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Tuesday, March 13, 2012

Ind. Courts - "Work of Appellate Clinic Students Pays Off for Clients"

From the IUPUI News Center:

Two Robert H. McKinney School of Law students enrolled in the law school’s Appellate Clinic recently won reversals for their clients.

Emily Shrock (3L) represented a 13-year-old girl found delinquent for burglary, theft, and carrying a handgun without a license after her parent's home was burglarized. She argued the case before a three-judge panel of the Indiana Court of Appeals in December. In a published opinion, the Court found insufficient evidence to support the handgun offense and found the trial court erred in admitting hearsay evidence.

Jarryd Anglin (3L) represented a man who was convicted of possession of marijuana. The Court of Appeals reversed his conviction, also in a published opinion, concluding "the evidence shows only that Yanez was at a flea market and was talking loudly to his female companion," which was an insufficient basis for an investigatory stop.

Since its founding in 2008, the Appellate Clinic has enabled 20 students to work on more than 20 cases. Professor Joel Schumm, ’98 who founded the clinic says, “We have obtained relief for clients in well over half the cases, which is a testament to the enormous commitment of time and creative energy students bring to each case.”

The clinic provides second and third-year students the opportunity to represent indigent defendants on appeal through the Indiana Court of Appeals and Supreme Court. Each student is assigned their own case while collaborating as a class and with appellate lawyers in the community in various stages of the brief-writing and oral argument process.

Posted by Marcia Oddi on Tuesday, March 13, 2012
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides two CHINS cases this afternoon

In In the Matter of K.D. & K.S.; S.S. v. The Indiana Dept. of Child Services and Child Advocates, Inc., a 13-page, 5-0 opinion, Justice David writes:

We have granted transfer in this case where a party to a CHINS matter requested a fact-finding hearing and was instead given a contested dispositional hearing. We write to clarify any ambiguity that exists regarding the differences between a CHINS adjudication and the procedural due process safeguards that are in place for parties to a CHINS disposition. We hold that a parent who requests a contested fact-finding hearing has a due process right to that hearing. * * *

While a CHINS determination establishes the status of a child and a separate analysis as to each parent is not automatically required, as In re N.E. established, there are fact-sensitive situations where due process guarantees require separate fact findings for each parent. The due process of the parties and the status of the child are mutually exclusive. Whenever a trial court is confronted with one parent wishing to make an admission that the child is in need of services and the other parent wishing to deny the same, the trial court shall conduct a fact-finding hearing as to the entire matter. We remand to the trial court to provide Stepfather with a fact-finding hearing.

In In the Matter of T.N.; G.N. v. The Indiana Dept. of Child Services and Child Advocates, Inc., a 4-page, 5-0 opinion, Justice David writes:
In this case, a party to a CHINS matter requested a fact-finding hearing and was instead given a contested dispositional hearing. This Court has also decided a companion case today, In re K.D., which will be discussed below. Our opinion seeks to clarify the procedural due process safeguards required in CHINS adjudications. We hold that a parent who requests a contested fact-finding hearing has a due process right to that hearing. * * *

Whenever a trial court is confronted with one parent wishing to admit and one parent wishing to deny the child is in need of services, the trial court shall conduct a fact-finding hear-ing, assuring due process to all parties. It is ultimately in the child’s best interest that the parents are given due process at all stages of the proceeding. In this instance, the contested dispositional hearing did not replace the due process rights father lost when he was not allowed a contested fact-finding hearing. We remand this case to the trial court for a fact-finding hearing as to father.

Posted by Marcia Oddi on Tuesday, March 13, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides two Indiana cases today, one a reversal

In McComas v. Brickley (SD Ind., Barker), a 12-page opinion, Circuit Judge Bauer writes:

The plaintiff-appellee, Shannon McComas, was arrested by the defendant-appellant, Edward Brickley, for murder and for assisting a criminal in the state of Indiana. State prosecutors formally charged McComas only with assisting a criminal and false informing. These charges were later dropped. McComas then brought suit in federal court against Brickley for false arrest under 42 U.S.C. § 1983. Brickley moved for summary judgment in the district court, arguing that he had probable cause for the arrest and that he is protected by qualified immunity. The court denied his motion. Finding error in the court’s qualified immunity determination, we reverse.
In Smith v. Lafayette Bank (ND Ind., DeGuilio). a 5-page opinion, Richard L. Young, Chief Judge of the USDC, SD Ind., sitting by designation, concludes:
Here, Smith did not file her charge of discrimination until November 2006, five months after she was terminated. Accordingly, Smith is unable to show that the Bank administrators who terminated her were aware that she ever filed a charge of discrimination. “This dooms [her] claim not only under the direct method, but also under the indirect method.” Id. at 1122 (citing Mattson v. Caterpillar, Inc., 359 F.3d 885, 888 (7th Cir. 2004); Tomanovich, 457 F.3d at 668-69). For these reasons, Smith’s retaliation claim under the ADEA must fail as a matter of law. Therefore, we affirm the district court’s grant of summary judgment against Smith.

Posted by Marcia Oddi on Tuesday, March 13, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In The Guardianship of Harold G. Gardner, Scott A. Gardner, Guardian v. Carl Prochno , a 9-page opinion, Judge Vaidik writes:

The guardianship of Harold D. Gardner and Harold’s guardian, Scott A. Gardner, appeal the trial court’s grant of summary judgment in favor of Carl Prochno. The designated evidence in this case shows that Prochno did not receive written notice to terminate his year-to-year tenancy to 240 acres of farm ground owned by Harold within three months of March 1, the generally accepted start date for farm leases. Because we conclude that Indiana Code chapter 32-31-1 requires written notice to terminate a year-to-year tenancy “not less than three (3) months before the expiration of the year,” we affirm the trial court’s grant of summary judgment in favor of Prochno. * * *

Our conclusion that written notice is required to terminate a year-to-year tenancy is consistent with the statute’s underlying policy and goals. That is, the purpose of a notice to terminate a tenancy is to reasonably inform the tenant that the tenancy will not be renewed for an additional year and will terminate at the end of its current term. See Pilotte v. Brummett, 165 Ind. App. 403, 332 N.E.2d 834, 840 (1975). Because Prochno did not receive timely written notice to terminate his year-to-year tenancy for 240 of the 480 acres, the trial court did not err in granting summary judgment in favor of Prochno.

In Kenneth Akers v. State of Indiana , a 10-page opinion, Chief Judge Robb writes:
Following a jury trial, Kenneth Akers was convicted of battery, resisting law enforcement, and possession of paraphernalia, all Class A misdemeanors. He was sentenced to one year in prison for each conviction, with the sentences for battery and resisting law enforcement to be served concurrently to each other and consecutive to his possession of paraphernalia sentence. Akers raises one issue for our review: whether Indiana Code section 35-50-1-2 violates the Equal Protection Clause of the United States Constitution or Article 1, Section 23 of the Indiana Constitution because the statute limits the imposition of consecutive sentences when someone is convicted of at least one felony, but no such statute exists limiting the imposition of consecutive sentences for those convicted of only misdemeanors. The State raises two issues for our review: whether Akers has waived the challenge he now brings, and whether Akers' three convictions were part of an episode of criminal conduct as Indiana Code section 35-50-1-2 requires. Concluding Akers' convictions did not arise out of an episode of criminal conduct and he therefore lacks standing to challenge the constitutionality of Indiana Code section 35-50-1-2, we affirm Akers' convictions. * * *

Akers' convictions were not part of a single episode of criminal conduct. Thus, Akers does not have standing to challenge Indiana Code section 35-50-1-2 because the statute would not apply to him even if it applied generally to defendants convicted of only misdemeanors. We therefore affirm Akers' convictions.

NFP civil opinions today (2):

Ralph Winfrey v. NLMP, Inc. and Witham Health Services (NFP)

Douglas R. Denmure, Personal Rep. of the Estate of Eugene D. Trester, Deceased v. Michael S. Gridley, Personal Rep. of the Estate of Alice F. Grindley, Deceased (NFP)

NFP criminal opinions today (9):

Alfred Taylor v. State of Indiana (NFP)

Matthew G. Fearnow v. State of Indiana (NFP)

Matthew Jordan v. State of Indiana (NFP)

Rondell Walker v. State of Indiana (NFP)

Joshua Love v. State of Indiana (NFP)

Elwin Hart v. State of Indiana (NFP)

Aaron Lee v. State of Indiana (NFP)

T.W. v. State of Indiana (NFP)

Michael Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 13, 2012
Posted to Ind. App.Ct. Decisions

Ind.Law - More on: 2013 US News law school rankings out

For rankings geeks ("Pull out those old rankings and spreadsheets"), see this post from the Law Librarian Blog.

And Prof. David Bernstein writes in The Volokh Conspiracy: "For the vast majority of prospective law students, the most important criteria to narrow down law school choice should be where you want to practice, followed by how much debt you are willing to take on."

Posted by Marcia Oddi on Tuesday, March 13, 2012
Posted to Indiana Law

Ind.Law - 2013 US News law school rankings out

Prof. Schumm sends the link and writes:

IU McKinney is tied for 89th, a drop from last year. Legal writing program is tied for 9th. Healthcare law is tied for 11th.
Other Indiana schools: Notre Dame is #22, Indiana University--Bloomington (Maurer) is tied for #26. Valparaiso Law is not in the first tier.

[Update] I've corrected to 2013, not 2012. Here, from last year's entry:

From 2012: IU Mauer is #23, tied with Notre Dame; IU Indianapolis is #79.

From 2011: Notre Dame is ranked 22, IU-Mauer is 27, IU-Indy is 86

Posted by Marcia Oddi on Tuesday, March 13, 2012
Posted to Indiana Law

Ind. Law - South Bend Adams wins again in mock trial for high schools

Here is the story by Joseph Dits in the South Bend Tribune. Some quotes:

SOUTH BEND — Mock trial teams from Adams High School once again scooped up several awards in the state tournament Saturday — including the Indiana state champs.

The seven members of Whüp Swag, as the championship team is called, are all seniors who’ve been in mock trials for four years. * * *

Seven high schools across the state sent schools to the competition in Indianapolis. Trinity School at Greenlawn, St. Joseph High School and Penn High School were the other local ones.

Each team had to argue for and against a fictitious court case involving a chartered schooner that sinks on Lake Michigan, killing a man and leading to murder allegations eight years later when illegal drugs are discovered, Weaver said.

Posted by Marcia Oddi on Tuesday, March 13, 2012
Posted to Indiana Law

nd. Decisions - More on: Supreme Court issues public reprimand to Carl J. Brizzi

Updating this ILB entry from yesterday, Jon Murray has this story today in the Indianapolis Star, headed "Ex-Marion County Prosecutor Carl Brizzi reprimanded by Indiana Supreme Court: State Supreme Court reprimands ex-prosecutor in 2006 mass slaying case." Some quotes:

A reprimand by the Indiana Supreme Court over his colorful comments about the Hamilton Avenue slayings case caught former Marion County Prosecutor Carl Brizzi by surprise.

But in slamming Brizzi on Monday, the court put other prosecutors on notice with a warning: Watch your words.

The unanimous disciplinary opinion, which disregarded a hearing officer's recommendation last year to dismiss the charges, narrowed the range of information prosecutors can cite in public comments.

A legal expert predicted the 13-page decision would lead prosecutors across the state to "shy away from characterizing the evidence in any way."

"This is a very significant opinion, which is likely to lead to more restrained press releases and public statements from prosecutors," said Joel Schumm, a professor at the Indiana University Robert H. McKinney School of Law.

That may be just what the court's five justices intended.

Indiana's rules of conduct for attorneys require prosecutors to steer clear of comments to the media that might stack the deck against defendants. But until recently, the court has offered little guidance on exactly what information they can cite.

For future statements by Indiana prosecutors, the Brizzi decision laid out a strict interpretation of a current rule that allows their public comments to cite any information contained in a public record.

The decision says that means only public government records, including probable cause affidavits. The court reiterated that each statement must include an assertion that a charge is merely an accusation, and that the defendant is presumed innocent until proved guilty.

What its interpretation leaves out: information from media reports and a prosecutor's assessment of a case's strength.

Posted by Marcia Oddi on Tuesday, March 13, 2012
Posted to Ind. Sup.Ct. Decisions

Stage Collapse - More on "State Fair concert tragedy: Whose call was it?"

Updating this ILB entry from March 11th, the Star's Star Watch blog has made available in full: (1)the 4-page IOSHA interview with State Police Capt. Brad Weaver; (2) the 16-page interview with Cindy Hoye, executive director of the Indiana State Fair Commission; and (3)the 70-pages of Sugarland interviews and related docs.

Posted by Marcia Oddi on Tuesday, March 13, 2012
Posted to Stage Collapse

Ind. Gov't. - "Keep Light Shining on DCS"

A portion of the South Bend Tribune story quoted here yesterday reads:

Although DCS records are generally confidential, state law provides for a release of documents in cases where a fatality has occurred.

The Tribune subsequently received 21 pages of reports showing previous DCS involvement with the family, specifically the department’s determination that the Sturgis children were "well-cared for" — six months before Tramelle was found beaten to death in the family’s home at 1130 W. Washington St.

But DCS did not provide one key piece of information: records of phone calls from the child abuse hotline in Indianapolis, which are now recorded and stored at the centralized call center.

In January, DCS Director James Payne told The Tribune during an interview that every call made to the centralized child abuse hotline is recorded and "kept forever."

The Tribune then filed another records request, asking for audio files and transcripts of calls made to the hotline about the Sturgis family.

But the department denied the request, arguing the records were confidential.

Soon after, an amendment was abruptly inserted into pending legislation — Senate Bill 286 — that specifically exempts an "audio recording of a telephone call to the child abuse hotline" from disclosure.

The Tribune, represented by local attorney Jerry Lutkus, filed a motion for the records, arguing the files were in fact releasable under the same law that permitted release of the original 21 pages of documents.

TITLE 31 of the Indiana Code, FAMILY LAW AND JUVENILE LAW, includes IC 31-33, Chapter 18. Disclosure of Reports; Confidentiality Requirements. IC 31-33-18 currently consists of 4 sections.

The bill highlighted in the SBT story quoted above, and in today's IndyStar editorial, SEA 286 [see p. 35 of Enrolled Act], would add an additional Sec. 5:

SECTION 40. IC 31-33-18-5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE UPON PASSAGE]: Sec. 5. (a) An audio recording of a telephone call to the child abuse hotline is confidential and may be released only upon court order.
(b) An audio recording of a report of child abuse or neglect that is the subject of a complaint made to a prosecuting attorney under IC 31-33-22-3 shall be released without a court order to the prosecuting attorney upon written request of the prosecuting attorney.
If I understand this correctly, this provision will apply even in the case of a fatality.

Oddly, the Star editorial is not yet available online, but it is titled "Keep Light Shining on DCS."

Posted by Marcia Oddi on Tuesday, March 13, 2012
Posted to Indiana Government