Tuesday, February 07, 2012
Ind. Gov't. - "Jurors were stunned when the defense didn't call any witnesses in the voter fraud trial of Secretary of State Charlie White"
WRTV 6 has a knockout interview with the jury foreman in the Charlie White criminal trial.
Ind. Gov't. - The Supreme Court has granted transfer in Charlie White case
The Supreme Court has granted transfer to accept jurisdiction of two appeals pending in the Indiana Court of Appeals. The civil cases arise out of Marion County.
The Court is consolidating the cases into one cause number, which you can follow on the Court's docket by entering 49S02-1202-MI-73.
The Court set oral argument in the case for February 29th at 9 am.
Here is the order, dated Feb. 7, 2012.
[More] Recall that Judge Nation has set sentencing in the criminal case for Feb. 23 at 1:30 p.m.
Ind. Decisions - In order, Supreme Court affirms COA reversal of trial court ruling
In Kenny D. Lee v. State, in a one-page "published order" filed Feb. 2, 2012 and posted today, the Court writes in part:
Being duly advised, the Court grants the State’s petition to transfer jurisdiction, summarily affirms the Court of Appeals holding that the evidence was insufficient to support the conviction, and vacates the remaining opinion. See Ind. Appellate Rule 58 & 58(A)(2).Here is the Nov. 1, 2011 COA ruling.
Ind. Decisions - 7th Circuit decides one Indiana case today
This entry could also be headed "More on: 'South Bend appealing judge decision on Family Dollar property'", referencing this Dec. 22, 2011 ILB entry and those that preceded it.
In Roy Wirtz v. City of South Bend (ND Ind., Miller), an 8-page opinion, Judge Posner writes, beginning at p. 5:
The appeal is moot as well as untimely. The City does not want to unwind the sale to the high school at the price bid by the school—it does not ask to be allowed to give the money back in exchange for the use right that the City originally sought, or to give back so much of the money that it received in the sale as exceeds the appraised value.
Against dismissing the appeal on the ground of mootness the City invokes the principle that decisions of cases capable of repetition but evading review are reviewable even though moot. * * *
However, the fact that a dissolved injunction may have consequences even though the case in which it was issued is now moot is not a permissible ground for invoking the doctrine that allows the appeal of moot cases that are capable of repetition but evade review. * * *
The City overlooked a simple alternative to the convoluted maneuvering by which it sought to present its constitutional contentions to us. That was to file a timely appeal from the grant of the original injunction and ask us to stay the injunction and, more important (since a mere temporary stay would be unlikely to induce the high school to start construction on the land), to accelerate our decision of the appeal. Appellate courts can act quickly when there is a compelling reason for them to do so. Requests for stay pending appeal are common and are acted on with dispatch [cites omitted].
Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)
For publication opinions today (2):
Mitchell A. McCarter v. State of Indiana - "[W]e consider the evidence necessary to prove force or threat of force for a Class D felony sexual battery conviction."
In Benjamin Crossing Homeowners' Association, Inc. v. Rose Heide and David F. Wilkerson , a 14-page opinion, Judge Najam writes:
Rose Heide and David F. Wilkerson, residents of a planned unit development in Tippecanoe County called Benjamin Crossing, filed a complaint seeking damages and a declaratory judgment that the Tippecanoe Area Building Commission and the Benjamin Crossing Homeowners' Association could not enforce a restrictive covenant to prohibit the operation of a child care home in their respective residences in Benjamin Crossing. The restrictive covenant was also incorporated into the planned unit development ordinance for Benjamin Crossing, but state law prohibits enforcement of a zoning ordinance that prohibits the operation of a child care home in a residence.NFP civil opinions today (1):
The Homeowners' Association filed a counterclaim seeking an injunction to prohibit Heide and Wilkerson from operating child care homes in their residences. The Homeowners' Association then filed a motion for summary judgment on the counterclaim. The trial court granted summary judgment in favor of Heide and Wilkerson on the Association's counterclaim, and the Homeowners' Association now appeals. The Association presents the following issue for review: whether the trial court erred when it concluded that the Homeowners' Association may not enforce restrictive covenants prohibiting the operation of a child care home in the planned unit development where the planned unit development ordinance that adopted the covenants may not be enforced under state law. We reverse and remand with instructions. * * *
In sum, we decline to hold that the County's approval of a PUD obviates the underlying contract right of the property owners, through the Homeowners' Association, to enforce the restrictive covenants against operation of a home day care in Benjamin Crossing. The restrictive covenant exists independent of the ordinance and may be enforced by the Association pursuant to the terms of the Declaration. Thus, the trial court erred when it concluded that Section 36-7-4-1108 prohibits the Association from enforcing the restrictive covenant banning the operation of businesses in residences in Benjamin Crossing.
NFP criminal opinions today (2):
Vacancy on Supreme Court 2012 - The Supreme Court Nominating Commission
Updating an ILB entry from July 26, 2010, how has the membership of the Judicial Nominating Commission changed since the last time the Commission met to nominate candidates to the Governor in 2010? The list below shows the changes:
The July 26, 2010 ILB entry also has photos of the commissioners reviewing applications and questions candidates.
Membership. To recap, the Commission is chaired by the Chief Justice. Three "non-attorney citizen" members are appointed by the governor for three-year terms. (See IC 33-27-2-1) These terms are staggered and each of the appointees represents a different judicial district. Here are the current appointees:
Three attorney members are elected by the attorneys of the state, per IC 33-27-2-2 and 3. Here are the current attorney members:
Christine H. Keck, First District, Evansville, Term expires: 12/31/10Molly Kitchell, First District, Zionsville, Term expires: 12/31/13
Mike Gavin, Third District, Warsaw, Term expires: 12/31/11Jean Northenor, Third District, Warsaw, Term expires: 12/31/14
- Fred McCashland, Second District, Indianapolis, Term expires: 12/31/12
John C. Trimble, Esq.; Second District, Indianapolis, Term expires: 12/31/10William E Winningham, Jr. Esq.; Second District, Indianapolis, Term expires: 12/31/13
John O. Feighner, Esq.; Third District, Fort Wayne, Term expires: 12/31/11John D. Ulmer, Esq.; Third District, Goshen, Term expires: 12/31/14
- James O. McDonald, Esq.; First District, Terre Haute, Term expires: 12/31/12
Neither the citizen nor attorney commissioner is eligible for successive reappointment or reelection.
And perhaps most interesting, the entry has a list of many of the questions asked during the 2010 interviews by the various commissioners.
Finally, for an exhaustive look at the attorney membership of the Judicial Nominating Commission through the years, pulling together much material, see this ILB entry from Sept. 28, 2010. [BTW, there was no "Part II"]
Environment - "Judges already citing Wal-Mart ruling in environmental cases"
Lawrence Hurley, E&E reporter, has the story. A sample:
The case has been seized upon by corporate defendants in a wide range of class-action cases, including those involving environmental claims. Although the Wal-Mart case was in federal court, it is being mentioned both in federal and state court rulings.
The 3rd U.S. Circuit Court of Appeals, the Louisiana Supreme Court and a state court in Michigan are among courts that have already cited the Wal-Mart decision in rulings against plaintiffs in environmental cases.
"The Wal-Mart decision will likely have a major impact in environmental cases because in those cases plaintiffs' lawyers often try to bundle together highly individualized claims that have nothing in common," said Theodore Boutrous, the Gibson, Dunn & Crutcher attorney who argued the case for Wal-Mart.
The Supreme Court has now explicitly rejected what he called the "trial by formula" approach that many plaintiffs' attorneys take, he added.
Scott Summy, a trial lawyer with Baron Budd in Dallas, said the ruling "will obviously be used by corporate America in an attempt to avoid class certification in many contexts, including environmental cases."
Vacancy on Supreme Court 2012 - "15 applicants for Indiana Supreme Court seat will go before panel this week"
The Indianapolis Star today has a story by Bill Booher going over information about the upcoming interviews for the Indiana Supreme Court tomorrow and Thursday. Nothing new here ...
Follow all the ILB coverage at Vacancy on Supreme Court 2012.