« August 2011 | Main | October 2011 »

Friday, September 30, 2011

Courts - "Videotape and the Scope of Traffic Stops Under the Fourth Amendment"

See this Volokh Conspiracy entry by Orin Kerr "about the Fifth Circuit new decision in United States v. Macias that a traffic stop was unconstitutional because the officer asked too many questions unrelated to the stop that extended the stop for too long."

Posted by Marcia Oddi on Friday, September 30, 2011
Posted to Courts in general

Courts - More previews of the upcoming SCOTUS term

"Supreme Court term could influence 2012 election," a long overview from Joan Biskupic of USA Today.

"Major Religion Case Ushers in SCOTUS Term" from the WSJ Law Blog.

"Supreme Court Preview: Health Care, Immigration And Privacy," a 33 min 30 sec audio story from NPR's Talk of the Nation.

Posted by Marcia Oddi on Friday, September 30, 2011
Posted to Courts in general

Courts - "Immigration law may face federal test: Justice Department considers challenge in Indiana, other states"

Heather Gillers and Tim Evans report the story in today's Indianapolis Star. Some quotes from the comprehensive account:

Indiana's tough new immigration law -- already being challenged in U.S. District Court by the ACLU -- could face yet another wave of opposition, this time from the federal government.

The U.S. Justice Department said Thursday it is considering challenging immigration laws in Indiana and several other states, including one largely upheld by an Alabama court Wednesday.

"To the extent we find state laws that interfere with the federal government's enforcement of immigration law, we are prepared to bring suit," Justice Department spokeswoman Xochitl Hinojosa told The Indianapolis Star on Thursday. * * *

Indiana's state law, approved this year, denies tax breaks to businesses that knowingly hire illegal immigrants; makes illegal immigrants ineligible for in-state tuition and certain scholarships; bars the use of consular identification cards; and allows state and local police to arrest people whose immigration status has been questioned by federal authorities -- even if those authorities have since determined that the person should be able to remain in the country.

Those last two provisions -- which the ACLU and others contend are in direct violation of the U.S. Constitution and federal law -- already have been placed on hold by U.S. District Judge Sarah Evans Barker, who is hearing the ACLU case, which is scheduled for November.

Posted by Marcia Oddi on Friday, September 30, 2011
Posted to Courts in general

Ind. Decisions - 2nd Supreme Court opinion filed late yesterday afternoon

In Franklin Electric Company, Inc. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development, an 8-page, 5-0 opinion, Chief Justice Shepard writes:

Franklin Electric formed two new subsidiaries and started new unemployment experience accounts with a low introductory contribution rate for each one. We hold that the new subsidiaries are not new employers and that Franklin Electric’s experience rate should have applied to contributions made by the subsidiaries. * * *

On November 18, 2008, the Department notified Franklin Electric that it had conducted an investigation and determined that Franklin Electric “did not dispose of a distinct and segregable portion of its organization, trade, or business.” (Division’s Ex. A.) The Department canceled Franklin Electric Manufacturing’s and Franklin Electric Sales’s experience accounts. All experience balances and liabilities reverted to Franklin Electric, and the Department recalculated Franklin Electric’s merit rate for 2005, 2006, 2007, and 2008. The Department demanded back payments, interest, and a ten percent penalty.

Franklin Electric appealed the Department’s determination to a liability administrative law judge (LALJ) who affirmed the Department’s determination that the three entities are a single employer, but waived the penalties imposed by the Department. The Court of Appeals affirmed the LALJ. Franklin Elec. Co. v. Unemployment Ins. Appeals of the Dep’t of Workforce Dev., 928 N.E.2d 880 (Ind. Ct. App. 2010). We granted transfer, vacating the opinion of the Court of Appeals. 950 N.E.2d 1199 (Ind. 2011) (table). We affirm the determination of the LALJ. * * *

Franklin Electric raises three issues on appeal, which we restate as whether Franklin Electric Manufacturing and Franklin Electric Sales acquired the “distinct and segregable portion” of Franklin Electric’s business required to make them “employers.” We hold that Franklin Electric Manufacturing and Franklin Electric Sales did not acquire a distinct and segregable portion of Franklin Electric’s business and thus did not qualify as “employers” under the laws governing Indiana’s unemployment compensation arrangements. * * *

Today’s holding is a narrow one. It deals only with the language “distinct and segregable” as used in the unemployment statutes and only concerns determining the proper merit rate for unemployment contribution. The instant ruling neither calls into question the validity of the wholly owned subsidiary arrangement, nor holds that the creation of a wholly owned subsidiary can never result in the new entity becoming a separate employer.

Posted by Marcia Oddi on Friday, September 30, 2011
Posted to Ind. Sup.Ct. Decisions

Environment - "Invasive species, other issues at center of presentations for lawmakers, officials"

Bowdeya Tweh reports today in the NWI Times on the legislative Environmental Quality Service Council's meeting held Thursday in Portage. Here is the agenda. (An archived videocast may be available at this site, but as of this writing it has not been upload).

Today's story begins:

PORTAGE | Managing Asian carp was the top agenda item Thursday during a legislative panel discussion about environmental issues facing the state.

The Indiana General Assembly's Environmental Quality Service Council also heard presentations from state officials on other Great Lakes concerns including water quality, conserving water and managing ballast to deter invasive species.

Keeping the bighead and silver carp from the Great Lakes is difficult but ongoing, said John Goss, Asian carp director for the White House Council on Environmental Quality.

In a presentation to the council and about 30 audience members at the Northwestern Indiana Regional Planning Commission building, Goss outlined some of the 40 projects under way to study or control the growing threat the fish pose to Great Lakes ecosystems. He said research, which shows carp already present in large numbers in the Mississippi and Illinois rivers, are threatening to move upstream.

[More] John Robbins of the Gary Post-Tribune has this report of the meeting yesterday. Some quotes:
Goss made it clear that the Asian carp are in Indiana waters, “up to Huntington on the Wabash and Seymour on the White River and moving into Sugar Creek and the Blue River.” Traces of the Asian carp, though no live fish, have been found in Lake Calumet.

In describing the threat Goss said the carp “grow very fast and are like giant vacuum cleaners, sucking up the food supply and depriving native fish of their food. The goal is to keep them out of the Great Lakes,” said Goss.

Goss described efforts to date to restrict entry by the Asian carp to the Great Lakes. The carp were introduced in the southern U.S. in the 1970s and have been steadily making their way up the Mississippi ever since.

Goss said that “the spawning population in Illinois is about 150 miles from Lake Michigan.” Electric barriers placed along the Illinois River have kept the advance in check for 10 years.

Goss told the Council the Asian carp could invade the Great Lakes through another avenue in Indiana ­— the Eagle Marsh near Fort Wayne, which connects the Mississippi river basin with the Lake Erie basin. In a time of flooding, carp in Indiana could easily move across the watershed divide. Goss said four Asian carp have been found in Lake Erie.

Posted by Marcia Oddi on Friday, September 30, 2011
Posted to Environment

Ind. Courts - Community Court of Indianapolis hopes community service has impact on minor lawbreakers

John Tuohy reports in today's Indianapolis Star about the Community Court of Indianapolis, now celebrating its 10th year. Some quotes from the long story:

Public officials, professional athletes and others who commit minor crimes find out [the ramifications] in the Community Court of Indianapolis.

"These misdemeanors, this little lawbreaking, affects more than you personally," Superior Court Judge David Certo said. "It has a cumulative impact on the whole community."

That's the message the court has hammered home for 10 years. The only program of its kind in Indiana, Community Court -- anchored in Fountain Square -- assigns community service to misdemeanor offenders who plead guilty. It also plunks those offenders before a citizens "impact panel" so they learn the larger ramifications of their petty crimes. * * *

Community Court has a criminal and environmental branch, two small courtrooms and two holding cells. It has gained popularity since 2001, when 3,165 hours of community service were assigned.

Last year, court officials doled out nearly 30,000 hours, worth $217,050 in labor to the community, said Jason Cochran, the court coordinator.

Posted by Marcia Oddi on Friday, September 30, 2011
Posted to Indiana Courts

Law - Rights collide ...

Recalling earlier ILB entries such as "Workers' Religious Freedom vs. Patients' Rights" (Nov. 18, 2008) and this one from Dec. 18, 2008 re "whether pharmacy owners have a state-granted 'right of conscience' to turn away customers seeking so-called 'morning-after pills'", Tom Coyne of the AP reported Sept. 28th under the headline "Notre Dame president protests birth control inclusion." A few quotes:

President Barack Obama's health care overhaul should be changed so that religious school's such as the University of Notre Dame aren't required to go against their beliefs and provide birth control to students and employees, the school president says.

The Rev. John Jenkins wrote a letter Wednesday to Kathleen Sebelius asking the Obama administration to broaden the definition of religious employer currently under consideration to ensure the school can continue its provide health care without going against the teachings of the Roman Catholic Church.

He said the change in definition of religious employer is far narrower than current law and would require Notre Dame and other Catholic universities to offer prescription contraceptives and sterilization services to students and employees through health care plans.

Finally, this long Sept. 27th NY Times story reported by Thomas Kaplan is headed "Rights Collide as Town Clerk Sidesteps Role in Gay Marriages." Some quotes:
“New York law protects my right to hold both my job and my beliefs,” [town clerk Rose Marie Belforti] said in an interview last week, pausing briefly to collect $50 from a resident planning to take 20 loads of refuse to the town dump. “I’m not supposed to have to leave my beliefs at the door at my government job.”

But the couple, Deirdre DiBiaggio and Katie Carmichael of Miami, are arguing that the law requires all clerks in New York to provide marriage licenses to same-sex couples. The couple are being represented by a liberal advocacy organization, People for the American Way, based in Washington. * * *

Ms. Belforti is one of several town clerks who have said the state’s Marriage Equality Act, the measure approved in June that legalized same-sex marriage in New York, violates their religious beliefs. Two clerks resigned in July rather than comply with the law.

Gov. Andrew M. Cuomo, a Democrat, who made same-sex marriage a priority of his first year in office, has expressed little sympathy for clerks who object to the law. “When you enforce the laws of the state, you don’t get to pick and choose,” he said this summer. And the State Health Department issued a memorandum to clerks that refusing to issue marriage licenses to same-sex couples would be a misdemeanor.

Posted by Marcia Oddi on Friday, September 30, 2011
Posted to General Law Related

Ind. Courts - Greene County approves final BANs courthouse refinance payment

Updating this June 23, 2011 entry headed "Settlement offer is on the table in 8-year-old courthouse project legal fight," Nick Schneider, Assistant Editor of the Greene County Daily World reported Sept. 28th:

The Bank Anticipation Notes (BANS) taken out in March 2010 to refinance a $4 million portion of the courthouse building and renovation project will now be paid off -- thanks to proceeds received from the county's lawsuit against a contractor, engineers, and an architectural firm.

On Monday, the Greene County Council authorized the payment of $300,000 from the Rainy Day Fund to help pay off the remaining $2,473,554 balance on the BANs account with MainSource Bank.

In June, the county settled its long-standing courthouse lawsuit with a $6,532,000 out-of-court agreement in Owen Circuit Court.

Under terms of the agreement, United Consulting Engineers, DLZ Indiana LLC, Alt & Witzig Engineering, Inc., Weddle Brothers Construction Company, and Beaty Construction Company were ordered to pay Greene County $5,454,000, which included a $2,954,000 cash payment before July 15.

DLZ Indiana will pay another $2,500,000 promissory note over a five-year period with an additional $310,000 in interest (4 %).

County Auditor Matt Baker pointed out that the county is receiving $138,000 every quarter as part of the settlement agreement.

From this money, the council intends to repay the money appropriated from the Rainy Day Fund.

"This will wipe it (the BANs) off," a relieved county council president John Wilkes stated.

The construction project has been substantially complete since mid-2008, but the lawsuit originated in 2004.

Posted by Marcia Oddi on Friday, September 30, 2011
Posted to Indiana Courts

Ind. Courts - Adams County court security a growing concern

So reports J. Swygart in this story dated Sept. 29 in the Decatur Daily Democrat. Some quotes:

The location of a September 16 police standoff in Decatur, during which a Berne man was shot and critically injured by law enforcement authorities outside the Adams County Superior Court building, was not a random one, according to a county jurist.

And the proximity of the incident to the court building on Third Street could force local policy-makers to implement many of the court security measures recommended more than 10 years earlier.

According to initial police reports, on the Friday evening in question Jerry Nussbaum of Berne was found "waving a handgun and speaking in an erratic and angry manner" in front of the court building. Nussbaum was shot by an officer after allegedly raising his gun toward the police.

But Superior Court Judge Pat Miller this week said Nussbaum apparently was at that location for a very specific reason.

"From what I've been told, he said he was there looking for a judge," said Miller. "He was overheard saying he wanted the damned judges to do their damned jobs."

Because the standoff took place near the court building, Miller is required to submit a full report of the incident, including all police reports, to the State Court of Administration. And that report will likely only reinforce something Miller said has been common knowledge for the past decade or more: Security measures are woefully lacking not only at the Superior Court building but at the county courthouse and county Service Complex, as well. * * *

Because of the incident earlier this month outside the superior court, Miller expects another visit from the U.S. Marshal Service "to study my building and the Service Complex" and make additional security suggestions. And what they will find, he said, is the nearly complete absence of any court security measures currently in place.

"We have no guards, no metal detectors, no locked doors, no buzzers ... nothing," said the judge. "If Jerry Nussbaum had come to my building at 4 p.m. instead of 10 p.m., well ... that's a scary thought. We have a lot of security problems here that need to be corrected. I'm just not sure how to do that."

Currently the lone court security measure comes in the form of one police officer who is shared between the superior and circuit courtrooms. That setup, Miller said, is less than ideal. And the September 16 incident outside his court "really drove home the point that things need to change."

But those changes, Miller conceded, will be costly. He has talked with Adams County Circuit Court Judge Frederick Schurger, as well as to judges in neighboring counties and officials at the state level, about the availability of state or federal funding to assist in implementing security updates. He has also talked with Sheriff Shane Rekeweg and Chief Deputy Eric Meyer about possible solutions to the security inadequacies.

Posted by Marcia Oddi on Friday, September 30, 2011
Posted to Indiana Courts

Thursday, September 29, 2011

Courts - "First Monday in October" is next week

The SCOTUS' term begins Monday, Oct. 3rd. "Full docket as Supreme Court term begins" is the heading to a comprehensive story by Ken Klukowski in today's Washington Examiner.

Posted by Marcia Oddi on Thursday, September 29, 2011
Posted to Courts in general

Courts - More on: Excellent background article on legal challenges to the Affordable Care Act

Updating this ILB entry from Sept. 26th, Adam Liptak reports in today's NY Times in a long story headed "Supreme Court Is Asked to Rule on Health Care." Some quotes:

WASHINGTON — The Obama administration asked the Supreme Court on Wednesday to hear a case concerning the 2010 health care overhaul law. The development, which came unexpectedly fast, makes it all but certain that the court will soon agree to hear one or more cases involving challenges to the law, with arguments by the spring and a decision by June, in time to land in the middle of the 2012 presidential campaign.

The Justice Department said the justices should hear its appeal of a decision by a three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, that struck down the centerpiece of the law by a 2-to-1 vote. * * *

Also on Wednesday, two sets of plaintiffs who had won on the core issue in the 11th Circuit filed their own requests for Supreme Court review.

“Time is of the essence,” wrote Paul D. Clement, a former United States solicitor general who represents 26 states that are challenging the law. “The grave constitutional questions surrounding the A.C.A. and its novel exercise of federal power will not subside until this court resolves them.”

The 11th Circuit, in a decision issued in August, ruled that a part of law requiring the purchase of insurance — the so-called individual mandate — was an unconstitutional exercise of Congressional power.

According to a press release issued by Indiana AG Zoeller on Sept. 28th:
INDIANAPOLIS - Today 26 states including Indiana asked the United States Supreme Court to consider their legal challenge to the federal health care law.
See also this SCOTUSblog post from yesterday by Lyle Denniston.

Posted by Marcia Oddi on Thursday, September 29, 2011
Posted to Courts in general

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

This July 19, 2011 ILB entry reported that the Indy City-County Council has passed an ordinance on predatory towing.

You can find the new ordinance here, on the City's code enforcement page.

Today WTHR 13 report
s that:

The mayor of Indianapolis has launched a new plan after Eyewitness News anchor Andrea Morehead exposed unfair towing from private parking lots.
Maybe I'm missing something, but the "new plan" looks like the July 19th ordinance.

[More at 9:06 pm] Okay, this clears it up, Fox 59 is reporting: "City announces hotline, email to address towing complaints."

The hotline number is 327-TOWS or you can email tows@indy.gov to report an issue. If you report an issue make sure to name the date, location and time of the tow in question, as well as leave your contact information.

Posted by Marcia Oddi on Thursday, September 29, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

N.W. v. Indiana Dept. of Child Services (NFP)

Jenna L. Zent, et al. Stallard & Associates, Inc. (NFP)


NFP criminal opinions today (2):

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

Bryan J. Fields v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 29, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Another fee-related disciplinary opinion from the Supreme Court

In the Matter of Everett E. Powell, II is an 8-page per curiam opinion in a disciplinary action. The respondent is pro se. The facts are difficult to summarize, so I wont' try. From the opinion:

We find that Respondent, Everett E. Powell, II, engaged in attorney misconduct by collecting a clearly unreasonable and exploitive fee from a vulnerable client in violation of Indiana Professional Conduct Rule 1.5(a). For this misconduct, we find that Respondent should be suspended from the practice of law in this state for at least 120 days without automatic reinstatement.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. Respondent's 2004 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4. * * *

Collection of an unreasonable fee. The Commission charged Respondent with violating Indiana Professional Conduct Rule 1.5(a), which prohibits making an agreement for, charging, or collecting an unreasonable fee.

Even if a fee agreement is reasonable under the circumstances at the time entered into, subsequent developments may render collection of the fee unreasonable. * * *

In light of Respondent's collection of an unreasonable fee from a vulnerable client, his lack of insight into his misconduct, and the other aggravating circumstances described above, we conclude that Respondent should be suspended for 120 days without automatic reinstatement.

Posted by Marcia Oddi on Thursday, September 29, 2011
Posted to Ind. Sup.Ct. Decisions

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

In Cedar Farm, Harrison County, Inc. v. Louisville Gas and Electric (SD Ind., Hamilton), a 13-page opinion, Judge Williams writes:

This case involves an attempt by the landowner Cedar Farm to expel the Louisville Gas and Electric Company from its property and terminate an oil and gas lease for violations of certain portions of the lease. Because we find that the lease allows for a damages remedy, and that Cedar Farm has not shown that damages are inadequate to compensate for the harm to its property, we affirm the district court’s grant of summary judgment to Louisville Gas and Electric on Cedar Farm’s ejectment claim.
Good discussion of oil and gas leases under Indiana law.

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

Stage collapse - "45 Tort Claims Filed In Indiana State Fair Stage Collapse"

From Indy 6 News this morning, a brief story reporting:

INDIANAPOLIS -- A total of 45 tort claims have been filed in the aftermath of the Indiana State Fair stage collapse, doubling the total from just a few weeks ago. * * *

So far, only one person has filed for money from the stage collapse relief fund, a separate pool from which the families of people who died and those who were hurt can get money to help defray medical costs.

Officials think that number isn't surprising, because the filing process requires medical documentation that can take some time to gather.

From WISH TV on Sept. 27th, a story headed "Lawmaker pushes for liability law fix." A few quotes:
Is Indiana's liability limit too low?

Until about the mid 1940's you couldn't sue any state or the federal government for any amount of money. And while you can get money for mishaps now, the amount varies widely and often carries plenty of qualifications.

"We need enough money to compensate people from injuries and to take responsibility for what the state did and failed to do,” said Representative Ed DeLaney (D-Indianapolis).

DeLaney blames the state for the disaster at the state fairgrounds.

"We made a late call, we didn't tell people to evacuate. We should figure out what the overall cost is and put our money up," he said.

Minnesota legislators took just that kind of action after the 2007 collapse of the Interstate 35W bridge. Thirteen people died in that collapse. Minnesota law limits the amount you can collect to $1 million per incident and $300,000 per victim, but in this case it voted to put up $36.6 million in compensation.

Representative DeLaney has not specified a number, but he said it's likely at least double the $5 million limit.

"I want the victims and their families to know there will be adequate money. That's all I'm asking," he said.

With seven dead and dozens of injured, DeLaney believes the $700,000 per individual and $5 million per incident is not enough compensation for fairgrounds victims. But compared to neighboring states, Indiana's law is relatively generous.

Individually, you can't get more than $200,000 in Kentucky or $350,000 per incident. In Ohio, your lawsuit is limited to $250,000, or three times the loss of wages and cost of medical bills. Though there is no cap if you suffer permanent physical injury. And, Illinois has no cap, but you can't sue in a regular court. You have to go to a special "Court of Claims" which has appointed members.

Posted by Marcia Oddi on Thursday, September 29, 2011
Posted to Stage Collapse

Courts - "Justice for sale"

That is the subject of a special section of the October 2011 issue of The American Prospect.

Posted by Marcia Oddi on Thursday, September 29, 2011
Posted to Courts in general

Environment - "Homeowners say Wisconsin law favors big farms over them"

That is the headline to a long AP story yesterday by Dinesh Ramde of the AP. A few quotes:

MAGNOLIA, Wis. (AP) — John Adams can't see the nearly 3,000 cows on the dairy farm two miles from his Wisconsin home, but when the wind blows he can smell them.

The stench gives him and his wife headaches. They blame the big farm for contaminating their air and polluting the groundwater well they use for drinking, bathing and watering their garden. They no longer feel safe eating the vegetables they grow.

Adams also blames the state, which requires local governments to grant permits to large farms that meet certain limited criteria, even if there are additional environmental concerns. The rural farming town where he lives tried to impose stricter rules, only to be overruled by the state agriculture department.

Adams and seven neighbors, along with the town of Magnolia, sued the state and the farm in the first case of its kind to reach a state supreme court and the result could set a precedent throughout the Midwest. Similar cases have been filed in Illinois, Indiana, Minnesota, Nebraska, Ohio and Oklahoma, and two juries in Missouri have already handed out multimillion-dollar awards to homeowners who complained of intolerable odors from so-called factory farms. * * *

After several lower-court rulings, the Wisconsin Supreme Court was asked to weigh in on whether state can prevent the town from holding the farm to a higher standard. Its decision is expected in about a month.

From Indiana, this Louisville Courier-Journal story yesterday by Grace Schneider, headed "Residents question swine farm plans at IDEM session in Corydon." The story begins:
Several dozen Harrison County residents stopped in Tuesday afternoon at an open house held by the Indiana Department of Environmental Management to provide information about a proposed 4,000-head swine farm expansion in the Elizabeth area.

While opponents of the proposed confined animal feeding operation, or CAFO, held signs in protest outside the entrance to the county's new government center in Corydon, three IDEM representatives stood inside a conference room passing out information and answering questions about the state's permitting and inspection process for the application by D. Livestock Inc.

Posted by Marcia Oddi on Thursday, September 29, 2011
Posted to Environment

Ind. Gov't. - Fort Wayne City Council heading paperless with iPad

Benjamin Lanka has the report in today's Fort Wayne Journal Gazette. Some quotes:

Clerk Sandy Kennedy on Wednesday announced her office bought iPad tablet computers for the council in an effort to eliminate the reams of paper she uses to print ordinances, agendas and supporting documents.

The city will spend about $6,500 to equip all nine council members, Kennedy and the council attorney with the devices, along with having a spare.

Kennedy estimated her office will save $10,000 a year on paper costs by moving to electronic documents. In addition, the documents given to council members will be available on the clerk’s website. * * *

While the iPads have been bought, Kennedy said she will leave it up to the council when to go paperless. She said she wants members to feel comfortable with the technology before using it exclusively.

Posted by Marcia Oddi on Thursday, September 29, 2011
Posted to Indiana Government

Wednesday, September 28, 2011

Ind. Decisions - Court of Appeals issues 4 today (and 3 NFP)

For publication opinions today (4):

In In the Matter of T.N., Alleged to be CHINS; G.N. v. IDCS, and Child Advocates, Inc., an 11-page opinion, Judge May writes:

G.N. (Father) challenges the determination his daughter, T.N., is a child in need of services (CHINS). He argues the trial court violated his right to due process when it found his daughter a CHINS based on the admission of her mother, M.B., without allowing Father to contest that allegation at a hearing. We agree the trial court violated Father's right to due process, reverse the adjudication, and remand for further proceedings consistent with this opinion.
In M Jewell, LLC v. Max M. Powell and Marion School Employees Federal Credit Union, a 6-page opinion, Judge May writes:
M Jewell, LLC (Jewell) appeals the denial of its petition for an order directing the auditor of Grant County to issue a tax deed. Jewell argues the trial court should have granted it a tax deed because Max Powell did not redeem his property within the statutory redemption period. Jewell also argues the trial court erred by extending Powell’s redemption period. We affirm. * * *

The trial court determined Powell was prejudicially misled by the incomplete information given to him by the Grant County Treasurer’s Office, and that determination supports piercing the statutory rules to prevent injustice.

In In Re: Larry L. Thompson Revocable Trust; Deanna Thompson Stull v. Larry L. Thompson Revocable Trust, Derek Thompson, and Vicki Thompson Craver, an 11-page opinion, Sr. Judge Barteau writes:
Deanna raises one issue, which we restate as: whether the trial court’s judgment in favor of the Trust, Derek, and Vicki is erroneous.

In addition, the Trust, Derek, and Vicki contend that Deanna’s appeal is frivolous and request appellate attorney’s fees. * * *

For the reasons stated above, we affirm the judgment of the trial court and deny the Trust, Derek, and Vicki’s request for appellate attorney’s fees.

In K.S. v. B.W. , a 6-page opinion, Judge May writes:
K.S. appeals an order granting K.S.'s ex-boyfriend, B.W., visitation with her daughter, M.M. K.S. alleges the court erred by granting visitation and abused its discretion by denying her request for attorney's fees. We reverse in part and affirm in part. * * *

We must accordingly reverse the grant of visitation to B.W. because B.W. is not M.M.'s father. While he was an important part of M.M.'s life at one time, Indiana law does not provide for an order of visitation under this circumstance. * * *

[KS] did not prevail at trial, and thus an award of attorney's fees is not appropriate pursuant to Ind. Code § 34-52-1-1(b)(2). Accordingly, we affirm the trial court's denial of attorney's fees.

NFP civil opinions today (1):

Robert Endriss v. Review Board of the Indiana Department of Workforce Development and Fellon-McCord Associates (NFP)

NFP criminal opinions today (2):

Brett Zagorac v. State of Indiana (NFP)

Telisa Arnold v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 28, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court rules in Desmond Turner case

In Desmond Turner v. State of Indiana, a 27-page, 5-0 opinion in a direct appeal from the trial court, the Supreme Court today affirms the judgment of the trial court.

Here is a long list of earlier ILB entries on the Turner case.

Today's opinion is written by Justice Rucker. It begins:

Twenty-five year old Desmond Turner was charged in a multi-count information with murder, felony murder, criminal confinement, robbery, and burglary. The State also sought life imprisonment without parole. After a bench trial Turner was found guilty as charged and the trial court sentenced him to life imprisonment without parole on the murder conviction. In addition, the trial court sentenced Turner to a term of years for the confinement, robbery, and burglary convictions. Turner now appeals, contending the trial court erred in admitting certain evidence and that the evidence is insufficient to support his convictions. We affirm the judgment of the trial court.

Posted by Marcia Oddi on Wednesday, September 28, 2011
Posted to Ind. Sup.Ct. Decisions

Stage collapse - More on "Several new lawsuits in Indiana State Fair stage collapse"

As reported in this ILB entry Sept. 27th:

In addition yesterday Allen filed suit in federal court challenging the Indiana Tort claims act, which limits the State's liability to $5 million per incident.
Here now is the 20-page class action complaint filed Sept. 26, 2011 in the US District Court for the SD Indiana in the case of ESTATE OF TAMMY JEAN VANDAM, by its duly appointed Special Administrator, HORIZON TRUST & INVESTMENT MANAGEMENT, N.A., JANEEN BETH URSCHEL, ESTATE OF CHRISTINA SANTIAGO, by its duly appointed Administratrix, ALISHA BRENNON, ALISHA BRENNON, ESTATE OF ALINA R. BIGJOHNY, by its duly appointed Special Administratrix, POLLY A. BIGJOHNY, and TAMARA PORTER on behalf of themselves and those similarly situated, Plaintiffs v. MITCHELL E. DANIELS, JR., in his official capacity as Governor of the State of Indiana, and GREGORY ZOELLER in his official capacity as Attorney General of the State of Indiana, Defendants.

Here are some quotes from the complaint (1:2011cv01302):

28. To date, there are seven known deaths that resulted from the Stage Collapse and various news reports have placed the number injured above sixty (60) people.

29. The named Plaintiffs herein have all filed civil suits for damages against private defendants and have each filed applicable tort claim notices with the State of Indiana and the relevant subdivisions.

30. Under I.C 34-13-3-11, each governmental entity has ninety days to approve or deny the claim. Denial of a claim is a prerequisite to suit under I.C 34-13-3-13. Thus, under the statute, no suit can be brought against any governmental entity prior to November 11, 2011, unless Defendants deny such claims.

31. In the interim, Defendants have abused their settlement authority vested by the Indiana Tort Claims Act to create a policy or scheme of compensation based on arbitrary and capricious factors, including the speed with which the claim is made. To carry out this scheme and policy, Defendants have established a website and hired third party administrators to process claims, depriving Plaintiffs of the right to have their claims decided openly, fairly and with due process.

32. The effect of Defendants' scheme and policy is to exhaust the $5,000,000.00 limitation on liability without addressing many, perhaps most, of the Plaintiffs' claims. The individual cap on damages for claims against the government is $700,000.00. Thus, even if the wrongful death claimants alone were to each settle for the full extent of the individual cap, then the overall recoverable amount would nearly be exhausted. This would bar from recovery more than sixty (60) injured claimants, many of which have suffered catastrophic injury and damages.

33. The inherent flaw and unconstitutional nature of this policy and scheme is that the decision as to which plaintiffs are compensated, and which are not, is not in the hands of a judge or jury but in the arbitrary and capricious hands of the State. Rather than grant all plaintiffs a fair and proportional share and opportunity at the limited fund, the State has compelled a chaotic rush to settlement, compelling claimants, whether represented or unrepresented by counset to settle fast and for less than fair and reasonable compensation or risk receiving no compensation whatsoever. Defendants' policy and scheme arbitrarily deprives those who choose to exercise their due process rights, to seek full and fair adjudication of their claims by a judge or jury, of any compensation whatsoever.

34. What is further inherently unjust in the State's system is that it has strong potential to drive down the valuation of damages in all cases. After the State exhausts its cap, there is nothing preventing the State from admitting liability or keeping other parties from implicating the State.

35. Underpinning the State's substantive and procedural violation of due process is the fact that the limit on aggregate liability imposed by I.C 34-13-3-4 is itself unconstitutional under both the United States and the Indiana Constitutions. The aggregate limits on liability in Indiana are $5,000,000.00 per occurrence and have been in place for over thirty-seven years. See I.C 34-4-16.5-4 (1974, now repealed). There are no indexes for inflation and the limit on individual claims has more than doubled in the interim. See I.C 34-13-3-4(a)(1).

36. Consequently, injunctive and declaratory relief is necessary to settle this dispute and will serve a useful purpose in clarifying the legal relationship between the parties. Further, there are no better or more effective alternative remedies to address these issues.

Posted by Marcia Oddi on Wednesday, September 28, 2011
Posted to Stage Collapse

Ind. Law - Use of "may" and "shall" ... with repect to the issue of what "may not" means

Re the Sept. 25th ILB entry headed "Names on the ballot, and the 'may' issue":

The current version of the Indiana General Assembly's bill drafting manual provides, in Chapter 2, Drafting Rules:

C. Rules

(10) Commanding, Authorizing, Forbidding, and Negating

  • To create a right, say "is entitled to".
  • To create discretionary authority, say "may".
  • To create a duty, say "shall".
  • To create a condition precedent, say "must".
  • To negate a right, say "is not entitled to".
  • To negate discretionary authority, say "may not".
  • To negate a duty or a mere condition precedent, say "is not required to".
  • To create a duty not to act, say "shall not".
[From: Dickerson, F.R., Legal Drafting, West Publishing Company (1981), p.182]

Avoid false imperatives. Avoid using hortatory qualifiers such as "will", "should", and "ought" in the text of a legislative measure.

From the Constitution. The phrase "may not" appears in the Indiana Constitution in 8 instances:

Posted by Marcia Oddi on Wednesday, September 28, 2011
Posted to Indiana Law

Ind. Gov't. - "All Lake County candidates will get a piece of Nov. 8 ballot"

Updating this ILB entry from Sept. 21, headed "In Tippecanoe County, unopposed to remain off ballots for now," and this one from Sept. 25th, headed "Names on the ballot, and the 'may' issue," Bill Dolan reports today in the NWI Times:

CROWN POINT | Scores of unopposed candidates for city and town offices were winners Tuesday in a decision guaranteeing them a spot on the Nov. 8 ballot.

The Lake County elections board voted 3-2 along party lines to put the names of all candidates in this year's general election before the voters.

The move came despite a new state law interpreted by the two Republican board members as a command to delete uncontested races from the county's polling places as a waste of taxpayer resources, since the candidate can't lose. * * *

Keeping uncontested races on the ballot has a price.

Merrillville Councilwoman Carol Miano, the town's Democratic chairwoman, asked the board Tuesday to spare the town from having to deploy poll workers for a townwide election when there are contested races in only three election wards. "This would save our town $17,000 to $20,000," Miano pleaded.

Board members said they sympathize with the town's financial troubles and plan to hold a special meeting Oct. 4 to entertain requests from Merrillville and any other cities and towns that want to consolidate their polling places to save money.

Posted by Marcia Oddi on Wednesday, September 28, 2011
Posted to Indiana Government

Ind. Gov't. - "Sellersburg looking into tech insurance"

Here is an interesting item by Braden Lammers of the New Albany News & Tribune:

SELLERSBURG — The town of Sellersburg is looking to protect itself from some high-tech disasters.

An optional policy being offered by the town’s insurance agent-of-record Mike Whalen, with ISU Insurance and Investment Group, would protect Sellersburg against a breach of security.

Included under breach of security are identity theft, data theft or other personal information that could be stolen off of the town’s computer system.

In addition to the breach of security protection, Whalen offered electronic media liability coverage.

The second optional policy would protect the town against libel, slander, plagiarism, violation of privacy and copyright infringement.

Whalen offered the example of someone posting something on the town’s Facebook page about an individual, who in turn decides to sue Sellersburg over the post.

No decision was made by the council on picking up either policy, as several council members asked for more time to review the optional coverage.

The annual premium for the breach of security coverage would total $2,640 and the electronic media liability coverage would be 10 percent of the breach of security coverage, or about $260.

Posted by Marcia Oddi on Wednesday, September 28, 2011
Posted to Indiana Government

Tuesday, September 27, 2011

Ind. Decisions - Bad news for those who still answer their landlines and cells

Federal Judge William T. Lawrence has issued a permanent injunction this afternoon against the enforcement of Indiana’s Automated Dialing Machine Statute (“IADMS”), Ind. Code 24-5-14 with regard to interstate calls made to express political messages.

The case is Patriotic Veterans v. State of Indiana, ex rel. Greg Zoeller. From the opinion:

Plaintiff Patriotic Veterans, Inc., is an Illinois non-profit corporation that exists for the purpose of informing voters of the positions taken by candidates and office holders on issues of interest to veterans. In furtherance of its mission, the Plaintiff wishes to place automated interstate telephone calls to Indiana residents to communicate political messages relating to particular candidates or issues. * * *

If the IADMS did not exist, the Plaintiff “would place automated phone calls related to its mission to Indiana Veterans and voters.” Indiana Attorney General Greg Zoeller has declined to exempt political calls from enforcement under the IADMS1 and would seek fines and injunctive relief against the Plaintiff if it placed automated political calls to Indiana residents. Indeed, violation of the IADMS constitutes a Class C misdemeanor. Ind. Code 24-5-14-10. * * *

Specifically, the Plaintiff alleges that the IADMS is unenforceable, at least as applied to political messages, because it violates the First Amendment. The Plaintiff also alleges that the IADMS is preempted by the Federal Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). Because “federal courts are supposed to explore all non-constitutional grounds of decision first, to ensure against unnecessary constitutional adjudication,” [cites omitted by ILB] the Court will consider the parties’ preemption arguments first. * * *

For the reasons set forth above, the Court determines that the IADMS is preempted by the TCPA as it applies to the interstate use of automatic telephone dialing systems. Accordingly, the Court GRANTS the Plaintiff’s request for an injunction against enforcement of the IADMS with regard to interstate calls made to express political messages. See Complaint at 8 (asking Court to “enter a permanent injunction enjoining the Defendants and their agents from taking any action under or to enforce or implement the ADMS with respect to political calls and interstate communications”). Defendant Greg Zoeller, in his official capacity as Attorney General of the State of Indiana, is hereby ENJOINED from enforcing the IADMS, Indiana Code 24-5-14-1, et seq., with respect to any interstate telephone call made to express a political message.

For background, see this Sept. 16th Fort Wayne Journal Gazette story by Niki Kelly, headed "Zoeller warns politicos not to 'robo-call.'"

Apparently, as a result of today's ruling, robo-calls placed from out-of-state may not be enforced against. How to tell?

[More] A reader has inquired about Freeeats, another robo-call case with a long history both in federal and state court. Judge McKinney upheld the Indiana law in an Oct. 2006 ruling. The 7th Circuit then dismissed in Sept. 2007, "saying the case doesn't belong in federal court," according to a story at the time. The case then made its way through state court, the latest entry the ILB has is of oral argument before the Supreme Court on Thursday, January 20th in State of Indiana v. FreeEats.

Posted by Marcia Oddi on Tuesday, September 27, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Randolph County Courthouse clock involved in crash"

After dozens of stories about the Randolph County Courthouse and whether it should be torn down, abandoned, or restored, the news calmed down (or the ILB lost track) in early 2009.

Today however, another story, and not a good one. WQLK is reporting:

(Englewood, OH)--The new clock for the courthouse in Randolph County ended up in a western Ohio creek Monday night.

It happened on I-70 near Englewood. The flatbed truck was hauling the large clock from Kentucky to Winchester when the driver went into a coughing spell. He was coughing so hard that he, his truck, and the clock went off the highway and into a creek.

It took crews several hours to pull everything out of the creek, partly due to environmental concerns that included diesel fuel leaking into the water. The driver was treated at the scene.

The clock was supposed to have been installed on the new Randolph County courthouse tower by the end of the week. There’s no word yet on what last night’s accident will do to that timetable.

Posted by Marcia Oddi on Tuesday, September 27, 2011
Posted to Indiana Courts

Ind. Courts - "Audit says $310,325 missing from Merrillville Town Court"

Dan Carden has the story this afternoon on the NWI Times site, along with a link to the SBA audit.

Some quotes from the story:

INDIANAPOLIS | A former Merrillville Town Court employee is accused of diverting $310,325 in traffic ticket, ordinance violation and misdemeanor bond payments.

Virlissa Crenshaw's duties as a court clerk included picking up envelopes containing bond payments made after-hours at the police department when the clerk's office was closed.

Crenshaw failed to deposit those bond payments in 456 cases starting in 2006, according to a State Board of Accounts audit released Tuesday. * * *

The Town of Merrillville is insured against employee theft for up to $50,000.

Merrillville Town Court Judge Gina Jones said she contacted Indiana State Police and the State Board of Accounts after discovering financial irregularities when she took office in January.

Posted by Marcia Oddi on Tuesday, September 27, 2011
Posted to Indiana Courts

Ind. Gov't. - "Fired prisons chief Ed Buss still talks; Gov. Rick Scott not happy "

Did you follow with interest the ILB entries from Aug. 24th and Aug. 26th on former Indiana Corrections head Ed Buss' short career in a similar position in Florida, under the heading "Buss out as Florida Corrections Head."

If so, you will want to read this story today by Steve Bousquet, Tampa Bay Times columnist. Particularly interesting is the part about whether a department head may be compelled to testify in a lawsuit against the state:

"It's a common principle that high-ranking people in government don't testify," [Florida Governor] Scott told the Times' Katie Sanders on Monday. "And the problem is that if they change that, what's going to happen is you're going to have people that won't want to take these jobs because what's happened is they'll always be in depositions or testifying?"

After a state judge ruled Buss had to answer questions, the governor's office appealed, citing cases in which agency heads were given immunity from testifying.

The state argued that it's a settled legal principle that agency heads should not be required to testify when the information sought is available elsewhere. Scott's attorneys called the PBA's "scorched-earth" approach "intrusive," and said it would do "irreparable harm" to state government.

Posted by Marcia Oddi on Tuesday, September 27, 2011
Posted to Indiana Government

Ind. Law - Moped and scooter laws may be passed in 2012

WCSI Radio Columbus reported Sept. 22nd:

Representative Milo Smith testified before the Joint Study Committee on Transportation, Infrastructure and Solutions on Tuesday about the increasing number of scooters on Indiana roadways. Smith says that current laws have not kept up and that people are driving vehicles that could not have been imagined at the time those laws were written.

The Columbus Representative says that Indiana's laws have not kept pace with technological advances and that a "motorized bicycle" from decades ago is not the same as they are being characterized now. He specifically point at some mopeds who are technically classified "under 50 cc's" that run near 60 miles per hour.

Smith is championing a bill that would require financial responsibility and knowledge of the rules of the road for anyone who wants to take these vehicles onto public streets. He says that many people are getting around license suspensions and other legal issues by driving these scooters that are largely unregulated. Smith says currently, 37 states have laws on the books that regulate these types of scooters and who can drive them on public roads.

HB 1334-2011, assigned to the Joint Committee a study of issues related to the use of motorized bicycles and motor scooters.

[More] See also this earlier ILB entry, from Sept. 21st.

Posted by Marcia Oddi on Tuesday, September 27, 2011
Posted to Indiana Law

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

For publication opinions today (0):

NFP civil opinions today (1):

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

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, September 27, 2011
Posted to Ind. App.Ct. Decisions

Stage collapse - "Several new lawsuits in Indiana State Fair stage collapse"

Attorney Kenneth Allen, Valparaiso attorney who filed suit earlier on behalf of the Wanatah lesbian couple (initial ILB entry here, from Aug. 20th), filed suit yesterday on behalf of a Chicago lesbian couple. In the Wanatah case, the couple had entered into a reciprocal beneficiary agreement in Hawaii a decade ago. In the case filed yesterday, the Chicago couple had entered into a civil union in Chicago. (See this ILB entry from June 1, 2011 headed "Illinois has issued its first civil union license, launching a historic day for same-sex couples across the state.")

In addition yesterday Allen filed suit in federal court challenging the Indiana Tort claims act, which limits the State's liability to $5 million per incident.

Here are some of the news reports. Christin Nance Lazerus reports in the Chicago Sun-Times under the headline "Partner of woman killed in Indiana stage collapse files suit ." Some quotes:

Christina Santiago was one of seven people killed when a wind gust collapsed the stage’s rigging and lighting system onto the crowd. Her partner, Alisha Brennon, suffered substantial injuries that have required her use of a wheelchair.

“I’m still here and it doesn’t make any sense to me,” Brennon said.

Attorney Kenneth Allen filed two lawsuits in Marion County Superior Court on Monday seeking to force Indiana to recognize the right of a same-sex partner to recover damages. In June, Brennon and Santiago had a ceremony to recognize their civil union in Chicago. Indiana doesn’t allow or recognize civil unions or same-sex marriage. * * *

Allen previously filed suit in behalf of another lesbian couple. In that case, Beth Urschel, whose partner Tammy VanDam of Wanatah died in the collapse, filed a wrongful death suit on Aug. 19. Urschel and VanDam were wed in Hawaii. [ILB - "wed" is probably the wrong term here.]

“Because Tammy was also survived by her daughter, the court might easily sidestep the equal rights issue by allowing Tammy’s child to recover damages instead of her spouse,” Allen said. “But in Christina’s case, she had no children and the issue of equal protection under the laws must be confronted head-on.”

Allen also filed a class-action complaint in federal court, which challenges the Indiana’s tort claim law.

The suit alleges that Indiana’s tort claims law is not fair to victims who want their claims to be considered in court. The state has a pool of $5 million set aside to compensate victims from an accident, regardless of the number of victims. * * *

“The State’s obligation to its citizens is different from that of a private insurance company,” Zoeller said in a statement. “We will not wait for litigation in order to move forward in providing compensation to victims. That’s why the State has brought in nationally-respected victim compensation expert Kenneth Feinberg to assist us in distributing the available $5 million fairly and equitably to victims. The Attorney General’s Office will defend the State from this lawsuit like the others; but we generally believe it will up to the legislature to decide whether to rewrite the laws concerning liability and beneficiaries, and up to the courts to decide how to interpret those laws.”

From the Chicago Tribune, a story reported by Lolly Bowean, headed "Chicago woman sues in stage-collapse death of same-sex partner." Some quotes:
A Chicago woman who lost her same-sex partner in a tragic stage collapse accident in Indiana has filed a wrongful death lawsuit in the state to seek damages, her attorney announced today.

Although Alisha Brennon and Christina Santiago entered into a legal civil union in Chicago in June, their partnership is not recognized across the state line. That means the Indiana courts will have to determine whether Brennon has a legal right to seek compensation in Santiago’s death, experts said.

The wrongful death lawsuit highlights just how the rights for gay and lesbian couples vary from state to state and how same-sex couples are treated unfairly in the legal system, said Brennon’s attorney Kenneth J. Allen.

“I think the boldest inequality is the discrimination against gay and lesbian couples,” said Allen, who filed the lawsuit for his client in Marion County in Indianapolis. “It’s egregious that in Illinois, and other states, your union is recognized and you are treated with some measure of equality. And you travel across the border and become a nonperson.”

Brennon and Santiago were among the first couples in Illinois to enter into a civil union when the partnerships became legal in June, Allen said. * * *

“These plaintiffs are going to have a hard time in Indiana because Indiana law does not recognize their relationships,” said Andrew M. Koppelman, a law and political science professor at Northwestern University.

(ILB: Koppelman, a professor at the Northwestern University School of Law and the author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines” (Yale University Press, 2006), is quoted in this NYT story on "When Same-Sex Marriages End.")

Jim Shella of WISH TV 8 posted an entry yesterday headed "State Officials Call State Lawsuit Misguided." Some quotes:

Issues surrounding the State Fair tragedy, including the $5 million cap on damages that can be claimed from the state, are now the subject of a federal lawsuit. Merrillville attorney Kenneth Allen is suing to have the cap lifted.

State officials think the lawsuit is guided, not because they think $5 million is all the state should pay, but because they want the courts to stay out of the matter.

The $5 million dollar cap amounts to government interference in free market forces that would have led to greater safety at the State Fair, according to Allen. His lawsuit says the cap on damages is “arbitrary and capricious.”

“Justice,” he says, “requires that the cap be overturned in this case.”

“I’m not aware of any case where the limiits have ever been overturned,” says Attorney General Greg Zoeller who calls it a constitutional question that has been tested before. “But at some point the Indiana General Assembly really should take a look at this case,” says Zoeller, “to see whether there are people who weren’t treated fairly and I think that day will come.”

That’s also the position of state lawmaker Ed DeLaney (D-Indianapolis,) who has promised to file a bill and has already called for hearings in an effort to raise the cap. He says the courts should stay out of it and let the General Assembly handle things. “That’s who should raise the cap,” says Rep. DeLaney, “the state legislature, we’re the ones who put it in place. We’re the ones who own the facilities through the state and are responsible for what happens and responsible for the limitations that happen so, we should do it.”

ILB: I've highlighted a quote from the AG that may require further detail.

Fianlly, a story yesterday by Sandra Chapman of WTHR TV 13 is headed "Union: Fair stagehands were state employees." Some quotes:

INDIANAPOLIS - The union that provided the labor to build the stage that collapsed at the Indiana State Fair last month says those riggers and stagehands were also employees of the state. * * *

In email correspondence, Bill Groth, the attorney for Local 30, told 13 Investigates it simply referred workers with certain training and skills to Andre Lacy, Cindy Hoye and the commission.

"The agreement throughout refers to the workers whom Local 30 refers as 'employees,' but they are employees of the commission, not the union," Groth wrote. "While those workers are performing functions at the State Fairgrounds, they are paid by the State Fair Commission and are doing so at the direction and under the supervision of Mid-America."

Friday, Andre Lacy said outside investigators had interviewed 111 State Fair employees, but stopped short of revealing whether any of those interviewed were stagehands or stage riggers.

"Witt has also interviewed non-governmental employees involved in the August 13 grandstand production," he said.

Now, it appears the State of Indiana will not only have to answer for failing to alert concert goers to a severe thunderstorm warning before the collapse, but based on the Union's position, the commission could have to answer for the union employees it paid to put up the stage rigging.

It also means, despite its efforts, the state, under IOSHA, will have to investigate another state agency.

Posted by Marcia Oddi on Tuesday, September 27, 2011
Posted to Stage Collapse

Ind. Law - "Lawsuits against Evansville and Hammond demand communities comply with state measure"

Updating this ILB entry from Sept. 26th, Carrie Ritchie of the Indianapolis Star today has a very long feature article on Zionsville attorney Guy Relford. Some quotes:

Zionsville attorney Guy Relford has become the unofficial enforcer of a new state law that took away communities' right to enact and enforce their own gun ordinances.

Relford, known colloquially as "the gun lawyer," has checked with dozens of communities to make sure they're complying with the law that went into effect July 1. And he's filing lawsuits against the ones that aren't. * * *

Though Relford is getting support from gun enthusiasts across the state, his tactics are drawing criticism. Hammond Mayor Thomas McDermott wrote the suits off as a money grab.

"Guy is basically trying to get easy money from cities around the state," McDermott said.

The new legislation prevents communities from banning guns in public places, including government buildings that do not house courtrooms. Provisions of the law also allow citizens to sue if communities don't get rid of their local ordinances.

If the communities lose, they could pay damages, as well as court fees and the plaintiffs' attorney fees.

Posted by Marcia Oddi on Tuesday, September 27, 2011
Posted to Indiana Law

Law - "Facebook policies tricky for employers, workers"

From The Globe and Mail/AP, this lengthy Sept. 26th article. It begins:

In the age of instant tweets and impulsive Facebook posts, some companies are still trying to figure out how they can limit what their employees say about work online without running afoul of the law.
The story focuses on complaints brought before the NLRB. This ILB entry from Sept. 2, quoting Ameet Sachdev's Chicago Law, also dealt with NLRB complaints. A sample:
In the past year, the National Labor Relations Board has brought at least four complaints alleging that businesses have violated labor laws that protect employees from retaliation for office chatter. One of its cases is against a BMW auto dealership in the Chicago area.
Yesterday's AP story mentions an Indiana incident where an employee at an Indiana company was fired for complaining about her company's low wages on Senator Lugar's Facebook page. NLRB enforcement said its law did not protect her. Read the story for details.

Posted by Marcia Oddi on Tuesday, September 27, 2011
Posted to General Law Related

Monday, September 26, 2011

Ind. Decisions - "State files new brief in Planned Parenthood appeal"

Attorney General Greg Zoeller has just issued a news release headed "State files new brief in Planned Parenthood appeal." It begins:

INDIANAPOLIS - On Monday the State of Indiana filed its latest legal brief in the lawsuit over the state law restricting Medicaid funding for abortion providers.

Indiana Attorney General Greg Zoeller's office filed the brief in defense of the new state law, House Enrolled Act 1210. The brief asks the U.S. 7th Circuit Court of Appeals in Chicago to lift a preliminary injunction that a federal judge in Indianapolis had ordered June 24, which blocked the new state law from taking effect.

Planned Parenthood of Indiana (PPIN) had sued to prevent implementation of the new statute, HEA 1210. By law, the Attorney General's Office defends from legal challenges the statutes passed by the Legislature.

"The interlocutory appeal process at the federal appellate court is an important and necessary step in defense of the challenged statute. But we maintain that this dispute over indirect Medicaid funding for abortion providers really did not belong in federal court, because it should be decided not as a lawsuit between a private vendor and the State but instead an administrative appeal between the State and federal government over the State's Medicaid plan," Zoeller said.

Separate from the State's interlocutory appeal filed in the 7th Circuit, the State also has filed an administrative appeal of the federal government's decision to not approve its Medicaid plan amendment that had withheld Medicaid funding for abortion providers. The State had sought a rehearing of that decision by the Centers for Medicare and Medicaid Services (CMS). A hearing on the administrative appeal of the Medicaid plan denial is scheduled for the CMS regional office in Chicago on December 15.

Meanwhile, the 7th Circuit has scheduled a hearing on the State's interlocutory appeal of the lower court's preliminary injunction. Oral arguments will be October 20 in the U.S. 7th Circuit Court of Appeals in Chicago.

The State's reply brief filed Monday in the U.S. 7th Circuit Court of Appeals in Chicago is at this link.

For background, start with this ILB entry from Aug. 2, 2011.

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to Ind Fed D.Ct. Decisions

Courts - Excellent background article on legal challenges to the Affordable Care Act [Updated]

Here it is, as the first article in a new series for the revamped SCOTUSblog, titled "SCOTUS for law students: Health-care litigation." The author is Stephen Wermiel. And don't be fooled, it is a good overview for anyone not immersed in the issue.

The article ends with speculation as to when the Supreme Court will hear the issue. As it happens, another story today, this one by LA Times law reporter David G. Savage, looks at that question in depth, under the heading "Obama administration must make risky healthcare decision: White House lawyers could try to speed up or slow down the process of seeking to have the Supreme Court decide on the constitutionality of the president's healthcare law."

[More at 6:30 pm] Lyle Denniston of SCOTUSblog is now reporting in an entry that begins:

The Obama Administration, opting not to try to slow down the pace of a major case on the constitutionality of the new health care law, passed up a chance Monday to get the Eleventh Circuit Court to reconsider its decision nullifying the law’s most crucial provision. That was the word being passed out quietly by the Justice Department on Monday afternoon, sources in Washington said. The decision enhances the possibility that the case could reach the Supreme Court in time for a ruling during the current Term — just months before a presidential and congressional election.
[Updated on 9/28/11] Dahlia Lithwick of Slate has this column dated Sept. 27, headed "Unappealing: The Supreme Court is less interested in ruling on Obama's health care law than you think."

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to Courts in general

Stage collapse - Suit filed in federal court challenging Indiana tort claims limits

WTHR 13 Indy is reporting:

MERRILLVILLE - A federal lawsuit is being filed to force the state to pay full and fair damages to those killed and injured at the State Fair.

Seven people were killed and more than 40 were injured when the stage collapsed before the Sugarland concert August 13. The lawsuit filed Monday seeks to overturn the $5 million damage cap in Indiana to pay for legal claims.

The attorney filing the lawsuit, Kenneth Allen, says the limit has been in place in Indiana for 40 years. He says the cap on damages does not take into account the sheer number or extent of the injuries.

More info coming ...

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to Stage Collapse

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

For publication opinions today (3):

In Angela K. Farno v. Ansure Mortuaries of Indiana, LLC, et al. , a 40-page opinion re an interlocutory appeal, Judge Crone writes:

Angela K. Farno pre-paid for a burial space with perpetual care services as well as funeral services and merchandise at a Greenwood cemetery. She later filed a putative class action lawsuit asserting numerous claims against numerous defendants, including Ansure Mortuaries of Indiana, LLC, and appellees Smith Barney, Craig R. Bush, Forethought Federal Savings Bank, and Forest Lawn Memory Gardens, Inc. (collectively, “Appellees”). The defendants allegedly were involved in the purchase of four Indiana cemeteries and the subsequent looting of their trust funds, which had been established pursuant to Indiana law to ensure both the perpetual care of the burial spaces and the eventual delivery of the “pre-need” funeral services and merchandise. The trial court dismissed the claims regarding the perpetual care trust funds but upheld most of the remaining claims.

Pursuant to Indiana Trial Rule 23, Farno filed a motion requesting the certification of a class of plaintiffs who all share claims based on the alleged looting of the pre-need trust funds. Farno asserted that “a class action is the most fair, efficient, and economical method of resolving the customers' claims to restore the pre-need trust funds and to ensure that customers' pre-paid burial services and merchandise will be provided when they pass away.” Appellant's App. at 885. The trial court denied Farno's motion, concluding that a class action was “not superior to other available methods for the fair and efficient adjudication of the issues in controversy.” Id. at 270. According to the trial court, those “other available methods” included lawsuits that had been filed by the Indiana Securities Commissioner and a court-appointed receiver, as well as a pending sale of the cemeteries.

In this interlocutory appeal, Farno first contends that the trial court erroneously considered and resolved the merits of contested issues in ruling on her motion for class certification. Farno also contends that the trial court erroneously considered the pending sale of the cemeteries and other lawsuits involving different claims and parties in determining whether her class action is “superior to other available methods for the fair and efficient adjudication of the controversy” pursuant to Trial Rule 23. Finding no error in any respect, we affirm the trial court.

In Matthew Goldberg, et al. v. Angela K. Farno, et al., a 17-page opinion re an interlocutory appeal, Judge Crone writes:
Appellants Matthew Goldberg and his closely held company, Indiana Investment Corporation, LLC (“Indiana Investment”) (collectively, “Goldberg”), were named as defendants in a putative class action lawsuit filed by appellee Angela K. Farno against Ansure Mortuaries of Indiana, LLC (“Ansure”), and others regarding the alleged looting of cemetery trust funds. Farno filed a motion for certification of a litigation class of plaintiffs who all share claims based on the alleged looting of cemetery trusts that had been funded with proceeds from their purchases of pre-need burial services and merchandise pursuant to Indiana law. The trial court denied Farno's motion, concluding that a class action was “not superior to other available methods for the fair and efficient adjudication of the issues in controversy,” as would be required for class certification under Indiana Trial Rule 23. Farno requested and received a stay of the proceedings pending an interlocutory appeal from that ruling, which was taken pursuant to Indiana Appellate Rule 14.

Farno then asked the trial court to lift the stay so that she could seek preliminary approval of a class action settlement agreement that she had reached with various defendants, including appellee Forest Lawn Memory Gardens, Inc. (“Forest Lawn”). She also asked the trial court to grant preliminary approval of the settlement agreement and to certify the plaintiff class for settlement purposes, stating that the settling defendants had stipulated for settlement purposes that the “superiority” requirement of Trial Rule 23 was met. Over Goldberg's objection, the trial court entered an order granting preliminary approval of the settlement agreement and certifying the plaintiff class for settlement purposes.

In this interlocutory appeal from that order, Goldberg contends that the trial court did not have jurisdiction to certify the settlement class while the court's prior ruling on the litigation class was being appealed. Goldberg also contends that the trial court's certification of the settlement class was improper, claiming that Farno presented no additional evidence to support certification of an identical plaintiff class for settlement purposes. In response, Farno and Forest Lawn argue that Goldberg has no standing to challenge the settlement because he has not suffered plain legal prejudice. We agree and therefore affirm the trial court.

In Starlett Gilbert v. State of Indiana , an 8-page opinion, Judge Baker writes:
Today we address some basic principles of fundamental due process, namely, a criminal defendant’s right to confront witnesses against her, its interrelationship with hearsay evidence, and the State’s burden to prove its case beyond a reasonable doubt. More particularly, the State argues that the introduction of hearsay testimony through a police officer was harmless error, inasmuch as the appellant-defendant, Starlett Gilbert, could have called the declarant, who was also a police officer and present at trial, to challenge the hearsay statements that were erroneously admitted.

Declining to accept the State’s concession, we conclude that the officer’s testimony was not hearsay, insofar as it was not offered to prove the truth of the matter asserted. Rather, the out-of-court statements were made to prompt Gilbert to speak, and it was her statements that constituted the evidentiary weight of the conversation.

Moreover, although it is the State’s burden to prove its case, Gilbert was not denied her right to confrontation because the Confrontation Clause of the Sixth Amendment to the United States Constitution does not apply to nonhearsay statements even if they are testimonial. Additionally, Gilbert was provided the opportunity to cross-examine one of the two police officers who was present during the entire incident. Consequently, we affirm. * * *

[W]e do not mean for our conclusion to be interpreted as approval for the manner in which the State presented its case. To be sure, the State had the opportunity to procure the testimony of Detective Wilkerson but declined to do so. While we affirm the trial court, we strongly caution the State against such haphazard work in the future.

NFP civil opinions today (1):

Thomas M. Slaats v. Sally E. Slaats (NFP)

NFP criminal opinions today (4):

Joshua J. Hubble v. State of Indiana (NFP)

Michael Reynolds v. State of Indiana (NFP)

Starlett Gilbert v. State of Indiana

Jeremy Cuzzort v. State of Indiana (NFP)

Derrick R. Davis v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Disciplinary opinion on misuse of trust account

In the Matter of James S. Dal Santo, an Order approving a "Statement of Circumstances and Conditional Agreement for Discipline," was posted today; it was filed Sept. 19, 2011. Some quotes:

Respondent admits numerous violations with his trust account from 2005 through 2009, which include writing numerous checks that did not clear due to insufficient funds, allowing the balance to become negative, writing checks to "cash," using trust funds for personal expenses, and failure to keep proper records of his trust account.
Numerous rules are listed as violated. The discipline:
For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning November 1, 2011, with 60 days actively served and the remainder stayed subject to completion of 18 months of probation.
See the Order for the terms and conditions of probation. Finally:
Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). Notwithstanding the expiration of the term of probation set forth above, Respondent's probation shall remain in effect until it is terminated pursuant to Admission and Discipline Rule 23(17.1).

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending September 23, 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 September 23, 2011. It is one page (and 6 cases) long.

One transfer was granted on Sept. 19:

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to Indiana Transfer Lists

Law - SCOTUSblog now sponsored by Bloomberg Law

SCOTUSblog, by far the leading source of timely information on the SCOTUS, announces today that it will be entirely underwritten by Bloomberg Law. This will allow it to employee four full-time bloggers and many new features.

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to General Law Related

Ind. Gov't. - Brief filed appealing Recount Commission decision in SOS Charlie White case

Attached is a copy of the brief filed Sept. 23rd in Marion Circuit Court in the appeal of the Indiana Recount Commission ruling in the SOS election contest . The history is outlined at pp. 3-4:

On June 21, 2011, the Commission conducted a hearing at which evidence was received and testimony taken. At the request of the Commission, the parties submitted proposed findings of facts and conclusions of law on June 24, 2011. On June 28, 2011, the Commission entered its Findings of Fact, Conclusions of Law and Final Order, denying Parker’s contest ("Decision").

On July 28, 2011, pursuant to Ind. Code § 3-12-10-18, Parker filed in this Court a Petition for Judicial Review, seeking review by this Court of the Commission’s June 28, 2011 final decision. On August 19, 2011, White again sought emergency transfer to the Indiana Supreme Court. On September 12, 2011, the Supreme Court entered an order dismissing White’s Emergency Verified Motion to Transfer because it was “procedurally defective.”

On August 26, 2011 this Court entered an Order that Parker’s opening brief and appendix be filed on or before September 23, 2011, with Respondents’ brief to be filed on or before October 24, 2011, and Parker’s reply to be filed on or before October 31, 2011.

Here is Attachment 1, which details the complex chronology.

Here is a long list of earlier ILB entries re "Charlie White."

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to Indiana Government

Courts - Several states debate judicial elections versus appointed bench

A long, very interesting survey story from Reuters.

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to Courts in general

Law - "Keeping track of sex offenders costly: Ohio Sheriff puts the low end of costs at about $179,000 annually"

Denise G. Callahan and Eric Schwartzberg have a very long report in the Middletown Ohio Journal today.

Sentencing Law and Policy has posted extended quotes from the story.

Part 1 of the Journal's series on sex offenders was published Sept. 25th.

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to General Law Related

Law - "Sentencing Shift Gives New Leverage to Prosecutors"

That is the headline to this story by Richard A. Oppel in today's NY Times. A subhead is "Tough sentences help prosecutors push for plea bargains." That may sound familar to those who have followed the arguments against reform of Indiana's sentencing laws.

From the very long NYT story:

GAINESVILLE, Fla. — After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court. * * *

One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.

Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts.

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to General Law Related

Ind. Law - Still more on "Gun-Toting Man at Evansville Zoo Causes Commotion"

Updating this ILB entry from Sept. 19th, Eric Bradner reported Sept. 24th in the Evansville Courier & Press - here are some quotes from the long story:

The state legislator who wrote Indiana's new gun law and carried it through the General Assembly this spring says situations like the one that occurred recently at Evansville's Mesker Park Zoo & Botanic Garden were never what he had in mind.

State Sen. Jim Tomes, the freshman Republican from Wadesville, said, though, he has no regrets about a law he drafted that allows Hoosiers to carry firearms in public locations such as parks, libraries and some municipal buildings.

Still, Tomes said, he was "furious" when a man refused when asked to conceal a handgun holstered at his hip while at the zoo on Sept. 10. Police escorted him out because, they said in an incident report, he "started causing a scene."

"A responsible person doesn't do that," Tomes said. "We have our rights. We hear a lot about that. But we also have obligations and responsibilities, and that requires us to conduct ourselves in a manner that would not generate alarm out in public."

But, he said, he does not want to change the law. * * *

Before being elected to the Indiana House, Democratic Rep. Gail Riecken served as Evansville's parks director. She said she is "not surprised at all" by what happened at the zoo.

"It's one of the first things I thought about — guns around children," she said. * * *

Riecken was the only Southwestern Indiana legislatorto vote against the measure, Senate Enrolled Act 292.

She said as a policymaker, she considers her job one that requires examining just how far each bill she is asked to vote on could be taken.

"The unintended consequence, the worst-case scenario, the long-term effect is not something that some of the folks must be looking at, or we wouldn't be looking at some of the laws we passed this last year. And this is one of them," Riecken said. * * *

"I respect the rights of gun-owners, but at some point you've got to respect the other people that are in the room," Riecken said.

"The rest of us have rights, too. I think we have a right to feel safe and secure in our environment, especially when our children are around, and this law takes that away."

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to Indiana Law

Ind. Gov't. - Logansport denies it owes money to former firefighters

From the Sept. 25th Pharos-Tribune, this story by Lindsey Ziliak that begins:

The city of Logansport denies it owes any money to seven former firefighters who accepted a buyout last year to retire early.

Attorneys for the city filed their response Friday to a lawsuit claiming that retired Logansport firefighters were not fairly compensated for six weeks of unused vacation time.

According to the city’s attorneys, a local ordinance provides proof that the city doesn’t owe the men anything for vacation. * * *

Each of the seven men accepted a $26,000 buyout from the city last year to retire early, but they said they did not think that precluded them from receiving vacation pay.

The lawsuit argues that the city owes the men about $4,500 apiece for six weeks of vacation. By withholding the vacation pay, the city is violating the Indiana Wage Payment Act, the complaint states.

“Under Indiana law, an agreement to give vacation pay to employees made before they perform their services, and based upon length of service and time worked, is not a gratuity, but rather is in form of compensation for services,” the lawsuit states.

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to Indiana Government

Courts - Still more on: "Post-Chandra Levy murder trial 12/1: The secret juror questionnaires"

Updating this Jan. 4, 2011 ILB entry, the Blog of Legal Times posted a Sept. 20th entry that begins:

The District of Columbia Court of Appeals heard arguments Tuesday morning in the Washington Post's bid to have a lower court turn over questionnaires filled out by jurors in the trial against Ingmar Guandique.

A District of Columbia Superior Court jury convicted Guandique in November 2010 of first-degree murder in the highly publicized death of former federal intern Chandra Levy.

Shortly after the trial began, the Post filed a motion asking the court to disclose a detailed questionnaire filled out by the 12 jurors and four alternates before they were chosen, but the trial judge denied the request.

The Post, supported by amicus briefs from other media organizations, claims that the judge made an arbitrary decision to withhold the questionnaires in violation of the First Amendment and common law. Voir dire is a public process, the paper argues, so the same public interest rights should apply to written questionnaires.

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to Courts in general

Law - A solution without a problem?

A challenge to Indiana's voter ID law was rejected by the SCOTUS, but as more states move to adopt similar laws, the controversy about such laws continues. a long, widely syndicated, worth-reading story this weekend by Suzanne Gamboa of the Associated Press is headed "Voter ID laws target rarely occurring cases of fraud." A sample:

“I’ve compared this to the snake oil salesman. You got a cold? I got snake oil. Your foot aches? I got snake oil,” said election law expert Justin Levitt, who wrote “The Truth About Voter Fraud” for The Brennan Center for Justice. “It doesn’t seem to matter what the problem is, (voter) ID is being sold as the solution to a whole bunch of things it can’t possibly solve.” * * *

“It is something that happens in an instant and then it’s gone,” Republican Rep. Todd Rokita, who spent eight years as Indiana’s secretary of state, testified during a recent Senate hearing. “Witnesses dissipate. These are volunteer poll workers. It’s not a domestic violence case. It’s not something that leaves visible scars or bruises. It’s the kind of case that is very hard to prosecute. That doesn’t mean it doesn’t exist.”

See also this ILB entry from Sept. 15th headed "In 2010, Indiana ranked 48th in voter turnout."

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to General Law Related | Indiana Government | 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, September 25th, 2011:

From Saturday, September 24, 2011:

From late Friday, September 23, 2011:

Posted by Marcia Oddi on Monday, September 26, 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 9/26/11):

Wednesday, September 28th

Thursday, September 29th

Next week's oral arguments before the Supreme Court (week of 10/3/11):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 9/26/11):

Next week's oral arguments before the Court of Appeals (week of 10/3/11):

Tuesday, October 4th

Wednesday, October 5th

Thursday, October 6th

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

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


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

Posted by Marcia Oddi on Monday, September 26, 2011
Posted to Upcoming Oral Arguments

Sunday, September 25, 2011

Courts - "Sherman Minton: The Hoosier they named the bridge for"

Over the years, the ILB has had several entries on Sherman Minton - Justice Minton was a Hoosier (New Albany) and a 7th Circuit judge from 1941-49 in addition to serving as a Supreme Court justice from 1949-56. See a list here.

Today John R. Hale, director of liberal studies in the College of Arts and Sciences at the University of Louisville, has a special to the Louisville Courier Journal, including a personal family recollection of the Mintons.

Posted by Marcia Oddi on Sunday, September 25, 2011
Posted to Courts in general

Environment - How clean is clean in Illinois? And Indiana

Talking about dirt here.

"Debating the Cleanliness of Dirt" is the headline of this lengthy story dated Sept. 23rd by Kari Lydersen of the Chicago News Coop. Some quotes:

Questions about the earthiest of matters — whether there is such a thing as clean dirt and, if so, does it exist in Chicago? — are at the heart of a bitter policy fight between two powerful, politically connected industries: landfill and quarry operators.

Next week in Springfield, the Illinois Pollution Control Board will begin what promises to be a highly charged set of hearings about rules proposed by the state Environmental Protection Agency to define whether dirt and debris from construction and demolition sites is clean enough to be deposited in quarries. Such dirt and debris has long been deposited there, and state statutes mandate that the deposits be clean. But “clean” has never been clearly defined.

The debate over the proposed regulations is expected to resonate in suburban communities that get their water from aquifers connected directly to quarries, which have no linings or barriers to prevent toxic materials from leaching into the water supply.

It has pitted quarry operators, who say that the proposed regulations are too strict and costly, against landfill operators, who say the proposed rules are too lenient and will lead to polluted drinking water.

The landfill operators say most dirt in Chicago is contaminated enough that it should be going to landfills, which have waterproof liners and stricter monitoring requirements. * * *

Under the proposed rules, dirt headed for quarries would have to be tested for specific contaminants and could not be dumped if it exceeded limits for what was considered safe. Quarries would also have to monitor nearby groundwater once a year and report any problems to the state within 60 days. * * *

Under the proposed rules, construction and demolition managers would in many cases need to pay professional engineers or geologists to certify that their dirt was clean. Quarry operators would also have to test the dirt with an electronic meter and pay for the annual groundwater monitoring.

The ILB has had a number of entries under the heading "Contaminated soil from Louisville arena site dumped in Clarksville." (For background, start with this one from Oct. 6, 2010.) This Friday, Ben Zion Hershberg of the Louisville Courier-Journal reported in a lengthy story:
Indiana environmental regulators have proposed a settlement in their dispute with the owners of the Marrs clean-fill site in Clarksville over contaminated materials it received from the KFC YUM! Center in downtown Louisville. * * *

The proposal includes a $140,580 penalty, extensive testing and the capping and closure of the site. * * *

IDEM has been investigating allegedly illegal dumping of contaminated soil from the KFC YUM! Center site for more than a year, based on estimates that more than 7,000 truckloads of soil and other fill materials were brought to Clarksville from the downtown Louisville site in 2008 and 2009.

Marrs acknowledged in July 2010 that he had received thousands of truckloads of material from the site, according to IDEM documents and inspectors’ statemenets.

Since then, state and private envrionmental experts have been attempting to determine the location of all the materials at the Marrs site.

Marrs is only allowed to receive clean fill, such as asphalt, unpainted concrete and clean soil, according to state regulations. But the materials from the YUM! Center excavation included low-levels of polynuclear aromatic hydrocarbons, which often are left after diesel fuel has been stored or other fuels burned.

Posted by Marcia Oddi on Sunday, September 25, 2011
Posted to Environment

Ind. Gov't. - Names on the ballot, and the "may" issue

The Lafayette Journal-Courier reported this weekend:

Lafayette Mayor Tony Roswarski filed a lawsuit Friday morning in an attempt to force the county to put unopposed municipal candidates onto the ballot.
The "may" issue: To quote again from Friday's FWJG story:
Republican House Speaker Brian Bosma of Indianapolis echoed Long’s statements.

“I am not a fan of the change,” he said. “We need a historical record of elections. It’ll be on my list of things to remedy next year.” * * *

The provision specifically says an election “may not be held for a municipal office if there is only one nominee for the office.”

Bosma said there has been some confusion over the phrase “may not,” noting some legislators thought that phrase left the decision up to local election officials.

“It’s poorly worded and could lead to a great deal of voter confusion,” he said.

But Rep. Kathy Richardson, R-Noblesville, author of the measure, sent a letter to her fellow legislators clarifying the phrase.

“Some are confused by the may not provision – I just ask you this – if your mother says you may not have a piece of candy what did that mean to you? Well to me it meant no candy.” * * *

Richardson holds a leadership position in the House and is respected as an elections expert in that chamber.

Rep. Richardson's letter is quoted in this Sept, 20th ILB entry, which was headlined "If your mother says you 'may not' have a piece of candy what did that mean to you?"."

Dan Carden of the NWI Times' story today includes:

The chairwoman of the Indiana Senate Elections Committee believes the uproar over a new law allowing election officials to drop uncontested races from the ballot is a lot of fuss over nothing.

State Sen. Sue Landske, R-Cedar Lake, co-sponsored House Enrolled Act 1242, which eliminates a requirement that even candidates without an opponent be listed on the ballot.

"It should reduce the size of the ballot," Landske said, which she believes will save money. Though the nonpartisan Legislative Services Agency projects any savings from shorter optical-scan ballots will be "minimal."

Critics of the change say leaving candidates off the ballot is antidemocratic and likely to confuse voters who will wonder why they could only vote for certain offices.

That has led election officials in Lake County, and in counties across Indiana, to announce they plan to ignore the law and list every candidate in every race, even unopposed candidates.

Landske said that's fine with her since the text of the law says counties "may" omit uncontested races, it does not say they "shall" not include them.

"They can choose to handle that however they want to," Landske said. "There are no repercussions."

Merrillville officials had hoped the new law would enable the town to save several thousand dollars this November by only opening polling places in the three Merrillville council districts where more than one candidate is running.

It costs the town some $34,000 to open polling places town-wide, according to Councilwoman Carol Miano.

But the decision of the Lake County elections board to require uncontested races be listed on the ballot and polling places be open for citizens to select those unopposed candidates means Merrillville taxpayers won't see any of those potential savings.

ILB: Let's tally up those reported positions:

Posted by Marcia Oddi on Sunday, September 25, 2011
Posted to Indiana Government

Ind. Courts - "Problems were discovered when the courthouse exterior was probed by fiber-optic cameras earlier this year"

A story Saturday in the Lafayette Journal-Courier, accompanied by a great, back-to-the-60s, LSD-like photo, reports:

Cracks and other weaknesses on the exterior of the Tippecanoe County Courthouse are being shored up by crews over the next two months.

Posted by Marcia Oddi on Sunday, September 25, 2011
Posted to Indiana Courts

Ind. Law - "Fraternity ordered to cease operations after rape allegation;" more on campus investigations

Only a few days ago, on Sept. 18th, the ILB posted this entry headed "Ind. Law - "Notre Dame changes sex assault investigation procedures" about a significant series of stories on campus assaults in the SB Tribune.

It is not only Notre Dame, of course. The heading to this entry is from a Sept. 19th WTHR 13 story by Steve Jefferson - some quotes:

INDIANAPOLIS - A local university that made the national spotlight for basketball is now the focus of a sexual assault investigation on campus. Butler University Police and students talked with Eyewitness News about allegations and trouble for the fraternity involved.

Phi Kappa Psi fraternity members at Butler are in trouble for what allegedly happened at their unauthorized house party. A female student says a male student sexually assaulted her during the party. * * *

"Notified faculty, staff and students of the incident and it is under investigation currently," said Benjamin Hunter, Butler University Police chief.

The investigation into the alleged sexual assault at Butler is ongoing and police do have a person of interest. That's one reason why police say female students should not be afraid.

"At this point it appears that this is not a serial rapist. It appears that it is student on student," said Chief Hunter.

Notice that there is no mention of Marion County involvement; I recall this became an issue in the South Bend case.

Today the Bloomington Herald-Times has a long story by Abby Tonsing on the high-profile Lauren Spierer investigation. Unlike earlier Spierer stories, the H-T has not made today's report freely available. The headline: "Spierer investigator calls Bloomington police chief ‘Gomer Pyle’: Ex-New York cop hired by missing IU student’s family had sought to partner with local authorities." The most striking quote:

During that recent visit to Bloomington, Dietl [the NYC ex-cop] said he saw rampant drug use and abuse among Indiana University students. “This is a Big Ten school. Kids walk around like ‘Night of the Living Dead.’ I mean, all stoned out. Kids overdosing,” he said.
BTW, that shocked me, and I attended IU in the 60s ...

Re the failure to share information and the "Gomer Pyle" diss, the Bloomington police chief, Mike Diekhoff:

expressed his surprise that, as a retired officer, Dietl “wasn’t aware of the impropriety of a police department sharing investigatory information with a private agency.” Dietl and his investigators have also contacted the FBI and other police agencies assisting with the Spierer case. Those agencies, too, refused to give Dietl case information for the same reasons.

“As he did not get the information he came seeking, I can only surmise that is the reason he described me as ‘Gomer Pyle.’ I don’t agree with that characterization, but to use a time-honored phrase, maybe that is how they do things in New York.”

Dietl is entitled to his opinion, Chief Diekhoff concluded. “And, for what it’s worth ... I’ve been called worse.”

Posted by Marcia Oddi on Sunday, September 25, 2011
Posted to Indiana Law

Friday, September 23, 2011

Stage collapse - A question about the distributions to be made from the State Fair Relief Fund

Watching the news stories this evening about the distribution plan announced today (and covered in this ILB posting), I realized I have a question about the distribution formula. It is going to be pro rated, or is everyone who meets the categories going to receive the amounts listed?

Doing some quick and cold calculations, $35,000 x 7 deaths = $245,000.

Forty people have been reported injured in several stories. If ten of these were admitted and hospitalized for at least 10 days and nights, that is $250,000. Ten more admitted and hospitalized for 4-9 days and nights is $75,000. And say the remaining 20 were were admitted and hospitalized for 1-3 nights and days; that is $60,000.

Adding the category totals together, we get $630,000. The relief fund totals $796,280.50 to date. So it looks like the amounts were established so that pro rating the amounts in the schedule would not be needed.

Indeed, the press release today states:

Because the total number of claimants is not known, the initial distribution contemplates payments totaling about $700,000 to assure the fund is not overspent. Additional distributions of remaining funds and newly donated funds are anticipated. Donations to the relief fund will be accepted until Oct. 31, 2012.
In the 1963 coliseum explosion pro rating was used. And it may be needed in the tort claims actions against the State of Indiana, where there is a $5 million limit for the entire incident.

As discussed in this Sept. 10, 2011 ILB entry based on my research into the handling of the 1963 incident, "a group of eight attorneys [was] named by Judge Dillin to evaluate the losses -- in dollars and cents -- suffered by the victims." Then, according to a Nov. 2, 1965 story in the Indianapolis Star:

The attorneys, John F. Townsend, Paul Rochford, Howard S. Young Jr., Arthur L. Payne, H. Harold Sochnick, Robert Hollowell, James R. Martin and Darrell Bratton, after studying each case individually, ruled the total money necessary for fair reimbursement to each claimant is $7,502,303. * * *

With slightly more than $1,122,000 available, each person, under a formula worked out by the attorneys, will receive 7% of the total fixed in the schedule published at the conclusion of this story.

Judge Dillin said the sums to be paid out will pay off approximately 14 3/4% of the total $7,500,000 figure.

Posted by Marcia Oddi on Friday, September 23, 2011
Posted to Stage Collapse

Courts - "Judges Compete for Law Clerks on a Lawless Terrain"

Reported by Catherine Rampell, a long story in the business section of today's NY Times. A few quotes:

Federal judges are entrusted with interpreting and applying rules fairly and consistently. Except, it seems, when it comes to hiring their own staff.

The judges compete aggressively each year to recruit the best law students to work for them as clerks, prestigious positions that involve research, counsel and ghostwriting. But the process has become a frenzied free-for-all, with the arbiters of justice undermining each other at every turn to snatch up the best talent. * * *

At the Manhattan courthouse, anxious young applicants in stiff new shoes were darting in and out of the building all day, checking and rechecking their phones with the security guard, just so they could listen to their voice mail between interviews.

They had, after all, heard the warning tale of an unlucky student from the year before, who didn’t answer the phone because he was on a flight to another interview. The story ends with two voice mails: the first offering a job, and the second revoking it.

This recent chaos in the hiring system, particularly intense on the East Coast, has been fed by the competition between judges, by the relative scarcity of top law jobs, by more applications from those who have already finished law school and by students pressuring for earlier interviews out of fear that no slots will be available if they are not first. The result is a pressure cooker in which law students have little control over their fates, and even the standard-bearers of American justice are expected to break the rules.

Posted by Marcia Oddi on Friday, September 23, 2011
Posted to Courts in general

Ind. Gov't. - "GOP leaders say fix coming for ballot law"

So reports Niki Kelly today in the Fort Wayne Journal Gazette. Some quotes:

The good news for vexed election officials around the state is it appears a new law eliminating unopposed candidates from municipal election ballots is short-lived.

Republican leaders of the House and Senate agree the legislature erred when passing the measure, and they vowed to repeal it next year.

“I think names ought to be on the ballot whether or not you have an opponent, period. People ought to know who they are electing,” said Senate President Pro Tem David Long, R-Fort Wayne. “The intention (to save money) was good, but voting is a fundamental responsibility. It goes to the heart of our republic.”

Republican House Speaker Brian Bosma of Indianapolis echoed Long’s statements.

“I am not a fan of the change,” he said. “We need a historical record of elections. It’ll be on my list of things to remedy next year.” * * *

The provision specifically says an election “may not be held for a municipal office if there is only one nominee for the office.”

Bosma said there has been some confusion over the phrase “may not,” noting some legislators thought that phrase left the decision up to local election officials.

“It’s poorly worded and could lead to a great deal of voter confusion,” he said.

But Rep. Kathy Richardson, R-Noblesville, author of the measure, sent a letter to her fellow legislators clarifying the phrase.

“Some are confused by the may not provision – I just ask you this – if your mother says you may not have a piece of candy what did that mean to you? Well to me it meant no candy.” * * *

Richardson holds a leadership position in the House and is respected as an elections expert in that chamber.

Rep. Richardson's letter, and links to earlier ILB entries on the ballot isue, are available here.

Posted by Marcia Oddi on Friday, September 23, 2011
Posted to Indiana Government

Ind. Courts - Orders Amending Indiana Rules of Court

A number of rule amendments have been posted today by the Supreme Court, most take effect January 1, 2012.

Posted by Marcia Oddi on Friday, September 23, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More than 400 applicants passed the July 2011 Indiana bar exam.

From the press release:

The two-day written exam was given in July 2011. Of the 536 applicants who sat for the exam, 411 passed, which is a rate of 77 percent. The applicants who passed the written exam also have to undergo a character and fitness review before they can be admitted to the Indiana bar. Each bar applicant meets with a member of the Indiana Supreme Court Character and Fitness Committee for a personal interview. The interviews are conducted by attorneys from across the state. The next bar exam will be given in February 2012.
Congratulations to State Senator Mike Delph, who is on this list.

Posted by Marcia Oddi on Friday, September 23, 2011
Posted to Indiana Courts

Stage collapse - Indiana State Fair Commission approves process for relief fund distribution; but question of "who" may submit death claim not addressed [Updated]

From the news release:

INDIANAPOLIS (Sept. 23, 2011) – The Indiana State Fair Commission today adopted a process for distribution of donations from the State Fair Relief Fund which will enable payments to victims of the Aug. 13 accident at the Indiana State Fairgrounds to begin as early as next week. A claim form will be available on Monday, and distributions will begin as soon as claims information is verified.

With the assistance of nationally recognized victims compensation expert Kenneth Feinberg, the relief fund protocol has been designed similarly to one used by Virginia Tech following tragic shootings at the university in 2007.

“On the advice of Mr. Feinberg, we prioritized relief amounts based on those who were killed and hospitalized. His input helped us reach decisions about process and amounts quickly, and now it’s our goal to start making payments almost immediately,” said Andre Lacy, chairman of the Commission. “People have been very generous with their donations, and we are proceeding with their wishes to get this assistance to victims.”

The relief fund, which totals $796,280.50 to date, will be distributed according to four classifications:

  • $35,000 for death claims:
  • $25,000 for those admitted and hospitalized for at least 10 days and nights
  • $7,500 for those admitted and hospitalized for 4-9 days and nights
  • $3,000 for those admitted and hospitalized for 1-3 nights and days
As the fund administrator, Lacy said Feinberg will meet with accident victims who request a meeting to discuss their claims.

Because the total number of claimants is not known, the initial distribution contemplates payments totaling about $700,000 to assure the fund is not overspent. Additional distributions of remaining funds and newly donated funds are anticipated. Donations to the relief fund will be accepted until Oct. 31, 2012.

The protocol and claim form will be made available online at www.in.gov/sfc on Monday (Sept. 26) and may be obtained from the state fair relief fund claims processor, whose function is to facilitate collection of required documentation. Claim forms should be submitted by Nov. 14; however, payments will begin as soon as forms are submitted and information confirmed.

Payments from the relief fund are a gift from donors and are not considered as compensation for injuries or death resulting from the accident. Acceptance of relief funds does not constitute a waiver or release of any claims victims, or their representatives, may have against an entity that may later be found liable for the accident.

The state fair claims administrator may be reached at: Indiana State Fair Commission, Administrative Building, Attn: Claims Processor, 1202 East 38th Street, Indianapolis, Indiana 46205. Toll free: 1-855-222-0003.

A copy of the relief fund protocol may be found at www.in.gov/sfc. [ILB: No documents available at this state link as of this posting at 11:27 am]

ILB: I don't see any mention of WHO may submit a death claim (with any expectation of success). As has been seen, this is an issue in Indiana with respect to same sex couples.

[More, at 12:19 pm] The ILB has been referred to the now-posted (in MS Word only) documents, specifically the third document, headed "State Fair Relief Fund Protocol Attachments," which begins:

Attachment A – Signature Requirements

The following is a general guideline for the signature requirements for submission of a claim.

1. Deceased claimant. The claim should be signed by the duly appointed personal representative of the Estate of the decedent. A signed and file-marked copy of the probate court order appointing the personal representative should be included with the claim form.

Posted by Marcia Oddi on Friday, September 23, 2011
Posted to Stage Collapse

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In Corrine R. Finnerty, as Successor Personal Representaive of the Estate of Dora Grace Lee, deceased v. Joseph A. Colussi and the Colussi Law Office , a 14-page opinion, Judge Mathias writes:

Corrine R. Finnerty (“Finnerty”), as successor personal representative of the estate of Dora Grace Lee (“the Estate”), appeals from the trial court's entry of summary judgment in favor of attorney Joseph A. Colussi and The Colussi Law Office (collectively, “Colussi”) on the Estate's legal malpractice claim and Colussi's counterclaim for unpaid attorney fees. On appeal, the Estate argues that genuine issues of material fact preclude summary judgment in Colussi's favor. Concluding that such genuine issues of material fact exist and preclude summary judgment in Colussi's favor, we reverse and remand for proceedings consistent with this opinion. * * *

Here, Colussi is seeking recovery not only for his services relating to opening and administering the estate, but also for time he spent investigating Mason's embezzlement and seeking recovery of misappropriated assets. But if the jury concludes that Colussi breached his duty to the Estate by failing to monitor or control the Estate bank account and that this breach was a proximate cause of the Estate's losses, the fees relating to Colussi's investigation of Mason's embezzlement and his efforts to recover the Estate's assets would be attributable to Colussi's own negligence. Put differently, if Colussi committed malpractice by failing to prevent Mason's embezzlement, then the fees relating to Colussi's investigation and recovery of embezzled assets would not have been incurred but for Colussi's negligence. Indeed, Colussi initially estimated that his total fee would be between $3,000 and $4,000, but due to additional hours Colussi dedicated to unraveling Mason's misconduct, the total fee came over $6,000. Appellant's App. p. 64. Under these facts and circumstances, it is for the jury to determine whether the Estate's retention of this portion of the benefit conferred by Colussi would be unjust and therefore support recovery on a theory of quantum meruit. * * *

Conclusion. The trial court erred in granting summary judgment in Colussi's favor on the Estate's claim for legal malpractice and on Colussi's counterclaim for unpaid attorney fees.

NFP civil opinions today (1):

Kirk R. Bristol v. Latasha Bristol (NFP)

NFP criminal opinions today (2):

Harold A. Miller v. State of Indiana (NFP)

Damon A. Collins v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 23, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Texas company shipping product to Ind. not under state's jurisdiction"

Yesterday's COA decision in An-Hung Yao and Yu-Ting Lin v. State of Indiana (ILB summary here), was the subject of a brief story by Dan Carden in the NWI Times. Some quotes:

The Indiana Court of Appeals on Thursday threw out criminal charges against two Texans whose only connection to Indiana was a business that shipped allegedly trademark-infringing toy guns to the state.
An-Hung Yao and Yu-Ting Lin, both of Houston, are affiliated with Generation Guns, a retailer of toy guns imported from Taiwan that resemble real guns but shoot plastic pellets.

Heckler and Koch Inc., manufacturer of the MP5 submachine gun, believed Generation Guns' toys infringed on its MP5 shape and design trademarks and hired Continental Enterprises of Indianapolis to investigate.

Continental purchased several of the allegedly infringing toy guns through the mail and at the company's Texas office.
They shared their findings with Indiana State Police, leading to charges of counterfeiting, theft and corrupt business influence against Yao and Lin.

In a 3-0 decision, the appeals court ordered those charges dismissed because "there is no evidence any conduct that is an element of the alleged offenses occurred in Indiana."

Prosecutors claimed during oral arguments held at Merrillville High School that shipping a product to Indiana gave the state authority to prosecute.

The court disagreed, saying Indiana lacks territorial jurisdiction because the toys were sold in Texas, regardless of where they were shipped.

Posted by Marcia Oddi on Friday, September 23, 2011
Posted to Ind. App.Ct. Decisions

Thursday, September 22, 2011

Ind. Decisions - 7th Circuit: Even more on "Much of (Maksym's) writing is little more than gibberish"

Referencing this ILB entry from yesterday, which quoted 7th Circuit Judge Diane Sykes' opinion in H. Stanard v. Keith Nygren, including this footnote beginning on p. 10 with:

[7] We acknowledge the unfortunate reality that poor writing occurs too often in our profession, but Maksym’s complaint is far outside the bounds of acceptable legal writing. See, for example, this 345-word sentence....
and then spans three pages, ILB reader (and supporter) Gary Price, Lewis & Kappes, remarks:
"It appears that Judge Sykes has not read James Joyce."
[More] "Or Marcel Proust," adds Mike Cavosie, Easter & Cavosie.

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

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

For publication opinions today (1):

In An-Hung Yao and Yu-Ting Lin v. State of Indiana , a 16-page opinion, Chief Judge Robb writes:

An-Hung Yao and Yu-Ting Lin were each charged with three counts of counterfeiting, Class D felonies; three counts of theft, Class D felonies; and one count of corrupt business influence, a Class C felony. They each filed a motion to dismiss all the charges against them. The trial court granted the motions to dismiss as to the counterfeiting charges, but denied the motions as to the remaining charges. Both sides appeal the trial court's order. In their consolidated interlocutory appeal, Yao and Lin raise two issues concerning the trial court's denial of their motions to dismiss as to the theft and corrupt business influence charges: 1) whether the trial court had jurisdiction over them; and 2) whether, as a matter of legal sufficiency, violation of a trademark constitutes theft. In its cross-appeal, the State contends the trial court erred in granting Yao's and Lin's motions to dismiss as to the counterfeiting charges, raising the issue of whether the items alleged to have been counterfeited constitute a written instrument.

Concluding the trial court lacked territorial jurisdiction because there is no evidence any conduct that is an element of the alleged offenses occurred in Indiana, we affirm that part of the trial court's order dismissing the counterfeiting charges and reverse and remand with instructions for the trial court to dismiss the remaining charges.

NFP civil opinions today (2):

In the Matter of Term. of the Parent-Child Rel. of M.G., M.G., E.G. and M.G. v. The Indiana Dept. for Child Svcs. (NFP)

Carol Curran v. Rhonda Curran-Wert (NFP)

NFP criminal opinions today (4):

Heather Zion v. State of Indiana (NFP)

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

Donald R. Bloss v. State of Indiana (NFP)

Quanardel Wells v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 22, 2011
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from August 27, 2011, a Sept. 21st story from K99.3 WKVI FM, headed "Knox City Council Discusses Abolishing City Court," reports the confusing calculations involved:

The Knox City Council recently discussed abolishing Knox City Court. Even though the court takes away almost $100,000 from the City’s General Fund, Mayor Rick Chambers says there’s no opportunity to abolish it until 2014.

“State statute states during 2006 and every fourth year after that, a second or third class town, or city may, by ordinance, establish or abolish a city or town court,” said Chambers. “So, we can’t just snap our fingers and say no more City Court next year. By state statute, every fourth year you have to do an ordinance.”

The Council members had asked City Attorney, David Matsey, to compile figures showing just how much revenue the City was losing on the court each year.

“If we take the City expense for 2010, it was $159,000 that came out of the City General Fund,” said Matsey. “If we subtract the $60,000 that they paid back to the City, we have a gross loss of a little over $98,000.”

The Council has talked before about turning the City Court over to the County, but even then the share of a County-run court would cost the Knox taxpayers 11.5% of the total cost.

City Court Judge Charles Hasnerl has urged City officials to see if the State and County could help close the gap. While the City took in over $60,000, the State took $89,406 and the County took $32,332 from the Court in 2010. If the State and County could help out, the City of Knox could close its loss gap.

A decision on the future of Knox City Court will not be made until 2013 which will be effective in 2014.

Posted by Marcia Oddi on Thursday, September 22, 2011
Posted to Indiana Courts

Ind. Decisions - "Families, Indiana reach settlement in fatal Scott crash"

Harold J. Adams has this story today in the Louisville Courier Journal. Some quotes:

The Indiana Department of Transportation will install new caution lights at the Scott County intersection where three Floyd Central High School alumni were killed under a settlement reached Wednesday with the families of two of the teens.

The agreement halted the third day of a trial in Scott Circuit Court in a lawsuit filed by the families of Cory Emerson and Timothy Brunmeier in connection with the Aug. 11, 2007. It also calls for the families to receive confidential cash settlements, attorneys for both sides said.

Here is an earlier story, from Ann Bowdan, WLKY Louisville, dated Sept. 20th. Some quotes:
SCOTTSBURG, Ind. -- The parents of two teens killed at a controversial Indiana intersection are taking the state to trial.

They said the state ignored a community's pleas to fix a dangerous intersection until a fatal crash killed three teens.

The Brunmeier and Burke families believe their two boys and a German exchange student who was with them would be alive today if the intersection had been changed as requested by the community.

Police said no alcohol, drugs or speed were involved in the crash – the parents blame poor signage and are they're taking the Indiana department of transportation to court.

The prosecution said at the time of the accident in August 2007, the stop sign at the intersection of State Road 356 and US 31 was blocked by another sign, the intersection was dark and not lit, and the signage and warnings of the upcoming intersection were not up to legal transportation standards.

WAVE 3, Lexington, has this story today headed "Parents, state reach settlement in southern Indiana deadly car accident," reported by Heather Smith and Matt McCutcheon. Some quotes:
SCOTTSBURG, IN (WAVE) - The parents of two southern Indiana teenagers who were killed in a car crash nearly four years ago have reached a settlement with the state.

There were still witnesses to be called to the stand Wednesday afternoon, but the trial was suddenly stopped during the lunch hour after a decision - a settlement - had been reached. * * *

Another twist came Wednesday afternoon, when the state approached the victims' families with a settlement offer before the trial event went to the jury for a verdict.

"Nothing will bring back our children, however the families and INDOT (Indiana Department of Transportation) have reached a mutual agreement to benefit the community," said Tess Brunmeier, Tim Brunmeier's mother.

Only WAVE 3 was there, as the families walked in after lunch. Moments later, Scott Circuit Court Judge Roger Duvall would stop the case in its tracks and accept a settlement that includes changes the families had originally asked for at this intersection of Indiana 356 and U.S. 31 in Scott County.

"INDOT has committed to adding signal flashers on US 31 that comply with the best and most applicable engineering practices," Brunmeier said.

The families have been pushing for the changes ever since the 2007 crash that killed friends Emerson and Brunmeier, along with a German exchange student. All along they've blamed the state for confusion at that intersection and not the driver who was actually going under the speed limit. * * *

Before the end of the year, the flashers will go at the intersection - joining the three crosses there that will keep the memories of these victims alive.

"Definitely a sense of closure and something good coming out of something horrible," Burke said.

There was a financial component to the settlement, but those details are not being made available citing the confidential settlement. The family did say a major chunk of any money they would receive would go to a scholarship.

Posted by Marcia Oddi on Thursday, September 22, 2011
Posted to Ind. Trial Ct. Decisions

Wednesday, September 21, 2011

Ind. Gov't. - More on: In Tippecanoe County, "Unopposed to remain off ballots for now"

Updating this ILB entry from yesterday, apparently yesterday's action by the Tippecanoe County Election Board did not dim the furor. Two stories today in the Lafayette Journal-Courier.

The first is a long column by Dave Bangert headed "From 'my bads' to worse on ballot law," that begins:

You don't have to wait until the first days of early voting in Greater Lafayette to get a sense of just how confused voters will be when they find a bunch of blank spots on their municipal ballots.

It's already started.

Tippecanoe County Election Board members had a chance on Tuesday to wipe out that confusion. They just needed to follow the advice and pleas of local politicians and voters who asked them to work around a new state law and list all candidates, opposed or unopposed, on the Nov. 8 ballot.

But they took a pass.

The new law, they said, is the new law. No matter how off the mark it is. No matter how it tosses another bucket of sand on a fizzling fire of reasons for voters to care. No matter how such a fundamental change to our elections passed the General Assembly with barely a mention, let alone a debate. No matter how many legislators said they screwed up and planned to fix the surprising rule next year. No matter how many other counties -- four so far -- have decided the law is too vague to trump an Indiana Constitution that demands "all elections by the people shall be by ballot." No matter how a judge in Wayne County scoffed at the provision and told the election board there: All skate.

The second is a story by Amanda Hamon headlined "Mayor vows ballot lawsuit." It begins:
The fight isn't over yet.

That was the message Lafayette Mayor Tony Roswarski sent Tuesday, after the Tippecanoe County Election Board declined to vote on whether to disregard a controversial state law that removes unopposed municipal candidates from November's ballots.

"I think it's clear from the citizens and it's clear from other elected officials that this provision is unacceptable," said Ros-warski, a two-term Democrat who is unopposed.

"I think it's one of those things that's so egregious that you stand up and you do what you think is right."

In Roswarski's case, that means filing a lawsuit in Tippecanoe Circuit Court. It will seek an injunction that would include on ballots the names of Lafayette and West Lafayette's eight unopposed candidates.

Posted by Marcia Oddi on Wednesday, September 21, 2011
Posted to Indiana Government

Ind. Decisions - 7th Circuit: More on "Much of (Maksym's) writing is little more than gibberish"

Updating yesterday's entry, Prof. Eric Rasmusen from IU's Kelley School sends along this note:

Hi, Marcia.

I saw your post on the 7th circuit chastising a lawyer. You can add this link, to the opinion which does it. It's fun reading--- but only towards the end, where they critique the lawyer's writing in detail.

H. Stanard v. Keith Nygren

And it's not even Posner or Easterbrook!

And today Staci Zaretsky of Above the Law has a long, rambling, and very entertaining entry on the opinion, headed "Benchslap of the Day: A Billy Madison Style Rambling, Incoherent Complaint." A sample:
Apparently the courts in Illinois operate under a “three strikes and you’re out” theory of law, and on appeal to the Seventh Circuit, Judge Diane Sykes was one mean umpire. * * *

Judge Sykes then broke down Maksym’s errors, one by one, in bullet-point fashion. We’ve included a sampling of the best ones here for your enjoyment:

  • Lack of punctuation. At least 23 sentences contained 100 or more words. This includes sentences of 385, 345, and 291 words but does not include sentences set off with multiple subsections.
  • Near incomprehensibility. Much of the writing is little more than gibberish.
  • Grammatical and syntactical errors. The district court put it best: “The grammatical and spelling errors” are “too numerous to add ‘[sic]’ where required.”
Have you ever seen a 345-word sentence before? Neither have I… until now. Judge Sykes included this trainwreck of a sentence in a footnote that spanned three pages, noting that “Maksym’s complaint is far outside the bounds of acceptable legal writing.”

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

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In George W. Giltner, Jr. v. Betty L. Ivers, Martin Zacharias, Jr., and Bradi L. Zacharias, an 11-page opinion, Judge Crone writes:

George W. Giltner owned an undivided twenty-percent interest in a 100-acre parcel of land in Clark County. Betty L. Ivers owned the other eighty percent, and is in the process of selling her interest to her granddaughter Bradi Zacharias and Bradi’s husband, Martin. The Zachariases and Ivers filed a complaint to compel partition of the land.1 The trial court appointed three commissioners, who reported that Giltner should receive 16.5 acres in the southeast corner of the property. Giltner unsuccessfully moved to have the report set aside, and the trial court entered judgment in accordance with the division recommended in the report.

On appeal, Giltner argues that the report should have been set aside because: (1) it made no finding as to whether division would materially damage a party; (2) it did not reveal the property’s value or the methodology used to value the property; (3) the division was not proportionate to the parties’ ownership interests, and no reason was given for the disproportionality; and (4) it was neither signed and sworn nor made in open court. Giltner did not raise the fourth issue until his motion to correct error; therefore, we conclude that he waived that issue. As to the remaining three issues, we conclude that Giltner has not shown that he was prejudiced; therefore, we affirm the judgment of the trial court.

NFP civil opinions today (3):

In the Matter of the Term. of Parent-Child Rel. of T.P.: C.P. v. Indiana Dept. of Child Svcs. (NFP)

Term. of Parent-Child Rel. of J.E.: C.E., v. Indiana Department of Child Svcs. and Child Advocates, Inc. (NFP)

Barbara Noonan, Robert Noonan, and Earnest Cross v. SLF, LLC (NFP)

NFP criminal opinions today (2):

James Gerald v. State of Indiana (NFP)

James Bellamy v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 21, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: "Judge blocks discovery into aspiring lawyers' mental health"

Updating this ILB entry from Jan. 6, 2011, which quoted a National Law Journal story that began:

A federal judge has blocked the Indiana State Board of Law Examiners from digging further into the mental health of class-action plaintiffs who are suing over certain questions on the state's bar admission application.

U.S. District Judge Tanya Pratt affirmed on Dec. 23 a magistrate's order prohibiting the board from conducting further discovery about the plaintiffs, whose 2009 lawsuit alleges that questions on the application related to applicants' mental health violate federal disability law.

Judge Pratt has now issued a 23-page summary judgment ruling in the case of Perdue, et al v. Indiana Bd. of Law Examiners. From the opinion:
Mental illness is pervasive in our society. Studies show that up to 26.2% of the adult population suffers from a diagnosable mental disorder. Many people thrive despite their affliction, and their success has eradicated some of the stigma associated with mental illness. For others, though, mental illness can be personally and professionally crippling. Moreover, mental illness disproportionately affects lawyers.1 Given the extraordinary rigors and responsibilities of being a lawyer, the majority of states – including Indiana – screen bar applicants for potential mental health problems.

To that end, Defendants, the individual members of the Indiana State Board of Law Examiners (“Defendant” or “Board”), require Indiana bar admission applicants to answer a range of stringent questions about their medical history and fitness to practice law. In the Court’s view, the Board would be derelict in its duty if it did not question bar applicants about their fitness to practice law. However, the Board’s questions are some of the most probing and broadly-worded in the nation. Through this entry, the Court must answer: Do any of the Board’s questions go too far?

On this point, Plaintiffs – Amanda Perdue (“Perdue”) and the ACLU Student Chapter of the Indiana University School of Law (“ACLU”) (collectively, “Plaintiffs”) – contend that four of the bar application questions (i.e. Questions 22 through 25) violate the Americans with Disabilities Act (“ADA”).2 The Board disagrees, arguing that these questions are lawful and reasonably necessary “to prevent a direct threat to the public.” (Dkt. 157 at 2). This matter is now before the Court on the parties’ cross motions for summary judgment. The parties have thoroughly briefed the issues and oral argument was held on August 24, 2011. For the reasons set forth, Plaintiffs’ Motion (Dkt. 145) is GRANTED with respect to Question 23 but DENIED with respect to Questions 22, 24, and 25. Conversely, the Board’s Motion (Dkt. 155) is GRANTED with respect to Questions 22, 24, and 25 but DENIED with respect to Question 23. * * *

Questions 22 through 25 are at the heart of this dispute. They read as follows:

22. Have you been diagnosed with or have you been treated for bi-polar disorder, schizophrenia, paranoia, or any other psychotic disorder?
23. From the age of 16 years to the present, have you been diagnosed with or treated for any mental, emotional or nervous disorders?
24. Do you have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner?
25. IF YOUR ANSWER TO QUESTION 24 IS AFFIRMATIVE, are the limitations or impairments caused by your mental health condition or substance abuse problem reduced or ameliorated because your receive ongoing treatment (with or without medication) or because you participate in a monitoring program?

Posted by Marcia Oddi on Wednesday, September 21, 2011
Posted to Ind Fed D.Ct. Decisions

Ind Gov't. - "Lawmakers to consider Indiana's scooter law"

That is the headline to this long WTHR story reported by Sandra Chapman. It begins:

INDIANAPOLIS - Indiana is tackling dangerous loopholes in state laws uncovered earlier this year by 13 Investigates. Now there's action at the Statehouse, and even one of Indiana's top courts is weighing in as the fatalities climb. * * *

Ronnie Jackson traveled some 20 miles on State road 19 on a scooter designed to go 25 to 35 miles per hour. Under current state law, they're only prohibited on the interstate. But his widow says he had his illegally modified to go much faster.

"His went up to 60mph...He had it bored out," said Jackson.

Lawmakers and scooter industry supporters admit there's a problem, but question how far changes should go.

"We must think of the people, the majority of scooter riders on fixed incomes. People whose lives depend on that scooter," said George Hawkins, Scooter Industry representative.

A bill tabled in the spring called for title and insurance for scooters and mopeds under 50cc's to ensure riders take personal and financial responsibility. Right now if you hit one on the road, chances are you're stuck with the bill.

Just ask Evansville Police. That city reports 49-property damage accidents involving scooters. None of the drivers were insured, ten were habitual traffic offenders and eight were suspended. * * *

The Indiana Court of Appeals is also criticizing Indiana lawmakers over its outdated scooter laws. It overturned a speeding ticket issued to a scooter driver because of conflicting standards between motorcycles and scooters.

Nationwide, 37 states already require licensing, title and insurance. Representative Milo Smith says it's time Indiana catches up. New legislation is expected next year.

Lawmakers are exploring titles and insurance to make it easier for police to track small mopeds or scooters. They also hope the insurance requirement will make it harder for suspended drivers to ride while ensuring parents of 15-year-olds who ride will take some financial responsibility. The BMV says the extra fees would generate about $78,000 in state revenue.

The COA opinion referenced is the July 26, 2011 opinion in Michael J. Lock v. State of Indiana. See the ILB summary here, 4th case.

Posted by Marcia Oddi on Wednesday, September 21, 2011
Posted to Ind. App.Ct. Decisions | Indiana Government | Indiana Law

Ind. Gov't. - More on: FSSA to pay Barnes & Thornburg over $8 million thru June 2012

Ken Kusmer's initial AP story, quoted in this ILB entry yesterday, has been expanded. Here is the longer version. A few quotes:

The Family and Social Services Administration will pay as pay as much as $8.05 million through June 30 to the well-connected Indianapolis law firm of Barnes & Thornburg to represent it in the lawsuit with IBM under an amended contract approved Aug. 30 by the attorney general's office. The original contract approved a year ago paid the firm $5.25 million over the same length of time. * * *

FSSA sued IBM to recover more than $400 million it paid before Daniels canceled the 10-year, $1.37 billion contract in 2009 amid complaints about the automated welfare system IBM had installed. The Armonk, N.Y.-based technology giant countersued for about $100 million for costs including computer equipment it claims the state has held onto.

Indiana Senate Minority Leader Vi Simpson, D-Bloomington, noted the contract amendment runs through only the current state fiscal year and that the costs could grow ever further at a time when FSSA is cutting services.

"When we're spending $8 million or $10 million or $15 million or whatever this lawsuit will end up costing us ... it seems to me that this if frivolous," Simpson said.

The contract's original terms called for FSSA to pay Barnes & Thornburg $5.25 million over the course of three state fiscal years ending June 30, 2012, but the amended terms show the agency paying $5.25 million through June 30, 2011, and the additional $2.8 million during the current state fiscal year that began July 1. * * *

"This is a sweetheart deal from the get-go, and it just got sweeter for Barnes & Thornburg," said Julia Vaughn, policy director for the government watchdog group Common Cause/Indiana. "It's disappointing that they've come back to the public trough."

Daniels' press secretary Jane Jankowski, defended the administration's use of the firm.

"They're among the best in the business, and if there had been a conflict, the firm would not have been selected," Jankowski said.

The ILB has located both the original and amended versions of the contract, access them here and here. From the approval letter:
Scope of work: Perform legal services in connection with the IBM Contract with FSSA. Services may include, but are not limited to, contract review, negotiations and litigation.

Hourly rate: John Maley - $465; Brian Burdick - $405; Peter Rusthoven - $475; Patrick Price - $255; Curtis Greene - $265

Total: Not to exceed $8,050,000.00

Term: December 18, 2009 through June 30, 2012

A little math. If all 5 lawyers are working at once, that is $1,865/hour. If all 5 lawyers are working at once, 8 hours/day for 50 weeks a year, that is 2,000 hours x $1,865/hour = $3,730,000 per year ...

Posted by Marcia Oddi on Wednesday, September 21, 2011
Posted to Indiana Government

Tuesday, September 20, 2011

Ind. Decisions - "Indiana Supreme Court rejects claim of right to resist police entry into home"

Here is Dan Carden's report for the NWI Times of today's Supreme Court decision in Barnes v. State. His story concludes:

The court appeared to narrow its earlier ruling in its four-page decision Tuesday, which granted Barnes' petition for rehearing while affirming the original outcome.

David noted police were legally entering Barnes' home at the request of Barnes' wife and therefore Barnes' shoving of a police officer cannot be justified under the Castle Doctrine.

Though, in what might be a poke back at the 71 state lawmakers who filed a petition asking the court to review its original ruling, David wrote that if the General Assembly wants to change state law to allow citizens to batter police officers it is free to do so.

Justice Robert Rucker, a Gary native, was the sole "no" vote on Tuesday's ruling.

In a brief dissent, Rucker said he wanted a more in-depth review of the legal tension between the prohibition on attacking police and a state law that authorizes citizens to use force if it is reasonably believed to be necessary to defend one's home.

Justice Brent Dickson, a Hobart native, dissented from the court's decision in May but concurred in Tuesday's result without comment.

Posted by Marcia Oddi on Tuesday, September 20, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "If your mother says you 'may not' have a piece of candy what did that mean to you?"

Re the "Unopposed to remain off ballots" issue (see most recent ILB entry here), the ILB has received a copy of an email sent by Rep. Kathy Richardson to all House Members and Staff, dated August 22, 2011.

To all:

Hope you are having a good "end of summer" and are getting to enjoy your families.

I have received a couple phone calls on an issue that was in one of my election bills and I just wanted to bring you up to date in case you get questions.

HB 1242 which has many good things in it has seemed to become a major issue to a few unopposed municipal candidates.

What it says is...if you are an unopposed candidate for a city or town office your name may not be on the General Ballot.

First issue some are confused by the may not provision - I just ask you this - if your mother says you may not have a piece of candy what did that mean to you? Well to me it meant no candy.

Second issue is if their name isn't on the ballot they can't be elected because they don't have one vote...wrong it is a myth that you have to have one vote to win. You won because no one ran against you.

Third question has been can an unopposed candidate work at the polls on election day...yes because candidates whose name is on the ballot are prohibited from working. Their name isn't on the ballot so yes they can work.

Fourth question was where did this come from and it came from the Clerk's Association. It is an effort to save money on the printing of ballots. This is just the first of many things we will need to look at on trying to find ways to cut the cost of elections. Election budgets have been cut just like everyone else. This seemed like a way to save money in a place where the outcome is the same whether you are on the ballot or not.

Fifth thing I have heard from the few candidates that are upset...we will just become invisible on the ballot. OK, I'm not sure what this means exactly but they are going to be in office 4 years if not longer and they will have plenty of time to let the people be aware of who they are. Once again whether their name is on the ballot or not they have already won.

Sixth thing I have heard it will hurt voter turnout. OK how many people do you know go to vote just to vote for an opposed candidate?

Seventh is voter confusion and I agree their will probably be questions about why those names are not on the ballot but I would hope a simple comment about the fact that they are unopposed would answer the questions.

If you have other questions or need further information, please let me know. Also I am willing to take a look at making this a MAY provision for county election boards to decide if their is enough interest.

Right now the questions seem to becoming from one or two counties. If I haven't already talked to you and it is an issue in your area please let me know.

Thanks for reading this lengthy email. Let me know if there is anything you need. Take care, K

Posted by Marcia Oddi on Tuesday, September 20, 2011
Posted to Indiana Government

Ind. Decisions - AG Zoeller's reading of today's Supreme Court action in Barnes

Here, from a just issued news release:

“The Indiana Supreme Court’s ruling today means that individuals still have the common law right of reasonable resistance to an unlawful entry, though there is never justification for committing battery against a police officer. In volatile domestic violence situations, police have the right to enter a home to ensure safety of others, but today’s ruling also means the individual has the right to stand against his locked door to protect his home and communicate with police outside without a physical altercation. While the Legislature considers whether to revise the existing statute, we respect the Indiana Supreme Court’s ruling, which underscores that the individual’s constitutional right remains in force,” Zoeller said.

Posted by Marcia Oddi on Tuesday, September 20, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit: "Much of (Maksym's) writing is little more than gibberish"

That is from a story by Steve Schmadeke in the Chicago Tribune headed "Drew Peterson attorney criticized by federal appeals court for his work on another case: Lawyer filed 'unintelligible' papers on behalf of McHenry County landing strip, judges say." More:

A federal appeals court on Monday took one of Drew Peterson's attorneys to task for the way he handled a McHenry County case, finding in a strongly worded opinion that the lawyer repeatedly filed "unintelligible" court papers that were "riddled with errors" and "flagrantly disobeyed" court instructions.

A 7th Circuit Court of Appeals panel said it was forwarding its ruling to Illinois' disciplinary body for attorneys and ordering Peterson attorney Walter Maksym to show why he shouldn't be barred from practicing before the court.

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

Ind. Gov't. - In Tippecanoe County, "Unopposed to remain off ballots for now"

So reports Amanda Hamon in this story in the Lafayette Journal-Courier that begins:

Despite opposition from local political leaders, county officials will enforce a new state law that removes the names of unopposed municipal candidates from ballots.

This morning, Tippecanoe County Election Board member Kent Moore brought a motion to include unopposed candidates on this November's ballots, despite the law enacted July 1 that removes them.

However, neither of the board's other two voting members seconded the motion, so a vote never came to pass.

For background, start with this ILB entry from Sept. 14th headed "Richmond Republicans and Democrats joined forces Thursday seeking to halt a revised state law that would leave unopposed candidates off the ballot this fall".

Posted by Marcia Oddi on Tuesday, September 20, 2011
Posted to Indiana Government

Courts - Still more on: Lobbyist linked to Abramoff quits Indianapolis firm

Updating this ILB entry from April 17, 2007, Mike Scarcella of The Blog of Legal Times is reporting today:

Kevin Ring, a Jack Abramoff aide who was prosecuted in Washington's lobbying scandal, faces a guideline range of 46 to 57 months in prison when he is sentenced next month, far less than the more than 17 years that federal prosecutors recommended.

Posted by Marcia Oddi on Tuesday, September 20, 2011
Posted to Courts in general

Ind. Gov't. - FSSA to pay Barnes & Thornburg over $8 million thru June 2012

Here is Ken Kusmer's initial AP story. Some quotes:

Indiana's costs for a legal battle over a canceled welfare outsourcing contract are growing by millions * * * up from $5.25 million in the original 2010 contract.

The attorney general's office approved the amended contract Aug. 30.

The firm's attorneys on the case include longtime Republican activist Peter Rusthoven and Brian Burdick, the brother of Daniels' deputy chief of staff.

Posted by Marcia Oddi on Tuesday, September 20, 2011
Posted to Indiana Government

Ind. Decisions - More on Barnes: Why I miss Jon Murray ....

The Indianapolis Star editors a few months back replaced long-time courts reporter Jon Murray with Carrie Ritchie, who was just beginning to settle in when yanked yesterday with no specific replacement -- i.e. the slot has been "down-sized."

This morning the Supreme Court finally issued the long-anticipated ruling on the pending motion for rehearing of its decision in Barnes v. State.

The upshot: The Court's ruling today granted rehearing and affirmed its earlier ruling.

Here are two tweets that followed:

shellawish Jim Shella

Blog: Illegal Entry to be Argued a Second Time - The Indiana Supreme Court will grant a rehearing in the controversi... ow.ly/1eKVS0

indyJonMurray Jon Murray

@shellawish You're a bit behind, Jim...they granted rehearing and issued a new decision affirming the old one, all today. So it's done.

[More] Here now is Carrie Ritchie's report on today's ruling - she is back at her old desk for the moment.

Posted by Marcia Oddi on Tuesday, September 20, 2011
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Thomas Temple v. State of Indiana , a 6-page opinion, the issue is the definition of "induce." In affirming the trial court, Judge Bradford writes:

In charging Temple, the State specifically alleged that he “induced” A.H. to commit the delinquent act of leaving her home. App. p. 4. Temple‟s challenge is to the meaning of “induce,” which he argues requires that A.H. have completed the act he allegedly “induced,” namely leaving her home. The State argues in response that “induce” is more akin to “encourage,” an act also listed under section 35-46-1-8(a), and is satisfied when the defendant acts to persuade the minor to commit delinquent conduct, regardless of whether the minor ever actually completes the conduct alleged.
NFP civil opinions today (2):

Richard West v. Elizabeth West (now Smith) (NFP)

Daniel Zunica v. Zuncor, Inc., Steven A. Coppolillo, Jared Tomich, et al. (NFP)

NFP criminal opinions today (4):

State of Indiana v. Jonathon McDonald

David L. McDaniel v. State of Indiana (NFP)

Darnell Kelly, Jr. v. State of Indiana (NFP)

Jon Dalton Gates v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 20, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court holds firm

HAVING GRANTED REHEARING AND RESTATED THE
ESSENTIAL HOLDING IN THIS CASE, WE CONTINUE
TO AFFIRM BARNES'S CONVICTION. ------- DAVID, J.
SHEPARD, C.J., AND SULLIVAN, J., CONCUR.
DICKSON, J., CONCURS IN RESULT.
RUCKER, J., DISSENTS WITH SEPARATE OPINION.

Here is the 5-page opinion by Justice David on the petition for rehearing in the case of Richard L. Barnes v. State.

For some reason, the Court has posted a scanned version; the ILB is preparing an OCRed version.

[Updated at 10:21 am] Here is an OCRed version.

[Updated at 10:37 am]
Here now is the Court's opinion in Barnes, posted its usual format.

Posted by Marcia Oddi on Tuesday, September 20, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Court will hand down decision in Barnes v. State this morning

The decision presumably will be on whether or not to grant the motion for rehearing ...

I'm told it will be at 10:00 am.

Here is a long list of earlier ILB entries on Barnes v. State.

Here are links to all the documents in the case
.

Posted by Marcia Oddi on Tuesday, September 20, 2011
Posted to Ind. Sup.Ct. Decisions

Law - "Military ban on gays ends"

Lyle Denniston has a report at SCOTUSblog, subheaded "The repeal of the military’s 'don’t ask/don’t tell' policy, in effect since 1993, came to an end Tuesday as the Pentagon put into effect a repeal enacted by Congress."

Posted by Marcia Oddi on Tuesday, September 20, 2011
Posted to General Law Related

Law - "Cities ease rules to encourage urban farms"

That headline from a story in USA Today about cities altering their ordinances to accomodate urban farming. A quote:

City Farm is among farms sprouting in cities across the nation to meet demand for locally grown food and to make vacant lots productive and attractive. Cities are changing zoning rules not just to allow more and bigger urban farms but to encourage them. Unlike community gardens where individuals plant on small plots, urban farms are larger operations run by private companies or non-profit groups.

The Chicago City Council gave urban farms a boost when it voted this month to set no size limit for them, allow produce sales in residential areas, and relax parking and fencing regulations for urban farms in business and commercial districts.

Posted by Marcia Oddi on Tuesday, September 20, 2011
Posted to General Law Related

Ind. Courts - "Delaware County jury to decide circumcision case"

From a long story by Doug Walker in the Sept. 18, 2011 Muncie Star-Press:

A Delaware Circuit Court 4 jury next month will be asked to decide whether a local physician should pay damages to a now-7-year-old Muncie boy who was circumcised a day after his November 2003 birth -- allegedly against the wishes of the youngster's parents. * * *

The suit -- filed by the Indianapolis law firm of Wilson Kehoe & Winningham -- says the mother comes from a family "in which circumcision has never been practiced," and whose members believe "genital integrity is a basic human right." It lists several of her male relatives, living and dead, who are or were "intact."

She also alleges her infant was only "partially anesthetized" before the circumcision, making the procedure "excruciatingly painful." * * *

David Llewellyn, an Atlanta attorney who has made a specialty of circumcision-related litigation, is also part of the mother and son's legal team.

The trial is set to begin Oct. 3, and is expected to last a week, Circuit Court 4 Judge John Feick said Friday.

The judge has yet to rule on whether a topic-specific questionnaire proposed by the boy's attorneys will be sent to prospective jurors in the case.

It asks several questions about prospective jurors' views on circumcision, and whether they (if male) have been circumcised, whether they know anyone who is not circumcised, and whether they belong to any pro-circumcision and anti-circumcision organizations.

The ILB has several earlier items on circumcision, one quoting an article headed "Atlanta Lawyer Takes on Botched Circumcision Claims Nationwide."

Posted by Marcia Oddi on Tuesday, September 20, 2011
Posted to Indiana Courts

Monday, September 19, 2011

Ind. Decisions - "Worker wedged into lunch booth proves claim"

The August 4, 2011 NFP COA decision in Betsy Waters v. Indiana State University (NFP) is featured in a Sept. 19th issue of Risk & Insurance. From the analysis:

What it means: In Indiana, in determining whether an injury is compensable, the issue is not whether the injury resulted from an everyday activity (as opposed to an unusual event) but whether the injury was unexpected.

Posted by Marcia Oddi on Monday, September 19, 2011
Posted to Ind. App.Ct. Decisions

Stage Collapse - "Claim process expedited for victims of State Fair incident: Victims seeking settlements asked to file customized claim forms by November 1"

Here is a news release just issued by Attorney General Zoeller. Here are some quotes; read carefully:

INDIANAPOLIS - Families of those who died and victims who were injured in the Indiana State Fair incident on August 13, 2011, are asked to complete a new customized claim form, now available online and through a toll-free number, in order to seek monetary settlements from the State.

By completing the posted claim form, victims can apply for payments from the Indiana Tort Claim Fund under an expedited process established by Attorney General Greg Zoeller. Created by law, the Tort Claim Fund is made up of public dollars and exists so that individuals can receive settlement payments from the State without necessarily having to hire an attorney or go to court. * * *

Victims and their families are asked to file their claims using the customized form no later than November 1 so that requests can be reviewed in an expedited manner. The information the form is seeking will assist the State in distributing settlement payments under a streamlined process to victims of the State Fair incident. This process is for the State's Tort Claim Fund only, not for private charitable donations.

Before the customized form was set up, a total 21 claimants already had filed tort notices with the State of Indiana using the regular process. A tort notice is a standard legal notice that must be filed with the State before an individual can bring any lawsuit against the State. Those earlier claimants are asked to also complete the customized form and provide any requested information they had not included previously.

The Attorney General's Office developed the form - customized for the State Fair incident - with the assistance of Kenneth Feinberg, the nationally-recognized expert who administered victim compensation funds after 9/11, the Virginia Tech shootings and the BP Gulf of Mexico oil spill. Feinberg is donating his consultant services at no cost to the State or taxpayers.

Feinberg and the Attorney General's Office will review the claims and recommend distribution of settlement payments out of the Tort Claim Fund according to a new protocol Feinberg is developing. That protocol, setting forth the classifications of payments that each group of victims will be paid, will be announced soon.

By law the State of Indiana is limited to paying no more than $700,000 per individual or $5 million per incident to settle tort claims. In providing settlement payments on an expedited basis up to the total $5 million limit for the overall incident, the State does not admit liability. Claimants who choose not to accept a settlement offer have the legal right to pursue a lawsuit against the State, but the individual and per-incident limits on liability still apply.

Claimants legally have 270 days to file a tort claim notice with the State, however the Attorney General's Office is informally requesting claimants file the customized forms by November 1 in order to expedite financial assistance to victims and families of victims who choose to participate. Valid claims can be filed after November 1, but funding will likely be exhausted and not available to settle those claims after that date.

And from the end of the release:
Separately, the Indiana State Fair Commission is developing a framework for distributing private charitable donations made to the Indiana State Fair Relief Fund to assist victims. Feinberg also is advising the State Fair Commission on protocols for eligibility and payment amounts from the relief fund. Since payments from that private fund will be charitable gifts, they will utilize a separate process that will be announced at a later date. The website and phone number listed above are for State tort claim compensation only, not for payments from the relief fund.
This would be the money transferred to the state treasury by the governor several weeks ago.

Posted by Marcia Oddi on Monday, September 19, 2011
Posted to Stage Collapse

Ind. Decisions - Transfer list for week ending September 16, 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 September 16, 2011. It is two pages (and 25 cases) long.

Two transfers were granted on Sept. 16:

Posted by Marcia Oddi on Monday, September 19, 2011
Posted to Indiana Transfer Lists

Ind. Law - More on "Gun-Toting Man at Evansville Zoo Causes Commotion"

Updating this ILB entry from earlier this afternoon, two items.

First, Indiana attorney Jordan Stover sent this info, clarifying my statement re a "concealed" carry permit at the end of the earlier entry:

Truth be told, Indiana doesn't issue "concealed carry permits," they issue "Licenses to Carry a Handgun," and the statutes never mention the word "concealed."

This creates a lot of confusion when people, lawyers included, see a story where a person was opening carrying a firearm, but has a "concealed carry permit." The natural assumption is that a concealed carry permit only permits concealed carry, and therefore the person openly carrying is somehow doing something wrong. So I just wanted to point out that our elected officials have not made such a distinction, and that they have explicitly allowed for both the open and concealed carry of weapons by people who have a license to carry a handgun.

The cite is IC 35-47-2-3, which uses the term "License to Carry a Handgun." The word concealed is not used in all of Chapter 2 regarding the Regulation of Handguns.

Second, the Evansville Courier & Press earlier this afternoon posted a second story, this one by Mark Wilson, headed "Armed man escorted from zoo by police sues city of Evansville." The story begins:
EVANSVILLE — A Zionsville, Ind., attorney has filed a lawsuit against the city on behalf of a man Evansville Police Department officers escorted out of Mesker Park Zoo & Botanic Garden after police said he refused to cover up a visible handgun.

The lawsuit, filed in Vanderburgh Circuit Court on Friday by attorney Guy Relford, names Evansville and its Department of Parks & Recreation. It alleges that the actions of zoo employees and police officers violated an Indiana law effective July 1 that preempts the regulation, with a few exceptions, of firearms by local governments.

It seeks financial damages, a court declaration finding the cities actions were an and an injunction preventing future actions by the city.

This is only the second lawsuit filed against local governments since the state law was enacted, Relford said. In August, he filed a similar lawsuit against Hammond, Ind.

The story includes a copy of the 9-page complaint.

[More] Here is a Sept. 4 ILB entry on the Hammond suit.

Posted by Marcia Oddi on Monday, September 19, 2011
Posted to Indiana Law

Courts - More on "Reliability Of Eyewitness Testimony Under Scrutiny"

Updating this ILB entry from Sept. 1, 2011, John Schwartz reports today the NY Times in a story headed "Changes to Police Lineup Procedures Cut Eyewitness Mistakes, Study Says." Here is the study.

Posted by Marcia Oddi on Monday, September 19, 2011
Posted to Courts in general

Ind. Courts - Even more reason to support the ILB?

Apparently the Indianapolis Star is cutting back on its coverage. Current (until today) courts reporter Carrie Ritchie tweeted this morning:

Courts beat at @indystar isn't going away completely. It's being lumped in w/cops, so John Tuohy will cover it.

Posted by Marcia Oddi on Monday, September 19, 2011
Posted to Indiana Courts

Ind. Courts - "Small claims court could move from City-County Building"

Scott Olson has a long report here, in the IBJ. It begins:

The Center Township trustee is pushing to move the township's small claims court from the downtown Indianapolis City-County Building to the Julia M. Carson Government Center in what is being promoted as a cost-saving measure.

Trustee Eugene Akers’ plan, which could be approved at a Wednesday township board meeting, is not without controversy, however. The court’s judge, Michelle Smith Scott, is adamantly opposed to the move.

Posted by Marcia Oddi on Monday, September 19, 2011
Posted to Indiana Courts

Ind. Law - "Gun-toting man at Evansville Zoo causes commotion"

Interesting story today in the Evansville Courier & Press, reported by Richard Gootee. Some quotes:

A man who caused a commotion recently when he refused to conceal his handgun while at Mesker Park Zoo & Botanic Garden was within his rights to do so, but law enforcement and a gun-rights expert questioned why he chose not to conceal the weapon when asked.

According to an Evansville Police Department incident report, two officers responded to a call from Zoo officials on Sept. 10 after several patrons complained about a man at the facility who had a handgun holstered visibly on his hip. When one of the officers asked the man to conceal the weapon, the man refused and "started causing a scene," according to the report. At that point, according to the report, officers asked the man to leave the zoo because he was frightening other patrons. He initially refused to leave and police had to escort him out.

In Indiana, a licensed handgun does not have to be concealed, but Bryan Lee Ciyou, an Indianapolis attorney and the author of the "Indiana Firearms Law Reference Manual," said licensed gun owners should use prudence when deciding whether to conceal their weapons.

He said the police were also correct to request the man hide the gun from public view.

"I think the person is within their rights to say, 'I'm not going to do it,' but why you would want to pick that fight if you're a gun owner or other person that lawfully has it is one that I wouldn't pick," he said. "There is a lot of ambiguity between right and wrong and the law and common sense, and that's a common sense question."

Although the story does not say, presumably the man had a concealed carry permit ...

Posted by Marcia Oddi on Monday, September 19, 2011
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 8 today (and 10 NFP)

For publication opinions today (8):

In John Haegert v. Margaret McMullan , a 20-page opinion, Judge Kirsch concludes:

From the materials designated to the trial court, the inference to be drawn from the facts and circumstances is that McMullan’s actions that were at issue were justified. McMullan maintained a personal file on every English Department faculty member to assist her in evaluating their performance. Informal student complaints that were contained in the file were not used in Haegert’s evaluation per University policy. McMullan turned over the anecdotal file to Graban and Magan in connection with the investigation of her harassment complaint against Haegert. McMullan consistently stated that she wanted to stop Haegert’s pattern of harassing students and faculty of the University. We find that the trial court correctly granted summary judgment in favor of McMullan as to this claim.

Haegert also alleged that McMullan had engaged in intentional infliction of emotional distress. Again, the trial court granted summary judgment in McMullan’s favor. * * *

There is no properly designated evidence in the record to establish that McMullan intended to cause Haegert emotional distress. McMullan acted according to the scope of her responsibilities at the University, and filed a harassment complaint when she believed the University’s zero-tolerance policy had been violated. The trial court did not err by granting summary judgment in favor of McMullan on Haegert’s claim of intentional infliction of emotional distress.

John Haegert v. University of Evansville , a 23-page, 2-1 opinion in a related case, Judge Kirsh writes:
The Vanderburgh Superior Court granted summary judgment in favor of the University of Evansville (“the University”) in an action filed by John Haegert (“Haegert”), alleging that the University’s decision to terminate him for violation of its sexual harassment policy was a breach of his tenure contract. Haegert appeals from the trial court’s order, arguing that the trial court erroneously entered summary judgment in favor of the University and erroneously denied his motion for summary judgment. * * *

Because the University did not meet its burden of proving that Haegert had committed sexual harassment in the form of hostile work environment, we find that the trial court erred by granting summary judgment in favor of the University and dismissing with prejudice Haegert’s complaint against the University. We therefore reverse the trial court’s entry of summary judgment in favor of the University, and remand this matter to the trial court for further proceedings consistent with this opinion. Reversed and remanded.

MATHIAS, J., concurs.
VAIDIK, J., dissents with separate opinion. [that begins, at p. 19 of 23] I respectfully dissent from the majority’s decision to (1) reverse the trial court’s entry of summary judgment in favor of the University of Evansville on grounds that it did not establish by clear and convincing evidence that John Haegert committed sexual harassment in the form of hostile work environment and (2) remand the matter to the trial court for further proceedings. Simply put, I believe that this case is governed by the terms and conditions of Haegert’s employment contract with the University. That is, it is undisputed that Haegert’s employment contract incorporated a zero-tolerance harassment and sexual harassment policy and that Haegert was aware that a violation of his employment contract was cause for termination. According to Haegert’s employment contract, the University bore the burden of proving a violation by clear and convincing evidence. Contrary to my colleagues, however, I believe that the University has proved by clear and convincing evidence that Haegert’s August 25, 2004, incident with Margaret McMullan in the English Department lounge violated this policy. And because I believe that Haegert has received all the due process to which he was entitled, I would affirm the trial court’s entry of summary judgment in favor of the University.

In John M. Brewer and Susan B. Brewer v. Indiana Alcohol and Tobacco Commission, a 14-page opinion, Judge Crone writes:
John M. Brewer (“Brewer”) and his wife, Susan B. Brewer,1 appeal a negative jury verdict in their action against the Indiana Alcohol and Tobacco Commission (“ATC”) for false arrest and excessive force allegedly used against Brewer during a routine inspection of their bar, The Wooden Nickel. The state excise officers who conducted the inspection claimed that Brewer was confrontational and profane and that he disrupted them in their duties. They arrested him for disorderly conduct and hindering law enforcement. Brewer later asserted that he was injured during the handcuffing and arrest process and also suffered emotional and economic damage as a result of the arrest.

When a jury found against him, Brewer filed this appeal, claiming that the trial court erred in admitting and excluding certain evidence; denying his motion for judgment on the evidence on the issues of probable cause and contributory negligence; and instructing the jury on contributory negligence. Finding no reversible error, we affirm.

In Judy Fratter, et al. v. Stanley Rice, Larry Ratts, M.D. , a 16-page opinion, Judge Baker writes:
When the plaintiff went to the defendant-physician's office complaining of pressure and tenderness in his stomach, the physician's assistant performed an examination, administered an EKG, and interpreted those results to be nonspecific. The physician's assistant did not send the results to the doctor for an interpretation of the tests, a review of the charts, or for consideration as to whether the plaintiff should be referred to the hospital. Several hours after the plaintiff returned home, he died of a heart attack. An autopsy revealed the presence of gastritis and evidence of a heart attack. In the end, the jury determined that neither the physician nor his assistant were responsible for the plaintiff's death. Although the plaintiff suggests otherwise, we hold, among other things, that the trial court properly read the relatively new Indiana Model Civil Jury Instruction that defines “responsible cause” to the jury, rather than the Indiana Pattern Jury Instruction regarding proximate cause.

Appellant-plaintiff Judy Fratter, individually and as surviving spouse and personal representative of the estate of Joseph J. Fratter (Joseph), deceased, appeals a jury verdict entered in favor of appellees-defendants Stanley Rice and Larry D. Ratts, M.D. Specifically, Fratter argues that she is entitled to a new trial because the removal of one of the jurors on the second day of trial was error, that the trial court erred in giving a final instruction on “responsible cause,” that it was error to permit Rice to display a “scales of justice” demonstrative exhibit to the jury during closing argument, and that the motion to correct error was erroneously denied on the basis of newly discovered evidence. Finding that Fratter was not entitled to a new trial, we affirm the judgment of the trial court.

In A.J. v. Logansport State Hospital, a 36-page opinion (including a separate concurring opinion beginning on p. 32), Judge Crone writes:
After A.J. was charged with two counts of class A felony child molestation, he was found incompetent to stand trial and was committed to Logansport State Hospital (“Logansport”) for competency restoration services. After six months, A.J. had not attained competency, and Logansport initiated regular commitment proceedings as required by statute. Following a hearing, the trial court found A.J. mentally ill and dangerous and granted the commitment petition.

A.J. appeals, presenting several arguments: (1) that Logansport failed to comply with the statutory rule requiring that the commitment proceedings contain a report from a community mental health center; (2) that the trial court erred in admitting State's Exhibit 1, a psychological testing report completed by a Logansport employee for the purpose of assessing A.J.'s risk of sexual recidivism; (3) that there was insufficient evidence that he was dangerous; and (4) that he was denied due process because the trial court took into account that competency restoration services are offered only in state institutions and because he cannot be restored to competency. We conclude as follows: (1) that Logansport may be considered a community mental health center for the purpose of satisfying the statutory report requirement; (2) that State's Exhibit 1 was admissible as it constituted both a statement made for purposes of medical diagnosis and a report made in the course of a regularly conducted business activity; (3) that there was sufficient evidence that A.J. is dangerous; and (4) that the trial court's consideration of competency restoration services and the probability that he will attain competency did not violate his due process rights. Accordingly, we affirm.

In Michael R. Flanders v. State of Indiana , a 37-page opinion involving a pro se appellant, the second part Judge Crone's of case summary provides:
After Flanders was convicted of sexual misconduct with a minor, amendments to the sex offender registry statutes reclassified him as a sexually violent predator ("SVP"). In his petition for post-conviction relief, Flanders also challenged his designation as an SVP on four grounds: (1) classification as an SVP can happen only at sentencing; (2) the Department of Correction violated the separation of powers provisions of the Indiana Constitution by reclassifying him as an SVP; (3) reclassification without prior notice and a hearing violated his right to due process under both the federal and state constitutions; and (4) the amended version of the sex offender registry statutes violates the Indiana Constitution’s prohibition of ex post facto laws.

The State does not address these arguments, but asserts that the post-conviction court’s denial of these claims was correct because Flanders did not comply with Indiana Code Section 11-8-8-22 (titled "Petition to remove designation or register under less restrictive conditions"). On the contrary, Flanders complied with the version of Indiana Code Section 11-8-8-22 that was in effect at the time that he filed his petition for post-conviction relief, and we see no reason why a petition filed pursuant to that section may not be addressed in the same proceeding as a petition for post-conviction relief.

On the merits of Flanders’s arguments concerning his SVP status, we conclude that our supreme court has already rejected Flanders’s first three arguments. However, we conclude that a 2007 amendment that eliminated his eligibility to petition the court for termination of his SVP status is an ex post facto law that is unconstitutional as applied to Flanders. We also conclude that this violation can be remedied by reinstating his eligibility to petition for a change in status after his initial ten-year requirement to register has passed. Therefore, we affirm the post-conviction court in part and reverse in part.

In Bruce Stansberry v. State of Indiana, a 10-page opinion, Judge Bailey concludes:
It is a cornerstone of our judicial system that a defendant is innocent until proven guilty and the State bears the burden of proving every element of the offense. Fields v. State, 676 N.E.2d 27, 29-30 (Ind. Ct. App. 1997), trans. denied. Stansberry’s conviction lacked a finding of proof on one element, that of resistance, obstruction, or interference, and thus it must be reversed. Moreover, because the trial court’s decision to revoke Stansberry’s probation and his placement in Marion County Community Corrections was predicated upon his conviction for “Attempted Resisting Law Enforcement” these rulings must be reversed as well. We remand the matter to the trial court to determine Stansberry’s eligibility for credit time and credit for time served in the DOC before placing him back on probation and in Marion County Community Corrections. Reversed and remanded with instructions.
In Vaughn Reeves, Sr. v. State of Indiana

NFP civil opinions today (5):

DMS Real Estate, LLC v. Board of Zoning Appeals of the City of Terre Haute, Indiana (NFP)

Dwayne E. Gray v. Safeguard Real Estate Properties, et al. (NFP)

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

Vernon D. Scott v. David Merchant (NFP)

Kyle J. Bonebright v. Lori A. Bonebright (NFP)

NFP criminal opinions today (5):

Macklin Brown v. State of Indiana (NFP)

Marcus D. Brown v. State of Indiana (NFP)

Hunter O. Learning v. State of Indiana (NFP)

Evan J. Erickson v. State of Indiana (NFP)

Jeffrey Dean Washington v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 19, 2011
Posted to Ind. App.Ct. Decisions

Not law - Sportswriters (and more), be afraid, be very very afraid

You soon may go the way of travel agents. And real estate agents. And ...

Aaron Saenz reports in Singularity Hub in a very long story that begins:

I have met my replacement and it is a robot. A robot obsessed with sports. AI journalism pioneer StatSheet gained a name for itself by transforming raw sports data into compelling narratives that people would want to read. To date their automated writing programs have created 100,000+ articles, 350+ free mobile apps, and 1 million unique pages using 2 billion+ pieces of statistical data. Now they are about to do much, much more. Raising $4 million in venture capital, StatSheet is changing its name to Automated Insights and expanding its visions beyond sports. Why restrict your AI writer to one field? Automated Insights will bring their data driven narratives to healthcare, finance, real estate, and many other applications. If something is too expensive, too repetitive, or too boring for a human to write, chances are that Automated Insights can have their AI do it instead. My fellow biology-based writers, our newest member is going to take the jobs we don’t want…and then maybe the rest of the jobs, too.
Fascinating article. Here is more (no wonder PR firms are closing their doors):
Do you have piles of data about real estate prices? Automated Insights could transform that into compelling articles for business or public consumption. Mounds of actuarial data? Why hire dozens of human workers to sort through it when an AI can do the same quicker and more consistently. Here’s a list of potential fields that Automated Insights is looking to pursue: life sciences, healthcare, business intelligence, sales productivity, monitoring solutions, sports, finance, weather, real estate, and local interest. Each is an application space with mountains of data and many small markets which would be interested in transforming stats into narratives that are targeted to their niche concerns. We’re talking about millions of potential websites, mobile apps, etc – each specifically but automatically constructed so that a human can read a few short articles instead of pouring through tons of raw data. Automated Insights is poised to take the most boring writing known to humanity and foist it off onto a computer.

Posted by Marcia Oddi on Monday, September 19, 2011
Posted to General News

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, September 18th, 2011:

From Saturday, September 17, 2011:

Posted by Marcia Oddi on Monday, September 19, 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 9/19/11):

Monday, September 19th

Next week's oral arguments before the Supreme Court (week of 9/26/11):

Wednesday, September 28th

Thursday, September 29th

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 9/18/11):

Next week's oral arguments before the Court of Appeals (week of 9/26/11):

Wednesday, September 28th

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, September 19, 2011
Posted to Upcoming Oral Arguments

Sunday, September 18, 2011

Stage Collapse: "Stages not on state's radar: Officials don't think they have authority to inspect structures"

Another great story today in the Indianapolis Star by the investigative team of Tim Evans and Heather Gillers. (Here was the first.) A few quotes from the lengthy investigative report:

Ohio would require a permit and inspection. So would Kentucky. Ditto for Michigan, Wisconsin, Texas and Florida, among others.

Even the city of Indianapolis requires permits and inspections for temporary outdoor stages such as the one that collapsed last month at the State Fair, killing seven and injuring more than 40 others.

But one entity that has no such requirements is the only one that really mattered -- the state of Indiana.

Indiana building regulators don't review design plans or inspect the hulking metal frameworks that span stages.

An Indianapolis Star investigation into why that is so revealed that state building inspectors do not think they have the authority under current state law to inspect and permit such stage-top structures. It's a position some experts dispute -- saying the state's interpretation of its codes defies common sense.

But if, as one state building official acknowledged, the current laws "aren't perfect," there appears to be no urgency to change the situation.

In neighboring Illinois, the state fire marshal immediately began inspecting stage structures in the wake of Indiana's tragedy. But building officials here say they are not actively pushing anyone to change the law. And the governor's office is waiting for an investigation to be finished before offering solutions.

So, while investigators take months to determine the causes of the Aug. 13 State Fair stage collapse -- and lawsuits continue to mount -- companies will be allowed to erect similar stage structures on state property without inspections. * * *

Why doesn't Indiana inspect temporary stage-top structures? It pretty much comes down to this: The state doesn't consider the metal framework towering over the stage platform -- one holding more than 20 tons of sound, video and lighting equipment -- to meet its code's definition of a structure.

Not even when that framework is hanging over the heads of musicians and within toppling distance of thousands of fans.

Mara Snyder, director of legal and code services for the state Fire Prevention and Building Safety Commission, explained that the structure spanning the stage did not qualify for inspection because it was a "scaffold" and was not "occupied or intended to be occupied."

"The presumption is," Snyder said, "that it's not someone in the equipment or in the scaffolding that makes it work; the equipment is placed in it and it's operated by some mechanism, electrically or whatever, not requiring somebody to be in there to do it."

But occupancy is not the only factor that defines a structure in the state code. The definition also includes something used by "one or more persons who act as the employees of another." And the rigging was crawling with stagehands -- some hanging equipment and others stationed above the stage to operate spotlights during the show, including one who was killed in the collapse.

Snyder said officials were not aware that people worked in the rigging -- and still have no firsthand knowledge that was common practice -- because they did not review the plans. Instead, she said, they rely on the engineer or architect who designed the structure to let them know if a structure meets the threshold for a permit and inspection.

Posted by Marcia Oddi on Sunday, September 18, 2011
Posted to Stage Collapse

Ind. Law - "Notre Dame changes sex assault investigation procedures" [Updated]

The 2010 Elizabeth Seeberg tragedy is the subject of a three-part series this weekend in the South Bend Tribune. (Here is the list of ILB entries from that period.) Here is a list of the stories and some quotes:

The SB Tribune also published some related stories this weekend:

Posted by Marcia Oddi on Sunday, September 18, 2011
Posted to Indiana Law

Ind. Gov't. - More on "In 2010, Indiana ranked 48th in voter turnout"

Following up on this ILB entry from Sept. 15th, here is an 11:30 minute story from the Sept. 17th NPR show, All Things Considered, titled "Do New Voting Laws Suppress Fraud? Or Democrats?"

Posted by Marcia Oddi on Sunday, September 18, 2011
Posted to Indiana Government

Courts - "GPS used to track fired NY state worker raises privacy issue"

The Sept. 16th story in the Albany NY Times-Union is subheaded "Fired state training manager contends use of tracking device violated his rights." The story began:

ALBANY -- How far can state government go in keeping tabs on its employees?

That's the question a mid-level appeals court will consider in the wake of a lawsuit filed by the New York Civil Liberties Union against the state Labor Department, in the case of a fired state worker who was tracked with a GPS device that investigators secretly attached to his personal car.

"GPS technology involves an unprecedented degree of government intrusion," said Corey Stoughton, the NYCLU lawyer representing Michael Cunningham, a former state Department of Labor training manager.

Cunningham's battle with the agency, first reported in the Times Union in 2010, began years ago with his contention that he was punished for blowing the whistle on pressure placed on employees to attend a prayer breakfast sponsored by then-Gov. George Pataki.

Posted by Marcia Oddi on Sunday, September 18, 2011
Posted to Courts in general

Stage Collapse - "Stage collapse shines light on Indiana stance on gays"

That is the headline of this long story this weekend by Charles Wilson of the AP. Check it out here in the Gary Post Tribune. SIt begins:

INDIANAPOLIS — Legal claims filed by the partners of two lesbian women killed in a stage collapse at the Indiana State Fair last month could lead Indiana to examine how it defines survivors in wrongful death cases despite the state’s unwillingness to recognize same-sex unions.

Christina Santiago, 29, of Chicago and Tammy VanDam, 42, of Wanatah in LaPorte County were among seven people who died after a strong gust of wind toppled the stage rigging before an Aug. 13 concert by country band Sugarland. Santiago’s partner, Alisha Brennon, and VanDam’s partner, Beth Urschel, were injured.

A wrongful death lawsuit has been filed on behalf of Urschel, and a wrongful death tort claim — a precursor to a possible suit — has been filed with the state of Indiana on behalf of Brennon.

Indiana’s wrongful death statute allows next of kin to collect damages. But those are technically people related by DNA, adoption or marriage, said Jennifer A. Drobac, a professor at the Indiana University School of Law in Indianapolis.

VanDam and Urschel had registered several years ago in Hawaii as reciprocal beneficiaries, a status that confers some of the legal benefits of marriage — including survivor benefits — to unmarried couples. Friends and colleagues said Brennon and Santiago had gone through a civil union in Illinois and planned to marry.

Indiana doesn’t recognize those acts. But the courts could choose to define next of kin more broadly to include people who live together, share bank accounts, have children together or are otherwise committed to sharing their lives, Drobac said.

All of the ILB entries re the stage collapse at the Indiana State Fair may be found via the category "stage collapse."

Posted by Marcia Oddi on Sunday, September 18, 2011
Posted to Stage Collapse

Ind. Courts - " Judge predicts issues with leaner Cass County budget"

In the Logansport Pharos Tribune yesterday, this story by Kelly Hawes - some quotes:

Cass Superior Court II Judge Rick Maughmer told the county council Friday that the 2012 budget it was about to approve was likely to produce a train wreck.

“There are consequences for what we’re about to do,” he said.

The council took final action on a $9.5 million budget, which will be about $1.4 million leaner than this year’s version.

At a meeting last month, the council approved cuts of about $550,000 from the county’s insurance plan and about $600,000 from the county payroll.

With his office down one person and the county clerk’s office down two, Maughmer said, the paperwork is backing up.

“The work just isn’t getting done because there aren’t enough bodies to do it,” he said.

In just his court, he said, he had 36 class A felony cases, 91 class B felony cases, 128 class C felony cases, 43 class D felony cases and 1,848 misdemeanors.

“What would you have us do?” he asked.

Maughmer acknowledged the difficult choices the council was forced to make in deciding on the mandated reductions.

“I understand you may not have anything you can do about it,” he said.

Maughmer referred to the fact that judges have the authority to mandate appropriations to carry out the essential work of the courts.

He said he consulted with the Indiana Department of Local Government Finance and had been unable to get a firm answer about what would happen should the judges decide to take that approach.

“I don’t want to do that, though, if it means that needed resources will be taken from other departments,” he said.

Brian Reed, the county council president, said that would be the likely outcome.

“And therein lies the problem with prioritizing,” he said.

Posted by Marcia Oddi on Sunday, September 18, 2011
Posted to Indiana Courts

Ind. Courts - "No-shows plague jury trials in Indiana, Kentucky"

Harold J. Adams has the long story in today's Louisville Courier Journal. A few quotes:

Though it is unusual for a trial to be delayed for lack of jurors, courts in both Indianaand Kentucky often have trouble finding enough people to serve in civil and criminal trials — despite the fact that judges could find people who ignore summonses in contempt.

The problems appears especially bad in Clark and Floyd counties in Indiana. Only 38 percent of the 39,839 questionnaires to prospective jurors in Clark County from January 2008 to July 2011 were returned.

And of the 7,235 people summoned to jury duty, nearly 1,200 didn’t show up.

In neighboring Floyd, where statistics are available only from January 2011 through August 23, the return rate on 4,500 questionnaires was 58 percent, with a no-show rate of 20 percent.

Statewide figures were not available for Indiana because not all counties use the jury-management system provided by Indiana.

The problem isn’t much better in Kentucky, where courts sent jury summonses last year to 495,283 people and received responses from only 62 percent.

Posted by Marcia Oddi on Sunday, September 18, 2011
Posted to Indiana Courts

Saturday, September 17, 2011

Environment - St. Joe Co. to IDEM: Enforce law at egg farm; Pick of the Chick accused of violating Clean Water Act

This March 5, 2009 ILB entry was headed "Pick of the Chick in the news again," and includes references two earlier ILB entries.

Today Erin Blasko of the South Bend Tribune reports in a story that begins:

The St. Joseph County Health Department once again is requesting that the Indiana Department of Environmental Management force a local egg producer to comply with the Clean Water Act or shut the producer down, according a letter obtained by The Tribune.

In the letter, dated Sept. 1 and addressed to IDEM's commissioner, Thomas Easterly, county health Commissioner Dr. Thomas Felger accuses Pick of the Chick of violating the act via the illicit release of liquid waste at its facility on Madison Road in Madison Township.

According to the letter, the company pumps the water it uses to wash its eggs into a confinement building, mixes it with liquid chicken manure, then releases it into a field that drains into the St. Joseph River, posing a public health risk.

As part of its permitting process, IDEM ordered the company to dig lagoons to collect the waste in 2008, according to the letter, but it has not done so -- a fact that continues to frustrate the health department.

"Since 2008, we have repeatedly requested that IDEM ... require that (Pick of the Chick) comply with the law or close the facility," Felger writes. "We cannot wait until the unsanitary conditions at this facility cause an outbreak of disease to effectively enforce the laws designed to protect public health."

In a separate letter to the Environmental Protection Agency, the health department also requests that officials there monitor IDEM's success in addressing non-compliance at Pick of the Chick.

For background, see the exhaustive investigative report by Clark Kauffman of The Des Moines Register, linked in this Sept. 2, 2011 ILB entry.

Posted by Marcia Oddi on Saturday, September 17, 2011
Posted to Environment

Friday, September 16, 2011

Environment - "NWI Community Is Torn Over Expansion of Oil Refinery"; New Haven neighbors protest wire plant

Long, important story by Kari Lydersen of the NY Times, published Sept. 15th, re the BP refinery in Whiting that "is undergoing a large expansion to process more Canadian tar sands oil by 2013." Here is a quote:

Across the Midwest, refineries like BP are expanding to process the tar sands oil — heavy, gooey oil mixed with sand in vast deposits that will be shipped via pipeline from Alberta. Tar sands oil is expected to be a staple of this country’s energy future.

Opposition from citizen and environmental groups and citations from the federal Environmental Protection Agency mean BP will now most likely have to install cutting-edge pollution-control equipment that BP officials and environmental lawyers say will make the BP facility a model for other refineries.

Environmental groups are pushing BP, and the two are close to agreement on a consent decree designed to limit the effect of the refinery expansion. But even as environmentalists take on the oil giant, they are finding that they must also make their case to local residents, who want jobs more than they worry about new pollution, Mr. Kozel and other local leaders said.

In the face of a slow economy, BP’s expansion is creating jobs on the southern rim of Lake Michigan, an area full of heavy industry and home to some of the worst air quality in the United States. The project will create about 5,000 construction positions, the company said, and 80 to 100 permanent jobs.

Updating this August 13th story in the Fort Wayne Journal Gazette, Vivian Slade reports today on yesterday's public meeting. A quote:
The Indiana Department of Environmental Management hosted the meeting after receiving a number of written comments and phone calls regarding the air quality permit application for SDI La Farga LLC. The location of the proposed plant at 1460 S. Ryan Road is a concern for many neighbors worried about the combination of emissions from the proposed facility and an adjacent plant, OmniSource Superior Aluminum, which is also owned by the same company, Steel Dynamics Inc.

About 50 people came to the hearing, with about 15 voicing objections.

Robert Humphreys was angered when Doug Wagner, an IDEM environmental specialist, said early in the meeting there was no criteria by which IDEM could refuse the permit.

“This is insane,” Humphreys said repeatedly. “Why on earth would you want to poison our air?”

Wagner explained that as long as the company complies with emissions limitations as dictated by the federal government, the state is in no position to deny a permit. What usually happens, he said, is that after modifying the permit and adding more stringent regulations, the company will sometimes withdraw the permit application.

Posted by Marcia Oddi on Friday, September 16, 2011
Posted to Environment

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

For publication opinions today (1):

In Jon Paul Tongate v. State of Indiana, a 7-page opinion, Judge Crone writes:

The State charged Jon Paul Tongate with one count of class D felony receiving stolen property. A magistrate presided over the jury trial, and the jury found him guilty as charged. Tongate filed a motion to correct error, and the trial court judge denied it after listening to an audio recording of the trial. Tongate now appeals, arguing that the magistrate was required to rule on the motion to correct error and that there was insufficient evidence to support his conviction. We conclude that the magistrate was not required to rule on the motion to correct error and that Tongate‟s conviction is supported by sufficient evidence. Therefore, we affirm.
NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, September 16, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Public Comments Being Accepted as Court Considers Possible Changes to the Senior Judge Program

The Indiana Supreme Court is seeking comments from the public, bar and bench on possible changes to the senior judge program. Comments can be submitted by email or postal mail through December 1, 2011. Here is the news release.

Posted by Marcia Oddi on Friday, September 16, 2011
Posted to Indiana Courts

Ind. Decisions - More on: Supreme Court disciplinary order re attorney fees

Donald R. Lundberg, Barnes & Thornburg, who formerly was the Indiana Supreme Court Disciplinary Commission Executive Secretary, co-authored (with Chuck Kidd) the Indiana Law Review article: "You Say You Want an Evolution? An Overview of the Ethics 2000 Amendments to the Indiana Rules of Professional Conduct", 38 Ind. L. Rev. 1255 (2005). Lundberg sent this note to the ILB last evening re the Sept. 14th ILB entry on the disciplinary opinion, In re Hammerle, and the ILB's question re amendments to the Rules of Professional Conduct and when they took effect:

These were the so-called Ethics 2000 amendments and were quite sweeping, although as the title of our Indiana Law Review article suggests, not revolutionary. They are sometimes called that because they followed on the ABA's Ethics 2000 Commission amendments to the ABA Model Rules.

A red-line version of these amendments can be found here on the Supreme Court's website. This part of the Supreme Court's website is a good place to go to get rule-amendment history. I agree with you that it is difficult to find this information in the history notes at the end of the rules or elsewhere.

There were, in fact, some provisions in these amendments that could have arguably had an impact on Hammerle's case. Most prominently the addition of a comment to Rule 1.8(a) that is NOT contained in the parallel ABA Model Rule, which states: "Paragraph (a) applies when a lawyer seeks to renegotiate the terms of the fee arrangement with the client after representation begins in order to reach a new agreement that is more advantageous to the lawyer than the initial fee arrangement."

Inexplicably, this language is not red-lined as a Jan. 2005 addition even though it was. While new to the Indiana Rules of Professional Conduct, this concept was not a new one. This was part of the Court's analysis and reasoning in a lawyer discipline case, Matter of Hefron, 771 N.E.2d 1157 (Ind. 2002).

One more thing: the American Bar Association Standing Committee on Ethics and Professional Responsibility, of which I am a newly appointed member, issued a new ethics advisory opinion on August 4, 2011, Formal Opinion 11-458, entitled "Changing Fee Arrangements During Representation." It is available here.

A final note: There is something about the Hammerle case that I find very puzzling. The Court finds violations of both Rules 1.5(a) (the reasonable fee rule) and 1.8(a) (the rule governing business transactions or other economically adverse transactions with clients). Here is the language that I find so curious:

"Respondent's violation of Rule 1.5(a) is based solely on Respondent's charging of a fee in excess of the original fee agreement. The Commission does not contend that the total fee the client paid to Respondent would have been unreasonable if Respondent had complied with Rule 1.8(a) in modifying the fee agreement."
In other words, it was not, in any objective sense, an unreasonable fee; what was unreasonable was that Hammerle changed the terms of the fee understanding mid-representation. I understand that and understand that it would create a violation of Rule 1.8(a). I do not understand how that makes the fee unreasonable. There is nothing about Rule 1.5(a) that considers the process by which a fee agreement is created to be a factor in decided whether the fee itself is unreasonable.

Posted by Marcia Oddi on Friday, September 16, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Indiana Supreme Court justices on Thursday weighed whether to overturn a DeKalb County murder conviction"

Yesterday's oral argument in Jeffery W. Cain v. State of Indiana (see ILB entry here), which was a direct appeal to the Supreme Court, is the subject of a long story today in the Fort Wayne Journal Gazette, reported by Niki Kelly. Some quotes:

Indiana Supreme Court justices on Thursday weighed whether to overturn a DeKalb County murder conviction due to a prosecutor’s belated plea deal and inflammatory closing statements. * * *

Cain’s attorney – Adam Squiller argued Cain’s conviction and sentence should be vacated because the prosecution sprung a surprise witness after a jury had been empaneled and opening statements already given.

That witness was Clint Hess of Corunna – a co-defendant charged with murder who previously was deemed “unavailable” for Cain’s trial because he was protecting himself against self-incrimination.

But on the eve of the first witness being called, DeKalb County Prosecutor ClaraMary Winebrenner offered to drop the murder charge against Hess in exchange for a four-year sentence for assisting a criminal if he would testify against Cain. * * *

Deputy Attorney General Henry Flores said the only surprise was that Hess finally accepted a plea and agreed to testify.

He noted that the deal came the night of the first day of trial after a jury had been selected, and that the defense attorney was given notes of Hess’ likely testimony the next morning before opening statements.

Flores also argued against the second claim offered by the defense that Winebrenner – who attended Thursday’s hearing at the state capitol – went too far in her closing argument when she urged the jury to give Cain life in prison without parole.

During her closing statement, Winebrenner pointed out that Indiana’s good-time credit rules cut sentences in half, which is accurate. But then she went further, saying the Indiana Department of Correction has a way of making their own rules and finding ways to cut sentences.

“That’s just false,” Indiana Supreme Court Justice Frank Sullivan said. The General Assembly makes rules regarding prison time, and the DOC has no ability to arbitrarily reduce a person’s sentence.

Squiller said Winebrenner played to the fears of the jury by giving “the impression that if you don’t give him life in prison, (the DOC) can cut him loose.”

He argued this should be considered fundamental error and requires a new trial.

But Flores countered that the defense didn’t object at trial and the judge’s jury instructions “cured the defect.”

Posted by Marcia Oddi on Friday, September 16, 2011
Posted to Upcoming Oral Arguments

Ind. Courts - Plowman's "Verdict sends a message"

Updating yesterday's entry, Carrie Ritchie of the Indianapolis Star has this wrap-up today of the federal jury verdict in the Lincoln Plowman trial.

Posted by Marcia Oddi on Friday, September 16, 2011
Posted to Ind Fed D.Ct. Decisions

Law - "Law School Supported Incubator Programs Starting to Catch On"

That is the heading to a post at the Law Librarian Blog that begins:

In what was probably the first of its kind, CUNY Law created and incubator program in 2007 designed to help its grads launch careers as solo practitioners. CUNY's incubator program offers low-cost office space, staff support and mentoring opportunities from experienced solo and small firm practititioners for up to two years. Office space is shared with other CUNY Law grads who are also pursuing the same career path by way of the program.
My thought is that this is a good idea, but it doesn't address the problem of supply and demand -- too many practitioners (no matter how well-trained) and a dwindling client base.

Posted by Marcia Oddi on Friday, September 16, 2011
Posted to General Law Related

Ind. Courts - More on "Ind. Judges Ban Court Employees' Facebook, Twitter Postings"

Updating this ILB entry from Sept. 15th, here is the "Social Media and Social Networking Policy for Chambers’ Staff," for the United States District Court for the Southern District of Indiana.

Prof. Joel Schumm writes he: "posted it (with permission) on the law school's court externship site because it applies to law student externs."

Posted by Marcia Oddi on Friday, September 16, 2011
Posted to Indiana Courts

Thursday, September 15, 2011

Ind. Courts- More on: Plowman bribery trial starts this week in federal court

Updating this ILB entry from Sept. 6, Mr. Plowman has been found guilty of bribery and extortion charges. See Indianapolis Star update.

Posted by Marcia Oddi on Thursday, September 15, 2011
Posted to Ind Fed D.Ct. Decisions

Stage Collapse - "State Fair stage collapse ‘foreseeable disaster’ "

Updating this ILB entry from yesterday evening (that includes links to the documents), the Gary Post-Tribune has this report today from Rick Callahan - some quotes:

INDIANAPOLIS — An emergency response plan drafted 10 months before the Indiana State Fair’s deadly stage collapse details how staff should handle evacuations, but it doesn’t spell out the precise scenarios that would trigger an evacuation, newly released documents indicate.

The 71-page emergency plan released Wednesday by fair officials describes more than a dozen situations, including severe weather, shootings and fires, that would prompt fair officials to activate their emergency protocols. But the exact conditions that would require the need for an evacuation are not clearly defined in the document, which leaves the final decision on evacuations up to fair officials.

“It really comes down to a matter of judgment,” fair spokeswoman Stephanie McFarland said.

Fair officials released the plan, along with numerous other documents related to the company that installed the stage rigging and an insurance policy, in response to public records requests from The Associated Press and other media outlets. * * *

McFarland said the wording in the emergency plan’s communication section on what staff should or not say to fairgoers after an emergency comes from the general guidance of how to handle crisis management.

“That’s kind of the general template guidance you’ll find in a number of crisis communication textbooks and expert publications,” she said.

An insurance policy released Wednesday by fair officials insured the fair for business losses in the event that evening concerts scheduled during four days of the 17-day fair were rained out.

That policy insured the fair for up to $1.45 million if all of those concerts were rained out, but contained no provision for severe weather such as winds and lightning. It specifies that the fair could claim up to $355,000 in losses if rains had canceled the Sugarland and other concerts scheduled for Aug. 13, the day of the stage collapse.

McFarland said the precipitation that night was not enough to meet the policy’s criteria, of rainfall of a third of an inch or more.

Posted by Marcia Oddi on Thursday, September 15, 2011
Posted to Stage Collapse

Ind. Courts - More on: Supreme Court agrees to permit bulk distribution of and also remote access to the records of those courts using the Odyssey case management system

Updating this ILB entry from yesterday, see also this entry in the Doxpop blog, discussing the order.

Posted by Marcia Oddi on Thursday, September 15, 2011
Posted to Indiana Courts

Ind. Gov't. - "In 2010, Indiana ranked 48th in voter turnout"

"We're involved, except at ballot box" is the headline to an editorial today in the Indianapolis Star about the results of the newly released Indiana Civic Health Index, released Wednesday. A quote:

In the Indiana Civic Health Index, released Wednesday, Indiana placed 21st among the states in the percentage of residents engaged in volunteer work -- 1.2 million Hoosiers, or more than one-quarter of the population. (The report is available here, via a s-l-o-w link)

Unfortunately, that very commendable level of involvement does not extend to the ballot box. In 2010, Indiana ranked 48th in voter turnout.

The Star today also runs a letter from Indianapolis attorney William R. Groth, who represented the plaintiffs in the legal challenge to the Indiana voter ID law. A sample:
Even before Indiana's harsh voter identification law took effect a few years ago, Hoosiers already suffered under the most restrictive election laws in the nation. These laws too often make voting an obstacle course or endurance test rather than facilitating this most fundamental expression of our democratic values.

Posted by Marcia Oddi on Thursday, September 15, 2011
Posted to Indiana Government

Ind. Gov't. - "Life is sunnyside up for Indianapolis chicken owners"

The ILB's most recent "urban chickens" entry was here, on August 14th. Today Will Higgins of the Indianapolis Star has a great feature story on Indy's city chickens. A quote:

Elsewhere, including in Madison, chicken enthusiasts have had to fight for legalization and in recent years have succeeded in overturning poultry bans in city after city.

But Indianapolis' chicken community (how else to put it?) was spared having to organize politically, because Indianapolis never saw fit to ban chickens.

To label an entire city "chicken-friendly" might be a stretch, but Kate Johnson, a spokesperson for the city's department of code enforcement, said her office has fielded not one single complaint about chickens.

That may be because most backyard chickens are hens, not roosters -- roosters are the ones that crow.

This Sept. 15, 2009 ILB entry answered "yes" to the then-cloudy matter of whether one might legally raise chickens in Indianapolis.

Posted by Marcia Oddi on Thursday, September 15, 2011
Posted to Indiana Government

Environment - "IU to take lead in DOE-funded Lake Erie offshore wind study"

From the news release:

BLOOMINGTON, Ind. -- Indiana University Bloomington Professors Rebecca J. Barthelmie and Sara C. Pryor, along with colleagues from six institutions and companies in the U.S. and Europe, have been awarded $700,000 by the U.S. Department of Energy (DOE) to study Lake Erie wind resources and to perform a detailed evaluation of remote sensing technologies for wind resource estimation.

Posted by Marcia Oddi on Thursday, September 15, 2011
Posted to Environment

Courts - "Illinois court asked to review alleged bias by justice "

A March 22, 2008 ILB entry quoted a WSJ opinion piece headed "Justice for Sale." A sample:

Lloyd Karmeier, the winner of a $9.3 million campaign for the Illinois Supreme Court in 2004, was supported by $350,000 in direct contributions from employees, lawyers and others directly involved with the insurer State Farm and/or its then pending appeal, and by an additional $1 million from larger groups of which State Farm was a member, or to which it contributed. Almost immediately upon taking the bench, he cast a vote ending proceedings on a $456 million claim against State Farm. A St. Louis Post-Dispatch editorial put it this way: "Although Mr. Karmeier is an intelligent and no doubt honest man, the manner of his election will cast doubt over every vote he casts in a business case."
In today's Chicago Sun-Times Abdon M. Pallasch reports:
Some Tennessee lawyers, including former U.S. Sen. Fred Thompson, are asking the Supreme Court of Illinois to take a new look at whether one of its own was too biased to rule in a 2005 case that overturned a billion-dollar verdict against State Farm Insurance.

The state supreme court and even the U.S. Supreme Court both considered and rejected the argument that Judge Lloyd Karmeier was biased because of the $4.5 million he raised in his campaign, about $350,000 came from people linked to State Farm.

What’s different now?

Research from a former FBI agent shows State Farm raised $2.4 million to $4 million of Karmeier’s $4.5 million budget, according to the petition the attorneys have filed with the state supreme court on behalf of State Farm customers.

How Appealing has collated links to several additional stories.

Posted by Marcia Oddi on Thursday, September 15, 2011
Posted to Courts in general

Ind. Courts - "Ind. Judges Ban Court Employees' Facebook, Twitter Postings"

That is the headline to this story by Stephanie Rabiner on the national FindLaw Strategist website, that warns: "Get ready for cranky clerks, Indiana. And maybe a lawsuit..".

(See this Sept. 6th ILB entry for background.)

Posted by Marcia Oddi on Thursday, September 15, 2011
Posted to Indiana Courts

Ind. Courts - "Within the last five years between $988,000 and $1,040,000 may have been paid to managers and workers who ran the post’s bingo games"

Archie Ingersoll has the story in today's Fort Wayne Journal Gazette. Some quotes:

FORT WAYNE – Five people were charged Wednesday in a scheme that authorities say involved about $1 million in illegal payments to purported volunteers who ran charitable bingo games at American Legion Post 330 in New Haven.

Investigators with the Indiana Gaming Commission believe that within the last five years between $988,000 and $1,040,000 was paid to managers and workers who ran the post’s bingo games, according to Allen Superior Court documents.

Posted by Marcia Oddi on Thursday, September 15, 2011
Posted to Indiana Courts

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

In Cheryl Burns v. Orthotek, Inc. (ND Ind., Simon), a 13-page opinion, Judge Sykes writes:

This case requires us to decide a dispute over the pension benefits of the late Dr. Richard Burns. Before his death Dr. Burns designated his three sons as beneficiaries. But because the Employee Retirement Income Security Act (“ERISA”) guarantees surviving spouses certain benefits, this designation is only effective if his widow, Cheryl Burns, consented. She signed a written consent form, but after her husband died, she claimed her consent was invalid because it was not witnessed, as required by ERISA. The pension plan found her consent valid and denied her claim for benefits. The district court upheld that decision, invoking the substantial-compliance doctrine and finding that the consent form Mrs. Burns signed substantially complied with ERISA.

We affirm, although on different grounds. For reasons we will explain, the substantial-compliance doctrine does not apply here. Nevertheless, the pension plan was within its discretion to deny Mrs. Burns’s claim for benefits. Although no witness signed the consent form as a witness, under the unusual facts of this case, we agree with the plan that Dr. Burns, the plan representative, witnessed his wife’s written consent to the waiver, as required by ERISA.

Posted by Marcia Oddi on Thursday, September 15, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)

For publication opinions today (4):

In Board of Works of the City of Lake Station, Indiana, et al. v. I.A.E., Inc., Consulting Engineers, a 16-page opinion, Judge Darden writes:

The Board of Works of the City of Lake Station, Indiana, and the City of Lake Station (collectively, “Lake Station”) appeal the jury's verdict and the trial court's rulings in favor of I.A.E. Consulting Engineers, Inc. (“I.A.E.”). We affirm but remand for further proceedings. * * *

Although Lake Station does not question the computation of prejudgment interest, we raise the issue sua sponte as part of our duty to conserve public funds. When there is no contractual agreement for the payment of interest, such as in this case, interest on a damage award “should not be compounded but calculated as simple interest.” [cites omitted] Accordingly, we remand with instructions that the trial court recalculate the prejudgment interest award, using simple interest from the date of I.A.E.'s demand.

In City of Jeffersonville, Indiana and City of Jeffersonville Sanitary Sewer Board v. Environmental Management Corporation , a 30-page opinion, Judge Riley writes:
Appellants-Defendants, the City of Jeffersonville (Jeffersonville), and the City of Jeffersonville Sanitary Sewer Board (Sewer Board) (collectively, the City), appeal the trial court’s judgment in favor of Appellee-Plaintiff, Environmental Management Corporation (EMC), with respect to EMC’s claims that (1) the City breached its contract with EMC, (2) violated Indiana’s Open Door Law, and (3) acted in contempt of an agreed entry and order. * * *

Based on the foregoing, we conclude that (1) the trial court did not err in finding that the City breached its contract with EMC; (2) the trial court did not abuse its discretion in excluding documentary evidence; (3) the trial court erred in finding that the City violated Indiana’s Open Door Law, as EMC waived its claim by failing to file a timely complaint; (4) the trial court did not abuse its discretion in finding the City in contempt of the Agreed Entry; (5) the trial court abused its discretion in awarding EMC attorney’s fees to compensate it for all fees incurred after its first Open Door Complaint; (6) the trial court erred in awarding EMC costs that included compensation for expenses other than litigation expenses; and (7) the trial court did not abuse its discretion in reducing EMC’s corporate support expenses from its losses during its calculation of EMC’s damages. We reverse the trial court’s judgment with respect to the City’s Open Door violation, its award of attorney’s fees, and its award of costs to EMC. We remand to the trial court with instructions that the trial court modify its award of attorney’s fees and costs to EMC to include only the amount of attorney’s fees EMC incurred as a result of its contempt complaint and costs reflecting EMC’s losses for filing fees and statutory witness fees. Affirmed in part, reversed in part, and remanded.

In Frederick R. Lucas v. Darrin McDonald, a 7-page opinion, Chief Judge Robb writes:
Frederick Lucas appeals the trial court’s denial of his Verified Petition for Relief from his lifetime sex offender registration requirement. He presents one issue for our review, which we restate as whether the trial court abused its discretion in denying his petition. Concluding the trial court did not abuse its discretion, we affirm. * * *

Indiana Code section 11-8-8-22(g) expressly provides the trial court “has the discretion to deny a petition under this section, even if the court makes the findings under [subsection (g)].” Lucas repeatedly rests his argument on the fact that he is eligible for relief under the relevant statute because he proved the requisite findings, along with the facts that he has no other criminal record, has complied with registration requirements, and has not bothered the victim since his offense. For us to conclude that the trial court abused its discretion because Lucas meets all the required findings for relief would be to ignore subsection (g)’s express discretionary language that applies even when a petitioner has shown all necessary findings.

In National Wine & Spirits, Inc., National Wine & Spirits Corporation, NWS Michigan, Inc., and NWS, LLC v. Ernst & Young, LLP, an 11page opinion, Chief Judge Robb writes:
National Wine and Spirits (“NWS”) appeals the trial court's grant of Ernst & Young's (“E&Y”) second motion for summary judgment. NWS raises one issue, which we expand and restate as three: whether E&Y's second summary judgment motion was improper; whether the trial court erred in granting E&Y's second motion for summary judgment; and, alternatively, whether res judicata bars NWS's deception claim. Concluding the successive motion was proper, but that there are genuine issues of material fact and res judicata does not bar NWS's claim, we reverse and remand.

NFP civil opinions today (8):

Kathryn M. Richardson v. Todd E. Richardson (NFP)

Term. of Parent-Child Rel. of N.S. and A.S.; A.L. v. IDCS (NFP)

Every Meadows LLC v. McKnight Excavating Inc., and Chad McKnight (NFP)

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

Brent Turner v. Jody (Turner) Bruce (NFP)

Michael J. Stohler v. Mary Anne Stohler (NFP)

Mitchell Lynn v. Janet S. Greer and James L. Greer (NFP)

Term. of Parent-Child Rel. of A.M. and M.M.; T.H. & A.A.M., Sr. v. IDCS (NFP)

NFP criminal opinions today (7):

Linzy C. Motton v. State of Indiana (NFP)

Cordaro Clark v. State of Indiana (NFP)

Addison Pijnapples v. State of Indiana (NFP)

Ronnie Harness v. State of Indiana (NFP)

Torrien Jefferson v. State of Indiana (NFP)

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

Adrian F. Cole v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 15, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from Supreme Court

In Mary Beth Lucas and Perry Lucas v. U.S. Bank, N.A., as Trustee for the C-Bass Mortgage Loan Asset-Backed Certificates, Series 2006-MH-1, a 14-page, 3-2 opinion, Justice David writes:

In this case, a mortgage holder filed a foreclosure action against the loan borrowers. In response, the borrowers asserted numerous legal defenses and claims against the mortgage holder and loan servicer. The borrowers asked for a jury trial on these defenses and claims, but the trial court denied the request. We affirm and hold that the borrowers‘ claims and defenses shall be tried in equity because the core legal questions presented by the borrowers‘ defenses and claims are significantly intertwined with the subject matter of the foreclosure action. * * *

This Court is confronted with the following issue: once a foreclosure action invokes the equity jurisdiction of a trial court, when are the borrowers‘ legal defenses and claims subsumed into equity? * * *

We agree with the Court of Appeals that these claims are legal causes of action and that the Lucases request legal damages for many of them. But after looking at the cause as a whole, we conclude that the core questions underlying the Lucases‘ legal claims significantly overlap with the foreclosure action that invoked the equitable jurisdiction of the trial court.

The factual contentions that underlie the Lucases‘ legal claims can be summarized as follows: (1) U.S. Bank or Litton misled the Lucases on the terms of the loan documents and the handling of the Lucases‘ monthly payments; (2) U.S. Bank or Litton failed to properly account for and apply the Lucases‘ monthly payments to pay property taxes and insurance; (3) as a result of incorrectly calculating the Lucases‘ debt and misapplying the monthly payments, U.S. Bank or Litton declared the Lucases in default when in fact the Lucases were current and not liable for foreclosure; and (4) because the Lucases were current in their payments, U.S. Bank or Litton have wronged the Lucases by demanding payments the Lucases did not owe and by filing the present lawsuit when the Lucases were not in default. Ultimately, the Lucases claim that but for the unlawful actions by U.S. Bank and Litton, the Lucases would not have suffered any money damages, their account would be considered current, and the foreclosure complaint would not have been filed.

The issues from the foreclosure action boil down to (1) the terms of the parties‘ agreement and the payments due under those terms; (2) the amount of the Lucases‘ payments; (3) the application of those payments; and (4) whether the Lucases failed to pay as agreed so that U.S. Bank could rightfully take steps to collect the debt the Lucases owed. When comparing the core issues presented by the Lucases‘ legal defenses and claims to the core issues presented by the foreclosure action, it is evident that they are closely intertwined with one another.

The Lucases insist that for purposes of deciding whether a right to trial by jury exists, it should not matter that U.S. Bank sued first. We agree—the trial by jury inquiry is not resolved by a simple determination of who sued first. But when a foreclosure claim is filed, whether in the original complaint or as a counterclaim, it invokes the equity jurisdiction of a court. At that point, courts must examine various aspects of any asserted legal claims or defenses to determine whether to invoke the equitable cleanup doctrine. In this case, despite the inclusion of some legal claims and requests for legal remedies, we find the core legal issues overlap with the foreclosure issues to a significant degree.

We wholeheartedly recognize that the Indiana Constitution protects the right to a trial by jury for legal claims when the essential features of a civil suit are not equitable, and we do not narrow that right. But the essential features of this suit are equitable. Although there may exist isolated or peripheral issues of a legal nature, the heart of all of the legal claims in this case rest on whether the Lucases are, in fact, in default and, if so, what the amount of their debt is. Accordingly, the equitable cleanup doctrine is properly invoked, and the legal claims are subsumed into equity to obtain more final and effectual relief for the parties.

Conclusion. Equity has taken jurisdiction over the essential features of this lawsuit, including the Lucases‘ affirmative defenses, counterclaims, and third-party claims. Accordingly, we affirm the trial court‘s denial of the Lucases‘ request for a jury trial.

Shepard, C.J., and Sullivan, J., concur.
Dickson, J., dissents with separate opinion in which Rucker, J., concurs. [The one-page dissent concludes] Today's majority opinion appears to dilute the teachings of Songer and its cautious respect for the right to jury trial for purely legal claims that are distinct and severable. Instead of focusing simply on whether multiple causes of action are "distinct and severable," the standard prescribed in Songer, the majority superimposes a further test—whether the legal claims "significantly overlap" with the subject matter of the original equitable claim. In my view, this new test may often foreclose a defendant's right to a jury trial on distinct and severable legal claims. I prefer that the analysis prescribed by Songer be followed without modification with the result that the defendants should not be deprived of their right to jury trial as to their purely legal claims that are sufficiently distinct and severable from the equitable foreclosure action

Posted by Marcia Oddi on Thursday, September 15, 2011
Posted to Ind. Sup.Ct. Decisions

Wednesday, September 14, 2011

Ind. Decisions - Supreme Court vacates transfer in case heard last Thursday

The Supreme Court heard oral argument in the case of Allied Property and Casualty Insurance Co. v. Linda Good, et al on last Thursday, Sept. 8th. In a 4-1 order filed Sept. 12th and posted today, the CJ writes:

The Court had granted a petition seeking transfer of jurisdiction over this appeal from the Court of Appeals. (Order, June 3, 2011.) After further review, including oral argument, a majority of the Court has determined that transfer of jurisdiction was improvidently granted. Accordingly, the order granting transfer is VACATED.

The Court of Appeals opinion reported as Allied Property and Casualty Insurance Company v. Good, 938 N.E.2d 227 (Ind. Ct. App. 2010), reh’g denied, is no longer vacated and is reinstated as Court of Appeals precedent. See App. R. 58(A) & (B). The transfer petition filed by Appellee Linda Good is DENIED. [emphasis by ILB]

Pursuant to Appellate Rule 58(B), this appeal is at an end.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Ind. Sup.Ct. Decisions

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

Updating this ILB entry from August 31st, the State Fair Commission has added a number of new documents to its site.

Sandra Chapman of WTHR 13 has the story here. Some quotes:

INDIANAPOLIS - Internal records show the Indiana State Fair Commission did not have wind or adverse weather coverage for its outdoor concerts.

That's one of the findings uncovered by 13 Investigates, in hundreds of newly released documents.

Seven people died when rigging from the grandstand stage collapsed a month ago. Now there are more revelations from a confidential emergency response plan designed to save lives, if followed. * * *

A newly released 70-page emergency response plan says it was up to Fair Director Cindy Hoye to proclaim an emergency before any evacuations.

In the event of a severe weather warning, security personnel were to notify key staff, show promoters and campers and turn on a yellow warning light at the Home and Family Arts Building. There are no indications that ever happened.

Thousands of concert goers at the foot of the stage were never told of the severe thunderstorm warning, as directed in the one-page severe weather policy provided to 13 Investigates days after the scaffolding fell..

"As you can see to the west, there are some clouds. We are all hoping for the best, that the weather is going to bypass us. But there is a very good chance that it won't. So, just a quick heads-up before the show starts," began the announcement from M.C. Bob Richards who was sent on stage by Hoye.

In the case of a tornado or high winds, "security personnel" are again to direct those outside to seek shelter in the nearest building or tunnel. But what's unclear is who was acting as the "security personnel."

Indiana State Police Capt. Brad Weaver, who was seen in plain clothes immediately after the incident, was not on duty.

"I was not aware of the severe thunderstorm warning. We had been monitoring the weather and I was in an off duty capacity and as soon as I saw the weather was coming, I immediately went to my smart phone and found Director Hoye," Captain Weaver told reporters. "At 8:45 Director Hoye and I were watching the radar on my smart phone," he added.

Minutes before the gust whipped through, Weaver says he and Hoye were getting ready to evacuate.

"When they asked my advice I said I would delay the second part of the show of Sugarland coming on the stage," explained Paul Poteet on August 16th.

Poteet's name is now listed on tort claim notices sent to the state for potential upcoming lawsuits.

Despite the mention of high winds within the policy, it appears the State Fair Commission was more concerned about rain. It contracted an independent meteorologist to monitor for rain insurance at its Grandstand concerts.

Its $1.4 million insurance policy would allow the commission to collect up to $500,000 if a concert was cancelled because of one-third of an inch of rain accumulation or more.

But there was no coverage for wind, lightning or adverse weather.

The contract for Mid-America Sound Corp. the company in charge of the stage rigging that collapsed, was also released.

The company says it provides on-site technicians during the entire fair, and purchased a 10-tower load bearing roof, unlike any other in the Midwest, with the State Fair Grandstand in mind.

Mid-America Sound also had liability insurance, with a $700,000 cap per person and a $1 million payout per incident.

Fair posts more documents

The documents provided on the fair's website Wednesday include the contract with opening act for Sugarland, Sara Barellies, the Chartis weather insurance policy, public records requests and responses received by the Indiana State Fair Commission, the emergency response plan for ISFC and the Mid-American Sound Corporation document file.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Stage Collapse

Ind. Decisions - Federal Judge Pratt reverses her own TRO blocking Indiana from cutting the fees it pays pharmacists for dispensing Medicaid prescriptions by 38 percent.

Here is the short version:

The Court must reverse its decision on the TRO and DENY Plaintiffs' Motion for a Preliminary Injunction (Dkt. 12 ). Plaintiffs' Motion for a Preliminary Injunction (Dkt. 12) is DENIED. The State is free to implement and enforce the Fee Reduction. **SEE ENTRY**. Signed by Judge Tanya Walton Pratt on 9/14/2011. (JD)
This ILB entry from July 9 includes a copy of Judge Pratt's original order.

Here is today's 24-page opinion in Community Pharmacies v. Indiana FSSA. It begins:

Recently, the State used an emergency rulemaking procedure to lower the Medicaid “dispensing fee” reimbursed to pharmacies for filling prescriptions from $4.90 to $3.00 – a 38% decrease (the “Fee Reduction”). The impetus for the Fee Reduction was budgetary; the State simply needed to tighten its belt. The Fee Reduction went into effect on July 1, 2011. This lawsuit immediately followed, and, on July 8, 2011, the Court granted a temporary restraining order (“TRO”) in favor of Plaintiffs. The parties have now re-briefed the issues in a more comprehensive fashion, and the Court held oral arguments on August 24, 2011.

Since the inception of this case, Plaintiffs’ overarching argument has remained the same: The Fee Reduction is in violation of state and federal law and will cause irreparable harm. Plaintiffs maintain that even before the Fee Reduction, the dispensing fee was borderline inadequate for Indiana pharmacies. Thus, the Fee Reduction will make a bad situation worse and will force many pharmacies to seriously reevaluate whether the provision of Medicaid services is compatible with a viable business model. So, not only will the Fee Reduction hurt Plaintiffs financially, it could drive many pharmacies out of Medicaid altogether, thus harming certain Medicaid patients by restricting their geographic access to pharmacy services. The State counters that these apocalyptic scenarios are purely speculative, and, in any event, the Fee Reduction complies with state and federal law.

While the Court certainly sympathizes with Plaintiffs, the State’s position best aligns with the law at this stage of the proceedings. For the reasons set forth below, the Court must reverse its decision on the TRO and DENY Plaintiffs’ Motion for a Preliminary Injunction.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court disciplinary order re attorney fees

Some quotes from In the Matter of Robert W. HAMMERLE, filed Sept. 12, 2011 and posted today:

Stipulated Facts: In May 2005, Respondent was retained by a client charged with federal offenses. Respondent and the client entered into an agreement under which Respondent would represent the client for a "retainer/flat fee" of $35,000, plus an hourly fee of $250 if the trial lasted more than five days. Prior to this, the client had told Respondent he had no interest in a plea agreement, and the parties prepared for a multi-week jury trial.

After nearly seven months of work on the case, Respondent initiated discussions to revise the fee agreement. Respondent had concluded that the client was certain to be convicted after a lengthy trial and anticipated difficulty collecting the balance of his fee from an incarcerated client. The parties amended their fee agreement and agreed that the client would pay Respondent an additional flat fee of $20,000 and, in exchange, Respondent would drop billing by the hour for all work done after five days of trial. Respondent believed the ultimate fee under this modification would be more beneficial to the client given everyone's anticipation of a lengthy trial, but Respondent now recognizes he should have considered the possibility that the fee modification would be more beneficial to Respondent if the case could be resolved before trial. Respondent did not advise the client to consult with another attorney about of the advisability of amending the fee agreement, and he did not obtain the client's written consent to modify the original agreement. Not long after the fee agreement was modified, the government offered a plea agreement, which the client accepted on Respondent's advice.
The parties cite no facts in aggravation.

The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history in 37 years of practice; (2) Respondent has devoted substantial time to the representation of and service on behalf of indigent persons charged with crimes; (3) Respondent is remorseful and accepts full responsibility for his actions; and (4) Respondent has repaid $20,000 to the client.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

  • 1.5(a): Charging an unreasonable fee.
  • 1.8(a): Entering into a business transaction (modification of a fee agreement) with a client unless the client is given reasonable opportunity to seek independent counsel and the client consents in writing to the transaction.
Respondent's violation of Rule 1.5(a) is based solely on Respondent's charging of a fee in excess of the original fee agreement. The Commission does not contend that the total fee the client paid to Respondent would have been unreasonable if Respondent had complied with Rule 1.8(a) in modifying the fee agreement.

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

Here are the current Rules of Professional Conduct, including "amendments made through January 1, 2011". I don't see any history notes with the rules, so it is unclear when the rules went into effect and what amendments, if any, have been made over the years.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Supreme Court agrees to permit bulk distribution of and also remote access to the records of those courts using the Odyssey case management system

Earlier this week, the Supreme Court voted to make Odyssey bulk data available to third party vendors. Attached is the Order that was signed Sept. 13, 2011 by the Chief Justice, with all justices concurring.

If I understand this correctly, it will go a long way to solving a situation where, as the Supreme Court's Odyssey conversion expands to additional counties, it kicks offline long-time third-party information providers such as Doxpop* by not allowing such providers access to the case management data generated by the new Odyssey system.

The problem was first illustrated several years ago in Monroe County, which had for years been served by Doxpop. After the changeover, as noted in this Feb. 12, 2008 ILB entry, subscribers to DoxPop no longer had access to the Monroe County data, because JTAC did not permit outside access to its Odyssey CMS. The only access to Monroe County data became via the Supreme Court site. A Feb. 6, 2008 mailing from Doxpop on its Monroe County status stated:

On October 25, 2007, Doxpop submitted a request to the Division of State Court Administration to obtain access to Monroe County court information from the state's case management system now being used by the courts there. That request is under review by the Indiana Supreme Court, since ours appears to be the first application for information from the state system.

Unfortunately, Monroe County's permission to publish historical case information through Doxpop expires on 2/15, so we will be removing Monroe County court case information from Doxpop on the evening of 2/15. We continue to work with the Division in hopes that we may include public information from the Monroe County courts at the Doxpop website in the future.

Here is some further information, from a Jan. 10, 2010 ILB entry that near the end discusses "Linking up the courts so that they, and the public, can access the various courts' current and historical dockets":
[Doxpop] is a company that functions to network the data from the courts in more than half the counties in Indiana, regardless of whether the courts in question use the CSI CMS, or the CMS of one of the other providers used by various of the counties. Using Doxpop, courts in various counties can "linkup", and the service is also available to private subscribers, including attorneys.

The Odyssey system is networked by JTAC. Feeds from Odyssey courts are not available to private networks. In Monroe County, which became an Odyssey client last year, Doxpop was no longer allowed to link to the county courts' data feeds. The same would be the case, presumably, for any other company that wished to access a county court Odyssey feed.

Hopefully, the Court's order this week will mean that Doxpop and other qualified and vetted private companies can purchase this data in bulk, finesse it, and make it available to both the counties in their network and to private subscribers.

*Although Doxpop is currently one of the ILB's supporters, the ILB has been making these points for years.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (0):

In Kenneth Dwayne Vaughn v. State of Indiana , a 21-page, 2-1 opinion, Judge Vaidik writes:

Kenneth Dwayne Vaughn was on trial for a bank robbery and took the stand in his own defense. When his public defender asked him the first question, Vaughn began criticizing his attorney and was therefore non-responsive to the question. The trial judge told Vaughn to stop, but Vaughn did not listen. Vaughn was restrained and had a hand placed over his mouth in the presence of the jury. The jury was removed from the courtroom and later brought back in. When Vaughn finished his testimony, his attorney moved for a mistrial, which the trial court denied. Vaughn now appeals the denial of his motion for mistrial. Concluding that Vaughn was placed in a position of grave peril to which he should not have been subjected, we reverse and remand for a new trial. * * *

Vaughn’s one-time disruption did not create sufficient provocation to justify restraining Vaughn in front of the jury. His non-responsive answer to Attorney Holcomb’s open-ended question and subsequent efforts in trying to make his point – despite the trial court telling him to “Stop” – do not rise to the level of the court’s “extreme measures” of restraining him and having court staff place a hand over his mouth in front of the jury. Put differently, the punishment was out of proportion to Vaughn’s offense, as the trial court put it, of being “non responsive.” Tr. p. 346. Though these were temporary measures, the damage was permanent. And while Vaughn may have technically created the situation, there were less extreme measures that the trial court could have employed, such as warning Vaughn of the potential consequences or merely excusing the jury. Tellingly, when the trial court did speak to Vaughn about his actions after this incident, Vaughn testified and then remained in the courtroom for the remainder of the proceedings without incident. Although we recognize the volume of evidence against Vaughn, he is entitled to a fair trial. We therefore conclude that this event was so prejudicial that Vaughn was placed in a position of grave peril to which he should not have been subjected. The probable persuasive effect on the jury is undeniable. It marked Vaughn, who was on trial for robbing a bank, as a dangerous person who needed to be restrained and suggested that his guilt was a foregone conclusion.

We understand the difficulty of being a trial judge and making decisions in the flash of a moment. We realize that it sometimes takes superhuman effort to restrain the natural frustration of dealing with difficult people at challenging times. We also recognize that this action is totally out of character for this seasoned and fine trial court judge. But we also understand the influence of a judge’s conduct on the jury. Muzzling and restraining Vaughn in front of the jury for this momentary outburst deprived him of an otherwise fair trial before an untainted and impartial jury. Accordingly, we conclude that the trial court abused its discretion in denying Vaughn’s motion for mistrial. We therefore reverse and remand for a new trial.

DARDEN, J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [that begins, at p. 14 of 21] I do not share the Majority’s view that the trial court’s remedial response to Vaughn’s refusal to abide by the court’s instructions was reversible error, and therefore respectfully dissent.

NFP civil opinions today (4):

David Pannell v. Steve Carter, et al. (NFP)

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

Valdis J. Minkis v. Sherry J. Minkis (NFP)

Indiana State Police v. Tyjuan Mayes (NFP)

NFP criminal opinions today (4):

Robert Johnson v. State of Indiana (NFP)

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

Janice White v. State of Indiana (NFP)

Christopher R. Perry v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Knightstown judge sues to save town court"

On Feb. 21, 2011, the ILB posted this entry headed "Knightstown council wants new judge to be an attorney."

On July 23, 2011 the Indiana Economic Digest reprinted from the New Castle Courier-Times this long story by Craig Mauger that begins:

KNIGHTSTOWN - The story of Knightstown Town Court has seen twists and turns this year. But the latest development may be its last.

Citing a "bleak" financial outlook, the Knightstown Town Council voted unanimously this week to close the town court at the end of the year.

On Friday, Henry County Prosecutor Kit Crane and the court's judge, Bart Whitesitt, called the decision surprising and unexpected.

"I was shocked," said Whitesitt.

The decision to close the court, which had been in operation since the 1950s, came about five months after former Knightstown Town Court Judge Hayden Butler mysteriously resigned from his position.

At the time of his resignation, Knightstown Town Court tried misdemeanors and infractions. The court was in session on Tuesday and Thursday nights and Saturday mornings. It served as a place where people with day jobs could attend court and not miss work.

After Butler resigned, the town council was forced to make a decision about how to move forward with the court. The council looked into increasing the pool of possible replacements for Butler by removing a restriction that the judge be a Knightstown resident. The council also considered a new requirement that the judge be a lawyer.

However, the Henry County Republican Party decided in February to replace Butler with Whitesitt, a Knightstown resident who's not a lawyer.

Today the Courier-Times has another story on the Knightstown Town Court. It is headed "Judge sues to save town court." Unfortunately, the entire paper is behind a paywall, so all we can read is the teaser:
In an attempt to save Knightstown Town Court, the court's judge has filed a lawsuit against the Town of Knightstown. The Town Council plans to close the court on Oct. 31. In the suit, Judge Bart Whitesitt and his attorney Tony Saunders allege that members of the town council violated state law when they voted to close the court this year....

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Indiana Courts

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

Updating this entry from earlier today, here is much more on yesterdays 7th Circuit oral argument in ACLU v. Alvarez. The story by Paul Meincke of WLS-TV Chicago begins:

September 13, 2011 (CHICAGO) (WLS) -- Should the average citizen be allowed to record conversations with police officers? That question is at the heart of a lawsuit filed against the eavesdropping law in Illinois.

The court challenge was filed by the American Civil Liberties Union.

It's argued that the Illinois eavesdropping act is the most restrictive in the country, and that today's technology has rendered it outdated.

Last month a 20-year-old woman was acquitted of charges that she illegally tape-recorded two Chicago police officers. That case is part of a larger dispute argued Tuesday before the 7th Circuit Court of Appeals.

If you were to walk up to a group of men in Daley Plaza with your iPhone rolling, you can legally take video of them, but if you record their conversation without their permission, that's a class four felony. If you were to attempt to record audio of a police officer in conversation without permission - even if it's on the public way - that's a class one felony, which has a punishment of up to 15 years in prison.

The ACLU argues that the Illinois Eavesdropping Act is antiquated and overly-restrictive, and it wants the ability to record audio of police officers when they're on the public way - most specifically as a means of monitoring how police handle marches and demonstrations.

"You can video the police officer, you can photograph the police officer. They admit that you can listen to the police officer, and even write down what the police officer is saying, but you can't turn on the audio button. It simply doesn't make any sense," said Harvey Grossman, ACLU.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Feds say Indiana's error rate for unemployment benefits worst in nation"

So reports Jon Murray of the IndyStar in this just-posted story that begins:

WASHINGTON – Indiana makes more errors than any state in handing out unemployment benefits and is one of six states the federal government says needs a “turnaround plan” to improve.

Indiana’s improper payment rate is 43.56 percent, according to an online map the U.S. Department of Labor launched to show every state’s performance.

The next worst performance was Louisiana’s 43.63 percent.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Indiana Government

Law - "The NCAA And The So-Called 'Student-Athlete'"

Frank Deford had this story this morning on NPR's Morning Edition. A quote:

Author Taylor Branch's article "The Shame of College Sports" in The Atlantic Monthly is "the most important article ever written about college sports," says Frank Deford.
DeFord's story concludes:
As Mr. Branch explains at length — as I have mentioned often before — all this may come crashing down, as lawsuits against the NCAA are finally approaching judgment. In the meantime, I commend to you this exceptional article entitled simply, "The Shame of College Sports" — which begins with the disgrace of the NCAA.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to General Law Related

Courts - Bad news for public access to court documents

Politico's Josh Gerstein reports today:

The basic fee federal courts charge for electronic copies of court records will be hiked by 25%, a panel overseeing federal court administration announced Tuesday.

The cost of electronic access to court files through the Public Access to Court Electronic Records program, better known as PACER, will rise to 10 cents per page from the current 8 cents per page, the Judicial Conference said.

D.C. Circuit Appeals Court Judge David Sentelle announced the move to reporters on Tuesday. In a press release, the courts said the price hike was a "response to inflationary pressures." Some other fees will also rise, but most filing fees will remain the same.

To cushion the blow, governmental entities will be exempt from the electronic access fees for three years and the courts' will refrain from billing those who run up less than $15 in a given quarter. Currently, a user can get $10-worth of access per quarter without paying.

This money adds up, just ask the ILB.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Courts in general

Courts - "We are seeing the [Wis. Supreme] court fall apart before our eyes," said Charles Geyh, a professor at Indiana University's Maurer School of Law

From Nathan Koppel of the WSJ, this long story today (which may be $$$). It begins:

Justices on the Wisconsin Supreme Court, which began a new term last week, are taking steps to address some of the worst infighting in the court's history.

The court, which resolves some of the thorniest civil and criminal disputes in the state, will likely hear at least 80 cases this term, including a free-speech challenge to a new law regulating campaign advertisements and a case examining whether a sex offender who claims to be homeless is excused from having to register his address with the state.

But many legal experts and court watchers now question whether the court will be able to conduct its business due to entrenched ideological and personality differences between justices that seem to grow wider by the week.

"We are seeing the court fall apart before our eyes," said Charles Geyh, a professor at Indiana University's Maurer School of Law. Partisan bickering and "interpersonal failures," he said, have decimated the court's reputation as one of the nation's elite state supreme courts.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Courts in general

Ind. Gov't. - "More details of state’s audit of Starke County treasurer released"

The ILB has five earlier entries on the summary removal from office of the Starke County Treasurer. Terry Turner reports today in the Gary Post Tribune:

KNOX — The final State Board of Accounts audit report of the Starke County Treasurer indicates treasurer Linda Belork may have lost thousands of dollars due to her own inexperience.

The state audit “noted several reporting errors that were undocumented, unexplained and could not be traced to verify their validity.

This included an undocumented posting in January 2010 for $523,619.” According to Starke County Commissioner Dan Bridegroom, “(The state auditor) could not find a documented trail for corrections and adjustments made in the treasurer’s records.”

Monthly, the treasurer is required to file a report of the financial condition of her office with the state, based on outstanding warrants and balances from bank statements. In the final four months of 2010, the variances at the end of the month were approximately $4.5, $5.2, $3.9 and $2.1 million dollars.

Starke County Council President Mark Smith said that due to the inconsistencies, the county is in danger of losing, and perhaps having to repay or no longer be eligible for, grants and other federal programs.

“We rely on grant funding to survive,” Bridegroom added.

The state auditor opinion indicated a lack of segregation of duties, no effective internal control over financial reporting, and that “effective internal control over financial reporting requires the County Commissioners to monitor and assess the quality of the county’s system of internal control.

The Commissioners have not performed either an ongoing or separate evaluation of their system of internal controls.”

Smith said once he saw the report in writing, he immediately instructed bank officials to freeze the county’s accounts until they could ensure that the treasurer’s office was under full the control of the county, and that funds being distributed, other than payroll checks, could have better internal controls on them.

He indicated that it was possible they might be held responsible if they did not take action.

Smith said originally there was a deficit of over $869,050, but after he asked the auditor to go over the records, they were able to reduce that amount to $21,000, and that if the audit is continued, those funds may also be accounted for. * * *

The removal of Belork is now in Starke Circuit Court, and Belork’s attorney has requested a change in venue.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Indiana Government

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

Updating this ILB entry from August 25th, the Chicago Sun-Times today has this report of remarks made by Judge Poser during the course of an oral argument yesterday in the case of ACLU v. Alvarez. The headline to today's story is "Judge casts doubt on ACLU challenge to law forbidding audio recording of cops ." Some quotes from the story by Natasha Korecki:

A senior appeals court judge said Tuesday that if Illinois’ eavesdropping law were expanded, gang bangers and “snooping” reporters would run rampant, secretly recording conversations unchecked.

“If you permit the audio recordings, they’ll be a lot more eavesdropping. … There’s going to be a lot of this snooping around by reporters and bloggers,” U.S. 7th Circuit Judge Richard Posner said. “Yes, it’s a bad thing. There is such a thing as privacy.”

Posner, considered one of the most influential jurists on the appeals panel, made his comments Tuesday morning as the Illinois American Civil Liberties Union argued to change current law to make it legal to audio record public officials in public areas.

Right now, it is legal to video record police officials in public areas but it is illegal to audio record them — or anyone else — without their consent, said Illinois ACLU Legal Director Harvey Grossman.

Grossman said the ACLU wants the federal court to issue an injunction preventing the Cook County State’s Attorney from “indicting us when we seek to record the activities and the speech of police officers in public.

Check out the rest of the story.

And the MP3 of the oral argument in ACLU v. Anita Alvarez is here.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Courts in general

Courts - "Federal Judicial Conference Urges Restraint In Sealing Civil Cases"

This entry in the Blog of Legal Times begins:

The policy-making body of the federal judiciary approved a new standard today that instructs judges to limit sealing entire civil cases to only extraordinary circumstances.

The Judicial Conference of the United States said the new policy emphasizes that sealing an entire case should be the last resort.

Judges should first explore narrower alternatives, such as blacking out information or sealing particular documents, the panel said.

Speaking on behalf of the 26-judge conference, Chief Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit told reporters this afternoon that “the court’s business is the people’s business.” Sentelle did not define an "extraordinary" circumstance.

Sentelle said there was no one case that prompted the adoption of the new policy on sealing. He said the issue had been “fermenting for awhile.” There was a general impression among conference members, he said, that federal judges were sealing entire cases too often.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Courts in general

Ind. Courts - Even more on "Richmond Republicans and Democrats joined forces Thursday seeking to halt a revised state law that would leave unopposed candidates off the ballot this fall"

Updating this ILB entry from Sept. 12, this from an editorial today in the Lafayette Journal Courier:

Looks as if Greater Lafayette candidates who, thanks to a silly new state law, will be left off the November ballots because they are unopposed aren't alone in thinking the new rules are a rip-off.

This week, two Richmond City Council candidates, a Democrat and a Republican, and a pair of voters in Wayne County won an injunction after claiming the law is unconstitutional. A judge in that eastern Indiana county ordered election officials there to put the unopposed names on the Nov. 8 ballot.

In Lake County in northwest Indiana, election officials skipped the legal route and just announced they'd put all names, opposed or unopposed, on the ballot.

There are high-minded reasons, as laid out in the Wayne County lawsuit, for wanting all names on the ballot.

The effort by the state to save money when it comes to printing ballots, the plaintiffs claim, winds up being unconstitutional. According to the Richmond Palladium-Item, the suit alleged that the election commission's interpretation of the law restrains the free speech rights of the unopposed candidates, disenfranchises voters by restricting their right "to vote for a candidate or not vote for such candidate" and contradicts the constitutional requirement that "all elections by the people shall be by ballot."

The pragmatic reasons - which boil down to how campaigns are run - aren't mentioned, but are every bit as important.

The General Assembly claimed cost savings with the new law. Really, how much could it possibly cost in places, such as Tippecanoe and Wayne counties, that have electronic balloting?

The Statehouse has this one all backward. A simple interpretation by the election commission saying that counties could choose to leave unopposed candidates off the ballots would solve the problem. It shouldn't take a ruling from a judge or the actions of a rebellious county election board to figure that one out.

It's also time for the Tippecanoe County Election Board to consider its own bit of civil disobedience and put names of unopposed candidates on the Lafayette and West Lafayette ballots in November.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Indiana Courts | Indiana Government | Indiana Law

Ind. Gov't. - "New liability law, DNR program combine to help landowners experiencing deer damage"

Some quotes from a Sept. 13 release from the Indiana Department of Natural Resources, Division of Fish & Wildlife:

A new landowner liability law combined with the DNR’s Hunters Helping Farmers program can help landowners experiencing deer damage to crops, forest regeneration or landscaping get deer populations under control on their property.

The DNR has liberalized hunting regulations in most counties to address deer populations by strategically targeting antlerless deer, but effectiveness depends on landowner participation because 94 percent of the state is in private ownership.

In the Hunters Helping Farmers program, each DNR district wildlife biologist maintains a county-by-county list of hunters who are looking for places to hunt and willing to harvest antlerless deer during the hunting seasons. Landowners having difficulty finding hunters for this purpose may contact the DNR district biologist in their area for a copy. * * *

The Indiana General Assembly took steps this year to protect landowners from liability associated with allowing sportsmen and sportswomen to recreate on their land. Indiana Code 34-31-9 was created to limit liability associated with agritourism related activities such as field days, self-pick farmers, corn mazes, animal exhibitions, and agricultural fairs, but also includes natural resource based activities such as hunting, fishing, hiking and trail riding.

The law, which went into effect July 1, states that landowners who provide access to their land for natural resource based activities is not liable for the injury or death of a participant resulting from the inherent risks of such activities. Also, a participant or the participant’s representative cannot make claim, maintain an action against, or recover from the landowner any loss, damage, or death resulting from the inherent risk of the natural resource based activity.

Inherent risks include conditions, dangers, or hazards that are an integral part of the activity, including surface and subsurface conditions and natural conditions of the land, vegetation and waters, the behavior of wild or domestic animals on the land, the ordinary dangers of structures or equipment on the land, and negligent acts of a participant that may contribute to the injury of that participant or others.

However, the law does not prevent or limit the liability of a landowner who has knowledge of a dangerous condition that exists on the land and does not make the danger known to the participant, who commits and act or omission that constitutes willful or wanton disregard for the safety of the participant, or who intentionally injures the participant.

The new law also protects landowners who charge a participant a fee for providing natural resources based activities, as long as they provide the participant with a specific warning notice specified by the law. The warning notice can be printed on a sign, posted and maintained in a clearly visible location at the main entrance to the property where the natural resources based activity is to occur, or included as part of a signed release or written contract between the landowner and the participant. The actual language of the new law can be found here.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Indiana Government

Courts - "Stenographer sues Pa. lawyer over transcript claim"

From the AP yesterday, a story that begins:

WASHINGTON, Pa. (AP) — A court stenographer has sued a western Pennsylvania attorney who has claimed the stenographer altered transcripts in a murder case the attorney is appealing.
See also this from the ABA Blog.

As noted in this July 8, 2011 ILB entry:

The ILB has been compiling stories about lost or unfinished court transcripts (or in one case, "taken") for years.
This seems to add a new twist.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Courts in general

Ind. Gov't. - "Complaint Filed Against City of Jasper"

From WITZ AM/FM:

September 12, 2011 - A complaint has been filed against the City of Jasper again in as many months.

Sources tell WITZ news that a complaint was filed with the Office of the Indiana Public Access Counselor in Indianapolis on Thursday last week concerning an alleged violation of the Open Door Law by the City of Jasper.

The petitioner is identified in the complaint as Michelle Reller of Huntingburg. Reller attended the public vote of the Utility Service Board and the Jasper City Council on Friday, August 5th but found that there were no handicapped parking spots available near to the Jasper City Hall as Strassenfest was in progress, and Reller stated that the designated handicapped parking spaces were still occupied by city employees who had not yet left for the day. She stated in her complaint that she had to park in the lot at the Becher Kluesner Downtown Chapel.

Reller says she has pulmonary hypertension and has difficulty breathing if she has to walk any distance at all. She states “My issue is with Indiana Code 5-14-5 ‘accessibility to individuals with disabilities,’ section ‘d’: ‘a public agency may not hold a meeting at a location that is not accessible to an individual with [a] disability.” She concludes by saying “I feel that this is a clear cut violation of this law…there should have been spaces open on the square or the meeting should have been changed to accommodate those with disabilities.”

This complaint follows lawsuit filed by Healthy Dubois County also on August 5th that accuses the City of Jasper and the Utility Service Board of violations of Indiana’s Open Door laws concerning public meetings.

That lawsuit is on hold until a new judge can be appointed to hear the complaint and make a ruling on whether the City of Jasper can move forward with the lease agreement between the City and Jasper Clean Energy LLC to convert the Jasper Power Plant to burn Miscanthus grass and natural gas as fuel sources to generate electricity.

Posted by Marcia Oddi on Wednesday, September 14, 2011
Posted to Indiana Government

Tuesday, September 13, 2011

Ind. Decisions - Transfer list for week ending September 9, 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 September 9, 2011. It is two pages (and 27 cases) long.

Four transfers were granted on Sept. 9:

DETAILS TO FOLLOW

Posted by Marcia Oddi on Tuesday, September 13, 2011
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

Gary R. Shepherd v. Linda S. (Shepherd) Tackett

Charles David Kelly v. National Attorneys Title Assurance Fund

Mauel Gaeta; Roche Surety & Casualty v. State of Indiana

Zachariah D. Reese v. State of Indiana

Yasin Hory v. State of Indiana

NFP civil opinions today (3):

Joseph N. Meade v. Kathleen F. Meade (NFP)

Janice A. Devlin and Kenneth F. Devlin v. AC Roofing, Inc. and Arnold W. Cook (NFP)

Indiana State Board of Dentistry v. Julia Francis (NFP)

NFP criminal opinions today (5):

Robert A. Predaina v. State of Indiana (NFP)

Shannon Saddler v. State of Indiana (NFP)

Jerry Craig v. State of Indiana (NFP)

Ross Pushor v. State of Indiana (NFP)

James E. Sims v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 13, 2011
Posted to Ind. App.Ct. Decisions

Law - "Student Loan Default Rates Rise Sharply in Past Year"

Tamar Lewin has this report today in the NY Times. Some quotes:

Although for-profit colleges, which typically serve low-income students, enroll only about 10 percent of the nation’s undergraduates, Mr. Kvaal said, their students made up 150,000, or almost half, of the defaults.

The problem may be even greater. “Some research has shown that as few as one in five defaults at a for-profit college occur in the two-year window,” said Debbie Cochrane, program director at the Institute for College Access & Success, which runs the Project on Student Debt. “The extent of borrower distress is barely touched upon with these rates.” * * *

The high default rate at for-profit colleges, the fastest-growing sector of higher education, has become an increasing concern for the government, since such institutions depend on federal student aid for more than 80 percent of their revenues. Last spring, in internal documents gathered from the publicly traded for-profit colleges for hearings on the student debt problem, the Senate Health Education Labor and Pensions Committee found that some companies estimated that their students had staggeringly high lifetime default rates — in one case, 77.7 percent.

Colleges with excessive default rates, either exceeding 40 percent in the latest year, or 25 percent for three consecutive years, can lose their eligibility for federal student aid programs. This year, five institutions — four of them for-profits — lost eligibility, Mr. Kvaal said.

Here is something I didn't know:
Many borrowers, even those who are unemployed or earning little, can avoid default by participating in an income-based repayment program that began in 2009 but is not as widely used as might be expected. Under the program, borrowers who pay 15 percent of their discretionary income for 25 years — 10 years if they are in public service — can have the rest of their federal student loan debt forgiven; in 2014, that will go down to paying 10 percent of discretionary income for 20 years.

“In the age of income-based repayment, there is no reason for a student to default, since even a payment of zero dollars is acceptable payment, if you have zero discretionary income,” Ms. Cochrane said. “But as of April of this year, only about 350,000 borrowers have entered income-based payment, a small subset of the eligible population. Students need to understand the options, colleges need to share the information, and the department needs to make it as easy as possible for students to enroll.”

Posted by Marcia Oddi on Tuesday, September 13, 2011
Posted to General Law Related

Ind. Decisions - "Couple will both go to jail after woman’s outburst following man’s sentencing"

James D. Wolf Jr. reports in the Gary Post-Tribune in a story that begins:

VALPARAISO — The DeMotte man who broke a Porter County Sheriff officer’s ankle during an arrest received an eight-year sentence Monday, and his girlfriend received a 30-day sentence for verbally attacking the officer during court proceedings.

It came out of an August 2009 incident with a vehicle out of gas in the middle of the road and a $125 tow fee.

Judge Roger Bradford sentenced Elliot J. Tailford, 27, to the highest amount of time possible under the two Class C felonies that Tailford pleaded to.

He’ll receive no probation or home detention, which defense attorney Matt Soliday argued for.

After Tailford was sentenced, Megan Laney, 22, stood up, went across the spectators’ aisle and began shouting as she leaned over to Porter County Sheriff’s Officer Roger Bowles.

“You (expletive deleted) piece of (expletive deleted). You ruined his life. I hope you rot in hell,” Laney shouted, then left the courtroom.

Bradford said to security officers, “Bring her back. She can join him.”

He ordered her held in Porter County Jail for contempt of court, and when she appeared to protest, he said, “You want more than that, keep it up.”

Posted by Marcia Oddi on Tuesday, September 13, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Monday's arrests came as the result of a grand jury inquiry in Union Circuit Court on Thursday and Friday. No other county officials were charged."

Updating this ILB entry from Sept. 8th headed "Grand jury inquiry begins today into case of Union County employees," today's Richmond Pal-Item has a long story by Pam Tharp headed "Two Union County workers arrested: Highway supervisor, employee accused of ghost employment." A quote:

Monday's arrests came as the result of a grand jury inquiry in Union Circuit Court on Thursday and Friday. No other county officials were charged.

Special Prosecutor Melvin Wilhelm of Franklin County asked for the grand jury following an investigation by the Indiana State Police into allegations of ghost employment at the county highway department.

Wilhelm became special prosecutor in the case after the Indiana State Board of Accounts forwarded Union County's 2008-2009 audit to Union County Prosecutor Ronald Jordan for possible criminal charges. Jordan recused himself from the case because it involved county officials.

The audit alleged Hartman used a county highway truck to transport a trailer and skid loader for her personal use at her private residence on Kitchel Road. It also alleged Crowder worked on Hartman's home while he was on the county's payroll, after Crowder allegedly told the county building inspector he had taken the day off to work on the home. The audit said payroll records showed Crowder was paid for the day.

Posted by Marcia Oddi on Tuesday, September 13, 2011
Posted to Indiana Government

Monday, September 12, 2011

Ind. Courts - Still more on "Richmond Republicans and Democrats joined forces Thursday seeking to halt a revised state law that would leave unopposed candidates off the ballot this fall"

Updating this ILB entry from Sept. 4th, Bill Engle reports today on the Richmond Pal-Item website:

The names of unopposed candidates will appear on election ballots in Richmond this fall following a decision today by a Wayne County judge.

Wayne Superior Court No. 2 Judge Gregory Horn this morning granted an injunction stopping Wayne County Clerk Jo Ann Stewart from omitting the names of unopposed candidates from local ballots in the Nov. 8 election.

The injunction was filed in Wayne County last week in opposition to a new state law that orders county clerks to omit names of unopposed candidates in municipal elections. The Indiana Legislature passed the new law this year in an effort to save money in local elections. * * *

Horn also ruled that the plaintiffs -- the Wayne County Republican and Democratic parties, candidates Kelley Cruse-Nicholson and Clay Miller and voters Kaarin Lueck and Barbara Mays -- must put up $10,000 in security for payment of costs or damages incurred by any party because of the change.

Indiana Deputy Attorney General Andrew Glick said he had not seen the decision this morning and declined to say whether his office would appeal.

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Ind. Trial Ct. Decisions

Courts - "More bullying cases have parents turning to courts" [Updated]

That is the headline to this long story in USA TODAY, reported by Natalie DiBlasio.

The WSJ Law Blog cites the article in this entry by Nathan Koppel, headed "Back Off: Bullying Litigation on the Rise."

[Updated 9/13/11] On the front page of today's NY Times, a long story by Erik Eckholm headlined "In Suburb, Battle Goes Public on Bullying of Gay Students."

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Courts in general

Ind. Decisions - A word to the wise ...

Here are some quotes from Harmeyer v. State Bd. of Law Examiners, a 2-page order filed today, written by CJ Shepard with all justices concurring:

On June 12, 1992, Ronald Harmeyer was admitted to practice law in Indiana after successfully passing the Indiana Bar Examination and being found otherwise eligible for admission. In 1996, Harmeyer was admitted to practice law in Wisconsin after successfully passing the Wisconsin bar examination. Believing he would never return to practice law in Indiana, in late 2008 Harmeyer submitted an "Affidavit of Permanent Withdrawal from the Practice of Law" to the Executive Secretary of the Indiana Supreme Court Disciplinary Commission pursuant to Indiana Admission and Discipline Rule 2(1) (West 2008). His affidavit stated in relevant part:
I understand that by permanently relinquishing my Indiana law license, I am not eligible for reinstatement of that license in the future except upon making a new application for admission to the bar of the State of Indiana and complying with the requirements for admission under Indiana Admission and Discipline Rule 3 through 21 .
Mr. Harmeyer changed his mind in 2011. But the Supreme Court today finds he did follow the proper procedure in contesting the statement of "an employee of the Indiana Board of Law Examiners" and continues:
We further observe that even if Harmeyer's Petition had been submitted to us following a "final determination" of the BLE, we likely would have denied the Petition. Harmeyer's "Affidavit of Permanent Withdrawal from the Practice of Law in Indiana," as well as Admission and Discipline Rule 2(1) upon which the affidavit's language was based, clearly and unambiguously informed Harmeyer that if he permanently relinquished his Indiana law license, then he would not be eligible for reinstatement except upon making a new application for admission and complying with the requirements for admission set forth in Admission and Discipline Rules 3 through 21. Those requirements include, but are not limited to, successfully passing the bar examination, see Admis. Disc. R. 17, if the attorney cannot secure a provisional license or a business counsel license under Admission and Discipline Rule 6.

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court denies a transfer petition with a rare published dissent

In Smith v. Euler, an order filed today, the Supreme Court denies transfer by a 3-2 vote.

A search of the ILB turned up nearly 20 entries involving "Eric D. Smith" and the COA.

The 2-page dissent to the one-page order is written by J. Sullivan, and J. Dickson concurs. The dissent begins:

Mr. Smith is a frequent litigant. I have written in another case of the deleterious effects on the administration of justice of such litigiousness. Smith v. Ind. Dep’t of Corr., 883 N.E.2d 802, 811-12 (Ind. 2008) (Sullivan, J., dissenting). But as that very case reminds us, Mr. Smith does possess certain constitutional rights, one of which – the “absolute right to one appeal” provided by Article 7, Section 6, of the Indiana Constitution – has in my view been violated here.

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Children to testify by closed-circuit TV in molest trial"

Mark Wilson has the story today in the Evansville Courier & Press. Some quotes:

Two children won't have to directly face the woman accused of molesting and abusing them when they testify in her trial Wednesday.

Instead, the children will testify by closed circuit television. Vanderbugh County Deputy Prosecutor Mike Perry said it is the first time such a procedure will be used in the county. * * *

Indiana law allows use of closed circuit television for testimony from alleged victims in certain cases if the witness see the person accused and the person accused can see and hear the person testifying.

In a Sept. 6 order, Vanderburgh Circuit Court Magistrate Kelli Fink ruled that requiring them to testify in the woman's physical presence "would create a substantial likelihood of emotional and mental harm to these people."

A foster parent of both girls testified in a hearing last month that the girls reacted with fear and anger when the woman was mentioned and that one of the girls believed she may not be safe from her, according to court records.

In addition, a counselor working with the children said that "testifying in front of (her) would be very damaging to these children and that the children could be retraumatized and become extremely fearful."

She testified that was more likely to happen if they were in the same room than if they were testifying by camera from a different room.

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Indiana Courts

Ind. Gov't. - More on current Secretary of State Charlie White [Updated]

As readers may recall, acting as his own lawyer, Mr. White filed a motion to transfer the appeal of the decision by the recount commission to the Indiana Supreme Court. See August 31st entry headed "Jim Bopp Quits the Charlie White Case."

Here is a link to today's Order of the Indiana Supreme Court in Charlie White, et al. v. Indiana Democratic Party, dismissing Mr. White's request for transfer on the grounds that his request was "procedurally improper." A quote:

White's request for transfer is procedurally ilnproper. Appellate Rule 56(A) provides that the Supreme Court Inay "accept jurisdiction over an appeal that would otherwise be within the jurisdiction of the Court of Appeals upon a showing that the appeal involves a substantial question of law of great public itnportance and that an emergency exists requiring a speedy determination." (Emphasis added.) Assuming that White accurately describes the procedural history as set out above, jurisdiction over the IDP's petition · for judicial review is with the Marion Circuit Court. White does not allege that the Marion Circuit Court has entered a final judgment on that petition, and he does not seek transfer of an appeal that would otherwise be within the jurisdiction of the Court of Appeals.

Accordingly, the Supreme Court DISMISSES White's Emergency Verified Motion.

[Updated at 8:25 pm] See this post from Doug Masson's blog. A quote:
By way of explanation, the Supreme Court said that App. R. 56(A) only gives him the right to skip the Court of Appeals (assuming, for the sake of argument, that the prerequisites for that rule are present). It does not give a party the right to skip the trial court. This matter has been heard by the Indiana Recount Commission. The commission’s decision is subject to review by a trial court; in this case the Circuit Court of Marion County.

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Indiana Government

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

In Arnett v. Webster (SD Ind., Lawrence), A 36-page opinion, Judge Tinder writes:

Kevin Arnett, a former prisoner at the Bureau of Prisons Federal Correctional Complex in Terre Haute, Indiana, brought this Bivens action, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for cruel and unusual punishment under the Eighth Amendment against a number of prison officials for violations he alleged occurred during his ten month stay there. When Arnett arrived at the Terre Haute facility in November 2006, he was seen by Thomas Webster, M.D., prison clinical director. Arnett informed Dr. Webster that he had rheumatoid arthritis (RA), a severe and debilitating form of arthritis which is progressive and causes painful inflammation of the joints and surrounding tissues, and asked for Enbrel (etanercept), a medication Arnett had been taking before arriving at the prison that had been successful in controlling his condition.

Because Enbrel wasn’t on the prison’s approved formulary, prison medical personnel had to seek prior approval to prescribe the medication by submitting a nonformulary drug authorization request to the Central Office of the Bureau of Prisons in Washington, D.C. (BOP) Dr. Webster submitted a request for Arnett to receive Gabapentin, used to treat nerve pain, but not Enbrel, and also submitted approval for a consultation with an outside rheumatologist. W. Eric Wilson, M.D., staff physician at Terre Haute, became Arnett’s primary care physician on December 28, 2006. An outside rheumatologist examined Arnett in February 2007, and it can be inferred that he directed Dr. Wilson to place Arnett back on Enbrel. Despite the rheumatologist’s instruction and Arnett’s repeated pleas for the medication and complaints of continued pain and swelling, he didn’t receive Enbrel until October 5, 2007, eleven days before he was transferred from the facility to a halfway house. Arnett was told by the defendants during the more than ten months he waited for the drug that the non-formulary request had been submitted, they were waiting for a response from the BOP, and were otherwise “working on it.” In the meantime, Arnett was prescribed pain medicine, but nothing to treat the inflammation and deterioration of his joints.

Because Arnett sought leave to proceed in forma pauperis, the district court screened his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and in so doing, dismissed all the defendants, except Dr. Webster, on the basis that Arnett failed to state a claim upon which relief could be granted. (Shortly after screening, Arnett’s case was transferred from Judge Richard L. Young to Judge William T. Lawrence.) Dr. Webster then filed a summary judgment motion and the district court granted that motion. The district court entered judgment, directing that plaintiff take nothing by his complaint. Arnett appeals both rulings and we affirm in part and reverse in part. We affirm dismissal of the non-medical defendants on the pleadings, but find that Arnett properly stated a claim against the medical defendants. We, however, affirm the district court’s grant of summary judgment in favor of Dr. Webster because Arnett failed to meet his burden to submit evidence upon which a reasonable jury could find that Dr. Webster acted with deliberate indifference.

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Lawsuit filed challenging a labor provision of this year's budget bill on constitutional grounds

On August 31, AFSCME Council 62 filed a lawsuit challenging two chapters of the budget and appropriations bill (HEA 1001) passed this year. According to a release:

These two chapters make significant changes to State labor policy affecting labor organizations which represent State workers. The case has been assigned to Superior Court #1.
The case is AFSCME v. Daniels. Here is the 9-page complaint. It begins:
1. This is a lawsuit for declaratory and preliminary and permanent injunctive relief challenging the constitutionality of certain provisions of House Enrolled Act No. 1001, P.L. 229-2011, (hereinafter "HEA 1001"), the budget bill, which became effective July 1, 2011. HEA 1011 was passed during the 2011 regular session of the Indiana General Assembly and signed into law by Governor Mitch Daniels on April 30, 2011. The overarching purpose of HEA 1001, which consists of approximately 294 pages, is to make appropriations for the biennium beginning July 1,2011 and ending June 30, 2013.

2. Included in those 294 pages is Section 57, found at pages 128 and 129, which is unrelated and not properly connected to the subject ofHEA 1001. That section, among other things, prohibits future governors from issuing executive orders reinstating procedures allowing union representational rights, granting recognition oflabor organizations representing State employees employed by the Executive department, and discussing with those labor organizations wages, hours and working conditions for State employees, rights they previously enjoyed under previous executive orders signed by former Govs. Evan Bayh, Frank O'Bannon and Joe Kernan,which remaIned in effect from 1989 until 2005 when Gov. Daniels signed Executive Order 05-14 repealing them.

3. In addition, HEA 1001 also addresses in Section 56 another unrelated matter not properly connected to the subject of HEA 1001, consisting of multiple changes to the State's civil service system, codified at I.C. §§ 4-15-2.2. Those changes are found at pages 116 to 128 ofHEA 1001.

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Indiana Courts

Ind. Decisions - More on: Upcoming oral arguments this week and next

Updating this ILB entry from this morning, the ILB has just learned that an oral argument still shown (as of this posting) on the Supreme Court's public calendars as taking place this Thursday (Richard S. Emmons v. State of Indiana) actually was vacated Sept. 6th, and another oral argument has been scheduled in its place. From today's docket:

9/06/11
BEING DULY ADVISED, THE MOTION TO DISMISS IS GRANTED.
THE COURT OF APPEALS DECISION REMAINS VACATED. THE ORDER SETTING THIS CASE FOR ORAL ARGUMENT ON SEPTEMBER 15, 2011 IS VACATED.
THIS APPEAL IS AT AN END.

RANDALL T. SHEPARD, CHIEF JUSTICE
ALL JUSTICES CONCUR.

The ILB does not know what the new case is.

[More] The new case is Rebecca Kays v. State.

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Upcoming Oral Arguments

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

For publication opinions today (1):

In Katherine Farley and James Paul v. Hammond Sanitary District , an 18-page, 2-1 opinion, Sr. Judge Barteau writes:

Plaintiffs-Appellants Katherine Farley and James Paul, on behalf of themselves and all others similarly situated (collectively, “Farley and Paul”), appeal the trial court’s grant of summary judgment to Defendant-Appellee Hammond Sanitary District (“HSD”). We affirm in part, reverse in part, and remand.

Farley and Paul raise three issues, which we restate as: I. Whether the trial court abused its discretion by striking portions of an expert witness’ affidavit that Farley and Paul submitted in opposition to HSD’s Amended Motion for Summary Judgment. II. Whether the trial court erred by granting summary judgment to HSD on Farley and Paul’s tort claims.III. Whether the trial court erred by granting summary judgment to HSD on Farley and Paul’s individual claims for unconstitutional taking of personal property. * * *

BROWN, J., concurs.
VAIDIK, J., dissents with separate opinion. [that begins, at p. 15 of 18, and that concludes] To make out a claim of negligent maintenance, the plaintiffs must establish that HSD breached an existing standard of care and that the breach proximately caused them injury. Williams may be qualified to testify that HSD breached a duty to properly maintain its non-scouring sewer lines. But without evidence of resulting obstructions at the plaintiffs’ households, Williams’ opinion that HSD’s negligence caused the plaintiffs’ flooding becomes nothing more than speculation. And with no competent evidence of causation in the record, the non-scouring sewer plaintiffs are unable to sustain a prima facie negligence claim. Accordingly, I believe there remains no genuine issue of material of fact and the defendants are entitled to judgment as a matter of law.

For these reasons I respectfully dissent and would affirm summary judgment in favor of the defense.

NFP civil opinions today (1):

Maria Lopez Garcia v. Agile Resources Inc. (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - Tomorrow: Judith Kaye, Former Chief Judge of the State of New York

From a notice at IndyLaw.com:

Tuesday, September 13, 2011

James P. White Lecture on Legal Education

A Chief Judge's After-Life: Reflections on Educating Lawyers Today

Speaker: Judith Kaye, Former Chief Judge of the State of New York

Time: 5:00 p.m. - 6:00 p.m.

Location: Wynne Courtroom (Room 100), Inlow Hall, 530 West New York Street, Indianapolis

Contact: Shari Baldwin (ssbaldwi@iupui.edu or 317-274-8036)

The first woman to serve as Chief Judge of the State of New York, Judith Kaye, will deliver the James P. White Lecture on Legal Education on Tuesday, September 13, 2011 in the Wynne Courtroom (Room 100) at 5:00 p.m. 1.0 CLE credit available.

If you wish to attend, please call 317-278-3400, leaving your name and phone number.

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Indiana Law

Courts - "Court Case Asks if ‘Big Brother’ Is Spelled GPS"

Adam Liptak writes today in the NY Times about the upcoming SCOTUS case, U.S. v. Jones. (The ILB has a long list of entries on GPS issues.) Liptak's column begins:

In a series of rulings on the use of satellites and cellphones to track criminal suspects, judges around the country have been citing George Orwell’s “1984” to sound an alarm. They say the Fourth Amendment’s promise of protection from government invasion of privacy is in danger of being replaced by the futuristic surveillance state Orwell described.

In April, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last.”

Last month, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn turned down a government request for 113 days of location data from cellphone towers, citing “Orwellian intrusion” and saying the courts must “begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

The Supreme Court is about to do just that. In November, it will hear arguments in United States v. Jones, No. 10-1259, the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?

Their answer will bring Fourth Amendment law into the digital age, addressing how its 18th-century prohibition of “unreasonable searches and seizures” applies to a world in which people’s movements are continuously recorded by devices in their cars, pockets and purses, by toll plazas and by transit systems.

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Courts in general

Ind. Decisions - "Medical liability litigant can't sue separately for lost medical records"

Citing the August 10th Indiana Supreme Court decision in Howard Regional Health System, et al. v. Jacob Gordon, et al. (ILB summary here), Amy Lynn Sorrel reports today in a long story in the AMA News that begins:

An Indiana Supreme Court ruling protects physicians and hospitals from additional liability for lost medical records.

Health records maintenance is considered the practice of medicine, and plaintiffs suing for medical negligence cannot bring a separate action over the loss of the documents, the high court said in an Aug. 10 opinion. Such claims would be considered with the liability lawsuit.

The ruling was sparked by a medical negligence lawsuit Lisa Gordon filed against Howard Regional Health System in Kokomo, Ind., and two physicians after her son, Jacob, experienced neurological disorders after his emergency cesarean birth in 1999. Gordon sought separate damages against the hospital for losing certain medical records related to her son's care, alleging that the loss of evidence made it impossible for her to pursue a liability case against Jacob's obstetrician.

But the court concluded that such claims fall under the state's Medical Malpractice Act, which requires a plaintiff to first submit the merits of a case to a medical review panel before the case can go forward.

"The Gordons rightly acknowledge how important health care records are for the nature and quality of the health care provided," Chief Justice Randall T. Shepard wrote. "Surely the skillful, accurate and ongoing maintenance of test and treatment records bears strongly on subsequent treatment and diagnosis of patients. It is a part of what patients expect from health care providers."

The decision is significant, because it shields Indiana physicians from excess liability for the loss of medical records. It also ensures that those covered by a medical liability insurance pool established under the Malpractice Act will retain the protection of the state's damages limit in the event of such claims, said Bryan H. Babb, of Indianapolis, an attorney who represented the hospital and doctors in the case.

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Still more on: Homeowners' Lose Sewer Suit Against City

Updating this ILB entry from Sept. 10, 2011, SCOTUSblog has listed the pending cert petition in Armour v. Indianapolis in its list of "Petitions We're Watching." It is a little less than halfway down the page. It was a "Petition of the Day" on August 31st.

Here is the SCOTUSblog case page.

Posted by Marcia Oddi on Monday, September 12, 2011
Posted to Ind. Sup.Ct. Decisions

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

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

From Sunday, September 11th, 2011:

From Saturday, September 10, 2011:

From late Friday afternoon, September 9, 2011:

Posted by Marcia Oddi on Monday, September 12, 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 9/11/11):

Thursday, September 15th

Next week's oral arguments before the Supreme Court (week of 9/18/11):

Monday, September 19th

Webcasts of Supreme Court oral arguments are available here.



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

Wednesday, September 14th

Next week's oral arguments before the Court of Appeals (week of 9/18/11):

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, September 12, 2011
Posted to Upcoming Oral Arguments

Sunday, September 11, 2011

Ind. Courts - "Appeal Filed On Big Long Lake Pier Ruling"

From WLKI, Friday, September 9th, 2011:

(LAGRANGE) - A group of lake front property owners has petitioned the Department of Natural Resources to review its recent approval of three large piers at Big Long Lake. The petitioners are seeking a stay of the pier permits and for an administrative review of the case.

Last month the D-N-R approved a 106 foot pier sought by Steven Ybarra of Fort Wayne, a 70 foot pier sought by Mark Lorntz of Orland and a 100 foot pier sought by Jeff and Holly Spaw of Avilla. The piers combine the lake frontage rights of several back lot owners.

In their petition, the front lot owners argue that the D-N-R goes against Indiana Common Law, the AOPA Committee and the plat of Long Lake Park. They also argue the permit is contrary to DNR regulations and poses a safety risk, and that the backlot owners attempted to subvert the group pier permitting process of D-N-R Regulations.

They also argue that the permit is inconsistent with a LaGrange Circuit Court order that lot owners are "co-tenants" of the Indian Trail along the water’s edge.

The dispute at Long Lake Park has stretched on for about five years. Front lot owners are also appealing a decision in LaGrange Circuit Court.

Posted by Marcia Oddi on Sunday, September 11, 2011
Posted to Indiana Courts

Ind. Gov't. - "Clark drainage board to revisit ordinance"

Braden Lammers reported yesterday in the Jeffersonville News & Tribune:

The Clark County Drainage Board may amend a policy concerning drainage plans for builders.

Several issues have been raised by John and Charlotte Nicholson, who live adjacent to Forrest Hills Subdivision, the most recent being that a retention basin that handles the drainage of the subdivision is undersized.

“I think it’s not unreasonable for the board to ask the developer to provide us with an as-built drawing of that so [we] can verify that it is sized according to the plan,” said Clark County Surveyor David Blankenbeker, referring to the retention basin. “What we don’t know, was it built according to plan? The plans might show it one way, but built another.”

Drainage Board Engineer Brian Dixon also presented an issue brought before the board by Billy Hughes, of Henryville, that concerned drainage construction by a builder.

A catch basin near Hughes’ home is collapsing, and a drainage pipe attached to the catch basin may be causing his home to flood. The issue involving the builder is that the pipe was not properly placed in an easement where the county could address the problem. Dixon said county can address the catch basin, but cannot address the drainage pipe because it is on private property.

Greg Fifer, attorney for the drainage board, explained that the board often does not have jurisdiction over drainage issues, because they are often on private property and therefore limited to the purview of the individual property owners.

Blankenbeker suggested amending the drainage ordinance to have the developers provide the as-built plans — which are approved by the Clark County Building, Planning and Zoning Commission — to ensure when construction is completed that what was built matches the approved plan.

“Now that building is very slow, it might be a good time to kind of get some plan together to implement that,” said Drainage Board President Les Young.

Posted by Marcia Oddi on Sunday, September 11, 2011
Posted to Indiana Government

Ind. Gov't. - "Attorney General Greg Zoeller is arguably Indiana’s second most-powerful elected figure"

That is the caption to a photo of the AG that accompanies this long, balanced story today in the Fort Wayne Journal Gazette, authored by Tracy Warner, editorial page editor. The story, headlined "Big cases put state’s attorney general in spotlight," begins:

Take a conservative lawyer well acquainted with politics, the law and administering a government agency.

Add a political atmosphere in which Republican state lawmakers are more than willing to push a long-suppressed conservative agenda, even if it stretches previously accepted limits of state government’s power.

Mix in a successful – and desirable – public relations effort to keep Hoosiers informed about what their attorney general is doing.

The final touch: A likable personality with a sense of humor and just a slight southern Indiana drawl – the epitome of the kind of person you would vote for because he’s the candidate you’d want to have a beer with.

The result is an Indiana attorney general who has become not only one of the most visible and active in the state’s history but perhaps the state’s most important official after the governor.

ILB: One of the biggest reasons for the power is that although the office of attorney general in Indiana is not a constitutional office, it is a separately elected office. As such, the office has a great deal of independence from the three traditional branches of government. The office is in a position to play a decision-making and policymaking position in many important issues. And legislation enacted in recent years has quietly expanded its authority.

Posted by Marcia Oddi on Sunday, September 11, 2011
Posted to Indiana Government

Law - Estate tax issues has turned out to be terribly complex for some

This Dec. 17, 2010 column by Paul Sullivan of the NY Times was headed "Law - "Estate Tax Will Return Next Year, but Few Will Pay It"." But this long column yesterday by Mr. Sullivan was headed "In Agreement on Estate Taxes, Even More Complications." Some quotes:

FROM a tax perspective, dying last year seemed a simple proposition for the wealthiest people in America: their assets would pass to their heirs free of federal estate tax because the tax had lapsed.

But for some of these estates, the tax issue has turned out to be incredibly complex.

The reason is the terms of the agreement reached last December by President Obama and Congressional Republicans. The two sides agreed that the estate tax for 2011 and 2012 would exempt the first $5 million in assets per person and that any assets above that would be subject to a 35 percent tax rate. (Had they not reached that agreement, the exemption this year was set to be $1 million and a 55 percent tax rate.)

But instead of trying to impose the tax retroactively on the assets of people who died in 2010, the agreement allowed executors to make a choice: they could file an estate tax return under the new law or they could opt out. But in opting out, the people who received the assets would have to pay a different set of taxes when they sold those assets.

And the deadline for making that choice is coming up soon — Nov. 15. * * *

And that doesn’t even count the second problem. With only 10 weeks left to decide what to do, the one tax form needed to opt out of the estate tax, No. 8939, has not been issued yet by the Internal Revenue Service.

Posted by Marcia Oddi on Sunday, September 11, 2011
Posted to General Law Related

Saturday, September 10, 2011

Stage Collapse - The 1963 Coliseum Explosion, the end of sovereign immunity, and the enactment of the tort claims statute -- Part I

Nearly 50 years ago, on Halloween night, October 31, 1963, a massive explosion rocked the State Fair Fair Coliseum in the midst of a widely-attended Holiday on Ice show. There was much injury and death. It took years for the Indianapolis community to recover. Still today it is not uncommon to meet people who were directly touched by this tragedy. It happened to me this week at Central Library; the woman who retrieved the library clipping file on the incident told me, "I was there that night, with my mother. We left early."

But it was much more difficult than I had expected to put together any sort of outline of the legal process that was used to deal with the claims. With the exception of an engineering investigation, I found little on the internet, other than a few online newspaper clippings from the Anderson, Kokomo and Logansport papers. The Indianapolis Star and Indianapolis Times for these years is not available online.

What proved more useful was the thin, yellowed clipping file from Central Library, from which I photographed some stories.

Part II, which deals with the end of sovereign immunity in Indiana, and the enactment of the tort claims statute, was much easier to research, and was completed and posted on Sept. 6.

Here, in chronological order, are the news reports I have been able to assemble to tell the step-by-step story of the way the legal claims from the Indiana State Fair Coliseum explosion were handled, and the legal ramifications. (I welcome additional information, as this record is sketchy, but I could locate nothing comparable to what is assembled here.)

The ultimate consequence, seen when reading Parts I and II together, is that the tragedy at a state venue led to a mass settlement, but not before starting a sequence that led to the recognition by our Supreme Court in an unrelated case, two years later, that the State of Indiana is not immune from suit, that the Constitution presents no barrier, and that the State would have to bear the consequences, as do the units of local government. In response, in 1974 the General Assembly acted to cap the State's liability for any one occurrence at $5 million, via a tort claims law.


Part II, which: (1) contains the text of Perkins and a subsequent decision, which together mark the end of state immunity, and (2) details the enactment of the state tort claims statute, was posted Sept. 6th.

Posted by Marcia Oddi on Saturday, September 10, 2011
Posted to Indiana Courts | Indiana Government | Indiana Law | Stage Collapse

Ind. Decisions - More on: Homeowners' Lose Sewer Suit Against City

Remember this decision from May 10, 2011 in the case of The City of Indianapolis, et al. v. Christine Armour, et al. It was a 3-2 opinion, with the Indiana Supreme Court holding:

The City of Indianapolis abandoned the Barrett Law method of financing sewer improvements in favor of a new system that imposes less of a financial burden on property owners. To ease the transition, the City discharged all outstanding Barrett Law assessments owing as of November 1, 2005, but did not give refunds to those property owners who had previously paid their Barrett Law assessments in full or in part. We hold that the City did not violate the Equal Protection Clause of the Fourteenth Amendment because forgiving only the outstanding assess-ment balances was rationally related to a legitimate governmental interest.
The case is being appealed to the SCOTUS. The Tax Foundation of Washington DC has filed an amicus curiae brief in support of petitioners, defining the Question Presented as:
Does a city government violate the Equal Protection Clause when it forgives outstanding payments owed by taxpayers who have been paying a particular tax in installments but refuses to refund taxpayers who have paid the same tax in full?
The Foundation has posted a summary of the amicus brief here, and the full brief here.

Posted by Marcia Oddi on Saturday, September 10, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Farmers don't want to pay for drainage

Dorothy Schneider reports in the Lafayette Journal Courier:

As Tippecanoe County officials move forward with plans to improve drainage along an eastern section of Elliott Ditch, property owners in the area are gearing up for a fight.

Development interests lie at the heart of an argument over upgrades to Branch 11 of Elliott Ditch.

Property owner Gary Schroeder and family members have farmed land near the intersection of Indiana 38 and Haggerty Lane in Lafayette for decades, and they have no plans to change the use of the land. So they don't want to have to pay for drainage improvements that aren't needed for their purposes, said Jim Austin, an attorney representing the Schroeders.

"In essence they're being taxed without having an income to pay the tax," Austin told the county's drainage board Wednesday. "They have no plans to develop the land." * * *

The various improvement scenarios laid out so far would levy between $470,000 and $584,000 of the cost on landowners in that area. The state would pay close to $200,000 for upgraded drain pipes to run under Indiana 38.

Jody Hamilton, director of economic development with Greater Lafayette Commerce, issued a letter of support for the project and cited frequent interest she fields from developers looking at sites near Subaru of Indiana Automotive. Many of those potential development sites are tied up by drainage limitations.

"This area could be a prime location should the drainage outlet be improved," Hamilton said.

City Engineer Jenny Miller said the project would be positive from Lafayette's perspective because it would help create drainage needed to extend Park East Boulevard to Indiana 38, improving connectivity to Indiana 26 and easing the traffic burden on Creasy Lane.

Beasley said the project has been under discussion for more than 10 years, and the area in question has largely shifted from agricultural to urban use.

Posted by Marcia Oddi on Saturday, September 10, 2011
Posted to Indiana Government

Ind. Decisions - Still more on: 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"

Updating this ILB entry from Set. 8, 2011, Tom Moor of the South Bend Tribune reports in a long story that begins:

SOUTH BEND — One way or another, South Bend’s ultimate goal concerning the former Family Dollar property is still the same — get it in the hands of St. Joseph’s High School, preferably sooner than later.

How city officials go about that plan, though, has been steered in a different direction after the transfer was blocked by a federal judge earlier in the week.

City attorney Chuck Leone made his first comments today since U.S. District Court Judge Robert L. Miller Jr. ruled Wednesday that South Bend’s proposed transfer of the property to St. Joseph’s High School for $1 violated the First Amendment by endorsing religion.

Leone, speaking with local media, called the decision earlier in the week "disappointing," but added the city will move on from it.

Although an appeal of Miller’s ruling has not yet been ruled out, Leone said the city will first look to transfer the property at the site of the old Saint Joseph Regional Medical Center on East LaSalle Avenue to the high school for the cost of the average of two professional appraisals.

Leone said Indiana code makes a provision for the sale or transfer of real estate by allowing a government to sell real estate by the average of the two.

The purpose of the transaction, Leone said, must be to either promote an economic development project or to facilitate compatible land use planning.

"We’re trying to get back to what’s really important here, and that’s to encourage the development of that particular site and encourage neighborhood revitalization," Leone said from his 14th floor office in the County-City building. "I think we fit both of those criteria here."

The city plans to file a motion in district court Monday to seek approval of the plan. The motion will ask for permission from Miller for this method of sale, thus assuring it does not violate the court’s injunction in the process.

"At that point we’re going to ask for an expedited hearing to move this decision-making process forward," Leone said.

Leone said going through the courts to get permission is the right thing to do.

"There’s been a high level of scrutiny, and an injunction has just been issued," he said. "The city does not want to be perceived as going around the court’s decision. We want to be straightforward and open with the process that we’re using. We don’t want to be in court because someone pulled us in court asking us to be held in contempt. We want to be proactive by going into court and saying, ‘Judge, this is what we intend to do, and we want your approval for this process.’"

Posted by Marcia Oddi on Saturday, September 10, 2011
Posted to Ind Fed D.Ct. Decisions

Friday, September 09, 2011

Ind. Decisions - Court of Appeals sets oral argument in David Camm appeal

But incredibly, anyone interested in watching this very high-profile oral argument will have to drive to Vincennes!

Notice has just been posted on the Clerk's docket that argument is set for Tuesday, Oct. 4, 2011 at Shircliff Theatre, Vincennes University. Scheduled panel members are Judges Baker, Najam and Bailey.

The Court of Appeals videocasts and archives oral arguments held in the Statehouse in Indianapolis. This is a "road trip" and those have never been videocast in the past.

This is an interlocutory appeal. A LCJ story April 12th reported:

Proceedings had been unofficially halted in the Spencer County courtroom of Special Judge Jonathan Dartt since the appeals court agreed last month to review Dartt’s ruling allowing Prosecutor Keith Henderson to remain on the case despite having signed a contract to write a book on it while Camm’s second conviction was still on appeal.
There is some good news - the ILB will be posting the briefs prior to the October oral argument.

Here is a lengthy list of all earlier ILB entries re "David Camm."

Posted by Marcia Oddi on Friday, September 09, 2011
Posted to Upcoming Oral Arguments

Environment - More on "Experts chart potential Great Lakes invasion routes for Asian carp"

Commenting on the ILB item posted earlier today, David Pippen, general counsel to Gov. Daniels, sent this note:

Re Eagle Marsh: The [AP] story says that “authorities” placed a chain-link barrier up [at Eagle Marsh near Fort Wayne]. It was Indiana DNR and it was done without the ACOE [Army Corps] bureaucracy. The feds have been loose with attribution for the swift action, but it was Indiana who acted affirmatively to close off the marsh pathway.

Also, it rarely is covered that Asian Carp have reportedly been in Lake Erie for years, including this recent report. If you google Asian Carp and Lake Erie, you see reports going back a decade or better.

We take the threat seriously, but what we do about it has to be effective and fact-based.

ILB: See also earlier ILB entries: "10-foot chain-link fence OK'd for Asian carp at Eagle Marsh" from July 29, 2010, and this one from Nov. 1, 2010 with much detail on the carp fence.

Posted by Marcia Oddi on Friday, September 09, 2011
Posted to Environment

Ind. Decisions - 7th Circuit rules in public school establishment of religion case

In a 67-page, 2-1 opinion today, in a case out of Illinois, Doe 3 v. Elmbrook School District, Judge Ripple writes:

A group of pseudonymous plaintiffs, referring to themselves as Does 1 through 9, brought this action against the Elmbrook School District (“the District”) in the United States District Court for the Eastern District of Wisconsin. They alleged that the District’s practice of holding high school graduation ceremonies and related events at a Christian church rented by the District for the occasion violated the Establishment Clause of the First Amendment. They sought preliminary and permanent injunctions, a declaratory judgment and damages. After the district court denied the Does’ motion for a preliminary injunction, the parties filed cross-motions for summary judgment. The district court granted the District’s motion and denied the Does’ motion. The Does now appeal. We hold that, on the record before us, the District’s use of the rented church space was neither impermissibly coercive nor an endorsement of religion on the part of the District. Because there was no violation of the Establishment Clause, we affirm the judgment of the district court. * * *

Finally, we emphasize that our conclusion in this case rests on the record before us. Indeed, the parties represented at oral argument that they had agreed to proceed to summary judgment without taking any discovery. As we have explained, however, Establishment Clause cases are decided on their unique circumstances, and, if we are to remain faithful to the direction of the Supreme Court and to our own case law, we must decide the case on the record before us. Whether a practice violates the Establishment Clause is largely a legal issue, but it is a legal issue that is highly dependent on the facts of each case. Here, the Does present no evidence that the District sponsors the Church’s beliefs or mission. The record before us therefore does not permit a conclusion that the District’s choice of venue has the effect of conveying a message of endorsement of the Church or its views or results in an enduring and tangled relationship between the District and the Church. Accordingly, the district court properly granted summary judgment in favor of the District on the Does’ Establishment Clause claim.

In a dissent beginning on p. 55 of 67, Judge Flaum writes:
I believe that conducting a public school graduation ceremony at a church—one that among other things featured staffed information booths laden with religious literature and banners with appeals for children to join “school ministries”—runs afoul of the First Amendment’s establishment clause as applied to the states via the Fourteenth Amendment’s due process clause.2 In my view, that conclusion is consistent with well established doctrine prohibiting school administrators from bringing church to the schoolhouse. E.g., People of State of Illinois ex rel. McCollum v. Bd. of Educ. of Sch. Dist. No. 71, Champaign County, Illinois, 333 U.S. 203, 211-12 (1948) (religious instruction in public schools held unconstitutional). The same result should obtain when administrators bring seminal schoolhouse events to a church—at least to one with the proselytizing elements present in this case. The constitutional flaw with such activity is that it necessarily conveys a message of endorsement. Moreover, the Supreme Court’s “coercion cases,” Lee v. Weisman, 505 U.S. 577 (1992) and Santa Fe, cannot be meaningfully distinguished—both because endorsement is intrinsically coercive and because there was coerced activity in this case. * * *

I conclude that the practice of holding high school graduation ceremonies at Elmbrook Church conveys an impermissible message of endorsement. Such endorsement is inherently coercive, and the practice has had the unfortunate side effect of fostering the very divisiveness that the establishment clause was designed to avoid. Therefore, I respectfully dissent.

Posted by Marcia Oddi on Friday, September 09, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on "Did Martinsville boy know gun that killed his brother was loaded?"

Updating this entry from Sept. 6th, Charles Wilson of the AP reports this afternoon: "US boy, 12, acquitted of murdering 6-year-old brother, convicted of lesser juvenile charge." The story begins:

MARTINSVILLE, Indiana — A judge on Friday acquitted a 12-year-old Indiana boy of murdering his 6-year-old brother, but he convicted him of a lesser juvenile charge of reckless homicide.

Morgan Superior Court Judge Christopher Burnham determined that the evidence did not show that the older boy intended to kill his younger brother, Andrew Frye, when he pointed a gun at him and pulled the trigger June 30 at their Indiana home. The boys had different last names.

The older brother initially told police that his brother had killed himself. But when the autopsy showed that Andrew was too short to have shot himself with the rifle, his brother admitted he had pulled the trigger but said he didn't think it was loaded.

Burnham can choose from a wide range of penalties geared toward rehabilitation when he sentences the boy at an undetermined date, including probation, special programs and juvenile detention. The boy could face detention until age 18 and remain on probation until he is 21.

Until he's sentenced, he'll remain at a juvenile facility, where he will undergo a psychiatric and behavioral evaluation that probation officials will use to help make their sentencing recommendation.

Chief Deputy Prosecutor Bob Cline said after the hearing Friday that he thinks the verdict was just and that the boy needs long-term help and rehabilitation.

"He's 11 years old, 12 years old. You can't lock a person up at 11 or 12 for the rest of their life," he said.

Posted by Marcia Oddi on Friday, September 09, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Law - A Remembrance and Tribute for Prof. Patrick L. Baude

From Lauren Robel, Dean and Val Nolan Professor of Law:

Indiana University Maurer School of Law lost an exceptional scholar when Pat Baude died on January 26, 2011 after a brief illness. Pat's intellect has been described as vast, brilliant, and noble, and his inspirational teaching was legendary at the Law School. He was a font of encyclopedic knowledge on virtually any subject from the United States Supreme Court to European travel, from politics to fine wine, and his contributions were always marked by his thoughtful analysis, eloquence, and generous spirit. He leaves an incredible legacy as a brilliant teacher; a productive scholar; an exemplary public servant; and a cherished colleague, husband, father, and grandfather.

Please join us to pay tribute to Professor Patrick Baude on Friday, October 28, 2011 at 4:30 p.m. in the Moot Court Room. A reception will follow in the Faculty Lounge.

I also invite you to read and share memories of Prof. Baude on our tribute page.

Posted by Marcia Oddi on Friday, September 09, 2011
Posted to Indiana Law

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

In Autumn Eaton v. Ind. Dept. Corrections (SD Ind., Magnus-Stinson), a 19-page opinion, Judge Gottschall (sitting by designation) writes:

Pendleton Juvenile Corrections Facility (“DOC”), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, alleging that DOC discriminated against her on the basis of gender when it terminated her employment.

The district court granted summary judgment in favor of DOC, and Eaton’s appeal followed. On appeal, Eaton argues that the district court erroneously granted summary judgment to DOC because Eaton presented sufficient evidence to create a material issue of disputed fact under the McDonnell Douglas indirect method of proof analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

We review the district court’s grant of summary judgment de novo. Ellis v. DHL Express Inc. (USA), 633 F.3d 522, 525 (7th Cir. 2011). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We must draw all reasonable inferences for Eaton, the non-moving party, and view the record in a light most favorable to her. Ellis, 633 F.3d at 525. Based on the record before us, we conclude that sufficient evidence exists to preclude summary judgment, and we reverse the judgment of the district court.

In In Re: Vikram Buddhi (ND Ind., Moody), a 4-page opinion, Judge Posner writes:
Vikram Buddhi, a criminal defendant who has appealed the district court’s denial of his motion to reconsider his sentence, now asks us to command that court to rescind its order requiring that money in Buddhi’s prison trust account be applied to his district court filing fee and to a special assessment against him that was imposed as part of his sentence. 18 U.S.C. § 3013. The judge allowed Buddhi to proceed in forma pauperis in the district court. But when after losing there Buddhi asked for leave to proceed in forma pauperis on appeal, the judge discovered that although $1501.83 had been deposited in Buddhi’s prison trust account in the preceding six months, he had made no payments toward his district court filing fee, as required by 28 U.S.C. § 1915(b)(2). The judge ordered him to pay $300.67 toward the filing fee and directed the warden to deduct from his prison trust account the outstanding balance on the $1100 special assessment; the balance was $1067.00. The two payment orders left Buddhi with no money to pay the filing fee for this appeal; hence this petition for mandamus. * * *

Buddhi’s appeal is being summarily affirmed in a separate order issued today, so his inability to pay the filing fee is moot. His complaint about the depletion of his prison trust account focuses on the impart of that depletion on his ability to prosecute his appeal rather than on other uses to which he might put the money in the account. The district court’s order to the warden did exceed the court’s authority and the district judge should rescind it, but the petition for mandamus is DENIED.

Posted by Marcia Oddi on Friday, September 09, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "State Budget Cuts Lead to University Tuition Increases"

For more, see this post at Doug Masson's Blog.

Posted by Marcia Oddi on Friday, September 09, 2011
Posted to Indiana Government

Ind. Gov't. - More on "Legislative panel reviewing possible state purchase of iPads for Indiana lawmakers"

Updating its earlier story in the legislative interest in iPads, the NWI Times has this editorial today headed: "Lawmakers could use tablets to cut paper." Some quotes:

If some lawmakers get their way, the Indiana General Assembly could move to an iPad era and do away with issuing laptop computers to legislators and providing paper copies of bills before votes are taken. It's an intriguing suggestion.

State Sen. Brandt Hershman, R-Wheatfield, is chairman of the committee looking into this idea. State Rep. Linda Lawson, D-Hammond, is a member of that group. The Data Processing Subcommittee of the Legislative Council faces an October deadline to decide whether to move ahead with the purchase or continue to study the idea.

"Quite often government is slow to look at enhanced efficiency by leveraging technology," Hershman said.

It's a familiar refrain. The Good Government Initiative made the same point when examining local government in Lake County. Beefing up information technology, according to the Good Government Initiative study by Maximus Inc., could lower costs and improve customer service.

In the case of the Indiana General Assembly, issuing tablet computers would mean no longer providing costly laptop computers and printing copies of each bill for each legislator before each vote.

ILB: Well, yes legislators could do away with paper versions of bills and rely on their iPads, but as I recall that is the same rationale that was used in past years to justify the issuance of laptop computers to each legislator. But paper versions of the bills are still printed for legislators.

The public, for a decade now, has been using computers to connect to the General Assembly website and read and follow legislation during the General Assembly. One wonders why legislators also have not been using this online resource, reviewing legislation via their taxpayer-financed laptops?

And some may wonder the legislative printing office continues to produce printed and bound versions of the Indiana Code and other publications for the General Assembly members, when the public has for years not been permitted even the choice to purchase printed versions?

Posted by Marcia Oddi on Friday, September 09, 2011
Posted to Indiana Government | Legislative Benefits

Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

For publication opinions today (3):

In Shawnee Construction and Engineering, Inc. v. Don C. Stanley, Jr. , a 21-page opinion, Judge Baker writes:

In this interlocutory appeal, we decide whether a general contractor contractually assumed a duty to the employee of a subcontractor. Because neither the contractual language in the Contractor Policy stating that the general contractor is responsible for ensuring that subcontractors are trained in OSHA standards and local safety regulations nor the language in a subcontractor agreement giving the general contractor the right to fine subcontractors that violate rules and regulations affirmatively evinces the contracting parties' intent to charge one of the parties with a duty of care, we conclude that no duty was assumed.

Plaintiff-appellee Don C. Stanley, Jr., (Stanley), the employee of a subcontractor on a construction site was seriously injured when he fell off a ladder while working at the site. He filed a negligence action against the general contractor, defendant-appellant Shawnee Construction (Shawnee), and Shawnee filed a motion for summary judgment. Stanley filed a motion for partial summary judgment wherein he argued that Shawnee contractually assumed a non-delegable duty of care and was therefore vicariously liable for his injuries. The trial court denied Shawnee's motion and granted Stanley's.

Concluding that the trial court erred in granting Stanley's partial summary judgment motion and in denying Shawnee's summary judgment motion, we reverse and remand with instructions for the trial court to grant Shawnee's summary judgment motion.

In Matthew Conder v. State of Indiana , a 16-page opinion, Judge Vaidik writes:
Matthew Conder was found guilty in a bench trial of murder for kicking a man to death in a bar parking lot. He now appeals the denial of his petition for post-conviction relief. Specifically, he contends that after the trial court found him guilty of murder, his trial counsel was ineffective for filing a motion to reconsider in which he asked the court to reduce his murder conviction to voluntary manslaughter as a Class A felony, which the court granted. He says his counsel should not have conceded that shoes are a deadly weapon and that he was prejudiced because he was foreclosed from appealing the shoe and the mens rea issues. We find neither deficient performance nor prejudice and therefore affirm the post-conviction court.
In Martha Sienkowski v. Frederick E. Verschuure, an 8-page opinion, Judge Riley writes:
Sienkowski raises one issue on appeal, which we restate as: Whether the trial court erred in refusing to consider an affidavit from a juror which established that the verdict entered in a personal injury case did not appear to be the verdict the jury had unanimously agreed upon. * * *

[Referencing Sienkowski's interpretation of Ind. Evid. R. 606(b)the opinion concludes] Sienkowski is mistaken. When one disputes the information written on the verdict form, one is in effect contending that the verdict is wrong, which amounts to a direct attack on the 'validity' of the verdict. Asking the jurors during a post-trial hearing whether the amount written on Verdict Form B represents their agreement reached during deliberations directly impeaches the verdict. Therefore, we find that the trial court did not err when it denied Sienkowski's motions and granted Verschuure's motions.

Based on the foregoing, we hold that the trial court appropriately refused to consider an affidavit from a juror to impeach the jury's verdict post-trial.

NFP civil opinions today (4):

Frances Collins v. Jean Ann Elsfelder (NFP)

Doris Autry, et al. v. Central Soya Company, Inc., et al. (NFP)

Beverly Jenkins v. Cumis Insurance Society, Inc. (NFP)

In Re the Term. of the Parent-Child Rel. of J.B.and L.B.: T. B. and R.B. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (12):

Michael Smith v. State of Indiana (NFP)

Melvin Bishop v. State of Indiana (NFP)

James Mason v. State of Indiana (NFP)

Joseph Fairrow v. State of Indiana (NFP)

Joseph Gardner v. State of Indiana (NFP)

Cyrus C. Turpin v. State of Indiana (NFP)

Richard K. Orem v. State of Indiana (NFP)

Kara Day v. State of Indiana (NFP)

Manuel Rosas v. State of Indiana (NFP)

Jose Rodriguez v. State of Indiana (NFP)

Courtney Arseneau v. State of Indiana (NFP)

Shyreeta R. Members v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 09, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Clerk of Court will now again allow attorneys to pay their annual registration fee by check

Some of us were irked to learn that the new requirement that Indiana attorneys pay their annual registration online prohibits payment by check, and imposes a processing fee on use of charge cards, $1.00 plus 2% of the total. My fee was $3.92.

But for those who waited to pay, a note today from the Clerk of Courts contains this information:

In addition, I also write to let you know that next week we will add a third payment option to the Portal payment screen that will allow payment by cash or paper check in addition to credit card and e-check. This feature was added to accommodate governmental entities who can make payments only by paper check and attorneys who prefer a cash or paper check option over on-line payment methods.

Posted by Marcia Oddi on Friday, September 09, 2011
Posted to Indiana Courts

Ind. Decisions - Supreme court posts disciplinary opinion

All of the Court's "Orders and Opinions Regarding Final Resolution in Attorney Disciplinary Cases " are available here. The ILB highlights those that are somewhat notable. In this 2-page opinion posted today, and issued Sept. 6, 2011, In the Matter of Arvil R. Howe, "the Court suspends Respondent from the practice of law for a period of 180 days, beginning October, 18, 2011, with 60 days actively served and the remainder stayed subject to completion of at least two years of probation."

Respondent was involved in 3 OWI incidents, in 1985, 2004, and 2010, and in each incident, "He failed to report this conviction to the Commission."

"Respondent admits that he violated these rules prohibiting the following misconduct:

Posted by Marcia Oddi on Friday, September 09, 2011
Posted to Ind. Sup.Ct. Decisions

Environment - "Experts chart potential Great Lakes invasion routes for Asian carp"

From the Sept. 2, 2011 Chesterton Tribune, via AP, a long story that begins:

TRAVERSE CITY, Mich. (AP) — Not quite 5 miles long, Jerome Creek winds through farmland and Pleasant Prairie, Wis., about 35 miles south of Milwaukee. In some places, it’s narrow enough to jump across. It fish population consists mostly of minnows.

Yet this unremarkable stream could be an ecological time bomb, for it’s a crucial link in a chain of waterways hundreds of miles long that connects Lake Michigan to the Mississippi River. Experts say the creek might be a doorway through which invasive species — including the much-maligned Asian carp — will slip between the Mississippi drainage basins and the Great Lakes.

In recent years, the battle to prevent the plankton-gobbling carp from entering the Great Lakes and disrupting their $7 billion fishing industry has focused on the Chicago area, where a shipping canal forms what some call a “superhighway” for invaders. But the U.S. Army Corps of Engineers is taking a closer look at 18 other waterways from New York to Minnesota that could provide an aquatic back alley for the wily aggressors.

The corps is analyzing which of those secondary routes pose the biggest threats — a task that became more urgent this month with the discovery of Asian carp DNA in the St. Croix River on the Minnesota line and an angler’s catch of a bighead carp in the lower Wisconsin River. Neither river has a direct tie to the Great Lakes, but both are tributaries of the Mississippi. The finds were further evidence of the carp’s steady northward march, which makes shielding the lakes ever harder. * * *

With so much at stake, federal and state agencies are working to identify potential gateways across the basin divide. In a report last year, the Army Corps identified 31 such locations. Most are natural wetlands and streams or man-made farm ditches and transportation canals. Eighteen were classified as a medium, high or acute risk.

Among them was little Jerome Creek, which runs near the basin boundary. During high-water periods, its headwaters could link up with a nearby stream that flows into Lake Michigan, several miles away. On the other end, it’s a tributary of the Des Plaines River, which courses southward to the Illinois River, which intersects with the Mississippi more than 300 miles south of the creek.

The creek is considered a medium risk as an invasive species route. During the dry season, some portions have little water. But storm runoff can fill it quickly.

“There’s a potential that during high flow or flooding, an invasive species could use the creek to get from Point A to Point B,” said Bob Wakeman, invasive species coordinator for the Wisconsin Department of Natural Resources.

According to the report, the riskiest site outside Chicago is the 700-acre Eagle Marsh near Fort Wayne, Ind. There, outlying waters from the carp-infested Wabash River sometimes mingle with the headwaters of the Maumee River, a tributary of Lake Erie. That could produce a disaster, said Duane Chapman, a U.S. Geological Survey fish biologist. Erie is the shallowest and warmest of the Great Lakes and has the most abundant fishery.

Chapman told The Associated Press he and a colleague are about to publish a paper identifying several rivers feeding Lake Erie, including the Maumee, as suitable Asian carp spawning habitat.

“It looks like the Asian carp could invade Lake Erie effectively,” he said. “It has the food they need, it has the right temperature, it has rivers that are the right length. I don’t know what else could hold them back, other than not getting enough fish in there to reach critical mass.”

Posted by Marcia Oddi on Friday, September 09, 2011
Posted to Environment

Thursday, September 08, 2011

Courts - A third federal Circuit Court weighs in on Health Care Act

A good, succinct summary of the three circuits that have ruled, here in the NY Times.

[More] Lyle Denniston of SCOTUSblog reports on the opinion here.

Posted by Marcia Oddi on Thursday, September 08, 2011
Posted to Courts in general

Courts - "Padilla v. Kentucky and the Evolving Right to Deportation Counsel: Watershed or Work-in-Progress?"

Read about the law journal article by Professor Daniel Kanstroom here, at Sentencing Law blog.

Posted by Marcia Oddi on Thursday, September 08, 2011
Posted to Courts in general

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

For publication opinions today (1):

In Cathy Minix, et al. v. Sheriff Frank Canarecci, Jr., et al. , a 22-page opinion, Judge Mathias writes:

In the first of these consolidated interlocutory appeals, Cathy Minix, (“Minix”) appeals from the trial court's grant of summary judgment in favor of St. Joseph County Sheriff Frank Canarecci, Jr. (“the Sheriff”) on Minix's wrongful death claim. On cross-appeal, Memorial Health Care, Inc. and several named employees (collectively, “Memorial”), and Madison Center, Inc. and its employee, Christine Lonz (collectively, “Madison”) challenge the trial court's denial of their motion for summary judgment on Minix's medical malpractice and wrongful death claims. With respect to the trial court's grant of the Sheriff's motion for summary judgment, we reverse and remand for proceedings consistent with this opinion. With respect to the trial court's denial of Madison and Memorial's motion for summary judgment, we affirm.
NFP civil opinions today (1):

In Re the Marriage of: Samuel D. Gray v. Angel Gray (NFP)

NFP criminal opinions today (5):

John A. Bailey v. State of Indiana (NFP)

Robert A. Johnson v. State of Indiana (NFP)

Gerald Clark v. State of Indiana (NFP)

Jason Clark v. State of Indiana (NFP)

Robert Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 08, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: 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"

Updating this ILB entry from August 18th, Mary Kate Malone reports today in the South Bend Tribune under the headline "St. Joe High land deal is blocked: Judge says property transfer violates First Amendment." Some quotes:

SOUTH BEND - A federal judge issued an order Wednesday blocking the city of South Bend from transferring city-owned land to St. Joseph’s High School, saying doing so would violate the First Amendment by appearing to endorse religion.

In a 36-page ruling, U.S. District Judge Robert L. Miller Jr. favored four South Bend residents who sued over the city’s planned transfer of the former Family Dollar property, which the city bought last month for $1.2 million.

“The proposed Family Dollar transaction has the appearance of putting (religious) adherents and non-adherents on different footing,” the judge wrote, “which would lead an objective, well-informed, reasonable observer to think the city is endorsing St. Joseph’s High School, the local Catholic community, or the Diocese that operates the school.” * * *

At a hearing last week, South Bend city attorney Chuck Leone defended the transaction as part of the city’s long-term redevelopment plan, which includes similar deals already completed with Salvation Army, Ivy Tech, Fire Arts and South Bend Chocolate Co.

The religious nature of St. Joseph’s High School was only incidental, Leone said.

But American Civil Liberties Union attorney Gavin Rose, representing the plaintiffs, said the land was essentially a gift to a Catholic high school, given without requirements that it be used only for secular purposes.

The judge said the deal with St. Joseph’s High School was different than previous redevelopment transactions because in this case, the high school did not bring anything of value to the transaction beyond limited public use over a 10-year period.

“St. Joseph’s High School is receiving more from the city than it is giving in exchange, and so is receiving a direct benefit,” he wrote, noting that benefit could be perceived by a reasonable person as an endorsement of a religious institution.

The property was scheduled to be transferred first to the Northeast Neighborhood Revitalization Inc., and then to St. Joseph’s High School.

The transfer was to take place before Sept. 15. The school said previously if the judge blocked the transfer, it could affect the construction timeline to open the school by fall 2012.

Here is a link to the 36-page opinion in Wirtz v. City of South Bend.

Posted by Marcia Oddi on Thursday, September 08, 2011
Posted to Ind Fed D.Ct. Decisions

Stage Collapse - More on Feinberg's visit yesterday

Supplementing these two ILB entries yesterday (here and here) on Ken feinberg's meetings with the AG and with the State Fair officials, John Russell reports this morning in the Indianapolis Star. Some quotes from "Kenneth Feinberg: There will be tension over stage collapse money":

After the 9/11 attacks, Feinberg approved nearly $7 billion in settlements, with the average payment of $2.1 million to families of the deceased. After the Gulf Coast oil spill, Feinberg presided over a $20 billion fund, which paid out $5 billion in its first year.

The Indiana State Fair tragedy, however, is a whole different deal, with no big paydays likely, Feinberg said in a news conference at the State Fairgrounds on Wednesday.

"This is not like 9/11, when Congress said to pay out whatever is necessary," he said.

He added: "There's going to be a lot of decisions made about who is eligible. There will always be a tension."

Zoeller, in a statement Wednesday, said the state would give priority to families of victims who died and those who were seriously injured.

State law limits the government's liability to $700,000 per injury or death, with a cap of $5 million for the entire case.

Some victims and their lawyers say the pot of money should be larger. Some have said they plan a court challenge to the $5 million cap, saying the limit is unreasonable for such a large number of people.

Victims and their families could decline the settlement and choose to pursue litigation in court. But reaching a settlement with the state would provide a victim with the certainty of compensation and early resolution of the case, Zoeller said. So far, 16 tort cases have been filed against the state.

Feinberg said it probably will take weeks before he is finished drafting guidelines for who is eligible for money, how to apply, how the funds will be divided and when the checks will be mailed. He is donating his services to the state.

Posted by Marcia Oddi on Thursday, September 08, 2011
Posted to Stage Collapse

Courts - "Suspected illegal immigrants jailed in Cook County on minor charges will no longer be turned over to immigration authorities for possible deportation"

The Chicago Sun-Times has this story today, reported by Lisa Donovan. More from the story:

In the past, undocumented residents could be held for an additional 48 hours at the request of federal immigration authorities, who could then initiate deportation proceedings. But following a recent ruling by a federal court in Indiana, the Cook County State’s Attorney issued an opinion that the so-called Immigration and Customs Enforcement detainers should simply be considered requests, not warrants mandating arrests.
Antonio Olivo reports today in the Chicago Tribune:
The Cook County Board of Commissioners passed an ordinance Wednesday that would allow suspected illegal immigrants jailed in misdemeanor cases to be freed despite federal requests to have them detained for possible deportation. * * *

The new ordinance, which takes effect immediately, applies to suspected illegal immigrants arrested on misdemeanor charges ranging from traffic violations to minor drug and disorderly conduct charges. * * *

The Cook County ordinance was based on a recent federal ruling in Indiana that determined ICE detainers are voluntary requests and not criminal warrants. Similar ordinances exist in San Francisco and two counties in New Mexico.

ILB: What Indiana federal ruling are they referencing? Apparently Judge Barker's 39-page preliminary injunction in the challenge to the 2011 immigration law passed by the Indiana General Assembly. Access it here. See p. 27, for instance:
Federal law specifies that the immigration penalties associated with aggravated felonies arise only if the individual has been convicted of the offense. 8 U.S.C. §1101(a)(43). Yet Section 19 [of the challenged Indiana law] allows state and local law enforcement to arrest those who they have probable cause to believe have merely been indicted for such an offense.

Posted by Marcia Oddi on Thursday, September 08, 2011
Posted to Courts in general

Ind. Gov't. - "Grand jury inquiry begins today into case of Union County employees"

Pam Tharp reports today in the Richmond Palladium-Item:

LIBERTY, Ind. -- A grand jury will hear evidence beginning today on allegations made against Union County employees and officials by a recent Indiana State Board of Accounts audit.

The specific targets of this grand jury are unknown. The State Board of Account audit of Union County for 2008-09 released in January accuses highway supervisor Wanda Hartman and highway employee Rick Crowder of ghost employment in the construction of Hartman's home. The pair are also accused of using highway equipment on her home construction project, according to the audit. Hartman was conditionally reappointed as highway supervisor in January.

Former commissioners Gary Davis, Allen Paddock and Larry Gulley, former Auditor Pat Hensley, and current commissioners Paul Wiwi and David Woeste also were cited for paying personal cell phone bills, which the audit said included numerous personal calls and lacked documentation as to the cost of the reimbursed calls. The state said $1,807 was owed for calls made between Jan. 1, 2008, and Dec. 31, 2009. * * *

Union Circuit Court has allowed two days on its calendar for the grand jury proceedings, which are not open to the public. The glass in courtroom's doors will be covered to ensure privacy for the grand jury inquiry, the first one here since 1996.

The court has summoned 30 residents as possible jurors, according to the jury order. A grand jury is composed of six members and an alternate who will hear evidence, question witnesses and decide if any criminal charges are filed.

The court and the prosecutor are the legal advisers to the grand jury. At least five jury members must vote for and sign a "true bill" of indictment for criminal charges to be filed.

Clerk of Court Sue Ray confirmed her office has sent a number of subpoenas to possible witnesses, but said she didn't count them.

Special Prosecutor Melvin Wilhelm asked Union Circuit Judge Matthew Cox to call a grand jury after an Indiana State Police investigation into the audit's allegations was completed last month.

The State Board of Accounts sent the 2008-09 audit to Union County Prosecutor Ronald Jordan to consider for possible criminal charges. Jordan requested a special prosecutor be named because the audit allegations involved county personnel.

On Tuesday, Williams cautioned any county commissioners who might have been called to testify that grand jury proceedings are "sacrosanct."

"Don't discuss your testimony with anyone else," Williams said.

ILB: Use of grand juries is fairly infrequent in Indiana state courts. See this ILB entry re the Carmel High School cases.

Posted by Marcia Oddi on Thursday, September 08, 2011
Posted to Indiana Government

Wednesday, September 07, 2011

Ind. Gov't. - "IBM: If Daniels can go on book tour, he can testify in lawsuit over Ind. welfare privatization"

So reports Ken Kusmer of the AP in a brief, already widely syndicated story this afternoon - some quotes:

INDIANAPOLIS - IBM Corp. says that if Indiana Gov. Mitch Daniels can lead a motorcycle tour across his state and promote his latest book, he's not too busy to testify about his decision to cancel a $1.37 billion contract with the technology giant to automate welfare intake.

Armonk, N.Y.-based IBM filed a 23-page motion in Marion Superior Court in Indianapolis this week requesting Daniels give a deposition in a lawsuit over the contract.

IBM argues that if Daniels has time for those other things, he can take time like any citizen to testify about events in which he was the central decision-maker.

Dreyer ruled in April that Daniels need not testify, but left open the possibility he might be ordered to later.

Posted by Marcia Oddi on Wednesday, September 07, 2011
Posted to Indiana Government

Courts - 2011 Ninth Circuit Judicial Conference sessions online

Video of what appears to be much of the 2011 Ninth Circuit Judicial Conference is now available online.

The program featured presentations on the limits of federalism; use of neuroscience evidence in the courtroom; historical overviews of search and seizure law; the future of the courts; and a retrospective on 40 years of women in the law.

Over 9 hours, plus "A Tribute to Arizona Chief District Judge John M. Roll."

Posted by Marcia Oddi on Wednesday, September 07, 2011
Posted to Courts in general

Stage Collapse - Feinberg also meets with State Fair officials

In addition to meeting with AG Zoeller, Ken Feinberg met this afternoon with State Fair officials. WISH TV Indy filed this report at about 3 pm. Some quotes:

Indiana State Fair officials hope to devise a formula in the next two weeks that they will use to distribute money from the Indiana State Fair Remembrance Fund. But the question remains: Who will get the money, and how much will they get?

The fund currently has about $800,000, which means the state and compensation expert Kenneth Feinberg will have to make some tough decisions about the distribution of funds.

“That’s not a great deal of money to distribute to everyone who has a claim,” said Feinberg, who helped oversee the 9\11 Victim Compensation Fund, as he explained the decisions that needed to be made.

“There’s going to need to be some tough decisions made based on the reality of the funds available …with a limited amount of administrative oversight and delay,” he said.

Andre Lacy, chairman of the Indiana State Fair Commission, told the media he hopes the decisions for the distribution protocol will be made within two weeks.

Lacy characterized the victims’ fund as an emergency relief fund, and Feinberg said the timeline reflects that. * * *

A plan to disperse the remembrance fund likely will be put into place before any of the consultants brought into conduct the structural and procedural investigations publish any findings.

Note: This is the money Gov. Daniels transfered to the state treasury via an executive order, as detailed in this August 31st ILB entry.

Posted by Marcia Oddi on Wednesday, September 07, 2011
Posted to Stage Collapse

Stage collapse - AG, Kenneth Feinberg discuss settlement process in State Fair tragedy

Just released by the AG's office:

INDIANAPOLIS – Attorney General Greg Zoeller met with victim compensation expert Kenneth Feinberg today to discuss how the Indiana Tort Claim Fund will be paid out to the maximum $5 million to assist victims of the Indiana State Fair tragedy.

The Attorney General administers the Tort Claim Fund from which victim compensation settlements will be paid. Feinberg, who previously has served as victim compensation fund administrator after 9/11, the Virginia Tech shootings, the BP Gulf of Mexico oil spill and other tragedies, is donating his services as consultant to the Attorney General.

In their first face-to-face meeting on the State Fair tragedy, Zoeller and Feinberg discussed the possible outlines of a settlement-application process to ensure that victims of the August 13 disaster are treated equitably. The next step will be for the Office of the Indiana Attorney General to hire a respected claims-management firm that will field victims’ calls and questions and gather necessary information that Feinberg and the Attorney General will use.

“The State is not a private company and the Tort Claim Fund is not a private insurance policy; the State has a higher obligation than a private party. Our objective is focused on the victims of this tragedy. They will not be required to hire a lawyer if they don’t wish to; they could apply for compensation directly through the claim managers who have expertise in treating victims in a professional, courteous manner,” Zoeller said.

Drawing upon his work adjudicating claims after 9/11, Virginia Tech and other tragedies, Feinberg is devising a protocol for obtaining information from victims and determining amounts of fair and equitable compensation.

“I am honored by the Attorney General’s invitation to assist in providing prompt compensation to the victims of this terrible tragedy. We have learned a great deal from successful compensation programs established to pay the victims of the 9/11 terrorist attacks, the Virginia Tech shootings, and last year’s massive oil spill in the Gulf of Mexico. Working for the Attorney General, I hope to use these experiences in helping to design a compensation program that will be efficient, swift, and transparent,” Feinberg said.

Current Indiana law caps the amount of settlements that can be paid out of the Tort Claim Fund to a total $5 million per incident. Out of the limited funds available, priority will be placed on compensating families of victims who died and victims seriously injured, Zoeller said.

Feinberg is advising the Attorney General on a protocol for reviewing settlement applications from victims and making settlement offers. Accepting a settlement offer would be optional; a victim could instead decline it and choose to pursue litigation in court. But reaching a settlement with the State would provide a victim with the certainty of compensation and early resolution of the case, while minimizing the costs of litigation that a protracted lawsuit would entail, Zoeller said.

Details of the settlement protocol still are being developed and the application time frame for issuing settlement payments has not yet been determined. A toll-free number and web address soon will be set up and posted on the Attorney General’s web site. Zoeller noted settlements will be distributed irrespective of liability, and the State does not admit liability by making settlement offers.

“We are expediting the process but must work through the necessary details. We are committed to implementing this settlement process with justice and compassion, relying upon the wisdom Mr. Feinberg brings from his previous experience compensating victims of 9/11 and other tragedies,” Zoeller said.

The Office of the Indiana Attorney General represents the State in various legal matters related to the State Fair tragedy. By statute, the Attorney General reviews claims and makes recommendations to the Governor for his consent before any settlement payments are made on behalf of the State.

Separate from his role consulting the Attorney General, Feinberg also is advising the Indiana State Fair Commission on protocols for distribution of the private charitable donations made to the Indiana State Fair Remembrance Fund. Feinberg is providing his expertise to both agencies at no charge to the State or taxpayers.

Posted by Marcia Oddi on Wednesday, September 07, 2011
Posted to Stage Collapse

Ind. Courts - New SD Ind. Magistrate Judge LaRue to be sworn-in tomorrow

From the press release:

The United States District Court for the Southern District of Indiana announced that a formal swearing-in ceremony for United States Magistrate Judge Denise K. LaRue will be held Thursday, September 8, 2011, at 2:00 p.m. Chief Judge Richard L. Young will preside over the ceremony in the William E. Steckler Ceremonial Courtroom (Courtroom 202) of the Birch Bayh Federal Building and United States Courthouse in Indianapolis. Judge LaRue fills a new magistrate judgeship created for the Southern District of Indiana by the Judicial Conference of the United States.
Apparently she was also sworn in on May 24, 2011.

Posted by Marcia Oddi on Wednesday, September 07, 2011
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In Isaiah Christmas v. Kindred Nursing Centers Limited Partnership d/b/a Windsor Estates Health and Rehabilitation Center . a 16-page opinion in a slip and fall case where the issues are whether plaintiff was a business visitor, and whether defendants (Windsor) breached their duty of care. Judge Darden concludes:

We reverse the trial court's order granting summary judgment to Windsor and remand for further proceedings.
In Christopher A. Andrews v. Sara L. Ivie, an 11-page opinion, Sr. Judge Barteau concludes:
We conclude that Andrews engaged in a knowing or an intentional course of conduct involving repeated or continuing harassment of Ivie that would cause a reasonable person and did indeed cause Ivie to feel terrorized, frightened, intimidated, or threatened. There is thus sufficient evidence to support the trial court‟s issuance of the protective order.
NFP civil opinions today (3):

Celina Insurance Company v. Indianapolis Roofing and Sheet (NFP)

K.T. v. Review Board, and F.C.I. (NFP)

Term. of Parent-Child Rel. of C.E.B., K.H.B., Jr., and M.R.B.; C.M.B. v. IDCS (NFP)

NFP criminal opinions today (6):

State of Indiana v. David G. Bruno, Jr. (NFP)

Rodney G. Cooper v. State of Indiana (NFP)

Shane William Kervin v. State of Indiana (NFP)

David Malone v. State of Indiana (NFP)

Joseph M. Campbell v. State of Indiana (NFP)

Joseph Dontaus Banks v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 07, 2011
Posted to Ind. App.Ct. Decisions

Law - "Children of Sperm Donors May Have Many Siblings"

"One Sperm Donor, 150 Offspring" was the headline of a long, eye-opening story in yesterday's NY Times. Here is a sample:

Now, there is growing concern among parents, donors and medical experts about potential negative consequences of having so many children fathered by the same donors, including the possibility that genes for rare diseases could be spread more widely through the population. Some experts are even calling attention to the increased odds of accidental incest between half sisters and half brothers, who often live close to one another. * * *

Although other countries, including Britain, France and Sweden, limit how many children a sperm donor can father, there is no such limit in the United States. There are only guidelines issued by the American Society for Reproductive Medicine, a professional group that recommends restricting conceptions by individual donors to 25 births per population of 800,000.

Posted by Marcia Oddi on Wednesday, September 07, 2011
Posted to General Law Related

Ind. Courts - More on "Legal error delays work at Union County Courthouse: General Assembly's failure to set common wages as stalled courthouse drainage project"

Updating this ILB entry from August 18th, where the Richmond Palladium-Item reported:

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.

It turns out, according to this Pal-Item story today, that although Union County will need to delay its courthouse drainage project until next year:
The work planned on county agricultural ditches can proceed because those are considered repair projects, [County attorney Jim] Williams said. He also advised the commissioners to advertise for quotes this fall for the work because it's expected to cost more than $25,000.
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 Wednesday, September 07, 2011
Posted to Indiana Courts

Stage Collapse - "Daniels not ready to endorse lifting $5M liability cap"

Kevin Rader had this report last evening on WTHR 13 Indianapolis. From the story:

INDIANAPOLIS - Gov. Mitch Daniels is not ready to get on board with the idea of lifting the cap on the state's compensation fund for victims of the Indiana State Fair tragedy. A Democratic lawmaker floated that idea last week.

Nearly a month has passed since high winds blew down the outdoor stage rigging at the Indiana State Fair. Seven people died in the tragedy and dozens more were injured.

Fourteen tort claims stemming from the incident have been filed with the Indiana attorney general's office so far. The State of Indiana is in the process of drawing up a system for dispersal of its liability fund which is capped at $5 million.

"The idea, of course, is to provide certainty to people who otherwise might wait years and might get nothing to see they get all of the money; a lawyer doesn't get a third of it and at their option entirely, give them an alternative to lengthy cost of litigation and get on with life. They would always have the choice to go to court and take their chances. Just seems to us a reasonable step under the circumstances," said the governor.

Last week, Democratic lawmaker Ed DeLaney proposed increasing that cap, in this case, to pay out more to state fair victims. Gov. Daniels called that idea premature.

"I wouldn't say yes or no. We are prepared to go ahead and release the $5 million, which is the state's limit before anybody knows anything about fault or where it lies among all parties. It's just again to give people an option that they otherwise wouldn't have and a chance to have compensation immediately with certainty and not have to share it with trial lawyers. For now that will be our emphasis. Let's see what the inquiry tells us," said Daniels.

[More] See also this editorial in this morning's Indianapolis Star. Some quotes:
Given the large number of injuries, victims' combined medical bills are likely to greatly exceed the cap.

[State Rep. Ed DeLaney] says he's willing to push for either a one-time exception to the cap or a general increase on the limit of the state's liability for accidents.

For now, the one-time exception would be the better course. That approach would be more likely to gain broader support in the General Assembly. And because the state would likely move faster on a one-time exemption than a general increase, victims also would more quickly receive the compensation.

The state could then take the time to study whether a permanent increase in the cap is necessary and fiscally prudent.

Posted by Marcia Oddi on Wednesday, September 07, 2011
Posted to Stage Collapse

Tuesday, September 06, 2011

Stage Collapse - The 1963 Coliseum Explosion, the end of sovereign immunity, and the enactment of the tort claims statute -- Part II

This is Part II of a two-part series providing hard-to-find background information on the 1963 Coliseum Explosion, the end of sovereign immunity in Indiana, and the enactment of the tort claims statute. Part I [coming soon] details the 1963 coliseum explosion in Indianapolis, which killed 74 and injured nearly 400, and the legal ramifications.

In Perkins v. State, 252 Ind. 549 (1969), the Indiana Supreme Court ruled for the first time that the State was not immune from suit. A quote from the opinion, authored by Judge Arterburn:

The common law changes. The principle of stare decisis should not always confine our thinking in any case. There has been within the last two or three decades considerable reevaluation and consideration with reference to the principle of sovereign immunity.

Circumstances in bygone ages may have warranted some of the rather strict principles found in the common law relative to sovereign and charitable immunities. However, the common law of today is not a frozen mold of ancient ideas, but such law is active and dynamic and thus changes with the times and growth of society to meet its needs. * * *

It has been stated: Why should the individual bear the loss and injury resulting from a negligent act of the government, when a private industry or individual is bound under law to pay for damages for its tortious acts and the government is better able to do so? Insurance has ameliorated the effects of such liability to private individuals and can do so for the state. * * *

We have seen through the years the common law principle that charities are immune as to tort liability whittled down by an enlightened judiciary because there has been no substantial grounds for the grievous wrongs perpetrated by such immunity. No longer may a hospital negligently and carelessly treat a patient without compensation for such tortious injuries. * * *

In eliminating the immunity of charitable institutions from tort liability, Chief Justice Lewis, speaking for this Court in Harris v. Y.W.C.A., supra, stated that the principles of stare decisis do not prevent the courts from ever changing the common law, but the common law must grow and develop with the growth of our society in which it operates. The argument that the legislature — not the Court — is the one to make the change, is answered by the fact that the principle was created by the courts as part of the common law, and if error exists or if the principle has become antiquated, it is the duty of the Court to change it.

In an opinion three years later, Campbell v. State, 284 N.E.2d 733 (1972), Judge Arterburn continued:
In Perkins v. State (1969), 252 Ind. 549, 251 N.E.2d 30; the Supreme Court utilized the governmental-proprietary function to limit the application of the doctrine on the state level. In Perkins, the appellants fell ill due to the contamination of a lake with raw sewage. They had rented a lakeside cottage in a state park for which the maintenance thereof was the duty of the state. The trial court sustained the state's motion to dismiss on the ground that the court did not have jurisdiction due to the sovereign immunity of the state. The Supreme Court reversed, holding that such operation was a proprietary activity, and, therefore, the state could not avail itself of the immunity privilege. Following the holding in Perkins, all that remained of sovereign immunity was immunity on the part of the state from negligent acts occurring while the state was in performance of a solely "governmental function." Exactly what a governmental function constituted was not yet clearly defined. However, this court in Perkins recognized that municipal corporations and county governments had been eliminated from the scope of sovereign immunity as to tortious acts.

With only a mere fraction of the original doctrine remaining, we are faced with the task of attempting to eliminate the confusion surrounding the doctrine.

The argument has been presented that elimination of the doctrine of sovereign immunity will impose a disastrous financial burden upon the state. Assuming there is any relevancy to this contention, we point out that the abrogation of sovereign immunity on the state level is consistent with conditions already existing in cities and counties in this state. If city and county governments can withstand the consequences of such liability, where traffic hazards seemingly are greater, the state should be able to also bear such burden.

We may also add that the elimination of sovereign immunity means a more equitable distribution of losses in society caused by the government unto members of society, rather than forcing individuals to face the total loss of the injury. * * *

Finding no basis for the continuation of the doctrine of sovereign immunity as applicable to the state any more than it is applicable to municipal corporations and counties, we hold that such a defense by the state is not available to any greater extent than it is now available to municipal corporations and counties of this state.

With the end of the blanket protection of the State against lawsuits via sovereign immunity, the General Assembly moved to limit the State's liability by statute.

In 1974, via PL 142, the Indiana General Assembly enacted a tort claims act.

SECTION 1 of the Act set out the new law, IC 34-4-16.5. Sec. 4 of the new law provided: The aggregate liability of all governmental entities does not exceed $300,000 for injury or death of one person in any one occurrence and does not exceed $5 million for injury or death of all persons in that occurrence. A governmental entity is not liable for punitive damages.

Sec. 6. sets out the 180 day notice requirement. Sec. 10 provides that within 90 days of the filing of a claim the governmental entity shall notify the claimant in writing of its approval or denial of the claim. A claim is denied if the entity fails to approve within 90 days, unless the parties have reached a settlement.

Sec. 12 states that a person may not initiate a suit against a governmental entity unless his claim has been denied in whole or in part.

Sec. 13. The governor may compromise or settle a claim or suit brought against the state. Sec. 14 provides that the attorney general shall advise the governor.

Sec. 16 provides that a court which has rendered a judgment against a governmental entity may order that entity to: (1) appropriate funds for the payment of the judgment or (2) levy and collect a tax to pay the judgment if there are insufficient funds available.

The Act also contains, at SECTION 2, a noncode blanket appropriation: "There is hereby appropriated from the general fund of this state sufficient funds to settle claims and satisfy tort judgments which have been or will be obtained against the state of Indiana ..." This language, in conjunction with the language of Sec. 13 of the Tort Claims act, is needed to fund the settlement of suits by the governor, because the Indiana Constitution, Art. 10, section 3 of the Indiana Constitution provides: "No money shall be drawn from the Treasury, but in pursuance of appropriations made by law."

The Tort Claims Act has been amended several times and was part of a recodification in 1998 that resulted in its current citation as IC 34-13-3.

Sec. 4 of the original law, which sets the limits, is now located at IC 34-13-3-4. The original $300,000 for injury or death of one person in any one occurrence has been raised to $700,000, but the total cap of $5 million remains the same as it was when initially enacted 37 years ago, in 1974.

IC 34-13-3-14 contains the language authorizing the governor to "compromise or settle a claim or suit brought against the state or its employees." IC 34-13-3-17 authorizes a court to order the appropriation of funds or the imposition of a tax to pay the judgment.

Finally, IC 34-13-3-24 makes a permanent part of the Indiana Code the appropriating language:

Sec. 24. There is appropriated from the state general fund sufficient funds to:
(1) settle claims and satisfy tort judgments obtained against the state; and
(2) pay expenses authorized by this chapter, including:
(A) liability insurance premiums;
(B) interest on claims and judgments; and
(C) expenses incurred by the attorney general in employing other counsel to aid in defending or settling claims or civil actions against the state.
As added by P.L.1-1998, SEC.8.

Posted by Marcia Oddi on Tuesday, September 06, 2011
Posted to Indiana Courts | Indiana Government | Indiana Law | Stage Collapse

Ind. Decisions - Transfer list for week ending September 2, 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 September 2, 2011. It is two pages (and 31 cases) long.

Three transfers were granted, two of them on Sept. 2. The Smith transfer, however, was granted on Aug.10th:

Posted by Marcia Oddi on Tuesday, September 06, 2011
Posted to Indiana Transfer Lists

Ind. Courts- Plowman bribery trial starts this week in federal court

Carrie Ritchie of the Indianapolis Star's report here. A quote:

Former City-County Councilman Lincoln Plowman's trial this week on federal bribery and extortion charges will lift the shroud on an undercover probe into an alleged deal to trade cash for influence.

It also should put other elected officials on notice, said U.S. Attorney Joseph Hogsett, who warned that he and his staff are targeting corruption.

"Any violation of public trust for personal financial gain will be identified, investigated and prosecuted by this office to the fullest extent of the law," Hogsett said. "My job is to make sure there's never a 'for sale' sign on any public official, ever."

Plowman, who also was a major with the Indianapolis Metropolitan Police Department, is scheduled go on trial Tuesday in U.S. District Court in Indianapolis. He is accused of agreeing in 2009 to help an undercover FBI agent bring a strip club Downtown.

The alleged tradeoff: $5,000 in cash and a $1,000 campaign contribution.

A federal grand jury indicted Plowman in September 2010 on charges of attempted extortion and bribery. He faces up to 20 years in prison and a $250,000 fine if convicted of attempted extortion, and 10 years in prison and a $250,000 fine if convicted of bribery.

Posted by Marcia Oddi on Tuesday, September 06, 2011
Posted to Indiana Courts

Ind. Courts - "Did Martinsville boy know gun that killed his brother was loaded?" [Updated]

Charles Wilson of the AP reports on the bench trial underway today in Martinsville. A quote:

Testimony began today before a Morgan County judge who will determine whether the boy is guilty of murder and reckless homicide charges in the June 30 shooting of Andrew Frye. The boy, who has a different last name than his brother, is being tried as a juvenile, but still could face several years in detention if he's convicted.
ILB: The judge is not named in the story.

[Updated at 2 pm] A helpful reader has responded: "Judge Christopher Burnham is hearing the case In Sup. Ct. 2."

Posted by Marcia Oddi on Tuesday, September 06, 2011
Posted to Indiana Courts

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

In Paul v. Marberry (SD Ind., Lawrence), an 8-page opinion, Judge Posner writes:

The district judge denied the plaintiff’s motion to be allowed to proceed in forma pauperis, on the ground that he had three strikes, one for each of three previous civil suits brought by him that had been dismissed. 28 U.S.C. § 1915(g). (Two of those suits are called Paul v. United States District Court. They are No. 2:09-cv-345-LJM-DML (S.D. Ind. Dec. 3, 2009), and No. 2:09-cv-347-LJM-DML (S.D. Ind. Dec. 3, 2009). The third is Paul v. United States, No. 2:09-cv-346- RLY-WGH (S.D. Ind. Dec. 2, 2009).) The plaintiff failed to pay the filing and docketing fees in full and so the judge dismissed the suit, though without prejudice. * * *

The statute is explicit, and the case law confirms [omitted] that classifying a dismissal as a strike depends on the grounds given for it; since most prisoners litigate their civil claims pro se, they should not be required to speculate on the grounds the judge could or even should have based the dismissal on. It is true that had the plaintiff appealed any of his previous dismissals, we might have affirmed on a ground, different from the district judge’s, that would have given him a strike.[omitted] But that is different from giving a prisoner a strike, especially a third strike, when no court had mentioned a ground for dismissal specified in the statute for calling a strike.

We reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Tuesday, September 06, 2011
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In In Re: The Order of Contempt Against Craig Benson, Martinsville Depot, Inc., and SBS Enterprises, Inc. v. Co-Alliance, LLP , an 18-page opinion, Judge Barnes concludes:

The trial court properly denied Benson‟s motion to dismiss the contempt proceedings because the original motion was unverified. The trial court also properly rejected Benson‟s argument that it did not have jurisdiction to order him to pay $75,000 to the Morgan County Clerk. We affirm.
In Clarence T. Hawkins James v. State of Indiana , an 11-page opinion, Judge Mathias concludes:
James‘s convictions for conspiracy to commit armed robbery and robbery while armed with a deadly weapon do not constitute double jeopardy, and the trial court did not commit fundamental error in instructing the jury with regard to the mens rea required to convict James of conspiracy to commit armed robbery.
NFP civil opinions today (0):

NFP criminal opinions today (4):

L.R. v. State of Indiana (NFP)

Keland L. Brown v. State of Indiana (NFP)

Torin Herbert v. State of Indiana (NFP)

Keytron W. Johnson v. Sate of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 06, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Delaware County courts' new social media policy discussed

Updating this ILB entry from Sept. 5th, which includes a link to the Sept. 1st story headed "Delaware Circuit Court adopts social networking policy," here is a long column today in the Muncie Star-Press, by Roysdon & Walker, covers some reaction to the two-page social media policy, which was signed by all five Delaware Circuit Court judges. The article is headed "Judges accused of ignoring Constitution." Some quotes from p. 2 of the article:

County Clerk Steve Craycraft's letter to his workers on in-office Internet rules, distributed two days after the judges issued their policy, is far more concise and, to most readers, likely seems far less foreboding.

Clerk's office employees are directed to not access social network sites such as Facebook "during working hours," including breaks or lunch.

"If you use these types of social sites after hours, please do not say anything or put anything on the site that might bring embarrassment to the clerk or the county," Craycraft added.

While the judges now prohibit their employees from sending or receiving cell-phone text messages while at work, Craycraft asks his workers to "please limit the use of cell phones," both in placing calls and texting.

The clerk acknowledged that personal emergencies, or a need to otherwise communicate with a "spouse or significant other," might require the use of a cell phone.

"That is fine," he wrote. "Just use discretion and good judgment."

Posted by Marcia Oddi on Tuesday, September 06, 2011
Posted to Indiana Courts

Ind. Law - More on "New law means students in country illegally now have to pay out-of-state tuition"

Updating this ILB entry from Sept. 4th, quoting an Indianapolis Star story from August 31st, the Star has this editorial this morning -- some quotes:

From the evidence, Hoosier taxpayers weren't taking much of a hit by allowing in-state tuition for undocumented college students.

Sayra Perez is taking it now. She's among about 300 young people, out of approximately 340,000 enrollees in Indiana's public colleges, who will be charged the much higher out-of-state tuition now that they've signed affidavits affirming they are not citizens.

Perez paid $3,200 per semester for a full load at Indiana-Purdue University, Indianapolis last year. This year, on the strength of her $7.50-an-hour job and help from her mom, she hopes to muster $4,500 for just two courses.

Tough rocks? That was the message from the legislature and governor earlier this year, as a sweeping law was enacted to combat illegal immigration.

Caught in the net were students such as Sayra Perez. Her story is typical. Born in Mexico, she was brought here as a 5-year-old and has hit the books, attaining higher education in pursuit of a biochemistry degree. She was ineligible for financial aid even before the new law, and will not have an easy time finding work given her immigration status if she's able to finish.

If money does force such people to cut short their education, who loses? The reality is, they will remain here, they will be less productive than they might have been, and they will be far less enthusiastic about contributing to the society they wish to fully join. The state of Indiana, out of understandable frustration with federal immigration policies, will have penalized itself.

Posted by Marcia Oddi on Tuesday, September 06, 2011
Posted to Indiana Law

Ind. Gov't. - Clarksville officials look at options to avoid public meeting

Interesting item in the Sept. 2nd News & Tribune, reported by David Mann. From near the end of the story, headed "Clarksville courting health care prospects at Colgate site:"

The Colgate plant, which once employed about 1,500, closed its doors at the end of 2007, after the company moved operations to Mexico and Tennessee. The building has sat empty since then, though speculation about the property has been particularly high this year, as it was purchased in January by a development group.

As all that’s taken place, the plant has remained steeped in mystery. And that was the case on Thursday night.

At one point, Redevelopment Director Rick Dickman even discussed ways in which negotiations between the town and the prospects could be kept behind closed doors, rather than during public meetings.

Dickman sought outside consulting on the subject from Ice miller, an Indianapolis legal firm. During Thursday’s meeting he read a memo he’d received from the firm. It advised that the commission could have a “gathering” — as opposed to holding an official meeting — to discuss industrial or commercial prospects, so long as they reach no conclusion or offer public financial resources. According to the memo, this could be done without any open door law notice and without any limitation on the identity or the number of people attending.

A second option would be for officials to meet in executive session for the purpose of conducting interviews and negotiation with industrial or commercial prospects. That would require notice.

The commission made no decision to exercise either option. Dickman said both options were recent additions to the Indiana open door law. The News and Tribune will seek independent verification of those changes.

The town wouldn’t have to negotiate unless the prospects wanted something, Dickman said. He declined to give specifics on what that might be but said some funding mechanisms were being sought. Wilson indicated the prospects are also working with state economic development officials, as well.

[More] A reader sends this interesting note:
That closed Colgate Plant was once the Indiana State Prison (as one member of the Indiana Constitution Convention stated, "the worse possible place to put children...thus Article 9, Sec. 2 of the Indiana Constitution creating The Indiana Boys' and Girls' Reform Schools). I remember my Grandmother telling me her parent's used to take her there after church on Sunday's for a picnic and to watch the hanging(s).

The old Indiana Prison was also mentioned in an Indiana Court of Appeals decision Ratliff v Cohen (No. 49A02-9611-CV-739), specifically citing the transcript from the Indiana Constitutional Convention in Corydon:

Mr. LOCKHART: "I have often been pained to see the youth, the mere boy, branded as a felon, under our laws, and sent for a series of years to that worst of all prisons in the United States-the Jeffersonville State prison."

Posted by Marcia Oddi on Tuesday, September 06, 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 Monday, September 5th, 2011:

From Sunday, September 4, 2011:

From Saturday, September 3rd, 2011:

Posted by Marcia Oddi on Tuesday, September 06, 2011
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

Next Thursday, September 8th

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

Thursday, September 15th

Webcasts of Supreme Court oral arguments are available here.



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

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

Next Wednesday, September 14th

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

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


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

Posted by Marcia Oddi on Tuesday, September 06, 2011
Posted to Upcoming Oral Arguments

Monday, September 05, 2011

Environment - More on "Peppermint farmers from LaPorte, Starke and Pulaski counties just want to be left alone to grow mint and distill its oil"

Updating this ILB entry from Sept. 1, the ILB has looked a little further into the issue.

Last year the General Assembly considered HB 1451, a bill which, as introduced, would have amended IC 13-17-3-4.5, a section relating to air pollution control, by adding a new subsection stating:

(i) A mint distilling operation is considered a farming operation as that term is defined in 326 IAC 1-2-28.
The bill was amended in House Committee to turn it into a study committee bill. With modifications, that is how it passed. HEA 1451, now designated as PL 57-2011, is a temporary, noncode act that reads:
(a) Before January 1, 2012, the environmental quality service council [EQSC]established by IC 13-13-7-1 shall do the following:
(1) Conduct a study on the following subjects:
(A) The actual and potential air emissions created by the distillation of mint.
(B) Whether the distillation of mint should be considered a farming operation (as defined in 326 IAC 1-2-28) for the purpose of requiring a permit under IC 13-17.
(2) Prepare a report on the subjects under subdivision (1) and advise the department of environmental management on the feasibility of establishing permit requirements for mint distillation operations under IC 13-17.
(b) The department of environmental management may not impose any permit requirements under IC 13-17 for mint distillation operations before receiving the report and recommendations from the environmental quality service council.

(c) This SECTION expires January 1, 2012.

The EQSC met August 30th to hear testimony from IDEM and from the mint growers. That is the meeting written up in the NWI Times story quoted in this ILB entry from Sept. 1st.

Looking for more background, I found that the EQSC is now archiving videocasts of its hearings! Wonderous! I watched the portion of the videocast of the mint growers, and you can too, at this link. It is the first topic covered and lasts a little over one-hour. Here is the meeting agenda, IDEM Commissioner Tom Easterly speaks first, followed by four mint farmers. (My overall reaction is that the IDEM presentation gives invaluable insights into the posture of the regulatory agency under Gov. Daniels.)

I took notes of Comm. Easterly as I watched, they are somewhat sketchy:

This started with nothing to do with air -- it was a water complaint, unpermitted discharge of high temperature water. The farmer took measures to reduce the output to 90 degrees, IDEM sent an NOV saying he needed a water discharge (NPDES) permit. [ILB: This is the Sept. 28, 2010 NOV originally posted in this Sept.1, 2011 ILB entry.] The farmer didn't sign the proposed agreed order until just this month. [The ILB now has obtained a copy of the AO, it is discussed below.]

Easterly continues: "Unfortunately USEPA brought criminal charges -- for the publicity, gross misuse of resources ..."

Now the State is all okay on the water, but because the water [ILB: which is used for steam extraction of the oil from the mint leaves] is heated with a boiler, there are air emission issues.

Easterly states that you can define it as a "farm operation" for state purposes, as the legislation attempted, but that won't affect the feds -- if you just exempt by state law, they are still stuck with the feds.

Easterly said IDEM was trying to get air emission data on the farms, but doesn't have it yet because the two-month mint extraction "season" is right now. Further, he noted that air emissions are normally calculated on a "potential to emit" (PTE) basis -- the assumption that the process is running 24/7, 365 days a year, not seasonally. If the PTE is below a certain level, then the entity would be exempt from regulation. Above that level, in the permitting document itself the permittee would agree to limit actual emissions to a certain level (by agreeing to operate only 8 hours/day, or only 8 weeks/year, for example) -- this adds enforceability to the process.

Easterly concluded by again stating: "Don't define them as farm operations (and thus exempt from IDEM reach) because then the growers are stuck" insofar as USEPA enforcement is concerned.

The mint farmers' testimony, however, was uniform in the position that mint extraction was a "farm operation" and needed to be defined as such.

So that is where we are right now:

___________
Finally, IDEM has offered the ILB this additional background regarding the State's NOV and AO (although this is pretty much covered above):

Posted by Marcia Oddi on Monday, September 05, 2011
Posted to Environment | Indiana Government

Ind. Gov't. - "The Indiana Department of Child Services is under fire for returning more than $100 million to the state, a savings that some argue has come at the expense of Hoosier children."

That is the lede to this story Sept. 2nd by Indy 6News.

Posted by Marcia Oddi on Monday, September 05, 2011
Posted to Indiana Government

Ind. Courts - New court sought; new programs proposed

"New court for families sought: County awaits state decision on grant application" is the heading of a story by Mary Kate Malone in the South Bend Tribune. Some quotes:

SOUTH BEND - St. Joseph County is vying for a piece of $300,000 in state grant money that would support a new court for local domestic violence cases.

The county's application is one of 29 the state is considering for the Family Court Project, which provides grant money for courts designed for families and children.

St. Joseph Circuit Court Judge Michael Gotsch submitted the grant application to the State Court Administration several weeks ago and expects to hear back by month's end.

The new court would serve as a “one-stop shop” for domestic relations cases. A victim would go before the same judge for protective orders, child support claims, and perhaps eventually, criminal allegations of domestic battery.

Currently, a victim or family could have several cases pending before multiple judges, so each judge only knows part of the family’s story.

The new court, Gotsch said, would allow for a more responsive judiciary.

"This is more in tune with the victims," Gotsch said. "I think our main concern is responsiveness and service to these vulnerable individuals, both women and children, who are typically victims of family violence. "

"Judge plans probation alternative" is the heading to an editorial yesterday in the Fort Wayne Journal Gazette. Some quotes:
Allen County’s newest Superior Court judge plans to start a program next month that, if successful, will help in lowering Indiana prison costs and deterring minor offenders from becoming major criminals.

Judge Wendy Davis’ HOPE program – Hoosiers Opportunity Probation with Enforcement – fits well with Gov. Mitch Daniels’ efforts to deal with non-violent, minor offenders at the county level and reserve state prisons for serious criminals.

The program addresses a hole in Indiana’s probation system. When offenders commit minor probation violations, such as missing appointments or testing positive for marijuana, probation officers essentially have only two choices: A stern talking-to or seeking to revoke probation, which takes weeks and sends the offender back to state prison.

Davis is proposing the equivalent of a judicial intervention. If a criminal violates probation, she will immediately send the violator to the Allen County Jail for three days, a quick punishment for bad behavior. “You lock them up for three days, it gets their attention,” Davis said.

Posted by Marcia Oddi on Monday, September 05, 2011
Posted to Indiana Courts

Courts - "Cooking School Owners May Soon Eat Losses"

A very brief story this morning on NPR's Morning Edition reports:

Many people dream of becoming chefs. Some have gone to the California Culinary Academy or other Le Cordon Bleu cooking schools. And now former students are suing. They claim school recruiters misled them about their job prospects after graduation. The school's parent company has now agreed to offer millions of dollars in rebates to students: $20,000 each.
However, it may be that the suit currently is limited to California, according to this long AP story by Terence Chea the ILB located in the San Francisco Chronicle that begins:
Food enthusiasts have been enrolling in culinary school in growing numbers, lured by dreams of working as gourmet chefs or opening their own restaurants.

For many graduates, however, those dreams have turned into financial nightmares, as they struggle to pay off hefty student loans and find work in a cutthroat industry known for its long hours and low pay.

Now, some former students are suing for-profit cooking schools to get their money back, saying they were misled by recruiters about the value of culinary education and their job prospects after graduation.

"They just oversold it and pushed it. They made misleading statements to lure you in," said Emily Journey, 26, a plaintiff in a class-action lawsuit against San Francisco's California Culinary Academy, part of Career Education Corp.'s chain of 16 Le Cordon Bleu cooking schools.

Journey, however, may get some of her money back. Under a pending $40 million settlement in state court, Career Education has agreed to offer rebates up to $20,000 to 8,500 students who attended the academy between 2003 and 2008.

Posted by Marcia Oddi on Monday, September 05, 2011
Posted to Courts in general

Courts - "Is it Unethical for Judges to be Facebook 'Friends' With Lawyers who Appear Before Them?"

Updating these two earlier ILB entries:

Law - "Social media emerges as battleground for protected speech at work"

From Ameet Sachdev's Chicago Law, a Chicago Tribune blog, this long, must-read article today -- some quotes:It's easy to understand why no business would want employees griping about working conditions on Facebook. Yet, employers are getting into trouble for regulating...

Posted in The Indiana Law Blog on September 2, 2011 10:06 AM

Ind. Courts - Delaware Circuit Court adopts social networking policy

Here is the two-page policy, signed by all five Delaware Circuit Court judges. It begins:The code of Judicial conduct requires judges to avoid both impropriety and the appearance of impropriety. Judges may not engage in activities that would undermine the...

Posted in The Indiana Law Blog on September 1, 2011 10:16 AM

The Volokh Conspirary here sets out the text of Oklahoma Judicial Ethics Advisory Panel opinion 2011–3, accompanied by the blog's reader comments. And here is an interesting followup by another Volokh professor.

Posted by Marcia Oddi on Monday, September 05, 2011
Posted to Courts in general

Ind. Gov't. - "Indiana’s gambling enforcers stay busy: Special unit hunts bookies, animal fights, charity abuse"

That was the headline to this story yesterday in the Fort Wayne Journal Gazette, reported by Niki Kelly. It begins:

INDIANAPOLIS – You might want to hedge your bets before you call your bookie or get cozy with a professional underground poker game.

Indiana is one of only a few states to have a special police unit scouring the state for illegal gambling, and they’ve been busy.

Overall, the gaming control division has investigated cases in several dozen counties and arrested more than 40 people on more than 80 gambling-related criminal charges since July 2009.

The cases include several animal-fighting rings, multiple sports-bookmaking operations, some charity gaming violations and more.

Allen County leads the state with 11 gambling-related arrests, including for promoting professional gambling and corrupt business influence.

“I’m very pleased,” said Ernest Yelton, executive director of the Indiana Gaming Commission. “We have been more active in enforcing the criminal gambling statutes than in the past.”

That’s because until 2007, that work was essentially left to local police struggling with limited resources. But lawmakers created the division that year to crack down on illegal gambling in exchange for adding thousands of slot machines at the state’s two horse racing tracks.

So at a time when state funding has been slashed – even for education – the gaming control division of the Indiana Gaming Commission spends about $1 million a year on 16 fully trained law enforcement officers assigned to attacking illegal gambling in all its forms. The money comes from charity gaming fees.

More from the long story:
Now the group of officers is breaking up high-stakes poker games; dogfighting rings and sports-betting operations.

For instance, in Allen County last year, a gaming commission investigation led to the arrest of five men for their roles in a longtime poker den. All five have since pleaded guilty and received suspended sentences or probation.

Yelton made clear that the division isn’t taking down personal poker games in someone’s garage or basement.

But when the person running the game – aka “the house” – starts taking a cut of every bet, it becomes illegal professional gambling.

Occasionally the gaming control division gets involved with entities that run charity gaming events. But only if the violations are an abuse of charity gaming law as opposed to innocent mistakes.

For instance, three people were arrested this year and charged in Kosciusko County for using a VFW Post in Warsaw to run a poker room.

One man, who was not a member of the post, was allegedly being paid by the VFW to run the operation, including bringing in dealers from Fort Wayne and “raking” 10 percent of each pot of money. These are violations of charity gaming rules.

Posted by Marcia Oddi on Monday, September 05, 2011
Posted to Indiana Government

About this Blog - Happy Labor Day

And apropos of that, I just noticed that the ILB is approaching its 20,000th entry!

Posted by Marcia Oddi on Monday, September 05, 2011
Posted to About the Indiana Law Blog

Sunday, September 04, 2011

Ind. Courts - "Just months after the Evansville Bar Association unveiled the restored superior courtroom inside the Old Courthouse in Downtown Evansville, it is at risk for water damage"

Some quotes from the story today in the Evansville Courier & Press, reported by Richard Gootee:

The potential problem was first discovered a couple months ago because there were already signs of leakage in another one of the restored spaces, the probate courtroom. That room, which can be rented for special events is on the opposite side of the facility, which originally opened in 1891.

“When we got in the attic we discovered ... that it was these joints in the masonry where the water was going in,” said Mike Shoulders, the principle architect of the restoration project. “It wasn’t pouring into the probate room but what we concluded is it was getting the plaster wet and once it gets wet it can start to flake and detach.”

So far, the damage from the leaking water isn’t too costly, but the problem needs fixed before it causes more problems in that room, he said.

“It’s not damage that is causing major expense to the county yet, but if it’s not addressed in short order every time it rains we risk losing this plaster scroll work,” Shoulders said.

Coures said no water has gotten into the superior courtroom, which the bar association renamed after current Indiana supreme court Chief Justice Randall Shepard — an Evansville native — during a ceremony in April, which marked the group’s 100th anniversary. The bar association raised more than $300,000 for the project.

“We know there has been some water around the superior courtroom,” Coures said. “But it hasn’t gotten in the plaster yet so we are trying to stop that before it happens.”

Posted by Marcia Oddi on Sunday, September 04, 2011
Posted to Indiana Courts

Ind. Gov't. - "Pastime case delayed pending New Albany appeal of preservation case"

A brief story by Daniel Suddeath in the Sept. 1 New Albany News & Tribune:

The New Albany Historic Preservation Commission and the City of New Albany are challenging a judge’s ruling allowing Bradford Realty to keep vinyl siding on its building at 222 E. Fourth St.

Last month, Special Judge Daniel Moore ruled the commission’s denial of a Certificate of Appropriateness for Bradford Realty was invalid due to lack of proper notification procedures.

Moore ruled the city and commission didn’t inform Bradford Realty owner Ron Craig his building was in a historic preservation district prior to the placement of vinyl siding on the building in 2008.

The case will now be heard by the Indiana Court of Appeals. A second, similar case involving Pastime Grill & Pub has now been stayed, meaning no action will occur until the Indiana Court of Appeals rules on the Bradford Realty decision.

Pastime Grill owner Grant Rickard is also claiming he wasn’t properly notified by the commission that his business was located in a historic preservation district prior to window replacements and building upgrades he footed for the structure in 2008.

A bill in the 2010 General Assembly, SEA 177, would have outlined an appeal procedure from the Indianapolis historic preservation commission. The bill, authored by Sen. Pat Miller, was not passed, but resulted in a legislative study.

Worth reading is this long and detailed article in Indianapolis Urban Times on subsequent actions.

Posted by Marcia Oddi on Sunday, September 04, 2011
Posted to Indiana Government

Ind. Courts - "Gibson attorney pleads guilty to pornography, obstructing justice charges"

For background start with this ILB entry from Feb. 9, 2011. Mark Wilson of the Evansville Courier & Press reported late Sept. 2nd:

PRINCETON, Ind. — Gibson County attorney William Wallace III will be sentenced to home detention and probation on charges of obstructing justice and possessing child pornography.

Wallace appeared Friday in Gibson Superior Court with his attorney, Scott Danks, where he pleaded guilty to the felony charges in a plea agreement that called for an 18-month sentence on each count, to be served at the same time.

The agreed-on sentence includes 90 days of electronic home detention with the rest to be served on probation. Wallace could have received up to three years in prison, however 18 months is the recommended sentence under state guidelines. He will also do 50 hours of community service, pay a $250 fine and seek evaluation and treatment for sexual or Internet pornography addiction.

In return, special Prosecutor Jonathan Parkhurst agreed to drop misdemeanor charges of patronizing a prostitute and false informing, and to convert the felony convictions to misdemeanors on his record if he successfully finishes his sentence. Possession of child pornography is not a crime that requires registering as sex offender. * * *

"As a lawyer, I'm ashamed that someone who is practicing law and defending people accused of crimes would engage in this type of activity," Parkhurst said.

Wallace's conviction information will be sent to the Indiana Supreme Court's Disciplinary Commission.

"He fled his home with the evidence and ultimately we found child pornography on his computer. I would expect that at a minimum he would be suspended," Parkhurst said.

In October, Danks had sought to have a fifth class D felony charge of voyeurism, filed by Parkhurst in addition to the indictment, dismissed. Penrod denied the motion, and Wallace appealed that decision to the Indiana Appeals Court.

As part of the agreement on Friday, Wallace agreed to plead guilty to it if the court decided not to hear the appeal.

The Princeton Daily Clarion has this story, dated Sept. 2nd, reported by Andrea Howe.

Posted by Marcia Oddi on Sunday, September 04, 2011
Posted to Indiana Courts

Ind. Law - "New law means students in country illegally now have to pay out-of-state tuition"

Andrew Scoggin of the Indianapolis Star had a long, well-worth reading story August 31st - some quotes:

House Bill 1402 and Senate Bill 590, adopted in the last General Assembly, take away in-state tuition eligibility from students "not lawfully present" in the country; the Senate bill also eliminated any state or local aid or scholarships for these students.

The laws are necessary, supporters say, because undocumented students divert resources from legal residents.

With college classes starting up this week across Indiana, it's now adjustment time not only for undocumented students such as Perez, but for the universities as well. For some state colleges -- particularly Indiana University and Ivy Tech Community College, which previously allowed undocumented students to pay in-state tuition -- it means making changes to their policies.

For undocumented students, it means figuring out a way to pay tuition rates significantly higher than what they paid last year.

"Considering that a lot of these kids are first-generation college kids, even paying in-state tuition is a problem for some," said IU-Bloomington spokesman Mark Land. "These kids are being put in a challenging spot."

Indiana is one of six states, and the most recent, to bar undocumented students from getting the resident tuition rate. Others include Arizona, a state known for its strict anti-immigration laws.

Twelve states, including Texas, California and Illinois, allow undocumented students to get in-state tuition under certain requirements, such as graduation from a state high school and a certain number of years of residence in the state.

The rest don't have laws specifically mentioning tuition for undocumented students, although a 1996 federal law generally prohibits states from allowing them to pay in-state rates. However, that position has been weakened by court rulings declined for review by the U.S. Supreme Court.

Posted by Marcia Oddi on Sunday, September 04, 2011
Posted to Indiana Law

Ind. Decisions - More on: Mistrial in Allen County cases after two mistakes by prosecution

Updating this Sept. 1st ILB entry quoting a story by Rebecca S. Green of the Fort Wayne Journal Gazette, Ms. Green reported on Sept. 2nd in this lengthy story:

After a pair of prosecutorial errors brought the murder case to an end Wednesday with a mistrial, Surbeck entertained arguments Thursday about whether he should dismiss the case if he found the prosecutors' behavior had been intentional or negligent. A dismissal would have resulted in Washington's release from custody, something his family clearly anticipated.

After the hearing's dramatic ending, which created a mistrial in an unrelated case because of the disturbance, it appeared the relationships between the police and prosecutors and between prosecutors and defense attorneys might have been damaged.

But by the end of the day Thursday, those involved promised to work together and expressed hope that the relationships, necessary for the courts to work, would heal. * * *

Not long after Washington's trial got under way Tuesday, it was revealed that deputy prosecutors Tom Chaille and Christine Neilson never told defense attorneys Michelle Kraus and William Lebrato that the timestamp on security camera footage was off by an hour.

The mistake was attributed to the McCormick Place apartments' information technology staff's failure to switch the cameras back from daylight saving time.

Surbeck cautioned the prosecutors and called a recess in the trial to allow Kraus and Lebrato time to re-interview witnesses, and the trial resumed again Wednesday morning.

During testimony Wednesday, it was revealed that a ballistics report, which eliminated a potential murder weapon – and, to the defense, an alternate theory of the crime – had also not been turned over to the defense.

Surbeck granted a request for a mistrial and scheduled Thursday's hearing. Under local rules governing court procedure, prosecutors share information freely with defense attorneys to allow them to better advocate for their clients.

At Thursday's hearing, Surbeck described a "downward spiral" in the way prosecutors and the defense attorneys work together of late.

Kraus made an impassioned plea for the dismissal, arguing that the two incidents in the Washington case were recent examples in an ongoing problem defense attorneys have had in getting information from the Allen County Prosecutor's Office.

"We are constantly finding ourselves, at the last minute, handed things that help us defend our clients," Kraus said. "Mr. Washington has been denied fundamental fairness.

"At some point, enough is enough. Justice will not prevail if we retry him," Kraus said. "Please dismiss the case."

Richards vehemently defended her office and the attorneys handling Washington's prosecution.

"I'm not going to tell you we didn't make mistakes because we did," Richards told Surbeck.

She said while the mistakes in the Washington case were solely those of her office, it has become increasingly difficult lately to get timely information from police agencies on developments in specific cases.

Prosecutors now have to check with police on all of their cases more frequently than they used to, as opposed to having the officers forward information immediately, Richards said.

"This is a system that doesn't have enough money or enough people. We've been addressing these issues," Richards said. "To give (Kraus) what she wants, you have to find two really good prosecutors acted dishonestly. … People make mistakes. I will do my absolute best to make sure this doesn't happen again."

After hearing their arguments, Surbeck declined to dismiss the case against Washington but told the prosecutors that what happened in the case was wrong.

"My opinion is that the way we do this has been deteriorating," Surbeck said. "It is clear to me these lawyers violated the working rules. I'm not talking 'fancy terms'; … very simply, respected counsel had an obligation."

After Surbeck announced his ruling, Washington's family became extremely emotional. One woman called the judge the devil, saying he was going to go to hell for his ruling. The group refused repeated orders by the bailiffs to leave quietly and carried on with chants and shouts throughout the entire building for about 10 more minutes.

Their disturbance was so great that it upset potential jurors being interviewed in another courtroom, causing Allen Superior Court Judge Wendy Davis to declare a mistrial in the case.

Today a third story by Ms. Green on the mistrial.

Posted by Marcia Oddi on Sunday, September 04, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Law - Hammond may revisit gun ordinance in light of law suit

Steve Zabroski reports in the NWI Times -- some quotes:

With Hammond already facing one lawsuit over its restrictive gun laws, the sponsor of last month's failed measure to bring city ordinances into compliance with a looser new state law says she'd be willing to try again.

As of July 1, a state statute regarding where a lawful firearm may be carried formally replaced all local laws, and provided a legal means for residents to contest most local restrictions beyond those contained in the state law.

Many communities, including Indianapolis, Kokomo, Jeffersonville and Plainfield, quickly acted to amend or repeal their gun ordinances, as mandated by the state statute.

By an 8-1 vote, the Hammond City Council on Aug. 22 rejected an ordinance written by City Attorney Kristina Kantar which would have harmonized decades-old city laws with the new state statute.

Barely one week later, a Zionsville attorney filed a class-action lawsuit on behalf of a Hammond grandmother and a student at Purdue University Calumet in Hammond against the city, alleging that his clients were "adversely affected" by the now-illegal city ordinances. * * *

The existing Hammond ordinances, written in response to a 1991 murder-suicide inside City Hall, prohibit carrying firearms in municipal buildings and in city parks.

The new state law allows communities to bar lawfully carried firearms only in buildings which house a courtroom.

Nobody has been questioned, arrested or cited based on the old city laws since July 1, according to Hammond police, but that's not the issue, said Guy A. Relford, the attorney who filed the class-action lawsuit.

"The point is, the ordinances are still on the books, and if they're still on the books, the city can attempt to enforce them at their whim," Relford said. "The only way for the citizens of Hammond to be assured that the illegal ordinances won't be enforced is to take them off the books." * * *

"The General Assembly . . . didn't just say that our laws were superseded," Kantar said to the City Council in support of the failed ordinance. "It made the affirmative duty of all municipalities with an ordinance in conflict to repeal or amend."

The Indiana Association of Cities and Towns, an organization which represents the interests of state municipalities, recommended just such actions to member communities this summer to avoid being sued.

"We need to safeguard ourselves from any more lawsuits over this," Poland said. "The proposed new ordinance would only change a few paragraphs of the municipal code."

Dykstra and Bahus are seeking unspecified damages, including triple attorney fees, and amendment or repeal of the existing Hammond gun ordinances in their lawsuit, which has been assigned to Lake Superior Court Judge Jeffrey Dywan's courtroom.

Poland said she would like to again bring the measure before the City Council, "But if I don't have the votes, I don't have the votes," she said.

A new law in the state of Florida which goes into effect Oct. 1 provides for judgments of up to $100,000 against local governments which haven't brought their gun ordinances into compliance with state law, and recalcitrant local officials can lose their jobs and face fines of $5,000.

Posted by Marcia Oddi on Sunday, September 04, 2011
Posted to Indiana Law

Ind. Courts - Deaths, retirements

J. Patrick Endsley, United States Magistrate Judge, Retired, died Sept. 1, 2011.

Delaware Circuit Court 2 Judge Richard Dailey, the longest serving of Muncie and Delaware County's current elected officials, is retiring effective Oct. 15.

Posted by Marcia Oddi on Sunday, September 04, 2011
Posted to Indiana Courts

Ind. Courts - More on "Richmond Republicans and Democrats joined forces Thursday seeking to halt a revised state law that would leave unopposed candidates off the ballot this fall"

Updating this ILB entry from Friday, Sept. 2nd, here are a number of stories:

An editorial from the Evansville Courier & Press dated Aug. 30th, headed "Removing unopposed candidates from city election ballot is a truly silly law." Some quotes:

The bill's sponsor, Kathy Richardson, R-Noblesville, said this way would be more efficient and would save counties money by removing unopposed candidates' names from the ballot. In our view, that's the silly part, unless you have a municipal election somewhere where no candidates have opposition, and that's not likely. Otherwise, the change cannot save much money by removing only a few words from a ballot.

We are more concerned about those races in which a popular, but unopposed candidate, is not on the ballot. Voters drawn to that candidate might just stay home, sapping support for other candidates of the same party. * * *

Vanderburgh County Clerk Susan Kirk, who runs local elections, said the majority of county clerks in the state believe the new provisions should have been optional for each county. That makes more sense than the silliness forced on municipal elections this year. Hopefully, we will see a change in the next legislative session.

Bill Engle reported Sept. 3rd in in a long story in the Pal-Item:
Local political leaders are hoping for a quick legal decision in their efforts to stop the Wayne County clerk from dropping unopposed candidates from the ballot this fall.

County Clerk Jo Ann Stewart is following amended Indiana Code 3-10-6-7.5 in striking the names of unopposed candidates for Richmond Common Council in the Nov. 8 election.

The code reads in part, "An election may not be held for a municipal office if: There is only one nominee for the office or only one person has filed a declaration of intent to be a write-in candidate under IC 3-8-2-2.5." The law took effect July 1.

Wayne County Democrats and Republicans filed an injunction Thursday to stop the names of unopposed candidates -- Democrat Kelley Cruse-Nicholson in District 2, Republican Clay Miller in District 4 and Republican Larry Parker in District 6 -- from being eliminated from the ballot.

The case was assigned to Wayne Superior Court 2 and a preliminary hearing has been set for 9 a.m. Friday. [ILB: Sept. 9th?] * * *

A.J. Feeney-Ruiz, spokesman for the Indiana Secretary of State's office, declined comment on the issue.

"We have to defer judgment to the (Indiana) Attorney General's Office," he said. "This is a constitutional issue and is really a question for the solicitor general."

The Pal-Item also had an editorial today headed "General Assembly should fix ballot: Unopposed races should be listed, but it's up to legislators to correct the mistake, not the courts." Some quotes:
Indiana municipalities should list all candidates on the ballot who are seeking election, including those facing no opposition.

Whether it should do so as a matter of historic record as opposed to constitutional right could determine if the matter is settled by the legislative as opposed to judicial branches of government under our system of separated and balanced powers. * * *

The argument for listing those names of unopposed municipal candidates, as we said at the outset, is a legitimate one of historic record; a record that cumulatively and increasingly shows intolerable apathy and a diminishing accountability where issues are not debated and incumbents are not required to defend against challenge the records of their previous term.

And that, frankly, is where the political parties, where all of us, should be directing our collective, corrective concerns and energies in order to advance the competition of ideas by contesting elections at every level of government.

Pam Tharp reported Sept. 3rd in the Richmond Palladium-Item under the headline "Suit surprises other clerks: Union, Fayette officials planned to leave off names." Some quotes:
Area county clerks were surprised Friday when they learned Wayne County political parties and candidates had filed suit over a new Indiana law allowing candidates for non-contested offices to be left off ballots. * * *

The lawsuit in Wayne County questions how candidates can be elected if nobody votes for them, but that apparently already happens when Indiana towns don't have elections.

Union County Clerk Susan Ray said no ballots will be ordered for West College Corner's town offices. The town won't have an election because no candidates are opposed, she said.

There won't be an election in Glenwood either, the only incorporated town in Fayette County, because all candidates are unopposed, Fayette County Clerk Melinda Sudhoff said. Indiana towns haven't been required for decades to have elections when all races are unopposed. * * *

Some of the controversy about the new law stems from its language, Sudhoff said. The law says unopposed candidates' names "may not" be placed on the ballot, Sudhoff said. In Indiana, "may" is used when there's a choice, with "shall" the language that imposes a requirement, she said.

"I haven't really gotten any feedback from our candidates about this. I talked with Dale Simmons with the Indiana Election Commission, and on his advice, I'm not putting the unopposed candidates on the ballot," Sudhoff said.

Many county clerks have questions about the new law and numerous emails are flying back and forth to state election officials and clerks, Sudhoff said. Ray said she's not certain if the new rule applies to all elections or just city and town elections.

Finally, Rod Spaw reported Sept. 3rd in the Bloomington Herald-Times:
There won’t be an election this November in Ellettsville or Stinesville after all, but Monroe County Clerk Linda Robbins said she still intends to list the names of every candidate for office in Bloomington, even if they face no opposition.

The Election Division of the Indiana Secretary of State’s office has advised clerks not to include the names of unopposed candidates on ballots for the municipal elections on Nov. 8, due to a change in state election law that went into effect July 1.

A check with county clerks in central Indiana indicates Robbins may be in the minority, but she is not alone. The Marion County Election Board reported it also will be including the names of unopposed candidates on ballots there this fall. * * *

At issue is a change made by this year’s Indiana General Assembly that stated an election “may not” be held for a municipal office if there is only one nominee for that office. Previously, the names of uncontested candidates appeared on ballots when there was at least one contested race available to all voters in a municipal election.

Robbins interprets the words “may not” to permit discretion, even though the General Assembly’s official drafting manual says that the words “may not” means to “negate discretionary authority.”

The two co-directors of the state Election Division — Republican Brad King and Democrat Trent Deckard — have offered different opinions about the law. King has said the clerk can’t act contrary to state law; Deckard has said the law is open to interpretation.

The division’s official advisory to clerks this year was that uncontested candidates could not be listed this year, and that is what clerks contacted by The Herald-Times are doing, even if they don’t like it.

“I can only go by what the state code allows us to do,” said Lawrence County Clerk Myron Rainey. “It’s just code, pure and simple. It’s state law.”

Notably, Reporter Spaw also had a lengthy August 23rd story in the $$$ H-T headed "County clerks disagree over whether state law allows elections in uncontested races: Mooresville to not have election; ballot plans still on for Ellettsville." From the section on the Indiana Election Division position:
The Indiana Election Division has two co-directors who are nominated by the majority political parties and appointed by the governor. While agreeing on how the division interpreted the statute, they disagreed on whether Robbins can go a different direction.

“There is no home rule in election law,” Brad King, the Republican co-director, wrote in an email to Judith Smith-Ille, Republican member of the Monroe County Election Board. “If there are no opposed candidates for any office in Ellettsville, then no election can be conducted, and no ballots printed. If candidates for the mayor and city clerk in Bloomington are unopposed, then their names may not appear on the ballot.”

Tom Deckard, the Democratic co-director, was not as absolute.

“I couldn’t say she was wrong,” Deckard said of Robbins. “I may interpret election law one way; he (King) may interpret it another way; local officials may have a third interpretation.”

Deckard and King agreed that the state has fielded calls from county clerks and candidates who are perplexed or upset by the Legislature’s actions. They also agreed that if a citizen feels local election officials are acting contrary to the law, their actions can be challenged in court.

Posted by Marcia Oddi on Sunday, September 04, 2011
Posted to Indiana Courts | Indiana Government

Friday, September 02, 2011

Environment - "Egg farms rack up violations: FDA finds unsanitary conditions, keeps key data secret"

Exhaustive investigative report by Clark Kauffman of The Des Moines Register. It begins:

One year after 1,900 people were sickened and a half-billion Iowa eggs were recalled, government inspectors continue to find unsanitary conditions and inadequate protections against salmonella on Iowa’s egg farms.

None of the violations have resulted in fines or penalties from state or federal agencies, and Iowa’s egg producers still aren’t required to tell state officials when they find salmonella on their farms.

Posted by Marcia Oddi on Friday, September 02, 2011
Posted to Environment

Ind. Decisions - Tax Court posts another opinion dated Aug. 31st

In Lyle Lacey v. IDOR, a 5-page opinion involving a pro se petitioner, Judge Wentworth writes:

Lyle Lacey previously filed two original tax appeals, one for the 2006 tax year and the other for 2007 tax year, in which he unsuccessfully argued that he did not owe Indiana adjusted gross income tax (AGIT). * * * Now, Lacey has petitioned the Court a third time regarding his 2008 AGIT liability, which is currently before the Court on the Indiana Department of State Revenue’s (Department) Motion to Dismiss for failure to state a claim on which relief can be granted. Concluding that the issues in this action are substantially the same as those decided in Lacey II, the Court dismisses this case. * * *

The issues and arguments presented in Lacey’s current petition do not materially differ from those presented to and rejected by this Court in Lacey II; therefore, the Court must uphold and adhere to its prior decisions. Consequently, the Court GRANTS the Department’s motion to dismiss in its entirety.[4]
___________
[4] During the hearing, the Department also requested an award of attorney’s fees, asserting that Lacey’s claims are frivolous. To the extent the Department still seeks such fees, it must make that request by separate motion.

Posted by Marcia Oddi on Friday, September 02, 2011
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In James Daher v. Mark Sevier , an 8-page opinion, Judge Friedlander concludes:

In the instant case, Daher’s petition for a TRO was based upon a claim concerning a
condition of his incarceration that, even if true, cannot be characterized as barbaric, or anything approaching that level of cruelty or inhumane treatment or conditions. He claims that the jumpsuits he must wear might tear, will not fit properly, and are too thin to adequately protect him from the winter cold. Without meaning to be flip, we presume that the facility in which he is housed is heated in the winter and that he will be provided with appropriate outer wear in the event he must go outside into the cold. In short, his complaint addresses matters of comfort that do not rise to the level of wanton deprivation or undue suffering. In fact, the condition of which he complains falls so far below the Eighth Amendment threshold of cruel and unusual punishment that it can fairly be characterized as a trivial complaint in that context. As such, whether denominated as frivolous or so wide of the mark that it fails to state an Eighth Amendment claim upon which relief may be granted, the trial court did not err in dismissing Daher’s petition, as permitted by I.C. § 34-58-1-2(a) and (b).

In Kirby D. Edwards v. State of Indiana , a 17-page opinion, Judge Darden writes that the trial court did not error in determining that Edwards is a SVP(sexually violent predator).

NFP civil opinions today (1):

Visitation of P.V.D. and P.I.D.; P.M. v. K.B.

NFP criminal opinions today (2):

Anthony W. Dalton v. State of Indiana (NFP)

Anthony Wheeler v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 02, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana decision today from 7th Circuit, plus a highlight

In Williams and Meehann v. Rohm and Hass Pension Plan (SD Ind., Barker), a 13-page opinion, Judge Kanne writes:

After eight years, the end is near for this dispute between the Rohm and Haas Company Retirement Plan (the “Plan”) and all Plan participants and beneficiaries who took a lump sum distribution after January 1, 1976 (the “Class”). After this court affirmed the district court’s grant of summary judgment on liability, the Class and the Plan negotiated a $180 million settlement, of which Class counsel asked for $43.5 million in attorney’s fees. Numerous Class members objected, but the district court approved the settlement and awarded the requested attorney’s fees. Some of the objecting Class members appealed, and we now affirm the settlement approval and fee award. * * *

The district judge has become intimately familiar with this litigation over the past eight years, and we are confident that she properly assessed the litigation risks facing the early retirees. Although the Adamski Objectors urge us to remand and instruct the district court to perform a more thorough risk analysis, we recognize that the best we can hope for in awarding attorney’s fees is rough justice. See In re Trans Union Corp. Privacy Litig., 629 F.3d 741, 748 (7th Cir. 2011) (“[A] remand would produce only speculative refinements . . . and would do so at a heavy cost in judicial and party resources unlikely to be offset by any benefit in greater precision, which would in any event be illusory.”). Accordingly, we see no reason to disturb the district court’s assessment of fees.

We AFFIRM both the district court’s approval of the settlement agreement and its award of attorney’s fees.

The "highlight" today, something that may become a new feature, is the 23-page opinion in this case out of Illinois, E360 Insight, Inc. v. The Spamhaus Project. Judge Hamilton writes:
The last time plaintiff e360 Insight, Inc. came before this court, we affirmed the district court’s entry of default judgment against defendant The Spamhaus Project. All that remained was for e360 to make a reasonable showing of its damages. After a bench trial on the issue, the district court awarded e360 a mere $27,002, a far cry from the millions of dollars that e360 sought. Both parties have appealed. We conclude that the district court properly struck most of e360’s damages evidence, either as an appropriate discovery sanction or for proper procedural reasons, and we reject e360’s challenges to the judgment. We also agree with Spamhaus that the evidence failed to support the modest award of $27,000 in actual damages because e360 based its damage calculations on lost revenues rather than lost profits. We vacate and remand with instructions to enter judgment for e360 in the nominal amount of three dollars. * * *

By failing to comply with its basic discovery obligations, a party can snatch defeat from the jaws of certain victory. After our earlier remand, all e360 needed to do was provide a reasonable estimate of the harm it suffered from Spamhaus’s conduct. Rather than do so, however, e360 engaged in a pattern of delay that ultimately cost it the testimony of all but one witness with any personal knowledge of its damages. That lone witness lost all credibility when he painted a wildly unrealistic picture of e360’s losses. Having squandered its opportunity to present its case, e360 must content itself with nominal damages on each of its claims, and nothing more. We VACATE the judgment of the district court and REMAND this matter with instructions to enter judgment for the plaintiffs in the amount of three dollars.

Posted by Marcia Oddi on Friday, September 02, 2011
Posted to Ind. (7th Cir.) Decisions

Courts - "Chief Justice: Courts must use Facebook, Twitter to counter 'skewing of information"

This fascinating look at use of social media is from the Sidney, Australia Morning Herald. A few quotes:

Victorian courts should take advantage of social media such as Twitter and Facebook to better explain themselves to the public, Victoria's most senior judge says.

Chief Justice of the Supreme Court Marilyn Warren has raised the prospect of judges tweeting from the Supreme Court in a bid to counter the "skewing of information" by the media.

Chief Justice Warren's comments come as a survey by the Sentencing Advisory Council shows only half of Victorians feel confident that judges are imposing appropriate sentences.
Advertisement: Story continues below

"[On Tuesday] I had a discussion with our media people as to how we can ramp up what we do and it will be our intention in the Supreme Court to use technology much more extensively," she told ABC radio.

"I've had a conversation about how we can have an anonymous judge blogging to reach out to the community, how we can use Twitter and how we can use our website in a much more effective way.

"We may have some tweeting from the Supreme Court - it will need to be done probably on an anonymous basis.

"We want to reach out, we want to communicate."

Posted by Marcia Oddi on Friday, September 02, 2011
Posted to Courts in general

Ind. Courts - "Richmond Republicans and Democrats joined forces Thursday seeking to halt a revised state law that would leave unopposed candidates off the ballot this fall"

So reports Bill Engle today in the Richmond Palladium-Item. More from the story:

They filed a lawsuit late Thursday in Wayne County court naming Wayne County Clerk of Courts Jo Ann Stewart, the Indiana Election Commission and Indiana Secretary of State Charlie White and asking that Stewart be prohibited from dropping the names of candidates in the races for the District 2 and 4 seats on the Richmond Common Council. * * *

The suit alleges that the election commission's interpretation of the law restrains the free speech rights of the unopposed candidates, disenfranchises voters by restricting their right "to vote for a candidate or not vote for such candidate" and contradicts the constitutional requirement that "all elections by the people shall be by ballot." * * *

Richmond Mayor Sally Hutton, who is county Democratic chairwoman, said, "The whole law makes absolutely no sense because it does not save any money."

"In this fall's election how can a person win if nobody votes for them?" she said. "We think it disenfranchises voters because they will become frustrated with the process if they lose another choice in the election."

Miller, a Republican candidate for Common Council, said, "The right to vote is one of our most fundamental, sacred and treasured rights as Americans."

"The change in the Indiana law requiring unopposed municipal candidates be removed from the ballot flies in the face of the right to vote and is unconstitutional," he said.

The suit also asks that a ruling be expedited since the printing of ballots for the Nov. 8 municipal election in Richmond must be done soon.

The case was assigned to Wayne Superior Court 2. A preliminary hearing is expected to be held next week.

For more, see this Aug. 18 story in the Lafayette Journal Courier, reported by Dorothy Schneider, and this August 22nd editorial in the Fort Wayne News-Sentinel.

Posted by Marcia Oddi on Friday, September 02, 2011
Posted to Indiana Courts

Law - "Social media emerges as battleground for protected speech at work"

From Ameet Sachdev's Chicago Law, a Chicago Tribune blog, this long, must-read article today -- some quotes:

It's easy to understand why no business would want employees griping about working conditions on Facebook. Yet, employers are getting into trouble for regulating social media activity.

In the past year, the National Labor Relations Board has brought at least four complaints alleging that businesses have violated labor laws that protect employees from retaliation for office chatter. One of its cases is against a BMW auto dealership in the Chicago area.

The federal scrutiny has alarmed many businesses, including nonunion employers, because the National Labor Relations Act covers most private-sector employees. As a result, businesses are carefully navigating the intersection of traditional labor law and the relatively new social media environment. * * *

The uncertainty about the legal standards for social media prompted the NLRB's acting general counsel last month to release a report detailing the outcome of investigations into 14 charges of unfair labor practices involving social media. The 14 cases are a representative sample of the more than 100 charges that have been filed with the labor board in the past year. The most common issues deal with policies that restrict use of social media or alleged unlawful disciplinary actions, including termination, over the contents of online posts.

The memo attempts to explain why the NLRB prosecuted certain charges and dismissed others. As Lafe Solomon, acting general counsel, said in the memo, "I hope that this report will be of assistance to practitioners and human resource professionals."

ILB: I have located the 24-page NLRB report; access it here.

See also this ILB entry from yesterday, headed "Delaware Circuit Court adopts social networking policy."

Posted by Marcia Oddi on Friday, September 02, 2011
Posted to General Law Related

Ind. Gov't. - More on: Goldsmith quit NYC post after being busted for domestic violence

Updating yesterday's ILB entry, Mary Beth Schneider of the Indianapolis Star has a front-page story this morning headed "Wife speaks out on Goldsmith's arrest." A sample from the long story:

In an exclusive email interview with The Indianapolis Star, Margaret Goldsmith said she called police July 30 after an argument over a "very personal and family-related matter."

"I wanted Steve to leave the house and I was too tired to deal with it by myself," she said. "Neither one of us had slept in two nights. Judgment is clouded when exhaustion sets in."

That call, though, led to Goldsmith's arrest, followed by two nights in a Washington jail, and his abrupt resignation on Aug. 4 as deputy mayor of New York.

Posted by Marcia Oddi on Friday, September 02, 2011
Posted to Indiana Government

Stage Collapse - "DeLaney wants liability cap lifted so State Fair victims get more"

The team of Tim Evans and Heather Gillers have written an outstandingly informative story this morning for the front-page of the Indianapolis Star. Some quotes:

Seven dead. More than 40 injured -- some hospitalized for weeks, others facing a lifetime of special care.

But, under Indiana law, $5 million total is the maximum that the state is obligated to dole out to the more than four dozen victims of the Aug. 13 collapse of the stage at the Indiana State Fair.

It's an equation that simply does not add up, said state Rep. Ed DeLaney, D-Indianapolis.

DeLaney said Thursday he plans to introduce a bill that would allow victims of the stage collapse to collect more from the state than the $5 million cap would allow. DeLaney said he is open to several possibilities -- possibly creating a one-time special liability cap for a specific disaster such as the stage collapse or simply raising the current overall liability cap. * * *

Indiana law caps the liability of government entities at $700,000 per victim. But more important in an event such as the stage collapse -- where there were multiple deaths and numerous other injuries -- the law also caps the state's liability at a combined total of $5 million.

Consider this: If the families of the seven people killed each received the maximum allowed under the law, those payments would eat up $4.9 million -- leaving only $100,000 to split among the more than 40 other people injured. The medical bills of just one victim who spent more than a few days in the hospital would easily eclipse that.

The bottom line is not pretty. Despite the state's pledge to pay out the liability funds as quickly as possible, the sheer number of injuries and deaths means victims and their families are not likely to receive the $700,000 maximum allowed under law. And many are likely to receive payouts far short of their actual medical bills.

But there is precedent for stepping outside the lines in the wake of a major tragedy -- both in Indiana and elsewhere.

In 1997, Gov. Frank O'Bannon and the family of 4-year-old Emily Hunt reached an agreement in which the state paid most of the medical bills incurred by Emily after she was injured in a train accident at Old Indiana Family Fun-n-Water Park near Thorntown. The deal consisted of $1.5 million from the state's tort claims fund -- more than three times the maximum at that time -- and ongoing coverage under other state programs. The accident left Emily paralyzed from the chest down.

More recently in Minnesota, after the 2007 bridge collapse that killed 13 and injured more than 100 others, the Legislature waived its existing liability cap of $1 million per occurrence. In all, the state ended up paying out a total of $38 million to victims.

None of the lawyers took any fee. * * *

Indiana is far from alone in capping state liability.

At least 33 states limit the amount a person can receive in damage claims against the state, according to a 2010 report by the National Conference of State Legislatures. Some of those states have caps as low as $1 million.

The ability to sue a government entity is a relatively new concept in America, the report notes, beginning in the 1940s with passage of the Federal Tort Claims Act. Soon after, states began enacting legislation limiting their liability.

"When the legislature passes those kinds of (liability caps), they don't really think about that kind of catastrophic event until it happens," said Carla Ferrucci, executive director of the Minnesota Association for Justice, a trial lawyers group. "What if (victims) need to have lifetime outside health-care support? And with medical bills being what they are, it's pretty easy to rack up a million-dollar medical bill." * * *

The cap on the state's liability does not preclude victims from seeking compensation from other parties, such as the company that provided the stage. * * *

But if legislatures can set caps, they also can raise them.

Faced with a $1 million cap, Minnesota state Rep. Ryan Winkler, D-Golden Valley, authored the legislative package that delivered at total of $38 million to the more than 100 people injured as a result of the bridge collapse and the families of the 13 killed. The law passed nearly unanimously -- it was signed by then-Gov. Tim Pawlenty -- and the state dipped into its reserves to make the payout.

"As a matter of basic responsibility to the public," Winkler said, "I felt, and I think most legislators felt, that it was not an acceptable outcome to hide behind that liability and just tell people to do the best they can -- 'best of luck.' "

Winkler said legislators hashed out an agreement with health insurance companies in which the companies would not try to reclaim any of the government payout to cover medical bills.

"There hasn't been a single complaint or negative word at all about the fund that we ended up setting up," he said.

Posted by Marcia Oddi on Friday, September 02, 2011
Posted to Stage Collapse

Ind. Gov't. - "Legislative panel reviewing possible state purchase of iPads for Indiana lawmakers"

That is the headline of this story today reported by Dan Carden of the NWI Times.

Also today, from the Milwaukee Journal Sentinel, this fascinating story reported by Jan Uebelherr.

[More] Columnist Jim Stingl of the MJS has an op-ed.

Posted by Marcia Oddi on Friday, September 02, 2011
Posted to Indiana Government

Thursday, September 01, 2011

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

Recall this August 25th ILB entry, along with several linked stories, about videotaping police making arrests. Here now is an Aug. 26th, 24-page 1st Circuit opinion in the case of Glik v. Cunniffe that begins:

LIPEZ, Circuit Judge. Simon Glik was arrested for using his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common. The charges against Glik, which included violation of Massachusetts's wiretap statute and two other state-law offenses, were subsequently judged baseless and were dismissed. Glik then brought this suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.

In this interlocutory appeal, the defendant police officers challenge an order of the district court denying them qualified immunity on Glik's constitutional claims. We conclude, based on the facts alleged, that Glik was exercising clearlyestablished First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause. We therefore affirm.

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Courts in general

Courts - Suit on authority of State of Washington AG to make the State "a plaintiff in a multistate lawsuit in federal court challenging the constitutionality of the health care reform legislation recently passed by Congress"

Thanks to How Appealing for spotting this decision and linking to the majority opinion and the two separately linked concurring opinions. Here is how the majority opinion of the Supreme Court of Washington in the case of the City of Seattle v. Wash. State Attorney General (Sept. 1, 2011) begins:

OWENS, J. -- The attorney general of Washington made the State a plaintiff in a multistate lawsuit in federal court challenging the constitutionality of the health care reform legislation recently passed by Congress. The city of Seattle seeks a writ of mandamus directing the attorney general to withdraw the State of Washington from the litigation. Resolution of this case requires that we determine the scope of the powers of the attorney general under the Washington Constitution and our statutes. * * *

Statutory authority vests the attorney general with the discretionary authority to participate in the litigation at issue. We also determine, however, that this result is not constitutionally compelled; the Washington Constitution does not vest the attorney general with any common law authority. It is for the people of the state of Washington, through their elected representatives or through the initiative process, to define the role of the attorney general. The power of the attorney general is “created and limited, not by the common law, but by the law enacted by the people, either in their constitutional declarations or through legislative declarations in pursuance of constitutional provisions.” State ex rel. Attorney Gen. v. Seattle Gas & Elec. Co., 28 Wash. 488, 500, 68 P. 946, 70 P. 114 (1902).

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Courts in general

Ind. Decisions - "Change in search rules doesn't free Elkhart man"

Justin Leighty of the Elkhart Truth has a story today fleshing out the details of Judge Barnes' decision August 29th in the case of Ronnie Q. Henderson v. State of Indiana. The story begins:

ELKHART - Ronnie Q. Henderson went to prison because police found drugs in his car when they impounded it in 2006.

Three years later, the U.S. Supreme Court ruled similar police searches go too far, and Henderson tried to get an appeals court to toss out his conviction. It didn't work.

The Indiana Court of Appeals this week ruled the former Elkhart man's convictions will stand because police were acting within the law as it was understood at the time.

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Ind. App.Ct. Decisions

Environment - 6 Great Lakes States make bid to split Great Lakes, Mississippi

John Flesher of the AP reports, in a story that appears here in the Gary Post-Tribune, and begins:

TRAVERSE CITY, Mich. (AP) — Six attorneys general in the Great Lakes region called for a multi-state coalition Wednesday that would push the federal government to protect the lakes from invasive species such as Asian carp by cutting off their artificial link to the Mississippi River basin.

In a letter obtained by The Associated Press, the officials invited colleagues in 27 other states to join a lobbying campaign to separate the two watersheds, contending they have as much to lose as the Great Lakes do from migration of aquatic plants and animals that can do billions in economic damage and starve out native species.

“We have Asian carp coming into Lake Michigan and zebra mussels moving out of the Great Lakes and into the heart of our country, both of which are like poison to the ecology of our waters,” Michigan Attorney General Bill Schuette said. “This is not just a Great Lakes issue. By working together, we hope to put pressure on the federal government to act before it’s too late.”

Also signing the appeal were attorneys general from Minnesota, New York, Ohio, Pennsylvania and Wisconsin. It was being sent to their counterparts across the Mississippi basin as well as Western states such as Nevada, where Lake Mead and other waterways have been infested by zebra mussels believed to have been transported from the Great Lakes by unwitting recreational boaters.

Five of the Great Lakes states are suing the Army Corps over its operation of a Chicago-area waterway network that creates an artificial pathway between Lake Michigan and the Illinois River, a Mississippi River tributary. Bighead and silver carp, natives of Asia, have advanced up both rivers and are in Chicago Sanitary and Ship Canal, where the Army Corps operates electric barriers about 25 miles from Lake Michigan to prevent species migration.

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Environment

Ind. Gov't. - Significant changes were made to zoning laws by 2011 General Assembly

A reader sent the ILB this note the other day:

Little noticed in the press (unnoticed might be a better description) were the major revisions to the Planning and Zoning statutes by the General Assembly this year. For the legal community, it is probably interesting to note that the entire appeals process (the 1600-series) has been replaced with what I have been told is more in line with the “administrative orders and procedures” process the state is subject to in legal review.

There were a significant number of other changes in the first major rewrite of the statute since 1995, including a new requirement that BZA/Plan Commission members must recuse themselves not just if they have a direct or indirect financial interest, but also if they “are biased or prejudiced or otherwise unable to be impartial” (IC 36-7-4-223[c](1)).

The legislation is HEA 1311.

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Indiana Government

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

The ILB posed some questions at the end of this entry yesterday.

This morning Secretary of state’s office spokesman A.J. Feeney-Ruiz, sent this response to the ILB:

1. Why is the Secretary of State, a state elected official, not being represented by the state attorney general?
a. The state attorney general, as I understand it, responded on behalf of the State Recount Commission (of which the SOS is the Agency of Record) in their defense of the administrative ruling.
b. The SOS has recused himself from this commission for the purposes of his hearings, but still remains the de-facto head of this commission for future re-counts – just as this office remains accountable to maintain record of this and future recount proceedings.
c. The SOS, as a candidate, requested of the SC to expedite the process.
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?
a. Ever since the State Recount Commission upheld the SOS’s candidacy and subsequent election, we have made it a policy to comment on the matters originating with and after the Recount Commission’s hearing. This was not the case before the proceedings, until the SOS went on public record in an official hearing, and continues to be the case for his court appearances in Hamilton County.
b. While I am the spokesman for the SOS, I am also the spokesman for the Office of the Secretary of State which is, again, the agency of record for recount proceedings. It was in this latter capacity that I made my comments in reply to the AP, WIBC and Jim Shella.
I hope that clarifies things a bit. We received a degree of criticism early on for not commenting on these matters, but always have maintained we will not comment on the criminal proceedings. Furthermore, we have also held that we would comment on the civil action only after it went through the entire recount commission proceedings. Happy to answer any other questions,

AJ Feeney-Ruiz
Deputy Chief of Staff, Communications Director
Office of Indiana Secretary of State Charles White

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Indiana Government

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

But you've gotta luv an opinion that begins:

This case proves the maxim that, in appellate briefing, bluster is inversely proportional to merit. This diversity action is a simple breach of contract case seeking money damages, brought well within the applicable Illinois statute of limitations. The defendant contends that the action nevertheless should be barred by the equitable doctrine of laches. Unsupported by any case law in Illinois or the Seventh Circuit, the undeterred defendant concedes that it can produce no evidence in support of a key element of its defense: prejudice. The defendant attempts to fill the gaps in law and evidence with exaggerated outrage. The district court was not persuaded and neither are we. We affirm the district court’s grant of summary judgment in favor of the plaintiff.
The Nature Conservancy v. Wilder Corp. of Delaware

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Ind. (7th Cir.) Decisions

Law - Sex offender laws under review

Sentencing Law & Policy has this entry:

Two studies in the latest issue of the Journal of Law and Economics cast doubt on whether sex offender registry and notification laws actually work as intended.

One study, by J.J. Prescott of the University of Michigan and Jonah Rockoff of Columbia University, found that requiring sex offenders to register with police may significantly reduce the chances that they will re-offend. However the research also finds that making that same registry information available to the broader public may backfire, leading to higher overall rates of sex crime.

Meanwhile, another study by University of Chicago Ph.D. student Amanda Agan finds no evidence that sex offender registries are at all effective in increasing public safety.

Slate has this story about the two studies.

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to General Law Related

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

For publication opinions today (3):

In In Re: The Marriage of J.D.S. and A.L.S.; M.S. v. A.L.S., a 7-page opinion, Chief Judge Robb writes:

M.S. (“Grandmother”) appeals the trial court's order dismissing her Petition to Modify Grandparental Visitation. Concluding the trial court properly dismissed her petition, we affirm. * * *

M.S. (“Grandmother”) appeals the trial court's order dismissing her Petition to Modify Grandparental Visitation. Concluding the trial court properly dismissed her petition, we affirm.

In Richard M. Clokey v. Penny M. Bosley Clokey, 9-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court did not abuse its discretion when it awarded Penny $2,000 a month in incapacity maintenance.
In Mark E. Croy v. State of Indiana , a 9-page opinion, Sr. Judge Barteau writes:
In this case, Cox testified that she and Croy had “lived together like husband and wife” for four years prior to the end of the relationship. In addition, Croy told the jury that although he and Cox had ended their relationship before February 14, 2010, “we both still lived and remained in the same household.” Croy kept personal property at Cox's home and still considered it to be his residence. Furthermore, Cox and Croy still shared a bedroom. This evidence is sufficient to demonstrate that Croy and Cox had a spousal relationship at the time he confined and attacked her. Therefore, there is sufficient evidence to sustain Croy's domestic battery conviction.
NFP civil opinions today (3):

First Savings Bank, F.S.B. v. Baird Realty Appraisal Consultants, Inc., Richard R. Baird, and Glen Sperzel (NFP)

In Re: The Marriage of A.T.S. and B.K.T. (NFP)

Oswaldo Santos v. Allen County Sheriff (NFP)

NFP criminal opinions today (8):

James Casey v. State of Indiana (NFP)

Sylvester Buckingham, Jr. v. State of Indiana (NFP)

Michael L. Edwards v. State of Indiana (NFP)

Rikkia Weatherford v. State of Indiana (NFP)

Daniel Wilkins v. State of Indiana (NFP)

Anthony Arnold v. State of Indiana (NFP)

McKenna T. Groves v. State of Indiana (NFP)

Thomas Smith v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Delaware Circuit Court adopts social networking policy

Here is the two-page policy, signed by all five Delaware Circuit Court judges. It begins:

The code of Judicial conduct requires judges to avoid both impropriety and the appearance of impropriety. Judges may not engage in activities that would undermine the judge's independence, integrity, or impartiality. The code also requires judges to hold their staff to the same Code standards.

This policy addresses the Delaware Circuit Court (the "Court') employees' use of social networking sites to ensure compliance with the standards and intent of the Judicial Code. This policy applies to all existing and future social network sites, including, but not limited to, Myspace, FaceBook, Twitter, YouTube, Linkedln, and blogs. Any site accessed through the internet for the purpose of connecting one person to others with similar interests or background is a social network site, even if the common interest is as loose as enjoying watching funny or unusual film clips.

The new policy is the subject of this story today in the Muncie Star-Press, reported by Doug Walker and Keith Roysdon. From the story:
Delaware Circuit Court 1 Judge Marianne Vorhees said she had been determined to implement the measure since attending a judicial conference last year and hearing about "all kinds of issues" involving the improper use of social media sites by court employees -- including judges -- in other jurisdictions.

The new policy -- including a directive to not post photos online of court employees "in an intoxicated condition" -- is not tied to any incidents in the local court system, she said, but is instead an effort to prevent problems going forward, learning from mistakes made elsewhere.

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Indiana Courts

Ind. Courts - "Former Crawford prosecutor ordered to repay relative's estate"

Grace Schneider reports today in the Louisville Courier-Journal in a long story that begins:

Former Crawford County prosecutor Jimmie Montgomery was ordered by a judge this week to repay $146,000 that he and his wife were accused of taking from an incapacitated relative’s estate.

Harrison Superior Court Judge Roger Davis had threatened to jail Montgomery and his wife Shirley for contempt if they didn’t reimburse the money the couple had paid themselves from her aunt’s estate for caring for the woman in their home during the last two years.

The accusations that the Montgomerys illegally dipped into Alberta D. Suddarth’s estate surfaced this summer, roughly 18 months after the Indiana Supreme Court suspended Jimmie Montgomery’s law license over accusations that he stole law books when he left the prosecutor’s office in 2006.

Montgomery remains suspended from practicing law, according to state records, but he was listed in good standing when he took the guardianship matter to court two years ago.

Here is the Jan. 21, 2010 Supreme Court order In the Matter of Jimmie L. Montgomery. A quote:
Stipulated Facts: Respondent was elected as prosecutor of Crawford County in 2002. In late 2005, he used county funds to buy a set of West's Indiana Code ("New Set") for the prosecutor's office. He donated his personal set ("Old Set") to the county public library. During his term in office, supplements updating the New Set were sent to the prosecutor's office, but the Old Set was not kept current. Respondent did not win re-election in 2006. He took the New Set with him when he left office, leaving the prosecutor's office without any set of West's Indiana Code. During the Commission's investigation, Respondent falsely stated he believed that he had donated the New Set to the public library and that he had taken the Old Set with him when he left office. After the Commission initiated its investigation, Respondent reimbursed the county for the books in question. * * *

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than six months, without automatic reinstatement, beginning February 25, 2010.

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Goldsmith quit NYC post after being busted for domestic violence [Updated]

See the exclusive story in the NY Post, here.

Mary Beth Schneider
tweets:

Holy moly. Goldsmith quit NYC job because of arrest; he and wife deny any domestic violence and no charges were filed.
For background, start with this August 6, 2011 ILB entry quoting a NYT story which may not have been "the definitive story" after all.

[Updated at 10:04 am] The NYT now has posted this story, headed "Deputy Mayor Arrested Before Resignation."

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Indiana Government

Environment - "Peppermint farmers from LaPorte, Starke and Pulaski counties just want to be left alone to grow mint and distill its oil"

Dan Carden's story in the NWI Times continues:

That no longer may be possible, said state Rep. Tom Dermody, R-LaPorte, who believes state regulation of mint farm boilers and water use may help the farms avoid tougher federal rules.

The Indiana Department of Environmental Management began reviewing the water and air output of the state's 16 mint farms last summer after a dog allegedly was scalded to death in water discharged from a Starke County farm.

Materna Mint Farms of Hamlet has agreed to pay a $40,040 civil fine to Indiana for its unpermitted water discharges, though the U.S. EPA is considering criminal sanctions.

IDEM Director Tom Easterly said mint farms would gain protection from the EPA if their operations were licensed and permitted through IDEM, but the mint farmers said their operations should be classified as farming, which precludes state regulation.

Mint farmers use steam from boiling water to extract mint oil from the underside of a mint leaf during a monthlong period in July and August when the mint oil is at its peak.

ILB: The $40,000 Agreed Order discussed in the story has not yet been posted online by IDEM, but here is the Notice of Violation, issued Sept. 28, 2010. The charge:
Pursuant to 327 IAC 5-2-2, any discharge of pollutants into the waters of the state as a point source discharge is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.

Pursuant to IC 13-30-2-1, no person may discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste including any noxious odor, either alone or in combination with contaminants from other sources, into the environment or into any publicly owned treatment works in any form which causes or would cause pollution which violates rules, standards, or discharge or emission requirements adopted by the appropriate board pursuant to this title.

On August 9, 2010 and subsequent dates, Respondent was observed by IDEM staff to be discharging wastewater from its mint distillation operation into a roadside ditch tributary to Robbins Ditch, without a valid NPDES permit obtained prior to the discharge, in violation of 327 IAC 5-2-2. These events caused or contributed to a polluted condition. Because 327 IAC 5-2-2 is a rule of the Water Pollution Control Board, Respondent’s discharge of pollutants also was in violation of IC 13-30-2-1.

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Environment

Ind. Decisions - Mistrial in Allen County cases after two mistakes by prosecution

Rebecca S. Green of the Fort Wayne Journal Gazette has the story today. Some quotes:

FORT WAYNE – The murder and robbery trial of Andre Washington ended in a mistrial Wednesday.

For the second day, questions were raised about whether prosecutors informed defense attorneys about a piece of evidence. This time the evidence in question – a firearm analysis that excluded a potential suspect – was deemed too serious, and Allen Superior Court Judge John Surbeck declared a mistrial.

According to Michael McAlexander, Allen County chief deputy prosecutor, an Indiana State Police firearms examiner tested a gun seized in a traffic stop of another man not connected to this case.

The gun was found not to have been the .40-caliber handgun that fired the two shots that killed 32-year-old Ian Jacob Crace on Nov. 29, 2009.

But the report informing prosecutors of the exclusion of the gun as the murder weapon was never turned over to the defense, McAlexander said.

It should have been.

“We made a mistake by not providing the document to the defense,” McAlexander said. * * *

On Tuesday, the first day of the trial, Surbeck sent the jury home early to allow defense attorneys Michelle Kraus and William Lebrato time to reinterview a witness after the defense said prosecutors never told them that a piece of video evidence did not contain an accurate time stamp.

The videos were supposedly from 9:45 p.m. to midnight the night of the shooting, but because the cameras were never switched back from daylight saving time, the videos actually documented activity an hour earlier – from 8:45 to 11 p.m.

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Ind. Trial Ct. Decisions

Courts - "Reliability Of Eyewitness Testimony Under Scrutiny"

This ILB entry from August 22nd quoted a NYT article by Adam Liptak headed "34 Years Later, Supreme Court Will Revisit Eyewitness IDs."

This lengthy NYT story by Benjamin Weisner from August 24th, headed "In New Jersey, Rules Are Changed on Witness IDs," begins:

The New Jersey Supreme Court, acknowledging a “troubling lack of reliability in eyewitness identifications,” issued sweeping new rules on Wednesday making it easier for defendants to challenge such evidence in criminal cases.

The court said that whenever a defendant presents evidence that a witness’s identification of a suspect was influenced, by the police, for instance, a judge must hold a hearing to consider a broad range of issues. These could include police behavior, but also factors like lighting, the time that had elapsed since the crime or whether the victim felt stress at the time of the identification.

When such disputed evidence is admitted, the court said, the judge must give detailed explanations to jurors, even in the middle of a trial, on influences that could heighten the risk of misidentification. In the past, judges held hearings on such matters, but they were far more limited.

The decision applies only in New Jersey, but is likely to have considerable impact nationally. The state’s highest court has long been considered a trailblazer in criminal law, and New Jersey has already been a leader in establishing guidelines on how judges should handle such testimony.

Stuart J. Rabner, the court’s chief justice, wrote in a unanimous 134-page decision that the test for reliability of eyewitness testimony, as set out by the United States Supreme Court 34 years ago, should be revised. * * *

In its ruling, the court cited findings by Brandon L. Garrett, a law professor at the University of Virginia, who documented in a recent book, “Convicting the Innocent,” eyewitness misidentifications in 190 of the first 250 cases of DNA exoneration in the country.

Professor Garrett said the decision would provide a model for legislatures and courts around the country that “have been at a loss for what to do” and needed “a structure for how judges should handle identifications in the courtroom.”

The United States Supreme Court is scheduled to hear arguments, in November, in its first significant eyewitness identification case in 34 years. The case, Perry v. New Hampshire, is concerned with whether judges must take a hard look at all identifications arising from suggestive circumstances or only those involving official misconduct.

Joseph E. Krakora, the public defender who argued the case before the New Jersey Supreme Court, said the decision would “go a long way toward eliminating wrongful convictions based on mistaken identifications.”

The New Jersey attorney general’s office, which the state court on Wednesday credited for developing early guidelines to address identification issues, said, “The court’s ruling embodies the promulgation of additional safeguards as opposed to an overhaul of the present system.” It called the ruling “careful and balanced.”

Here is the 142-page, August 24, 2011 NJ Supreme Court decision in State v. Larry R. Henderson.

And here is a 30 minute segment
from NPR's Talk of the Nation, from August 29th, titled "Reliability Of Eyewitness Testimony Under Scrutiny."

Posted by Marcia Oddi on Thursday, September 01, 2011
Posted to Courts in general