Wednesday, March 21, 2012
Environment - "Supreme Court rules unanimously against EPA in enforcement case"
The Supreme Court handed a decisive loss to U.S. EPA today when it ruled unanimously that property owners facing potential enforcement actions under the Clean Water Act can seek judicial review before being forced to comply.
The justices held that Mike and Chantell Sackett of Priest Lake, Idaho, can challenge an EPA compliance order that claims they are in violation of the statute because they filled in wetlands on their land without obtaining a permit.
The couple began earth-moving work on the lot just yards from scenic Priest Lake in 2007.
EPA has traditionally relied on the compliance orders -- which say those in violation are subject to a fine of up to $37,500 a day -- to encourage landowners to come into compliance in a speedy fashion.
But in the Sacketts' case, the couple objected, saying they don't believe their property is a wetland. However, they had no way to challenge EPA's determination in court based on the way the Clean Water Act had previously been handled by EPA and the courts.
The matter would get into court only if EPA acted on the compliance order and initiated a full-scale enforcement action.
Now, in a boost to property rights advocates keen to tackle what they see as EPA's overzealous interpretation of what constitutes a wetland under the Clean Water Act, people like the Sacketts will -- in some circumstances -- likely be able to challenge the agency's underlying reasoning for issuing a compliance order.
Stage Collapse - "Sugarland won't answer Indiana State Fair stage collapse questions until May"
Carrie Ritchie reports today in the Indianapolis Star:
Sugarland will share what it knows about the stage rigging collapse that killed seven and injured nearly 60 at its Aug. 13 concert at the Indiana State Fair.[More] Here is the AP coverage from Ken Kusmer.
But it will do so on its own time and its own terms, the band's public relations firm said in an email statement today.
Sugarland and others involved in planning the concert have been named as defendants in multiple lawsuits over the collapse. * * *
Sugarland's attorneys have asked for a protective order to prevent the band from having to testify next week * * *
Mid-America wants to know the limits of the band's insurance policy to determine how much the band might be able to contribute toward compensation for victims, as well as the band's take on what happened in the minutes leading up to the stage-rigging collapse, according to the documents.
Ind. Courts - More on: "Indiana wraps up its case in IBM lawsuit"
As reported in this ILB entry from yesterday, quoting the Indianapolis Star, yesterday the State wrapped up its case against IBM, and:
On Wednesday, IBM will begin calling its witnesses, which could include Mitch Roob, Murphy's predecessor.Sounds interesting, but I'm told there was no press there today for the opening of IBM’s case/first witness.
Ind. Decisions - Yet one more Supreme Court decision today
In Loparex, LLC v. MPI Release Technologies, LLC, Gerald Kerber, and Stephen Odders, a 27-page, 5-0 opinion answering a certified question from USDC SD Ind. Judge Magnus-Stinson, Chief Justice Shepard writes:
[ILB: Check back for summary, this is interesting.]
Ind. Decisions - "Lawyer Charged With Cheating Alzheimer's Patient Takes Plea: Stacy H. Sheedy Will Get 8-Year Sentence"
WRTV 6 posted this story this afternoon. It begins:
An Indianapolis lawyer accused of cheating an Alzheimer's patient out of hundreds of thousands of dollars and draining a family trust will plead guilty to theft.
Stacy H. Sheedy, 51, who is also an accountant, will admit to two counts of theft in exchange for an eight-year sentence.
The investigation into Sheedy began last year after reported thefts from a guardianship account that supported an elderly widow with Alzheimer's disease who lived in a nursing home.
Investigators found Sheedy, who took responsibility for the guardianship account in June 2010, made at least 32 unauthorized withdrawals over the next six months totaling $172,000.
Courts - Assistant prosecutor in New Orleans resigns for online postings
Main Justice's Elizabeth Murphy reports: "Sal Perricone, former New Orleans Assistant U.S. Attorney, announced he would be leaving his post on Tuesday amid a scandal ...":
Embattled federal prosecutor Sal Perricone resigned from his post Tuesday, but a Justice Department investigation into his use of online aliases to post inflammatory remarks on a variety of topics -- including pending federal probes -- is far from over.It seems he commented multiple times online under an assumed name, on the Time-Picayune website, about local and national politicians, etc. See the story for details.
Ind. Decisions - Supreme Court issues three more today
You'd think they were clearing off the desk ...
In Marion County Auditor, and McCord Investments, LLC v. Sawmill Creek, LLC a/k/a Saw Creek Investments, LLC, a 13-page, 4-1 opinion, Justice Dickson writes:
This appeal challenges a judgment setting aside a tax deed. The deed had been issued to McCord Investments, LLC, upon the petition of the Marion County Auditor following the one-year redemption period after a tax sale. But, in response to a motion to set aside the tax deed filed on behalf of Sawmill Creek, LLC, the trial court conducted an evidentiary hearing, ultimately setting aside the tax deed on grounds that the Auditor's effort to notify Sawmill Creek of the tax sale was constitutionally deficient for failing to meet the requirements of due process. We granted transfer and now reverse the trial court. * * *In John Witt, HydroTech Corp, and Mark Shere v. Jay Petroleum, Inc., and Jack R. James, an 11-page, 3-2 opinions, Justice Dickson writes:
Sawmill contends that the additional steps taken by the Auditor were inadequate and that the only reasonable step was to post notice on the Property. In this regard, Sawmill argues that because of the misnomer on the documents relating to the Property, there was only one method of providing notice that was reasonable when the mailed notice was returned. Or, in other words, that because the named owner of record did not exist and was thus untraceable, that the Auditor must post notice on the Property. We cannot agree for two reasons.
First, under the unique circumstances of this case, posting notice on the property was not a reasonable or practicable step for the Auditor to take, and in such circumstances due process does not require the government to do more. * * *
Second, the notices for approximately 1,800 properties were returned to the Auditor in 2005 alone. The burden of posting notice on that many properties is significant. In fact, the Auditor testified that it is not done because it is cost prohibitive: "Going to each of those properties, mapping them out, and getting the signage for each of those properties wouldn’t be really possible time wise or financially." Were we to accept Sawmill's contention that notice must be posted on the property when the owner of record cannot be located through any reasonable means, the Auditor would be placed in an untenable position. This we cannot do.
Conclusion. For the foregoing reasons the judgment of the trial court is reversed. Sawmill's motion to set aside the tax deed is denied.
Shepard, C.J., and Sullivan and David, JJ., concur.
Rucker, J., dissents with separate opinion: Due in part to the owner’s inadvertence and lack of attention to detail a four acre lot, for which the owner paid $450,000.00, was sold at a tax sale for $20,000.00. Applying Jones v. Flowers, 547 U.S. 220 (2006) the trial court determined that the Auditor’s tax sale notice was constitutionally deficient. The Court Appeals agreed and affirmed the trial court. I also agree and would likewise affirm. Therefore I respectfully dissent.
John Witt, HydroTech Corp., and attorney Mark Shere were held in contempt of court for violating the terms of a temporary restraining order. We granted transfer and affirm the trial court. * * *In Rodney Nicholson v. State of Indiana, a 9-page, 4-1 opinion, Justice David writes:
We affirm the judgment of the trial court holding Witt, Shere, and HydroTech in contempt, determining the sanction, and imposing it jointly and severally.
Shepard, C.J., and David, J., concur.
Rucker, J., dissents with separate opinion in which Sullivan, J., concurs [which concludes] In the end I agree with the Court of Appeals that plaintiffs‟ conduct did not constitute a willful violation of the terms of the temporary restraining order. I therefore respectfully dissent and would reverse the judgment of the trial court.
This case involves a conviction for stalking under Indiana Code section 35-45-10-5(a) (2008). A majority of the Court of Appeals held that a span of twenty-two months between contacts would not fit the definition of repeated or continuing harassment and therefore would not support a conviction for stalking. We disagree and affirm the trial court, holding that the lag in time between the harassing calls in 2006 and the subsequent single call in 2008 did not foreclose the conviction for stalking, particularly since much of the break in time between the calls was due to defendant’s incarceration. Ultimately, the record demonstrated the calls involved a course of conduct involving repeated and continuing harassment of the victims. * * *
There is no statutorily determinate timeframe required for a stalking conviction. Stalking could occur over a matter of minutes or years. The key is for the trier of fact to determine what the course of conduct was and if it involved repeated or continuing harassment. In this case, there was sufficient evidence for the trier of fact to determine Nicholson engaged in stalking when he made hundreds of degrading phone calls in 2006 and again made a degrading phone call in 2008. Furthermore, Nicholson’s original voyeurism conviction, inextricably linked to the current matter, was relevant to the trier of fact and not prejudicial. It is within the province of the General Assembly if it wishes to enact specific timeframe parameters to the stalking statute.
Shepard, C.J., and Dickson and Rucker, JJ., concur.
Sullivan, J., dissents, believing the opinion of the Court of Appeals in this case, 948 N.E.2d 820, to have been correct.
Law - Justifiable use of force in Florida
Here, for those who have wondered what the law is in Florida, is the Florida "Justifiable Use of Force" statute, which is now a focus in the Trayvon Martin shooting case in Sanford, Florida.
The long statute has a number of sections, here are their headings:
CHAPTER 776 - JUSTIFIABLE USE OF FORCE[More] This article by Matt Gertz in Media Matters points out:
776.012 Use of force in defense of person.
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.
776.031 Use of force in defense of others.
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.
776.041 Use of force by aggressor.
776.05 Law enforcement officers; use of force in making an arrest.
776.051 Use of force in resisting arrest or making an arrest or in the execution of a legal duty; prohibition.
776.06 Deadly force.
776.07 Use of force to prevent escape.
776.08 Forcible felony.
776.085 Defense to civil action for damages; party convicted of forcible or attempted forcible felony.
Florida's statute on the use of force in self-defense is virtually identical to Section 1 of ALEC's Castle Doctrine Act model legislation as posted on the Center for Media and Democracy (CMD). According to CMD, the model bill was adopted by ALEC's Civil Justice Task in August 2005 -- just a few short months after it passed the Florida legislature -- and approved by its board of directors the following month.ILB: Despite the news reports, after reading the Florida "justified use of force" statute, it is hard to see how it could be considered applicable here.
Environment - Decision in "SCOTUS takes up property rights dispute"
Making clear that the courts remain open for citizens who believe they are being “strong-armed” by the government, the Supreme Court on Wednesday gave property-owners a right to sue the U.S. Environmental Agency to make an immediate challenge to an EPA order to stop a development that the agency says threaten the nation’s waters. Faced with such an order, the targets of the EPA need not wait until the agency chooses to sue them to enforce the order; they have a right, under the Administrative Procedure Act, to sue as soon as they receive an order to which they object, according to the unanimous decision. More broadly, the ruling enhances citizens’ right generally to pick the time to mount a court challenge to government orders — provided that those orders are in a final form. * * *
The Court stressed that it was not deciding whether Michael and Chantell Sackett will win their court case, but only that they had a right to file it at their choosing, now that the EPA “compliance order” is final.
Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP)
For publication opinions today (3):
In Bill Musgrave v. Squaw Creek Coal Co. and Indiana Dept. of Natural Resources , a 22-page opinion, Judge Bailey writes:
Bil Musgrave (“Musgrave”), a former coal miner, appeals the trial court’s order in favor of Squaw Creek Coal Company (“SCCC”) and the Indiana Department of Natural Resources (“DNR”) on SCCC’s petition for judicial review. SCCC petitioned the trial court for judicial review of an order issued by an Indiana Natural Resources Commission (“Commission”) Administrative Law Judge (“ALJ”) vacating the DNR’s decision to release certain portions of SCCC’s reclamation bond on its surface mining permit, and the trial court reversed. The DNR cross-appeals the trial court’s order. We affirm. * * *In Michael J. Griffin v. State of Indiana , a 13-page opinion, Judge Bailey writes:
The trial court had jurisdiction to consider SCCC’s petition for judicial review and did not err by refusing to dismiss it. Musgrave is not collaterally estopped from challenging the DNR’s decision to release the bond on Permit S-008 because the jurisdictional issue regarding Alcoa’s hazardous wastes was not necessarily adjudicated in the prior proceeding. There is no genuine issue of material fact that SCCC met the phase III release requirements of I-SMCRA. SCCC has also satisfied the requirements of the Indiana Administrative Code and its own permit. The trial court’s order reversing the ALJ’s order and remanding for entry of judgment in favor of SCCC and the DNR is affirmed.
Michael J. Griffin (“Griffin”) appeals his conviction and sentence for Murder, a felony. We affirm the conviction but revise the sentence to forty-five years. * * *In Kristine Bunch v. State of Indiana , a 63-page, 2-1 opinion, Chief Judge Robb writes:
A person who commits murder has a sentencing range of between forty-five years and sixty-five years, with the advisory sentence being fifty-five years. Ind. Code § 35-50-2-3. Griffin asks that we reduce his advisory sentence to the minimum sentence, citing his military service, his past law-abiding conduct, and his cooperation with police officers in their investigation. The Indiana Constitution authorizes independent appellate review, although a trial court may have acted within its lawful discretion in determining a sentence.
Kristine Bunch was convicted by a jury in 1996 of felony murder for the death of her young son, Anthony (“Tony”), in a fire at their mobile home and sentenced to sixty years.1 In 2006, Bunch began pursuing post-conviction relief, which was ultimately denied by the post-conviction court in 2010. In this appeal from the denial of post-conviction relief, Bunch raises three issues that we expand and restate as four: 1) whether the post-conviction court erred in concluding fire victim toxicology evidence offered at the post-conviction hearing was not newly-discovered evidence; 2) whether the post-conviction court erred in concluding fire investigation technique evidence offered at the post-conviction hearing was not newly-discovered evidence; 3) whether the post-conviction court erred in denying her relief on the basis of a failure by the State to turn over exculpatory evidence in contravention of the dictates of Brady v. Maryland; and 4) whether the post-conviction court erred in denying her relief because of ineffective assistance of trial counsel. We conclude the fire victim toxicology evidence does constitute newly-discovered evidence and the post-conviction court clearly erred in denying Bunch relief on this claim. We also conclude the State's failure to turn over a report from the ATF testing of floor samples violates Brady and the post-conviction court also clearly erred in denying Bunch relief on this claim. Because either of these two errors warrants a new trial, we need not address the remaining issues. We reverse and remand for a new trial. * * *ILB: For background on the Bunch ("arson science on trial") case, start with this ILB entry and this entry, both from July 13, 2011.
The post-conviction court clearly erred in determining Bunch was not entitled to a new trial on the basis of the fire victim toxicology analysis evidence, as the evidence meets each of the nine requirements to be newly-discovered evidence. The post-conviction court also clearly erred in determining Bunch was not entitled to a new trial on the basis of a Brady violation by the State. Because our resolution of these issues is dispositive, we do not address Bunch's remaining newly-discovered evidence claim or her claim of ineffective assistance of counsel. We reverse the post-conviction court's denial of Bunch's petition for post-conviction relief, and remand for a new trial.
Reversed and remanded.
NAJAM, J., concurs.
CRONE, J., dissents with separate opinion. [that begins, at p. 49 of 63] “To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” Kubsch, 934 N.E.2d at 1144. I believe that Bunch has failed to meet this burden as to any of her claims, and therefore I respectfully dissent.
NFP civil opinions today (0):
NFP criminal opinions today (2):
Ind. Decisions - Supreme Court issues one, so far, today
In its "Order Reversing Trial Court Order" of Feb. 13, 2012 (via ILB entry), the Court wrote:
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.Today the Court has issued the promised written opinion:
In State of Indiana v. International Business Machines Corporation, a 9-page, 5-0 opinion, Justice Rucker writes:
In this case we consider whether Indiana Code section 34-29-2-1 – providing that the governor of the State of Indiana is “privileged from arrest on civil process, and from obeying any subpoena to testify” – operates to preclude a trial court from issuing an order to compel the Governor’s deposition in a contract dispute brought by the State of Indiana against a contractor. We hold that it does. * * *
[T]he privilege afforded by Indiana Code section 34-29-2-1(6) is absolute. And although it may be expressly waived, once invoked any party protected by the privilege simply may not be compelled to give testimony. The Governor’s involvement may or may not be relevant to the questions raised in this litigation. If relevant, the trial court will determine the appropriate remedial measures to ensure that the interests of justice are served.
Conclusion. We reverse the order of the trial court.
Shepard, C.J., and Dickson and David, JJ., concur.
Sullivan, J., concurs in result with separate opinion. [some quotes] I would refrain from holding that any privilege is “absolute.” * * *
In this case, I do not think it is necessary to rule on the privilege issue at all because the information IBM seeks is not relevant or material to any issue in the case. * * *
Because Governor Daniels’s testimony is not relevant or material to any issue in this case, I concur in the result of the Court’s opinion.
Ind. Courts - "Audit Reveals Questionable Practices In Small Claims Court: Funds Possibly Misappropriated, Auditors Say "
INDIANAPOLIS -- A recently released audit from the State Board of Accounts revealed questionable money handling and possible illegal activity inside the Center Township Small Claims Court in Indianapolis.The story also links to the State Board of Accounts audit of the Center Twp. Division of the Marion County Small Claims Court, filed 3/15/12.
The report, which covers activity from Jan. 1, 2009 to Dec. 31, 2010, was released at the same time as a Supreme Court Task Force investigation already underway in all nine small claims courts in Marion County.
Auditors said they found that the Center Township Small Claims Court collected fines and fees from taxpayers, but failed to disperse $1,931,438 worth to the state of Indiana, Marion County and Center Township.
According to the audit, "The court has only disbursed one check to the state of Indiana since 2006."
Generally, the funds are used for drug and crime prevention programs and to keep the judicial system running.
Deputy Examiner with the State Board of Accounts Paul Joyce said the practices are in violation of state law, RTV6's Kara Kenney reported.
“It's the law. They're violating the law the Legislature set into place," Joyce said.
The State Board of Accounts also found the court hanging on to hundreds of thousands of dollars in judgment checks owed to taxpayers.
According to the audit, “The small claims outstanding check list at December 31, 2010, totaled $294,466. The court did not have procedures established to notify individuals who were entitled to payment. The court did not mail judgment checks to the individuals they were due.”
Ind. Gov't. - "Fallout over gay youth group's license plate continues: Gay youth support group vows legal fight against state action"
The Indianapolis Star this morning has a much-updated version of its story posted online last evening, both by Mary Beth Schneider. My morning paper also includes a copy of the letter 20 senators sent to the BMV. Unfortunately, the Star has not posted that letter online...
So the ILB has taken the list of the 50 state senators and highlighted those who signed the letter to BMV:
Ronnie J. Alting , Republican, District 022More from today's story:
Jim Arnold , Democrat, District 008
Jim Banks , Republican, District 017
Vaneta Becker , Republican, District 050
Phil Boots , Republican, District 023
Richard D. Bray , Republican, District 037
Jean D. Breaux , Democrat, District 034
John Broden , Democrat, District 010
Jim Buck , Republican, District 021
Ed Charbonneau , Republican, District 005
Mike Delph , Republican, District 029
Doug Eckerty , Republican, District 026
Beverly J. Gard , Republican, District 028
Susan C. Glick , Republican, District 013
Ron Grooms , Republican, District 046
Randy Head , Republican, District 018
Brandt Hershman , Republican, District 007
Travis. Holdman , Republican, District 019
Lindel O. Hume , Democrat, District 048
Luke Kenley , Republican, District 020
Dennis Kruse , Republican, District 014
Connie Lawson, Republican, Danville -- Now Secretary of State
Timothy Lanane , Democrat, District 025
Sue Landske , Republican, District 006
Jean Leising , Republican, District 042
David C. Long , Republican, District 016
James W. Merritt Jr., Republican, District 031
Patricia L. Miller , Republican, District 032
Ryan Mishler , Republican, District 009
Frank Mrvan Jr., Democrat, District 001
Johnny Nugent , Republican, District 043
Allen E. Paul , Republican, District 027
Lonnie Randolph , Democrat, District 002
Earline S. Rogers , Democrat, District 003
Scott Schneider , Republican, District 030
Vi Simpson , Democrat, District 040
Tim Skinner , Democrat, District 038
Jim Smith , Republican, District 045
Brent Steele , Republican, District 044
Karen Tallian , Democrat, District 004
Greg Taylor , Democrat, District 033
Jim Tomes , Republican, District 049
Greg Walker , Republican, District 041
Brent Waltz , Republican, District 036
John W. Waterman , Republican, District 039
Thomas J. Wyss , Republican, District 015
Carlin Yoder , Republican, District 012
Michael Young , Republican, District 035
Richard D. Young Jr., Democrat, District 047
Joseph C. Zakas , Republican, District 011
Conservative activists, including Micah Clark of the American Family Association of Indiana and Eric Miller of Advance America, had mounted a lobbying effort aimed at the plate.
In one email to supporters, Clark urged people to contact their lawmakers, saying: "State agencies should not be helping to promote the homosexual agenda to children."
When the legislation foundered as the session came to a close, Senate President Pro Tempore David Long, R-Fort Wayne, told reporters March 8 that an alternative "solution" had been found: voiding the Indiana Youth Group's contract.
Long said the group had offered low-digit plates in exchange for donations, violating its contract. * * *
Past practice by the BMV should work in the youth group's favor, Mary Elise Haug, the board's president, said in a prepared statement.
She was referring to a March 9 statement by the BMV spokesman who said using low-number plates as thank-you gifts was a common occurrence.
"We are hopeful that . . . the additional information about the common practice and previous interpretation allowing the use of low-numbered plates as thank-you gifts will cause the BMV to reconsider the suspension," Haug said.
The same day that senators trumpeted their alternative solution to the controversy, Lubsen confirmed to The Star that someone from the Senate had contacted the BMV about the IYG contract and that no decision had been made.
He said the group's contract did bar the auctioning of the plates but also said the BMV has in the past allowed groups to give out low-numbered plates as thank-you gifts to donors.
On March 9, 20 senators, including Lawson, sent the letter to the BMV urging that the group lose its plates.
On March 15, Lubsen was no longer working with the BMV. Officials at BMV said Lubsen resigned and it was a personnel matter they would not discuss. Lubsen declined comment.
The next day, March 16, the BMV rescinded the youth group's plates, along with those of two other groups that had also been offering low-digit plates to donors: the 4-H Foundation and the Greenways Foundation.
Ind. Law - Gov. signs SEA 1, the right to defend against unlawful entry
A news release just received:
Tuesday evening, Governor Daniels signed SEA 1, titled “Right to defend against unlawful entry.” He issued the following statement about his decision to sign the bill:The ILB predicted yesterday that the Gov. would allow the bill to take effect without his signature...
“After close inspection, I have decided to sign Senate Enrolled Act 1. Contrary to some impressions, the bill strengthens the protection of Indiana law enforcement officers by narrowing the situations in which someone would be justified in using force against them. Senate Enrolled Act 1 puts into place a two-part test before a person can use deadly force against a law enforcement officer: First, it clarifies and restates the current requirement that a person reasonably believe the law enforcement officer is acting unlawfully. Second, it adds that the force must be reasonably necessary to prevent serious bodily injury to the citizen. This second requirement is not part of the current law.
“Moreover, unless a person is convinced an officer is acting unlawfully, he cannot use any force of any kind. In the real world, there will almost never be a situation in which these extremely narrow conditions are met.
“So as a matter of law, law enforcement officers will be better protected than before, not less so. What is troubling to law enforcement officers, and to me, is the chance that citizens hearing reports of change will misunderstand what the law says.
“Today is an important day to say: Indiana’s outstanding law enforcement officers put their lives on the line every day to protect all Hoosiers. The right thing to do is cooperate with them in every way possible. This law is not an invitation to use violence or force against law enforcement officers. In fact, it restricts when an individual can use force, specifically deadly force, on an officer, so don’t try anything. Chances are overwhelming you will be breaking the law and wind up in far worse trouble as a result.”
This was the final bill of the 2012 session requiring the governor’s action. Bill Watch has been updated.