« January 2012 | Main | March 2012 »

Wednesday, February 29, 2012

Ind. Courts - Look for a quick ruling on the Charlie White civil appeal

Although the Supreme Court during the oral argument this morning allowed the Attorney General until tomorrow to submit a supplemental brief on constitutional questions, the ILB understands that additional briefing is no longer being requested.

See recap of this morning here, and links to briefs in Charlie White v. Indiana Democratic Party here.

Posted by Marcia Oddi on Wednesday, February 29, 2012
Posted to Ind. Trial Ct. Decisions

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

In U.S. v. Flores-Lopex (SD Ind., Lawrence), a 15-page opinion, Circuit Judge Posner writes:

This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant. Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a “computer” or not) can be searched without a warrant—for a modern cell phone is a computer. * * *

At the scene of the drug sale and arrests, an officer searched each cell phone for its telephone number, which the government later used to subpoena three months of each cell phone’s call history from the telephone company. At trial the government sought to introduce the call history into evidence. The history included the defendant’s overheard phone conversation with Santana- Cabrera along with many other calls between the defendant and his coconspirators. After a brief hearing the judge overruled the defendant’s objection, which however was limited to the call history of the cell phone that he admitted was his, since he denied owning or having used the other cell phones.

The defendant argues that the search of his cell phone was unreasonable because not conducted pursuant to a warrant. The phone number itself was not incriminating evidence, but it enabled the government to obtain such evidence from the phone company, and that evidence, the defendant argues, was the fruit of an illegal search and was therefore inadmissible. * * *

[A]ssume that justification is required for police who have no warrant to look inside a cell phone even if all they’re looking for and all they find is the phone number. The government emphasizes the danger of “remote wiping.” Instant wiping, called “local wiping,” as by pressing a button on the cell phone that wipes its contents and at the same time sends an emergency alert to a person previously specified. * * *

Looking in a cell phone for just the cell phone’s phone number does not exceed what decisions like Robinson and Concepcion allow. * * *

But these [broader issues] are questions for another day, since the police did not search the contents of the defendant’s cell phone, but were content to obtain the cell phone’s phone number.

Posted by Marcia Oddi on Wednesday, February 29, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on "Tax forgiveness and equality"

Updating this morning's ILB entry, the SCOTUS heard the argument in the case of Armour v. Indianapolis this morning.

Here is the story filed by Maureen Groppe of the IndyStar/Gannett Washignton bureau, headed "Supreme Court appears split on Indy sewer tax case." Some quotes:

WASHINGTON -- The U.S. Supreme Court appeared split Wednesday over whether Indianapolis treated some homeowners fairly when it forgave the outstanding debt their neighbors owed for sewer hookups. * * *

Justice Stephen Breyer said the city didn't want to continue administering the old program and didn't want to determine whether everyone who had paid under the old system should get a refund. The city had to draw the line somewhere and what's wrong with that? Breyer asked the homeowners' attorney.

The city's attorney was equally grilled by the more conservative justices. They particularly questioned the city's argument that it would have been an administrative nightmare to continue to collect on the old system until all debts were paid.

Justice Antonin Scalia said he's not aware of a "nightmare exception" to the equal protection clause.

The homeowners argue that their constitutional right to be treated equally under the law was violated when they paid the full $9,278 for a sewer hookup while others in the same neighborhood, who chose to pay in installments, ended up paying only $309. The homeowners who paid in full want to be refunded the difference.

If the Supreme Court sides with the homeowners, the city asked for the option of recharging the homeowners whose debt was forgiven, rather than issuing refunds.

Justice Ruth Bader Ginsburg agreed that the city should have that option. But Scalia said they shouldn't because no one would bring an equal protection challenge if it meant that they would only end up harming someone else, instead of benefiting themselves.

Lyle Denniston's long, just-filed argument recap in SCOTUSblog is headed "That old slippery slope — again." Here is an interesting snippet from near the end:
Between Roberts, Alito and Scalia, the taxpayers seeking the refunds found an increasingly sympathetic audience. Along the way, Justice Anthony M. Kennedy, though perhaps with somewhat less enthusiasm, also seemed skeptical of Indianapolis’s jusification for forgiving taxes for some while refusing refunds to others.

As the argument moved on, the signs mounted that Clement’s more complex argument was having difficulty, for at least some of the Justices, in countering the simplicity of his opponent’s challenge. Indeed, it was not a good sign for Indianapolis that members of the Court started examining how a remedy should be fashioned in the event that the city lost: whether to wipe out the forgiveness for the taxpayers who still had outstanding sewer debts, or to find some way to compensate the taxpayers who had previously paid in full.

Posted by Marcia Oddi on Wednesday, February 29, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "State Keeps Death Files of Abused Children Secret"

That is a headline from today's NYT about the New York system, not about Indiana or Kentucky (for Ky., see near the end of this Feb. 27th ILB entry). The long NYT story, by Jo Craven McGinty, tells of Elisa's Law:

... a measure loosening the secrecy regulations in child-abuse investigations. Among other reforms, the law required a public accounting of the events leading up to the death of any child in New York State who had been reported as abused or neglected.

But for the last five years, the state’s Office of Children and Family Services has been working quietly and persistently to limit access to those case reports, which in most instances are the only record of the circumstances leading up to the deaths.

In 2007, the office tried to have the law changed. When that failed, it made its own rule. According to a policy enacted by the office in September 2008, it will not release the fatality reports mandated by Elisa’s Law if there are siblings or other children in the home and officials decide that revealing the family’s abuse and investigative history is not in their “best interests.”

“This is like back to the future,” said Jeffrey Binder, who was press secretary for former State Senator Roy M. Goodman, Republican of Manhattan, when he sponsored Elisa’s Law. “We were trying very hard to remove the veil of secrecy.”

Also today, Kelli Stopczynski's report for WSBT, South Bend,includes:
According to Indiana state law, Child Services is forced to destroy unsubstantiated reports after 120 days. * * *

“I think it’s outrageous,” said St. Joseph County Probate Judge Peter Nemeth. “The confidentiality again mandated by the state legislature in these cases is a form of secrecy which protects the Department of Child Services.”

Indiana Senator John Broden is sponsoring legislation to lengthen the amount of time DCS would have to keep both substantiated and unsubstantiated reports to 15 years.

“We'll never know whether the presence of those records would have prevented any deaths or what may have happened, but certainly just having the records is very critical,” Broden said.

Posted by Marcia Oddi on Wednesday, February 29, 2012
Posted to Indiana Government

Ind. Courts - Recap of Charlie White oral argument [Updated]

Eric Berman of WIBC has this recap of this morning's oral argument.

[Updated at 1:00 PM]
Here is Carrie Ritchie's story in the Indianapolis Star. The story includes a great photo of the argument in process, by Danese Kenon / The Star. A quote from the story:

"This panel was incredibly active today," said attorney Karen Celestino-Horseman, who's representing the Democrats. "There were questions there that we didn't anticipate, questions there that we did anticipate, and it was very nice to be involved in such an intellectual discussion of the law, quite honestly."

Attorney David Brooks, who's representing White, said he was encouraged by the Supreme Court's questions.

"I think they're on the right track," he said. "And I think the quality of those questions bodes well for us."

Stephen Creason, an attorney for the Indiana Attorney General's office, which represented the Recount Commission, declined to comment after the hearing, but his office issued a statement praising the court for hearing the appeal.

Posted by Marcia Oddi on Wednesday, February 29, 2012
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 5 today (and 18 NFP)

For publication opinions today (5):

In Joseph A. Davis v. Herbert Simon and Bui Simon , a 26-page opinion, the question is whether the Simons have jurisdiction to sue Mr. Davis (of California) in Indiana. "Joseph A. Davis appeals the trial court's denial of his Motion to Dismiss for Lack of Personal Jurisdiction, or in the Alternative, on Grounds of Forum Non Conveniens, in favor of Herbert and Bui Simon." The trial court denied Mr. Davis' motion to dismiss. The COA panel here reverses, 2-1, Judge Brown writing for the majority.

In Monte Hanna and Kim Hanna v. Indiana Farmers Mutual Insurance Company, a 12-page opinion, Judge Baker writes:

A sixteen-year-old passenger in a friend's vehicle was killed in a two-car collision during a drag race. The parents of the other drivers compensated the plaintiffs, who were the parents of the deceased child, in accordance with the liability limits under their own insurance policies. The decedent's parents then sought to recover additional funds in their individual capacities under the Uninsured Motorist provisions (UIM) of their own automobile policy that was issued by appellee-defendant Indiana Farmers Mutual Insurance Company (Indiana Farmers).

The Child Wrongful Death Act (CWDA), our Supreme Court's interpretation of the CWDA, and the Hannas' insurance policy do not entitle the parents to bring more than a single joint claim for their son's death. And because the parents have already received amounts from the other drivers' insurers that exceeded the maximum to which they would have been entitled under the UIM provisions of the Indiana Farmers policy, the trial court properly granted summary judgment in Indiana Farmers's favor and concluded that it was not obligated to pay under the UIM provisions.

Appellants-plaintiffs Monte and Kim Hanna (collectively, the Hannas), appeal the trial court's grant of summary judgment in favor of Indiana Farmers, on their claim for amounts that it should have paid them under the UIM provisions of their policy. The Hannas contend that Indiana Farmers was obligated to pay the full amount of the UIM policy limits and that the claim for their son's wrongful death should not be restricted to one joint claim for damages.

Concluding that the trial court properly granted Indiana Farmers's motion for summary judgment, we affirm.

In Engineered Steel Concepts, Inc., ESC Group Limited, and Tom Anderson v. General Drivers, Warehousemen, and Helpers Union Local 142, International Brotherhood of Teamsters, and Steven Parks, a 15-page opinion, Judge Najam concludes:
Anderson and the Company's state law claims are preempted by their actual conflict, on these facts, with the NLRB's exercise of jurisdiction against them under the Act. Thus, the trial court properly determined that it had been divested of its subject matter jurisdiction over the state law claims, and we affirm the trial court's judgment.
State of Indiana ex rel. Family and Social Services Administration v. Estate of Phillip Roy

In Kevin B. Perry v. State of Indiana , a 10-page opinion, Judge Baker writes:

In the instant case, the father of a teenage girl's boyfriend invited her and two of her friends over to his house while his son was away. After the girls had arrived, he served them alcoholic beverages and then got into bed where his son's girlfriend was sleeping and, without her consent, inserted his fingers into her vagina and rubbed his penis on her buttocks. The father was charged and convicted of class D felony sexual battery. While the father's actions are reprehensible, they do not qualify for sexual battery as defined by Indiana statute. His actions, however, do constitute class B misdemeanor battery.

Appellant-defendant Kevin B. Perry appeals his conviction for Sexual Battery, a class D felony, arguing that the evidence was insufficient. More particularly, Perry contends that the evidence failed to show that he compelled the victim to submit to touching by force or the imminent threat of force. Concluding that the State failed to show that Perry used force or the imminent threat of force, we reverse his conviction for class D felony sexual battery and remand with instructions that the trial court enter judgment of conviction for class B misdemeanor battery and sentence him to 180 days of incarceration with 90 days suspended.

NFP civil opinions today (5):

Mark Yoder and Barbara Yoder v. Capital One Bank, (USA), N.A. (NFP)

Thomas Pine, Individually and as Admin. for the Estate of Helen Pine, Deceased v. Stirling Clinic, Inc., Albert C. Lee, M.D., and Indiana Neurology Specialty Care (NFP)

Felix R. St. Pierre v. Jeannette St. Pierre (NFP)

Douglas J. Smith v. Gail Lynnette Smith (NFP)

Term. of Parent-Child Rel. of J.C.; J.P. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (13):

Charles A. Jones v. State of Indiana (NFP)

Daniel Robert Mola v. State of Indiana (NFP)

Anthony Taylor v. State of Indiana (NFP)

D.P.J. v. State of Indiana (NFP)

Calvin J. Spaulding v. State of Indiana (NFP)

Edwin D. Calligan v. State of Indiana (NFP)

Charles Neal v. State of Indiana (NFP)

Logan B. Lake v. State of Indiana (NFP)

Antonio Rush v. State of Indiana (NFP)

Adam Schafer v. State of Indiana (NFP)

Stacey L. Certain v. State of Indiana (NFP)

Harley J. Wise, II v. State of Indiana (NFP)

Nick Bigsby v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 29, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Tax forgiveness and equality"

As noted in this post last evening, the SCOTUS is hearing the case of Armour v. Indianapolis this morning.

Lyle Denniston of SCOTUSblog has written a very lengthy and valuable "argument preview" of the case. Here are just the part of the intro and then, the conclusion:

Arguing for the challenging taxpayers will be Mark T. Stancil of the Washington office of Robbins, Russell, Englert, Orseck, Untereiner & Sauber. Arguing for the city of Indianapolis, local officials, and agencies will be Paul D. Clement of the Washington law firm of Bancroft PLLC. * * *

Sometimes, simplicity is a better strategy for winning a Supreme Court case, if it is argued well and makes the Justices suspicious of the nuance, qualification, and rationalization that the other side has offered. The 31 Indianapolis homeowners may have done both: it is no exaggeration that they simply paid much more than the installment plan taxpayers did — 80 percent of the sewer tax collections — and it is plain that the city’s several justifications for the forgiveness do not do as much work as they need to do to explain away the refusal to provide refunds.

The class-based difference in treatment may well be the city’s weakest argument, since there is no evidence that the city did any actual calculations about who could afford to pay up front and who needed to stretch out payments. From all that appears, that was mere supposition, and yet it is that argument that should have provided the most sympathy for treating homeowners in the same subdivision differently. Instead of calculating ability to pay, the city pigeon-holed household income within the unexplained individual choice of pay schedule. Such choices might well have been made at random, rather than as calculations of how much cushion there was in a given family’s budget.

There is nothing about this case that would prevent a city from shifting its tax policy or revising its plans for financing civic improvements. No one is claiming that Indianapolis was stuck with one way to pay for hooking up homes with city sewers, and no one is arguing that a city cannot create legitimate classifications between taxpayers who are convincingly placed in different circumstances. The homeowners’ lawyers have made those points clearly.

There is a good deal of energy spent in this case over how important the Court’s prior precedents are to the outcome here — that is, whether Allegheny Pittsburgh is still good law, or whether Nordlinger speaks more directly to tax classifications. This dispute in Indianapolis has quite a different focus: the Court may well have to start fresh to analyze whether tax forgiveness, or any other form of “amnesty,” to use Indianapolis’s provocative analogy, is something that has to satisfy equal protection principles.

Posted by Marcia Oddi on Wednesday, February 29, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "What life is like for a 14-year-old killer tried as an adult in Indiana"

Supplementing the ILB entry from Sunday, Feb. 26 is this long Feb. 28th story by Rebecca S. Green of the Fort Wayne Journal Gazette headlined "Teen’s appeal of adult trial set to proceed." Some quotes:

Paul Henry Gingerich, 14, was charged as an adult in the 2010 death of a Kosciusko County man.

Attorneys for the boy filed the appeal last fall, asking the higher court to overturn an April 2010 decision by Kosciusko Superior Court Judge Duane Huffer to waive Gingerich into adult court to face a charge of murder. * * *

The decision on whether to waive Gingerich into adult court came just days after he obtained a lawyer. Huffer denied a request by Gingerich’s attorney at the time to delay the hearing to allow mental health experts to evaluate Gingerich to see whether he was competent to assist in his own defense.

Gingerich’s appellate attorney, Monica Foster, argues that her client was not competent at the time because of his young age.

Foster argues that Huffer’s decision to waive Gingerich into adult court was invalid because the court did not properly evaluate Gingerich’s developmental state, ignored requirements for handling juvenile cases and violated his right to due process by pushing the hearing through so quickly, according to court documents.

Huffer abused his discretion in waiving Gingerich to adult court, Foster argued.

And while Gingerich eventually pleaded guilty to a charge of aiding in a murder and waived his right to appeal the case, Foster argues that because he never should have been waived to adult court in the first place, the guilty plea and waiver are void and unconscionable.

“The adult court never acquired (jurisdiction) because of the due process violations occurring in the juvenile court as a result of the entire waiver process,” Foster argued. “ … Paul was not competent at the time of his waiver hearing or when he entered the guilty plea. A guilty plea tendered by an incompetent defendant is not knowing, voluntary, or intelligent.”

The Indiana Attorney General’s Office asked the court to dismiss Gingerich’s appeal, saying he should be held to the terms of the plea agreement and his waiver of his right to appeal.

But earlier this month, the court denied the state’s request, allowing the appeal to continue.

Posted by Marcia Oddi on Wednesday, February 29, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Charlie White oral argument

Watch the oral argument in Charlie White v. Indiana Democratic Party, streamed live from the Supreme Court courtroom at 9:00 AM, here.

Access the briefs here.

[More] AP story by Charles Wilson.

Posted by Marcia Oddi on Wednesday, February 29, 2012
Posted to Indiana Courts

Tuesday, February 28, 2012

Ind. Courts - Much going on tomorrow (Wednesday), including public hearing at Pike Twp. Small Claims Court

As the ILB noted on Feb. 24th:

There are TWO BIG oral arguments next Wednesday, Feb. 29th. Not only the Charlie White civil case, being argued before our Indiana Supreme Court (see this ILB entry for summary and documents), but Armour v. Indianapolis, being argued before the SCOTUS. (See this ILB entry for links to all the documents in that appeal.)
And in addition, tomorrow evening is the time of the second public hearing of the task force created by the Supreme Court to review the practices the procedures used in the Marion County Small Claims Courts:
Pike Twp - 2/29/12 (Wednesday) at 6pm
Small Claims Court, 5665 Lafayette Road, Suite B, Indianapolis
Here is some of what was said in the news release re creating the task force (emphasis added by ILB):
The Indiana Supreme Court has created a task force to review the practices the procedures used in the Marion County Small Claims Courts. Critical reports in the national press suggest litigants in those courts do not always have the same access to justice as litigants in other Indiana courts. As part of the review, the Court has directed public hearings be held. Ultimately the Supreme Court will determine whether any changes are needed in the Marion County Small Claims Courts. * * *

The task force is made-up of Indiana Court of Appeals Judge John Baker and Senior Judge Betty Barteau. Both have extensive experience at every level of the Indiana court system, including small claims cases. They will gather information by meeting with the judges and staff and from public hearings. The hearings will be scheduled for late February and early March in Perry and Pike Townships. The goal is to get feedback from small claims litigants and attorneys.

The first hearing was last Wednesday in Perry Twp. The ILB has heard that at least half the audience at that hearing was made up of attorneys. Apparently no reporters attended.

The second hearing should be of particular interest because of its setting, Pike Twp., which was the focus of one of the "critical reports," a lengthy subscription-only story that appeared last July 18, 2011 in the Wall Street Journal, reported by Jessica Silver-Greenberg, that began:

MARION COUNTY, Ind.—For U.S. consumers with too many bills and not enough money, the end of the line is often a small-claims court like the one here in Pike Township.

Judge A. Douglas Stephens, who presides over all the township's small-claims cases, calls himself a "Renaissance redneck" and wears a small gun strapped to his ankle while on the bench. He says he has little patience for the "feeble protests" of people who try to dodge their financial obligations.

Shortly after his 2003 election, he recalls, two insurance executives in "bad suits" sat silently in the back of his courtroom to see if he would rule in favor of their company in a dispute involving damage from a car accident. He says he did, based on the facts.

These days, his calendar is packed with cases from many insurance companies—sometimes more than 200 a day—against residents who allegedly owe money for insurance premiums or car accidents. The defendants live not only in Pike Township but in townships all over Marion County. Judge Stephens says that American Family Mutual Insurance Co., based in Madison, Wis., files all its cases against county residents in his township because "they had a problem with another judge who was consistently too tough," whom he declines to name. Judge Stephens says he is "totally impartial." American Family declined to comment.

As companies and debt collectors try to collect on overdue bills that piled up during the financial crisis, the recession and their aftermath, they are borrowing a tactic from plaintiffs' lawyers: They shop around for the best places to bring their claims. Debt collectors aren't so much worried about whether a court will rule that the debtor owes the money—most cases are fairly clear-cut on that point—but about how aggressively collectors can pursue a debtor's assets.

Posted by Marcia Oddi on Tuesday, February 28, 2012
Posted to Indiana Courts

Ind. Gov't. - "Indiana's $2 billion unemployment mess"

WISH TV's "investigation into alleged mismanagement of the state's unemployment system," reported by Deanna Dewberry: here is the story from Monday, Feb. 27th and tonight, Feb. 28th.

Posted by Marcia Oddi on Tuesday, February 28, 2012
Posted to Indiana Government

Ind. Courts - Judge Simon sets hearing on RTW TRO for next Monday, March 5 at 1 pm in federal court in Hammond

See the Reuters story here.

Posted by Marcia Oddi on Tuesday, February 28, 2012
Posted to Indiana Courts

Law - A new law blog, on old law stuff

For law geeks. noncuratlex.com, which describes itself as: "Another Law Blog, Dedicated to Old Law Stuff, Mostly."

Yesterday an entry was headed "Is Your Fellow Police Officer a Republican, Or a Democrat?: The Indianapolis Police Manual (1895)."

Some wise instructions on p. 115 of the Manual, re emergency treatment:

4. In fainting, cut the patient's corset stays, if a woman ...

8. In cases of apparent death from drowning, do not roll the patuent on a barrel nor hold him up by the hells, nor force tobacco smoke upon him.

A list of felonies and misdemeanors begins on p. 107. Ordinances listed include "9. Bathing in Central Canal in daytime," and "10. Keeping cock pit."

A section on "Courts" begins on p. 19 of the 1895 Manual.

Posted by Marcia Oddi on Tuesday, February 28, 2012
Posted to General Law Related

Ind. Courts - State-IBM trial over canceled welfare contract began yesterday

"State, IBM blame each other as trial involving Indiana's canceled welfare contract begins" is the headline to Carrie Ritchie's Indianapolis Star story today that begins:

Attorneys for the state and IBM offered two very different explanations Monday for what led to cancellation of a $1.37 billion welfare modernization contract.

During opening arguments in a Marion Superior Court trial, an attorney for IBM said the state couldn't afford to continue the 10-year contract, so it canceled in 2009 after only three years. The state then sued the company for breach of contract, IBM's attorney said, so it wouldn't have to pay about $100 million in termination costs.

An attorney for the state said the automated system IBM built was so fraught with problems that the state fired the company and then sued it for failing to deliver the services it promised. The state wanted IBM to return the $437 million it had already paid the company, but a judge capped the damages the state can seek at $125 million.

Both sides pointed to internal emails and documents to try to prove their arguments in competing lawsuits. Hundreds of millions of dollars are at stake in the civil trial, which could last up to six weeks.

From Niki Kelly of the Fort Wayne Journal Gazette, a story that begins with this take:
Days before Gov. Mitch Daniels canceled a 10-year welfare modernization contract with IBM Corp. in October 2009, state officials were negotiating with IBM to take over a new hybrid program.

When IBM sought additional money to lead Plan B, the state instead terminated IBM’s contract “for cause,” alleging a breach of contract.

“What a mess,” exclaimed Anne Murphy, secretary of the Indiana Family and Social Services Administration, in a September 2009 email about the talks regarding new dollars for IBM.

The revelation that state officials were still willing to work with the lead partner of an already-troubled effort came Monday as the state of Indiana and IBM faced off in court Monday in a case over hundreds of millions in taxpayer dollars. The trial – before Marion Superior Court Judge David Dreyer – is expected to last six weeks as the sides argue over whether IBM breached a $1.37 billion contract with the state.

Posted by Marcia Oddi on Tuesday, February 28, 2012
Posted to Indiana Courts

Courts - "Finding Room For Fashion In The Courtroom"

NPR's introduction to the 7-minute story:

Tricia Elam once worked in a small Washington, DC law firm — where she learned, to her dismay, that proper attire meant plain suits and flat shoes. But she discovered a way to combine her passions for justice and fashion. She shares her vision with host Michel Martin. Elam is profiled in this week's Washington Post Magazine.
See the long story, titled "Jurist prudence: Can women be fashionable dressers and lawyers?" from the Feb. 23rd Washington Post Lifestyle Magazine here.

See also the Feb. 26th entry, "The Co-existence of Fashion and Law," from the blog Mahoganie.

Posted by Marcia Oddi on Tuesday, February 28, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Jacob Key, Ted J. Brown and Sally A. Brown v. Dewayne Hamilton, a 33-page 2-1 opinion including a 12-page dissent, Judge Vaidik writes:

Jacob Key, Ted J. Brown, and Sally A. Brown (collectively “the Defendants”) appeal the jury’s verdict and trial court’s judgment of $990,000 against them. They argue that the trial court erred in denying their motion for summary judgment, motion for judgment on the evidence, and motion for a directed verdict. They also argue that the trial court erred in instructing the jury on assumption of duty using the Restatement (Second) of Torts. Finding that a signaling driver may owe a duty of care to a third party motorist as a matter of law when his actions result in the reasonable reliance by the signaled driver that traffic is clear, we hold that the trial court did not err in denying the motions. We also hold that although the jury instruction for assumption of duty was given in error, it was harmless because it properly encapsulates Indiana’s negligence law. We therefore affirm. * * *

BAKER, J., concurs.
MATHIAS, J., dissents with separate opinion. [that begins, at p. 21] I respectfully dissent.

At issue in this case is whether a motorist who halts his own lane of traffic and signals to another driver to proceed across his lane can be liable to a third party who collides with the signaled driver in an adjacent lane beyond. This is a question of first impression in Indiana. While the majority and I analyze these facts under the rubric set forth in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), the majority concludes that, under the circumstances of this case, Key assumed a duty to Hamilton by signaling Owens to proceed. I disagree.

ILB: The dissent has 3 footnotes referencing recently retired Justice Boehm's criticism of the three-part Webb test. See notes on p. 23, 29 and 31.

NFP civil opinions today (3):

Gary Hazelwood v. Melissa Hazelwood n/k/a Melissa Butler (NFP)

James E. Lonaker v. Cambridge Investment, Inc., Dolgencorp Inc., d/b/a Dollar General Stores, Dean Foods Company, d/b/a Louis Trauth Dairy, et al. (NFP)

Miranda Herbert v. Steven Herbert (NFP)

NFP criminal opinions today (7):

J.F. v. State of Indiana (NFP)

Xavier Morton v. State of Indiana (NFP)

Antwan Rush v. State of Indiana (NFP)

Rafael Del Rio v. State of Indiana (NFP)

Jessica Deaton v. State of Indiana (NFP)

Dwayne K. Allen v. State of Indiana (NFP)

Michael D. Thorning v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 28, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "The Indiana Supreme Court confirmed Monday that the state Department of Toxicology provided incorrect test results for use in criminal cases" [Updated]

Responding to attorney reader inquiries re today's IndyStar story, the ILB is trying to track down the "report issued by the Supreme Court about the [Court of Appeals] task force's work."

[Updated at 9:49 AM] Here is the 2-page Statement of the Supreme Court.

Posted by Marcia Oddi on Tuesday, February 28, 2012
Posted to Indiana Government

Ind. Law - No local government could pass a smoking ban more restrictive than the State’s?

IndyPolitics has read through all the proposed 2nd reading amendments filed in the Senate on HB 1149, the smoking ban bill. Among those of note, this one that would provide that no local government could pass a smoking ban more restrictive than the State’s. Look for full Senate debate on the bill today.

[More] Chris Sikich has this story in today's Indianapolis Star.

Posted by Marcia Oddi on Tuesday, February 28, 2012
Posted to Indiana Law

Ind. Gov't. - "The Indiana Supreme Court confirmed Monday that the state Department of Toxicology provided incorrect test results for use in criminal cases"

So begins a tremendous story this morning on the front page of the Indianapolis Star, reported by Tim Evans and Mark Alesia. Some quotes from the lengthy story:

The Indiana Supreme Court confirmed Monday that the state Department of Toxicology provided incorrect test results for use in criminal cases, setting a course for what almost certainly will be legal challenges.

The full extent of testing problems at the lab remains unknown, but a task force headed by two judges from the Indiana Court of Appeals found at least five cases where retested samples "did not reveal any of the substances originally reported."

A report issued by the Supreme Court about the task force's work said about 500 other samples were either inadequate for retesting or showed some presence of drugs or "a successor substance." But the report didn't address one critical issue: whether test results from those samples would meet the scientific and legal standards to stand up in court. * * *

The Supreme Court task force was established last fall, Chief Justice Randall T. Shepard told The Star, "to get a solid idea of what the court system might be confronting and devise a plan to handle that."

Headed by Court of Appeals judges Michael Barnes and Nancy Vaidik, the five-member panel reviewed results from the retesting of about 500 samples originally tested by the state lab from 2007 to 2009 and reported to police and prosecutors as positive. But it didn't specifically delve into the overall quality or reliability of the lab's work.

That is understandable. It would not be proper, legal experts said, for the Supreme Court to issue any opinions on the situation because the court might have to hear cases related to the testing problem.

As the story continues:
The one agency that does have more information on the test results and the quality of the lab's work, the Department of Toxicology, isn't talking.

Department attorney Teri Kendrick last month denied a public-records request from The Star seeking the test results. The Star is appealing that decision with the state's Public Access Counselor.

ILB: See this earlier ILB entry from Feb. 13th headed: "State won't release toxicology lab results: Only prosecutors told what retesting of samples revealed"

More from the very long, must-read story:

Legal experts applauded the Supreme Court for taking the initiative to look into problems at the lab, which tests blood and urine samples for police departments across the state. The lab's test results often play a critical role in criminal cases. A positive test alone is often enough to prompt a guilty plea.

"I think the Supreme Court was concerned, given the seriousness of the issues, that no one was driving this forward to give the public confidence that something was being done and with a sense of urgency," former Marion County Prosecutor Scott Newman said.

Newman, who spent nearly a year as a consultant working to correct shortcomings at the lab, oversaw an audit that found extensive problems with the lab's processes and documentation. That work was abruptly stopped when oversight of the lab was transferred last summer from the Indiana University School of Medicine to the governor's office. The problems have been downplayed by a three-member panel appointed by the governor to oversee the lab.

Newman said he is still concerned about characterizations that problems auditors found were merely those of "protocol" and didn't affect physical testing.

"You really can't separate protocols from results," Newman said. "They're bound up together."

Re moving forward:
The most likely approach to challenging testing results is through a legal process called post-conviction relief. It is a way to appeal convictions based on new evidence.

The court's statement said the process "should provide a vehicle for individuals to seek relief from a guilty plea conviction based on a possible State Department of Toxicology Lab test error."

Legal experts said that removes an obstacle that often prevents defendants from even receiving a hearing.

Prominent Indianapolis defense attorney John Tompkins said it is significant that the court stepped in and addressed the post-conviction relief issue.

"There might be trial courts that say, 'That's not an issue,' " Tompkins said. "This makes it clear that what the Supreme Court saw justifies a post-conviction hearing. This says it's legitimate. That's nice to see."

The court also removed another potential obstacle by saying attorneys from the State Public Defender's Office "will represent, at no charge, people who are still imprisoned, if those individuals cannot afford to pay for representation by an attorney."

Posted by Marcia Oddi on Tuesday, February 28, 2012
Posted to Indiana Government

Monday, February 27, 2012

Ind. Decisions - Transfer list for week ending February 21, 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, February 24, 2012. It is one page (and one case) long.

One transfer was granted last week, with opinion: Antwon Abbott v. State of Indiana - Here is the ILB summary of the Court's Feb. 22nd opinion.

Posted by Marcia Oddi on Monday, February 27, 2012
Posted to Indiana Transfer Lists

Law - "FBI Turns Off Thousands of GPS Devices After Supreme Court Ruling"

Julia Angwin at the WSJ blog, Digits, writes:

The Supreme Court’s recent ruling overturning the warrantless use of GPS tracking devices has caused a “sea change” inside the U.S. Justice Department, according to FBI General Counsel Andrew Weissmann.

Mr. Weissmann, speaking at a University of San Francisco conference called “Big Brother in the 21st Century” on Friday, said that the court ruling prompted the FBI to turn off about 3,000 GPS tracking devices that were in use.

These devices were often stuck underneath cars to track the movements of the car owners. In U.S. v. Jones, the Supreme Court ruled that using a device to track a car owner without a search warrant violated the law. * * *

Mr. Weissmann said that the FBI is now working to develop new guidelines for the use of GPS devices. He said the agency is also working on guidelines to cover the broader implications of the court decision beyond GPS devices.

For instance, he said, agency is now “wrestling” with the legality of whether agents can lift up the lid of a trash can without committing trespass.

Posted by Marcia Oddi on Monday, February 27, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Augustus Mendenhall v. State of Indiana, a 32-page opinion, Sr. Judge Sharpnack writes:

Mendenhall contends that: (1) the trial court abused its discretion by denying his motion for mistrial following an alleged Doyle violation; (2) the trial court erred by allowing the State to present witnesses in rebuttal of his case-in-chief after the testimony of the court-appointed medical witnesses; (3) Mendenhall was unfairly prejudiced when the trial court permitted the State to present DeLaney’s rebuttal testimony; (4) the evidence is insufficient to sustain Mendenhall’s convictions for Class A felony attempted murder, Class A felony robbery resulting in serious bodily injury, and Class B felony aggravated battery; and (5) Mendenhall’s convictions for Class A felony attempted murder and Class B felony criminal confinement and his convictions for Class A felony robbery resulting in serious bodily injury and Class B felony aggravated battery violate Indiana’s prohibition against double jeopardy. * * *

[p. 31] Mendenhall argues that the injury to DeLaney’s right eye was used to support the robbery enhancement and aggravated battery. The State concedes that these convictions may violate our prohibition against double jeopardy. That is, there is a reasonable possibility that the jury used evidence of DeLaney’s protracted loss or impairment of the function of his right eye to establish the robbery enhancement and aggravated battery. See Smith v. State, 881 N.E.2d 1040, 1048 (Ind. Ct. App. 2008) (“It is improper for the State to rely on evidence of the same injury to sustain a conviction for both class A felony robbery and class B felony aggravated battery.”). We conclude that the two convictions violate Indiana’s double jeopardy clause. When two convictions violate double jeopardy principles, we may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation. Richardson, 717 N.E.2d at 54. Reducing the robbery conviction to a Class B felony would still result in a double jeopardy violation in light of Mendenhall’s Class B felony criminal confinement conviction. Compare Ind. Code § 35-42-5-1 (enhancing robbery to a Class B felony if it “is committed while armed with a deadly weapon”), with Ind. Code § 35-42-3-3(b)(2)(A) (enhancing criminal confinement to a Class B felony if it “is committed while armed with a deadly weapon”), and Appellant’s App. p. 246 (charging information for Class B felony criminal confinement based on Mendenhall being armed with a deadly weapon). We therefore remand with instructions to reduce Mendenhall’s robbery conviction to a Class C felony.

For the reasons stated above, we remand with instructions to reduce Mendenhall’s robbery conviction to a Class C felony. The trial court is affirmed in all other respects.

In Arc Construction Management, LLC, and Alan Muncy v. John Zelenak and Cecilia Zelenak , a 10-page opinion, Sr. Judge Barteau concludes:
For the reasons stated above, we affirm the trial court’s order denying summary judgment on the Zelenaks’ claim for breach of the implied warranty of habitability and remand for proceedings consistent with this opinion.
NFP civil opinions today (0):

NFP criminal opinions today (5):

Timothy Jester v. State of Indiana (NFP)

N.L. v. State of Indiana (NFP)

David Fonseca v. State of Indiana (NFP)

Jennifer Howard v. State of Indiana (NFP)

Donald C. Newlin v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 27, 2012
Posted to Ind. App.Ct. Decisions

Environment - SCOTUS denies cert to Asian carp case

Here is the Feb. 27, 2012 order list. It is on p. 6: 11-541 MICHIGAN, ET AL. V. ARMY CORPS OF ENGINEERS, ET AL.

Posted by Marcia Oddi on Monday, February 27, 2012
Posted to Environment

Ind. Gov't. - "Indiana Supreme Court Confronts Key Question in Disputed Elections: Now What?" [Updated]

Another take on the subject of Wednesday's oral argument in the Charlie White case, from Doug Chapin of the Univ. of Minnesota in this blog entry. (Thanks to Rick Hasen of Election Law Blog for the link.) Here is how the entry concludes:

Basically, the Indiana Supreme Court is facing the same kind of choice that any court faces when asked to resolve a disputed, yet usually long-past, election. The problem is that all three of the major choices have significant drawbacks:
  1. If the Court chooses to elevate Osili, it chooses a candidate who was a distant runner-up despite alerting voters to potential issues with White's candidacy;
  2. If the Court allows the Governor to fill the vacancy, it is essentially allowing the most significant result of the alleged fraud to stand; and
  3. If the Court throws up its hands and orders a revote, it will not restore the status quo ante that existed in November 2010 and could cost Indiana taxpayers significant funds depending on the timing of the election.
It's a difficult choice that I am confident that the members of the Court wish they didn't have to make.

If nothing else, the mess in Indiana - and the difficulties in resolving a disputed election result - should be in the back of the mind of anyone who cares about election administration. No one really emerges victorious when a court is asked to pick a winner; while we can't always guard against bad actors, all of us who care about the nation's voting system should do everything we can to ensure that voters, and not judges, decide the outcome of our electoral process.

[Updated at 11:45 am] A knowledgeable Indiana reader writes about the above:
I don’t think he understands that option #3 is not available to the Court.

Posted by Marcia Oddi on Monday, February 27, 2012
Posted to Indiana Government

Ind. Gov't. - "Court should make Osili secretary of state"

So writes the NWI Times today in an editorial. Some quotes:

Now that White has been removed from office for a crime that disqualified him from running for office, who will replace him?

The Indiana Democratic Party wants that person to be Democrat Vop Osili, who came in second in the 2010 secretary of state race. Libertarian Mike Wherry came in third. The Republican stance is that since a Republican was elected, a Republican should replace him.

Marion County Judge Louis Rosenberg weighed in on this Jan. 4, ruling that White was ineligible to run for office and directing the Indiana Recount Commission to name Osili the winner. Because the case was appealed, that ruling wasn't enforced immediately.

The Indiana Supreme Court is scheduled to hear this case this week. [ILB -Wed. at 9 am]

It should be obvious that White's misdeeds disqualified him as a candidate, meaning the candidate who came in second, Democrat Vop Osili, should be sworn in as secretary of state. The judge's ruling that overturned the Recount Commission ruling should be upheld.

Indiana Gov. Mitch Daniels appointed Jerry Bonnet, White's No. 2 in the department, to be the interim secretary of state. If the Supreme Court clears the way for Osili to be sworn in, Osili would be wise to look to Bonnet for help in figuring out what has gone on in that office in the year since the wrong person was sworn in as secretary of state.

In this year of partisan strife in the Statehouse, White created yet another source of division. The Supreme Court must move swiftly as well as wisely to put this sordid chapter of Indiana politics in the past.

Posted by Marcia Oddi on Monday, February 27, 2012
Posted to Indiana Government

Ind. Gov't. - "The protection of Indiana children from abuse and neglect"

That is the topic of today's editorial in the Indianapolis Star, calling for:

... [creation of] an oversight committee for DCS, [formation of] a summer study committee and [scrutiny of] the high rate at which calls to the new DCS hotline are being screened out as unworthy of investigation. * * *

As documented by The Star's Tim Evans, six children died last year while under the DCS radar, including 12-year-old Devin Parsons of Greensburg, allegedly beaten to death in an abusive home that was subject to 19 reports to DCS. Two of those reports did not get through initial screenings at the call center, where 35 percent of calls have been screened out compared to 16 percent under the previous, decentralized, system.

Is DCS Director James Payne correct in defending the call center? Are he and key legislators correct in focusing on improvements in child welfare made since 2005, to the diminishment of concerns raised in 2012? As matters now stand, "yes" is presumed. But common sense says the holders of the purse strings should err in the opposite direction. Any and all presumption should benefit the innocent.

In the Fort Wayne Journal Gazette today, a lengthy editorial from Karen Francisco. It concludes:
Indiana House Democrats are pushing for an audit of DCS operations, including a study of the abuse and neglect hotline. They attempted to amend the proposals into existing legislation but were blocked in the GOP-controlled Family, Children and Human Affairs Committee.

“We believe that we should not leave this session before significant changes are made to improve this system and protect children,” said Rep. Gail Riecken, D-Evansville.

Early efforts by Gov. Mitch Daniels’ administration to improve long-standing problems in child protection looked promising, beginning with separating it from the cumbersome and bureaucratic Family and Social Services Administration. Somewhere along the way, however, an emphasis on saving money overtook the commitment to protecting children. It’s past time to reorder priorities.

Here is how the editorial begins:
The dirty little secret behind Indiana’s budget surplus is exactly how it came to be. Not the bounty of a booming economy but the result of nicks, cuts and downright slashing of programs critical to the safety of vulnerable Hoosiers and to the economic future of all its residents.

In education, mental health, environmental regulation, social services and more, millions of dollars have been struck from the budget and returned to the state’s coffers.

Nowhere have the cuts been as deep and as dangerous as in the Department of Child Services, where almost $104 million allocated by the Indiana General Assembly was returned unspent in the past fiscal year. The current biennial budget slashed an additional 15 percent from spending on child protection.

The results? Programs intended to prevent and treat child abuse and neglect eliminated. Fewer kids receiving services. And, tragically, some children dying.

Recent investigations by the Indianapolis Star and the South Bend Tribune focused on egregious cases of failed oversight. The Star found that DCS received an astonishing 19 reports of abuse and neglect before 12-year-old Devin Parsons was beaten to death last June and his mother and her boyfriend arrested on murder charges.

In South Bend, the Tribune examined the November death of Tramelle Sturgis. His father allegedly used duct tape to tie up the 10-year-old and beat him with a club and a belt. Tramelle and his two brothers also were burned with an iron and a hot screwdriver before Tramelle collapsed and died. Six months earlier, someone had reported to DCS that children in the house were being beaten regularly with 2-by-4s and that one of the children might have been bleeding internally.

In all, six children died last year after warnings about their care were raised to DCS. The agency charged with ensuring their safety determined the case didn’t merit an investigation, investigated and closed the case with no action, or was still investigating. In each case, the children were left at home.

These are only excerpts from the FWJG article.

Meanwhile, in Kentucky, according to a story today by Deborah Yetter in the Louisville Courier JournalFranklin Circuit Judge Phillip Shepherd continues to wrestle with the Kentucky Cabinet for Health and Family Services for the release two years worth of child abuse records within 90 days:

Shepherd has already ruled such records must be released — and Gov. Steve Beshear announced in November the state intended to cooperate, citing concern over several high-profile child abuse deaths, including that of Amy Dye, a 9-year-old girl fatally bludgeoned last year in her adoptive home.

“Transparency will be the new rule,” Beshear said at a Nov. 29 news conference.

But legal wrangling has continued over the cabinet’s insistence it has the right to delete information from the files beyond what Shepherd said the law allows.

The cabinet last month appealed the dispute to the state Court of Appeals.

The LCJ also had an editorial Feb. 23rd on opening family courts to reporters and the public.

Posted by Marcia Oddi on Monday, February 27, 2012
Posted to Indiana Government

Ind. Law - "Maze of election laws baffles candidates"

Indiana's ballot access laws are a trap for the unwary, as Lesley Stedman Weidenbener writes today in a column in the Louisville Courier Journal. This is an important and valuable story - some quotes:

This year, I’ve watched as presidential candidate Rick Santorum and gubernatorial hopeful Jim Wallace — both Republicans — have struggled to qualify for the primary. The Indiana Election Commission decided on Friday that Santorum is on the ballot and Wallace is off.

Meanwhile, other candidates I know who had good faith plans to run in the primary have also failed to make the ballot because they didn’t understand what to do.

In most cases, these are well-meaning folks who are not their parties’ first choice of candidates and therefore lack the professional guidance afforded to hand-picked contenders.

In a state and nation that prides its democracy, this can be a problem.

Don’t get me wrong. I’m not advocating for weak ballot access rules. I don’t think it serves voters to face a ballot filled with long lists of candidates that are running with no real intention of campaigning or serving.

There must be rules. There have to be deadlines. Candidates should have to provide information about themselves, their campaign committees and certainly their fundraising.

But whenever possible, these rules need to be easy to access, straightforward enough to understand and fairly simple to implement without hiring an expensive attorney or consultant. I’m just not sure that’s the case right now.

The story then digs into the details; you may want to clip it and file it.

Posted by Marcia Oddi on Monday, February 27, 2012
Posted to Indiana Law

Ind. Law - "Passage of smoking ban bill may not extinguish the fight: So far, no state ban has been overturned in court"

CNHI's Maureen Hayden looks at legal and financial issues relating to passage of smoking bans in this story today.

Posted by Marcia Oddi on Monday, February 27, 2012
Posted to Indiana Law

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

The first ILB entry on HB 1171 and quoted a Niki Kelly Fort Wayne Journal Gazette story. The ILB lead-in: "Back in the day, Senator Bob Garton would have disallowed these bills ..."

Next came a Feb. 1st ILB entry quoting a FWJG editorial: "Lawmakers should seriously consider whether they should put themselves in the position of settling disputes involving a very limited number of Hoosiers by passing statewide laws that affect everyone."

Today in the FWJG, a long opinion piece by Jane DeHaven, who owns Summit City Chevrolet, headed "Lawmakers’ meddling reeks of cronyism." It begins:

What do Bob Morris, Phil GiaQuinta and Tom Wyss have in common? No, they don’t all believe Girl Scouts of America conspiracy theories. What they share is that they have all lost track of why they were elected to the Indiana General Assembly. They all represent the Fort Wayne area and have collectively chosen to take sides in a dispute between my business, Summit City Chevrolet, and Kelley Chevrolet, whose majority owner is Keith Busse. In response to notification of Kelley’s proposed relocation, we filed a protest under I.C. 9-23-3-24, a specific law that governs such circumstances that has been in effect for 11 years. To “Be Prepared,” we incurred great expense for attorney fees and expert witnesses, all in an effort to meet the speedy schedule set forth by the court and required by the law.

Four weeks ago and to my complete surprise, I became aware of legislation, authored by these three Fort Wayne legislators, and I was told it was to be placed on the fast track at the Statehouse. Essentially, if passed, House Bill 1171 will terminate the pending lawsuit and declare Tom Kelley and Keith Busse as the winners of the dispute. The additional result is that the investment we have made in exercising our rights in court will be completely wasted.

I learned in Government 101 that the legislature makes laws and the courts rule on these laws. In court, both parties are given a chance to present their arguments and an impartial trial of fact will decide the outcome based on the merits of the case.

Posted by Marcia Oddi on Monday, February 27, 2012
Posted to Indiana Law

Ind. Courts - "State-IBM trial over canceled welfare contract begins today: Millions of dollars at stake in dueling lawsuits"

"Opening arguments will begin at 9 a.m. today in Marion Superior Court" reports Carrie Ritchie in this story in today's Indianapolis Star. The story begins:

Gov. Mitch Daniels will not have to testify in dueling lawsuits over the state's canceled welfare modernization contract with IBM, but his public comments about the venture will play a significant role in the trial, which begins today.

IBM plans to use statements in which Daniels praised the company and outlined his expectations for the project to show that IBM did what it was supposed to do.

"This case is all about the state running away from what the governor said publicly, what he said privately and what he did, his actions, for years," said IBM's attorney, Steve McCormick. "Governor Daniels has been the gift that's kept on giving in this case."

Peter Rusthoven, who is representing the state's Family and Social Services Administration in this case, said IBM is trying to draw attention away from its own mistakes.

"Our argument is pretty simple," Rusthoven said. "We hired them to do something. They didn't do it."

The trial is scheduled to last six weeks, and much of that time will be spent going over the meaning of the contract's language.

Here is a long list of earlier ILB entries relating to the IBM contract.

This ILB entry from Jan. 13, 2007, contained a link to the actual 180-page contract. Unfortunately, the contract appears to have been removed by FSSA.

Posted by Marcia Oddi on Monday, February 27, 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, didn't you check the ILB a lot last week? Then please make the move to supporting the ILB.

From Sunday, February 26, 2012:

From Saturday, February 25, 2012:

Posted by Marcia Oddi on Monday, February 27, 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 2/27/12):

Wednesday, February 29th

Next week's oral arguments before the Supreme Court (week of 3/5/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/27/12):

Monday, February 27th

Wednesday, February 29th

Friday, March 2nd

Next week's oral arguments before the Court of Appeals (week of 3/5/12):

Monday, March 5th

Friday, March 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, February 27, 2012
Posted to Upcoming Oral Arguments

Sunday, February 26, 2012

Ind. Courts - "What life is like for a 14-year-old killer tried as an adult in Indiana"

More than a year ago, Jan. 5, 2011, the ILB had this entry headed "12-Year-Old in Indiana Gets 25-Year Sentence," quoting national coverage.

Today, in a story in the Sunday Indianapolis Star that covers much of the front page and two full interior pages, Robert King reports on what has happened since. The subhead: "Should a 12-year-old be tried as an adult? Paul Henry Gingerich was after he helped kill a man two years ago. He faces 10 more years in prison -- unless an appeal convinces a court he should have been tried as a juvenile." A few quotes:

Birthdays in prison are typically low-key affairs. There's one party per month thrown for all the birthday boys, usually featuring cupcakes.

Presents -- by regulation, books mailed from booksellers -- show up on or around the day. In Paul's case, his mom had ordered him an inspirational book. His prison mentor gave him a Bible with multiple versions of the Scriptures, even Greek.

Family visits are confined to normal Thursday and Sunday visiting hours. His whole family -- mom, dad and two sisters -- came and helped him spend $20 worth of quarters in the visiting room vending machines for a birthday party featuring personal pepperoni pizzas, egg and sausage hot pockets and popcorn.

Yet the best present of all came from the Indiana Court of Appeals.

On Feb. 17 -- Paul's birthday -- the court announced it will consider granting the boy what amounts to a legal do-over on the 2010 proceedings that led to his particular sentence. [Case Number: 43 A 05 - 1101 - CR - 00027 GINGERICH, PAUL H. V. STATE OF INDIANA ]

The issue before the court isn't one of guilt, but whether it was appropriate for Kosciusko Circuit Judge Rex Reed to move Paul into adult court at such a young age and to give him an adult's sentence.

In Indiana, juveniles as young as 10 can be tried as adults. That's younger than in many states, but some states have no age limit. Last year, Morgan County Prosecutor Steve Sonnega could have moved to adult court the case of an 11-year-old boy who killed his 6-year-old brother. But he decided against it.

Paul was 12 years and 2 months old at the time of the killing. He was a sixth-grader at Wawasee Middle School. He had no prior criminal record. A psychologist who evaluated Paul said the boy lacked a basic understanding of the court proceedings and wasn't competent to stand trial as an adult.

Nonetheless, the judge didn't buy the defense's theory that Paul had been bullied into the crime by his older accomplice. He declared them both fit to stand trial as adults and found them equally culpable.

"Phil Danner is dead," the judge said at the time. "Phil Danner was, regardless of what we call this crime, murdered."

The decision was remarkable in light of the fact that, from 2000 to 2010, only 13 children in Indiana were sentenced as adults for murder or attempted murder. None was younger than 14.

More from the story:
The sentence prompted Dan Dailey, a blogger from Texas who follows juvenile justice issues, to launch a website called "Free Paul Henry Gingerich" and to set up a trust fund for his defense. He also asked for help from Indianapolis attorney Monica Foster, who has defended some of the state's most notorious killers. (See accompanying box.)

Foster agreed -- even setting aside her typical fee of $350 an hour to take up Paul's appeal.

"I would like to have him treated as the 12-year, 2-month-old person that he was, which is a kid," she said. "I don't think he was competent to stand trial. I don't think he was competent to plead guilty."

Specifically, she said, defense attorneys typically are allowed two to four months to build an argument for why their young client's case should remain in the juvenile courts. Paul's lawyers were given four days. Foster also said the psychologist's report should have carried more weight.

National juvenile justice organizations -- the Children's Law Center, the National Juvenile Defender Center and the Campaign for Youth Justice -- have filed briefs in support of her case.

At its core, though, Foster said 12 is too young to write off the life of a child who she said "doesn't have a criminal orientation."

"He's the most innocent kid I've ever seen in my entire life," she said. "He just really happened to be in a bad place at a bad time, and I really believe that's all this case is about."

ILB: The online version of today's story does not include the "accompanying box" about attorney Monica Foster. Here are a few quotes from the printed paper:
Indianapolis defense attorney Monica Foster has represented some of the state's most notorious killers at various stages of their movement through the criminal justice system -- from the trial level to the eleventh-hour death penalty appeals.
Attorney Foster was featured in the recent issue of Super Lawyers with a full page interview - ILB entry here, and is mentioned in a number of earlier ILB entries.

Notably, Ms. Foster was a candidate for the Indiana Supreme Court vacancy in 2010. She was one of 19 women who applied. None of them were selected.

Posted by Marcia Oddi on Sunday, February 26, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Puncturing gas bill was necessary"

Updating earlier ILB entries, today's Evansville Courier & Press has a column by David Coker on the current status of the "$2.6 billion synthetic gas conversion plant in nearby Rockport, Ind." A quote:

While the action of the Ways and Means committee may be a temporary reprieve, proponents of the Leucadia insanity may seek to insert the language again before the end of this session of the General Assembly.

Posted by Marcia Oddi on Sunday, February 26, 2012
Posted to Indiana Government

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

Check out the eighth 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.

Last week was the last week for bills to come out of committee in the second house. The plan announced by the leadership is for the General Assembly to adjourn on March 9th.

The summaries of the Feb. 24th discussions on SB 1 (Barnes self defense), SB 97 (public intoxication), SB 246 (lab technician testimony in criminal cases), HB 1204 (sex and violent offender registry) will be of particular interest to many.

Here is a related story on SB 1, from Tim Grimes of the Evansville Courier & Press, dated Feb. 22nd, and headed "Indiana House panel approves bill authorizing resistance to illegal entry by police."

Posted by Marcia Oddi on Sunday, February 26, 2012
Posted to Indiana Courts

Ind. Law - "Discipline for doctors bears harsh penalties: Substance abuse accounts for majority of state’s cases"

Dan Stockman has a very long story in the Sunday Fort Wayne Journal Gazette on the discipline of doctors in Indiana.

It starts with the Jan. 7th arrest discussed in this Jan. 15th entry, headed "'What are you guys doing? I’m a physician,' he reportedly told the officers." A snippet:

Some of the cases involving doctors are, indeed, disturbing. They include a Bluffton doctor who prescribed “five beers a day,” to a diabetic on probation and forbidden to have any alcohol after a prison sentence for a history of drunken driving, and a doctor facing federal charges of owning an illegal machine gun, an illegal silencer and trying to hire a hit man.

Other Indiana doctors have been disciplined for sexually rubbing themselves on patients, having sex with patients and placing a hidden video camera in the office restroom.

A sidebar has this useful information:
Check your doctor:

Look up the license for any state-licensed professional, from doctors to plumbers, at mylicense.in.gov/EVerification/Search.aspx

Those who have been disciplined will have an entry under “Previous Action,” those cases can be searched by clicking on “Litigation Documents” or by going to www.in.gov/ai/appfiles/pla-litigation/.

Although the professions that may be checked range from accountants to veterinarians, attorneys are not included. The Roll of Attorneys provides that information.

Posted by Marcia Oddi on Sunday, February 26, 2012
Posted to Indiana Law

Ind. Courts - "Is juvenile system too closed? Some suggest laws meant to protect kids result in too much secrecy."

Yet another story this Sunday in the South Bend Tribune focusing on the Indiana's current juvenile system. The one by Virginia Black, the earlier three this month were by Black and Mary Kate Malone.

This is a lengthy, very powerful report that must be read in full. This is lot of new information in the story on a variety of aspects of the problems with the system. The ILB can provide more information on one section, that reads in part:

In December, the Court of Appeals of Indiana ruled in favor of three Hancock County parents who had appealed a circuit court judge’s termination of their parental rights — while calling into question some DCS actions.

The mother had three children, one with an ex-husband and two with her present husband. The court documents say all three had various issues with instability when the DCS cases began in 2009, including drug use and incarceration.

The appeals court justices reversed the original decision, ruling that the parents had indeed been making progress on their issues and should be allowed more time to be reunited with their children.

But perhaps more notable were the justices’ written opinions of how DCS employees behaved as the case unfolded.

Footnotes throughout point to missing and contradictory facts as the ruling describes the case, in one example referring to “the disturbing possibility that DCS intentionally delayed” a response to a foster home licensing issue.

“We need not resolve today whether DCS technically complied with the law; however,” the court document states, “we wish to emphasize that DCS’s actions were not consistent with its purpose and that we do not condone what happened in this case.” * * *

In an interview last month with The Tribune, DCS’ Payne bristled at a question about whether case managers need more oversight.

“If you’re asking for perfect, I will admit we’re not perfect,” he said. “If you’re asking about the case in Hancock County, I can say we don’t always do the work that is expected. … I suspect there are people who think we’re doing a pretty good job. So why don’t you look those people up?”

Asked about the possibility of the DCS evaluation committee proposed by state Sen. Yoder, Payne referred to the recent creation of the ombudsman’s office, the agency’s frequent filing of reports and data, and the availability of child advocates to provide checks and balances.

“I also find it interesting that at a time when Indiana is considered to be one of the better agencies for child protective services in the country,” he said, “there’s this thought that we need oversight. … It seems to be motivated by something other than whether children are better, because the data is pretty clear. We have more children with fewer dollars and better results. That typically would not indicate you need more oversight.”

The COA opinion in the Hancock County case, filed Dec. 14, 2011, begins with this summary by Judge Crone:
B.G. (“Mother”) has three sons, C.D., H.G., and E.G. C.L.D. is C.D.'s father and Mother's ex-husband. H.H.G. is H.G. and E.G.'s father and Mother's husband. The children were declared children in need of services (“CHINS”) due to Mother's and C.L.D.'s incarceration and H.H.G.'s drug use. Ultimately, all three parents had their rights to the children terminated. The record reflects that the children have a bond with the parents and that the parents have all made progress during the pendency of this case. Although the case manager and court appointed special advocate (“CASA”) testified that the children need permanency, the Department of Child Services (“DCS”) has not identified any potential permanent home for the children, and termination does not appear to contribute anything to the children's sense of stability. Because the parents appear willing to continue cooperating with DCS and working toward reunification and because there is no indication that allowing the parents more time to do so will harm the children, we conclude that DCS failed to show that termination is in the children's best interest. Therefore, we reverse and remand for further proceedings.
See particularly footnote 16, that begins on p. 22, ftnote 19 on p. 30. Ftnote 21 on p. 38:
As a corollary to this argument, DCS asserts that it is under no affirmative obligation to disclose information about the children's placements, arguing that the parents should have conducted discovery and/or subpoenaed the foster parents to testify. Huntsman's last two reports filed before the termination hearing included documentation showing that E.N. and C.N. were considered the adoptive family. DCS left the parents, the court, and the children's CASA with the misleading impression that E.N. and C.N. were in the process of adopting the children, when in reality that placement was in jeopardy due to a licensing complaint. The record in this case also raises the disturbing possibility that DCS intentionally delayed its response to the first licensing complaint in order to leave this misleading impression intact. We note that DCS is legally required to disclose a wide array of information to the court and parties. See Ind. Code ch. 31-35-18 (predispositional reports); Ind. Code § 31-34-21-1 (progress reports must be filed every three months after a dispositional decree is entered and at any other time as ordered by the court); Ind. Code ch. 31-34-22 (requiring progress reports to be filed before certain hearings). These reports might be considered akin to mandatory discovery, and discovery responses must be supplemented when a party “knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.” Ind. Trial Rule 26(E)(2)(b). We need not resolve today whether DCS technically complied with the law; however, we wish to emphasize that DCS's actions were not consistent with its purpose and that we do not condone what happened in this case. See Ind. Code § 31-10-2-1 (policy and purposes of Title 31 include, inter alia, strengthening family life, removal of children from families only when in the child's best interest, and ensuring fair judicial procedures that protect rights of parents and children).

Posted by Marcia Oddi on Sunday, February 26, 2012
Posted to Indiana Courts

Vacancy on Supreme Court 2012 - Seigel is "easy pick for state's top court"

That is the headline to this great editorial in the Sunday Fort Wayne Journal Gazette:

The end-run around equal representation inevitably falls on a gratuitous discussion of abilities and best qualifications.

Hogwash.

The best man for the Indiana Supreme Court is a woman.

When politicians demand “qualifications,” they sometimes use the word to mean “disqualification.” Who has the better résumé? The best experience? When it comes to people recommended for a state supreme court, all the candidates are at the top of their game. Résumés and experience become matters of judgment, not matters of fact.

In 2012, the “best qualification,” assuming the recommending committee has done its job, and we see no reason to doubt it, is the fact of being a woman.

“I might have used (gender diversity) as a tiebreaker. But this was not a tie,” Gov. Mitch Daniels said when he appointed Justice Stephen David to the all-male court in 2010. “My task was to find the best person on the merits, and I’m sure I did. Now the state is going to benefit from that for years to come.”

It was a poor argument then; it’s an unacceptable argument today, now that the governor has to fill a vacancy created when Chief Justice Randall Shepard retires. Regardless of David’s skills, any benefits for the state are countered by a total lack of representation of 50.8 percent of its population. A third of the practicing members of the Indiana Bar Association are female – to suggest that a Supreme Court justice can’t be found among them is disingenuous.

The Indiana Judicial Nominating Commission forwarded the names of Jane Seigel, Mark Massa and Cale Bradford to the governor on Thursday.

Seigel, the only woman among the finalists from 15 original candidates, has been executive director of the Indiana Judicial Center since 1998. She has experience in private practice, as general counsel to the Indiana Association of Cities and Towns and as deputy counsel for the city of Indianapolis.

The state’s highest court has an impressive record of achievement in improving judicial procedures throughout the state, but its reputation is limited by its composition. To continue as an all-male panel in 2012 places the public’s confidence in its work at risk. Gender diversity can’t be discounted when the court must rule on matters uniquely shaped by gender differences, including decisions on parental visitation rights, domestic violence and more.

Indiana, Iowa and Idaho are the only states with no female representation on their highest court. The work of law clerks might add a female perspective to Supreme Court decisions, but the absence of a female justice sends a poor message to every young woman in the state.

Each of the three finalists for the court is eminently qualified; only one is female.

It should make the governor’s work very easy.

Posted by Marcia Oddi on Sunday, February 26, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - "Regulating ‘adult’ businesses no simple task"

J. Swygart had this story in the Feb. 24th Decatur Daily Democrat. Some quotes:

Members of the Decatur Plan Commission are learning that implementing changes to the city’s zoning regulations to govern adult and sexually-oriented business may be more difficult and time-consuming than first believed.

The panel met for more than an hour Thursday afternoon to fine-tune recommendations first made public earlier this month surrounding changes to city zoning laws that would restrict where adult and sexually-oriented business may legally open their doors. But as Thursday's meeting wore on, more and more questions arose about certain provisions of the new law. Most of the confusion centered around the licensing and application process for adult business owners as outlined in the proposal, and the cost of criminal background checks that will be required for owners and employees of such businesses.

Decatur City Attorney Tim Baker said licensing fees cannot be "exorbitant," and are intended only to cover administrative costs associated with their issuance. The zoning ordinance as currently written calls for criminal background checks for all adult business owners and employees, but commission members questioned at length the process and cost for obtaining that documentation. It was agreed that more information was needed before any changes are implemented. * * *

The plan commission earlier this month held a public hearing to address what Baker said was a "general inquiry" concerning Decatur’s existing regulations governing adult businesses." That prompted us to take a look at what, if anything, the city should do,” Baker said.

Addressing a dozen area residents on hand for the plan commission meeting at the Riverside Center, Baker said that instituting a citywide ban on some or all types of adult and sexually-oriented business is not an option. He said court cases heard in federal courts have ruled that adult businesses, however undesirable they may be in a particular community, nonetheless enjoy the right to freedom of expression.

The proposed new zoning regulations would allow adult businesses only in portions of the city now zoned for industrial use. Current city zoning laws as written permit adult businesses in B-2 and B-3 business areas, but tougher restrictions written into the proposed amendment would place those locations off-limits to adult and sexually-oriented establishments.

The amendment, as currently written, would require that sexually-oriented businesses be located at least 1,000 feet from any residence, place of worship, school, hospital, public park, public library or child-care facility. Permits would be required of any such business, and criminal background checks would be performed for each owner and/or applicant. Signs at adult businesses would also be limited, with the proposed ordinance banning rooftop advertising and flashing lights, and limiting advertising signs to 32 square feet.

Posted by Marcia Oddi on Sunday, February 26, 2012
Posted to Indiana Government

Friday, February 24, 2012

Ind. Decisions - Still more on: SCOTUS grants cert in: Homeowners' Lose Sewer Suit Against City

There are TWO BIG oral arguments next Wednesday. Not only the Charlie White civil case, being argued before our Indiana Supreme Court (see this ILB entry for summary and documents), but Armour v. Indianapolis, being argued before the SCOTUS. (See this ILB entry for links to all the documents in that appeal.)

Today the Indianapolis Star has posted a lengthy story by Maureen Groppe, Gannett Washington Bureau, on the Armour appeal, headed "Before Supreme Court, Indianapolis to defend charging different amounts for sewers." It begins:

WASHINGTON -- Whether the good fortune of some Indianapolis homeowners who saved themselves thousands of dollars simply by putting off paying a bill is unconstitutionally unfair will be debated by the nine U.S. Supreme Court justices on Wednesday.

The city of Indianapolis will defend the fact that some residents paid $9,278 for a sewer hookup while others in the same neighborhood paid only $309.

That happened because the city forgave outstanding balances owed by some homeowners in the Northern Estates subdivision for a 2003 sewer project when the city later switched to a new funding system.

Indianapolis argues that officials chose a rational way to transition to the new system and the city's action was no different from countless other government amnesty or forgiveness programs.

Organizations representing state and local government officials across the country have asked the Supreme Court to side with Indianapolis.

But homeowners who paid the full price for their sewer hookup argue the city violated their constitutional right to be treated equally and they deserve a refund.

Taxpayer-right groups back the homeowners, as did a Marion County court and the Indiana Court of Appeals. The Indiana Supreme Court sided with Indianapolis last year. * * *

In a separate suit by homeowners filed in federal court, a federal judge in Indianapolis ruled in 2010 that the city violated the equal-protection clause. The opposing conclusions reached by the federal judge and by the Indiana Supreme Court may be a reason the U.S. Supreme Court decided to get involved.

ILB: This is the first I've heard of a federal suit; would like to post.

Posted by Marcia Oddi on Friday, February 24, 2012
Posted to Ind. Sup.Ct. Decisions

Courts - More on "Keep Your Hands off My Briefs: Lawyers Sue Westlaw, Lexis"

Updating yesterday's ILB entry, Law Librarian Blog has a good post today. Some quotes:

Two lawyers have opened a can of copyright worms by filing a class action suit against West and Lexis for using briefs in the brief banks sold by their respective companies. They allege that these documents are copyrighted by attorneys and seek damages, the amounts depending on whether the works are registered or not registered. * * *

[S]ome questions come immediately to mind. The first is who actually owns the work. I understand the registration, but lawyers being lawyers and the smell of money enticing, will there be clients intervening claiming the document was a work for hire?

[More] See also this post by Eugene Volokh headed "Do Lexis and Westlaw Infringe Copyright When They Post Briefs Filed in Court?." A sample:
The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there’s no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It’s also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry.

Posted by Marcia Oddi on Friday, February 24, 2012
Posted to General Law Related

Vacancy on Supreme Court 2012 - Videos of finalists

The ISBA has now posted the videos of JNC's interviews of the three candidates selected as finalists (slow to load):

Posted by Marcia Oddi on Friday, February 24, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In CFS, LLC and Charles Blackwelder v. Bank of America, Successor in Interest to LaSalle Bank Midwest National Association , a 7-page opinion, Judge Bailey writes:

[CFS appeals the Bank's foreclosure.] CFS presents a single, consolidated issue: whether summary judgment was improvidently granted. We affirm. * * *

CFS alleges that the trial court granted summary judgment only upon improperly considering new evidence submitted upon motion to correct error. * * *

Rather than a factual dispute, the trial court struggled with a legal issue: whether a successor bank surviving after merger could enforce the note and mortgage of the predecessor. * * *

In light of this authority, and the uncontroverted averments of the complaint and affidavit of debt, the trial court granted summary judgment in favor of the Bank. * * *

The Bank established that there exists no genuine issue as to a material fact and that it is entitled to judgment as a matter of law.

NFP civil opinions today (3):

Sasha Slater v. Ridinger Enterprises, Inc., d/b/a Shakamak IGA (NFP)

T.W.O. f/k/a T.L.W. v. G.A.W. (NFP)

In Re: Levi Jacob Loucks Testimonial Trust and James M. Loucks, Trustee; Angel M. Lepley v. Levi J. Loucks (NFP)

NFP criminal opinions today (6):

Undray D. Wilson v. State of Indiana (NFP)

Jeremy D. Stone v. State of Indiana (NFP)

Danny W. Ramsey v. State of Indiana (NFP)

Antoine L. Skinner v. State of Indiana (NFP)

Zachery Lewis v. State of Indiana (NFP)

Henry A. Booker v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 24, 2012
Posted to Ind. App.Ct. Decisions

Vacancy on Supreme Court 2012 - Scuttlebutt re Governor's appointment process

The ILB has heard (for what it's worth) that the Governor intends to act quickly this time in making his appointment, rather than taking his full 60 days.

Indiana Legislative Insight for Feb. 27th includes this item:

Expect the Governor's counsel, Anita Samuel to sit down with each, and one of the homework assignments may be to evaluate three out-of-state appellate opinions to help her and the Governor get a handle on their respective judicial philosophies, and assess how "activist" they might be if appointed to the bench.

Posted by Marcia Oddi on Friday, February 24, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - Glossary of Indiana legislative terms

The Indiana Senate Democratic Caucus has made available online a useful Glossary of Legislative Terms. A sample:

Germane/Germaneness: Relevance of amendment to subject matter of the bill to which it is being proposed.

Gerrymandering: Drawing legislative district boundary lines to obtain partisan or factional advantages.

Grandfather Clause: A provision exempting persons or other entities already engaged in an activity from new rules or legislation affecting that activity. Grandfather clauses sometimes are added to legislation to avoid antagonizing groups with established interests in the activities affected.

Gut a Bill: Striking everything after the enacting clause of a bill and inserting entirely new material.

Posted by Marcia Oddi on Friday, February 24, 2012
Posted to Indiana Government

Ind. Gov't. - Ind. Election Commission meeting Friday

Re: Marathon meeting of Indiana Election Commission set for Friday in House Chambers. Will be live streamed. Here is the massive agenda.

That was from Wed. Word Thurs. was that it won't be live-streamed after all; that Speaker Bosma nixed the broadcasting of the public meeting.

This morning I'm hearing both that will and will not be streaming online. Whatever, the ILB can't see it at either the regular House video link or via other links I've been told about.

Mary Beth Schneider ‏ @marybschneider of the Star is tweeting it.

[More] Several people had sent me notes saying they can see video, but no audio, at this link: http://t.co/53etEe3H.

Posted by Marcia Oddi on Friday, February 24, 2012
Posted to Indiana Government

Vacancy on Supreme Court 2012 - Press reports of selection of finalists

"3 finalists are selected for Indiana Supreme Court," report Bill McCleeryand William J. Booher here in the Indianapolis Star.

"Former Press reporter among finalists for Indiana Supreme Court," is the heading to a story today, featuring Mark Massa, by Eric Bradner of the Evansville Courier & Press.

Posted by Marcia Oddi on Friday, February 24, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - "DNR raids Clay County hunting preserve" [Updated]

Updating this ILB entry from Feb. 4 headed "Fenced hunting never really dead," and this one from Feb. 1st headed "Fenced hunting dead; how about bill allowing silencers for hunters?," Heather MacWilliams of Fox 59 reported last evening in a story and video headed "DNR raids Clay County hunting preserve: A Clay County hunting preserve could be shut down after the Department of Natural Resources raided the property Thursday." Some quotes:

A Clay County hunting preserve could be shut down after the Department of Natural Resources raided the property Thursday.

The raid followed a year-long investigation. The investigation found that the owners would let its clients hunt outside the preserve's limits, hunt off-season and even provide them with illegal weaponry.

The emergency raid took place at the Prairie Grove Hunting Preserve located six miles south of Brazil, Ind.

[Updated] Here is the WISH-TV story.

Posted by Marcia Oddi on Friday, February 24, 2012
Posted to Indiana Government

Thursday, February 23, 2012

Vacancy on Supreme Court 2012 - When exactly is CJ retiring?

The information the ILB received in December was that Chief Justice Shepard is retiring on March 4th. See this ILB entry from Dec. 8, 2011.

The ILB heard today that the Chief Justice is merely stepping down as CJ on March 4th, but not retiring from the Court until "sometime later" in March.

That would mean there will be no vacancy on the Court until that "sometime later" date, but there will be a vacancy in the position of Chief Justice after March 4th.

Whether then-Justice Shepard remains on the Court after March 4th or not, the information has always been that Justice Dickson, as the then-longest-serving justice (excluding Shepard himself), will fill the position as Acting Chief Justice when Shepard steps down.

Perhaps someone can clarify?

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Interest in interviews

12,318 ILB page views so far today.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't - Charlie White sentencing

Judge did not reduce the six felonies to misdemeanors. White to serve one-year sentences concurrently, via home detention. Sentence will not begin until after appeal. Given public defender for appeal.

Governor's office, per Mary Beth Schneider: No comment, waiting for Sup Crt. to settle Dem challenge of his ballot eligibility.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Indiana Government

Vacancy on Supreme Court 2012 - Finalists named

The Judicial Nominating Commission will send these three names to the Governor:

Jane Seigel, Mark Massa, Cale Bradford

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Announcement coming

In about 10 minutes, the Commission will publicly convene and make announcement.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - No word yet ...

No word yet, Judicial Nominating Commission has been in executive session since 12:45 - four hours.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court -"Supreme Court semi-finalists discuss gender diversity"

Bill McCleery of the Indianapolis Star has a brief story on this morning's interviews, where gender played a part in the Q & A. One particularly notable paragraph:

The discussion of gender diversity sometimes seemed a delicate one for the four male contenders, who were left in the position of touting the concept of adding a female justice while indicating that, in this case, their own specific merits might supersede that goal.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Vacancy on Supreme Court 2012

Courts - "Keep Your Hands off My Briefs: Lawyers Sue Westlaw, Lexis"

That is the heading to this WSJ Law Blog post by Chad Bray, dated Feb. 22. Some quotes from the "brief" entry:

Edward L. White, a Oklahoma City, Okla., lawyer, and Kenneth Elan, claim WestLaw and LexisNexis have engaged in “unabashed wholesale copying of thousands of copyright-protected works created by, and owned by, the attorneys and law firms who authored them” — namely publicly filed briefs, motions and other legal documents.
This is a topic the ILB has written about before, from various angles. See, for example:
Ind. Courts - "Calif. High Court Reflects on Brief Policy"; What About Indiana?

That first clause is the heading to this story today by by Mike McKee of The Recorder, whose report begins:Hoping to avoid a potential copyright fight, the California Supreme Court might soon stop shipping copies of attorneys' briefs to Westlaw...

Posted in The Indiana Law Blog on November 3, 2009 03:29 PM

Courts - Attorney sanctioned for plagiarizing material for briefs and by unreasonably billing his client for preparation of the briefs

Well, this is an attention getter. This order from an Iowa bankruptcy court, dated August 21, 2007 includes the following:After reading both briefs filed by Mr. Cannon, and concluding that both contained an extraordinary amount of research, the Court directed...

Posted in The Indiana Law Blog on September 8, 2007 09:06 AM

Law - "A Quest to Get More Court Rulings Online, and Free"

John Markoff, technology reporter for the NY Times, writes today about "A Quest to Get More Court Rulings Online, and Free." As he notes, this effort has been ongoing for years now. "The two companies control the bulk of the...

Posted in The Indiana Law Blog on August 20, 2007 12:00 PM

Law - "Is It OK for Lawyers to Copy Complaints?" And what about copyrighting briefs?

The Wall Street Journal Blog had a thought-provoking entry May 16th asking "Is It OK for Lawyers to Copy Complaints?" Peter Lattman of the WST Blog writes that of the two class-action lawsuits he had reviewed this month, the second...

Posted in The Indiana Law Blog on May 27, 2007 10:57 AM

Here is the complaint in the lawsuit discussed by the WSJ, White v. West, filed Feb. 22, 2012 in SD NY.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Courts in general

Vacancy on Supreme Court 2012 - Photos from this morning's interviews

The Supreme Court press office has posted this photo set. But try this view.

And here are the media. Prof. Schumm is in light-colored shirt.

Media at the table

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - "Special prosecutor appointed for Camm trial: Stan Levco is former Vanderburgh County prosecutor"

Matt Thacker of the New Albany News & Tribune has the breaking story here. Some quotes:

NEW ALBANY — Spencer County Judge Jonathan Dartt appointed former Vanderburgh County Prosecutor Stan Levco on Wednesday as special prosecutor for the David Camm case.

Levco began as chief deputy prosecutor in Posey County in 1972 and served as judge for a short time before joining the Vanderburgh County Prosecutor’s Office in 1980, according to a profile in the Evansville Courier Press. Levco was elected prosecutor in 1990 and served until he lost his bid for re-election in 2010. He then became a special prosecutor for the state.

Levco has extensive experience with high-profile cases. At least three men have been sentenced to death in murder cases where he was involved in the prosecution. Two of those men were accused of murdering their wives and families.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Indiana Courts

Vacancy on Supreme Court 2012 - Report on the final 4 interviews

This is Prof. Schumm's report on the final four semi-finalist interviews

Hon. Robyn Moberly, Indianapolis (photo) (application)

Judge Moberly opened by describing her finest professional contribution as her role in expanding pro bono opportunities in central Indiana. When Judge Moberly moved from the criminal bench to the civil bench, she saw many litigants who did not have counsel. Working with the Indianapolis Bar Association, she helped create a list of 75 lawyers who agreed to provide pro bono representation. She also helped create a relationship with hospice to allow lawyers to help individuals dealing with end-of-life issues. Finally, she worked in Marion County to create a program similar to one in Allen County that provides for free or nearly-free mediation in family law cases.

Judge Moberly described her two areas for reform as (1) combating the disproportionate and diminishing funding for courts (2) reducing time for preparation of the appellate records. As to the first, she cited specific examples of funding decreases in some of Indiana’s courts, including 6% in Marion County. The disproportionate funding, as the Chief later asked, means that some programs are “not even an option” in some counties. Moreover, family law matters often need to be addressed quickly; litigants can’t be told “to come back in four months.” Spotty, unfair justice in the state also creates a bad business environment for the state. Second, Judge Moberly noted that the Court of Appeals decides cases in 1.1 months but record preparation at the front end of the case take much longer. Court reporters are allowed 90 days to prepare transcripts. She posited that a paper transcript may not be necessary, as many courts can instantly send a digitized audio file of proceedings. She also suggested court documents could be sent electronically.

In response to Mr. McDonald’s question about the importance of gender diversity, Judge Moberly discussed the recent Seventh Circuit opinion involving a Title IX challenge involving high school girl’s basketball. (Amber Parker v. Franklin Comm. Sch.) She noted the trial judge, who she thought was “brilliant,” granted summary judgment. The Seventh Circuit reversed. Judge Moberly did not discuss the merits of that decision but noted that the importance of the presence of Judge Dianne Wood on the panel, which brought a different and important perspective. The process is also perceived as more fair when the litigants and their families see a court that reflects the diversity of society.

In response to a question from Ms. Northernor about an ethical challenge, Judge Moberly said she has “observed very few.” She noted a discussion when colleague had some “personal issues” that affected their work, and whether a referral to JLAP was appropriate. After a discussion with other concerned colleagues, a referral was made by another colleague.

In response to a question from Mr. Ulmer, Judge Moberly discussed the importance of precedent but noted that sometimes precedent may need to be changed. Her personal views would not enter into this.

Mr. McCashland asked if Judge Moberly would find it difficult to work with people with different views. Judge Moberly noted that she worked in mediation as early as the 1980s and the managing of the Marion County courts has involved a great deal of collaboration. She “likes a good, lively discussion” and can be swayed by principled arguments from others.

Ms. Kitchell asked about a Supreme Court decision that stands out in her mind. Judge Moberly noted Marbury v. Madison, and then Dredd Scott, as a negative decision.

Ms. Northernor asked about the role of “public policy” in judicial decisions. Judge Moberly explained the importance of legislative intent, which is difficult to discern because of the absence of legislative history. She said “public sentiment at any moment” should not guide the decision, but the Court should try to hear what the legislature was saying.

The Chief Justice briefly read from a letter sent by Sen. Randy Head, who described Judge Moberly as the best judge he had appeared before.

Judge Moberly concluded by discussing the importance of the Court being deferential to the executive and legislative branches. Judges should decide as little as they must, taking “baby steps” whenever possible and avoiding constitutional questions.

Mr. Mark Massa, Indianapolis (photo) (application)

Mr. Massa described his finest professional achievement by referring to question 6(f) from the application regarding the five most significant cases, specifically noting prosecuting a death penalty case and defending someone facing a grand jury indictment. He specifically discussed his work as general counsel for Governor Daniels, which included appointing 34 judges, including many women and minorities. He mentioned by name Judge Rudy Pyle, one of the first ICLEO graduates, and Judge Margot Reagan in South Bend. He also cited his work in a veto of House Bill 1491, which would have abolished merit selection in St. Joseph County.

As to the two improvements, Mr. Massa first cited the need to address low-level non-violent offenders. Although this may sounds like an executive branch decision at first blush, the judiciary has an important role as well. The Criminal Justice Institute is currently looking at these cases from all 92 counties to try gain a better understanding and solution. Second, he cited the need to build a more unified court system, acknowledging the JTAC/Odyssey project in particular but noting more work needs to be done. He did not advocate merit selection for all judges but emphasized it should be retained where it has worked.

Mr. McDonald said he saw the Indiana Law Blog post on the 2010 prosecutor advertisement , and he found the ad “disturbing.” Mr. Massa responded that different rules apply in “highly contentious, hardball campaigns.” Campaigns are a “tough, nasty business.” He emphasized pride in his 22 years of work as a prosecutor. On a more personal level, he noted that he has dated a criminal defense attorney for the past few years, and she “would not be with him” if she thought he did not also support the importance of principles like the presumption of innocence. Mr. McDonald pressed further, and Mr. Massa acknowledged it was a “fair question,” noting he could not “unring that bell,” and again the difference of standards that apply to a campaign. If he is appointed, he would maintain civility within the bar.

Ms. Kitchell asked how Mr. Massa’s criminal expertise would translate to civil cases. Mr. Massa cited his four years as chief counsel to Governor Daniels, which involved civil cases.

Mr. Winningham followed on Mr. McDonald’s question, asking how criminal defense lawyers, many of whom elected him and others to the Commission, would feel about his impartiality in light of the 2010 prosecutor campaign commercial. Mr. Massa again turned to his work as a prosecutor and cited an example of dismissing charges against defendants when appropriate. Mr. Winningham cited Mr. Massa’s twelve prior jobs, most have been political in some way, and asked whether that raises concerns about impartiality. He cited the example of the Bayh residency challenge, where a unanimous court (four of whom were Republicans) ruled in favor of Evan Bayh, as an example of judges should and have acted impartially despite their prior political backgrounds.

In response with Mr. McCashland’s question about what Mr. Massa would do if he was not a lawyer, and he responded, “teach history and coach basketball at a Catholic high school,” which brought laughter because of the similarity to Mr. McCashland career.

In response to a question about Mr. Massa’s interest in reading non-fiction, Mr. Massa mentioned the most recent books he read were P.J. O’Rourke’s Don’t Vote: It Just Encourages the Bastards, and before that, Gov. Daniels’ book.

Finally, in response to Mr. McDonald’s question on diversity, Mr. Massa suggested “it was not for [him] to say,” to pervade the “province of the jury.” He again mentioned the many women appointed by Gov. Daniels as judges.

In concluding, Mr. Massa noted he would bring “a unique appreciation” for the institution the Court.

Hon Cale Bradford, Indianapolis (photo) (application)

[The interview did not begin until 11:38. The Massa interview ended a little late, but there was a break of a few minutes before Judge Bradford entered the room. The cause of the delay was unclear to me, from my vantage point in the far corner of the room.]

Judge Bradford emphasized the “redesign of juvenile justice” in Marion County as his proudest accomplishment. The administrative functions were consolidated within the superior court. Funding for CASAs was addressed, and the Early Intervention Planning Council was created. He also approached the Annie Casey Foundation to secure funding for the Judicial Detention Alternatives Initiative (JDAI). Finally, he emphasized the importance of risk assessment instruments for both juveniles.

As to improvements, Judge Bradford emphasized the important work trial courts do but noted very few have the assistance of law clerks for legal research. He cited the Kentucky example of using electronic records, which saves money and allowed them to fund trial court law clerks. Second, he emphasized the importance of automation and the need for further expansion of Odyssey. Rather than simply allowing docket access, e-filing of pleadings would allow for easier access to court documents to the public and lawyers.

In response to a question from Ms. Northernor about a difficult ethical situation, Judge Bradford described his work in drafting a search warrant as a federal prosecutor in a high profile drug case and removing an allegation that raised concerns under Brady v. Maryland. He cited the motto: “Get them right or get them another day.”

Judge Bradford answered the diversity question but emphasizing the diversity of his experience, citing his work as a defense lawyer sitting beside someone charged with a crime as a prosecutor sitting beside a crime victim. He continued with his work as a judge in both criminal and civil court, as a civil lawyer, and as an appellate judge.

Mr. McCashland asked, after the preface “I mean this question seriously,” “How do we teach parents parenting?” Judge Bradford explained the enormous task and need to wade into it and “do the best you can one family at a time.” The law is not only about written word but is about the people, who deserve equal access and opportunity. When people cannot look anywhere else, they look to the courts.

In response to a question about something Judge Bradford would do differently, Judge Bradford cited the Wiccan case, saying he had an opportunity as the trial court judge to correct the master commissioner and did not. The Court of Appeals correctly reversed him, and he strongly believes in the freedom of religion.

In response to Mr. Winningham’s question about judicial philosophy, Judge Bradford cited his deference to trial courts, which find the facts, and to the legislature, which is elected to determine matters of policy. A judicial decision involves “informing, directing, and inspiring.”

Judge Bradford closed by emphasizing the humility and broad base of experience he would bring to the Supreme Court, invoking the image of the “table” where important decisions are made. (The Supreme Court interviews are conducted at the table where the Supreme Court justices hold their weekly conference.)

Hon. Robert Altice, Indianapolis (photo) (application)

Judge Altice described his finest contribution as the Hamilton Avenue slaying case, which involved seven murder victims. Two defendants were tried separately: one in a bench trial and one by jury. He discussed the many challenges posed by the case, including the heightened media exposure, sequestering the jury, security issues, and a defendant with a difficult courtroom demeanor.

As to improvements, he first mentioned judicial performance evaluations. He recently attended a conference at the University of Denver and explained how such evaluations, which includes a detailed review by a commission and include courtroom observation, has been done effectively in other states. Second, he discussed the importance of continuing to modernize the court system through technology, which reduces cost and broadens access.

The Chief Justice noted that he had been assigned reference checking for Judge Alitce, and one reference mentioned Judge Altice’s interest in moving into a civil court. He responded, “twelve years of dead bodies” had been enough, and he was indeed planning to move to a civil court at the beginning of next year if re-elected.

In response to Mr. McDonald’s question about diversity, Judge Altice agreed that gender and racial diversity are important because “it adds perspective.” He said he expected the question and had discussed the issue with many people in the last couple of weeks. He specifically mentioned the response of his 75-year-old mother in law, who is also a lawyer, who emphasized the importance of finding the best person with the best character.

In response to Ms. Kitchell’s question about one thing he could change, Judge Altice emphasized he would improve his grades. He took advantage of the freedom college brought (a discussion he is now having with his son, a college sophomore) and has since matured and would do better.

In response to the question about judicial philosophy, Judge Altice emphasized the importance of adhering to precedent and deference to the legislature while not abdicating the judicial role.

Mr. Winningham asked about Judge Altice’s experience with the jury system, and Judge Altice responded that he could count on one hand the number of times in 200 jury trials that he thinks the jury “got it wrong.”

In response to Ms. Northernor’s question about a difficult ethical issue, Judge Altice noted an experience as a young prosecutor when he received a call about a case that had just been reversed on appeal . His reaction was quoted in the newspaper the next day, and he soon received a call from the judge who authored the opinion. He has since learned from the experience. Judge Altice emphasized that he had learned from that experience. In 1995, a judge granted a directed verdict based on self-defense. When approached by a reporter, he simply responded “no comment.” He noted, “being a lawyer is about learning from mistakes,” and Ms. Northernor agreed that “life” was about learning from mistakes.

Judge Altice acknowledged the difficulty of presiding over cases, such as child molesting cases, but emphasizing the importance of “it doesn’t matter who they are, they deserve to be treated with respect.”

Mr. Winningham asked how Judge Altice would approach situations when two panels of the Court of Appeals decide issues differently. A justice needs to do what is best for the State of Indiana, while looking to the approaches of other states.

In response to Ms. Kitchell’s question about a significant Supreme Court decision, Judge Altice cited Brown v. Board of Education, a rare case that took “guts” to correct something that was “just wrong.”

Judge Altice lauded the work of prosecutors and public defenders in his court, comparing them to the best lawyers among the private bar. He noted the surprise of jurors when he tells them at the end of a trial that the defense lawyer was a public defender who makes little money while doing a great job.
__________

The Commission went into Executive Session at 12:45, expect an announcement of the three finalists this afternoon.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - All seven interviews now concluded

Watch for summaries of the final four to be posted shortly.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Videos of three finalists

The ISBA will be posting videos of the three finalists' interviews this afternoon and the ILB will link to them.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Keith Woodson v. State of Indiana, an 18-page opinion, Judge Barnes writes:

Keith Woodson appeals the denial of his petition for post-conviction relief (“PCR petition”), which challenged his convictions for murder and Class A misdemeanor carrying a handgun without a license. We affirm. * * *

The post-conviction court was not clearly erroneous in finding that Harper's cross-examination of Owens and Johnson was not ineffective and that Harper was not ineffective for not attempting to procure the services of an eyewitness identification expert for Woodson's second trial. We affirm the denial of Woodson's PCR petition.

In Eriberto Quiroz v. State of Indiana , a 15-page opinion, Judges Mathias concludes:
The State presented evidence sufficient to support Quiroz’s convictions for both Class A felony and Class C felony child molesting. However, because the only evidence supporting the Class C felony conviction was precisely the same evidence used to support his Class A felony conviction, his conviction of both crimes constitutes impermissible double jeopardy. We therefore reverse Quiroz’s conviction for Class C felony child molesting and remand with instructions that the trial court vacate the conviction and sentence on this count. The trial court did not commit fundamental error by including in the jury instructions the charging information that included charges which had been previously dismissed. Lastly, Quiroz’s forty-year sentence is not inappropriate in light of the nature of the offenses and the character of the offender.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

In Bernard Short v. State of Indiana , an 8-page opinion, Judge Barnes concludes:
The trial court did not abuse its discretion by admitting the results of the chemical breath test, and the trial court properly rejected Short’s proposed jury instruction. We affirm.
NFP civil opinions today (6):

In the Matter of the Guardianship of John S. Zakrowski; Marsha L. Cummins v. Thomas L. Zakrowski (NFP)

S.D. v. B.D. (NFP)

Jeffrey Roser v. Jennifer Roser (NFP)

Daniel O'Reilly v. Ruth Doherty (NFP)

Kenneth Willis Gibbs-El v. Arthur Hegewald (NFP)

Hawkins Auto Stores, Inc. v. Brent F. Hehr (NFP)

NFP criminal opinions today (3):

Sandra Rivas v. State of Indiana (NFP)

Charles Smith v. State of Indiana (NFP)

Joseph Apongule v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Does an officeholder’s absence amounts to official neglect of duties under the statutes?"

On Feb. 19th the ILB posted an entry headed "Once elected, do county officers have to do more than pick up their paychecks?" It quoted a situation in Whitley County reported by the Fort Wayne Journal Gazette.

Today the FWJG has an editorial on absent officials:

Their circumstances are different, but the effect on taxpayers may well be the same.

The Whitley County assessor plans to be out of the office for six months this year. The Huntertown clerk-treasurer is ill, having suffered a stroke, and has been unable to perform his duties since October. Unless plans change, taxpayers will be paying both their salaries as well as paying employees hired to do their work.

While Indiana law sets plenty of rules for government workers, elected officials fall into their own category, largely to preserve their independence. As Whitley County Commissioner Don Amber explained, “Unfortunately for taxpayers, once a person is elected, that person can hold office for one day and not have to show up for the rest of the year.

“It’s a travesty.”

The case of Whitley County Assessor Angela Adams Heath, if not a travesty, is indefensible. She has informed county officials she plans to be out of the office from May through October, when she would return to finish the county’s reassessment. Her plan is to work until May 2013, then resign. She has asked the county to hire another employee to help with the workload in her absence. Though she offered to give up her pay during the period she is gone, state law directed toward protecting the independence of elected officials prohibits that.

Clearly, Adams Heath should resign.

The issue is a bit more difficult in Huntertown, because Clerk-Treasurer David Rudolph may well recover and return to work.

A bill that failed to get a hearing in this year’s legislative session would have required the county assessor and certain other elected officials to be in their offices at least 20 hours a week. But such a law could have the unintended consequence of justifying those officials working no more than 20-hour weeks.

A more appropriate law might allow an officeholder to step down temporarily. But that causes its own problems. Who appoints the successor? What if the appointed successor changes policies of the elected official?

Indiana law does offer citizens an acceptable option. Indiana Code 5-8-1-35 allows anyone to file an accusation in a county circuit court alleging that an officeholder is failing to perform his or her duties. The court must hear evidence and the officeholder’s defense.

If the accusation is sustained, the circuit court judge has the power to remove the officeholder.

This approach isn’t perfect. Circuit judges in Indiana are elected on partisan ballots, and concerns of conflicts could arise.

But removing an elected officeholder is a serious move, one judges will probably take very seriously. Judges can also hear the circumstances of the case and determine, for example, whether an illness is a valid reason to remove someone from office.

Asking a judge to consider whether an officeholder’s absence amounts to official neglect of duties is certainly appropriate in the Adams Heath case, and perhaps in Rudolph’s case as well.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Indiana Government

Ind. Gov't. - Zoeller is 3rd Attorney General to Affirm Senator's Status

WRTV6 is reporting:

Indiana Attorney General Greg Zoeller released an advisory letter Thursday that Sen. Richard Lugar's residency arrangements are legal.

Two previous attorneys general also signed off on Lugar's handling of his residency, in 1978 and 1982.

"The analysis and conclusions in the 1982 advisory letter remain valid," part of Zoeller's letter read. "Members of Congress do not lose their residency for voting purposes when they leave the state so that they may fulfill their duties."

A copy of the advisory opinion is linked to the story.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Indiana Government

Vacancy on Supreme Court 2012 - Report on the first 3 interviews

This is Prof. Schumm's report on the first three semi-finalist interviews

The Chief Justice opened the morning by commenting on the high caliber of applicants, including Ms. Seigel. He then asked her to respond to the two standard questions for “a few minutes to begin the conversation.” [Note: some applicants in 2010 spent much of their interview time on the standard questions instead of addressing those questions relatively briefly and then allowing for a “conversation” addressing questions from the Commissioners.]

Ms. Jane Seigel, Indianapolis (photo) (application)

Ms. Seigel responded that her finest professional accomplishment was her legacy—what she would want to be remembered for—namely, efforts in criminal justice reform, specifically problem-solving courts, including drug courts, re-entry courts, mental health courts, and veteran’s courts. The Judicial Center is nationally recognized for its certification process for problem-solving courts.

As to improvements to the judiciary, Ms. Seigel noted this was one of the charges for Judicial Center. She focused on two areas “near and dear to [her] heart.” First, she would prioritize state funding, especially for probation. The State is responsible for the standards for probation but counties must currently fund it. Second, she focused on services for keeping kids out of the juvenile justice system. She commented that “tremendous things” can happen when a justice lends their name to a project.

Mr. McDonald asked about the value of gender diversity of the Court. Ms. Seigel responded there was a lot of value, which was shared by many in the judiciary. She pointed to the ICLEO program, the Race and Gender Fairness Commission, and other initiatives. Diversity “adds a richness to the dialogue” and gives greater confidence to the system when those leading it look like those in the public. She has a daughter who is a first year law student, and she wants her and her female friends to believe there are no barriers for them to do anything they seek to do. If selected, Ms. Seigel hopes it would be because of her abilities—not her gender.

Mr. McCashland asked about her “moral ethics” and how she would handle a case that “goes against her moral ethics.” Seigel responded that she hopes her ethics “line up with the law.” He asked if she would have “any problem working with four men” and then looked at the Chief Justice. To laughter, the Chief said, “Don’t look at me,” because he’s leaving. Seigel responded she had worked a great deal with the four men remaining on the Court and would enjoy working even further with them.

In response to Mr. Winningham’s question about “judicial philosophy,” Ms. Seigel paused a bit…said that was a “good question,” and then talked about “fairness” and “judging each case individually.” She also emphasized “applying the plain meaning of the statute” and “consistency.”

In response to a question from Ms. Northernor about the “most challenging ethical challenge” she has faced in her work with the Judicial Center, Ms. Seigel responded that judges sometimes “stray from the judicial canons” and lauded the work of the Qualifications Commission in providing guidance. She said she was most “disturbed” by judges using their authority in ways that undermine the public’s confidence in the system.

Mr. Ulmer asked a follow up question about how the system “treats kids.” Ms. Seigel explained the Child in Need of Services emphasis on abuse and neglect but that some children enter through the delinquency system through related issues. At some point we may “need to start from scratch” in reforming the system.

Ms. Kitchell asked about Ms. Seigel’s role in writing and her writing samples, which is often collaborative. Ms. Seigel responded she is a “significant editor” and that her office likes to have “three sets of eyes” on everything before it goes out of door. Ms. Seigel said she now has a “significant amount of help” in some writing projects now that she has many other duties.

Hon. Maria Granger, Indianapolis (photo) (application)

Judge Granger explained her finest legal accomplishment has been her “service as a trial judge.” She noted the “unique opportunity” to create a court based on integrity and respect. The court was created to respond to the growth of case filings in Floyd County, and it was important to operate the court as efficiently as possible. In a two month period after election, she needed to hire staff and develop procedures, especially regarding self-represented litigants. She noted that she participated in last year’s Law School for Journalists about sentencing and the importance of helping journalists and the public better understand sentencing and the court system. Her court hears a variety of cases and she is able to “impact the lives of every day citizens” in each type of cases. She “does her own research and writing” as a judge and enjoys delving into the complexity of the law.

She identified two reforms to the judicial system as (1) “safeguarding access to justice” and (2) developing “meaningful approaches to sentencing.” Centralizing and equalizing funding would help ensure an equitable distribution so litigants with the least and the most have the same opportunities. She emphasized the importance of pursuing other funding options. Second, Judge Granger noted it costs $53.96/day to house an offender, and less costly alternatives must be further considered. Tools such as risk assessment can help better make a determination of which offenders are more appropriate for alternatives to prison. She would focus on expanding veterans’ courts, which allows the use of federal funds that are not available for some other problem-solving courts. The Chief Justice responded this was a “great list.”

The Chief Justice asked about the “extra time” Judge Granger has put into debt-collection cases, and Judge Granger noted she has trained her staff to look carefully at those cases to make sure the real party in interest has been named and there is a legitimate basis for the debt.

Mr. McDonald asked about the importance of “gender diversity.” Judge Granger responded that diversity enriches our institutions and our lives. Her participation on the ICLEO board for the past five years has allowed her to help ensure the legal profession is more diverse. Her background growing up in Washington, Indiana has helped her better to understand the impact of the law on others.

Ms. Northernor again read, as she had in the first round, from Judge Granger’s letter about the “role of judges,” including respect for precedent and the need to interpret and not make the law. Ms. Northernor then asked about her “most challenging ethical dilemma” and how it was addressed. Judge Granger noted that she funded much of her own judicial campaign and limited contributions to small amounts.

In response to a question from Mr. Ulmer, Judge Granger emphasized the importance of putting her personal feelings aside and upholding the law, whether she agrees or disagrees with it.

Mr. Winningham asked Judge Granger to identify a couple of civil issues she has had to decide during her three years on the bench. She discussed a zoning case involving a biomass plant on which she was appointed as special judge. Without concern for the “politics” of the matter, she found the zoning commission’s decision should be reversed. Second, in sentencing matters, she emphasized the importance of applying the appropriate aggravating and mitigating factors in reaching a decision.

Ms. Kitchell asked about a professional experience Judge Granger would do differently if she had the opportunity. After a pause and noting it was a “good question,” Judge Granger noted the need to leave the prosecutor’s office and hang out her own shingle, which was challenging, for the flexibility necessary to address the challenge of being a single parent.

Mr. McCashland asked what Judge Granger would like to do if she was not a judge. Judge Granger loves music, which “nurtures what is inside a person,” and she would perform or teach music if not a lawyer.

Mr. Steven Schultz, Indianapolis (photo) (application)

Mr. Schultz began by noting his professional accomplishments have largely been part of a team. He explained his admission to practice of the law in 1989, the first member of the family to be a lawyer. That experience provides the basis for all the later professional accomplishments, including his work with Governor Daniels as chief counsel, his work with Irwin Bank and its importance to the community, and finally helping to lead the Ohio Rivers Bridges Project from forty years of wandering to the banks of the “promised land.”

As to two reforms, Mr. Schultz first emphasized moving toward a more unified and simplified trial court system. The strategic plan described the problem well, and Mr. Schultz’s work at Irwin and with Governor Daniels allowed him to reform and change systems for greater efficiency and effectiveness. Second, he cited the importance of moving toward a paperless system for court documents. The ability to file cases electronically, as in the federal system that also allows reasonable accommodations for those without internet access, are well worth pursuing and would be more efficient for lawyers and provide greater access to the public. The Chief Justice thanked Mr. Schultz for the “very thoughtful answer.”

The Chief Justice asked about the role of courts in economic development. Mr. Schultz emphasized the importance of “stability” in the legal system to aid investment and economic development decisions. He emphasized the importance of “judicial restraint” and not “legislating from the bench” to bring economic development.

Mr. McDonald asked the importance of gender diversity, and Mr. Schultz noted it was an important consideration but not the “only type of diversity.” Mr. Schultz emphasized his background , which would complement and add a new perspective to the Court. Specifically he mentioned his work in the private sector, government, and internationally.

Ms. Kitchell asked if Mr. Schultz would have done a professional experience differently if he had the chance. He acknowledged his practice background was different from the attorney members of the Commission. Mr. Schultz would have been a more active member of the bar association, which he did not do because of the transactional nature of his practice. Mr. Winningham followed up with a question about the opportunities for interacting with lawyers and judges through the bar associations, and Mr. Schultz noted the opportunities for interaction through law firm practice and the opportunities to interact with the judiciary through his work as counsel to the Governor.

In response to a question from Mr. McCashland about his educational experience, Mr. Schultz emphasized the mentor relationship some of his professors at Butler provided. He most enjoyed the research and writing opportunities.

Mr. McDonald asked about the status on the roll of attorneys, which showed a gap in active status before 2003. Mr. Schultz responded he was unaware of it and believes this may have occurred because of failure to timely return registration paperwork after his family returned to the United States from London.

Mr. Winningham asked about a writing sample that discussed the unfunded mandate nature of the Americans with Disabilities Act (ADA), and Mr. Schultz responded the Act was of enormous benefit and important to civil rights.

Mr. Schultz returned to the diversity of prior work experience in an effective conclusion to the interview.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - "Amendments to DCS bill die in Indiana House committee"

Updating a long series of ILB entries on DCS issues, the most recent of which is here, Tim Evans reports today in the Indianapolis Star, in a story that begins:

Legislation that would have required more accountability and oversight of the Department of Child Services died in a House committee Wednesday when the chairwoman refused to allow the proposal to be heard.

State Rep. Cindy Noe, R-Indianapolis, who chairs the House Committee on Family, Children and Human Affairs, refused to hear two amendments to a DCS bill that were proposed by Democratic lawmakers.

The additions would have created an oversight committee and addressed concerns about the agency's new hotline that funnels all reports of child abuse and neglect to a central call center in Indianapolis.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Indiana Government

Ind. Gov't. - "Clark County tax language removed from bill"

Updating this ILB entry from Jan. 30th, headed "Clark County seeks special property tax; Judge Wentworth hears appeal on property levy," Ben Zion Hershberg reports today in the Louisville Courier Journal:

Indiana Rep. Ed Clere, D-New Albany, eliminated language from a bill in the House Ways and Means Committee Wednesday that would have allowed a special property-tax increase of about $500,000 a year.

“I will continue to look for ways to help Clark County,” said Clere, who represents one precinct in Clark.

But he asked the House Ways and Means Committee, of which he is a member, to eliminate the language Wednesday because he was uncomfortable with its possible effects.

He said he saw the legislation as “second guessing” a decision made nearly five years ago by locally elected political leaders, and he is philosophically opposed to state government taking such action.

Sen. Jim Smith, who added the language to Senate Bill 344, said his intention was to help the county stabilize its finances after its council decided in 2007 to cut $2.7 million from county property-tax collections in 2008.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Indiana Government

Ind. Gov't. - "Two or four-page county report cost $6,000"

The Muncie Star-Press column, the Walker/Roysdon Report, reported Feb. 18th in a long story that began:

Delaware County officials are privately expressing shock and frustration over the cost per page of a report intended to define problems with the county's internal financial system.

In late January, county officials hired Indianapolis consulting firm Crowe Horwath and agreed to pay the company $6,000 for a study and report on how to straighten out kinks and open up bottlenecks in the multi-office process of assessing, billing and collecting property taxes. The action came after officials noted tax revenue was months late flowing to local units of government. * * *

Twenty of the two-page report's 27 paragraphs recap the problem and seven paragraphs offer recommendations along the lines of "perform a more detailed analysis" and "facilitate a discussion" between companies offering the two types of software.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Indiana Government

Vacancy on the Supreme Court 2012 - Semi-finalist interviews have begun

Here is the interview schedule:

8:45 a.m. – 9:15 a.m. – Ms. Jane Seigel
9:15 a.m. – 9:45 a.m. – Hon. Maria Granger
9:45 a.m. – 10:15 a.m. – Mr. Steven Schultz

(Break)

10:30 a.m. – 11:00 a.m. – Hon. Robyn Moberly
11:00 a.m. – 11:30 a.m. – Mr. Mark Massa
11:30 a.m. – 12:00 p.m. – Hon Cale Bradford
12:00 p.m. – 12:30 p.m. – Hon. Robert Altice

(Break)

12:45 p.m. – Deliberations in Executive Session

Prof. Joel Schumm will again be reporting for the ILB.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - Charlie White criminal court sentencing this afternoon

Carrie Ritchie of the Indianapolis Star has a story here that begins:

Charlie White's words might come back to haunt him today at his sentencing hearing on six felony convictions.
Earlier White entries here.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Indiana Government

Ind. Courts - Still more on "Indiana Supreme Court Creates Task Force to Evaluate Marion County Small Claims Courts"

Updating this ILB entry from Feb. 16th, the first public hearing was last evening at the Pike Twp Small Claims Court. But as of yet the ILB has seen no news reports.

Posted by Marcia Oddi on Thursday, February 23, 2012
Posted to Indiana Courts

Wednesday, February 22, 2012

Ind. Gov't. - "Tax breaks for Rockport gas plant stripped from bill in Indiana legislature"

Updating earlier ILB entries, Lesley Weidenbener reports this evening in the Evansville Courier & Press in a story that begins:

INDIANAPOLIS — Questions about a synthetic natural gas plant proposed for Southern Indiana led a House committee Wednesday to strip tax breaks for the $2.6 billion project from a bill that already has passed the Senate.

The Ways and Means Committee also eliminated language from Senate Bill 344 that would have taken industrial customers — those who use so much natural gas they strike their own purchasing contracts — out of the customer deal that led the General Assembly to OK the plant in 2007.

“I am still for the project,” said Rep. Suzanne Crouch, R-Evansville, who voted for the Indiana Gasification plant in 2007 and authored Wednesday’s amendments.

“But I believe the General Assembly has provided enough tools for the project,” Crouch said. “When is enough enough? When do we move from a public-private partnership to a publicly subsidized project?”

Others, though, expressed concern about whether the project should move forward at all. Rep. Win Moses, D-South Bend, said he initially supported the idea because it would convert Indiana coal to a cleaner fuel and because it seemed like it would save Hoosiers money.

Now, he said, the plant will not be required to use Indiana coal and the savings are unclear.

“I really hoped the governor would pull the plug,” Moses said.

The Ways and Means Committee voted 22-2 to remove the Indiana Gasification language from SB 344. * * *

Because SB 344 passed the Senate with the Indiana Gasification language in the bill, it remains alive for this session. That means it could still be amended into other legislation.

Ways and Means Chairman Jeff Espich, R-Uniondale, said the issue might not be dead but said it “needs to continue to be reviewed.”

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Indiana Government

Ind. Gov't. - "City governments across the country are threatening to kill the food truck revolution with dumb regulations."

So reports Matthew Yglesias in a story today in Slate. A sample:

It’s difficult to know precisely where the line should be drawn. The food service industry is generally heavily regulated for safety purposes, and trucks should be no exception to that. And food sales are intimately related to parking, a fraught and much-regulated activity all its own.

But a basic rule of thumb seems to suggest itself: The fact that business owners would prefer not to face competition is not a valid regulatory purpose. A food truck is a kitchen and a vehicle and should need to follow the rules that generally apply to both things. But there’s no need for extra regulatory burdens over and above those. If you’re allowed to have a restaurant two blocks away from a school, there’s no reason to ban a food truck. If you’re allowed to park a van in a space somewhere, there’s no reason to ban parking a van that also happens to sell food.

Most of all, the fact that an existing business owner objects to the practices of a new business is a terrible reason to block a truck from operating. Space is scarce and rents are high in the centers of major American cities. If new competition can bring prices down, we’ll all be better off in the long run. Meanwhile purveyors of traditional restaurants will be challenged to deploy their unique assets—tables, chairs, a roof, walls—in ways that provide meaningful value to customers. Municipal authorities need to learn to welcome the explosion of innovation happening around them and stop trying to choke it off.

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Indiana Government

Ind. Gov't. - "Indiana Supreme Court ruling will determine who is next Secretary of State" [Updated]

That was the headline to Eric Bradner's Feb. 15th story in the Evansville Courier & Press. Here are some quotes:

INDIANAPOLIS — Now that former Indiana Secretary of State Charlie White has been removed from that office, the Indiana Supreme Court will decide, in effect, whether a Republican or a Democrat will replace him.

The five-member court has scheduled a Feb. 29 hearing on a case to determine whether White, a Republican who won the office in November 2010, was eligible to be a candidate in the first place because of voter registration discrepancies.

The three-member Indiana Recount Commission ruled last year in White's favor, but a Marion County judge overturned that decision. Then, the Supreme Court said it would step in.

That is unrelated to a separate criminal case in which White was convicted earlier this month of six felony charges, including voter fraud, in Hamilton County. Because of those convictions, he was immediately removed from office, although he can appeal his conviction.

The key question now is who will replace White and take an office where the holder serves as Indiana's elections chief and oversees business registration and securities investigations.

The difference between the cases determines who will be secretary of state. If White is removed because of the felony convictions, Republican Gov. Mitch Daniels will appoint his replacement. If he's found ineligible to have been on the ballot in the first place, Vop Osili, his 2010 Democratic opponent, will be installed as secretary of state.

The Indiana Democratic Party is arguing that White should not have been a candidate in the first place. Indiana Attorney General Greg Zoeller's office isn't defending White individually, but Zoeller has said the decision should be left to the Indiana Recount Commission.

"At issue is the authority of Indiana's bipartisan Recount Commission that rendered its unanimous decision on a candidate's ballot eligibility based on the law and the facts and evidence," said Zoeller, whose office filed a brief with the Supreme Court on Wednesday.

"The county court's decision would establish a harmful precedent regarding the proper authority to review questions of candidate eligibility," he said.

ILB: Here is the Feb. 7, 2012 Order of the Supreme Court granting transfer and setting out the schedule.

Appellant's brief was due Feb. 14th (here are the briefs of both the Recount Commission and Charlie White), Appellee's brief was due Feb. 21st (here is the brief of the Ind. Democratic Party) , and Appellant's reply brief is due Feb. 24th (see elow).

The ILB will be posting all the briefs as they become available.

In the Feb. 29th argument, each side has been granted 30 minutes to present argument.

For background on all aspects of the Charlie White disputes, see this long ILB list.

[Updated Feb. 24] Here, filed Feb. 24, 2012, are the reply briefs of the Indiana Recount Commission and of Charlie White.

[Updated Feb. 27] Here, filed today, is Parker’s Reply in Support of Cross Appeal.

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Indiana Government

Vacancy on the Supreme Court 2012 - Opening questions for tomorrow's interviews

Although the ILB has been unable to confirm this with the Supreme Court press office, the ILB has independently learned that the seven semi-finalists for the Supreme Court vacancy have been asked to prepare answers for the same two opening questions as last year: (1) your biggest accomplishment, and (2) two things you'd change about the Court.

Here again is tomorrow's interview schedule.

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Ernesto Gutierrez v. State of Indiana, a 9-page opinion, Judge Baker writes:

Appellant-defendant Ernesto Gutierrez appeals his convictions for two counts of Child Molesting, a class A felony. Specifically, Gutierrez contends that his convictions must be reversed because the trial court improperly admitted vouching testimony from two of the State’s witnesses as to whether the victim was telling the truth. Gutierrez also claims that the deputy prosecutor engaged in misconduct by eliciting the improper vouching testimony and commenting about that testimony during closing argument. Concluding that the trial court erred in admitting improper vouching testimony that invaded the province of the jury and prejudiced Gutierrez’s substantial rights, we reverse and remand for a new trial. * * *

When examining the exchange between the deputy prosecutor and Hasselman, it is readily apparent that the provisions of Indiana Evidence Rule 704(b) were violated, which resulted in an invasion of the province of the jury to judge the credibility of the witnesses. As noted above, Hasselman testified that she “absolutely” believed M.L.’s testimony. And the deputy prosecutor contemporaneously inserted his own opinion that he believed M.L. Therefore, the admission of Hasselman’s testimony amounted to fundamental error.

Notwithstanding the prohibitions regarding the admission of vouching testimony, the trial court allowed such testimony to be shared with the jury. And, to compound matters, the deputy prosecutor improperly told the jury that he believed M.L.’s testimony. Thus, we are compelled to reverse Gutierrez’s convictions and order a new trial free of prohibited matters.

The judgment of the trial court is reversed and this cause is remanded for a new trial.

NFP civil opinions today (4):

In the Matter of the Adoption of M.S.T.; R.P.M.T. v. C.K. and J.P. (NFP)

Carol Showalter v. Donald Showalter (NFP)

Brent Goodman v. GMH Snyder Farms, Inc. (NFP)

Chuck W. Adams v. Mauro Chavez, M.D., Prison Health Services, Gil Kaufman, Craig Underwood, Dean Reiger (NFP)

NFP criminal opinions today (6):

LaDawn D. Johnson v. State of Indiana (NFP)

Scott W. Bishop v. State of Indiana (NFP)

James Ingram v. State of Indiana (NFP)

Philip Gregory Yeary v. State of Indiana (NFP)

Jeremy L. Hopkins v. State of Indiana (NFP)

Michael Dunfee v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Ind. App.Ct. Decisions

Courts - Relevant to Barnes? SCOTUS: "Says Police Cannot Be Sued Over Warrant"

Jesse J. Holland of the AP is reporting:

The Supreme Court said Wednesday that California police officers cannot be sued because they used a warrant that may have been defective to search a woman's house.

The high court threw out the lawsuit against Los Angeles County Sheriff's Detective Curt Messerschmidt and other police officials, who were being sued personally by Augusta Millender for the search on her house and confiscation of her shotgun.

The opinion is Messerschmidt v. Millender - see SCOTUSblog case page.

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Courts in general

Ind. Decisions - Supreme Court decides three today

In Jerrme Cartwright v. State of Indiana, an 8-page, 5-0 opinion, Justice Rucker writes:

Jerrme Cartwright was convicted of attempted battery and unlawful possession of a firearm by a serious violent felon. In a divided opinion, the Court of Appeals reversed and remanded for new trial. We granted transfer and now affirm the judgment of the trial court. * * *

In sum, Cartwright essentially argues that the State failed to meet its burden to demonstrate its strike of Bard was not motivated by discriminatory purpose. But the State had no such burden under Batson. The State was only required to come forth with race-neutral reasons for striking Bard, and it did so. It was Cartwright's burden to demonstrate that those reasons were pretextual. He has not carried his burden.

In Antwon Abbott v. State of Indiana, a 7-page, 3-2 opinion with a pro se appellant, Justice Rucker writes:
After a trial by jury thirty-year-old Antwon Leon Abbott was convicted of possession of cocaine as a Class B felony for which he was sentenced to the maximum term of twenty years. Based on the nature of the offense we revise Abbott’s sentence to twelve years. * * *

We emphasize however that Abbott’s offense was enhanced from a Class D felony – which has an advisory sentence of one and a half years, see I.C. § 35-50-2-7 – to a Class B felony because he was “in, on, or within one thousand feet (1000) of . . . school property.” I.C. § 35-48-4-6(b)(2)(i). However, but for the police officer’s choice of location in stopping the car in which Abbott was a passenger, he would have received no more than the maximum three-year sentence for his possession of less than three grams of cocaine. These circumstances compel us to conclude that although Abbott’s character does not necessarily justify a revision of his sentence, the nature of Abbott’s offense in this case renders his twenty-year maximum sentence inappropriate. We therefore grant transfer and revise Abbott’s sentence to twelve years – two years above the statutory advisory term for a Class B felony.

We remand this cause to the trial court with instructions to issue an amended sentencing order consistent with this opinion. The judgment of the trial court is otherwise affirmed.

Shepard, C.J., and Sullivan, J., concur.

David, J., dissents with separate opinion in which Dickson, J., concurs. [J. David's dissent concludes] The Court of Appeals also appropriately noted that “Abbott has ten convictions, including felony convictions for receiving stolen property, cruelty to an animal, and possession of cocaine. . . . Clearly, Abbott has not reformed his criminal behavior despite his numerous prior contacts with the criminal justice system.” For the foregoing reasons, I respectfully dissent.

In Joey Addison v. State of Indiana, a 19-page, 5-0 opinion, Justice Rucker writes:
We grant transfer in this case to explore whether and to what extent a defendant's race-based Batson claim may be reviewed on appeal where at trial the defendant failed to rebut the State's proffered race-neutral reason for striking a black venireperson. * * *

The State's mischaracterization of Turner's voir dire testimony, its failure to engage Turner in any meaningful voir dire examination to explore his alleged undue reliance on the testimony of professionals, and the comparative juror analysis, when taken collectively, leave us with the firm impression that the State's proffered explanation for striking venireperson Turner was a mere pretext based on race, making a fair trial impossible. “Peremptory challenges based on race . . . require a retrial.” Highler, 854 N.E.2d at 826.7

Conclusion. We reverse the judgment of the trial court and remand this cause for a new trial.

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: "Convicted sex offender challenges lifetime Facebook ban: Federal lawsuit seeks access to social media for sex offenders"

Recalling yesterday's ILB post on the ACLU suit filed in federal court here, here are two posts yesterday from national blogs on related litigation.

"Federal District Court Strikes Down Ban on Much Internet Activity by Registered Sex Offenders," from The Volokh Conspiracy, begins:

A Louisiana statute bans much Internet activity by registered sex offenders who had been convicted of child pornography or other sex crimes involving children (or of video voyeurism); the law, like most other laws dealing with sex offenders, includes within its coverage sex offenders who are no longer in prison or on probation. The law bans “using or accessing of social networking websites, chat rooms, and peer-to-peer networks” by such offenders, unless “the offender has permission to use or access social networking websites, chat rooms, or peer-to-peer networks from his probation or parole officer or the court of original jurisdiction.”
From Sentencing Law Blog, "Federal judge finds unconstitutional broad state law limiting sex offender internet activity."

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Indiana Courts

Ind. Gov't. - Ind. Election Commission meeting Friday [Updated]

Marathon meeting of Indiana Election Commission set for Friday in House Chambers. Will be live streamed. Here is the massive agenda.

[Updated on Feb. 23] Word is now that it won't be live-streamed; Speaker Bosma is said to have nixed the broadcasting of the public meeting.

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Indiana Government

Ind. Law - "Farmers Called to Act on Statehouse Legislation"

Gary Truitt at Hoosier Ag Today writes that the Ind. Farm Bureau is:

... seeking farmer support for legislation that would prevent cities and towns from having jurisdiction over aquifers.

The House Utilities Committee heard testimony on SB 132 (Sen. Beverly Gard, R-Greenfield & Rep. Dave Wolkins, R-Winona Lake). The bill will require the Indiana Utility Regulatory Commission to collect, compile, and publicize in the aggregate data regarding water use by water utilities in Indiana.

The controversial portion of the bill is a section that would exclude underground aquifers from the definition of “watercourse” as that term is used in several statutes that give cities and towns the authority to regulate “watercourses” ten miles outside their municipal boundaries.

A Supreme Court decision last fall
concluded that municipalities had the authority to regulate aquifers. This means that a town could require a farmer to obtain a permit to pump water from the aquifer with a well on the farmer’s property, or they could prohibit the withdrawal of water altogether. It could also set up a race among municipalities that are within ten miles of one another to claim the aquifer first.

Farm Bureau is one of the strongest voices calling for the legislative reversal of the Supreme Court’s decision to include aquifers in the definition of “watercourse.” At the hearing last Wednesday, Farm Bureau’s Justin Schneider testified in support of the bill.

The Indiana Association of Cities & Towns and several mayors testified against reversing the Supreme Court’s decision. Following a lengthy hearing, Committee Chair Jack Lutz (R-Anderson) decided not to take a vote on the bill but announced that a vote would be taken this week. Legislators are being asked by the mayors of the municipalities in their districts to vote against SB 132.

ILB: I believe the case referenced is Town of Avon v. West Central Conservancy District, summarized by the ILB here on Nov. 22, 2011.

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Indiana Law

Ind. Law - "Indiana: NRA-Backed Bills (including silencers when hunting) Continue to Move Forward"

That is the headline to this post from the NRA's Institute for Legislative Action, dated Feb. 21. Some quotes:

Today saw progress on two NRA-backed bills currently moving through the Indiana General Assembly.

The Indiana House of Representatives approved Senate Bill 315 on its third and final reading by an overwhelming bi-partisan 76 to 19 vote. SB 315, authored by state Senator Randy Head (R-18) and sponsored by state Representative Mark Messmer (R-63), would streamline the licensing and reporting process for charity gaming events, such as “Friends of NRA” banquets. Due to a technical amendment made in the House Public Policy Committee, SB 315 now returns to the Senate for concurrence.

As previously reported here, the policy changes contained in SB 315 would greatly improve the ability of “Friends of NRA” committees to comply with Indiana charitable gaming laws in a timely and less cumbersome fashion, while protecting the personal information of “Friends of NRA” volunteers.

Due to a House committee hearing cancellation, Senate Bill 243 [ILB - silencers when hunting], previously reported on here, would not have survived this week’s committee report deadline had it not been added as an amendment to House Bill 1279, authored by state Representative Sean Eberhart (R-57) and sponsored by state Senator Ryan Mishler (R-9). This amendment was offered by state Senator Travis Holdman (R-19), and the Indiana Senate voted today on second reading to add (as is) language from SB 243 into the Natural Resources Omnibus bill, HB 1279.

This language from SB 243 would allow Hoosiers to use lawfully-possessed suppressors (also referred to as silencers) on firearms for hunting. Currently, Indiana law permits use of suppressors for all shooting activities except for the taking of game. Enactment of this language would ensure that hunting is treated the same way as other shooting activities with respect to the use of suppressors, and allow hunters to reap the many benefits suppressor use provides.

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Indiana Law

Courts - "Do grandparents get visitation rights? Supreme Court declines case"

This issue comes up a lot and the ILB has many entries. Yesterday, per this long story today in the Christian Science Monitor by Warren Richey, the SCOTUS:

... declined to take up the grandparent’s appeal in a case testing when a judge can force objecting parents to permit regular visits between a grandparent and grandchildren.

The high court action allows a decision of the Alabama Supreme Court to stand. The Alabama high court had ruled in favor of the parents who opposed court-intervention in the grandparent visitation dispute. * * *

But what is less clear is how a judge is to rule when the child’s parents are opposed to such grandparent visitation.

At issue in ERG v. EHG (11-311) was whether the fundamental right of parents to decide how best to raise their children includes the authority to deny grandparents an opportunity to visit with their grandchildren.

The high court last examined the thorny issue of grandparent visitation in a 2000 case. The court sided with the parent over the grandparents, but the justices declined to identify a clear constitutional standard that could be easily applied in future cases involving visitation disputes between parents and grandparents.

Lawyers for the Alabama grandparents were hoping the Supreme Court would use their case to revisit the issue and set a brighter constitutional standard.

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Courts in general

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

IC 32-30-6, Nuisance Actions, includes IC 32-30-6-9, commonly referred to as "freedom to farm" or "right to farm" language. This law passed in 2002.

HB 1091 would add a new section 9.5 that reads:

Sec. 9.5. If a court finds that an agricultural operation that is the subject of a nuisance action was not a nuisance under section 9 of this chapter 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.
Both the Indianapolis Star and the Fort Wayne Journal Gazette have published editorials opposing the bill.

Recently, supporters have branded HB 1091 as the right-to-farm bill. Rick Callahan had this AP story yesterday - some quotes:

Activists say a bill requiring people who file frivolous lawsuits against Indiana livestock farms to pay the farms' legal fees would make people reluctant to take action, even when they have legitimate complaints about smells or waste.

The measure, which supporters call a right-to-farm bill, passed the House earlier this month on a 57-39 vote and goes before the Senate judiciary committee Wednesday for a hearing. It has strong support from the Indiana Farm Bureau and Indiana Pork Producers, but environmental groups are opposed.

Rep. Bill Friend, R-Macy, said he sponsored the bill because farms need protection from unfounded, groundless lawsuits filed just to interfere with their business. While livestock farms have been the subject of most nuisance suits, the bill would apply to all farms in the state.

Friend rejected the idea that it would deter residents with legitimate complaints from suing a livestock or grain farm.

"All this bill says is that actions have consequences and bring us your serious issues so the legal system can function," Friend said. "The only way this even has an effect is if the court says this was groundless or frivolous and you wasted the court's time."

Kim Ferraro, water policy director for the Hoosier Environmental Council, said court records indicate only 10 nuisance lawsuits have been filed in the past decade against agricultural operations in Indiana, including large factory-style livestock farms. Not one has been dismissed as frivolous, she said.

"Where are these frivolous lawsuits they're so concerned about?" Ferraro asked. * * *

If the bill becomes law, Ferraro said rural residents who have legitimate reasons for suing such farms over manure runoff or other problems may decide not to because they're afraid a judge would declare their lawsuits frivolous and saddle them with thousands of dollars in attorney fees.

"The idea is to intimidate, to make somebody be worried that they're going to be on the hook for paying for a defendant's attorney fees and costs," Ferraro said. "It's a chilling effect."

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Environment | Indiana Law

Ind. Decisions - "Appeals court rules online commenters not protected news sources"

Yesterday's COA decision in 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. is the subject of several news stories today.

Dan Carden reports in the NWI Times:

INDIANAPOLIS | The identities of anonymous commenters on newspaper websites are not protected under Indiana's journalist Shield Law, and newspapers may be compelled to disclose them under certain circumstances, the Indiana Court of Appeals ruled Tuesday.

In a 3-0 decision, the appeals court said protection for sources under the Shield Law, which exempts a newsperson from divulging a source even under court order, does not apply to online commenters because their comments are only posted after the newsgathering process is complete and a story published. * * *

The Star claimed "DownWithTheColts" is a protected source and does not have to provide Miller with the identity.

The court disagreed with the Star, saying if the online comment led to further reporting there would be justification for protecting that commenter as a source, but that didn't happen in this case.

"The Star merely provided a place for 'DownWithTheColts' to place his comment similar to if The Star had placed a bulletin board outside of its office building for anyone to tack an announcement," wrote Judge Nancy Vaidik, a Porter County native. "For this reason alone, we determine that the anonymous commenter was not a source as envisioned by our Shield Law."

In addition, the court said the Shield Law expects reporters and editors will weigh the credibility of news sources before deciding whether to disseminate their information to the public.

No one at The Star applied any editorial judgment to the comment from "DownWithTheColts," which further distinguishes it from a legitimate, protected news source, Vaidik said.

In its 33-page decision, the appeals court said it's necessary to balance the benefits of anonymous speech while permitting action against defamatory speech, which is not protected by the Constitution.

To that end, the court adopted a recommendation by The Times and other media companies and said alleged victims of anonymous defamatory speech who can show evidence of defamation that is not dependent on the commenter's identity can obtain a court order requiring a newspaper disclose the identity.

A side-bar to the story sets out the NWI Times comment policy:
Commenting on nwi.com

The Times Media Co. requires users register to comment on stories on nwi.com using a valid email address. However, users do not need to submit their name or other identifying information.

Comments are not premoderated, but registered users can use a "report abuse" button to inform online staff of comments that violate standards. Improper comments will be taken down, and user accounts can be banned for extreme or repeated violations.

The Indianapolis Star headline, to a story by Bruce C. Smith in its business section: "Indiana appeals court reverses order to identify online commenter: The Star, couple suing to learn identities see positives in ruling returning issue to lower court." Some quotes:
Both sides in a lawsuit over disclosure of the identity of anonymous posters on news media websites were left partially satisfied with an Indiana Court of Appeals decision released Tuesday. * * *

In a 33-page ruling, the appeals court reversed the order of Marion Superior Court Judge Jamie A. Maddox, who had said the newspaper should disclose the identity of the commenter on its website.

The appeals court ordered the issue back to Marion Superior Court, where Judge Michael Keele is to hold a hearing to consider whether the Millers can show they were damaged by the comments.

Keele is to use a new legal standard partially borrowed by the appeals court from a 2001 New Jersey case involving Dendrite International against an anonymous poster on a Yahoo message board.

The new legal test for whether posters must be identified attempts to balance the right of free speech with the damage caused by an alleged defamation. The new standard does not require the Millers to prove malice was behind the accusations.

Here is a long list of earlier ILB entries on the case. Note this Nov. 29, 2011 ILB entry, re the Indianapolis Star changing its comment policy: "As of Tuesday, Nov. 27th, 2011, comments on Star stories will no longer be anonymous. Indeed, the only way to submit comments will be through your Facebook account."

Posted by Marcia Oddi on Wednesday, February 22, 2012
Posted to Ind. App.Ct. Decisions

Tuesday, February 21, 2012

Ind. Courts - Chief Justice Shepard honored in House

ILB sometime-stringer Ed Feigenabaum sends this note:

Are you watching the CJ tribute on the floor? Rep. Truitt just revealed that the CJ was delivered on December 24, 1946 by Truitt's grandfather, a family practice doc in Lafayette -- the same doc who delivered your man, Brian Lamb!*

Truitt gave both a copy of his grandfather's record of the birth. Speaker Bosma made a good joke about ignoring HIPAA violations!

_______
*ILB disclosure, C-SPAN-founder Brian Lamb is my personal hero, despite his being a Purdue grad.

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Indiana Courts

Vacancy on Supreme Court - More on: Where are the Women Justices?

Thanks to David Pippen, former general counsel to Governor Daniels, who has accepted the ILB's invitation to address the issues raised in this morning's ILB entry:

Diversity is an issue which is and should be considered. As you noted yesterday, gender diversity was openly discussed with one applicant in the first round of this vacancy. The issue does not, however, trump all the other important considerations which go into choosing the “most qualified” jurists – however that is determined by each individual.

The JNC and Governor Daniels have encouraged as many qualified persons to apply for the Court as could be recruited. We need many applicants to have a diversity of qualities brought to the applicant pool as no single issue or quality has gotten a candidate through interviews. A composite of qualities for each applicant must be reviewed to determine/guess who would best serve the State.

Also, it really isn’t fair to reduce the applicants to simple numbers of male/female as those I have seen represent the profession well and are accomplished judges and lawyers regardless of whether they are male or female. When choosing among those accomplished applicants, it requires consideration of much more than simply gender to preserve the quality of Indiana’s judiciary. That said, the governor has appointed two women and two men (Judges Brown and Wentworth and Judge Bradford and Justice David) as the “most qualified” applicants from the panels presented to him by the JNC.

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Vacancy on Supreme Court 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 Tuesday, February 21, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Elkhart judge reverses himself on fine against bicyclist"

This story by South Bend Tribune columnist Nancy J. Sulok was first published in 2002, and republished today. It begins:

ELKHART -- Elkhart City Judge Charles Grodnik gasped in dismay.

I had just pointed out to him that he had made a mistake in a ruling last month involving a man who had passed a school bus -- on a bicycle.

The good judge had started out by citing the Indiana law that prohibits a vehicle from passing a stopped school bus. But I countered by citing another part of the law that specifically excludes "devices moved by human power'' from the definition of "vehicle.'

"Well, gracious, goodness me,'' the judge exclaimed. "I'm going to make a new finding on this case."

That should be good news for Elkhart resident Steven Carey, 52, the man who got the ticket and paid a $100 fine last month for riding his bike past the stopped bus.

Grodnik reversed himself Monday after I pointed out that it's not illegal to do so.

Today, ten years later, the headline to the new story is "Police ID bicyclist who was killed Sunday."

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Indiana Courts

Vacancy on Supreme Court - Where are the Women Justices?

Maureen Hayden reported yesterday for CNHI in a story headed "Daniels may face gender issue again with Supreme Court pick: Three of seven semifinalists are women, but governor picked a man last time." Some quotes:

INDIANAPOLIS — For the second time in less than a year, Gov. Mitch Daniels may have the chance to consider appointing a woman to the state’s all-male top court.

But to do so, the three women still in the running for the seat must get through another round of interviews with a judicial nominating committee charged with vetting candidates for the Indiana Supreme Court.

On Thursday, the seven-member commission begins its second round of interviews with the seven semifinalists to fill the seat to be vacated in March by retiring Chief Justice Randall Shepard.

Gender isn’t on the list of criteria that state statute requires the nominating commission to consider when assessing those candidates.

But it may still be factor. Of the 106 justices who’ve sat on the Indiana Supreme Court, only one has been a woman.

“There’s some catching up to do,” said Joel Schumm, a longtime court observer and a professor at Indiana University’s Robert H. McKinney School of Law in Indianapolis.

How much pressure either the commission or the governor feels to “catch up” that history remains to be seen. The commission must pick three names to send to the governor, who filled the last court opening with a man. Daniels picked former Boone County judge Steven David from a field of three that included one woman.

At the time, Daniels said gender could be used as “tiebreaker” if two judicial candidates were equal.

Brian Howey, a political analyst and publisher of Howey Politics Indiana, said he doubts Daniels will see things differently this time.

“I don’t think he feels a need to make a decision based on gender,” Howey said.

Schumm, who sat through the first round of applicant interviews in what’s becoming an increasingly public vetting process, said the seven semifinalists had impressive legal credentials.

“It’s quite possible the three names could all be men,” Schumm said.

Shepard chairs the commission that will be picking the person to fill his seat. He’s said in the past that women, including some of his own family members, have pushed him to help change the gender make-up of the court. But he’s also said the commission’s first duty is to identify the most highly qualified candidates for the job.

ILB observations:

Two years ago I wrote that Justice Boehm's retirement had created the first opportunity in (what was then) nearly eleven years for a woman to become a member of the Court. Indiana was then one of only two states with no women on their Supreme Courts.

There was anticipation in the air in the summer of 2010. Of the applications submitted, a majority, 19 of 34, were women, each of them highly qualified.

But when the list was reduced to 9, 5 of the 9 were male. And only one woman made the final cut, the three names submitted to the Governor.

The Governor ultimately named Steven H. David to the Court, saying: "I might have used (gender diversity) as a tie-breaker. But this was not a tie ... My task was to find the best person on the merits, and I’m sure I did. Now the state is going to benefit from that for years to come."

So this time I would be very surprised to see Gov. Daniels appoint a woman to the Supreme Court. I suspect the Governor's comment in 2010 dissuaded many women from applying for this vacancy, and few this year are even discussing the importance of appointing a woman to the Court. Publicly, the Governor has done nothing since 2010 to express any discontent that there are no women on the Court or to signal his interest in remedying that.

Rather, I have heard comments like this, from a Republican attorney, who says he doesn't think that the Governor will care at all about appointing a woman if she is not "the best" of the three individuals the nominating commission sends to him, just like last time. He says the Governor is blind, in a good way, to "quota"-type stuff, and more concerned with getting the best people in appropriate posts.

That might sound good at first reading. However, I have been hearing that same justification used all my life -- "sure a woman will be appointed, if one is 'qualified.'" But look again at the phrases I've highlighted: "identify the most highly qualified candidates"; "find the best person on the merits"; "getting the best people." What do they mean, really?

What are the criteria? IC 33-27-3-2 provides in part:

Sec. 2. (a) The judicial nominating commission shall submit to the governor, from those names the commission considers for a vacancy, the names of only the three (3) most highly qualified candidates. In determining which candidates are most highly qualified each commission member shall evaluate each candidate, in writing, on the following considerations:
(1) Legal education, including law schools attended and education after law school, and any academic honors and awards achieved.

(2) Legal writings, including legislative draftings, legal briefs, and contributions to legal journals and publications.

(3) Reputation in the practice of law, as evaluated by attorneys and judges with whom the candidate has had professional contact, and the type of legal practice, including experience and reputation as a trial lawyer or trial judge.

(4) Physical condition, including general health, stamina, vigor, and age.

(5) Financial interests, including any interest that might conflict with the performance of judicial responsibilities.

(6) Activities in public service, including writings and speeches concerning public affairs and contemporary problems, and efforts and achievements in improving the administration of justice.

(7) Any other pertinent information that the commission feels is important in selecting the most highly qualified individuals for judicial office. * * *

(f) The commission shall submit with the list of three (3) nominees to the governor its written evaluation of each nominee, based on the considerations set forth in subsection (a). The list of names submitted to the governor and the written evaluation of each nominee shall be publicly disclosed by the commission.
It looks to me like gender is a consideration to be taken into account for finding "the most highly qualified" under the current evaluation criteria. When half of the population and a third of the practicing bar are women, gender should be “pertinent” to filling a vacancy on a five-member all-male Court. Political party affiliation, which is not listed in the statute, has certainly taken on a prominent role in merit appointments.

And if it isn't clear from the current law that gender should be taken into account in identifying the best candidates to fill a particular vacancy on the Court, perhaps the law should be amended. Consider the merit selection panel in Lake County, for example, where the General Assembly has specifically required, at IC 33-33-45-35(5):

(5) In determining which eligible candidates are recommended to the governor, the commission shall consider that racial and gender diversity enhances the quality of the judiciary.
I’ve not heard anyone asking for a “quota” that women fill a certain number of seats on the Supreme Court. But the grade school girls who visit the Statehouse and see the pictures on the Courtroom wall, and the female law students who watch an oral argument in this, the 21st century, still can only wonder, "Where are the women justices?"

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Law - "Barnes" bill may face changes in House (or may be dead)

"Indiana bill on right to resist police faces overhaul" is the headline to a long story today by Tom Davies of the AP. Some quotes:

INDIANAPOLIS - A proposal aimed at assuring Indiana residents they sometimes can resist police officers entering their homes could see a key change sought by law enforcement groups, the House sponsor said today.

Prosecutor and police groups have objected to a list of limited situations of when officers can legally enter a private home, which was included in the bill the Senate approved 45-5 last month. * * *

Republican Rep. Jud McMillin of Brookville, who is sponsoring the bill, said he is working with law enforcement officials on a new version to be considered by a House committee on Wednesday.

Changes from what the Senate approved would specify that residents are protected by the state's self-defense law if they resist police officers who are acting illegally, McMillin said.

"We also want to make sure that it does not create the incentive for people to think that it's OK to go out and use force against law enforcement officers," he said.

The Senate version 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 in the Senate, said he worried the changes would leave too much potential gray area for both residents and police officers about what they could do.

ILB: The bill is SB 1. It is assigned, in the House, to Courts and Criminal Code Committee. That Committee currently is not scheduled for a meeting this week, the final week for committee meetings.

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Indiana Law

Ind. Courts - Justice Rucker's son runs for Ohio Supreme Court

From a story by Julie Carr Smyth in the Dayton Daily News:

COLUMBUS, Ohio — Two experienced judges from far-flung corners of the state are facing off in the Democratic primary for a chance at unseating Ohio Supreme Court Justice Robert Cupp this fall. * * *

Hamilton County Municipal Court Judge Fanon A. Rucker, the son of an Indiana Supreme Court justice, is making his first attempt at the seat. Then-Gov. Ted Strickland appointed him to the bench in 2007 and he was subsequently elected.

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Indiana Courts

Ind. Courts - "Convicted sex offender challenges lifetime Facebook ban: Federal lawsuit seeks access to social media for sex offenders"

Russ McQuaid has the Fox59 story here. Some quotes (there is also a video):

An Indianapolis sex offender has filed a federal lawsuit challenging his lifetime ban from social media sites like Facebook.

The offender, named anonymously as John Doe, was convicted of two counts of child exploitation in 2002. He was incarcerated through 2003 and released in 2004.

The suit claims John Doe is suffering socially and professionally because of the ban.

"He is a businessperson and as a businessperson he would like to participate in the business networks that allow you to get your name out and network with other people," said Ken Falk, American Civil Liberties Union. "Is that person going to be bared [ILB - sic. An alert reader noticed this] from communicating in the 21st Century? That seems to be a significant price to pay to violate the First Amendment." * * *

On Tuesday, a federal magistrate will hear a motion for John Doe to keep his identity secret while fighting the First Amendment access case. The suit also seeks class action status to represent more than 1,100 registered sex offenders in Marion County.

Here is a copy of the 9-page complaint, filed Jan. 17, 2012, which begins:
Indiana Code § 35-42-4-12(e) makes it a crime for celiain sex offenders required to register on Indiana's sex and violent offender registry to knowingly or intentionally use a social networking web site or an instant messaging or chat room program if persons under the age of 18 have access to, or can use, the site or program. To the extent that the sex offenders are not under any supervised release, but are free from parole, probation, or similar restrictions, the statute is unconstitutional as violating the First Amendment. John Doe, a sex offender was released from probation in 2004. However, he is required to register as a sex offender for life and is subject to the prohibition and penalties of Indiana Code § 3S-42-4-12(e) for his entire life. He seeks appropriate injunctive and declaratory relief on his own behalf and on behalf of a class of those similarly situated.

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Indiana Courts

Stage Collapse - "Sugarland Responds To State Fair Collapse Lawsuit"

WRTV6 reported in this story last evening that:

FISHERS, Ind. -- Sugarland is responding to claims of negligence in a lawsuit filed on behalf of 51 people connected to the Indiana State Fair collapse.
The story includes a link to the 40-page response. This ILB entry from Nov. 22, 2011 includes links to the original complaint.

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Stage Collapse

Monday, February 20, 2012

Ind. Courts - Even more on "Indiana Supreme Court Creates Task Force to Evaluate Marion County Small Claims Courts"

Updating this ILB entry from earlier today Carrie Ritchie of the IndyStar has just tweeted:

The small claims court story really hit a nerve with readers. I've never gotten this many phone calls on one story.
The ILB hopes reporter Richie will be attending the three hearings scheduled for this week and next by the Baker/Barteau Task Force, and "live tweeting", as she did so well at the Charlie Wilson White trial!

Posted by Marcia Oddi on Monday, February 20, 2012
Posted to Indiana Courts

Vacancy on Supreme Court 2012 - More on: Addressing the elephants in the room

Updating this morning's ILB entry, Ted A. Waggoner, Peterson Waggoner & Perkins, LLP in Rochester sent a note shortly after the entry was posted, titling it "One More Elephant." Quoted with permission:

Great reporting on the elephants.

Another elephant that still needs to be addressed by all seven candidates is the diversity question.

Is there a legitimacy issue raised when a court consistently lacks any female members? What if it lacked black and Hispanic members for long periods of time? How important is it for a woman to get this seat now?

With the quality of many of the candidates, is (or should it be) gender a trump card for the commission? What do the candidates say?

I agree with Ted that this is a good question for the candidates. As Prof. Schumm wrote in his notes about the Feb. 9th interview of Marion Superior Court Cynthia Ayers:
When asked if diversity is important on state supreme courts by Mr. Winningham, Judge Ayers said it “certainly” was. People who come before the Court should know that justices have had some of their experiences. Mr. McCashland asked if she would be intimidated by being the only woman with four men; she responded she would not and thought she would work very well with them. Mr. McCashland observed that he and his wife “think very differently”—and Ms. Northernor agreed “absolutely.” [Schumm - This interview included the most express and detailed discussion of gender diversity in any interview this year or in 2010. In other interviews gender has, at most, arisen in a subtle way.]
Judge Ayers was not selected for the second round of interviews.

BTW, the ILB is planning an entry before Thursday dealing directly with the gender issue.

Another reader writes in part about this morning's ILB entry:

Are these questions not being asked? They certainly should be. Or are they just not being asked in a public interview? You have very appropriately raised these examples of questions that should be asked. How will we ever know whether they are asked, and what answers are given.
The ILB's understanding is that the Judicial Nominating Commission interviews the applicants only at the open meetings the ILB has been reporting. Per the announcements:
After the public interviews and Commission deliberations in an executive session, the Commission will publically vote to send the three most qualified names to Governor Mitch Daniels.
The only information to the contrary I have seen is a sentence near the end of the Indiana Supreme Court Application Instructions:
10. The Commission will consider on behalf of each applicant a reasonable number of letters of recommendation. Letters of recommendation may be sent to the Commission’s office, and will be forwarded to each Commission member. (Judges and other judicial officers are not prohibited under the Code of Judicial Conduct from writing on behalf of candidates on the basis of personal knowledge of the candidates’ qualifications.) Letters sent to individual Commission members will be distributed to all other members. Most Commission members prefer to not meet with candidates except during the interviews. Letters of recommendation for the first round must be received by January 27, 2012. If a candidate is selected for the second round of interviews, the candidate may submit additional letters of recommendation, but those letters must be received by February 17, 2012 to be considered by the Commission.
The Governor has traditionallyconducted his interviews in private.

Posted by Marcia Oddi on Monday, February 20, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - "Marion County today becomes the final county in the state to move to the so-called "hybrid" welfare eligibility system."

Mary Beth Schneider has a long, comprehensive story in today's Indianapolis Star headed With Marion County on board, Indiana's welfare system is now fully 'hybrid': County is last to switch to combination of personal contact, online and phone options."

Posted by Marcia Oddi on Monday, February 20, 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 (0):

Curtis Cole v. Review Board of the Indiana Dept. of Workforce Development, and Owen County (NFP)

Term. of Parent-Child Rel. of N.T.; D.T. (Father) and E.L. (Mother) v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (0):

Patricia Claywell v. State of Indiana (NFP)

Matthew Weitzel v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 20, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending February 17, 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, February 17, 2012. It is two pages (and 25 cases) long.

No transfers were granted last week. A notable denial was:

Anna Quimby v. Becovic Management, a rare dissent with separate opinion in 3-2 Supreme Court transfer denial, which the ILB wrote about on Feb. 14th, does not appear on the list.

Posted by Marcia Oddi on Monday, February 20, 2012
Posted to Indiana Transfer Lists

Vacancy on Supreme Court 2012 - Addressing the elephants in the room

This Thursday, Feb. 17th, the Judicial Nominating Commission will hold one-half hour interviews with each of the seven semifinalists.

Looking over the summaries of the interviews from 2010 and also the 15 held earlier this month, it is notable that seldom have applicants been pressed on potential negatives or weaknesses, even when they are a matter of public record.

Example #1: In July of 2010, then-applicant Curtis Shirley was not asked about his "conditional agreement for discipline" then pending before the Supreme Court, although Mr. Shirley had disclosed the existence of the matter in his application. (This Aug. 9, 2010 ILB entry links to the order, filed Aug. 5, 2010: In the Matter of Curtis E. Shirley, where the Court suspended Respondent from the practice of law for a period of 30 days, beginning September 17, 2010.)

Example #2. This time around, many people particularly in Marion County remember the political ad used by Mark Massa in the Marion County prosecutor race. Massa asks about Terry Curry in a still-available (as of this writing) campaign ad uploaded to YouTube by markmassa4prosecutor on Oct 14, 2010:

"Can Terry Curry really get tough with child predators when he has no problem defending one?"

Paid for by Mark Massa for Prosecutor. http://www.youtube.com/watch?v=NLG46_m_vr4

Use of such an ad just a year earlier by an applicant for the State's highest court, which considers hundreds of criminal cases each year, may occasion questions such as:
How can you be fair and impartial to defendants convicted of molesting children when your prosecutor ad faulted Terry Curry for trying to set a child molestor free?

Your ad states about Curry's defense: "Thankfully Terry Curry failed." Does this mean a Justice Massa would never reverse a conviction or reduce a sentence for child molesting?

Do you continue to hold attorneys who represent alleged child molesters in low regard? How involved were you in the ad?

TV stories about the ad are still available at WTHR and at TheIndyChannel, as is an Oct. 26, 2010 letter to the Star from retired Assistant U.S. Attorney Donna Eide, headed "Despite ad's claim, lawyers must follow code of conduct."

Example #3. Another "elephant in the room," although not nearly so recent, is a decision by then-Marion County Judge Cale Bradford. A May 26, 2005 Indianapolis Star story about it is headed "Judge: Parents can't teach pagan beliefs: Father appeals order in divorce decree that prevents couple from exposing son to Wicca. The story begins:

An Indianapolis father is appealing a Marion County judge's unusual order that prohibits him and his ex-wife from exposing their child to "non-mainstream religious beliefs and rituals."

The parents practice Wicca, a contemporary pagan religion that emphasizes a balance in nature and reverence for the earth.

Cale J. Bradford, chief judge of the Marion Superior Court, kept the unusual provision in the couple's divorce decree last year over their fierce objections, court records show. The order does not define a mainstream religion.

The Court of Appeals opinion in Thomas E. Jones, Jr. v. Tammy U. Jones (8/17/05) ordered the provision to be stricken from the decree, finding that this involved not a dispute between the divorcing parents over religion, but rather:
[W]hether the trial court lacked authority to order that divorcing parents, who are practicing Wiccans, take steps to shelter their child from involvement in and observation of “these non-mainstream religious beliefs and rituals.”
The questions here might relate to issues about freedom of religion and fairness to litigants such as Wiccans, who may be held in low societal regard by some people.

Example #4. This is a more difficult category. The previous examples were matters in the public domain and can form a basis for important and fair questions by the Commission. But there also may be rumors that can weigh down a candidate.

Presumably the Commission has been calling references or hearing from others, some of whom may mention potential negatives.

Will candidates be given an opportunity to respond to those things, which often may be easily put to rest, or will it more comfortable for the Commission not to ask ... and simply not advance the applicant?

Posted by Marcia Oddi on Monday, February 20, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - Still more on "Indiana Supreme Court Creates Task Force to Evaluate Marion County Small Claims Courts"

Updating ILB entries from Feb. 14th and 16th, and particularly this July 18, 2011 ILB entry quoting a must-read WSJ story, Carrie Ritchie of the Indianapolis Star has a story today on the upcoming Task Force review. A few quotes:

Each of Marion County's nine townships has a small-claims court, and the townships pay to run them. Most of the cases they handle are debt collection or disputes between landlords and tenants. In Indiana's 91 other counties, those cases go through superior and circuit courts.

The small-claims courts, intended to resolve cases efficiently, have looser rules and a more relaxed atmosphere.

Some say that leads to problems.

In attorney Chris Jackson's view, the system is "a travesty to justice." People often represent themselves and are unsure of their rights, said Jackson, who defends people in mortgage and debt collection cases.

It's also unclear which people in the courtroom are court employees and which are attorneys for debt-collection agencies. Some of the courts allow attorneys for debt-collection agencies to use office space, she said.

"It's crazy," Jackson said. "People come in and talk to attorneys for the debt collector."

Debt collectors try to talk defendants into settling, even if there is insufficient evidence to show they owe money, she said.

And the debt collectors can be convincing. * * *

Warren Township small-claims court Judge Garland Graves said he asks court employees to make sure defendants know their rights, including their right to go before a judge.

The courts also need to prevent an atmosphere in which attorneys for debt collectors and other plaintiffs are "part of the judicial furniture," said Marion Circuit Judge Louis Rosenberg, who is an adviser to the small-claims court judges.

One way to do that, he said, is to make sure that public space within the courts is just that -- public. Attorneys for plaintiffs shouldn't monopolize consultation rooms or office space, he said.

Rosenberg has been meeting with the small-claims court judges to find other strategies.

They have put together a brochure that explains defendants' rights and responsibilities, which they hope will help people who represent themselves feel more confident in court. The brochure tells defendants they have a right to take their case to the judge and can request a change of venue if they think the court is biased or too far from their home, Rosenberg said.

Also noteworthy this morning is a post from Ogden on Politics headed "Collection Law Firms Troll Court Files Looking for Cases Where Judgments are Not Shown as Satisfied; Small Claims Court Litigants are Particularly Vulnerable to Questionable Practice." A quote:
The fact is in small claims courts, debtors, often representing themselves, do not know the importance of filing paperwork with the court to show the judgment satisfied. That is usually left up to the creditor's attorney who doesn't really have an incentive to do that. The failure to file that satisfaction of judgment paperwork though leaves open the possibility that a collection law firm, years later, will look at that file and go after that debtor yet again. Given the advantages collection attorneys have in Marion County Small Claims courts, one should not bet that that attempt won't be successful. Small claims court judges need to insist that final paperwork is done in these collection cases and thatsatisfaction of judgments" are noted in the court files so that the debtors are not made the target of collection efforts years later by attorneys trolling for work.

Posted by Marcia Oddi on Monday, February 20, 2012
Posted to Indiana Courts

Ind. Gov't. - "Study: Northern Indiana corruption not so bad "

Gotta love that headline! Teresa Auch Schultz has the story today in the Gary Post-Tribune. Some quotes from the long story:

Lake County doesn’t have a reputation of corrupt political officials for nothing. * * *

But a study by the University of Illinois at Chicago shows that as corrupt as some people think politics in the U.S. District of Northern Indiana are, they actually aren’t that bad.

Northern Indiana actually registered hardly a blip in the study, titled “Chicago and Illinois, Leading the Pack in Corruption.”

It focused mostly on how Illinois ranks high in the pure number and per capita rate of convicted corrupt public officials since 1976 and also discusses in detail the many political criminals from states such as California, Louisiana, New Jersey and Texas. In fact, the study includes 35 years worth of information for only the top 15 federal court districts with the most convictions of corrupt public officials. Northern Indiana did not crack the list.

Posted by Marcia Oddi on Monday, February 20, 2012
Posted to Indiana Government

Ind. Law - More on "House bill chills students’ rights"

Updating this long ILB entry from Feb. 18th, the Indianapolis Star has an editorial today about the same bill, HB 1169, headed "Good intentions, bad bill."

Posted by Marcia Oddi on Monday, February 20, 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? But first, please read about supporting the ILB.

From Sunday, February 19, 2012:

From Saturday, February 18, 2012:

Posted by Marcia Oddi on Monday, February 20, 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 2/20/12):

Friday, February 24th

Next week's oral arguments before the Supreme Court (week of 2/27/12):

Wednesday, February 29th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/20/12):

Tuesday, February 21st

Next week's oral arguments before the Court of Appeals (week of 2/27/12):

Monday, February 27th

Wednesday, February 29th

Friday, March 2nd

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, February 20, 2012
Posted to Upcoming Oral Arguments

Sunday, February 19, 2012

Ind. Courts - More on "Proposed changes to the Parenting Time Guidelines available for review"

Updating this ILB entry from Feb. 16th, a story today in the Evansville Courier & Press by Mark Wilson provides some depth. The headline: "Indiana is revising guidelines for parents' 'visitation' rights: To emphasize importance of both parents' roles in children's lives."

Posted by Marcia Oddi on Sunday, February 19, 2012
Posted to Indiana Courts

Ind. Gov't. - Once elected, do county officers have to do more than pick up their paychecks?

Do they even have to live in the county, state, or country? That is the situation addressed in this story by Vivian Sade in the Feb. 18th Fort Wayne Journal Gazette. A few quotes from the long story:

Whitley County Assessor Angela Adams Heath has notified county officials she will be out of the country from May through October, although she would continue to draw her annual salary of $42,682.

Adams Heath, who was re-elected in 2010 to her second term as assessor, recently married a man who lives in Canada. According to her voice mail, she is currently on vacation until Feb. 27.

Adams Heath has also asked for another full-time staff member for her office. She said Friday she planned to resign after reassessment is finished in May 2013.

“I think my plan – taking off from May through October and then coming back and finishing up the reassessment and resigning in May of 2013 – would work to everyone’s benefit,” she said. “I know I’m hurting the county, but I’m trying to fulfill my obligations.”

According to the story, the law does not address such a situation:
Don Amber, chairman of the Whitley County commissioners, has also become familiar with the law in recent weeks.

“Unfortunately for taxpayers, once a person is elected, that person can hold office for one day and not have to show up the rest of the year,” Amber said. “It’s a travesty.”

He said he was pleased that Adams Heath came to the county with her request. Adams Heath said she told the commissioners she would give up her pay while on leave, “but that option is not there with the Indiana law.”

State Sen. Jim Banks, R-Columbia City, said the situation was outrageous enough to spur him to investigate further.

“It’s a fine line,” Banks said. “An elected officer is different from an employee, but taxpayers expect them to be present and do the job they were elected to do.”

Posted by Marcia Oddi on Sunday, February 19, 2012
Posted to Indiana Government

Ind. Gov't. - "DCS changes set stage for wrangling over options, control"

Virginia Black and Mary Kate Malone have another long story this Sunday in the South Bend Tribune shedding light on the Indiana Department of Child Services (DCS). If my count is right, this is the third Sunday in a row. The story begins:

Indiana’s Department of Child Services has taken control of the state’s money for services to help children, while strengthening its emphasis on keeping at-risk children with their parents whenever possible.

As a result, many of those who work in the child protection system decry what they describe as a dangerous trend toward leaving children at home, and an ill-disguised effort to merely cut costs. DCS counters that those critics represent the very organizations that gain from historical overspending on services outside the home.

Meanwhile, local juvenile judges — who have no personal financial stake in decisions affecting the children whose fates are decided in their courtrooms — say new DCS policies are robbing them of the ability to tailor options to best help the children in their communities.

From near the end of the long story:
An unfortunate fallout of DCS changes has been a restriction on juvenile judges, who are tasked with the final say on a child’s case yet whose hands are often tied by DCS money restrictions, [Elkhart County Juvenile Magistrate Deborah Domine] says, noting that other juvenile judges are worried, too.

St. Joseph Probate Judge Peter Nemeth has publicly tangled with DCS’s Payne over the years, most notably over the issue of placing St. Joseph County children in out-of-state facilities.

Nemeth, who recently announced that he will not seek re-election to his seat in the fall, pulls no punches in discussing what he calls a “top-down, one-size-fits-all Soviet command system.”

“Basically, they want the courts to be an adjunct of the DCS, not an independent, separate branch of government,” Nemeth contends.

DCS has banned the option of sending children to out-of-state facilities and put into place criteria for residential treatment facilities. A judge can still order treatments that are not covered by DCS contract, Nemeth and Domine explain, but county budgets no longer cover children’s services, so other means of paying for those services must be found.

Both judges say the process stymies communities from devising new or creative programs for children, such as the alternative school The Crossing in Elkhart (which was eventually able to stay open with private money) and a recent St. Joseph County attempt for a program for the Juvenile Justice Center, which died because DCS refused to license it.

Nemeth says the belief that in-home services will cure most of children’s problems is “hooey.”

“It’s not true,” he says. “It may be true in certain cases, but you can’t say across the board (more intensive programs) don’t work, because I know they do work. I see it in court.”

Nemeth says that before, his staff would inspect all of the facilities they considered for children, adding a clause to contracts that if the program was not successful, money would be returned or the child would be re-treated for free.

“What I wanted to accomplish with our warranty, ‘Just don’t take a child for the money,’ ” the judge says. “It was a way of trying to impress upon the placement, ‘Don’t take kids just to be taking them; take them because you think you can successfully treat them.’ ”

Nemeth contends that before, nobody was actually making certain that the programs were the best available, and today, the state still only looks at cost.

But DCS spokeswoman Ann Houseworth says it’s better for families if children are placed closer to their homes, and that state officials have been working on a plan since the state took over the budget.

“It was only then that there was the opportunity to evaluate on a statewide basis the cost, effectiveness, and therefore outcomes of those facilities. In fact, it was virtually impossible to compare outcomes and results from one residential treatment facility to another,” Houseworth wrote in an e-mailed statement.

“Since 2009, DCS has been working to develop a methodology for determining outcome measures and gauge comparatively the success of programs,” she wrote. “DCS is almost in the position of having developed very detailed outcomes that will be tabulated and used prospectively when making decisions based upon those results.”

Magistrate Domine says local courts are in a better position to look at each case individually, and that all involved should be heard.

“I think we all recognize there needs to be changes in these economic times,” she says, “but we want to be part of the decision. We bring a lot to the table.

“I think judges have been painted as the bad guys in all of this, and that’s why DCS got all the control,” Domine says. “Too often kids and issues involving kids get the short stick.”

The Family and Children Center’s [Bruce] Greenberg says that paperwork is growing, agencies will have to cease more programs, and fewer children will end up with the treatment they need.

“Dr. [sic.] Payne would say that money is never a consideration,” says Greenberg, who adds, “I’d say we look at that with a cynical eye.”

For background, start with this ILB entry from last Sunday, Feb. 12th, headed "Indianapolis Star and South Bend Tribune investigate child abuse reporting and its followup."

Posted by Marcia Oddi on Sunday, February 19, 2012
Posted to Indiana Government

Environment - "IDEM cites I-69 project for erosion issues "

A number of papers have this AP story this weekend.

Posted by Marcia Oddi on Sunday, February 19, 2012
Posted to Environment

Ind. Law - Legal sex offender clusters in Indianapolis eastside motel and downtown apartment buildings

The first time the ILB wrote about "sex offender clusters" was in this Jan. 8, 2012 entry headed "Efforts to limit areas where convicted sex offenders can live have resulted in concentrating them in locations like the Northway mobile home park," citing an editorial and story in the Fort Wayne Journal Gazette.

Today Alex Campbell of the Indianapolis Star has a lengthy, front-page, Sunday story, plus companion stories that cover several inside pages.

The lead story is headed "Motel home to city’s largest sex offender cluster." Some quotes from the lengthy article:

The King’s Inn, a $29-to-$39-a-night motel on the Eastside, serves as a last resort for sex offenders on parole who otherwise have nowhere else to go. Under a program called DOC Assist, the Department of Corrections pays rent for the offenders for a few weeks or months, theoretically until they can support themselves.

The result is that the King’s Inn is home to the largest concentration of sex offenders in Marion County — outside of the jail.

According to the county’s online registry — which an Indianapolis Star review has found to be out of date in a number of places — 61 registered sex offenders call the King’s Inn their home.

Haley says the actual number fluctuates, but is generally about 30.

The King’s Inn might be the largest concentration, but it’s far from the only one.

The Star’s analysis of the registry — based on records culled from a single day in January — found that there are at least 17 city blocks in Indianapolis where five or more sex offenders live. At least eight specific addresses have 10 or more offenders listed as living there.

Handfuls of offenders live in smaller apartment buildings, such as one two-story complex on the southeastside with a sign outside that reads “ADULTS ONLY.” But the more offenders that live in one spot, the likelier the address is to be a halfway house, cheap motel or downtown high-rise.

The address with the second-most listed offenders is a tall brick apartment building on 13th and North Meridian Street. The third most are listed at Brandon Hall, a 24-hour supervision work-release home at 611 N Capitol Ave.

“Clustering,” as it is called, is a national phenomenon that experts say is an “unintended consequence” of state laws that limit where offenders can live.

Indiana’s version, Zachary’s Law, went into effect in 1994 and has been amended a number of times since. It prevents registered “offenders against children” from living within 1,000 feet of a school, youth program center or public park.

Parole restrictions go much further, with blanket provisions for all parolees released from prison for a sex offense. The stipulations rule out any registered sex offender living within 1,000 feet of “public swimming pools, public beaches, theaters, or any other place where children can reasonably be expected to congregate” — regardless of whether the offender’s conviction had to do with children. * * *

Wheeler Mission Ministries is the only homeless shelter in Indianapolis that serves offenders and does not violate the 1,000-foot law.

Wheeler, too, was off-limits for some of last year. A private school moved to within 837 feet, said Matt Roller, director of emergency shelter services. But the school moved a few months later.

Wheeler has 13 beds available for sex offenders, and has its own set of restrictions — no multiple offenders allowed, for example.

If Wheeler isn’t an option, parole can place an offender on DOC Assist, a five-year-old program designed to ensure that paroled sex offenders don’t end up on the streets.

Under the program, the Department of Corrections works out agreements with local motels and apartment complexes — the property owner agrees to take on the sex offenders, and the state pays the offenders’ rent, for a few weeks or a few months — until an offender can pay his own way, or leaves.

The state spent about $190,000 statewide on DOC Assist last year. (Offenders are supposed to pay the Department back once they find work, but only $300 was repaid last year).

This is where the King’s Inn — and its back building — enters the picture.

The DOC has used the motel on East 21st Street out near Shadeland Avenue for several years, going back to when it was known as a Budget Inn. It’s the only place in Indianapolis that takes in DOC Assist offenders.

“That’s the best we’ve got,” Turkupolis said, “and it keeps (them) out from under a bridge.”

This link to the Star Watch page leads to several companion stories. But there does not seem to be a link to the front-page graphic in the printed paper today, a map showing the addresses of the "cluster" buildings, mostly in the area slightly north of downtown Indy.
________
*The ILB highlighted this quote from the Star today today -- "According to the county’s online registry, which an Indianapolis Star review has found to be out of date in a number of places" -- in hopes that this issue, getting a name removed from the list, will be examined in a future story.

Posted by Marcia Oddi on Sunday, February 19, 2012
Posted to Indiana Law

Ind. Law - Feds' change in definition of "rape" for reporting purposes will impact Indiana

So reports Rebecca S. Green today in the Fort Wayne Journal Gazette in a long story. Observing that "Indiana’s laws that describe rape and other sexual assaults are ... very gender- and act-specific," the story continues:

[W]hile it is unlikely that a change in the federal definition will affect the way local police and prosecutors handle such cases, either in investigation or charging, it will likely cause the number of rapes reported to the FBI’s crime statistics program to jump.
Here is a Jan. 6, 2012 story by Ted Gest and Cara Tabachnick in The Crime Report. It begins:
U.S. Attorney General Eric Holder today announced revisions to the Uniform Crime Report’s definition of rape, which the Justice Department says will lead to a more comprehensive statistical reporting of rape nationwide.

Holder said the new definition is more inclusive, better reflects state criminal codes, and focuses on the various forms of sexual penetration understood to be rape. The revision had been urged by women's advocacy groups and was approved by an FBI advisory committee. * * *

The change has been almost a decade in the making * * *

The old definition, which was proposed in 1927 and signed into law in 1929, defined rape as "the carnal knowledge of a female, forcibly and against her will."

The new definition is: “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” This new definition now includes men and boys to provide a fuller picture of rape in America.

Why will this definition change matter in Indiana? The FWJG story continues:
The Fort Wayne Police Department reports crime statistics to the FBI’s Universal Crime Reporting program – created in 1992 to collect reliable crime statistics for the nation.

The data come from nearly 17,000 law enforcement agencies around the country. In Indiana, communities that report include Fort Wayne, South Bend and Evansville – cities with populations over 100,000. Indianapolis does not report.

The crimes reported include murder, larceny, robbery, forcible rape, aggravated assault, property crime, burglary, motor vehicle theft, and arson, according to the FBI.

The data serve as a measure, albeit an incomplete one, of various communities, Fort Wayne Police Chief Rusty York said.

“It measures serious crimes that have an adverse effect on the quality of life,” he said. “You measure yourself. … I like to use it to gauge where we are at from year to year to year.”

He said the new rape definition will not take effect for the purpose of reporting until January 2013. When that occurs, he expects a jump in the number of rapes reported to the national database.

Fort Wayne police reported 94 rapes last year and 96 in 2010, according to the police department.

What is now labeled as criminal deviate conduct will then be labeled as rape, York said.

A side-bar to the FWJG story surveys Indiana’s sex crime statutes.

Posted by Marcia Oddi on Sunday, February 19, 2012
Posted to Indiana Law

Saturday, February 18, 2012

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

Check out the seventh 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. There are a number of bills worth checking.

Posted by Marcia Oddi on Saturday, February 18, 2012
Posted to Indiana Courts

Ind. Gov't. - "Conflicts shake our confidence"

That is the heading to an editorial in today's Indianapolis Star that begins:

In Indiana, a firefighter, police officer or other municipal employee can sit on a city council, pass ordinances that affect how they and their coworkers do their jobs, and even help shape and approve annual budgets for the agencies in which they serve.

In Indiana, an educator can serve on a school board that sets policies for the same district in which he works. In our state, a legislator not only can work as an administrator for a public university but also vote on budgets that fund that same institution of higher learning.

And in Indiana, as we've seen this week, the chairman of the state Election Commission can pull double duty as a top leader in a candidate's election campaign. That dual role is allowed even though the Election Commission routinely has to make decisions that directly affect one campaign or another.

Next week, the Election Commission is scheduled to hear arguments over whether Republican presidential candidate Rick Santorum's name should appear on the May primary ballot. * * * The chairman of the Election Commission, Dan Dumezich, also is the co-chair of Mitt Romney's Indiana campaign.

Dan Carden of the NWI Times reported Friday on some bills of interest to NW Indiana still pending in the General Assembly, including:
Nepotism/conflict-of-interest — House Bill 1005 and Senate Bill 170 prohibit local government employees from serving as elected officials of governments they work for and bans relatives from supervising relatives in local government jobs. House expected to vote on Senate bill next week. Senate also slated to vote on House bill. Differences likely to be resolved in House-Senate conference committee.

Posted by Marcia Oddi on Saturday, February 18, 2012
Posted to Indiana Government

Ind. Law - "House bill chills students’ rights"

The ILB has written about HB 1169 twice before, first in this entry from Jan. 31st, which quoted the bill in full:

    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.

and again in this entry from Feb. 6th, that included this quote from the FWJG:
[HB 1169] appears to be a reaction to a successful lawsuit filed against Smith-Green Community Schools for suspending two girls from extracurricular activities for posting photos from a summer slumber party online. Yet a U.S. District Court upheld the girls’ lawsuit on constitutional free speech grounds, and it seems doubtful this heavy-handed attempt to allow schools to regulate students’ behavior in their homes would change the outcome.
Again on Friday, Feb. 17th the FWJG editorialized;
House Bill 1169 has been presented as a student discipline bill and is dressed up as a safeguard against cyberbullying. But in reality, it is a chilling and unprecedented attempt to give Indiana school officials unlimited authority over student behavior outside school. * * *

[The bill] allows school officials to punish students not just for criminal or delinquent acts but virtually any lawful activities they interpret as harmful to their schools.

Administrators, to no surprise, favor the bill, which the House passed 72-22. It was supported at Wednesday’s hearing of the Senate Education and Career Development Committee by the Indiana School Boards Association, the Indiana Association of School Principals and the Indiana State Teachers Association. * * *

Representatives of the NAACP and Concerned Clergy of Indianapolis testified against the bill, warning of the effect such a law would have on students of color, who already are disproportionately expelled and suspended from school.

Northeast Indiana has its own example of how the authority could be abused from a 2009 lawsuit filed against Smith-Green Community School Corp. over suggestive photos taken at a summer slumber party and posted on MySpace. The students involved were suspended from extracurricular activities. A federal district court judge ruled in the girls’ favor, citing a U.S. Supreme Court decision upholding a student’s right to free expression absent a disruption of work and discipline at school.

Gavin Rose of the ACLU of Indiana, which represented the Churubusco students, said that even if the bill were approved, First Amendment rights would trump Indiana law. [ILB - for more on that case, start with this ILB entry]

But Frank LoMonte of the Virginia-based Student Press Law Center rightly notes that many students and families aren’t in the position to defend their constitutional rights, and experience shows that some school officials will violate those rights.

It would allow them to clamp down on any student speech or behavior they don’t like, regardless of where it takes place.

“This would be the race to the bottom,” LoMonte said. “Indiana would be your ‘check-your-rights-at-the-border’ state if this passes.”

The bill is in the Senate Education Committee, and is on the agenda for the final meeting of the committee, which is scheduled for 1:30 PM on Wednesday, Feb. 22nd. Per the FWJG's story, testimony has already been heard, so all that remains is the vote.

Posted by Marcia Oddi on Saturday, February 18, 2012
Posted to Indiana Law

Friday, February 17, 2012

Ind. Decisions - Former Fayette County prosecutor reprimanded

A number of new disciplinary orders have been posted, dated Feb. 15th. Of general interest is In the Matter of Kenneth D. FAW, a 2-page order. Some quotes:

Stipulated Facts: Respondent was the prosecutor for Fayette County, and SD was an employee of the office. A police officer arrested SD's husband, BD, for the theft of metal pipes, which he had sold to a scrap yard. BD admitted he took the pipes but said he thought they were abandoned. The owner of the pipes told the officer that they were not abandoned or scrap. After transporting BD to the jail, the officer prepared an affidavit of probable cause and a report, which was delivered to the prosecutor's office. Respondent did not petition the trial court for the appointment of a special prosecutor to handle the case. Instead, he told his staff he would handle the matter personally and spoke to the officer about the arrest. No criminal charges were filed against BD.

The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; (3) Respondent is remorseful; and (4) Respondent served over 20 years in the Connersville Police Department and over nine years a the prosecutor for Fayette County.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 1.7(a)(2), which prohibits representing a client (the State) when the representation may be materially limited by the attorney's own self-interest or the attorney's responsibilities to a third person.

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent's misconduct.

Posted by Marcia Oddi on Friday, February 17, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Star FOIA reveals $210,000 state settlement in death of foster child

"The Star obtained the settlement agreement this week through a public records request filed with the office of the Indiana Attorney General." Read details here at the new Star Watch blog entry by Tim Evans.

Posted by Marcia Oddi on Friday, February 17, 2012
Posted to Indiana Decisions

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

In U.S. v. Henzel (SD Ind., Pratt), a 14-page opinion, Circuit Judge Bauer writes:

Samuel T. Henzel pleaded guilty to traveling across state lines with the intent to engage in illicit sexual conduct, 18 U.S.C. § 2423(b). He was given a prison sentence of 135 months, which the district court and the parties assumed to be above the applicable Guidelines range. On appeal, Henzel challenges only the reasonableness of that sentence, arguing that the district court did not give adequate reasons for the variance. We disagree. Moreover, although the point was overlooked by the parties, the district court miscalculated the imprisonment range favorably to Henzel, and the sentence imposed is actually within the correctly calculated range. We affirm the judgment.

Posted by Marcia Oddi on Friday, February 17, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

Barry Cook v. State of Indiana (NFP)

Todd A. Gray, Jr. v. State of Indiana (NFP)

Robert Kemp v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 17, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court posts one, dated Feb. 16th

In Tipton County Health Care Foundation, Inc, f/k/a Tipton County Memorial Hospital Foundation v. Tipton County Assessor, a 10-page opinion, Judge Wentworth writes:

This case concerns whether the Indiana Board of Tax Review (the Indiana Board) properly determined that the Tipton County Health Care Foundation, Inc. (the Foundation) failed to raise a prima facie case that its assisted living facility is exempt from property tax under Indiana Code § 6-1.1-10-16. The Court affirms. * * *

When the Indiana Board’s final determination is consistent with the law and supported by substantial evidence, as here, this Court will not substitute its judgment for that of the Indiana Board. Consequently, the Court AFFIRMS the final determination of the Indiana Board.

The new Indiana Property Tax Reporter blog has a good summary of the opinion here, headed "Tax Court Upholds Board's Finding that For Profit Entity Leasing an Assisted Living Facility Failed to Raise a Prima Facie Case for Exemption."

Posted by Marcia Oddi on Friday, February 17, 2012
Posted to Ind. Tax Ct. Decisions

Ind. Law - "Indiana lawmakers consider eliminating inheritance tax"

Eric Bradner reports today in the Evansville Courier & Press - some quotes from the long story:

INDIANAPOLIS — Instead of only lowering Indiana's inheritance tax, members of a key House panel said Thursday they favor phasing it out entirely — even though it would cost the state about $165 million in tax revenue annually.

The Indiana House Ways and Means Committee was considering a measure Thursday that has already passed the state Senate [SB 293] to lower inheritance taxes. The Senate bill would wind down the taxes charged to the estates of those who have died by about 50 percent.

However, members of that Republican-led committee said they'd favor doing away with the tax, over 10 years. That's what a separate bill passed by the House earlier in this year's session would do.

The committee's chairman, Rep. Jeff Espich, R-Uniondale, said he expects to amend repeal of the tax into the bill in place of only lessening it during a meeting next week.

"I think the House version is much cleaner and easier to understand," Espich said Thursday. He added that he believes a repeal will pass "before we get done" with the current General Assembly session, which ends in early March.

Posted by Marcia Oddi on Friday, February 17, 2012
Posted to Indiana Law

Stage Collapse - "Lawmakers consider additional compensation for State Fair victims: Teen provides Senate panel a vivid reminder of stage collapse's impact"

The Indianapolis Star has reporter Mary Beth Schneider's long, front-page story this morning. Some quotes:

As [former star athlete 18-year old Brad Humphrey spoke from his wheelchair], the hearing became more than a dry debate about whether the state should devote an additional $5 million to help the families of the seven killed and 58 injured. It instead was a heart-rending illustration of why those dollars were so needed.

Indiana law caps the state's liability at $5 million for all victims of a single incident. That means the families of those killed in the Aug. 13 disaster received $300,000 each, and some of those injured had 65 cents of each dollar of their current medical bills covered.

Under House Bill 1376, authored by House Ways and Means Chairman Jeff Espich, R-Uniondale, the state would allocate an additional $5 million, with the families of the dead each getting an additional $400,000. That $700,000, he said, is the maximum allowable under current law. And, he said, those injured would have the medical claims filed with the state covered.

Tony Patterson, an attorney for some of the State Fair victims, said the problem is those claims cover medical costs only for the first two months after the disaster. Lawsuits have been filed against various people and groups, including the state, which may lead to additional payments. The total damages, he said, are estimated at $100 million.

"An additional $5 million is really insufficient to help them," Patterson said.

The bill would allot new payments of just more than $4 million to the victims, leaving nearly $1 million more as a cushion the state can use for additional bills that may come in.

"If it were me, I'd probably give it to those who suffered lifelong disabilities, which is probably as sad as you can get," Espich said.

Humphrey told lawmakers he backed the bill, though he said "the new cap is not large enough for all the people who were injured and those families who had a family member die."

Espich didn't disagree.

"Nobody suggests $700,000 makes up for a death," he said. "None of us would trade our family members for $700 million." * * *

Senate Appropriations Chairman Luke Kenley, R-Noblesville, * * * said Espich did "an excellent job" of trying to assist the State Fair victims.

"Lawyers are always going to argue that they want you to pay more money because the state's a pretty deep set of pockets," he said. "I think the state's been very generous in actually agreeing to resolve the distributions they made earlier on the $5 million in a very quick manner. That has to create a great deal of value to the people that were the victims of this thing."

By adding $5 million, Kenley said, the state is doubling its payments, showing "a great level of sensitivity and generosity. We really don't have this obligation under the law, but we think we'd like to do it."

Some lawmakers have said the state should not do a one-time fix and instead should consider raising the liability caps, which were set in the 1970s.

Kenley said that is a good issue for the legislature to discuss, but "next year, in a calmer environment."

Posted by Marcia Oddi on Friday, February 17, 2012
Posted to Stage Collapse

Ind. Gov't. - "What do record low natural gas prices mean for states?"

Jim Malewitz, Stateline staff writer, has a long, comprehensive report today.

Posted by Marcia Oddi on Friday, February 17, 2012
Posted to Indiana Government

Ind. Decisions - Still more on: Supreme Court denies transfer for COA decision removing Prosecutor Keith Henderson from David Camm case

Updating yesterday evening's ILB entry, Harold J. Adams of the Louisville Courier Journal has this story this morning, headed "Prosecutor Keith Henderson defiant after removal from David Camm murder case." Among the quotes:

Henderson, citing the fact that Camm has twice been convicted of the murders only to have the convictions overturned, noted that “the state and the attorney general are zero-for-seven in the court of appeals and the Indiana Supreme Court” on an assortment of Camm related questions.

“However, in front of the trial court” he said, “both those two groups of twelve (jurors) convicted David Camm.”

[Camm defense attorney Stacey Uliana] said, “There’s obviously validity to every complaint that we’ve made because we’ve won every issue. All we’ve been trying to do is get the basic components of a fair trial.”

The first conviction was overturned by the Court of Appeals because then-prosecutor Stan Faith relied heavily on testimony about Camm’s extramarital affairs, which the court deemed irrelevant. The second was reversed because Henderson relied on what the supreme court called a “speculative” argument that Camm sexually molested his daughter.

Uliana said “that means you’re doing it wrong.”

Henderson said the Camm defense team filed the ethics complaint against him “to interfere” with his prosecution of the case. “It’s almost a duplicate of the motion for a special prosecutor” that claimed he tried to get more money in the book contract after the second conviction was reversed and then lied about it, he said.

Louisville law firm Frost Brown Todd is representing Henderson before the Indiana Supreme Court Disciplinary Commission regarding the complaint. The firm has billed Henderson a total of $27,539.55 for services between May 18 and Nov. 30 of last year, according to records of the Floyd County Auditor’s office. All of those bills have been paid by the county. * * *

The existence of the complaint became public because of the documentation accompanying the Frost Brown Todd invoices that are publicly available.

Posted by Marcia Oddi on Friday, February 17, 2012
Posted to Ind. Sup.Ct. Decisions

Vacancy on the Supreme Court 2012 - Interview schedule for Thursday, February 23rd

Just released interview schedule for Thursday, February 23rd:

8:45 a.m. – 9:15 a.m. – Ms. Jane Seigel
9:15 a.m. – 9:45 a.m. – Hon. Maria Granger
9:45 a.m. – 10:15 a.m. – Mr. Steven Schultz

(Break)

10:30 a.m. – 11:00 a.m. – Hon. Robyn Moberly
11:00 a.m. – 11:30 a.m. – Mr. Mark Massa
11:30 a.m. – 12:00 p.m. – Hon Cale Bradford
12:00 p.m. – 12:30 p.m. – Hon. Robert Altice

(Break)

12:45 p.m. – Deliberations in Executive Session

Posted by Marcia Oddi on Friday, February 17, 2012
Posted to Vacancy on Supreme Court 2012

Thursday, February 16, 2012

Ind. Decisions - More on: Supreme Court denies transfer for COA decision removing Prosecutor Keith Henderson from David Camm case

Updating yesterday's ILB entry, Matt Thacker of the New Albany News & Tribune has another long story today, headed "Floyd prosecutor critical of Supreme Court decision: Henderson defends using county funds for ethics complaint." Some quotes:

On June 3, 2009, Henderson’s literary agent negotiated a publishing agreement to print a book written by Henderson and a co-writer about the Camm case. After the conviction was overturned less than a month later, Henderson wrote a letter to his agent that he was still “committed to writing the book” but that it could not be published until after the third trial.

Henderson noted that he and former prosecutor Stan Faith — represented by the Indiana Attorney General’s Office — have gone 0 for 7 in Camm-related matters decided by the Court of Appeals and Supreme Court. Henderson said he would not have agreed to the book deal if he had known it would result in him being removed from the case. However, he stood by his decision to write the book.

“I felt an obligation as prosecutor to let the community know what I know,” he said.

Henderson said there needs to be further clarification for prosecutors about what is permissible communication. He questioned whether giving a television interview or writing newspaper column would disqualify someone from prosecuting a case.

He said it will be a challenge at first for the new prosecutor to become familiar with approximately 40 bankers boxes of information accumulated from the case. Although no one in his office can be involved in the prosecution, he promised to do whatever he can to help the new prosecutor get up to speed.

Henderson said he has not thought much about his plans for the book. He said he does not have an overwhelming desire to write it at this point but left the door open that he might change his mind.

“We’ll see where it goes,” he said. “As I stand here now, no.”

Re the ethics compliant mentioned in the headline:
Henderson also confirmed that Camm’s attorneys filed an ethics complaint against him. Camm’s attorneys and the Indiana Disciplinary Commission have been unable to confirm the complaint since it is still in the investigation stage.

The next step will be for the disciplinary commission to decide whether to formally charge Henderson with misconduct. If that happens, the Indiana Supreme Court will appoint a hearing officer to hear the evidence and prepare a report. The Supreme Court would then make the final decision about any discipline.

“These complaints get made quite regularly,” Henderson said, adding that this case is unusual because of the complexity of the complaint.

Henderson said the allegations in the complaint are nearly identical to those in the motion to remove him from the case — claiming he made public statements that could prejudice potential jurors and was wrong to negotiate a book deal for a case in which he was still involved.

Henderson denied he did anything unethical. He also defended using county funds to hire a civil attorney to represent him in the complaint. The Floyd County Commissioners approved the expenses.

Henderson said it is no different than a public official being named in a lawsuit and using public funds to defend himself. He rejected criticism that the ethics complaint could be viewed a private matter since it relates to the book deal and not his work as prosecutor.

“But for my position as prosecutor that complaint wouldn’t have been filed,” he said.

Posted by Marcia Oddi on Thursday, February 16, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "The state’s new centralized call center has come under fire recently from a number of sources, including judges and child advocates. "

Updating this ILB entry from Feb. 12th, IndyStar investigative reporter Tim Evans posts today in the new StarWatch blog on the advantages and disadvantages of routing all child abuse calls from anywhere in Indiana to a single Indianapolis call center.

Posted by Marcia Oddi on Thursday, February 16, 2012
Posted to Indiana Government

Vacancy on the Supreme Court 2012 - 2nd round date clarified as Thursday, Feb. 23rd

The date for the second round of hearings has clarified as Thurs., Feb. 23rd. (Here is the earlier news release.)

Expect to see the announcement of the times for the semi-finalist interviews tomorrow.

Posted by Marcia Oddi on Thursday, February 16, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - More on "Indiana Supreme Court Creates Task Force to Evaluate Marion County Small Claims Courts"

Updating this Feb. 14th ILB entry announcing the creation of the task force, hearing have now been scheduled. Below are the dates for the three Marion County Small Claims Courts hearings:

Perry Twp - 2/22/12 (Wednesday) at 6 pm
Small Claims Court, 4925 Shelby Street, Indianapolis

Pike Twp - 2/29/12 (Wednesday) at 6pm
Small Claims Court, 5665 Lafayette Road, Suite B, Indianapolis

Marion Circuit Court - 3/7/12 (Wednesday) at 6pm
Marion Circuit Courtroom, 200 E. Washington Street #W122, Indianapolis

Posted by Marcia Oddi on Thursday, February 16, 2012
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides failure to pay child support penalty case

In Amir H. Sanjari v. State of Indiana, a 7-page, 5-0 opinion, Justice Dickson writes:

[We] hold that IC 35-46-1-5 permits a separate class D felony conviction for nonsupport of each dependent child, but only one such offense may be enhanced to a class C felony where the unpaid support for one or more of such children is $15,000 or more. As to all other appellate issues, we summarily affirm the Court of Appeals. Ind. Appellate Rule 58(A)(2).

Posted by Marcia Oddi on Thursday, February 16, 2012
Posted to Ind. Sup.Ct. Decisions

Stage Collapse - "Gov. Daniels comments on State Fair report"

Sandra Chapman of WTHR 13 has an interesting report on Daniels' comments on the IOSHA findings and the proposed legislation. Some quotes:

Gov. Mitch Daniels responded for the first time Wednesday since the release of critical findings to questions about change and accountability. He commented on the IOSHA findings against the Indiana State Fair Commission. * * *

State labor investigators have determined the State Fair Commission failed to act in time.

"I trust that they came to a sound conclusion," said Gov. Daniels speaking publicly about the findings and accountability for the first time since the release of the official state report.

"You are a governor that has touted accountability. Why has there not been any accountability for the members of the Indiana State Fair Commission at this point?" questioned 13 Investigates.

"I want to wait until we have the professional report," said Daniels. "But that won't be the end of it. We're going to wait until we have the two larger reports of the overall event before we decide anything."

He's talking about the structural report on the cause of the collapse and an in-depth look at how Executive Director Cindy Hoye and her team responded before, during and after the tragedy.

At one point, Daniels attempted to deflect the severity of the labor findings and the blame.

"There's absolutely no way of knowing, and there's nothing in their report that said we would have had a different outcome, if they'd had a different plan in place," refuted the governor. "But that's no excuse for having the best possible plan," he conceded.

Not quite. When Labor Commissioner Lori Torres spoke about "not knowing," she was only speaking of injuries. She did in fact specifically call out the state's slow response.

"Clearly, had an earlier evacuation based upon timely national weather service information, as well as visual sightings of lightning in the sky before the collapse, would have changed things," Torres said a week ago.

Speaking of changes, dual bills in the House and Senate call for legislative changes requiring permits and inspections for all temporary outdoor stages.

Days after the collapse Daniels said he would support such a measure. On Wednesday he said, "We may be able to do it without legislation. One direct step that I have strongly encouraged is getting away from temporary stages."

Instead, Daniels said modernizing the Pepsi Coliseum is a "failproof" way of ensuring Indiana doesn't have a repeat.

Posted by Marcia Oddi on Thursday, February 16, 2012
Posted to Stage Collapse

Ind. Decisions - Supreme Court decides state employees back pay case

In Richmond State Hospital and All Other Similarly Situated State Institutions and Agencies v. Paula Brattain, et al., a 9-page, unsigned per curiam opinion, with Justice Sullivan not participating, the Court writes:

In short summary, for over twenty-five years, the State of Indiana required certain employees to work 40-hour weeks while requiring certain other employees to work only 37.5-hour weeks. Though the employees received the same biweekly paycheck, the effect of the State’s policy was a disparity in actual hourly wage. The State ended the policy in 1993, but this class action was brought on behalf of those 40-hour employees. * * *

We granted transfer, 950 N.E.2d 1211 (Ind. 2011) (table), and of necessity this case is being heard by only four members of this Court. The four participating Justices have cast diverging votes as to the various claims and subclaims delineated above, but cognizant of the need to conclude a case that has now lasted nineteen years, we have attempted to forge a result that will prevent perpetuation of the contest. With those votes largely characterized by a 2-2 division, we summarily affirm the Court of Appeals with respect to its determination of the merit employees’ claims. Ind. Appellate Rule 58. The sole exception relates to the State’s contention that laches should bar outright the employees’ claims, which we discuss below. * * *

The State contends that the equitable doctrine of laches operates to bar all of the employees’ claims. The employees do not dispute that laches could apply, arguing instead that the evidence was insufficient to support a ruling in the State’s favor. We think the State’s position goes too far, and we largely reject it, except as to part of the recovery for the non-merit employees. * * *

This brings us to whether this unreasonable delay caused a change in circumstances constituting prejudice to the State. The State contends it was prejudiced to the extent of $42 million—though the amount attributable to non-merit employees reflects only $18.7 million of that total—whereas had the claim been brought earlier, the State “would have been on notice of a problem and would have had an earlier opportunity to respond and limit liability.” * * *

While we think the Attorney General’s contention that laches should bar all claims by all claimants goes a bridge too far, we conclude that the inordinate delay as respects the non-merit claims—filed by amendment forty-five years after they arose—warrants limitation on the damages as to these claims only.

Accordingly, in the context of this particular case and under these particular circumstances, we hold that the back pay recovery of the non-merit employees should be limited in the same manner as the Court of Appeals has set forth for that of the merit employees. See Richmond State Hosp., 939 N.E.2d at 1128. We remand with instructions to recalculate the non-merit employees’ back pay judgment based upon that time period, and summarily affirm the Court of Appeals in all other respects.

ILB: Okay, I've looked at the COA opinion -- somebody is going to have to tell me how this case comes out, $$-wise.

Here is a long list of earlier ILB entries on the case.

Posted by Marcia Oddi on Thursday, February 16, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Raymond Dale Berryhill v. Parkview Hospital, a 13-page opinion, Judge Crone writes:

Raymond Dale Berryhill, who had suffered a stroke and other health problems, became agitated and fought with his wife. His family persuaded him to go to the emergency room at Parkview Hospital (“Parkview”), where he voluntarily checked himself in and underwent some medical tests. Berryhill became loud and aggressive. Berryhill's physician was concerned that he might be a danger to himself or others, so he ordered him to be taken to a secured room and sedated. Two Parkview security guards tried to calm Berryhill down, but he resisted and demanded to go home, so they escorted him to the secured room and placed him in restraints. After Berryhill's outburst, his wife filed an application for Berryhill to be detained and examined at Parkview Behavioral Health, from which he was released two days later.

Berryhill sued Parkview, alleging that the security guards' actions constituted false imprisonment. The trial court concluded that Parkview was immune from liability based on a statute that covers persons who assist in detentions. Berryhill now appeals, claiming that the immunity statute does not apply because he was not detained for purposes of the statute until after his wife filed the application for detention. We disagree with Berryhill and affirm the trial court's judgment.

In State of Indiana v. Elvis Holtsclaw, a 9-page, 2-1 opinion, Judge Bailey writes:
The State of Indiana appeals the denial of its motion to correct error following the trial court’s order granting defendant Elvis Holtsclaw’s (“Holtsclaw”) motion to suppress evidence. The parties raise two issues for our review, one of which we find dispositive: whether the State’s appeal should be dismissed as untimely. We dismiss. * * *

The trial court granted Holtsclaw’s motion to suppress on May 23, 2011. The State filed its notice of appeal of this order on August 18, 2011, well after the thirty day deadline. The State’s appeal is therefore untimely and must be dismissed. See Ind. App. R. 9(A)(5) (“Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited”). Dismissed.

DARDEN, J., concurs.
BAKER, J., dissents with opinion. [That begins, at p. 7] I respectfully dissent, and part ways with the majority’s decision to dismiss this appeal. More specifically, I cannot agree that Indiana Code section 35-38-4-2 precludes the State from appealing the trial court’s denial of its motion to correct error in this instance.

NFP civil opinions today (5):

Paternity of I.I.Y.; L.M.M. v. J.B.Y. (NFP)

The Matter of the Term. of the Parent-Child Rel. of J.D. and R.G. v. Indiana Dept. of Child Services (NFP)

City of Fort Wayne, Indiana v. Town of Huntertown, Indiana (NFP)

Roger L. Bushhorn v. State of Indiana (NFP)

Rosewood Management Company, Inc. v. Twyla Smith (NFP)

NFP criminal opinions today (3):

In State of Indiana v. Angela Bennett (NFP), a 6-page opinion, Judge Vaidik writes:

The State of Indiana appeals the trial court’s order granting Angela Bennett a restricted driver’s license. Because the record shows that Bennett has a prior conviction that disqualifies her from receiving a restricted license, we reverse. * * *

Bennett admitted that she was convicted of leaving the scene of an accident resulting in injury, despite her contrary affirmation in her petition that she had no disqualifying conviction. This conviction falls squarely within the list of offenses that disqualify Bennett from receiving a restricted driver’s license. Although Bennett argues and the trial court found that the facts of Bennett’s 1992 conviction were not sufficient to disqualify her from receiving a restricted driver’s license, the restricted-license statute does not provide a mechanism to evaluate the prior convictions or give the court the discretion to set aside otherwise disqualifying prior convictions. This is essentially what the trial court did here. The trial court’s authority to grant a restricted license is limited and arises from the statute. Because Bennett has a conviction under section 4(a), she is disqualified from receiving a restricted license under Section 9-30-10-9(e). Reversed and remanded.

Jason B. Forrest v. State of Indiana (NFP)

Jason J. Kucenski v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 16, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - "Proposed changes to the Parenting Time Guidelines available for review"

Per a news release from Feb. 8:

Proposed changes to the Indiana Supreme Court Parenting Time Guidelines are available for review. Comments from the public on the proposed new rules will be accepted by the Domestic Relations Committee until March 26, 2012. There is a form online for submitting comments electronically about the proposed changes.

The Parenting Time Guidelines help judicial officers make decisions about the time each parent spends with their child when parents are not able to agree. The specific proposed rules and ability to comment on them can be found here. The Proposed Guidelines are organized into sections on implementing Rules, Parenting Time, Parenting Coordination, and Parallel Parenting.

The proposed changes include guideline revisions for holidays, weekends and overnights. There are revised guidelines to recognize parents’ ability to use video (for example, Skype) to communicate with their child.

The proposed changes also include new Parenting Coordination Guidelines, which include qualifications to become a parenting coordinator, the role of a parenting coordinator, handling of reports and recommendations of parenting coordinators. The Parenting Coordination portions of the Rules and Guidelines were developed jointly by the Alternative Dispute Resolution Committee and the Domestic Relations Committee. A new Parallel Parenting Guideline and Order is included for use in high conflict cases.

The Domestic Relations Committee will review submitted comments to assist it in recommending the guidelines to the Indiana Supreme Court. Once comments are submitted, the Domestic Relations Committee and Alternative Dispute Resolution Committee (committees made up of trial court judges) will review the responses and prepare a revised draft for submission to the Supreme Court. The Justices of the Supreme Court determine if the rules are approved.

Posted by Marcia Oddi on Thursday, February 16, 2012
Posted to Indiana Law

Ind. Gov't. - "Many other progressive cities are already on board, like Indianapolis, Chicago, and New York City. "

Adding to the ILB's long list of "chicken underground" entries, including this one from Sept. 15, 2011, headed ""Life is sunnyside up for Indianapolis chicken owners"," ABC 57 News reports from South Bend that the Mayor there, Pete Buttigieg, is asking: "Urban chickens are in the news again. Would citizens here embrace the movement?"

Posted by Marcia Oddi on Thursday, February 16, 2012
Posted to Indiana Government

Wednesday, February 15, 2012

Ind. Decisions - Supreme Court denies transfer for COA decision removing Prosecutor Keith Henderson from David Camm case [Updated]

Here is the Nov. 15, 2011 Court of Appeals opinion ordering a special prosecutor in David Camm case.

Here is the Dec. 15, 2011 announcement by the AG that he would appeal the COA decision.

What follows is the current docket entry:

DATE TEXT
2/14/12 THIS MATTER HAS COME BEFORE THE INDIANA SUPREME COURT ON A
PETITION TO TRANSFER JURISDICTION FOLLOWING THE ISSUANCE OF A
DECISION BY THE COURT OF APPEALS. THE PETITION WAS FILED
PURSUANT TO APPELLATE RULE 57. THE COURT HAS REVIEWED THE
DECISION OF THE COURT OF APPEALS. ANY RECORD ON APPEAL THAT WAS
SUBMITTED HAS BEEN MADE AVAILABLE TO THE COURT FOR REVIEW, ALONG
WITH ANY AND ALL BRIEFS THAT MAY HAVE BEEN FILED IN THE COURT
OF APPEALS AND ALL THE MATERIALS FILED IN CONNECTION WITH THE
REQUEST TO TRANSFER JURISDICTION. EACH PARTICIPATING MEMBER OF
THE COURT HAS VOTED ON THE PETITION. EACH PARTICIPATING MEMBER
HAS HAD THE OPPORTUNITY TO VOICE THAT JUSTICE'S VIEWS ON THE
CASE IN CONFERENCE WITH THE OTHER JUSTICES.
BEING DULY ADVISED, THE COURT NOW DENIES THE APPELLEE'S
PETITION TO TRANSFER OF JURISDICTION.
RANDALL T. SHEPARD, CHIEF JUSTICE
ALL JUSTICES CONCUR, EXCEPT FOR DICKSON, J., WHO VOTES TO GRANT
THE PETITION TO TRANSFER.
(ORDER REC'D 02/14/12 AT 2 P.M.) ENTERED ON 02/15/12 KJ
2/15/12 ****** ABOVE ENTRY MAILED ******

[Updated at 4:18 PM] Matt Thacker of the New Albany News & Tribune is reporting, in a story that begins:

INDIANAPOLIS — An Indiana Supreme Court ruling ensures David Camm will have a new prosecutor for his third trial.

The Indiana Court of Appeals removed Floyd County Prosecutor Keith Henderson from the case in a 3-0 decision published Nov. 15. The Indiana Attorney General’s Office filed a petition seeking transfer the case to the state’s highest court.

The Supreme Court justices voted 4-1 to not accept the case with only Justice Brent Dickson voting to grant the petition to transfer.

Camm’s attorney, Stacy Uliana, said Spencer County Judge Jonathan Dartt — appointed special judge for the case — will decide who is appointed special prosecutor. She hopes one will be appointed within the next week or two.

“We’re obviously happy about this decision. We expected it, but at the same time, we’re happy and we’re relieved it will go forward,” she said.

Uliana said their only concern is now that Henderson does not influence who is selected special prosecutor. There will likely not be a hearing on the matter unless the defense objects to the appointment.

Henderson’s office said the prosecutor will not release a statement until Thursday.

Posted by Marcia Oddi on Wednesday, February 15, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Where do you go to get your reputation back?

That is sometimes the question. But then again, sometimes the exoneration leads to a rehash of the original story, all over again. Here is the Indianapolis Star's story this afternoon on Steve Goldsmith.

Posted by Marcia Oddi on Wednesday, February 15, 2012
Posted to Indiana Law

Courts - "If federal prosecutors receive public credit for their good works--as they should-they should not be able to hide behind the shield of anonymity when they make serious mistakes"

9th Circuit's response to federal prosecutor who wished not to be publicly admonished in a decision. See How Appealing entry and links.

Posted by Marcia Oddi on Wednesday, February 15, 2012
Posted to Courts in general

Ind. Law - Super Lawyers features Jon Laramore and Monica Foster

I received this year's Indiana Super Lawyers in the mail today and two widely-respected Indianapolis attorneys (and incidentally two of my personal favorites), are featured: Jon Laramore of Baker & Daniels, head of the firm's appellate practice section, and Monica Foster, "one of the nation's foremost death penalty attorneys." Great choices this year!

Posted by Marcia Oddi on Wednesday, February 15, 2012
Posted to Indiana Law

Stage Collapse - "Victims of the Indiana State Fair stage rigging collapse will receive a third payment from the State Fair Relief Fund"

Both WISH TV and Fox 59 have the report.

Posted by Marcia Oddi on Wednesday, February 15, 2012
Posted to Stage Collapse

Ind. Courts - More on: Marion County Judge Marilyn A. Moores reflects on her year in Afghanistan with the Nat'l. Guard

Updating this ILB entry from Feb. 6, 2012, which linked to a story by Judge Moores, here is a Court Times story about Judge Moores.

Posted by Marcia Oddi on Wednesday, February 15, 2012
Posted to Indiana Courts

About the ILB - Please help support the Indiana Law Blog!

Another plea. Yes, the ILB has a LOT of loyal readers. Yes, it is a wonderful resource. But its only support is reader contributions.

Won't you join one of these groups of ILB supporters?

Posted by Marcia Oddi on Wednesday, February 15, 2012
Posted to About the Indiana Law Blog

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):

Pierre Freeman v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 15, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "Vectren: Shale-gas boom makes Rockport, Ind. coal-to-gas deal risky"

Updating yesterday's ILB entry, here are a number of stories on the House committee testimony yesterday:

All the stories quote Jerrold Ulrey, the vice president of regulatory affairs and fuels for Vectren, and Mark Lubbers, the Indiana consultant for New York-based Leucadia National Corp.

I watched the committee hearing via the internet, and one piece of Mr. Lubber's testimony I did not find reported was re the current low natural gas prices continuing into future years, one of the facts that has led to questioning the wisdom of the Indiana deal. Mr. Lubbers said big oil is keeping the price of natural gas artificially low at present, below the price of production, to drive out competition.

If that is so, Wyoming and the chemical industry, both mentioned in this ILB entry from Feb. 13th, should take note.

Posted by Marcia Oddi on Wednesday, February 15, 2012
Posted to Indiana Government

Ind. Decisions - More on: Supreme Court reverses Judge Dreyer in IBM case

Niki Kelly of the Fort Wayne Journal Gazette had coverage yesterday encompassing both the Monday morning oral argument and the Monday afternoon ruling.

Posted by Marcia Oddi on Wednesday, February 15, 2012
Posted to Ind. Sup.Ct. Decisions

Environment - "Feds downgrade Michigan's Palisades nuclear plant over safety"

Here is the story, from the South Bend Tribune. The nuclear plant is located on Lake Michigan, near New Haven.

Here is an earlier ILB entry mentioning the plant, from March 16, 2011.

Posted by Marcia Oddi on Wednesday, February 15, 2012
Posted to Environment

Law - Legal questions re digital assets in death and divorce examined

"What Happens to Your ‘Digital Assets’ When You Die?" was the heading to an article by Steve Eder in the WSJ Law Blog Feb. 13th. It begins:

When it comes to handling the social media and email accounts of the deceased, there are plenty of unknowns. One of the biggest is passwords, legal experts say.

“A big problem is lost passwords,” said Gene Hennig, a lawyer with Gray Plant Mooty in Minneapolis. “Let’s assume you die this afternoon and you haven’t given your password to anybody. How do people get into your stuff? How do they even know about it?”

He added, “It can be a big, big mess. Passwords can be enormously encrypted these days. Unless the service provider cooperates with you, you are out of luck.”

Hennig, a commissioner to the Uniform Law Commission, is hoping to bring clarity to some of the questions about what happens to your so-called “digital assets” when you die. In late January, Hennig proposed that the commission form a committee to study the “digital assets” successor issue.

Yesterday, Prof. Anita Ramasastry had an article in Justia's Verdict titled "Divorce, Digital Identities, and Virtual Property: Who Gets Your Facebook Friends and Farmville Dollars When You Split Up?"
In this article, I will discuss (1) how one might divide virtual assets in the event of a divorce; and (2) the growing trend of divorce lawyers’ examining tweets, texts, and online posts, with the consequence that people who are divorcing might be wise to decide not to be as “social” as usual, especially about their new, post-split dating life.

Posted by Marcia Oddi on Wednesday, February 15, 2012
Posted to General Law Related

Tuesday, February 14, 2012

Ind. Decisions - Supreme Court decides one today

In Kevin L. Hampton v. State of Indiana, an 18-page, 5-0 opinion, Justice Dickson writes:

We affirm the denial of the defendant's post-conviction claim of ineffective assistance of appellate counsel but hold that an instruction on the requirement of proof beyond a reasonable doubt does not obviate the necessity, where the conduct of the defendant constituting the com-mission of a charged offense is proven exclusively by circumstantial evidence, of an additional jury instruction advising the jury that proof by circumstantial evidence must be so conclusive and sure as to exclude every reasonable theory of innocence. * * *

The Court of Appeals affirmed the denial of post-conviction relief, believing that the "instruction on proof beyond a reasonable doubt . . . nicely covered the issue and rendered harmless any potential error" in refusing the tendered instruction. Hampton v. State, 936 N.E.2d 1274, 1276–77 (Ind. Ct. App. 2010). Although we ultimately reject the defendant's claim of post-conviction court error, we granted transfer to provide clarification for the bench and bar regarding the "reasonable theory of innocence" instruction because we disagree with the Court of Appeals that the giving of a conventional reasonable doubt instruction renders unnecessary the giving of the "reasonable theory of innocence" instruction. [ILB emphasis added]

The COA opinion here was issued Nov. 16, 2010.

Posted by Marcia Oddi on Tuesday, February 14, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Still more on "Bond ordered in baby’s rat-poison death"

Updating my earlier post today on implementation of the COA decision last week in Bei Bei Shuai v. State, I've received some feedback on what to expect as a result of the COA ruling last week.

Be aware that this is speculation from attorneys not associated with the case. But it looks like it could be months before Ms. Shuai's bond hearing before the Marion County Court, which I had been told was originally scheduled for last Friday.

The word is that the trial court vacated the bond hearing given that Ind. R. App. P. 65(E) forbids reliance on a COA opinion prior to certification:

E. Certification of Opinion or Not-For-Publication Memorandum Decision. The Clerk shall serve uncertified copies of any opinion or not-for-publication memorandum decision by a Court on Appeal to all counsel of record, unrepresented parties, and the trial court at the time the opinion or memorandum decision is handed down. The Clerk shall certify the opinion or memorandum decision to the trial court or Administrative Agency only after the time for all Petitions for Rehearing, Transfer, or Review has expired, unless all the parties request earlier certification. If the Supreme Court grants transfer or review, the Clerk shall not certify any opinion or memorandum decision until final disposition by the Supreme Court. The trial court, Administrative Agency, and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified.
IF no appeal is filed, this could take a few weeks -- in one case I just checked the COA opinion was issued 10/14/09 and the opinion was certified 11/24/09.

But, as a reader writes:

Assuming someone seeks rehearing or transfer (which obviously I’d anticipate that at least one party, and likely both parties, will), I think that it will take many months.

I think there is some mechanism for either seeking immediate certification (although I think this requires both parties’ consent) or seeking a stay of the initial order denying bail in the interim, but I don’t know whether Bei Bei’s attorneys are considering those options.

Posted by Marcia Oddi on Tuesday, February 14, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on "Bond ordered in baby’s rat-poison death"

Despite the COA ruling on Wednesday, Feb. 9th, the ILB has seen no news on Ms. Shuai's current status.

Posted by Marcia Oddi on Tuesday, February 14, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 19 NFP)

For publication opinions today (3):

In In Re: The Marriage of K.Z. and M.H., a 6-page opinion, Judge Bailey concludes:

Father should not be compelled to initiate paternity proceedings, as if the child were an out-of-wedlock child. Although the child was not born during the marriage, the child is – according to the parties’ affirmative representations to the court and statutory presumption – a child of the marriage.

As such, the dissolution court’s decision to modify the decree was not against the logic and effect of the facts and circumstances before it. No injustice resulted from the grant of relief. Mother has demonstrated no abuse of discretion.

In State of Indiana v. Renee Lynch, an 8-page opinion, Judge Vaidik writes:
The State of Indiana appeals the trial court’s grant of Renee Lynch’s motion to suppress evidence obtained from a traffic stop. Lynch argues that because the police officer did not have reasonable suspicion to initiate the traffic stop, all evidence of her intoxication should be suppressed. We conclude that the officer had reasonable suspicion to stop Lynch because she did not turn left at an intersection from the clearly marked turn-only lane. We therefore reverse the trial court.
In Term. of Parent-Child Rel. of C.M., G.M., and R.M.; A.M. (Mother) and C.M. (Father) v. Indiana Dept. of Child Services, Dearborn County Office , a 4-page opinion in a petition for rehearing, the panel reaffirms its original opinion. Judge Bailey writes:
The DCS asserts that we have imposed an undue burden upon it by recognizing the DCS has to make a prima facie showing regarding current conditions before the parent is obliged to come forward with any evidence. According to the DCS, the parent who has been separated from his or her child bears the burden of going forward with evidence of changed conditions. The DCS also urges a “hierarchy” of evidence for consideration by the court, with evidence of historical conduct to be paramount over evidence of current or changed conditions.

We resolve these concerns with resort to the statutory guidance given to us by our Legislature. The DCS must prove each of the elements alleged in its petition; the “burden of proof in termination of parental rights cases is one of ‘clear and convincing evidence.’” * * *

In order for the court to properly reach a conclusion of law, it must have made some factual findings to support the conclusion. We reiterate: those factual findings must rest upon clear and convincing evidence. Accordingly, we affirm our original opinion.

NFP civil opinions today (9):

Austin White v. Jessamyn Rhymer (NFP)

R.T. Moore Co., Inc., FAHS Construction Group, Hearth at Tudor Gardens, LLC and Hearth at Juday Creek, LLC (NFP)

Term. of the Parent-Child Rel. of B.T. and L.T. v. The Indiana Dept. of Child Services (NFP)

Aileen (Scott) Kruse v. James D. Scott (NFP)

Richard William, as Personal Rep. of the Estate of Mary Lee Enlow, Deceased, and Vickie Lee Williams v. Kevin Heavner, as Personal Rep. of the Estate of Norman Heavner, Deceased (NFP)

Kathleen T. Mercier v. Review Board of the Indiana Dept. of Workforce Development and HSS Systems, Inc. (NFP)

Term. of Parent-Child Rel. of K.E. & H.E. (Minor Children) and D.E. (Father) & D.E. (Mother) v. Indiana Dept. of Child Services (NFP)

Rick Carter v. Kristina Anderson (NFP)

James Arthur v. Michael F. Ward, as Personal Rep. of the Estate of Judith A. Arthur and Delbert N. Arthur, III, Individually (NFP)

NFP criminal opinions today (10):

Michael T. Hackworth v. State of Indiana (NFP)

Robert M. Nolan v. State of Indiana (NFP)

Gerald P. VanPatten v. State of Indiana (NFP)

Keith R. Erwin v. State of Indiana (NFP)

Roy A. Dinwiddie v. State of Indiana (NFP)

Brandi Lynn Ramsey v. State of Indiana (NFP)

William Lamar Bass v. State of Indiana (NFP)

William K. Aynes v. State of Indiana (NFP)

Delaney Wright v. State of Indiana (NFP)

John Rogers v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 14, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Rare dissent with separate opinion in 3-2 Supreme Court transfer denial

The order denying transfer, filed Feb. 10, 2012 in the case of Anna Quimby v. Becovic Management (a March 8, 2011 COA opinion), includes a rare published dissent by Justice Sullivan, joined by Justice Rucker, that concludes:

I believe that we should grant transfer in this case to determine whether claims under the Wage Payment Statute may be assigned to the DOL, in part because it does not appear that the DOL itself is clear on this question. The DOL did not indicate in any of the materials that it sent to either Quimby or Becovic that it was the assignee of Quimby’s claim. Rather, it referred to its services as “mediation” and even suggested that Quimby file the very lawsuit giving rise to this appeal. Neither the instructions attached to the DOL’s electronic “Application For Wage Claim” nor the frequently asked questions on the DOL’s website acknowledge that it is taking these claims by assignment. See Wage Claim Instructions & Application (2009), available at http://www.in.gov/dol/files/WageClaimInstructionsApp092407Corrected.pdf (last visited Feb. 9, 2012) (stating the DOL “accepts Wage Claims as a service to resolve wage disputes”); DOL: Wage & Hour FAQs, http://www.in.gov/dol/2345.htm#104 (last visited Feb. 9, 2012) (noting that current employees or those who have voluntarily separated may either file a wage claim or file a lawsuit). And, the language on its form states that the claim is being assigned for “processing in accordance with the provisions of [the Wage Claims Statute],” so it might very well be that the DOL only intends to take by assignment claims under that statute.

There are likely many other claimants in Quimby’s position – claimants that do not have to but nevertheless seek the DOL’s assistance with their wage disputes. Because the Court has decided not to grant transfer, I urge the DOL to examine this question and if it agrees with the Court of Appeals that in such circumstances it takes these claims by assignment, to revise its documents to make that clear to both the employee and employer, or if it concludes contrary to the decision of the Court of Appeals that it does not take these claims by assignment, to revise its form to remove this language.

Posted by Marcia Oddi on Tuesday, February 14, 2012
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Courts - "Indiana Supreme Court Creates Task Force to Evaluate Marion County Small Claims Courts"

A press release from the Supreme Court:

The Indiana Supreme Court has created a task force to review the practices the procedures used in the Marion County Small Claims Courts. Critical reports in the national press suggest litigants in those courts do not always have the same access to justice as litigants in other Indiana courts. As part of the review, the Court has directed public hearings be held. Ultimately the Supreme Court will determine whether any changes are needed in the Marion County Small Claims Courts.

The nine Marion County Small Claims Courts primarily handle collection disputes and landlord-tenant claims involving up to $6,000. In 2010, the courts handled approximately 69,500 new cases. Supreme Court Rules require small claims court trials to “be informal, with the sole objective of dispensing speedy justice.” In all other Indiana counties, small claims cases are part of the regular caseload of the circuit and superior courts—not a separate court.

The reported allegations against the courts include accusations that large filers, such as property managers and collection companies, receive special treatment in the courts. For example, an alleged practice involves “forum shopping,” which means the plaintiff files a case in a court that lacks reliable access to public transportation, in hopes that the defendant will not be able to attend the hearing and a default judgment in favor of the company will be issued.

The Marion County Small Claims Courts are organized along township lines and funded at the township level. Questions have been raised regarding the township trustees’ influence on court staff and operating budgets, which affect judicial independence. In several townships, the judges do not have input into the courts’ budgets and learn of changes or cutbacks only after the budget has been determined. In other Indiana counties, judges go to the County Commissioners for budget approvals. Marion County Small Claims Courts also charge different court costs than other Indiana courts.

The Marion County Small Claims Court judges, with the participation of Circuit Court Judge Louis Rosenberg, have started to take action in response to these allegations, including a plan to post brochures detailing litigants’ rights and responsibilities in the courtrooms.

The task force is made-up of Indiana Court of Appeals Judge John Baker and Senior Judge Betty Barteau. Both have extensive experience at every level of the Indiana court system, including small claims cases. They will gather information by meeting with the judges and staff and from public hearings. The hearings will be scheduled for late February and early March in Perry and Pike Townships. The goal is to get feedback from small claims litigants and attorneys.

After reviewing current practices and procedures, the task force will report to the Indiana Supreme Court Committee on Rules of Practice and Procedure. The task force may make recommendations on needed adjustments in the courts depending on what it uncovers. The Rules Committee will make recommendations to the Indiana Supreme Court about any necessary changes in rules or procedures in the Marion County Small Claims Courts. The Supreme Court will determine whether any procedural rules need to be changed.

ILB: One of "critical reports" is linked in this July 18, 2011 ILB entry - a Wall Street Journal story headed "In Debt Collecting, Location Matters." Here is a sample:
Judge A. Douglas Stephens, who presides over all the township's small-claims cases, calls himself a "Renaissance redneck" and wears a small gun strapped to his ankle while on the bench. He says he has little patience for the "feeble protests" of people who try to dodge their financial obligations. * * *

As companies and debt collectors try to collect on overdue bills that piled up during the financial crisis, the recession and their aftermath, they are borrowing a tactic from plaintiffs' lawyers: They shop around for the best places to bring their claims. Debt collectors aren't so much worried about whether a court will rule that the debtor owes the money—most cases are fairly clear-cut on that point—but about how aggressively collectors can pursue a debtor's assets. * * *

Parts of Indiana are particularly unusual. Although the state requires suits to be filed in the county where the borrower lives, in Marion County and one other county, collectors can choose among township courts—each with a single judge. The courts handle all collection disputes involving up to $6,000.

Posted by Marcia Oddi on Tuesday, February 14, 2012
Posted to Indiana Courts

Ind. Decisions - More on: SCOTUS grants cert in: Homeowners' Lose Sewer Suit Against City

Updating this ILB entry from Nov. 14, 2011 on Armour v. Indianapolis, which will be argued before the SCOTUS on Wed., Feb. 29th, here is the National League of Cities take on the case.

The ever-wonderful SCOTUSblog has a page devoted to this appeal, including all the documents from the Indiana Supreme Court decision and forward.

For background see this May 10, 2011 ILB entry, and this one from Sept. 10, 2011.

Posted by Marcia Oddi on Tuesday, February 14, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Clearly, the extensive improvements instituted several years ago in child welfare are not sufficient."

Updating this ILB entry from Feb. 12th, the Indianapolis Star today has an editorial referencing its investigative story. Some quotes:

How many other Devins are out there, on the verge of death or simply deprived of a rightful childhood -- fated to be tomorrow's abusers?

The cruel life of a quiet 12-year-old Greensburg boy was documented Sunday by The Star's Tim Evans, who laid out a shocking description of 19 reports of abuse or neglect to the Indiana Department of Child Services. The last, on June 3 of last year, came from police, who found his body and arrested his mother, Tasha Parsons, and her boyfriend, Waldo Lynn Jones Jr., on murder charges.

How could Devin and his two siblings have been left in that home after report upon report, some from police and school personnel, citing actual or suspected beatings, illicit drug use, weapons and other hazards? Most, but not all, were labeled "Unsubstantiated" by DCS investigators. Two were screened out by the DCS initial call center despite the history of family trouble that preceded them.

Under confidentiality rules, DCS is not saying why the children were not removed from Parsons' care at least until support services for her had been tried, and tried successfully. The same official silence greeted The Star's recent report of six deaths last year of children on the DCS radar.

Clearly, the extensive improvements instituted several years ago in child welfare are not sufficient. If the system is better designed and equipped, the people operating it are failing to act on what it shows them.

Oddly, today's Star editorial does not tie-in to the Star's promising new Star Watch page, that ties together current and past Star stories on the topic, plus stories from other newspapers around the state -- recognizing that this is a state-wide problem.

Posted by Marcia Oddi on Tuesday, February 14, 2012
Posted to Indiana Government

Ind. Gov't. - "Vectren: Shale-gas boom makes Rockport, Ind. coal-to-gas deal risky"

That is the headline to Eric Bradner's story today in the Evansville Courier & Press, that supplements yesterday's ILB entry headed "Natural Gas Prices Plunge, Hurting Wyoming's Budget." From the long story:

INDIANAPOLIS — Lower prices from a shale-gas boom make the 30-year deal Gov. Mitch Daniels' administration negotiated with the developers of the Rockport, Ind. coal-to-gas plant looks increasingly risky, Vectren Corp. officials say.

They intend to make that case to state lawmakers Tuesday, as a key Indiana House panel considers a measure to extend a tax credit to the Rockport plant's developers. Vectren officals also plan to make clear that price changes from the deal apply to just residential and commercial ratepayers, and not large industrial consumers.

Under the 30-year contract, the price has some room to increase over time, but would start at about $6 per million BTU. Right now, that much natural gas sells for $3. Estimates are wide-ranging, but Vectren officials say they believe the price will stay low.

As a result, Vectren officials say customers could pay more for the synthetic natural gas produced in Rockport than for gas bought on the open market. The gas from Rockport will make up about 17 percent of their bills. * * *

A measure advancing during this year's legislative session – Senate Bill 344 – would exempt large industrial consumers from having their rates affected by the Rockport deal – something developers already thought was the case.

That measure is scheduled for a hearing before the House Ways and Means Committee as soon as Tuesday, and Ulrey said he plans to argue that lawmakers should not exempt anyone. Roeder said such an exemption would "pick customer classes that win and lose."

Republican Rep. Suzanne Crouch of Evansville, the House Ways and Means vice chairwoman, said she intends to offer an amendment to the bill that would have industrial customers pay for the Rockport plant's gas just like residential customers would.

She said her outlook has changed since the Indiana General Assembly first green-lighted the plant in 2007.

SB 344 (Feb. 1 printing) is a 71-page bill "Concerning state taxation" that currently, according to the digest, contains provisions such as:It also includes the following:The above provisions can be found on pp. 51-52, and pp. 67-68 of the Feb. 1 printing [note that page references are to the PDF document, not to page numbers on the bill].

SB 344 is on the agenda of the House Ways & Means Committee, meeting this morning at 9:00 AM in Rm. 404. Watch it here - select House W&M from pull-down menu..

Posted by Marcia Oddi on Tuesday, February 14, 2012
Posted to Indiana Government

Monday, February 13, 2012

Ind. Gov't. - "Natural Gas Prices Plunge, Hurting Wyoming's Budget"

That is the title to this story by Bob Beck was on NPR's Morning Edition this morning. The intro:

Wyoming's decade-long economic boom has been driven by the extraction of coal and natural gas. But now there's a glut of natural gas and prices have plummeted. That is stalling the local economy and slicing state tax revenues.
This evening on All Things Considered a story headed "Natural Gas Boom Energizing The Chemical Industry" that reports:
U.S. chemical companies are the latest beneficiaries of the nation's natural gas drilling boom. Long focused on cheap gas sources elsewhere in the world, companies are now looking to expand here. A surplus of natural gas has pushed down prices, making it more attractive for chemical companies that use lots of gas to reopen shuttered plants and build new ones.

Sleepy rural communities across the country are turning into industrial zones — and that worries people who live nearby. But the boom is good news for manufacturers that need cheap, plentiful supplies of natural gas.

The focus of both stories is the impact of the future long-term abundance of cheap natural gas.

Meanwhile in Indiana, as we are reminded this evening by a story from Lesley Weidenbener in The Statehouse File, the State is entering into a 30-year commitment with a company that plans to build a plant to manufacture synthetic gas from coal. From the story, which is headed "Indiana utility says lawmakers should revisit Rockport synthetic gas plant:"

Officials from Evansville-based Vectren Energy are lobbying lawmakers to rethink a deal authorizing construction of a $2.6 billion plant that will turn coal into synthetic natural gas and pass along the savings – or the losses – to Hoosier utility customers. * * *

[T]hey have been privately distributing information at the Statehouse for nearly a week, telling lawmakers that the deal might have made sense when the General Assembly wrote it into law five years ago. But now, Vectren officials say, the increasing development of shale gas – which is more widely available across the country – has driven prices so low that the coal-to-synthetic gas process can’t compete. * * *

Vectren officials say that the recent emergence of shale gas – which is exhumed from the ground through a process called hydraulic fracturing – has driven prices lower.

Mike Roeder, Vectren’s vice president for government affairs, produced a map meant to show that the United States has enough shale gas to supply the nation for 100 years. That has stabilized what had previously been a volatile natural gas market, kept prices lower and led to projections that those prices will stay low into future years, Roeder said. * * *

[Mark Lubbers, a former advisor to Gov. Mitch Daniels who is overseeing the project for Leucadia National Corp.] said that the marketplace will eventually push the cost of shale to that point and SNG will compete.

Vectren officials “are out there speaking with legislators, I’m told, on the basis they believe this might be a bad deal for consumers,” Lubbers said. “It boggles the mind.”

Here is a long list of earlier ILB entries on the proposed Rockport coal gasification project.

Posted by Marcia Oddi on Monday, February 13, 2012
Posted to Indiana Government

Ind. Courts - CJ Shepard retires March 4th. Then what happens? Some thoughts

CJ Shepard is retiring effective March 4th, 2012. This month the Supreme Court is hearing several high profile cases:

The process has begun to select a new justice. But the earliest the Judicial Nominating Commission can settle on three names to nominate to the Governor is Feb. 22nd. The paperwork to officially submit the names could take until the end of February.

Once the Governor receives the names, he has two months to act.

Meanwhile, there will be no new Chief Justice [although J. Dickson will become "acting CJ"] unless the Commission meets to select one. But that process itself takes time, as only sitting justices are eligible and must formally submit applications for the position. Furthermore, it is expected that the Commission will wait until a new fifth justice has been seated to begin this process.

As Prof. Joel Schumm noted to me: "There was only a gap of about three weeks between Boehm and David. This gap could be more like 2-3 months, and toward the end of their fiscal year when they usually issue a bunch of opinions."

What happened when Justice Boehm retired, effective Sept. 30, 2010?

At least four opinions issued Oct. 5, 2010 were signed by Justice Boehm.*

Justice David was sworn in Oct. 18, 2010. He heard his first arguments on Oct. 20, 2010. J. David, as I recall, participated in some opinions where he had not heard the oral argument, but was able to watch the webcasts, just as the CJ did when he was sidelined with a neck problem.

Since I began writing this post, the IBM case, heard just this morning, which is cited at the beginning of this post, has been decided by the Supreme Court. A knowledgeable observer tells me: "I would hazard a guess they will act quickly on each of the recent cases they took."

______
*And, odd at least to me, was Bruce Lemmon, et al. v. Michael L. Harris, an 18-page, 4-2(!) opinion with "Boehm, J. disenting", dated June 28, 2011. I quote the dissent in this entry. [Note: A look at the online case today no longer has Boehm's name... This shows something else I've worried over before, how (unlike paper versions) online versions of legal documents may be altered with no trace...]

Posted by Marcia Oddi on Monday, February 13, 2012
Posted to Indiana Courts

Ind. Decisions - Supreme Court reverses Judge Dreyer in IBM case

Yes, it was argued just this morning. I was just putting together a post on "what happens after the CJ leaves?" This takes care of one of the cases.

Here is the "Order Reversing Trial Court Order." The Court writes:

Having considered the written submissions and having heard the arguments of counsel, the Court REVERSES the order of the trial court, concluding that the trial court's order is contrary to Indiana Code section 34-29-2-1. The Court will issue a written opinion in due course explaining more fully its reasons for reversing the trial court's order. The time to seek rehearing will commence from the date the Court's opinion is issued. The pendency of these matters in this Court does not stay the proceeding in the trial court.
The Order is signed by CJ SHEPARD, "DICKSON, RUCKER, and DAVID, JJ., concur. SULLIVAN, J., concurs in result."

Posted by Marcia Oddi on Monday, February 13, 2012
Posted to Ind. Sup.Ct. Decisions

Law - More on: The U.S. Constitution out of date, no longer the model for other countries

Updating this ILB entry from Feb. 8th, Harvard Law Prof. Noah Feldman writes today in a Bloomberg column, headed "Ginsburg’s Right, U.S. Constitution Is a Bad Model." A sample:

Justice Ruth Bader Ginsburg has spent the last two weeks in hot water for telling an Egyptian TV interviewer that Egypt might do better to emulate the up-to-date South African constitution rather than our 223-year-old model.

Why the uproar? It is not only that shameless politicians today will take any opportunity to criticize any public figure identified with the other party -- even a 79-year-old justice who is a legitimate national hero. The worry goes deeper, to the roots of America’s present insecurity and fear of its own decline.

A study
to be published this summer in the New York University Law Review shows that the U.S. Constitution is now copied less frequently by countries writing new constitutions than in the immediate aftermath of World War II, the peak measured by the study’s authors, David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia.

The implicit fear, made manifest by a posse of commentators, is that our constitutional “soft power” is in decline -- much as our hard power is perceived to be faltering.

Fortunately, this worry is unfounded. A better measure of the influence of the U.S. model would be to study how much other countries copy our constitutional system, not the literal text of our Constitution. By that standard, the Philadelphia consensus is more influential than ever.

Consider judicial review, undoubtedly the fastest-growing trend in new constitutions around the world. The practice of justices reviewing legislation and being able to overturn measures they deem in violation of the constitution was born in the U.S. It represents a radical innovation in constitutional design. And everyone seems to love it -- even Islamists who think that their constitutional courts should review legislation to make sure it conforms to the values of Islamic law.

But the words “judicial review” appear nowhere in the U.S. Constitution. The practice is an innovation introduced in 1803 by the Supreme Court under Chief Justice John Marshall in the now famous case of Marbury v. Madison. Marshall claimed that judicial review was required by the very structure of a written constitution with a judiciary charged to “say what the law is.” Yet this itself was an act of interpretation, one that has not been uncontroversial in our history. And the Supreme Court exercised this power extraordinarily sparingly until the modern era.

Posted by Marcia Oddi on Monday, February 13, 2012
Posted to General Law Related

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

In St. Paul Fire & Marine v. Schilli Transportation (ND Ind., Rodovitch), a 24-page opinion, The Honorable Sue E. Myerscough of the Central District of Illinois, sitting by designation, writes:

In this diversity action, the district court granted summary judgment in favor of the plaintiff. The district court rejected the defendants’ contention that the insurance policy at issue was ambiguous and concluded that the policy imposed joint and several liability on the defendants for the payment of the deductible called for under the policy. Because we conclude the insurance policy was ambiguous as to the nature of the defendants’ liability for the deductible, we reverse and remand.

Posted by Marcia Oddi on Monday, February 13, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Briefs in IBM case re compelling Gov's testimony?

Oral argument was heard at 9 this morning in State of Indiana v. International Business Machines Corporation. See earlier post here. You may watch the video of the argument here.

The ILB is attempting to obtain and post the briefs in the case. The AG's office has provided its brief, but the ILB does not have the briefs of the parties, IBM and the State/FSSA. Help would be appreciated.

Posted by Marcia Oddi on Monday, February 13, 2012
Posted to Indiana Government

Law - NYT editorializes on ALEC, says its "influence is pervasive"

"The Big Money Behind State Laws" is the headline of today's NY Times editorial. Some quotes:

It is no coincidence that so many state legislatures have spent the last year taking the same destructive actions: making it harder for minorities and other groups that support Democrats to vote, obstructing health care reform, weakening environmental regulations and breaking the spines of public- and private-sector unions. All of these efforts are being backed — in some cases, orchestrated — by a little-known conservative organization financed by millions of corporate dollars. * * *


ALEC has written model legislation on a host of subjects dear to corporate and conservative interests, and supporting lawmakers have introduced these bills in dozens of states. * * *

The group has been particularly active in weakening environmental regulations and fighting the Environmental Protection Agency. ALEC’s publication, “E.P.A.’s Regulatory Train Wreck,” outlines steps lawmakers can take, including curtailing the power of state regulators.

There is nothing illegal or unethical about ALEC’s work, except that it further demonstrates the pervasive influence of corporate money and right-wing groups on the state legislative process. There is no group with any comparable influence on the left. Lawmakers who eagerly do ALEC’s bidding have much to answer for. Voters have a right to know whether the representatives they elect are actually writing the laws, or whether the job has been outsourced to big corporate interests.

The ILB has a number of earlier entries on ALEC. See, for example, this one from Dec. 11, 2011 and this one from July 17, 2011.

Posted by Marcia Oddi on Monday, February 13, 2012
Posted to General Law Related

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

Updating this entry from Sunday, the ILB has received this note from a well-known Fort Wayne attorney:

Marcia, re the Maxim story:

Holy S**t!

Reminds me of some frat house events way back when. I thought those days were over.

Jim Fenton

Posted by Marcia Oddi on Monday, February 13, 2012
Posted to General News

Ind. Decisions - Transfer list for week ending February 10, 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, February 10, 2012. It is two pages (and 28 cases) long.

Four transfers were granted last week. Two are emergency transfers from trial court that we already know about. The other two are also cases in which there is a great deal of interest:

Posted by Marcia Oddi on Monday, February 13, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Bloomington Magazine, Inc. v. Mark Kiang d/b/a Mikado Restaurant, Sunbeam Corp., and Truffles 56 Degrees Incorporated, a 12-page opinion, Judge Brown writes:

The crux of Bloom's contention is that Attorney Grodner's position as chairman of Judge Haughton's 2008 election campaign presented a situation such that her impartiality during trial might reasonably be questioned, that her failure to disclose this information in advance of trial was to be the subject of the December 2, 2010 hearing on Bloom's Motion to Set Aside, and that accordingly she should have granted its Motion to Recuse in advance of that hearing. In evaluating whether Judge Haughton abused her discretion in denying Bloom's motion, we find certain cases, discussed below, instructive. * * *

Here, we find that the professional relationship between Judge Haughton and Attorney Grodner, in which Grodner served as the chairman of Judge Haughton's 2008 election committee, was not so remote in time so as to dispel the appearance of an impropriety such that a reasonable person would have a rational basis for doubting her impartiality. We find particularly relevant that Grodner's appearance in this matter was filed in February 2009, which was three months following the election at issue. Despite the fact that the Motion to Recuse was filed in August 2010, that motion requested recusal from a Trial Rule 60(B) hearing concerning Judge Haughton's failure to recuse herself from a hearing taking place months earlier, in November 2009, at which Attorney Grodner had represented Kiang. Also, the chronological case summary reveals that following the filing of his appearance and leading up to the bench trial, Grodner filed documents in this matter in Judge Haughton's court in March 2009, April 2009, June 2009, and August 2009. We also note that the Motion to Recuse itself was filed within two years of the 2008 election.

Thus, we conclude that the trial court abused its discretion by denying Bloom's Motion to Recuse from hearing the Motion to Set Aside, and accordingly we remand for a hearing on Bloom's Motion to Set Aside to be heard by a special judge in accordance with Ind. Trial Rule 79.

For the foregoing reasons, we reverse the court's denial of Bloom's Motion to Recuse, and we remand for proceedings consistent with this opinion.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Ayoade Adewopo v. State of Indiana (NFP)

Rashad A. Bentley v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 13, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Charlie White attorney reportedly has mild heart attack [Updated]

WRTV 6 is reporting Carl Brizzi had mild heart attached, but expected to be released tomorrow.

Impact on deadlines for oral argument?

[Updated] A reader writes NO. "Just saw your question re Brizzi's heart attack impacting 'oral argument.' I think you mean sentencing (Feb. 23rd) because Brizzi is not Charlie's civil attorney."

Posted by Marcia Oddi on Monday, February 13, 2012
Posted to Indiana Courts

Ind. Law - Upcoming seminar on merit selection of appellate court judges

On Thursday, April 5, 2012: an Indiana Law Review Symposium - Reflecting on Forty Years of Merit Selection

CLE: 6.0 Hours. There is no fee to attend this event but registration is required.

More information here.

8:30 a.m.Welcome from Dean Roberts
8:40 a.m.Welcome and Introduction of Mr. Robinson by the Honorable Frank Sullivan, Jr., Indiana Supreme Court
9:00 a.m. Keynote Speaker: ABA President Wm. T. (Bill) Robinson III
9:30 a.m. The Honorable Edward W. Najam, Jr., Indiana Court of Appeals: “Merit Selection in Indiana: The Foundation for a Fair and Impartial Appellate Judiciary”
10:15 a.m.Break
10:30 a.m. Mr. K.O. Myers, Director of Research & Programs, American Judicature Society, "Diversity in Merit Selection Systems"
11:00 a.m.
"Retention Elections after Iowa 2010" (panel discussion)
  • The Honorable Marsha Ternus, (former) Chief Justice of the Iowa Supreme Court
  • The Honorable Theodore Boehm, Indiana Supreme Court (retired)
  • Bert Brandenburg, Executive Director, Justice at Stake
  • Professor Penny White, University of Tennessee College of Law

Moderator: The Honorable Melissa S. May, Indiana Court of Appeals

12:30-1:30 p.m.Lunch
1:30 p.m. Mr. James Bopp, Jr., Bopp, Coleson, & Bostrom: "The Perils of Merit Selection"
2:15 p.m. Professor Penny White, University of Tennessee College of Law, "Recusal Reform: An Antidote to Citizens United and White"
3:00 p.m.Break
3:15 p.m."Should Indiana Merit Selection Be Trumpeted, Tweaked, or Trashed? – The Governors’ Counsels" (panel discussion)
  • Mr. John Whitaker, Citizen’s Energy Group, (former) Counsel to Gov. Orr
  • The Honorable Jane Magnus-Stinson, Southern District of Indiana, (former) Counsel to Gov. Bayh
  • Mr. Jon Laramore, Faegre, Baker Daniels, (former) Counsel to Gov. O’Bannon and Gov. Kernan
  • Mr. David Pippen, Bose McKinney, & Evans, (former) Counsel to Gov. Daniels

Moderator: The Honorable Tim Oakes, Marion Superior Court

ILB: This promises to be outstanding! I, for one, am not going to miss it, I've already sent in my registration.

Posted by Marcia Oddi on Monday, February 13, 2012
Posted to Indiana Law

Ind. Gov't. - More on: "State won't release toxicology lab results: Only prosecutors told what retesting of samples revealed"

Recall this ILB entry from Feb. 4, 2012, Super Bowl Eve. It began:

Buried deep inside this morning's Indianapolis Star, on Super Bowl weekend, is this story by Tim Evans, who has covered the toxicology lab issues since 2010 (see list of ILB entries).
Shortly thereafter, the ILB received this note from an attorney-reader that began:
Hi Marcia: I read your post on the Dept. of Toxicology audit, and I am pretty upset. When we were talking about problems with marijuana testing, that was one thing. The worst you're looking at there is a Class C felony. But now we're talking about the possibility of a false positive for cocaine. That's serious time. There could be defendants sitting in prison right now for convictions that were wrongfully obtained.

I am disgusted by the decision not to release the results of the audit. Why do they think they can get away with this? Releasing them only to the prosecutors, so we have to hope that the prosecutors do the right thing and alert people? That's ridiculous.
Yesterday, Feb. 12, WTHR 13 posted an "update" on the situation, headed "Indiana withholds results of drug lab retesting." It begins:
Results of about 500 blood samples that were reexamined as part of a probe of drug testing problems at the state toxicology lab aren't being made public even though they've been shared with prosecutors.

The Indianapolis Star's reports the State Toxicology Department has denied its public-records request for the results.

Here is another story, this one from the Feb. 12th Lafayette Journal-Courier, based on last week's Star story.

Posted by Marcia Oddi on Monday, February 13, 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?

From Sunday, February 12, 2012:

From Saturday, February 11, 2012:

Posted by Marcia Oddi on Monday, February 13, 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 2/13/12):

Monday, February 13th

Next week's oral arguments before the Supreme Court (week of 2/20/12):

Friday, February 24th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/13/12):

Wednesday, February 15th

Thursday, February 16th

Next week's oral arguments before the Court of Appeals (week of 2/20/12):

Tuesday, February 21st

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, February 13, 2012
Posted to Upcoming Oral Arguments

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.

Vouchers

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.

Status:
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.

Status:
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.

Status:
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

Friday, February 10, 2012

Ind. Law - District 33 voters overwhelmingly favor marijuana decriminalization

See the results of State Senator Greg Taylor's survey, Question 4.

4. Choose the option that most closely reflects your position on Indiana’s marijuana policies:
  • Marijuana should remain illegal with the current penalties. -- 12%

  • Possession of small amounts of marijuana should be legal, including medical marijuana. -- 13%

  • Only medical marijuana should be legal. -- 13%

  • Marijuana should be treated like alcohol, with restricted sales and excise tax. -- 61%
Recall that State Sen. Karen Tallian has been working on at least reducing the criminal penalties for marijuana for several years now. See this ILB entry from Jan. 29, 2012. See also this July 28, 2011 ILB entry about testimony at a legislative study committee last summer.

Posted by Marcia Oddi on Friday, February 10, 2012
Posted to Indiana Law

Environment - "Rural Bloomfield company specializing in 'meth lab' clean ups"

From the Greene County Daily World, a long story by Nick Schneider, Assistant Editor, looks at:

A rural Bloomfield company -- Crisis Cleaning -- specializes in meth lab clean-ups in a five-state area.

Officials say business is going well -- a direct by-product of the continuing meth epidemic that is plaguing rural areas across the nation.

A division of English Construction Company, Crisis Cleaning was founded as a sister company in 2001 by company CEO Donetta Held and featured death and crime scene cleaning in its infant years.

The company still handles those kinds of cases, but in 2006, at the urging of sheriffs from throughout the state, the business expanded to do certified meth lab clean-ups.

Today, the company is on-call 24 hours a day for clients in Indiana, Michigan, Illinois, Ohio and Kentucky. Business has flourished enough to open satellite offices in Evansville, Fort Wayne, and Lewis Center, Ohio.

Crisis Cleaning receives referrals from county sheriffs, other law enforcement agencies and county health departments for their specialized service focused on meth labs. They are one of about half dozen firms throughout Indiana that do this kind of work.

More from the story - readers may recall that the Indiana law referenced has been contentious because of cost:
The company got a real boost when the state of Indiana enacted a law governing the clean-up of illegal drug labs.

"The majority of our work does come from Indiana," [Crisis Cleaning CEO Donetta Held] said. "With Indiana, the law passed in March of 2007 so when police bust a house, the police have to notify the county health department and then the health department sends a letter to the property owner demanding that they clean up the property and have it tested. With the new law, you (a clean-up firm) had to be certified and listed with the Indiana Department of Environmental Management (IDEM)."

More from the lengthy article:
The company is busy in Vanderburgh County (Evansville) where a state top 116 labs were seized in 2011. In addition, business has been good in the Bedford, Columbus, Kendallville, Fort Wayne, and Elkhart areas.

"Unfortunately it's such a growing problem everywhere," Held said. "I was surprised that how many people didn't realize that with a meth lab they think once the police take the chemicals out of there, that is all that there is to do. They don't realize that with the cooking, and the manufacturing, or the smoking, what hazard is left in the property for anybody who would move in it."

Held wrote a book "The Meth Solution" in 2009 and it is a step-by-step guide to methamphetamine decontamination.

"A lot of our business is from rental property, from landlords. The tenant is the one that did the meth lab, but the owners are responsible."

ILB: There is much more worth reading in the article. See also this Dec. 4, 2010 ILB entry headed "Meth law cleanup costs can be staggering for an unwitting property owner," along with the links at the end of the entry.

Posted by Marcia Oddi on Friday, February 10, 2012
Posted to Environment

Law - "From Biglaw to Boutique: ‘There’s a Practice Guide for That’ "

Interesting article today by Tom Wallerstein writing for Above the Law.

Posted by Marcia Oddi on Friday, February 10, 2012
Posted to General Law Related

Ind. Decisions - Apparently it takes a while for news to travel from Chicago to South Bend

Updating this ILB entry from Feb. 7th, summarizing the 7th Circuit opinion by Circuit Judge Posner in the case of Roy Wirtz v. City of South Bend (aka "the Family Dollar case"), the SB Tribune reports today that:

A federal appeals court has upheld a local judge's ruling on the Family Dollar deal.

The City of South Bend appealed the case after a federal judge ruled the city could not sell the store property to the new St. Joseph's High School for $1. The judge said the deal amounted to a gift to a religious institution.

South Bend said it filed the appeal for clarification on how to deal with religious institutions in the future. The Appeals Court didn't touch that issue.

The Court ruled this week the city of South Bend's appeal was untimely and that the controversy no longer exists, since the Diocese wound up buying the land at a public auction.

Posted by Marcia Oddi on Friday, February 10, 2012
Posted to Ind. (7th Cir.) Decisions

Vacancy on Supreme Court 2012 - Stories today on the results of Round #1

"Region magistrate not selected as semi-finalist for Indiana Supreme Court vacancy" is the heading to this NWI Times story by Dan Carden, writing again about Lake County Magistrate Michael Pagano. Carden concludes his story by finding region connections:

The commission did not explain why individual candidates were not selected as semi-finalists.

At age 41, Pagano was the youngest applicant -- and a man seeking a spot on one of three state supreme courts in the nation with no female justices.

Northwest Indiana is already represented on the state Supreme Court by Justice Brent Dickson, a Hobart native, and Justice Robert Rucker, a Gary native.

The seven remaining candidates include Jane Seigel, 57, executive director of the Indiana Judicial Center. Siegel lived in Hammond as a child for six years though now lives in Indianapolis.

Three stories find southern Indiana connections:

First, "Floyd judge named semifinalist for Indiana Supreme Court: Seven applicants, including Maria Granger, survive the first round of cuts" reported Matt Thacker last evening in the New Albany News & Tribune. From the story:

“I certainly am just elated to be able to represent this part of the state and Floyd County in particular,” Granger said. “I think it’s an honor and privilege.” * * *

Granger, 42, said she decided to apply after discussions with her family and close friends.

“I care enormously about my judicial service, and I want to expand my work statewide,” she said.

Granger was interviewed Wednesday afternoon. She said all the members of the nominating commission were gracious and courteous, which made her feel comfortable during the interview.

Granger submitted a 26-page application. She has previously served as deputy prosecuting attorney in Floyd and Clark counties. She worked at Granger Law Office in New Albany from 2003 through 2008, when she was elected judge of a newly created court in Floyd County.

In her application, Granger wrote about bringing diversity to the bench in Southern Indiana, overcoming the challenges of starting a new court, helping struggling families and creating a Veterans Court.

Second, Harold J. Adams' story in the Louisville Courier Journal reports:
The man heading the Louisville and Southern Indiana Bridges Authority and a Floyd County judge were named Thursday as two of seven semifinalists to fill a vacant position on the Indiana Supreme Court.

Steven Schultz, executive director of the bridges authority, was named along with Floyd Superior Court Judge Maria Granger. * * *

At 42, Granger is the youngest of the seven candidates to fill the vacancy being created by the planned March retirement of Chief Justice Randall Shepard. She was elected to the bench in 2008. The average age of the four men and three women is 50.

Schultz, 46, has run the authority overseeing the project to build two new bridges across the Ohio River and reconfigure Spaghetti Junction for the past two years. The Columbus resident has previous experience in banking and private legal practice.

Third, from the Evansville Courier & Press, a story by Eric Bradner headed "Evansville attorney misses cut for Indiana Supreme Court seat."

From Indianapolis, the Star continues with another pedestrian story about the selection process.

Finally, WIBC has this brief story by Eric Berman. Indiana Public Media has this story. Both include this odd paragraph:

The other semifinalists are Floyd Superior Judge Maria Granger and Indiana Judicial Center Executive Director Jane Seigel. Either would be Indiana’s second woman justice, following former Justice Myra Selby.
Perhaps the reporter did not recognize that Marion Superior Judge Robyn Moberly also "would be Indiana’s second woman justice." The story also might have pointed out that the term of former-Justice Selby, Indiana's only woman justice, ended over a dozen years ago, and that she served for less than five years.

Posted by Marcia Oddi on Friday, February 10, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In Commissioner of the Indiana Dept. of Insurance v. Tim Black, as Husband and Personal Rep. of Kay Black, Deceased, an 18-page opinion, Judge Riley wrties:

Appellant-Defendant, the Commissioner of the Indiana Department of Insurance (the Commissioner), appeals the trial court’s denial of his motion to dismiss and its order granting Appellee-Plaintiff’s, Tim Black (Black), as husband and personal representative of Kay Black, deceased, Petition for Payment of Damages from the Patient’s Compensation Fund in an amount of $1,000,000.00. * * *

Issue. Whether the trial court properly denied the Commissioner’s motion to dismiss, concluding that Black satisfied the conditions precedent for access to the Patient’s Compensation Fund (PCF) as outlined in Ind. Code § 34-18-15-3. * * *

Based on the foregoing, we hold that a genuine issue of material fact exists whether Black has satisfied the condition precedent for access to the PCF pursuant to I.C. § 34-18-15-3. Reversed and remanded for further proceedings.

NFP civil opinions today (2):

Westfield National Insurance Company v. Charlotte Nakoa, Warren E. Rigg, Steven L. Rigg, and Larry D. Rigg (NFP)

Gregory J. Mills v. Dean Kimbley (NFP)

NFP criminal opinions today (1):

Robert O. Caruthers, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 10, 2012
Posted to Ind. App.Ct. Decisions

Thursday, February 09, 2012

Ind. Decisions - 7th Circuit draws line on proximate cause, at least in Illinois

In David Blood v. VH-1 Music First, an 11-page opinion, Judge Kanne writes:

Dennis Hernandez caused a severe automobile accident in Southern Illinois that closed northbound I-57 for several hours. The resulting traffic jam stretched at least four and one-half miles. With traffic still not moving four hours later, truck driver Milinko Cukovic rear-ended David Blood’s vehicle. Among others, Blood brought a personal-injury suit against Hernandez and several related entities on the theory that Hernandez proximately caused the second accident. Unconvinced, the district court entered summary judgment for Hernandez and the other defendants. We affirm. * * *

We recognize, as did Justice Frankfurter in his Pearce v. Comm’r dissent, that “[i]n law as in life lines have to be drawn,” 315 U.S. 543, 558 (1942), and drawing a line for purposes of proximate cause is no different, see W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 41, p. 264 (5th ed. 1984) (“As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act . . . .”). In Illinois, we duly recognize that drawing the line for proximate cause is usually a task for the factfinder. But, this case presents a set of facts nowhere near that line. To allow this case to continue beyond summary judgment opens the door to endless liability, such that the first wrongdoer in a highway accident will forever be liable to all other drivers that follow. This is plainly a result that proximate cause analyses are designed to avoid. Thus, we find, as a matter of law, that the Hernandez defendants did not proximately cause Blood’s injuries and reasonable jurors “could not differ as to the inferences to be drawn from those facts.” Harrison, 758 N.E.2d at 854.

III. CONCLUSION

We hold that the Hernandez defendants did not proximately cause David Blood’s injuries, and as such we AFFIRM the district court’s grant of summary judgment for the defendants.

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "City/state nexus in the Charlie White saga"

Check it out at Jon Murray's blog, Deep Fried Politics.

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Indiana Government

Vacancy on Supreme Court 2012 - Answer to "Who moves on to next round?"

I'm told the public vote of the Judicial Nominating Commission will be taking place shortly now ...

Unfortunately, Prof. Schumm won't be there to watch, as he had to return to his law school duties, after his great coverage of the 15 interviews over the past two days.

Here are the seven names:
Altice, Bradford, Moberly, Granger, Massa, Seigel and Schultz named as semi-finalists.

Four judges: Altice, Bradford, Moberly, Granger

Three women: Moberly, Granger, Seigel

One finalist from last time: Moberly

[MORE] Here is the official press release. Final interviews for the seven semi-finalists and the selection of three names to nominate to the Governor will take place on Thursday, Feb. 22, 2012.

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Law - "General Assembly is back in session to tackle legislation that had been bottlenecked by a contentious labor bill"

So writes CNHI's Maureen Hayden in a story about what to expect next from the assembly. A sample:

After signing [Right to Work], Daniels said he hoped the second half of the 2012 session “might be a time for some conciliation.”

Daniels wants legislators to concede to some more of his wish-list items as they head toward their mandatory March 14 deadline for the session’s end.

That includes a statewide smoking ban, local government reform, more state dollars to victims of last summer’s State Fair stage collapse and a “credit creep” bill that would reduce college costs by capping the required credit hours needed to earn a degree.

But there are other bills that are being pushed forward by lawmakers. They range from eliminating the state’s “death tax” to exempting chicken farmers from some federal food rules.

Here’s a sampling of some of the legislation still alive in the General Assembly....

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Angus Toney v. State of Indiana, a 7-page opinion, Judge Mathias concludes:

The evidence was sufficient to establish that Toney’s actions resulted in bodily injury to the victim because there was evidence that she experienced physical pain. This is all that is statutorily required to establish bodily injury. The evidence was therefore sufficient to convict Toney of Class A felony burglary resulting in bodily injury.
NFP civil opinions today (1):

Shannan D. Deneve v. Billy Joe Shambarger (NFP)

NFP criminal opinions today (1):

Terry Drake v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Ind. App.Ct. Decisions

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

In Booker-El v. Sup., Ind. State Prison (ND Ind., Miller), a 10-page opinion, Judge Kanne writes:

Sammie L. Booker-El, an inmate incarcerated in Indiana State Prison, alleges that prison officials misappropriated funds intended by statute to be used for the inmates’ benefit without due process of law. The district court dismissed Booker-El’s complaint, finding that he did not have a protected property interest in the funds. We affirm.

As required by state law, Indiana State Prison maintains an inmates’ recreation fund. See Ind. Code § 4-24-6- 6(a)(3). * * *

Because we find that Booker-El has no property interest in the inmates’ recreation fund, we AFFIRM the judgment of the district court.

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Ind. (7th Cir.) Decisions

Vacancy on the Supreme Court - Photos of all the candidates' interviews over past two days

Access here.

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Who moves on to next round?

Out of the 15 men and women interviewed yesterday afternoon and this morning by the Nominating Commission, several will be selected to move on to the second round of interviews, scheduled for two weeks from now.

How many we won't know until the announcement, two years ago the Commission selected 9 out of 34 applicants...

The Commission, if proceeding according to its schedule, began deliberations in executive session at 11:50 a.m.

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Day 2: Report on the final 3 interviews

This is Prof. Schumm's report on the final three interviews of Day 2

Ms. Jane Seigel, Indianapolis (photo) (application)

In response to the opening question, Ms. Seigel said she loves her current job—probably the “second greatest in the state”—but would like to be part of the Indiana Supreme Court and its leadership of the judicial branch.

In response to a question from Mr. Ulmer, Ms. Seigel described how her work as the judicial center would help inform her work on the Court. The judicial center is not limited to one subject matter and must appreciate all areas of the law. The center also provides research and other support to judges.

Mr. Winningham asked if Ms. Seigel knew of anyone with a similar background who has joined a state supreme court. She mentioned Chief Judge Jonathan Lippmann from New York. In response to a question about consensus building, she likes to bring along those in her office as part of a team and come to an agreement on important issues.

Mr. McDonald asked if the Chief Justice is a “macro” or “micro” manager, and Ms. Seigel responded he was a “marvelous” manager. He may set out the vision but allows people to contribute and be part of the team.

In response to a question from Ms. Northernor, Ms. Seigel said the public should expect judges to be fair and impartial, good listeners, and to take deciding each case very seriously. She also emphasized collegiality.

Ms. Kitchell asked about Ms. Seigel’s experience in making decisions instead of her current more supporting role to the justices, and Ms. Seigel said it would be hard work but she would look to precedent and possibly other states and would engage in discussion with her colleagues and her law clerks.

Ms. Seigel explained some of her work with other branches of government, including the adoption of a risk assessment instrument (which required working with the Department of Correction) and the funding of juvenile placements (with the Department of Child Services).

Mr. McCashland asked why the Indiana Supreme Court has become a nationally recognized institution, and Ms. Seigel responded that the quality of the individuals and the Court’s opinions, specifically mentioning Malenchik v. State, the first case nationally to uphold the use of risk assessment instruments, which has since been cited by other courts.

Mr. Steven Schultz, Columbus (photo) (application)

In response to the opening question, Mr. Schultz cited the Chief Justice’s retirement announcement about the “remarkable public service opportunity” to join the Court. He believes his public servant mentality comes from his family and his work for Gov. Bob Orr. He chose Yale Law School in part because it is known for public service among its graduates.

In response to a question from Ms. Kitchell, Mr. Schultz described the opportunity to leave Irwin Financial to join a large firm but decided to stay at Irwin through a difficult time.

In response to a question from Ms. Northernor, Mr. Schultz described the most complex legal matter with which he has been involved as the Indiana-Kentucky bridges project. The Chief Justice later asked about the Sovereign Specialty Chemicals Inc.’s Acquisition of Worldwide Specialty Adhesives and Coatings Business of Croda International plc case in which he was a senior associate in Fried Frank’s London office and had “first chair” responsibilities.

Mr. McCashland asked what Mr. Schultz would be if he were not an attorney, and Mr. Schultz noted his interest in “creative film.” He was a history major at Butler and interested in storytelling, specifically mentioning the movie Saving Private Ryan.

In response to a question from Mr. Winningham about his lack of experience in presenting legal issues before courts, Mr. Schultz emphasized his experience before corporate boardrooms and administrative agencies. His experience would be a nice complement to the skills of the current justices. In response to a question from Mr. McDonald about the Court’s role in making rules, Mr. Schultz acknowledged he would need to “bone up” on some areas of law but that the bridges’ project had exposed him to highway regulations with which he had no prior experience. He has been called a “quick study.”

Ms. Patricia McMath, Indianapolis (photo) (application)

In response to the opening question, Ms. McMath noted her interest in being a judge since her work as a clerk for the Court of Appeals and her diverse experience in teaching legal writing to law students and appellate work on many different issues. She also noted her many experiences outside the legal realm through raising her four children.

The Chief Justice asked about her transition from a part-time contractual public defender to a full-time position. It was an easy transition that allowed her to continue her family responsibilities. Her prior position brought her cases from counties around the state, but now she does only Marion County case.

Mr. Ulmer complimented Ms. McMath’s writing samples, which focus on the facts and law and don’t take “pot-shots.” He emphasized the need for congeniality, which her writing evinces. Ms. McMath explained that she learned the importance of civility from her work as a Court of Appeals’ clerk and taught the importance of that to law students as an adjunct legal writing professor.

In response to Ms. Northernor’s question, Ms. McMath explained the public should expect judges to listen to both sides, makes a decision based on what the law is (consistency and predictability), and be fair and impartial.

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - "With so much confusion surrounding the case, the state Supreme Court was right to make it a top priority"

So concluded the Fort Wayne Journal Gazette in an editorial published yesterday, Feb. 8th, re the Charlie White case. The editorial begins:

With complex legal issues surrounding the question who will replace Charlie White as Indiana secretary of state, the Indiana Supreme Court rightly stepped into the case late Tuesday afternoon.
More:
The underlying issue is who decides White’s successor.

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Indiana Government

Vacancy on Supreme Court 2012 - Day 2: Report on the first 4 interviews

This is Prof. Schumm's report on the first four interviews of Day 2

Ms. Rebecca Trent, West Lafayette (photo) (application)

In response to the opening question from the Chief Justice, Ms. Trent said she had always envisioned a judicial position in her future. When she was twelve years old, she told her friends that she did not want to be President but rather a Supreme Court justice, inspired by the appointment of Justice O’Connor. She emphasized her diverse practice background as providing preparation for work as a justice.

In response to a question about small firm practice from the Chief Justice, Ms. Trent explained that people come to her for many reasons and also want advice beyond strictly legal matters, especially in family law cases.

In response to a question from Mr. Winningham about her path to law school, Ms. Trent explained her undergraduate degree in engineering helped develop her analytical skills and was interesting and different from the usual path.

In response to question from Mr. McCashland about qualities of an ideal justice, Ms. Trent emphasized honesty, integrity, and the importance of opinions that let the parties know their arguments have been heard, understood, and carefully considered.

In response to a question from Ms. Kitchell about her work as part of a team, Ms. Trent emphasized her work as a guardian ad litem, where many people must work together in “team meetings” to come up with the best solution for a child.

In response to questions from a number of commissioners, Ms. Trent noted her practice experience was more diverse than family law and included criminal, tax, estate, and other areas, all of which come before the Court.

The Chief Justice observed that Ms. Trent was the only applicant who had served as a juror. Ms. Trent was selected in a criminal case and was impressed with the diligence of the jurors. She was selected as foreman. The verdict was not guilty.

In response to Ms. Northernor’s question about a situation where self-control had been required, Ms. Trent discussed a mortgage foreclosure case with a large request for attorneys fees from opposing counsel. In another case, opposing counsel complimented her for how nice she was in cross-examining witnesses. Getting mad is not going to convince the other side.

Mr. Karl Mulvaney, Indianapolis (photo) (application)

The Chief opened by thanking Mr. Mulvaney for allowing the Commission to “take another look.” Mr. Mulvaney responded to the standard opening question, by explaining his extensive experience as an administrator for the Court and leaving to begin what was the first appellate practice section. Service on the Court would be the “pinnacle” of what an appellate lawyer does.

In response to an early question, Mr. Mulvaney noted that with good health he would stay twelve years until mandatory retirement if appointed to the Court.

In response to a question from Ms. Kitchell about his “lasting legacy,” Mr. Mulvaney cited his work on ethics and professionalism with International Legal Fraternity Phi Delta Phi.

In response to a question from Ms. Northernor, Mr. Mulvaney explained that legislative intent is important in interpreting statutes and “public policy” is only relevant when it furthers clear legislative intent. When pressed by Mr. McDonald about ambiguous statutes, Mr. Mulvaney acknowledged courts sometimes need to fashion a remedy when intent is not clear. The interview was a bit more philosophical than most, including questions about Mr. Mulvaney’s view of constitutional interpretation and separation of powers.

In response to a question from Mr. McCashland about changes in the legal profession during his career, and Mr. Mulvaney discussed the improvements to the system of justice through such things as the creation of the Indiana Judicial Center.

In response to a question from Mr. Winningham, Mr. Mulvaney responded he would bring civility and the perspective from years of private practice to the Court.

Hon. Cynthia Ayers, Marion Superior Court, Civil Division 4 (photo) (application)

The interview did not begin until 9:43, as it appears Judge Ayers was not outside the conference room at 9:40. She offered a very brief response to the opening question, stating she believed she could make a “good contribution” to the Court and asked for a second interview.

In response to a question about her work on foreclosure cases, Judge Ayers noted that things had improved considerably since she began efforts in 2003. She estimated that 27-30% of people are now staying in their homes as the result of improvements, such as mandatory settlement conferences, since then.

In response to a question about her legacy, Judge Ayers emphasized her twenty years of experience as a trial judge, including winning four elections.

When asked if diversity is important on state supreme courts by Mr. Winningham, Judge Ayers said it “certainly” was. People who come before the Court should know that justices have had some of their experiences. Mr. McCashland asked if she would be intimidated by being the only woman with four men; she responded she would not and thought she would work very well with them. Mr. McCashland observed that he and his wife “think very differently”—and Ms. Northernor agreed “absolutely.” [This interview included the most express and detailed discussion of gender diversity in any interview this year or in 2010. In other interviews gender has, at most, arisen in a subtle way.]

In response to a question from Ms. Northernor about temperament, Judge Ayers said she views her role as judge as “extremely important” and makes sure she does not lose her temper in front of lawyers.

In response to a question from Mr. McDonald, Judge Ayers said she may have tried three or four jury trials last year. In terms of moving cases, she explained that she sets ten trials deep and regularly looks at the length of pending cases. She sets a pretrial after six months of discovery.

Mr. Mark Massa, Indianapolis (photo) (application)

Mr. Massa began by noting he had recently seen both the final State of the State from Gov. Daniels and final State of the Judiciary speech by the Chief Justice and was inspired by their commitment and call to public service.

He emphasized his diverse experience as a reporter, speech writer, prosecutor, and counsel to the Governor, including service in all three branches of government. Most recently he has headed two different state agencies. He explained those experiences could be helpful in a Court that leads the third branch of government and does not simply decide cases, including interpreter training, new court rules, and plain English jury instructions.

In response to a question from the Chief Justice about his current work with justice improvement, Mr. Massa emphasized his work with the (1) Juvenile Detention Alternative Initiative (JDAI) and (2) re-entry programs. Mr. Massa explained that we do a good job of “warehousing” criminals, but we have not done the best job of bringing them back into society.

The Chief Justice noted that people who become Assistant U.S. Attorneys usually “cling” to those positions, and asked Mr. Massa why he left. Mr. Massa discussed how rewarding that job had been, but he left when called to work as Gov. Daniels’ counsel.

Ms. Kitchell asked about Mr. Massa’s work on death penalty issues. Mr. Massa said it was the “weightiest” work he had done, and he believed the two people he prosecuted in capital cases were deserving of the ultimate punishment. He has struggled with the issue as a Roman Catholic and believes reasonable people can differ in their views.

In response to a question from Ms. Kitchell, Mr. Massa grew up in a journalism family and went to IU to pursue a journalism degree. His work as a journalist was similar to his work as a prosecutor; each must interview people and put together a story or case.

Mr. Winningham asked about Mr. Massa’s lack of experience in civil cases involving individuals or companies. Mr. Massa cited his work in a number of high pressure cases, mostly criminal but also some civil cases. No judge has seen everything, and he would bring the same sense of fairness and curiosity to every case.

In concluding, Mr. Massa noted Indiana is now, unlike twenty-five years ago, one of the best court systems in the country and he would like to help ensure those improvements continue.

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - "Indiana Supreme Court to hear legislative fines case"

Updating yesterday's ILB entry, which includes a link to the order, here is Chris Sikich's story today in the Indianapolis Star. Some quotes:

The Indiana Supreme Court will decide whether Republicans had the power to fine Democrats in the Statehouse walkout.

The court on Wednesday agreed to hear the state's appeal of a Marion Superior Court's ruling on the fines. Judge David Dreyer on Monday granted a permanent order blocking the state from seizing the pay of House Democrats to cover the fines being imposed for their legislative walkout. He also ordered the state to pay back money it seized from Democrats in 2011. * * *

Attorney General Greg Zoeller appealed Dreyer's ruling to the Indiana Supreme Court, skipping the appellate court. Zoeller also asked the Indiana Supreme Court to allow the state to immediately begin collecting the fines.

Chief Justice Randall Shepard accepted the case, but he ordered the state to refrain from collecting any more fines and to refrain from paying back any fines until a ruling is made.

The state's high court already had been considering whether the Marion County court had jurisdiction, so the two cases will be combined.

Mark GiaQuinta, the Democrats' lawyer, called the case groundbreaking. He said neither he nor the attorney general has found another state-level case in the country where the majority party had collected fines from the minority party's paychecks.

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Indiana Courts

Stage Collapse - "IOSHA issues fines in Indiana State Fair stage collapse"

Several interesting stories today on the IOSHA information released yesterday.

John Tuohy and Tim Evans have a very long story in today's Indianapolis Star. Some quotes:

The first official finding of fault in last summer's deadly stage collapse at the Indiana State Fair cited critical worker safety violations, but the blame is sure to swell as two other investigations near completion and several lawsuits wind through the courts.

An Indiana Occupational Safety and Health Administration report released Wednesday found that the stage scaffolding was not properly erected and soil conditions at the site were not considered at key anchor points -- violations of state workplace safety regulations. The IOSHA probe also found that Greenfield-based Mid-America Sound Corp., the company that owned the scaffolding and supervised the construction, did not inspect the rigging during construction or after it was erected.

"The evidence demonstrated that Mid-America . . . was aware of appropriate requirements and demonstrated a plain indifference to complying with those recommendations," Indiana Department of Labor Commissioner Lisa Torres said at a news conference. The company was cited for "knowing" violations, the most severe possible.

IOSHA also slapped the International Alliance of Theatrical and Stage Employees Local 30 with "serious" safety violations and cited the State Fair Commission for failing to "have conducted an adequate life-safety evaluation and plan prior to the event." * * *

Many watching the case, including attorneys for those killed and injured, said it appears the blame game is at full tilt.

"They're saying, 'That wasn't my job, it wasn't my responsibility,' or 'It doesn't meet the definition,' " said J. Norman Stark, an attorney and forensic architect from Cleveland. "Someone has to take responsibility."

Kenneth J. Allen, the Valparaiso attorney who represents the estates of four people killed at the fair, downplayed the significance of the report.

"It is an agency of the state of Indiana, and its findings are marked by political considerations," Allen said. "My sense is it's an attempt to shift focus to the workers at the bottom rather than people at the top."

Allen said the report has little bearing on his lawsuits. "No matter how the stage was constructed, if it wasn't for bad decisions at the top, no one would have been hurt.

"My investigation includes people who weren't even mentioned in theirs," he said, including the band Sugarland.

Torres said IOSHA exonerated Sugarland because its agreement with the Fair Commission clearly delegated workplace issue to others.

From Niki Kelly of the Fort Wayne Journal Gazette's story today:
INDIANAPOLIS – Court documents released Wednesday detail a chaotic decision-making process that was largely being controlled by country duo Sugarland’s representatives as a severe storm approached the Indiana State Fair last August. * * *

Mid-America responded by releasing contracts showing the Indiana State Fair Commission knew the structure couldn’t withstand high winds.

Company officials also made public eight pages of a 100-plus page deposition of State Fair Executive Director Cindy Hoye taken as part of a civil lawsuit.

The Jan. 16 deposition provides the first in-depth understanding of the discussions going on that night about delaying or canceling the show.

Hoye said there was a meeting sometime between 8 p.m. and 8:15 p.m. in which she asked Eric Milby – from concert promoter Dave Lucas Entertainment – to talk to the band about the fair requesting a delay in the show.

Sugarland was set to go on at 8:45 p.m. for a 90-minute show.

Initially, the storm was supposed to hit about around 9:15 p.m. but it came earlier, knocking the rigging down at around 8:49 p.m.

Milby returned and told Hoye the band had concerns about a delay because it takes lead singer Jennifer Nettles 30 minutes to warm up. He also said the band needed to get to Iowa the next day to play the Iowa State Fair and did not want to delay.

“Would it be fair to say that you had requested that the show be delayed, but Sugarland had refused, through Mr. Milby, to delay the show?” the deposition said.

Hoye’s answer: “Correct.”

Milby was then asked to go back a second time about somewhere around 8:15 p.m. and ask again for a delay.

Hoye said she believes Milby offered to pay for extra stage hands in Iowa and suggested reducing the set time as encouragement for the band to accept a delay.

But the band wanted to play, according to the deposition.

From the Evansville Courier & Press, this story by Timothy Cox. A sample:
Mid-America, the company that made the load-bearing roof that collapsed, received the largest penalty, $63,000.

But company officials said later they warned the Indiana State Fair Commission the roof should not be used if wind speed reached 25 mph. Also, Mid-America said one of its employees warned the commission and Sugarland management to evacuate.

"On the evening of the incident one of our employees reconfirmed with state fair leadership that if there was lightning or wind speeds of 40 mph or more, the area should be evacuated," said Myra Borshoff Cook, a spokeswoman for Mid-America.

"Despite these warnings, the Indiana State Fair Commission, who controlled the venue, and Sugarland, who controlled the concert, refused to postpone the concert and failed to implement an evacuation plan away from the temporary roof structure," she said.

Mid-America officials said they will contest the fines which the state imposed for multiple violations. Among them: a failure to consider the soil of the fairgrounds when building the roof and not using up-to-date engineering documents and calculations.

"Blame spread on Indiana State Fair stage collapse" is the headline to Charles Wilson's story for the AP that begins:
INDIANAPOLIS — State fair officials, the stagehands union and a company that built the roof and lights rigging for a massive concert platform all share blame for last summer’s deadly stage collapse at the Indiana State Fair, a government investigation concluded.

The Indiana Occupational Safety and Health Administration released its report Wednesday after a six-month probe into the disaster. Seven people were killed and 58 were injured when a powerful storm swept into the fairgrounds and knocked over the outdoor stage rigging just before the country duo Sugarland was to perform.

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Stage Collapse

Ind. Decisions - "Bond ordered in baby’s rat-poison death"

Updating the ILB's summary of yesterday's COA opinion, the AP's Charles Wilson has coverage today in a number of papers. From the story:

INDIANAPOLIS – A judge must grant bond to an Indianapolis woman accused of killing her premature baby by ingesting rat poison while she was pregnant, the Indiana Court of Appeals said Wednesday.

In a 2-1 ruling, the court reversed a lower court decision that denied bond for Chinese immigrant Bei Bei Shuai. The court said the defense presented sufficient evidence to rebut the murder and feticide charges, and ordered Marion Superior Court Judge Sheila Carlisle to set bond.

Carlisle ruled in June that Shuai should not be allowed out of jail because there was a strong presumption of her guilt. Bond is extremely rare in murder cases.

The three-judge panel on Wednesday rejected Shuai’s argument that her charges should be dismissed. The court said the 34-year-old Shuai had not proven that common-law immunity exists for pregnant women who harm their own fetuses.

Judge Patricia A. Riley dissented, saying she didn’t think legislators ever intended to use the feticide statute to criminalize pregnant women’s prenatal conduct.

I'm told hearing has been set for Friday in Judge Carlisle's courtroom.

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Ind. App.Ct. Decisions

Vacancy on Supreme Court 2012 - Some news coverage of yesterday's interviews

"Magistrate touts experience in high court interview" is the heading of a story by Dan Carden of the NWI Times on the Pagano interview. The Gary Post-Tribune also has a story today.

"Shively says he would bring 'bit of Southwestern Indiana' to high court," is the headline to this story by Eric Bradner in the Evansville Courier & Press.

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Seven interviews this morning

Seven candidates will be interviewed this morning by the Judicial Nominating Commission, to be followed by deliberations in executive session, and presumably, an announcement of who has made it to the next round.

Here are today's candidates (note that some of the applications may load slowly)

9:00 a.m. – 9:20 a.m. – Ms. Rebecca Trent, West Lafayette (photo) (application)
9:20 a.m. – 9:40 a.m. – Mr. Karl Mulvaney, Indianapolis (photo) (application)
9:40 a.m. – 10:00 a.m. – Hon. Cynthia Ayers, Marion Superior Court, Civil Division 4 (photo) (application)
10:00 a.m. – 10:20 a.m. – Mr. Mark Massa, Indianapolis (photo) (application)

(Break)

10:35 a.m. – 10:55 a.m. – Ms. Jane Seigel, Indianapolis (photo) (application)
10:55 a.m. – 11:15 a.m. – Mr. Steven Schultz, Columbus (photo) (application)
11:15 a.m. – 11:35 a.m. – Ms. Patricia McMath, Indianapolis (photo) (application)

(Break)

11:50 a.m. – Deliberations in Executive Session

Posted by Marcia Oddi on Thursday, February 09, 2012
Posted to Vacancy on Supreme Court 2012

Wednesday, February 08, 2012

Vacancy on Supreme Court 2012 - Photos of final two interviews today

Photos of Judge Granger and Judge Pagano (click for larger views):

024

031

Here is the entire set of photos for today, thanks to the Court's press office.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Day 1: Report on the final 2 interviews

This is Prof. Schumm's report on the final two interviews of Day 1

Hon. Maria Granger, Floyd Superior Court 3 (photo) (application)

Judge Granger opened by noting the variety of the types of cases she hears in Floyd County, which include civil, criminal, and juvenile cases. She was inspired to go to college by her mother, who went to classes while she was a young girl. She went to law school because of a concern of “right” versus “wrong.” She began her career as a prosecutor, helping victims of crimes, and went on to help “ordinary people” in private practice. She is motivated by her judicial service and would like to expand it.

Although the Chief Justice usually finds “three or four” things he would like to ask each applicant when reviewing applications, he found “seven” in Judge Granger’s application. In response to one question, she explained her work on a chapter in the Benchbook on jury deliberations. She has also helped refine the Jury Rules to restrict access to technology during trials and deliberation.

In response to a question from Ms. Northernor, Judge Granger explained the creation of a Veteran’s Court in Floyd County. She noticed many veterans were suffering from substance abuse, PTSD, and other issues, and the problem-solving court is able to assist them while protecting public safety. It is a hybrid of drug court and mental health court. The work is important to her because of the enormous sacrifices veterans have made, including many members of her family. She visited the first Veteran’s Court in New York and was able to learn from that experience.

Ms. Kitchell asked about the “many different positions” in Judge Granger’s background. The question suggested concern about the relative short amount of time spent in some positions (see page four of the application), which Judge Granger explained to some extent by circumstances of some of the specific positions.

Ms. Northernor was impressed by a statement about impartiality in Judge Granger’s letter (it does not appear to be in the application available online), which should be “on a wall somewhere”—or in every courtroom according to Mr. McCashland.

In discussing collegiality with Mr. McCashland, Judge Granger emphasized that she has her own court but works with others in crafting court rules and budgeting. She must work with other judges and attorneys. Veteran’s Court is “hugely collaborative.”

Hon. Michael Pagano, Lake Superior Court, County Division 3 (photo) (application)

Judge Pagano emphasized the “diversity of experience” he could bring to the Court. He has been both a lawyer and judge, has practiced criminal and civil law, and has practiced in other states (Illinois and New York).

Chief Justice Shepard asked about “one of the toughest challenges” in court—the high volume of cases. Judge Pagano emphasized hard work and legal knowledge, because there is not time to go research most issues.

Mr. McDonald asked about the percentage of small claims cases with counsel. Judge Pagano estimated counsel in 40-50% of cases.

Mr. Winningham asked about the advantages of being young, and Judge Pagano noted that Chief Justice Shepard was three years younger when he was appointed to the Supreme Court. Attorneys respect scholarship and hard work—not age. He has been rated very highly in Lake County surveys of judges.

In response to a question from Ms. Kitchell about efforts to reform the judicial system, Judge Pagano discussed his work with the Lake County and state bar in building consensus to bring merit selection to the remaining Lake County courts last year.

In response to Mr. Winningham’s question about deciding difficult cases, Judge Pagano pointed to his writing samples resolving “thorny” legal issues. His life experience, including selling books door to door to pay for law school, helped build character. Mr. McDonald asked about the books sold, and Judge Pagano explained they were study guides.

In response to a question from Mr. McCashland about judicial activism, Judge Pagano described the judiciary as an “800lb. gorilla on an eight-inch chain.” Judges must defer to legislators and exercise restraint but must also decide important cases and reform the system in ways such as those proposed in the 2009 New Way Forward report.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Photos of second three interviews

Rory O’Bryan, Judge Bradford, and Judge Moberly.

Note that in the photo of Judge Moberly, you also can see Prof. Schumm busy reporting, underneath the photo of the bearded man.

Here is the entire set of photos, so far.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Day 1: Report on the second 3 interviews

This is Prof. Schumm's report on the second set of three interviews of Day 1

Mr. Rory O’Bryan, Indianapolis (photo) (application)

In response to the standard opening question, Mr. O’Bryan acknowledged his career path has not been typical for a justice. He noted he was one of ten children, which taught a lot about compromise. His inspiration was from reading about lawyers like Clarence Darrow and Abraham Lincoln. His speech seemed prepared, and he occasionally looked down, apparently at notes. He ended that his “clock is ticking,” and this job is the only one that would draw away him from his current practice.

In response to a question from the Chief Justice about practice opportunities for young lawyers, Mr. O’Bryan explained that a legal education is never wasted no matter the specific career path.

Mr. Ulmer asked about Mr. O’Bryan’s experience at Baker & Daniels. At the time it was only about thirty lawyers, and he was primarily in litigation. Ted Boehm was his mentor. He later transitioned to other areas and since leaving his practice is 2/3 commercial litigation and the rest on transactional work.

Mr. Winningham asked about Mr. O’Bryan’s lack of trial experience. Mr. O’Bryan responded the work of an appellate court is distinct from that of trial practice. (This is probably not an ideal answer to a Commission with three trial lawyer members.) He doesn’t think the lack of experience would hinder his ability as an appellate judge. He has had more experience in appellate work but has never had a case scheduled for oral argument.

Ms. Northernor asked about his experience in managing subordinates. He has had good relationships with all those he’s worked with and has encouraged secretaries and paralegals to better themselves and apply for other jobs.

In response to Ms. Kitchell’s question about staying current in other areas of law, Mr. O’Bryan tries to read every Indiana appellate civil case and usually takes notes. He does not read criminal cases but would. He sees each case as a story. (Random observation from Prof. Schumm: Criminal cases often include very interesting stories.)

Mr. McCashland asked if judges take political and social considerations into their decisions. Mr. O’Bryan hopes they do not, but believes it may happen but judges should apply the law objectively. He is “certain” some judges consciously decide cases based on these considerations but not Indiana appellate judges.

He cited the recent auto-dialer opinion and was convinced Justice David’s majority opinion was right then found Justice Sullivan’s dissent persuasive. Supreme Court opinions are not easy cases.

Mr. McDonald asked about experience in “representing ordinary people.” His favorite clients are “little old ladies.” He has represented people who have inherited farms and other properties.

In response to Ms. Northernor’s question about the “most complex legal matter” he has handled, he cited a 1980s case involving the issuance of bonds and the Simons.

In closing he noted he knew he “wasn’t the youngest applicant” but has many good years left in him and could make important contributions.

Hon. Cale Bradford, Indiana Court of Appeals (photo) (application)

The Chief Justice asked why Judge Bradford why he would want to leave the higher court, a reference to the Court of Appeals’ location on the fourth floor of the Statehouse, one floor above the Supreme Court on the third floor. Judge Bradford drew laughter by responding that he “wouldn’t have to climb as many stairs.”

Judge Bradford noted several qualities important to a new justice, including diverse experience, serious thinking, management experience, and collegiality. In applying these qualities to his experience, he noted his experience working for Deb Daniels in the U.S. Attorney’s office and Scott Newman in the Marion County Prosecutor’s office. He noted his diverse experience in civil and criminal cases in Marion County for more than ten years, including a number of leadership positions. He was since written more than 700 opinions on the Court of Appeals.

Mr. Winningham noted that many applicants have a diverse background but Judge Bradford is the only Court of Appeals’ judge. As a trial judge he was a “lone ranger,” but as an appellate judge he shares authority and responsibility. In response to a question about compromising his views with others, Judge Bradford emphasized the importance of listening and considering the views of others.

In response to a question about whether “public policy” is relevant in interpreting statutes, he responded it is not. If a statute is ambiguous, judges should apply “common sense.” Ms. Northernor made clear she liked the answer. Judge Bradford added that he sees his role as an umpire.

Mr. McDonald asked about the many roles of the Court beyond deciding cases, such as adopting rules. The law is about “people” not just written rules, and he would bring a practical understanding to changing court rules.

In response to Ms. Kitchell’s question about reforming the judicial system, he emphasized changes like expanding Odyssey need to continue. Indiana must keep moving forward and not rest on its laurels.

In response to a question from Mr. Winningham about his experience managing the Marion Superior Courts, Judge Bradford cited his efforts in resolving jail overcrowding, which requires figuring out many small problems in resolving the larger one.

In closing, Judge Bradford noted that he works hard and really enjoys the many things he had done in his extensive application.

Hon. Robyn Moberly, Marion Superior Court, Civil Division 5 (photo) (application)

Chief Justice Shepard opened by mentioning that Marion County had sent “three of its stars” for the interviews that afternoon. In her opening remarks, Judge Moberly emphasized she really enjoys writing, which is how she reaches decisions. She has found the civil bench more intellectually challenging than the criminal bench.

Chief Justice Shepard asked about cases where the parties select her as special judge. Judges can qualify through a specific request for the judge from both counsels by agreement or a striking process from a panel of three judges. She has had a number of cases through the first process and she discussed a couple of recent cases as examples.

Mr. Ulmer asked about her experience in private practice, and Judge Moberly explained she had gone into practice with her husband after four years which allowed a good work-life balance. They did a variety of types of cases, including both plaintiff and defense representation.

In response to Mr. Winningham’s question about efforts to improve the judicial system, Judge Moberly emphasized the Family Court Project. Through grant funding and county money, a staff of three is able to assist thousands of families and children.

In response to Ms. Kitchell’s question about the decision to pursue a legal career, Judge Moberly noted that the women she knew in college had “lofty goals.” She went to college to be a teacher or nurse but was inspired by her friends who are now lawyers and doctors to pursue a legal career.

Ms. Northernor asked what the average person has a right to expect of a judge. Judge Moberly responded: humility, which includes respect for precedent, a serious work ethic and professional ethics, and intellectual curiosity.

In response to a question from Mr. McCashland about taking the difficult situations from work home with her, Judge Moberly responded that she sees herself as part of the solution, is patient on the bench, and leaves for the week feeling good about what was accomplished.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - General Disclaimer

For the record, here is a general disclaimer covering this entire series that the ILB had intended to post earlier today but forgot.

General disclaimer: Prof. Schumm may have assisted one or more of the applicants in different aspects at assorted stages of the process.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - Busy day, Supreme Court agrees to hear legislative fines case [Updated]

Niki Kelly of the FWJG tweets:

So now the ISC has three major cases going; legislative fines; Daniels deposition in IBM case; and Charlie White's SOS successor.

I guess Chief Justice Randy Shepard won't be bored in the remaining days of his tenure; he is set to resign in March.

Here is the order. The Court press office sends along this note:

You’ll remember, on Jan 27th the Supreme Court granted transfer to Berry v Crawford. The Court has been asked to consider another appeal, arising from the same trial court matter.

The Supreme Court granted transfer and consolidated the two “Berry” cases into one. The Court also had a number of motions to consider. As the order explains, the Supreme Court granted in part and denied in part. The trial court previously ordered Berry to immediately repay amounts withheld as fines in 2011. The Supreme Court stayed that decision. Meaning, Berry need not act on the trial court order to pay. The trial court also previously enjoined Berry from further withholdings. The Supreme Court has ordered that judgment to remain in effect. In short, the Supreme Court order says:

1. The Supreme Court is taking the case

2. The Supreme Court is consolidating the two Berry cases

3. Berry need not pay back fines already withheld, pending the appeal

4. Berry should not withhold current/more fines

[More] Here is Chris Sikich's coverage just posted to the IndyStar.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Indiana Courts

Vacancy on Supreme Court 2012 - Photos of first three interviews

View a slideshow of 11 photos of the first three interviews this afternoon, with captions, by using the "next" button. Thanks to the Supreme Court press office.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Day 1: Report on the first 3 interviews

This is Prof. Schumm's report on the first three interviews of Day 1

Mr. Les Shively, Evansville (photo) (application)

The Chief Justice began the interview by asking why Mr. Shively found the position attractive and what he would bring to the Court. Mr. Shively emphasized his 31 years of experience including work in public service and noted that he had been approached by colleagues and encouraged to apply. He has practiced in 20 counties and tried an average of two jury trials each year. In 2000, he was appointed as a hearing officer in a disciplinary case and has since been appointed in eighteen cases. He has written materials for CLE presentations. He also emphasized his ten years of experience on the Board of Law Examiners. Ten members must come together with one goal. He was twice asked to be chair.

The Chief Justice referred to a letter of recommendation from Judge Pigman about his appointment as the receiver for the Washington Court Development Corp.

Mr. Winningham referred to the letters of recommendation that emphasized his love of the practice of law. Some have come to the bench and missed the practice of law. Mr. Shively responded that he is ready for a new challenge and could blend his zeal for public service with his love of the law as a justice.

Mr. McDonald asked about technological saavyness. As an Ivy Tech trustee he is using an iPad. His staff works with him daily in getting him into the 21st Century. He was also asked about the commute, which Mr. Shively said is just under three hours. He would find temporary housing in Indianapolis during the week and live in Evansville on the weekend.

Ms. Northernor asked what message his appointment would send to the legal community. He responded, “Judges can come from various walks of life,” which would be well-received based on his experience and reputation.

Mr. McCashland asked about collegiality. Mr. Shively responded that he would be part of a court of five and would work well with others. He cited his experience from the Board of Law Examiners.

Mr. Ulmer asked about the nature of his jury trial experience. Many were condemnation cases and property rights cases. Early in his career he did personal injury work.

Ms. Kitchell asked about his ability to keep abreast of other areas of law. He cited his experience in disciplinary cases and noted he reads new opinions daily.

The Chief Justice gave him an opportunity to wrap up briefly, and Mr. Shively appeared to be looking down at prepared remarks.

Ms. Mary Reeder, Indianapolis (photo) (application)

In response to the standard opening question, Ms. Reeder said it was not something in her long-term plans but she was encouraged in 2010 by colleagues to apply and reviewed the application. She would like to engage in the intellectual work of the Court and could make good use of her breadth of experience.

The Chief Justice asked about the fifth case on page six.

Ms. Northernor asked if this would be an attractive job change. Ms. Reeder has been with the same firm for thirty years. She would miss working with some of the young lawyers of the firm but has had a full and enjoyable career practicing in many areas.

Mr. Winningham asked about Ms. Reeder’s efforts with CLE and judicial education. Ms. Reeder has done many presentations for ICLEF and has been involved in an organization that helps provide judicial education.

Mr. Ulmer asked about her work with in representing one of the State Fair stage collapse defendants. She represents the defendant. She is working toward a quick resolution.

Mr. McDonald asked for an example of recent pro bono work. She could not think of any recent experience, although she has helped out people in the more distant past when they were not able to afford counsel.

Mr. McCashland asked about judicial philosophy. She would respect precedent and defer to the legislature when it has acted constitutionally. The Court should provide consistency and reliability. In response to a question about the profession, she responded that she views the practice of law as a profession and not a business, although it has become more of a business in her thirty years of practice.

Mr. McDonald asked about the Article 1, Section 12 right to open courts and the easier summary judgment standard in federal courts. As a practical matter, she believes summary judgment practice is similar. She does not request it unless she thinks she is entitled to it.

Ms. Kitchell asked about the percentage of cases that are resolved short of trial. She thinks more than 95% are resolved by summary judgment or mediation. She tries an average of a case each year.

Mr. McCashland asked Ms. Reeder about being soft-spoken, and she responded a client recently told her he liked her because she was “mean.” She tried to be tough but fair in representing her clients.

Mr. Ulmer asked about civility between opposing counsel. She hopes all her adversaries would say she has been nothing but civil, courteous, and professional.

In wrapping asked, she briefly tackled the topic of possible bias because of her work as defense counsel in civil cases. She wanted to assure the lawyer members (all three are members of the civil plaintiff’s bar) that she would have no agenda.

Hon. Robert Altice, Marion Superior Court, Criminal Division 2 (photo) (application)

In responding to the opening question, Judge Altice said this had always been his dream job and a good way to end his career in public service. He would be good at the job because of his extensive trial experience (as a prosecutor and judge) and administrative experience (as a presiding judge in Marion County).

The Chief Justice asked Judge Altice about his prior civil experience, and Judge Altice emphasized the “cross-over” of issues and cited some examples of recent criminal cases with civil type of issues.

Mr. Winningham noted the many letters of recommendation from judges and asked about his ideas for continuing to move the judiciary forward. Judge Altice agreed with most of the 2009 New Way Forward report. (Mr. Ulmer later asked Judge Altice to explain the “white paper” for the benefit of the non-lawyer members.) In response to a question about judicial education, Judge Altice explained he loved teaching at judicial conferences, CLEs, and even speaking with high school students.

Mr. McDonald asked for an estimate of public defender representation versus private counsel. Judge Altice estimated at 50%. Judge Altice explained his process in setting bond, which allows more defendants to hire private counsel. Mr. McDonald also mentioned the high approval rating in the recent IBA poll. Judge Altice explained that he tried to stay involved in other groups like the Inn of Courts, which allow him to meet many other lawyers.

Ms. Northernor asked if there were ways to reduce the backlog of cases. Judge Altice explained reducing caseloads and resolving the jail overcrowding problem a few years ago through reassignment of a judge.

In response to a question about collegiality from Mr. McCashland, Judge Altice said one of the security personnel asked him as he was leaving the City-County Building today, “Where are you going, Cool Judge?” He cited his experience working with other judges and as a presiding judge to resolve issues.

In response Mr. Ulmer’s question to a question about civility among lawyers, he mentioned the “Judge Bob Rule”: when the jury is deliberating, opposing counsel must go out with him for a beer or soft drink.

In response to a question from Ms. Kitchell about his decision to purse a legal career, Judge Altice mentioned he was a first-generation college student and always wanted to be a lawyer since childhood.

On many levels this was the strongest interview so far. The questions hint that some Commission members see Judge Altice as a potential Chief Justice.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - Yet more on Bei Bei Shuai death of fetus case

Updating earlier ILB entries, Bill McCleery of the Indianapolis Star is now reporting on today's COA opinion here.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Ind. App.Ct. Decisions

Vacancy on Supreme Court 2012 - Names the interviewees will be facing.

From Ind. Univ. Robert McKinney School of Law Professor Joel Schumm.

Names the interviewees will be facing.

See this ILB entry for more details on the members of the Judicial Nominating Commission.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Setting the stage for this afternoon's interviews

From Ind. Univ. Robert McKinney School of Law Professor Joel Schumm.

The first round of interviews for the Indiana Supreme Court vacancy are being held in the Indiana Supreme Court conference room, where the justices meet for their almost-weekly conferences.

After the first round of interviews, the list of fifteen will be winnowed, probably to seven (or possibly as many as nine) semi-finalists.

After a second round of interviews on February 22, the Commission will select the three most highly qualified applicants to send to the Governor, who will appoint one of them as the 107th justice within sixty days. That justice will take a seat on the Court and his or her picture will join the 106 that currently adorn the walls of the courtroom.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - Still more on Bei Bei Shuai death of fetus case

The trial court has set a hearing for Friday.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Ind. App.Ct. Decisions

Law - The U.S. Constitution out of date, no longer the model for other countries

That is the thesis of Adam Liptak's interesting NYT story, published Feb. 6th, subheaded "The United States Constitution was once a model for charters around the world, but its influence is waning, according to a new study."

Here is the study cited in the story, "The Declining Influence of the United States Constitution," by David S. Law and Mila Versteeg.

From the Liptak story:

The study, to be published in June in The New York University Law Review, bristles with data. Its authors coded and analyzed the provisions of 729 constitutions adopted by 188 countries from 1946 to 2006, and they considered 237 variables regarding various rights and ways to enforce them.

“Among the world’s democracies,” Professors Law and Versteeg concluded, “constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution, only to reverse course in the 1980s and 1990s.”

“The turn of the twenty-first century, however, saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world’s democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II.”

There are lots of possible reasons. The United States Constitution is terse and old, and it guarantees relatively few rights. The commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century may send the signal that it is of little current use to, say, a new African nation. And the Constitution’s waning influence may be part of a general decline in American power and prestige.

In an interview, Professor Law identified a central reason for the trend: the availability of newer, sexier and more powerful operating systems in the constitutional marketplace. “Nobody wants to copy Windows 3.1,” he said.

In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

But the Liptak article ends:
There are, of course, limits to empirical research based on coding and counting, and there is more to a constitution than its words, as Justice Antonin Scalia told the Senate Judiciary Committee in October. “Every banana republic in the world has a bill of rights,” he said.

“The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours,” he said, adding: “We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!”

“Of course,” Justice Scalia continued, “it’s just words on paper, what our framers would have called a ‘parchment guarantee.’ ”

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to General Law Related

Stage Collapse - "Indiana stage builder cited in state fair collapse"

Supplementing this Star story, the AP's Charles Wilson has filed this story.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Stage Collapse

Ind. Decisions - More on Bei Bei Shuai death of fetus case

Here is a long list of earlier ILB entries in the Bei Bei Shuai case.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 15 NFP)

For publication opinions today (5):

Bei Bei Shuai v. State of Indiana - see summary here

Joey Jennings v. State of Indiana

Anthony T. White v. State of Indiana

In Re the Paternity of N.T.; B.T. v. D.K. and K.K.

Zuri K. Jackson v. Demetrius Holiness

NFP civil opinions today (3):

Elizabeth A. McQuinn v. Michael T. McQuinn (NFP)

Term. of the Parent-Child Rel. of K.M.: H.M. v. Indiana Dept. of Child Services (NFP)

Edwin Mauricio Parrillas d/b/a Hispano America Auto Sales v. Los Amigos Auto Sales, Inc. (NFP)

NFP criminal opinions today (12):

Kevin M. Timko v. State of Indiana (NFP)

Vincent L. Gant v. State of Indiana (NFP)

David L. Scudder v. State of Indiana (NFP)

Kristina L. Phillips v. State of Indiana (NFP)

Jay Unger v. State of Indiana (NFP)

Ravonte L. Love v. State of Indiana (NFP)

Leslie E. Foreman v. State of Indiana (NFP)

Angela M. Lemarr v. State of Indiana (NFP)

Richard M. Ford v. State of Indiana (NFP)

Michael D. Wright, Sr. v. State of Indiana (NFP)

Kenneth A. Horton v. State of Indiana (NFP)

Joe Songer, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - COA issues opinion in Bei Bei Shuai case

In Bei Bei Shuai v. State, a 31-page,, 2-1 opinion, Judge May writes:

Bei Bei Shuai appeals the denial of her motion for bail and writ of habeas corpus ("the Bail Appeal") and the denial of her motion to dismiss the charges against her ("the Dismissal Appeal"). She raises numerous issues, two of which we find dispositive:
1. Whether the trial court abused its discretion when it denied Shuai bail because the proof was evident and presumption was strong that she committed murder; and
2. Whether the trial court erred when it denied Shuai's motion to dismiss.
We reverse in part, affirm in part, and remand. * * *

After the parties presented evidence at a hearing, the trial court found: "Based upon the evidence presented, the Court finds the proof of guilt is evident and the presumption of guilt is strong." (emphasis in original). The court therefore denied Shuai's request to be released on bail. We disagree with the trial court's decision. The defense presented sufficient evidence to rebut the presumption that Shuai is guilty, and the trial court therefore abused its discretion by denying Shuai's motion for bail. Accordingly, we reverse and remand for determination of bail. * * *

Because the charging information was not deficient, the plain language of the statute applies to Shuai's actions, and Shuai has not demonstrated common law immunity for pregnant women who harm their own fetuses, we cannot say the trial court abused its discretion when it denied Shuai's motion to dismiss.[17] We accordingly affirm that denial.

Conclusion. Because Shuai rebutted the presumption of guilt required to hold her without bail, we reverse the denial of her motion for bail and remand for determination of the amount of bail. However, as the charging information was sufficient to apprise Shuai of the charges against her, the murder statute is unambiguous and its plain language encompasses her alleged actions, and she does not have immunity from prosecution, we affirm the denial of her motion to dismiss and remand for further proceedings.

Reversed in part, affirmed in part, and remanded.
NAJAM, J., concurs.
RILEY J., concurs in part and dissents in part with separate opinion. [which begins, at p. 23 of 31] While I agree with the majority‘s decision to reverse and remand for determination of Shuai's bail, I respectfully disagree with its denial of Shuai's motion to dismiss. Based on the facts and charging information before me, I would dismiss both the murder and attempted feticide Counts as charged by the State.
_________________

[17] The dissent believes holding Shuai's actions are covered by the feticide statute would result in the criminalization of pregnant women who smoke, drink, or take "over-the counter (sic) cold remedies and sleep aids." (Slip op. at 8.) However, the feticide statute provides the actor must terminate a human pregnancy knowingly, with the "intention other than to produce a live birth or to remove a dead fetus." IC 35-42-1-6. Thus, the hypothetical situations the dissent presents would not be criminalized unless the additional element of intent was present. There is evidence Shuai had such intent.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Ind. App.Ct. Decisions

Stage Collapse - "IOSHA cites Indiana State Fair, stagehands union, sound company in fatal stage collapse"

John Tuohy of the Indianapolis Star has the early story here. Some quotes:

The Indiana Occupational Safety and Health Administration today cited the State Fair Commission and the local stagehands union for serious violations in the State Fair tragedy that killed seven and injured dozens more.

The agency also cited Mid America Sound Corp. for "knowing violations.” The Greenfield-based company, which owned the rigging, received the largest fine: $63,000.

IOSHA fined the International Alliance of Theatrical and Stage Employees Local 30 $11,300 and the State Fair $6,300 for the violations. * * *

The IOSHA investigation is only one of several investigations into the stage rigging collapse.

The State Fair Commission also hired Thornton Tomasetti, an engineering firm based in New York City, to investigate the rigging collapse.

Gov. Mitch Daniels later hired Witt Associates, a public safety and crisis management consulting firm based in Washington, D.C., to conduct a "comprehensive, independent analysis" of the fair's preparedness and response to the disaster.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Stage Collapse

Ind. Decisions - "Reversed on appeal, DUI cases sent back to Judge Frese"

Dave Stephens of the South Bend Tribune has the story - some quotes:

SOUTH BEND — Next week a man named Donald Wilson is expected to walk into a courtroom and appear before a judge who, according to the Indiana Court of Appeals, made a mistake. That mistake means Wilson could now be found guilty of a felony, instead of a misdemeanor as the judge had previously ruled. The same fate awaits two others.

In November, the Indiana Court of Appeals reversed three separate decisions made by St. Joseph Superior Court Judge Jerome Frese, in which the court ruled that Frese’s understanding of a 20-year-old state DUI law was contrary to what the law actually said.

In Indiana, drivers who are found guilty of driving under the influence are typically charged with a Class C misdemeanor, a charge with a maximum penalty of 60 days in jail.

But Indiana is tougher on repeat offenders. The state code amplifies the charge to a Class D felony — with a maximum penalty of up to three years in prison — for DUI offenses that occur within five years of a previous conviction. Except, it seems, in Frese’s courtroom. * * *

In all three cases, the Court of Appeals remanded the case back to Frese’s court, meaning the defendants will have the opportunity to have their cases tried again.

Which means next week, Wilson is scheduled to appear before Frese again, and Traver and Eichorst are scheduled to appear in March.

See this Nov. 23, 2011 ILB entry (3rd case), which quotes a COA footnote listing all three Frese decisions.

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Ind. App.Ct. Decisions

Vacancy on Supreme Court 2012 - Eight interviews this afternoon

Eight candidates will be interviewed this afternoon by the Judicial Nominating Commission, the remaining seven interviews will take place tomorrow morning.

Here are today's candidates (note that some of the applications may load slowly)

1:50 p.m. – 2:10 p.m. – Mr. Les Shively, Evansville (photo) (application)
2:10 p.m. – 2:30 p.m. – Ms. Mary Reeder, Indianapolis (photo) (application)
2:30 p.m. – 2:50 p.m. – Hon. Robert Altice, Marion Superior Court, Criminal Division 2 (photo) (application)

(Break)

3:05 p.m. – 3:25 p.m. – Mr. Rory O’Bryan, Indianapolis (photo) (application)
3:25 p.m. – 3:45 p.m. – Hon. Cale Bradford, Indiana Court of Appeals (photo) (application)
3:45 p.m. – 4:05 p.m. – Hon. Robyn Moberly, Marion Superior Court, Civil Division 5 (photo) (application)

(Break)

4:20 p.m. – 4:40 p.m. – Hon. Maria Granger, Floyd Superior Court 3 (photo) (application)
4:40 p.m. – 5:00 p.m. – Hon. Michael Pagano, Lake Superior Court, County Division 3 (photo) (application)

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - More on: "Jurors were stunned when the defense didn't call any witnesses in the voter fraud trial of Secretary of State Charlie White"

Re the last ILB entry last evening, a reader has written to say to that WRTV's transcipt is at variance with the interview he watched on TV:

I saw the report at 7:00 and it was substantially different from the web version. The foreman was asked if the jury would have acquitted if the ex-wife had taken the stand and said what she said in the recount commission hearing, and my recollection is that he paused, smiled, and said something like "well, it probably would have added three or four more hours to our deliberations because it would have raised and answered some questions, but I don't know that it would have meant an acquittal."
The "transcript" says:
"Most of us felt that if the ex-wife would have testified, or the new husband had said, 'Yeah, he was living in our basement,' that would have been very telling. It would have been nice to actually hear from the new wife, too," he said.

When asked if he believed the jury would have acquitted White based on such testimony, Weidman said, "I feel we probably would have."

So I just watched the video that is available online, and have a third version -- about 1:23 into the video, the juror says instead, when asked if testimony would have made a difference, and noting it would have added 3 or 4 hours to the deliberations: "It would have made his case a lot stronger."

Posted by Marcia Oddi on Wednesday, February 08, 2012
Posted to Indiana Government

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.

Posted by Marcia Oddi on Tuesday, February 07, 2012
Posted to Indiana Government

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.

Posted by Marcia Oddi on Tuesday, February 07, 2012
Posted to Indiana Government

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.

Posted by Marcia Oddi on Tuesday, February 07, 2012
Posted to Ind. Sup.Ct. Decisions

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].

Posted by Marcia Oddi on Tuesday, February 07, 2012
Posted to Ind. (7th Cir.) Decisions

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.

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 civil opinions today (1):

R.W. v. M.R. (NFP)

NFP criminal opinions today (2):

Justin Woodhouse v. State of Indiana (NFP)

Christopher Short v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 07, 2012
Posted to Ind. App.Ct. Decisions

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:

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:

  • Christine H. Keck, First District, Evansville, Term expires: 12/31/10 Molly Kitchell, First District, Zionsville, Term expires: 12/31/13
  • Mike Gavin, Third District, Warsaw, Term expires: 12/31/11 Jean Northenor, Third District, Warsaw, Term expires: 12/31/14
  • Fred McCashland, Second District, Indianapolis, Term expires: 12/31/12
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:
  • John C. Trimble, Esq.; Second District, Indianapolis, Term expires: 12/31/10 William E Winningham, Jr. Esq.; Second District, Indianapolis, Term expires: 12/31/13
  • John O. Feighner, Esq.; Third District, Fort Wayne, Term expires: 12/31/11 John 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.

The July 26, 2010 ILB entry also has photos of the commissioners reviewing applications and questions candidates.

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"]

Posted by Marcia Oddi on Tuesday, February 07, 2012
Posted to Vacancy on Supreme Court 2012

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."

Posted by Marcia Oddi on Tuesday, February 07, 2012
Posted to Environment

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.

Posted by Marcia Oddi on Tuesday, February 07, 2012
Posted to Vacancy on Supreme Court 2012

Monday, February 06, 2012

Ind. Gov't. - "Marion County judge grants permanent order blocking state from seizing pay of House Democrats"

Chris Sikich's Indianapolis Star story was posted early this evening. Some quotes:

A Marion County judge has granted a permanent order blocking the state from seizing pay of House Democrats to cover the fines being imposed for the legislative walk-out.

The ruling, issued late today by Judge David Dreyer, orders the state to return any money that was seized in 2011 and to stop any action to collect fines imposed this year. However, the order is on hold until the Indiana Supreme Court rules whether the local court has jurisdiction in the case. No hearings have been set. * * *

Attorney General Greg Zoeller announced late today in a news release he plans to appeal the Marion County court's ruling. Zoeller will ask that the appeal be transferred to the Indiana Supreme Court.

Zoeller said under constitutional separation of powers, trial courts can't interfere with the business of the legislature or its internal rules.

"The interruption that led to the recent legislative fines ended when session resumed and legislators now should work out among themselves whether to collect fines," Zoeller said. "We disagree with the trial court’s prolonging this internal dispute and the precedent it would establish, and we will respectfully ask a higher court to redirect the dispute promptly and conclusively to the place it belongs: the Legislature."

The ILB has now obtained a copy of Judge Dreyer's order.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Indiana Government

Ind. Gov't. - "Democrats ask court to enforce ruling making Vop Osili Secretary of State"

Carrie Ritchie's story in the IndyStar, filed early this evening, reports:

The Indiana Democratic Party has asked the Indiana Court of Appeals to enforce a judge's ruling that would make their candidate Secretary of State. * * *

Shortly after the November 2010 election, which Osili lost to White, the Democrats asked the Indiana Recount Commission to declare that White was ineligible to run for office because he was improperly registered to vote and to deem Osili the rightful winner.

The Recount Commission refused, so the Democrats appealed in Marion Circuit Court.

Judge Louis Rosenberg sided with the Democrats in December 2011 and said Osili should take White's place.

However, he stayed his ruling until an appeal from White and the Recount Commission can be resolved.

Attorney Karen Celestino-Horseman, who's representing the Democrats, said it’s no longer necessary for the court to delay the ruling because White is no longer in office.

“The stay preserves the status quo,” she said, “but that status quo is now gone.”

The Star has posted the 7-page filing, which also appends a number of other documents, including, at p. 33 of 34, Judge Nation's CSS entry from Feb. 4, when the jury returned its verdict.

Earlier today the ILB posted the certificate the Hamilton County Clerk thereupon sent to the Governor, after which the Governor sent an appointment letter to Jerold Bonnet (see p. 34 of 34).

Shortly after 7 this evening the Attorney General issued a press release [no link yet] which states:

AG’s Office seeks expedited review from Supreme Court in ballot case

INDIANAPOLIS – With the appeal of a trial court’s ruling in a ballot eligibility case still pending in the Indiana Supreme Court, the Indiana Attorney General’s Office will object to the trial court taking further action on the case until the appeal is heard by the state’s highest court.

The Attorney General’s Office represents the Indiana Recount Commission in a lawsuit, IDP v. Charlie White et al. On December 22 the Marion County Circuit Court reversed the Recount Commission’s unanimous ruling on White’s eligibility to appear on the 2010 ballot as a Secretary of State candidate. But the trial court on January 4 stayed, or halted enforcement of, its own ruling, pending appeal by the Recount Commission and other litigants.

The Attorney General’s Office on January 9 filed a motion seeking to transfer the appeal directly to the Indiana Supreme Court, the state’s highest court. The plaintiffs today filed a motion in the Indiana Court of Appeals seeking to lift the stay of the trial court’s original December 22 order and enforce the order on ballot eligibility. With a transfer petition already pending in the Indiana Supreme Court and awaiting consideration, the Attorney General’s Office plans to object to the plaintiff’s latest motion, contending that the entire matter belongs in the state’s highest court, bypassing the Court of Appeals. The State’s response, objecting to lifting the trial court’s stay order, will be filed soon.

“What the public needs now is an objective and unambiguous ruling from the Indiana Supreme Court to bring certainty, clarity and finality to this situation, 15 months after the election. It was highly unusual for a trial court to overrule a unanimous administrative decision of the Recount Commission in a statewide election, so at the very least the trial court’s ruling ought to be reviewed by the state’s highest court,” Indiana Attorney General Greg Zoeller said.

The Recount Commission last June made a unanimous finding concerning candidate White’s eligibility for the 2010 ballot as a candidate for Secretary of State, but when the trial court reversed that decision, the commission appealed. In the ongoing litigation, the Attorney General's Office represents the Recount Commission only and does not represent candidate White in the civil suit. The Supreme Court has not yet decided whether to take the case, and the State’s next brief in the case is due February 13.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Indiana Government

Ind. Decisions - More re the COA decision in Ankeny v. Governor

The Court of Appeals decision Nov. 12th, 2009 in the case of Steve Ankeny and Bill Kruse v. Governor of the State of Indiana (see ILB summary here - 2nd case), cited favorably in this ILB entry from Nov. 20, 2009, is quoted at length in this Feb. 3, 2012 opinion by an administrative judge in Georgia that President Barack Obama deserves a place on Georgia’s Democratic primary ballot on March 6. Beginning at p. 6, eg:

In 2009, the Indiana Court of Appeals ("Indiana Court") addressed facts and issues similar to those before this Court. Arkeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009).
See also the Atlanta Journal Constitution Feb. 3, 2012 story by Bill Rankin.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Ind. App.Ct. Decisions

Courts - "Kentucky rulings can affect some fairly unusual events"

Andrew Wolfson of the Louisville Courier Journal has a lengthy story today - here he sets up the premise:

Do you have the right to swear at a police officer who stops you for speeding?

Are you liable if you wave another driver into a road and he or she gets hit?

Can you sue a person who steals away your spouse?

The Kentucky Supreme Court and Court of Appeals in Frankfort may seem far removed from our lives. But it has addressed those and other issues that affect us every day — on the highway, in the bedroom and in our most intimate relationships.

Do you have the right to visit your grandchild, even over the objections of your adult child and his or her spouse?

If you father a child during an affair with a married woman, do you have a right to visit the child?

If you give a confession when drunk, can it be used against you?

With help from attorneys, judges and law professors, The Courier-Journal collected 10 decisions that the high courts have rendered in the past four decades to address those and other questions.

Here are two samples:
If I father a child during an affair with a married woman, do I have any right to visit my child?

For 2,000 years the law presumed that a child born during a marriage was fathered by the husband because it was impossible to prove otherwise — unless the husband was on the high seas for the nine months before the child was born.

But the advent of DNA testing made proving paternity a virtual certainty.

Bowing to that reality, the Kentucky Supreme Court ruled in May that men who father a child during an affair with a married woman have the right to seek a role in the child’s life. Kentucky joined 32 other states that allow a man to challenge the presumption that a baby born to a married couple is the husband’s.

The ruling came over the objection of the girl’s mother and conservatives who said it would tear apart marriages. One justice said in dissent that it consigned the institution of marriage “to the funeral pyre of modern convenience and unanchored values.”

But others cheered it, saying it would allow men, such as Christopher H. Egan of Northern Kentucky, who fathered the the baby girl during an extramarital affair, to step up and accept responsibility.

Egan’s lawyer, Erin Wilkins, said he is now seeing his daughter.

“He could have walked away, but he wanted to know her,” Wilkins said. “He wanted to do the right thing, and I think he should be applauded.”

May I visit my grandchild, over the objections of my own adult child and his spouse?

Boyle County farmer W.R. King saw his baby granddaughter, Jessica, nearly every day for her first 16 months. But after he kicked son Stewart off the farm in 1988, Stewart and his wife wouldn’t let King see his granddaughter.

Four years earlier, the Kentucky General Assembly had enacted a law allowing judges the power to award grandparents visitation rights, if it is in the child’s best interest.

But her parents said the law was unconstitutional — that the government has no right to tell parents how to raise their children, as long as they are not being neglected or abused.

The Supreme Court upheld the law — and King’s right to see his grandchild. Lamenting the disintegration of the American family, it said that if a grandparent is physically, mentally and morally fit, then a grandchild will ordinarily benefit from contact with the grandparent.

There is no reason a “petty dispute between a parent and child” should deprive a grandparent and grandchild of the unique relationship that ordinarily exists between them, the court said.

ILB: The answers would not necessarily be the same if we were looking at Indiana law.

And one thing I'd like to have seen is references to the decisions relied upon.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Continental Electric Co., Inc. v. Gary Community School Corporation (NFP)

NFP criminal opinions today (3):

Meranda White v. State of Indiana (NFP)

Daniel Thompkins v. State of Indiana (NFP)

Michael V. Lane v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Ind. App.Ct. Decisions

Stage Collapse - Findings of the IOSHA investigation to be "outlined"

From a press release:

The Indiana Department of Labor will announce the results of the Indiana Occupational Safety and Health Administration investigation into the Indiana State Fair stage collapse on Wednesday, February 8 at 10:00 a.m. * * *

Announcement of the results of the IOSHA investigation into the Indiana State Fair stage collapse August 13, 2011. * * *

1. This presentation will include an outline of the findings of the IOSHA investigation and a briefing on the Safety Order(s) issued as a result of that investigation.

2. A question period will be included.

3. Copies of the Safety Order(s) will be on hand.

ILB: No mention of public availability of the "findings of the IOSHA investigation."

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Stage Collapse

Ind. Gov't. - Governor received notice from Hamilton Clerk on Feb. 4th at 2:38 AM

Re the question of when the Clerk of the Court in Hamilton County is to notify the Governor of a vacancy - is it upon notice of the verdict or upon sentencing, the ILB has just received this document, signed by Hamilton Clerk Peggy Beaver, which reads:

The jury has publicly announced a felony conviction against Charles P. White in the Hamilton Superior 1. Pursuant to Indiana Code § 3-13-4- 3(d), this letter serves as notice that there is now a vacancy in the Office of Secretary of State under Indiana Code § 5-8-1-38.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Indiana Government

Ind. Gov't. - "'Right to work' bill reveals discord among Indiana General Assembly Democrats"

Tom Lobianco of the AP had a long, insightful, don't miss story this weekend, which was picked up in today's Indianapolis Star. The story centers on House Minority Leader B. Patrick Bauer. A quote:

Even the Democrats' candidate for governor, former House Speaker John Gregg, has said it's time to move on.

"It's time to move beyond this divisive issue," Gregg said in a statement after the passage of "right to work" last week. "Indiana needs a governor and a legislature that show up for work every day and works together with one focus -- creating jobs, whether it's for a union or nonunion workplace. Because in the end, it doesn't matter if you're in a union or not -- if you get laid off, you're not bringing home a paycheck."

Bauer, 68, who says his father, former Sen. Burnie Bauer, taught him to "study your issues and persist," isn't fazed. He's seen his caucus plunge to even darker depths since he first took office in 1970 and still come out the other side.

ILB: I just looked them up, although I remember both well - Former Indiana legislator Burnett C. "Burnie" Bauer, now deceased, last served in the legislature in 1977. And Speaker Otis Bowen, who Bauer also references, become Governor in 1972. Just saying, but "it's time to move on" may have legs.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Indiana Government

Ind. Gov't. - "Nonsensical session" writes FWJG

Some quotes from the long editorial today:

Forty years after creating biannual short sessions, any sense that the Indiana General Assembly is confining its work to addressing pressing issues and tweaking fiscal concerns stemming from the previous year’s budget session has long since passed.

As lawmakers head into the second half of their legislative session, among the efforts still alive are bills to allow teaching creationism in schools; legalize switchblade knives; conduct drug tests on welfare recipients and legislators; and give schools more authority to punish students for conduct that has nothing to do with school.

For progressive Hoosiers who want to see the legislature improve the state, perhaps the best news from last week was Senate President Pro Tem David Long’s announcement that the Senate would not consider an ill-advised effort to legalize high-fenced “canned” hunting that many hunters oppose.

This section of the editorial particularly caught my eye:
A bill largely under the radar would change current law that allows school administrators to suspend or expel students who engage in unlawful activity by striking the word “unlawful” from the law. Seventy-two state representatives decided school officials could banish students for activity away from school if “the activity may reasonably be considered to be an interference with school purposes or an educational function” or “the student’s removal is necessary to restore order or protect persons on school property; including an activity during weekends, holidays, other school breaks, and the summer period when a student may not be attending classes or other school functions.”

The law appears to be a reaction to a successful lawsuit filed against Smith-Green Community Schools for suspending two girls from extracurricular activities for posting photos from a summer slumber party online. Yet a U.S. District Court upheld the girls’ lawsuit on constitutional free speech grounds, and it seems doubtful this heavy-handed attempt to allow schools to regulate students’ behavior in their homes would change the outcome.

That would be HB 1169, which the ILB quoted in full in this entry from Jan. 31st, and included the rollcall.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Indiana Government

Ind. Gov't. - Jim Shella reports ...

"Indiana Democratic Party will go the state Appeals Court this afternoon asking that Vop Osili be named Secretary of State."

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending February 3, 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, February 3, 2012. It is one page (and 10 cases) long.

Two transfers were granted last week:

Details to follow.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Indiana Transfer Lists

Ind. Law - Allen County Registry warns when sex offenders move

Archie Ingersoll had a long report yesterday in the Fort Wayne Journal Gazette on the Allen County set-up. It begins:

Allen County is home to more than 410 registered sex offenders, and every time one of them moves, state law requires that person to notify police.

“Consistently, we have in the neighborhood of 50 or more address changes monthly,” said Cpl. Mike Smothermon, a detective who tracks sex offenders for the sheriff’s department. “People just don’t realize how often these moves take place. They don’t know who’s moving in or out of their neighborhood.”

For those residents who want to know, there is a way. The county’s sex-offender website lets people enroll to receive email alerts when an offender moves within a certain distance of their home.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Indiana Law

Ind. Law - "Push for state-wide crackdown on meth stalls"

Eric Bradner reported yesterday in the Evansville Courier & Press in a long story beginning:

INDIANAPOLIS — As police continue breaking records for meth lab busts, a new system has halted the sale of thousands of boxes of cold medicines that contain an essential ingredient for making the illicit drug that is ravaging Southwestern Indiana.

However, law enforcement is giving the instant "meth check" electronic tracking program, which operates at all of Indiana's pharmacies, reviews that are mixed at best. Some state lawmakers are calling for yet a stronger crackdown, but proposals this year have stalled and time is running short in the current session of the Indiana General Assembly.

As of Jan. 1, all of Indiana's pharmacies had to have the system that blocks one-time purchases of more than 3.6 grams of drugs containing pseudoephedrine and disallows more than 7.2 grams to be purchased every 30 days. Currently 1,169 pharmacies use the system.

Because of the red flags raised by the system, the sale of 11,885 boxes of medicine was stopped by pharmacists. The system, called the National Precursor Log Exchange, also is in place in Kentucky and Illinois, stopping sales across state lines.

Does it matter? The latest data show 2011 broke 2010's record number of meth labs discovered — law enforcement officials say.

"Quite frankly, we don't expect this to solve any meth lab problem. We never did," said Indiana State Police 1st Sgt. Niki Crawford, who heads the meth suppression section.

Part of the problem, she said, is that the data showing who buys what and when is not arriving in a format Indiana State Police can use. The state is working with Appriss Inc., the technology provider for the meth check system, to fix the bugs.

"We have not found it helpful. I haven't received any records I can use from them yet," Crawford said.

Eventually, she said, officers hope to use the data to more easily identify regular buyers of large quantities of medicines that contain pseudoephedrine, and then use that information to track down meth makers.

However, those who make meth are adapting, too.

There is much more to the story.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Indiana Law

Ind. Law - "Crashes Put Spotlight On Indiana Licensing: Senior Drivers Don't Have More Restrictions"

WRTV 6 had the story yesterday - some quotes:

Some of the five storefront crashes that have occurred in the Lafayette area since Aug. 29 have involved senior citizens. But other than having their licenses renewed more frequently, those drivers don't have any more license restrictions than other drivers, Graig Lubsen, communication director for the Bureau of Motor Vehicles, told the Journal & Courier.

"The only thing that would stop them is failing the eye test," Lubsen said.

Most Indiana licenses are valid for six years. Drivers who are between 75 and 85 must renew their licenses every three years, and those who are 85 or older are issued two-year licenses.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Indiana Law

Ind. Gov't. - "For the Love of Children: Does boy's death point to larger problem?"

Virginia Black and Mary Kate Malone of the South Bend Tribune had a lengthy investigative story yesterday that may be part of a series, that begins:

A growing number of those involved in protecting Indiana’s children are alarmed at the quiet revamping of the state’s Department of Child Services — changes they say too often result in a reluctance to act appropriately on reports of abuse and neglect.

A Tribune investigation in the wake of the highly publicized beating death of 10-year-old Tramelle Sturgis in November and the deaths this year of several other Indiana children suggests that centralization, funding cuts and the mandated confidentiality of Child Protective Services is worrying social workers, doctors, program providers and even juvenile court judges.

After reports that Indiana’s record of protecting children was among the worst in the country, Gov. Mitch Daniels in 2005 appointed a new DCS director, creating a Cabinet-level position, and pledged more state money toward hiring more case managers in an effort to lower caseloads across the state.

Director James Payne, a former Marion County juvenile court judge for 20 years, has led the overhaul over the last few years, hiring and training 800 new case managers, instituting more consistent policies and creating more systems to review cases. He points to these changes as bringing Indiana’s policies more into line with those of other states.

But he has also led some sweeping changes that others who work in the system point to as serious missteps that are often failing children.

Much more to the story ...

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Indiana Government

Courts - "McDonald's strip-search hoax turned into movie without victim's knowledge"

Recall this ILB entry from March 27, 2010 headed "Kentucky Appeals court upholds $6.1 million strip-search verdict against McDonald's."

Saturday, the same reporter, Andrew Wolfson of the Louisville Courier Journal, reported in a long story that began:

The perverse tale of blind obedience to authority first unfolded eight years ago in a McDonald’s restaurant in Mount Washington, Ky., just south of Louisville, when an 18-year-old employee was subjected to a humiliating strip search orchestrated by a prank caller pretending to be a cop.

Now it may be coming to a theater near you.

“Compliance,” a movie based on the McDonald’s strip-search hoax case, premiered last month at the Sundance Film Festival in Utah and has been acquired by a major distributor, which expects to release it this summer.

Dozens of film-goers walked out of the debut and hecklers later screamed at director Craig Zobel that his 90-minute film was exploitative and misogynistic.

“Rape is not entertainment,” one of them yelled at a question-and-answer session with the director.

But critics generally have raved about the movie, which includes scenes with nudity and degradation. * * *

Louisville lawyer Ann Oldfather, who represented the victim, Louise Ogborn, said her former client didn’t know about the movie until she was contacted last week by a reporter.

Oldfather said the director had a moral obligation to approach Ogborn before making the film.

“Anybody who wanted to be responsible in telling this story should have made an effort to talk to the person who went through it,” Oldfather said.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Courts in general

Vacancy on Supreme Court 2012 - "Lake magistrate interviews Wednesday for Ind. Supreme Court seat"

Dan Carden had a story this weekend in the NWI Times about Lake County Magistrate Michael Pagano, "the youngest of 15 candidates seeking to replace retiring Chief Justice Randall Shepard on the Indiana Supreme Court."

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - Marion County Judge Marilyn A. Moores reflects on her year in Afghanistan with the Nat'l. Guard

From Indiana Court Times, this don't miss story begins:

Taking a year off from the bench of the Marion County Superior Court Juvenile Division to do a year of active duty military service in Khost, Afghanistan was one of the most exciting experiences of my life. As a JAG (Judge Advocate General, the army’s lawyers), I had spent my entire 25-year career in the Indiana National Guard mobilizing citizen soldiers—preparing their wills, powers of attorney and attending to their families’ legal issues during their soldier’s absence. Now I was going to be one of those soldiers.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Indiana Courts

Ind. Gov't. - Sentencing date set for Charlie White

Feb. 23 at 1:30 p.m.

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to Indiana Government

Law - "Kentucky weighs restoring voting rights to felons: State is one of four that bars people with records from polls"

A long story in the Sunday Louisville Courier Journal by Andrew Wolfson.

See this long Dec. 15, 2011 ILB entry on a releated issue - "Ind. Supreme Court rules on whether misdemeanant may be disenfranchised during period of imprisonment."

This has current implications ...

Posted by Marcia Oddi on Monday, February 06, 2012
Posted to General Law Related

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, February 5, 2012:

From Saturday, February 4, 2012:

From late Friday afternoon, February 3, 2012:

Posted by Marcia Oddi on Monday, February 06, 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 2/6/12):

Tuesday, February 7th

Next week's oral arguments before the Supreme Court (week of 2/13/12):

Monday, February 13th

Webcasts of Supreme Court oral arguments are available here.


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

Wednesday, February 8th

Thursday, February 9th

Next week's oral arguments before the Court of Appeals (week of 2/13/12):

Wednesday, February 15th

Thursday, February 16th

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, February 06, 2012
Posted to Upcoming Oral Arguments

Sunday, February 05, 2012

Ind. Gov't. - Charlie White speaks on his reaction to the jury verdict and his removal from office by the Governor

From Fox News this morning - a 7:49 minute interview with Charlie White on his reaction to the jury verdict and his removal from office by the Governor.

Posted by Marcia Oddi on Sunday, February 05, 2012
Posted to Indiana Government

Saturday, February 04, 2012

Ind. Gov't. - "After White's vote-fraud conviction, fight remains over secretary of state's office"

Carrie Ritchie has filed a long story this evening (look for it in tomorrow's Star), describing the incredible legal morass that is the Charlie White situation. It begins:

Fifteen months have passed since the polls closed in Indiana’s last secretary of state election. But the battle about who should hold the office is far from being finished.

There have been political challenges and a lawsuit; a criminal trial and a conviction but still no definitive result.

Simply put, it’s “a mess,” one political expert said.

Charlie White, the elected officer, was convicted of six felony charges — including voter fraud — early this morning, which removed him from office. But he could be reinstated on a technicality.

Meanwhile, Gov. Mitch Daniels appointed White’s chief deputy, Jerry Bonnet, as his interim replacement.

Democrats, however, claim they’ve won the office because a Marion County judge ruled that White was improperly registered to vote and therefore ineligible to run for secretary of state. White is appealing the ruling, which has not yet been enforced.

Posted by Marcia Oddi on Saturday, February 04, 2012
Posted to Indiana Government

Ind. Gov't - More on: In early hours of this morning, Charlie White out, Gov. immediately appoints replacement

Updating earlier coverage, here is Charles Wilson's updated AP story.

Posted by Marcia Oddi on Saturday, February 04, 2012
Posted to Indiana Government

Ind. Gov't. - Some thoughts about replacing Charlie White [Updated]

Here is the Governor's press release from 2:51 AM this morning, February 4, 2012:

Message from Governor Daniels about the Office of the Indiana Secretary of State:

“Effective immediately, I have appointed Jerry Bonnet, a Secretary of State employee since 2005, and currently chief deputy, to serve as Secretary of State on an interim basis. This is an exceptionally busy time in the Secretary of State’s office as signatures for president, U.S. Senate and governor are being certified this month. Jerry, a Yorktown native, has agreed to serve until I either select someone else to serve the remainder of the current term or until the prior occupant is reinstated.

“I have chosen not to make a permanent appointment today out of respect for the judge’s authority to lessen the verdict to a misdemeanor and reinstate the elected office holder. If the felony convictions are not altered, I anticipate making a permanent appointment quickly.

“Jerry Bonnet is a longtime employee who absolutely knows what should be done to provide the effective supervision and oversight the office requires.”

A copy of the appointment letter may be found here: http://www.in.gov/gov/files/Press/020412letter.pdf

The appointment letter says simply:
Pursuant to Indiana code § 5-8-1-38 there is now a vacancy in the office for Secretary of State. Under the authority given to me by the Indiana Constitution and Indiana Code § 3- 13-4-3, I hereby appoint you Secretary of State for the State of Indiana, effective immediately.
Notice that although the press release states this is an interim appointment the appointment letter itself does not.

Did the Governor do the "right thing" in appointing a replacement and saying Charlie could resume office if the convictions are reduced to misdemeanors? It does appear the statute builds in contingencies such as reduction in sentence.

Here are applicable provisions of IC 5-8-1-38, in the Chapter headed: "Impeachment and Removal From Office." According to this statute, the office became vacant by operation of law upon White's conviction.

(b) Any public officer convicted of a felony during the public officer's term of office shall:
(1) be removed from office by operation of law when:
(A) in a jury trial, a jury publicly announces a verdict against the person for a felony;
(B) in a bench trial, the court publicly announces a verdict against the person for a felony; or
(C) in a guilty plea hearing, the person pleads guilty or nolo contendere to a felony; and
(2) not receive any salary or remuneration from the time the public officer is removed from office under subdivision (1).
(c) The subsequent reduction of a felony to a Class A misdemeanor under IC 35-50-2-7 or IC 35-38-1-1.5 after the:
(1) jury has announced its verdict against the person for a felony;
(2) court has announced its verdict against the person for a felony; or
(3) person has pleaded guilty or nolo contendere to a felony; does not affect the operation of subsection (b).
(d) If the conviction is:
(1) reversed;
(2) vacated;
(3) set aside;
(4) for a felony other than a felony arising out of an action taken in the public officer's official capacity, reduced to a Class A misdemeanor under IC 35-50-2-7 or IC 35-38-1-1.5; or
(5) not entered because the trial court did not accept the guilty plea; and the public officer's term has not expired, the public officer shall be reinstated in office and receive any salary or other remuneration that the public officer would have received had the public officer not been removed from office.
(e) If the conviction is reversed, vacated, or set aside and the public officer's term has expired, the public officer shall receive any salary or other remuneration that the public officer would have received had the public officer not been removed from office.

(f) A vacancy in a public office caused by the removal of a public officer under this section shall be filled as provided by law. If a convicted public officer is reinstated, the person filling the office during the appeal shall cease to hold the office.

Subsection (g) states in part: "The person who is required or permitted to fill the vacancy must comply with IC 3-13."

It seems like a good thing that the Governor has named an interim or acting Secretary of State to manage the office until everything is sorted out. However, it also appears that the Governor does not have authority to officially fill the vacancy yet. The Governor's appointment letter (which says nothing about interim) indicates that his appointment has been made pursuant to IC 3-13-4-3. Here is that provision, as it exists today:

Sec. 3. (a) This section applies to a vacancy that occurs in a state office other than governor, lieutenant governor, or a judicial office. * * *
(d) A vacancy that occurs in a state office other than by resignation or death shall be certified to the governor by the circuit court clerk of the county in which the officer resided.

(e) The governor shall fill a vacancy in a state office by appointment of a person of the same political party as the officer who held the vacated office.

(f) The person who is appointed by the governor holds office for the remainder of the unexpired term and until a successor is elected and qualified.

As added by P.L.5-1986, SEC.9. Amended by P.L.3-1987, SEC.430; P.L.119-2005, SEC.1; P.L.225-2011, SEC.84.

Re "shall be certified to the governor by the circuit court clerk of the county in which the officer resided," we know that Charlie White resides in Marion County, so that would be Marion Circuit Judge Rosenberg, not Judge Nation, who presided over the Hamilton County trial. Until the Governor receives the certification from Judge Rosenberg, Hamilton County, therefore, it appears he cannot appoint a permanent replacement under IC 3-13-4-3 until he receives a certification from the Hamilton County Clerk. [Updated]

This discussion is separate from the issues raised by the civil case decided by Judge Rosenberg, now pending emergency transfer to the Supreme Court, which dealt with whether White was eligible and qualified to participate in the election for Secretary of State. Judge Rosenberg found against White in that case.

[Updated] Sorry, strike that most interesting part! I had it in my head White resides in Marion County, in the "seat of government." Still, Daniels must wait for a the certification, which presumably will follow sentencing.

Posted by Marcia Oddi on Saturday, February 04, 2012
Posted to Indiana Government

Ind. Law - Fenced hunting never really dead

Grace Schneider of the Louisville Courier-Journal reports that fenced hunting may be dead this year, but...

Some quotes from her long story:

For the last six years, the state of Indiana and a handful of owners of hunting preserve surrounded by high fences held a shootout in state court over whether the operations are legal under current law.

Then another group of fenced hunt preserve owners and deer breeders filed suit against the state last year — adding fuel to a controversy over whether Indiana should allow or ban captive hunting.

Preserve operators, deer breeders and other supporters of fenced hunting believe that the legislature needs to wipe the slate clean and clarify the rules, regardless of any outcome of the legal battles. * * *

Several traditional sportsman’s organizations, including the Isaak Walton League of America, and humane groups decry hunting enclosures as unethical and cruel. They say preserves violate the standard of “fair chase” because animals have no way to escape hunters as they can in a free-range situation. * * *

On Tuesday, the Indiana House passed a bill, 56-40, that would grandfather four existing hunting preserves, including Bruce’s in Harrison County, and set regulations to allow new preserves.

Both Gov. Mitch Daniels and Senate President Pro-Tem leader David Long, R- Fort Wayne, said they oppose lifting the ban on the hunting and don’t support the House action. Long also indicated he’d see the legislation doesn’t get a hearing.

Still, [Rodney Bruce, a plaintiff in the lawsuit and owner of a 120-acre hunting preserve Whitetail Bluff, west of Corydon] said Friday that he remains hopeful.

“If we don’t get it done this year, we’ll get it done next year. It’s far from over” this session, he added.

Among the supporters this year are the Indiana Farm Bureau and an association that represents nearly 400 Hoosier deer and elk farms.

Here is a long list of earlier ILB entries on fenced hunting.

Posted by Marcia Oddi on Saturday, February 04, 2012
Posted to Indiana Law

Not law - Power of social media to force change quickly

Amazing times. Yesterday we "watched" the first Indiana trial (where cameras are not yet allowed), covered beginning to end by Twitter. Next time there is a big Indiana trial I expect we can anticipate even more real time coverage and instant coordination between reporters and the public. No need for testimony reenactment by puppets here ...

The power of Twitter. It has forced political change in the Middle East. Here it is doing the same, albeit in a less cataclysmic way. We saw it over the last few days with Susan G. Komen - see this Politico story this morning by Keach Hagey that recaps both Komen and the earlier SOPA about-face in Congress. A few quotes:

The Susan G. Komen for the Cure foundation’s reversal of its decision that would have cut off funding for Planned Parenthood is likely to go down as a textbook case of the political power of social media.

For the second time in this very young year, following the social media-fueled stalling of the Stop Internet Piracy Act (SOPA) legislation last month, Twitter and Facebook are being credited with giving oxygen to a wildfire of protest that delivered profound, immediate political results in a way that would have been impossible just a few short years ago. * * *

A case in point was Andrea Mitchell’s tense interview with Komen founder Nancy G. Brinker on Thursday, during which she cited the overwhelmingly angry response to Komen’s proposed new policy was prompting on Twitter and other forms of social media.

“It used to be that media figures like Mitchell were very insulated – they spoke only to each other – but media figures also hear these citizen voices loudly and continuously as well, and that affects their coverage,” said Salon’s Glenn Greenwald. “Social media really has given a voice to huge numbers of people who were previously voiceless, who had to rely on others who had a platform to convey their messages. That has changed how these controversies play out, and I can’t recall a more vivid case than how quickly Komen was forced to retreat.”

The power of the online petition. See this Jan. 9th story by Chris Taylor of Reuters headed "As consumer power goes viral, company branding quakes." It begins:
Corporate America’s worst nightmare lives in a tiny one-bedroom apartment, loves browsing in flea markets and has a lop-eared brown and white pet rabbit named Crackers.

Meet Molly Katchpole. The 22-year-old Washington, D.C. resident has recently tangled with a couple of billion-dollar corporations, and cowed them into submission, without breaking a sweat.

Take Verizon Wireless, which had planned a $2 “convenience” charge for the privilege of paying a bill by phone or online. Katchpole, a Verizon user for eight years, was offended by the very idea that loyal customers could be penalized for paying what they owed. So she went on the website http://Change.org - organized a petition - and watched as it quickly racked up more than 165,000 signatures. As consumer outrage went viral, Verizon backpedaled within hours.

And how about Bank of America’s infamous $5 monthly usage fee for debit cards? It too was kiboshed, partly thanks to another Katchpole petition and 300,000 of her outraged brethren, at a time when the Occupy Wall Street movement had been pressuring banks.

“I’m not exactly sure what these companies are thinking,” says Katchpole * * *
“It’s so out of touch with reality and what their customers are going through. My Verizon petition was only up for about eight hours before they backed down.”

Also forced into a recent and embarrassing climbdown was video-streaming company Netflix, which had planned to spin off DVD rentals into a stand-alone service called Qwikster. User objections became so deafening that the notion was killed before launch. * * *

Such is the growing power of social media, which can make consumer complaints go viral and cause serious brand damage within days or even hours. While one person can’t topple a company, if that person is able to assemble an army of hundreds of thousands behind them, they become a force to be reckoned with.

Thanks to the increasingly savvy use of tools like Facebook and Twitter, the power balance between company and customer has been tilting in the latter’s favor.

Posted by Marcia Oddi on Saturday, February 04, 2012
Posted to General News

Ind. Gov't. - More on White conviction

Posted by Marcia Oddi on Saturday, February 04, 2012
Posted to Indiana Government

Ind. Courts - The status of bills of interest to the Judiciary

This week's Legislative Update, published by the Indiana Judicial Center, marks the end of the first half of the session with charts showing bills of interest that are moving on to the second house.

Posted by Marcia Oddi on Saturday, February 04, 2012
Posted to Indiana Courts

Ind. Gov't. - "State won't release toxicology lab results: Only prosecutors told what retesting of samples revealed"

Buried deep inside this morning's Indianapolis Star, on Super Bowl weekend, is this story by Tim Evans, who has covered the toxicology lab issues since 2010 (see list of ILB entries).

Warnings of problems with the state toxicology lab go back to 2009, when Tom Moor of the South Bend Tribune wrote about a serious backlog in getting results. A year later the Star wrote that the results were "slow and sloppy." Later that year began an investigative series in the Star about the accuracy of results. The Star has complied an archive of its 2011 state toxicology stories.

Some quotes from today's long story:

State toxicology officials know. Prosecutors know. But, apparently, the public may never be told the depths of drug testing problems at the troubled State Department of Toxicology.

The Indianapolis Star previously obtained from the Indiana University School of Medicine three separate reports from an independent lab that suggested sloppy work and unacceptable levels of testing errors at the state lab, which police and prosecutors use to evaluate evidence for criminal cases.

But the state, which took over the lab from IU last summer, informed The Star on Friday that it is refusing to disclose the results of a most recent retesting of positive blood samples. Those samples -- about 500 -- were taken for marijuana and cocaine cases from 2007 to 2009.

These specific results -- because they were retests of actual samples -- are viewed by forensic scientists and legal experts as particularly important. The results would be the most conclusive indicator yet of not only how bad the problems at the lab might be, but also whether people have been convicted of crimes based on evidence that is flawed. * * *

Fran Watson, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis, said there is a compelling need for the public to know the results. It goes, she said, to the heart of the integrity of our legal system.

"The more open they can be at this point, the more they are open about how this happened, who it happened to and why it will never happen again," she said, "the more faith people will have in the system."

The denial also appears to fly in the face of a recommendation that the state's new three-member toxicology advisory panel -- a group appointed by Gov. Mitch Daniels -- made to the governor in July.

"The results of the retesting . . . should be conveyed to the prosecutors, defense and public in understandable language," the panel wrote in its report to the governor. "In other words, the explanations made should explain the significance of the findings and what they mean in lay language."

Indianapolis defense attorney John Tompkins said he has a pretty good idea what the secrecy means -- in lay language.

"If the results were good," he said, "they would be telling us."

Tompkins said that after the much-publicized troubles with the lab -- which led to the state taking it over -- he can't imagine the state wouldn't immediately tout anything positive.

"This looks to me like a delay tactic to buy time," Tompkins said, "in the hope that people will just forget about it."

Posted by Marcia Oddi on Saturday, February 04, 2012
Posted to Indiana Government

Ind. Gov't - In early hours of this morning, Charlie White out, Gov. immediately appoints replacement

Here is the story posted at 5:00 am by Carrie Ritchie of the Indianapolis Star. Some quotes:

NOBLESVILLE, Ind. -- Indiana Secretary of State Charlie White was convicted of six felonies early this morning, and consequently lost his job. * * *

Shortly after White’s verdict was read, Gov. Mitch Daniels announced in a news release shortly before 3 a.m. that he has appointed Jerry Bonnet, White’s chief deputy, as interim secretary of state.

“I have chosen not to make a permanent appointment today out of respect for the judge’s authority to lessen the verdict to a misdemeanor and reinstate the elected office holder,” the Republican governor said in the news release. “If the felony convictions are not altered, I anticipate making a permanent appointment quickly.” * * *

White was not taken into custody after the verdict and a sentencing date has not been set.

After about 12 hours of deliberation, a jury convicted White of three counts of voter fraud, two counts of perjury and one count of theft.

He could face six months to three years in prison on each of the counts.

White was acquitted of his most serious charge, fraud on a financial institution, a class C felony. * * *

Prosecutors said this morning that they are satisfied with the verdict and that they plan to fight White’s request to convert the charges to misdemeanors.

“Our position is the jury convicted him of six felonies,” Dowd said, “and we believe that he should be sentenced on the basis of six felonies.”

Even if White’s convictions are reduced to misdemeanors and he’s reinstated, he could still lose his job because of a civil challenge to his election that is making its way through the courts system.

The Democrats argued before the Indiana Recount Commission that White should be removed from office was ineligible to run for secretary of state in 2010 because he was improperly registered to vote at his ex-wife’s house. The Recount Commission ruled against the Democrats last June, so the party asked a Marion County judge to review the panel’s decision. A Marion County judge ruled in favor of the Democrats last December, and said White’s Democratic opponent, Vop Osili, should take office.

However, the judge stayed his decision until an appeal from White and the Indiana Recount Commission can be heard.

Karen Celestino-Horseman, an attorney for the Democrats who watched White’s trial, said that his conviction doesn’t change the Democrats’ belief that Osili should take office, even though the law allows the governor to appoint officials’ successors if they’re removed from office because of a conviction.

She said that the court has already declared Osili the rightful winner.

The Indiana Supreme Court has been asked to take the appeal directly so it can skip the Court of Appeals. The state’s highest court hasn’t decided yet whether to take the case.

Each of three Indianapolis TV stations, 6, 8 and 13, has a long story this morning. Here are some quotes. From WRTV 6:
Per Indiana law, White cannot continue to serve as secretary of state because he has a felony conviction, and Gov. Mitch Daniels moved quickly to appoint Jerry Bonnet, an employee of the office since 2005, to the job on an interim basis.

"This is an exceptionally busy time in the secretary of state's office, as signatures for president, U.S. Senate and governor are being certified this month," a statement from Daniels read. "Jerry, a Yorktown native, has agreed to serve until I either select someone else to serve the remainder of the current term or until the prior occupant is reinstated."

From WISHTV 8:
The jury began deliberating after lunch Friday and returned the verdict around 2:20 a.m. Saturday. * * *

White will be sentenced at a later date, possibly early to mid-week next week.

A guilty verdict means that Charlie White can no longer serve as secretary of state, but there will be a fight over his replacement and who picks that replacement.

The normal chain of events would call for Gov. Mitch Daniels to fill the vacancy, and Daniels, a Republican, would almost certainly choose another Republican.

However, it's likely Democrats will turn to the courts in an effort to prevent a Daniels selection. That's because a Democratic Party challenge to White's election has already produced a ruling from Judge Louis Rosenberg that calls for the Republican White to be removed and replaced by the second place finisher in the 2010 election, Democrat Vop Osili, who now serves on the Indianapolis City County Council.

Rosenberg's ruling is on hold by order of the state Supreme Court. And it is the Supreme Court that will likely decide how White's replacement will be chosen.

In addition, White's attorneys said they would attempt to get the original felony criminal charges reduced to misdemeanors, in which case a guilty verdict would not mean automatic removal from office for White.

For the time being, however, White has been removed from office, at least temporarily. In response to the verdict, Daniels appointed Jerry Bonnett as interim secretary of state. Bonnett has worked in the secretary of state's office since 2005, Daniels said, and was most recently serving as chief deputy.

From WTHR 13:
The jury began deliberating at 2:00 pm. They came back at about 1:30 a.m. Saturday after deliberating for nearly 13 hours.

White spoke to Eyewitness News after the verdict, and was disappointed with the decision. "Disappointed for my family and the people who supported me," White said. "We will review all of our options. A lot of things we've objected to all this time and fight another day."

[More] The Star has compiled a timeline.

Here is a list of all the ILB's many Charlie White entries.

Posted by Marcia Oddi on Saturday, February 04, 2012
Posted to Indiana Government

Friday, February 03, 2012

Courts - Banks created "bizarre and complex end-around of the traditional public recording system"

MERS in the spotlight. "New York Sues 3 Big Banks Over Mortgage Database" is the headline to a story from Reuters posted tonight by the NYT. A few quotes:

Attorney General Eric T. Schneiderman of New York sued three major banks on Friday, accusing them of fraud in their use of an electronic mortgage database that he said resulted in deceptive and illegal practices, including false documents in foreclosure proceedings. * * *

The database, called the Mortgage Electronic Registration System or MERS, was created in the mid-1990s for tracking mortgage ownership. * * *

“The mortgage industry created MERS to allow financial institutions to evade county recording fees, avoid the need to publicly record mortgage transfers and facilitate the rapid sale and securitization of mortgages en masse,” Mr. Schneiderman said.

“By creating this bizarre and complex end-around of the traditional public recording system,” Mr. Schneiderman’s lawsuit asserts, the banks saved $2 billion in recording fees.

More than 70 million mortgage loans, including millions of subprime loans, have been registered in the MERS system, rather than in local county clerks’ offices, according to the lawsuit.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Courts in general

Ind. Gov't. - Stories to read while the Charlie White jury is deliberating

Carrie Ritchie in the Indy Star: "Jury deliberating Charlie White's vote-fraud charges."

Charles Wilson of the AP: "Ind. election chief's voter fraud trial nears end."

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Indiana Government

Ind. Decisions - Two 7th Circuit opinions today from Indiana

In Larry Davis v. Kris Ockomon, et al. (SD Ind., Lawrence), a 14-page opinion, Judge Kanne writes:

Larry Davis was terminated from his position as Senior Humane Officer (“SHO”) for the City of Anderson after refusing to support the successful mayoral campaign of Kris Ockomon. Davis brought suit in district court, claiming that the position of SHO was not subject to political termination and that his dismissal violated the First and Fourteenth Amendments. The district court, relying on an official job description, found that the SHO was a policymaking position, and therefore Davis could be dismissed for political reasons. We affirm on the basis that City ordinances authorized the SHO to exercise policymaking discretion. * * *

We find the applicable ordinances vest the SHO with policymaking authority and render political loyalty an appropriate consideration. Therefore, we AFFIRM the judgment of the district court.

In US v. Eller (ND Ind., Miller), an 11-page opinion, Judge Bauer writes:
On August 13, 2009, Gregory G. Eller was indicted for one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1), one count of possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c), and one count of possession of a firearm by an unlawful user of a controlled substance in violation of 18 U.S.C. § 922(g)(3). Eller pleaded guilty to the first and third counts, and not guilty to the second count. A jury convicted Eller on the second count and the court sentenced him to 60 months in prison, to be served consecutively to his sentences for counts 1 and 3, followed by three years of supervised release, and a $300 special assessment. This appeal followed. We affirm.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

John D. Jenkins Revocable Living Trust, John D. Jenkins, Trustee v. Peru Utility Service Board, City of Peru and Peru Common Council (NFP)

NFP criminal opinions today (3):

Elmer J. Bailey v. State of Indiana (NFP)

Roslyn Adkins v. State of Indiana (NFP)

Jerry Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Ind. App.Ct. Decisions

Vacancy on the Supreme Court 2012 - Schedule and applications now posted

Here is the interview schedule.

Here are the photos and applications of the 15 candidates.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Vacancy on Supreme Court 2012

Courts - More on "9th Circuit won't release CA gay marriage trial videos"

Yesterday we learned (ILB entry here) the 9th Circuit won't permit the release of the video of the Prop. 8 trial, but today the WSJ Law Blog has an entry by Joe Palazzolo that begins:

The Proposition 8 trial has already been done on Broadway. Now it’s headed to Tinseltown with a fresh cast, including George Clooney as David Boies (Boies, Schiller & Flexner) and Martin Sheen as Ted Olson (Gibson, Dunn & Crutcher).

The two will read selections from the 2010 trial over California’s voter-mandated gay marriage ban.

The headline: "Clooney Lands Role of a Lifetime: Playing David Boies in ’8′."

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Courts in general

Vacancy on the Supreme Court 2012 - Applicant Information And Interview Times Of Those Seeking Position On High Court?

Interviews scheduled to start next Wednesday. Watching for info to be posted for public review ...

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - "Gibson County attorney convicted of child pornography faces voyeurism charges"

The Jan. 31st COA ruling in William R. Wallace v. State of Indiana is the subject of a story today by Mark Wilson of the Evansville Courier & Press. Some quotes from the long story:

PRINCETON, Ind. — A Gibson County attorney already sentenced for possessing child pornography and obstructing justice can be charged with voyeurism, the Indiana Court of Appeals has ruled.

However, the ruling is unclear in its scope and could have broader legal ramifications, said Scott Danks, the attorney representing William R. Wallace III, in the case.

“My concern with the ruling is that it’s a real slippery slope. This could make it illegal to have security cameras in your house,” Danks said. * * *

The law under which Wallace was charged is often referred to as the peeping statute. It is a misdemeanor but becomes a felony if it is done with a camera.

It is meant to apply to peeping into places where people can be expected to disrobe, not situations of consensual sex in which both people can expect the other will see them naked, Danks said.

“To me, the clear intent of the statute is the peeping. The peeping aspect just doesn’t apply here,” he said.

While neither side has disputed that the recording was made, Danks said the ruling doesn’t distinguish between recording made by security cameras as part of everyday use and situations such as Wallace’s. He said it could affect those who keep security systems inside their own homes to protect against false allegations.

“Wallace’s intent was different. He was recording it for his own pleasure. His intent was different and I think they need to clarify that,” Danks said. “I think they just need to make a distinction.”

The opinion, by a panel of three judges, upheld Penrod’s decision not to dismiss the charge “because the alleged facts, if ultimately proven true, could support a conviction for Class D felony voyeurism.”

The opinion by Judges Cale Bradford and James Kirsch said the voyeurism charge would apply because Wallace turned on the camera — in a laptop computer, according to Danks — before she entered the room and left it running afterward.

In a separate but concurring opinion, Judge Michael Barnes said he was reluctant to agree because of the voyeurism statute’s wording.

“Make no mistake, Wallace’s alleged conduct was hardly chivalrous, and he defines the word cad,” Barnes wrote. “However, the voyeurism statute was drawn primarily to punish persons who peep into bathrooms, locker rooms, dressing rooms and the like.”

But he said the camera Wallace set up did peep. “Although a camera by itself cannot commit a crime, the recording it made permitted Wallace to repeatedly view (the woman) naked and engaging in sex with him. (She) did not consent to being seen naked repeatedly by Wallace,” Barnes wrote.

He said that action fit the General Assembly’s definition of peeping as a “looking of a clandestine, surreptitious, prying or secretive nature.”

the intent of the peeping statute did not fit the consensual nature of the encounter between Wallace and the woman.

See also this ILB entry from Feb. 1st.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Indiana Secretary of State Charlie White declines to testify at his trial"

Here is Carrie Ritchie's story in this morning's Indianapolis Star on yesterday's events in the White election fraud trial. From the story:

[W]hen it came time Thursday for him to tell a Hamilton County jury his side of the story, White passed.

His attorney, former Marion County Prosecutor Carl Brizzi, said the defense would present no evidence or witnesses in White's favor.

It's a risky move, said Joel Schumm, a professor at Indiana University's Robert H. McKinney School of Law in Indianapolis, but it might pay off.

Schumm said it's not uncommon, and it sometimes helps defendants win because it can call a jury's attention to the state's lack of evidence.

But, he said, "I think sometimes it can backfire if the jury perceives the state's case as being strong and they don't have anything else to look at."

White could know today whether his risk will be rewarded. Both sides will present their closing arguments this morning, and then the jury will begin deliberating.

That means the jury could reach a verdict today.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Indiana Government

Indd. Courts - "Milwaukee attorney banned from federal courts in Wisconsin, Illinois and Indiana."

The 7th Circuit decision from Feb. 2, 2012 is In Re: Bridget Boyle-Saxton.

Today Bruce Vielmetti of the Milwaukee Journal Sentinel has the story. It begins:

If you're a lawyer, it's never wise to ignore "orders to show cause," especially when they're coming from a federal appeals court.

Milwaukee criminal defense attorney Bridget Boyle-Saxton learned that the hard way Thursday, when the U.S. 7th Circuit Court of Appeals banned her from further practice in the federal courts in Wisconsin, Illinois and Indiana. Boyle handles a significant number of cases in federal court.

"She is unfit to practice law in this court," the court ordered. "Abandonment of a client in a criminal case is reprehensible. Ignoring orders entered by a court is inexcusable. We have disbarred lawyers in similar circumstances."

Boyle-Saxton said Thursday she hadn't seen the order and seemed surprised. She did not respond to a request for comment by the end of Thursday.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Indiana Courts

Ind. Courts - "WLKY Investigates: Paying For Prosecutor’s Problem"

A fascinating story from WLKY.com, Louisville, relating to Floyd County Prosecutor Keith Henderson. Recall that Henderson:

... the lead prosecutor in Camm’s second murder trial had privately signed an agreement to write a book about the case in 2006, shortly after Camm’s conviction.

But the Camm case wasn’t over. His conviction was overturned for a second time.

Defense attorneys seized on Henderson’s book deal.

In 2009, Camm’s attorney, Richard Kammen, announced, “It’s all about the book,” as he filed a motion to appoint a special prosecutor and remove Henderson from the case because of the claim of conflict.

As has been reported in earlier IBL entries, the trial court found no conflict, the COA found there was indeed a conflict, and a transfer petition filed by AG Zoeller is now pending before the Supreme Court.

Now more from the lengthy WLKY story, reported by Duane Pohlman:

While the question of conflict is now before the Indiana Supreme Court, there is another issue the prosecutor faces: an ethics complaint filed with the Indiana Disciplinary Commission, which investigates claims of attorney misconduct.

While the commission cannot confirm there is a complaint, there is plenty of paperwork to show it exists, primarily bills from the prosecutor’s legal team.

That team of attorneys is with Frost Brown Todd LLC, in Indianapolis. Records show they are charging Henderson $375 an hour to deal with the complaint. The total legal bill already totals nearly $10,000.

Last June, Henderson asked for and got the Floyd County commissioners to pay the legal bills associated with the complaint. * * *

"If they made the decision to pay him, that's beyond me,” criminal defense attorney Bart Adams said.

Adams is not associated with the case. WLKY asked him what he thought of the prosecutor getting reimbursed for his legal fees to defend against an ethics complaint.

"He was asking as an individual and not within the scope of his duties, because he was attempting to enrich himself by the selling of this book," Adams said. “Had it been me, I never would have asked for reimbursement."

See the WLKY story for much more.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Indiana Courts

Thursday, February 02, 2012

Ind. Courts - Expedited Super Bowl court deemed success

Watch this evening's story on WRTV 6. A sample:

A first-of-its-kind court aimed at expediting complaints against those found in violation of local ordinances is also proving successful, officials said.

"We are not aware of any other Super Bowl jurisdiction that has done something like this, so it really has been an experiment," said City Prosecutor Hellen Marchal.

Just in the last week, code enforcement officials have issued 18 citations for unlicensed cab companies, peddle cab operators with unsafe equipment, mobile advertisers and individuals handing out free samples of products and merchandise.

Posted by Marcia Oddi on Thursday, February 02, 2012
Posted to Indiana Courts

Ind. Decisions - Supreme Court posts one in early evening

Notice of posting just tweeted by Court's press office.

In Michael B. Adams v. State of Indiana, a 10-page, 5-0 opinion, Chief Justice Shepard writes:

The question here is whether an automobile passenger riding down the highway with a jar of marijuana between his legs can be found to have “used the vehicle” in committing the offense of possessing marijuana. We conclude that he can. * * *

When viewed in the light most favorable to the judgment, the evidence shows that Adams possessed a jar of marijuana by keeping the jar on the floorboard in front of him while he sat in the passenger seat. As a result, this is not a situation in which a defendant merely happened to possess a small bag of marijuana in his pocket without making any direct use of the vehicle to do so. Indeed, the trial court could well have found that Adams used the floorboard of the front well to possess the jar so Trooper Caddell would not catch him holding it in his hands when Trooper Caddell came to the window.

As a result, we think the court properly ordered Adams’s driver’s license, registration, and ability to register other vehicles suspended, as the statute left the court no discretion in the matter.

Posted by Marcia Oddi on Thursday, February 02, 2012
Posted to Ind. Sup.Ct. Decisions

Courts - "9th Circuit won't release CA gay marriage trial videos"

New AP story in the Seattle Times, reported by Lisa Leff, subheaded "A federal appeals court refused Thursday to unseal video recordings of a landmark trial on the constitutionality of California's same-sex marriage ban." A quote:

[T]he 9th U.S. Circuit Court of Appeals in San Francisco ruled the public doesn't have the right to see the footage.

The 2010 trial lasted 13 days and was the first in a federal court to examine if prohibiting gay couples from marrying violates their constitutional rights.

It was open to the public and received widespread media coverage, so the recordings would not have revealed any new evidence or testimony.

ILB: As reported by the ILB earlier, because the video has been tied up in court, the California district court trial transcripts have served as the text of a Broadway play. So no need for resort to puppet videos, as in Ohio.

[More] Lyle Deniston of SCOTUSblog has analysis ansd a link to the opinion here.

Posted by Marcia Oddi on Thursday, February 02, 2012
Posted to Courts in general

Ind. Decisions - More on 7th Circuit rules on: Superfund used to justify $28,000 bill to fight fire at couple's home

In addition to this ILB entry cited in the earlier post today, see this ABC NEWS report from Feb. 4, 2010, titled "Fire Departments Charge for Service, Asking Accident Victims to Pay Up."

Posted by Marcia Oddi on Thursday, February 02, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides 2 additional Indiana cases today

In Brown v. Bowman (ND Ind., Springmann), an 18-page opinion, Judge Cudahy writes:

This case involves the scope of the Rooker-Feldman doctrine and whether the district court properly applied that doctrine to appellant’s 42 U.S.C. § 1983 claims. In April 2007, appellant Bryan Brown applied for admission to the Indiana Bar. As part of his application process, the Indiana Board of Law Examiners (BLE) requested that Brown attend hearings to investigate his application and also required Brown to be evaluated by mental health professionals. The BLE ultimately denied Brown’s admission application and, after exhausting his appeals to the Indiana Supreme Court and the United States Supreme Court, Brown brought suit in the district court. His complaint, lodged against various state actors involved in his application process, alleged that the evaluation of his application focused on his religious beliefs (ostensibly Roman Catholic) and violated his constitutional rights. The district court dismissed his complaint without prejudice for lack of subject matter jurisdiction under Rooker-Feldman. The district court also found that the defendants were immune from civil suit. On appeal, Brown raises two issues: (1) whether the district court erred in dismissing his federal suit under Rooker-Feldman; and (2) whether the district court erred in finding that defendants were entitled to immunity. For the reasons that follow, we affirm the district court’s finding that Rooker-Feldman applies and decline to assess whether the district court was correct in ruling in the alternative that the defendants were immune from suit.

In US v. Zahursky (ND Ind., Lozano), a 6-page opinion, Judge Wood writes:

This is Erik Zahursky’s second appeal to this court. In 2007, a jury convicted Zahursky of attempting to coerce or entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b)—an offense for which Zahursky received a 262-month prison term. Zahursky appealed, challenging both his conviction and a sentencing enhancement based on § 2G1.3(b)(2)(B) of the sentencing guidelines. We affirmed the conviction, but we vacated Zahursky’s sentence and remanded, ruling that § 2G1.3(b)(2)(B) was inapplicable. On remand, the district court, relying in part on § 2G1.3(d) of the guidelines, sentenced Zahursky to 210 months in prison. Zahursky appeals again, arguing that our earlier ruling precludes not only the section (b) enhancement, but also the section (d) enhancement. Although § 2G1.3(d) may not apply, we find that Zahursky has forfeited this argument and therefore affirm his sentence.

Posted by Marcia Oddi on Thursday, February 02, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Both sides rest in Charlie White case

Posted by Marcia Oddi on Thursday, February 02, 2012
Posted to Indiana Government

Ind. Decisions - 7th Circuit rules on: Superfund used to justify $28,000 bill to fight fire at couple's home

On March 23, 2010, the ILB had a long entry headed "Environment - More on: Superfund used to justify $28,000 bill to fight fire at couple's home," which is well worth rereading.

Today, in the case of EMERGENCY SERVICES BILLING CORPORATION, INC. (ESBC), individually (and as agent for) agent of Westville Volunteer Fire Department v. Allstate (ND Ind., http://indianalawblog.com/archives/2012/02/ind_govt_both_s.html), a 21-page opinion, Judge Flaum writes:

This appeal concerns the interpretation of the phrase “consumer product in consumer use” in the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). 42 U.S.C. §§ 9601 et seq. Plaintiff-appellant, Emergency Services Billing Corporation (“ESBC”), is the billing agent for the Volunteer Fire Department of Westville (“Fire Department”), a town in central Indiana. ESBC brought this action against individuals who were involved in motor vehicle accidents and the insurance companies that represent those individuals. Under CERCLA, the owner of a “facility” from which hazardous substances have been released is responsible for the response costs that result from the release. ESBC believes that personallyowned motor vehicles fall within the definition of “facilities” under CERCLA. Thus, ESBC charged the individual defendants, and therefore the insurance company defendants, with the response costs relating to their respective car accidents. Defendants argue that personal motor vehicles fall under CERCLA’s “consumer product in consumer use” exception to the definition of “facilities,” and they have refused to pay ESBC for the response costs. ESBC has asked for declaratory relief in the form of a confirmation of the defendants’ liability under CERCLA.

The district court held that motor vehicles for personal use do, in fact, fall under the “consumer product in consumer use” exception to CERCLA’s definition of facility, and that defendants cannot be charged with the Fire Department’s costs for responding to the car accidents. ESBC appeals, challenging the district court’s interpretation of CERCLA. For the following reasons, we affirm the district court’s dismissal of ESBC’s suit. * * *

The purpose of the exclusion, therefore, is clearly to prevent consumers— all consumers—from being held liable under CERCLA, despite ESBC’s claims that this broad remedial scheme must cover car accidents. ESBC offers no support from CERCLA’s legislative history that a category as large as personal motor vehicles should be excluded from the definition of consumer products, nor can we think of a reason for this exclusion.

Posted by Marcia Oddi on Thursday, February 02, 2012
Posted to Environment | Ind. (7th Cir.) Decisions | Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Jeffrey Allen Rowe v. William K. Wilson (NFP)

Alex R. Voils, Jr., Vicki L. Voils v. Everhome Mortgage Co. (NFP)

Term. of Parent-Child Rel. of A.C., a minor child, and her Father, D.B.; D.B. v. Indiana Dept. of Child Services, and Child Advocates, Inc. (NFP)

NFP criminal opinions today (1):

Eric C. Roach v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 02, 2012
Posted to Ind. App.Ct. Decisions

Law - "3 Chicago law schools sued by graduates"

Ameet Sachdev of the Chicago Tribune reports this morning:

Three Chicago law schools were sued Wednesday for allegedly deceiving students by inflating post-graduate employment information.

The allegations were made in three separate lawsuits brought by recent graduates of John Marshall Law School, IIT Chicago-Kent College of Law and DePaul University College of Law. The allegations in each complaint are similar.

The alumni accuse the law schools of falsely advertising for several years since 2000 that 90 percent or more of its students were employed nine months after graduation. They allege that the numbers included students with any kind of job, even ones that had nothing to do with the legal industry.

The plaintiffs also allege the schools inflated the average salaries paid graduates because they were based on a small, deliberately selected sample of high-earners.

The graduates said they relied on the data in deciding where to attend law school. Contrary to the school's rosy representations of the job market, the students graduated with limited job prospects and mounting debt.

See the whole story here.

Posted by Marcia Oddi on Thursday, February 02, 2012
Posted to General Law Related

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

Updating this ILB entry from Jan. 29th, today the Fort Wayne Journal Gazette has an editorial on the Supreme Court's most recent pilot for trial courts. Some quotes:

The Indiana Supreme Court is trying again. This time it has arranged for an 18-month pilot project allowing a northwest Indiana newspaper to show proceedings via webcast in three Lake County courtrooms.

Even this pilot is arguably too restrictive. Webcasts will be delayed, not live, and the judges will have wide discretion to order a proceeding or portions of a proceeding not to be shown to the public. Parties involved can ask that proceedings not be subject to webcast, though, unlike the previous pilot, they will not have veto power. The judges will “determine in open hearing whether the interests of justice and public education warrant webcasting or not” under the state Supreme Court’s order that sets guidelines for the pilot project. * * *

While four of the court’s five justices approve of the Lake County pilot, Justice Brent Dickson, sadly, disapproves, just as he did before the earlier experiment. In 2006, Dickson wrote: “The possibility of being televised to neighbors and others can be embarrassing or frightening to some, and alluring and captivating to others. The public broadcast of personal or unpleasant information is often a risk to be avoided at all costs. Others are fascinated or energized by the possibility of appearing on television, and will engage in a variety of antics to get camera attention.”

Dickson seems to downplay the fact that courts are open to the public, and Hoosiers have every right to witness what happens in open court. As for witnesses or lawyers playing to the camera, judges are perfectly capable of making sure participants follow strict courtroom protocol.

With the General Assembly on the Web and numerous City Council meetings on cable TV, Hoosiers are able to witness the activities of their legislative branch of government. It’s time Indiana take a step – and this pilot is nothing more than a baby step – toward opening the judicial branch to greater public view.

ILB: Meanwhile, as the ILB noted in the Jan. 29th post, lacking cameras, other alternatives do exist, such as using puppets to reenact courtroom scenes. More on that from NPR's Morning Edition today, which this morning summarizes its 2 min 40 sec audio story:
A high-profile corruption trial in Cleveland is being re-enacted on a local news station using puppets. Cameras are barred from the courtroom so the station has come up with a unique way to show what's been going on in the courtroom. A former county commissioner and seven others face prison terms for a pay-to-play scheme.
A thought. In a number of stories I've read over the years, various judges and justices have argued against cameras in courtrooms, saying that the media might broadcast snippets of the testimony out-of-context. So in Ohio reporters are writing down the testimony and it is performed on TV by puppets. Is this a better option?

Posted by Marcia Oddi on Thursday, February 02, 2012
Posted to Indiana Courts

Ind.Law - Check out new blog, the Indiana Property Tax Reporter

The Indiana Property Tax Reporter, a new blog started a few days ago by Carol S. Comer, provides valuable specialized tax and local government information and also could become a very useful long term resource.

Judge Comer, a Senior ALJ with the Tax Board, went through the state ethics commission to ensure the blog wasn't a conflict. She writes:

I was putting all this research together as part of what I was doing as an ALJ - and it was all public information - and I always thought "other people should have access to this!" Hence the blog.

I envision publishing Board decisions and Tax Court decisions on property tax matters, keeping readers apprised of legislative endeavors, publishing the status of Tax Court proceedings as the appeals work their way through the process, publishing hearing dates, linking to assessment information through the DLGF and searching news sources for local property tax issues.

The blog is in its infancy, refinements are forthcoming. But for now, take a look at the new blog here. As I told Judge Comer, I've seen a variety of Indiana law blog ideas come and go over the years, but this one has identified a real need and is in very capable hands.

Posted by Marcia Oddi on Thursday, February 02, 2012
Posted to Indiana Law

Vacancy on Supreme Court 2012 - More stories today from the print press

Supplementing this ILB entry from Jan. 28th, which linked to local stories on several of the candidates, Ron Wilkins has a story today in the Lafayette Journal Courier on applicant Rebecca Trent of West Lafayette, a partner in the law office of Robert Little and a general practitioner.

Posted by Marcia Oddi on Thursday, February 02, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - Day 2 of Charlie White trial wrap-up; today may mark end of prosecutor's presentation

Updating this ILB entry from Feb. 1, Carrie Ritchie's story today in the Indianapolis Star is headed: "Cellphone records to be called in Indiana Secretary of State Charlie White's trial." The story begins:

NOBLESVILLE, Ind. -- A Sprint representative could shed light today on where Indiana Secretary of State Charlie White lived while he campaigned for office in late 2009 and 2010.

Prosecutors say White's cellphone records will show he lived in a townhouse with his then-fiancee -- instead of in a home with his ex-wife, as he has claimed.

Evidence on where White lived during that time could convince a Hamilton Superior Court jury as to his guilt or innocence on seven felony charges, including voter fraud and theft. The trial resumes at 9 a.m. today.

Prosecutors allege that White broke the law when he voted in the May 2010 primary because he was living in the townhouse instead of his ex-wife's house, where he was registered to vote.

Posted by Marcia Oddi on Thursday, February 02, 2012
Posted to Indiana Government

Wednesday, February 01, 2012

Ind. Law - Video archives of 2012 Senate floor action?

You can watch the Senate floor action as it happens via the Senate's live streaming. You can watch the Senate archives of last year (2011) and several earlier years.

But what about yesterday? It appears you are out of luck!

Not so with the House, which archives each 2012 session day.

Why am I not finding a Senate video archive for 2012? Is this an oversight?

Posted by Marcia Oddi on Wednesday, February 01, 2012
Posted to Indiana Government

Environment - Fenced hunting dead; how about bill allowing silencers for hunters?

Posted by Marcia Oddi on Wednesday, February 01, 2012
Posted to Environment

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

This ILB entry from yesterday, Jan. 31st, had a photo of the Supreme Court library table with the 15 applications, awaiting review.

Here now, via the Court's photo bank, are six photos of the "press and public" viewing the applications during the scheduled hour-long opportunity.

Prof. Joel Schumm is seated at the head of the table in the photos. To his right, in the jacket and tie, is Dan Carden from the NWI Times. To Schumm's left, in sweater, is Joby Jerrells, a finalist for the Tax Court spot last year.

DSC_0015

Posted by Marcia Oddi on Wednesday, February 01, 2012
Posted to Vacancy on Supreme Court 2012

Environment - "Report proposes dividing Great Lakes, Mississippi"

A long AP story by John Flesher, AP Environmental Writer, dated January 31, 2012, begins:

TRAVERSE CITY, Mich. (AP) — Groups representing states and cities in the Great Lakes region on Tuesday proposed spending up to $9.5 billion on a massive engineering project to separate the lakes from the Mississippi River watershed in the Chicago area, describing it as the only sure way to protect both aquatic systems from invasions by destructive species such as Asian carp.

The organizations issued a report suggesting three alternatives for severing an artificial link between the two drainage basins that was constructed more than a century ago. Scientists say it has already provided a pathway for exotic species and is the likeliest route through which menacing carp could reach the lakes, where they could destabilize food webs and threaten a valuable fishing industry.

“We simply can’t afford to risk that,” said Tim Eder, executive director of the Great Lakes Commission, which sponsored the study with the Great Lakes and St. Lawrence Cities Initiative. “The Great Lakes have suffered immensely because of invasive species. We have to put a stop to this.”

The report, from the Great Lakes Commission, "an interstate compact agency that promotes the orderly, integrated and comprehensive development, use and conservation of the water and related natural resources of the Great Lakes basin and St. Lawrence River," is available here.

Posted by Marcia Oddi on Wednesday, February 01, 2012
Posted to Environment

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Mitchall & Stark Construction Company, Inc. v. Strand Associates, Inc., as successor In interest to Sieco, Inc. (NFP)

NFP criminal opinions today (1):

Cleverson J.R. Punturi v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 01, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Both Supreme Court and COA rule against Princeton attorney Wallace this week

Updating this ILB entry from yesterday, Janice Barniak reports today in the Princeton Daily Clarion in a story that begins:

PRINCETON -Indiana's Supreme Court Disciplinary Commission has recommended Princeton attorney William R. Wallace III be suspended from practicing law in Indiana, and the Indiana Court of Appeals has decided a pending felony voyeurism charge against him should stand.

The Court of Appeals of Indiana Tuesday upheld Gibson Superior Court Judge Earl Penrod's ruling that the voyeurism charge, one of several filed against Wallace in a 2010 case, should not be dismissed.

In October 2011, Wallace agreed in a plea deal that he would plead guilty to the voyeurism charge if the higher court upheld the local court's ruling.

In that deal, Wallace was sentenced to 90 days of home detention and 458 days of probation for felony convictions of obstruction of justice and possession of child porn. Lesser charges of false informing and patronizing a prostitute were dismissed.

Under terms of the plea agreement, the sentence for the voyeurism charge will run concurrently with the other two convictions.

Wallace's appeal to the higher court was pending when he agreed to the plea deal. His appeal argued that the voyeurism should be dismissed.

He was indicted in the supper of 2010 by a grand jury on charges of false informing, obstruction of justice, patronizing a prostitute and possession of child pornography. In November 2010, Special Prosecutor Jonathan Parkhurst filed the charge of voyeurism.

Prosecutor Rob Krieg asked that a special prosecutor investigate the case because Wallace was a candidate for Gibson County Prosecutor at the time a former client made a complaint in the spring of 2010.

Posted by Marcia Oddi on Wednesday, February 01, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on 7th Circuit ruling in Amber Parker case

Updating this ILB entry from yesterday on the 7th Circuit's decision to allow plaintiff's suit to proceed in the case of Amber Parker v. Franklin Comm. Schools, the Indianapolis Star has a story today by reporter Nat Newell, headed "U.S. appeals court overturns dismissal of gender-discrimination suit on Indiana high school sports." Some quotes:

The Title IX lawsuit over the scheduling of high school boys and girls basketball games will go forward after the U.S. Court of Appeals for the Seventh Circuit overturned a lower court's dismissal of the case. * * *

Tom Wheeler, the attorney for the schools, said the ruling was not unanticipated and no decision had been made on whether to appeal it. If there is no appeal, Sniderman estimated it would take 12 to 18 months for the case to reach trial.

"With respect to Franklin (County), we know there's a disparity," Wheeler said. "We said to the court, while there is a disparity, it does not impact their athletic opportunities. We're (also) resolving (the disparity)."

A summary judgment from the Indianapolis-based U.S. District Court for the Southern District of Indiana dismissed the case in October, saying the damage done to girls basketball players wasn't substantial enough.

According to the appeals court ruling, Franklin County's boys team played nearly 95 percent of its games in "primetime" -- an evening game held prior to a day without school -- while the girls played less than 53 percent of theirs. Franklin County athletic director Beth Foster testified that she attempted to increase the number of girls games played in primetime but the other athletic directors refused.

Posted by Marcia Oddi on Wednesday, February 01, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Lawmakers should seriously consider whether they should put themselves in the position of settling disputes involving a very limited number of Hoosiers by passing statewide laws that affect everyone"

So opined the Fort Wayne Journal Gazette today in an editorial headed "Lawmakers as arbiters." Some quotes:

The Indiana General Assembly is advancing two bills directly related to local issues that demonstrate the power of the legislature to correct bad policies but also put lawmakers in the awkward and questionable position of helping specific people win disputes.

In both cases, lawmakers are headed toward establishing sound public policy, but it is regrettable those policies could not have been corrected without new state laws. * * *

Both Purdue and Indiana universities have archaic, discriminatory policies that require top administrators to retire after they turn 65. The policies seem arbitrary: The universities’ boards of trustees can grant exceptions based on discretionary, subjective factors, and the trustees themselves are not subject to their own 65-and-out rules. * * *

Striking the mandatory retirement policy is surely the right step, and it’s unfortunate the boards of Purdue and IU don’t take the action themselves.

The other bill requires lawmakers to reverse their own bad judgment.

Two local Chevrolet dealerships are involved in a legal dispute because one, Kelley Chevrolet, plans to move, apparently violating a state law that requires dealerships of the same model to be at least six miles apart. Such a decision should be left solely to the auto manufacturer and its dealers, and lawmakers should never have established this six-mile law to begin with.

As originally proposed, the bill would have gone so far to help one dealership as to make the law retroactive, making Kelley the automatic winner of the lawsuit that DeHaven’s Summit City Chevrolet filed. Now, the bill would take effect July 1, though if the lawsuit is not resolved by then – a very real possibility – the result would be the same, with the law favoring Kelley.

Should public universities require top administrators to step down solely because of their age? Of course not.

Should state law determine where auto dealerships can and cannot locate? No.

But lawmakers should also seriously consider whether they should put themselves in the position of settling disputes involving a very limited number of Hoosiers by passing statewide laws that affect everyone.

ILB: I recall amendments to the budget bill specifying the location of some curb-cuts on a street in South Bend ...

See also this ILB entry from Jan. 27th.

Posted by Marcia Oddi on Wednesday, February 01, 2012
Posted to Indiana Law

Ind. Gov't. - "Prosecutors in Charlie White's trial say documents prove voter fraud"

Here in the Indianapolis Star this morning is reporter Carrie Ritchie's wrap-up of the first day of Secretary of State Charlie White's voter fraud trial.

For constant updates throughout each day of the trial, anticipated to last two weeks, follow Ms. Ritchie's twitter feed @CarrieRitchie.

Posted by Marcia Oddi on Wednesday, February 01, 2012
Posted to Indiana Government

Ind. Law - "Senate passes bill on teaching creationism: If measure becomes law, opponents wonder if suit versus state will follow"

Long, comprehensive story today in the Indianapolis Star, reported by Scott Eliiot (and contributors Alex Campbell and Tim Evans). The bill, SB 89. A few quotes:

Senate Bill 89, authored by Sen. Dennis Kruse, R-Auburn, would allow schools to teach religion-based views on the origin of creation -- be they Muslim, Jewish, Scientology or Christian -- alongside the theory of evolution in public school science classes.

Schools, however, would not be required to do so, and an Indiana Department of Education spokesman said the state would not develop any such curriculum or guidelines for teaching creationism.

The Senate passed the bill 28-22. It would still need to be passed by the House and signed by Gov. Mitch Daniels before it became law.

"I believe in creation," Kruse said, "and I believe it deserves to be taught in our public schools."

Sen. Karen Tallian, D-Portage, had a decidedly different take: "I can't believe we are even considering this."

The question now -- if it becomes law -- is whether schools will consider it. And if they do, will that violate the Constitution?

Here is my favorite part:
Creation science was specifically ruled unconstitutional by the U.S. Supreme Court in a 1987 case in which the court voided a Louisiana law that required creation science to be taught alongside evolution in science class. The court found the law violated the establishment clause of the U.S. Constitution because it was designed to advance religion.

Kruse said he is aware of the precedent but isn't sure it would survive today.

"This is a different Supreme Court," he said. "This Supreme Court could rule differently." * * *

Technically, a school district could teach creationism now -- and some do.

"As far as I know," said Mount Vernon Community School Corporation Superintendent William Riggs, "we've always been allowed to do that."

Riggs said Mount Vernon High School's biology class already teaches creationism alongside evolution. "We've been doing this for years."

Riggs said the school teaches them as "two theories of the origins of life" and said that in literature classes students often learn about the Bible and the Quran. "The idea is to get kids to think."

But districts such as Mount Vernon potentially open themselves up to costly lawsuits. Kruse's bill gives those districts and any other that choose to teach creationism some legal cover -- and likely would draw the state into their defense. * * *

Kruse called evolution a "Johnny come lately" idea that emerged well after many religious views about the origins of life were formed.

"Many people still believe in creation," he said. "Our schools are teaching what many people believe is false."

Kruse thinks his bill is fair to everyone because it was amended to allow the creation theories of several religions, not just Christianity. But the inclusion of other religions was the reason Sen. Brent Steele, R-Bedford, said he voted against the measure.

Nine other Republicans voted against the bill, and one Democrat, Lindel Hume of Princeton, voted for it.

Posted by Marcia Oddi on Wednesday, February 01, 2012
Posted to Indiana Law

Ind. Law - "Trafficking in hyperbole"

The editorial section of the Fort Wayne Journal Gazette today has this item on newly enacted SEA 4, human trafficking:

From the back-patting and high-fives, it would seem the Indiana General Assembly rescued the state from the grasp of moral depravity by rushing a human-trafficking law to Gov. Mitch Daniels’ desk before Sunday’s Super Bowl.

So, were the thousands of football fans descending on Indianapolis likely to seek out young women and children for sexual gratification? Was Indiana’s law strengthened just in the nick of time?

Not so much, it turns out.

In spite of claims that the sporting event draws a criminal element eager to meet demand for illegal sexual activity, a review of last year’s Super Bowl in Dallas found a grand total of one – yes, one – arrest. “This is a far cry from the ‘thousands’ of victims that the hysterical Texas Attorney General’s office … assumed would be illegally trafficked in the Dallas area for the Super Bowl,” observed a blogger after the 2011 event.

Turns out that the hype over increased human trafficking in Texas last year was almost identical to the hype behind the Indiana legislation this year. Similar cries also are being raised over the Summer Olympics in London.

This is not to say a stronger human trafficking law isn’t a good thing. But shouldn’t some lawmaker have asked why the Super Bowl, which will draw about 68,000 fans, poses a more serious trafficking threat than the Indianapolis 500, which draws more than 250,000 fans every May?

Posted by Marcia Oddi on Wednesday, February 01, 2012
Posted to Indiana Law

Ind. Law - "How To Stay Out of Jail on Super Bowl Sunday"

The entertaining story by Aaron Kase at Lawyers.com features advice from Indianapolis attorney Kathleen Sweeney, "a veteran defender of sporting event-related mishaps, [who] lays out some of the ways you might find yourself in pigskin-derived legal trouble."

Posted by Marcia Oddi on Wednesday, February 01, 2012
Posted to Indiana Law