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Saturday, December 31, 2011

Ind. Decisions - "Supreme Court OKs police stop based only on tip"

The Supreme Court's decision Thursday in State of Indiana v. Amanda Renzulli (ILB summary here) is the subject of a story by Dan Carden in today's NWI Times. Some quotes:

A police officer can pull over a driver based on a concerned citizen's 911 tip, even if the officer never witnesses suspicious behavior, the Indiana Supreme Court ruled Thursday.

On April 23, 2009, Andrew Davies called 911 from his car in Plainfield, Ind., to report a possible drunken driver in a blue Volkswagen on the road ahead of him pulling into a gas station.

Officers arrived at the gas station 90 seconds after Davies' 911 call and pulled over a blue Volkswagen as the driver was beginning to back up. * * *

[The driver, Amanda Renzulli] asked the trial court to suppress the evidence obtained in the traffic stop because the officer had no independent reason to pull her over.

The court agreed, saying police did not witness any suspicious driving before making a stop, did not know whether Renzulli was driving the vehicle prior to its arrival at the gas station and did not notice whether any other blue Volkswagens were at the gas station. The Indiana Court of Appeals upheld that ruling, 2-1.

But in a 4-1 decision, written by Justice Steven David, the Supreme Court said the information provided by Davies gave officers enough reasonable suspicion to briefly detain Renzulli for investigative purposes.

Davies' willingness to give his name and telephone number to the 911 operator along with a vehicle description made his tip independently reliable, especially with officers stopping Renzulli almost immediately after Davies called, the court said.

Justice Robert Rucker, a Gary native, dissented from the court's ruling. Rucker said police should be required to independently corroborate a citizen's tip to establish reasonable suspicion for a stop.

Posted by Marcia Oddi on Saturday, December 31, 2011
Posted to Ind. Sup.Ct. Decisions

Friday, December 30, 2011

Ind. Gov't. - "Statehouse capacity of 3,000 would limit protests"

Alex Campbell's first take on this story in the Indianapolis Star raises many questions.

Was there a written news release from the state administration?

Does "assemble at the Statehouse" mean "inside" the building?

Is this limit "at one time", or is the count for the entire day?

Were there really 8,000 protesters in the Statehouse at one time during last year's session?

Re: "the number was based on an analysis' of what was safe" -- is this analysis available to the public?

What is the average count of individuals within the Statehouse, by day or by week, for the past year?

Other stories report access to the public will be limited to the east doors. If that means the doors at the top of the steps, doesn't it eliminate access to the disabled?

Does this limit apply to "visitors" to the judicial branch, as well as the executive and legislative branches?

Niki Kelly's tweet this morning puts it this way: "So what does everyone think about limiting free speech at the Indiana Statehouse through a cap on those allowed inside?"

[More]

Mary Beth Schneider: "Did you know there is a cap on free speech at the statehouse?"

Niki Kelly: @ericbradner All kinds of issues. How do they track people since you can leave out a bunch of unsupervised doors? What about school groups?

Eric Bradner: @nkellyatJG Same things I was wondering -- and that's just a start. I'm sorry, but this decision seems absurd.

Posted by Marcia Oddi on Friday, December 30, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 8 today (and 24 NFP)

For publication opinions today (8):

In Margaret Kosarko v. William A. Padula, Administrator of the Estate of Daniel L. Herndobler, Deceased , the issue is prejudgment interest. In a 9-page, 2-1 opinion (including a 4-page dissent)by Sr. Judge Barteau, the COA reverses the trial court’s denial of plaintiff-appellant's motion for prejudgment interest, concluding:

The trial court abused its discretion by denying Kosarko’s motion for prejudgment interest. Consequently, Kosarko is entitled to prejudgment interest in the amount of $79,627.40, which she requested in her motion. * * *

BAKER, J., concurs.
MAY, J., dissenting with separate opinion. [that concludes] Finally, even if I could concur with the majority’s decision to reverse the trial court’s denial of prejudgment interest, I could not concur with its decision to impose the $79,627.40 in pre-judgment interest Kosarko requested. Not only does that total erroneously contain interest for twelve months during which the judgment was delayed by Kosarko, but its imposition usurps the trial court’s authority to exercise its discretion in determining an appropriate amount of pre-judgment interest. See, e.g., Deel v. Deel, 935 N.E.2d 183, 188 (Ind. Ct. App. 2010) (remanding for trial court to consider request for pre-judgment interest). Permitting the trial court to determine the amount of prejudgment interest seems particularly appropriate where, as here, the legislature explicitly placed within the court’s discretion the setting of multiple values necessary to compute the amount of prejudgment interest due. See Ind. Code 34-50-4-8 (“court shall determine the period during which prejudgment interest accrues. . . .”); Ind. Code 34-50-4-9 (The court computes prejudgment interest based on the “simple rate of interest determined by the court,” but the rate must be between six and ten percent per year.). I would affirm the trial court’s denial of Kosarko’s petition for prejudgment interest and, therefore, I respectfully dissent.

In Mary Alice Manley and Gary Manley v. Ryan J. Sherer, M.D., and Sherer Family Medicine, a 12-page opinion by Sr. Judge Barteau, the COA reverses the trial court’s grant of Sherer's motion for summary judgment.

Midwest Psychological Center, Inc. v. Indiana Dept. of Administration, Correctional Medical Services, Inc., n/k/a Corizon, Inc., Indiana Minority Health Coalition, Inc., et al. , a 21-page opinion, Judge Crone writes:

Midwest Psychological Center, Inc. (“Midwest”), is a for-profit business that provides mental health services. Indiana Minority Health Coalition, Inc. (“Minority Health”), is a non-profit organization that provides mental health services. Both have received certification from the Indiana Department of Administration (“IDOA”) as a minority business enterprise (“MBE”). Corizon, Inc., has a contract with the IDOA to provide mental health services. Corizon has a subcontract with Minority Health to provide some of the mental health services under the contract with the IDOA. Midwest filed a grievance with the IDOA, alleging that Minority Health was not eligible to be certified a MBE and asking the IDOA to decertify Minority Health, but it did not. * * *

In summary, we conclude that Midwest lacks standing to challenge the contracts between Corizon and Minority Health and Corizon and the IDOA because it was not a party to the contracts, was not in privity with the parties, and was not a third party beneficiary of the contracts. Midwest cannot attain standing through Indiana Code Section 5-22-19-2 because it is not an aggrieved person. In addition, the allegations in Midwest's complaint do not show that it has standing to bring a judicial challenge to the IDOA proceedings regarding Minority Health's MBE decertification or the allegations of a conflict of interest. Accordingly, we affirm the trial court's grant of the Appellees' motions for judgment on the pleadings.

In Julie R. Waterfield Irrevocable Trust Agreement Dated October 21, 1997; Richard R. Waterfield and J. Randall Waterfield v. The Trust Company of Oxford and Julie R. Waterfield, Judge Bailey writes:
In sum, the trial court properly entered summary judgment for TCO and Julie. Richard and Randall’s claims for breach of fiduciary duty and breach of trust are time barred. And their claims for fraud and constructive fraud are not supported by any evidence of actual injury. As such, there is no genuine issue of material fact that precludes the entry of summary judgment for TCO and Julie, and we affirm the trial court’s entry of judgment as a matter of law.
American Savings, FSB v. Steve H. Tokarski, Successor Personal Rep. of the Estate of John Wroblewski, on Behalf of the Estate - "Plaintiff-Appellee Steve H. Tokarski, in his capacity as successor personal representative of the Estate of John Wroblewski, filed a three-count complaint against Defendant-Appellant American Savings, FSB, in Lake Superior Court. Both parties filed motions for summary judgment. American Savings now appeals the trial court‟s order granting summary judgment in favor of Tokarski on the first two counts. We reverse and remand."

In Judy Ellis v. M&I Bank, a 10-page opinion, Chief Judge Robb writes:

Judy Ellis appeals the trial court’s order granting M&I Bank immediate possession of real estate in which she has a leasehold interest. We restate the issue as whether the trial court properly denied the Ellises’1 motion to correct error with regard to the order of possession. Concluding the order of possession was properly entered and the trial court therefore did not abuse its discretion in denying the motion to correct error, we affirm.
In Marvelean Williams v. State of Indiana , a 6-page opinion, Judge Crone writes:
Indianapolis Metropolitan Police officers were dispatched to Marvelean Williams’s home to investigate a disturbance. Williams interfered with the investigation by yelling and ignoring orders to remain seated. Although Williams was not suspected of being involved in the initial disturbance, after her husband was arrested, the officers became concerned when she attempted to go into the kitchen that she might retrieve a weapon, and they decided to place her in handcuffs while they continued their investigation. When Williams resisted their efforts to handcuff her, she was arrested for resisting law enforcement. After a bench trial, Williams was convicted. On appeal, Williams argues that there is insufficient evidence that the police were lawfully engaged in their duties when they handcuffed her. Because the sole case that she relies on is distinguishable, we conclude that Williams has not shown that her conviction must be overturned. Therefore, we affirm.
In Jeremy L. Peters v. State of Indiana, a 17-page opinion, Judge May writes:
Jeremy Peters appeals his conviction of Class B felony unlawful possession of a firearm by a serious violent felon (“SVF”). * * *

The use of Peters’ post-arrest, pre-Miranda silence during the State’s case-in-chief was not fundamental error because the evidence of his guilt was strong, the references to his silence were brief, and the references came amidst the narrative explaining the events after the crime. Additionally, the State presented sufficient evidence Peters committed Class B felony unlawful possession of a firearm by a serious violent felon, and his sentence was not inappropriate. Accordingly, we affirm Peters’ convictions and sentences.

NFP civil opinions today (8):

Carlos Garcia v. Indiana Dept. of Correction and Donna Carnagee (NFP)

Tim Brauner v. RM & JP Investments, Inc. f/k/a Tools, Dies and Molds Co. (NFP)

In Re: The Marriage of Linda Carpenter and Willie Carpenter (NFP)

James Kindred, Thomas Kindred and Sam Kindred v. Betty Townsend and Harmon Crone (NFP)

Larry D. Brossman v. Teresa A. Digrigoli (NFP)

Amy Rogers v. Michael Durand (NFP)

In Re: The Estate of Lucille Lehnerd McMann, Mary Jane McMann, Elizabeth M. McMann and Patricia A. McMann v. Doreen McMann-Trimboli, Trustee; Lucille L. McMann Revocable Trust, et al. (NFP)

Mark Van Eaton and Cynthia Van Eaton Vallimont v. The Ralph David Van Eaton Revocable Trust (NFP)

NFP criminal opinions today (16):

Taiwo K. Baker, Jr. v. State of Indiana (NFP)

Sassy Belle Sunderman v. State of Indiana (NFP)

George Foote, Jr. v. State of Indiana (NFP)

Thad Suggs III v. State of Indiana (NFP)

Edward Mercer v. State of Indiana (NFP)

Jarrod Eugene Rodriguez v. State of Indiana (NFP)

William Scanlon v. State of Indiana (NFP)

Willie James Huggins, Jr. v. State of Indiana (NFP)

Shawn Williams v. State of Indiana (NFP)

Jeffrey R. Double v. State of Indiana (NFP)

Dylan R. Sinn v. State of Indiana (NFP)

Willis Simmons v. State of Indiana (NFP)

Jeffrey L. Wright v. State of Indiana (NFP)

Daniel Cardine v. State of Indiana (NFP)

Jamaal Tinsley v. Nancy Parrish (NFP)

Christopher R. Hardy v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 30, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Judge rules for health insurer: She says class action against WellPoint by former Anthem policyholders is prohibited"

That was the headline to this story by John Russell in the business section of the Dec. 28, 2011 Indianapolis Star. Some quotes:

Indianapolis health insurer WellPoint says it is off the hook for hundreds of millions of dollars in potential damages after a federal judge ruled that a predecessor company did not break the law on compensating stockholders when it went public a decade ago.

U.S. District Judge Tanya Walton Pratt ended the hopes of about 757,000 class-action plaintiffs, about a fourth of whom live in Indiana, when she granted summary judgment to WellPoint in the case.

The plaintiffs had claimed that Anthem breached its contract with policyholders in the manner in which it changed from an Indiana mutual insurance company to a stock company in 2001. The plaintiffs alleged that Anthem underpriced its initial public offering by $6 to $10 a share. They also claimed that Anthem gave millions of dollars of stock to favored corporate customers that were ineligible for stock because they weren't insured policyholders.

In the process of going public, Anthem issued tens of millions of shares of stock to its members and the public. It priced the initial stock offering at $36 a share, and the stock rose to $42.90 at the end of the first trading day.

The company was later bought by WellPoint, the nation's largest health insurer by number of members. The plaintiffs, who are ex-policyholders, had sought potential damages of $300 million to $500 million against WellPoint.

In a 25-page ruling issued late Friday, Pratt said the suit was barred by the Securities Litigation Uniform Standards Act, which pre-empts certain securities-related class actions.

At the end of Wednesday's story, this:
WellPoint is still battling some claims in a related case, although Pratt has already entered summary judgment for Anthem on most of the claims in that case. "Anthem will continue to vigorously defend against the remaining allegations" in that case, the company said.

It was unclear how much the plaintiffs in the second case were seeking.

ILB: There is no indication online, but the Star published a correction to the above on p. 2 of this morning's printed paper:
A story Wednesday on Page A7 mischaracterized a court ruling in a lawsuit against Indianapolis health insurer WellPoint. There are actually two separate lawsuits in the matter. U.S. District Judge Tanya Walton Pratt granted summary judgment in one of them: Jeffrey D. Jorling v. Anthem Inc. That case was brought by policy holders who had received stock when Anthem went public in 2001, but the plaintiffs were never certified as a class. Another case, Mary E. Ormond v. Anthem Inc., with more than 700,000 class members as plaintiffs, remains alive and is scheduled for trial in Indianapolis on June 18. That case alleges that Anthem underpriced its initial public offering.

Posted by Marcia Oddi on Friday, December 30, 2011
Posted to Ind Fed D.Ct. Decisions

Stage Collapse - "Governor: Stage collapse victims deserve more cash"

From an AP story published this morning in the Gary Post-Tribune, a few quotes:

INDIANAPOLIS — Gov. Mitch Daniels said Thursday he will push for more money for victims of the Indiana State Fair stage collapse, but lawmakers will have to decide how much. * * *

“I certainly think they ought to do something further, then let’s figure out together what exactly that is,” he said.

“I think the best thing would be for the Legislature to pick out what is fair and just.” * * *

One option Daniels floated would be paying families of the seven people who died a total of $700,000 from the state, the maximum payout allowed under the state’s tort limit.

Indiana Attorney General Greg Zoeller and national disaster claims expert Kenneth Feinberg divided the state’s $5 million among victims. The families of the seven people who died were given upward of $300,000 each under the formula they devised. People who were physically injured generally had two-thirds of their medical costs covered by the state.

Posted by Marcia Oddi on Friday, December 30, 2011
Posted to Stage Collapse

Ind. Law - "Singing the anthem: Are you doing it 'right'? Lawmaker wants rules for performances at schools"

The Indianapolis Star investigative team of Tim Evans and Heather Gillers have this front-page story this morning. A few quotes:

Sen. Vaneta Becker, R-Evansville, has introduced a bill that would set specific "performance standards" for singing and playing "The Star-Spangled Banner" at any event sponsored by public schools and state universities. * * *

The bill calls for schools to maintain audio recordings of all performances for two years and develop a procedure for dealing with complaints if a musician is alleged to have strayed from the approved lyrical or melodic guidelines.

ILB: Perhaps instead, allow playing a 78 of Kate Smith belting out "God Bless America"?

Posted by Marcia Oddi on Friday, December 30, 2011
Posted to Indiana Law

Ind. Law - Lawyers in the news ...

"Sellersburg town attorney charged with DUI again," is the headline to this story by Ben Zion Hershberg in the Louisville Courier-Journal. Some quotes:

Sellersburg Town Attorney William P. McCall III was arrested early Thursday morning by the Indiana State Police on preliminary charges of operating a vehicle while intoxicated and refusing to be tested for alcohol by the police. * * *

It is McCall’s second arrest this year in Clark County on DUI charges, and he also was arrested in October 2001 on the same charge, according to county jail records.

"Lawyer arrested for domestic battery," is a New Castle Courier-Times staff report.

Posted by Marcia Oddi on Friday, December 30, 2011
Posted to Indiana Law

Thursday, December 29, 2011

Ind. Decisons - Supreme Court posts third opinion today

In Diane Recker v. Review Board of the Indiana Dept. of Workforce Development, and FedEx Trade Networks, an 8-page, 5-0 opinion in an appeal from the Review Bd. of the Ind. Dep't of Workforce Development, Justice Dickson writes:

This is an appeal from the denial of unemployment insurance benefits to a claimant after her departure from employment because she was unable to perform skills required for her employment. We affirm the denial of her claim.
See note 4 on p. 2 for an interesting discussion of Adm. Rule 9(G).

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

Ind. Courts - Still more on: "'Teen Mom' Star Violates Probation "

Updating two earlier ILB entries, Abbey Doyle of the Anderson Herald Bulletin had this long story Dec. 23rd, headed "'Teen Mom' to remain jailed through holidays: Portwood wants to end relationship with MTV."

Posted by Marcia Oddi on Thursday, December 29, 2011
Posted to Indiana Courts

Ind. Courts - Appellate rule changes effective Jan. 1, 2012

Thanks to the ISBA for posting this 9-page article by Maggie Smith of Frost Brown Todd LLC titled "Recent Amendments to the Rules of Appellate Procedure."

Posted by Marcia Oddi on Thursday, December 29, 2011
Posted to Indiana Courts

Ind. Decisions - Another Supreme Court opinion today

In State of Indiana v. Amanda Renzulli, a 12-page, 4-1 opinion, Justice David writes:

We have granted transfer in this case to address whether a police officer had reasonable suspicion to stop a vehicle based on a concerned citizen’s tip of a possibly intoxicated driver. At 1 a.m. on April 23, 2009, a 911 call was made by a motorist who identified himself and provided his phone number. The caller complained that he had been following a driver of a blue Volkswagen who had been driving erratically and was going to “kill somebody.” The caller told the 911 operator the vehicle just pulled into a BP Gas Station. Within 90 seconds, an officer arrived at the BP Gas Station and observed the blue Volkswagen. With this corroboration, the officer made an investigatory stop of Amanda Renzulli. The trial court granted Renzulli’s motion to suppress the evidence on the grounds that there was no reasonable suspicion for the stop. We hold that the police officer in this instance did have reasonable suspicion and reverse the trial court. * * *

Based on the totality of the circumstances, we hold that Davies supplied sufficient information to establish reasonable suspicion to support the investigatory stop. Those circumstances include the time of day with little vehicular traffic, vehicle color and make, location of the vehicle, and almost immediate response and arrival at the scene by the police. We further arrive at this conclusion because Davies identified himself and provided a telephone
number.[5] We hold in this case with these facts, based on the totality of the circumstances, the police had reasonable suspicion based on articulable facts to briefly detain Renzulli for investigatory purposes.
_______
[5] It may be advisable in the future for 911 operators to take further identifying information from concerned citizen tips. Information such as date of birth and home address, along with the name and telephone number of a concerned citizen would give greater reliability to these types of tips. This information would potentially place the concerned citizen under penalties of false informing and would help alleviate the concern of a possible imposter or prankster.

Shepard, C.J. and Sullivan, J., concur.
Dickson, J., concurs in result without opinion.
Rucker, J., dissents with separate opinion. [that begins at p. 11 of 12] After conducting an evidentiary hearing, the trial court granted Renzulli’s motion to suppress the evidence. The trial court concluded that the officers responding to the 911 call did not “establish[] an independent and objective basis to create a reasonable suspicion of criminal behavior necessary for an investigatory stop.” I agree with the trial court and therefore respectfully dissent.

ILB: Interestingly, the COA opinion was split 1-1-1. See the ILB entry at Oct. 5, 2010.

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

Ind. Decisions - Supreme Court decides Freeeats, a robo-call case, upholding the Indiana statute

As the ILB wrote in this entry dated Sept. 27, 2011, where Federal Judge William T. Lawrence has just issued a permanent injunction in Patriotic Veterans against the enforcement of Indiana’s Automated Dialing Machine Statute (“IADMS”), Ind. Code 24-5-14 with regard to interstate calls made to express political messages. :

Freeeats is another robo-call case with a long history both in federal and state court. Judge McKinney upheld the Indiana law in an Oct. 2006 ruling. The 7th Circuit then dismissed in Sept. 2007, "saying the case doesn't belong in federal court," according to a story at the time. The case then made its way through state court, the latest entry the ILB has is of oral argument before the Supreme Court on Thursday, January 20th in State of Indiana v. FreeEats.
Today, in State of Indiana v. Economic Freedom Fund, FreeEats.com, Inc., Meridian Pacific, Inc., and John Does 3-10, a 31-page, 4-1 opinion, Justice David writes:
In this case, the State seeks to enforce a particular provision of the Indiana Autodialer Law against an entity that uses an automated dialing device to deliver prerecorded political messages. The trial court, on cross-motions for preliminary injunction, decided that the entity had a reasonable likelihood of success on the merits of its claim that the live-operator requirement of the Autodialer Law violates the free speech clause of the Indiana Constitution.

We hold that the entity’s First Amendment claim would likely fail. We also hold there is no reasonable likelihood of success on the merits of the entity’s claim that the Autodialer Law’s live-operator requirement materially burdens its right to engage in political speech in violation of the state constitution. * * *

We find that the trial court incorrectly found that FreeEats had a reasonable likelihood of success on its claim that the live-operator provision of the Autodialer Law violates Article 1, Section 9 of the Indiana Constitution. Accordingly, we reverse the trial court’s granting in part of the preliminary injunction in favor of FreeEats and reverse the trial court’s denial in part of the preliminary injunction against the State. We remand to the trial court for further proceedings.

Shepard, C.J., and Dickson and Rucker, JJ., concur.
Sullivan, J., dissents with separate opinion [which begins at p. 16 of 31] Like Special Judge Kenneth G. Todd, I believe that application of the live-operator requirement in the present case imposes a material burden on political speech in violation of Art. I, § 9, of the Indiana Constitution.1 And I further believe that application of this requirement violates the First Amendment to the United States Constitution. I therefore respectfully dissent. * * *

I would hold that the Indiana Autodialer Law fails to satisfy the level of intermediate scrutiny applicable to content-neutral laws. And because the statute runs afoul of the First Amendment, it seems to me even clearer that it violates Art. I, § 9, of the Indiana Constitution, for when it comes to political speech, Price v. State provides Hoosiers broader protections than the First Amendment.

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

Ind. Decisions - Court of Appeals issues 5 today (and 17 NFP)

For publication opinions today (5):

In Natalia Robertson, Personal Rep. of the Estate of John Lee Cunningham, III v. Gene B. Glick Co., Inc., The Woods of Eagle Creek, Briarwood Apartments, LP, and Briarwood Apartments II, LP , a 14-page opinion, Chief Judge Robb writes:

John Cunningham was shot and killed while at his girlfriend’s apartment complex. More than two years after his death, Natalia Robertson, acting as personal representative of the Estate of John Cunningham, brought a wrongful death claim against the apartment complex and its parent companies. The trial court dismissed the claim, concluding it was untimely because Indiana’s General Wrongful Death Act requires that a wrongful death claim be brought within two years of the decedent’s death. Robertson raises one issue for our review, which we expand and restate as three: 1) whether Indiana Code section 34-11-6-1 should apply to Indiana’s General Wrongful Death Act; 2) whether Indiana’s wrongful death statutes violate the Privileges and Immunities Clause, Article 1, Section 23 of the Indiana Constitution; and 3) whether Indiana’s wrongful death statutes violate the Due Course of Law Clause, Article 1, Section 12 of the Indiana Constitution. Concluding section 34-11-6-1 does not apply to the General Wrongful Death Act and that our wrongful death statutes do not violate the Privileges and Immunities Clause or Due Course of Law Clause of the Indiana Constitution, we affirm the trial court’s dismissal of Robertson’s claim as untimely. * * *

Indiana Code section 34-11-6-1 does not apply because the GWDA is not subject to tolling. Robertson has failed to meet her burden that Indiana’s wrongful death statutes violate either the Privileges and Immunities Clause or the Due Course of Law Clause of the Indiana Constitution. We therefore affirm the trial court’s dismissal of Robertson’s wrongful death complaint.

In In the Matter of the Supervised Estate of Leah Yeley, Deceased; Larry Yeley v. Timothy Purdom, as Personal Rep. of the Estate of Leah Yeley , a 13-page opinion, Judge Bailey writes:
Larry Yeley (“Larry”) appeals the denial of his motion to correct error, which challenged a probate court order approving a settlement agreement reached pursuant to the adjudicated compromise of controversies provisions of the Indiana Probate Code. We reverse and remand.

Yeley presents three issues for review, which we consolidate and restate as two: I. Whether the probate court erroneously concluded that Yeley lacks standing to contest the settlement agreement; and II. Whether Yeley may participate in a will contest he did not initiate. * * *

The probate court simply imposed upon Larry the agreement reached by his siblings. This is in contravention of the compromise statute requiring a signature from each competent person having an interest or claim which will or may be affected by the compromise. As such, the trial court’s approval of the settlement agreement was in error.

Notwithstanding the unenforceability of the purported settlement agreement, we must decide whether Larry is prohibited from participation in the will contest. The other beneficiaries contend that, even if Larry was an interested party for purposes of settlement, he cannot pursue litigation because of the applicable statute of limitations, principles of waiver and estoppel, or accord and satisfaction. * * *

The brief record before us reveals no juncture at which Larry has affirmatively relinquished his right to litigate the validity of any or all of the testamentary documents at issue. * * *

Because it involves finding of facts, outside of our appellate role, we express no opinion as to whether an estate distribution in fact took place, was intended by the parties to constitute satisfaction of any and all claims Larry held against the estate, or whether such payment was restored. See State Comp. Ins. Fund v. WallDesign, Inc., 132 Cal. Rptr.3d 352, 355, n.1 (Cal. Ct. App. 2011) (reiterating, “if it is not in the record, it did not happen”).
Reversed and remanded for further proceedings consistent with this opinion.

In Moorehead Electric Co. v. Jerry Payne , an 11-page opinion, Judge Mathias writes:
Moorehead Electric Company, Inc. (“Moorehead”) appeals the Worker’s Compensation Board’s award of benefits to Jerry Payne (“Payne”). Mooreheard argues that the Board erred when it determined that Payne was entitled to benefits for an injury he sustained outside of the workplace but that arose from a prior, compensable injury. Concluding that the Board properly awarded benefits to Payne for the subsequent injury, we affirm.
Mario A. Allen v. State of Indiana - "Mario Allen appeals the LaPorte Superior Court’s denial of his petition for postconviction relief. Although Allen agrees with the post-conviction court’s finding that he was denied the assistance of appellate counsel, he argues that the proper remedy is a new trial. The State also agrees with the post-conviction court’s finding that Allen was denied the assistance of appellate counsel, but claims that the proper remedy is simply to permit Allen to proceed with the direct appeal that he was denied. We agree with the State and reinstate Allen’s direct appeal."

David L. Johnson, Jr. v. State of Indiana - "In sum, the trial court did not abuse its discretion when it denied Johnson’s tendered jury instructions on two lesser-included offenses of neglect of a dependent. The trial court also did not abuse its discretion when it permitted the State to introduce into evidence the social worker’s testimony. And the trial court’s conclusion that the State did not act out of vindictiveness when it included Count II in the amended indictment is not clearly erroneous. Thus, we affirm Johnson’s conviction."

NFP civil opinions today (6):

William Pond v. Paul B. McNellis and Linda Peters Chrzan (NFP)

Michael Loverde v. Thomas Kuehl (NFP)

In the Matter of the Involuntary Term. of the Parent-Child Rel. of K.N., B.N., R.N., and G.N.; and C.N. v. Indiana Dept. of Child Services, Child Advocates Inc. (NFP)

Glenn D. Odom, II v. Indiana Dept. of Correction (NFP)

J.M. v. Review Board of the Indiana Dept. of Workforce Development (NFP)

Maria Espinoza v. Rosa Martinez, Mi Familia Tienda, and Nassirou Gado (NFP)

NFP criminal opinions today (11):

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

John W. Sawyer v. State of Indiana (NFP)

Troy Howard v. State of Indiana (NFP)

Miguel Esqueda v. State of Indiana (NFP)

Fred E. Gordon v. State of Indiana (NFP)

Robert Strickland v. State of Indiana (NFP)

Johnathon R. Aslinger v. State of Indiana (NFP)

Summer Belli-McIntyre v. State of Indiana (NFP)

Carrie Joan Garrett v. State of Indiana (NFP)

Michael W. Krauskopf, Sr. v. State of Indiana (NFP)

Thomas J. Tarrance v. State of Indiana (NFP)

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

Wednesday, December 28, 2011

Ind. Courts - "Wallace case pending before disciplinary board"

Adding to a long list of ILB entries referencing "William R. Wallace," the most recent being from Oct. 7, 2011, a Dec. 27th story by Andrea Howe in the Princeton Daily Clarion begins:

An appeal to one of the charges in a criminal case against him and a complaint against him before the Indiana Supreme Court Disciplinary Commission remain pending for Princeton attorney William R. Wallace III.

Wallace took a plea deal this summer that brought a penalty of 90 days of home detention and 458 days of probation, and triggered the complaint submitted to the disciplinary commission. The commission's roll of attorneys Tuesday denotes a pending investigation regarding Wallace.

He was sentenced after pleading guilty to obstruction of justice and possession of child porn, which requires him to also register as a sex offender.

The plea deal contained a provision that Wallace would plead guilty to a third felony charge of voyeurism, which is pending before the Indiana Court of Appeals, if the higher court decides the charge should stand. As of Tuesday, the court had not ruled on that matter.

Under terms of the plea agreement, the sentence for the voyeurism charge would run concurrently with the other two convictions if the court upheld the charge.

If the higher court rules in Wallace's favor, the voyeurism charge would be dismissed.

The convictions were reported to the Indiana Supreme Court's Disciplinary Commission, which triggered the pending investigation to determine whether there are grounds for his license to practice law to be suspended or terminated.

Posted by Marcia Oddi on Wednesday, December 28, 2011
Posted to Indiana Courts

Law - "States Cleared for Online Bets"

Apparently, the state of Indiana is now free to move into online gambling, such as state-sponsored online lotteries and poker. That according to this story in the Wall Street Journal ($$$) reported by Alexandra Berzon. A sample:

Efforts in states to move into online gambling would in some cases require changes in state law. In other cases lotteries could proceed with some types of online sales with the approval of lottery commissions or state governors, industry officials say. Some industry leaders hope for big gains later on with online instant lottery games that would be designed to attract casual gamers.

Posted by Marcia Oddi on Wednesday, December 28, 2011
Posted to General News

Ind. Decisions - Court of Appeals issues 2 today (and 17 NFP)

For publication opinions today (2):

In Michael Collier v. State of Indiana, an 8-page opinion, Judge Baker writes:

Here, we are reminded of the old adage that it is not only what you say but how you say it. This is precisely why we grant trial courts the responsibility to determine whether a defendant has made his or her case in accordance with Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits the exercise of racially discriminatory peremptory challenges. In this case, although the trial court determined that the Batson challenge was met, the defendant’s motion was denied because there was a “fair enough jury” to proceed. Under these circumstances, we must conclude that the conviction must be set aside.

Appellant-defendant Michael Collier appeals his conviction for Resisting Law Enforcement, a class D felony. Specifically, Collier argues that his conviction must be reversed because the trial court erred when it found that Collier had satisfied the Batson requirements but determined that the case should proceed to trial. Collier maintains that once the trial court determines that purposeful discrimination has been established, Batson requires either the peremptory strikes should be denied or a mistrial should be declared. Moreover, Collier claims that he did satisfy the requirements of Batson in light of the deputy prosecutor’s “tainted race-neutral reasons” to explain his use of peremptory strikes to remove African-Americans from the venire. Concluding that the trial court erred in denying Collier’s request for a mistrial pursuant to Batson, we reverse Collier’s conviction and remand for a new trial.

In Kimberly Heaton v. State of Indiana , a 7-page opinion, Judge Vaidik writes:
Kimberly Heaton appeals the revocation of her probation and the trial court’s order that she serve eighteen months of her previously-suspended sentence in the Indiana Department of Correction. She contends that the trial court abused its discretion in imposing the eighteen-month sentence by both using the incorrect legal standard to determine if she had committed another offense and by using rules that were vague as to what constitutes a change of address. We hold that the terms of probation regarding Heaton’s address were not vague, but that the trial court did abuse its discretion by using the incorrect legal standard in determining if Heaton committed another offense. We therefore reverse and remand to the trial court to use the correct legal standard to determine whether Heaton violated her probation by committing a new offense and resentence her in light of the new findings.
NFP civil opinions today (3):

Term. of Parent-Child Rel. of A.W.; N.W. (Mother) v. Indiana Dept. of Child Services (NFP)

The Term. of the Parent-Child Rel. of: D.H.H. & A.M.H., and Carrie Crawford v. Indiana Dept. of Child Services (NFP)

Walter Angermeier and Wolflin, LLC v. Schultheis Insurance Agency Inc. and William Thompson, Agent (NFP)

NFP criminal opinions today (14):

Adrian Collins v. State of Indiana (NFP)

Terrence Terren Walker v. State of Indiana (NFP)

Douglas L. Hayden v. State of Indiana (NFP)

Sheila Taylor v. State of Indiana (NFP)

Kevin Backus v. State of Indiana (NFP)

Todd Brown v. State of Indiana (NFP)

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

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

Allison Johnson v. State of Indiana (NFP)

Kevin Hounshell v. State of Indiana (NFP)

Larry A. Rowe, Jr. v. State of Indiana (NFP)

Joshua Baker v. Robert Brown (NFP)

John T. Hamilton v. State of Indiana (NFP)

John R. Crawford v. State of Indiana (NFP)

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

Ind. Decisions - 7th Circuit decides one Indiana case today

In U.S. v. George Pabey (ND Ind., Moody), a 27-page opinion, Judge Flaum writes:

On September 24, 2010, George Pabey, former mayor of East Chicago, and Jose Camacho, East Chicago’s head of the Engineering Department, were convicted of conspiring to embezzle government funds and embezzling government funds. According to the district court, Pabey and Camacho used government funds and government employees to renovate a house (the “Property”) that Pabey and his wife purchased in October 2007. During trial, Pabey claimed that he was unaware of the scheme to use city funds and employees. In response to this denial, the district court gave the jury a conscious avoidance instruction, informing them that Pabey’s knowledge of the scheme can be inferred if they find that he deliberately avoided the knowledge necessary for his conviction. The jury convicted Pabey, and he appeals the court’s issuance of the conscious avoidance instruction.

In the event that we do not upset his verdict, Pabey asks that we reduce the length of his sentence. Pabey was given an initial offense level of 10 under the United States Sentencing Guidelines (“U.S.S.G.”), but the court increased his offense level with several enhancements. The court applied a two-point enhancement for obstruction of justice, a four-point enhancement for Pabey’s leadership role in the offense, and a two-point enhancement for abuse of a position of trust, bringing Pabey’s total offense level to 18. With a criminal history level of one, Pabey’s guideline range was 27-33 months’ imprisonment. The district court found that Pabey’s offense warranted an upward departure from the guidelines and sentenced him to 60 months’ imprisonment, along with a $60,000 fine, more than $14,000 in restitution, a $200 special assessment fee, and three years of supervised release. Pabey contests each of the sentence enhancements as well as the reasonableness of the court’s upward departure from the sentencing guidelines.

For the following reasons, we affirm both Pabey’s conviction and the sentence imposed by the district court.

Posted by Marcia Oddi on Wednesday, December 28, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Tax Court posts two this week

In Lyle Lacey v. Indiana Dept. of State Revenue, a 10-page, Dec. 28, 2011 opinion, Judge Wentworth awards the State attorneys' fees:

On February 3, 2011, Lyle Lacey initiated an original tax appeal claiming that his 2008 income was not subject to Indiana adjusted gross income tax (AGIT). On August 31, 2011, the Court dismissed his appeal for failure to state a claim on which relief could be granted. Lacey v. Indiana Dep’t of State Revenue (Lacey III), 954 N.E.2d 536, 538 (Ind. Tax Ct. 2011). The Indiana Department of State Revenue (Department) now seeks to recover its attorney fees under Indiana Code § 34-52-1-1. * * *

One issue in this case is dispositive: whether an award of attorneys’ fees is warranted under Indiana Code § 34-52-1-1 because Lacey continued to litigate his 2008 AGIT claim after it clearly became frivolous? * * *

While Indiana’s “legal process ‘must invite, not inhibit, the presentation of new and creative argument’ to enable the law to grow and evolve[,]” the General Assembly enacted Indiana Code § 34-52-1-1 in order to discourage needless litigation. Mitchell, 695 N.E.2d at 925 (citation omitted) (emphases added). Given the totality of the facts in this case, the Court must conclude that Lacey continued to pursue his claim when any reasonable attorney would have understood that the claim was frivolous.

Furthermore, all three of Lacey’s original tax appeals have advanced classic tax protestor arguments. Indeed, this Court has heard and disposed of many of these arguments in prior cases. Moreover, other courts have found tax protestor arguments frivolous, reasoning that their proponents did not make good faith, rational arguments for an extension, reversal, or modification of existing law. ... Consequently, tax protestors are often subject to court sanctions for needlessly draining the resources of their adversaries and the judicial system. Because Lacey failed to make a good faith or rational argument for the extension, modification, or reversal of existing law with respect to his 2008 AGIT claim, the Court finds that an award of attorney fees under Indiana Code § 34-52-1-1(b)(2) is proper. * * *

The Court finds that an award of $1,600 of attorneys’ fees is appropriate.

In Metropolitan School District of Pike Township v. Indiana Department of Local Government Finance, a 9-page, Dec. 27, 2011 opinion, Judge Wentworth writes:
The Metropolitan School District of Pike Township (the School District) appeals the Department of Local Government Finance’s (DLGF) final determination recalculating its capital projects fund (“CPF”) levy property tax rate for 2011. The appeal presents one issue for this Court to decide: whether the DLGF’s recalculation was correct. * * *

This Court previously held that steps two and four of the above formula require the use of a zero value when there is no increase in a school district’s assessed value from one year to the next. See DeKalb Cnty. E. Cmty. Sch. Dist. v. Dep’t of Local Gov’t Fin., 930 N.E.2d 1257, 1260-61 (Ind. Tax Ct. 2010). Likewise, steps two and four require the use of a zero value, as opposed to a negative value, when a school district’s assessed value actually decreases. * * *

[W]hen a judicial opinion rendered in a civil case makes a pronouncement of the law, that pronouncement has not only prospective effect, but also retrospective effect. Don Medow Motors, Inc. v. Grauman, 446 N.E.2d 651, 654 (Ind. Ct. App. 1983) (citing Center Sch. Twp. v. State ex rel. Bd. of Sch. Comm’rs, 49 N.E. 961, 963 (Ind. 1898)). This is so because, in theory, “the law has not changed; the last judicial decision is said to have enunciated the law as it has always existed.” Id. (emphasis added) (citations omitted). Thus, when the 2010 DeKalb decision explained why steps two and four of the formula contained in Indiana Code § 6-1.1-18-12(e) required zero values as opposed to negative values, that meant that the DLGF should have been using those zero values since 2007 when Indiana Code § 6-1.1-18-12(e) first became applicable to public school corporations. * * *

For the foregoing reasons, the DLGF’s final determination in this matter is REVERSED. The matter is REMANDED to the DLGF with instructions to recalculate the School District’s CPF levy property tax rates for 2007 through 2010 by using zero values instead of negative values in steps two and four of the formula contained in Indiana Code § 6-1.1-18-12(e). These corrections will result in both a step one and a step seven value for 2011 of 0.3100.

Posted by Marcia Oddi on Wednesday, December 28, 2011
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Transfer list for week ending December 22, 2011

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Nov. 18, 2011 list.]

Here is the Clerk's transfer list for the week ending Thursday, December 22, 2011. It is two pages (and 22 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Wednesday, December 28, 2011
Posted to Indiana Transfer Lists

Stage collapse - More on: Marion County Prosecutor: Women Falsely Claimed State Fair Injuries

Updating yesterday's ILB entry, the Indianapolis Star has a story today by Bill McCleery with some additional details. From the story:

[Sandra] Hurn initially collected a $7,500 check from the remembrance fund, the prosecutor said, while Murry's claim was denied by the State Fair Commission because her alleged injuries did not meet qualifications.

The two women also both submitted a tort claim notice for personal injury to the Indiana attorney general's office, Curry said. In response, officials told both women they would receive money from the fund.

Instead, however, authorities arrested Murry when she went to pick up her claim check. Hurn was arrested a short while later.

Neither of the women ultimately received any money from the tort claim fund, said Bryan Corbin, a spokesman for the attorney general. * * *

The women submitted claims for total compensation of $22,500 from the funds, Curry said. The Indiana attorney general's office administers the tax-supported tort claim fund, and the Indiana State Fair Commission administers the privately supported remembrance fund.

ILB: Interestingly, only state fair victims who had a 4-9 day hospital stay were to be awarded $7,500 from the Remembrance Fund [Relief Fund].

Here is an Oct. 30th ILB entry on the distributions from that fund, which was made up of private donations. According to this criteria from the State Fair Commission, here is how the funds in the Relief Fund were to be distributed:

• $35,000 for death claims
• $25,000 for those admitted and hospitalized for at least 10 days and nights
• $7,500 for those admitted and hospitalized for 4-9 days and nights
• $3,000 for those admitted and hospitalized for 1-3 nights and days
The ILB has not seen a comprehensive list of the totals awarded from the Relief Fund.

The awards from the Indiana Tort Claim Fund, however, are available. Here is a copy.

Both Ms. Hurn and Ms. Murry are listed on p. 1, receiving awards of $4,876.65 and $2,984.71 respectively. Thus Ms. Hurd, who had received $7,500 earlier from the private relief fun on the basis of a 4-9 day hospital stay, was to have received less than $5,000 from the larger Tort Claims Fund, while Ms. Murry, who had no overnight hospital stay evidence, was to have received nearly $3,000.

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

Stage collapse - Indiana disaster "puts focus on safety in TN: Efforts intensify ahead of New Year's Eve bash"

The Tennessean, another Gannett paper, has a story today by Anita Wadhwani on safety measures for Nashville's Lynyrd Skynyrd show, spurred on by the Indiana disaster. Some quotes:

Tennessee state engineers will inspect the stage, its roof and the 115-foot scaffolding that anchors a one-story-high red musical note, which will be lowered to mark the countdown to midnight and 2012.

The stage will be tethered to concrete barricades — the kind used in highway construction.

And officials with the Office of Emergency Management will monitor weather and wind conditions, with a series of plans in place to lower stage scrims at specific wind speeds and order people to take cover if severe weather approaches.

Metro police officers will man a 40-foot-tall “sky watch” to more closely monitor the scene as well.

“We obviously took what happened in Indiana very seriously,” said Butch Spyridon, president of the Nashville Convention & Visitors Bureau, which organizes the event. The concert is expected to attract 40,000 visitors and be broadcast live as part of CNN’s New Year’s Eve coverage this year.

“We started working on an expanded safety plan at our first planning meeting this year,” which fell in September, Spyridon said. “(The stage collapse) raised everybody’s level of attention and level of concern.”

Spyridon said he is in charge of making the final decision on whether a concert should be canceled or postponed because of inclement weather.

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

Ind. Law - Kroger manager shoots and kills would-be robber inside story ...

Alex Campbell and Heather Gillers report today on the still unfolding legal story relating to the "actions of a Kroger store manager who shot and killed a would-be robber inside the grocery store."

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

Ind. Decisions - Transfer list for week ending December 23, 2011

No transfer list has yet been posted for the week ending December 23, 2011.

Posted by Marcia Oddi on Wednesday, December 28, 2011
Posted to Indiana Transfer Lists

Tuesday, December 27, 2011

Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Clayton C. Franchville v. Dyanne R. Franchville (NFP)

H & J Legacy Family Limited Partnership v. R.L.S. Developments, LLC, et al. (NFP)

NFP criminal opinions today (7):

Ronnie Major v. State of Indiana (NFP)

David D. Sanders v. State of Indiana (NFP)

Khristopher D. Harvey v. State of Indiana (NFP)

Mark A. Conley v. State of Indiana (NFP)

Anthony Morris v. State of Indiana (NFP)

David Leroy Hale v. State of Indiana (NFP)

Christopher W. Hovis v. State of Indiana (NFP)

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

Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal

In ATA Airlines v, FedEx (SD Ind., Young), a 28-page opinion, Judge Posner writes:

ATA filed this diversity suit for breach of contract against Federal Express (which the parties call “FedEx,” as shall we, even though it’s actually a subsidiary of FedEx Corporation), and obtained a jury verdict in the exact amount it had asked for: $65,998,411. FedEx has appealed. ATA has filed a cross-appeal that is conditional on our reversing the judgment; the crossappeal challenges the district court’s refusal to let ATA present evidence that it incurred $27,842,748 in unrecoverable costs in reliance on a promise by FedEx in the alleged contract, and that it is entitled to recover these costs as reliance damages, either as an alternative to the expectation damages awarded by the jury or pursuant to the doctrine of promissory estoppel. The parties agree that the substantive issues are governed by the law of Tennessee, FedEx’s principal place of business, except that FedEx defends the district court’s ruling that ATA’s promissory estoppel claim is preempted by the federal Airline Deregulation Act. See American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995); Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992).

We begin there, and can be brief: the ruling was incorrect. Although the Act forbids a state to “enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier,” 49 U.S.C. § 41713(b)(1), it does not “afford [] relief to a party who claims and proves that an airline dishonored a term the airline itself stipulated. This distinction between what the State dictates and what the airline itself undertakes confines courts, in breach-ofcontract actions, to the parties’ bargain, with no enlargement or enhancement based on state laws or policies external to the agreement.” American Airlines, Inc. v. Wolens, supra, 513 U.S. at 232-33. * * *

The judgment is reversed with instructions to dismiss the suit with prejudice. REVERSED.

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

Stage collapse - Marion County Prosecutor: Women Falsely Claimed State Fair Injuries

This brief story today from Indy6 News - some quotes:

INDIANAPOLIS -- Two women were charged with several felony counts after they falsely claimed to have been injured in the Indiana State Fair stage rigging collapse, the Marion County Prosecutor's Office said Tuesday.

Stephanie Murry and Sandra Hurn submitted claims to both the Indiana State Fair Remembrance Fund and the Indiana Tort Claim Fund, Marion County Prosecutor Terry Curry said.

The women falsified hospital records before submitting the claims, prosecutors allege.

Hurn received a $7,500 check from the remembrance fund, but Murry's claim was denied because the injuries reported didn't meet qualifications, officials said.

Both women were told they would receive a check from the tort claim fund, but Hurn was arrested when she arrived to pick up the check. Murry was taken into custody a short time later.

ILB: This may raise some questions about the criteria--the minimum overnight hospitalization, etc: "Murry's claim [from the remembrance fund] was denied because the injuries reported didn't meet qualifications, officials said. Both women were told they would receive a check from the tort claim fund."

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

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

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

But first, this would be a wonderful time for you to become an ILB supporter for 2012! Please think about supporting the ILB!

From Monday, December 26, 2011:

From Sunday, December 25, 2011: From Saturday, December 24, 2011:

From Friday afternoon, December 23, 2011:

Posted by Marcia Oddi on Tuesday, December 27, 2011
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/26/11):

Next week's oral arguments before the Supreme Court (week of 1/2/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/26/11):

Next week's oral arguments before the Court of Appeals (week of 1/2/12):

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

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


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

Posted by Marcia Oddi on Tuesday, December 27, 2011
Posted to Upcoming Oral Arguments

Monday, December 26, 2011

Ind. Gov't. - "Carmel retirement community protests bond deal for what it calls a competitor"

Long and comprehensive investigative story today in the Indianapolis Star, reported by Alex Campbell.

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

Law - Subject of movie "Shattered Glass" may win California law license

Long, interesting story by Bob Egelko in the San Francisco Chronicle.

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

Ind. Law - A second challenge to Indiana's 2011 immigration law filed last week in federal court

This time it was in the ND Indiana. Readers will remember that the suit filed immediately after the end of the 2011 session in the SD Indiana challenging SEA 590, leading federal Judge Barker to issue a preliminary injunction on June 24, 2011.

Here are two stories about last week's suit:

"Group challenges Indiana immigration law in federal court " in the Gary Post-Tribune, reported by Teresa Auch Schultz.

"E.C. nonprofit sues state, local officials over immigration law,"in the NWI Times, reported by Marisa Kwiatkowski. It begins:

HAMMOND | An East Chicago-based organization has issued a second legal challenge to Indiana's new immigration law, federal court records state.

Union Benefica Mexicana filed a lawsuit Tuesday against state and region officials, claiming portions of Senate Bill 590 are unconstitutional. The bill, which passed earlier this year, requires most Indiana businesses to check the immigration status of new employees, forbids distributing state aid to illegal immigrants and prohibits local governments from refusing to abide by federal immigration law.

Earlier this year, the American Civil Liberties Union filed a federal lawsuit in the U.S. District Court for the Southern District of Indiana to challenge the legislation. That lawsuit still is pending.

Indiana Attorney General Greg Zoeller, who was named in Union Benefica Mexicana's lawsuit, said his office will seek to postpone both federal lawsuits until after the U.S. Supreme Court considers the challenge to Arizona's immigration statute.

Posted by Marcia Oddi on Monday, December 26, 2011
Posted to Indiana Courts

Law - "Two Lawyers Strike Gold In U.S. Disability System"

That is the title to a very lengthy story by Damian Paletta and Dionne Searcey in the Dec. 22, 2011 Wall Street Journal. The story begins:

Lawyers Harry and Charles Binder began representing applicants for Social Security disability benefits in the 1970s, when the field was a professional backwater. Last year, their firm collected $88 million in fees for guiding clients through the system, government data indicate, making it the nation's largest Social Security disability advocate by far.

"We'll deal with the government," a cowboy-hatted Charles Binder proclaims in his firm's ubiquitous television ads. "You have enough to worry about."

Having firms like Binder & Binder deal with the government was supposed to be part of the solution for a federal disability-insurance system staggering under a growing backlog of cases. The Social Security Administration figured cases would move through the pipeline faster if more claimants were guided by experts. So in 2004 the agency and Congress relaxed rules governing representation, making it easier for nonlawyer advocates to get paid. Binder swiftly hired lower-paid nonlawyers to handle cases, ramped up advertising and began processing far greater numbers of clients.

The rise of such specialty firms now is testing the system in new ways.

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

Law - "Artists: Can You Be Sued for Including a Real Person in Your Painting?"

Daniel Grant, identified as "Arts writer," has this long article on the Huffington Post. A few quotes:

[T]he growing sense that one's likeness is a "property" that can be commercially exploited has led many artists to feel less secure in pursuing realistic figurative images. * * *

Unlike a federal statute, which supercedes state laws, the right of publicity (and of privacy) is wholly determined by each state, and there is significant variation from one to the next. Some state publicity statutes make specific exceptions for artwork, while others do not. Indiana exempts artwork in its statute, but New York case law has specifically extended the law to protect the first amendment rights of artists, which includes multiples (print or sculpture editions) while Indiana's law only stipulates one-of-a-kind pieces. On the other hand, California allows the image to appear on a t-shirt or some more commercial medium, although in limited circumstances. California, Florida, Indiana, Kentucky, Nebraska, Nevada, Oklahoma, Tennessee, Texas and Virginia allow publicity rights to be transferred.

A number of states hold that the right of publicity ends with the subject's death, while almost all the states with publicity rights statutes permit the right to be inherited. Florida, for example, extended the right of publicity to 40 years following the individual's death, while Indiana and Oklahoma allow 100 years, and Tennessee crafted its law in 1984 to enable heirs, such as Elvis Presley's, to control the use of a name and a likeness indefinitely. In addition, Washington's and Indiana's statutes provide retroactive publicity rights protection of 50 and 100 years, respectively. State right of publicity laws include minimum or statutory penalties for unauthorized use of a name or likeness -- California's is $750, while Indiana's is $1,000, Washington's is $1,500 and Texas' is $2,500 -- as well as reasonable lawyer's fees and possible punitive damages.

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

Saturday, December 24, 2011

Ind. Gov't. - "Steelmaker, others oppose Indiana Gasification contract"

For background to this story, start with this Nov. 25, 2011 ILB entry.

Keith Benman of the NWI Times reports today:

A flurry of appeals have been filed in response to state regulators' Nov. 22 approval of a 30-year-deal to have a state agency buy synthetic natural gas and charge NIPSCO and other utility customers for any losses.

The issue as laid out in appeals filed by ArcelorMittal USA, as part of a group of industrial customers, consumer groups and utilities, revolves around exemptions for large industrial customers.

ArcelorMittal, through the industrial group, argues the exemption is not guaranteed by the Indiana Utility Regulatory Commission's order in the case, although that was the clear intent of state laws paving the way for the 30-year contract.

Consumer groups and utilities are basically arguing the opposite, with their briefs stating the exemption is in fact so broad it could lead to ever escalating natural gas bills for residential and small business customers.

All parties are planning to appeal the commission's final order in the case to the Indiana Court of Appeals, according to briefs filed this week with the Indiana Utility Regulatory Commission. * * *

The state's 1.7 million utility customers will get surcharges on their bills to make up 100 percent of the difference anytime the price of the synthetic natural gas produced at the plant is above the price of natural gas on the open market. If the price of synthetic gas drops below that of natural gas, utility customers will get a bill credit for 50 percent of the difference. * * *

Vectren, one of the state's largest natural gas utilities, warns of a possible "death spiral" for customers and utilities if the Indiana Utility Regulatory Commission's order is allowed to stand. Vectren states in its appeal that the state's utility customers potentially could be on the hook for up to $2 billion in losses for the gasification plant.

Posted by Marcia Oddi on Saturday, December 24, 2011
Posted to Indiana Government

Law - Still more on "The Price to Play the ABA's Way"

Updating earlier ILB entries, David Segal of the NY Times reported Dec. 22nd in a story beginning:

A law school in Tennessee that was denied accreditation by the American Bar Association sued the organization on Thursday, accusing it of antitrust violations and of depriving the school of due process.

The Duncan School of Law in Knoxville, Tenn., whose quest for A.B.A. approval was the subject of an article in The New York Times on Sunday, learned on Tuesday that its application had been turned down. It filed its case in the United States District Court for the Eastern District of Tennessee.

The A.B.A.’s decision was a major blow to Duncan, which is two years old and has 190 students. The association is the government-endorsed regulator of law schools and without the group’s blessing, Duncan students face severely limited career options. All but a handful of states require a diploma from an A.B.A.-accredited school in order to sit for the bar and practice.

From later in the story:
Specifically, the council found that Duncan, which is part of Lincoln Memorial University, fell short of a standard that prohibited the school from enrolling students who did not appear “capable of satisfactorily completing its educational program and being admitted to the bar.” The standard, say legal scholars, is to protect students from schools that are trying to cover their costs by admitting people who are unlikely to succeed.

“What is critical to understand here is that the council has a duty to prospective students when it grants a seal of approval,” said Stephen Gillers, a New York University law professor and expert on legal ethics. “Their interests may not always align with the interests of the school in winning approval. The people who run the school and the students they want to attract are two different constituencies. The council’s primary duty is to the students.” * * *

What are the odds of Duncan prevailing with this lawsuit? Worse than dim, predicted Professor Gillers.

“The lawsuit is doomed,” he said. “The antitrust argument seems to be that the A.B.A. is limiting the number of law schools. But there are 200 A.B.A.-approved law schools, so if the council’s secret agenda is to limit competition, it’s doing a lousy job.”

Mr. DeBusk, Duncan’s principal backer, appears undaunted. Mr. DeBusk, the founder of a medical device company who was raised in a trailer home in Kentucky, said the school was part of his mission to bring education to the people from the Appalachian Mountains. On Thursday, he was in no mood to retreat.

Posted by Marcia Oddi on Saturday, December 24, 2011
Posted to General Law Related

Ind. Gov't. - "Clark airport loses eminent domain lawsuit, owes $600,000"

Ben Zion Hershberg of the Louisville Courier journal reported this story yesterday afternoon. Some quotes:

The Clark County Regional Airport has lost an eminent domain lawsuit — leaving it and the county owing more than $600,000 for about 73 acres the airport took in 2009 to prepare for a runway expansion.

The airport already has paid about $200,000 for the land, based on appraisals that it and a trial court had obtained.

“It is very concerning in the situation we’re in,” said Clark County Council President Kevin Vissing, referring to the county’s continuing financial problems. “It keeps pouring on.” * * *

In a Clark Circuit Court trial last year, a jury ruled that the land was worth $865,000, based largely on the testimony of an appraiser for Dreyer, who pointed out that it is zoned for light industrial use even though it’s now farm land.

Appraisers for the airport said the land was worth $205,000 to $260,000 because it was in a flood zone and could be used only for agricultural purposes.

The airport asked the Indiana Court of Appeals to overturn the circuit court ruling. But on Dec. 14 the appeals court upheld the award, saying the jury properly based its judgment on the “highest and best use” of the property.

Alan Conner, a member of the board of directors that oversees the airport, said there are no plans to appeal the decision.

Here is the Dec. 14, 2011 COA NFP opinion, Clark County Board of Aviation Commissioners v. Margaret A. Dreyer.

Posted by Marcia Oddi on Saturday, December 24, 2011
Posted to Indiana Government

Friday, December 23, 2011

Ind. Gov't. - "AG to assert legal authority in bringing Recount Commission appeal"

Updating this ILB entry from earlier today, the AG has now issued this release, that begins:

Zoeller: Commission need not meet first for AG to file appeal

INDIANAPOLIS - Concluding that he need not wait for the Indiana Recount Commission to reconvene first, Indiana Attorney General Greg Zoeller announced today that he will file an appeal on behalf of the Recount Commission. On Thursday, a Marion County court reversed the commission's unanimous decision of last June on candidate Charlie White's ballot eligibility and found White ineligible for the 2010 ballot. Zoeller, who represents the Recount Commission and other state administrative boards, will seek appellate review of the Marion County court's ruling in a higher court.

"My office ultimately represents the State and the public interest, and as the State's chief legal officer it is not necessary to wait to appeal until the Recount Commission can meet and vote on seeking an appeal. The Attorney General's Office already has the independent authority to assert the legal interest of the State and bring some clarity and certainty out of the confusion," Zoeller said. * * *

The Attorney General's Office represents the Indiana Recount Commission and does not represent Charlie White as a candidate or an individual. The State's motions to trigger the process of an appeal to a higher court will be filed soon.

Perhaps confusing, as the Recount Commission is the Attorney General's client, and a client normally has some say ...

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

Vacancy on Supreme Court 2012 - How many applicants will apply for the vacancy created by Chief Justice Shepard's retirement?

Re the poll at the end of this ILB entry from Dec. 21st, the results show somewhat more than half the respondees anticipate 40 or fewer applicants. Here is a pie chart of the results.

Posted by Marcia Oddi on Friday, December 23, 2011
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - More on "Ind. AG to challenge order that Daniels testify "

Updating this ILB entry from Dec. 17th, and this press release from AG Zoeller headed "AG seeks to intervene in appeal of Governor deposition order," which includes links to the AG's brief, Mary Beth Schneider of the Indianapolis Star reported late this morning:

A Marion County judge has granted a stay of his order that Gov. Mitch Daniels be deposed by attorneys for IBM in the lawsuit over the state's cancellation of the computer giant's contract to modernize the welfare application process here.

Judge David Dreyer's decision allows for the state to appeal his order that the governor face questioning by the attorneys.

The judge also denied a request by Indiana Attorney General Greg Zoeller to intervene in the case, saying it was not timely.

As readers may recall, FSSA is not being represented by the Attorney General in this lawsuit, but instead by a private law firm. This ILB entry from Sept. 21, 2011 is headed "FSSA to pay Barnes & Thornburg over $8 million thru June 2012."

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

Ind. Decisions - More on "Judge says White ineligible to serve as Secretary of State"

Updating yesterday's ILB entry, this morning Charlie White's newly hired attorney, Jonathan P. Sturgill, filed this 3-page motion "to stay proceedings of the Indiana Recount Commission and enforcement of Opinion and Judgment entered Dec. 21, 2011."

Judge Rosenberg's notice in response:

On December 22, 2011, this Court entered judgment in this cause, ordering the Indiana Recount Commission to declare Respondent Charlie White ineligible to hold the office of Secretary of State and to certify the election of Vop Osili. On December 23, 2011, White filed a Notice of Appeal and a Motion for Stay Pending Appeal.

The Motion for Stay is set for hearing on December 29,2011 at 9:30 A.M. The Court stays all proceedings, as well as enforcement of its Judgment, until the Motion for Stay is disposed of.

Eric Bradner of the Evansville Courier Press has just posted a must-read story that gets to the heart of the issues. It begins:
INDIANAPOLIS — For many of the parties with a close eye on Indiana Secretary of State Charlie White’s legal battle for his political life, it’s not about the officeholder himself. It’s about who would replace him if he is removed from office.

On Thursday, a Marion County judge overturned an Indiana Recount Commission decision and ruled that White was not legally registered to vote. Thus, the judge said, he did not meet the requirements to be on the ballot, and the second-place finisher should take his place.

An attorney for White filed in Marion County for an emergency stay of that ruling, and a judge has frozen the case until a hearing set for Dec. 29 on whether to grant that stay.

Meanwhile, in five weeks, a jury in Hamilton County is set to start considering the criminal case against White, against whom special prosecutors are levying seven felony charges, including voter fraud. If he is convicted of just one of those, he would be booted out of office.

There is one key difference between the two procedures: If he wasn’t qualified for the ballot, a Democrat would take his place; if he is ejected from office because of a felony conviction, Republican Gov. Mitch Daniels would choose his replacement.

“Ultimately, the civil versus the criminal has been who replaces Charlie White when he’s out of office,” said Indiana Democratic Party Chairman Dan Parker, who is pursuing the civil case against White. “We didn’t write that law. The Legislature wrote that law.”

It’s a law the Indiana General Assembly actually changed during its 2011 session. If such a situation occurs in the future, instead of a second-place finisher getting the office, the governor would appoint the replacement.

But that change was not retroactive, which means Democrats still have hopes of gaining the secretary of state’s office.

Posted by Marcia Oddi on Friday, December 23, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Supreme Court accepts certified question from SD Ind.

Kole v. Faultless, an order filed Dec. 20, 2011, begins:

Pursuant to Indiana Appellate Rule 64, the United States District Court for the Southern District of Indiana has certified a question of Indiana state law for this Court’s consideration. The question arises in Kole, et al. v. Faultless, et al., Case No. 1:10-cv-01735-TWP-DML (S.D. Ind.). The question, which we have slightly rephrased, is:
May a political unit reorganize into a city under Indiana Code article 36-1.5 (the “Reorganization Act”) in a manner that eliminates voting rights recognized under Indiana Code sections 36-4-5-2 and 36-4-6-3(i), including reorganization as a city with (1) a council elected entirely at large, and (2) a mayor appointed by that council?
The certified question, which each member of this Court has considered, is hereby ACCEPTED pursuant to Indiana Appellate Rule 64.

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

Courts - "Illinois Supreme Court clarifies law on noncompete agreements"

Ameet Sachdev's Chicago Law, a column in the Chicago Tribune, reports today in a story that begins:

In an era when workers change jobs frequently either voluntarily or involuntarily, clearly defining the rules of a competitive labor market is paramount.

But in Illinois, there was confusion. The law concerning restrictions that companies routinely place on managers and skilled workers to stop them from working for a competitor was in a state of flux.

The legal uncertainty was bad for both employers and workers. Companies are more desperate to protect their business from rivals when the economy is not growing. But in times of high unemployment, management also has the upper hand. Employees are often in no position to negotiate terms of a covenant not to compete, also known as a "noncompete," which is a condition of employment or a severance package.

Given this backdrop, businesses, workers and employment lawyers eagerly looked to the Illinois Supreme Court to provide clarity. Earlier this month, the court addressed the issue, and restored some balance between an employer's interest in protecting confidential information or customer relationships and the freedom to earn a living.

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

Courts - "What is the proper response to a courtroom wailer? Look away? Tell him or her to man up? "

That question is examined in this story today in the NY Times today reported by William Glaberson. Some quotes:

Courthouse regulars know the signs: the trembling fingers, the sniffle, the telltale blow of the nose.

Another defendant is sobbing. Whether it is a politician owning up to corruption or a scam artist admitting frittered millions, the weep is a courthouse staple.

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

Stage collapse - More on "Indiana recognizes Brennon's civil union in stage collapse settlement"

Updating this ILB entry from Dec. 20, 2011, Chicago's ABC 7 News last evening had a report with video from Ravi Baichwal, titled "Ind. stage collapse survivor talks about settlement." Some quotes:

December 22, 2011 (CHICAGO) (WLS) -- In an exclusive interview, the same-sex partner of a Chicago woman killed in last summer's stage collapse in Indiana is talking to ABC 7 about receiving a settlement from that state.

Some believe it's a step towards legalizing civil unions in Indiana, but the state says the settlement is strictly a legal matter. * * *

Brennon received $307,861 in compensation; Indiana is awarding Santiago's estate for the accident, plus $114,000 for her own injuries. Indiana insists the larger award stems simply from Brennon's role as Santiago's executor. * * *

Attorney Kenneth J. Allen says Indiana's money serves as a tacit acknowledgement of the validity of the civil union Brennon and Santiago consummated in June, when it became legal in Illinois.

"It is precedent-setting because had Christina died without a spouse or widow then her claim would be worthless in Indiana or at least capped beneath what they paid," said Allen.

But Indiana does not allow civil unions nor their recognition from other states. The legislature in fact last spring voted to amend the state constitution to ban gay marriage and deny recognition of out-of-state same-sex unions.

"Those sorts of decisions, as to what to recognize, what not to recognize and so forth, are made by the Indiana legislature, which passes the laws," said Bryan Corbin, Indiana attorney general spokesman.

See also the last part of this ILB entry from Sept. 23, 2011.

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

Thursday, December 22, 2011

Ind. Decisions - "Judge says White ineligible to serve as Secretary of State" [Updated]

Good coverage in this 6:11 pm version of Eric Bradner's story in the Evansville Courier & Press. A sample:

“In all likelihood, the Indiana Supreme Court is going to end up taking this up and providing us all with some direction – which would be welcome, frankly,” said Tom Wheeler, who chaired the Indiana Recount Commission earlier this year.

Rosenberg’s decision sends the case back to the commission, which is a part of the secretary of state’s office, with instruction to remove White from office and install Osili in his place.

The steps the Recount Commission must take to deal with Rosenberg’s ruling get complicated.

Wheeler’s capacity, he said, is not quite clear. He was appointed to lead the panel when White, who would otherwise have been the chairman, removed himself. But once the panel made its decision, it – and his position – dissolved.

“It stopped as a matter of law. Right now there is no Recount Commission; there is no chair of the Recount Commission,” he said.

Wheeler, who was appointed by Indiana Republican Party Chairman Eric Holcomb to replace White, who would normally serve on the panel, said he would call for a meeting, which would require 48 hours’ public notice ahead of time, if he could.

“I’ve asked the attorney general’s office for an opinion as to whether I am chairman or not; whether I can convene a meeting or not,” Wheeler said. “Am I in? Am I out? If I’m out, does the Republican Party chair reappoint a chairman?”

See ILB entry from earlier today, which links to an OCRed version of the opinion.

[Updated on Dec. 23] Here is today's lengthy Indianapolis Star story, reported by (Rolling Stone fan-girl) Mary Beth Schneider.

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

Ind. Decisions - Still more on "Judge: DOC Violating Law By Not Offering Kosher Meals"

Updating this May 10, 2011 entry re Judge Magnus-Stinson's 28-page, Nov. 4, 2010 opinion in Willis et al. v. Comm., IDOC that the Indiana Department of Correction is violating the law by not offering kosher meals to prison inmates whose religious beliefs require it, it turns out the State is still not complying with the opinion - here is a news release issued today by the Indiana ACLU:

ACLU Indiana Says Dept. of Correction in Contempt

Indianapolis -- On behalf of four Indiana prisoners, the American Civil Liberties Union of Indiana filed a motion today asking the U.S. District Court in Indianapolis to hold the Indiana Department of Correction in contempt for not providing kosher diets to prisoners.

According to Ken Falk, legal director for the ACLU of Indiana, the DOC has failed to comply with a December 2010 decision handed down by the District Court requiring that kosher diets be provided to prisoners whose sincere religious beliefs require such a diet. The ACLU motion seeks remedies for the four prisoners themselves and on behalf of other Indiana prisoners facing similar religious interference.

"The court's judgment in this case is clear, and the DOC is not free to disregard it," said Falk. "The DOC does not have the right to deny these prisoners an intrinsic element of their religious beliefs."

Falk added that the DOC lack of compliance with the 2010 decision also violates a federal statute, called the Religious freedom Restoration Act of 1993, which prohibits the imposition of unjustified burdens on the ability of prisoners to worship. The prisoners seeking enforcement of the court's judgment have diverse religious beliefs and reside in correctional facilities in Michigan City, Pendleton and Putnamville.

The motion to intervene, Matson Willis, et al. v. Commissioner, Indiana Department of Correction, et al, was filed in the Indianapolis Division of the U.S. District Court, Southern District of Indiana, under cause number 1:09-cv-815 JMS-DML.

"The ACLU of Indiana is dedicated to defending the rights of all Indiana residents," said Gilbert Holmes, ACLU of Indiana executive director. "Religious freedoms are fundamental to our rights as Americans, and even those who are incarcerated still possess a measure of these rights."

Posted by Marcia Oddi on Thursday, December 22, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Trial Court orders SOS Charlie White removed from office

In an 8-page opinion filed today, Judge Louis Rosenberg ruled:

Based on submissions of the parties mentioned above and for the foregoing reasons, the Court REVERSES and SETS ASIDE the decision of the Indiana Recount Commission. The Court GRANTS the Election Contest of the Indiana Democratic Party and REMANDS the matter with instructions to said Commission to declare that Charlie White was not eligible to be a candidate for the office of Secretary of State and to certify the candidate who received the second highest number of votes, Vop Osili, as Secretary of State.

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

Ind. Decisions - "South Bend appealing judge decision on Family Dollar property"

Here is a long list of earlier ILB entries on the Family Dollar site case. Today the South Bend Tribune has a brief story, reporting:

It appears the legal battle over the former family dollar site in downtown South Bend is not over. The city is appealing a federal judge's ruling.

Earlier this week the Common Council made the final vote for the sale of the property to the Catholic Diocese for the new St. Joseph's High School, after the school won the land at auction.

A lawsuit over the separation of church and state forced the city to put the land up for auction, after initially buying it with plans to transfer it to the catholic school for $1.

City attorney Chuck Leone tells WSBT the city is appealing he court's decision that the sale was unconstitutional. Leone hopes the appeal will clarify how the city can work with religious organizations on economic development projects in the future.

Posted by Marcia Oddi on Thursday, December 22, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - More on: "Voucher savings? Don't count on it"

Updating this ILB entry dated Nov. 14th, quoting a story in the Fort Wayne Journal Gazette, where Niki Kelly wrote that: "Hoosier students are playing a variation of musical chairs under Indiana’s new voucher program, but this version has financial implications for the state and Indiana schools," Tom Coyne of the AP writes today:

Private schools that saw enrollment swell this year because of Indiana’s sweeping school voucher program fear they could see some of those gains erased next year as parents paying their own way instead enroll their children in public school so they can qualify for a voucher the following year.

The vouchers allow families to use taxpayer money to send children to private schools and are worth on average more than $4,000 a year. The law was passed so late in the last legislative session that most parents didn’t know about the provision. Private school officials say parents are aware now.

“Principals are telling me that now that the parents know that others are coming in on these scholarships and that they might qualify as well, they are talking about leaving for the next school year,” said Babrara O’Block, superintendent of schools in the Catholic Diocese of Gary.

Posted by Marcia Oddi on Thursday, December 22, 2011
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case today

In M.B. v. Hamilton SE Schools (SD Ind., Pratt), a 27-page opinion, Judge Gottschall (Honorable Joan B. Gottschall, United States District Judge for the Northern District of Illinois, sitting by designation) writes:

Damian Berns and Amy Berns, on behalf of their son, M.B., appeal the district court’s entry of summary judgment in favor of the Hamilton Southeastern Schools and Hamilton-Boone- Madison Special Services (collectively, the “School”), arguing that they are entitled to reimbursement for private education, therapy, and evaluation expenses, as well as their attorneys’ fees, because the School violated the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1491 (the “IDEA”), and the provisions relating to special education in the Indiana Administrative Code, 511 Ind. Admin. Code § 7 (2007), by failing to provide M.B. with a free appropriate public education (or “FAPE”). For the reasons that follow, we affirm. * * *

The hearing officer, the Board, and the district court unanimously agreed that the School did not deny M.B. a free appropriate public education. Given both Rowley and our standard of review, we cannot disagree with that conclusion. Thus, this court affirms the judgment of the district court.

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

Ind. Decisions - Court of Appeals issues 1 today (and 19 NFP)

For publication opinions today (1):

In Carl A. Staples v. State of Indiana , a 5-page opinion, Judge Friedlander writes

Did the trial court abuse its discretion by concluding that Staples had committed a crime of domestic violence thus rendering it illegal for him to possess a firearm? We affirm. * * *

Staples argues that the trial court abused its discretion by entering its determination that he had committed a crime of domestic violence because he was convicted of class A misdemeanor battery and not domestic battery. This argument fails, however, because by statute a crime of domestic violence is defined as having particular elements committed against persons who have a particular relationship with the defendant. I.C. § 35-41-1-6.3. A conviction for domestic battery is not a prerequisite for a determination that the defendant committed a crime of domestic violence. * * *

Essentially, Staples contends that there was no evidence to establish that they were members of the same household. This argument implies that there must be direct evidence of that relationship. Such is not the case. Circumstantial evidence is sufficient to sustain a conviction if the trier of fact finds that it establishes the defendant’s guilt beyond a reasonable doubt.

NFP civil opinions today (6):

Nicole Nelson v. Review Board of Workforce Development and Madison Center, Inc. (NFP)

Gary J. Harrison v. Linda Turner and Deborah Hric (NFP)

In the Matter of the Term. of the Parent-Child Rel. of T.D.T., T.T.T., and M.T., and A.D.T. v. The Indiana Dept. of Child Services (NFP)

Senior Market Development, LLC and Ahren Baumgart v. Titan Financial Group, LLC (NFP)

Mary Lou Duff v. Shawn D. Duff and Rebecca Duff (NFP)

Term. of Parent-Child Rel. of T.C. and K.N.; A.N. (Mother) and J.C. (Father) v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (13):

Valgene Royal v. State of Indiana (NFP)

James Lowery v. State of Indiana (NFP)

Jeremy Dewayne Matheny v. State of Indiana (NFP)

Katie Herrera v. State of Indiana (NFP)

Matthew P. Philbee v. State of Indiana (NFP)

Stephen N. Kohlmeyer v. State of Indiana (NFP)

Dewayne A. Dunn v. State of Indiana (NFP)

George Parker v. State of Indiana (NFP)

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

Roy N. Viverette, Jr. v. State of Indiana (NFP)

Nathaniel Bobo v. State of Indiana (NFP)

Curtis W. Birner v. State of Indiana (NFP)

Shawn Thomas v. State of Indiana (NFP)

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

Ind. Gov't. - First hand experience with new parking meters!

This noon a friend and her daughter picked me up and we drove down to Bazbeaux on Massachusetts for pizza. We parked on Mass. Ave. at one of the poles with the numbered arrows. We joked that we had to be careful to get the right number and then to push all the buttons at the meter box so the payment would register correctly. We put in enough quarters to cover an hour and 30 minutes.

When we came out a little over an hour later there was a ticket on the car! Typed in the pole number at the box to check, and sure enough, there was almost half an hour of time left! Rechecked everything to be sure.

So I would consider this a rip-off, and expect we are far from the first parkers this has happened to ... What are your options? There does not seem to be a reasonable choice other than to simply pay the $20 for the unwarranted ticket! I know I would hesitate about parking on Massachusetts again ...

Posted by Marcia Oddi on Thursday, December 22, 2011
Posted to Indiana Government

Vacancy on the Supreme Court 2012 - Governor appoints Jean Northenor to the JNC, for a 3-year term beginning Jan. 1st

Announced by the Governor's office this morning:

Jean Northenor, of Warsaw, retired as vice president for marketing, human resources, maintenance and construction following an 18-year career at Lake City Bank. She replaces Mike Gavin on the commission.
This information supplements paragraph 6 of Prof. Shumm's entry yesterday with respect to the membership of the Judicial Nominating Commission. It means that 2 of the 3 citizens members of the Commission will be women, at least for the next two years. Under the operative statute, the citizen members are appointed for a three-year term by the Governor, on a staggered basis.

Posted by Marcia Oddi on Thursday, December 22, 2011
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - "Indiana's Transparency Portal is one of the best websites in the nation for state government records

So reports Dan Carden today in the NWI Times. Some quotes:

Sunshine Review, a nonprofit organization that evaluates government transparency, said Indiana's Transparency Portal, in.gov/itp, is one of the best websites in the nation for state government records.

Reviewers praised Indiana for using a single website to house data on the state's budget, elected and administrative officials, state audits, contracts, employee salaries, taxes and other public records.

State Auditor Tim Berry, who manages the website, said it was established to help Hoosiers know what their state government is doing.

"During my time as auditor of state, I've made a pledge to Hoosiers that their government will be open and accessible," said Berry, a Republican. "Citizens need to know that the government's business isn't being conducted in the shadows."

Posted by Marcia Oddi on Thursday, December 22, 2011
Posted to Indiana Government

Ind. Decisoins - "High court disciplines city lawyer: Suspended 6 months after series of errors, deficiencies"

Rebecca S. Green of the Fort Wayne Journal Gazette, in a story today, adds background to the 2-page disciplinary order issued by the Supreme Court Dec. 8, 2011 in In re Clifton. From today's story:

FORT WAYNE – The Indiana Supreme Court has suspended Fort Wayne attorney John G. Clifton from the practice of law for 180 days because of his failure to competently represent his clients.

In an order issued this month, the state’s highest court said Clifton also failed to keep a client reasonably informed about the status of a case, failed to explain a matter well enough for a client to make an informed decision, knowingly disobeyed an obligation under the rules of a tribunal and engaged in conduct prejudicial to the administration of justice. * * *

In October 2006, Clifton told the Allen County Public Defender’s Office he was available to handle criminal appeals but was inexperienced in appellate law, according to the Supreme Court’s order.

In seven cases during one year, Clifton committed numerous violations of appellate rules that were “substantial, glaring and flagrant,” according to court documents.

In one case, an appeal of a Class B felony robbery conviction, Clifton’s mistakes were noted in a footnote.

“Although we could dismiss his appeal for a flagrant violation of our appellate rules, we choose to exercise our discretion and address the issues presented,” Court of Appeals Judge Ezra Friedlander wrote.

In an appeal handled by Clifton on behalf of Todd Anderson, convicted of attempted rape and attempted criminal deviate conduct, Friedlander did not bother with the footnote.

In that case, the judge noted his frustration in the body of the opinion. The name of the person bringing the appeal is used when referencing the appeal because it is his case.

“(W)e feel compelled to address at least some of the glaring deficiencies in (Anderson’s) appellate materials,” Friedlander wrote. “In addition to providing no citations to the record, Anderson makes no attempt to provide us with the facts relevant to the three (poorly phrased) issues he presents for review. Rather, he merely offers a recitation of the charges filed against him … Were it not for the state’s thorough brief and our own review of the record, we would not even be able to begin to consider much of Anderson’s appellate arguments.”

Friedlander then noted that parts of the appeal documents were merely cut-and-pasted into the body of the document, and the issues were “difficult to decipher,” according to court documents.

In addition to Allen County, Clifton provides public defense work in surrounding counties.

Posted by Marcia Oddi on Thursday, December 22, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Trial in Delaware County on suit that seeks to overturn smoking ban there

Updating this ILB entry from Dec. 17th, the Muncie Star Press has an editorial today headed "Court's ruling might not settle smoking ban issue." Some quotes:

Delaware County's ban on smoking in public places survived its latest legal challenge, but the issue might face additional challenges.

Circuit Court 1 Judge Marianne Vorhees ruled in favor of the Delaware County commissioners and health board, denying a permanent injunction against a smoking ban in bars and fraternities, a ban designed to protect patrons and staff from the harmful effects of second-hand smoke.

The result should not be that surprising, since similar smoking bans have been upheld in locations outside Indiana. But the judge's ruling encouraged the plaintiffs -- Delaware County Licensed Beverage Association, three American Legion Posts, AmVets Post 12 and Low Bob's Tobacco -- to seek a review by a higher court. Vorhees' ruling noted the appellate courts in Indiana have not addressed this issue.

The linchpin over what happens next could lie in the state legislature. Lawmakers seem willing to act on a statewide smoking ban before the Super Bowl on Feb. 5. What is uncertain, however, is whether there will be exemptions for clubs and organizations, or whether state law would take precedence over local ordinances. And even if the state passes a smoking ban, it could face legal challenges of its own. [ILB emphasis]

Later in the editorial:
One key argument against the ordinance was the harmful effect the smoking ban had on existing bars. Noted in Vorhees judgment was testimony and data showing no bar or restaurant has gone out of business since the ordinance was passed except for one that closed because of other factors. "On the other hand," the judge wrote, "21 new restaurants have opened in Delaware County since the ordinance went into effect, and eight of those serve alcohol."
Here is a link to Judge Vorhees' 10-page ruling of Dec. 21, 2011.

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

Wednesday, December 21, 2011

Environment - "What to Do About Asian Carp? Great Lakes States Can’t Agree"

That is the headline to this comprehensive story by Monica Davey of the NY Times.

Posted by Marcia Oddi on Wednesday, December 21, 2011
Posted to Environment

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Thomas Aufiero v. Daniel Ricks (NFP)

NFP criminal opinions today (6):

Hans Maldonado v. State of Indiana (NFP)

Dominick L. Wilson v. State of Indiana (NFP)

Arthur D. Miles v. State of Indiana (NFP)

Jesse J. Dixon v. State of Indiana (NFP)

Lyndon J. Woodward v. State of Indiana (NFP)

Michael A. Caputo v. State of Indiana (NFP)

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

Ind. Law - Bingham McHale and Greenebaum Doll & McDonald Agree to Merge

From the announcement:

Today at 9 a.m., leaders from Bingham McHale LLP and Louisville-based Greenebaum Doll & McDonald PLLC voted to merge to become Bingham Greenebaum Doll LLP. This decision strengthens the Indianapolis firm’s ability to service clients, especially in the areas of transactional tax and tax controversies, which relate to several timely legislative issues. Unlike many law firm mergers, this one is considered a merger of equals by both parties.

Posted by Marcia Oddi on Wednesday, December 21, 2011
Posted to Indiana Law

Ind. Decisions - Supreme Court filed a second disciplinary opinion yesterday

Now posted, the opinion is in In re Newman, and is a 13-page 3-1 per curiam decision. Some quotes:

We find that Respondent, Lawrence T. Newman, engaged in attorney misconduct by failing to comply with a client's reasonable requests for an accounting of the hours he worked prior to being discharged, by charging an unreasonable fee, by failing to withdraw from representation promptly after being discharged, and by failing to return the client's file after its retention was no longer necessary to secure payment of his fee.

For this misconduct, committed with the motivation of gaining unfair leverage in his fee dispute with his client, we find that Respondent should be suspended from the practice of law in this state for at least 18 months without automatic reinstatement. * * *

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

David, J., did not participate in this case.

Rucker, Justice, dissenting in part. [J. Rucker's dissent begins]

Because there is insufficient evidence to support a violation of Indiana Professional Conduct Rule 1.5(a), and because the sanction imposed on the Respondent is based in part on a violation not charged by the Commission, I respectfully dissent.

Posted by Marcia Oddi on Wednesday, December 21, 2011
Posted to Ind. Sup.Ct. Decisions

Vacancy on Supreme Court 2012 - To Reapply or Not Reapply…?


By Professor Joel Schumm, Indiana University Robert H. McKinney School of Law

As noted in this post, the Judicial Nominating Commission is now accepting applications for the vacancy created by Chief Justice Shepard’s impending retirement. The press release notes three days (February 8-10) for initial interviews and two days (February 22-23) for second round interviews. This suggests the Commission may be expecting a record number of applicants.

Upon the announcement of Chief Justice Shepard’s retirement, a reporter asked me if selecting his replacement would be a straightforward process with the same applicants from the 2010 Boehm vacancy simply reapplying. I responded no, that I anticipated many new applicants, which have since been discussed here and here. Although all of these individuals will not apply, other lawyers and judges and lawyers from around the state surely will. The focus of this post, however, is on re-applications.

Last summer 34 individuals submitted applications for the vacancy created by Justice Boehm’s retirement. Each was invited to a twenty-minute interview (over a two-day period) before the Commission. Of the 34 applicants, 25 received bad news within a couple of hours of the end of interviews; they were not one of the nine semi-finalists who would be invited for a second interview. During the second round of interviews, the nine were winnowed to three finalists (then-Judge Steve David, Judge Robyn Moberly, and Karl Mulvaney), whose names were submitted to the Governor.

So, how many of the 33 previous unsuccessful applicants will reapply? I expect many. After all, re-applying is easy. Although the application form is long and takes a great deal of time to prepare, previous applicants can easily update their applications with only a minimal investment of time and energy.

Second, most applicants report the process is a very pleasant one. The Commission members are well-prepared, respectful, and appear genuinely interested in learning more about the candidates. Many applicants are profiled by local or regional media, which is overwhelming positive press.

Third, although rejection is never pleasant, persistence has paid off in the past for members of the Court of Appeals, some of whom were unsuccessful one or more times before ultimately securing an appointment. Moreover, the Commission in 2012 will be very different from the one in 2010. Only three of the seven commission members from 2010 remain in 2012: the Chief Justice, Jim McDonald (the attorney member from the First District), and Fred McCashland (the lay member from the Second District). The two attorney members have been replaced by Bill Winningham (Second District) and John Ulmer (Third District). Of the lay members, Christine Keck (First District) has been replaced by Molly Kitchell, and the Governor must soon replace Mike Gavin (Third District), whose term expires at the end of the year.

Furthermore, although applicants may be primarily interested in a Supreme Court appointment, those from the Second District who are not successful will likely have at least one opportunity to appear again before the same Commission (sans the Chief Justice), which will interview applicants for the expected vacancy created by Judge Darden’s impending age-mandated retirement. Additionally, if Judge Bradford were to be appointed to the Supreme Court, an additional vacancy on the Court of Appeals would be created.

Do not look for 33 repeat applicants, however. Some applicants have surely experienced changes in their life and work situations that would make an appointment to the Supreme Court (or a round of interviewing) less appealing than it was in 2010. A couple years of additional age may change the decision for some as well. Although the mandatory retirement age of Supreme Court justices is 75, an ILB chart from last year demonstrated that most justices are appointed at a fairly young age. Indeed, then-Judge David was 53, the youngest of the three finalists.

Moreover, some applicants may not re-apply because they feel (whether they publicly discuss it or not) scorned, especially if they did not even advance to the second round in 2010.

Finally, publicity may not be viewed as positive for all applicants. The Supreme Court application process is appropriately a very open one, where applications are now posted online and interviews open to the public. The individual selected will play an integral role in determining the law of the state for decades. Other judicial selection processes, however, are not nearly so transparent.

For example, the applicant list for a federal magistrate vacancy is a closely held secret, and the interview process is closed with only the name of the person selected ever revealed publicly. Granted, the individual selected is chosen by and will work for the District Judges and have limited authority. Some suggest the magistrate selection process, which has generated very strong candidates, is essential to the willingness of some highly qualified applicants to apply.

The argument goes that some practicing lawyers do not want to risk offending partners at their firm or clients who may become concerned they are somehow not committed to their practice for the long-term. This may deter some applicants, but last year’s Supreme Court vacancy generated high quality applicants from a number of law firms, including Judy Woods then at Bose McKinney and now at Benesch, Geoff Slaughter at Taft, semifinalist Ellen Boshkoff of Baker & Daniels, and of course finalist Karl Mulvaney of Bingham McHale. I certainly hope individuals of their caliber are in the applicant pool in 2012.

Bottom line: expect several returning applicants and several new ones.

Just how many? What is your guess?
(Poll ends COB Friday, Dec. 23.)



Posted by Marcia Oddi on Wednesday, December 21, 2011
Posted to Vacancy on Supreme Court 2012

Ind. Courts - 7th Circuit opinion by one of our newest district court judges [Updated]

Broaddus v. Shields is not an Indiana case, but the 7th Circuit opinion today is authored by one of our newest judges on the federal bench for the SD Indiana, The Honorable Jane E. Magnus-Stinson, sitting by designation. The 11-page opinion, an appeal out of ND Illinois, involves a dispute between former business partners.

[Updated on 12/22/11] Updating this post from yesterday, today Magnus-Stinson has issued another opinion, this time sitting by designation in a bankruptcy case, In re River-West Plaza.

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

Environment - Reminder: 2011 Edition of Indiana Environmental Statutes 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 Wednesday, December 21, 2011
Posted to Environment

Courts - "The very fine and ideologically unaligned Indiana Law Blog ..."

That wonderful endorsement from the State Bar of Michigan blog introduces their Dec. 5, 2011 post headed "Indiana Supreme Court Compared to Michigan's," quoting extensively from a Nov. 30, 2011 ILB entry headed "Ind. Decisions - Thoughts on yesterday's Supreme Court ruling in Hopper."

Posted by Marcia Oddi on Wednesday, December 21, 2011
Posted to Courts in general

Tuesday, December 20, 2011

Stage collapse - "The list of claimants who were offered and accepted settlements and their settlement amounts"

Updating this ILB entry from yesterday, here is the list of settlement amounts accepted.

Re the far-right column titled "JWF Contribution," the explanation is in the fourth paragraph of yesterday's press release that accompanied this list.

Posted by Marcia Oddi on Tuesday, December 20, 2011
Posted to Stage Collapse

Law - More on "The Price to Play the ABA's Way"

Updating this entry from Sunday, Above the Law reports this afternoon in an entry that begins:

Well that was fast.

Over the weekend, the New York Times unleashed a feature article about the role of the American Bar Association in keeping the cost of legal education absurdly high. The school profiled in that article, which we talked about yesterday, was Duncan Law School, which was seeking provisional accreditation from the ABA.

The article, by legal academia bête noire David Segal, came out in print on Sunday. Everybody talked about it on Monday. And today, on Tuesday, the ABA denied Duncan its provisional accreditation.

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

Stage collapse - "Indiana recognizes Brennon's civil union in stage collapse settlement"

Kate Sosin, Windy City Times, reports:

Indiana State Fair stage collapse survivors, including Alisha Brennon, have accepted a settlement from the state over the accident.

Brennon, who is suing a host of private companies over the disaster that killed her wife, LGBT activist Christina Santiago, has accepted more than $300,000 for the wrongful death of Santiago. The families of the other six victims to die in the collapse have accepted settlements as well.

Brennon has received the same settlement as heterosexual complainants who lost a spouse in the accident, possibly setting a precedent for same-sex partner recognition for wrongful deaths in Indiana, according to her attorney.

Brennon and Allen have said they filed suit to challenge Indiana's lack of recognition for same-sex couples. Brennon and Santiago had a civil union in Illinois, a relationship not recognized under Indiana state law.

Another lesbian client who lost her partner also received the $300,000 settlement for her loss.

Indiana state law caps damages that can be paid for a single incident at $5 million, a law that Allen previously said he would challenge. Between the dozens that filed suit against the state, Brennon and others walked away with [a] percentage of the money.

"The clients were put in a pretty untenable situation," said Brennon's attorney Kenneth Allen, adding that he disagreed with his clients' decision to settle.

Apparently this means there will be no further challenge to the constitutionality of the Indiana Tort Claims Act. See this Nov. 24th ILB entry on the federal suit.

Posted by Marcia Oddi on Tuesday, December 20, 2011
Posted to Stage Collapse

Ind. Courts - More on"Judge hears school-voucher lawsuit"

Updating this ILB entry from yesterday, Tom LoBianco of the AP reported late yesterday on the proceeding:

An Indianapolis judge plans to decide within 30 days whether Indiana’s sweeping new school voucher law violates church-state separation clauses in the Indiana Constitution.

Marion Superior Court Judge Michael Keele heard about two hours of arguments Monday in a lawsuit filed by a group of teachers and religious leaders backed by the Indiana State Teachers Association. The suit claims the law, enacted earlier this year, violates the state Constitution by providing public money to religious institutions. * * *

Indiana Solicitor General Tom Fisher ... and Bert Gall, with the Washington-based Institute for Justice, framed the debate in terms of freedom to choose schools rather than sending money to religious schools.

John West, a Washington lawyer representing voucher opponents, argued that Indiana lawmakers specifically amended the state constitution in 1851 to bar any tax dollars from going to religious schools.

“Do we really think the 1851 constitutional framers would have said: ‘Oh, yeah. That’s fine,’ ” West said of the new voucher law. He argued that giving families the money first then allowing them to pick the school where it went amounted to an end-run around the Constitution.

Keele declined in August to temporarily block the law while it was being weighed in court. Supporters of the voucher law attempted to build on his August decision by arguing that “nothing changed” in the following months to give him any reason to block the law entirely. * * *

West contends the historical context shows that lawmakers were specifically trying to keep tax dollars from flowing to a growing number of Catholic schools that catered largely to Irish and German immigrants.

West wrote in his brief filed with the court that more than 99 percent of the 3,900 students who accepted vouchers this year ended up at religious schools, most of them Catholic.

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

Ind. Decisions - "Jeffrey A. Harkin, Judge of Hammond City Court, is hereby suspended from office without pay for a period of sixty (60) days, commencing at 5:00 p.m. CST 7 on Tuesday, December 27, 2011"

The Supreme Court has issued a 7-page, per curiam ruling in a judicial disciplinary action, In re Harkin. The ILB has had several entries about this matter, the most recent from Nov. 6, 2011. From today's opinion:

From 2005 through March 8, 2011, Respondent dismissed the traffic infraction cases of all litigants who attended the Traffic School and paid the applicable fee, and entered default judgment, imposed fines and court costs, and ordered the suspension of driver’s licenses of all litigants who selected Traffic School but failed to complete the class. He did so, however, without any legal authority to do so. Only the prosecuting attorney had authority to establish a deferral program for traffic infractions. See Ind. Code § 34-28-5-1(h). No statute, Supreme Court rule, or other legal precedent authorized Respondent either to establish a traffic infraction deferral program or to discharge traffic infraction cases without a specific request from the prosecuting attorney.

Beginning in 2006, and then again in 2007, 2008, and 2010, the State Board of Accounts (“SBOA”) issued audit reports indicating that the resolution of traffic infraction cases through the Traffic School did not comply with Indiana Code section 34-28-5-5, which pertains to the payment and depositing of court costs. On at least one occasion, Respondent met with a SBOA representative to discuss the issue and express his disagreement with the SBOA’s interpretation of Indiana Code section 34-28-5-5. He did not, however, seek a second opinion from the Indiana Judicial Center or any other judicial resource about whether the Traffic School program was, in fact, violating state law.

On July 26, 2010, Respondent met with executives from the Lake County Prosecutor’s Office. During the meeting, the Lake County Chief Trial Deputy informed Respondent that the Traffic Court program did not comply with Indiana Code section 34-28-5-1(h) and was not otherwise authorized by law, and the other executives voiced their objections to Respondent’s continued use of the Traffic School program. Respondent, however, continued to offer the Traffic School program to eligible litigants for seven more months. He discontinued doing so only after the Commission’s counsel, on March 8, 2011, informed him of the Commission’s belief that Respondent was abusing his authority by diverting litigants’ cases through a de facto deferral program that was not authorized by the county prosecutor.

The Respondent and the Commission agree that by referring traffic infraction litigants to the Traffic School and then dismissing their cases upon their completion of the program without any dismissal request from the prosecutor, Respondent abused his judicial authority, committed conduct prejudicial to the administration of justice, and violated the Code of Judicial Conduct’s provisions that required him: to “comply with the law,” Ind. Judicial Conduct Rule 1.1 (West 2011) (asterisk deleted); to “act at all times in a manner that promotes public confidence in the integrity, independence, and impartiality of the judiciary,” Jud. Cond. R. 1.2 (asterisks deleted); to “uphold and apply the law,” Jud. Cond. R. 2.2; and to “perform judicial and administrative duties competently,” Jud. Cond. R. 2.5. The parties also agree, in mitigation of these violations, that the Hammond City Court had been referring litigants to Traffic School for decades, and previous judges of that court had not been notified of any concerns about the legality of the program from the Lake County Prosecutor’s Office, the SBOA, or any other entity. Further, deputy prosecutors assigned to the Hammond City Court were aware of the court’s Traffic School program and practice but did not voice any objections to it until the meeting on July 26, 2010. Finally, Respondent has taken measures to address some of the personal issues that may have accounted, in part, for his lack of thoroughness in investigating the concerns brought to his attention about the legality of his court’s Traffic School program when they were raised with him. * * *

The parties agree that the appropriate sanction for Respondent’s misconduct is suspension without pay for sixty (60) days. The Court agrees with the parties that under the circumstances of this case, the disposition they propose is an appropriate result. As we stated recently in another matter, “A suspension from office without pay, regardless of duration, is not a minor sanction. Even more than a public reprimand, any such suspension is a significant blemish on a sitting judge's reputation.” Matter of Hawkins, 902 N.E.2d 231, 246 (Ind. 2009).

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

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

For publication opinions today (3):

Christopher A. Bryant v. State of Indiana - Affirmed.

In Commissioner of Labor on the Relation of Stephen R. Shofstall, Edward C. Posey, and Deborah Posey v. Int'l Union of Painters and Allied Trades, AFL-CIO, CLC District Council 91 , a 19-page, 2-1 opinion, Judge Riley writes:

Appellant-Plaintiff, the Commission of Labor On the Relation of Stephen R. Shofstall, Edward C. Posey, and Deborah N. Posey (collectively, Appellants), appeal the trial court’s summary judgment in favor of Appellee-Defendant, International Union of Painters and Allied Trades AFL-CIO, CLC District Council 91 (the Union), finding that Appellants are not entitled to accrued vacation pay. * * *

Based on the foregoing, we conclude that the trial court erred in awarding summary judgment in favor of the Union. We reverse and enter summary judgment in favor of Appellants and remand with instruct to the trial court to calculate Appellants’ vacation pay and to consider liquidated damages and attorney fees. In addition, we conclude that the trial court abused its discretion when it refused to strike certain paragraphs in Reis’ affidavit. Reversed and remanded with instructions.

MATHIAS, J. concurs
FRIEDLANDER, J. dissents with separate opinion [that begins, at p. 16]I believe the trial court was correct in all respects and therefore respectfully dissent. I will not undertake a detailed summary of what I perceive to be the fallacies in the Majority’s analysis. It suffices to say that, other than on matters of boilerplate law, my views diverge significantly from those of the Majority on virtually all of the positions adopted in route to its conclusions, up to and including the conclusions themselves.

In Lance McCloud v. State of Indiana , a 15-page opinion, Judge Kirsch writes:
In this interlocutory appeal, Lance McCloud appeals the trial court’s denial of his motion to dismiss the charges pending against him because he was not brought to trial within one year of the date he was charged with the offenses. McCloud raises two issues that we consolidate and restate as: whether the trial court erred in denying his motion to dismiss because his right to a speedy trial, provided by Rule 4(C) of the Indiana Rules of Criminal Procedure and the federal and state constitutions, was violated. * * *

Although it weighs in McCloud’s favor that, while in Indiana, he consistently and repeatedly sought to bring his case to trial, the length of the delay was not excessive, the cause of the delay was due to McCloud’s own act, his federal incarceration, which he did not take any affirmative steps to disclose to the State, and he has not shown or even alleged any prejudice because of the delay. We find that, on balance, the Barker factors indicate McCloud’s federal and state constitutional rights to a speedy trial were not violated. Accordingly, the trial court did not err by denying his motion to dismiss the charges pending against him because of an alleged constitutional violation. Affirmed.

NFP civil opinions today (10):

James R. Lockhart, Jr. v. Lisa (Lockhart) Guyer (NFP)

In the Matter of the Involuntary Term. of the Parent-Child Rel. of H.W. and H.S.; T.S. v. Indiana Dept. of Child Services (NFP)

Gary Joe Harrison v. Bill Wilson (NFP)

Cherokee Development, Inc. v. Ohio Farmers Ins. Co. (NFP)

In Re: The Matter of the Term. of the Parent-Child Rel. of D.F. & R.F. and B.G. v. Indiana Dept. of Child Services (NFP)

Derrick D. Jeter, M.D. v. Medical Licensing Board of Indiana (NFP)

S. (M.) O. v. S.M. (NFP)

Great Hospitality Services, Inc. v. Karl Bauer (NFP)

In Re: The Paternity of P.B.; D.B. v. M.B. (NFP)

C.C. v. Review Board of the Ind. Dept. of Workforce Development and Employer (NFP)

NFP criminal opinions today (5):

William Taylor v. State of Indiana (NFP)

Christopher W. Hovis v. State of Indiana (NFP)

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

Andrew M. Royer v. State of Indiana (NFP)

Thomas L. Kessinger v. State of Indiana (NFP)

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

Law - "An iPhone App for PACER"

Joe Palazzolo reviewed this new iPhone app yesterday in the WSJ Law Blog. It is "FedCtRecords, a new iPhone app crafted around PACER." I downloaded it and can recommend it.

The post also points out that another resource, the PACER Case Locator, which lets you search all courts at once, is now optimized for mobile devices. Link to the optimized version here.

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

Courts - "Sentencing Proportionality in the States"

Sentencing Law and Policy points to "this notable student note now available via SSRN by Gregory Schneider."

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

Ind. Gov't. - More on "Charter school association sues over FWCS building"

Updating yesterday's ILB entry, Rebecca S. Green and Patrick Svitek report today in the Fort Wayne Journal Gazette under the headline "Suit filed to cancel transfer of school: Charter group assails airport-FWCS accord." Some quotes from the lengthy story:

The Fort Wayne-Allen County Airport Authority has postponed a decision on whether it would take ownership of a vacant elementary school from Fort Wayne Community Schools.

Monday afternoon's decision came hours after the Indiana Public Charter Schools Association filed a lawsuit against FWCS and the airport authority regarding the property transaction, saying it violated a new state law that required public schools to make vacant school buildings available to charter schools for lease or purchase for $1.

Interesting ...

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

Vacancy on Supreme Court 2012 - "Nepotism bill could restrict Daniels' justice picks"

So remarks Fort Wayne Journal Gazette editorial writer Tracy Warner in this article today:

The search for a new Indiana Supreme Court justice just might include a Daniels.

Not Gov. Mitch Daniels but his sister, Deborah. “For a minute, ignore the name and consider this résumé: partner at a prominent Indianapolis law firm and ‘former U.S. Attorney and U.S. Assistant Attorney General’ with ‘lengthy experience in criminal and civil investigations and public safety,’” writes Joel Schumm, a professor at Indiana University McKinney School of Law, in the Indianalawblog.

Indeed, Deborah Daniels has an impressive résumé and would very likely be considered qualified.

But after the Indiana Judicial Nomination Commission selects three finalists, Mitch Daniels will make the final choice. Could he appoint his sister?

“Concern is properly expressed when a person secures a job because of family connections,” Schumm writes, “but should a family connection preclude a person from a job?”

Perhaps in any other year, Daniels could appoint Deborah Daniels.

But this year, the governor might have a harder time justifying the appointment when he is pushing a bill to restrict nepotism.

On another point, the article continues:
One of Deborah Daniels’ more recent duties has been as a consultant to the Indiana Judicial Center, analyzing data as part of efforts to reform the criminal code.

Advocates want to identify alternate ways to sentence lower-level criminals, with an emphasis on keeping offenders in their home counties.

Gov. Daniels has supported the efforts – but he did not include sentence reform in his legislative agenda for 2012, indicating that opposition from prosecutors has blocked reform.

Posted by Marcia Oddi on Tuesday, December 20, 2011
Posted to Vacancy on Supreme Court 2012

Monday, December 19, 2011

Stage collapse - "Attorney General: 64 claimants accept State Fair settlement offers"

Here is a news release just issued by the AG. More later.

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

Ind. Decisions - "Judge denies Charlie White's motion to dismiss felony charges"

In another trial court election law decision today, Carrie Richie reports, as of 3:08 pm, in the Indianapolis Star:

A Hamilton County judge has denied Indiana Secretary of State Charlie White’s motion to dismiss seven felony charges that were filed against him earlier this year. * * *

Hamilton Superior Court Judge Steven Nation held a hearing on White’s request Dec. 9 and issued an order denying the dismissal today.

Posted by Marcia Oddi on Monday, December 19, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Challenge to election of New Castle mayor Greg York fails

Douglas Walker and Keith Roysdon of The Muncie Star-Press had this report yesterday on the case. It began:

A Delaware County judge is set to rule this week on a bid to overturn Democrat Greg York's landslide victory in last month's mayoral election in New Castle.
Judge Wolf issued her 11-page opinion today. It concludes:
Because of his ownership interest in the 11th Street residence, York had unrestricted access to the home and its contents. He also frequently stated his subjective intent to make that home his principal residence, and he accompanied those statements of intent by sleeping there on average four nights per week during the year preceding the general election, continuously voting from that address, taking his homestead credit on that dwelling (even though doing so on his Westwood property would have saved him considerably more money), keeping personal property there, and receiving personal mail at that address.

For all of the above reasons, the Court finds and concludes that Nipp has failed to meet the burden of proof to demonstrate that York abandoned his 11th Street residence or to prove that York does not meet the constitutional and statutory residence requirements to serve as Mayor of New Castle.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Petition for Election Contest filed by John Mark Nipp is denied, and Greg York is hereby declared by this Court to be duly qualified to assume the office of the Mayor of the City of New Castle.

Posted by Marcia Oddi on Monday, December 19, 2011
Posted to Ind. Trial Ct. Decisions

Law - "Innocent people hurt by flawed system of background checks"

The Indianapolis Star today has an interesting AP story by Jordan Robertson.

However, the original version of the story is nearly twice as long, access it here via CBS News, and here from the Washington Post.

Posted by Marcia Oddi on Monday, December 19, 2011
Posted to General Law Related

Law - "Digital Data on Patients Raises Risk of Breaches"

A quote Nicole Perlroth's long report today in the NY Times technology section:

As part of the 2009 stimulus bill, the federal government provides incentive payments to doctors and hospitals to adopt electronic health records. Some 57 percent of office-based physicians now use electronic health records, a 12 percent jump from last year, according to the Centers for Disease Control.

An unintended consequence is that as patient records have been digitized, health data breaches have surged. The number of reported breaches is up 32 percent this year from last year, according to the Ponemon Institute, a security research group. Those breaches cost the industry an estimated $6.5 billion last year. In almost half the cases, a lost or stolen phone or personal computer was responsible.

Mr. Tripathi describes the days after the theft as a “vortex.” Fresh in his mind was a similar, albeit smaller, breach at Massachusetts General Hospital just months earlier in which a hospital employee left detailed clinical records for 192 patients on a subway. The breach had cost the hospital $1 million in settlement fees.

Posted by Marcia Oddi on Monday, December 19, 2011
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In Capitol Construction Services, Inc. v. Amy Gray, as Personal Rep. of the Estate of Clinton Gray and All One, Inc. , a complex 27-page opinion including a 4-page concurring opinion and multi-page footnotes, Judge Brown writes:

In this consolidated, interlocutory appeal, Capitol Construction Services, Inc. (“Capitol”) appeals the trial court’s grant of partial summary judgment in favor of Amy Gray, as personal representative of the estate of Clinton Gray (“The Estate”). Additionally, Capitol appeals the court’s denial of its cross-motion for summary judgment. Capitol raises three issues, which we consolidate and restate as: I. Whether the court erred in granting The Estate’s motion for partial summary judgment; and II. Whether the court erred in denying Capitol’s cross-motion for summary judgment. * * *

For the foregoing reasons, we affirm the trial court’s grant of partial summary judgment in favor of The Estate and denial of summary judgment in favor of Capitol. Affirmed.

BAILEY, J., concurs.
FRIEDLANDER, J., concurs with separate opinion. [which begins, at p.24] I fully concur in the decision to affirm partial summary judgment in favor of the Estate of Clinton Gray (the Estate) and deny summary judgment in favor of Capitol Construction Services, Inc. I write separately to explain my view that my vote in this case does not conflict with my vote in Hunt Constr. Grp., Inc. v. Garrett, 938 N.E.2d 794 (Ind. Ct. App. 2010), which was vacated and is currently before our Supreme Court upon the grant of Hunt Construction Group’s (Hunt’s) petition for transfer. See Hunt Constr. Grp. v. Garrett, 950 N.E.2d 1212 (Ind. 2011) (petition for transfer granted and opinion at 938 N.E.2d 794 vacated).

In Smith Barney v. Stonemor Operating LLC, et al. , a 9-page opinion on a petition for rehearing, Judge Crone writes:
Appellant Smith Barney has petitioned for rehearing of our opinion in Smith Barney v. StoneMor Operating LLC, 953 N.E.2d 554 (Ind. Ct. App. 2011), in which we affirmed the trial court's denial of Smith Barney's motion to compel arbitration against appellees Independence Trust Company (“Independence Trust”) and StoneMor Operating LLC (“StoneMor”). We grant Smith Barney's petition for the limited purpose of clarifying our analysis and affirm our original opinion. * * *

Regardless of whether a “successor trustee” may be considered a “successor in interest” for purposes of the Client Agreements, the fact remains that Independence Trust did not sign the Client Agreements. In our original opinion, we mentioned “a series of doctrines, based on 'common law principles of contract and agency law,' for binding non-signatories to arbitration agreements.” Smith Barney, 953 N.E.2d at 558 (quoting Ryan, Beck & Co., 268 F. Supp. 2d at 229); see also MAG Portfolio Consultant, GmbH v. Merlin Biomed Grp. LLC, 268 F.3d 58, 61 (2nd Cir. 2001) (summarizing those doctrines as “1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and 5) estoppel”). In its petition for rehearing, Smith Barney does not argue, let alone establish, that any of those doctrines apply.

Based on the foregoing, we grant Smith Barney's petition for rehearing for the limited purpose of clarifying our analysis and affirm our original opinion.

NFP civil opinions today (6):

City of Muncie v. Stanley Benford (NFP)

In the Matter of the Term. of the Parent-Child Rel. of J.B., D.G., and C.W.; and D.G. v. Indiana Dept. of Child Services (NFP)

Erie Ins. Exchange as Subrogee of Welch & Wilson Properties, LLC, d/b/a Hammons Storage and Allianz Global Risks U.S. Ins. Co. v. 500 Rangeline Rd., LLC and HSM Development, Inc. (NFP)

JPMorgan Chase Bank, N.A., s/b/m Bank One, N.A. v. Mike S. Forbing, Successor Trustee of the Jack D. Forbing Revocable Trust (NFP)

Boyer Excavating Corp. v. Shook Construction and Ball State University Board of Trustees (NFP)

Magnolia Health Systems v. Review Board of the Indiana Dept. of Workforce Development and Emma J. Johnson (NFP)

NFP criminal opinions today (3):

Adrian Hulse v. State of Indiana (NFP)

Brian E. Cain v. State of Indiana (NFP)

Roger Ordonez v. State of Indiana (NFP)

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

Ind. Gov't. - "Charter school association sues over FWCS building"

The Fort Wayne Journal Gazette has posted the lengthy press release of the Indiana Public Charter Schools Association. A few quotes:

Russ Simnick, president of the Indiana Public Charter Schools Association (IPCSA), today announced that the IPCSA has filed a lawsuit to stop a transfer of title of a vacant school building to the Fort Wayne-Allen County Airport Authority ("Airport Authority") because it violates a new state law.

The IPCSA, a membership organization of Indiana public charter schools, filed the complaint in Allen County on behalf of its member school, Timothy L. Johnson Academy, and any charter school that may be interested in the building. The IPCSA contends the law gives charter schools the right to lease or purchase vacant school buildings.

A new law passed this year by the Indiana General Assembly, Public Law 91-2011, requires school districts to report vacant school buildings to the Indiana Department of Education (IDOE) and make those buildings available to public charter schools. Timothy L. Johnson Academy stated its interest to IDOE to lease or purchase the vacant Pleasant Center Elementary School, 2323 West Pleasant Center Road, from Fort Wayne Community Schools (FWCS).

Posted by Marcia Oddi on Monday, December 19, 2011
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending December 16, 2011

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Nov. 18, 2011 list.]

Here is the Clerk's transfer list for the week ending December 16, 2011. It is two pages (and 24 cases) long.

One transfer was granted last week:

One transfer was dismissed:

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

Vacancy on the Supreme Court 2012 - Applications for an upcoming vacancy on the state’s highest court are due January 27, 2012

From a press release just posted:

Applications for an upcoming vacancy on the state’s highest court are due January 27, 2012. Today, Chief Justice Randall T. Shepard announced details of the application process for the vacancy that will be available when he steps down from the bench. * * *

The Commission will conduct initial public interviews of qualified candidates in Indianapolis on February 8th – 10th, followed by second interviews on February 22nd-23rd. After the public interviews and Commission deliberations in an executive session, the Commission will publically vote to send the three most qualified names to Governor Mitch Daniels. The Governor will select Indiana's next justice. The Commission will select Indiana’s next Chief Justice after March 4, 2012, but an exact timeline has not yet been determined.

Those interested in applying to be the state’s 107th Supreme Court Justice may contact Counsel for the Indiana Judicial Nominating Commission, Adrienne Meiring, at 317-232-4706. A candidate must be an Indiana resident and must have been a member of the Indiana bar for ten years or an Indiana judge for five years. The annual salary and allowances for a Supreme Court Justice is $156,295.

Here is the application. A quote:
Upon the Commission’s receipt of eleven complete applications and an electronic copy from a candidate, the candidate’s name will be made public. I.C. § 33-27-3-2(d). After the Commission has evaluated each application and determines whether to interview all or some of the applicants, the applications of the candidates to be interviewed become public records and may be posted on the Supreme Court’s website. I.C. § 33-27-3-2(d)(1).

Posted by Marcia Oddi on Monday, December 19, 2011
Posted to Vacancy on Supreme Court 2012

Ind. Courts - "Judge hears school-voucher lawsuit"

From the Fort Wayne Journal Gazette:

A Marion Superior Court judge is set to hear arguments today in a lawsuit challenging Indiana’s new school voucher program.

An official with the Indiana State Teachers Association, the superintendent of Lafayette School Corp. and other plaintiffs charge that the Choice Scholarship Program the General Assembly approved this year violates the state constitution.

John M. West, a Washington attorney who has litigated nearly a dozen cases involving vouchers, will represent the plaintiffs. One of those cases invalidated Florida’s voucher program.

About 4,000 Indiana families are receiving tax dollars to send students to private or parochial schools. Next year, vouchers will be available to as many as 15,000 students.

An Indianapolis Star story adds:
A hearing is scheduled for today in Marion County Superior Court 7 in Indianapolis. * * *

The state contends the voucher system is legal because the state isn’t directly funding parochial schools. Instead, it gives scholarship vouchers to parents, who can choose which school to use them at.

Judge Michael Keele declined to block the law in August, writing that the law “is religion-neutral and was enacted ‘for the benefit’ of students, not religious institutions or activities.”

Indiana’s voucher program is the nation’s largest.

The ILB has many earlier entries on the voucher program, including this one from Aug. 15th on Judge Keele's ruling.

A very long article headed "Indiana Schools Grapple with Voucher Law's Impact", written by Jaclyn Zubrzycki, is available via Education Week.

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

Ind. Gov't. - Gov. Daniels will not pursue sentencing reform this year

That is the word from Eric Bradner, reporting Sunday in the Evansville Courier & Press:

When Gov. Mitch Daniels rolled out his 2012 legislative agenda on Friday, one familiar item was missing: criminal sentencing reform.

The Republican governor has pursued changes to the state's laws, especially when it comes to sentences for drug and theft crimes.

He wants "graduated" sentencing, which would shift low-level offenders into community-based programs, while saving the money the state might otherwise have to spend on new prison construction.

Daniels omitted criminal sentencing reform from his agenda though, he said, because of political obstacles he doesn't think he can work around.

"I'm not as optimistic as I am about these other items. Complete agreement has proved elusive. I've worked on it some this last year, and I just can't report success yet with one critical group," Daniels said.

The group to which he was referring consists of county prosecutors, who have resisted his efforts.

"If we have a breakthrough, I still think it'd be a very useful thing for Indiana to do," Daniels said. "But in all honesty, I think it's less likely than these other items."

Posted by Marcia Oddi on Monday, December 19, 2011
Posted to Indiana Government

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

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

But first, this would be a wonderful time for you to become an ILB supporter in 2012! Please think about supporting the ILB!

From Sunday, December 18, 2011:

From Saturday, December 17, 2011:

Posted by Marcia Oddi on Monday, December 19, 2011
Posted to Catch-up

Ind. Decisions - More on: Upcoming oral arguments this week and next [Updated]

Jon Laramore of B&D has sent me this link, which works. [OK, now it works!]

Also, these which list the Supreme and Appellate courts separately.

Posted by Marcia Oddi on Monday, December 19, 2011
Posted to Upcoming Oral Arguments

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/19/11):

Tuesday, December 20th

Next week's oral arguments before the Supreme Court (week of 12/26/11):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/19/11):

Monday, December 19th

Next week's oral arguments before the Court of Appeals (week of 12/26/11):

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, December 19, 2011
Posted to Upcoming Oral Arguments

Ind. Decisions - Upcoming oral arguments this week and next

The Indiana Court site was redone over the weekend and so far I've been unable to locate information on upcoming oral arguments -- none of my links to the calendars, etc. work.

Posted by Marcia Oddi on Monday, December 19, 2011
Posted to Upcoming Oral Arguments

Sunday, December 18, 2011

Law - "The Price to Play the ABA's Way"

Today's (Sunday's)NY Times Business Section features a massive (2-full-page) story by David Segal placing much of the blame for the high cost of a law school education on the ABA's one-size-fits-all accreditation requirements. But the must-read story covers a lot more ground than that.

Here are a few quotes:

Anyone willing to invest $175,000 on a legal education, and hoping to earn a pile of money at a corporate firm, has plenty of options. But let’s say that your ambition is to make a modest living, perhaps in an area that is struggling. Or that you’d rather not enter your mid-20s lashed to a six-figure loan.

If you want a diploma blessed by the A.B.A. — and you don’t have rich parents, a plum scholarship or an in-state public law school with lots of taxpayer support — you are pretty much out of luck. And that is not just a problem for would-be attorneys. The lack of affordable law school options, scholars say, helps explain why so many Americans don’t hire lawyers.

“People like to say there are too many lawyers,” says Prof. Andrew Morriss of the University of Alabama School of Law. “There are too many lawyers who charge $300 an hour. There aren’t too many lawyers who will handle a divorce at a reasonable rate, or handle a bankruptcy at a reasonable rate. But there is no way to be that lawyer and service $150,000 worth of debt.”

This helps explain a paradox: the United States churns out roughly 45,000 lawyers a year, but survey after survey finds enormous unmet need for legal services, particularly in low- and middle-income communities. This year, the World Justice Project put the United States dead last among 11 high-income countries in providing access to civil justice.

It’s not just that many lawyers are prohibitively expensive. It is that when it comes to legal expertise, there are not a lot of cheaper alternatives — not in the United States, anyway. Britain, on the other hand, has a long menu of options, including a tier of professionals called legal executives, who are licensed after getting the equivalent of a community college degree. Counsel is also available from nonlawyers at a variety of nonprofits. And you can buy a simple divorce over the Internet for a set fee, or pay for customized legal advice, online or by phone.

“In the U.S., people and businesses have only one place to go for all their legal help — lawyers who graduated from an A.B.A.-approved law school and who follow mostly A.B.A. rules about how they run their practice,” says Gillian Hadfield, a professor at the Gould School of Law of the University of Southern California. “Everyone else who offers legal advice is engaged in the unauthorized practice of law.” * * *

In the case of other professional schools, he says, “you go to the accreditors before you open your doors, and they work with you from the beginning. And if you’re not in compliance, they will tell you. The A.B.A. says you can’t even apply for accreditation until you’ve completed your first year. That’s a huge difference.”

As I read the following, I recalled that the IU-Indianapolis Law School traces its history back to the merger in the early and mid-20th century of a number of small independent law schools:
THE A.B.A. won its role in legal education after a messy battle that began early in the 20th century. At the time, dozens of profit-making night schools were springing up, offering a more practical curriculum at a fraction of the tuition charged by established schools. From 1890 to 1930, the number of law schools tripled, and most of the increase came from night schools, according to Mr. Shepherd of Emory University and William G. Shepherd, authors of “Scholarly Restraints? A.B.A. Accreditation and Legal Education.”

To say that these night schools and their graduates appalled the A.B.A.’s core membership hardly captures the horror. Thousands of new lawyers were suddenly flowing into the market, many of them poor immigrants. Some of these night-school graduates were accused of incompetence, though notably those accusations came from the legal establishment, both in the field and in academia. The dean of Yale described night schools as a “rank weed” and urged their closure. * * *

Mr. Archer’s vision of low-cost legal education did not vanish. It lives on in places like the Nashville School of Law, a night school that started as the Nashville Y.M.C.A. Night Law School in 1911. Nashville’s graduates are not recruited by large corporate firms. Most will remain in Tennessee, because only a few states deem a diploma from a school that lacks A.B.A. accreditation as a ticket to practice.

But tuition costs $21,000 — in total, for all four years it takes to complete the degree. The reasons? Nobody has tenure. There are no full-time professors. The library costs $65,000 a year.

“Our mission from Day 1,” says Virginia M. Townzen, associate dean, “was to provide a quality, affordable education to those who might not otherwise be able to attend law school.”

The graduates get high marks from local judges, including Lawrence H. Puckett of the 10th Judicial District of Tennessee. “Some of our more outstanding practitioners have come through the Nashville School,” he said. “Many of the teachers are judges that I know, and I’m sure they are excellent instructors. But I think it’s also the quality of students. They persevere while also holding down a job. That speaks highly of their character.”

Posted by Marcia Oddi on Sunday, December 18, 2011
Posted to General Law Related

Courts - Part 2 of "3 Reasons Why Circuit Splits Matter"

The most recent entry from Nicholas J. Wagoner, of the blog Circuit Splits.

And here is Part 3.

Posted by Marcia Oddi on Sunday, December 18, 2011
Posted to Courts in general

Law - "Rules to Stop Pupil and Teacher From Getting Too Social Online"

From a long story by Jennifer Preston in today's NY Times:

Faced with scandals and complaints involving teachers who misuse social media, school districts across the country are imposing strict new guidelines that ban private conversations between teachers and their students on cellphones and online platforms like Facebook and Twitter. * * *

But the stricter guidelines are meeting resistance from some teachers because of the increasing importance of technology as a teaching tool and of using social media to engage with students. In Missouri, the state teachers union, citing free speech, persuaded a judge that a new law imposing a statewide ban on electronic communication between teachers and students was unconstitutional. Lawmakers revamped the bill this fall, dropping the ban but directing school boards to develop their own social media policies by March 1.

School administrators acknowledge that the vast majority of teachers use social media appropriately. But they also say they are increasingly finding compelling reasons to limit teacher-student contact. School boards in California, Florida, Georgia, Illinois, Maryland, Michigan, Missouri, New Jersey, Ohio, Pennsylvania, Texas and Virginia have updated or are revising their social media policies this fall.

Posted by Marcia Oddi on Sunday, December 18, 2011
Posted to General Law Related

Ind. Gov't. - "Stalwarts share loyalty to Daniels: Agency chiefs to stay through 2nd term"

Good story today from Niki Kelly of the Fort Wayne Journal Gazette on Daniels administration stalwards. The premise:

While some agencies have had a string of leaders since Daniels’ tenure began in January 2005, others have benefited from having a steady hand.
Includes interesting looks on former judges Ernest Yelton and Jim Payne.

Posted by Marcia Oddi on Sunday, December 18, 2011
Posted to Indiana Government

Ind. Gov't. - "Indiana businesses are becoming increasingly alarmed that the state's flurry of so-called "social legislation" may be damaging its business-friendly reputation and holding back job growth"

That is the lead (lede) to one of three stories in the Business Section of today's NWI Times, all reported by Keith Benman.

The longest story, headed "Business: Social legislation may be killing Indiana jobs," continues:

There are fears Indiana's tough new immigration law, its anti-gay marriage amendment and the "bring-your-gun-to-work" law could chill some companies' efforts to recruit top talent and hinder overall job growth in the state, said Indiana Chamber of Commerce President Kevin Brinegar.

"We are starting to look at the incumbent legislators and candidates," Brinegar said. "Are they focused on jobs and the economy or are they more focused on social issues?"

Some of the state's largest employers have directly challenged one, some or all of the bills on their merits during rollicking Statehouse debates. Those include companies such as international steelmaker ArcelorMittal USA, based locally in East Chicago and Burns Harbor; engine-maker Cummins Inc., of Columbus, Ind.; and pharmaceutical powerhouse Eli Lilly & Co., of Indianapolis.

"The business community in general is saying let's focus on some higher priority issues," said Shaun Hawkins, chief diversity officer at Eli Lilly. "Let's focus on things like job creation, economic development and the appropriate tax incentives."

A side-bar, listing "The Indiana General Assembly's flurry of social legislation affecting businesses," is headed "Poison bills?"

The second story, headed "Legislators cite God, beliefs in fight for social legislation," begins:

Key promoters of social legislation in the Indiana General Assembly say they listen to arguments by prominent Indiana employers that the laws may damage the state's economic competitiveness — but they just don't buy it.

"I just don't think that will happen to Eli Lilly and the others," said state Sen. Dennis Kruse, R-Auburn, the senate sponsor of Indiana's anti-gay marriage amendment. "Their business will not go down because of the marriage amendment or the other laws." * * *

"The ivory tower elite establishment has been engaging in a concerted effort to fear monger for their own purposes for four years so it doesn't surprise me," said state Sen. Mike Delph, R-Carmel, a backer of the defense of marriage amendment and author of Indiana's tough new immigration law.

Kruse, Delph, Turner and other legislators interviewed stressed their push for social legislation, which has been overwhelmingly supported by their fellow legislators, is driven by fundamental beliefs and that more can be expected in the years ahead.

Republican gubernatorial hopeful Mike Pence highlighted his "well established" record on such issues in a visit to The Times in September and emphasized he "strongly supports" the defense of marriage amendment currently working its way through the General Assembly.

Today's third story is headed "Guns, immigrants, and marriage can split allies."

Posted by Marcia Oddi on Sunday, December 18, 2011
Posted to Indiana Government

Courts - More on "Ray Charles could see that signature was doctored"

This ILB entry from March 3, 2011, began:

According to this AP story, Pennsylvania state Sen. Jane Orie, R-Allegheny, 49 "and her sister, Janine Orie, 56, are charged with conspiring to use the senator's staff to do campaign work for a third sister, Joan Orie Melvin, who was elected to the state Supreme Court."
The Pittsburgh Post-Gazette story linked in the entry is still available, and contained one of my favorite photos of all-time, one I earlier described as "Shakespearean."

Today Howard Bashman of How Appealing, based in Pennsylvania, has an entry headed "Justice Joan Orie Melvin's sister faces four additional charges"," linking to stories in two Pittsburgh papers. As he writes:

The Pittsburgh Tribune-Review contains an article that begins, "Allegheny County prosecutors filed new corruption charges on Friday against a sister of state Supreme Court Justice Joan Orie Melvin and painted a picture of a judicial office immersed in partisan politics for almost two decades."

And today's edition of The Pittsburgh Post-Gazette contains an article headlined "New charges filed against Janine Orie; Justice Melvin's staff offers testimony." The newspaper has also posted online the grand jury presentment and the criminal complaint.

Posted by Marcia Oddi on Sunday, December 18, 2011
Posted to Courts in general

Saturday, December 17, 2011

Ind. Gov't. - "Ind. AG to challenge order that Daniels testify "

Charles Wilson of the AP reported last evening:

An Indiana judge on Friday ordered Gov. Mitch Daniels to be deposed in two lawsuits over the state’s cancellation of a $1.37 billion contract IBM received to modernize the state’s welfare system, but the state attorney general said he would challenge the order.

“A deposition of a sitting governor would set a precedent that would have ramifications for the Office of the Governor and all of its future officeholders,” Attorney General Greg Zoeller said in a statement. “As Attorney General, is it my legal obligation to ensure that this court order is challenged, and therefore it will be challenged in the appropriate court.” * * *

Marion Superior Court Judge David Dreyer said a law state attorneys say protects Daniels from testifying is “ambiguous” and excluding Daniels from being deposed would be “illogical,” given that the state filed the first lawsuit in the case.

Indiana is suing IBM to recover more than $400 million it paid the company before Daniels canceled the 10-year contract in 2009 amid complaints about the automated welfare system. IBM’s countersuit says the state still owes IBM about $100 million.

IBM contends Daniels could provide details others couldn’t. Indiana’s attorneys argued it’s common for high-ranking government officials to stay out of civil lawsuits.

“The governor’s intent and state of mind are issues of fact in this case,” the order said. Without the governor’s testimony, both sides could be forced to call other witnesses to speculate about his intent, which would be inadmissible, Dreyer wrote.

Here is a long list of earlier ILB entries re the IBM contract.

Posted by Marcia Oddi on Saturday, December 17, 2011
Posted to Indiana Government

Ind. Courts - Trial in Delaware County on suit that seeks to overturn smoking ban there

Douglas Walker's long story from today's Muncie Star-Press reports:

The lawsuit was filed in July -- by the Delaware County Licensed Beverage Association, three local American Legion posts an AmVets post and a tobacco shop -- after county commissioners adopted the enhanced ban. Unlike a measure adopted in 2006, it prohibited smoking in taverns and fraternal lodges.

Delaware Circuit Court 1 Judge Marianne Vorhees on Friday afternoon took the case under advisement, and said she hoped to issue a ruling by the end of next week.

Posted by Marcia Oddi on Saturday, December 17, 2011
Posted to Indiana Courts

Ind. Courts - Still more on: Supreme Court names special judge to hear Center Twp. small claims court's mandate action

Mary Milz of WTHR 13 had a report last evening on the news the ILB broke on Dec. 14th, with a followup yesterday. Don't miss watching the video.

Posted by Marcia Oddi on Saturday, December 17, 2011
Posted to Indiana Courts

Environment - NY's highest court rules on how clean is clean

From the Dec. 15th NY Times, Mireya Navarro reports in a story headed "Court of Appeals Rules That State Can Seek Full Cleanup of Superfund Sites" that begins:

In a decision affecting some of New York’s most toxic sites, the Court of Appeals ruled Thursday that state environmental regulators could seek to require companies responsible for the pollution to restore the areas to the condition they were in before the contamination occurred.

At the heart of the case was the question of how clean is clean enough under the state’s Superfund program, which oversees the cleanup of landfills, rivers and former industrial places where toxic chemicals were disposed of or stored.

A coalition of companies that own some of the properties sued the state in 2007, arguing that the Department of Environmental Conservation had the authority only to require the removal of “significant” environmental threats, not to mandate a cleanup that restored a site to its pre-industrial condition.

But in its 5-to-2 decision, the Court of Appeals said that the conservation department “did not exceed its authority or act contrary to law” in enforcing a regulation meant to remove existing or potential hazards that pose a significant threat or imminent danger of irreversible damage to the environment.

Under the regulation, department officials can call for restoration of contaminated sites to “pre-disposal conditions to the extent feasible.”

Here is the 12/15/11, 20-page opinion in In the Matter of New York State Superfund Coalition, Inc. v. New York State Department of Environmental Conservation, et al.

Posted by Marcia Oddi on Saturday, December 17, 2011
Posted to Environment

Friday, December 16, 2011

Ind. Courts - More on: "'Teen Mom' Star Violates Probation "

Updating this ILB entry from earlier today, Plainfield attorney (and ILB supporter) Cara Wieneke writes:

You mean you don't watch? I am ashamed to admit that I do, and it is interesting how all that came about. Fans of the show watched in horror as Amber abused her boyfriend, literally right in front of her daughter, on multiple occasions. All caught on camera. So many people were appalled by her conduct that they called the prosecutor in Anderson, who began watching the show himself to see what it was all about. That brought the charges and CPS's involvement.

Since that time, MTV has filmed Amber going to and from court and CPS meetings in Anderson. They even filmed at least one meeting between her and Bob Schembs, her attorney in Anderson.

We are in between seasons now, so nothing new to report. But this probation violation should be pretty interesting. Not paying fees...I would not be surprised if evidence isn't presented regarding what she is being paid by MTV to do the show. That certainly piqued my curiosity.

Posted by Marcia Oddi on Friday, December 16, 2011
Posted to Indiana Courts

Ind. Courts - Judges Ass'n. annual judge and journalist awards announced

In a news release dated Dec. 15th, the Indiana Courts announced:

Community Relations Committee Awards: The Indiana Judges Association recognizes a judge and a journalist each year for their contribution to public information and education.

Allen Superior Court Judge Nancy E. Boyer was recognized for her work with the mortgage foreclosure program. Judge Boyer was the leader behind the Mortgage Foreclosure Prevention Program in Allen County, and within the first four months helped 18 homeowners avoid foreclosure, saving the county at least $720,000.

The reporter recognized was Harold J. Adams of The Courier-Journal in Louisville. Adams’ used the Indiana Judicial Service Report to review trial court statistics to write a story about the plea bargaining process.

Adams' Jan. 7, 2011 story, headed "Plea bargains trump many Indiana trials," is no longer available online, but here is a copy.

Posted by Marcia Oddi on Friday, December 16, 2011
Posted to Indiana Courts

Ind. Gov't. - "Digging a pension hole: Springfield politics wreaked havoc on retirement code"

From the Chicago Tribune, this story by Jason Grotto and Ray Long about our sister state, Illinois.

Posted by Marcia Oddi on Friday, December 16, 2011
Posted to Indiana Government

Ind. Courts - More on: Supreme Court names special judge to hear Center Twp. small claims court's mandate action

Updating this ILB entry from Dec. 14th, the 3-page, Dec. 9, 2011 Order Appointing Special Judge is now available.

Posted by Marcia Oddi on Friday, December 16, 2011
Posted to Indiana Courts

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

For publication opinions today (1):

In Justin M. Corwin v. State of Indiana, a 12-page opinion, Judge May writes:

Justin Corwin brings this interlocutory appeal challenging the denial of his motion to suppress evidence. A police officer discovered, during a Terry stop, prescription medication for which Corwin did not have a valid prescription. Corwin raises the following two issues: 1. Whether the Fourth Amendment was violated when the officer continued to search Corwin after discovering Corwin was not the suspect for whom he was looking; and 2. Whether the Fourth Amendment was violated when the officer continued inspecting the pill bottle from Corwin’s pocket when it was apparent that bottle was not a weapon. * * *

When the officer opened Corwin’s pill bottle to determine the contents, he ran afoul of the limits of a Terry stop, and therefore the pills found in the bottle, and all evidence of their discovery, should have been suppressed. Accordingly, we reverse.

NFP civil opinions today (1):

Diana L. Gipson v. Craig G. Gipson (NFP)

NFP criminal opinions today (9):

Will Arline v. State of Indiana (NFP)

Robert Morelock v. State of Indiana (NFP)

Arthur Dedrick Green v. State of Indiana (NFP)

Frederick Allen v. State of Indiana (NFP)

Mark Koers v. State of Indiana (NFP)

Harvey Byrd v. State of Indiana (NFP)

Chris Fields v. State of Indiana (NFP)

Mario J. Gaston v. State of Indiana (NFP)

Jeryl R. Bingham v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 16, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Gov. Mitch Daniels must be deposed in IBM lawsuit, judge rules."

Niki Kelly tweets: Gov. Mitch Daniels must be deposed in IBM lawsuit, judge rules.

Jim Shella
tweets: Judge David Dreyer says IBM lawyers can depose Gov. Daniels in FSSA lawsuit.

Mary Beth Schneider
tweets: Court orders Daniels to be deposed in IBM lawsuit over FSSA contract.

[listed in reverse chronological order]

Posted by Marcia Oddi on Friday, December 16, 2011
Posted to Indiana Government

Ind. Courts - "'Teen Mom' Star Violates Probation "

I don't watch this show and actually hadn't even heard of it, but I saw this story from WRTV6 last evening that began:

ANDERSON, Ind. -- Amber Portwood, a star of the MTV reality show "Teen Mom,” has violated the terms of her probation, officials said.
As I read it I recalled a recent two-part series from Justia's Verdict. The series, by law professor Joanna L. Grossman of Hofstra Law School, is titled "Everything I Need to Know About Family Law I Learned From Teen Mom," Part 1 and Part 2.

Posted by Marcia Oddi on Friday, December 16, 2011
Posted to Indiana Courts

Courts - "At least 600 DUI cases in jeopardy because of lapsed Breathalyzer certifications"

That is the headline to this Dec. 15th story by Jason Riley in the Louisville Courier Journal that begins:

Alcohol breath test results in about 600 local drunken-driving cases could be thrown out because four Breathalyzer technicians with the Louisville Department of Corrections allowed their certifications to lapse in September.

Jefferson County Attorney Mike O’Connell said Thursday that his office learned of the issue late Tuesday afternoon and has been looking through the cases — including some that already have resulted in convictions — to notify defense attorneys, police and judges.

He acknowledged the incident could lead to some DUI cases being dismissed, saying it was a “serious evidentiary problem,” since the test results would likely be thrown out by a judge if a defense attorney asks.

Posted by Marcia Oddi on Friday, December 16, 2011
Posted to Courts in general

Ind. Gov't. - More on "Governor Daniels names Anita Kolkmeier Samuel general counsel"

Adding to this ILB entry from earlier this morning, outgoing general counsel David Pippen has written the ILB (and perhaps read my mind about the upcoming process of filling the CJ vacancy) to say:

Anita has been involved in judicial selection through all three prior General Counsels for Governor Daniels, she isn’t a new face to the process in this office. She is a wonderful lawyer.

Posted by Marcia Oddi on Friday, December 16, 2011
Posted to Indiana Government | Vacancy on Supreme Court 2012

Not law but interesting: Blogger (my hero) stars in NYT movie

IndyStar investigative reporter John Russell tweeted yesterday:

News geeks. Indy Star journos (including me) spend lunch hour watching Page One documentary about NYT.
ILB: I've watched it twice. It is on streaming Netflix:
Page One: Inside the New York Times
2011 R 91 minutes

Documentarian Andrew Rossi goes inside the New York Times to examine how the venerable paper and its reporters are responding to the massive changes in how news is gathered, analyzed and dispersed.

The doumentary is about the NYT as it responds to the digital revolution. My favorite reporter in the movie is the young "Twitter expert," Brian Stelter.

What is not told in the movie is the back-story on Stelter, but it is documented in this 2007 ILB entry.

The NYT had a Nov. 20, 2006 story by Julie Bosman titled "The Kid With All the News About the TV News," about "Brian Stelter, a baby-faced 21-year-old at Towson University here, a few miles north of Baltimore," whose blog was read by everyone in the news industry.

Then, on June 12, 2007, the NYT hired him, and the rest is history, as they say.

Posted by Marcia Oddi on Friday, December 16, 2011
Posted to General News

Ind. Gov't. - "Governor Daniels names Anita Kolkmeier Samuel general counsel"

From a news release:

INDIANAPOLIS (December 16, 2011) – Governor Mitch Daniels announced today that Anita Kolkmeier Samuel, assistant general counsel and policy director for the governor, has been named general counsel. Samuel replaces David Pippen, who has resigned to accept a position with Indianapolis law firm Bose, McKinney & Evans.

Pippen has served as general counsel since February 2010.

Samuel has been assistant general counsel specializing in state personnel matters since 2005. She also serves as policy director for five state agencies: State Personnel Department, State Library, Commission on Public Records, Commission for Women and Office of the Public Access Counselor. Prior to joining the governor’s office, Samuel was general counsel for Secretary of State Todd Rokita and was a deputy attorney general for Attorney General Steve Carter. * * *

The appointment is effective December 19.

Posted by Marcia Oddi on Friday, December 16, 2011
Posted to Indiana Government

Courts - Part 1 of "3 Reasons Why Circuit Splits Matter: Enhanced Certworthiness"

The latest entry from Nicholas J. Wagoner, of the blog Circuit Splits.

Posted by Marcia Oddi on Friday, December 16, 2011
Posted to Courts in general

Thursday, December 15, 2011

Ind. Decisions - More on "Keith Henderson can't prosecute third David Camm murder trial, appeals court rules"

Updating this ILB entry from Nov. 17th, David Suddeath reports in the New Albany News & Tribune:

FLOYD COUNTY — Indiana Attorney General Greg Zoeller announced Thursday his office will appeal the ruling that removed Floyd County Prosecutor Keith Henderson from David Camm’s third murder trial due to a book deal. * * *

In a news release issued Wednesday afternoon, Zoeller defended Henderson’s right to represent the state in the case.

“Prosecutors as elected officials need to be able to speak freely following a conviction in order to maintain the public confidence in our system of justice,” Zoeller said.

“After consulting with the Indiana Prosecuting Attorneys Council, we have decided to ask the Indiana Supreme Court to review the appellate court’s ruling and provide guidance on this important issue, and we ask that the prosecutor be allowed to remain on this case.”

From a story by Ben Zion Hershberg in the Louisville Courier Journal:
Richard Kammen, one of Camm’s lawyers, said he was disappointed to learn Zoeller is appealing the ruling but not terribly surprised.

“This will mean a delay of at least 60 days,” Kammen estimated, while the Indiana Supreme Court decides whether to accept the case.

The delay in Camm’s third trial would be months longer if the high court decides to review the ruling and hold oral arguments, Kammen said.

He added that he believes that once the prosecutor issue is resolved, it will be another “year of intense preparation” before the trial can be held.

Posted by Marcia Oddi on Thursday, December 15, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - "More on: Broker, 2 attorneys are indicted on multiple fraud counts"

Updating this ILB entry from earlier today, Derrick Thomas of WRTV6 had a story this evening (video not yet available, it appears) on today's court appearance:

SOUTH BEND, Ind. -- An Indianapolis real estate broker and two associates accused of defrauding the state and a bank appeared in federal court Thursday.

John M. Bales II, 44, the president of Venture Real Estate Services in Indianapolis, his partner and general counsel William E. Spencer, 44, of Carmel, and Indianapolis developer and attorney Paul J. Page, 47, were each indicted Wednesday with one count of conspiracy to defraud, one count of bank fraud, three counts of mail fraud and eight counts of wire fraud.

Page was also charged with one count of making false statements to influence the actions of a bank insured by the Federal Deposit Insurance Corporation. * * *

Bales' attorney adamantly denied the charges.

"There was no hanky-panky. There were no secret straw buyers. This was all above board," said attorney Larry Mackey. "What John Bales is going to do is demonstrate to the trial jury that no crime was committed."

The indictment points to a lease deal in Elkhart for the Department of Child Services where office space was acquired in a building jointly owned by Page and former Marion County Prosecutor Carl Brizzi.

Brizzi has not been charged in connection with the case, but Page's attorney said he believes federal investigators are really interested in zeroing in on Brizzi.

"It appears that he (Page) just got caught in the middle of some battle going on that is not his," said attorney Bob Hammerle. "It is just ghastly that he has to be informed that he's been indicted, a week before Christmas, just ghastly."

Posted by Marcia Oddi on Thursday, December 15, 2011
Posted to Indiana Courts

Ind. Gov't. - David Pippen's last day on Daniel's staff is tomorrow [Updated]

Mary Beth Schneider has tweeted:

Gov Daniels top legal counsel David Pippen's last day is tomorrow. He's leaving to join Bose McKinney & Evans as partner.
That means yet another new face in the upcoming judicial selection process, as Poppen was the liaison to the Indiana Supreme Court.

[Updated] Here is the news release from Bose, announcing:

David Pippen will join the firm as a partner and chairman of the Environmental Law Group effective December 19. The former general counsel and senior policy director for Gov. Mitch Daniels also will serve as a member of the Utilities Law Group.

Posted by Marcia Oddi on Thursday, December 15, 2011
Posted to Indiana Government | Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Ten to Watch in 2012, Part 2


By Professor Joel Schumm, Indiana University McKinney School of Law

THE LIST (in alphabetical order):

Honorable Cale Bradford (link), Indiana Court of Appeals (Indianapolis). Only two of the fifteen judges on the Indiana Court of Appeals were appointed by Governor Daniels; the other thirteen were appointed by Governors Bayh, O’Bannon, and Kernan. Last summer, Judge Elaine Brown applied for the Boehm vacancy but did not advance past the first round. Judge Bradford did not apply, which could change this round. Prior to his appointment in 2007, Judge Bradford served for ten years on the Marion Superior Court, seven in the criminal division and three in the civil division. He was twice elected presiding judge by his colleagues. His legal career began with five years in private practice, followed by five years as an Assistant U.S. Attorney and two years supervising a staff of more than 100 lawyers in the Marion County Prosecutor’s office.

Deborah Daniels (link), Krieg DeVault (Indianapolis). For a minute, ignore the name and consider this resume: partner at a prominent Indianapolis law firm and “former U.S. Attorney and U.S. Assistant Attorney General” with “lengthy experience in criminal and civil investigations and public safety.” Her awards include the Antoinette Dakin Leach Award, Women and the Law Division, Indianapolis Bar Association; Nancy Maloley Outstanding Public Servant Award, Richard G. Lugar Excellence in Public Service Series; Indianapolis Business Journal, Influential Women in Indianapolis. Most recently, she has led the Data Analysis Workgroup of the Criminal Code Evaluation Commission, which is tasked with recommending “a new structure on all felony classifications to reduce recidivism and prison overcrowding.” Not mentioned on the resume, but perhaps most significant for these purposes: sister to Governor Daniels. Although concern is properly expressed when a person secures a job because of family connections, but should a family connection preclude a person from a job?

Honorable Mary Margaret Lloyd, Vanderburgh Superior Court (Evansville). Chief Justice Shepard was appointed to the Supreme Court after serving as a trial judge in Vanderburgh County and maintains close ties there. Judge Lloyd, daughter of the former mayor for whom the Chief Justice once worked, is the only female judge on the superior court and has presided over both civil and criminal cases. She was first elected in 2001 and previously served as a law clerk to Chief Justice Shepard and a deputy prosecutor. She spearheaded the Family Court project, which was featured in an Indiana Court Times article. A quick Lexis search suggests her cases have fared well on appeal, including the much-discussed Barnes case, which was affirmed by the Indiana Supreme Court.

Mark Massa, Executive Director, Indiana Criminal Justice Institute (Indianapolis). Massa began his legal career as a law clerk to Chief Justice Shepard and has spent most of the time since as a prosecutor, with a three-year stint at the U.S. Attorney’s office and primarily as a deputy prosecutor and later Chief Counsel of the Marion County Prosecutor’s Office. He served as counsel to Gov. Daniels from 2006 to early 2010, when he resigned to run for Marion County Prosecutor, a race he lost narrowly to Terry Curry. More recently, he served as chair of the Alcohol and Tobacco Commission and, since May of this year, the executive director of the Indiana Criminal Justice Institute.

Patricia Caress McMath, Marion County Public Defender Agency, Appellate Division (Indianapolis). If you run a search for “excellent brief” on Lexis or Westlaw, you will find a handful of Indiana Supreme Court cases where the Chief Justice (seldom any other justice) has complimented an attorney. One member of that exclusive club is McMath, who was lauded for her brief in Young v. State, 699 N.E.2d 252, 255 (Ind. 1998). McMath served as a law clerk to Judge Staton and Judge Barteau of the Indiana Court of Appeals for several years, separated by a two-year stint with a law firm, followed by work as an adjunct or full-time legal writing professor. For the past fifteen years she has done appellate public defender work on contract or full-time. Few applicants could rival the appellate experience of her or Maggie Smith. McMath frequently and very effectively argues cases before the Court, including a case just this morning.

Honorable Rudolph Pyle III (link), Madison Circuit Court. Before attending law school, Judge Pyle worked as a state trooper for three years. After graduating from law school, he served as a law clerk to Judge Darden of the Court of Appeals for more than three years, a year in general private practice, and nearly six years as a deputy prosecutor in Madison County. Gov. Daniels appointed him to the bench in 2009 to fill the remaining term of a judge who had resigned, and Pyle was re-elected in 2010. At the time of his appointment, the Gov.’s spokesman commented: “Rudy Pyle’s devotion to public service and diverse range of real world and academic experience show he has the necessary traits to be a great judge. . . . The governor is confident he will bring new energy to the bench and will help establish a more effective and efficient court system in Madison County.” The Chief Justice is rightfully very proud of the ICLEO program he founded, and Judge Pyle is one of the first graduates and one of many who has gone on to an impressive legal career.

Melissa Proffitt Reese (link), Ice Miller LLP (Indianapolis). Last year’s vacancy produced impressive applicants from most of Indianapolis’s large law firms but no one from Ice Miller. If that changes this time around, Reese would be an especially strong candidate. She is a former managing partner of the firm and as chair of the Agribusiness Group has been involved in economic development and energy initiatives, including international trade missions with Gov. Daniels and Lt. Gov. Skillman. Her law firm bio notes she has served on “boards of many community organizations and volunteers her time for causes supporting economic development, diversity, and women's issues.” A 2009 article recognizing her as “volunteer of the year” by the Indiana Chamber is well worth reading and includes this quote, “I think it’s also very important to set role models for young women.” She, or any of the other women profiled here, could serve as role models for the thousands of Hoosier girls and female law students who visit the Supreme Courtroom and see just one woman among the 106 pictures on the wall or watch the webcast of an oral argument and see none on the bench.

Steve Schultz, Executive Director, Louisville and Southern Indiana Bridges Authority (Columbus). Like the Chief Justice, he earned his law degree at Yale. He practiced corporate law at Barnes & Thornburg in Indianapolis and with a large international firm in London. He served as general counsel to Irwin Financial Corporation in Columbus and most recently has been developing a financial plan for the Ohio Rivers Bridges Project. Perhaps most significantly, he was Gov. Daniels first chief counsel. His fans include B&T managing partner Bob Grand, who recounted that Schultz impressed colleagues with this thoughtfulness and intelligence. Schultz would seem an especially strong applicant if Gov. Daniels is again looking for, as he said in the press release announcing Justice David, a “breadth and diversity of his experience,” including years “spent years in business, on the receiving end of law and regulation.”

Maggie Smith (link), Frost Brown Todd (Indianapolis). Smith served as a law clerk to Justice Dickson while her husband (and now Supreme Court Administrator and Clerk of Courts) Kevin was clerking next door for Chief Justice Shepard. She has been actively involved in the drafting of and amendments to the appellate rules, including service on the Indiana Supreme Court’s Rules Committee since 2009. She has held many significant roles within the Appellate Practice of the state bar, most recently as the chair of the section. She is one of the most experienced appellate advocates in the state, having represented “businesses, individuals, and groups in all types of appellate proceeding at every level of the state and federal appellate courts, and also has significant experience representing amicus curiae parties before Indiana's appellate courts.”

G. Michael Witte (link), Executive Director, Indiana Disciplinary Commission. Witte served as a trial judge in Dearborn County for more than 24 years and was the first Asian-American on the bench in Indiana. In 2008, he was one of the three finalists for the Court of Appeals seat vacated by Judge Sharpnack to which Judge Elaine Brown was appointed. He was appointed Executive Director of the Indiana Disciplinary Commission in 2010, at which time Chief Justice Shepard noted: “Mike Witte has dedicated his career to public service . . . . He is well known to attorneys across Indiana as thoughtful and fair and energetic.” His experience leading the Disciplinary Commission would likely enhance his application considering the Court’s role in overseeing matters of admission and discipline.

Posted by Marcia Oddi on Thursday, December 15, 2011
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Ten to Watch in 2012, Part 1


By Professor Joel Schumm, Indiana University McKinney School of Law

The Judicial Nominating Commission will soon begin accepting applications to replace Chief Justice Shepard. Several of the 34 individuals who applied for the vacancy created when Justice Boehm retired last summer will likely apply. A separate post will discuss that topic.

This entry instead posits that many new individuals will also apply and profiles ten individuals who would likely do well in the process. A few disclaimers: I know some of the individuals well and others only by reputation. I have no confirmation that any of those listed will actually apply. Finally, although Article 7, Section 10 of the Indiana Constitution, expressly provides for merit selection “without regard to political affiliation,” it is very unlikely that an individual with strong Democratic ties will be appointed or that more than a few will apply. This Democrat-free list reflects that reality.

Key considerations. The statute outlines several factors for the Commission to consider. Posts last summer discussed these and other considerations in the context of the Boehm vacancy. This post will focus on five.

Gender. A great deal was written, on this blog and in the press, about the likelihood and importance of gender diversity during last year’s selection process. The Court is currently just one of three in the nation (along with Iowa and Idaho) with no female justices. The Indiana Legislative Insight list of possible applicants last summer went so far as to include only women. This widespread clamor may have contributed to a record number of applications from women, who comprised a majority of the applicants, and may have deterred some male candidates from applying. That is likely to change this year in light of (1) the Commission’s decision to forward the name of only one woman (Judge Moberly) for the Boehm vacancy; and (2) Governor Daniels’ statement upon appointing Justice David that he considers gender, at most, as “tie-breaker.”

Connections to the Governor. As Justice David noted at his swearing in, he had never met Gov. Daniels before his interview for the Supreme Court. This stands in stark contrast to many other appointments of individuals with very strong ties to the Governor. As Governor Daniels enters the final year in office, one way to leave a lasting mark is through strong judicial appointments. Some of the individuals listed in Part 2 are especially well known to the Governor.

Geography: Filling the Southern Indiana Void. The Chief Justice often speaks of his affinity for and roots within Evansville. His departure will leave will leave a Southern Indiana void on the Court. Justice Dickson was raised in Lake County and practiced in Lafayette. Justice Sullivan is a native of South Bend, and his professional life was spent primarily in Indianapolis. Justice Rucker grew up in Gary and practiced in Lake County. Justice David graduated from high school in Columbus and practiced law there for several years but spent most of his professional life on the bench in Boone County.

Public Affairs/Improving the Administration of Justice. The Commission is directed by statute to consider an applicant’s “[a]ctivities in public service, including writings and speeches concerning public affairs and contemporary problems, and efforts and achievements in improving the administration of justice.” The application form specifically asks about these activities, and applicants who do well with the Commission have generally been involved in many of these activities. For example, here is Judge Moberly’s application from 2010.

Influence of the Chief Justice. The Chief Justice has chaired the Judicial Nominating Commission for 25 years and overseen the selection of five supreme court justices and all fifteen members of the Court of Appeals (and some others who came and left during his tenure as Chief Justice). Most members of the commission will be new and likely defer heavily to his judgment. Not only is the Chief Justice very experienced in selecting judges, this is also his seat.

Part 2 of this post, which will follow shortly, names the "10 to Watch in 2012."

Posted by Marcia Oddi on Thursday, December 15, 2011
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 0 today (and 12 NFP)

For publication opinions today (0):

NFP civil opinions today (8):

P.J. v. Review Board of the Indiana Dept. of Workforce Development, and Indianapolis Public Schools (NFP)

Brad A. Morcombe v. Kim D. Morcombe (NFP)

Good Host, LLC v. Advanced Interventional Pain Center, LLC (NFP)

P. Bryan Lilly, D.O. v. Tammy Meserve, as Natural Guardian of Samantha Jo Aders, Darien Aders, and Mason James Aders, minors (NFP)

In Re: (Supervised) Estate of Robert E. Bradley, Decedent; Phyllis C. Bradley v. Martha T. Starkey (NFP)

Najee Sabree Q. Blackman v. Samantha Maddox, et al. (NFP)

R.D. v. Review Board of the Indiana Dept. of Workforce Development, et al. (NFP)

Theresa L. Trensey and Louis L. Roth, Sr. v. Garland D. Anderson, M.D., Parkview Medical Group, and Unnamed Hospital, Inc. d/b/a Unnamed Hospital (NFP)

NFP criminal opinions today (4):

Donald S. Forker v. State of Indiana (NFP)

Robert D. Spangler v. State of Indiana (NFP)

Clara Combs v. State of Indiana (NFP)

Joshua Hudson v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 15, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Real estate deal leads to charges: Broker, 2 attorneys are indicted on multiple fraud counts"

That is the headline to the story in today's Indianapolis Star, reported by Jon Murray.

But the giant photo leading the story in the online version is of the head of "Former Prosecutor Carl Brizzi [who] had ties to the deal, but he was not mentioned in the indictment." From the beginning of the story itself:

An Indianapolis real estate broker and two area attorneys have been indicted by a federal grand jury on allegations they defrauded a bank and the state in a real estate deal.

John M. Bales II, 44, and Paul J. Page, 47, both of Indianapolis, and William E. Spencer, 44, Carmel, were charged with one count of conspiracy to defraud, one count of bank fraud, three counts of mail fraud and eight counts of wire fraud. Page also was charged with one count of making false statements to the bank.

The U.S. attorney's Hammond office handled the case and announced the indictments Wednesday.

The indictments center on an Elkhart real estate deal involving a state agency that leased office space for 10 years in a building that is co-owned by Page and former Marion County Prosecutor Carl Brizzi.

Brizzi received a 50 percent stake in the building without putting up any money. But he has not been indicted, and his name was absent from court documents issued Wednesday.

Posted by Marcia Oddi on Thursday, December 15, 2011
Posted to Indiana Courts

Ind. Decisions - Supreme Court rules on whether misdemeanant may be disenfranchised during period of imprisonment

In David R. Snyder v. J. Bradley King and Trent Deckard, in their Official Capacities as Co-Directors of the Indiana Election Division; and Linda Silcott and Pam Brunette, et al., a 30-page, 5-0 opinion, Justice Sullivan writes:

Article II, § 8, of the Indiana Constitution authorizes the General Assembly to disenfranchise “any person convicted of an infamous crime.” David Snyder contends that because misdemeanor battery is not an “infamous crime,” his constitutional rights were violated when his voter registration was canceled after he was convicted and incarcerated for that crime. We agree that the crime in this case was not an “infamous crime” but also hold that the General Assembly has separate constitutional authority to cancel the registration of any person incarcerated following conviction, for the duration of incarceration.
This opinion is in answer to a certified question from the SD Indiana. See earlier ILB entries:
Ind. Decisions - Supreme Court accepts certifed question on election issue

In a 2-page order filed Feb. 21, 2011 and posted online today, captioned David R. Snyder v. J. Bradley King, et al, CJ Shepard writes that the Court has accepted a question of Indiana state law certified to it by...

Posted in The Indiana Law Blog on February 24, 2011 02:23 PM

Ind. Law - Suit filed in federal court challenges Indiana's disfranchisement of qualified voters who have been incarcerated by reason of a misdemeanor conviction

Updating the ILB entry from August 16th, which included copies of the10-page complaint and Exhibit A, the "Notice of Disfranchisement," Jeff Parrott of the South Bend Tribune has a good story today headed "Suit challenges jailed voter ban: Former Roseland...

Posted in The Indiana Law Blog on August 19, 2010 09:21 AM

Ind. Law - Suit filed in federal court challenges Indiana's disfranchisement of qualified voters who have been incarcerated by reason of a misdemeanor conviction

Here is a great NY Times graphic from March 27, 2004, showing the numbers of states that prohibit felons from voting: while in prison; while on parole; while on probation; after sentence is completed, for certain types of felons; after...

Posted in The Indiana Law Blog on August 16, 2010 02:24 PM

See also:
Ind. Law - More on: "Should those jailed for minor crimes have voting rights?"

Following up on its long story last Thursday on the oral argument that day in the case of David Snyder v. J. Bradley King, the Indianapolis Star has this editorial today headed "Misdemeanors miss the mark." A sample:Indiana is one...

Posted in The Indiana Law Blog on April 25, 2011 08:48 AM

Ind. Law - "Should those jailed for minor crimes have voting rights?"

For background, see this Feb. 24, 2011 ILB entry, which includes links to earlier ILB entries on states that prohibit felons from voting -- Indiana's prohibition applies to all incarcerated persons, whether imprisoned for a felony, or a misdemeanor. The...

Posted in The Indiana Law Blog on April 21, 2011 12:59 PM

More from today's opinion:
The essential question remains: Does the General Assembly have power under our Constitution to disenfranchise a person convicted of a crime and sentenced to an executed term of incarceration, for the duration of incarceration? [p. 24] * * *

In sum, the General Assembly may exercise its police power to deprive all convicted prisoners of the right to vote for the duration of their incarceration. A convicted prisoner is different from a pretrial detainee, who has yet to have his or her day in court. The loss of political and civil rights upon conviction and imprisonment is simply a collateral consequence thereof. * * *

We hold that the Indiana General Assembly has authority under its general police power to disenfranchise persons incarcerated upon conviction of a crime, so long as the disenfran-chisement lasts only for the duration of incarceration. That the statute cites the Infamous Crimes Clause as the basis for its enactment, instead of the general police power, does not render it invalid. This language in no way affects the purpose or effect of the statute, and we will not invali-date an otherwise constitutional statute merely because it includes an unnecessary statement of authority. [p. 26] * * *

Although we have accepted and answered the certified question in this case, we have not done so without hesitation. While there are benefits to the certified question – namely, ensuring uniform interpretation and application of Indiana law – there are significant pitfalls. See generally Randall T. Shepard, Is Making State Constitutional Law Through Certified Questions a Good Idea or a Bad Idea?, 38 Val. U. L. Rev. 327, 336-51 (2004) (discussing the advantages and dis-advantages of certified questions concerning state constitutional law). Future litigants should bear this in mind when deciding whether to proceed in state court or in federal court, and they should consider any procedural mechanisms that may be available for litigating a state constitutional law claim in state court while a federal claim is pending in federal court.

Conclusion. We hold that the Indiana Constitution was not violated when, upon being convicted of Class A misdemeanor battery and sentenced to an executed term of incarceration, David Snyder was disenfranchised but only for the duration of his incarceration.

Posted by Marcia Oddi on Thursday, December 15, 2011
Posted to Ind. Sup.Ct. Decisions

Courts - 6th Circuit "to hear newspaper’s appeal to unseal Fair Finance search records"

Ed Meyer of the Akron Beacon Journal reports in a story that begins:

A federal appeals court will hear oral arguments Feb. 29 in a request to unseal an FBI affidavit that led to the November 2009 search of Fair Finance Co. business offices in Akron and Indianapolis, court officials said Wednesday.

Attorneys for the Akron Beacon Journal and the Indianapolis Business Journal filed the request to unseal all of the Fair Finance search warrant records, arguing that “transparency in the investigation” was needed for the many Ohio and Indiana investors who were victims of the alleged scheme. * * *

The records were sealed by U.S. District Judge Sara Lioi in a federal court action in Akron.

Lioi ruled against the newspapers’ request to unseal the records in August 2010, saying the government’s criminal investigation is ongoing. Unsealing the records, the judge asserted, would reveal “a virtual road map” of the federal probe.

Posted by Marcia Oddi on Thursday, December 15, 2011
Posted to Courts in general

Ind. Decisions - 7th Circuit decides one Indiana case today

In Brown v. Columbia Sussex (ND Ind., Simon), a 22-page opinion, Judge Flaum writes:

The underlying litigation in this case concerns a host of plaintiffs-appellants’ civil rights and breach of contract claims against defendantsappellees— the owners of Baton Rouge Marriott and an individual employee of the Marriott (collectively, “Marriott”) . Throughout the pre-trial discovery of this litigation, 224 of the 268 plaintiffs continually missed both formal and informal deadlines. As a result, all but 44 of the plaintiffs had their claims dismissed by the district court as a discovery sanction pursuant to Fed.R.Civ.P. Rule 37(b). Appellants constitute 53 of the 224 unattentive plaintiffs. For the reasons set forth below, we affirm the district court’s dismissal of appellants’ claims.

Posted by Marcia Oddi on Thursday, December 15, 2011
Posted to Ind. (7th Cir.) Decisions

Law - "A scammer has been trying to steal newspaper carriers’ Christmas tips by putting holiday letters in subscribers’ mailboxes and newspaper tubes, leading them to believe he’s their carrier"

That from the Milwaukee Journal Sentinel, via JimRomenesko.com.

Posted by Marcia Oddi on Thursday, December 15, 2011
Posted to General Law Related

Wednesday, December 14, 2011

Stage collapse - More on: Who accepted the state's settlement offer?

Updating this ILB entry from earlier today, the AP is reporting this evening:

The Indiana Attorney General's office said Wednesday that 63 of the 65 claimants have confirmed they'll accept the settlements. Spokesman Bryan Corbin says that accounts for all but about $2,000 of the $5 million in total compensation available under state law. Those 63 include the estates of all seven people who died in the Aug. 13 collapse at the Indianapolis fairgrounds.

Corbin says the state has contacted attorneys for the two remaining claimants to verify whether they'll accept their offers.

Posted by Marcia Oddi on Wednesday, December 14, 2011
Posted to Stage Collapse

Ind. Gov't. - Report from the budget committee meeting

The Star's MBS tweets from Budget Committee meeting:

Mary Beth Schneider If legislators had the hard chairs and the audience the comfy chairs these hearings would be a lot shorter. Just sayin'.

Posted by Marcia Oddi on Wednesday, December 14, 2011
Posted to Indiana Government

Ind. Courts - Supreme Court names special judge to hear Center Twp. small claims court's mandate action

From an Order issued Dec. 9th by the Supreme Court:

Each justice has had the opportunity to review the trustee's motion and the judge's order, and has discussed the matter at court conference.

An overriding issue presented in this matter is the fundamental question of access to justice. All mandates, some more than others, impact upon access to justice. One of the issues presented here, the location of the Center Township of Marion County small claims court, may have a substantial impact on access to justice. As such a prompt and full hearing of the competing interests is necessary.

The Court finds that the procedures set out in Trial Rule 60.5 are designed to provide an immediate, expeditious and simple method for resolving and reviewing intra-county disagreements about courts and court funding. In the matter of assignment of courtrooms, judges offices, and other court facilities of the St. Joseph Superior Court, 715 N.E.2d 372 (Ind. 1999).

The use of traditional litigation, as suggested by the trustee in his motion to dismiss, is typically slower, more complex and may necessitate the use of other remedies to maintain the status quo until the litigation is resolved. Proceeding under Trial Rule 60,5, is advantageous to the judge, the trustee and the public.

The Court therefore finds that the trustee's motion to dismiss should be denied.

It is, therefore, ordered that the trustees' motion to dismiss is denied. Having denied the trustee's motion to dismiss, the Court, being duly advised, now finds that a special judge should be appointed to hear this matter pursuant to Ind. Trial Rule 60.5(b). It is, further ordered that pursuant to T.R. 60.5(b), Mr. Charles l. Berger, an attorney who regularly practices in Vanderburgh County, Indiana, is appointed to hear this matter, which shall be heard in the Center Township of Marion County small claims court.

Karl Mulvaney, who is representing the Center Twp. Small Claims Court, has represented judges in a number of mandate actions, including Jackson County in 2006 , and Clark County, also in 2006.

This is: Case Number: 49 S 00 - 1111 - SJ - 00667; CENTER TOWNSHIP OF MARION CTY. SMALL CLAIMS CT. (MANDATE)

See earlier ILB entry here, dated Sept. 19, 2011 and headed "Small claims court could move from City-County Building."

According to a Sept. 22nd story in the ILJ, "Trustee Eugene Akers’ plan to move the court [is] against Judge Michelle Smith Scott’s wishes. The judge cited security reasons among her objections to the move."

Additionally, "The proposal calls for the court to take the 2,200-square-foot space vacated by 300 East, a restaurant and bar at the Carson Center that closed Sept. 1." (BTW, I remember the stories when that opened -- didn't know it had already closed.)

Posted by Marcia Oddi on Wednesday, December 14, 2011
Posted to Indiana Courts

Ind. Gov't. - "State Budget Committee rejects independent audit of $320 million tax discovery" [Updated]

IndyStar has just posted this coverage by Mary Beth Schneider of this morning's State Budget Committee meeting and its decision re looking into the lost-since-2007 stream of revenue, totaling one-third billion dollars when "found" last month.

[Updated at 3:00 pm] om the AP, via the LCJ:

An official says budget forecasters warned the Indiana Department of Revenue something was wrong with its corporate tax collections two years before the state discovered it misplaced $320 million, but the agency dismissed the concerns.

Democrat Erik Gonzalez of the state’s budget forecasting committee says his panel told the agency in November 2009 it seemed to have a problem processing corporate tax collections.

Gonzalez says the agency could have avoided misplacing the money if it had acted.

Posted by Marcia Oddi on Wednesday, December 14, 2011
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

Term. of Parent-Child Rel. of H.G., E.G., and C.D.; and B.G. (Mother), H.H.G. (Father), and C.L.D. (Father) v. Indiana Dept. of Child Services

NFP civil opinions today (2):

The Jefferson County Board of Zoning Appeals v. Harry and Eva Elburg (NFP)

Clark County Board of Aviation Commissioners v. Margaret A. Dreyer (NFP)

NFP criminal opinions today (6):

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

Douglas Norman and Theresa Norman v. State of Indiana (NFP)

Quintin D. Holmes v. State of Indiana (NFP)

Alvareze Isom v. State of Indiana (NFP)

Darrell Stephens v. State of Indiana (NFP)

Maria J. Villarreal v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 14, 2011
Posted to Ind. App.Ct. Decisions

Law - What to do with your law degree (you wish!)

According to an interview with Judge Judy in the July 26, 2011 NYT Sunday Magazine, Judge Judy earns $45 million a year and works only five days a month.

Posted by Marcia Oddi on Wednesday, December 14, 2011
Posted to Indiana Law

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

In Susan Kellar v. Summit Seating (ND Ind., Nuechterlein), a 16-page opinion, Judge Williams writes:

Susan Kellar contends that she is entitled to overtime under the Fair Labor Standards Act for work performed prior to the official start of her work shift. The district court granted summary judgment in favor of her employer, Summit Seating, because it found that Kellar’s pre-shift activities were “preliminary,” that any work Kellar performed before her shift was “de minimis,” and that Summit did not know that Kellar was engaging in pre-shift work. While we disagree with the district court’s conclusions regarding the “preliminary” and “de minimis” nature of Kellar’s pre-shift work, we affirm because we conclude that Summit did not know or have reason to know that Kellar was working before her shift.
In US v. Moody (SD Ind., Lawrence), an 11-page opinion, Judge Manion writes:
A jury convicted Andre Moody of one count of conspiracy to distribute 500 grams or more of methamphetamine, and one count of distribution of five grams or more of methamphetamine. The district court sentenced Moody to 292 months’ imprisonment for each count, set to run concurrently. Moody appeals, arguing that the district court erred in admitting evidence obtained in violation of his constitutional rights. We conclude that the challenged evidence was derived from an independent source, and in light of the fact that law enforcement did nothing with the challenged evidence for over two years before it was rediscovered by an independent source, any unconstitutional taint was removed and the evidence was properly admitted. We affirm.

Posted by Marcia Oddi on Wednesday, December 14, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "New Gary, Ind., Mayor Has A Big Job Ahead Of Her"

New Gary mayor Karen Freeman-Wilson was the focus of a 4-minute story today on NPR's Morning Edition, reported by Michael Puente.

Posted by Marcia Oddi on Wednesday, December 14, 2011
Posted to Indiana Government

Courts - "ACLU Sues Over Voter-ID Law "

A few quotes from a Wall Street Journal story ($$$), dated Dec. 13, 2011, written by Amy Merrick:

As new state laws restricting access to voting come under increasing scrutiny, the American Civil Liberties Union filed a federal lawsuit Tuesday alleging that Wisconsin's strict voter-ID law violates the U.S. Constitution.

The suit, filed in the Eastern District court in Milwaukee, argues that allowing only limited types of photo ID to be used for voting imposes a severe burden on the right to vote, violating the Equal Protection Clause of the 14th Amendment. * * *

The Supreme Court upheld Indiana's strict voter-ID law in 2008, in Crawford vs. Marion County, saying the burden on voters was offset by the benefit of reducing the risk of fraud.

Mr. Sherman of the ACLU said that while the plaintiffs in the Indiana case sought to overturn the entire law, the Wisconsin suit argues instead that provisions should be made for specific groups of voters who will be unreasonably hurt by the new requirements.

Posted by Marcia Oddi on Wednesday, December 14, 2011
Posted to Courts in general

Ind. Courts - "Accused drunk driver testifies in his own defense "

Ruth Ann Krause reports in the Gary Post-Tribune in a story that begins:

A Valparaiso man on trial in a fatal drunken driving crash vigorously denied he was intoxicated when he crashed his sport utility vehicle into a service truck on the shoulder of Interstate 65.

Jeffery Allen Cleary, 65, acknowledged he ordered six double vodka and water drinks at Giovanni’s in Munster during a five-hour business lunch, but said he spilled part of his first drink. Questioned by defense attorney Kevin Milner, Cleary said he typically waters down his cocktails. “I guess I don’t like it real strong,” he said.

Posted by Marcia Oddi on Wednesday, December 14, 2011
Posted to Indiana Courts

Stage collapse - Who accepted the state's settlement offer? [Updated]

According to this Dec. 9th news release from AG Zoeller, the deadline was Monday, Dec. 12th:

As of mid-afternoon Friday, 20 claimants had accepted a total of $2,822,105 in settlements the State offered. The Attorney General's Office which negotiated the offers has heard from other claimants and their attorneys who indicated they intend to accept the offers by Monday's deadline. * * *

The State asks that signed acceptance documents be faxed to JWF, scanned and emailed or postmarked by midnight Monday night. If any claimant decides to reject an offer or does not respond, then the funds allocated to them will be added to those for other claimants who accepted offers and their amounts will be recalculated.

So where are we now?

[Update] Thanks to a reader, who sent me this AG update received late Monday afternoon:

As of 4 p.m. today, 49 of the 65 claimants have officially accepted the State’s settlement offers and signed releases. These include the estates of all seven deceased victims. The running total of the dollar amount for the settlements accepted thus far is $4,873,092.77, or about 97 percent of the $5 million total funds available in the Tort Claim Fund. Another six claimants have signaled their intention to sign the settlement paperwork and we are waiting to receive it.

Claimants’ settlement acceptance forms that are postmarked by midnight tonight (Monday night) will be accepted. It will be later this week before we can provide a final tally of claimants accepting offers and their amounts.

As updates are received from our claims administrator I will forward them to you.

ILB: Still waiting for final tally.

Posted by Marcia Oddi on Wednesday, December 14, 2011
Posted to Stage Collapse

Tuesday, December 13, 2011

Ind. Courts - Reactions to this afternoon's oral argument

Shortly after today's oral argument concluded, AG Zoeller released this statement, headed "Attorney General’s statement on appellate hearing in attempted feticide case: Trial court should be affirmed and case decided by a jury."
Some quotes:

INDIANAPOLIS – Today the Indiana Court of Appeals heard oral argument in the case of Bei Bei Shuai v. State, an interlocutory appeal of a Marion County case where Shuai awaits trial on murder and attempted feticide charges. The Indiana Attorney General’s Office represents the State in appellate court, and the State’s position is that the trial court’s preliminary rulings – denying bail and not dismissing the charges – should remain intact so trial can proceed. Indiana Attorney General Greg Zoeller today issued this statement:

"This case generates strong opinions but the State's position adheres to the longstanding principle that a jury must weigh any facts, even those that go to the defendant's intent, and therefore the trial court is where this case belongs. The defense can argue its interpretation of the facts to the jury but the county prosecutor need not accept at face value the defense’s assertions,” Zoeller said.

The ILB has reached IU McKinney Law School professor Joel Schumm for his reaction to the statement. He responded:
Cases are sometimes not about facts. If the charge is insufficient as a matter of law, why should the case go to a jury? Surely the answer is not, as the [AG's] press release suggests, that a motion to dismiss should never be granted.

Criminal defense attorneys often file motions to dismiss when the facts alleged do not constitute an offense as a matter of law. Some of them are granted and upheld on appeal. Examples include: State v. Moore and State v. Fettig. Some are denied and upheld on appeal, such as Smith v. State.

Recent entries involving some other motions to dismiss include "Former Principal Wants Failure To Report Case Tossed: Penn State Case, Paterno Cited In Court Brief" from Nov. 17, 2011, and Charlie White's challenge to the criminal charges pending against him.

From WISH TV tonight
, an AP story by Charles Wilson on today's argument. Some quotes:
INDIANAPOLIS (WISH) - Since suicide isn't a crime, there's no way a Chinese immigrant could have known she would be charged with murder and feticide for trying to kill herself while she was pregnant, her attorney told the Indiana Court of Appeals on Tuesday. * * *

Her attorney, Linda Pence, who had filed a pre-trial appeal, asked the three-judge panel to order the charges dismissed or at least allow Shuai to be released on bail.

"While it was a tragic decision, it was not unlawful," Pence said. She argued that Indiana's feticide and murder laws were written or amended to protect fetuses from violence from third parties, not from their own mothers. She said suicide isn't a crime and Shuai couldn't have expected to be arrested for attempting to kill herself.

"No pregnant woman has been put on notice that if they are depressed and try to do harm to themselves that they would be charged with feticide," Pence said.

Judge Edward Najam said that raised the argument that Shuai's due process rights had been violated. But he said the court would try first to decide the case on statutory, not constitutional, issues.

"At the heart of your case is due process," Najam said. "Your argument is that she only found out it was a crime after the fact."

Deputy attorney general Ellen Meilaender said that the case wasn't about suicide. She told the court that Shuai was charged because she "took another viable life."

"The crime is harming someone else in the context of your suicide," Meilaender told the panel, which included one man and two women.

The state has contended for months that Shuai intended to kill her unborn baby, not just herself.

Meilaender refused to concede that the statute might be vague. "It's very clear that just because you're trying to commit suicide at the time you take another life that that doesn't excuse you of liability," she said.

Pence argued that similar cases in other states had been decided in favor of the mothers. "Other states' courts seem to come to the conclusion that this is wrong and they get rid of it however they can," she said. "They realize this is a bad, bad action to charge and it doesn't belong in the criminal system." She questioned how murder and feticide laws could apply to pregnant women without also applying to legal abortion.

The judges also questioned both attorneys on how the law could apply since the infant was a fetus when Shuai allegedly ate poison, but didn't die until after she had been delivered. But Meilaender said the fact that the child was born alive didn't lessen the crime, and evidence showed without medical intervention the fetus would have died.

Najam said the judges would decide the case as soon as possible. He warned both sides not to interpret the judges' questions as a sign of which way they were leaning. "We don't know what we're going to decide," he said.

Indiana Attorney General Greg Zoeller said in a statement issued after the hearing that the charges should remain intact so Shuai's trial could proceed. * * *

Groups including the American Medical Women's Association, National Advocates for Pregnant Women and the American Civil Liberties Union have filed legal briefs on Shuai's behalf.

Pence said afterward that she thought the hearing had gone well and the judges had asked pointed questions. "The judges had clearly read, really reviewed the briefs," she said.

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Indiana Courts

Ind. Courts - Bei Bei Shuai oral argument worth watching

Outstanding oral argument just concluded in Bei Bei Shuai appeal. If you missed the live feed, you may watch it here as soon as the replay is available.

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Indiana Courts

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

For publication opinions today (2):

Richard M. Clokey v. Penny M. Bosley Clokey is a 2-page opinion granting rehearing in order to clarify he ability of the husband to satisfy the maintenance obligation, concluding:

Thus, even though the trial court did not state so explicitly, the court considered Richard’s sources of income and his ability to pay the maintenance award. Therefore, we cannot say that the trial court abused its discretion. We affirm our opinion in every respect.
In Richard and Elizabeth Ryan v. Lawyers Title Insurance Corp. and Elaine E. English d/b/a Agri-Town Agency, a 14-page opinion, Judge Brown writes:
Richard and Elizabeth Ryan appeal the trial court’s ruling granting summary judgment in favor of Lawyers Title Insurance Corporation (“Lawyers Title”) and Elaine E. English d/b/a Agri-Town Agency (“Agri-Town”). The Ryans raise four issues, which we consolidate and restate as whether the trial court erred in granting summary judgment in favor of Lawyers Title and Agri-Town. We affirm.
NFP civil opinions today (4):

The Huntington National Bank v. George P. Broadbent (NFP)

M. Dale Palmer v. Kay Palmer (NFP)

Edna Kelly v. Johnny Conway, d/b/a Conway Service (NFP)

Almaz M. Whyte v. Sam Christie (NFP)

NFP criminal opinions today (4):

Robert E. Posey v. State of Indiana (NFP)

Donald Hurm v. State of Indiana (NFP)

Clifton J. Savage v. State of Indiana (NFP)

Nicholas Ryan v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from the Supreme Court

In Steven Spangler and Heidi Brown v. Barbara Bechtel, Expectations Women's Health and Childbearing Center, and St. Vincent Randolph Hospital, a 17-page, 5-0 opinion, Justice Dickson writes:

Following the death of their full-term baby daughter in utero during labor, just before childbirth, the plaintiffs Steven Spangler and Heidi Brown brought this action seeking damages for negligent infliction of emotional distress. In the ensuing litigation, the trial court granted summary judgment to St. Vincent Randolph Hospital, to Barbara Bechtel (the nurse-midwife who provided pre-natal care during the mother's pregnancy and managed her labor at the hospital), and to Expectations Women's Health and Childbearing Center ("the Center") (alleged by the plaintiffs to be Bechtel's employer). The Court of Appeals reversed as to all three defendants. Spangler v. Bechtel, 931 N.E.2d 387 (Ind. Ct. App. 2010). We granted transfer and now hold that the parents' separate actions seeking damages for emotional distress from experiencing the stillbirth of their child are not barred by the Indiana Child Wrongful Death Act or the Indiana Medical Malpractice Act.

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Three-part national series on backlogged state agencies

Stateline today begins a three-part series with the overall title of "Backlogged: The growing wait for state services":

States across the country are seeing growing backlogs of work, as shrinking staffs struggle to meet rising demand for some services. From public housing to crime labs, restaurant inspections to court systems, four years of layoffs, furloughs and hiring freezes are beginning to take a toll.
Today's lengthy story, by Melissa Maynard, is headed "Short-staffed and budget-bare, overwhelmed state agencies are unable to keep up ."

Today
: Agencies overwhelmed
Wednesday: Anatomy of a backlog
Thursday: How one agency overcame its backlog

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Indiana Government

Ind. Law - Changes in leadership at IU Mauer School of Law

"IU Maurer School of Law dean named interim provost" is the heading to this Dec. 6, 2011 news release that begins:

BLOOMINGTON, Ind. -- Indiana University announced today, Dec. 6, that Lauren Robel, dean of the Indiana University Maurer School of Law in Bloomington, has been named interim provost for its Bloomington campus. She succeeds Karen Hanson, who will leave the university Jan. 31 to accept a role as senior vice president and provost at the University of Minnesota.

Robel was appointed provost, the top academic officer for the Bloomington campus, on an interim basis by Indiana University President Michael A. McRobbie, subject to approval by the university's Board of Trustees. The board is expected to vote on the appointment at its next regular meeting Dec. 8-9.

"Buxbaum named interim dean of IU Maurer School of Law" is the heading to this Dec. 9, 2011 news release that begins:
BLOOMINGTON, Ind. -- The Board of Trustees of Indiana University has appointed Hannah L. Buxbaum as acting dean of the Indiana University Maurer School of Law, effective Feb. 1.

Buxbaum is currently executive associate dean for academic affairs and John E. Schiller chair in legal ethics at the Maurer School of Law.

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Indiana Law

Courts - A blog about cases ripe for review

AppellateDaily points to a new blog, Circuit Splits. The two most recent entries are on the Arizona immigration case and "Does the First Amendment protect a teacher’s classroom speech?"

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Courts in general

Ind. Gov't. - "Richmond Sanitary District customers scramble after billing mistake: Officials asking for money owed but never charged"

Bill Engle reports today in the Richmond Palladium-Item in a long story that begins:

Five hundred Richmond Sanitary District customers will have to pay back money they owed on their sewer bill but were not charged because of a clerical error at Indiana American Water Co.

The water company collects and processes sewer bills through Indiana American water bills. Officials there began informing customers last week.

Water company officials said the mistake resulted in about $97,000 not being collected from 502 customers for "a couple of years in some cases," said Jeff Hensen, Indiana American senior business development manager.

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Indiana Government

iND. cOURTS - "1.8 Million New Cases Filed in Indiana Trial Courts in 2010"

The latest set of Indiana court statistics is now available. Here is the press release. Here is the link to the massive report.

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Indiana Courts

Ind. Courts - Editorials on CJ Shepard's successor

An editorial in the NWI Times, headed "Continue working on Shepard's legacy," reviews the CJ's successes, finding that "Indiana's judicial process is being brought into 21st century" and concludes "Indiana has come too far to see the momentum falter."

An editorial in the Fort Wayne Journal Gazette ends with:

Commission members and the governor all need to realize that diversity on the court is crucial and that Indiana’s status as one of just two states with no female justices is an embarrassment, with both practical and symbolic repercussions.

Shepard has served Hoosiers well, but an all-male court is by definition limited in its outlook. Daniels has an opportunity to make the court even better.

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Indiana Courts

Ind. Gov't. - "Communities offer alternatives to revolving door of prison"

Updating yesterday's ILB entry, here is part 3 of the Kokomo Tribune's "three-day series examining the issue of minor felony convictions related to Indiana prison overcrowding, offender recidivism and sentencing fairness, along with legislative reform intended to ease the problems." Today's story is reported by Lisa Trigg of Logansport's Pharos Tribune. Today's long story begins:

TERRE HAUTE, Ind. — A second arrest for driving while intoxicated landed Wimberly Tyler in the Vigo County jail last September, looking at a Class D felony charge and up to three years behind bars.

But rather than being just another warm body warehoused in state prison at taxpayers’ expense, Tyler is working and paying for his own incarceration. He has been assigned to the work release program through Vigo County Community Corrections, and he holds a 30- to 40-hour a week job at a local restaurant in Terre Haute.

“It’s given me a chance to save up money and get back into the community,” Tyler said of his pre-trial placement in the program. “It’s a lot better than going to prison.”

Community corrections is a broad term for the local corrections/criminal justice system that provides effective alternatives to imprisonment at the state level. Local programs are operated as independent county agencies — some housed in a facility separate from the county jail, others operated on contract with local office oversight.

The Indiana Department of Correction encourages counties to initiate their own programs, and offers grant funding to keep the costs off local taxpayers. While 78 of Indiana’s 92 counties now have some form of community corrections, another five counties are talking to the DOC about setting up a local program, according to Mike Lloyd, director of the DOC’s community corrections and community transition programs.

“It’s just good common sense,” Lloyd said of having monitored, rehabilitative incarceration in the communities where offenders live. “It doesn’t serve the taxpayers any purpose to put low-level offenders into a DOC facility where there’s no opportunity to get support or treatment.”

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Indiana Government

Ind. Gov't. - More on "David Lott Hardy, Ex-IURC chairman indicted in Duke ethics scandal"

Updating yesterday's ILB entry, John Russell has a lengthy, front-page story in today's Indianapolis Star, putting the indictment in perspective. Some quotes from the must-read story:

Just a year ago, David Lott Hardy was one of the most powerful and colorful officials in Indiana, ruling over a vast state agency that oversaw $14 billion a year in utility rates paid by Indiana customers. He drove an expensive BMW sports car and dined in posh Downtown steakhouses.

Now, Hardy is facing felony charges for his conduct in office.

A Marion County grand jury on Monday announced the indictment of Hardy on three counts, saying that he failed to disclose secret meetings with Duke Energy Corp. and that he helped the agency's top lawyer break ethics laws. * * *

Hardy could not be reached for comment at his Fort Wayne home. His lawyer, David Hensel, said Hardy denied any criminal wrongdoing and did not personally gain from any of his actions.

"Mr. Hardy denies participating in any improper ex parte communication or aiding anyone in violating any law," Hensel said. * * *

[Governor] Daniels, a Republican, said Monday he did not think that Hardy's actions were criminal when he fired him 15 months ago. But he said the indictment would not hurt public confidence in the Edwardsport plant, which he has strongly supported.

"It's the right thing for this state," Daniels said. "If we want clean and affordable power, if we want to pay Hoosiers for it and we want to be a leader in cleaner energy, we should have that plant. These things (indictments) are all completely to the side. It had nothing to do with the merits" of the plant.

Curry said he doesn't expect to seek further indictments in the case, unless new information comes to light.

For background, see this list of earlier ILB entries. The list includes most of the earlier ILB entries referencing Star stories about the IURC and Duke. Unfortunately, many of the links to important Star background stories lead to notices saying the stories are no longer freely available.

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Indiana Government

Ind. Courts - "Man gets 6 years for seeking sex with teen"

Sophia Voravong reports today in a long story in the Lafayette Journal Courier:

Erik S. Epperson, 22, flew more than 2,000 miles last January to have sexual intercourse with a 14-year-old girl he met through a mutual friend on Facebook. Now the Veedersburg man will spend six years and six months in prison for it.

During a news conference Monday, U.S. Attorney Joe Hogsett said Epperson's case is just one example of child exploitation crimes that come into his office weekly. Hogsett represents U.S. District Court for the Southern District of Indiana based in Indianapolis.

Epperson's actions highlight the dangers that minors can run into through social networking sites, such as Facebook and Twitter, Hogsett said. He described Epperson as a predator against teenage girls.

"Where the danger begins is when they start to engage in conversations with people that they not only don't know, but have no way of verifying that they are who they purport to be," Hogsett said. "That is where I think parents and children need to be mindful that they're starting to engage in potentially dangerous activity."

Epperson was charged in July with one count of travel with intent to engage in illicit sexual conduct, and he pleaded guilty the same day. His sentence was handed down last week. * * *

Hogsett said the Internet Crimes Against Children Task Force seized Epperson's computer as part of the investigation, which revealed other sexual relationships with 10 underage girls in Indiana and Illinois -- including at least one from Lafayette -- most of whom he met on Facebook between 2009 and 2011.

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Online commenter IDs may be divulged" says story

Yesterday's oral argument before the Court of Appeals in the case of Indiana Newspaper, Inc., D/B/A/ The Indianapolis Star (for background, start with this ILB entry from Dec. 10th and its links)is the subject of a story reported today by Dan Carden in the NWI Times. Some quotes:

INDIANAPOLIS | The Indiana Court of Appeals seems likely to require disclosure of the names and identifying information of anonymous commenters who make defamatory statements on newspaper websites.

A three-judge appellate panel clearly was not persuaded Monday by an Indianapolis Star argument that online comments are the equivalent of anonymous news tips, which would exempt them from disclosure under Indiana's journalist shield law.

The state's largest newspaper was sued last year after online reader "Downwiththecolts" accused Jeffrey Miller, former CEO of Junior Achievement of Indiana, of stealing the business education group's funds in the comments section of a story about Miller's retirement.

A Marion County court ordered the Star in March to share its information about "Downwiththecolts" with Miller, who intends to sue for defamation.

Miller's attorney, Kevin Betz, said the Star cannot be allowed to protect a commenter who made false statements harming Miller's reputation. "This is not about free speech. This is about illegal speech," Betz said. "This is an attempt to tell the victim of defamation, who has a constitutional right to repair his reputation, that you're toast."

Judge Carr Darden and Judge Nancy Vaidik, a Porter County native, spent much of the hourlong oral argument session bouncing questions off the attorneys and each other about how best to require disclosure of the names of anonymous commenters.

Vaidik said from the bench she didn't understand why the Star was defending anonymous online comments. "Why would a newspaper want to provide protection for a blogger that they're not using as a confidential source?" Vaidik asked.

Posted by Marcia Oddi on Tuesday, December 13, 2011
Posted to Indiana Courts

Monday, December 12, 2011

Law - Visualizing Student Loan Debt

Student Loan Debt: 1990 vs 2000 vs 2011. Here, via BuzzFeed.

Posted by Marcia Oddi on Monday, December 12, 2011
Posted to General Law Related

Environment - "Posey man opposing drilling under his land loses new round"

This dispute is still at the administrative stage. Thomas B. Langhorne reports today in the Evansville Courier & Press in a long story that begins:

POSEY COUNTY, Ind. — A Posey County man has one last chance to avoid going to state court to try to stop an 80-acre crude oil drilling project that he says will trespass on his property.

If he fails, Gary Williams says, going to court is exactly what he will do.

“I’m ready to take it to the next level,” said Williams, who has single-handedly stalled the CountryMark Energy Resources LLC project by refusing to sign papers to allow drilling underneath his potentially oil-rich property.

CountryMark, which proposes to send a remote access horizontal drill underneath Williams’ 0.83-acre property, has responded by pursuing “forced pooling,” a legal process critics liken to eminent domain for drillers.

Thirty of Williams’ neighbors in the 32-parcel drilling area, a rural area just off Middle Mount Vernon Road, have leased their acreage to CountryMark.

Williams, a 36-year-old chemist for a paint company, has already lost two rounds in the ongoing legal battle.

In a non-final order that finds no legal basis for Williams’ assertions, an Indiana Natural Resources Commission hearing judge preliminarily affirmed the state Department of Natural Resources’ previous order allowing the drilling.

That leaves Williams, who has filed objections, to present oral arguments on Jan. 12 to the Natural Resources Commission’s Administrative Orders and Procedures Act Committee in Indianapolis.

Posted by Marcia Oddi on Monday, December 12, 2011
Posted to Environment | Ind. Adm. Bd. Decisions

Ind. Decisions - Transfer list for week ending December 9, 2011

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Nov. 18, 2011 list.]

Here is the Clerk's transfer list for the week ending December 9, 2011. It is one page (and 8 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, December 12, 2011
Posted to Indiana Transfer Lists

Ind. Decisions - Two Supreme Court disciplinary opinions today

In the Matter of Stanley Kahn is a one-page Order, dated Dec. 8, 2011, that reads in part:

On July 24, 2011, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission's investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court's order to show cause. On October 18, 2011, the Commission filed a "Request for Ruling and to Tax Costs."

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

In the Matter of Jeffrey A. Golding is a 2-page Order granting conditional reinstatement, also dated Dec. 8. Some quotes:
By order dated October 13, 1998, this Court suspended Petitioner for not less than nine months without automatic reinstatement. * * *

This Court, being duly advised, finds that the recommendation of the Disciplinary Commission should be accepted and that, accordingly, Petitioner should be conditionally reinstated as a member of the Indiana bar and placed on probation for a period of no less than one year. The Court incorporates by reference the recommended terms and conditions of probation, to which Petitioner agrees, which shall be applicable if Petitioner enters private practice. * * *

The Court notes that there is a possibility that Petitioner may be offered a position with a prosecutor's office. The above conditions apply only if Petitioner enters private practice within one year of his reinstatement and shall then be in effect for one year after entering private practice. Petitioner shall promptly notify the Commission of his employment status after reinstatement and of any changes in such status during the term of his probation. In any case, Petitioner's probation shall remain in effect until it is terminated pursuant to Admission and Discipline Rule 23(17.1).

Posted by Marcia Oddi on Monday, December 12, 2011
Posted to Indiana Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Term. of Parent-Child Rel. of A.B.; K.S. v. The Indiana Dept. of Child Services, and Child Advocates, Inc. (NFP)

Douglas Garwood v. State of Indiana (NFP)

Natosha Canfield, Individually, and Next Best Friend of D.C., Minor v. Clarian Health Partners, Inc. d/b/a Methodist Hospital (NFP)

NFP criminal opinions today (3):

Lorenzo Stewart v. State of Indiana (NFP)

James Groff v. State of Indiana (NFP)

Steven E. Abernathy v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 12, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "David Lott Hardy, Ex-IURC chairman indicted in Duke ethics scandal"

John Russell reports this morning on the IndyStar website:

The former chairman of the Indiana Utility Regulatory Commission has been indicted on a three felony counts of official misconduct in cases concerning Duke Energy Corp.

A Marion County grand jury today issued the indictment against David Lott Hardy, who was fired by Gov. Mitch Daniels in October 2010 after the utility hired Scott Storms, the agency's general counsel, as a regulatory attorney in its Plainfield office.

The first count of the indictment accuses Hardy of knowingly aiding and abetting Storms by communicating with employees of Duke Energy regarding Storms' prospective employment while allowing Storms to continue to participate in proceedings involving the utility.

The second count accuses Hardy of failing to disclose a secret, ex parte communication with Duke Energy that occurred on March 17, 2008 with an employee of Duke concerning cost overruns at the utility's Edwardsport coal-gasification plant.

The third count accuses Hardy of failing to disclose a secret, ex parte communication with Duke Energy that occurred on Feb. 24, 2010, concerning cost overruns at the Edwardsport power plant.

[More] Here is Niki Kelly's coverage in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Monday, December 12, 2011
Posted to Indiana Government

Courts - "Another landmark ruling in the offing"

Lyle Denniston's just-posted SCOTUSblog entry today begins:

Adding further to the historic rank of the Supreme Court’s current Term, the Justices on Monday took on the searing constitutional — and political — controversy over state power to strictly limit the way undocumented immigrants live their lives in the U.S. Along with the politics-saturated but deeply consequential constitutional disputes over the new federal health care law and the role of federal courts in drawing up new election districts to protect minority voters’ rights, the Term that will run through late June is assured of being one of the Court’s most significant single years ever.

Posted by Marcia Oddi on Monday, December 12, 2011
Posted to Courts in general

Stage collapse - "'Take it or leave it' offer ends today: Claimants who reject payment lose chance for any state money related to the stage collapse" [Updated]

Alex Campbell reports today in the Indianapolis Star - here is a snippet:

As of Friday, 20 had come forward to claim their money, for a total of $2.82 million, the attorney general's office said.

Any unclaimed cash will go back to victims who did claim the money. The state will pay $5 million, the most that it is allowed to give out under law.

[Updated] See also the Star's editorial today, headed "Fair victims deserve a better deal."

Posted by Marcia Oddi on Monday, December 12, 2011
Posted to Stage Collapse

Ind. Gov't. - "Push for prison downsizing focuses on low-level offenders"

Updating yesterday's ILB entry, here is part 2 of the Kokomo Tribune's "three-day series examining the issue of minor felony convictions related to Indiana prison overcrowding, offender recidivism and sentencing fairness, along with legislative reform intended to ease the problems."

Today's story is headed "Same crime, different time" and is reported by Maureen Hayden. It begins:

INDIANAPOLIS — At first glance, the rural Indiana counties of Huntington and Martin look like they’d have much in common.

Both are populated with small towns that pride themselves on safe streets and some of lowest crime rates in the state.

But, for law-breakers, the difference between the two counties is stark.

According to numbers released by the Indiana Department of Correction this summer, the odds of getting prison time for committing the most common crimes are higher in Huntington County than anywhere else in the state. The odds in Martin County — near zero.

The same numbers — taken from a 12-month count of DOC inmates convicted of the lowest-level felony offenses — shows a similar disparity in Indiana urban counties with high crimes rates.

From August 2010 to July 2011, Marion County, home to nearly a million people, sent 100 times more class D felons into the DOC than Lake County, which is half its size.

Indiana law gives counties sentencing options for class D felons ranging from probation to prison time. But the DOC numbers show a patchwork quilt of incarceration across the state, suggesting a wide variation in how different counties treat the same offenses.

Posted by Marcia Oddi on Monday, December 12, 2011
Posted to Indiana Government

Ind. Courts - "Inside family court: Drama, tears and a sadly typical day"

Dave Bangert's long story in the Sunday Lafayette Journal Courier begins:

So where do you start in telling about a Wednesday in late November in Tippecanoe Superior Court 3, one that more than a few regulars in the court where juvenile and family matters are heard chalk up as a typical day?

Posted by Marcia Oddi on Monday, December 12, 2011
Posted to Indiana Courts

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

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

But first, please think about supporting the ILB in 2012!

From Sunday, December 11, 2011:

From Saturday, December 10, 2011:

Posted by Marcia Oddi on Monday, December 12, 2011
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/12/11):

Thursday, December 15th

Next week's oral arguments before the Supreme Court (week of 12/19/11):

Tuesday, December 20th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/12/11):

Monday, December 12th

Tuesday, December 13th

Thursday, December 15th

Next week's oral arguments before the Court of Appeals (week of 12/19/11):

Monday, December 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, December 12, 2011
Posted to Upcoming Oral Arguments

Sunday, December 11, 2011

Courts - "Statewide Coordination of Problem-Solving Courts: A Snapshot of Five States"

From the press release from the U.S. Department of Justice:

This report highlights five states (California, Idaho, Indiana, Maryland, and New York) and their efforts to coordinate problem-solving courts such as drug courts, mental health courts, domestic violence courts, and community courts. The most common goals of statewide coordination are quality assurance, training, funding, research and evaluation, technology, and advocacy. In the area of quality assurance, methods employed by statewide coordinators include creating and promulgating guidelines for planning and operation of courts; monitoring compliance with guidelines; identifying and promoting promising practices; and providing technical assistance. In the area of technology, statewide coordinators have adapted information systems to accommodate the needs of case management and compliance monitoring, and designed technology to meet research and evaluation needs.

Posted by Marcia Oddi on Sunday, December 11, 2011
Posted to Courts in general

Environment - "The State keeps landowners on the hook for leaking underground fuel tanks"

From Thomas B. Langhorne's Dec. 11th lengthy and comprehensive story in the Evansville Courier & Press:

Barring an extensive property-by-property records check, there is no way of knowing whether the sites on IDEM's list are abandoned or are owned and operated by parties taking responsibility for cleaning up leakage. IDEM does not track that data.

Even in the cases of abandoned properties that were purchased by a brownfields program or other new owners, the current owners are responsible for tank repairs and cleanup of the surrounding environment.

In fact, the owners of former and current sites of underground storage tanks bear all the responsibility for them under laws passed in the late 1980s and 90s. That includes registering the tanks with the state fire marshal and meeting regulations designed to prevent leaks.

Property owners in Indiana, for example, may not install new tanks unless those tanks have double walls and double wall piping from tank to dispenser.

Owners of working underground storage tanks must monitor the tanks for leakage with daily depth measurements and sales record checks, investigate suspected leakage, assess the extent of any soil or groundwater contamination and report it to IDEM. The state agency's inspectors and the property owners, who are often represented by environmental consultants, then identify and launch strategies to clean up the contamination.The greater responsibilities, and the costs associated with them, inspired some property owners to remove and replace their tanks with improved models. Some also abandoned properties.

Posted by Marcia Oddi on Sunday, December 11, 2011
Posted to Environment

Courts - "Jefferson Circuit Court Judge Irv Maze declared a mistrial after some potential jurors said they had read a story about the suit published that morning in The Courier-Journal"

On the morning of Dec. 5, 2011 the Louisville Courier Journal ran a long, front-page story, reported by Andrew Wolfson, that began:

With its ad campaigns advising the injured and maimed that they “better call Becker,” Louisville’s Becker Law Office says it has represented 30,000 people over 25 years.

Now it is embroiled in a legal battle with one of them.

In a bitterly fought lawsuit set for trial today in Jefferson Circuit Court, Tonia Freeman says the firm filed a $10 million claim on her behalf for an injury that cost her a leg, but botched the case by failing to file suit on time. And then, she said, the firm dismissed her as a client, saying only that “our resources and time restraints do not allow us to go forward any further.”

A very brief story two days later reported:
The trial of a malpractice lawsuit against the Becker Law Office and other defendants has been rescheduled for Jan. 31.

The trial was scheduled to begin Tuesday. But Jefferson Circuit Court Judge Irv Maze declared a mistrial after some potential jurors said they had read a story about the suit published that morning in The Courier-Journal.

In the lawsuit, Tonia Freeman of Radcliff claims Becker failed to file a suit on time seeking compensation for an injury she suffered at Fort Knox. The firm and the other defendants deny they were negligent.

Thanks to The Kentucky Law Blog for the heads up.

Posted by Marcia Oddi on Sunday, December 11, 2011
Posted to Courts in general

Ind. Gov't. - "'Found' revenue calls Daniels' austerity into question"

That is the headline to Eric Bradner's column in the Sunday Evansville Courier & Press. It begins:

INDIANAPOLIS — The curious case of Indiana's lost-and-found $320 million comes with too many unanswered questions to just shake it off and call it good news.

The starting point is this: If Gov. Mitch Daniels were a candidate and the administration of the person he sought to replace had committed such an error, it's tough to imagine that Daniels would not accuse his opponent of incompetence.

He might even have lambasted the sitting administration for failing to identify — specifically — the responsible party, and failing to outline the tighter controls that would prevent such a situation from happening again.

Posted by Marcia Oddi on Sunday, December 11, 2011
Posted to Indiana Government

Ind. Gov't. - "Push for prison downsizing focuses on low-level offenders"

That is the headline to this story today in the Kokomo Tribune, written by Scott Smith. From the Editor's Note:

This is the first in a three-day series examining the issue of minor felony convictions related to Indiana prison overcrowding, offender recidivism and sentencing fairness, along with legislative reform intended to ease the problems.
Today's long, worth reading in full story begins:
After the Madison County judge looked at Bruce A. Wilson’s pre-sentence report, he made a decision, based in part, the judge said, on Wilson’s “lack of remorse.”

So Wilson, busted with two ounces of marijuana tied up in three bags, $3,900 in cash and no prior felony convictions, was sentenced to three years in the Indiana Department of Correction for something which would have earned him a citation and a fine in Ohio.

Unfair? Not according to the Indiana Court of Appeals, which upheld the sentence.

Thus, Wilson became a statistic, one of the growing numbers of low-level felons in Indiana’s prison system, which grew by 41 percent between 2000 and 2009, a period which saw an almost perfectly corresponding drop in violent crime. Individuals like Wilson, convicted and sentenced on a Class D felony charge — the least severe of Indiana’s four felony grades — are the reason for that increase.

Posted by Marcia Oddi on Sunday, December 11, 2011
Posted to Indiana Government

Law - "Pssst ... Wanna Buy a Law? When a company needs a state bill passed, the American Legislative Exchange Council can get it done"

The ILB has posted several earlier entries on the American Legislative Exchange Council (ALEC). This one from July 17, 2011 would be a good place to start.

In the Dec. 1, 2011 Bloomberg Businessweek, reporters Brendan Greeley and Alison Fitzgerald have this very lengthy story. Here is a quote from the story:

The American Legislative Exchange Council, a nonprofit based in Washington, brings together state legislators, companies, and advocacy groups to shape “model legislation.” The legislators then take these models back to their own states. About 1,000 times a year, according to ALEC, a state legislator introduces a bill from its library of more than 800 models. About 200 times a year, one of them becomes law. The council, in essence, makes national policy, state by state.

ALEC’s online library contains model bills that tighten voter identification requirements, making it harder for students, the elderly, and the poor to vote. Such bills have shown up in 34 states. According to NPR, the Arizona bill that permits police to detain suspected illegal immigrants started as ALEC model legislation. Similar bills have passed in Alabama, Georgia, Indiana, and Utah, and have been introduced in 17 other states. Legislators in Oregon, Washington, Montana, New Hampshire, and New Mexico have sponsored bills with identical ALEC language requiring states to withdraw from regional agreements on CO2 emissions. Sound a national trend among state legislators, and often you will find at the bottom of your plumb line a bill that looks like something that has passed through the American Legislative Exchange Council.

Paul Weyrich started the council in 1973 with a group of Republican state legislators. Weyrich also founded the Heritage Foundation and coined the phrase “moral majority.” More than 2,000 state lawmakers belong to ALEC; each pays $50 in yearly dues. A look at former members now on the national stage suggests the organization is a farm team for Republicans with ambition. There are 92 ALEC alumni serving in the U.S. House, 87 of them Republicans. In the Senate, eight Republicans and one Democrat are ALEC alumni, according to information found on ALEC’s website in April that has since been removed. According to the Center for Media and Democracy, a Madison (Wis.) research group, four sitting governors were members, including John Kasich of Ohio and Scott Walker of Wisconsin. * * *

ALEC does not share a list of the model bills that become law or the full text of any of its model bills. Until the Center for Media and Democracy published the entire library earlier this year, it was hard to figure out which state laws might have come from the council’s library. The council also doesn’t share a list of its members, complicating any attempt to figure out which members—legislators or companies—might have brought the legislation to ALEC in the first place. * * *

None of this is illegal. And it’s effective. It allows companies to work directly with legislators from many states, rather than having to lobby in each state individually to get language into a bill. ALEC says its mission is to help state legislators collaborate around the Jeffersonian principles of free markets, limited government, federalism, and individual liberty. It does this, and something else, too. It offers companies substantial benefits that seem to have little to do with ideology. Corporations drop bills off at one end, and they come out the other, stamped with the imprimatur of a nonprofit, “nonpartisan” group of state legislators. Among other things, ALEC is a bill laundry.

See also this article from Karen Francisco's Learning Curve Blog in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Sunday, December 11, 2011
Posted to General Law Related

Ind. Courts - "Justice Shepard has been one of Indiana's best and brightess"

From the Evansville Courier & Press today, an editorial tribute to Justice Shepard. It begins:

When Randy Shepard first appeared on the public scene in Evansville, it was in politics, not the law, and it was in politics that he appeared to have the most promise. He was one of the bright young stars who joined the upstart -- and successful -- mayoral campaign of Russ Lloyd Sr., and later, he became the administrative assistant to the popular Republican mayor.

At that time, Shepard, a Harrison High School graduate who went on to Princeton and Yale Law, was clearly one of Evansville's best and brightest. He was smart and intellectually curious in a manner way beyond his years. It wasn't for lack of trying that he didn't rise up in the political ranks. Twice he sought a seat in the Indiana House of Representatives, but lost, and when Lloyd decided not to seek a third term, he ran for mayor, only to lose again. He finally gained election success in 1980 when he took his talents to the judiciary, winning a six-year term as a Vanderburgh County Superior Court judge in a nonpartisan election. And as they say, the rest is history.

Shepard moved up quickly. Just a few years later, Gov. Robert D. Orr, a friend of Shepard, appointed him to a vacancy on the Indiana Supreme Court, and two years after that, the Indiana Judicial Nominating Commission made him the chief justice of the state high court at the age of 38. It is a position he still holds, but one that he will voluntarily give up in March when he retires from the court.

Shepard, now 64, has had a truly remarkable career. He rose rapidly in the court, even though he came in with only limited experience. * * *

[A]s Shepard prepares to retire, we come to recognize that he was not only one of Evansville's finest products, but that he was truly one of Indiana's best and brightest.

Posted by Marcia Oddi on Sunday, December 11, 2011
Posted to Indiana Courts

Courts - "Status Offenders: Kentucky among nation's leaders in jailing children"

The Louisville Courier Journal today has a "Sunday exclusive" on Status Offenders. The intro:

Kentucky judges are jailing youths for truancy and other non-criminal offenses at one of the highest rates in the nation, side-stepping federal and state laws and ignoring the near-unanimous agreement of experts and advocates that it harms children.

Last year, more than 1,500 children were placed in juvenile jails for status offenses such as missing school or running away from home — acts that aren’t criminal under the law.

Although the number is declining — more than 1,700 such children were jailed the previous year — advocates say the number is far too high and no way to treat children whose problems may stem from abuse, neglect, poverty, mental illness, bullying or other social ills.

Unfortunately, "Sunday exclusive" seems to mean you have to subscribe to the paper or buy it at the newsstand to read it. However, there are a number of video clips and side-bars linked.

Posted by Marcia Oddi on Sunday, December 11, 2011
Posted to Courts in general

Saturday, December 10, 2011

Ind. Courts - "Court of Appeals weighs First Amendment claims for online newspaper comments: Case raises novel issues for Indiana courts involving nonparty discovery"

The Court of Appeals has issued a news release about the oral argument scheduled for Monday, Dec. 12 at 1:00 pm in the case of Indiana Newspaper, Inc., D/B/A/ The Indianapolis Star, a case that asks whether an Indiana newspaper must reveal the identity of an anonymous online commenter. From the release:

The Star appeals a Marion Superior Court order to reveal an anonymous commenter’s identity. The newspaper argues that the identity of a commenter known as “DownWithTheColts” is protected by the Indiana Shield Law, the First Amendment of the U.S. Constitution, and Article 1, Section 9 of the Indiana Constitution.

“DownWithTheColts” had commented on a 2010 Star story about an audit at Junior Achievement of Central Indiana. The comment on indystar.com said the newspaper should look to the former Junior Achievement president for the missing money. Jeffrey Miller, a former president and CEO of Junior Achievement, filed a complaint against Junior Achievement and other parties alleging defamation and other torts. He also sought nonparty discovery of “DownWithTheColts’” identity, which The Star now appeals.

No Indiana court has ever decided a case with these circumstances.

See also this ILB entry from November 29th.

Posted by Marcia Oddi on Saturday, December 10, 2011
Posted to Ind. App.Ct. Decisions

Law - "With Lobbying Blitz, For-Profit Colleges Diluted New Rules"

That is the headline to a lengthy front-page story in today's NY Times, reported by Eric Lightblau. Here is how it begins:

WASHINGTON — Last year, the Obama administration vowed to stop for-profit colleges from luring students with false promises. In an opening volley that shook the $30 billion industry, officials proposed new restrictions to cut off the huge flow of federal aid to unfit programs.

But after a ferocious response that administration officials called one of the most intense they had seen, the Education Department produced a much-weakened final plan that almost certainly will have far less impact as it goes into effect next year.

The story of how the for-profit colleges survived the threat of a major federal crackdown offers a case study in Washington power brokering. Rattled by the administration’s tough talk, the colleges spent more than $16 million on an all-star list of prominent figures, particularly Democrats with close ties to the White House, to plot strategy, mend their battered image and plead their case.

A very long story by Karen Francisco in the Dec. 4th Fort Wayne Journal Gazette is headed "Disgruntled student casts light on college’s promises." A sample:
Brown Mackie College-Fort Wayne is operated by Education Management Corp., the second-largest for-profit college company in the nation. In addition to its Brown Mackie campuses, Education Management runs Argosy University, South University and Art Institute campuses in several major cities, including the Art Institute of Indianapolis. Goldman Sachs owns 41 percent of the company.

In August, the U.S. Department of Justice sued Education Management Corp., accusing the company of violating federal law by tying recruiters’ pay to the number of students they enrolled. It alleges the company collected $11 billion in state and federal financial aid based on fraudulent practices.

Recruiters were encouraged to “enroll applicants regardless of their qualifications, including applicants who are unable to write coherently, applicants who appear to … be under the influence of drugs, and applicants for EDMC’s online program who do not own computers,” according to the lawsuit.

“The depth and breadth of the fraud laid out in the complaint are astonishing,” Harry Litman, a Pittsburgh lawyer representing the two whistle-blowers who prompted the suit, told the New York Times. “It spans the entire company – from the ground level in over 100 separate institutions up to the most senior management – and accounts for nearly all the revenues the company has realized since 2003.”

The Indiana attorney general’s office has filed a joint complaint in the federal lawsuit, alleging the six EDMC-managed schools in Indiana received more than $12 million in state financial aid based on false claims and misrepresentations. The states of California, Florida and Illinois also have intervened.

An update in the FWJG the following day reported:
An Indianapolis TV station highlighted the formal opening of a new Brown Mackie College campus at Circle Centre mall last month. Not mentioned was the pesky detail of an $11 billion fraud case facing Brown Mackie's parent company from the federal government or even the related $12 million fraud case the Indiana attorney general's office has leveled at the college.
Here is the FOX 59 story, headed "Brown Mackie College opens new site in Circle Centre Mall: The college announced their new Learning Site will be located on level 4 of the Circle Centre Mall in downtown Indianapolis. ."

Posted by Marcia Oddi on Saturday, December 10, 2011
Posted to General Law Related

Ind. Gov't. - "Attorney for secretary of state asks that recount panel's ruling be considered"

Another in the long list of Charlie White stories -- Charles Wilson of the AP reports on yesterday's hearing on the criminal charges against White. A few quotes:

Attorney Carl Brizzi told Hamilton Superior Court Judge Steven Nation that the recount panel's unanimous June ruling that White was eligible to run for office last year should have a bearing on White's bid to have the criminal charges against him dismissed. * * *

White faces a January trial on the charges, which also include perjury, unless Nation decides the counts should be dropped.

Nation said he would rule by Friday on that request. * * *

Democrats who filed the civil lawsuit with the Recount Commission seeking to oust him from office are appealing that decision to a Marion County judge, who is due to rule this month. * * *

Special prosecutor Dan Sigler Sr. said the civil and criminal cases are "not interwoven."

"It's a civil case -- it's not related to the criminal case," he said.

Sigler also said after the hearing that there are many cases of Indiana law that have concluded that Recount Commission actions do not prevent prosecutors or grand juries from moving ahead with criminal cases.

Posted by Marcia Oddi on Saturday, December 10, 2011
Posted to Indiana Government

Ind. Gov't. - More on "Drug Tests Botched By State Lab To Be Retested"

Updating this ILB entry from July 26, 2011, Tim Evans reports today in the Indianapolis Star in a story headed "Lab completes retesting of blood samples in court cases," that:

... the department is not yet releasing what those tests revealed -- including whether or not they confirmed initial positive findings that contributed to criminal convictions. * * *

The new tests were prompted by a technical review of thousands of cases from 2007-09 in which the department initially reported positive findings.

That technical review looked only at confirmatory paperwork from the original tests -- it did not involve retesting samples -- but the results were troubling. An independent team of scientists found 10 percent of the marijuana tests and one-third of the cocaine tests reported by the department as positive were not conducted in accordance with basic scientific standards. * * *

In July, the board recommended to the governor that the suspect marijuana and cocaine samples be retested to determine if the technical errors led to inaccurate results. At that time, the board also recommended that the results "should be conveyed to the prosecutors, defense and public in understandable language. In other words, the explanations made should explain the significance of the findings and what they mean in lay language."

At the same time, the board put a hold on the review of alcohol tests -- the largest number of cases and those requiring the most critical scientific analysis. Unlike the drug tests, which only must identify the presence of the substance to make a legal case, the alcohol tests must accurately quantify the amount of alcohol in a suspect's blood.

Indianapolis defense attorney J.J. Paul asked Johnston and the board at Friday's meeting if and when the review of alcohol tests would be restarted.

"We haven't decided what the next steps are," Johnston replied.

Paul said he found the response disconcerting -- and he fears the review will not get done.

"Frankly, the alcohol tests are the most fraught with errors, from my experience," Paul said. "It's frustrating, because I feel like it keeps getting put off without anyone having any sort of idea about what they are going to do."

Posted by Marcia Oddi on Saturday, December 10, 2011
Posted to Indiana Government

Friday, December 09, 2011

Ind. Gov't. - Majority of new toxicology board meets in private with law enforcement officials at a motel in Carmel

Updating a long list of ILB entries on the backlogs and errors at the state toxicology lab, including this one from June 20th that quotes from an Indianapolis Star story reported by Tim Evans and Mark Alesia:

Legal experts and state officials say they are hopeful that pulling the state Department of Toxicology out of Indiana University and making it a stand-alone state agency will lead to the end of long-standing problems at the lab that tests blood and urine samples for criminal cases.

The move comes as a result of legislation approved by the General Assembly in response to complaints about the lab's performance, including long delays in receiving test results and concerns about the accuracy of those results. * * *

The legislation calls for the creation of a three-member advisory board, appointed by the governor, to oversee the department.

Today's Indianapolis Star has this long story from reporter Evans, who writes in a story headed "Private meeting raises outcry: Toxicology board's session with police violated state law":
If the recently created board that oversees the state Department of Toxicology was looking to assure the public that the department's well-documented troubles are in the past, this probably wasn't the best way to start:

The board violated the state's public meeting laws last month when two of its three members -- and therefore, a majority -- met privately with a group of prosecutors and police officers.

No action was taken, but advocates of ethical government as well as defense attorneys say the meeting is of particular concern. That's because one of the long-standing criticisms of the state's toxicology department is the perception of many that it has had an inappropriately cozy relationship with law enforcement -- and especially prosecutors. * * *

That board members would meet with just one side in secret raises two important questions:

Is the board defaulting to what some have argued is the department's past practice of providing deferential treatment to law enforcement -- even when that may go against best-practice science?

Is the new board committed to being open and transparent in its conduct of public business? * * *

Good-government advocates agree and say there is another issue.

"Even if the board did not take any 'official' action, there is real harm," said Gerry Lanosga, a board member of the Indiana Coalition for Open Government and a journalism professor at Ball State University.

"The public in entitled to hear and be a part of these types of discussions. This is not a no-harm, no-foul situation. It is a serious breach."

Indiana's Open Door law prohibits gatherings at which a majority of a public board is present and business is discussed unless the meeting is properly advertised and open to all citizens.


Posted by Marcia Oddi on Friday, December 09, 2011
Posted to Indiana Government

Stage collapse - "$5M in Settlements to be Paid to Indiana State Fair Victims"

Here is Claims Journal's coverage of the payment plan announced by AG Zoeller.

Posted by Marcia Oddi on Friday, December 09, 2011
Posted to Stage Collapse

Courts - "Oregon judge rules bloggers aren't journalists"

Steven Musil of CNET has the story here. A quote from the story:

Despite Oregon's legal definition of "any medium of communication," Judge Marco A. Hernandez disagreed with Cox, saying that "although [the] defendant is a self-proclaimed 'investigative blogger' and defines herself as 'media,' the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law in the first instance."
The judge further ruled that even if Cox had qualified for shield law protections, they would not have applied to protecting the identity of the source of allegedly defamatory content in a civil trial. "Because this case is a civil action for defamation, defendant cannot rely on the media shield law," he said.
The story includes a link to the 11/30/11 federal District Court of Oregon opinion.

Posted by Marcia Oddi on Friday, December 09, 2011
Posted to Courts in general

Ind. Courts - Updating: Fort Wayne Airport defends handbill policies in face of lawsuit

Updating earlier ILB entries with this heading, Rebecca S. Green of the Fort Wayne Journal Gazette reported Dec. 8th in a long story that begins:

A federal judge ruled in favor of the s, finding that restrictions on where people can pass out literature in the airport do not violate the constitutional right to free speech.

The ruling, issued Monday by U.S. District Court Judge Theresa Springmann, brings to an end a lawsuit filed this year by Paul Anthony Stanton.

In his lawsuit, Stanton alleged that rules created by the airport authority in November 2010 violated the First Amendment of the Constitution.

The rules were adopted last fall, after concerns were raised about a group trying to pass pamphlets through the gates over the conveyor belts in the baggage claim area.

Those rules limit “expressive activity” to a small area outside the terminal and require a permit be obtained before any protest or leafleting occurs, according to court documents.

Access the Dec. 5th opinion here.

Posted by Marcia Oddi on Friday, December 09, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)

For publication opinions today (2):

In Scott Pattison v. State of Indiana, a 19-page opinion, Sr. Judge Barteau writes:

Appellant Scott Pattison appeals his conviction of murder, a felony. Ind. Code § 35-42-1-1 (2007). We affirm.

Pattison raises six issues, which we consolidate and restate as:
I. Whether the trial court abused its discretion by admitting surveillance equipment and a surveillance video into evidence.
II. Whether the trial court erred by allowing the jury to examine a weightlifting machine (“the machine”) during their deliberations.
III. Whether the trial court abused its discretion by refusing Pattison’s request to question jurors about their examination of the machine.
IV. Whether the evidence is sufficient to sustain Pattison’s conviction. * * *

Pattison, who owned a roofing business, told the officer that he had come home from work and found Lisa’s body in their exercise room. Pattison further stated that he found Lisa lying on a weightlifting bench with the weight bar pinned across her throat. He administered CPR, and when that did not help, he put Lisa in his truck and drove to the hospital as he called 911. * * *

Subsequently, the detectives sought and obtained a search warrant for the surveillance system and seized the system from Pattison’s house. Upon examining the system, the detectives found a recording of Pattison’s driveway from July 2, 2009. The recording showed that Pattison had returned home several hours prior to the time he told the police he had come home.

A grand jury indicted Pattison for murder, and he was tried by a jury. During the trial, the court admitted into evidence the components of the surveillance system and the system’s video from July 2, 2009. In addition, the weightlifting machine was placed in the courtroom and admitted into evidence. The machine consisted of a bar on which weights could be placed, with a system of guide bars along which the weight bar could be lifted up and down. The weight bar could be locked into place at several points along the guide bars. A person could use the machine while standing or while lying on a bench under the weight bar. The machine was too large to put in the jury room, so it remained in the courtroom throughout the trial. During jury deliberations, jurors came into the courtroom when no one but the jury was present and examined the machine.

The jury determined that Pattison was guilty of murder. After the verdict but before sentencing, Pattison filed a motion for mistrial, asserting that the jury engaged in misconduct by performing experiments on the machine during deliberations. The trial court denied his motion for mistrial and sentenced him. This appeal followed.

In Jeremy Phovemire v. State of Indiana, a 6-page opinion, Judge Mathias writes:
Jeremy Phovemire (“Phovemire”) was convicted in Allen Superior Court of Class D felony domestic battery and Class A misdemeanor invasion of privacy. Phovemire appeals and argues that the trial court erred in sentencing him by miscalculating the amount of jail time credit he was due. The State cross-appeals and argues that this appeal should be dismissed because Phovemire’s belated notice of appeal was untimely filed. Concluding that this court lacks subject matter jurisdiction due to Phovemire’s failure to timely file his belated notice of appeal, we dismiss.
NFP civil opinions today (0):

NFP criminal opinions today (1):

Paul B. Roberson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 09, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Windfalls and General Fund Revsions

Yesterday's Fort Wayne Journal Gazette had a long editorial headed "Windfall vs. painful cuts" that begins:

Is the $320 million uncovered by state budget officials a windfall that should be returned to taxpayers?

Not if you’re an Indiana foster parent who had to file suit when the state froze foster care reimbursement rates. Neither would you believe it if you’re an Indiana teacher whose job was eliminated when the state cut $325 million from K-12 schools, or if the services you received for a mental illness were lost in a round of Medicaid cuts.

What Gov. Mitch Daniels is characterizing as a Christmas bonus looks like a sad reminder of essential services cut in the name of unavoidable spending reductions. Returning some to taxpayers already has been proposed, but those deep and dangerous cuts shouldn’t be ignored. * * *

In the last fiscal year alone, the Daniels administration reported more than $1.1 million in general fund reversions – spending approved by the Indiana General Assembly but returned to the state’s coffers. The amount included 46 percent of the Department of Agriculture appropriation, 39.9 percent of the Department of Veterans Affairs and 52 percent of the Department of Labor’s $5.2 million appropriation. The Indiana State Fair Commission returned more than $1 million – 62.9 percent – of its $1.6 million appropriation.

“(Agency) budgets go through a very particular and painstaking approval process,” noted Bill Glick, president of the Children’s Coalition of Indiana. “Cuts in services and reversions don’t. There is no legislative oversight – it’s up to the executive branch.”

Glick said the cuts would be understandable if the needs weren’t so great.

“I don’t think there’s anyone out there that says the need isn’t there,” he said.

Sen. John Broden, D-South Bend, said his first concern as a member of the State Budget Committee is how the budget error was made and how it continued over five years.

“Certainly, the governor and his staff were very outspoken and critical of the revenue forecasting committee,” he said. “They went so far as to undermine the revenue forecasting process, (which) probably wouldn’t have looked as bad if those hundreds of millions of dollars had been factored in. * * *

One idea might be to restore some of the money cut from much-needed services for children. Broden offered a bill last session, for example, that would have provided about $8 million for adoptive children on that waiting list of 500-plus families. The bill failed, but would it have fared better with an additional $300 million available?

Here is a list of the General Fund Reversions FY 2010-11; details are here. There is more, see the entire Fiscal Year 2010-2011 Close-Out Statement page.

Here is a copy of the letter from the Democratic Caucus, dated Dec. 8, 2011, requesting discussion of an independent audit into the unreported $320 million in revenue.

Posted by Marcia Oddi on Friday, December 09, 2011
Posted to Indiana Government

Thursday, December 08, 2011

Vacancy on Supreme Court 2012 - Last year's applicants and ILB coverage plans for 2012

Here are the names on the July 1, 2010 list of applicants for the Supreme Court position created last year by the resignation of Justice Boehm. (The links are to material that was available on that date.)

Here is the July 7, 2010 list of semi-finalists, along with Prof. Schumm's recap posted that evening.

Here are the three finalists, announced July 30, 2010.

Here is the Sept. 17, 2010 Governor's announcement of his selection.

Here is a detailed chart providing an overview of the entire process in 2011.

The ILB intends to continue the tradition it initiated last year of comprehensive coverage of the Supreme Court selection process. IU-Indy Prof. Joel Schumm has indicated that although he cannot commit right now to make the same investment of time he did last year, he will continue to collaborate in this effort to make the selection process meaningful to the legal community and the public.

Two entries to watch for before the week concludes:

Posted by Marcia Oddi on Thursday, December 08, 2011
Posted to Vacancy on Supreme Court 2012

Courts - "Murder conviction overturned because of tweeting, sleeping jurors"

See How Appealing entry.

Posted by Marcia Oddi on Thursday, December 08, 2011
Posted to Courts in general

Vacancy on Supreme Court 2012 - "Speculation swirls around next Indiana chief justice"

The Evansville Courier & Press has just posted this long AP story by Charles Wilson. The story begins:

INDIANAPOLIS — Speculation suggests that Indiana's newest Supreme Court's justice is a likely possibility to serve as the next chief justice, one day after longtime Chief Justice Randall T. Shepard, an Evansville native, announced his retirement.

But before he could serve the five-year term, 54-year-old Justice Steven David must survive a 2012 retention vote that could be clouded by the controversy over a ruling he wrote that denied residents' right to resist illegal entry by police.

Some legal experts turned their attention to David, a former military lawyer who once served as chief defense counsel for Guantanamo Bay detainees, on Thursday, the day after the 64-year-old Shepard announced he would leave the court in March.

"Justice David strikes me as the most likely current member of the court to become chief justice," said Joel Schumm, a professor at the Indiana University School of Law in Indianapolis. "He's been very engaged with the community, bench, and bar. Not every justice would want to take on the added responsibility, much of it ceremonial."

"I would think Steve would be a logical choice," said former Justice Theodore Boehm, whom David was appointed to replace last year, though he said he had no inside information.

Attorney and blogger Marcia J. Oddi also wrote on her popular Indiana Law Blog that David was the most likely next chief justice, in part because four of the seven members of the commission that will select the chief justice were appointed by Republican governors. Besides Shepard, who is leaving, only David and Justice Brent Dickson were appointed by Republicans. Dickson will turn 75 and be forced to retire before he could complete a five-year term as chief justice, she wrote.

The Columbus Republic has also posted the story, with photos.

Posted by Marcia Oddi on Thursday, December 08, 2011
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Chief Justice Shepard: essential dates

1. Randall T. Shepard of Evansville was appointed to the Indiana Supreme Court by Governor Robert D. Orr in 1985 at the age of 38. He became Chief Justice of Indiana in March 1987.

2. He was initially selected as Chief Justice on Feb 13, 1987 and sworn-in on March 4, 1987. The Chief Justice's term as Chief Justice ends on March 4, 2012.

3. On Dec. 7, 2011 Justice Shepard announced his resignation from the Supreme Court, effective March 4, 2012, the same date his current term as Chief Justice expires.

Posted by Marcia Oddi on Thursday, December 08, 2011
Posted to Vacancy on Supreme Court 2012

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

For publication opinions today (1):

In Term. of Parent-Child Rel. of C.M., G.M., and R.M.; A.M. (Mother) and C.M. (Father) v. Indiana Dept. of Child Services, Dearborn County Office, a 10-page opinion, Judge Bailey writes:

A.M. (“Mother”) appeals an order terminating her parental rights to C.M., G.M., and R.M. (“the Children”), upon the petition of the Dearborn County Department of Child Services (“the DCS”). We reverse the termination of Mother’s parental rights.

Mother presents a single issue for appeal: Whether DCS established, by clear and convincing evidence, the requisite statutory elements to support the termination of parental rights. * * *

Here, the court’s focus on historical conduct, absent factual findings as to Mother’s current circumstances or evidence of changed conditions, is akin to terminating parental rights to punish the parent. And, without more, the findings are insufficient to establish each element necessary to support the conclusion that termination is warranted in this case.

Moreover, the court’s conclusions of law included language suggesting that Mother had a burden of proof she does not have. Indiana Code Section 31-35-2-4 requires the DCS to establish, by clear and convincing evidence, each of the requisite elements to support the termination of parental rights. A prima facie showing necessarily includes some evidence of current conditions. Here, the DCS did not present a prima facie case of a reasonable probability either that the conditions leading to removal will not be remedied or that Mother poses a threat to the Children; thus, Mother was not required to produce evidence in order to withstand the termination petition.

Although a trial court is not statutorily required to make findings in termination cases, “once the trial court walks down the path of making findings, it is bound under Indiana Trial Rule 52(A) to make findings that support the judgment.” Parks, 862 N.E.2d 1275, 1281 (Ind. Ct. App. 2007). The findings do not support the trial court’s judgment.

Accordingly, we reverse the judgment of the trial court terminating Mother’s parental rights to C.M., G.M., and R.M.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Robert A. Shannon v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 08, 2011
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Still more on "Twenty-seven civilian employees to lose IMPD jobs"

Updating yesterday's entry, a brief story in today's Indianapolis Star reports:

City-County Council leaders said Wednesday that they will seek money to restore 10 cut public safety transcriptionist positions, after hearing warnings of a backup in criminal court cases.

Those positions are among 27 civilian jobs being cut by the Indianapolis Metropolitan Police Department at year's end in a cost-cutting move that will save $1.1 million. Most of those workers transcribe police reports, but about 10 of the employees also transcribe witness and suspect interviews, producing documents that become part of court cases and must be given to defense lawyers under tight deadlines.

Posted by Marcia Oddi on Thursday, December 08, 2011
Posted to Indiana Government

Vacancy on Supreme Court 2012 - "Indiana's top judge says he'll retire in March"

Here is the lengthy Indianapolis Star coverage this morning of Chief Justice Shepard's retirement announcement and a look at his career. reported by Mary Beth Schneider and Jon Murray, here are a few quotes from this must-read-in-full story:

Justice Brent Dickson, a Republican who has served on the court since 1986, and Justice Frank Sullivan, a Democrat who has served with Shepard since 1993, both praised him as a colleague who brought a willingness to listen and pursue new ideas, fostering collegiality and thoughtful debate.

"He's definitely not a micromanagement freak," Dickson said. "He is one who inspires and empowers. That's his management style, and he gets great things out of people because of it. He's been a wonderful public face for the court."

Unlike other states, where partisan dramas often define the courts, Indiana's court has seemed insulated from politics.

Shepard set that nonpartisan tone from the beginning, Sullivan said, when the court decided one of the most momentous cases it had ever faced: State Election Board v. Evan Bayh.

Republicans were challenging whether Bayh met the residency requirement to be on the 1988 ballot for governor. The case went to the Supreme Court, and though there were four Republicans serving and one Democrat, Shepard wrote the unanimous decision that kept Bayh on the ballot, and paved the way for his two terms as governor.

It affirmed to the public, Sullivan said, that the court followed laws, not politics.

"That's been a lot of the spirit of the place, I'm grateful to say," Shepard said.

Joel Schumm, a professor at Indiana University's Robert H. McKinney School of Law in Indianapolis, called Shepard a "trailblazer" who has transformed Indiana's court into one that is "nationally respected for their thoughtful and well-reasoned opinions."

Shepard and Sullivan pointed to another high-profile case as a defining moment for the state and for Shepard: The case of Paula Cooper. Cooper was 15 when she and three other teens stabbed a 78-year-old Bible teacher 33 times, killing her. Cooper was sentenced to death.

It drew worldwide attention. Shepard recalled emissaries from the Vatican in the packed courtroom. And he recalled Dan Rather, standing under the Eiffel Tower in Paris as he told the world the Indiana Supreme Court had unanimously decided it was cruel and unusual punishment to put the teenager to death. Cooper remains behind bars but could be released as early as 2013.

It was, Sullivan said, only the first of many ways Shepard led efforts to make sure the death penalty is administered fairly in this state. The result, Sullivan said, has been that Indiana hasn't faced the same scrutiny and questions about the fairness of the death penalty process that other states have.

Shepard seemed proudest of paving the way for the more mundane cases to get their day in court. When he joined the court, every case in which a defendant received a sentence of at least 10 years automatically went to the Supreme Court. It meant that 93 percent of the cases the court ruled on were criminal cases, he said.

"Everybody else shared the other 7 percent," Shepard said.

His office, he said, was filled with stacks of cases involving child custody, wrongful firing and insurance questions, each "waiting their turn, and the line was about two years long."

Under Shepard, two amendments were made to the state constitution to require that only death penalty cases bypass lower appeals courts. The result, Shepard said, is a court caseload that now is split "even-steven" between criminal and civil issues.

Posted by Marcia Oddi on Thursday, December 08, 2011
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - More info

From Kathryn Dolan, Court information officer, a note this morning, :

I have been asked about the selection process for the next Justice and Chief Justice and have provided this answer to the press:

The Judicial Nominating Commission will conduct interviews with candidates for the next Supreme Court Justice in February 2012. At that time, Chief Justice Shepard will lead the Commission. Chief Justice Shepard, with the other six members of the Judicial Nominating Commission, will provide three names to the Governor. The Governor will select the next Supreme Court Justice.

When Chief Justice Shepard retires in March 2012, the most senior justice, Justice Brent Dickson will become Acting Chief Justice. In that position he will be the chair of the Judicial Nominating Commission. The Commission will then select the state's next Chief Justice from among the Court, including the newest appointed member [ILB emphasis].

This is clearer, but there is still no precise timetable. The Governor has 60 days after receiving the nominees from the Commission to make his selection of the next justice. So this could be late April.

In the meantime, Justice Dickson will be Acting Chief Justice from the time CJ Shepard's 5-year term officially ends sometime in March (I've asked for the exact date, I don't know that it corresponds with his retirement date from the Court) to the time the Judicial Nominating Commission selects a new Chief Justice from the eligible applicants. Whether or not this pool includes the justice to be named by Gov. Daniels in the spring will depend on how long the Commission, then headed by acting-CJ Dickson, decides to extend the process (although the communication above indicates the pool of eligibles will include the newest justice).

Jon Murray and Mary Beth Schneider have a story today in the Indianapolis Star headed "Shepard will have role in picking new justice: Commission expects to have its list of finalists to the governor in February." Some quotes:

Chief Justice Randall Shepard's retirement opens up the second vacancy in as many years on the Indiana Supreme Court.

But this opening is anything but routine. Gov. Mitch Daniels will appoint a new justice to take Shepard's place, based on three finalists submitted by a nominating commission after an extensive interview process.

The same commission then will choose the first new chief justice in 25 years from among the court's justices -- without a direct say from Daniels, who appoints just three of the seven commission members.

Those two decisions, set to play out in coming months, could have long-lasting effects on Indiana law and the justice system.

Shepard, set to retire in March, will have a voice in selecting his successor on the court since he's chairman of the Judicial Nominating Commission.

But he expects the selection of the next chief justice to occur after he steps down.

The commission will meet next week to prepare for the change -- the first time since its creation in the 1970s that members will face replacing both a justice and a chief justice.

After Shepard's latest five-year term as chief justice ends March 4, Justice Brent E. Dickson, the next longest-serving justice, will become acting chief justice. He will serve on the nominating commission as it interviews all of the justices and makes its choice for the new judicial leader.

Shepard said he didn't know whether that would happen before Daniels' justice pick joins the court.

"They are legally authorized to do it either way," Shepard said.

Still unclear: which of Shepard's colleagues wants to take his place.

From a story today in the Fort Wayne Journal Gazette, reported by Niki Kelly:
Indiana voters retained Shepard three times on statewide ballots, including when he received 61.7 percent of the vote after a former colleague leveled charges of drug and alcohol abuse against Shepard in 1988.

The Indiana Judicial Nominating Commission will search for a successor. The commission, led by Shepard, will interview candidates in February and send the names of three candidates to Daniels by the end of that month.

The governor then has 60 days to select the state’s next justice.

Daniels has already made one appointment to the high court. He tapped Justice Steven David in September 2010.

During that process, 34 attorneys from around the state applied – 19 women and 15 men. One woman made the top three.

The two finalists not chosen then were Indianapolis appellate lawyer and former Supreme Court administrator Karl Mulvaney and Marion Superior Court Judge Robyn Moberly. There was pressure then to appoint a woman because Indiana is one of two states that does not have a woman on its top court.

“I think the court is a stronger institution if it is well representative and well balanced. This is true in terms of race, gender and prior experience,” Shepard said. “In the end, it depends on who steps forward. It’s the name of the game.”

Shepard will participate in picking the three finalists, but Justice Brent Dickson will take his place on the commission when a new chief justice is chosen by that group in March.

Posted by Marcia Oddi on Thursday, December 08, 2011
Posted to Vacancy on Supreme Ct

Wednesday, December 07, 2011

Vacancy on Supreme Court 2012 - Justice David likely next Chief Justice

Very likely. Here are the reasons.

1. The next Chief Justice will be selected from the four current justices: Sullivan, Rucker, Dickson and David.

2. The selection body is the Judicial Nominating Commission.

3. Three lay members of the Commission are appointed by the Governor, for three-year staggered terms. The three attorney members are elected by the bar, and also serve three-year staggered terms. Current Chief Justice Shepard is the chair.

4. Politics has been said not to play a large part in the current Court's decisionmaking, but it does in the selection of justices. Governor Daniels has appointed the three current lay members. (One of them, Mike Gavin, is up for replacement by the Governor 12/31/11/) I don't know the politics of the three attorney members. And the Chief Justice was appointed by a republican, Governor Orr.

5. Mary Beth Schneider has quoted the Chief Justice as saying that he will help select the justice to replace him; but not the next Chief Justice. That may mean he will not vote on the selection by the Commission of the next Chief Justice, but will abstain, leaving the selection to the other six members.

6. Of course, not all four of the current justices may even apply for the chief justice position. For instance, Justice Dickson, the only one of the four other than Justice David who has been appointed by a republican governor (also Orr) would turn 75, the date a justice must retire, shortly before the end of a five-year term as Chief Justice.

7. If, as appears inevitable, the new Chief Justice is selected before the appointment by the Governor of a new fifth justice, there is no chance that the new appointee would be eligible to be Chief Justice at this time. But if, for instance, Justice Dickson were to be selected Chief Justice, and then stepped down from the position but not the Court in a few years, the possibility would open up.

8. Another point to keep in mind, Justice David is up for retention in November of 2012. Ordinarily the Court's retention elections have been uneventful, but that may not be the case in 2012.

[More on #5] Article 7, Sec. 9 of the Indiana Constitution provides in part:

The judicial nominating commission shall consist of seven members, a majority of whom shall form a quorum, one of whom shall be the Chief Justice of the State or a Justice of the Supreme Court whom he may designate, who shall act as chairman.
I read this to mean that CJ Shepard could designate another member of the court to act as chairman in the vote for Chief Justice, with voting authority, eliminating the danger of a 3-3 tie. But who would this be? Surely not a candidate for the position ...

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - More on "Twenty-seven civilian employees to lose IMPD jobs"

That was the heading to this Nov. 18th ILB entry, referencing an IndyStar story.

This afternoon Fox 59 has this headline: "Prosecutor claims, "We've been blindsided," in firing of transcriptionists: Straub's office advised the employees two weeks ago that their jobs were being eliminated due to a new automatic system for recording police reports." Some quotes:

Marion County Prosecutor Terry Curry told Fox 59 News, “We’ve been blindsided,” by Public Safety Director Frank Straub’s plans to eliminate the jobs of more than two dozen police transcriptionists.

Curry’s staff will ask the Public Safety Committee of the City-County Council to find funding to keep ten transcriptionists on the job in 2012.

Straub’s office advised the employees two weeks ago that their jobs were being eliminated due to a new automatic system for recording police reports.

Curry said many of the furloughed transcriptionists do more than type out daily run reports. They transcribe witness and victim statements for prosecutors and courts.

“It is very common in a homicide case to have as many as five or ten or more written statements,” said Curry. “It is an absolute crisis if we don’t have those prepared.”

Curry said under trial rules his office is obligated to provide typed transcripts to defense attorneys.

Straub’s told City-County councilors during budget hearings in September that the courts or the prosecutor, not the department of public safety, should pay for those services.

“There’s no money in our budget to take care of that sort of responsibility,” said Curry. “We have no space to house those folks. We have no equipment. This has been the responsibility of Public Safety for several years.”

Curry estimated it would cost $485,000 to keep the transcriptionists on the job in the coming year.

Read this in conjunction with the earlier entry.

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to Indiana Government

Ind. Courts - More on: Fort Wayne problems collecting parking fines: talks of city court

Updating this ILB entry from Dec. 5th, the Fort Wayne Journal Gazette ran this editorial today. Some quotes:

City leaders are past due in taking action to compel more scofflaws to pay their parking fines, and they should start by meeting with court officials.

One contributing factor, city officials say, is the reluctance of county-run courts to handle city parking tickets. But court officials dispute that claim.

“They haven’t been filing them,” Judge Fran Gull of Allen Superior Court said of the past-due parking ticket cases.

Last year, city officials floated the idea of creating a city court but then dropped the plan when court officials promised greater cooperation with the city in handling parking tickets. But officials haven’t met to discuss potential solutions.

Carol Helton, the city attorney, said the city has limited time each week to prosecute its cases in Allen Superior Court. The high misdemeanor case volume, including speeding tickets and smoking violations, could make protesting a parking ticket challenging.

Gull said cases involving city ordinances such as parking tickets are heard one afternoon a week in Traffic and Misdemeanor Court. “If that’s not adequate for their needs, I would welcome an opportunity to meet with them,” Gull said.

Helton is reviewing the possibility of using administrative hearings – similar to the way Neighborhood Code handles housing code violations – to expedite adjudication of tickets.

Another potential solution is using a collection agency. But a collection agency would retain a portion of the fine, reducing the revenue the city receives.

Later in the editorial:
Asking taxpayers to pay for parking enforcement because the department is not covering its costs is unsustainable. Officials should consider increasing the penalty for parking violations. Most parking tickets are $5, with the fine increasing to $10 if it’s not paid within a month. The small fine means that in some instances it is cheaper to park illegally and receive a ticket than it is to pay for parking.
$5.00!!! They were $20.00 last time I checking in Indy and may be more today.

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to Indiana Courts

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

For publication opinions today (4):

In Ivelisse Martinez v. Jung I. Park, M.D., and St. Margaret Mercy Healthcare Centers, Inc., a 22-page opinion, Chief Judge Robb writes:

Dr. Jung Park performed bilateral breast reduction surgery on Ivelisse Martinez at St. Margaret Mercy Healthcare Center (the “Healthcare Center”) in 2000. Martinez thereafter filed a medical malpractice action against both Dr. Park and the Healthcare Center, asserting claims for negligence and fraud. Dr. Park and the Healthcare Center each filed motions for summary judgment. The trial court ultimately granted partial summary judgment to Dr. Park and the Healthcare Center on Martinez’s negligence claims. Martinez appeals the trial court’s decision, raising two issues for our review: 1) whether the trial court erred in granting summary judgment to Dr. Park on her claim for medical negligence; and 2) whether the trial court erred in granting summary judgment to the Healthcare Center on her claim for negligent credentialing. Concluding the trial court properly granted summary judgment to both Dr. Park and the Healthcare Center, we affirm. * * *

Martinez failed to come forth with any evidence to rebut Dr. Park’s expert opinion that his medical treatment of Martinez met the applicable standard of care. The trial court properly granted summary judgment to Dr. Park on Martinez’s medical negligence claim. * * *

We have held above that the trial court properly granted summary judgment to Dr. Park because Martinez failed to rebut the expert testimony that he did not breach the applicable standard of care in pre-operatively, surgically, or post-operatively treating Martinez. Without a showing of an underlying breach of the standard of care by Dr. Park proximately causing Martinez’s injuries, the Healthcare Center cannot be liable for the negligent credentialing of him. The trial court properly granted summary judgment to the Healthcare Center on Martinez’s negligent credentialing claim.

In In the Matter of the Estate of Melissa K. Patrick: Yvonne Griffith v. Jason Patrick , a 10-page opinion, Judge Friedlander writes:
Yvonne Griffith, as the personal representative of the Estate of Melissa K. Patrick (the Estate), appeals the denial of the Estate’s motion to dismiss a petition for survivor’s allowance filed by Melissa’s surviving spouse, Jason Patrick (Patrick). The Estate presents the following restated issue for review: Did the trial court commit clear error in determining that Ind. Code Ann. § 29-1-2-14 (West, Westlaw through end of 2011 1st Regular Sess.) did not divest Patrick of a survivor’s share of the Estate of his late wife, Melissa Patrick (Melissa). We affirm.
NFP civil opinions today (2):

Timothy E. Strowmatt v. Kim Rodriguez (NFP)

John F. Otto, Jr. v. Scott Douglas Woodhams (NFP)

NFP criminal opinions today (7):

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

Joseph D. Hillenburg v. State of Indiana (NFP)

Paul Hinton v. State of Indiana (NFP)

Nathaniel Jeffers v. State of Indiana (NFP)

Sybron Pinkston v. State of Indiana (NFP)

Jesus D. Zuniga v. State of Indiana (NFP)

Keyone Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to Ind. App.Ct. Decisions

Law - "Ind. AG joins 53 other attorneys general in fight against robo-calls to cell phones" [Updated]

Story here, from Fox 59.

"53 attorneys general"?

[Updated at 4:55 pm]
Thanks to Deputy AG Larry Carcare for this quick answer:

When one considers that the territory of the United States includes District of Columbia, the Commonwealth of Puerto Rico, and the Territories of American Samoa, Guam, Northern Mariana Islands, and the Virgin Island, each of which has an attorney general who is a member of the National Association of Attorneys General, there are more than 50 attorneys general.

The attorneys general that signed the letter are from: Alabama, Alaska, American Samoa, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virgin Islands, Washington, West Virginia, Wisconsin and Wyoming.

Lawrence J. Carcare II
Deputy Attorney General, Medicaid Fraud Control Unit
Office of Indiana Attorney General Greg Zoeller

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to General Law Related

Ind. Courts - More on: Who will be the next Chief Justice of Indiana? [Updated]

Updating this ILB entry from earlier this morning, I've already read/viewed erroneous reports that "the Governor appoints the Chief Justice" and that the "justices elect the chief justice." Again, the correct answer is:

How is the Chief Justice selected? Article 7, section 3 provides in part: “The Chief Justice of the State shall be selected by the judicial nominating commission from the members of the Supreme Court and he shall retain that office for a period of five years, subject to reappointment in the same manner, except that a member of the Court may resign the office of Chief Justice without resigning from the Court.”
[Update at 2:28] Just saw this mistake from WISH TV:
Shepard was on the court just a year and a half when he was first elected Chief Justice. His departure next year will permit Mitch Daniels to appoint his replacement on the bench. The members of the court will choose the next Chief Justice.

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to Indiana Courts

Ind. Courts - "Statement from AG Zoeller about Indiana Supreme Court Chief Justice Randall Shepard’s retirement announcement"

Just released from Attorney General Zoeller:

"I was privileged to have been present at the investiture of Chief Justice Shepard in 1985 and he has fulfilled his pledge to transform the Indiana Supreme Court into one that is nationally respected and whose legal insight and analysis serves to lead the development of the law. His reform efforts in the Court’s jurisdiction and in capital case handling and review have made Indiana a national model; and through technology he championed, the public’s access to and understanding of the Court and its workings have greatly expanded. His tenure will be highly rated in the history of our state.”

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to Indiana Courts

Ind. Gov't. - "State finds $320 million it didn't know it had"

Mary Beth Schneider has a good story today in the Indianapolis Star explaining in great detail how the State could lose and then find $320 million.

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to Indiana Government

Stage collapse - "Payouts to victims of State Fair collapse range from $109 to $503,042 Some attorneys cry foul as state payouts to victims of State Fair collapse range from $109 to $503,042"

From a story today in the Indianapolis Star reported by Alex Campbell:

Here's how the state fund money will be split up:

Families of each of the seven people who were killed will receive at least $300,000.

Surviving victims with physical injuries will get compensation for 65 percent of the medical expenses they accrued through Nov. 15.

A 17-year-old who is permanently paralyzed will receive an additional $182,476 for extra medical expenses.

All told, 65 victims -- or families of Sugarland concertgoers who died -- will receive state money, with payouts ranging from $109 to $503,042.

What gets left out? Future medical expenses and any expenses for psychological treatment.

Feinberg said the victims "have legitimate concerns about the amounts" they will receive, but he praised Zoeller for achieving, "with fingers crossed, (a) general consensus as to how the money should be allocated."

However, that "consensus" doesn't satisfy Kenneth J. Allen, the Valparaiso-based attorney who has already filed a lawsuit over the $5 million liability cap and the way the money is being handed out.

Allen, who represents six victims of the stage-rigging collapse, on Tuesday called the procedure "rash and not well-thought-out . . . just like the planning for the fair."

The state moved too quickly, Allen said, handing out the money before victims could fully account for how much their injuries might cost them.

Terry Monday, an attorney for victim Kyle Covert, wasn't pleased, either.

"It's probably not very fair to any single individual," Monday said. Covert will receive $31,091.

Another victim, Lisa Hite, is set to have surgery on her foot on Dec. 19, a costly medical expense that won't be covered by the tort fund. "I've had better days," Hite said in reaction to Tuesday's news.

Factoring in missed work, her injuries have already cost Hite more than $43,000, said Mario Massillamany, an attorney with Starr Austen Miller who is helping to represent Hite. Her payout from the state: $7,003.52.

But Robert Katz, a professor of law at the Indiana University School of Law-Indianapolis, called the fund-settlement process "reasonable."

Zoeller and Feinberg could have sliced the pie up differently, perhaps paying out 32.5 percent of medical expenses now, and saving the other 32.5 percent for a later date, when health costs are more fully accounted for.

But it's better than how Feinberg doled out the nearly $1 million in privately donated funds, Katz said. Those awards were determined by how many nights victims spent in the hospital -- not by how much their medical bills cost.

Could they have waited another month or two to get a fuller picture of how much each victim's injury cost them financially? "Yeah," Katz said, "but there are trade-offs."

If the state waited, Katz said, the people who needed money now would have suffered further.

There are still two avenues through which the cap could be raised: through the courts or the state legislature.

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to Stage Collapse

Ind. Decisions - "Walkout fees case allowed to resume"

That is the headline to Niki Kelly's story this morning in the Fort Wayne Journal Gazette. Mary Beth Schneider's story in the Indianapolis Star is headed "Judge: Courts can't interfere with legislature's decision to fine for walkout."

From the FWJG:

A Marion County judge ruled Tuesday that a House Democrat’s lawsuit contesting the docking of his pay to cover fines from a legislative walkout can move forward.

Attorneys for GOP House Speaker Brian Bosma and State Auditor Tim Berry had argued that the court can’t intervene in legislative business and the lawsuit should be dismissed.

Judge David Dreyer agreed that the House has exclusive authority over compelling attendance and fining members. But he said it’s within a court’s jurisdiction to determine whether Berry could deduct the fines from members’ wages and pensions.

Fort Wayne Attorney Mark GiaQuinta argued on behalf of Rep. William Crawford, D-Indianapolis, that state law specifically forbids employers from unilaterally taking wages. Instead, employers must go to court to get a garnishment order.

“When the House fine affects statutorily protected employee compensation, the House is not acting within its ‘exclusive constitutional authority’ by directing the auditor to reduce payments – such reduction can only be affected through the courts, and the laws involving employee compensation,” Dreyer said in his ruling.

“Therefore, this court is not constitutionally separated from hearing claims about such wage reductions.”

The fines were a result of the five-week House Democratic walkout earlier this year that halted House business because of the lack of a quorum to conduct business.

From the IndyStar:
A Marion Superior Court judge has ruled the courts cannot interfere with the legislature’s decision to fine members who walk-out to shut down business. But the courts can, he said, weigh in on whether the fines were properly doled out.

The fines, of about $3,000 per lawmaker, were levied on the 39 Democrats who shut down action in the Indiana House for five weeks in the 2011 session to try to stop the passage of bills that affected labor unions and public education. The state has collected more than $100,000 as of September from the Democrats.

But State Rep. Bill Crawford, D-Indianapolis, filed suit in June challenging the fines.

At that time, Crawford said he was not contesting the fines themselves, but how they were seized, with lawmakers’ checks reduced.

“My concern was due process,” Crawford said then. “If we’re employees, they cannot under Indiana law take our money without us acquiescing or even giving us a chance to address the issue.”

Marion County Judge David Dreyer agreed with the state’s contention that the court has no power to intervene in the internal affairs of a separate branch of government. He ruled Tuesday that the courts “cannot interfere with the House’s ‘exclusive constitutional authority’ to compel attendance or determine a fine, even if it violates (another state statute) when doing so.”

But, he added, that does not prevent the courts from exercising its “ ‘exclusive constitutional authority’ to interpret and enforce the Indiana Constitution.”

When the House acts as an employer, Dreyer said in his opinion, “it does not use ‘exclusive’ powers. Therefore this court is not constitutionally separated from hearing claims about such wage reductions.”

Dreyer said later that this order is the first step in the case. He expects it to be appealed. If a higher court does not decide that he should have dismissed all of Crawford’s lawsuit, it could go to trial in 2012 — potentially being argued and decided in the middle of next year’s legislative session. Lawmakers come in on Jan. 4, and must complete their work by mid-March.

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Who will be the next Chief Justice of Indiana?

In a Dec. 12, 2006 ILB entry headed "Chief Justice Randall T. Shepard has filed for re-appointment as Chief Justice of Indiana," I called attention to this public notice on the Court's website:

NOTICE OF PUBLIC MEETING AND PUBLIC NOTICE OF CANDIDATE FOR APPOINTMENT TO CHIEF JUSTICE OF INDIANA

The Indiana Judicial Nominating Commission issues this Public Notice pursuant to IC 5-14-1.5-5, IC 33-27-3-2, and IC 33-27-3-6. Chief Justice Randall T. Shepard has filed for re-appointment as Chief Justice of Indiana and has consented to public disclosure of pertinent candidate information within the parameters of IC 33-27-3-2(b), (d), and (g). On Wednesday, December 13, 2006, the Nominating Commission will convene at approximately 10:30 a.m. in Room 319, State House, Indianapolis, Indiana, in an open meeting, for the purpose of interviewing Chief Justice Randall T. Shepard.

The candidate's application and any attributable communications concerning the candidate will be available for public inspection and copying pursuant to IC 33-27-3-2(d) and IC 33-27-3-6(e).

An agenda will be posted at Room 319, State House, Indianapolis, Indiana pursuant to IC 5-14-1.5-4. [emphasis added]

The entry also quoted from p. 2 of my paper , "Voting to Retain or Reject Indiana Judges and Justices" :
How is the Chief Justice selected? Article 7, section 3 provides in part: “The Chief Justice of the State shall be selected by the judicial nominating commission from the members of the Supreme Court and he shall retain that office for a period of five years, subject to reappointment in the same manner, except that a member of the Court may resign the office of Chief Justice without resigning from the Court.”

Justice Shepard initially was named Chief Justice in March of 1987, which means that he has been reappointed in 1992, 1997, and 2002. His current term ends in 2007.

Really, that should have said, his current term ends "in March 2007."

And this current term ends March 2012. In December of 2006, Chief Justice reapplied for consideration for another five-year term three months in advance.

Questions: But when are applications to be submitted for the position of new Chief Justice and will the justice selected to fill the CJ's seat be eligible?

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to Indiana Courts

Ind. Courts - "Statement from Governor Daniels about Indiana Supreme Court Chief Justice Randall Shepard’s retirement announcement"

Just released from Gov. Daniels:

“Most Hoosiers recognize the historic place Randy Shepard will always hold in Indiana judicial history. What fewer people may know is there is no more nationally respected Supreme Court judge in any state in America, and this has been so for a very long time.

“I look forward to identifying and appointing a person of highest character and quality, but I have no illusions we are likely to find another Randy Shepard now or anytime soon.”

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to Indiana Courts

Ind. Courts - Chief Justice Shepard Will Retire from Supreme Court

Here is the press release, just issued. Some quotes:

Indiana Chief Justice Randall T. Shepard will leave after a quarter century career as the leader of Indiana’s judiciary. Chief Justice Shepard is Indiana’s 99th Supreme Court Justice and the longest serving state court chief justice in the nation. President of the National Center for State Courts, Mary McQueen said, “To say the justice system is stronger today because of Chief Justice Shepard’s three decades of dedication would be an understatement. He defined ‘justice’ not only for the citizens of Indiana and the United States—Chief Justice Shepard defined ‘justice’ for our generation.”

Justice Shepard was appointed to the Indiana Supreme Court by Governor Robert D. Orr in 1985 and selected as Chief Justice in 1987. During his career, he authored nearly 900 civil and criminal opinions and wrote 68 law review articles. His writings have been cited hundreds of times in law journals and textbooks and by other courts, including the U.S. Supreme Court. Beyond his writings, Shepard has devoted his career to developing practical solutions to improve the way courts do business. Indiana voters retained Chief Justice Shepard three times on statewide ballots. In 2008, he received the highest number of “yes” votes ever cast for a justice. * * *

Chief Justice Shepard will step down from the bench in March 2012. The Indiana Judicial Nominating Commission will search for a successor to fill the vacancy. The Commission, which is chaired by Chief Justice Shepard, will interview candidates in February 2012 and send the names of three candidates to Governor Mitch Daniels. The Governor will select Indiana's next justice. The seven-member Commission will appoint a new Chief Justice.

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to Indiana Courts

Ind. Courts - Announcement from the Supreme Court

Expected any time now ...

Perhaps a retirement?

Yes, Chief Justice Shepard Will Retire from Supreme Court

Posted by Marcia Oddi on Wednesday, December 07, 2011
Posted to Indiana Courts

Tuesday, December 06, 2011

Ind. Decisions - Non-Indiana 7th Circuit opinion today on Truth-in- Lending Act (TILA)

In Marr v. Bank of America (ED Wis), an 11-page opinion, Judge Wood writes:

In the world of the Truth-in- Lending Act (TILA), 15 U.S.C. §§ 1601 et seq., it oftenseems that no detail is too insignificant to matter. We have called TILA “hypertechnical” in the past, see, e.g., Brown v. Payday Check Advance, Inc., 202 F.3d 987, 989 (7th Cir. 2000), and this case provides yet another opportunity to see this level of precision in operation. The case before us involves a borrower who alleges that he did not receive all of the documents to which he was entitled when he refinanced his mortgage. If he is correct, then he had not a measly three days, but a more generous three years in which to rescind the transaction. The district court ruled for the bank, but we conclude that the borrower presented enough evidence to defeat summary judgment, and so we reverse and remand for further proceedings. * * *

Marr left the closing agent’s office on February 23 with the loan documents in the folder that the title company had given him. He put that folder into his filing cabinet. He added additional loan documents to the folder later on, but he never removed anything from the folder. When he took the folder to his attorney’s office, he and the attorney discovered that there was only one copy of the Notice. If believed, this evidence is enough to rebut the presumption created by Marr’s acknowledgment that he received two copies of the Notice. We note, finally, that although the difference between one and two copies may seem to be an empty formality, Regulation Z demands two copies. This is not a situation in which there is any room for some kind of substantial compliance rule. Two copies means two copies, not one. See 12 C.F.R. § 226.23(b)(1). Marr is entitled to the opportunity to convince the trier of fact that he did not receive all that the Regulation promised him, and thus that he may proceed with his suit to rescind the loan. We REVERSE and REMAND for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Tuesday, December 06, 2011
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 7 today (and 13 NFP)

For publication opinions today (7):

In Toshiano Ishii, Matthew Stone, Greg Hardin, Lisa Hardin, William Neely, and Michael Grider, et al. v. The Hon. William E. Young, Judge, an 8-page opinion, Judge Brown writes:

Toshiano Ishii, Matthew Stone, Greg Hardin, Lisa Hardin, William Neely, and Michael Grider (on their own behalf and on behalf of Defendants and others appearing before the Marion County Traffic Court) (collectively, “Appellants”) appeal the trial court’s order granting the motion to dismiss of the Honorable William E. Young, Judge. Appellants raise one issue, which we revise and restate as whether the trial court properly granted Judge Young’s motion to dismiss. We affirm. * * *

On December 27, 2010, Judge Young filed a motion to dismiss arguing in part that the trial court lacked jurisdiction to review the actions of another court or to issue a writ of mandate or prohibition against another superior court and that the plaintiffs lack standing to challenge the procedures of the Marion County Traffic and Parking Court. * * *

In their Complaint, Appellants clearly requested an “Order of Prohibition” and an “Order of Mandamus.” However, the Indiana Supreme Court has exclusive, original jurisdiction over actions for writs of mandamus and prohibition against inferior courts, and the reason for this rule is that the Indiana Supreme Court alone has authority over the supervision of State courts. * * * Based upon the record, we conclude that the trial court properly dismissed the Complaint and granted Judge Young’s motion to dismiss.

For background on this case, see this Dec. 8, 2009 ILB entry headed "Lawsuit challenges Indianapolis traffic court fines." For a comment on today's opinion an attorney in the firm that brought the suit, see this post from Ogden on Politics.

In Bonita G. Hilliard, in her capacity as Trustee of the H. David and Bonita G. Hilliard Living Trust v. Timothy E. Jacobs, an 11-page opinion, Judge Vaidik writes:

Bonita Hilliard appeals the trial court’s decision to grant summary judgment in favor of Timothy Jacobs in this attempted second lawsuit over the disposition of life insurance policy proceeds. We find that res judicata applies since the issues have already been decided adversely to Hilliard. We also find Hilliard’s due process and fundamental fairness concerns to be without merit. Finding no error in the trial court’s ruling, we affirm the granting of summary judgment in favor of Jacobs.
In Indiana Regional Recycling, Inc.v. Belmont Industrial, Inc., a 16-page opinion, Judge Riley writes:
Appellant-Plaintiff, Indiana Regional Recycling, Inc. (Indiana Regional), appeals the trial court’s summary judgment in favor of Appellee-Defendant, Belmont Industrial, Inc. (Belmont), with respect to Indiana Regional’s claims that it had an easement from prior use or necessity on Belmont’s property, and that Belmont had committed tortious interference with Indiana Regional’s contract with its tenant. We reverse and remand for further proceedings.
In Continental Insurance Co., National Fire Insurance Co.of Hartford, Continental Casualty Co., and Columbia Casualty Co. v. Wheelabrator Technologies, Inc., and Waste Management Holdings, Inc., a 14-page, 2-1 opinion, Judge Mathias writes:
Wheelabrator Technologies, Inc. (“WTI”) and Waste Management Holdings, Inc. (“Waste Management”) (collectively “Waste”) sued a large number of insurance companies (collectively “the Insurers”) seeking insurance coverage for underlying asbestos and mixed dust-related claims. In this interlocutory appeal, the Insurers appeal the Marion Superior Court’s order denying their motion for summary judgment in connection with Waste’s second amended and supplemental complaint. On appeal, the Insurers present a number of issues, which we consolidate and restate as the following: whether the trial court erred in determining that Waste might be entitled to coverage under the Insurers’ policies. We reverse and remand for proceedings consistent with this opinion. * * *

For all of these reasons, we conclude that Waste is not entitled to coverage from Honeywell’s Insurers for the Baghouse Claims at issue in this appeal. Accordingly, we reverse the trial court’s denial of the Insurers’ motions for summary judgment and remand with instructions that the trial court enter judgment for the Insurers on the coverage issues in the instant appeal.
Reversed and remanded for proceedings consistent with this opinion.

VAIDIK, J., concurs.
KIRSCH, J., dissents. [with no opinion]

A.A.Q. v. State of Indiana

Tyronne Dickerson v. State of Indiana - "Did the trial court commit fundamental error when it granted the State’s request to allow the confidential informant to testify anonymously at trial? We affirm."

John V. Dora v. State of Indiana

NFP civil opinions today (3):

Term. of Parent-Child Rel. of H.B., B.B., and J.M.; C.M. v. Indiana Dept. of Child Services, and Lake County Court Appointed Special Advocate (NFP)

In Re the Marriage of: Duane Maxwell Jennings v. Richelle Danea Jennings (NFP)

Term. of Parent-Child Rel. of S.S., C.T., K.G.T., and K.M.T.; L.S. and A.T. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (10):

Michael Anthony Castillo v. State of Indiana (NFP)

Cameron Jones v. State of Indiana (NFP)

Spencer Norvell v. State of Indiana (NFP)

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

Travis L. Anderson v. State of Indiana (NFP)

Gary Jones v. State of Indiana (NFP)

Ronald Coldren v. State of Indiana (NFP)

Toriano Meade v. State of Indiana (NFP)

Louis D. Cole v. State of Indiana (NFP)

Toby Carroll v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 06, 2011
Posted to Ind. App.Ct. Decisions

Stage collapse - "The attorney general's office has made their settlement offer to victims of the State Fair stage collapse"

That is the initial report from Sandra Chapman of WTHR 13 at 1:18 pm:

Families of those who were killed when the grandstand stage rigging collapsed before the August 13 Sugarland concert will receive $300,000. Those with physical injuries will receive 65 percent of submitted medical expenses, while those with paralysis will get 37 percent of multiple medical expenses, up to $600,000.

The victims and their attorneys will decide whether to accept the offers by December 12.

[Update at 1:54 pm] The AG has now issued this news release. Some quotes:
INDIANAPOLIS - Today Indiana Attorney General Greg Zoeller announced the payment plan for distributing the maximum $5 million in tort claim funds to victims of the Indiana State Fair tragedy.

With the amount the State has available for victims of the August 13 incident capped at $5 million, the payment protocol guarantees that at least $300,000 will be offered to the estates of each of the seven deceased victims in the stage rigging collapse.

Sufficient funds remain to compensate 61 other surviving victims who were among the most seriously injured. The computation works out to payments that are approximately 65 percent of the value of medical bills victims documented when they submitted their claims to the State. Every seriously injured victim who submitted medical records will receive an offer of settlement.

Shortly after the August 13 disaster, Zoeller announced he would distribute the full $5 million in tort claim funds to victims on an expedited basis, without delays and costs from litigation regarding state liability. Zoeller brought in nationally-recognized victim-compensation expert Kenneth Feinberg, who administered victim compensation funds after 9/11, the Virginia Tech shootings and the BP Gulf oil spill, to assist the Attorney General's Office in devising a protocol for distributing settlement payments to victims of the State Fair tragedy. * * *

Claimants and their attorneys have been notified of the State's settlement offers. They have until December 12 to respond and accept or reject the offers. If any offers are rejected, then funds allotted for those individuals will be added to those for other claimants who accepted offers and their amounts will be recalculated. Once offers are accepted and claimants sign a release of liability, the State through the State Auditor's Office will mail checks or issue electronic funds transfers later in December. * * *

After the State Fair tragedy, a total of 114 individuals or their estates filed 101 original tort claims (some of them filing jointly) against the State using a customized State Fair tort claim developed by the Attorney General's Office with Feinberg's help.

A claims-management firm retained by the State, JWF Specialty Company, made an extensive outreach to victims, received and processed the incoming claims, and followed up with claimants and their attorneys to obtain hospital bills and other medical records in order to calculate the medical costs involved. Through that data, the Attorney General's Office developed a payment formula based on a modified protocol used after a previous incident for determining settlement amounts for claimants.

Also, during the process of calculating offers, the Attorney General's Office participated in mediation with a group of 30 attorneys and law firms representing many claimants and reached tentative accord on the protocol. Settlement offers are with the consent of the Governor's Office, and all claimants have the legal right to decline a settlement offer and take their chances with filing a lawsuit in court.

"Nearly all the claimants indicated they want expedited early settlements with the certainty of payment now to assist with their immediate medical bills and lost incomes, rather than the uncertainty of lawsuits that could take years to litigate with no guarantee of payment if the funds are exhausted," Zoeller said.

Posted by Marcia Oddi on Tuesday, December 06, 2011
Posted to Stage Collapse

Law - "Must home sellers disclose murder/suicide?"

That is the heading of this article at Benchmarks, Lawyers USA’s blog analyzing recent decisions. Here the case involved is a Nov. 29, 2011 Superior Court of Penn. 2-1 opinion, Milliken v. Jacono. The article begins:

If you bought a home and found out later that it had been the site of a murder/suicide, you might be more than a bit peeved that the sellers didn’t mention that fact before closing the deal. But would the seller’s lack of candor actually amount to a violation of state law requiring the disclosure of “material defects” in a property?
The ILB had a July 2, 2007 entry on this topic, headed "Woman didn't know rental house was marder scene." The entry looks at a number of stories about stigmatized property and cites an Indiana law.

Posted by Marcia Oddi on Tuesday, December 06, 2011
Posted to General Law Related

Courts - Supreme Court still looking at confrontation clause

Tom Goldstein, Supreme Court guru, had a preview article yesterday at SCOTUSblog about today's argument in:

... Williams v. Illinois, the next in the line of cases involving the Court’s more defendant-friendly interpretation of the Confrontation Clause. The question is whether the Confrontation Clause is violated if an expert testifies about the results of testing conducted by a non-testifying third party, if the report itself is not introduced at trial.

Posted by Marcia Oddi on Tuesday, December 06, 2011
Posted to Courts in general

Law - "A Patient Sues His Dentist Over a Contractual Ban on His Posting Negative Online Reviews of Her Work"

This article was pretty eye-opening to me. Law prof Anita Ramasastry's Dec. 6th consumer law column at Justia's Verdict begins:

In this column, I will discuss the growing trend of doctors, dentists, and other healthcare providers using contracts—typically, contracts provided by the company Medical Justice—in an attempt to decrease or eliminate the negative reviews that are posted about them on popular consumer-ratings websites.

I will focus, in particular, on a recent consumer class action lawsuit that challenges such contracts, and then go on to describe other measures that have been taken, or suggested, in this area.

Posted by Marcia Oddi on Tuesday, December 06, 2011
Posted to General Law Related

Ind. Courts - More on: Bei Bei Shuai Appeal set for Dec. 13th; Briefs posted by ILB

Updating this ILB entry from Dec. 4th, which makes available to the public both the merit and numerous amicus briefs filed in the Bei Bei Shuai v. State of Indiana appeal, the Indiana Court of Appeals has just issued this news release relating to the oral argument. It begins:

Court of Appeals considers pretrial motions in case alleging murder, attempted feticide

Public can view live webcast of oral argument in Bei Bei Shuai v. State of Indiana

INDIANAPOLIS – The Court of Appeals of Indiana will hear oral argument at 1:30 p.m. Dec. 13 in a case involving murder and attempted feticide charges against a Marion County woman.

In this case, the State charged Bei Bei Shuai with murder and attempted feticide based on Shuai’s ingestion of rat poison when she was 33 weeks pregnant and the subsequent death of A.S., who was delivered by caesarean section. Shuai appeals the denial of her Motion to Dismiss the charges against her and the denial of her Petition for Habeas Corpus and Request for Hearing and Reasonable Bail.

Seventy parties have filed amicus briefs with the court on Shuai’s behalf, including a wide range of medical, mental health and civil liberties organizations.

Lawyers will have 30 minutes each to make their cases before a panel of Judge Edward W. Najam, Jr., Judge Patricia A. Riley and Judge Melissa S. May. The oral argument will be in the Supreme Court Courtroom, Statehouse Room 317.

Specific case information is filed with the Appellate Clerk’s Office, Statehouse Room 216. The cause number is 49A02-1106-CR-486.

Posted by Marcia Oddi on Tuesday, December 06, 2011
Posted to Indiana Courts

Stage collapse - "Stage Collapse Survivor Fights for LGBTQ Civil Rights"

Larry Yellen of FOX Chicago News had this nearly 5-minute interview last evening. A quote:

A Chicagoan who was critically injured that night, Alisha Brennon, reaches a milestone in her recovery on Tuesday. Brennon suffered a skull fracture, a fractured cheekbone, broken ribs and a broken leg, all of which are healing well.

The Rogers Park woman goes back to work as a legal assistant Tuesday.

What hasn't healed is the emotional scarring from the death that night of her partner, Christina Santiago.

They were united by an Illinois civil union. Santiago was a strong advocate for gay and lesbian rights.

Brennon said she's becoming an advocate herself, after learning that Indiana does not legally recognize civil unions from other states.

That could prevent surviving members of a same sex couple, like her, from recovering damages for a partner's death.

Although there is a transcipt, the video itself has some added details.

You may find what now total more than 50 ILB entries relating to legal aspects of the State Fair stage collapse by using the archive category, "Stage Collapse."

Posted by Marcia Oddi on Tuesday, December 06, 2011
Posted to Stage Collapse

Courts - "Congress Considers Televising Supreme Court Arguments"

Today at 10 AM the U.S. Senate Judiciary Committee will hold a hearing entitled “Access to the Court: Televising the Supreme Court.” Details here via C-SPAN.

In addition, C-SPAN has a massive collection of resources on the issue of opening
the Supreme Court to cameras, includes videocasts of the justices' views, scores of articles from nation-wide media outlets on cameras in the court, etc.

Posted by Marcia Oddi on Tuesday, December 06, 2011
Posted to Courts in general

Monday, December 05, 2011

Ind. Courts - "School To Pay $100K In Bullying Lawsuit: Family Claims District Didn't Protect Student "

WTHR 6 is reporting this evening:

BARTHOLOMEW COUNTY, Ind. -- A central Indiana school district will pay $100,000 to settle a lawsuit accusing staff members of failing to protect a student from bullying. * * *

The family's lawyer accused the Bartholomew Consolidated School District of not enforcing its own anti-bullying policies.

The district agreed to pay $100,000, but declined to comment on the case or share its anti-bullying efforts with RTV6.

"The message is, if you don't act immediately and take this stuff seriously and train your teachers, you are going to be liable," said attorney Michael Thomasson.

The Herrick family's insurer agreed to pay a $50,000 settlement to the Sobieralaski family, but denied any wrongdoing.

In an email, the [Herrick's] family's attorney said the facts developed during the investigation of the lawsuit confirmed that the bullying allegations were not supported by the evidence.

Purely to avoid the expense of a federal jury trial, my clients' insurer agreed to pay a settlement, which specifically stated that our clients denied any wrongdoing," wrote attorney Joseph D. O’Connor. "Had the matter proceeded to trial, I am confident that a jury would have vindicated our clients."

The settlements were reached Nov. 22. The Sobieralaski family said they were happy with the outcome.

The Indianapolis Star has had several recent stories on a lawsuit in Fishers. Dan McFeely's story on Nov. 28th began:
FISHERS, Ind. -- The mother of a high school freshman who killed himself last year has filed a lawsuit in federal court against Hamilton Southeastern Schools -- accusing the district and its employees of not doing enough to stop bullying incidents which, she says, led to suicide.
On Dec. 1 the Star posted this story by Chris Sikich that began:
Hamilton Southeastern Schools Superintendent Brian Smith fired back Wednesday against allegations that the district did not do enough to prevent Jamarcus Bell from being bulled at school.

Posted by Marcia Oddi on Monday, December 05, 2011
Posted to Indiana Courts

Courts - Changes to Federal Rules took effect Dec. 1, 2011

Brief details here.

Posted by Marcia Oddi on Monday, December 05, 2011
Posted to Courts in general

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

For publication opinions today (2):

In Linzy C. Clark v. State of Indiana , a 12-page opinion, Judge Vaidik writes:

Linzy C. Clark appeals the trial court’s denial of his motion to dismiss the notice of probation violation because the State did not file it within forty-five days of receiving notice of the violation. This case presents a unique question because Clark’s probation was transferred from Madison County to Tippecanoe County. Tippecanoe County – the receiving court with supervisory authority – had notice of Clark’s violation, but Madison County – the sentencing court – did not. Because we find that notice to the receiving court is notice to the sentencing court and Madison County did not file the notice within forty-five days of receiving notice of the violation, we conclude that the trial court abused its discretion in denying Clark’s motion to dismiss. We therefore reverse the trial court.
In Jason Jones v. State of Indiana , a 15-page opinion, Judge Vaidik writes:
Jason Jones appeals his conviction for Class B felony dealing in methamphetamine and Class B misdemeanor visiting a common nuisance. Having evaluated Jones' claims, we conclude that the trial court did not abuse its discretion by admitting testimony and photographs in lieu of certain physical evidence that had been destroyed by law enforcement officers in accordance with Indiana Code section 35-5-5-5. Further, the trial court did not err by allowing a law enforcement officer to testify as a skilled witness regarding the one-pot reaction method of manufacturing methamphetamine. We affirm.
NFP civil opinions today (0):

NFP criminal opinions today (2):

Gold C. Washington v. State of Indiana (NFP)

Aaron Michael Rohr v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 05, 2011
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending December 2, 2011

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Nov. 18, 2011 list.]

Here is the Clerk's transfer list for the week ending December 2, 2011. It is two pages (and 26 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, December 05, 2011
Posted to Indiana Transfer Lists

Ind. Decisions - Non-Indiana bankruptcy opinion today from 7th Circuit

In re IFC Credit Corp., an 11-page opinion by Judge Posner, begins:

IFC Credit Corporation voluntarily declared bankruptcy under Chapter 7 of the Bankruptcy Code on July 27, 2009. Its bankruptcy petition was signed only by its president, however, and he is not a lawyer—a slip that precipitated this appeal—though the next day the company filed an amended petition signed by a lawyer. * * *

Northbrook’s jurisdictional argument , rejected by the bankruptcy and district judges and now pressed on us, is that the fact that the original petition for bankruptcy was not signed by a lawyer made the bankruptcy proceeding void, or as state court cases say (though the question whether a person or firm or other entity may litigate in federal court pro se is a question of federal procedural law rather than of state law, Elustra v. Mineo, 595 F.3d 699, 704 (7th Cir. 2010)), a “nullity.” * * * If so, the absence of jurisdiction could not be cured by amending the petition, as IFC had done the day after filing it.

Posted by Marcia Oddi on Monday, December 05, 2011
Posted to Ind. (7th Cir.) Decisions

Law - "Anti-Abortion Groups Are Split on Legal Tactics"

The NY Times published this long story by Erik Eckholm yesterday. A few quotes:

For decades, established anti-abortion leaders like National Right to Life and Catholic bishops have pushed for gradually chipping away at the edges of Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion, with state laws to impose limits on late-term abortions, to require women to view sonograms or to prohibit insurance coverage for the procedure.

But now many activists and evangelical Christian groups are pressing for an all-out legal assault on Roe. v. Wade in the hope — others call it a reckless dream — that the Supreme Court is ready to consider a radical change in the ruling.

The rift widened last month over a so-called personhood amendment in Mississippi that would have barred virtually all abortions by giving legal rights to embryos. It was voted down but is still being pursued in several states.

Now, in Ohio, a bill before the state legislature that would ban abortions once a fetal heartbeat is detectable, usually six to eight weeks into pregnancy, is the latest effort by activists to force a legal showdown. The so-called heartbeat bill is tearing apart the state’s powerful anti-abortion forces. * * *

Officially, National Right to Life, the umbrella group for state chapters, has taken no position on the heartbeat bill or on the fracturing of the movement. The national spokesman, Derrick Jones, said, “This isn’t really something we want to get into.”

James Bopp Jr., a lawyer in Indiana who is general counsel to National Right to Life but did not speak for the organization, condemned both the personhood and the heartbeat proposals as futile and likely to backfire. But he played down the current split.

“There has always been a division between those who want to concentrate on what will make a difference, and those who are more interested in making a statement that makes them feel better,” he said.

The heartbeat bill, if not as sweeping as personhood, has a more visceral public appeal, its promoters argue, and avoids some of the pitfalls of the personhood proposal, posing no threat to contraception or critical medical care.

Posted by Marcia Oddi on Monday, December 05, 2011
Posted to General Law Related

Environment - "Report calls for study of national lakeshore boundaries"

Joyce Russell of the NWI Times reported this interesting story on Dec. 1st. Some quotes:

It also is difficult to manage a park of about 15,000 acres when you're not quite sure where it begins and ends.

The park is fragmented into 16 disconnected pieces, according to "National Park, Regional Treasure The Future of the Indiana Dunes National Lakeshore," which gives unique ecological and resource management challenges.

The report calls for a boundary study performed by the National Park Service at the request of Congress to identify how to fill gaps and notches and connect fragments.

Indiana Dunes National Lakeshore Superintendent Costa Dillon agreed the sometimes undefined boundaries of the park cause difficulties and lost opportunities. Only 10 percent of the park's boundaries have been surveyed.
Visitor identification and understanding of what's in and what's out of the park is difficult. Parking areas are a prime example, Dillon said. Because of the irregular boundaries, visitors often are uncertain as to which lots are owned by the park and which are owned by municipalities.

There's also no defined entrance or gate into the park, which confuses visitors and prevents the national lakeshore from charging entry fees like other national parks do, Dillon said. Fees collected at a national park stay within that national park and could be used to pay for infrastructure or shuttles.

A boundary study, Dillon said, would determine if the park's present boundaries are effective in meeting the park's mission.
However, the National Park Service is not looking to do a boundary study now, Dillon said. * * *

Former Superintendent Dale Engquist, now president of the Shirley Heinze Land Trust, said that during his tenure the park's boundaries were expanded in 1976, 1980, 1986 and 1992.

Each expansion was done on a piecemeal basis at the request of an outside group, Engquist said.

"No one ever looked independently at what should be in the park," Engquist said, adding that has added to the disjointed, fragmented boundaries. "As the former superintendent, if someone had proposed a boundary study to define where the boundaries are, I would have supported it."

If there were a study to identify new boundaries, those boundaries would have to be approved by Congress. Even then, the National Park Service wouldn't own the land. There are about 100 parcels within the park's boundaries that are not owned by the park service.

Current policy dictates property be purchased only from willing sellers. Funding for park land purchases also has been cut.

But buying land doesn't have to be the only answer to protect the park, Engquist said.

"We have to look at where is the park most threatened, where is its most sensitive boundary," he said. It is those locations where a conservation easement could be in place to protect the boundaries.

Here is the full report,The Future of the Indiana Dunes National Lakeshore.

Posted by Marcia Oddi on Monday, December 05, 2011
Posted to Environment

Ind. Courts - Fort Wayne problems collecting parking fines: talks of city court; duplicate license plate numbers

Updating this ILB entry from Dec. 23, 2010, headed "Fort Wayne officials decide not to pursue city court," Benjamin Lanka of the Fort Wayne Journal Gazette reported yesterday as part of a lengthy story on the city's problems in collecting unpaid parking ticket fines:

One year ago, Kennedy and Mayor Tom Henry proposed creating a Fort Wayne city court. The idea was immediately panned by the county prosecutor and judiciary for being inefficient and unnecessary.

As quickly as it was proposed, a city court was withdrawn with promises of a better working relationship between the city and the county court system.

Promises, Kennedy said, were just “a bunch of talk.”

Just before Christmas last year, Deputy Mayor Beth Malloy said the city court proposal led to an increased interest by city and county officials to discuss how to better handle city ordinance violations. There were to be meetings conducted this year to discuss making the process better.

Those meetings never occurred.

Mike McAlexander, chief deputy prosecutor for the county, said Malloy was to contact his office to schedule those meetings.

“We never received a phone call or other invitation to further discuss the issue,” he said.

In fact, McAlexander said the prosecutor’s office never heard another complaint about issues since he sat with Malloy at that December news conference.

He said the court system does not handle parking tickets, as those are the city’s responsibility, and he believed the city court was proposed to help resolve issues surrounding other city violations.

City Attorney Carol Helton said the city is able to prosecute its cases on two afternoons a week in Allen Superior Court. With the high volume of cases in misdemeanor court – ranging from speeding tickets to smoking violations – Helton said it can be onerous on people looking to protest a parking ticket.

Instead of pursuing talks with the county, the city began using a new outside vendor to help collect unpaid parking tickets: T2 Systems, of Indianapolis.

The initial returns were good, Kennedy said, with a first mailing of notices by the company reaping about $60,000 in paid fines.

A second mailing, in April, produced problems.

People started calling from across the state questioning the notices, saying they had never been in Fort Wayne. Kennedy said her staff voicemail boxes were full of such complaints, although she noted most people had been fairly polite.

The problem was the company was requesting registration information based on only the license plate number, not the type. For years, the Indiana Bureau of Motor Vehicles issued identical license plate numbers for different plate types.

This means a passenger car could have the same number as a tractor-trailer rig or a municipally owned vehicle, according to Dennis Rosebrough, BMV spokesman.

This caused notices of unpaid tickets to be sent to the wrong people, Kennedy said, slowing collections. She thought the problem was fixed when another round of notices went out in November, but staff again returned to numerous complaint calls – some from the same people who called in the spring.

Rosebrough said the state decided to change the practice last year so that every plate, regardless of type, had a different combination of letters and numbers. He said the change was spurred by problems other states were having enforcing tickets from traffic or toll road cameras.

It will probably take until the end of 2013 for all the same-numbered plates to cycle through the system, however.

Kennedy said she is working with her vendor on the problem and why it occurred. Until it is fixed, she said the city is refraining from paying the vendor. According to the city’s online information portal, it made two payments to T2 this year: $320.35 in January and $150.64 in August.

Once the problem is fixed, Kennedy said she hopes to be able to send notices out each month in an effort to remind people to pay.

Posted by Marcia Oddi on Monday, December 05, 2011
Posted to Indiana Courts

Law - "Amazon's Special Deals With States Unconstitutional, Law Profs Say"

Janet Novack, Forbes staff, has this article dated Dec. 4. A quote:

[I]n June, after much political drama, South Carolina Gov. Nikki Haley, a Republican, allowed a bill to become law without her signature that was written explicitly for Amazon and that gives a sales tax collection waiver until 2016 to any company investing at least $125 million in distribution centers and creating 2,000 full time jobs. Similarly, in October, Tennessee Gov. Bill Haslam, also a Republican, announced a deal to allow Amazon to delay sales tax collection until 2014 in return for bringing 3,500 warehouse jobs to the state. (Legislation must still be passed to implement that pact.)

The new analysis, by University of Georgia Law Professor Walter Hellerstein and University of Arizona Law Professor John A. Swain, is being published in Monday’s edition of Tax Analysts’ State Tax Notes (subscription only). While technical, it is of more than academic interest—and not just because the authors are top experts in the field. The South Carolina and Tennessee concessions granted Amazon remain controversial and a legal challenge is always possible. Just last month, Simon Property Group, the nation’s largest owner or retail real estate, filed suit against the State of Indiana seeking to force it to require Amazon to collect Indiana sales taxes. (Amazon operates four distributions centers in that state, too.)

Posted by Marcia Oddi on Monday, December 05, 2011
Posted to General Law Related

Environment - The Hoosier Environmental Council (HEC) and the Valparaiso-based Legal Environmental Aid Foundation (LEAF) merge

Here is the announcement from the HEC site. LEAF, a NW Indiana organization founded by Kim Ferraro, has made a name for itself by "providing pro bono legal services to environmental activists and organizations for protection of Indiana's air, land, water and wildlife." More here.

Posted by Marcia Oddi on Monday, December 05, 2011
Posted to Environment

Ind. Law - "IU buys up .xxx domain names: University protecting its brand from use on X-rated websites"

Mike Leonard has the story in the $$$ Bloomington Herald Times. A few quotes:

There are more than a few jokes that could be made about Indiana University buying 11 .xxx domain names reserved for adult or pornographic online material.

Some eyebrows might be raised at the news that each domain registration costs $200, pushing IU’s investment in .xxx domains to a total of $2,200 and securing those names for 10 years.

For the university, it’s no laughing matter. And it’s about more than the embarrassment of someone going to indiana.xxx and seeing nude photographs of men or women doing who-knows-what.

To Valerie Gill, university director of licensing and trademarks, it’s a cost-saving move. “If someone were interested in using our name or our trademarks for one of these .xxx sites, it would cost us several thousand dollars to fight it legally,” she said. * * *

Federal officials anticipated the interest universities would have in claiming .xxx names by giving them a head start on claiming them. The .xxx suffix won’t be available to the general public until Dec. 6.

Posted by Marcia Oddi on Monday, December 05, 2011
Posted to Indiana Law

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

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

But first, please think about supporting the ILB in 2012!

From Sunday, December 4, 2011:

From Saturday, December 3, 2011:

Posted by Marcia Oddi on Monday, December 05, 2011
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/5/11):

Thursday, December 8th

Next week's oral arguments before the Supreme Court (week of 12/12/11):

Thursday, December 15th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/5/11):

Tuesday, December 6th

Next week's oral arguments before the Court of Appeals (week of 12/12/11):

Monday, December 12th

Tuesday, December 13th

Thursday, December 15th

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

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


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

Posted by Marcia Oddi on Monday, December 05, 2011
Posted to Upcoming Oral Arguments

Sunday, December 04, 2011

Ind. Courts - Bei Bei Shuai Appeal set for Dec. 13th; Briefs posted by ILB

Updating a long list of ILB entries on Bei Bei Shuai, the suicidal woman changed with feticide, the Court of Appeals will hear oral argument in Bei Bei Shuai v State on 1:30 pm, Tuesday, Dec. 13, in the Supreme Courtroom and it will be webcast. The panel is Judges Najam, Riley and May.

The appeals have been consolidated, meaning that the original bond denial appeal, and the appeal filed in October which, according to the Indy Star story at the time, seeks 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," will now be heard on Dec. 13th.

There is national interest in this case and a number of amicus briefs have been filed on behalf of Ms. Shuai. Happily, the ILB has been able to acquire the briefs of the parties and of the amici curiae, and is posting them here:

Posted by Marcia Oddi on Sunday, December 04, 2011
Posted to Indiana Courts

Saturday, December 03, 2011

Law - What are the statutes of limitations on child sexual abuse?

A 50-state overview of the civil and criminal statutes of limitations in child sexual abuse cases: "Civil claims are brought by victims to recover for their injuries. Criminal cases are brought by prosecutors and involve punishment prescribed by statute."

Via the "Reform the Statute of Limitations on Child Sexual Abuse" website.

As law prof Marci A. Hamilton notes in her Dec. 1, 2011 article in Verdict, titled "A Tale of Two States and Three Survivors: The Legal Obstacles Relating to Syracuse University’s Sex Abuse Scandal":

This simple comparison of child sexual abuse SOLs in two contiguous states, New York and Pennsylvania, should give readers an idea of the confusion and complexity when we widen the lens to take in all 50 states.

I have a website, www.sol-reform.com, for which I regularly update a 50-state survey of criminal and civil SOLs for child sexual abuse. It is a Herculean task that takes a large team of students to accomplish. Not only must the law in 50 states be kept current, but updates are constantly occurring, as the law is in constant flux.

Whatever limitation is set in a particular state, eventually a case of heinous abuse is discovered that is time-barred—leading to a grave injustice. Then the state extends the SOL so the next equally heinous case will be covered. But unless the SOLs are eliminated, there will always be the next awful case.

Posted by Marcia Oddi on Saturday, December 03, 2011
Posted to General Law Related

Law - "On Campus, a Law Enforcement System to Itself"

Nina Bernstein of the NY Times reported Nov. 11, 2011 this story on campus police forces that is relevant to a number of earlier ILB entries. The focus of the NYT story is "The Penn State scandal is emblematic of a parallel judicial universe favoring college athletes." Some quotes:

But the [Penn State]case is also emblematic of a parallel judicial universe that exists at many of the country’s colleges and universities.

On most of these campuses, law enforcement is the responsibility of sworn police officers who report to university authorities, not to the public. With full-fledged arrest powers, such campus police forces have enormous discretion in deciding whether to refer cases directly to district attorneys or to leave them to the quiet handling of in-house disciplinary proceedings. * * *

But many serious offenses reach neither campus police officers nor their off-campus counterparts because they are directly funneled to administrators. * * *

Separately, the scandal puts Penn State on the radar of the department’s Civil Rights division, which this April issued a tough letter to all 6,000 colleges and universities that accept federal money, spelling out how they must handle cases of sexual violence under Title IX of the Civil Rights Act to prevent the creation of “a hostile environment” for accusers that would violate equality of access to education.

Posted by Marcia Oddi on Saturday, December 03, 2011
Posted to General Law Related

Law - "Interpreting The Constitution In The Digital Era"

Jeffrey Rosen and Benjamin Wittes have co-edited an anthology, "Constitution 3.0: Freedom and Technological Change", that "details how technological changes that were unimaginable at the time of the Founding Fathers are challenging our notions of things like personal vs. private space, freedom of speech and our own individual autonomy." Rosen discusses the book in this 36 min. NPR Fresh Air interview, from Nov. 30, 2011.

Posted by Marcia Oddi on Saturday, December 03, 2011
Posted to General Law Related

Law - "Learning Too Late of the Perils in Gas Well Leases"

The NY Times this week ran a long, useful article on oil and gas lease contracts. A few quotes:

Americans have signed millions of leases allowing companies to drill for oil and natural gas on their land in recent years. But some of these landowners — often in rural areas, and eager for quick payouts — are finding out too late what is, and what is not, in the fine print.

Energy company officials say that standard leases include language that protects landowners. But a review of more than 111,000 leases, addenda and related documents by The New York Times suggests otherwise:

* Fewer than half the leases require companies to compensate landowners for water contamination after drilling begins. And only about half the documents have language that lawyers suggest should be included to require payment for damages to livestock or crops.

* Most leases grant gas companies broad rights to decide where they can cut down trees, store chemicals, build roads and drill. Companies are also permitted to operate generators and spotlights through the night near homes during drilling.

* In the leases, drilling companies rarely describe to landowners the potential environmental and other risks that federal laws require them to disclose in filings to investors.

* Most leases are for three or five years, but at least two-thirds of those reviewed by The Times allow extensions without additional approval from landowners. If landowners have second thoughts about drilling on their land or want to negotiate for more money, they may be out of luck.

The leases — obtained through open records requests — are mostly from gas-rich areas in Texas, but also in Maryland, New York, Ohio, Pennsylvania and West Virginia.

Sidebars to the story include "A Layman’s Guide to Lease Terms."

Also, quite remarkably, the NY Times has digitized and made available online a database of "more than 111,000 oil and gas leases and related documents," noting that "The Times collected the leases and other related documents, signed between 2007 and 2011, because many leasing experts said that they lacked an ability to review a diversity of leases to compare terms."

Also linked is this "Natural Gas Forum for Landowners."

Posted by Marcia Oddi on Saturday, December 03, 2011
Posted to Environment | General Law Related

Courts - Advice on building an appellate practice

Last month Tom Goldstein of SCOTUSblog invited comments to appellate practitioners: "on building an appellate practice, including a Supreme Court practice. What are the challenges facing a lawyer or law student trying to break into the field? What kind of experience is necessary or at least useful? Where are the realistic opportunities?" He received a lot of good responses, take a look. I found this one, although not precisely on-point, particularly intriguing:

I wish I could give this message to myself c. 1990: Develop a system, indexed in some way that works intuitively with my own brain, to keep track of aspects of reported cases that will be useful someday.

If I had done that, and had kept it up while reading the advance sheets over the years, then I would have a list of things like “case saying that waiver arguments are among the things that can be waived” or “case holding that dictionary definitions of words aren’t the be-all and end-all of statutory interpretation” or “case holding that ‘any’ doesn’t really mean ‘any’” or that sort of thing. This would be extremely useful for an appellate or other brief-writing lawyer.

And you could share it with other lawyers, and then they would think of you as the go-to person.

Posted by Marcia Oddi on Saturday, December 03, 2011
Posted to Courts in general

Friday, December 02, 2011

About this blog - Taking the rest of the afternoon off ...

To celebrate my 70th birthday!

Become an ILB supporter.

Posted by Marcia Oddi on Friday, December 02, 2011
Posted to About the Indiana Law Blog

Courts - "Bankruptcy filings botched: Judges cracking down on paid preparers who pocket fees, overcharge clients, wreck paperwork"

That is the headline to a lengthy "Watchdog Report" in the Nov 30, 2011 Milwaukee Journal-Sentinel, written by Cary Spivak, that looks at "the shadowy world of bankruptcy petition preparers - non-lawyers who help people file for bankruptcy for a fee." Worth a read!

Posted by Marcia Oddi on Friday, December 02, 2011
Posted to Courts in general

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):

Billy Jack Steele v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 02, 2011
Posted to Ind. App.Ct. Decisions

Courts - "Kentucky officials agree to produce records in fatal child abuse, neglect cases"

From a long story by Deborah Yetter in the Louisville Courier-Journal:

FRANKFORT, KY. — Kentucky officials said Wednesday they will begin work immediately to release files of child-protection cases involving deaths or serious injury from neglect or abuse — potentially ending their protracted legal battle over public access to the records.

“They will be produced,” Christina Heavrin, general counsel for the Cabinet for Health and Family Services, said at a court hearing before Franklin Circuit Judge Phillip Shepherd. “That’s our directive.”

Jon Fleischaker, a lawyer for The Courier-Journal, said that the cabinet’s position is encouraging, but he wants to see how officials follow through with the pledge to begin reviewing and releasing documents of about 180 child-protection cases from 2009 and 2010. * * *

[Judge] Shepherd has ruled three times in the past 18 months that such material must be released under the state open records law — twice in lawsuits brought by The Courier-Journal and the Herald-Leader and most recently in a case brought by the Todd County Standard. * * *

The cabinet also backed off of Tuesday’s motion to heavily redact, or remove, certain information from the records that it deemed confidential. Heavrin said the cabinet will withhold only limited information — such as Social Security numbers and other personal information — and will supply the newspapers with a list describing any such information.

Shepherd advised the cabinet to limit redactions, saying he found little that should remain confidential in his review of two case files in which children died and which he ordered to be released. * * *

“If a record is produced with heavy redactions, I think you all can expect to be back here and we will review that,” Shepherd said. * * *

Kentucky law requires child-protection records to be kept confidential except when there is a death or serious injury, and in cases in which the cabinet had prior involvement with the family.

Shepherd said he understands that many cabinet officials feel passionate about protecting the confidentiality of records in child abuse and neglect cases, calling it “almost an article of faith” for some employees. But he said cases involving abuse deaths or severe injuries are an important exception.

“We’re talking about an entirely different situation when we have the death or near death of children who are entitled to protection,” he said. “That’s why we’ve got an open records law, to make sure the full information is out there.”

Posted by Marcia Oddi on Friday, December 02, 2011
Posted to Courts in general

Stage collapse - More on "New fallout from State Fair stage collapse tapes"

Updating yesterday's story from WTHR-TV, the AP has a story headed "Tapes show concern before Ind. stage collapse":

A recording of dispatch radio calls shows that emergency workers were expressing concern about severe weather just minutes before winds ripped through the Indiana State Fair and caused a fatal stage collapse.

WTHR-TV in Indianapolis obtained recordings of Marion County dispatch communications from the night of Aug. 13, when thousands of fans were waiting to see a concert by country music group Sugarland. The stage rigging toppled into the grandstand, and seven people died.

In one excerpt, workers are warned about five minutes before the collapse that severe weather would be moving into the area in 30 minutes or less and are advised to "use your best judgment and find shelter when needed."

Two minutes later, another radio user asks if concert fans have been released from the grandstands. The response: "I have no information on that, I will check and advise."

Moments later, a 60-mph wind gust swept through the area, toppling the stage rigging into the grandstands. Four people were killed, and three people died later. More than 40 others were injured.

An emcee had announced over the loudspeakers that severe weather was possible and told fans where to seek shelter if an evacuation was necessary, though an evacuation wasn't ordered. Fair officials have said they were preparing to order an evacuation when the stage fell.

It wasn't immediately clear Thursday which agencies were using the county's radio system that night, though emergency medical service workers are referenced several times. Indiana State Police also are referenced, but a spokesman said state police weren't on the tapes.

WTHR obtained the tapes through a public records request. Marion County didn't respond Thursday to a request for the recordings from The Associated Press, and a message was left for the county's communications chief.

An attorney representing the estates of three people killed in the collapse said the tapes showed fair officials didn't take the severe weather seriously enough.

"The tapes confirm exactly what we've been saying from day one: This was no unforeseeable event. It was predictable and preventable," lawyer Kenneth J. Allen said.

Stephanie McFarland, a spokeswoman for the Indiana State Fair Commission, declined to comment on the tapes but noted a consultant had been hired to investigate how officials prepared and responded to the accident.

Posted by Marcia Oddi on Friday, December 02, 2011
Posted to Stage Collapse

Ind. Law - More on: IU McKinney School of Law announcment

One question about the great announcement yesterday -- does this gift fix IU Indy Law rigidly on the traditional USNews "top 30" law school path, or is there still opportunity to develop a law school for the 21st century, with a more pragmatic education model, better suited for a school that not only produces so many Indiana leaders, but also fills the ranks of civil practitioners, judges, prosecutors and defenders.

[More] Here is Bill McCleery's story today in the Indianapolis Star - some quotes:

More than half of Indiana's lawyers and judges are alumni of the Indianapolis law school, noted Gary Roberts, the school's dean.

Former U.S. Vice President Dan Quayle is among the well-known graduates of the school. Its predecessor, the Indiana Law School, opened in 1894 and became a division of IU 50 years later.

"This law school is vitally important to this community and the state of Indiana," Roberts said. * * *

McKinney said he views the Indianapolis school that now bears his name as a very good law school that, with the right combination of leadership, strategy and financial resources, could become a great law school.

"I want to see them be among the top 30 law schools in the country," McKinney said. "There are more than 200 law schools in the country, and with all the great schools there are, that's a tough requirement, but I'm confident they can do it."

The school already has earned national accolades. This year, U.S. News & World Report ranked the school's legal-writing program among the top 10 nationally for the third year in a row, and National Jurist Magazine named it among the top 60 "best value" law schools.

Posted by Marcia Oddi on Friday, December 02, 2011
Posted to Indiana Law

Thursday, December 01, 2011

Stage collapse - "New fallout from State Fair stage collapse tapes"

Sandra Chapman reports this evening for WTHR 13:

INDIANAPOLIS - There is new fallout from the tapes of emergency radio calls made moments after the stage collapse at the Indiana State Fair.

13 Investigates obtained those tapes, which show that the Indianapolis Fire Department decided to increase its presence at the fairgrounds just weeks before the tragedy. It's a decision that may have saved lives. But it also reveals troubling flaws in the State Fair's mass casualty plan. * * *

An 11-page fire department post incident report details exactly what went wrong. But the city has blacked out its findings and refused to talk about them, citing a possible lawsuit. * * *

Eyewitness News reached out to the Indiana State Police and Indiana Homeland Security about their roles and are awaiting their responses.

Posted by Marcia Oddi on Thursday, December 01, 2011
Posted to Stage Collapse

Ind. Decisions - "Lincoln Plowman Sentenced to Federal Prison"

Updating this ILB entry from Sept. 16th, Jim Shella of WISH TV reports late this afternoon:

Lincoln Plowman is headed to federal prison. The former City County Council member and police major was sentenced on a bribery conviction this afternoon. He must serve 40 months in prison followed by two years of probation but that’s less than government attorneys recommended to Judge Larry McKinney.

Posted by Marcia Oddi on Thursday, December 01, 2011
Posted to Ind Fed D.Ct. Decisions

Ind. Law - IU McKinney School of Law announcment

Here it is:

IU School of Law-Indianapolis Named for Business and Civic Leader Robert H. McKinney

December 1, 2011

INDIANAPOLIS - Indiana University President Michael A. McRobbie today announced the naming of the Indiana University School of Law-Indianapolis in honor of Indianapolis attorney, banker and civic leader, Robert H. McKinney. (Watch the webcast of the press conference)

The school will be known as the Indiana University Robert H. McKinney School of Law in recognition of the largest gift ever received by the school and one of the largest in legal education.

McKinney's gift of $24 million, along with matching funds committed through the IUPUI IMPACT fundraising campaign, will bring the total value of the gift to $31.5 million.

The landmark gift will provide funding for five endowed chairs to attract and retain nationally recognized scholar-teachers to the faculty. The gift will also create a $17.5 million endowment to fund McKinney Family Scholarships for outstanding students.

"With this extremely generous gift, Bob McKinney will have a transformative impact on a law school that already has provided the academic foundation for a remarkable number of lawyers, judges and community and government leaders across Indiana and beyond," McRobbie said.

"This gift will be instrumental in our efforts to attract nationally renowned legal scholars to our law school in Indianapolis, as well as top-flight students from around the country, and we are deeply grateful to Bob for his generosity," McRobbie added.

IU School of Law-Indianapolis Dean Gary R. Roberts said the gift will make a major difference in the school's ability to achieve its long-term goals.

"It is impossible to overstate the impact of this gift upon the law school, the campus and the state," Roberts said, adding that the McKinney School is believed to be one of just a few of the nearly 200 law schools in the country to be named for a major benefactor. "It provides for faculty chairs and student support to create an unparalleled resource with which to realize the aspirations of our school -- to become one of the finest public law schools in the nation. And because this law school produces so many leaders throughout the state, this is an investment in the future of the people of Indiana and beyond."

Indiana University-Purdue University Indianapolis Chancellor Charles R. Bantz praised the gift as being consistent both with the school's future vision and Bob McKinney's commitment to legal education in Indiana.

"This tremendous gift supports the McKinney School's commitment to being a leader in legal education," Bantz said. "As a founding partner of Bose McKinney & Evans LLP, one of the largest law firms in Indianapolis, Bob McKinney will lend his name to a school that can proudly claim many prominent lawyers, judges and public servants worldwide as its alumni."

Approximately 80 CEOs of companies headquartered in Indiana are alumni of the school, as are the chief of the U.S. Transportation Security Administration, a former U.S. vice president and members of Congress. In recent years, the school has strengthened its offerings in such areas as public health, intellectual property law, state and local government law, environmental law and international law.

"A law degree is a great introduction to broad areas of leadership -- political leadership, business leadership and civic leadership," McKinney said. "The IU law school in Indianapolis plays a vital role in developing the leaders Indiana needs to succeed. I am excited to be able to make a commitment that will help the school build on its proud heritage and achieve its goal of being one of the best law schools in the country."

Originally trained as an engineer, McKinney received his law degree from IU and also holds a bachelor's degree from the U.S. Naval Academy. Until his retirement in 2005, McKinney served as chairman and CEO of First Indiana Corporation, parent company of First Indiana Bank (now known as M&I Bank). He was also a founding partner of Bose McKinney & Evans LLP, an Indianapolis law firm, from which he retired in 1992.

Because of his commitment to community-based banking, McKinney was appointed by President Jimmy Carter to chair multiple federal banking, insurance, mortgage and loan agencies. In that role, McKinney established model non-discrimination regulations and pushed for community investment.

At IU, McKinney served as a trustee from 1989 to 1998 and was president of the Board of Trustees from 1993 to 1994. He was chairman of the Board of Advisors of IUPUI and is currently a director of the IU Foundation. McKinney's previous gifts to IU include the Robert H. McKinney Law Professorship and the Bose McKinney & Evans Sherman Minton Moot Court Competition, and contributions to the V. Sue Shields Scholarship, all in the IU Maurer School of Law. He has also contributed to the Conservation Law Center and the IU School of Public and Environmental Affairs.

"Bob is absolutely dedicated to excellence and to his community, and expresses that commitment with integrity, loyalty and grace," said IU Foundation President Gene Tempel. "His gift today stands as a challenge and invitation to others who believe in the mission of the school and the importance of its contributions to the community and the state."

McKinney's gift, which will be administered and invested by the IU Foundation, was made through the IUPUI IMPACT campaign, a $1.25 billion fundraising campaign publicly announced in October 2010. As of September 2011, the effort had surpassed the $1 billion mark.

The law school, housed in Lawrence W. Inlow Hall, on the IUPUI campus, is the largest law school in Indiana, with more than 1,000 students. The school's more than 10,000 alumni reside in every U.S. state and several foreign countries.

The IU Board of Trustees approved the naming at its October meeting. The name change will be effective as of today, Dec. 1. The school is planning a formal renaming ceremony and celebration to take place in the spring.

Posted by Marcia Oddi on Thursday, December 01, 2011
Posted to Indiana Law

Ind. Law - IU Indy Law announcement at 1:30 pm ....

Watch the announcement live, here, stream starting at approximately 1:15 pm.

1:16 pm - Yes, I'm tuned into the Flash version now, looking at empty podium with music background ...

1:25 pm - Seeing tops of heads ...

1:38 pm - Robert H. McKinney has given the school a gift of $24 million. With matching funds, it will total $31 million. Will be Ind. Univ. Robert H. McKinney School of Law.

Name partner of Bose, McKinney and Evans. 5 endowed chairs, one in environmental law. McKinney Family scholarships ... McKinney earned his law degree at IU Bloomington but took many courses here.

McKinney: This is a place ready to take off ... to become a GREAT law school. Top 30 is a goal.

Posted by Marcia Oddi on Thursday, December 01, 2011
Posted to Indiana Law

Courts - "Flat-fee contracting for indigent defense is used in more than a dozen states around the country"

"States beginning to rethink indigent defense systems" is the title to this story by Maggie Clark, Stateline staff writer. A quote:

Flat-fee contracting for indigent defense is used in more than a dozen states around the country. Fixed-rate contracts negotiated by governments with private attorneys are a common way for counties and states to save money in hard fiscal times. But they have drawn criticism from a variety of quarters. Nevada, Idaho, Michigan and Pennsylvania have all established special commissions to look at indigent defense in general and flat fees in particular.

Posted by Marcia Oddi on Thursday, December 01, 2011
Posted to Courts in general

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

In Stevens v. Housing Authority (ND Ind., Lozano), a 25-page opinion, Judge Rovner writes:

Bridgett Stevens lived in federally-subsidized public housing in South Bend, Indiana. In 2008, she received three “Notice to Terminate Lease” letters from the Housing Authority of South Bend (“HASB”), each alleging that she had violated lease provisions that prohibited criminal activity on the property. After receiving the first notice, Stevens sued HASB and a number of individuals, alleging violations of the Fair Housing Act, the Fourteenth Amendment, and certain provisions of Indiana state law. After receiving the third notice, she vacated the property. The district court granted summary judgment in favor of the defendants on the federal claims and declined to exercise jurisdiction over the remaining state law claims, dismissing them without prejudice. Stevens appeals. * * *

In sum, the district court correctly granted judgment in favor of the defendants on all of Stevens’ claims. AFFIRMED.

Posted by Marcia Oddi on Thursday, December 01, 2011
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Kevin Hobson v. State of Indiana, a 5-page opinion, Sr. Judge Sharpnack writes:

Appellant Kevin Hobson appeals his conviction of criminal recklessness, a Class D felony. Ind. Code § 35-42-2-2 (2006). We affirm.

Hobson raises one issue, which we restate as: whether the evidence is sufficient to sustain his conviction.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Thursday, December 01, 2011
Posted to Ind. App.Ct. Decisions

Ind. Courts - "In his post-swearing-in speech, Justice David said his loyalty to 'the rule of law' would trump partisanship, politics and public pressure"

That is a quote from a story by Maureen Hayden of CNHI, published here in the New Albany News & Tribune. Some quotes:

[Justice] David said he was caught off-guard by the intense reaction to the majority opinion he wrote in what’s become known as the Barnes case. In short, the court ruled the common-law argument that “a man’s home is his castle” wasn’t a defense for an Evansville man who attacked a police officer who entered the man’s home while responding to a 911 domestic violence call.

The 3-2 ruling of the five-member court provoked a flurry of reaction from opponents who said it violated constitutional rights against illegal searches and seizures. The intensity of the fury pushed some legislators to demand the court revisit the case. The justices agreed to do so; in September, the court affirmed David’s opinion in a 4-1 decision.

In hindsight, David said he wishes his opinion hadn’t been interpreted in such a sweeping fashion.

“The case is not about the Fourth Amendment, it’s not about the Second Amendment, it’s not about limitations on constitutional rights.” David said. Instead, he said, it was about this: “Whether someone should be able to say ‘I can get in a fight with a police officer who is trying to investigate a 911 call.’ ”

Posted by Marcia Oddi on Thursday, December 01, 2011
Posted to Indiana Courts

Ind. Gov't. - "Government-spending info at your fingertips"

The Indiana Gateway for Government Units is the topic of an editorial today in the Fort Wayne Journal Gazette. Some quotes:

The state recently launched the second phase of Indiana Gateway for Government, which gives taxpayers the ability not only to see how local units of government are spending money but also allows users of the site to compare one city’s or county’s spending to all the others. The website gives the public access to the budgets submitted to the Indiana Department of Local Government Finance.

Phase 1 of the project required local officials to submit their budgets to the state electronically. Phase 2 combined that data into an interactive database that provides useful government financial information to the public. * * *

Government officials could throw all the numbers up on a public website and claim they are improving transparency. This website goes beyond giving people access to the numbers to providing them with the tools to make sense of those numbers.

Posted by Marcia Oddi on Thursday, December 01, 2011
Posted to Indiana Government

Ind. Courts - The authoritative voice of the court?

The Lafayette Journal Courier story quoted by the ILB in an entry earlier today included this quote re the authority to be given to articles in the Indiana Court Times, a publication of the Indiana Courts:

Supreme Court public information officer Kathryn Dolan said articles in the magazine are meant to provide advice and insight into legal issues, and recommendations made in them are not mandatory for courts.
The ILB directed a similar question to Ms. Dolan on October 31, after reviewing this article, "Authorization Required: Restricting Access to Criminal History Information," that appears in the same October 2011 issue of Court Times as the charitable contributions article. Some quotes from the article:
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, we recommend that it be done because failure to do so would largely frustrate the purposes of the statutes.

The court has authority under Administrative Rule 9(G)(1)(c) to exclude information from public access by specific court order. In granting relief to the petitioner in either of the above proceedings, the Division recommends that the court direct the clerk to remove the records from public access.

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.

Here is my Oct. 31st email to Ms. Dolan:
Hi Kathryn - Here is a question I've had for some time, and was reminded of again today by this tweet from the Indiana Courts Twitter account:
A new law allows a person to petition for restricted access to their criminal or arrest record. [The tweet links to the Court Times article]
I'd like to post the answer on the ILB.

Q - What authority is to be given to statements (eg, "the Division recommends") in articles in the Indiana Court Times? Are judges to follow them? Can attorneys and defendants rely on them? Has the Supreme Court authorized them?

I'm reminded of a recent Court of Appeals opinion relating to the application of a statute, that provides in a footnote:

The State cites the Indiana driver's manual, which states, “To turn left, be in the far left lane for your direction of travel.” Though such advice may constitute wise policy, it is not a law of this state.
Thanks for your help.
Here is the answer receieved on Nov. 2nd:
Marcia,

The articles in Indiana Court Times are not rules or statutes. Judges are not bound to follow the advice provided. The Supreme Court Justices have not seen all articles in advance, although sometimes they do see an article before it is published. The information in Indiana Court Times is the best advice that can be provided to judges, clerks and the public from thoughtful people working in judicial administration.

Kathryn Dolan
Indiana Supreme Court
Public Information Officer

Presumably this same rationale applies to items such as "Chapter 39" of the Court Administrative Manual, discussed in this ILB entry on interpretation of the new expungement (restricted access) law. As I noted about the Oct. 13th legislative meeting: "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."

Posted by Marcia Oddi on Thursday, December 01, 2011
Posted to Indiana Courts

Ind. Courts - Court Times article results in shut down of Tippecanoe Court Services charitable program

"Charitable Contributions: When Sentence Conditions Raise Ethical Concerns" was the heading to an article dated Oct. 31, 2011 in Indiana Court Times. The ILB quoted from it in this Nov. 27th entry.

A long story today in the Lafayette Journal Courier, reported by Sophia Voravong, is headed "Court Services halts donations option; 'good intentions' but ethical concerns raised." Some quotes:

It took three car trips for Jennifer Layton, executive director of Lafayette Transitional Housing Center, to gather all the toiletries and household goods that criminal defendants being monitored through Tippecanoe County Court Services donated to the nonprofit in October. * * *

"We were so excited. They're little things, but it's huge for us," she said. "We thought we'd just get some towels."

The goods were collected under a pilot program that Court Services launched in February, which allowed defendants to fulfill court-mandated community service by donating specified items to local nonprofits. * * *

But the program has come to halt, at least temporarily, after concerns were raised by the Tippecanoe County prosecutor's office. * * *

Prosecutor Pat Harrington said the issue is fairness among defendants -- whether someone who has more money can "buy out" from doing community service. In turn, that could give the impression that well-off defendants can essentially buy their way out of trouble, he said.

The prosecutor's office emailed Court Services two weeks ago after an article about ethical issues that may arise from having defendants make charitable contributions as part of a court sentence ran in the October issue of Indiana Court Times.

The Indiana Court Times is a magazine published by the Indiana Supreme Court's Division of State Court Administration for trial courts, prosecutors, clerks and litigants.

Supreme Court public information officer Kathryn Dolan said articles in the magazine are meant to provide advice and insight into legal issues, and recommendations made in them are not mandatory for courts. * * *

The program was patterned on similar programs in other Indiana counties.

Posted by Marcia Oddi on Thursday, December 01, 2011
Posted to Indiana Courts

Law - NY Times introduces a new reader comments system

This Nov. 29th ILB entry remarked on the Indianapolis Star's new public comment policy, which now requires that a reader be registered with Facebook to either post or read comments to Star stories.

Today the NY Times also has introduced a new reader comment system:

Today we are introducing enhancements to our comment system to improve the community experience across NYTimes.com.

The first thing you’ll probably notice is an entirely new design, which for the first time brings our readers’ comments onto the same page as the article or blog post. This improves the old system, which relegated them to a separate page.

We are also adding new functions. Comments are now threaded, giving readers the ability to respond to one another. In addition, we’ve added tie-ins to social media: comments, both yours and others', can now be shared to Twitter and Facebook.

And finally, we are introducing a program for “trusted” commenters -- those who have maintained a history of posting outstanding comments on the site. Submissions from these members of our community will not be moderated in advance. Trusted commenter status is offered by invitation only. (Read more about this program.)

We look forward to hearing from you. Please leave your reactions and questions about the new system in the thread below. We’ll do our best to respond to as many as possible.

Jill Abramson, Executive Editor

For details see the FAQ here. Note that in order to become a "Trusted Commenter" (by invitation only, unmoderated comments), the Times writes:
"#4. We require you to connect your Facebook account and your commenting profile to verify your name and location."
Apparently Facebook has become the defacto web standard for verifying identities.

Posted by Marcia Oddi on Thursday, December 01, 2011
Posted to General Law Related

Courts - "College Athletes Move Concussions Into the Courtroom"

That is the headline to a very long story by George Vecsey of the NY Times, published yesterday. A quote:

[Derek Owens is] one of four plaintiffs in a class-action suit that claims the N.C.A.A. has been negligent regarding awareness and treatment of brain injuries to athletes.

The suit, filed in the United States District Court for the Northern District of Illinois, represents Owens, Adrian Arrington and Mark Turner, recent college football players, and Angela Palacios, a former college soccer player.

The legal action comes after a five-year flurry of awareness of brain injuries in contact sports and follows lawsuits filed this year by dozens of former N.F.L. players who claim the league was negligent in its handling of brain trauma. The issue has moved from science labs to Congress and now to courtrooms, where the financial exposure of the sport’s governing bodies may be tested.

The N.F.L. is subsidizing care for some of the most seriously damaged of its former players, after public and Congressional pressure forced the league to acknowledge the gravity of the issue. But the damage did not begin with the first hit in an N.F.L. training camp. Players have been absorbing blows to the brain since they were children.

“I hear from former players who were taught spearing,” said Representative Linda T. Sánchez, Democrat of California, who has been an active participant in Congressional hearings into brain damage among N.F.L. players.

Posted by Marcia Oddi on Thursday, December 01, 2011
Posted to Courts in general