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Sunday, February 12, 2012

Ind. Courts - "Courting controversy: Judges to have a say in range of policy matters"

A very long and essential editorial today by Tracy Warner of the Fort Wayne Journal Gazette surveys the important Indiana legal/policy issues before Indiana's state and federal courts:

Courts have always played a major role in painting political landscapes, but the importance of the judiciary in determining public policy – and thereby influencing politics – seems particularly intense now.

The Indiana Supreme Court recently intervened in no less than three cases, determining they are so important that the public is best served by the state's top court bypassing the regular appeals process to expedite a final decision. In coming weeks, the justices will decide:

  • Whether the way the Indiana House leadership docked the pay of Democratic state representatives meets legal muster.

  • Whether Democrat Vop Osili or a Republican appointed by Gov. Mitch Daniels will replace Charlie White as secretary of state.

  • Whether Daniels is compelled to testify in the lawsuit between the state and IBM over the canceled contract to privatize some elements of the welfare department.
In addition, a decision on the constitutionality of Indiana's new school voucher plan is winding its way through the courts, and an Allen County case regarding selling unused school buildings could end up at the high court as well.

If that's not enough, Indiana is playing important roles in federal lawsuits regarding President Obama's health care plan and public financing for Planned Parenthood programs.

Though the judiciary is an equal branch of government, some Americans accuse judges of overstepping their bounds when striking down laws the legislative branch enacted and the executive approved. The public largely accepts the powers of the executive branch (presidents and mayors) as well as the legislative (Congress, state legislatures and city councils). But when the third equal branch makes rulings some people oppose, the complaint is often heard that judges are "legislating from the bench."

Here are some of the key cases pending before the courts.


The issue: Whether Indiana's constitution permits the state's expansive school voucher system.

What's at stake:
The future of the voucher program. Though it's possible the courts could issue a ruling requiring changes to the current law, it's more likely that the final ruling will be either up or down, permitting or disallowing taxpayers to finance tuition at private schools.

A Marion County judge has upheld the voucher program as constitutional, and his ruling has a good chance of standing. Voucher opponents have appealed to the state Court of Appeals, and the case could well go to the state Supreme Court.

Charlie White

The issue: Whether the Indiana Recount Commission erred in ruling that White was a legally qualified candidate to appear on the 2010 ballot despite residency questions.

What's at stake: Which party gets control of the secretary of state's office, which has implications for later elections and on ballot placement for all elected offices. If the court upholds the Recount Commission decision, then White was a legally elected candidate who had to step down following his felony conviction, meaning Daniels appoints a Republican to replace him. If the court decides the Recount Commission was wrong, then White should not have been on the 2010 ballot, and the runner-up – Democrat Vop Osili – is awarded the office.

A Marion County judge ruled the commission was wrong and ordered it to install Osili as secretary of state. But that decision is on hold, and the state Supreme Court will hold a hearing on the case Feb. 29. A decision is likely in March.

Legislative fines
The issue: Whether the Indiana House Republican leadership can withhold fines from the paychecks of Democratic state representatives without first getting a court order.

What's at stake: A ruling against the Republicans would make it harder to issue fines, which is the main weapon to discourage Democrats from walking out and depriving the House of a quorum. But there are other issues: In addition to the fines, Republicans withheld the per diem pay lawmakers receive, and the smaller paychecks could affect lawmakers' pensions.

A Marion County court ruled that the Republicans improperly collected the fines and ordered the state to stop deducting the fines from lawmakers' paychecks. The Indiana Supreme Court decided last week to step in and take over the case. Until it reaches a final decision, the court told the state not to return money already deducted but not to make additional deductions.

Local school
The issue: Whether Fort Wayne Community Schools legally decided to sell the unused Pleasant Center School building to the Fort Wayne-Allen County Airport Authority or should sell it to a charter school for $1. Separate state laws appear to support each argument.

What's at stake: The case may cause the General Assembly to amend the law to make clear which requirement is the priority. The decision could well determine whether local school districts have options or must sell unused buildings to charter schools, which in some cases could be a boon for the charters.

Status: Dueling lawsuits have been filed in Allen Superior Court, and if the losing side appeals, the cases could well be in the Indiana court system for a few years.

Planned Parenthood [federal court]
The issue: Whether the General Assembly was legally justified in cutting off funding to Planned Parenthood or whether only the Medicaid program can make that decision.

What's at stake: This case has significant national implications.

If the General Assembly's action is upheld, other states could well take the same action, and Planned Parenthood will lose millions of dollars in federal money directed toward health care screenings and tests. Planned Parenthood is already prohibited from using any of the money for abortions.

Status: Both sides presented their arguments at the 7th Circuit U.S. Court of Appeals last September. While the court likely will rule soon, the losing party is likely to appeal to the U.S. Supreme Court.

Health care [federal court]
The issue:

What's at stake: The individual mandate is a crucial part of making the health care act work financially, and if it is ultimately struck down, the entire health care reform law would be gutted.

Status: Indiana joined 25 other states last fall in asking the Supreme Court to accept the case quickly, and the court agreed, scheduling an unprecedented three-day hearing for March 26-28. Attorneys with the Indiana attorney general's office are directly involved because they had already exhaustively researched the issue before Congress approved the law.

ILB: And one more case to add to the list is State of Indiana v. IBM, being argued tomorrow before the Supreme Court and involving questions of executive authority and separation of powers.

Posted by Marcia Oddi on Sunday, February 12, 2012
Posted to Indiana Courts

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

Check out the sixth weekly installment of the Legislative Update for the 2012 legislative session, from The Indiana Judicial Center. The "summaries of bills of interest to the judiciary heard this week in committee" is now of bills in the second house - these have some likelihood of passing, as only a few more weeks remain of the 2012 session.

Posted by Marcia Oddi on Sunday, February 12, 2012
Posted to Indiana Courts

Courts - Access to juvenile records and juvenile courts - does confidentiality or transparency work best?

Kentucky has an ongoing court battle which the ILB has covered sporadically on public access to records in fatal child abuse, neglect cases.

Garrett Therolf and John Hoeffel of the LA Times reported Feb. 7th on access, not to the juvenile records, but to the juvenile courts themselves. The story is headlined "Media gain access to L.A. County children's courts: Some judges and lawyers embrace the change; others object as reporters observe proceedings formerly cloaked in strict secrecy." Some quotes:

Children's court is an insular judicial world that has been criticized by parents for too often trampling their rights and by children's advocates for inadequately protecting young people at risk from potentially harmful living situations.

Children's Court Presiding Judge Michael Nash last week ordered those courtrooms to be open to the press, except in cases when a judge finds that it would be harmful to the child involved. Nash argues that openness will bring accountability to the process and that his order implements a state law allowing people with a "legitimate interest" to attend court proceedings.

Social workers at the Los Angeles County Department of Children and Family Services, elected officials and others have argued that the order overreaches and intrudes on the privacy of children who have already suffered mistreatment.

Pressing the issue Tuesday, the Children's Law Center, which represents most children in the system, asked the state appeals court to immediately overturn Nash's initiative.

The lawsuit claims Nash's directive conflicts with state law and violates the rights of children to confidential proceedings.

"The court has put the needs and interests of the public and the media ahead of the victims of child abuse and neglect," Leslie Heimov, the law center's executive director, said at a downtown news conference. "A judicial system that fails to respect the privacy and dignity of the children it claims to serve has lost sight of its mission."

Heimov said in the county's fast-moving juvenile courts, lawyers are dealing with eight to 10 clients a day and cannot be expected to notice reporters and always be prepared to argue why they should be excluded. A separate court-appointed law firm that represents parents in the county's child welfare system also is expected to appeal Nash's open-access order.

Posted by Marcia Oddi on Sunday, February 12, 2012
Posted to Courts in general

Ind. Gov't. - Indianapolis Star and South Bend Tribune investigate child abuse reporting and its followup

Another child death, this one powerfully chronicled today in the Indianapolis Star by Tim Evans, in a story headed "Numerous reports preceded Devin Parsons’ death." As I read the story, I recalled a number of other, similar stories focusing on children's deaths in other parts of the state.

An interactive graphic accompanying today's story links to those and other cases. The intro:

In the last five years, at least 23 Hoosier children with ties to the Indiana Department of Child Services have died despite efforts to protect them. In some cases, the children or their families were involved in open cases with the department. In others, the children or families had been involved in recently closed cases. And in still others, the children or their families had been the subject of recent reports of abuse or neglect.
I quickly located the cases of Christian Choate of Gary (some ILB entries)and Kalab Lay of Evansville (some ILB entries).

In a long investigative report today, headed "Could deaths of Indiana children have been prevented? Investigation raises questions about whether Department of Child Services could have done more to protect kids," Evans writes:

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.

Despite hiring nearly 800 new field workers, setting caseload limits and expanding training, it is not clear that children involved with DCS are any safer now than they were before the overhaul.

Last Sunday Virginia Black and Mary Kate Malone of the South Bend Tribune had a long story on another victim, Tramelle Sturgis. (ILB entry here) that parallels today's Star report. The Tribune team continues its investigation in today's paper with another long story, this one headed "Child abuse reports now funneled through Indy." The story looks at the "screen-out" rate of the new centralized system:
In 2010, DCS centralized its child abuse hot line to a single call center in Indianapolis. Rather than county departments fielding their own calls, as they had for years, all callers are now routed to Indianapolis, where an intake specialist decides whether the allegation merits an investigation.

The centralization, which was gradually rolled out in 2010, making 2011 the first full year of all calls going to Indianapolis, has resulted in a dramatic increase in the number of calls “screened out” statewide. * * *

The call center is staffed 24/7 with 62 intake specialists, who ask callers for details about the child, parents, their home and family life. They also ask about medical, criminal and CPS history, whether other children might be at risk, and pages of other questions to determine whether the child is in serious danger.

Calls that are deemed to merit an investigation are forwarded to the appropriate local office. The rest are “screened out.”

[ILB: This is apparently where your complaints end up now if you report child abuse from anywhere in the state. Recall the earlier ILB Penn State entries from Nov. 11 and Nov. 12, 2011.]

Before the centralized call center, counties varied widely in their screen-out rates, [DCS Director James Payne] says, to the detriment of children who needed help. One county might have investigated 80 percent of its calls, while another investigated close to zero, he said.

Also, a local call center might have become so familiar with false reports from a particular caller that they dismissed the allegation even when it was legitimate.

A centralized call center, Payne says, eliminates that risk by streamlining the intake process with “independent” intake specialists.

“Hoosier children ought to be treated the same, rather than the wide discrepancy we saw in the past and without the bias that may have occurred in the past,” Payne says. “It ought to be assessed individually.”

But what Payne sees as an improvement, others describe as a concern.

Cathy Graham, executive director of IARCCA, An Association of Children & Family Services, says the higher screen-out rate is a statewide issue.

IARCCA, based in Indianapolis, is a nonprofit organization that represents 115 agencies around Indiana that provide services for children.

“They say that’s consistent with other states, and that may be true,” Graham says of the screen-out rate. But she’s hearing from agencies all over the state worried that some concerns are being overlooked.

In more than 100,000 calls a year to the hot line — DCS recently reported 146,000 calls in 2011 — she notes that certainly some of those are not appropriate for follow-up.

“But when a concerned citizen or school or doctor’s office calls and they get screened out,” Graham says, “that’s a concern for IARCCA’s member agencies.”

There is much more to this story.

Posted by Marcia Oddi on Sunday, February 12, 2012
Posted to Indiana Government

Ind. Law - "Habitual offender law complex, unfair, many believe"

Sophia Voravong of the Lafayette Journal Courier has a lengthy story today (there is a p. 2 and a p. 3 that are easy, to miss the way the paper is laid out) examining Indiana's habitual offender law in operation. A sideby explains the law:

Habitual offender

Can be applied to someone with two prior, unrelated felony convictions.

Defendants can receive one to three times the advisory sentence added onto their underlying crime if found guilty, with a cap of 30 years.

Under Indiana law, it must be served consecutively to the underlying conviction. Following is a breakdown of the additional time a defendant can receive.

Murder: Advisory sentence, 55 years; habitual sentence, 30 years

Class A felony (attempted murder, fatal neglect, dealing cocaine, child molesting): Advisory sentence, 30 years; habitual sentence, 30 years

Class B felony (burglary, aggravated battery, robbery, fatal operating while intoxicated): Advisory sentence, 10 years; habitual sentence, 10 to 30 years

Class C felony (reckless homicide, battery resulting in serious bodily injury, forgery, welfare fraud): Advisory sentence, four years; habitual sentence, four to 12 years.

Class D felony (theft, child seduction, criminal recklessness with a deadly weapon): Advisory sentence, 1 1/2 years; habitual sentence, 1 1/2 to 4 1/2 years.

Habitual substance offender

Applies to someone with two prior, unrelated convictions for possessing, using, abusing or manufacturing drugs or alcohol. Defendants can have three to eight years tacked onto their underlying crime.

Some quotes from the story itself:
Philip McCollum wasn't convicted of murdering his spouse, burning down an office building or holding up a string of convenience stores. But the Lafayette man's 110-year prison sentence, handed down 23 years ago, might imply otherwise.

Rather, his lengthy sentence is because McCollum sold cocaine to an acquaintance-turned-police-informant, and he had prior felony convictions that made him a habitual offender.

"I remember when they sentenced him that day. I told my sister, they may as well have just killed him," McCollum's wife, Kitty McCollum, said during a recent interview. Legislators "need to look at nonviolent versus violent. You got murderers getting 60, 65 years.

"And look at Phil." * * *

Prosecutors have discretion in deciding whether to charge someone with being a habitual offender.

[Tippecanoe County Prosecutor Pat] Harrington said his office typically looks at the underlying crime, the types of prior convictions and how long ago they occurred.

But, Harrington noted, how Indiana defines a habitual offender is convoluted and complex.

Nearly all felonies can count toward it, whether violent or non-violent and whether a prior conviction for shoplifting or child molesting. There is no time limit either, so long as the defendant was convicted as an adult.

That's complicated by how drug offenses can be applied, said felony intake Deputy Prosecutor Tim Kern, whose main duty is reviewing police reports in major cases in Tippecanoe County to decide whether criminal charges will be filed.

For instance, if someone is charged with dealing cocaine, prosecutors can only file for habitual offender if the person has previously been convicted before of that exact crime or dealing another controlled substance.

In other words, "Theoretically, you can have armed robbery as a prior. You can have murder as a prior. But if dealing cocaine is the new offense, there's no habitual," Kern said.

Kern said Indiana Supreme Court justices and Indiana Court of Appeals judges have even noted in their rulings that Indiana's habitual offender statute is confusing.

Posted by Marcia Oddi on Sunday, February 12, 2012
Posted to Indiana Law

Ind. Courts - "State justices to weigh IBM arguments"

Tomorrow morning at 9:00 AM:

9:00 AM - State of Indiana v. International Business Machines Corporation (49S00-1201-PL-15) - In this action arising from the State's cancelation of a contract with IBM under which IBM was to improve and modernize Indiana's welfare system, the Marion Superior Court issued an order granting IBM's motion to compel the Governor to testify at a deposition. The State filed an emergency motion to accept the interlocutory appeal and a motion under Appellate Rule 56(A) for immediate transfer to the Supreme Court. The Supreme Court granted both motions and has assumed jurisdiction over the appeal.
Here is a list of earlier ILB entries re IBM.

Two major Indiana Sunday papers have excellent, original stories today on the case.

Angela Mapes Turner writes in the Fort Wayne Journal Gazette:

The intricacies of Indiana’s split with IBM gets another airing Monday, when the highest court in the state will gather on the third floor of the Indiana Statehouse to hear attorneys’ oral arguments on the value the governor’s testimony.

The debate already has cost Hoosier taxpayers at least $8 million, according to a contract with law firm Barnes & Thornburg, which was hired to represent the state’s social-services agency.

IBM attorneys have argued Gov. Mitch Daniels was an architect of the deal and asked for his deposition, and in December, the Marion Superior Court agreed.

An initial court ruling shielded the governor based on an old state law prohibiting the governor and other elected officials from subpoena. IBM attorneys pushed back after the governor wrote about the IBM contract and his firing of the company in his 2011 book.

In December, Judge David Dreyer ruled the “unprecedented investment of public resources” in the case made it illogical to exclude Daniels’ participation.

IBM attorneys have entered into evidence thousands of pages of emails created by the administration, including Daniels, regarding the contract, but the contents of those emails have not been made public.

At issue are two lawsuits, filed the same day in May 2010. IBM sued the state for $53 million in contractual fees and equipment, while the state sued IBM for more than $400 million it paid the company.

About a quarter of the contract’s original $1.16 billion contract with IBM had been paid to the technology company when Indiana canceled the contract in 2009.

Late last month, Marion Superior Court issued a summary judgment ruling on several issues in the dispute. The court ruled many of the matters at issue should be resolved at trial, including whether IBM should receive $43 million in deferred fees and more than $9 million for equipment the state kept after the contract was canceled.

IBM, in a statement, said the state’s refusal of its contractual obligations endangered Indiana’s business environment and would be a deterrent to businesses considering moving or expanding operations to Indiana. IBM Corp. has some existing contracts with state agencies, but none that approaches the scale of the FSSA program, according to state records.

Eric Bradner's story in the Evansville Courier & Press is headed "State Supreme Court to decide whether governor must give deposition." Some quotes:
The Indiana Supreme Court is set to decide whether IBM Corp. will get to grill Gov. Mitch Daniels as a part of the legal battle over the state's botched effort to modernize its welfare delivery system.

It will be the final word on whether the Republican governor who was the primary pitchman for the 10-year, $1.37 billion deal — until he cited its shortcomings, changed course and fired the lead contractor, IBM, in October 2009.

Now, IBM is suing the state, and the Indiana Family and Social Services Administration is suing back. The dueling lawsuits mean courts will ultimately decide whether it's the state or the contractor that owes the other side money.

At the center of the dispute is whether Daniels should have to give a deposition. IBM argues it's essential; the state says allowing the governor to be called for such a meeting would open the door to distractions of all sorts in other cases for the state's top executive.

Last month, Marion County Superior Court Judge David J. Dreyer ordered Daniels to submit to a deposition within 60 days. That raised the constitutional question of whether the chief executive can be forced to do so, so the Indiana Supreme Court stepped in and snatched the case.

The court is set to hear arguments from both sides — IBM and the state — on Monday. While Indiana Attorney General Greg Zoeller's office has filed a briefing on the constitutional issue at hand, it's Barnes and Thornburg attorney Peter Rusthoven who the Daniels administration has hired to do the state's legal work on the modernization contract and the IBM lawsuits. * * *

In May 2010, the Daniels administration filed a lawsuit seeking to get back the $437 million it had already paid IBM. On the same day, IBM filed a lawsuit saying the state owed it $53 million in contractual fees and equipment expenses.

Since Daniels was a key advocate of the need to embark on the modernization project and often argued that the IBM method was better than what the state had before, IBM has sought to depose him.

That's what Dreyer ruled on last month.

In his ruling, Dreyer said that the "effects and consequences" of allowing Daniels to dodge a deposition are "simply untenable."

He said his order was "a narrow historical interpretation that applies only to the narrow unprecedented circumstances presented by this specific case," and not one that ought to apply otherwise to requests to depose the governor.

His ruling summarized the case for a Daniels deposition.

"On one hand, IBM is required to defend against claims seeking at least $437 million including allegations of deficient performance and intentional misrepresentation. The record is besieged with actions, statements and apparent decisions of the governor that are clearly discoverable and potentially admissible at trial," Dreyer wrote.

"Many of the governor's actions and statements are arguably inconsistent with the state's factual allegations in this lawsuit — some are not," he said.

He went on to write that if Daniels is not ordered to give a deposition, IBM would be subject to evidence and statements from him that it could not cross-examine.

"It is illogical, first of all, to find the Statute is intended to allow a governor to choose not to offer evidence to recover taxpayer money and defend the State in a matter of such high public importance," Dreyer wrote.

"The unprecedented investment of public resources under the contract makes it illogical to find the Statute would not allow full discovery of all the information regarding how it worked, or didn't work. To hold otherwise is contrary to common sense and a disservice to a seemingly diligent governor working to safeguard the investment."

Meanwhile, Indiana Solicitor General Thomas Fisher will represent Zoeller's office in Monday's Supreme Court hearing. It is not defending the state in the lawsuit, but is rather arguing the constitutional point that a governor should not be ordered to submit to a deposition.

Posted by Marcia Oddi on Sunday, February 12, 2012
Posted to Ind. Trial Ct. Decisions | Upcoming Oral Arguments

Not law - "Girls get no respect at Maxim party"

A letter in this morning's Indianapolis Star from a mother, who is also an Indiana University Robert H. McKinney School of Law professor:

On Feb. 4, Maxim magazine hosted a big party at the State Fairgrounds. As one ticket purveyor barked: The invitation-only event brings out all of the glamour with huge numbers of celebrities, athletes and models. All over Indiana, young girls were invited They had to send photos of themselves and a decision would be made as to whether they could attend for free. One might wonder at the wisdom of participating in such an event. Nevertheless, hundreds of Hoosier girls responded along with my daughter. They were advised by e-mail that they were eligible for entry along with the disclaimer that Maxim reserved the right to refuse entry to anyone.

My daughter and her friend, in good fun and good faith, arrived beautifully dressed. They were directed to one of the barns used for displaying animals. The girls were herded into lines and inspected by some staff with power to decide who would enter the party. One of the staff told one girl to open her coat. When she did, he sneered, said something under his breath and walked off. It was clear she would never get into the party.

There were hundreds of girls in a line. More girls arrived. Some came in a school bus from out of town in their best clothes, hair and make-up. The line went out the door into the cold rainy night. Many girls did not have coats and huddled together to keep warm. The staff invited a few girls to go into the party. My daughter was among them. I am proud that she said “no thanks” and left. What a way to treat Hoosier girls who wanted to have fun and be part of the Super Bowl. They were treated like animals.

Eleanor D. Kinney Clark

I had exactly the same reactions as Prof. McKinney. Much has not changed for young women since the 50s and 60s, the era of TV's Mad Men.

Posted by Marcia Oddi on Sunday, February 12, 2012
Posted to General Law Related