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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,
SECTION 17, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
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.

Age

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

Monday, January 30, 2012

Ind. Law - Legislation to Narrow the Scope of Indiana’s Public Intoxication Law Approved by Senate, Moves to House

From a news release:

STATEHOUSE (Jan. 30, 2012) – Senate lawmakers approved legislation authored by Sen. Mike Young (R-Indianapolis) that would narrow the scope of Indiana’s public intoxication law. Senate Bill 97 passed by a vote of 30-20 and moves to the House of Representatives for further action.

Young’s legislation states that individuals may not be convicted of public intoxication unless they endanger their own life, someone else’s life or is likely to disturb the peace or create a disturbance.

“Indiana is one of only five states with a public intoxication law that only requires a person to have consumed alcohol to be charged with the offense, with no regard to the situation,” Young said. “Our current law is too vague and allows Hoosiers to be charged with a crime even if they do the right thing and get a ride or try to walk home. That’s not fair and this bill aims to protect those individuals.”

Young said SB 97 would address a recent Indiana Supreme Court case known as Moore v. State, in which the court reinstated the public intoxication conviction of an Indianapolis woman who was a passenger in her car being driven by a sober designated driver.

For background see this ILB entry from Jan. 9, 2012 that includes references to: "That [ruling] could pull over every single taxi in Broad Ripple," about the Supreme Court's June 24, 2011 opinion in Brenda Moore v. State of Indiana.

Posted by Marcia Oddi on Monday, January 30, 2012
Posted to Indiana Law

Ind. Courts - Star's Carrie Ritchie reports from Charlie White trial this evening

Posted by Marcia Oddi on Monday, January 30, 2012
Posted to Indiana Courts

Ind. Law - More on "What's so bad about creationism in public schools?"

Answering the Muncie Star-Press editorial flagged in the Jan. 28th ILB, the Fort Wayne Journal Gazette had this editorial this weekend.

Posted by Marcia Oddi on Monday, January 30, 2012
Posted to Indiana Law

Ind. Court - More on: Clark County seeks special property tax; Judge Wentworth hears appeal on property levy

Updating this Jan. 21st ILB entry, Braden Lammers reports today in the New Albany News & Tribune via a long story headed "Decision on Clark County’s levy appeal unlikely before summer," that begins

MADISON — An Indiana Tax Court has heard the argument from Clark County for why it should be able to recover $3.2 million, but an answer from the court isn’t expected for several months.

Posted by Marcia Oddi on Monday, January 30, 2012
Posted to Indiana Government

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

Updating this ILB entry from Dec. 28, 2011, the Supreme Court has issued an order, filed Jan. 27, 2011, In the Matter of William R. WALLACE, that begins:

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(11.1)(a), files a "Notice of Guilty Finding and Request for Suspension," asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony.

Posted by Marcia Oddi on Monday, January 30, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In State of Indiana v. Johnnie S. McCaa, a 20-page opinion with a separate concurrance, Judge Bradford writes:

In this prosecution of Appellee-Defendant Johnnie McCaa for one count of Class A misdemeanor Operating a Vehicle While Intoxicated (“OWI”) in a Manner that Endangers Another Person, Appellant-Plaintiff the State of Indiana appeals from the trial court’s grant of McCaa’s motion to suppress evidence. After an initial stop of McCaa for erratic driving, police directed McCaa to move his semi-trailer truck to another location for further investigation. The State contends that the trial court erred in granting McCaa’s motion to suppress evidence generated following the initial stop. We reverse and remand with instructions. * * *

Because we conclude that the search and seizure of McCaa violated neither his federal nor state constitutional rights, we reverse the trial court’s grant of McCaa’s motion to suppress and remand with instructions for further proceedings consistent with this opinion.

KIRSCH, J., concurs.
BARNES, J., concurs with separate opinion: I begrudgingly concur here. I respect Judge Bradford’s analysis, but write to emphasize that only the unique and rare circumstances at play in this case allow me to vote to concur. If police had not been forced to initially pull McCaa over at a location that caused him to block all traffic on a well-traveled highway, which necessitated having McCaa continue driving to a different location so that FSTs could safely be administered, my vote might not be the same. No mistake should be made that law enforcement officers could or should allow a person to drive a vehicle, observe the driver, and buttress their probable cause because of these observations. These circumstances are the proverbial “once in a lifetime,” fortunately for police.

In Latoyia Billingsley v. State of Indiana , an 8-page opinion, Judge Brown writes:
Latoyia Billingsley appeals her conviction for driving while suspended as a class A misdemeanor within ten years of a prior infraction for driving while suspended.1 Billingsley raises one issue which we revise and restate as whether the evidence is sufficient to sustain her conviction. We affirm.
In A.T. (Mother) v. G.T. (Father), a 9-page opinion, Judge Darden writes:
A.T. (“Mother”) appeals the trial court’s denial of her petition for a change of judge in a custody modification action filed by G.T. (“Father”). We reverse and remand with instructions. * * *

The trial court should have automatically granted the request for automatic change of judge under Trial Rule 76(B). Furthermore, the trial court should not have held the modification hearing, as it was deprived of jurisdiction by the timely filing of the Trial Rule 76(B) request.

NFP civil opinions today (3):

Fletcher Coleman and Dorothy Coleman v. Northeast Neighborhood Revitalization Organization, Inc., and Northeast Neighborhood Council, Inc. (NFP)

Term. of the Parent-Child Rel. of J.S., minor child, and T.S. (Father) v. Indiana Dept. of Child Services, Scott County Office (NFP)

Kristen Leach v. Steven Leach (NFP)

NFP criminal opinions today (3):

Anthony A. May v. State of Indiana (NFP)

Andre Perry v. State of Indiana (NFP)

Jesse C.E. Rayford v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 30, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending January 27, 2012

[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 Friday, January 27, 2012. It is two pages (and 15 cases) long.

Four transfers were granted last week:

Posted by Marcia Oddi on Monday, January 30, 2012
Posted to Indiana Transfer Lists

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?

From Sunday, January 29, 2012:

From Saturday, January 28, 2012:

From late Friday afternoon, January 27, 2012:

Posted by Marcia Oddi on Monday, January 30, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/30/12):

Next week's oral arguments before the Supreme Court (week of 2/6/12):

Tuesday, February 7th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/30/12):

Next week's oral arguments before the Court of Appeals (week of 2/6/12):

Wednesday, February 8th

Thursday, February 9th

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, January 30, 2012
Posted to Upcoming Oral Arguments

Sunday, January 29, 2012

Ind. Courts - Even more on: A new pilot project allowing web cameras in court rooms to be announced

"Indiana to experiment again with cameras in the courtroom: 3 Lake County civil courts will take part in a pilot webcast program" is the headline to John Tuohy's story today in the Indianapolis Star.

For background, start with this ILB entry from Jan. 27th. Some quotes from Tuohy's story:

Could Indiana be the next state to allow widespread, live play-by-play testimony in its courts?

Not likely.

Indiana will permit webcasts in a pilot program in three Lake County civil courts, but Indiana Supreme Court Chief Justice Randall Shepard doesn't see access growing to the level of those two states.

"Will Indiana turn out to be like California? I wouldn't put money on it," Shepard said in announcing the program Friday. "There's no taste for all (access) with few rules."

The 18-month trial program will be viewable only on a three-hour delay and only through the Times of Northwest Indiana's website. No criminal court judges agreed to participate.

In addition, Shepard's order has 14 exceptions. Among images prohibited from the webcasts are those of minors, police informants and undercover officers. Also still dark are juvenile cases, guardian and adoption cases and paternity trials. * * *

Indiana is one of 12 states that don't allow pictures of any kind in trial courtrooms, though the Indiana Supreme Court and the Indiana Court of Appeals have had webcasts of oral arguments for about 10 years. Ohio, Kentucky and Michigan all allow cameras in the courtroom, and Illinois just announced a pilot program.

Indiana last experimented with cameras in the courtroom in 2007, but it fizzled. The 18-month test at eight courts across the state required the consent of lawyers on both sides and the judge.

As a result, only five of 350 requests were televised. * * *

"The showboating by lawyers and things like that aren't as much of a concern as they were in years past, though people still remember the O.J. case and what a spectacle it was," said Joel Schumm, a professor at the Indiana University School of Law. "But the worry now is that someone can take a 15-second clip and put it on YouTube."

ILB: Of course, lacking cameras, other alternatives do exist. For instance, puppets in courtrooms. For much more on the Ohio effort, see "Squirrel puppet stands in for live courtroom reporting in Ohio," on HULIQ.

Or the transcript may become the basis of a play, such as: "On Monday, September 19, Broadway will be the scene of a star-studded 'staged reading' of a new play—one based on the transcript of the trial in the case of Perry v. Schwarzenegger (Prop 8 trial transcript)."

Posted by Marcia Oddi on Sunday, January 29, 2012
Posted to Indiana Courts

Ind. Law - Still more on: "Hairdressers may have killed bill that would eliminate licensing"

Updating this ILB entry from Jan. 26th, and this one from Jan. 25th, the Fort Wayne Journal Gazette has an editorial today headed "Clipped bill a caution to lawmakers." Some quotes:

Don’t mess with the man or woman who cuts your hair.

That’s the lesson Hoosiers are left with after state Rep. David Wolkins pulled his bill that would have removed licensing requirements and largely deregulated a handful of professions, including barbers and cosmetologists.

Wolkins was not out to hurt beauty schools or beauticians. He offered the bill after the Regulated Occupation Evaluations Committee – a relatively independent group the legislature appointed – began its evaluations of the various professions that the state licenses.* * *

And lawmakers really need to decide whether the committee it created should continue evaluating all of the state’s 35 licensing boards. In the first round, the committee reviewed seven boards, recommending keeping three and eliminating four. The committee did just what the legislature asked, and with Wolkins pulling the bill, the legislature is ignoring the recommendations.

This Jan. 26th ILB entry pointed out that this review group is not an interim committee, but an independent, permanent, staffed, Regulated Occupations Evaluation Committee (ROEC), created by the General Assembly in 2010 to review and evaluate each regulated occupation at least every seven years.

In the past the General Assembly has enacted similar laws providing that not only state agency rules, but state agency programs and even the agencies themselves will expire unless they are readopted every seven years. These laws are generally impractical to implement in practice (for instance, many environmental rules are amended continually, so how do you determine review dates?) and review quickly becomes cursory, pushed-forward, or worse.

"Or worse" happened last year with the state's massive FSSA, which was allowed to go out of existence by oversight. There were many stories about that at the time. But as the ILB pointed in this July 10, 2011 entry:

Four years ago, at the end of 2007, the very same FSSA laws expired and apparently no one noticed! There was no statutory basis for the FSSA for months, until the laws were restored, retroactively, by actions of the 2008 General Assembly.
With this newest, 2010 law, at least the agencies do not expire automatically. But the legislature has already lost interest, while the law will continue to require review and action. Next year, the committee's recommendations re real estate, auctioneer, and plumbing occupation requirements, to name only a few, will be before the General Assembly. And the following year, a new group, etc. As the FWJG opines today: "[L]awmakers really need to decide whether the committee it created should continue evaluating all of the state’s 35 licensing boards." Or is the 2010 review law itself a waste of time and money?

Posted by Marcia Oddi on Sunday, January 29, 2012
Posted to Indiana Government | Indiana Law

Ind. Gov't. - More on "Lake Council prepares to deny public defenders insurance coverage"

Updating this ILB entry from Jan. 11th, a long story today in the NWI Times, reported by Susan Brown, is headed "Lake County public defender program at risk?" It begins:

CROWN POINT | Lake County's head of public defenders said he is readying for battle with county officials gunning to cut health insurance benefits for his attorneys.

"We are taking the same position as last year — that we feel our attorneys should be included," said Chief Public Defender David Schneider.

He said his main reasons for defending the retention of insurance benefits include the amount of time the attorneys put in on criminal felony cases — and also the $1.3 million in state reimbursements the program brings the county.

"We would be losing veteran attorneys," he said. "The ones hurt in the end are the clients."

Schneider said under the county's program, as approved by the Indiana Public Defender Commission more than a decade ago, providing health insurance was part of the agreement.

The county is spending about $410,400 to cover the insurance premiums for the felony division's 27 public defenders, plus whatever claims arise.

From a side-bar:
Coming Monday: Lake County government's self-insurance health plan could be broke in two years if officials don't reduce the claims. About 30 employees account for $5.8 million in claims.

Posted by Marcia Oddi on Sunday, January 29, 2012
Posted to Indiana Government

Ind. Law - Sentator Talllian "plots marijuana law reforms"

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

INDIANAPOLIS | State Sen. Karen Tallian, D-Ogden Dunes, knows sometimes the best way to win support for a change in the law is to give people time to get used to the idea.

That's why Tallian did not request a committee vote on Senate Bill 347 last week but still spent nearly an hour explaining to a panel of state senators how Indiana would benefit by reducing criminal penalties for marijuana possession.

Indiana's marijuana laws are among the toughest in the nation. Possession of any marijuana is punishable by up to a year in jail and a $5,000 fine. * * *

Tallian said she was encouraged members of the Senate Committee on Corrections, Criminal and Civil Matters carefully listened to her plan and seemed particularly interested in industrial hemp production.

But because 2012 is an election year, she said she thought it best to wait until next year to ask for a vote.

"This legislation is a work in progress," Tallian said. "We wanted to continue laying the groundwork."

Posted by Marcia Oddi on Sunday, January 29, 2012
Posted to Indiana Law

Ind. Law - "The local meth epidemic: craziness requires extraordinary measures"

That is the title to an editorial today in the Evansville Courier & Press. Some quotes:

The world around us here in Evansville and the Tri-State seems to have gone a little nuts over the illegal home-manufactured drug methamphetamine. The availability of ingredients, the simplified method of making it, and the powerful high it creates makes it easily the drug of choice for users -- and a genuine danger to families, friends and neighbors. Indeed, it seems to be everywhere; in November, a middle class Warrick County subdivision saw one of its homes burn after a suspected methamphetamine lab exploded in the garage.

This recent surge is tied not only to the availability of a key ingredient, the over-the-counter cold medication pseudoephedrine, but to a method of manufacturing methamphetamine called "one-pot." It has allowed its makers to move from rural settings required because of larger equipment and the noxious odor, to city locales as small as cars and apartments. * * *

Frankly, we never though we would see the day when we would suggest here that the law make it more difficult for law-abiding citizens to purchase medications, but that is what it has come to.

Posted by Marcia Oddi on Sunday, January 29, 2012
Posted to Indiana Law

Ind. Law - "Indiana does about-face on fenced hunting"

Updating earlier ILB entries from Jan. 25th and Jan. 27th on this session's canned hunting bill, HB 1265, Lesley Stedman Weidenbener has a story today in the Evansville Courier Journal, headed "Indiana does about-face on fenced hunting." Some quotes:

INDIANAPOLIS — At a long, crowded committee meeting last week about one of Indiana’s most controversial hunting issues, officials from the Department of Natural Resources kept quiet.

Department Director Rob Carter did not testify about whether the General Assembly should legalize high-fenced hunting preserves. His legislative aid did not take a position. And the agency’s top spokesman deferred questions about the issue.

It was a curious position — or lack thereof.

Just a few years ago, then-department Director Kyle Hupfer was taking a very different tack. Hupfer — Gov. Mitch Daniels’ first leader of the agency that regulates hunting — was pushing to shut captive deer hunting preserves down completely.

Under previous governors, department leaders had OK’d the operations using game breeders permits. But after a study of the businesses — which generally charge hunters thousands of dollars for a crack at shooting deer — Hupfer determined state law did not authorize them.

But before Hupfer took steps to close the preserves, he gave the General Assembly time to change the law. That led to contentious debate on the issue. * * *

In the end, lawmakers didn’t act and the DNR passed new rules — signed by Daniels — to ban fenced hunting preserves.

One owner — Rodney Bruce, who operates the 240-acre Whitetail Bluff preserve in Harrison County — sued to stay open. His lawsuit, which remains unsettled, essentially stopped the state’s actions to close the businesses.

Over the years, lawmakers have looked at the issue repeatedly. * * * None of the bills ever became law, at least in part because legislative leaders shy away from issues in which a lawsuit is pending.

This good review concludes that IDNR's failure to provide input:
despite the agency’s own rules declaring the preserves illegal [is] an about-face that has yet to have an explanation. As the bill — which will now be considered by the full House — progresses, maybe Hoosiers will get one.

Posted by Marcia Oddi on Sunday, January 29, 2012
Posted to Environment | Indiana Law

Ind. Gov't. - Another pre-trial story on tomorrow's Charlie White trial

"Political stakes are high as White goes on trial," is the headline of the AP's great story today, here in the FWJG, reported by Charles Wilson. The intro:

INDIANAPOLIS — Charlie White might not have been aware he could be breaking election law when he registered to vote at his ex-wife's address in Indiana's May 2010 Republican primary. But whether he acted deliberately or out of ignorance, experts say the action undermines the credibility of the state's top elections office.

"There are two scenarios, and neither one is very flattering," said Robert Dion, a political science professor at the University of Evansville. "Either he was not aware of the law — and that doesn't raise a lot of respect — that you have to live in the district you represent, (or) if he did know, that's even worse." * * *

"It's remarkable, because his position is charged with being the chief election officer for the entire state and overseeing the election laws. Out of all things, that's not what you want to be charged with," said Dion, referring to the voter fraud charge.

More:
One judge already has ruled that White should be ousted and replaced by Vop Osili, the Democrat he defeated. If White is convicted on even one of the seven felony counts against him, Gov. Mitch Daniels — a fellow Republican — would appoint his replacement. But White likely would appeal a guilty verdict, and even if he is removed from office, odds are there will be a court fight over who gets to replace him.

The outcome of the case, whenever it occurs, "has far-reaching political consequences," Dion said. "Lasting political consequences." * * *

White has resisted calls to resign from Democrats and Republicans alike. The Indiana Recount Commission upheld his candidacy, though its chairman scolded him for "treading the line." Democrats appealed to a Marion County judge, who eventually ruled that the commission should certify Osili as the winner of the 2010 race. Both sides then asked the Indiana Supreme Court to step in, but the high court hasn't yet agreed.

James McCann, a political science professor at Purdue University, said the situation is particularly embarrassing for Republicans, since they pushed the state's voter ID law as a way to prevent voter fraud.

"It's a big political issue," McCann said. "You think from the Republicans' standpoint they'd love to see it go away."

White has protested his innocence and has steadfastly refused to quit, maintaining he is the victim of a political witch hunt.

The Supreme Court hasn't indicated whether it will take up the case. Meanwhile, White must head back to court.

"It's like a train wreck that's going in slow motion," Dion said. "Just when you think it can't get worse, it gets worse. If it were a movie, you wouldn't believe it was happening."

Posted by Marcia Oddi on Sunday, January 29, 2012
Posted to Indiana Government

Law - IU-Mauer law prof starts law blog on legal profession

William D. Henderson, Professor of Law and Val Nolan Faculty Fellow; Director, Center on the Global Legal Profession; Indiana Univ. School of Law, Bloomington, has started a new blog: The Legal Whiteboard. Here is a sample from the initial entry:

Many people assume that the new paradigm means lawyers working longer hours for lower wages. That is one future business model. But I think it utterly lacks imagination. Lawyers are problem solvers. To my mind, the growing price elasticity for legal services and legal education is just a very difficult problem. And whenever I am faced with a very difficult problem, I typically start writing out my thoughts on a massive whiteboard. (I am told it is quite a spectacle to behold.) I am also someone who loves to collaborate. With an outward facing Legal Whiteboard, I am hoping to elicit the genius of my fellow travelers.

Posted by Marcia Oddi on Sunday, January 29, 2012
Posted to General Law Related

Ind. Law - "State joins 'green burial' movement"

The long story by Bob Scott of the Lafayette Journal and Courier, in the Indianapolis Star today, is sub-headed "Sites in Lafayette and Indianapolis are part of a growing national trend." Some quotes:

Green burials, which are eco-friendly, have been called a movement, not a fad. Advocates say they protect the environment and ecology by reducing the use of toxic chemicals, non-biodegradable materials and fossil fuels.

In addition, the cost of green burials can be lower because unostentatious caskets are used -- sometimes no casket at all -- and there is no burial vault. The body truly goes back to the earth in a natural setting. * * *

A green burial utilizes a biodegradable casket that is held together without nails, screws or hinges. Animal glue is acceptable, but not synthetic adhesives. Cloth bags or woven baskets also are used, depending on the material.

There are no concrete grave vaults or liners, and crematory urns of cornstarch or mulberry bark are preferred over metal or stone. * * *

[Rich Groeber of Hahn-Groeber Funeral & Cremation Services in Lafayette] added that there is no law that requires a family to purchase a vault or outside container for a burial.

"The cemetery sets its own standards because of maintenance," he said.

Posted by Marcia Oddi on Sunday, January 29, 2012
Posted to Environment | Indiana Law

Ind. Gov't. - "Getting caught up on the case against the secretary of state" [Updated]

Carrie Richie has a story today in the Indianapolis Star, setting the stage for "Indiana Secretary of State Charlie White's criminal trial [which] will begin Monday in Hamilton Superior Court." More from later in the story:

After an investigation by two special prosecutors, a grand jury indicted him on three counts of voter fraud, two counts of perjury, one count of fraud on a financial institution and one count of theft.

The theft charge carries a penalty of two to eight years in prison; the remaining charges carry a penalty of six months to three years.

White, who's an attorney, also could lose his law license and the secretary of state title if he's convicted.

Technically, he has lost his job already as a result of an election challenge in Marion County.

Democrats accused White of being improperly registered to vote while he was a candidate and challenged his eligibility to hold office.

The Indiana Recount Commission exonerated White last June, but a Marion County judge overturned the commission's ruling in December.

Marion Circuit Judge Louis Rosenberg decided that White should be removed from office and that Vop Osili, his Democratic opponent, should take his place.

However, White and the Recount Commission are appealing, and Rosenberg has allowed White to stay in office until a higher court hears their appeals.

Re Judge Rosenberg's ruling, an appeal for an emergency transfer has been pending before the Supreme Court for several weeks - see this ILB entry from Jan. 10, 2011 and this one from Jan. 19th.

For more on the criminal case, I'm told Fox 59's 2-hour news show ("America's News HQ") this morning (10 am-noon) will have a segment on the upcoming White criminal trial - beginning at 11:35 am.

[Updated at 10 AM] Now that I'm reading the print version of the paper, I see that Carrie Richie also has an in-depth, front-page story today in the Sunday Star, that continues on to a full inside page. A sample:

In 2010, White's connections to the governor were about to pay off. He won his party's nomination for secretary of state.

"I think one of the reasons he got the Republican nomination without really a challenge is because he had a statewide reputation of dedication and devotion to the governor," Delph said.

Things were looking good for Charlie White.

But then it was revealed that White had moved out of his Fishers council district and continued to vote there -- and draw a council paycheck. He insisted it was a misunderstanding. But Vop Osili, the Democrat who ran against White, touted White's residency issues in TV ads that questioned his ability to serve as the state's chief elections officer since he allegedly didn't follow voting laws.

The ads and news coverage of his legal problems had little effect on the race, and Republicans continued to support White.

White beat Osili by more than 300,000 votes.

Despite the questions, White had won his biggest political prize.

White's celebration, however, was short-lived. Leerkamp pursued a criminal case against White in late 2010 by requesting that two special prosecutors review the case and decide whether charges were warranted.

In March 2011, a Hamilton County grand jury indicted White on seven felony charges.

Even though Leerkamp did not make the charging decision, White has said publicly that he thinks the charges are a political vendetta.

"Nothing could be further from the truth," Leerkamp said.

Leerkamp acknowledged that White didn't support her campaigns for office, but she said she never had a personal conflict with him. And she said he never explained to her why he supported Felix over her.

"All he's trying to do is keep deflecting from his own actions and responsibilities," Leerkamp said.

[More] See also this Jan. 4th story by Ritchie on why timing is everything in the White cases.

[Still More] For more on White/Leerkamp/Delph, see this entry today in Sheila Kennedy's blog.

Posted by Marcia Oddi on Sunday, January 29, 2012
Posted to Indiana Government

Saturday, January 28, 2012

Ind. Law - Still more on "Senate votes to restore right to resist police entry into home"

Senate Bill 1, which passed the Senate by a vote of 45 to 5 on Jan. 23, 2012, remains controversial. Earlier this month the Goshen News opined under the heading "Senate Bill 1 a hurried reaction to court ruling," writing:

Instead of a knee-jerk bill drafted in haste, it would be much better to get public input on this court ruling and its impact on the public. This topic seems appropriate for a summer study committee ....
However, SB 1 is in fact the product of a 2011 summer study committee.

Today, as reported in an AP story quoted by the ILB, concern has been expressed that:

Officers responding to abuse reports could ... be blocked from entering a home because of a provision in the bill that would allow one resident’s objection to overrule permission given by another resident.
However, according to IU Law Prof Joel Schumm, "The non-consenting occupant/spouse provision is essentially a statement of settled Supreme Court doctrine: Georgia v. Randolph.

Posted by Marcia Oddi on Saturday, January 28, 2012
Posted to Indiana Law

Ind. Law - More on "Senate votes to restore right to resist police entry into home"

Updating this latest ILB entry on SB 1, Tom Davies of the Associated Press has a long story today headed: "Abuse response clouds Indiana police entry bill." A few quotes:

Advocates for domestic violence victims say Indiana legislators could wind up limiting police officers’ ability to protect those being abused under a proposal that aims to clarify a court’s ruling that people don’t have the right to resist police officers illegally entering their homes.

A bill moving through the Legislature gives residents limited rights to resist officers — even with violent force — and specifies several situations in which officers can enter a home.

Supporters say the proposal sets out a clear line on what residents and officers can do and that officers would have authority to enter a home whenever they believe someone is in danger.

But the state Senate’s decision to remove a provision that specifically allowed officers to enter a home while investigating suspected domestic violence has advocates worried.

Officers responding to abuse reports could also be blocked from entering a home because of a provision in the bill that would allow one resident’s objection to overrule permission given by another resident, said Kerry Hyatt Blomquist, legal director for the Indiana Coalition Against Domestic Violence. * * *

The bill that the Senate approved 45-5 this month would allow residents to resist if the police officer wasn’t identified or on official duty. Officers would be allowed to enter homes when they have court warrants, are chasing a criminal suspect, believe someone inside is in danger or have permission from the residents. * * *

Republican Sen. Michael Young of Indianapolis, who sponsored the bill, said he believed the original provision allowing police entry for domestic violence investigations gave officers too much leeway unless they saw actual signs of violence.

He said officers could always request a court warrant to enter a home if they still believed it was necessary.

“That’s the way it should be, because we don’t know whether that phone call (reporting violence) was legitimate or not,” Young said. “They have to have a basis to enter your property.”

Posted by Marcia Oddi on Saturday, January 28, 2012
Posted to Indiana Law

Ind. Courts - Update on: Marion County Will Elect At Least Four New Judges This Year

Updating this ILB entry from Jan. 9th, the ILB has just received this information from a reliable source re the Marion Co. GOP slating today:

Rom Byron and Steve Rubick withdrew their candidacy before the IBA poll was completed, which left eleven candidates for ten slots. Judge Carol Orbison lost by a wide margin at slating today. So, barring a surprising challenge to the slate, expect four new Republican judges on the bench in January: Clayton Graham, Amy Jones, James Joven, and Helen Marchal. Democratic slating is set for February 11.
For more on the judges/candidates, see the IBA's survey results main page.

Posted by Marcia Oddi on Saturday, January 28, 2012
Posted to Indiana Courts

Ind. Courts - Check out newest summaries of bills of interest to the judiciary

Check out the fourth weekly installment of the Legislative Update for the 2012 legislative session, from The Indiana Judicial Center. Much of interest in "the summaries of bills of interest to the judiciary heard this week in committee."

Posted by Marcia Oddi on Saturday, January 28, 2012
Posted to Indiana Courts

Ind. Courts - "Gaming raid leads to lawsuit: Ban on Internet setups called unconstitutional"

That is the headline to a lengthy story today in the Fort Wayne Journal Gazette, reported by Rebecca S. Green. Some quotes:

FORT WAYNE – In late December, Indiana Gaming Commission agents raided two local businesses and carted off 51 gaming machines and $3,000 in cash.

Now the company that owned the machines is suing the commission and Chairman Tim Murphy, claiming the state’s enforcement of a prohibition on electronic gaming devices is a violation of the company’s constitutional rights.

In a lawsuit filed in U.S. District Court in Fort Wayne on Tuesday, Florida-based Buckwheat Holdings is asking a federal judge to prevent the Indiana Gaming Commission from future enforcement. * * *

The raid came after a Dec. 19 memo issued by the Indiana Alcohol and Tobacco Commission. The memo said “sweepstakes machines” popping up in bars, restaurants, convenience stores and other premises that sold alcohol were not allowed, even for businesses authorized to have pull-tab-type games.

State officials said at the time of the raids that Internet sweepstakes machines can quickly become a problem and already have become prevalent in states such as Ohio, North Carolina and Florida. But Buckwheat Holdings argues the machines are merely Internet terminals, accessible to those who buy Internet time at a rate of $5 an hour. * * *

Attorneys for Buckwheat Holdings argue that the gaming commission’s reliance on current Indiana gaming laws is misguided and that the seizure of the machines is a violation of the company’s constitutional rights.

The U.S. Supreme Court has held that video games qualify for First Amendment protection, and the state law broadly criminalizes anything that is a simulation or variation of a slot machine, according to the lawsuit.

Under the current law, a personal computer or cellphone could be considered an illegal electronic gaming device if used to access online websites that offer simulated slot machines, according to the lawsuit.

Buckwheat Holdings alleges that the gaming commission’s enforcement of the law violates the company’s free speech rights, right to be free from illegal search and seizure, and right to due process. It is asking a federal judge to prevent the state from taking further action against the company.

This is not the first time Buckwheat Holdings has confronted the state’s gaming commission on this issue.

In October, the company filed a similar lawsuit in Marion Superior Court, and that case is still pending, according to the Indiana Attorney General’s Office.

The ILB can access the federal docket for filings via PACER, but not the Marion County courts. Here is the 17-page federal complaint filed Jan. 24, 2012 in Buckwheat Holdings v. Indiana Gaming Commission.

Posted by Marcia Oddi on Saturday, January 28, 2012
Posted to Indiana Courts

Ind. Law - "What's so bad about creationism in public schools?"

That was the headline to an editorial yesterday in the Muncie Star-Press.

Posted by Marcia Oddi on Saturday, January 28, 2012
Posted to Indiana Law

Ind. Law - "Welfare Drug Testing Bill Withdrawn After Amended To Include Testing Lawmakers"

A story in the Huffington Post today by Arthur Delaney reports that "Rep. Jud McMillin (R-Brookville), sponsor of the original welfare drug testing bill" intends to revise the bill and put it back on the calendar. A quote:

"I've only withdrawn it temporarily," he told HuffPost, stressing he carefully crafted his original bill so that it could survive a legal challenge. Last year a federal judge, citing the Constitution's ban on unreasonable search and seizure, struck down a Florida law that required blanket drug testing of everyone who applied for welfare.

McMillin's bill would overcome constitutional problems, he said, by setting up a tiered screening scheme in which people can opt-out of random testing. Those who decline random tests would only be screened if they arouse "reasonable suspicion," either by their demeanor, by being convicted of a crime, or by missing appointments required by the welfare office.

The bill is HB 1007.

Posted by Marcia Oddi on Saturday, January 28, 2012
Posted to Indiana Law

Ind. Courts - Still more on: Supreme Court to hear legislative fines/seizure appeal

Updating this ILB entry from yesterday, here is a story today from the AP's Charles Wilson. I love the headline: "Ind. court steps into legislative fines dispute."

Posted by Marcia Oddi on Saturday, January 28, 2012
Posted to Ind. Trial Ct. Decisions

Vacancy on Supreme Court 2012 - Stories today from the print press

"15 applicants seek to fill Shepard's spot on Indiana Supreme Court," from the Indianapolis Star today, reported by William J. Booher.

"15 apply to fill justice seat on high court," a report from Niki Kelly of the Fort Wayne Journal Gazette.

"Floyd judge applies for Indiana Supreme Court post," from the New Albany News & Tribune.

"Lake County judge applies for Indiana Supreme Court spot," a brief story by Teresa Auch Schultz of the Gary Post Tribune.

"Shively among 15 under consideration for seat on Indiana Supreme Court," is the heading of an AP story in the Evansville C&P. A quote:

Evansville attorney Les Shively is among 15 people under consideration to fill a vacancy on the Indiana Supreme Court. * * *

Shively, 57, said he was encouraged to seek the nomination by other attorneys in Indiana. "This is something that was not on my radar," he said.

Posted by Marcia Oddi on Saturday, January 28, 2012
Posted to Vacancy on Supreme Court 2012

Friday, January 27, 2012

Vacancy on Supreme Court 2012 - A first look at the applicants

Thanks to IU Robert McKinney School of Law's Prof Joel Schumm for this first look at the candidates:

Number of Applicants

After a record 34 applicants applied for the 2010 vacancy, the mere fifteen for this vacancy is a bit surprising. The quality of the pool, though, is impressive. Based on the press release information about interviews on February 8 and 9, it seems clear that the process will not be re-opened and extended as it was in 1994 when only ten applicants applied for the seat vacated by Justice Givan and secured by Justice Myra Selby.

Re-Applications

Although I predicted in this post that several of the 33 unsuccessful applicants from 2010 would likely reapply, only three did: finalists Judge Robyn Moberly and Mr. Karl Mulvaney as well as Judge Cynthia Ayers, an applicant who did not advance to the second round of interviews. Les Shively was a finalist for the 2007 Court of Appeals vacancy for which Judge Elaine Brown was appointed.

Gender Diversity

Although women comprised slighted more than half of the applicants in 2010 (19/34), women are slightly under half of the applicant pool for this vacancy (7/15).

Geographic Diversity

A whopping two-thirds of the applicants are from Indianapolis, and three of the remaining five are from Southern Indiana (Shively from Evansville, Schultz from Columbus, Granger from Floyd County) and two from Northern Indiana (Trent from Lafayette, Pagano from Lake County).

Judicial and Other Backgrounds

Five of the applicants are currently trial judges and another (Judge Bradford) previously served as a trial judge and now serves on the Indiana Court of Appeals. Jane Seigel is executive director of the Indiana Judicial Center.
Five of the applicants are currently in private practice: Mr. Mulvaney, Mr. O’Bryan, Ms. Reeder, Mr. Shively, and Ms. Trent.

Mr. Massa is executive director of the Criminal Justice Institute, Ms. McMath is a full-time appellate public defender, and Mr. Schultz is Executive Director of the Louisville and Southern Indiana Bridges Authority.

The Non-Elephant(s) in the Room

Although the Indiana Constitution provides for merit selection without regard to political party, the vast majority of applicants and nearly all finalists have been of the Governor’s political party. At least one applicant for this vacancy is a Democrat and one previously ran for judge as an Independent.

Future Chief Justice?

The Commission will send three names to the Governor for one appointment as a justice on the Court. Soon after that selection the Commission will then consider which of the justices to name Chief Justice. The newly appointed justice may well apply for that position, and some of these applicants are likely interested in and would be well-qualified for the position.

Here are the 15 applicants, with the links we could find this evening. Next week the candidates' applications and photos will be available:

Posted by Marcia Oddi on Friday, January 27, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on the Supreme Court 2012 - More on: Here is the just released list of applicants for the vacancy

Posted by Marcia Oddi on Friday, January 27, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - More on: Supreme Court to hear legislative fines/seizure appeal

Updating this entry from earlier this afternoon, here is the Supreme Court order filed today granting emergency transfer in Berry v. Crawford, re garnishment of certain Democratic legislators' pay by the House of Representatives to pay fines.

[More] Here is the AG's statement.

Posted by Marcia Oddi on Friday, January 27, 2012
Posted to Ind. Trial Ct. Decisions

Vacancy on the Supreme Court 2012 - Here is the just released list of applicants for the vacancy

Hon. Robert R. Altice, Jr., Marion Superior Court, Criminal Division 2
Hon. Cynthia J. Ayers, Marion Superior Court, Civil Division 4
Hon. Cale J. Bradford, Indiana Court of Appeals
Hon. Maria D. Granger, Floyd Superior Court 3
Mr. Mark S. Massa, Indianapolis
Ms. Patricia C. McMath, Indianapolis
Hon. Robyn L. Moberly, Marion Superior Court, Civil Division 5
Mr. Karl L. Mulvaney, Indianapolis
Mr. Rory O’Bryan, Indianapolis
Hon. Michael N. Pagano, Lake Superior Court, County Division 3
Ms. Mary K. Reeder, Indianapolis
Mr. Steven R. Schultz, Columbus
Ms. Jane A. Seigel, Indianapolis
Mr. Les C. Shively, Evansville
Ms. Rebecca A. Trent, West Lafayette

Posted by Marcia Oddi on Friday, January 27, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - Supreme Court to hear legislative fines/seizure appeal

Posted by Marcia Oddi on Friday, January 27, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Still more on: A new pilot project allowing web cameras in court rooms to be announced [Updated]

Updating yesterday's ILB entry, the pilot project will involve:

... a pilot project for video and audio coverage via webcam of certain trial court proceedings in Lake County. The Times of Northwest Indiana has authorization to webcast proceedings in Lake Circuit Court, Lake Superior Court Civil Division 2 and Lake Superior Court Civil Division 6.
That from a news release today from the Supreme Court. Here is the Court's order, headed "In Re Pilot Project for Webcasting Lake County Circuit and Superior Divisions 2 and 6."

[Updated] The Indianapolis Star now has a brief story, outlining some of the limitations.

Posted by Marcia Oddi on Friday, January 27, 2012
Posted to Indiana Courts

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

For publication opinions today (3):

In Robert Holland, A Concerned Citizen for the Redevelopment of Gary v. Richard Steele, Barbara Steele, First Midwest Bank, As Successor Trustee By Way of Merger to Bank Calumet, N.A., et al., a 19-page opinion involving an appellant pro se, Judge Bailey concludes:

Holland has not demonstrated an abuse of discretion by the trial court with respect to his motion for a default judgment or the Bank’s motion for a continuance. The trial court properly denied Holland summary judgment on his quiet title claim, and properly granted summary judgment to the Bank on its trespass and slander of title claims. The trial court properly found that Holland had filed a frivolous lawsuit, and that the Bank was entitled to attorney’s fees. The amount of attorney’s fees awarded was within the trial court’s discretion. Finally, we decline to award appellate attorney’s fees.
In City of Indianapolis v. Rhodora Earl, a 7-page opinion in an interlocutory appeal relating to a police chase, Judge Darden writes:
Issue. Whether the trial court erred in denying the City's motion claiming that it was entitled to summary judgment under the law enforcement immunity provision of the Indiana Tort Claims Act. * * *

In the present case, like in Garman, the injured party was struck by a vehicle operated by a fleeing suspect. Under the reasoning of Quakenbush, Patrick, and Garman, Indiana Code section 34-13-3-3 does not act as blanket immunity, and the issue of whether Officer Harmon acted “with due regard for the safety of all persons” is one for the trier of fact to decide after taking into consideration the totality of the facts. Thus, the trial court was correct in denying the City's motion for summary judgment.

The City attempts to avoid the aforementioned cases by recasting the issue as whether Officer Harmon was negligent in initiating the chase. As is apparent from Garman, the issue of the propriety of the chase begins but does not end with the initiation thereof. As the facts of Garmanimply, an officer's operation of his vehicle during a chase may violate Indiana Code section 9-21-1-8(d)(1) when the officer continues pursuit under circumstances where a reasonable officer, who observes the dangerous activities of the fleeing driver, would have called off the chase. Affirmed.

Bradley Bradford v. State of Indiana

NFP civil opinions today (3):

Indianapolis Education Association and President Elden Wolting v. Indianapolis Public Schools (NFP)

In the Matter of the Term. of the Parent-Child Rel. of J.S. and A.S.; R.S. and Ja.S. v. Indiana Dept. of Child Services (NFP)

In the Matter of L.L., (CHINS), K.R. S. (Mother) v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (2):

Justin L. Hargrove v. State of Indiana (NFP)

Brett Zagorac v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 27, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - "Bill seeks to resolve local car dealer’s suit"

Back in the day, Senator Bob Garton would have disallowed these bills ...

Niki Kelly reports today in the Fort Wayne Journal Gazette in a story that begins:

The Indiana legislature is stepping in to decide a dispute between two Fort Wayne car dealers by retroactively changing a law to halt a pending lawsuit.

House Bill 1171, authored by Rep. Phil GiaQuinta, D-Fort Wayne, passed out of the House Commerce Committee 8-3 on Thursday. It now moves to the full House for consideration.

Most committee members felt a law restricting where auto dealerships could move was unnecessary and limiting competition.

But a few didn’t like the idea of changing state law in the middle of a legal challenge.

The battle was termed by some as David vs. Goliath – DeHaven’s Summit City Chevrolet vs. Kelley Chevrolet on East State Boulevard.

More:
David Bailey, attorney for Summit City, said the legislature would be pulling the rug out from under his client in the middle of a game just because one side is better connected than another.

“Should the legislature referee a dispute between two car dealers in Fort Wayne?” he asked.

GiaQuinta responded by saying: “We make laws. We change laws. That’s what we do.” * * *

A similar bill is moving in the Senate. Senate Bill 388 is authored by Sen. Tom Wyss, R-Fort Wayne.

Posted by Marcia Oddi on Friday, January 27, 2012
Posted to Indiana Law

Ind. Law - More on: "Hunting preserves: Legislative efforts in the past focused on grandfathering the existing preserves only, but this bill goes further to open the industry to new operators"

Updating this ILB entry from Jan. 25th, quoting Niki Kelly's story in the Fort Wayne Journal Gazette, today the same paper has a long editorial that begins:

Why are some state legislators trying to legalize canned hunting in Indiana when most states are working hard to eliminate the repulsive practice?

“It’s all about greed,” said Gene Hopkins, president of the Indiana Sportsmen’s Roundtable.

House Bill 1265, which passed out of the Natural Resources Committee on Tuesday, would make it legal to hunt farm-raised cervidea – deer and elk – confined within a fence. Unlike previous proposals, the bill goes far beyond grandfathering in the four captive hunting facilities already operating in Indiana; it would encourage new operators to open more canned hunting operations in the state.

“I think it’s sad that we’ve got to visit this issue over and over when we’ve got so many more important things we should be working on,” Hopkins said. “This is really, truly a dangerous bill.”

More from the editorial:
Owners of the confined hunting operations likely took the opportunity to revisit the issue this year because of the significant number of new legislators who are unfamiliar with the issue’s history or are ignorant of the research and study that show that legalizing captive hunting is a bad idea.

“I studied it for over a year,” said Hopkins, who served on the Citizens Advisory Council for Captive Cervidaes, which was formed by the DNR after a high-fence operator filed a lawsuit against the state in 2005. “I’m an IT guy. I’m a data guy. I’m not an emotional guy. And the data is real clear on this. This is not good.”

Hunting deer in confined areas violates the hunting ethic of fair chase.

“What’s right about shooting a deer or elk behind a 200-acre fence?” Hopkins asked. “These are not wild animals. They are raised on farms, bottle-fed. They don’t have any idea how to hide from hunters. I’m a hunter. I’ve been a hunter all my life and I’ve fought for the rights of hunters for 30 years. This is not hunting.” * * *

“Whether you hunt or not, I don’t care what your beliefs are, this is wrong,” Hopkins said. “People need to get ahold of their legislators and tell them to vote no on this. No compromises, no amendments, just no.”

The bill will be eligible for 2nd reading Monday.

Posted by Marcia Oddi on Friday, January 27, 2012
Posted to Indiana Law

Ind. Decisions - "Both sides, which sued each other in 2010, had small victories in orders issued Wednesday"

Updating this ILB entry from Jan. 25th, which quoted the FSSA's characterization of the rulings, the IndyStar has a brief, seemingly balanced story today, although the ILB still has not seen the actual rulings:

A Marion County judge has ruled on some of the issues in a legal battle over the state's canceled welfare-modernization contract with IBM.

Both sides, which sued each other in 2010, had small victories in orders issued Wednesday by Marion Superior Court Judge David Dreyer.

Dreyer ruled that the state will have to pay IBM $40 million in subcontractor assignment fees and capped the damages the state can seek at $125 million. The state had asked for at least $437 million.

But Dreyer declined to grant summary judgment in favor of IBM regarding its request for $43 million in deferred fees and its request for the state to return computers and equipment used in the project.

Those issues, along with others, will be resolved during a trial that's scheduled to begin Feb. 27.

Meanwhile, the Indiana Supreme Court will decide whether Gov. Mitch Daniels has to provide a deposition. Dreyer said that Daniels must provide a deposition, but the state appealed. The Supreme Court has scheduled a hearing Feb. 13 to hear oral arguments.

Posted by Marcia Oddi on Friday, January 27, 2012
Posted to Ind. Trial Ct. Decisions

Law - "Warning: If the Email You Just Read Isn't for You, Don't Read It "

The ILB has had several brief entries on email disclaimers (see here and here).

Today the WSJ ($$) has an article on the topic, written by Dionne Searcey and Michael Rothfeld. A few quotes:

Email disclaimers, those wordy notices at the end of emails from lawyers, bankers, analysts, consultants, publicists, tax advisers and even government employees, have become ubiquitous—so much so that many recipients, and even senders, are questioning their purpose.

"Who reads them?" asks Bruce Nyman, a former county official from Long Island, N. Y., who has grown tired of the many disclaimers attached to messages in his inbox. He says they are like the modern-day mattress tag. "And has anyone ever been arrested for tearing them off?" * * *

Several years ago, William L. Wilson sent a memo to other partners in his South Bend, Ind., law firm insisting they include a standard confidentiality disclaimer on every email. "As I began to think about it further I realized no one reads these things," said Mr. Wilson, who practices civil law. "I don't read them." He has removed the disclaimer from his emails.

Posted by Marcia Oddi on Friday, January 27, 2012
Posted to General Law Related

Thursday, January 26, 2012

Ind. Courts - More on: A new pilot project allowing web cameras in court rooms to be announced

That is the headline to this ILB entry from earlier today announcing a press conference tomorrow by Chief Justice Shepard.

"Ind. Courts - Cameras in trial courtrooms pilot hits snag," is the heading to this ILB entry from Feb. 16, 2007 that links to a number of related entries, including this one from March 14, 2007.

Now it is five years later. During that period, web cameras and live streaming have become ubiquitous...

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Indiana Courts

Ind. Law - More on: Right of publicity law changes proposed

Updating this ILB entry from January 16th on HB 1133, check out this story today by Eriq Gardner in The Hollywood Reporter, headed "Why the Marilyn Monroe Estate Paid $3 Million For Photos of the Film Legend (Analysis): As a result, an important lawsuit impacting the publicity rights of deceased celebrities could be near an end." Here is a sample:

[Sam] Shaw was a legendary photographer who captured some of the biggest stars from old Hollywood, including Marlon Brando, Audrey Hepburn and Elizabeth Taylor. His images of Monroe were the most iconic, and after the photographer's death, his family began to license the images around, including to Target for T-shirts and to one documentary producer who was making a film entitled Marilyn's Man about the star's first husband.

Then CMG Worldwide, an Indiana-based intellectual property management firm, entered the picture. The firm had previously lobbied its home state to pass laws that generously conferred post-mortem publicity rights to deceased celebrities. When Monroe's photographer later sought to exploit Monroe images, CMG demanded a cut.

That set off litigation -- first in Indiana, where CMG demanded an injunction, and then in New York, where Shaw Family Archives argued Monroe was a citizen at the time of her death. Importantly, New York law wasn't as generous to dead celebrities as Indiana law.

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Indiana Law

Vacancy on Supreme Court 2012 - Applications due tomorrow

The deadline for applications for the vacancy on the state’s highest court is tomorrow, Friday, Jan. 27th.

Kathryn Dolan, Indiana Supreme Court Public Information Officer will distribute a press release with the list of candidates for the Supreme Court vacancy Friday, Jan 27th sometime after 4:30 pm.

Watch the ILB for the names.

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - A new pilot project allowing web cameras in court rooms to be announced

Notice just received:

Indiana Chief Justice Randall T. Shepard will announce details of a pilot project allowing web cameras in several Indiana trial courts. Details regarding the project will be outlined during tomorrow’s press conference. Information will also be posted at courts.in.gov after the press conference.
Announcement will be tomorrow at 11 am.

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Indiana Courts

Ind. Gov't. - "Historic electric chair gets preserved"

Indiana's electric chair, now retired, "was based on sketches of Ohio’s electric chair. It was created using parts of Indiana’s original hangman scaffold."

So reports WISH TV 8, which adds: it is "now being shown as part of the Indiana Department of Correction’s Reflections of Pride: The History of the IDOC Museum."

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Indiana Government

Courts - Studies of tweets by federal court jurors

Check out this post and the links from Joe Palazzolo of WSJ Law Blog.

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Courts in general

Ind. Law - More on: Your law firm or court plans for Superbowl week?

On January 1st I posted an entry (with a few responses) asking about Superbowl plans of local courts and law firms - would you be open or closed?

Now that we are getting down to the wire, things are sounding much more serious.

It looks like ALL THE METERS south of Michigan will be bagged for at least part of this time. Maybe now, as yesterday I saw that the meters already were bagged on East Washington at East Street and all the way west.

Streets will be closed and I find the lists of restrictions almost impenetrable.

And then there is information like this, that few people will know until it is too late and they are locked in a gigantic rush hour traffic snarl...

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Indiana Law

Courts - In NY, "A Judgeship With Prestige, and, Oh, What a Grand Room"

William Glaberson's story today in the NY Times begins with a photo of "The chambers occupied by the top judge of the appeals court in Brooklyn," then continues:

Sure, being the top judge of the appeals court in Brooklyn is impressive. It is one of the most powerful judicial seats in the state.

But check out the office that goes with the job, with its 15-foot ceilings, antique furnishings and off-white porcelain private bathroom. Not to mention the crimson damask curtains with gold fringe, framing the 11-foot windows with their tranquil view of brownstone Brooklyn. * * *

There is no list of the most luxurious chambers in the state judicial system, of course, but many judges agree that the top job in the Brooklyn court comes with the best chambers of the more than 1,200 in the state system.

Fascinating. And I wonder if there are any chambers in Indiana that might match up.

But as I read the story wondered -- "What is "the appeals court in Brooklyn?" Where does it fit into the NY system, where "supreme courts" are not supreme, but trial courts?

I found this good diagram of the New York court structure on the National Council of State Courts site. Look at the left box in the second row of boxes. It says, "Appellate Divisions of Supreme Court. 56 justices sit in panels in 4 departments." The link in the box leads to a list of counties served by each of the 4 divisions. The Brooklyn court is in the 2nd division.

Also useful is this "Overview of the Appellate Division," which explains:

The Supreme Court, of which the Appellate Division is a part, is New York State's principal trial court, with a branch in each of the State's 62 counties.

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Courts in general

Environment - "Jobs vs. environment debate dominates hearing on coal gasification plant"

That is the headline to Thomas B. Langhorne's story in the Evansville Courier & Press on last evening's public hearing in Rockport on the air permit for the proposed coal gasification plant. It begins:

ROCKPORT, Ind. — Stern warnings of environmental harm clashed with appeals to create badly needed jobs Wednesday night at a public hearing about a proposed coal gasification plant in Spencer County.

The Indiana Department of Environmental Management public meeting and hearing attracted about 200 people to South Spencer High School.

At issue: whether the state agency's Office of Air Quality ultimately will issue an air permit for the proposed $2.65 billion plant, which would be located about 30 miles east of Evansville. The facility is intended and designed to convert Illinois Basin coal and petroleum coke into pipeline-quality substitute natural gas and liquefied carbon dioxide. The developer is Rockport-based Indiana Gasification, LLC; a subsidiary of the New York investment firm Leucadia National Corp.

Here is a list of some of the earlier ILB entries on the project.

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Environment

Courts - More on: "WICHITA, Kan. -- U.S. Senior District Judge Wesley Brown has died at age 104"

Updating yesterday's ILB entry, the NY Times has an obituary today written by A.G. Sulzberger. Some quotes:

Judge Wesley E. Brown, whose work ethic and a hale constitution kept him climbing the stairs to his fourth-floor courtroom past his 100th birthday, making him the oldest active federal judge in the nation’s history, died on Monday in Wichita, Kan. He was 104. * * *

As his health declined in recent months, he reduced his caseload. But Judge Brown, who was the subject of a Page 1 profile in The New York Times in 2010, was still working from bed in recent weeks, telling colleagues he just wanted to get back to his courtroom.

“He was driven by his work,” said Mike Lahey, who was a longtime law clerk for the judge. “He loved it, and it was his reason for living at the end.”

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)

For publication opinions today (1):

In Jeff Reeves v. Citizens Financial Services, a 14-page opinion, Judge Crone writes:

Jeff Reeves sustained a back injury while working for Citizens Financial Services (“Citizens Financial”). Over the course of several years, Citizens Financial paid for a variety of medical treatments, but Reeves still experienced pain in his back that radiated into his left leg. After an evidentiary hearing, a single hearing member of the Worker’s Compensation Board (“the Board”) determined that Reeves had reached maximum medical improvement (“MMI”), had a permanent partial impairment (“PPI”) of five percent, and was not entitled to ongoing palliative care. Reeves appealed to the Board, which adopted the decision of the single hearing member. Reeves now appeals the Board’s decision, arguing that the Board erroneously concluded that he was not entitled to additional palliative care. Because Reeves has failed to identify what type of care he should receive and because the undisputed evidence does not show that palliative care limits the extent of his impairment, we affirm.
NFP civil opinions today (6):

Associated Estates Realty Corporation v. Angela Mason (NFP)

Meridian S.E.T., LLC v. Auditor of Marion County, Assessor of Marion County, and City of Indianapolis/Marion County (NFP)

Diana Bible v. St. Vincent Hospital (NFP)

James Patrick Flinn v. Courtney Sue Flinn and James Erick Flinn (NFP)

Ruth Dishman, Personal Rep. of the Estate of Julie A. Etchison v. Community Hospitals of Indiana, Inc., Medcheck Anderson, Troy Abbott, M.C., and Stephen Robertson (NFP)

Lawrence Peterson and Fredrick Edmond v. Bruce Lemmon, et al. (NFP)

NFP criminal opinions today (8):

Duane R. Tackett v. State of Indiana (NFP)

Richard H. Edwards v. State of Indiana (NFP)

Moustapha Barry v. State of Indiana (NFP)

Casey Jackson v. State of Indiana (NFP)

Dairius Redding v. State of Indiana (NFP)

Angelina M. Sanders v. State of Indiana (NFP)

Stacey Sills v. State of Indiana (NFP)

Jonathan Paugh v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: "Hairdressers may have killed bill that would eliminate licensing"

Updating this ILB entry from yesterday, here is more about the Regulated Occupations Evaluation Committee. As noted here yesterday, it is a statutory committee (IC 25-1-16), created in 2010 by PL 84 (SEA 356, authored by Sen. Delph). Sec. 10 provides:

The committee shall establish a schedule to review and evaluate each regulated occupation. Each regulated occupation must be reviewed and evaluated at least every seven (7) years.
This is NOT a legislative study committee, but a statutory committee with NO legislative members. From the committee's webpage:
Indiana’s Regulated Occupations Evaluation Committee (ROEC) was established by the Indiana General Assembly to assess the efficiency and effectiveness of all professional licenses regulated by the Indiana Professional Licensing Agency (IPLA).
Here is information on the seven committee members. According to IC 25-1-16-11, the committee also has a staff.

The committee continues to meet. Here is the agenda for its Jan. 25, 2012 meeting, which gives a good idea of the agencies that will be covered in the bill to be introduced in 2013. They include real estate, auctioneer, plumbing, to name a few.

Here is the committee's "Assessment framework for occupational regulation", which begins:

In order to guide its work, the ROEC has prepared a conceptual framework aimed at answering two questions: (1) Should the state of Indiana be involved in any form of regulation (e.g., licensing, certification or registration) of a particular occupation and, if so (2) What questions should be asked to determine whether a regulatory program is accomplishing its public purpose in a cost-effective manner or needs to be buttressed or reformed in some specific way.

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Indiana Law

Ind. Law - Senate Committee backs RU-486 limit

Here is the AP story.

The story does not include the bill number.

Sadly, there appears to be no way to access yesterday's online committee calendars ...

Looking at the list of Senate bills on abortion, I've found a SB 72 and a SB 125 and a SB 282 and a SB 340 and a SB 341.

I'm guessing this story is about SB 282, abortion inducing drugs.

The story reports:

The Senate health committee voted 5-4 in support of the bill that requires that a doctor examine a woman in person before giving her RU-486, provide written information about the physical risks of abortion and to schedule a follow-up ultrasound for her two weeks later. Doctors who don’t follow those steps could face a misdemeanor criminal charge if the proposal becomes law.
The story concludes:
Republican Sen. Vaneta Becker of Evansville, who joined the committee’s three Democrats in voting against the bill, said she believed the proposal wrongly intervened in the doctor-patient relationship and didn’t think the proposal improved patient safety.

The abortion pill proposal follows the Republican-dominated Legislature’s passage last year of a law aimed at cutting off Medicaid funding to Planned Parenthood because it provides abortions and imposed tighter abortion restrictions. A federal appeals court is considering whether to lift a federal judge’s order that was issued in June that blocked the funding cutoff.

ILB: Last year, abortion clinics. This year, RU-486. Next year, birth control pills and devices?

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Indiana Law

Ind. Law - "Senate panel votes to let schools teach creationism"

Dan Carden has the brief story in the NWI Times. It begins:

INDIANAPOLIS | An Indiana Senate committee on Wednesday endorsed teaching creationism in public schools, despite pleas from scientists and religious leaders to keep religion out of science classrooms.

Senate Bill 89 allows school corporations to authorize "the teaching of various theories concerning the origin of life" and specifically mentions "creation science" as one such theory.

State Sen. Scott Schneider, R-Indianapolis, who voted for the measure, said if there are many theories about life's origins, students should be taught all of them.

The bill passed out of committee without change, 8-2. The tally sheet showing the committee members' votes is not yet available.

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Indiana Law

Ind. Law - More on: "Hunting preserves: Legislative efforts in the past focused on grandfathering the existing preserves only, but this bill goes further to open the industry to new operators"

Following up on yesterday's ILB entry, Nick Schneider, Assistant Editor of the Greene County Daily World, has this long story today. A few quotes:

A bill that would legitimize four existing captive hunting sites in the state passed out of the Indiana House Natural Resources committee Tuesday.

The bill, sponsored by District 62 State Rep. Matt Ubelhor (R-Bloomfield), cleared the committee by an 8-4 vote.

House Bill 1265 would reverse state regulations on high-fenced hunting and end a lawsuit that started in 2005. * * *

"I was very happy to get it out of the committee," Rep. Ubelhor said. "It's never made it out of committee before." * * *

Legislative efforts in the past focused on grandfathering the existing preserves only, but this bill goes further to open the industry to new operators, Rep. Ubelhor said.

Posted by Marcia Oddi on Thursday, January 26, 2012
Posted to Indiana Law

Wednesday, January 25, 2012

Ind. Decisions - "Court agrees with state’s position in key issues in IBM case"

That is the heading of this press release issued this evening by Neal Moore of the Ind. Family & Social Services Administration:

(INDIANAPOLIS Jan. 25, 2012) - The Marion Superior Court made summary judgment rulings today on a number of issues in the State's lawsuit against IBM based on IBM's failure to live up to its promises under the contract to modernize Indiana's welfare benefits system. In the most important decisions, the court made these rulings:
  • Rejected IBM's claim that it is entitled to over $43 million in "deferred fees" even if the state had cause to terminate the contract because of IBM's poor performance. The Court agreed with the state that if IBM's poor performance justified terminating the contract, then IBM is not entitled to any "deferred fees" under the contract.

  • Rejected IBM's argument that its poor performance was excused because Indiana experienced an economic downturn and flooding after the contract was signed. The Court said these reasons were simply not valid under the contract, and that evidence about flooding or economic downturn was legally irrelevant.

  • Rejected IBM's argument that it was entitled to return of computers and other equipment used during the contract, which IBM has claimed are worth some $9.3 million.

  • The state may be able recover up to $125 million in damages, based on the contract provisions, and that subcontractor assignment fees may be owed to IBM pending determination of whether IBM was terminated for cause and determination of the State's damages at trial.
The rulings mean that a number of claims IBM has made since the beginning of the lawsuit have been eliminated from the case. “This clears the way for the state to pursue recovery at trial for the damages caused by IBM's substandard performance,” said Peter Rusthoven, an attorney representing the state.
The ILB has not seen a copy of the ruling itself.

This is the latest in a long list of ILB entries on the suit between the State of Indiana and IBM relating to the FSSA welfare outsourcing contract. Earlier today, the ILB posted the Supreme Court's announcement that it had scheduled oral argument on the interlocutory appeal relating to Gov. Daniels' testimony.

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Indiana Judge Punishes Jury Dodger With Shame"

See the story about Lake Criminal Court Judge Thomas Stefaniak Jr. in the Chicago blog, Chicagoist.

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Indiana Courts

Ind. Law - Still more on "Chilling CAFO lawsuits"

Updating this ILB entry from Jan. 23, HB 1091 has been moved back to Second Reading for amendment, by a floor motion just adopted. It will now not appear on the 2nd Reading calendar until Friday.

According to Speaker Bosma's announcement, it has to do with constitutional questions raised on 2nd reading by Rep. DeLaney.

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Indiana Law

Courts - "Illinois trials may soon be televised: State Supreme Court to scrap camera ban, allow pilot program"

That is the headline to this story today by By Ryan Haggerty of the Chicago Tribune. The long story begins:

The Illinois Supreme Court will announce Tuesday that it will allow media cameras to record proceedings in the state's circuit courts for the first time, a court spokesman said Monday.

The pilot program allowing the media to use both still and video cameras to record civil and criminal proceedings will be enacted "on an experimental and limited basis," said Joseph Tybor, spokesman for the state Supreme Court.

The media has been allowed to record proceedings in the state Supreme Court and the Illinois Appellate Court since 1983, but until now has not been allowed to record proceedings in the state's 23 circuit courts.

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Courts in general

Courts - More on Jones v. State

Tom Goldstein, founder of SCOTUSblog, has a long entry today on the SCOTUS decision this week in Jones v. State, and "bad" press coverage. A sample:

In general, I think that the coverage of Jones is bad and leaves a very misleading impression of the decision. None of the pieces correctly characterizes the ruling and its limits.

The USA Today, Los Angeles Times, Associated Press, and Reuters all incorrectly say (including in their headlines) that Jones requires a warrant. The New York Times and Wall Street Journal do not say that in terms (seemingly ducking the issue on purpose, which is not helpful given its importance), but they nonetheless leave the reader with the impression that a warrant is required: the Times indicates that “the authorities remain free to seek warrants,” while the WSJ reports that the government acted unconstitutionally in this case when it acted “without a valid search warrant.” The body of the Washington Post story says that “Scalia did not hold that a warrant was always necessary,” which is closer to correct but leaves the misimpression that he held that it is sometimes necessary; moreover, the editor created a headline wrongly saying a warrant is required.

With respect to the long-term versus short-term distinction, none of the pieces draws it clearly. The Reuters piece does correctly state that to the extent that Jones addresses monitoring, it considers “an extended period of time.” By contrast, the USA Today incorrectly says categorically that “police cannot use” GPS devices without warrants.

The upshot of the coverage of Jones is that the American public now seriously misunderstands the law on a significant issue. The inevitable impression left by at least most of these pieces is that the police always have to get a warrant from a judge to use GPS tracking. That is simply not true. That question is at best unresolved, and at worst it may prove to be completely incorrect when the courts later addressing monitoring over the course of a short time.

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Courts in general

Stage Collapse - "Bill would double fair victim's aid"

House Ways and Means Chairman Jeff Espich said the Ways and Means Committee will debate the proposal (House Bill 1376, currently a "vehicle" bill) on Wednesday and vote on it on Thursday or Friday, according to this story in today's Indianapolis Star by Mary Beth Schneider. More:


Daniels has asked the legislature to give more help to the families of the seven people killed in the stage collapse and the 58 people injured, some permanently impaired. State liability was capped at $5 million, and this bill would double that.

“No amount of money makes (what happened) correct,” Espich said. “You just can’t make it right. I think what we can do is to make sure that all of these individuals receive a maximum amount of money allowable under law in terms of the individual cap.”

This bill would allow for the families of those who died to receive an additional $400,000, up from the $300,000 they have received from the state so far.

“You need $2.8 million to make those people whole, and whole is not fixed. It’s just the best you can do under current law,” Espich said.

Those injured, he said, filed $2.8 million in claims, and received $1.8 million for their hospital and other bills. This would add more than a million dollars for their reimbursement. In all, those injured and the estates of those killed would get about $4 million, with an additional million set aside for other state fair claims the state may face.

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Stage Collapse

Ind. Courts - Long-time judge Charles C. Daugherty dies at 89

Here is the obituary from today's Indianapolis Star.

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Indiana Courts

Courts - "WICHITA, Kan. -- U.S. Senior District Judge Wesley Brown has died at age 104"

Ron Sylvester of McClatchy Newspapers has the story in the Kansas City Star. The long, interesting story includes:

"I hope to be remembered as a good judge, and not just an old judge," Brown told The Eagle newspaper last year, sitting in his office.

Brown used to shake his head when he heard people talk about "activist judges" or push for the election of judges.

Brown said he took his lifetime appointment seriously, because of its important role in the separation of powers outlined in the U.S. Constitution.

"And I hope the courts can keep their independence and not be subservient to the pressures of other branches of government, or other special interests. It is this separation of powers that is vital to our democracy," Brown said on his 100th birthday. "It's what makes America what it is."

Federal judgeships are life-time appointments.

In Indiana Supreme Court and Court of Appeals judges by statute must retire upon reaching the age of 75. In 2011 the General Assembly passed SEA 463, which eliminated any mandatory retirement age for trial court judges.

For background, see this Feb. 9, 2011 ILB entry.

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Natalie E. Murrell v. State of Indiana , a 9-page opinion, Sr. Judge Barteau writes:

Murrell raises three issues, which we restate as: I. Whether the finder of fact erred by rejecting Murrell’s defense of duress. II. Whether the penalty for Murrell’s Class C felony conviction violates Article I, Section 16 of the Indiana Constitution (“the proportionality clause”). III. Whether the case should be remanded to clarify Murrell’s sentence. * * *

At trial, Murrell conceded that she brought the contraband to the prison to give to Davis. She asserted a defense of duress, claiming that persons unknown to her had called her and threatened her with harm if she did not deliver the contraband to Davis. The trial court determined that Murrell was guilty and subsequently sentenced her to three years on the Class C felony conviction and one year on the Class A misdemeanor conviction, with all but one hundred and eighty days suspended to probation. This appeal followed. * * *

In this case, neither the trial court’s oral sentencing statement nor the written sentencing order identifies any grounds that would support the imposition of consecutive sentences. In the absence of such grounds, the trial court’s oral statement ordering Murrell to serve concurrent sentences is more appropriate. Consequently, we remand with instructions for the trial court to correct its written sentencing order to impose concurrent sentences upon Murrell’s convictions.

In Timothy Long v. State of Indiana, a 7-page opinion, Sr. Judge Sharpnack writes:
Timothy Long appeals his sentence for Class A misdemeanor operating a vehicle while intoxicated, Ind. Code § 9-30-5-2(b) (2001), and being a habitual substance offender, Ind. Code § 35-50-2-10 (2006). We affirm.

Long raises one issue, which we restate as: whether the trial judge erred by rejecting the sentence imposed by the master commissioner who presided at the guilty plea hearing. * * *

On the facts before us, Master Commissioner Hall presided at Long’s guilty plea hearing. Because she did not preside at a criminal trial, she did not have the authority to enter a final judgment on Long’s sentence. Judge Brown therefore did not err by rejecting Master Commissioner Hall’s sentence and imposing her own sentence.

NFP civil opinions today (7):

Kevin Walsh v. Chris Sweeney Construction, Inc. (NFP)

Michael D. Perkinson, Jr. v. Kay Char Perkinson (NFP)

Jennifer Hutchens v. Gregory Sausaman (NFP)

Kenneth W. Gibbs v. Indiana Parole Board (NFP)

Ellettsville Holdings, LLC v. Garnett D. Kinser (NFP)

In the Matter of the Term. of the Parent-Child Rel. of K.V., and Q.M.S. v. Indiana Dept. of Child Services (NFP)

Dwayne Burnett v. Review Board of the Indiana Dept. of Workforce Development and Opportunity Enterprises, Inc. (NFP)

NFP criminal opinions today (6):

Anthony Earl Coakley v. State of Indiana (NFP)

Jeremiah L. Hancock v. State of Indiana (NFP)

Ryan N. Myers v. State of Indiana (NFP)

Jameson Curry v. State of Indiana (NFP)

James Roby v. State of Indiana (NFP)

Anthony P. Wamue v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Plaintiff’s counsel needlessly complicated the Court’s task of summarizing the relevant facts."

That is a quote from the beginning of a footnote on p. 2 of an 11/17/11 opinion by federal Judge Tanya Walton Pratt. The entire footnote:

Plaintiff’s counsel needlessly complicated the Court’s task of summarizing the relevant facts. Local Rule 56.1(b) requires non-movants to include a “Statement of Material Facts in Dispute” that responds to the movant’s asserted material facts “by identifying the potentially determinative facts and factual disputes which the nonmoving party contends demonstrate that there is a dispute of fact precluding summary judgment.” L.R. 56.1(b). Rather than identifying potential factual disputes in a concise fashion, Plaintiff’s counsel unfurled an 18-page narrative that is replete with argument and a 15-page surreply that is no better as it contains a great deal of immaterial information. (Dkt. 73 at 13) (“Perhaps Defendants would prefer the Court to require Plaintiff to use the unduly prolix and passive voice that most grammarians find to be an anathema to the Plain English movement that started in the Michigan Bar some 25 years ago.”); (Dkt. 73 at 7) (“There is no need to root around like a pig searching for a mushroom, only to use a mouse to click on the relevant portion of a deposition transcript.”). And, for reasons that remain unclear, the brief devotes a paragraph to explaining the 15th century origin of the phrase “cat’s paw,” a legal doctrine that is inapplicable to the present matter. (Dkt. 73 at 2-3). Accordingly, the Court had unnecessary difficulty excising the arguments from the facts when piecing together the background section.
The opinion was highlighted in the Legal Writing Prof Blog on Jan. 23. The ABA Journal today picks it up and adds context.

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - State of Indiana v. International Business Machines Corp. is now scheduled for oral argument for Monday, February 13 at 9:00 a.m.

Here is the Supreme Court's order, filed Jan. 9, 2012, granting the emergency petition to accept jurisdiction of the interlocutory appeal pursuant to Rule 56(A). From the Court:

Summary: In 2010, the State of Indiana sued International Business Machines Corp (IBM) for millions of dollars it had paid to the company before their contract was cancelled in 2009. IBM responded by filing a counter-suit of breach of contract, totaling $100 million. The trial court ruled that Governor Mitch Daniels cannot be excused from testifying about his knowledge of the contract with IBM. The case bypassed the Appellate Court and was granted transfer to the Indiana Supreme Court in January 2012.

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Indiana Courts

Ind. Law - "Hunting preserves: Legislative efforts in the past focused on grandfathering the existing preserves only, but this bill goes further to open the industry to new operators"

Back again. The ILB has a very lengthy list of earlier entries on issues involving hunting preserves and canned hunting in Indiana.

Niki Kelly covers that history well in her long, comprehensive story today in the Fort Wayne Journal Gazette, headed "Captive hunting bill passes committee." A few quotes:

INDIANAPOLIS – Hunting preserves in which people pay thousands to shoot deer behind high fences would be legal under a bill that passed 8-4 Tuesday out of the House Natural Resources Committee.

House Bill 1265 would legitimize four existing captive hunting sites in the state – including one in Kosciusko County – as well as open up the practice for new operators following specific guidelines. * * *

The bill would reverse state regulations on high-fenced hunting and end a languishing lawsuit that started in 2005 and is just part of the issue’s complicated past.

The controversy began to fester in the late 1990s when a few facilities sprang up under a game breeder’s license. The owners charged thousands of dollars for hunters to come in and shoot prized deer bred specifically for large antlers.

Many outdoors groups opposed the operations from the beginning, saying no Indiana law specifically authorized the activity.

But preserve owners argued nothing explicitly prohibited it either.

And Bruce received documentation from former Department of Natural Resources’ officials that the operations were legal. * * *

In August 2005, then-DNR Director Kyle Hupfer announced after extensive study and hearings that the existing shooting preserves were not allowed under current law. To remove confusion, he sought and passed administrative rules outlawing the preserves, and Gov. Mitch Daniels signed them.

Preserve owners sought an injunction to keep operating. At the time, there were about a dozen facilities but that has dropped to four partly because the owners are unable to plan long term and invest money in the operations, said Rep. Matt Ubelhor, R-Linton.

Dozens of supporters were at the Statehouse on Tuesday. The supporters largely consisted of those who run hundreds of deer and elk farms in the state who specifically grow deer to sell to shooting preserves.

They argued the farms and preserves are an economic development tool, bringing money from out-of-state hunters. * * *

Those against high-fenced hunting said Tuesday that simply having a fence violates the standards of fair chase because the animal can’t get away.

“It’s just plain unethical to shoot tame deer in a pen and call it sportsmanship,” said Chuck Bauer, a member of the Izaak Walton League of America.

Doug Allman, of the Indiana Deer Hunters Association, also testified against the bill, saying there are plenty of hunting opportunities available in the state without shooting hand-raised animals behind a fence.

Legislative efforts in the past focused on grandfathering the existing preserves only, but this bill goes further to open the industry to new operators. * * *

DNR officials kept silent on the bill Tuesday, though it is a 180-degree turn from prior leadership that fought to end the practice.

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Indiana Law

Ind. Law - Status of massive bill to eliminate commissions, boards, and committees, including environmental boards

HB 1002, about which the ILB had a lengthy entry on Jan. 21, 2012, has now been reprinted so that one can read the committee changes in context. Here is the Jan. 23 printing. The bill is not yet, however, on the House 2nd reading calendar.

Meanwhile, SB 130, which would abolish the separate APCB, WPCB, and SWMB, and create a new "rules" board, passed the Senate on Jan. 23, by a vote of 50-0. See this Jan. 21st ILB entry for background.

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Environment | Indiana Law

Ind. Law - "Hairdressers may have killed bill that would eliminate licensing"

Maureen Hayden, CNHI Statehouse Bureau, reports today on the status of HB 1006. Here is the bill digest:

Regulated occupations. Provides that optometrists may prescribe, dispense, and administer controlled substances. Repeals the law governing the following professions, including their professional licensing boards and licenses: (1) Beauty culture (cosmetologists and barbers). (2) Commission on dietetic registration and licensure of dietitians. (3) Hearing aid dealers. (4) Private investigator firms. (5) Security guards. Makes conforming and technical changes.
From the long story:
INDIANAPOLIS — A throng of union protesters haven’t been able to stop a controversial labor bill in the Indiana Statehouse, but a force of hairdressers may have killed a piece of legislation they loathe.

On Tuesday, a hearing on a bill to eliminate licensing requirements for cosmetologists, barbers and a handful of other occupations was abruptly canceled after an outpouring of protest. The bill is expected to be pulled from the session or significantly amended.INDIANAPOLIS — A throng of union protesters haven’t been able to stop a controversial labor bill in the Indiana Statehouse, but a force of hairdressers may have killed a piece of legislation they loathe.

On Tuesday, a hearing on a bill to eliminate licensing requirements for cosmetologists, barbers and a handful of other occupations was abruptly canceled after an outpouring of protest. The bill is expected to be pulled from the session or significantly amended. * * *

[T]he bill would have made Indiana the only state in the nation without licensing requirements for hairdressers and barbers.

The bill came out of a legislative study committee that recommended the elimination of the licensing boards as a way to reduce unnecessary government regulation. * * *

The bill [Rep. David Wolkins] carried was recommended by the Regulated Occupations Evaluation Committee, a legislative study committee created to look at regulations that cover the state’s licensed professions and occupations. The committee is chaired by John Graham, dean of the Indiana University School of Public and Environmental Affairs.

The committee found that licensing requirements for some occupations were excessive and weren’t needed to protect the public.

Haire said legislators didn’t understand the bill’s implications. “I’d like see what they’d say if one of them showed up with scabies or lice after going to an unlicensed hairdresser,” Haire said. “There are things they could do to improve licensing, but this isn’t it.”

ILB: The Regulated Occupations Evaluation Committee is a statutory committee (IC 25-1-16), created in 2010 by PL 84 (SEA 356, authored by Sen. Delph). Sec. 10 provides:
The committee shall establish a schedule to review and evaluate each regulated occupation. Each regulated occupation must be reviewed and evaluated at least every seven (7) years.
In short, we can expect to see more of these bills.

The committee chair, John D. Graham, SPEA Dean, is an academic knowledgeable in risk analysis.

Posted by Marcia Oddi on Wednesday, January 25, 2012
Posted to Indiana Law

Tuesday, January 24, 2012

Courts - "Why the GPS-Tracking Case is Just the Beginning for the Supreme Court"

See Nicholas J. Wagoner's Circuit Splits Blog post today under that heading. A sample:

It's worth noting that when the Court first surveyed the privacy landscape some forty years ago in Katz v. U.S., telephones were connected by wires and global positioning required a map and compass. Today, however, modern technology allows us to connect by "texting," "tweeting," or "facebooking." And finding our precise latitude and longitude on the globe is a matter of simply turning on our cell phones.

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Courts in general

Ind. Courts - Still more on: Indianapolis attorney allegedly stole about $600,000

"Lawyer Charged With Cheating Alzheimer's Patient" is the headline to a WRTV 6 story today.

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Indiana Courts

Ind. Gov't. - Interesting Twitter exchange between reporters just now

Mary Beth Schneider Just blocked by state trooper from going down hallway to my office. Had to run up a floor, take elevator up then back down. Really!

Guess is that #INGov Daniels was coming down hall too. But geesh! I remember when he and I could cordially share a hallway.

Niki Kelly @marybschneider Nowadays they make sure he can't possibly interact with Hoosiers in this building.

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Indiana Government

Law - Prison as a fact of life

For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones.
That is a quote from a new article by Adam Gopnik in The New Yorker, highlighted in this post today in the Sentencing Law blog.

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to General Law Related

Ind. Gov't. - More on: First hand bad experience with new parking meters!

Updating this ILB entry from yesterday, here is attorney Paul Ogden's new post.

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Indiana Government

Environment - "Still no new rules on odor, scum in lakes: IDEM is moving slowly, and the Legislature may not move at all"

A lengthy story today in the Muncie Star-Press by Seth Slabaugh. Some quotes:

MUNCIE -- The Indiana Department of Environmental Management is finally taking steps to address phosphorus pollution that has caused taste and odor compounds in drinking water as well as human health risks in Indiana's lakes and reservoirs.

However, it appears the state Legislature will again turn its back on the phosphorus problem, the primary cause of lake eutrophication and resulting algal blooms.

"It is not likely that House Bill 1032 will get a hearing," Casey Arqawi, press secretary for state Rep. Dick Dodge, R-Pleasant Lake, said on Monday. * * *

The bill, which would place restrictions on the application of lawn fertilizer containing phosphorous, was originally placed in the House Committee on Natural Resources, but then it got transferred to the Committee on Environmental Affairs.

In late August 2011, state officials found high levels of blue-green algae, also known as cyanobacteria, at eight of 13 public swimming beaches sampled, including Potato Creek State Park, Chain O'Lakes State Park and Raccoon State Recreation Area. In addition, sampling by Indiana University-Purdue University at Indianapolis found high levels of cyanobacteria in Geist, Morse, Eagle Creek and Patoka reservoirs.

Central Indiana residents may recall a blue-green algal bloom in Prairie Creek Reservoir during the spring of 2010. The event produced remarkably large concentrations of taste and odor compounds called MIB and geosmin that affected 700,000 drinking water customers in Muncie, Indianapolis and other communities. * * *

Bruno Pigott, an assistant commissioner at the Indiana Department of Natural Resources (IDEM), said the agency was making rules to establish numeric standards for phosphorus in lakes. He said the rule-making process would take 18 months.

That was 18 months ago. What is the status of the rule-making today?

"We are in the midst of adopting new eutrophication criteria for natural lakes and reservoirs, including total phosphorus and chlorophyll a," Shivi Selvaratnam, a technical water quality specialist at IDEM, said in a recent interview. "There are only a handful of technical folks working on rule making at the agency. I was working on different rule-making that had a higher priority for the agency. Now that that rule-making is nearing completion, I can focus on nutrient rule making."

The higher priority for the agency was establishing "anti-degradation" standards to preserve the quality of water that is cleaner than minimum standards, she said.

ILB: Those anti-degradation rules have been scheduled for a Water Pollution Control Board that has been canceled several times now - i.e. Jan. 11, 2012 and Feb. 8, 2012. And the Board packet containing the draft rule has now been removed from the WPCB meetings site. Here is the long history.

Here is a long list of earlier ILB entries on phosphorus.

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Environment

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

For publication opinions today (3):

Violet M. Lockett v. Peggy Hoskins a/k/a Peggy J. Smith - "In the absence of valid legal conclusions justifying an award of attorney’s fees, the trial court’s grant of fees to Hoskins was an abuse of discretion and must be reversed. Furthermore, because this appeal is resolved in favor of Lockett, Hoskins’ request for appellate attorney’s fees is without merit and must be denied."

In Jessica Bowling v. State of Indiana , a 12-page opinion, Judge Crone writes:

In 2006, Jessica Bowling agreed to plead guilty to class A felony neglect of a dependent, and the State agreed to a cap of forty years on the executed portion of her sentence. Along with the plea agreement, Bowling signed a written advisement and waiver of rights that contained the following provision: “By pleading guilty you have agreed to waive your right to appeal your sentence so long as the Judge sentences you within the terms of your plea agreement.” The trial court sentenced Bowling to forty years, executed.

In 2011, Bowling filed a petition for permission to file a belated notice of appeal pursuant to Indiana Post-Conviction Rule 2. The State argued that Bowling waived her right to appeal her sentence pursuant to the aforementioned provision. The trial court agreed with the State and denied Bowling's petition. Bowling appeals, arguing that the waiver should not be enforced because it is a misstatement of law. We conclude that the waiver is valid and therefore affirm the trial court.

In James R. Johnson v. State of Indiana, a 10-page opinion, Judge Vaidik writes:
James R. Johnson appeals the post-conviction court’s denial of his petition for post-conviction relief. Because the record shows that Johnson pled guilty to Class A felony child molesting at the same time he maintained his innocence, the trial court erred in accepting Johnson’s guilty plea to the Class A felony. Accordingly, the post-conviction court erred in denying Johnson’s petition for post-conviction relief. We therefore reverse and remand for further proceedings.

NFP civil opinions today (1):

In the Matter of the Term. of the Parent-Child Rel. of: J.W. & C.W. and M.W. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (3):

Jeremiah Brown v. State of Indiana (NFP)

Cordell G. Gage v. State of Indiana (NFP)

Terry York v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from the Supreme Court

In Antoine Hill v. State of Indiana, a 17-page, 4-1 opinion, Justice David writes:

The present case involves several petitions under Indiana’s Post-Conviction Rules. Indiana Post-Conviction Rule 1 permits, among other things, a defendant to file a petition challenging the performance of his trial, appellate, or post-conviction counsel. Indiana Post-Conviction Rule 2 permits, among other things, a defendant to petition the trial court for permission to pursue a belated direct appeal.

Here, the defendant’s counsel filed a Post-Conviction Rule 2 petition, seeking permission to file a belated notice of appeal. The trial court denied permission, and counsel did not timely appeal this denial. Subsequently, defendant, through different counsel, filed a Post-Conviction Rule 1 petition, alleging that his Post-Conviction Rule 2 counsel was ineffective for failing to timely appeal the trial court’s denial of permission to file a belated notice of appeal.

We hold that the appropriate standard for judging the performance of Post-Conviction Rule 2 counsel is the standard set forth in Baum v. State, 533 N.E.2d 1200 (Ind. 1989). We further hold that Post-Conviction Rule 2 counsel in this case did not violate Baum because she represented the defendant in a procedurally fair setting which resulted in a judgment of the court. * * *

Conclusion. We conclude that the Baum standard, and not the Strickland standard, is appropriate for evaluating the performance of P-C.R. 2 counsel. Because P-C.R. 2 counsel Reed did not deprive Hill of a procedurally fair setting, Reed did not violate Baum. On that basis, we affirm the decision of the trial court denying Hill’s P-C.R. 1 petition.

Shepard, C.J., and Dickson, J., concur.

Sullivan, J., concurs in result with separate opinion.

Rucker, J., dissents with separate opinion.

[Justice Sullivan's concurring opinion begins, at p. 4] I write separately because I believe that Strickland v. Washington, 466 U.S. 668 (1984), articulates the correct standard for measuring whether counsel rendered ineffective assistance as a matter of constitutional law when counsel failed to appeal the denial of Hill’s request to file a belated direct appeal.

[Justice Rucker's one-paragraph dissent on p. 17 concludes] But at the end of the day all Hill seeks is appellate review of his fifty-two year sentence, something he has thus far been denied. Our rules should not be applied so rigorously or our case law dissected so finely as to deny a defendant in Hill’s position the opportunity to make his best effort in challenging the sentence imposed. As this Court has observed, “‘[a]lthough our procedural rules are extremely important, it must be kept in mind that they are merely a means for achieving the ultimate end of orderly and speedy justice. We must examine our technical rules closely when it appears that invoking them would defeat justice; otherwise we become slaves to the technicalities themselves and they acquire the position of being the ends instead of the means.’” Meredith v. State, 679 N.E.2d 1309, 1311 (Ind. 1997) (quoting Am. States Ins. Co. v. State, 283 N.E.2d 529, 531 (Ind. 1972)). Applying this principle to the case before us, I join my colleagues on the Court of Appeals and conclude that Hill should be allowed to appeal the denial of his petition to file a belated direct appeal. Therefore I respectfully dissent.

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Ind. Tech's new law school building location announced

Recall that Indiana Tech is starting a new law school in Indiana. Today, an announcement that begins:

Fort Wayne, Ind. – Indiana Tech officials announced on Tuesday that the university will build a 70,000-square-foot facility on its main campus to house its law school.

The university’s plan to open a law school in 2013 was announced in May 2011. Since then, officials have been weighing the pros and cons of an on-campus location vs. a downtown Fort Wayne location.

“We seriously considered several possibilities but ultimately decided that constructing a new facility on our campus is the best way to serve our future law students,” said Indiana Tech President Arthur E. Snyder.

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Indiana Law

Courts - Retroactivity of SORNA

The ILB has had a number of entries, including this one from June 1, 2010, on the question of the retroactivity of SORNA, the federal Sex Offender Registration and Notification Act. Yesterday, in Reynolds (ILB entry here), the SCOTUS decided, according to this brief AP story:

The Supreme Court says rules requiring sex offenders to update their registration when crossing state lines don’t automatically apply to those who committed their crimes before the law was passed.

The high court ruled 7-2 that Billy Joe Reynolds can challenge his arrest for violating the Sex Offender Registration and Notification Act.

This post by Prof. Doug Berman at Sentencing Law Blog explains:
[V]ia a 7-2 ruling in Reynolds v. US, the Justices provide an explanation about when and to whom SORNA applies to folks who committed sex offense prior to the act.

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Courts in general

Courts - More on "Supreme Court rules warrant needed for GPS tracking"

Listen to Nina Totenberg's four and a half minute report on yesterday's ruling in Jones here, via NPR. Or read the transcript. A sample:

The bottom line is that at least for now, the court's decision is a narrow one and leaves open some of the most vexing privacy issues in the digital age.

Smartphones, for instance, can disclose an individual's location unless the internal locator devices are turned off, and email contacts are similarly recorded by providers. But today's ruling provided no definitive answers as to whether the government must obtain a warrant for access to either.

"It leaves open how the Fourth Amendment apples to cellular phones," says George Washington University law professor Orin Kerr, an expert in the field of technology and privacy. "It leaves out how the Fourth Amendment applies to email. It leaves open all these questions of high-tech surveillance that just don't happen to involve a trespass onto somebody's property."

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Courts in general

Ind. Law - "Senate votes to restore right to resist police entry into home"

SB 1 passed the Indiana Senate yesterday, 45-5. Here is Dan Carden's story in the NWI Times.

Here is Niki Kelly's story in the FWJG. And Chris Sikich's story in the IndyStar.

Here is a list of some of the earlier ILB entries on the decision in Barnes v. State.

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Indiana Law

Ind. Courts - Indiana judges in the news

Breaking story from South Bend Tribune: "St. Joseph County Probate Court Judge Peter Nemeth, 70, announced this morning he is not seeking re-election."

From the Evansville C&P: "Local attorney challenges juvenile court judge." The story begins:

Evansville attorney Barry Blackard on Monday announced that he is a candidate for Vanderburgh County Juvenile Court judge.

Blackard will challenge Judge Brett Niemeier, a two-term incumbent, for the job.

Juvenile Court is a division of Vanderburgh Superior Court. Superior Court judges in Vanderburgh County are elected to six-year terms in nonpartisan races. He is the first challenger to file for Superior Court this year.

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Indiana Courts

Ind. Law - More on "Indiana Senate approves 'right to work,' House Democrats leave floor"

Updating the ILB entry from yesterday evening, here are stories today covering yesterday's House and Senate actions.

"Senate approves labor bill: Right-to-work legislation now moves to the House," is the headline to Niki Kelly's story in the Fort Wayne Journal Gazette. The paper also has an editorial today on the legislative activities surrounding consideration of the RTW bill.

"Senate OKs its 'right to work' bill: Republicans defeat Democratic amendments in House; final vote still to come," is the headline to the Indianapolis Star story today by Chris Sikich and Mary Beth Schneider.

"New Democratic walkout leaves Right to Work in question," is the headline to Eric Bradner's story this morning in the Evansville Courier & Press. Here is a quote:

Four and a half hours after the debate started, Democrats walked out. The series of events that led to the move were less than clear.

As Rep. Win Moses, D-Fort Wayne, stood up to offer his statewide referendum amendment, another House Democrat – Rep. John Bartlett of Indianapolis – indicated he had one to propose, too. Bosma told Bartlett he could go after Moses.

After about two hours of debating the statewide referendum, it was rejected, 39-59, on party lines.

Bosma then asked twice if House members wanted to offer any more amendments. For six seconds – a long time for this step, when lawmakers are usually ready to line up one after another with amendments – Democrats were silent.

At the same time Bosma pounded his gavel, Rep. Terry Goodin, D-Austin, stood up to try to prod Bosma to consider the amendment from Bartlett, who had evidently not indicated he was ready to offer it when Bosma asked. Bosma said it was too late.

Democrats immediately stood up and left the House floor, and went into a behind-closed-doors caucus meeting. Meanwhile, Bosma went into his office to review video of what had transpired. He emerged half an hour later saying he believed he had given Democrats ample opportunity to offer more amendments, and they hadn't taken it.

He said he was ready to move on to other bills on the House calendar, and that he was through with amendments on "right to work." He said the bill would be eligible for a final vote as soon as Tuesday.

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Indiana Law

Ind. Courts - "Former Martinsville city court clerk charged in missing money case"

The long story today ($$), reported by Keith Rhoades, in the Bloomington Herald-Times begins:

MARTINSVILLE — After a nine-month investigation, a special prosecutor has filed charges against former Martinsville City Court Clerk Cathy Neal.

According to court records filed Monday in Morgan County Superior Court III, Neal is charged with failure to deposit public funds, a class D felony, and conversion, a class A misdemeanor. Judge Jane Craney found there to be probable cause for the case to be filed against Neal.

Later in the story:
According to the [state board of accounts] audit, on March 23, Neal went to Ralph Foley and Peden, who are partners in a law firm where Neal was employed as a full-time employee, and admitted she had taken money from city court.

Posted by Marcia Oddi on Tuesday, January 24, 2012
Posted to Indiana Courts

Monday, January 23, 2012

Ind. Law - "Indiana Senate approves 'right to work,' House Democrats leave floor"

Here is Mary Beth Schneider and Chris Sikich's first take at reporting today's House and Senate activities on the RTW bill for the IndyStar. (If you want the total play-by-play, click on their names for the minute-by-minute tweets. Or click on the Star link for the story.)

Posted by Marcia Oddi on Monday, January 23, 2012
Posted to Indiana Law

About this blog - ILB looking for a reporter-type

The ILB is looking for a reporter-type individual, retired or with free time, interested in contributing to a short-term project, unpaid but with good visibility. ILB addict preferred.

Posted by Marcia Oddi on Monday, January 23, 2012
Posted to About the Indiana Law Blog

Ind. Law - What is a "referenda"?

House members debating the RTW referendum keep referring to it as the "referenda."

The AP Style Guide: referendum, referendums

Posted by Marcia Oddi on Monday, January 23, 2012
Posted to Indiana Law

Ind. Courts - More on: "Tippecanoe judge issues cellphone, camera ban for upcoming trial"

Updating this ILB entry from Jan. 5, 2012, Sophia Voravong reports today in a story headed: "Judges pull back on Tippecanoe courthouse cellphone ban." Some quotes:

Visitors to the Tippecanoe County Courthouse no longer have to shut off their cellphones upon entering the building.

On Thursday, during their monthly meeting, Tippecanoe County's seven judges agreed on a new policy that would only require cellphones and recording devices be off inside courtrooms - as already mandated by Indiana law. * * *

[Judge Michael Morrissey] said they'll still be able to have temporary mandates, such as banning cellphone use outside the jury room during a trial, if security concerns arise.

This is much different than, for instance, the St. Joe and Allen County bans -- a new St. Joesph County rule took effect this year, prohibiting "the public from bringing any electronic device -- including cell phones, iPads, iPods -- inside St. Joseph County courthouses."

Posted by Marcia Oddi on Monday, January 23, 2012
Posted to Indiana Courts

Courts - "Supreme Court rules warrant needed for GPS tracking"

More on this morning's SCOTUS ruling in Jones.

Joan Biskupic, USA TODAY

Lyle Dennison, SCOTUSblog

Adam Liptak, NY Times

Robert Barnes, Washington Post

Orin Kerr, The Volokh Conspiracy, here and here. Here is the Kerr LJ article referenced.

Posted by Marcia Oddi on Monday, January 23, 2012
Posted to Courts in general

Ind. Gov't. - "Historic Indianapolis statue damaged at opening of Super Bowl exhibit"

Ann Keil has the detailed story - in the South Bend Tribune. A quote: "A heavy piece of machinery apparently backed into one of two limestone eagle sculptures that date back to the early 1900's." There is a photo of what remains of the statute, plus a video.

Posted by Marcia Oddi on Monday, January 23, 2012
Posted to Indiana Government

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

Recall this ILB entry from August 13, 2011. The local firm also issued this press release at the time.

This afternoon Fox 59 has a story headed"Lawsuits filed by witnesses of State Fair tragedy dropped." Some quotes:

The dropped lawsuit was filed by individuals who said they witnessed the tragedy.

Angela Fisher, who was part of the class action suit, said she was traumatized from watching her boyfriend jump into action to help the victims.


Now, the attorneys who filed the suit are withdrawing it, due to lack of evidence to support the claim.

When it was filed, the lawsuit drew outrage from other attorneys and critics who said this was a piggyback lawsuit, cheapening the claims of the real victims of the Indiana State Fair tragedy.

Posted by Marcia Oddi on Monday, January 23, 2012
Posted to Stage Collapse

Ind. Decisions - More on our Supreme Court's unauthorized practice decision in United Financial systems

In State ex rel. Indiana State Bar Association v. United Financial Systems Corporation, et al., a one-page order filed Jan. 20, 2012, the Court adopts the Commissioner's Restitutionary Order as its own. For background, start with this ILB entry from Dec. 22, 2010.

Posted by Marcia Oddi on Monday, January 23, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending January 20, 2012

[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 Friday, January 20, 2012. It is one page (and 10 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, January 23, 2012
Posted to Indiana Transfer Lists

Ind. Law - RTW on both House and Senate calendars today

Posted by Marcia Oddi on Monday, January 23, 2012
Posted to Indiana Government

Courts - Notable SCOTUS opinions this morning

Reynolds v. United States (SCOTUSblog case page here). From this morning's SCOTUSblog "live blog":

Amy: We have the second opinion in Reynolds v. US, the sex offender case. The opinion is by Justice Breyer, but delivered by the Chief Justice. The vote is seven to two, reversing the decision below. The Court rules that the federal sex offender law does not require those who committed their offenses before the enactment of the law to register before the Attorney General validly specifies that the registration requirements do apply to them.
US v. Jones (case page here):
Amy: The decision is unanimous, but there are two concurring opinions. Attaching a GPS device to a vehicle and its use to monitor the vehicle's movements do constitute a search.

Tom: Five members of the Court importantly do *not* resolve the question whether the search was reasonable. That could be a major limitation on the decision.
MORE COMING

Posted by Marcia Oddi on Monday, January 23, 2012
Posted to Courts in general

Ind. Gov't. - More on: First hand bad experience with new parking meters!

On Dec. 22, 2011 I posted an entry relating a bad experience with the new parking system in front of Bazbeaux on Massachusetts Avenue. A friend, also an attorney, who was driving, received a ticket even though there was much time left on the paybox. I wrote in the Dec. entry: "What are your options? There does not seem to be a reasonable choice other than to simply pay the $20 for the unwarranted ticket!"

Well, my friend paid the ticket, but that did not end the matter. Here are copies of her correspondence, beginning with the letter accompanying the payment for the ticket:

December 24, 2011

Citation Collection Service
P.O. Box 660310
Indianapolis, IN 46266-0310

Re: Parking meter violation

Enclosed please find my payment of $20 for the parking violation issued on December 22, 2011. I am paying the fine although I believe it was unjustly issued, and potentially fraudulent. I understand there have been many complaints about the new parking system and long lines to contest violations.

On December 22, I was parked at spot 1316 on Massachusetts Avenue near Bazbeaux Pizza. I put 6 quarters into the meter before going into the restaurant; when I returned in just about an hour, there was a ticket. As the enclosed photo shows, when I returned to my car at 12:47 pm, the time remaining on the meter for spot 1316 was 31 minutes. The ticket shows that it was issued at 11:50 am. I would have just put the money in the meter at approximately that time before going to have lunch. There is also a conflict on the face of the violation which shows that the “paybox expired at 9:02 pm 21 Dec 2011.” How can that be, if I had 31 minutes remaining when I returned to my car at 12:47 pm? It appears that the pay box is incorrect, at least, and potentially fraudulent.

I am paying the ticket because I would rather spend my holidays with my family than contesting a ticket. However, the next time I am considering where to eat and where to park, I will avoid using the new parking system, or simply stay out of downtown Indianapolis all together.

Here is the second letter, now in the mail:
January 22, 2012

Citation Collection Service
P.O. Box 68963
Indianapolis, IN 46266-0963

Re: Parking meter violation

I received a letter dated January 18, 2012 stating that I had not yet payed Citation # DV03219. Enclosed please find a copy of the cancelled check for $20; my check was cashed on December 30, 2011.

I wrote a letter with my payment explaining why the citation was incorrect (I had over 30 minutes left on the meter when I the citation was issued). The inefficiency of the new parking meters, and the accounting for the payment of the citations is frustrating. I have avoided using parking meters since receiving the ticket. The followup letter has only confirmed my decision. I certainly hope this doesn’t happen to our Superbowl visitors.

ILB: I expect we will be hearing much more about the ticketing system with all the visitors coming to town.

[Updated] Within minutes of posting the above, I received this note from another Indianapolis attorney and blogger, Paul Ogden:

I wrote about it on Facebook and intend to write about it on my blog as soon as I can get the picture off my phone, but I too got a parking ticket downtown when I had time remaining – 23 minutes – on the meter. I took a picture showing myself having more time left.

Posted by Marcia Oddi on Monday, January 23, 2012
Posted to Indiana Government

Ind. Law - More on "Chilling CAFO lawsuits"

Updating this ILB entry from Jan. 16, 2012, about HB 1091, which currently is on third reading in the House, the Indianapolis Star has an editorial today against the bill, "under which agricultural operations, such as large confined livestock complexes, would be guaranteed payment of their legal fees if found to be victims of nuisance lawsuits." More:

"To single out one business for this sort of protection sends a disturbingly chilling signal to anyone considering a (farming practices) lawsuit," she says.

State Rep. William Friend, R-Macy, the bill's author and a large pork producer, insists legal rights would not be infringed. Yet the courts already have discretion to award legal fees to those found to have been sued frivolously. This bill would lift that discretion and force them to impose the penalties.

It also must be noted that this single business already has special protection from nuisance lawsuits under the state Right to Farm Act.

The costs, benefits and regulation of this large and controversial industry are subject to continual debate. Closing the courthouse door to opponents, even indirectly, has no place in that political process and no warrant under our tradition of free speech.

State government said as much more than a decade ago when it banned so-called SLAPP (Strategic Lawsuit Against Public Participation) legal actions that have been taken by businesses such as landfills and power plants against remonstrators. Pre-empting these protests by onerous lawsuits has been found by Indiana and most other states to be unconstitutional and plain unfair. HB 1091 carries the same foul aroma.

Posted by Marcia Oddi on Monday, January 23, 2012
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?

This would be a wonderful time for you to become an ILB supporter for 2012! Please think about supporting the ILB!

From Sunday, January 22, 2012:

From Saturday, January 21, 2012:

From late Friday afternoon, January 20, 2012:

Posted by Marcia Oddi on Monday, January 23, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/23/12):

Thursday, January 26th

Next week's oral arguments before the Supreme Court (week of 1/30/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/23/12):

Thursday, January 25th

Next week's oral arguments before the Court of Appeals (week of 1/30/12):

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 Monday, January 23, 2012
Posted to Upcoming Oral Arguments

Sunday, January 22, 2012

Ind. Law - Recap of last Friday and the Right to Work bills; plus an observation

Updating this ILB entry from Friday, Jan. 20th, where a newly worded amendment calling for a binding public referendum amendment was explained to the House by Rep. Bauer before the House adjourned for the weekend --the Senate then convened and considered its own version of the RTW bill, SB 269, on 2nd reading.

A number of amendments were submitted by the Senate Democrats and discussed/debated, all were voted down. The final amendment they proposed was #13, identical to the one discussed in the House earlier. Here is the Democrats' recap of the debate, with video.

Here is Mary Beth Schneider's IndyStar report on Friday's actions. Some quotes:

The four-day boycott by House Democrats is expected to end Monday as they get what they say they want: a vote on whether to allow the public to ultimately decide whether Indiana adopts the controversial "right to work" law.

That same referendum proposal was rejected Friday by the Indiana Senate, with only one Republican joining 13 Democrats in supporting it. * * *

The measure is expected to come up for a final vote in the Senate as early as Monday. That is same day Democrats are expected to return to the House, ending their strike and allowing the House to finally debate changes to the bill.

Not even House Minority Leader B. Patrick Bauer, however, thinks the House outcome will be any different from that in the Senate, with the referendum rejected.

But Democrats want the Republicans on record for being for or against the public having the final say on whether Indiana becomes the 23rd state with a "right to work" law.

Under it, companies and unions are barred from negotiating a contract that requires nonmembers to pay fees for the representation the unions must give all employees of a bargaining unit.

House Democrats began their walkout Tuesday after questions about the constitutionality of a referendum were raised. Those constitutional hurdles were raised Friday in the Senate by Sen. Brandt Hershman, R-Buck Creek, who noted that Indiana's Constitution says no law shall be enacted except by the legislature.

Sen. Karen Tallian, the Portage attorney who offered the amendment seeking the referendum, said Democrats have resolved those issues.

The "right to work" law would, if passed, take effect Nov. 5 but expire Nov. 7 unless it is approved by voters in the Nov. 6 general election. That way, she said, the legislature would both enact it and set the standards for it to remain in law.

Tallian said Indiana has been debating "right to work" for decades. The state enacted the law in 1957, repealed it in 1965 and has been bickering about it off and on ever since.

"It's time to put this question to the people," Tallian said. * * *

With passage assured in the Senate, the attention now turns back to the House.

Friday morning, House Speaker Brian Bosma, R-Indianapolis, guaranteed to Bauer, the minority leader, that Democrats could offer an amendment seeking a referendum, with no procedural roadblocks thrown up to stop them. But he wants Democrats in their seats Monday to vote on it.

"If you want to make it high noon Monday," said Bauer, "we will be here."

Some quotes from Niki Kelly's story in the Jan. 21st Fort Wayne Journal Gazette:
Sen. Brandt Hershman, R-Lafayette, said he thinks Indiana’s Constitution prohibits laws from being contingent on a vote of the people.

Democrats tried to get around the issue by having the right-to-work law become law Nov. 5 and then automatically expire Nov. 7 if voters don’t approve it in an Election Day referendum.

Only two nonbinding statewide referendums have been found in historical research – one in 1947 regarding a salary bonus for veterans and one in 1956 regarding time zones.

Sen. John Broden, D-South Bend, said a referendum would provide a full-fledged debate where everyone can weigh in. Then he quoted Gov. Mitch Daniels, who pushed for school construction referendums during Indiana’s property tax reform.

“Trust the people, give them the facts and let them vote,” he said.

With numbers against the Democrats – Republicans control the Senate 37-13 and the House 60-40 – the minority caucuses have focused on getting a public referendum.

But a legal opinion surfaced earlier this week questioning its constitutionality, which halted work in the House. Democrats there have allegedly spent days trying to craft an amendment calling for a public vote that wouldn’t be illegal.

House Democratic Leader Patrick Bauer filed an identical amendment Friday that failed in the Senate. Bauer reiterated that he wants the constitutional cloud removed before his members will return to debate and vote.

Republican House Speaker Brian Bosma said it isn’t his job to determine constitutionality and only promised an up-or-down vote on the amendment.

Though Bauer said his caucus would be there at “high noon” Monday to move forward, he was less clear in a later meeting with the press.

He also conceded that even if the referendum language is added to the bill, his members will vote against the legislation.

From Eric Bradner's Sunday column in the Evansville Courier & Press:
INDIANAPOLIS — If they ultimately decide to show up, here's the question Democrats want to debate on the Indiana House floor Monday:

Should lawmakers themselves decide an issue as contentious as right to work without first making it the centerpiece of a campaign cycle, or should voters get a say in the issue through a referendum on November's ballot?

Here's why there's virtually no chance Republicans will let the conversation get framed exactly the way Democrats would like it to:

Unlike neighbor Ohio or prime national example California, Indiana is not a state with a constitution that leaves much room for such a step. Constitutional amendments end up on the ballot, as do local referenda. Not statewide legislative questions, though.

All week long, the Indiana General Assembly was dipping its toes — and at some points wading in waist-deep — to a much broader political science debate about representative versus direct democracy.

That is to say, instead of counting on the lawmakers who are elected to cast votes on key issues, direct democracy puts more decisions squarely in the hands of voters.

One state that relied heavily on direct democracy was Oregon. Their ballot questions got so complicated that it was part of the reason the state switched to voting by mail, instead of in person. That move has actually worked out quite well for Oregon.

The move toward ballot questions brings up another problem: How do you write questions that don't include an element of bias? It's possible, but if referenda became regular, hashing out the language would become the new procedural battleground.

If they really wanted to, lawmakers could find a way to place the right-to-work issue on the November 2012 ballot.

Then, though, they'd have to answer the question that Republican House Speaker Brian Bosma posed Friday: "Where do you stop on other issues?"

ILB observation: The revised language unveiled Friday would have the RTW law go into effect Nov. 5 but expire Nov. 7 unless approved by voters in the Nov. 6 general election via a binding referendum.

Whether this proposed approach runs afoul of the Indiana Constitution is a matter for the courts. But if it were to be found valid, a Pandora's box of problems might issue.

For instance, couldn't this same approach be taken with existing laws, laws already in effect? It seems like a short next step ...

An example: "All existing Indiana environmental laws (i.e. Title 13) will expire Nov. 7 unless approved by the voters in a binding referendum to be part of the Nov. 6th ballot."

To wrap up this Friday recap, I highly recommend a 3:45 minute audio interview on the Indy Politics website. The interview is with respected legislator Ed DeLaney, a House Democrat. I've listened to it several times. It is thoughtful, moving, and saddening.

Posted by Marcia Oddi on Sunday, January 22, 2012
Posted to Indiana Law

Law - "The high costs of sex offender civil commitment program in Washington state"

Sentencing Law Blog today highlights a Seattle Times series:

Seattle Times has a very interesting set of pieces today discussing the intricate procedures and high (runaway?) costs involved in the operation of Washington's now-two-decades-old civil commitment program for sex offenders. This paper and its reporters merit kudos for conducting this in-depth investigation of the longest-running sex offender civil commitment program, and it will be interesting to see how policy-makers respond to a report that seems likely to prompt a political firestorm.
ILB: About 20 states, not including Indiana, have laws providing for civil commitment laws for sex offenders who have finished their sentences. The ILB has had a number of entries on the civil commitment approach. See, e.g., this ILB entry from June 23, 2010, and this one from Dec. 27, 2010.

Posted by Marcia Oddi on Sunday, January 22, 2012
Posted to General Law Related

Courts - “We let it go too easily to say we need total confidentiality to help the kids,” he said. “I really disagree with that. I think transparency protects the kids.”

A Dec. 2, 2011 Louisville Courier Journal story by Deborah Yetter was headed "Courts - "Kentucky officials agree to produce records in fatal child abuse, neglect cases"." Hre again are some quotes:

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.

Well, they were back, last week. Yetter has a story dated Jan. 20, 2012, headed "Judge fines state over child-abuse records, orders legal fees paid to newspapers: Cabinet ordered to pay legal fees after withholding public records." Some quotes:
FRANKFORT, KY. — In a sharply critical decision, a judge has ordered a state agency to pay $16,550 in fines and $56,663 in legal costs to three newspapers for illegally withholding public records involving child-abuse deaths and serious injuries.

Franklin Circuit Judge Phillip Shepherd also rejected efforts by the Cabinet for Health and Family Services to heavily redact, or remove, information from such documents. He said the cabinet was continuing its “efforts to blanket the operation of the child welfare system under a veil of secrecy.”

“Past experience has demonstrated that the cabinet will apply any privacy exception in the broadest possible manner, giving rise to an inevitable protracted court battle for anyone who seeks to discover the facts surrounding a child fatality or near fatality,” Shepherd said in a ruling issued Thursday. * * *

Jon Fleischaker, a lawyer for The Courier-Journal, said Shepherd has ruled three times in the past two years that the cabinet must disclose information in cases in which a child dies or is seriously injured from abuse and social service officials had prior involvement with the family.

In a separate story, also dated Jan. 20th, Mike Wynn of the LCJ reports:
LEXINGTON, KY. — A state health official argued for privacy in child abuse records Friday, describing it as cornerstone of social work, while representatives from the media called for more transparency to protect children.

The panel discussion — part of the Kentucky Press Association’s winter convention — marked the first open exchange between parties in a two-year legal battle to disclose child-abuse files under the state’s open records law. * * *

But for nearly an hour and a half, Teresa James, acting commissioner of the Department of Community Based Services, defended a state health cabinet’s decision and said case files can often follow families for generations, chronicling intimate and painful details about victims and others peripheral to the case.

“Just as passionate as you are about first amendment rights, I am equally, as a social worker, passionate about people’s confidentiality and right to privacy,” she told the room of about 35 newspaper publishers, editors and journalists.

Another panelist, Jon Fleischaker, an open records expert and attorney for The Courier-Journal, challenged James in the matter.

Fleischaker said the concept of privacy has grown too expansive over the past two decades, and now encompasses any information that people want to hide regardless of whether it fits the traditional definition.

“We let it go too easily to say we need total confidentiality to help the kids,” he said. “I really disagree with that. I think transparency protects the kids.” * * *

Deborah Yetter, a Courier-Journal reporter who wrote about that case and spoke on Friday’s panel, said details in the Dye file played an essential role in attracting public attention to the issue.

“The average Kentuckian … does not have any kind of grasp of the depth and complexity and poverty and misery of these lives and how this cycle has gone on and on,” she said. “That’s why I think it is so important to get the whole file and the complete picture and force readers to see what is going on.”

Posted by Marcia Oddi on Sunday, January 22, 2012
Posted to Indiana Courts

Ind. Law - "Indiana lawmakers consider some laws that are just plain puzzling"

See the story today in the Sunday Indianapolis Star, reported by Chris Sikich. Some quotes:

Sen. Mike Delph, R-Carmel, has a penchant for throwing a potential law against the wall to see what will stick. * * *

[He hopes another of his bills] fosters a committee to study the issue over the summer. He wants to eliminate grand juries, saying prosecutors are elected to make the tough decisions.

He looked back nearly two years ago, when then- Hamilton County Prosecutor Sonia Leerkamp pointed to the findings of a grand jury to defend her decisions to charge four Carmel High School basketball players with misdemeanor rather than felony counts over incidents on a team bus and school locker room.

"There are a lot of reasons why you introduce bills and put things before the public," Delph said. "With some bills, you want to get people to think. With others, you want to make new law. But you can't get a public discussion and debate going unless you throw the issue out there."

ILB: Here is what the Indiana Constitution (always worth checking) has to say on grand juries :
Art. 7, Section 17. Grand Jury. The General Assembly may modify, or abolish, the grand jury system.
(History: As Amended November 3, 1970)
Much more of interest from the long story, including:
Sen. Jim Tomes, R-Wadesville, wants to allow The Lord's Prayer in school. * * *

Tomes would never let his bill get to the point of passage -- saying he wouldn't waste taxpayer money challenging constitutional concerns in court.

"It's not going to get heard," Tomes said, "and I understood that going in. I wanted to bring this up for discussion, because there are a lot of people who say we need prayer in school. People think there must be something lacking in our society" because of high crime rates.

And this:
Reps. Sean Eberhart, R-Shelbyville, and Ralph Foley, R-Martinsville, filed legislation that protects rights of publicity of people who died before July 1, 1994. That raised one question: Who died 18 years ago in their districts south of Indianapolis? Turns out, not anyone in particular.

Foley said state law already protects rights of publicity -- celebrity photos and such -- after that point.

"There is some confusion in the federal courts whether Indiana's law applies to people who died before we passed our statute or whether it only applies to people who died after we passed our statute," Foley said.

ILB: The ILB had an entry on this bill, HB 1133, on Jan. 16th, collecting four earlier ILB entries on this topic, which may throw light on the interests behind the law change.

Posted by Marcia Oddi on Sunday, January 22, 2012
Posted to Indiana Law

Ind. Gov't. - "Could deaths of Indiana children have been prevented? Investigation raises questions about whether Department of Child Services could have done more to protect kids"

The Sunday Indianapolis Star has a front-page report by Tim Evans. Beginning with the names of six children, the long story continues:

Their short, disparate lives are connected by one common thread: the Indiana Department of Child Services.

Before each of these children died last year, concerns about their care and treatment were reported -- repeatedly, in some cases -- to the state agency responsible for investigating allegations of child abuse and neglect.

In some cases, DCS determined the allegations did not merit an investigation. In others, the agency opened investigations but was unable to make contact with the family or found no problems -- case closed. And in two of the deaths, DCS had open cases at the time the children were killed.

But in each case -- and despite evidence of mounting trouble -- DCS ultimately left the children with their parents.

The 2011 fatalities uncovered by The Indianapolis Star raise questions about the quality of the agency's investigations and safety assessments, as well as with the services provided to struggling families.

It is not child deaths alone, however, that suggest lingering problems. There are other troubling indicators that the system is still failing too many Hoosier children:

The rate at which children suffer repeat abuse or neglect within six months of a DCS intervention -- a telling and nationally recognized measure -- remains basically unchanged from 2004 at about 8 percent. The federal government has a target standard of 5.4 percent, which 27 states met in 2010. Twelve states had a higher re-abuse rate than Indiana.

Despite a significant increase in the number of reports made to DCS, the agency is investigating a smaller percentage of the reports it receives -- and it is substantiating a smaller percentage of the cases that are investigated.

Altogether, the issues raise serious questions about the ambitious and costly reform project initiated in 2005 by Gov. Mitch Daniels to fix Indiana's long-troubled child welfare system and protect vulnerable children.

Posted by Marcia Oddi on Sunday, January 22, 2012
Posted to Indiana Government

Saturday, January 21, 2012

Courts - 10th Circuit rules sex offenders have right to libraries

The Chicago Tribune today has a story by Keith Coffman of Reuters. The story begins:

A federal appeals court ruled on Friday that a policy barring registered sex offenders from public libraries in Albuquerque, New Mexico, was unconstitutional, a decision that could have reverberations across the nation.

"The First Amendment includes a fundamental right to receive information," a three-judge panel of the Denver-based 10th U.S. Circuit Court of Appeals wrote.

"By prohibiting registered sex offenders from accessing ... public libraries, the city's ban precludes these individuals from exercising this right in a particular government forum," the court said.

But the panel left open the possibility of allowing restrictions less stringent than an outright ban.

Later in the long story:
Friday's decision could have nationwide implications, as the state of Iowa, three cities in Massachusetts and jurisdictions in North Carolina and Texas all have tried to enact some sort of sex offender library ban, according to an Indiana University law school article. * * *

However, the judges said city officials failed to look at other less restrictive approaches, including designating certain hours for sex offenders, requiring them to check in with library staff or restricting areas of the library that they could use.

Sentencing Law Blog has a post headlined "Tenth Circuit (grudgingly?) upholds ruling striking down Albuquerque ban on sex offenders in libraries" that includes a link to the 44-page opinion, Doe v. City of Albuquerque, No. 10-2102 (10th Cir. Jan. 20, 2012).

The Indiana Law Review article mentioned is a 2011, 38-page article by Jennifer Ekblaw, J.D. Candidate, Indiana University School of Law—Indianapolis, 2011.

Posted by Marcia Oddi on Saturday, January 21, 2012
Posted to Courts in general

Ind. Court - Clark County seeks special property tax; Judge Wentworth hears appeal on property levy

Ben Zion Hershberg has the story in today's Louisville Courier Journal. Some quotes from the beginning of the long, involved story:

Was the Clark County Council’s $2.7 million reduction in property tax collections in 2007 an intentional decision to ease the burden on taxpayers or was it a mistake by elected officials who didn’t understand the impact of their decision?

Deputy Attorney General Lynne Hammer and Clark County Attorney Greg Fifer argued those positions, respectively, Friday, in an Indiana Tax Court hearing in the Madison courthouse.

Clark County’s appeal asks the Tax Court to overturn a Department of Local Government Finance decision in late 2010 to reject a special property tax increase the county requested to solve the budget problems created by the 2007 decision.

“If a public body makes an imprudent or ignorant error, there are limited tools for fixing that” allowed by state law, Fifer argued to Tax Court Judge Martha Wentworth. The tools include a special tax increase like the one the council and Clark County commissioners sought, Fifer argued.

For background, start with this ILB entry from Oct. 11, 2011.

Posted by Marcia Oddi on Saturday, January 21, 2012
Posted to Indiana Courts | Indiana Government

Environment - More on: Bill would abolish all environmental boards, replacing them with a "rules board" on July 1st

Updating this ILB entry from Jan. 16th, the Fort Wayne Journal Gazette published an editorial yesterday headed "Keep IDEM boards." Some quotes from the long editorial:

Significantly, both environmentalists and businesses oppose the idea.

Sen. Beverly Gard, R-Greenfield, recognized as the go-to legislator for environmental issues, authored Senate Bill 130. It seeks to eliminate IDEM’s Air Pollution Control Board, Water Pollution Control Board and Solid Waste Management Board and replace them with a consolidated environmental rules board.

The goal of the legislation is efficiency.

House Bill 1002, authored by Rep. Dave Wolkins, R-Winona Lake, is a much broader bill about consolidating commissions, committees and boards. But it also includes language about consolidating IDEM boards that is similar to Gard’s bill.

Opponents of the bill are justifiably wary of the proposed consolidation. There are concerns that whatever efficiency IDEM might gain with the consolidation could potentially be eclipsed by the significant loss of technical and scientific knowledge of board members. The knowledge needed to evaluate an air pollution issue differs significantly from that needed to understand a water pollution problem.

Each of the separate boards includes experts in those specific areas as well as representatives of Indiana’s different interest groups, including community and environmental advocates.

Note that SB 130 is already on third reading in the Senate. Here is the current version.

The FWJG began its editorial yesterday with:

Improving efficiency and eliminating unnecessary bureaucracy are nearly always desirable objectives – except when efficient actually means ineffectual and impotent.
The bill, as it moves through the process, however, appears to be picking up a new bureaucracy, albeit less structured than the current system. The amended version of SB 130 already has been amended to add a technical secretary and legal counsel. There are apparently unpaid positions, except for "travel and per diem." This idea has been tried in the past for the individual boards and, as I recall, it has proven difficult to impossible to find individuals with the necessary time and expertise to attend to one board, much less a combination of all the boards. In addition, the amended version now provides that the board may establish totally uncompensated advisory committees for the purpose of giving advice on any matters pertaining to the business of the board.

HB 1002, which includes similar environmental board provisions as the Senate bill, is a massive bill which, IMHO, has not received enough press. Here is its current digest:

Synopsis: Eliminate commissions, boards, and committees. Reenacts the public officers compensation advisory commission that was repealed in 2011. Decreases the membership of the Indiana war memorials commission from ten to nine members with one member from each congressional district. Sets December 31, 2013, as the termination date for the Indiana stadium and convention building authority and transfers powers, duties, and liabilities of the authority to the Indiana finance authority. Consolidates duplicative reporting required for the Indiana economic development corporation (IEDC). Repeals the electronic digital signature act. Consolidates reporting requirements imposed on the IEDC for various programs administered by the IEDC into the state economic incentives and compliance report. Repeals the chapter requiring the IEDC to study the steel industry and provide expertise to public officials regarding the steel industry. Repeals and otherwise eliminates reporting requirements imposed on the IEDC to consolidate those requirements at another location in the Indiana Code. Repeals the law that establishes the tobacco farmers and rural community impact fund. Repeals the law that allows a distressed political subdivision to appeal if the subdivision's property tax collections are reduced by at least 5% in a calendar year as a result of the application of certain tax credits. Repeals the law that allows certain political subdivisions to borrow money for rural community water supply systems. Repeals the capital investment tax credit. Removes obsolete references to the abandoned railroad corridors board. Repeals certain statutes creating the following boards of the department of environmental management: (1) Air pollution control. (2) Water pollution control. (3) Financial assurance. (4) Solid waste management board (collectively, the repealed boards). Defines "board" to exclude the repealed boards. Establishes the environmental rules board (consolidated board). Requires the consolidated board to use rulemaking procedures to adopt rules. Transfers to the board duties of the department of environmental management to adopt certain rules related to: (1) treatment plant or water distribution systems certification programs; and (2) the waste tire management fund. Transfers certain powers and duties of the repealed boards to the consolidated board. Broadens the requirements for the appointment of one member of the board of animal health. Repeals the following committees, commissions, and boards: (1) Office of community and rural affairs advisory council. (2) Tobacco farmers and rural community impact fund. (3) Indiana arts commission trust fund board. (4) Council on library automation. (5) Library advisory council. (6) Law enforcement, school policing, and youth work group. (7) Affordable housing and community development fund advisory committee. (8) Indiana tourism council. (9) Indiana health informatics corporation. (10) Ohio River bridges project commission. (11) Veterans' home advisory committee. (12) Mental health corrections quality advisory committee. (13) Distressed unit appeal board. (14) Department of local government finance rule adoption committee. (15) Natural resources advisory council. (16) Courthouse preservation advisory commission. (17) Rural community water supply loan program. (18) Water shortage task force. (19) Water resources task force. (20) Corporation for educational technology. (21) Educational technology council. (22) School air quality panel. (23) Building and trades advisory committee. Makes conforming changes.
A DPA committee report on HB 1002 has been filed by the Select Committee on Governmental Reductions, but a reprinted bill reflecting the committee changes is not yet available.

Posted by Marcia Oddi on Saturday, January 21, 2012
Posted to Environment | Indiana Government

Friday, January 20, 2012

Ind. Law - Court's legislative update for 2012 - Week 3

The Indiana Judicial Center's legislative update for the 2012 session has been updated to include week #3. Scroll though to see the bills currently under consideration.

One item that caught my attention:

The House Courts and Criminal Code Committee heard HB 1204 regarding the sexual offender registry authored by Rep. Dermody.

Four amendments were introduced and adopted by consent. This legislation makes several changes to Indiana Code 11-8-8-22 concerning the sex offender registration provisions on access and registry information retention. The bill passed unanimously.

ILB: The committee meeting took place this morning, so the committee report with the text of the four amendments is not yet available.

Here is the digest to the introduced version:

Sex offender registry. Provides that certain sex offenders who are no longer required to register are not entitled to have their information (other than their addresses) purged from the registry. Specifies that persons who were previously required to register as sex offenders (as well as current sex offenders) are generally not permitted to restrict access to their conviction records.

Posted by Marcia Oddi on Friday, January 20, 2012
Posted to Indiana Courts

Ind. Courts - More on: Marion County Will Elect At Least Four New Judges This Year

Updating this ILB entry from Jan. 9, 2012, re the Indianapolis Bar Ass'n.-conducted survey to rate those of the 20 current Marion County judges whose terms end this year who are running for re-election, plus announced contenders, the results are now in. [ILB: I've clarified the earlier sentence somewhat]

Access them here. Note that the approval ratings range from as high as 96.7% to as low as 30.7%.

Posted by Marcia Oddi on Friday, January 20, 2012
Posted to Indiana Courts

Law - Items on lawyer ghostwriting, cut-and-paste documents

Circuit Splits had a post Jan. 13, 2012 headed "2nd Circuit Creates Split Over Lawyer-Ghostwriting Ethics Issue."

ABA Journal has a post Jan. 17, 2012 that begins:

A federal judge in Massachusetts has given a former client of Ropes & Gray the green light to proceed with a malpractice suit over claimed cut-and-paste work done on patent applications by a former partner whose company billed Cold Spring Harbor Laboratory about $10,000 for its work.

Cold Spring contends approval of its patent applications was delayed because unrelated material from another client was inserted into its filings by the company controlled by then-partner Matthew Vincent, Reuters reported.

Posted by Marcia Oddi on Friday, January 20, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Apex 1 Processing, Inc. v. Akeala Edwards, on Behalf of Herself and Others Similarly Situated, a 7-page opinion, Judge May writes:

Apex 1 Processing, a “payday loan” business, includes in its loan contracts a compulsory arbitration provision. Akeala Edwards brought a class action alleging Apex, doing business as payday lender Paycheck Today, engaged in unfair trade practices. Apex moved to compel arbitration of Edwards’ claim, but the trial court denied the motion because the arbitrator designated in the contract was no longer permitted to perform such arbitrations. As the designation of the arbitrator was integral to the arbitration provision, the trial court correctly determined that the agreement was impossible to perform and thus void. We accordingly affirm.
In K.F. v. State of Indiana, a 24-page opinion, Judge Darden writes:
K.F. appeals her adjudication as a delinquent child for having committed acts that, if committed by an adult, would constitute burglary as a class B felony; theft as a class D felony; and carrying a handgun without a license, a class A misdemeanor. We affirm in part, reverse in part, and remand.

ISSUES: 1. Whether sufficient evidence supports K.F.’s true findings for burglary, theft, and carrying a handgun without a license. 2. Whether the juvenile court abused its discretion by admitting certain testimony into evidence. * * *

CONCLUSION: Sufficient evidence supports the juvenile court’s findings that K.F. committed acts that would constitute burglary and theft if committed by an adult. However, there is insufficient evidence to support the juvenile court’s finding that K.F. committed an act that would constitute carrying a handgun without a license. Additionally, the juvenile court did not abuse its discretion by admitting into evidence K.F.’s statement made to Mother. The juvenile court did, however, err by allowing a police officer to testify as to Mother’s hearsay statements, but the admission of such testimony was harmless error. Finally, we remand with instructions for the juvenile court to correct the February 23, 2011 disposition order and CCS entry to accurately reflect the true findings that were entered by the court.

In Jose Castillo-Aguilar v. State of Indiana , a 7-page opinion, Judge May writes:
Jose Castillo-Aguilar was charged with Class C felony forgery for providing a false name to obtain employment. Police obtained the name of Castillo-Aguilar’s employer from an “Information Sheet,” (State’s Ex. 1), he was given at the Goshen Police Department following his arrest for driving without a license. Castillo-Aguilar alleges he should have received a Miranda warning prior to filling out that Information Sheet and, therefore, all evidence collected based on his answers should be suppressed. The trial court denied his motion to suppress, and we accepted jurisdiction over Castillo-Aguilar’s interlocutory appeal. We reverse. * * *

As Castillo-Aguilar was subjected to interrogation by the questions on the Information Sheet, he should have been given Miranda warnings. As he was not, the answers he provided on the Information Sheet, and evidence collected as a result of those answers, should be suppressed. See, e.g., King v. State, 844 N.E.2d 92, 97 (Ind. Ct. App. 2005) (“Because King was subjected to a custodial interrogation without the benefit of the Miranda warning, the pre-Miranda statements are inadmissible and should be suppressed.”). Castillo-Aguilar has demonstrated prima facie error, and we accordingly reverse the denial of his motion to suppress.

NFP civil opinions today (3):

Term. of the Parent-Child Rel. of R.C. & S.C.; R.C. (Mother) v. The Indiana Dept. of Child Services (NFP)

Patricia Mowery and Harold R. Mowery, Jr. v. Arron L. Hofmeister, Individually and as Employee/Agent of Marathon Petroleum Co., LP, and Marathon Petroleum Co., LP (NFP)

In Re: The Marriage of Cindy B. Neal and George Neal, Jr.; Cindy B. Neal v. George Neal, Jr. (NFP)

NFP criminal opinions today (7):

Louis L. Blacknell, Jr. v. State of Indiana (NFP)

Opie W. Glass v. State of Indiana (NFP)

Dustin Tumbleson v. State of Indiana (NFP)

Larry Hellyer v. State of Indiana (NFP)

Nicholas A. Meade v. State of Indiana (NFP)

Mikeia Lewis v. State of Indiana (NFP)

Leonard T. Marshall v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 20, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Indiana Dept. of Insurance, Indiana Patient's Compensation Fund v. Robin Everhart, Personal Rep. of the Estate of James K. Everhart, Jr., a 17-page, 5-0 opinion, Chief Justice Shepard writes:

Robin Everhart filed suit against the Indiana Patient’s Compensation Fund (PCF) to recover excess damages after settling a wrongful death claim against an emergency room physician in whose care her husband died. The PCF asked the trial court to reduce its award of damages to account for the twenty percent chance that Robin’s husband would have died anyway, even in the absence of the physician’s negligence. The trial court declined to do so, awarding Robin the statutory maximum $1 million in excess damages. We affirm, but on slightly different grounds. * * *

Robin’s case differs from our Mayhue line of cases not only in that Everhart stood a better-than-even chance of recovering in the absence of any medical negligence, but also in that joint tortfeasors negligently caused him an indivisible harm. That latter distinguishing fact triggers our rules on joint and several liability, which make it unnecessary for us to decide today whether to extend Cahoon to better-than-even cases. * * *

[W]e do not see any grounds on which we could reduce the trial court’s award of $1 million in excess damages, so deciding whether to extend or halt Cahoon’s advance would seem unnecessary at best. Because we hold that the PCF was not entitled to a set-off, we also need not address Robin’s argument that the trial court should reduce any set-off based on fees and expenses.

Conclusion For the reasons stated above, we affirm the trial court.

Posted by Marcia Oddi on Friday, January 20, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Law - More on: New proposed language offered in RTW binding referendum dispute

Here is the text of House Motion HB-1001-54, described by Rep. Bauer in the preceding ILB entry.

Posted by Marcia Oddi on Friday, January 20, 2012
Posted to Indiana Law

Ind. Law - New proposed language offered in RTW binding referendum dispute

More great tweets from Mary Beth Schneider of the IndyStar. I've arranged in chronological order:

Posted by Marcia Oddi on Friday, January 20, 2012
Posted to Indiana Law

Environment - "States look for agreement on electrical transmission siting"

Jim Malewitz, Stateline staff writer, reports today in a story that begins:

A committee of state and federal leaders is drawing up a broad-based agreement that would create regionally uniform standards for transmitting electricity across a broad spectrum of states. It hopes to have its product ready for legislatures by next year.

Posted by Marcia Oddi on Friday, January 20, 2012
Posted to Environment

Ind. Courts - More on "Judge David Dreyer has granted a temporary restraining order to prevent the imposition of fines on three representatives."

Updating this ILB entry from last evening, check this Dec. 7, 2011 ILB entry re Judge Dreyer's earlier ruling on last session's fines where, as Niki Kelly wrote:

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.
Today Mary Beth Schneider of the IndyStar reports under the heading "Pay seizure in House is blocked: Judge's temporary order permits fines but forbids method." Eric Bradner has a long story in the Evansville C&P, headed "Boycott fines frozen by court; Dems may return for 'work' vote."

Posted by Marcia Oddi on Friday, January 20, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Meth conviction reversed: Appeals court rules local man should go free"

The Jan. 18th COA opinion in Corey Fletcher v. State of Indiana is the subject of a story today in the Lafayette Journal Courier, reported by Sophia Voravong. Some quotes:

A Lafayette man serving a 62-year prison sentence for cooking methamphetamine and being a habitual offender should be released because he wasn't brought to trial fast enough, Indiana's appellate court has ruled.

The 2-1 Indiana Court of Appeals decision, handed down Wednesday, agreed with Corey N. Fletcher's argument that charges against him should be dismissed because his motion for a fast and speedy trial was ignored.

A fast and speedy trial means that defendants must be tried within 70 days of filing the request.

Posted by Marcia Oddi on Friday, January 20, 2012
Posted to Ind. App.Ct. Decisions

Thursday, January 19, 2012

Ind. Courts - "Judge David Dreyer has granted a temporary restraining order to prevent the imposition of fines on three representatives."

So reports WTHR 13 in a brief item this evening. More:

Democrats are appealing the House Speaker's decision to start fining them $1,000 a day as they boycott legislative proceedings over the contentious "right to work" bill.
Mary Beth Schneider adds that "Judge David Dreyer scheduled hearing on whether TRO should be prelim injunction for 1:30 p.m. Jan. 27."

Yesterday AG Zoeller issued this release:

INDIANAPOLIS – The Indiana Attorney General’s Office is defending several state officials from a legal action filed Wednesday that seeks to prevent the Indiana House of Representatives from imposing fines on legislators. The Attorney General’s Office contends the court should deny the plaintiffs’ motion for a temporary restraining order. Attorney General Greg Zoeller today issued this statement:

“The legislative process is often compared to ‘making sausage,’ and courts should stay out while the blades are moving. Under the separation of powers, this disagreement is an internal dispute for the legislative branch to resolve, not the judicial branch,” Zoeller said.

The Marion County Superior Court has not ruled yet on the motion filed Wednesday.

The Attorney General’s Office also represents state officials including the State Auditor and Speaker of the House in an earlier lawsuit over legislative fines filed in 2011. The trial court’s December 6 ruling in that case is currently being appealed.

Here is the "Motion to Compel and Fine" passed by the House yesterday, Jan. 18, 2012.

ILB: I'm hoping someone will send the ILB Dreyer's order from today and any other relevant documents.

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Courts - More on: Indianapolis attorney allegedly stole about $600,000

Bill McCleery of the Indianapolis Star has now filed a detailed story - a quote:

[P]rosecutors charged Stacy H. Sheedy, an Indianapolis attorney and accountant, with three counts of theft and one count of forgery, according to a release from Curry’s office. Grand Jury investigators, the release stated, discovered $596,000 in withdrawals and missing funds from a guardianship account and a family trust account for which Sheedy was responsible.

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Indiana Courts

Ind. Courts - What's going on with Charlie White's legal actions?

The Civil Action. Currently waiting for the Supreme Court to act on the motion for emergency transfer to the Supreme Court filed by the AG on behalf of the Recount Commission. Details in this Jan. 10, 2012 ILB entry. The appellate docket can be found via: Case Number: 49 A 02 - 1201 - MI - 00001, IN RE: ELECTION CONTEST. the most recent entry is 1/1/12:

NOTICE OF COMPLETION OF TRANSCRIPT (1)
(CERTIFICATE OF SERVICE DATE 01/12/12) ENTERED ON 01/19/12 LH
The Criminal Action. The most recent ILB entry from the criminal action is dated Dec. 19, 2011, with Carrie Ritchie of the Indy Star reporting that Judge Nation had denied White's motion to dismiss seven felony charges.

To access the Chronological Case Summary (CCS) of Case No. 29D01-1103-FC-003107, State of Indiana vs. Charles White, type or copy the case number into this box and then click the link in the result for a detailed report.

WISHTV 8 has a story last evening by Jay Hermacinski headed "Tempers flare at White hearing." A quote:

Charlie White's legal problems began when he decided to run for secretary of state in 2010. Democrats pointed out that White lived in a townhouse outside the district he represented on the Fishers Council – which is against state law. White resigned his council seat.

At that time, the Town of Fishers released a statement that included this admission from White: "Because of my statewide campaign for secretary of state and recent marriage, I failed to realize that my new residence was outside my council district. Once notified of the situation, I took immediate action to correct the issue."

Wednesday in court, Brizzi vigorously argued for the opportunity to question a newspaper reporter who printed the quote – saying he wants to verify that it is accurate. The judge is set to rule on that motion next week.

That reporter would likely be Carrie [Carime] Ritchie, as shown in the 1/18/2012 CCS entry.

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Indiana Courts

Ind. Law - More on: Binding referendum controversy continues ...

Latest tweet on issue:


Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Indiana Law

Ind. Law - Binding referendum controversy continues ...

New tweets from early this afternoon:




ILB: Eagerly anticipating ...

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Indiana Law

Ind. Courts - Indianapolis attorney allegedly stole about $600,000

From the start of the noontime WISH TV story:

An Indianapolis attorney and accountant faces charges stemming from allegations she stole hundreds of thousand dollars from two accounts she managed.

The Marion County Prosecutor’s Office says Stacy H. Sheedy faces three counts of theft and one count of forgery after investigators discovered $596,000 in withdrawals and unaccounted money missing from a guardianship account and a family trust account.

Here also are stories from WTHR 13 and FOX 59.

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Tommy D. Alfrey v. State of Indiana , an 11-page opinion, Judge Bradford write:

Upon appeal, Alfrey claims that the trial court’s jury instructions regarding the defense of intoxication constituted fundamental error, and that there was insufficient evidence to support his convictions or his probation revocation. We affirm.
NFP civil opinions today (2):

Beth E. Myers v. Rising Sun-Ohio County Community School Corporation (NFP)

Term. of Parent-Child Rel. of K.T.; K.A. (Father) v. Indiana Dept. of Child Services, and Lake County CASA (NFP)

NFP criminal opinions today (7):

Fernando Contreras v. State of Indiana (NFP)

Raymond Benjamin Gray v. State of Indiana (NFP)

Marie Robinson v. State of Indiana (NFP)

Stacey L. Certain v. State of Indiana (NFP)

Bart A. Dewald v. State of Indiana (NFP)

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

Dominique Guyton v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from the Supreme Court

In Chrysler Group, LLC v. Review Board of the Indiana Dept. of Workforce Development and T.A., et al., a 14-page, 5-0 opinion, Chief Justice Shepard writes:

As the U.S. economy collapsed in 2008, Chrysler offered a buyout program to employees in Kokomo, Indiana. Those employees then applied for unemployment benefits under Indiana’s Unemployment Compensation Act and their claims were initially denied. The Review Board of the Indiana Department of Workforce Development ultimately awarded benefits under a narrow provision of the Act. While this provision has now been repealed, its application is a matter of real consequence to these parties. We affirm the Board.

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Ind. Sup.Ct. Decisions

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

Updating this ILB entry from Dec. 24, 2011, Ben Zion Hershberg reports today in the Louisville Courier Journal in a story headed "Clark County challenges judgment in airport land case." The story begins:

The Clark County commissioners have challenged a court ruling that would require the county to pay a landowner more than $680,000 because of an eminent domain case involving its regional airport.

Clark County Attorney Greg Fifer argues in a motion filed Tuesday that Margaret Dreyer filed her disagreement with appraisals on her property too late to get the additional money that a jury says she is due.

John Mead, Dreyer’s lawyer, said in a telephone interview Wednesday that he is confident his client ultimately will receive the judgment she was awarded, plus interest.

“She didn’t get the required notice,” Mead said, explaining that the state law Fifer based his motion on says a landowner must receive a notice by certified mail saying property is being taken by eminent domain and what the property owner will be paid for it.

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Indiana Government

Ind. Gov't. - "Proposed fees questioned in South Bend landlord registry plan"

That is the headline to a lengthy story today by Margaret Fosmoe in the South Bend Tribune. A few quotes:

SOUTH BEND -- A proposal to create a mandatory registry for South Bend landlords could mean registration fees of $50 every two years for single-family homes and $100 every two years for duplexes.

Landlords could be fined $100 for failing to appear for a property reinspection or up to $2,500 for falsifying an affidavit about how many people may legally live in a particular house. * * *

The [Neighborhood Resources Corp., a nonprofit organization that works to strengthen the city's neighborhoods] has been studying the issue as a means of addressing issues with unruly tenants, deteriorating properties, absentee owners and other housing problems in the city.

The proposal is being written based on a rental property registry ordinance that has been in place since the 1970s in West Lafayette, Ind., although the fees proposed for South Bend are much lower. The measure so far focuses on single-family houses and duplexes.

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Indiana Government

Ind. Law - "In Indiana, Oregon, Tennessee and Texas, two-thirds of the members make up a quorum."

So reports Niki Kelly today in a Fort Wayne Journal Gazette story looking at Indiana's constitutional 2/3 legislative quorum requirement and its origins. A sample:

So what did the framers think when drafting that provision?

According to Vol. 2 of the Report of the Debates and Proceedings of the Convention for the Revision of the Indiana Constitution in 1850 there was one discussion about the two-thirds requirement.

In it, delegate Colfax made a motion to amend the requirement to a simple majority. He said the two-thirds requirement for a quorum "is holding out an inducement for gentlemen who may be disposed to resist the passage of a law, to break a quorum."

After cries of "no" and "consent" from the other members, a vote was taken and the amendment was rejected.

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Indiana Law

Ind. Decisions - More on: Trial judge upholds school voucher law

Updating this Jan. 13th entry from the ILB, re the trial court ruling issued Friday in the case of Meredith v. Daniels, the Fort Wayne Journal Gazette has an editorial today on "Vouchers' next step." A quote from the long editorial:

Keele’s ruling cites a 2009 Indiana Supreme Court decision that, in his view, takes the courts out of deciding exactly what this part of the constitution means. In that ruling, the court wrote that if the constitution established “a right, entitlement, or privilege to pursue public education, any such right derives from enactments of the General Assembly, not from the Indiana Constitution.”

Keele believes this decision “deemed issues of education policy authorized by the General and Uniform Clause to be political questions off limits to judicial intervention.”

If indeed Keele correctly interprets this state Supreme Court ruling, any final appeal to the state Supreme Court likely would support the constitutionality of vouchers.

That 2009 case is Bonner v. Daniels - see this June 2, 2009 ILB entry.

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Ind. Trial Ct. Decisions

Law - In NYC, "Zoning Laws Grow Up"

Interesting article today on zoning laws from Julie V. Iovine. A quote from the long WSJ ($$$) story:

"Zoning has always concerned itself, for better or worse, with social matters, such as banishing noxious uses," said Julia Vitullo-Martin, a senior fellow at the Regional Plan Association. "What's different now is that the planning commission is moving from zoning that's negative on social issues to being positive, like mandating green markets and bike rooms. It's reasonable for city government to encourage people to move in a beneficial direction. Whether zoning is the correct device is another matter. A market person might say it's better to go with incentives than mandates." As such, zoning is something of which every New Yorker and visitor ought to be aware.

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to General Law Related

Not law - "Do tattoos have career ramifications?"

Part 2 by Virginia Black today in the South Bend Tribune. Part 1 here.

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to General News

Law - "Cruise Lines Use Law and Contracts to Limit Liability"

"Cruise lines are protected by international law and by a carefully worded contract that passengers accept when they buy tickets," according to an article today in the NY Times, reported by John Schwartz.

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to General Law Related

Ind. Gov't. - "Indiana unveils its first license plate for gay youth"

See the AP Story here. It begins:

INDIANAPOLIS | Indiana's first specialty license plate that benefits gay causes is now available for purchase.

Bureau of Motor Vehicles spokesman Graig Lubsen said the Indiana Youth Group plate has been available since Dec. 28. The plate bears a logo with hands in rainbow colors reaching up.

For background see this Sept. 24, 2010 ILB entry headed "Group for gay teens sues over denial of license plate: Nonprofit claims BMV's standards violate Constitution."

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Indiana Government

Ind. Gov't. - Still more on "State, Amazon.com, reach sales tax agreement"

Updating this ILB entry from last evening, Ogden on Politics has a good post this morning headed "How is State's Agreement with Amazon Not a Public Record? "

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Indiana Government

Ind. Decisions - "7th Circuit Issues Ruling on Alcohol Delivery Law"

The 7th Circuit's Jan. 17th wine shipping decision, Lebamoff Enterprises v. Huskey, summarized here by the ILB, was the subject of an article in Palate Press yesterday, written by David Honig, that begins:

Yesterday one of the most respected judges in the country penned the Federal Seventh Circuit Court of Appeals’ decision on Indiana’s alcohol delivery law, and it was not good news for retailers. Judge Richard Posner smacked down the latest challenge to wine shipping laws, rejecting a case that, in retrospect, might not have been the best next step in the fight.

At issue was Indiana’s law prohibiting delivery by anybody other than the wine seller or employee of the wine seller, barring delivery by carriers like UPS.

The Plaintiff, Cap N’ Cork, a Fort Wayne, Indiana, wine chain, argued the law should be struck for two reasons, conflict with federal law and violation of the Commerce Clause of the Constitution.

The article concluded:
This simply might not have been the best case to challenge restrictions on wine delivery. Judge Posner himself went out of the way to note that a different challenge, one brought by the commercial carrier rather than the retailer, was likely to be met with approval. The decision itself is firmly grounded on sound reasoning and analysis. The fact that it was penned by Posner makes it likely to have strong persuasive power even in courts not bound by Seventh Circuit precedent. Further, should the Supreme Court ever hear the issue, on an appeal of this case or another case, it is likely to find Judge Posner’s reasoning persuasive.

Posted by Marcia Oddi on Thursday, January 19, 2012
Posted to Ind. (7th Cir.) Decisions

Wednesday, January 18, 2012

Ind. Gov't. - More on "State, Amazon.com, reach sales tax agreement"

Updating this ILB entry from Jan. 9, 2012, which includes the Governor's press release on the sales tax agreement, and this entry from earlier today, where WRTV 6 reports: "State budget officials have refused to release Indiana's much talked about agreement with Amazon.com.," the Indiana Merchants for Tax Fairness Spokesperson and Indiana Retail Council President Grant Monahan have issued a release "concerning the refusal of state leaders to release the details of the state’s deal with Amazon." Some quotes:

“We are disappointed in the recent actions by state budget officials that have made it clear they will keep the unfair tax deal details with Amazon secret. This special deal benefits one company at the expense of every retail store in this state.

What does the state have to hide? If the state is going to make a deal to preserve Amazon’s competitive advantage over brick-and-mortar retailers for two more years – Hoosier merchants and taxpayers alike demand transparency. Is the state worried that more Hoosier businesses will request the same deal that was negotiated with Amazon?

We encourage state legislative leaders to do the right thing and not support this special deal that will continue to harm thousands of Indiana local retail stores and cost Hoosiers more jobs over the next two years. We ask them to level the playing field now.”

Indiana Merchants for Tax Fairness is a coalition of over 320 small businesses and individuals committed to leveling the playing field between online-only and brick and mortar retailers.

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Indiana Government

Ind. Decisions - Supreme Court decides two today

In A.T. v. State of Indiana, a 3-page per curiam opinion concludes:

Transfer having been granted by separate order, we reverse the trial court’s dispositional order and remand to the trial court with instructions to vacate that portion of its order committing A.T. to the Department of Correction until his eighteenth birthday.
In Rickey D. Whitaker v. Travis M. Becker, an 11-page opinion, Chief Justice Shepard writes:
After an automobile collision in which Travis Becker struck Rickey Whitaker from behind, Whitaker filed suit for personal injuries.

Over the next year, Whitaker’s lawyer ignored repeated requests to provide information about his client’s medical treatment, finally responded only after the trial court ordered him to do so, and then supplied false and misleading information, and did so in a way that palpably damaged the defendant’s ability to ascertain the facts necessary to litigate the only real issue in the case.

Becker filed a motion for sanctions, seeking dismissal of Whitaker’s suit. The trial court found that both Whitaker and his lawyer had acted in bad faith and concluded that dismissal was the only realistic and effective remedy. It dismissed the case. We affirm. * * *

Magistrate Bobay and Judge Felts acted within the range of their discretion in making it clear to counsel that this type of behavior is unacceptable. We affirm the trial court.

Dickson and David, JJ., concur.
Sullivan, J., dissents, believing the analysis and conclusion of the Court of Appeals in this case to have been correct.
Rucker, J., dissents.

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Binding referendum controversy continues; The 1850 Constitutional Debates

The Report of the debates and proceedings of the convention for the State of Indiana, Volume 2, makes it definitively clear that the purpose of Art. 1, sec. 25 was to prevent "a species of legislation [where a law is] made to take effect upon a vote of the people approving it." Read the debate under the heading "Unconstutitional Legislation" -- it make take a minute for the text to load:

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Indiana Law

Ind. Law - More on: Binding referendum controversy continues

Okay, a search of the Indiana caselaw has revealed one opinion mentioning a state-wide referendum. It was in a dissent. The case is Hanley v. Indiana State Dept. of Conservation, 234 Ind. 326, 329 (1954):

Under the reasoning of the majority opinion of the Veterans Bonus Law, Ch. 277, Acts 1949, and amendments thereto, § 59-1401, Burns' 1951 Replacement, et seq., which was approved by the voters of this state in a referendum (870,195 votes yes, 250,318 votes no), is of doubtful constitutional validity, for with equal force it could be asserted that it grants to a "class of citizens, privileges or immunities which, upon the same terms," do "not equally belong to all citizens." Section 23, Article 1, Constitution of Indiana.
But the Centennial History of the Indiana General Assembly, at p. 466, gives the details. In 1944 the American Leigion lobbied hard for a state bonus for veterans:
The General Assembly responded by putting the following the following referendum to the voters at the 1948 general election: "Do you favor the payment of of a state solders' bonus for veterans of World War II?" Voters subsequently approved a bonus by a two to one margin and it fell to the 1949 session to spell out the particulars.
In short, this was a non-binding, "sense of the populace" referendum. The General Assembly was not bound to pass any law.

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Indiana Law

Ind. Law - Binding referendum controversy continues

Recent tweet on continuing controversy:


ILB: Perhaps because there are no cases ... ?

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Indiana Law

Ind. Gov't. - "State Won't Release Amazon Agreement"

WRTV 6 is reporting:

State budget officials have refused to release Indiana's much talked about agreement with Amazon.com.

In a news conference earlier this month, Gov. Mitch Daniels announced the state had reached an deal with the retail giant to start collecting 7 percent sales tax starting in 2014.

RTV6 requested the agreement via public records request.

"The agreement is confidential per IC 6-8.1-7-1," State Budget Director Adam Horst responded, saying the agreement is considered a "settlement agreement," which protects confidentiality of tax-related information.

Indiana Public Access Counselor Joseph Hoage told RTV6 that the state does not even have to provide a redacted version of the agreement.

"The law provides the terms of that agreement would be confidential and not available for disclosure," Hoage wrote in an email to RTV6.

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

Holiday Hospitality Franchising, Inc. v. AMCO Company, et al.

Corey Fletcher v. State of Indiana

NFP civil opinions today (4):

In the Matter of the Term. of the Parent-Child Rel. of Ay.L. and Al.L.; and R.L. and K.L. v. The Indiana Dept. of Child Services (NFP)

Adam Hanna v. Review Board of the Indiana Dept. of Workforce Development (NFP)

Ramezan Hajizadeh v. Jo Hajizadeh a/k/a Jo Owens (NFP)

Steven D. Stocker and Nancy J. Stocker v. Connie L. Schnapf, as Trustee of Trust B Established Under the Thomas M. Crane Primary Trust Agreement Dated November 12, 1992 (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Ind. App.Ct. Decisions

Not law - "It's a Tattooed World: Regrets, they have a few"

Great topic, great photos (an example), great story, and its only Part 1 of 2. By Virginia Black today in the South Bend Tribune.

Tomorrow: "Do tattoos have career ramifications?"

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to General News

Ind. Courts - "Judge Magnus-Stinson to Receive Buchanan Award"

Announcement here, at the IBA site.

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Indiana Courts

Environment - "Both the House and Senate are setting the stage for a spate of environmental bills"

That is a quote from this story in Indiana Living Green, dated Jan. 16th.

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Environment

Ind. Law - No more news from Carroll County

In the past, the ILB occasionally has linked to a story from the Carroll County Comet, particularly a story about the court or judges. But there can be no more news from Carroll County for those of you in the rest of the state, any effort to access a story in the Comet now leads to a "paywall."

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Indiana Law

Ind. Law - "Indiana lawmakers look for ethics exemptions: Legislation would create loophole in lobbying rules

SB 244 is the subject of a detailed report today by Scott Smith of the Kokomo Tribune. The long story begins:

One of the cornerstones of the Indiana General Assembly’s 2010 ethics reform bill was a ban on lobbyist-funded, out-of-state travel for legislators.

As it turns out, the ban isn’t quite an iron-clad rule.

And two years after the bill’s passage, legislators are busy trying to carve out additional exemptions to the rules.

If lobbyists can’t directly pay for a state legislator to go on a junket, they have another option.

By simply paying for membership in a group like the American Legislative Exchange Council, which brings together corporate lobbyists and a host of conservative legislators at conferences around the country, the lobbyists get unfettered access to influential legislators.

ALEC, seen by critics as the driving force behind the effort to make Indiana the 23rd right-to-work state, was given a specific exemption to the lobbying law when it was passed, on the claim that the group is nonpartisan and doesn’t engage in lobbying activity.

But so were six other national groups, all claiming to be established for the education and support of legislators. The groups come from across the political spectrum: The National Conference of State Legislatures, the National Conference of Insurance Legislators, Women in Government, the Council of State Governments and the National Black Caucus of State Legislators.

Now a group of Indiana senators is trying to add to the list of exempt groups.

Senate Bill 244 proposes adding the Congressional Sportsmen’s Foundation, the National Assembly of Sportsmen’s Caucuses and the State Agriculture and Rural Leaders Association to the exemption list.

State Sen. Brent Steele, R-Bedford, and State Sen. John Waterman, R-Shelburn, are asking for the sportsmen’s groups to be exempted.

Giving the groups an exemption would allow legislators like Steele and Waterman to travel to the groups’ conferences and hunting trips, at the groups’ expense, without running afoul of the lobbying rules or having to disclose the trips.

State Sen. Jean Leising, R-Oldenburg, a co-author of the bill along with Steele and Waterman, is proposing to add the State Agriculture and Rural Leaders, a group funded by a who’s who of agribusiness concerns, to the exempted list.

“My concern is, are they really just trying to educate legislators, or are they a front groups for lobbyists?” said Julia Vaughn, executive director of Common Cause Indiana, a legislative watchdog group. “If we start exempting groups, based on the claim they’re educational groups and not advocates, where does it end?”

More from the story:
Leising said legislators had hoped a “catch-all clause” included in the original ethics reform bill would give legislators blanket permission to accept paid travel to any “national organization established for the education and support of legislative leadership, legislators, legislative staff, or related government employees.”

But Chuck Harris, executive director and general counsel of the Indiana Lobby Registration Commission, said the clause would have to be interpreted narrowly, meaning that only groups strictly involved with educational efforts would fall under the exemption.

So the senators backing SB 244, perhaps concerned that some of the three groups’ activities might venture beyond education into lobbyist-type advocacy, decided to seek a clear-cut exemption.

If the bill passes, the groups will all be exempt from the gift disclosures and paid travel bans imposed on lobbyists, regardless of whether lobbying occurs at their events.

Leising says the groups aren’t lobbyists, simply because “they don’t come [to the Legislature] and lobby.”

“I don’t see anyone from these groups here lobbying, and if they do come, it’s typically at the request of a legislator to come here and provide information,” she said.

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Indiana Law

Ind. Law - "Indiana Senate committee OKs illegal entry bill"

Shelby Salazar reports in the Evansville Courier & Press this morning:

After heated debate, an Indiana Senate committee approved a measure Tuesday that defines when residents can use force to prevent a police officer from entering their homes, but not before amending the bill.

The author of Senate Bill 1, Sen. Mike Young, R-Indianapolis, introduced the bill as a response to the Indiana Supreme Court's Barnes v. State decision, which said homeowners could not resist law enforcement officials' attempts to enter their homes.

Young presented an amendment that removed a line from the bill. The line said an officer may enter a home if there is "an investigation of suspected domestic or family violence."

"It appears that language could be so broad, that we allow police officers really any reason to come into our homes by having this suspicion of domestic violence," Young said.

Young said the line directly after it, "entry into a dwelling by a law enforcement officer who has a reasonable belief that a person inside the dwelling has been or is at risk of physical harm," is sufficient.

"The language was to try and draw a bright line," Young said. "So that whether you are a citizen or a law enforcement officer, we can tell what is a lawful entry and what is an unlawful entry."

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Indiana Law

Stage collapse - "Senate panel OKs rules for stages like one that failed at state fair"

Chris Sikich's story today in the Indianapolis Star begins:

Legislation that would regulate outdoor stage equipment like that used in the Aug. 13 stage-rigging collapse at the Indiana State Fair today passed the Senate Homeland Security, Transportation and Veterans Affairs Committee. It now will go to the full Senate, where amendments will be considered.
The bill is SB 273.

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Stage Collapse

Vacancy on COA 2012 - Judge Darden retiring?

Although I have seen no official announcement, apparently Judge Carr L. Darden of the Indiana Court of Appeals is retiring this summer.

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Vacancy on COA 2012

Ind. Law - Following on: Are binding referendums constitutional in Indiana?

Updating yesterday's ILB entries, a tweet seen this morning:


See Niki Kelly's story this morning in the Fort Wayne Journal Gazette. Some quotes:
Last week, both sides agreed to handle House Bill 1001 amendments Tuesday.

Democrats are pinning their hopes on an amendment requiring a statewide public vote on right to work. But Bauer said he didn’t learn until about 10 p.m. Monday – a holiday – that there were constitutional concerns about the amendment.

He called it a “last-minute attempt to diminish the amendment” and “the next dodge of the public.”

Bauer doesn’t think his caucus members will be present at 9 a.m. today when the session reconvenes as lawyers are researching the matter. * * *

House Democrats have conceded they don’t have the votes to stop the bill. Instead, Rep. Win Moses, D-Fort Wayne, offered an amendment for a statewide referendum on the law.

But Legislative Services Agency – the non-partisan legal branch of the legislature – said the provision making a law contingent on a statewide public vote might violate Article 1, Section 25 of the Indiana Constitution.

That provision says, “No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.”

A Legislative Services Agency memo says legislative authority is given solely to the Indiana General Assembly, not the public.

“It is unlikely that the effectiveness of a statewide law could be made contingent on approval of the voters,” the memo said. “The current Indiana Constitution provides a framework for enactment of legislation that does not include a referendum option.”

Marcia Oddi, writer of the Indiana Law Blog, said it is likely that only an advisory or non-binding referendum is constitutional in Indiana.

But she also quoted the current version of the Legislative Services Agency’s bill-drafting manual, which said it is possible to draft legislation that is applicable upon the occurrence or non-occurrence of some future event.

The manual also provides examples.

There appears to be no case law on the question, and Bauer is looking for a way to draft the amendment so it would not be a concern.

In 2008, legislators provided for a public question on whether to retain township assessors that was not challenged.

It was not statewide, though, affecting only the largest townships in the state.

Eric Bradner reports in the Evansville Courier & Press:
The idea of putting right to work to a statewide referendum has been Democrats' proposal to get all Hoosiers involved in an issue that was not debated in most 2012 legislative races.

That's a much different tack than Indiana takes in most cases. While lawmakers have allowed for local referendums on issues such as school funding and abolishing township assessors, and they've placed constitutional amendments on the ballot, they've not allowed voters to decide on whether to enact a state law.

There's a reason for that. Unlike those of states such as California and Ohio, Indiana's constitution does not provide for such a referendum.

A Legislative Services Agency analysis on Jan. 13 said, "In short, it is unlikely that the effectiveness of a statewide law could be made contingent on approval of the voters."

Bosma said while he would have allowed a vote on the Democratic amendment anyway, he believes it should be up to lawmakers to decide the issue.

"Our state constitution very clearly holds our General Assembly responsible for statewide enactments," he said. "Apparently Rep. Bauer came to that realization that it might put their pet amendment in jeopardy, and decided that was enough to walk away."

From a story this morning in the Indianapolis Star by Mary Beth Schneider:
[Bauer] said Democrats only learned last night that the nonpartisan Legislative Services Agency had been asked -- Bauer believes by Republicans — to research the constitutionality of a referendum and had decided it was not.

Bauer said Democrats assumed when LSA drafted both their amendment and an identical one sought by a Republican that it would meet constitutional muster. He believes Republicans raised the issue in order to block it from passage.

“I don’t know, but I suspect that the people who asked for it (the LSA analysis of the amendment’s constitutionality) were the same people now protesting innocence,” Bauer said. “We cannot know that LSA is giving us something that they would later rule is possibly unconstitutional. We need time to perfect it.”

Posted by Marcia Oddi on Wednesday, January 18, 2012
Posted to Indiana Law

Tuesday, January 17, 2012

Ind. Law - More on: Watch out for scams aimed at Indiana attorneys

Updating this ILB entry from July 12, 2010, it appears that one of our Indiana attorneys may have fallen for such a scam, as described in a 4-page ruling today by United States Magistrate Judge Debra McVicker Lynch:

Ms. McDonald is an attorney. She was allegedly contacted by a would-be client (a man claiming to be George Burger acting on behalf of Alliance Machining Technologies) to help it collect a debt and agreed to accept the engagement. She received the $298,750 check from her client’s purported debtor to satisfy the debt. Under an agreement with her “client,” she deposited the check in her trust account, kept 10% as the agreed fee for professional legal services, and then requested her bank (FFB) to wire transfer the remainder to her client’s representative in care of an account at the Bank of China. FFB wired the funds but the check from the purported debtor was not written on an actual bank account and was part of a scam transaction.

As against Ms. McDonald, FFB’s suit alleges she breached warranties provided under the Uniform Commercial Code as adopted in Indiana and that she committed check deception entitling FFB to relief under Indiana’s Offenses Against Property Act.

The issue that was the subject of this ruling was:
FFB’s motion (Dkt. 65) to compel Misty McDonald to produce the documents she withheld as attorney-client communications between her and Mr. Burger or Alliance Machining Technologies is GRANTED. She must produce these documents no later than January 23, 2012.

Posted by Marcia Oddi on Tuesday, January 17, 2012
Posted to Indiana Law

Ind. Law - Continuing with: Are binding referendums constitutional in Indiana?

Okay, here is the latest, and I'm able to use the new Twitter "embed" feature:


[More] And here is the just posted Indy Star story by Mary Beth Schneider and Chris Sikich - don't miss.

Posted by Marcia Oddi on Tuesday, January 17, 2012
Posted to Indiana Law

Ind. Law - Still more on: Are binding referendums constitutional in Indiana?

According to tweets I'm reading, issues have arisen in the House about the constitutionality of the proposed 2nd reading amendment that would subject the RTW issue to a referendum:

ericbradner Eric Bradner
"We need time on this one bill to at least have a fair, constitutional chance to give people a voice," Bauer says.

"We need a constitutional possibility" before returning to the Indiana House, Bauer says of Democrats.

Bauer seems to be saying it's because of the LSA note indicating that a statewide referendum would be unconstitutional.

marybschneider Mary Beth Schneider
Bauer (speaking over shouts of protests) says pledge was once get "constitutionally-accepted referendum amendment, we will return."

nkellyatJG Niki Kelly
Dems still caucusing; some concern over the constitutionality of referendum language. Bosma and Bauer at least on the floor.

Posted by Marcia Oddi on Tuesday, January 17, 2012
Posted to Indiana Law

Ind. Law - More on: Are binding referendums constitutional in Indiana?

Updating this ILB entry from this morning, the Fort Wayne Journal Gazette has an editorial today urging "Make lawmakers decide right to work," arguing that "usurping Indiana’s traditional method of adopting laws would set a bad precedent that would allow legislators to punt on the most divisive issues." More:

Indiana’s constitution and laws strictly limit the subject of statewide referendums, mostly to constitutional amendments. That’s why tax caps went to voters two years ago and the ban on state-sanctioned gambling was lifted in a statewide referendum a quarter-century ago.

Both issues meant changing the Indiana Constitution, and it’s appropriate for such fundamental changes in the state’s overarching government document to go directly to voters.

But Hoosiers elect representatives to make tough, controversial decisions, such as moving the state to daylight-saving time or leasing the Indiana Toll Road.

Voters give their opinions to representatives and have power to vote them out when they fail to represent their constituents in the way voters want. It was no coincidence that Democrats re-took the House majority after the controversial Toll Road vote.

If right to work goes to voters, why stop there? Why not let voters decide other issues before the General Assembly, including a statewide smoking ban, legalizing switchblade knives and regulating how the national anthem is to be sung? Should Indiana eliminate the board that regulates dietitians? Once the door is opened, calls for additional referendums could be endless.

Posted by Marcia Oddi on Tuesday, January 17, 2012
Posted to Indiana Law

Ind. Law - Golf carts on county roads passes first House

Tweeted a few minutes ago:

marybschneider Mary Beth Schneider
At by vote of 91-2 people will soon be able to twaddle about the countryside in their golf carts. A blow for freedom!
The bill is House Bill 1013. For background, see this ILB entry from Jan. 8, 2012.

Posted by Marcia Oddi on Tuesday, January 17, 2012
Posted to Indiana Law

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

In Lebamoff Enterprises v. Huskey (SD Ind., Magnus-Stinson), a 36-page opinion challenging the constitutionality "of an Indiana state law that prevents Cap N’ Cork from shipping wine to its customers via a motor carrier, such as UPS," Judge Posner's opinion concludes at p. 13:

The case comes down to a complaint that state law is preventing Cap N’ Cork from enlarging its sales area to encompass parts of Indiana remote from Fort Wayne. If true that is an effect on intrastate commerce, not interstate commerce. No effect on interstate commerce has been shown, in contrast to the factual showing of effect on interstate commerce that persuaded the Sixth Circuit in Cherry Hill Vineyards, LLC v. Lilly, supra, 553 F.3d at 432- 33, to invalidate a law similar to the one upheld in Baude. The absence of even an incidental effect on interstate commerce excuses us from having to wrestle with the continued applicability of the Pike standard to state laws that while they discriminate incidentally against interstate commerce are at the same time within the Twenty-First Amendment’s gravitational field.

[Judge Hamilton concurs in a separate opinion that begins on p. 14]

I agree with my colleagues that the district court’s grant of summary judgment for the defendant should be affirmed, but with respect, I reach that conclusion by a different route. In rejecting plaintiffs’ preemption and dormant Commerce Clause theories, my colleagues apply a quasi-legislative form of interest-balancing. In my view of the applicable law, the Twenty-first Amendment to the Constitution should foreclose those balancing tests when the state is exercising its core Twentyfirst Amendment power to regulate the transportation and importation of alcoholic beverages for consumption in the state. The challenged state law here, forbidding some but not all direct deliveries of alcohol by common carriers to consumers, falls within that core power. The law should be upheld even if, as I believe, its actual benefits are minimal and its burdens on federal interests are significant.

[and concludes, at p. 36:]

Yet the extraordinary constitutional status given to state alcoholic beverage laws in the Twenty-first Amendment was the compromise that allowed the repeal of Prohibition. Rather than asking courts to erode that compromise, those seeking a more progressive organization of the industry should turn to state-bystate political action on behalf of consumers who are hurt by these laws designed primarily to protect incumbents in the industry.

Posted by Marcia Oddi on Tuesday, January 17, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending January 13, 2012

[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 Friday, January 13, 2012. It is one page (and 10 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Tuesday, January 17, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Term. of Parent-Child Rel. of D.C. and J.C.; J.D.C. (Mother) v. Indiana Dept. of Child Services (NFP)

Rising Property Management, LLP v. Department of Metropolitan Development Board of Zoning Appeals and Glendale Partners, Inc. (NFP)

NFP criminal opinions today (6):

Rebecca Herb v. State of Indiana (NFP)

Adrian Deshon Porch v. State of Indiana (NFP)

Tyrone Tapp v. State of Indiana (NFP)

Aliesha Youna v. State of Indiana (NFP)

Brandi M. Holder v. State of Indiana (NFP)

Jerome Maxwell v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 17, 2012
Posted to Ind. App.Ct. Decisions

Courts - "SCOTUS rejects appeals in student speech cases"

A brief AP story reports that the SCOTUS this morning rejected two cases re "whether schools may censor students who are at home when they create online attacks against school officials and other students."

For background, see this LA Times story from Jan. 14th, reported by David G. Savage, headlined "Supreme Court to consider educators' response to cyber-bullying: Two principals targeted in MySpace attacks suspended the involved students, who sued on grounds of free speech and won. The issue has now been taken to the high court."

Posted by Marcia Oddi on Tuesday, January 17, 2012
Posted to Courts in general

Courts - "SCOTUS rejects appeal over prayer at public meeting"

A brief AP story reports that the SCOTUS this morning rejected:

... an appeal from a North Carolina county commission over the mostly Christian prayers offered at the beginning of its public meetings.

The justices on Tuesday left in place a federal appeals court ruling that held that the predominantly Christian prayers at the start of Forsyth County commission meetings violated the First Amendment's prohibition on government endorsement of a particular religion.

Posted by Marcia Oddi on Tuesday, January 17, 2012
Posted to Courts in general

Ind. Gov't. - "Universities' State-Subsidized Fiber-Optic Network Runs into Trouble"

Public News Service has an interesting story today that begins:

INDIANAPOLIS - Bills have been introduced in both chambers of the Indiana General Assembly to slam the brakes on nearly all expansion of I-Light, the state-created and subsidized fiber-optic network that links Indiana University, Purdue, and other universities in Indiana.

Dave Jent, associate vice president of networking at IU, says the university signed an operating agreement with the state and was instructed to link the institutions. Now, telecommunications companies are upset with the deal, saying they're losing business.

Jent says IU is following the agreement.

"Sure, we provide a great value, I think. But again, and I said this in the testimony the other day, this is exactly what the governor's office told us to do: create a high-quality service for the least possible cost to the institutions."

Bill author Senator Travis Holdman says the state's involvement is unfair to telecommunications companies that want to provide the same services to those schools.

Holdman says another issue is Indiana University's interest in expanding I-Light to its medical facilities, after IU's investment in Clarian hospitals.

"They want to make that I-Light network available to physicians' offices, to their clinics, to their hospitals. And once again, it appears to be a government-subsidized entity that's making a run on private business."

Posted by Marcia Oddi on Tuesday, January 17, 2012
Posted to Indiana Government

Ind. Courts - Death penalty a costly choice

Rebecca S. Green of the Fort Wayne Journal Gazette had a long Sunday story on the Indiana Public Defender Council and the requirement that public defenders in capital cases be certified by the Indiana Public Defender Commission to handle a capital case. Some quotes:

Established in 1989 by the state legislature, the Public Defender Commission exists primarily to recommend standards for indigent defense in capital cases.

Counties that meet those standards can apply to the commission for reimbursement from the public defense fund in capital cases. Since 1997, that reimbursement can be up to 40 percent of a county’s cost for a death penalty case.

Deborah Neal, staff counsel at the Public Defender Commission, said the public defense of a capital case can cost a county between $200,000 and $800,000. Those numbers do not include other costs to the county, such as jury, prosecution and general court expenses, she said.

If a county prosecutor pursues the death penalty, and the court appoints public defenders to represent the accused and those attorneys are not certified by the Public Defender Commission, reimbursement is impossible, she said.

To be certified, the lead attorney must have at least five years of criminal trial experience, handled multiple felony cases and have experience in at least one case – as either lead or co-counsel – in which the death penalty has been sought, according to Indiana Rules of Criminal Procedure. * * *

To serve as co-counsel, an attorney must have at least three years of criminal trial experience and have experience as co-counsel or lead counsel in at least three felony trials, according to the criminal procedure rules.

And both must have taken, within two years, the 12-hour course, from either the Indiana Public Defender Council or a number of other states and organizations such as the NAACP Legal Defense Fund or the National Consortium for Capital Defense Training, according to the Public Defender Commission.

In recent years, the number of death penalty cases filed in the state has dropped, and the number of cases that resulted in a death penalty sentence is even less, according to state statistics.

In 2000, 11 death penalty cases were filed, with two death sentences handed out. In 2011, the number of capital cases filed was down to three, according to the Indiana Public Defender Council. * * *

Prosecutors are beginning to recognize that the death penalty is not always the best use of their dollars, said [Paula Sites, the Public Defender Council’s assistant executive director.]

And at the same time, defense attorneys are finding better ways to spend their money for required continuing legal education, rather than on something used so rarely in the state, she said.

“Things that can be used much more often have a much more practical use,” Sites said. “We used to provide death penalty training every year, but we have cut back to every other year. It just doesn’t make sense, not just for lawyers to take it every year, but for us to provide it every year.”

Posted by Marcia Oddi on Tuesday, January 17, 2012
Posted to Indiana Courts

Ind. Law - Are binding referendums constitutional in Indiana?

Years back, I learned that only a non-binding, or advisory, referendum was likely constitutional in Indiana, because Art. 1, Sec. 25 of the Indiana Constitution reads:

Section 25. No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.
However, this morning I checked the current version of the Bill Drafting Manual on the General Assembly's website. Here are some quotes from Chapter 3. Bills, L. Effective Dates:
(12) Contingent on Some Event

It is possible to draft legislation that will be applicable upon the occurrence or nonoccurrence of some future event. In drafting such a provision, comply with Article 1, Section 25 of the Constitution of the State of Indiana, which voids any act taking effect on any "authority outside that provided in the Constitution".

Example: If a majority of the votes cast in the referendum favor the election of the members of the governing body, then IC 20-3-19 applies to the school corporation.

Provisions that might fail to comply with the constitutional requirement are as follows:

Don't say:

This act becomes effective when the Association of Electricians adopts standards to govern the installation of wiring.

or

This act becomes effective when the United States Drug Enforcement Agency adds the substances listed in this article to its list of controlled substances.

The same discussion appears in the 1999 Bill Drafting Manual, at pp. 49-50.

Here is what the 1971 Draftsman's Manual* provided, at p. 66:

The Act Which is Effective Upon Some Event

In addition to fixed or ascertainable dates, it may be possible to draft legislation which will be effective upon the occurrence or non-occurrence of some future event.

However, beware of the provisions of Article 1, Section 25 of the Constitution, which void any act made effective upon any "authority" outside of that provided in the Constitution itself.

A bill ordinarily becomes law when it is signed by the Governor. It ordinarily takes effect when the Acts are promulgated. A bill which provides that it will take effect and be operative only in those cities where the voters approve it in a referendum, for example, is of questionable validity.

In every case, the matter of which is an "authority" outside of the Constitution must be determined by a review of the relevant Supreme Court decisions.

My take in 2012? I'm not sure this is now a settled area. I am unaware of any relevant Supreme Court decisions, but would welcome more information.
_______
*The 1971 Manual, which I co-authored, is not currently online.

Posted by Marcia Oddi on Tuesday, January 17, 2012
Posted to Indiana Law

Monday, January 16, 2012

Ind. Gov't. - Current standing rules of the Indiana House of Representatives

The House Standing Rules are available here on the General Assembly's website.

The ILB has used that copy to produce a more useful, searchable version with a linked Table of Contents: House Rules

Posted by Marcia Oddi on Monday, January 16, 2012
Posted to Indiana Government

Environment - Bill would abolish all environmental boards, replacing them with a "rules board" on July 1st

SB 130 - here is the digest:

Synopsis: Environmental board consolidation. Repeals certain statutes creating the following boards: (1) Air pollution control. (2) Water pollution control. (3) Financial assurance (collectively, the repealed boards). Defines "board" to exclude the repealed boards. Establishes the environmental rules board (consolidated board). Requires the consolidated board to use rulemaking procedures to adopt rules. Transfers to the board duties of the department of environmental management to adopt certain rules related to: (1) treatment plant or water distribution systems certification programs; and (2) the waste tire management fund. Transfers certain powers and duties of the repealed boards to the consolidated board.

Effective: July 1, 2012.

Author: Senator Gard. Assigned to Senate Energy and Environmental Affairs Committee.

ILB Note: Although not listed in the digest, the Solid Waste Management Board is also repealed.

Posted by Marcia Oddi on Monday, January 16, 2012
Posted to Environment

Ind. Law - Maybe the AG's consumer protection division can investigate

Jenny Anchondo of Fox 59 had a story last Friday that got my attention. Here are soome quotes:

Trouble is brewing between Restaurant.com, a local restaurant and some of their customers.

After buying gift certificates, House of Tokyo customers found out the company had canceled the deal and the certificates were no longer valid.

Joell Lasley bought the certificates from Restaurant.com to the House of Tokyo as Christmas gifts. After the holiday, she found out they were not being honored.

“I was mortified that when I found out that the gift certificates that I had been giving to family and friends were not going to be honored,” said Lasley.

Hay Duong, the Vietnamese restaurant owner, explained that there was a language barrier between him and the salesperson from Restaurant.com.

“I didn't quite understand what he was talking about, you know,” said Duong. “But I thought that when he sold the certificate that the money would go back to the restaurant.”

However, his business does not get any money out of the deal. The customer paid $10 to Restaurant.com and got a $25 dollar gift certificate to use at House of Tokyo.

“What Restaurant.com does is we sell tables and we drive revenue,” said Christin Accomando, a representative for Restaurant.com who spoke to Fox59 on the phone. “We don't bring them revenue directly, but we bring but we bring people to their restaurant through marketing our website.”

“When we asked Restaraunt.com to please take our name off of their website, they basically just didn't do it,” said Danny Bogard, a consultant for House of Tokyo. “They continued to sell certificates.”

Accomando said they signed a contract and must fulfill the 90-day commitment, which is why they continued to sell the certificates, even after knowing House of Tokyo would turn customers away.

“They shouldn't have signed the contract if they didn't fully understand,” said Accomando.

House of Tokyo is also being sent to collections for the certificates sold by Restaurant.com, even though they never got any money out of it.

Restraunt.com let Joell Lasley transfer her certificates to a different restaurant. However, it seems that deal fell through too.

“A few days later, they sent me an email saying ‘We regret to inform you that Southport Bar and Grill has canceled their contract and we'll let you choose another one yet again,’” said Lasley.

Accomando insists the company is not doing a bait and switch plan. * * *

Bogard said honoring all of the certificates would ruin them. It would be like giving away about $30,000 worth of free food.

“It’s destroyed our reputation,” said Bogard. “Some really loyal customers have purchased them and used them and now they're angry.”

It sounds like both those who buy the Restaurant.Com certificates and the small restaurants who are convinced to sign contracts with Restaurant.Com without fully understanding the implications may have cause to complain.

A reader who watched the Fox 59 broadcast sent this:

These little restaurants do not know what they are getting themselves into -- they don't understand they aren't getting money (the idea is that they will get repeat business) and they don't insist on putting on limits. It almost drove a little New Orleans type restaurant here in Avon out of business last year for that very reason and I know a number of the other non-chain places have just refused them. They cannot handle the volume, especially when it costs them money!

Posted by Marcia Oddi on Monday, January 16, 2012
Posted to Indiana Law

Law - "’60 Minutes’ got math prodigy story from IndyStar"

National columnist Jim Romensko writes today in a story that begins:

Last night Morley Safer profiled 13-year-old math prodigy and college sophomore Jake Barnett. He’s from Indianapolis, so I figured the story originated in the Star. A Google search proved me right.

Dan McFeely’s piece — “Genius at work: 12-year-old is studying at IUPUI” — ran in the Indianapolis Star on March 20, 2011.

Remarkably, the March 20, 2011 story is still available via the Star.

Posted by Marcia Oddi on Monday, January 16, 2012
Posted to General Law Related

Ind. Law - Right to defend against unlawful entry amendment has hearing tomorrow

SB 1 will be heard tomorrow in the Senate Correction Committee at 9 AM in Rm. 130. According to this WRTV 6 report:

The bill's sponsors said it is narrowly crafted to set out the rights of homeowners.

The bill would allow homeowners to use force if the police officer is unidentified or not acting on official duty.

Officers would be allowed to enter a home when chasing a criminal suspect or when they believe someone inside is in danger.

The Indiana Supreme Court in October reaffirmed its earlier ruling after an outcry from 71 state lawmakers, the attorney general and public opinion regarding the case of Richard Barnes in Vanderburgh County.

In that case, Barnes yelled at police and blocked them from entering his apartment to investigate a domestic disturbance. The man shoved a police officer who entered anyway and was shocked with a stun gun and arrested.

Barnes argued on the basis of common law that he had the right to protect his property, legally termed as his "castle," from what he considered unlawful entry.

The Supreme Court said that its ruling was based on Indiana law and that legislators can consider changing the law if they don't feel the ruling was appropriate.

Here is a list of some of the earlier ILB entries on the decision in Barnes v. State.

Posted by Marcia Oddi on Monday, January 16, 2012
Posted to Ind. Sup.Ct. Decisions | Indiana Law

Ind. Law - "Chilling CAFO lawsuits"

This Fort Wayne Journal Gazette editorial this morning is about "nuisance" lawsuits. First, a caveat. If you look up the word in the dictionary, it has two definitions:

  1. A person, thing, or circumstance causing inconvenience or annoyance.
  2. An unlawful interference with the use and enjoyment of a person's land.

From today's editorial, which I find somewhat confusing:

Proposed legislation in the Indiana General Assembly appears crafted to give agricultural businesses special protections and could discourage citizens from exercising their right to access the courts.

House Bill 1091 was authored by Rep. William Friend, R-Macy, and co-sponsored by Rep. Donald Lehe, R-Brookston. It requires courts to award agricultural operations – such as confined animal feeding operations, or CAFOs – that are the subject of a nuisance lawsuit with payment of their legal fees. The proposed bill passed its second reading in the Committee on Agriculture and Rural Development on Friday.

One person who could benefit is Friend, a CAFO owner. He said he proposed the legislation because “one of the recurring problems that comes up over and over is nuisance lawsuits. People try to delay or deter or cause extreme legal fees or just discourage someone who is trying to expand a facility, open a business or just exercise their private property rights.”

The problem is, when it comes to discouraging nuisance lawsuits against any business, “there are already laws on the books that apply to everyone,” said Kim Ferraro, water and agricultural policy director for the Hoosier Environmental Council. “It’s unnecessary and simply serves to frighten people. It gives the CAFO industry special protection.”

State law already allows awarding legal fees in the event of a frivolous lawsuit.

Ferraro said agricultural businesses, including CAFOs, are also protected specifically by the Indiana Right to Farms Act, which shields farmers from nuisance lawsuits.

Friend said his bill would change the law for CAFOs so that awarding legal fees is not left to the court’s discretion. “This one says the court shall award reasonable legal fees,” he points out.

Friend said under this bill, “if you persist in carrying out a lawsuit, you better be very certain you have good reason. … The legal system is there for everyone. I don’t want to discourage that.”

Unfortunately, if the bill becomes law it likely would discourage people from exercising their legal rights.

“This sends a strong message to trial judges that CAFOs are to be protected,” Ferraro said. “It adds a whole other level of threat to taking action against a CAFO. It would have a chilling effect.”

Friend’s bill, as well as one proposed by Sen. Travis Holdman, R-Markle, indicates some state lawmakers want to give large agricultural operations preferential treatment. Holdman’s bill would make it illegal to surreptitiously take video while visiting an agricultural operation.

“They are videotaping when they see something bad going on – even if the farmer is working to rectify it,” Holdman said.

Rather than hold an agricultural operation accountable if it is doing something wrong, Holdman’s bill would punish the person filming the infraction.

Ferraro rightly observed that “it’s a real dangerous precedent to set to protect one business above others.

The bill, HB 1091, is eligible for Third Reading in the House. Here is the current digest:
Agricultural operations. Provides that if a court finds that an agricultural operation that is the subject of a nuisance action was not a nuisance and that the nuisance action was frivolous, initiated maliciously, or groundless, the court shall award the expenses of litigation, including reasonable attorney's fees, to the defendant in the action. Provides that a person who: (1) manufactures methamphetamine; or (2) grows or harvests marijuana; on agricultural land while committing a civil or criminal trespass commits a Class A infraction.

Posted by Marcia Oddi on Monday, January 16, 2012
Posted to Indiana Law

Ind. Law - Right of publicity law changes proposed

The House Judiciary Committee tomorrow, Jan 17th (upon adjournment in Rm.156-D) will hold a hearing HB 1133, which appears to expand Indiana's current rights of publicity statute, IC 32-36-1-8. The ILB has had a number of interest entries on this topic:

Posted by Marcia Oddi on Monday, January 16, 2012
Posted to Indiana Law

Ind. Courts - Dr. Martin Luther King Jr. Day

State, federal, local courts and government offices are closed today, Monday, Jan. 16 in observance of Dr. Martin Luther King Jr. Day.

Posted by Marcia Oddi on Monday, January 16, 2012
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, wouldn't this be a wonderful time for you to become an ILB supporter for 2012! Please think about supporting the ILB!

From Sunday, January 15, 2012:

From Saturday, January 14, 2012:

From late Friday, January 13, 2012:

Posted by Marcia Oddi on Monday, January 16, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/16/12):

Next week's oral arguments before the Supreme Court (week of 1/23/12):

Thursday, January 26th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/16/12):

Thursday, January 19th

Next week's oral arguments before the Court of Appeals (week of 1/23/12):

Thursday, January 25th

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

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


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

Posted by Marcia Oddi on Monday, January 16, 2012
Posted to Upcoming Oral Arguments

Sunday, January 15, 2012

Ind. Decisions - "What qualifies, under the Indiana Code, as a regulated drain?"

The Court of Appeals issued a decision in the case of Clark County Drainage Board and Clark County Board of Commissioners v. Robert Isgrigg on Wed., Jan. 11, 2012. Braden Lammers of the Jeffersonville News & Tribune reported on the outcome in this Jan. 12, 2012 story headed "Court partially overturns ruling on drainage suit: Four-year battle between Isgrigg and drainage board may finally be finished." From the lengthy story:

JEFFERSONVILLE — You win some, you lose some.

That was the ruling from Indiana’s State Court of Appeals on Wednesday when it issued judgement on a case that has pit former Clark County Surveyor Bob Isgrigg against the Clark County Drainage Board and Commissioners for nearly four years.

At issue were three points relating to a 2010 ruling by then Clark County Superior Court No. 1 Judge Vicki Carmichael, on a lawsuit brought against the county by Isgrigg. In the end, Wednesday’s decision from the Court of Appeals upheld part of Carmichael’s ruling and overturned another portion of it.

Perhaps the biggest point of contention in Isgrigg’s suit was what qualifies, under Indiana Code, as a regulated drain.

The Court of Appeals overturned Carmichael’s 2010 ruling which determined drains within the Sunset Hills subdivision in Charlestown qualify as regulated drains. Furthermore the court found the drainage board was not in violation of state law when it began drainage work there in 2007 without Isgrigg’s participation, as Carmichael had determined.

Two other issues considered by the Court of Appeals stemming from the same case were also included in Wednesday’s ruling.

One of those decisions affirmed Carmichael’s ruling that the drainage board did violate state law when it removed an obstruction from Lancassange Creek without Isgrigg’s participation.

The Court of Appeals also rescinded Carmichael’s opinion that Isgrigg be awarded court costs he incurred during the three-year long lawsuit he filed. * * *

The ruling issued Wednesday agreed that the drainage board did not violate any laws for the plan it implemented in Sunset Hills.

The argument centered around whether or not the plans involved regulated drains. If there were no regulated drains, the drainage board was authorized by local ordinance and Indiana’s Home Rule Act to complete the drainage plan in the subdivision. However, if it was determined that the drainage board did exercise authority over a regulated drain in the Sunset Hills project they would have acted illegally by not allowing Isgrigg to participate in the project.

According to the ruling, a regulated drain requires an open channel and the drainage board’s evidence shows that there were no open channels in the Sunset Hills subdivision either before or after its involvement. The Indiana Code unmistakably defines a regulated drain as an “open channel.”

As a result the appeals court found, “the trial court erred when it concluded that either project was based on or resulted in the establishment of a regulated drain, and that the trial court erred when it granted summary judgment to Isgrigg with respect to the Sunset Hills project,” the ruling read.

The second portion of the ruling was affirmed in favor of Isgrigg, with the drainage board admitting it violated Indiana Code.

“Isgrigg is entitled to summary judgment as a matter of law on his claim that the drainage board acted contrary to the provisions of Indiana Code ... when it engaged in the Lancassange Creek project without the participation of the County Surveyor,” the ruling read.

As a result of the split ruling in the appeals court decision, court costs previously awarded to Isgrigg were rescinded.

For background, see both Thursday's story and these earlier ILB entries:

Posted by Marcia Oddi on Sunday, January 15, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Three Monroe Circuit Court judges whose terms expire at the end of 2012 intend to seek another six-year term."

So reports Laura Lane in the Jan. 11, 2012 Bloomington Herald-Times. "They are: Judge Marc R. Kellams, Judge Frances (Francie) Hill and Judge Teresa D. Harper. Kellams and Hill are Republicans; Harper, a Democrat." If you subscribe to the H-T, access the rest of the story here.

Posted by Marcia Oddi on Sunday, January 15, 2012
Posted to Indiana Courts

Ind. Law - “I figure authors missed the day (in law school) when the First Amendment was discussed”

That is a quote in the Bloomington HeraldTimes today from Sen. Vi Simpson. As Dawn Hewitt reports in the story:

Simpson said she has announced an award, complete with a trophy, that she intends to give to the author of the “most interesting” bills of the session. Her nominees are the “Star-Spangled Banner” bill, which requires standard singing of the national anthem, and a bill to require reciting of the Lord’s Prayer in public school classrooms.

Posted by Marcia Oddi on Sunday, January 15, 2012
Posted to Indiana Courts

Ind. Courts - New judge will begin work with a murder trial

From the Walker/Roysdon Report in Sunday's Muncie Star-Press:

Alan Wilson, recently appointed as judge of Delaware Circuit Court 2 by Gov. Mitch Daniels, said last week he intends to be sworn in on Friday, Jan. 27.

Wilson, a Republican and former Muncie mayor, won't be breaking in his gavel in a low-key fashion.

His second full week as judge will begin with a murder trial.

Posted by Marcia Oddi on Sunday, January 15, 2012
Posted to Indiana Courts

Ind. Courts - "Valpo law students help 'right an injustice'"

Susan Emery had this story in Saturday's NWI Times. Some quotes:

VALPARAISO | A team of Valparaiso University law students has succeeded in restoring a client's constitutional rights in a case before the Indiana Court of Appeals.

Mario Allen was convicted of attempted robbery and robbery in LaPorte Superior Court in May 2004. Determined by the court to be a habitual offender, he was sentenced to 45 years.

A public defender was appointed to represent Allen on appeal, but the attorney withdrew, citing a conflict of interest. No substitute counsel was ever appointed.

In August 2008, Allen filed a petition for permission to pursue a belated appeal. This was denied by the Court of Appeals.

Allen then sent a letter to the Valparaiso University Law Clinic seeking help. The clinic reviewed the case and decided to pursue it, law professor David Vandercoy said. * * *

In December, the Court of Appeals ruled Allen was denied assistance of appellate counsel and ordered the trial court to appoint counsel to represent him on appeal. * * *

The clinic's involvement in the case may not end there, however.

"Ideally we'd like to see a new trial," law professor Geneva Brown said.

Vandercoy said the team is considering a petition to the Indiana Supreme Court to review the Court of Appeals' decision. Law student Marlena Ragland would handle any potential case, he said.

At issue is that the Court of Appeals denied Allen's petition in 2008, then granted it in 2011. The denial allowed more time to pass before Allen could pursue his appeal, which ultimately could affect the success of his appeal, Vandercoy said.

"His trial was seven years ago," Vandercoy said. "The attorney has moved on. The court will say the trial can be reconstructed through transcripts, (but it's not the same)."

Here is the Court of Appeals Dec. 29, 2011 ruling in Mario A. Allen v. State of Indiana.

Posted by Marcia Oddi on Sunday, January 15, 2012
Posted to Indiana Courts

Ind. Courts - "'What are you guys doing? I’m a physician,' he reportedly told the officers"

That quote from this Jan. 14th story by Archie Ingersoll of the Fort Wayne Journal Gazette - the story began:

FORT WAYNE – For eight miles, squad cars with their lights and sirens blazing followed Dr. Charles J. Whalen on Interstate 69, but the Fort Wayne oncologist just kept speeding and swerving, according to court records.

Once Whalen’s Chevrolet Equinox was finally stopped and he was wrestled into handcuffs, authorities determined through a blood test that the doctor had marijuana, methamphetamine and amphetamine in his system, court records said.

Posted by Marcia Oddi on Sunday, January 15, 2012
Posted to Indiana Courts

Ind. Law - "Illinois man documents tombstones"

Interesting, long story today from Tracy Moss of the Champaign, Ill News-Gazette about Michael Coan, a "headstone hunter" who, in 2006:

... started a quest to photograph every tombstone in Vermilion County, and for the most part has accomplished his task, except for the occasional old family plot someone will bring to his attention.

He’s photographed the headstones in more than 120 cemeteries in Vermilion, taking more than 220,000 pictures, and has branched out to cemeteries in other counties, including Champaign, Edgar, Iroquois, Douglas and Ford counties in Illinois and cemeteries in Vermillion and Warren counties in Indiana. Altogether, he’s taken more than 400,000 pictures of headstones in the Illinois-Indiana area.

And he’s in the process of posting all those pictures on his website, vermilioncounty.info.

“It’s just a hobby,” he said.

But preserving historical information that could be lost if a headstone decays or is destroyed is one purpose of his hobby, Coan said. And by posting them online, he’s also providing a tool that can help genealogical researchers. * * * *

He also posts the GPS coordinates of the cemeteries, so others can find them on their own, particularly the older, smaller and more rural cemeteries. He said the coordinates are important, because many of the smaller, older ones are in the middle of wooded or overgrown areas and can be lost. * * *

He’s also working, he said, on a project with the Illiana Genealogical and Historical Society to update all their cemetery readings and locator books * * * [and he] said he’s also working with the Illinois chapter of the Daughters of the American Revolution to locate local graves of veterans of the War of 1812.

Another interesting story about a similar effort, in Kentucky, was posted in the March 22, 2009 ILB, headed "Church, genealogist in tussle over cemetery information."

Two bills have been introduced this year in the Indiana General Assembly relating to old cemeteries, HB 1015, which "provides immunity from civil liability to landowners who grant a decedent's family members and descendants access to cemeteries that are located on the landowners' properties and subject to property tax assessment as cemetery lands," and HB 1034, "Historic cemeteries. Expands the qualifications of a cemetery that is eligible to be maintained by the county cemetery commission to include cemeteries that were established before 1875 or contain a Civil War veteran." The latter has been approved by the House local government committee.

Posted by Marcia Oddi on Sunday, January 15, 2012
Posted to Indiana Law

Ind. Law - "At least the police know where these sex offenders live"

That was the headline to this editorial on Jan. 11, 2012 in the Evansville Courier & Press, a response to this earlier editorial and story in the Fort Wayne Journal Gazette. From the C&P:

In the aftermath of the horrid murder of a 9-year-old girl who lived in a Fort Wayne, Ind., mobile home park that housed numerous registered sex offenders, the Courier & Press reported Sunday that a motel here is housing 24 sex offenders, including six who were recently paroled.

The Fort Wayne case shocked Hoosiers last month, although it should be pointed out that the accused there was not a sex offender. Still, the case opened eyes to the fact that state laws and parole rules have left sex offenders with few places to live, once they are released from prison. As such, the Evansville situation, which has offenders living at the Woodcreek Inn & Suites on U.S. 41 North may be the best option for a bad situation. Parole officers call the motel a solution of last resort.

An AP story on the Evansville situation is headed "Some Indiana motels become havens for sex offenders." A quote:
EVANSVILLE, IND. — Parole officers are turning to motels as places to house convicted sex offenders whom state residency restrictions leave with nowhere else to go after they are released from prison.

Twenty-four sex offenders live at the Woodcreek Inn & Suites in the Ohio River city, according to the Indiana Sex and Violent Offender Registry. The Evansville Courier & Press reports that the Evansville Parole Office pays the rent for six of the offenders who have agreed to repay the money. It’s one of 15 such deals statewide, all but two involving motels.

Posted by Marcia Oddi on Sunday, January 15, 2012
Posted to Indiana Law

Saturday, January 14, 2012

Ind. Courts - Bad headline, bad lede

From ABC News this evening, a story headed "Federal Judge Upholds Indiana's School Voucher Law, that begins:

A federal judge in Indiana has upheld the nation's largest school voucher law and rejected opponents' arguments the measure unconstitutionally uses taxpayer money to support religion.

Marion Superior Court Judge Michael Keele's ruling Friday ...

Posted by Marcia Oddi on Saturday, January 14, 2012
Posted to Indiana Courts

Ind. Law - Court's legislative update for 2012

The Indiana Court's legislative update for the 2012 session has been updated to include week #2. Scroll though to see the bills currently under consideration.

Posted by Marcia Oddi on Saturday, January 14, 2012
Posted to Indiana Courts

Stage collapse - Legislative approaches to providing additional funds

From Gov. Daniels' state of the state message this past week:

We should deepen the state’s response to the terrible tragedy that befell so many at last summer’s Indiana State Fair. A catastrophe so singular merits unique treatment, and I hope you will augment the amounts already provided the victims and their families by the state and private donors.
Rep. Ed DeLaney has introduced HB 1234. The digest: "Tort claims. Increases the liability cap in the tort claims act to $1,300,000 per person and $22,000,000 per occurrence for causes of action accruing on or after July 1, 2011."

The Indiana state fair state collapse occurred Aug. 13, 2011. DeLaney's bill would raise the current limits in the law, as of July 1, 2011, from $700,000 per person to $1,300,000 per person. And it would raise the total per occurrence from $5 million to $22 million.

Kendra Rhonemus of the Franklin College Statehouse File reported Friday:

The chairman of the Indiana House Ways and Means Committee said Friday that victims of the Indiana State Fair state collapse could get some additional funds soon, but he would not say how much the help might be.

“There may well be a major amendment or a bill that will deal with that,” said Rep. Jeff Espich, R-Uniondale. “It’s got to happen within the next two weeks.”

The state fair victims already have received all the funds the $5 million liability cap in place allows, but Gov. Mitch Daniels has said that is not enough.

"Ed’s idea might be nice, but it’s not logical,” Espich is quoted in the story as saying, noting that "The claims of the injured were $4.1 million." The story continues:
DeLaney’s bill would change the law and have an impact on all future accidents in which the state takes responsibility, Espich said.

Espich is instead focused on the state fair victims and giving them individually the amount the law would have allowed had there been no overall cap.

“We can actually make the individual death settlement at $700,000 and pay 100 percent fully,” Espich said.

Posted by Marcia Oddi on Saturday, January 14, 2012
Posted to Stage Collapse

Ind. Law - Ind. sentencing law overhaul dead

So reports the AP's Charles Wilson on this brief story today -- some quotes:

Legislators stung last year by county prosecutors who opposed a sweeping plan to overhaul Indiana's criminal sentencing scheme won't push the issue in this year's General Assembly. * * *

This year prosecutors say their concerns are largely eased. But sheriffs are worried that an attempt to reduce crowding in state prisons could aggravate overpopulation in their jails.

Posted by Marcia Oddi on Saturday, January 14, 2012
Posted to Indiana Law

Friday, January 13, 2012

Ind. Decisions - Trial judge upholds school voucher law

In a 10-page ruling issued late today in the case of Meredith v. Daniels, Marion Superior Judge Michael D. Keele wrote:

Plaintifis have brought this litigation challenging the constitutionality, under several provisions of the Indiana Constitution, of the Choice Scholarship Program (CSP) enacted by the 2011 Indiana General Assembly. The matter is now before the Court on Defendants' Motion to Dismiss, Defendant-Intervenor's' Motion for Judgment on the Pleadings, Plaintiffs' Motion for Summary Judgment and Defendant-Intervenors' Motion for Summary Judgment.

Upon consideration of the submissions and arguments of counsel, this Court determines that this case is more appropriately decided on summary judgment, and the Court finds that there is no genuine issue as to any material fact and that Defendants and Defendant-Intervenors are entitled to judgment as a matter of law on all of Plaintiffs' claims for the reasons set forth below.

From Attorney General Zoeller's press release:
INDIANAPOLIS – Today a Marion County court ruled in favor of the State and rejected a legal challenge to the constitutionality of Indiana’s new choice scholarships law, sometimes called the school vouchers law, House Enrolled Act 1003 (Public Law 92). Marion County Superior Court Judge Michael Keele today ruled in favor of the State on all of the plaintiff’s claims.
Here is a copy of today's opinion.

For background, start with this ILB entry from Aug. 15, 2011.

Posted by Marcia Oddi on Friday, January 13, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Bill would give county councils more control of funds generated by user fees"

Use of probation fees has been a subject of contention between county government and county courts. Today Ben Zion Hershberg of the Lousville Courier Journal reports on SB 160:

Indiana Senator Jim Smith, R-Charlestown, has introduced a bill in the General Assembly intended to tighten the control county councils have of money generated by fees in some departments.

A major element of Senate Bill 160 is language that says county councils have the authority to determine how much money is appropriated from user fees paid by probationers to support court probation departments, and it says the money can be used to pay “part or all” of probation employees’ salary.

The language would replace sections of the current legislation that say the probation fees can be used only to “supplement” probation salaries and, according to an Indiana Supreme Court decision in a Clark County dispute, gave the judges more control over how the probation fees can be used. * * *

Smith said he is anticipating a healthy debate about the legislation, with powerful groups like the states’ sheriffs and judges likely to be on one side and county council members and perhaps other county officials on the other.

He believes there’s a good chance the legislation will be enacted at a time when county governments generally are seeking whatever resources they can find to weather a tough economy, Smith said.

The bill should be discussed by the Senate Local Government Committee within a week an a half, Smith said.

“It will get a lot of attention,” said David Bottorff, executive director of the Association of Indiana Counties.

The 2007 Supreme Court decision in Clark County Council and Clark County Auditor v. Daniel F. Donahue, Cecile A. Blau, Vicki Carmichael, and Steven M. Fleece is also discussed in today's story.

Posted by Marcia Oddi on Friday, January 13, 2012
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - Private prisons' populations

Indiana's private prison population rose from 936 in 1999 to 2,817 in 2010. That from a table on p. 4 of this 25-page report, Too Good to be True: Private Prisons in America.

More here
from the Sentencing Law blog.

Posted by Marcia Oddi on Friday, January 13, 2012
Posted to Indiana Government

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

In Harris v. Warrick County Sheriff's Dept. (SD Ind., Young), a 10-page opinion, Judge Sykes writes:

The Warrick County Sheriff terminated Kevin Harris’s probationary employment as a deputy sheriff based on violations of standard operating procedures, failure to follow orders, and insufficient commitment to the job. Harris sued the Sheriff’s Department under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.) and 42 U.S.C. § 1981, claiming he was fired because he is black. The district court entered summary judgment for the Department and Harris appealed.

We affirm. Harris’s circumstantial evidence of discrimination
falls far short of supporting an inference that he
was terminated because of his race. No evidence suggests
that the sheriff or other decision-makers participated
in any of the alleged racially charged behavior—
watching Blazing Saddles in the workplace and
giving Harris racially tinged nicknames. Finally, although
Harris identified several white deputies who were retained
despite performance problems during their probationary
employment, their misconduct was not comparable
to his, so they cannot be considered similarly
situated.

Posted by Marcia Oddi on Friday, January 13, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Warrick Drug Court offers a second chance at life"

Nathan Blackford posted this story yesterday afternoon on the Evansville Courier & Press website. A few quotes:

The program, which started in 2006, has produced 91 graduates and has, according to participants and court officers, been remarkably effective at giving drug and alcohol offenders a second chance at life. * * *

The offenders in the drug court are hand-selected by the staff members. Each participant must meet certain criteria, and also must get the approval of Warrick County Superior Court Judge Keith Meier. The program was Meier's idea, and he continues to oversee it.

"You don't just get into this program because you say you want in," said Meier. "The people are assessed pretty thoroughly in terms of addiction and mental health, and we look at their criminal history. Then the drug court team members will vote on whether someone comes in. It is a pretty daunting intake process." * * *

The Warrick County Drunk Driving and Drug Court is, according to Meier, truly unique. Rather than use probation officers to oversee the program, Meier hired licensed clinical social workers. Some of those people are past addicts themselves. And the court focuses on treatment for the participants rather than punishment.

"The one thing that distinguishes our program from all of the others that I have seen is that we are clinically based," said Meier. "I think that is the reason for our success."

The success of the program is hard to argue with when you look at the numbers, Meier said. To date, the drug court has saved more than $12 million in incarceration costs and only 12 percent of the program's graduates have been sent back to jail. Nationally, the recidivism rate of people coming out of prison is around 80 percent.

"The idea of the program is based upon some solid research," said Meier. "People who have substance problems, treatment in the traditional justice system has not worked. In fact, there are a number of studies that going to prison actually makes them worse. So this drug court program is based on a lot of hands-on attention."

There is much more in the story.

Posted by Marcia Oddi on Friday, January 13, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Utility Center, Inc., d/b/a Aqua Indiana, Inc. v. City of Fort Wayne, Indiana, a 23-page opinion, Chief Judge Robb writes:

Utility Center, Inc. (the “Company”) operates a public utility in Northeast Indiana. The City of Fort Wayne (the “City”) condemned a portion of the Company’s property, for which the City of Fort Wayne Board of Public Works (the “Board”) determined the amount due to the Company. The Company appealed the Board’s determined amount to the trial court. Ruling on motions by the City, the trial court ordered that it will review the Board’s determined amount under the abuse of discretion standard and that the Company is not entitled to a jury trial. In this interlocutory appeal, the Company raises the issues of whether, under the United States Constitution, the Indiana Constitution, and Indiana statutory law, the trial court may decline to hold a jury trial and limit its review to the abuse of discretion standard. Concluding that the trial court can and should decline to hold a jury trial and limit its review as such, we affirm. * * *

We conclude that judicial review of an administrative determination of just compensation should be limited to the consideration of whether there is substantial evidence to support the agency’s finding and order and whether the action constitutes an abuse of discretion, is arbitrary, capricious, or in excess of statutory authority as revealed by the uncontradicted facts. As such, judicial review is limited to the agency record and other evidence which suggests the agency lacked authority to render its decision. We further conclude that where a municipality actively seeks to avoid the appearance of impropriety and there is no evidence of actual impropriety, due process rights are not violated when a municipality’s employees serve as advocates and different employees of the same municipality serve as decision-makers in administrative proceedings.

Accordingly, the factual circumstances of this case lead us to affirm the trial court’s order declining to hold a jury trial and stating its intention to limit its review of the Board’s determination for an abuse of discretion.

NFP civil opinions today (2):

In the Matter of the Term. of the Parent-Child Rel. of J.H. & Ja.H.; and M.H. v. The Indiana Dept. of Child Services (NFP)

In Re: The Commitment of A.M. v. Community North Hospital / Gallahue Mental Health Services (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, January 13, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Indiana Association of Cities and Towns focus of FWJG inquiry

Following up on the lengthy story it published last Sunday, the Fort Wayne Journal Gazette today has an editorial headed "IACT’s sketchy secret status." Some quotes:

The strongest voice in the General Assembly for Hoosier cities and towns is governed by a board composed of publicly elected mayors and clerk-treasurers from across the state – but its finances are secret.

As Dan Stockman’s Sunday story explained, the Indiana Association of Cities and Towns is subject to an obscure designation by the Internal Revenue Service that considers the organization a government body that performs “an essential government function.”

But the group, well known among Hoosier public officials as IACT, is not a government body such as a City Council or township. So IACT is not subject to Indiana open meetings and records laws, nor are its finances open to scrutiny by state finance watchdog agencies – despite the fact that much of its revenue comes from taxes paid to municipalities, which in turn pay dues. * * *

“IACT offers a variety of opportunities for businesses to establish themselves as friends of and experts in municipal government,” according to the organization’s website. “IACT provides opportunities for businesses to sponsor conferences and events, offering valuable exposure to the municipal government market.”

Disclosure of financial ties is the best way the public has to judge the often-cozy relationships between special interests and public officials. But IACT’s current status means it doesn’t need to disclose anything.

Indiana lawmakers could consider subjecting IACT to the state’s open records and meetings law. Perhaps the best action would be for the IRS to reconsider how IACT and similar organizations in other states are governed. Making them non-profit agencies would be a designation that would offer much in the way of public disclosure.

IACT is generally a well-regarded organization, and no one is accusing it of unethical behavior. But as the lobbying organization for the state’s cities and towns, which use your taxes to finance it, IACT should be subject to at least some public scrutiny.

Posted by Marcia Oddi on Friday, January 13, 2012
Posted to Indiana Government

Thursday, January 12, 2012

Ind. Courts - "Angie's List sues upstart rival, alleges theft, fraud"

Bruce C. Smith has the story this evening in the Indianapolis Star. It begins:

Indianapolis-based consumer rating service Angie’s List filed a lawsuit against an upstart rival website accused of stealing thousands of consumer reviews and service provider reports.

In the suit filed in the U.S. District Court for Southern Indiana, Angie’s List claims two of the founders of New York City-based ClickandImprove.com fraudulently downloaded nearly 24,000 files.

“This information is the life-blood of Angie’s List’s business,” said the suit filed by Indianapolis law firm Ice Miller.

Before the suit was moved recently to federal court, a Marion County Superior Court judge approved a temporary restraining order in December to stop the New York company from using data mined from Angie’s website.

The suit, filed in state court by Angie's List, was removed to federal court by the defendant Click & Improve. Here is the docket report. Here is the Notice of Removal, filed by defendants.

Posted by Marcia Oddi on Thursday, January 12, 2012
Posted to Indiana Courts

Ind. Courts - "Justice Steven David should expect some resistance during his visit to Columbia City next week"

So reported Benjamin Lanka in this brief article in the Fort Wayne Journal Gazette's "Political Notebook" today.

Posted by Marcia Oddi on Thursday, January 12, 2012
Posted to Indiana Courts

Ind. Law - IndyStar looks at improving "StarWatch" webpage

StarWatch is the name for the IndyStar's investigative team and its website. The site attempts to provide links to back stories on, for example, the toxicology investigation, but looks to be incomplete on that topic. In addition, I see nothing at all about about the Duke series. And the list of investigators appears incomplete.

Today, Alex G. Campbell, who is I believe the newest member of the team, had a series of tweets, including:

  • Good people of Central Indiana: What would you like to see on a "StarWatch" webpage?

  • As in, what more would you like from The Star's investigative reporters beyond the stories that appear in print every now and again?

  • We're well aware that the current Star Watch page is, erm, shall we say lacking in a number of areas.

  • And we have a wee mandate to make it no longer quite so terrible. In fact, maybe we can even make it a good, worthy page.

  • Point 1 is to be user-friendly. As in, make it much easier to access work that we've been doing, and in particular, ongoing work.

  • So if Tim Evans comes out with yet another Toxicology story, finding previous Toxicology stories won't be an investigation in and of itself.

  • Another major point is to make our investigations more collaborative, and make readers feel like they're co-investigating.

  • So we're kicking around some ideas. One is to have a part of the page be devoted to Freedom of Information Act requests we've sent out.

  • It would have who we sent the to, for what, and how long it's taking for the agency to respond.

  • We couldn't do that for all our FOIA requests, for competitive reasons, but we're thinking there's a line we can walk.
To which Cory Schouten, a competitor, tweets: "I'd read that!"

Which reminds me of some news out of Chicago some time back. The Chicago Sun-Times reported May 13, 2010:

In the name of “transparency,” Mayor Daley on Thursday got some measure of revenge against the investigative reporters who’ve made his life miserable by digging up dirt on the Hired Truck, city hiring and minority contracting scandals.

He revamped the city’s new website to include a log of all Freedom of Information Act requests. The list includes the name and organization of each applicant, documents demanded and dates the information was requested and is due to be released.

A new state law merely requires city departments to maintain such a log — not to post it on the Internet to tip investigative reporters about the trail being followed by competitors.

But Daley gleefully declared that he was going “above and beyond what’s required” in the interest of “transparency, openness and the free-flow of information.”

“If you want transparency in government, you have to have this. I’m sorry. This has nothing to do with [getting even with] the Sun-Times, Tribune, media or anything. This is what you want,” Daley said.

Corporation Counsel Mara Georges noted that some investigative reporters try to keep tabs on competitors by “FOI-ing other peoples’ FOIs.”

See more on that in this May 23, 2010 ILB entry.

Also see this Dec. 5, 2010 ILB entry that quoted an item from the Star itself:

Wall Street Journal reporter Rebecca Smith has earned the fear and respect of energy executives.

In 2001, she and WSJ reporter John Emshwiller broke story after story about the unsavory financial dealings at Enron that helped lead to the Houston company's collapse. The two later described their efforts in a booked titled "24 Days."

So what is Smith digging into lately?

You guessed it. She's looking into Duke Energy's Indiana operations and the scandal involving Scott Storms, former general counsel at the Indiana Utility Regulatory Commission, who has become embroiled in an ethics scandal and was later fired by Duke.

Smith has filed an open-records request with the IURC. "I'd like to get the copies of the e-mails cited in the Indianapolis Star and also chat with you about this hiring controversy," she wrote the IURC on Oct. 12.

Posted by Marcia Oddi on Thursday, January 12, 2012
Posted to Indiana Law

Ind. Decisions - Supreme Court reprimands Hancock County deputy prosecutor

In In the Matter of Nancy J. Flatt-Moore, an 8-page per curiam opinion in an attorney disciplinary action, the Court writes:

We find that Respondent, Nancy J. Flatt-Moore, engaged in attorney misconduct by surrendering her prosecutorial discretion in plea negotiations entirely to the pecuniary demands of the victim of the crime. For this misconduct, we find that Respondent should receive a public reprimand. * * *

This is not to suggest that prosecutors may not allow crime victims to have substantial and meaningful input into plea agreements offered to the offenders at whose hands they suffered. But by giving Big Rivers unfettered veto power in the plea negotiations leading up to the First Plea Offer, Respondent entirely gave up her prosecutorial discretion to enter into what would otherwise be a fair and just resolution of the charges. If a prosecutor puts the conditions for resolving similar crimes entirely in the hands of the victims, defendants whose victims are unreasonable or vindictive cannot receive the same consideration as defendants whose victims are reasonable in their demands. At very least, such a practice gives the appearance that resolution of criminal charges could turn on the whims of victims rather than the equities of each case.

Posted by Marcia Oddi on Thursday, January 12, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court disbars Rep. Delaney's attacker

In In the Matter of Augustus J. Mendenhall, a 4-page, per curiam opinion in an attorney disciplinary action where the respondent was pro se, the Court (Justice Sullivan not participating) writes:

We find that Respondent, Augustus J. Mendenhall, engaged in attorney misconduct by committing criminal acts, including attempted murder, that reflect adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer. For this misconduct, we find that Respondent should be permanently disbarred. * * *

Disbarment, which permanently strips an attorney of the privilege of practicing law in this state, is reserved for the most serious misconduct. * * *

The Court concludes that Respondent violated Indiana Professional Conduct Rule 8.4(b) by committing criminal acts, including attempted murder, that reflect adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer.

Respondent is already under an order of interim suspension effective July 5, 2010. For Respondent's professional misconduct, the Court now permanently disbars Respondent from the practice of law in this state effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26).

For background, see this list of earlier ILB entries.

Posted by Marcia Oddi on Thursday, January 12, 2012
Posted to Ind. Sup.Ct. Decisions

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

In U.S. v. Redmond (SD Ind., Young), a 25-page opinion, Judge Flaum writes:

This is the consolidated appeal of Charles Avery, Jr. and Michael Redmond. Avery pled guilty to crack cocaine distribution in violation of 21 U.S.C. § 841(a)(1); he appeals the district court’s denial of his request to withdraw his guilty plea, the calculation of the crack cocaine quantity attributed to him, as well as his sentence. Redmond pled guilty to crack cocaine distribution conspiracy in violation of 21 U.S.C. § 846 and appeals only his sentence. For the following reasons we affirm as to Avery, and issue a limited remand as to Redmond for the limited purpose of allowing the district court to reconsider his sentence in light of United States v. Corner, 598 F.3d 411 (7th Cir. 2010).

Posted by Marcia Oddi on Thursday, January 12, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Jason Quinn v. Accurate Builders (NFP)

Robert Weybright v. Kathy Weybright n/k/a Kathy Scaggs (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Thursday, January 12, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two today from the Supreme Court

In Thomas Dexter v. State of Indiana, an 8-page, 5-0 opinion, Justice Sullivan writes:

A jury convicted the defendant of Class A felony neglect of a dependent and found him to be a habitual offender, which resulted in a 30-year sentencing enhancement. An unsigned judgment of conviction was presented by the State to prove that the defendant in fact had been convicted of one of the predicate felonies. We reverse the defendant’s habitual-offender sentenc-ing enhancement and hold that an unsigned judgment is not sufficient to prove beyond a reasonable doubt the fact of a prior conviction. We also hold that the Double Jeopardy Clause of the Fifth Amendment does not bar the State from retrying the defendant on the habitual-offender enhancement. * * *

[After the Court of Appeals affirmed the trial court] Dexter sought transfer on his claim that the evidence was insufficient to support the jury’s finding that he is a habitual offender; the State elected not to file a response. We granted transfer to consider this issue (without ordering oral argument), Dexter v. State, 950 N.E.2d 1212 (Ind. 2011) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A). We summarily affirm the opinion of the Court of Appeals in all other respects. App. R. 58(A)(2). * * *

The State is correct that the trial judge’s failure to sign the 2000 judgment of conviction does not render that conviction void. * * *

But the State misunderstands Dexter’s claim. He is not challenging the validity of the alleged 2000 conviction. Rather, he is challenging only the collateral use of this document as proof of a prior conviction. His argument is that an unsigned order entering judgment of conviction is insufficient to prove existence of a past conviction beyond a reasonable doubt.

For almost 30 years, this Court has held that the State must introduce into evidence proper certified and authenticated records of the defendant’s prior felony convictions in order to prove beyond a reasonable doubt the existence of those prior convictions. * * *

The issue here is not whether the State submitted documentary evidence – it clearly did – but whether the documentary evidence presented was sufficient to establish the fact of the alleged 2000 conviction.

In view of our insistence that proper documentary evidence be submitted to prove the ex-istence of a prior conviction and the important rationale underlying that rule, we hold that a judgment must be signed by the trial judge to constitute substantial evidence of probative value sufficient to sustain a habitual-offender enhancement. Accordingly, the unsigned order of judgment was not probative of the fact of Dexter’s alleged theft conviction in 2000. * * *

We reverse Dexter’s habitual-offender enhancement and remand for resentencing proceedings consistent with this opinion.

In Keith M. Ramsey, M.D., The Methodist Hospitals, Inc. v. Shella Moore, a 10-page, 5-0 opinion, Justice David writes:
In medical malpractice cases governed by Indiana’s Medical Malpractice Act, a medical review panel renders an opinion on a case before the case proceeds to a trial court. The medical review panel chairman, among other things, sets a deadline for a plaintiff’s submission of evidence to the panel. If the plaintiff fails to adhere to the deadline, a defendant can file a motion with the appropriate trial court to dismiss the medical malpractice complaint pending before the panel. This motion initiates a preliminary-determination proceeding before the trial court — a proceeding unique to medical malpractice cases.

In this case, the defendants, a doctor and hospital, filed motions for a preliminary determination, requesting that the trial court dismiss the pending medical malpractice complaint due to the plaintiff’s dilatory conduct. The trial court issued an order, denying the request, and the defendants appealed. We hold that because the trial court’s order is not a final appealable judgment, there is no subject matter jurisdiction to hear the appeal. * * *

Having previously granted transfer, we now dismiss this appeal for lack of subject matter jurisdiction.

Posted by Marcia Oddi on Thursday, January 12, 2012
Posted to Ind. Sup.Ct. Decisions

Law - Still more on "Obama Tempts Fight Over Recess Appointments"

Updating this entry from Jan. 7, 2012, the Justice department has released its 23-page, Jan. 6, 2012 "Memorandum opinion for the Counsel to the President,' entitled "Lawfulness of recess appointments during a recess of the Senate notwithstanding periodic pro forma sessions." The short version:

The convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a “Recess of the Senate” under the Recess Appointments Clause. In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.
The conclusion:
In our judgment, the text of the Constitution and precedent and practice thereunder support the conclusion that the convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a “Recess of the Senate” under the Recess Appointments Clause. In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.
[More] The NY Times has just now posted this story by Charles Savage, headed "Memo Defends Obama on Recess Appointments."

[Updated 1/13/12
] Here is the updated version of Savage's story.

Posted by Marcia Oddi on Thursday, January 12, 2012
Posted to General Law Related

Ind. Gov't. - More on: "Judge Rules in Linda Belork Case"

Updating this ILB entry from Jan. 4, 2012, one of a long list of earlier entries concerning former Starke County Treasurer Linda Belork's removal, "Ted" of WKVI had this update yesterday, headed "Testimony to be Heard Today Concerning Restraining Order Against Linda Belork."

On August 11th of last year, Starke County Treasurer Linda Belork was served a restraining order removing her from conducting her duties as treasurer of the county. The restraining order was issued after the three county commissioners voted to remove her from office following the announcement to the public that there were irregularities in some 2009 accounts.

Since that time, the funds at question have been accounted for, and Mrs. Belork is seeking to be returned to office.

Today in Jasper County Circuit Court Judge John Potter’s courtroom in Rensselaer, testimony will be heard as to whether that restraining order should be lifted. This is the second time the parties have met in Potter’s court. In December, the Judge heard arguments as to the legality of Mrs. Belork being removed from office by the commissioners. Belork’s attorney had argued that only the Attorney General had the right to order such a removal. In his opinion, the Judge rejected that argument saying the commissioners were legally able to remove the office holder under the circumstances.

Posted by Marcia Oddi on Thursday, January 12, 2012
Posted to Indiana Government

Ind. Decisions - "Former Bicknell judge sentenced in Superior Court Two"

Updating a list of earlier ILB entries about former Bicknell City Court Judge David Andrew Moreland (who was not an attorney), Original Company has posted this brief item:

Former Bicknell City Judge Andy Moreland has been sentenced to a one and half year term for five counts of theft. Moreland received the sentence as part of a plea agreement in Knox Superior Court Two.

Moreland admitted to the five theft charges concerning mis-appropriated fees paid to the Bicknell City Court. The incidents happened while he was the Court's judge.

Moreland will serve the first six months of the sentence on electronic monitoring, with the remainder to be served on supervised probation. He was also fined $100 and court costs, and ordered to pay over $29,000 in restitution.

Posted by Marcia Oddi on Thursday, January 12, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Aide in prosecutor’s office back on job after pot run-in"

Updating this ILB entry yesterday on Matter of LeBeau, Rebecca S. Green of the Fort Wayne Journal Gazette reports today - some quotes:

Since August 2009, when David B. LeBeau was ticketed for marijuana possession and resigned his position, he has earned back his job with the prosecutor’s office, officials said.

LeBeau was ticketed for possessing less than 30 grams of marijuana, a Class A misdemeanor, by excise police officers outside a Dave Matthews Band concert at the Verizon Wireless Music Center in Noblesville. * * *

[H]e has been back with the county prosecutor’s office for the past 18 months, in the misdemeanor section. Chief Deputy Prosecutor Michael McAlexander said LeBeau had to undergo more scrutiny than most to get his job back.

Posted by Marcia Oddi on Thursday, January 12, 2012
Posted to Indiana Courts

Ind. Courts - More on: "Justice Shepard reflects on court achievements in final address"

Adding to this entry and this entry from yesterday, here is Charlie Wilson's AP story.

The Indianapolis Star has a nice series of 18 photos documenting the Chief Justice's final appearance before the General Assembly yesterday. Here is the accompanying story, reported by Chris Sikich.

Posted by Marcia Oddi on Thursday, January 12, 2012
Posted to Indiana Courts

Wednesday, January 11, 2012

Courts - "The Supreme Court gets the full-monty treatment"

Brilliant and normally staid attorney/journalist Dahlia Lithwick has a hilarious column today in Slate. I LOL at paragraph 2.

Posted by Marcia Oddi on Wednesday, January 11, 2012
Posted to Courts in general

Ind. Decisions - Three new disciplinary orders posted today, all dated Jan. 5, 2012

You may review them here. Notable is Matter of LeBeau, a 2-page order. Some quotes:

On August 1, 2009, Respondent was arrested for possession of marijuana. He later entered into a diversion program, pursuant to which he admitted the charge. At the time of his arrest, Respondent was a deputy prosecuting attorney for Allen County. He was discharged from his position shortly after his arrest. * * *

A lawyer's possession of marijuana involves a nexus with the chain of distribution and trafficking of illegal drugs. The impact of that association affects adversely the public's perception of the lawyer's fitness to be an officer of the court. See Matter of McNeil, 704 N.E.2d 114 (Ind. 1998). And "[w]hen the law is broken by one whose job it is to enforce the law, the public rightly questions whether the judicial system is worthy of respect." Matter of McFadden, 729 N.E.2d 137, 138 (Ind. 2000).

The parties propose the appropriate discipline for Respondent's illegal conduct is a public reprimand. The discipline the Court would impose for Respondent's misconduct would likely be more severe had this matter been submitted without an agreement. However, in light of the Court's desire to foster agreed resolutions of lawyer disciplinary cases and the mitigating factors in this case, the Court now APPROVES and ORDERS the agreed discipline.

For Respondent's professional misconduct, the Court imposes a public reprimand.

Posted by Marcia Oddi on Wednesday, January 11, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - How are committee reports handled in the House?

They seemingly pass across the front desk in the blink of an eye, but the process is covered by House Rules 127 and 128 [my emphasis]:

#127. House Action on Committee Reports.

The report, with amendments, if any, shall be acted upon by the House upon its submission. [ILB: Generally by voice vote. The House tends to group bills together, recall that this was an issue last year.]

#128. Minority Reports.

Any member of a committee reporting who voted against adoption of the committee report may submit a separate report which shall be filed with the committee report and shall be a minority report. In the event a minority report is submitted, the report adopted by the recorded vote of a majority of the committee members present at a duly constituted meeting of the committee shall be the majority report.

A minority report duly filed with the Clerk for action by the House shall be voted upon before the majority report and, upon adoption, becomes the committee report. If the minority report is rejected, the House shall then act upon the majority report.

Posted by Marcia Oddi on Wednesday, January 11, 2012
Posted to Indiana Government

Ind. Courts - "Chief Justice Shepard reflects on court achievements in final address"

Eric Bradner has posted this story re today's address on the Evansville Courier & Press website.

Posted by Marcia Oddi on Wednesday, January 11, 2012
Posted to Indiana Courts

Ind. Courts - More on: Marion County Will Elect At Least Four New Judges This Year

Updating this ILB entry from Monday, Jan. 9th, add one more name, Clayton Graham, who was added sometime after the initial posting -- he was not listed at 1:30 AM on Monday morning! The IBA site adds: "No biogaphical information received from the candidate."

Go to the Indianapolis Bar Ass'n. site for a home page leading you to the photos and bios of the 2012 candidates.

Posted by Marcia Oddi on Wednesday, January 11, 2012
Posted to Indiana Courts

Ind. Courts - "Never seen so many robed judges in one place "

Chris Sikich of the Indianapolis Star posted that comment and this photo this afternoon during the State of the Judiciary speech:

[Click photo to enlarge.]

Share photos on twitter with Twitpic

[More] Just made available, the text of Chief Justice Shepard's address.

Posted by Marcia Oddi on Wednesday, January 11, 2012
Posted to Indiana Courts

Courts - "Cheerleader punctures website’s immunity"

Patrick Murphy, in the blog Benchmarks, has an interesting post today that begins:

The Communications Decency Act presents a formidable obstacle for those attempting to sue website operators for objectionable posts by third parties. Yesterday, a federal judge in Kentucky showed the way for breaching the Act’s immunity provision in a defamation and invasion of privacy case brought by a member of the BenGals cheerleading squad.

According to U.S. District Judge William O. Bertelsman’s decision in Jones v. Dirty World Entertainment Recordings, a website operator is “responsible” for offensive content within the meaning of the Act when it in some way “specifically encourages” the development of “what is offensive about the content.”

The judge reached this conclusion in a lawsuit brought by Sarah Jones, who is a teacher at Dixie Heights High School in Edgewood, Kentucky. Jones also happens to be a member of the BenGals, the cheerleading squad for the Cincinnati Bengals.

Professional cheerleaders naturally attract a lot of attention, both wanted and unwanted. In 2009, Jones was appalled to find that her movements around Cincinnati were being tracked by visitors to the website “the dirty.com.”

Posted by Marcia Oddi on Wednesday, January 11, 2012
Posted to Courts in general

Courts - "SCOTUS rules against man convicted by eyewitness ID"

Mark Sherman's AP report begins:

WASHINGTON (AP) — The Supreme Court declined Wednesday to extend constitutional safeguards against the use of some eyewitness testimony at criminal trials, despite concerns that eyewitness identification plays a key role in innocent people going to prison.

In a case dealing with a narrow slice of the issue of identifying a suspect, the court voted 8-1 to uphold the theft conviction of Barion Perry in New Hampshire state court.

Lyle Denniston of the SCOTUSblog has an opinion recap, complete with links. The case of Perry v. New Hampshire.

Posted by Marcia Oddi on Wednesday, January 11, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 6 today (and 5 NFP)

For publication opinions today (6):

In Dave's Excavating, Inc. and Liberty Mutual Insurance Co. v. City of New Castle, Indiana, a 27-page opinion, Judge Najam concludes:

The trial court correctly entered summary judgment that Dave’s is liable to the City for breach of the construction contract. Dave’s breached the construction contract when it refused to return to work after receiving orders to do so. The court also correctly entered summary judgment that Liberty Mutual is liable to the City for Dave’s’ breach as surety on the performance bond. The City complied with its obligations under the performance bond. Moreover, Liberty Mutual specifically directed the City to mitigate its damages, which it did by hiring another contractor to complete the Project. Finally, Liberty Mutual has not shown that the City failed to comply with the contract in seeking attorney’s fees, and the trial court did not err when it granted summary judgment for the City on that issue. Affirmed.
In Anthony J. Rehl, Sr. and Bessie A. Rehl v. Robert V. Billetz and Joy A. Billetz, a 13-page opinion by Judge Brown, the panel affirms the judgment of the trial court in favor of Robert and Joy Billetz regarding an access easement.

Clark County Drainage Board and Clark County Board of Commissioners v. Robert Isgrigg - See this Sun., Jan. 15, 2012 summary of the opinion.

Charles Lawrence, Sr. v. State of Indiana

In Daniel E. Serban v. State of Indiana , a 10-page opinion, Judge Baker writes:

In this case, a highly-respected attorney took an unfortunate turn down a criminal path, stealing more than $200,000 from over one hundred clients who had placed their trust in him and to whom he owed immense fiduciary duties. He requests that we revise the eleven-year sentence that was imposed after he pleaded guilty to Corrupt Business Influence,1 a class C felony; and Theft,2 a class D felony. Insofar as stealing from his clients injured not only the clients, but also the legal profession into which the public should be able to place its trust, we emphasize the gravity of these offenses. Moreover, this attorney used his professional accomplishments to place himself in a position of trust so that he could victimize his clients. Accordingly, we decline to revise his sentence.

Appellant-defendant Daniel E. Serban appeals his eleven-year aggregate sentence, arguing that it is inappropriate in light of the nature of the offenses and his character. Finding that Serban has failed to demonstrate that his sentence is inappropriate and noting that the State did not cross-appeal for a longer sentence, we affirm the decision of the trial court.

In Nicholas Williams v. State of Indiana, a 15-page opinion, Judge Crone writes:
It seems obvious that the confidentiality provisions of Indiana Code Section 35-48-7-11.1 were enacted to uphold the protections of the physician-patient privilege and the pharmacist-patient privilege. Where, as here, a patient seeks to waive those privileges for the purpose of exercising his or her constitutional right to present a complete defense to charges in a criminal case, both the rationale for and the [Indiana Board ofPharmacy's] interest in keeping the patient's prescription records confidential evaporate. * * * Therefore, we conclude that the trial court abused its discretion in granting the Board‟s motion to quash Williams‟s subpoena and reverse and remand for further proceedings consistent with this opinion.
NFP civil opinions today (3):

Arnold W. Cook v. Consolidated Roofing, Inc. (NFP)

Vincent Barrett and Sarah Barrett v. City of Logansport, Indiana; Michael Nicoll, in his capacity as Sexton of Mount Hope Cemetery; and James McDonald (NFP)

R.W. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (2):

Shandaleigha M. Tharp v. State of Indiana (NFP)

Diyon Evans v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 11, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Lake Council prepares to deny public defenders insurance coverage"

Bill Dolan reports in the NWI Times today:

CROWN POINT | The Lake County Council opened 2012 Tuesday by voting to end insurance benefits to 39 lawyers who represent indigent criminal defendants in local courts at public expense.

Council members approved on first reading an ordinance that redefines the county government health benefits plan to exclude public defenders, who work only part time for the county but receive insurance like full-time employees.

Judges previously have told council members the current arrangement allows them to retain a core of veteran attorneys. No other part-time county employees get such benefits. The county pays the $15,200 annual health care premium for the 39 part-time public defenders, which amounts to $592,800.

The council passed the measure only on first read. A second and final vote could take place as early as next month. If passed, the new plan wouldn't take effect for a year.

Posted by Marcia Oddi on Wednesday, January 11, 2012
Posted to Indiana Government

Ind. Law - "Indiana bill would cut off child support at 19"

From the Louisville Courier Journal today:

A bill that would change Indiana law so that parents don’t have to pay child support after a child turns 19 passed a Senate committee Tuesday.

Senate Bill 18
moved out of the Senate Correction, Criminal, and Civil Matters Committee on 7-2 vote.

The bill would require parents to pay support only until their children turn 19, with an exception for educational payments. Indiana law now requires child support payments until children turn 21.

“The regular, stipend weekly child supports would stop at age 19 instead of 21,” said Sen. Brent Steele, R-Bedford, the committee chair.

Steele said the measure would put Indiana in line with most other states.

“There are only three states in the union that continue child support to age 21,” Steele said. “The vast majority of them stop at 18.”

Mississippi and New York are the two other states that terminate child support at 21. Washington, D.C., does the same.

Posted by Marcia Oddi on Wednesday, January 11, 2012
Posted to Indiana Law

Ind. Law - More on: Lawyers in the news ...

Updating this ILB entry from Dec. 30th, "Sellersburg town attorney resigns following DUI arrest," Ben Zion Hershberg reports today in the Louisville Courier Times:

Sellersburg Town Attorney Perry McCall has resigned following a DUI arrest last month. * * *

McCall was arrested early Dec. 29 by an Indiana State trooper at U.S. 31 and Eastern Boulevard. A police-administered field test showed his blood-alcohol content at the time to be .19 percent, more than twice Indiana’s legal limit, the Clark County Sheriff’s Department said.

Because McCall declined to take a certified test, the results aren’t admissible in court, a sheriff’s department spokesman said.

McCall was arrested on a similar charge in May and in 2001.

Updating this ILB entry from Jan. 6, 2012, that was headed "Photo and bio of Ice Miller Lawyer arrested in Louisvillle no longer available ," the blog Above the Law, that broke the original story, had a new entry yesterday headed "The Real Deal on Courtney King’s Arrest," that discusses some comments it had received on the incident, including:
While we don’t currently have specific information to suggest there were racial undertones involved in King’s arrest, observers have stated that this was a simple case of overcharging. Many agreed with one commenter’s assessment: “This woman is guilty of bad judgment, and misunderstanding her leverage in dealing with cops, but I bet not much more.” Another commenter stated:

"If there was no actual violence here (as in, she didn’t slug one of the cops trying to arrest her), this seems like another case of wild overcharging. We’ve gotten to the point where the criminal law is so broad and vague that stumbling out of a bar and talking back to the cops can get you years in state prison, if the cop feels like screwing you over…."

The new entry also includes, on its second page, a response from Ice Miller on King's employment status.

Posted by Marcia Oddi on Wednesday, January 11, 2012
Posted to Indiana Law

Ind. Courts - CJ Shepard's final State of the Judiciary address today at 2:00 PM

From the release:

Chief Justice of Indiana, Randall T. Shepard, will address a joint session of the Indiana General Assembly for the annual State of the Judiciary. The formal update on the accomplishments and challenges facing the judicial branch will be held January 11, 2012.

You make watch it here at 2:00 PM.

Posted by Marcia Oddi on Wednesday, January 11, 2012
Posted to Indiana Courts

Tuesday, January 10, 2012

Ind. Gov't. - More on: What is next in Charlie White's case, now that Judge Rosenberg has stayed his order pending appeal?

As noted in this ILB entry last evening, the AG yesterday filed a Rule 56(A) Request for Emergency Transfer To The Supreme Court.

Here is a copy of the 7-page transfer petition, filed by the AG on behalf of the Recount Commission. (Recall there has been discussion that the Commission has not met recently as its membership is unclear.)

Here is a news release issued today announcing the filing. A quote:

In the ongoing litigation, the Attorney General's Office represents the Indiana Recount Commission only and does not represent candidate White. The commission's verified motion to transfer jurisdiction of appeal before consideration by the Indiana Court of Appeals was filed Monday in the Indiana Supreme Court, and an appeal brief will be filed at a later date.
As noted in last evening's ILB entry, White himself has not filed a Rule 56(A) petition.

Posted by Marcia Oddi on Tuesday, January 10, 2012
Posted to Indiana Government

Courts - SCOTUS "Supreme Court overturns New Orleans man's murder conviction"

Following up on these two earlier ILB entries on Smith v. Cain, Joan Biskupic's story today in USA Today begins:

The Supreme Court ruled Tuesday that a New Orleans man's murder conviction must be reversed because prosecutors failed to reveal that the sole eyewitness to the crime had earlier said he could not identify the killer. The decision was 8-1; Justice Clarence Thomas was the lone dissent.

Posted by Marcia Oddi on Tuesday, January 10, 2012
Posted to Courts in general

Environment - More on pollution in Indiana

Updating this ILB entry from Jan. 8th, citing an Indianapolis Star story headed "Is Bear Run coal mine putting Hoosiers at risk?" the Star today has an editorial headed "Too loose with mining rules." Some quotes:

[S]hould Indiana make a home for a coal mine that would be the largest east of the Mississippi River and the least regulated in the nation?

The Daniels administration and Peabody Energy, owner of Bear Run Mine, insist it will be a safe source of economical energy. Others, including environmentalists, academic experts and the U.S. Environmental Protection Agency, say there's no justification for monitoring Bear Run less stringently than mines in 27 other states.

Also, see this Jan. 9, 2012 story from the Chesterton Tribune, which begins:
The Indiana Department of Environmental Management’s (IDEM) most recent report of the state’s Toxics Release Inventory (TRI) shows an overall increase of 18 percent in total on-site releases to air, land and water in Indiana in 2010.
On Dec. 4, 2011 the Fort Wayne Journal Gazette published a story by Dan Stockman, headed "Toxins released in Indiana on rise: Environmentalists decry IDEM as doing too little." It includes:
[IDEM spokesman Robert Elstro] said state officials are still analyzing the data and expect to have a report next month; environmentalists said IDEM does not seem committed to doing anything about it.
It appears that the story this week in the Chesterton Tribune is on the completed IDEM report.

This Jan. 8, 2012 story by Carin Hall in Energy Digital, is headed "Toxic Chemical Pollution Up 16 Percent: The EPA announced an increase in toxic chemical pollution from mining firms, despite years of decline ."

Posted by Marcia Oddi on Tuesday, January 10, 2012
Posted to Environment

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):

Steven Cusack v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 10, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Sarah Haag, Gordon Haag and Cathy Haag; Molly Kruger, William Kruger, III, and Katherine F. Kruger, et al. v. Mark Castro, The Indiana Youth Soccer Association, Virginia Surety Company, Inc., et al., a 13-page, 3-1 opinion, Justice Sullivan writes:

Players on a local youth soccer team seek to recover under the state youth soccer govern-ing association’s business auto-insurance policy for injuries sustained when the van in which they were riding was involved in an accident. Because the van was not being used in the busi-ness of the association, a condition for coverage under the insurance policy at issue, the injured players may not recover. * * *

The policy does not define “in the business of” and the Players argue that this creates an ambiguity that should be construed against the insurer. Of course, that a policy does not define a term does not necessarily make the term ambiguous. * * * We find that the IYSA’s organizational documents combined with widespread general familiarity with the business of sports governing bodies render the term unambiguous here. * * *

Because Castro was not using the automobile “in the business” of the IYSA, the policy provides no coverage. The judgment of the trial court is affirmed.
Shepard, C.J., concurs.
Rucker, J., concurs in result.
Dickson, J., dissents with separate opinion.
David, J., not participating.

[J. Dickson's dissent begins on p. 10 of 13, and concludes] Because I find that, under the facts of this case, a reasonable construction of the hired au-to endorsement supports coverage, which coverage is not diminished by the plain language of the second sentence of the provision, I would reverse the summary judgment entered in favor of the insurance company.

Posted by Marcia Oddi on Tuesday, January 10, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Retired Judge William G. Conover, 86, of the Court of Appeals of Indiana died Monday"

From a news release just issued by the Indiana Court of Appeals:

INDIANAPOLIS – Retired Judge William G. Conover of the Court of Appeals of Indiana died Monday, Jan. 9 in his hometown of Valparaiso, IN. He was 86.

Judge Conover was appointed to the Court of Appeals by Gov. Robert Orr and took his seat on Oct. 26, 1981. He retired on Dec. 31, 1993, but served the Court and all Hoosiers as a senior judge for two full years after that.

“Judge Conover was from a generation of people – the greatest generation – that took charge and got things done,” said Court of Appeals Judge John G. Baker, who served with Judge Conover from 1989 through 1993 and later served as Chief Judge of the court. * * *

Judge Conover was active in legal, political and civic affairs. He was a member of the Porter County Bar Association, the Indiana State Bar Association, the Institute for Judicial Administration and the American Judicature Society. His Court of Appeals’ biography is available on the Court’s website.

Arrangements are pending at Moeller Funeral Home, Valparaiso.

Posted by Marcia Oddi on Tuesday, January 10, 2012
Posted to Indiana Courts

Environment - More on "Supreme Court takes up property rights dispute"

Updating this ILB entry, apparently the oral argument yesterday went badly for the US EPA in Sackett v. EPA, a case challenging EPA's "non-challengable" compliance orders. Lyle Denniston of SCOTUSblog reported under the heading "A weak defense of EPA," with this opening paragraph:

With a federal government lawyer conceding almost every criticism leveled at the way the U.S. Environmental Protection Agency compels landowners to avoid polluting the nation’s waterways, the Supreme Court on Monday seemed well on its way toward finding some way to curb that agency’s enforcement powers. Their task was made easier as Deputy U.S. Solicitor General Malcolm L. Stewart stopped just short of saying that EPA was just as heavy-handed as its adversaries — and several of the Justices — were saying.

Posted by Marcia Oddi on Tuesday, January 10, 2012
Posted to Environment

Ind. Gov't. - Greenfield: "Former Mayor Brad DeReamer’s city e-mail account was deleted in his final days in office, wiping out public records and probably violating state law."

That is the intriguing headline to the story posted Jan. 7, 2011 by the Greenfield Daily Reporter. According to the snippit of the story available online, the former maayor asked the city technology department to wipe the computers clean when he left:

“Basically, since we had an employee change-out, we just thought it’d be best to rebuild the computers,” said Nick Riedman, director of the city’s information technology department.

Posted by Marcia Oddi on Tuesday, January 10, 2012
Posted to Indiana Government

Ind. Courts - More county judges elect to retire

Yesterday the ILB listed four Marion County judges who have decided not to run for office in 2012. Here are some stories from other counties.

"Ted Todd announced this morning he would not seek re-election as the judge of the Jefferson Circuit Court," from the Madison Courier.

"On December 31, Judge John Andrew Westhafer will retire from the Decatur County Circuit Court," from the Greensburg Daily News.

"Vanderburgh Circuit Court Judge Carl Heldt said Monday he will not seek a third six-year term on the bench," from the Evansville Courier & Press.

Posted by Marcia Oddi on Tuesday, January 10, 2012
Posted to Indiana Courts

Monday, January 09, 2012

Ind. Gov't. - What is next in Charlie White's case, now that Judge Rosenberg has stayed his order pending appeal?

On Wednesday, Jan. 4th, Judge Rosenberg announced his ruling granting "Motions for Stay of Execution of its Judgment of December 22, 2011 pending appellate review." So what happens next?

Per William Groth, who is representing the Democratic party in this civil suit against Charlie White:

We filed a Motion to Transfer under App. R. 56(A) on Friday, and the AG’s office filed a similar motion today. Thus far only White hasn’t asked the Supreme Court to accept transfer jurisdiction from the COA.
Here is the rule:
Rule 56. Requests To Transfer To The Supreme Court

A. Motion Before Consideration by the Court of Appeals. In rare cases, the Supreme Court may, upon verified motion of a party, accept jurisdiction over an appeal that would otherwise be within the jurisdiction of the Court of Appeals upon a showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination. If the Supreme Court grants the motion, it will transfer the case to the Supreme Court, where the case shall proceed as if it had been originally filed there. If a filing fee has already been paid in the Court of Appeals, no additional filing fee is required.

Earlier today the Supreme Court granted a Rule 56(a) petition in the IBM effort to depose Gov. Daniels.

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Ind. Trial Ct. Decisions | Indiana Government

Ind. Gov't. - More on "Supreme Court agrees to hear arguments over IBM's request to question Governor Mitch Daniels"

Updating this ILB entry from earlier today, here is the Supreme Court's order, filed today, granting the emergency petition to accept jurisdiction of the interlocutory appeal pursuant to Rule 56(A).

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Ind. Sup.Ct. Decisions | Ind. Trial Ct. Decisions | Indiana Government

Environment - "Triad Mining, Inc. Clean Water Act Settlement"

US EPA has announced a CWA settlement today with Triad Mining, including a civil penalty of $810,171. From the release:

(Washington, DC - January 09, 2012) Triad Mining Inc., the owner and operator of 31 surface mines in Appalachia and Indiana, has agreed to pay a penalty and to restore affected waterways for failing to obtain the required Clean Water Act (CWA) permit for stream impacts caused by its surface mining operation in Indiana, announced the Department of Justice and the U.S. Environmental Protection Agency (EPA). Since 2002, Triad's mining operation has resulted in the unpermitted excavation and filling of more than 53,000 feet of streams that flow into the White River.

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Environment

Ind. Gov't. - "State, Amazon.com, reach sales tax agreement"

From a press release just issued:

INDIANAPOLIS (January 9, 2012) – Governor Mitch Daniels announced today that the state has reached an agreement with Indiana’s largest online retailer, Amazon.com, Inc., to begin collecting Indiana sales tax on internet purchases.

Indiana will become the fourth state to reach such an agreement with Amazon, but the governor said he will continue to push for federal action to fairly address the issue.

“The only complete answer to this problem is a federal solution that treats all retailers and all states the same. But for now, Amazon has helped us address the largest single piece of the shortfall, and we appreciate the company working with us to find a solution,” said Daniels.

According to the agreement between Amazon and the Department of Revenue (DOR), the company will voluntarily begin to collect and remit Indiana sales tax beginning January 1, 2014 or 90 days from the enactment of federal legislation, whichever is earlier. The state will not assess the company for sales tax for other periods.

Here is a list of earlier ILB Amazon tax issue entries.

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Indiana Government

Ind. Decisions - Ft. Wayne "Diocese must pay in bullying suit, court rules"

Interesting unattributed story posted this afternoon on the Fort Wayne Journal Gazette site. A few quotes:

The local Roman Catholic diocese took back its offer to settle a lawsuit related to allegations of bullying after details of the lawsuit's settlement became public, but an Allen Superior Court judge has ruled it must pay.

The Diocese of Fort Wayne-South Bend in November issued a statement that it had rescinded its settlement offer because the terms became public.

Attorneys for the diocese had asked that the settlement be kept confidential to prevent “any insinuation that the diocese had agreed to pay anything because the claims had merit,” according to the statement. It said the statement was not kept confidential, so it had no obligation to pay.

Judge David J. Avery in December ruled that “the Plaintiffs and their council never intended for the settlement to become public knowledge” and that the diocese did not prove that the plaintiffs breached the agreement.

The ruling says the plaintiffs took appropriate steps to maintain the confidentiality of the settlement.

The Journal Gazette wrote about the lawsuit and the proposed settlement late last year after the parents of the plaintiff filed a routine petition to be declared his guardian for the purpose of accepting the money on his behalf.

In that document, filed independently of the original lawsuit, the lawyer for the plaintiff detailed the proposed payment by the diocese and the parents of two students, through their insurance companies, to settle the lawsuit.

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - More on "Supreme Court agrees to hear arguments over IBM's request to question Governor Mitch Daniels"

Updating this brief entry from earlier today, Bill McCleery now has a story in the IndyStar site. A quote:

The Supreme Court has agreed to set a date for oral arguments soon, Marion Superior Judge David J. Dreyer said in an e-mail. Dreyer said he expected the matter to be decided in February.
See this Dec. 23, 2011 ILB entry for background.

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Indiana Government

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

For publication opinions today (0):

NFP civil opinions today (1):

Kurt Gregory v. Carol Gregory (NFP)

NFP criminal opinions today (3):

Javon L. Bonner v. State of Indiana (NFP)

Jesse Baker v. State of Indiana (NFP)

Daniel Foster v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending January 6, 2012

[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 Friday, January 6, 2012. It is two pages (and 28 cases) long.

Four transfers were granted last week (details to follow):

  • James C. Purcell v. Old National Bank

  • Anthony H. Dye v. State of Indiana

  • State of Indiana v. Steven Hollin

  • Jacqueline Wisner, M.D., and the South Bend Clinic, L.L.P. v. Archie L. Laney

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Indiana Transfer Lists

Ind. Gov't. - Duke CEO's testimony before IURC streamed live at 1 PM today

JohnRussell99 John Russell - "Duke Energy CEO James Rogers to take the IURC witness stand at 1 pm today in Indy to answer questions on Edwardsport power plant."

"Want to watch Duke Energy CEO testify at 1 p.m. on scandal-ridden Eport plant? Live-streaming is here."

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Indiana Government

Ind. Gov't. - "Supreme Court agrees to hear arguments over IBM's request to question Governor Mitch Daniels"

shellawish Jim Shella - "State Supreme Court agrees to hear arguments over IBM's request to question Governor Mitch Daniels re: FSSA lawsuit."

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Indiana Government

Ind. Law - "Proposed bills would redefine intoxication"

Sophia Voravong of the Lafayette Journal Courier reports today:

Simply walking home from a bar or party after downing a few alcoholic beverages won't be enough for police to nab you for public intoxication under two bills that Indiana legislators will consider this session.

As currently written, Indiana's public intoxication statute -- it's a Class B misdemeanor to be under the influence of alcohol or a controlled substance when in public -- leaves great room for interpretation.

Senate bills 94 and 97 would better define what public intoxication means -- more specifically, that it should apply only to the inebriated who are disturbing the peace or are in danger of hurting themselves or others. * * *

A third bill on public intoxication also will go before Indiana legislators during the current session, which began Wednesday and will end in mid-March. It would exclude inebriated people who are passengers in a vehicle in motion from being arrested for public intoxication.

Taxis and other types of public transportation are exempt.

Currently, the inside of a private vehicle is considered public space in Indiana. For example, if police stop a driver for operating while intoxicated, a passenger can be arrested for public intoxication.

ILB: That third bill is SB 188. The digest:
Provides that, for purposes of the public intoxication statute, a person is not in a public place or place of public resort if the person is a passenger in a motor vehicle that is traveling on a highway. Specifies that the offense of being intoxicated in or upon a vehicle commonly used for public transportation does not apply to a taxicab.
The proposed change appears to be aimed at the hole in the current law discussed in this July 1, 2011 ILB entry headed "That could pull over every single taxi in Broad Ripple," about the Supreme Court's June 24, 2011 opinion in Brenda Moore v. State of Indiana.

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Indiana Law

Environment - More on "Supreme Court takes up property rights dispute"

Updating this ILB entry from Jan. 7, 2012, the NY Times has now published this editorial on this case about pre-enforcement review, which is to be argued today before the SCOTUS.

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Environment

Ind. Law - Indiana Register, Indiana Administrative Code still unavailable

This ILB entry yesterday on environmental permitting for the new Bear Creek mine noted that the Indiana Register and Indiana Administrative Code were currently offline, a big problem since this is the only source of Indiana rulemaking documents, nothing is published in print any longer since the General Assembly elected to halt publication of the Indiana Register several years ago.

A check this morning
as of 5:51 am resulted in the same error message as yesterday:

This service is temporarily unavailable.

We apologize for the inconvenience, but hope you will try your request again shortly.

[Update at 7:23 am] Now back up, no explanation.

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Indiana Law

Ind. Courts - Marion County Will Elect At Least Four New Judges This Year

Twenty Marion County Superior Court judges' terms expire in 2012. Here is the list, arranged by party but otherwise in no particular order:

Republicans Democrats
William J. Nelson Grant Hawkins
Lisa Borges Thomas J. Carroll
Michael D. Keele Barbara Collins
Sheila A. Carlisle Linda E. Brown
Carol J. Orbison Becky Pierson-Treacy
Reuben B. Hill Mark Stoner
S.K. Reid John Hanley
William Young Heather Welch
Clark Rogers Jose Salinas
Robert R. Altice, Jr. Steven Eichholtz

This link leads to a list of links to all Marion County judges, with their courts, some with photos, etc.

The Judicial Excellence Political Action Committee (“JEPAC") of the Indianapolis Bar Association began conducting its evaluation of 2012 candidates for Marion Superior Court at midnight Monday, January 9. The online survey was sent to all members of the Indianapolis Bar Association; as well as attorneys from the Marion County Prosecutor’s Office, Marion County Public Defender Agency, and all attorneys that have entered an appearance in incumbent candidate courts since 2009. The survey will close on January 18.

Who is not running again?

A comparison of the names of incumbent judicial officers who have declared themselves to be candidates for Marion Superior Court with the above table shows that the following are not running for reelection in 2012: Three Republicans: Judges Hill, Reid and Young. And one Democrat: Judge Collins.

Who is running as a non-incumbent?

The following attorneys who submitted their names to JEPAC for the evaluation are currently not serving on the Marion County Superior Court:

  • Democrats: Greg Bowes, John Boyce, John M.T. Chavis II, Mark King.

  • Republicans: Rom Byron, Amy M. Jones, James A. Joven, Helen Marchal, Steven Rubick.

So, look for at least four new Marion County Superior Court judges, but it could be as many as nine if some of these people knock off incumbents. In the last election (2008), three Republican judges lost at slating.

Posted by Marcia Oddi on Monday, January 09, 2012
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, wouldn't this be a wonderful time for you to become an ILB supporter for 2012! Please think about supporting the ILB!

From Sunday, January 8, 2012:

From Saturday, January 7, 2012:

From late Friday, January 6, 2012:

Posted by Marcia Oddi on Monday, January 09, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/9/12):

Thursday, January 12th

  • 9:00 AM - Indiana Department of Revenue v. Rent-A-Center East, Inc. (49S10-1112-TA-683) - The Department of State Revenue assessed additional AGI tax liability on RAC East for the 2003 tax year based on the Department’s determination that RAC East should have filed a combined AGI tax return with two of its affiliates. On RAC East’s original tax appeal, the Tax Court issued an order granting summary judgment to RAC East. Rent-A-Center East, Inc. v. Indiana Dep’t of State Revenue, 952 N.E.2d 387 (Ind. Tax Ct. 2011). The Supreme Court has granted a petition for review.

    ILB: This is a May 31, 2011 Tax Court opinion re whether the Department of Revenue properly required RAC East to report its 2003 Indiana AGI tax liability using a combined income tax return with two of its affiliates.

  • 9:45 AM - Robert L. Clark, Jr. v. Robert L. Clark, Sr. (01S02-1112-CT-690) - Robert Clark Jr. was struck and injured by a car being operated by his father, Robert Clark Sr., at a moment when Junior had exited the car to assist Senior with parallel parking. Junior filed a negligence action against Senior, and the trial court awarded summary judgment to Senior on the basis that the Indiana Guest Statute, I.C. § 34-30-11-1, bars Junior’s claim. The Court of Appeals reversed and remanded. Clark v. Clark, No. 01A02-1007-CT-759 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is a three-opinion, 2-1 vote, July 17, 2011 Not for Publication opinion where the majority opinion reversed the trial court, concluding "Because Senior's admission that Junior was not 'in or upon' the vehicle is dispositive of his affirmative defense, we hold the Indiana Guest Statute inapplicable here. Thus, we reverse and remand for proceedings consistent with this opinion."

  • 10:30 AM - Kenneth Vaughn v. State of Indiana (45S05-1112-CR-684 ) - Vaughn gave non-responsive answers while testifying at his trial on robbery charges, and despite instructions from the Lake Superior Court, he refused to stop. Vaughn was restrained for a time. The trial court denied Vaughn’s motion for a mistrial, but a majority of the Court of Appeals panel reversed and granted a new trial in Vaughn v. State, 954 N.E.2d 482 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is a 2-1 Sept. 14, 2011 COA opinion, where the majority concluded "Muzzling and restraining Vaughn in front of the jury for this momentary outburst deprived him of an otherwise fair trial before an untainted and impartial jury. Accordingly, we conclude that the trial court abused its discretion in denying Vaughn’s motion for mistrial. We therefore reverse and remand for a new trial."

Next week's oral arguments before the Supreme Court (week of 1/16/12):

  • No arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/9/12):

  • No arguments currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 1/16/12):

Thursday, January 19th

  • 12:30 PM - Anthony Wade vs. Terex-Telelect, Inc. (29A05-1101-CT-72) - This appeal originates from a complaint alleging that Terex-Telelect, Inc. (“Terex”) was negligent under the Indiana Product Liability Act in the design of an aerial passenger bucket, which was attached to a bucket truck and from which Anthony Wade (“Wade”) fell and was rendered a quadriplegic. Wade appeals from a jury verdict in favor of Terex and asserts that the trial court erred when it: (1) denied Wade’s partial motion for directed verdict regarding Terex’s affirmative defense that its product was in conformity with the generally recognized state of the art applicable to the safety of the product; and (2) instructed the jury regarding the state of the art defense and the affirmative defense that the product complied with government regulations because there was not sufficient evidence to support giving these instruction. The Scheduled Panel Members are: Judges Kirsch, Vaidik and Bradford. [Where: Krannert Center for Executive Education Purdue University]

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, January 09, 2012
Posted to Upcoming Oral Arguments

Sunday, January 08, 2012

Environment - "Is Bear Run coal mine putting Hoosiers at risk?"

A very long and interesting story today by Heather Gillers, on the Sunday Indianapolis Star front page and continuing on to a full inside page.

The gist is that the State of Indiana has elected to regulate water discharges from coal mines, no matter what size, via "general permits" (permits by rule) rather than by individual permits tailored to the specific mine, and that Peabody's Bear Run, which will become the largest mine in the Eastern United States, will be subject only to the same general permit requirements as the smallest Indiana mine. A sidebar to the printed Star story lays out the how general permits and individual permits differ. Unfortunately, it is not part of the online story.

ILB: The rule currently covering "Facilities Engaged in Mining of Coal, Coal Processing, and Reclamation Activities," is 327 IAC 15-7, part of the NPDES General Permit Rule Program.

I've attempted to research the history of this rule this afternoon. Indiana's rules are not available except online, and unfortunately the server (although oddly not that for the rest of state government) is currently "temporarily unavailable" and has been all afternoon. This means ALL Indiana's rules, which form a large part of Indiana's law - tax rules, fire marshal rules, and in fact the administrative rules of every state entity, are currently totally unavailable. (The ILB has frequently expressed concerns about this vulnerability.)

Also important but not mentioned in the story is the fact that IDEM has proposed a rulemaking to make significant changes in the NPDES permit by general permit/rule program. LSA #10-659, a First Notice, lays out the proposal. Unfortunately, I am unable to research the status of this proposal, again because the site is down. (Here is a version from the Google archive.)

Interestingly, one large law firm has posted an alert about this proposed rulemaking. Dated Nov. 3, 2010, it is headed "Indiana Coal Mines Beware: IDEM Begins NDPES General Permit Revisions."

Posted by Marcia Oddi on Sunday, January 08, 2012
Posted to Environment | Indiana Government

Ind. Gov't. - Indiana Association of Cities and Towns focus of FWJG inquiry

"Cities’ lobbyist stays below legal scrutiny: Agency not subject to open government or non-profit rules" is the subject of a long story today in the Fort Wayne Journal Gazette, reported by Dan Stockman, looking at how the IACT falls between the cracks insofar as any kind of public review is concerned. Some quotes:

FORT WAYNE – As Indiana continues its yearslong push to reform how its local governments function, one of the most important voices in that discussion has been the Indiana Association of Cities and Towns. * * *

IACT calls itself “the official voice of municipal government in Indiana.”

But while the towns and cities that make up the organization are subject to transparency laws such as the Open Meetings Act and the Access to Public Records Act, and their budgets are subject to review by the Indiana Department of Local Government Finance and their spending is subject to auditing by the State Board of Accounts – IACT itself is not subject to any of those.

And while a registered non-profit organization would be required to release its annual tax forms to the public, giving insight as to where its money comes from and how it is spent, and who the officers are, IACT is not a registered non-profit, either.

A registered non-profit would have to be incorporated in Indiana, giving the public a view of who started the organization, who runs it and how to contact them.

But IACT is unincorporated.

Being a non-profit would also make it subject to strict federal rules on lobbying and campaign finance activities. According to state records, IACT spent $96,852 on lobbying the General Assembly in 2010.

But if you want to know how much of IACT’s budget that constituted or where the money came from, IACT is under no obligation to tell you. * * *

So how does IACT exist somewhere between governmental body and a private one?

“It is definitely an intriguing question,” [Micah Vincent, Department of Local Government Finance general counsel] said.

It’s also a troubling one, according to transparency advocates.

There is much more to read in the story, including discussion that:
... in the 1950s, IACT was designated by the Internal Revenue Service as a Sec. 115 organization.

But Sec. 115 organizations are government bodies: The tax code says those groups are not political but perform “an essential government function” and that their income comes from a public utility or “the exercise of an essential government function” and flows to a state or local government. Fort Wayne’s now-defunct City Power & Light would be a good example.

Posted by Marcia Oddi on Sunday, January 08, 2012
Posted to Indiana Government

Ind. Law - Guns on campus and in State Office Bldg; golf carts on county roads

Niki Kelly has a story today in the Fort Wayne Journal Gazette on some of the bills introduced this session. A few quotes:

[Jim Banks, R-Columbia City] filed companion bills to allow guns to be carried on college campuses and some state properties.

“I don’t intend to scare people. We are talking about responsible gun owners who have a permit to carry a gun,” he said. “I think it’s worth the debate.”

The campus-carry bill has gotten attention given recent campus shootings nationwide. But Banks contends none of those shootings has involved people with permits.

The second bill would dovetail onto a bill from last year prohibiting municipal restrictions on guns in city, county and other public buildings. As currently written, the bill would not allow guns in the Statehouse because there is a courtroom but would allow guns in the rest of the government-center campus. [ILB: See SB 180, Firearms on school property; SB 181, Possession of firearms on state property, including a state supported college or university] * * *

Rep. Matt Lehman, R-Berne, wants to extend the ability of municipalities to authorize golf carts on their roads to unincorporated areas in the county.

“We accidentally left counties out,” he said.

The county sheriff would have to approve of such a move. State law requires the driver be licensed but local officials can add additional restrictions. Those on the golf carts can cross a state highway but not drive down it.

His legislation is House Bill 1013.

ILB: Well, counties were not exactly accidentally left out in the 2009 law. They were in. But in the 2009 special session that followed, a "surprise" amendment in the budget bill narrowed the application of the new law. For more on the ensuing problems, see this Aug. 5, 2009 entry headed "New golf cart law, as amended, may work a hardship on those outside Culver town limits," and this Aug. 9, 2009 entry headed "New golf cart laws may need corrective amendments."

A bill to remedy the situation was introduced in the 2010 session, but "Senate Transportation Committee Chairman Tom Wyss wouldn't allow a vote on it," according to this March 18, 2010 entry, which concludes:

In short, the 2009 legislation included cities, towns, and counties. Wording slipped into the 2009 SS budget bill narrowed the exceptions for golf carts enacted during the regular session to golf carts operating under an authorizing municipal ordinance. This was one of the "budget bill surprises" - language very few knew about until long after the special session was over.

This is one example of how this practice, which subverts the legislative process, is often successful. The ILB will write shortly on the fate of several other 2009 "surprises", including restrictions on out-of-state placement of juveniles by judges, and the designation of the specific locations of certain local curb cuts by Indiana statute.

Posted by Marcia Oddi on Sunday, January 08, 2012
Posted to Indiana Law

Courts - In a number of states, "Legislators Are Out to Take Over Their State Judiciary Systems"

A few quotes from a lengthy Jan. 1. 2012 story in the ABA Journal, written by John Gibeaut:

[I]n the wake of another decision that didn’t go their way, Republican legislators in Florida attempted to ram through a broad package of restrictions on the state’s judiciary last spring. The legislators tried unsuccessfully to emulate Texas and Oklahoma by splitting the Florida Supreme Court into civil and criminal divisions. They also tried to cut the state bar out of the judicial nominating process.

Florida is just one of dozens of states where legislators have attempted to seize control of the justice system to varying degrees.

Though attempts to tame the courts are nothing new, they historically arise in narrow contexts, such as single decisions in controversial cases, and usually stand slim chance of passage. But by 2011, the number and scope of legislative attacks had grown in dozens of states and covered nearly all phases of court administration, decision-making and judicial selection.

Observers note that many such bills ignore the doctrine of separation of powers that establishes the judiciary as a co-equal branch of government.

Posted by Marcia Oddi on Sunday, January 08, 2012
Posted to Courts in general

Ind. Gov't. - More on "Armed with impressive resume, Gary Mayor Karen Freeman-Wilson faces tall order"

Updating this ILB entry from Jan. 4, 2012, Phil Wieland reports today in the NWI Times in a story that begins:

GARY | The historic swearing in of the first black woman mayor in Indiana was celebrated by several hundred people, including county and state officials, and punctuated by some rousing, hand-clapping gospel performances Saturday.

Karen Freeman-Wilson was sworn in by state Supreme Court Justice Robert Rucker to launch what supporters called a new day for Gary. The event was held at the West Side Leadership Academy auditorium and included the reading of a letter from U.S. Attorney General Eric Holder and a personal appearance by state Attorney General Greg Zoeller.

Zoeller made light of the fact that — as a white, middle-aged male from New Albany, Ind., who also is a Republican — he is about as different from Freeman-Wilson as possible. He said he wanted to attend because Freeman-Wilson attended his inauguration as one of the former state attorneys general and stressed people need to work together despite their differences.

"It's time to put aside politics and partisanship," Zoeller told the crowd. "Karen Freeman-Wilson has a monumental task ahead. Everyone in Gary needs to get behind the new mayor for there to be a new day in Gary, and it starts with me. I'm always willing to work with the new mayor to serve the common good of the citizens."

Posted by Marcia Oddi on Sunday, January 08, 2012
Posted to Indiana Government

Ind. Law - More on "Efforts to limit areas where convicted sex offenders can live have resulted in concentrating them in locations like the Northway mobile home park"

Following up on its editorial from Jan. 4, 2012 (ILB entry here), Jeff Wiehe writes today in the Fort Wayne Journal Gazette on "the state law that prohibits sex offenders from living within 1,000 feet of any school, park or child-care center" - more:

In an area like Fort Wayne – full of parks, churches and a growing number of walking trails – the law creates small pockets where sex offenders can reside, areas that some dub as “sex offender ghettos.”

Cpl. Jeff Shimkus of the Allen County Sheriff’s Department finds this consequence increasingly troubling.

“It’s bad. I don’t like it at all,” said Shimkus, who is part of the department’s Sexual Offender Registration and Notification Team.

The law, Shimkus said, is becoming harder to enforce and might hinder police from knowing where some sex offenders live, allowing them to move closer to schools and parks undetected for long periods of time.

Shimkus is considered by many in this area to be an expert on sex offender issues. He’s even been involved in mapping out some of the state’s laws governing such offenders and said he cautioned legislators against the 1,000-foot law before it was passed.

“I told them it’s going to be a logistical nightmare to enforce and, the thing is, I don’t think there’s any research that shows these residency restrictions really protect anything,” he said.

One of the primary problems with the restriction is that with so few places sex offenders can live, many give up trying to comply with the law and move to within earshot of a school or park anyway. * * *

This presents a whole new set of problems, Shimkus said. Many offenders are on parole and need to make mandatory counseling appointments or meet with their probation officers. When they live in areas without buses, many who are poor can’t make these meetings and end up failing their probation.

It’s like they are set up to fail, Shimkus said.

And then there are the “sex offender ghettos.” It comes as no surprise to Shimkus that these areas have an influx of offenders in one place.

“All these guys talk to each other and see each other in counseling sessions,” Shimkus said. “They hear from each other the places where they can live. One day a little area might have one or two sex offenders, the next it becomes a minefield for the families that live there.”

Multiple sex offender clusters already exist in Allen County.

Posted by Marcia Oddi on Sunday, January 08, 2012
Posted to Indiana Law

Saturday, January 07, 2012

Ind. Courts - Marion County Court Requiring Renewal of Attorney Access Cards

Per the Indianapolis Bar Ass'n. website, this information:

The Marion County Court Administrator’s Office has announced the renewal schedule for attorney access cards to the City-County Building. Effective February 23, 2012 application and distribution will begin for new cards and those issued prior to that date will no longer be valid on April 1, 2012. Application cost for the 2012-13 card is $25.

To obtain an access card an attorney must complete the application form and bring it to Court’s Jury Pool Office (2nd Floor, City-County Building), City-County Building, 200 E. Washington St., Center Tower, Room T-202, Indianapolis, IN 46204. Beginning February 23, 2012 hours for application and distribution are limited to Thursdays from 2:00 pm to 4:00 pm and Fridays from 9:30 am to 11:30 am. The application form and guidelines are available here.

The Court considers the issuance of the cards to be a privilege extended to members of the Bar as officers of the court. Once obtained the authorized attorney identification card may be presented to a court security officer at a City-County Building security screening station which will allow the attorney to enter a secured area without requiring a search.

Posted by Marcia Oddi on Saturday, January 07, 2012
Posted to Indiana Courts

Ind. Law - More on: Twitter proving its value this morning in reporters' coverage of RTW hearing

Updating yesterday's ILB entry, here are the stories resulting from yesterday's hearing, as reported by Mary Beth Schneider of the Indianapolis Star, Niki Kelly of the Fort Wayne Journal Gazette, and Eric Bradner of the Evansville Courier & Press.

The bill at issue is HB 1001.

Posted by Marcia Oddi on Saturday, January 07, 2012
Posted to Indiana Law

Stage Collapse - "Officials apply Ind. fair's lessons to Super Bowl"

Charles Wilson of the AP reports on Indianapolis preparations for the Superbowl in this nationally syndicated story. Some quotes:

But beneath the excitement of planning the biggest sporting event in city history is an undercurrent of tension over what could go wrong, a reality brought on by a deadly stage collapse at the Indiana State Fair that killed seven people and injured more than 40 others. * * *

[T]he outdoor structures, including two large stages that are expected to draw thousands for performances by Patti LaBelle, Darius Rucker, LMFAO and other national acts, are getting an especially hard look. Officials have received 50 applications for tents or stages to be set up near Lucas Oil Stadium, with more expected in the coming weeks.

All will be examined by city inspectors, something that didn't happen at the state fair because the state does not require inspections. About 40 inspectors from the Department of Code Enforcement, plus officials from the state fire marshal's office, will check each to ensure it meets manufacturer's standards as well as fire and occupancy codes.

Posted by Marcia Oddi on Saturday, January 07, 2012
Posted to Stage Collapse

Law - "Legal Educators Grapple With How to Meet a Changing Profession's Needs"

Katherine Mangan's Jan. 6, 2012 story in The Chronicle of Higher Education begins:

Seismic changes in the legal profession and a growing skepticism about the value of a law degree have presented law schools with unprecedented challenges, according to speakers at the annual meeting of the Association of American Law Schools.

Legal educators spoke on Thursday with a mixture of defiance, irritation, and chagrin at the drumbeat of criticism that has been volleyed at law schools as students' debt loads have soared and job prospects have shrunk.

Worth a read.

Posted by Marcia Oddi on Saturday, January 07, 2012
Posted to General Law Related

Courts - SCOTUS to hold oral arguments on three major election law cases on Monday

Lyle Denniston of the SCOTUSblog has posted a long argument preview that begins:

Just as the Supreme Court’s controversial ruling two years ago in Citizens United v. Federal Election Commission has become a major influence on the financing of the 2012 elections, the Court’s coming decision this Term on three legislative redistricting cases from Texas may have a strong impact on who wins some key election contests — and might even help settle control of the new U.S. House in the Congress that gathers next January. The ruling also may bring a severe test of the constitutionality of America’s most important law on the voting opportunities of minorities, the Voting Rights Act of 1965. For a case that could be decided on very narrow grounds, it has developed potentially historic proportions.
Erwin Chemerinsky writes in the ABA Journal News A sample:
[L]urking in the background of these consolidated cases is the constitutionality of an important civil rights statute: Section 5 of the Voting Rights Act of 1965. The statute requires that for jurisdictions like Texas, with a long history of race discrimination in voting rights, there must be preclearance of any changes in their election systems to ensure that they will not make worse the electoral position of protected minority groups.

The cases’ complex procedural posture is the result of the interaction of Section 5 with another federal law designed to ensure equality in voting: the Voting Rights Act’s Section 2, which prohibits government actions that have the intent or impact of discriminating against minority voters.

Posted by Marcia Oddi on Saturday, January 07, 2012
Posted to Courts in general

Law - More on "Obama Tempts Fight Over Recess Appointments" [Updated]

This January 5, 2012 ILB entry on recess appointments is supplmented today by two additional stories.

"Debate Over Appointees Hinges On One Word: Recess" is the heading to a Weekend Edition Saturday story by Carrie Johnson. A quote:

Harvard Law professor Lawrence Tribe says he thinks there will certainly be a wave of litigation. But Tribe says he believes Obama, his former student, acted well within his power to keep the administration moving during an extended break in Congress.

"I think he certainly anticipated legal actions and is on very solid ground," Tribe says. "I mean, 12 presidents have made 285 appointments of this kind during a session since 1867."

Ultimately, Tribe says, there's not much law on the issue, so the courts will need to develop "criteria for what counts as a real recess, which this I think clearly was, and what is simply a weekend break or a routine break that has nothing to do with frustrating the operations of the executive branch."

It's an issue that Tribe says could make its way up to the Supreme Court.

Meanwhile, after calls from lawyers and lawmakers on both sides of the political spectrum, two sources familiar with the issue say the Obama administration could release a legal document from the Justice Department that forms the basis for its reasoning in the coming weeks. Some conservatives have asked for any findings by the Justice Department's Office of Legal Counsel, which advises the executive branch on tough legal questions. But for now the White House and Justice Department have declined to say whether any such document exists.

David Stout of Main Justice has this Jan. 6, 2012 blog entry headed "Obama’s ‘Recess’ Appointments Ignite Fight With Huge Implications."

Posted by Marcia Oddi on Saturday, January 07, 2012
Posted to General Law Related

Environment - "Supreme Court takes up property rights dispute"

David G. Savage had this long story in the Jan. 3, 2012 edition of the Los Angeles Times. Some quotes:

Next week, the Supreme Court will take up the Sacketts' case, not to redefine wetlands but to decide whether landowners are entitled to a hearing before a judge when they are confronted by the EPA. The case is being closely watched by developers and environmentalists. * * *

[T]heir hearing request was turned down by a federal judge in Idaho and by the 9th Circuit Court of Appeals in San Francisco.

Agreeing with the EPA, the judges said the compliance order was like a warning to the landowners that they were violating the law. They weren't entitled to a hearing under the law until the agency had imposed a fine on them, the appeals court said.

"When Property Rights, Environmental Laws Collide," is the heading to a long report by Nina Totenberg on NPR's Weekend Edition Saturday.

Posted by Marcia Oddi on Saturday, January 07, 2012
Posted to Environment

Friday, January 06, 2012

Ind. Courts - More on: Appellate Clerk announces an entirely new docket by the end of the year

Per this announcement from Nov. 7, 2011, the ILB is eagerly watching for the promised new appellate docket, to replace this one.

Posted by Marcia Oddi on Friday, January 06, 2012
Posted to Indiana Courts

Courts - Do the community caretaking exception set forth in Cady applies to warrantless searches of homes?

"New Exception Allowing Warrantless Home Entries Headed to the High Court?" is the heading to this entry by Nicholas J. Wagoner in the Circuit Splits blog.

Posted by Marcia Oddi on Friday, January 06, 2012
Posted to Courts in general

Ind. Law - Photo and bio of Ice Miller Lawyer arrested in Louisvillle no longer available

The Jan. 6, 2012 story by Andrew Wolfson in the Louisville Courier Journal begins:

An honors graduate of the University of Louisville law school who works for a prominent Indianapolis firm was arrested last week in Louisville and charged with disorderly conduct and assaulting a police officer.

According to a citation, Courtney R. King, 30, allegedly fought with security guards and police at Phoenix Hill Tavern on Dec. 29 and told them: “You are going to --- die. I am a lawyer. You can Google me.”

King, who also was charged with alcohol intoxication and terroristic threatening, was arraigned Wednesday in Jefferson District Court. She has been released on her own recognizance and is scheduled to make another court appearance Feb. 7.

She did not respond to a message left in her voice mailbox at Ice Miller, a large Indianapolis firm that represents major clients, including McDonald’s Corp. and Indiana University.

However, her attorney, Alex Dathorne, noted that she has pleaded not guilty and is looking forward to resolving the matter in court.

The law firm’s Website indicates she is no longer active with the firm, but Dathorne said she has not been terminated and may be on probation. The firm directed questions to its human resources director, who was not immediately available for comment.

Above the Law had the story last evening, at which time it was able to access (and post) the Ice Miller bio info.

Posted by Marcia Oddi on Friday, January 06, 2012
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)

For publication opinions today (2):

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

Michael Woodson (“Woodson”) was convicted of two counts of Fraud, each as a Class D felony. He now appeals. We reverse. * * *

We find one dispositive: whether the trial court abused its discretion when it admitted into evidence DVDs seized from Woodson because the seizure was unlawful under the United States and Indiana constitutions. * * *

Woodson argues that Officer Cooper lacked the reasonable suspicion necessary to conduct a Terry stop. We agree. * * *

Only the fact that the area of Indianapolis in which Woodson was arrested was considered to be a “hot zone” gave Officer Cooper any kind of suspicion that drug-related or other illegal activity might be afoot. ... This is not enough to amount to reasonable suspicion, and we therefore cannot conclude under the totality of the circumstances that Officer Cooper’s Terry stop was appropriate under the Fourth Amendment.

Because Officer Cooper’s stop of Woodson was neither a consensual encounter nor supported by reasonable suspicion, the evidence obtained as a result of that stop—the DVDs in Woodson’s backpack—should have been excluded from evidence. The admission into evidence of those DVDs was clearly prejudicial because the discs formed the basis for subsequent testimony at trial as to the number and nature of the materials, without which the State would have lacked sufficient evidence to obtain a conviction. We therefore reverse Woodson’s conviction.

In Felix C. Sickels v. State of Indiana, a 30-page opinion, Judge Najam writes:
Felix C. Sickels appeals his three convictions for nonsupport of a dependent child, two as Class C felonies and one as a Class D felony, and his resulting ten-year aggregate sentence, following a bench trial. Sickels raises four issues for our review, which we reorganize and restate as the following five issues:
1. Whether Sickels’ three convictions are contrary to federal or state principles against double jeopardy because he violated only a single order for child support.
2. Whether the trial court erred when it denied his motion for discharge pursuant to Indiana Criminal Rule 4(C).
3. Whether the State denied Sickels’ right to a speedy trial under the Sixth Amendment to the United States Constitution.
4. Whether the trial court lacked personal jurisdiction over Sickels.
5. Whether the trial court abused its discretion when it sentenced him.
We affirm in part and reverse and remand in part.

NFP civil opinions today (1):

B.B. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, January 06, 2012
Posted to Ind. Adm. Bd. Decisions

Ind. Decisions - Kahn's suspension from law practice now terminated

Updating this ILB entry from Dec. 12, 2011, re In the Matter of Stanley Kahn, the Supreme Court has now posted online this one-page "Order certifying termination of noncooperation suspension," dated Jan. 3, 2012:

Pursuant to Indiana Admission and Discipline Rule 23(10)(f), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Disciplinary Commission concerning a grievance filed against Respondent. On December 30, 2011, the Executive Secretary of the Disciplinary Commission filed a "Certificate of Compliance," stating that Respondent has now cooperated with its investigation. Pursuant to Admission and Discipline Rule 23(10)(f)(3), Respondent's suspension from the practice of law terminated as of the date the certificate was filed.

The Court therefore ORDERS that Respondent's suspension from the practice of law for failure to cooperate in this case be shown as terminated as of December 30, 2011, and that Respondent be shown as reinstated to the practice of law in this state if no other suspension is in effect.

Posted by Marcia Oddi on Friday, January 06, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Twitter proving its value this morning in reporters' coverage of RTW hearing

Check out @ericbradner @marybschneider @nkellyatJG, whether or not you are watching the committee hearing live online.

Posted by Marcia Oddi on Friday, January 06, 2012
Posted to Indiana Law

Thursday, January 05, 2012

Ind. Law - "Efforts to limit areas where convicted sex offenders can live have resulted in concentrating them in locations like the Northway mobile home park, where Aliahna Lemmon was killed and 14 registered sex offenders live"

From a Jan. 4, 2012 editorial in the Fort Wayne Journal Gazette that begins:

The concentration of convicted sex offenders living in the mobile home park where Aliahna Lemmon was brutally murdered is an unintended consequence of laws prohibiting the offenders from living within 1,000 feet of many buildings serving children.

In a well-meaning effort to protect children, Indiana lawmakers have sought to reduce the likelihood offenders could live near places that attract children. So state laws forbid convicted sex offenders to live within 1,000 feet – a little more than two city blocks – from a school, a park, a youth center or a child care center.

While that doesn’t sound like a great distance, consider the number of schools and parks in and close to the city. The city has nearly 90 parks and related facilities. And the Rivergreenway is a linear park that traverses much of the city.

The result is that significant parts of the city and the surrounding area are simply off-limits for sex offenders to live.

Practical limitations further restrict areas where sex offenders can reside. Many return to the community from prison and are in no position to buy a house or pay high rents. So places outside the 1,000-foot restrictions that offer lower rents and shorter leases naturally attract sex offenders.

And the areas can change, sometimes forcing sex offenders out of their homes. A church, for example, may rent a space in a former office building, establishing a new 1,000-foot perimeter. Or someone could start a new licensed child care center.

For years, officials in the local criminal justice system have been concerned that the limited number of places could become “sex offender ghettos.”

Yet officials are largely at a loss regarding how to preserve the distance protection while diminishing high concentrations of sex offenders in certain places.

Posted by Marcia Oddi on Thursday, January 05, 2012
Posted to Indiana Law

Law - "States struggle with national sex offender law"

The ILB has had a number of entries on the federal Adam Walsh Act (AWA) aka the federal Sex Offender Registration and Notification Act (SORNA), including this most recent one from Aug. 1, 2011, headed "5 years later, states struggle to comply with federal sex offender law."

Well, now it is 2012, and the latest story on the topic, by Maggie Clark of Stateside, is similarly headed "States struggle with national sex offender law." Here is a quote from the long story:

The vast majority of states did not comply on time. As the five-year deadline of July 2011 was approaching, only four had met the terms of the law. The Obama administration issued new guidelines earlier in 2011 that gave states more discretion in implementing the act and clarified how to share information, and in the past year, 12 more states have become compliant. But most still are not, even though they will lose 10 percent of their justice assistance grants from the federal government in fiscal year 2012 as a penalty for inaction.

It’s not that states are uninformed about the law; it’s that they have substantial objections to it. Many see it as an unfunded mandate requiring them to spend millions of dollars collecting information and placing it in the national registry. They are reluctant to bear the cost of updating their own technology to register digital fingerprints, palm prints and DNA, and of paying for the additional time that law enforcement officers would spend processing sex offenders who appear before them in person.

Advocates for juveniles also complain about what would be a lifetime listing for some juvenile sex offenders, which they say goes against any commitment to rehabilitate juveniles, rather than punishing them for long periods of time.

There is much more to the article, including:
In the absence of changes to Adam’s law, however, some states will argue that complying with it is simply not worth the costs. Even though they lose 10 percent of their justice assistance money, that is usually less than they would end up paying for compliance. Ohio, which was the first state to become compliant in 2007, had within two years spent about $10 million just defending itself against lawsuits from offenders sentenced to the registry, according to the Pittsburgh Tribune-Review. In contrast, Ohio would have lost only about $2 million for non-compliance during the same period.
[Updated Aug. 19, 2012] You can still access Ms. Clark's article here.

Posted by Marcia Oddi on Thursday, January 05, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Gary Plunkitt v. Beckoning Way Community Association (NFP)

First Midwest Bank, successor in interest to Bank Calumet, N.A. v. Dean Vander Woude and Timothy Koster (NFP)

NFP criminal opinions today (4):

John C. Cole, Jr. v. State of Indiana (NFP)

Rashaad Michael Hogan v. State of Indiana (NFP)

Donyea Fowler v. State of Indiana (NFP)

Curtis E. Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 05, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Indy Star subject of age discrimination suit

"Former Indianapolis Star columnist’s age discrimination claim set for jury trial in U.S. District Court on April 24" is the heading of a press release the ILB has received A quote:

The claim by former Indianapolis Star columnist Susan J. Guyett that her layoff from the newspaper in December 2008 resulted from age discrimination has been scheduled for trial by jury in United States District Court starting April 24. The Indianapolis Star is owned by Gannett Co., Inc.

In December, Chief Judge Richard L. Young denied a motion by the Indianapolis Star to end the case. In his 17-page order, Chief Judge Young said that the explanations by Star Editor and Vice President Dennis Ryerson for terminating Guyett while retaining younger staffers – and replacing her as columnist with a younger reporter – were contradictory and provided evidence supporting her claim sufficient to require a jury’s verdict on the age discrimination claim.

“Plaintiff [Guyett] has cast doubt on the Star’s proffered reasons for the termination, and, accordingly her claim of discrimination is to be determined by a jury,” Chief Judge Young wrote in his order. The claim cites violation of the federal Age Discrimination in Employment Act (ADEA).

Guyett’s attorney, Kathleen A. DeLaney of DeLaney & DeLaney LLC in Indianapolis, IN said that the evidence showed that the Star artificially structured its layoff criteria to get around the paper’s union contract seniority protections and to hide age discrimination. “Instead of following the seniority provision in a fair and appropriate manner, the Star attempted to manipulate the provision’s meaning after the fact to justify Ms. Guyett’s termination,” she said. “The Star terminated Ms. Guyett under false pretenses and replaced her with a reporter twenty years younger.”

Susan Guyett wrote the popular “Talk of Our Town” column in the Star, the successor to the “Cityscape” column that she proposed to the Star, from 1999 until December 2008. At the time of the Star layoffs in December 2008, Guyett was 59 years old and had received positive performance appraisals. In fact, Ryerson had described her as “uniquely qualified” to handle “a very unusual beat,” according to Chief Judge Young’s order. * * *

The trial is scheduled to begin Tuesday, April 24, 2012, at 9:00 a.m. at the Birch Bayh Federal Building and United States Courthouse in Indianapolis.

More here from Poynter.com.

Posted by Marcia Oddi on Thursday, January 05, 2012
Posted to Indiana Courts

Ind. Gov't. - "Deaf inmate claims unequal phone access"

Elizabeth Lundblad has this story in the New Castle Courier Times - some quotes:

The American Civil Liberties Union of Indiana is representing a deaf inmate at New Castle Correctional Facility who alleges his civil rights are being violated.

In the lawsuit, Robert David, 41, claims NCCF is violating his rights under the federal Rehabilitation Act and the Americans With Disabilities Act by not allowing him equal access to a special telephone for people with hearing disabilities. * * *

"The ADA requires comparable access," said Ken Falk, legal director for the ACLU of Indiana.

The fact that a private correctional company, the GEO Group, runs the New Castle Correctional Facility does not alter federal laws, Falk said.

"The same rules apply. It is a privately run facility, but he is a DOC prisoner," he said.

Posted by Marcia Oddi on Thursday, January 05, 2012
Posted to Indiana Government

Ind. Courts - "Attorneys say drunken driving retrial would be double jeopardy"

This story yesterday by Ruth Ann Krause of the Gary Post-Tribune may be of interest.

Posted by Marcia Oddi on Thursday, January 05, 2012
Posted to Indiana Courts

Ind. Courts - "St. Joe. Courthouse cell phone ban met with surprise"

Recall the stories several years back on the Allen County cellphone ban? See, for instance, this ILB entry from March 28, 2008 commenting on the reactions to the 2007 ban.

As I read this long story today by Mary Kay Malone in the South Bend Tribune, I thought -- "I might be reading the Allen County story with the name changed; the reactions are exactly the same!" From today's story:

SOUTH BEND -- A new ban on cell phones at St. Joseph County courthouses has caught many people by surprise, causing some to store the phones in unusual places while they attend court hearings.

This week, people have been placing their phones on the building's ledges, behind snow piles, even in a trash can.

"(The phones) can't come in here," said St. Joseph County police Lt.Ron Gerkey, who worked security at the main courthouse's front entrance on Wednesday. "We can't hold them. So if people want to hide them, stash them, give them to a friend, keep them outside, that's fine."

The new rule took effect on Tuesday, and prohibits the public from bringing any electronic device -- including cell phones, iPads, iPods -- inside St. Joseph County courthouses.

Posted by Marcia Oddi on Thursday, January 05, 2012
Posted to Indiana Courts

Environment - "Deadline nears for fertilizer rule comment"

Eric Weddle has the story in the Lafayette Journal Courier.

Note that because the law has changed so that it is the state chemist, not IDEM, adopting rules, the rulemaking process is not the same as that required for IDEM rules. From the story:

The public comment period for a new fertilizer regulation that will affect farmers statewide ends this weekend.

Under the rule, farmers or other fertilizer applicators would have guidelines of how and where they can spread manure and be required to keep certain records.

The rule is the result of a change in law last year allowing the state chemist to adopt rules that will help keep fertilizer from contaminating water.

Matt Pearson, of the Office of Indiana State Chemist at Purdue University, said the proposed rules are intended to make clear the requirements for staging, setback and application of fertilizer statewide.

The office at Purdue will consider the comments before the rule is forwarded to the attorney general's office and then Gov. Mitch Daniels for approval.

The proposed rule specifies how fertilizer can be safely stored on farms until its use -- called staging -- and how far from waterways and wells it can be applied and under what conditions, such as frozen or snow-covered ground.

As part of the proposal, certain types of fertilizer would require 500-foot setbacks from public water supply wells.

The rule also would require distributors and applicators of inorganic and organic fertilizer to keep records on how much and where fertilizer was spread.

More info via the State Chemist website.

Here is a long list of ILB entries involving the State Chemist.

Posted by Marcia Oddi on Thursday, January 05, 2012
Posted to Environment

Ind. Courts - Ordinance Courts?

Masson's Blog has a post today on HB 1066, which would "allow a city, town, or county to establish an ordinance court for the purpose of (as the name would suggest) adjudicating ordinance violations."

Posted by Marcia Oddi on Thursday, January 05, 2012
Posted to Indiana Courts

Ind. Courts - "Clark County courts have new names: consolidation takes efect"

Matt Thacker has the story here, in the Jeffersonville News & Tribune. Some quotes:

Clark County’s court consolidation took effect with the start of the new year, eliminating the superior courts.

Clark County Circuit Court is now Clark County Circuit Court No. 1. Superior Courts No. 2 and No. 3 were renamed Circuit Courts No. 2 and No. 3, respectively. Superior Court No. 1 is now Circuit Court No. 4.

“We hope a lot of this will be eliminating some of the confusion about the different names of courts,” said Circuit Court No. 1 Judge Dan Moore, who led the consolidation efforts.

Circuit courts in Indiana are established by the state constitution, while superior courts are created by state statutes. Circuit and superior courts generally have the same jurisdiction.

“Trial courts have different names primarily due to accidents of legislative history and local custom, not true differences in the nature or purpose of the courts,” according to the state judiciary’s website.

A bill passed earlier this year allowed for the consolidation of courts in Clark, Henry and Madison counties. Moore said five counties in the state have this unified system.

“It would be my belief this probably would become statewide legislation,” Moore said. “I think it’s very modern.”

He said the judges have done a good job in recent years of transferring cases. If a defendant has three pending cases in different courts, those will often be transferred to one court.

As a result of the consolidation, the courts will now submit a combined budget, and they will be able to transfer cases between county and municipal courts. There will now be one probation department for the county rather than one for each court.

Posted by Marcia Oddi on Thursday, January 05, 2012
Posted to Indiana Courts

Law - "Obama Tempts Fight Over Recess Appointments" [Updated]

Recess appointments by the President have been touched on in several ILB entries over the years, including this one from Feb. 10, 2010 headed "Possible recess appointment for Dawn Johnsen floated."

Charles Savage of the NY Times has a good post yesterday explaining the recess appointment issues - some quotes:

President Obama’s decision on Wednesday to grant recess appointments to four officials — even though the Senate contends that it is not in recess — was an unprecedented legal step that brought into sharper focus a recent bipartisan struggle over presidential power.

In early 2007, shortly after Democrats took control of the Senate, President George W. Bush made several recess appointments. But in November 2007, Senate Democrats did not formally recess before going home for Thanksgiving. Instead, they stayed in “pro forma” session, sending a member into the chamber every three days to bang the gavel.

Senate Democrats repeated the move during breaks for the rest of Mr. Bush’s presidency, and Mr. Bush did not try to make any further recess appointments. Under President Obama, Republicans – despite being a minority in the Senate — turned the tables by also keeping the chamber in pro forma session.

The development raised the prospect that Congress had found a way to permanently take away the power of presidents of either party to make recess appointments. * * *

“Can the Senate, through form, render a constitutional power of the executive obsolete?” Kathryn Ruemmler, Mr. Obama’s White House Counsel, said in an interview. “Our view is that the answer to that question is clearly no.”

But the Senate minority leader, Mitch McConnell, Republican of Kentucky, denounced the move, saying that Mr. Obama had “arrogantly circumvented the American people” and endangered “the Congress’s role in providing a check on the excesses of the executive branch.”

The question of whether Congress can block a president from making recess appointments by staying in pro forma session turns on what counts as a recess — and who gets to decide, legal specialists say.

Under a “formalist” view, the Senate is in session whenever it says it is in session – even if the chamber is empty most of the time and all the senators are in their home states. If that view is correct, then Mr. Obama’s appointments on Wednesday were constitutionally invalid.

Under a “functional” view, the Senate is in recess if its members are unavailable to perform the tasks the Constitution assigns to them – like deciding whether to consent to the appointment of a presidential nominee.

The story continues, in much more detail.

BTW, Kathryn Ruemmler, Mr. Obama’s White House Counsel, holds the position to which Dawn Johnsen originally was nominated.

[Updated] Another good newspaper blog entry, this time from Ed O'Keeefe of the Washington Post, looks at "What is a recess appointment?"

Posted by Marcia Oddi on Thursday, January 05, 2012
Posted to General Law Related

Ind. Courts - "Tippecanoe judge issues cellphone, camera ban for upcoming trial" [Updated]

Sophia Voravong reports today in the Lafayette Journal Courier:

A Tippecanoe County judge is banning visitors from using cellphones, cameras and recording devices on portions of the third and fourth floors of the Tippecanoe County Courthouse during an upcoming attempted murder trial.

The special order was made by Judge Thomas Busch of Tippecanoe Superior Court 2.

Signs went up Friday at the courthouse’s public entrance, elevator and other locations. * * *

Busch's order says cellphones, cameras and recording devices cannot be used on the south side of the courthouse's third and fourth floors, around the rotunda of both floors or near Superior Court 2 or the jury room on the third floor.

County employees, elected officials, judges, attorneys handling court business and emergency responders and exempt from the ban.

The mandate comes two weeks after officials thought that an acquaintance of a defendant in a drug case took a photo of a deputy prosecutor as she exited the courtroom. As it turned out, the acquaintance snapped a photo of the defendant just as the deputy prosecutor walked by.

[Updated] Here is a longer, updated version of the story.

Posted by Marcia Oddi on Thursday, January 05, 2012
Posted to Indiana Courts

Ind. Law - Indianapolis attorney Douglass R. Shortridge dies at 80

This morning's Star has a tribute to Mr. Shortridge written by former Star reporter and Shortridge friend, Joe Gelarden. He tells of how Doug Shortridge fought for the rights of Fred Sanders, long before the Barnes case. A snippet:

In the late 1980s, his sniff test was the reason [Shortridge], a respected business lawyer, a Woodstock Club/Traders Point Hunt kind of guy, took on the city, its police department and the "establishment" when he agreed to defend a cop killer.

Fred Sanders, a Catholic schoolteacher, was inside his own house one evening, when police stormed in after he declined to talk to them about a barking dog complaint. Fred had a shotgun inside his home and he used it. A policeman was shot and later died.

A quote from the Indianapolis Star obituary of Jan. 2, 2012:
Mr. Shortridge was both a business lawyer and a trial lawyer in Indianapolis for 52 years. He represented a local family business for over 48 years. He also tried many court and jury cases in both state and federal courts in central Indiana during his long career. He was president of the Indianapolis Bar Association in 1974. Later in his legal career, he pursued a passion for representing Indiana citizens in their desire for justice when their voices might not otherwise be heard.

Posted by Marcia Oddi on Thursday, January 05, 2012
Posted to Indiana Law

Wednesday, January 04, 2012

Ind. Gov't. - Perry County judge rules meetings did not violate Open Door Law

This is all the ILB knows about this right now, from WITZ NEWS:

January 03, 2012 - The City of Jasper and officials got good news from their perspective from Judge Lucy Goffinet of Perry County Circuit Court this morning: The lawsuit brought by Health Dubois County against the City of Jasper on the grounds of violations of open door laws regarding meetings on the Jasper Power Plant plans to burn Miscanthus grass as a biomass fuel source has been rejected. Judge Goffinet found that there were no violations and that Healthy Dubois County did not prove its case against the City.

In a related event, City of Jasper principals have signed off on the lease with Jasper Clean Energy LLC that will allow the conversion of the power plant to move forward. The signing of the lease was not made public until after the decision came from Goffinet so as to not appear to influence the judicial process by the judge in the case. Those who signed the lease included former Jasper Mayor Bill Schmitt, former City Attorney Sandy Hemmerlein, Utility Service Board President Wayne Schuetter and Jasper Clean Energy President Jay Catasein. The signing of this lease took place on Thursday, December 29th. The reason for the signing before the end of December is so that those who created and have their names on the lease could sign it before they left office. Jasper Clean Energy has the green light to move ahead with their part of the lease and as stated in previous meetings, the hurdles to getting that done will be major. Included in those hurdles will be Federal and State regulatory approvals, and perhaps the most difficult will be obtaining financing to fund the entire project to the specifications of the lease.

Posted by Marcia Oddi on Wednesday, January 04, 2012
Posted to Indiana Government

Ind. Gov't. - "Judge Rules in Linda Belork Case"

"Ted" reports today from K99.3 WKVI FM in a story that begins:

Jasper County Circuit Court Judge John Potter ruled yesterday in favor of the Starke County Commissioners in a suit involving former Starke County Treasurer Linda Belork.

The case involved Belork’s removal from office on August 13th after a state audit turned up financial discrepancies. Belork’s attorney, Ethan Lowe, had argued that the Commissioners did not have the right to remove Belork from office. He argued that only the state’s Attorney General had the right to do so.

Potter handed down a decision saying the county officials did have the right to remove her, deciding the Attorney General was not the only official that had that right.

Here are earlier ILB entries concerning former Starke County Treasurer Linda Belork's removal.

The ILB is attempting to obtain a copy of Judge Potter's ruling.

Posted by Marcia Oddi on Wednesday, January 04, 2012
Posted to Indiana Government

Environment - "SB 184 – Unlawful Recording of Agricultural operations"

Masson's Blog points to SB 184 and writes:

This appears to be an effort to prevent undercover videos of confined feeding operations from being taken [SEE NYT story]; based on the notion that, if people actually saw what was going on in some of these places, they might not like it.

Posted by Marcia Oddi on Wednesday, January 04, 2012
Posted to Environment

Ind. Gov't. - "Armed with impressive resume, Gary Mayor Karen Freeman-Wilson faces tall order"

From the Chicago Tribune, this long Jan. 2nd story by Andy Grimm. Some quotes:

It falls to Freeman-Wilson to take on the challenges that have daunted Gary mayors for at least two generations.

Freeman-Wilson, 51, brings to the post degrees from Harvard and Harvard Law, as well as job experience that includes stints as Gary's city judge and Indiana's attorney general. She is the first woman to be mayor in Gary history.

The role has never been more important.

Over the past three years, state-mandated tax caps have cut city tax revenue by more than half, to $30 million — $10 million less than last year and about what the city spent just on its police and fire departments in 2008.

Despite budget cuts by her predecessor that eliminated at least 100 city workers, an eroding tax base has prompted state auditors during the past two years to question whether Gary can "continue as a going concern." * * *

Freeman-Wilson has staked out the city's salvation on rebuilding the tax base around transportation. As she takes office, a $25 million expansion of the city's airport is set to begin, with upgrades intended to make Gary-Chicago International Airport a viable alternative to overcrowded O'Hare and Midway airports.

She also wants to promote the city, which is traversed by three interstates, multiple state highways and three rail lines, as a hub for train and truck traffic.

Perhaps more immediately, she hopes to start selling off — for prices as low as a dollar — the city's massive inventory of abandoned and untaxed homes and buildings.

As he left office, Clay pointed to a half-billion dollars' worth of projects that could be largely completed within Freeman-Wilson's first term.

The problem is, the city could be bankrupt within her first six months, thanks to the plummeting revenue and crippling debt payments, said Joe Gomeztagle, one of the state's leading tax experts.

"It's a tsunami," said Gomeztagle, who was born and raised in Gary. "It's going to hit all of the older cities across the state, but it's going to hit Gary first, and it's going to be bad. I give it six months, maybe a year."

The city had petitioned the state for relief from the tax caps, a process that made Gary finances a topic of debate statewide and led to a series of deep budget cuts, not unlike the drama attending the bailout discussions in Europe. And they focused outsize attention on Clay.

Posted by Marcia Oddi on Wednesday, January 04, 2012
Posted to Indiana Government

Law - "Hiring Law Students for Free Online Research Is Widespread and Unethical, Opinion Says"

Thanks to the ABA Journal Blog for spotting this Nov. 15 opinion by the Utah State Bar Ethics Opinion Advisory Committee. A quote from the ABA blog:

Budget-minded lawyers who think they can hire law students for their free access to Lexis and Westlaw should think again, according to a Utah ethics opinion.

A lawyer who uses law students to access free online research violates ethical rules, according to the [opinion].

Posted by Marcia Oddi on Wednesday, January 04, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In In the Matter of the Estate of Florian T. Latek; Nicholas G. Grapsas, et al. v. Gerald Ronneau, a 21-page opinion, Judge Friedlander writes:

In this interlocutory appeal, Nicholas Grapsas, the Illinois Public Administrator of the Domiciliary Estate of Florian T. Latek (Illinois Public Administrator), and Nicholas Padezan1 (collectively, Appellants) challenge the trial court’s order denying their Motion to Dismiss a Petition for Probate of Will and for Issuance of Letters Testamentary filed by James S. Bozik in the Porter Superior Court and separate order admitting to probate the Last Will and Testament of Florian T. Latek (Latek’s Will). Appellants present four issues for our review, which we consolidate and restate as:
1. Do principles of res judicata or full faith and credit apply so as to preclude the probate of Latek’s Will in Indiana?
2. Was sufficient proof submitted to permit Latek’s Will to be admitted to probate in Indiana?
3. Did the trial court abuse its discretion in naming Bozik personal representative of Latek’s Estate?
We affirm.
NFP civil opinions today (0):

NFP criminal opinions today (2):

Santos Ulloa v. State of Indiana (NFP)

Deshawn Grigsby v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 04, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Indiana governor rescinds Statehouse crowd limits"

Story here from Eric Bradner of the Evansville Courier & Press.

Here is Mary Beth Schneider's story in the Indianapolis Star.

Posted by Marcia Oddi on Wednesday, January 04, 2012
Posted to Indiana Government

Ind. Gov't. - Statehouse entry restrictions ....

An attorney writes the ILB with a question I can't the answer:

As I read your posts on the security changes, I noticed that registered lobbyists to the executive and legislative branch have access to the Statehouse and avoid security. I was wondering if there is something similar for attorneys, like myself, who regularly file with the Appellate Clerk at the Statehouse to obtain similar access. I know that the City-County Building has a process for obtaining an ID badge to avoid standing in line at the metal detector. If you happen to know, I think it might be helpful if these changes actually do impact filing by attorneys. Could our attorney number card be considered such a thing?

Posted by Marcia Oddi on Wednesday, January 04, 2012
Posted to Indiana Government

Ind. Gov't. - Charlie White can remain in office for now [Updated]

That is what Judge Rosenberg ruled this morning, but I haven't seen the opinion yet.

Earlier today, the Indianapolis Star had this story by Carrie Ritchie on why the ruling is important.

[Updated at 9:50 am] Here is the 2-page "Entry on motion for stay of execution." Here is the reasoning:

A Motion for Stay is committed to the sound discretion of the trial court. In exercising that discretion in this case, the Court believes that the public interest is paramount to any other consideration, including the interests of the named parties. The Court must therefore carefully compare the likely consequences of granting or denying these Motions.

If the Court grants the stay and its decision is upheld, there will be irreparable harm to the public measured by the delay in implementing the trial court's decision. The appellate courts may, however, expedite the consideration of an appeal. Thus, whatever harm may result from a granting of the stay can be minimized by the appellate courts.

If the Court grants the stay and its decision is reversed, no harm would result.

If the Court denies the stay and its decision is reversed, however, the negative consequences would be great and irreparable. If White were removed pursuant to this Court's Judgment and then reinstated as a result of reversal on appeal, key personnel currently serving under Mr. White might bccome unavailable in the interim. Important decisions might be twice reversed causing confusion on many important issues. The denial of a stay together with a subsequent reversal would unnecessarily weaken the performance of the Secretary of State regarding many critical functions, not the least of which is the oversight of the forthcoming general election.

It is true that turmoil may be unavoidable even if this Court grants the stay. If the criminal proceedings end in a conviction of White on felony charges, there may be a controversy as to how Mr. White's successor would be selected. This Court will not speculate, however, on how or even when that proceeding will conclude.

The Court rejects the Order tendered by the Petitioner. It unnecessarily injects the Court in issues not before it e.g. the method of selection of a successor to White, if he is convicted of a felony.

For all of the above reasons, the C01ll1 GRANTS THE Motions for Stay of Execution of its Judgment of December 22,20 II pending appellate review. No Appellate bond is required.

Posted by Marcia Oddi on Wednesday, January 04, 2012
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending December 30, 2011

There were no transfer dispositions this week.

Posted by Marcia Oddi on Wednesday, January 04, 2012
Posted to Indiana Transfer Lists

Ind. Gov't. - "I can't let somebody filter who gets to talk to me, and let those who are paid to represent positions be free to talk to me and other people can't."

Here is the complete quote:

Rep. Ed DeLaney, D-Indianapolis, said he's decided he will not meet with any lobbyist until this rule is rescinded.

"I cannot allow some groups to be favored over others," he said. "I can't let somebody filter who gets to talk to me, and let those who are paid to represent positions be free to talk to me and other people can't."

It is from Mary Beth Schneider's comprehensive story today in the Indianapolis Star, headed: "Statehouse rules limit access to Indiana lawmakers." More from the lengthy story:
Want to take an issue to the Indiana General Assembly when lawmakers return to work today? Get in line.

Literally.

Under new policies announced by the state, access will be limited to about 3,000 people. Sort of.

And members of the general public will have to enter only through the east entrance -- except for all the people who don't.

Those folks include not just government employees, but lobbyists, reporters, anyone attending a special event such as a school tour or today's prayer day, anyone with an appointment or court hearing, and anyone whom a legislator has told State Police to let in, such as people the lawmaker wants to testify for a bill.

Those with state-issued ID badges can enter anywhere; those without them but with the pre-approved access must go to the west entrance.

Everyone else? Get in line at the east entrance and hope there's room. Doors open at 7:30 a.m. today, with the House and Senate going into session at 1:30 p.m. * * *

Critics ... say it is aimed at one thing: Stifling the labor union protests that filled the Statehouse last year and are expected to be even more clamorous this session as the legislature debates the so-called "right to work" issue. The law, which is the top priority of Gov. Mitch Daniels and the GOP legislative leaders, would ban companies and unions from negotiating contracts that require non-members to pay fees.

[State administration officials] Bursten, Wynkoop and Greeson pointed to last year's protests as highlighting the need for rules on the number of people in the Statehouse and what they can do inside.

"Until last year, this wasn't an issue," Bursten said. * * *

The Government Affairs Society of Indiana -- which lobbies for lobbyists -- sent its members a memo saying lobbyists without state-issued ID badges can still enter through the west entrance, avoiding any lines at the east entrance. They will have to go through the metal detectors as does anyone without the ID badge, but "the officers will have a list of all lobbyists, and you will be allowed entry to the building," the memo stated.

Treating lobbyists differently from the rest of the public "smacks of closed government," [Julia Vaughn, who lobbies on public access and government issues for Common Cause/Indiana] said. "You don't need to have a legislator's blessing to show up at the Statehouse and offer your point of view."

Getting people to come to the Statehouse "is a tough sell already," she said, "and believe you me, it's going to be impossible if we cannot guarantee people they cannot get in the building."

Niki Kelly's story today in the Fort Wayne Journal Gazette addresses all the "nuts and bolts" isssues:
INDIANAPOLIS – Gov. Mitch Daniels’ administration has set up a three-tiered Statehouse security policy that seems to favor some Indiana citizens over others for entry into the Capitol building.

Those in the first two levels – including employees, lobbyists, credentialed media and those on special lists to testify or attend scheduled events – receive priority. Regular citizens must stand in line and hope there is room in the building, according to clarifications about the policy issued Tuesday.

It is just one part of a Statehouse security crackdown that is causing concern. On Tuesday, Indiana State Police told one college student to throw out her can of Dr Pepper from her lunch bag. Officials later said cans are no longer allowed because they are “potentially dangerous,” but then pointed out that cans are available for purchase inside the building.

Also Tuesday, new signs set aside use of one of four elevators exclusively for elected/appointed officials and staff. * * *

Julia Vaughn, director of Common Cause Indiana – a nonpartisan group aimed at citizen participation in the political process – said the changes are offensive and ill-conceived, even suggesting someone might sue.

“It smacks in the face of open government. It takes the people’s house away from the people,” she said. “What problems were there last year? It’s a big hassle but I saw no safety problems. It’s Hoosiers’ right to be there and be loud as long as they are peaceable.

“That’s part of democracy. Sometimes democracy gets loud and messy.”

State officials unveiled the new policies, including a new 3,000-person occupancy cap, on Friday.

They get their first test today – the start of the legislative session – because union protesters are expected to be out in force against the proposed right-to-work bill.

Last year there were sustained protests for several weeks.

In response, Greeson came up with the 3,000-person limit – there has never been a documented occupancy limit before – for the 217,000-square-foot building with massive stairways and 12 exits.

Much of the criticism is not with the 3,000 number, but more that some Hoosiers are given special access.

The first-tier consists of about 1,500 Statehouse badge holders. This group largely consists of state employees and lawmakers, but it also includes a small number of credentialed media who have offices in the building; and 254 lobbyists who paid $100 for passes to avoid security and assorted contractors. The Journal Gazette has one of these passes.

People in this group is always counted as being in the building even if they aren’t present, automatically reducing the 3,000 limit by 1,500.

The next group includes about 200 people a day who are visitors attending scheduled Statehouse events, such as awards presentations; attorneys appearing before supreme and appellate courts and school tours.

Wynkoop said an unknown number of additional people can be put on a special list with preferred status by legislators to visit the building, testify on bills at public hearings, attend a session to be honored or meet with lawmakers.

It is unclear how many this tier could hold on a daily basis because legislators have never kept such lists before.

Whatever number of people not taken up in the 3,000 limit from the first two tiers will be available for citizens standing outside at a separate entrance hoping to gain access.

This includes citizens not on a special list to testify, people wanting to visit the historic building, someone who wants to hear a Supreme Court oral argument or other activity in the building.

Last year, Wynkoop said the building rarely hit the 3,000 limit, so he doesn’t expect it to be a problem very often.

State Police officers will now be posted at previously-unmanned exits to try to count those who leave, but officials conceded the numbers won’t be exact.

Some state lawmakers offered harsh reaction to the new limits, while others are waiting to see how it works.

“It is a tradition for Hoosiers to come to the Statehouse to testify, rally, support, oppose – participate in our constitutional government,” said Rep. Win Moses, D-Fort Wayne. “This is the worst attempt to suppress opposition in Indiana history.”

He noted that legislators have never before kept daily lists of citizens visiting the Statehouse and doesn’t think it will be possible to sign up ahead of time for fast-moving committee hearings. He also said some legislators might not want to put people on a list who oppose their bills.

ILB: In short, it looks like all the "what about" questions asked in this Dec. 30th ILB entry have been addressed in the latest version of the administration's policy -- those have been carved out as exceptions to the policy, leaving the new restrictions applicable only to citizens coming to the Statehouse to petition their government.

[More] "New rules at Statehouse under scrutiny: Critics question constitutionality of new measures," a story today by CNHI's Maureen Hayden in the Logansport Pharos-Tribune. A quote:

Ken Falk, the legal director of the American Civil Liberties Union in Indiana, said the new rules raise issues about limits on free-speech rights that are protected by the Constitution and upheld by court rulings.

“There a lot of questions about how the rules were made and how they'll be enforced,” Falk said. “We're looking into it.” * * *

Falk said the courts have allowed government units to impose limits on free speech, but the limits must be “narrowly tailored” and must be applied in a “content-neutral” way.

That means the rules must be applied to all Statehouse visitors, Falk said, and not just the ones that might be voicing opposition to bills supported by the Republican-controlled Legislature.

"New Indiana Statehouse security rules limit protesters, signs, canned drinks," is the headline to this story by Eric Bradner in the Evansville Courier & Press. Some quotes:
INDIANAPOLIS — Staffers, journalists and 254 registered lobbyists. School groups and sports teams, organizations that have scheduled events and individuals that lawmakers have lined up to testify on their bills.

They all qualify for preferred access to the Statehouse under new security policies — including a maximum capacity of 3,000 people — that Gov. Mitch Daniels’ administration has announced just before Wednesday’s start of the Indiana General Assembly’s 2012 session.

Those who don’t make the cut: Hundreds of pro-labor protesters who could to pack the Statehouse each day to oppose the “right to work” measure that Daniels and majority Republican legislative leaders intend to push.

They’ll join other members of the public who have two options. They can convince a lawmaker to add them to a guest list counted as part of that 3,000 before others are admitted in, or they can stand in line at the one Statehouse entrance that is open to all — until the cap is reached.

Controversy over the new rules bubbled up Tuesday, just before the start of a session where the debate over “right to work” — which allows workers to opt out of paying union dues — will start immediately.

A tweet this morning:
nkellyatJG Niki Kelly: A few union folks have already made it in the heavily-guarded Statehouse. It's weird to see police at every entrance & a bomb-sniffing dog.
Another:
marybschneider Mary Beth Schneider: More police than I recall ever seeing anywhere. Are hoosier citIzens really that frightening?

Like an armed camp at statehouse. More state police than I've ever seen. What assignments were they pulled from for this?

Posted by Marcia Oddi on Wednesday, January 04, 2012
Posted to Indiana Government

Tuesday, January 03, 2012

Ind. Gov't. - On Dec. 31st, two protesters arrested at Howard County Courthouse

Here is the long story by Daniel Human of the Kokomo Tribune. Some quotes:

Kokomo — A dollar bill taped over a mouth led to the arrest of two protesters Friday at the Howard County Courthouse.

Protesters Darren M. Burke, 38, and Greg Lambert, 52, both of Indianapolis, face misdemeanor preliminary charges after the incident.

Members of Occupy Kokomo and related movements around the state had been rallying outside the courthouse that morning with permission from the Howard County commissioners.

They walked into the building, where Sheriff Steve Rogers met them at the security check-in.

Lambert told the sheriff he and his companions planned to return Monday with signs, at which point both parties turned and walked away.

Protester David Fox called Rogers back to speak with him. A moment later, the sheriff noticed Burke, who had been using a computer tablet to film the entire rally that morning.

Behind the electronic device, the Occupier was wearing a dollar bill over his mouth, a biohazard sticker on his cheek and his sweatshirt’s hood was over his head.

Rogers decided Burke was violating a court order that prohibited masks in the courthouse.

“Take your mask off,” Rogers told Burke.

“I don’t have a mask on,” Burke responded.

“I don’t care. Take your mask off,” Rogers said.

The sheriff then grabbed at Burke’s face as the protester turned around and shouted “Get off me. I’m going outside.”

Rogers and deputies pushed Burke into a wall, at which point Lambert became involved in the fray. Occupiers said Lambert was trying to protect Burke’s tablet.

After tackling Burke to the ground, Rogers placed him in handcuffs and he was taken to the Howard County jail * * *

For Friday’s protest, Howard County Superior Court I Judge William Menges issued a court order that barred anyone from wearing a mask into the courthouse, Rogers said in his statement.

Commissioner Bill Thompson, who was in the building at the time of the incident Friday but said he did not see it, said the mask rule was like any other set in place in a courthouse.

“It doesn’t have anything to do with what you say or what you do,” Thompson said. “It doesn’t matter as long as you comply with the rules. It wasn’t the speech that they were confronting. It was a violation of the rules. All persons, not just Occupy, have to abide by the rules of the courthouse.”

Fox said after deputies arrested Burke and Lambert that the dollar bill on Burke’s mouth represented “silent protest.”

“If you want silent, then we’re silent,” Fox said.

Posted by Marcia Oddi on Tuesday, January 03, 2012
Posted to Indiana Government

Ind. Gov't. - "None of the bills are available yet for the public to read, though. "

That is how this brief story by Niki Kelly, posted this afternoon on the Fort Wayne Journal Gazette website, ends. More:

The controversial right-to-work bill will be heard in a joint meeting with the House and Senate labor committees Friday at 9 a.m. in the House Chamber.

A bill instituting a statewide smoking ban will be heard Monday at 10:30 a.m. in the House chamber, with a vote possibly coming Jan. 16th.

Other issues to be heard in the first two weeks include bills on public mass transit; government reduction; and local government reform.

Posted by Marcia Oddi on Tuesday, January 03, 2012
Posted to Indiana Government

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

Updating this entry from earlier today, Twitter contains the news that one of the Statehouse elevators has now been converted to a “staff and elected officials only” elevator.

Matt Tully of the Indianapolis Star has linked to his tomorrow's column. The title: "Statehouse restrictions will hurt more than union rallies." A sample:

In the end, here’s my biggest problem with the new security rules: they have been arrogantly tossed down by state officials without fully considering the impact on ordinary Hoosiers. Those crafting the policy should have had as their goal passing rules that, while providing safety, seek to ensure as much public openness as possible. Every new restriction should be a last resort.

When lawmakers gathered in November, House Speaker Brian Bosma, R-Indianapolis, celebrated the many "historic transparencies" the House has adopted in recent years, such as making sure all House proceedings are available on the Internet. Those changes have been wonderful, and Bosma, who has long championed them, should be at the front of the line of critics of this new policy. He might consult with Sen. Mike Delph, R-Carmel, who has questioned the constitutionality of the new policies. * * *

Since learning of the new policy, I’ve had this vision: On a cold winter morning sometime this month, four Indiana residents get in their respective cars and head for Indianapolis: A home-school advocate from Marion, a union worker from Evansville, a small-businesswoman from Madison and a tea-party activist from Valparaiso. As Hoosiers before them have for generations, all four want to go to the Statehouse to express their views — whether those views are conservative, liberal, moderate or nonpartisan.

But when they arrive at the steps of the state’s most majestic building, the doors are closed. Others who got up earlier, or who had fewer miles to travel, or who were part of a better organized group, have already filled the People’s Building.

And with that, as one critic said last week, the Statehouse will be the People’s Building no longer.

WATCH FOR MORE - BTW, this is the first working day since the new policy was announced last Friday, Dec. 30th.

[More at 4:31] This tweet from TheIndyChannel: Norman Cox reports statehouse access guidelines now include placing 2 of 3 elevators off limits to the public.

Posted by Marcia Oddi on Tuesday, January 03, 2012
Posted to Indiana Government

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

In US v. Jason Smith (ND Ind., Miller), a 10-page opinion, Judge Williams writes:

On July 14, 2010, an officer with the South Bend Police Department stopped the vehicle that Jason Smith was driving when Smith failed to signal a right turn at an intersection. A search of Smith’s car yielded a loaded revolver, crack cocaine, marijuana, and a digital scale, and he was charged with being a felon in possession of a firearm, possession of crack cocaine with intent to deliver, and possession of a 2 No. 11-2016 firearm in furtherance of a drug transaction, with the indictment stating that the events took place “on or about July 13, 2010.” Smith moved to suppress the items recovered on the ground that the officer lacked probable cause for the stop because a turn signal was not required, which the district court denied. During his trial, the government proved that the traffic stop actually took place on July 14, 2010, and at the close of evidence, Smith moved for acquittal on the ground that the indictment was constructively amended based on the discrepancy in dates, which the court also denied. The jury found Smith guilty on all counts, and Smith appeals the district court’s denial of his motion to suppress and his motion for acquittal, arguing first that he did not commit a traffic violation by failing to signal because he was only bearing right. We disagree and find that under Indiana law, Smith turned right requiring a signal. Smith also argues that the government constructively amended the indictment by stating that the traffic stop occurred “on or about July 13, 2010” in the indictment, but proving a different date at trial. We find no constructive amendment, and affirm the judgment. * * *

Indiana Code § 9-21-8-25 provides that “[a] signal of intention to turn right or left shall be given continuously during not less than the last two hundred (200) feet traveled by a vehicle before turning or changing lanes.” * * *

The statute does not define “turning.” As such, we look to the Indiana courts for guidance. * * * The Oxford English Dictionary defines “turning” as “movement about an axis or centre; rotation, revolution.” Oxford English Dictionary, available at http://www.oed.com/. Headed southbound on Walnut, Smith could have made two “right” choices: a roughly 120-degree right onto Fassnacht, or a less than 90 degree (and thus much more sharp) right onto LaPorte. By going right onto Fassnacht, we find that Smith sufficiently “rotated” so that his movement was a turn under a plain reading of Indiana’s statute. * * *

The record here indicates that continuing “straight” on Walnut also includes some element of a “turn,” but in a five-pronged intersection such as this, we agree with the district court that a plain reading of the statute requires a turn signal from Walnut to Fassnacht. Accordingly, Officer Early had probable cause to conduct the traffic stop. Because we find probable cause based on Smith’s failure to signal, we do not reach the question of whether the vehicle’s window tinting provided independent grounds for justifying the stop.

Posted by Marcia Oddi on Tuesday, January 03, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on: Charlie White hearing now set for 10:00 this morning [Updated]

Hearing over, Judge Rosenberg to announce ruling tomorrow on the question of "whether White can stay in office while an appeal is pending." More IndyStar coverage:

The Democrats asked the judge for procedures that would allow Vop Osili to take over the secretary of state’s job if White is convicted of a crime before the appeals process is completed. White’s criminal trial is set for Jan. 30 in Hamilton County.
Here is the motion to stay the opinion pending appeal, filed by AG Zoeller, representing the Indiana Recount Commission.

Here is the accompanying press release.

[Updated at 2:20 pm] Here is the story from Dan Carden of the NWI Times, headed "Judge to rule on Charlie White request to remain Sec. of State." It gives the clearest explanation I've seen so far of a murky legal situation; I'm eager to see how Judge Rosenberg addresses it. A snippet from Carden's story:

Democratic attorney Karen Celestino-Horseman urged the judge to compel the Indiana Recount Commission to issue Osili a Certificate of Election, which would entitle Osili to become secretary of state.

But she said the judge should delay Osili actually taking office until the conclusion of White's criminal trial set to begin Jan. 30.

If White is convicted of any of the seven felonies he's accused of, including voter fraud, under Indiana law he immediately loses his office and Republican Gov. Mitch Daniels appoints a replacement.

The Democrats' proposal would make Osili secretary of state rather than having the governor name a replacement.

That would prevent an expected court challenge to the legitimacy of someone taking over for White, who a judge ruled wasn't eligible for office in the first place.

Posted by Marcia Oddi on Tuesday, January 03, 2012
Posted to Indiana Government

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

For publication opinions today (1):

In Steven Jackson v. State of Indiana , a 10-page opinion, Judge Darden concludes:

In summary, because a post-conviction proceeding is not the equivalent of a civil proceeding and because our supreme court has explained that a post-conviction court has authority in determining whether to accept agreements proffered in a post-conviction proceeding, we reject Jackson’s assertion that the post-conviction court was required to accept his proffered agreement in this post-conviction proceeding. Accordingly, we affirm the post-conviction court’s order.
NFP civil opinions today (1):

Deborah L. Dysert v. Review Board of the Indiana Dept. of Workforce Development and the Indiana Supreme Court (NFP) [ILB: I found no indication of why the Supreme Court is listed as an appellee.]

NFP criminal opinions today (4):

Robert O. Broyles v. State of Indiana (NFP)

Daniel Minnick v. State of Indiana (NFP)

Thomas Curry v. State of Indiana (NFP)

Edward Chandler v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 03, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - Terre Haute attorney Jim Bopp subject of another national article

"Citizen Bopp: Meet the lawyer on a crusade to topple all limits on the role of money in politics" is the title of the lengthy story by Viveca Novak in The American Prospect.

Posted by Marcia Oddi on Tuesday, January 03, 2012
Posted to Indiana Law

Ind. Gov't. - Charlie White hearing now set for 10:00 this mornring

From Carrie Ritchie's story this morning in the Indianapolis Star:

A judge could decide today how long Indiana Secretary of State Charlie White can keep his job.

Marion Circuit Judge Louis Rosenberg ruled last month that White is ineligible to hold office. White appealed and asked Rosenberg to delay his removal until a higher court hears the appeal.

Rosenberg agreed to halt proceedings until today, when he will hear arguments over whether White's removal should be postponed until the appeal process is finished.

If Rosenberg rules against White, Vop Osili, the Democrat who ran against White, will take over as secretary of state.

White's attorney, Jonathan P. Sturgill, said that removing White from office before the appeal has been heard would be premature. If White is removed and a higher court overturns Rosenberg's decision, office staff would transition twice and taxpayers would foot the bill for stationery and signage changes.

Sturgill also said he doesn't think Rosenberg's ruling is justified.

"There are substantial rights at risk right now," Sturgill said.

But Democrats, who initiated the election challenge, say White should be removed so the office can move on.

"I think that this process has gone on long enough," Indiana Democratic Party Chairman Dan Parker said.

Posted by Marcia Oddi on Tuesday, January 03, 2012
Posted to Indiana Government

Ind. Law - Some bills introduced so far ...

A Fort Wayne Journal Gazette editorial today focuses on some bills with "troublesome legal implications" introduced in this year's General Assembly, along with some intended to clean up bills passed last year. Some quotes:

Indiana’s part-time legislature has been meeting annually since 1972, with even-numbered years reserved for emergency issues and tweaking laws. For 2012, Sen. Dennis Kruse has identified local school boards’ right to require the teaching of creationism as one of those pressing issues. * * *

Kruse, a Republican from Auburn, filed a creationism bill as a state representative in 2000. It died in committee in the Democratic-controlled House, but Kruse now is chairman of the Senate Education Committee, and Republicans control both chambers. Democrats were powerless to stop any GOP education bill last year, including the voucher program under challenge in a Marion County court.

If Kruse’s “creation science” bill is approved, a legal challenge is inevitable, according to Eugenie Scott, executive director of the National Center for Science Education.

The U.S. Supreme found Louisiana’s creation-science law unconstitutional. Since the 1987 decision, efforts to chip away at the teaching of evolution have taken different approaches, but none have revived the creation-science approach offered in Kruse’s bill.

“The law is very, very clear on this,” Scott said. “If this bill is passed, it is going to be challenged, and they will lose. The case law is so strong against them.”

Aside from a bill with troublesome legal implications, others on the agenda include:

• A bill to eliminate Indiana high school class basketball.

• Legislation requiring public schools and universities to enter into a performance contract with any person or group performing the national anthem at a school-sponsored event.

• A bill that makes it legal to manufacture or possess a switchblade.

Granted, the legislature is set to address some of the clean-up issues intended for its short sessions. One proposed bill would overturn legislation approved last year to leave the names of unopposed candidates off the ballot. Another allows county auditors to require additional proof before granting a homestead deduction.

How refreshing it would be if the General Assembly avoided inevitable legal battles and limited its work to the intended use of a 30-day session.

Masson's Blog identifies another "clean-up" proposal:
Sen. Kenley’s SB 139 modifies the “e-verify” provision that took effect this summer. It requires every service contract a political subdivision enters into to have a requirement that the contractor use the federal government’s “e-verify” system for verifying that the contractor is not employing illegal immigrants. The contractor is also required to sign an affidavit.

This can become a hassle for nickel & dime contracts — for example, service contracts with poll workers for a day or so of work. All kinds of contracts with local government have to be revised. On big ones where more time has to be spent thrashing out the details, it’s no big deal; but on small ones, the required paperwork can be silly when compared to what’s going on with the contract. It’s the kind of bureaucracy that makes people hate government. Sen. Kenley’s legislation would create a $50,000 threshold before the e-verify provisions would apply.

Posted by Marcia Oddi on Tuesday, January 03, 2012
Posted to Indiana Law

Ind. Decisions - "Robo-calls suit could find new life"

The Dec. 29th Supreme Court decision in State v. Free-Eats (ILB entry here) is the subject of an editorial item today in the Fort Wayne Journal Gazette:

The Indiana Supreme Court ruled last week that the state’s ban on automated robo-calls is constitutional – but that may not be the last word.

Don’t be surprised if the ruling is appealed to the U.S. Supreme Court on First Amendment grounds. Consider the opinion of Justice Frank Sullivan, the court’s lone dissenter – and perhaps its best legal mind.

Sullivan explained in great detail how political speech is deserving of greater protection, and that the robo-calls are a financially efficient way to reach voters. The courts most often strike down laws on free-speech grounds when they are too broad; the more narrow the law, the less likely it is to limit protected free speech. “The Indiana Autodialer Law is not narrowly tailored because it burdens substantially more speech than is necessary to serve the State’s interest in protecting residential privacy,” Sullivan wrote.

Justice Sullivan was also mentioned in this week's issue of Indiana Legislative Insight ($$$):
Despite the Republican-leaning composition of the Judicial Nominating Commission, don't be surprised to see Justice Sullivan make another serious bid for the post. He's well-respected among his colleagues and the legal community for his court administration initiatives, is viewed as a nuts-and-bolts guy who can effectively run an operation such as this, and has not been perceived as a partisan in the past decade or so. He's also a law school classmate of Attorney General Greg Zoeller (R) and former AG Steve Carter (R), both of whom have always spoken only highly of him, Court of Appeals Judge Elaine Brown, and even some who have served on the trial bench.
ILB: BTW, ILI publisher Ed Feigenbaum also was in that class.

Posted by Marcia Oddi on Tuesday, January 03, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Judge orders tax protester to pay state's legal expenses"

The Dec. 28, 2011 Tax Court decision in Lyle Lacey v. Indiana Dept. of State Revenue (ILB summary here) is the subject of this story today by Dan Carden of the NWI Times that begins:

The Indiana Tax Court has ordered an Indianapolis man to pay the legal expenses the state incurred opposing his repeated claims that his income was not subject to taxation.

Judge Martha Blood Wentworth last month ordered Lyle Lacey to pay the state $1,600 for two months of work by the attorney general's office on what she deemed a frivolous appeal.

Posted by Marcia Oddi on Tuesday, January 03, 2012
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - More on "Statehouse capacity of 3,000 would limit protests" [Updated]

Updating this ILB entry from Dec. 30, 2011, here are some stories and some reactions to the administration's announcement:

  • "The chilling Statehouse access blunder" is an editorial by Brian A. Howey, publisher of Howey Politics Indiana. A sample:
    If there are public safety concerns, then Daniels and Whitesell need to bring in more State Police troopers, EMS and even firefighters. To arbitrarily restrict access to the "people's house" is either misguided bureaucracy or a blatant political power play.

    As State Sen. Mike Delph pointed out on his Facebook page: Article I, Section 31 of the Indiana State Constitution states, "No law shall restrain any of the inhabitants of the State from assembling together in a peaceable manner, to consult for their common good; nor from instructing their representatives; nor from applying to the General Assembly for redress of grievances."

    Last year's labor rallies at the Statehouse mustered in opposition to the Right to Work legislation were noisy and inconvenient. As at basketball games, people were angry. They were vigorous. And yes, some came in from other places, other states. But the Indiana Constitution makes no distinction on the numbers or the reason for people to gather or where they come from.

  • "Silencing the public," an editorial in the Fort Wayne Journal Gazette. Some quotes:
    Forget for a moment the blatant assault on Hoosiers’ rights to free speech and assembly – just consider the practical considerations of restricting access to the Indiana Statehouse.

    The massive government building that has accommodated crowds of thousands for more than a century will now be limited, under a policy announced by the Indiana State Police, to occupancy of just 3,000 – including the 1,700 people who work there each day.

    Exactly how the numbers will be limited isn’t clear – employees and visitors can be counted at security entrances, but there are multiple unsecured exits.

    Hundreds of schoolchildren visit the building, the seat of Indiana government, each year. Will their numbers displace Hoosiers seeking to make their voices heard during a legislative session? * * *

    The restrictions will hinder not just protesters but anyone who needs to visit a Statehouse office or attend a hearing.

    [ILB - And this includes an attorney arguing a case before an appellate court, or attending an oral argument, or seeking to use the Supreme Court library. OR participating or attending interviews for the Supreme Court vacancy next month.]

    Practical considerations aside, there’s the outrage over what is clearly aimed at labor protests over the right-to-work bill that Gov. Mitch Daniels and the GOP-controlled legislature intend to approve.

    “This is suppression of workers’ speech,” said Rep. Win Moses, D-Fort Wayne. “It’s a deliberate attempt to hide what they want to do, which is to destroy unions and reduce wages for working people. It’s arrogance – it’s almost beyond belief.”

    Moses said he believes the new policy originated with the administration, not the state police.

    “The people’s house – the Statehouse – is no more,” said Rep. Phil GiaQuinta, “If you’re a lobbyist representing a special interest, welcome in. If you’re a regular citizen, sorry – your house is now closed.”

    The policy might be a more clever tactic than protest permit fees proposed in Wisconsin, but it’s every bit as objectionable.

  • "Prayer group gets Statehouse access," is the heading to an AP story reported by Tom LoBianco that begins:
    A prayer group is getting special access to the Statehouse for the opening day of the 2012 session.

    People attending Capitol Commission Indiana's prayer day at the Statehouse can show a copy of an email message to skirt an expected large crowd of union members protesting the so-called "right to work" legislation on opening day Wednesday. News of the waivers emerged after state safety officials set a 3,000-person limit on the number of people in the Statehouse at one time.

  • Finally, for now, a tweet:
    DougMasson Politically convenient waivers to the State House population "safety" limits make it hard to regard as anything other than a pretext.
[More] Here is a column by Dave Bangert of the Lafayette Journal Courier, headed "Beyond the bouncers at our Statehouse." Near the end is this interest information:
The overall policy has an on-the-fly feeling to it.

An initial version sent to legislators on Friday contained more troubling rules, including a limit on lawmakers' guests to five a day, with a requirement for a 24-hour notice office to the Indiana Department of Administration.

The draft distributed also said the House and Senate also could have kept the following out of their galleries and chambers: video recorders "or any type of recording devices," battery-operated electronic devices and cameras.

No recording devices? No cameras? Wow.

Those restrictions have disappeared from the security policies and code of conduct posted on the Indiana State Police site by Monday. So maybe there's room to make more of these disappear.

Because right now, Hoosiers have a right to wonder whether they're still welcome at the Statehouse.

Posted by Marcia Oddi on Tuesday, January 03, 2012
Posted to Indiana Government

Monday, January 02, 2012

Ind. Courts - "Hurley appointed St. Joe magistrate judge"

Updating this ILB entry from Nov. 24, 2011, headed "Search is on for new magistrate judge in Mishawaka," Mary Kate Malone reports today in the South Bend Tribune in a long story - some quotes:

SOUTH BEND - In a little more than one year's time, St. Joseph County Deputy Prosecutor Liz Hurley has beaten breast cancer, continued her work prosecuting major crimes, and, most recently, been appointed a magistrate judge in Circuit Court.

“It’s been a heck of a year,” she said. “But you know, it’s been a good year, too. It taught me a lot about how blessed I am, and how full my life is with people that I love. That’s probably not a bad reminder to have.”

She assumes her new position as St. Joseph Circuit Court magistrate judge today. Hurley was appointed by Circuit Court Judge Michael Gotsch to replace David Ready, who retired at the end of 2011.

She will mostly preside over domestic relations cases, she said. She plans to keep a focus on the children in those situations, given her previous work with young crime victims and five years of private practice in family law. * * *

Circuit Court has two magistrates. Magistrate Larry Ambler will take Ready’s position in the Mishawaka division, and Hurley will take Ambler’s in South Bend. * * *

Hurley has aimed to be a judge for a while, even more after being a finalist for a St. Joseph Superior Court judgeship in 2008.

Posted by Marcia Oddi on Monday, January 02, 2012
Posted to Indiana Courts

Ind. Courts - "Acting Hammond city court judge takes bench"

Updating this ILB entry from Dec. 20, 2011, headed "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," Susan Brown of the NWI Times reports today on "Judge Pro Tempore Kenya Jones beginning a 60-day stint filling in for longtime Judge Jeffrey Harkin." Some quotes:

Justices on the state's high court were unanimous in their appointment of Jones, a longtime Gary attorney and East Chicago judge pro temp, to replace Harkin during his absence.

"The Supreme Court is interested in diversity both in the legal profession and on the bench, and we're glad that people of the caliber of Kenya Jones are willing to accept appointment when some special need arises," Indiana Supreme Court Justice Randall T. Shepard said last week.

Shepard said fellow Justice Robert Rucker knew of Jones' work in private practice and public service, and it was Rucker who on behalf of the court called on Jones to see if she would serve.

Jones, who earned her law degree in 2002 from the Indiana University School of Law-Indianapolis, was among the first students to receive a fellowship from the court-sponsored Indiana Conference for Legal Education Opportunity, Shepard said.

The program offers assistance to promising minority and other disadvantaged law students, he said. Also as a law student, Jones interned for the Indiana Supreme Court's Division of State Court Administration. * * *

Jones said she will serve on the busy bench full time for the next 60 days, temporarily forgoing her private practice and the pro temp judgeship in East Chicago.

The court is among the busiest in the county, handling about 30,000 cases a year.

The stint on the Hammond bench will expand Jones' experience on the bench, adding criminal matters to the civil cases she has handled in East Chicago beginning in May 2010.

Whether serving on the bench will whet her appetite for her own judgeship remains to be seen, she said.

Jones, who also teaches at Ivy Tech Community College in Gary and serves on the Gary Redevelopment Commission, is taking it one step at a time, she said.

"It's a different perspective as a judge than as an attorney," Jones said.

Posted by Marcia Oddi on Monday, January 02, 2012
Posted to Indiana Courts

Ind. Gov't. - "Pew: Reviews and Recommendations for State Election Websites 2010"

Thanks to the blog be Specific for this link to the new Pew study, "Being Online Is Still Not Enough," that:

... provides state-by-state reviews and analysis based on detailed criteria of [2010] election websites for all 50 states and the District of Columbia. It also includes recommendations for improving each site to better inform voters, and provides a list of best practices adopted by many states to maximize their election office’s online presence.
Indiana's score placed it in the highest category, "Good (79-100)" with a score of 82.2. See the list of "Strengths," along with the list of "Recommended Improvements" for the Indiana site here.

Posted by Marcia Oddi on Monday, January 02, 2012
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, wouldn't this be a wonderful time for you to become an ILB supporter for 2012! Please think about supporting the ILB!

From Sunday, January 1, 2012 (Happy New Year!):

From Saturday, December 31, 2011:

Posted by Marcia Oddi on Monday, January 02, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

  • No arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 1/9/12):

Thursday, January 13th

  • 9:00 AM - Indiana Department of Revenue v. Rent-A-Center East, Inc. (49S10-1112-TA-683) - The Department of State Revenue assessed additional AGI tax liability on RAC East for the 2003 tax year based on the Department’s determination that RAC East should have filed a combined AGI tax return with two of its affiliates. On RAC East’s original tax appeal, the Tax Court issued an order granting summary judgment to RAC East. Rent-A-Center East, Inc. v. Indiana Dep’t of State Revenue, 952 N.E.2d 387 (Ind. Tax Ct. 2011). The Supreme Court has granted a petition for review.

    ILB: This is a May 31, 2011 Tax Court opinion re whether the Department of Revenue properly required RAC East to report its 2003 Indiana AGI tax liability using a combined income tax return with two of its affiliates.

  • 9:45 AM - Robert L. Clark, Jr. v. Robert L. Clark, Sr. (01S02-1112-CT-690) - Robert Clark Jr. was struck and injured by a car being operated by his father, Robert Clark Sr., at a moment when Junior had exited the car to assist Senior with parallel parking. Junior filed a negligence action against Senior, and the trial court awarded summary judgment to Senior on the basis that the Indiana Guest Statute, I.C. § 34-30-11-1, bars Junior’s claim. The Court of Appeals reversed and remanded. Clark v. Clark, No. 01A02-1007-CT-759 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is a three-opinion, 2-1 vote, July 17, 2011 Not for Publication opinion where the majority opinion reversed the trial court, concluding "Because Senior's admission that Junior was not 'in or upon' the vehicle is dispositive of his affirmative defense, we hold the Indiana Guest Statute inapplicable here. Thus, we reverse and remand for proceedings consistent with this opinion."

  • 10:30 AM - Kenneth Vaughn v. State of Indiana (45S05-1112-CR-684 ) - Vaughn gave non-responsive answers while testifying at his trial on robbery charges, and despite instructions from the Lake Superior Court, he refused to stop. Vaughn was restrained for a time. The trial court denied Vaughn’s motion for a mistrial, but a majority of the Court of Appeals panel reversed and granted a new trial in Vaughn v. State, 954 N.E.2d 482 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This is a 2-1 Sept. 14, 2011 COA opinion, where the majority concluded "Muzzling and restraining Vaughn in front of the jury for this momentary outburst deprived him of an otherwise fair trial before an untainted and impartial jury. Accordingly, we conclude that the trial court abused its discretion in denying Vaughn’s motion for mistrial. We therefore reverse and remand for a new trial."

Webcasts of Supreme Court oral arguments are available here.


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

  • No arguments currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 1/9/12):

  • No arguments currently scheduled.

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, January 02, 2012
Posted to Upcoming Oral Arguments

Sunday, January 01, 2012

Law - College coaches' football contracts longer than basketball contracts?

The ILB doesn't have much to judge by. In the past it has posted the basketball contracts of the current IU and Purdue coaches, but nothing on football.

And now that I check, the ILB made the mistake of simply linking to the those documents as posted online by the Indianapolis Star. Sadly, those links now lead nowhere. Try the links in this entry from Sept. 29, 2008 as an example. This entry from Aug. 19, 2008 indicates that the no-longer-available Crean contract was 22-pages long. I remember it as fairly simple and straight-forward, but perhaps my memory is bad. I do remember for sure that it was preceded in time by a 3-page memorandum of understanding ...

This long, interesting NYT story today, written by James K. Gentry and Raquel Meyer Alexander, titled "From the Sideline to the Bottom Line," reports that "A review of the contracts for more than 40 major college football coaches reveals a wide variety of salary increases, lucrative bonuses and desirable perks." Here is a sample:

A review of the contracts for more than 40 major college coaches — including Saban, Miles and many of the other men whose teams are appearing in the B.C.S. games that begin Monday — shows that agreements that once seemed simple and straightforward have morphed into an ever more intricate combination of guaranteed salary increases, lucrative bonuses and desirable perks that cover everything from country-club memberships to free travel on private airplanes.

Where once coaches may have been paid merely an annual salary, now the bulk of their compensation often comes from the portion of their contracts that deals with media appearances and endorsement revenues. And the deals also frequently include issues as varied as how their players’ uniforms must look and whether coaches can endorse certain kinds of products or services.

“This business has changed so much,” said Robert Lattinville, the chairman of the sports division at the law firm Stinson Morrison Hecker LLP, which represents coaches in contract matters. “Twenty years ago it was not uncommon to have a coach’s employment secured with a handshake. This practice has given way to 20- and 30-page employment contracts that require a working knowledge of state and federal employment law, income taxation, and a host of esoteric N.C.A.A. and athletic conference rules and procedures. You’ve got to know a whole lot more today to understand the economics and operation of a college coach’s contract.”

A second Times story today discusses the memorandum of understanding:
When Urban Meyer was announced as the new coach at Ohio State in November, the hire was not accompanied by the signing of a contract but with the distribution of a term sheet that showed the elements of what the eventual agreement would contain.

These sheets, often called memorandums of understanding, are increasingly common, according to Robert Lattinville, the chairman of the sports division at the law firm Stinson Morrison Hecker LLP, which represents coaches in contract matters.

“You’re starting to see coaches being required to sign an M.O.U. before coming to campus before they can have the final interview,” Lattinville said. “Then the parties have the essence of the agreement in place before the press conference announcing the new coach. Ten years ago, you did the hire and then the contract.”

The Times today links to the complete text of two college football contracts: "Complete coaching contracts of Les Miles with L.S.U. and Nick Saban with Alabama," each over 40 pages long.

Posted by Marcia Oddi on Sunday, January 01, 2012
Posted to General Law Related

Ind. Law - Your law firm or court plans for Superbowl week?

The Indianapolis Star has a column today headed "Super Bowl FAQ: Answers to your most pressing questions." Among the questions:

Q. What are the odds I can work from home, so I don't have to deal with Downtown traffic?

A. On the whole, some Downtown companies are starting to think about how Super Bowl week will affect their employees' productivity, parking abilities and general focus issues, but many have yet to establish any official rules. Tony Welts, public relations director at Wellpoint for instance, says their company hasn't made any decisions what, if anything, they'll do.

So what are your firm's, or your court's, plans? Here is what the ILB has learned so far:
  • The General Assembly will not meet Thurs., Feb. 2 and Friday, Feb. 3 (and perhaps also Feb. 1st, as 3rd reading ends Tues., Jan. 31.) The Superbowl is Sunday, Feb. 5. The GA resumes Feb. 6th.

  • Governor Daniels has been quoted as saying state offices will be open during this entire period.

  • More? What about city government? What about people arrested?
[Responses]
  • Prof. Joel Schumm writes:
    I've cancelled my Friday class [at IU McKinney Law] because the NFL/Homeland Security has control of all IUPUI parking spaces on Friday, Saturday, and Sunday. Monday morning is expected to be a mess as well when 150,000 or 200,000 people all leave town on the same day.

    Can you imagine having a hearing or oral argument scheduled on one of these days? Or trying to get to work at a law firm in the middle of the chaos and street closings?

Posted by Marcia Oddi on Sunday, January 01, 2012
Posted to Indiana Government | Indiana Law

Ind. Gov't. - Senator Head chosen as Logansport City Attorney

Jason M. Rodriguez, news editor of the Logansport Pharos-Tribune, reported today:

Indiana Sen. Randy Head, who had been representing a group of retired firefighters suing the city of Logansport, is the new city attorney.

Mayor Ted Franklin announced the appointment Friday, just two days after saying his first choice, Logansport attorney Matt Barrett, could not serve in the role because of his involvement in an ongoing lawsuit against the city.

Before he could take the appointment, Head had to withdraw as co-counsel in the lawsuit where seven retired Logansport firefighters claim they were not fairly compensated for six weeks of unused vacation time after taking a buyout.

Franklin said each of the firefighters signed a document that allowed Head to withdraw from the ongoing case. * * *

Head, a Republican who was elected to the Indiana Senate in 2008, also had to wait to receive a verbal opinion from the Indiana attorney general’s office to make sure a senator could also serve as a city attorney, he said.

The Indiana Attorney General’s Dual Office Holding Guide classifies the city attorney position as a “non-lucrative” position, which is something a member of the General Assembly can hold.

Contacted Friday, attorney general’s office staff, citing attorney-client privilege, would not comment on the opinion given to Head. * * *

Head said he would be able to make the city aware of bills coming down the pike that might affect city government.

Posted by Marcia Oddi on Sunday, January 01, 2012
Posted to Indiana Government

Ind. Decisions - "Ex-Pacers player wins bar-fight issue in Indiana court"

Carrie Ritchie of the Indianapolis Star reported on the Court of Appeals Not-for-Publication (NFP) opinion in Jamaal Tinsley v. Nancy Parrish issued Dec. 30:

A lawsuit over a bar fight involving former Pacer Jamaal Tinsley should go back to a Marion County court, the Indiana Court of Appeals ruled today.

The suit stems from a February 2007 fight over an alleged coat thief at 8 Seconds Saloon on the city’s west side. * * *

Marion Superior Court judge Thomas J. Carroll defaulted Tinsley after he failed to respond to the suit and awarded Parrish $225,000. Tinsley later said he never received letters notifying him of the suit and asked Carroll to set aside his ruling. Carroll declined and Tinsley appealed.

The court of appeals ruled today that Carroll abused his discretion in denying Tinsley’s request and sent the case back to Carroll’s court.

ILB: Well, that brief description left me curious for the COA's rationale. Here are the details from the 16-page opinion itself, authored by COA Judge Brown:
Tinsley maintains that the court abused its discretion in denying his motion to set aside default judgment. Tinsley cites to Ind. Trial Rule 60(B)(1) and argues that he “established excusable neglect that warranted setting aside the default judgment” and that he and his personal assistant “had no actual knowledge of this lawsuit until after the default had been entered and Tinsley’s wages had been garnished.” Tinsley argues that he established that “had he known about this lawsuit he would have taken the relatively easy action of having his counsel from [another civil lawsuit] appear and defend this one,” that “considerable injustice would result from leaving [the] default intact due to the size of the judgment: $225,000,” and finally that “he had meritorious defenses to the lawsuit: self-defense and that he did not proximately cause Parrish’s injuries.” * * *

Default judgments are not favored in Indiana. Shane v. Home Depot USA, Inc., 869 N.E.2d 1232, 1234 (Ind. Ct. App. 2007). Any doubt as to the propriety of a default judgment must be resolved in favor of the defaulted party. Watson, 747 N.E.2d at 547. “Moreover, no fixed rules or standards have been established because the circumstances of no two cases are alike.” Kmart v. Englebright, 719 N.E.2d 1249, 1253 (Ind. Ct. App. 1999) (citing Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332, 340 (Ind. 1983)), trans. denied. “A cautious approach to the grant of motions for default judgment is warranted in ‘cases involving material issues of fact, substantial amounts of money, or weighty policy determinations.’” Id. (citing Green v. Karol, 168 Ind. App. 467, 473-474, 344 N.E.2d 106, 110-111 (1976)). In addition, the trial court must balance the need for an efficient judicial system with the judicial preference for deciding disputes on the merits. * * *

There is no general rule as to what constitutes excusable neglect under Trial Rule 60(B)(1). Id. at 1254 (citing In re Marriage of Ransom, 531 N.E.2d 1171, 1172 (Ind. 1988)). Each case must be determined on its particular facts. Id. (citing Boles v. Weidner, 449 N.E.2d 288, 290 (Ind. 1983)). * * *

Based upon the record, and in light of the issues of fact accompanying the allegations, the length of the delay, the amount of money at issue, and the absence of evidence of prejudice to Parrish by the delay, we conclude that Tinsley’s failure to respond to Parrish’s complaint constituted excusable neglect under Trial Rule 60(B)(1). See Kmart, 719 N.E.2d at 1257-1258 (holding that Kmart’s failure to respond to Englebright’s complaint constituted excusable neglect under Trial Rule 60(B)(1) and reversing the court’s denial of Kmart’s motion to set aside default judgment).

However, in order to obtain relief under Trial Rule 60(B)(1), Tinsley must also show that he alleged a meritorious defense. The rule by its terms requires only an allegation of a meritorious defense. * * *

Tinsley was required only to allege a meritorious defense and was not required to present admissible evidence to satisfy the requirement. * * *

Based upon the record, we find that Tinsley alleged a meritorious defense to Parrish’s claim which would specifically negate an element of her claim against him. See Kmart, 719 N.E.2d at 1259 (holding that Kmart presented “a meritorious defense to Englebright’s [negligence] claim, specifically negating the causation element”).

Finding that Tinsley has established that he was entitled to relief from the default judgment by demonstrating excusable neglect and a meritorious defense, we conclude that the trial court abused its discretion in denying Tinsley’s Trial Rule 60(B)(1) motion to set aside the default judgment. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Sunday, January 01, 2012
Posted to Ind. App.Ct. Decisions