Monday, March 05, 2012
Vacancy on Supreme Court 2012 - J. Dickson to serve as head of JNC and CJQ by designation
Order dated March 5, 2011 by Acting Chief Justice Shepard:
I hereby DESIGNATE Justice Brent E. Dickson to serve as chairman of the Indiana Judicial Nominating Commission and Indiana Commission on Judicial Qualifications. Unless rescinded by order of this Court, this designation shall remain in effect until Justice Dickson becomes Acting Chief Justice of Indiana pursuant to article 7, section 3 of the Indiana Constitution, at which time Justice Dickson, as Acting Chief Justice, will automatically assume chairmanship of the Indiana Judicial Nominating Commnission and Indiana Commnission on Judicial Qualifications pursuant to article 7, section 9 of the Indiana Constitution.
Ind. Courts - Supreme Court Job Opportunity - Director of Trial Court Management
Just received this info:
Hello Indiana Judges and Lawyers,
The Indiana Supreme Court, Division of State Court Administration, is seeking applicants for an attorney manager position as the Director of Trial Court Management. You may know the right candidate or be interested in this opportunity.
The Director in this position will oversee the collection and publication of data about the work and finances of all Indiana courts; help train judicial officers and court staff about administrative issues; provide guidance to courts, clerks and staff on court record creation and maintenance; and develop strategies and best practices to improve the operations of the trial courts. A minimum of 10 years of practice in Indiana and 5 years management experience is required. Knowledge of the Indiana judicial system, data analysis, trial court operations and an interest in court administration is recommended. Applicants must be members in good standing of the Indiana Bar and have excellent written and oral communication skills. The salary will range from $65,686 to $75,989, depending on experience. State benefits apply.
Please send resume and letter of introduction no later than March 26, 2012, to Brenda F. Rodeheffer, Director of Office & Employment Law, by email to brenda.rodeheffer@courts.IN.gov.
The Indiana Supreme Court is an Equal Employment Opportunity Employer.
Courts - "How is the Roberts Court unusual? A law professor counts the ways"
Fascinating article by Robert Barnes in the Washington Post.
The story is based on this paper by Benjamin H. Barton, University of Tennessee College of Law, titled "An Empirical Study of Supreme Court Justice Pre-Appointment Experience."
Ind. Law - More on "Change in conviction or criminal charge causes quarrel: Word change in bill could undo new act’s intent"
Updating this entry from earlier this afternoon, thanks to the reader who just sent this note:
That expungement bill is HB 1033, the amendment that changed the language from a "shall" provision to a "may" provision was 1033-1.
Law - "How To Cite A Tweet In An Academic Paper"
Really. See here.
Courts - "Second Circuit: NYS version of Rule on Attorney ‘Specialists’ Is Unconstitutional"
Joe Palazzolo has the story here in the WSJ Law Blog.
Ind. Law - "Change in conviction or criminal charge causes quarrel: Word change in bill could undo new act’s intent"
Maureen Hayden of CNHI reported yesterday in the Kokomo Tribune on the "expungement" (restricted access) law. Some quotes:
INDIANAPOLIS — A year ago, a group of conservative and liberal legislators joined forces to pass a law aimed at making it easier for a person with a long-ago, low-level charge or conviction to get a job.Here is a list of earlier ILB entries on the expungement/restricted access law.
This year, they may have to fight to keep the law intact.
They fear language, tagged on to a related bill, that changes a single word — from “shall” to “may” — will undo the intent of the state’s new criminal records shield law. [ILB - anyone know the bill #?]
On Tuesday, the state Senate voted to support that amendment, which gives judges more discretion in deciding who has the legal right to shield a past criminal record from a future employer.
Supporters of the change say that discretion is needed to protect the public.
Opponents say judges, who are elected to office, may not have the political courage to grant any shield requests for fear their decisions will come back to haunt them.
The fight is over the criminal records shield law passed late in the 2011 session, with support from conservative and liberals who dubbed it the “second chance” bill. * * *
The current law allows people who’ve been granted the records shield to not have to disclose that past arrest or conviction to an employer.
That doesn’t sit well with state Sen. Richard Bray, a Republican from Martinsville who is also a former prosecutor.
“Frankly, I’m more interested in protecting the public than I am in protecting criminals,” said Bray. He argues that employers have the right to know about a job applicant’s past.
He said giving judges the discretion to deny a records shield petition — even if all the conditions in the current law are met — will likely result in fewer petitions granted.
Critics of his amendment have told him that judges will be fearful of making the wrong call: shielding the record of someone with an old class D theft charge, for example, who later is accused of stealing from an employer.
So in his amendment, he added that judges who deny a records shield petition must explain their reason in writing.
“Judges should have the discretion to deny the petition,” Bray said. “We’re paying them $120,000 a year. I should hope they’d use good judgment.”
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 Feb. 24, 2012 list.]
Here is the Clerk's transfer list for the week ending Friday, March 2, 2012. It is three pages (and 34 cases) long.
Five transfers were granted last week (details to follow):
- Miller Brewing Company v. Indiana Department of State Revenue
- Abby Allen and Walter Moore v. Clarian Health Partners, Inc.
- Timothy W. Plank v. Community Hospitals of Indiana, Inc., State of Indiana
- National Wine & Spirits, Inc., National Wine & Spirits Corporation, NWS, Inc., NWS Michigan, Inc., and NWS, LLC v. Ernst & Young LLP
- J.M. v. Review Board of the Indiana Dept. of Workforce Development and T.C.
By order dated May 13, 2011, the Court granted transfer of jurisdiction in this criminal appeal. After further review, including oral argument, the Court has determined that transfer of jurisdiction was improvidently granted. Accordingly, the order granting transfer of jurisdiction is VACATED. The transfer petition filed by Appellee is DENIED. The Court of Appeals opinion, State v. Velasquez, 944 N.E.2d 34 (Ind. Ct. App. 2011), is no longer vacated and is REINSTATED, and this appeal is at an end. See Ind. Appellate Rule 58(B).
In B.P. Products North America Inc., et al. v. Indiana Office of Utility Consumer Counselor, and Northern Ind. Pub. Service Co. -- "dismissed" per:
PARTIES' VERIFIED JOINT NOTICE OF IURC APPROVAL OF SETTLEMENT AND MOTION TO DISMISS PETITION TO TRANSFER
Ind. Law - "Casinos have secure spot in smoking ban carve-out "
Good story today by Maureen Hayden of CNHI Statehouse Bureau. A sample:
But the exemption for the casinos and racinos are in both the House and Senate versions of the Indiana smoking ban bill headed to a legislative conference committee to work out other major differences.
“Without it, there wouldn't have been enough votes to pass the bill,” said Sen. Jean Leising of the casino/racino exemption.
Leising, a Republican from Oldenburg, succeeded in tacking on several amendments before the bill passed out of the Senate on Wednesday on a 29-21 vote.
One of them exempts charity gaming events, including church bingos, from the ban. She wants them to have the same smoking pass that casinos and racinos would get.
“If you exempt one, but don't exempt the other, you're setting up a barrier to fair competition,” Leising said.
Authors of the smoking ban bill say they held their noses when they added the casino/racino exemption to what they hoped would have been a more comprehensive ban to cover all workplaces.
Bill co-author Rep. Eric Turner, a Republican from Cicero, is skeptical of the gaming industry's claims about how much damage a smoking ban would do if applied to them.
“They say 20 percent of their customers are smokers,” Turner said, referring to a number that comes from the American Gaming Association. “But what about the number of people who don't go to casinos because of the smoke? Wouldn't those people start going if the casinos were smoke-free?”
Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)
For publication opinions today (1):
In Brandy L. Walczak v. Labor Works-Fort Wayne, LLC, d/b/a Labor Works, an 11-page opinion, Judge Friedlander writes:
Brandy L. Walczak, on behalf of herself and all others similarly situated, appeals the trial court’s grant of summary judgment in favor of Labor Works – Fort Wayne, LLC (Labor Works) in her action for unpaid wages. Walczak frames the issue in this dispute as one of standing, i.e., whether she has standing to sue for improper payroll deductions and unpaid wages under Ind. Code Ann. § 22-2-5-1 et seq. (West, Westlaw through end of 2011 1st Regular Sess.) (the Wage Payment Statute) and I.C. § 22-2-6-1 et seq. (West, Westlaw through end of 2011 1st Regular Sess.) (the Wage Deduction Statute). We address the following related but different issue: Did the trial court have subject-matter jurisdiction over Walczak’s lawsuit? We reverse and remand with instructions. * * *NFP civil opinions today (2):
We believe that * * * this is precisely the type of fact-sensitive inquiry that should be resolved in the first instance by the administrative agency.
In so holding, we are mindful of the value of requiring the completion of administrative proceedings before resorting to judicial review, viz., (1) avoiding premature litigation; (2) the compilation of an adequate record for judicial review; and (3) utilization of agency expertise in a given field, see, e.g., Indiana Dep’t of Envtl. Mgmt. v. Twin Eagle LLC, 798 N.E.2d at 845 (“Twin Eagle may be correct that the particular waters at issue are not subject to regulation, but the proper forum to address this fact sensitive issue is through the administrative process. We therefore defer to the administrative process to determine whether potentially dispositive factual circumstances exist here”), and (4) affording agencies the opportunity and autonomy to correct their own errors.
We conclude that the question of whether Walczak was involuntarily separated from the payroll within the meaning of the Wage Claims Statute is a question of fact that should have been submitted to the DOL. Therefore, the trial court lacked subject-matter jurisdiction over Walczak’s claims until the DOL had made a determination on that question. See Hollis v. Defender Sec. Co., 941 N.E.2d 536 and Reel v. Clarian Health Partners, Inc., 917 N.E.2d 714. Accordingly, we reverse the grant of summary judgment in favor of Labor Works and remand this cause to the trial court with instructions to dismiss Walczak’s complaint.
NFP criminal opinions today (2):
Law - "Teams Could Be Held Liable for Injuries Traced to Bounties"
That is the headline to this story by Judy Battista in the March 4th NY Times. The story begins:
The New Orleans Saints will almost certainly receive fines, suspensions and/or the loss of draft picks because of the bounty system administered by the former defensive coordinator Gregg Williams that encouraged Saints players to injure opponents — and for the apparent cover-up by team officials that followed. But that could be just the beginning of their punishment.In the WSJ, Matthew Futterman has a story headed: "NFL Plays Defense on Suits: 'Bounty' Crackdown Comes as League Faces Legal Actions for Other Injuries."
According to two sports law scholars, the team, Williams and individual players could be held liable in court if an opponent can prove that a member of the Saints injured him on a play that is outside the norm for football and that the Saints player acted with reckless disregard for the opponent’s safety.
“As a general rule, those who participate in sports assume the inherent risk of injury therein,” said Matt Mitten, the director of the National Sports Law Institute at Marquette University Law School. “You break your arm? Suffer concussion? Broken leg? But what most courts have held is you do not assume the risk of an intentional or recklessly caused injury. Contact is an inherent element of N.F.L. football; it’s not enough just to contact someone.
“I would see something as a bounty, where you’re intending to injure someone so he’s knocked out of the game, or reckless, the deliberate disregard of a high probability of harm — those are the types of situations where the courts have said: ‘That’s not a risk that people assume. There is potential liability to those who suffer injury.’ ”
In the WSJ blog, The Daily Fix, David Roth asks: "Where Will the NFL Bounty Case Lead?"
Environment - Indiana University named a 2011 Tree Campus USA
That from an IU News press release today that begins:
BLOOMINGTON, Ind. -- The Arbor Day Foundation has named Indiana University Bloomington a Tree Campus USA in honor of its commitment to effective community forestry management. This is the fourth year of recognition for Indiana University.Not mentioned is the remarkable recovery in light of this incident reported last May in an earlier release:
At most recent count, IU Bloomington has lost nearly 300 trees, according to university officials who surveyed the campus in the wake of the storm, and this does not include damage north of the intersection of East Tenth Street and the Bypass and the IU Golf Course.
Particularly affected is Dunn's Woods, the densely wooded area located in the middle of the historic Old Crescent district of campus and bounded by a number of academic buildings, including the IU Maurer School of Law. Several large mature trees are down and most paths are blocked by tree limbs. Access to the woods has been blocked due to the threat of falling limbs. * * *
IU Vice President for Capital Projects and Facilities Tom Morrison said that it will take months to clean up the damage, trim broken limbs and make walking paths safe, and that it may take years to replace the old growth. "After three big storms in the past 11 months, and a summer of drought last year, we have lost far more trees than we have planted. We will certainly need to reverse this trend," Morrison said.
Ind. Gov't. - "Indiana regulators to consider unsealing additional Duke documents in probe of Edwardsport power plant"
John Russell reports today in a long story in the Indianapolis Star that begins:
What critics call one of the most controversial and cloaked cases ever heard by an Indiana regulatory agency might soon get a little more sunlight.Also today, Russell has a long post on the Star BizBuzz blog that does two things:
On Tuesday, the Indiana Utility Regulatory Commission will consider whether to unseal hundreds of additional documents in the massive investigation into possible wrongdoing at Duke Energy Corp.'s $3.3 billion power plant in Edwardsport.
Depending on its decision, the agency could give a fuller picture of the engineering and construction problems at the plant, as well as the huge cost overruns that could push up monthly bills for hundreds of thousands of Indiana customers.
- Recounts the backstory to the investigative series; and
- Labels and links, with brief descriptors, the major stories in the series, in chronological order.
Courts - "Are Historical Cell-Site Data Protected Under the Fourth Amendment After United States v. Jones?"
See Prof. Orin Kerr's post at The Volokh Conspiracy. Jones was the GPS case recently decided by the SCOTUS.
(Historical cell site location records have been in the Indiana news recently in the Charlie White criminal case.)
Ind. Law - Can a lawyer licensed in Indiana use group coupon or daily deal marketing in compliance with Indiana's Rules of Professional Conduct?
The ILB has received this note from Rochester attorney Ted A. Waggoner:
The ISBA Legal Ethics Committee issued this opinion last week on the question of group coupon usage by lawyers and law firms.
We are about the fifth state to decide on the issue, and the other decisions have gone in several different directions. Catheryne Pulley is the LEC liaison. James Bell chairs the committee.
Environment - "Hazardous waste money to help fund roads"
From the Greencastle Banner-Graphic, this story that begins:
INDIANAPOLIS -- Counties can now use a part of their hazardous waste disposal tax revenue to pay costs associated with the maintenance or repair of county roads following action by the Indiana General Assembly.
District 44 Rep. Jim Baird (R-Greencastle) authored legislation, House Enrolled Act 1060, which authorizes hazardous waste disposal tax revenue to pay costs with the maintenance or repair of county roads. The bill was signed into law on Wednesday.
"This bill deals with counties that have a hazardous waste landfill," Rep. Baird said. "This allows the host county to use a portion of the tipping fees for local road maintenance and repair."
The bill was sponsored in the Senate by Sen. Connie Lawson (R-Danville).
Currently, the money from hazardous waste disposal tax can be used for things such as monitoring wells, conducting testing of contamination and paying associated costs of construction and rehabilitation. This legislation adds county roads as a use of the money, but is limited to only 10 percent of the balance of each year.
"The money from the hazardous waste disposal tax revenue helps pay for hazardous waste training for first responders, the Emergency Operations Centers, and monitoring wells among other concerns that come with having a landfill in the area," Rep. Baird said. "However, counties are searching for any source of funds that can be used for road maintenance and repair. This law will now allow some counties the flexibility and an extra way to maintain county roads."
Ind. Courts - More on: Judge Simon sets hearing on RTW TRO for next Monday, March 5 at 1 pm in federal court in Hammond [Updated]
HAMMOND — A hearing scheduled for Monday afternoon regarding the Operating Engineers Local 150’s temporary restraining order against the state’s Right-to-Work law has been canceled after the local withdrew its motion Friday afternoon.[More] Here is the story from the NWI Times.
Local 150 Attorneys Dale Pierson and Elizabeth LaRose wrote in the withdrawal notice that the TRO be dismissed “without predjudice” because both Attorney General Greg Zoeller’s office and Indiana Department of Labor Commissioner Lori Torres interpreted the document filed as “not applying to or abrogating existing contracts or those in effect on March 14, and only applying to contracts entered into, modified, renewed, or extended after March 14.”
Ind. Decisions - Still more on "Tax forgiveness and equality"
Armour v. Indianapolis, the Indiana Supreme Court sewer tax decision that was argued before the SCOTUS last week (long list of ILB entries here), is the subject of a March 4th editorial in the NY Times, headed "Equal Protection on Sewer Bills," that begins:
Sometimes, what seems to be a case with an obvious, common-sense answer ends up at the Supreme Court. Such is the curious case of the municipal sewer bill and the Constitution. The issue in Armour v. Indianapolis, which the court heard arguments on last week, is whether the city violated the equal protection rights of residents who prepaid their sewer bills and were not given a refund after the city changed its sewer fee policy.
Vacancy on Supreme Court 2012 - Today Indiana has an Acting Chief Justice
As clarified in this March 1, 2012 ILB entry, the name is the same, but the designation is different:
Chief Justice Shepard's term as Chief Justice ends March 4, 2112. His last day on the Court will be Friday, March 23rd. From March 5-23, Chief Justice Shepard will be acting Chief Justice and continue to preside over oral arguments and handle administrative duties. The Constitution calls for the most senior member of the Court to serve as Acting Chief Justice. Shepard is the most senior member of the Court. On March 24th, Justice Dickson will become Acting Chief Justice.
On March 5th, Chief Justice Shepard will designate Justice Brent Dickson as Chair of the Judicial Nominating Commission and Judicial Qualifications Commission. This will allow for a smooth hand-off to those duties.
Vacancy on Supreme Court 2012 - Woman on the Indiana Supreme Court – or not?
Don't miss this ILB entry from Sunday.
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, March 4, 2012:
- Vacancy on Supreme Court 2012 - Woman on the Indiana Supreme Court – or not?
- Ind. Gov't. - Are daily police logs now being made available to the public adequate under public access law?
- Courts - "Washington State Supreme Court is being asked to determine whether jurors should be told that eyewitnesses who identify strangers across racial lines — for example, a white man identifying a black man — are more likely to be mistaken"
- Ind. Gov't. - Elkhart County: "Questions surface about local inspections for dog breeders"
- Ind. Gov't. - What is upcoming in this last week of the General Assembly?
- Ind. Gov't. - Bills that would enforce government transparency are dead
- Ind. Courts - Authoritarian vs. clinically based drug courts
- Courts - "After Scandal, New Rules For Juveniles In Pa. Courts"
- Ind. Gov't. - "Rockport plant tax credit shaping up to be legislative fight"
From Saturday, March 3, 2012:
- No entries on Saturday.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 3/5/12):
- No arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of 3/12/12):
Thursday, March 15th
- 9:00 AM - Indiana-Kentucky Electric Corp., et al. v. Save the Valley, Inc., et al. (49S02-1202-MI-72) - Indiana-Kentucky Electric Corporation (IKEC) filed a petition for judicial review asking the trial court to rule that certain citizens’ groups lacked the authority to obtain administrative review of a permit-renewal decision, but the trial court dismissed the petition. The Court of Appeals affirmed, relying on the law-of-the-case doctrine and noting that an earlier appeal held that these citizens’ group had associational standing to represent their members aggrieved by the permit renewal. Indiana-Kentucky Electric Corporation v. Save The Valley, Inc., 953 N.E.2d 511 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an Aug. 9, 2011 COA opinion dealing with associational standing.
- 9:45 AM - Michael J. Lock v. State of Indiana (35S04-1110-CR-622) - Police stopped Michael Lock while he was operating a Yamaha Zuma at forty-three miles per hour. In the Huntington Circuit Court, Lock was convicted of operating a “motor vehicle” while his driving privileges were suspended. The Court of Appeals reversed on grounds the State failed to prove that the Zuma was a motor vehicle as defined in Indiana Code sections 9-13-2-105 and 109. Lock v. State, 952 N.E.2d 280 Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1, July 26, 2011 COA opinion where the majority wrote: "Lock argues the State did not prove he operated a motor vehicle, because his Zuma is a motorized bicycle, which, pursuant to Ind. Code § 9-13-2-105(d), is exempt from the provisions of the statutes regarding operation of a motor vehicle while privileges are suspended. We agree the State did not prove the Zuma was a motor vehicle; however, neither does the record before us permit us to hold the Zuma is a motorized bicycle. * * * We decline the State's invitation to relieve it of its burden to prove every element of a crime it prosecutes."
This week's oral arguments before the Court of Appeals (week of 3/5/12):
Monday, March 5th
- 1:30 PM - John Morse, M.D., v. Jeffrey Wayne Davis (84A05-1103-CT-140) - John Morse, M.D., appeals the trial court’s judgment in favor of Jeffrey Davis on Davis’ complaint alleging that Dr. Morse committed medical malpractice when he failed to diagnose Davis’ colon cancer. Dr. Morse presents three issues for our review, each of which pertains to whether the trial court abused its discretion when it precluded certain evidence from being admitted at trial. The Scheduled Panel Members are: Chief Judge Robb, Judges Najam and Vaidik. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
Friday, March 9th
- 1:00 PM - Richard Leggs v. State of Indiana (49A02-1105-CR-522) - Richard Leggs was charged with and convicted of eight offenses, all arising out of an incident where he stabbed his wife and prevented her from leaving their apartment. He argues on appeal he should not have been convicted of two counts of criminal confinement because there was only one continuing confinement; multiple counts were improperly enhanced based on the same use of a deadly weapon; one of the charges was flawed because it did not allege he acted with criminal intent; and his sentence should be revised. The Scheduled Panel Members are: Judges May, Mathias and Bradford. [Where: IU/Northwest, 3400 Broadway, Gary, IN]
Monday, March 13th
- 1:00 PM - Carl E. Thomas, III v. State of Indiana (63A05-1108-CR-423) - Carl E. Thomas was convicted of Class A felony rape with deadly force and sentenced to forty years in prison. He appeals that conviction challenging the trial court's admission of testimony from the rape victim regarding Thomas stabbing her hand with a knife more than four years before the rape, the trial court's decision to allow the State to ask preliminary questions of a defense witness during Thomas' direct examination of that witness, and the sufficiency of the State's evidence to prove Thomas committed rape while armed with a deadly weapon or while using or threatening to use deadly force. The Scheduled Panel Members are: Judges Baker, Najam and May. [Where: University of Southern Indiana, Carter Hall, University Center West, 8600 University Blvd., Evansville, Indiana ]
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.