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Wednesday, August 31, 2011

Stage Collapse - The State Fair Commission has posted a number of contracts and other documents online; constitutional issue with new fund?

Access the links here. Additional documents are to be added. (see also the State Fair index page, here.)

Thanks to 6News for the first word on the new state site ....

Jeremy Brilliant of WTHR 13 reports today on the Kenneth Feinberg, appointment. Some quotes - note the part I have highlighted:

INDIANAPOLIS - The Indiana State Fair is bringing in a well-known expert to help them determine how to get hundreds of thousands of dollars to victims of the stage collapse.

13 Investigates first broke the news Tuesday that not one penny of that victims' fund had been distributed. Now there are new plans to get that money to the people who need and deserve it.

Those who were injured from the stage collapse say they need money now. Many can't work or have lost wages. They're having a tough time paying bills. Hoosiers have been generous, giving more than $263,000, but it could still take some time before anyone sees that money. * * *

On Tuesday, Gov. Mitch Daniels signed an executive order transferring donations from the Central Indiana Community Foundation to the newly created Indiana State Fair Remembrance Fund. The state can give away money more easily than a foundation.

"The only purpose of the fund is to facilitate payments to the accident victims," said Andre Lacy, Indiana State Fair Commission chair.

But there's still no timeline for distribution. Kenneth Feinberg, who helped distribute victims' funds after 911, the Virginia Tech shootings and the BP oil spill will head up the Remembrance Fund.

Feinberg may be the nation's foremost expert in victims' fund allocation, but his work takes time. After Virginia Tech, it was about a year before victims saw any money. After 9/11, it took nearly three years.

In the past, victims have had to prove their involvement in the incident, income levels and losses from wages. The remembrance fund is separate from any lawsuit or settlement with the state. * * *

Feinberg will be working free of charge. In addition to divvying up the remembrance fund, he will also figure out how to divide $5 million, which is the maximum the state can pay out in any one incident. He has the grim duty of determining the value of a life or a person's injury, and he has quite a bit of experience.

Separately, Attorney General Greg Zoeller announced Wednesday that Feinberg will serve as a consultant to his office to develop a protocol for resolving legal claims filed against the state as a result of the accident.

Here is Executive Order 11-09, dated August 30, 2011. Here is the language of the Order:
1. The state shall accept a grant from CICF of the charitable donations that have been contributed to the Remembrance Fund. The state will deposit the entire proceeds of the Remembrance Fund, together with any other private contributions, into a restricted fund called the State Fair Relief Fund ("Relief Fund"). The sole purpose of the Relief Fund shall be to receive and distribute charitable donations to assist the victims of the state fair accident (the "Award Recipients"). The Relief Fund shall consist solely of philanthropic contributions; no general fund dollars shall be deposited into the Relief Fund.

2. The Commission shall provide oversight of the Relief Fund.

3. The protocols developed will be used to determine eligibility for gift payments and the appropriate calculation of such payments.

4. The Relief Fund shall consist solely of charitable donations made by individuals and entities out of a detached and disinterested generosity to assist the Award Recipients. All payments from the Relief Fund are voluntary and shall represent a gift of charitable proceeds.

5. Payments from the Relief Fund are not intended as compensation for or in exchange for the waiver of any legal rights arising under the events of August 13, 2011.

ILB Question: Now that this has become state money, doesn't the Indiana Constitution require that it be appropriated by the General Assembly? Is it correct to say that "The state can give away money more easily than a foundation?"

Article 10, section 3 of the Indiana Constitution provides:

Section 3. No money shall be drawn from the Treasury, but in pursuance of appropriations made by law.
There is no question but that the General Assembly could enact general appropriating language, or specific appropriations, to deal with distributions from this new Relief Fund. But without an appropriation, can the money be distributed? Remember, there is language in the budget bill relating to the appropriation of money from all funds, not simply money in the general fund. Federal funds are also distributed by appropriations of the General Assembly.


[More] Oddly, I ran into something somewhat similar, from Illinois, right after I wrote the above. From the story by Maria Altman of WBEZ91.5 Chicago:

[T]he law states the money "shall be paid" rather than "transferred."

And without an appropriation from the General Assembly, the Gaming Board can't send the money.

"The short of it, right now there's no mechanism to move the money from the state Gaming Fund to the Horse Racing Equity Fund," Hahn said.

Hahn said the Gaming Board will ask legislators in the upcoming veto session to either appropriate the money or change the law's language to allow transferring the money.

Posted by Marcia Oddi on Wednesday, August 31, 2011
Posted to Stage Collapse

General - Journalism students at U of Kansas offered course in how to cover traumatic and violent events

From a news release:

LAWRENCE — The University of Kansas School of Journalism is taking a step not often seen in journalism schools around the country by implementing a course specifically designed to educate journalism students on how to cover the traumatic and violent events often encountered in their potential future line of work. * * *

School of Journalism Dean Ann Brill says utilizing resources with appropriate training in the area of trauma and the media is a tremendous benefit to students.

“Unfortunately, we live in a world where trauma is part of the news most days,” Brill said. “Fortunately, we have trained and competent journalists reporting on such events. This course is excellent training for future journalists.”

Lamsam says the need for curriculum educating future journalists on how to cover traumatic events is critical to prevent as many “on the job training” situations as possible, when journalists are confronted with trauma or violence they are often unprepared to handle, from covering the event and the victims, to how the event will impact the journalist.

Posted by Marcia Oddi on Wednesday, August 31, 2011
Posted to General News

Courts - "Revolt Weakens Chief Judge Edith H. Jones’ Control of Fifth Circuit Law: Bankruptcy"

This is interesting. See the long story by Bill Rochelle in Bloomberg Businessweek. It begins:

Sixteen judges on the U.S. Court of Appeals in New Orleans heard reargument in a bankruptcy case and thirteen voted to reverse the original opinion handed down in September by Chief Judge Edith H. Jones, who was writing for a three-judge panel.

Coupled with a ruling less than a week before where Jones had also written the original opinion, the two cases together could imply that a majority of the appeals court judges in the Fifth U.S. Circuit in New Orleans differ with the chief judge on the direction she was giving to bankruptcy law.

Posted by Marcia Oddi on Wednesday, August 31, 2011
Posted to Courts in general

Ind. Gov't. - "AFL-CIO sues state over state law banning collective bargaining"

Lesley Weidenbener reports this afternoon for The Franklin Online:

INDIANAPOLIS – A public employees union filed a lawsuit Wednesday against Gov. Mitch Daniels and his personnel director challenging a new state law that bans collective bargaining between the state and any union.

The suit – filed in the Marion County courts – says the law takes away any future governor’s ability to sign an executive order that would confer collective bargaining rights to state employees.

“It’s been well established that administration of state employees is the role and responsibility of the executive branch of Indiana state government,” said David Warrick, executive director of American Federation of State, County and Municipal Employees Council 62, which represents state employees.

“This law is an attempt to blindside established precedence and leave state employees with no ability to enjoy the same rights of a private employee,” Warrick said. * * *

The state’s three previous governors – Evan Bayh, Frank O’Bannon and Joe Kernan, all Democrats – signed executive orders extending bargaining rights to state employees. During that time, AFSCME represented roughly 3,600 state employees and maintained union contracts and good employee/employer relationships with the state, the union said.

However, when Daniels took office in 2005, the Republican rescinded those collective bargaining rights, saying he feared they would get in the way of significant changes he wanted to make in state government operations.

Then this spring, the GOP-controlled General Assembly put that ban on collective bargaining into state law.

The lawsuit seeks to nullify the law under the separation of powers provision within the Indiana Constitution “because the executive branch of state government has jurisdiction over administrative procedures and employee/employer relations—not the legislative branch,” AFL-CIO officials said.

The lawsuit also asserts that the General Assembly violated the single-subject requirement of the Indiana Constitution when it added the labor provisions to the budget bill.

Indiana courts have denied similar challenges to the legislative practice of so-called log-rolling, which involves adding unrelated provisions to popular or must-pass bills.

The ILB hopes to obtain and post a copy of the suit.

Posted by Marcia Oddi on Wednesday, August 31, 2011
Posted to Indiana Government

Stage Collapse - More on: AG hires Ken Feinburg

From a just-issued press release:

Attorney General Greg Zoeller said today that Kenneth Feinberg, the nationally respected expert who was administrator of victim compensation funds after 9/11 and the BP Gulf oil spill, has agreed to consult with the Attorney General's Office on paying claims associated with the Indiana State Fair tragedy.

Feinberg will serve as consultant to the Attorney General on developing a protocol for resolving claims filed against the State of Indiana in a fair and equitable way. Feinberg has agreed to consult at no charge to the State or taxpayers.

"We want to move to pay the full $5 million that the state's law allows as soon as an equitable formula can be devised. My goal is to focus on the needs of victims and their families while minimizing the expense of lengthy and costly litigation. In light of the urgency for victims of the State Fair tragedy and the statutory limits on compensation, the advice of Mr. Feinberg who has faced these circumstances before will be invaluable in developing this claims process effectively," Zoeller said. * * *

The Office of the Indiana Attorney General represents the State in various legal matters related to the State Fair tragedy. With a statutory role in administering the Indiana Tort Claim Fund, the Attorney General's office reviews claims and makes recommendations to the Governor for his consent before any payments are made on behalf of the State.

In his role as an unpaid consultant to the Attorney General, Feinberg will develop a protocol for resolving claims from the August 13 incident fairly and equitably, which the Attorney General will use in making recommendations to the Governor for his consent. Such a process would provide victims and families with certain and prompt payment.

"Through his service after previous tragedies, Mr. Feinberg brings great experience and insight to the claims process. Evaluating claims so that the State can be fair and equitable in addressing victims will be a difficult and solemn process. We are grateful that Mr. Feinberg has stepped forward once again to serve at this time of need," Zoeller said.

Separately, Feinberg also will work to coordinate with the Indiana State Fair Commission on protocols for distribution of the private donations made to the Indiana State Fair Remembrance Fund.

Posted by Marcia Oddi on Wednesday, August 31, 2011
Posted to Stage Collapse

Stage collapse - AG hires Ken Feinberg

Mary Beth Schneider tweets:

Atty gen hires Kenneth Feinberg, fund administrator from 9/11 and gulf spill, to advise on claims from state fair disaster.
Heather Gillers:
Fair Commish chair Andre Lacy says Gov Daniels signed executive order allowing distribution of private donations.
Heather Gillers:
private donations total $263,000 so far, plus $554,000 from bands Train & Maroon 5

Posted by Marcia Oddi on Wednesday, August 31, 2011
Posted to Stage Collapse

Ind. Decisions - One today from Tax Court

In Brenda Truedell-Bell v. Marion County Treasurer, a 7-page opinion, Judge Wentworth writes:

Brenda Truedell-Bell has filed a “Petition for Temporary Order/Injunction Removing Property from the Property Tax Sale Pending the Outcome of the Assessment Appeal/Property Reassessment” (Petition). While the Petition asks the Court to consider and resolve several issues, one is dispositive: does the Tax Court have subject matter jurisdiction? * * *

“The current statutory framework limits access to the Tax Court t[hrough] specified procedural channels.” State Bd. of Tax Comm’rs v. Montgomery, 730 N.E.2d 680, 686 (Ind. 2000). That statutory framework not only required Truedell-Bell to obtain a final determination from the Indiana Board before appealing to the Tax Court, but provided her with an avenue – when the local assessment appeal process failed her – by which she could obtain that final determination. Because Truedell-Bell’s lack of a final determination from the Indiana Board deprives this Court of subject matter jurisdiction, this cause is hereby DISMISSED.

Posted by Marcia Oddi on Wednesday, August 31, 2011
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Two today from Supreme Court

In Quincy Branham & Shannon Branham v. Rodney Varble & Norman Chastain, an 8-page, 5-0 opinion, Chief Justice Shepard writes:

After conducting proceedings supplemental in a case on the small claims docket, the trial court ordered two self-represented judgment debtors to pay on the judgment despite their lack of non-exempt income. We reverse, holding that entitlement to the very ordinary statutory exemptions at issue here is not forfeited by failure of an unrepresented litigant to plead them as an affirmative defense in the course of purposefully informal small claims processes. * * *

I. Courts Cannot Order Debtors to Pay Out of Exempt Income. The Branhams first argue that the trial court should not have ordered payment because there was no evidence that the Branhams had any non-exempt income.

The principle that debtors should have a certain amount of property or income exempted from collection finds its origin in our constitution, which says:

The privilege of the debtor to enjoy the necessary comforts of life, shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale, for the payment of any debt or liability hereafter contracted: and there shall be no imprisonment for debt, except in case of fraud.
Ind. Const. Art. 1, § 22. To enforce Article 1, Section 22, our General Assembly has enacted multiple exemption statutes sheltering certain property and income from attachment. The general rule of civil litigation is that these exemptions must be asserted by the debtor. Mims v. Commercial Credit Corp., 261 Ind. 591, 307 N.E.2d 867 (1974). [ILB: The Branhams were not represented by counsel at trial.] Because the statutory exemptions exist to give life to a constitutional right, we have held that there should be exceptions and modifications to this general rule "consistent with fairness and practical realities." * * *

[T]his record contains no evidence that the Branhams have any property or income that is not covered by an exemption. Therefore, we reverse the trial court‘s order requiring them to pay $50 per month on the judgment.

We finish by emphasizing that a judicial officer hearing small claims is not charged with identifying and applying the entire gamut of exemptions. The two involved here—the general wage exemption and the SSI exemption—are the stuff of everyday life in collections work. We cannot say on appeal that they are lost through failure of formal pleading. * * *

III. It Was Improper to Order Mr. Branham to Apply for Jobs. The Branhams argue that the trial judge did not have the authority to order Mr. Branham to conduct a job search. The Court of Appeals agreed, and so do we. Indiana Trial Rule 69(E) allows a judgment debtor to be called to court "to answer as to his non-exempt property subject to execution or proceedings supplemental to execution or to apply any such specified or unspecified property towards satisfaction of the judgment." Ind. Trial Rule 69(E)(3). Rule 69(E) also requires garnishees to answer as to the judgment debtor‘s property. T.R. 69(E)(4). The rule does not confer upon the trial court the authority to force the judgment debtor to find a job or otherwise acquire non-exempt property. See State ex rel. Wilson v. Monroe Superior Court IV, 444 N.E.2d 1178, 1180 (Ind. 1983). This contrasts dramatically, of course, with the processes applicable to child support, where the obligor has an affirmative duty to generate support

Conclusion. Except for the court‘s directive that the Branhams return for a further hearing on the proceeding supplemental, we reverse.

In Quincy Branham & Shannon Branham v. Rodney Varble & Carol Varble, a 2-page, 5-0 opinion, CJ Shepard writes:
In this case heard on the small claims docket, the trial court conducted proceedings supplemental to execution. It ordered two unrepresented judgment debtors to pay on the judgment despite their lack of non-exempt income, and it required the husband to submit five job applications per week. * * *

The trial court heard jointly the present case and another involving most of the same parties. We decide that case today as well. Branham v. Varble & Chastain, ___ N.E.2d ____ (Ind. 2011). [ILB - see above summary] There, we make three rulings. First, for unrepresented parties in small claims court, resort to the generic exemption statute and the Social Security exemptions are not forfeited even if the litigants do not know enough to plead them. Second, a court does not err when it orders a party to return for status checks some limited number of times, even if an information of contempt has not been filed. Third, orders to seek employment or to seek better employment are not a proper part of a proceeding supplemental.

Applying those rules to the facts in this case leads to the same result. The orders to pay $50 per week and the order to make application for new work are reversed. The order to return for a status check is affirmed.

Posted by Marcia Oddi on Wednesday, August 31, 2011
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In Indiana Area Foundation of the United Methodist Church, Inc., d/b/a United Methodist Church, Bishop Michael Coyner, Ann Glass, and Robert Ostermeier v. Lynn Snyder, a 13-page opinion that the ILB can't begin to summarize, Judge Barnes writes:

The Indiana Area Foundation of the United Methodist Church, Inc., d/b/a United Methodist Church (“the Church”), Bishop Michael Coyner, Reverend Ann Glass, and Reverend Robert Ostermeier (collectively “the Appellants”) appeal the denial of their motion for summary judgment on Reverend Lynn Snyder's defamation claim. Reverend Snyder cross-appeals the trial court's decision granting the Appellants' motion for summary judgment on his breach of contract claim. We affirm in part, reverse in part, and remand. * * *

The Appellants have established that they were entitled to summary judgment on Reverend Snyder's defamation claim, and we remand for the entry of summary judgment in favor of the Appellants on that claim. Further, Reverend Snyder has not established that summary judgment was improperly granted on his breach of contract claim. We affirm in part, reverse in part, and remand.

In Max H. Bonecutter v. Discover Bank, a 17-page opinion, Judge Brown writes:
Max H. Bonecutter, pro se, appeals a small claims court's judgment in favor of Discover Bank, a Delaware Corporation. Bonecutter raises several issues, which we consolidate and restate as whether the court erred in ruling in favor of and entering judgment for Discover. We affirm.
In State of Indiana v. Stephen Alter , an 11-page opinion, Judge Brown writes:
The State of Indiana appeals the trial court's grant of a motion to suppress filed by Stephen Alter. The State raises one issue, which we revise and restate as whether the trial court erred in granting the motion to suppress. We affirm. * * *

Based upon the testimony presented at the suppression hearing, we conclude that the officers lacked reasonable suspicion to further detain Alter for investigatory purposes under the Fourth Amendment at the time Officer Neargardner directed Alter to open the smaller bag and to give him anything illegal or give him the marijuana. * * *

Regardless of the language of Ind. Code § 14-22-39-3, the conservation officers were not permitted to detain or seize Alter in violation of the Fourth Amendment to the United States Constitution.

NFP civil opinions today (5):

Naomi Paddock v. Bradley K. Maikranz, et al. (NFP)

Richard Swoboda v. Richard Stalbrink, Jr. (NFP)

Term. of Parent-Child Rel. of I.N. and J.T-R.; D.R.N., Jr. v. IDCS (NFP)

Melinda Engelking v. John T. Cosby (NFP)

Richard L. Snider and Sherrie W. Snider v. European Warmblood Imports, Inc., Michael Pedersen and April Pedersen (NFP)

NFP criminal opinions today (13):

Tony Benson v. State of Indiana (NFP)

Aimee Cotton v. State of Indiana (NFP)

Eqwan Garrett v. State of Indiana (NFP)

Jerry Perry v. State of Indiana (NFP)

Dohjae Kirkland v. State of Indiana (NFP)

Nelson Gary, II v. State of Indiana (NFP)

Steve A. Morrison v. State of Indiana (NFP)

Antonio D. Murillo v. State of Indiana (NFP)

Jacob J. Cummings v. State of Indiana (NFP)

Donald Klinzman v. State of Indiana (NFP)

Jermail D. Warren v. State of Indiana (NFP)

Danny Grigsby v. State of Indiana (NFP)

Reo Jon'ta Thompson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 31, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "Dean Kruse accused of felony theft"

Updating this ILB entry from yesterday, Angela Mapes Turner, who reported the lengthy Sunday Fort Wayne Journal Gazette story on Kruse, reeports today in a story that begins:

AUBURN – Officials in Pennsylvania want former auctioneer Dean V. Kruse to face a felony charge in that state.

Late Tuesday, the DeKalb County Sheriff’s Department released a statement that arrangements were under way for Kruse’s surrender at the Auburn courthouse this morning, when he would be taken before a judge to deal with extradition issues.

Kruse, 69, was charged Monday in Dauphin County, Pa., with one count of theft, dating to a 2008 auction. Through his now-defunct company Kruse International, he held auctions in Hershey, Pa., for many years.

Posted by Marcia Oddi on Wednesday, August 31, 2011
Posted to Indiana Courts

Ind. Courts - More on "Defense seeks to suppress video in Martinsville 11-year-old’s murder trial"

Updating this ILB entry from August 25th, this brief story from August 26th reports:

MARTINSVILLE, Ind. (AP) — A judge says a videotaped statement by an 11-year-old boy accused of killing his 6-year-old brother is admissible in court.

Morgan County Superior Court Judge Christopher Burnham on Thursday denied a request by the boy's lawyer that the video be suppressed because the boy wasn't given proper time to consult with his parents before waiving his right to have an attorney present when he was questioned by police July 1. That was the day after Andrew Frye was fatally shot.

The Reporter-Times of Martinsville quoted the judge as ruling:
Morgan County Superior Court II Judge Christopher Burnham, who is also the county’s juvenile judge, determined that Butler was adequately advised of his rights. The judge also said Butler was given enough private time with his mother and grandmother who were at the interview.

Burnham said Butler “had the opportunity for meaningful consultation with his mother prior to any questions of an incriminating nature being asked of him.”

The judge determined that at the time her son was being questioned, Vandagrifft was not under arrest or in custody. She was not an eyewitness to the events leading up to Frye’s death. The judge determined that at the time, there was no adverse of conflict of interest in her waiving her son’s rights.

Posted by Marcia Oddi on Wednesday, August 31, 2011
Posted to Ind. Trial Ct. Decisions

Stage Collapse - Indiana State Fair Commission news conference at 1 p.m.

From the news release:

From a State Fair Commission news conference to discuss plans moving forward for the Indiana State Fair Remembrance Fund. State Fair Commission Chairman Andre Lacy will conduct the news conference.

Day/Time: Today (August 31), 1 p.m.

Location: Farm Bureau Building on the Indiana State Fairgrounds

There have been a lot of questions about the plans for use/distribution of the fund, which is made up of private donations.

This AP story reports:

Central Indiana Community Foundation spokesman Mike Knight says the State Fair Remembrance Fund contained $242,404 as of today.

Posted by Marcia Oddi on Wednesday, August 31, 2011
Posted to Stage Collapse

Ind. Gov't. - More on "Jim Bopp Quits the Charlie White Case"

Updating this brief item from yesterday, here is a slightly longer AP story [link fixed]. Some quotes:

Embattled Indiana Secretary of State Charlie White will represent himself as state Democrats’ challenge to his candidacy works its way through the next round of court hearings.

Republican attorney Jim Bopp confirmed Tuesday that he had resigned as White’s lawyer.

Secretary of state’s office spokesman A.J. Feeney-Ruiz says the decision was a money-saving move intended to be temporary.

ILB: This is somewhat confusing. (1) Why is the Secretary of State, a state elected official, not being represented by the state attorney general? (2) The second question is contingent on the answer to the first -- if this matter is not appropriate for involvement by the state's attorney, then why is the secretary of state’s office spokesman, a state employee, speaking for Mr. White?

Posted by Marcia Oddi on Wednesday, August 31, 2011
Posted to Indiana Government

Tuesday, August 30, 2011

Ind. Courts - "Clark County's property-tax lawsuit to be heard Oct. 28"

Ben Zion Hershberg reports this afternoon in the Louisville Courier Journal:

The Indiana Tax Court has scheduled a hearing on Oct. 28 over the Indiana Department of Local Government Finance’s denial of Clark County’s request for a special $7 million property-tax increase last year.

The department of local government finance said it was denying the tax increase — called an excess levy — because it was based on the county council’s decision to cut property tax collections by 25 percent in 2007. The department said it couldn’t allow such special tax increases if they were due to intentional tax reductions.

In its lawsuit before the court, Clark County is now asking for a one-time $3.5 million special tax increase and a $1.5 million continuing increase in its property-tax base. * * *

The hearing is to be held at 12:30 p.m. in Room 300 of the Jefferson County Courthouse in Madison.

Posted by Marcia Oddi on Tuesday, August 30, 2011
Posted to Indiana Courts | Indiana Government

Ind. Courts - "Dean Kruse accused of felony theft"

Rebecca S. Green has a brief report this afternoon in the Fort Wayne Journal Gazette, to be expanded in a story tomorrow.

This follows on the Sunday story from the same paper headed "Dean Kruse still faces many legal battles: Auctioneer has made good on many debts in effort to get license back."

Posted by Marcia Oddi on Tuesday, August 30, 2011
Posted to Indiana Courts

Ind. Gov't. - "Jim Bopp Quits the Charlie White Case"

So reports Jim Shella, of WISH TV.

Posted by Marcia Oddi on Tuesday, August 30, 2011
Posted to Indiana Government

Law - Asset forfeitures where local and federal authorities cooperate in seizing assets

Note: Access to the WSJ is free, at least for today. I don't know whether that applies to earlier stories ...

In several earlier entries on asset forfeiture in Indiana, mention has been made that rather than sending a portion of money seized to the Indiana common school fund, locals might instead enter into a more advantageous relationship with federal authorities.

Two Wall Street Journal stories, from by John R. Emshwiller and Gary Fields, from August 22nd, explain what is known as "equitable sharing."

The first story is headed "County Sheriff Enjoys Fruits of Forfeitures." Some quotes:

The sheriff's office in Douglas County, Neb., just finished a new $4.2 million crime lab and police-dog center thanks to money seized from people driving by on Interstate 80.

That money is a small part of a large and controversial asset-forfeiture program known as "equitable sharing."

In this program, local authorities work with federal officials in seizing assets, such as cash or cars, they believe are tied to illegal activities. If the assets are deemed to be crime-related, the local and state agencies get up to 80% of the proceeds. Last year, equitable sharing paid out more than $500 million.

The second, and much longer story, is headed "Federal Asset Seizures Rise, Netting Innocent With Guilty ." Some quotes:
Some 400 federal statutes—a near-doubling, by one count, since the 1990s—empower the government to take assets from convicted criminals as well as people never charged with a crime.

Last year, forfeiture programs confiscated homes, cars, boats and cash in more than 15,000 cases. The total take topped $2.5 billion, more than doubling in five years, Justice Department statistics show.

The expansion of forfeiture powers is part of a broader growth in recent decades of the federal justice system that has seen hundreds of new criminal laws passed. Some critics have dubbed the pattern as the overcriminalization of American life. The forfeiture system has opponents across the political spectrum, including representatives of groups such as the American Civil Liberties Union on the left and the Heritage Foundation on the right. They argue it represents a widening threat to innocent people.

"We are paying assistant U.S. attorneys to carry out the theft of property from often the most defenseless citizens," given that people sometimes have limited resources to fight a seizure after their assets are taken, says David Smith, a former Justice Department forfeiture official and now a forfeiture lawyer in Alexandria, Va.

Backers of the system say there are adequate protections for the innocent, and describe the laws as a powerful tool for returning money to crime victims. * * *

Part of the debate over seizures involves a potential conflict of interest: Under a 1984 federal law, state and local law-enforcement agencies that work with Uncle Sam on seizures get to keep up to 80% of the proceeds.

Last year, under this "equitable-sharing" program, the federal government paid out more than $500 million, up about 75% from a decade ago.

The payments give authorities an "improper profit incentive" to seize assets, says Scott Bullock of the Institute for Justice, a libertarian public-interest law firm in Arlington, Va. It's a particular concern amid current state and local government budget problems, he contends.

Justice Department officials say the 8,000 state and local agencies in the equitable-sharing program have greatly expanded the federal government's ability to go after criminal activities, particularly the movement of drugs and drug cash along the nation's highways. The program is monitored to ensure seizures are handled properly, they add.

Posted by Marcia Oddi on Tuesday, August 30, 2011
Posted to General Law Related

Ind. Decisions - Seventh Circuit Review online

Here is the description:

The Seventh Circuit Review is a semiannual, online journal dedicated to the analysis of recent opinions published by the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit Review seeks to keep the legal community abreast of developments and trends within the Seventh Circuit and their impact on contemporary jurisprudence. The articles appearing within the Seventh Circuit Review are written and edited by Chicago-Kent College of Law students enrolled in the Seventh Circuit Review Honors Seminar.
Volume 6, Issue 2 (Spring 2011) is now available here.

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

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

For publication opinions today (3):

In State of Indiana v. Alfonso M. Chavez, a 9-page opinion, Judge Crone writes:

Alfonso M. Chavez has been charged with two counts of murder. Before trial, Chavez successfully moved to exclude statements of two codefendants that implicated Chavez in the murders. The trial court certified its order for interlocutory appeal, and we accepted jurisdiction. The State argues that neither the Sixth Amendment nor the Indiana Rules of Evidence require exclusion of the evidence. We conclude that the statements are inadmissible hearsay pursuant to the Rules of Evidence; therefore, we affirm the trial court's ruling on that ground and do not reach the constitutional issue.
In Martin A. Villalon, Jr. v. State of Indiana , an 18-page opinion, Judge Bailey concludes:
Villalon was not denied his Sixth Amendment right to a jury trial. He has not established that his waiver to adult court lacked evidentiary support for the statutory prerequisites. He has failed to demonstrate ineffectiveness of trial counsel or reversible error in the admission of evidence or the conduct of the trial. Finally, Villalon's sixty-year sentence is not inappropriate.
Wayne K. Smith v. State of Indiana - "Based on the foregoing, we find that the trial court did not abuse its discretion when it denied Smith's motion to suppress evidence."

NFP civil opinions today (3):

Terrance R. Huber v. Montgomery County Sheriff (NFP)

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

In Re The Marriage of: Daniel Madden v. Tracy Madden n/k/a Tracy Chavez (NFP)

NFP criminal opinions today (10):

D.W. v. State of Indiana (NFP)

Marvin Mallet v. State of Indiana (NFP)

Jennifer Fulton v. State of Indiana (NFP)

Tom Kenneth v. State of Indiana (NFP)

Brian C. Feely v. State of Indiana (NFP)

Joe M. Meyers v. State of Indiana (NFP)

Lawrence Ray Holley II v. State of Indiana (NFP)

Jay A. Thomas v. State of Indiana (NFP)

Terry Durbin v. State of Indiana (NFP)

William R. Robison v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 30, 2011
Posted to Ind. App.Ct. Decisions

Courts - Resources to Assist Self-Represented Litigants

This 59-page pdf handbook, dated June 2011, contains a great detail of information.

Posted by Marcia Oddi on Tuesday, August 30, 2011
Posted to Courts in general

Monday, August 29, 2011

Stage collapse - State asks Court to dismiss class-action suit in fair stage collapse

Two Three stories this evening.

Carrie Ritchie of the Indianapolis Star has just filed a story here, quoting from a news release from AG Zoeller's office. From the story:

By law, people who sue the state must warn the state of potential litigation by filing a tort claim notice and then give the state 90 days to respond before suing.

Attorneys at Indianapolis law firm Cohen and Malad didn’t give the state 90 days to respond before filing suit on behalf of Angela Fischer and all of the stage collapse victims. * * *

Attorney General Greg Zoeller said in the news release that his request for the dismissal is based on procedure, not the merits of the suit.

“We can’t have one claimant try to cut in line when other claimants are following the rules,” Zoeller said in the release.

The state has received six tort claim notices so far, and the people pursuing the class action suit were the only ones who didn’t follow the proper procedure, according to the release.

Here is the actual news release. Some quotes:
As of Monday, the Attorney General's Office has received tort claims from six individuals concerning the August 13 stage collapse at the State Fair. Five of the claimants followed the proper process. One did not.

At the same time as claimant Angela Fischer's lawyers filed a tort claim with the Attorney General's Office, her lawyers on August 22 also filed a lawsuit against the State and other entities in Marion County Civil Superior Court, alleging Fischer suffered emotional trauma from witnessing the incident.

Because by statute a lawsuit cannot be filed against the State until the State has had 90 days to review and approve or deny a tort claim, the Attorney General's Office today asked the court to dismiss Fischer's lawsuit.

"This is not a reflection on the plaintiff's claim, but there are deadlines and a process that must be followed under Indiana law. We can't have one claimant try to cut in line when other claimants are following the rules," Indiana Attorney General Greg Zoeller said.

The motion the State filed in court today in Fischer's lawsuit spells out the correct legal process and asks that the court dismiss Fischer's suit against the State. The tort claim Fischer separately filed still is being reviewed by the State along with those filed by other claimants.

Here is the "State Defendant's Motion to Dismiss Plaintiff's Complaint." Note Count II, Failure to Identify Claimant," pointing to "the Plaintiff also failed to identify the residence of the persons making the claim at the time of the loss" [ILB: that would be "on behalf of herself and all other similarly situated"] and continuing:
If Plaintiffs "Tort Claims Notice" is allowed it would open the door to virtually unlimited claimants making claims after the statutory allotted time expires; thereby depriving the state government of their statutory obligation to investigate even to confirm the person was actually at the Indiana State Fair at the time of the incident.
Notice also that the State of Indiana's motion is signed by Paul O. Mullin, Lewis and Wilkins LLP, Special Deputy Attorney General.

The second story is that a second wrongful death suit has been filed in the state fair tragedy, this one by her parents on behalf of 23-year-old Alina BigJohny of Fort Wayne. The suit was filed by Kenneth J. Allen, who earlier filed a wrongful death suit on behalf of Tammy VanDam, 42, of Wanatah.

From this WTHR 13 story:

The lawsuit names Mid-America Sound, ESG Security, and promoters of the Sugarland concert. It cites 22 acts of negligence, including the design and set-up of the stage, calling it overloaded with equipment and the tarp covering like a sail. He says the stage was like a house of cards ready to fall.

"Without question there was gross negligence on many levels, from the state of Indiana on down," said Allen. "Multiple entities had the opportunity to prevent this occurrence, to prevent these people from losing their lives and being harmed in the way they've been harmed. This was absolutely wrong. We are getting to the bottom of it. It's an outrage."

Until now only state-approved contractors have been allowed beyond the barriers at the accident site. But last week Kenneth J. Allen got an emergency injunction that could now allow his team into the wreckage.

"I don't want them in sole custody of the evidence. I just don't trust what they may or may not do with it," he said.

Alina BigJohny was single, and lived with her divorced mother. Allen says she was a partial dependent to her mother and that qualifies her for the wrongful death lawsuit. The term "dependent" doesn't take on the same meaning as someone dependent in tax terms.

WTHR has posted the 6-page complaint.

Third story. Russ McQuaid of Fox 59 is reporting:

The Marion County Prosecutor’s Office will take an active role in reviewing the investigations into the collapse of the main stage at the Indiana State Fair on August 13. The collapse of the Hoosier Lottery Grandstand killed seven people.

In a statement to Fox59, Chief Trial Deputy David Rimstidt said his office had been in touch with the Indiana inspector general and other investigators.

"The results of all official investigations will be provided to the prosecutor,” said Rimstidt. “We will review all information provided from any source public or private, and make a determination whether additional investigation is warranted."

Rimstidt stressed the Prosecutor’s Office's impartiality in such an investigation.

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to Stage Collapse

Law - Nancy Grace on Dancing With the Stars?

OMG!

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to General Law Related

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

In William Padula v. Timothy Leimbach (ND Ind., Van Bokkelen), a 19-page opinion, Judge Flaum writes:

Jerome Clement, a diabetic, was suffering from a hypoglycemic episode while driving when he veered off the road and into a parking lot. Officers called to the scene had reason to believe he was intoxicated. When he did not comply with their commands to step out of his car, they physically removed him, maced him two or three times, struck him four times with a baton to place handcuffs on him and prevent him from kicking his legs and flailing his arms, and kept him in the prone position until a paramedic arrived. The paramedic recognized Clement’s condition and eventually got him to a hospital, where he died of natural causes roughly two weeks later. William Padula, the Administrator of Clement’s estate, filed § 1983 claims against the responding officers, the City of East Chicago (“the City”), the City of East Chicago Police Department (“the Police Department”), and Chief Angelo Machuca Jr. (“Chief Machuca”) for wrongful arrest, excessive force, failure to train the officers, and condoning the use of excessive force, in addition to claims under state law. The district court granted the defendants’ motion for summary judgment on Padula’s federal claims and remanded his state law claims to state court. We affirm. * * *

While respectfully recognizing the tragic circumstances surrounding Jerome Clement’s death, we are compelled to AFFIRM the judgment of the district court granting summary judgment to the defendants on Padula’s federal claims. Accordingly, we also AFFIRM its decision to remand Padula’s remaining state law claims to state court.

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

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

For publication opinions today (4):

In Ronnie Q. Henderson v. State of Indiana, an 11-page opinion, Judge Barnes writes:

The sole restated issue we address is whether the decision of the United States Supreme Court in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009), applies retroactively to Henderson's case to require suppression of evidence found in his vehicle. * * *

[W]e conclude that this case is directly controlled by a decision from the Supreme Court that was issued three days after Henderson filed his opening brief in this appeal, Davis v. United States, – U.S. –, 131 S. Ct. 2419, 2432 (2011). In Davis, the Court addressed the question of whether a defendant whose case was not final before Gant was decided could rely upon Gant and the Fourth Amendment's exclusionary rule to suppress evidence that was discovered during a search that may have violated Gant, but which was conducted before Gant was decided. The Court ruled that the defendant could not rely upon the exclusionary rule in that situation. * * *

Because Henderson cannot rely upon Gant to seek suppression of evidence that was recovered during a search that predated Gant, the post-conviction court properly denied Henderson's PCR petition. We affirm.

In Steve Reed and Lee Ann Reed v. City of Evansville and Evansville Sewer & Water Utility, a 20-page opinion, Chief Judge Robb writes:
Steve and Lee Ann Reed appeal the trial court‟s order granting summary judgment to the City of Evansville and Evansville Sewer and Water Utility (collectively, the “City”). The Reeds raise one issue, which we expand and restate as three: whether the City‟s supplemental designated evidence must be stricken, whether the Reeds provided timely notice of their tort claims, and whether the City is otherwise entitled to judgment as a matter of law. The City raises on cross-appeal the issue of whether the trial court erred in denying its motion to strike portions of the Reeds‟ brief in opposition to summary judgment and supporting affidavits. We conclude that none of the City‟s supplemental evidence need be stricken, a question of fact remains as to whether the Reeds provided timely notice of their tort claims, the City is not otherwise entitled to judgment as a matter of law on the Reeds‟ claims, and the City‟s motion to strike was properly denied. Therefore, we reverse and remand for further proceedings.
In Danny R. Kitchen, Jr. v. Rebecca Kitchen (deceased), Michael Lake and Shelly Lake , a 9-page opinion, Judge Kirsch writes:
Danny R. Kitchen, Jr. (“Danny”) appeals the trial court’s order denying his motion for relief from judgment from the trial court’s order granting visitation to Michael Lake and Shelly Lake (collectively “the Lakes”), the maternal aunt and uncle of Danny’s minor child, K.K. Danny raises the following restated issues for our review: I. Whether the trial court erroneously concluded that it had the authority to award third party visitation to persons other than a grandparent, parent, or step-parent; and II. Whether Danny’s motion for relief from judgment was untimely. We reverse and remand. * * *

Here, the trial court lacked the authority to grant visitation to the Lakes because they did not have standing to petition for visitation with K.K. Because the lack of standing cannot be cured, that portion of the June 26th order granting visitation rights to the Lakes is void. We conclude that the trial court erred by denying Danny’s motion for relief from judgment on this ground and find that it was filed within a reasonable time.

In Term. of Parent-Child Rel. of D.D., J.J., and K.J.; E.J. v. I.D.C.S., a 10-page opinion, Judge Friedlander writes:
E.J. (Mother) appeals the involuntary termination of her parental rights to her children, D.D., J.J., and K.J. In so doing, Mother claims, among other things, that the Indiana Department of Child Services failed to establish the children had been removed from her care pursuant to a dispositional decree for at least six months prior to the filing of the involuntary termination petition, as is required by Ind. Code Ann. § 31-35-2-4(b)(2)(A) (West, Westlaw through 2011 Pub. Laws approved & effective through 6/28/2011). We reverse. * * *

In reaching our decision today, this Court is keenly aware of the fact that the safety and well-being of all three children hangs in the balance, and further delay in the final resolution of the children’s respective cases is certainly regrettable. Nevertheless, CCDCS alleged, but failed to prove removal according to the mandates of Indiana Code Section I.C. § 31-35-2-4(b)(2)(A). Accordingly, the trial court’s judgment terminating Mother’s parental rights to all three children must be reversed, and this case remanded for further proceedings consistent with this opinion.

NFP civil opinions today (3):

Daniel J. Reed v Saint-Gobain Containers, Inc. (NFP)

T.L.M. v. V.M. (NFP)

Jeffrey Brooks v. Henry and Iva McNeal (NFP)

NFP criminal opinions today (10):

Lonnie T. Bonds v. State of Indiana (NFP)

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

Randall E. Lesh v. State of Indiana (NFP)

Charles R. Sparks v. State of Indiana (NFP)

Ricky C. Newman v. State of Indiana (NFP)

Terry L. Holmes, Jr. v. State of Indiana (NFP)

Willie Sims v. State of Indiana (NFP)

Christopher Huston v. State of Indiana (NFP)

David Newton v. State of Indiana (NFP)

Arturo A. Ortiz v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 26, 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 August 26, 2011. It is one page (and 1 case) long.

The one case is National Wine & Spirits v. Indiana Alcohol & Tobacco Comm., et al.. The Supreme Court dismissed, as had the trial and appellate courts. See summary of March 2, 2011 COA opinion.

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to Indiana Transfer Lists

Courts - Two stories from California on public access to court proceedings

The first involves a California federal trial court that vidotaped a trial, but has been prevented from making the video public. The second relates to cameras in state trial courts.

"Throw open the Prop. 8 video records: It is time for the courts to acknowledge that video records are a natural, lawful and useful evolution in the American judicial tradition of open court proceedings" is the headline to this op-ed in the August 29th LA Times, authored by Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press. The op-ed begins:

"What transpires in the court room is public property." Writing those words in 1947, the U.S. Supreme Court affirmed a principle so intrinsic to our national character that it predates the Declaration of Independence.

America's founders believed that justice was facilitated by openness. In 1774, the first Continental Congress specifically stated that trials should occur "in open court, before as many of the people as choose to attend." Their reasoning was that public openness would ensure the honesty of judges, witnesses and jurors, who could not "injure [the defendant] without injuring their own reputation."

This concept was both simple and elegant: Open courtrooms provide a citizen's check on the justice system — so that those who fail to fulfill their duty in court honestly and competently are exposed, their testimony scrutinized, their character considered.

In today's fast-paced, globalized, digital society, audiovisual records are the best way to bring a trial or court hearing to life and to throw open the doors of our justice system to "as many of the people as choose to attend," not just those lucky enough to sit in the courtroom.

On Monday, a federal district court judge will consider whether to make public the video recording of the 2010 Perry vs. Schwarzenegger trial regarding California's constitutional amendment banning gay marriage, Proposition 8. It's astonishing that in the digital age, this issue is still even being debated.

From today's San Francisco Chronicle, this story, headed "Judge Tani Cantil-Sakauye backs off camera push," reported by Bob Egelko, begins:
California's chief justice says she'd like to encourage greater use of cameras in the courts to make the legal system more accessible, but she's moving cautiously in the face of resistance from trial judges.

Opposition from Superior Court judges around the state has forced a state Judicial Council committee to shelve a proposal that would have allowed cameras at trials unless a judge gave specific reasons to exclude them. Asked about the proposal in a KCBS radio interview that aired Sunday, Chief Justice Tani Cantil-Sakauye said, "I think in time it will have to be looked at again."

But first, she said, "I'd like to hear from the judges in the trenches. ... Those strong feelings have to be addressed."

Current rules give judges the last word on whether to allow filming and still photography, which have rarely appeared in California's trial courts since the televised murder trial of O.J. Simpson in 1995. Judges who reject cameras often cite concern about the safety of witnesses and a defendant's right to an impartial jury.

The committee proposal would have created a presumption in favor of cameras and allowed the news media to appeal a judge's rejection to a higher court.

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to Courts in general

Ind. Gov't. - Two well-worth-reading education stories

Tom Coyne of the AP had a long story Sunday headed "Ind. vouchers prompt thousands to change schools." It begins:

SOUTH BEND, Ind. (AP) -- Weeks after Indiana began the nation's broadest school voucher program, thousands of students have transferred from public to private schools, causing a spike in enrollment at some Catholic institutions that were only recently on the brink of closing for lack of pupils.

It's a scenario public school advocates have long feared: Students fleeing local districts in large numbers, taking with them vital tax dollars that often end up at parochial schools. Opponents say the practice violates the separation of church and state.

In at least one district, public school principals have been pleading with parents not to move their children.

"The bottom line from our perspective is, when you cut through all the chaff, nobody can deny that public money is going to be taken from public schools, and they're going to end up in private, mostly religious schools," said Nate Schnellenberger, president of the Indiana State Teachers Association.

Under a law signed in May by Gov. Mitch Daniels, more than 3,200 Indiana students are receiving vouchers to attend private schools. That number is expected to climb significantly in the next two years as awareness of the program increases and limits on the number of applicants are lifted.

Maureen Hayden of CNHI has an interesting story, here in the Clark County News & Tribune, headed "Committee studies capping superintendent salaries: Clark County superintendent has second largest salary in state."

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to Indiana Government

Ind. Courts - "Fifth fair lawsuit now pending"

WISH TV has posted this story this morning.

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to Indiana Courts

Ind. Gov't. - "A bonding proposal to pay off the state’s unemployment debt to the federal government could save Hoosier businesses hundreds of millions of dollars – if it’s legal."

That is the lede of this Sunday Fort Wayne Journal Gazette story reported by Niki Kelly. The story reports that:

[T]he Indiana Chamber of Commerce and other business groups have pushed the bonding option.

“We think it makes sense,” said George Raymond, a vice president for the state Chamber. “The constitutional question is still up in the air, but from a financial standpoint it would save money to bond out.”

The general idea would be for the state to issue bonds and use the money to pay off the loan from the federal government immediately. That would eliminate the federal penalty businesses are paying now. The state would then use money from the state premium increases to pay off the bond over the next 10 years.

Raymond believes the premiums are a secure revenue stream and the state could get an interest rate of between 2 percent and 2.5 percent, compared with the 4 percent charged by the federal government.

Rep. Dan Leonard, R-Huntington, the House Republican expert on the subject, said the state’s businesses could save more than $200 million over the 10-year life of the bond.

“We’ve had several meetings about it,” he said, noting a New York law firm has agreed to write an opinion saying the bonding is legal, though an Indiana firm has not.

“That raises a real red flag to me about its legitimacy,” Leonard said.

The Indiana Constitution limits the state’s ability to incur debt. Some believe the state can borrow only against real property, not a revenue flow.

But lawmakers back in the late 1990s used increased fees at the Bureau of Motor Vehicles to back highway bonds.

Texas recently bonded to pay off its unemployment debt, and claims it will save $110 million overall. Other states are considering the idea.

Chris Ruhl, director of Indiana’s Office of Management and Budget, said the administration is not actively considering the option.

He said there are constitutional hurdles and also noted that the cost of writing the bond might eat up any savings.

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to Indiana Government

Ind. Courts - "Pretrial diversion: Is it a judicial tool or a revolving door? Prosecutor's office gets much of its funding from fees paid by underage drinkers"

That is the headline to a great story in the Sunday Bloomington Herald-Times ($$$), reported by Laura Lane. (As this story touches on the Lauren Spierer case, it may not be behind the paywall.) Here is how the quite lengthy story begins:

Nearly 40 percent of the money that funds the Monroe County Prosecutor’s Office comes from fees paid by offenders, most of them Indiana University students, who consume alcohol in violation of the law.

The Pretrial Diversion Program allows alcohol offenders to pay hundreds of dollars and attend a substance abuse class to keep from getting a criminal conviction. The program, which also serves people charged with misdemeanor crimes such as disorderly conduct and trespass, contributed $835,217 to this year’s budget for the prosecutor’s office. The county general fund included another $1,404,566.

“It’s unsavory to think a prosecutor’s office is forced to operate in large part on money it makes on people they prosecute,” said Bob Miller, chief deputy prosecutor, who was Monroe County’s elected prosecutor from 1987 through 1994. “Yes, it’s alcohol-based.”

Many consider Bloomington a beer-and-liquor-saturated college town. Hordes of students spill out onto the streets after the bars’ 3 a.m. closing time, and more than half of all arrests in Monroe County — 54 percent last year — are rooted in alcohol, drugs or both.

Most often, those charged with alcohol-based crimes such as illegal consumption and public intoxication qualify for PDP, provided they have no prior convictions. First-timers whose blood-alcohol content is below .14 pay $404 for court costs and enrollment in a 7-hour drug-and-alcohol education class.

In exchange, the state dismisses the offense and the person’s criminal record is cleared if he or she stays out of trouble for one year.

Just like that.

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to Indiana Courts

Ind. Gov't. - More on "Farmland values up, set to go higher, experts say"

Updating this ILB entry from June 12, 2011, Justin Mack of the Lafayette Journal Courier reported August 21st:

A recent Purdue University survey finds that Indiana farmland values are at an all-time high.

According to the 2011 Purdue Farmland Value Survey, statewide increases ranged from 22.8 percent to 25.3 percent because of strong grain prices, low interest rates, strong farmland demand and a limited supply of farmland being brought to the market.

Experts report that this is the highest rate increase since 1977.

The survey found that the value of poor-quality farmland averaged $4,386 per acre, average-quality farmland $5,468 and top-quality farmland $6,521.

ILB: Check out the 12-page, August 2011 Purdue report here.

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to Indiana Government

Ind. Courts - "Dean Kruse still faces many legal battles: Auctioneer has made good on many debts in effort to get license back"

A lengthy feature story in the Sunday Fort Wayne Journal Gazette, reported by Angela Mapes Turner, on former state Representative Dean Kruse.

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to Indiana Courts

Environment - "Coal plant rules set off battle: Power industry warns of economic impact; environmentalists tout benefits"

Maureen Groppe, the Indianapolis Star Washington Bureau, reported yesterday in a story that begins:

WASHINGTON -- Hoosiers could face higher electric bills, power shortages and job losses when a series of new federal regulations is expected to hit coal-fired power plants in the coming months and years, the power industry claims.

Or, as environmentalists argue, the changes could lead to a cleaner environment, fewer health problems and small increases in power rates.

Those are the two outcomes being touted as power companies warn of a "regulatory train wreck" -- a combination of rules restricting the toxins and other pollutants they can send in the air, how their cooling systems use water and how they must dispose of waste.

The rules -- one of which was finalized last month -- are expected to reduce pollutants that cause cancer, neurological defects, heart and lung diseases and other health problems while reducing damage to animals, water systems and the air.

But the Indiana Utility Regulatory Commission told the Environmental Protection Agency this month that the combination of pending regulations "will dramatically impact coal-fired electricity generators and their customers over a very compressed time frame."

Indiana relies on coal-fired power plants for nearly all its energy.

A side-bar discusses the pending regulations.

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to Environment

Environment - Reminder: 2011 Edition of Indiana Environmental Statutes now available!

This is the new, 2011 edition of the annual publication, the Indiana Environmental Statutes, sponsored by the Environmental Law Section of the Indiana State Bar Association, that I edit and publish each year.

The 2011 General Assembly made many changes to the environmental laws!

It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.

This year the soft-bound volume is 570 pp. and costs $30.00 plus shipping (note that shipping is less if you pool orders).

Order online (a preview of several pages also is provided at this link).

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to Environment

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, August 21, 2011:

From Saturday, August 27th, 2011:

From late Friday afternoon, August 26th, 2011:

Posted by Marcia Oddi on Monday, August 29, 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 8/29/11):

Thursday, September 1st

Next week's oral arguments before the Supreme Court (week of 9/4/11):

Next Thursday, September 8th

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 8/29/11):

Next Tuesday, August 30th

Next week's oral arguments before the Court of Appeals (week of 9/4/11):

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

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


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

Posted by Marcia Oddi on Monday, August 29, 2011
Posted to Upcoming Oral Arguments

Saturday, August 27, 2011

Law - Are law firm email disclaimers legally binding?

No, according to Evan Brown, a Chicago lawyer at Hinshaw & Culbertson, who writes a blog about law and technology, answering questions in Ameet Sachdev's Chicago Law. A sample:

Q: Are email disclaimers legally binding?

A: In most circumstances, they would not be legally binding. What the disclaimers are trying to do is establish an agreement between the sender and its recipient that gives rise to a duty of nondisclosure. That's just like any other contract. Both parties have to agree to the terms of agreement. There's nothing in the act of simply receiving a message that would give rise to an agreement to keep the contents secret. The net effect most of the time is just to put you on notice.

Posted by Marcia Oddi on Saturday, August 27, 2011
Posted to General Law Related

Ind. Courts - "Knox City Council Considers Discontinuing City Court"

From K99.3 WKVI FM, dated Aug. 26th:

The Knox City Council is considering doing away with the Knox City Court. Following his annual report to the Council this week, Judge Charles Hasnerl ran into a barrage of questions by the Council and Mayor Rick Chambers when it was revealed that the court had run into the red. * * *

“The biggest problem is a shortfall,” said Judge Hasnerl. “We don’t have exact figures but if you just look at it in hard numbers, we’re looking at approximately a $40,000 difference between what the City Court budget is and what is actually going into the City’s General Fund.”

The shortfall occurred because the City has to share the court funds with the State and County.

“There’s breakdown set by the State of who gets what amount. The State gets the lion’s share of the court costs, the County does get a portion of that and the City is able to keep some of those court costs that goes into the General Fund.”

The Judge urged the Mayor and Council to go to their state legislators and the Indiana Association of Cities and Towns and have them fight to allow the City to realize more of the funds.

“The money is there to cover the cost of City Court. If you look at our budget for 2012, we’re $105,000-$108,000 for that office. We handle literally thousands of cases.”

If the city does away with the Court, it would mean the County would have to set up a Superior Court and that could be expensive. * * *

City officials though wonder why they should have to go in the hole at least $40,000 to maintain a court that takes care of not only the City, but the outlying areas too, including North Judson and Hamlet. Councilman Ron Parker asked City Attorney David Matsey to come back with some figures showing exactly how much the City is losing.

The Knox City Court handles at least 2,500 misdemeanor cases a year, as well as 8,000-10,000 ticket infractions.

Of the approximately $380,000 generated by the Court, the state took $200,000, the County $77,000, and the City of Knox took the other $103,000. That figure seems unfair to the Council.

Posted by Marcia Oddi on Saturday, August 27, 2011
Posted to Indiana Courts

Law - "The Evolution of Unconstitutionality in Sex Offender Registration Laws"

That is the title to this new paper posted on SSRN, authored by Prof. Catherine L. Carpenter of Southwestern Law School. The abstract:

More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary.

This particular article does not challenge the state’s legislative power to enact sex offender registration laws. Instead, this piece posits that, even if sex offender registration schemes were initially constitutional, serially amended sex offender registration schemes – what this piece dubs super-registration schemes – are not. Their emergence over the last several years demands reexamination of traditionally held assumptions that shaped the original legislation.

Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose. Ultimately, this article is a cautionary tale of legislation that has unmoored from its constitutional grounding because of its punitive effect and excessive reach.

Thanks to Legal Theory Blog for the link.

ILB Note: A quick search shows 16 references to "Indiana" in the paper.

Posted by Marcia Oddi on Saturday, August 27, 2011
Posted to General Law Related

Ind. Decisions - 7th Circuit ruling on live-streaming of high school state tournament games

The 7th Circuit decision August 24, 2011 in the case of Wis. Interscholastic Athletic Ass'n. v. Gannett Co. is the subject of a story in today's Indianapolis Star reported by Nat Newell. Some quotes from the story:

A federal appeals court ruling earlier this week upheld the Wisconsin Interscholastic Athletic Association's ability to sell exclusive rights to live-streaming state tournament games online. The Indiana High School Athletic Association had filed a brief in support of the WIAA's case and welcomed the decision.

"It's a big, big victory for state associations," IHSAA commissioner Bobby Cox said Friday. "It solidified the notion that we can protect our content."

The WIAA sued the Appleton Post-Crescent newspaper in 2008 after it streamed four high school football playoff games. A federal judge sided with the WIAA last year and the 7th Circuit Court of Appeals affirmed the decision, saying the First Amendment doesn't guarantee media outlets free broadcasting rights. * * *

State high school associations control the rights to postseason events while the high schools are the rights-holders for the regular season, according to IHSAA lawyer Bob Baker. Cox said when websites have live-streamed IHSAA events without permission, the IHSAA has filed cease and desist orders.

The story also notes that "Live-streaming is not currently a significant moneymaker for the IHSAA. The fee is $35 to $100 per game depending on the sport and playoff round."

From Wednesday's 33-page opinion, written by Judge Wood:

As the governing body for middle and high school athletic programs in Wisconsin, the Wisconsin Interscholastic Athletic Association (WIAA or Association) sponsors statewide post-season tournaments. In 2005, WIAA contracted with American-HiFi, a video production company, to stream its tournament events online. Under this contract, American-HiFi has an exclusive right to stream nearly all WIAA tournament games. If American-HiFi elects not to stream a game, other broadcasters may do so after obtaining permission and paying a fee. Notably, the exclusive broadcast agreement between American-HiFi and WIAA concerns entire game transmission; it does not prohibit media coverage, photography, or interviews before or after games. Private media may also broadcast up to two minutes of a game, or write or blog about it as they see fit, so long as they do not engage in “play-by-play” transmission.

Taking the position that these exclusive license agreements violate a supposed First Amendment right to broadcast entire performances, newspapers owned by Gannett Co., Inc., decided to stream four WIAA tournament games without either obtaining consent or paying the fee. In response, WIAA filed this declaratory judgment action in state court asserting its right to grant exclusive licenses. After Gannett removed the case to federal court, the district court entered summary judgment in favor of WIAA.

On appeal, the only issue presented concerns the First Amendment as it might apply to WIAA’s internet streaming rules. Gannett argues that WIAA, a state actor, cannot (ever, it seems) enter into exclusive contracts with a private company for the purpose of broadcasting entire events online, or, more broadly yet, to raise revenue. Gannett does not challenge other restrictions on media access to WIAA’s events, or even WIAA’s other exclusive licenses, like those WIAA has for television and radio broadcast. But the implications of Gannett’s arguments are staggering: if it is correct, then no state actor may ever earn revenue from something that the press might want to broadcast in its entirety. That is not correct. Gannett’s theory that coverage and broadcast are identical is both analytically flawed and foreclosed by Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). Simply put, streaming or broadcasting an event is not the same thing as reporting on or describing it. In addition, Gannett overlooks the importance of the distinction between state-as-regulator and state-as- proprietor, which in turn leads it to fail to appreciate the fact that tournament games are a performance product of WIAA that it has the right to control. Thus, because the exclusive agreements between WIAA and American- HiFi are otherwise not contested, and we find no reason in the First Amendment to change them, we affirm the district court’s judgment for WIAA. * * *

We conclude that WIAA’s exclusive broadcasting agreements for internet streaming are consistent with the First Amendment. This conclusion, as Zacchini implies, also supports WIAA’s right to charge a fee to a broadcaster wishing to stream a game that American- HiFi has decided not to publish. It is not, as Gannett contends, a “special tax on the press.” Minneapolis Star & Trib. Co. v. Minnesota Comm’r of Rev., 460 U.S. 575, 576 (1983). WIAA is not prohibiting the media from reporting on its events, nor is it imposing outrageous fees for media members to have access to games. It does not require the media to submit stories or blog posts to its editors before they are published. Any of those actions would make this a significantly different case. In the case before us, while our reasons differ from those that the district court gave, our ultimate conclusion is the same. WIAA is entitled to summary judgment in its favor, and we therefore AFFIRM the judgment of the district court.

Posted by Marcia Oddi on Saturday, August 27, 2011
Posted to Ind. (7th Cir.) Decisions

Friday, August 26, 2011

Ind. Gov't. - More on: Buss out as Florida Corrections Head

Updating this ILB entry from Wed., August 24th, here is some reaction from Florida, via an editorial in the St. Petersburg Times headed "Abrupt departure for pioneering corrections chief":

Gov. Rick Scott isn't saying much about why he forced out one of his best and brightest agency heads after just six months on the job. Highly regarded Department of Corrections Secretary Edwin Buss arrived from Indiana with progressive ideas and a reputation as a reformer. * * *

Buss ran the Indiana prison system for popular Republican Gov. Mitch Daniels, and he was courted by Michigan as well as Florida. He immediately began shaking things up by expanding programs for inmates re-entering society, rearranging shifts for corrections officers and closing prisons. * * *

The transition from a smaller state with less media scrutiny was not entirely smooth for Buss. He brought in too many fellow Hoosiers. He signed a deal with MSNBC to tape television episodes in a Florida prison without Scott's lawyers checking off. Most concerning, he mishandled a health care privatization contract and did not recognize a conflict of interest involving a consultant he hired to work on the contract. But those incidents suggest a need for more coaching and supervision from the Governor's Office, not a hastily forced departure. * * *

While Scott dodges questions about abruptly parting with one of his best hires, the message is clear to those running other state agencies: Don't deliver bad news, don't question the Legislature when it's wrong, don't do anything without checking first with Scott's office — and don't sell your old house back in Indiana.

Posted by Marcia Oddi on Friday, August 26, 2011
Posted to Indiana Government

Ind. Decisions - 7th Circuit issues nonprecedential disposition in NCAA case

In George, et al v. NCAA the Court orders:

This case comes to us on remand from the Indiana Supreme Court. Plaintiffs brought a proposed nationwide class action against the National Collegiate Athletic Association (“NCAA”) and Ticketmaster, alleging that both Defendants operated illegal lotteries to sell and distribute tickets for certain Division I championship tournaments. The district court dismissed Plaintiffs’ Second Amended Complaint with prejudice, and Plaintiffs appealed. This Court originally reversed the judgment of the district court ... but later vacated that decision and certified three questions to the Indiana Supreme Court * * *

On April 21, 2011, the Indiana Supreme Court responded to our certified questions and held that the NCAA’s ticket‐distribution process, as alleged by Plaintiffs, was not an illegal lottery under Indiana law and, therefore, declined to reach the remaining questions presented. See George v. Nat’l Collegiate Athletic Ass’n, 945 N.E.2d 150 (Ind. Apr. 21, 2011). In light of the Indiana Supreme Court’s express determination that the scheme alleged by Plaintiffs does not constitute an illegal lottery under the laws of Indiana, we now AFFIRM the judgment of the district court.

Here is the April 21, 2011 Indiana Supreme Court decision.

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

Ind. Decisions - One Indiana decision today from 7th Circuit, and one interesting case out of Illinois

In Serednyj v. Beverly Health Care (ND Ind., Miller), a 32-page opinion, Judge Richard L. Young (SD Ind., sitting by designation) writes:

Beverly Healthcare, LLC (“Beverly”), employed Victoria Serednyj as an Activity Director in Beverly’s Golden Living nursing home in Valparaiso, Indiana, from August 2006 to March 2007. In early January 2007, Serednyj learned she was pregnant, and, at the end of February 2007, she began to experience pregnancy-related complications. Her doctor placed her on bed rest for two weeks, and, at the end of this twoweek period, her doctor placed her on light duty restrictions. Serednyj asked to be accommodated, and Beverly denied her request under its modified work policy. Because Serednyj also did not qualify for leave under the Family Medical Leave Act (“FMLA”), Beverly terminated her employment. Serednyj then filed suit against Beverly, alleging gender discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), pregnancy discrimination under Title VII, as amended by the Pregnancy Discrimination Act (“PDA”), disability discrimination under the Americans with Disabilities Act (“ADA”), and retaliation. Beverly moved for summary judgment, which the district court granted. Serednyj now appeals. For the reasons set forth below, we affirm.
Here are some quotes from Judges Woods' 13-page opinion in Kasalo v. Harris & Harris, Ltd. (ND Ill.):
Mariana Kasalo sued Harris & Harris, Ltd., a collection agency, for violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. The parties agree that Harris attempted to collect an overdue hospital bill from Kasalo in a way that violated the Act and that Kasalo is entitled at least to statutory damages of $1,000. See 15 U.S.C. § 1692k(a)(2)(A). A modest sum, to be sure, but one that Congress has deemed necessary to deter abusive collection practices and to compensate victims. Given the parties’ agreement, one might expect that the case would have been resolved long ago; and, indeed, the parties made clear to the district court at the very start of the litigation that they intended to settle Kasalo’s individual claim. Yet here we are with an appeal from the district court’s decision to dismiss the case for want of prosecution. We have reached this point because Kasalo’s lawyer endeavored to transform the case into a class action, and the district court, frustrated by this effort, grew impatient and dismissed the whole action. The district court chose this course without considering its other options for whittling down claims or resolving the case outright. We are sympathetic to its view of the proposed class action, but we conclude that its decision to dismiss for want of prosecution was an abuse of discretion.

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

Stage Collapse - More on "Legal ramifications of state fair stage collapse"

This ILB entry from August 22nd (worth re-reading) outlined the law in Indiana and Hawaii regarding same-sex couples. I wrote it after I read a number of confusing stories in Indiana papers. From the entry:

It is unclear from what I've seen whether the couple had indeed married, or entered into a civil union, in another state. Hawaii has been mentioned.
As outlined in the entry, Hawaii does not recognize same sex marriage. The Hawaii legislature has passed a civil union law, but it will not take effect January 1, 2012.

Regardless, stories variously reported that the couple were married in Hawaii ten years ago, or had journeyed to Hawaii within the past year and entered into a civil union.

In the August 22nd ILB entry I did outline one possibility that at least might give some legs to an argument that the surviving member of the relationship might bring a suit for wrongful death in Indiana. That would be a "reciprocal benefit agreement." From the entry:

Since 1997, the U.S. state of Hawaii has offered reciprocal beneficiary registration for any adults who are prohibited by state law from marrying, including both same-sex and opposite-sex couples.

Reciprocal beneficiaries have access to a limited number of rights and benefits on the state level, including inheritance rights, workers compensation, the right to sue for wrongful death, health insurance and pension benefits for state employees, hospital visitation, and healthcare decisionmaking. Hawaii's RBR status also offers partners the option to jointly own property as "Tenants by the Entirety."

There are no state residency or U.S. citizenship requirements. The two individuals entering into a reciprocal beneficiary relationship must both be at least 18 years of age, and cannot be married or in another reciprocal beneficiary relationship.

Of course, a Defendant might argue that Indiana's Defense of Marriage Act would trump any argument that Indiana's wrongful death statute should extend rights to a partner to an out-of-state reciprocal beneficiary agreement. But it does present at least an opening.

The Hawaii RBR. Today I read this article in the Huffington Post, reported by Joseph Erbentraut, dated August 26th, and headlined "Indiana Stage Collapse: Beth Urschel, Injured Lesbian Widow, Sues & Challenges Marriage Law." Some quotes:

Beth Urschel, 49, is seeking at least $60 million in a wrongful death claim from Mid-America Sound Corporation, which owned the collapsed stage structure, among a bevy of other companies that helped put on the concert. Urschel is filing the suit on behalf of the estate of her partner of a decade, Tammy VanDam, 42, who died in the incident, the Indianapolis Star reported. The two lived in Wanatah, Ind., with VanDam's 17-year-old daughter. She was one of seven people killed in the collapse. * * *

But one obstacle for Urschel, who sustained significant nerve damage and lost part of her foot in the incident, and her Valparaiso, Ind.-based personal injury attorney Kenneth Allen in the case is that the state of Indiana does not legally recognize same-sex unions. Since 2004, the state has had a statute in place prohibiting same-sex marriage or anything similar from being recognized.

Nearly a decade ago, the couple registered as reciprocal beneficiaries in Hawaii. The legal status grants a limited number of rights including the right to sue for wrongful death, but such a status is not recognized outside of that state.

Allen freely admits this presents a bit of a quandary for his case, but he said he has "a couple of different angles" he intends to take in pursuing his client's claim.

One more thing. There may be more same sex couples who are victims of the stage collapse. Reciprocal beneficiary laws already exist in at least two states, Colorado and Hawaii. Indiana might consider passing such a law in the 2012 session, and making it retroactive to cover the State Fair incident.

Posted by Marcia Oddi on Friday, August 26, 2011
Posted to Stage Collapse

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

In Jeremy A. Lane v. State of Indiana , a 14-page opinion, Judge Friedlander writes:

Following a jury trial, Jeremy Lane was convicted of Attempted Theft, a class D
felony, and subsequently sentenced to the maximum term of three years. Lane presents three issues for our review: 1. Did Lane’s trial counsel render ineffective assistance? 2. Does the rule of lenity require reversal of Lane’s conviction for attempted theft or reduction of his sentence in accordance with the proportionality clause? 3. Is Lane’s sentence inappropriate? We affirm.
In Zarumin Coleman v. State of Indiana , an 18-page opinion, Judge Barnes concludes:
We are compelled to conclude a sentence of sixty years on convictions for Class A felony conspiracy to commit robbery and Class B felony possession of a firearm by a SVF violate the single episode of criminal conduct rule for non-“crimes of violence.” We reverse and remand for the trial court to resentence Coleman to a total term of fifty-five years, in accordance with this opinion. As for that fifty-five year term, it is not inappropriate in light of the nature of the offenses and Coleman's character, and we refuse to reduce it further to a term of forty-five years.
In Timothy-Patrick Treacy v. State of Indiana , a 12-page, 2-1 opinion, Judge Bradford writes:
In this somewhat unusual appeal, attorneys Paul Ogden and Patrick Stern ostensibly contend that the trial court erred in failing to provide Defendant Timothy-Patrick Treacy with representation at public expense. We conclude, however, that the true issue in this appeal has arisen from a fee dispute between Ogden and Stern and the Marion County Public Defender Agency (“the MCPDA”), none of whom is a proper party to this appeal. Concluding that we lack subject matter jurisdiction over this appeal, we dismiss. * * *

BAKER, J., concurs.
MAY, J., dissents with opinion. [which begins at p. 7 of 12] * * * The majority is correct that the lawyer who wrote Treacy’s brief wants the MCPDA to pay him. But I do not believe we can ignore, just because of counsel’s motivation, that Treacy’s brief did, in fact, argue Treacy was denied his constitutional right to trial counsel at public expense.

NFP civil opinions today (5):

Eric D. Smith v. D. Patton, Scott Fitch, Larry Bynum, Correctional Medical Services (NFP)

In Re: The Marriage of Jimmy Hovey v. Jennifer Hover (NFP)

In Re The Marriage of: R.B. v. M.B. (NFP)

S.G. v. Review Board of the Indiana Department of Workforce Development and T.C. (NFP)

Aaron Isby v. Edwin Buss, Indiana Parole Board, et al. (NFP)

NFP criminal opinions today (6):

Sean W. Clover v. State of Indiana (NFP)

Kevin Godfrey v. State of Indiana (NFP)

Charles F. Newby v. State of Indiana (NFP)

Mark Singer v. State of Indiana (NFP)

Brandon D. Williams v. State of Indiana (NFP)

Joel Rowley v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 26, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two disciplinary rulings of note posted

In In the Matter of Bruce J. Goldberg, filed Aug. 24, 2011, Respondent admitted to a pattern of misconduct involving his handling of clients' funds. Respondent is suspended "from the practice of law for a period of 90 days, beginning September 16, 2011, with 30 days actively served and the remainder stayed subject to completion of two years of probation."

In In the Matter of Anna E. Fulkerson Petitioner was on Sept. 14, 2009, suspended "for not less than one year without automatic reinstatement." What is involved in achieving reinstatement is outlined in this order.

Posted by Marcia Oddi on Friday, August 26, 2011
Posted to Ind. Sup.Ct. Decisions

Law - "Income Withholding Order Document Guidelines Released"

The Indianapolis Bar Association has posted the new federal income withholding order (IWO) documents, noting that "Private firms, attorneys, and courts authorized under state law to issue IWOs must use the OMB-approved IWO form for all child support income withholding by employers."

Posted by Marcia Oddi on Friday, August 26, 2011
Posted to General Law Related

Ind. Decisions - More on: Settlement in Indiana Class Action Lawsuit Regarding Compliance with the National Voter Registration Act of 1993

Updating this ILB entry from yesterday evening, Niki Kelly of the Fort Wayne Journal Gazette reports today:

U.S. District Court Judge Tanya Walton Pratt approved the settlement Thursday of a class-action lawsuit brought against Indiana officials in 2009 related to voter registration.

The settlement requires that Indiana implement specific measures to assure that thousands of low-income residents have the opportunity to register to vote at state public assistance offices, as mandated by the National Voter Registration Act.

The suit was brought by the Indiana State Conference of the NAACP, with other national groups involved.

“We are pleased that Indiana has agreed to resolve this litigation through settlement,” said Barbara Bolling, president of the Indiana NAACP. “This is an important step forward to ensuring that all Indiana residents have the opportunity to register to vote and participate in elections in our state.”

The act requires that state public assistance agencies offer voter registration to those who apply for benefits – such as welfare or food stamps – and to those who recertify or submit a change of address for benefits.

Indiana has already begun implementation of the settlement, and the number of people submitting registration applications through state public assistance offices in recent months has increased substantially.

Monthly average registration applications are now about 4,800, compared with about 100 before the filing of the lawsuit in July 2009, according to state officials. * * *

In the past several years, lawsuits filed by the same voting rights groups have forced other states that had been disregarding the National Voter Registration Act to comply, with sometimes dramatic results.

For example, applications from Missouri public assistance agencies skyrocketed from fewer than 8,000 a year to more than 130,000 a year following settlement of a suit in that state in 2009. Almost 290,000 low-income Ohioans have applied to register since a similar case was settled there at the end of 2009.

Posted by Marcia Oddi on Friday, August 26, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Appeals court overturns conviction of Muncie wife-killer Thomas: Eugene Curtis is now not guilty by reason of insanity"

The Wednesday, August 24th NFP decision of the Court of Appeals in the case of Thomas E. Curtis v. State of Indiana (NFP) is the subject of a story today in the Muncie Star-Press, reported by Douglas Walker. Some quotes:

MUNCIE -- The murder conviction of a Muncie man who plunged an ornamental dagger into his sleeping wife's chest has been overturned by the Indiana Court of Appeals.

In a Wednesday ruling, the three-judge panel ordered Delaware Circuit Court 4 Judge John Feick to find Thomas Eugene Curtis, now 47, not guilty by reason of insanity, and to begin "corresponding commitment proceedings."

Feick presided over a bench trial last fall and then found Curtis guilty, but mentally ill, of murder in the December 2009 slaying of 27-year-old Crystal Curtis. Last Jan. 29, the judge sentenced Thomas Curtis, a Navy veteran said to suffer from bipolar and "intermittent explosive" disorders, to 55 years in prison. * * *

The appeals court -- judges L. Mark Bailey, Paul Mathias and Terry Crone -- noted comments during Curtis' trial between Feick and psychiatrist Rebecca Mueller.

Feick asked Mueller if Curtis was placed in a state hospital, presumably after being found not guilty by reason of insanity, "they will kick him out as soon as they can, right?"

"In this day and age, probably so," the psychiatrist responded, adding it was possible Curtis could be placed in a group home with a court order to take his anti-psychotic medications.

In this week's ruling, Judge Bailey wrote that "although we are sympathetic to the trial court's concern for the community," rejecting an insanity defense because the defendant could continue to be a danger to society was not grounds to support a guilty-but-mentally-ill verdict.

Posted by Marcia Oddi on Friday, August 26, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Millions of US court records bound for shredder"

Michael Tarm of the AP has a very long story today on the plans of U.S. officials "to destroy millions of paper federal court records to save on storage costs, a plan that has raised the ire of some historians, private detectives and others." They say they would be too costly to digitize. Some quotes:

The U.S. National Archives and Records Administration says at least 10 million bankruptcy case files and several million district court files from 1970 through 1995 will be shredded, pounded to pulp and recycled. Files designated as historically valuable, however, will be kept in storage.

Federal archivists spent years consulting legal scholars, historians and others about which files to purge after realizing that sorting and digitizing just the bankruptcy cases would cost tens of millions of dollars. None of the civil or criminal cases up for destruction went to trial, and docket sheets that list basic information such as names of defendants and plaintiffs will be saved from each case.

Such reassurances haven't allayed concerns of some of those whose work relies on the paper documents.

Cornell Law School professor Theodore Eisenberg said it's precisely the mundane, every day records with no clear historical significance that, when looked at as a whole, are critical to establishing legal trends upon which court policy is often based.

"Something really important will be lost here," said Eisenberg, a former clerk at the U.S. Supreme Court for the late Justice Earl Warren. "We would lose any ability to assess trends over time. This is not just a matter of history, it is a matter of influencing basic policy today." * * *

Historians argue that it is impossible to say what records will be historically significant in 10, 50 or 100 years, since a file deemed inconsequential today might one day shed light on someone who emerges to prominence, from a presidential candidate to a murder suspect.

Beyond scholars, among those concerned is Don Haworth, a 35-year veteran private investigator in Chicago who said he frequently uses those same 1970-95 federal records. In his work, the slightest clue in the seemingly most mundane records could make or break a case.

He said that applies to run-of-the-mill bankruptcy records that could show a pattern of a businessman over a 30- or 40-year period of opening a business, then declaring bankruptcy and jilting creditors. He recently found that a target of his investigation lied when she said she'd never been involved in a federal case: She showed up as a witness in a federal case decades ago.

"While a record may not be pertinent to one individual, they may be a gold mine to others," Haworth said.

He also runs into other private investigators, scholars, historians and even writers doing research at Chicago's Federal Records Center, which houses records from Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.

Posted by Marcia Oddi on Friday, August 26, 2011
Posted to Courts in general

Thursday, August 25, 2011

Ind. Decisions - Settlement in Indiana Class Action Lawsuit Regarding Compliance with the National Voter Registration Act of 1993

Details here, via press release which begins:

Today, U.S. District Judge Tanya Walton Pratt approved the settlement of a class action lawsuit brought against Indiana officials to bring the State into compliance with the National Voter Registration Act (“NVRA”). The settlement requires that Indiana implement specific measures to assure that thousands of low-income residents have the opportunity to register to vote at state public assistance offices, as mandated by the NVRA. The suit was brought by the Indiana State Conference of the NAACP on behalf of all state public assistance clients injured by the State’s violation of federal law. Plaintiff and the class are represented by attorneys from the Lawyers' Committee for Civil Rights Under Law, Project Vote, Demos, the Chicago law firm of Miner, Barnhill & Galland, the NAACP, and the ACLU of Indiana.

The NVRA requires that state public assistance agencies offer voter registration to their clients when clients apply for benefits, and when they recertify or submit a change of address. The State already began implementation of the settlement prior to its approval by Judge Pratt, and the number of persons submitting registration applications through state public assistance offices in recent months has increased substantially. Monthly average registration applications are now approximately 4,800, compared to only about 100 prior to the filing of the lawsuit in July 2009.

Posted by Marcia Oddi on Thursday, August 25, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on: Disciplinary ruling issued re specialization

Earlier today the ILB posted this entry re a disciplinary action for attorneys publishing an advertisement promoting themselves as "Specializing in Bankruptcy Relief."

This afternoon I recalled a similar entry from a few years back and located it.

Read today's entry in conjunction with this ILB entry from Feb. 26, 2006.

Posted by Marcia Oddi on Thursday, August 25, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "$3 Million Award in Drunk Driving Lawsuit"

From a press release:

BLOOMINGTON, Ind., Aug. 25, 2011 /PRNewswire/ -- Mike Phelps, a Bloomington, Ind., based attorney with Ken Nunn Law Office, has won a $3 million lawsuit verdict in the death of Charles "C.J." McAlhaney, a 23-year-old man who was killed in a drunk driving car accident in New Castle in 2006.

It is one of the largest personal injury verdict awarded in Indiana in 2011. Ken Nunn Law Office took the case on a pro bono basis from a referral by Mothers Against Drunk Driving.

Phelps represented McAlhaney's mother, Robin Chaplin, in the case. A Henry County Circuit Court jury, presided by Judge Mary G. Willis, awarded Chaplin $3 million for the loss of an adult child.

Posted by Marcia Oddi on Thursday, August 25, 2011
Posted to Ind. Trial Ct. Decisions

Courts - "No charges against Wisconsin justice accused in choking"

The Chicago Tribune has this AP report, which begins:

Wisconsin Supreme Court Justice David Prosser won't face criminal charges over allegations that he choked a liberal colleague, a prosecutor said Thursday.
From the Milwaukee Journal-Sentinel:
Madison - Neither Supreme Court Justice David Prosser nor fellow Justice Anne Walsh Bradley will face criminal charges for an altercation this summer involving the two, a special prosecutor has determined.

Posted by Marcia Oddi on Thursday, August 25, 2011
Posted to Courts in general

Courts - "Woman who recorded cops acquitted of felony eavesdropping charges"

Recall these ILB entries from July 2 and July 10. Those stories involved videorecordings.

Today's story from the Chicago Tribune, reported by Jason Meisner and Ryan Haggerty, involves only an audio recording:

Frustrated, Tiawanda Moore quietly flipped on the recorder on her BlackBerry as she believed that two Chicago police internal affairs investigators were trying to talk her into dropping her sexual harassment complaint against a patrol officer.

But Moore was the one who ended up in trouble — criminally charged with violating an obscure state eavesdropping law that makes audio recording of police officers without their consent a felony offense.

On Wednesday, though, a Criminal Court jury quickly repudiated the prosecution's case, taking less than an hour to acquit Moore on both eavesdropping counts.

More from much later in the long story:
The ACLU filed a federal lawsuit in Chicago last year challenging the law, saying it was unconstitutional to prevent people from openly recording police officers working in public. A federal judge dismissed the suit, but the 7th U.S. Circuit Court of Appeals is scheduled to hear oral arguments next month in the ACLU's appeal of the decision.

"There's nothing private about a police officer doing his duties on the public way," said Harvey Grossman, legal director for the ACLU of Illinois. "The way that they police and conduct themselves is a matter of public importance."

But Pat Camden, a spokesman for the Fraternal Order of Police in Chicago, said the union supports the law because it prevents people from making baseless accusations against officers by recording them and then releasing snippets that don't reveal the full context of the incident.

Moore's case centered on an exception in the Illinois statute that allows citizens to obtain evidence through a surreptitious recording if they have a "reasonable suspicion" that a crime may be committed.

Posted by Marcia Oddi on Thursday, August 25, 2011
Posted to Courts in general

Law - "Should States Deregulate the Practice of Law?"

Updating this ILB entry from August 22nd, this WSJ Law Blog entry today collects together links to a number of articles.

Posted by Marcia Oddi on Thursday, August 25, 2011
Posted to General Law Related

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

Quotes from Haury v. Lemmon (ND Ind., Miller), a 5-page, per curiam opinion:

Michael Haury, a prisoner in Indiana, filed a pro se lawsuit under 42 U.S.C. § 1983 against prison personnel and other defendants, alleging that they violated his civil rights by interfering with the delivery of his legal mail and failing to provide a sufficient law library. The district court denied his request to proceed as a pauper on the ground that he had accumulated three strikes for the dismissal of three prior lawsuits, see 28 U.S.C. § 1915(g), and Haury appeals that decision. See Roberts v. United States Dist. Court for Northern Dist. of California, 339 U.S. 844, 845 (1950); Turley v. Gaetz, 625 F.3d 1005, 1008 n.3 (7th Cir. 2010). He also moves for leave to proceed as a pauper in this court. We conclude that only two of the cases named by the district court warrant strikes under § 1915(g), and accordingly grant Haury’s motion, reverse the district court’s decision, and remand for further proceedings. * * *

It remains to be seen whether there is a viable claim here, and even whether this case might earn Haury his third strike. But at least for now, the in forma pauperis gate remains open to him. Haury’s request to proceed in forma pauperis on appeal is GRANTED. We REVERSE the district court’s finding and REMAND the case for the district court to reconsider whether Haury may proceed as a pauper.

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

Ind. Decisions - Disciplinary ruling issued re specialization

In the Matter of Danny L. Whitten and Stacey E. Whitten, dated August 19, 2011:

Stipulated Facts: In a 2010-2011 "Yellowbook," Respondents published an advertisement promoting themselves as "Specializing in Bankruptcy Relief." Neither Respondent has been certified as a specialist by an Independent Certifying Organization accredited by the Indiana Commission for Continuing Legal Education.

The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondents have no disciplinary history; (2) Respondents were cooperative with the Commission; and (3) Respondents are remorseful.

Violation: The parties agree that Respondents violated Indiana Professional Conduct Rule 7.4(d) (formerly Rule 7.2(c)(4)), which prohibits making a statement of specialization when not authorized.

Discipline: The parties propose the appropriate discipline for each Respondent is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand on each Respondent for their misconduct. The costs of these proceedings are assessed against Respondents.

Posted by Marcia Oddi on Thursday, August 25, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

[ILB Note: Out yesterday and missed a slew of COA opinions. Will try to catchup with them this weekend.]

For publication opinions today (4):

In Margarita Aguirre v. State of Indiana , an 11-page, 2-1 opinion, Judge Brown writes:

Based upon our review of the record, we conclude that there is insufficient evidence of probative value from which the trial court could reasonably have found beyond a reasonable doubt that Aguirre committed resisting law enforcement as a class A misdemeanor. * * *

For the foregoing reasons, we reverse Aguirre's conviction for resisting law enforcement as a class A misdemeanor.

KIRSCH, J., concurs.
BAKER, J., dissents with separate opinion. [which begins, at p. 10 of 11] I must respectfully dissent. While Aguirre's version of events would lead one to conclude that she is not guilty of resisting law enforcement, this Court is not permitted to reweigh the evidence.

In Company v. Review Board , a 17-page opinion, Judge Najam writes:

S.S. LLC (“S.S.”)[1] appeals the decision of the Review Board of the Indiana Department of Workforce Development (“Review Board”) in favor of D.H. on her claim for unemployment benefits. S.S. raises a single issue for our review, namely, whether the Review Board erred when it concluded that D.H. was not terminated for just cause. * * *
________
[1] The majority agrees with the recent opinion in LaDon A. Moore. v. Review Board of the Indiana Department of Workforce Development, No. 93A02-1005-EX-529, 2011 WL 3556918 (Ind. Ct. App. Aug. 12, 2011) [see ILB summary here, and also this dissent by CJ Robb on Aug. 18], on the use of names in workforce development cases, but in the interest of presenting another position on this issue, and to facilitate further discussion and debate, we have agreed to publish this opinion using initials in this case.

ROBB, C.J., concurs.
CRONE, J., concurs with separate opinion. [which begins on p. 11 of 17] I fully agree with Judge Najam’s decision. I write separately, however, because I feel that this decision should be published to underscore the importance of complying with Indiana Administrative Rule 9(G)(1)(b)(xviii) by using the parties’ initials instead of their full names in Review Board case captions and opinions. * * *

I have no position on the propriety of or the wisdom behind the rule as written, but I believe that we must follow it until such time as it is repealed by our supreme court. I would encourage our supreme court to visit this issue by court opinion or rule change to give proper guidance in and finality to this matter.

In Argonaut Ins. Co., et al. v. Christopher Jones , a 30-page opinion, Judge Bailey writes:
Argonaut Insurance Company (“Argonaut”) appeals from the trial court's entry of summary judgment and subsequent entry of declaratory judgment against it and in favor of Christopher T. Jones (“Jones”), individually and as personal representative of the Estate of Monroe County Sheriff's Deputy Sarah I. Jones (“Deputy Jones”), after Deputy Jones was struck and killed by a vehicle driven by Bree Myers (“Myers”) while Deputy Jones, on-duty and acting in her capacity as a Deputy Sheriff in Monroe County, was directing traffic around a car accident site on Indiana State Road 45. We affirm. * * *

The trial court did not err when it granted summary judgment to Jones on the question of whether Deputy Jones was using her patrol car when Myers struck her, because Deputy Jones maintained an active relationship to the patrol car in her work at the accident scene, regardless of the amount of time she was away or her distance from the car, and that active relationship was within the reasonable expectations of the parties. The trial court also did not err when it concluded in its Declaratory Judgment Order that Deputy Jones's injuries and
30
death resulted from her use of the patrol car, as such use and resultant injury were within the reasonable expectations of the Board of Commissioners and Argonaut when they entered into the insurance agreement. Finally, we conclude that the employment exception does not apply in this case, as application here is contrary to the reasonable expectations of the parties and would create an essentially illusory policy of insurance in contravention of this State's established public policies favoring coverage.

In John Fiederlein, M.D. v. Alex Boutselis, M.D. and Steve Jones, M.D., a 23-page opinion, Judge Kirsch writes:
John Fiederlein, M.D. (“Fiederlein”) filed a complaint against Alex Boutselis, M.D. (“Boutselis”) and Steve Jones, M.D. (“Jones”) (collectively “the Defendants”) 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, L.L.C. (“Unity”). 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 order, raising the following consolidated issues:
I. Whether the trial court erred when it granted summary judgment in favor of the Defendants on Fiederlein's claims of breach of contract, promissory estoppel, unjust enrichment, interference with employment relationship, and fraud; and
II. Whether the trial court erred in denying Fiederlein's motion for summary judgment as to the Defendants' counterclaim.
The Defendants cross-appeal, raising the following, restated issue:
III. Whether the trial court erred when it failed to enter summary judgment against Fiederlein on all of his claims, including his unjust enrichment claim as it pertains to the capital account refunds.
We affirm in part and reverse in part.
NFP civil opinions today (5):

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

Employers Mutual Casualty Co. v. Governmental Interinsurance Exchange (NFP)

Ibad U. Ansari v. Home Bank S.B. (NFP)

Linda S. Wetzel v. John E. Wetzel (NFP)

O&F Properties, Inc. v. Timothy A. Mills, et al. (NFP)

NFP criminal opinions today (5):

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

Jatun Combs v. State of Indiana (NFP)

Jeremy K. Hiday v. State of Indiana (NFP)

Keith Nemer v. State of Indiana (NFP)

Jerome Wilkins v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 25, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Story provides details surrounding William Minnick resentencing

"Relief the prevailing feeling in murder case aftermath" is the headline to this long story today in the Greencastle Banner Graphic, reported by Eric Bernsee. A sample:

[Putnam County Prosecutor Tim Bookwalter] was impressed with the judge's [Judge Andrea McCord] meticulous five-page order of sentence.

"It was well reasoned and very detailed," he said, indicating it seemed apparent she knew the sentence order would be closely scrutinized if and when an appeal is considered.

A day later, Bookwalter was also able to shed a little more light on how the proceedings nearly never got started.

The case was due to be considered at 1:30 p.m., but 15 minutes went by before any of the court officials even entered the courtroom. And when they did, it was only to call for the probation officers sitting in the back of the room.

Twenty minutes later Bookwalter emerged from the judge's chambers to tell the Payne family Minnick did not want to come out and "was going crazy in the cell back there."

Minnick reportedly became physically disruptive upon learning that a packet of papers he had mailed from the Indiana State Prison at Michigan City had not been received in time by the court.

Minnick also sent his attorney, Monica Foster, out to ask his pen-pal girlfriend Karen Groff to leave the courtroom lest she hear bad things about him.

"We came within an inch of him not going in there (the courtroom)," Bookwalter said, admitting he had begun to agonize over what he might have to tell the Payne family that was gathered in the courtroom gallery.

"The defense lawyers did not want him in that courtroom," he said.

And Bookwalter certainly didn't want to tell the Paynes the long-awaited proceedings would have to be postponed.

The defense was still trying to play the mentally ill card at that point. They seemed unsure of what Minnick might say or do in the courtroom and tried in vain to convince Judge McCord that he was incompetent to participate in his own defense.

"Yet when he walked in," Bookwalter said, "he was a perfect gentleman."

Posted by Marcia Oddi on Thursday, August 25, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Defense seeks to suppress video in Martinsville 11-year-old’s murder trial"

From a story dated August 23 in the Martinsville Reporter-Times (no reporter identified):

Statements made by Nathan Butler, 11, related to the shooting of his 6-year-old brother Andrew Frye after he waived his right to an attorney should not be allowed into court, the boy’s attorney John Boren said during a hearing Tuesday in Morgan County Superior Court II.

Judge Christopher Burnham heard arguments on the request to suppress the video taken on July 1, the day after the younger brother was shot with a .22 gauge rifle. Butler is charged with murder and reckless homicide.

Butler’s case remains in juvenile court, which is closed to the public and the media, but the evidence suppression hearings are not closed.

Without the video, Morgan County Prosecutor Steve Sonnega said he will have trouble getting a conviction.

“Without that all we really have him on is false informing,” Sonnega said. “First he said he shot (Frye), now he says he didn’t.” * * *

Boren said that Butler was not given a proper time to consult with his parents or others before waiving his right to have an attorney present during a videotaped interview with a police officer the day after his brother’s death. The attorney cited an Indiana Supreme Court case, DM vs. State, which he said establishes the timeline and procedure for receiving a waiver.

The case, he said, sets out that a suspect’s Miranda Rights have to be given to both the parent and the juvenile. Then, the juvenile must be given time for meaningful consultation before being asked to sign a waiver giving up the right to have an attorney present.

“There was no waiver because there must be meaningful consultation” before the waiver was signed, Boren said. “The officer never said (Butler) didn’t have to talk to him.

“Here you have an 11-year-old talking to a police officer in a jail, what do you think he’s going to do.”

Morgan County Prosecutor Steve Sonnega said the consent was implied and that the case, DM vs. State, allows for implied consent. [ILB: Here is D.M. v. State, a June 22, 2011 Supreme Court opinion.]

“We believe there is no support for Mr. Boren’s request for suppression,” Sonnega said during the hearing. “Whether you receive consent in sequence or not, the parents and grandparents were in there. The young man waived his rights. The parents joined in and they did not think it was inappropriate for him to give consent.”

Posted by Marcia Oddi on Thursday, August 25, 2011
Posted to Indiana Courts

Courts - Florida Supreme Court rules Gov. Scott violated separation of powers

The Florida Supreme Court ruled August 16th in a 5-2 opinion that, per a long Miami Herald story reported by Janet Zink:

Gov. Rick Scott “overstepped his constitutional authority and violated the separation of powers” with an executive order freezing all pending rules until he could approve them.

In a 5-2 opinion, the court concluded that rule-making authority belongs to the Legislature, not the governor.

“The Legislature retains the sole right to delegate rulemaking authority to agencies,” the majority justices wrote, “and all provisions in [Scott’s executive orders] that operate to suspend rulemaking contrary to the Administrative Procedures Act constitute an encroachment upon a legislative function.”

The story includes a link to the 50-page opinion in Whiley v. Scott.

The WSJ Law Blog's Nathan Koppel had a post about the ruling on August 17th. Some quotes:

“The Legislature retains the sole right to delegate rulemaking authority to agencies,” the Florida high court held, “and all provisions in [Scott’s executive orders] that operate to suspend rulemaking contrary to the Administrative Procedures Act constitute an encroachment upon a legislative function.”

So far, Scott’s office of Regulatory Review has rejected a few dozen regulations, related to such procedures as record-keeping by home health aides, and has delayed many other rules, according to the Herald.

“This ruling seems very illogical,” a spokesman for the governor told the Law Blog. “These agency heads report directly to the governor and they are employed at the pleasure of the governor. It makes no sense that the governor can’t hold them accountable when it comes to rulemaking.” He added: “Gov Scott made a promise during his campaign that part of his plan to create jobs in this state was to get rid of onerous regulations and unnecessary red tape.”

Posted by Marcia Oddi on Thursday, August 25, 2011
Posted to Courts in general

Ind. Decisoins - "Court rules state overstepped by taking dogs to recoup taxes"

Updating last Saturday's ILB entry, headed "Tax Court rules in puppy mill case; holds use of jeopardy assessments not warranted," reporting on the Tax Court ruling August 19th in the case of Virginia Garwood, et al. v. Indiana Dept. of State Revenue, and this ILB entry dated August 22nd, quoting from a NWI Times story headed "Court rejects tax tool used to close puppy mill," Grace Schneider of the Louisville Courier Times has a story today which includes some additional information. Soime quotes:

The owners of a dog-breeding business near Mauckport whose dogs and puppies were seized in a state-led raid two years ago have won a round in court against the Indiana Attorney General’s office.

The Indiana Tax Court ruled last Friday that the state overstepped its authority when it used a provision of state law to recover unpaid income and sales taxes from Virginia Garwood and her daughter Kristin Garwood of Breezy Valley Dairy Farm.

The ruling is the latest legal skirmish between the state and the Garwoods.

Neither Virginia Garwood nor Kristin Garwood could be reached for comment Wednesday, but their lawyer, Stacy Newton of Evansville, said the women feel vindicated by the ruling.

“They’ve been villified in that area,” Newton said. “There were other methods that the state could have used” to recover the unpaid taxes. * * *

The Garwoods pleaded guilty in Marion Superior Court in Indianapolis last year to separate misdemeanor tax evasion charges filed by the attorney general’s office. The elder Garwood also pleaded guilty to felony income-tax evasion.

But the women fought back on two fronts. They sued the attorney general’s office, the state and other parties involved in the seizure, arguing that their constitutional rights were violated because their animals were taken without due process. That case is pending in federal court.

They also appealed a ruling in a Harrison Circuit Court in the civil tax case, which resulted in the latest tax court ruling against Zoeller’s office and the Indiana Department of Revenue.

The ILB will post some of the federal court documents, perhaps later today.

More from today's LCJ story:

Noting that a “media circus roiled” around the seizure, [Judge] Wentworth wrote that “the department wielded the power of jeopardy assessment as a sword to eliminate a socially undesirable activity and close down a suspected ‘puppy mill,’ not to fill the state coffers with the tax liabilities the Garwoods purportedly owed.”

Posted by Marcia Oddi on Thursday, August 25, 2011
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - More on "Johnson County Prosecutor Brad Cooper under review following accusations he staked out the home of a sheriff's deputy"

Updating last evening's ILB entry, Diana Penner's story in this morning's Indianapolis Star begins:

The Johnson County sheriff has asked the Indiana Supreme Court's disciplinary commission to review an incident involving the county prosecutor, a police officer with a troubled history and the prosecutor's alleged romantic pursuit of another county employee.

Posted by Marcia Oddi on Thursday, August 25, 2011
Posted to Indiana Government

Wednesday, August 24, 2011

Ind. Decisions - 7th Circuit "on whether the new crack mandatory minimum sentencing provisions of the Fair Sentencing Act apply in cases involved offenses pre-dating the new law but not yet sentenced"

Read Douglas A. Berman's entry today in his Sentencing Law Blog if this is one of your issues.

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

Ind. Gov't. - More on: Steve Johnson will be retiring from IPAC July 1

Updating this ILB entry from June 13th, the ILB has learned (and is the first to report) that David Powell, former Greene County Prosecutor, will be the new Indiana Prosecuting Attorneys Council Executive Director.

Posted by Marcia Oddi on Wednesday, August 24, 2011
Posted to Indiana Government

Ind. Gov't. - "Johnson County Prosecutor Brad Cooper under review following accusations he staked out the home of a sheriff's deputy"

That is the headline to a story this evening reported by Myrt Price of 6News.

[More] Here is much more on the story, from Diana Penner of the Indianapolis Star.

Posted by Marcia Oddi on Wednesday, August 24, 2011
Posted to Indiana Government

Ind. Gov't. - Breaking News: Buss out as Florida Corrections Head

From a just-issued press release by Florida Governor Rick Scott:
Tallahassee, Fla – Governor Rick Scott announced today that he has accepted the resignation of Edwin G. Buss as Secretary of Florida’s Department of Corrections. Buss will be replaced by Deputy Commissioner of the Florida Department of Law Enforcement Ken Tucker. * * *

Regarding Buss, Governor Scott said differences in philosophy and management styles arose which made the separation in the best interests of the state. The Governor appreciates Secretary Buss’s service to the state and wishes him well in his new endeavors.

How long was he there?

See this story from Dec. 28, 2010, headed "Governor-Elect Rick Scott taps Edwin G. Buss to run Dept. of Corrections." And this interesting story from the Jan. 25, 2011 Corrections Reporter, where you will find that when Buss started this year, the "Florida Department of Corrections [had already] had two secretaries in the past four years."

Within the past few weeks, these stories have appeared in the Florida papers:

"New state prison boss pushing big changes" - this long July 30th story by St. Petersburg Times columnist Steve Bousquet builds speed the further you read, until, near the end:

Buss soon hired a health care policy adviser, Elizabeth "Betty" Gondles, who also worked for him in Indiana, for a 10-month contract at $180,000. Gondles is overseeing the selection of a private vendor to handle all of the prison system's health care.

He banned smoking in prisons, effective this coming September. The other day Buss issued an edict banning pornography in all prisons, after he saw a Playboy centerfold tacked to a wall in a South Florida prison.

He wants correctional officers to work 12-hour shifts, not eight-hour ones, and when the guards union balked, the two sides agreed to a compromise: a pilot program at Jefferson Correctional Institution in Monticello.

"Gov. Scott's office pulls plug on MSNBC's 'Lockup' taping in Florida prison," from the Aug. 19th Bradenton.com.

"Prisons chief replaces top-level staff: Edwin Buss, Florida’s new corrections department chief, has hired more than a dozen people from his former state of Indiana," from the August 23rd issue of the Miami Herald. The long story includes a sidebar listing the former Indiana employees and their Florida salaries. It also includes this quote near the end:

Under Buss’ direction, the notoriously insular prison system has become an incubator of new ideas from special prison dorms for veterans to more educational and re-entry efforts to reduce the chance that inmates will return to prison.

Two setbacks

But Buss’ zeal to improve the system has hit two hurdles in the past week, suggesting growing tension between Buss and the governor’s office.

Scott’s staff questioned Buss’ decision to sign a deal with MSNBC to tape six episodes of its Lockup series at Santa Rosa Correctional Institution in Milton and ordered the contract scrapped. The network would have paid the state $110,000, and the prison system would have had final say on which scenes were used.

The Governor’s Office also ordered changes to a bid proposal to privatize all prison healthcare services. The bid specified that a vendor must be accredited by the American Correctional Association.

The bid’s author, healthcare consultant Betty Gondles — who also did work for Buss in Indiana — is the wife of ACA executive director James Gondles. Gondles was hired on a 10-month contract for $180,000.

Posted by Marcia Oddi on Wednesday, August 24, 2011
Posted to Indiana Government

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

In US v. Snow (SD Ind., McKinney), a 15-page opinion, Judge Rovner writes:

A gun was discovered on Ernest R. Snow’s person after he was pulled over on suspicion of a burglary attempt and ordered out of his vehicle for a protective patdown. See Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968). As Snow had prior felony convictions, he was indicted pursuant to the felon-in-possession statute, 18 U.S.C. § 922(g)(1), and ultimately pleaded guilty to that charge. Snow contends, however, that his motion to suppress evidence related to the gun should have been granted, because the police officers who stopped him lacked any reasonable grounds on which to believe that he might be armed and that the order to exit his vehicle for purposes of a protective frisk was therefore invalid. We disagree and affirm.
In Ortiz v. Webster (SD Ind., McKinney), an 18-page, 2-1 opinion, Judge Bauer writes:
Both the dispute about the need for surgery and Dr. Webster’s own failure to resolve the issue through the further evaluation that he himself considered necessary were evident in the record before we remanded the case. * * * Because we previously identified a fact dispute over whether the extended delay in Ortiz’s treatment amounted to deliberate indifference and because Dr. Maturi’s opinion fails to resolve that dispute, we remand for trial. * * *

KANNE, Circuit Judge, dissenting. I agree with the majority’s opinion insofar as it forecloses Ortiz’s claim that there was a policy which forbade medical trips for all death-row inmates. There is no evidence of such a policy, and the majority rightly rejects this argument. I also agree that Ortiz has demonstrated that the pterygia in one of his eyes qualified as a serious medical condition. I part company with the majority, however, as to its conclusions regarding Dr. Webster’s state of mind. I do not believe that the facts of this case give rise to any possibility of deliberate indifference on the part of Dr. Webster during the time period of the complaint, and would therefore affirm the grant of summary judgment in Dr. Webster’s favor.

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

Ind. Courts - More on "Lawmakers to debate illegal entry controversy"

Updating this ILB entry from yesterday, a just-posted story from TheFranklinOnline by Shelby Salazar begins:

INDIANAPOLIS – A study committee reviewing a controversial court decision that found Hoosiers do not have the right to resist police officers they believe are entering their homes illegally has no direction after its second meeting Wednesday.

Sen. Brent Steele, chairman of the Barnes v. State Subcommittee, said at the end of the meeting that his “crystal ball is not really that clear today.”

“Right now I'm not putting my mind at trying to come up with a legislative fix,” said Steele, R-Bedford. “I just don't know exactly where we are going.”

The four-person committee compromised of Steele, Sen. Tim Lanane, D-Anderson, Rep. Linda Lawson, D-Hammond, and Rep. Eric Turner, R-Cicero, listened to more than two hours of testimony, mostly from Hoosiers opposed to the ruling.

A brief video accompanying the story gives samples of what various speakers had to say. A plus, the name of each speaker is shown.

Posted by Marcia Oddi on Wednesday, August 24, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Important invasive species/Asian carp opinion issued in typescript this afternoon by 7th Circuit

State of Michigan and Grand Traverse Band of Ottawa and Chippewa Indians v. Army Corp of Engineers (ND Ill.)

The short answer is in this brief AP story posted a few minutes ago:

A federal appeals panel has rejected a request by five Great Lakes states for an immediate order to close shipping locks on Chicago area waterways and take other steps to prevent Asian carp from invading Lake Michigan. The three-judge panel of the 7th US Circuit Court of Appeals ruled Wednesday against the request by Michigan, Minnesota, Ohio, Pennsylvania and Wisconsin. The states were appealing a decision by a federal district judge in Chicago last December.
The 57-page opinion is written by Judge Wood. From the opinion (emphasis added by ILB):
Ambitious engineering projects that began at the time that the City of Chicago was founded have established a waterway in northeastern Illinois that connects Lake Michigan to the Mississippi watershed. (Additional links between the Mississippi and the Great Lakes exist elsewhere, from northern Minnesota to New York.) The system of canals, channels, locks, and dams, with which we are concerned, known today as the Chicago Area Waterway System (or CAWS, as the parties call it in their briefs), winds from the mouth of the Chicago River and four other points on Lake Michigan to tributaries of the Mississippi River in Illinois. The navigable link has been a boon to industry and commerce, and it supports transportation and recreation. Public health crises that once were common because the Chicago River emptied the City’s sewage into the lake – the City’s freshwater supply – vanished thanks to the Chicago Sanitary and Ship Canal, which reversed the flow of the Chicago River so that it now pulls water from the lake, into the CAWS, and down toward the Mississippi. During heavy rains and seasonal high waters in the region, the CAWS is used to control flooding.

This effort to connect the Great Lakes and Mississippi watersheds has not been without controversy. At the turn of the 20th century, Missouri sued in the Supreme Court to stop Illinois from opening the Sanitary and Ship Canal. An opinion by Justice Holmes rejected Missouri’s challenge; the Court concluded that the state had not presented enough evidence to establish that the flow of sewage toward the Mississippi would create a public nuisance. Missouri v. Illinois, 200 U.S. 496 (1906); see also Missouri v. Illinois, 180 U.S. 208 (1901). Several years later a broader fight erupted among the states bordering the Great Lakes, and the Court began to issue decrees setting the maximum rate at which Illinois may divert water away from Lake Michigan and into the CAWS. E.g., Wisconsin v. Illinois, 449 U.S. 48 (1980); Wisconsin v. Illinois, 388 U.S. 426 (1967); Wisconsin v. Illinois, 311 U.S. 107 (1940); Wisconsin v. Illinois, 278 U.S. 367 (1929). Nor has opening a pathway between these bodies of fresh water come without costs. This appeal requires us to consider one of those costs: the environmental and economic harm posed by two invasive species of carp, commonly known as Asian carp, which have migrated up the Mississippi River and now are poised at the brink of this man-made path to the Great Lakes. The carp are voracious eaters that consume small organisms on which the entire food chain relies; they crowd out native species as they enter new environments; they reproduce at a high rate; they travel quickly and adapt readily; and they have a dangerous habit of jumping out of the water and harming people and property.

In an attempt to stop the fish, Michigan, Minnesota, Ohio, Pennsylvania, and Wisconsin, all states bordering the Great Lakes, filed this lawsuit against the U.S. Army Corps of Engineers (the Corps) and the Metropolitan Water Reclamation District of Greater Chicago (the District), which together own and operate the facilities that make up the CAWS. The plaintiff states allege that the Corps and the District are managing the CAWS in a manner that will allow invasive carp to move for the first time into the Great Lakes. The states fear that if the fish establish a sustainable population there, ecological disaster and the collapse of billion-dollar industries that depend on the existing ecosystem will follow. They say that the defendants’ failure to close down parts of the CAWS to avert the crisis creates a grave risk of harm, in violation of the federal common law of public nuisance, see American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), and they advance a related claim against the Corps based on the Administrative Procedure Act (APA), 5 U.S.C. § 702. The states asked the district court for declaratory and injunctive relief and moved for a preliminary injunction that would require the defendants to put in place additional physical barriers throughout the CAWS, implement new procedures to stop invasive carp, and expedite a study of how best to separate the Mississippi and Great Lakes watersheds permanently. Other parties intervened to protect their interests – the Grand Traverse Band of Ottawa and Chippewa Indians on the side of the plaintiffs, and the City of Chicago, Wendella Sightseeing Company, and the Coalition to Save Our Waterways as defendants. The district court denied the motion for a preliminary injunction, and the states appealed immediately. See 28 U.S.C. § 1292(a)(1).

We conclude that the court’s decision to deny preliminary relief was not an abuse of discretion. Our analysis, however, differs in significant respects from that of the district court, which was persuaded that the plaintiffs had shown only a minimal chance of succeeding on their claims. We are less sanguine about the prospects of keeping the carp at bay. In our view, the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm – that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance. If the invasion comes to pass, there is little doubt that the harm to the plaintiff states would be irreparable. That does not mean, however, that they are automatically entitled to injunctive relief. The defendants, in collaboration with a great number of agencies and experts from the state and federal governments, have mounted a full-scale effort to stop the carp from reaching the Great Lakes, and this group has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play. Although this case does not involve the same kind of formal legal regime that caused the Supreme Court to find displacement of the courts’ commonlaw powers in American Electric Power, on the present state of the record we have something close to it. In light of the active regulatory efforts that are ongoing, we conclude that an interim injunction would only get in the way. We stress, however, that if the agencies slip into somnolence or if the record reveals new information at the permanent injunction stage, this conclusion can be revisited. * * *

We take very seriously the threat posed by the invasive species of carp that have come to dominate parts of the Mississippi River basin and now stand at the border of one of the most precious freshwater ecosystems in the world. Any threat to the irreplaceable natural resources on which we all depend demands the most diligent attention of government. As the case proceeds, the district judge should bear in mind that the risk of harm here depends upon both the probability of the harm and the magnitude of the problem that would result. In the end, however, the question whether the federal courts can offer meaningful equitable relief – either preliminary or permanent – to help abate a public nuisance in the face of agency action is factual in nature . It depends on the actual measures that the agencies have implemented already and those that they have committed to put in place going forward. Our ruling today is tied to our understanding of the current state of play. We recognize that the facts on the ground (or in the water) could change. The agencies currently working hard to solve the carp problem might find themselves unable to continue, for budgetary reasons, because of policy changes in Washington, D.C., or for some other reason. If that happens, it is possible that the balance of equities would shift. Similarly, new evidence might come to light which would require more drastic action, up to and including closing locks on Lake Michigan for a period of time. If either situation comes to pass, then the district court would have the authority to revisit the question whether an exercise of its equitable powers is warranted, taking into account the principles we have discussed in this opinion. As things stand now, however, preliminary relief is not appropriate. The district court’s judgment is AFFIRMED.

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

Stage collapse - "LaPorte Judge orders state to preserve fair stage wreckage"

Tom Coyne of the AP reports on yesterday's hearing in LaPorte County. Some quotes:

LAPORTE -- An Indiana judge ordered the state on Tuesday to preserve the wreckage from a stage collapse at the State Fair that killed seven people, after an attorney for the estate of one victim said he didn't think the state could be trusted.

LaPorte County Judge Thomas Alevizos said in his two-page ruling Tuesday afternoon that he was issuing a "rather limited" preliminary injunction. In it, he directed the state to follow the protocols put forth by the engineering firm the state has hired to investigate the collapse. * * *

Paul Mullin, an attorney representing the state and the State Fair Commission, said the order wasn't needed because engineering firm Thornton-Tomasetti had already outlined how it was going to handle the investigation. He also argued that if the inquiry was halted for 10 days some evidence could be destroyed by the weather.

Attorney Kenneth Allen has filed lawsuits on behalf of the estate of Tammy VanDam, 42, of Wanatah, who died in the collapse, and Beth Urschel, 49, who was VanDam's life partner. Allen argued that without the order, plaintiffs would have no recourse if the state was later found to have destroyed evidence.

"For the wrongdoer to be in charge of the evidence of the wrongdoing is a manifest injustice," Allen said.

The judge ordered the state to follow Thornton-Tomasetti's "failure investigation site protocol," which describes security at the site and who can have access to it. It also says that materials testing will be conducted by an independent laboratory.

Alevizos rejected a request that the state be ordered to preserve all emails, 911 calls and other evidence that could be destroyed, saying existing discovery rules should cover that.

The judge also criticized Allen for saying he was seeking $50 million in the lawsuit, saying local court rules stipulate that no damage amounts be listed.

"It seems to me it was all part of a publicity stunt, and I wonder if I'm being used for a publicity stunt," Alevizos said.

Posted by Marcia Oddi on Wednesday, August 24, 2011
Posted to Stage Collapse

Tuesday, August 23, 2011

Ind. Decisions - "Split Seventh Circuit panel decides Padilla v. Kentucky is not retroactive"

That heading from an entry today in the Sentencing Law Blog:

Interesting ruling today by a split Seventh Circuit panel today in Chaidez v. US, No. 10-3623 (7th Cir. Aug. 23, 2011). * * *

In the wake of this ruling on the heels of a contrary ruling by the Sixth Circuit, it would seem like the question going forward is not whether, but just when and how the Supreme Court will take up and resolve this issue.

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

Ind. Gov.t. - More on "Speaker Bosma Calls on Hinkle to Resign"

Updating this brief entry from earlier today, here is a comprehensive story from John Krull, reporting for TheFranklinOnline. It begins:

Almost as soon as Indiana House Speaker Brian Bosma called Tuesday for Rep. Phil Hinkle to resign his office, the Republican’s attorney said the embattled state representative wasn’t going to quit.

“I can tell you that he has no intention of resigning,” said Peter Nugent, the Indianapolis lawmaker’s attorney.

That led Bosma, also an Indianapolis Republican, to remove Hinkle as chairman of two committees and replaced him a member of another.

For background, start with this ILB entry from August 12th, headed "State Rep. Phil Hinkle, a Republican, caught in tryst with male escort."

Posted by Marcia Oddi on Tuesday, August 23, 2011
Posted to Indiana Government

Ind. Courts - "Judge Fundraiser Offers 'Favorable Ruling' For Donations"

The ILB is late reporting this. First there was the story last Friday - here is coverage from 6News' Derrik Thomas:

Some are raising questions about a fundraising flier for a Marion County judge that seems to offer favorable rulings in exchange for campaign contributions.

The invitation sent out in support of Judge Becky Pierson-Treacy promoted a fundraising gathering set for next month at the law office of Linda Pence.

Under the heading of suggested contributions, it lists $150 as sustained, $250 as affirmed, $500 as so ordered and $1,000 as a "favorable ruling." * * *

6News was told Friday evening that the fundraiser had been canceled. Pence, who was set to host the event, did not return calls for comment Friday.

Last evening (Monday), another story from 6News. Here Thomas quotes from Indiana Justice Ted Boehm, who is on the record* for appointing Marion County judges "by a select commission in a merit system, eliminating the need to campaign."
"Just think how you'd feel if you are going into a court and the judge has the power to decide who gets custody of your children, and the lawyer from the other side has made a $1,000 contribution to the judge and your lawyer hasn't," Boehm told 6News' Derrik Thomas.

To get on the ballot, judges pay a suggested slating fee of about $12,000. Raising that money was the worst part of the job, said former Judge Gary Miller.

"It's very uncomfortable for judges. We go from being this very independent judicial officer, to being a very partisan, political creature," he said.

But Marion County Republican Party Chairman Kyle Walker disagrees with Boehm's push to revamp the process of naming judge, saying the system is fine just the way it is.

"What we have in Marion County is the best merit system. It's an endorsement process that has worked," he said. "Anytime you can put the opinions of hundreds of people over those 10 people (who slate candidates) that are handpicked by the governor and other folks, you're probably going to be better off."

Any changes would require legislative approval.

________
*See this Dec. 1, 2010 ILB entry, where Boelm calls the current system in Marion County: "a scheme that purports to place the selection in the hands of the voters, but in practical effect leaves it under the control of a few party officials"

Posted by Marcia Oddi on Tuesday, August 23, 2011
Posted to Indiana Courts

Stage Collapse - Local firm files class action "and will not take a fee from any recovery against the State"

And they, the firm of Cohen & Malad, have issued this press release. The named plaintiff is Angela Fischer, who was not physically injured, but:

Angela’s boyfriend ran back to help others in need. In the moments that followed, Angela witnessed the graphic and horrific aftermath of the fallen structure and personally witnessed a fellow concert-goer die before her eyes and her boyfriend carrying a young woman, with severe head trauma too graphic to detail, out of the wreckage so she could get immediate medical care. As a result of being witness to this incident and its aftermath, Angela Fischer has suffered and continues to suffer from severe emotional trauma. She has sought out the assistance of trained professionals, but is concerned that there are countless others who don’t know what to do or where to turn for help.

By initiating this process, Angela hopes that other plaintiff’s attorneys will follow the example set by Cohen & Malad and will also agree to waive their fees for claims against the State, so that, as much as possible, the limited funds that may be recoverable from the State can go towards helping the families who have lost loved ones, the individuals who are still fighting to recover, and the countless others who may need treatment or therapy to help them through the emotional trauma of witnessing events that hopefully will never happen again. At the suggestion of Angela Fischer, Cohen & Malad has also agreed to create a dedicated page on its website to help the victims of the State Fair stage collapse identify resources that are available in the community to help the victims of this tragedy.

More from the release:
Cohen & Malad, LLP filed a class action lawsuit on Monday, August 22, 2011 on behalf of all victims of the Indiana State Fair stage collapse tragedy. The class action lawsuit alleges that the State of Indiana and the companies involved with installing and maintaining the structure were negligent in their handling of the event and in failing to ensure that the structure itself was safe. The class action lawsuit also alleges that there were defects in the design and manufacture of the Supertruss load bearing roof structure. Attorney Jeff Hammond stated that “what we already know is that the structure failed in the environment it was designed to be used in.” The class action lawsuit was filed in Marion County Superior Court and has been assigned to Judge Theodore M. Sosin.
From a story this afternoon by Scott Olson of the ILJ, who apparently has access to the lawsuit:
The 18-page tort notice, filed Monday by Cohen & Malad LLP, claims the state of Indiana and several other parties, including two businesses, were negligent in their handling of the Aug. 13 event and in failing to ensure the safety of the stage. * * *

Besides the state, Cohen & Malad’s class action names Greenfield-based Mid-America Sound Corp., the company that installed the stage rigging, and Los Angeles-based Live Nation Worldwide Inc., the promoter of the Sugarland concert.

Posted by Marcia Oddi on Tuesday, August 23, 2011
Posted to Stage Collapse

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

For publication opinions today (1):

Brian Roberts v. State of Indiana - "Because Roberts's guilty plea was knowing, intelligent, and voluntary, and he was not subjected to ineffective assistance of counsel, we affirm the post-conviction court's denial of his petition for post-conviction relief."

NFP civil opinions today (0):

NFP criminal opinions today (1):

Dhavares Bureau v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 23, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Internet guilty of killing 1st Amendment"

Great story by Monica Bay of the Daily Business Review, on statements (many of which will be familiar to ILB readers) by Alex Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals, specifically: "The First Amendment is dead, a victim of the internet." Some quotes:

The moral of Kozinski's speech may well be, "pick your battles." In supporting his theory that the internet has made the First Amendment unnecessary, Kozinski relayed several examples of litigants who might have been better served by keeping quiet about their unhappiness over web postings.

"Technology has now made suppression of speech impossible," announced Kozinski, who was, at age 35, the youngest judge ever appointed to the federal court of appeals (by President Ronald Reagan). Once information is published on the internet, you can't erase it, he explained. A blog post can literally go viral with millions of views, in minutes.

Kozinski's first example was how key code that protected copyrights on Blue-ray and other media players was leaked by an angry consumer who had a defective disk -- and then reverse engineered that disk to find Intel's HDCP code. Legal efforts to thwart distribution quickly became "the digital version of whack-a-mole" as the web community "used everything in their power to spread the code," he explained. The key eventually had its own website, T-shirts, and bar codes.

The next example of it's-best-to-leave-well-enough-alone is now known worldwide as the "Barbra Streisand effect," the judge explained. It seems the California Coastal Records Project was documenting the California shoreline, with 12,000 frames that included one of Streisand's Malibu property. She sued, claiming infringement of privacy (among other causes of action). The agency sued right back, and the controversy escalated. "The photo was copied and distributed all over the web. Nobody would have seen it if she hadn't sued," observed Kozinski. * * *

Then the judge took aim at blogs, recalling the Pentagon Papers history of The New York Times. In the print era, publishers waited until the courts ruled in their favor before they printed stories, Kozinski noted. Today, "people can put [content] online in an instant, and have millions of viewers." He compared that era to WikiLeaks' recent activity, where "there's nothing the government can do about it." * * *

[T]he future won't be easy, said Kozinski. "I have good faith in the ingenuity of people to solve problems -- but I am not sure how it will be done. Don't count on the courts. We are good for many things and we try to keep up with technology and understand it, but things move so quickly. Technology can change in a year or two. In a sense, we are helpless to provide any help."

Posted by Marcia Oddi on Tuesday, August 23, 2011
Posted to Courts in general

Courts - "A Lawyer in Minnesota Challenges the Accuracy of D.W.I. Breath Tests"

Timothy Williams reported in the August 19th NY Times about a challenge to "the accuracy of drunken driven tests administered with a breath testing device used by Minnesota law enforcement agencies," via a Q&A interview with "Ryan Pacyga, a lawyer who represents nearly 200 of the people accused of drunken driving."

Posted by Marcia Oddi on Tuesday, August 23, 2011
Posted to Courts in general

Ind. Gov.t. - "Speaker Bosma Calls on Hinkle to Resign"

Jim Shella of WISH TV has a copy of Bosma's statement.

Posted by Marcia Oddi on Tuesday, August 23, 2011
Posted to Indiana Government

Ind. Courts - "Lawmakers to debate illegal entry controversy"

That is the heading to this story dated Aug. 22nd at FranklinOnline.com, reported by Lesley Weidenbener. The controversy relates to the Supreme Court's 3-2 decision May 12th in Barnes v. State. (Here is a long list of earlier ILB entries on the opinion.) A petition for a rehearing was filed in the case; the Court has not yet acted -- this ILB entry leads to the documents. From the story:

The Legislative Council Subcommittee on Barnes v. State will meet at 1 p.m. Wednesday in Room 431 at the Statehouse. The meeting will be broadcast live on the web at http://www.in.gov/legislative/2441.htm.

Sen. Tim Lanane, D-Anderson, is a member of the subcommittee and said Monday he’s hopeful that some of the initial fervor about the decision has died down. He wants the group to be cautious about changing the law.

“We really need to weigh the consequences of what do we do here,” Lanane said. “Do we pass a statute that says it’s OK to fight if the police if you think in good faith they’re entering illegally? Then we say we’ll figure out the truth later when the gun play has died down.”

Lanane said he doubts many lawmakers thought the castle doctrine would allow Hoosiers to shoot at police trying to enter their homes.

“I think it’s clearly about illegal entry by a third party,” Lanane said. “It’s one thing to wake up in the middle of the night to see someone crawling through the window into your home. But if we say it applies to police who are trying to act in good faith, we’re raising some real issues.”

The defendant in the court case has asked the court to reconsider its decision and dozens of lawmakers have signed onto a petition asking the court to do so as well.

But [Sen. Brent Steele, R-Bedford, who will chair Wednesday’s hearing] said that, because the court hasn’t acted, the General Assembly might need to.
Steele urged those who want to testify at Wednesday’s hearing to arrive early.

Note that according to the meeting agenda, the meeting will center on "discussion of draft language."

Posted by Marcia Oddi on Tuesday, August 23, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Updated story on: "Prank gone awry could land teen in prison"

The Indianapolis Star has an updated version this morning of Jon Murray's story, first posted last evening. Some quotes:

The Rush County prosecutor agreed to withhold prosecution of the 18-year-old's case in exchange for eight hours of community service. Under a diversion agreement filed in court Thursday, Morton agreed to perform the work for Rush County Schools and stay out of trouble for a year.

The upshot: Morton, who had no criminal history, keeps his clean record.

And Prosecutor Philip J. Caviness avoids an outright dismissal on the criminal case -- one that legal experts and Morton sympathizers had portrayed as an overreach by authorities.

"It's a creative way to resolve a charge that never should have been filed," said Joel Schumm, a professor at the Indiana University School of Law-Indianapolis. "The ultimate outcome is a fair one, but he can't get back the days he spent in jail." * * *

Tyell Morton put off plans to enroll in Ivy Tech Community College and lost out on scholarships while his case was pending, his aunt said. He may delay college further to work and pay off his lawyer's bill.

The high school gave Morton his diploma, but his arrest kept him from attending graduation.

Posted by Marcia Oddi on Tuesday, August 23, 2011
Posted to Indiana Courts

Stage Collapse - Legal ramifications of state fair stage collapse

The ILB has created a new category to make it easier to locate its entries on the legal aspects of the state fair stage collapse. This marks the fifth such entry; the entire list may be accessed by clicking "Stage Collapse" in the right hand column, or at the end of this or any related entry.

Here are some new notable stories:

Posted by Marcia Oddi on Tuesday, August 23, 2011
Posted to Stage Collapse

Monday, August 22, 2011

Ind. Law - The state fair stage collapse and the rights of gay couples

A number of news stories indicate that at least one gay couple was severely impacted by the state fair stage collapse. It is unclear from what I've seen whether the couple had indeed married, or entered into a civil union, in another state. Hawaii has been mentioned.

Regardless, Indiana currently does not recognize same sex marriages performed either here or elsewhere -- our defense of marriage statute (DOMA), IC 31-11-1-1, provides:

Sec. 1. (a) Only a female may marry a male. Only a male may marry a female.

(b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.

As added by P.L.1-1997, SEC.3. Amended by P.L.198-1997, SEC.1.

The federal DOMA was enacted in 1996:
Section 2. Powers reserved to the states

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of marriage

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

Efforts continue to repeal the federal DOMA act, see for instance this July 19, 2011 story in the Christian Science Monitor.

There are no similar efforts underway to repeal the Indiana DOMA.

Instead, a constitutional amendment, HJR 6, intended to reinforce the Indiana statute's prohibitions, passed the 2011 session of the General Assembly. If it passes again in 2013 (it must pass two separately elected General Assemblies), the proposed constitutional amendment will be presented to the voters for ratification at the next general election. It reads:

SECTION 2. ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF INDIANA IS AMENDED BY ADDING A NEW SECTION TO READ AS FOLLOWS:

Section 38. Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana.

A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

The stated rationale of those supporting the constitutional amendment was to prevent a state court from finding a way to invalidate the Indiana DOMA statute on state constitutional grounds.

The second sentence of the proposed amendment was contested by a number of people during the past session, on the grounds that it would prevent recognition of domestic partnerships and perhaps a number of other legal arrangements intended to benefit same sex families. If the amendment were to be ratified, it was argued that any future statutes intended to provide such benefits would be constitutionally invalid. In other words, future General Assemblies would find their hands tied ...

Wrongful Death Actions. Indiana's wrongful death law is found at IC 34-23-1.

Section 1 provides that:

When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission.
Damages shall include reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person resulting from said wrongful act or omission. the remainder, if any, after expenses, shall:
inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased.

If such decedent depart this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him, the damages inure to the exclusive benefit of the person or persons furnishing necessary and reasonable hospitalization or hospital services in connection with the last illness or injury of the decedent, performing necessary and reasonable medical or surgical services in connection with the last illness or injury of the decedent, to a funeral director or funeral home for the necessary and reasonable funeral and burial expenses, and to the personal representative, as such, for the necessary and reasonable costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney's fee, and in case of a death under such circumstances, and when such decedent leaves no such widow, widower, or dependent children, or dependent next of kin, surviving him or her, the measure of damages to be recovered shall be the total of the necessary and reasonable value of such hospitalization or hospital service, medical and surgical services, such funeral expenses, and such costs and expenses of administration, including attorney fees.

Section 2 covers an adult unmarried person without dependents:
(d) Damages awarded ... for medical, hospital, funeral, and burial expenses inure to the exclusive benefit of the adult person's estate for the payment of the expenses. The remainder of the damages inure to the exclusive benefit of a nondependent parent or nondependent child of the adult person.
(f) A parent or child who wishes to recover damages under this section has the burden of proving that the parent or child had a genuine, substantial, and ongoing relationship with the adult person before the parent or child may recover damages.
(g) In an action brought under this section, a court or a jury may not hear evidence concerning the lost earnings of the adult person that occur as a result of the wrongful act or omission.
Other States. Five states and the DC recognize same-sex marriage. Nolo Law has a discussion of "Marriage-Like Relationships in Other States":
California, New Jersey, Nevada, Oregon, and Washington state offer either civil unions or domestic partnerships that are the legal equivalent of marriage in the states that offer them and provide the same rights and responsibilities as marriage, including:
  • rights under family laws, such as annulment, divorce, child custody, child support, alimony, domestic violence, adoption, and property division
  • rights to sue for wrongful death, loss of consortium, and under any other tort or law concerning spousal relationships
  • medical rights, such as hospital visitation, notification, and durable power of attorney
  • family leave benefits
  • joint state tax filing, and
  • property inheritance when one partner dies without a will.
The Hawaii legislature has also passed a civil union law that will take effect January 1, 2012. In addition, the Illinois legislature passed a civil union bill that create a marriage-like relationship, which will take effect June 1, 2011.

These rights apply only to couples living in those states who enter into a civil union. But the laws do not give same-sex couples any rights and benefits under federal law. Same-sex couples are not eligible for Social Security benefits, immigration privileges, or the marriage exemption to federal estate, transfer, or gift taxes. * * *

Reciprocal beneficiaries laws in Colorado and Hawaii provide some marriage-like benefits. In Hawaii, any two state residents can register as reciprocal beneficiaries, as long as they are over 18 and are not permitted to marry. Couples who sign up gain some of the rights and benefits granted by the state to married couples, including hospital visitation rights, the ability to sue for wrongful death, and property and inheritance rights. In Colorado, reciprocal beneficiaries may own property jointly, inherit from a partner in the absence of a will, receive priority for appointment as a conservator, and receive a number of other rights similar to those of married couples, though the list is far from complete.

Here is more (from Wikipedia) on reciprocal beneficiary registration in Hawaii:
Since 1997, the U.S. state of Hawaii has offered reciprocal beneficiary registration for any adults who are prohibited by state law from marrying, including both same-sex and opposite-sex couples.

Reciprocal beneficiaries have access to a limited number of rights and benefits on the state level, including inheritance rights, workers compensation, the right to sue for wrongful death, health insurance and pension benefits for state employees, hospital visitation, and healthcare decisionmaking. Hawaii's RBR status also offers partners the option to jointly own property as "Tenants by the Entirety."

There are no state residency or U.S. citizenship requirements. The two individuals entering into a reciprocal beneficiary relationship must both be at least 18 years of age, and cannot be married or in another reciprocal beneficiary relationship.

Individuals prohibited by state law from marrying one another include, but are not limited to, relationships such as brother and sister of the half as well as to the whole blood, uncle and niece, aunt and nephew, widowed mother and her unmarried son, and two persons of the same sex or gender.

Hawaii does not recognize same-sex marriage. Although it has recognized reciprocal beneficiary agreements for more than 10 years, another Wikipedia entry traces recognition of same-sex unions in Hawaii:
The U.S. state of Hawaii currently recognizes same-sex couples in reciprocal beneficiary relationships, which provide limited rights and benefits. Civil unions that provide benefits similar to marriage were legalized in 2011, and will become available in 2012. Same-sex marriage is banned by state law.

Following a 1993 decision by the Hawaii State Supreme Court that found the state's refusal to grant same-sex couples marriage licenses discriminatory, voters in 1998 approved a constitutional amendment granting the Hawaii State Legislature the power to reserve marriage to opposite-sex couples, which it later did by passing a law that banned same-sex marriage.

Posted by Marcia Oddi on Monday, August 22, 2011
Posted to Indiana Law | Stage Collapse

Ind. Courts - Still 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 ILB entry from July 5th, and its update from the same day, Jon Murray of the Indianapolis Star has a report this evening:

The Rush County prosecutor has agreed to dismiss a felony criminal case against an 18-year-old who placed a blow-up sex doll in a girls' bathroom stall as a prank on the last day of school.

A diversion agreement, submitted to Rush Circuit Court on Thursday, means Prosecutor Philip J. Caviness won't pursue the case as long as Tyell Morton stays out of trouble for a year. He also will perform eight hours of community service for Rush County Schools.

Morton's case has attracted national attention this summer, with many accusing the prosecutor and school and police authorities of making a prank into a capital case. Others have highlighted the fact that Morton is a black youth in a town that is 96 percent white.

The graduating senior at Rushville Consolidated High School pulled off his prank May 31.

Initially, school and police officials who relied on ominous-looking security footage overestimated the threat and placed the school on lockdown for nearly three hours, calling in the bomb squad before discovering the doll.

The incident led the prosecutor to charge Morton with disorderly conduct, a misdemeanor, and institutional criminal mischief -- a Class C felony that carries the potential of two to eight years in prison.

Legal experts have questioned whether those charges were appropriate or even being applied properly. * * *

Caviness did not immediately respond to a message seeking comment. Under the diversion agreement, the prosecutor has agreed to support an expungement of Morton's arrest record as long as he fulfills the diversion agreement. Morton also must pay $329 in diversion user fees and court costs.

Posted by Marcia Oddi on Monday, August 22, 2011
Posted to Indiana Courts

Courts - "Memory should be treated “as a form of trace evidence: a fragment collected at the scene of a crime, like a fingerprint or blood smear, whose integrity and reliability need to be monitored and assessed ..."

Adam Liptak's long Sidebar column this week in the NY Times is headed "34 Years Later, Supreme Court Will Revisit Eyewitness IDs." Some quotes:

WASHINGTON — Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest.

Mistaken identifications lead to wrongful convictions. Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia. * * *

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed. * * *

“It is exciting that the court has actually taken an eyewitness ID case for the first time in many years,” Professor Garrett said, “even if it might be the wrong case on the wrong issue.” The justices are likely to rule only about which kinds of eyewitness identifications warrant a closer look from judges — just those made after the police used improperly suggestive procedures or all problematic ones?

The larger and more important question of what that closer look should involve is probably not in play in the case, Perry v. New Hampshire, No, 10-8974. * * *

Barry C. Scheck, a director of the Innocence Project at the Benjamin N. Cardozo School of Law, said that what is needed in this area is a new “legal architecture,” one in which judges play an authentic gatekeeping role.

He pointed to a pioneering report last year from a special master appointed by the New Jersey Supreme Court. The special master, Geoffrey Gaulkin, suggested that memory should be treated “as a form of trace evidence: a fragment collected at the scene of a crime, like a fingerprint or blood smear, whose integrity and reliability need to be monitored and assessed from the point of its recovery to its ultimate presentation at trial.”

Posted by Marcia Oddi on Monday, August 22, 2011
Posted to Courts in general

Law - "Law Firms' Profits Called Inflated: Tallies by a Citigroup Unit Come in Lower Than American Lawyer's Measure"

That is the headline to a story today ($$$) in the WSJ. The reporter, Vanessa O'Connell, also has this entry today in the not $$$ WSJ Law Blog, headed "Are Law Firms Overstating Their Profits?."

Also in the WSJ today, an opinion piece by Clifford Winston and Robert W. Crandall, headed "Time to Deregulate the Practice of Law: Every other industry that has been deregulated, from trucking to telephones, has lowered prices without sacrificing quality." Jonathan H. Adler writes about it here in the Volokh Conspiracy blog. A sample:

The reality is that many more people could offer various forms of legal services today at far lower prices if the American Bar Association (ABA) did not artificially restrict the number of lawyers through its accreditation of law schools—most states require individuals to graduate from such a school to take their bar exam—and by inducing states to bar legal services by non-lawyer-owned entities. It would be better to deregulate the provision of legal services. This would lower prices for clients and lead to more jobs.

Posted by Marcia Oddi on Monday, August 22, 2011
Posted to General Law Related

Ind. Decisions - More on: Tax Court rules in puppy mill case; holds use of jeopardy assessments not warranted

Updating the ILB's long entry from Saturday, Dan Carden of the NWI Times has now posted a story headed "Court rejects tax tool used to close puppy mill." Some quotes:

INDIANAPOLIS | A tool used by Indiana officials to shut down an illegal puppy mill has been disapproved by the Indiana Tax Court.

Tax Court Judge Martha Wentworth ruled Friday the Department of Revenue and Attorney General exceeded their authority by using jeopardy tax assessments to seize 240 dogs from the Harrison County property of Virginia and Kristin Garwood.

A jeopardy tax assessment allows the state to recoup unpaid taxes by seizing property immediately without notice or a court hearing.

On June 2, 2009, state revenue and attorney general's officials visited the Garwoods and demanded immediate payment of approximately $142,000 from each woman for unpaid sales taxes, interest and penalties from their puppy sales.

When the women couldn't pay immediately, Indiana State Police and Humane Society members seized the dogs on behalf of the state. The state sold the dogs the next day to the Humane Society for $300.

Wentworth said the state's actions did not conform with Indiana law authorizing jeopardy tax assessments, as the Garwoods were not likely to quickly leave the state, remove property from the state, conceal their property from state officials or impair the collection of taxes.

"The department wielded the power of jeopardy assessments as a sword to eliminate a socially undesirable activity and close down a suspected 'puppy mill,' not to fill the state's coffers with the tax liabilities the Garwoods purportedly owed," Wentworth said, noting the 240 dogs were worth far more than $300.

Bryan Corbin, spokesman for Attorney General Greg Zoeller, said the state plans to appeal the ruling to the Indiana Supreme Court.

Posted by Marcia Oddi on Monday, August 22, 2011
Posted to Ind. Tax Ct. Decisions

Ind. Courts - Legal setting for state fair stage collapse claims

Two stories from the IBJ outline the limits on claims:

"Damage cap limits state's potential losses from concert tragedy" by Scott Olson, dated August 18th.

"Lawsuits filed for Indiana stage collapse victims," an AP story dated August 19th.

Posted by Marcia Oddi on Monday, August 22, 2011
Posted to Indiana Courts | Stage Collapse

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

For publication opinions today (3):

In Smith Barney, et al. v. Stonemor Operating LLC, et al. , a 10-page opinion, Judge Crone writes:

The trial court placed a mortuary business in receivership after its former owners alleged that the current owner had stolen millions of dollars from cemetery trusts that had been established pursuant to Indiana law to ensure the perpetual upkeep of prepaid burial plots and the delivery of prepaid funeral merchandise and services. The trial court ordered the receiver to take control of the business's operations and to marshal and account for the trust fund assets. The receiver filed suit against appellant Smith Barney, which held some of the cemetery trust accounts, alleging that it had participated in the plundering of the trust funds. * * *

The trial court denied Smith Barney's motion to compel arbitration, finding that Smith Barney had impliedly waived any right it might have had to compel arbitration of Appellees' claims. Smith Barney now appeals, claiming that the trial court erred in so finding. We conclude as a matter of law that Independence Trust was not a “successor in interest” to either of the prior trustees and therefore is not bound by the arbitration clause in the account agreements. Consequently, there is no basis for compelling StoneMor to arbitrate its claims. That being the case, we affirm the trial court's judgment.

In Dennis Perry v. State of Indiana , a 34-page opinion, Judge Vaidik writes:
Dennis Perry appeals his convictions for strangulation, criminal mischief, and possession of cocaine. Perry was accused of assaulting his ex-girlfriend, N.D. After the alleged assault, N.D. sought assistance from police and was brought to the hospital for examination. She told her examining nurse that she had been sexually assaulted and strangled. She further identified Perry as the assailant. N.D.'s statements were admitted at trial via a medical record prepared by the examining nurse. N.D. did not testify. Perry argues that N.D.'s statements constituted inadmissible hearsay and that their admission violated his Sixth Amendment right to confrontation. We conclude that N.D.'s material statements—those detailing her physical attack and identifying her attacker—were admissible pursuant to the medical diagnosis exception to the hearsay rule. We further conclude that N.D.'s statements were nontestimonial under Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), and thus did not implicate Perry's confrontation rights. However, at trial, the State also elicited that Perry had been arrested and charged in connection with five prior domestic disturbances involving N.D. We conclude that the trial court erred by admitting this prior misconduct evidence, as it consisted only of arrests and charges. We further conclude that the error was not harmless and warrants reversal, though we find sufficient evidence to sustain Perry's convictions such that retrial would not violate double jeopardy. Accordingly, we reverse and remand.
In Robbie J. Bex v. State of Indiana , a 22-page, 2-1 opinion, Judge Kirsch writes:
Robbie J. Bex (“Bex”) appeals from her conviction and sentence for operating while intoxicated endangering a person, as a Class A misdemeanor. Bex presents three issues for our review, which we restate as:

I. Whether Bex was denied her constitutional right to a trial by jury when five jurors decided her case;
II. Whether the trial court abused its discretion when it imposed a public defender user fee as a condition of her probation without making a determination of her ability to pay; and
III. Whether the public restitution work component of Bex's sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm. * * *

MATHIAS, J., concurs,
SULLIVAN, Sr.J., concurs in part and dissents in part with separate opinion. [that begins, at p. 18 of 22] I concur in the first portion of the majority's opinion as to Part I, Right to Jury Trial. I respectfully dissent, however, with regard to the majority's holding that the waiver by counsel, rather than by the defendant herself, was effective and binding upon the defendant.

Further, I respectfully disagree with the decision reached by a panel of this Court in Judy v. State, 470 N.E.2d 380 (Ind. Ct. App. 1984). More particularly, I am unable to agree with the implication of that opinion, as adopted by the majority in the case before us, to the effect that consent not by the defendant but rather by counsel to a trial by a jury of fewer than six persons does “not involve a fundamental right [of the defendant]” and that it is “merely a matter of trial procedure.”

NFP civil opinions today (1):

Garry Coleman v. Department of Local Government Finance (NFP)

NFP criminal opinions today (2):

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

Marc Van Rowland v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 22, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 19, 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 August 19, 2011. It is three pages (and 42 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, August 22, 2011
Posted to Indiana Transfer Lists

Ind. Decisions - "Can Schools Punish Students for Posting Racy Photos Online?"

Updating this ILB entry from Sunday, Adam Cohen of Time has a long story today on the recent ND Ind. decision in T.V. et al. v. Smith-Green Community Schools (without ever naming the case). His story concludes:

The Indiana ruling follows a June decision from the Philadelphia-based U.S. Court of Appeals in J.S. v. Blue Mountain School District, which held that a student could not be disciplined for posting a crude parody of her middle-school principal on MySpace. In that case, the court said that even if the parody was offensive — it presented the principal as a bisexual named M-Hoe with a sexual addiction and a child who looked like a gorilla — there was no reason to believe it would cause substantial disruption.

Taken together, the back-to-back Indiana and Pennsylvania rulings suggest two things. First, with the rise of the Internet, students are posting a lot of "crass foolishness," as the Indiana court tartly put it. And second, that courts are correctly determining that, except in the most extraordinary cases, students have a constitutional right to do so.

Posted by Marcia Oddi on Monday, August 22, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Feature on Clark County probation officer

Dale Moss of the Louisville Courier Journal has a feature story on Denise Poukish, a probation officer for Clark Circuit Court. Some quotes:

Poukish returned to the job last year after working as a contractor to Indiana prisons. She held the probation job for 17 years before that.

While working for the prisons, she developed a specialty of overseeing sex offenders. “She is one of the most skilled probation officers in Indiana,” Circuit Judge Dan Moore said. “She has boundless energy, she is very dedicated — a person who is firm but reasonable.”

Poukish, 53, of Charlestown, set her sights on this career path early. On top of helping people, she was intrigued that it seemed a male-dominated profession. She was up to breaking the mold and graduated from Eastern Kentucky University in correction service.

She went on to earn an advanced degree and to receive certifications in mental-health and addictions counseling. “I have to admit, I like the excitement,” Poukish said. “It’s not a boring job by any stretch.”

She cares deeply without taking it personally if probation fails. She trusts that people can change if they have help. “I keep hoping I make a difference,” Poukish said. * * *

Moore recruited Poukish to return, and she’s glad he did. She drove 4,000 miles a month with state duties and was more or less removed from the front line on which she thrives. “Honestly, I’m as excited about this work as the day I started,” Poukish said. “After 27 years, I still love the work. I love probation. I think it works.”

Posted by Marcia Oddi on Monday, August 22, 2011
Posted to Indiana Courts

Law - More on "Why hospital bills remain a big mystery: A dense thicket of medical, insurance variables makes it difficult to get a cost estimate for a surgery or procedure"

Recall this ILB entry from August 14th, quoting a long story by Thomas B. Langhorne in the Evansville Courier & Press which stated "State law does not require hospitals and insurers to disclose the varying prices they negotiate with each other."

The ILB entry also referenced a pending case before the Indiana Court of Appeals on hospital charges for uninsured patients.

Yesterday the C&P published a response to its story from Robert W. Hillman, president of Anthem Blue Cross and Blue Shield in Indiana. Some quotes:

The recent story in the Courier & Press ("Why hospitals bills remain a big mystery," Aug. 13, 2011) illustrated very well that useful information pertaining to the cost and quality of medical care is, unfortunately, very hard to come by.

As a result, we health care consumers have almost become bystanders in the health care system.

But considering the ever rising costs, we can no longer afford to be bystanders.

As the article pointed out, the U.S. health care market isn't really a market at all because as consumers we don't have the information to make decisions based on price and quality the way we do with virtually every other purchase we make.

Several years ago at Anthem we asked ourselves a question: As health care costs continue to rise, leading to higher premiums and out-of-pocket costs for our customers, what can we do to help them get the most out of their health care dollar?

With more than 60 cents of the health care premium dollar going to physician and hospital services, that seemed like a good place to start.

So in 2007 we introduced an online cost comparison tool called Anthem Care Comparison that lists price ranges for the most common medical procedures at facilities across Indiana.

From a knee replacement to maternity services or a tonsillectomy, our goal was to provide easy to access information to help our customers become better informed purchasers of health care.

No doubt they've been shocked by the significant difference in price from one place of service to the next for the exact same procedure.

Last year, we introduced Imaging Shopper, which provides Anthem members with information to help them compare the cost and quality of MRIs, CT scans and other imaging services recommended by their doctor.

In Central Indiana, the average difference between "high" and "low" cost imaging providers is about $1,000.

When the policyholder is responsible for, say, 20 percent of the cost, that's a considerable savings opportunity depending on which imaging provider the patient goes to.

Ultimately, the choice rests with the member. Our role is simply to provide information about more cost effective options.

The ILB has just looked at an Anthem Imaging Shopper page and found this:
In December, Anthem launched a pilot program called Imaging Shopper in the Indianapolis metropolitan area. When imaging services are ordered, a Health Outreach Specialist from Anthem contacts the member and confirms what facility they will be using, suggesting less expensive options if the member is agreeable. During the month of December, there were 184 members that were redirected, saving an average of $1,134 per case. Total savings was $208,643.
Anthem Care Comparison is available, it appears, only to individuals insured by Anthem, but would be useful for those who are insured by Anthem and have a deductible. It shows the prices Anthem has negotiated with the various facilities for specified services.

None of this, however, is useful to to someone who is uninsured and is responsible to pay whatever the hospitals charges.

Posted by Marcia Oddi on Monday, August 22, 2011
Posted to General Law Related

Law - "In California, much is officially secret"

Interesting lengthy investigative story last week from the Orange County Register. Here is a sample:

Secrecy has seeped into every corner of state government, making it difficult to gauge Sacramento's effectiveness and discretion. An Orange County Register review of the Government Code found at least 500 provisions that exempt specific records or information from public disclosure while another 16 code sections prohibit the release of broad categories of documents, including every complaint filed with a licensing body or investigatory agency, all communications with members of the Legislature and any document whose release does not serve the public interest. Official secrets are held in every office and department in state government, from food and agriculture, public health and the DMV to corrections, social services and the Legislature, where the Assembly recently made headlines (and drew a lawsuit) over its refusal to release documents related to members' current budgets.

California's deference to secrecy is often couched as a public service, and indeed much of the information held in confidence actually protects residents. Nobody wants the government giving out Social Security numbers or publicly releasing the results of AIDS tests. But the Government Code is also littered with exemptions that freedom of information advocate Terry Francke criticizes as "hard to justify." Why are the names of asparagus producers, red light camera photos and the urine tests of race horses confidential?

As I read through the long article, many comparable instances in Indiana law came to mind ...

Posted by Marcia Oddi on Monday, August 22, 2011
Posted to General Law Related

Ind. Gov't. - "A new law that we did not seek and do not need "

Updating this ILB entry from August 18th, the Fort Wayne News-Sentinel this morning has this editorial. Some quotes:

Members of the Indiana General Assembly last session passed a law they didn't talk about openly. They didn't bother to inform the affected parties that the new law was coming or what it would do. Nobody asked for the law to be passed. It solves no problem, creates nothing good. It will eventually affect virtually every Hoosier voter. Who could possibly object?

Almost everybody, of course.

The law will strip from election ballots the names of candidates who face no opponents. If there's only one candidate for mayor, say, or county prosecutor, that office will simply not be on the ballot. It went into effect in July, so look for all those empty spaces in the coming city election. Or rather, don't bother to look.

The sponsor of the legislation, State Rep. Kathy Richardson, R-Noblesville, said the purpose was “to cut costs and create more efficient ballots.” Really? The only costs that might be saved – and not that much in savings – would seem to be in places that still use paper ballots, and then only if there are enough uncontested races to reduce the ballots by at least a page. * * *

Even if we don't think this will cause widespread confusion – that sounds a little alarmist – this just seems like a dumb move. A ballot should not be just a means of casting our votes but something that shows the totality of a particular election – something for the history books. And how many votes an unchallenged candidate gets can tell us something about the person's popularity – or lack of it.

It's important for legislators to be able to recognize problems and respond with the appropriate legislation. But it's equally important for them to know when something is working and to simply leave things alone. This may not be the dumbest piece of legislation to come out of the General Assembly last session, but it will do until the real thing comes along.

Posted by Marcia Oddi on Monday, August 22, 2011
Posted to Indiana Government

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

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

From Sunday, August 21, 2011:

From Saturday, August 20th, 2011:

Posted by Marcia Oddi on Monday, August 22, 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 8/22/11):

Next week's oral arguments before the Supreme Court (week of 8/29/11):

Next Thursday, September 1st

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 8/22/11):

Wednesday, August 24th

Thursday, August 25th

Next week's oral arguments before the Court of Appeals (week of 8/29/11):

Next Tuesday, August 30th

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, August 22, 2011
Posted to Upcoming Oral Arguments

Sunday, August 21, 2011

Ind. Law - "Adoption process changing with the Internet "

That is the heading to this long story today in the Gary Post-Tribune, reported by Chelsea Schneider Kirk. The story makes some very interesting points, such as:

Birth moms are more apt to find adoptive parents themselves instead of going through agencies, as resources have boomed online, according to Tina Sanchez-Wright, founder and director of Adoptions and Family Support Network. Sanchez-Wright founded the Highland-based not-for-profit in 2007.

“What I’m seeing compared to adoption 10 years ago is I don’t know if there’s been a decrease in birth moms so much as they are finding their own families. They aren’t going through agencies anymore,” Sanchez-Wright said.

But this section of the story (emphasis added by ILB) was the most surprising to me:
Catholic Charities of the Diocese of Gary, one of the largest child placing agencies in Northwest Indiana, is seeing a notable increase in couples wanting to adopt, but a corresponding decrease in the number of birth moms. Usually, the not-for-profit has placed 10 babies by now, and averages between 10 to 15 placements a year, Kavanaugh said. This year, they’ve had one as of mid-July.

“There’s no reason why the numbers should be down,” Kavanaugh said. “No idea; we are trying to figure that out ourselves.”

Catholic Charities had hoped the Indiana General Assembly’s attempt to defund Planned Parenthood would mean more placements.

However, shortly after the state Legislature adjourned, Planned Parenthood of Indiana successfully sought a preliminary injunction barring much of the law from being enforced. The state is appealing.

“We have not seen an increase with that yet,” Kavanaugh said. “Hopefully in the near future we will.”

Posted by Marcia Oddi on Sunday, August 21, 2011
Posted to Indiana Law

Ind. Decisions - More on the school vouchers challenge

Updating this ILB entry yesterday on the school vouchers issue, several stories have been published today.

"School vouchers around for now: As students settle into private schools, families wonder whether bottom could drop out with judge's ruling," is the heading to this long story by Mikel Livingston in the Lafayette Journal Courier. Some quotes:

A judge's ruling eventually will determine whether the voucher program remains in place.

The lawsuit was dealt a blow Monday when Marion Superior Court Judge Michael Keele ruled against granting a preliminary injunction to halt the program. But participants in the suit -- including four with ties to Lafayette School Corp. -- have indicated the fight will continue.

Their fears, fueling the lawsuit, are that the program diverts public tax dollars to fund religious institutions, a violation of the Indiana Constitution. They also contend the voucher system, approved this spring by the Indiana General Assembly as part of a sweeping education reform package, will drain funds from already cash-strapped public schools.

"I don't think that Indiana state tax dollars were intended for that use," said Glen Acres Elementary Principal Deb Patterson, one of a dozen plaintiffs in the lawsuit. Patterson also is a board member for St. James Lutheran School, a Lafayette private school where she has two children in attendance.

"The state constitution, in my interpretation, does not allow for those tax dollars to be given to religious schools."

Enrollment for the program is open until the beginning of September, but preliminary numbers give a picture of how the voucher program will affect Lafayette-area districts in its first year.

More than 3,420 students [statewide] had been accepted into the voucher program as of Thursday, said Alex Damron, an Indiana Department of Education spokesman. * * *

As of early August, Tippecanoe School Corp. had lost 22 to the program, and Lafayette School Corp. faced the loss of 18 students.

There were no students enrolled in the program from West Lafayette Community School Corp. * * *

Anya and Tony, the children of Joshua and Veronica Warren, attended Thomas Miller Elementary School last year. The Warrens said it wasn't Miller Elementary itself but the public education system in general they were trying to avoid.

They said they've become disenchanted by their own experience in public school.

"We noticed with the Catholic school, in just the short time they've been going there, they make the kids have respect for one another and even for the janitors," Joshua Warren said.

"We just wanted them to grow up in a different environment."

Anya said she's enjoying her new school. Not only does the school give more snack times, she said, but it's easier learning about math and English in a religious environment.

"It's much better," Anya said. "And the teacher is there if anybody is mean to you." * * *

Questions remain for the Warrens, though, as the lawsuit moves forward.

"My kids, I think, are in a really good school, and I am concerned that all of a sudden the bottom will fall out," Warren said.

That uncertainty is one of the reasons Lafayette Christian School is not participating in the voucher program this year, said Principal Ken Goff.

The Department of Education still was finalizing the voucher program mere weeks before it began, which gave administrators at the school pause.

A second story today by reporter Livingston is headed "Experts say voucher case could take years to settle." Some quotes:
William McLauchlan, a political science associate professor at Purdue, said how soon a resolution can be reached in the ongoing lawsuit depends on a number of factors.

"It could go on for months, probably years, although I suspect both parties and the judge will be very conscientious about moving the case through the process as early as they can just because of the constitutional issue and that it's an expenditure of a lot of money," McLauchlan said. * * *

McLauchlan, who said he believes the system violates the state constitution, said prevailing in an injunction case is an uphill battle.

"Judges tend to be reluctant to impose a restraining order or injunction on an act of the legislature unless the petitioner can make a very strong case that it would cause irreparable injury," McLauchlan said.

Keele wrote in his Aug. 15 ruling that the law "is religion-neutral and was enacted 'for the benefit' of students, not religious institutions or activities."

Eric Waltenburg, a Purdue associate professor who specializes in part in judicial politics and constitutional law, said the ruling didn't surprise him.

"As much as anything else, the practicality of the issue that almost 3,000 enrolled already would have really resulted in a lot of dislocation with students," Waltenburg said.

The chance of having to pull students from classrooms once school started was a primary argument for the state against an injunction.

Indiana Attorney General Greg Zoeller contended that 150 students were already enrolled in schools that started the week of the hearing.

Tracy Warner, editorial page editor for the Fort Wayne Journal Gazette, has a long "Sunday Centerpiece" editorial today on Judge Keele's opinion, headlined "History, intent and 4 vital words: Why judge’s ruling backs school vouchers." (Here is the 14-page opinion, and here are the relevant constitutional provisions.)

Posted by Marcia Oddi on Sunday, August 21, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Lawmakers face critical state infrastructure needs"

From a story today in the NWI Times reported by Dan Carden:

State Rep. Ed Soliday, R-Valparaiso, sees a bleak path ahead for Indiana's roads -- and rails, bridges and ports -- unless the General Assembly starts mapping a new route to ensure the viability of the state's infrastructure.

To that end, Soliday on Tuesday will be the chairman at the first of four meetings of a study committee reviewing Indiana's infrastructure to uncover current challenges and address future needs. * * *

By 2015, nearly all the Major Moves funds gained by the Indiana Toll Road lease will be spent. In addition, declining federal gas tax revenue and the political desire for federal budget cuts probably means fewer road dollars will be sent to Indiana in years to come.

That means roads will have to be paid for by other means, probably including local government funds, Soliday said.

"We've got to look at something else because you have to be pretty naive to believe you're going to do it with the gasoline tax," Soliday said. "Everybody is going to have to be part of the solution, and it's going to take money."

Posted by Marcia Oddi on Sunday, August 21, 2011
Posted to Indiana Government

Law - "Until recently, medical files belonging to nearly 300,000 Californians sat unsecured on the Internet for the entire world to see"

The NY Times today has a long AP story, dateline San Francisco, that reports:

There were insurance forms, Social Security numbers and doctors' notes. Among the files were summaries that spelled out, in painstaking detail, a trucker's crushed fingers, a maintenance worker's broken ribs and one man's bout with sexual dysfunction.

At a time of mounting computer hacking threats, the incident offers an alarming glimpse at privacy risks as the nation moves steadily into an era in which every American's sensitive medical information will be digitized.

Electronic records can lower costs, cut bureaucracy and ultimately save lives. The government is offering bonuses to early adopters and threatening penalties and cuts in payments to medical providers who refuse to change.

But there are not-so-hidden costs with modernization.

"When things go wrong, they can really go wrong," says Beth Givens, director of the nonprofit Privacy Rights Clearinghouse, which tracks data breaches. "Even the most well-designed systems are not safe. ... This case is a good example of how the human element is the weakest link."

Posted by Marcia Oddi on Sunday, August 21, 2011
Posted to General Law Related

Law - "Author of federal act used to prosecute former East Chicago mayor explains RICO's power"

Bill Dolan has a story today in the NWI Times on University of Notre Dame professor G. Robert Blakey, who "is considered the nation's foremost authority on the Racketeer Influenced and Corrupt Organizations Act, better known as RICO." More:

Blakey drafted the federal RICO law in 1970 and Rico-type statutes in 22 states and most recently was an adviser to the Indiana attorney general's civil RICO suit against the administration of former East Chicago Mayor Robert Pastrick.

It's all an effort to stop the merry-go-round, Blakey said.

Six years of litigation ended successfully last year when a federal judge branded Pastrick's administration as corrupt and ordered Pastrick, his former aide James Fife III and former Councilman Frank Kollintzas to pay $108 million in damages for their roles in the infamous sidewalks-for-votes scandal.

Blakey said going after graft civilly may be time-consuming, but the method stands a better chance of success because there is a lesser burden of proof than the criminal standard of guilty beyond a reasonable doubt.

Posted by Marcia Oddi on Sunday, August 21, 2011
Posted to General Law Related

Ind. Decisions - Much more on the ND Ind. decision in T.V. et al. v. Smith-Green Community Schools

Updating a long list of earlier ILB entries, which already include several by Fort Wayne Journal Gazette reporter Rebecca S. Green, add two more today:

"Slumber party suit a vanguard? Schools’ right to curb students’ speech circumscribed,", by Ms. Green, is a long and very good overview of the current status of the law re student speech, the extent of a school system's authority to reach out and control it in the internet age, and where Smith-Green Community Schools fits into the picture. It is a must read.

Also today, Green looks into another aspect of the Smith-Green case:

While a federal judge has ruled Smith-Green Community Schools violated two students’ constitutional rights, whether the school district owes them money for damages has yet to be decided.

Under the 11th Amendment of the U.S. Constitution, states possess sovereign immunity and cannot be sued without their consent. That protection, however, does not extend to local branches of government, which can be sued.

This includes cities, towns and school districts.

But attorneys for Smith-Green Community Schools argue that changes made to the way public schools are funded in Indiana now make them a functioning part of state government, and thus immune from liability. * * *

“To the extent that the plaintiffs seek money damages from (Smith-Green Community Schools), they are barred because (the schools) are arms of the state for Eleventh Amendment immunity purposes,” wrote the school’s attorneys in court documents.

Smith-Green’s argument has been raised in other cases.

The case of Amber Parker v. Franklin County Community Schools Corporation is still being considered by the 7th Circuit Court of Appeals in Chicago.

The case stems from alleged violations of Title IX against a number of school districts and the Indiana High School Athletic Association, but the court is to decide whether school corporations are part of the state.

Another case was already decided at the district court level in favor of Franklin County Community Schools.

In Long v. Turner, a case that stemmed from a school-ordered drug test of a student suspected of marijuana use, attorneys for Franklin County Community Schools argued, as do Smith-Green’s attorneys, that the changes to school funding make the school district an entity that cannot be sued.

Recognizing that U.S. District Courts do not have the ability to set precedent or to set a legal rule, U.S. District Judge Sarah Evans Barker ruled in favor of Franklin County Community Schools, according to her order.

She wrote that given the current funding structure, which makes the school corporation unable to raise additional revenue independent of the state, the school corporation is financially dependent on the state, making it immune from being sued in that particular case.

When U.S. District Chief Judge Philip P. Simon of the Northern District of Indiana issued his ruling this month in the case against Smith-Green Community Schools, he held off making a ruling about whether the school was part of state government for the purposes of immunity.

When the 7th Circuit Court of Appeals makes its ruling in the Parker v. Franklin County Community Schools case, Simon said he would rule in the Smith-Green case, according to court documents.

Posted by Marcia Oddi on Sunday, August 21, 2011
Posted to Ind Fed D.Ct. Decisions

Saturday, August 20, 2011

Ind. Gov't. - "Fountain Square businesses hurt by Cultural Trail construction"

I'm happy to see this story today in the Indianapolis Star, written by Chris Sikich.

I go down to Fountain Square on business at least once a month and used to stop at Naisa Pan-Asian Café, or Siam Square, for lunch. One day in mid-winter I drove down there and Virginia Avenue was totally torn up, with a gaping hole where the two lanes on the west side of the street had been. That meant no getting to the Naisa Cafe. And the two remaining lanes became the traffic lanes, meaning no parking to go to anything on the east side of Virginia Avenue!

Each month I thought things would have improved. But instead, nothing changed! The city torn out the street, left the gaping hole, and that was it! Each month, nothing had changed, and there was no progress at all! Finally, in August, I stopped going to Fountain Square, after reading that work would not be completed until (at least) the end of this year.

Just recently, apparently, some fill has been added; here is how it looks this week, according to the Indianapolis Star. Obviously, still no parking and walking at your own risk.

Scott Olson has this August 11th story in the IBJ, headed "Cultural Trail delays take toll on Fountain Square merchants." It was this section that caused me to finally stop trying to visit Fountain Square:

Construction on the Virginia Avenue leg of the trail that runs through Fountain Square began in mid-March and remains incomplete almost five months later, even though merchants say they were told by city officials the section would be done by the end of July.

A construction zone in which parking spaces are closed, lanes of traffic blocked and sidewalks ripped up has led to a big decline in visitors to the historic neighborhood southeast of downtown, business owners say.

“A lot of the businesses in Fountain Square derive their business from foot traffic, and we’ve had an almost complete shutdown of that traffic because of the construction,” said Craig Von Deylen, president of the Fountain Square Merchants Association, in a phone interview Thursday morning.

Jeremy Brilliant of WTHR had a story August 11th that included:
INDIANAPOLIS - The Cultural Trail is supposed to help breathe new life into various parts of Indianapolis, but in Fountain Square it may be doing more harm than good.

Construction of the trail is months behind schedule and three shops have gone out of business since the construction there began. Merchants and city officials are meeting Thursday night to discuss when the work will be finished. * * *

"It's the straw that broke the camel's back, basically," said Dennis Baar.

Baar, who owns Fountain Foliage, says the demise of those businesses is construction of the Cultural Trail, which, ironically, is designed to boost business.

"Help us out. Help keep these businesses in business so when it's done they'll still be here," said Baar.

But it's difficult to get to shops when people have no place to park. That has turned the lunch rush at Pure Eatery into just a handful of patrons.

"Typically this should be a full restaurant at 12 o'clock in the afternoon and it's not. And it's not in most places around here," said Amy Andrus, Pure Eatery.

Construction began in March, but crews have not done anything in the area for weeks - as indicated by the height of weeds that have taken over. The original completion date was in July. It's now been moved to December 31st.

This afternoon an IndyStar reporter tweeted:
Yup, Fountain Square is a mess because of the Cultural Trail construction. But it'll be worth it.
But I'm sure many in Fountain Square would respond: "That's easy for you to say!"

Posted by Marcia Oddi on Saturday, August 20, 2011
Posted to Indiana Government

Ind. Decisions - Tax Court rules in puppy mill case; holds use of jeopardy assessments not warranted

Late yesterday afternoon the Indiana Tax Court filed an opinion in the case of Virginia Garwood, et al. v. Indiana Dept. of State Revenue. In the 19-page opinion, Judge Wentworth writes [cites omitted by ILB in most instances]:

On June 29, 2009, Virginia and Kristin Garwood (the Garwoods) initiated an original tax appeal, challenging the Indiana Department of State Revenue's (Department) issuance of sixteen jeopardy tax assessments for portions of the 2007 through 2009 tax years. The Garwoods and the Department subsequently filed motions for summary judgment.

In their motion for summary judgment, the Garwoods assert that the jeopardy assessments are void as a matter of law because the Department failed to provide them with an administrative hearing following their protest of the assessments, violating their procedural due process rights guaranteed under the Fourteenth Amendment to the United States Constitution. In its motion, the Department claims it is entitled to judgment as a matter of law because the Tax Court lacks subject matter jurisdiction over the Garwoods' appeal, the use of jeopardy assessments was warranted, and the use of best information available assessments (BIA assessments) was reasonable. * * *

The Department has the primary responsibility for administering, collecting, and enforcing Indiana's listed taxes, and in fulfilling its duties, it may exercise any power conferred on it under IC 6-8.1-1 et seq. To execute these duties, the Indiana Legislature has granted the Department authority to employ the powerful tool of jeopardy assessment in exceptional circumstances. Indeed, the use of a jeopardy assessment is an extraordinary measure because it allows the state to deprive a taxpayer of property without first providing constitutionally guaranteed notice or an opportunity to be heard. Clifft v. Ind. Dep't of State Revenue, 660 N.E.2d 310, 317-18 (Ind. 1995). As a result, our Legislature very narrowly tailored the Department's jeopardy assessment power to further the essential state interest of exercising its power to tax when collection is at risk. * * * To that end, IC 6-8.1-5-3 provides that one of four circumstances must exist for the Department to issue a jeopardy assessment. * * *

1. Intent to quickly leave the state. The Department may issue a jeopardy assessment when it determines a person owing taxes intends to quickly leave the state thereby avoiding tax collection. IC 6-8.1-5-3(a). The Department does not claim that the Garwoods were flight risks. * * *

2. Intent to remove property from the state. The Department may issue a jeopardy assessment when it determines a person owing taxes intends to remove property from the state to avoid the collection of tax. IC 6-8.1-5-3(a). The Department does not claim that the Garwoods intended to remove property from the state. * * *

3. Intent to conceal property in the state. The Department may issue a jeopardy assessment when it determines a person owing taxes intends to conceal property in the state to avoid the collection of tax. I.C. § 6-8.1-5-3(a). The Department claims its investigation revealed evidence of this intent that is documented in its designated sales and income tax Investigation Summaries: “Further, as the taxpayer previously refused the officer of the Harrison County Animal [C]ontrol access to their property, the taxpayer maintains the appearance that they are attempting to conceal property in the state.” Virginia's refusal to allow the Harrison County Animal Control Officer on her property in response to a consumer complaint is not evidence of her attempt to conceal property in the state within the meaning of IC 6-8.1-5-3(a). In fact, it is not reasonable to infer that her intent was to conceal property to avoid paying taxes because one would not normally expect an Animal Control Officer, who typically investigates matters involving animals, to be the emissary of the tax collector. * * *

4. Intent to do any other act that would jeopardize the collection of taxes. Finally, the Department may issue a jeopardy assessment when it determines a person owing taxes intends to “do any other act that would jeopardize the collection of [] taxes.” IC 6-8.1-5-3(a) (emphasis added). The Department promulgated its interpretation of this statutory language in regulation 45 IAC 15-5-8, explaining that the use of a jeopardy assessment is permissible when “the taxpayer does any other act tending to prejudice or render wholly or partly ineffective proceedings to compute, assess, or collect any tax levied by the state.” * * *

The actions recited include, among those discussed above, the advertisement of dogs for sale in local newspapers, the breeding and sale of dogs, the failure to register as a retail merchant, the failure to prepare and file sales tax returns, and the failure to report income earned from the retail sales of animals on their individual income tax returns. None of these actions alone constitute a litmus test for properly issuing a jeopardy assessment. Furthermore, taken as a whole, these actions suggest that the Garwoods were not properly reporting and paying taxes allegedly due, not that they intended not to pay, or preserve the wherewithal to pay, their taxes. The absence of facts demonstrating the Garwoods' intent to thwart collection is palpable.

Next, the designated facts show the Garwoods filed annual income tax returns prepared by an income tax professional. In fact, Virginia's tax preparer included income from the sale of dogs in her 2008 income tax return. Virginia stated that because her tax preparer never told her she should be collecting sales tax on her sales of dogs, she assumed, albeit incorrectly, that her sales of dogs, like her sales of livestock, were exempt from sales tax. While, the Garwoods' reliance on a tax specialist does not relieve them of personal responsibility to get their taxes right, it does not indicate their intent to thwart the tax system and circumvent the collection of taxes through regular proceedings. Thus, this is not a basis for the Department's use of jeopardy assessments in this case.

The Court holds that the Department did not show the presence of the statutorily prescribed exigent circumstances that the Garwoods' intended to quickly leave the state, remove their property from the state, conceal their property in the state, or do any other act that would jeopardize the collection of taxes. The Court's holding is consistent with the Indiana Supreme Court's explanation of the contours of jeopardy assessments. Indeed, in distinguishing the State's power to tax from its power to punish crimes, Indiana's Supreme Court explained that the power to issue jeopardy assessments “is part of the State's power of the purse, not its power of the sword[.]”

It cannot reasonably be inferred that the jeopardy assessment procedure was used in this case to protect the State's fiscal interests. For example, the day after the Garwoods' 240 dogs were seized, the Department sold them all to the Humane Society for a total of $300.00, yet logic dictates that the dogs had a value far greater than just over $1.00 each. * * * Moreover, a media circus roiled on the very day the Department and the OAG served the jeopardy assessments, jeopardy tax warrants, and seized the Garwoods' assets. Within hours of the raid, individuals from the OAG were interviewed on television and by newspapers about shutting down a “puppy mill.” The unusual occurrence of this media hype in conjunction with the Department's sale of the Garwoods' property for a nominal sum demonstrate that the Department wielded the power of jeopardy assessments as a sword to eliminate a socially undesirable activity and close down a suspected “puppy mill,” [15] not to fill the State's coffers with the tax liabilities the Garwoods purportedly owed.

Jeopardy assessments are a powerful collection tool that, when properly used, further the important state interest of collecting state tax revenue needed to pay for critical governmental services and conducting the business of the state. The designated evidence shows that the Garwoods did not remit the proper amount of tax due to the state on their sales, a fact the Garwoods have repeatedly acknowledged. Nonetheless, the Department overstepped its authority in this case by issuing jeopardy assessments without having shown the exigent circumstances required by Indiana Code § 6-8.1-5-3 and 45 IAC 15-5-8. Consequently, the Court holds that the sixteen jeopardy assessments issued to the Garwoods for all or part of the 2007 though 2009 tax years are void as a matter of law. * * *

CONCLUSION. For all the foregoing reasons, the Court DENIES the Department's motion for summary judgment in its entirety and GRANTS summary judgment in favor of the Garwoods. The Court REMANDS the matter to the Department and ORDERS it to void all of the Garwoods' jeopardy assessments and take any other actions necessary to give full effect to this Order. The parties shall bear their own costs.
_________________
[15] 15 (See Petrs' Des'g Evid. Vol. 2, Ex. J at 1, 4 (article written by Andrew W. Swain, Tax Ills Behind the Mills – the Advancement of Puppy Protection, stating “[s]o far, using its state tax laws, Indiana has successfully closed two puppy mills and prosecuted their operators for various tax crimes”) and (citing "Puppy Mill Busted: Dogs Taken from Harrison County Farm to New Albany Warehouse," Ind. Law Blog (June 3, 2009), available at http://indianalawblog.com/archives/2009/06/ind_law_puppy_m.html (discussing the Virginia Garwood case”).)

ILB comments: What exactly happened the day the Office of the Attorney General and the Department of Revenue served the jeopardy assessments? From the opinion, pp. 5-6:
The following day, June 2 [2009], a tumultuous series of events took place as an unspecified number of individuals from the OAG and the Department went to the Garwoods' residence just after 7:00 a.m. to serve the jeopardy assessment documents and demand immediate payment of the tax, interest, and penalties allegedly owed. An investigator from the Department's special investigation unit explained to each of the women individually that the amount she owed was $142,367.94 and that without immediate payment, the State would then and there “levy [her] personal property to satisfy the taxes due[.]” When first Virginia and then Kristin stated that she could not pay that amount immediately, the investigator served each with the Jeopardy Tax Warrants and the associated Investigation Summaries. The Department and the OAG, assisted by the Indiana State Police and sixty volunteers from the United States and Missouri Humane Societies, seized all 240 dogs on the premises, including the Garwoods' house pets and farm dogs. Other property seized from the Garwoods included $1,260 in cash, business records showing the Garwoods received $25,274.31 from their dog sales, un-cashed checks totaling $1,325 (two containing dog sale notations), and copies of Virginia's 2005, 2007, and 2008 federal and state income tax returns. Later the same day, the Department and the OAG filed with the Harrison Circuit Court all of the Jeopardy Tax Warrants and a Verified Petition for a Post-judgment Restraining Order and Injunction that sought to enjoin the Garwoods from doing business in Indiana until their tax liabilities were satisfied. That afternoon, the Attorney General held a television press conference and newspaper interview, publicizing the seizure of the Garwoods' dogs.

The next day, the OAG (on behalf of the Department) sold all of the 240 dogs seized to the Humane Society of the United States for a total of $300.00.

The ILB has a number of entries on this case. Of particular interest, in addition to the June 3, 2009 entry cited in yesterday's opinion, is this Dec. 22, 2010 ILB entry re Judge Fisher's opinion denying the DOR's motion to dismiss on the ground's that the Tax Court lacked jurisdiction; and this Dec. 25, 2010 ILB entry quoting from several news stories, most notably one from WTHI that included:
In the case of Clark’s business Love My Pets , located at 10203 East Dobson Road in rural Bloomfield, the business’ inventory consisted of approximately 120 puppies and dogs.

On Wednesday, the Attorney General’s Office served Clark with the jeopardy assessment after it was filed in court. Then volunteers from several animal-rescue groups began the process of removing the puppies and dogs from their enclosures in a building on the property. * * *

This is the third time in the past two years that the Indiana Attorney General’s Office has taken legal action against commercial dog breeding operations for tax evasion offenses.

  • In December 2008, under former Attorney General Steve Carter, 74 dogs and puppies were seized from a dog breeding business owned and operated by Tammy Gilchrist in Cloverdale, Ind. Gilchrist and two accomplices later pleaded guilty to failure to collect or remit sales taxes and were sentenced to probation.
  • In June 2009, under current Attorney General Zoeller, 244 dogs and puppies were seized from a dog-breeding business operated by Virginia Garwood and Kristin Garwood in Mauckport, Ind. Both Garwoods later pleaded guilty to failure to collect or remit sales taxes and also were sentenced to probation.
Although the Attorney General’s Office normally does not have legal jurisdiction to file criminal charges, sales tax and income tax evasion are the exceptions, and the Attorney General can file such charges directly. In today’s tax enforcement action in Greene County, however, Clark has not been charged with any crime while the investigation continues into the delinquent taxes.

The filing of the jeopardy assessment in civil court triggers a legal process where the Attorney General, representing the Department of Revenue, seeks to collect the delinquent taxes. Clark, like any delinquent taxpayer, has the legal right to challenge the state’s action in civil court.

The most recent ILB entry was from April 10, 2011, and headed "Puppy mill case appears to be heating up," worth reading in that it indicates that in March of this year Judge Wentworth admonished the parties - "As an initial matter, the court notes the increasingly inflammatory rhetoric by the parties in this cause," and ordered it to cease.

The "Al Capone strategy." Finally, 6News' Rafael Sanchez had an interesting story on the August 2, 2011 evening news:

INDIANAPOLIS -- Taking a page from the history books, the Indiana Attorney General's Office is using tax law to prosecute those suspected of running illegal operations, but at least one defense attorney is questioning the tactic.

It's called the Al Capone strategy after the 1920s criminal mastermind who was finally brought to his knees for not paying taxes.

Attorney General Greg Zoeller is trying to do the same with Hoosiers who try to slip through the cracks.

"The common denominator in some these cases is that they been scamming the public, and the only thing we found to stop these activities is to file these tax charges," he told 6News' Rafael Sanchez.

All tax-related cases are heard in Indianapolis because it's where state taxes are sent. But noted Indianapolis defense attorney Jack Crawford argues that criminal jurisdiction should be local.

Crawford is representing Tuan Chu, a glass repairman accused of intentionally busting out windows and then charging his victims for the repair.

Chu beat prosecution in Boone County, but with new complaints in Marion County, the state managed to close his operations by filing tax evasion charges.

"The actual decision to bring a person to trial in a local jurisdiction should be made by locally elected prosecuting attorney," Crawford said.

The attorney general's office is defending its new tactic.

"These cases represent the worst of the worst," said Deputy Attorney General Andrew Swain. "We've exhausted our civil remedies to shut them down."

If Chu is convicted, Crawford could make his case to the Indiana Court of Appeals.

The accompanying video story, with Rafael Sanchez, includes clips of puppies being confiscated for failing to pay back taxes, with quotes from AG Zoeller and Deputy Swain on prosecuting the "worst of the worst," and ends with defense attorney Jack Crawford contending that the decision to prosecute should be made by the locally elected prosecuting attorney, not the AG.

Posted by Marcia Oddi on Saturday, August 20, 2011
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - Two notable stories on local government bidding today

"Second round of bids saves Monroe County big money on courthouse project" is the heading to this story ($$$) reported by Rod Shaw in today's Bloomington Herald Times. It begins:

Rebidding a portion of the Monroe County Courthouse project paid big dividends Friday with the acceptance of a bid that was more than half a million dollars lower than a previous bid attempt.

A bid of $589,000 in the “general trades” category, or general construction labor, was accepted from Tri-County Builders Co. of Bedford. In a previous round of bidding in July, the lone bid in that category topped $1.2 million, which prompted the Monroe County commissioners to try again.

Kelly Abel, of Weddle Bros., which has been retained to do construction management for the courthouse work, attributed the lower price to having six bidders this time, compared to just one in July. The main goal of the project is to add a steel support structure to the courthouse.

Also today, in a story related to earlier stories (ILB list here) on a proposed Fort Wayne ordinance that would ban city contractors from making political donations to city politicians, Benjamin Lanka reports today in the FWJG:
Mayor Tom Henry’s administration on Friday entered the fray over how the city should best select its contractors.

In a proposed ordinance to the City Council, the mayor proposes a “qualified based selection” process that would choose accountants, attorneys, engineers and other professionals on qualifications before negotiating cost.

Deputy Mayor Beth Malloy said the bill dates back a year when she and others described the proposed selection process with council members. The introduction this month was partly spurred by requests by former city councilman John Crawford to use competitive bidding to select professionals.

The bill would require the city to evaluate the qualifications of professional services based on experience, local experience, references and other criteria to create a list of finalists.

After finalists are selected, the top-rated firm would enter into negotiations with the city to determine price based on the scope of the project. If the city couldn’t agree to a price with the top-rated firm, the city would enter negotiation with the next firm in the rankings.

This differs greatly from the legal bidding process, where vendors are ranked first on price and can’t be rejected unless they don’t meet certain requirements outlined in the bid document. For example, the city used the bidding process to select its garbage and recycling contractors, but did not use it to choose its technology vendor.

Malloy said people wouldn’t want to pick an engineer based on price for the same reason they don’t choose the cheapest doctor.

“It’s an accepted best practice to not purchase services that way,” she said, noting the city wants the best value for its contract, not necessarily the lowest price.

She said the process being proposed is already used by the city’s public works department and City Utilities. * * *

The city’s proposal comes in the middle of a long and heated discussion over whether city contractors should be able to donate to city political campaigns.

Posted by Marcia Oddi on Saturday, August 20, 2011
Posted to Indiana Government

Ind. Gov't. - Starke County Treasurer Restraining Order Hearing Rescheduled

Updating earlier ILB entries, the most recent from August 17th, K99.3 WKVI FM reported yesterday:

A hearing was to have been held today to discuss the temporary restraining order issued by the Starke Circuit Court that relieved Treasurer Linda Belork of her duties. Belork’s attorney Ethan Lowe, of Valparaiso, asked for a change of venue, so the hearing has been rescheduled for Aug. 30.

Lowe and County Attorney Martin Lucas will discuss an acceptable change of venue court for the hearing.

Posted by Marcia Oddi on Saturday, August 20, 2011
Posted to Indiana Government

Ind. Decisions - More on: Marion County court denies school voucher injunction

Updating this ILB entry from August 15th, Dan Carden of the NWI Times reported yesterday evening:

The state's largest teachers union will not appeal a judge's denial of a temporary injunction it sought to halt Indiana's new school voucher program.

Instead, the Indiana State Teachers Association announced Friday it will seek a full trial in a Marion County court on its claim that using public tax dollars to pay tuition for students attending private schools violates several provisions of the Indiana Constitution prohibiting state support of religious institutions.

"This week's ruling was only the very beginning of the litigation in this case," said Teresa Meredith, a Shelbyville teacher and lead plaintiff. "It's important to Indiana and its public schools that we continue to pursue this challenge, and we will pursue it before the trial court and higher levels of the court system."

Today Niki Kelly of the Fort Wayne Journal Gazette reports:
As the Indiana State Teachers Association vowed Friday to continue its legal fight against the state’s new voucher program, the Indiana Attorney General’s Office filed a motion asking that the case be dismissed. * * *

Attorney General Greg Zoeller, though, is using the judge’s initial ruling as a basis to have the entire case dismissed.

“The Court rejected plaintiffs’ claims in such complete and definitive terms that no room remains for plaintiffs to seek to prevail on the merits by way of adducing additional evidence,” the state’s motion contends.

[More] TheFranklinOnline,com's story yesterday included:
ISTA has argued that violates Article 1, Section 4 of the Indiana Constitution, which prohibits using taxpayer money to support religion. But Keele wrote in his decision Monday that the Section 4 provision is “more about protecting citizens from forced tithing or other similar government-coerced direct, individual support for churches or ministries.”

Keele also said the provision “does not preclude the use of general tax revenues scholarship that may be used, at the discretion of scholarship recipients, to pay for education at religious schools.”

In its statement Friday, ISTA said, “It’s clear that the judge didn’t address the fact that 97 percent of the schools participating in the program are religious.”

“As a consequence, for all but a handful of parents, the only real option under this voucher program is the option of using a voucher to attend a religious school,” ISTA said.

Posted by Marcia Oddi on Saturday, August 20, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Lawsuits filed on behalf of couple in State Fair collapse seek at least $60M: Partners attended Sugarland show, but only one left fairgrounds alive"

That is the headline to this lengthy Indianapolis Star story today, byline Jon Murray. Some quotes:

Friday, as two investigative consultants hired by the state were still getting their bearings, a Northwest Indiana law firm fired the first volley of lawsuits.

Both seek tens of millions from a handful of companies that put on the Aug. 13 concert at the Hoosier Lottery Grandstand.

One also targets the state, seeking to put the brakes on the official investigation by preserving the wreckage.

The lawsuits are on behalf of a couple from Wanatah, Ind., who have been partners for 10 years and attended the show together.

Only one left the Fairgrounds alive.

"This was a terrible tragedy that could and should have been prevented," Valparaiso attorney Kenneth J. Allen said in a news release. "The responsible parties must be held to account."

Doing so makes the next few days vitally important, he said, "since much of the critical evidence of fault is in the possession or control of the wrongdoers at this point."

Allen, who represents Janeen Beth Urschel, 49 -- who survived -- and the estate of her partner, Tammy VanDam, 42, said the lawsuits are just the first part of what will expand into a more complex case.

Eventually, Allen said in an interview, he plans to challenge Indiana law's lack of recognition of a same-sex partner as a beneficiary under its wrongful-death law.

He still plans to seek damages from the state, since VanDam leaves behind a 17-year-old daughter who qualifies as a legal beneficiary.

But for now, the initial lawsuits seek damages against a laundry list of companies involved in the concert -- Mid-America Sound Corp. of Greenfield, which owns the stage rigging structure; Live 360 Group, the show's Indianapolis-based booker; and Live Nation Entertainment, owner of Ticketmaster.

Allen is seeking $50 million for VanDam's estate and $10 million plus punitive damages for Urschel.

The VanDam lawsuit so far names the state and the Indiana State Fair Commission only in asking a LaPorte County judge to issue a temporary restraining order preserving the site and other potential evidence. * * *

A LaPorte Circuit Court judge set a hearing on the matter for Tuesday. * * *

Urschel and VanDam obtained a civil union in Hawaii, Allen said, but that arrangement is not recognized under Indiana law.

Posted by Marcia Oddi on Saturday, August 20, 2011
Posted to Indiana Courts | Stage Collapse

Friday, August 19, 2011

Ind. Courts - "Lawsuits seek fairgrounds injunction"

WISH TV is reporting briefly on two suits filed in LaPorte County:

... asking a local judge to issue an injunction that would prohibit the state from removing or destroying evidence associated with the stage collapse.

Posted by Marcia Oddi on Friday, August 19, 2011
Posted to Indiana Courts

Ind. Gov't. - More on: Clark County sheriff files "mandate" suit against county for funding

Devin Katayama is reporting at WFPL News that "Clark County Will Have to Pay Sheriff’s Bills." Some quotes:

A Clark County, Indiana judge has mandated the county find a way to pay the bills of the Sheriff’s Department. The price is around $1.6 million dollars.

Judge Dan Moore ruled that the commissioners, council and sheriff will have a mediation process to figure out how to make the payment. Clark County Sheriff Danny Rodden announced earlier this month he was making cuts to his budget. This was in response to the council requesting departments find a way to stay within budgets by years-end. But even after the cuts, the council said that wasn’t enough.

Certain departments, like the courts, can mandate their budgets be paid, said Council President Kevin Vissing. The county needs the courts. And now the courts have ruled that the county needs the sheriff’s department.

“We really cannot operate without the police and the county jail so it’s something we really have to do,” he said.

From the Louisville Courier Journal, Ben Zion Hershberg reports in a long story:
Rodden’s lawsuit asks the court for emergency financial relief, claiming his budget is $1.6 million short of what he needs to provide the police, jail and court-related services he’s required to provide by state law.

Moore read from his order, which he said mandated that “the jail will stay open” and “the police department will stay open.” The order cited a state statute that allows county government to borrow against expected funding if necessary to pay its bills.

He ordered the sheriff, commissioners and council to participate in mediation to resolve their differences. He appointed Richard Payne of Greenfield, Ind. as mediator, at a fee of $250 an hour plus travel expenses, to be paid by the county.

Braden Lammers has a lengthy report in the New Albany News & Tribune. A quote:

In the petition filed by Michelle Cooper, attorney for Rodden, he requests that the county restore the $1.6 million that was cut out of his budget in March. The sheriff will need a minimum of $1.34 million to meet his payroll obligations for the remainder of this year, according to the petition.

“The sheriff sees this as a dire emergency,” Cooper said. “He does not want to be put in a position of having to close the jail facility, he has many statutory obligations ... he would be unable to meet these obligations and continue to provide the appropriate police functions — and even court-related functions that the sheriff’s department serves — if the money is depleted.”

To offer an example of how strapped the sheriff’s budget is, Cooper said after paying his Aug. 10 payroll, Rodden had a remainder of $105,000 to pay the salaries of the jail’s employees. The sheriff’s payroll, which is bi-weekly, totals more than $120,000 for only the jail’s employees.

The financial strains facing Rodden’s department were not disputed by the council or the commissioners, who were both named in the petition filed by Rodden.

“We acknowledge unless there is some kind of change in either funding or services that it will be difficult for the sheriff to continue on the services [his department] is providing now,” said Scott Lewis, attorney for the council.

Greg Fifer, attorney for the commissioners, agreed, but added his own filing to the suit submitted by Rodden. He filed a cross-claim requesting that the sheriff pay back $192,587 to the commissioners’ Cumulative Capital Development fund used in late December to cover a shortfall in the jail’s operating expenses.

Posted by Marcia Oddi on Friday, August 19, 2011
Posted to Ind. Trial Ct. Decisions

Environment - "Fish threat spurs call to reverse Chicago River again"

A long and comprehensive story today by AP writer Tammy Webber. It begins:

CHICAGO — The city was in a predicament. By the late 1800s, the slow-moving Chicago River had become a cesspool of sewage and factory pollution oozing into Lake Michigan, the source of drinking water for the bustling metropolis.

The waterway had grown so putrid that it raised fears of a disease outbreak and concerns about hurting development. So in a first-of-its-kind feat, engineers reversed the river by digging a series of canals that not only carried the stinking mess away from the lake, but also created the only shipping route between the Great Lakes and the Mississippi River.

Now a modern threat — a voracious fish that biologists are desperate to keep out of Lake Michigan — has spurred serious talk of undertaking another engineering feat almost as bold as the original: reversing the river again to restore its flow into the lake.

This part is quite interesting:
But carp are not the only threat. A corps report issued this summer identified eight other species that could enter the lakes.

What’s more, the agency concluded, the lake isn’t the only body of water in danger. The risk to the Mississippi basin is even greater because the canals offer a potential highway for about 30 species to invade the river and its tributaries from the Great Lakes.

“That was one of those ‘Aha!’ moments,” said David Wethington, who’s managing the corps study. “You hear a lot about Asian carp and the potential devastation (to the Great Lakes), but what if things go the other way?”

The idea of separating the two watersheds, which have no natural links, has gained support from powerful lawmakers, surrounding states and scientists who believe it’s the only way to avoid irreversible ecological and economic harm.

“If we don’t, a century from now, our children and grandchildren will have lakes full of invasive species ... and we will be sacrificing two of the greatest freshwater ecosystems of the United States to invasion and lost economic opportunity,” said Joel Brammeier, president of the environmental advocacy group Alliance for the Great Lakes.

Posted by Marcia Oddi on Friday, August 19, 2011
Posted to Environment

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In George A. Feuston v. State of Indiana , a 16-page opinion, Judge Crone writes:

George A. Feuston was arrested in Jay County and charged with theft. While out on bond, Feuston failed to appear for his pretrial conference, and he was later arrested in Delaware County on an unrelated charge. After he was incarcerated in Delaware County, no further action was taken in the Jay County case until Feuston, acting pro se, filed a “Motion Requesting Final Disposition of Charges/Detainers.” Appellant’s App. at 20. Thereafter, Feuston was appointed counsel, who filed a motion for discharge pursuant to Indiana Criminal Rule 4(C). The trial court denied the motion and certified its order for interlocutory appeal. We accepted jurisdiction, and oral argument was held on June 27, 2011, in Indianapolis. Concluding that Feuston caused the delay in the Jay County case by absconding and failing to appear at his pretrial conference, we affirm. * * *

When a defendant absconds, the ensuing delay is caused by his act; therefore, we conclude that the Criminal Rule 4(C) clock does not resume until the trial court and prosecutor have actual knowledge of his whereabouts. To hold otherwise would reward a defendant who absconds in the hope that the court and prosecutor will lose track of his case. Feuston presented no evidence that the trial court and prosecutor knew where he was before he filed his motion on August 17, 2010; therefore, we conclude that he has not demonstrated that he is entitled to a discharge. Affirmed.

ROBB, C.J., concurs in result with separate opinion.
NAJAM, concurs.

[CJ Robb's concurring opinion begins] Although I agree with the majority that the trial court did not err in denying Feuston’s motion for discharge pursuant to Criminal Rule 4(C), I respectfully concur only in the result because I believe the majority’s holding is too broad given the fact-sensitive nature of Rule 4(C) inquiries.

NFP civil opinions today (3):

Crystal A. Ridgeway v. Kinser Group II, LLC, et al. (NFP)

Gary W. Moody v. City of Franklin (NFP)

S.W. v. E.W. (NFP)

NFP criminal opinions today (4):

Zachary Wolfe v. State of Indiana (NFP)

Anthony Hollowell v. State of Indiana (NFP)

Theodore Schwartz v. State of Indiana (NFP)

Donald Huesing v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 19, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court issues opinion

In Miller Brewing Company v. Indiana Dept. of State Revenue, a 12-page opinion issued yesterday, Sr. Judge Fisher writes:

Miller Brewing Company (Miller) appeals the Indiana Department of State Revenue's (Department) denial of its claims for refund of Indiana adjusted gross income tax and supplemental net income tax (collectively, AGIT) paid for the 1997, 1998, and 1999 tax years (the years at issue). The case presents one issue for the Court to decide: whether, for purposes of calculating its Indiana AGIT liability, Miller's sales to Indiana customers are allocated to Indiana if those customers hired common carriers to pick up their merchandise at Miller's Ohio facility. * * *

In determining its Indiana AGIT liability for the years at issue, Miller did nothing more than follow Indiana law: pursuant to Indiana Code § 6-3-2-2(e)(1) and 45 I.A.C. 3.1-1-53(7), its carrier-pickup sales were not Indiana sales and therefore not allocable to Indiana. Accordingly, the Court GRANTS summary judgment in favor of Miller and against the Department.

This is the fourth opinion issued this year by the Tax Court.

Posted by Marcia Oddi on Friday, August 19, 2011
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - "State prison data used to drive reform legislation under review"

Maureen Hayden, CNHI Statehouse Bureau, reported in the August 17th Herald Bulletin:

Indiana prosecutors who opposed a failed criminal sentencing reform bill are getting some vindication: The prison data that drove the legislation is being re-examined.

In recent weeks, an Indiana Department of Correction consultant has been meeting privately with prosecutors who’d argued that a report that showed Indiana’s prison population was escalating with low-level offenders was flawed.

John Von Arx, a criminal justice consultant and former public safety policy director for Gov. Mitch Daniels, characterized his work for the IDOC as “peeling back the onion” to look closer at the data used to argue for legislation aimed at reducing the state’s prison population. He’s expected to give an update on his work Thursday to a legislative committee studying Indiana’s criminal sentencing polices.

State Sen. Richard Bray, the Republican chair of the Senate Judiciary Committee and an initial supporter of sentencing reform, said the numbers used to build a case for the reform legislation were “sloppy” and needed to be re-examined.

The “peeling back the onion” analogy was also used by state Rep. Ralph Foley, a sentencing reform advocate who pushed for a closer look at the disputed data as a way to get the derailed legislation back on track.

Foley, a Republican lawyer from Martinsville, said the data dispute had “bogged down” efforts to overhaul how Indiana treats crime and punishment. “We need to be talking about policy and not be arguing about the numbers behind the policy,” Foley said.

Floyd County Prosecutor Keith Henderson, a member of the Indiana Prosecuting Attorneys Council who’d questioned the numbers, said he had confidence in Von Arx. “I think he’s committed to doing what he was hired by the DOC to do, which is to get the right numbers out.”

The numbers in question are critical. They were used by the Council on State Governments and the Pew Center on the States to compile a report, released in January, that showed Indiana’s prison population had increased more rapidly than surrounding states over the past decade and was on track to keep escalating at an enormous cost to the state budget.

But prosecutors questioned why that report used prison population numbers from 2000 to 2008, which showed a rise in prisoners, but didn’t use numbers from 2009 and 2010, which showed a leveling off of the prison population — a trend that Henderson said would have undermined the argument for sentencing reform.

Prosecutors also questioned the report’s finding that about half of new prisoners in DOC facilities were people whose crimes fell into the least serious category, Class D felonies. Those numbers were used as basis for the sentencing reform bill that would have reduced penalties for low-level drug and property crimes and shifted those offenders out of state prisons and back into local jails and community corrections programs.

Henderson said those Class D felony numbers are misleading because they fail to account for why those offenders had been sent to prison. He said prosecutors and judges aren’t likely to send low-risk, first-time offenders with Class D felony charges to prison. “We need to look deeper into these numbers,” Henderson said.

That may require months of work since the DOC doesn’t keep the kind of detailed sentencing records on Class D felons that they do on offenders charged with more serious crimes. Von Arx said it may require digging into local court records.

Robert Coombs, a senior policy analyst at the Council on State Governments, said a review of the data used in the Council’s prison report may be helpful. “It’s totally appropriate to look into the numbers,” he said.

But he also said the dispute over the data shouldn’t undermine the report’s findings that Indiana has disproportionately harsh punishments for low-level drug and property crimes. “It doesn’t change the fundamental question of whether or not people committing low-level property and drug crimes are getting sanctions that don’t fit the crime,” Coombs said.

Posted by Marcia Oddi on Friday, August 19, 2011
Posted to Indiana Government

Ind. Law - Still more on “Today’s headline is tomorrow’s legislation”

Updating this ILB entry from July 12, 2011, the somewhat surprising outcome to yesterday's legislative committee hearing on a "Casey Anthony law" is summarized in this headline: "State Lawmakers 'Unenthusiastic' About Casey Anthony Law" from Indy 6News. Check the Norm Cox video story.

Posted by Marcia Oddi on Friday, August 19, 2011
Posted to Indiana Law

Ind. Law - "Ice Miller to merge with Columbus, Ohio firm"

Jeff Swiatek of the Indystar reports a story announced this morning by Ice Miller:

Ice Miller, the third-largest law firm in Indianapolis by revenue, will announce today it is combining with the smaller Columbus, Ohio, firm of Schottenstein Zox and Dunn.

The merger, to be effective Jan. 1, was approved by both firms earlier this week. The Ohio firm will take on Ice Miller's name, and its 30 shareholders will become partners in Ice Miller.

Here is the announcement from the firm.

Posted by Marcia Oddi on Friday, August 19, 2011
Posted to Indiana Law

Thursday, August 18, 2011

Ind. Gov't. - "Ind. self-policing raises questions on fair probe" [Updated]

Charles Wilson of the AP has a long story this afternoon, here as published via the Atlanta Journal Constitution website, that begins:

INDIANAPOLIS — Indiana's decision to essentially police itself as it investigates a fatal stage collapse at the state fair is raising questions about how objective the probe will be.

Workplace safety agencies, state police and fair officials are looking into Saturday's collapse that killed five people and injured dozens more. All are under the jurisdiction of the state, which also put on the fair. The lone outside agency brought in so far is an engineering firm hired by the Indiana State Fair Commission, raising questions about its independence.

Other states in similar positions have formed special commissions with outside experts to handle investigations, including of a bonfire collapse at Texas A&M University and the Columbine High School shootings in Colorado. Indiana Gov. Mitch Daniels so far hasn't mentioned the idea, and instead has repeatedly referred to the wind gust that toppled the stage but spared other nearby structures as a freak occurrence that couldn't have been anticipated.

[Updated at 5:25 PM] within the hour, the Governor's office has issued a press release announcing:
INDIANAPOLIS (August 18, 2011) – The nationally recognized public safety and crisis management firm Witt Associates has been hired to assist the Indiana State Fair Commission’s investigation of the tragedy at the Indiana State Fair on Aug. 13.

Governor Daniels contacted James Lee Witt, chief executive officer of Witt Associates, today to hire Witt’s company to conduct a comprehensive, independent analysis of the state fair’s preparedness and response to Saturday night’s event. Witt Associates, with headquarters in Washington, D.C., will complete an investigation and provide a report to the Fair Commission and the governor on all aspects of the adequacy of state fair procedures and the effectiveness of decision-making during and after the event as well as the response to the accident.

“With Thornton Tomasetti conducting the structural investigation and Witt Associates reviewing decision-making and preparedness, we believe we have the best people in America looking at every angle of the accident,” said Andre Lacy, chairman of the Indiana State Fair Commission.

Here is the just-posted AP story in the AJC. It apparently has replaced the earlier version, quoted above.

Posted by Marcia Oddi on Thursday, August 18, 2011
Posted to Indiana Government | Stage Collapse

Ind. Gov't. - "New ballot has no place for one-person race"

Interesting story today in the Lafayette Journal Courier, reported by Dorothy Schneider. Some quotes from the long story:

Voters who turn out this fall for municipal elections in Lafayette and West Lafayette will find some notable names missing from the ballot.

Among them: Lafayette Mayor Tony Roswarski and City Clerk Cindy Murray, and West Lafayette Clerk-Treasurer Judy Rhodes.

They're not dropping out of the races. Those candidates simply don't have any opposition, so thanks to a new Indiana law, their names and offices will be removed from the ballot.

They're not too happy about it. And neither are local election officials, who are already making plans to deal with voters they expect will be confused by the blank spaces where names have traditionally been on ballots.

The new state law says "an election may not be held for a municipal office if there is only one nominee for the office."

That provision cleared the General Assembly this spring as part of a voluminous bill changing various election rules and procedures. It went into effect July 1. But it was only recently that local officials learned about it, and some officials are still trying to decode the rule.

Posted by Marcia Oddi on Thursday, August 18, 2011
Posted to Indiana Government

Ind. Decisions - Still more on: Supreme Court issues much-anticipated ruling in A.B.

This August 4th ILB entry reported that the Attorney General has filed a 14-page petition for rehearing re the Supreme Court's June 29th opinion in Indiana Department of Child Services v. A.B.

On August 14th the Fort Wayne Journal Gazette published this editorial on the Supreme Court's decision:

A turf battle between Indiana juvenile court judges and the Department of Child Services might not have ended, but now has clearer rules thanks to a recent Indiana Supreme Court ruling. The clarity will help court officials make decisions in the best interests of at-risk young people.

At issue was a last-minute provision inserted in the 2009 budget bill giving DCS final authority in determining where juveniles would be placed. When the state took over responsibility for child welfare costs in 2008, a mechanism was put in place for the Indiana Court of Appeals to decide in cases where the state and a county juvenile judge disagreed on the best placement. When several appeals were decided in favor of the judges’ recommendations, Department of Child Services Director James Payne went to the General Assembly to end the negotiated resolution.

The court ruled unanimously that the statutes related to the juvenile judges’ authority on placements are constitutional. But it also ruled that DCS acted “arbitrarily and capriciously” in rejecting a St. Joseph County judge’s recommendation to place a delinquent teen in an Arizona facility and ordered the state to pay for the placement.

Carolyn Foley, juvenile referee for Allen Superior Court’s Family Relations Division, said the ruling is important in clarifying that while the state has fiscal authority in placement decisions, ultimately, judges have the discretion to determine the best course for a juvenile.

“The good news is that placement is an order of last resort; it’s not a remedy that is used terribly often. That’s why the cases are so sparse and why this is so important at the local level,” she said.

Foley could recall just one example of an out-of-state placement made by an Allen County court since 1999. She said it involved a young girl involved in the local drug scene.

“Her personal safety was at risk if she remained in the area,” Foley said. “She was a child who was horribly addicted to cocaine, also using alcohol and marijuana, and hanging out with some very dangerous people. The court felt the best way to ensure her personal safety was to get her out of the state.”

Northeast Indiana is fortunate to have strong programs available when it is necessary to remove a juvenile from his or her home, Foley said.

Still, there are cases where an out-of-state placement is best for the juvenile and – in the St. Joseph case – cheaper than the state’s recommendation.

“Judges in Indiana are elected and they are quite well aware of their obligation not just to be fair and impartial, but also to be fiscally responsible,” Foley said. “They have a dual responsibility, and for the most part, our judges meet both.”

The Indiana attorney general’s office has asked for a rehearing before the Supreme Court, arguing that DCS should have “unreviewable power” in deciding whether to pay for an out-of-state placement. The court should deny the request, sticking with its decision affirming judicial discretion.

Posted by Marcia Oddi on Thursday, August 18, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - ACLU sues in federal court "to block South Bend from spending $1.2 million to buy a Family Dollar store and selling the property for $1 to the local Roman Catholic diocese"

So reports the AP's Tom Coyle today in a story published in the Chicago Tribune. Some quotes:

"We hope to protect parents from having to support religious schooling that they don't agree with," said Barry Lynn, executive director of the American United group. "We think religious schools ought to be supported entirely from the goodwill of the folks that believe in that religion. They should not be turning to the rest of taxpayers to fund those projects and ministries."

The groups' complaint was filed a day after Marion Superior Court Judge Michael Keele declined to halt Indiana's broad new school voucher program, saying the law was "religion-neutral" and likely to be upheld. The voucher law is being challenged by a group of teachers and religious leaders backed by the Indiana State Teachers Association, claiming it violates the Indiana Constitution by providing public money to religious institutions.

The South Bend City Council voted 5-4 in June in favor of Mayor Steve Luecke's request to buy the Family Dollar property and transfer it to St. Joseph's High School. The diocese broke ground in June for the school, which is moving from its current location near the University of Notre Dame to the former site of St. Joseph Regional Medical Center near downtown. The school is scheduled to open in fall 2012.

City Attorney Chuck Leone said Tuesday that he was still reviewing the complaint, but says the city contends the deal will benefit the citizens of South Bend.

Here is a copy of the 8-page complaint, plus exhibits (42 pp. total), in Wirtz v. South Bend (ND Ind.), via eNews Park Forest.

Posted by Marcia Oddi on Thursday, August 18, 2011
Posted to Indiana Courts

Courts - "Michigan Judges Agree With Need to Cut Court Budgets"

That is the headline to this entry in the WSJ Law Blog that begins:

In this age of fiscal austerity, we’ve read many accounts of judicial officials raising concerns that proposed budget cuts to state courts could thwart litigants from exercising their legal rights.

In Michigan, though, state judges are on board with a proposal to trim their budgets.

In this statement, the Michigan Supreme Court today announced that trial and appellate judges in the state agree with a state report that recommends eliminating 45 trial judgeships and four appellate judicial positions.

Posted by Marcia Oddi on Thursday, August 18, 2011
Posted to Courts in general

Ind. Courts - "Plea deal reached in former Harrison sheriff Mike Deatrick's sexual-battery case"

Updating this list of earlier ILB entries, Grace Schneider has this story in today's Louisville Courier Journal.

Posted by Marcia Oddi on Thursday, August 18, 2011
Posted to Indiana Courts

Ind. Decisions - "Teacher contract rejected: Judge says new state form could have required additional days at no pay"

Vic Ryckaert of the Indianapolis Star has the story here. Some quotes:

A Marion County judge has sided with a teachers union, granting an injunction ordering the Indiana Department of Education to develop a new teacher contract form for the current school year.

In his eight-page order Wednesday, Superior Court Judge Patrick L. McCarty called the new form "contradictory," "vague" and even "unconscionable," because it would have given superintendents the power to require teachers to work additional hours or days without having to pay for their time.

"The form must comply with general principles of contract law," McCarty said. "The regular teacher's contract drafted by (Indiana Superintendent of Public Instruction) Dr. (Tony) Bennett is unconscionable in that it gives school corporations the authority to unilaterally modify the number of days and hours that a teacher must work, but it does not require the school corporation to pay for the additional labor." * * *

The revised contract forms, issued last month by Bennett, included only a minimum number of hours that teachers must work. The Indiana State Teachers Association objected and filed suit July 26.

Here is a copy of the August 17th order from Judge Patrick L. McCarty, Marion Superior Court Civil 3.

Posted by Marcia Oddi on Thursday, August 18, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Legal error delays work at Union County Courthouse: General Assembly's failure to set common wages as stalled courthouse drainage project"

Pam Tharp reports today in the Richmond Palladium-Item in a story that begins:

LIBERTY, Ind. -- An omission by the Indiana General Assembly in a revision this year of common construction wage law has stalled a project to install a perimeter drain around the Union County Courthouse.

It also might halt several county ditch repair projects whose bids were accepted after July 1.

The Indiana General Assembly this year sought to increase the dollar threshold at which common construction wages must be paid, raising it from $150,000 for 2011 to $250,000 next year and $350,000 in 2013. Indiana's Common Construction Wage Act establishes labor rates in construction projects contracted by state and local government.

Because of an error in one of the bill's amendments, the act doesn't contain a dollar-value threshold for the six-month period from July 1 through Dec. 31, 2011. That means most state and local public construction contracts awarded after July 1 must pay according to the common wage scale, regardless of the cost of construction, according to a letter from the Indiana Department of Labor.

The commissioners said Monday they're unsure if drainage work qualifies as construction, so they'll seek an opinion from the county attorney.

For more on the error and its ramifications, see this ILB entry from June 9, 2011, and this one from June 16, 2011.

Posted by Marcia Oddi on Thursday, August 18, 2011
Posted to Indiana Courts | Indiana Government | Indiana Law

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

For publication opinions today (1):

In The Kroger Company, et al. v. Plan Commission of the Town of Plainfield, Indiana, a 13-page ruling, Judge Bradford writes:

Appellants-Petitioners The Kroger Company and Kroger Limited Partnership I (collectively “Kroger”) appeal the trial court's order granting summary judgment in favor of Appellee-Respondent Plan Commission of the Town of Plainfield (“Plan Commission”). Concluding that the Town of Plainfield Zoning Ordinance (“Plainfield Zoning Ordinance”) meets the specificity requirement of the Zoning Enabling Act but that the Plan Commission's findings are not sufficient to support the denial of Kroger's Plan Approval Petition (“Petition”), we reverse and remand to the trial court for further proceedings consistent with this opinion. * * *

Upon remand, we instruct the trial court to remand the instant matter to the Plan Commission to allow the Plan Commission the opportunity to amend, if possible, the issued findings to provide sufficient specificity to explain how Kroger's Petition failed to meet the requirements of the Plainfield Zoning Ordinance so that Kroger may have the opportunity to attempt to amend its Petition to comply with the Ordinance. However, we note that the Plan Commission must refrain from issuing any additional unrelated findings. See id. (providing that a plan commission may not raise asserted defects in a piecemeal fashion). In addition, we remind the Plan Commission that approval of a petition that meets the requirements of the Plainfield Zoning Ordinance constitutes a ministerial as opposed to a discretionary act. See id. at 1148. Therefore, if the Plan Commission is unable to amend its findings to explain with specificity how Kroger's Petition failed to meet the requirements of the Plainfield Zoning Ordinance, the Plan Commission should grant Kroger's Petition.

NFP civil opinions today (1):

Company v. Review Board (NFP) is notable for its concurring opinion:

ROBB, Chief Judge, concurring
I concur fully in the resolution of the merits of this case, but for the reasons stated in Moore v. Review Bd., No. 93A02-1005-EX-529, slip op. at 5-8 (Ind. Ct. App., Aug. 12, 2011), I would identify the employer and employee in this case by full name rather than by generic descriptors.
NFP criminal opinions today (0):

Posted by Marcia Oddi on Thursday, August 18, 2011
Posted to Ind. App.Ct. Decisions

Wednesday, August 17, 2011

Ind. Gov't. - Even more on "Starke County commissioners remove treasurer from office"

Having read and posted links to a number of stories now on the Starke County treasurer issue, I'd venture to observe that there are a number of conflicting "facts" between the various news reports ...

This evening Terry Turner of the Gary Post-Tribune has this report that begins:

KNOX — Embattled Starke County Clerk Linda Belork has hired the law firm of Blachly Tabor Bozik & Hartman of Valparaiso to defend herself against the temporary restraining order the County Commissioners secured that removed her from office last week.

Ethan Lowe, representing the law firm, made an appearance before Magistrate Jeanne Calabrese Tuesday and requested a change of venue in the case. That petition delayed a hearing on her removal that was scheduled to be heard on Friday.

County Attorney Martin Lucas said Wednesday the commissioners moved to remove Belork from office after the commissioners and he discussed the process with state legal representatives and received opinions and advice from the State Board of Accounts.

The story concludes:
The [Starke County] council also would like the Democratic Party to caucus with precinct committemen soon to elect a new county treasurer.

Posted by Marcia Oddi on Wednesday, August 17, 2011
Posted to Indiana Government

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

In Lisa Hicks v. Avery Drei, LLC (SD Ind., Magnus-Stinson), an 18-page opinion, Judge Kanne writes:

Lisa Hicks worked for Chance Felling and his hotel management company, Avery Drei, LLC, as a security guard and then as a desk clerk during the construction and operation of a new hotel in the Indianapolis area. After being terminated from her job as a desk clerk, Hicks sued Felling and Avery Drei (the “Defendants”) seeking unpaid wages, overtime pay, and accrued vacation pay. The district court granted the Defendants’ motion for judgment as a matter of law on Hicks’s vacation pay claim and a portion of their similar motion on her overtime pay claim. The jury returned a verdict in the Defendants’ favor on the remaining portion of her overtime wages claim. Hicks appeals, challenging both the district court’s denial of her pretrial motion to prevent the Defendants’ introduction of belated evidence of cash payments and its interpretations of the law in granting the judgments as a matter of law. We affirm. * * *

CUDAHY, Circuit Judge, concurring in part and concurring in the judgment. * * *

Posted by Marcia Oddi on Wednesday, August 17, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

For publication opinions today (4):

In Amy Gulbranson v. State of Indiana , a 6-page opinion, Judge Bradford concludes:

Gulbranson claims that the evidence is insufficient to sustain her conviction for Class C felony assisting a criminal because the State failed to prove that either Smallwood or Kindred has been convicted of committing a Class A felony. In support, Gulbranson relies on the Indiana Supreme Court’s opinions in McCarty v. State, 44 Ind. 214 (1873) and McKnight v. State, 658 N.E.2d 559 (1995), as well as this court’s conclusion in Myers v. State, 765 N.E.2d 663 (Ind. Ct. App. 2002). Gulbranson’s claim, however, is misplaced because the current version of Indiana Code section 35-44-3-2, which was in effect at the time Gulbranson assisted Smallwood and Kindred, no longer requires the State to prove that the assisted person has been prosecuted for and convicted of a Class A felony.2 See Indiana Code § 35-44-3-2(b) (providing that it is not a defense to a prosecution under this section that the person assisted: (1) has not been prosecuted for the offense; or (2) has not been convicted of the offense). As such, Gulbranson’s reliance on authority interpreting prior versions of Indiana Code section 35-44-3-2 is misplaced, and Gulbranson’s claim is this regard must fail.
In C.S. v. State of Indiana , a 5-page opinion, Judge Kirsch writes:
C.S. appeals his juvenile adjudication as a delinquent child for violating the compulsory school attendance law (“attendance law”), a status offense, contending that the evidence was insufficient to support the adjudication. We reverse. * * *

The evidence in the record before us shows that, during the fall of 2010, C.S. without excuse was absent for one full school day, missed at least part of five additional class periods, and was tardy twelve times. C.S.’s mother was cooperative with the school when told about his attendance issues and took disciplinary actions at home. Thereafter, C.S. was no longer absent or tardy. Without more, we find that there is insufficient evidence that C.S. is in need of care, treatment, or rehabilitation, a required element in order to be adjudicated as a delinquent in violation of the attendance law. Therefore, we conclude that insufficient evidence was presented to support C.S.’s adjudication as a delinquent child. Reversed.

In Randall Thomas Ford v. Debra Ann Ford , a 13-page opinion, Judge Mathias writes:
Randall Thomas Ford (“Randall”) challenges the Brown Circuit Court's order determining that funds in Randall's employer-funded health benefit account constitute a marital asset subject to equal division in the marital dissolution action filed by Debra Ann Ford (“Debra”). On appeal, Randall claims that his interest in the employer-funded account was not vested and was therefore not subject to division as a marital asset. We affirm the trial court's conclusion that the benefit plan constitutes a marital asset subject to division, but we reverse the trial court's judgment regarding valuation of the account.
In Outboard Boating Club of Evansville, Inc. v. Indiana State Dept. of Health , a 12-page opinion, Judge Mathias writes:
Outboard Boating Club of Evansville (“Outboard”) and Small-Craft Boaters, Inc. (“Small-Craft”) (collectively, “the Clubs”) filed an action for declaratory judgment in Vanderburgh Circuit Court against the Indiana State Department of Health (“the ISDH”). The trial court subsequently granted the ISDH’s motion to dismiss for lack of subject matter jurisdiction. The Clubs appeal and argue that the trial court did have subject matter jurisdiction. Concluding that the trial court lacked subject matter jurisdiction due to the Clubs’ failure to exhaust administrative remedies, we affirm. * * *

Here, the Clubs argue that they were not required to exhaust administrative remedies before filing their declaratory judgment action because they are challenging the ISDH’s jurisdiction to regulate their facilities. In advancing their argument, the Clubs rely solely on our supreme court’s decision in Twin Eagle. * * *

Here, unlike in Twin Eagle, there is no abstract question of law presented regarding the ISDH’s general authority to regulate Indiana campgrounds. Rather, the Clubs argue that the particular facilities at issue are not subject to the ISDH’s regulatory jurisdiction over campgrounds. This question of jurisdiction over a particular site is precisely the the type of fact sensitive issue the Twin Eagle court concluded should be resolved in the first instance by the administrative agency.

NFP civil opinions today (6):

Tat-Yik Jarvis Ka and Amanda Beth Ka v. City of Indianapolis (NFP)

David G. Carmichael v. Candace (Carmichael) Ballard (NFP)

N.D. v. T.D. (NFP)

Beverly Jinkins v. Jet Credit Union (NFP)

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

Frontier Insurance Co. and Midwest Bonding, Inc. v. State of Indiana (NFP)

NFP criminal opinions today (4):

Joshua Farmer v. State of Indiana (NFP)

Thomas Hopkins v. State of Indiana (NFP)

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

Base Alston-Butler v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 17, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: "You can't keep a good building down": The Jefferson County Courthouse in Madison reopens

Updating this ILB entry from August 8th, WHAS11.com reports:

MADISON, Ind. -- More than two years after a three-alarm fire heavily damaged the historic Jefferson County Courthouse, a two-day rededication celebration is planned for Aug. 26 and Aug. 27.

Posted by Marcia Oddi on Wednesday, August 17, 2011
Posted to Indiana Courts

Ind. Law - "Indiana Tech defends plan for law school"

Updating a long list of earlier ILB entries on Indiana Tech's plans to open a law school in For Wayne, here is a long, comprehensive story published in the Fort Wayne Journal Gazette last week, reported by Devon Hayne. A few quotes:

“There’s no shortage of attorneys in Indiana,” said Indiana University law professor William Henderson, who writes about law school education. “We do have too many law school students.”

In addition to worrying about job prospects, some critics are worried about the kind of debt Indiana Tech students will accumulate – and what effect that debt will have on their future.

Students without other financial resources, for example, would need to take out $85,500 in loans and likely more for living expenses.

[Indiana Tech President Arthur] Snyder acknowledges it’s unlikely that Indiana Tech students will go on to earn six-figure salaries. According to the school’s own feasibility study, most beginning lawyers in Indiana can expect to make between $35,000 and $65,000.

With that salary, paying off student loans can be a challenge. * * *

Aside from facing high debt burdens and a tough job market, graduates of Indiana Tech’s law school will have to grapple with the fact that their law school hasn’t yet had a chance to build a reputation.

Henderson, at Indiana University, said the school’s first few classes of graduates will have “an uphill battle.”

“They’re an unknown brand,” he said. “They have no alumni network to rely on. There’s a little suspicion they’re not as capable as someone from an established law school.”

Something new

Snyder and Robert Wagner, chairman of the board of trustees, said they are familiar with the arguments against opening new law schools. Nevertheless, they say their plan addresses most of the concerns.

The economy may look bleak today, they say, but that won’t last forever. And not every graduate will be clamoring for the kind of legal jobs that are in short supply today. Increasingly, Wagner notes, law school graduates are taking jobs in business and other fields where law degrees are considered an asset.

Moreover, Snyder and Wagner say they plan to create a law school that will give students opportunities they wouldn’t have elsewhere.

“We don’t need another law school,” Snyder said. “We need another kind of law school.”

The school, he said, will pair students with attorney mentors, place them in internships at local law firms, and draw on other local resources to ensure students are prepared to practice as attorneys immediately after graduation. * * *

Henderson thinks the team is heading in the right direction.

“I don’t think it’s fair to heap scorn on the people starting this thing at Indiana Tech,” he said. “It creates problems for the legal profession when you have too many law schools cranking out lawyers – that’s something we’re going to have to deal with. But there’s room for improvement in legal education … It is possible to create a really terrific law school that does a better job than others.”

Snyder acknowledged that many students could leave the school with heavy debt. As a result, he said, the school will make financial aid a priority and keep tuition low.

For comparison, in-state students at Indiana University’s Maurer School of Law pay $27,040 in annual tuition – about $1,460 less than at Indiana Tech.

He also said the school has a responsibility to be candid with students about the kind of salaries they will earn.

“Honesty is the best policy,” he said. “Less than 1 percent (of law school graduates) get the big-firm jobs in Chicago and New York. We’ve got to be very straightforward.”

Posted by Marcia Oddi on Wednesday, August 17, 2011
Posted to Indiana Law

Ind. Gov't. - "Lake cop(s) sues to unfreeze property tax levy"

Yesterday there was this story: "Clark County Sheriff Danny Rodden has filed a lawsuit asking the courts to require Clark County government to provide him with at least $1.6 million so he can keep his department and the jail operating through the end of the year."

Today, from the other end of the State, Carole Carlson reports in the Gary Post-Tribune:

Two Lake County police officers have filed a lawsuit seeking to overturn a 2007 state-imposed tax levy freeze law imposed on Lake County because officials refused to adopt an option income tax.

Daniel Murchek, president of Lake County Police Local 72 and a deputy chief, and Officer Robert Klasner, president of Fraternal Order of Police Anton Lodge 125, are listed as plaintiffs in the suit filed Aug. 5 in Lake Superior Court. The state of Indiana and the Indiana Department of Local Government Finance are listed as defendants.

The plaintiffs may soon have company. Lake County Commissioner Gerry J. Scheub, D-Merrillville, said Tuesday he wants the commissioners and council to join the suit. He’ll propose the idea at Wednesday’s meeting, he said.

“I wanted to do this for quite awhile,” Scheub said. “We definitely want to be involved ... I think this is very winnable.”

The police officers say they are Lake County taxpayers and the complaint states the legislation that froze tax levies targeted and discriminated against Lake County in violation of the state constitution. It states the freeze has caused taxpayers and citizens “dangerous and unreasonable reduction and deprivation of essential government services ...”

Adam J. Sedia, an attorney with the Dyer firm of Rubino, Ruman, Crosmer, Smith, Sersic & Polen, filed the suit. He said the lawsuit centers on the constitutionality of the tax freeze legislation because it specifically singles out Lake County.

From the NWI Times, a story by Bill Dolan:
CROWN POINT | A high-ranking Lake County police official is suing to end a property tax levy freeze he claims has unfairly reduced local government jobs and services.

Daniel Murchek, assistant county police chief and president of the Lake County Police Association Local 72, is asking Superior Court Judge Jeffery J. Dyway to declare unconstitutional a 2007 state law he alleges is singling out Lake County for tax limitations that have resulted in dangerous reductions in essential government services.

"It's a public safety issue. We had no other choice but to file the suit and protect county residents. Many police and firefighters have had to make serious sacrifices we can no longer afford, anymore, and still preserve the safety of Lake County," Murchek said.

State legislators, who believe Lake County is too reliant on taxing property, passed a law in 2007 that has frozen the total amount of property taxes the county can collect in any one year at the amount it received four years ago.

The law has an escape clause that would unfreeze the tax levy if the county passed a local personal income tax, but county officials have refused because businesses would be exempt from such an income tax.

Lake is the only one county in the state without a local income tax. * * *

Ray Szarmach, an attorney for the County Council, said his fiscal body still is considering a suit against the freeze on grounds it is illegal special legislation.

Sources within county government said even a victory by Murchek wouldn't overcome millions of dollars in lost property tax revenues caused by a new amendment to the state constitution capping how much individual property owners can be taxed each year.

Posted by Marcia Oddi on Wednesday, August 17, 2011
Posted to Indiana Government

Ind. Courts - "Corydon attorney arrested for manufacturing meth"

Matt Thacker reports in the New Albany News & Tribune:

CORYDON — A Corydon attorney was arrested early Tuesday morning accused of manufacturing methamphetamine, according to jail records.

Leah Fink, 47, and Jeremy Ripperdan, 40, were arrested by the Harrison County Sheriff’s Department after police found a meth lab at their residence on East Ridge Road. * * *

Fink, who had an office at 209 N. Capitol Ave., primarily practiced in Harrison County where she has worked as a public defender. She has been involved in high-profile cases, including murder cases. She has also appeared in dozens of cases in Floyd County, both criminal and civil.

According to the Indiana Supreme Court’s roll of attorneys, Fink was admitted to practice in 1991. She has had no disciplinary action through the Supreme Court and is in good standing.

Grace Schneider reports in the Louisville Courier Journal:
Corydon lawyer Leah Fink was arrested early Tuesday after police raided her family’s Corydon home and found a meth lab and marijuana, Harrison County Sheriff Rod Seelye said. * * *

Police began investigating Fink about two months ago, Seelye said, declining to elaborate on what led them to open the probe. The investigation is continuing, and more arrests may follow, he said.

Shortly after 3:15 a.m. Tuesday, Washington Circuit Judge Frank Newkirk Jr. signed a warrant allowing police to search the two-story home in the 500 block of Eastridge Road owned by Fink’s mother for evidence of possession, manufacturing and selling meth and other controlled substances.

The search warrant also permitted officers to seize cash, checks, cell phones and any documents connected to the operation.

Seelye said deputies immediately found drugs and other evidence of manufacturing. So they took Fink and Ripperdan into custody and summoned the Indiana State Police clandestine unit. Those officers spent several hours at the scene removing the chemicals and other parts of the meth labs, he said.

The sheriff expressed sympathy for Fink, who comes from a respected Harrison family. “Miss Fink has an addiction issue. She comes from a good family,” Seelye said, adding that “this just points out how powerful these drugs can be.”

Fink worked nearly two decades as a defense lawyer in Harrison and Floyd county, and also served several years as a public defender in Harrison Superior Court. She made an unsuccessful bid in the 2008 Democratic primary for Harrison Superior Court judge, garnering 39 percent of the vote in a loss to Judge Roger Davis.

Eight yers ago, she was president of a board of directors that led a drive to round up funds and build Corydon’s first halfway house to help men recovering from drug and alcohol addiction.

Posted by Marcia Oddi on Wednesday, August 17, 2011
Posted to Indiana Courts

Tuesday, August 16, 2011

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

This is an opinion about phone "cramming" and Indiana law, and affirms the district court decision. See particularly discussion of cramming and Indiana statutory authority at pp. 8-12.

In Lady Di's Inc. v. Enhanced Services Billing (SD Ind., Barker), a 23-page opinion, Judge Hamilton writes:

Plaintiff Lady Di’s, Inc. alleged in this proposed class action that defendants Enhanced Services Billing, Inc. (“ESBI”) and ILD Telecommunications, Inc. are billing aggregators engaged in “cramming” by placing unauthorized charges on customers’ telephone bills. The plaintiff alleged that the defendants arranged to have unauthorized charges placed on its telephone bill and, in the six years before this suit was filed, have been responsible for unauthorized charges being placed on the telephone bills of more than one million Indiana telephone numbers. The complaint alleged that plaintiff “never requested, authorized, or even knew about” the services for which defendants charged it. The evidence, however, turned out differently. Both defendants produced evidence proving that the plaintiff actually ordered the services in question.

Despite that evidence, plaintiff has pursued the case, arguing that although it actually ordered the services, the charges were never properly authorized. The plaintiff’s case now hinges on its theory that, even if a customer has actually ordered and benefitted from a service, the service was not legally authorized if the defendants did not possess all the customer authorization documentation required by the Indiana anti-cramming regulation, 170 IAC § 7-1.1-19(p). Indiana’s anti-cramming regulation does not provide a private right of action, but the plaintiff argues that the defendants’ failure to comply proves, without more, common law unjust enrichment, so that potential class members are entitled to a refund for all services for which defendants charged them. The plaintiff also argues that the defendants’ failure to comply with the regulation proves a claim for damages under Indiana’s Deceptive Commercial Solicitation Act, Ind. Code § 24-5-19-9.

The district court denied the plaintiff’s request for class certification and granted the defendants’ motions for summary judgment on the unjust enrichment and statutory deception claims. Lady Di’s, Inc. v. Enhanced Services Billing, Inc., 2010 WL 4751659 (S.D. Ind. Nov. 16, 2010). We affirm the district court’s judgment, though we follow a somewhat different path to that end. Turning first to the merits, we conclude that the Indiana anticramming regulation does not apply to these defendants because they are not telephone companies and did not act in this case as billing agents for telephone companies. Second, we find that there was no unjust enrichment where the plaintiff ordered and received the services in question. Third, we find that the Deceptive Commercial Solicitation Act does not apply because the plaintiff had actually ordered the services for which it was charged. Finally, because we reject plaintiff’s theory of the case, premised solely on the defendants’ common violation of the Indiana anti-cramming regulation, we affirm the district court’s denial of class certification because common issues do not predominate over individual issues, as required for a class under Federal Rule of Civil Procedure 23(b)(3).

Posted by Marcia Oddi on Tuesday, August 16, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)

For publication opinions today (2):

In Murat Temple Association, Inc. (MTA) v. Live Nation Worldwide, et al., a 12-page opinion, Sr. Judge Garrard writes:

MTA argues that in the absence of a provision explicitly granting Live Nation the power to rename the Leased Premises, a reading of the Lease that allows Live Nation to sell naming rights to a third party is, in essence, based on an implied covenant in fact. We disagree. Unless otherwise agreed to or specifically reserved, everything which belongs to the demised premises in a lease or is used with and is appurtenant to the premises, and which is reasonably necessary to their beneficial use and enjoyment, will be considered as incident to the premises. Section 1.01 explicitly grants Live Nation “any and all rights” MTA may have as to the 1909 Theatre Building and the 1922 Mosque Building. The Lease employs clear and unambiguous language. There is no need to imply a covenant in fact in this case.
In Gordon B. Dempsey v. Dept. of Metropolitan Development, a 9-page opinion in a pro se appeal, Judge Baker writes:
A property owner paid a penalty that was imposed by the Department of Metropolitan Development of the City of Indianapolis (DMD) under the Unsafe Building Law while an appeal was pending that avoided a tax sale. The trial court determined that the case was moot and granted the DMD’s motion to dismiss the appeal. We hold that the case was not rendered moot merely because the homeowner voluntarily paid the fines and penalties to avoid the tax sale.

Appellant-petitioner Gordon B. Dempsey appeals the grant of appellee-respondent DMD’s motion to dismiss an appeal that Dempsey brought in the trial court. Dempsey argues that the trial court erred in granting the DMD’s motion to dismiss the appeal as moot merely because he paid a fine under protest to avert a tax sale.

We conclude that Dempsey’s appeal is not moot merely because he paid the fine under protest. Thus, we reverse the trial court’s dismissal of Dempsey’s appeal and remand this cause to the trial court with instructions that it determine whether a fine was warranted.

NFP civil opinions today (2):

Michael S. Fahlbeck v. Bryan Bucklen, et al. (NFP)

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

NFP criminal opinions today (10):

Kurt St. Angelo v. State of Indiana (NFP)

Winfred Jefferson v. State of Indiana (NFP)

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

Jose Cruz v. State of Indiana (NFP)

Steven Young v. State of Indiana (NFP)

Cartier D. Tasby v. State of Indiana (NFP)

Kenny Mong v. State of Indiana (NFP)

Purl Robert Silk III v. State of Indiana (NFP)

Johnny Doe Olinger v. State of Indiana (NFP)

Harrion Dixon v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 16, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - "Baker & Daniels possible merger part of a larger legal trend"

Updating this ILB entry from August 12th, here are some interesting quotes from Marilyn Odendahl's story today in the Elkhart Truth:

If the Indianapolis-headquartered law firm does merge with Faegre & Benson, the combined entity would be among the 100 largest firms in the country with a large geographic footprint and a deep well of legal expertise, said William Henderson, professor of law and director of the Center on the Global Legal Profession at Indiana University, Bloomington. It would then be able to compete against other national firms for the sophisticated legal work from larger clients.

"In a few years, it would be interesting to see if the strategy really pays off," Henderson said, noting he thinks it will be successful.

Even before the recession began, demand for legal services has been gradually shifting as corporations across the country try to control their expenses, Henderson said. Consequently attorneys are having to jostle with each other - something they have not had to do in the past - to get a piece of the market.

On the whole, the need for legal services continues to increase, Henderson said, but the supply of sophisticated legal work like major mergers, regulatory compliance and securities litigation, has actually been static. And to get a slice of that sophisticated pie, regional firms have to become national firms or they will get squeezed out of the competition.

A merger between Baker & Daniels and Faegre & Benson would place the resulting attorney group on the same level as firms in Washington, D.C., New York and Los Angeles, Henderson said. Moreover, its Midwestern roots might give it an edge since the middle section of the country has a reputation of being practical, cost conscious and industrious.

However, a merger probably will not reduce the overhead the two firms currently have which could create opportunities for smaller shops, Henderson said. If the Baker & Daniels/Faegre & Benson firm raises its rates, local clients may bulk and go elsewhere for legal counsel.

The combined operation would have more than 800 attorneys and consultants and would have offices in Indiana, Chicago, Minnesota, Colorado, Iowa, London, Shanghai and Beijing.

Posted by Marcia Oddi on Tuesday, August 16, 2011
Posted to Indiana Law

About this Blog - Thanks to ILB supporters; and how you too can become one!

Repeating this entry from last Wednesday ....

I'm pleased to announce that the backbone of the ILB's support, the Indiana State Bar Association, along with Doxpop and the ISBA Litigation Section, have all committed to support the ILB for another year.

In addition, this quarter the ILB gained another law firm/individual lawyer supporter AND all of the existing supporters renewed for another year.

Here is the newly updated list:

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

What if you'd prefer to send an anonymous individual donation (i.e. not be identified on the ILB) from time to time, rather than making an annual commitment? A handful of you already have done that, and I really appreciate the support. To do so, simply make your check out to Environmental Information Solutions (or Marcia Oddi) and mail it to 1319 N. Alabama St., Indianapolis 46202-2523. [Sorry, we are not 501(c)(3).] Include your email if you'd like an acknowledgment of receipt and a thanks. Thanks to those of you who have elected to send the ILB a donation in this way. No amount is too small, or of course, too large.

Finally, I want again to express my thanks to all of you who have become supporters of the ILB. Without your help, there would be no ILB!

Posted by Marcia Oddi on Tuesday, August 16, 2011
Posted to About the Indiana Law Blog

Ind. Gov't. - Clark County sheriff files "mandate" suit against county for funding

Ben Zion Hershberg has the story in the Louisville Courier Journal. Some quotes from the long story:

Clark County Sheriff Danny Rodden has filed a lawsuit asking the courts to require Clark County government to provide him with at least $1.6 million so he can keep his department and the jail operating through the end of the year.

“This is not something I wanted to do,” Rodden said in an interview Monday afternoon. “There is just nothing else there.”

County Council President Kevin Vissing said he has heard about the sheriff’s lawsuit against the council and county commissioners, and he understands why Rodden took such a step.

“He’s got a job to do,” Vissing said. But the council, which controls most purse strings of county government, doesn’t have a source of funds with which to help the sheriff, Vissing said.

The lawsuit, Vissing said, “is a way to get more revenue.”

Clark County Circuit Court has scheduled an emergency hearing on Rodden’s lawsuit for 3 p.m. Wednesday.

If the courts order funding for Rodden, the council would be required to impose a special, one-year increase in property taxes to make the payment, since other sources of funding aren’t available.

Clark County government has been struggling with a fiscal crisis since last year, and last week the council asked all county departments to file budget plans explaining how they will comply with cuts the council made in March averaging about 10 percent for most departments. * * *

If his lawsuit results in a special property tax ordered by the courts, it could be imposed even if it exceeds state limits on property-tax increases. The county could then negotiate a short-term loan to fund the sheriff’s department that would be paid off when the taxes are collected.

The Clark County Council recently agreed to provide $1.3 million to the county courts after the judges filed a lawsuit similar to Rodden’s.

Posted by Marcia Oddi on Tuesday, August 16, 2011
Posted to Indiana Government

Ind. Courts - "Indiana welfare clients to get their day in court"

The Supreme Court's grant of transfer on July 19, 2011 in the case of Sheila Perdue, et al. v. Anne W. Murphy, et al. is the focus of an approving editorial today in the South Bend Tribune.

Recall that the Court of Appeals in that case reversed the trial court's summary judgment in favor of the FSSA. See ILB entry from July 26, 2011. See also this entry from Dec. 4, 2010, and its links to the trial court opinion.

Posted by Marcia Oddi on Tuesday, August 16, 2011
Posted to Indiana Transfer Lists

Courts - "Special prosecutor named to investigate the case of two Wisconsin Supreme Court justices fighting in chambers"

Reid J. Epstein has the story today in Politco. Some quotes:

[Sauk County District Attorney Patricia Barrett, who is not seeking re-election next year] was named as special prosecutor because officials in Dane County, which includes Madison, the state capital, determined they could not look into the incident in an impartial way.

The Dane County sheriff was a campaign contributor and appeared in TV ads for the state high court’s chief justice, about whom Prosser and Bradley [Justices David Prosser and Ann Walsh Bradley] were arguing, and the Dane County district attorney, a Democrat, brought the case that was at the center of their disagreement. Sauk County borders Dane County to its northwest.

“Politics should play no role in what we do,” Barrett told the Journal Sentinel.

Here is the expanded story, with photos, from the Milwaukee Journal Sentinel.

Posted by Marcia Oddi on Tuesday, August 16, 2011
Posted to Courts in general

Ind. Courts - "Cost of capital cases doesn't add up to the price paid by victims"

That is the headline to this editorial today in the Evansville Courier & Press:

Less than a week after a Courier & Press special report showed that trying death penalty cases remains an expensive and inconsistent process in Indiana, an Evansville man sentenced to death has seen his sentence reduced to life without parole. [See ILB entry here from August 7th.]

Daniel Ray Wilkes was convicted of the horrid 2006 murders of an Evansville woman and her two daughters and was sentenced to death by Vanderburgh County Circuit Court Judge Carl Heldt after the jury deadlocked over the punishment.

However, Heldt said last week in reducing the sentence that a change in state law now allows him to consider information that he was barred from considering when he first sentenced Wilkes to death. That new information, which came out in an appeals hearing, is that the jurors stood deadlocked at 11-1 in favor of life without parole when they reported to him that they could not reach a unanimous decision. [See ILB entry here from August 14th.]

On appeal, the Indiana Supreme Court upheld Wilkes' death sentence, but ruled as well that the trial judge could now consider the jury's vote. On that basis, Heldt reduced the sentence.

The rub for many Hoosiers is that trying and appealing death penalty cases is extremely expensive, but with inconsistent results. Because of the stakes involved, defense attorneys are given great latitude in seeking costly resources to defend their clients. In that special report, Courier & Press staff writer Mark Wilson quoted prosecutors as saying that judges are reluctant to turn down requests for defense resources, lest they risk verdicts being reversed on appeal.

Consequently, prosecutors in some smaller counties shy away from seeking the death penalty, even in heinous cases, because of the costs. Instead, they choose to seek life without parole. That's where the inconsistency comes in. The county where a murder is committed may ultimately prove to be the determining factor as to whether a defendant faces life in prison or death. That's why some refer to capital punishment in Indiana as a lottery.

In Wilkes' case, public defenders spent $515,729 for his capital trial and his sentencing hearing. In addition, another $125,416 has been spent on his appeal. It would have likely cost hundreds of thousands less had prosecutors sought life without parole. Wilson's August 7 special report told us that in Indiana, the average death penalty trial and appeal costs more than $450,000 while the average cost of a life without parole trial averages $42,658.

Posted by Marcia Oddi on Tuesday, August 16, 2011
Posted to Indiana Courts

Monday, August 15, 2011

Ind. Decisions - Marion County court denies school voucher injunction [Updated]

Marion Superior Court Judge Michael D. Keele denies plaintiff's motion for a preliminary injunction, concluding at para. #31 that "plaintiffs have failed to demonstrate any likelihood of success on the merits."

Here is the 14-page ruling in Meredith v. Daniels.

[More] Here is the AP report so far, from Ken Kusmer, headed "Judge denies request to block Indiana voucher program."

[Updated 8/16/11]
See this story, "Voucher law clears first court hurdle," by Megan Banta in The Franklin Online.

"Judge tosses bid to block voucher law," is the heading to this story in the Fort Wayne Journal Gazette, reported by Niki Kelly.

Posted by Marcia Oddi on Monday, August 15, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Charlie White trial postposed again

Carrie Ritchie of the IndyStar has the story - some quotes:

Secretary of State Charlie White's criminal trial has been postponed again.

It will now begin Jan. 30, White's attorney, Carl Brizzi, confirmed this morning after a telephone conference with a Hamilton County judge and prosecutors. * * *

His trial had been scheduled for Aug. 8 but was pushed back to Sept. 12.

The latest delay comes days after Brizzi, the former Marion County prosecutor, took over the case. * * *

Just two weeks ago, Brizzi joined the case and released a statement saying he and attorney Dennis Zahn, who had been representing White, would work together as co-counsels. But last week, Zahn asked to withdraw his appearance.

Brizzi said he's unsure why Zahn left the case, and Zahn could not be reached for comment.

Posted by Marcia Oddi on Monday, August 15, 2011
Posted to Indiana Courts

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

In Gomez and Wagner-Barnett v. St. Vincent Heath (SD Ind., Barker), a 22-page opinion, Judge Kanne writes:

When Blanca Gomez and Joan Wagner-Barnett left their jobs with St. Vincent Health, Inc. (the “Company”), they did not receive notices describing how to extend their health insurance coverage within the period prescribed by statute. Responding to a solicitation from a lawyer, Barnett and Gomez became the named plaintiffs in a proposed class action seeking damages from and statutory penalties against the Company for its violation of the notice provisions. The district court declined to certify the class, however, having found the proposed class counsel to be inadequate for the purposes of class representation. It then considered the named plaintiffs’ individual claims on cross-motions for summary judgment. The district court denied their request for statutory penalties against the Company and Gomez’s request for damages, but it awarded damages to Barnett. Barnett and Gomez now appeal the district court’s decisions not to certify the class and not to award statutory penalties, and Barnett appeals the amount of damages the district court awarded her. We affirm.

Posted by Marcia Oddi on Monday, August 15, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In T.W. v. State of Indiana , an 11-page opinion, Judge Barnes writes:

T.W. appeals the trial court's order requiring him to register as a sex offender for ten years. We affirm.

The restated issues before us are:
I. whether the trial court had subject matter jurisdiction to order T.W. to register as a sex offender; and
II. whether the trial court properly allowed two psychologists to testify at the hearing to determine whether T.W. should register as a sex offender. * * *

Indiana Code Section 11-8-8-4.5(b)(2) provides that “a court” may make a finding that a juvenile should be placed on the sex offender registry, if the criteria of that statute are met. Although the sex offender registry statutes are not part of the Juvenile Code, it is logical to assume that the General Assembly intended courts with juvenile jurisdiction to also have subject matter jurisdiction to make a sex offender registry finding. T.W. makes no argument that it violates either the United States or Indiana Constitutions to require him to register as a sex offender. In the absence of any constitutional constraints, it was entirely with the General Assembly's prerogative to grant Indiana courts the subject matter jurisdiction to enter orders requiring certain juveniles to register as sex offenders. T.W.'s contrary argument is unavailing. * * *

It is apparent that the first five exceptions to this statutory psychologist-patient privilege [IC 25-33-1-17] do not apply here. The question is whether the sixth, “catch all” exception applies.

We conclude that it does. We note that when a trial court is tasked with deciding whether a juvenile qualifies as a “sex offender” for purposes of the sex offender registry, “the court shall consider expert testimony concerning whether a child is likely to repeat an act that would be an offense described in subsection (a) if committed by an adult.” I.C. § 11-8-8-4.5(c) (emphasis added). It would be impossible for a trial court to carry out this statutory mandate if it could not, because of the statutory psychologist-patient privilege, receive testimony from psychologists or other mental health experts who have examined the juvenile. * * *

The trial court had subject matter jurisdiction to find that T.W. is required to register as a sex offender, and it did not abuse its discretion in overruling T.W.'s objections to the testimony of Flores and Lange. We affirm.

NFP civil opinions today (1):

In The Education Resources Institute v. Douglas L. Krasnoff (NFP), an 11-page opinion, Judge Bailey writes:

The Education Resources Institute (“TERI”) sued Douglas L. Krasnoff (“Krasnoff”), alleging that Krasnoff failed to pay a debt he owed to TERI. At a bench trial, TERI sought admission into evidence of an affidavit of counsel and a settlement agreement to establish Krasnoff's liability for the debt and to enforce the settlement agreement. The trial court denied admission of either document into evidence, TERI rested its evidence, and Krasnoff moved for involuntary dismissal of the case under Indiana Trial Rule 41(B). The trial court granted the dismissal of TERI's action, and TERI now appeals. We reverse and remand.
NFP criminal opinions today (6):

Jimmy Robinson v. State of Indiana (NFP)

J.B. Whitelow v. State of Indiana (NFP)

Lee Tibbetts v. State of Indiana (NFP)

Cesar Sanchez v. State of Indiana (NFP)

Leonard E. Luna v. State of Indiana (NFP)

J.F. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 15, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Judges rule that the state's medical review panel must receive all possible claims before cases go to court, protecting doctors from endless litigation."

So reports the AMA News, in this story today by Alicia Gallegos. Some quotes:

A patient cannot add new claims against an Indiana hospital and its staff after a medical review panel has issued an opinion in the case, the Court of Appeals of Indiana has ruled.

The ruling protects health professionals in the state from endless claims once a case goes to court, said Robert Weddle, an attorney for Indianapolis-based Riley Children's Hospital, one of the defendants.

"The whole purpose of the panel is that they're supposed to screen all medical malpractice claims," he said. "Here, we had a very different claim that was never mentioned until two weeks before trial."

The ruling stems from a complaint by Michelle Campbell against hospital staff members, including two physicians and a nurse. Campbell claimed that her son, then 2, was given an intravenous overdose of Benadryl during an emergency department visit. The mother brought the toddler to the hospital in 1995 after a minor head injury, according to court documents.

The complaint went before a medical review panel in 2004. As part of the state's Medical Malpractice Act, plaintiffs must submit facts and evidence of alleged negligence to a panel of independent experts before filing a lawsuit.

The panel's opinion does not bar the plaintiff from filing a lawsuit. However, a favorable opinion for a defendant frequently dissuades plaintiffs from filing lawsuits, Weddle said. The panel's decision can be used as expert testimony by both sides in court.

In the Campbell case, the panel concluded that the hospital and nurse failed to comply with the appropriate standard of care, court records show. The two physicians and other hematology staff did not breach the standard of care, the panel found.

Campbell sued the hospital in 2007 in Marion County Superior Court. Before the trial, she outlined three more claims of alleged breaches in the standard of care, including allegations of additional medication errors.

Attorneys for the hospital said the claims should be thrown out because they never went before the review panel. Campbell said the subsequent claims were within the scope of the panel's initial review.

Indiana law does not require plaintiffs to "fully explicate and provide the particulars or legal contentions" of each claim, Campbell argued in court documents. A trial court agreed with the hospital, excluding the claims. Campbell appealed.

But in its July 13 opinion, the appeals court said Campbell did not follow the malpractice act's requirements.

"The question of whether defendants breached the standard of care must be presented to the medical review panel and answered based on the evidence submitted to it. It logically follows that a malpractice plaintiff cannot present one breach of the standard of care to the panel and, after receiving an opinion, proceed to trial and raise claims of additional, separate breaches of the standard of care that were not presented to the panel and addressed in its opinion," the court said.

The court denied two of Campbell's additional claims. A third claim was allowed because the issue was within the scope of the panel's previous review, the court said.

Attorneys for Campbell are asking the Indiana Supreme Court to review the decision, said Tina Bell, an attorney for Campbell. She declined to comment on the ruling. * * *

Some plaintiff attorneys, however, are unhappy with the ruling, saying it changes the way lawyers must present their cases. In a July 29 posting on the "Indiana Lawyer Medical Malpractice Blog," Indiana law firm Garau Germano Hanley & Pennington wrote: The Campbell decision "places the burden on lay attorneys and their clients to tell the panel what breaches of the standard of care arise from the facts of the case, rather than rely on the panel to tell them where the breaches are ... In order to avoid the risk of waiving a claim of negligence, lawyers for the patients will now be forced to conduct full discovery at the panel process stage."

Here is the July 13, 2011 COA opinion in Campbell v. Chambers.

Posted by Marcia Oddi on Monday, August 15, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - Several items on sentencing reform

Following on the ILB's most recent entry on sentencing reform efforts, from August 13th, here are three new items:

Posted by Marcia Oddi on Monday, August 15, 2011
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending August 12, 2011

The word is there will be no transfer list issued for the week ending August 12, 2011.

Posted by Marcia Oddi on Monday, August 15, 2011
Posted to Indiana Transfer Lists

Environment - Reminder: 2011 Edition of Indiana Environmental Statutes now available!

This is the new, 2011 edition of the annual publication, the Indiana Environmental Statutes, sponsored by the Environmental Law Section of the Indiana State Bar Association, that I edit and publish each year.

The 2011 General Assembly made many changes to the environmental laws!

It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.

This year the soft-bound volume is 570 pp. and costs $30.00 plus shipping (note that shipping is less if you pool orders).

Order online (a preview of several pages also is provided at this link).

Posted by Marcia Oddi on Monday, August 15, 2011
Posted to Indiana Law

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

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

From Sunday, August 14, 2011:

From Saturday, August 13th, 2011:

From late Friday, August 12th, 2011:

Posted by Marcia Oddi on Monday, August 15, 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 8/15/11):

Next week's oral arguments before the Supreme Court (week of 8/22/11):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 8/15/11):

Tuesday, August 16th

Next week's oral arguments before the Court of Appeals (week of 8/22/11):

Next Wednesday, August 24th

Next Thursday, August 25th

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

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


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

Posted by Marcia Oddi on Monday, August 15, 2011
Posted to Upcoming Oral Arguments

Sunday, August 14, 2011

Ind. Courts - "Daniel Ray Wilkes's death sentence reduced to life without parole"

Updating a series of excellent stories about the sentencing retrial held in late June in Evansville (see ILB entries from June 22 and June 24, 2011), Evansville Courier & Press reporter Mark Wilson wrote in this story late Friday, August 12th:

EVANSVILLE — Daniel Ray Wilkes, convicted of the 2006 murders of an Evansville woman and her two children, had his death sentence reduced to life without parole on Friday.

The change was made after attorneys with the Indiana Public Defender's Office sought a retrial, modification of Wilkes' death sentence or a new sentencing hearing.

In a 50-page decision released Friday, Vanderburgh Circuit Court Judge Carl Heldt denied all of the issues raised by Wilkes' attorneys. However, he wrote that he altered Wilkes' sentence because a change in state law now broadened the factors he could consider in sentencing.

[Note: The ILB hopes to obtain and post a copy of the opinion on Monday.] [Updated 8/15/11] Here is the 50-page document.

The post conviction relief petition was a chance for state defenders to correct errors and raise issues they believed were not raised at trial.

Heldt presided over Wilkes's December 2007 trial, held in Clark County. When the jury deadlocked, with 11 jurors wanting to recommend a life sentence instead of death, state law required Heldt to decide Wilkes' punishment, but it prohibited him from considering how the jury was deadlocked when making his decision.

Heldt sentenced Wilkes to death. The Indiana Supreme Court upheld the sentence but also ruled that trial judges could also now consider the jury's indecision.*

"Had this Court had the authority to consider the jury's inability to reach a penalty recommendation at the time of its original sentencing order, it would have sentenced the defendant to life imprisonment without parole," Heldt wrote. "This court finds that the inability of a jury to recommend the death penalty is a significant consideration."

Calling the death penalty "society's ultimate criminal sanction," Heldt wrote the jury's indecision required a sentence of life without parole.

There is much more in the story.

Here is a very long list of earlier ILB entries on Daniel Ray Wilkes.
___________________
* ILB: See p. 22 of the 2009 Supreme Court opinion.

Posted by Marcia Oddi on Sunday, August 14, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Raising chickens legal in Chicago, and people are crowing about it " [Updated]

A new addition today, from a neighboring state, to the ILB's list of Indiana "chicken underground" entries -- Kara Spak of the Chicago Sun-Times has the story. Some quotes from the long story:

Despite cramped backyards, sub-par soil and the sheer improbability of starting such a project, Chicagoans are embracing the land, bringing elements of the farm into the city. Nowhere is this more dramatic than those who raise chickens, a stable of farm living that is spreading through city neighborhoods.

It’s legal to raise chickens, both hens and roosters, in Chicago. Hens are more popular because they don’t crow, and you don’t need roosters for eggs. Unlike in some suburbs, chicken owners aren’t required to register their animals, so there’s no way to get an accurate count on how many chickens call Chicago home.

There are more than 300 chicken enthusiasts in an online local chicken rearing group that started following a failed 2007 city council effort to ban city chickens. More than 200 people have taken chicken raising classes at the Chicago Urban Initiative of Angelic Organics, a non-profit that educates city residents about agriculture, since November 2008.

Martha Boyd, Program Director at the Chicago office of Angelic Organics, calls the 300 online group members the “tip of the iceberg” in terms of the numbers raising chickens in the city.

“Those are people who are speaking English, using the computer to communicate and interested in networking around this stuff,” Boyd said. “There are an awful lot of people in addition to them who keep backyard chickens because they’ve always done it and don’t care if there’s a movement.”

City chickens are as old as Chicago itself.

“There’s been animals here for (food) production the entire time there’s been people here,” said Hugh Bartling, a DePaul associate professor who teaches a class on green urban policy. There was a movement in the early 20th century in Chicago to ban chickens, Bartling said, when the city was growing and the new residents conflicted with earlier residents and their more rural lifestyles.

ILB: And "Yes!" you can raise chickens in Indianapolis, as explained in the latter part of this Sept. 15, 2009 ILB entry.

[Updated 8/15/11] A reader sends along this note:

Nap Town Chickens presents Tour de Coops 2011. Sunday, September 18 · 2:00pm - 5:00pm
Location: Parking and Registration at Broad Ripple Park's south parking lot near the dog park, 1550 Broad Ripple Ave.

Similar to the Meridian-Kessler Home Tour, just with chicken shacks instead of million dollar homes. Tourists are encouraged to ride their bikes from coop to coop, as they are all within the Broad Ripple/Meridian-Kessler/Bu​tler- Tarkington/Rocky Ripple area but cars are still welcome. Learn how much fun urban chicken farming can be while spending an afternoon on a bicycle. There is a $5/person donation and all proceeds benefit Keep Indianapolis Beautiful and IndyCog, a local bicycle advocacy group.

Posted by Marcia Oddi on Sunday, August 14, 2011
Posted to Indiana Government

Law - "Why hospital bills remain a big mystery: A dense thicket of medical, insurance variables makes it difficult to get a cost estimate for a surgery or procedure"

The ILB posted August 2nd on an upcoming oral argument on hospital charges for uninsured patients. The argument took place before the Court of Appeals on August 3rd; you can watch the video here.

Although not exactly on point, I was reminded of the case today when I saw this long story by Thomas B. Langhorne in the Evansville Courier & Press on the difficulties of finding out and comparing health care costs. Here is just a sample from the story:

State law does not require hospitals and insurers to disclose the varying prices they negotiate with each other. Representatives of Evansville's two major hospital systems said those contracts typically require that prices remain confidential, a feature each said is requested by insurers.

"And why do they? Do you think that Walmart pays Proctor & Gamble the same price when they buy the soap to put on their shelf that Target pays?" said Tim Flesch, president and CEO of St. Mary's Health System.

"Do they pay the same price as Kroger or any of the other people who offer that same product? I'd hazard a guess that no. Can Kroger go to any website and see what Walmart buys, what Walmart pays? No. And why? Because it's confidential," Flesch said.

"Why wouldn't Walmart tell you what they're buying the soap for? Because they'd be disclosing their price to everybody else, to all their competitors."

That kind of transparency in health care pricing — down to the last penny, no exceptions — is exactly what former U.S. Rep. Steve Kagen, D-Wis., said is needed to establish a competitive medical marketplace.

Kagen, an allergy and asthma specialist whose family has spent seven generations in medicine, unsuccessfully pushed legislation in Congress last year to require that all health care providers and insurers disclose all prices for products, services and procedures. The prices negotiated between providers and insurers, and the differences between price quotes and settlement amounts, would be revealed on the Internet.

Only then, Kagen said, could consumers shop for health care services as they do in large, diverse segments of the economy where transparent pricing is the norm.

"The problem we have in health care is that the prices are opaque. There is no competition among insurance companies, hospitals, doctors on quality, price and service. In anything else in our country, when you're in business, you're competing on the basis of the quality of your product or service and its price," he said.

Posted by Marcia Oddi on Sunday, August 14, 2011
Posted to General Law Related

Law - "SF transit agency's cell phone shutdown: Shielding commuters or hints of Orwell?"

It the solution to "flash mobs" to shut down or block cell phone access in large venues? A long AP story today in the LA Times, by Terry Collins, begins:

SAN FRANCISCO (AP) — An illegal, Orwellian violation of free-speech rights? Or just a smart tactic to protect train passengers from rowdy would-be demonstrators during a busy evening commute?

The question resonated Saturday in San Francisco and beyond as details emerged of Bay Area Rapid Transit officials' decision to cut off underground cellphone service for a few hours at several stations Thursday. Commuters at stations from downtown to near the city's main airport were affected as BART officials sought to tactically thwart a planned protest over the recent fatal shooting of a 45-year-old man by transit police.

Two days later, the move had civil rights and legal experts questioning the agency's move, and drew backlash from one transit board member who was taken aback by the decision.

"I'm just shocked that they didn't think about the implications of this. We really don't have the right to be this type of censor," said Lynette Sweet, who serves on BART's board of directors. "In my opinion, we've let the actions of a few people affect everybody. And that's not fair."

Similar questions of censorship have arisen in recent days as Britain's government put the idea of curbing social media services on the table in response to several nights of widespread looting and violence in London and other English cities. Police claim that young criminals used Twitter and Blackberry instant messages to coordinate looting sprees in riots.

Prime Minister David Cameron said that the government, spy agencies and the communications industry are looking at whether there should be limits on the use of social media sites like Twitter and Facebook or services like BlackBerry Messenger to spread disorder. The suggestions have met with outrage — with some critics comparing Cameron to the despots ousted during the Arab Spring.

There is much more in the story.

Posted by Marcia Oddi on Sunday, August 14, 2011
Posted to General Law Related

Ind. Gov't. - "Starved State Budgets Inspire New Look at Web Gambling"

That is the headline to this NY Times story by Matt Richtel. Some quotes from the long story:

By year’s end the District of Columbia hopes to introduce an Internet gambling hub that would allow Washington residents to play blackjack, poker and other casino-style games.

“They can do it from Starbucks, a restaurant, bar or hotel, or from a private residence,” said Buddy Roogow, executive director of the D.C. Lottery, who expects the new games to eventually raise $9 million a year. “That’s real money in D.C.”

It’s an idea gaining currency around the country: virtual gambling as part of the antidote to local budget woes. The District of Columbia is the first to legalize it, while Iowa is studying it, and bills are pending in places like California and Massachusetts.

But the states may run into trouble with the Justice Department, which has been cracking down on all forms of Internet gambling. And their efforts have given rise to critics who say legalized online gambling will promote addictive wagering and lead to personal debt troubles.

The states say they will put safeguards in place to deal with the potential social ills. And they say they need the money from online play, which will supplement the taxes they already receive from gambling at horse tracks, poker houses and brick-and-mortar casinos. * * *

In the past, federal prosecutors have sent letters to a handful of states telling them that federal law prohibits “all forms” of online gambling. And in 2006, Congress passed the Unlawful Internet Gaming Enforcement Act, which prohibits businesses from taking the proceeds of illegal bets placed over the Internet.

But legal experts say the law sent a mixed message to the states. It seems to carve out an explicit exception for states to run online gambling operations. But in the bill’s legislative history, it says it is not meant to amend existing law on the subject, which can be taken to mean that the Wire Act prohibitions still apply, said Mark Hichar, a lawyer who specializes in gambling law at Edwards, Angell, Palmer & Dodge in Boston.

“The legislative history is a real head-scratcher,” Mr. Hichar said.

Arthur Terzakis, staff director of the Committee on Governmental Organization, a legislative policy committee in the California State Senate, said the 2006 law “gives states the right to do this.”

Posted by Marcia Oddi on Sunday, August 14, 2011
Posted to Indiana Government

Ind. Gov't. - Another voice 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 a series of ILB entries, ending with this one August 6th headed "Campaign gift limits violate state law, AG opinion says," J. Timothy McCaulay, identified as a Fort Wayne lawyer who served as city attorney under Mayor Paul Helmke, had this opinion piece in today's Fort Wayne Journal Gazette. Some quotes from the long column:

Much time has been wasted on seeking outside legal opinions on the legality of the proposed pay-to-play contracting restrictions.

A legal opinion is not a guarantee of the outcome of any future legal challenge to an ordinance but represents, at best, a reasoned opinion as to the probability of that outcome. The only legal opinion that counts in cases like this is the majority opinion of the last appellate court to review such a challenge.

Had this mindset (that no proposed ordinance should be discussed on its merits because of the possibility of a future legal challenge) prevailed in the past, ordinances involving annexations, restrictions on smoking in public places, and regulations of signs and billboards would never have been adopted in this city.

Posted by Marcia Oddi on Sunday, August 14, 2011
Posted to Indiana Government

Environment - More on "Purdue poised to cancel coal-fired power plant"

Updating this ILB entry from Feb. 4, 2011, the Sunday Lafayette Courier & Press has a lengthy feature by Eric Weddle, headed "Does Purdue's $4.2 million flip-flop on coal plant prove costly or save millions?" The story begins:

Purdue University's decision last February to cancel a major upgrade to its Wade Utility Plant -- a project planned for nearly 10 years -- was hailed by environmentalists who fought the project.

Purdue officials, too, claimed a victory, saying the decision to cancel was prudent given the uncertainty of clean air regulations years down the road and a decline in natural gas prices.

One side that didn't win, at least in the short haul, was taxpayers. Cancellation of the massive project came at considerable cost, records obtained by the Journal & Courier show.

Nearly $4.5 million could be the final cost for canceling the $54.5 million project that would have replaced a 51-year-old coal boiler with a new generation "clean coal" boiler.

Most of that money -- $4.2 million -- has already been spent, according to invoices. Additional close-out costs could push the total to $4.5 million officials said.

Purdue administrators say the benefits of canceling the project could easily outweigh the costs, given the regulatory and price uncertainties of coal.

Bob McMains, Purdue's vice president of physical facilities, said opposition to the boiler replacement project by the Sierra Club and Hoosier Environmental Council did not drive the decision to cancel.

"I just couldn't commit to going through with the coal boiler. We looked around, and Purdue was the only school expanding coal. Why are we the only one?" he said. "Who made these assumptions and when? We needed the kick in the pants to look at other options."

The story reports that Purdue also has now canceled plans for the natural gas-fired boiler that was planned to replace the coal plant, with an "energy master plan" expected to be unveiled in the fall.

Posted by Marcia Oddi on Sunday, August 14, 2011
Posted to Environment | Indiana Government

Saturday, August 13, 2011

Ind. Gov't. - "City parks simply no place for your firearms"

That is the heading to a letter today in the South Bend Tribune, written by Robert Goodrich and Dr. Thomas Kelly are members of the Board of Park Commissioners of the South Bend Parks and Recreation Department. The bottom line:

The Board of Park Commissioners wishes to be on record that we strenuously object to allowing firearms or any other weapons at any park or recreation facility. By this we mean that under no circumstances do we countenance any weapons on park property.
The introduction:
It is with a sense of urgency that the members of the Board of Park Commissioners of the city of South Bend feel an obligation to voice our concerns regarding a recent bill passed by the Indiana General Assembly. With all due respect for different positions regarding the Second Amendment to the Constitution of the United States, the board has serious concerns as to the possession of weapons, concealed and otherwise, at public recreation venues. Simply put, it is difficult to comprehend the reasoning behind recent legislative action.

Two questions must be answered: First, what is the purpose of public parks if not to provide safe places for the enjoyment of exercise and leisure? Second, will the possession of a deadly weapon, concealed or openly displayed, by any individual, make our public recreational facilities a safer place and provide a more enjoyable experience for adults and children?

Posted by Marcia Oddi on Saturday, August 13, 2011
Posted to Indiana Government

Environment - New Haven copper plant plans gathering opposition

Some quotes from a long story today in the Fort Wayne Journal Gazette, reported by Vivian Sade:

Some neighbors of a proposed copper wire plant in New Haven are worried that air quality will be further diminished.

Monday is the deadline to register comments about the air quality permit application for the new SDI La Farga stationary copper rod production plant in New Haven. The Indiana Department of Environmental Management will review all submissions relevant to the application before deciding on whether to grant the air quality permit.

The location of the new plant is under fire by some because neighbors have been complaining for years about the emissions from an adjacent plant, OmniSource Superior Aluminum, which is owned by the same company – Steel Dynamics Inc.

“We’ve been battling the effects of poor air quality for years with Superior Aluminum,” said Don Markley, who lives on Harper Road, just more than a mile from the site. “And no one really wants to hear what we have to say.” * * *

The proposed 85,000-square-foot factory will use recycled copper to manufacture wire rods, and company officials have said the $39 million investment will create 35 jobs.

Allen County Council members approved tax breaks on both equipment and real estate in April, and SDI officials hosted the first of two public meetings for nearby residents the following week.

According to Markley and two other neighbors, Renee and Sam Spieth, more than 200 people showed up.

Some brought photos of their homes and outbuildings – showing pitted indentations and deterioration – that they said were caused by the emissions released by Superior Aluminum over the years.

“That’s why we are so upset,” Renee Spieth said. “The meetings were slick presentations for politicians. We don’t care that there’s going to be a pond and landscaping and only one smokestack.

“We just want to know what’s coming out of that smokestack.”

Posted by Marcia Oddi on Saturday, August 13, 2011
Posted to Environment

Ind. Gov't. - Still more on "Starke County commissioners remove treasurer from office"

Updating yesterday's ILB entries (the most recent being here), here are some additional stories on the Starke County treasurer situation. These are from K99.3 WKVI FM.

The first is dated Thursday, April 11th. Some quotes:

The Commissioners held an Executive Session meeting and then Commission President Dan Bridegroom read a prepared statement to the press and public.

“As a result of an unresolved issue from 2009 State Board of Accounts Audit of the Starke County Treasurer’s Office, county officials have instituted additional safeguards on county bank accounts. The safeguards will enhance review procedures that may result in modest delays in the availability of funds for payment of county checks. Delays should not exceed 48 hours.”

Following the reading of that statement, Commissioner Kathy Norem offered a motion that all employees of the Treasurer’s Office be terminated.

Commissioner Bridegroom and police officers, led by Sheriff Oscar Cowen, went to the Treasurer’s office where an immediate termination notice was read to employee Robin Lenig. The officers then told her to collect her belongings and escorted her out the door.

The second is dated Friday, April 12th. Some quotes, although you may want to read it, and the Starke readers' comments, in full:
The Starke County Commissioners Thursday removed county treasurer Linda Belork from office. The action was taken after the commissioners received a state audit of the office in which there were a considerable number of irregularities found. The commissioners have filed a complaint for default on the surety bond and damages. The surety bond company, Ohio Casualty Insurance, and Treasurer Linda Belork are named as defendants in the suit. Commissioner Kathy Norem asked for the removal, seconded by Jennifer Davis.

“I think at this point, now that we have filed a lawsuit on her bond, in accordance with Indiana Code 36-2-10-3, I make a motion that we remove the Treasurer from her office,” said Commissioner Kathy Norem. The vote passed unanimously.

A restraining order has been placed on Belork, the deputy Robin Lenig, and a part time employee Jennifer Norem. Both of the employees were terminated. They were later identified as relatives of the treasurer. * * *

Bridegroom said the amount of money that is unaccounted for is $890,000 and said an outside accounting firm will be required to find out where the missing money is.

“I think this is as far from normal bookkeeping as you can get. We will probably end up having to hire a firm or someone to come in and go through the books. Where we began, just in a conversation with the State Board of Accounts auditor, that every transaction that has come in and gone out of that office will have to be scrutinized. Every piece of paper that has come and gone, every check, cash, everything. I have no idea to say how long that would take. It’s going to be very cumbersome, very expensive, but it has to be done,” said Bridegroom.

In support of the suit, Starke County Auditor Kay Chafins said in the affidavit that she had received credible information including the State Board of Accounts audit of the treasurer’s office for 2009, that suggests that the acts of omissions of Linda Belork have caused or allowed to occur the loss, through negligence, misfeasance, or malfeasance of substantial public funds of the county. Chafins used a figure even higher than the one Bridegroom stated saying possibly it exceeded $900,000.

Posted by Marcia Oddi on Saturday, August 13, 2011
Posted to Indiana Government

Ind. Decisions - “Not Much Good Takes Place at Slumber Parties for High School Kids, and This Case Proves the Point”

Prof. Eugene Volokh has posted this commentary on Wednesday's decision by Judge Simon in T.V. v. Smith-Green Community School Corp. (N.D. Ind. Aug. 10).

See these ILB entries from Aug. 12th and Aug. 10th.

Posted by Marcia Oddi on Saturday, August 13, 2011
Posted to Ind Fed D.Ct. Decisions

Courts - "Commentary on DOJ’s Brief in United States v. Jones: Applying the “four models of Fourth Amendment protection” to GPS tracking case."

On Friday, Prof. Orin Kerr posted this commentary on SCOTUSBlog. It begins:

The Department of Justice has recently filed its brief in United States v. Jones, the pending case on whether installing and using a GPS device to detect the location of a suspect’s car without a warrant violates the Fourth Amendment. DOJ brief’s provides an interesting example of how Fourth Amendment arguments are constructed, which gives us clues about how the Justices might approach the Jones case.

Posted by Marcia Oddi on Saturday, August 13, 2011
Posted to Courts in general

Ind. Decision - 7th Circuit rules in Taflinger suit

The 7th Circuit issued a 5-page nonprecedental order yesterday in Brooke N. Taflinger v. U.S. Swimming (SD Ind., Pratt), ruling:

The district court resolved all of the federal claims in this lawsuit and remanded the remaining state‐law claims to the Indiana court in which plaintiff Brooke Taflinger originally filed it. Defendants United States Swimming, Inc., and Westfield Washington School Corporation appeal, arguing that the district court abused its discretion by not maintaining supplemental jurisdiction over the state‐law claims. We vacate the district court’s judgment and remand.
For some background on this case, see this April 9, 2010 ABC News story.

Posted by Marcia Oddi on Saturday, August 13, 2011
Posted to Ind. (7th Cir.) Decisions

Law - Still more on: Renton Washington Police Respond To Parody Videos Investigation

Another story reporting Mr. Fiddlesticks (aka 'Mrfuddlesticks') is safe for now, this one by Jeff Hodson in yesterday's Seattle Times.

Posted by Marcia Oddi on Saturday, August 13, 2011
Posted to General Law Related

Law - "Who Needs Law Firms? Cut the Law Firms, Keep the Lawyers "

From yesterday's WSJ Law Blog:

In this WSJ story today, we look at a little-noticed phenomenon taking place in the legal industry. Many companies depend on elite law firms to train new lawyers they could bring in-house years down the road. But now, a few of them are just hiring directly from law-school campuses themselves.

Fresh law-school grads who join H-P, for instance, earn $115,000 per year, plus a $15,000 signing bonus. That salary is about $45,000 less than the salary paid to first-year associates at major New York law firms.

Pfizer Inc. recently recruited three third-year law students from Harvard Law School and Yale Law School, as part of a pilot program that it plans to repeat this fall.

“We need the services of first years and we need to train a generation of lawyers who know how to respond to what clients need,” said Amy Schulman, Pfizer’s general counsel. She says she also believes the approach will help enhance its relations with outside law firms. Pfizer pays its domestic law firms largely through flat-fee arrangements.

Law firms have long relied on reaping profits on the work of their junior attorneys, or associates. But companies increasingly are showing much less willingness to pay an army of law-firm associates at the ever-increasing hourly rates.

Vanessa O'Connell authored both the WSJ story, and the WSJ law blog entry.

Posted by Marcia Oddi on Saturday, August 13, 2011
Posted to General Law Related

Ind. Law - More on "Why do drug charges carry bigger sentences than killing? For the answer, ask your legislator"

"Trend to Lighten Harsh Sentences Catches On in Conservative States" reports Charlie Savage in the August 12th NY Times. This will update the ILB's most recent entry on the topic, from August 11th. But it is one of many -- to find them just type "sentencing" in the search box.

Today's NYT story begins:

WASHINGTON — Fanned by the financial crisis, a wave of sentencing and parole reforms is gaining force as it sweeps across the United States, reversing a trend of “tough on crime” policies that lasted for decades and drove the nation’s incarceration rate to the highest — and most costly — level in the developed world.

While liberals have long complained that harsh mandatory minimum sentences for nonviolent offenses like drug possession are unjust, the push to overhaul penal policies has been increasingly embraced by elected officials in some of the most conservative states in the country. And for a different reason: to save money.

Some early results have been dramatic. In 2007, Texas was facing a projected shortfall of about 17,000 inmate beds by 2012. But instead of building and operating new prison space, the State Legislature decided to steer nonviolent offenders into drug treatment and to expand re-entry programs designed to help recently released inmates avoid returning to custody.

As a result, the Texas prison system is now operating so far under its capacity that this month it is closing a 1,100-bed facility in Sugar Land — the first time in the state’s history that a prison has closed. Texas taxpayers have saved hundreds of millions of dollars, and the changes have coincided with the violent crime rate’s dipping to its lowest level in 30 years.

ILB: Meanwhile, Indiana remains immune to these reform efforts.

Posted by Marcia Oddi on Saturday, August 13, 2011
Posted to Indiana Law

Ind. Courts - "IMPD Officer David Bisard's trial could be delayed another year."

Deanna Dewberry of WISHTV had this story late last evening. Some quotes:

INDIANAPOLIS (WISH) - IMPD Officer David Bisard's trial could be delayed another year. That was the word Friday from Marion Superior Court Judge Grant Hawkins. The delay will allow the Indiana Court of Appeals to hear evidence in the case before it goes to trial. The process is called an interlocutory appeal.

IMPD officer David Bisard hit three motorcyclists last August, killing one of them. A blood test found that his blood alcohol level was .19. That’s more than twice the legal limit. In May of this year, Marion Superior Court Judge Grant Hawkins threw out the blood alcohol evidence in the DUI cases against Bisard because the medical technician who drew Bisard's blood did not follow protocol mandated by state law.

Prosecutors want to appeal that decision. Friday, Judge Hawkins reluctantly granted permission to appeal to the Indiana Court of Appeals. Hawkins was concerned about the number of pre-trial motions, and each could be appealed. Each appeal will further delay the trial.

"If I allow the appeal, I could lose jurisdiction of the case until the court [Indiana Court of Appeals] rules," Hawkins told the attorneys. Hawkins preferred to rule on all the pre-trial motions first, then certify appeals on all his decisions at the same time.

But state law mandates that interlocutory appeal certification occur within 30 days of the lower court's decision. Prosecutors feared that waiting to certify the appeal on the blood alcohol evidence in the DUI cases might violate state law. * * *

Asked how long it might take before Bisard goes to trial, Robinson answered, "If we get a quick ruling [from the Indiana Court of Appeals] - speaking very optimistically - we could go to trial by the early or mid part of 2012."

But defense attorneys are planning to file a motion asking that the blood alcohol evidence be thrown out in the criminal recklessness cases against Bisard as well. Hearings and appeals on that issue could further delay the trial.

Robinson told Judge Hawkins she will consult with the state attorney general's office to learn whether Judge Hawkins can proceed with a hearing on admission of the blood alcohol evidence in the criminal recklessness cases before the interlocutory appeals process is complete.

If Hawkins is able to proceed, the defense will file a motion to suppress evidence in the criminal recklessness cases on September 16th. The state will respond on October 14th, and a hearing will be held on October 27th at 1:30 p.m.

Posted by Marcia Oddi on Saturday, August 13, 2011
Posted to Indiana Courts

Friday, August 12, 2011

Ind. Law - Much more on "Baker & Daniels and Faegre & Benson Confirm Merger Talks" [Updated]

Updating this morning's ILB entry, here is a long, in-depth article on the proposed merger, from Patrick Thornton of Finance & Commerce. A few quotes:

Call it a merger or a strategic combination, it’s still a big deal.

Faegre & Benson, one of Minneapolis’ largest and oldest law firms, said Friday it is in talks to merge with the Indianapolis law firm Baker & Daniels.

The two sides could vote on the plan as early as October. If the deal goes through, the combined law firm would have about 800 attorneys in 13 offices in the U.S. and around the globe in a variety of different practice areas and business ventures.

For the Twin Cities, it would be the biggest law firm merger in memory. It comes at a time when the industry is seeing an uptick in mergers as firms battle through a slowdown that has forced some firms to cut back and others to dissolve. * * *

“They initially approached us,” [Adam Severson, the director of business development and marketing at Faegre & Benson] said Friday. * * *

Management at Baker& Daniels said Friday it is likely the firm’s name would change if the deal goes through, but Severson said it is too early to speculate about what it would be called. He said there would be no formal headquarters for the merged firm, but Minneapolis would be the largest office.

It is also unknown how the hierarchy of the combined firms would operate. Both operate as limited liability partnerships.

The proposed deal could go one of three ways, said Daniel Kleinberger, who teaches partnerships and LLCs at the William Mitchell College of Law in St. Paul.

Faegre & Benson could be merged into Baker & Daniels, or Baker & Daniels could be merged into Faegre & Benson. The firms could also create a third, separate partnership. He said that with any merger there are overlaps and questions that will arise.

[Updated 8/14/11] "Baker & Daniels may finish merger by October" is the headline to this story in today's Indianapolis Star business section, reported by Bruce Smith. It begins:
Baker & Daniels, one of the oldest and largest law firms in Indianapolis, is in merger talks with one of the largest firms in the country.

The proposed deal -- possibly one of the largest in the nation this year -- would join the 300-plus attorneys of Baker & Daniels with the 475 attorneys in Minneapolis-based Faegre and Benson, the firms confirmed. The deal could close by October.

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Indiana Law

Ind. Gov't. - COA stays trial court remedy for electioneering [Updated]

Some days the ILB doesn't know all that is going on until she reads about it in a blog located outside Indiana! Here, for instance, from Prof. Rick Hasen's Election Law blog - just posted:

New Election in Muncie, Indiana Stayed

I earlier linked to a report that a trial court in Indiana had ordered a new election based upon allegations that one of the candidates engaged in unlawful electioneering at the polls. I had never heard of such a draconian penalty being imposed for electioneering.

Today an Indiana appellate court stayed that unusual trial court order. I would expect a reversal.

ILB: Here is the COA order from today -- I have no idea how/where it was obtained, as it wasn't posted ....

Hasen's link to the original story has expired, but here, still available as of now, is the original Muncie Star-Press story from July 15, 2011, by Doug Walker, headed "Judge orders special Muncie City Council election in two precincts." Some quotes from the long story:

MUNCIE -- Democratic voters in two eastside precincts will again cast primary ballots in the Muncie City Council District 6 race, a Delaware County judge ruled on Friday.

Circuit Court 3 Judge Linda Ralu Wolf ordered that a special election be held Sept. 13 in precincts 12 and 20, voting at the Buley Center and Price Hall, respectively. Those are the polling sites that current District 6 council member -- and apparent primary winner -- Julius Anderson was accused of entering, in violation of election law, while the May 3 primary election was under way.

When the votes cast that day were tallied, Richard Ivy had finished 10 votes behind Anderson in a three-candidate primary field.

Ivy filed a lawsuit, accusing Anderson of improper behavior on the day of the election, resulting in a one-day trial presided over by Wolf on June 23. Numerous witnesses testified they saw Anderson inside the two polling places, at times wearing a T-shirt and cap touting his District 6 campaign.

In her ruling released Friday afternoon, Wolf wrote there was "clear and convincing evidence" that a "series of deliberate acts" by Anderson made it "impossible to determine who received the largest number of legal votes" in a "very close and hotly contested race."

The judge wrote that the May 3 problems were "compounded by the troubling lack of knowledge and timely enforcement of election laws by precinct election officers."

Wolf said Anderson "should have known that he was not allowed within 50 feet of the polls and was not allowed to display his campaign attire that he was wearing." She ruled his actions "were not in compliance with election laws and these actions continued undeterred and unabated for several hours."

Contacted Friday evening and asked whether he would appeal Wolf's ruling, Anderson responded, "No comment."

During the June 23 trial, Anderson's attorney, William Groth, noted there was no testimony that anyone changed their vote as a result of his client's behavior.

"Voting is a social occasion," Groth said. "Candidates sometimes get carried away by enthusiasm." * * *

Delaware County Clerk Steve Craycraft on Friday estimated the cost of a two-precinct election at $3,000.

Asked for comment on the judge's ruling, Craycraft said, "I'm sure there will be an appeal, so I'll wait and see what happens."

[Updated 8/14/11] "Special election plans put on hold" is the headline to this story this morning in the Muncie Star=Press, reported by Douglas Walker, that begins:
The Indiana Court of Appeals on Friday put on hold plans for a special election to determine the Democratic nominee for a Muncie City Council seat.

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Indiana Government

Ind. Gov't. - More on "Starke County commissioners remove treasurer from office"

Updating this ILB entry from earlier today, an AP story is now reporting:

KNOX, Ind. — The State Board of Accounts is asking the commissioners in northern Indiana's Starke County to explain what authority they used to remove the county treasurer from office.

Deputy State Examiner Paul Joyce tells The Associated Press while there are processes to remove elected officials from office, he's not sure commissioners used the proper one when they voted Thursday to oust Linda Belork.

The Plymouth Pilot News reports that commissioners took the action after a State Board of Accounts audit. Joyce says that although the agency found inaccuracies in the 2009 audit, it didn't recommend removing Belork.

Here is the lengthy Marshall County Pilot News story, reported by Cheryl Patrick. Some quotes:
KNOX — Starke County Treasurer Linda Belork was removed from office Thursday afternoon, Aug. 11 by a unanimous decision of Starke County Commissioners Dan Bridegroom, Kathy Norem and Jennifer Davis. This decision came during the second emergency meeting of the day, a joint session of commissioners and the Starke County Council.

Bridegroom, who holds the position of commissioner president, opened the meeting with a summary of events that had taken place earlier in the day.

“There are considerable irregularities in the 2009 accounts; we have gone to the bank to freeze the accounts, but everyone will get paid,” he said.

Earlier in the day, the question of a delay in payroll for the county was discussed as a possibility.

Other steps were taken to secure the office of the treasurer.

“We served the treasurer with a restraining order — she is no longer allowed in the treasurer’s office. We removed the deputies in there this morning. We have filed a lawsuit on her bond,” Bridegroom said.
Following Bridegroom’s summarization, Commissioner Kathy Norem made another explosive motion — her second of the day.

“I make the motion that we remove the treasurer from her office,” Norem said. Bridegroom and Commissioner Davis agreed with two ayes.

During the first public meeting of the commissioners, Norem motioned that all employees in the treasurer’s office be terminated. Again, the motion was agreed upon by Bridegroom and Davis.

The commissioners also asked for a restraining order against Belork to secure the office. Once the decisions to obtain a restraining order and sue the treasurer’s bond were made, the necessary steps required to remove Belork had been taken.

An executive order of the commissioners is sufficient to remove an elected official from office. The commissioners cited Indiana Code 36-2-10-3: “The county executive may remove the treasurer from office if he is delinquent and has been sued on his official bond.”

One of the irregularities in the 2009 audit report is a delinquency of $636,618. While one quote in the amount of $890,000 was tossed out as delinquent, nowhere is that figure listed in the 2009 report, which was the basis for Thursday’s decisions. An amount, possibly in excess of 900,000 is listed in the suit against Belork's bond and the affidavit of Starke County Auditor Katherine Chaffins. The 2010 report, which should post in the next few weeks, may shed additional light on just how big a delinquency the county is facing.

If the $636,618 is the actual amount of the delinquency, Belork’s bond would cover the shortage.

“My understanding is the treasurer is bonded for $800,000,” Starke County Attorney Martin Lucas said.

If the amount is closer to the nearly $900,000 that was mentioned earlier in the meeting, the bond would fall short. * * *

Starke County Council President Mark Smith asked when the position would be filled by the Democratic Party. “My concern is things get back to normal with a treasurer in that office,” Smith said.

Lucas said the position would be filled like any other vacancy, by party caucus.

Starke County Councilman Marvin McLaughlin said a caucus at this point would be premature.

“That (a caucus) will have to wait until it’s official (Belork being permanently removed). She can appeal,” he said. * * *

There were several Starke County residents in attendance; and one of the concerns mentioned was in regards to the removal of the two employees who worked for Belork.

“Why did Robin (Lenig) and the part time person (Jennifer Norem) lose their jobs, when they weren’t involved,” Judy Lenig said.

Lenig is a sister-in-law to Belork, the mother to one of the Belork’s former employees and the mother-in-law to the other — which makes Belork the aunt and aunt-in-law to the ladies who were let go.
Bridegroom said the employees were removed because they didn’t want anyone left in there who could possibly have had something to do with the situation.

Commissioner Norem made reference to the family tie as a factor that was considered in their decision to terminate.

“We’re not taking any chances. The two people were nieces of the treasurer — so that has something to do with that,” Norem said.

Lenig disagreed. “No it doesn’t. You’re saying everyone in there is guilty,” she said.

Bridegroom said the reason the 2009 issue is being acted on in 2011 is because of the way the audits are conducted.

“The state moves very slowly. They are very very precise — they leave no stone unturned. That’s why it has taken so long,” he said.

Bridegroom said the whole situation just doesn’t sit right. “This is a great concern to me. This doesn’t bode well for us,” he said.

Bridegroom also said the 2010 report may shed additional light on the situation.

“Some of the questions may be answered when we get reports from 2010. From what they (State Board of Accounts) are alluding to, there are so many errors the records are not even usable at this time. And the auditor who was here was asked to move to her next assignment because she had been here so long,” he said.

The length of time the State Board spent trying to resolve the delinquency issue was worrisome for Bridegroom.

“That’s what concerned me so much. If you have someone from the State Board of Accounts here who is trained to find it (the money) and they can’t — then we have a huge problem,” he said.

ILB: Here is IC 36-2-10-3:
The county executive may remove the treasurer from office if he is delinquent and has been sued on his official bond.
The County Treasurer is a constitutional office. See Article 6, Sec. 2(a):
There shall be elected, in each county by the voters thereof, at the time of holding general elections, a Clerk of the Circuit Court, Auditor, Recorder, Treasurer, Sheriff, Coroner, and Surveyor, who shall, severally, hold their offices for four years.
Art. 6, Sec. 8 provides:
Section 8. All State, county, township, and town officers, may be impeached, or removed from office, in such manner as may be prescribed by law.
But does the law contemplate a hearing first, or simply summary removal?

The ILB recalls this August 12, 2010 story (no longer available but quoted in this 8/14/10 ILB entry), reported by Lesley Stedman Weidenbener and Ben Zion Hershberg of the LCJ, about efforts to remove the Jeffersonville Clerk-Treasurer (not a constitutional office):

INDIANAPOLIS — One day after Jeffersonville Clerk-Treasurer Peggy Wilder was arrested for a third crime in the past year, state Rep. Steve Stemler said he will pursue legislation to make it easier to remove elected officials who are not meeting “the public’s standards.”

Stemler, D-Jeffersonville, said in a statement Thursday that he is concerned about Wilder’s well-being but feels “a sense of responsibility to respond to public concerns and find some resolution to these unfortunate events as they continue to escalate out of control.”

“It is a shame that these measures need to be considered,” Stemler said. “However, the public’s trust in its elected officials must be the top priority in a true and free democracy.” * * *

State law does provide a procedure by which taxpayers can seek to have a public official removed from office, said David Bottorff, executive director of the Association of Indiana Counties.

Any taxpayer can petition the court, alleging that a public official is failing to perform his or her duties and a judge then holds a hearing and rules on whether the official should be removed, Bottorff said.

The law is not used often, though, in part because if the judge rules for the public official, the taxpayer can be held responsible for all the associated legal costs of the hearing.

Also, embattled public officials often resign before there’s a hearing, Bottorff said.

Last year, state Sen. Beverly Gard, R-Greenfield, proposed legislation to require that such hearings be expedited but the bill did not pass.

Stemler said he has not developed specific proposals for his legislation yet but is interested in tightening up the minimum time requirements that a full-time elected official needs to be working at official duties.

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 4 today (and 20 NFP)

For publication opinions today (4):

In LaDon Moore v. Review Board and Whitington Homes and Services, a 10-page opinion, Judge Baker writes:

In this case, one of the issues with which we are presented is whether this Court may publish the names of the parties in a case involving the Review Board of the Indiana Department of Workforce Development (the Review Board). Although Indiana Code section 22-4-19-6 imposes certain confidentiality obligations on the Department of Workforce Development (the Department), the statute as incorporated into Administrative Rule 9(G) does not impose the same obligations on this Court, in as much as Rule 9(G) states that although courts on appeal “should endeavor to exclude the names of parties and affected persons, and any other matters excluded from public access,” they may disclose names “as essential to the resolution of litigation or appropriate to further the establishment of precedent or the development of the law.” In light of the high volume of cases in which the Review Board is a party, publishing names is essential to eliminate confusion and to increase efficiency.

LaDon Moore appeals the decision of the Review Board finding Moore was discharged by her employer for just cause. The gravamen of her argument is that there is insufficient evidence to support the Board’s determination. Additionally, the Review Board has filed a Motion to Publish the Names of the Parties. Granting the Review Board’s Motion to Publish and concluding there is sufficient evidence to support the Review Board’s decision, we affirm. * * *

As a preliminary matter we note that the Review Board has filed a “Motion to Publish the Names of the Parties,” which asks this Court to publish the names of the parties, both individuals and employing units, in this, and in all future cases involving the Review Board. Specifically, the Review Board contends that it is difficult to administer the high volume of cases in the appellate process where the names of the individuals and employing units are not disclosed. This is because cases are no longer identifiable by the name of the employing unit, and the issue of initials for individuals has caused confusion. The Review Board further explains that the only sure way to identify a case on the Clerk’s Online Docket is by cause number, an inefficient and time-consuming process. The Review Board contends that although Indiana Code section 22-4-19-6 protects unemployment records from public access and from use while that information resides with the Department, the names of individuals and employing units need not be kept confidential in actions involving the court system in an otherwise public proceeding. We agree. * * *

Pursuant to this statute, unemployment records within the Department have always remained confidential. However, once a case was appealed to this Court, and despite the obligations of section 22-4-19-6, which have existed for over sixty years, the Attorney General (who represents the Review Board), employers, employees, other attorneys before this Court, and both the Indiana Supreme Court and this Court routinely disclosed the full names of the parties in pleadings and in opinions on appeal.

On January 1, 2010, Administrative Rule 9(G), which concerns information in court records that is excluded from public access, was amended to incorporate by reference Indiana Code section 22-4-19-6. This amendment has led some to believe that we are now required to keep the names of the parties confidential on appeal. Others disagree. Since January 1, 2010, there have been sixteen reported cases from this Court in which the Review Board is named a party. Four of those cases have used the full names of the parties. * * *

In sum, Administrative Rule 9(G) merely incorporated Section 22-4-19-6 as it had been interpreted for decades. With that in mind, reading the authority granted by Administrative Rule 9(G)(4)(d) together with section 22-4-19-6(b)’s exception for court orders and considering the Review Board’s interpretation of its own obligations under the statute as well as the interpretation of the statute by the Indiana Supreme Court and this Court in countless cases for over sixty years, we believe it is appropriate for this Court to use the full names of parties in routine appeals from the Review Board.

In Imari C. Butler v. State of Indiana , an 11-page opinion, the issue, as stated by Judge Riley, is:
Whether the trial court abused its discretion in admitting portions of Butler’s taped statement. * * *

Based on the precedent in Smith and Wilkes, we agree with Butler that the trial court erred in admitting many of the statements in his taped interview. Detective Smith’s statement “Imari[,] this young lady did not have sex with you consensually. You know it and I know it” is very similar to the detective’s statement in Wilkes that “you were there and we know it, and you know it. . . .” * * * It inappropriately asserts her opinion of his guilt.

However, even though we find that the trial court erred in admitting many of Detective Smith’s statements, we hold that, as in Wilkes, the error was harmless. The improper admission of hearsay evidence does not require reversal where, excluding the erroneously admitted hearsay evidence, there remains ample evidence to sustain the conviction. * * *

In light of these facts, we conclude that the trial court abused its discretion in admitting portions of Butler’s taped interview, but we will not reverse Butler’s convictions because the error was harmless.

In Farah, LLC, et al. v. Architura Corporation, a 22-page opinion, Judge Barnes concludes:
We reverse the trial court’s award of $26,166 in principal and $15,000 in attorney fees on Architura’s mechanic’s lien claim. The principal mechanic’s lien amount must be reduced to $7500, and we remand for the trial court to recalculate the amount of prejudgment interest to which Architura is entitled. We affirm the trial court’s decision not to award damages on Farah’s claim that Architura failed to adequately inspect the premises and affirm the amount of damages it awarded Farah for Architura’s breaches of contract.
In James C. Purcell v. Old National Bank , a 10-page opinion, Judge May writes:
James Purcell appeals a directed verdict in favor of Old National Bank (ONB). On cross-appeal, ONB appeals the denial of its motion to fees and costs. We affirm in part, reverse in part, and remand. * * *

The trial court did not abuse its discretion when it granted judgment on the evidence in favor of ONB regarding Purcell‟s negligence and constructive fraud claims, because ONB did not owe Purcell any duty as a subordinate creditor. However, the trial court abused its discretion when it granted judgment on the evidence on Purcell‟s other claims, because Stein‟s answers to an earlier interrogatory present a genuine issue of material fact regarding those claims. Finally, the trial court properly denied ONB‟s motion for attorney‟s fees and costs because Purcell‟s claims were not groundless. Accordingly, we affirm judgment on the evidence for Purcell‟s negligence claims, affirm the denial of attorney‟s fees, and reverse the judgment on the evidence for Purcell‟s actual fraud, pecuniary damages from deception, and tortious interference with contract claims and remand to the trial court for consideration of those issues before a jury.

NFP civil opinions today (10):

Michael R. Arbuckle v. Ann C. Arbuckle (NFP)

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

Paternity of S.K., et al.; J.K. v. J.K. (NFP)

Donald H. Westfall v. Wal-Mart Stores East (NFP)

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

J.M. v. J.W. (NFP)

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

Kevin J. Byers v. Consolidated Union, Inc. (NFP)

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

Paternity of C.P.; B.S. v. J.P. (NFP)

NFP criminal opinions today (10):

Johnny W. Jordan v. State of Indiana (NFP)

Michael Brown v. State of Indiana (NFP)

Amit Patel v. State of Indiana (NFP)

Jerome White v. State of Indiana (NFP)

Christopher Kimbrell v. State of Indiana (NFP)

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

Kevin J. Brown v. State of Indiana (NFP)

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

Steven Everett v. State of Indiana (NFP)

Robert Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Ruling in "School sued for punishing teens over MySpace pix"

Updating Wednesday evening's ILB entry, which includes a link to the opinion, Rebecca S. Green of the Fort Wayne Journal Gazette has a good story today on the ruling - it begins:

A federal judge has ruled against Smith-Green Community School Corp., which had punished two teenage girls for racy pictures they took at summer slumber parties.

Filed by the American Civil Liberties Union of Indiana on behalf of two unnamed girls, identified only by their initials, the case named the school district and Churubusco High School Principal Austin Couch as defendants.

In a ruling issued late Wednesday, U.S. District Chief Judge Philip J. Simon found the school district violated the girls’ constitutionally protected right to free speech in the summer of 2009 when it suspended the girls from extracurricular activities because of pictures they posted on social networking sites.

Whether the school will have to pay the girls’ damages is a matter yet to be decided as the judge waits on an unrelated appellate court case examining the issue of whether school corporations are immune from civil liability.

The FWJG also has an accompanying editorial, and it quotes, as does this week's opinion, a recent 3rd Circuit opinion:
“It would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities.” Layshock v. Hermitage School District, F.3d , 2011 WL 2305970, *9 (3rd Cir. June 13, 2011).

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Ind Fed D.Ct. Decisions

Environment - Couple who bought the farm after the fact held not responsible for the $197,000 clean up at the Muncie Sow unit in Delaware County

The ILB had several entries in May of 2009 and a followup in early 2010 on the question of "Who cleans up if a hog farm goes bankrupt?" Here is a quote from the May 15, 2009 story by Seth Slaubaugh in the Muncie Star-Press:

Since 1999, Muncie Sow Unit's owner has been fined more than $22,000 for spilling manure, failing to report manure spills, killing fish and other violations. The corporation is scheduled to be sentenced June 3 for environmental crimes.

Last year, [the abandoned] Muncie Sow Unit was bought by John and Becky Moriarity from Grant County. IDEM gave the couple five years to clean out the 12-million-gallon manure lagoon and pits beneath the barns.

Primarily as a result heavy rainfall, IDEM on April 30 obtained a court order to remove manure from the farm to prevent a spill. The manure was being hauled in tanker trucks to an Indianapolis wastewater treatment facility at a cost of 9 cents a gallon.

Then this past weekend, millions of gallons of manure from the lagoon were drained -- apparently on purpose and in violation of the law -- into a ditch that empties to Mississinewa River.

"We were informed that somebody -- I shouldn't say somebody -- that a breach occurred," said Don Dunnuck, an attorney representing the Moriaritys. "There is an investigation as to how the breach occurred, whether or not it was man-made or muskrats or whoever."

"When the Moriaritys bought the farm, it was represented to them by the auctioneer that liquid in the lagoon was an asset, a fertilizer to be applied on farm land, and they thought they had five years to market this product," Dunnuck said. "Then this spring IDEM came in and filed an injunction against them, alleging there was an immediate threat of a spill."

A court granted IDEM authority to remove the manure, reserving the issue of who would pay for it until a later date, Dunnuck said.

"The Moriaritys' position is, they didn't create the problem, and they've got five years to solve it, and if IDEM wants to violate the five-year period, it's up to them to pay for it," Dunnuck said. "That issue has yet to be resolved by a court."

Now that the level of the lagoon has been lowered, "I don't see an emergency any more," Dunnuck said.

So what has happened since? The ILB has seen no press releases from IDEM, no news stories and no IDEM enforcement reports since the last entry in early 2010. But yesterday I received this note from the couple who bought the farm, John and Becky Moriarity. I am quoting it in full, with permission:
Hello, we have enjoyed your site; especially since we were mentioned in it a couple of times the past couple of years. We did not see the posting of our victory over IDEM on your site or for that matter IDEM did not have their spokesperson give this follow up story.

My husband and I were not held responsible for the $197,000.00 clean up at the Muncie Sow unit in Delaware County. Not only were we not liable for the clean up, the Judge awarded us damages!

I am enclosing the satisfaction of Judgment document. I am keeping the settlement amount confidential.

Keep up the great site.

John and Becky Moriarity

Attached is the Aug. 5, 2011 "Satisfaction of Judgment" document from the Delaware Circuit Court.

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Environment

Ind. Gov't. - "Emails show IURC official lobbied Duke on personnel decision"

John Russell continued the IndyStar series on Duke Energy and the IURC yesterday with another front-page story. The long story began:

Indiana's top utility regulator sent a private email last year to a top executive at Duke Energy Corp., recommending "confidentially, just between you and me" that the utility hire his personal choice as president of its Indiana operations.

James Atterholt, chairman of the Indiana Utility Regulatory Commission, wrote that the hiring decision was "none of my business," but he hoped the company would consider his candidate, then a lobbyist for Duke.

The Indianapolis Star obtained the email, along with scores of others to and from Atterholt, in an open-records request and from other public documents.

The Star accompanies the story with 8 pages of emails. Page 4 is particularly intriguing ... Read it in conjunction with this earlier set of emails from the Star.

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Indiana Government

Ind. Courts - "Judge hears pros, cons in voucher suit"

Niki Kelly has good coverage today in the Fort Wayne Journal Gazette of yesterday's hearing yesterday on a preliminary injunction to halt implementing the school voucher law. From the story:

INDIANAPOLIS – A Marion County judge will rule early next week on whether to halt the new state-funded voucher program after hearing arguments Thursday on whether it unconstitutionally supports religious education.

“I have a little more work to do,” Superior Court Judge Michael Keele said after a two-hour hearing on the matter.

Keele said he will rule soon on the preliminary injunction, which would stop the program temporarily while the litigation proceeded.

Hoosier students started heading back to school this week around the state, with many more returning next week. So far, about 2,800 children have received state-paid vouchers to pay for private school tuition. * * *

The Indiana State Teachers Association and a host of plaintiffs filed suit against the program in early July. They claim it will drain resources from public schools and that tax money should not be used to support religious education.

The U.S. Supreme Court ruled in 2002 that state vouchers for parochial schools do not violate the U.S. Constitution. But the ISTA lawsuit is based on the Indiana Constitution, which has different language.

One of the opponents’ main arguments revolves around a provision of the state constitution that says “no money shall be drawn from the treasury, for the benefit of any religious or theological institution.” * * *

But attorney Tom Fisher, who is defending the suit for the attorney general’s office, said the legislative target for the law was to benefit the children – not the schools.

He said there is no specific tax on Hoosiers to fund religious schools – the vouchers are paid for from general tax dollars – and that it is the parents’ choice where to send the children, not the state.

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Indiana Courts

Ind. Gov't. - More on "State Rep. Phil Hinkle, a Republican, caught in tryst with male escort"

House Speaker Brian Bosma has released this statement:

STATEHOUSE— Speaker Brian C. Bosma (R-Indianapolis) released the following statement in response to the Indianapolis Star article this morning:

“If the circumstances are as reported, it is an extremely sad and disappointing situation for all of us, especially the families involved. Our next step will be to try to discuss this matter with Representative Hinkle and chart a course from there.”

Ed Feigenbaum remarks in Indiana Legislative Insight this morning:
Watch to see if the Hinkle matter has any impact on the local government reform front next session.
Mary Beth Schneider (IndyStar) tweets:
Gov. Daniels indicates that this is a sad incident for Hinkle family; does not explicitly call on him to resign.

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Indiana Government

Courts - More on: 7th Circuit Judge Terence Evans dies after battling a sudden, serious illness

Here is a long story/obituary today by Amy Rabideau Silvers in the Milwaukee Journal Sentinel on Terence T. Evans. It begins:

Terry Evans never forgot his roots - a working-class start and an upper flat in the Riverwest neighborhood - even after he was named to the second-highest court in the land.

Nominated by President Bill Clinton and confirmed by the U.S. Senate in 1995, he served with the 7th U.S. Circuit Court of Appeals in Chicago, handling appeals from federal trial courts in Wisconsin, Indiana and Illinois. In 2010, Evans moved to senior status and semiretirement.

"You never do anything just by yourself," he once said. "I've gotten to where I am because of the people in my life who have taken an interest in me."

Later in the story:
Did he think that he was a good judge, Evans was once asked.

"That's a lot like asking if I'm a good kisser," he quipped. "Without having been on the receiving end, I don't really know for sure."

And he spoke plainly about other matters, including the state [Wisconsin] Supreme Court race by Judge Michael Gableman to unseat incumbent Justice Louis Butler. Evans called the campaign a travesty.

"I just think it is a terrible system," he said while at Marquette's law school. "I think (a change) is long past due."

Evans offered a formal dissent on an appeals court ruling upholding Indiana's law on voter ID.

"Let's not beat around the bush," he wrote. "The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election day turnout by certain folks believed to skew Democratic."

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Courts in general

Ind. Gov't. - "Starke County commissioners remove treasurer from office"

Read the Gary Post-Tribune story by Terry Turner here. Some quotes:

KNOX — The Starke County Board of Commissioners, concerned about Treasurer Linda Belork’s inability to explain why $800,000 in taxpayer money is missing, on Thursday removed her from her elected office.

Board of Commissioners President Dan Bridegroom announced Belork’s removal from office at a special joint emergency session of the commissioners and County Council.

County Attorney Martin Lucas said the commissioners had the authority to seize Treasurer’s Office records, freeze county bank accounts and dismiss Belork and her employees “to safeguard the county.” The commissioners secured a restraining order from Starke Circuit Court for these measures, which also included banning Belork from access to paper and electronic records. It also indicated the county is seeking a default and damages from Belork’s surety bond.

A hearing on the order is scheduled for Sept. 19. Belork has the right to appeal the action to the county and to the court.

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Indiana Government

Courts - "E.P.A. Bans Sale of Tree-Killing Herbicide, Imprelis"

Updating three earlier ILB entries, today Jim Robbins of the NY Times reports in a story that begins:

The Environmental Protection Agency banned the sale on Thursday of Imprelis, a weed killer introduced this year that landscapers link to thousands of tree deaths around the country.

DuPont, which held discussions with the E.P.A. on the herbicide, suspended sales of the product last week and announced plans for a refund program. The company already faces lawsuits from property owners who lost numerous trees after landscapers began applying Imprelis to lawns and golf courses this spring.

The earlier ILB entries were headed "Pennsylvania Homeowner and Indiana Golf Course Company File Class Action Lawsuit Alleging DuPont's New Herbicide Imprelis is Causing the Death of Trees Nationwide."

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Courts in general | Environment

Ind. Gov't. - "State Rep. Phil Hinkle, a Republican, caught in tryst with male escort "

IndyStar reporter Carrie Ritchie just tweeted the above; it should have been the headline to today's long, front-page bombshell of a story by Star intern/Pulliam fellow Alex Campbell; read it here. A sample:

About 15 minutes later, Hinkle arrived in the room, changed into a towel and then during small talk informed Gibson he was a lawmaker.

Gibson said the man showed him an identification card.

The ID, Gibson said, gave a name: Phillip Hinkle.

"My eyes got big," Gibson told The Star. "I didn't really know what to say, so I didn't say anything. It was just a shock."

Gibson said he had posted on Craigslist before but had never met up with someone. Knowing he was in a bedroom with a politician, Gibson said, he got cold feet.

"Yeah, I don't want to do this," Gibson said he told Hinkle.

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Indiana Government

Ind. Law - "Baker & Daniels and Faegre & Benson Confirm Merger Talks"

See the story by Brian Baxter from The AM Law Daily; it begins:

Baker & Daniels and Faegre & Benson confirmed Thursday that they are in formal discussions on a potential combination that will be put to their respective partnerships for a vote sometime in October.
Here is a brief press statement.

Posted by Marcia Oddi on Friday, August 12, 2011
Posted to Indiana Law

Thursday, August 11, 2011

Ind. Courts - Even more on: Vouchers before the bench August 11th

Expanded coverage by Charles Wilson of the AP of this morning's hearing on the voucher law challenge is now available.

Posted by Marcia Oddi on Thursday, August 11, 2011
Posted to Indiana Courts

Ind. Law - "Why do drug charges carry bigger sentences than killing? For the answer, ask your legislator"

Efforts at sentencing reform in Indiana died in the last session. Eric Bradner of the Evansville Courier & Press reported on July 10 on efforts to try a new approach this year. From his long story:

Perhaps the most controversial piece of the sentencing reform puzzle is related to drug crimes.

Daniels, Bray and others have argued that community-based options might better suit those convicted of what are considered low-level drug crimes than incarceration does.

"If you could just get the kingpins, the drug cartel leaders and all of that, I would think life without parole would be a minimum," Bray said.

On the other hand, he said, "maybe 10 years is excessive for a kid who hasn't been in trouble and has done something stupid, or perhaps someone who is an addict trying to sell pot for a little cash. I'm not necessarily agreeing with that person, but maybe they're not the people we should fill our prisons with."

Finding a way to convince a majority of legislators that these arguments have merit, Daniels has argued, is urgent. 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.

Vanderburgh County Prosecutor Nicholas Hermann has resisted the proposed sentencing overhaul.Hermann said he is particularly concerned by the notion of dropping sentences for drug crimes – especially those involving methamphetamine.

"In Vanderburgh County, we led the state in meth lab seizures last year, and we're on pace to break our record from last year this year," he said.

"If you reduce the penalties, you're going to get more of it. That's what common sense would dictate."

Meth crimes, he said, can be destructive in ways that go well beyond what comes with most drug use.

"I've been in these homes and seen the kids' toys, the baby cradles. It's moved beyond a drug and a drug addiction to, you have someone basically making a bomb in a residential neighborhood," he said.

Other parts of Bradner's long story were reported in this July 11th ILB entry.

Today Justin Leighty of the Elkhart Truth
gives an in-depth look at sentencing disparities in Indiana with respect to drug and other cases. Here is what he writes:
GOSHEN - Monday's sentencing of Yvonne Addington once again raised questions that often come up when someone is convicted of a crime that involves someone's death but receives a sentence lighter than some drug cases. Here's a look at some of those questions and their answers.

Q: Why did Yvonne Addington only get four years, and only face eight, when she killed Alan Hess last March?

A: Addington reached a plea deal with Kristine Osterday, deputy prosecutor. Addington admitted to leaving the scene of a deadly crash and Osterday agreed to drop a second charge of failing to report a deadly accident. Even though the second charge carried the same weight, up to eight years in prison, the sentences may not have been eligible to be served back-to-back, meaning she might've only faced eight years even under both charges. The Elkhart County Prosecutor's office didn't respond to multiple requests for information on the case this week.

Judges have to weigh aggravating and mitigating factors when they sentence someone. According to the Indiana appellate courts, maximum sentences are reserved for "the worst of the worst." Judge Stephen Bowers laid out aggravating factors and mitigating factors to craft a sentence of two years in prison, two in Elkhart County Community Corrections and two years on probation.

Bowers noted, though, that if Addington stuck around after the crash and was found to have been intoxicated, she would've faced a more serious level of crime, which could've carried up to 20 years in prison.

Q: If she admitted to drinking at the time of the crash, why didn't she get a more serious charge?

A: "Without a BAC (blood/breath-alcohol-content) test, the State would need to prove intoxication," said Joel Schumm, a professor at Indiana University Law School in Indianapolis. "Her admission could probably be used against her," but only if it came before the guilty plea. "The offense would become a B felony, though only if she had a prior in the last five years or license restriction," said Schumm in an e-mail.

Q: Isn't killing someone the worst thing you can do under the law? Why do drug dealers get longer sentences?

A: "Criminal penalties are a legislative decision, and they sometimes do not seem proportional to the harm caused," said Schumm. "Property crimes and drug offenses are often punished more severely than crimes that involve serious injury or even death to people.

"Just about every year the General Assembly enhances the penalty for one or more crimes, sometimes in response to a specific case where the penalty seemed too low. This comes at a cost, though. The Pew Center study last year was crafted into a legislative proposal (SB 561 - last year's sentencing law reform bill) to make theft and drug offenses more graduated. The proponents of the legislation thought we were putting too many non-violent people in prison for too long, which costs a lot of money and will require new prisons if it continues. It did not pass because of very vocal opposition by prosecutors," Schumm said.

"The C felony penalty (2-8 years) for failure to stop is similar to the C felony penalty for involuntary manslaughter, reckless homicide," or operating a vehicle while intoxicated "causing death (if the person does not have a prior and is under 0.15 BAC - either of which make it a B felony). A person is dead in all those offenses, but the defendant is thought to be less culpable than in a murder (an intentional killing - 45 to 65 years) or voluntary manslaughter (an intentional killing under sudden heat - 20 to 50 years if a weapon is used).

"A person who forges a check for $10 can similarly be charged with a C felony, and a person who has three grams of cocaine within 1,000 feet of a school can be charged with an A felony (20-50 years)," Schumm pointed out.

"People upset about the penalties for this or any offense should contact their legislators. They are the only people who can alter the penalty ranges. Increasing the penalties for this or other crimes, though, means more government spending for prisons. It also means that a person who could be working and paying taxes is instead sitting in a prison cell costing taxpayers about $20,000/year."

Posted by Marcia Oddi on Thursday, August 11, 2011
Posted to Indiana Law

Law - "Earlier this year, mass murderer Charles Manson was caught for the second time with a phone at a California prison."

So reports the last sentence of this Reuter's story by Alex Dobuzinskis, from August 10th.

The story begins:

Facebook has shut down the accounts of at least two prisoners and officials are working on identifying other accounts that had been accessed from behind bars, said the California Department of Corrections and Rehabilitation.

Though most prisoners in California do not have access to the Internet, they often log onto the Internet with contraband cell phones, despite an effort to crack down on the devices, corrections officials said.

California corrections officials, who formally announced the partnership with Facebook Monday, said they have received hundreds of complaints from victims who were contacted by prison inmates behind bars.

The ILB has had a number of earlier entries on the problems of cell phones smuggled into prisons, including this one from Jan. 4, 2011.

Posted by Marcia Oddi on Thursday, August 11, 2011
Posted to General Law Related

Ind. Courts - Still more on: Vouchers before the bench August 11th

Charles Wilson of the AP reports:

A judge says he won't rule until next week on a request to block Indiana's new private school voucher law from taking effect.

The Marion County judge heard arguments for more than an hour Thursday morning in the lawsuit filed by a group of teachers and religious leaders challenging the law.

For background, start with this Aug. 10th ILB entry.

Dan Carden of the NWI Times has just published this more extensive coverage, setting out some of the arguments. A sample:

Attorney John West, representing a group of Hoosiers challenging the voucher law, said during oral arguments Thursday there's no question the voucher program is unconstitutional on both counts.

"When the constitution tells you that you're to provide for the education of Indiana children through a general uniform system of common schools, it's implicit in that that it can't be done in another way, such as sending them all to private schools with vouchers," West said.

West also emphasized the Indiana Constitution says no person shall be compelled to support any place of worship or ministry and "no money shall be drawn from the treasury for the benefit or any religious or theological institution."

Defending the law, Indiana Solicitor General Thomas Fisher argued the constitution only prohibits a direct tax to support a church and said the General Assembly is free to spend general tax dollars however it wishes. He also questioned whether church-run schools are religious institutions.

As for a uniform system of common schools, Fisher said so long as the state continues to support public schools there's nothing stopping lawmakers from assisting students who want to attend private schools.

"This sort-of enabling of parents and children to seek private school education is part of the tradition of what we've done in this state for a very long time," Fisher said, noting that more than 30,000 Indiana students enrolled outside their home district or in a charter school last year.

For the trial court briefs, see the end of this ILB entry from August 8th.

Posted by Marcia Oddi on Thursday, August 11, 2011
Posted to Indiana Courts

Courts - 7th Circuit Judge Terence Evans dies after battling a sudden, serious illness [Updated]

Here is a brief obituary from the Milwaukee Journal-Sentinel.

[More] See the Election Law Blog's tribute here.

[Updated at 2:38 pm] How Appealing has posted the statement of Seventh Circuit Chief Judge Frank H. Easterbrook regarding the death of Circuit Judge Terence T. Evans.

Here is a wonderful remembrance from a former clerk. A quote:

Judges on the Seventh Circuit mostly fall into two groups: former academics and former district judges. Evans was the latter. His judicial philosophy, to the extent he had one, was pragmatic. He liked to hire clerks with journalism backgrounds because he favored plain writing and clear legal explanations. On the appellate court, he retained the instincts of the district judge he had been for many years. He was inclined to defer to district judges when doing so was reasonable, and he liked to give them little shout-outs in his opinions when he thought they had gotten something right. He could be privately impatient with colleagues (or clerks) whom he thought were getting too deep into the weeds of legal theory. He was universally liked by lawyers who practice regularly at the 7th Circuit, who appreciated his civility toward them.

Posted by Marcia Oddi on Thursday, August 11, 2011
Posted to Courts in general

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

For publication opinions today (3):

Westville Correctional Facility, et al. v. George Finney, a 6-page opinion by Sr. Judge Sullivan, involves a petition for review of an administrative agency's decision where:

Judicial review was hampered by severe inadequacies in the record. Due to recording errors during the ALJ’s hearing, most of the witnesses’ testimony was not recorded. As we discuss in more detail below, only the testimony of witnesses Finney and Edwina Robinson are intelligible to any degree. Following a hearing upon Finney’s Petition for Judicial Review, Judge Dreyer granted the Petition, set aside the agency action and “remanded to the agency for further proceedings.” In his order, Judge Dreyer determined:
5. The record is devoid of any testimony of any witness other than Finney.
6. There is no testimony regarding any of the exhibits.
7. The only evidence related to the ALJ’s findings is only found in Finney’s testimony and from general references in some personnel documents about the 30-day suspension.
The reviewing court then concluded that Finney met his burden of demonstrating the invalidity of the administrative agency’s action in that the agency action was unsupported by substantial evidence and further, that Finney was prejudiced by the agency action. * * *

We hold that Westville, as the Appellant before this court, has not shown that the reviewing court committed reversible error. To the contrary, it is clear from the record before us that the agency’s action was without evidentiary foundation, let alone substantial evidence as required by Indiana Code section 4-21.5-5-14(d). * * *

The posture of the case at its various levels, including this level, cries out for remedial action with respect to SEAC’s [Indiana State Employees’ Appeals Commission] method of preserving testimonial evidence. * * *

For the reasons stated, we affirm the decision of the Marion Superior Court in granting judicial review and in remanding the matter to SEAC.

In Shepherd Properties Co. v. International Union of Painters and Allied Trades, District Council 91 , 4-page opinion on a petition for rehearing, Judge Bailey writes:
According to the Union, this Court sua sponte decided an issue not briefed by the parties and failed to distinguish relevant precedent. We grant rehearing for the limited purpose of expanding upon our discussion of the issue presented on appeal, concerning the propriety of an award of attorney’s fees under the Indiana Access to Public Records Act (“APRA”). * * *

We do not disagree with the Union’s contention, or prior observations from this Court, that APRA does not include language explicitly precluding attorney’s fees from a third party. Conversely, APRA does not include language providing for payment of attorney’s fees by an intervenor, and we will not write into the statute such a provision. This is within the province of our Legislature.

We affirm our original opinion.

Karl Driver v. State of Indiana - "We conclude from the discussion in Collins that LeFevre and Trial Rule 60(B) no longer provide an avenue for relief for a party that can seek relief under Trial Rule 72(E)."

NFP civil opinions today (1):

James Clint Lawson v. State of Indiana (NFP)

NFP criminal opinions today (1):

Bradley A. Hole v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 11, 2011
Posted to Ind. App.Ct. Decisions

Wednesday, August 10, 2011

Law - More on: Renton Washington Police Respond To Parody Videos Investigation

Updating this ILB entry from August 8th, Mr. Fiddlesticks is safe for now. From today's KIRO story:

The city went to court, seeking a search warrant and the identity of the creator of the unflattering cartoon videos. A judge granted the request.

But now, the attorney for the anonymous person known as Mrfuddlesticks, has convinced the judge to stop the search. Harish Bharti says his client has done nothing criminal.

"The judge granted a stay to us which means the police cannot obtain the identity of the author because it is constitutionally protected video," said Bharti.

The videos are critical of police and city administrators but the cartoons don't name any person or even identify a city.

Posted by Marcia Oddi on Wednesday, August 10, 2011
Posted to General Law Related

Ind. Decisions - Ruling in "School sued for punishing teens over MySpace pix"

Remember this ILB entry from Oct. 31, 2009, relating to "two girls, both sophomore fall-sport athletes, [who] were suspended from extracurricular activities for the entire school year because of sexually suggestive photographs posted on their pages on MySpace, a social networking site on the Internet." And this most-recent entry, from March 11, 2010, reporting that "Today Judge Philip P. Simon, ND Ind., issued a 10-page order denying class certification."

Well, today Judge Simon issued a comprehensive, 38-page opinion in the case of T.V., a minor child, by her parents, legal guardians and next friends, B.V. and T.V., and M.K., a minor child, by her parents, legal guardians and next friends, G.K. and R.K. v. SMITH-GREEN COMMUNITY SCHOOL CORPORATION and AUSTIN COUCH, Principal of Churubusco High School. It is well-worth reading in full and, yes, it does take into account, at p. 20, this month's en banc 3rd Circuit decision in J.S. v. Blue Mountain School District. (See good discussion of that decision here.)

Here are some quotes from Judge Simon's opinion:

Not much good takes place at slumber parties for high school kids, and this case proves the point. During a summer sleepover, plaintiffs – 16 year old T.V. and 15 year old M.K. – posed for some raunchy photos which they later posted online. When school officials caught wind of the saucy online display, they suspended both girls from extracurricular activities for a portion of the upcoming school year. This lawsuit, brought by T.V. and M.K. through their parents, seeks to vindicate their First Amendment rights. The defendants are the Smith-Green Community School Corporation and Austin Couch, the principal of Churubusco High School. Both sides now seek summary judgment. The case poses timely questions about the limits school officials can place on out of school speech by students in the information age where Twitter, Facebook, MySpace, texts, and the like rule the day. The school argues that they ought to be allowed to regulate this speech while the students claim that their First Amendment rights are being violated.

Let’s be honest about it: the speech in this case doesn’t exactly call to mind high-minded civic discourse about current events. And one could reasonably question the wisdom of making a federal case out of a 6-game suspension from a high school volleyball schedule. But for better or worse, that’s what this case is about and it is now ripe for disposition. * * *

On the record before me, I conclude as a matter of law that the conduct in which M.K. and T.V. engaged, and that they recorded in the images which led to their punishment by Smith- Green School Corporation, had a particularized message of crude humor likely to be understood by those they expected to view the conduct, and so was sufficiently expressive as to be considered within the ambit of the First Amendment.

The subsequent levels of analysis are whether the photographs themselves, and the posting of the images to the internet, were also protected by the girls’ rights of free speech. In light of the analysis as to the underlying conduct, these layers seem more straightforward. The photographic recording of the staged event and the uploading of the images to the social networking sites are both efforts to memorialize and further communicate the expression engaged in by the conduct depicted in the images. “The protection of the First Amendment is not limited to written or spoken words, but includes other mediums of expression, including music, pictures, films, photographs, paintings, drawings, engravings, prints, and sculptures.” * * *

The law readily supports the conclusion that the images constitute protected expression, for the same reasons that the underlying conduct has been found to be expressive for First Amendment purposes, supplemented by the girls’ intention to preserve the scenes they created for further viewing. * * *

The next step, the publication of the images to the social networking sites, functioned in effect as a public display of the photographs, and thereby itself expressed an intention to communicate the expression inherent in the girls’ conduct and the images of it. * * * As for the use of the internet, which has become the billboard to the world, “[t]he Supreme Court has also made clear that First Amendment protections for speech extend fully to communications made through the medium of the internet.” [emphasis by ILB] * * *

For all these reasons, my backtracking to address these threshold questions yields a result that ultimately makes the initial inattention to the issues unproblematic. I trust, however, that as a result of the detour, the analysis of the case is now more complete. I conclude that whether the punishment of T.V. and M.K. was based on the acts depicted in the photographs, the taking or existence of the images themselves, or the posting of the photographs to the internet, each of those possibilities qualifies as “speech” within the meaning of the First Amendment. * * *

This thin record does not support a determination as a matter of law that the school officials made a reasonable forecast of substantial disruption. To the contrary, if this is all the school corporation relies upon, I can conclude as a matter of law that the substantial disruption required by the Tinker test was not reasonably forecast.

To sum up: no reasonable jury could conclude that the photos of T.V. and M.K. posted on the internet caused a substantial disruption to school activities, or that there was a reasonably foreseeable chance of future substantial disruption. And while the crass foolishness that is the subject of the protected speech in this case makes one long for important substantive expressions like the black armbands of Tinker, such a distinction between the worthwhile and the unworthy is exactly what the First Amendment does not permit. With all respect to the important and valuable function of public school authorities, and the considerable deference to their judgment that is so often due, “[i]t would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities.” Layshock v. Hermitage School District, F.3d , 2011 WL 2305970, *9 (3rd Cir. June 13, 2011). Plaintiffs’ motion for partial summary judgment will therefore be granted, and defendants’ summary judgment motion denied, on the issue whether T.V. and M.K. were punished in violation of their First Amendment rights. * * *

Today I determine as a matter of law that the punishment imposed on T.V. and M.K. for their out of school expression violated their First Amendment rights. With the agreement of the parties, I reserve ruling on the issue of the school corporation’s immunity from damages under the Eleventh Amendment, pending the Seventh Circuit’s decision in Amber Parker v. Franklin County Community School Corporation, Cause No. 10-3595. I conclude that Principal Couch is entitled to qualified immunity from damages because, though mistaken, his judgment could reasonably have been thought to be consistent with the students’ rights, which were not clearly established at the time of his decision. Finally, I conclude that a Student Handbook provision that authorizes discipline for out of school conduct that brings “dishonor” or “discredit” upon the school or the student is so vague and overbroad as to violate the Constitution. I wish the case involved more important and worthwhile speech on the part of the students, but then of course a school’s well-intentioned but unconstitutional punishment of that speech would be all the more regrettable.

Posted by Marcia Oddi on Wednesday, August 10, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Howard Regional Health System, et al. v. Jacob Gordon, et al. , a 17-page, 5-0 opinion (with J. Dickson concurring separately), Chief Justice Shepard writes:

Jacob Gordon‘s mother sued Howard Community Hospital, alleging it committed medical malpractice while caring for her son. In another count of the complaint, she sought separate damages for spoliation, saying the Hospital had lost certain medical records associated with Gordon‘s care and that this loss made it impossible for Gordon to pursue a medical malpractice claim against one of his doctors, who was also a defendant.

As we explain below, many of the considerations that led us to decline to recognize first-party spoliation in Gribben v. Wal-Mart Stores, Inc., and to decline to recognize third-party spoliation in Glotzbach v. Froman in the context of workers‘ compensation, apply here. * * *

Whether the Gordons are entitled to any sanctions against the Hospital for the loss of records in question is an intensively fact-sensitive inquiry. In the current state of the proceeding, relatively little is known of record about the role of the missing evidence as respects the claims against the various defendants, how and when and by whom the records went missing, the nature and availability of other evidence that may bear on the Gordons‘ malpractice claims, and so on. In the course of further proceedings before the medical review panel and the trial court thereafter, a good deal more is likely to be learned about these facts and about whether a litigation sanction against the Hospital is warranted.

We reverse the judgment of the trial court.

Sullivan, Rucker, and David, JJ., concur.
Dickson, J., concurs in result with separate opinion.

ILB: Yesterday the COA issued an opinion in Kelley v. Patel (see ILB summary here - 3rd case). From the opinion:
The Estate raises one issue on appeal, which we restate as whether the Estate has an available third-party cause of action against Indiana Insurance for spoliation of evidence. Concluding that a cause of action is not available under the facts of this case, we affirm. * * *

We do not hold that third-party spoliation claims could never be available against a liability insurer where death or serious injury resulted on the insured’s business premises. Yet, as the above discussion of Indiana cases illustrates, our courts recognize spoliation of evidence as an independent tort only in narrow circumstances where a relationship exists between the claimant and the third party sought to be held responsible for a failure to preserve evidence.

Footnote 7 of this COA opinion references the case decided today by the Supreme Court:
In Howard Reg’l Health Sys. v. Gordon, 925 N.E.2d 453 (Ind. Ct. App. 2010), trans. granted, 940 N.E.2d 823 (Ind. 2010), this court held that an independent tort of spoliation could be brought by a patient against the hospital that breached its statutory duty to preserve the patient’s medical records. That holding was vacated on transfer, and our supreme court has not yet issued an opinion.

Posted by Marcia Oddi on Wednesday, August 10, 2011
Posted to Ind. Sup.Ct. Decisions

About this Blog - Thanks to ILB supporters; and how you too can become one!

I'm pleased to announce that the backbone of the ILB's support, the Indiana State Bar Association, along with Doxpop and the ISBA Litigation Section, have all committed to support the ILB for another year.

In addition, this quarter the ILB gained another law firm/individual lawyer supporter AND all of the existing supporters renewed for another year.

Here is the newly updated list:

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

What if you'd prefer to send an anonymous individual donation (i.e. not be identified on the ILB) from time to time, rather than making an annual commitment? A handful of you already have done that, and I really appreciate the support. To do so, simply make your check out to Environmental Information Solutions and mail it to 1319 N. Alabama St., Indianapolis 46202-2523. [Sorry, we are not 501(c)(3).] Include your email if you'd like an acknowledgment of receipt and a thanks. Thanks to those of you who have elected to send the ILB a donation in this way. No amount is too small, or of course, too large.

Finally, I want again to express my thanks to all of you who have become supporters of the ILB. Without your help, there would be no ILB!

Posted by Marcia Oddi on Wednesday, August 10, 2011
Posted to About the Indiana Law Blog

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

In Weatherbee v. Astrue (SDInd., Pratt), a 15-page opinion, Judge Cudahy writes:

Gregory K. Weatherbee applied for Social Security disability insurance benefits and supplemental security income payments after suffering serious injuries in a motorcycle crash. Weatherbee’s application was initially denied by the Social Security Administration. An Administrative Law Judge (ALJ) also denied Weatherbee’s claim after conducting a hearing finding that Weatherbee could perform a significant number of jobs. Weatherbee appealed the ALJ’s denial of his claim to the district court, who found that the decision to deny his application was supported by substantial evidence. We affirm.

Posted by Marcia Oddi on Wednesday, August 10, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on: The Indiana Public Defender Commission’s annual report for 2010-2011 is now available online

Updating yesterday's ILB entry, the Fort Wayne Journal Gazette has this editorial today, headed "Eight years later, county still reaping benefits of Felts’ decision:"

Less than a year after being elected Circuit Court judge in 2002, Thomas Felts took steps to improve the local public defender’s office, creating an independent board to oversee it and following state guidelines on staffing and salaries. As a result, beginning in 2004 Allen County became eligible for state reimbursement for the cost of the public defender’s office.

The annual report the state Public Defender Commission released this week shows just what that means to Allen County: $1.1 million in the past fiscal year alone, half of the $2.2 million annual budget.

Yes, it’s all public tax money. But local taxpayers would be paying into the state account regardless, and every dollar coming from the state is one less dollar directly taken from Allen County property owners and wage earners. The annual reimbursement serves as another reminder that Felts made the right decision eight years ago, a decision that continues to help local taxpayers every year.

Most other northeast Indiana counties also participate, with the notable exception of cash-strapped Huntington County. Given that county’s fiscal situation – it was especially hard hit by the property tax caps – officials there should consider seeking the state reimbursement.

See the discussion re county participation, starting in mid-p. 7 of the report.

Posted by Marcia Oddi on Wednesday, August 10, 2011
Posted to Indiana Courts

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

For publication opinions today (3):

In Thomas R. Crowel v. Marshall County Drainage Bd. , a 19-page, 2-1 opinion, Judge Mathias rules that "the trial court erred in concluding that the Drainage Board's decision was not arbitrary, capricious, unlawful, or not supported by substantial evidence." The majority opinion concludes:

Because the trial court's findings were insufficient to support its conclusion that the Drainage Board's assessment was not arbitrary, capricious, unlawful, or not supported by substantial evidence, we must vacate the trial court's order. However, because evidence was presented at trial that might support the conclusion that Crowel's land was benefitted by the reconstruction project, we remand to the trial court with instructions to reconsider the evidence in the record and enter new findings and conclusions, if warranted and as supported by the record. If, on remand, the trial court determines based on the evidence in the record that Crowel's land will be benefitted by the reconstruction project, its findings and conclusions should reflect the evidence that supports that determination. If, however, the trial court determines that Crowel's land will not be benefitted, as defined by statute and case law, it should enter judgment in favor of Crowel. We stress that neither Crowel nor the Drainage Board are to be given the opportunity to retry the case or present additional evidence on remand; the trial court's judgment should be based solely on the evidence in the record. Reversed and remanded with instructions.

KIRSCH, J., concurs.
VAIDIK, J., dissents with opinion. [that begins, at p. 16 of 19]I respectfully disagree with my colleagues that the trial court's findings were insufficient to support its conclusion that the Drainage Board's assessment was not arbitrary, capricious, unlawful, or otherwise not supported by substantial evidence. My colleagues' opinion is premised upon the assumption that Crowel's land was not benefitted by reconstructing this drain. I disagree.

In Raymond Flores v. Juan P. Rocha Gutierrez , a 15-page opinion, Judge Bradford writes:
Following an automobile accident, Appellant-Plaintiff Raymond Flores brought a personal injury action against Appellee-Defendant Juan Rocha Gutierrez in which Gutierrez was determined to be liable, but the jury awarded Flores no damages. The trial court subsequently denied Flores's motion to correct error alleging that the verdict was inconsistent with the evidence and inadequate as a matter of law. Upon appeal, Flores claims that the trial court abused its discretion in denying his motion to correct error. In addition, Flores challenges the trial court's admission of certain evidence, specifically a photograph of property damage and his claim for worker's compensation benefits relating to a subsequent fall. He also challenges the trial court's exclusion of certain of his medical records. We affirm.
In Thomas Kornelik v. Mittal Steel USA, Inc., et al. , a 14-page opinion, Judge Baker writes:
Today we decide whether an injured employee who settles with a third party for substantially less than the damages value of his claim without the consent of his employer or his worker's compensation carrier can subsequently reduce his lien arising under the Indiana Worker's Compensation Act by attorney fees and pro rata costs pursuant to Indiana Code section 22-3-2-13 and in the same proportion that his full recovery was reduced pursuant to Indiana Code section 34-51-2-19. We answer the first question in the affirmative, and the second in the negative.

Plaintiff-appellant Thomas Kornelik appeals the trial court's denial of his motion to correct error following the dismissal of his motion to adjudicate lien and for declaratory judgment. Specifically, Kornelik contends that the trial court erred in failing to reduce his worker's compensation lien by attorney fees and a pro rata share of costs as well as in the same proportion that his full recovery was reduced. Concluding that the trial court erred in failing to reduce Kornelik's lien by attorney fees and pro rata costs, but properly refused to reduce the lien in the same proportion that Kornelik's full recovery was reduced, we affirm in part, reverse in part, and remand with instructions for the trial court to reduce the lien by attorney fees and a pro rata share of costs.

Affirmed in part, reversed in part and remanded with instructions.

NFP civil opinions today (2):

Javier Soto v Monaco Coach Corp. (NFP)

D.R., Alleged to be C.H.I.N.S.; J.R. v. I.D.C.S. & Child Advocates (NFP)

NFP criminal opinions today (6):

Freddie McKnight v. Curtis T. Hill, Jr., et al. (NFP)

R.C. v. State of Indiana (NFP)

Jose Lozano v. State of Indiana (NFP)

Christopher Richmond v. State of Indiana (NFP)

Yasmin Wilson v. State of Indiana (NFP)

Tradell Marzette v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 10, 2011
Posted to Ind. App.Ct. Decisions

Law - "Charges officially dropped against NY photographer arrested for taping police"

This post this morning at Poynter, by Julie Moos, reports that: "Long Island photojournalist Phil Datz has been officially cleared of the obstruction charges filed against him after he continued to record police officers when they asked him to stop." It has several links, including this most useful link to a long story, headed "What to do when police tell you to stop taking photos, video." And does it vary if you are a journalist, or not? The story links to another of equal interest, at Gizmodo, headed "Are Cameras the New Guns?."

For background, see this July 10, 2011 ILB entry, and its links.

Posted by Marcia Oddi on Wednesday, August 10, 2011
Posted to General Law Related

Law - Two technology-privacy stories; plus 2 DNA stories

Two technology-privacy stories caught my eye yesterday:

"Google Group Members to Use Facial Recognition to Identify London Rioters," from TechCrunch.

"Massachusetts Police Want To Track All Cars On The Road — Are Your Rights Being Violated?" from Singularity Hub. Here is the intro to the long story:

Last month, the governor of Massachusetts approved half a million dollars in grants for 27 police departments to acquire automated license plate readers that mount to the top of squad cars. These readers allow a patrol car to drive through an area and be alerted if a license plate on a flagged list is identified. But the state wants to take the technology a step further by feeding every car’s license plate into a central database. Although this database stores information that directly pertains to police monitoring of an area for illegal activity, such as arrest records, registration and license information, and insurance status, the system would allow the tracking cars of law-abiding citizens as well. Consequently, concerns over privacy have been raised by civil liberty advocates, and in response, the grant money has been put on hold until protocols are defined for handling all the data.

While this situation is left in a holding pattern, it gives us pause to reflect on what all this actually means: as in a number of other recent situations that indicate a growing trend, identification technology is outpacing government policy because disagreement about personal rights abounds in the digital age.

The above Singularity story links to its July 20th story headed "Arrested For a Crime, Get DNA Profiled — Even More States Now Collect Samples at Booking," that begins:
It’s getting harder to be a criminal…at least a career criminal. That’s because 25 states now collect DNA for certain felony arrests, such as violent or sexual crimes. Furthermore, as of July 1, New Mexico joins 12 other states [ILB - including Indiana, IC 10-13-6] to collect DNA evidence from anyone arrested for a felony as part of their booking process. And if that isn’t enough, 15 states are going even a step further and collecting DNA from those arrested on certain misdemeanors as well. While all states acquire DNA samples for felony convictions, the switch to collecting upon arrest has been gaining momentum and doesn’t seem to be letting up. An increasing number of people who are arrested are having their DNA profile entered into enormous databases accessible by numerous law enforcement agencies across the country. Talk about a deterrent to crossing the line again. Thanks to the technology that has made DNA analysis faster and easier, the swift arm of the law is getting even faster.
Caalifornia is one of the states listed in the story as collecting DNA upon arrest. Yesterday, David Kravets reported in Wired Threat Level, in a story headed "Collecting DNA From Arrestees Is Unconstitutional, California Court Says," that began:
A California appeals court is striking down a voter-approved measure requiring every adult arrested on a felony charge to submit a DNA sample.

The 1st District Court of Appeal in San Francisco said Proposition 69 amounted to unconstitutional, warrantless searches of arrestees. More than 1.6 million samples have been taken following the law’s 2009 implementation.

“What the DNA Act authorizes is the warrantless and suspicionless search of individuals, before a judicial determination of probable cause to believe they have committed a crime, for evidence of crime unrelated to that for which they have been arrested,” (.pdf) the court wrote. “The United States Supreme Court has never permitted suspicionless searches aimed at uncovering evidence of crime outside the context of convicted offenders.”

The California appeals court distanced itself from other rulings on the issue, holding that DNA collection from arrestees’ inner cheeks is not the same as taking fingerprints. About half of those arrested in California are convicted.

“The question this case presents, which is increasingly presented to the courts of this state and nation, is the extent to which technology can be permitted to diminish the privacy guaranteed by the Fourth Amendment,” the court wrote. [ILB emphasis]

Wired has posted the 45-page opinion, The People v. Buza.

Posted by Marcia Oddi on Wednesday, August 10, 2011
Posted to General Law Related

Ind. Courts - More on: Vouchers before the bench August 11th

Updating this ILB entry from August 8th, Indy6News reports this morning under the headline "School Vouchers In Demand As Lawsuit Looms: 7,500 Eligible For Vouchers This Year."

AVON, Ind. -- While 243 private schools have been approved to receive vouchers as part of an Indiana program that is the most expansive in the country, a court hearing set for Thursday could put the brakes on the program.

About 2,230 students have been approved to receive vouchers, and the future of their education hangs in the balance, 6News' Derrik Thomas reported.

The Indiana State Teachers Association has vociferously battled the legislation all along the way.

Posted by Marcia Oddi on Wednesday, August 10, 2011
Posted to Indiana Courts

Tuesday, August 09, 2011

Law - "Smart Reform Is Possible: States Reducing Incarceration Rates and Costs While Protecting Communities"

A new report, out today from the ACLU, is titled "Smart Reform Is Possible: States Reducing Incarceration Rates and Costs While Protecting Communities." From the description:

This report highlights six traditionally "tough on crime" states — Texas, Mississippi, Kansas, South Carolina, Kentucky, and Ohio — that recently passed significant bipartisan reforms to reduce their prison populations and budgets. These states experienced declines in their crime rates while these new policies were in place. The report also highlights national trends in criminal justice legislation and offers a number of recommended ways that lawmakers in other states can reform their pre-trial, sentencing, parole, and probation systems. Smart Reform is Possible serves as an exciting and essential blueprint for states on the cusp of considering the reform of their corrections systems.
ILB readers know that sentencing reform was a big issue in Indiana during the last session, but it failed totally. Here is how the discussion of Indiana in the new ACLU report reads:
Indiana: A Missed Opportunity, but Hope for 2012

Recognizing the need for reducing prison populations and costs in Indiana, Governor Mitch Daniels (R) proposed a comprehensive package of criminal justice reforms to save the state more than $1 billion. The proposal, which received technical assistance from the Council of State Governments, aimed to rely less on prisons for nonviolent offenses, thereby freeing up space for individuals who pose the greatest threat to public safety. Bipartisan legislators introduced and championed the reforms, packaged as SB 561.

Unfortunately, using “tough on crime” rhetoric, prosecutors persuaded the Senate to pass an amended version of the bill that turned the original proposal on its head. Had the amended version become law, it would have actually increased prison time, populations, and budgets; the state would have had to build three new prisons, at a cost of $210 million each with an additional $48 million a year to operate them. Governor Daniels rightfully announced that he would veto such a costly and ineffective bill. The legislature then chose to let the bill die rather than send the governor a bill that he would veto.

Governor Daniels and reform groups have already announced they will push another effort for comprehensive reform next year.302 The state has also formed a study committee to explore marijuana decriminalization and non-prison alternatives for offenses. Indiana remains a state at a crossroads: if state officials are serious about closing the deficit and reducing unnecessary incarceration, they will pass legislation in 2012 that models the Governor’s original vision.

Posted by Marcia Oddi on Tuesday, August 09, 2011
Posted to General Law Related

Courts - "Thomas A. Cooley Law School is trying to discover the names of four anonymous bloggers"

The Detroit Free Press reporter, David Jesse, has the story, dated August 6th. A quote from the story:

Cooley filed the lawsuit in late July, asking an Ingham County judge to force Web hosting companies to disclose the names and other information of four people who posted anonymous comments critical of Cooley on various Web sites, including one person named Rockstar05, the anonymous creator of a Web site called "The Thomas M. Cooley Law School Scam."
TechDirt is also covering this, starting August 8th, with a long entry headed "How To Make A Mockery Of Your Own Law School: Sue Your Critics."

TechDirt also has posted, at the same link, a copy of the complaint, along with:

... a separate lawsuit against some lawyers who claimed to be putting together a class action lawsuit against Cooley over (the lawyers claimed) "manipulating post-graduate employment data and salary info."

Posted by Marcia Oddi on Tuesday, August 09, 2011
Posted to Courts in general

Ind. Courts - "Changes Proposed to Marion Criminal Law Local Rules"

See the Indianapolis Bar Association blog's entry here.

Posted by Marcia Oddi on Tuesday, August 09, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 6 today (and 21 NFP)

For publication opinions today (6):

In Indiana-Kentucky Electric Corp., et al. v. Save the Valley, et al. , a 14-page opinion in a case familiar to Indiana environmental attorneys, the issue again is associational standing. Judge Vaidik writes:

Indiana-Kentucky Electric Corp. (IKEC) received a solid waste permit to operate a landfill, and several environmental groups, Save the Valley, Inc., Hoosier Environmental Council, Inc., and Citizens Action Coalition of Indiana, Inc. (collectively “Citizens Groups”), filed a petition for review of the permit. A dispute then arose over whether Citizens Groups had standing to challenge IKEC's permit. As a matter of first impression, this Court, relying in part on a recent Indiana Supreme Court decision, held that Citizens Groups could seek administrative review under the doctrine of associational standing. Save the Valley, Inc. v. Indiana-Kentucky Elec. Corp., 820 N.E.2d 677 (2005). The case was remanded to the administrative agency. After IKEC was successful on the merits of the permit, it sought to relitigate the issue of associational standing. We, however, find that the law-of-the-case doctrine bars it from doing so and affirm the trial court. * * *

The issue in Save the Valley I was whether Citizens Groups had standing to challenge IKEC's permit and therefore whether the OEA had subject matter jurisdiction, not whether any procedural requirements were satisfied. Although we used the phrase “jurisdiction over the case,” we used it just like the Supreme Court meant—that the OEA had jurisdiction over the general class of actions to which the case belonged. K.S. did not abrogate Save the Valley I's discussion of associational standing, and it is therefore not an extraordinary circumstance under the law-of-the-case doctrine. We affirm the trial court.

Brian Haehl v. David Montgomery and Phyliss Crumbo is a 28-page opinion, where the issues are:
I. Whether the court abused its discretion when it removed Haehl as trustee and, upon modifying the trust, appointed Crumbo as successor trustee; and
II. Whether the court abused its discretion when it awarded attorney fees in favor of the Appellees and denied Haehl's request for additional compensation and attorney fees.
In Joseph A. Kelley v. Jagdish Patel, Jayandra Patel, d/b/a Economy Inn and Indiana Insurance , a 13-page opinion, Chief Judge Robb writes:
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. The Estate raises one issue on appeal, which we restate as whether the Estate has an available third-party cause of action against Indiana Insurance for spoliation of evidence. Concluding that a cause of action is not available under the facts of this case, we affirm. * * *

We do not hold that third-party spoliation claims could never be available against a liability insurer where death or serious injury resulted on the insured’s business premises. Yet, as the above discussion of Indiana cases illustrates, our courts recognize spoliation of evidence as an independent tort only in narrow circumstances where a relationship exists between the claimant and the third party sought to be held responsible for a failure to preserve evidence.

In Steven Buse, Kathleen Payne, et al. v. Trustees of the Luce Township Regional Sewer District, a 12-page opinion, Judge Najam writes:
Steven Buse, Kathleen Payne, Stephen Payne, Peter Cetas, Tommy Johnson, Cynthia Johnson, and Alan Stephens (“the Property Owners”) bring this interlocutory appeal from the trial court's order in which the court concluded that their lawsuit against the Trustees of the Luce Township Regional Sewer District (“the Sewer District”) is a public lawsuit that cannot proceed until the Property Owners have posted a $9 million bond. The Property Owners raise two issues for our review, which we restate as the following dispositive issue: whether the trial court properly concluded that four counts of the Property Owners complaint constitute a public lawsuit against the Sewer District pursuant to Indiana Code Section 34-6-2-124. We hold that the public lawsuit statute does not apply and, accordingly, we reverse and remand for further proceedings. * * *

The critical factor is not whether the claims have some public importance but what the interests are that the plaintiffs seek to protect. * * * In other words, the Property Owners' action against the Sewer District is “an action by individual landowner[s] seeking to protect [their] private interest[s] in property” and, therefore, “does not constitute the basis for a public lawsuit.”

In Stephen M. Scheckel v. NLI, Inc. , an 8-page opinion, Judge Kirsch writes:
Stephen M. Scheckel (“Scheckel”) appeals from the trial court’s order granting judgment in favor of NLI, Inc. (“NLI”), in his small claims action against NLI, the owner of adjoining real estate, for damages sustained to his property caused by the growth of a tree trunk and roots located on NLI’s property. * * *

Indiana has long recognized the right of landowners to recover damages to their property caused by trees growing on an adjoining property as a private nuisance. In Toledo, S.L. & K.C.R. Co. v. Loop,139 Ind. 542, 39 N.E. 306, 307 (1894), our Supreme Court held that in the event of trees growing so close to the boundary line between two properties that its branches encroach on the adjoining premises, the adjoining landowner may have an action for damages in nuisance if injury were shown. The decision in Loop was followed nearly forty years later by this court in Luke v. Scott, 98 Ind. App. 15, 187 N.E. 63, 64 (1933).

The trial court erred by applying the Restatement’s natural condition rule to the facts of this case. Accordingly, we reverse its judgment in favor of NLI and remand for the entry of judgment consistent with this opinion.

In Bethany Quiring, Linda Ann Johnston f/k/a Linda Ann Lougher, et al. v. Geico General Insurance Company, a 26-page opinion, Chief Judge Robb writes:
Bethany Quiring was injured in an automobile collision in Oklahoma. She filed suit in Oklahoma against the other driver for negligence and GEICO General Insurance Company (“GEICO”), seeking underinsured motorist benefits under a GEICO policy issued to Quiring's mother, who lives in Indiana. GEICO then filed this declaratory judgment action in Indiana, seeking a declaration that Quiring was not a resident of her mother's Indiana household and as such was not covered by her mother's policy. The trial court granted GEICO summary judgment. Quiring appeals, raising the following restated issues for our review: 1) whether the trial court abused its discretion in denying Quiring's motion to dismiss or stay the declaratory action in view of the pending, previously filed lawsuit in Oklahoma; 2) whether the trial court abused its discretion in denying Quiring's motion for a continuance of the summary judgment hearing to conduct discovery; 3) whether the trial court properly granted summary judgment that Quiring was not a resident of her mother's Indiana household; and 4) whether the trial court properly granted summary judgment that Quiring's mother's policy is an Indiana policy.

We conclude the trial court did not abuse its discretion in denying Quiring's motion to dismiss or stay, the designated evidence establishes as a matter of law that Quiring was not a resident of her mother's household at the time of the collision, and our resolution of these two issues renders the remaining issues immaterial. We therefore affirm the trial court's summary judgment.

NFP civil opinions today (7):

Michelle Hager v. Robert and Sue Faris (NFP)

Gabriel L. Hill v. Jana E. Hill (NFP)

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

Jennifer Curts v. David Curts (NFP)

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

The Matter of the 2008 Hancock County Tax Sale (NFP)

Robert Holland III v. Country Wide Home Loans, Inc. (NFP)

NFP criminal opinions today (14):

Michael Johnson v. State of Indiana (NFP)

Ronald Miller v. State of Indiana (NFP)

Jeremy Klakamp v. State of Indiana (NFP)

Tommy D. Ford v. State of Indiana (NFP)

Danielle L. Green v. State of Indiana (NFP)

Gary Moody v. State of Indiana (NFP)

J.G. v. State of Indiana (NFP)

Beverly A. Fussner v. State of Indiana (NFP)

James Hunter v. State of Indiana (NFP)

I.M. v. State of Indiana (NFP)

Andre L. Gorman v. State of Indiana (NFP)

Terry T. Miles, Sr. v. State of Indiana (NFP)

Dean C. Williams v. State of Indiana (NFP)

Aaron Davidson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 09, 2011
Posted to Ind. App.Ct. Decisions

Courts - Federal Court Rules That Police Cannot Use Warrants to Obtain Cell Phone Location of Person Who is Subject of Arrest Warrant

Prof. Orin Kerr writes at length about the 60-page, August 3rd, D.Md. opinion by Magistrate Judge Susan K. Gauvey today in The Volokh Conspirary. He begins:

Imagine the police have an arrest warrant for a crime suspect, and they want to find the suspect to arrest him. They happen to know the suspect’s cell phone number, so they want to go to the phone company and have the phone company tell the police the location of the suspect’s phone. The phone company refuses to let the police get that information without a warrant, so the police police go to a judge and apply for a search warrant based on the probable cause to believe that the location of the phone will help them execute the arrest warrant. Here’s the interesting question: Should the judge sign the warrant application and issue the warrant? Or should the judge deny the warrant application?

Posted by Marcia Oddi on Tuesday, August 09, 2011
Posted to Courts in general

Ind. Courts - "Appeals court will be asked to consider release of grand jury transcript in homicide case"

So reports Sophia Voravong today in the Lafayette Journal Courier. The issue is "whether suspects charged with murder in the April 2010 shooting death of Kory D. Rogers will get transcripts of grand jury testimony that led to indictments against them." From the story:

"... (T)his issue involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case," [Judge Randy Williams of Tippecanoe Superior Court 1] wrote in a recent order granting the prosecutor's motion [for interlocutory appeal].

Zaragoza, 31, of Mooresville and Thompson, 28, of Reelsville were charged in January with felony murder, murder, conspiracy to commit robbery and several other felonies after a Tippecanoe Circuit Court grand jury returned a combined 22 indictments against them.

In Indiana, criminal charges can be filed either through indictments returned by a grand jury or directly by the prosecutor assigned to review a police investigation. The latter is the typical method used in Tippecanoe County.

This particular grand jury consisted of six people and one alternate and convened over a three-month period this past fall and winter.

By law, grand juries meet and hear testimony in secret. Attorneys for the target witness - the person who's the subject of a possible indictment - can be present only for that person's testimony.

Because this case was decided by a grand jury, little information is known about how Zaragoza and Thompson became suspects.

Posted by Marcia Oddi on Tuesday, August 09, 2011
Posted to Indiana Courts

Ind. Courts - The Indiana Public Defender Commission’s annual report for 2010-2011 is now available online

Access it here.

Posted by Marcia Oddi on Tuesday, August 09, 2011
Posted to Indiana Courts

Law - "Kentucky looks like only state that denies access to recordings made by police-cruiser cameras"

See this August 8th entry from the Kentucky Law Blog.

Posted by Marcia Oddi on Tuesday, August 09, 2011
Posted to General Law Related

Environment - 2011 Edition of Indiana Environmental Statutes now available!

This is the new, 2011 edition of the annual publication, the Indiana Environmental Statutes, sponsored by the Environmental Law Section of the Indiana State Bar Association, that I edit and publish each year.

The 2011 General Assembly made many changes to the environmental laws!

It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.

This year the soft-bound volume is 570 pp. and costs $30.00 plus shipping (note that shipping is less if you pool orders).

Order online (a preview of several pages also is provided at this link).

Posted by Marcia Oddi on Tuesday, August 09, 2011
Posted to Environment | Indiana Law

Ind. Courts - Oral argument delayed in East Chicago Second Century case

Per an order issued yesterday by the COA, the oral argument in East Chicago Second Century, et al. v. RIH Acquisitions d/b/a Resorts East Chicago, et al., scheduled for tomorrow, Aug. 10th, has been postponed and no new date is yet set. From the order:

APPELLEE CITY OF EAST CHICAGO, INDIANA'S THIRD MOTION TO CONTINUE ORAL ARGUMENT IS GRANTED.

Posted by Marcia Oddi on Tuesday, August 09, 2011
Posted to Upcoming Oral Arguments

Monday, August 08, 2011

Law - Renton Washington Police Respond To Parody Videos Investigation

If they catch the person behind Mr. Fiddlesticks, they will arrest him...

Don't miss this KIRO TV video!

Transcript from an earlier story:

RENTON, Wash. -- The Renton City Prosecutor wants to send a cartoonist to jail for mocking the police department in a series of animated Internet videos.

The "South-Park"-style animations parody everything from officers having sex on duty to certain personnel getting promoted without necessary qualifications. While the city wants to criminalize the cartoons, First Amendment rights advocates say the move is an "extreme abuse of power."

Only KIRO Team 7 Investigative Reporter Chris Halsne holds a key document that really lays bare the city’s intent. The document was quietly filed in King County Superior Court last week. It’s a search warrant accusing an anonymous cartoon creator, going by the name of Mr. Fiddlesticks, of cyberstalking (RCW 9.61.260). The Renton Police Department and the local prosecutor got a judge to sign off as a way to uncover the name of whoever is behind the parodies. Halsne talked with three nationally respected legal experts who believe the use of the cyberstalking statute is likely stomping on the constitution.

The series of web-based short cartoons feature a mustachioed street cop and a short-haired female bureaucrat. The dry, at times, witty banter between the two touches on some embarrassing insider secrets, some of which seem to match up with internal affairs investigations on file within Renton PD.

ILB: For those geeks among you, I recognized immediately that these videos were made via Xtranormal, and you too can make them, if you have the time and patience! And talent enough to make them entertaining ... Check out this demo.

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to General Law Related

Ind. Decisions - Three new 7th Circuit Indiana opinions today, plus one released earlier

US v. Gray (ND Ind., Moody), a 13-page opinion by Judge Posner, begins:

A jury convicted Wynell Gray of Medicaid fraud, 18 U.S.C. § 1347, and conspiracy to defraud the U.S. government, id., § 371, and the judge sentenced her to 33 months in prison and ordered her to pay restitution of $846,115 to Indiana Medicaid. Her appeal presents a variety of issues, with emphasis on the government’s alleged violation of the Brady rule, which requires prosecutors in some circumstances to provide exculpatory evidence in their actual or constructive possession to the defendant. * * *

It may be helpful to distinguish between patent and latent exculpatory evidence. Patent exculpatory evidence is evidence that is exculpatory on its face; an example would be a confession by Suddoth, in the possession of the FBI, in which he took full responsibility for the fraud and described Gray as an innocent whom he had gulled. Such evidence is Brady material. Latent exculpatory evidence is evidence that requires processing or supplementation to be recognized as exculpatory. It is illustrated by the timestamp data in this case, the exculpatory character of which was unknown and unknowable until EDS wrote and ran the program that extracted the data from its database. * * *

To charge prosecutors with knowledge of exculpatory evidence buried in the computer databases of institutions that collect and store vast amounts of digitized data would be an unreasonable extension of the Brady rule. The courts, rightly in our view, have refused to make it. * * * Affirmed.

In US v. Rutledge (SD Ind., McKinney), a 14-page opinion, Judge Wood writes:

At the jury selection preceding Anthony Rutledge’s criminal trial, the prosecutor used peremptory challenges to strike the only two African- American members in the venire. Suspecting that these actions violated the Equal Protection Clause, Rutledge’s attorney objected to the strikes using the three-step procedure established in Batson v. Kentucky, 476 U.S. 79 (1986).

This appeal focuses solely on Batson’s third step, which requires the district court to make a finding of fact regarding the prosecutor’s credibility after the prosecutor has offered a race-neutral reason for the strike (step two). Here, the district court denied Rutledge’s Batson challenge after saying that the government’s reasons were “nonracial,” but without making any finding on the prosecutor’s credibility. As we have recently emphasized, “we cannot presume that the prosecutor’s race-neutral justification was credible simply because the district judge ultimately denied the challenge.” United States v. McMath, 559 F.3d 657, 666 (7th Cir. 2009). The district court must make an independent credibility determination at step three. Because we cannot find the necessary credibility finding in this record, we are unable at this stage to make an informed decision about the court’s decision to deny the Batson challenge. We therefore remand the case to the district court so that it can fill this void.

In US v. Joshua, Karras, and Allen, Jr. (ND Ind., Simon), a 17-page opinion, Judge Wood writes:
The Calumet Township Trustee’s Office (“Trustee’s Office”) is a political subdivision of Indiana that provides various social services to citizens of Gary and Griffith. Defendants Wanda Joshua, Ann Marie Karras, and Dozier T. Allen, Jr., ran the Office. Unfortunately, they did not do so honorably; instead, they engaged in a scheme to defraud the Office by taking substantial payments for work they did not perform. In particular, they commandeered checks made out to the Office by the Indiana Department of Workforce Development Services and, instead of using the funds for their intended purpose, they deposited them into their own personal bank accounts. This led to charges and convictions on two counts of mail fraud, in violation of 18 U.S.C. §§ 1341 and 1346. On appeal, the defendants raise three issues: first, that the evidence was insufficient on the mailing element of mail fraud, thereby requiring their acquittal; second, that the decision in Skilling v. United States, 130 S. Ct. 2896 (2010), requires us to set aside their convictions; and finally, that the district court improperly instructed the jury regarding their advice-of-counsel defense. Although we find the evidence of mailing thin, we conclude that it was enough to send the case to the jury. As neither of the other two points has merit, we therefore affirm.
Resendez v. Knight (SD Ind., Barker), posted by the 7th Circuit today, was released initially in typescript form on August 1st and summarized by the ILB here.

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to Ind. (7th Cir.) Decisions

Courts - Use of Rosie, a golden Retriever who helps young victims testifying in court, challenged

Don't miss the photo. NY Times reporter William Glaberson writes today in a story that begins:

POUGHKEEPSIE, N.Y. — Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.

When the trial ended in June with the father’s conviction, the teenager “was most grateful to Rosie above all,” said David A. Crenshaw, a psychologist who works with the teenager. “She just kept hugging Rosie.”

Now an appeal planned by the defense lawyers is placing Rosie at the heart of a legal debate that will test whether there will be more Rosies in courtrooms in New York and, possibly, other states.

Rosie is a golden retriever therapy dog who specializes in comforting people when they are under stress. Both prosecutors and defense lawyers have described her as adorable, though she has been known to slobber. Prosecutors here noted that she is also in the vanguard of a growing trial trend: in Arizona, Hawaii, Indiana, Idaho and some other states in the last few years, courts have allowed such trained dogs to offer children and other vulnerable witnesses nuzzling solace in front of juries.

The new role for dogs as testimony enablers can raise thorny legal questions, however, with defense lawyers arguing that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract — whether a witness is telling the truth or not — and some prosecutors insisting that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Karamchand Paul, et al. v. Home Bank S.B. , a 15-page opinion, Judge Baker writes:

Here, we are confronted with whether the integration clause in the guaranty of one loan released and discharged the guaranty of another loan. Additionally, we are asked to determine whether a financial institution is required to advise a client through a commercial transaction or recommend that the client seek legal counsel.

Inasmuch as isolating one paragraph of one document in a multidocument, complex commercial transaction would defeat the intended effect of the loan agreements, we conclude that the guaranty of one loan did not integrate and, consequently, release the guarantors of liability under a different loan. Additionally, we decline to require financial institutions to counsel educated clients through an arm's length commercial transaction or suggest that they seek legal representation.

Appellants-defendants Dr. Karamchand Paul, Dr. Deovrat Singh, and Dr. Ibad Ansari (collectively, “the Appellants”) appeal the trial court's grant of summary judgment in favor of appellee-plaintiff Home Bank, SB (Home Bank) and its denial of summary judgment in their favor. Finding no error, we affirm.

NFP civil opinions today (3):

Brad Curtis and Rhonda Curtis v. The National Insurance Group and Celina Insurance Group (NFP)

Robert Fiedler, et al. v. Indiana Office of Environmental Adjudication (NFP)

B.G. v. J.B. (NFP)

NFP criminal opinions today (6):

Paul Davis v. State of Indiana (NFP)

Leroy H. Hall v. State of Indiana (NFP)

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

Joseph Lundy v. State of Indiana (NFP)

Alex Callison v. State of Indiana (NFP)

Jerome Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to Ind. App.Ct. Decisions

Courts - “A death warrant cannot trump the Constitution.”

That quote is from Ohio federal judge Gregory L. Frost, in this 60-page July 7, 2011 ruling staying the execution of the execution of Kenneth Smith. Here is the Sentencing Law blog summary of that order from July 7th.

Today the NY Times has this editorial; it also quotes from Judge Frost's ruling, including:

“It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not,” Judge Gregory Frost wrote in a legal opinion last month. The judge observed bluntly, “This is nonsense.”

To the judge, “Ohio’s execution policy now embraces a nearly unlimited capacity for deviation from the core or most critical execution procedures.” The state used to insist that its “written protocol” setting out those procedures had “the force of law.” In this case, the state presented the protocol as guidelines that could carelessly be “ignored.”

The opinion listed several important ways that Ohio has violated its own rules based on facts presented to the court. The state has let into its execution chamber someone who was not a member of the official execution team, a doctor who tried unsuccessfully to insert an intravenous line into an inmate’s arm. It has failed to document the appropriate preparation of the drug used. And it has failed to have two medical-team members present at an execution, to ensure that the injection was properly administered. The judge concluded about the state’s serial errors, “A death warrant cannot trump the Constitution.”

The NY Times links to this worth reading, Jan. 26, 2011 Cleveland Plain Dealer guest column by Paul E. Pfeifer, who is senior justice of the Ohio Supreme Court. A sample:
I helped craft the law, and I have helped enforce it. From my rather unique perspective, I have come to the conclusion that we are not well served by our ongoing attachment to capital punishment.

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to Courts in general

Ind. Decisions - Transfer list for week ending August 5, 2011

Here is the Clerk's transfer list for the week ending August 5, 2011. It is one page (and 16 cases) long. No transfers were granted.

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to Indiana Transfer Lists

Courts - "3rd Circuit Limits Use of Fake Names in Litigation"

Via AppellateDaily, this lengthy story from The Legal Intelligencer, reported by Shannon P. Duffy, that begins:

Adopting a nine-factor balancing test for deciding when litigants may keep their real names secret, the 3rd U.S. Circuit Court of Appeals has ruled that pseudonyms should be reserved for those who can show a "reasonable" fear of "severe" harm.

In a rare move, the 3rd Circuit adopted as its own a test that was announced by the late U.S. District Judge Clarence C. Newcomer in his 1997 decision in Doe v. Provident Life and Accident Insurance Co.

The appellate panel found that trial judges have been relying on Newcomer's test for more than two decades.

"As district courts have been able to apply the Provident Life test and it does not conflict with the tests that have been adopted by our sister circuits, we see no value in upsetting its application. Accordingly, we endorse it," U.S. Circuit Judge D. Michael Fisher wrote in his 15-page opinion in Doe v. Megless.

ILB: Here is the 15-page, 3rd Circuit opinion.

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to Courts in general

Courts - "New California law bans jurors' texting, tweeting"

California did it by statute, according to this AP story - some quotes:

A new state law clarifies that jurors are prohibited from texting, tweeting and using smart phones to discuss or research cases. * * *

The bill adds to existing jury instructions. It specifies that jurors consider only facts presented to them in court without doing their own research or communicating outside the jury room.

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to Courts in general

Ind. Courts - "You can't keep a good building down": The Jefferson County Courthouse in Madison reopens

Peggy Vlerebome of the Madison Courier has the happy story, along with a striking photo apparently taken over two years, on May 20, 2009, when smoke engulfed the cupola. From the beginning of the long report:

The repaired Courthouse looks much like it did the afternoon of May 20, 2009, before a spark from a welder's torch ignited wood during restoration. The resulting fire destroyed the roof, the cupola and the dome.

Water, smoke and weather damage resulted in the inside of the building being mostly gutted and rebuilt.

The end result is a Courthouse that has had the same appearance for 100 years, but does not look like the original in 1855 or long-ago revisions.

Link Ludington, an architectural historian who wrote a study of the Courthouse in 1998, said that for the most part the repairs are true to what was there before. An expert looking closely would see minor differences, but given limitations put on the work by the county's insurance carrier, those differences are insignificant, he said.

That the Courthouse has had the same appearance for 100 years makes it acceptable to keep that look and not try to go back to the original, he said.

There was a major rebuilding of the Courthouse before the Civil War after fire destroyed the cupola, the roof and much of the interior on Feb. 20, 1859. The county had been in its new Courthouse for a little less than three and a half years before the fire.

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to Indiana Courts

Law - "Regulatory Hide and Seek: What Agencies Can (and Can’t) Do to Limit Judicial Review "

This looks interesting. Legal Theory Blog highlights the new SSRN posting. From the abstract:

Many authors discuss judicial oversight of agency actions. Our subject, which is less well examined, is agencies’ role in modulating that oversight. We consider cases in which the timing or form of an agency action has curtailed judicial review of the agency’s policy choices. In some such cases, the agency’s choice of form deprived the court of statutory or Article III jurisdiction; in others, the court chose to delay or deny review to avoid interfering with agency policy development. Despite these differences, though, all such “reviewability” cases pose important constitutional questions about the degree to which an agency should be able to limit judicial oversight of its activities.

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to General Law Related

Ind. Law - Indiana utilities ordered to alter tree trimming practices, but it is not over yet

Updating this August 1, 2011 ILB entry, citing an Aug. 1st story by Maureen Hayden in the Terre Haute Trib-Star, headlined "IURC seeks to change tree-trimming practices: Recent [111-page IURC] ruling gives homeowners more say in how utilities handle ‘vegetation management,’" one might have thought the long battle was over. Not so, reports Hayden in this long August 7th CNHI story, here in the Jeffersonville News & Tribune. Some quotes:

But the story doesn’t end that simply. The IURC ruling has some caveats in it that are troubling to [founder of the Indiana Tree Alliance, Charlie] Goodman, and it turns out that the ruling was just the first step in a long process that is supposed to lead to a “code of conduct” for how the investor-owned utilities approach what’s known as “vegetation management.”

A draft of that code is now in the making and there are months to go before it’s finalized. That means there are still battles ahead. One of them will likely involve IURC wording that gives utilities more power in their tree-trimming practices in the event of an emergency or to protect “public safety” — both of which are undefined. Another may involve penalties — which so far are absent — for utilities that violate the code.

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to Indiana Law

Law - "Metro Detroit attorneys call on billboards to drive up their client lists"

Gotta love this long story from the Detroit Free Press, complete with plenty of billboard photos. Reported by David Ashenfelter, here is a sample:

Zamler advertises on large billboards. The Cochran firm uses small, eye-level billboards along sidewalks in Detroit.

Many lawyer billboards are understated, like those of Royal Oak attorney Todd Flood. His say: "When it matters ... floodlaw.com."

Flood, a former Wayne County assistant prosecutor, said he wanted classy, toned-down billboards so motorists would know that he and his colleagues at Flood, Lanctot, Connor and Stablein run a first-rate general law practice.

Other billboards virtually scream at passersby.

Those of Bloomfield Hills attorney Malgorzata (Margaret) Lorelli say: "Personal Injury? One call: 1-855-2-WIN-ALL."

The boards for a law firm advertised as 1-866-9-LAW-HELP cry out: "AUTO ACCIDENT INJURY? WE SUE BIG!"

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to General Law Related

Ind. Courts - Vouchers before the bench August 11th

From the Fort Wayne Journal Gazette's "The Week Ahead" column this morning:

Indiana’s new voucher law goes before a judge in Indianapolis this week, leaving precious little time for a ruling before school starts on whether to stop implementation of the law.

The judge will consider whether those trying to stop the law are likely to prevail and whether they will suffer irreparable harm if the law isn’t stopped, at least temporarily.

The ruling will focus on two areas of the Indiana Constitution:

• Whether the tax-funded vouchers unconstitutionally finance religious institutions or, allowably, finance parental choice.

• Whether the substantial state aid for private schools interferes with the constitutional mandate to provide a “general and uniform system of Common Schools.”

Arguments on the second point may well be similar to the many arguments over the years regarding whether the two parts of the Second Amendment to the U.S. Constitution mean the right to bear arms is a collective right only (for a militia) or an individual right. The “common schools” language (in Article 8, Section 1) also requires the state “to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement.”

Advocates will argue that vouchers are a “suitable means” to do so, while opponents will argue that the language cannot be separated from the requirement for common public schools.

ILB: The case was assigned to Judge Michael D. Keele, Marion Superior Court 7 and Aug. 11 was the date set for a hearing on the plaintiffs' request for a preliminary injunction. You can find background, and the documents in the case, here and here.

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to Indiana Courts

Ind. Law - "No tickets for texting and driving, yet: Area police say ban is difficult to enforce"

Sophia Voravong has the story in today's Lafayette Journal Courier. Some quotes:

A month after an Indiana law took effect that bans drivers on Indiana roads from typing, sending or reading text messages and emails on their cell phones, police departments here have yet to issue a ticket.

One of the top reasons?

The law, as currently written, is difficult to enforce, said Lt. Gary Sparger, commander of the West Lafayette Police Department's patrol division.

"The fact of the matter is, it's pretty difficult to tell what a person is doing with a phone," he said. "The same movements you do to text on a phone ... you do for other applications.

"You have to be certain if you're pulling someone over in a traffic stop."

Deputy Chief Dave Payne of the Lafayette Police Department confirmed last week that his agency also has not issued any texting-while-driving tickets.

Neither has the Indiana State Police post in Lafayette, said Sgt. Kim Riley. The Lafayette post serves Tippecanoe and seven surrounding counties. * * *

Sparger said he believes the law was designed to encourage "voluntary compliance" -- in other words, people will not text while driving because they know of the potential consequences.

He said he has seen some drivers in West Lafayette stop and pull over to send a text or email since the law took effect.

Posted by Marcia Oddi on Monday, August 08, 2011
Posted to Indiana Law

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

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

From Sunday, August 7, 2011:

From Saturday, August 6th, 2011:

From late Friday, August 5th, 2011:

Posted by Marcia Oddi on Monday, August 08, 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 8/8/11):

Next week's oral arguments before the Supreme Court (week of 8/15/11):

Webcasts of Supreme Court oral arguments are available here.




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

Wednesday, August 10th

Next week's oral arguments before the Court of Appeals (week of 8/15/11):

Next Tuesday, August 16th

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, August 08, 2011
Posted to Upcoming Oral Arguments

Sunday, August 07, 2011

Ind. Gov't. - "Tax setup creates school disparity: Poor districts need higher rates to get by"

Dan Stockman of the Fort Wayne Journal Gazette has a major story in the Sunday Fort Wayne Journal Gazette that begins:

FORT WAYNE – When it comes to schools, property tax payers in some of the poorest districts pay rates up to four times higher than those in some of the wealthiest districts, a new analysis of state data shows. And property tax experts say recent changes in state law may make that disparity even worse. * * *

The Journal Gazette found, even after years of tinkering, almost a quarter of the state’s school districts could be classified as having high incomes and low tax rates or low incomes and high tax rates – with two thirds of them being in the latter category.

“If you’re going to build a $20 million school, it costs the same $20 million in a rich district as it does in a poor district, but the taxpayers in a rich district will each have to pay a smaller share of that cost and taxpayers in a poor district will have to pay a greater share,” said Purdue University professor Larry DeBoer, one of the state’s foremost experts on property taxes. “There really are tremendous differences in assessed values.”

Those differences in assessed property values are what lead to the disparities inherent in any property tax system: A wealthy area, with expensive homes, upscale businesses, large factories and other valuable land, can have a huge assessed value; while a poor area with rundown housing and few businesses may have a relatively small taxable value.

That leaves the poor area paying more per dollar of property value to create the same revenue as the wealthy area.

For example, taxpayers in the district with the highest local tax rate in the state, Logansport Community School Corp., paid 4.17 cents per dollar of assessed value in local taxes for schools in 2008; those in Carmel Clay Schools paid 1.03 cents, less than a quarter of the Logansport rate.

Per-capita incomes, meanwhile, were $18,467 in Logansport school district, but $41,359 in Carmel Clay – more than double Logansport’s and easily the highest in the state.

The disparity is so pronounced, the newspaper found, that in 2008 – the last year under the old system and the last year for which comparable district data was available – if taxpayers in Carmel Clay had paid the Logansport rate, they could not only turn down the $18.6 million in state aid the district received that year, but also give an additional $341 million to the state to help finance other schools.

That could cover the entire amount of state aid given that year to Fort Wayne Community Schools, plus Northwest Allen, Southwest Allen and East Allen County Schools, with almost $140 million left over.

Read on ...

Posted by Marcia Oddi on Sunday, August 07, 2011
Posted to Indiana Government

Ind. Courts - "Lake Judge Stefaniak said he would not tolerate lawyers using race as an excuse to exclude whites from a jury"

That is a quote from a long story today in the NWI Times, reported by Bill Dolan, and headlined "Judge vows racial justice for murder defendant and prosecutors." The story begins:

CROWN POINT | Lake County's race history could be in the docket next month along with a Gary man going on trial for death penalty murder.

Lake Criminal Court Judge Thomas Stefaniak Jr., lawyers for Kevin Isom and the prosecutor's office have spent more than four months combing through a randomly selected list of 500 county residents for an impartial jury.

Isom is pleading not guilty to charges he fatally shot his wife of 12 years, Cassandra Isom, 40, and her two children, Michael Moore, 16, and Ci'Andria Cole, 13, on Aug. 6, 2007, at the family's Lakeshore Dunes apartment in Gary's Miller section.

The prosecutor will seek the death penalty when the trial begins Sept. 26.

Stefaniak acknowledged this week from the bench during a pretrial hearing jury selection will be difficult given the life-or-death stakes involved, and that Isom is a black man in a county where a debate remains whether he can get a fair verdict and sentence from the majority of county white residents.

To prove his zeal to provide a jury pool with a fair cross-section of the county's minority population, Stefaniak has been taking what he calls unprecedented steps.

He ordered two black women in that group of 500 who hadn't completed juror questionnaires into his courtroom Thursday to explain why. He ordered the arrest of one of them who didn't appear at Thursday's hearing but who showed up. Both filled out their questionnaires.

The judge further ordered his staff to investigate the demographics of an additional 44 no-shows.

"This is above and beyond the call of duty, but the more people who fill out jury qualification forms from this random pool gives the defendant the greatest chance of having a jury of his peers and to take prospective appeal issues off the table," Stefaniak said.

Stefaniak said he would not tolerate lawyers using race as an excuse to exclude whites from a jury.

Here is a link to the 2009 Indiana Supreme Court decision in Darryl Jeter v. State, which is referenced in the full story.

Posted by Marcia Oddi on Sunday, August 07, 2011
Posted to Indiana Courts

Ind. Gov't. - "Indiana casinos struggling after years of growth"

Grace Schneider's lengthy story today in the Louisville Courier Journal begins:

Indiana's nearly $3 billion a year gaming industry is caught in a spiral of declining revenues and lower attendance because of the sluggish economy and bad weather — and faces the threat of casinos in neighboring states on the horizon.

Admissions at Indiana's 11 casinos dropped nearly 7 percent in the first half of 2011, compared with the same period last year.

And revenues at the casinos and two Indianapolis-area racetracks with slot machines dipped to the lowest point in three years, falling more than $22 million to $ 1.39 billion during the first half of the year, compared with 2010.

Ed Feigenbaum, publisher of an Indianapolis-based newsletter that tracks the state's gambling industry, predicts that, barring a big summer rally, Indiana's 13 casino properties will gross $2.78 billion — which would be an unprecedented second straight yearly decline.

Casino executives blame the downturn on the recession, saying that working people, struggling with job losses and higher grocery and gas prices, are playing the slots and blackjack less often.

“It goes back to the economy. It goes to gas prices, and the use of a person's income,” said Jim Brown, president of Hoosier Park Racing and Casino and the chairman of the Casino Association of Indiana, a trade group that represents the state's casino license holders.

Posted by Marcia Oddi on Sunday, August 07, 2011
Posted to Indiana Government

Ind. Courts - "A year later, crash still reverberates: Bisard case changed many things, but the grief remains"

The heading is from a long story Saturday by Jon Murray in the Indianapolis Star. Read it here.

For background, particularly on the blood alcohol issue, see this long list of ILB entries.

Posted by Marcia Oddi on Sunday, August 07, 2011
Posted to Indiana Courts

Courts - Next SCOTUS nominee? "Democrats simply don’t have many federal appellate judges to choose from."

That is a quote from a column in today's NY Times magazine, written by Emily Bazelon, a senior editor at Slate and the Truman Capote law-and-media fellow at Yale Law School.

Posted by Marcia Oddi on Sunday, August 07, 2011
Posted to Courts in general

Ind. Courts - "When did rape stop being rape?"

Recall the Muncie Central incident where "School officials did not call police in after the victim reported having been raped in a school restroom, but instead had her sit in the principal's office for two and a half hours," reported in this March 8, 2011 ILB entry, headed "Ex-Muncie Central principal charged over handling of rape case."

In this longish Aug. 1, 2011 Muncie Star-Press story headed "Accused Central High School rapist pleads guilty," Douglas Walker reported:

MUNCIE -- A soft-spoken Steven B. Moore on Monday admitted to sexually assaulting a classmate in a Central High School restroom last November.

Moore, now 17, pleaded guilty to sexual battery and criminal confinement on Monday after his defense attorney, Jacob Dunnuck, negotiated a plea agreement with Deputy Prosecutor Eric Hoffman.

Those criminal charges -- which when combined carry a maximum 11-year prison term -- essentially replace the rape charge that had been pending against Moore for more than eight months, and carried a possible 20-year sentence.

Delaware Circuit Court 5 Judge Thomas Cannon Jr. took the deal under advisement, and tentatively set sentencing for Aug. 23.

The victim's mother -- who attended Monday's hearing -- has signed off on the agreement, Hoffman said in a press release.

Today Lisa Nellessen-Lara, who is executive editor of The Star Press, writes in a long opinion piece headed "When did rape stop being rape?" - some quotes:
Don't get me wrong. It's not the sentence I have an issue with, nor is this issue about Moore. I'll give him the benefit of the doubt and say he made the world's most horrible decision because he was young and impressionable and stupid -- rather than the evil many would say someone must be to commit such a heartless crime.

This is about the conflicting message this case -- and others like it -- send to our young people.

After decades of "no means no," these kids are left with "no kind of means no, but not completely." * * *

Certainly the young lady in this case will never be the same. She was attacked, abandoned, treated like a criminal, belittled and then left to pick up the pieces of her life. If she were to get anything out of this plea, it would be that she did not have to face her attacker in court.

Steven Moore faces 11 years in prison and a lifetime of -- one hopes -- remorse.

But it's the faces of the laughing, jeering boys and girls outside Central High School, who protested Moore's arrest, that truly haunt me. What lesson did they learn? Because at the end of the day, Indiana law gave Moore a bit of an out. And those kids know it. They'll be counting on an out, as well, the next time they "get out of hand."

Posted by Marcia Oddi on Sunday, August 07, 2011
Posted to Indiana Courts

Ind. Courts - "Seeking death penalty in Indiana is expensive, often unsuccessful"

Some quotes from Mark Wilson's very long story (that I can't even begin to summarize) in the Sunday Evansville Courier & Press:

EVANSVILLE — Seeking the death penalty in Indiana has become an expensive proposition, and one that often doesn't end with execution.

Only 16 percent of Indiana's death penalty cases — 30 out of 188 — filed from 1990 through 2009 ended in death sentences, according to the Indiana Public Defender Council.

Such statistics have given death penalty foes a solid economic argument, and even supporters of the death penalty are calling for reforms to control skyrocketing defense costs often born by local and state governments.

Vanderburgh County's record is as mixed as the state's. In the last two decades the county spent more than $800,000 defending death penalty cases, each more expensive than the last.

Only one of the county's last five death penalty trials resulted in an execution.

"If there is something broken it is the courts' allowance of a blank check for the defense," said Clark County Prosecutor, Steven Stewart, a recognized death penalty expert in the state.

Indiana criminal procedure allows defense attorneys to make expense requests to trial judges without input from prosecutors.

"The No. 1 defense strategy is to make it as expensive and burdensome as they can. That is just a fact of life. That is the way it is," Stewart said.

The risk for judges in not allowing defense requests, he said, is that the refusal might become grounds for a successful appeal. * * *

Although Indiana reimburses counties for half of the defense costs for death penalty cases, those costs can still be crushing.

Indiana began partially reimbursing counties for public defender costs in felony and death penalty cases in 1990. Since then, Vanderburgh County footed the bill to defend four of the five death penalty cases in that time and for the direct appeals of all five. The family of one defendant, Paul McManus, paid his trial cost.

However, only the trial of Matthew Eric Wrinkles, convicted of a 1994 triple homicide, ended in an execution. Vanderburgh's remaining death penalty cases — Daniel Wilkes, Paul McManus, Vincent Prowell and Timothy Anderson — have either resulted in prison sentences or are still under appeal. * * *

The state Supreme Court dictates the conduct of capital cases in Rule 24 of the Indiana Rules of Criminal Procedure.

The rule requires two public defenders to represent defendants.

"Capital cases are very time consuming and there is a lot at stake, obviously," said Stephen Owens, Vanderburgh County's chief public defender.

Those attorneys must be paid hourly or be a salaried capital public defender. The court periodically reviews the hourly rate, which is $109 for cases filed since Jan. 1, 2011. The hourly rate for the Weisheit trial attorneys is $106.

"Attorneys' fees eat up a lot of the money," Owens said.

The challenge of finding a qualified attorney

The rule sets out specific qualifications for both lead counsels and co-counsels. In addition to experience, it requires attorneys to complete 12 hours of training every two years.

The expense and time away from work, added to the strain and time commitment of defending capital cases, are powerful disincentives for attorneys to shy away from taking such cases.

Owens encountered that problem last year when it became necessary to find public defenders for Weisheit.

For some background, see this July 8, 2011 ILB entry headed "Jeffrey Weisheit likely to get new lead defense attorney on Friday", and this one from Nov. 29, 2010, headed "More on monetary costs of the death penalty in Indiana."

Posted by Marcia Oddi on Sunday, August 07, 2011
Posted to Indiana Courts

Ind. Courts - "Old drug forfeiture cases never die, nor fade away"

An article by Ball State prof Larry Riley in the Sunday Muncie Star-Press, relating the circumstances of one "drug forfeiture" case in Delaware County, tells a fairly incredible but true tale that begins:

Drug forfeiture cases from years past just keep resurrecting themselves in Delaware County.

We experienced a litany of local forfeitures of money and property by defendants following drug-related arrests and seizures from the mid-1990s until the process was ordered changed by Delaware County judges in 2008.

Meanwhile, unfinished -- or sometimes seemingly finished -- cases keep coming up, and one has emerged in a novel way.

Posted by Marcia Oddi on Sunday, August 07, 2011
Posted to Indiana Courts

Ind. Courts - "How's trial going? Ask the 'shadow jurors'"

From Mary Kate Malone's long story in Saturday's South Bend Tribune:

SOUTH BEND - With $10 million on the line in a high-profile medical malpractice trial in St. Joseph Circuit Court last week, a defense attorney deployed a tactic even the judge had never seen before.

Norris Cunningham hired six ordinary residents to be “shadow jurors.”

Carefully selected by a jury consulting firm, they were paid to sit in the spectator gallery and observe the trial. Cunningham would rely on their feedback as he defended Florida-based Interim Healthcare Inc., using their impressions to gauge the thoughts of the real jury.

“We thought it would be valuable,” Cunningham said. “And it turned out they added a good deal to the case.”

The shadow jurors were local residents carefully selected from a pool of applicants. The applicants reportedly responded to an ad for an opinion research /focus group and were said to have been paid $150 per day.

When the Lopez v. Interim Healthcare Inc. trial ended abruptly with a midtrial, out-of-court settlement on July 30, the shadow jurors, like the real jurors, filed out of the courtroom and resumed their daily lives.

The shadow jurors signed confidentiality agreements and declined to speak to The Tribune for this story.

It’s likely no one, except for the attorneys, will ever know what role, if any, the feedback from the shadow jurors played in the decision to settle rather than proceed. * * *

Minutes before the jury was brought in for opening statements, Cunningham told the court about his shadow jury. Thomas Doehrman, representing the Lopezes, objected.

Doehrman wanted assurance that there would be no interaction between the real jurors and the “shadows.”

Cunningham responded that there would be no cross-communication.

Noting that anyone can attend a trial in open court, St. Joseph Circuit Court Judge Michael Gotsch approved their presence, and the shadow jurors entered the room at the same time as the jury.

The trial was expected to last the entire week of July 25, and possibly into the following week. Doehrman called seven witnesses, including medical experts who testified about the brain trauma 2-year-old Jonas Lopez sustained, and the costs of caring for the boy long term.

But early Thursday, the trial ended suddenly with an out-of-court settlement.

The agreement came after an emotional day of testimony from the boy’s mother, Brandi Lopez, Doehrman’s last witness.

It is not clear which side moved for a settlement, or what may have caused it.

But Cunningham, speaking generally, said the opinions of shadow jurors can carry great sway with him, and have, in the past, led to major changes in his trial strategy.

Posted by Marcia Oddi on Sunday, August 07, 2011
Posted to Indiana Courts

Saturday, August 06, 2011

Ind. Gov't - More on "Goldsmith Quits as NYC Deputy Mayor After 14 Months"

Long, interesting, and perhaps definitive story in Friday's NY Times, headed "Bloomberg Deputy Hired With Much Fanfare Steps Down," reported by Javier C. Hernandez and Michael Barvaro. Earlier ILB entry here.

Posted by Marcia Oddi on Saturday, August 06, 2011
Posted to Indiana Government

Ind. Gov. - State settles 1998 "federal lawsuit accusing the DNR of violating the federal Clean Water Act, with the state paying $8.5 million, in part, to clean up a mess"

Rebecca S. Green has the story today in the Fort Wayne Journal Gazette. Some quotes:

More than a dozen years after a fish kill along the Fawn River in Steuben County, a federal lawsuit accusing the Indiana DNR of violating the federal Clean Water Act has been settled, with the state paying $8.5 million, in part, to clean up a mess.

Under the terms of the settlement, filed a few weeks ago in the U.S. District Court in Fort Wayne, the Indiana Department of Natural Resources admits no wrongdoing.

But the state is footing the bill for the lawsuit and for the cleanup of what the plaintiffs claimed as a mess of mud filling up what was once described by the plaintiffs’ attorney as “a beautiful, rare gem.”

In May 2000, several Steuben County residents sued then-Gov. Frank O’Bannon and the DNR for allegedly releasing water from a mill pond, causing the death of 157 fish in May 1998, according to the state, and filling the river with mud.

The twin suits, filed in state and federal court, accused the DNR of an “act of environmental eco-terrorism,” by purposefully flooding the Fawn River with sediment and debris.

The recent settlement ends both lawsuits, with the state court lawsuit, filed in Allen County, being dismissed and both sides responsible for paying their own costs. * * *

According to the settlement, $472,000 will go to satisfy the residents’ claims made in the Allen County case.

And apart from attorneys’ fees, the remaining money will go to clean up the Fawn River from the DNR Fawn River Fish Hatchery dam to the Greenfield Mills dam.

The residents will have full discretion to manage all aspects of the cleanup, including obtaining permits, investing the money and monitoring the area from further damage, according to the settlement.

Half a million dollars will go to clean up the Greenfield Mills pond, with the rest for cleaning and fixing the river down to the pond, according to the settlement.

In coming to the agreement, the plaintiffs acknowledge that damages cannot be recovered and all the money, except for attorneys’ fees, is solely for the purpose of cleaning up the river.

Posted by Marcia Oddi on Saturday, August 06, 2011
Posted to Environment | Ind Fed D.Ct. Decisions | Indiana Government

Ind. Gov't. - "Campaign gift limits violate state law, AG opinion says" [Updated]

Updating three earlier ILB entries, all headed "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," Fort Wayne Journal Gazette reporter Benjamin Lanka writes today in a long story that begins:

Indiana Attorney General Greg Zoeller's office believes a Fort Wayne measure to limit political contributions from city contractors violates state law, and it likely dooms the proposal to failure.

Matthew J. Light, Zoeller's chief counsel, issued a three-page opinion Friday outlining why a proposal from Councilwoman Liz Brown, R-at large, violates state law. He wrote that because the state regulates elections and campaigns, local governments have no authority to do so.

"It is my opinion that the proposed ordinance, if enacted by the city of Fort Wayne, would be invalid as an attempt to regulate, without specific statutory authority, conduct which is regulated by a state agency," Light wrote.

Brown's bill was intended to prevent businesses who donate to city politicians from being able to win contracts with the city. She tried to introduce it more than a month ago, but it has been dogged by questions of its legality from the beginning. The state election division has already released a legal opinion similar to that from the attorney general's office.

The FWJG includes a link to the 3-page AG opinion, which is headed "Privileged and Confidential, Attorney-Client Communication, Advisory Letter #11-15."

[Updated at 3:50 pm] This July 19th ILB entry referenced a July 15th story headed "Legal challenges can cost taxpayers: Suits involving Medicaid, immigration have been filed," about the two suits currently pending in federal court, both arising from legislation passed by the last General Assembly, where some wondered why the AG did not advise about potential legal issues with the bills before they were passed into law. From the story:

[AG spokesman Bryan] 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.

Here, however, advice has been given by the AG concerning a pending local ordinance...

For commentary relating to the content of the AG's opinion on the proposed Fort Wayne ordinance, see this entry today from Paul Ogden on Politics.

Posted by Marcia Oddi on Saturday, August 06, 2011
Posted to Indiana Government

Ind. Decisions - "Foreclosure case sparks judge rebuke"

Yesterday's COA opinion in the case of City Savings Bank n/k/a LaPorte Savings Bank v. Eby Construction, LLC (ILB summary here) is the subject of this story today in the NWI Times, reported by Dan Carden, that concludes:

After a partial payment by the trust, the construction company was still owed $308,746.95. It filed a mechanic's lien on the property and sued to foreclose.

LaPorte Savings Bank then also filed for foreclosure and argued to Judge William Alexa that state law required him to find the bank's mortgage foreclosure takes priority over Eby's mechanic's lien.

But the judge said because the bank had issued another loan to the trust that was used to pay another contractor while Eby went unpaid, the bank had "unclean hands" and said "public policy" demanded Eby's lien take priority over the bank's mortgage in this case.

In a 3-0 decision, the appeals court strongly disagreed, noting "the trial court acknowledged the clear import of our statutory and case law, yet opted to reach a different result under the guise of equity and public policy."

"The mortgages are superior," the appeals court said.

Posted by Marcia Oddi on Saturday, August 06, 2011
Posted to Ind. App.Ct. Decisions

Friday, August 05, 2011

Law - Mean girls and social media

In a Slate review of the revised edition of Rachel Simmons' "Odd Girl Out: The Hidden Culture of Aggression in Girls," Jordan Kisner writes:

The new Odd Girl Out also addresses the changes brought about by technology. Facebook and sexting didn’t exist in 2002, but now they dominate the way girls conceptualize and conduct their friendships. Simmons tackles social media’s effect on teen girls in two new chapters that cover cyberbullying, privacy, and what parents can do to help their daughters negotiate the slippery world of online interaction. What she describes is frankly horrifying, an inescapable maelstrom of hormones, insecurity, and cruelty enabled by the Internet’s tendency to erase inhibitions and accountability. Refreshingly, though, Simmons refuses to see girls as victims of new technology. “Social media may magnify emotions and facilitate cruelty, but it does not ‘make’ girls act a particular way,” she writes. The solution, she suggests, isn’t to log off but to develop strategies for communicating healthily, just like in real-time interactions.

Posted by Marcia Oddi on Friday, August 05, 2011
Posted to General Law Related

Ind. Decisions - One Indiana case and three other opinions of interest from the 7th Crrcuit today

In the Indiana case, Matthews-Sheets v. Comm. of Social Security (SD Ind., Lawrence), a 12-page opinion, Judge Posner writes:

After prevailing in this suit for social security disability benefits, the plaintiff asked for an award of attorney’s fees of $25,200. The district judge cut the amount down to $6,625. He thought the hours her lawyer had spent on the case excessive and sliced them from 112 or 116 (we’re about to see that it’s unclear how many hours the lawyer was seeking compensation for) to 53. Although the judge’s explanation for this drastic cut was skimpy, it was skimpy in part because he had simply adopted objections made by the Social Security Administration’s lawyer—and those objections were compelling. * * *

The judge also thought the hourly rate the lawyer was seeking—$225—excessive, and cut that down to the rate specified in the statute (the presumptive ceiling, as we’re about to see)—$125. Although the lawyer’s argument for a higher rate was weak, the judge rejected it on an improper ground. * * * That said, a fee of $125 for legal services rendered in 2009 in a social security disability appeal seems awfully low, especially when multiplied by the cut-down level of hours allowed by the district judge to yield a total fee award of $6,625. Can a contested social security case really be litigated to judgment in a district court at a cost in legal fees of so minute an amount? Even at $170 an hour the total fee award would be only $9,010. In the circumstances, as we have explained, it was not improper for the lawyer to request the cost of living increase for the first time in his reply brief. The judge’s stated reason for rejecting the enhancement— that the request was untimely—was thus invalid. His mistake in invoking forfeiture, and the meagerness of the fee award, which resulted in part from that mistake, persuade us that he should take a further look at the plaintiff’s request for a cost of living adjustment. * * *

When inflation is not a factor, the lawyer does have to show that there is something special about the particular type of case that justifies the higher fee. That special factor has not been invoked in this case.

And so on remand the plaintiff’s lawyer will have to show that without a cost of living increase that would bring the fee award up to $170 per hour, a lawyer capable of competently handling the challenge that his client mounted to the denial of social security disability benefits could not be found in the relevant geographical area to handle such a case.

Here are some snippets from the opinions in the three interesting non-Indiana cases:

Fields, et al. v. Smith, et al. (ED Wis.)

In this appeal, we are asked to review the decision of the district court invalidating a Wisconsin state statute which prohibits the Wisconsin Department of Corrections (“DOC”) from providing transgender inmates with certain medical treatments. * * *

Having determined that the district court properly held that Act 105 violates the Eighth Amendment, both on its face and as applied to plaintiffs, we need not address the district court’s alternate holding that the law violates the Equal Protection Clause.

Bd. of Regents, U. of Wis. v. Phoenix International Software (WD Wis.)
This case presents complex questions about the law of trademark and the law of sovereign immunity, as the latter applies to a state university. The contending parties are Phoenix International Software, Inc., a small software developer, and the Board of Regents of the University of Wisconsin System, which is an arm of the state of Wisconsin. Their dispute centers around two computer programs, each of which holds the registered trademark “CONDOR.” We delve into the details of the case below. For now, it is enough to say that two central issues have occupied us on appeal: first, the question whether the likelihood of confusion between Wisconsin’s CONDOR mark and Phoenix’s identical mark could be ascertained in summary judgment proceedings; and second, whether Wisconsin is entitled to immunity from Phoenix’s federal counterclaims. When we first heard this case, the panel unanimously concluded that summary judgment on the trademark dispute was inappropriate and thus further proceedings were needed, and a majority ruled that the university was entitled to immunity from Phoenix’s counterclaims. The panel granted rehearing limited to the immunity questions. We now reaffirm our ruling rejecting summary judgment; this portion of our opinion draws heavily on Judge Tinder’s original opinion. After the benefit of the arguments on rehearing, we conclude that the state is not entitled to assert sovereign immunity over the counterclaims, and so we reverse that part of the district court’s judgment as well.
Premium Plus Partners v. Goldman, Sachs & Co. (ED Ill.)
Attending a meeting at the Treasury Department on October 31, 2001, Peter J. Davis, Jr., learned that the government was suspending the sale of new 30-year bonds. The meeting ended at 9:25 AM; attendees were told that the information was embargoed until 10 AM, when the news would be announced to the public. Defying the embargo, Davis swiftly passed the information to some of his clients, including John M. Youngdahl, an economist who worked for Goldman Sachs. Youngdahl relayed the information to Goldman Sachs’s traders, who at 9:35 AM began to buy futures contracts for 30-year Treasury securities, which they expected would rise in price. (There is no perfect substitute for their risk-return combination.) At 9:43 AM the Treasury posted the news on its web site, and word spread among traders. Goldman Sachs had an eight-minute head start and reaped substantial profits. It had been right: the price did rise, the largest one-day increase in 14 years. The Treasury did not issue 30-year bonds again until February 2006.

Posted by Marcia Oddi on Friday, August 05, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In City Savings Bank n/k/a LaPorte Savings Bank v. Eby Construction, LLC, a 13-page opinion, Judge Crone writes:

A construction company filed a complaint to foreclose on a mechanic's lien seeking recovery of the cost of labor and materials it provided during the construction of certain buildings and other facilities on commercial real estate owned by a trust. The bank that had loaned the money to the trust to fund the construction, which loans were secured by mortgages on the real estate, cross-claimed and then moved for summary judgment to foreclose on its mortgages. The trial court granted the bank's motion for summary judgment and entered a judgment of foreclosure with regard to the mortgages on the real estate.

Thereafter, the construction company filed an amended complaint and then moved for partial summary judgment asserting that its mechanic's lien has priority over the mortgages held by the bank. Although concluding that Indiana statutory and case law provides that the mortgages should have priority over the later-recorded mechanic's lien, the trial court granted partial summary judgment in favor of the construction company, ruling that the mechanic's lien has priority over the mortgages pursuant to principles of equity and on public policy grounds.

The bank brings this interlocutory appeal, raising several issues that we consolidate and restate as one dispositive issue: whether the trial court erred when it disregarded clear statutory directives upon equitable and public policy grounds. Finding error, we reverse the trial court's entry of partial summary judgment in favor of the construction company and remand for further proceedings. * * *

Neither the trial court nor Eby has supplied us with a compelling reason to disregard the clear intent of our legislature when it enacted Indiana Code Section 32-28-3-5(d). That intent was to “fill the statutory gap” and expressly address the lien priority between a mortgage executed to raise funds for construction of improvements on property and the mechanic's liens of those who provided the labor and supplies necessary to complete the construction. See Harold McComb, 892 N.E.2d at 1262. In sum, under the circumstances presented, it would eviscerate our decision in Harold McComb and the intent of the legislature in enacting the specific language of Indiana Code Section 32-28-3-5(d) to give priority to Eby's mechanic's lien over LSB's mortgages. Therefore, we conclude that the trial court erred when it granted Eby's motion for partial summary judgment. The mortgages are superior. We reverse the partial summary judgment entered by the trial court and remand for further proceedings consistent with this opinion.

NFP civil opinions today (2):

Guardianship of L.W.; S.M. v. M.W. and S.W. (NFP)

David and Karen Marks v. Northern Indiana Public Service Co. (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, August 05, 2011
Posted to Ind. App.Ct. Decisions

Courts - The five top SCOTUS decisions from the past term

From Findlaw.com, an article headed "The Top 5: The Year's Top 2010 Supreme Court Cases," by Robyn Hagan Cain.

Posted by Marcia Oddi on Friday, August 05, 2011
Posted to Courts in general

Environment - 2011 Edition of Indiana Environmental Statutes now available!

This is the new, 2011 edition of the annual publication, the Indiana Environmental Statutes, sponsored by the Environmental Law Section of the Indiana State Bar Association, that I edit and publish each year.

It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.

This year the soft-bound volume is 570 pp. and costs $30.00 plus shipping (note that shipping is less if you pool orders). Order online (a preview of several pages also is provided at this link).

Posted by Marcia Oddi on Friday, August 05, 2011
Posted to Environment | Indiana Law

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

Adding to the coverage of this issue, the WSJ on Aug. 3rd had this story, headed "Amazon Battles States Over Sales Tax ." It includes a great graphic; try here for full-page.

Posted by Marcia Oddi on Friday, August 05, 2011
Posted to Indiana Government

Courts - "When does a defendant's Sixth Amendment right to an attorney begin?"

Apparently you aren't going to find out any time soon from the Illinois Supreme Court, according to this story this morning from the Chicago Tribune column, "Ameet Sachdev's Chicago Law," that begins:

The Illinois Supreme Court last year decided to review a case that asks a question that touches every criminal prosecution: When does a defendant's Sixth Amendment right to an attorney begin?

A majority of the court ultimately declined to address the constitutional question in a ruling Thursday, much to the disappointment of Justice Anne Burke.

In a strongly worded dissent, which was joined by Justice Charles Freeman, she questioned why the court took the case if the judges weren't going to tackle the merits of the appeal.

"The majority continues to believe that defendant's petition for leave to appeal was properly granted because it raises an issue of public importance that merits the expenditure of this court's time and effort," Burke wrote. "However, the majority will not address that issue because it would take too much time and effort. This is not a reasonable position."

The case involved Kenyatta White, a reputed Chicago gang leader who was convicted of murder in 2006 and sentenced to 55 years in prison. His appellate lawyer, Richard Goldwasser, appealed the judgment, alleging that White was deprived of his Sixth Amendment right when officers barred his attorney from observing witnesses as they identified him in a pretrial lineup.

More from the story:
The five-judge majority concluded that White forfeited his right to raise the Sixth Amendment issue on appeal because he never raised it at trial.
Here is the 63-page, 8/4/11 opinion in People V. White.

Posted by Marcia Oddi on Friday, August 05, 2011
Posted to Courts in general

Thursday, August 04, 2011

Ind. Gov't - "Goldsmith Quits as NYC Deputy Mayor After 14 Months"

So Javier C. Hernandez reports in the NY Times City Room blog. A quote:

Mr. Goldsmith entered office last year with much fanfare: a Harvard professor and expert in innovation poached from the ivory tower. But his short tenure was complicated by controversies, most notably after the city’s slow response to a crippling snowstorm in December. At a raucous City Council hearing following the blizzard, he was the one dispatched by the mayor to deliver a personal apology and to acknowledge wide-ranging mistakes.

Still, Mr. Goldsmith managed to push through a series of changes to make government more efficient, by consolidating information technology and real estate operations and creating a Web site to allow city residents to submit cost-cutting ideas.

Posted by Marcia Oddi on Thursday, August 04, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Cynthia Welch v. Shawn D. Young, et al. , a 19-page opinion, Judge May writes:

Cynthia Welch was injured when a little league player who was taking practice swings struck her knee with a bat. She sued the player, Jordan Young; the player's father and coach, Shawn Young; McCutcheon Youth Baseball League, Inc.; and Wea Township through Wea Summer Recreation and Wea Summer Recreation Center (“Wea defendants”). The Wea defendants and Shawn Young moved for summary judgment, which the court granted. Welch moved to correct error and her motion was denied.

Our Indiana Court has articulated a new rule for determining liability in cases like the one before us, and there are questions of fact as to where Jordan Young was when he was taking the practice swings and whether the game had started when Welch was injured. Thus, summary judgment was inappropriate under the new standard[3] and we accordingly affirm in part, reverse in part, and remand.

[3] As explained below, while summary judgment for Shawn Young was inappropriate under our Supreme Court's new standard to the extent he might be subject to liability based on his relationship to the little league, this summary judgment was not error to the extent he was immune from suit as a Wea Township employee.
* * * 2. Breach of Duty

Both parties' remaining arguments are premised on whether Welch was a “participant” in the little league game when she was injured, or was merely a “spectator.” At the time of the briefing, that distinction had implications for the duty of care owed to Welch. But our Indiana Supreme Court's recent decision in Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), has changed how we assess negligence in this context. * * *

After Pfenning, then, the analysis of an injury like that before us is based not on the status of the plaintiff as a participant or spectator, or her incurrence of risk. Rather, the analysis should address whether the conduct of the defendant is within the range of ordinary behavior of participants in the sport. If it is, “the conduct is reasonable as a matter of law and does not constitute a breach of duty.”

Accordingly, our focus is not on whether Welch was a “participant” in the event, but on whether Jordan Young's action -- i.e., taking practice swings at the time and place of the injury -- was within the range of ordinary behavior of participants in the sport. As there are genuine issues as to whether Jordan Young was inside or outside the baseball field and whether the injury happened before or during the game, that question could not be resolved on summary judgment.

Our Supreme Court offered little guidance in Pfenning as to the meaning of its new rule that “if the conduct of such participant [i.e., the alleged tortfeasor] is within the range of ordinary behavior of participants in the sport, the conduct is reasonable as a matter of law and does not constitute a breach of duty.” However, other courts offer helpful insights. * * *

The record before us presents issues of fact that will likely have a bearing on whether Jordan Young's conduct when Welch was injured was within the range of ordinary behavior of participants in little league baseball. We must therefore reverse summary judgment for Young and remand.

Affirmed in part, reversed in part and remanded.

In J.B. v. Review Board, an 8-page opinion, the issue was whether the Administrative Law Judge abused her discretion by denying J.W.B.’s motions for continuance of his unemployment insurance appeal hearing and proceeding to disposition without his participation. From Judge Kirsch's opinion:
The State’s focus on the sufficiency of the evidence to sustain the ALJ’s decision to reverse the claims deputy’s determination of J.W.B.’s eligibility for benefits misses the mark. The Review Board was asked to determine if the ALJ abused her discretion by denying the motions for continuance, the ALJ’s findings of fact and conclusions on that issue were silent, and the Review Board merely adopted the ALJ’s findings and conclusions thereon without holding a hearing or taking further evidence.

Our research reveals that 646 Indiana Administrative Code 3-12-3, regarding the conduct of hearings before an ALJ, expired under Indiana Code chapter 4-22-2.5 effective January 1, 2009. Effective January 1, 2009, the Commissioner of the DWD established a written policy regarding the conduct of hearings before an ALJ. http://www.in.gov/dwd/files/DWD_Policy_2008-28.pdf (last visited July 7, 2011). * * *

We disagree with the conclusion reached by the ALJ, and apparently the Review Board, that good cause was not shown. Either of these stated reasons on their face constitutes good cause. Furthermore, the prejudice to J.W.B. from the denial of his motions was the ultimate reversal of his benefits eligibility determination, based in part, on his failure to participate.

The Act provides that parties to a disputed claim for unemployment benefits are to be afforded “a reasonable opportunity for a fair hearing.” Ind. Code § 22-4-17-3. We therefore reverse the decision of the ALJ and the Review Board and remand the matter with instructions to the Review Board to grant Bond a hearing upon due notice.

Reversed and remanded with instructions.

In Terrence Williams v. State of Indiana , a 6-page opinion, Judge May writes:
Terrence Williams was charged with carrying a handgun without a license, and police seized his gun for evidence. After the State dismissed the charge, Williams asked that the gun be released to his counsel. The court denied his petition, and we reverse. * * *

It was error to deny Williams’ motion to release the gun to his counsel. The trial court denied the petition because: “The Defendant could not possess said property at the time of said disposition.” (App. at 35) (emphasis added). But, in the petition at issue here, Williams did not ask to have the gun returned to himself; he asked that it be returned “to Counsel.” (Id. at 32) (emphasis supplied). Williams’ inability to lawfully possess a handgun, without more, does not prevent the return of the gun to his counsel. * * *

The State next appears to argue the statute permits the return of property to only the person who owned the property at the moment the case was disposed. Adopting that argument would require us to read into the statute a restriction the legislature did not include, and we may not do so. * * *

Counsel was the “rightful owner” of the gun “following the final disposition” of Williams’ case, and nothing in the record suggests counsel could not “lawfully possess” it. As we are obliged to strictly construe the statute in favor of the owner of the property, see Wallace, 199 Ind. at 327, 157 N.E. at 660, it was error to deny the petition to release the gun to Williams’ counsel.

NFP civil opinions today (4):

Robert Holland v. Manufacturers and Traders Trust Co., et al. (NFP)

Timothy & Stephanie Mackall v. Cathedral Trustees, Inc. (NFP)

Betsy Waters v. Indiana State University (NFP)

Adoption of X.M.; H.P. and A.P. v. K.M. (NFP)

NFP criminal opinions today (6):

Lisa Fouce v. State of Indiana (NFP)

Roy Kelley, Jr. v. State of Indiana (NFP)

Roy Austin Smith v. State of Indiana (NFP)

Bryan E. Clark v. State of Indiana (NFP)

Joel T. Martinez v. State of Indiana (NFP)

Marcus Bailey v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 04, 2011
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from June 29, 2011, on the Supreme Court's opinion in Indiana Department of Child Services v. A.B., a 33-page opinion with two separate concurring opinions, the Attorney General has now filed a 14-page petition for rehearing, which is available here.

And here, from the docket in 71 S 00 - 1002 - JV - 00156 - INDIANA DEPARTMENT OF CHILD SERVICES V. A.B. :

6/29/11 2011 TERM
WE REVERSE THE TRIAL COURT'S ORDER AND HOLD THAT THE THREE STATUTES ARE CONSTITIONAL.

WE FURTHER HOLD THAT THE DEPARTMENT OF CHILD SERVICES (DCS) REQUIREMENT THAT THE CHILD BE PLACED IN INDIANA RATHER THAN BEING PLACED OUT OF STATE AT CANYON STATE ACADEMY WAS ARBITRARY AND CAPRICIOUS, AND WE UPHOLD JUDGE NEMETH'S PLACEMENT OF THE CHILD AT CANYON STATE ACADEMY.

FINALLY, WE HOLD THAT DCS SHALL PAY FOR THE PLACEMENT OF THE CHILD AT CANYON STATE ACADEMY. --------

DAVID, J. SHEPARD, C.J. AND RUCKER, J. CONCUR.
DICKSON, J. CONCURS WITH SEPARATE OPINION.
SULLIVAN, J., CONCURS IN PART WITH SEPARATE OPINION.
33 PAGES
ENTERED 6/29/11 KM

6/29/11 ****** ABOVE ENTRY MAILED ******

7/29/11 APPELLANT'S PETITION FOR REHEARING (9) CERTIFICATE OF SERVICE (9) BY MAIL DATE 07/29/11 ENTERED ON 08/01/11 JS

Posted by Marcia Oddi on Thursday, August 04, 2011
Posted to Ind. Sup.Ct. Decisions

Wednesday, August 03, 2011

Ind. Decisions - Interesting 7th Circuit nonprecedential disposition today

In Deborah Walton v. Claybridge Homeowners Assoc. (SD Ind., Pratt), a 3-page order, Judge Hamilton writes:

Walton’s present complaint boils down to a contention that she suffered constitutional injury when she lost the easement dispute in state court. Walton says that the state judge, one of the defendants, gave rights in her land “to an All White Group of People” and, worse still, ordered her “into Slavery” by resolving the property dispute in the association’s favor. As for the numerous other defendants, including the association, the complaint simply asserts, without explanation, that they collectively “interfered” with Walton’s property and contract rights. Walton demanded that the state judge be compelled to reverse his adverse decision and that damages be assessed against the other defendants. The district court addressed the merits of the complaint, dismissed it with prejudice, and then awarded attorneys’ fees to the association and several related defendants for prevailing against Walton’s “baseless” suit. See 42 U.S.C. § 1988(b).

On appeal, Walton devotes most of her brief to criticizing the district court’s reliance on judicial immunity as the basis for dismissing her suit as against the state judge. We need not address her concerns, however, because the complaint ought to have been dismissed for lack of subject-matter jurisdiction, a point we must raise sua sponte even though it has been overlooked by the defendants. * * * The Rooker-Feldman doctrine stripped the district court of jurisdiction to involve itself in Walton’s blatant attempt at an appeal, notwithstanding her allegations that the state court’s judgment runs afoul of the United States Constitution. [citations omitted] Accordingly we modify the judgment to reflect that Walton’s suit is dismissed for want of subject-matter jurisdiction. * * *

The issue is now definitively resolved, and Walton’s refusal to accept defeat has become vexatious. Not only that, but her allegation that the state-court judgment runs afoul of the Thirteenth Amendment is preposterous. * * *

And we warn Walton that, in addition to attorneys’ fees, she may subject herself to monetary sanctions and restrictions on future suits if she continues to abuse the judicial process.

AFFIRMED as MODIFIED.

ILB: This appears to be the NFP Indiana COA opinion referenced.

Posted by Marcia Oddi on Wednesday, August 03, 2011
Posted to Ind. (7th Cir.) Decisions

Courts: "The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts"

Marin K. Levy, Lecturing Fellow at Duke University - School of Law has posted this paper, which is forthcoming in the Duke Law Journal, on SSRN. From the summary:

Case management practices of appellate courts have a significant effect on the outcome of appeals. Decisions about which cases will receive oral argument, which will have dispositions written by staff attorneys in lieu of judges, and which will result in unpublished opinions exert a powerful influence on the quality of justice that can be obtained from the federal appellate courts. Despite their importance, there has been no in-depth review of the case management practices of the different circuit courts in the academic literature.

This Article begins to fill that void. It first documents and analyzes the practices of five circuit courts, based on qualitative research in the form of interviews of appellate judges, clerks of court, court mediators, and staff attorneys. A thorough account of case management reveals the great extent to which these practices vary across circuits.

[Thanks to Legal Theory Blog]

Posted by Marcia Oddi on Wednesday, August 03, 2011
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In T.W. v. Review Board, a 10-page opinion, Judge Barnes concludes:

Although we are concerned about T.W.’s failure to disclose his relationship with PLS to the Department, the mere failure to disclose the relationship is insufficient to support the denial of benefits under Indiana Code Section 22-4-13-1.1(a). The fact that was not disclosed or that was falsified must also result in a disqualification, ineligibility, or reduction in benefits. The evidence here does not support a conclusion that T.W.’s relationship with PLS would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits.

Conclusion. The record does not support the Review Board’s conclusion that T.W. was self-employed and ineligible to receive benefits. We reverse the Review Board’s order and remand for proceedings consistent with this opinion.

In Brian D. Hayes v. Westminster Village North, Inc., an 8-page opinion, Sr. Judge Barteau wrotes:
Plaintiff-Appellant Brian Dale Hayes, as administrator of the Estate of Dorothy Rodarmel (“Hayes”), appeals the trial court’s grant of summary judgment to Defendant-Appellee Westminster Village North, Inc. (“Westminster”). We reverse and remand. * * *

[The trial court granted] Westminster’s motion for summary judgment, determining that Hayes’ “allegation of medical negligence and proposed allegation of wrongful death as a result of medical negligence are barred by the statute of limitations.” * * *

Hayes contends that his claims against Westminster are not barred by the statute of limitations due to the savings clause set forth in Indiana Code section 34-11-6-1 (1998). That statute provides, “[a] person who is under legal disabilities when the cause of action accrues may bring the action within two (2) years after the disability is removed.” Id. The phrase “under legal disabilities” is defined to include persons who are “less than eighteen (18) years of age, mentally incompetent, or out of the United States.” Indiana Code § 1-1-4-5(24) (2002). * * *

Our analysis does not end with the determination that there is a dispute of fact as to whether Rodarmel was mentally incompetent and therefore under a legal disability. Indiana Code section 34-11-6-1 allows a plaintiff to bring suit up to two years after the disability is removed. Hayes does not dispute that Rodarmel’s disability ended when she died on December 14, 2007. Thus, the two-year period set forth in Indiana Code section 34-11-6-1 took effect when she died, and Hayes was permitted to file suit until December 14, 2009. It is uncontested that Hayes did not file this lawsuit until December 18, 2009. Consequently, Indiana Code section 34-11-6-1 alone does not permit Hayes’ claims to proceed.

Hayes filed his proposed complaint with the Indiana Department of Insurance on December 14, 2009, which was within the two-year period provided by Indiana Code section 34-11-6-1. Indiana’s Journey’s Account Statute (“JAS”) * * * is not an exception to the statute of limitations; it merely allows the continuation of a previous suit filed within the statute of limitations.

In Martin Roy Emerson v. State of Indiana, an 18-page, 2-1 opinion, Judge Bradford writes:
[I] Emerson contends that the prosecutor engaged in misconduct during voir dire and in opening and closing arguments to the jury during phase one of the trial. Specifically, he notes that the State repeatedly referred to him as a “bully” and contends that the State induced the jury to convict him for reasons other than guilt or innocence. * * *

The judgment of the trial court is affirmed.

BARTEAU, SRJ, concurs in part and dissents in part with opinion.
VAIDIK, J., concurs.

[SRJ Barteau's opinion begins, on p. 14 of 18] I concur in Section III of the majority's opinion. I respectfully dissent from the majority's resolution of Section I, on the issue of prosecutorial misconduct.6 Based on my review of the evidence, I conclude that the State's actions constituted both prosecutorial misconduct and fundamental error, and I would reverse Emerson's conviction for driving while intoxicated.

NFP civil opinions today (1):

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

NFP criminal opinions today (6):

Dustin L. Coleman v. State of Indiana (NFP)

John G. Young v. State of Indiana (NFP)

David W. Glasgow v. State of Indiana (NFP)

Thaddeus Rodriguez v. State of Indiana (NFP)

Larry D. Nash-Aleman v. State of Indiana (NFP)

Michael E. Hurst v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 03, 2011
Posted to Ind. App.Ct. Decisions

Law - "The simple case for the Affordable Care Act’s constitutionality"

Via SCOTUSblog, this article, where, per the intro: "Dawn Johnsen, of Indiana University Maurer School of Law, discusses the constitutionality of the Affordable Care Act for our on-line symposium."

Posted by Marcia Oddi on Wednesday, August 03, 2011
Posted to General Law Related

Ind. Gov't. - "Charlie White hires ex-prosecutor Brizzi" [Updated]

That would be Secretary of State Charlie White. See the brief story here from WISH-TV.

The Indianapolis Star reports:

Former Marion County Prosecutor Carl Brizzi is taking over as the lead attorney on Secretary of State Charlie White's criminal case.

White, who faces seven felonies, including voter fraud and theft, had been represented by attorney Dennis Zahn. According to an entry on the Hamilton County court system's online docket, Brizzi filed his appearance Tuesday.

[Updated at 2:34 PM] 6NEWS is now reporting:
Former Marion County Prosecutor Carl Brizzi said Wednesday he's joined the defense team of Secretary of State Charlie White.

An earlier report indicated Brizzi was replacing noted criminal attorney Dennis Zahn, but the former prosecutor said he is co-counsel for White, along with Zahn.

Posted by Marcia Oddi on Wednesday, August 03, 2011
Posted to Indiana Government

Law - New Social Security calculators can help figure out when to begin collecting benefits

Tara Siegel Bernard of the NY Times business column, "Your Money," has had a series of columns on the new, sophisticated calculators. Here is the most recent, from Aug. 2, 22011. A quote:

We can’t predict precisely how long we’ll live, which is why figuring out the optimal time to take Social Security is so difficult.

But the creators of a new tool called Social Security Solutions said that they’ve come up with a way to hedge your bets: Their tool generates a claiming strategy based on how long you expect to live, but it also takes into account that you might actually live longer than you anticipate.

“We look to maximize benefits at the exact mortality assumptions and then assess if there are other tweaks that could be made so that if you live longer than you expect, you collect more money,” said William Meyer, founder of Social Security Solutions who also built products for big firms like Charles Schwab.

The algorithm that powers the tool is based on research he conducted with William Reichenstein, professor of investment at Baylor University and head of research for Social Security Solutions. The pair also co-wrote the book “Social Security Strategies: How to Optimize Retirement Benefits.”

Posted by Marcia Oddi on Wednesday, August 03, 2011
Posted to General Law Related

Tuesday, August 02, 2011

Environment - "Environmentalists sue to block I-69 construction over caves and wetlands"

From the Bloomington Herald-Times, Rebecca Troyer reports:

Landowners affected by the I-69 project, Citizens for Appropriate Rural Roads and the I-69 Accountability Project filed the suit in the U.S. District Court for Southern Indiana about a week after federal highway officials signed off on the Final Environmental Impact Statement for Section 4 of I-69.

The suit claims the Indiana Department of Transportation’s I-69 project violates the National Environmental Policy Act and Administrative Procedures Act and names INDOT, the Federal Highway Administration and the U.S. Department of Transportation as defendants.

“If the Defendants’ actions are not enjoined and reversed, they will cause irreparable harm to the region’s ecosystems, endangered species, natural resources and environmental quality, the Plaintiff organizations and their members, and the public as described herein, in violation of federal law, and contrary to the public interest,” the complaint states. “Plaintiffs seek declaratory and injunctive relief, and their attorneys’ fees and costs.” * * *

In February the Hoosier Environmental Council and Citizens for Appropriate Rural Roads filed a federal lawsuit claiming the I-69 highway through Greene and Daviess counties would “destroy valuable natural resources” and violate the federal Clean Water Act. That lawsuit asked that the highway be rerouted to a less environmentally disruptive route along existing highways, U.S. 41 and Interstate 70.

Once completed, the new portion of I-69 in Indiana will stretch from Evansville to Indianapolis. Divided into six sections, the project is in various stages of completion. Motorists are already driving on portions of the road near Evansville, and other sections are under construction.

Here is a copy of the 42-page complaint filed yesterday in the SD Ind.

See also this July 6th story by Eric Bradner of the Evansville Courier & Press, discussing the Bloomington Metropolitan Planning Organization's efforts, and this Feb. 11th HEC YouTube video on the federal lawsuit filed re Greene and Daviess county construction.

Posted by Marcia Oddi on Tuesday, August 02, 2011
Posted to Environment

Ind. Decisions - Interesting oral argument tomorrow before COA on issue of hospital charges

Interesting oral argument tomorrow before the COA at 1:30 PM - Abby Allen and Walter Moore v. Clarian Health Partners, Inc. Details here.

For background see this May 8, 2010 ILB entry. Here is a quote from an IndyStar story referenced in the entry:

Allen is one of two plaintiffs in a lawsuit filed this week in Marion Superior Court claiming that Clarian Health charges uninsured patients -- or those receiving treatments not covered by their insurance -- unreasonably high prices. The Indianapolis-based hospital system, according to the suit, gives those patients no ability to negotiate different prices. * * *

The lawsuit, however, has broader implications because it targets a controversial practice used to set hospital prices across the nation. Hospitals typically start with a set price, called the "charge master." Health insurers then negotiate discounts off that rate. The discounts can be substantial depending on the volume of patients an insurer brings to a particular hospital.

Posted by Marcia Oddi on Tuesday, August 02, 2011
Posted to Upcoming Oral Arguments

Courts - "State Supreme Court Law Clerk Salary Chart"

Check it out here, at Law Clerk Addict.

Posted by Marcia Oddi on Tuesday, August 02, 2011
Posted to Courts in general

Ind. Courts - Another document in the Meredith voucher law challenge

Updating the July 21st ILB entry headed Still more on "Teachers' union seeks to block voucher law," which included links to the Complaint, and the State's and an intervenors' opposition briefs, in the case of Teresa Meredith, et al v. Mitch Daniels, the ILB has now belatedly obtained, and is posting, a copy of the 40-page plaintiffs' brief, which accompanied the July 1, 2011 complaint.

The case was assigned to Judge Michael D. Keele, Marion Superior Court 7 and Aug. 11 was the date set for a hearing on the plaintiffs' request for a preliminary injunction.

Posted by Marcia Oddi on Tuesday, August 02, 2011
Posted to Indiana Courts

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

For publication opinions today (2):

Brian J. Kelley v. Med-1 Solutions, LLC, et al. is a 25-page opinion by Judge Darden. Med-1 is a collection agency which contracted to collect delinquent debts on behalf of medical providers. From the opinion:

The Debtors assert that the trial court erred in granting summary judgment in favor of Med-1. Specifically, they argue that 1) Med-1's filing of small claims notices “in its own name on accounts that it did not own” and “demand[ing] and collect[ing]” attorney fees from the Debtors violated the FDCPA; 2) their claims are not barred by res judicata or collateral estoppel; and 3) Med-1 committed fraud in suing on accounts that it did not own. * * *

In conclusion, we find that the trial court properly granted Med-1's motion for summary judgment and denied the Debtors' motion for partial summary judgment; and we decline to award Med-1 appellate attorney fees.

In Bryan Johnson v. State of Indiana , a 13-page opinion, Judge Riley writes:
Johnson raises two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion when it denied his motion to suppress evidence gained from a search conducted with an invalid search warrant; and
(2) Whether the trial court abused its discretion in determining that the evidence obtained pursuant to the search warrant was admissible under the good faith exception to the exclusionary rule.

On May 1, 2009, Johnson took his computer to Computer Bay in Schererville, Indiana, to have it fixed because it was running slowly. Matthew Rusch (Rusch), an employee of Computer Bay, worked on the computer and discovered a folder titled “Had sex with a 12 year old_file.” Rusch did not know what to do, so he left the folder unopened and told his co-workers about it. Based on their recommendations, he reported the folder to the Schererville Police Department. * * *

Johnson's primary contention on appeal is that the trial court should have suppressed the evidence of the images that the police department found on his computer because Detective Rosado did not properly file the affidavit that was the basis for the police department's search warrant. When Detective Rosado submitted his affidavit and search warrant to the Schererville Town Court on May 19, 2009 to be signed, he did not see Judge Anderson. Instead, Detective Rosado submitted the forms to one of Judge Anderson's office employees and received them back shortly thereafter. Detective Rosado was not familiar with the policies of the Schererville Town Court and assumed that the court employee had taken care of everything necessary to properly file a search warrant. However, when Detective Rosado received the forms back, neither form had a file mark, and the Schererville Court later could not find either form in its records. * * *

Based on these facts, we cannot find any evidence that Detective Rosado filed the affidavit, so we conclude that it was not properly filed.

III. Good Faith Exception. Nevertheless, the State argues that even if the affidavit was not properly filed under I.C. § 35-33-5-2(a), the evidence obtained pursuant to the search warrant is still admissible under the “good faith exception” to the exclusionary rule. * * *

[W]e conclude that Detective Rosado relied on the search warrant here in good faith. As required by Indiana Code section 35-37-4-5, he reasonably believed the warrant to be valid. First, as we concluded above, the warrant had sufficient probable cause. Second, there is evidence that he reasonably believed that he had properly filed the affidavit and warrant with Judge Anderson. He testified at trial that he took both forms to Judge Anderson‟s employees with the purpose of filing them, and he assumed that the employees had taken the steps necessary to follow the proper procedures. There was no reason for him to believe that they had not done so. In light of these facts, we conclude that the trial court did not abuse its discretion in determining that the evidence on Johnson‟s computer was admissible under the good faith exception to the exclusionary rule, or in denying Johnson‟s motion to suppress.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Ronnie Jones v. State of Indiana (NFP)

George Lowman v. State of Indiana (NFP)

Debora A. Phillips v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 02, 2011
Posted to Ind. App.Ct. Decisions

Courts - "High court asked to hear student online-speech case"

David L. Hudson Jr. writes at the First Amendment Center in an entry that begins:

A former Connecticut high school student punished for speech critical of school officials on her public Internet journal has asked the U.S. Supreme Court to hear her appeal. If the Supreme Court takes Avery Doninger’s case, it could offer much-needed guidance on when or whether school officials can punish students for online speech created off campus.

Posted by Marcia Oddi on Tuesday, August 02, 2011
Posted to Courts in general

Ind. Decisions - State files brief in 7th Circuit appeal of Judge Pratt's district court ruling granting preliminary injunction

This June 28th ILB entry reported that Indiana's attorney general was appealing the Planned Parenthood decision, linking to an AP story from June 28th by Ken Kusmer, who wrote:

Attorney General Greg Zoeller filed a notice of appeal with the U.S. 7th Circuit Court of Appeals in Chicago, a move that was expected after U.S. District Judge Tanya Walton Pratt issued a preliminary injunction last week blocking parts of the law.

The injunction was granted as part of a lawsuit brought by Planned Parenthood of Indiana. The state will submit the legal basis for its appeal later, but in its failed attempt to block the injunction, it argued that a separate challenge to the law was the proper forum to determine its legality, not Planned Parenthood's challenge.

In that case, the state is appealing Medicaid Administrator Donald Berwick's June 1 decision rejecting changes to Indiana's Medicaid plan brought on by the new law. Berwick contended that Medicaid recipients have the right to obtain treatment from any qualified provider, including those that provide abortions. The state filed that appeal with Berwick's office on Thursday, and if the two sides can't work out a compromise, that dispute would also likely land before the appeals court in Chicago, Zoeller told The Associated Press on Tuesday.

"There is this process between the federal and state governments which is the proper process by which these things are resolved," Zoeller said.

Indiana's appeal seeks a review of the preliminary injunction before any further action is taken on Planned Parenthood's lawsuit, which seeks a permanent injunction against the law. The injunction Pratt issued Friday would remain in effect while the appeal is pending.

Late yesterday, Aug. 1, 2011, AP colleagues Charles Wilson and Tom LoBianco reported:
INDIANAPOLIS (AP) — Indiana asked a federal appeals court Monday to lift a judge's order blocking parts of a new abortion law that cuts some public Planned Parenthood funding, saying the issue should be decided by Medicaid officials and not the courts.

The 44-page brief asks the 7th U.S. Circuit Court of Appeals in Chicago to reverse U.S. District Judge Tanya Walton Pratt's June 24 preliminary injunction, which barred the state from cutting Medicaid funds to the organization because it provides abortions.

Attorney General Greg Zoeller's filing Monday came just days after the state complied with the injunction by giving Planned Parenthood a $6,000 grant. * * *

In its brief filed Monday, Indiana says federal Medicaid officials, not the courts, should determine the law's legality. The state is appealing Medicaid Administrator Donald Berwick's June 1 decision rejecting changes to Indiana's Medicaid plan brought on by the new law. Berwick contended Medicaid recipients have the right to obtain treatment from any qualified provider, including those that provide abortions.

A hearing on the Medicaid appeal is scheduled for Sept. 13 in Chicago. * * *

The Indiana Housing Community and Development Authority said in June it would not give Planned Parenthood any grants because of the new state law, but it changed course Friday.

"With the new ruling, we determined that treating Planned Parenthood different than any other applicant would violate the injunction," said IHCDA spokeswoman Emily Duncan.

Here is the Zoeller press release from August 1st. Here is a link to the 44-page brief filed by the State of Indiana. (Oddly, the pdf count shows 115 pp.)

Posted by Marcia Oddi on Tuesday, August 02, 2011
Posted to Ind Fed D.Ct. Decisions

Monday, August 01, 2011

Courts - "Court Blocks Kansas Law Defunding Planned Parenthood"

Nathan Koppel of the WSJ Law Blog is reporting:

Today, Kansas federal judge J. Thomas Marten blocked the law, agreeing with Planned Parenthood that the group would suffer irreparable harm if the defunding measure was allowed to take effect, AP reports.

The [WSJ] Law Blog has requested comment from the Kansas Attorney General’s Office.

Kansas contends that other entities can provide the same services that Planned Parenthood offers, according to AP, which notes that this is the second time this summer the state has suffered a legal setback on an abortion issue. Last month, a judge issued a temporary injunction against a regulation that tell abortion providers what drugs and equipment they must stock, AP reports.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Courts in general

Law - More on: Read the pending debt bill

Add to the bill itself, this lengthy analysis by the respected Nate Silver of FiveThirtyEight.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to General Law Related

Ind. Gov't. - "Gamblers lose jackpots to pay child support debts"

Nice to see reporter Lesley Weidenbener back, now writing for The Franklin Online. Her long story today begins:

INDIANAPOLIS — Casinos have blocked jackpot payouts to hundreds of Indiana gamblers behind on their child support payments in the past year, freeing up money for 550 children.

Since October – when the first casino implemented the legislatively-mandated intercept program – gambling operators have withheld roughly $650,000 from 376 men and women, some of them more than once.

Sixteen gamblers have actually paid off their child support debts with their forfeited jackpots, said Cynthia Longest, deputy director at the Indiana Department of Child Services.

“This is one of the coolest things we’ve ever done,” said Rep. Linda Lawson, D-Hammond, who sponsored the legislation in the Indiana House. “I think many of these folks are going to be happy to get this burden off their backs. It was a phenomenal thing to do.”

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Indiana Government

lAW - "5 years later, states struggle to comply with federal sex offender law"

It is know variously as the Adam Walsh Act (AWA or the federal Sex Offender Registration and Notification Act (SORNA). The ILB has had a slew of entries on it and on its impact in Indiana. Thanks to the Sentencing Law Blog, here are two NEW stories on SORNA.

Emanuella Grinberg, CNN, reported in a long story on July 28th - here are some quotes:

This week also marks a key deadline for states, tribes and U.S. territories to meet the act's requirements or face a 10% cut in federal justice assistance funding, not exactly small change in tight economic times.

As of Wednesday, the 30th anniversary of Adam Walsh's disappearance from a Florida department store, 14 states, nine tribes and the territory of Guam had "substantially implemented" what's known as the Sex Offender Registration and Notification Act, or SORNA, provisions of the Adam Walsh Act. On the eve of the July 27 deadline, last-minute submissions were pouring into the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, known as the SMART office.

The law expanded the categories of crimes eligible for registration and increased the period and frequency of registration for certain adults and juveniles, effectively growing registries by as much 500% in some states. It called for jurisdictions to retroactively register some adult offenders who'd already done their time on the registry. It also called for registration of certain juveniles who'd been shielded from the registry in the past, based on the notion that confidentiality offers them a greater likelihood of rehabilitation.

The goal was to corral the information into a national public registry and FBI database. But the act is still very much a work in progress. * * *

To see how the law has fared in practice, one need look no farther than Ohio, the first state to adopt the law in its original, most stringent form, in 2007.

Ohio's version of the Adam Walsh Act, SB 10, has resulted in more than 7,000 legal claims, according to the state public defender's office. It also has led to years of litigation, two state Supreme Court rulings and separate registry criteria for sex offenders whose crimes occurred before and after the law's enactment.

The slow unraveling of Ohio's law underscores some of the major criticism of the new federal scheme and the registry in general: that it stigmatizes offenders beyond hope of rehabilitation while giving the public a false sense of security.

The federal agency created to help the states implement the act acknowledges that compliance has been an uphill battle. It has also listened to the states' concerns and issued supplemental guidelines that offer states more flexibility than Ohio had when it adopted its law.

Controversial legal issues like retroactive registration -- requiring an offender who was sentenced before the legislation to follow the new rules -- and juvenile registration get the most notice. For most states, however, the biggest hurdles are implementing technology and adjusting statutes, said Linda Baldwin, director of the SMART office.

"What happens across the board is some states are finding it more difficult to implement SORNA depending on their starting point," she said. "We've found that states whose systems are not centralized and digitized have had to make great changes to their registry system, but those changes require an investment that states have been able to apply to our office for funding for." * * *

Besides Ohio, states that have adopted SORNA are Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, South Carolina, South Dakota, and Wyoming. [ILB - not Indiana].

There is way more to this article, including a section headed "Do sex offender registries work?"

Yesterday the Columbus Ohio Dispatch had this story, headed "Ohio sex offender registry a mess: Supreme Court has twice ruled it unconstitutional," reported by David Eggert.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to General Law Related

Environment - "Plant managers try to fight off invasive species"

Interesting AP story from Columbus IN by Brian Sanders. It begins:

Never send a bug to do a man’s job.

That’s what Jim Allen, property manager for Brown County’s Yellowwood State Forest, thought after years with no visible results from thousands of Galerucella beetles unleashed in 1997 to counteract the forest’s infestation by purple loosestrife.

Purple loosestrife is considered an invasive species by the Indiana Department of Natural Resources — a plant with no natural checks on its spread. Loosestrife, which originated in Europe and Asia, arrived on the East Coast in the late 1800s and had taken root in the Midwest by the 1940s.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Environment

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

Supplementing this ILB entry from July 25th, here is a story headed "WellPoint reaches tentative accord in data breach suit: It is the second settlement to come from lawsuits claiming that the company failed to protect the privacy of individual insurance applicants online." It is written by Pamela Lewis Dolan, appears in the AMA's News, and reports on both the Indiana settlement with Wellpoint and a California settlement.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to General Law Related

Environment - "Push for rules rises as megafarms decline: Green groups worry about water supply"

Angela Mapes Turner has this long, informative story today in the Fort Wayne Journal Gazette that begins:

Indiana’s megafarm industry fared better this year than last, but the number of large farming operations continues to fall, according to state environmental officials.

The break in the boom has given environmentalists an opportunity to push for stricter regulation on what they consider a main threat of big agriculture – manure finding its way into water supplies.

Since last July, the state has recorded a decrease of 57 permitted farms, known as concentrated animal feeding operations and confined feeding operations, according to the Indiana Department of Environmental Management.

That leaves Indiana with 1,994 operations as of July 1, an overall drop of 217 farms over the past four years, IDEM said.

Large-scale farming boomed in the past decade in Indiana as some farmers embraced it as a labor-efficient method that protects animals from disease and outside predators. In a concentrated animal feeding operation, large numbers of animals are fed and raised in environmentally controlled housing.

Environmental activists say although the majority of the operations might be responsible, a few megafarms in recent years have made headlines with irresponsible and sometimes illegal animal-waste dumping that affects water sources. Hog farms have especially drawn protests because of the amount of manure each pig creates – multiplied by thousands at a megafarm – creating what neighbors say are both air- and water-quality issues.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Environment

Law - "No-fee public access to government information is in danger"

This is very concerning. Some quotes from Bernadine Abbott Hoduski's report July 29th in American Libraries Magazine:

No-fee public access to government information is in danger, because on July 22 the U. S. House of Representatives voted 252–159 to drastically cut the Government Printing Office (GPO) appropriations for 2012 and eliminate funding for the GPO Federal Digital System (FDsys). FDsys was created by GPO in 1994 to fulfill the requirement of the 1993 GPO Access Act to provide online electronic government information at no charge to the American people. The cuts are part of H.R. 2551, which provides legislative branch appropriations for 2012.

We are also in danger of losing GPO, the agency charged by Congress for the past 150 years to protect the public’s access to government information, just to save a few bucks. Dismembering or privatizing GPO, as the House proposes, will not save the government any money, but it will damage public access to government information. * * *

Congress is about to break its promise that if libraries and the public give up paper, they will still have permanent no-fee access to electronic government information.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to General Law Related

Law - Read the pending debt bill

Slate has posted the 74-page, large-type proposal online.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to General Law Related

Courts - Jerry Brown nominates Goodwin Liu to the California Supreme Court

So reports Dan Morain in the Sacramento Bee. Lui's nomination to the 9th Circuit by President Obama was blocked in the US Senate. Some quotes from the long story:

Brown nominated Goodwin Liu to the Supreme Court last week, hoping he has found a justice in the mold of a giant in California's legal history, Roger Traynor.

Like Liu, Traynor was a 40-year-old UC Berkeley law professor with limited courtroom experience when Gov. Culbert Olson appointed him in 1940. Brown's father, Gov. Edmund G. "Pat" Brown, elevated Traynor to chief justice in 1964.

For three decades, Traynor was integral to a court that expanded civil rights and pioneered what are now basic concepts of civil law. In Brown's view, Traynor is the most distinguished justice ever to serve this state.

Traynor's opinions resonate today. He wrote a 1948 opinion striking down California's ban on interracial marriage, 19 years before the U.S. Supreme Court struck down miscegenation laws nationwide.

Liu likely will be confirmed by September when the state Supreme Court takes up a case involving California's ban on same-sex marriage, an issue that turns in part on interracial marriage cases of an earlier time.

"I'm hoping that Justice Liu will be serving in that tradition," Brown said.

When he became governor the first time, Brown inherited a court that was among the nation's finest. By the time he left office, the court was fending off assaults that tarnished its standing and, in time, would dramatically alter its course.

Predictably – and inaccurately – Republican partisans compare Brown's selection of Liu to Brown's nomination 35 years ago of another 40-year-old, Rose Elizabeth Bird.

Brown's decision in 1977 to nominate Bird as chief justice probably was the worst political blunder of his early years as governor.

Bird, who died in 1999, faced withering criticism, some of it rooted in sexism, some of it from old-timers who couldn't get over the whole diversity thing, and much of it from business interests.

For all her intelligence, Chief Justice Bird did herself no favors. She could be haughty and dismissive, not a shrewd tactic when dealing with self-important lawyers and judges. She handed her enemies an ideal campaign issue by finding fault with every death sentence that came before her.

Voters ousted her in a historic election in 1986, along with two other Brown-appointed justices, Joseph Grodin and Cruz Reynoso, who deserved better.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Courts in general

Ind. Courts - "Porter County judges face increased caseloads"

Porter Circuit Court Judge Mary Harper had guest commentary in the Sunday NWI Times, explaining the the average caseload increase for the nine Porter County judicial officers.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Indiana Courts

Ind. Courts - "Clark County officials hope suit will solve fiscal crisis"

In a lengthy story this weekend, Ben Zion Hershberg of the Louisville Courier Journal reported:

Clark County officials hope a lawsuit in the Indiana Tax Court will save them from having to lay off scores of employees and cut services this fall to balance its budget.

“A lot of it depends on the tax court,” Clark County Auditor Monty Snelling said when asked what the county can do about its fiscal crisis.

He was referring to the county’s lawsuit requesting a special $3.2 million increase in the amount of property-tax revenue it can collect next year, plus a $1.5 million continuing increase in the state limit on property-tax collections, to close the gap in the budget. * * *

Financial experts trace many of the county’s financial problems to the council’s 2007 decision to cut property-tax collections by $2.7 million, or about 25 percent, to give taxpayers a break while the county had what seemed like plenty of money in its Rainy Day Fund and other reserves, which now have been spent.

But the reduction in property-tax collections cut the tax base permanently, because the state allows only about a 3 percent increase in property-tax collections from year to year.

With the loss of that $2.7 million and the tax caps in succeeding years, the county has lost more than $7 million in possible property-tax collections, [county attorney Greg] Fifer said.

In addition, he said, state bond authorities changed the way operating costs can be funded for the Clark County Building Authority, which maintains the government center on Court Avenue, adding nearly $1 million to county spending.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Indiana Courts

Ind. Law - "Sentencing reform proves no easy task"

"Start reform at the grass roots" is the headline to this editorial today in the Indianapolis Star, that concludes:

Reform of the state's entire criminal code came before the legislature in the session just past and probably will occupy the front burner in 2012. Much modernizing will have to be done with the code, which dates back nearly four decades. Marijuana would make an ideal bipartisan starting point.
The heading to this ILB entry comes from Maureen Hayden's excellent CNHI story, published July 31st in the Jeffersonville News & Tribune. Some quotes:
INDIANAPOLIS — After sitting through another meeting of a legislative study committee charged with taking a hard look at crime and punishment in Indiana, I realized why it’s been nearly 40 years since lawmakers undertook a similar task and why an attempt to fast-track a sentencing reform bill went off the tracks in the last session of the Indiana General Assembly.

A comprehensive review of the state’s criminal code and sentencing policies isn’t for the politically faint of heart or those afflicted with attention deficit disorder.

It’s tedious stuff, plowing through legal language and figuring out the unintended consequences of simplifying a criminal code that’s been altered and expanded by a legislature that changes in personalities and priorities every two years.

In other states where criminal codes have been overhauled or cleaned up to eliminate antiquated, redundant or conflicting laws, it’s been likened to scraping barnacles off an old hull. The gluey substance excreted by barnacles to attach themselves are one of the strongest natural adhesives in the universe.

The analogy may be hyperbole, but it’s not the first time I’ve invoked some exaggeration to illustrate the difficulty of the task. In a recent column, I wrote that a current state senator told me it took a couple of guys about three days to rewrite the entire criminal code back in the 1970s.

When I asked one of those guys, retired lawyer Bob Small of Indianapolis, how he achieved such a task, he looked surprised.

“It took us three-and-half years,” he said.

Small, who later became an influential policy adviser to Democratic governors Evan Bayh and Frank O’Bannon, worked for a state commission established in the early 1970s and given the express task of revamping the Indiana criminal code. Prior to that it had been rewritten in 1948.

The commission for which Small worked had another big task beyond cleaning up the criminal code. It was also charged with rewriting the code in a way to switch punishment from “indeterminate sentencing to determinate sentencing.”

Indeterminate sentencing put huge discretion in the hands of judges and parole boards to decide how long it would take an offender to be rehabilitated. Determinate sentencing limited that discretion and set up more of a prescriptive formula for punishment.

Long before Small and the commission took their recommendations to the legislature, they traveled around the state, inviting judges, prosecutors, defense attorneys and the public to help them wrestle with proposed changes.

It took the commission about three of those three-and-half years to build some consensus on difficult issues before the legislative bill to revamp the code was even drafted.

There’s more to the story than that, but the moral of the tale may be that big changes deserve big effort and a lot of time to move from resistance to acceptance.

The Criminal Code Commission was not the only such effort in the early 1970s. From the same period came the Judicial Study Commission, the Civil Code Commission, the Constitutional Revision Commission, and the Indiana Code Commission. All of these were major undertakings that led to major positive results. (They were not simply summer legislative study committees that met a couple times.)*

I've written before about the history of the Indiana Code and posted all of the documentation from the massive project. I was able to do so because I kept a set for the materials in my closet for nearly 40 years, until technology made compiling it in useful format and posting it on line feasible.

I wrote about the Judicial Study Commission in this July 30, 2007 ILB entry and posted part of the "Report of the Constitutional Revision Commission 1969" here. (I'm planning to expand this.)

I'd be pleased to do so for these other projects, if any of you have been hoarding similar documents...
_______________
*The 2007 Indiana Commission on Local Government Reform may be the closest recent example. The recent sentencing study was done by the national Pew Commission.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Indiana Law

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

Just posted by the 7th Circuit, this 5-page opinion "On Application for Certificate of Appeal" in Resendez v. Knight (SD Ind., Barker). Judge Ripple writes:

RIPPLE, Circuit Judge (in chambers). Joshua Resendez filed a petition for habeas corpus in the district court. His petition, and his subsequent request for a certificate of appealability (“COA”), was denied by the district court. Mr. Resendez has renewed his request for a COA in this court. Because Mr. Resendez’s petition presents a question concerning a defendant’s constitutional right to counsel that we have not yet settled, I grant Mr. Resendez’s application. * * *

Here, Mr. Resendez argues that, under the federal Constitution, the State was required to provide him with counsel for purposes of pursuing his motion under Indiana Code section 35-38-1-15. The operative question, therefore, is whether Mr. Resendez had a constitutional right to counsel in a proceeding under that section. * * *

We previously have not had an occasion to determine whether a motion brought pursuant to section 35-38-1-15 of the Indiana Code qualifies as a direct or collateral proceeding. Indiana courts have distinguished this proceeding from a state habeas proceeding and have recognized that it may raise sentencing errors that otherwise may be challenged through a direct appeal. See Robinson v. State, 805 N.E.2d 783, 786-87 (Ind. 2004). Similarly, they have noted that “[w]hen an error related to sentencing occurs, it is in the best interests of all concerned that it be immediately discovered and corrected.” Id. at 786. That this procedure is an alternative to direct appeal for sentencing issues and that it is designed to be brought as soon as the error is recognized both support a colorable case that the procedure should be characterized as direct for purposes of a defendant’s constitutional right to counsel.

Whether the procedure is characterized correctly as direct or collateral presents an antecedent non-constitutional question. A certificate of appealability still can be granted on this question, however, because Mr. Resendez’s petition raises a substantial constitutional issue, namely the right to counsel. See Davis v. Borgen, 349 F.3d 1027, 1029 (7th Cir. 2003) (“If there is a substantial constitutional issue, and an antecedent non-constitutional issue independently is substantial, then the certificate may include that issue as well.” (citing Slack, 529 U.S. at 484)). Because this court has not previously determined how a motion brought under section 35- 38-1-15 should be characterized,1 cf. Longworth v. Ozmint, 302 F. Supp. 2d 569, 574 (D.S.C. 2004) (listing that “the issue is very much unresolved” in support of its conclusion that a COA should issue), and because, given the factors this court considers, reasonable jurists could differ on whether this proceeding should be considered direct or collateral, Mr. Resendez’s application sets forth a substantial showing of the denial of a constitutional right. I express no view on the correct resolution of the question presented. Mr. Resendez’s application for a COA therefore is granted.

It is so ordered.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Ind. (7th Cir.) Decisions

Law - "Bearing Arms in Public Is Next Legal Battlefield "

Ashby Jones has the story today ($$$) in the Wall Street Journal. A quote:

"Whether the right to bear arms extends to outside the home is the next battlefield," said Adam Winkler, a law professor at UCLA and a Second Amendment expert. "And if that right does exist, courts then have to wrestle with a whole host of other issues, like how far it extends and what kinds of permitting regimes are permissible."
Nathan Koppel discusses the article in the WSJ Law Blog.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to General Law Related

Courts - Still more on: Ruling now issued in "Cancer Patients Challenge the Patenting of a Gene" [Updated]

Updating this July 30th ILB entry, the July 29 Federal Circuit ruling in Association for Molecular Pathology v. Myriad Genetics Inc. is important for an number of reasons. Sheri Qualters of the National Law Journal has this story this morning. The WSJ Law Blog has this entry.

[Updated] A reader writes to point out that "The lead attorney for Myriad Genetics -- who conducted the oral argument -- is Greg Castanias, a 1990 Maurer grad." Sure enough, from the opinion: "GREGORY A. CASTANIAS, Jones Day, of Washington, DC, argued for defendants-appellants."

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Courts in general

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

Updating this ILB entry from July 24th, the Sunday Louisville Courier Journal had a lengthy story by Chris Otts, headlined "Kentucky among just 4 states to get Amazon tax." Some quotes:

If you live in Louisville, you expect to pay Kentucky's 6 percent sales tax whenever you buy a book from Amazon.com.

Kentucky is one of only four states where Amazon acknowledges it has a responsibility to collect the tax. In contrast, just across the Ohio River, Indiana residents are not charged the state's 7 percent sales tax when they buy from the online retailer.

The approach is increasingly at odds with cash-strapped states like California and Texas, where battles with Amazon over sales tax revenue have turned intense in recent months.

Amazon cut its ties to thousands of California-based websites to get around a July 1 law that would have required it to collect sales tax from customers there. Amazon is seeking a voter referendum to overturn the law.

And when Texas sent Amazon a bill for $269 million in back taxes in February, Amazon fired all 112 employees at a Dallas-area distribution center. Amazon kept the warehouse open using temporary workers and is offering to create 5,000 jobs in exchange for a 4½-year exemption from collecting the state's sales tax.

Amazon has been fighting New York in court for three years over the issue, while seeking tax amnesty from states like Tennessee and South Carolina in exchange for distribution center jobs. * * *
[T]o attract warehouse jobs from Amazon, Indiana lawmakers have not pushed the company to collect the state's tax.

Amazon employs thousands of Hoosiers at three facilities. But in 2007, around the time Amazon established its first warehouse in Indiana, lawmakers repealed a portion of the law that could have required Amazon to collect sales taxes.

In July, Amazon announced its fourth facility in Indiana and credited Gov. Mitch Daniels and other state officials with “demonstrat(ing) their commitment to Amazon jobs and investment.” * * *

According to a 1992 Supreme Court decision, out-of-state retailers like Amazon can only be compelled to add sales taxes to their transactions in states where they have a real, physical presence or “nexus.”

As for Kentucky, “They (Amazon) have a pretty good footprint in our state, and so they acknowledged their responsibility to collect tax on their sales,” said Richard Dobson, executive director of the Office of Sales and Excise Taxes within the Kentucky Revenue Cabinet.

Kentucky was one of the first locations for Amazon when the company opened fulfillment centers in Lexington and Campbellsville in 1999, five years after the company started.

“There's a lot of transportation infrastructure here. For Amazon, that is an important thing,” said University of Kentucky economist Ken Troske.

It has since added facilities in Hebron and purchased Zappos.com, which has a Shepherdsville warehouse. Its total employment in Kentucky is about 4,300. * * *

Besides Kentucky, Amazon collects sales taxes through its namesake website in Washington state — where it has its headquarters — New York, Kansas and North Dakota. * * *

Indiana is among seven states where Amazon.com has facilities but does not charge sales taxes.

What Indiana gives up in sales taxes from Amazon, it gains in jobs and property taxes, said Mitch Roob, chief executive of the Indiana Economic Development Corp., the state's lead economic development agency.

Confused?

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Indiana Government

Ind. Gov't. - Grant saves historic Ind. newspapers

The AP is reporting:

INDIANAPOLIS (AP) - Indiana newspapers that captured key moments in history will be digitally preserved through a grant from the National Endowment for the Humanities.

The Indiana State Library has received more than $293,000 for the project to digitally preserve significant newspapers. Indiana is one of 25 states participating in the National Digital Newspaper Program that targets newspapers published between 1836 and 1922.

State Archivist Jim Corridan says the grant will help give Hoosiers instant access to historic newspapers through the Internet.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending July 29, 2011

The word is there will be no transfer list issued for the week ending July 29, 2011.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Indiana Transfer Lists

Ind. Law - More on: "Indiana utilities ordered to alter tree trimming practices, improve customer involvement "

Updating these earlier ILB entries (note the dates):

Ind. Law - "Indiana utilities ordered to alter tree trimming practices, improve customer involvement"

Jo Ellen Meyers Sharp of Hoosier Gardener has an informative post on the new order issued Nov. 30, 2010 on procedures utility companies will have to follow in the future to trim trees on private property. Here is an earlier...

Posted in The Indiana Law Blog on December 1, 2010 02:40 PM

Environment - "Indiana regulators ban IPL tree trimming on private land"

John Tuohy reports in the Indianapolis Star in a story posted late this morning that begins:State regulators have ordered Indianapolis Power & Light to stop cutting down and trimming trees on private property. The Indiana Utility Regulatory Commission issued a...

Posted in The Indiana Law Blog on December 14, 2009 01:56

Maureen Hayden has this comprehensive follow-up story today in the Terre Haute Trib-Star that is headlined "IURC seeks to change tree-trimming practices: Recent ruling gives homeowners more say in how utilities handle ‘vegetation management’"

Here is a link to the 111-page IURC order from last Nov. 30, 2010.

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to Environment | Indiana Law

Ind. Decisions - What is coming in September?

Here is an advance look at the oral arguments scheduled so far by the Supreme Court for the first part of September, 2011:

Thursday, 09/01/2011

Thursday, 09/08/2011Thursday, 09/15/2011

Posted by Marcia Oddi on Monday, August 01, 2011
Posted to

Ind. Decisions - Upcoming oral arguments this week and next

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

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

Webcasts of Supreme Court oral arguments are available here.




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

Wednesday, August 3rd

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

Next Wednesday, August 10th

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, August 01, 2011
Posted to Upcoming Oral Arguments