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Tuesday, February 21, 2012

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In In Re: Indiana Newspapers, Inc. d/b/a The Indianapolis Star, Jeffrey M. Miller & Cynthia S. Miller v. Junior Achievement of Central Indiana, Inc.; Jennifer Burk; et al. , a 33-page opinion, Judge Vaidik writes:

In keeping up with the proliferation of the internet and social media, news organizations allow readers to both read and comment on their stories online. While this practice facilitates discourse between readers and interaction with their online news products, it also opens the door to potentially objectionable material, as readers are allowed to post comments anonymously, hiding behind a pseudonym. This case addresses whether a non-party news organization can be compelled to disclose to a plaintiff who has filed a defamation lawsuit the identity of one such anonymous commenter. In order to analyze this issue of first impression in our state, we consider Indiana’s Shield Law, which provides an absolute privilege to the news media not to disclose the source of any information obtained in the course of employment, the First Amendment, which has a celebrated history of vigorously protecting anonymous speech, and the Indiana Constitution, which more jealously protects freedom of speech guarantees than the United States Constitution.

Under our Shield Law, we hold that an anonymous person who comments on an already-published online story and whose comment was not used by the news organization in carrying out its newsgathering and reporting function cannot be considered “the source of any information procured or obtained in the course of the person’s employment or representation of a newspaper” according to Indiana Code section 34-46-4-2. Under the United States Constitution, to strike a balance between protecting anonymous speech and preventing defamatory speech, we adopt a modified version of the Dendrite test, requiring the plaintiff to produce prima facie evidence of every element of his defamation claim that does not depend on the commenter’s identity before the news organization is compelled to disclose that identity. With this test being called the most speech-protective standard that has been articulated and neither party advocating a different test, we adopt the modified version of the Dendrite test under the Indiana Constitution as well.

In Paul K. Ogden v. Stephen Robertson, et al., a 19-page opinion, a state employment case, Judge Riley concludes:
Based on the foregoing, we conclude that (1) Ogden’s memorandum was not protected speech under the Indiana Constitution; (2) Ogden was not entitled to due process protections under State personnel policy and EO 05-14; and (3) the trial court did not have subject matter jurisdiction over Ogden’s claim that he was wrongfully terminated from his employment. Affirmed.
In Herbert Yanez v. State of Indiana, a 9-page opinion, Sr. Judge Barteau writes:
Yanez contends that his rights under both the Fourth Amendment to the United States Constitution and article I, section 11 of the Indiana Constitution were violated when Special Agent Rodriguez stopped him and questioned him at the flea market. Essentially, Yanez asserts that the trial court erred by admitting evidence of the marijuana at trial because it was obtained as a result of the unconstitutional investigatory stop and therefore should have been excluded. Because it is dispositive in this case, we need only address the issue on state constitutional grounds. * * *

Here, there was absolutely no evidence of a concern or suspicion that a violation of law had occurred. * * *

The State did not carry its burden under Article I, Section 11 of the Indiana Constitution to establish the reasonableness of its actions. We therefore reverse Yanez’s conviction and remand for further proceedings consistent with this opinion. Reversed and remanded.

RILEY, J., concurs.
BARNES, J., concurring in result with separate opinion.

In State of Indiana v. Christopher Vickers , a 12-page opinion, Judge Riley writes:
Appellant-Respondent, State of Indiana (State), appeals the post-conviction court’s grant of post-conviction relief to Appellee-Petitioner, Christopher Vickers (Vickers). We reverse. * * *

The State argues that, contrary to the trial court’s decision, the record demonstrates that Vickers knowingly and voluntarily waived his right to counsel prior to or at his guilty plea hearing. * * *

Absent a clear requirement that all waivers of counsel be supported by an audio recording, we are unable to conclude that Vickers met his burden of proof to establish that he did not validly waived his right to counsel or that he asserted his right to self-representation. Accordingly, the State has shown that the post-conviction court committed clear error by granting Vickers post-conviction relief. * * *

Based on the foregoing, we find that the trial court erred in granting post-conviction relief to Vickers. We reverse the judgment of the post-conviction court and direct that the conviction be reinstated.

NFP civil opinions today (3):

Term. of Parent-Child Rel. of K.C. and K.M., Jr.; J.C. (Mother), B.D.T. (Father of K.C.) and K.M., Sr. (Father of K.M., Jr.) v. Indiana Dept. of Child Services (NFP)

Dixie Diana Schulz and Joseph Schulz v. The Kroger Co., Kroger Limited Partnership I, Seven-Up American Bottling Co., The American Bottling Co., Dr. Pepper/Seven-Up Inc., et al. (NFP)

Fayazz Chowdhry v. Estate of Mustansar L. Chaudhry (NFP)

NFP criminal opinions today (6):

Charles Duncan v. State of Indiana (NFP)

John Q. Lloyd v. State of Indiana (NFP)

Michael Lee Larry v. State of Indiana (NFP)

Tony V. Hawkins v. State of Indiana (NFP)

Willie Joseph v. State of Indiana (NFP)

Jay Wallace v. State of Indiana (NFP)

Trina Stover Thorstenson v. State of Indiana (NFP)

Posted by Marcia Oddi on February 21, 2012 12:56 PM
Posted to Ind. App.Ct. Decisions