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Thursday, March 15, 2012

Ind.Law - More on: Check out new blog, the Indiana Property Tax Reporter

Updating this ILB entry from Feb. 2, 2012, the new blog is now an even more "must read," as it has evolved from being "The Indiana Property Tax Reporter" to becoming simply "The Indiana Tax Reporter," covering a much broader subject area.

This entry from yesterday, headed "Attorney General [today] finds that funds in the racinos' 15% 'set aside' are subject to the slot machine wagering tax," also quotes from a Delaware Bankruptcy Court ruling, In re Indianapolis Downs, LLC., Case No. 11-11046(BLS) (Del. B.R. Ct.) dated October 26, 2011, that found to the contrary, that "the Set-Aside Funds cannot be subject to that tax."

Posted by Marcia Oddi on Thursday, March 15, 2012
Posted to Indiana Government | Indiana Law

Ind. Courts - Supreme Court answers certified question from SD Ind.

In Michael R. Kole, Joseph L. Weingarten, and Glenn J. Brown, et al. v. Scott Faultless, Daniel Henke, Eileen Pritchard, Stuart Easley, et al., a 9-page, 5-0 opinion re a Certified Question from the United States District Court for the Southern District of Indiana, The Honorable Tanya Walton Pratt, Chief Justice Shepard writes:

In 2006, the Indiana General Assembly liberalized the framework within which local governments may reorganize themselves. It is clear that this new framework substantially reduces the barriers to rearranging local units. This case asks to what extent earlier statutes continue to limit the resulting forms that reorganizing local governments may take.

In particular, Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana has asked us the following question, certified under Indiana Appellate Rule 64(B):

Whether a political unit may reorganize into a city under Ind. Code art. 36-1.5 (the “Reorganization Act”) in a manner that eliminates voting rights recognized under Ind. Code § 36-4-5-2 and Ind. Code § 36-4-6-3(i), including reorganization as a city with (1) a council elected entirely at large; and (2) a mayor appointed by that council.
We have accepted this question and now hold that Article 1.5 of Title 36 does allow a political subdivision to do so.

Posted by Marcia Oddi on Thursday, March 15, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Judge declares mistrial in Isom capital case"

Updating this ILB entry from Aug. 7, 2011, headed "Lake Judge Stefaniak said he would not tolerate lawyers using race as an excuse to exclude whites from a jury," Susan Brown writes today in the NWI Times:

CROWN POINT | Having run out of potential jurors for the Kevin Isom murder trial, Lake Criminal Court Judge Thomas Stefaniak Jr. on Wednesday approved a defense motion for a mistrial.

Further proceedings on the capital case were set for March 29 and April 20. * * *

Jury selection was in its 15th day when Stefaniak agreed to the mistrial. The jury count has been stalled at nine for several days. * * *

From the bench, Stefaniak said the process complied with the state's guidelines for jury selection in a death penalty case, adding that even more jurors had been recruited than in the county's last death penalty case.

He commended members of the 270-member jury pool for their participation and sacrifice.

Stefaniak told Isom he had the right to proceed with a nine-person jury, but Isom declined. * * *

All of the information regarding the proceedings had been barred except for the jury interviews in open court. Interviews were conducted on a one-by-one basis without other jurors being present.

Selection for the jury pool had undergone two separate rounds, involving hundreds of county residents. Delays in proceedings prompted Stefaniak to dismiss the first pool and begin again, with final jury selection beginning Feb. 27.

Progress began at a slow pace and never picked up speed despite the input of many long hours six days a week by the court and members of the jury pool.

Posted by Marcia Oddi on Thursday, March 15, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Law - Grandparents visitation rights, revisited

Reporter Tim Evans writes in the StarWatch blog today about a meeting he attended yesterday "in a small town about 100 miles from Indianapolis ... [in] a basement room at the local Elks lodge." A sample:

Seated around a long table in the basement were about a dozen broken-hearted grandparents. Their dreams of idyllic relationships with beloved grandchildren had been snuffed by the ravages of drugs, alcohol and domestic violence. Their sense of justice and faith in government has been eroded by court decisions that make no sense to them, by laws that severely limit grandparents’ rights, and by a child protection system they are convinced is letting down their defenseless grandchildren. * * *

The horrors they detailed were amazing. Domestic violence spanning generations. Child rape. Neglect and abuse perpetrated by parents more interested in getting high than caring for their kids. Courts they believe give too little sway to the concerns of grandparents who, in many cases, have essentially raised the children. A child protection system they feel too often discounts their concerns. Children who have turned on their own parents, using grandchildren as pawns.

ILB: The General Assembly looked at the difficult issue of grandparent visitation in 2010. Here are some posts, with links to others:This year, a case on grandparents' rights came before the SCOTUS:

Posted by Marcia Oddi on Thursday, March 15, 2012
Posted to Indiana Law

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

Updating this March 13th ILB entry, which reported that IU LAW - Mauer had fallen 3 spots since last year, and IU LAW - McKinney had fallen 10 spots, see this story today from the Chicago Tribune, reported by Ameet Sachdevm headed "University of Illinois Law School's ranking plunges in wake of admissions scandal" It begins:

CHICAGO - An admissions scandal at the University of Illinois Law School cost the well-regarded program in an influential ranking.

The law school fell 12 spots to No. 35 in the latest U.S. News & World Report rankings published this week, which are a measure of a school's reputation. U. of. I. suffered the biggest drop from last year's rankings of any school in the top 50.

U. of I.'s plunge reflects the damage done by publishing fraudulent admission data. The university admitted in September that the grades and test scores of incoming classes had been inflated for several years.

ILB: Hmmm ...

Posted by Marcia Oddi on Thursday, March 15, 2012
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Ayanna Wright and American Federation of State, County, and Municipal Employees, Council 62, Local 4009, AFL-CIO v. City of Gary, Indiana, a 28-page, 2-1 opinion, Sr. Judge Barteau writes:

Following an arbitration award in favor of Appellants Ayanna Wright and the American Federation of State, County, and Municipal Employees, Council 62, Local 4009, AFL-CIO (“AFSCME Local 4009” or, collectively with Wright, “the Union”), Appellee City of Gary, Indiana (“the City”), petitioned the trial court to vacate the award. The Union counterclaimed for enforcement of the award. Both parties moved for summary judgment. After a hearing, the trial court granted the City’s motion for summary judgment and denied the Union’s motion for summary judgment, vacating the arbitrator’s award. Concluding that the arbitrator did not exceed his powers by issuing the award to the Union, we reverse and remand. * * *

BAILEY, J., concurs.
BRADFORD, J., dissents with separate opinion. [that begins, at p. 25 of 28] I conclude that I cannot concur with the approach taken by the majority. I cannot agree with either the conclusion that we may not reach the legality of the CBA or the conclusion that the CBA’s conflict with Gary Ordinance 5882 should be resolved in favor of enforcing the CBA. Consequently, I respectfully dissent.

In Irmina Gradus-Pizlo, M.D., and Select Specialty Hospital Indianapolis, Inc. v. Donald Acton, an 11-page opinion, the issue is "Whether the trial court erred in its conclusion that genuine issues of material fact remain whether Acton properly filed his Proposed Complaint in accordance with the applicable statute of limitations under the Medical Malpractice Act." Judge Riley writes:
[W]ith an alleged act of malpractice occurring on March 12, 2006, the occurrence-based statute of limitations would have expired on Wednesday, March 12, 2008. With Acton’s discovery or trigger date placed on March 29, 2006, Acton had sufficient information that would have led a reasonably diligent person to the discovery
of malpractice during the remaining 1 year, 11 months, and 2 weeks of the two-year statute of limitations period. By filing his Proposed Complaint on April 1, 2008, we conclude that Acton’s cause is barred by the statute of limitations. * * *

[T]he continuing wrong ceased to exist on March 29, 2006 and the statute of limitations commenced to run. By filing his cause of action on April 1, 2008, Acton’s cause was time-barred by the statute of limitations. Therefore, we reverse the trial court’s denial of summary judgment and grant summary judgment to Dr. Gradus-Pizlo. * * *

Based on the foregoing, we that find that the trial court improperly denied summary judgment to Dr. Gradus-Pizlo and Selection Specialty Hospitals. We reverse the trial court’s denial and grant summary judgment to Dr. Gradus-Pizlo and Select Specialty Hospitals.

In Brad A. Altevogt, et al. v. Dennis L. Brand, et al., a 15-page opinion, Judge Mathias concludes:
The trial court did not err in rejecting the Plaintiffs’ claim of title of the disputed land by public dedication because the Plat did not dedicate the Indian Trail to the public, but instead indicated that the Indian Trail was for the use of the lot owners and their guests. The trial court also properly concluded that the Plaintiffs had not established all of the elements of adverse possession. Lastly, we do not read the trial court’s order as concluding that all lot owners were co-tenants of the Indian Trail. Therefore, the trial court properly granted summary judgment in favor of the Defendant back-lot owners.Affirmed.
Canon Harper v. State of Indiana - "The trial court did not abuse its discretion in admitting evidence from the purse or motel room, the evidence is sufficient to support Harper's convictions, and Final Instruction 7 does not constitute fundamental error. We therefore affirm Harper's convictions."

NFP civil opinions today (2):

T.H. b/n/f Sonja Lynetter (Walls) Fitzgerald v. Troy Hutchison (NFP)

KSM, LLC v. Lighthouse Storage, LLC, Lawyers Title Ins. Corp., Inc., and Kevin and Stephen Corp. (NFP)

NFP criminal opinions today (5):

Susan R. May v. State of Indiana (NFP)

Charles R. Smith v. State of Indiana (NFP)

Ernest Wireman v. State of Indiana (NFP)

Odonis D. Parker v. State of Indiana (NFP)

Shawn McDonald v. State of Indiana (NFP)

John Mitchem v. State of Indiana (NFP)

Tyson Keplinger v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 15, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court, in direct transfer from Marion Circuit Court, reverses trial court decision ruling Charlie White ineligible to assume office

In Charlie White; Thomas E. Wheeler, II, Gordon Durnil, and Bernard L. Pylitt, as Members of Ind. Recount Comm. v. Indiana Democratic Party, through its Chairman, Daniel J. Parker (White v. Democratic Party), a 20-page opinion, Chief Justice Shepard writes:

This case comes before us only after deliberative actions taken by the executive branch, the Indiana Recount Commission, the General Assembly, the court system, and—most
significantly—almost two million Indiana voters who cast their ballots for Secretary of State in November 2010. The Indiana Democratic Party sought to have the winner in the election, Republican Charlie White, declared ineligible to assume office because he had not been registered to vote at the address at which he resided on July 15, 2010, the deadline for certifying candidates for state office. The Indiana Recount Commission dismissed this petition and later denied it, but the Marion Circuit Court reversed.

The appeal before us today does not decide any questions flowing from White's subsequent criminal convictions, but rather whether the Democratic Party's petition was a basis for barring his taking office after winning the election. We hold it was not. * * *

Here, the Indiana Democratic Party filed a post-election challenge pursuant to Section 3-12-11-3(b)(4), alleging that White violated Section 3-8-1-1(b) in that he was not "registered to vote in the election district [he sought] to represent," because on July 15, 2010, he was registered to vote at the Broad Leaf address, not the Overview condo.

Of course, the Democratic Party could not have brought this claim in the post-election period after the May 2010 primary election because when that time limit expired, White still had until July 15th to comply with the requirements of Section 3-8-1-1. What remains, then, is whether the claim was still valid under Section 3-12-11-2 when brought following the general election, or if it must have been brought earlier under Section 3-8-8-1. * * *

Our conclusion is that the Code places a burden on political campaigns to investigate and vet their opposition before the pre-election time limitations expire, but that is better than the alternative: that a challenger might ignore a known (or knowable) disqualification challenge before the election, wait to see who won at the polls, and then seek to set aside the results of the democratic process. Such a result is inconsistent with free elections and respect for voters' expressed preferences.

Here, the allegations of White‘s registration impropriety arose before the election and were made public by private citizens, the media, and by the Osili campaign and by the Democratic Party. It is likely that the average voter was aware that there were concerns about White‘s voter registration history at the time of the election, but we will not, on the basis of the present petition, judicially disenfranchise voters who went to the polls aware of what were at that moment only allegations. The fact that criminal charges were filed after the election and resulted in convictions (appeals still pending) does not alter that conclusion.

We therefore reverse the decision of the trial court and affirm the Commission‘s dismissal.

Sullivan, Rucker, and David, JJ., concur.
Dickson, J., concurs in result with separate opinion. [that concludes] Unlike the requirement that a voter present an ID when voting to verify that they satisfy the voting qualifications prescribed in our Constitution, the statutory requirement that a candidate for Secretary of State be registered to vote requires an eligibility qualification absent from the Constitution.

For this reason, I conclude that the legislature's attempt to impose an additional eligibility qualification—requiring a candidate for this position to be "registered to vote," Ind. Code § 3-8-1-1(b)—is violative of the Indiana Constitution and thus cannot serve as a basis upon which to contest a candidate's eligibility for election to the office of Secretary of State. The election contest petition was thus properly dismissed.

Posted by Marcia Oddi on Thursday, March 15, 2012
Posted to Ind. Sup.Ct. Decisions

Not law - Okay, where is the ILB?

The ILB has been at the doctor's office this morning. The Supreme Court issued the Charlie White ruling.

Tomorrow morning the ILB's golden retriever has to go to the $$$ dog hospital for ACL surgery. Look for the Governor to announce the new Supreme Court justice ....

Some have projected Daniels will name another male justice, but "balance" it with a female secretary of state appointee.

Posted by Marcia Oddi on Thursday, March 15, 2012
Posted to General News