Tuesday, March 20, 2012
Ind. Courts - "Indiana wraps up its case in IBM lawsuit"
The state has finished presenting evidence and witnesses in a trial for dueling lawsuits over its canceled welfare-modernization contract with IBM.
Attorneys representing Indiana's Family and Social Services Administration took three weeks to present their case and called 67 witnesses, including former FSSA secretary Anne Murphy and Earl Goode, Gov. Mitch Daniels' chief of staff. Their final witness testified this afternoon in Marion Superior Court.
On Wednesday, IBM will begin calling its witnesses, which could include Mitch Roob, Murphy's predecessor.
The case could last three more weeks, and it's uncertain when Marion Superior Judge David Dreyer will issue a ruling.
Ind. Gov't. - Still more on: BMV announces that it is suspending the Indiana Youth Group from its Special Group Recognition License Plate Program [Updated]
There’s more fallout this evening from the flap over a specialty license plate for the Indiana Youth Group. An employee at the BMV has been fired.[Updated at 7:17 PM] As it turns out, Mary Beth Schneider of the Star posted a story this afternoon on the firing. Here is a quote:
Graig Lubsen was a spokesman for the BMV who last week told a reporter that someone from the Senate had contacted the BMV about cancelling the youth group license plate. He told 24 Hour News 8 that he was fired the next day.
The communications director for the Bureau of Motor Vehicles no longer works there. While others said Graig Lubsen was terminated because of a comment he gave to The Indianapolis Star, the BMV said today that Lubsen “resigned” last Thursday.
Lubsen declined comment. * * *
[Senate President Pro Tempore David Long, R-Fort Wayne] was asked by reporters on March 8 — the day before the legislature adjourned -- if there was pressure on the BMV to cancel the contract. Long responded that senators believed the Indiana Youth Group had violated a clause in their contract which prohibits auctioning or remarketing the plates.
Asked for comment, Lubsen told The Star that someone from the Senate had contacted the BMV about the youth group’s contract that morning but that no decision had been made on whether to void it. Lubsen said the contract barred groups from auctioning or selling the plates. But he said the BMV has allowed groups to give out low-numbered plates as thank-you gifts to donors.
On March 9, 20 Republican senators signed and sent a letter to the BMV singling out the Indiana Youth Group and urging that their contract be terminated. A week later, the BMV rescinded the youth group’s plate, as well as plates for the 4H Foundation and the Greenways Foundation.
And on Thursday, Lubsen was no longer employed by the BMV.
Ind. Decisions - Supreme Court answers question in federal “rails-to-trails” litigation
The Court doesn’t get into this, but I think the upshot is that a trail can’t be created along the rail line simply by negotiating with the rail line or its successor; rather, to create a public trail in this location, new deals or condemnations have to be made as to the 128 landowners along the 21 mile stretch.CJ Shepard dissented.
Ind. Law - SEA 1, the right to defend against unlawful entry [Updated]
What will Governor Daniels do about SEA 1?
I wrote the following earlier today, but was delayed in posting because of a slew of Supreme Court opinions.
My guess is he will let it become law without his signature. He has never done that before.Just now the Governor's office sent out the following:
The Indiana Constitution:Art. 4, Section 14. (a) Every bill which shall have passed the General Assembly shall be presented to the Governor. The Governor shall have seven days after the day of presentment to act upon such bill as follows: * * * (3) He may refuse to sign or veto such bill in which event it shall become a law without his signature on the eighth day after presentment to the Governor.Presentment of SEA 1 was on the 14th.
The 8th day by my count would be the 22nd.
Governor Daniels signed six bills into law today, including HEA 1376 (automatic taxpayer refund, full-day kindergarten funding) and SEA 293 (phase-out of inheritance tax). The final bill watch update will be issued Wednesday morning.Thursday is March 22nd ...
Okay, now look at the Bill Watch list. THE ONLY BILL left without action is SEA 1. If the Governor does not sign or veto SEA 1 before March 22nd, if I have counted right, it will become law without the Governor's signature on March 22nd. My bet is he will announce that on Wednesday, the 21st.
[More] I say "if I counted right" because according to the Governor's own bill table, TODAY (3/20) is the last day for action on SEA 1, meaning the bill will become law without the Governor's signature if he does not act by midnight tonight.
Ind. Decisions - 7th Circuit decides one Indiana case today
In Estate of Nicholas D. Rice v. Correctional Medicial Services (ND Ind., Lozano), an 84-page opinion, Circuit Judge Rovner writes:
Nicholas D. Rice died in the Elkhart County Jail in December 2004, nearly fifteen months after he was booked at the jail pending trial on a charge of attempted bank robbery. Rice was known to suffer from schizophrenia, and shortly before his death a judge had found him incompetent to stand trial. Although he was seen by mental health professionals while he was being detained, Rice frequently refused to take his prescribed medications, cooperate with medical personnel at the jail, eat his meals, or bathe himself. He was briefly hospitalized at psychiatric and other medical facilities on several occasions during the period of his confinement, and at the time of his death he was awaiting placement at a state psychiatric facility pursuant to the judge’s finding of incompetence. Rice died as a result of psychogenic polydipsia (excessive water drinking), which is a disorder known to manifest in a minority of persons with schizophrenia. Following Rice’s death, his parents, representing his estate (the “Estate”), filed suit in federal court pursuant to 42 U.S.C. § 1983, alleging among other things that jail officials and medical personnel had deprived Rice of due process by exhibiting deliberate indifference to his declining mental and physical condition. The district court entered summary judgment against the Estate on its section 1983 claims, finding in part that correctional and medical personnel had not consciously disregarded Rice’s medical needs and that the ultimate cause of his death was not reasonably foreseeable to them. Estate of Rice ex rel. Rice v. Correctional Med. Servs., No. 06 C 697, Opinion & Order, 2009 WL 1748059 (N.D. Ind. June 17, 2009) (Miller, J.). The Estate then filed a second federal suit, invoking the court’s diversity jurisdiction, in which it reasserted the state wrongful death claims that the judge in the first suit had dismissed without prejudice after disposing of the federal claims. The judge in the second suit dismissed that case on the basis of collateral estoppel, reasoning that his colleague’s finding as to the foreseeability of the cause of Rice’s death precluded recovery on any of the state claims. Estate of Rice ex rel. Rice v. Correctional Med. Servs., No. 09 C 319, Order (N.D. Ind. May 17, 2010) (Lozano, J.) (unpublished). The Estate appeals both judgments. On review of the record, we conclude that a material dispute of fact precludes summary judgment on one of the Estate’s section 1983 claims: that his conditions of confinement were inhumane. We also conclude that the district court erred in dismissing his state claims. We therefore affirm in part and reverse in part.
Ind. Decisions - Supreme Court issues five more opinions today
In LaPorte Community School Corporation v. Maria Rosales, an 11-page, 4-1 opinion, Justice Dickson writes:
Concluding that one of the jury instructions given by the trial court could have misled the jury about a key issue regarding liability in this child wrongful death case, we reverse and remand for a new trial on the affected issue. * * *In Harold J. Klinker v. First Merchants Bank, N.A., a 10-page, 5-0 opinion, Justice Sullivan writes:
Shepard, C.J., and Rucker and David, JJ., concur.
Sullivan, J., dissents with separate opinion. [that concludes]Because the Court fails to follow our long-standing rule that instructions are to be read as a whole – a rule that the trial court here conveyed to the jury not once but twice – and because there are a number of reasons to conclude that any ambiguity in Instruction 22 did not mislead the jury, I respectfully dissent.
The trial court granted summary judgment to the plaintiff and awarded it treble damages and attorney's fees under the Indiana Crime Victims' Compensation Act, finding that the undisputed facts established that the defendant had committed criminal fraud. We reverse the judgment on the fraud claims because there are genuine issues of material fact as to whether the defendant acted with the requisite criminal intent.In Jerrell D. White v. State of Indiana, a 12-page, 4-1 opinion, Justice David writes:
The defendant challenges the trial court's decision to allow the State's tardy habitual-offender filing. The defendant also asserts that the evidence was insufficient to support a finding that he is a habitual offender. We hold, under the circumstances of this case, that the defendant did not preserve the issue of whether the trial court properly allowed the habitual-offender filing. We also hold that the authenticated and certified evidence was sufficient to uphold the jury's determination that the defendant had two unrelated adult felony convictions. * * *In Henry L. Howard, et al. v. United States, a 7-page, 4-1 opinion, Justice Dickson writes:
The issue of whether the trial court improperly allowed the tardy habitual-offender filing is unavailable on appeal because White failed to move for a continuance at the appropriate time. Furthermore, there was sufficient evidence to support the jury's finding that White was convicted of two unrelated adult felony convictions. Accordingly, we find the habitual-offender enhancement is valid.
Because we summarily affirm the Court of Appeals on the remaining issues, we affirm the trial court in part and reverse the trial court in part. We remand with instructions to vacate the receiving-stolen-property conviction and the sentence imposed thereon.
Shepard, C.J., and Dickson and Rucker, JJ., concur.
Sullivan, J., dissents believing the opinion of the Court of Appeals to be correct.
The United States Court of Federal Claims has certified for our resolution the following question:In Hannah Lakes v. Grange Mutual Casualty Company, a 14-page, 5-0 opinion, Justice Sullivan writes:
Under Indiana law, are railbanking and interim trail use pursuant to 16 U.S.C. § 1274(d) uses that are within the scope of the easements acquired by the railroad companies either by prescription, condemnation, or the deed at issue; and if either is not within the scope of the easements originally acquired, is railbanking with interim tr[ai]l use a shifting public use?Pursuant to Indiana Appellate Rule 64, we accepted the question and now answer both parts in the negative. Under Indiana law, railbanking and interim trail use pursuant to 16 U.S.C. § 1274(d) are not uses within the scope of the easements, and railbanking with interim trail use does not constitute a permissible shifting public use. * * *
We hold that, under Indiana law, railbanking and interim trail use pursuant to the federal Trails Act are not within the scope of railroad easements and that railbanking and interim trail use do not constitute a permissible shifting public use.
Sullivan, Rucker, and David, JJ., concur.
Shepard, C.J., dissents, concluding that the contemplated railbanking and interim trail uses do fall within the scope of the easements presented.
Several family members were injured in a car accident and divided the benefits paid by the tortfeasor's insurer. One family member – Hannah Lakes – also sought to recover under the underinsured motorist endorsement of an insurance policy that applied to all the family members involved in the accident. We reaffirm our decision in Corr v. American Family Insurance, 767 N.E.2d 535 (Ind. 2002), and hold that the tortfeasor's vehicle was underinsured because the amount actually paid to Hannah Lakes was less than the per-person limit of liability of the under-insurance endorsement.
Ind. Decisions - Longed for improvement to Indiana Courts decisions page
The Courts site appears to have pitched the very annoying and unavoidable large pull-down menu which displayed itself whenever you tried to move your pointer across the page. Bravo!
If only Google would do the same with its so-called "improvement" to the gmail and other sites.
Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)
For publication opinions today (3):
In Auto-Owners Insurance Company v. Cathy Benko and Gerald Ewing, as Executors of the Estate of Laverna Ewing, Deceased, a 10-page opinion, Judge Baker writes:
In this case, a woman was injured in a vehicular accident and filed a claim for bodily injury against the man who had struck her. She settled for the policy limits of his insurance policy, but it was insufficient to cover her injuries, so she filed an underinsured motorist claim with her own insurance company, who denied the claim stating that she had not complied with a provision in the policy requiring that she bring a claim against them within two years of the accident. We conclude that the plain language of the provision would lead an ordinary policyholder to believe that they were required to bring a bodily injury claim against the alleged tortfeasor within the applicable statute of limitations, which occurred in this case. Additionally, if the insurance company intended a different interpretation, it should have stated so in plain English so that their policyholders understand what is necessary to protect their interests and collect their benefits under the policy.In Luke Keys Carson v. State of Indiana , a 26-page opinion, Judge Crone writes:
Appellant-defendant Auto-Owners Insurance Company (Auto-Owners) appeals the trial court’s grant of summary judgment in favor of appellees-plaintiffs, Cathy Benko and Gerald Ewing as Executors of the Estate of Laverna Ewing, (collectively, “the Appellees”). More particularly, Auto-Owners contends that the trial court erred by denying its motion to strike the Appellees’ untimely designated evidence that they had filed in support of their motion and by finding that Auto-Owners’s underinsured motorist coverage contractual limitation provision (the Provision) is unenforceable because it is vague and ambiguous. Concluding that the trial court did not err by denying Auto-Owners’s motion to strike or by granting the Appellees’ motion for summary judgment, we affirm.
Luke Keys Carson entered a woman's trailer without permission and left. Later that day, he returned and cut her hand with a knife. He also fought with another man and poked him in the abdomen with the knife. The State charged Carson with two counts of attempted murder, two counts of battery by means of a deadly weapon, burglary, and resisting law enforcement. Carson filed a notice of insanity defense. Carson was found incompetent to stand trial and was diagnosed with paranoid schizophrenia. When he was restored to competency, a bench trial was held. Two experts found that Carson was mentally ill and, as a result of that mental illness, he was unable to appreciate the wrongfulness of his conduct at the time of the crimes. The trial court found Carson not guilty of the two counts of attempted murder. As to the remaining counts, the trial court found, based on Carson's demeanor during and after the crimes, that Carson was able to appreciate the wrongfulness of his conduct at the time of the crimes, thereby rejecting Carson's insanity defense. The trial court found him guilty but mentally ill of two counts of battery by means of a deadly weapon, burglary, and resisting law enforcement.Curtis A. Bethea v. State of Indiana is a 35-page, 2-1, three opinion decision, with the court denying post-conviction relief.
On appeal, Carson argues that the trial court erred in rejecting his insanity defense because the evidence is without conflict and leads only to the conclusion that he was unable to appreciate the wrongfulness of his conduct at the time of the crimes. In the alternative, he argues that the evidence is insufficient to support his burglary conviction.
We conclude that the evidence of Carson's demeanor during and after the crime supports the trial court's determination that he was able to appreciate the wrongfulness of actions at the time of the crimes and therefore was guilty but mentally ill. We also find that the evidence is sufficient to support his burglary conviction. We therefore affirm his convictions.
NFP civil opinions today (5):
NFP criminal opinions today (7):
Ind. Decisions - Supreme Court issues one, so far, today
In Rebecca D. Kays v. State of Indiana, a 6-page, 5-0 opinion, the issue is "the propriety of a trial court’s restitution order against a criminal defendant whose income is comprised entirely of social security disability benefits." Justice Rucker continues:
The trial court further ordered as a term of probation that Kays pay restitution to Wolfe in the amount of $1,496.15 – which Kays agreed was the amount of Wolfe’s hospital bill related to the injury. Kays objected, however, to the amount of restitution on the grounds she lacked the ability to pay it. Kays testified at the sentencing hearing that her sole source of income was $674.00 per month in social security disability payments, and the ordered restitution “is well beyond what [Kays] could possibly ever pay.” The trial court nonetheless ordered restitution of $1,496.15 and noted Kays could “stretch that out over a period of time,” but left the details “to be dealt with between [Kays] and [the department of] probation over this probationary period.” * * *
We now reverse the trial court’s decision and remand with instructions. * * *
Our decisions envision at least a minimal inquiry into the defendant’s ability to pay restitution, which is absent here. On this issue we agree with the Court of Appeals and remand this cause to the trial court for a determination of Kays’ ability to pay restitution and a determination of her manner of payment.
We disagree, however, with our colleagues’ [COA] conclusion that “restitution may not be based on social security income” and therefore the trial court must “ignore Kays’ social security income” in determining her ability to pay. * * *
we find nothing in 42 U.S.C. § 407(a) to prohibit a trial court from considering a defendant’s social security income when determining the “amount the person can or will be able to pay” in restitution pursuant to Indiana Code section 35-38-2-2.3(a)(5).
Conclusion. We remand this cause to the trial court for further proceedings consistent with this opinion.
Ind. Courts - "Dual role of Marion County small claims court judges raises flags"
A story in the Indianapolis Star yesterday, reported by Carrie Ritchie, is subheaded "Judges who also work as attorneys lead to concerns about impartiality." Some quotes:
[Allowing] small-claims court judges [to] work as attorneys in one another's courts could give the appearance of impropriety.ILB: A related issue that goes beyond Marion County involves the law practices of part-time judges. City judges often practice part-time. See this 1974 Res Gestae article headed "Ethics committee adopts opinions relating to city judges, their law partners or associates."
While it's unclear whether rules governing judges' conduct prohibit it, having judges with dual roles can cause several problems, in particular a perception that they will have an unfair advantage in court, Kitley and others in the legal profession say.
"It's a bad idea for these guys to be appearing before their brethren," said Charles Geyh, a professor of law at Indiana University-Bloomington's Maurer School of Law and an expert on judicial ethics and conduct.
But questions over how it looks haven't stopped some small-claims court judges in Marion County from doing it. An Indianapolis Star review of court records found dozens of cases in which small-claims judges have represented clients in one another's courts.
Complaints about such practices are among many issues in Marion County small-claims court being studied by a task force appointed by the Indiana Supreme Court. The Indiana Commission on Judicial Qualifications has never issued a formal opinion on small-claims court judges practicing in one another's courts. * * *
[Franklin Twp. Judge] John Kitley said he asked the Judicial Qualifications Commission if he could practice in small-claims courts. The commission's response made him think it was a "gray area," and he decided it would be best not to. "I think it appears inappropriate," Kitley said, "and therefore I never did it."
Kitley has since quit practicing law and now considers himself a full-time judge.
Whether small-claims court judges are violating professional rules of conduct by practicing as attorneys in one another's courts depends on whether their courts are considered to be separate or part of the same court.
Marion County has nine small-claims judges and courts, one for each of the county's nine townships. All of the judges are elected, and most are considered part time.
No other Indiana county has that setup.
Part-time judges are allowed to practice law, according to the Indiana Code of Judicial Conduct, but there are restrictions on where they can practice. They can't appear as lawyers in the courts in which they are a judge.
That is where the interpretation of the code gets tricky. The small-claims courts all have the same role -- to handle civil cases involving $6,000 or less -- and follow the same rules. The judges meet regularly to discuss various issues, including how to make sure court procedures are uniform.
That lends credibility to the argument that they are all one body and the judges shouldn't appear as attorneys in one another's courts, Geyh said.
"It's not as though these judges are divorced from each other," the IU law professor said.
Courts - More on the implications of U.S. v. Jones - the GPS case
A long entry March 18th in the Volokh Conspiracy, by Orin Kerr, begins:
The various opinions in United States v. Jones (aka the GPS case) raise tons of fascinating new questions for Fourth Amendment law. I explore some of those issues in a forthcoming article, The Mosaic Theory of the Fourth Amendment, which will appear in the Michigan Law Review and which I hope to post an early draft of soon. In the meantime, here are three cases just from the last week or so on the implications of Jones.
Law - "Ted Olson calls work on California’s Prop. 8 case ‘highlight of my life’"
Here is how a story by Jeffrey MacMillan in the business section of the March 18th Washington Post begins:
For renowned Washington attorney Ted Olson, mounting the legal battle against Proposition 8, the California initiative banning same-sex marriage, doesn’t just mark a high point in his 45-year career — during which he has argued nearly 60 times before the Supreme Court, and cemented George W. Bush’s victory in the 2000 presidential election.
“This has been the highlight of my life,” Olson said last week at the annual networking dinner hosted by Gibson Dunn & Crutcher for Georgetown Law’s LGBT student group, Outlaw. “This is the most important thing we’ve done in our lives. It’s not just become a legal challenge, but it’s about the hearts and minds of a country changing.”
Ind. Gov't. - "Drugs, neglect linked: Custody cases on rise"
This interesting story by Jesse Rininger in the March 18th Evansville Courier & Press begins:
Meth-addicted parents coupled with a crackdown by the Indiana Department of Child Services has caused a vast removal of children from their parents' homes.
According to a report released this year by the Indiana Youth Institute, termination of parental rights case filings from 2005 to 2010 doubled in the Indiana. In Vanderburgh County, it increased by 25 percent. Youth rights advocates cite an increased drug problem as the culprit behind the increased numbers.
Ind. Decisions - Yet more on: Supreme Court issues public reprimand to Carl J. Brizzi
Indiana prosecutors have much discretion, and that has traditionally included their public statements. A recent state Supreme Court ruling will probably change that.
Many county prosecutors traditionally err on the side of disclosing very little when discussing pending cases. Those willing to give up more are often more politically inclined.
While current and former Allen County prosecutors Karen Richards and Stephen Sims (now a judge) earned reputations for saying little about pending cases, two former Marion County prosecutors – Carl Brizzi and Steve Goldsmith – gave surprisingly detailed comments about some high-profile cases.
Earlier this month, the court handed Brizzi a public reprimand for “making public statements as a prosecutor that had a substantial likelihood of materially prejudicing an adjudicative proceeding and a substantial likelihood of heightening public condemnation of the criminal defendants.”
Brizzi violated professional rules of conduct limiting such statements, but the court acknowledged “at the time he made the statements at issue, there was little precedent in Indiana or elsewhere defining the limits” of those rules.
Now that the court has defined them, expect prosecutors to give even less information than before.
Law - "The Law of Public Breastfeeding"
Joanna L. Grossman, a Justia columnist, is a professor of law at Hofstra University. Here are some quotes from the introduction to her lengthy column/article today:
For many women, the logistics of nursing after returning to work can be quite challenging. As I explained in a recent column, a federal district court in Texas upheld the right of an employer to fire a woman because she planned to continue breastfeeding after returning to work. The court ruled that this was neither sex discrimination, nor pregnancy discrimination. Federal law is quite weak when it comes to protection against lactation discrimination, and even weaker when it comes to requiring employers to accommodate nursing mothers who need space and/or regularly scheduled breaks in order to pump breast milk. * * *
In this column, I’ll discuss * * * the patchwork of state laws that are designed to protect a woman’s right to breastfeed in public and the grassroots movement to protect the right to breastfeed in public.
Vacancy on Supreme Court 2012 - "Chief Justice Randall Shepard gets a warm send-off: Officials, friends, associates honor 27-year state Supreme Court veteran, who retires Friday"
Mary Beth Schneider has this story in today's Indianapolis Star. Some quotes:
Some words came up over and over Monday as retiring Chief Justice Randall T. Shepard was honored for his 27 years on the Indiana Supreme Court: Respect, legacy, excellence.[More] See also the editorial in today's Star, headed "Justice's retirement is our loss."
One word, though, no one used. No one wanted to say "goodbye." * * *
Gov. Mitch Daniels, who will name a new justice to replace Shepard as early as this week, said it is as hard to think of the court without Shepard as it is to think of the Indianapolis Colts without Peyton Manning.
Indiana was lucky, Daniels said, that Shepard lost election in 1979 to be mayor of Evansville. That loss turned into the state's gain, the governor said, when Shepard instead began a career on the bench.
"I betcha every one in this room believes Indiana got the better end of that bargain," Daniels said.
Stage Collapse - "Sugarland's role questioned in Indiana concert tragedy: Depositions being sought from band following accident that killed seven at State Fair"
Some quotes from a long story in today's Indianapolis Star by Carrie Ritchie:
How much control did country duo Sugarland have over a concert last summer in which stage rigging collapsed, killing seven and injuring nearly 60?
Attorneys for the company that owned the stage are asking a Marion Superior Court judge to order the band to provide an answer next week.
The company, Mid-America Sound Corp., the band and others involved in planning the Aug. 13 concert at the Indiana State Fair have been named as defendants in several lawsuits over the deadly incident.
Everyone but Sugarland and its ownership company has agreed to give depositions, according to court documents Mid-America filed Friday. Depositions for Sugarland members Jennifer Nettles and Kristian Bush, as well as their ownership company, Lucky Star Inc., have been scheduled for next week, but attorneys for the band have indicated that their clients won't be available and haven't suggested alternative dates.
Marion Superior Court Judge Theodore Sosin has scheduled a hearing Friday to determine whether to grant Mid-America's request for a court order that would force Nettles, Bush and a representative from Lucky Star to give depositions next week.