILLE — The cousin of convicted murderer Ryan Sheckles could face years in prison for his courtroom outburst after the Clark County Prosecutor’s Office took the unprecedented step of requesting a jury trial for his contempt charge.

Robert “Harry” Sheckles, 26, took the stand at his cousin’s trial June 3 after signing an agreement to testify in exchange for pleading guilty to class D felony assisting a criminal. During questioning, Sheckles refused to answer questions, attempted to leave the witness stand against the judge’s order and launched into a profanity-filled outburst. * * *

The state has now filed a motion to hold Robert Sheckles in contempt of court. Chief Deputy Prosecutor Jeremy Mull said a judge may incarcerate someone for as many as 180 days without a trial, but prosecutors are asking the court to convene a 12-member jury to hear evidence and determine whether Robert Sheckles was in contempt. That would allow a judge to sentence him to more than six months.

Contempt hearings are generally civil rather than criminal proceedings. Mull said there is no maximum sentence for contempt in Indiana Code. However, he added contempt is sometimes viewed as similar to obstruction of justice, a class D felony with a maximum sentence of three years in prison.

“We’re going to seek a sentence of several years,” Mull said. “I’m sure I could get a three-year sentence, but possibly more.”

An inmate cannot receive good-time credit for a contempt sentence, so three years would be like a six-year sentence on a criminal case, according to Mull. It would run consecutively to the 12-year sentence Sheckles is now serving for dealing cocaine in Floyd County.

Mull said he has reviewed several previous court decisions and discussed the case with the Indiana Attorney General’s Office. He believes Indiana law allows for a contempt case to go to trial, although it may be the first time in the history of Indiana.

“To my knowledge, it’s never been done in the state before,” Mull said.

He said the attorney general is following the case closely and ready to handle the appeal since it seems likely it will create new case law in the state. Mull said they decided to take this step because of the seriousness of Sheckles’ conduct and because it happened during a double-murder trial.

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

Ind. Gov't. - Still more on: "State Sen. Tom Wyss wants Indiana’s attorney general to issue an opinion on the legality of the bill before Fort Wayne City Council that would ban city contractors from making political donations to city politicians."

Updating this ILB entry from yesterday, an editorial today in the FWJG begins:

Advocates for an ordinance to ban city contractors from contributing to the campaigns of candidates for city government offices are ignoring sound legal advice from all sides of the political spectrum.

Authorities in the best position to know are clear: Campaign finance is one area where Indiana cities are not permitted to pass local ordinances that trump state law. End of story. Or it should be.

And ends:
[City Council members Liz Brown and Mitch Harper], it has become clear, really like to argue their points, especially if they think it makes Mayor Tom Henry look bad. But like it or not, state law overrules city law on this issue, no matter how loudly or often those two lawyers argue otherwise.

Lawyers have a saying: If the facts are against you, argue the law. If the law is against you, argue the facts. If both the law and facts are against you, pound the table.

That sound you hear is Brown and Harper pounding away.

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

Ind. Courts - More on "Teachers' union seeks to block voucher law"

Reading Carrie Ritchie's story today in the Indianapolis Star, that begins "Two Indianapolis mothers are trying to join the state in fighting a lawsuit that challenges Indiana's new school-voucher program," made me realize how little information I've seen about this lawsuit. Here is an earlier ILB entry, from July 1.

The case is in Marion Superior Court, but who is the judge? The complaint reportedly asks for "a preliminary injunction against the implementation of Indiana’s recently enacted school voucher law," but where is the complaint?

Today, near the end of the Star story, is this essential piece of information:

Coffy and Poindexter [the two mothers] want the judge to rule on their request quickly so they could be part of an Aug. 11 hearing on the plaintiffs' request for a preliminary injunction.

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

Ind. Gov't. - More on "Advisory panel halts audit of state toxicology lab"

Updating its front-page story from yesterday, the Indianapolis Star today has this editorial that begins:

An audit of the state lab that runs tests in criminal drug cases has produced findings so disturbing that the law was changed to have state government take over the operation from Indiana University.

The first act by the new regime? Stop the audit.

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

Law - More on the American Legislative Exchange Council (ALEC)

Apparently I'm not the only one of two minds after reading stories about ALEC and looking at some of its proposals. Election Law Blog had a post yesterday headed "More back-and-forth on ALEC’s role." See also this post from the Project on Government Oversight.

For ILB background, start with this July 17, 2011 ILB entry.

Posted by Marcia Oddi on Thursday, July 21, 2011
Posted to General Law Related

Ind. Decisions - Two 7th Circuit opinions today from Indiana

In Crawford v. Countrywide Home Loans (ND Ind., Simon), a 22-page opinion, Judge Kanne writes:

Yvette and L.V. Crawford were evicted from their home by sheriff’s deputies enforcing a state court foreclosure judgment. Their mortgagee, Countrywide Home Loans, Inc., had obtained the judgment after the Crawfords defaulted on their mortgage. The Crawfords sought relief in federal court, naming Countrywide, their foreclosure suit counsel, their county sheriff, and their county board of commissioners in a slipshod complaint that spanned twenty-two counts. On various motions, the district court dismissed two defendants, declined to allow the addition of two others, dismissed two claims for want of subject matter jurisdiction under the Rooker-Feldman doctrine, and ultimately entered summary judgment in favor of the remaining defendant. We affirm.
In Townsquare Media v. Brill (SD Ind., Young), a 19-page opinion, Judge Posner writes:
This appeal requires us to plumb the mysteries of removal and remand in the context of bankruptcy. * * *

So the remand was indeed unreviewable, and Regent’s appeal must therefore be— we conclude at long last— DISMISSED.

Posted by Marcia Oddi on Thursday, July 21, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Commissioners close Jackson courthouse: Air conditioning system fails"

The Seymour Tribune reports this morning:

Jackson County Board of Commissioners closed the courthouse in Brownstown on Thursday because of air conditioning woes.

Jackson Circuit Judge Bill Vance said the air conditioning does not work and that a part to fix the system may arrive sometime to day.

Vance said a theft trial scheduled to begin Thursday morning in his court has been postponed.

Immediately visions of Atticus Finch and Clarence Darrow, carrying on in sweltering courtrooms with spectators fanning themselves in the background, all filmed in black and white, passed before my eyes.

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

Courts - "Why shouldn't Georgia lethal injection — and all executions — be recorded on video?"

Updating yesterday's ILB entry, Prof. Doug Berman of the Sentencing Law and Policy Blog, poses that question today in this long entry.

Posted by Marcia Oddi on Thursday, July 21, 2011
Posted to Courts in general

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

For publication opinions today (2):

Jacqueline Wisner, M.D., and the South Bend Clinic, L.L.P. v. Archie L. Laney

In James Bellamy v. State of Indiana, an 8-page opinion, Judge Bradford writes:

Appellant-Defendant James Bellamy appeals the trial court’s finding that he was in direct criminal contempt. Alternatively, Bellamy argues that the trial court erred in refusing him the opportunity to explain himself. We affirm. * * *

Bellamy failed to timely appear at the August 11, 2010 pre-trial hearing. The trial court subsequently issued a warrant for Bellamy’s arrest. Bellamy was later located and was brought before the trial court. The trial court released Bellamy on his own recognizance after the trial court warned him that he would be found in contempt and taken into custody if he failed to timely appear for future scheduled court proceedings.

Bellamy timely appeared at a September 1, 2010 pre-trial hearing, at the conclusion of which the trial court scheduled his trial for November 8, 2010. On November 8, 2010, Bellamy again failed to timely appear before the trial court. Bellamy eventually appeared before the trial court fifty-four minutes after his trial was scheduled to begin. In light of his failure to timely appear for trial, the trial court found that Bellamy was in direct contempt of the trial court’s previous order and sentenced Bellamy to five days2 of incarceration in the Marion County Jail. The parties then proceeded to trial, during which the State sought and was granted permission to dismiss the Class A misdemeanor trespass charge. Following the conclusion of the evidence, the trial court found that Bellamy was not guilty of Class C misdemeanor unauthorized possession of a license or permit.

Bellamy contends that the trial court erred in finding him in direct contempt, rather than indirect contempt. Alternatively, Bellamy argues that even if the trial court did not err in finding him in direct contempt, the trial court erred in refusing to allow him to explain the reason for his tardiness to the court. * * *

Bellamy does not dispute that his acts stood in disregard of judicial authority or that the trial court possessed personal knowledge of his contemptuous act. Rather, Bellamy contends that the trial court erred in finding him in direct criminal contempt following his failure to timely appear before the trial court because of his status as a layperson. * * *

[D]espite his status as a layperson, we conclude that the trial court did not err in finding Bellamy in direct contempt of the trial court. Bellamy’s failure to timely appear after receiving an express prior warning from the trial court that such a failure would result in a contempt finding distinguishes the instant matter from Rice and Williams, and demonstrates the requisite interruption to the scheduled court proceedings and disrespect for the trial court. * * *

While we agree that the better practice would have been for the trial court to allow Bellamy the opportunity to explain his tardiness, we conclude that, in light of the facts and circumstances surrounding the instant matter, any challenge to the error relating to the trial court’s failure to allow Bellamy to explain his tardiness was waived. Bellamy was represented below by counsel, and his counsel neither made an offer to prove nor provided additional argument relating to the reason for Bellamy’s tardiness.

NFP civil opinions today (1):

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

NFP criminal opinions today (3):

Antonio Jenkins v. State of Indiana (NFP)

Michael J. Earnest v. State of Indiana (NFP)

Marvin M. Willis v. State of Indiana (NFP)

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

Ind. Decisions - Supreme Court decides one today

In Glenn Carpenter v. State of Indiana, a 6-page opinion, Chief Justice Shepard writes:

Appellant Glenn Carpenter was discovered asleep in the waiting room of a dental office, apparently drunk or overdosed. This led to a forty-year sentence for possession of a firearm by a serious violent felon and being an habitual offender. We conclude that twenty years was an adequate response to the situation.

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

Ind. Gov't. - "Porter County RDA fight is over"

According to this story from Bob Kasarda of the NWI Times, the Supreme Court has denied transfer in County Council of Porter County v. Northwest Indiana Regional Dev. Authority, et al.. See ILB summary of COA opinion here, from March 2, 2011. The story begins:

The Indiana Supreme Court brought an end Wednesday to Porter County's attempts to withdraw as a member of the Northwest Indiana Regional Development Authority.

The court voted 4-1 not to accept the county's request to hear the case, following the county's defeat at the state appellate court level.

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

Wednesday, July 20, 2011

Courts - "Top Georgia court allows rare videotape of execution, denies stay for death row inmate"

From the Washington Post this evening, this AP story -- some quotes:

JACKSON, Ga. — Georgia’s top court on Wednesday narrowly rejected a death row inmate’s last-ditch appeal to block his execution and cleared the way for what could be the nation’s first videotaped execution in almost two decades.

The Georgia Supreme Court’s 4-3 decision rejected an appeal by Andrew Grant DeYoung, who claimed the state’s plan to use a new lethal injection drug would cause him needless pain and suffering. In a separate opinion, the court unanimously upheld a county judge’s ruling that the 7 p.m. execution could be videotaped and kept under seal. * * *

The request to videotape the execution was filed by Brian Kammer, an attorney for death row inmate Gregory Walker. He said he wanted to preserve “the best evidence possible” for his challenge to the state’s method of lethal injection.

Prosecutors asked the court to reverse the ruling, worrying that it could set a troubling precedent. But justices said they dismissed the challenge because the state failed to follow proper appeal procedure.

Kammer said lawyers believe the only other time an execution was videotaped was in California in 1992, when lawyers were challenging the use of gas as a method of execution. That is also the understanding of Richard Dieter, executive director of the Washington-based Death Penalty Information Center, which opposes capital punishment.

Dieter said the tape of the California execution was later destroyed and he was aware of no other court-ordered videotaped execution. Dieter said Timothy McVeigh’s 2001 execution at a federal prison in Indiana was broadcast on closed-circuit TV to a gathering of survivors and victims’ family members in Oklahoma City, but there was no indication it was taped.

Posted by Marcia Oddi on Wednesday, July 20, 2011
Posted to Courts in general

Ind. Decisions - "Significant new fast-track disparity ruling from Seventh Circuit"

Today's 7th Circuit decision in USA v. Sergio Ramirez, a case out of Illinois, is the subject of this Sentencing Law Blog post that begins:

A Seventh Circuit panel has handed down an interesting and important new ruling about fast-track disparity sentencing consideration."

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

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

For publication opinions today (3):

In Marianne Jackson v. Thomas Trancik, M.D., a 12-page opinion, Chief Judge Robb writes:

Marianne Jackson appeals the trial court’s grant of summary judgment to Thomas Trancik, M.D., in Dr. Trancik’s lawsuit to collect on a medical bill. On appeal, Jackson raises six issues, which we consolidate and restate as two: whether the trial court abused its discretion when it granted Dr. Trancik’s motion to strike an expert witness affidavit designated by Jackson; and whether an issue of material fact remains as to the amount Jackson owes Dr. Trancik. Concluding that the trial court abused its discretion in striking the affidavit and that the affidavit establishes an issue of material fact as to the amount Jackson owes, we reverse and remand.* * *

Here, because the cause of action is an account stated, not a defendant’s liability for tort damages, the issue is not the reasonable value of Dr. Trancik’s services, but whether the amounts Dr. Trancik billed to Jackson were correct. That is, did the charges correctly reflect the medical services Dr. Trancik provided and the amounts usually, customarily, and reasonably billed for such services? * * *

Lewis’s curriculum vitae indicates she reviews medical bills for a living as part of her work with MedReview Solutions, a firm she has owned since 2005. In addition to that experience, Lewis is a certified public accountant and has completed a training program with Medical Billing Advocates of America. As a result, Lewis is qualified, based on her experience and training, to render an expert opinion about the correctness of Dr. Trancik’s billing. * * *

The fact that Lewis is not a medical doctor does not make her unqualified to give her opinion, because her affidavit indicates her opinion is based, not on the science of medicine, but rather on her knowledge of medical billing methodology and billing codes.

In John R. Berry, IV v. State of Indiana , a 28-page opinion, Judge Crone writes:
John R. Berry IV, told a man that he was going to kill him and assaulted the man with a hammer. The State charged Berry with class A felony attempted murder.1 At trial, Berry argued that he was not responsible by reason of insanity at the time of the crime pursuant to Indiana Code Section 35-41-3-6. The trial court rejected Berry's insanity defense, finding that Berry's psychotic symptoms at the time of the crime were caused by his voluntary use of alcohol and that Berry was able to appreciate the wrongfulness of his conduct. The trial court found Berry guilty as charged.

On appeal, Berry argues that there is no evidence that he was intoxicated at the time of the crime and that it is improper, as a matter of law, to conclude that his psychotic symptoms were voluntarily induced. He also argues that his conduct before, during, and after the offense does not support a reasonable inference of sanity.

We conclude that there is no evidence that Berry was intoxicated when he committed the offense. We adhere to the longstanding principle that a defendant suffering from a mental disease or defect caused by severe, prolonged, and chronic alcohol abuse that renders that person unable to appreciate the wrongfulness of his or her conduct is not responsible for prohibited conduct committed while in that condition. We conclude that the evidence is undisputed that at the time of the offense Berry suffered from psychotic symptoms caused by his prolonged and severe alcohol abuse and that he was unable to appreciate the wrongfulness of his conduct. Accordingly, we conclude that the trial court erred in rejecting his insanity defense. We reverse the judgment of the trial court and remand with instructions to find Berry not guilty by reason of insanity and for further proceedings as required by the Indiana Code.

In Wellpoint, Inc., et al. v. National Union Fire Ins., Co., et al., a 15-page opinion with diagrams, Judge Vaidik writes:
This is an insurance coverage dispute between Anthem Insurance and one of its excess reinsurers, Twin City Fire Insurance Company. Anthem was sued by a group of physicians in Connecticut for improperly delaying or denying reimbursement for medical services. Thereafter, Twin City became one of Anthem’s excess reinsurers. Anthem then became subject to a series of additional state and federal lawsuits alleging improper denial of reimbursement. Anthem sought defense and indemnification from its reinsurers for several of the latter claims. Twin City denied coverage, arguing that those suits “related back” to the claim preceding its policy period and thus were excluded from coverage. The trial court agreed and entered summary judgment in favor of Twin City. Anthem appeals. We conclude that none of the subject policy provisions operate to exclude coverage in the manner Twin City proposes. We reverse and remand.
NFP civil opinions today (3):

Paternity of A.C.; C.C. v. B.M. (NFP)

R.W. v. Review Board (NFP)

Janet Barkes Trust, et al. v. Monica Stuckwisch, et al. (NFP)

NFP criminal opinions today (2):

Thomas West v. State of Indiana (NFP)

James H. Higgason, III v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 20, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Law School for Journalists

I spent the day at the 2nd annual Law School for Journalists, put on by the Indiana Courts. I met many of the outstanding reporters whose work has been featured on the ILB, along with the great court staff, trial and appellate judges, and law professors who participated in the excellent program. Several of the handouts will be useful for many ILB readers, and I will be uploading them. (BTW, if you thought about attending this year, but didn't, kick yourself.)

Posted by Marcia Oddi on Wednesday, July 20, 2011
Posted to Indiana Courts

Law - "Finally, Minnesota open for business"

From Politico, a story by Jennifer Epstein that begins:

Minnesota’s legislature approved a budget deal in the early hours of Wednesday morning that will end the state’s 20-day government shutdown - the longest ever in a state - once Gov. Mark Dayton signs it later in the day.

In a special session that began Tuesday afternoon and continued on until 3:30 am, the state’s House and Senate approved a series of budget bills that Dayton, a Democrat, has promised to ink to restart government operations and have 22,000 state employees back at work by Thursday.

Posted by Marcia Oddi on Wednesday, July 20, 2011
Posted to General Law Related

Ind. Gov't. - "Indiana House, Senate differ on timing of new legislative districts"

Fascinating story, dated July 15th in this Indiana Economic Digest posting, from CNHI's statehouse bureau chief Maureen Hayden. Some quotes from the long story:

The Indiana General Assembly voted in April on a redistricting plan that revamps state legislative districts, but when it goes into effect depends on which side of the Statehouse those legislators are on.

State senators were told by their leaders to start representing their new districts July 1 and to immediately begin serving constituents in their newly carved territories.

House members, though, were told the redistricted maps, which are created every 10 years and are driven by census numbers, don’t go into effect for them until after the November 2012 election.

The result is that Senate members who were elected by one group of voters are now representing some voters who elected someone else to the Senate, while House members are representing the same voters who put them into office last November. * * *

Jeff Papa, chief legal counsel for the Indiana Senate, said the redistricting bill passed by the legislature in the last session contained language that made the maps effective as of July 1.

But House leaders read the bill differently. A statement released by House Speaker Brian Bosma said “House Republicans were elected in November to a two-year term, and will fulfill their elected duty by representing their current districts until the next election.”

Rep. Jeff Espich, a longtime member of the House from Uniondale who’s been through three redistrictings, said he read the bill that way, too. “I don’t think legally they start representing a new district until they’re elected by voters in that district,” Espich said.

The Senate’s decision to move ahead with implementing the new districts caught some House members by surprise. In late June, when the Muncie Star-Press wrote a story that said redistricting by the Republican-controlled state legislature put Muncie in Democrat state Sen. Tim Lanane’s district effective July 1, some House members thought the newspaper had erred.

But Lanane, like Leising and Head, was told by Senate leaders that he was to start representing constituents in his new district and refer constituents in his old district to their new state senator. Like Leising and Head, Lanane also vows to help constituents from his old districts, so that no one falls between the cracks. “We’re all here to serve Hoosiers,” Lanane said.

The different approach toward the new maps stems in large part from the logistics of Senate elections. While all House members are up for re-election every two years, state Senate terms are staggered. Each senator serves a four-year term, with half of the Senate up for election during one election cycle while the other half is up for election two years later.

Papa said delaying implementation of the maps would mean some senators would be elected in new districts that would overlap with the old districts of senators who had yet to face election. “This stops the confusion,” Papa said of the July 1 effective date.

Under the new Senate district maps, there is an incumbent state senator living in every district. But House members would have difficulty implementing the July 1 date because the new House district maps include nine new districts where there is no incumbent House member and several districts where two incumbents or more reside. If the House were to have adopted the new districts July 1, some communities would have no representation, while others would have had two or more House members representing them in the Statehouse.

Posted by Marcia Oddi on Wednesday, July 20, 2011
Posted to Indiana Government

Ind. Gov't. - More on: "State Sen. Tom Wyss wants Indiana’s attorney general to issue an opinion on the legality of the bill before Fort Wayne City Council that would ban city contractors from making political donations to city politicians."

Following up on his story yesterday (ILB entry here), Benjamin Lanka of the Fort Wayne Journal Gazette has a story today that begins:

A proposal to ban city contractors from making contributions to city politicians violates state law, according to an opinion offered by the attorneys for the Indiana Election Division.

Dale Simmons and Leslie Barnes, co-counsels for the state division, wrote a four page memo dated Monday providing detailed reasoning for why the proposal does not comply with state law.

"We believe the proposed ordinance unlawfully attempts to exercise the 'power to conduct elections,' which is a power expressly withheld from municipalities by the General Assembly," they wrote. "If this were not so, it would be easy to anticipate the confusion wrought in the administration of elections by numerous and conflicting local campaign finance regulations."

The reasons cited by the election division are similar to those cited by critics since the proposal was first discussed: mainly, state law prevents local communities from enacting their own election or campaign finance restrictions.

Posted by Marcia Oddi on Wednesday, July 20, 2011
Posted to Indiana Government

Ind. Gov't. - "Advisory panel halts audit of state toxicology lab"

Mark Alesia and Tim Evans report on the Indianapolis Star front-page this morning in a lengthy story that begins:

A half-finished audit of drug and alcohol test results from the state's toxicology lab already has found serious problems that raise the possibility of wrongful convictions.

But just how bad the situation is might never be known.

The Indianapolis Star learned Tuesday that the state has abruptly halted the independent audit. It was one of the first recommendations offered by a new three-person board appointed by Gov. Mitch Daniels.

Linda Chezem, chairwoman of the advisory board overseeing the state Department of Toxicology's move from Indiana University to a stand-alone state agency, said it's prudent to review the audit. She cited the cost -- more than $250,000 -- and the need to make sure the state is "spending money to get the best information we can."

Chezem said she has "no idea" how long it will take to review the audit. And it's uncertain whether the state will restart the audit.

Defense attorneys immediately criticized the decision, especially in light of the possibility that the audit's findings could form the basis for legal challenges and potentially clear people convicted on question able evidence.

Larry Landis, executive director of the Indiana Public Defender Council, said stopping the audit without an alternative for reviewing the alcohol tests "sounds to me like a cover-up."

IU hired Colorado-based auditor Forensic Consultants Inc. to examine the paper records for every positive test result from 2007 to 2009. Auditors found errors in 10 percent of marijuana cases and 32 percent of cocaine cases. They were working on the substance involved in the most cases -- alcohol -- when informed by email to "place a hold" on the audit.

Later in the story:
Alcohol tests are also different in an important way. State law requires only the trace presence of cocaine or marijuana for a conviction. But alcohol convictions require knowing not just whether alcohol is present, but how much, so testing needs to be more precise.

While defense attorneys expressed concern about the decision itself, there was also confusion over how it was communicated -- and on whose authority.

The situation reflects the difficulty of moving the troubled lab from the IU School of Medicine to a state agency. Lawmakers mandated the move earlier this year amid growing concerns over the lab's performance. The law took effect July 1.

Chezem stressed that the law only gives her group an advisory role to the governor. She said the board voted unanimously Friday to include suspension and review of the audit in a report that will include other recommendations. The report could be released as soon as today.

A spokeswoman for Gov. Mitch Daniels, however, said the board hasn't delivered any recommendations.

Nonetheless, the auditor, Robert Zettl, said he received an email Monday from Gary Brackett, business manager of the toxicology department. Zettl read the email over the phone to The Star: "We have just been informed by the toxicology advisory board to place a hold on the current contract, and work completed by Forensic Consultants, until further notice."

Here is a list of earlier ILB entries on "toxicology," mostly referencing earlier Star stories by the same investigative team.

Posted by Marcia Oddi on Wednesday, July 20, 2011
Posted to Indiana Government

Tuesday, July 19, 2011

Ind. Decisions - State will not appeal preliminary injunction in immigration law challenge

Updating this ILB entry from June 25th, headed "In rapid succession, federal judges slam the brakes on major elements of Indiana's strict immigration and abortion laws," Indiana Attorney General Zoeller has just issued this press release. A quote:

INDIANAPOLIS - Today, Indiana Attorney General Greg Zoeller announced that his office will continue to defend Indiana's new immigration law in U.S. District Court for the Southern District of Indiana and he will oppose the plaintiffs' attempt to obtain a permanent injunction. The court had entered a preliminary injunction June 24, temporarily blocking enforcement of two provisions of Senate Enrolled Act 590, the state's new immigration law. With the appeal-filing deadline approaching this week, Zoeller has decided not to appeal Judge Sarah Evans Barker's preliminary ruling to the federal appeals court in Chicago - a process called interlocutory appeal.

"Although our office would have adequate resources to appeal the preliminary injunction to the U.S. 7th Circuit, for strategic reasons we will instead push forward in U.S. District Court and vigorously oppose a permanent injunction. Hoosiers' frustration with the federal government's inability to enact and enforce immigration policies prompted the Legislature to turn the wheels of state government to respond to this issue -- and I remain committed to defending legislative enactments against outside challenges," Zoeller said.

Posted by Marcia Oddi on Tuesday, July 19, 2011
Posted to Indiana Government

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

In Dana Woods v. Commissioner of Ind. DOC (SD Ind., Magnus-Stinson), an 11-page opinion, Judge Bauer writes:

The plaintiffs are Indiana inmates who filed a class action lawsuit claiming that the Indiana Department of Corrections (“IDOC”) violated their First Amendment Rights by prohibiting them from (1) advertising for pen-pals and (2) receiving materials from websites and publications that allow persons to advertise for pen-pals. District Judge Jane E. Magnus-Stinson granted summary judgment in favor of the IDOC and the plaintiffs appealed. For the reasons set forth below, we find that the IDOC policy on pen-pals is constitutional and affirm. * * *

We close by noting that constitutional rights are not eradicated by one’s incarceration; the liberties enjoyed by the citizenry at large remain available to incarcerated individuals except to the extent that the exercise of such liberties is at odds with the objectives and administration of an effective prison system. Using pen-pal websites to engage in fraud is antithetical to the rehabilitative goals of confinement. Here, the IDOC reasonably perceived that continuing to allow inmates to use the sites would passively enable fraud. The regulation enacted to prevent it squarely addressed the threat and is therefore constitutional.

III. CONCLUSION. For the reasons set forth above, we find that the regulation in dispute is reasonably related to the legitimate penological objective of preventing inmate fraud. Since the plaintiffs have not managed to overcome the hefty burden of disproving the validity of the regulation in their analysis of the Turner factors, we AFFIRM.

Posted by Marcia Oddi on Tuesday, July 19, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 16 NFP)

For publication opinions today (5):

In Mark McCann v. The City of Anderson, Indiana, and the Hon. Donald R. Phillippe, an 8-page opinion, Judge May writes:

In order to determine if McCann was due the allotted salary, we must decide if he was an employee of the City Court and APD contemporaneously.

To determine whether there is an employer-employee relationship, we consider: “(1) right to discharge; (2) mode of payment; (3) supplying tools or equipment; (4) belief of the parties in the existence of an employer-employee relationship; (5) control over the means used in the results reached; (6) length of employment; and, (7) establishment of the work boundaries.” GKN Co. v. Magness, 744 N.E.2d 397, 402 (Ind. 2001). The most important factor is the right of the employer to exercise control over the employee. Id. at 403. On review of a summary judgment, we analyze these factors based on the facts most favorable to McCann, the non-moving party. See Dugan, 929 N.E.2d at 185 (reviewing court must analyze the trial court’s basis for judgment based on the facts most favorable to the non-movant). * * *

Thus, over all, four of the seven factors, including the most important, “Control over the Means Used,” indicate McCann was not an employee of the City Court. Because the City Court was not McCann’s employer, he cannot be due any “unpaid wages” from the City Court. Therefore, he cannot assert a claim against the City Court under the Indiana Wage Statute. See Ind. Code § 22-2-9-2 (instructing what should happen “[w]henever any employer separates any employee from the pay-roll”). Accordingly, we affirm.

In Douglas Cottingham v. State of Indiana , a 7-page opinion in a case where the Court notes the State did not file an appellee's brief, Judge May writes:
Cottingham was sentenced in 2009, and began serving his home detention at that time, which was before the effective date of the 2010 amendment to Ind. Code § 35-38-2.6-6. The trial court revoked his probation after the 2010 amendment became effective. Under the doctrine of amelioration, an offender who is sentenced after the effective date of a statute that provides for a more lenient sentence is entitled to be sentenced pursuant to the new statute, instead of the statute in effect at the time of the commission or conviction of the crime. Renfroe v. State, 743 N.E.2d 299, 300-01 (Ind. Ct. App. 2001). In Renfroe, we applied this doctrine to post-sentence education credit:
Although the doctrine of amelioration does not strictly apply in Renfroe’s case, which involves a post-sentence education credit as opposed to a substantive sentencing provision, the principle remains the same: Renfroe should not be subject to an ex post facto amendment to the statute that would effectively deprive him of credit time.
Id. at 301. Based on our holding in Renfroe, we apply the doctrine of amelioration to the issue of good time credit for Cottingham while he was on home detention. * * *

The trial court did not abuse its discretion when it ordered Cottingham to serve the remainder of his sentence because Cottingham violated his probation. However, we remand because Cottingham is entitled, pursuant to Ind. Code § 35-50-6-3, to good time credit for his time on home detention. Affirmed in part, remanded in part.

In Michael Sharp v. State of Indiana , a 12-page opinion, Judge Vaidik writes:
Michael Sharp was convicted of Class A felony child molesting and Class C felony child molesting. The trial court sentenced him to an aggregate term of forty years, found him to be a credit restricted felon, and assigned him to Class IV (one day of credit time for every six days served). Sharp now appeals arguing that his convictions violate Indiana double jeopardy principles. He also argues that the trial court abused its discretion in sentencing him and that his sentence is inappropriate in light of his credit restricted felon status. We find no double jeopardy violation and no abuse of discretion in sentencing. Finally, we conclude that a defendant’s credit restricted felon status cannot be taken into consideration on Indiana Appellate Rule 7(B) review. We therefore affirm.
In Shane A. Schmidt v. State of Indiana , a 9-page opinion, Judge May writes:
Shane Schmidt challenges his conviction of and sentence for Class C felony criminal confinement. Because there was sufficient evidence to support the conviction and he has not demonstrated his sentence is inappropriate, we affirm.
In Paternity of T.M.; B.M. v. S.K., a 7-page opinion, Judge Bradford writes:
Appellant-Respondent B.M. (“Father”) appeals following the trial court's denial of his motion to set aside paternity affidavit and for DNA testing regarding the paternity of his child, T.M. We affirm. * * *

For the first fourteen years of T.M.'s life, Father held himself out to be T.M.'s father, paid child support, provided health insurance at times, and exercised primary physical custody and parenting time for substantial periods of time.

In February 2009, when T.M. was finishing his eighth-grade year, T.M. began living with Father and Father's wife, V.D. According to V.D., T.M. did not share traits with Father, so V.D. purchased a DNA kit in September 2009. The kit, purchased from Walgreens,required that Father and T.M. take mouth swabs and mail them to Identigene in Salt Lake City, Utah, for testing. According to Father, he and T.M. submitted the required swabs to Identigene. Mother did not give her permission for T.M. to participate in this test. On December 1, 2009, Identigene issued its results by email informing Father that he was not T.M.'s biological father. * * *

Father challenges the trial court's denial of his petition to set aside his paternity affidavit and for DNA testing. There is no dispute that Father executed a paternity affidavit in 1995 claiming to be T.M.'s biological father. Once a man has executed a paternity affidavit in accordance with Indiana Code section 16-37-2-2.1, he is the child's legal father unless the affidavit is rescinded pursuant to the same statute. See Ind. Code § 31-14-7-3 (2009); see also J.M. v. M.A., No. 20S04-1012-CV-676, 2011 WL 2506465 , __ N.E.2d __, (Ind. June 23, 2011) (discussing rescission of paternity affidavits). Father filed his petition to rescind his paternity affidavit approximately fourteen years after he executed it. Indiana Code section 16-37-2-2.1(i) (2009) provides as follows for rescission of paternity affidavits more than sixty days after they are executed:

A paternity affidavit that is properly executed under this section may not be rescinded more than sixty (60) days after the paternity affidavit is executed unless a court:
(1) has determined that fraud, duress, or material mistake of fact existed in the execution of the paternity affidavit; and
(2) at the request of a man described in subsection (h), has ordered a genetic test, and the test indicates that the man is excluded as the father of the child.
These provisions reflect the legislature's intent to provide assistance to a man who signed a paternity affidavit due to fraud, duress, or material mistake of fact. In re Paternity of M.M., 889 N.E.2d 846, 847 (Ind. Ct. App. 2008). * * *

Here, Father's challenge is largely premised upon his assumption that the DNA results from Identigene were admissible and reliable. But the trial court concluded that they were not. The admissibility of evidence is a matter within the trial court's discretion, and will be reversed only upon a showing of abuse of discretion. Herrera v. State, 710 N.E.2d 931, 938 (Ind. Ct. App. 1999). The single DNA test came from a mail-in kit, the test specifically stated that it was not to be used for legal purposes, and there was no information from the purported laboratory where the tests were conducted, or the persons conducting those tests, establishing a foundation to support the reliability of their results. While Father cites multiple facts in his brief in support of the admissibility and reliability of such tests, he points to no place in the record where these facts were introduced before the trial court. We find no abuse of discretion in the trial court's refusal to admit the test results.

NFP civil opinions today (8):

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

Term. of Parent-Child Rel. of A.O. and C.O.; T.T. v. IDCS (NFP)

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

Paternity of A.A.; C.A., et al. v. J.B. (NFP)

Paternity of A.G.; J.B. v. H.G. (NFP)

John L. Katzioris v. Martin Service, Inc., et al. (NFP)

Aaron Isby v. D. Gilstrap, et al. (NFP)

Robert L. Clark, Jr., et al. v. Robert L. Clark, Sr. (NFP)

NFP criminal opinions today (8):

Billy Raines v. State of Indiana (NFP)

Richard Brooks v. State of Indiana (NFP)

Charles Farrell, III v. State of Indiana (NFP)

Victor Rybolt v. State of Indiana (NFP)

Randy Swisher v. State of Indiana (NFP)

Daurrel Figgs v. State of Indiana (NFP)

Eugene Lamar Robinson v. State of Indiana (NFP)

Alex Russell v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 19, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Software Designer Reports Error in Anthony Trial"

This story from the NY Times, reported by Lizette Alvarez, looks like it also could be titled "Prosecutors allegedly behaving badly." Some quotes:

MIAMI — Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.

The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said. * * *

Mr. Bradley, fearing that jurors were being given false information based on his data, contacted the police and the prosecution the weekend of June 25. He asked Sergeant Stenger about the discrepancy, and the sergeant said he was aware of it, Mr. Bradley said. He waited to see if prosecutors would correct the record. They did not.

Posted by Marcia Oddi on Tuesday, July 19, 2011
Posted to Courts in general

Sports Law - "NCAA social networking regulations provide challenge for MU compliance department"

From the Columbia Mo Missourian, a story dated July 16th by David Conway that begins:

COLUMBIA – Social networking websites like Facebook and Twitter have made student athletes more accessible than ever.

The 140-character limit on Twitter might not necessarily encourage a meaningful discourse, but things as simple as an athlete checking in while on vacation or a fan telling a recruit why he should commit to his favorite school can still make an impact.

Increasingly, that impact can be problematic. From players to coaches to fans, 140 characters is often all that's necessary to catch the watchful eye of the NCAA.

On July 21, the University of North Carolina received a Notice of Allegations from the NCAA detailing a litany of violations committed by their athletics programs. Among them was the failure to “adequately and consistently monitor social networking activity” by student athletes that should have caused the school to discover other violations sooner than they did.

The implication seen by many in the NCAA's ruling – that athletic departments should be going through the entirety of their student athletes' social networking pages for potential violations – is troublesome for officials like Mitzi Clayton, MU's assistant athletics director for compliance. Clayton said she views such rigorous monitoring as an unattainable goal.

The long story includes a link to the 42-page Notice of Allegations, in addition to a number of other interesting links.

Posted by Marcia Oddi on Tuesday, July 19, 2011
Posted to General Law Related

Ind. Gov't. - "State Sen. Tom Wyss wants Indiana’s attorney general to issue an opinion on the legality of the bill before Fort Wayne City Council that would ban city contractors from making political donations to city politicians."

That is the lede to this story today in the Fort Wayne Journal Gazette by Benjamin Lanka. More:

In a letter dated Thursday, Wyss, R-Fort Wayne, asks Attorney General Greg Zoeller for an opinion on the bill written by Councilwoman Liz Brown, R-at large, just a few days after a divided council voted to introduce the legislation for discussion.

After being contacted by Councilman Tom Didier, R-3rd, about the issue, Wyss said he did some initial investigations to the bill’s legality. He checked with Indiana’s Legislative Services Agency and the state election board, both of which told him the bill is not permitted under state law. The request for an attorney general opinion is intended to help his constituents avoid having to pay to defend a lawsuit if the bill is challenged, Wyss said.

“I don’t want to see taxpayers pay stupid tax money to defend a suit,” he said.

Bryan Corbin, spokesman for Zoeller, confirmed the office’s receipt of the letter but said the attorney general has not yet decided whether to offer a legal opinion on the subject.

He said the opinions are not binding but are given to assist state government clients in navigating their way through complex intergovernmental questions.

ILB: By "bill" I expect the reference is to a proposed ordinance before the City Council. Whether it is a proposed "bill" or "ordinance," however, I immediately recalled this quote from near the end a July 15th story about the pending Planned Parenthood and immigration suits arising from legislation passed by the last General Assembly:
Corbin said state legislators were not able to request legal advice on the measures they passed.

“Per a longstanding policy, the attorney general’s office does not issue formal legal advisory opinions to our clients about pending legislation during session,” Corbin said.

That aside, here is more from today's long story about the Fort Wayne proposal:
The bill has come under scrutiny since it was written. It would prohibit a company, company owner, company owner spouse, company subcontractor, subcontractor owner or subcontractor owner spouse from doing business with the city if that person made political donations to city candidates or elected officials during the previous year.

A company that violates the proposal would have the opportunity to have the contribution returned to avoid penalty. A company that does not remedy its violation is subject to having its contract canceled and being banned from any city contract for three years.

Opponents have argued that Brown’s bill not only has First Amendment problems but also violates state law that prohibits communities from enacting their own election or campaign finance laws.

FWJG reporter Lanka has a second, related story today -- some quotes:
In 2006, the Jeffersonville City Council approved an ordinance limiting how much city contractors could give to municipal candidates and elected officials. Unlike the Fort Wayne proposal, however, the law does not prohibit such political gifts.

Jeffersonville Councilman Keith Fetz, D-3rd, championed the proposal after noticing a number of no-bid contracts awarded to companies who made political contributions to the mayor at the time. * * *

The law broadly addresses many areas of ethics, but Section 2.14 deals with contributions to elected officials. It essentially limits contractors who have done business in the preceding four years or are seeking a city contract from donating more than $200 to a political candidate in a year.

The Fort Wayne bill would prohibit a company, company owner, company owner spouse, company subcontractor, subcontractor owner or subcontractor owner spouse from doing business with the city if that person made political donations to city candidates or elected officials in the previous year.

Larry Wilder, chief litigation counsel for Jeffersonville Mayor Tom Galligan, helped write the bill in 2006 when he also worked for the council. He said giving money to candidates is viewed as a form of free speech, so the city was careful not to ban political gifts outright. The council tried to determine what level of contribution would still be significant to a local race but could not finance it completely, he said.

In the city of nearly 45,000 people, Wilder said, council races can cost as little as $5,000 while mayoral candidates can spend up to $100,000. Fort Wayne’s mayoral race is expected to cost up to $1 million this year.

Wilder said he would be concerned the Fort Wayne law would be challenged because it prohibits all political donations by contractors.

Posted by Marcia Oddi on Tuesday, July 19, 2011
Posted to Indiana Government

Ind. Gov't. - "Commission looks to overhaul state theft laws: Indiana is the only state which doesn’t have monetary threshold in criminal code"

Updating this ILB entry from July 17, 2011, which ended by pointing to a philosophical debate evident from the remarks of the Commission members, Maureen Hayden of CNHI had an interesting story in yesterday's Jeffersonville News & Tribune. Some quotes:

INDIANAPOLIS — Some Indiana lawmakers tasked with rewriting the state’s criminal code got a glimpse of how difficult that task may be when they found themselves engaged in a philosophical argument over a stolen purse.

Prompted by concerns that low-level offenders who’ve committed property crimes are crowding Indiana’s prisons, the state’s Criminal Code Evaluation Commission met last week to talk about overhauling the current theft laws.

On the table was a proposal to set a monetary threshold for what would constitute a felony theft that carries prison time. According to the commission’s researchers, Indiana is the only state in the nation that has no threshold, meaning a prosecutor can charge a suspect with a felony theft, no matter how big or small the value of the item stolen.

The commission chairman, state Sen. Richard Bray, had hoped to find a simple resolution. As the Martinsville Republican noted at the meeting, “I think we can draw some distinction between Bernie Madoff and the kid who stole a pack of chewing gum.”

But it’s the thefts in between those two extremes that pose the problem, commission members learned.

State Sen. Randy Head, a former prosecutor from Logansport, raised questions about setting a threshold of $750 — a limit that had been proposed in a comprehensive sentencing-reform bill that failed to make it through the last legislative session.

Why, he wanted to know, should a thief who steals a purse with $749 in it be charged with a misdemeanor while a thief who steals a purse with $751 in it be charged with a felony?

That set off a discussion about crime and punishment and how much discretion prosecutors and judges should have when it comes to charging and sentencing offenders.

State Sen. Greg Taylor, a Democratic attorney from Indianapolis, argued for a clear, bright line with little discretion.

“Too much discretion leads to inconsistent sentencing,” Taylor said.

But State Sen. Greg Steuerwald, a Republican attorney from Avon, cautioned against setting an immovable line, saying it could take away prosecutors’ leverage to get defendants to plead guilty to lesser crimes that carry less prison time.

State Rep. Matt Pierce, a Democratic lawyer from Bloomington, said the conflicting views expressed at the meeting illustrated a larger issue:

“The question is, what is our criminal justice system about and how it is supposed to function?” he asked.

Bray’s response to the extended conversation appeared to be resigned exasperation. He’d been behind the plan for the commission to take up the issue of the state’s theft laws, hoping it would be the first step toward a more comprehensive plan to overhaul how Indiana sentences people who commit crimes.

“I started with theft because I thought it would be less contentious,” Bray said, before setting a date of July 27 for the commission’s next meeting.

Posted by Marcia Oddi on Tuesday, July 19, 2011
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending July 15, 2011

There was no transfer list issued for the week ending July 15, 2011.

Posted by Marcia Oddi on Tuesday, July 19, 2011
Posted to Indiana Transfer Lists

Ind. Gov't. - "Ordinance on predatory towing passed: Fees capped, other limits placed on companies after complaints of excesses"

Updating this May 18th ILB entry, Chris Sikich reports this morning in the Indianapolis Star:

The City-County Council on Monday approved an ordinance to crack down on what officials call predatory towing.

The new rules require city-approved parking signs and limit how far vehicles can be towed. They ensure that towing fees are capped at $150, that storage fees are capped at $30 per day, that towing companies accept cash and credit cards and provide detailed receipts, and that people can reclaim their vehicles 24 hours a day, seven days a week.

Companies violating those rules could have licenses suspended or revoked.

Posted by Marcia Oddi on Tuesday, July 19, 2011
Posted to Indiana Government

Courts - More on "Pennsylvania Homeowner and Indiana Golf Course Company File Class Action Lawsuit Alleging DuPont's New Herbicide Imprelis is Causing the Death of Trees Nationwide"

Updating yesterday's ILB entry, here is the 45-page complaint filed in Delaware federal district court on July 18, 2011.

Posted by Marcia Oddi on Tuesday, July 19, 2011
Posted to Courts in general

Law - "Where to watch Murdochs’ testimony to Parliament"

Jim Romenesko of Poytner.org has posted this guide.

C-Span's coverage has already begun, the Murdocks are scheduled for 9:15 am EDT.

Posted by Marcia Oddi on Tuesday, July 19, 2011
Posted to General Law Related

Ind. Courts - More on "In Debt Collecting, Location Matters"

If you couldn't access the $$$ WSJ story the ILB wrote about early yesterday on the Pike Twp. small claims court being a mecca for debt collection, try this link via Yahoo.

Posted by Marcia Oddi on Tuesday, July 19, 2011
Posted to Indiana Courts

Monday, July 18, 2011

Courts - "Pennsylvania Homeowner and Indiana Golf Course Company File Class Action Lawsuit Alleging DuPont's New Herbicide Imprelis is Causing the Death of Trees Nationwide"

According to the press release, suit was filed in Delaware federal court. From the release:

Jonathan Selbin of the national plaintiffs' law firm Lieff Cabraser Heimann & Bernstein, LLP, and Scott Starr of the Indiana law firm of Starr, Austen & Miller, LLP, announced that a Pennsylvania homeowner and an Indiana golf course company today filed a nationwide class action lawsuit against E.I. du Pont de Nemours & Company ("DuPont"), charging that DuPont's herbicide Imprelis is causing widespread death among trees and other non-targeted vegetation across the country. * * *

Plaintiff R.N. Thompson Golf, LLC, owns and manages several golf courses in the greater Indianapolis area, including the Winding Ridge Golf Course and the Ironwood Gold Course. "We have witnessed catastrophic tree loss around our golf courses after the application of Imprelis, and have received numerous complaints and inquiries about the tree damage and appearance of our courses from our customers," explained Mark Thompson, Chief Executive Officer of R.N. Thompson Golf, LLC. "We filed this lawsuit to inform other businesses and homeowners about this problem to let them know there is reason their trees are dying and to give them a course of action to fix the problem."

Posted by Marcia Oddi on Monday, July 18, 2011
Posted to Courts in general

Law - "WITH apologies to show business, there’s no business like the business of law school."

On Jan. 9, 2011 the NY Times had a lengthy article titled "Is Law School a Losing Game?"

This last weekend the NY Times had another story, this one by David Segal, and also very long, headed "Law School Economics: Ka-Ching!"

Posted by Marcia Oddi on Monday, July 18, 2011
Posted to General News

Ind. Decisions - Court of Appeals issues 4 today, including shoe camera case, (and 3 NFP)

For publication opinions today (4):

In BP Products North America, et al. v. Indiana Office of Utility Consumer Counselor, et al., a 9-page opinion on a motion for rehearing, Judge Sharpnack writes:

We grant rehearing to consider Appellee/Cross-Appellant Northern Indiana Public Service Company’s (“NIPSCO”) cross appeal, which raises the issue of whether the Indiana Utility Regulatory Commission (“IURC”) erred when it determined that Appellant/Cross-Appellee BP Products North America, Inc. (“BP”), was not a public utility with respect to the furnishing by it of natural gas it purchased from NIPSCO to Marsulex.

In our Opinion of April 25, 2011 (“Opinion”), we declared the cross appeal issue to be moot as a result of our resolution of the other issues on appeal. BP Prods. N. Am., Inc. v. Ind. Office of Util. Consumer Counselor, 947 N.E.2d 471, 473 n.1 (Ind. Ct. App. 2011). That was an incorrect conclusion. We should have considered the issue then, and we do so now. On this issue we reverse the IURC and remand. On all other issues we reaffirm our decision as set forth in the Opinion.

In David Delagrange v. State of Indiana, a 9-page, 2-1 opinion, Judge Sharpnack writes:
The parties stipulated to the following facts. On February 27, 2010, Delagrange went to a mall in Indianapolis. He had attached a camera to one of his shoes. The camera was connected to a digital recording device that stored the camera’s images. In addition, Delagrange had attached a fishing line to the inside of his front pants pocket and the cuff of one leg of his pants. Delagrange used the fishing line to pull up his pants leg and expose the camera to take pictures.

At the mall, Delagrange approached several young women who were working or shopping in various stores. Three of the young women were seventeen years of age, and one was fifteen. All four of them were wearing skirts or dresses. Delagrange attempted to surreptitiously place his foot between their legs to take pictures under their skirts or dresses. After several of these encounters, Delagrange was arrested at the mall for resisting law enforcement. A review of his camera recordings revealed photographs of areas under some of the young women’s skirts and dresses.

The State charged Delagrange with four counts of attempted child exploitation, all Class C felonies, Indiana Code sections 35-41-5-1 (1977) and 35-42-4-4(b) (2007); ten counts of voyeurism, all Class D felonies, Indiana Code section 35-45-4-5 (2005); and resisting law enforcement, a Class A misdemeanor, Indiana Code section 35-44-3-3 (2006). Delagrange filed a motion to dismiss the voyeurism and attempted child exploitation charges. The trial court held a hearing on the motion, and the parties submitted a joint stipulation of facts. The trial court dismissed the voyeurism charges but declined to dismiss the four counts of attempted child exploitation. Subsequently, Delagrange sought and obtained permission from the trial court and this Court to pursue this interlocutory appeal of the the trial court’s decision. * * *

The State has alleged that Delagrange knowingly or intentionally attempted to create an image of sexual conduct, which is a sufficient statement of Delagrange’s mental state to survive a motion to dismiss. At trial, the State will bear the burden of proving that Delagrange possessed the culpable mental state, but the State does not need to meet that burden of proof at this stage. See Isaacs, 794 N.E.2d at 1123 (concluding that the defendant “was not entitled to dismissal of the charging information on the basis that he purportedly had a valid factual defense to the charges”).

CONCLUSION For the reasons stated above, we affirm the judgment of the trial court and remand for further proceedings. Affirmed and remanded.

CRONE, J., concurs.
BAKER, J., dissents with opinion.

I respectfully dissent and part ways with the majority’s decision to affirm the denial of Delagrange’s motion to dismiss the charges of attempted child exploitation. As the majority acknowledges, Indiana Code section 35-34-1-4(a) provides that the trial court may dismiss the charging information if “[t]he facts stated do not constitute an offense.”

In my view, Delagrange’s activity at the mall does not satisfy the definition of “sexual conduct” as set forth in Indiana Code section 35-42-4-4. Indeed, nothing that Delagrange did that day could be reasonably considered to have involved the “exhibition of the uncovered genitals intended to satisfy or arouse the sexual desire of any person,” as the statute requires.

The State alleged that Delagrange walked around the mall and tried to take photographs or videos underneath the dresses or skirts of adults and teenagers. Such “up-skirt” photographs may, indeed, be morally unacceptable and alarming to many. Moreover, Delagrange’s conduct, as noted by defense counsel, may be labeled “weird, odd, or uncommon,” at the very least. However, I do not believe that Delagrange’s actions amounted to the criminal offense of attempted child exploitation under the current version of Indiana Code sections 35-41-5-1 and -42-4-4(b). See Herron v. State, 729 N.E.2d 1008, 1011 (Ind. Ct. App. 2010) (observing that conduct, however, reprehensible, is not a crime unless the General Assembly has exercised its authority to define it as such). As a result, I vote to reverse the trial court’s denial of Delagrange’s motion to dismiss the charges of attempted child exploitation.

ILB: For more on this shoe camera case, start with this ILB entry from June 27, 2010.

In Donald Troutner v. State of Indiana, an 18-page opinion, Judge Najam writes:

Troutner raises two issues for our review, namely: 1. Whether the same evidence that the State used to support Troutner's conviction for robbery was also used to support his conviction for battery. 2. Whether the trial court abused its discretion when it limited the testimony of Troutner's niece.

We hold that the State presented the same evidence to support both of Troutner's convictions and, therefore, we vacate the lesser conviction for battery. We also hold that the trial court erred when it limited the testimony of Troutner's niece. Nonetheless, because that error was harmless, we affirm Troutner's conviction for robbery.

In Nathan D. Hawkins v. State of Indiana , a 12-page, 2-1 opinion (including a 5-page dissent), Judge Crone writes:
Nathan Hawkins was originally sentenced to sixteen years for two counts of child molesting. After a successful appeal, Hawkins’s sentence was reduced to ten years. Thereafter, Hawkins sought a sentence modification, which the prosecutor opposed and the trial court denied. The parties dispute whether the 365-day period during which the trial court has sole discretion to grant a modification began when Hawkins was originally sentenced or when he was resentenced. We conclude that the resentencing did not restart the 365-day period. Because Hawkins’s motion was filed outside the 365-day period and the prosecutor did not consent to a modification, the trial court properly denied the modification. Affirmed. * * *

NAJAM, J., concurs.
ROBB, C.J., dissents with separate opinion. [which begins, at p. 8] I respectfully dissent from my colleagues’ conclusion that Hawkins’s petition for sentence modification was untimely. The legislature has not spoken clearly on this issue, namely, whether the 365-day period within which the trial court has sole discretion to grant a modification restarts after a defendant is resentenced. The statute needs legislative clarification on this point. While the majority conceives one approach, I write to explain my view that under the statute as currently written, the 365-day clock did, in fact, restart when Hawkins was resentenced pursuant to our Appellate Rule 7(B) revision. I also dissent because the majority’s approach to the respective timing of sentence modifications by trial courts on the one hand, and appellate review of sentences on the other, raises substantial problems of unworkability. Statutes must be read in harmony and produce a workable solution.

NFP civil opinions today (1):

Donald Glorioso v. Carla Glorioso (NFP)

NFP criminal opinions today (2):

Gregory D. Harris v. State of Indiana (NFP)

Vincent B. Hunter, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, July 18, 2011
Posted to Ind. App.Ct. Decisions

Law - "Many Motorists Enraged by Camera-Issued Tickets"

Updating a long list of earlier ILB entries on red light cameras (beginning with this one from Jan. 18, 2011), Joe Sharkey of the NY Times had this entertaining column on July 11, 2011. A sample:

Let me hasten to report that I have no leads on this and that I certainly didn’t suggest any illegal action in my column last Tuesday about the spread of traffic cameras, whether speed cameras on the highway or red-light cameras at intersections. I merely asked readers to share their observations. Did I get an earful or, rather, an inbox full.

I heard from about 500 people, and the responses ran about 50 to 1 against the cameras, which supporters and the industry that markets them say enhance road safety, but critics call just a gimmick to raise money.

Among those I’m hearing from are business travelers who received camera-generated tickets in the mail from places they drove through months earlier. Most business travelers pay them because they can’t reasonably return to the place to fight the ticket. Some complained that they have no choice, as car rental companies routinely pay a camera ticket and subsequently charge the customer’s credit card.

I’ve heard from long-haul truckers worried about their drivers’ licenses, and from traffic engineers and police officers disputing camera industry claims about safety.

Many readers also note the documented increase in rear-end collisions at intersections where the fear of being flashed by a red-light camera can cause drivers to slam on brakes at the first sign of lights turning yellow.

Some people sent videos showing how yellow light timing seems to be shortened at some intersections to catch more drivers. Others pointed out that red-light cameras also routinely issue citations to drivers who are prudently making turns in intersections when the light suddenly changes.

Here is Sharkey's July 4th column that occasioned the responses.

Posted by Marcia Oddi on Monday, July 18, 2011
Posted to General Law Related

Courts - "Ohio voters to decide issue of judges’ age"

By Indiana statute, appellate court judges must retire at age 75. Until this year's legislative session, many trial court judges in Indiana had to be less than 70 at the time they took office. See this long and informative ILB entry from Feb. 9, 2011 for details.

As noted in this April 29, 2011 entry, the law has now been changed and there is now no mandatory retirement age for Indiana Circuit and Superior Court judges.

Re Ohio, this April 13, 2011 story from the Columbus Dispatch reported that the Ohio General Assembly was considering a constitutional amendment that "would allow judges to run for election through age 75, up from the current limit of 70." It would apply to all Ohio judges, both trial and appellate. From the story:

The Ohio Prosecuting Attorneys Association is opposed to increasing the age limit, arguing it has improved judicial quality in Ohio. Executive Director John Murphy said just because life expectancy has increased, that does not mean the mental acuity of a 75-year-old person has improved.
Today Jim Provance, the Toledo Blade Columbus bureau chief, has this long story, headed "Ohio voters to decide issue of judges’ age: Retirement at 75, not 70, on Nov. 8 ballot." There is a lot that is interesting in the story. Some quotes:
With Ohioans living longer productive lives, voters will be asked this fall whether it's time to change a 38-year-old provision of the state Constitution that prohibits a judge from taking office after reaching the age of 70.

The question proposes a new age limit of 75.

"Certainly, people are capable of being effective judges after 70," said Judge McDonald, who will turn 70 in 2013. He emphasized that he's made no decision about running again when his term expires in 2014, should the ballot issue pass.

"My perspective is that, maybe when the law was written, 70 was a reasonable time," he said. "But now, with an aging population and medical advances, a lot of people are being effective after 70. Visiting judges are still able to judge."

Judge McDonald can complete his current term but can't run again.

"Why should there be [a mandatory retirement] age at all?" he asked. "It should be like the federal courts. Leave it up to the individual judge or voters. I know judges who retire in their 50s or 60s. Some are still going strong in their 70s. Seventy is kind of arbitrary. Seventy-five is kind of arbitrary."

Sixth District Court of Appeals Judge Peter Handwork, who will turn 70 in December, said he would run again in 2012 if voters allowed him to do so.

"The fact that this is being examined by the legislature and has now made it to the ballot is an indication that many people think this is necessary," he said. "I have no reason to disagree. People are living longer, are more active, and staying interested in things. You shouldn't say that just because someone reaches a particular age that they're no longer qualified."

But he also knows that means prosecutors and other lawyers who have been waiting in the wings for older judges to step aside so that they can get their turns at the bench may have to wait longer.

"They'll get their opportunity," he said. "By the way, they could run against me."

Judge Handwork has not had an election opponent since he first ran for the appellate court in 1982.

Judges are the only elected officials in Ohio who face age limits. Federal judges have no such limits. [ILB: Federal judges, of course, are appointed, not elected - see this entry.]

According to the state Supreme Court, the average age of Ohio's 717 sitting judges, from the high court bench to municipal courts, is 56. There are 275 who are 60 or older, and, of them, 22 are over 70 and cannot seek re-election.

A voice of dissent

The Ohio Prosecuting Attorneys Association has been a rare voice of dissent on the issue.

"We're a little concerned about elderly judges on the bench," spokesman John Murphy said. "Current law could permit a judge to serve up to age 75 or so. The current limit has worked well."

Depending on how close he or she is to the age of 70 when elected, a sitting judge could serve as late as age 75 under current constitutional language before being required to leave the bench.

Under the proposed language, that day of reckoning could be delayed as late as age 80.

The Supreme Court has routinely assigned visiting judges to courts on a temporary basis after age has forced them from the bench.

The prosecutors association doesn't buy the argument that there are effective systems in place to remove judges who may have stayed too long beyond their prime.

"People are reluctant to raise this issue with judges," Mr. Murphy said. "The people who are most likely to know are the lawyers who are practicing in that courtroom, and they're extremely reluctant to raise the issue."

Posted by Marcia Oddi on Monday, July 18, 2011
Posted to Courts in general | Indiana Courts

Ind. Courts - "In Debt Collecting, Location Matters"

That is the headline of a $$$ lengthy WSJ story today by Jessica Silver-Greenberg. The dateline is Marion County Indiana. It begins:

For U.S. consumers with too many bills and not enough money, the end of the line is often a small-claims court like the one here in Pike Township.

Judge A. Douglas Stephens, who presides over all the township's small-claims cases, calls himself a "Renaissance redneck" and wears a small gun strapped to his ankle while on the bench. He says he has little patience for the "feeble protests" of people who try to dodge their financial obligations. * * *

As companies and debt collectors try to collect on overdue bills that piled up during the financial crisis, the recession and their aftermath, they are borrowing a tactic from plaintiffs' lawyers: They shop around for the best places to bring their claims. Debt collectors aren't so much worried about whether a court will rule that the debtor owes the money—most cases are fairly clear-cut on that point—but about how aggressively collectors can pursue a debtor's assets.

Further into the must-read story:
Parts of Indiana are particularly unusual. Although the state requires suits to be filed in the county where the borrower lives, in Marion County and one other county, collectors can choose among township courts—each with a single judge. The courts handle all collection disputes involving up to $6,000.

"We lawyers call it forum-shopping," says Richard Gonon, a lawyer for Accounts Recovery Bureau Inc., a Reading, Pa., medical debt-collection firm that has filed cases in Marion County.

Posted by Marcia Oddi on Monday, July 18, 2011
Posted to Indiana Courts

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

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

From Sunday, July 17th, 2011:

From Saturday, July 16th, 2011:

From Friday afternoon, July 15th, 2011:

Posted by Marcia Oddi on Monday, July 18, 2011
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/18/11):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 7/25/11):

  • No oral arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 7/18/11):

Monday, July 18th

  • 11:00 AM [Moved to Aug. 16, 2011] - Shawnee Construction & Engineering v. Don C. Stanley, Jr. (02A04-1010-CT-610)

  • 1:00 PM - Thomas Kornelik v. Mittal Steel USA, Inc., et al (45A03-1011-CT-583) - May an employee that settles with a third party, without the consent of the employer/compensation insurance carrier, subsequently seek to reduce its lien arising under the Worker's Compensation Act. The Scheduled Panel Members are: Judges Baker, May, and, Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]

  • 2:00 PM - Joseph A. Kelley, et al, vs. Jagdish Patel, et al (79A02-1010-CT-1212) - After the death of William D. Feit, Jr. as a result of a motel fire, Joseph A. Kelley, the administrator of Feit's estate (the "Estate") filed suit against the motel's owners and the motel's liability insurer, Indiana Insurance Company. The Estate appeals the trial court's entry of summary judgment in favor of Indiana Insurance on the Estate's claim of spoliation of evidence. On appeal, the Estate raises the issue of whether it has an available third-party cause of action against Indiana Insurance for spoliation of evidence. The Scheduled Panel Members are: Chief Judge Robb, Judges Bailey, and, Crone. [Where: Court of Appeals Courtroom (WEBCAST)]

Tuesday, July 19th

  • 10:30 AM - John Fiederlein, M.D., vs. Alex Boutselis, M.D. and Steve Jones, M.D. (79A04-1010-PL-632 ) - John Fiederlein, M.D. filed a complaint against Alex Boutselis, M.D. and Steve Jones, M.D. alleging breach of contract, promissory estoppel, unjust enrichment, conversion, criminal conversion, interference with employment relationship, and fraud. The dispute arises in regard to an offer for Fiederlein to become a member in the medical practice where the parties were employed and which was owned by Unity Healthcare, LLC. Boutselis and Jones filed a counterclaim, requesting a refund of money they claimed was an advance paid in anticipation of Fiederlein's membership, which was never consummated. Fiederlein appeals the trial court's grant of summary judgment in favor of Boutselis and Jones as to all of Fiederlein's claims, except a portion of his unjust enrichment claim. He also appeals the trial court's denial of his motion for summary judgment on the counterclaim of Boutselis and Jones. Boutselis and Jones cross-appeal the trial court's failure to grant summary judgment in their favor as to all of Fiederlein's claims. The Scheduled Panel Members are: Judges Kirsch, Vaidik,and, Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 7/25/11):

Next Tuesday, July 26th

  • 2:30 PM - Kerwin Masten and Heather Masten, vs. AMCO Insurance Company (49A02-1009-CT-998) - Kerwin Masten was injured in a four-car accident. He and his wife settled their claim with one of the drivers, Alice Derin Hanson, and sought compensation for their remaining damages pursuant to the underinsured motorist endorsement in the Mastens' insurance policy with AMCO Insurance Co. AMCO sought summary judgment, alleging that the Mastens' settlement with Hanson constituted a full set-off of its liability. The trial court granted summary judgment in favor of AMCO, and the Mastens now appeal, arguing that compensation from Hanson cannot set-off AMCO's liability because Hanson was not an underinsured driver. The Scheduled Panel Members are: Chief Judge Robb, Judges Riley and Barnes. [Where: Supreme Court Courtroom (WEBCAST)]

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, July 18, 2011
Posted to Upcoming Oral Arguments

Sunday, July 17, 2011

Law - "Ohio state rep caught driving drunk with stripper quits legislature"

Actually, there is even more than the headline indicates to this story by Darrel Rowland in the Columbus Dispatch.

Posted by Marcia Oddi on Sunday, July 17, 2011
Posted to General Law Related

Ind. Gov't. - "Study committees tackling two issues state must resolve"

From an editorial today in the Madison Courier:

Indiana General Assembly summer study committees are reviewing two issues the state needs to resolve.

The first is prison sentencing reform. A bill calling for major reforms that would save millions and reduce prison crowding by making greater use of alternative sentencing failed to gain much momentum last term. Many county prosecutors argued that reforms would equate to being soft on crime.

The second issue involves marijuana laws. State Sen. Karen Tallian, D- Portage, who introduced the bill creating the study committee, says most of the 2,000 responses she has received from constituents have been responsive to the idea of treating marijuana more like alcohol. The response from law enforcement has been mixed.

Before anyone jumps ahead, Tallian is not suggesting marijuana be legalized.

"One day, I watched three young kids plead cases on possession of small amounts," Tallian told the Gary Post-Tribune. "I thought, 'Why are we spending all of the time and money to do this?' Frankly, I put marijuana in the same category as alcohol."

The Criminal Law and Sentencing Policy Study Committee will look at the effects of marijuana on the criminal justice system, whether penalties should be adjusted for certain amounts, whether the state should have a medical marijuana program and whether it should be regulated like alcohol.

On prison reform, the General Assembly is trying a new approach - two different committees will discuss separate aspects of the change proposals. One committee will tackle theft and drug sentences. The other will take on sex-related sentences and may also work on drug proposals.

Indiana's prisons are near capacity, so the dual goal is to save money and have more sensible sentencing - making sure the worst criminals get the severe punishments they deserve, without clogging prisons up with low-level offenders. Even if legislators can be convinced of the need for changes, winning over the prosecutors will remain a formidable challenge.

Times have changed. The General Assembly needs to figure out how to stay tough on crime while acknowledging that the cost of legal proceedings and incarceration is breaking the budget.

Also today, Scott Smith of the Kokomo Tribune writes in a long story:
The number of people in the Indiana DOC system for a class-D felony — the lowest on Indiana’s four-tier scale of felonies — grew by 31 percent between 2005 and 2010, according to DOC statistics. That growth far outpaced the prison population as a whole, which grew by 6.8 percent in the same period.

The overcrowding problem was thrust into the spotlight late last year, when Indiana Gov. Mitch Daniels backed a study that claimed that if nothing was done to change Indiana’s criminal justice system, the state would end up spending an additional $1.2 billion over the next seven years to build and operate new prisons.

“There’s no question [overcrowding is] driving the discussion,” said Larry Landis, director of the Indiana Public Defender’s Council. “It was the intersection of the recession and prison overcrowding, and realizing we cannot build our way out of it, because if we do, we’re going to start to impact education and other services.”

Wednesday, the Indiana Senate’s Criminal Code Evaluation Commission got down to the sticky details of proposing changes to state laws.

Specifically, the commission was set to look at Indiana’s lack of a misdemeanor theft charge, something that makes Indiana unique among the states.

Indiana has a misdemeanor conversion statute, which was supposed to serve that function, but former U.S. Attorney Deborah Daniels, who is heading a committee of attorneys charged with providing data for the commission, said prosecutors rarely use it.

Commission members appeared to agree that the main reason prosecutors appear to prefer charging individuals with theft — which is a class-D felony for anything under $100,000 — is because it is easier to obtain a conviction when a felony charge is hanging over someone’s head.

Whether it is fair to charge a first-time offender with a felony for stealing something of small value was where the disagreement started.

“I think we’ve learned that discretion [for prosecutors] leads to unfair sentences, and if we allow it to continue, we’ll see the same inconsistencies,” said State Sen. Greg Taylor, D-Indianapolis.

State Sen. Randy Head, R-Logansport, said prosecutors often agree to drop the felony theft charge down to a misdemeanor conversion charge if the defendant makes full restitution.

“If we take that away, it’s going to be harder to get restitution,” Head said.

After 90 minutes, it was clear the philosophical debate about providing charging discretion to prosecutors might be a much bigger factor in the commission’s deliberations than prison overcrowding.

Reading the whole story, the outlook for a resolution of sentencing issues this session does not yet look very promising.

Maureen Hayden of CNHI Indiana newspapers had an interesting related story in the Terre Haute Trib-Star on July 16th, headed "Legislator finds some support for taking the crime out of pot."

Posted by Marcia Oddi on Sunday, July 17, 2011
Posted to Indiana Government

Environment - "Endangered Indiana beaches"

Some of you may remember the beginnings of a nationwide push for clean water, one that was spurred on in 1969 when Cleveland's Cuyahoga River, which emptied into Lake Erie, erupted in flames. From Wikipedia:

Lake Erie infamously became very polluted in the 1960s and 1970s as a result of the quantity of heavy industry situated in cities on its shores, with reports of "bacteria-laden beaches" and "fish contaminated by industrial waste." In the 1970s, patches of the lake were "declared dead" because of industrial waste as well as sewage from runoffs; as New York Times reporter Denny Lee wrote in 2004, "The lake, after all, is where the Rust Belt meets the water."
Much has improved since the fire. But one wonders if we are on a fifty-year cycle with the Great Lakes. Earlier this month the ILB had two entries headed "'Dr. Beach' picks top 5 Great Lakes beaches; Indiana Dunes not mentioned." The second referenced a story on The Lake's water quality declining.

Today the Fort Wayne Journal Gazette has an editorial, headed "Endangered Indiana beaches," that concludes:

For nearly two decades Florida International University professor Stephen Leatherman – aka Dr. Beach – has released a list of the nation’s top 10 coastal beaches. This year he picked the Top 5 Great Lakes Beaches. Indiana Dunes did not make Dr. Beach’s Top 5, likely because he disqualifies any beach that’s frequently closed for e-coli contamination.

On Wednesday, the [National Environmental] Defense Council, along with the Rocky Mountain Climate Organization, released a separate report detailing the damage climate change is wreaking on the five Great Lakes national parks, including Indiana Dunes.

According to the report, climate change is causing more frequent severe weather, less ice cover, increased water temperatures, erosion and loss of wildlife diversity.

The last decade was the hottest decade, and temperatures at Indiana Dunes were 1.6 degrees hotter than the 20th century average.

Warmer temperatures contribute to lower lake levels, the spread of invasive species and declining wildlife.

Indiana Dunes – boasts of more than 1,100 flowering plant varieties and the greatest biological diversity of any Great Lakes park – is especially at risk. The Dunes are already reporting a population decline of the endangered Karner blue butterfly. The butterflies depend on snow cover to survive winter. The report also projects an imminent kudzu invasion.

Hotter temperatures also increase ground-level ozone, an air pollutant that can irritate the respiratory system. The Indiana Dunes area already exceeds federal air quality standards for ozone.

The Dunes brought in more than $54 million in 2009. The studies should prompt residents in the Great Lakes states to demand greater protections of this important resource. The Great Lakes are not only a nearby source of recreation they also are the largest source of drinking water in the world.

More here from a story July 13th in the Minneapolis Star-Tribune, and this one from July 13th by Kathleen Quilligan of the NWI Times, that begins:
By the end of the 21st century, summers at the Indiana Dunes National Lakeshore could be as hot as recent summers in Gainesville, Fla., according to a report released Wednesday by several environmental groups.
For the report, "Great Lakes National Parks in Peril," check here.

Posted by Marcia Oddi on Sunday, July 17, 2011
Posted to Environment

Courts - "Feds, states in dispute over court interpreters;" and more from Indiana

Dave Collins of the AP has this very long story today. Here are some quotes:

HARTFORD, Conn. (AP) — Annie Ling understood little of what was being said in a Georgia courtroom where she was put on trial, convicted by a jury and sentenced to 10 years in prison for abusing her two young children. * * *

Cases like Ling's, which continue to play out across the country, have prompted the U.S. Justice Department to warn officials in all states that they're violating the Civil Rights Act of 1964 if they're not providing interpreters, free of charge, in all court-related proceedings and programs. But top state court officials are disputing the department's interpretation of civil rights laws, saying it goes too far and would require a large expansion of interpreter services that cash-strapped states can't afford. * * *

[Assistant U.S. Attorney General Thomas Perez, head of the Justice Department's Civil Rights Division,] launched an effort last year to get states to fully comply with interpreter requirements. In a letter to top judiciary officials in all the states, he wrote that civil rights laws require state courts receiving federal funding to provide interpreters free of charge to people with limited English proficiency regardless of their ability to pay. He also told state officials that they have to provide free interpreters not only in criminal cases, but in all judicial proceedings and programs, ranging from civil cases to probation and parole offices to anger management classes.

State judicial officials don't dispute the right of people to interpreters in the courtroom, but they take issue with claims that states must provide free interpreters in civil court cases and non-courtroom settings. They also say the Justice Department's official 2002 guidance on adhering to Title VI requires states only to "take reasonable steps" to ensure meaningful access to judicial programs by people with limited English proficiency.

The leaders of two groups that represent top state judiciary officials nationwide — the Conference of Chief Justices and the Conference of State Court Administrators — expressed their concerns to Attorney General Eric Holder earlier this month about Perez's letter. They also told the president of the American Bar Association that they oppose the ABA's proposed court interpreter standards, which mirror the Justice Department requirements and will be presented for approval at the group's annual meeting in Toronto next month.

The leaders of the groups, Texas Supreme Court Chief Justice Wallace B. Jefferson and Lilia Judson, executive director of Indiana's Division of State Court Administration, say eliminating language barriers has been a high priority for state judicial officials for years. They say states have been making good progress in improving access to the courts, including creating credentialing programs for interpreters.

"At the very time the standards propose absolute access to interpreters — both in and out of court — state courts are furloughing staff, shuttering courthouses, and sometimes requiring litigants to bring their own paper for copies, Jefferson and Judson wrote to ABA president Stephen Zack. "Absent significant increases in resources, the state courts cannot meet the more far-reaching standards without cannibalizing other critical programs in such areas as domestic violence, juvenile justice, information technology, and problem-solving courts, to name a few."

There is much more to today's story.

But this is not the first time the ILB has posted on this issue. See this long ILB entry from two years ago, July 7, 2009, headed "People Forced to Appear in Court Without Interpreters, Violating Federal Law," that linked to a warning the Indiana Courts had received from the DOJ.

Posted by Marcia Oddi on Sunday, July 17, 2011
Posted to Courts in general | Indiana Courts

Law - Still more on: NPR investigation of ALEC, "the birthplace of a thousand pieces of legislation introduced in statehouses across the county"

This July 15th ILB entry ended:

And here is the press release from Common Cause, headed "ALEC Bills Expose Corporate Drive to Advance Business Over Public Interest." It begins:
Today’s release of more than 800 “model” bills and resolutions drafted and promoted by the American Legislative Exchange Council (ALEC) opens a window to the workings of a powerful and secretive corporate front group that has enlisted thousands of state lawmakers to pass legislation on its behalf, often in conflict with the public good, Common Cause said today.
The ILB is trying to locate the list of 800 bills.
The ILB has now located the 800 model bills (see here) and has looked at several of them for explanations of how/why they are "in conflict with the public good." The results are interesting.

One is the "Responsible Scrap Metal Purchasing and Procurement Act." This is the first one I looked at and it caught my eye because the subject has been of interest in Indiana. Here is some of the rationale that ALEC gives for the proposal:

Because of the increased market value in scrap metal, an increased number of thefts associated with metal goods are being reported throughout the country. From gas, plumbing and electrical lines used in new and rehabilitation home and industrial construction to selected private property of businesses to a vast array of government property such as municipal manhole covers, street signs, and utility polls to critical infrastructure utilized to provide communications services necessary to the health and safety of the public — metal theft is a growing problem for both the public and private sectors. Scrap metal thefts have not only created safety issues but they have also impacted local government budgets.
So what is the ALEXexposed.org objection?
This bill would regulate the scrap metal industry by requiring purchasers keep detailed records of all sellers. While scrap metal theft may be a problem, this bill may affect unemployed and impoverished people as well as undocumented workers who earn money collecting scrap metal legitimately. * * * Additionally, it appears to make scrap businesses' records open to warantless demands by law enforcement.
Hmmm.

This one, the "State Regulatory Responsibility Act," has a ring of familiarity to it. Many similar proposals, arguing against application of federal environmental requirements at the state level, have been the subject of Indiana legislation. Whether these bills are "in direct conflict with the public good" would seem to be a public policy question without a clear black or white / right or wrong answer.

Posted by Marcia Oddi on Sunday, July 17, 2011
Posted to General Law Related

Ind. Gov't. - "When citizens rail against the evils of big government, the work of prosecutors should be thrown into the mix."

That is a quote from an op-ed in today's Sunday Indianapolis Star, written by IU-Indy Law Prof Joel Schumm, which continues:

The enormous power and discretion of prosecutors allow -- indeed, demand -- they not pursue charges in every conceivable case.
The article cites the examples of Rush County high school senior Tyell Morton (earlier ILB entries), and Brenda Moore (earlier ILB entries), the Marion County woman who was the passenger in a vehicle pulled over for a broken plate light.

ILB: Another case that might have been cited would be that of Bei Bei Shuai, the focus of an IndyStar oped last week.

Posted by Marcia Oddi on Sunday, July 17, 2011
Posted to Indiana Government

Saturday, July 16, 2011

Ind. Courts - More on: AG sues LaGrange County Clerk

Updating this July 13th ILB entry that quoted a long press release from Attorney General Zoeller, here is a long, detailed story, also from July 13th, by Sheila Selman of The Goshen News. Some quotes:

LaGrange County Clerk Beverly Elliott is facing four Class D felony counts of official misconduct. She is also being asked to return close to $10,000 in county money and pay more than $8,000 in costs incurred during an audit by the Indiana State Board of Accounts.

In addition, State Attorney General Greg Zoeller announced Tuesday afternoon he has filed a lawsuit against Elliott seeking triple the amount in damages — $55,160. He is also seeking an injunction freezing all of her assets.

On Monday, Sheriff Terry Martin served a summons to Elliott, who is also president of the Association of Clerks of Circuit Courts of Indiana and recently received an excellence award from the group. The summons is requiring her to appear in LaGrange County Superior Court Aug. 1 for an initial hearing on the four charges.

The summons is not a warrant for arrest and Elliott was not arrested. * * *

The lawsuit Zoeller’s office filed on Tuesday seeks triple damages, attorneys’ fees, costs and interest. If the court enters a civil judgment against the defendant, then the state can pursue a collections action like any creditor seeking to collect from a debtor.

Simultaneously, the Attorney General on Tuesday also filed a motion seeking a preliminary injunction.

According to Zoeller’s statement, the injunction asks the court to freeze Elliott’s assets to prevent her from selling, transferring, or dissipating any financial assets — including real estate at 1400 N. 200 East in LaGrange, a 2003 Oldsmobile Silhouette, a 2003 Ford Taurus, bank accounts, pensions or retirement accounts.

A hearing on the motion for preliminary injunction is scheduled for 11 a.m. Friday in LaGrange Superior Court 1 before Senior Judge Walter Palmer.

The Attorney General’s lawsuit also names Auto-Owners Insurance Co. of Indianapolis as a defendant. The county clerk was covered by a $60,000 surety bond, and the lawsuit seeks to redeem the bond to reimburse the amount owed, similar to filing a claim on an insurance policy.

While the Attorney General’s Office has legal jurisdiction to file civil suits to recover public funds, county prosecutors have legal jurisdiction to decide whether to file criminal charges in such instances.

However, the case took a turn Friday when, as reported by Matt Getts of the KPC News:
LAGRANGE — A judge lifted a temporary restraining order and denied the state of Indiana’s request to freeze the assets of LaGrange County Clerk Beverly Elliott during a hearing Friday morning in LaGrange Superior Court.

Posted by Marcia Oddi on Saturday, July 16, 2011
Posted to Indiana Courts

Ind. Gov't. - Still more on "Curry raises questions by dropping OmniSource charges"

Updating this ILB entry from yesterday, which linked to Cory Schouten's story in the IBJ headed "Attorneys to get big cut of $300K OmniSource settlement," that I referred to as a "Wow!" story...

What made me say "Wow"? This quote from near the end of the long story:

Curry said he decided against investing the resources in pursuing the charges that at most would result in a fine of $10,000 per count and no jail time for anyone. The seized cash will be returned to OmniSource, which will then make its $300,000 contribution.
Looks like a pure "for-profit law enforcement" calculation -- part of the asset forfeiture equation permitted by current law.

Posted by Marcia Oddi on Saturday, July 16, 2011
Posted to Indiana Government

Friday, July 15, 2011

Ind. Gov't. - More on: "Legal challenges can cost taxpayers: Suits involving Medicaid, immigration have been filed"

Referencing this story from earlier today, a reader commented:

This afternoon I noticed the article concerning some pending lawsuits possibly affecting the taxpayers of Indiana, suits filed by Indiana’s ACLU office. I was quite surprised, if not astonished, to see that the attorney representing ACLU charges $400 hourly. I had supposed that ACLU attorneys were paid in a fashion much like prosecutors, i.e., from some governing body or entity. I believe the annual salary of a full-time prosecutor in Indiana equates to something less than $70 hourly.
To respond, I contacted Gavin Rose at the Indiana ACLU, who was kind enough to provide the following info:
Marcia,

In Blum v. Stenson, 465 U.S. 886 (1984), the Court held that “Congress [in passing 42 U.S.C. s. 1988] did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization” and that “‘reasonable fees’ under s. 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.” Id. at 895.

Thus, when the ACLU of Indiana prevails in litigation, when there is an applicable fee-shifting statute we are entitled to compensation at the market rate charged by area attorneys with similar levels of skill and experience.

Of course, like most private law firms, when we receive fee awards they go to the organization and not to the individual attorney(s).

Contrary to your commenter’s assumption, however, the ACLU of Indiana is not funded by “some governing body or entity,” and we do not receive any tax monies (except, of course, when they are received indirectly through fee-shifting statutes in cases in which we prevail). Rather, we are funded by private contributions and membership dues, in addition to attorneys’ fees that we recover.

Posted by Marcia Oddi on Friday, July 15, 2011
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - Still more on: "In a stunning reversal, the state's utility consumer agency now says Duke Energy Corp. -- and not its ratepayers -- should shoulder more of $530 million in cost overruns at its coal-gasification plant in Edwardsport"

This morning's Indianapolis Star has an expanded version of John Russell's story, first seen online yesterday afternoon, on the latest filings in the Duke Edwardsport case.

And just posted online, this IBJ story by Chris O'Malley, headed "Consumer group accuses Duke of 'gross mismanagement.'" A sample:

“If Mr. Turner, the second highest official at Duke Energy, had maintained nearly as close a level of contact with his counterparts at General Electric and Bechtel as he did with [IURC] chairman Hardy, it is hard to imagine that Duke would have received as much unanticipated bad cost news as it did,” said Peter Bradford, former chairman of the Maine Public Utility Commission and a former commissioner of the U.S. Nuclear Regulatory Commission. He filed testimony on behalf of CAC [Citizens Action Coalition].

Posted by Marcia Oddi on Friday, July 15, 2011
Posted to Indiana Government

Ind. Gov't. - More on "Curry raises questions by dropping OmniSource charges"

Updating this ILB entry from July 14th, Cory Schouten of the IBJ has just posted a "Wow!" story, headed "Attorneys to get big cut of $300K OmniSource settlement."

Posted by Marcia Oddi on Friday, July 15, 2011
Posted to Indiana Government

Ind. Courts - "It is not too late for prosecutors to dismiss this case."

That is a quote from the final paragraph of this op/ed today in the Indianapolis Star, authored by David Orentlicher and Nada Stotland.* Some quotes:

Imagine your daughter is pregnant and living with the father-to-be of the child. Her partner leaves her, and your daughter becomes severely depressed. Driven to despair and believing herself worthless and blameworthy, she attempts suicide by swallowing rat poison, a method most likely to cause her agonizing pain. Fortunately, friends find her and take her to the hospital. Doctors are able to save her life, and they deliver her 33-week-old fetus by cesarean section. The baby survives for a few days before dying.

If your daughter lives in Chicago, Cincinnati or Cleveland, she will receive the mental health care she needs. In Indianapolis, the prosecutor will throw her in jail and file murder charges against her.

We've roughly described the facts in the case of Bei Bei Shuai, who has been locked up for four months. Her incarceration and prosecution serve no principles of justice. Moreover, her treatment disregards basic standards of medical practice.

That prosecutors would bring murder charges is incomprehensible. * * *

Prosecuting Shuai is not only bad law and bad medicine. It also violates the separation of powers in government. Rather than deciding on their own when an act constitutes a crime, prosecutors must take their direction from the legislature. For good reason, attempted suicide is not a crime. If a prosecutor disagrees, then the proper forum for making his case is the Statehouse, not a courthouse.

We understand that elected officials feel compelled to take action when a tragedy occurs. However, like doctors, public officials must first do no harm. Prosecutors only make things worse when they treat medical problems as if they were criminal offenses.

It is not too late for prosecutors to dismiss this case. Shuai should receive the psychiatric care she desperately needs, and other pregnant women should be assured that their visits to the doctor or a hospital will result not in a prison term but in the health care they and their unborn children need.
_______________
Orentlicher, a former Democratic state representative, is Samuel R. Rosen Professor at Indiana University School of Law-Indianapolis. This column was co-authored by Nada Stotland, a psychiatrist and professor of psychiatry at Rush Medical College in Chicago.

The ILB has, by now, quite a long list of entries about this case.

Posted by Marcia Oddi on Friday, July 15, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Estate of Wilgus S. Gibbs, Sr., an 18-page opinion, Judge Barnes writes:

The restated issues before us are:
I. whether the proper execution of Gibbs Sr.'s Will was proven as a matter of law; and
II. whether there is any evidence that Gibbs Sr.'s Will is invalid for reasons of undue influence, fraud, or mistake. * * *

[I. Self-Proving Clause] If either Hubbard or Montgomery [witnesses] had later expressed doubt that Gibbs Sr. knew he was signing his will, or there was other evidence that he did not know what he was signing, the result in this case might be different. The designated evidence fails to reveal any such doubts or any such evidence. The Granddaughters have failed to rebut the presumption of regularity in the execution of Gibbs Sr.'s Will that is established by the self-proving clause. The trial court properly granted summary judgment in Gibbs Jr.'s favor on this issue. * * *

[II. Other Challenges to Will, A. Undue Influence, B. Mistake and/or Fraud] * * *

Conclusion. As a matter of law, the Granddaughters have failed to designate evidence sufficient to overcome the presumption, provided by the self-proving clause, that Gibbs Sr.'s Will was validly executed. The Granddaughters also have failed to designate any evidence that could support their claim of undue influence. We affirm the trial court's grant of summary judgment in favor of Gibbs Jr.

In Charles Meek v. State of Indiana , a 7-page opinion, Judge Kirsch writes:
Charles Meek (“Meek”) brings this interlocutory appeal from the trial court’s order denying his motion to suppress evidence discovered during a warrantless search of his person during a Terry stop of his vehicle. Meek raises the following restated issue for our review: Does the odor of raw marijuana emanating from a vehicle in which the defendant is an occupant provide sufficient probable cause for law enforcement officers to search the car and its occupants? We affirm.
Note: Yes, yesterday's COA opinion from another panel, in Edmond v. State also involved the odor of marijuana, and has a long footnote on p. 5 re the ordors of raw vs. burnt marijuana.

NFP civil opinions today (1):

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

NFP criminal opinions today (9):

Myron Pryor v. State of Indiana (NFP)

Shamar D. Shelton v. State of Indiana (NFP)

Meshach Berry v. State of Indiana (NFP)

Jason L. Clark v. State of Indiana (NFP)

Gary Singleton v. State of Indiana (NFP)

Rodney R. Jett v. State of Indiana (NFP)

Aaron Fromer v. State of Indiana (NFP)

Jeffrey Cole v. State of Indiana (NFP)

Shane Cummings v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, July 15, 2011
Posted to Ind. App.Ct. Decisions

Law - More on: NPR investigation of ALEC, "the birthplace of a thousand pieces of legislation introduced in statehouses across the county"

Remember this ILB entry from Oct. 29, 2010?

On July 13, 2011, Tom Hamburger and Neela Banerjee, of the Washington Bureau of the LA Times, had a long story headlined "State legislative bills raise conservative group's profile: The nonprofit American Legislative Exchange Council, or ALEC, made up of conservative state lawmakers and corporate executives, crafted the language that has resulted in similar legislation in several states. Watchdog groups are scrutinizing the organization's practices."

The story under the long headline begins:

In late January, the Indiana House of Representatives adopted a resolution asking Congress to compel the Environmental Protection Agency to stop regulating carbon emissions, declaring that "EPA over-regulation is driving jobs and industry out of America." Almost identical resolutions have won at least partial approval in a dozen other states, from Virginia to Michigan to Wyoming.

And it's no coincidence that the language of these resolutions is similar, describing EPA's plans to curb air pollution as a "train wreck" that will harm the economy.

In each case, the basic text of the resolutions sprang not from state capitols but from a relatively little-known, Washington-based nonprofit group called the American Legislative Exchange Council, or ALEC. Composed of more than 1,500 conservative state legislators and executives of some of the nation's biggest corporations, ALEC collects millions of dollars in corporate contributions to generate a steady stream of bills and resolutions for state action.

Topics include reducing government regulation, privatizing government services and requiring voters to show proof of identity at polling places.

On Wednesday, a Wisconsin-based liberal activist group, the Center for Media and Democracy, released thousands of pages of internal ALEC documents, including model bills, emails and details of the organization's internal procedures, which give private-sector representatives a major role in drafting proposed legislation.

"Dozens of corporations are paying millions of dollars a year to write business-friendly legislation that is becoming law in statehouses from coast to coast," said Bob Edgar, a former Democratic congressman from Pennsylvania who is currently president of Common Cause, the government watchdog group.

Common Cause plans to challenge ALEC's nonprofit status, arguing that it spends most of its resources lobbying, in violation of the rules governing nonprofit organizations. * * *

Legislators from every state are members of ALEC, many of them top GOP officials who champion the group's causes.

The Indiana bill, for example, was introduced by Republican state Rep. David Wolkins, who is co-chair of ALEC's Energy, Environment and Agriculture Task Force. In Virginia, state Delegate James W. "Will" Morefield said he took the EPA resolution verbatim from the ALEC website after it had been presented to him by the coal industry, according to the Virginian-Pilot newspaper.

And here is the press release from Common Cause, headed "ALEC Bills Expose Corporate Drive to Advance Business Over Public Interest." It begins:
Today’s release of more than 800 “model” bills and resolutions drafted and promoted by the American Legislative Exchange Council (ALEC) opens a window to the workings of a powerful and secretive corporate front group that has enlisted thousands of state lawmakers to pass legislation on its behalf, often in conflict with the public good, Common Cause said today.
The ILB is trying to locate the list of 800 bills.

Also of interest is this July 14, 2011 release headed "Common Cause seeks IRS audit of corporate/legislative group: Letter cites lobbying by American Legislative Exchange Council," and particularly the appended 65-page letter to the IRS.

Posted by Marcia Oddi on Friday, July 15, 2011
Posted to General Law Related

Ind. Gov't. - "Legal challenges can cost taxpayers: Suits involving Medicaid, immigration have been filed"; ILB comments

Sarah Seward of the Franklin College Statehouse Bureau writes in the Clark County News & Tribune:

INDIANAPOLIS — Indiana taxpayers could be forced to pay for state legislators’ actions if two lawsuits filed by the American Civil Liberties Union of Indiana prevail in court.

The Indiana General Assembly adopted two laws this past session that almost immediately became subjects of lawsuits to determine whether they were constitutional.

One of the measures would prevent Medicaid funding from going to organizations such as Planned Parenthood of Indiana because they perform abortions. The other measure grants law enforcement officers more arresting powers against illegal immigrants.

The U.S. District Court has granted preliminary injunctions against both measures.

Gilbert Holmes, the executive director of the ACLU of Indiana, said when the ACLU or any organization challenges a new law or policy on constitutional grounds and wins, the state is obligated to pay not only its own legal fees, but also those of the other side.

In 2010, the ACLU received about $105,000 when they challenged Indiana’s Division of Children Services on an adoption law on a constitutional basis and the state was required to pay the ACLU’s legal fees.

The ACLU refused to say how much time their lawyers have put into both cases at this point.

But Ken Falk, the lead attorney on both cases for the ACLU, charges $400 per hour.

Last year, the ACLU received $252,779 from winning cases in which the other side had to pay its legal fees.

Indianapolis attorney Hamid Kashani, who is of counsel to the ACLU of Indiana, estimated the legal fees in cases like these would be about $150,000 to $300,000 prior to any appeals.

“The fees rack up pretty fast,” Kashani said.

Kashani added that an appeal might add anywhere from $100,000 to $150,000 in fees.

Kashani said the expense will be “proportionate to how much resistance comes from the other side.”

Bryan Corbin, spokesperson for Indiana Attorney General Greg Zoeller, could not give an estimate of how many hours the state’s lawyers have spent on the Planned Parenthood and immigration suits.

This year the General Assembly approved a budget of $16.2 million for the attorney general’s office. The budget covers payroll for the office’s employees as well as the cost for representing the state in lawsuits.

Corbin said state legislators were not able to request legal advice on the measures they passed.

“Per a longstanding policy, the attorney general’s office does not issue formal legal advisory opinions to our clients about pending legislation during session,” Corbin said.

Holmes said if the two measures are judged unconstitutional, then Hoosiers should look not only at the money wasted paying for legal fees, but also at the time state legislators spent adopting unconstitutional laws.

ILB comment: Interesting story. The highlighted provisions near the end particularly caught my eye. I served on the end of the session bill review teams for both Governors Bowen and Orr. "Back in the day," the Attorney General presented an opinion to the Governor on any bill that might raise legal questions. Advice was also sometimes sought from one or more of the big Indy firms. The Governor did not always follow the advice, but it became part of the equation. I don't know if this practice continues.

Posted by Marcia Oddi on Friday, July 15, 2011
Posted to Indiana Government

Courts - "Accused leaker asks feds to fact check NYT reporter's book"

Not something the ILB would normally cover, but this column item from Politico points out what looks to be a real misstep by federal prosecutors.

Another example yesterday, not so obscure, is the mistrial in the Roger Clemens' perjury trial, which, according to this AP story:

[T]he judge blamed [the mistrial] on [the federal] prosecutors and said a "first-year law student" would have known to avoid.

Posted by Marcia Oddi on Friday, July 15, 2011
Posted to Courts in general

Ind. Decisions - 7th Circuit panel upholds $500K payment to victim

Yesterday's 7th Circuit decision in U.S. v. Worden is the subject of a story today in the NWI Times, reported by Bob Kasarda that begins:

CHICAGO | The federal 7th Circuit Court of Appeals has tossed out a Valparaiso man's attempts to challenge a court order to pay a half million in restitution to a woman whose childhood images were found among his stash of child pornography.

The court determined Thursday that 30-year-old Nathaniel Worden waived his legal right to appeal or otherwise challenge the restitution order when he entered into a plea agreement in his case.

Posted by Marcia Oddi on Friday, July 15, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Porter County wins appeal on waste transfer station"

Yesterday's COA opinion in Great Lakes Transfer, LLC, et al. v. Porter County Highway Dept. is the subject of a brief NWI Times story.

Posted by Marcia Oddi on Friday, July 15, 2011
Posted to Ind. App.Ct. Decisions

Thursday, July 14, 2011

Ind. Gov't. - Charlie White to seek delay in criminal trial

Carrie Ritchie of the IndyStar has the story here.

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to Indiana Government

Ind. Gov't. - More on: "In a stunning reversal, the state's utility consumer agency now says Duke Energy Corp. -- and not its ratepayers -- should shoulder more of $530 million in cost overruns at its coal-gasification plant in Edwardsport"

Updating this ILB entry from July 9th, which included a copy of the July 1 filing of Barbara A. Smith of the Office of Utility Consumer Counselor, today another major player, the Indiana Industrial Group, has given an advance look at testimony it filed today. Although it is not yet available online (but should be tomorrow), the Indianapolis Star's John Russell apparently has a copy, and reports this afternoon:

Saying that Duke Energy Corp. concealed "significant information" on the cost of its massive coal-gasification plant in Edwardsport, a group of large industrial customers wants the utility to swallow about $1 billion in cost overruns, rather than pass them along to ratepayers.

The large customers, which include steelmakers and foundries, argue in a public filing today that Duke hid vital information on the plant's construction, including its critical decision to manage the project rather than obtain a lump-sum turnkey contract. Such a move put ratepayers at greater risk of cost overruns, the customers said.

Duke is also accused in the filing of concealing information about an expensive wastewater system at the plant, and of engaging in widespread secret communications with the former chairman of the Indiana Utility Regulatory Commission, in violation of law. * * *

The industrial customers now say they want the IURC to limit to $1.985 billion the amount that Duke can now pass along to ratepayers. That's the original cost that state regulators approved in 2007, before Duke asked the state to approve two large rounds of overruns, worth about $1 billion in extra cost. Duke said the rising cost of materials and labor, along with design changes, pushed the cost up. The IURC had approved the first round of overruns, worth about $365 million. * * *

What exactly Duke knew about the costs of the project remain unclear. The new filing contains dozens of pages of redacted information provided by Duke or its contractors under confidentiality agreements.

Michael Banta, a retired vice president at Indianapolis Power & Light Co. and utility lawyer, submitted testimony on behalf of the industrial customers to argue that Duke did not share relevant information with regulators from the outset. [ILB - Banta is also a former member of the Utility Regulatory Commission, appointed by Gov. Orr.]

Another witness, William N. D'Onofrio, a regulatory consultant, testified that Duke executives engaged in "pervasive" secret communications with regulators throughout the process, in violation of state law.

The plant, located in southern Indiana, is more than 80 percent built. It is set to open next year.

The filings examine whether Duke's action on the project constitute fraud, concealment and/or gross mismanagement. Under state law, if the IURC finds that Duke committed fraud, concealment or gross mismanagement, the the commission can reduce the amount of the project that can be passed along to ratepayers.

Also expected to file testimony this week are Citizens Action Coalition, a consumer group; and the Office of Utility Consumer Counselor.

Interesting also today is the report that AEP is shelving its carbon-capture project. Here are some quotes from the front-page NY Times story today, reported by Matthew Wald and John Broder. Some quotes:
American Electric Power has decided to table plans to build a full-scale carbon-capture plant at Mountaineer, a 31-year-old coal-fired plant in West Virginia, where the company has successfully captured and buried carbon dioxide in a small pilot program for two years.

The technology had been heralded as the quickest solution to help the coal industry weather tougher federal limits on greenhouse gas emissions. But Congressional inaction on climate change diminished the incentives that had spurred A.E.P. to take the leap.

Company officials, who plan an announcement on Thursday, said they were dropping the larger, $668 million project because they did not believe state regulators would let the company recover its costs by charging customers, thus leaving it no compelling regulatory or business reason to continue the program.

The federal Department of Energy had pledged to cover half the cost, but A.E.P. said it was unwilling to spend the remainder in a political climate that had changed strikingly since it began the project.

“We are placing the project on hold until economic and policy conditions create a viable path forward,” said Michael G. Morris, chairman of American Electric Power, based in Columbus, Ohio, one of the largest operators of coal-fired generating plants in the United States. He said his company and other coal-burning utilities were caught in a quandary: they need to develop carbon-capture technology to meet any future greenhouse-gas emissions rules, but they cannot afford the projects without federal standards that will require them to act and will persuade the states to allow reimbursement.

The decision could set back for years efforts to learn how best to capture carbon emissions that result from burning fossil fuels and then inject them deep under-ground to keep them from accumulating in the atmosphere and heating the planet. The procedure, formally known as carbon capture and sequestration or C.C.S., offers the best current technology for taming greenhouse-gas emissions from traditional fuels burned at existing plants.

See also this Nov. 27, 2009 ILB entry re the Edwardsport project, headed "Cost of coal-gasification plant reaches $2.5 billion; the estimate so far doesn't include the potential costs for developing technology to capture and store carbon dioxide emitted by the plant."

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to Indiana Government

Ind. Gov't. - More on: "Huntertown did not violate open-meetings law, state says"

The FWJG has now posted online a copy of the June 12, 2011 PAC opinion referenced in this morning's story. The opinion is worth reading. Here is the conclusion:

Generally, the fact that some or all members of a governing body have made a decision regarding a specific issue does not necessarily mean that the Council secretly conducted official action regarding that issue. Individual members of governing bodies might announce their support or opposition to various projects independently of what the Council does as a whole. The Indiana Court of Appeals determined that governing bodies may make decisions in executive session as long as the corresponding final action (i.e., vote) is taken at a public meeting. See Baker v. Town of Middlebury, 753 N.E.2d 67 (Ind. Ct. App. 2001). In Baker, Town Marshal Baker alleged that during an executive session to discuss his job perfonnance, the town council had violated the ODL by compiling a list of persons to be rehired and keeping his name off the list. The list was later used in a public meeting to make decisions on who would be rehired. The court held that the compilation of the list was not "final action" and that creating the list did not go beyond the scope of the General Assembly's expressed intent to permit governing bodies the ability to meet privately to discuss certain personnel matters. Instead, the court said the "final action" consisted of the council's vote at the public meeting. Id. at 7l. Similarly, any decisions made by the Council during executive session in the present matter would not constitute final action because the ODL permitted the Council to discuss strategy regarding the acquisition of the Plant's property in executive session. I.C. § 5-14-1.5-6.1(b)(2)(D). Final action regarding the Plant (as well as the utility rates and IDEM application [1]), however, must occur at a meeting that is open to the public, and the Council's response to your complaint acknowledges the same.

CONCLUSION. For the foregoing reasons, it is my opinion that the Council did not violate the ODL if it has not yet taken final action regarding the Plant, the utility rates, or the IDEM application.
_______________
[1] Future final action regarding the IDEM permit, presumably, would pertain to the submission of a National Pollutant Discharge Elimination System permit after final selection of the Plant's location.

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides Illinois case re child pornography sentence [Updated]

In USA v. Dennis Garthus, a 13-page opinion in an appeal from the ND Illinois, Judge Posner's opinion concludes:

The gravity of the defendant’s offense should not be denigrated. This case is like United States v. Goldberg, 491 F.3d 668, 669, 672 (7th Cir. 2007), where “young children were raped in order to enable the production of the pornography that the defendant both downloaded and uploaded—both consumed himself and disseminated to others. * * * The greater the customer demand for child pornography, the more that will be produced . . . . The logic of deterrence suggests that the lighter the punishment for downloading and uploading child pornography, the greater the customer demand for it and so the more will be produced.” Defense counsel could not have picked a less auspicious vehicle for mounting a broad assault on the guideline provisions relating to child pornography.
[Updated at 4:14 pm] Sentencing Law Blog now has a post on the opinion. It begins:
Judge Posner provides today's must-read circuit opinion in US v. Garthus, No. 10-3097 (7th Cir. July 14, 2011. Judge Posner's opinion for the Seventh Circuit in Garthus packs in so much of interest in a tight 13 pages, I have a hard time deciding which part to excerpt.

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides case involving Indiana

In U.S. v. Worden (ND Ind., Van Bokkelen), a 10-page opinion, Judge Lefkow (sitting by designation) writes:

Nathaniel Josiah Worden pleaded guilty to one count of advertising child pornography, a violation of 18 U.S.C. § 2251(d)(1). In a plea agreement, Worden agreed to a comprehensive waiver of appellate rights. Worden now challenges the district court’s order of approximately half a million dollars in restitution to one of the victims of his offense. Because we conclude that the restitution order falls within the scope of the appellate waiver in Worden’s plea agreement, his appeal must be dismissed.

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to Ind. (7th Cir.) Decisions

Law - "Sheboygan DA blasts concealed-carry law: Gun rule raises questions of owner privacy, officer safety"

Gitte Laasby, award-winning environmental reporter for the Gary Post-Tribune, moved on earlier this year to the Milwaukee Journal Sentinel, where she is a police reporter. Her story today is interesting in itself, and also in that this may become a future Indiana issue. It begins:

Less than a week after Gov. Scott Walker signed Wisconsin's first-ever concealed-carry bill into law, some law enforcement officials are raising concerns that the law would put police officers' safety at risk.

Others, however, say changing the law could lead officers to abuse their privileges and invade gun holders' privacy.

Under the law, expected to take effect Nov. 1, the Department of Justice would keep a database of people who hold concealed-carry permits. Officers would be authorized to check the database to verify that a permit is valid and investigate whether someone lied in applying for a permit.

But police would not be allowed to check the database for routine assignments - for instance traffic stops, domestic disturbances and execution of search warrants - where such information could be a helpful tool in assessing the level of potential danger to an officer.

"It is outrageous when, hiding behind a constitutional right, special interest groups' paranoia and extreme views put our officers at risk when they are simply trying to do their sworn duty and remain as safe as possible," said Sheboygan County District Attorney Joe DeCecco in a news release Wednesday. "The present prohibition endangers the officers upon whom we depend for public safety, and reflects the extreme agenda and paranoia of the National Rifle Association and other gun lobbying groups that advanced these provisions. What are they afraid of?"

DeCecco said access to the database could help officers determine the level of danger and alert them of any guns present before they make contact. In rural areas where a single officer often responds, he could call for backup or secure the weapon immediately upon contact.

"(They) walk into a situation where people are yelling and screaming and they can't run a check to see, there's two people in this house who have a permit. They may walk in and say, 'Mr. Jones, you have a permit. Where's that gun right now?' I think that's reasonable," DeCecco said. "It doesn't compromise the right to carry concealed. I think cops should have the right to know everything they can possibly know."

ILB readers may recall that in 2010 the Indiana General Assemby passed a law that made carry-permit records confidential, but with an exception for law enforcement. See this Feb. 14, 2010 ILB entry and its links.

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Great Lakes Transfer, LLC, et al. v. Porter County Highway Dept., et al. , a 15-page opinion, the COA affirms the trial court decision, with Judge Najam concluding:

In sum, the Highway Department’s review of Great Lakes Transfer’s application for a driveway permit was a discretionary administrative act and not a decision subject to judicial review. The issue before the Highway Department required the county engineer to exercise his discretion in determining Great Lakes Transfer’s compliance with local regulations. See Peavler v. Bd. of Comm’rs of Monroe County, 528 N.E.2d 40, 45-46 (Ind. 1988). And because the decision on the application was within the county engineer’s discretion, the Highway Department was under no clear legal duty to grant Great Lakes Transfer’s application. Indeed, it would be a curious rule that required a highway department to grant a permit without regard to public safety and traffic safety standards, vehicle loads, or the adequacy of infrastructure to meet the proposed use. As such, the trial court lacked subject matter jurisdiction over Great Lakes Transfer’s petition for review, and we affirm the trial court’s judgment in favor of Porter County.
Affirmed.
See also this Oct. 4, 2010 ILB entry on the trial court decision, headed "Porter County wins battle in transfer station war."

In Shon L. Edmond v. State of Indiana , a 12-page opinion, Judge Crone concludes:

While the evidence against Edmond may not have been as strong as that in many other cases involving drugs, the evidence was nevertheless sufficient to establish probable cause for arrest; therefore, we conclude that the degree of suspicion weighs in the State's favor. Although the search of a person's body is a substantial intrusion, a police officer is authorized to conduct a thorough search of an arrestee. Officer Drennan conducted only a pat-down search of Edmond's clothing; thus, the degree of intrusion was minimal under the circumstances. See Powell v. State, 898 N.E.2d 328, 336 (Ind. Ct. App. 2008) (where, during pat-down search of arrestee, officer felt an object in arrestee's underwear but could not figure out how to access the object, it was not unreasonable for officer to cut open the arrestee's underwear), trans. denied. A search incident to arrest serves important purposes, such as ensuring that the arrestee is unarmed, preventing the arrestee from bringing contraband into jail, and preventing the destruction of evidence. Andrews v. State, 588 N.E.2d 1298, 1303 (Ind. Ct. App. 1992). Therefore, we conclude that law enforcement needs also weigh in the State's favor. As all three factors support the officer's action in this case, we conclude that Edmond's rights under Article 1, Section 13 were not violated.

Because Edmond's rights under the Fourth Amendment and Article 1, Section 13 were not violated, the trial court did not abuse its discretion by admitting the marijuana found in his pocket into evidence. Therefore, we affirm his conviction.

In James R. Hundley v. State of Indiana , a 16-page opinion, Judge Najam's opinion begins:
James R. Hundley appeals his conviction and sentence for dealing in methamphetamine, as a Class A felony, following a jury trial. Hundley presents two issues for review: 1. Whether the evidence is sufficient to support his conviction. 2. Whether his sentence is inappropriate in light of the nature of the offense and his character. We affirm. * * *

Hundley next contends that the evidence is insufficient to show that he was dealing in methamphetamine, as a Class A felony. Specifically, Hundley contends that the State did not prove that the weight of the methamphetamine found at the campsite was in excess of three grams and, therefore, the State did not prove the Class A felony. Hundley points out that his conviction was based on the weight of the pill dough sample that was tested and that the pill dough contained material in addition to methamphetamine. Hundley then argues that the court should have considered only the weight of pure methamphetamine in determining the level of his offense. We cannot agree. * * *

The question presented in this case is whether the weight of an intermediate substance that is created in the process of manufacturing methamphetamine should be considered as a whole in determining the weight element of the offense. We hold that where, as here, the intermediate step is so near the end of the manufacturing process that the final product is present in the chemical compound, that substance qualifies as an “adulterated drug” for purposes of our manufacturing statutes.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Kraig Eric Burgan v. State of Indiana (NFP)

Karl Neil Robinson v. State of Indiana (NFP)

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

James M. Mrozinski v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - NYT editorial cites three district court preliminary injunctions

The editorial, headed "The Courts Step In," begins:

In three new rulings, federal judges in different states have acted to block immediate enforcement of measures that restrict abortion rights and women’s access to affordable contraception, lifesaving cancer screenings and treatment for sexually transmitted diseases. These rulings are important victories for women’s health and reproductive rights.

On June 24, Judge Tanya Pratt of the Federal District Court in Indianapolis issued a preliminary injunction blocking enforcement of a new Indiana law banning the use of Medicaid funds at Planned Parenthood clinics, which provide essential health services to low-income women. The mean-spirited law is part of a Republican-led national campaign to end public financing for Planned Parenthood. The Obama administration promptly told Indiana, and other states weighing similar legislation, that the measure violated federal law by imposing impermissible restrictions on the freedom of Medicaid beneficiaries to choose health care providers. Judge Pratt agreed with that

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Huntertown did not violate open-meetings law, state says"

That is the heading to this story today in the Fort Wayne Journal Gazette that is confusing to me. Apparently the state PAC is saying there was no violation because there was no public meeting? Here are some quotes:

The Huntertown Town Council did not violate state law when it disclosed plans to build a new wastewater treatment plant, Indiana’s public access counselor said.

The Journal Gazette filed a complaint June 8, alleging that the council violated the Open Door Law by taking final action on a measure during a non-public meeting.

Andrew Kossack, the state’s access counselor, ruled Tuesday that “no final action occurred absent a public meeting.” * * *

Kossack ruled that any decisions made by the council during an executive session would not constitute final action. The Open Door Law “permits the council to discuss strategy regarding the acquisition of the plant’s property in executive session,” Kossack said.

Large crowds – the majority of them speaking against the Woods Road site – have attended the last three council meetings. Fortman said last week the council is investigating another possible plant site on Hathaway Road.

Unfortunately, the FWJG, which filed the PAC complaint, does not provide a copy of the PAC opinion.

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to Indiana Government

Ind. Gov't. - Still more on: What happens when a state government shuts down

Updating this ILB entry from July 11, following the impact of the Minnesota government shutdown, Slate's Will Oremus writes today, "Minnesota’s government shutdown has entered a sobering new phase."

Two weeks after the state’s political leaders missed a deadline to resolve their differences over the budget, the state’s Public Safety Department told local reporters that the beer conglomerate Miller-Coors would be forced to pull its wares from stores statewide. It seems the country’s second-largest beer conglomerate neglected to renew the paperwork required to distribute its 39 brands of cold ones within the state before the July 1 shutdown (a claim company reps dispute). Now it’s too late.

The casualties include not only Miller and Coors but summer favorite Blue Moon, street-corner staple Olde English and the delicious high-end Czech import Pilsner Urquell. But that’s not all, the Duluth News Tribune reports. Hundreds of bars and liquor stores in the state are in peril of running out of booze altogether because the “buyer’s cards” required to purchase alcohol expired at the end of June.

“We’re talking about millions of dollars at stake here that can never be made up,” Frank Ball, executive director of the Minnesota Licensed Beverage Association, told the News Tribune. “We’ve got businesses that are about to close their doors if they can’t buy beer to sell.”

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to Indiana Government

Courts - More on: ChicagoTribune wins suit over U of Illinois clout list

Remember the award-winning Chicago Tribune investigative series, "Clout goes to college," about admissions practices at the University of Illinois.

This ILB entry from March 10, 2010, reported that "U.S. District Court judge Joan Gottschall ruled that U. of I. is mistaken in citing the federal Family Education Rights and Privacy Act of 1974 in its denial of the Tribune’s efforts to obtain the student’s names, grade-point averages and college admissions test scores."

Today Tribune reporter Antonio Olivo has a story headed "U. of I. disclosure appeal gets under way in federal court: In battle stemming from Tribune investigation, university argues Family Education Rights and Privacy Act of 1974 bars it from releasing applicant info," that begins:

The University of Illinois on Wednesday filed its opening brief in an appeal to a federal court ruling that a privacy law governing financial aid does not bar the school from releasing information about hundreds of well-connected college applicants.

In an ongoing legal dispute that stems from the Tribune's 2009 "Clout Goes to College" investigation, U. of I. officials have argued that releasing grade-point averages, standardized test scores and other details about so-called Category I applicants would violate the federal Family Education Rights and Privacy Act of 1974, also known as FERPA.

A ruling in March by federal Judge Joan Gotschall that FERPA does not specifically prohibit the release of the records "is wrong as a matter of law," the university argued in its opening brief filed in the 7th U.S. Circuit Court of Appeals.

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to Courts in general

Law - "Amazon Takes On California"

The ILB has been following stories about Amazon.com and sales tax collection, most recently with this entry from May 9, 2011, headed "Online retailer Amazon repays Indiana sales tax policy."

Amazon recently stopped its affiliates program in California after that state passed passed a law "that requires Internet retailers to pay sales tax if they have affiliates or subsidiaries in the state." See also this March 13th ILB entry, headed Taxing Amazon purchases cost Illinois $$$."

Today the NY Times has a long story by Matt Richel and Verne G. Kopytoff, headed "Amazon Takes On California." Some quotes:

SAN FRANCISCO — Amazon, the world’s largest online merchant, has an ambitious and far-reaching new agenda: it wants to rewrite tax policy for the Internet era.

Amazon said this week that it would push a voter initiative in California that could eliminate sales tax for virtual sellers with only a modest physical presence in the state. Its move instantly escalated the company’s long-running battle with many states over collecting sales tax, taking the question directly to voters. And it has sharply intensified its dispute with physical retailers like Wal-Mart Stores and Target, which have vowed to fight the measure.

Some political science and business professors say the conflict could take on the polarizing nature of Proposition 13, a decades-old referendum that limited property tax increases and remains a lightning rod in the state. Political experts say Amazon’s proposed referendum is likely to gather the signatures necessary to appear on the ballot as early as next February.

Nancy F. Koehn, a retail historian at the Harvard Business School, said the initiative highlighted the evolution of Internet retailing into a “major highway of commerce.”

Internet shopping “is no longer a small, out-of-the way quirky tributary of shopping,” she said, adding: “It’s the fastest-growing distribution channel in America. This is a referendum on how we’re going to treat it.” * * *

The boom of Internet commerce has prompted a growing number of states to pass laws redefining “physical presence.” California’s law, which took effect July 1, is the most expansive, while laws in other states, like Illinois, Colorado and Connecticut, expand the definition of physical presence to include affiliates but not subsidiaries.

To avoid paying sales taxes in those states, Amazon has severed business ties with its affiliates, local Web sites that promote and link to Amazon products. Two weeks ago, in response to the California law, Amazon cut ties with California affiliates. In Texas, it plans to close a warehouse to avoid having a physical presence. In New York, Amazon has gone to court to challenge a state law that defines physical presence to include affiliates. In the meantime, the company is collecting New York sales tax.

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to General Law Related

Courts - "Michigan Supreme Court rules homelessness not a defense for sex offender failing to register"

See the Sentencing Law Blog entry here.

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to Courts in general

Ind. Gov't. - "Curry raises questions by dropping OmniSource charges"

The IndyStar's Carrie Ritchie has the long front-page story today, that begins:

When Marion County Prosecutor Terry Curry won the election in November, he said he was "taking down the 'for sale' sign" from the prosecutor's office.

But Wednesday, it was Curry who was raising eyebrows and facing scrutiny. The prosecutor announced he was dropping charges in a high-profile case against a local metal recycling company -- and that the company, OmniSource, had agreed to donate $300,000 to law enforcement.

Curry said the money will help cover the cost of the nearly two-year investigation, and that 20 percent, or $60,000, will go to the prosecutor's office.

The Star has an accompanying editorial that begins:
Let's be sure we have this straight.

A company is hauled through a criminal probe lasting more than two years, the charges get dropped, the authorities agree to return $279,000 in confiscated money, and the company's owners for all their righteous indignation donate $300,000 to the county.

Welcome to the strange case of OmniSource, large recycler of metals and target of a crusade against stolen-goods trafficking that embarrassed the police and divided prosecutors.

Earlier ILB entries on Prosecutor Curry include:
  • April 11, 2011 - Thoughts on the new Marion County prosecutor

  • March 9, 2011 - "Marion Co. prosecutor Curry creates white-collar crime hotline"

Posted by Marcia Oddi on Thursday, July 14, 2011
Posted to Indiana Government

Wednesday, July 13, 2011

Ind. Courts - "New science shows Southern Indiana woman didn't kill son, judges told"

Updating this ILB entry from this morning, Charles Wilson of the AP has good coverage this afternoon of the oral argument before the COA this morning.

[More] Here is a new, long story from WRTV 13. A quote:

Christine Bunch has been in prison for 15 years. This is the closest she's come to possibly getting a new trial.

She's the latest in a growing number of convicted arsonists going after what fire experts call "junk science." That refers to unproven methods used by fire investigators to determine arson until 2001, when Dan Churchward and a technical team found investigators were doing it wrong. * * *

It's up to the Court of Appeals to decide who to believe.

"She's innocent. Please give her a chance to prove that," Safer concluded.

A decision for Bunch could come within weeks. She is now serving a 60-year sentence, and is backed by the Northwestern University's Center on Wrongful Convictions.

13 investigates' series "Burning Injustice" focused on another Indiana man's arson case. The Appeals Court ordered a new trial, but the charges were dropped after the judge found evidentiary problems.

Posted by Marcia Oddi on Wednesday, July 13, 2011
Posted to Upcoming Oral Arguments

Courts - Wisconsin justices may only remove themselves from a case, not each other

Or, as this story in the Milwaukee Journal Sentinel, by Patrick Marley, begins:

Madison - State Supreme Court justices can't kick each other off cases for alleged bias, the court ruled Tuesday in a bitterly divided decision along now-familiar 4-3 lines.
On another Wisconsin issue, the AP reports today:
MADISON, Wis. — All six fake Democrats lost to Democrats supported by the party in primaries Tuesday that are the first in a series of recall elections targeting nine Wisconsin state senators for their positions on Republican Gov. Scott Walker's divisive union rights restrictions.

Posted by Marcia Oddi on Wednesday, July 13, 2011
Posted to Courts in general

Ind. Decisions - 7th Circuit decides case involving Indiana's Home Loan Practices Act (IHLPA)

In Collins, et al v. America's Servicing Company (ASC) (ND Ind., Miller), an 11-page opinion, Judge Evans writes:

Phillip Collins, one of the many Americans who purchased a house in the early 2000s, filed suit against America’s Servicing Company (ASC), claiming it violated the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2605, et seq., as well as Indiana’s Home Loan Practices Act (IHLPA), IND. CODE § 24-9-1-1 et seq., when, after he fell behind in his payments, it assessed monthly late fees and reported the late payments on his mortgage, thus preventing him from refinancing his house and ultimately leading to foreclosure proceedings. The district judge, finding that Collins failed to prove the necessary elements to survive summary judgment, granted ASC’s motion. Collins now appeals. * * *

Collins next argues that ASC’s conduct violated the IHLPA. To prevail on this claim, he must show that ASC (1) knowingly or intentionally, (2) made a material misrepresentation, or (3) concealed material information regarding the terms or conditions of the transactions. IND. CODE § 24-9-2-7(a). The judge found that Collins failed to prove any of these elements.

Collins contends that ASC violated the IHLPA because it did not consider the forbearance agreements when assessing late fees and that he had every expectation, as long as he made the payments according to the forbearance agreements, that he would not be assessed late fees. Unfortunately for Collins, the forbearance agreements specifically provided that all terms of the original mortgage remained in full force and effect, including the provision that payments would be applied in the order they became due. Moreover, there was no grace period in either of the forbearance agreements. Therefore, as Collins continued to fail to make timely payments, ASC had the right to assess late fees and make negative credit reports under the terms of all three contracts. Accordingly, Collins cannot prove that ASC knowingly or intentionally made a material misrepresentation or concealed information, because the plain language of the forbearance agreements made clear that all the provisions of the original mortgage applied. See Baker v. America’s Mortgage Servicing, Inc., 58 F.3d 321, 328 (7th Cir. 1995) (assessment of late fees under a mortgage agreement does not violate a state’s consumer fraud statute if they are assessed in accordance with the express terms of the contract).

For these reasons, the judge properly granted ASC’s summary judgment motion with regard to both Collins’ No. 10-2962 11 breach of contract and IHLPA claims. The judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Wednesday, July 13, 2011
Posted to Ind. (7th Cir.) Decisions

Courts - Following up on: Can DOJ force you to give up computer password?

Following up on the ILB entry from July 11th, the Law Librarian Blog today looks at that issue, plus this one:

[L]aw enforcement agencies are increasing the amount of warrants sent to Facebook to gather data on individuals. That law enforcement agents are interested in Facebook user details is no surprise. Stories of private investigators, employers, and others gathering character evidence are not shocking. The Reuters report adds a number of new wrinkles. One is that the requests are for a user's "Neoprint" and 'Photoprint," details the report says are not available to the user. Does Facebook compile its own dossiers on individuals it doesn't share?

The second wrinkle is that the section in law enforcement manuals on how to request information from Facebook "appear" to be prepared by Facebook.

Check the LLB entry for links. See particularly the "Facebook Subpoena / Search Warrant Guidelines."

Posted by Marcia Oddi on Wednesday, July 13, 2011
Posted to Courts in general

Courts - "Ohio Supreme Court finds new Ohio SORNA-compliant sex offender requirements punitive"

Sentencing Law & Policy has the decision here. The intro:

In a ruling with potential national implications even though based only on state law, the Ohio Supreme Court this morning in a 5-2 opinion decided that the state's new sex offender registration requirements were punitive and thus could not, as a matter of Ohio state constitutional law, be applied to offenders who committed offenses before this new registration law was put into effect.

Posted by Marcia Oddi on Wednesday, July 13, 2011
Posted to Courts in general

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

In Jill Treat v. Kelley Automotive Group (ND Ind., Lee), a 13-page opinion, Judge Hamilton writes:

Jill and Cody Treat sued their employer, Tom Kelley Buick Pontiac GMC, Inc., and its parent dealership group for failure to pay them their correct wages under Indiana state law. The question presented by this appeal is whether the Treats properly brought their claims under the state’s Wage Payment Statute, Ind. Code § 22-2-5-1 et seq., or whether their claims against Kelley arose under a different Indiana wage recovery law, known as the Wage Claims Statute, Ind. Code § 22-2-9-1 et seq. The district court concluded that the Treats erroneously brought their claim under the Payment Statute rather than the Claims Statute. Because the Treats had not filed their claim according to the procedure required under the Claims Statute, the court granted summary judgment to Kelley. Treat v. Tom Kelley Buick Pontiac GMC, Inc., 710 F. Supp. 2d 762 (N.D. Ind. 2010), and 710 F. Supp. 2d 777 (N.D. Ind. 2010). We agree with the district court and affirm its judgment.

Posted by Marcia Oddi on Wednesday, July 13, 2011
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Mari Miller v. Glenda Owens, et al., a 13-page opinion, Judge Mathias concludes:

We conclude that the trial court properly construed Section 105 and properly determined that the amount of Calisto’s weekly disposable earnings subject to garnishment is $12.17. Thus, the trial court did not err in finding that Waterford was not in contempt of the trial court’s garnishment order, nor did the court err in denying Miller’s request for attorney fees.
In K.D., et al. v. Adrianne Chambers, R.N., et al., an 18-page opinion, Cheif Judge Robb writes:
Michelle Campbell observed her two-year-old child, K.D., suffer a reaction from an overdose of Benadryl and filed suit on behalf of K.D. and herself for medical malpractice. After the proposed complaint was presented to a medical review panel, the case was set for jury trial. K.D. and Campbell (“Plaintiffs”) now bring this interlocutory appeal from the trial court’s grant of pretrial evidentiary motions by Adrianne Chambers, R.N. and Riley Children’s Hospital (“Defendants”). On appeal, Plaintiffs raise the issues of whether the trial court abused its discretion when it: 1) granted Defendants’ motion to exclude all expert testimony by toxicologist Daniel J. McCoy, Ph.D., on the grounds that he was not qualified to offer expert medical testimony; 2) granted Defendants’ motion in limine to exclude evidence that Campbell suffered negligent infliction of emotional distress, on the grounds that no such claim had been properly pleaded; and 3) granted Defendants’ motion in limine to exclude evidence of breaches of the standard of care, other than the overdose of Benadryl, that were not presented to the medical review panel.

As to the first issue, we conclude the trial court abused its discretion in excluding McCoy’s testimony based solely on his curriculum vitae without holding an Evidence Rule 702 hearing. As for the second issue, the trial court did not abuse its discretion because no claim of negligent infliction of emotional distress was sufficiently pleaded. As for the third issue, the trial court correctly excluded Plaintiffs from introducing evidence of separate breaches of the standard of care not presented to the medical review panel, but because one of those claimed breaches is within the scope of Plaintiffs’ submission to the review panel, we reverse in part the trial court’s grant of Defendants’ motion. In sum, we affirm in part and reverse in part the trial court’s orders and remand for further proceedings.

NFP civil opinions today (1):

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

NFP criminal opinions today (4):

Larry Lefler v,. State of Indiana (NFP)

William Miller v. State of Indiana (NFP)

Matthew N. Williams v. State of Indiana (NFP)

Dallas Washington v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 13, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on "Arson science on trial in Indiana courtroom: Evidence challenged in 1995 conviction"

The oral argument in Kristine M. Bunch vs. State of Indiana (see this morning's earlier entry) has now concluded. I watched it, it was fast moving and dealt with difficult evidence issues.

The Court of Appeals panel, made up of Chief Judge Robb, Judge Najam and Judge Crone, was totally engaged. The attorney for the appellant, Ron Safer, and the attorney for the State, Ian McLean, were both excellent.

Posted by Marcia Oddi on Wednesday, July 13, 2011
Posted to Upcoming Oral Arguments

Law - "How a New Police Tool for Face Recognition Works"

Emily Steel reports today in a WSJ technology blog entry that begins:

Police forces across the country are planning to start using new mobile technology later this year that can identify suspects and instantly reveal their criminal history based on a picture of their face or iris, the colored portion of an eye.
Another WSJ story ($$$) points out the obvious legal issues involving privacy and civil liberties.

Posted by Marcia Oddi on Wednesday, July 13, 2011
Posted to General Law Related

Ind. Courts - AG sues LaGrange County Clerk

From a long press release issued yesterday:

INDIANAPOLIS - Today Indiana Attorney General Greg Zoeller filed a civil suit against the county clerk of LaGrange County to recover more than $18,000 misappropriated from the government office and reimburse the public treasury.

"It is truly disappointing when a sitting officeholder sworn to uphold the public trust fails to properly handle the tax dollars entrusted to her care. Such a breach of trust leaves the State no choice but to file suit," Zoeller said.

For instance, the release continues, according to the State Board of Accounts audit:
From September to December of 2008, the Clerk's Office allowed citizens to pay court fines and fees by credit card. But $6,401 in payments that the clerk's records show were made by credit card were never deposited into the Clerk's Office bank account, almost all of them from a single day, September 5, 2008. Elliott as county clerk is legally responsible for the amount and the SBoA asks that she reimburse it.

Posted by Marcia Oddi on Wednesday, July 13, 2011
Posted to Indiana Courts

Ind. Courts - More on "Arson science on trial in Indiana courtroom: Evidence challenged in 1995 conviction"

This morning at 11:00 am the Court of Appeals will hear oral argument in the case of Kristine M. Bunch vs. State of Indiana. See this week's ILB oral argument calendar and summary here.

For background, see this long ILB entry from Oct. 25, 2009, with links to a number of reports, most still available.

Here is a brief story this morning by Charles Wilson of the AP. A quote:

A Decatur County jury convicted Bunch of murder and arson in 1996. She was sentenced to 60 years in prison.

Prosecutors said Bunch poured kerosene or some other fuel in her son's bedroom and the living room of their mobile home and lit it on fire. Lawyers working with Northwestern University School of Law's Center on Wrongful Convictions say science discovered since the 1990s shows that fuel couldn't have been used, and other possible causes were ignored.

Watch the oral argument here at 11:00 am this morning.

Posted by Marcia Oddi on Wednesday, July 13, 2011
Posted to Upcoming Oral Arguments

Tuesday, July 12, 2011

Law - "When a Wait of One Day Feels Like One Too Long"

That is the headline to this great story today in the NY Times about the history of the waiting period for marriage licenses, reported by Thomas Kaplan, who writes: "New York’s waiting period, begun in 1936, is back in the limelight because of the legalization of same-sex marriage." A sample:

New York is one of about two dozen states that require a waiting period for marriages. Over the past seven decades, the waiting period has been changed at least eight times, with legislators altering its length to reflect changing mores and, during some periods, to require blood tests because of concerns about sexually and genetically transmitted diseases.

But historians say the underlying motivation for waiting periods can be traced back centuries.

In colonial New England, and before that in Europe, couples were required to announce their impending nuptials so that anyone with objections could come forward. That practice gave rise to the marriage license, which allowed authorities to ensure that people about to wed were of the proper age and not already married.

In an effort to prevent rushes to the altar, American states began to impose waiting periods in the early 20th century. * * *

Over time, New York and other states also began to require various forms of medical testing for couples seeking to get married. From 1938 to 1985, New York required that couples be checked for syphilis, and during the 1970s, officials sought to test for gonorrhea, too, before abandoning the idea.

During the Vietnam War, New York temporarily suspended the waiting period for members of the armed forces. Around the same time, however, some lawmakers concluded that the three-day waiting period was not enough, and in 1970, the Legislature extended it to 10 days. The state returned to the three-day period in 1981 and shortened it to 24 hours in 1985, the same year it stopped requiring a blood test.

What about Indiana? Here, on the website of the Hamilton County Clerk's Office, are the requirements, including:
Indiana Residents must obtain a license in the county in which at least one of them resides. This will allow you to be married anywhere in the State of Indiana.

Out of state residents must obtain a marriage license in the county in which the marriage will be performed.

Both applicants must apply for their license in person at the same time.

The State of Indiana no longer requires you to present a blood test.

Marriage license can be issued on the same day of application. There is no legal waiting period to obtain a marriage license and no witnesses are required.

Once issued a marriage license is valid for 60 days

Posted by Marcia Oddi on Tuesday, July 12, 2011
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Tameka Maria Redding v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 12, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Polygamist, Under Scrutiny in Utah, Plans Suit to Challenge Law"

John Schwartz reports today in the NY Times in an interesting story that begins:

Kody Brown is a proud polygamist, and a relatively famous one. Now Mr. Brown, his four wives and 16 children and stepchildren are going to court to keep from being punished for it.

The family is the focus of a reality TV show, “Sister Wives,” that first appeared in 2010. Law enforcement officials in the Browns’ home state, Utah, announced soon after the show began that the family was under investigation for violating the state law prohibiting polygamy.

On Wednesday, the Browns are expected to file a lawsuit to challenge the polygamy law.

The lawsuit is not demanding that states recognize polygamous marriage. Instead, the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses.

NPR's Morning Edition today also has a story, "'Sister Wives' Family To Challenge Anti-Bigamy Law," by Barbara Bradley Hagerty. It begins:
The latest episode in Sister Wives is playing out in the courtroom, not on cable. On Wednesday, the Brown family — the husband, four wives, and 16 children who star in the reality TV show — plans to file a lawsuit in federal court in Utah. The family members say the state's anti-bigamy law is unconstitutional and that Supreme Court precedent backs them up.

Posted by Marcia Oddi on Tuesday, July 12, 2011
Posted to Courts in general

Ind. Decisions - "School shooter awaits sentence 16-year-old confesses to attempted murder, faces 20-50 years in adult prison"

Carrie Ritchie of the Indianapolis Star has fairly comprehensive coverage of yesterday's somewhat confusing outcome. Her is a quote from near the end of the long story:

[Michael Phelps' attorney, Steve Litz] had previously said his client was guilty of the five other charges he faced but had planned to fight the attempted murder charge because, he said, Phelps didn't intend to kill Jackson.

Instead, Phelps on Monday confessed that he was guilty of the most serious of his six felony charges, attempted murder, a Class A felony.

Litz said he will now file an appeal that argues Phelps should not have been tried as an adult. If Phelps had taken a plea deal -- instead of going to trial -- he wouldn't have been able to appeal his waiver into adult court.

Litz said their strategy changed late last week but declined to say why.

"It's about what Michael wants to do," he said, "and he made the decision to handle the case the way it was handled."

Here are quotes from Charles Wilson's AP coverage:
Sixteen-year-old Michael Phelps softly answered “Yes, sir,” when defense attorney Steven Litz asked him if he had intended to kill 15-year-old Chance Jackson in the March 25 shooting at Martinsville West Middle School. A few moments later, prosecutors dropped all charges but attempted murder, the one count on which Morgan Superior Court Judge G. Thomas Gray found Phelps guilty. The trial lasted 15 minutes.

“This was essentially a de facto guilty plea,” Litz told reporters later.

Litz said that by not formally pleading guilty, Phelps reserves the right to appeal the decision to try him as an adult, as well as whatever sentence he receives at a hearing set for Aug. 12.

Reporters and spectators gathered in the second-story courtroom in downtown Martinsville expecting a five-day trial. The first hint that things might not go as expected came when both sides waived opening arguments and Prosecutor Steve Sonnega called Jackson as his only witness.

The soft-spoken teen, who wore a white dress shirt, said Phelps confronted him just inside a school entrance and asked him why he’d been avoiding him and if he wanted to fight, then pulled out a gun and shot him twice in the abdomen.

The prosecution then rested, and Litz called his only witness, Phelps, who made his on-stand admission.

Sonnega then dropped five of the six counts against Phelps, leaving only the attempted murder charge, and Gray found him guilty. Phelps had waived his right to a jury trial July 1 when several jurors in Clay County — where they were selected due to publicity in the Indianapolis media market — said they believed Phelps was guilty.

Litz, who had steadfastly maintained that Phelps hadn’t meant to kill Jackson, wouldn’t say what had happened to change the situation. After conferring with the judge and prosecutors, officials decided the quick trial was the best option.

Posted by Marcia Oddi on Tuesday, July 12, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Law - More on “Today’s headline is tomorrow’s legislation”

Updating this ILB entry from July 8th, Ilya Somin had a worth-reading post yesterday on The Volokh Conspiracy. A few quotes:

The recent controversial acquittal of Casey Anthony has stimulated efforts in many states to enact “Caylee’s Law” as a response. The law would require parents to report a missing child to the authorities within 24 hours, and the death of a child within 1 hour. If they fail to do either, they would be guilty of a felony (a federal one if the law is enacted by Congress). * * *

This is not the first time that a highly unusual but much-publicized case has led to this kind of overreaction. Consider the dubious “zero tolerance” policies enacted after Columbine or Megan’s Law, enacted in reaction to a rare case of child rape by a stranger. * * *

It seems likely that political ignorance is an important part of the story here. The public sees the high-profile case, and has a knee-jerk desire to “do something about it.” Most voters don’t realize how rare such cases are, and also know very little about the potential downsides of proposals like these. And, because political ignorance is rational, few will take the time and effort to investigate the evidence and deliberate carefully before forming an opinion. For their part, politicians hungry for votes and activists hungry for media attention are more than willing to cater to the public’s demands.

Posted by Marcia Oddi on Tuesday, July 12, 2011
Posted to Indiana Law

Ind. Law - Expired FSSA provisions now added back to online Indiana Code

For background, start with this ILB entry from July 10th, headed "More on: General Assembly mistakenly repeals FSSA, effective June 30, 2011."

As I wrote in this ILB entry from July 9th:

What was in those expired chapters?

That is not so easy to find out, because each year the General Assembly updates the online Indiana Code, leaving no trace of what was in effect before. This has occurred year after year, despite years of urging by myself and others to keep older versions of the Indiana Code online, particularly since they are not readily available to the public in printed sets.

The ILB has located the language of the chapters as they existed before their repeal on June 30, 2011. Here is an outline:

Title 12. Human Services

Article 8. Administering Family and Social Services

Chapter 1. Office of Secretary of Family and Social Services (contains 15 sections, with Sec. 1 beginning ...)

Sec. 1. (a) The office of the secretary of family and social services is established.
(b) The office of the secretary includes the following:
(1) The secretary.
(2) Each office.
As added by P.L.2-1992, SEC.2.
Chapter 2. Family and Social Services Bodies

Chapter 6. Office of Medicaid Policy and Planning

Chapter 8. Divisions and Directors

The entire content of each of these chapters has been been eliminated from the statutes.

Now they are back! When I checked the online Indiana Code this morning, I found that the expired provisions are back. Here, e.g., is IC 12-8-1.

Each section is preceeded by this caveat:

Revisor's Note: IC 12-8-1-10 provides for the expiration of this chapter on June 30, 2011. P.L.153-2011, SECTION 20 repealed IC 12-8-1-10 effective July 1, 2011. The Governor's Executive Order 11-08 provides for the continued operation of FSSA and its various offices and divisions.
I am of mixed minds about this. Yes, the text of the expired law should be made available somewhere. As I pointed out in the earlier entry, there is no way for the public to locate any expired or repealed Code provisions online, because the General Assembly only posts the current copy of the Indiana Code.

Furthermore, the online Indiana Code is not official, and one should rely on it with that caveat.

But still, putting the expired provisions back online in the Indiana Code, based on a Governor's Executive Order?

Posted by Marcia Oddi on Tuesday, July 12, 2011
Posted to Indiana Government | Indiana Law

Ind. Gov't. - "The irony is that while many sunset provisions were unnecessary, a thorough review of the FSSA would have truly been in order this year – exactly as the original proponents of sunset legislation envisioned"

A FWJG editorial today makes the point that a Sunset review of the FSSA this year would have been a very good idea:

The real issue goes back decades, to the mid-1970s, when establishing “sunset legislation” became a fad among state legislators. Laws, policies, even state agencies would expire unless lawmakers periodically voted to continue them.

As the state’s largest agency, you would think a review of FSSA would have been an important function in the 2011 legislative session.

You would be wrong.

Even though reviewing whether FSSA should exist in its current form is a timely and worthwhile endeavor. The agency, after all, has been the subject of much criticism, and many in the social service/health care communities question whether the agency is simply too big and unwieldy.

Even though this is the agency that gave Hoosiers the infamous failed, multi-million dollar contract to privatize some welfare services. * * *

Indiana lawmakers – like those in about half the states – jumped on the sunset bandwagon years ago and then failed to follow through.

The irony is that while many sunset provisions were unnecessary, a thorough review of the FSSA would have truly been in order this year – exactly as the original proponents of sunset legislation envisioned.

Instead, lawmakers simply voted late in the session without any substantive debate to continue the agency – and couldn’t even get that right.

For background, start with this ILB entry from July 10th, headed "More on: General Assembly mistakenly repeals FSSA, effective June 30, 2011."

Posted by Marcia Oddi on Tuesday, July 12, 2011
Posted to Indiana Government

Ind. Courts - "Court's gag order on Choate case far-reaching"

Susan Brown reported last evening for the NWI Times:

CROWN POINT | Lake Criminal Court Judge Diane Boswell's order "gagging" people and agencies involved in the Christian Choate case may be as unusual as the case itself. * * *

In the swell of publicity surrounding the life and death of the 13-year-old, Boswell appears to have raised the bar. A gag order typically is issued to remind legal professionals of their duties under their ethical code of conduct and to ensure a fair trial.

The emergency order, which was made public Monday, was issued two weeks ago immediately before a news conference that the Indiana Department of Child Services had scheduled. It gags not only lawyers connected to the murder case against the boy's alleged killers but "in any case arising of the same or similar facts."

Gag orders typically prohibit attorneys and the parties in a pending lawsuit or criminal prosecution from talking to the media or the public about the case. The intent is to prevent prejudice from pretrial publicity that could influence potential jurors.

In addition to all officers of the court and their employees, the order also captures "all participants named in the discovery and the petition for gag-order."

In seeking the emergency order, lawyers for the prosecution and the defense wanted Lake Juvenile Court Judge Mary Beth Bonaventura and DCS to fall under the gag order by virtue of their being "occurrence witnesses."

The two-page order also details six examples of the kinds of statements that are prohibited, such as statements related to the character, credibility, reputation or criminal records of other suspects or witnesses -- or their expected testimony.

In another rare twist, court documents released Monday show prosecutors requesting subpoenas be served on The Times of Northwest Indiana and the Post-Tribune.

Prosecutors are seeking audio recordings of a Times interview with Christina Choate, the dead teen's older sister currently under juvenile jurisdiction in a custody case. In addition, prosecutors are asking the Post-Tribune to produce copies of a specific obituary and related comments published by the paper.

Here is the June 30th NWI Times story on the issuance of the gag order.

The NWI Times also has this June 24th post headed "Indiana Department of Child Services records released Friday reveal a history of abuse and neglect in the case of Christian Choate," that links to the IDSC document.

Posted by Marcia Oddi on Tuesday, July 12, 2011
Posted to Indiana Courts

Monday, July 11, 2011

Ind. Decisions - Another Indiana 7th Circuit opinion today

In Boimah Flomo v. Firestone Natural Rubber Co. (SD Ind., Magnus-Stinson), a 24-page opinion, Judge Posner writes:

This suit under the Alien Tort Statute, 28 U.S.C. § 1350, pits 23 Liberian children against the Firestone Natural Rubber Company, which operates a 118,000-acre rubber plantation in Liberia through a subsidiary; various Firestone affiliates and officers were also joined as defendants. The district court granted summary judgment in favor of all the defendants, but the plaintiffs have appealed only from the judgment in favor of Firestone Natural Rubber Company.

The plaintiffs charge Firestone with utilizing hazardous child labor on the plantation in violation of customary international law. The Alien Tort Statute confers on the federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The principal issues presented by the appeal are whether a corporation or any other entity that is not a natural person (the defendant is a limited liability company rather than a conventional business corporation) can be liable under the Alien Tort Statute, and, if so, whether the evidence presented by the plaintiffs created a triable issue of whether the defendant has violated “customary international law.” * * *

In short, we have not been given an adequate basis for inferring a violation of customary international law, bearing in mind the Supreme Court’s insistence on caution in recognizing new norms of customary international law in litigation under the Alien Tort Statute.

So the suit must fail, but for completeness we note two arguments by the defendant against liability that we reject. The first is that plaintiffs must exhaust their legal remedies in the nation in which the alleged violation of customary international law occurred. The implications of the argument border on the ridiculous; imagine having been required to file suit in a court in Nazi Germany complaining about genocide, before being able to sue under the Alien Tort Statute. What is true is that a U.S. court might, as a matter of international comity, stay an Alien Tort suit that had been filed in the U.S. court, in order to give the courts of the nation in which the violation had occurred a chance to remedy it, provided that the nation seemed willing and able to do that. Sarei v. Rio Tinto, PLC, supra, 550 F.3d at 831- 32. Liberia is not able.

And second, the defendant argues that the statute has no extraterritorial application, except to violations of customary international law that are committed on the high seas. Courts have been applying the statute extraterritorially (and not just to violations at sea) since the beginning; no court to our knowledge has ever held that it doesn’t apply extraterritorially; and Sosa was a case of nonmaritime extraterritorial conduct yet no Justice suggested that therefore it couldn’t be maintained. Deny extraterritorial application, and the statute would be superfluous, given the ample tort and criminal remedies against, for example, the use of child labor (let alone its worst forms) in this country.

To sum up, although we disagree with the district court’s ruling that corporations cannot be held liable for violating the Alien Tort Statute and we reject many of the defendant’s arguments, we agree with the judgment.

Posted by Marcia Oddi on Monday, July 11, 2011
Posted to Ind. (7th Cir.) Decisions

Law - "June Legal Jobs Economy Shows Biggest Decline this Year"

The WSJ Law Blog has the story, with plenty of links.

Posted by Marcia Oddi on Monday, July 11, 2011
Posted to General Law Related

Ind. Gov't. - More on: What happens when a state government shuts down

Updating our entry from last Thursday, two more interesting reports today on the impact of a state budget shutdown:

"Cautionary Lessons From State’s Shutdown" is the heading of this long story by Monica Davey in Sunday's NY Times. A sample:

If the outlines of a government shutdown are simple — politicians cannot agree on how to spend money, so everything stops — the details are not. Since Minnesota officially closed its doors on July 1, the deadline by which the state’s political leaders were required to settle on a budget for the fiscal year, officials here have found themselves wandering a new labyrinth.

With the broadest shutdown in state history entering its second full week and no sign of a compromise on the horizon, political leaders in Washington, facing their own standoff and looming deadline, may want to ponder Minnesota — one cautionary reminder, if on a smaller scale, from the nation’s middle. * * *

In Minnesota, carrying out a shutdown — and a relatively ordinary one, as these things go — has turned out to be a whole new, time-consuming government function, including convening the special hearings to weigh exceptions to the shutdown rules. The costs of closing (who knew it cost money to halt spending?) are themselves swiftly rising. And, puzzlingly enough, the shock of a shuttered Capitol, of 22,000 laid-off state workers and of barricaded state parks in the heart of Minnesota’s camping season seems, so far, not to have introduced urgency to the political negotiation.

"Shutdown? Minn. lawmakers still get paid," is the headline to this Politico story by Reid J. Epstein that begins:
Channeling mounting anger over the Minnesota government shutdown, the Star Tribune of Minneapolis printed a list of the 138 state lawmakers who are being paid while more than 22,000 state workers are out of work.

Posted by Marcia Oddi on Monday, July 11, 2011
Posted to Indiana Government

Law - "Law Schools Get Practical: With the Tight Job Market, Course Emphasis Shifts From Textbooks to Skill Sets"

Pastrick G. Lee has a story ($$) in today's WSJ that begins:

Looking to attract employers' attention, some law schools are throwing out decades of tradition by replacing textbook courses with classes that teach more practical skills.

Indiana University Maurer School of Law started teaching project management this year and also offers a course on so-called emotional intelligence. The class has no textbook and instead uses personality assessments and peer reviews to develop students' interpersonal skills.

The WSJ Law Blog (not $$$) has a followup entry from the same reporter.

Posted by Marcia Oddi on Monday, July 11, 2011
Posted to General Law Related

Courts - Can DOJ force you to give up computer password?

See this lengthy CNET story by Declan McCullagh that begins:

The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase.

The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.

Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution's Fifth Amendment, which broadly protects Americans' right to remain silent.

In a brief filed last Friday, Fricosu's Colorado Springs-based attorney, Philip Dubois, said defendants can't be constitutionally obligated to help the government interpret their files. "If agents execute a search warrant and find, say, a diary handwritten in code, could the target be compelled to decode, i.e., decrypt, the diary?"

To the U.S. Justice Department, though, the requested court order represents a simple extension of prosecutors' long-standing ability to assemble information that could become evidence during a trial.

The story includes a number of useful links.

Posted by Marcia Oddi on Monday, July 11, 2011
Posted to Courts in general

Ind. Decisions - "Judge blocks Indiana from cutting Medicaid Rx fees" [Updated]

Updating this ILB entry from July 9, which included a copy of Judge Pratt's order, John Russell of the Indianapolis Star is now reporting:

A federal judge has temporarily blocked Indiana from cutting the fees it pays pharmacists for dispensing Medicaid prescriptions by 38 percent.

Judge Tanya Walton Pratt of the U.S. District Court in Indianapolis ruled that the Indiana Family and Social Services Administration acted in a “premature” fashion when it cut the dispensing fee from $4.90 to $3 on July 1 before the reduction was approved by the U.S. Department of Health and Human Resources.

The judge also wrote that the reduction would cause many pharmacies to “continue to hemorrhage dollars” and affect their ability to continue providing Medicaid services.

“Obviously, this harm could trickle down to Medicaid patients who constitute the poor, the elderly, the disabled and families with children, many of whom reside in rural areas with a dearth of other pharmacy options within close proximity,” she wrote in a ruling handed down late Friday. She granted a temporary restraining order on the issue.

[Updated at 4:48 pm] Here is a link to the Community Pharmacies press release issued today on Judge Pratt's ruling. A quote:
CPI President Nathan Gabhart commented, “We are very pleased with the judge’s decision to stop the state from going further with this illegal cut. We were rebuffed by the FSSA in our attempts to negotiate this matter and went to court only as a last resort. Hopefully they will be more receptive to working with us to assure access for all Medicaid patients.”

Gabhart further noted, “By attempting to cut the current dispensing fee, the state is ignoring it’s own survey, conducted every two years. The latest survey, dated May 2011, shows that the weighted median cost for a pharmacy to dispense a Medicaid prescription is $9.21. Information used by the state in filing for their change came from their 2009 report, which is based on data that is three to four years old. There have been several significant changes in the marketplace in the past four years, which the state chose to ignore.”

Posted by Marcia Oddi on Monday, July 11, 2011
Posted to Ind Fed D.Ct. Decisions

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

In Bishop Harvey, Jr. v. Town of Merrillville (ND Ind., Van Bokkelen), a 14-page opinion, Judge Tinder begins:

Henry David Thoreau found solace when he lived near Walden Pond. Homeowners perhaps seeking the same from a small pond in the Innsbrook subdivision in Merrillville, Indiana, claim to have found anything but. They allege that the retention pond their lots abut is a haven not for tranquility but for algae and mosquitoes, a source of flooding and frustration rather than inspiration and insight. They feared that a proposed expansion of the subdivision would only exacerbate their problems with the pond, and they attempted to voice their concerns with Merrillville town officials during and after the subdivision approval process.

The disgruntled homeowners, most of whom are African American, claim that Merrillville refused to listen to them, with a town council member (also African American) allegedly turning his back to them on one occasion and slinging a racial epithet at them on another.

They also contend that Merrillville violated their Fourteenth Amendment equal protection rights by being more responsive to similar complaints lodged by white residents of another subdivision years later.

Twenty-one of the aggrieved Innsbrook residents obtained counsel and sought redress for the alleged equal protection violations against the Town of Merrillville (“Town”), sixteen individuals who worked for the Town in various capacities (collectively the “Town Defendants”), and the Town’s acting engineer (“Warmelink”) by filing suit pursuant to 42 U.S.C. § 1983 in the Northern District of Indiana. The Innsbrook residents also raised several state law claims against these and a collection of other defendants, a total of thirty-one in all. The Town and Town Defendants responded to the residents’ sprawling scattergun complaint by filing a counterclaim seeking a declaration that the Town was not obligated to maintain the retention pond.

Posted by Marcia Oddi on Monday, July 11, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Isaiah Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, July 11, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Cedric Lewis v. State of Indiana, a 5-page, 5-0 opinion, Chief Justice Shepard writes:

Appellant Cedric Lewis was convicted of unlawful possession of a firearm by a serious violent felon. He challenges the admission of the handgun found in his car and the appropriateness of his sentence. We affirm, concluding that the gun in question was not the product of a search and that the sentence is appropriate. * * *

“A 'search' involves an exploratory investigation, prying into hidden places, or a looking for or seeking out.” * * *

[Officer] Joson needed to speak with the passenger and lowered his head down to her level. This is a perfectly reasonable thing to do when speaking with someone in a car. In the process, he saw a gun that was plainly visible between the driver‟s seat and center console. As in Avant, Joson did not open any compartments, move any objects, or pull back anything to see the gun. It was just there.

Posted by Marcia Oddi on Monday, July 11, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending July 8, 2011

Ind. Decisions - Transfer list for week ending July 8, 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 July 8, 2011. It is two pages (and 30 cases) long.

Three petitions to transfer were granted:

  • United Parcel Service v. Indiana Dept. of Revenue - This was a Dec. 30, 2010 opinion by Judge Fisher, where the issue was: "whether, during the years at issue, UPS properly excluded from its Indiana corporate income tax returns the income of two of its affiliates because they were “subject to” the gross premium privilege tax (premiums tax) under Indiana Code § 27-1-18-2." The Tax Court reversed the DOR's "denial of UPS's claim for refund of corporate income tax for 2000 and its assessment of additional corporate income tax against UPS for 2001."

  • K.D., et al., Alleged to be C.H.I.N.S.; S.S. v. I.D.C.S. - This was a Feb. 15, 2011 2-1 opinion reversing the trial court. The dissent begins: "I do not believe the trial court violated Stepfather‘s right to due process when it declared his step-children to be in need of services based on their Mother‘s admission to the allegations in the amended CHINS petition, without hearing evidence from Stepfather following his denial of the CHINS allegations."

  • Marvin L. Ervin v. State of Indiana (NFP) - In this case the Court "Granted -Vacated opinion of the Court of Appeals, and Remanded to the Court of Appeals." This is the second time this case has been decided by the COA and sent back by the Supreme Court. See this Feb. 18, 2011 transfer list entry. Here is the 2nd COA opinion, from April 13, 2011. And here is the Supreme Court's order of July 7, 2011.
__________

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, July 11, 2011
Posted to Indiana Transfer Lists

Ind. Gov't. - "Indiana legislators will try different approach to restructuring criminal sentences"

Eric Bradner has a long story this morning in the Evansville Courier & Press on how two state senators are planning a different approach this year to dealing with Governor Daniels' sentencing proposal. Some quotes:

A year after the first stab at sentencing changes failed, two out-of-session legislative study panels are going to try again.

State Sen. Richard Bray, a Martinsville Republican, chairs the Criminal Code Evaluation Commission. His colleague, Republican Sen. Brent Steele of Bedford, is chairing the Criminal Law and Sentencing Policy Study Committee.

Combined, the two are tasked with once again taking an in-depth look at how Indiana sentences prisoners and proposing legislation that has a better chance of passing than the omnibus sentencing overhaul Daniels and others championed last year.

They'll do so, Bray said, by splitting the issues apart and putting them in separate bills to be introduced in the General Assembly's 10-week 2012 legislative session. That's a new approach, and one Bray said he hopes will give at least some pieces better chances of winning passage.

"Last time we put it all in one boat and it sank," he said.

The two panels include many of the same members, and Bray said he and Steele are dividing issues up to avoid overlap.

Right now, Bray said, his panel intends to tackle theft and drug sentences, while Steele's tackles sex-related sentences and could work on drugs, too.

Coming up next week is the easiest part: thefts. Proponents of sentencing law changes want "graduated" sentences that offer greater distinction between major and minor crimes.

"We should distinguish between shoplifting a pack of chewing gum and stealing a Mercedes," Bray said.

That will be the topic in Bray's panel on Wednesday. Steele's had planned to meet Thursday, but that hearing was pushed back by two weeks.

Trickier than thefts will be sex-related sentences.

"The sexual code is probably violated 50,000 times every weekend in the state of Indiana. We're trying to make sure that the people who get the most severe punishments are truly the pedophiles or people preying on others, and not just stupid teenagers," Bray said.

Perhaps the most controversial piece of the sentencing reform puzzle is related to drug crimes. * * *

Indiana's Department of Correction runs prison that are at nearly full capacity, which means without changes to the law, the only options that exist are building new prisons or releasing inmates earlier.

Also important, though, is convincing county prosecutors – and the Indiana Prosecuting Attorneys' Council, which lobbies for them – that such changes won't amount to a "soft on crime" approach that undermines local efforts.

There is much more in the long story.

Posted by Marcia Oddi on Monday, July 11, 2011
Posted to Indiana Government

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

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

From Sunday, July 10th, 2011:

From Saturday, July 9th, 2011:

From late Friday, July 8th, 2011:

Posted by Marcia Oddi on Monday, July 11, 2011
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

  • No oral arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 7/18/11):

  • No oral arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.



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

Tuesday, July 12th

  • 10:30 AM - In Re: The Stephen L. Chapman Irrevocable Trust Agreement: Carrie Chapman vs. Howard L. Chapman and Elizabeth W. Chapman, Trustees (02A03-1012-TR-624) - Trustees/Settlors Howard and Elizabeth Chapman, parents of Stephen L. Chapman ("Stephen"), filed a petition to reform the Stephen L. Chapman Irrevocable Trust to modify the date of distribution of trust assets to Stephen, and the Allen Superior Court granted the petition. Intervenor Carrie Chapman, wife of Stephen, appeals the trial court's decision, arguing that (1) the trial court lacked jurisdiction because the reformation petition should have been heard in the pending dissolution action that she previously filed against Stephen, and (2) the trial court erred when it granted the petition to reform the trust agreement. The Scheduled Panel Members are: Judges Kirsch, Najam, and, Mathias. [Where: Allen County Courthouse, Fort Wayne, Indiana]

Wednesday, July 13th

  • 11:00 AM - Kristine M. Bunch vs. State of Indiana (16A05-1007-PC-439) - Following a jury trial in 1996, Kristine Bunch was convicted of murder for a mobile home fire that took the life of her three-year-old son. In 2006, Bunch filed a petition for post-conviction relief, which was denied in 2010 following an evidentiary hearing. Bunch now appeals the denial of her petition for post-conviction relief, alleging advances in science invalidate the basis for concluding the fire and death resulted from arson; the State improperly failed to disclose exculpatory and impeachment evidence; and her trial attorney rendered ineffective assistance by failing to adequately challenge the State's expert testimony and eliciting otherwise inadmissible opinion evidence suggesting guilt. The Scheduled Panel Members are: Chief Judge Robb, Judge Najam, and, Judge Crone. [Where: Supreme Court Courtroom (WEBCAST)]

  • 1:30 PM - Lawane Chaney vs. Clarian Health Partners, Inc. (49A05-0905-CV-263) - On February 10, 2011, we handed down our decision in favor of Clarian Health Partners, Inc. in the purported class action Chaney v. Clarian Health Partners, Inc. By the time of the appeal, Chaney, the only purported class member, was no longer a party, but his former counsel, Ron Weldy, nevertheless proceeded with the case. The trial court had dismissed the case with prejudice for lack of a class representative but had also denied Clarian's request for attorney's fees. Weldy, purportedly on behalf of Chaney, appealed. We dismissed the appeal as to the denial of discovery and the dismissal of the case. And we affirmed the imposition of Trial Rule 37 sanctions against Weldy. We denied Weldy's petition for rehearing, and the supreme court denied his petition for transfer. This matter is now set for oral argument on Clarian's motion for appellate fees and costs under Appellate Rule 66(E). The Scheduled Panel Members are: Judges Najam, Friedlander, and, Bradford. [Where: Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 7/18/11):

Next Monday, July 18th

  • 11:00 AM - Shawnee Construction & Engineering v. Don C. Stanley, Jr. (02A04-1010-CT-610) - Did trial court err by granting partial summary judgment in favor of plaintiff even though the defendant did not assume a duty of care to the plaintiff an despite the fact that there were genuine issues of material fact. The Scheduled Panel Members are: Judges Baker, May, and, Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]

  • 1:00 PM - Thomas Kornelik v. Mittal Steel USA, Inc., et al (45A03-1011-CT-583) - May an employee that settles with a third party, without the consent of the employer/compensation insurance carrier, subsequently seek to reduce its lien arising under the Worker's Compensation Act. The Scheduled Panel Members are: Judges Baker, May, and, Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]

  • 2:00 PM - Joseph A. Kelley, et al, vs. Jagdish Patel, et al (79A02-1010-CT-1212) - After the death of William D. Feit, Jr. as a result of a motel fire, Joseph A. Kelley, the administrator of Feit's estate (the "Estate") filed suit against the motel's owners and the motel's liability insurer, Indiana Insurance Company. The Estate appeals the trial court's entry of summary judgment in favor of Indiana Insurance on the Estate's claim of spoliation of evidence. On appeal, the Estate raises the issue of whether it has an available third-party cause of action against Indiana Insurance for spoliation of evidence. The Scheduled Panel Members are: Chief Judge Robb, Judges Bailey, and, Crone. [Where: Court of Appeals Courtroom (WEBCAST)]

Next Tuesday, July 19th

  • 10:30 AM - John Fiederlein, M.D., vs. Alex Boutselis, M.D. and Steve Jones, M.D. (79A04-1010-PL-632 ) - John Fiederlein, M.D. filed a complaint against Alex Boutselis, M.D. and Steve Jones, M.D. alleging breach of contract, promissory estoppel, unjust enrichment, conversion, criminal conversion, interference with employment relationship, and fraud. The dispute arises in regard to an offer for Fiederlein to become a member in the medical practice where the parties were employed and which was owned by Unity Healthcare, LLC. Boutselis and Jones filed a counterclaim, requesting a refund of money they claimed was an advance paid in anticipation of Fiederlein's membership, which was never consummated. Fiederlein appeals the trial court's grant of summary judgment in favor of Boutselis and Jones as to all of Fiederlein's claims, except a portion of his unjust enrichment claim. He also appeals the trial court's denial of his motion for summary judgment on the counterclaim of Boutselis and Jones. Boutselis and Jones cross-appeal the trial court's failure to grant summary judgment in their favor as to all of Fiederlein's claims. The Scheduled Panel Members are: Judges Kirsch, Vaidik,and, Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]

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, July 11, 2011
Posted to Upcoming Oral Arguments

Sunday, July 10, 2011

Ind. Decisions - More on "Man Who Refused To Hand Over Arrest Video Acquitted: 66-Year-Old Man Took Video On Cellphone"

Remember this ILB entry from July 2nd. I've seen a lot of stories about police objecting to being recorded on cellphone videos.

So this long AP story today
from Oakland, California, that appears in the Gary Post-Tribune, is interesting. Here is a sample:

Oakland and hundreds of other police departments across the country are equipping officers with tiny body cameras to record anything from a traffic stop to a hot vehicle pursuit to an unfolding violent crime. The mini cameras have even spawned a new cable reality TV series, Police POV, which uses police video from Cincinnati, Chattanooga and Fort Smith, Ark.

Whether attached to shirt lapels or small headsets, the cameras are intended to provide more transparency and security to officers on the street and to reduce the number of misconduct complaints and potential lawsuits.

“First and foremost, it protects the officers, it protects the citizens and it can help with an investigation and it shows what happened,” said Steve Tidwell, executive director of the FBI National Academy Associates in Quantico, Va. “It can level the playing field, instead of getting just one or two versions. It’s all there in living color, so to speak.”

In Oakland, where the department is still under federal supervision because of a case in which four officers were caught planting drugs on suspects a decade ago, the cameras are like another set of eyes, said Capt. Ed Tracey.

From later in the story:
Officers are required to turn on their cameras for calls including traffic stops and possible searches. They are also required to download their video within a day and they are not allowed to edit or manipulate it. The video can be stored up to five years.

Posted by Marcia Oddi on Sunday, July 10, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - More on: General Assembly mistakenly repeals FSSA, effective June 30, 2011

Updating this ILB entry from Saturday, July 9th, quoting Niki Kelly's FWJG story, and this ILB entry posted later yesterday, where I explain "what (IMHO) exactly happened," Eric Bradner writes about the drafting error in this Sunday story in the Evansville Courier & Press.

Bradner's story is headed "Dissolving the state's largest agency was just a 'mistake.'" As you will notice, I have marked in bold some parts of the story I think deserve comment. The story begins:

INDIANAPOLIS — All of us make occasional mistakes when we're rushed.

We leave the garage door open. We forget to swing by the grocery and pick up milk. We misplace our keys, or shove a folder in the wrong desk drawer.

Minor annoyances. Nothing more, right? These things happen to everyone.

The thing is, there are a few professions where even small mistakes come with enormous consequences. Think police officers, for example, or surgeons.

When you work in the office responsible for drafting legislation for the Indiana General Assembly, your job means churning out hundreds of pages of legalese and analysis — drafting bills, helping lawmakers craft amendments, producing fiscal impact statements.

The smallest of mistakes well, you see where this is going.

Last week, Senate leaders discovered that one of the measures they'd passed this year accidentally repealed the Family and Social Services Administration.

It's Indiana's largest state agency, upon which some 1 million Hoosiers rely for Medicaid, food stamps and more. And under a new state law, it would be abolished.

The Fort Wayne Journal Gazette discovered the story, and learned that Gov. Mitch Daniels signed an executive order to keep the agency up and running Thursday night, as soon as he learned of the error.

The story is, state law sets dates for a host of things to sunset. An old law was going to have the FSSA, an expansive human services agency, sunset on June 30.

Nobody was seriously considering getting rid of the agency, and the General Assembly passed a measure that would repeal that sunset provision. Problem was, that measure was set to take effect July 1. In other words, under state law, the FSSA was already gone.

No one was actually affected by this error, and the governor's executive order effectively remedied it.

It's not the only mistake that's been made, though. Legislators have also discovered errors in new laws that govern project labor agreements and that allow felons to seal the records that show their checkered pasts.

These problems demonstrate what happens when the bill-drafting Legislative Services Agency, and the lawmakers responsible for the ideas LSA's lawyers put to paper, are rushed.

ILB comments:

First, note that what we are talking about here are drafting errors, mistakes. This is different from the earlier entry today about what happens when a legislator want to introduce a questionable, or blatantly unconstitutional, law.

This FSSA repeal is similar to another error, also reported by Niki Kelly of the FWJG, in a June 9th story:

A mistake in a bill meant to loosen construction wage requirements in Indiana will force all public works projects – regardless of the cost – to go through a process establishing wage rates.

Senate President Pro Tem David Long, R-Fort Wayne, said legislative leaders only recently discovered the error in House Bill 1216 that will affect state and local projects costing less than $150,000 for six months.

“There was a drafting error. It was not caught, and (the legislative services agency) has apologized to us,” Long said. “It should have been caught.”

Second, I highlighted: "No one was actually affected by this error, and the governor's executive order effectively remedied it." For a different take, see attorney Paul Ogden's entry this morning, headed "Governor Daniels Needs to Call General Assembly into Special Session To Fix Inadvertent Elimination of FSSA."

Third, I strongly disagree with the story's statement: "These problems demonstrate what happens when the bill-drafting Legislative Services Agency, and the lawmakers responsible for the ideas LSA's lawyers put to paper, are rushed." As pointed out in more detail in my analysis yesterday:

  • Four years ago, at the end of 2007, the very same laws expired and apparently no one noticed! There was no statutory basis for the FSSA for months, until the laws were restored, retroactively, by actions of the 2008 General Assembly. (I expect there is more to this story ...)

  • In the 2010 session, Sen. Pat Miller introduced SB 62, which was prepared by the select joint commission on Medicaid oversight. This means it was not a rush job, this was a study committee. It was a one section bill, and died in second house committee. From the digest:
    Removes the expiration dates for the office of the secretary of family and social services, the office of Medicaid policy and planning, the statutes concerning directors of divisions within family and social services (FSSA), and certain advisory committees under the FSSA statutes.
    SB 62-2010 would have repealed the same "sunset" provisions as were repealed this year. By its terms, the repeals would have taken effect July 1, 2010. That would have been okay, because these FSSA chapters would have not otherwise have expired until June 30, 2011. So, unlike what happened this year, they would not have expired before the repeals went into effect.

  • In the 2011 session, Sen. Miller introduced SB 331. One provision, SECTION 20, as drafted for introduction, contained the same repealer as the 2010 proposal. Although presumably no one was more rushed than usual prior to the 2011 session, the bill drafter retained the same July 1 effective day, but bumped it up from year 2010 to 2011 -- thereby leaving the fatal gap of one day between the expiration of the FSSA, and the repeal of the "sunset" provisions that effectuated the expiration.
So perhaps the hectic pace of the last days of this session cannot be blamed in the case of the inadvertent FSSA repeal, as much as a drafter's oversight, and an inadequate review process at the start of the session.

Posted by Marcia Oddi on Sunday, July 10, 2011
Posted to Indiana Law

Ind. Gov't. - What happens when a legislator want to introduce a questionable, or blatantly unconstitutional, law?

When I worked at the Statehouse many years ago, in jobs such as head of the public law division of the LSA, and as chief counsel to the Indiana senate, the rule was -- advise the legislator of the legal issues raised by his proposal, suggest workarounds if there were any. But ultimately, the question of whether to proceed was up to the legislator. The practice seems to be the same today.

As Tom LoBianco of the AP reports today, in a story headed "Legislative safeguards can't keep Indiana from court when contentious laws win approval":

INDIANAPOLIS (AP) — Indiana conservatives appeared to win major national victories with a trio of laws passed this year cracking down on illegal immigration, defunding abortion clinics and paying for children to attend private schools.

But rebukes from a pair of federal judges and a lawsuit challenging the constitutionality of the state's sweeping new school voucher law have raised questions about how proposed laws are vetted for legal issues before they get to a vote in the General Assembly.

Lawmakers ultimately decide how Indiana handles hot-button issues, but legislative staff try to raise red flags about clear constitutional violations or other possible missteps along the way, said Jeff Papa, chief of staff to Senate President Pro Tem David Long.

"It's not a hard science," he said.

A pair of federal judges placed temporary holds last month on two key victories for Republicans who control the General Assembly: a plan to block funds to Planned Parenthood of Indiana and portions of a new law that would have broadened police officers' ability to arrest illegal immigrants and blocked the use of foreign identification cards.

In granting a temporary injunction blocking part of the state's new immigration law, U.S. District Judge Sarah Evans Barker said the state's efforts "have proven to be seriously flawed and generally unsuccessful."

The Indiana State Teachers Association filed the most recent challenge to a state law at the start of the month, saying the plan to pay for students to attend private schools violates a clause in the state constitution mandating the state provide a "general and uniform System of Common Schools."

The story quotes blogger Doug Masson, who:
... used to work for Indiana's Legislative Services Agency, which does the grunt work of translating lawmakers' ideas and goals into legislation. LSA lawyers typically alert lawmakers if they spot something that is either unconstitutional or would violate federal law, he said.

Their job, Masson said, is not to make political judgments of whether an idea is good or bad, but to give lawmakers the lay of the land and let them decide whether to proceed from there.

In the past, moderate Republican leaders like Bob Garton, who used to head the Indiana Senate, would often keep hot-button issues like abortion locked away in committees, rather than put lawmakers through a grueling debate or get the state locked up in court, he said. * * *

Both parties in the Indiana House and Senate maintain their own legal counsel, who guide lawmakers on legal questions and often provide spot answers during contentious debates.

Working in conjunction with the LSA lawyers, the Republican and Democratic advisers try their best to catch obvious mistakes or possible pratfalls, Papa said.

But in the end, whether to pass a law is a political decision made collectively by the state's lawmakers, Papa said.

"They could ask for anything in the world to be drafted, whether it's a good idea, a constitutional idea, or a bad idea," he said. "Then it's up to the political process where you go from there."

Posted by Marcia Oddi on Sunday, July 10, 2011
Posted to Indiana Government

Ind. Courts - "When Judge Fran Gull recently took a 19-year-old drunk driver’s guilty plea, she asked the teen whether she knew her plea could affect her immigration status"

How the 2010 SCOTUS decision in Padilla v. Kentucky is being implemented in Indiana is the subject of a long Sunday story in the Fort Wayne Journal Gazette, reported by Rebecca S. Green. Here are some quotes:

When an Allen Superior Court judge now handles a guilty plea, among the questions posed to the defendant is: “If you are not a United States citizen, has your lawyer advised you of any immigration consequences of a guilty plea?” Gull said.

The warning is a trickle-down effect of the March 2010 U.S. Supreme Court decision in Padilla v. Kentucky.

In short, the ruling requires defense attorneys to warn their clients that a guilty plea could affect their residency in the country, regardless of whether they are naturalized U.S. citizens, permanent legal residents, visitors or illegal immigrants.

While the ruling puts the onus on criminal defense attorneys, local courts decided that such a process is best left to judges.

A Honduras native who served in the U.S. Army and lived legally in the U.S. for 40 years, Jose Padilla pleaded guilty in a Kentucky court to transporting a large amount of marijuana.

Because the offense involved drug distribution, Padilla was vulnerable to deportation. But his defense attorney advised him otherwise. Padilla pleaded guilty.

Padilla argued, when the case was heard by the nation’s highest court, that his lawyer’s failure to properly advise him of all the risks of pleading guilty was tantamount to ineffective assistance of counsel.

Had Padilla known of all the consequences, he would have potentially taken his chances with a jury trial.

The Supreme Court agreed.

“(W)hen the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear,” Justice John Paul Stevens wrote for the majority.

If a defendant is found to have had ineffective assistance of counsel, the entire conviction is put into jeopardy and could be overturned.

Potential immigration consequences are just some of the many issues criminal defense attorneys must take into consideration when they are advising their clients, said Joel Schumm, professor of law at the Indiana University School of Law-Indianapolis.

Other issues could include a person’s ability to serve in the military, possess a weapon or receive federal financial aid.

“You don’t necessarily know at the time of the plea what your client wants to do in the future,” Schumm said. “I think (the Padilla ruling) is important because it’s the U.S. Supreme Court making it clear that you have to be aware of these things.”

There is much more to the story.

Posted by Marcia Oddi on Sunday, July 10, 2011
Posted to Indiana Courts

Ind. Law - Repeal Indiana's public intoxication law

Debbie Harbeson of Sellersberg had this column in the July 7th New Albany News & Tribune, about the recent Supreme Court decision in Moore v. State. Some quotes from the long article:

SOUTHERN INDIANA — Let’s say you — or someone you care about — had a few drinks one night and, knowing it would not be a good idea to drive, decided to let a sober person take the wheel.

Did you realize you can still be charged with a criminal offense? It’s true. The Indiana Supreme Court just affirmed this in Moore v. State. * * *

There are several issues and concerns surrounding this ruling, one being the implications with regard to society’s strong push to prevent drunken driving by promoting the idea of designated drivers.

It’s not difficult to see possible problems when someone who is responsible enough to use a designated driver can still be charged with criminal behavior. * * *

This ruling clearly illustrates problems with laws such as Indiana’s public intoxication law. It’s a good example of unintended consequences, a peril that all written law is susceptible to and is one reason why the less laws we have, the better.

Indiana’s public intoxication law is horrendously vague and depends upon the arbitrary discretion of law enforcement, which means it is open to possible abuse.

Worst of all, this law makes criminals of peaceful people who are not harming others. Lysander Spooner made an excellent case way back in the 1870s when he said “vices are not crimes.” He writes, “Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another.”

When a law exists that can rightly be interpreted to say that one can commit a criminal offense even while sleeping in the passenger seat of a car, clearly we have a problem.

The column continues:
Indiana State Sen. Michael Young agrees that Indiana’s public intoxication law is much too vague and in the most recent legislative session, he authored Senate Bill 156. This bill added language to the law in an attempt to clarify the necessity of additional behaviors above and beyond merely being intoxicated.

It passed in the Senate, with local Sen. Ron Grooms voting for and Sen. Jim Smith voting against. The bill died in the House and Young says he will try again next year.

While it’s good to know some legislators seem to understand that criminal behavior should involve harm to person or property, I highly encourage Young to go further and push for the repeal of Indiana’s public intoxication law.

Adding language to bad laws merely complicates the issue even further and increases the likelihood of even more negative unintended consequences. Surely, Indiana has enough laws on the books for actual criminal behavior that law enforcement can use if necessary.

Other states have no specific laws against public intoxication and some specifically note that an intoxicated person is not committing a crime. To protect innocent individuals who have caused no harm to others, Indiana should do the same and repeal this law.

Posted by Marcia Oddi on Sunday, July 10, 2011
Posted to Indiana Law

Ind. Law - ILB's Legislative Research Shortcuts updated

The Indiana Law Blog's Legislative Research Shortcuts page, a dashboard for doing online research on the laws passed by the General Assembly, has been updated to include the 2011 session.

I rely on this resource for quickly tracking bill histories; I hope some of you have found it useful too. It can save you from clicking through endless screens to locate the information you need.

The shortcuts page may always be accessed from the right-hand column of the ILB, under the heading "Indiana Legal Resources."

Posted by Marcia Oddi on Sunday, July 10, 2011
Posted to Indiana Law

Saturday, July 09, 2011

Ind. Gov't. - More on: General Assembly mistakenly repeals FSSA, effective June 30, 2011

Updating this morning's ILB entry, what exactly happened?

Language from the 2009 budget bill, p. 367, SECTIONS 294 to 297, reads:

SECTION 294. IC 12-8-1-10, AS AMENDED BY P.L.113-2008, SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 10. This chapter expires January 1, 2010. June 30, 2011.

SECTION 295. IC 12-8-2-12, AS AMENDED BY P.L.113-2008, SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 12. This chapter expires January 1, 2010. June 30, 2011.

SECTION 296. IC 12-8-6-10, AS AMENDED BY P.L.113-2008, SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 10. This chapter expires January 1, 2010. June 30, 2011.

SECTION 297. IC 12-8-8-8, AS AMENDED BY P.L.113-2008, SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 8. This chapter expires January 1, 2010. June 30, 2011.

So on June 30, 2011, these chapters expired: IC 12-8-1, IC 12-8-2, IC 12-8-6 and IC 12-8-8.

The language intended by the 2011 session to keep them from expiring (contained in SECTION 20 of SEA 331), by repealing the language of the 2009 expiration provisions set out above, didn't go into effect until the next day, July 1st, 2011 -- too late. The laws had already expired.

What was in those expired chapters?

That is not so easy to find out, because each year the General Assembly updates the online Indiana Code, leaving no trace of what was in effect before. This has occurred year after year, despite years of urging by myself and others to keep older versions of the Indiana Code online, particularly since they are not readily available to the public in printed sets.

The ILB has located the language of the chapters as they existed before their repeal on June 30, 2011. Here is an outline:

Title 12. Human Services

Article 8. Administering Family and Social Services

Chapter 1. Office of Secretary of Family and Social Services (contains 15 sections, with Sec. 1 beginning ...)

Sec. 1. (a) The office of the secretary of family and social services is established.
(b) The office of the secretary includes the following:
(1) The secretary.
(2) Each office.
As added by P.L.2-1992, SEC.2.

Chapter 2. Family and Social Services Bodies

Chapter 6. Office of Medicaid Policy and Planning

Chapter 8. Divisions and Directors

The entire content of each of these chapters has been been eliminated from the statutes.

Why did these repealers exist in the first place?

Years ago, the General Assembly decided that agency laws should be reviewed every 7 years, and that the laws would automatically expire, unless affirmative action was taken to renew them for another 7 years. The 7 years has been altered by the General Assembly for some agencies to lesser periods, often because the decision has been delayed from year to year. Here, for example, is the history of the now repealed IC 12-8-1-10, as it existed in 2009:

Sec. 10. This chapter expires January 1, 2010.

As added by P.L.2-1992, SEC.2. Amended by P.L.153-1995, SEC.1; P.L.108-1997, SEC.2; P.L.7-2000, SEC.1; P.L.291-2001, SEC.212; P.L.83-2002, SEC.1; P.L.243-2003, SEC.3; P.L.234-2005, SEC.15; P.L.113-2008, SEC.2.

So now the Governor has taken action to reinstate FSSA by executive order (EO).

The EO states that it is clear that the repeal was a mistake, since the General Assembly also appropriated money to the agency and "enacted other legislation evidencing its intent that the agencies continue to carry out their mission and services." The Governor also asserts that he can create administrative agencies by executive order.

Can the Governor really do this, legally? It is doubtful. But will anyone effectively challenge it? It seems unlikely, and would be destructive.

Has anything like this happened before?

Actually, yes. And worse, no one knew for months.

But first, in 2010 Senator Pat Miller introduced SB 62, which would have taken care of the problem a year ago (except that it has the same problem). Its digest:

Synopsis: Removal of FSSA expiration dates. Removes the expiration dates for the office of the secretary of family and social services, the office of Medicaid policy and planning, the statutes concerning directors of divisions within family and social services (FSSA), and certain advisory committees under the FSSA statutes. (The introduced version of this bill was prepared by the select joint commission on Medicaid oversight.)

Effective: July 1, 2010.

The bill died in the House Rules Committee.

Here is the "and worse" ...

In 2008 the General Assembly enacted SEA 42 (PL 113-2008). SECTION 9 provided:

SECTION 9. [EFFECTIVE DECEMBER 31, 2007 (RETROACTIVE)] Actions taken under IC 12-8-1, IC 12-8-2, IC 12-8-6, and IC 12-8-8 after December 31, 2007, and before the passage of this act are legalized and validated to the extent that those actions would have been legal and valid if this act had been enacted before January 1, 2008.
Note the "retroactive to Dec. 31, 2007." This means these very same chapters that the Governor revived this week had expired the end of 2007 through legislative inadvertence, and had to be restored months later, retroactively, by actions of the 2008 General Assembly.

"And worse" also may apply because it seems no one learned from, or may even remember, what happened four years ago.

Posted by Marcia Oddi on Saturday, July 09, 2011
Posted to Indiana Government

Ind. Courts - "Paoli Peaks sues landowner's heirs over trees: Ski resort says dispute actually is about rent"

Bruce C. Smith reports today in the Indianapolis Star - Here are some quotes:

The trees on the hills of popular winter resort Paoli Peaks may be in danger.

Owners of land leased for part of the Southern Indiana ski slopes are threatening to harvest the trees in a rent dispute with the owners of Paoli Peaks.

The dispute came to light this week in a federal lawsuit filed by the owners of the resort, who claim the ski business would be severely damaged by the loss of the trees, which block the wind, help to protect the artificially created snow and increase the beauty of the rolling Orange County hills.

However, the operators of the ski business said the trees aren't really the point of the threat. The owners of land used for part of the ski resort want to raise the rent that was established by a lease signed more than 30 years ago, according to the resort operators.

"This isn't really about the trees, because they're not going to be worth that much," said Timothy D. Boyd, president of Peak Resorts, which owns Paoli Peaks.

Heirs of the late property owner Charles M. Weeks "have been after us for a long time to renegotiate the 100-year deal he signed," Boyd said.

According to the lease, the ski business is to pay rent of at least $10,000 a year or 1.5 percent of the operating revenues from the business.

It was a rate set at a time when winter skiing in Indiana was a new idea greeted with skepticism because natural snowfall is light and erratic. Since then, skiing in Indiana has become popular, and Paoli Peaks had nearly 100,000 paying visitors last season.

"They think now that it is a bad deal and they want someone to make it right. So, they've been running a guerrilla action against us," Boyd claimed.

The story today continues:

The latest incident began June 29 when, Paoli Peaks general manager Matthew Greiner said, members of the Weeks family came to the resort and called him on the phone to say the ski company equipment should be moved for the logging operation.

The lease says Paoli Peaks may remove trees in developing the slopes, then the cut timber belongs to Weeks. It does not say the landowner can cut trees or make other changes to the property.

Federal Judge Richard Young set a hearing for Aug. 31 on Paoli Peaks' request for an injunction to prevent harvesting the trees, giving the sides time to work out a compromise. Meanwhile, the trees are to remain uncut.

ILB: Here is a copy of the complaint, including the lease and other exhibits.

Posted by Marcia Oddi on Saturday, July 09, 2011
Posted to Indiana Courts

Ind. Gov't. - "In a stunning reversal, the state's utility consumer agency now says Duke Energy Corp. -- and not its ratepayers -- should shoulder more of $530 million in cost overruns at its coal-gasification plant in Edwardsport" [Updated]

Updating a long list of earlier ILB entries on Duke Energy, Alex Campbell and Heather Gillers report today in the Indianapolis Star in a story that begins:

"Duke should no longer have a direct and endless line of project funds supplied solely by the ratepayers," Barbara A. Smith of the Office of Utility Consumer Counselor told the state's regulatory body in a new legal filing.

She said new information filed with regulators shows "Duke's imprudent management" of the project, which has been plagued for months because of an ethics scandal.

Smith's testimony to the Indiana Utility Regulatory Commission comes as consumer advocates prepare for a second round of testimony and filings next week that could call into question other, earlier cost overruns. The filings will examine whether Duke's actions on the $2.9 billion project "constitute fraud, concealment and/or gross mismanagement," Smith said.

Tim Stewart, an attorney at Lewis & Kappes who represents Duke's industrial consumers, said it's a "reasonable assumption" that other cost overruns will be scrutinized.

The consumer counselor's about-face comes after its decision in September to sign off on an agreement that would have passed most of $530 million in cost overruns on to consumers.

The agreement fell apart in December after The Indianapolis Star published some of the hundreds of internal emails that showed a cozy relationship between Duke and state regulators. Duke agreed to reopen negotiations on the cost overruns after Duke's industrial customers complained that the emails had tainted the regulatory process.

[Updated at 11:25 am] The ILB has located a copy of Ms. Smith's testimony and has OCRed it. Here are some quotes:
I will begin by providing a brief regulatory history of Petitioner's Integrated
Gasification Combined Cycle ("IGCC") Project in Edwardsport Indiana
(hereinafter "the Project" or "the IGCC Project"). I will then overview and
introduce the OUCC witnesses. Finally, I will provide a summary of major
concerns related to the IGCC Project and offer the OUCC's recommendations on
Petitioner's requested relief. * * *

Q: Does the OUCC continue to support the IGCC project?

A: Some of the factors that initially led the OUCC to support the project remain,
such as Indiana's need for additional generation, the possibility of carbon
legislation, and the environmental benefits, as set forth in my May 15, 2007
testimony. However, recently factors have been brought to light that have a
significant bearing on this case, which have caused an increasing level of concern
for the OUCC. As stated above, the OUCC's testimony in this Phase will focus on
Duke's claim that its management of this project, since approval of its last
updated cost estimate, has been prudent.

Q: How does the OUCC's testimony address these concerns?

A: My testimony will provide an overview of the OUCC's concerns and
recommendations for the Commission's consideration. Mr. Anthony Alvarez
addresses the OUCC's concerns regarding Petitioner's revised cost estimates. Mr.
Robert James addresses issues surrounding Petitioner's mishandling of its grey
water problem. Mr. Wes Blakley discusses the OUCC's recommended regulatory
treatment in this case.

Q: What are the OUCC's primary concerns with the current status of this
project?

The OUCC's concerns include the excessive project cost mcreases and the
ongomg inaccurate project cost estimates, as well as the underlying reasons
thereof. As previously stated, the concerns outlined herein pertain to a prudence
review of Duke's conduct associated with those costs it is attempting to recover in
Cause No. 43114 IGCC 4.

Q: Does the OVCC have additional concerns? [Please explain]

A: Duke has not demonstrated any budgetary constraints on this project. There
appears to be a lack of responsibility or accountability on the part of those causing
these multi-million dollar cost overruns. In addition, there has been no evidence
presented to indicate that Duke management, or any other entity, has conducted
any kind of timely prudency review regarding these cost overruns. It remains
incumbent on Duke to demonstrate that these additional increased costs are
reasonable and necessary and have been prudently incurred, a burden Duke has
failed to meet in this proceeding. The overarching issue is more than simply a
justification of the cost overruns. The escalating costs have been borne solely by
ratepayers, with the benefits going to the shareholders. I will expand on each of
these concerns throughout the remainder of my testimony.

[More] This is Docket Number 43114-IGCC-4S1. Here is how to duplicate the search -- basically I went to the IURC's electronic document center, selected the "Document center" tab, then typed in "43114", asked for a list of subdocuments, selected "IGCC-4Si", and clicked "search." I got a long list, newest first.

Posted by Marcia Oddi on Saturday, July 09, 2011
Posted to Indiana Government

Ind. Gov't. - General Assembly mistakenly repeals FSSA, effective June 30, 2011

Niki Kelly of the Fort Wayne Journal Gazette has the great story today.

(ILB: The Governor reportedly revived the agency Thursday by executive order, but the ILB intends to look into that further, later today...)

From the story this morning:

Gov. Mitch Daniels signed an executive order late Thursday to maintain Indiana’s human services structure after realizing lawmakers accidentally eliminated the state’s largest agency in a bill that went into effect this month. (The ILB has located the Executive Order, 11-08.)

“It apparently was repealed as of June 30 in a drafting error,” said Jane Jankowski, spokesman for the governor.

The Family and Social Services Administration manages Medicaid and other major programs for Indiana’s poor, elderly and disabled.

Senate staffers brought the error to Daniels’ attention Thursday, and he quickly signed an executive order continuing the agency and its duties. Executive orders were used to establish and run the agency in prior decades before it was put into law, Jankowski said.

The executive order will hold until legislators can fix the mistake or the governor can issue an annual order.

The story then continues, recounting the litany of errors from this session that have been discovered so far:
Though possibly the most extreme example, it’s not the first time this year that legislation from the 2011 session was found to be flawed.

“We have had some clerical errors that seem to be more than I can recall in the past,” conceded House Speaker Brian Bosma, R-Indianapolis.

For example, a bill establishing wage rates for public construction projects accidentally deleted the minimum threshold for a six-month period, which could cost taxpayers more on small projects.

Numerous major education initiatives had errors that had to be fixed in the budget bill before lawmakers left town.

Federal judges have issued injunctions against both an abortion and immigration bill, while a voucher bill also faces a constitutional challenge.

And a new law giving felons a chance to seal their records likely needs to be tweaked to make it more consistent.

Bosma said the constitutional issues are unrelated because interest groups usually challenge voucher and abortion legislation around the country.

But he conceded to more mistakes overall and said leadership in the House and Senate is “addressing the issue” with the Legislative Services Agency, though he declined to elaborate. * * *

In the case of the FSSA mix-up, the point of Senate Bill 331 was to repeal a provision already in law that would have automatically eliminated FSSA – called a sunset. The sunset language was set for June 30. The bill that repealed the sunset provision went into effect July 1.

So technically, FSSA was eliminated minutes before the bill went into effect to save it.

Posted by Marcia Oddi on Saturday, July 09, 2011
Posted to Indiana Government

Ind. Courts - "EFF and Five News Organizations Ask Indiana Court to Protect Anonymity of Indy Star Commenter"

From a lengthy March 3, 2011 story by Mikel Livingston of the Lafayette Journal Courier:

A pair of recent court rulings out of Marion County could have widespread ramifications for news media outlets and the readers and viewers who post on their online forums.

In separate rulings, Marion County Superior Court Judge Scherry "S.K." Reid ruled that the Indianapolis Star and the Indiana Business Journal must turn over identifying information for Internet users who posted anonymous comments on online forums run by those news outlets.

Here is a list of the earlier ILB entries on this issue.

Add to that list this July 7, 2011 post on the Electronic Frontier Foundation (EFF) website, written by Marcia Hofmann:

EFF and five news organizations recently filed an amicus brief (pdf) urging an Indiana appeals court to block a subpoena seeking to expose the identity of an anonymous speaker who posted a comment on the Indianapolis Star's website. This is a case of first impression in Indiana.

The subpoena stems from an underlying lawsuit filed by the former head of Junior Achievement of Central Indiana, a non-profit whose mission is to teach children about business management and finance. Among other things, Jeffrey Miller alleges that Junior Achievement and two of its high-level officers defamed him by claiming that he misappropriated money from the organization.

After the Indianapolis Star published the article Junior Achievement Faces Questions, Audit on indystar.com, a reader anonymously posted a comment suggesting that the leaders of the organization might have mismanaged its finances. Miller fired off a subpoena to the Star seeking to unmask the poster. The newspaper is fighting the demand (ILB- this is the Star's brief, via the EFF) to protect the poster's anonymity. * * *

The coalition's amicus brief encourages the court to adopt strong protections for online anonymity. It also explains Indiana's long tradition of anonymous commentary on public affairs and highlights the state's strong constitutional protections for free expression.

Note: The ILB posted on March 3rd a copy of Judge Reid's brief Order Compelling Non-Party Discovery against the Indianapolis Star.

The ILB also would be pleased to post the other briefs and the trial court ruling(s) ...

Posted by Marcia Oddi on Saturday, July 09, 2011
Posted to Indiana Courts

Ind. Courts - Still more on: Community Pharmacies files to enjoin FSSA 38% dispensing fee reduction

Updating these ILB entries from July 3rd and yesterday, July 8th, 2011, federal Judge Tanya Walton Pratt yesterday filed this "Entry on Temporary Restraining Order" in the case of Community Pharmacies v. FSSA. From the Order:

Recently, the State used an emergency rulemaking procedure to lower the Medicaid dispensing fee paid to pharmacies from $4.90 to $3.00 – a 38% decrease (the “Fee Reduction”). The Fee Reduction went into effect on July 1, 2011. Plaintiffs argue that the Fee Reduction is in violation of federal Medicaid law and will cause irreparable harm. That is, not only will the Fee Reduction damage Plaintiffs financially, it could drive many pharmacies away from Medicaid services altogether, thus harming Medicaid patients. For the reasons set forth below, Plaintiffs’ Motion for a TRO (Dkt. 12) is GRANTED. * * *

Significantly, because the State is the Defendant in this matter, the Plaintiffs cannot recover monetary damages due to the sovereign immunity afforded under the Eleventh Amendment. [ILB - cites, re 11th Amendment, omitted] * * * If the Fee Reduction remains in effect, many pharmacies will continue to hemorrhage dollars, and will not be able to recoup those dollars in a garden-variety lawsuit. Further, logic dictates that the Fee Reduction will undoubtedly affect some pharmacies’ ability to continue providing Medicaid services, given the thin margins that existed even prior to the Fee Reduction. Obviously, this harm could trickle down to Medicaid patients who constitute the poor, the elderly, the disabled and families with children, many of whom reside in rural areas with a dearth of other pharmacy options within close proximity. For these reasons, the Court believes that Plaintiffs have met the irreparable harm requirement.

D. Balance of Harms and Public Interest

Both sides have compelling arguments on these factors. The State emphasizes that the Fee Reduction was enacted due to budgetary constraints. Therefore, if the Fee Reduction is enjoined, FSSA would fall short of the $212 million budget reduction mandated by the Indiana General Assembly. Plaintiffs emphasize that the balance of harms tilts in their favor because the Fee Reduction could cause pharmacies to close, employees to be laid off, Medicaid services to cease, and, as a result of the latter, serious complications for Medicaid patients. The Ninth Circuit has noted that when courts are faced with a conflict between financial concerns and preventable human suffering, they often “have little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.” Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983). Overall, the Court believes that the balance of harms tilts in Plaintiffs’s favor and that public interest analysis is effectively “a wash.” * * *

For the reasons set forth above, Plaintiffs’ Motion for a Temporary Restraining Order is GRANTED, thus temporarily enjoining Defendants from implementing and enforcing the Fee Reduction.

A preliminary injunction hearing is set for Aug. 24, 2011.

Posted by Marcia Oddi on Saturday, July 09, 2011
Posted to Ind Fed D.Ct. Decisions

Friday, July 08, 2011

Courts - More on: India's Supreme Court locates treasures worth $22 billion in the sealed vaults of a 16th century Hindu temple

Updating this ILB entry from July 5th, a long story reported by Vikas Bajaj in today's NYTimes is headed: "India’s $22 Billion Question: What to do With a Treasure?"

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Courts in general

Ind. Courts - "Incest charges refiled in ’02 Huntington case"

Rebecca S. Green reported July 7th in the Fort Wayne Journal Gazette:

Nearly 10 years after prosecutors dismissed a case against him, a father formerly of Huntington will be tried for incest after the case was refiled.

The man, who now lives in Wisconsin, is charged with two Class B felony counts of incest and two Class C felony counts of incest. The Journal Gazette is not naming the man because doing so would identify the alleged victim. The Journal Gazette does not identify victims of sex crimes without their permission.

In January, Huntington County Prosecutor Amy Richison filed the charges against the man after the victim said she wanted to again pursue the case. Prosecutors originally charged the man with incest in 2002. But in 2003, the victim, then in high school, recanted her claims that her father had been having sex with her.

According to court documents, the woman has continued to struggle with emotional difficulties and in late 2009 decided to reopen the case against her father. * * *

She told police she was pressured by her father and other family members to drop the case against him in 2002. She said her father told her he would pay her money from a legal settlement if she would tell police that it didn’t happen, according to court documents.

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Indiana Courts

Ind. Courts - "Jeffrey Weisheit likely to get new lead defense attorney on Friday"

This story is an interesting commentary on death penalty representation requirements in Indiana.

Mark Wilson reports in the Evansville Courier & Press:

A New Albany, Ind., attorney has agreed to step in as lead defense attorney in the death penalty trial of Jeffrey Weisheit, pending a judge's approval Friday.

Vanderburgh County Chief Public Defender Stephen Owens said Michael McDaniel has agreed to fill the vacancy left by the June 9 death of Weisheit's former lead defense attorney, Timothy Dodd. Owens is serving as second attorney in the case. Owens is traveling to Jeffersonville, Ind., today where Clark County Circuit Judge Daniel Moore will rule on appointing McDaniel. * * *

Indiana law requires two defense attorneys for death penalty cases involving the use of public defenders and dictates the required qualifications for both lead and second attorneys.

Owens said he and Dodd were the only death penalty-qualified defense attorneys in the county when former Vanderburgh County Prosecutor Stan Levco announced he would seek the death penalty against Weisheit in April 2010.

With Dodd's death, the judge was left with the option of seeking an attorney from another county. Lead attorneys in death penalty cases are required to have five years of experience, have tried five felony jury trials, been a lead or co-defender in at least one death penalty case and completed 12 hours of death penalty training within the past two years.

Second attorneys must have three years of experience, have tried three jury trials and completed the 12-hour training seminar.

There are plenty of experienced criminal trial lawyers in Vanderburgh County, including several with death penalty experience, Owens said.

"The sticking point is that those people did not keep the 12 hours of training requirement up to date," he said.

Attorneys must pursue the training at their own expense, he said. Also, while compensation for trying death penalty cases must meet a minimum $109 per hour rate in Indiana, it is below what they would bill in private practice and often eats into the time available for other work.

"You wake up thinking about it at 3 a.m., work on it nights and weekends," he said.

The Indiana Public Defender Council offers the training every two years so lawyers can maintain their certification, but if a lawyer wants to recertify in an off year they must travel to a seminar in another state.

Those factors have resulted in fewer attorneys maintaining their qualifications.

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Indiana Courts

Ind. Courts - "Judge vacates conviction in child molestation: Finds defense was deficient, orders father's release from prison"

Mary Kate Malone of the South Bend Tribune reported late last evening in a lengthy story:

SOUTH BEND - In a rare legal decision, a local judge has overturned a man’s 2003 conviction for molesting his 3-year-old son, citing new evidence that shows Brian Neirynck may not have received a fair trial.

Judge Jerome Frese on May 20 ordered the release of 45-year-old Neirynck from state prison, where he was serving a 30-year sentence.

Frese issued his order on the grounds that Neirynck’s court-appointed public defender, Brian May, was ineffective at his trial, and his performance likely affected its outcome, according to court documents.

In his 13-page order vacating Neirynck’s conviction, Frese described May’s “deficient” counsel, and his failure to obtain critical information and videotaped interviews that showed the young boy may have been “groomed specifically to testify against his father.” In one instance, the boy was given a “policeman ring” by a therapist to give him “power” for speaking with authorities, Frese noted.

“This conditioning of the state’s only direct witness - a child just turned six, who testified (more than a year) after the charged acts - constitutes a powerful basis for a defense theory,” Frese wrote. “None of this was presented to the jury.” * * *

Neirynck was sentenced to 30 years in prison by Frese in the summer of 2003.

Conviction fought

Neirynck filed his initial appeal immediately, but the Court of Appeals upheld the conviction in August 2004.

Alleging ineffective counsel, Neirynck then filed his petition for post-conviction relief, but the case sat dormant for several years.

It was not until December 2009, when Neirynck’s new attorney, Cynthia Carter, began filing motions on the post-conviction petition, that Neirynck’s case began to move forward.

In March of this year, Frese heard arguments from Carter and the local prosecutor’s office regarding the alleged inadequacy of Brian May’s performance and the post-conviction appeal.

Frese issued his ruling May 20.

Last month, the St. Joseph County prosecutor’s office filed a notice that it will likely appeal the order.

“All of the facts of the case were presented to the jury,” said St. Joseph County Prosecutor Michael Dvorak. “It is the prerogative of the jury to weigh all the evidence and assess the credibility of the witnesses. In 2003 they did that, and that was their verdict. We believe it was a correct verdict.”

If the state files an appeal, it will be brought by the Indiana attorney general, per state law. Dvorak’s office has been in talks with the attorney general about whether to proceed with an appeal, but the AG has not yet made a decision, according to the office’s spokesman, Bryan Corbin.

Judges rarely grant appeals like Neirynck’s, known as petitions for post-conviction relief. The measure is generally the last appeal option available to a defendant under Indiana law.

Neirynck declined to comment for this story, as did his attorney, Cynthia Carter. Frese, who presided over Neirynck’s trial, also did not return phone calls from The Tribune, and neither did Brian May.

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Ind. Trial Ct. Decisions

Not law but fascinating - "DNA is now DIY: OpenPCR ships worldwide "

Forgive me, but I was a science major, and love this article/ad that begins:

The eagerly awaited OpenPCR kit is now shipping! UPS picked up the first batch of kits and OpenPCRs are on their way to users in 5 continents and 13 countries around the world. For $512, every OpenPCR kit includes all the parts, tools, and beautiful printed instructions – you ONLY need a set of screwdrivers.

A PCR machine is basically a copy machine for DNA. It is essential for most work with DNA, things like exposing fraud at a sushi restaurant, diagnosing diseases including HIV and H1N1, or exploring your own genome. The guy who discovered the PCR process earned a Nobel Prize in 1993, and OpenPCR is now the first open source PCR machine.

And it began as a Kickstarter project.

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to General News

Ind. Law - "Lauren Spierer case: Legal issues on searches, witnesses, grand juries answered"

The Bloomington Herald-Times, usually $$$, has made all its Lauren Spierer stories freely available, including this one today by Rebecca Troyer that covers topics such as "Why aren’t they talking?," "Attorney-client privilege," "Can they be compelled to talk?," "What about a grand jury?," and "Whom and what can be searched?"

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Indiana Law

Environment - More on "'Dr. Beach' picks top 5 Great Lakes beaches; Indiana Dunes not mentioned"

Perhaps explaining the beautiful Indiana National Lake's omission from Dr. Beach's selections is this story today in the Gary Post Tribune, reported by Christin Nance Lazerus, headed "Beach water quality declining ."

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Environment

Ind. Decisions - 7th Circuit Illinois gun ordinance decision [Updated]

Rhonda Ezell v. City of Chicago, a 59-page opinion issued July 6th, authored by Judge Sykes, with a concurring opinion by Judge Rovner beginning on p. 51 of 59, was not covered by the ILB on Wednesday, but Nathan Koppel of the WSJ Law Blog has an informative entry today, headed "New Ordinance Allows Chicagoans to Fire Away."

[Updated 7/10/11] See also this post by Eugene Volokh.

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

Doe Corporation v. Lolita C. Honore, et al. is a 5-page opinion on a petition for rehearing. Judge Friedlander's writes:

In a published opinion, we reversed the trial court’s order granting a motion to dismiss on jurisdictional grounds Doe Corporation’s motion seeking a preliminary determination of law (PDL) regarding the validity of an opinion of the medical review panel (MRP), and remanded the matter to the trial court. Lolita Honoré, as special administratrix of the estate of Andrea Honoré (collectively the Estate) has filed a petition for rehearing requesting that we reconsider our decision. The Indiana Trial Lawyers Association (ITLA) has filed a motion seeking permission to appear as amicus curiae on the petition for rehearing in this case. We grant ITLA’s motion to appear on the petition for rehearing. Likewise, we grant the Estate’s petition for rehearing for the limited purpose of clarifying our opinion vis-á-vis the role of the Rules of Evidence in the Medical Review Panel process. We write to alleviate any confusion that may have been
caused by imprecise language in the original opinion. * * *

Our statement in the original opinion that “the MRP Chair failed to carry out his statutory duties and should have been sanctioned” for “allowing the nurse to opine on causation” suggests a conclusion that was unintended. Doe Corp. v. Honore, 2011 WL 15855328 *5 (Ind. Ct. App. April 27, 2011). We intended to express that it appears to us that the MRP Chair failed to carry out his statutory duties by declining to honor the agreement of the parties relating to a limitation on the content of the written panel opinion, an agreement he represented to them would further be honored by the MRP. The trial court, in that situation should be allowed to determine if a sanction is warranted for the MRP Chair’s failure to abide by the agreement after representing to Doe Corporation that he would do so, in turn causing Doe Corporation to forego seeking a PDL. The portion of our statement for “allowing the nurse to opine on causation” should have been further qualified by the phrase “in contravention of the parties’ agreement and the MRP Chair’s representations to them in that regard.” We affirm our opinion in all other respects.

In Stacey R. Huddleston, Jr. v. State of Indiana , a 9-page opinion in a case with a pro se appellant, Judge Barnes writes:
Stacey Huddleston, Jr., appeals the denial of his petition for post-conviction relief (“PCR petition”), which challenged his conviction for murder. We reverse and remand.

Huddleston raises two issues, one of which we find dispositive: whether Huddleston’s guilty plea to murder was invalid because he simultaneously protested his innocence.

NFP civil opinions today (2):

Ashley Storm v. Kyle Storm (NFP)

Rollander Enterprises, Inc. and Indy Investments, LLC v. H.C. Nutting Company (NFP)

NFP criminal opinions today (2):

Kelly Barngrover v. State of Indiana (NFP)

Jason L. Foltz v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Ind. App.Ct. Decisions

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

In John Logan v. Donna Wilkins (SD Ind., Lawrence), a 12-page opinion, Judge Williams writes:

John A. Logan claims that the defendants, who are local government officials and a private individual, conspired to deprive him of a mobile home park he owned in Indiana, in violation of his constitutional rights. Much of the defendants’ alleged wrongdoing occurred more than two years before Logan filed this lawsuit. Because Logan’s claims are subject to a two-year statute of limitations, we find that any claims arising from wrongdoing that occurred more than two years before this lawsuit was filed are time barred.

We also find that Logan failed to challenge on appeal the district court’s dismissal of the claims that were not time barred, and that he therefore waived any contention that the court erroneously dismissed those claims. Even if there had been no waiver, we find that Logan’s allegations do not give rise to a claim for conspiracy to violate any rights protected by 42 U.S.C. § 1983, as Logan claims.

Finally, we decline to exercise our power to remand this case to the district court to allow Logan to amend his complaint because Logan does not point to any additional facts that would cure the deficiencies in his complaint. Therefore, we affirm the district court’s judgment.

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Law - “Today’s headline is tomorrow’s legislation”

So writes Doug Masson today in this entry in his blog.

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Indiana Law

Courts - "Trial records at mercy of court reporters' performance"

The ILB has been compiling stories about lost or unfinished court transcripts (or in one case, "taken") for years.

For instance, "Unfinished transcripts put district court reporter behind bars," a Sept. 24, 2010 story from Michigan.

Here is a list of some earlier ILB entries.

Here is another, first noted in How Appealing, a "focus" story from the Texas Amercian-Stateman by Eric Dexheimer, headed "Trial records at mercy of court reporters' performance." Some quotes from the very long, July 3rd story:

It was the start of a vexing game of hide-and-seek that dragged on for nearly a year. Two months ago, all the lawyers and judges gave up trying to track down the official record that Currie, who could not be reached for this story, had made of what was said during the trial a year earlier.

It was a costly decision. No transcript meant that, legally, it was as if the original trial had never happened. The case would have to start all over again from scratch.

Lawyers say such snafus are uncommon. Yet their impact overshadows the frequency.

While judges are masters of their courtrooms and juries dispense justice, court reporters — who typically sit unobtrusively in front of the judge's bench motionless save for their hands — are like sous chefs and garbage men: simultaneously crucial and anonymous until their performance slips.

"The court," said Theilen, "is very dependent on its court reporters." Texas judges have gone as far as throwing tardy reporters behind bars to guarantee completion of an overdue transcript.

The Currie incident is the latest to highlight a quirk in the state's courtroom record keeping. In a system that is fastidious about its legal documents, in many instances the official record of what is said during a trial is produced, maintained and, according to some readings of the law, outright owned by individual workers who, like Currie, might not even be government employees. When a court reporter disappears, justice can grind to a halt.

"It's one of the dirty little secrets of our system," said John Delany, a former state district judge in Brazos County who has crusaded for two decades to change the Texas court reporting system.

More from the story:
Thanks to a growing nationwide shortage of court reporters, combined with a system of training programs that has struggled to adequately prepare new reporters (only four of the 70 graduating students at Texas' 12 schools this spring passed their certification tests), reporters can command generous pay.

The state's highest-paid county court reporter, in Dallas County, earns $93,300, according to The Texas Tribune's database of public employee salaries. Travis County's 33 staff court reporters collect between $66,500 and $82,000.

In rural Caldwell County, south of Austin, the highest-paid county employee is a court reporter. Her $75,740 annual salary is nearly double that of the highest-ranking official, County Judge Tom Bonn.

The salaries don't include additional fees earned for producing transcripts. According to Texas legislative testimony in 2006, it is not unusual for court reporters to earn $100,000 a year.

Ownership at issue

Perhaps the biggest curiosity of the court reporter system, however, is that, unlike other official documents generated by a court case, such as complaints and pleas, the verbatim notes of what occurred at trial effectively belong to the court reporter. * * *

Ownership also means reporters are permitted to charge fees — as high as $6 or $7 a page — to turn their trial notes into a written transcript. For reporters who are government employees, the income is on top of their public salaries.

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Courts in general

Environment - Closing Lake Michigan to Asian carp could harm Indiana business

That is the gist of this AP story today in the NWI Times.

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Environment

Courts - "Amid Stacks of Paper, ‘E-Court’ Is Finally in Session" in Manhattan

Long, interesting story in today's NY Times, from William Glaberson. Some quotes:

For the past year, New York State has for the first time been requiring lawyers in about 6,000 cases dealing with commercial disputes in the Manhattan courthouse to “e-file” their cases over the Internet. Clerks and judges then process the documents from the first gripe, through the spiteful arguments and on to the final rulings, all the while providing full public access — and all, at least theoretically, paperlessly.

Some courts in Westchester and Rockland Counties have followed Manhattan’s pilot project to require mandatory electronic filing over the last year. And last month the Legislature authorized a wide expansion of electronic courts to a broad array of civil cases and to courts in every borough and several upstate counties. New York is not yet handling criminal cases electronically. * * *

In his robing room off another big courtroom where he handles contract disputes, personal injury claims and other civil cases, Justice Paul G. Feinman said there were many benefits to the electronic court. One benefit, he said, was that he has worked on cases in any number of places with Internet access, including his mother’s house, his living room and Fire Island without having to haul pounds of documents with him.

Among its many bells and whistles, the court’s computer program automatically notifies all lawyers to a case when a document is filed by any participant. One result, Justice Feinman said, is that the age-old practice of bickering among lawyers about whether they received a copy of this or that is becoming a thing of the past.

Here is the NYS Courts electronic filing site.

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Courts in general

Ind. Courts - More on: Community Pharmacies files to enjoin FSSA 38% dispensing fee reduction

Updating this ILB entry from last Sunday (which includes the the complaint and the supporting brief, both filed July 1, 2011 in the Indianapolis federal district court), the Indianapolis Star now has the story, here.

Posted by Marcia Oddi on Friday, July 08, 2011
Posted to Indiana Courts

Thursday, July 07, 2011

Not law but interesting - "I got crickets"

After I heard this phrase twice today, I looked it up ....

Maybe this post will get crickets.

Posted by Marcia Oddi on Thursday, July 07, 2011
Posted to General News

Ind. Decisions - The purloined hotdog firing case

The COA opinion earlier today in N.K. v. Review Bd. (ILB summary here) (I have no idea why the Court used initials in the listing but not in the opinion itself) is already the subject of a brief 6NEW story. It begins:

An Indiana department store was not justified in firing an employee accused of stealing hot dogs after a company picnic, the Indiana Court of Appeals ruled Thursday.

The case involved a southern Indiana man appealing the denial of unemployment benefits.

Nolan Koewler was fired from the Dillard's department store in Evansville in July 2010.

Posted by Marcia Oddi on Thursday, July 07, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Christopher Hovis v. State of Indiana, a 7-page opinion, Judge Riley concludes:

At the time of Hovis’ guilty plea, existing case law supported a direct appeal of any perceived sentencing errors after a plea of guilty. Therefore, as we cannot allow Hovis to take a second, direct appeal, we dismiss his claim. Because we decide the case before us based on the cross-appeal, we do not need to address the issue Hovis raised in his appeal.
In N.K. v. Review Board, an 8-page opinion, Judge Bailey writes:
Marz reviewed a surveillance video and reported to the store manager that Koewler was a suspected hotdog thief. At a meeting with the store manager, Koewler admitted the truth of the allegation. A police officer was summoned, and the store manager advised Koewler that he had a choice: sign a statement that he stole two leftover hotdogs from the Fourth of July independence celebration for employees or spend the night in jail. Koewler signed a statement admitting theft. He was then discharged from his employment. * * *

The record reveals that employees had been offered hamburgers and hotdogs for consumption; it does not reveal that the rescission of this offer of celebratory food was in fact communicated to Koewler. Moreover, Marz’s testimony indicates that the “off-limits” hotdogs were those destined for a freezer. However, Koewler and Marz each testified that the hotdogs at issue here were retrieved from the refrigerator.

No finding of fact was made as to whether Koewler knew his reaching into the refrigerator and consuming two hotdogs was unauthorized. As previously observed, theft requires a knowing or intentional exertion of unauthorized control. The Board’s determination of the ultimate fact that Koewler was terminated for just cause as a hotdog thief is not reasonable. Striking the ALJ “finding of fact” which lacks evidentiary support, we conclude that the decision of the Full Board disqualifying Koewler from receiving unemployment insurance benefits is contrary to law. Reversed.

In Thomas A. Peel v. State of Indiana , a 6-page opinion, Judge Najam writes:
Thomas A. Peel appeals the trial court's denial of his motion to withdraw his guilty plea. Peel raises a single issue for our review, namely, whether the trial court abused its discretion when it denied Peel's motion. We hold that the court did not abuse its discretion in denying Peel's motion and, therefore, we affirm the court's judgment. * * *

Peel contends that the trial court abused its discretion when it denied his motion to withdraw his guilty plea. Specifically, Peel asserts that Indiana Code Section 35-35-1-4(b) does not apply to his motion to withdraw because when he made his motion the court had not yet entered judgment on his plea. We cannot agree. * * *

Accordingly, and contrary to his sole argument on appeal, Indiana Code Section 35-35-1-4(b) applied to Peel's motion to withdraw his guilty plea. Under the requirements of that statute, to withdraw his guilty plea Peel was required to tender a written, verified motion that presented specific facts to support the withdrawal of the guilty plea. “A defendant's failure to submit a verified, written motion to withdraw a guilty plea generally results in waiver of the issue of wrongful denial of the request.” Carter v. State, 739 N.E.2d 126, 128 n.3 (Ind. 2000). It is undisputed that Peel did not tender a proper writing to the trial court. As such, he has waived the issue of whether the trial court wrongfully denied his request.

NFP civil opinions today (1):

Rick W. Bagby, II v. Carla M. Bagby (NFP)

NFP criminal opinions today (3):

Vernon D. Hall v. State of Indiana (NFP)

Tyrone A. Thompson v. State of Indiana (NFP)

Donald L. Helton v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 07, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - What happens when a state government shuts down

We've had budget impasses in Indiana, along with speculation about what would happen if the impasse wasn't resolved and government actually had to shut down. See for example this ILB entry from May 25, 2009.

Now we have a real life example from Minnesota, replete with examples of things you wouldn't have thought of. 6News is running a story from CNNMoney that begins:

There won't be any happy hours at The Independent in Minneapolis during the government shutdown.

The restaurant's liquor license expired just as a budget impasse in Minnesota put most state operations on hold. So both the state licensing bureau and the eatery had to shut their doors Friday.

Here is a story from Politico that begins:
Already suffering from a recession and political gridlock that would make Washington blush, Minnesota is losing tens millions of dollars of revenue due to a government shutdown headed into its second week, the Associated Press reported.

Among the losses the state is incurring: $1.25 million daily in unsold lottery tickets, $1 million a week lost from unpaid state parks fees, $52 million a month in tax revenue not being collected because state auditors – like the rest of state government deemed nonessential – are out of work and up to $50,000 a week from closed tolled highway express lanes.

Add to that increased costs from delays at 100 road construction projects – which also involve private companies laying off employees scheduled to work on state jobs – that won’t be known until after the shutdown ends.

Minnesota Public Radio has this "FAQ on Minnesota's state government shutdown."

Posted by Marcia Oddi on Thursday, July 07, 2011
Posted to Indiana Government

Ind. Courts - "IUPUI’s Center for Criminal Justice Research lands $405,000 grant to review effectiveness of Indiana’s criminal justice programs"

That is the headline from a news release received yesterday (that doesn't seem to be available online) that begins:

Indianapolis—The Indiana Criminal Justice Institute (ICJI) has awarded the Center for Criminal Justice Research (CCJR) $405,450 for a project that will help improve the effectiveness of state-funded criminal justice initiatives.

The project will look at efforts financed by 10 state funding streams, compare those to efforts nationwide, and identify the characteristics of those that work best. “The goal is to help ensure the state’s allocation of criminal justice dollars is sound and based on cutting-edge research,” said principal investigator Thomas D. Stucky, Associate Professor and Director of Criminal Justice and Public Safety Programs at the Indiana University School of Public and Environmental Affairs (SPEA) at IUPUI, where CCJR is housed. Stucky added, “When this project is complete, the state of Indiana will better understand how to distribute its criminal justice dollars most effectively.”

The first stage of the two-year project will identify those types of programs that have been shown to be the most effective. The second stage will catalog existing criminal justice data to help make data-driven criminal justice decisions. A key component of this second stage will be to identify gaps in available data that limit the state’s ability to make evidence-based criminal justice decisions.

Mark Massa, executive director of ICJI, said, “We are turning to CCJR to synthesize the most current information available from a variety of resources nationwide as well as our own records here in Indiana. Going forward, this will help ensure that the state is making data-driven decisions when it distributes funds and establishes policies.”

Posted by Marcia Oddi on Thursday, July 07, 2011
Posted to Indiana Courts

Courts - "The Supreme Court closes the door to justice"

From the July 6th LA Times, an opinion piece on the SCOTUS by Erwin Chemerinsky, dean of the UC Irvine School of Law, that begins:

Has the Supreme Court lost faith in the American court system? That is a strange question to ask about the justices who sit at the top of the country's judicial hierarchy. But in case after case in the just-completed term, the court, usually in 5-4 decisions with the conservatives in the majority, denied access to the courts. Consider just a few of the examples ...

Posted by Marcia Oddi on Thursday, July 07, 2011
Posted to Courts in general

Courts - "Should the Government Need a Search Warrant to Track Your Car with GPS?"

From Time, an article by Adam Cohen, dated July 5, 2011, that begins:

The Supreme Court ended its term Monday with a high-profile ruling that violent video games are protected by the First Amendment, but a bigger technology decision could be looming. The court agreed to hear a case next term about when the government can put GPS devices on people's cars — which could produce one of the court's biggest privacy rulings in years.

Posted by Marcia Oddi on Thursday, July 07, 2011
Posted to Courts in general

Ind. Decisions - "Seventh Circuit rejects all attacks on acquitted conduct sentencing enhancements"

That is the heading to this July 5th post in the Sentencing Law Blog, on the 7th Circuit's July 5th decision in US v. Waltower.

Posted by Marcia Oddi on Thursday, July 07, 2011
Posted to Ind. (7th Cir.) Decisions

Law - Authentication of statutes, rules, opinions, etc.

As some readers may know, this topic has been a long-time interest and concern of the ILB. This June 18, 2007 ILB entry is a beginning, as is my June 2007 Res Gestae article, "Assuring Authentic Legal Information in the Digital Age."

Today the Law Librarian Blog has an entry headed "Freeing Digitally Conceived Text, Part 1: The Federal Government as Documentation Authenticator, FDsys as a Trusted Repository, and the GPO as a Bulk Distributor of XML Files."

Quoting the GPO: "Electronic documents pose a special challenge to the verification of their authenticity because they can be altered, which could lead to unauthorized versions of government content. GPO must assure users that publications available from GPO websites are as official and authentic as publications that have been printed and disseminated by GPO for 150 years and that trust relationships exist between all parties in electronic transactions. "

The GPO defines authentic content as "the complete and unaltered representation approved or published by the content originator or an authorized derivative with a trusted chain of custody to that representation. This definition creates a model for assuring the authenticity of electronic government information, regardless of changes in technology."

Here is a list of ILB entries
containing the word "authentication."

Posted by Marcia Oddi on Thursday, July 07, 2011
Posted to General Law Related

Wednesday, July 06, 2011

Ind. Courts - "St. Joseph County prosecutor, judges, sheriff receive bump in pay"

On June 17th the ILB posted this entry, that began:

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 result in St. Joe County is reported in this story today by Erin Blasko in the South Bend Tribune. Although she has it somewhat wrong:
SOUTH BEND — Local judges and prosecutors, along with the sheriff, received a pay raise this month thanks to Gov. Mitch Daniels.

Under Indiana law, if the governor adjusts pay for employees serving in the executive branch, judicial officers in the state are entitled to an equivalent adjustment.

Daniels did just that in April, including in the state budget a pay increase of 1.3 percent for executive branch employees as a way to "recognize financially the hard work" of those employees.

As a result, circuit and superior court judges here, as well as Prosecutor Michael Dvorak, his chief deputy and one of his other deputies, all received equivalent pay raises effective July 1.

Randall Shepard, chief justice of the Indiana Supreme Court, issued an "Approval of Statutory Adjustment," which officially approved the raises, on June 16.

Actually, this year the budget bill was written so that the state's judges and prosecutors would receive a pay raise equivalent to that received by executive branch employees only if the Chief Justice signed off on it. See the links at the beginning of this entry for the details.

As for the details of the raises, reporter Blasko writes:

Judges and prosecutors in the state earn the same amount, exactly $127,280 annually now with the raise. Locally, each also receives a $5,000 stipend each year from the county.

The judicial officers that received pay raises are all paid by the state.

Incidental to all of this, Sheriff Mike Grzegorek, who is paid by the county, also received a raise this month, increasing his annual salary from $125,647 to $127,280, or $1,633, the same as the prosecutor and judges.

By state statute, sheriff and prosecutor pay rises and falls together.

According to county Auditor Pete Mullen, Grzegorek’s raise is automatic, meaning it does not need to be approved by the council or board of commissioners.

In a fiscal impact statement issued in May, the Legislative Services Agency calculated the annual cost of the pay raises for state judicial officers at about $1.08 million in fiscal year 2012 and 2013.

As for appellate judges, according to this survey from the National Center for State Courts, as of Jan. 1, 2011 (i.e. before the raise), the salary of an Indiana Court of Appeals judge was $147,103, and a Supreme Court Justice, $151,328. This is about the same as the State of New York.

Posted by Marcia Oddi on Wednesday, July 06, 2011
Posted to Indiana Courts

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

Updating this ILB entry from May 31, 2011, here is reporter Laura Lane's followup story today in the Bloomington Herald Times ($$$). The headline: "Owen County woman permitted to bury husband at home." Here are some quotes from the lovely story:

SPENCER — Betty and Milo Blaker will be together for eternity there on the hillside near their simple house on Rocky Hill Road.

Tuesday morning, the Owen County commissioners cut through all the legal obstacles and passed an ordinance allowing Milo Blaker’s body to be moved onto their property, where a grave already has been dug.

And when her time comes, 83-year-old Betty will join him there.

The day before he died last March, Milo Blaker looked over at his wife and said, “I want to be buried up there on that hill by you,” Betty Blaker recalled.

So she dug a grave. * * *

The commissioners on Monday agreed to take title to a deed for a 20-by-22-foot piece of the Blakers’ property that can be viewed from their kitchen window. By agreeing to the cemetery, the county will now be responsible for maintaining the piece of ground forever.

“You need to be aware you are setting a precedent,” the county attorney warned before the vote. But the commissioners, who all three have supported Blaker’s quest, didn’t seem to care.

They wanted to do the right thing by an old woman who has spent her life quietly farming and taking in and caring for countless stray dogs.

“She’s lived here all her life, and this was a simple request,” Commissioner George Jennings said.

Betty Blaker will now get a state permit to exhume her husband’s body and bring it home for reburial. “He (Steve Fender) said he would make my casket, too,” she said. “But I told them not to be in any hurry.”

Posted by Marcia Oddi on Wednesday, July 06, 2011
Posted to Indiana Law

Law - "Minnesota Opens Bar Exam Somewhat To Unaccredited Law School Graduates"

Interesting post in Law Librarian Blog.

The ILB has the background, from Dec. 3, 2009.

Posted by Marcia Oddi on Wednesday, July 06, 2011
Posted to General Law Related

Law - "Immigration law sows farm woes"

The Evansville Courier & Press has an editorial today focusing on the new Georgia immigration law. A sample:

According to St. Petersburg Times columnist Bill Maxwell, himself from a family of farm workers, "Workers caught with phony documents could be fined up to $250,000 and get 15 years in prison — the same sentence for murder in Georgia."

Georgia's largely undocumented farm workers have quietly dropped out of sight and the large crews of workers that Georgia farmers rely on for their seasonal harvests are refusing to enter the state.

"Thanks to the resulting labor shortage, Georgia farmers have been forced to leave millions of dollars worth of blueberries, onions, melons and other crops unharvested and rotting in the fields," wrote the Atlanta Constitution-Journal's Jay Bookman.

"It has also put state officials into something of a panic at the damage they've done to Georgia's largest industry."

The state's agricultural commissioner estimates Georgia farmers will need 11,000 more farm workers over the rest of the season and they're not getting them. Attempts by desperate state officials to cajole the jobless and 2,000 unemployed criminal probationers into doing fieldwork have been almost comically ineffective. Once they get a taste of stoop labor in the crushing heat, they're gone.

Posted by Marcia Oddi on Wednesday, July 06, 2011
Posted to General Law Related

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

Updating this ILB entry from June 30th, here finally is a copy of hearing officer Judge Charles D. O'Connor's 15-page findings, conclusions of law, and recommendation in the Carl Brizzi disciplinary matter, file stamped June 28, 2011.

Posted by Marcia Oddi on Wednesday, July 06, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In J.L., Child Alleged to be C.H.I.N.S.; J.L. v. I.D.C.S. , a 20-page opinion, Judge Riley writes:

Mother raises four issues on appeal, which we consolidate and restate as the following two issues: (1) Whether the trial court erred when it determined that Ju.L. and Je.L. were CHINS pursuant to a statute not cited in the CHINS petition; and (2) Whether the trial court erred in its findings of fact and conclusions of law. * * * Affirmed.

NFP civil opinions today (2):

Nynthia Richardson v. BAC Home Loans Services L.P., et al. (NFP)

S.R. v. Review Board (NFP)

NFP criminal opinions today (6):

James W. Oldham v. State of Indiana (NFP)

Aaron Aaron v. State of Indiana (NFP)

Roy L. Harrison v. State of Indiana (NFP)

Douglas Mowry v. State of Indiana (NFP)

Patrick W. Scholl v. State of Indiana (NFP)

Robert Hinton v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 06, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Anthem stock-offering suit will go to trial"

Jeff Swiatek reports today in the IndyStar:

It's a go for trial in a class-action lawsuit by ex-policyholders of WellPoint Inc., as a judge allowed two claims against the health insurer to proceed but dismissed others.

There's ample evidence to hear negligence and breach of fiduciary duty claims against the Indianapolis health benefits giant involving predecessor company Anthem's initial stock offering in 2001, U.S. District Judge Tanya Walton Pratt ruled.

The ruling wasn't a total victory for the 757,000 plaintiffs, about a fourth of whom live in Indiana. The judge tossed out the plaintiffs' breach of contract claims. * * *

The judge's ruling clears the way for a jury to hear evidence at a scheduled June 2012 trial that Anthem's board and top executives underpriced the stock offering and used poor business judgment in handling it. * * *

A second lawsuit over the 2001 offering has been brought by policyholders who received stock.

WellPoint also is trying to get claims in that case dismissed before trial, which is set for December.

Swiatek's Sunday story, which was headed "The $1B question: Will WellPoint pay for predecessor Anthem's stock sale?" is still available here. Here is an earlier ILB post on that story.

Posted by Marcia Oddi on Wednesday, July 06, 2011
Posted to Ind. Trial Ct. Decisions

Environment - "'Dr. Beach' picks top 5 Great Lakes beaches; Indiana Dunes not mentioned"

See the story in the Chesterton Tribune. Sleeping Bear Dunes National Lakeshore in Michigan’s northwestern Lower Peninsula gets top score. Ranking high: "Lake Michigan’s Oak Street Beach in Chicago, No. 5."

Posted by Marcia Oddi on Wednesday, July 06, 2011
Posted to Environment

Ind. Law - "Defending Indiana’s new voucher program on constitutional grounds could well be just as tough as defending the immigration and Planned Parenthood laws already riddled by court rulings"

That from an editorial today in the Fort Wayne Journal Gazette. More:

Plaintiffs in the voucher suit, filed Friday in Marion County Superior Court, point to the Indiana Constitution in seeking a preliminary injunction against the Choice Scholarship Program. The program violates the provision requiring “a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all” by paying tuition for some children to attend schools that are not part of a uniform system, not without charge and not equally open to all, the lawsuit argues.

The lawsuit also points to the state constitution’s proviso that “no person shall be compelled to attend, erect or support, any place of worship, or to maintain any ministry, against his consent.” It notes that using public money to pay for Indiana students to attend religious schools “compels plaintiffs and other Indiana taxpayers, through their tax payments, to support such ministries and places of worship.”

The U.S. Supreme Court upheld a Cleveland voucher program in a landmark ruling in 2002. But the decision in Zelman v. Simmons-Harris cleared only a federal roadblock, not the constitutional provisions of the separate states. Voucher programs have been successfully challenged since then in Colorado, Florida and several northeastern states.

Plaintiffs note that the Indiana program, unlike those in Cleveland, Milwaukee and elsewhere, allows voucher schools to require scholarship students to participate in all aspects of the schools’ religious program.

“Indeed, the (voucher) statute specifically prohibits the (Indiana Department of Education) and other state agencies from regulating the ‘religious instruction or activities’ of participating private schools,” according to the lawsuit.

For more, see this July 1, 2011 ILB entry.

Gov. Daniels' response to the lawsuit is quoted in this story by Ken Kusmer of the AP; the headline is "1st salvo fired in Ind. school voucher court fight":

"There the union goes again, putting their financial self-interest ahead of the interests of children and Indiana's low-income families," Daniels said in a statement. "The bill was drafted from its inception with the state and federal constitutional law in mind."

Posted by Marcia Oddi on Wednesday, July 06, 2011
Posted to Indiana Law

Ind. Law - More on: "Criminals get second chance with new law"

Updating this ILB entry from July 4th, Mark Wilson has a good story today in the Evansville Courier & Press headed "Sealed records law not airtight." The story makes the point that records affected by the new law are not totally expunged; rather, access is restricted:

EVANSVILLE — A new law allowing Indiana residents with misdemeanor or low-level felony convictions to ask a judge to seal some of those records may obscure the offenses from prospective employers, but it will not interfere with law enforcement. * * *

Residents who successfully have records restricted can truthfully write on employment applications and other documents that they were not arrested or convicted of the crime, though there is a catch: People applying for the records restriction must not have been convicted of any other felonies in the years between the conviction and their request. * * *

The Evansville Police Department processes about 200 requests for certified criminal histories each month, said Sgt. Darren Sroufe, the records department commander.

“We do a lot, for a variety of reasons. Most are for employment, foster parents, housing placement applications, anything on the local level,” he said.

The department also does national criminal background checks for gun permit applicants within the city on behalf of the Indiana State Police.

Sroufe said the Evansville Police Department performed 2,187 criminal background checks in 2010, including 885 for gun permits. Sometimes, people even want to obtain their own records just for personal knowledge, he said.

Sroufe said law enforcement agencies still will be able to access the records. So, while a person convicted of a felony such as theft decades ago may be able to have the record sealed from public view, it still would send up a flag with police that would disqualify him from a gun permit.

The department charges those seeking criminal histories a $10 fee, plus a $2 notary fee, for a certified copy of the results. It does not cover convictions that occurred in other communities. It also doesn’t cover records of arrests, citations or criminal charges filed that did not end in convictions.

Those not wanting to pay the $12 can access the same conviction information free, using the county’s Court View computer program, via several monitors in a tiny room several doors down the hall from the County Clerk’s office. The only difference is whether it is a certified copy.

Posted by Marcia Oddi on Wednesday, July 06, 2011
Posted to Indiana Law

Ind. Decisions - "Prominent Gary attorney suspended from law practice"

Dan Carden of the NWI Times reports today:

INDIANAPOLIS | A longtime Gary defense attorney has been suspended from practicing law for at least six months for accepting payment from a client's father despite being appointed as the client's free public defender. * * *

According to court records, Relphorde was appointed public defender for a client in jail. Court-appointed public defenders are paid by the county.

Relphorde nevertheless accepted a $1,000 fee from the client's father who did not know Relphorde already had been appointed public defender for the client, according to court records.

The five-member court noted this is the fourth time the veteran trial attorney has been punished for similar misconduct and said Relphorde will be reinstated "only if he meets the most stringent requirements of proving by clear and convincing evidence that his rehabilitation is complete and he can safely re-enter the legal profession."

Chief Justice Randall Shepard and Justice Steven David dissented from the court's discipline order saying "the penalty is insufficient for the offense."

Here is the 2-page order. A quote:
Discipline: The parties propose the appropriate discipline is a 180-day suspension without automatic reinstatement. The suspension the Court would impose for Respondent's misconduct would likely be considerably longer had this matter been submitted without an agreement, especially considering Respondent's disciplinary history. We note, however, that regardless of the date on which Respondent is eligible to petition for reinstatement, reinstatement is discretionary and his petition would be granted only if he meets the most stringent requirements of proving by clear and convincing evidence that his rehabilitation is complete and he can safely reenter the legal profession. See Admis. Disc. R. 23(4)(b). With this in mind, and in light of the Court's desire to foster agreed resolutions of lawyer disciplinary cases, the Court now APPROVES and ORDERS the agreed discipline.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 180 days, without automatic reinstatement, beginning August 5, 2011. * * *

All Justices concur, except Shepard, C.J., and David, J., who dissent, believing the penalty is insufficient for the offense.

Posted by Marcia Oddi on Wednesday, July 06, 2011
Posted to Ind. Sup.Ct. Decisions

Tuesday, July 05, 2011

Ind. Decisions - More on: "Ogden Dunes wins battle to prevent homes being rented"

Updating this ILB entry from July 1st:

"Ind. Decisions - "Ogden Dunes wins battle to prevent homes being rented"" is the heading to this just-posted entry in Ogden on Politics about the Supreme Court's decision last week in Siwinski v. Town of Ogden Dunes.

Posted by Marcia Oddi on Tuesday, July 05, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: "Prank gone awry could land teen in prison: Experts question appropriateness of felony charge after student placed sex doll in school bathroom"

Updating this entry from this morning, Jon Murray of the IndyStar has now posted the 7-page charging document in the Rushville case against Tyell Morton.

Posted by Marcia Oddi on Tuesday, July 05, 2011
Posted to Indiana Courts

Courts - More on "Dictionary Citations by SCOTUS Justices Rise Sharply"

Updating this ILB entry from June 15th, which quoted an Adam Liptak NY Times column about Supreme Court justices citing dictionary entries as authority. the ILB has located much more information.

Sara Israelsen-Hartley of the Salt Lake City Deseret News wrote a lengthy, fascinating story that was published earlier, on March 13, 2011, headed "U.S. Supreme Court uses corpus created by BYU professor Mark Davies: His billion-word online corpora aid study of language, culture." Read it. Here is how it begins:

PROVO — Linguists like to joke that you can tell a lot about a word by the words it hangs out with. And 50 years ago, "gay" was hanging out with "grave" and "brilliant" while "sex" palled around with "hygiene" and "conflicts." Today, the words "gay" and "sex" have much more controversial companions, illustrating not only a change in the grammatical and lexical structure of the English language, but a cultural shift as well — all seen through the study of words.

"I love linguistics," said BYU linguistics professor Mark Davies. "I love looking at how and why language changes, but I'm equally as interested in history and culture, and language can serve as a beautiful window on that."

Davies, regarded by many in the linguistic community as a standard setter, has created a window of more than 1 billion words, gathered from books, magazines, newspapers, academic sources and transcribed interviews.

His corpora, plural for corpus, the Latin word meaning a body or collection of writings used for analysis, are the largest, free collections of English words on the Internet, searched by tens of thousands of users each month, from linguists, teachers, students to district Judges and Supreme Court justices, all trying to make sense of this odd language we call English.

The story talks about "corpora in the courtroom":
Thirty years ago, when lawyers or judges disagreed on a word's meaning, there were two solutions: dictionaries or telephone surveys.

"Both of them are unreliable," said BYU linguistics professor and department chair William Eggington. "Dictionaries are usually way behind the times and usually don't cover the full range of the meaning of the word, and in a dictionary, there's no way to measure frequency, how often this meaning is used. And surveys, they're hit and miss. But then the corpus comes along and changes everything."

Suddenly, instead of relying on stale definitions or unscientific survey methods that left room for doubt, judges and attorneys could turn to hefty databases that painted a much more accurate picture of words in context, he said.

But not so fast. A second story from reporter Israelsen-Hartley, published three months later, at the same time as the NY Times story, is headed "Increase of dictionaries in the courtroom causing concern." A quote:
[A]n article in Monday's New York Times pointed out that eight times during the month of May, justices pulled out a dictionary to look up words like "prevent," "delay" and "report," and then cited those dictionaries in their decisions. * * *

As a Harvard Law school student, Kevin Werbach wrote 20 years ago that the increasing use of dictionaries in the courtroom was a problem.

"If a court relies on a dictionary to determine the meaning of a term, it should recognize that dictionaries have their own variations and biases," said Werbach, now a professor of legal studies at the Wharton School at the University of Pennsylvania. "And the courts should recognize that language evolves. We can see how a word was used in 1800, but that doesn't necessarily tell us what it means today, because the world is so different."

Thus, a better option than dictionaries is a corpus, argues Mark Davies, a BYU linguistics professor who studies words and how language changes.

A corpus is a body of words gathered from books, magazines, newspapers and academic writing within a set time period to show the evolution of words.

Davies has created several free, searchable, online corpora of more than 1 billion words that provide a fascinating look into history.

Rather than relying on one or even a shelf full of dictionaries, which were written by a few individuals, the massive collections of words show how the words are actually used in context.

Here is webpage providing access to a number of corpora developed by Mark Davies, Professor, Corpus Linguistics, Brigham Young University. Even better, this page. One of them is called the "Corpus of Historial American English." From the description:
COHA allows you to quickly and easily search more than 400 million words of text of American English from 1810 to 2009. You can see how words, phrases and grammatical constructions have increased or decreased in frequency, how words have changed meaning over time, and how stylistic changes have taken place in the language.
Back to the Liptak NYT story:
The justices have cited more than 120 dictionaries, which is suggestive of cherry picking.

"It's easy to stack the deck by finding a definition that does or does not highlight a nuance that you're interested in," said Mr. Sheidlower, the O.E.D. editor.

Justices who try to discern the original meaning of the Constitution sometimes consult older dictionaries, which makes sense given that usage may have shifted over time.

In a 1995 concurrence, for instance, Justice Clarence Thomas looked to dictionaries from 1773, 1789 and 1796 to determine what the framers of the Constitution meant by "commerce," a question now in play in the challenges to the recent health care law. (They meant, Justice Thomas found, "selling, buying and bartering, as well as transporting for these purposes.")

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."

This post in the Volokh Conspiracy, dated June 14, 2011, gives an example of the SCOTUS "cherry picking" dictionaries.

What about Indiana?
I checked with IU-Indy Law prof Joel Schumm, who responded:

The corpus idea is certainly a good one. Instead, it seems advocates and courts often just run for a dictionary that says what they want it to say and stop there. I think it's generally wrong to use Black's if the court is trying to give meaning to an undefined legislative term (most legislators are not lawyers) or address whether a term is unconstitutionally vague (fails to give notice to people of ordinary intelligence).

The Indiana Supreme Court agreed in one of my all-time favorite cases: "In our evaluation of the defendant's vagueness claim, which hinges upon how ordinary people understand statutory language, we prefer to consult standard dictionaries, not a specialized legal dictionary as cited by the State."
The opinion is Richard Brown v. State (June 22, 2007. The quote is from the top of p. 4.

Here are the results of a Google search of the Indiana Courts site for the word dictionary.

Posted by Marcia Oddi on Tuesday, July 05, 2011
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Larry E. Snell v. K-Industrial, LLC (NFP)

Kathy Atkinson v. Indiana Family and Social Services Administration (NFP)

NFP criminal opinions today (6):

Jasper L. Chastain v. State of Indiana (NFP)

John Battles v. State of Indiana (NFP)

Duron Reese Smith v. State of Indiana (NFP)

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

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

Claude R. Fisher v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 05, 2011
Posted to Ind. App.Ct. Decisions

Courts - More on "Kentucky judges can grant out-of-state minors permission for abortions, appeals court rules"

This long Jan. 16, 2011 ILB entry quoted a story from Andrew Wolfson in that day's Louisville Courier Journal. (The LCJ story itself is no longer available.)

This June 28th LCJ story, also by reporter Wolfson, begins:

The chief judge of the Kentucky Court of Appeals has asked state police to investigate who leaked a confidential abortion rights ruling to The Courier-Journal and whether criminal laws were broken in the process.

The newspaper published a story last January about the secret decision in which the court ruled 2-1 that minor girls from other states may ask Kentucky judges for permission to have abortions without their parents’ consent.

The court’s ruling, which reversed Jefferson District Judge David Bowles, was issued confidentially under a state law and court rules that allow girls to appeal such decisions anonymously. The newspaper obtained a copy of the decision, which identified the girl only by her initials.

Detective Vincent Schmitt of the state police special investigations unit asked The Courier-Journal Monday to disclose its source. But a reporter and the newspaper’s executive editor, Bennie Ivory, refused to release it, citing the state’s reporter shield law, which protects the identify of anonymous sources.

More from the long story:
The Court of Appeals had previously summoned Bowles and the lawyers involved in the case to a hearing at which they were forced to answer under oath whether they had released a copy of the opinion, according to several judges as well as Louisville lawyer Sheryl Snyder, who represents Amelia Adams, the attorney who won the appeal. * * *

Several Court of Appeals judges said that [Chief Judge Jeff Taylor, who wrote the majority opinion] was concerned about the leak in part because he feared the parents of the girl, who was from Indiana, might be able to identify her from her initials, which were not published in the newspaper’s story.

Judge Michelle Keller of Covington, who joined Taylor in the majority opinion, said that while the decision to request the investigation was Taylor’s alone and made without a vote of the court, “I have to respect the leadership of the court.”

But Snyder said that there was no reason to keep the substance of the opinion confidential as long as the girl’s anonymity was preserved.

“It seems to me that it contained important public information — that girls from other states have the right to come to Kentucky” for the hearings,” Snyder said.

If not for the newspaper’s story, Snyder and some judges said, other district court judges would never have known how the Court of Appeals ruled.

[HT to the KLB.]

Posted by Marcia Oddi on Tuesday, July 05, 2011
Posted to Courts in general

Ind. Courts - "Federal Judge Sarah Evans Barker presided over the naturalization ceremony in Indianapolis on Friday, July 1, 2011"

Here, thanks to the Indiana State Bar Association, are photos of last Friday's annual naturalization ceremony.

This is a festive event! Here is Judge Barker. Here is past ISBA President Chic Born, who welcomed the new U.S. citizens to Indiana and presented each of them with a personalized Canon of American Citizenship. Here is another cool photo.

Posted by Marcia Oddi on Tuesday, July 05, 2011
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending July 1, 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 July 1, 2011. It is one page (and 18 cases) long.

Three petitions to transfer were granted:

  • Hematology-Oncology of Ind., P.C. v. Hadley W. Fruits - This was an Aug. 18, 2010 COA opinion - ILB summary here. A combined oral argument on one aspect of the case was held Jan. 20, 2010: "The Court will hold a combined oral argument in these two cases that address, in part, whether attorney's fees and litigation expenses are recoverable damages under the Adult Wrongful Death Statute. The Court has not otherwise consolidated the appeals under Appellate Rule 38(B)."

  • Randy Horton v. State of Indiana - granted with opinion June 28, 2011. See ILB entry here.

  • Indiana Patient's Compensation Fund v. Beverly Brown, et al. - See this Sept. 17, 2010 ILB entry re damages authorized by the Adult Wrongful Death Statute (“AWDS”).
__________

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

Posted by Marcia Oddi on Tuesday, July 05, 2011
Posted to Indiana Transfer Lists

Law - More on the law school industry

See the entry here on the Law Librarian Blog, compiling recent reports.

Posted by Marcia Oddi on Tuesday, July 05, 2011
Posted to General Law Related

Courts - India's Supreme Court locates treasures worth $22 billion in the sealed vaults of a 16th century Hindu temple

Talk about proactive!

From the WSJ's India Realtime blog, some quotes from Margherita Stancati:

But if this news evoked images of a gung-ho archeologist on a daring expedition, you’d be on the wrong track. The extraordinary discovery was spearheaded not by Kerala’s own Indiana Jones but by fine legal minds of India’s Supreme Court. Treasure-hunting marks a first for India’s top court, which in recent years has raised its voice and expanded its policy reach on issues ranging from land acquisition, to black money to malnutrition – positions that have sometimes pitted it against elected officials.

Despite the Supreme Court’s enterprising spirit, it was difficult to see this one coming. The court dispatched a team of seven – former judges and temple staff among them – to open the temple’s secret chambers, the first of which was unlocked June 27. Of the temple’s six chambers, four have been opened so far. The remaining two are likely to be examined between Monday and Tuesday. * * *

The Supreme Court’s archeological venture came in response to a legal petition to audit the temple’s wealth that was filed as part of a dispute over who should administer the holy shrine.

Posted by Marcia Oddi on Tuesday, July 05, 2011
Posted to Courts in general

Courts - "Pretrial Detention, Bail and Due Process"

Here, at LLRX, is a useful guide to "recent publications and other notable resources concerning the relationship between the administration of bail and the requirements of due process," from Ken Strutin.

See more of Strutin's articles here.

Posted by Marcia Oddi on Tuesday, July 05, 2011
Posted to Courts in general

Ind. Courts - "Prank gone awry could land teen in prison: Experts question appropriateness of felony charge after student placed sex doll in school bathroom"

Jon Murray of the Indianapolis Star has a long story today about a Rushville incident that has led to national attention. The story begins:

When Tyell Morton placed a blow-up sex doll in a girls' bathroom stall as a prank on the last day of school, he had no idea what he was about to get into.

He didn't bet that a janitor's witness of his quick exit from the school -- wearing latex gloves and a hooded sweatshirt that concealed his face -- might trigger administrators' worst fears: explosives.

They locked down Rushville Consolidated High School for three hours. They called in state and local police. And before anyone could find the sex doll, K9 dogs and a bomb squad were scouring the building. Morton was soon arrested.

Now Morton, 18, faces charges that could bring up to eight years in prison. Yes -- eight years. Not to mention a felony record, if he's convicted. All for a good student with no criminal record.

All for a senior prank gone awry.

Whether Morton's treatment has been motivated by race, prosecutorial zeal or a post-Columbine mind-set that treats every perceived threat seriously has been the focus of intense discussion -- both inside Rushville, a small blue-collar city an hour southeast of Indianapolis, and well beyond Indiana.

Murray's comprehensive story looks at all three motivations. Re prosecutorial zeal:
But legal experts question the foundation of the lead charge, as does Morton's attorney.

Joel Schumm, a professor at the Indiana University School of Law-Indianapolis, said the use of the serious felony charge seems beyond the intent of the law.

Institutional criminal mischief, which starts out as a misdemeanor, applies under Indiana law when a suspect recklessly, knowingly or intentionally damages a school. But it gets boosted to a Class C felony -- Morton's charge -- if the "pecuniary loss" is at least $2,500.

The probable cause affidavit filed in court cites an $8,131.50 loss -- based on the hourly compensation of all school employees, from secretaries to the superintendent, whose time was diverted for hours that day.

Schumm said that misreads the legislature's intent, especially since the incident occurred during school hours. No physical damage resulted.

"It's clear from the language of the statute that they're talking about (damage to) real property -- about structures, or items in the school like desks," Schumm said. "I don't think they're talking about salaries. . . . I don't think it qualifies as institutional mischief at all."

Schumm also questioned the validity of Morton's misdemeanor disorderly conduct charge.

"Their reaction is understandable," Schumm said, "but use the school disciplinary process. Don't try to label the kid a felon for the rest of his life."

Jonathan Turley, a law professor at George Washington University, raised a wider question about the case on his legal blog: "The question is what type of society we are creating when our children have to fear that a prank (could) lead them to jail for almost a decade. What type of citizens are we creating who fear the arbitrary use of criminal charges by their government?"

Posted by Marcia Oddi on Tuesday, July 05, 2011
Posted to Indiana Courts

Ind. Decisions - More on "That could pull over every single taxi in Broad Ripple"

Updating last Friday's ILB entry on last week's Supreme Court decision in Brenda Moore v. State, the Lafayette Journal and Courier has an editorial this morning headed "Use common sense to fix law on public intoxication." It concludes:

Attempts to modify the state's public intoxication law have been unsuccessful so far. Let's hope the absence of common sense in this law is brought to state lawmakers' attention because of this ruling. If this is the accurate interpretation of the state's public intoxication law -- and the court said it is -- it's time to amend the law.

Perhaps lawmakers should change the law so that public intoxication can be filed only as a secondary charge to disorderly conduct, battery or drunken driving.

This would be keeping with the spirit that laws should protect people from being harmed by others.

Disorderly conduct harms the peace and tranquility of those in the area. Battery harms the person who has been offensively touched, and drunken driving risks the lives of every motorist the impaired driver passes.

Police shouldn't be allowed to cart people off to jail just because an otherwise cooperative, law-abiding person has been drinking. But according to the Indiana Supreme Court, it's OK to do so in Indiana.

Posted by Marcia Oddi on Tuesday, July 05, 2011
Posted to Ind. Sup.Ct. Decisions

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

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

From Monday, July 4th, 2011:

From Sunday, July 3rd, 2011:

From Saturday, July 2nd, 2011:

Posted by Marcia Oddi on Tuesday, July 05, 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 7/5/11):

  • No oral arguments currently scheduled.

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

  • No oral arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.



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

Next Wednesday, July 6th

  • 11:00 AM - Jonathon D. Douglas v. State of Indiana (40A01-1009-DR-466) - Douglas failed to pay support as ordered and in 2004, he was charged with Class C felony nonsupport of a dependent. Douglas pleaded guilty and was sentenced to eight years with seven years suspended to probation. Due to his continued failure to pay child support as ordered, Douglas's probation was revoked and he was ordered to serve his previously suspended sentence in the Indiana Department of Correction. Douglas subsequently filed a petition to modify his child support obligations asserting that he was entitled to a reduction in those obligations due to the decline in his income caused by his incarceration. The trial court denied the motion. Douglas raises one issue on appeal, which we restate as whether he was entitled to a reduction of his child support obligation due to the decline in his income caused by his incarceration for nonsupport of the same dependents who are the subjects of the support obligations he seeks to modify. The Scheduled Panel Members are: Judges Kirsch, Vaidik and Mathias. [Where: Supreme Court Courtroom (WEBCAST)]

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

Next Tuesday, July 12th

  • 10:30 AM - In Re: The Stephen L. Chapman Irrevocable Trust Agreement: Carrie Chapman vs. Howard L. Chapman and Elizabeth W. Chapman, Trustees (02A03-1012-TR-624) - Trustees/Settlors Howard and Elizabeth Chapman, parents of Stephen L. Chapman ("Stephen"), filed a petition to reform the Stephen L. Chapman Irrevocable Trust to modify the date of distribution of trust assets to Stephen, and the Allen Superior Court granted the petition. Intervenor Carrie Chapman, wife of Stephen, appeals the trial court's decision, arguing that (1) the trial court lacked jurisdiction because the reformation petition should have been heard in the pending dissolution action that she previously filed against Stephen, and (2) the trial court erred when it granted the petition to reform the trust agreement. The Scheduled Panel Members are: Judges Kirsch, Najam, and, Mathias. [Where: Allen County Courthouse, Fort Wayne, Indiana]

Next Wednesday, July 13th

  • 11:00 AM - Kristine M. Bunch vs. State of Indiana (16A05-1007-PC-439) - Following a jury trial in 1996, Kristine Bunch was convicted of murder for a mobile home fire that took the life of her three-year-old son. In 2006, Bunch filed a petition for post-conviction relief, which was denied in 2010 following an evidentiary hearing. Bunch now appeals the denial of her petition for post-conviction relief, alleging advances in science invalidate the basis for concluding the fire and death resulted from arson; the State improperly failed to disclose exculpatory and impeachment evidence; and her trial attorney rendered ineffective assistance by failing to adequately challenge the State's expert testimony and eliciting otherwise inadmissible opinion evidence suggesting guilt. The Scheduled Panel Members are: Chief Judge Robb, Judge Najam, and, Judge Crone. [Where: Supreme Court Courtroom (WEBCAST)]

  • 1:30 PM - Lawane Chaney vs. Clarian Health Partners, Inc. (49A05-0905-CV-263) - On February 10, 2011, we handed down our decision in favor of Clarian Health Partners, Inc. in the purported class action Chaney v. Clarian Health Partners, Inc. By the time of the appeal, Chaney, the only purported class member, was no longer a party, but his former counsel, Ron Weldy, nevertheless proceeded with the case. The trial court had dismissed the case with prejudice for lack of a class representative but had also denied Clarian's request for attorney's fees. Weldy, purportedly on behalf of Chaney, appealed. We dismissed the appeal as to the denial of discovery and the dismissal of the case. And we affirmed the imposition of Trial Rule 37 sanctions against Weldy. We denied Weldy's petition for rehearing, and the supreme court denied his petition for transfer. This matter is now set for oral argument on Clarian's motion for appellate fees and costs under Appellate Rule 66(E). The Scheduled Panel Members are: Judges Najam, Friedlander, and, Bradford. [Where: Court of Appeals Courtroom (WEBCAST)]

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

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


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

Posted by Marcia Oddi on Tuesday, July 05, 2011
Posted to Upcoming Oral Arguments

Monday, July 04, 2011

Law - California bill would require warrant to search cell phone

Bob Egelko at the San Francisco Chronicle reports that:

California legislators are nearing a final vote on a cell phone privacy bill that could force Gov. Jerry Brown to choose sides between civil liberties advocates and police.
The California Supreme Court allowed such warrentless searches in a January ruling. See the long story here.

(Thanks to How Appealing for the link.)

Posted by Marcia Oddi on Monday, July 04, 2011
Posted to General Law Related

Ind. Decisions - "Senator Slams Judge's Immigration Law Ruling"

Evidently Sen. Delph is not yet done speaking out on Judge Barker's immigration ruling. 6News' Joanna Masse has the story here. No video posted yet, but some quotes:

"Just as priests and the old Catholic Church had an interest to keep its monopoly on faith, so do the elites that control the judiciary," Delph tweeted over the weekend.

Delph graduated from law school last year and said he isn't concerned that his comments could hurt his legal practice later.

"That's not what my motivation is. My motivation is to do what I believe is right and to espouse issues that I believe are right," he said.

Delph said he went to law school to better understand the system, one that he appears to be growing increasingly disenchanted with.

"Let the battle against ivory tower elitism continue. It's the people's government, and that includes the judicial branch," Delph posted on Facebook.

Here is a June 27th ILB entry with more comments in the same vein.

And looking back, here is an ILB post from Feb. 25, 2011, shortly after Sen Delph took the Indiana bar exam, and long before the results were announced, where he comments on how "over 200 years of case law or common law ... has been allowed to interpret away the plain meaning" of the text of the US Constitution.

Posted by Marcia Oddi on Monday, July 04, 2011
Posted to Ind Fed D.Ct. Decisions | Indiana Decisions | Indiana Government | Indiana Law

Ind. Law - "Criminals get second chance with new law" [Updated]

This long June 26, 2011 ILB entry collected together much information on, and raises issues about, HEA 1211, which allows for expungement of or restricted access to Indiana arrest and conviction records in certain cases. So does this June 28th entry.

And earlier, on June 3, 2011, this ILB entry commented:

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."

As if to make this point, Quinn Minor filed a request last Friday asking that his records be sealed. We know this because it was done with much fanfare, a press release, and at least one TV story, this one from Adrienne Broaddus of WISH TV, accompanied by video. Some quotes:
Quinn Minor dresses for success, but snagging work has been tough for the father of three.

As a teenager, Minor got in trouble.

Copies of his criminal records show he purchased stolen jewelry and was convicted of theft in 1997. Every time he fills out a job application he’s asked, “Have you ever been convicted of a felony?”

“You just have to check yes,” Minor said.

But soon that will change for the 35-year-old. A change in state law will allow non-violent offenders like Quinn to request their criminal records be sealed. * * *

[O]nly certain people are eligible for a second chance, including people convicted of misdemeanors or Class D felonies. People with such charges as possession of marijuana or narcotic drugs under 2 grams can petition, but crimes like sex offenses don’t apply.

Hoosiers who think they are eligible should first seek legal advice. From there, they can file a petition with the their county clerk’s office. Processing the information could take up to 30 days. (The WISH TV story also links to some examples of offenses covered and not covered by the new law.)

The inevitable result? Amplification of the old information ... Again, a must read is this Nov. 1, 2009 ILB entry on the "Streisand effect."

See also this long, thoughtful June 5, 2011 story by Nate Carlisle in the Salt Lake Tribune. A snippet:

Some of Utah’s reformed criminals are discovering expungements are not the clean slate they were expecting. The problem can be traced to the Digital Age and the proliferation of private companies offering background checks.

The private firms use data downloaded from courts and the prison system. But whereas court-ordered expungements are effective at sealing government records of someone’s conviction from the general public, private record-holders are under no obligation to eliminate such information.

And it is just not commercial databases. At a minimum, the press release, the TV story, and this blog entry are now out there on the web.

Also useful is this June 26, 2011 article in the Charlotte Observer, by Mandy Locke and David Raynor.

[Updated 7/5/11] Heather Gillers now also has a story, in this morning's Indianapolis Star, about Quinn Minor and the new law, headed "Records law offers ex-offenders a second chance."

Posted by Marcia Oddi on Monday, July 04, 2011
Posted to Indiana Law

Ind. Courts - Bail bond article from Evansville Courier & Press

Mark Wilson's informative story is available here in the Evansville C&P. Some quotes from the lengthy report:

While state law dictates charges, and many aspects of bail procedure, bail amounts themselves are left to the discretion of judges and magistrates, resulting in such seeming inequities.

However, judges say that while there are many individual factors they can consider in making their determination, they all relate to two basic considerations.

"The first is safety, both of the defendant and the public. The second is the chance of nonappearance for their next court date," said Vanderburgh Superior Court Judge Robert Pigman.

Indiana law allows judges to consider "all factors relevant to the risk of nonappearance." Those may include the length of time a person has lived in the community, employment status and history, family ties and relationships, criminal or juvenile records and the person's character, habit, reputation and mental condition. Previous failures to show up to court and the nature of the charges are other considerations.

An important information source in the decision, Pigman said, is the affidavit of probable cause, documents telling the story of the person's arrest, usually written by investigating officer. But others can weigh in too. * * *

"Sometimes witnesses' and victims' testimony can override an affidavit," Pigman said.

In some cases, however, an officer's affidavit may be all a judge has to go on.

Vanderburgh County Senior Judge Maurice O'Conner alternates with Senior Judge Thomas Lockyear to provide bail hearings at the jail on weekends and holidays.

Often only the affidavit is available to make a decision, O'Conner said, and the standard of proof in such a situation is low.

Based on federal case law that says a person should appear before a judicial officer within 48 hours of their arrest if possible, the Indiana Supreme Court has said that a judicial officer will be available seven days a week, O'Conner said.

In addition to the nature of the charge and the risk of releasing somebody on bail, O'Conner said, there are also practical considerations such as the risk of overfilling the jail.

More from the story:
If a person cannot appear before a judge on a weekend or holiday they are held with no bond until they can appear in court. To make the process easier, most misdemeanor arrests are automatically assigned a $100 or $50 bail amount depending on the seriousness of the charge, Titus said. Felony arrestees must appear before a judge.

Exceptions are misdemeanor drunken driving arrests, which also must appear before a judge, and domestic violence arrests, for which bail starts at $500 for a first offense.

Murder is charge for which there is no bail typically allowed, no matter when the person arrested appears before a judge, according to Indiana law.

In cases involving other serious violent or sexual crimes, judges can use their discretion.

"If you made the decision that this is pretty serious and the indications are that the person is pretty anti-social, you can set the bond high," Pigman said.

When that happens during weekend or holiday bail hearings, O'Conner said, defendants can ask to have the bail amount reduced when they have an attorney and next appear before a judge.

"We are not going to release somebody who might be a threat to the community," he said.

Defendants willing to violate the conditions of their release after paying bail risk losing the money, Pigman said, and if a person is convicted the bail money can be used to offset the cost of public defenders' and other fees.

More than $1.25 million in forfeited bond money has gone to Vanderburgh County's public defender fund since 2007, he said.

Posted by Marcia Oddi on Monday, July 04, 2011
Posted to Indiana Courts

Law - For the 4th of July

The Law Librarian Blog this morning has this interesting entry headed "Documenting the Drafting Process for the Declaration of Independence." It begins:

Many but probably not most folks know that the Declaration of Independence was not written by Thomas Jefferson. The drafting process may have started at Jefferson's portable writing desk in Philadelphia but it quickly moved to becoming a product of committee work. There's even a fair amount of evidence that before Jefferson's rough draft was presented to his fellow drafting committee members, Benjamin Franklin advised Jefferson to substitute "happiness" for "property."
The entry includes links to the drafting committee's official "rough" draft, the Continental Congress's draft, and a transcript comparison of the Committee's draft, the reported draft to the Continental Congress, and the Dunlap Broadside.

In a second entry today, the LLB points to the monumental Constitution of the United States of America: Analysis and Interpretation (2002), prepared via the Congressional Research Service, along with the the 2004 Supplement, the 2006 Supplement, and the 2008 Supplement. (ILB: The 2008 link is incorrect, use this one.)

See also this page from the GPO.

Posted by Marcia Oddi on Monday, July 04, 2011
Posted to General Law Related

Sunday, July 03, 2011

Courts - "The D.A. Stole His Life, Justices Took His Money"

In the print version of today's Sunday NY Times, an article taking up two columns and running down the entire right-hand side of the editorial page sets out long portions of Justice Ginsberg's dissent in Connick v. Thompson, with highlighting and annotations by Lincoln Caplan. It is quite effective.

The Times' online annotated version of the dissent is also effective, but not quite as intuitive.

From the story:

In an important prosecutorial-misconduct case this term, the Supreme Court’s conservative majority threw out a $14 million jury award for a New Orleans man who was imprisoned for 18 years, including 14 on death row, for a robbery and a murder he did not commit. One month before John Thompson’s scheduled execution, a private investigator discovered that prosecutors had hidden evidence that exonerated him.

After his release, Mr. Thompson won a civil lawsuit against the Orleans Parish district attorney’s office, which had been led by Harry F. Connick, for its gross indifference to the incompetence of the prosecutors who violated his constitutional rights.

Justice Clarence Thomas, writing for the 5-to-4 majority in Connick v. Thompson, said the D.A.’s office was not liable for failing to train its lawyers about their duty under the Constitution to turn over evidence favorable to the accused.

The lawyers had kept secret more than a dozen pieces of favorable evidence over 15 years, destroying some. That failure to provide training, the court said, did not amount to a pattern of “deliberate indifference” to constitutional rights.

Justice Ruth Bader Ginsburg wrote a powerful dissent, which she read from the bench.

Posted by Marcia Oddi on Sunday, July 03, 2011
Posted to Courts in general

Ind. Courts - "In an unusual move in a private lawsuit, the state of Indiana has weighed in on the side of WellPoint, joining its call for dismissal"

That quote is from a lengthy, front-page, above-the-fold story in today's Sunday Star, reported by Jeff Swiatek. More:

Two shareholder lawsuits, headed to trial this year and next, call Anthem's 2001 stock offering a "deceptive and manipulative scheme" that picked the pockets of Anthem's 1 million stock-eligible policyholders, a fourth of whom lived in Indiana.

If juries decide the claims are justified, Anthem's successor company, WellPoint, could be slammed with a bill for more than $1 billion.

The lawsuits contend the stock offering undervalued the initial stock price, lavished stock on large customers who didn't deserve it, and unjustly enriched Wall Street underwriters and Anthem executives at the expense of small policyholders.

Posted by Marcia Oddi on Sunday, July 03, 2011
Posted to Indiana Courts

Ind. Courts - Community Pharmacies files to enjoin FSSA 38% dispensing fee reduction

From the Indiana Pharmacists Alliance press release:

This afternoon, the Community Pharmacies of Indiana and Williams Brothers Healthcare Pharmacy filed a lawsuit in federal court seeking a Temporary Restraining Order and Permanent Injunction against the Office of Medicaid Policy and Planning to stop them from implementing a 38% cut in the Medicaid pharmacy-dispensing fee. CPI President Nathan Gabhart said, “We don’t feel as though we have any choice. Litigation is always the last resort, and in this instance, it’s the only option left. We have met with the FSSA Secretary to plead our case, but were told that the cut would take effect on July 1 as published.”

The Office of Medicaid Policy and Planning published an emergency rule cutting the pharmacy-dispensing fee from $4.90 to $3.00, effective July 1, 2011, and expiring on June 30, 2013. Gabhart went on to say “We have a very real concern, based on our research, that this cut will force a number of pharmacies in Indiana to drop out of the Medicaid program and jeopardize many Medicaid patients access to the vital prescription drugs that they need to stay healthy and in some cases to stay alive. Community pharmacies already received a 34% cut on brand name medication reimbursement in September 2009.”

Here is the complaint, and here is the supporting brief, both filed July 1, 2011 in the Indianapolis federal district court.

Posted by Marcia Oddi on Sunday, July 03, 2011
Posted to Indiana Courts

Courts - More on "Ky. court will hear appeal by Amish: Safety triangles at issue in case "

Updating this ILB entry from January 28, 2009, Peter Smith of the Louisville Courier Journal has this report today, headlined "Kentucky Amish men appealing convictions to top court:
Object to safety triangles on buggies."
From the story:

Nine Western Kentucky Amish men are appealing to the state's highest court their convictions for failing to display bright safety triangles on their horse-drawn buggies. * * *

The men — members of the strict Old Order Swartzentruber Amish sect — objected to the triangles because their garish colors violated their modesty code and because they do not believe in trusting their safety to “worldly symbols.” * * *

The men were convicted in 2008, in two separate Graves District Court trials, of failing to display the orange-red triangles, which state law requires on buggies and certain other slow-moving vehicles.

Graves Circuit Court upheld the convictions, and the Kentucky Court of Appeals followed suit on June 3.

As long as a rational law applies equally to everyone, the appeals court ruled, the men are not entitled to endanger “the rights and safety of the public at large” because of their religious convictions.

That's the current federal case law in such situations under the U.S. Supreme Court's interpretation of the U.S. Constitution's First Amendment, the Court of Appeals noted.

But the Amish argue that the Kentucky Constitution offers stronger language than the First Amendment's prohibition on interfering with the “free exercise” of religion.

The Kentucky Constitution, for example, says “no human authority shall, in any case whatever, control or interfere with the rights of conscience.”

Posted by Marcia Oddi on Sunday, July 03, 2011
Posted to Courts in general

Law - "When Same-Sex Marriages End" [Updated]

A news analysis today in the Sunday NY Times, by legal correspondent John Schwartz, begins:

IF you thought the fight over same-sex marriage has been tumultuous, just wait for the era of same-sex divorce. With New York State’s new law allowing same-sex marriage, not just for residents but for out-of-staters as well, a bumper crop of weddings is sure to follow — and, eventually and inevitably, a sizable number of divorces.

But Americans are a roving sort, and people who marry and move to places hostile to their union could find, in disunion, a legal limbo.

More:
Same-sex divorce, of course, is not new. Massachusetts first allowed same-sex marriage in 2004 (and Vermont allowed civil unions in 1999). Some of the pioneer couples in such states have realized that connubial bliss isn’t. But the addition of New York, which, with 19 million people, is the third largest state by population, will add many new cases and conundrums. “There have been only a handful of cases on the topic, but that is sure to change,” said William C. Duncan, the director of the Marriage Law Foundation, which provides legal resources for those supporting traditional marriage.

People have gotten around barriers to divorce before. In more puritanical days, many states prohibited divorce unless one spouse could prove a transgression like abandonment, sexual escapades or cruelty. Mini-industries grew up in states like Nevada, where establishing residency took only a few weeks. Even just one spouse could break the bond for both.

Over time, however, the Supreme Court whittled away at the power of states like Nevada to put couples asunder, and the rise of no-fault divorce made the trip unnecessary. The quickie Reno divorce faded away.

Today, denying divorce denies justice, said Allen A. Drexel, a family law expert in New York with a large practice among same-sex couples. “The right to obtain a legal divorce is one of the most important, if least celebrated, rights of marriage,” he said. The process of separation can bring out the worst in people, he said, and “the incentives to game-play and to engage in forum-shopping to take advantage of the inconsistent legal treatment exists.”

The article is accompanied by a good graphic, headed "One Marriage, Many Laws."

Another NY Times article, this one from June 26th, reported by Nicholas Confessore, observes that New York's success may be difficult to replicate in many other states:

Twenty-nine states have constitutional bans on same-sex marriage, while 12 others have laws against it. And many of those states where support for same-sex marriage is high have already acted on the issue.
Indiana currently falls into the second category, we have a law against it. But a constitutional ban is in the works here in Indiana, which would take as long to undo as it would to put in place.

The NYT also has a two-part editorial today headed "Unfinished Business," focused both on the DOMA and on "don't ask. don't tell."

Posted by Marcia Oddi on Sunday, July 03, 2011
Posted to General Law Related

Courts - "A Significant SCOTUS Term, With Bigger Cases Ahead"

So reads the headline to this analysis by Adam Liptak of the NY Times, accompanied by this cool graphic of the major rulings of the 2010-11 term, showing how the justices voted.

Dahlia Lithwick of Slate has an opinion piece on how big business came out this term.

Posted by Marcia Oddi on Sunday, July 03, 2011
Posted to Courts in general

Ind. Law - "It's the law, for better and worse"

This editorial from the July 2, 2011 Indianapolis Star begins:

If you're a pedestrian, you no longer can assume you have the right of way.

If you're a motorist who likes to multi-task in traffic, you're free to do so as long as you're not texting or emailing.

If you're a liquor store clerk, you may be back to playing carnival age-guesser.

If you're a city or county government leader, you've been disarmed from regulating guns in your community.

Of the bevy of new Indiana statutes that took effect Friday, many should produce positive change in important areas of Hoosier life. Others, however, raise serious -- and humorous -- questions about the Indiana General Assembly's logic and priorities.

To take the most ominous first, a legislature obsessed with the desires of gun owners dramatically expanded the public venues into which firearms can be carried and the latitude for transporting them in cars. Most egregiously, the legislature deprived municipalities of their home rule in the paramount area of public safety. State lawmakers may think guns in hospitals make those institutions safer, but the decision should be left to those local officials who know their hospitals. We're betting they would differ with the Statehouse.

Posted by Marcia Oddi on Sunday, July 03, 2011
Posted to Indiana Law

Saturday, July 02, 2011

Ind. Courts - "Man Who Refused To Hand Over Arrest Video Acquitted: 66-Year-Old Man Took Video On Cellphone"

From Indy 6News, Joanna Massee has this story, complete with video. Some quotes:

An Indianapolis man who was charged after he refused to give police video of an arrest he captured on his cellphone has been acquitted.

Willie King, 66, was standing on his neighbor's property in the 3900 block of North Whittier Place as he recorded officers arresting a man on Feb. 18.

"I heard the neighbors screaming and hollering about the police. (They said) 'You all get off of him. He's already in handcuffs. Why are you doing this?' " King said. "I just got my camera out, put it on record, walked over to my neighbor's house and stood on his stoop."

The video shows an officer asking King if he was recording, saying he needed the video for evidence.

"You ain't taking (expletive). There ain't no evidence," King is heard saying on the video.

King was arrested and later charged with resisting arrest, public intoxication and disorderly conduct.

"I'm down there with his knee in my back and another with his elbow in my neck in handcuffs," King said of the arrest. "I'm 66 years old. I've never been arrested."

On Thursday, Marion County Judge William Nelson acquitted King on all charges.

Legal expert Joel Schumm told 6News' Joanna Massee he does not believe police have the right to arbitrarily demand citizens' cellphones.

He said recording arrests can help protect citizens and the police by proving what really happened, but suggested those doing the recording defend their rights without using profanity.

"I think if a citizen says, 'Yes, I've taped this. If you want to get this, here's my name and phone number. You can pursue a legal process to get it in the future,' I think that's fine," Schumm said.

Posted by Marcia Oddi on Saturday, July 02, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Notre Dame acts in two high-profile cases ILB has followed

"Notre Dame making changes to sexual assault response" is the heading to this long, detailed WISH TV/AP story. It begins:

SOUTH BEND, Ind. (AP) - The University of Notre Dame has agreed to changes in how it handles allegations of sexual assault and misconduct, including allowing accusers to appeal the results of a disciplinary hearing, following a seven-month investigation by the U.S. Department of Education, officials said Friday.

The department's Office of Civil Rights began a review of the school's procedures in December, months after a student from neighboring St. Mary's College reportedly accused a Notre Dame football player of touching her breasts. She later committed suicide, and her family complained that Notre Dame's investigation was superficial. At the time, the university's president said campus police conducted a thorough investigation.

For background, start with this Dec. 27, 2010 ILB entry headed "Notre Dame University President Jenkins breaks silence on Seeberg allegations."

"Notre Dame and state reach settlement in Declan Sullivan's death" is the headline to this report by Emily Monacelli in the Elkhart Truth. It begins:

INDIANAPOLIS - The University of Notre Dame must educate other universities about the danger of scissor lifts, contribute to a memorial fund and pay the state $42,000, the Indiana Department of Labor announced today.

The labor department said it reached a settlement with Notre Dame over 20-year-old Declan Sullivan's October 2010 death.

Sullivan, a student at the university, was killed while videotaping a Notre Dame football practice Oct. 27, 2010, when the scissor lift he was in toppled in high winds.
Here is a list of ILB entries on the incident, including this one from March 15, 2011 headed "State says Notre Dame to blame in accident leading to Sullivan's death."

Posted by Marcia Oddi on Saturday, July 02, 2011
Posted to Indiana Courts

Sports Law - NBA champ Dallas Mavs poorly managed?

Seems like Ross Perot, who owns 5% of the Dallas Mavericks, sued Mark Cuban last year (May 11, 2010) claiming Cuban had made "a litany of questionable business, financial and personnel decisions" regarding the Dallas Mavericks.

On June 22, 2011 Defendants filed a 2-page motion for summary judgment, incorporating a "true and correct photo of one of the many victory celebrations" this year. Check it out here, via a story in the Dallas Observer by Robert Wilonsky, headed "Did Mark Cuban's Attorney Just File Greatest Legal Scoreboard Ever in Ross Perot Jr. Case?"

Posted by Marcia Oddi on Saturday, July 02, 2011
Posted to Courts in general

Friday, July 01, 2011

Ind. Decisions - More on: "That could pull over every single taxi in Broad Ripple"

Updating this ILB entry from this morning, Law Prof. Orin Kerr at The Volokh Conspiracy comments on the Moore v. State opinion. A sample:

What a strange result, and as far as I can tell, entirely avoidable. First, the Miles case seems easily distinguishable. In Miles, the person arrested was found by the officer parked by the side of the road with the window down, and thus was at least plausibly in “public.” In contrast, as I understand Moore, the defendant was only stopped by the side of the road because the police officer seized Moore and forced Moore to be stopped by the side of the road when the officer pulled over the vehicle.

Under the principle of the venerable case of Martin v. State, 31 Ala. App. 334, 12 So.2d 427 (1944) — taught in nearly every 1L criminal law course — I would think this makes a critical difference: An officer can’t force a drunken person to be in “public” and then arrest the person for being drunk in public.

Posted by Marcia Oddi on Friday, July 01, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "“It wouldn’t be in our best interest to just start it,” Snyder said, noting the costly salaries associated with its administration and faculty, law library resources and a building"

That is a quote from an editorial today in the Fort Wayne Journal Gazette titled "Law school’s downtown draw" - some quotes:

If the steady transformation of Indiana Tech’s main campus into an attractive east side gateway is any indication, downtown Fort Wayne is in for a boost with the university’s new law school.

President Arthur Snyder imagines the new program in the heart of the city, adding 400 law students to the current mix of business, health and government workers.

He sees them living in the historic West Central neighborhood, walking to class, frequenting downtown amenities and taking advantage of the Courthouse for real-life lessons in law. * * *

Indiana Tech’s immediate efforts are to establish the academic program. The university already has 35 applicants for the dean’s position and inquiries from about 150 prospective students.

The law school announcement has prompted some complaints, almost all from lawyers and law students.

“The world is not crying to mint more lawyers,” attorney and City Councilman Mitch Harper posted on his Fort Wayne Observed blog.

But Indiana Tech’s feasibility study for the program, posted on its website, shows a thoughtful and thorough examination of the proposal.

“It wouldn’t be in our best interest to just start it,” Snyder said, noting the costly salaries associated with its administration and faculty, law library resources and a building.

What Indiana Tech intends is to fill a void for a law school in this region, to allow greater opportunity for Indiana students to remain in the state for law school and to offer a curriculum with a unique emphasis, possibly a combined law degree and master’s in organizational leadership.

If successful, the Indiana Tech law school should contribute to the development and success of downtown as well.

ILB: Indiana Tech, a private, not-for-profit [corrrected] institution, appears to have found a new law school to be a profit-making venture, perhaps even a "cash cow." The same has been the case nationally for, for instance, "chef's schools."

The plan should also be examined from the proposed students' point of view: will there be jobs for the student when they graduate that pay well enough to pay-down the cost of their degrees without substantial hardship? Should federal loan programs be involved? These questions need to be asked and answered by entities other than the for-profit institution.

Posted by Marcia Oddi on Friday, July 01, 2011
Posted to Indiana Law

Ind. Law - "New gun law is prime example of bad legislation"

Matt Tully writes today in his Indianapolis Star column:

Every July 1, a host of new state laws take effect. Essentially, that means that every July 1, a number of really stupid laws take effect.

Take, for instance, Senate Enrolled Act 292.

This new law has been eerily and accurately titled: "Preemption of local firearm regulation." This unnecessary law, pushed by Republicans but endorsed by many Democrats, tells cities and towns across the state that the General Assembly and the National Rifle Association know what is best for them. It also tells the state's urban centers that they must adhere to the wishes of lawmakers who in most cases don't live in those cities.

So, the legislature has decided that if Indianapolis wants to prohibit the carrying of firearms in its city parks, well, that's just too bad. If other municipalities want to prohibit licensed gun owners from bringing their weapons to city and town council meetings, well, that, too, is too bad. And, please, don't even try to tell people they can't bring a gun to a city-owned amphitheater in New Albany or a street department facility anywhere else. * * *

The law is just another reminder of the legislature's perpetual inability to focus squarely and exclusively on the issues that truly matter to Hoosiers -- the economy and education, for instance. This year, lawmakers insisted on distracting themselves with a host of divisive political issues. As such, federal health-care funding is now being threatened because of an overreaching anti-abortion law, courts are slamming a poorly written immigration law, and cities such as Indianapolis are watching very sensible local ordinances disappear.

It's too bad legislative Republicans and Gov. Mitch Daniels couldn't have called a -- hmm, what should I call it? -- oh, let's say a truce, on social issues.

ILB: Nicely written! My quibble with Mr. Tully (who I admire) is, where was he during the session when this "prime example of bad legislation" was under consideration?

Here are some earlier ILB entries, quoting various stories about SB 292, selected from a much larger list of stories, columns and editorials filed by other writers:

I had not planned to comment on today's column, until I saw this tweet a few minutes ago:
matthewltully Matthew Tully
Aww, shucks. “@morinap: Indy Star's @matthewltully nails it today on Indiana's new laws
Sometimes "better late than never" is really just late.

Posted by Marcia Oddi on Friday, July 01, 2011
Posted to Indiana Law

Not law but interesting - This 1982 technology report was right on!

Reading this June 14, 1982 review of a report commissioned by the National Science Foundation, titled "Teletext and Videotex in the United States," and published later that year, one can only marvel! Quotes from the NYT 1982 story:

Widespread penetration of the technology, it said, would mean, among other things, these developments:

- The home will double as a place of employment, with men and women conducting much of their work at the computer terminal. This will affect both the architecture and location of the home. It will also blur the distinction between places of residence and places of business, with uncertain effects on zoning, travel patterns and neighborhoods.

- Home-based shopping will permit consumers to control manufacturing directly, ordering exactly what they need for ''production on demand.''

- There will be a shift away from conventional workplace and school socialization. Friends, peer groups and alliances will be determined electronically, creating classes of people based on interests and skills rather than age and social class.

- A new profession of information ''brokers'' and ''managers'' will emerge, serving as ''gatekeepers,'' monitoring politicians and corporations and selectively releasing information to interested parties.

Thanks to Gina Trapani of Smarterware blog for spotting this.

Posted by Marcia Oddi on Friday, July 01, 2011
Posted to General News

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

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

Posted by Marcia Oddi on Friday, July 01, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Teachers' union seeks to block voucher law" [Updated]

Niki Kelly has the story today in the Fort Wayne Journal Gazette. Some quotes:

The Indiana State Teachers Association filed a lawsuit Friday in Marion Superior Court, requesting a preliminary injunction against the implementation of Indiana’s recently enacted school voucher law.

The association contends the voucher law violates provisions of the Indiana Constitution that safeguard Indiana taxpayers by ensuring they are not compelled, through the taxes they pay, to support religious institutions, ministries and places of worship.

The lawsuit also alleges the constitution prohibits the state from diverting public education funds from the “uniform system of Common Schools” that are “equally open to all,” and instead uses this public money to send some children to private schools that are free to exercise student admissions preferences based on religion and other factors.

The new law, which goes into effect today, provides state funding to low-and middle-income parents who want to send their children to private schools.

[More] Here is the Indianapolis Star story posted at 11:26 am by Scott Elliot.

ILB: Neither paper's story includes a copy of the complaint ....

Star reporter Elliot had a lengthy story Feb. 28th of this year that asked "Will state's top court settle school vouchers?"

[Updated 7/2/11] Here is an updated version of the FWJG story.

Scott Elliot of the IndyStar has a new story this morning; here are some quotes:

Two sections in the state constitution are at issue -- provisions that establish public schools as tuition-free and open to all; and guarantee separation of church and state. Both sections are common in state constitutions, but wording is slightly different from state to state.

Whether Indiana's language establishing public school would block vouchers hinges on a few key phrases. The provision says the General Assembly has a duty to encourage learning "by all suitable means" and to create a "uniform system of common schools, wherein tuition shall be without charge and equally open to all."

"This system (vouchers) certainly doesn't do that," [Teresa Meredith, a Shelbyville teacher, ISTA vice president and a plaintiff in the case] said. "It is sending public tax dollars to schools that are not open to all children."

Supporters of vouchers seize on "by all suitable means" as allowing for new avenues of schooling, including tax-supported vouchers.

Bert Gall, a senior attorney at the Institute for Justice, a Virginia-based libertarian group that supports vouchers and has pledged to help defend Indiana's law, said the provision allows for more options than just public schools.

"The program simply aids parents and children," he said. "No bureaucrat or government official tells them where to send their kids."

Tax dollars flowing directly to religious schools also could be a problem, voucher opponents say, contending Indiana's constitution prohibits state aid to religious institutions with unusually direct language: "No money shall be drawn from the state treasury, for the benefit of any religious or theological institution."

"If taxpayers hear the message that their dollars are going to support religious schools that they may or may not agree with, and that their tax dollars have been cut from their public schools, they'll see that this is impacting schools already and that students are going to suffer," Meredith said.

Glenn Tebbe, executive director of the Indiana Catholic Conference, doesn't think the program violates the state constitution. Catholic schools are strongly interested in being part of the program statewide, with many having already applied.

"There are many, many instances of faith-based organizations, in particular the Catholic Church, providing for the social well-being of people for centuries -- homeless shelters, health care, foster care," he said. "The public support of those activities is only one aspect of it."

Scholars say the suit does raise interesting and valid legal questions.

Martha McCarthy, chair of educational leadership and policy studies at Indiana University, said a ruling in favor of vouchers here would be a first at the state level in a decade. Vouchers have lost state court battles in Colorado, Florida and several New England states since the U.S. Supreme Court upheld their federal constitutionality in a landmark Cleveland case in 2002.

It's been a pattern for challenges over major education issues, such as funding equity and vouchers, to move toward state courts, McCarthy said.

That could mean trouble for the union lawsuit because Indiana's Supreme Court is viewed as more conservative than other states where vouchers were overturned, she said.

"This is a valid challenge for a valid system, but I don't think the case is going to turn on constitutional wording," McCarthy said. "It will be based on the sentiment of the court."

Posted by Marcia Oddi on Friday, July 01, 2011
Posted to Indiana Courts

Ind. Decisions - "Ogden Dunes wins battle to prevent homes being rented"

The Supreme Court's opinion Wednesday in Steven Siwinski, et al. v. Town of Ogden Dunes (ILB summary here) is the subject of a story today in the Gary Post-Tribune, reported by Teresa Auch Schultz. Some quotes:

Ogden Dunes has won the right to prevent homeowners from renting their houses to vacationers.

The Indiana Supreme Court ruled Wednesday that the town’s ordinance clearly states residential homes can’t be used for commercial purposes and renting a house is clearly commercial.

The town went after Steven Siwinski and Lauren Siwinski, of Highland Park, Ill., after they were caught advertising online to rent their house. Town laws say that homes can’t be rented for less than 30 days. The couple lost the initial lawsuit, with a trial judge ordering them to pay $40,000 in fines for violating Ogden Dune’s ordinance.

The Indiana Court of Appeals reversed that decision, ruling in favor of the Siwinskis, but the Indiana Supreme Court said it agreed with the trial judge.

The court cited the town’s three definitions of dwellings, saying that the fact it had a definition for multiple dwellings shows that it clearly means only one family can live in a single-family house.

The Siwinskis had argued that could be interpreted to mean only one family can live in a single-family house at a time.

Here is Dan Carden's story from the June 29th NWI Times. A quote:
Town officials began stringently enforcing residential zoning rules in 2007 to prevent the lakefront community of 1,300 people from turning into a resort area.

In 2010, the Indiana Court of Appeals rejected the town's claim that its zoning rules prohibited short-term rentals and said the Siwinskis complied with the code because the rented home was being used in a residential manner and by only one family at a time.

But the Supreme Court said there's no ambiguity in the town ordinance requiring homes be used exclusively by the same family.

"We find the ordinance clearly forbids the renting of a home in the residential district," Justice Steven David wrote.

Posted by Marcia Oddi on Friday, July 01, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "That could pull over every single taxi in Broad Ripple"

So remarked one person quoted in Carrie Ritchie's IndyStar story today on yesterday's Supreme Court decision in Brenda Moore v. State. The ILB's entry yesterday on the opinion was headed "Designated driver practice trashed?" More from the Star story:

"I don't think the court did anything wrong in its decision," said Sen. Michael Young, R-Indianapolis. "I think it just shows that until we change the law, more innocent people are going to be made (into criminals)." * * *

In the ruling, four justices agreed that her conviction followed the law because she admitted to being drunk, and cars traveling on public roads are considered to be public places. They said lawmakers could clarify the intent of the statute if they want to protect those like Moore. * * *

Young has authored proposed changes to the public intoxication law that would require people to be disruptive or dangerous, as well as drunk, before they could be arrested and charged with public intoxication.

Today's Star also has an editorial on the decision, headed "A case of drunk while not driving." Some quotes:
Writing for the majority, Justice Brent Dickson restored the conviction and dismissed Moore's argument that she caused no public harm or annoyance and that she complied with public service admonishments not to drink and drive. Dickson asserted that the court was simply applying the law as written.

But judges shouldn't adhere so closely to the letter of the law that common sense and wisdom are squeezed out. As Justice Robert Rucker noted in dissent, "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.''

Last month, in a case that sparked justified outrage, the court ruled that the Fourth Amendment does not give citizens the "right to reasonably resist unlawful entry by police officers."

The Indiana Supreme Court is a normally thoughtful safeguard against extremes on either side of the legal and political spectrums. It's erred badly twice of late, however.

Brenda Moore should not have been punished for trying to do the right thing.

Some might say that in the Moore case, the Court construed a statute inflexibly, while in the Barnes decision, it avoided another statute entirely.

Posted by Marcia Oddi on Friday, July 01, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - "Business, Free Speech Winners In High Court Term"

NPR's Nina Totenberg has a good wrap-up today of this just-ended SCOTUS term. It begins:

The U.S. Supreme Court term that ended Monday significantly altered the nation's legal topography, making it much more difficult for people to sue big business. At the same time, the court continued its First Amendment march, making clear that at least five justices, and often more, prize the First Amendment guarantee of free speech over other constitutional values.
Seems like things have taken a bad turn for those who do civil litigation:
"It's almost malpractice for a lawyer of a company now not to put an arbitration clause in any kind of document, whether it's a consumer contract or an employment agreement," said Supreme Court advocate Tom Goldstein. "All of those agreements will be enforced and the company [will] no longer face the prospect [of class-action liability], if they write the agreement correctly." * * *

Looking at the term overall, observers without exception, see a conservative arc that is hostile to litigation, especially litigation that seeks to regulate business practices by holding companies accountable in court for their actions.

Posted by Marcia Oddi on Friday, July 01, 2011
Posted to Courts in general

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

In Johnson v. Hix Wrecker Service (SD Ind., Lawrence), an 11-page opinion, Judge Williams writes:

Bobby Johnson, Jr. claims that his former employer, Hix Wrecker Service, did not pay him overtime wages in violation of the Fair Labor Standards Act (“FLSA”). The district court granted summary judgment in favor of Hix Wrecker, finding that Johnson was not entitled to overtime pay because he was subject to the motor carrier exemption to the FLSA. However, Hix Wrecker did not meet its burden of proof on the issue of whether the motor carrier exemption applied to Johnson. The evidence it presented did not establish as a matter of law that Johnson was exempt. Therefore, we reverse.

Posted by Marcia Oddi on Friday, July 01, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Ind. Supreme Court OKs taking of cheek swab DNA sample"

Updating this ILB entry yesterday summarizing the Court's decision in Arturo Garcia-Torres v. State of Indiana, Dan Carden reports in the NWI Times:

INDIANAPOLIS | Likening the taking of a cheek swab DNA sample to police fingerprinting a criminal suspect, the Indiana Supreme Court ruled Thursday that Hoosiers do not have a right to consult an attorney prior to giving up their DNA.

In a 4-1 decision, the court did not explicitly encourage police to take DNA along with fingerprints, but distinguished the taking of a cheek swab DNA sample from other bodily intrusions for which courts have typically required police to get a warrant before obtaining. * * *

In police custody, Garcia-Torres consented to the taking of a cheek swab DNA sample. His DNA matched DNA from the first victim's rape kit and DNA found on a shoe in the second victim's apartment.

Garcia-Torres argued in his appeal that the taking of a DNA sample is a search and under Indiana law he should have been allowed to consult with an attorney before deciding whether to consent to the search.

The state's high court, in a decision written by Chief Justice Randall Shepard, did not directly rule on whether the taking of a DNA sample is a search because both the state and Garcia-Torres proceeded as though it was.

But the justices said the main purpose of DNA, like fingerprints, is for identification, and the Indiana requirement that a person in police custody be permitted to consult with an attorney before a search does not apply because once in custody there is no legitimate reason to conceal one's identity.

Justice Robert Rucker, a graduate of Valparaiso University School of Law, dissented from the court's ruling and said the taking of DNA is no different than drawing blood, which federal courts have ruled is a search and subject to Fourth Amendment protections.

By consenting to the search, Garcia-Torres waived his federal constitutional rights, but Rucker said the Indiana Constitution provides greater protection to individuals by requiring police to tell a suspect he or she has the right to consult with an attorney before consenting to a search.

Rucker said because that instruction was not provided to Garcia-Torres the DNA evidence could not be used against him and he should receive a new trial.

For background, see this ILB entry from Feb. 9, 2010. (Interestingly, oral argument was heard nearly 18 months ago.)

Posted by Marcia Oddi on Friday, July 01, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - "U.S. Sentencing Commission approves retroactive crack guidelines"

Mike Scarcella of The National Law Journal reports in a story that begins:

Tens of thousands of federal prisoners could be released early from custody following a decision Thursday to retroactively apply crack cocaine sentencing guidelines that would reduce sentences for certain offenders.

The U.S. Sentencing Commission voted unanimously to give retroactive effect to the federal sentencing guidelines that implement the Fair Sentencing Act of 2010. The retroactivity of the amendment is expected to become effective on Nov. 1.

Posted by Marcia Oddi on Friday, July 01, 2011
Posted to Courts in general