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Monday, October 31, 2011

Courts - "Obesity Fuels Custody Fights: Ex-Spouses Hurl Accusations in Court About Their Kids' Nutrition and Exercise"

Ashby Jones and Shirley S. Wang had the long story in the Oct. 29th WSJ. It begins:

The nation's waistline is expanding, and so too is the role of obesity in child-custody battles in the U.S.

Family-law practitioners and legal experts say mothers and fathers in custody lawsuits are increasingly hurling accusations at each other about the nutrition and obesity of their children, largely in attempts to persuade judges that their kids are getting less-than-optimal care in the hands of ex- and soon-to-be-ex-spouses.

The evidence used to support the allegations varies. In some cases, it's a grossly overweight child. In others, it's evidence that soft drinks and potato chips make up a disproportionate part of a child's diet. In still others, it's that the other parent is too obese to perform basic child-rearing functions.

Posted by Marcia Oddi on Monday, October 31, 2011
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Thomas J. Ostrowski and Phyllis Ostrowski v. Everest Healthcare Indiana, Inc., d/b/a Merrillville Dialysis Center, and Family Mobile Medical Services, Inc., an 11-page opinion, Judge Crone writes:

As a man was reaching to open a door, an EMT exited through the door. The man's hand was injured. The man brought a negligence action against the owner of the building and the EMT's employer. A jury found in favor of the defendants and against the man. The man appeals, presenting three arguments: (1) the trial court erred in giving a final jury instruction on sudden emergency where there was insufficient evidence to support the instruction; (2) the trial court erred in permitting defendants' expert witnesses to testify where defendant failed to timely disclose his expert witnesses; and (3) the trial court erred in permitting a lay witness to testify as an expert witness. Having received very little of the trial transcript, we conclude that on the record before us, we cannot say that the trial court erred in giving the sudden emergency instruction or in permitting defendants' expert witnesses to testify. We further conclude that the lay witness did not improperly testify as an expert witness. Finding no error, we affirm.

In Lorenzo Surrisi, Individually and d/b/a City Tavern and Joette Surrisi, Individually and d/b/a City Tavern v. James D. Bremner, an 8-page opinion, Judge May writes:
Lorenzo and Joette Surrisi, individually and as owners of City Tavern, appeal the trial court's “Order on Effect of Sheriff's Sale,” which stated that the Surrisis' real and personal business property were sold at a sheriff's sale to James Bremner, as co-owner of M & J Lakeshore, LLC. The Surrisis submit various issues for our review, but we find one dispositive issue that the trial court erred when it affirmed the Sheriff's Bill of Sale which included the business personal property when that property was not listed as an item offered for sale in the Notice of Sheriff's Sale. * * *

The Surrisis knew their personal property could be subject to a sheriff's sale, but the notice of this sale listed only the real property. Nothing in the settlement agreement requires that the real and personal property be sold at the same sale, so a person reading the Notice, even one aware of the Agreed Judgment, would presume that only the real property was to be sold. Accordingly, we reverse and remand for vacation of the portion of the court's order indicating the Sheriff's Sale included the business personal property. On remand, the trial court should determine the amount of compensation due to the Surrisis for the loss of their business personal property. Affirmed in part, reversed in part, and remanded.

In Joseph Simmons v. State of Indiana , a 13-page opinion, Judge Mathias writes:
[Issue I is] Whether Simmons's conviction for OWI, which was enhanced to a Class C felony because of a prior OWI conviction, constitutes an ex post facto violation because his prior conviction occurred before the enactment of the enhancement statute. * * *

Simmons is not being re-punished for his prior crime, nor has the penalty for his prior crime been enhanced. He is simply being punished as a recidivist based upon his most recent act of OWI. And he is being punished under the version of the statute which was effective at the time he committed his most recent OWI. See Collins v. State, 911 N.E.2d 700, 708 (Ind. Ct. App. 2009) (noting general rule that the law in effect at the time the crime was committed is controlling), trans. denied. * * *

Wallace v. State, 905 N.E.2d 371 (Ind. 2009) is distinguishable from the facts before us. * * *

Simmons's conviction for Class C felony OWI does not constitute an ex post facto violation, the State presented sufficient evidence to support Simmons‟s conviction for Class C felony OWI, and Simmons's eight-year sentence is not inappropriate in light of the nature of the offense and the character of the offender.

In Luigi Amalfitano v. State of Indiana, a 7-page opinion, Judge May writes:
Amalfitano argues the trial court abused its discretion by relying on improper aggravating circumstances and his sentence is inappropriate given his character and the nature of his offense. * * *

That he could lock a sixty-five year old woman with dementia in a closet for more than six months, keeping her barely alive, so that he could steal her social security checks and prescription medications, which he used to satisfy his own addiction, does not speak well of his character. Nor does his knowingly permitting his children, one of whom was only twelve-years-old, to physically assault that woman on a daily basis suggest his character is upstanding. In sum, nothing about Amalfitano’s character suggests his forty-six year sentence is inappropriate.

Given Amalfitano’s lengthy criminal history and the egregious nature of his crimes, we cannot say his sentence is inappropriate. Accordingly, we affirm.

NFP civil opinions today (3):

M.B. and M.F. v. Indiana Dept. of Child Services (NFP)

1991 Investors Limited Partnership, An Indiana Limited Partnership, Pamela T. Hennessy, Joseph J. Hennessy, et al. v. Citizens Financial Services, FSB (NFP)

Zachary Krachinski v. Cindy Shoof, Century 21 - 1st Team, Inc., Lon F. Terry, and Horizon Bank, N.A. (NFP)

NFP criminal opinions today (6):

Terry C. Winslow v. State of Indiana (NFP)

Raymond Scebbi v. State of Indiana (NFP)

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

Patrick Black v. State of Indiana (NFP)

Christopher D. Taylor v. State of Indiana (NFP)

Tracey L. Routon v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 31, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 28, 2011

Ind. Decisions - Transfer list for week ending October 28, 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 October 28, 2011. It is two pages (and 15 cases) long.

No transfers were granted last week. However, a transfer order issued 8/1/8/11, in the case of Jennings Daugherty v. State of Indiana, was vacated and the transfer petition denied. See this Oct. 28 ILB entry headed "Supreme Court vacates transfer in case heard last Thursday" for details.

Posted by Marcia Oddi on Monday, October 31, 2011
Posted to Indiana Transfer Lists

Courts - "Two Cases Tied To Dubious Legal Advice Reach High Court"

That is the heading to Nina Totenberg's story this morning on NPR's Morning Edition. A quote:

On Monday the U.S. Supreme Court hears arguments in two cases involving defendants who claim they were mauled, not by the system, but by their own lawyers.

In both cases, the defendants claim that their lawyers' conduct was so bad that it amounted to ineffective assistance of counsel, denying them the legal help that the Constitution says they are entitled to when facing criminal charges. And in both cases prosecutors claim the Constitution only guarantees a right to a fair trial, not a fair plea bargain.

Adam Liptak of the NY Times also reports on the cases today in his column headed "Supreme Court to Weigh Effects of Bad Plea Advice." A sample:
On Monday, the Supreme Court will hear arguments in the two cases, which ask how principles concerning bad legal work at trial should apply to plea bargains. The question is of surpassing importance, since a large majority of criminal cases are settled at the plea stage.

Last year, 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was 94.

In the context of trials, it has long been established that defendants who can show that incompetent work by their lawyers probably affected the outcome are entitled to new trials.

Plea bargaining, on the other hand, “remained all but unregulated, a free market that sometimes resembled a Turkish bazaar,” Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania, wrote recently in The California Law Review.

Posted by Marcia Oddi on Monday, October 31, 2011
Posted to Courts in general

Courts - "Supreme Court to take another look at prosecutorial misconduct"

"Cruel but Not Unusual: Clarence Thomas writes one of the meanest Supreme Court decisions ever" was the heading to a column by Dahlia Lithwick last April 1st on the Supreme Court's decision in Connick v. Thompson, involving former Louisiana district attorney for Orleans Parish, Harry Connick Sr.

Robert Barnes story Sunday in the Washington Post reports:

Next week, the court will hear a case in which a Louisiana death row inmate alleges that prosecutors withheld information that would have cast doubt on the eyewitness account that led to his conviction.

The case from New Orleans concerns prosecutors who worked for former district attorney Harry Connick Sr., who left office in 2003.

If that sounds familiar, it is because Connick and his office were at the center of last term’s big decision about prosecutorial misconduct. In that controversial 5-to-4 decision, the court stripped a $14 million award from John Thompson, who spent 14 years on death row after prosecutors withheld evidence that showed his innocence.

The court has long agreed that individual prosecutors should be protected from civil liability so that they may freely pursue criminals. However, Thompson had convinced a jury that Connick’s office should be held accountable for not properly training staff about the duty prosecutors have to turn over evidence favorable to the defense. * * *

The new case, Smith v. Cain , is not about punishing prosecutors. It is about whether withholding evidence should mean a new trial for Juan Smith, who prosecutors said was involved in a gangland-style shooting that left five dead. Prosecutors have an obligation under a nearly 50-year-old Supreme Court precedent in Brady v. Maryland to turn over any evidence material to a defendant’s guilt or punishment.

The case is expected to be determined by its specific facts rather than the potential for a new examination of Brady. It also seems not coincidental that it involves New Orleans prosecutors.

Posted by Marcia Oddi on Monday, October 31, 2011
Posted to Courts in general

Ind. Law - "Meth ingredient tracking reviews mixed"

Niki Kelly's long story this morning in the Fort Wayne Journal Gazette. It begins:

INDIANAPOLIS – Despite mixed reviews from law enforcement officials, thousands of illegal pseudoephedrine purchases have already been halted under a new tracking system the state is implementing.

The Indiana General Assembly passed the new real-time, electronic tracking program – often referred to as meth check – earlier this year.

Retailers around the state selling ephedrine or pseudoephedrine – which is found in a variety of over-the-counter cold and allergy medicines – have until Jan. 1 to sign on to the program.

Thousands are already participating, though.

That means they are blocking sales of the drugs used to make methamphetamine as Hoosiers must show identification to purchase the items. Individual purchases are limited to 3.6 grams per day of pseudoephedrine and no more than 7.2 grams during any 30-day period.

“This is real time. If you go to Walmart and purchase then go across the street to Meijer it will show you are purchasing too much and stop the sale,” Noble County Sheriff Doug Harp said. “Anything they can do to make it tougher for the labs is going to be a positive thing.” * * *

The Indiana State Police ... actively lobbied against the system during the legislative session. And other law enforcement officers believe the only real way to stop the meth production in the state is to make pseudoephedrine a prescription drug.

Two states have done so with dramatic initial results.

ISP Sgt. Niki Crawford said the state police already have their own tracking system that processes sales data from the previously maintained logs and analyzes tips, arrest and clandestine lab locations to find patterns.

“I think what we’re going to learn eventually is that tracking doesn’t work. So many states have already done it. Every state with tracking in place, it’s not preventing meth labs,” she said. “The legislature decided to take this step and reinvent the wheel. We are going to track and block – we will have more smurfs out there than we can throw a stick at.” * * *

Sen. Tom Wyss, R-Fort Wayne, voted against the measure after speaking with other states where tracking caused a decline that proved short-lived. He prefers requiring prescriptions to buy the medicine, which he concedes might be a hassle for Hoosiers.

“But do you want to do something that is successful in the short and long term?” he asked. “It’s a real way to address our problem. Instead we are just trying something else that hasn’t worked elsewhere.”

Posted by Marcia Oddi on Monday, October 31, 2011
Posted to Indiana Law

Law - Still more on: "At least 93 Milwaukee police officers have been disciplined for violating law"

Updating this ILB entry from Oct. 27th, here is Part 3 of the Milwaukee Journal-Sentinel investigative series by Gina Barton. The main story today is headed "Police Department ignores national standards for officers accused of domestic violence."

Posted by Marcia Oddi on Monday, October 31, 2011
Posted to General Law Related

Ind. Law - "Indiana Lawyer Who Started His Legal Career as a 17-Year-Old Judge Gets the Guinness World Record"

Greenwood attorney Marc L. Griffin is featured in an ABAJournal blog entry this morning by Debra Cassens Weiss. Some quotes:

Griffin was an enterprising 17-year-old high school graduate in 1974 when he persuaded county commissioners to appoint him to fill a vacancy for justice of the peace. Griffin later won re-election to the job that included presiding over some civil and criminal cases, as well as performing weddings. “I was marrying people, throwing people in jail, and fining people,” he recalls. * * *

Speeding tickets were a big part of Griffin’s docket because the highway speed limit had recently dropped from 70 to 55 miles an hour. He held court at all hours of the night when police needed authority to lock up suspected domestic abusers. But it was the weddings he performed and an attorney general’s opinion that garnered national news coverage. Griffin was marrying people even though he was himself too young to marry without parental consent, a fact noted by critics.

The state attorney general opined that Griffin was too young to hold office. An Associated Press “fun-sy” story reporting on the decision questioned whether the people Griffin had married were “living in sin” because their weddings were illegal, Griffin says. The legal dispute was put to rest when a circuit court found Griffin qualified to hold office, paving the way for a short-lived judicial career.

The state eliminated justice of the peace courts a year or two later. Griffin finished his education and got a law degree from Indiana University School of Law. He has a niche practice representing banks and insurance companies that obtain liens on properties through tax sales.

Posted by Marcia Oddi on Monday, October 31, 2011
Posted to Indiana Law

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

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

From Sunday, October 30, 2011:

From Saturday, October 29, 2011: From late Friday, October 28, 2011:

Posted by Marcia Oddi on Monday, October 31, 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 10/31/11):

Monday, October 31st

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

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 10/31/11):

Tuesday, November 1st

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

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, October 31, 2011
Posted to Upcoming Oral Arguments

Sunday, October 30, 2011

Stage Collapse - More on "Some injured State Fair victims' claims rejected by fund"

Updating this Oct. 28th ILB entry, linking to a WTHR 13 Indy story, Alex Campbell of the Indianapolis Star has a front-page story today headed "Adding insult to injury for victims of State Fair stage collapse? Some who were hurt in State Fair stage collapse are unable to receive money from relief fund." Some quotes:

Private citizens have donated more than $970,000 to victims of the catastrophic Aug. 13 stage rigging collapse that killed seven people and injured more than 40 others.

But money in the fund is given out based solely upon how much time a victim spends at the hospital. The severity of the injuries, how much the victim has lost in wages, whether the person is insured -- none of that goes into determining who gets a slice, or how big.

Relief fund officials acknowledge it's not a perfect system -- experts say there probably is no perfect system -- but it does keep things objective and, thus, it allows the state to provide relief more quickly than if a more complicated eligibility process were in place.

Officials have paid out 20 claims totaling more than $470,000 of the money, meaning there's more than $500,000 left. * * *

Short-stay victims would be compensated -- if there were enough money in the fund, said Kenneth Feinberg, an attorney and victim-compensation expert whom Gov. Mitch Daniels asked to help come up with the process.

"But when you only have a total of less than a million dollars," Feinberg said, "wherever you make the break between eligibility and ineligibility is going to promote some divisiveness."

The relief fund is emergency money to help victims cope, he said. So officials need to be able to hand it out promptly. Feinberg said he considered hiring a medical expert to evaluate victims' records, "but we thought that was too subjective and too time-consuming."

Time spent in the hospital can be easily verified, he said. "It's also a pretty good indicator of seriousness of injury." * * *

People can donate to the relief fund until the end of October 2012. But even if there's money left over after each claim is processed, Feinberg said he'd likely just give more to the people who originally were eligible.

Those shut out from the State Fair Relief Fund might still have a chance to receive compensation. But it's a seemingly slim one.

Victims can make a legal filing with the state's Tort Claim Fund. But it's a limited pool of money -- 70 claims have so far been filed to the fund, which, by law, can provide no more than $5 million total.

"You could get to $5 million (in tort claims) pretty quickly," said Andrew Klein, a law professor at Indiana University School of Law-Indianapolis.

And though officials haven't divvied up the Tort Claim Fund cash yet, Indiana Attorney General Greg Zoeller has said priority will be given to the families of those who died and to those who were seriously injured.

That would eliminate a number of victims who were released early from the hospital. But there is a potentially important difference between the two funds.

There is a space on the Tort Claim Fund application for victims to indicate how much time they've missed from work. That's not the case with the relief fund. It's still unclear, though, how the state will assess those situations. Rules have not been developed.

But if the relief fund rules seem unfair, experts warn that there are plenty of moral questions that would come with any policy for handing out the money.

Posted by Marcia Oddi on Sunday, October 30, 2011
Posted to Stage Collapse

Courts - "Trial reveals distrust between gun club, county"

Tacoma Washington is the site of this very long story from Oct. 29, published in the Kitsap Sun, interesting because it cites an Indiana decision. Some quotes:

TACOMA — On the surface, the legal battle between Kitsap County and the Kitsap Rifle and Revolver Club appeared to be a question of whether the club has violated rules related to public safety and environmental protection.

Stray bullets striking homes in Eldorado Hills and Whisper Ridge to the northeast received the most attention, though the source of the flying projectiles remains in dispute.

Underlying the drama, however, feelings of frustration, mistrust and betrayal have kept the parties from finding common ground.

At its simplest level, said Brian Chenoweth, attorney for the gun club, the lawsuit is about "the county's desire to take away the right of the club to exist as it has for 85 years."

County officials contend that it was the gun club that chose to expand its facilities, extend its hours of operation, allow more powerful weapons and bring in commercial operations. The resulting noise, flying bullets and other changes created a public nuisance, extinguishing the club's "grandfathered" status and requiring the county to take action, according to pleadings by Neil Wachter, the deputy prosecutor representing the county.

Such modernization efforts have not changed the nature of the gun range, insisted Chenoweth. Such activities are considered "intensification." They do not require county review, so long as the range does not expand outside its historical eight-acre footprint. * * *

Kitsap County called seven witnesses who talked about bullets striking their homes. In at least three cases, expert witnesses examined the types of bullets and drew "pie-shaped" wedges on maps to define the area from which the bullets may have originated.

The county's experts drew smaller wedges than did the club's. For the most part, the gun range was located within the area from which the bullets originated — though one bullet could not have gone that far unless the cartridge was "uploaded" with an extra charge.

But just because the gun range was a possible source for the bullets did not mean that's where the bullets originated, and it is not enough proof for legal action, the club's lawyers argued. In a similar case in Indiana, the courts refused to take action against a gun range because people were known to shoot outside the range and the source of the errant bullets was inconclusive.

ILB: What Indiana case is this? It is not identified in the story, but looks to be the Sept. 15, 2010 Court of Appeals opinion in Woodsmall v. LOST CREEK TOWNSHIP CONSERVATION CLUB, INC. Here is a quote:
The Homeowners vigorously contend that they established the presence of errant bullets on some of the Homeowners' properties and thus the trial court could not have reached a conclusion other than that an unsafe nuisance was being maintained by Lost Creek. However, the evidence does not definitively establish that Lost Creek is a source of a hazard to the Homeowners. First, there is evidence from which a factfinder could infer that shooting in the heavily wooded area near the Homeowners is not limited to Lost Creek members and visitors. Phyllis Woodsmall testified that "a couple times a year" she heard shooting from an area other than Lost Creek. (Tr. 58.) Lost Creek President Danny Favor testified to his belief that a nearby plumbers and steamfitters organization also engaged in trap and skeet shooting in their park area.

Second, the trial court heard expert evidence that, should a bullet escape the confines of the shooting range, it would be at a height and trajectory such that it posed no danger upon falling to the ground. Indeed, none of the Homeowners testified to property damage or physical injury. One of the Homeowners had heard a "ping" and suspected a bullet, but she and her husband were unable to locate a place on the house that appeared to have been struck by a bullet. (Tr. 198.) Another of the Homeowners reported hearing a shot, and four or five days later her husband found a spent bullet lying on the back deck. Its origin was not determined.

Posted by Marcia Oddi on Sunday, October 30, 2011
Posted to Courts in general

Friday, October 28, 2011

Stage Collapse - "Some injured State Fair victims' claims rejected by fund"

Sandra Chapman of WTHR 13 Indy has the story tonight. Some quotes:

INDIANAPOLIS - There is growing anger and frustration because some victims of the Indiana State Fair stage collapse are not getting a share of money donated to help them.

All the money that people pitched in to help victims with medical bills comes with some very strict guidelines, but many people who were seriously injured don't qualify.

Of the $900,000 collected, 37 people have filed claims to the fund but only 20 have been paid for a total of $470,000. That means an astounding $498,000 is still just sitting there.

The story explains that a number of "applications for the State Fair Relief Fund were denied because [the applicants] were not technically admitted to the hospital for a full day between August 13th and October 2nd." More:
The state has said any left over monies would be prorated and split between approved victims. There is no word on whether possible changes to that are under consideration.

The deadline to seek a gift from this public charity fund is November 14th.

Here are the official application details for the State Fair Relief Fund.

Posted by Marcia Oddi on Friday, October 28, 2011
Posted to Stage Collapse

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Rick Gillespie, Dawn Gillespie and Rick's Towing and Maintenance, LLC v. Frank B. Niles and Kathryn Niles, a 15-page opinion, Judge Barnes writes:

The Defendants raise several issues, which we consolidate and restate as: I. whether the trial court abused its discretion by denying the Defendants‟ objection to the Nileses‟ request for a pre-trial conference and refusing to dismiss the action under Indiana Trial Rule 41(E); and II. whether the trial court properly granted the Nileses‟ cross-motion for summary judgment and denied the Defendants‟ motion for summary judgment. * * *

Absolutely no evidence was designated here that the Gillespies had ignored, controlled, or manipulated the corporate form or that their actions were fraud or promoted injustice. The Nileses cite only evidence that the Gillespies were responsible for sending the notice, publishing the advertisement, and conducting the sale and that their friend, Jon Trusty, purchased the vehicle. These actions, however, were performed as employees of Rick‟s Towing and do not demonstrate a basis for piercing the corporate veil. Further, the Nileses cite no authority for the proposition that a friend of the Gillespies could not purchase the vehicle at the auction. In fact, the Gillespies themselves could have purchased the vehicle. I.C. § 9-22-5-15(g) (“A person who holds a mechanic‟s lien under this section may purchase a vehicle subject to sale under this section.”). We conclude that the trial court erred by granting summary judgment against the Gillespies individually.

Conclusion. The trial court did not abuse its discretion by denying the Defendants‟ objection to the Nileses‟ request for a pre-trial conference and refusing to dismiss the action under Indiana Trial Rule 41(E). Further, the trial court properly denied the Defendants‟ motion for summary judgment and granted summary judgment to the Nileses. However, the trial court erred by granting summary judgment against the Gillespies individually. Rather, the judgment should be against Rick‟s Towing only. We affirm in part and reverse in part.

In R.R.F. v. L.L.F. , a 14-page opinion, Judge Mathias writes:
R.R.F. (“Father”) appeals from the dissolution court’s order on remand apportioning post-secondary educational expenses for the parties’ son, E.F., between Father and L.L.F. (“Mother”). On appeal, Father argues that the dissolution court’s order was clearly erroneous in light of certain tax credits available to Mother as a result of E.F.’s enrollment in college. The State, which became a party to this action through the intervention of the Title IV-D Prosecutor, cross-appeals and asserts that the order on remand is not an appealable final judgment, and that we must therefore dismiss this appeal for lack of subject matter jurisdiction. Concluding that this court has subject matter jurisdiction because the order on remand is an appealable final judgment and that the dissolution court’s allocation of the benefits of the tax credits was not clearly erroneous, we affirm.
In M.L. v. Meridian Services, Inc., an 11-page opinion, Judge Crone writes:
M.L. threatened suicide and drank rubbing alcohol and was admitted to a hospital emergency room. Meridian Services, Inc. (“Meridian”), petitioned to have M.L. involuntarily committed to a state-operated facility for a ninety-day period because he suffered from depression and alcoholism and was dangerous and gravely disabled. The trial court granted the petition and authorized the state-operated facility to administer medications to M.L.

M.L. appeals, arguing that the trial court’s order is not supported by clear and convincing evidence that he is dangerous and gravely disabled and that the medications will substantially benefit him and the probable benefits outweigh any risk of harm. We conclude that there is clear and convincing evidence that M.L. is dangerous. However, we agree with M.L. that the evidence is insufficient to support the authorization to administer medication. Accordingly, we affirm M.L.’s temporary commitment and reverse the authorization to treat.

NFP civil opinions today (3):

Term. of Parent-Child Rel. of E.P. (Minor child) and A.P. and J.P. (Parents); A.P. (Mother) v. Indiana Dept. of Child Services (NFP)

James Traylor v. Beth Traylor (NFP)

Weida Levee, LLC v. Doug Brooks and Regina Brooks (NFP)

NFP criminal opinions today (4):

Terry Laderson v. State of Indiana (NFP)

Farrell Haycraft v. State of Indiana (NFP)

Blease White, Jr. v. State of Indiana (NFP)

Buzz Taylor v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 28, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court vacates transfer in case heard last Thursday

The Supreme Court heard oral argument in the case of Jennings Daugherty v. State of Indiana on Wednesday, October 19th. In a 5-0 order filed Oct. 26th and posted today, the CJ writes:

By order dated August 18, 2011, the Court granted a petition seeking transfer of jurisdiction of this appeal from the Court of Appeals to this Court. After further review, including oral argument, the Court has determined that transfer of jurisdiction was improvidently granted. Accordingly, the order granting transfer is VACATED and the transfer petition is DENIED.

The Court of Appeals not-for-publication memorandum decision, Daugherty v. State, No. 89A01-1010-CR-520, slip op. (Ind. Ct. App. May 9, 2011), is no longer vacated under Appellate Rule 58(A) and is reinstated. But see App. R. 65 (addressing the precedential value of not-for-publication decisions). This appeal is at an end pursuant to Appellate Rule 58(B).

Posted by Marcia Oddi on Friday, October 28, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Judge: IMPD officer Bisard's blood test can be used" [Updated]

Here is a long list of ILB entries in the case of suspended Indianapolis police officer David Bisard. From the story today in the Indianapolis Star, reported by Carrie Ritchie:

A simple blood test has caused a year of headaches for the Marion County prosecutor’s office.

The test shows that suspended Indianapolis police officer David Bisard’s blood-alcohol content was 0.19 — more than two times the level at which people are considered to be drunk — when his squad car crashed into a group of motorcyclists.

The Aug. 6, 2010, crash killed one and severely injured two others.

Drunk driving charges were filed against Bisard and dropped; then re-filed and thrown out by a judge who said the test was inadmissible under Indiana’s drunk driving laws.

But Thursday, the prosecutor’s office finally won a battle over the blood test.
Marion Superior Court Judge Grant Hawkins ruled that the test could be used to support felony charges of reckless homicide and criminal recklessness. * * *

Bisard’s attorney, John Kautzman, said they will appeal Hawkins’ latest ruling.

Prosecutors are appealing another decision by Hawkins, who ruled in May that the test is inadmissible for the drunk driving charges because the person who administered the test was not a professional authorized to do so under drunk-driving laws. [ILB - here is the May 31, 2011 ruling]

They don’t want to drop Bisard’s most serious charge: A felony count of operating a vehicle while intoxicated causing death, which would carry a penalty of six to 20 years in prison.

The appeals likely will be combined for review by the Indiana Court of Appeals.
Hawkins said Thursday that the section of the law regarding drunk driving has tighter restrictions on blood tests, and those restrictions don’t apply to recklessness charges. He said court rules regarding evidence allow him to admit the test for the recklessness charges because the test is scientifically reliable.

Kautzman disagreed. He had asked for the test to be tossed out on both sets of charges.

Kautzman said the case originated under the drunk-driving statute, so the blood test restrictions in that part of the law should continue to apply.

“We think that there is one standard of admissibility for blood that is obtained in a driving case that has an allegation of alcohol with it,” he said.

Both of Hawkins’ rulings likely will hold on appeal, [IU-Indy Law prof Joel] Schumm said, because higher courts tend to defer to trial court judges on evidentiary issues unless they’ve committed an egregious error.

The ILB hasn't seen a copy of the Oct. 27th ruling ...

[Updated at 2:47 pm]
The ILB has received this note:
I just heard from someone in the courtroom yesterday that [Judge Hawkins] said from the bench he will not be issuing a written order.

Posted by Marcia Oddi on Friday, October 28, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Patrick V. Baker suspended for 6 months, without automatic reinstatement

The order in In the Matter of Patrick V. Baker was filed Oct. 21, 2011, but is posted this morning. As pointed out in the story this morning by Laura Lane of the Bloomington Herald-Times ($$$), Mr. Baker is:

... the lawyer who represented John Myers, who was convicted of killing 19-year-old Bloomington resident Jill Behrman in 2000.
From the order:
In 2006, J.M. was indicted for a murder that occurred in 2000, and a public defender was appointed to represent him. Without invitation from J.M. or anyone else, Respondent visited J.M. in jail and agreed to represent him without charge.

During his opening statement, Respondent stated that search dogs were sent out shortly after the victim's disappearance and one dog "alerted" at the home of B.H., but the dog was called off. These statements were false and Respondent should have known that no evidence would be admitted at trial to support them. J.M. was found guilty of murder and sentenced to 65 years.

Respondent filed a notice that he would be providing pro bono representation for J.M. in his appeal. The court issued an order finding J.M. indigent for the purposes of paying the costs of a transcript for the appeal. Respondent, however, never requested funds for copying and binding the appellant's brief and appendix. Instead, he told J.M.'s mother that technically they could probably request the trial court to pay these costs, but the court would not pay because of extreme criticism of the judge and the prosecutor in the appellate brief.

When Respondent filed an appellant's brief for J.M., he sent J.M.'s mother a copy that was not file-stamped and expressed his hope that family or friends would pay the costs to the printer. He later informed J.M.'s mother that the brief would be refiled to correct grammatical errors, told her that the copying expenses needed to be paid, and asked her for payment of at least $1,500. J.M.'s mother was unaware that that original brief had already been filed and feared that failure to pay the costs of printing and binding would result in the brief not being filed. She therefore sold some personal items and sent Respondent a check for $1,500.

The parties cite the following facts in aggravation: (1) Respondent's misconduct was motivated by selfishness, expecting that publicity from the case would lead to an increase in business; (2) Respondent victimized three vulnerable people—J.M., B.H., and J.M.'s mother; and (3) Respondent's multiple ethical offenses demonstrated a gross disregard for the Professional Rules of Conduct. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) he was cooperative with the Commission; and (3) he is remorseful.

We note that there is no allegation in this proceeding that Respondent provided sub-standard services to J.M. or that Respondent's improper representations during his opening statement prejudiced J.M. or the State.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

  • 1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions.
  • 1.5(a): Making an agreement for, charging, or collecting an unreasonable amount for expenses.
  • 3.4(e): Alluding to any matter in trial that the lawyer does not reasonably believe will be supported by admissible evidence.
  • 4.1(a): Knowingly making a false statement of material fact or of law to a third person in the course of representing a client.
  • 7.3(a): Improperly soliciting employment in-person from a person with whom the lawyer has no prior relationship when a significant motive is the lawyer's pecuniary gain.
Discipline: The parties propose the appropriate discipline is a six-month suspension without automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.
The facts, as summarized in this morning's H-T story:
A hearing officer ruled Baker violated the rules by soliciting Myers as a client and also by misleading jurors while providing no proof to shore up his allegations. He also violated three other rules by telling Myers’ family they had to pay for appeal-related costs when they did not have to because Myers had been declared indigent.

According to documents in the case, a judge initially appointed a public defender, Morgan County defense attorney William Van Der Pol, to represent Myers at the state’s expense.

But on the morning of Myers’ initial court appearance, Baker visited Myers at the Morgan County Jail and offered his legal counsel for free.

The state bar association’s roster of attorneys shows this is the first time Baker has faced disciplinary action.

The state public defender’s office took charge of Myers’ appeal of his conviction.

Posted by Marcia Oddi on Friday, October 28, 2011
Posted to Ind. Sup.Ct. Decisions

Thursday, October 27, 2011

Ind. Decisions - More on "KKK threatens to sue Martinsville after littering citation"

Updating this ILB entry from June 16, 2011, Keith Rhoades of the Martinsville Reporter-Times reports today under the headline "Man not guilty of littering after distributing KKK material in Martinsville." The story begins:

Martinsville City Court Judge Mark Peden found Thomas Buhls not guilty of a littering charge stemming from a May incident in which the man dropped off copies of The Crusader, the publication of the Knights of the Ku Klux Klan, to businesses near downtown Martinsville.

Peden said the court was not going to get into the 1st amendment argument over free speech. And he said this was not a trespassing case.

“This is a littering case where the state alleged trash was placed on private property,” Peden said. “State law defines what trash is.

"That definition does not include newspapers.”

Because the newspaper is not trash, Peden said Buhls is not guilty of littering. * * * Buhls was represented by Kenneth Falk of the American Civil Liberties Union. The state was represented by Morgan County Chief Deputy Prosecutor Robert Cline.

Posted by Marcia Oddi on Thursday, October 27, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)

For publication opinions today (1):

In Joey Jennings v. State of Indiana , a 10-page opinion, Judge Mathias writes:

Joey Jennings (“Jennings”) was convicted of Class B misdemeanor criminal mischief and sentenced to 180 days in jail, with 150 days suspended and 360 days of probation. Jennings appeals and raises two issues, which we restate as: I. Whether the State presented sufficient evidence to support Jennings’s conviction; and II. Whether Jennings’s sentence is contrary to statute. * * *

Based on the reasoning set forth by our supreme court in Mask, and this court’s decisions in Collins and Copeland, we conclude that Jennings’s term of imprisonment for the purposes of Indiana Code section 35-50-3-1(b) includes not only the thirty-day executed portion of his sentence, but also the 150-day suspended term. Thus, the trial court’s imposition of a 360-day term of probation in addition to Jennings’s 180-day term of imprisonment caused Jennings to serve more than one year of combined imprisonment and probation, in violation of Indiana Code section 35-50-3-1(b). We therefore remand this cause to the trial court for a redetermination of Jennings’s period of probation, not to exceed 185 days.

Conclusion. The State presented sufficient evidence to support Jennings’s conviction. However, the trial court erred when it sentenced Jennings to a combined term of imprisonment and probation exceeding one year. We therefore remand to the trial court for a redetermination of Jennings’s period of probation, not to exceed 185 days.

NFP civil opinions today (4):

Term. of the Parent-Child Rel. of Bn.Z. and Ba.Z.; and B.Z. and V.C. v. Indiana Dept. of Child Services (NFP)

Term. of the Parent-Child Rel. of Z.Z.N., and L.O.O. v. Indiana Dept. of Child Services (NFP)

Laveda Drew v. Jim Galloway (NFP)

Ted Parker v. Randall J. Bonewitz and Russell Todd Dellinger (NFP)

NFP criminal opinions today (7):

Martin Montgomery v. State of Indiana (NFP)

George Hill v. State of Indiana (NFP)

T.H. v. State of Indiana (NFP)

Abraham Alvarez v. State of Indiana (NFP)

Ernest Davis v. State of Indiana (NFP)

William Hinesley, III v. State of Indiana (NFP)

Leroy Arrington v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 27, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - "Problem No. 1 with the state’s absentee voting system is that people casting such a ballot by mail are not required to show a photo ID"

That is a quote from a long editorial Oct. 26th in the New Albany News & Tribune. It begins:

SOUTHERN INDIANA — Rules and laws are used and manipulated every day and everywhere to gain an advantage — in boardrooms, on athletic fields, in law in front of judges and beyond.

It becomes a big problem when bad rules lead to behavior that might be legal, but still isn’t exactly seen as fair.

At the top of that list are Indiana’s absentee ballot and voter laws, which are structured in a way that makes unethical behavior — or even corruption — much easier than conventional voting. The possibilities are nearly endless — suggesting ways to vote; campaigning while soliciting people to vote absentee; vote-buying; or election mail fraud.

Problem No. 1 with the state’s absentee voting system is that people casting such a ballot by mail are not required to show a photo ID. That’s right — Hoosiers who physically make it to the polls must show a photo ID to vote, but not those already cloaked in some anonymity by voting from a home or office, where election workers aren’t present.

It’s inexcusable that voters by mail aren’t required to send at least a copy of their photo ID.

Another loophole is the exemptions to allow for voting absentee-by-mail. One is simply that you can vote absentee-by-mail if you are 65 or older, as if everyone of that age is incapable of getting to the polls.

Another exemption reads: “You have a specific, reasonable expectation that you will be absent from the county on Election Day during the entire 12 hours that the polls are open.”

That seems to be the popular one, since it’s vague and impossible to verify for the 3,000 or so absentee ballots that have been so far cast in Clark County this election cycle — and potentially prosecute those who break the law. That’s about three times the amount of absentee tallies counted in the last municipal election in the county in 2007 — one flush with controversy over absentee ballots. A special prosecutor didn’t find enough evidence to file charges then, but did say he was “bothered by a few things” found in the investigation.

Posted by Marcia Oddi on Thursday, October 27, 2011
Posted to Indiana Law

Ind. Decisions - "Ruling Called Victory For Medical Malpractice Patients: Court Of Appeals Allows Victim's Widower To Challenge Law"

The COA opinion Oct. 25, 2011 in the case of Timothy W. Plank, Individually and as Personal Representative of the Estate of Debra L. Plank, Deceased v. Community Hospitals of Indiana, Inc. and State of Indiana was the subject of this WRTV6 Joanna Massee story last evening. Some quotes:

A ruling from the Indiana Court of Appeals will allow a Hancock County widower to challenge the constitutionality of the state's medical malpractice law.

Timothy Plank's wife Debbie died after he said doctors waited too long to perform intestinal surgery.

"It's been a living hell to have to go through this all the time," Plank said. "There were several different mess-ups throughout the chain of events."

In 2009, a jury awarded Plank $8.5 million, $7.25 million more than the state's cap on malpractice damages allows, RTV6's Joanna Massee reported.

Plank's wife died at Community North hospital. Lynda de Widt, Community North spokeswoman, said officials are still evaluating Plank’s claims.

“On Oct. 25, 2011, the Indiana Court of Appeals issued a preliminary opinion in the Plank matter. Mr. Plank is attempting to challenge the constitutionality of Indiana’s cap on damages in medical malpractice cases. Without addressing the merits of Mr. Plank’s arguments, the Court found he was entitled to an evidentiary hearing regarding the constitutionality of the state’s malpractice cap. We are still evaluating the Court’s ruling and are beginning our preparation for the evidentiary hearing. After this evidentiary hearing, we believe that the appropriate court will uphold the constitutionality of the medical malpractice cap, which has preserved the availability of health care services in Indiana and has served this state well over the last 35 years,” de Widt said.

This is an important opinion. It was handed downed on one of the rare days when the ILB did not have time to prepare summaries.

Posted by Marcia Oddi on Thursday, October 27, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Chesterton: "Restraining order issued in Saturday deck collapse"

This Oct. 26th report in the Chesterton Tribune, from Kevin Nevers, has some interesting parallels to the State Fair stage collapse, including (although not pointed out in the story) the same attorney for the petitioner as in several of the State Fair suits. The story begins:

One of the party guests injured in the deck collapse on Saturday at the rear of the building at 135 S. Calumet Road has obtained a temporary restraining order forbidding the building’s owner or other parties from removing any part of the deck structure from the scene.

That restraining order was requested by Caitlin A. Scott as petitioner, names the building’s owner, Lois Maureen Kennoy, as respondent, and was granted by Porter Superior Court Judge Bill Alexa late on Monday.

Scott’s attorney, Kenneth J. Allen, told the Chesterton Tribune today that Scott is currently hospitalized with multiple fractures of the pelvis.

According to the restraining order, the “alteration, destruction, disposal, or loss of the deck and/or any of its associated materials” will “cause immediate and irreparable injury to the petitioner’s ability to inspect and investigate the circumstances and potential causes of the collapse and will impede or prevent the ultimate prosecution of any potential action for her personal injuries.”

“It’s important in a case like this to preserve the evidence,” Allen said. “In Indiana there is no obligation by the defendant to preserve the evidence, under fairly recent State Supreme Court case law. It’s incumbent on us to make sure the evidence is preserved and protected in such a way as for the jury to reach a just result.”

“The law typically presumes there is negligence when something like this happens,” Allen added. “We want to confirm that. Our preliminary assessment is that there is.”

Posted by Marcia Oddi on Thursday, October 27, 2011
Posted to Indiana Courts | Stage Collapse

Law - More on: "At least 93 Milwaukee police officers have been disciplined for violating law"

Updating this ILB entry from Oct. 24th, ere is Part 2 of the Milwaukee Journal-Sentinel investigative series by Gina Barton. The main story today is headed "Milwaukee police often face minimal punishment for driving drunk." There are also a number of accompanying stories on how the investigation was conducted, accessing personnel files. etc.

Posted by Marcia Oddi on Thursday, October 27, 2011
Posted to General Law Related

Ind. Gov't. - "New Indianapolis bike lanes causing confusion"

Richard Essex of WTHRTV13 had this report last evening. The comments are also worth reading. Those of us who drive on NY and Mich. streets in the downtown area are familiar with the new, narrow car lanes that no longer follow the contours of the roadway but swerve, jog, merge or just disappear without notice. What will happen in winter when the new lines are not visible?

Posted by Marcia Oddi on Thursday, October 27, 2011
Posted to Indiana Government

Wednesday, October 26, 2011

Ind. Gov't. - "Homeowners with cemeteries in yards keep history alive"

Long, really interesting feature story about pioneer cemeteries, by Will Higgins of the Indianapolis Star. Plus a nice slide show by Joe Vitta. Some quotes:

Pioneer cemeteries are by law the responsibility of township trustees, who care for them to varying degrees. Some cut the grass a few times a summer and leave it at that.

But in some townships, such as Washington and Warren, the trustees have gone further.

In the 1990s, Washington Township spent about $100,000 to repair headstones in its half-dozen pioneer cemeteries (the headstone restorer "was a trip, had one of those beards, looked like one of the ZZ Top guys," Peterson recalled); the trustee also researched precisely who's buried in the cemeteries.

"Every so often we get a call from someone coming through who wants to know where their great-great-great grandfather is," said Frank Short, the current trustee, "and we have an inventory and can direct them."

In Warren, trustee Jeff Bennett hired graduate students from IUPUI to research his dead. They discovered, among other things, that there was good reason Henry Brady's headstone was taller than the others -- the man was a doer: By the time he died (after 90 years, eight months and 17 days, it says on his headstone), he'd farmed, run a tavern, platted the town of Cumberland and served in the state legislature.

The plan is to use some of the grad students' research to help teach Indiana history to local fourth-graders.

Posted by Marcia Oddi on Wednesday, October 26, 2011
Posted to Indiana Government

Courts - Yet more on: Lobbyist linked to Abramoff quits Indianapolis firm [Updated]

Updating this ILB entry from Sept. 20th,2011, USA TODAY is reporting:

WASHINGTON (AP) – A former lobbyist who was a rising star under Jack Abramoff's tutelage was sentenced Wednesday to nearly two years in prison for giving public officials meals and event tickets. * * *

U.S. District Ellen Segal Huvelle * * * gave Ring a sentence of 20 months, one of the stiffest terms among the 21 defendants in the investigation. Most others involved cooperated with prosecutors and got plea deals that avoided prison.

[Updated] Here is more, from the WSJ Law Blog, and from the WSJ Washington Wire.

Posted by Marcia Oddi on Wednesday, October 26, 2011
Posted to Courts in general

Law - "New York State's wine shipment law praised"

From the Rochester NY Democrat & Chronicle, a long story by Cara Matthews -- some quotes:

ALBANY — A 2005 law allowing New York wineries to ship directly to out-of-state customers and wineries in other states to do the same with New York consumers has led to millions of dollars a year in tax revenue for state government.

Before 2005, individual customers in New York could get shipments from in-state wineries but not from out of state, according to state Liquor Authority Chairman Dennis Rosen, who spoke at a public hearing Tuesday on the impact of the law.

Six years later, more than 800 wineries from 15 states are registered with New York and can ship to New York consumers. Thirty-eight states allow some form of direct shipment, Rosen said.

The Liquor Authority has collected $431,375 in permit fees from wineries in the 15 states. Wineries that shipped directly reported $54 million in sales to New York consumers between March 2009 and February 2010, which yielded about $4.5 million in sales taxes, he said.

New York adopted a direct shipping law after the U.S. Supreme Court ruled that New York and Michigan had laws that unconstitutionally discriminated against wineries in other states. * * *

Rosen said that New York has turned down agreements with several states - Pennsylvania, Indiana and Kansas -- because their laws were ”insufficiently accommodating to New York wineries.” Maryland originally was turned down because it didn’t allow shipments from New York wineries, but it has since adopted a reciprocity law and ships to New York customers, he said.

Here is a long list of earlier ILB entries dealing with wine shipping.

Posted by Marcia Oddi on Wednesday, October 26, 2011
Posted to General Law Related

Environment - "Michigan will again ask the U.S. Supreme Court to hear its arguments on Asian carp"

From the story by Tina Lam of the Detroit Free Press:

The other states involved in the appeal are Minnesota, Ohio, Pennsylvania, and Wisconsin.

The appeal asks the Supreme Court to order the U.S. Army Corps of Engineers to install block nets in the Little Calumet and Grand Calumet rivers, two open pathways between the Mississippi River and Great Lakes basins, and to complete the separation study it is already working on in 18 months instead of five years. That study examines the feasibility of building permanent, physical barriers made of concrete or steel to close off the Chicago locks from Lake Michigan. Shipping and tour boat companies that use the Chicago waterways oppose the separation, saying it would be costly, force huge changes and take years to complete. Indiana and Illinois, where shipping interests are based, have not joined the lawsuit or appeal.

The Supreme Court already refused to hear an earlier appeal by the states involving Asian carp, but that was on a different legal question, an attempt to reopen a case from the last century which allowed the reversal of the Chicago River. The Supreme Court takes only a small percentage of appeals brought to it.

Posted by Marcia Oddi on Wednesday, October 26, 2011
Posted to Environment

Ind. Gov't. - "All about election polls"

The blog Stats Chat, from New Zealand, has an entry today on how to assess the worth of an election poll.

Posted by Marcia Oddi on Wednesday, October 26, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 6 today (and 23 NFP)

For publication opinions today (6):

In Anthony D. Laster v. State of Indiana , a 14-page opinion, Judge Crone concludes:

The trial court did not abuse its discretion by denying Laster’s motion for continuance; therefore, we affirm his convictions. We conclude that Laster’s sentence is inappropriate; therefore, we remand for the trial court to revise his sentence in accordance with this opinion.
In Hassan Alsheik v. Alice Guerrero, Individually and as Admin. of the Estate of Israel Arcuri , a 32-page opinion, Judge Riley writes:
Appellant-Defendant, Hassan I. Alsheik, M.D. ( Dr. Alsheik), appeals the jury‘s award of damages in the amount of $1,165,000 to Appellee-Plaintiff, Alice Guerrero, Individually and as Administratrix of the Estate of I.A., Deceased (Guerrero), following Guerrero‘s Complaint for medical malpractice. * * *

Based on the foregoing, we hold that (1) the trial court properly admitted the results of the second autopsy which was performed without notification to Dr. Alsheik; (2) the trial court did not abuse its discretion when it allowed Guerrero‘s pathologist to testify as an expert witness; and (3) the trial court did not abuse its discretion by admitting post-mortem photographs of the victim. On cross-appeal, we find that the trial court erred by denying Guerrero‘s request for pre-judgment interest and we remand to the trial court for determination of the pre-judgment interest.

In Jeff Castetter, Tony Jones, David Strode and Matthew Hickey v. Lawrence Township , a 16-page opinion, Judge Bailey writes:
The parties raise several issues for our review, which we restate, reorder, and consolidate into the following two issues: I. Whether the appeal is moot; and II. Whether the trial court erred when it denied the Appellants' motion for summary judgment and granted Lawrence's motion for summary judgment. * * *

[E]ven if an appeal is moot or no practical remedy is available to the parties, we can still review issues under the public interest exception when the case involves a question of great public importance which is likely to recur. * * *

The trial court did not err in denying summary judgment to the Appellants and granting summary judgment to Lawrence. The decisions of Lawrence and the Merit Commission were position-directed decisions, made in good faith, and not for the purpose of improperly demoting the Appellants for cause or any other purpose.

In Homestead Finance Corporation v. Southwood Manor L.P. d/b/a Village Green of Southwood Manor and d/b/a Village Green Mobile Home Park, an 8-page opinion, Judge Bradford writes:
We conclude that Homestead was no longer subject to the Park Owner’s Lien statute once it released its liens on the mobile homes in question. As such, we reverse and remand with instructions to enter judgment in favor of Homestead such that it is not liable for any lot rent that accrued for any of the three lots in question after it released its liens on the mobile homes.
In Danielle Garrett v. State of Indiana , an 8-page opinion, defendant pleaded a Barnes defense. Judge Friedlander writes:
Following a bench trial, Danielle Garrett was convicted of Battery on a Law Enforcement Officer and Resisting Law Enforcement, both class A misdemeanors. On appeal, Garrett presents one issue for our review: Is the evidence sufficient to support her conviction for resisting law enforcement? We affirm. * * *

Given that Garrett has failed to establish an unlawful entry and our conclusion that her resistance was not reasonable, the rule announced in Barnes is not applicable to the present case. Notwithstanding, the Barnes decision does not present an ex post facto problem in this case. It has long been established that battery against a police officer is not reasonable resistance under the common law. See Barnes v. State, 946 N.E.2d 572; Robinson v. State, 814 N.E.2d 704 (Ind. Ct. App. 2004). Thus, even prior to Barnes, Garrett’s conduct in forcefully combating the officer(s) after she acquiesced in their presence in her home was unlawful. The evidence presented was sufficient to prove that Garrett knowingly or intentionally forcibly resisted, obstructed, or interfered with a law enforcement officer while the officer was lawfully engaged in the execution of his duties.

In Dustin T. Allen v. State of Indiana, a 7-page opinion, Judge Bradford writes:
Appellant-Defendant Dustin T. Allen brings this interlocutory appeal, claiming that the trial court abused its discretion in denying his motion to dismiss. Allen argues that the dismissal of criminal charges was warranted because he was improperly subjected to a successive prosecution which was prohibited under Indiana Code section 35-41-4-4 (“the Successive Prosecution Statute”). Concluding that prosecuting Allen on subsequent charges after he had already pled guilty to other charges is barred under the Successive Prosecution Statute, we reverse the trial court's judgment denying Allen's motion to dismiss.
NFP civil opinions today (7):

In the Matter of the Paternity of J.W. and A.W. (NFP)

Maria Bodor v. Town of Lowell, Indiana; Board of Zoning of the Town of Lowell, Indiana; Wilbur Cox; and Frank Lagace (NFP)

Protect-All Insurance Agency, Inc., Robert H. Drake, Jr., and Kevin Surface v. James E. Surface, Sr., and Allied Kitchen Equipment Sales, Inc. (NFP)

Craig S. Conrad v. Review Board of the Indiana Department of Workforce Development (NFP)

Term. of Parent-Child Rel. of A.R.S. and A.L.S.; L.S. and X.K. v. Indiana Dept. of Child Services (NFP)

Term. of Parent-Child Rel. of A.J.H.; M.D. v. Indiana Dept. of Child Services and Lake County CASA (NFP)

Demetreous A. Brown, Sr. v. Elisha J. Gray and Paul A. Brown (NFP)

NFP criminal opinions today (16):

Jason Edward Thomas v. State of Indiana (NFP)

Stephen Grady v. State of Indiana (NFP)

Earl Lee Russelburg v. State of Indiana (NFP)

Daniel J. Harvey v. State of Indiana (NFP)

Arlene M. Doub v. State of Indiana (NFP)

Anthony Williams v. State of Indiana (NFP)

Tenzin Tamding v. State of Indiana (NFP)

Phillip Buhrt v. State of Indiana (NFP)

Aaron Spencer v. State of Indiana (NFP)

Daniel Stovall v. State of Indiana (NFP)

Chester Lloyd v. State of Indiana (NFP)

Christopher Carter v. State of Indiana (NFP)

Floyd McQueen v. State of Indiana (NFP)

Adam Williams v. State of Indiana (NFP)

Norman Trent v. State of Indiana (NFP)

Kevin Brown v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 26, 2011
Posted to Ind. App.Ct. Decisions

Tuesday, October 25, 2011

Ind. Decisions - Tax Court posts one NFP today

In AE Outfitters Retail Co. v. Indiana Dept. of State Revenue (NFP), a 6-page opinion, Sr. Judge Fisher writes:

The issue for the Court to decide is whether the Department must apply each of the methodologies listed in Indiana Code sections 6-3-2-2(l) and (m) before it may compel a taxpayer to report its Indiana AGI liability using a combined income tax return under Indiana Code section 6-3-2-2(p). * * *

Indiana Code section 6-3-2-2(p) requires that the Department apply all of the methodologies in sections 6-3-2-2(l) and (m) before it may require a taxpayer to report its AGI liability via a combined income tax return. Consequently, AE Outfitters’ motion for partial summary judgment is GRANTED.

Posted by Marcia Oddi on Tuesday, October 25, 2011
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 11 today (and 18 NFP)

For publication opinions today (12):

Dejuan Hill v. State of Indiana

Dewand A. Hardin v. State of Indiana

Donald K. Haire and Julie A. Haire v. Andrew Parker

T.R. v. Review Board of the Indiana Dept. of Workforce Development

Timothy W. Plank, Individually and as Personal Representative of the Estate of Debra L. Plank, Deceased v. Community Hospitals of Indiana, Inc. and State of Indiana

Victor Jeffrey and Lynell Jeffrey v. The Methodist Hospitals, Paul Okolocha, M.D., Okolocha Medical Corp., and Okolocha Medical, Pain and Weight

Skyline Roofing & Sheet Metal Co. Inc. v. Ziolkowski Construction, Inc. and United Union of Roofers, Waterproofers and Allied Workers Local #26

Robert S. Troxell v. State of Indiana

Theothus Carter v. State of Indiana

Walter Lyles v. State of Indiana

Johnny Ray Jenkins v. State of Indiana

NFP civil opinions today (8):

Karen Neiswinger v. Nathaniel Lee and Robert Delaney (NFP)

David Lee Fist v. Carri Mullis (NFP)

Tracy L. Henningsen v. Tracy H. Henningsen (NFP)

Dorothy Chandler v. Chris Hair, individually, d/b/a C&C Construction and d/b/a Right Touch Services or another venture or partnership, and Jeff Norris (NFP)

Larry Gross, Jr. and Charles Johnson v. Erica Stephenson (NFP)

Timmy Nguyen and Timmy Nguyen d/b/a Indianapolis Vite Bao v. Hang T. and Thom T. Nguyen (NFP)

Lonnie Garner, Jr. v. Edwin Buss, Indiana Parole Board and D. Carneygee, Superintendent (NFP)

D.C. v. J.J. (NFP)

NFP criminal opinions today (10):

Jonathan Jones v. State of Indiana (NFP)

Santos Vasquez v. State of Indiana (NFP)

Isabelle Almodovar v. State of Indiana (NFP)

Henry Porter v. State of Indiana (NFP)

Milton Elliot v. State of Indiana (NFP)

Michael Englehardt v. State of Indiana (NFP)

Aaron D. Kelley, Jr. v. State of Indiana (NFP)

Roy L. Garrard v. State of Indiana (NFP)

Chris Davis v. State of Indiana (NFP)

Terry Taylor v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 25, 2011
Posted to Ind. App.Ct. Decisions

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

In US v. Barnes and Taylor (ND Ind., Springmann), a 23-page opinion, Judge Flaum writes:

Upon re-sentencing, a district court judge respectively sentenced Marlyn Barnes and Melvin Taylor to 292 months and 188 months of imprisonment for conspiring to possess with intent to distribute more than five kilograms of cocaine. In a successive appeal before this Court, Barnes and Taylor challenge those sentences. They argue that, in light of the Supreme Court’s recent decision in Pepper v. United States, 131 S. Ct. 1229 (2011), the district court did not properly entertain new arguments when it re-sentenced them. They also advance that the district court abused its discretion by re-sentencing them to the same number of months to which it sentenced them originally. Notably, these new sentences remain within Guideline range.

We affirm the judgment of the district court.

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

Ind. Decisions - Now updated: Transfer list for week ending October 21, 2011

Access the updated entry here.

Posted by Marcia Oddi on Tuesday, October 25, 2011
Posted to Indiana Transfer Lists

Ind. Gov't. - More on "State archives still waiting for new roof"

Updating this ILB entry from Oct. 4, 2009, which quoted a 2009 Indy Star story headed "Archives are at the mercy of nature: So far, efforts to provide rainproof way to store state's treasures have come up dry," along with a 2005 article I wrote for Res Gestae, the Fort Wayne Journal Gazette last Friday, Oct. 21st published a long editorial headed "Dripping on History." It makes a number of good points and concludes:

“It’s embarrassing for me as a native-born Hoosier,” [Curt Witcher, manager of the Genealogy Center at the Allen County Public Library] said. “There is no other state in the union that stores its archives in a leaky warehouse. All other states spend the money to protect their records even in these economic times.”

Maintaining the archive of official Indiana records is a primary state duty. The Commission on Public Records should ask the governor to, at a minimum, appoint a task force of public officials and private community leaders to find a better permanent home.

Posted by Marcia Oddi on Tuesday, October 25, 2011
Posted to Indiana Government

Ind. Gov't. - "Indy Council's map contract leaves out public"

A well worth-reading in full opinion piece today in the Indianapolis Star, by Julia Vaughn and Erin Kelley. Vaughn is policy director of Common Cause/Indiana. Kelley is leadership team member of the League of Women Voters of Indianapolis. The piece concludes:

Especially troubling in all of this is the movement toward a plan that gives Marion County citizens no input. The contract that Vaughn signed with Brooks requires no public meetings and does not provide for any public advice to guide the map drawing.

This is a sad reversal from 2002, when council Republicans made mapping software available and asked the public to submit maps. This time around, the process should be even more open and public, but it appears the current leadership would prefer to work outside public view.

Voters in Marion County deserve better. We insist that our elected leaders make redistricting a transparent process that includes guidance from diverse groups among the electorate. It's the right thing to do.

Posted by Marcia Oddi on Tuesday, October 25, 2011
Posted to Indiana Government

Not law - "The Wheel Reinvented"

Not law, but very cool, a new way to carry water in developing counties. A quote from the story at Singularity Hub:

Hendriske got the idea for the Q Drum while driving past villages near his home in South Africa. He saw people using wheelbarrows and old water drums to transport larger amounts of water and thought there must be a better way. The solution was so simple people wondered why no one had thought of it before. He made a prototype, offered it to the villagers, and, as he told Kopernik, where the drum is available for purchase, “They were crazy about this thing!”

Posted by Marcia Oddi on Tuesday, October 25, 2011
Posted to General News

Law - More on "School Debt A Long-Term Burden For Many Graduates"

Updating this ILB entry from Oct. 21st, a Fort Wayne Journal Gazette editorial from Oct. 24th, headed "Avoiding student debt," concludes:

ITT Technical Institute, a for-profit nationwide education provider headquartered in Carmel, had the state’s highest default rate, at 22.6 percent. Students appear to be heeding the federal government’s warnings about some for-profit schools, however. While other institutions are reporting record enrollment, ITT last week reported its new-student enrollment dropped 14 percent compared with the same period last year, and its third-quarter net income dropped from $93.2 million to $67.2 million.

New federal restrictions require for-profit colleges to ensure that at least 45 percent of former students are repaying their loans four years after leaving school. Other efforts are under way to ensure students aren’t misled about their prospects for paying off college debt. Indiana, at the attorney general’s direction, has joined a whistleblower lawsuit targeting a for-profit college accused of tempting recruiters with vacation trips in violation of federal law. Indiana and three other states joined the U.S. Justice Department suit against Education Management Corp. The company operates The Art Institute of Indianapolis and five Brown Mackie Colleges in Indiana, including a Fort Wayne campus at 3000 Coliseum Blvd. E.

Brown Mackie’s default rates aren’t available in the federal database, but the College Navigator website, www.nces.ed.gov/collegenavigator/, is an excellent tool to research net price, retention and graduation rates and more for all public, private and for-profit schools where financial aid can be used.

If young graduates can’t repay college loans, they can’t afford the products and services that drive the economy. They can’t buy homes, invest in businesses or support charities. Ensuring students have the best information available in choosing a school is the best way to ensure they can avoid crippling debt.

Posted by Marcia Oddi on Tuesday, October 25, 2011
Posted to Indiana Law

Law - "Iowa sex offender convictions rise, pushing up costs, data show"

Sentencing Law & Policy blog today points to this article in the Des Moines Iowa Register, reported by Lee Rood. The story begins:

The number of people convicted in Iowa for sex crimes has grown for each of the last five years, driving up the already growing cost to taxpayers of monitoring and imprisonment.

A draft of a new state report shows prisons are also housing sex offenders for longer periods of time and parole caseloads are growing significantly. By 2021, some 2,600 sex offenders are expected to be serving “special sentences” under a stringent state law passed in 2005, meaning they will be supervised after their prison release for 10 years or life depending on the seriousness of their crimes.

“The special sentence, particularly lifetime supervision, will increase the parole caseload by 78 percent in 10 years,” the draft report released this month by Iowa’s Division of Criminal and Juvenile Justice Planning found.

Posted by Marcia Oddi on Tuesday, October 25, 2011
Posted to General Law Related

Ind. Courts - More on "EFF and Five News Organizations Ask Indiana Court to Protect Anonymity of Indy Star Commenter"

Updating this ILB entry from July 9, 2011, the Court of Appeals has now granted and set a date for oral argument in IN RE: INDIANA NEWSPAPER, INC., D/B/A THE INDIANAPOLIS STAR (Case Number: 49 A 02 - 1103 - PL - 00234). It will take place in the Supreme Court Courtroom on Monday, Dec. 12, 2011 at 1:00 pm. THE SCHEDULED PANEL MEMBERS ARE JUDGES FRIEDLANDER, DARDEN,AND VAIDIK

Posted by Marcia Oddi on Tuesday, October 25, 2011
Posted to Indiana Courts

Monday, October 24, 2011

Law - "At least 93 Milwaukee police officers have been disciplined for violating law"

Here is a very impressive example of investigative reporting from the Milwaukee Journal Sentinel, the first of three parts.

Take a look at this page devoted to the stories. Amazing.

Posted by Marcia Oddi on Monday, October 24, 2011
Posted to General Law Related

Ind. Law - "Midwives who are not nurses may be breaking the law"

The Bloomington Herald-Times ($$$) ran a two-part series last week on midwives. Part 2, by Dann Denny, was on Indiana legal requirements. The long story begins:

Though it is perfectly legal for a mother to have her baby at home, it is illegal for an unlicensed midwife to practice midwifery by overseeing a home birth.

The state provides licensure for certified nurse midwives — registered nurses who have additional training in midwifery — but they must work in collaboration with a medical doctor if they want to prescribe medicine, which limits their ability to offer complete home birth care.

The state does not provide licensure for certified professional midwives, who lack a nursing degree. That means CPMs who attend home births are doing so illegally. Their certification is provided through a midwifery training facility.

Bob Miller, chief deputy prosecutor, said midwifery is considered a “practice of medicine,” and that in Indiana a license is required to practice medicine. “Consequently, the same statute that prohibits the unlicensed practice of medicine by doctors also covers midwives,” he said. “A doctor who practices without a license commits a Class C felony, punishable by a prison sentence of 2 to 8 years. A person who practices midwifery without a license commits a Class D felony, punishable by a prison sentence of 6 months to 3 years.”

This accompanying story is headed "Advocates seek licensing process for midwives." A few quotes:
There are 28 states that legally recognize certified professional midwives by offering them licensure.

Home birth advocates want Indiana to be No. 29.

“I think Indiana will join the others,” said Mary Ann Griffin, president of the Indiana Midwives Association. “No state has ever rescinded a state licensure program once it was enacted.” * * *

State Rep. Peggy Welch has sponsored legislation on two occasions that would have allowed CPMs to be licensed by the state to legally practice midwifery. It passed each time in the House but died in the Senate.

A H-T editorial today is titled "Indiana should take steps to license midwives." A quote:
Instead of providing obstacles to mothers who’d like professional help with home deliveries, Indiana should follow the lead of 28 other states and adopt legislation that would legally recognize and license certified professional midwives. Typically both academic instruction and on-the-job training is required for CPM licensure; licensure would serve as verification to patients and the public that the midwife has met these minimum requirements.

Posted by Marcia Oddi on Monday, October 24, 2011
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending October 21, 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 October 21, 2011. It is two pages (and 21 cases) long.

Three transfers were granted last week:

In addition, in Warren L. Williams, et al. v. David Orentlicher, et al., a Dec. 28, 2010, a 23-page, 2-1 COA opinion, the justices voted:
Dismissed - Shepard, C.J., Dickson and David, JJ., vote to dismiss the petition to transfer. Sullivan and Rucker, JJ., vote to deny the petition to transfer.

Posted by Marcia Oddi on Monday, October 24, 2011
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)

For publication opinions today (4):

In Gerald Broude v. State of Indiana, a 13-page opinion, Judge Baker writes:

Appellant-defendant Gerald Broude appeals his convictions for Child Molesting, three counts as class A felonies and one count as a class C felony. Specifically, Broude argues that the trial court erred when it admitted the victim’s testimony using a two-way closed circuit television, insofar as the State had not provided Broude with notice of its intent to have the victim testify outside the courtroom as required by statute. Additionally, Broude contends that there was insufficient evidence to sustain his conviction on one count of class A felony child molesting and that there was a material variance between the charging information and the proof presented at trial on a second count of class A felony child molesting.

Under these specific facts and circumstances, we conclude that the trial court did not err by permitting the victim to testify outside the courtroom. Specifically, Broude has failed to show prejudice, inasmuch as he was given additional time to negotiate a plea agreement with the State. And the fourteen-day continuance provided Broude with more time than he was afforded under the statute. Furthermore, given the victim’s deteriorated mental condition, as confirmed by her psychologist, it was more likely than not that she would have suffered emotional or mental harm if forced to testify in Broude’s presence.

In Christopher Allen Buchanan v. State of Indiana , an 11-page opinion, Judge Brown writes:
Christopher Allen Buchanan appeals his sentence for child molesting as a class B felony. Buchanan raises three issues, which we revise and restate as:

I. Whether the trial court erred in calculating the amount of credit time Buchanan was entitled to when it entered its judgment of conviction;
II. Whether the court erred in finding the age of the child victim as an aggravator;
III. Whether the court abused its discretion in sentencing him; and
IV. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.

Additionally, the State raises the issue of whether Buchanan waived his arguments by the terms of his plea agreement. We affirm.

In State of Indiana v. Skylor Gearlds , a 10-page opinion, Judge Vaidik writes:
Skylor Gearlds was charged with Class A misdemeanor operating a motor vehicle while suspended based on a previous violation within the past ten years pursuant to Indiana Code section 9-24-19-2. The trial court dismissed the misdemeanor charge because the statute contains a mistaken cross-reference allowing for a driving while suspended infraction to be enhanced when (1) the driver has a previous driving while suspended conviction and (2) the previous conviction is within ten years of the commission of the previous offense. We conclude that although there is a mistake in the statute, it is clear that the legislature did not intend to elevate all driving while suspended offenses with prior convictions but rather only intended to elevate those offenses where the offender had a prior conviction within ten years of the new offense. Put differently, the statute was intended to proscribe less conduct than the literal words of the statute do. Because we find the statute enforceable in its current form and Gearlds' conduct is proscribed under either reading, we reverse the trial court and remand for further proceedings. * * *

But nevertheless, the legislature should amend Section 9-24-19-2 to remove the erroneous “subdivision (1)” language contained in subdivision (2) to avoid any future litigation over this issue.

In Ken Gunn v. State of Indiana , an 8-page opinion, Sr. Judge Sullivan writes:
Appellant Ken Gunn was charged with Class A misdemeanor carrying a handgun without a license. Ind. Code §§ 35-47-2-1 (2007), -23(c) (1997). He brings this interlocutory appeal from the trial court's denial of his motion to suppress evidence. Concluding that the evidence was obtained as the result of an unlawful traffic stop, we reverse. * * *

In making the left turn and entering southbound High School Road, the vehicle did not go into the lane closest to the center line but swung out into the outer lane. Believing that turning left into a lane other than the lane in the right half of the roadway closest to the center line was a traffic infraction, Officer Wendling initiated a traffic stop. * * *

Here, Officer Wendling initiated the traffic stop after observing Gunn's left turn because he believed Gunn had committed a traffic infraction by turning left into the outer lane instead of into the inner lane closest to the center line. Gunn asserts that the traffic stop was invalid because his left turn complied with the relevant statute. Whether Gunn's left turn constituted a traffic infraction presents an issue of statutory interpretation. * * *

The statute requires a driver making a left turn at an intersection to leave the first road “in that part of the right half of the roadway nearest the center line” and to enter the second road “to the right of the center line.” The statute does not specify which lane the driver must enter if there is more than one lane for traffic in that direction; rather, the only requirement is that the driver must enter a lane to the right of the center line. * * *

The State recognizes Indiana decisions determining that an officer's mistake of law can never be reasonable but nevertheless asks us to hold that there are certain situations when an officer's good faith belief, later found incorrect, may be objectively reasonable at the time of the officer's assessment and sufficient to justify an investigatory stop. We decline this invitation. * * * Reversed.
__________
[2} 2 The State cites the Indiana driver's manual, which states, “To turn left, be in the far left lane for your direction of travel.” Driver's Manual, Chapter 5, 54 (2011), http://www.in.gov/bmv/files/Drivers_Manual_Chapter_5.pdf (last visited Oct. 5, 2011). Though such advice may constitute wise policy, it is not a law of this state.

NFP civil opinions today (4):

Isaiah Wheeler v. State of Indiana (NFP)

In Re: The Matter of A.G. and A.M.; A.M. v. Allen County Dept. of Child Services (NFP)

John Shelton v. Daniel Keith Hoffman, Guardian of the Estate of Molly Dattilo (NFP)

Term. of Parent-Child Rel. of A.W.; T.H. and D.W. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (11):

Mark Williams v. State of Indiana (NFP)

Melvin Hall v. State of Indiana (NFP)

Cecil Dowell Freeman v. State of Indiana (NFP)

Ryan Grosswiler v. State of Indiana (NFP)

Jason Hough v. State of Indiana (NFP)

Sajjad Quayim Rasheed v. State of Indiana (NFP)

Zane Padgett v. State of Indiana (NFP)

Cynthia L. Ragsdale v. State of Indiana (NFP)

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

Shammy Wingo v. State of Indiana (NFP)

Steven Nowling v. State of Indiana

Posted by Marcia Oddi on Monday, October 24, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Too many secrets with Duke"

Following up on its Oct. 20th story, "Many documents on Duke's Edwardsport plant remain hidden from public," the Indianapolis Star has a worth reading editorial today. A sample:

As it faces IURC hearings into the soundness of its Edwardsport power plant and into allegations of fraud and coverup, Duke has surrendered a trove of useful information -- but not for the public's eyes.

Blanked out entirely, or virtually entirely, are communications such as:

A report to Duke's board of directors as to why the $2.9 billion power plant is costing roughly $1 billion over the original estimate.

A memo about Duke Chairman James Rogers' meeting with Gov. Mitch Daniels as Duke prepared to ask the IURC to let it pass huge cost overruns along to consumers.

Extensive documentation from an outside expert alleging Duke concealed information from regulators.

Posted by Marcia Oddi on Monday, October 24, 2011
Posted to Indiana Government

Ind. Courts - "Former deputy prosecutor Sean Persin to be sworn in as Tippecanoe magistrate"

The story is in the Lafayette Journal Courier. A quote:

http://www.jconline.com/article/20111024/NEWS/110240307/1001/news

Posted by Marcia Oddi on Monday, October 24, 2011
Posted to Indiana Courts

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

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

From Sunday, October 23, 2011:

From Saturday, October 22, 2011:

Posted by Marcia Oddi on Monday, October 24, 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 10/24/11):

Next week's oral arguments before the Supreme Court (week of 10/31/11):

Thursday, October 31st

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 10/24/11):

Next week's oral arguments before the Court of Appeals (week of 10/31/11):

Tuesday, November 1st

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, October 24, 2011
Posted to Upcoming Oral Arguments

Saturday, October 22, 2011

Ind. Decisions - "Appeals court criticizes rigid cash bond system in Decatur County; local judges say they’re careful to offer other options "

That is the headline to this story today in the Greenfield Daily Reporter, written by Noelle Steele. It begins:

GREENFIELD — Cash bonds remain the norm in Hancock County courts despite an appellate court ruling that chastised a Decatur County judge for refusing to allow a defendant to hire a bail bondsman as an alternative to forking over $25,000.

While uncommon, surety bonds are still an option in Hancock County courts, which means the Indiana Court of Appeals ruling won’t affect how business is done here, local judges say.

Judge Terry Snow of Hancock Superior Court 1 estimated that about 95 percent of the bonds set in his courtroom are cash only. In the vast majority of his cases, Snow said, he first sets a cash bond; then, when the defendant returns to court with a lawyer, there is the option to discuss whether a surety bond or a reduced cash bond is more appropriate.

Unfortunately, that is all that is available online; access to the rest of the story is limited to those subscribing to the print publication.

The ILB was, however, able to locate the "appellate court ruling that chastised a Decatur County judge." It is Melissa Kay Sneed v. State, an 11-page April 25, 2011 opinion by Chief Judge Robb, reversing in part an opinion by Matthew D. Bailey, Judge of the Decatur Superior Court. The portion alluded to in today's story begins on p. 9:

In addition to a reduction in the amount of bail, Sneed also requested that the trial court allow her to post a surety bond rather than requiring her to deposit the entire amount in cash. By statute, a trial court has several options regarding the manner of executing bail; it may require the defendant to: execute a bail bond with sufficient solvent sureties; deposit cash or securities in an amount equal to the bail; deposit cash or securities in an amount not less than ten percent of the bail, as a court-sponsored bond; execute a bond secured by real estate in the county, with requirements for the tax value of the real estate; post a real estate bond; or perform any combination of the above requirements. Ind. Code § 35-33-8-3.2(a). This statute, like the statute governing the amount of bail, “also places the manner of executing the bail within the discretion of the trial judge.” Mott, 490 N.E.2d at 1129 (interpreting similarly-worded predecessor statute, former Indiana Code section 35-33-8-3). In reviewing the trial court’s exercise of discretion, we look to the same factors as are relevant to setting the amount of bail. Id.

The record shows Sneed was without the funds to post the entire $25,000 in cash. Thus it is only proper to consider the type of bail set by the trial court. In effect, by denying Sneed the option of a surety bond provided by a bail bondsman, the trial court condemned her to jail pending trial without explicitly ordering her to be held or articulating any reason for doing so. While the severity of the charges supported a bond set at $25,000, the absence of any other factors suggesting Sneed was a flight risk leads us to conclude the trial court should have granted Sneed’s request for the option of a surety bond. Cf. Mott, 490 N.E.2d at 1129 (concluding based on statutory factors that trial court did not abuse its discretion by requiring a surety bond rather than ten percent cash bond).

We recognize and reaffirm that “the inability to procure the amount necessary to make bond does not in and of itself render the amount unreasonable.” Id. at 1128. Nonetheless, we conclude under the facts and circumstances of this case that the trial court abused its discretion by requiring cash only bail and denying Sneed’s request for the option of a surety bond. While we affirm the trial court’s decision not to reduce the amount of Sneed’s bond, we remand with instructions that the trial court give Sneed the option of a surety bond.

Posted by Marcia Oddi on Saturday, October 22, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "South Bend explores options in response to latest Family Dollar ruling"

Updating this ILB entry from Oct. 20th, Erin Blasko of the South Bend Tribune reports today in a story that begins:

The city is exploring its options after a judge on Wednesday blocked the sale of a piece of city-owned property to St. Joseph’s High School.

The city has 30 days to appeal the ruling by U.S. District Court Judge Robert L. Miller to the U.S. Court of Appeals, 2nd District, in Chicago or else come up with a legal way to dispose of the land.

Attorney Chuck Leone said Thursday the city plans to speak to the plaintiffs in the case as well as the high school about a possible solution to the matter that does not involve the legal system.

The plaintiffs are four city residents represented by the American Civil Liberties Union and American United for Separation of Church and State.

"The process we used still gave the impression that the city was acting in a way that supported a religious institution, and because of that, it was not an appropriate process to use," Leone said, interpreting the judge's ruling.

The ruling did not indicate what is an appropriate process, Leone said, but it made clear money is not the main issue, rather "the appearance of support of a religious institution."

One option, Leone said, would be for the city to declare the land surplus property, in which case it could then sell it to the highest bidder for no less than 90 percent of the average of two appraisals.

Posted by Marcia Oddi on Saturday, October 22, 2011
Posted to Ind Fed D.Ct. Decisions

Friday, October 21, 2011

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

For publication opinions today (2):

James K. White and Wells Fargo Bank v. Susan Orth, Allen County Treasurer, and Lisbeth A. Blosser, Allen County Auditor - The case posted is a duplicate of Badawi, below. Ft. 1 on p. 3 of each opinion states:

This case involves the resolution of two separately filed cases involving virtually identical parties. Because the circumstances of the cases and the issues addressed are the same, we decide these two separate cases together in one opinion. However, the two appendices are paginated differently, so we will refer to each separately, using the property owner‟s name to differentiate between the two.
In Rick Badawi and Wells Fargo Bank, N.A. v. Susan Orth, Allen County Treasurer and Lisbeth A. Blosser, Allen County Auditor, an 8-page opinion, Judge Kirsch writes:
Wells Fargo Bank, N.A. (“Wells Fargo”) appeals the trial court's orders overruling Wells Fargo's objection to the issuance of a tax deed to two pieces of real estate. Wells Fargo raises the following restated issue for our review: whether the trial court erred when it overruled Wells Fargo's objection to the issuance of the tax deeds because Wells Fargo contends that the Allen County Treasurer and the Allen County Auditor (collectively, “Allen County”) did not properly serve two tax sale notices upon Wells Fargo. We affirm. * * *

The sending of tax sale notices is governed by statute, and the fact that the Indiana Supreme Court has set out a different procedure in the trial rules for service of process upon organizations is of no moment. Under both Indiana Code section 6-1.1-25-4.5(d) and section 6-1.1-25.4.6(a)(2), tax sale notices are required to be sent to “any person with a substantial property interest of public record at the address for the person included in the public record that indicates the interest.” Nowhere in the statute does it require compliance with Trial Rule 4.6 when sending tax sale notices. In the present case, Allen County sent both of the tax sale notices at issue by certified mail, return receipt requested, to the address listed in the mortgage document and to another local address. Therefore, as the tax sale notices were sent in accordance with the statutory requirements, we conclude that they comported with due process requirements. The trial court did not err in overruling Wells Fargo's objections to the issuance of the tax deeds for the Real Estate because Allen County properly served the tax sale notices on Wells Fargo.

NFP civil opinions today (1):

Marc K. Bergman v. Cynthia Bergman (NFP)

NFP criminal opinions today (1):

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

Posted by Marcia Oddi on Friday, October 21, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Allen County Judges, magistrates dealt pay cut: County Council prunes probation staff; sheriff cries foul"

From Vivian Sade of the Fort Wayne Journal Gazette:

The Allen County Council approved pay cuts Thursday for 19 county judges and magistrates.

The council also moved the salaries of two probation officers out of the general fund, leaving court personnel to find other means to maintain those salaries and positions. And all sworn officers in the Allen County Sheriff’s Department will contribute 6 percent toward their retirement fund instead of the 3 percent they were paying. * * *

Allen County judges – who are paid mostly by the state – will each get a $5,000 annual cut in pay after council members voted to eliminate the county subsidies to their salaries. That, in turn, will also affect magistrates, Vogt said, who also will see pay cuts. The state pays county judges $125,647.

The move will save the county about $100,000, Vogt said, and the cuts amount to a salary decrease of about 3.9 percent for court officials.

Allen Superior Court Judge John Surbeck declined to comment.

ILB: Here are two stories on a similar effort made in 2006 in Grant County:

Posted by Marcia Oddi on Friday, October 21, 2011
Posted to Indiana Courts

Law - "American Bar Association taking steps to ensure integrity of employment data from law schools"

The subhead to this column today in Ameet Sachdev's Chicago Law is "Some recent graduates have sued their law schools for advertising deceptively high rates of employment and misleading starting salaries." It begins:

The University of Illinois' recent admission that it had falsified admissions data at its law school isn't the only controversy over data collection going on in legal education.

The integrity of employment statistics posted by law schools has been called into question by recent graduates who have been unable to find work or are working in temporary jobs because of dramatic cutbacks in the legal profession. Stuck with massive student loans, some grads have sued their law schools for advertising deceptively high rates of employment and misleading starting salaries.

Their plight has recently caught the attention of Congress, turning mundane job statistics into a hot political issue for the Chicago-based American Bar Association. The ABA's Section of Legal Education and Admissions to the Bar accredits law schools.

Posted by Marcia Oddi on Friday, October 21, 2011
Posted to General Law Related

Law - "School Debt A Long-Term Burden For Many Graduates"

From NPR's Morning Edition, a story on how often unavoidable school debt, taken on by young, unwitting students, may dominate the rest of their lives.

Posted by Marcia Oddi on Friday, October 21, 2011
Posted to General Law Related

Law - More on sentencing, here at the national level

See this entry from Sentencing Law & Policy blog, quoting a story from Politico.

Posted by Marcia Oddi on Friday, October 21, 2011
Posted to General Law Related

Ind. Gov't. - Steve Johnson, Retired prosecutors’ advocate, drafted back into service on sentencing reform

Maureen Hayden of CNHI has the story, here in the New Albany News & Tribune. Some quotes from the lengthy report:

INDIANAPOLIS — Longtime prosecutors’ advocate Steve Johnson thought he was headed for retirement this spring, but he’s been drafted back into service to work on the contentious issue of sentencing reform.

Johnson, 64, retired in May as head of the Indiana Prosecuting Attorneys Council. But soon after, he was pressed into returning as a consultant to complete a critical assignment: Help figure out how to reduce Indiana’s prison population without endangering public safety.

Johnson’s focus is on the 8,000 offenders in the Indiana Department of Corrections facilities who’ve been charged with the lowest level of felonies: forgeries, thefts, drug possessions and other nonviolent crimes.

“The question we’re asking is ‘Do they need to be in prison?’” Johnson said. “We need to figure out who’s going into the DOC and why?” * * *

Why some counties are sending high numbers of class D felons to state prisons — while other counties are putting them in county jails or local community-corrections programs — is a question that’s hard to answer. The DOC doesn’t keep the kind of detailed sentencing records on class D felons that they do on offenders charged with more serious crimes.

That’s why Johnson and others have successfully pushed for the state to start collecting and analyzing the records of class D felons in the state prisons to find out more about why they were sent there.

Johnson will be working with county prosecutors around the state and researchers from Indiana University Purdue University Indianapolis to ferret out that information. The Indiana Criminal Justice Institute has providing the funding for the research project.

“Before we can come up with a solution, we need to know what’s behind the problem,” Johnson said.

He faults the lack of good data for derailing the sentencing reform bill introduced in the last legislative session. Bill supporters argued that county prosecutors and judges were packing state prisons with low-risk offenders who were taking up the expensive bed space needed for more dangerous criminals.

Johnson and others questioned that contention and challenged the DOC data that the bill was built on. “We don’t think prosecutors were pushing to send first-time, low-risk offenders to prison,” Johnson said.

Posted by Marcia Oddi on Friday, October 21, 2011
Posted to Indiana Government | Indiana Law

Ind. Law - "Clearing a Criminal Record"

Following on a series of ILB entries (most recent here, from Oct. 17) on the new Indiana restricted access/expungement law, here is the link to a 28-slide presentation titled "Clearing a Criminal Record" from this week's ISBA annual meeting in French Lick.

Posted by Marcia Oddi on Friday, October 21, 2011
Posted to Indiana Law

Ind. Gov't. - Unfortunate story at Indy 6News

Headed "Ethics Scandal Zaps Former Duke Energy Attorney:Scott Storms Stripped Of Law License, Fined," the story from last evening concludes:

The state ruled that Storms violated Indiana ethics laws.

The ethics commission fined Storms and stripped him of his law license.

Storms has since appealed the rulings.

Wrong. Mr. Storms remains "Active in Good Standing." The Roll of Attorneys indicates no pending discipline. And discipline of attorneys is carried out only by the Supreme Court and its Disciplinary Commission, NOT by the State Ethics Commission.

Posted by Marcia Oddi on Friday, October 21, 2011
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - More on: Legislative Subcommittee on Barnes v. State to meet Thursday

Updating this entry from Oct 19th, here is a story by Ken Kusmer of the AP on yesterday's meeting. A quote:

Indiana residents could use reasonable force to resist police entry into their homes in certain situations under a proposed bill that lawmakers moved closer to adopting Thursday.

A legislative study panel reacting to a contentious Indiana Supreme Court ruling denying the right to resist illegal police entry into one's home agreed on language that would allow reasonable force to deny entry if residents don't know that it's police at their door or the officers aren't performing official duties.

The proposed legislation would not cover suspected cases of domestic violence or imminent harm, crimes in progress, hot pursuit of suspects, or the serving of warrants.

Panel member Rep. Linda Lawson, a former Hammond police officer with 25 years' experience, said the legislation was "vastly improved" from earlier discussions. Lawson said she was discouraged by what she characterized as the anti-police tone of earlier discussions and was wary before Thursday's meeting.

"I just didn't want it to be open season on law enforcement," said Lawson, a Democrat.

The panel is due to vote next week on its recommended legislation to the 2012 General Assembly. Any proposed bills still would need to gain approval from both chambers of the Legislature and Gov. Mitch Daniels.

According to the story, the bill would "provide statutory defenses to resisting police entry into a home":
saying people may use "reasonable force, including violent force" — if they believe it's necessary and have no alternative — to prevent entry into their home if they do not know it's police or if the officer is not performing official duties.

State Sen. Michael Young, R-Indianapolis, the primary author of the proposed legislation, said the exemptions including cases of imminent harm and hot pursuit were important to include to protect police. He noted the Barnes case involved a report of domestic violence in progress, and said that in many such cases victims will not speak out in the presence of their batterers.

"Police get the benefit of the doubt," said Andrew Hedges, the panel's attorney.

Separate legislation proposed by Sen. Tim Lanane, D-Anderson, would make it a Class D felony for law enforcement officers who knowingly enter a home illegally when it's not necessary to prevent injury or death. That language may be included in Young's proposed bill or may stand on its own.

The ILB does not have a copy of the bill draft. At some point, they may be posted here. Also at some point, the webcast of the Oct. 20th meeting may be available here.

Posted by Marcia Oddi on Friday, October 21, 2011
Posted to Indiana Government

Ind. Law - More on "Indiana exotic animal laws"

Updating yesterday's ILB entry, here is the Indianapolis Star story yesterday, reported by Mary Beth Schneider.

Also, the WSJ had an interactive table (may be $$$) headed "Where to Live if You Want to Own a Tiger."
It has four columns: Large Cats, Primates, Dangerous Reptiles, and Bears. Looking through the states, Ohio has "Allowed" in all four categories. Illinois and Kentucky have "Banned" in all four categories. Indiana has "allowed" checked under Primates; the remaining three categories are marked "Permit Required."

Posted by Marcia Oddi on Friday, October 21, 2011
Posted to Indiana Law

Ind. Decisions - More on: Oral argument tomorrow before the 7th Circuit in Planned Parent v. IN Dept. Of Health

Updating this Oct. 19th ILB entry, the oral argument in the appeal of Judge Pratt's 6/24/11 district court ruling granting preliminary injunction blocking parts of HEA 1210 took place yesterday in Chicago before a 3-judge, 7th Circuit panel consisting of Judge Diane S. Sykes, Judge Richard D. Cudahy and Judge Michael S. Kanne. You may listen to the entire oral argument here, via the 7th Circuit site.

Rick Callahan of the AP posted this story, headed "Indiana, Planned Parenthood in court over funding," yesterday.

This morning's Indianapolis Star has this story by Heather Gillers. A sample:

The new state law says "to qualify to be a Medicaid provider, you can't be an abortion provider," Indiana Solicitor General Thomas M. Fisher argued, according to an audio recording of the proceeding provided by the court.

"The Medicaid act specifically says, as one of the conditions of taking the money, we can set the qualifications, and that's all this is."

Kenneth Falk, legal director for the American Civil Liberties Union of Indiana, argued that providers could be disqualified only for Medicaid-related reasons, such as an invalid license or a conviction for Medicaid fraud, not the fact that the provider offers abortion services to privately paying clients without using Medicaid funds.

At least one judge on the panel seemed to share Falk's reading of the law.

"In what sense is (whether a provider offers abortions) a qualification?" Judge Diane S. Sykes asked Fisher.

"The fact that Planned Parenthood performs abortions doesn't have anything to do with the quality of the medical process," she said. "It's not akin to fraud . . . The problem I have with the state's interpretation of the phrase 'qualified' is that it's infinitely elastic. It can mean anything the state wants it to mean."

Here is coverage from Indy 6News.

Posted by Marcia Oddi on Friday, October 21, 2011
Posted to Ind Fed D.Ct. Decisions

Thursday, October 20, 2011

Ind. Decisions - Tax Court decides one today

In Grant County Assessor v. Kerasotes Showplace Theatres, LLC, a 12-page opinion, Sr. Judge Fisher writes:

On July 15, 2009, the Indiana Board of Tax Review (Indiana Board) issued a final determination valuing the Kerasotes Showplace 12 in Grant County, Indiana (the subject property) at $4,200,000 for the 2006 assessment. The Grant County Assessor (Assessor) now challenges that final determination. * * *

The issue presented to the Indiana Board to decide was whether, under Indiana’s market value-in-use standard, the subject property should be valued according to the terms of its lease (i.e., contract rent) or according to what other similar properties would garner in rent (i.e., market rent). (See Cert. Admin. R. at 39 ¶ 61.) Noting that there were no Indiana cases that provided guidance, the Indiana Board found a case, decided by the Wisconsin Supreme Court, to be particularly helpful in its analysis. * * *

In this case, the Indiana Board found that in determining what the subject property’s assessed value should be, the appraisal offered by Kerasotes was more persuasive than the appraisal offered by the Assessor. * * *

Based on the foregoing reasons, the Indiana Board’s final determination in this matter is AFFIRMED.

Posted by Marcia Oddi on Thursday, October 20, 2011
Posted to Ind. Tax Ct. Decisions

Ind. Courts - "Medical equipment provider settles with government"

Matt Thacker reports in the Jeffersonville News & Tribune in a long story:

JEFFERSONVILLE — The U.S. Attorney and Indiana Attorney General have reached an agreement with a Louisville company accused of using unlicensed personnel to set up medical equipment in Southern Indiana homes.

Premier Home Care agreed to pay $578,820 to the United States and $21,180 to Indiana, U.S. Attorney for the Southern District of Indiana Joseph Hogsett said at a press conference Wednesday. * * *

“[Premier] was accused of falsely certifying that licensed technicians had provided, installed or set up continuous positive airway pressure respiratory machines,” Hogsett said.

In 2008, a former Premier employee filed a sealed complaint, or a “whistleblower” lawsuit, in U.S. District Court in New Albany. Another complaint was filed in Clark County Superior Court No. 2.

The complaint alleged Premier violated the False Claims Act by falsely certifying it was in compliance with state licensure requirements, while it actually used unlicensed personnel to set up continuous positive air pressure and bi-level positive airway pressure respiratory machines.

The complaint further alleged Premier’s claims for payment to Medicare and Medicaid were false because the services were rendered by unqualified personnel. The Indiana Board of Respiratory Care issues licenses, according to the U.S. Attorney’s Office. A company cannot bill for equipment unless it is using licensed technicians. * * *

Supervising Deputy Attorney General Steve Hunt touted the cooperation between state agencies and the courage of the whistleblower, Michael Kaiser. The Indiana “whistleblower law” rewards people who report fraud on a government agency. They are entitled to between 15 percent and 25 percent of the government’s recovery.

Kaiser received about $108,000 from the total settlement.

Posted by Marcia Oddi on Thursday, October 20, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Tell City attorney pleads guilty to disorderly conduct"

A brief story in the Perry County News reports:

TELL CITY – A Tell City attorney arrested last year pleaded guilty to an amended charge Friday under terms of a plea agreement.

Michael H. Hagedorn pleaded to a Class B misdemeanor charge of disorderly conduct and was ordered to pay a $500 fine and $165 in court costs. Hagedorn represented himself at the afternoon hearing, presided over by Senior Judge Edward Campbell.

Hagedorn was charged with domestic battery after his arrest Oct. 22, 2010.

A probable-cause affidavit filed in the case alleged Hagedorn smashed a Styrofoam cup of hot coffee against the face of a woman, causing her pain.

Posted by Marcia Oddi on Thursday, October 20, 2011
Posted to Indiana Courts

Ind. Gov't. - Still more on "Move is afoot to collect sales tax from Amazon"

The ILB has received this from the Governor's press office:

MEDIA ADVISORY: Letter about online sales tax collection

OMB Director Chris Ruhl sent a letter to Rep. Bill Crawford to respond to concerns Rep. Crawford outlined in a recent memo about online sales tax collections. The letter includes results from an analysis of sales tax collection data gathered by the Office of Management and Budget.
Here is the interesting 2-page letter.

The legislative Commission on State Tax and Financing Policy met this morning, and "Internet sales and taxation" was on the agenda. However, Rep. Crawford's memo does not appear to be posted online.

Here is the long list of earlier ILB entries on amazon sales tax issues.

Posted by Marcia Oddi on Thursday, October 20, 2011
Posted to Indiana Government

Ind. Decisions - Following up 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"

This ILB entry from Sept. 10, 2011, included this quote from the South Bend Tribune:

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.

However, today WSBT-TV reports:
SOUTH BEND - A federal judge has once again denied the city's motion to sell the Family Dollar property to St. Joseph's High School. This time the selling price was $345,000.

In a 13-page ruling released Wednesday afternoon, the judge said the city's request to sell the property for less than its purchase price of $1.2 million violates the Establishment Clause of the First Amendment to the Constitution.

"We're obviously disappointed, but we really have to take a look at the ruling to determine what our next step is," said city attorney Chuck Leone.

The city first tried selling that land to St. Joseph's earlier this year for $1 but the judge ruled that sale unconstitutional. The city then took the average of two appraisals and came up with its latest asking price of $345,000.

Those who have fought the sale from the beginning say it violates the separation of church and state. The deal was challenged in court by four taxpayers represented by Americans United for Separation of Church and State and the Indiana ACLU.

"The judge clearly saw that the city was attempting an end run around the courts earlier decision," said Ayesha N. Khan, Americans United legal director, in a news release. "The decision makes clear that the city cannot give preferential treatment to St. Joseph's over other potential bidders.

"This is an important victory for the taxpayers of South Bend. Public funds should never be spent to support churches or church schools. I hope this makes the council realize that its time to respect the separation of church and state."

The SB Tribune includes a link to Judge Miller's 13-page, Oct. 19, 2011 opinion.

Posted by Marcia Oddi on Thursday, October 20, 2011
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (2):

In Beth Ann Johnson, Mother of: Emily Johnson, Deceased Minor Child v. Lance Jacobs, Steven J. Cummins, Stacy Cummings, Lawrence County Board of Aviation Commissioners, Tony Newbold, Lawrence Co. Comm., a 16-page opinion, Judge Baaker writes:

Eric Johnson and his estranged wife, Beth, were in the midst of a divorce. Eric was taking flight lessons and in March 2007, he took Emily, their eight-year-old daughter, on a solo airplane flight in Lawrence County. Lawrence County consists of 448 square miles with a population of nearly 46,000. Eric crashed the plane into Vivian Pace’s house, killing himself and Emily. Pace is Beth’s mother, and her residence is one of approximately 18,500 in Lawrence County.

Beth sued the Lawrence County Board of Aviation Commissioners (Aviation Board), Eric’s Flight Instructor, Tony Newbold, and the Lawrence County Commissioners (collectively, the appellees) seeking damages for Emily’s wrongful death. Summary judgment was entered for all defendants. The undisputed designated evidence contained in the record establishes that Eric intentionally flew the airplane he had rented into his mother-in-law’s house. Thus, any negligence that might be attributed to the defendants was superseded by Eric’s intentional acts of flying the airplane into the residence and killing Emily.

Appellant-plaintiff Beth Ann Johnson, the mother of Emily, a minor child, now deceased, appeals the trial court’s grant of summary judgment in favor of the appellees. Beth argues that the designated evidence did not establish, as a matter of law, that Eric committed suicide and intentionally killed Emily when he flew the airplane into the house.

In the alternative, Beth argues that even if it could be assumed that Eric’s acts were intentional, the trial court erred in determining that the misuse of an aircraft was not a foreseeable consequence of the airport’s non-existent security procedures.

Concluding that the trial court properly entered summary judgment for the appellees because Eric’s intentional acts were a superseding intervening cause between any alleged negligence of the appellees and Emily’s death, we affirm.

In Citimortgage, Inc. v. Shannon S. Barabas a/k/a Shannon Sheets Barabas, ReCasa Financial Group, LLC, and Rick A. Sanders , on a petition for rehearing, Judge Riley in a one-page opinion writes in part:
We grant Citi’s petition for rehearing to clarify our reasoning, but reaffirm our opinion in all respects.
CJ Robb concurs, J Brown writes in a concur/dissent:
I concur in that part of the opinion on rehearing in which the majority agrees that the correct interpretation of Ind. Code § 32-29-8-3 is that the one-year redemption period
begins after the sale of the property, not after Citi first acquired an interest in the property.

For the reasons set forth in my original dissent, I respectfully dissent from the remainder of the opinion on rehearing.

NFP civil opinions today (1):

Chase Home Finance, LLC v. Nicholas George Bobis (NFP)

NFP criminal opinions today (1):

Thedell Polk v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 20, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Alexandria mayor says city will not replace court judge"

Sam Brattain reports in the Anderson Herald Bulletin:

ALEXANDRIA, Ind. — Mayor Jack Woods said on Wednesday that he does not intend to replace City Court Judge Brandy Goodman.

Goodman submitted a letter of resignation to Gov. Mitch Daniels on Oct. 12. Woods said he asked the city council during a meeting Monday to revoke the ordinance for city court.

Woods said Goodman had advised him that she would be resigning. Woods said he had been evaluating the need for a city court.

“This kind of fell in our lap,” Woods said.

Posted by Marcia Oddi on Thursday, October 20, 2011
Posted to Indiana Courts

Ind. Gov't. - "Marion County declines White's special prosecutor request on Bayhs"

Updating this ILB entry from Oct. 13th, headed "Still more on: Charlie White, private citizen, files criminal complaint with prosecutor," WTHR 13 reported late this morning:

The Marion County prosecutor has turned down Secretary of State Charlie White's request to appoint a special prosecutor to investigate allegations of voter fraud by Evan and Susan Bayh.

White claimed that the Bayhs were improperly registered to vote. The prosecutor says White didn't provide enough evidence to warrant an investigation.

"In essence, Mr. White alleges that Mr. and Mrs. Bayh have committed voter fraud by voting in the May, 2011, Indiana primary because they maintain residences in both Washington, D.C., and Marion County, Indiana. The mere fact that a person maintains a residence in a state other than Indiana - even if the out-of-state property is more valuable than the Indiana property - is insufficient to conclude that the person has committed fraud by voting in Indiana," the Marion County prosecutor's office said in a statement released Thursday.

The prosecutor's office says the documents White attached to prove his point actually seem to support the idea that the Bayhs do not intend to abandon Marion County as their residence.

And this is interesting, recalling that White filed his complaint as a private citizen:
Also, White could be in trouble over the way he obtained the Bayhs' records.

"It appears that Mr. White may have used his official position to access, gather, and disseminate otherwise confidential voter information attached to his complaint. The Election Board thus also has the ability to determine the proper usage of confidential voter information contained in Mr. White's complaint," the prosecutor's office said.

Posted by Marcia Oddi on Thursday, October 20, 2011
Posted to Indiana Government

Law - "The Potential Consequences of Adult Adoption for Inheritance: A Recent Virginia Supreme Court Ruling"

Fascinating article by Hofstra law prof Joanna L. Grossman on Justica.com.

Posted by Marcia Oddi on Thursday, October 20, 2011
Posted to General Law Related

Ind. Courts - "Treatment of suicidal woman who killed her infant is protested"

Updating this long list of ILB entries on Bei Bei Shuai, the most recent of which was July 28, 2011, Bill Booher of the Indianapolis Star reports today on yesterday's protest. Some quotes:

They were protesting the murder and attempted feticide charges filed in March by the Marion County prosecutor's office against Shuai, 35, Indianapolis. The native of China is accused in the death of her newborn daughter after ingesting rat poison in a suicide attempt in December while she was about 33 weeks pregnant.

The infant died just a few days after birth by cesarean section, a procedure to which Shuai consented.

Welcoming the small group was Linda Pence, attorney for Shuai, who said the Indiana Court of Appeals is considering two appeals in the case, the first filed months ago appealing Marion Superior Court Judge Sheila Carlisle's decision to deny Shuai bond.

A new appeal was filed Monday seeking dismissal of the charges on several grounds, including that attempting suicide is not a crime in Indiana and the state may not create a new crime just for pregnant women.

Prosecutors maintain Shuai took the rat poison with intent to kill the fetus she was carrying. Pence maintains Shuai was only trying to kill herself and didn't know rat poison here is 60 times less potent than in China.

Shuai has been in jail since mid-March
, and the case is on hold in court pending the outcome of the appeals, Pence said. [ILB: Or has she been jailed since Dec. 2010?]

Note from the July 28th story that:
On June 27th, the Court of Appeals granted the motion for expedited appeal.

Posted by Marcia Oddi on Thursday, October 20, 2011
Posted to Indiana Courts

Ind. Law - "Indiana exotic animal laws"

Jennifer Carmack of WTHR 13NEWS has a brief story - some quotes:

In the state of Indiana, the exotic animal licensing laws are fairly strict for private owners. * * *

But in Ohio, there are no state exotic animal laws which opened the door for the situation in Zainesville to unfold.

Here is a "Summary of State Laws Relating to Private Possession of Exotic Animals" prepared by BornFreeUSA.

"Exotic Animal Laws Vary from State to State" is the heading to a comprehensive ABC News story by Ben Forer.

Posted by Marcia Oddi on Thursday, October 20, 2011
Posted to Indiana Law

Ind. Gov't. - Duke Energy, the Edwardsport plant, and the IURC scandal back in news today

"Ethics scandal costs Duke Energy in two rulings" is the headline to this lengthy story by Chris O'Malley in the Indianapolis Business Journal. Yesterday, Oct. 17th the IURC:

reversed a ruling made by former chief counsel and administrative law judge Scott Storms. It would have allowed Duke at its next rate case to seek to recover from ratepayers $12 million in costs the utility incurred during a 2009 ice storm.

Also on Wednesday, the commission dismissed a case handled by Storms in which Duke sought permission to tap ratepayers to install "smart" electric meters in central Indiana to help better regulate loads. That project was estimated to cost $22 million.

The case in which Duke sought to collect storm damage costs is most notable. It was the only Scott Storms case the commission decided to reopen for further review after the ethics scandal came to light last year.

Near the end of the long story:
Kerwin Olson, interim executive director of utility watchdog group Citizens Action Coalition, said he was still trying to make sense of the IURC rulings late Wednesday.

Olson noted that the commission in these two cases made decisions that centered on orders involving Storms. Yet the commission isn’t taking into consideration Storms’ rulings involving Duke’s controversial Edwardsport coal-gasification plant, which has $530 million in cost overruns.

“I fail to understand the difference,” Olson said.

From the Indianapolis Star today, no mention of the yesterday's rulings, but a very long front-page story by John Russell headed "Many documents on Duke's Edwardsport plant remain hidden from public." Like the IBJ story, the Star story is meaty and should be read in full. "Duke Energy's $2.9 billion Edwardsport power plant will take center stage in two hearings starting next week. One hearing "will review the plant's progress reports, cost estimate increases, the need for additional capacity and how reasonable it is to continue the project." The other "will address allegations against Duke of fraud, concealment and gross mismanagement." The focus of the story is the redaction of much of the content of many of the documents to be used in the hearings:
Much of the hearings could wind up being held behind closed doors. Every time a redacted document is brought up for discussion, the commissioners will have to clear the hearing room.
More from the story:
Tim Stewart, a lawyer for Lewis & Kappes, which represents Duke's industrial customers, said he is working with Duke to unredact "substantially all" of its testimony. But as of Wednesday, the two sides had not reached an agreement.

He said his clients have been frustrated by the sweeping redactions. For example, one of Stewart's witnesses is Michael Banta, a retired utility lawyer and former executive with Indianapolis Power & Light Co. Banta testified in writing, prior to the hearings, that Duke concealed vital information from Indiana regulators. But more than 80 pages of his testimony have been redacted by Duke as "confidential."

Another redaction keeps secret a meeting with Daniels.

Duke met privately with regulators and other state officials to discuss the plant but said it did not break any laws because the meetings were only procedural. Under state law, utilities and other interested parties are prohibited from holding private meetings with regulators on pending matters.

On Feb. 24, 2010, Duke CEO Rogers and his top lieutenants met with Hardy, then chairman of the IURC, at a private breakfast at the Capital Grille restaurant Downtown. Duke said it did so only to give Hardy a heads-up on the latest cost estimates at the plant.

Several hours later, Rogers was set to meet with Daniels when he and Turner received an email from Hardy with the subject line, "terseness."

"Whoever reports on the meeting might consider a one-word characterization and a number where you can be reached," Hardy wrote.

Turner wrote back: "Got it."

What was said in that meeting with the governor remains a mystery to outsiders. No report has ever been released to the public.

Posted by Marcia Oddi on Thursday, October 20, 2011
Posted to Indiana Government

Ind. Law - Great seminar today, but ...

It is the Criminal Justice Summit, which takes place from 9 a.m. to 3:45 p.m. today in the Wynne Courtroom of IU School of Law – Indianapolis. From the press release just received this morning:

Among the seminar speakers are University of Michigan Law School Professor Richard Friedman, a nationally respected defense expert on the Confrontation Clause of the Sixth Amendment. Other speakers at the summit will present the perspectives of Indiana prosecutors, defense attorneys and judges. More information about the program agenda and scheduled speakers is at this link.

For attorneys, attending the Attorney General’s second annual Criminal Justice Summit counts as 4.5 hours of free Continuing Legal Education credit.

Posted by Marcia Oddi on Thursday, October 20, 2011
Posted to Indiana Law

Wednesday, October 19, 2011

Courts - "John Stinneford on the Court’s Eighth Amendment jurisprudence"

From SCOTUSblog, this long entry by guest John Stinneford, summarizing his 80-page Virginia Law Review article. A sample:

The limited impact of the Supreme Court’s proportionality review is not the happy by-product of a criminal justice system that almost always imposes proportionate sentences. Rather, it is the result of the Court’s deliberate effort to limit proportionality review to a narrow range of cases, almost all of which involve the death penalty. In several recent cases, the Court has signaled a willingness to uphold virtually any sentence of imprisonment for virtually any felony offense without engaging in substantive proportionality review. For example, it upheld a sentence of twenty-five years to life for a recidivist who shoplifted three golf clubs and a sentence of fifty years to life for a recidivist who shoplifted videotapes on two occasions. In the wake of these decisions, lower courts have held that it is constitutional to impose a sentence of twenty-five years to life on a recidivist who commits a crime as minor as stealing a slice of pizza.

A review of the Supreme Court’s proportionality jurisprudence suggests three problems with the Court’s approach that have caused it to limit proportionality review to a small class of cases.

Posted by Marcia Oddi on Wednesday, October 19, 2011
Posted to Courts in general

Ind Decisions - "The Indiana COA has upheld the first malpractice judgment against former Merrillville nose doctor Mark Weinberger"

Today's 31-page COA decision in Mark S. Weinberger, M.D., Mark S. Weinberger, M.D., P.C., Merrillville Center for Advanced Surgery, LLC and Nose and Sinus Center, LLC v. William Boyer (ILB summary here) is the subject of a story this afternoon in the Gary Post-Tribune, reported by Teresa Auch Schultz.

Posted by Marcia Oddi on Wednesday, October 19, 2011
Posted to Ind. App.Ct. Decisions

Stage collapse - More on "State Fair seeking access to union's records on stagehands"

Updating this entry from yesterday, John Tuohy has an update this afternoon in the IndyStar that begins:

Lawyers for the state and a stagehands union moved closer to an agreement today on turning over documents related to the Indiana State Fair stage collapse.

A lawyer for the International Alliance of Theatrical Stage Employees Local 30 said he was willing to hand over apprenticeship training files on employees who worked the fair during the accident Aug. 13.

A court hearing this morning to resolve a dispute over a search warrant was continued until Nov. 3 before Marion Superior Judge David Shaheed.

But Shaheed extended until then a stay of the search warrant sought by Indiana Occupational Safety and Health Administration for those and other documents.

Posted by Marcia Oddi on Wednesday, October 19, 2011
Posted to Stage Collapse

Ind. Decisions - Oral argument tomorrow before the 7th Circuit in Planned Parent v. IN Dept. Of Health

Start with this Sept. 26th ILB entry for background. This is the appeal of Judge Pratt's 6/24/11 district court ruling granting preliminary injunction blocking parts of HEA 1210.

Charles Wilson of the AP has written a lengthy overview of the case, putting it in the nationwide context. Only a brief part of the story appears to have been picked up in Indiana papers. Here is what looks to be the complete version, as posted by FederalNewsRadio.com. A few quotes from the long story:

The two sides will make arguments Thursday to the 7th U.S. Circuit Court of Appeals in Chicago, and it's unlikely the legal skirmish will end there.

Indiana is one of the major fronts in a nationwide battle between social conservatives and Planned Parenthood. Gov. Mitch Daniels signed a law in May that made Indiana the first state to deny the organization Medicaid funds for general health services including cancer screenings.

State officials argued federal law bars Medicaid from covering abortions in most circumstances and that Planned Parenthood indirectly funds the procedures by mixing the Medicaid money with other revenue. Indiana's chapter won a temporary injunction in June to continue receiving the funds while the debate progresses through the court system.

State attorneys suggested in a brief filed in August that Planned Parenthood should just separate its services to ensure no public money goes toward abortion. While officials with the state group say they're open to that, the outcomes of similar battles in Missouri and Texas give them pause.

Texas set up a Medicaid waiver program in 2005 to provide family planning services for low-income women but banned abortion providers from receiving any of the funds. In response, that state's Planned Parenthood formed a separate abortion affiliate.

But Roger Evans, senior director for public policy for the national organization, said legislators later changed the rules to disqualify funding for any provider even affiliated with an abortion provider. The goal, he said, wasn't to stop abortion funding but to "hobble" Planned Parenthood itself.

"They're looking for ... every little tactic they can use," Evans said.

Indiana state Sen. Scott Schneider, author of the proposal to defund Planned Parenthood, called the organization's split in Texas a "superficial" one. He said the group simply "moved the abortions to the second floor."

Missouri's Planned Parenthood chapter split up in 2001 following a court ruling. Three years later, the Legislature largely eliminated state family planning funding, leaving thousands of low-income women who didn't qualify for Medicaid without any preventive health care, said Paula Gianino, president and CEO of Planned Parenthood of the St. Louis Region & Southwest Missouri.

Betty Cockrum, Planned Parenthood of Indiana's president and CEO, said she fears lawmakers eventually will decide to target the organization's non-abortion services, even if the law only aims for the abortion money.

"If that doesn't satisfy the Legislature, my question is, what's the shelf life? The Legislature might change the rules in 2013 or so," she said.

Posted by Marcia Oddi on Wednesday, October 19, 2011
Posted to Ind Fed D.Ct. Decisions

Law - "Opponents Say S.C.'s Voting Law Unfair For The Poor"

Supplementing this morning's ILB entry, Pam Fessler of NPR's All Things Considered >has a long story this afternoon -- some quotes:

You can't get a birth certificate without a Social Security card. You can't get a Social Security card without ID. You can't get the ID without either one of these. * * *

Brenda Williams, a local physician who has spent countless hours and thousands of dollars trying to help people — mostly low-income African-Americans — to get IDs says the problem is "widespread."

She says she's seen it all: no birth certificates, certificates with misspelled names and incorrect birth dates, certificates that only say things like "Baby Boy Montgomery." Many in this state were born years ago at home, with the help of a midwife, when paperwork wasn't a big deal, she explains.

"So here we have a gentleman — decent, honest American citizen — [who] has had to jump through hoops of fire in order to get a photo identification so that he could vote," says Williams.

And why, she asks?

Posted by Marcia Oddi on Wednesday, October 19, 2011
Posted to General Law Related

Ind. Decisions - Supreme Court issues on today, re sentencing

In Otha S. Hamilton v. State of Indiana, a 9-page opinion, Chief Justice Shepard writes:

A jury found appellant Otha S. Hamilton guilty on one count of molesting a child, as a class A felony. The trial court imposed a sentence of fifty years in prison. We affirm Hamilton's conviction and revise his sentence. * * *

Here, Hamilton engaged in a single act of sexual misconduct as opposed to a long-term pattern of abuse and violence. Hamilton's criminal history contained only two convictions, both far removed in time from his current offense and unrelated to sexual misconduct in general. Hamilton's remaining arrests showed no known dispositions one way or the other, thereby diminishing their weight for sentencing purposes. Although he violated a position of trust, it was not quite one that rose to the level of a stepfather who had close, daily contact with a stepdaughter, and Hamilton's victim, although still young, was not of tender years. Hamilton's threat to harm the victim's grandmother did not involve a specific threat but certainly warrants some weight.

We conclude that Hamilton has made out an adequate case for revision. We emphasize that placing an instance of sexual misconduct along a spectrum of heinous to horrific in no way diminishes the seriousness of any particular offense or the suffering of any particular victim. Instead, it is a necessary part of maintaining the proportionality between sentences and offenses, and of treating like cases alike.

Conclusion. We affirm Hamilton's conviction but remand with instructions to enter an amended sentence of thirty-five years in prison.

Posted by Marcia Oddi on Wednesday, October 19, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

For publication opinions today (3):

In Alan Massey v. State of Indiana , a 19-page opinion, Judge Crone writes:

We conclude that even though the jury was improperly instructed regarding the elements of voluntary manslaughter, Massey was not entitled to the voluntary manslaughter instruction in the first place because his girlfriend's words ending their relationship do not constitute sufficient provocation to induce sudden heat. Accordingly, we conclude that Massey did not receive ineffective assistance of trial counsel. As for appellate counsel's
failure to raise the sentencing issue, we conclude that Massey has failed to carry his burden to show that the issue was significant and obvious on the face of the record and clearly stronger than the other issues raised. Thus, Massey did not receive ineffective assistance of appellate counsel. Finding no error, we affirm the post-conviction court's judgment.
Carolyn S. Baird v. State of Indiana , an 8-page opinion, Chief Judge Robb writes:
Carolyn Baird appeals her convictions for operating a motor vehicle without financial responsibility, failure to register, failure to have the proper license for operating a motorcycle, all infractions, and driving while suspended with a prior conviction, a Class A misdemeanor. She raises two issues for our review, which we consolidate and restate as whether the State presented sufficient evidence to support her convictions. As to Baird’s three traffic infraction convictions, we conclude the evidence was sufficient to support her convictions. As to Baird’s conviction for driving while suspended with a prior conviction, we conclude the evidence was insufficient for that conviction, but we remand to the trial court with instructions to enter a conviction of the lesser included offense of driving while suspended, a Class A infraction. * * *

On September 1, 2010, Officer Karmire observed a three-wheeled “moped-motorcycle” traveling approximately forty miles per hour with no license plate. * * *

Baird argues her three traffic infractions should be reversed because the State failed to prove she was driving a “motor vehicle” or a “motorcycle” rather than a “motorized bicycle.” The success of her argument hinges on her interpretation of Indiana statutes that the term “motorized bicycle” is specifically excluded from the term “motor vehicle,” and that the only reasonable conclusion based on the evidence is that she was driving a “motorized bicycle” rather than a “motorcycle.” Because we conclude the evidence was sufficient to establish the vehicle was a “motorcycle,” which is a type of “motor vehicle,” we need not address her argument that “motorized bicycles” are excluded from the term “motor vehicle” for the purposes of the infraction statutes here at issue that require a “motor vehicle.”

In Mark S. Weinberger, M.D., Mark S. Weinberger, M.D., P.C., Merrillville Center for Advanced Surgery, LLC and Nose and Sinus Center, LLC v. William Boyer, a 31-page opinion, Judge Riley writes:
Appellants-Defendants, Mark S. Weinberger, M.D., (Weinberger), and Mark S. Weinberger, M.D., P.C. Merrillville Center for Advance Surgery, LLC, and Nose and Sinus Center, LLC. (collectively, the Weinberger Entities), appeal the jury's award of damages in the amount of $300,000 to Appellee-Plaintiff, William Boyer (Boyer), following Boyer's Complaint for medical malpractice.We affirm.
NFP civil opinions today (4):

Barker Industrial Park, Inc., Clara Barker and Charles E. Barker v. Ken Cut Lawn Service, Inc. (NFP)

Remy Inc. v. Ice Miller LLP and Kathy S. Kiefer (NFP)

Jeffrey J. Whitmer v. Nancy J. Whitmer (NFP)

Sergio Esqueda v. Alfredo and Maria Ponce (NFP)

NFP criminal opinions today (11):

Zachary Thomas v. State of Indiana (NFP)

Marquinn McGruder v. State of Indiana (NFP)

Danny L. Slaven v. State of Indiana (NFP)

Darren B. Stone v. State of Indiana (NFP)

K.B.S. v. State of Indiana (NFP)

Christopher Davies v. State of Indiana (NFP)

Kevin Legg v. State of Indiana (NFP)

James Lee v. State of Indiana (NFP)

Valentin Jaramillo v. State of Indiana (NFP)

Rumero Ziebell v. State of Indiana (NFP)

Ayron Saylors v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 19, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "The Moneyball of Campaign Advertising"

A two-part discussion by John Sides at Nate Silver's Political Calculus blog in the NY Times. Part 1, dated Oct. 5, 2011, and Part 2, dated Oct. 12, 2011.

Posted by Marcia Oddi on Wednesday, October 19, 2011
Posted to Indiana Government

Ind. Gov't. - Legislative Subcommittee on Barnes v. State to meet Thursday

From the news release issed by State Sen. Brent Steele (R-Bedford), Chair:

WHEN: Thursday, Oct. 20, 1 p.m.

WHERE: Senate Chamber, Statehouse (Broadcast Live Online: http://media.ihets.org/senate)

WHY: During this third meeting of the Subcommittee on Barnes v. State, Steele and other panel members will consider preliminary drafts of legislation that could be introduced during the 2012 session to clarify Indiana self-defense and search-and-seizure laws and protect Hoosiers’ Fourth Amendment rights.

In May, Indiana’s Supreme Court ruled on a Vanderburgh County case, Barnes v. State, in which a man questioned about a domestic violence call scuffled with a police officer who tried to enter his house without a warrant and against his will. At that time, the high court contended that “allowing (citizen) resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

After public outrage and requests by Steele and other lawmakers to reconsider their earlier decision, Indiana’s Supreme Court announced its affirmation of that ruling in September. It read, in part, “Our earlier opinion was not intended to, and did not, change that existing law about the right of the people to be secure in their persons, houses, and papers against unreasonable searches and seizures.”

Posted by Marcia Oddi on Wednesday, October 19, 2011
Posted to Indiana Government

Law - "South Carolina's new voter photo identification law appears to be hitting black precincts in the state the hardest"

An analysis by The Associated Press, reported by Jim Davenport in the Charleston SC Post and Courier, takes an in-depth look at the impact of South Carolina's new voter photo identification law. A quote:

[N]early half the voters who cast ballots at a historically black college in Columbia lack state-issued photo identification and could face problems voting in next year's presidential election, according to the analysis of precinct-level data provided by the State Election Commission.

The U.S. Justice Department has been reviewing the law for months under the federal Voting Rights Act.

South Carolina's photo identification law requires people to show a South Carolina driver's license or identification card, a military ID or passport when they vote. Without those forms of identification, they can still cast a provisional ballot or vote absentee.

The analysis shows that among the state's 2,134 precincts, there are 10 where nearly all of the law's affect falls on nonwhite voters who don't have a state- issued driver's license or ID card, a total of 1,977 voters.

Really interesting story.

Posted by Marcia Oddi on Wednesday, October 19, 2011
Posted to General Law Related

Ind. Gov't. - More on "Move is afoot to collect sales tax from Amazon"

"Lawmakers Want New Amazon Deal To Collect Sales Tax" is the heading to a story that ran last evening on Indy 6News. It begins:

Indiana lawmakers are looking to renegotiate the state's contract with Amazon.com in a push to recoup roughly $300 million in sales tax lost each year.

The company employs thousands of Hoosiers at distribution centers across the state, but unlike brick-and-mortar stores, the online retailer doesn't have to collect and remit sales tax.

State Rep. Bill Crawford, D-Indianapolis, and State Sen. Luke Kenley, R-Noblesville, are pushing for the governor to strike a new deal with Amazon, 6News' Kara Kenney reported.

It comes after the state of Tennessee announced Amazon will collect sales tax there starting in 2014.

"We just feel there was a need for us to renegotiate because, potentially, we're losing $200 million to $400 million a year in sales tax revenue," Crawford said. "(The money) could increase funding for public education, K-12 and higher education."

“I share Bill's concern about this and am working to get sales tax remittance, both by asking Amazon to remit, and by pushing federal legislation,” Kenley said. “Federal legislation is the only fair way ultimately to get everyone -- Amazon, eBay -- to pay and level the playing field for our brick-and-mortar retailers.”

[More] Maureen Hayden of CNHI News Service has two lengthy stories today, from two different states, exploring different aspects of the sales tax issue.

"E-commerce raises question of sales tax fairness," dateline Normal, Ill, Part I of the series, also has three side-bars. Here is a quote from the main story:

[Dick] Smith contends his outdoor-gear store in this central Illinois college town is forced to play by unfair tax rules that compel him to add almost 8 percent in sales tax to a customer's bill, but exclude his online competitors from the same burden.

“I have people come in here all the time who tell me they can get their gear cheaper online,” Smith said. “When I have to add on that sales tax, it isn't tough math to do.”

Smith is among a growing chorus of bricks-and-mortar small businesses protesting what they see as tax law inequities driving them to the brink by requiring they collect and remit sales taxes while their electronic counterparts prosper through tax-free goods and services.

"Conflicted politics deter sales tax reform," dateline Corsican, Texas, is Part II. It begins:
Byron Cook doesn't like the smell of taxes any more than his fellow Republican conservatives in the Texas Legislature. But he drew the line this summer on allowing millions of dollars in sales taxes to go uncollected.

Cook voted for a bill that requires online retailers like the electronic commerce giant Amazon to start collecting Texas sales taxes from their customers and remit the revenue to the state and local governments – just like bricks-and-mortar stores have always been obligated to do.

It was a polar opposite move to the tax-averse stance of conservative Republican lawmakers on the national stage, who view such legislation as a form of new taxation. But Cook and the GOP super-majority in the Texas Statehouse saw it as a fairness issue as well as a necessary measure to cope with the state’s $15 billion budget deficit.

Posted by Marcia Oddi on Wednesday, October 19, 2011
Posted to Indiana Government

Stage collapse - State Fair Advisory Committee unlikely to propose legislation

Today's Indianapolis Star has an expanded version of Heather Gillers' story on yesterday's meeting of the State Fair Advisory Committee. Some quotes:

The advisory committee is not the only body that can draft legislation: Any lawmaker can introduce a law affecting the State Fair. But so far, only one lawmaker, a Democrat, has done so.

That means the majority Republican legislature could go all session without approving any fair-related legislation, and plans for the 2012 fair -- including the contracting and inspection process (or lack thereof) for a new stage structure -- could go forward under the same laws that governed the process in 2011.

The two firms the state hired to investigate the collapse, Thornton Tomasetti and Witt Associates, expect their investigations to take six to eight months. But some experts already have identified what they think are common-sense safety measures that should be put in place now.

Several meteorologists, for example, have faulted State Fair officials for not evacuating the concert after a severe thunderstorm warning from the National Weather Service, which carries a recommendation to take cover. Lawmakers could make evacuation under such circumstances mandatory.

A Star review of inspection policies in other states and cities found that many inspect temporary stages like the one at the State Fair before use -- something that does not happen in Indiana. Gov. Mitch Daniels said in the wake of the collapse that requiring inspections of temporary stages might be worth considering.

Posted by Marcia Oddi on Wednesday, October 19, 2011
Posted to Stage Collapse

Tuesday, October 18, 2011

Ind. Law - Attorney Bob Hammerle involved in accident [Updated]

Jon Murray has tweeted:

Thoughts and prayers for Indy attorney Bob Hammerle, who was hit by a motorcycle while on foot. He's in stable condition at Methodist.
[Updated Oct. 19th] Here is a report by Eric Berman of WIBC:
A prominent Indianapolis defense attorney is in intensive care after being hit by a motorcycle.

Robert Hammerle's former law partner Steve Allen says Hammerle was leaving a Broad Ripple restaurant Monday when a motorcycle rounded a corner and ran into him. Allen says Hammerle was knocked down and banged his head on the pavement:

Allen says the head injury didn't require surgery, and says Hammerle is expected to recover, but says there's no telling how long that process will take.

Posted by Marcia Oddi on Tuesday, October 18, 2011
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Espiridion Estudillo v. Maria E. Estudillo, a 16-page opinion, Judge Vaidik writes:

Espiridion Estudillo (“Husband”) appeals the trial court’s property division in his dissolution proceedings with Maria Estudillo (“Wife”). Husband argues that the trial court erred by dividing the marital property unequally, including non-marital property in its distribution, and by failing to recognize his obligation to repay loans made to him by his brothers. We affirm. * * *

We find that the trial court did not err by determining that the extensive evidence of dissipation justified an unequal distribution of the marital property in this case.

NFP civil opinions today (1):

Timothy Platt v. Indianapolis Public Transportation Corporation (NFP)

NFP criminal opinions today (3):

Gregg Miller v. America's Directories Inc. and Studio A Advertising and Marketing (NFP)

Joaquin Starks v. State of Indiana (NFP)

Justin A. Van Brunt v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 18, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides two today

In Nathan Brock v. State of Indiana, a 16-page, 5-0 opinion, Justice Sullivan writes:

The defendant‟s first trial ended in a mistrial due to improper prejudicial comments made by defense counsel during closing argument. We hold that, although the defendant did not con-sent to the mistrial, his second trial did not violate the Double Jeopardy Clause of the Fifth Amendment because the trial court did not abuse its discretion in concluding that a mistrial was justified by manifest necessity.
In Jeffery W. Cain v. State of Indiana, a 12-page, 5-0 opinion in a direct appeal, Chief Justice Shepard writes:
Jeffery Cain was convicted of murder and robbery and sentenced to life without the possibility of parole. He appeals both his conviction and his sentence, claiming a co-defendant’s testimony was improperly admitted at the guilt phase of his trial and that the prosecutor made inappropriate arguments during the sentencing phase. We affirm.

Posted by Marcia Oddi on Tuesday, October 18, 2011
Posted to Ind. Sup.Ct. Decisions

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

In Bruce Barton v. Zimmer, Inc. (ND Ind., Springmann), an 18-page opinion, Judge Sykes writes:

Bruce Barton was employed in the sales-training department at Zimmer, Inc., an Indianabased manufacturer of orthopedic devices. In May 2004 Zimmer assigned Andy Richardson to supervise the department. During the course of the next year, Richardson removed many of Barton’s primary job duties because he thought Barton, age 57, was too old. Barton lodged an age-discrimination complaint with Richard Abel, Zimmer’s Vice President of Human Resources, and also with the Equal Employment Opportunity Commission (“EEOC”). Abel investigated the claim and eventually fired Richardson.

In the meantime, however, Barton went on medical leave, as authorized by the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. He remained on leave until shortly before Richardson was fired. Sherri Milton became the department’s new supervisor, and she assigned Barton to revamp one of Zimmer’s training classes. The pressure of this assignment proved too much for Barton. He suffered a psychological breakdown, exhausted his disability leave, and retired. He then sued Zimmer for discrimination and retaliation in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and for interference with his right to reinstatement under the FMLA. The district court granted summary judgment for Zimmer.

We affirm. Barton’s ADEA claims fail for lack of causation and any available remedy. Although the evidence, viewed in Barton’s favor, establishes that Richardson discriminated against him because of his age, the ADEA provides no remedy because the discrimination did not cause any loss and was not linked to the disability that later precipitated Barton’s early retirement. Moreover, there is no evidence that either Abel or Milton retaliated against Barton for complaining about Richardson’s discrimination. Finally, Barton has no claim under the FMLA because when he returned to work after his medical leave, the company assigned him equivalent duties without regard to his medical leave.

Posted by Marcia Oddi on Tuesday, October 18, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - AK Steel challenging constitutionality of tax measure that applies only to aging steel mills in the northern part of the state

Mark Wilson has the somewhat complicated story today in the Evansville Courier & Press. A few quotes:

AK Steel will continue to appeal its 2008 tax assessment on it main plant in Grass Township, valued at $311 million.

Alan McCoy, AK Steel spokesman, said the company is arguing a tax depreciation schedule created by the Indiana Legislature to aid the aging steel mills in the northern part of the state should apply to it too.

Both sides appeared before Chief Judge Richard Young in U.S. District Court at Indianapolis to confirm the agreement on Thursday. A trial to settle the dispute had been scheduled to begin Monday. * * *

The dispute began in 2004 when AK Steel filed a return for personal property tax that included depreciation that ultimately was denied by the county assessor, according to court records.

Court documents filed by Spencer County alleged the company was seeking to take advantage of an optional personal property tax depreciation schedule created by the Indiana Legislature in 2003 for steel mills with blast furnaces that was intended to help the antiquated steel mills of northern Indiana.

AK Steel’s Rockport Works, by comparison, is a state-of-the-art steel finishing facility built in 1997 and has no blast furnace.

Lindsey said the company is arguing it does operate a blast furnace but not at the Rockport plant, and the state law violates the interstate commerce clause of the United States Constitution. * * *

Spencer County officials lobbied lawmakers to clarify the legislation’s intent, according to court records.

As a result, in 2005, legislators amended the law to specify that it only applied to steel companies with blast furnaces in Indiana.

“That is what we believe is unconstitutional,” McCoy said.

Posted by Marcia Oddi on Tuesday, October 18, 2011
Posted to Indiana Courts

Stage collapse - Legislative State Fair Advisory Committee to tour fairgrounds today [Updated]

Here is the meeting agenda. It concludes:

Committee members are invited to take part in a walking tour led by the Indiana State Fair Commission following adjournment. The tour will include the Pepsi Coliseum, Discovery Hall, and Speed Barns.
Note that this is a permanent legislative committee (see IC 15-13-6) that has been in existence since at least 2008.

A story today in the Chicago Tribune by Tom LoBianco indicates that the Committee may have expanded its charge to include "the chronology of the collapse and the multiple investigations into it."

[Update at 2:11 pm] The content of the AP story cited above has been changed and is no longer available. However, this story from WSBT South Bend states:

The lawmakers met at 10 a.m. at the fairgrounds’ administration building. Cherry opened the meeting with a moment of silence in memory of the state collapse victims and the seven lives lost.

Democratic Rep. David Niezgodski said he wants to learn about the chronology of the collapse and the status of multiple investigations into the tragedy.

Heather Giller has posted a later story at IndyStar - some quotes:
The State Fair Advisory Committee is unlikely to offer any legislation aimed at preventing another stage collapse during the upcoming 2012 legislative session.

The group of lawmakers today concluded its last meeting before the session begins in January without any discussion of legislative changes in the wake of the Aug. 13 incident, which killed seven people.

Two key lawmakers on the committee, Chairman Rep. Bob Cherry and Sen. James Merritt, said after the meeting that they would prefer to wait until two independent investigations into the incident are complete, to consider new legislation. According to the governor's office, the investigations may not be complete until April -- after the legislative session is over.

Until then, said Cherry, a Republican from Greenfield, "we won't have the final report and anything we do is kind of a knee-jerk reaction."

Merritt, a Republican from Indianapolis, took a similar stance.

Asked if there is a possibility that no legislation will be put forward by the advisory committee this year, he said "there is a distinct possibility, because of the timeframe" of the investigation. * * *

Just because State Fair Advisory Committee does not introduce legislation does not mean none will be discussed. Any legislator -- not just a member of the Advisory Committee -- can introduce a bill on that issue. Indeed, Rep. Ed DeLaney, a Democrat from Indianapolis, has already said he wants to increase the $5 million cap on state payouts to collapse victims.

But Cherry, who as chairman of the Advisory Committee is a likely candidate to sponsor or at least oversee the introduction of fair-related legislation, said he would not "speculate" on whether any legislation would come out of his committee.

"Not everything we have to put in statute," Cherry said.

Posted by Marcia Oddi on Tuesday, October 18, 2011
Posted to Stage Collapse

Stage collapse - "State Fair seeking access to union's records on stagehands"

John Tuohy reports today in the Indianapolis Star:

A Marion County judge Wednesday will be asked to decide whether state officials probing the stage rigging collapse at the Indiana State Fair have the authority to search for records at the local stagehands' union hall.

The International Alliance of Theatrical Stage Employees Local 30 is contesting the warrant that seeks information on stagehand Nathan Byrd, who was killed in the collapse. At least nine other union workers were injured.

Officials of the Indiana Occupational Safety and Health Administration tried to search the union hall Thursday but were turned away. The next day, Marion Superior Court Judge David Shaheed issued a stay of the search and scheduled a hearing.

Shaheed, who issued the initial warrant granting IOSHA access to the union hall, will hear the case at 10:30 a.m. Wednesday. * * *

The dispute over the search warrant stems from IOSHA's request for Local 30 training and employment records. The agency also wants to interview the union workers who assembled the stage rigging.

Union lawyer William Groth contends there is no basis for the warrant because the union hall is not a work site and the union was not the stagehands' employer. The Indiana State Fair Commission was.

"They (the union) are not subject to IOSHA's jurisdiction," Groth said.

But IOSHA, which investigates serious workplace accidents, said it needs the records to do a thorough investigation. * * *

Groth said the warrant was overly broad and the agency could have subpoenaed specific documents, a less intrusive method of information gathering.

"At least then it's manageable and I can go through them on a case-by-case basis," he said.

The warrant sought employment disciplinary records, apprenticeship training records, certificates, licenses and OSHA logs.

"The union doesn't even keep OSHA logs; that's an employer's responsibility," Groth said.

Posted by Marcia Oddi on Tuesday, October 18, 2011
Posted to Stage Collapse

Ind. Gov't. - "Butch Morgan, St. Joe Democratic chairman, resigns his position"

Kevin Allen reports today in the South Bend Tribune:

SOUTH BEND -- St. Joseph County Democratic Party Chairman Butch Morgan has resigned in reaction to reports that hundreds of signatures were faked on petitions that qualified Democratic presidential candidates for the 2008 Indiana primary.

Morgan, who also resigned as Democratic chairman for the state's 2nd Congressional District, said he has done nothing wrong but doesn't want to be a distraction to candidates running in upcoming local elections.

"I regret having to resign and hope no one will misinterpret the reasons for my resignation," he said in a written statement. "I have done nothing wrong and I look forward to an investigation that will exonerate me of any wrongdoing.

Here is the response of Republican Party Chairman Eric Holcomb.

For background, start with this ILB entry from Oct. 16th.

Posted by Marcia Oddi on Tuesday, October 18, 2011
Posted to Indiana Government

Monday, October 17, 2011

Law - "From $25 to $10,000,000: A Guide to Political Donations"

Thanks to Rick Hasen of Election Law Blog for pointing to this interactive NYT Guide. The leadin:

After the emergence of Super PACs that followed recent court cases, political donors are nearly free to give as they choose, with their decisions guided mainly by how they want to direct their money. Here are a sample of donation goals and the options for achieving them.

Posted by Marcia Oddi on Monday, October 17, 2011
Posted to General Law Related

Ind. Courts - Still more on "Clarian Health sued over high charges: Patients claim bills for services insurance doesn't cover are unreasonable"

Updating this ILB entry from Oct. 13th on the COA opinion in Abby Allen and Walter Moore v. Clarian Health Partners, Inc (ILB summary here, 5th case), J.K. Wall of the IBJ has a story today headed "Judge slaps IU Health over billing."

Posted by Marcia Oddi on Monday, October 17, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 14, 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 October 14, 2011. It is three pages (and 31 cases) long.

Three transfers were granted last week:

Posted by Marcia Oddi on Monday, October 17, 2011
Posted to Indiana Transfer Lists

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

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Michael Hooten v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 17, 2011
Posted to Ind. App.Ct. Decisions

Environment - Don't read while eating ...

Steve Zabroski reports today in the NWI Times in a story that begins:

GARY | A plan to turn collected food waste into commercial mulch on land adjacent to Gary/Chicago International Airport is raising eyebrows among city and airport officials.

East Chicago-based Greentree Enterprises LLC has applied for a state permit to mix discarded food from restaurants and supermarkets with yard waste from local communities on a 29-acre site at 300 N. Clark Road.

The firm plans to then sell the resulting composted material to the public as a landscaping product, according to documents filed with the Indiana Department of Environmental Management.

Posted by Marcia Oddi on Monday, October 17, 2011
Posted to Environment

Ind. Gov't. - "IBM quotes Gov. Daniels' book in lawsuit against Indiana"

Carrie Ritchie reports this afternoon on the Indianapolis Star site:

IBM is using Mitch Daniels' new book as ammunition in a fight over whether the governor should testify in lawsuits over a canceled contract with the company. * * *

The state has said a law protects Daniels and other high-ranking state officials from testifying and that other employees can provide relevant information on the deal.

But IBM is now arguing that passages from Daniels' book, "Keeping the Republic," which was released last month, shows exactly why he should be forced to tell his side of the story.

In a 42-page brief filed in Marion Superior Court last week, IBM quotes portions of the book where Daniels discusses the contract and said he was the one who canceled it.

Daniels shouldn't be allowed to take "unsworn and unsupportable shots at IBM . . . and simultaneously (claim) immunity from cross examination on these and his many other statements," according to IBM's brief.

ILB: The story does not disclose which judge, information the ILB believes is essential in any "court story" if the public is to be able to make an informed decision on how well a particular judge has done over his/her term.

Fortunately, several earlier stories by the AP's Ken Kusmer fill in the blanks. See "More on: 'Judge: Daniels exempt from testifying now in IBM welfare contract lawsuit, but aide isn't'" from April 26th and "IBM: If Daniels can go on book tour, he can testify in lawsuit over Ind. welfare privatization" from Sept. 7th, both of which identify Judge David J. Dreyer.

The ILB would love to post the 42-page brief ...

Posted by Marcia Oddi on Monday, October 17, 2011
Posted to Indiana Government

Ind. Gov't. - Still more on: The new expungement (restricted access) law ...

Updating this ILB entry from Oct. 14th, which began: "The ILB has received some reader reaction to Article 39 ...", the ILB has now received this note from a Marion County lawyer:

And FYI, the judges cannot agree on a procedure for this new law, so all of them just have a stack of these in their offices. I went to criminal term last month and it was a circus side show.

Posted by Marcia Oddi on Monday, October 17, 2011
Posted to Indiana Courts | Indiana Government | Indiana Law

Courts - "Can a City Broadly Ban People From Soliciting Work, Business, or Contributions on Its Streets and Highways? A Ninth Circuit En Banc Majority Says No"

Julie Hilden, a Justia columnist, has posted this article today on an issue as relevant to Indianapolis as to the west coast. An en banc 9th Circuit panel held on Sept. 16th "that it was unconstitutional for the City of Redondo Beach to ban people from standing on its streets and highways soliciting employment, business, or contributions from drivers or their passengers."

Posted by Marcia Oddi on Monday, October 17, 2011
Posted to Courts in general

Courts - "Telegram for the Federal Circuit: Electronic Case Filing Is Now Available"

That is the heading to this entry by Andrew Dhuey at Patently-O Blog. The entry points out that:

[T]here is usually no easy way for them to obtain Federal Circuit briefs. The reason for that is the Court – charged by Congress to resolve the most important technology disputes in the world – still does not have electronic case filing (ECF).

In the federal judiciary, ECF is now operational in all appellate and district courts, save two: the Supreme Court and the Federal Circuit. Some Supreme Court justices are comically unfamiliar with such cutting-edge technologies as texting and email, though the Chief Justice probably does know more about pagers than the typical 20-something today. Fortunately, the technological backwardness of the Supreme Court's case filing system is of no consequence – you can get just about any petition or merits stage brief you might want from SCOTUSblog, the American Bar Association and other online sources.

At the Federal Circuit, however, odds are you have only three options when seeking a brief or motion: i) pay several hundred dollars for a messenger to go to the Court and copy it, ii) pay Westlaw or Lexis a similar amount to download it (if available) or iii) ask an attorney in the case for the favor of a PDF (tip: ask really nicely). [ILB: Note that the same problem exists with trying to obtain Indiana state court appellate briefs.]

The Court's long delay in implementing ECF is puzzling. In case after case, Federal Circuit judges and their law clerks demonstrate their ability to learn and analyze extremely complex technologies in widely disparate fields. Why then is the Court lagging behind every regional circuit court and all district courts in the nation when it comes to adopting technology in its own operations?

Posted by Marcia Oddi on Monday, October 17, 2011
Posted to Courts in general

Ind. Gov't. - "Costly microfilm requirement leaves clerk's office 'drowning in paper'"

Dorothy Schneider has the report today in the Lafayette Journal Courier. Some quotes:

"We're just drowning in paper," County Clerk Christa Coffey said.

County officials will soon be able to empty one such room, where order books from 2000 to the present are taking up space. Coffey's department will spend roughly $37,600 to have a South Bend company convert the paper images to microfilm -- the only other acceptable permanent storage medium that counties can use to then be allowed to destroy the original documents.

But microfilm conversion for most stored documents is an expensive and unnecessary requirement, Coffey said. The county already scans in documents and stores the images electronically. And those electronic records -- not the paper or microfilm ones -- are what's pulled for reference when needed in nearly every case, Coffey said.

"In my eight years with the clerk's office, I've never come down here and pulled a book," she said Thursday, gesturing to the stacks of records in one room dating to the 1950s.

The state clerk's association has been lobbying officials to change the microfilm requirement, at least for some records. But so far, no changes have been made.

Tom Jones, records manager with the Division of State Court Administration, said microfilm is the standard adhered to by most national and international agencies in cases for which items need to be permanently preserved.

"The problem with digital records is they need constant conversion as processes change," Jones said, adding that there also are concerns about the longevity of such storage mediums.

Posted by Marcia Oddi on Monday, October 17, 2011
Posted to Indiana Government

Law - U.S. v. Jones, the GPS tracking case, is scheduled for argument in early November

Here is the SCOTUSblog page collecting documents on the case, which is to be argued Nov. 8th. The issue:

Whether the Constitution allows police to put a tracking device on a car without either a warrant or the owner's permission; and whether the Constitution is violated when police use the tracking device to keep track of the car's whereabouts.
Here is a long list of earlier ILB entries on GPS tracking.

How Appealing today points to two new stories on this issue. From the Detroit Free Press, a long story by L.L. Brasier that begins:

Defense attorney Randall Lewis was representing a man charged in the fatal shooting of a Livonia police officer when he discovered something surprising: Livonia police had known his client's exact location at all times in the 11 days leading up to the shooting.

"I mean, it was like they knew what this guy was having for dinner," Lewis said.

Police knew Terry Bowling's whereabouts, Lewis learned, because they had surreptitiously planted a GPS tracking device under the back bumper of his Ford Taurus. Bowling has been a suspect in several home invasions.

"I was completely surprised since there was no mention of it in the police reports," Lewis said. "And my first thought was: 'Where's the warrant?' "

There was no warrant.

Bowling's case and hundreds like it are at the center of a growing legal storm set to land before the U.S. Supreme Court on Nov. 8. The issue: Can law enforcement agencies use GPS devices to track citizens without their knowledge?

The story concludes:
"There has to be judicial oversight," Lewis said. "We don't live in a police state, so look: Why not just get a warrant? That's all we're really talking about. When you knock out judicial oversight, you are moving away from democracy."
Sarah Peters has a long entry in The Hill's technology blog, Hillicon Valley that shows how the issue is bringing diverse groups together - it begins:
The American Civil Liberties Union, a Muslim-American group and gun-rights activists are urging the Supreme Court to rule against the government in a case involving law enforcement and privacy rights.

The high court will decide whether warrant-less GPS tracking by law enforcement is a violation of Fourth Amendment protections from unreasonable search and seizure. The U.S. vs. Jones case is scheduled for argument in early November.

The ACLU, Council on American-Islamic Relations and Gun Owners of America have all filed friend-of-the-court briefs in support of Jones in the case, along with other organizations.

Posted by Marcia Oddi on Monday, October 17, 2011
Posted to Courts in general

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

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

From Sunday, October 16, 2011:

From Saturday, October 15, 2011:

Posted by Marcia Oddi on Monday, October 17, 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 10/17/11):

Tuesday, October 18th

Wednesday, October 19th

Next week's oral arguments before the Supreme Court (week of 10/24/11):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 10/17/11):

Wednesday, October 19th

Next week's oral arguments before the Court of Appeals (week of 10/24/11):

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, October 17, 2011
Posted to Upcoming Oral Arguments

Sunday, October 16, 2011

Ind. Gov't. - "Ind. gambling exclusion list has 4,200 members"

An AP story today in the Fort Wayne Journal Gazette begins:

ANDERSON — Nearly 4,200 people have asked the Indiana Gaming Commission to bar them from entering casinos across Indiana.

The Herald-Bulletin reports 1,846 Indiana residents and 2,338 from other states have asked to participate in the Voluntary Exclusion Program, which allows people to be barred from casinos for periods ranging from a year to a lifetime.

The long Oct. 9th story in the Anderson Herald Bulletin, reported by Melanie D. Hayes, begins:
ANDERSON, Ind. — Gambling at Hoosier Park and other Indiana casinos is a source of entertainment for many. But for some, it is a problem, an addiction and a downhill spiral to the point that they request that casinos not allow them in.

In 2004, the Indiana Gaming Commission created the Voluntary Exclusion Program where people could choose to be prevented from entering casinos across the state. People have to sign up on their own accord and can choose to be on the list for one or five years, or for their lifetime.

Madison County has the third highest number of participants in the state with 129 members.

In Indiana there are 1,846 active members and the counties with the highest memberships are Lake County with 471 and Marion County with 202. And although the program only deals with Indiana casinos, residents from other states can sign up too, which brings the total number of active members to 4,184.

Posted by Marcia Oddi on Sunday, October 16, 2011
Posted to Indiana Government

Ind. Courts - "Indiana's first African American federal judge 'had the great fortune to have great mentors'"

Grace Schneider has this feature story today in the Louisville Courier Journal. Some quotes:

Tanya Walton Pratt acknowledges she was in the right place at the right time to make history by becoming the first African American federal judge in Indiana. * * *

She told a group of about 150 lawyers, local judges and civic leaders at a Jeffersonville luncheon Friday that she understands the historical significance of her opportunity, particularly in light of Indiana’s shameful legacy of racial discrimination. * * *

Her speech marked the conclusion of a three-day conference called “A Progressive Journey Through Indiana History: A Glimpse Into Indiana’s History from an African American Viewpoint.” It featured scholars, historians and other experts who discussed the heritage of African Americans in the region.

Pratt, an Indianapolis native, traced Indiana’s court rulings and statutes from pre-Civil War days, when newly free slaves moving into the state were forced to post a bond of $500 to $1,000 to guarantee that they would have “good behavior.”

Numerous laws through the decades restricted immigration to Indiana by Negroes and mulattoes, and court rulings ensured segregated schools and housing and prohibited interracial marriage, she said.

“You can look (the citations) up” in Westlaw, she told the assembled lawyers, referring to the online legal-research service. “This is our history.”

Posted by Marcia Oddi on Sunday, October 16, 2011
Posted to Indiana Courts

Law - "When Should Federal Law Allow Domain Seizures?"

Orin Kerr had this post Oct. 14th in The Volokh Conspiracy. Read in conjunction with the July 25th ILB entry headed "Online Poker Business: A 'Busted Flush'? Business Is Still Good Despite Recent Ban On American Customers."

Posted by Marcia Oddi on Sunday, October 16, 2011
Posted to General Law Related

Ind. Gov't. - More on "Hoosier Lottery director resigns"

Updating this ILB entry from Oct. 14th, the Oct. 15th Indianapolis Star has an expanded story on the resignation.

Posted by Marcia Oddi on Sunday, October 16, 2011
Posted to Indiana Government

Law - Here is a website that tracks law firm mergers and acquisition

Take a look. The intro:

Welcome to Altman Weil MergerLine™, tracking law firm mergers and acquisitions as they are reported by the press. MergerLine compiles news of mergers and acquisitions of all sizes. Our focus is U.S. firms, but we will report on significant combinations wherever they occur. Lawyer headcounts are derived from published league tables, directories and law firm websites.

Posted by Marcia Oddi on Sunday, October 16, 2011
Posted to General Law Related

Ind. Gov't. - Continuing with "2008 Clinton, Obama Indiana primary petitions tainted by forged signatures"

The South Bend Tribune has created a "special reports" page to provide access to all its stories on the 2008 fake ballot petition signatures story. Today's story, by Kevin Allen and Erin Blasko, is headed "Vote worker tied to fake petitions: Mishawaka man denies any inolvement." The story begins:

SOUTH BEND -- A Mishawaka man has been linked to some of the pages filled with fake signatures submitted as part of Barack Obama's petition to be on the 2008 Indiana primary ballot.

A forensic document analyst hired by The Tribune and Howey Politics Indiana identified Dustin Blythe, 37, by matching the handwriting on his voter registration card and two political petitions with that on nine suspicious pages from the Obama petition.

The analyst, Erich Speckin, concluded that all of the printing on the nine pages definitely is Blythe's, and the signatures likely are his, as well.

"That's speaking only forensically," Speckin said. "That doesn't even address the common sense that if he is definitely the one who printed all of the other information and he is most likely the one who signed them, he is that much more likely to be the guy. It's just common sense."

It is legal on political petitions for anyone to write the printed name, birth date and address of a person, but only the person named is allowed to sign the document.

Blythe isn't the only person whose handwriting reoccurs on the suspicious petition pages. Speckin said it appears Blythe and three other people filled more than 20 pages of the Obama petition.

Also, a source who claims direct knowledge of the petition faking told The Tribune there were seven people, including Blythe, involved in the effort. That source's comments were made before Speckin made his analysis, and Speckin arrived at his conclusion without knowledge of the source's comments.

Posted by Marcia Oddi on Sunday, October 16, 2011
Posted to Indiana Government

Ind. Courts - Delaware Circuit Court 2 Judge Richard Dailey retired Friday

Here is the long story from yesterday's Muncie Star Press, reported by Douglas Walker. Some quotes:

MUNCIE -- After more than three decades on the bench, Delaware Circuit Court 2 Judge Richard Dailey retired Friday.

"This 35 years has been a great ride," Dailey, 69, told a group of friends, family members, court staffers, attorneys and fellow judges gathered in his courtroom Friday afternoon. "It's been a pleasure to serve you. ... We will always keep you in our minds and our hearts."

The Democrat, a Fort Wayne native, was first elected to the Delaware County Court 2 bench in 1976. Six years later, he won the first of five six-year terms as judge of Superior Court 2, which later became Circuit Court 2.

Dailey was the longest serving elected official in Delaware County, and Circuit Court 3 Judge Linda Ralu Wolf, who presided over Friday's farewell ceremony, said his stint on the bench represented one of the longest ever for an Indiana judge. * * *

Wolf read a message from Gov. Mitch Daniels that officially made Dailey a "Distinguished Hoosier."

Daniels has not yet appointed an attorney to serve the remainder of Dailey's term, which runs through December 2012.

The ILB has a very long list of entries mentioning Judge Richard Dailey.

Posted by Marcia Oddi on Sunday, October 16, 2011
Posted to Indiana Courts

Saturday, October 15, 2011

Law - More on: It is now officially Faegre Baker Daniels, as of 1/1/12 [Updated]

Updating this ILB entry from Oct. 12th, Faber-E Fager-E is apparently the proper pronunciation of the firm merging with Baker & Daniels, if WFYI was correct this morning. This is not one of the several guesses I'd heard ...

[Update] A reader who has listened to a video of the announcement says it is pronounced Fay-gree. Listen for yourself. I may have a bad ear, but I still hear Fager-E.

Posted by Marcia Oddi on Saturday, October 15, 2011
Posted to Indiana Law

Friday, October 14, 2011

Ind. Gov't. - "Hoosier Lottery director resigns"

Jon Murray has just posted the announcement on the IndyStar site. From the news release issued by the Gov.'s office:

The Department of Administration is continuing its review of the lottery’s compliance with state standards for space use and furniture and equipment purchases.
See this Oct. 10th ILB entry that raises questions about what these standards are; whether such "standards" apply to this quasi-public entity; and if so, are they being applied to other similar legal entities.

Posted by Marcia Oddi on Friday, October 14, 2011
Posted to Indiana Government

Ind. Gov't. - More on: The new expungement (restricted access) law ...

The ILB has received some reader reaction to "Article 39," posted here earlier this afternoon, relating to the Court's direction that the "proceeding to restrict access under I.C. 35-38-8 is a civil proceeding for which an MI case type should be assigned and the regular civil filing fee assessed." The imposition of a filing fee apparently comes as a surprise:

Talk about deterrence in limiting filings. I believe many criminal defense lawyers have been filing these under the criminal case.

I'm not sure how a Marion County Cirminal Court can even collect a filing fee. Their clerks do not accept money for any other sort of filing.

Posted by Marcia Oddi on Friday, October 14, 2011
Posted to Indiana Government

Law - "A Picture of How the Student Loan Industry Took Advantage of You"

See the great infographic at Above the Law by Elie Mystal.

Posted by Marcia Oddi on Friday, October 14, 2011
Posted to General Law Related

Ind. Courts - Court of Appeals names DeAgostino as communications director

From the news release:

INDIANAPOLIS – The Court of Appeals of Indiana has contracted Martin DeAgostino as Communications Director for the Court.

DeAgostino will coordinate the court’s traveling oral argument program, manage media and public relations for the court, maintain the court’s website and education initiatives, and build public awareness of the court’s essential role in Indiana government.

“The Court of Appeals is very pleased to welcome Martin to our team,” Court Administrator Steven F. Lancaster said. “He brings extensive experience to the position that the Court will rely on to shape its communications strategies.”

DeAgostino formerly worked as communications director at AARP Indiana and as Statehouse reporter for the South Bend Tribune.

Posted by Marcia Oddi on Friday, October 14, 2011
Posted to Indiana Courts

Ind. Gov't. - The new expungement (restricted access) law ...

Yesterday and again this morning the ILB posted about the meeting of a legislative interim committee looking at the expungement law passed last year, HEA 1211, now codified at IC 35-38-8 as Restricted Access to Conviction Records. Yesterday I wrote:

There was some testimony that the Supreme Court had issued rules on interpreting the expungement law and even had a webpage on this, including forms. I've never heard of this and can't find it on the Court's site.
Later:
Okay, here may be the sample forms referenced at the Commission meeting today. They are located on the Indiana Courts civil forms page:
  • Verified Petition Under IC 35-38-8 to Restrict Access to Criminal History Records - here

  • Verified Petition Under IC 35-38-8 to Restrict Access to Criminal History - Supplemental Form for Additional Criminal Records - here
Late this morning I received a timely note from Kathryn Dolan, Indiana Supreme Court Public Information Officer:
The Division of State Court Administration has received questions from trial court judges and clerks who have concerns about the logistics of restricting access to public records. The Division is working on providing guidance to these court officials. Our goal is to give judges and clerks meaningful direction on how to make daily court operations run smoothly while following the law.

We have added a chapter that deals with the new law to our Administrative Manual that is posted on our website. Additionally, we have developed a form petition for relief under IC 35-38-8 that could be used by a self represented litigant and also posted it on our website. The Division Director of trial court management spoke about the new law at both the Northern District and Southern District Clerks Associations conferences last month.

Some quotes from the new 3-page guidance, which is being referenced as "Chapter 39", and is dated 8/29/11:
Although the petition is to be filed in the sentencing court, the Division advises that proceeding to restrict access under I.C. 35-38-8 is a civil proceeding for which an MI case type should be assigned and the regular civil filing fee assessed. If the person seeks to restrict access to multiple convictions, they may be included in one petition, provided that the convictions were all in the same court. Although the statute is silent as to whom, if anyone, should be served with the Petition, the Division advises that the Indiana State Police Department should be served because it is specifically referred to in I.C. 35-38-8-3 and that department is the official state repository for criminal history information. * * *

If the court grants the person’s petition, it must order the department of correction and each law enforcement agency or other person who incarcerated, provided treatment for, or provided other services to the person to prohibit the release of the person’s records or information related to the misdemeanor or nonviolent Class D felony in the person’s records to a noncriminal justice agency without a court order. Additionally, the court must order any state, regional, or local central repository for criminal history information to prohibit the release of the same information to a noncriminal justice agency without a court order.

Finally, if the court orders the person’s records restricted under the law, I.C. 35-38-8-7 provides that the person may legally state on an application for employment or any other document that he has not been arrested for or convicted of the felony or misdemeanor recorded in the restricted records.

Although neither I.C. 35-38-5-5.5 nor I.C. 35-38-8 expressly requires the court to restrict access to the court’s records to noncriminal justice agencies or persons, failure to do so would largely frustrate the purposes of the statutes. * * *

Because IC 35-38-8 includes a wide range of potential persons or entities who must be ordered not to disclose the information, the Division recommends that the court advise the petitioner that it is the petitioner’s responsibility to inform the court of all persons or entities who possess the information and only those persons or entities identified by the petitioner will be included in the court’s order restricting access. * * *

It is important to remember that an order restricting access is not the same as an expungement, and this is true whether the order is entered under I.C.35-38-5-5.5 or under I.C. 35-38-8-5. The records should still be available to the parties, their attorneys and to criminal justice agencies, but access to the records by noncriminal justice agencies is prohibited without a court order.

Posted by Marcia Oddi on Friday, October 14, 2011
Posted to Indiana Courts | Indiana Government | Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Cedric Tharpe v. State of Indiana , a 16-page opinion, Judge May concludes:

Tharpe did not show the judge who presided over his case was biased or prejudiced. Nor did he demonstrate his trial was unfair. The trial court did not abuse its discretion when it denied his motion for continuance, and the evidence is sufficient to support his conviction. Accordingly, we affirm.
NFP civil opinions today (4):

In the Matter of the Term. of the Parent-Child Rel. of: D.Y., and D.H. v. The Indiana Dept. of Child Svcs. and Child Advocates, Inc. (NFP)

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

Eugene M. Gray Trust, A-1 Vacuum, Northwest Optical, and Marion County, Indiana v. State of Indiana (NFP)

Brian Loveall v. Susan (Loveall) Kelly (NFP)

NFP criminal opinions today (5):

Nathan Allyn Richardson v. State of Indiana (NFP)

Amber Easton v. State of Indiana (NFP)

Matthew Spoonemoore v. State of Indiana (NFP)

T.C. v. State of Indiana (NFP)

Gordon Northrup, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 14, 2011
Posted to Ind. App.Ct. Decisions

Ind. Law - Vaughn R. Walker, former chief judge for the ND California, to speak at Mauer Law

This ILB has received this info:

"ON THE BENCH AND IN THE GAME"

Vaughn R. Walker, former chief judge of the
United States District Court for the Northern District of California

3 p.m. Thursday, Nov. 3, Maurer School of Law, 211 S. Indiana Ave.
Free and open to the public

As a federal judge for 21 years, Vaughn Walker decided high-profile cases in civil liberties, national security, and many other areas. In August 2010 he struck down California's Proposition 8, setting in motion a constitutional debate on same-sex marriage that may ultimately be resolved by the US Supreme Court. He was the first known gay person to serve as a federal judge.

The lecture will be followed by commentary from professors Charles Geyh of the Maurer School of Law and Judith Failer of the Department of Political Science. The program will be moderated by Steve Sanders of University of Michigan Law School.

Co-sponsors to date include the College of Arts & Sciences, the Office of Affirmative Action, the IU GLBT Alumni Association, and OUTlaw.
ILB: Judge Walker is also at the center of the continuing dispute over whether videocasts of the long-concluded trial may be made available to the public. See this August 29th LA Times editorial headed "Throw open the Prop. 8 video records."

Posted by Marcia Oddi on Friday, October 14, 2011
Posted to Indiana Law

Ind. Gov't. - Still more on "2008 Clinton, Obama Indiana primary petitions tainted by forged signatures"

Updating this ILB entry from Oct. 12, Erin Blasko of the South Bend Tribune continues the story in this report today, which is headlined "Fake signatures may mean Obama didn't actually qualify in Indiana: Would '08 May ballot have been different?"

Posted by Marcia Oddi on Friday, October 14, 2011
Posted to Indiana Government

Ind. Gov't. - "Linda Belork’s Lawsuit Moved to Jasper County"

K99.3 WKVI FM reported yesterday in a brief story:

A change of venue has been granted by Starke Circuit Court Judge Kim Hall in the lawsuit filed by former Starke County Treasurer Linda Belork. The suit was brought about after Belork’s August 11th dismissal of her duties as treasurer of the county. Belork was relieved of her duties by the County Commissioners after a state audit reported financial discrepancies. According to a later commissioner’s report, some of the discrepancies have been cleared up by the Auditor’s office.
Here is a long list of earlier ILB entries, the most recent, from Sept. 14th, is headed "More details of state’s audit of Starke County treasurer released."

Posted by Marcia Oddi on Friday, October 14, 2011
Posted to Indiana Government

Ind. Gov't. - More on yesterday's meeting of the Criminal Law and Sentencing Policy Study Committee meeting

Updating this ILB entry from yesterday, Niki Kelly of the Fort Wayne Journal Gazette has good coverage of the meeting. Some quotes:

Legislators are taking a second look at a law passed this year to give Hoosiers with non-violent criminal pasts a second chance.

The General Assembly in April approved House Bill 1211 after a complete rewrite was done in the waning days of the session.

Because of the late changes, there have been problems implementing the law. The Indiana Supreme Court even had to step in with guidance for Hoosiers trying to navigate the legislation.

The purpose of a newly drafted bill being considered by the Criminal Law and Sentencing Policy Study Committee is to incorporate the Supreme Court’s order and make necessary logistical changes. [ILB: If there is a Supreme Court order in addition to the 2 forms linked yesterday, the ILB can't locate it.]

The story lists the highlights of the new expungement law, then continues:
The bill does not, however, affect records in the public domain – for example, newspaper articles, blogs, television reports or other places that contain information on the court records.

Many of the changes being considered made the two sections of the statute consistent, including what to include in a petition and giving a prosecutor notice of the filing.

The draft also made the petition to close records confidential from the public.

Steve Key, lobbyist for the Hoosier State Press Association, argued the petition should become confidential only after an order by a judge is issued. Until then, the conviction is still public record and citizens should be able to dispute the petition.

Sen. Brent Steele, R-Bedford, chairman of the committee, agreed on that change.

But during discussion of the bill it was clear some legislators are uneasy with some parts of the current law.

Sen. Richard Bray, R-Martinsville, pointed out that felons could be admitted as lawyers in the state because they would not have to disclose prior crimes that are sealed. And David Powell, the new executive director of the Indiana Prosecuting Attorneys Council, said he thinks schools should still be allowed access to these records when running criminal background checks on prospective employees.

Steele said the intent of the revision is to make the new law workable – not make substantive changes.

“That was a public policy decision,” he said. “We already chewed that cabbage.”

Key also pointed out that the bill doesn’t quite work in the digital world, noting that some businesses specialize in doing criminal background checks for private employers and have data already on file that would not be scrubbed of the information.

Many of these issues have been raised in earlier ILB entries. For background, start with this entry from July 4, 2011.

Posted by Marcia Oddi on Friday, October 14, 2011
Posted to Indiana Government

Thursday, October 13, 2011

Ind. Gov't. - Still more on: Charlie White, private citizen, files criminal complaint with prosecutor

Updating this ILB entry from Oct. 12th, the Indianapolis Star has an editorial today titled "Another baffling twist in White saga." Some samples:

It is embarrassing enough to have the state's top elections officer facing felony charges of vote fraud. When he mounts a defense of "They did it, too," he leaves the Hoosier public wondering whether to laugh or cry. * * *

White wants to demonstrate he's the victim of selective prosecution, says his attorney, Carl Brizzi, who was the Marion County prosecutor until completing his term last year -- and who left office in a hailstorm of conflict-of-interest controversy.

Brizzi and White are Republicans. Evan Bayh and current prosecutor Terry Curry are Democrats. Likewise a Democrat is Daniel Sigler, half of a bipartisan pair of special prosecutors who built the criminal case against White. White accused him -- and his wife and ex-wife -- of vote fraud as well a while back, and saw the complaint thrown out by the Allen County prosecutor. * * *

Whatever the chances might be that his countercharge will stick this time around, White has demeaned his office with a self-serving act of desperation. His tattered credibility is the stuff of jokes; and it hurts to laugh.

Posted by Marcia Oddi on Thursday, October 13, 2011
Posted to General Law Related

Environment - "Biomass plans withdrawn for Milltown, Scottsburg"

Updating earlier ILB entries on biomass plants, Grace Schneider reports in the Louisville Courier Journal today in a long story that begins:

A company that set out three years ago to build wood-burning biomass power plants in Scottsburg and Milltown has notified Indiana environmental regulators that it intends to drop its plans.

Liberty Green Renewables LLC, a company formed by two Harrison County businessmen with partners in Houston, asked the Indiana Department of Environmental Management this month to revoke two state-issued emissions permits, effectively pulling the projects off the table. * * *

“It’s been a long journey. ... It took so much work by so many people,” said CaraBeth Jones, who led the Concerned Citizens of Crawford County, a group that feared potential air and water pollution as well as truck traffic if the plants were built.

Posted by Marcia Oddi on Thursday, October 13, 2011
Posted to Environment

Ind. Gov't. - Criminal Law and Sentencing Policy Committee meeting today [Updated]

Agenda items include:

(1) Discussion of expungement draft.
(2) Report from research group concerning data presented to the Criminal
Code Evaluation Commission.
(3) Discussion of court information needed by the Department of Correction.
You can watch right now, it began at 1 pm. Interesting discussion on expungement. Meetings are also archived.

There was some testimony that the Supreme Court had issued rules on interpreting the expungement law and even had a webpage on this, including forms. I've never heard of this and can't find it on the Court's site...

[Updated at 7:52 PM] Okay, here may be the sample forms referenced at the Commission meeting today. They are located on the Indiana Courts civil forms page:

Posted by Marcia Oddi on Thursday, October 13, 2011
Posted to Indiana Government

Stage collapse - "State Fair to move stage wreckage as collapse costs mount"

Carrie Ritchie of the IndyStar has a story from this morning's meeting of the Indiana State Fair Commission. From the story:

A victim relief fund has about $900,000, says Justin Armstrong, who oversees the fund. Seventeen claims from victims of the collapse have been processed. Six of those claims were from the estates of people who died.

More than 50 victims have filed tort claim notices with the state. Indiana law caps the state's liability at a total of $5 million, but a lawsuit has been filed to fight the limit and some state lawmakers say they are willing to raise the cap.

From Indy 6News:
A relief fund has processed 17 claims so far, including claims involving six people who died, for a total of $278,000. Two claims are under review, and one person has requested a meeting with Kenneth Feinberg, who is administrating the fund.

Posted by Marcia Oddi on Thursday, October 13, 2011
Posted to Stage Collapse

Ind. Decisions - Court of Appeals issues 4 today (and 11 NFP)

For publication opinions today (4):

In Holiday Hospitality Franchising Inc. v. AMCO Insurance Company , a 17-page opinion, Chief Judge Robb writes:

Holiday Hospitality Franchising, Inc. (“Holiday Hospitality”) appeals the trial court's grant of Amco Insurance Company's (“AMCO”) motion for summary judgment. Holiday Hospitality raises two issues for our review, which we restate as whether an “occurrence” took place for the purposes of the insureds' insurance policy, and whether a hotel guest is “in the care, custody or control” of the hotel. Concluding the alleged negligent acts give rise to an “occurrence” under these circumstances and a genuine question of material fact remains regarding whether R.M.H. was in the hotel's “care, custody or control,” we reverse and remand for further proceedings.
Jeffrey D. Lacher, et al. v. Review Board of the Indiana Dept. of Workforce Development and Bemis Co., Inc., a 10-page opinion, contains an interesting footnote aside on p. 7 re procedural due process and an order of remand. re Issue II, Judge Kirsch writes:
The Employees argue that the evidence supports a finding that they were locked out upon Cronin’s threat of a strike, where Bemis knew Cronin had no such authority. * * *

An employee is ineligible for unemployment compensation benefits for unemployment due to a stoppage of work that exists because of a labor dispute. Ind. Code § 22-4-15-3(a). Not every controversy concerning the terms and conditions of employment, however, constitutes a labor dispute under the Act. * * *

[However] The case before us is quite different and our standard of review compels us to affirm the decision of the Review Board. * * * The evidence here does not support an inference that the Employees were locked out. The record before us does support the conclusion that an impasse had been reached on the issue of the temporary employee clause. We conclude that the evidence supports the findings of fact and the findings, in turn, support the conclusions thereon.

George Michael True v. State of Indiana "The trial court erroneously instructed the jury that it could convict True of Class A misdemeanor domestic battery as a lesser included offense of Class D felony domestic battery. We reverse his conviction and remand for further proceedings consistent with this opinion." See ftnte 4 re double jeopardy.

LeChann Davis v. State of Indiana - "Defendant LeChann Davis appeals her conviction for Class C felony Child Molesting. Specifically, Davis contends that the trial court abused its discretion in admitting certain testimony at trial and that the evidence is insufficient to support her conviction. We affirm."

NFP civil opinions today (6):

William Anderson v. Alicia Jones (NFP)

In Re: The Marriage of William Scott Mitchell v. Crystal Hope Bailey (NFP)

Associated Estates Realty Corporation v. Angela Mason (NFP)

In Re: The Paternity of K.K.A. v. D.J.K. (NFP)

Metro Health Professionals Inc. v. Carmel Chrysler Jeep Dodge, Inc., d/b/a Champion Chrysler Jeep Dodge (NFP)

Cindi M. Hrovat v. Thomas W. Kirchner (NFP)

NFP criminal opinions today (5):

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

Stacy A. Jenkins v. State of Indiana (NFP)

Jamar Alston v. State of Indiana (NFP)

Philip Walker, Sr. v. State of Indiana (NFP)

Bruce A. White, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 13, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "Clarian Health sued over high charges: Patients claim bills for services insurance doesn't cover are unreasonable"

The ILB posted August 2nd on an upcoming oral argument on hospital charges for uninsured patients. The argument took place before the Court of Appeals on August 3rd; you can watch the video here.

For background see this May 8, 2010 ILB entry. Here is a quote from an IndyStar story referenced in the entry:

Allen is one of two plaintiffs in a lawsuit filed this week in Marion Superior Court claiming that Clarian Health charges uninsured patients -- or those receiving treatments not covered by their insurance -- unreasonably high prices. The Indianapolis-based hospital system, according to the suit, gives those patients no ability to negotiate different prices. * * *

The lawsuit, however, has broader implications because it targets a controversial practice used to set hospital prices across the nation. Hospitals typically start with a set price, called the "charge master." Health insurers then negotiate discounts off that rate. The discounts can be substantial depending on the volume of patients an insurer brings to a particular hospital.

Yesterday the Court of Appeals issued its opinion in the case, Abby Allen and Walter Moore v. Clarian Health Partners, Inc (ILB summary here, 5th case), concluding:
More than a century of legal precedent, including recent Indiana Supreme Court authority, provides the proper legal framework for our conclusion that Allen and Moore have stated a claim for breach of contract upon which relief can be granted. The trial court's decision is reversed and this cause is remanded for further proceedings.
Dan Carden of the NWI Times writes about the ruling today, in a story headed "Medical bills must be reasonable."
A contract between a patient and hospital that does not include or refer specifically to the price for services the patient is expected to pay is unenforceable, the Indiana Court of Appeals ruled Wednesday.

In a 3-0 decision, the court said the "charge master" or undiscounted rates of Clarian Health Partners Inc. in Carmel were not disclosed prior to two uninsured patients signing contacts agreeing to pay for medical services.

Under Indiana contract law, when there is not a specific price for services or a relevant price list included in a contract, the customer is entitled to a "reasonable charge," the court said.

The hospital's charge master rates, more than double what an insured patient would be charged, are unreasonable and therefore a breach of the contract, the court said.

Clarian claimed courts are in no position to determine what is a reasonable rate in the field of pricing medical services.

That argument fell flat.

"It has long been the judiciary's function to determine a reasonable charge when a contract lacks a definite provision for payment," wrote Judge Edward Najam Jr., for the unanimous court. "We have found no Indiana authority supporting the proposition that medical expenses or billing are or should be exempt."

Masson's Blog has a good post on the ruling.

Posted by Marcia Oddi on Thursday, October 13, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Update on proposed sentencing revisions

The Indiana Economic Digest on Oct. 12 reprinted a story from the Wabash Plain Dealer on the status of the "state-appointed panel [that] is trying to decide whether inmates convicted of Class D felonies should remain in the Indiana Department of Correction or be sent to county jails in Indiana." The story quotes from the minutes of the Oct. 4th meeting of the Criminal Code Evaluation Commission, which led me to take a look at the Commission's webpage.

There is a wealth of information on the site, included the archived webcasts of the past five meetings and the minutes of the past six meetings. The seventh meeting of the Criminal Code Evaluation Commission will be held on October 19, 2011.

Here are some interesting quotes from the Oct. 4th meeting minutes:

Andrew Hedges, Senior Staff Attorney with Legislative Services Agency, told the Commission members that the purpose of this effort is to move all definitions of crimes used in IC 35 to a newly created IC 35-31.5-2. He noted all definitions in the criminal code are not in IC 35-41-1.

As proposed, all definitions will be included in this new article and chapter. Mr. Hedges indicated that the current draft is almost 100 pages. He noted that the new format for bill drafts is to include in the repealed sections the entire text of each section with a strikeout through the text.

Well that is a significant change in bill drafting technique; don't know if it is good or bad! More:
He noted that many of the criminal penalties for violating sections in Titles 4 and 5 are difficult to find. Consequently, the Commission members considered grouping all of these references in one section of Title 35 for easier reference.

Exhibit A shows these references. Mr. Hedges noted that none of these criminal provisions were moved to Title 35 since they are all generally a part of the scheme that deals with regulatory statutes. As an example, Mr. Hedges cited IC 4-4-27, which governs the inspection of grain moisture testing equipment. The criminal provisions are in the final section of this chapter.

ILB: Moving sections around does not seem to be getting at the problem. Additionally, taking the penalties out of the specific laws and moving them to another title will only make it harder for the user to tie them together without access to an annotated (i.e. West or Burns) version of the statutes.

At the bottom of p. 2 begins the discussion of a significant issue, the validity of the offender data, a "new issue" raised a few months ago. It is worth a read and begins:

Representative Foley told the Commission members that concerns had been raised about offender data used during the prior legislative session to estimate the effect that sentencing changes would have on future prison populations. Consequently, a Data Analysis Working Group was formed to ensure that decision makers have valid and reliable information on population produced from sound methodology.
Also of significant import is this:
Research Group: Deborah Daniels presented to the Commission members two tables (see Exhibit C). One table shows the current scheme for sex crimes by felony level. The other table shows an alternative scheme based on proportional penalties that could be applied based on the severity of the crime. Under current law, sex crimes can be one of four felonies with sometimes wide ranges of incarceration between felony levels. In the alternative scheme, the sex crimes are divided into six different levels with presumably narrower ranges of incarceration. Ms. Daniels told the Commission members that the Research Group did not assign specific terms of incarceration for each level.
Exhibit C is included in the last 2 pages of the minutes.

Posted by Marcia Oddi on Thursday, October 13, 2011
Posted to Indiana Government

Wednesday, October 12, 2011

Ind. Gov't. - More on "2008 Clinton, Obama Indiana primary petitions tainted by forged signatures"

Updating this ILB entry from Sunday, Erin Blasko of the South Bend Tribune continues the story in this report today. Some quotes from the long story:

SOUTH BEND - Suspected fake petition pages to place Democrats Barack Obama and Hillary Clinton on the ballot during the 2008 Indiana primary passed through the county voter registration office on days when the Republican head of the office was absent, The Tribune has learned.

The pages in question bear the stamped signature of Republican Linda Silcott, indicating Silcott was not in the office at the time to sign the documents by hand. By comparison, most of the other, non-suspicious pages examined by The Tribune contain Silcott's written signature.

Meanwhile, 13 more St. Joseph County residents whose signatures appear on the petitions, including former South Bend mayor and Indiana governor Joe Kernan, have come forward to say they did not sign the documents, and the Indiana Republican Party has called for a federal investigation into the matter.

"How deep does this problem go?" state GOP Chair Eric Holcomb asked. "Is it isolated to St. Joseph County or was it a broader, coordinated effort across the state? ... Who forged the signatures and why?" * * *

In response to the ongoing joint investigation by The Tribune and Howey Politics, county Prosecutor Michael Dvorak has launched his own investigation into the faked signatures.

That said, identifying the person or persons responsible for the fakery is a difficult task. Dozens, if not hundreds, of volunteers carried petitions on behalf of now Secretary of State Clinton and President Obama in the county in 2008, both independently and as part of each candidate’s official campaign.

In addition, receipts that would have identified the people involved in gathering signatures on behalf of the two candidates no longer exist. Voter Registration is required to keep records for only 24 months.

The Office of the Secretary of State did not respond Tuesday to a request for comment on this story. Earlier requests by phone and e-mail also went unanswered.

Posted by Marcia Oddi on Wednesday, October 12, 2011
Posted to Indiana Government

Law - Lawyers, be afraid, be very very afraid

Remember the ILB entry from Sept. 19th, headed "Not law - Sportswriters (and more), be afraid, be very very afraid"? Well, it has come to pass ...

From the WSJ on Oct. 10th, a story headed "At GE, Robo-Lawyers."

The same day, the WSJ Law Blog had an entry headed "Legal Sector Loses Jobs In September, Robots On The Horizon."

On March 5th the ILB featured a NYT John Markhoff story headed "Armies of Expensive Lawyers, Replaced by Cheaper Software." And see also this March 7th article from Constitutional Daily, headed "The Lawbot Revolution is Coming ."

Posted by Marcia Oddi on Wednesday, October 12, 2011
Posted to General Law Related

Ind. Gov't. - More on: Charlie White, private citizen, files criminal complaint with prosecutor

Supplementing yesterday's ILB entry, Niki Kelly of the Fort Wayne Journal Gazette reported late this morning in a story headed "White puts Bayh in the crosshairs" that begins:

Embattled Secretary of State Charlie White on Tuesday sent a complaint to the Marion County Prosecutor accusing former U.S. Sen. Evan Bayh of voter fraud.

It is the same criminal charge White is facing for voting from his ex-wife's address in the 2010 primary election rather than a condo he purchased. A grand jury indicted White on seven felony counts. If convicted, he must resign from his office.

The Indiana Democratic Party also has pushed a civil petition to have White removed from office, alleging he was not properly registered to vote in 2010 - making him ineligible to be a candidate for a state post.

A longish story by Indianapolis Star reporter Carrie Ritchie, also posted this morning, ends on a Fort Wayne note:
This isn't the first time White has accused others of voter fraud. He filed a similar criminal complaint against Dan Sigler, a Northern Indiana attorney who's serving as a special prosecutor on White's criminal case. The Allen County prosecutor's office threw out that complaint.

Posted by Marcia Oddi on Wednesday, October 12, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 7 today (and 9 NFP)

For publication opinions today (7):

In Todd A. Anderson v. Shauna Anderson, a 1-page opinion, Judge Friedlander writes:

Todd A. Anderson (Father) appeals the trial court’s denial of his request to credit against his child support obligation Social Security benefits Shauna Anderson (Mother) received on behalf of their child, D.A., prior to Father’s petition to modify child support. Father presents that ruling as the sole issue on appeal. We reverse. * * *

[W]e conclude there is no principled reason to treat periodic SSD benefit payments to a child differently than lump-sum SSD benefit payments, i.e., it “shall be applied as a credit to an existing child support arrearage” without the need to file a petition for modification.

In Jonathon D. Douglas v. State of Indiana and Indiana Family & Social Services Admin., as Assignee of the Support Rights of Mechelle (Allen) McCrory, a 15-page opinion, Judge Mathias writes:
Jonathon D. Douglas (“Douglas”) appeals from the trial court's denial of his petition to modify his child support obligation and raises one issue, which we restate as whether the trial court erred in concluding that Douglas was not entitled to a reduction of his child support obligation because the reduction in his income upon which he based his petition for modification resulted from his incarceration for Class C felony nonsupport of a dependent. We reverse and remand for proceedings consistent with this opinion. * * *

Finally, when all is said and done, it is the province of our supreme court to consider exceptions to its general, administrative rules governing child support. We therefore decline to create an exception to the rules set forth in Lambert and Clark and hold that the trial court erred when it concluded that incarceration for nonsupport of a dependent child cannot amount to a change in circumstances so substantial and continuing as to make the terms of an existing child support order unreasonable.

In In the Matter of the Involuntary Commitment of A.M., an 8-page opinion by Judge Baily, the panel upholds the involuntary commitment:
She raises one issue for our review: whether sufficient evidence supports the involuntary commitment order. Finding sufficient evidence in the record, we affirm.
However, a long footnote which consumes much of p. 4 makes this point:
Even though Vanderburgh County Local Rule 82-AR00-1.02 (“Case Allocation Plan”) assigns mental health cases to Division VI (“Criminal, Small Claims and Misdemeanor/Traffic”), this assignment in and of itself does not afford magistrates the power to sign final orders of involuntary commitment. Therefore, we must conclude that the order of regular commitment is defective because it lacks a judge's signature.

This defect notwithstanding, A.M. has waived any claim to reversible error because she did not raise it at the hearing or on appeal.

In Paul Fonner v. State of Indiana , an 11-page opinion, Judge Bailey writes:
Paul Fonner (“Fonner”) appeals his convictions for Theft, as a Class D felony, and Criminal Trespass, as a Class A misdemeanor, raising for our review whether the trial court failed to advise him of his right to testify on his own behalf and thereby denied him fundamental due process as a pro se criminal defendant, and whether there was sufficient evidence to support his conviction. We affirm. * * *

While failure to issue an advisement of a defendant’s right to testify on his own behalf is of a fundamental nature, our supreme court’s development of our standard for review of fundamental errors does not require reversal in each case. Thus, Fonner has failed to adequately demonstrate how he was prejudiced by the absence of an advisement regarding his right to testify on his own behalf.

In Abby Allen and Walter Moore v. Clarian Health Partners, Inc., a 24-page opinion, Judge Najam concludes:
In sum, the trial court erred when it granted Clarian's Rule 12(B)(6) motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Allen and Moore stated a claim for breach of contract under the Indiana Declaratory Judgments Act. More than a century of legal precedent, including recent Indiana Supreme Court authority, provides the proper legal framework for our conclusion that Allen and Moore have stated a claim for breach of contract upon which relief can be granted. The trial court's decision is reversed and this cause is remanded for further proceedings.
In Robert Glispie v. State of Indiana , a 7-page trespass case, Najam writes:
Robert Glispie appeals his conviction for criminal trespass, as a Class A misdemeanor, following a bench trial. Glispie presents a single issue for review, namely, whether the evidence is sufficient to support his conviction. We reverse. * * *

“[A] police officer who is neither an owner of a property nor an agent of an owner of a property cannot create a trespass violation by asking a patron to leave and then arrest the patron when [he] refuses to do so.” Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 763 (7th Cir. 2006) (opining on the meaning of Indiana law), corrected by, 2006 U.S. App. LEXIS 13604 (7th Cir. 2006). Similarly, here, an officer, if neither an owner nor an agent of the owner, cannot create a trespass violation by denying a person entry to private property and later discovering that person again on the property. Where a criminal trespass charge is based on communication by the property owner’s agent, the State must prove all of the elements necessary to show an agency relationship. Absent such evidence, the State fails to prove an essential element of the offense. * * *

The statute defining criminal trespass requires that entry on property be denied by either the owner or its agent. Ind. Code § 35-43-2-2(a)(1). Our legislature is deemed to know the meaning of the word “agent.” We must apply a criminal statute strictly according to its terms. See Lovitt v. State, 915 N.E.2d 1040, 1044 (Ind. Ct. App. 2009).

The evidence shows that Officer McPherson had given oral and written warnings to Glispie not to enter Modern’s property before he found Glispie again on the property on October 13. But even giving full credit to Officer McPherson’s testimony that he was acting as Modern’s agent, without any corroboration his testimony is insufficient to establish an agency relationship. The State failed to show the elements necessary for an agency relationship. As such, the State failed to prove an essential element of criminal trespass, namely, that the owner or its agent had denied Glispie entry onto the owner’s property. Therefore, the evidence is insufficient as a matter of law to support Glispie’s conviction. Reversed.

In Julie Nunley, n/k/a Waldrath v. Jeremy A. Nunley, a 6-page opinion, Judge Mathias writes:
The State appeals from the trial court's order modifying the child support obligation of Jeremy A. Nunley (“Nunley”) and raises one issue, which we restate as whether the trial court abused its discretion in concluding that Nunley was entitled to a reduction of his child support obligation due to the decrease in his income resulting from his incarceration for Class D felony nonsupport of a dependent. For the reasons set forth in Douglas v. State, No. 40A01-1009-DR-4668, ___ N.E.2d ___ (Ind. Ct. App. Oct. 12, 2011), another case handed down today, we affirm. [ILB: Douglas is the 2nd opinion in this entry.]
NFP civil opinions today (4):

In the Paternity of P.B.; D.B. v. M.B. (NFP)

Charles Ford v. Indiana Dept. of Correction, et al. (NFP)

In the Paternity of A.G.L.; N.H. v. M.M. (NFP)

In the Matter of the Commitment of P.S.; P.S. v. Richard L. Roudebush Veterans Affairs Medical Center (NFP)

NFP criminal opinions today (5):

Darik Morell, Sr. v. State of Indiana (NFP)

Steven Howey v. State of Indiana (NFP)

Jerramy Martin v. State of Indiana (NFP)

Luis Gonzales v. State of Indiana (NFP)

Julius A. Solis v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 12, 2011
Posted to Ind. App.Ct. Decisions

Law - It is now officially Faegre Baker Daniels, as of 1/1/12

Updating earlier ILB entries on the Baker & Daniels and Faegre & Benson merger plans, David Lat of Above the Law reports today in an entry headed "Law Firm Merger Mania: Faegre & Benson and Baker & Daniels Make It Official ." Most interesting to me was this:

The merger will take effect on January 1, 2012, and the new entity will be known as Faegre Baker Daniels. The website will be located at faegrebd.com (which right now is occupied by a GoDaddy.com placeholder page).
Later the entry quotes "a source at Faegre":
The joke around here seems to be the word “combination” — they don’t want to call it a merger, but Faegre is the one doing all of the technology unification (apparently BD has no infrastructure they care for themselves) and project management to make sure everything is completed. In my opinion, it’s a merger and we’re running the show.
Whois records show the domain name FAEGREBD.COM was registered through GoDaddy.com on June 2, 2011. The earliest news on a proposed merger was August 12th, according to ILB records.

[More] The WSJ Law Blog has this entry, with some useful links.

Posted by Marcia Oddi on Wednesday, October 12, 2011
Posted to General Law Related

Ind. Courts - More on "Less than half of Lake County's drunken drivers are convicted of that charge"

Updating this ILB entry from Sunday, Oct. 9th, quoting from a long investigative story in the NWI Times, reported by Marisa Kwiatkowski, here is the link to "the second installment of a two-day series based on a Times analysis of more than 9,000 misdemeanor and felony drunken driving cases." It is headed "Deadly DUI cycle plagues Lake County." A quote:

MADD National President Jan Withers said 38 states require drunken driving offenders to use an ignition system, which requires drivers to undergo periodic breath tests to activate their vehicles. The system requires a breath test not only at the time of starting the vehicle but also randomly during the drive, which discourages attempts to have someone other than the driver breathe into the system's tube.

Some states -- including Illinois -- require offenders to use the system after their first conviction, while other states mandate use of the system after offenders' second convictions.

Indiana does not have an ignition interlock law. It is up to the discretion of county prosecutors or judges.

In Lake County, prosecutors use alcohol counseling, probation, fines, community service, victim panels, ankle bracelets and -- less often -- incarceration to try to educate and deter offenders from continuing to drink and drive. The ignition interlock system rarely is used.

Lake County Prosecutor Bernard Carter previously told The Times there is merit to using ignition interlock, but the system is used sparingly because it is expensive.

Here is an editorial from the Oct. 11th issue of the NWI Times:
Times Staff Writer Marisa Kwiatkowski's analysis of more than 9,000 misdemeanor and felony drunken driving cases filed in Lake County between 2006 and 2010 found less than 40 percent resulted in drunken driving convictions.

More than half were reduced by plea agreement to misdemeanor reckless driving cases, and more than 700 defendants were arrested again on drunken driving charges within five-years.

This is in contrast with Porter and Marion counties, where prosecutors typically require defendants to plead guilty to a charge of operating while intoxicated, rather than reckless driving.

Prosecutor Bernard Carter told Kwiatkowski his office's policy for plea agreements is to take into account an offender's level of intoxication and whether there are other circumstances involved, including injuries, deaths or resisting law enforcement.

But that still doesn't preclude a narrower range of options for plea agreements.

Carter said if prosecutors' plea agreement guidelines were too stringent, defense attorneys would threaten to take every case to trial and clog the courts. Call that bluff.

The facts suggest the Lake County prosecutor's office has been treating drunken driving cases like an assembly line, just cranking through them quickly. It is all about bureaucratic efficiency rather than appropriate justice.

There are many stories of lives destroyed and families ripped apart because of drunken driving, sometimes by repeat offenders.

Carter must send a strong, public message to his staff that business as usual has come to an end.

It also appears Lake County's judges have gone along with these plea agreements. That should stop. They can, after all, reject a weak plea agreement and pressure the prosecutor's office to be more forceful in negotiating agreements.

Study the practices in Porter and Marion counties for guidance on how to prosecute these cases.

In addition, Lake County -- and the rest of Indiana -- should require ignition interlock devices on vehicles driven by anyone convicted of an alcohol-related offense to deter future drunken driving.

Drunken driving is a serious crime and needs to be taken seriously. The safety of those drivers, their passengers and others has been discounted too long.

Posted by Marcia Oddi on Wednesday, October 12, 2011
Posted to Indiana Courts

Ind. Gov't. - "The steady stream of retirement announcements from the Indiana General Assembly highlights the importance of next year’s legislative contests"

Well worth reading editorial today in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Wednesday, October 12, 2011
Posted to Indiana Government

Ind. Decisions - COA rules in Muncie City Council election dispute

Yesterday's COA opinion in the case of Julius T. Anderson v. Richard M.Ivy (ILB summary here) is the subject of a story today by Douglas Walker in the Muncie Star-Press. Some quotes:

The Indiana Court of Appeals ruled Tuesday that while Julius Anderson "violated numerous election laws" during the May 3 primary election, he will remain in place as the Democratic nominee for the District 6 seat on Muncie City Council. * * *

Delaware Circuit Court 3 Judge Linda Ralu Wolf * * * ruled that a special election be held Sept. 12 in precincts 12 and 20, with polling sites that Anderson was accused of repeatedly entering, in violation of election law, while primary voting was under way. * * *

"We are sympathetic to Ivy's argument given Anderson's numerous violations of our election laws and the Precinct 12 poll worker's misinterpretation of those laws and failure to enforce them," Judge Paul D. Mathis wrote in the three-member panel's ruling. "Anderson's conduct was at best, ill-informed, and at worst, reprehensible."

But the judges noted Anderson's misbehavior was limited to only two of the district's six precincts, and "there was no evidence from which we could conclude that Anderson corrupted the election results or that he intimidated or manipulated any voters."

"In other words, there was no evidence from which our court could conclude Anderson's actions substantially undermined the reliability of the election," Mathis wrote.

"Simply said," the judge wrote, "this is not a rare or exceptional case that warrants a special election."

The court did find that Anderson engaged in "electioneering" by campaigning in and just outside of the two polling sites, and noted such behavior can be the grounds for prosecution on a Class A misdemeanor charge.

Here is the report from Ballot Access News.

Posted by Marcia Oddi on Wednesday, October 12, 2011
Posted to Ind. App.Ct. Decisions

Tuesday, October 11, 2011

Ind. Gov't. - Charlie White, private citizen, files criminal complaint with prosecutor

6News Indy has the story. They also have a copy of the complaint White filed with the Marion County Prosecutor today.

Although 6News reports:

A representative with the Indiana Secretary of State's Office told 6News that the complaint was not filed on behalf of the office, and that White had filed the document as a private citizen
the blog Ogden on Politics quotes from a White press release that begins:
Secretary of State Charlie White files criminal voter fraud and homestead fraud charges against Evan Bayh

October 11, 2011 Indianapolis, IN - Indiana Secretary of State Charlie White filed a criminal complaint with the Marion County Prosecutor's office against Evan and Susan Bayh today for alleged voter and homestead fraud.

Posted by Marcia Oddi on Tuesday, October 11, 2011
Posted to Indiana Government

Ind. Decisions - One today from Supreme Court, re the factors "to determine whether an incarcerated parent is permitted to attend a hearing on the termination of his or her parental rights."

In The Involuntary Term. of Parent-Child Rel. of C.G. and Z.G., Z.G. v. Marion County Dept. of Child Services and Child Advocates, Inc., a 17-page, 5-0 opinion, Justice David writes:

We have granted transfer from the Court of Appeals on this case involving the termination of parental rights between the child, C.G., and the child‘s mother, Z.G. We write to discuss important issues of due process that have not previously been before this Court. In all other aspects, we summarily affirm the Court of Appeals. * * *

In this case, several errors were made by DCS which should not have been made. However, none of the errors rose to the level of violating Mother‘s due process rights or warranting reversal. Therefore, we affirm the order of the trial court terminating Mother‘s parental rights. We also set forth the above mentioned factors for our trial courts to determine whether an incarcerated parent is permitted to attend a hearing on the termination of his or her parental rights.

ILB: The 11 factors referenced by the opinion are set out in a quote on p. 13, taken from a West Virginia opinion.

Posted by Marcia Oddi on Tuesday, October 11, 2011
Posted to Ind. Sup.Ct. Decisions

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

In US v. Roger Loughry (SD Ind., Lawrence), a 21-page opinion, Judge Williams writes:

Roger Loughry was convicted of advertising, distributing, and conspiring to advertise and distribute child pornography through an online depository called the “Cache.” Only “lascivious exhibition” pornography, which included the exhibition of girls’ genitals, was permitted on the Cache. Images depicting sexual contact or other sexually explicit material were prohibited. Over Loughry’s Federal Rule of Evidence 403 objection, the district court allowed the government to show the jury several uncharged videos depicting “hard core” pornography discovered in Loughry’s home. We conclude that the district court erred in admitting the “hard core” pornography without examining it, in not explaining its reasoning under Rule 403, and in admitting the evidence even though it was highly inflammatory and had only minimal probative value. These errors were not harmless. Therefore, we reverse.

Posted by Marcia Oddi on Tuesday, October 11, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending October 7, 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 October 7, 2011. It is two pages (and 21 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Tuesday, October 11, 2011
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Julius T. Anderson v. Richard M.Ivy , a 13-page opinion, Judge Mathias writes:

Richard Ivy (“Ivy”), an unsuccessful candidate for the Democratic Party nomination for Muncie City Council, filed in Delaware Circuit Court a petition to contest the primary election in which Julius Anderson (“Anderson”) was declared the winner. The trial court granted Ivy's petition after concluding that Ivy met his burden of proving that he was entitled to a special election. Anderson appeals and argues that the trial court's decision is contrary to law because there was no evidence presented that his unlawful conduct affected any person's vote. Our review of the record does not disclose any evidence that Anderson's misconduct affected any votes, and therefore, we reverse.
NFP civil opinions today (1):

Term. of Parent-Child Rel. of G.H., T.H., and B.H.; I.H. (Father) v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (7):

Jeffrey Havvard v. State of Indiana (NFP)

Daniel W. Oliver v. State of Indiana (NFP)

Yusuf Fields v. State of Indiana (NFP)

Dawon Strong v. State of Indiana (NFP)

Justin Lashaway v. State of Indiana (NFP)

Randy S. Johnson v. State of Indiana (NFP)

Philip D. Krantz v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 11, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Clark council approves budget with special tax increase"

Updating earlier stories, including this one from Oct. 3rd, Ben Zion Hershberg of the Louisville Courier-Journal reports today:

The Clark County Council approved a $14.5 million general fund budget Monday that includes $1.5 million that it hopes to win in a pending lawsuit before the Indiana Tax Court.

If the county isn't allowed by the tax court to collect the additional $1.5 million, more cuts will have to be made, council member Brian Lenfert said.

The general fund budget approved by the council Monday night is $4 million less than was approved last year.

“That's a big step toward getting our fiscal house in order,” Lenfert said.

County government has been in a fiscal crisis for more than a year, and it has been sued by the county's judges and sheriff seeking enough money to keep their departments operating through the year.

Financial consultants say many of the county's fiscal problems stem from a decision by the county council in 2007 to cut property-tax collections by 25 percent, or $2.7 million, to relieve the burden on taxpayers.

But all of the roughly $4 million in county financial reserves have been spent since then, and because of state limits on how much counties can increase property tax collections from year to year, county revenues have fallen behind what's needed to operate county government.

Last year the county commissioners and council requested a special $7 million increase in property taxes for this year to close the gap, but it was rejected by the Indiana Department of Local Government Finance. The county has appealed that rejection to the Tax Court, which has scheduled a hearing on the appeal for Oct. 28 in Madison.

Posted by Marcia Oddi on Tuesday, October 11, 2011
Posted to Indiana Government

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

Updating this ILB entry from Sept. 26th, Marion Circuit Court Judge Louis Rosenberg has now set oral argument on the petition for judicial review (available here) filed by the Indiana Democratic Party on the petition for judicial review filed by the Indiana Democratic Party for November 23rd at 9:00 a.m. in the Marion County Circuit Court.

See the story by Carrie Ritchie of the Indianapolis Star here.

Posted by Marcia Oddi on Tuesday, October 11, 2011
Posted to Indiana Government

Monday, October 10, 2011

Ind. Courts - Interesting tweet ...

A tweet this evening from the Lafayette Journal Courier courts reporter:

Sophia Voravong Something I'll never understand: Why can 5 of 6 jurors return grand jury indictments in IN, but 12 of 12 jurors needed to acquit or convict?

Posted by Marcia Oddi on Monday, October 10, 2011
Posted to Indiana Courts

Ind. Decisions - "In Indiana, ‘fetal homicide’ laws can add up to 20 years to manslaughter sentences"

That headline is from a story by Ashley Lopez in the Oct. 7, 2011 issue of The Florida Independent. The story begins:

As a “fetal homicide” bill makes it to the Florida Legislature, Indiana residents are seeing prison sentences extended up to 20 years for a similar law in their state.

Fetal homicide laws are currently on the books in 27 states; they are typically similar to a federal law that recognizes fetuses at all stages of development as victims. These laws are typically championed by anti-abortion advocates, and opposed by civil rights and reproductive rights advocates. Florida has recently introduced a piece legislation that would put a fetal homicide law in place here.

The Florida paper then quotes an Oct. 5, 2011 Fort Wayne Journal Gazette story, reported by Jeff Wiehe, that the ILB missed. Some quotes:
A typical murder charge carries a sentence of 45 to 65 years in prison. By Indiana law, though, anyone who is convicted of murder in the killing of a pregnant woman is subject to six to 20 extra years of imprisonment if that killing also terminates the pregnancy. * * *

James Voyles, White’s Indianapolis-based defense attorney, objected to the witnesses and argued that the state law, as written, is unconstitutional.

The law, which took effect in 2009 after a pregnant bank teller in Indianapolis lost her unborn children in a shooting during a robbery, does not require the perpetrator to know the victim is pregnant to be applied.

“It prevents an individual in that circumstance to have a reasonable defense,” Voyles told the jury Tuesday morning.

Unlike Monday, when jurors deliberated for nearly six hours in deciding White’s guilt of murder, it took only a few minutes for them to return a decision that his wife was indeed pregnant and that he should face an enhanced prison sentence.

Here is some background on the Indiana law, from earlier ILB entries:

Posted by Marcia Oddi on Monday, October 10, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - The state lottery is a "a separate body politic and corporate from state government," except when it isn't ...

Today the Indianapolis Star had this editorial, headed "Lottery splurges, we lose." News stories last week reported on "the move from the Pan Am Plaza office tower to more expensive headquarters on North Meridian Street," along with nicer furniture, "coffee bars, lounges, artwork and an employee workout room with $20,000 in equipment." The editorial concludes:

The larger point, however, is that Densborn admits she and her staff didn't check state standards on spending before signing off on the $2 million office upgrade. Gov. Mitch Daniels stepped in last week, dispatching his press secretary to tour the new offices. Promises of correction have been made if the lottery did violate standards for spending public dollars.

That's a welcome, if belated, move. Too many Hoosiers already lose to the lottery the first time around; they shouldn't be treated like suckers on the back end as well.

ILB: My question is - what "standards for spending public dollars" apply here?

IC 4-30-3-1 begins: "There is created a state lottery commission as a body politic and corporate separate from the state."

IC 4-30-1-2 begins:

In construing this article, it is the intent of the general assembly that the following policies be carried out:
(1) That the lottery games be operated by the state lottery commission, which is created by IC 4-30-3 as a separate body politic and corporate from state government and should function as much as possible as an entrepreneurial business enterprise.
(2) That the general assembly recognizes that the operation of a lottery is a unique activity for state government and that policies and procedures appropriate for the performance of other governmental functions are not necessarily appropriate for the operation of a lottery.
Looking back to 2004, quasi-public entities were making news. This ILB entry from Dec. 29, 2004 includes:
Another scandal story today, this one on the front page of the Indianapolis Star, headlined "Official overbilled state for equipment, police say: Amid lax oversight, affidavit says, engineer may have triple-billed for computer gear." Again, the cause looks to include poor supervision. And again, as with many of the other recent scandals, including the BMV, the Lottery and PERF, the entities involved were not subject to the laws and review procedures of normal state agencies. Generally one of the reasons behind the creation of these quasi-publics is to "avoid red tape" -- meaning restrictions on personnel, purchasing and contracting, etc. ... The Star story today concludes:
The Solomon case is the latest in a series of incidents raising concerns about the state's ability to oversee spending, especially by groups that operate with no direct oversight from state government officials.

Earlier, the Public Employees' Retirement Fund unknowingly hired a convicted identity thief to help run the state pension fund.

In addition, the former leader of Indiana Web Academy, part of the Intelenet Commission, is under investigation for misspending.

And there have been significant fraud cases in the Bureau of Motor Vehicles and the Family and Social Services Administration.

[ILB: Note, however, that the FSSA is not a quasi-public; it is/was just, perhaps, too large.]
Despite this history, the Indiana quasi-public entities continue to exist. The Indiana Economic Development Commission (IEDC) has, I believe, been given even more autonomy since 2004. (Perhaps the IEDC too has an employees' gym or gym privileges; but there has been nothing in the news.)

It appears, unless someone can point to the standards for spending public dollars alluded to in the Star editorial today, that the Lottery Commission has operated as the law authorizes. "Red tape" applicable to state agencies does not apply to quasi-publics. Instead, as the statute provides, they are to "function as much as possible as an entrepreneurial business enterprises."

Hence the heading to this entry: "The state lottery is a 'a separate body politic and corporate from state government,' except when it isn't ...".
______________________

[A related question is, if the state lottery is a quasi-public entity, and thus not an arm of the State of Indiana, is it entitled to sovereign immunity? Several recent federal court decisions have said "no." This is from a May 16, 2009 ILB entry:

Judge Barker's Jan. 7, 2008 district court ruling finding the Lottery is not a state agency, Burrus v. State Lottery Comm’n, is available here and is discussed in the latter part of this ILB entry from May 31, 2008.

The 7th Circuit opinion affirming Judge Barker, holding "The Lottery is not entitled to sovereign immunity because it is not an arm of the state. ," is summarized in this Oct. 6, 2008 ILB entry.]

Posted by Marcia Oddi on Monday, October 10, 2011
Posted to Indiana Government

Ind. Gov't. - "Electoral Regulations at Stake in 13 Secretary of State Races"

That is the headline of this long survey article today in Governing. Some quotes:

Many secretaries of state have portfolios that include fairly neutral duties, such as overseeing the registration of businesses and lobbyists. But the main reason why they have become coveted and competitive offices in recent years is the role they can play in shaping how elections are conducted.

Part of this has to do with the perception that secretaries of state can aid their party in narrowly decided elections.

"Rightly or wrongly, there is a belief that having the party's secretary of state in office can influence the final outcome in a close race in that party's favor," says Republican Trey Grayson, who served as Kentucky's secretary of state and is now director of Harvard University's Institute of Politics. "In many cases, the secretary of state plays merely a clerical role by simply reporting the results that were tabulated at the local level. However, many Democrats blame Katherine Harris for President [George W.] Bush winning Florida in 2000, and many Republicans blame Mark Richie for Al Franken winning the Minnesota Senate recount in 2008."

But even if a secretary of state's power to decide elections is overrated, there are other reasons why the parties are interested in winning these races.

Secretaries of state have been key players in advocating their party's agenda for voting procedures. For Republicans, that usually means pushing tighter regulations, including photo identification requirements for voters and limits on how and where voters can be registered. For Democrats, that can mean loosening such standards, or at least blocking Republican efforts to tighten them.

"A secretary of state has a statewide platform from which to advocate for issues like photo ID or same-day registration," Grayson says. "A party switch in the secretary of state's office can result in different issues being discussed in a legislative body."

ILB: As readers are aware, our current Secretary of State was elected in the 2010 election, or not. The matter is still in contention -- see this list of earlier ILB entries.

Posted by Marcia Oddi on Monday, October 10, 2011
Posted to Indiana Government

Ind. Courts - "Judge: City Court in Crown Point making money "

Carrie Napoleon of the Gary Post-Tribune reports:

CROWN POINT — It may appear the city court is running in the red, but when revenues raised by the court for a number of nonreverting funds are factored in, the operation is a money-maker for the city.

City Court Judge Kent Jeffirs prepared a report for city officials detailing the court’s operation and how it has grown since 2004.

“When you factor in the other (funds), we are actually running at a profit to the city,” Jeffirs said.

In 2010, the city court’s income of $164,620 included $87,144 from the city’s general fund and $77,475 from civil suits and collections. Expenses for the same year were $217,956, resulting in a $53,335 loss. However, after factoring in how much money the courts turn over to the general fund for fees and generate for nonreverting funds in 2010 — $90,937 — the courts actually generated a profit of $37,601, Jeffirs said.

A statutory bond fee of $50 brought in $18,512 in 2010 and $172,530 since 2004. Late fees of $25 per incident collected by the courts brought in $9,075 in 2010 and $65,733 since 2004.

Monies in the court deferral fund, a nonreverting fund whose revenues cannot be deposited in the general fund, were $18,640 in 2010. Those fees went to fund Police Department expenses.

Posted by Marcia Oddi on Monday, October 10, 2011
Posted to Indiana Courts

Ind. Gov't. - "Poker Inc. To Uncle Sam: Shut Up And Deal"

The ILB has had a number of entries on online poker, the most recent being this one from Aug. 14th, quoting a NYT story headed "Starved State Budgets Inspire New Look at Web Gambling". This weekend Janet Morrissey of the NY Times had a long story tracing the recent legal history of online poker and the federal government and then continues with a lengthy section that begins:

In a bid for legitimacy, poker sites and players are pushing for the federal government to legalize, regulate and tax online poker. Big-name casinos, sensing opportunity, have thrown their weight behind the idea. Pushing back are conservative Christian groups like Focus on the Family, which argue that such a step would put a federal seal of approval on Internet gambling, with potentially disastrous consequences.

Posted by Marcia Oddi on Monday, October 10, 2011
Posted to Indiana Government

Law - "Governor Brown Vetoes Bill on Searching Cell Phones Incident to Arrest"

Recall this ILB entry from May 31, 2011, headed "Warrantless cell phone searches spread to more states," and this one from July 4th headed "California bill would require warrant to search cell phone."

Today Orin Kerr has an interesting entry in The Volokh Conspiracy Blog about the roles of the courts and the legislatures in "Fourth Amendment cases involving developing technologies like cell phones."

Posted by Marcia Oddi on Monday, October 10, 2011
Posted to General Law Related

Ind. Gov't. - "Move is afoot to collect sales tax from Amazon"

Here is a list of earlier ILB entries on Amazon.com and sales tax collection issues.

On Oct. 8, the Indianapolis Star had this story in its business section, reported by Dana Hunsinger Benbow. Some quotes:

After giving Amazon.com a break on collecting sales tax for years -- only to see the online retailer strike deals to remit the tax in other states where it locates -- Indiana is starting to feel a little neglected.

And the state's leading fiscal policy legislator -- Sen. Luke Kenley, R-Noblesville -- said he is ready to force the issue.

Kenley's determination came this week after Tennessee Gov. Bill Haslam announced a deal with Amazon to begin collecting Tennessee sales tax in 2014 and adding 2,000 full-time jobs at two new distribution centers.

Haslam said the agreement will balance the needs of Amazon and the state's bricks-and-mortar retailers. In most cases, online retailers are not required to collect sales tax unless they have a physical presence in the state.

"This Tennessee deal gives me a little more leverage to keep talking to (Amazon)," said Kenley, who chairs the Streamlined Sales Tax Governing Board, which is lobbying Congress to enact a uniform sales tax for all retailers.

While he would still like to see the patchwork of state sales taxes become uniform -- as would Amazon -- Kenley said the current Amazon arrangement had been bothering him even before the Tennessee deal was announced.

Two weeks ago, he called Amazon to talk about it.

"I said, 'Indiana is being pretty good to you guys. What are the chances you guys will start remitting sales tax to us?' " Kenley said.

The answer from Amazon?

The indication was that the message would be passed along, but "don't start counting the money yet," Kenley said. "Now that Tennessee has done this, I'll be asking again."

Indiana has been the place Amazon has turned to when other states force the sales tax issue. Not only does the Hoosier state give Amazon a pass on collecting taxes, its legislators actually deleted a chunk of language from state law four years ago to make sure it didn't have to.

Indiana has been the place Amazon has turned to when other states force the sales tax issue. Not only does the Hoosier state give Amazon a pass on collecting taxes, its legislators actually deleted a chunk of language from state law four years ago to make sure it didn't have to. * * *

Amazon said this week it will invest $350 million in Tennessee. No decision has been made on the locations of the new distribution centers.

Amazon previously announced centers in the Tennessee cities of Cleveland, Chattanooga and Lebanon. That agreement had provided Amazon an indefinite waiver on collecting state sales tax.

Pressure on the Haslam administration to come to better terms increased after Amazon agreed to begin collecting state sales taxes in South Carolina and California in the coming years.

Posted by Marcia Oddi on Monday, October 10, 2011
Posted to Indiana Government

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

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

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

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

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

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

Posted by Marcia Oddi on Monday, October 10, 2011
Posted to Environment

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

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

From Sunday, October 9, 2011:

From Saturday, October 8, 2011: From late Friday afternoon, October 7, 2011:

Posted by Marcia Oddi on Monday, October 10, 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 10/10/11):

Thursday, October 13th

Next week's oral arguments before the Supreme Court (week of 10/17/11):

Tuesday, October 18th

Wednesday, October 19th

Webcasts of Supreme Court oral arguments are available here.



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

Thursday, October 13th

Next week's oral arguments before the Court of Appeals (week of 10/17/11):

Wednesday, October 19th

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, October 10, 2011
Posted to Upcoming Oral Arguments

Sunday, October 09, 2011

Law - "Signing scandal hitting home: Dubious names affect verification of deeds"

What is so bad about fraudulent mortgage documents? See this Oct. 2, 2010 Daily Finance article by Abigail Field for background. A few quotes:

Documents like those cited in this article -- which are common -- falsify the chain of title for the underlying properties. Clean title is so crucial for real estate deals that they won't close if a seller can't give good title. In fact, one major title insurer, Old Republic National Title Insurance, will no longer insure titles for GMAC foreclosures because of the document problem. The stock market is weighing in, too, as shares of title insurers have taken a hit. * * *

Beyond the title problem is the fundamental issue of the integrity of the court system. When attorneys file false documents, it's called a fraud on the court for a reason: Courts can't function when lawyers do that.

Dan Stockman of the Fort Wayne Journal Gazette has a very long article today on how pervasive the practice of improper verification of mortgage documents is in Allen County. Some quotes:
The problem [is] so big it spawned a new word to describe it: “robo-signing,” meaning offices filled with low-paid workers signing documents they had never read, documents they were not qualified to sign and often signing someone else’s name. * * *

[Allen County Recorder John McGauley] said it throws the whole system into question.

“For a hundred years, the property ownership system in Indiana was based on trust. You assumed you could trust the documents recorded in the recorder’s office. That has deteriorated,” he said. “This is supposed to be the public record. It becomes history. … At best, it muddies that process; at worst, it turns it into garbage.”

But the real concern is for people who have done nothing wrong but may have a home sale or purchase fall apart because a bank cut corners.

“That’s when you run into a problem,” [Scott Moore, vice president of sales and marketing for Fidlar Technologies] said. “If I have my house for sale and you want to buy it, the bank giving you the mortgage requires title insurance. If the title company says they’re not going to insure the transaction because of robo-signed documents, you are not buying my house.”

Posted by Marcia Oddi on Sunday, October 09, 2011
Posted to General Law Related

Courts - "A Judge’s Education, a Sentence at a Time"

Judge Denny Chin of Federal District Court in Manhattan and the thought process behind his sentencing decisions is the subject of a very long story today in the NY Times, reported by Benjamin Weiser. A few quotes:

Judge Chin, 57, who last year was elevated by President Obama to the United States Court of Appeals for the Second Circuit, in New York, after nearly 16 years on the trial bench, is best known for the 150-year sentence he gave Bernard L. Madoff, arguably the most prominent white-collar sentence in the history of American law.

But it has been largely anonymous defendants ... whose cases have influenced his thinking about how to balance punishment and rehabilitation, deterrence and compassion.

“There’s no doubt that all of these cases shaped me,” Judge Chin said, “and shaped the way I think, and the way I respond to things.”

He took the bench in 1994 at age 40 with little experience in criminal law. He has since sentenced more than 1,100 defendants, including at least a dozen who received sentences of life or the equivalent, according to court statistics. He quickly learned, he said, that preparation was crucial and that he must not agonize over his decisions. One seasoned judge had advised: “Rule and roll.” Be decisive. Don’t second-guess yourself.

In a series of interviews conducted in person and through e-mail over the past year, Judge Chin discussed his most challenging sentencing decisions, cases that became essential parts of his education as a judge. The interviews were unusual; judges rarely agree to discuss cases, even closed ones, like these, outside court. The exchanges provided a revealing look at how one judge approached the task of sentencing, which he called “the hardest thing” about being on the bench.

“It is just not a natural or everyday thing to do,” Judge Chin explained, “to pass judgment on people, to send them to prison or not.”

“I mean, there is so much at stake,” he added, “and there are so many different considerations that come into play.”

Posted by Marcia Oddi on Sunday, October 09, 2011
Posted to Courts in general

Ind. Courts - "Hogsett brings more muscle to crimefighting: U.S. attorney boosts Evansville efforts"

Eric Bradner of the Evansville Courier & Press has the long story today -- some quotes:

INDIANAPOLIS — After one year on the job, Joe Hogsett has elevated both the profile of the U.S. attorney's office and the frequency with which the office is using its authority to prosecute gun and drug crimes on the federal level.

Hogsett, the U.S. attorney for Indiana's southern district, has set ambitious goals in hopes of underscoring the federal prosecutor's role in Indiana's law enforcement community.

"I want the number of criminal prosecutions to increase, particularly in those that involve violence. I want the number of defendants charged to go up. I want the number of convictions to increase," Hogsett said.

It's a set of goals that involves him invoking the office's power to pursue violent criminals at a markedly higher rate than his predecessors.

It's also required Hogsett, a former Indiana secretary of state with a long background in Democratic politics, to employ his old skills to increase his new office's profile and its level of contact with local law enforcement officials. * * *

Hogsett himself has included monthly trips to the Evansville office on his packed travel schedule.

That schedule has included visits to all 60 counties in the southern district. Hogsett said he tries to travel at least one day each week, and when he does, he said he typically schedules several stops.

Many places, he said, local officials tell him they've never met a U.S. attorney before.

"It amazed me as I would talk to friends through Indiana how little people knew of what the U.S. attorney did at all – and I'm talking about lawyers and law enforcement," he said. "What the profile has done is put a face on a very important commitment."

Eric Williams, the Vanderburgh County sheriff, said local law enforcement officials and their federal counterparts in the U.S. attorney's office, the U.S. Marshal Service, the Federal Bureau of Investigation and others have traditionally avoided turf battles.

"We feel like we work really, really well together. We each have different things to bring to the table when it comes to putting bad guys in jail," he said.

What's different about Hogsett, Williams said, is the amount of contact he has with local officials.

"I think he is doing a very good job of communicating and trying to build cooperative and collaborative relationships with local law enforcement," he said.

"I have found him to be very willing to work with us on issues, and he's been very inclusive of us."

Posted by Marcia Oddi on Sunday, October 09, 2011
Posted to Indiana Courts

Ind. Courts - "Delaware County judge denies request for injunction to smoking ban"

Douglas Walker reports in the Muncie Star-Press:

Cigarette smoking won't be allowed in Delaware County's taverns and fraternal organizations any time soon.

Delaware Circuit Court 1 Judge Marianne Vorhees on Friday denied a request for a temporary injunction against the enhanced smoking ordinance that was enacted by the county commissioners in August.

In a Friday ruling, Vorhees, who had presided over a hearing on the request Monday, wrote that efforts to obtain the injunction should have taken place before the ordinance went into effect Aug. 11.

"I feel strongly that the appropriate way to have handled the case would have been to stop the ordinance's enforcement before it went into effect, to allow at least a few months for a circuit court to review the ordinance," the judge wrote.

Vorhees noted she was not appointed to preside over a related lawsuit -- aimed at permanently overturning the ordinance, filed by the Delaware County Licensed Beverage Association, four local fraternal organizations and a tobacco shop -- until Aug. 31.

"Once the ordinance went into effect, people started relying on and behaving pursuant to the ordinance," Vorhees wrote. "Now that the ordinance has gone into effect, a different set of variables comes into play, especially the likelihood that the ordinance will eventually be upheld."

The judge said with the ordinance already in effect, and "no solid case law upon which to base a finding that success on the merits (of the lawsuit) is 'reasonably likely'" the request for the temporary injunction was denied -- with one minor exception.

A section of the ordinance that refers to those smoking with 12 feet of a business "is vague and cannot be enforced in its present form," the judge wrote. People who are smoking as they walk past a bar they don't intend to enter, or those smoking when they pull up to a restaurant's drive-thru window could constitute violations as that section is now worded, she wrote.

Posted by Marcia Oddi on Sunday, October 09, 2011
Posted to Ind. Trial Ct. Decisions

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

Supplementing this ILB entry from Sept. 1st, and this one from Aug. 22nd that was headed "Memory should be treated 'as a form of trace evidence: a fragment collected at the scene of a crime, like a fingerprint or blood smear, whose integrity and reliability need to be monitored and assessed ...'", John Tuohy of the Indianapolis Star has a lengthy story today on Carlos Starks, a case of mistaken indentity:

After 11 months in jail, Carlos Starks finally got his day in court.

Thirty hours later, he was a free man.

One after another, witnesses who had fingered him for the shooting death of Douglas Craft told prosecutors, "That's not him."

"I kept looking around the courtroom for the guy who did the shooting," said witness Patricia Baker. "I said, 'That can't be him. That isn't him.' He didn't look anything like the person I identified."

Marion Superior Court Judge Patricia Gifford dismissed the case with prejudice, which means Starks cannot be tried on the same charge again. Starks, jailed since Oct. 5, 2010, was released Sept. 13.

Starks' ordeal helps explain why judges, legislatures and researchers across the country are casting an increasingly skeptical eye on the value of eyewitness testimony -- especially testimony based on photo lineups.

"This is just an egregious example of how damaging eyewitness accounts can be and the lack of fair play," said Fran Watson, a professor of law at Indiana University School of Law-Indianapolis and a former chief of the Marion County Public Defender Agency. "People get sentenced to death because of misidentifications like this."

Accompanying the Star story is a side-bar detailing Indianapolis Metropolitan Police Department procedures for photo arrays.

The two earlier ILB entries include much useful background material.

Posted by Marcia Oddi on Sunday, October 09, 2011
Posted to Courts in general

Ind. Gov't. - "2008 Clinton, Obama Indiana primary petitions tainted by forged signatures"

A long story today in the South Bend Tribune, by reporters Erin Blasko and Kevin Allen, plus Ryan Nees of Howey Politics, begins:

SOUTH BEND -- The signatures of dozens, if not hundreds, of northern Indiana residents were faked on petitions used to place presidential candidates on the state primary ballot in 2008, The Tribune and Howey Politics Indiana have revealed in an investigation.

Several pages from petitions used to qualify Hillary Clinton and Barack Obama for the state's Democratic primary contain names and signatures that appear to have been copied by hand from a petition for Democratic gubernatorial candidate Jim Schellinger. The petitions were filed with the Indiana Election Division after the St. Joseph County Voter Registration Office verified individuals' information on the documents.

Posted by Marcia Oddi on Sunday, October 09, 2011
Posted to Indiana Government

Ind. Courts - "Less than half of Lake County's drunken drivers are convicted of that charge"

That is the headline to a long story today in the NWI Times, reported by Marisa Kwiatkowski.From a side-bar:

This is the first installment of a two-day series based on a Times analysis of more than 9,000 misdemeanor and felony drunken driving cases.

Coming Monday, The Times analyzes how repeat offenders' drunken driving cases are handled and the effect those offenders have on the community.

The side-bar also links to two related stories today. The lead story begins:
Harsher punishment for a repeat drunken driving offender could have saved the lives of a young region couple, the mother of one of the victims said.

That offender, Mario Cadena, twice received leniency from prosecutors and a judge before triggering a fatal crash in April 2008 that killed him and three others.

Cadena, 30, of Crown Point; Garry Weiss, 53, of Crown Point; Stephen Hough, 26, of Merrillville; and Amy Bartelmey, 25, of Hobart, all died of blunt force trauma with massive internal injuries in the three-car accident at the intersection of 101st Avenue and Randolph Street near the Merrillville-Winfield border, according to the Lake County coroner's office.

Cadena's blood alcohol level was 0.17 -- more than twice Indiana's 0.08 legal limit.

Cadena's experiences in the Lake County courts system were typical of first- and second-time offenders, a Times analysis of five years of drunken driving cases shows.

Less than 40 percent of drunken driving cases filed in the last five years resulted in drunken driving convictions, a Times investigation found.

The Times analyzed more than 9,000 misdemeanor and felony drunken driving cases filed in Lake County between 2006 and 2010.

Later in the story, from a section headed "How Lake County compares:"
Jack Crawford, a defense attorney and former Lake County prosecutor, said public perception determines how prosecutors handle drunken driving cases.

"Murder, rape, robbery, child molesting -- people think, 'I would never do that. None of my friends would ever do that,'" he said. "But when it comes to operating while intoxicated, it's a little bit difficult to argue that same point."

Some counties require jail time for first-time drunken drivers, while others are less severe.

Porter County prosecutors typically require defendants to plead guilty to an operating while intoxicated charge, as do Marion County prosecutors. Officials in both offices said they rarely will plead cases down to reckless driving.

In Cook County, first-time drunken driving offenders typically are sentenced to court supervision, according to defense attorneys who practice there. Court supervision is not a drunken driving conviction but still appears on an offender's criminal record.

Crawford said drunken drivers receive the most lenient treatment in Floyd and Clark counties in southern Indiana, followed by Lake County.

"I know at first glance that might appear to be unfair," he said. "If you have the same law in one county, and you're convicted of it, shouldn't you receive either the same or at least close to the same penalty as if you were convicted in a county 300 miles away? Technically and legally, I suppose that's true, but, practically, it isn't true."

Brad Banks, a division supervisor in the Marion County prosecutor's office, said the majority of first-time offenders in Marion County plead guilty to a drunken driving charge.

He said prosecutors take a harder line on those cases because of the number of drunken-driving-related deaths in Marion County.

"It makes us more keenly aware of what can be a worst-case scenario," Banks said. "We're aware of how serious crashing into a building or a tree could have been."

Local police officers who enforce Indiana's drunken driving laws said their goal is to keep drunken drivers off the roads no matter how the cases are handled in court.

Posted by Marcia Oddi on Sunday, October 09, 2011
Posted to Indiana Courts

Ind. Gov't. - "AG files suit in three counties after audits found money was misappropriated"

Two stories from Oct. 4th:

Today the NWI Times has an editorial, aptly headed "Many lessons from town court scandal," that makes a number of good points:
The Merrillville Town Court scandal has many facets, but today's discussion involves just a few of the lessons to be learned.

Virlissa Crenshaw has been accused of pocketing more than $310,000 in bond money over five years while an employee of the court. A State Board of Accounts audit identified her, and she was fired in early April.

Last week, Indiana Attorney General Greg Zoeller filed a civil lawsuit against Crenshaw, seeking repayment.

Lake County Prosecutor Bernard Carter recused himself from the case because Crenshaw is his niece.

Carter had no choice, ethically, but to recuse himself from the case involving a relative. He brought in state police to investigate after hearing about the firing.

It is to Carter's credit that he asked the LaPorte County prosecutor to serve as a special prosecutor in this case to further distance himself.

That special prosecutor is handling the criminal side of this case. Zoeller is handling the civil aspect as the state's collection agent.

Because of this case, along with the 33 other recovery actions involving public funds since Zoeller took office in 2009, we support his legislative push to require two signatures for all major expenditures in all municipalities, not just large cities such as Indianapolis, Gary and Hammond. The opportunity for fraud must be reduced.

This is an action that must be taken by the Indiana General Assembly. It should do so in the next legislative session to protect public funds from future opportunities for fraud.

Yes, it will require extra work to get the extra signature. Zoeller acknowledges that.

"It's a hassle to collect that money, too," Zoeller said last week.

Finally, the Merrillville Town Council should look at the operation of the court itself.

The Town Court, it has been said, costs more to operate than it takes in. So why does Merrillville continue to operate the court?

Instead, the Town Council should talk with Crown Point and other communities to work on a consolidation plan for a court that generates enough revenue to support itself without charging excessive fines. Barring that, shut down the court and let the county's courts take over those responsibilities.

But don't let the Town Court be a financial drain.

Finally, see the long news release from AG Zoeller dated Oct. 4. It details the suits filed to recover public funds that the State Board of Accounts found were misappropriated, and includes links. A quote:
"When only one individual handles the public money in a government office without oversight or financial controls, it's often a recipe for misspending or embezzlement. That's why I will ask the next session of the Legislature to pass a bill to tighten state law, and require dual signatures before certain expenditures can be made. Review by a second person would help deter some of the outrageous embezzlement schemes we see in audits," Zoeller said.

Posted by Marcia Oddi on Sunday, October 09, 2011
Posted to Indiana Government

Ind. Decisions - "COA backs teacher's handling of disruptive pupil"

The COA opinion Oct. 6th in the case of Andrew Kesling v. Dorothy Kesling, Adam Kesling and Emily Kesling In Catherine A. Littleton v. State of Indiana (ILB entry here) was the subject of this story by Bill McCleery in the Oct. 8th Indianapolis Star. Some quotes:

A Perry Township teacher broke no laws when she approved a classroom aide's decision to strap a disruptive student into a chair, the Indiana Court of Appeals ruled this week.

The appellate court dismissed charges against Catherine Littleton of confinement, battery and neglect of a dependent -- reversing a trial court's earlier deliberations. * * *

Whatever the merits -- or lack thereof -- of using the chair, Littleton possessed "qualified immunity" as a teacher. That status provides legal protection "with respect to a disciplinary action take to promote student conduct," the court noted, "if the action is taken in good faith and is reasonable."

"However unusual or surprising at first blush the path chosen may have been," the three judges wrote in the decision, "Littleton's and Stokes' efforts to calm (the student) succeeded without imposing harm or apparently even risking harm."

The decision also noted that the chair appeared successful in calming the student. The judges cited the aide's testimony that the student "laughed" during the process of being confined to the chair and proceeded with the rest of the school day "perfectly content" after eventually calming down.

Littleton remains on administrative leave without pay from Perry Meridian Middle School.

Posted by Marcia Oddi on Sunday, October 09, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Ohio high court drawn into magnetic-homes case"

David Eggert reported the story in last Wednesday's Columbus Dispatch. Some quotes:

After they moved into brand-new homes, two Canal Winchester couples discovered they were living inside magnets.

Their TV screens were distorted. Cordless phones ran into interference. Computer hard drives were corrupted.

The culprit: steel joists that had become magnetized, perhaps during construction.

Now, the Ohio Supreme Court is weighing if the couples can sue the builder, Centex Homes, or if they gave up that right by signing sales contracts limiting what problems the homebuilder has to fix. * * *

By signing the contracts, the buyers agreed to waive claims for repairs except those specifically mentioned in a separate document, which was available for inspection at a separate location and not before or at the time they bought the houses.

The couples sued in 2007. Both the Franklin County Common Pleas Court in 2009 and the 10th District Court of Appeals in 2010 ruled in Centex’s favor, citing the wording of the sales contract.

The couples’ attorney told the justices that a jury should have the opportunity to hear the homeowners’ case.

No matter what his clients signed, homebuilders still have an underlying duty to construct a house in a “workmanlike manner,” Edwards said. Even if the builder’s responsibility to the buyers can be waived, they were never told they were giving something up, he added.

“Not one citizen in the state of Ohio believes that if they go in and sign a contract ... they have nothing,” Edwards said. “That is, in my opinion, against the public policy of the state of Ohio.” * * *

Because the suit was dismissed before a trial could be held, it remains unclear exactly how the joists became magnetized. Justices tried to find out yesterday with questions to the attorneys, but they did not learn much on that point.

Posted by Marcia Oddi on Sunday, October 09, 2011
Posted to Courts in general

Friday, October 07, 2011

Ind. Decisions - Supreme Court suspends attorney pendente lite

Last December 9th WISH TV had a report that began:

An Indianapolis lawyer was charged with battery after an incident with her boyfriend, but got into even more trouble when officials found a weapon in her bra while booking her into jail.

Police said Olubunmi Okanlami was hiding a 1 inch pocket knife in her bra. She is charged with 3 felonies, and her status with the Indiana Law Review Board is pending.

She's accused of beating her boyfriend, carrying a concealed weapon and assaulting an officer while she was in the process of being detained.

"She is presumed innocent until proven guilty," said Marion County Prosecutor Carl Brizzi.

Why is this now news? Because in a one-page order dated Oct. 6th, the Supreme Court has now ordered that the attorney be "suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony * * * effective fifteen (15) days from the date of this order."

The ABA Journal blog today notes:

She worked as a labor and employment associate at Barnes & Thornburg in Indianapolis until mid-2009, following by a less-than-one-year stint as city attorney of Kokomo, Ind., in 2010.
This Above the Law entry from last December has some additional information.

[More] This long story at Progressive Greek blog, dated April 15, 2010, reports Ms. Okanlami's hiring by the City of Kokomo.

Posted by Marcia Oddi on Friday, October 07, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court determines "best practices" not appropriate for formal rulemaking

In early January the Attorney General issued a press release and filed a 7-page petition with the Supreme Court asking that the Court promulgate an order establishing best practices to be observed and enforced in actions to foreclose mortgages in Indiana courts. In Feb. the Court asked for public input on the best practices.

Today the Supreme Court has issued a 3-page Order on Mortgage Foreclosure Best Practices. Some quotes:

Six of the Best Practices have become law in the course of the last few months, incorporated into Senate Enrolled Act 582, which took effect July 1 of this year. Moreover, several of the comments tendered in response to the Attorney General's petition have been incorporated into the Best Practices. In addition, twenty counties in the Supreme Court's Mortgage Foreclosure Trial Court Assistance Project, covering about two-thirds of the state's foreclosure filings, have adopted the Mortgage Foreclosure Best Practices for use in foreclosure proceedings.

Given the tenor of the submitted comments, and in light of the relatively frequent changes within the mortgage industry, the Court has concluded that it would be more advantageous to keep these Best Practices fluid, and to request that they be continually updated by the Supreme Court's Mortgage Foreclosure Task Force.

Posted by Marcia Oddi on Friday, October 07, 2011
Posted to Indiana Courts

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

For publication opinions today (3):

In Joseph A. Taylor v. Alan P. Finnan, an 8-page opinion in a pro se appeal, Judge Crone writes:

Joseph A. Taylor is currently incarcerated in Pendleton Correctional Facility, and he filed a petition for writ of habeas corpus in Madison Circuit Court. The petition alleged that his convictions for attempted voluntary manslaughter, burglary, two counts of criminal confinement, and battery are void because his trial attorney was not admitted to practice law in Indiana. The trial court reviewed his petition pursuant to Indiana Code Section 34-58-1-2, which requires courts to review complaints and petitions filed by offenders to determine whether they are frivolous. The court determined that Taylor’s petition should be considered a petition for post-conviction relief and therefore should have been filed in Floyd County, where Taylor was convicted and sentenced. The court therefore dismissed Taylor’s petition.1 Although we agree with the trial court that Taylor’s claim should proceed as a petition for post-conviction relief, Post-Conviction Rule 1(1)(c) dictates that the court should have transferred the case to Floyd County rather than dismiss it. Therefore, we reverse and remand with instructions to transfer the case to Floyd County.
In Lisa A. Davis v. Review Board of the Indiana Department of Workforce Development and VOCA of Indiana LLC, a 9-page opinion, Judge Najam writes:
Lisa A. Davis, pro se, appeals the decision of the Review Board of the Indiana Department of Workforce Development (“Review Board”), which affirmed the decision of the administrative law judge (“ALJ”) determining that she had been terminated for cause and, therefore, was not eligible for unemployment benefits. We consider the following issues for review: 1. Whether the Review Board abused its discretion when it refused to reinstate Davis’ appeal before the ALJ to allow Davis to participate in the hearing. 2. Whether the Review Board erred when it determined that Davis had been terminated for just cause. We affirm. * * *

Davis had an affirmative duty to provide a telephone number, and that requirement was not unreasonable. Her failure to participate in the telephonic hearing resulted entirely from her disregard for explicit instructions that she provide the ALJ with her telephone number. Thus, Davis has not shown good cause for her failure to appear at the hearing, and she has not shown that the Review Board abused its discretion when it denied her request to reinstate her appeal. * * *

Based on its finding that Davis had violated the employer’s policies, the Review Board ultimately found that Davis’ employment was terminated for cause. That finding is reasonable.

In James Fernbach v. State of Indiana , a 17-page opinion, Judge Mathias writes:
James Fernbach was convicted in Ripley Circuit Court of two counts of Class A felony attempted murder and sentenced to a total of sixty years incarceration. Fernbach appeals and presents two issues, which we restate as: (1) whether the jury clearly erred in finding Fernbach guilty but mentally ill instead of not guilty by reason of insanity; and (2) whether the sentence imposed by the trial court is inappropriate. We affirm. * * *

We do not doubt that Fernbach suffers from some form of mental illness, and it is our sincere hope that he receives adequate treatment for his mental illness while in the custody of the Department of Correction. But the question is not whether we think Fernbach was insane at the time of the shootings. The question is whether there was sufficient evidence of probative value supporting the jury’s conclusion that Fernbach was not insane at the time of his crimes. Under the facts and circumstances in the present case, we are unable to say that the jury’s conclusion was clearly erroneous.

NFP civil opinions today (1):

Kelley Seibert d/b/a Seibert's Kennel v. Rick Bryant (NFP)

NFP criminal opinions today (2):

Jerramy Moore v. State of Indiana (NFP)

Bane Elliott v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 07, 2011
Posted to Ind. App.Ct. Decisions

Environment - "The Muncie Parks Department's efforts to save money by burning tree waste backfired on Tuesday"

So reports Seth Slabaugh in the Muncie Star-Press earlier this week. More from the long story:

Smoke from the fire along the railroad tracks bordering McCulloch Park blew into the downtown and surrounding residential neighborhoods, prompting calls to 911 and health concerns.

The fire, which eventually was extinguished by the Muncie Fire Department, also violated the state's open burning laws, which will result in the parks department being sent a warning letter from the Indiana Department of Environmental Management.

Parks Supt. Matt Bailey blamed the State Board of Accounts.

"The reason we're doing this is just to save money," Bailey said. "We have to either pay to take it to the dump or burn it."

Posted by Marcia Oddi on Friday, October 07, 2011
Posted to Environment | Indiana Government

Ind. Courts - More on "Blogger Jailed; Allegedly Threatened Dearborn Judge"

Updating this story from April 28th and this one from March 11, 2011, Eagle Country 99.3 FM has an Oct. 5th story headed "Blogger On Trial For Intimidating Judge."

Posted by Marcia Oddi on Friday, October 07, 2011
Posted to Indiana Courts

Ind. Court - Asphalt plant lawsuit and statute of limitations issue

Interesting story yesterday by David A. Mann of the Jeffersonville News and Tribune. Some quotes:

JEFFERSONVILLE — Motions for summary judgment, presented in a case involving Mac Construction’s Asphalt Plant in Jeffersonville, went before Judge Jerry Jacobi on Wednesday. * * *

The asphalt plant has made headlines for more than three years as residents of the Jefferson Court trailer park have protested it, complaining of soot, noise and odor problems. The plant, which opened in 2006, is along Quarry Road in Jeffersonville and operates inside the Hanson Quarry, just outside the neighborhood. Protesters say the plant is out of compliance with zoning regulations and that a hearing on its construction was never held.

At issue during Wednesday’s hearing was a five-year statute of limitations that applies to public officers in Indiana. Leslie C. Shively, Mac’s attorney, argued that the case against his client was filed months after that statute expired. A July 2005 letter from Jeffersonville’s Planning and Zoning director and an August 2005 building permit — both of which allowed the plant to move forward — were more than 5 years old when the lawsuit was filed, he said.

However, a major question during the hearing was whether the persons issuing the letter and the permit — former Planning and Zoning Director Chester Hicks and Building Commissioner Russ Segraves, respectively — are considered public officers for the purposes of the statute of limitations.

Eli Baccus, an attorney representing the plaintiff in the case, plant neighbor Pat Barrow, argued that state statute did not require either a planning and zoning director or a building commissioner at the city government level. Former Jeffersonville Mayor Rob Waiz had the authority to hire the two, he said, but that didn’t make them public officers.

Further, Baccus said state law requires public officers to take an oath of office. He noted that Hicks testified previously that he didn’t remember taking an oath and that Segraves testified he had not taken an oath of office.

Attorney Larry Wilder, who’s representing the city in the case, said questioning the oath was a diminutive argument, saying the mayor had the authority to delegate responsibilities for planning and building permits.

Jacobi, noting a past incident involving a county surveyor who didn’t take the oath, offered his opinion on the argument during the hearing.

“It is important. It’s more than a formality. In the case of the surveyor it had dramatic consequences,” he said.

Posted by Marcia Oddi on Friday, October 07, 2011
Posted to Environment | Indiana Courts | Indiana Government

Ind. Gov't. - Big election law bill vs. all inclusive "budget" bills

Andrea Neal, adjunct scholar with the Indiana Policy Review Foundation, has a column this week on the confusion over the "measure [that] removes from the ballot municipal candidates who are unopposed." The ILB has had a number of entries on this issue, the most recent being this one yesterday.

Neal's column concludes with this:

The dust up over HB 1242 raises two deeper issues that lawmakers might want to tackle next session as well.

The first is the epidemic of unopposed races. It takes work for political parties to recruit candidates for municipal offices, especially in counties where one party dominates. But it's vitally important for the future of democracy to give voters choices in the General Election. Might lawmakers have creative ideas to encourage citizens to run for office?

Second: Does the legislative process need internal checks to make sure all legislation gets properly debated? A search for newspaper clippings unearthed no coverage of the provision, which did not appear in the introduced version of HB 1242 but was added later as an amendment.

"It slipped by people; it certainly did me," Senate Leader Long told the Fort Wayne Journal-Gazette. "It was tucked in a big bill."

Maybe that's the problem. The version signed into law by Gov. Mitch Daniels took up 67 pages and included 31 separate changes in election law. It shouldn't be so easy to slip something bad by the Senate President and the House Speaker.

Re the second issue -- well, yes. It is certainly true that big bills may not be debated in full and that amendments may be slipped in at the last minute. (Or that their impact may not be immediately obvious.) But at least this bill focused on a single subject, election law.

Neal apparently has not had the opportunity to review the past two decades of the biennial budget bills and their "surprises." See, for instance:

Posted by Marcia Oddi on Friday, October 07, 2011
Posted to Indiana Government

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

Updating this ILB entry from Sept. 20th, Douglas Walker reports today in the Muncie Star-Press - some quotes from the long story:

MUNCIE -- After a little more than an hour of deliberations, a Delaware Circuit Court 4 jury on Thursday determined that a local physician should not pay damages as a result of circumcising an infant in 2003.

The jury -- made up of three men and three women -- found in favor of physician Michael R. Burt, and against the now-7-year-old youngster and his mother, whose attorney on Thursday suggested they should receive damages in excess of $400,000. * * *

Burt's attorneys -- Benjamin Ice and Edward L. Murphy Jr. of Fort Wayne -- in closing arguments Thursday acknowledged their client had made an honest mistake, but insisted no evidence was presented to indicate being circumcised would prevent the youth from having a happy and productive life. * * *

Murphy scoffed at a suggestion by the lawyer for the boy and his mother -- David Llewellyn, an Atlanta attorney who has made a specialty of circumcision-related litigation -- that the boy should be compensated for suffering that would last a lifetime.

"Let's pay (the boy) $15 a day until he dies?" asked Murphy. "That's nonsense!"

Murphy said a ruling giving the boy $400,000 in damages would "open the courthouse door to every kid who's been circumcised."

When Llewellyn interrupted Murphy's closing remarks, Judge John Feick warned the Georgia attorney that he would be found in contempt of court if he did it a second time. * * *

The Atlanta lawyer compared the response by some to circumsion-related litigation to the ridicule that courtroom efforts on behalf of civil rights drew in the mid-20th century.

Posted by Marcia Oddi on Friday, October 07, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Confusion re "Gibson attorney pleads guilty to pornography, obstructing justice charges"

The ILB is somewhat confused about the sentencing of Princeton attorney William R. Wallace III. When last we posted, the judge had called for a review yesterday of the sentence he had imposed on Tuesday.

Mark Wilson's Evansville Courier & Press story dated Oct. 5th began:

A Gibson county attorney sentenced to home detention and probation after pleading guilty to possessing child pornography and obstructing justice may be required to register as a sex offender after all.

William Wallace III was not required to register as part of the plea agreement accepted Tuesday by Gibson Superior Court Judge Earl Penrod.

Court officials have requested special prosecutor Jonathan Parkhurst and Wallace’s attorney, Scott Danks, return to court today to revisit the sentence.

Danks said Wednesday the agreement also may have erred in allowing for Wallace’s Class D felony conviction of possessing child pornography to be recorded as a Class A misdemeanor after a successful completion of the sentence.

Last vening Andrea Howe of the Princeton Daily Clarion reported in a long story that begins:
PRINCETON — Princeton attorney William R. Wallace III Thursday declined to withdraw his guilty plea in a criminal case, but his attorney objected to the sentence being corrected to prevent him from petitioning to have a felony child pornography possession conviction reduced to a misdemeanor offense.

After learning that terms of a plea deal accepted in GIbson Superior Court Tuesday contained a provision that is contrary to state statute for that offense, Judge Earl Penrod brought Wallace, his attorney Scott Danks of Evansville, and special prosecutor Jonathan Parkhurst back to the courtroom Thursday.

The correction in the sentence doesn’t affect his right to petition to have a felony conviction of obstruction of justice reduced to a misdemeanor offense if he successfully completes his sentence, and the change doesn’t affect the 90-day home detention and 458-day probation ordered to be served concurrently for both convictions.

“It was my mistake,” Parkhurst acknowledged, telling the judge that he researched the statute, but reviewed the original law, which has since changed to prohibit reducing a child porn possession conviction to a misdemeanor.

Penrod said Thursday that, prior to imposing the sentence Tuesday, he had reservations about whether he should allow Wallace the right to petition for that charge to be reduced. “I was wondering whether I should do something instead of whether I could,” he said.

The child porn possession conviction also requires Wallace to register as a sex offender and abide by probation rules for that offense.

Penrod said the sentence he imposed Tuesday didn’t address whether Wallace would be required to register as a sex offender.

But Parkhurst said that he discussed with Danks during plea agreement negotiations that he believed Wallace wouldn’t be required to register.

Danks said he was assured that Wallace wouldn’t be required to register, and while it wasn’t a part of the sentence, it could have had some impact on his client’s willingness to plead to the charges.

Danks acknowledged that he relied upon the prosecution’s information and didn’t research the requirement, but objected to changing the sentence.

The judge offered Wallace the option to withdraw his guilty plea and put the case back on the trial docket, but Wallace opted to stick with the plea deal, objecting to any changes.

The objection, noted the judge, could offer Wallace a basis for appealing the sentence if he chose to seek post-conviction relief.

The judge said if Wallace didn’t withdraw his guilty plea, “I have to cure the erroneous sentence,” and he struck the portion of the sentence referring to reducing the child porn possession conviction to a misdemeanor.

Mark Wilson of the C&P reports:
A Gibson County judge on Thursday offered attorney William Wallace III a chance to withdraw his guilty plea after learning that parts of the approved plea agreement didn't comply with state law.

"He was given the chance to go to trial and he chose not to," said Jonathan Parkhurst, special prosecutor in the case. * * *

Gibson Superior Court Judge Earl Penrod called the attorneys in the case back to court Thursday. Penrod told them the agreement was in error by allowing for Wallace's Class D felony conviction of possessing child pornography to be recorded as a Class A misdemeanor after a successful completion of his sentence, Parkhurst said.

Indiana Code excepts felony domestic battery and possession of child pornography convictions from being reduced to misdemeanors in that way.

Wallace's attorney, Scott Danks, said he objected to the change in the sentence and noted that the agreement included Wallace not being required to register as sex offender.

But Parkhurst said the judge also put on the record that while there were discussion about whether Wallace would register as a sex offender, that it was never part of the actual agreement or sentence.

In fact, Parkhurst said, state law does require it.

Danks said he will appeal the sentence, based in part on the legal argument that a judge's final decision cannot be changed or modified without consent of those involved.

As part of the original plea agreement, Wallace also agreed to plead guilty to voyeurism, a class D felony, pending the outcome of his appeal to the Indiana Court of Appeals to determine whether the investigation's facts support the charge.

Posted by Marcia Oddi on Friday, October 07, 2011
Posted to Ind. Trial Ct. Decisions

Thursday, October 06, 2011

Ind. Decisions - More on Tippecanoe injunction puts names back on local ballots

Updating this ILB entry from earlier today, here is a copy of Tippecanoe Circuit Judge Donald L. Daniel's 2-page order enjoining the County Clerk from omitting the plaintiffs', Tony M. Roswarski and Judith C. Rhodes, names from the ballot for the office of City of Lafayette, Mayor and City of West Lafayette, Clerk-Treasurer, respectively, together with the nineteen other uncontested candidates for election.

In addition, Douglas J. Masson, Attorney for Clerk, Christa Coffey, has sent along the 17-page (plus exhibits) Memorandum of Law in Opposition to the Application for Preliminary Injunction, filed on behalf of the Clerk. Doug notes: "The relevant portion of the legislative drafting manual was attached as Exhibit C." He adds, in response to my request for other documents:

The AG did not submit a brief (I think they were content to join in with mine). The petitioners submitted a brief, but I'm afraid my only copy is all marked up with my notes in the margin. Of particular interest in their brief, I thought, were two citations:

IC 36-4-5-2(a) "A mayor, who is the city executive, shall be elected under IC 3-10-6 by the voters of each city." and IC 3-8-7-25 stating "The election division and each county election board shall have printed on the respective genera, special, or municipal election ballots the names of the following candidates: [lists various types of nominees.]

ILB: Re "the AG did not submit a brief" was perhaps a clue to this later announcement via the AP: "State won't fight uncontested races on ballots."

Posted by Marcia Oddi on Thursday, October 06, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Still more on David Camm's oral argument Tuesday before the COA

Updating this ILB entry from yesterday, here are the video reports from two stations that give a brief taste of the give and take:

Posted by Marcia Oddi on Thursday, October 06, 2011
Posted to Indiana Courts

Ind. Law - "Indiana attorney helps open floodgates of campaign spending"

Here is a slew of earlier ILB entries mentioning Terre Haute attorney Jim Bopp. Yesterday the Indianapolis Star had a long, front-page story on Mr. Bopp, written not by a local reporter, but by Jonathan D. Salant of Bloomberg.

Posted by Marcia Oddi on Thursday, October 06, 2011
Posted to Indiana Law

Ind. Decisions - Disciplinary order of interest

What happens if you are suspended by the Supreme Court for nonpayment of dues or CLE noncompliance and thereafter enter a court appearance on behalf of a client? See In the Matter of John L. Peak, filed Sept. 30, 2011, where Respondent is fined $500 for the appearance.

Posted by Marcia Oddi on Thursday, October 06, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Supreme Court accepts certified question from SD Ind.

The case is Loparex, LLC v. MPI Release Technologies, LLC, et al. The questions, as framed by the district court, are:

1. Is Wabash Railroad Co. v. Young, 69 N.E. 1003 (Ind. 1904), still good law, such that individuals who voluntarily leave employment are precluded from pursuing a claim under Indiana Code section 22-5-3-2?
2. In an action brought under Indiana Code section 22-5-3-2, are attorney fees incurred in defending an unsuccessful claim against a former employee or in prosecuting a claim by a former employee recoverable as compensatory damages?
3. Is an unsuccessful suit to protect alleged trade secrets, within which a former employer seeks to preclude any competitive employment of a former employee by pursuing permanent injunctive relief and in settlement negotiations, a basis for recovery under Indiana Code section 22-5-3-2?

Posted by Marcia Oddi on Thursday, October 06, 2011
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In In Re Petition in Opposition to Annexation Ordinance F-2008-15 v. The City of Evansville , a 17-page opinion, Judge Bradford writes:

Appellants-Petitioners (hereinafter “Remonstrators”) appeal the trial court's order denying their motion to correct error and dismissing their challenge to the proposed annexation of certain parcels of land by Appellee-Respondent the City of Evansville (“the City”). We affirm.
In Andrew Kesling v. Dorothy Kesling, Adam Kesling and Emily Kesling , an 8-page opinion, Judge Bailey writes:
Andrew Kesling (“Husband”) appeals a judgment approving an arbitrator’s award that required him to make a shareholder distribution from funds of a closely-held corporation as requested by Emily Kesling and Adam Kesling (collectively, “Siblings”) after Siblings intervened in the dissolution of Husband’s marriage to Dorothy Kesling (“Wife”). We reverse.

Husband raises three issues for review, one of which we find dispositive: whether the Arbitrator exceeded her authority.

In Catherine A. Littleton v. State of Indiana, a 19-page opinion, Judge Bailey writes:
Catherine A. Littleton was charged with one count each of Criminal Confinement, as a Class C felony, Neglect of a Dependent, as a Class D felony, and Battery, as a Class B misdemeanor. In this discretionary interlocutory appeal, Littleton challenges the trial court's denial of her motion to dismiss the charging information on two grounds. Littleton contends that the trial court abused its discretion when it declined to dismiss the charges against her because her acts were privileged by her qualified immunity as a teacher in loco parentis. She also argues that, in light of the trial court's holding that her Fifth Amendment right against self-incrimination was violated under Garrity v. New Jersey, 385 U.S. 493 (1967), dismissal of the charges was required under the rule announced in Kastigar v. United States, 406 U.S. 441 (1972).

The State contends that we do not have jurisdiction to consider Littleton's qualified immunity argument, that in any event the trial court properly declined to dismiss the charges against her, but that the trial court nonetheless abused its discretion when it concluded that Littleton's Fifth Amendment rights were violated.

Finding that we have jurisdiction to consider the question of qualified immunity, and finding that issue dispositive, we reverse the decision of the trial court and remand for dismissal of the charges.

NFP civil opinions today (2):

Adam L. Shull v. Mari E. Shull (NFP)

In Re the Paternity of R.T.; A.G., et al. v. C.T. (NFP)

NFP criminal opinions today (1):

Anthony J. Sims v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 06, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Putnam County Sheriff v. Pamela Price, an 8-page opinion with two justices concurring in the result via a separate opinion, Justice Rucker writes:

At issue in this case is whether a County Sheriff Department that neither owns, maintains, nor controls a county road nonetheless owes a common law duty to warn the public of known hazardous conditions upon the roadway. We conclude it does not. * * *

On the morning of November 27, 2007, at approximately 7:15 a.m., Pamela Price was driving northbound on County Road 375 West in Putnam County, Indiana. When Price reached a point approximately adjacent to 5852 County Road 375 West, she encountered ice across the roadway. Price lost control of her vehicle which overturned resulting in personal injury and property damage. Earlier that morning, at approximately 5:30 a.m., a different driver lost control of his vehicle at the same location. A deputy of the Putnam County Sheriff Department arrived on the scene at this earlier accident, contacted the Putnam County Highway Department, advised it of the icy condition, and then left the area. Neither Department took any steps to alleviate the icy condition of the roadway or warn the public of the potential hazard. * * *

In its motion to dismiss the complaint Sheriff argued (a) it owed no duty to alleviate or warn motorists of a condition on a county road; and (b) even if it owed such a duty, Sheriff is immune from liability under both Indiana statutory and common law. According to Sheriff its common law immunity arises because the rendering of services – or failing to do so – at an accident scene is “closely akin” to preventing crime, a common law immunity this Court recognized in Benton v. City of Oakland City, 721 N.E.2d 224, 230 (Ind. 1999). Sheriff also posits that its statutory immunity rests on Indiana Code section 34-13-3-3(3) of the Indiana Tort Claims Act (ITCA), which shields a governmental entity from liability for a loss resulting from “[t]he temporary condition of a public thoroughfare or extreme sport area that results from weather.” Ind. Code § 34-13-3-3(3) (emphasis added). The ITCA “allows suits against governmental entities for torts committed by their employees but grants immunity under the specific circumstances enumerated in Indiana Code section 34-13-3-3.” Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 975 (Ind. 2001). Affirming the trial court’s denial of Sheriff’s motion to dismiss, the Court of Appeals rejected Sheriff’s immunity claims, and also concluded Sheriff had “a common law duty to warn the public of a known hazardous condition.” Price, 930 N.E.2d at 673. * * *

In this case Price’s complaint does not allege that Sheriff owned, operated, maintained, or controlled any portion of County Road 375 West in Putnam County, Indiana. And neither could the complaint reasonably do so. The legislature has specifically charged the county supervisor with the supervision over the maintenance and repair of highways within the county. * * * Absent ownership, maintenance, or control of the county roadway, Sheriff had no duty to warn of a hazardous condition. Instead that obligation rested elsewhere. Because there was no duty, Sheriff was not negligent as a matter of law. * * * Accordingly there were no facts alleged in Price’s complaint under which Price would be entitled to relief as against Sheriff. The trial court thus erred in denying Sheriff’s motion to dismiss under Indiana Trial Rule 12(B)(6).

We reverse the judgment of the trial court and remand this cause with instructions to grant Sheriff’s motion.

Shepard, C.J., and Sullivan, J., concur.
David, J., concurs in result with separate opinion in which Dickson, J., joins. [J. David's opinion begins] I concur in the result reached by the majority. However, I am concerned that the language, “[a]bsent ownership, maintenance, or control of the county roadway, Sheriff had no duty to warn of a hazardous condition,” may be interpreted too broadly.

Posted by Marcia Oddi on Thursday, October 06, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Still more on "Gibson attorney pleads guilty to pornography, obstructing justice charges"

Updating yesterday's ILB entry, Andrea Howe of the Princeton Daily Clarion reports this morning in a story that begins:

PRINCETON — Princeton attorney William R. Wallace III comes back to court Thursday afternoon for a review of the plea deal sentencing provisions imposed Tuesday on a conviction of possession of child pornography.

Gibson Superior Court’s records of the case were updated Wednesday with a notation that Judge Earl Penrod had received information that the sentence imposed Tuesday might not comply with statutory requirements.

The judge contacted defense and prosecution attorneys and scheduled Thursday’s 2 p.m. hearing.

Posted by Marcia Oddi on Thursday, October 06, 2011
Posted to Ind. Trial Ct. Decisions

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

Updating this ILB entry from Sept. 28th, which is definitely worth rereading, IMHO, and this one from Sept. 25th, which reported that "Lafayette Mayor Tony Roswarski filed a lawsuit Friday morning in an attempt to force the county to put unopposed municipal candidates onto the ballot." and also tallied the reported positions, today Sophia Voravong has this long story in the Lafayette Journal Courier, headlined "Ruling puts names back on local ballots." Some quotes:

Lafayette resident Michael L. Smith will get to vote for the city's next mayor in November's municipal election, even though Democratic incumbent Tony Roswarski's name will be the only one on the ballot.

So, too, can Lafayette resident Tracy Walder "decide" who will represent her for City Council District 3, although Democratic incumbent Perry Brown also is unopposed.

That's because Judge Don Daniel of Tippecanoe Circuit Court on Wednesday granted a preliminary injunction overriding a new law that said names of unopposed municipal candidates may not be placed on ballots. * * *

One argument hinged on the wording of the law, which states "an election may not be held for a municipal office if there is only one nominee for the office."

[Gregg Theobald, who represented several of the plaintiffs,] argued that "may not" is weaker terminology than "shall not." An existing state law that reads "the mayor shall be elected" trumps the "may not" of the new legislation, he said.

[Deputy attorney general Betsy Isenberg], however, said the two terms are nearly equal.

Posted by Marcia Oddi on Thursday, October 06, 2011
Posted to Indiana Law

Environment - Still more on "Peppermint farmers from LaPorte, Starke and Pulaski counties just want to be left alone to grow mint and distill its oil"

As reported near the end of this Sept. 5, 2011 ILB entry:

USEPA brought criminal charges against the farmer who allegedly discharged "scalding water" into the ditch --- Materna Mint Farms entered a guilty plea on June 7, 2011 - details here. Sentencing has now been reset to 10/5/2011 2:00 PM in US District Court - South Bend before Judge Jon E DeGuilio. [3:11-cr-00069-JD -CAN United States of America v. Materna]
Today the South Bend Tribune has this report from Kristin Bien, that begins:
The story shocked many -- A Starke County man claimed his dog was scalded to death in a stream that was illegally filled with hot water. Now the man responsible for dumping the water into that stream has been sentenced to two years of probation, eight months home detention and fined $20,000.

Michael Materna, 56, of Hamlet was operating a mint still, which distills mint leaves to create mint oil. He pleaded guilty in June to knowingly discharging pollutants without a permit, in violation of the Clean Water Act.

Sentencing took place Wednesday night.

Posted by Marcia Oddi on Thursday, October 06, 2011
Posted to Environment

Wednesday, October 05, 2011

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

For publication opinions today (3):

P.J. v. State of Indiana

David Robinson v. State of Indiana

State of Indiana v. Gordon V. Vankirk

NFP civil opinions today (4):

In Re: The Marriage of Dorothy Borgan v. Terry R. Borgan, Sr. (NFP)

Term. of Parent-Child of T.S.; A.R. v. Indiana Dept. of Child Services (NFP)

In Re: The Unsupervised Administration of the Estate of Ozella T. Schlosser (NFP)

Christopher West v. Eileen Mary Flaherty (NFP)

NFP criminal opinions today (7):

Jyshawn D. Moore v. State of Indiana (NFP)

Delbert R. Majors v. State of Indiana (NFP)

Daniel J. Hollen v. State of Indiana (NFP)

Myia Relphorde v. State of Indiana (NFP)

Raymond Cox, Jr. v. State of Indiana (NFP)

Howard Steele v. State of Indiana (NFP)

Frederick Hampton v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 05, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: COA oral argument in David Camm interlocutory appeal

Updating this ILB entry from yesterday, Oct. 4th, Harold J. Adams of the Louisville Courier-Journal has this report today - some quotes:

VINCENNES, Ind. — The attorney for David Camm argued before the Indiana Court of Appeals on Tuesday that the prosecutor should be disqualified from the former state trooper’s third murder trial because of a now-voided book deal.

“Once you cross that line into actually taking a step so far away from your role of a prosecutor as trying to profit off of a case, it has undermined the public trust in your independent judgment,” Stacy Uliana told a three-judge panel in Vincennes University’s Shircliff Auditorium.

Keith Henderson signed the book deal in 2009, just days before the Indiana Supreme Court overturned Camm’s second conviction in the September 2000 shooting deaths of his wife Kimberly and their two children at their Georgetown home.

Both convictions were overturned on rulings that prosecutors used evidence or arguments that should not have been allowed. In January special judge Jonathan Dartt denied Camm’s request that a special prosecutor be appointed to replace Henderson.

On Tuesday, Uliana faced skeptical questioning from Judge John Baker, who asked, “So there is no contract?”

“At this point no,” answered Uliana, who has said the fact that the book deal was voided doesn’t mean the conflict no longer exists.

Read the rest of the long LCJ story for a good account of the questioning. Also see this story by Matt Thacker of the New Albany News & Tribune. A sample:
As is usual with Court of Appeals oral arguments, the judges engaged in intense questioning of the attorneys. Judge John G. Baker especially debated with Uliana, stopping her several times when she said Henderson has a book contract. He made the point that the contract is no longer in place.

Uliana argued that Henderson still plans to write the book even though there is no contract now, and she pointed to emails between him and the publisher that the story would be worth more money now that there will be a third trial.

She said the emails indicated the co-writer, or ghostwriter, was about a week away from finishing the manuscript, and although Henderson had not seen the copy, he was involved in writing it.

Baker pressed Uliana about whether anyone who ever agreed to write a book about a case would be precluded from prosecuting that case.

She said agreeing to a book contract creates an “irrevocable conflict.”

Uliana further claimed Henderson lied when he said he had a clause that would cancel the book contract if the conviction was overturned. She said the publisher indicated there was never a discussion about the verdict being reversed.

She used the analogy of not being able to unring a bell.

“There is nothing to show he even tried to unring the bell,” she said. * * *

[Deputy Attorney General Joby Jerrells] conceded on several points, even agreeing with the defense that trial court Judge Jonathan Dartt used the wrong standard when determining whether there was a conflict. Dartt determined there was no actual harm, while the defense maintained that was impossible since the case is still pretrial.

When asked whether it was premature of Henderson to write the book with the appeals not exhausted, Jerrells said, “perhaps it was.” He also said he believed it would be a conflict if the book deal still existed now.

Jerrells admitted this is a strange case and there are not many similar cases to look at in the literature, but he believes there is no conflict. He also argued that using the Rules of Processional Conduct to remove a prosecutor is not allowed.

“David Camm cannot choose his prosecutor,” Jerrells said. “That is a right reserved for the people of Floyd County.”

The issue of the book deal is one not likely to go away soon. Uliana said she would likely appeal to the Indiana Supreme Court if she loses the case, an option available to both sides. If the Supreme Court agreed to hear the arguments, that could take more than a year, Uliana said.

Posted by Marcia Oddi on Wednesday, October 05, 2011
Posted to Indiana Courts

Ind. Courts - More on "Gibson attorney pleads guilty to pornography, obstructing justice charges"

Updating this ILB entry from Sept. 4th, Mark Wilson of the Evansville Courier & Press reports today:

PRINCETON, Ind. — Attorney and former candidate for Gibson County prosecutor William Wallace III was sentenced Tuesday on felony charges of obstructing justice and possessing child pornography.

Indiana law does not require Wallace register as sex offender, special prosecutor Jonathan Parkhurst said.

Wallace pleaded guilty to the charges last month. Parkhurst agreed to drop misdemeanor charges of patronizing a prostitute and false informing, and to convert the felony convictions to misdemeanors if he successfully finishes his sentence.

Gibson Superior Court Judge Earl Penrod accepted the plea agreement Tuesday despite some reluctance about converting the charges to misdemeanors. * * *

A fifth charge, voyeurism, a class D felony, is pending. It is the charge most closely associated with the circumstances that began the investigation in March 2010. The Indiana Court of Appeals has agreed to review whether the investigation's facts support the charge and Wallace agreed to plead guilty if the court rules in favor of the prosecutor.

Wallace, 58, was indicted in June 2010 shortly after a former client of Wallace claimed the attorney videotaped sexual encounters she had with him without her knowledge. She said he suggested that he would forgive legal fees she owed him in exchange for sex. The woman reported that she only learned about the recordings after Wallace allegedly showed them to her boyfriend.

During an April 19, 2010, search of Wallace's house in Princeton, he tried to flee from the house to his garage with various DVDs and an external computer hard drive in his pants. A search of Wallace's computers uncovered child pornography. Police also found recordings of Wallace and the woman having sex.

Wallace's attorney, Scott Danks, said in court Tuesday that police found a single image of an underage female engaged in a sexual act and that there was no evidence Wallace knew it was on his computer or had viewed it.

He also said he believed Wallace's obstruction of justice was a panicked response to the sudden search of his home.

Posted by Marcia Oddi on Wednesday, October 05, 2011
Posted to Indiana Courts

Tuesday, October 04, 2011

Ind. Courts - "A new clock tower was lifted into place atop the Randolph county courthouse on Monday"

Great photos of the clock tower being lifted in place accompany this comprehensive story today in the Muncie Star-Press, reported by Jeff Ward.

For additional background, start with this ILB entry from Oct. 1.

Posted by Marcia Oddi on Tuesday, October 04, 2011
Posted to Indiana Courts

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

For publication opinions today (1):

In Saba Tesfamariam v. Moghes Woldenhaimanot , a 9-page opinion, Judge Riley writes:

Appellant-Respondent, Saba Tesfamariam (Mother), appeals the trial court’s Decree of Dissolution of Marriage, in which the trial court awarded Appellee-Petitioner, Moghes Woldehaimanot (Father), full custody of their minor children. We affirm. * * *

[I]ssue: Whether the trial court abused its discretion in failing to ensure that the courtroom interpreter was properly qualified and in failing to administer the required oath to the interpreter. * * *

Mother’s primary contention is that the trial court denied her due process because it failed to administer an oath to her interpreter or to ensure that her interpreter was properly qualified as an expert. This court has previously addressed the question of whether a trial court must administer an oath to an interpreter or establish an interpreter’s qualifications in cases concerning criminal defendants; however, we have never addressed the question of whether a trial court must take the same steps in a civil action. Based on a review of our case law, we find that many of the due process concerns relevant in a criminal trial are relevant to the case at hand. * * *

The issue in this case, though, is not whether the trial court failed to provide an interpreter, but whether the trial court effectively denied Mother an interpreter by failing to follow the procedural requirements to establish that her interpreter was qualified. * * *

Here, we conclude that the trial court abused its discretion by failing to establish that Mother’s interpreter was qualified and by failing to administer an oath to her interpreter to provide an accurate translation. As the case law above illustrates, both of these actions are necessary in order to protect a party’s Due Process rights. Also, because the Due Process implications in this case are substantial, we find that it is appropriate to require the same procedural safeguards here as in criminal cases. It is apparent from the record that the trial court asked Mother whether or not she could hear the interpreter, but did not otherwise address the interpreter’s qualifications or administer an oath. Therefore, we determine that the trial court abused its discretion. * * *

Based on the foregoing, we conclude that the trial court abused its discretion when it failed to administer an oath to Mother’s interpreter and failed to establish that the interpreter was qualified; we also find, though, that Mother waived her objections by failing to raise them at trial.

NFP civil opinions today (1):

In the Matter of the Unsupervised Estate of Luther Penick; Keith Penick v. Shawn Penick (NFP)

NFP criminal opinions today (2):

Brian Parker v. State of Indiana (NFP)

Todd A. Bebout v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 04, 2011
Posted to Ind. App.Ct. Decisions

Courts - Justice Stevens' Memoir

How Appealing today collects links to articles on Justice Stevens' memoir. From Adam Liptak's story today in the NY Times:

In time for the start of a new term on Monday, Justice Stevens has just published an engaging and candid memoir. It is called “Five Chiefs,” for the five chief justices he has known — as a law clerk, lawyer, judge and justice. Perhaps its most surprising element is the high praise Justice Stevens has for Chief Justice John G. Roberts Jr., who was often his ideological adversary in the five terms the two men served together.

Posted by Marcia Oddi on Tuesday, October 04, 2011
Posted to Courts in general

Law - "How to Start Your Own Appellate Practice"

ABA Journal Podcast moderator Stephanie Francis Ward talks with two lawyers about how and why they built their own appellate practices. There is also a transcript.

Posted by Marcia Oddi on Tuesday, October 04, 2011
Posted to General Law Related

Law - More on: Are law firm email disclaimers legally binding?

Supplementing this ILB entry from August 27th, Orin Kerr of the Volokh Conspiracy writes that if you use a disclaimer that "This email (including the attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510–2521," then:

If you’re a lawyer and the statement at the end of your e-mail has that line quoted above, please do yourself a favor and remove it. Including that line only shows that you have no idea what the Electronic Communications Privacy Act does, and that you are comfortable repeatedly invoking a law even though you have no idea what is in it. That’s a pretty lousy image to present for your legal practice.

Posted by Marcia Oddi on Tuesday, October 04, 2011
Posted to General Law Related

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

Updating this ILB entry from Sept. 30th, quoting a story by Heather Gillers and Tim Evans in the Indianapolis Star, an editorial in today's Star is headed "Clean-up time for a messy state immigration law." It begins:

Among the many objections that were raised to Indiana's sweeping new immigration law was the prospect of costly, protracted and risky litigation.

The warning, sounded by the state's own attorney general among others, came to fruition quickly with a lawsuit by the ACLU, which resulted in two provisions of the law being blocked by a federal judge pending a trial.

Now, Washington has weighed in, saying it may add Indiana to the list of states it has sued or is considering suing over immigration statutes.

Posted by Marcia Oddi on Tuesday, October 04, 2011
Posted to Courts in general

Ind. Gov't. - "Preservation advocates push Indiana tax cut's expansion"

Lesley Stedman Weidenbener, now of the Franklin College Statehouse Bureau, has a long story today picked up by the Louisville Courier Journal that begins:

INDIANAPOLIS — Advocates of historic preservation are pushing state lawmakers to expand a tax credit they say will create economic development and help boost restoration of Indiana’s downtowns.

Currently, the Indiana Historic Preservation Tax Credit is ineffective, said Marsh Davis, president of Indiana Landmarks, a nonprofit group that works to protect historically significant properties.

That’s because the cap on the amount of credits issued annually is so low that developers and investors must now wait more than a decade to reap its rewards, he said. That means the credit fails to act as an incentive for projects that need just a small boost to become reality, Davis said.

“We don’t support it. We don’t promote it to people,” Davis told the legislature’s Commission on State Tax and Financing Policy during a meeting Monday at the Statehouse. “Who really wants to wait until 2023 to get a credit? As a preservation tool, it would be the first thing we’d be out championing, but we can’t do that right now because of this decades-plus backlog.”

Lawmakers, though, said that while the tax credit is a worthy program, any expansion would cost the state money at a time when the budget is already tight.

Posted by Marcia Oddi on Tuesday, October 04, 2011
Posted to Indiana Government

Ind. Courts - More on: COA oral argument in David Camm interlocutory appeal on Tuesday, Oct. 4th

Today is the oral argument before a COA panel on the most recent David Camm appeal. As noted before, the COA elected to conduct this argument at the Shircliff Theatre at Vincennes University and hence it will not be webcast. However, the ILB has obtained copies of the briefs.

Janelle MacDonald of WAVE 3 Louisville had this story last evening, headed "Appeals court hearing Tuesday in David Camm case," and Marissa Alter of WLKY Louisville has this story, both of which sum up the current status of the case. Calling the case "almost as legendary for its twists and turns as for the tragedy of the three murders," the WAVE report continues:

Two juries have convicted Camm, but two times appeals courts have overturned the guilty verdict. Now the appeals court will step in again to answer this question: does a book deal signed by the prosecutor after the most recent guilty verdict mean he can't prosecute Camm for his third trial?

Posted by Marcia Oddi on Tuesday, October 04, 2011
Posted to Indiana Courts

Monday, October 03, 2011

Ind. Decisions - Transfer list for week ending September 30, 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 30, 2011. It is three pages (and 32 cases) long.

No transfers were granted last week. One case, Enhanced Network Solutions, Inc. v. Hypersonic Technologies, was dismissed.

Posted by Marcia Oddi on Monday, October 03, 2011
Posted to Indiana Transfer Lists

Ind. Gov't. - "Indictment puts Philpot's future in jeopardy"

Bill Dolan of the NWI Times reported Oct. 2 in a story - some quotes:

CROWN POINT | Lake County Coroner Thomas Philpot's fight to clear his name of federal fraud and theft charges may be worth the effort.

The 54-year-old Highland resident could be barred from the professions that have sustained his prominent career over more than three decades if the U.S. attorney's office can prove to a jury he boosted his salary as county clerk between 2004 and 2009 with $24,702 in federal funds to which he wasn't entitled.

Philpot pleaded not guilty last week to a five-count indictment. No trial date has been scheduled.

The still unproven allegations don't prevent him from practicing law in Indiana as he has done since 2001. Nor could they stop him from resuming his medical practice, although Philpot hasn't been a licensed podiatrist in a decade.

Philpot's defense lawyer, Leonard Goodman, of Chicago, said last week Philpot had no intent to defraud the government because he was relying on the opinion of his county government-appointed attorney, who said keeping the money was legal.

Assistant U.S. Attorney Philip Benson, who will prosecute the case, was able to overcome a similar "advice-of-counsel" defense employed two years ago by attorneys for former Calumet Township Trustee Dozier Allen and two of his employees, who were convicted of federal charges they illegally pocketed federal funds earmarked for his public office for work they didn't perform.

Philpot's demand for a trial ensures he can remain as county coroner while awaiting trial, according to A.J. Feeney-Ruiz, a spokesman for the Indiana secretary of state's office, which oversees election law.

The story goes on to look at how a conviction for a felony, as opposed to a misdemeanor, could impact Philpot's electoral, legal, and medical careers.

Posted by Marcia Oddi on Monday, October 03, 2011
Posted to Indiana Government

Courts - "Open Up High Court to Cameras"

Kenneth W. Starr, the president of Baylor University, and formerly a federal appellate judge, solicitor general and independent counsel, argues today in a NY Times op-ed for the televising of SCOTUS oral arguments. Some quotes:

To hear oral arguments and the handing down of decisions, citizens and countless school groups line up outside the Supreme Court building, completed in 1935, for a chance to experience the court in action for two fleeting hours. Crowds camp out all night for high-profile cases. Many who stand in these lines and endure all-night waits will be disappointed: space in the magnificent courtroom is very tight.

In a typical session, during which two cases are argued, there are just 250 seats available, many of which are set aside for special guests. Seating is so limited that a separate line forms for those willing to sit for just three minutes, during which the spectators can experience a sternly monitored glimpse into the sanctum before they are hurried along to make room for others. Most Americans, including those who live far from Washington, or who are unwilling or unable to travel to the court building, never try.

“Equal justice under law” is the inscription on the face of the court building. It is time that we the people had equal access to the process by which that justice is meted out.

Posted by Marcia Oddi on Monday, October 03, 2011
Posted to Courts in general

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

In Purcell v. Bank of America, an 8-page opinion, Chief Judge Easterbrook begins:

According to a complaint filed in state court, Bank of America told credit agencies that Kristine Purcell is behind in payments on a loan, even though the Bank knows that she isn’t. If Purcell’s allegations are correct, then the Bank has violated the Fair Credit Reporting Act, 15 U.S.C. §1681s–2(a), and perhaps state law too. The Bank removed the suit to federal court and moved for judgment in its favor— because, although Purcell’s claim arises under §1681s–2(a), that section does not create a private right of action. See Perry v. First National Bank, 459 F.3d 816 (7th Cir. 2006). Section 1681s–2(c)(1) provides that the portions of the Act allowing awards of damages to private parties do not apply to claims under subsection (a). That leaves enforcement in the hands of state and federal agencies under §1681s and §1681s–2(d). The district court accordingly dismissed Purcell’s federal claim. 2010 U.S. Dist. LEXIS 126704 (N.D. Ind. Nov. 30, 2010).

Posted by Marcia Oddi on Monday, October 03, 2011
Posted to Ind. (7th Cir.) Decisions

Stage Collapse - "Chicago woman's lawsuit over her partner's death at the Indiana State Fairgrounds could have widespread implications for same-sex couples across the nation, legal experts say"

Updating these ILB entries from Sept. 27th and Sept. 28th, Andy Grimm of the Chicago Tribune has a long story today headed "Indiana lawsuit may have implications for same-sex couples." Some quotes:

Brennon has filed three lawsuits seeking damages for the death of her partner. The suits could force courts to decide whether civil unions in one state have legal standing in another.

Indiana does not allow civil unions and does not recognize same-sex unions from other states. But Indiana Atty. Gen. Greg Zoeller said he would not make civil unions an issue.

The state "will seek dismissal of the entire case, but not on the basis of a civil union," Zoeller said in an email.

"We generally believe it will be 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," Zoeller said. * * *

Donald Gjerdingen, a professor at Indiana University Law School, said Brennon's three lawsuits were certain to develop from routine wrongful-death cases into civil rights battles.

"There are just so many ways this issue could be raised," Gjerdingen said. "As a case, it is just a perfect example of the issues that come up because of the patchwork of laws that we have and the federal Defense of Marriage Act that took effect in the 1990s."

Under federal law, marriage is defined as between one man and one woman. States can permit marriage or civil unions for same-sex couples, but the federal law also says no state is required to recognize civil unions from another state, Gjerdingen said.

The situation mirrors the laws that governed interracial marriage in the pre-civil rights era, or varying rules on marriage age or incest, [Andrew Koppelman, a professor of family law at Northwestern University Law School] said. In the 1940s, miscegenation laws made it a legal question whether an interracial couple who married in Illinois was considered married in Mississippi, or if a man who married his cousin in one state had committed incest in another.

Posted by Marcia Oddi on Monday, October 03, 2011
Posted to Stage Collapse

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

For publication opinions today (1):

In Michael Freed v. State of Indiana, an 11-page opinion, Judge Vaidik writes:

Michael Freed appeals his conviction for Class B felony robbery. Freed argues that the trial court erred by admitting evidence of his uncharged misconduct—specifically, an unrelated burglary, forgery, and solicitation for murder. We conclude that the evidence was properly admitted for the non-character purpose of corroborating Freed’s confession to the instant robbery. We further conclude that the record evidence is sufficient to sustain Freed’s conviction. We affirm.
NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, October 03, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Amazon, the retail Goliath retreats (in California)"

A long editorial today in the Fort Wayne Journal Gazette on the internet sales tax collection issue. It begins:

With economic clout worthy of its name, Amazon.com is a formidable presence at the negotiating table. But the state of California proved as formidable when it passed legislation forcing the online retailer to collect sales taxes on merchandise ordered by its residents. Amazon’s eventual surrender should embolden federal lawmakers and the Indiana General Assembly to even the retail playing field.

Posted by Marcia Oddi on Monday, October 03, 2011
Posted to Indiana Government

Ind. Gov't. - "With mandate money, county expects to stay solvent"

From the Jeffersonville News & Tribune, Braden Lammers reported Sept. 30th:

At Thursday’s Clark County Commissioners meeting, Attorney Greg Fifer said the county is expected to receive bond funding for a mandate in about two weeks and the money should cover expenses until the December property tax settlement is received.

“As long as all departments do not overspend their reduced appropriations by the council, with monies coming in, we will end the year in the black,” said Clark County Auditor R. Monty Snelling.

Fifer said the first in a series of two bonds — both related to mandates — was sold Thursday and the county received an interest rate of 0.9 percent.

The two bonds being sought include Clark County Superior Court No. 2 Judge Jerry Jacobi’s mandate from 2010, the Clark County Courts’ mandate from this year and the Clark County Sheriff’s Department mandate. The sheriff’s department bond and appropriation must still be approved by the Clark County Council, but the courts mandate has already been approved.

In addition, the commissioners approved resolution 8-2011 approving a mediation agreement with the sheriff.

The resolution, which was unanimously approved, was reduced from the initial amount agreed to at $2.2 million, down to $2 million.

Snelling, following the vote, asked to clarify to the audience why it was necessary that the commissioners approve the mediation agreement.

“They almost have to pass this because our office has a court order from the Circuit Court saying whatever bills the sheriff turns in, I’m court ordered to pay them,” he said. “Even if we don’t have the money in the account I have to pay them. If we don’t get this through at the end of the year the whole county’s going to be in trouble because the court said, ‘you pay the bills whether you have the money or not.’”

Snelling was referring to the decision of Clark County Circuit Court Judge Dan Moore that issued a preliminary injunction and the ordered mediation over the suit filed by the sheriff’s department.

The injunction forced the county council to continue to fund operations for the department and kept the commissioners from denying Sheriff Danny Rodden’s payroll or claims, as they previously threatened to do because the county was spending too far into a deficit.

For background, see this ILB entry from August 19th.

Posted by Marcia Oddi on Monday, October 03, 2011
Posted to Indiana Government

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

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

From Sunday, October 2, 2011:

From Saturday, October 1, 2011: From late Friday afternoon, September 30, 2011:

Posted by Marcia Oddi on Monday, October 03, 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 10/3/11):

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

Thursday, October 13th

Webcasts of Supreme Court oral arguments are available here.



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

Tuesday, October 4th

Wednesday, October 5th

Thursday, October 6th

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

Thursday, October 13th

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, October 03, 2011
Posted to Upcoming Oral Arguments

Sunday, October 02, 2011

Courts - Still more on: ChicagoTribune wins suit over U of Illinois clout list

Updating this ILB entry from July 14, 2011, see this story in yesterday's Chicago Tribune by Carla K. Johnson headed "Appeals court asks for briefs in U of I lawsuit." It begins:

Attorneys for the University of Illinois who are trying to protect information about students involved in a 2009 admissions scandal were hammered by federal appellate judges Friday about why the federal courts should be involved. * * *

Lawyers tried to focus on that issue during Friday's hearing before a three-judge panel of the U.S. Seventh Circuit Court of Appeals. But judges repeatedly interrupted with jurisdiction questions and ultimately gave the university and Tribune two weeks to file briefs addressing why the case shouldn't be handled in state court. Lawsuits have been filed in both state and federal court.

As Chief Judge Easterbrook and Judge Posner, as well as Judge Williams, were on the panel, the audio of the oral argument in Chicago Tribune Comp v. Board of Trustees (9/30/2011) might be worth a listen.

Posted by Marcia Oddi on Sunday, October 02, 2011
Posted to Courts in general

Ind. Gov't. - "A retirement policy that’s past its prime"

Recalling this ILB entry from Oct. 29, 2009, headed "Flagrant Age Discrimination at IU-Indy School of Law?" the Fort Wayne Journal Gazette today has a long opinion piece by Karen Francisco about Purdue's retirement policy. Some quotes:

The decision by Purdue University trustees to show Chancellor Michael Wartell the door after he has successfully led IPFW for the past 17 years draws attention to the university’s mandatory retirement policy and raises a new question: Have such policies outlived their usefulness? * * *

Andy Brantley, president and chief executive officer of the College and University Professional Association for Human Resources, confirmed that mandatory retirement policies for employees of any age, including top officials, have been eliminated at most higher education institutions.

But the policies persist at Purdue and at Indiana University, where a case similar to Wartell’s was settled in August. Annette Wyandotte, former dean of the IU-Southeast School of Arts and Letters at New Albany, filed a complaint with the U.S. Equal Employment Opportunity Commission in 2010 after the university refused to extend her appointment. * * *

At Ball State University, where no mandatory retirement policy is in place, trustees recently voted to extend President Jo Ann Gora’s contract for five years, and bolstered her salary by 10 percent – to $431,244 a year. She is 65.

Posted by Marcia Oddi on Sunday, October 02, 2011
Posted to Indiana Government

Ind. Courts - COA oral argument in David Camm interlocutory appeal on Tuesday, Oct. 4th

On Tuesday, October 4th at 11:00 AM, oral argument will be held before a panel of the Court of Appeals scheduled to consist of Judges Baker, Najam and Bailey, in the case of David R. Camm v. State of Indiana (87A01-1102-CR-25).

This is an interlocutory appeal from the trial court's denial of Appellant's petition for a special prosecutor. The argument will be held at Shircliff Theatre, Vincennes University and will not be webcast.

The ILB has obtained and is posting the briefs of the parties:

For background, see this Sept. 9th ILB entry.

Posted by Marcia Oddi on Sunday, October 02, 2011
Posted to Upcoming Oral Arguments

Saturday, October 01, 2011

Courts - "The Top 10 Supreme Court Previews"

From Andrew Cohen of The Atlantic. This is Part 3, the earlier parts are linked at the top of the article.

Posted by Marcia Oddi on Saturday, October 01, 2011
Posted to Courts in general

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

The good news is the clock survived the crash.

But the news yesterday was "Randolph County waiting on weather to place clock on courthouse." According to news reports this morning, the winds continue. Check out this story by Jim Ward in yesterday's Muncie Star-Press to see a photo of the clock and large enclosing structure.

As Jim Glass, director of the Division of Historic Preservation and Archaeology, Indiana Department of Natural Resources, writes in a column in today's Indianapolis Star about a report just completed by the Indiana Courthouse Preservation Advisory Commission:

Creation of the commission was an outgrowth of concern over the proposed demolition of the Randolph County Courthouse in 2005. Soon after, Indiana Landmarks formed a task force to draw attention to the importance of the majestic structures in most county seats. It also asked the legislature to establish a temporary panel to provide technical assistance to county officials and to make a report to the legislature.

The General Assembly charged the commission with studying the importance of preserving historic courthouses to the history, identity and economic revitalization of county seats and counties; the condition of such courthouses; the need for rehabilitation, restoration and maintenance of historic courthouses; the needs of county officials in planning for preservation; and available funding sources. To gather data for its report, the commission conducted a comprehensive study of the condition and future needs of the state's historic courthouses.

You may access the entire "Indiana's Historic Courthouses: Reinvesting in Community Treasures," at in.gov/legislative/igareports/agency/reports/CPAC01.pdf. Be forewarned, however, it weighs in at 91 MB. Another option is to go to the DNR webpage for the Courthouse Preservation Commission.

Posted by Marcia Oddi on Saturday, October 01, 2011
Posted to Indiana Courts