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Thursday, March 22, 2012

Ind. Decisions - "Indiana can't deny welfare without explaining reason"

Today's Supreme Court opinion in Sheila Perdue, et al. v. Michael A. Gargano, et al. (ILB entry here) is the subject of an AP story this evening reported by Charles Wilson. Some quotes:

The Indiana Supreme Court said Thursday that the state Family and Social Services Administration can’t deny Medicaid, food stamps or welfare to people without first doing a better job of telling them why.

The unanimous ruling came in a four-year-old class action lawsuit that challenged the way the outsourcing of the state’s welfare system dealt with clients. The system has since been modified, but a lawyer for the American Civil Liberties Union of Indiana, which filed the lawsuit in 2008, said the problem persists.

In a 23-page opinion, the justices said the state agency violated applicants’ due process rights when it sent them notices that stated their benefits were denied because they had failed to cooperate without citing a specific reason. The 2008 lawsuit argued that the agency sent notices denying or cutting off Medicaid, welfare or food stamps because of missing documents in clients’ applications, but never told clients which documents were missing.

And from a press release from ACLU of Indiana:
The American Civil Liberties Union of Indiana won the class-action lawsuit that will result in changes to the intake process used by Indiana's Family and Social Services Administration for applicants and recipients of Medicaid, Food Stamp, TANF and Hoosier Healthwise benefits.

Prior to today's decision, FSSA routinely denied benefits to program applicants, and terminated benefits to Hoosiers already enrolled, without providing adequate information, explanation or assistance. FSSA mailed applicants and recipients denial letters-sometimes to the wrong addresses-saying they had "failed to cooperate" with a process that involved submitting as many as 20-30 documents to verify eligibility to participate, including bank statements, identification cards and utility bills. If even one of the requested documents was missing, FSSA would reject the application.

The Indiana Supreme Court said, however, that FSSA's failure to specify which documents it believed were not received violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.

"The state's fundamental obligation to inform benefit applicants of the specific reasons for denying claims has been established for more than 40 years," said ACLU of Indiana staff attorney Gavin M. Rose. "We are exceedingly pleased with the Indiana Supreme Court's ruling to provide for the neediest among us where the state had voluntarily failed to do so."

Posted by Marcia Oddi on Thursday, March 22, 2012
Posted to Ind. Sup.Ct. Decisions

Law - "The 23 States That Have Sweeping Self-Defense Laws Just Like Florida’s"

That is the headline to this article today by Cora Currier in ProPublica. From the story:

Most states have long allowed the use of reasonable force, sometimes including deadly force, to protect oneself inside one’s home — the so-called Castle Doctrine. Outside the home, people generally still have a “duty to retreat” from an attacker, if possible, to avoid confrontation. In other words, if you can get away and you shoot anyway, you can be prosecuted. In Florida, there is no duty to retreat. You can “stand your ground” outside your home, too.

Florida is not alone. Twenty-three other states now allow people to stand their ground. Most of these laws were passed after Florida’s. (A few states never had a duty to retreat to begin with.)

Here’s a rundown of the states with laws mirroring the one in Florida, where there’s no duty to retreat in public places and where, in most cases, self-defense claims have some degree of immunity in court. (The specifics of what kind of immunity, and when the burden of proof lies on the prosecution, vary from state to state.)

Included in the list of 23 states, each of which links to the relevant statutes, is Indiana.

The Indiana link is to IC 35-41-3, Defenses Relating to Culpability.

The version linked to, however, is now out-of-date, because SEA 1, which makes major changes to one of the sections, IC 35-41-3-2, took effect immediately upon being signed into law by Governor Daniels on Tuesday evening, March 20th.

Posted by Marcia Oddi on Thursday, March 22, 2012
Posted to General Law Related

Ind. Courts - Terre Haute federal court site on list of those targeted for closing

Thanks to How Appealing for pointing to this AP story headed "Feds consider closing some courtrooms." A quote:

Documents obtained by The Associated Press show 60 federal court facilities in 29 states could be on the chopping block. Most of the courtrooms are in buildings that house other federal agencies including in post offices and many are located in remote areas. Critics say closing them could make it more difficult for people to get to court proceedings.
According to this list, also via How Appealing, the Terre Haute court site is 19th out of 60.

Posted by Marcia Oddi on Thursday, March 22, 2012
Posted to Indiana Courts

Ind. Gov't. - "Gasification-project leader optimistic about status of state tax incentives"

Updating earlier ILB entries about the controversial proposed coal gasification plant in Rockport, Stuart Cassidy reports today in the Spencer County Journal-Democrat in a long story that begins:

ROCKPORT – During a brief phone conference March 14 with the Lincolnland Economic Development Corp. executive board, Indiana Gasification project manager Mark Lubbers was optimistic that the Indiana Department of Revenue would side with the company and backer Gov. Mitch Daniels to institute a 20-year, $120 million tax credit.

The agency is slated to rule on whether the tax credit applies for the $2.6 billion plant. Supporters of the project believe the credits are integral to the success of the plant and were meant to be part of the deal from its earliest stages. Last month the credits were stripped from a bill that passed a House vote.

The company also lobbied the legislature to amend a section of tax code that provides incentives for integrated power plants who sell their product directly to utility providers for consumer use. According to Lubbers, IG could have easily made that claim, but upon Indiana Finance Authority urging they wanted to clarify the statute to include language that specified companies selling energy to the IFA was also covered. He said once that provision was introduced, Vectren began to openly oppose the move.

“A smarter path would be to ask the Indiana Department of Revenue for a revenue ruling that has the same force of law,” Lubbers said. “We put our arguments before them and asked them to issue a ruling that states clearly that we are covered by the definition of integrated power plants.”

Posted by Marcia Oddi on Thursday, March 22, 2012
Posted to Indiana Government

Courts - More on "Supreme Court expands rights in plea bargains"

Updating this ILB entry from earlier today, Adam Liptak's coverage in the NY Times begins:

WASHINGTON — Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.

The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.

More:
The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in a pair of dissents he summarized from the bench, “the court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.”

Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations.

Justice Scalia wrote that expanding constitutional protections to that realm “opens a whole new boutique of constitutional jurisprudence,” calling it “plea-bargaining law.”

Scholars agreed about its significance.

“The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.

Posted by Marcia Oddi on Thursday, March 22, 2012
Posted to Courts in general

Environment - "Despite repeated losses in the Supreme Court, the EPA and U.S. Army Corps of Engineers have yet to make any serious effort to delineate the scope of their regulatory jurisdiction."

That is a quote from this lengthy post by Jonathan H. Adler, headed "Thoughts on Sackett v. EPA," in The Volokh Conspiracy. See March 21st ILB entry here.

Posted by Marcia Oddi on Thursday, March 22, 2012
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In New Albany Historic Preservation Commission and City of New Albany v. Bradford Realty, Inc. , a 22-page, 2-1 opinion, Judge Riley writes:

Appellants-Defendants, the New Albany Historic Preservation Commission and the City of New Albany (collectively, the NAHPC), appeal the trial court's summary judgment in favor of Appellee-Plaintiff, Bradford Realty, Inc. (Bradford), concluding that Bradford had not received due process when the NAHPC designated its property to be located in a historic district. We reverse in part and affirm in part. * * *

[Issues] (1) Whether the trial court erred by declaring the City of New Albany's ordinance designating Bradford's property located within the historic district as an adjudicative act instead of a legislative act and therefore requiring actual notice of the potential designation pursuant to the United States Constitution's due process provision; and
(2) Whether the trial court erred when it concluded that Bradford was not required to obtain a Certificate of Appropriateness when it replaced the property's original siding with vinyl siding.

On Cross-Appeal, Bradford presents us with one issue, which we restate as: Whether the trial court erred when it concluded that Bradford did not have a claim for inverse condemnation. * * *

Based on the foregoing, we find that Bradford was not entitled to actual notice of the potential designation of the historic district and that Bradford was required to obtain a Certificate of Appropriateness when it replaced the property's original siding with vinyl siding. Therefore, we reverse the trial court's grant of summary judgment in favor of Bradford and grant summary judgment on these grounds to NAHPC.

Also, we conclude that the trial court properly denied Bradford's request for summary judgment on his claim for inverse condemnation.

MATHIAS, J. concurs
FRIEDLANDER, J. dissents with separate opinion [that begins, at p. 19 of 22] I agree with the Majority that Bradford Realty's notice that this property was to be designated as located within a historic district comported with due process principles. I also agree that the trial court erred in concluding that Bradford had a claim for inverse condemnation. I respectfully dissent, however, from the conclusion that the trial court erred in ruling that Bradford was not required to obtain a Certificate of Appropriateness (COA) when it replaced the original siding with vinyl siding.

In Lawane Chaney on Behalf of Himself and All Others Similarly Situated v. Clarian Health Partners, Inc., a 4-page opinion on rehearing from order on motion for appellate fees and costs, Judge Najam writes:
Having given thorough consideration due each of Weldy’s contentions on rehearing, we conclude that he is correct on two points. But, considering all of the record, those errors are insignificant and do not alter our ultimate determination in the Order.
NFP civil opinions today (4):

Donald L. Webb, III v. Sheriff Kenneth A. Murphy and Town of Brookville, Indiana; Terry Mitchum (NFP)

In Re: The Marriage of Lisa Mae Slayback Gillispie v. Danny Lee Gillispie (NFP)

The Marriage of: Donald J. Shaughnessy, Jr. v. Lyn A. Shaughnessy (NFP)

Demitrus L. Grant v. The Bank of New York (NFP)

NFP criminal opinions today (1):

Kenny Green v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 22, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court continues record output of decisions - including foodstamp and pollution exclusion opinions.

In Sheila Perdue, et al. v. Michael A. Gargano, et al., a 23-page, 5-0 opinion, Justice Dickson writes:

In this challenge to the Indiana Family and Social Services Administration's (FSSA) automated system of processing claims for Medicaid, Food Stamps, and Temporary Assistance to Needy Families (TANF) benefits, we reverse the judgment of the trial court and hold that the FSSA's denial notices are insufficiently explanatory but that the FSSA may deny an application for Food Stamp benefits when the applicant fails to cooperate in the eligibility determination process. We affirm in part the trial court's grant of Perdue's motion for summary judgment and hold that Sheila Perdue is entitled to reasonable accommodations in applying for benefits but that this does not necessarily require providing a caseworker or case management services. * * *

Summary judgments in favor of the State as to Class A and Sub-class A and in favor of the plaintiffs as to Class C are reversed, and summary judgment in favor of Sheila Perdue is affirmed in part. With respect to Class A and Sub-class A, we grant the plaintiffs' motion for summary judgment and hold that the notices used by the FSSA to inform applicants that they have been denied Medicaid, Food Stamp, and TANF benefits are unconstitutional under the Due Process Clause of the Fourteenth Amendment to the United States Constitution because they fail to sufficiently explain the reasons underlying the agency's adverse determination. On this issue, this case is remanded to the trial court to adjudicate the plaintiffs' related claims for relief. With respect to Class C, we reverse the grant of the plaintiffs' motion for summary judgment and hold that federal law permits the FSSA to deny an application for Food Stamp benefits when the applicant fails to cooperate in the eligibility determination process. With respect to Sheila Perdue, we affirm in part the trial court's grant of Perdue's motion for summary judgment to hold that she is entitled to reasonable accommodation, but we decline to require that the State necessarily must provide a caseworker or case management services.

Hunt Construction Group, Inc., and Mezzetta Construction, Inc. v. Shannon D. Garrett, a 14-page, 4-1 opinion, Justice Sullivan writes:
An employee of a concrete subcontractor was injured in a workplace accident during the construction of Lucas Oil Stadium. She seeks to recover damages for negligence from the project‟s construction manager by whom she was not employed but whom she contends had a legal duty of care for jobsite-employee safety. Because we find that the construction manager did not have, either by the terms of its contracts or by its actions, such a legal duty, we hold that the construction manager may not be held liable to the worker for negligence. * * *

The judgment of the trial court is reversed, and the case is remanded for proceedings consistent with this opinion.

Shepard, C.J., and Rucker and David, JJ., concur.
Dickson, J., dissents, believing that the duty of care owed by the construction manager is a mixed question of fact and law, and that, under the facts of this case, material issues of fact exist that preclude summary judgment for either party.

In State Automobile Mutual Insurance Company v. Flexdar, Inc. and RTS Realty, a 13-page 3-2 opinion, Justice Rucker writes:
In this case we examine whether the language of a pollution exclusion in a commercial general liability policy is ambiguous. We hold that it is. * * *

Indiana decisions have been consistent in recognizing the requirement that language of a pollution exclusion be explicit. “To unsettle the law . . . would show scant respect for the principle of stare decisis.” CSX Transp., Inc. v. McBride, ___ U.S. ___, 131 S. Ct. 2630, 2639-40 n.4 (2011). We see no reason to abandon settled precedent.

The judgment of the trial court is affirmed.

Dickson, J., concurs.
David, J., concurs in result.
Sullivan, J., dissents with separate opinion in which Shepard, C.J., joins. [the dissent begins, at p. 11, with] The Court holds that American States Insurance Co. v. Kiger, 662 N.E.2d 945 (Ind. 1996), demands that the pollution exclusion found in most general liability insurance policies be ignored. I respectfully dissent.

A few days ago, Judges Richard A. Posner, Diane P. Wood, and David F. Hamilton, joined in a decision enforcing a pollution exclusion in a case for all relevant purposes the same as this. Scottsdale Indem. Co. v. Vill. of Crestwood, Nos. 11-2385, 11-2556, 11-2583, 2012 U.S. App. LEXIS 5069 (7th Cir. Mar. 12, 2012). Their decision is worthy of review here, both for its clarity and applicability.

Posted by Marcia Oddi on Thursday, March 22, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - As if to show that fears of state government sites going down are real

In the past the ILB has expressed concern that the Indiana Register and the Indiana Administrative Code, which contain the rules and regulations of every Indiana agency, are available only online. Other official state law sites, such as the Indiana Code and the Court site, as well as the Indiana General bills resources, are also highly relied on.

Here are some reports from the Washington Post that recently caught my attention.

From March 3, 2012:

Employees at a small job-development agency in the Commerce Department have now been without computers or Internet access for six weeks.

This sounds impossible. But according to the Economic Development Administration, it’s true. A virus of still-undetermined-origin attacked the place in mid-January, and the cyber-security experts called in to figure out what went wrong are still working on the problem.

From March 14, 2012:
The Economic Development Administration, a small job-development agency in the Commerce Department that gives out grants to low-income communities, is in its eighth week of a cyber-blackout.

Commerce officials say they still haven’t determined what is behind the virus that has affected all of EDA’s computers since mid-January, prompting the government to take the network off-line.

From March 22, 2012: The ILB checked the site today and it is still offline.

Posted by Marcia Oddi on Thursday, March 22, 2012
Posted to Indiana Government

Ind. Courts - "CAUTION: Now Entering Grey Area: Indiana Judges’ Use of Internet Information"

That is the title to an article by Gary Price, Lewis & Kappes, and Ellen Winternheimer, 2011 summer associate at Lewis & Kappes, that appeared in the August 2011 issue of Litigation Commentary and Review. A few quotes:

In the past decade, many Indiana Appellate judges have indicated openness to the use of the Internet in the courtroom. However, Indiana’s stance on off-the-record use of the Internet is still developing. Initially, Indiana Appellate judges were cautious and sporadic in their use in opinions of off-the-record information from the Internet. In little over a decade, the use of off-the-record Internet references in opinions by Indiana appellate judges has gradually expanded. Certainly this expanded use of sua sponte Internet searches warrants scrutiny and careful development that is consistent with the existing rules of evidence and appellate practice. * * *

The Indiana Code of Judicial Conduct reminds judges that they should not look to evidence or other information outside the record. * * *

Judicial use of the Internet to gather off-the-record information can present a problematic situation in which the judge bypasses the requirements of expert witness admissibility and takes away a party’s right to know the substance and grounds for expert witness testimony in order to challenge it. Particular care should be taken to ensure that the court does not rely on an expert opinion that was not vetted by the trial court and admitted into evidence. Otherwise, when a judicial opinion is issued, questions inevitably arise for the litigant: Was the information simply extra information to confirm or explain the opinion? Was this information critical to the final decision? Is it worth an appeal if I do not know either way?

The interesting, highly-researched article traces the evolution of Indiana Court of Appeals' citation of websites.

Interestingly, the article looks at two 2006 COA opinions citing Wikipedia, an issue that was touched on just this week by the COA in Hardin v. Hardin (although in Hardin the Court commented in a footnote on the citation of Wikipedia in a brief).

Posted by Marcia Oddi on Thursday, March 22, 2012
Posted to Indiana Courts

Courts - "Supreme Court expands rights in plea bargains"

Here from Google is a sampling of some stories about the SCOTUS's decision yesterday in Lafler v. Cooper:

Justices expand rights of accused in plea deals
Philadelphia Inquirer
By David G. Savage WASHINGTON - The Supreme Court, noting that virtually all criminal cases are settled through plea deals, has ruled for the first time that defendants have a right to competent advice from a lawyer on whether to accept an offer to ...

Supreme Court expands rights in plea bargains
Boston Globe
By Robert Barnes WASHINGTON - A divided Supreme Court ruled for the first time Wednesday that the guarantee of effective legal representation applies to plea bargain agreements, significantly expanding the constitutional rights of defendants as they ...

Criminal defendants have right to competent lawyer for guilty plea aid, court ...
Detroit Free Press - ‎7 hours ago‎
By Greg Stohr WASHINGTON -- A divided US Supreme Court ruled for the first time Wednesday that criminal defendants have a constitutional right to a competent lawyer when they are offered a chance to plead guilty to get a reduced sentence.

Rulings Expand Right to Counsel
Wall Street Journal - ‎13 hours ago‎
By JESS BRAVIN WASHINGTON—A divided Supreme Court on Wednesday expanded the interpretation of the constitutional right to effective counsel, ruling that if defendants turn down a plea bargain because of incompetent legal advice, their convictions may ...

Supreme Court expands plea bargain rights of criminal defendants
Washington Post - ‎14 hours ago‎
A divided Supreme Court ruled for the first time Wednesday that the guarantee of effective legal representation applies to plea bargain agreements, significantly expanding the constitutional rights of defendants as they move through the criminal ...

Posted by Marcia Oddi on Thursday, March 22, 2012
Posted to Courts in general

Ind. Decisions - "Indiana appeals court reverses murder, arson convictions: Advances in fire science cited in case of woman whose 3-year-old son died in 1995 blaze"

The 63-page, 2-1 COA opinion yesterday in Kristine Bunch v. State of Indiana (see ILB entry, 3rd case, plus links to earlier posts) is the subject of a number of stories today, including this one by Jared S. Hopkins in the Chicago Tribune. Some quotes:

During Bunch's trial, investigators pointed to burn patterns and evidence of an accelerant. But the appeals court opinion cited newly discovered toxicology evidence and the failure by the state to turn over a report on testing samples from the fire scene.

"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," wrote Margret Robb, chief judge of the court.

Here is a news release from Schiff Hardin and Northwestern’s Center on Wrongful Convictions. (The ILB does not yet find a press release from the Indiana AG.)

Posted by Marcia Oddi on Thursday, March 22, 2012
Posted to Ind. App.Ct. Decisions