« January 30, 2012 | Main | February 01, 2012 »

Tuesday, January 31, 2012

Ind. Decisons - 7th Circuit decides another Indiana case today

And it is the Amber Parker case! The girls prevail to fight on another day!

In Amber Parker v. Franklin Comm. Schools (SD Ind., Lawrence), a 37-page opinion, Judge Tinder writes:

A packed gymnasium, cheerleaders rallying the fans, the crowd on their feet supporting their team, and the pep band playing the school song: these are all things you might expect to see at an Indiana high school basketball game on a Friday night. The crowd becomes part of the game; they provide motivation, support, and encouragement to the players. After all, what would a spectator sport be without the spectators? Unfortunately, this is a question the Franklin County High School girls’ basketball teams must answer every season because half their games have been relegated to non-primetime nights (generally Monday through Thursday) to give preference to the boys’ Friday and Saturday night games. Non-primetime games result in a loss of audience, conflict with homework, and foster feelings of inferiority. The question we’re asked to decide in this appeal is whether such discriminatory scheduling practices are actionable under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a). We think the plaintiffs have presented a genuine question of fact that such practices violate the statute, and therefore we vacate the district court’s entry of summary judgment in favor of the defendants on this claim. We further vacate the district court’s dismissal of the plaintiffs’ equal protection claim, brought pursuant to 42 U.S.C. § 1983, on the basis of sovereign immunity. The defendants are “persons” within the meaning of § 1983, and thus, subject to suit under that statute.
For background see this May 27, 2011 ILB entry.

Posted by Marcia Oddi on Tuesday, January 31, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Evolution is a “Johnny come lately” theory

In his Star blog, Scott Elliot of the Indianapolis Star quotes Indiana State Sen. Dennis Kruse, the author of creation "science" bill SB 89, as believing that the SCOTUS could rule differently this time.

Posted by Marcia Oddi on Tuesday, January 31, 2012
Posted to Indiana Law

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

In Atkins v. Zenk (ND Ind., Van Bokkelen), a 15-page opinion, The Honorable Tanya Walton Pratt, District Judge for the USDC for the SD Indiana, is sitting by designation, writes:

Dale J. Atkins was convicted by a jury of attempted murder, criminal confinement, domestic battery, and invasion of privacy and sentenced to 51 years in prison. Atkins filed a post-conviction relief petition in Indiana state court, but obtained no relief. He then filed a federal habeas corpus petition under 28 U.S.C. § 2254, claiming that he was deprived of his Sixth Amendment right to effective assistance of trial counsel. The district court denied the petition, but granted a certificate of appealability. Atkins appealed, and we affirm.

Posted by Marcia Oddi on Tuesday, January 31, 2012
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (4):

In William R. Wallace v. State of Indiana , an 11-page opinion, Judge Bradford writes:

Appellant-Defendant William R. Wallace brings this interlocutory appeal, claiming that the trial court abused its discretion in denying his motion to dismiss. Wallace argues that the dismissal of the Class D felony Voyeurism charge was warranted because the facts, as alleged, cannot constitute voyeurism. Concluding that the alleged facts, if proven to be true, could support a voyeurism conviction, we affirm the trial court’s order denying Wallace’s motion to dismiss. * * *

In the instant matter, the alleged facts, if proven to be true at trial, can constitute voyeurism because Wallace recorded A.J. disrobing and engaging in a sexual encounter without her consent in a clandestine, surreptitious, prying, or secretive nature. * * *

[BARNES, Judge, concurring] * * * However, the voyeurism statute was drawn primarily to punish persons who peep into bathrooms, locker rooms, dressing rooms, and the like. * * *

The camera that Wallace set up, however, did peep. Although a camera by itself cannot commit a crime, the recording it made permitted Wallace to repeatedly view A.J. naked and engaging in sex with him. A.J. did not consent to being seen naked repeatedly by Wallace.

ILB: Re the above, see also this ILB entry from Jan. 30 re the Supreme Court disciplinary action, In the Matter of William R. WALLACE.

Nathan Anderson v. State of Indiana - "In sum, we affirm Anderson‟s conviction and sentence for murder. We reverse his convictions for burglary and abuse of a corpse and vacate those sentences. As noted earlier, the State may retry Anderson for those offenses if it so chooses."

Steven Nowling v. State of Indiana - "Accordingly, we conclude that, if Nowling’s continuing objection applied to Bowles’s testimony regarding Exhibit 4, Nowling waived his ability to challenge the admission of Exhibit 4 on appeal by stating that he had no objection.

"Based on the foregoing, we grant Nowling’s petition for rehearing for the limited purpose of clarifying our analysis and affirm our original opinion."

Christopher Stark v. State of Indiana - "In this interlocutory appeal, Christopher Stark appeals the denial of his motion to suppress a handgun. We affirm."

NFP civil opinions today (3):

Susan Kohl v. Duane Kohl (NFP)

In the Matter of M.K., I.K., and N.K.; R.K. and E.K. v. Indiana Deptartment of Child Services and Stephen P. Griebel (NFP)

Daddys'O Pub, LLC v. Purkey Enterprises, Inc. (NFP)

NFP criminal opinions today (7):

Ronald D. Tiede v. State of Indiana (NFP)

Jason Schapker v. State of Indiana (NFP)

Gary Hollin v. State of Indiana (NFP)

Nick Khanthamany v. State of Indiana (NFP)

James Eubanks, Jr. v. State of Indiana (NFP)

Samantha Bradley v. State of Indiana (NFP)

Brien Clayton v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 31, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - "A little scary" writes reader

A reader has called the ILB's attention to HB 1169, which passed House third reading yesterday with a vote of 72-22. Here is the complete text:

    SECTION 1. IC 20-33-8-15, AS ADDED BY P.L.1-2005,
JULY 1, 2012]: Sec. 15. In addition to the grounds specified in section
14 of this chapter, a student may be suspended or expelled for engaging
in unlawful activity on or off school grounds if:

        (1) the unlawful activity may reasonably be considered to be an
interference with school purposes or an educational function; or

        (2) the student's removal is necessary to restore order or protect
persons on school property;

including an unlawful activity during weekends, holidays, other school
breaks, and the summer period when a student may not be attending
classes or other school functions.

Here is the rollcall.

Posted by Marcia Oddi on Tuesday, January 31, 2012
Posted to Indiana Law

Ind. Decisions - Supreme Court decides 2 today

In Henry C. Bennett and Schupan & Sons, Inc. v. John Richmond and Jennifer Richmond, a 15-page, 5-0 opinion, Justice Sullivan writes:

The sole issue in this appeal is whether the trial court abused its discretion when it permitted a psychologist to testify on behalf of a plaintiff in a personal injury case as to the cause of a brain injury.[1] Finding the trial court did not abuse its discretion in this regard, we affirm. * * *

Our review of the record, read in conjunction with the requirements of Rule 702, leads us to conclude that the trial court did not abuse its discretion in admitting Dr. McCabe’s causation testimony. The trial court extensively and thoughtfully considered the admissibility of Dr. McCabe’s testimony on three separate occasions during this litigation. Mindful that the trial court is afforded broad discretion in these matters, we decline to find any abuse of it. The judgment of the trial court is affirmed.
[1] This case involves similar issues to those we address in another case decided today, Person v. Shipley, No. 20S03-1110-CT-609, ___ N.E.2d ___ (Ind. 2012).

In Reginald N. Person, Jr. v. Carol A. Shipley, a 9-page, 5-0 opinion, Justice Sullivan writes:
As we reiterate today in Bennett, the trial court is considered the gatekeeper for the admissibility of expert opinion evidence under Rule 702. * * *

We conclude that the trial court did not abuse its discretion in finding that Dr. Turner’s opinions were based on reliable scientific principles that could be applied to the facts at issue. And, because we conclude that Dr. Turner’s testimony was properly admitted, we reject Shipley’s argument that Dr. Lazoff’s causation opinion should have been excluded by the trial court because it was based in part on Dr. Turner’s calculation of momentum transfer.

Conclusion. Again, mindful that the trial court judge is afforded broad discretion in these matters, we decline to find any abuse of it. The judgment of the trial court is affirmed.

Posted by Marcia Oddi on Tuesday, January 31, 2012
Posted to Ind. Sup.Ct. Decisions

Vacancy on the Supreme Court 2012 - Follow all the entries

Don't forget, you can follow all the entries by using the category link, "Vacancy on the Supreme Court 2012" in the right hand column.

Here is the January 27th entry identifying the applicants and taking a first look at gender and geographic diversity, judicial background, etc.

Posted by Marcia Oddi on Tuesday, January 31, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on the Supreme Court 2012 - A first look at the candidates' submissions

Again this year, Ind. University-Robert McKinney School of Law professor Joel Schumm has prepared for the ILB an introductory review of the materials submitted by the candidates for the upcoming vacancy on the Indiana Supreme Court.

Visitors to the Supreme Court library on Monday afternoon were able to view the fifteen complete applications for the vacancy on the Indiana Supreme Court. Although the 34 applications in 2010 crowded the tables in the library, the applications this round required a single table. [see photo above] Media interest was diminished as well; a single reporter viewed an application from his region of the state.

I spent my hour focusing on information that will not be included when the application forms are posted to the Court’s website later this week: law school transcripts and letters of recommendation. Skimming the writing samples revealed no major surprises. Needless to say, some applicants have writing samples that look much more like Indiana Supreme Court opinions than others. The natural advantage here goes to Judge Bradford, who has written hundreds of Court of Appeals’ opinions, and high volume and experienced appellate practitioners, like Mr. Mulvaney and Ms. McMath.

Law school grades

As detailed in this post about the semifinalists for the 2010 vacancy, the Judicial Nominating Commission is instructed by statute to consider the applicants’ “[l]egal education, including law schools attended and education after law school, and any academic honors and awards achieved.” IC 33-27-3-2(a)(1). Question IV.B. on the application form directed candidates:“List below all law schools and post-J.D. programs attended. Attach a certified transcript from each to the original application and attach copies of each transcript to each application copy.” In addition, the form asked for "Degree and Class Rank." Although the forms will soon be posted to the Court’s website, the transcripts will not. The following table, however, is sorted by applicant GPA and includes class rank information if provided:

O’Bryan IU-Maurer 3.56 1st in class
Reeder IU-McKinney 3.28 Top 11%
Seigel IU-McKinney 3.14 ---
Trent IU-McKinney 3.11 Top 1/4
Massa IU-McKinney 3.03 123/211
Pagano NYLS 3.00 89/280
Moberly IU-McKinney 2.93 cum laude
McMath IU-Mauer 2.917 ---
Mulvaney IU-McKinney 2.89 81/207
Shively IU-McKinney 2.79 166
Bradford IU-McKinney 2.74 104/185
Altice UMKC 2.731 ---
Ayers IU-McKinney 2.69 ---
Granger IU-McKinney 2.657 ---
Schultz Yale non-traditional
grades H, P, CR

With two-thirds of the pool from Indiana University Robert H. McKinney School of Law, it seems quite possible the school could soon gain a three-Justice majority on Indiana Supreme Court. Justice Dickson (‘68) and Justice David (’82) are IU-McKinney alumni. Justice Sullivan graduated from Indiana-Maurer and Justice Rucker from Valparaiso.


The average age of the applicant pool for the 2010 vacancy was 53, coincidentally the age of then-Judge Steve David, who was ultimately appointed to fill the vacancy. This time around the average is again 53, with a range of 41 to 64.

Pagano 41
Granger 42
Trent 42
Schultz 46
Massa 50
McMath 50
Altice 51
Bradford 51
Reeder 54
Seigel 57
Shively 57
Moberly 58
Mulvaney 62
Ayers 64
O'Bryan 64

Article 7, Section 11 of the Indiana Constitution provides that justices “shall retire at the age specified by statute in effect at the commencement of his current term,” which remains 75, although the mandatory retirement age for trial court judges was removed last year.

Letters of Recommendation

The Commission collects and distributes letters of recommendation to all its members. Letters may continue to arrive later in the application process. For example, then-Judge David received several letters after he advanced to the semifinal round in 2010, including two letters from unsuccessful applicants for the position. The significance of letters is debatable. For example, the 2010 applicant with the most letters, many from prominent political figures, advanced to the second round but was not a finalist. This year the applicant with the most letters appears to be Judge Bradford, whose letters came from an impressive array of prominent Republican (and even some Democratic) lawyers and public officials including (apologies to anyone inadvertently omitted): Susan Brooks, Sen. David Long, Lee McNeely, Scott Newman, Bart Peterson, Melissa Proffitt Reese, Peter Rusthoven, John Trimble, and James Voyles—as well as two of his colleagues on the Indiana Court of Appeals: Judge James Kirsch and Judge Melissa May.

Perhaps most interesting was the overlap in some of the letters. Some trial court judges wrote at least three separate letters for different applicants. It is understandable that a judge or lawyer would agree to write letters for well-qualified applicants when asked, and the order in which one is asked may not track a recommender’s ordering of the very best among a highly qualified pool. Peter Rusthoven’s single letter recommending Judge Bradford, Mr. Massa, and Mr. Schultz (in alphabetical order) provided glowing individual assessments of each before concluding the trio “would be an exceptionally well-qualified panel of three to submit to the Governor for his final appointment of the next Justice of our Supreme Court.”

Posted by Marcia Oddi on Tuesday, January 31, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - "7th Circuit E-Discovery Pilot Program Could Have Wide-Ranging Impact"

Read the long article from the Legal Intelligencer here. (Thanks to Appellate Daily)

Posted by Marcia Oddi on Tuesday, January 31, 2012
Posted to Indiana Courts

LaW - "Facebook’s New Timeline Feature: Will It Increase Users’ Risk of Identity Theft?"

Interesting article today by Prof. Anita Ramasastry in Justia's Verdict.

Posted by Marcia Oddi on Tuesday, January 31, 2012
Posted to General Law Related

Ind. Courts - "The legal battle over fines levied against absent Indiana House Democrats isn’t so much about whether they must pay the fines as it is about the collection process."

One probably can't state it more clearly than Tracy Warner does in the lede to his opinion piece today in the Fort Wayne Journal Gazette. The case is Berry v. Crawford, see Jan. 27th ILB entry here.

More from the FWJG:

Democrats argue that House Speaker Brian Bosma can’t just call state Auditor Tim Berry and tell him to withhold the fines from Democrats’ paychecks any more than a debt collector can call a company and tell them to withhold past-due payments from a worker’s check.

Just as a debt collector must go through the courts to garnish wages, the Democrats say House Republican leaders must – as a matter of law – follow the legal process to take money out of a paycheck.

Though a Marion County judge has initially agreed with the Democrats – whose attorney is Mark GiaQuinta of Fort Wayne – the Indiana Supreme Court’s action last week may well indicate the state’s justices won’t go along with that reasoning. Instead, by taking the case, the court may be signaling it will rule the courts should stay out of the fight.

The high court took jurisdiction of the case from the Marion County court. Contrary to pressing legal issues such as school vouchers and the possible removal of Charlie White as secretary of state, there is no emergency involving the fines that should require the state’s high court to step in immediately.

Justice Frank Sullivan indicated as much in a dissent on accepting the case immediately, writing that the case fails to live up to the “emergency” standards required to bypass the normal appeals process. Sullivan wrote that the state “will not suffer any substantial expense, damage, or injury” by waiting for the process to follow its usual course.

The Supreme Court’s action may well indicate that the majority of justices agree with Attorney General Greg Zoeller and other state officials, who argue that the courts have no power to resolve a legislative dispute and, as Zoeller said, “should not allow the judicial system to be used as a legislative tactic during the heat of the session.”

Posted by Marcia Oddi on Tuesday, January 31, 2012
Posted to Ind. Trial Ct. Decisions

Courts - SCOTUS Fails to Communicate Effectively to Public

In the Blog of Legal Times, Tony Mauro reports on law dean Erwin Chemerinsky's recent speech, part of a recent "symposium on the Court, the press and the public at Brigham Young University’s J. Reuben Clark Law School. Scholars and journalists spoke on different aspects of the interaction – or lack thereof -- between the Supreme Court and the public." More:

The Supreme Court is guilty of a broad “failure to communicate” to the public it serves, constitutional scholar and law dean Erwin Chemerinsky said on Friday.

And this failure extends beyond the Court’s stubborn resistance to allowing camera coverage of its oral arguments. At almost every point of its decision-making process, according to Chemerinsky, the high court should be doing more to inform the public about what it does. * * *

Chemerinsky did not focus only on the long-running debate over cameras at oral argument, highlighting other deficiencies in its procedures. The Court has pointed with pride to advances in this area, including its web site, where decisions and oral argument transcripts are posted quickly. But Chemerinsky said much more is needed for the Court to explain itself better to litigants and to the public, in the interest of enhancing the Court’s legitimacy and public understanding.

For example, he said the Court owes litigants as well as the public some explanation why it has denied review in pending petitions. The “vast majority” of petitioners, even some that pose a circuit conflict, are denied review without learning why. That, he said, is an “extremely important failure to communicate.”

Posted by Marcia Oddi on Tuesday, January 31, 2012
Posted to Courts in general

Ind. Gov't. - "Testimony to come today in Indiana Secretary of State Charlie White's fraud trial"

The jury has been seated, and now the Indianapolis Star's Carrie Ritchie previews today's opening testimony in the Charlie White criminal trial.

Posted by Marcia Oddi on Tuesday, January 31, 2012
Posted to Indiana Government