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Saturday, March 31, 2012

Ind. Law - "Ag gag" bill fails in Indiana; passes in Iowa

A so-called "ag gag" bill, SB 184, authored by Senators Grooms and Holdman, failed to move out of Senate committee in 2012. The digest:

Unlawful recording of agricultural operations. Makes it unlawful recording of agricultural operations, a Class A misdemeanor, for a person to: (1) enter real property that is owned by another person and on which agricultural operations are being conducted; and (2) take a photograph of or make a video recording or motion picture of the real property, structures located on the real property, or the agricultural operations being conducted on the real property; without the written consent of the owner of the real property or an authorized representative of the owner.
The Iowa State Daily reported on March 18, in a story by Randi Reeder:
Two weeks ago, Gov. Terry Branstad signed House File 549, an "ag gag" bill that has made it illegal to expose incriminating undercover evidence of animal abuse.

This is a new concept brought to the issue of whistle-blowing for animal abuse in the agricultural industry and is being called a threat to the health and safety of consumers along with violating the freedom of the press.

Before this bill, what the farms had to protect themselves was “good old-fashioned trespassing,” said Barbara Mack, who is a lawyer and associate professor of journalism and communication. “What I don’t understand is why it’s even necessary.” * * *

“This bill moves this out of the realm civil and into realm of criminal behavior,” Mack said. * * *

Iowa was the first state to pass this bill. Other states such as Utah, Nebraska, Minnesota, Missouri, Illinois, New York and Indiana are discussing passing similar "ag gag" bills. These states include some of the nation’s most concentrated factory farming practices.

Posted by Marcia Oddi on Saturday, March 31, 2012
Posted to Indiana Law

Ind. Decisions - Closing arguments set for April 3rd in State/IBM trial

From the March 30th Indianapolis Star:

Attorneys for the state and IBM have finished presenting witnesses and evidence in a trial over dueling lawsuits filed over a canceled welfare-modernization contract.

Both sides will give their closing arguments Tuesday. Marion Superior Court Judge David Dreyer could rule at any time after that.

The trial began Feb. 27 and has lasted about a month. IBM rested its case Wednesday; the state did so earlier this month. * * *

[Marion Superior Court Judge David Dreyer] has already ruled on some issues in the case.

Earlier this year, he decided that the state owes IBM about $40 million in fees, and he capped the damages the state could seek at $125 million.

On Sunday, he dismissed 17 of the state's claims that alleged that IBM had provided false information throughout the contract.

Posted by Marcia Oddi on Saturday, March 31, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "New Lake Superior Court judge interviews scheduled"

Bill Dolan reports in the March 29th NWI Times:

CROWN POINT | Lake County lawyers have six weeks to take the first step to make their dreams of becoming a judge a reality.

Indiana Supreme Court Justice Robert Rucker announced Thursday that any attorney living in the county is eligible to fill a judicial vacancy in the Lake Superior Court Civil Division by filing an application no later than 4 p.m. May 4.

Rucker states in a court notice that the Lake County Judicial Nominating Commission will begin interviewing candidates May 21. * * *

Civil Division Judge Diane Kavadias-Schneider will take over Dywan's courtroom in Crown Point. The new judge will take over her spot in in the county's Hammond satellite courthouse.

Rucker will assemble the commission's panel of four lay people and four local attorneys, and he will join them in selecting three finalists.

The finalists' names will then be forwarded to Gov. Mitch Daniels, who makes the final pick.

ILB: Lake County is one of the few Indiana counties employing merit selection, rather than election of judges. Offhand, I think the only other is St. Joseph County.

Posted by Marcia Oddi on Saturday, March 31, 2012
Posted to Indiana Courts

Vacancy on Supreme Court 2012 - "Retired Chief Justice Shepard steps into Senior Judge role at Court of Appeals"

The Indiana Court of appeals issued this news release yesterday:

INDIANAPOLIS – The Court of Appeals of Indiana welcomes retired Supreme Court Chief Justice Randall T. Shepard to its rank of distinguished Senior Judges, effective April 4.

“Judge Shepard has served our state both ably and honorably for a very long time and I’m extremely pleased that he’ll continue that service as a Senior Judge,” Court of Appeals Chief Judge Margret G. Robb said. “He’ll find himself in excellent company here, and we all anticipate his contributions to the Court’s important work.”

Judge Shepard retired from the Supreme Court on March 23 after 27 years, including 25 as Chief Justice. As one of his first assignments as a Senior Judge, he will join a Court of Appeals panel hearing oral argument on May 4 at Franklin Community High School in Franklin, IN. He will be joined on that panel by Judge John G. Baker and Chief Judge Robb.

Judge Shepard will join four other Senior Judges on the Court of Appeals. They are Judge Patrick D. Sullivan Jr., Judge William I. Garrard, Judge Betty Barteau, and Judge John T. Sharpnack, who all retired from the Court of Appeals before their certification as Senior Judges.

The Senior Judge program allows experienced Indiana judges to ease caseload pressures on trial courts and the Court of Appeals. Only judges who have served at the appellate court level (Court of Appeals or Supreme Court) may serve as Court of Appeals senior judges.

Judge Shepard is not the first retired Supreme Court Justice to enter the Senior Judge program. Retired Justice Theodore R. Boehm served briefly as a Court of Appeals Senior Judge after his 2010 Supreme Court retirement.

The 15-member Court of Appeals is Indiana’s second highest court and issues about 2,500 written opinions each year.

ILB: Traditionally, if a Senior Judge is on a COA panel, he or she writes the opinion.

Posted by Marcia Oddi on Saturday, March 31, 2012
Posted to Vacancy on Supreme Court 2012

Friday, March 30, 2012

Ind. Decisions - Court of Appeals issues 7 today (and 13 NFP)

For publication opinions today (7):

In Kristine A. and Larry G. Dawson v. Fifth Third Bank, a 13-page opinion, Judge Darden concludes:

Given the stipulated facts presented in this case, we cannot say that the Dawsons have met their burden of proving that they were entitled to summary judgment. Aside from the fact that they have cited little to no caselaw to support their arguments, they have failed to show that Fifth Third’s acts or omissions were responsible for their loss by purchasing the Motorcycle without knowledge of Fifth Third’s lien to the extent that equity should be granted to them. Accordingly, we affirm the trial court’s denial of the Dawsons’ motion for summary judgment.
In Lewis J. Richardson and Laurel Richardson v. Board of Commissioners of Owen County, an 11-page opinion, Judge Baker writes:
Today we consider whether the petitioners were aggrieved parties and had standing to challenge the County Commissioners’ decision to vacate a portion of a roadway that provided an access to a cemetery where their daughter was buried. We hold that the petitioners did not suffer a special or unique injury above that which the general public sustained. Moreover, the evidence established that there were alternate entrances to the cemetery so the petitioners were not hindered within the meaning of the statute from gaining access to their daughter’s grave. Thus, the petitioners were not entitled to challenge the County Commissioners’ decision to vacate a portion of the roadway.

Appellants-petitioners Lewis and Laurel Richardson (collectively, the Richardsons), appeal the trial court’s judgment that vacated a portion of a roadway, in favor of the Board of Commissioners of Owen County (Commissioners). More particularly, the Richardsons maintain that the trial court erred in determining that they were not aggrieved parties and, therefore, could not appeal the vacation ordinance under Indiana Code section 36-7-3-12(f).

We conclude that because the Richardsons are not abutting landowners to the vacated roadway, the trial court correctly determined that they lacked standing as an aggrieved party to remonstrate against the vacation of the roadway. In other words, the Richardsons have failed to demonstrate that they have sustained an injury that is unique or special to them.

In Imperial Insurance Restoration & Remodeling, Inc. v. James Costello, an 11-page opinion, Judge Bailey concludes:
Although Imperial provided a contract to Costello that it concedes did not satisfy requirements of HICA, that non-compliance did not automatically render the contract void. Instead, the issue required examination of several factors to determine whether the contract should be enforced. After examining those factors, we conclude that the contract is enforceable and should not be voided. Imperial has thus demonstrated prima facie error in the trial court's judgment. It is reversed and remanded with instructions to enter judgment in favor of Imperial for $669.86 and to hold a hearing to determine the contractual interest due on the contract and whether attorney fees or other costs are warranted and, if so, in what amount. Reversed and remanded.
In Steinrock Roofing & Sheet Metal Inc. v. James S. McCulloch, PNC Bank, N.A., a 17-page opinion, Judge Baker writes:
After the defendant-homeowner’s roof was severely damaged in a windstorm, the plaintiff-contractor undertook to repair the damages. The homeowner failed to pay the entire amount due under the contract because of the contractor’s allegedly deficient workmanship. The contractor sued and the homeowner counterclaimed. Substantial evidence was presented at trial establishing that the contractor’s work was deficient in a number of respects. And the trial court, as the fact finder, properly awarded damages to the homeowner on his counterclaim. The trial court also properly concluded that the contractor had waived any claim to reduce the damage award under the Home Improvement Warranties statute.

Appellant-plaintiff Steinrock Roofing & Sheet Metal, Inc. (Steinrock), appeals the trial court’s judgment entered in favor of appellee-defendant James S. McCulloch, and PNC Bank, N.A.1 Specifically, Steinrock argues that the trial court erred in excluding discovery and the potential testimony of an insurance agent who inspected the work and made the payments for repairs on the roof. Steinrock also maintains that the trial court should have found in his favor on his defamation claim and that the trial court erred in finding a material breach of contract by Steinrock. Moreover, Steinrock argues that the trial court should have limited McCulloch’s damages to the difference in fair market value in accordance with Indiana Code section 32-27-1-14, the Home Improvement Warranties statute.

Concluding that the trial court correctly determined that Steinrock breached the contract, properly awarded damages to McCulloch, and finding no other error, we affirm.

In D.C. v. J.A.C., a 12-page opinion, Judge Baker writes:
In this case, a mother was offered a director-level position at a hospital near Nashville, Tennessee. Not only was this advanced position essentially unavailable to her in the Indianapolis market, but it also came with a salary increase of over $30,000. Nevertheless, when her ex-husband filed a motion to modify custody and prevent her from relocating with their son, the trial court found in his favor, focusing heavily on the mother’s personal relationship with her boyfriend and the father’s reduced parenting time if the mother relocated with their son. We conclude that this was clearly erroneous, inasmuch as it virtually ignored the immense benefit that the mother’s new position would bring to her and the child. Moreover, any move of significant distance is going to deprive the nonrelocating parent of time with their child; however, this fact alone does not mean that the relocation is not in the child’s best interest.

D.C. (Mother) appeals the trial court’s order granting J.A.C.’s (Father) motion to modify custody and prevent Mother from relocating with their minor child, B.C. Specifically, Mother argues that although the trial court properly applied the burden shifting analysis contained in the Relocation Statute, the trial court improperly concluded that relocation alone was sufficient to show that it was in B.C.’s best interest to remain in Indiana.

Father cross-appeals, contending that he is entitled to appellate attorney fees because Mother’s argument on appeal is frivolous, and she has failed to adequately follow the appellate rules. Concluding that Father is not entitled to appellate attorney fees and that inasmuch as relocation alone cannot be used as a reason to support a custody modification, we reverse and remand with instructions that the trial court be mindful of the relocation when establishing Father’s parenting time.

In Clark County Drainage Board and Clark County Board of Commissioners v. Robert Isgrigg, a 5-page opinion on motion for rehearing, Judge Najam writes:
Robert Isgrigg files a petition for rehearing from our opinion in which we affirmed in part and reversed in part the trial court's entry of summary judgment for Isgrigg. In his petition, Isgrigg contends that our conclusion that the Sunset Hills project did not involve a regulated drain is erroneous for four reasons, two of which we consider on rehearing. For the reasons discussed below, neither of Isgrigg's assertions on rehearing are meritorious. We affirm our prior opinion in all respects.

Carolyn Boss v. State of Indiana - "As to Boss's character, it appears that her criminal history consists only of a conviction for driving with a suspended license.' She also expressed remorse during the sentencing hearing. Moreover, the victims stated that they did not want anything bad to happen to Boss, and the State recommended home detention. While we acknowledge the victims' statements as well as the State's recommendation, and Boss's character notwithstanding, it is the nature of the offenses that is critical to our review of her sentence.

"As to Boss's offense, her failure to adequately restrain three dogs resulted in catastrophic injuries to two people. Furthermore, the testimony presented indicates that this was not the first occasion Boss's dogs ran loose. In light of these factors, we find that Boss's sentence of one year in jail for each count of failure to restrain a dog is appropriate."

NFP civil opinions today (4):

Bilsland, LLC, LPM Investments, LLC, Phillip D. Mervis, Louis Mervis, Henry Bilsland, Justin Bilsland, and Biosafe Engineering, LLC v. Bradley D. Crain and Richard J. Redpath (NFP)

In Re the Paternity of: B.H. by next friend: B.C. (Father) v. D.H. (Mother) (NFP)

State of Indiana, Little Calumet River Basin Development Commission v. Gary Murphy and Lake County Treasurer (NFP) - NWI Times story here, headed "Little Cal easement worth $300,000."

K.J. v. Review Board of the Indiana Dept. of Workforce Development and T.N.V.A.H. (NFP)

NFP criminal opinions today (9):

Delmar J. Kent v. State of Indiana (NFP)

Andrew Abbott v. State of Indiana (NFP)

J.R.T. v. State of Indiana (NFP)

Vicky L. Tisdial v. State of Indiana (NFP)

Derrick L. Myers v. State of Indiana (NFP)

Aaron Isby v. State of Indiana (NFP)

Gerald McKinney v. State of Indiana (NFP)

Rondell Boyd v. State of Indiana (NFP)

Decarlos J. Freeman v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 30, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Ft. Wayne attorney gets 6-month suspension

Rebecca S. Green has the complicated story today in the Fort Wayne Journal Gazette, all involving the respondent's handling of bankruptcy cases. The opinion is here, In the Matter of Anthony R. Adolf.

Posted by Marcia Oddi on Friday, March 30, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Marion County Prosecutor: I'm Running Again In 2014: Terry Curry talks about budget, other issues in wide ranging interview"

Ray Steele has this WIBC interview.

Posted by Marcia Oddi on Friday, March 30, 2012
Posted to Indiana Courts

Ind. Courts - "Sen. Richard Lugar to fight registration ruling today" in Circuit Court

Here is a brief story by Carrie Ritchie of the Indianapolis Star. A quote:

In their appeal, the Lugars claim that the ruling [by the Marion County Election Board] violates Indiana's constitution and state laws. They also cite advice and advisory opinions that have supported their use of the home to vote, including opinions from several Indiana attorneys general, most recently current Attorney General Greg Zoeller.

They're asking Marion Circuit Court Judge Louis Rosenberg to overturn the board's ruling or at least grant a preliminary injunction that would allow them to vote in the May primary while the case is being resolved.

The hearing will begin at 9 a.m. today in Marion Circuit Court.

Here is an earlier ILB entry from March 7th.

Posted by Marcia Oddi on Friday, March 30, 2012
Posted to Indiana Courts

Ind. Law - More on: "Garrett High School Senior Expelled For Tweeting Profanity"

Updating this ILB entry from Wednesday, an editorial in the Fort Wayne Journal Gazette this morning point out:

Indiana school officials have improperly disciplined students, on occasion, for behavior outside of school. A bill considered by the General Assembly this year – and wisely rejected – would even have sanctioned the practice. But a Garrett High School senior’s case isn’t an example of overreaching.

A district has the right and obligation to punish students for misusing school-issued property, just as any employer would do if a worker misused company property. That’s a lesson students need to learn.

Lost in the discussion of Austin Carroll’s case is that the Garrett senior used a school-issued computer to post a profane message, even after warnings not to do so. Garrett students and their parents are asked to sign a clearly articulated “respectable use policy” acknowledging they will use the equipment in a responsible manner.

Superintendent Dennis Stockdale told The Journal Gazette the school has never disciplined and will not discipline students for anything they tweet or post online using their own computers, on their own time and outside the district’s network.

The Garrett-Keyser-Butler Schools district isn’t technologically backward, as the growing blogosphere attention to the case seems to suggest. If school officials there say Carroll was using his school-issued computer to post profane messages instead of posting them overnight from a home computer, that’s likely the case.

Posted by Marcia Oddi on Friday, March 30, 2012
Posted to Indiana Law

Ind. Gov't. - "Indiana lacks answers on toxicology lab tests used in criminal cases: 30 percent of retested samples from 2007-09 had no trace of drugs"

Lengthy story today by the Indianapolis Star's Tim Evans on the continuing brohaha over the state Department of Toxicology and the veracity of its results. Some quotes:

But last year, after lawmakers voted to pull the lab from IU and make it a stand-alone state agency, members of the advisory panel appointed by the governor questioned the audit and its findings.

The major concern: None of the original samples had been retested.

"Until the re-analysis of the samples . . . can be completed, it is scientifically unclear if the result reported is incorrect," the three-member panel wrote in a July 22 report to the governor.

In the same report, [Retired Judge Linda Chezem, who chairs the Toxicology Department's advisory panel appointed by Gov. Mitch Daniels] recommended retesting hundreds of samples called into question by the audit. Members also said new test results "should be conveyed to the prosecutors, defense (attorneys) and public in understandable language. In other words, the explanations made should explain the significance of the findings and what they mean in lay language."

But, despite the panel's recommendation, the state denied The Star's request for the results provided to the lab last fall. Nor did it share them with the public or defense attorneys, leaving that up to prosecutors.

Eventually, the governor's office agreed to release the one-page summary to The Star.

When asked the basic question -- were the original results accurate? -- Chezem said she couldn't say.

"Maybe," she responded. "Maybe not."

Each case, Chezem explained, will have to be reviewed on its own merits to determine how significant the initial test result was to the criminal case.

Toxicology and legal experts told The Star there is another complicating factor: Drug compounds degrade over time.

A long side-bar story is headed "Wide range between old and new test results."

Posted by Marcia Oddi on Friday, March 30, 2012
Posted to Indiana Government

Thursday, March 29, 2012

Courts - Sadly, "The Justices now have before them a perfect illustration of the gross distortion that can instantly be made of recordings of their proceedings."

Here is a must-read post this evening from the esteemed Supreme Court advocate and founder of SCOTUS.blog, Tom Goldstein.

Posted by Marcia Oddi on Thursday, March 29, 2012
Posted to Courts in general

Ind. Law - What laws were affected by the 2012 General Assembly?

Just out in final form this week, here is one of the most valuable documents available to see if a law you are relying on was amended or repealed by the recent General Assembly.

It is available on the General Assembly's website. It is called the "2012 Table of Citations Affected" and this year it is 83 pages of tiny type long.

Say you wonder if IC 2-1-9-2 was affected in the session. Look down the list and you will see:

2-1-9-2.....Amended.....2.....02/22/2012.....6-2012

Unpacked, this means IC 2-1-9-2 was amended this year by SECTION 2 of PL 6-2012, and that the amendment took effect Feb. 22, 2012.

One item that always has been missing from this table is the enrolled act number. In this case, rather than "6-2012", the table more effectively could have shown "6-2012(1009)".

That would indicate that PL 6-2012 is the Public Law number for HEA 1009.

Because it is not shown in the table, the user must convert the "6-2012" to HEA 1009 by using the "2012 Public Law Number to Enrolled Act Number Table", available here. [Hopefully, this improvement will be made to the cite table at sometime in the future.]

And once you know the HEA number, you can look up the text of the enrolled act by using the search box here.

Posted by Marcia Oddi on Thursday, March 29, 2012
Posted to Indiana Law

Vacancy on Supreme Court 2012 - Four member Supreme Court hearing oral argument in New Albany this evening

Photo of Supreme Court hearing oral argument this evening in New Albany:

5:00 PM - Dalmas Anyango v. Rolls-Royce Corp., et al. (49A04-1011-CT-679) - Plaintiffs’ son was killed as a result of a helicopter crash in British Columbia. Plaintiffs filed a wrongful death action in the Marion Superior Court against the manufacturers of the helicopter, the engine, and the engine’s components. The trial court granted the defendants’ motion to dismiss on grounds of forum non conveniens, and the Court of Appeals affirmed. Anyango v. Rolls-Royce Corporation, 953 N.E.2d 1147 (Ind. Ct. App. 2011). The plaintiffs have petitioned the Supreme Court for transfer. [Note: The oral argument will be held at Grand Theatre, 138 East Market St., New Albany. No webcast will be available.]
As the photo shows, until Monday there are now only four justices.

Posted by Marcia Oddi on Thursday, March 29, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - "Tippecanoe Circuit Court closing for Judge Thompson memorial"

Sophia Voravong writes today in the Lafayette Journal Courier in a story that begins:

As the story goes, it was a regular occurrence for criminal defendants being escorted from Tippecanoe Circuit Court -- after being sentenced to prison -- to ask security bailiffs, "Who was that kind man?"

That man was Judge Warren B. Thompson, the longest serving judge in Tippecanoe County. Thompson, at 90 years old, died Saturday at the Indiana Veterans Home in West Lafayette.

In remembrance, current Circuit Court presiding Judge Don Daniel is shutting down his courtroom on Monday, the day of Thompson's memorial service.

"Judge Thompson was a great guy -- very kind, very wise and had a very calm, gentle temperament," Daniel said. "I can't imagine anyone who didn't like Judge 'T.' … To close down for one day in his honor is one very small thing I can do for him."

Posted by Marcia Oddi on Thursday, March 29, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 11 today (and 10 NFP)

For publication opinions today (11):

Mary E. Santelli, as Administrator of the Estate of James F. Santelli v. Abu M. Rahmatullah, Individually and d/b/a Super 8 Motel

Brent Myers v. Jarod Coats

In the Matter of the Paternity of S.C.; K.C. v. C.C. and B.H.

Ziese & Sons Excavating, Inc. v. Boyer Construction Corporation and Boyer Construction Group Corporation

East Porter County School Corporation v. Gough, Inc., and Travelers Casualty and Surety Company of America

Delage Landen Financial Services, Inc. v. Community Mental Health Center, Inc.

Todd J. Crider v. State of Indiana

Ronyai Thompson v. State of Indiana

Buck Gleason v. State of Indiana

Shamir Chappell v. State of Indiana

Michael Woodson v. State of Indiana

NFP civil opinions today (3):

Frank R. Keeton v. Linda K. Keeton (NFP)

Angela D. Driskell, Bob R. Dehaven, and Blonnie V. Dehaven v. Old Republic National Title Insurance Company (NFP)

Standard Coating Service, Inc. v. Walsh Construction Company (NFP)

NFP criminal opinions today (7):

Danny R. Bailey v. State of Indiana (NFP)

Gerald C. Vickers v. State of Indiana (NFP)

Euranus Johnson v. State of Indiana (NFP)

Paul Rogers v. State of Indiana (NFP)

Kimberly A. Pieper v. State of Indiana (NFP)

Dejuan Parker v. State of Indiana (NFP)

Jesse Michael Villareal, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 29, 2012
Posted to Ind. App.Ct. Decisions

Law - Michigan "Teacher's aide says 'no access' to her Facebook; now legal battle with school "

Kelli Stopczynski of WSBT TV has the story and video report about a teacher's aid, Kimbery Hester:

According to a letter from the Cassopolis schools superintendent to the Lewis Cass Intermediate superintendent, a parent who was friends with Hester on Facebook notified the school about the picture.

Hester said her aide job was at Cassopolis public schools, but she was technically employed by Lewis-Cass Intermediate.

A few days later, Lewis Cass ISD superintendent Robert Colby called her into his office.

“He asked me three times if he could view my Facebook and I repeatedly said I was not OK with that,” Hester told WSBT.

In a letter to Hester from the Lewis Cass ISD Special Education Director, he wrote “…in the absence of you voluntarily granting Lewis Cass ISD administration access to you[r] Facebook page, we will assume the worst and act accordingly."

Hester keeps that letter in her stack of documents related to the case. She provided the letter to WSBT.

Hester said Colby put her on paid administrative leave and eventually suspended her.

“I have the right to privacy,” she told WSBT.

But University of Notre Dame labor law professor Barbara Frick said the school didn’t break any laws by asking for Hester’s Facebook information.

Right now there are no state or federal laws protecting social media privacy in the workplace, Frick said.

One reason she gave – websites such as Facebook are becoming so mainstream so quickly.

Meanwhile, Hester chose to take unpaid leave and collect workman's compensation while she fights a legal battle with the school district. But she's not backing down.

“I stand by it,” Hester said. “I did nothing wrong. And I would not, still to this day, let them in my Facebook. And I don’t think it’s OK for an employer to ask you.”

Posted by Marcia Oddi on Thursday, March 29, 2012
Posted to General Law Related

Ind. Courts - "Juror spends night on courthouse bench "

The Gary Post Tribune has the story today.

Posted by Marcia Oddi on Thursday, March 29, 2012
Posted to Indiana Courts

Vacancy on Supreme Court 2012 - Yet more on: Governor Daniels fails again to appoint a woman to the Supreme Court

Updating earlier ILB entries, the most recent being this from March 27th, the Muncie Star-Press weighs in today with an editorial titled "State's high court needs to represent all of us." A quote:

Critics might point out that Daniels' choice has a hint of cronyism. Massa served as general counsel to Daniels from 2006 to 2010, and he clerked for Shepard. We think critics are wrong because Massa has the chops to sit on the high court.

However, critics -- and count us among them -- are right to point out Daniels should have appointed a woman to the bench.

Why does that matter?

The answer lies in life experiences. A woman, or a minority, has a set of experiences no white male can ever have. And those experiences can have a profound effect on rendering decisions, especially in social issues such as family law. The makeup of the high court should at least reflect some gender diversity. Women make up half of the population and have a strong presence in the legal system, thus the issue of equality comes into play.

The editorial ends on a somewhat weak note:
If the opportunity arises again during Daniels' waning term to name a justice, he should strongly consider a female appointee. It's past time to bring an air of inclusiveness to the high court.
The ILB believes strongly that the Governor has been given, and failed to take advantage of, an historic opportunity to appoint TWO WOMEN to the Indiana Supreme Court, giving it a representation of 3 men and 2 women, and bringing it into the 21st Century, joining most of the other states' supreme courts.

Posted by Marcia Oddi on Thursday, March 29, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - More on: Bose McKinney reimburses Wayne Township $435,000 for handling of superintendent’s contract

Updating this ILB entry from yesterday, today's Indianapolis Star has an expanded story today by Alex Campbell and Tim Evans. The long story begins:

The Wayne Township Metropolitan School District is getting back some of the money it has shelled out in its battle with former Superintendent Terry Thompson.

But it's not coming from Thompson's millions of dollars in compensation that the district is suing him over. That's still to be decided in civil court.

It's coming from the law firm that advised the district and signed off on a series of contracts that resulted in Thompson's retirement settlement.

Bose McKinney & Evans has agreed to reimburse the district $435,000 for legal fees the district has spent since it began looking into why the ex-superintendent's salary and benefits ballooned to proportions board members said they never intended -- or conceived possible.

The settlement acknowledges no wrongdoing, and it mentions the firm's decades of "excellent legal services to the district."

"Wayne Township Schools have been a client of ours for a long, long time," said Alan S. Townsend, a partner at Bose McKinney & Evans. "They asked us for some help and support to offset the fees for investigating Thompson and prosecuting the lawsuit against him, and we agreed that was appropriate."

The settlement also absolves Bose McKinney of its role in what were later found to be "shocking" increases to Thompson's compensation, with his taxable income growing from $218,000 in 2003 to $2.2 million in 2010.

The district puts the blame squarely on Thompson, alleging -- in the civil suit the Bose McKinney settlement is helping to pay for -- that Thompson engaged in "an elaborate, complex and deceitful scheme" to make dramatic changes to his salary, benefits and retirement compensation.

Posted by Marcia Oddi on Thursday, March 29, 2012
Posted to Indiana Government

Wednesday, March 28, 2012

Ind. Law - "Garrett High School Senior Expelled For Tweeting Profanity"

Stephanie Parkinson has the March 23rd story at Indiana News Center. Some quotes:

[Austin Carroll, student] was expelled from Garrett High School after tweeting the F-word under his account. The school claims it was done from a school computer. Austin says he did it from home.

"If my account is on my own personal account, I don't think the school or anybody should be looking at it. Because it's my own personal stuff and it's none of their business,” said Carroll. * * *

The principal at Garrett High School claims their system tracks all the tweets on Twitter when a student logs in, meaning even if he did tweet it from home their system could have recognized it when he logged in again at school.

“I didn't post the thing at school but their computer is saying that I did post it, and I shouldn't be getting in trouble for stuff I did on my own time, on my own computer,” said Carroll.

ILB: One wonders if the school has subscribed to the twitter accounts of all its students ...

Above the Law has picked up the story and has a long entry. So has Gizmodo.

Posted by Marcia Oddi on Wednesday, March 28, 2012
Posted to Indiana Law

Ind. Decisions - "Pratt’s order should be required reading for law students as it states precisely how not to bring a lawsuit."

That is a quote from this long story today at Forbes.com, reported by Daniel Fisher, headed "Judge Slaps Motley Rice With Fees Over 'Frivolous' Lawsuit." Some quotes:

A federal judge in Indiana ordered lawyers including the prominent firm of Motley Rice to pay ITT Educational Services almost $400,000 in legal fees for pursuing a “frivolous” lawsuit the judge said was “based on a completely false story.”

The unusually harsh ruling — for a U.S. court, anyway — was designed to punish the lawyers for imposing millions of dollars in costs on ITT to defend a whistle-blower case where the plaintiff was a low-level employee who didn’t even think of filing suit until a lawyer contacted her. * * *

Pratt’s order should be required reading for law students as it states precisely how not to bring a lawsuit.

Here is the 32-page, 3/26/12 order by Judge Tanya Walton Pratt, that concludes:
For the reasons set forth above, ITT’s Motion for Attorney’s Fees and Sanctions is GRANTED with respect to attorney’s fees in the amount of $394,998.33, but DENIED with respect to sanctions against Leveski. The attorney’s fee award is issued jointly and severally against Timothy J. Matusheski individually, The Law Offices of Timothy J. Matusheski, the law firm of Plews Shadley Racher & Braun, and the law firm of Motley Rice LLP. Leveski’s related Motion to Strike or Disregard Declaration of ITT’s counsel is DENIED. The Court will issue a ruling on ITT’s Bill of Costs submission in due course.

Posted by Marcia Oddi on Wednesday, March 28, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In Juan M. Garrett v. State of Indiana, a 13-page opinion, Sr. Judge Barteau writes:

Juan M. Garrett appeals from the denial of his petition for post-conviction relief. He contends that his trial counsel and direct appeal counsel provided ineffective assistance by failing to challenge alleged violations of the prohibition against double jeopardy under the federal and state constitutions. We affirm. * * *

Because Garrett’s double jeopardy claims are without merit, he was not prejudiced by his trial and direct appeal attorneys’ failure to raise these claims. For these reasons, we are not left with a definite and firm conviction that the post-conviction court has made a mistake.

For the reasons stated above, we affirm the judgment of the post-conviction court.

In Janet Stewart v. Richmond Community Schools , a 6-page opinion, Sr. Judge Sharpnack writes:
Stewart argues that the evidence establishes that she is permanently and totally disabled and the Board’s decision must be reversed. The Board contends that Stewart has waived her claim of permanent and total disability because she did not appeal the Board’s determination that she was not permanently and totally disabled. * * *

Here, the Board’s reversal of the Member’s determination that Stewart was permanently and totally disabled is analogous to a ruling on temporary total disability as discussed in Cox. The parties fully argued the question of permanent and total disability, and nothing remained to be addressed after the Board issued its ruling. In fact, the Board’s determination that Stewart was not permanently and totally disabled is more definite than a determination of temporary total disability, because the status of temporary total disability is subject to further evidentiary developments. Furthermore, appellate review of the Board’s decision that Stewart was not permanently and totally disabled would have promoted judicial efficiency, because a reversal of the Board’s decision would have eliminated the need for further proceedings before the Member. Consequently, based on the holding in Cox, we conclude that the Board’s determination that Stewart was not permanently and totally disabled was a final award subject to appellate review. Stewart failed to seek appellate review of the Board’s determination. As a result, Stewart has waived any claim of error related to the Board’s decision that she is not permanently and totally disabled. The Board has presented a prima facie case in support of its claim of waiver and we therefore find no reversible error.

NFP civil opinions today (1):

C. Richard Marshall v. Kenneth W. Heider (NFP)

NFP criminal opinions today (2):

Teresa Yates v. State of Indiana (NFP)

Stuart Warren Lacy v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 28, 2012
Posted to Ind. Sup.Ct. Decisions

Vacancy on Supreme Court 2012 - Justice-Designee Mark S. Massa has two clerkship openings

See information here, listed at the end.

Posted by Marcia Oddi on Wednesday, March 28, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - Bose McKinney reimburses Wayne Township $435,000 for handling of superintendent’s contract

Reporter Alex Campbell has this post at StarWatch; also at IndyStar. A few quotes:

The law firm that represented Wayne Township’s school district during negotiations with ex-Superintendent Dr. Terry Thompson has agreed to pay back the district $435,000 in legal fees it received during the dispute that followed.

The contract became the subject of controversy when it was revealed that Dr. Thompson’s taxable income increased from $200,000 to more than $2 million during his final year at the district. He was also paid more than $1 million after his retirement.

The settlement between the school district and Bose McKinney & Evans, LLP, which has represented the district for decades, was obtained by The Star after a public records request. It mentions lawyer Jon M. Bailey by name, but acknowledges no wrongdoing.

“Bose shall reimburse the District $435,000.00 for legal fees the District has incurred in investigating the Dispute and preparing the Lawsuit against Thompson (for, among other things, fraud and constructive fraud) (the “Reimbursement”),” the settlement says.

Posted by Marcia Oddi on Wednesday, March 28, 2012
Posted to Indiana Government

Vacancy on the Supreme Court 2012 - Supreme Court of 4 sitting today; Massa to take oath April 2nd

The Supreme Court just convened for oral argument in J.M. v. Review Board. With the retirement of Chief Justice Shepard last week, only four justices are sitting. Acting Chief Justice Dickson has the center seat. No reference was made to the change by CJ Dickson in his brief opening of the session.

Meanwhile the Court's public information office announced this morning:

Mark Massa, formerly the Executive Director of the Indiana Criminal Justice Institute, will take the oath of office as Indiana’s 107th Justice on April 2, 2012. The private oath will be administered by former Chief Justice Randall T. Shepard, who is now a Senior Judge for the Indiana Court of Appeals. A public, formal swearing-in ceremony will be scheduled for a later date. * * *

Acting Chief Justice Dickson explained that work at the state’s highest court continues during the transition period, “The four members of the current Supreme Court will hear cases, hand down opinions and decide administrative matters related to the courts this week. We are working with Justice-Designate Massa to make next week’s transition to the Court smooth. We are also discussing a date for a formal swearing-in ceremony.”

Posted by Marcia Oddi on Wednesday, March 28, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Law - "“It was a legislated termination of the lawsuit”

Recall these three ILB entries from earlier this year:

Ind. Law - More on "Bill seeks to resolve local car dealer’s suit"

The first ILB entry on HB 1171 and quoted a Niki Kelly Fort Wayne Journal Gazette story. The ILB lead-in: "Back in the day, Senator Bob Garton would have disallowed these bills ..." Next came a Feb. 1st ILB entry...

Posted in The Indiana Law Blog on February 27, 2012 06:51 AM

Ind. Law - "Lawmakers should seriously consider whether they should put themselves in the position of settling disputes involving a very limited number of Hoosiers by passing statewide laws that affect everyone"

So opined the Fort Wayne Journal Gazette today in an editorial headed "Lawmakers as arbiters." Some quotes:The Indiana General Assembly is advancing two bills directly related to local issues that demonstrate the power of the legislature to correct bad policies...

Posted in The Indiana Law Blog on February 1, 2012 10:15 AM

Ind. Law - "Bill seeks to resolve local car dealer’s suit"

Back in the day, Senator Bob Garton would have disallowed these bills ... Niki Kelly reports today in the Fort Wayne Journal Gazette in a story that begins:The Indiana legislature is stepping in to decide a dispute between two Fort...

Posted in The Indiana Law Blog on January 27, 2012 11:12 AM

Today Rebecca S. Green reports in the Fort Wayne Journal Gazette, under the headline "Lawsuit over auto dealer’s relocation dismissed," that:
While Allen Circuit Court Judge Tom Felts dismissed a lawsuit between two local car dealers with a stroke of a pen, recently passed legislation killed the court case weeks before.

The case, filed last September by DeHaven Chevrolet, was an attempt to stop a plan by General Motors Co. to endorse Kelley Chevrolet’s relocation from East State Boulevard to the intersection of Lima Road and Interstate 69.

Under an Indiana law enacted in 2001, dealerships were generally prohibited from moving to within six miles of another existing dealership of the same brand. If a dealership wanted to do so, existing dealerships of the same brand could file a legal challenge and ask a judge to weigh in.

When it heard of Kelley’s plans, DeHaven officials did just that, asking Felts to review the matter. * * *

But during this year’s legislative session, state lawmakers led by Rep. Phil GiaQuinta, D-Fort Wayne, changed the law. The new law shrinks the cushion from six miles to four, in a move that effectively ended DeHaven’s lawsuit.

On Friday, DeHaven asked Felts to dismiss the lawsuit. Monday, Felts granted the request.

The new law doesn’t take effect until January, but DeHaven couldn’t justify continuing with the lawsuit given the costs, Manges said.

“It was a legislated termination of the lawsuit,” he said, adding that it would have been too expensive to go all the way through the case and then challenge the new law on the grounds that it was designed to benefit only one specific party.

Posted by Marcia Oddi on Wednesday, March 28, 2012
Posted to Indiana Law

Ind. Decisions - "Court sides with New Albany historic group: Bradford Realty should have sought approval for siding"

The March 22nd COA opinion in New Albany Historic Preservation Commission and City of New Albany v. Bradford Realty, Inc. (ILB entry here) is the subject of a long story today by Daniel Suddeath of the New Albany News & Tribune. Some quotes:

NEW ALBANY — The Indiana Court of Appeals reversed a ruling that had backed Bradford Realty’s claims that the New Albany Historic Preservation Commission didn’t properly notify land owners of zoning restrictions.

Last year, Special Judge Daniel Moore ruled in favor of Bradford Realty owner Ron Craig, who was denied a Certificate of Appropriateness request by the HPC after he installed vinyl siding on the building without approval in 2008.

Bradford Realty sits in the Downtown Historic District at its 222 E. Fourth St. location. The business has occupied the spot since 1966. The HPC is charged with overseeing building upgrades and the materials used for repairs as a result of the declaration of the district in 2002.

Craig didn’t notify the HPC of the repairs before work commenced, and his use of vinyl siding on the 1910 structure was later rejected by the board. He was ordered to remove the siding from the building, and a court case ensued.

Though a notice of the district was published in The Tribune in 2002, Moore ruled in July that the city and HPC failed to properly notify land owners in the boundary of the change in zoning.

Moore also ruled Craig was not required to seek approval from the HPC before installing the siding.

The HPC did not send information regarding the district and laws pertaining to property in the zone directly to land owners after the boundary was declared.

But in a 2-1 decision released Thursday, the court of appeals ruled Bradford Realty wasn’t entitled to direct notice of the historic district, and that Craig was required to obtain a Certificate of Appropriateness before replacing original wood siding with vinyl siding.

In her supporting opinion, Judge Patricia Riley wrote the enacting of the historic district was prospective and general in nature and did not fall under due process requirements of the 14th Amendment.

“The ordinance purports to regulate only future conduct to be consistent with the provisions of the historic preservation ordinance,” Riley wrote in regards to the city legislation establishing the historic district.

“It does not impose fines for past behavior or require past improvements to be modified in any way. It is generally and equally applicable to all property owners within its boundaries.”

More from the story:
[Judge] Friedlander disagreed with the majority ruling that the siding installation met the city ordinance definition of a “conspicuous change,” which requires a Certificate of Appropriateness.

Judging by before and after photographs of the building, Friedlander said the change in siding wasn’t striking.

“These photos reflect that the exterior walls of the structure had what appears to be weathered and somewhat faded white clapboard siding before the work was performed,” he wrote in his opinion.

“After the work was completed, it still appeared to have exterior walls made of white clapboard siding.”

The issue of financial hardships caused by upgrading historic structures with original features instead of newer and cheaper materials was also addressed in the ruling.

The appeals court ruled that Craig was not entitled to a summary judgment based on his claim of inverse condemnation. Craig’s counsel had argued the city’s building restrictions inside historic districts imposed a financial hardship on land owners, and thus it was a form of the public taking private property by limiting the use of the lot through vigorous regulation.

For more, including particularly relevant background, see this Sept. 4, 2011 ILB entry, and its accompanying links.

Posted by Marcia Oddi on Wednesday, March 28, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - "Attorney wounded by gun-wielding intruder"

Here is the updated FWJG story (earlier version here), reported by Dominic Adams. Some quotes from the long story:

FORT WAYNE – A local attorney who confronted a man in his garage Tuesday morning is recovering after the intruder shot him and fled the attorney’s southwest Fort Wayne home.

Police said David J. Kuker, 45, was attacked when he found the man in the attached garage of his home, at 9409 White Shell Drive, about 8:13 a.m.

The man attacked Kuker, police said, and sprayed an unknown substance at him before shooting him in the shoulder at least once with a handgun. * * *

Kuker was taken to a hospital in serious condition.

Kuker is a partner at Faegre Baker Daniels and practices corporate law, focusing on mergers and acquisitions, private equity transactions, franchising issues, licensing, joint ventures and other complex transactions, the law firm said in a written statement.

Posted by Marcia Oddi on Wednesday, March 28, 2012
Posted to Indiana Law

Tuesday, March 27, 2012

Ind. Law - "Shooting victim identified as Fort Wayne lawyer"

The Fort Wayne Journal Gazette is reporting, in a story updated late this afternoon, that David Kuker, "office leader of Fort Wayne operations at the Faegre Baker Daniels law firm" was "attacked in garage, sprayed in face, police believe."

"Firm professionals were glad to hear that Dave is being treated at a local hospital, and his injuries are not life-threatening," the firm – a recent combination of Faegre & Benson and Baker & Daniels – said in a statement.

"Our thoughts and prayers continue to be with Dave and his family during this time of recovery," said Andrew Humphrey, managing partner at Faegre Baker Daniels, in the statement.

A more detailed sotry will be published tomorrow, says the FWJG.

Posted by Marcia Oddi on Tuesday, March 27, 2012
Posted to Indiana Law

Courts - Argument recap of Day #2 - the individual health insurance mandate

If you read nothing else on this, read this recap by Lyle Denniston of SCOTUSblog.

Posted by Marcia Oddi on Tuesday, March 27, 2012
Posted to Courts in general

Ind. Gov't. - "The Good News & Bad News About The End Of Franklin Township’s Busing Fees"

Interesting article by Kyle Stokes in State Impact. A quote:

The Indiana General Assembly outlawed Franklin Township’s busing fees this session, but also passed a law providing relief for districts who lost more than 20 percent of their property tax revenues. 45 districts that cumulatively lost $136.9 million to the caps are now eligible to restructure their debt under the new law.

But that’s where we get to the bad news ...

The bad news is that refinancing will cost taxpayers more, and that the township schools lost students.

Posted by Marcia Oddi on Tuesday, March 27, 2012
Posted to Indiana Government

Ind. Decisions - "Indy orders Interstate Towing to pay back $80,000 to car owners"

Here is the Indy News 6 story, it will be updated. Some quotes:

"[M]ore than 300 citizens whose cars were towed illegally will be made whole for their out-of-pocket losses."
On the videocast, it was also said that at least four people whose vehicles were towed and sold will be made whole.

Here is WTHR coverage.

Posted by Marcia Oddi on Tuesday, March 27, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Lorraine (Carpenter) Miller v. Karl Carpenter , a 20-page opinion, Judge Crone writes:

Lorraine (Carpenter) Miller (“Mother”) and Karl Carpenter (“Father”) were previously married and have two children in common. The divorce decree, which incorporated the parties’ settlement agreement, gave Mother sole legal custody and primary physical custody of the children. Father had parenting time for about 127 overnights per year, but took a parenting time credit of only ninety-eight overnights. About two years later, Father petitioned for joint legal custody, an increase in parenting time, and a decrease in child support. After a hearing, the trial court granted Father the requested relief. The decrease in child support was based on Mother’s increase in income, Mother’s decrease in child care costs, and an increase in the parenting time credit.

On appeal, Mother argues that the trial court erred by: (1) granting Father joint legal custody when the evidence did not support all the pertinent factors that must be considered; (2) modifying Father’s parenting time to such an extent that it was a de facto modification of physical custody; and (3) decreasing Father’s child support obligation when it should have imputed additional income to him and retained the agreed-upon parenting time credit of ninety-eight overnights. We agree with Mother that Father failed to show a substantial change in circumstances supporting a modification of legal custody and therefore reverse the trial court on that issue. However, we conclude that the trial court did not make a de facto modification of physical custody. To modify parenting time, only a showing of the children’s best interests was required, and the evidence supports the trial court’s conclusion that the modification was in the children’s best interest. We also conclude that the trial court did not abuse its discretion by concluding that evidence of imputed income was too speculative, that Father should receive a larger parenting time credit due to the increased number of overnights that he has with the children, and that his previous support obligation exceeds the Indiana Child Support Guidelines amount by more than 20%. Therefore, we affirm the trial court’s order as to the parenting time and child support issues.

In Earl Arnold, Sr. v. Rose Acre Farms, Inc., an 8-page opinion, Judge Darden concludes:
In short, Clemans is consistent with the rule that an employee is in the course of employment when he is traveling from one part of the employer‟s premises to another. It does not stand for the proposition that an employee may be eligible for benefits from injuries occurring when traveling a public road from his home to his employer‟s sole piece of property. Thus, Clemans does not support Arnold‟s position that he was injured “in the course of” employment as he traveled to work on a public road.

Arnold has failed to show that the Board erred in determining that he was not injured in the course of his employment with Rose Acres. Affirmed.

In Hane C. Harris v. State of Indiana, a 13-page opinion, Judge Crone writes:
Hane C. Harris repeatedly molested the young daughter of his girlfriend. A jury found Harris guilty of class A felony child molesting, class C felony child molesting, and class D felony child solicitation. The jury also found Harris to be a habitual offender. The trial court sentenced Harris to a total sentence of eighty-one years, with seventy-nine years executed. On appeal, Harris claims that he was denied his right to confrontation guaranteed by both our federal and state constitutions because the victim was permitted to testify at trial via closed-circuit television. Harris also contends that the trial court abused its discretion in imposing consecutive sentences. Finding no constitutional violations and further concluding that Harris has not established that the trial court abused its discretion in imposing consecutive sentences, we affirm. However, we remand for correction of the sentencing order regarding the habitual offender enhancement.
NFP civil opinions today (3):

Cynthia J. Biddle, as Personal Rep. of the Estate of Edgar E. Biddle, Deceased v. Joseph W. Laskowski and Barbara J. Laskowski (NFP)

Term. of Parent-Child Rel. of A.F.-M (Minor Child); A.M. (Mother) and B.S.M. (Father) v. The Indiana Dept. of Child Services (NFP)

Karyl Pogue v. Kim Rawlings and Deborah S. Rawlings (NFP)

NFP criminal opinions today (3):

Kevin K. Cotton v. State of Indiana (NFP)

Stacy I. Cottrill v. State of Indiana (NFP)

Steffin T. McFall v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 27, 2012
Posted to Ind. App.Ct. Decisions

Environment - Still more on: Indiana Antidegradation Standards and Implementation Procedures

Updating this ILB entry from yesterday, here is the March 9, 2012 letter US EPA Region 5 sent to IDEM re the new antidegradation standards and implementation procedures. Some quotes:

Adoption of antidegradation implementation procedures has been a priority for both the U.S. Environmental Protection Agency and the Indiana Department of Environmental Management (IDEM) since at least the 2003 - 2005 Environmental Performance Partnership agreement with IDEM. EPA has p31ticipated in the current rulemaking effort since its inception in 2008. IDEM has demonstrated commendable perseverance in getting to this point.

EPA has reviewed the proposed antidegradation rules that are before the IWPCB. As currently written the proposed rules are consistent with the requirements of the CW A, federal regulations, and EPA guidance on anti degradation and EPA has no further comments or recommendations. Should these rules be adopted by the IWPCB and submitted to EPA as required by section303(c) of the CWA, EPA sees no barriers to approval. Adoption of these rules by the IWPCB will address a long-standing deficiency in Indiana's water quality standards. EPA urges the IWPCB to adopt these rules as proposed.

Posted by Marcia Oddi on Tuesday, March 27, 2012
Posted to Environment

Vacancy on Supreme Court 2012 - More on: Governor Daniels fails again to appoint a woman to the Supreme Court

Updating this ILB entry from March 24th, the Fort Wayne Journal Gazette has published this editorial, titled "Losing ground." Some quotes:

Gov. Mitch Daniels’ appointment last week of Mark Massa as newest member of the state’s highest court is a reminder that the case for inclusiveness hasn’t been won. In two appointments, Daniels has chosen white males over eminently qualified women who would have brought perspective and life experience to the court that the governor’s appointees can’t offer.

As Hoosiers prepare to elect a new governor, it’s clear that candidates vying for the office need to be on record in their views regarding the appointment of women and minority members to positions of influence in the administration.

The last seven years have seen disappointing erosion in the diversity of top state policymakers. With the exception of the Department of Labor, Commission for Higher Education and Civil Rights Commission, the top administrators in state government are almost exclusively white and male. They might be excellent administrators, but their overrepresentation in a state where slightly more than half the residents are female and almost 20 percent are black or Hispanic casts Indiana as backward and resistant to change.

The Indiana State Department of Health, Department of Workforce Development, Department of Transportation, Department of Child Services, Family and Social Services Administration and most other state agencies are headed by white men.

Indiana remains one of only three states without a female on its highest court; the others are Idaho and Iowa. For Daniels to refer to the Indiana panel as “America’s best Supreme Court” is to suggest that a court without female representation is better than the courts of the 47 states benefiting from a woman’s perspective. Such a claim defies reason, given that the courts routinely weigh decisions shaped by gender differences – in employment, domestic violence, family law and more.

Posted by Marcia Oddi on Tuesday, March 27, 2012
Posted to Vacancy on Supreme Court 2012

Law - "A compilation of new and notable legal resources on animal rights and welfare."

A new and valuable resource, this compilation by Ken Strutin, posted by LLRX.com, titled "Animal Rights in the Human Legal System."

Posted by Marcia Oddi on Tuesday, March 27, 2012
Posted to General Law Related

Ind. Law - "Indiana has its own version of Florida's 'stand your ground' law: Ordinance was part of national push to strengthen self-defense laws"

Mary Beth Schneider reports today in the Indianapolis Star - here is a sample from the long story:

Indiana has a law similar to the "stand your ground" ordinance in Florida. That Florida law has so far been cited as the key reason that no charges have been filed against a 28-year-old neighborhood watch volunteer who on Feb. 26 shot a 17-year-old carrying only a cellphone, iced tea and a bag of Skittles candy.

As part of a national push to strengthen self-defense laws, Indiana tweaked its law in 2006, a year after Florida enacted its version.

Florida's law states that a person who is attacked in any place he or she has a right to be "has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm."

Indiana law already had said people are justified in using deadly force if a person reasonably believed it was necessary to prevent themselves or someone else from being seriously injured; to prevent a "forcible felony"; or to counter an attack or unlawful entry at your home or to prevent a hijacking.

Just in case that wasn't clear, lawmakers in 2006 added that people had "no duty to retreat" before using that deadly force.

Supporters of the law -- from Rep. Eric Koch, a conservative Republican from Bedford who was its chief sponsor, to Rep. Matt Pierce, a liberal Democrat from Bloomington who voted for it -- say nothing in Indiana's law should protect someone who isn't acting reasonably.

And, Pierce noted, lawmakers in 2006 did not touch one part of long-standing self-defense law in Indiana: You can't claim self-defense if you started the incident and didn't try to stop it.

Under Indiana's law, "a person is not justified in using force if . . . the person entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so."

Florida's law apparently doesn't spell out a similar restriction.

The ILB has a number of "stand your ground" entries, going back to 2006. The most recent is this post from March 22nd, headed ""The 23 States That Have Sweeping Self-Defense Laws Just Like Florida’s"."

Posted by Marcia Oddi on Tuesday, March 27, 2012
Posted to Indiana Law

Ind. Decisions - Yet more on: Supreme Court issues public reprimand to Carl J. Brizzi

Updating a long list of ILB entries, the most recent of which was posted March 20th, "Ind. Decisions - Yet more on: Supreme Court issues public reprimand to Carl J. Brizzi," Maureen Hayden reports today in the Logansport Pharos Tribune in a story headed "Supreme Court decision could mute prosecutors: Experts say reprimand might make other attorneys less likely to speak." The story begins:

INDIANAPOLIS — When former Greene County Prosecutor David Powell was still in office, it wasn't unusual for him to give pushy reporters a copy of the rules of conduct for attorneys that required him to curb his words and make sure the police did, too.

Prosecutors around the state may find themselves doing the same thing that Powell, now head of Indiana Prosecuting Attorneys Council, once did.

A mid-March decision by the Indiana Supreme Court to reprimand a former prosecutor for statements he made to the press about a high-profile murder case is giving other prosecutors pause.

Powell and other legal experts believe the court's reprimand of former Marion County Prosecutor Carl Brizzi also conveyed a message to other prosecutors around the state — They need to resist the temptation to make their case in the court of public opinion rather than the court of law.

The reprimand, said Powell, was a reminder “that prosecutors don't have a First Amendment right to say whatever they want to say.”

Brizzi was reprimanded for comments he made to the media about a 2006 mass murder case in which he described the evidence as “overwhelming” and said one of the defendants needed to get the “ultimate penalty” of death.

The comments, made after charges were filed against the defendants but before the case went to trial, violated the professional rules of conduct for prosecutors, the supreme court found.

Posted by Marcia Oddi on Tuesday, March 27, 2012
Posted to Ind. Sup.Ct. Decisions

Courts - Massive coverage of health care arguments via C-SPAN

Started at 7 am yesterday, watching right now the discussion of today's upcoming argument. Audio of today's historic Day 2 argument should be available as early as 1 pm today. Check out the resources here.

Posted by Marcia Oddi on Tuesday, March 27, 2012
Posted to Courts in general

Monday, March 26, 2012

Environment - More on: Indiana Antidegradation Standards and Implementation Procedures

Updating this ILB entry from March 14, 2012, which references the history of the "long, long awaited antidegradation standards," the Fort Wayne Journal Gazette on March 23rd ran an editorial applauding the new rules. Some quotes:

IDEM too infrequently gives Hoosiers reason to applaud the agency’s regulatory efforts. But the vote by the Indiana Water Pollution Control Board last week to adopt rules that will lower the amount of pollution that companies are allowed to release into state waterways was such an exceptional occasion.

The old rules set standardized limits on the pollution companies could release with no consideration of existing pollution in a waterway. The new rules ensure it will be considered. * * *

Getting the rules approved took months of public comment and review from the Water Pollution Control Board. The next step is a review from Indiana Attorney General Greg Zoeller’s office and Daniels’ signature.

The editorial also has this side-bar on the environmental board consolidation that was enacted by this General Assembly:
Hoosiers should know that this praiseworthy decision from the state [water] pollution control board is likely to be one of the board’s last. The General Assembly passed a bill during the recently concluded session that eliminates IDEM’s Water Pollution Control Board, Air Pollution Control Board and Solid Waste Management Boards. It replaces them with a consolidated environmental rules board. Gov. Mitch Daniels signed the bill into law.

The new anti-degradation rules are an excellent example why consolidation is a bad move. It took months [ILB - make that "many years"] of review of technical and scientific data for the board to reach its conclusion. The knowledge differs for each of the boards, and the expertise of those board members serving on the three separate boards will be lost with consolidation.

The consolidated board will have to depend heavily on opinions and information provided by IDEM staff, making the board little more than a perfunctory step in approving IDEM policies. It will no longer be a crucial check in the process to ensure the public’s interests are served. [ILB emphasis]

As the ILB wrote in the March 14th entry:
[T]he General Assembly passed a bill this session to abolish the Water Pollution Control Board, along with the Air and Waste Boards, and merge them into an a single "environmental board." The bill is pending before Gov. Daniels. Many people have commented that the complexities in the regulation of the three different media are too much to expect a single board, meeting occasionally, to address adequately, and that it will risk becoming simply a rubber stamp for the Department. The bill is HEA 1002.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Environment

Courts - SCOTUS releases audio and transcript of this morning's health care argument

See SCOTUSblog.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Courts in general

Environment - "North Carolina Rose Acre Farms clean-water debate goes to civil court"

The North Carolina News & Observer, in a story reported by Craig Jarvis, begins:

A dispute over whether North Carolina environmental regulators have the authority to restrict airborne emissions under federal clean-water laws has shifted to civil court.

The case, which is being watched by livestock operators and environmentalists across the country, involves a massive egg farm near a national wildlife refuge in northeastern North Carolina. Rose Acre Farms contends the state Division of Water Quality exceeded its authority and imposed impractical requirements on the operation.

Earlier this month, the Indiana-based company filed suit in Hyde County asking a judge to delay and review a January decision by a committee of the state Environmental Management Commission that went against the farm, which has more than 3 million hens housed in 12 high-rise hen houses.

The committee had reversed an administrative law judge’s ruling in October that airborne ammonia discharges can’t be regulated under the federal Clean Water Act. But the committee referred the case back to the Office of Administrative Hearings for a full hearing to determine if airborne emissions are ending up in the water.

Last week, two environmental groups filed a motion asking a superior court judge to allow them to be parties to the lawsuit, which was filed against the state Department of Environment and Natural Resources. Earlier, the N.C. Poultry Federation was involved in the case.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Environment

Ind. Gov't. - "Time for governor to stop denying DCS failures"

That was the heading to this editorial column yesterday by Jack Colwell in the South Bend Tribune. The long column concludes:

The Tribune and the Indianapolis Star have run stories about numerous cases of child abuse in Indiana. Tramelle was far from the only victim.

In response, the governor went to the DCS to cite statistics the department had compiled to show a heck of a job was being done and to denounce the newspapers for reporting troubles.

Daniels has in many ways been a good manager of state government, bringing efficiency in such places as the licenses branches, but he couldn't take criticism of the DCS, where he also was boasting of efficiency.

That call to the "hot line" and the response to it revealed less than efficiency in the plight of Tramelle and his siblings.

The DCS was aghast that Judge Peter J. Nemeth ruled in St. Joseph County that The Tribune could have a recording of that call. The department rushed to the Indiana Court of Appeals, obtaining a stay of Nemeth's order, thus blocking publication or website release of audio recordings of the call.

After all, that call wasn't helpful to the DCS image.

Attorney General Greg Zoeller, elected in his own right and aware of the Constitution, halted the censorship. As the official attorney for the state, he dismissed the DCS appeal, letting Nemeth's ruling stand and letting the public read about and hear the call.

Now, Indiana University School of Medicine professor Antoinette Laskey resigns as head of a state team investigating child deaths, saying the Daniels administration was making it impossible for her to do her job. She also questioned those statistics of a drop in child abuse deaths.

"There is no success story in being able to recategorize them as not the responsibility of the Department of Child Services," she said.

Doing a heck of a job?

Some DCS workers no doubt do a great job. But the department failed Tramelle and many other children.

Facts should be faced, not covered up with prior restraint or doctored statistics. As the Indianapolis Star editorialized: "Children's lives are at stake. There's no room for politics or ego here."

Tim Evans of the Indianapolis Star, in a StarWatch entry just posted, picks up the SBT column and quotes from and expands upon it.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending March 23, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Feb. 24, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, March 23, 2012. It is one page (and 9 cases) long.

No transfers were granted last week.

The original grant of transfer was VACATED in one case for which transfer was granted Feb. 2, 2012, Indiana-Kentucky Electric Corporation v. Save the Valley, et al., and in which oral argument was heard March 15th, 2012. The vote was 3-2. See this March 24th ILB entry for details.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Lavern Ceaser v. State of Indiana, a 17-page opinion, Judge Vaidik writes:

Lavern Ceaser appeals her conviction for Class D felony battery on her daughter, M.R. Ceaser contends that the trial court erred by allowing the State to present evidence regarding her prior conviction for battering M.R. Ceaser also contends that the trial court erred by denying her motion to dismiss and that evidence at trial was insufficient to rebut her claim of parental privilege. We conclude that Ceaser’s prior conviction for battering the same child in a manner similar to the underlying incident was admissible under the intent and lack of accident or mistake exceptions to Indiana Evidence Rule 404(b). We further conclude that the trial court properly denied Ceaser’s motion to dismiss and the evidence at trial was sufficient to rebut her claim of parental privilege. We affirm.
NFP civil opinions today (0):

NFP criminal opinions today (2):

Adrien Newson v. State of Indiana (NFP)

Lawrence Roper v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Ind. App.Ct. Decisions

Courts - Follow health care argument at WSJ

The WSJ is liveblogging the arguments:

The Supreme Court, starting Monday, is hearing three days of arguments on the constitutionality of President Obama’s health overhaul. A ruling is expected in late June. On Monday, the justices hear arguments on whether to shelve the entire case until 2014, when most of the law takes effect.

The Journal has several reporters at the court, and they will rotate in and out of the courtroom to post updates here.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Courts in general

Vacancy on Supreme Court 2012 - Region native takes helm as Indiana's acting chief justice

A great story in the NWI Times today, reported by Dan Carden. Some quotes:

INDIANAPOLIS | A Northwest Indiana native is the top judge in the state.

Supreme Court Justice Brent Dickson, who was born in Gary and grew up in Hobart, became acting chief justice of Indiana on Saturday upon the retirement of Chief Justice Randall Shepard.

He will lead the state's high court and manage Indiana's court system until a new chief justice is selected later this year from among the Supreme Court's five justices by the Indiana Judicial Nominating Commission.

Dickson, 70, has served on the Supreme Court since Jan. 6, 1986, and as the longest-serving justice automatically became acting chief after Shepard's departure. Dickson was a general practice attorney in Lafayette when then-Republican Gov. Robert Orr appointed him the 100th justice on the high court.

Orr said he selected Dickson because "he is an outstanding attorney and legal scholar with a good dose of common sense and practical judgment."

By all accounts, Dickson has lived up to Orr's expectations. Among his many written rulings for the court, Dickson authored the decisions in two cases involving the town of St. John that led to a complete restructuring of Indiana's property tax system.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - A report on the ongoing State/IBM trial

First news since March 20th on the ongoing IBM/State trial before Marion Superior Court Judge David Dreyer, who apparently is working on the case 24/7. From the Indianapolis Star:

A Marion County judge has dismissed some of the state's claims against IBM in dueling lawsuits over a canceled welfare-modernization contract.

The state has claimed, among other things, that IBM had provided false information throughout the project.

Marion Superior Court Judge David Dreyer signed an order Sunday dismissing 17 of the state's claims that addressed those issues.

"Specifically, the state has introduced no credible evidence that IBM knowingly or intentionally made any false statements to the state or any other governmental entity," according to Dreyer's order.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Ind. Trial Ct. Decisions

Courts - Historic Health Care arguments this week before the SCOTUS

Too big a topic for the ILB, but SCOTUSblog's Lyle Denniston has done great prep work with his four introductory articles:

See also the perspective offered by Denniston in this essay from Sunday, headed "Taking its place in history…."

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Courts in general

Catch-up: What did you miss over the weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?

But first, didn't you check the ILB a lot last week? Then please make the move to supporting the ILB.

From Sunday, March 25, 2012:

From Saturday, March 24, 2012:

From Friday afternoon, March 23, 2012:

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/26/12):

Wednesday, March 28th

Thursday, March 29th

Next week's oral arguments before the Supreme Court (week of 4/2/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/26/12):

Thursday, March 29th

Next week's oral arguments before the Court of Appeals (week of 4/2/12):

Monday, April 2nd

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, March 26, 2012
Posted to Upcoming Oral Arguments

Sunday, March 25, 2012

Ind. Courts - "Prosecutor Hermann worries complaint could discourage attorneys from part-time post: Rule could restrict lawyers' work in private practices"

Mark Wilson reports today in the Evansville Courier & Press in a long story that begins:

A misconduct complaint filed with the Disciplinary Commission of the Indiana Supreme Court against attorney Bob Zoss, who worked for nearly 36 years as a deputy Vanderburgh County prosecutor, contends he should not have, in his private practice, represented a man in a divorce action, who had criminal charges pending against him.

The complaint states that Zoss had a conflict of interest and should have recused himself from representing in a 2010 divorce case a husband who was charged with a misdemeanor domestic battery charge in which the victim was the man's wife.

The complaint revolves around the interpretation of a professional conduct rule, and attorney Scott Danks, who is representing Zoss before the Disciplinary Commission, said Zoss has chosen to fight it because he doesn't believe he did anything wrong.

"My concern," [Vanderburgh County Prosecutor Nicholas Hermann] said, "is they are trying to limit or completely eliminate part-time prosecutors."

However, a state official said the complaint underscores that elected prosecutors lack the authority to manage their part-time deputies' conflicts of interest by limiting the scope of their work.

At issue are the circumstances governing when a part-time prosecutor or deputy prosecutor can represent a private client.

"It causes quite a problem for part-time deputies out there to be representing people who are charged with crimes," said Seth Pruden, an attorney with the Disciplinary Commission of the Indiana Supreme Court.

Posted by Marcia Oddi on Sunday, March 25, 2012
Posted to Indiana Courts

Vacancy on Supreme Court 2012 - "He's no longer chief justice, but don't call Shepard retired"

A good story today by Eric Bradner of the Evansville Courier & Press. There is much interesting in the long story. Here is the section on memorable cases:

Two politically-charged cases — one in 1988 and another this year — occurred during Shepard's tenure.

The first, in 1988, concerned whether Evan Bayh, who was then running for secretary of state, was qualified as a resident of Indiana, and therefore was eligible to be a candidate.

The second, a 2012 case, involved former Indiana Secretary of State Charlie White, who was removed from office upon being convicted of six felony charges.

In both cases, the Supreme Court agreed the two men were qualified to appear on the ballot. Shepard said he is proud of those decisions.

"These two are good bookends on the success — not just my own, but obviously all five of us — have achieved in moments where a lot of people are interested," he said.

Another of the highest-profile cases the court tackled under Shepard's watch was the Sue Ann Lawrance right-to-die case, in 1991.

The family of the brain-damaged woman decided to halt artificial feedings four years after she first became unconscious following a fall from her wheelchair. The court ruled, 4-1, with Shepard writing the opinion, that her parents did not need to go to court to get permission to end her feeding.

In that case, Shepard said, "a lot of soul-searching was called for."

Globally, the court's most significant case was that of Paula Cooper, who had been sentenced to death by electrocution for, when she was 15 years old, killing 78-year-old Ruth Pelke.

The court ultimately decided that she was too young to be sentenced to capital punishment, and reduced her sentence to 60 years in prison.

"That was an international case. There were people here from the Vatican. It was quite a sight to see," Shepard said.

Posted by Marcia Oddi on Sunday, March 25, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - "Sharing concerns about children: Cases raise questions about how police are alerted to possible abuse"

Another lengthy story this Sunday from the South Bend Tribune about the "recent closings of local call centers in favor of centralizing all child abuse and neglect calls through Indianapolis." The story, reported by Virginia Black, begins:

A judge declared a former Muncie high school principal guilty Friday in failing to immediately report a 2010 rape allegation in his school, calling into question the definitions of "child abuse"and "immediately."

Meanwhile, a South Bend Police search last week of Department of Child Services intake reports — routinely forwarded to police agencies — turned up nothing referring to a caller’s pleas last spring to stop ongoing abuse at a South Bend home, where a 10-year-old was found dead from abuse six months later.

And in both cases, DCS employees who answered the calls apparently never contacted law enforcement, instead relying on the callers to the 800-800-5556 hotline to also alert police.

The Muncie reference is to the case last blogged in this Nov. 19, 2011 entry headed "Former Principal Wants Failure To Report Case Tossed: Penn State Case, Paterno Cited In Court Brief."

Posted by Marcia Oddi on Sunday, March 25, 2012
Posted to Indiana Government

Ind. Law - SEA 1, "Restoring the Castle Doctrine"

A thoughtful editorial today in the Fort Wayne Journal Gazette on SEA 1. Take a look.

Posted by Marcia Oddi on Sunday, March 25, 2012
Posted to Indiana Law

Ind. Courts - "Widow waits years for action in malpractice lawsuit"

Sophia Voravong's long story in the Sunday Lafayette Journal Courier looks at the length of time involved in bringing a medical malpractice claim in Indiana. Some quotes:

[Michelle] Martinu filed her lawsuit and a claim with Indiana's Medical Review Panel in January 2010, nine months after her husband died.

Because of Indiana's medical malpractice act, Michelle Martinu cannot name the doctors or their affiliated hospital. The law requires the case go before a medical review panel of three doctors selected by the parties.

Until the panel makes its advisory decision, the lawsuit can't go forward, either. For now, Michelle Martinu's lawsuit is filed against anonymous doctor No. 1, doctor No. 2, doctor No. 3 and anonymous health system.

Their names, however, are included in other court documents -- among them, a request by Michelle Martinu's attorney, Tina Bell, to order one of the doctors to provide a recorded deposition -- and through the medical review panel's online records. * * *

For now, other details of Frank Martinu's death likely won't be known until the medical review panel issues an opinion and the case goes to trial.

The length of time it's taking doesn't surprise Lafayette attorney Jeff Cooke. He's not involved in Michelle Martinu's lawsuit, but his firm has handled a number of wrongful death claims. He described Indiana's medical malpractice act, and the practice of suing a doctor, as long-winded and confusing.

"It is frustrating squared," Cooke said. "It was designed, in my opinion, to be that way ... so that the plaintiffs run out of gas, run out of money, run out of patience.

"The system is orchestrated to be frustrating, lingering, never-ending for people who are not lawyers and doctors."

Here is another issue addressed in the story:
Superior Court 1 Judge Randy Williams has issued an emergency gag order that required, in part, a user of YouTube to remove a documentary-style video of Frank Martinu's story as told by Michelle Martinu, her teenage son and others. Twelve days after the video was posted, it had been viewed 722 times, according to the defendants' attorneys. The gag order was requested by the defendants' attorneys to prevent tainting prospective jurors.

The judge agreed.

"Today's technological innovations require merely a telephone for an individual to obtain information on a variety of topics, including those posted on YouTube, Facebook and whatever new system will be introduced next week," Williams wrote on March 5.

One of the doctor's attorneys requested the gag order, based on concerns that it could jeopardize defendants' rights to a fair trial.

"The video presents plaintiff's rendition of the events of March 21, 2009, in a skewed and prejudicial manner. The video is labeled as a 'tragedy.' It includes only select pieces of information from the hospital records, and it takes that information out of context of the entire course of events that occurred on March 21, 2009," the attorneys, Feldlake and Elizabeth Schuerman, wrote.

The main allegation of Michelle Martinu's lawsuit is that doctors did not act quickly enough to recognize obvious signs of Frank Martinu's massive blood loss and that, once transfusions were started, it was too late.

Posted by Marcia Oddi on Sunday, March 25, 2012
Posted to Indiana Courts

Law - "Are child porn laws unfair? Viewers' sentences can be worse than molesters'"

This very long story by Andrew Wolfson anchors the Louisville Courier Journal's focus today on child porn. The story begins:

Born with spina bifida and dependent on a wheelchair, 26-year-old Jon Michael Fox cannot hurt a soul, his mother and lawyer say.

But after being caught with more than 1,200 images of child pornography on his computer, some of which he traded with others, Fox was sentenced in 2009 by a federal judge in Louisville to 14 years in prison — with no option of early release.

The Justice Department says that long sentences for offenders such as Fox — even if they have had no contact with children — are vital in slowing the demand for child porn and the abuse of children exploited in making it.

But Fox’s attorney, Frank Campisano Jr., called Fox’s sentence “ludicrous,” saying his client “never could be a threat to anyone, including a child.” Fox’s mother, Kathy, said, “He could have killed someone and got less.”

The facts appear to back her up.

In 2010, about 1,800 offenders sentenced nationally for child pornography crimes in federal courts received longer average sentences than those convicted of arson, robbery, assault or even manslaughter, according to the U.S. Sentencing Commission.

In Kentucky’s Western District, the average federal sentence for child pornography was twice that for drug trafficking. Offenders released from prison also are required to submit to longer periods of supervision — sometimes for the rest of their life.

Related stories: "By the Numbers: Child pornography vs. other federal crimes;" "Do viewers of child porn also molest?" and "Prosecutions of child porn producers are rare."

Posted by Marcia Oddi on Sunday, March 25, 2012
Posted to General Law Related

Ind. Decisions - "New trial ordered for woman convicted of Hammond homicide"

Friday's COA opinion, authored by Judge Kirsch, in Athena Y. Collins v. State of Indiana (NFP) was the subject of a story by Ruth Ann Krause in the March 24th Gary Post-Tribune. Some quotes:

The court found that the trial court judge, Lake Superior Court Judge Clarence Murray, abused his discretion by allowing deputy prosecutors Jamise Perkins and Evelyn Scott to admit evidence they said showed that Collins had been charged with and convicted of misdemeanor battery involving the use of a knife in 1979 against a co-worker in Omaha, Neb. The court wrote that the Nebraska incident did not involve Collins’ husband, had no relation to Collins’ murder case and was highly prejudicial.

The court also agreed with Collins’ appellate attorney, Marce Gonzalez Jr., that prosecutors had engaged in misconduct by making a statement during closing arguments that the court found disparaged Collins’ defense attorney, Catherine Lake.

In her closing argument, Lake recounted the testimony of Hammond police Detective Sgt. Stephen Guernsey and her cross-examination of him regarding the 1979 incident. Lake argued there was no conviction. One of the prosecutors objected, saying that Lake knew “very well that her client was convicted,” the opinion states. Lake countered that she wasn’t aware of the 1979 incident until it was presented in court and noted that the document said the prosecutor declined the case.

“In our view, there is no question that the prosecutor’s disparaging comments about defense counsel constituted prosecutorial misconduct. We remind counsel that disparaging opposing counsel seldom brings about good results,” the court wrote. The court noted there was nothing in the record to establish that Collins was convicted of the charge or that Lake was aware of a conviction. The court also found that the state’s comment “impermissibly put that information before the jury during its argument.”

Posted by Marcia Oddi on Sunday, March 25, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "The End of an Era in Indiana: The Wigwam, a nearly 9,000-seat field house in Anderson, Ind., closed in 2011, making this the first season in 50 years that the Anderson High School Indians did not play their home games there."

Ostensibly, this is a sports story, but is it also a story about the demise of Anderson, Indiana. The NY Times today begins the story by Craig Fehrman on the front-page of its sports section, and then continues it to fill a full inside page. A few quotes:

Despite Indiana’s having 12 of the nation’s 13 largest high school gyms, the demise of a signature basketball site illustrates the passing of the high school sport’s heyday in the Hoosier state. * * *

Anderson’s population peaked in the 1970s when General Motors employed one in three adult residents, but today, abandoned factories are common. * * *

Anderson, 40 miles northeast of Indianapolis, got its start in manufacturing when natural gas was discovered there in the 1890s. The city grew rapidly, adding downtown businesses, a four-story brick high school and, in 1925, the first Wigwam, which held 4,800 fans. Anderson’s center also included tightly packed subdivisions and the First Baptist Church, which had one of the state’s most vibrant youth groups and needed to use the Wigwam’s parking lot on Sundays.

Anderson’s population peaked at 70,000 in the 1970s, when General Motors operated more than 20 factories and employed one of every three Anderson adults. The city’s three high schools — Anderson, Madison Heights and Highland — each topped 2,000 in enrollment, and all three of their boys’ basketball teams regularly ranked in the state’s top 10.

After graduation, students knew they could land a factory job, work for 30 years, then retire with a pension and benefits. During the 1970s energy crisis, Anderson made headlines for its 22 percent unemployment rate. The city that had once staggered its factory shifts now staggered registration times at its unemployment office.

Those jobs never came back, and G.M. left for good in 1999. Today, one cannot travel far in Anderson without spotting an abandoned factory or a shuttered school, and their closings are related.

“We have empty houses all over,” says Roger Hensley, a volunteer at the local historical society. “The young people, those who could afford to, have left.”

The First Baptist Church has moved to a smaller building on the edge of town. The area around the Wigwam is blighted by closed businesses and boarded-up homes.

Posted by Marcia Oddi on Sunday, March 25, 2012
Posted to Indiana Government

Environment - More on "Rural Bloomfield company specializing in 'meth lab' clean ups"

Updating this ILB entry from Feb. 10, 2012, which quoted from a lengthy story by Nick Schneider, Greene County Daily World, looking at a "rural Bloomfield company -- Crisis Cleaning -- [that] specializes in meth lab clean-ups in a five-state area," today's Indianapolis Star has an equally long story by Dana Hunsinger Benbow, looking at the business of meth lab damage clean-up, and quoting, among others, "Donetta Held, CEO of Crisis Cleaning, a Bloomfield company." Some quotes from today's story:

Welcome to the world of meth lab cleanup companies, a growing and profitable business, especially in Indiana, where certain pockets of the state are hotbeds for labs.

The state, which ranks in the top five for meth production, has 22 companies certified by the Indiana Department of Environmental Management to decontaminate properties.

And business is, um, booming.

"It's such a growing epidemic," said Donetta Held, CEO of Crisis Cleaning, a Bloomfield company that has been hired to clean up the Crawfordsville home. "It's everywhere -- from a high-dollar house in Downtown Indianapolis to these rural counties."

Held's company has already done 25 meth cleanups this year, in less than three months. That's already half as many as the company completed last year.

"Some people say there is not as much meth or meth has gone down," Held said. "Um, no. I don't see that at all."

Neither do police, which have seen a steady growth in meth lab seizures in the past three years. In 2009, law enforcement shut down 1,364 labs. In 2010, 1,395 labs were seized. Last year, that number climbed to 1,437.

That has meant lots of revenue for meth cleanup companies. Most companies charge about $2 to $3 per square foot to do a cleanup. Depending on the size of the property and how many rooms need to be decontaminated, the cost can range from $5,000 to $10,000. * * *

While specially trained law enforcement officers come in to conduct the initial cleanup, it's up to the property owner to make sure the residual effects are removed.

Meth remains are toxic and can make inhabitants sick with serious respiratory illnesses if not cleaned. There can be continued headaches. It's especially dangerous for children. Even dogs have been known to get sick. [ILB - of course dogs will get sick too!]

That's why, once a meth lab is found, property owners are required to show proof the site is free of contaminants before anyone is allowed to move back in. * * *

Once the property is down to acceptable levels, cleanup companies must give the property owner a "Certificate of Illegal Drug Cleanup." It also must be given to the local health department, IDEM and the Indiana State Department of Health.

This document certifies to any new occupants that the meth lab contamination in the property has been cleaned up and it's now safe to occupy.

Posted by Marcia Oddi on Sunday, March 25, 2012
Posted to

Saturday, March 24, 2012

Courts - "Courtroom trials, the stuff of television dramas, almost never take place"

Updating this ILB entry from March 22nd, headed "Supreme Court expands rights in plea bargains," about the SCOTUS's decisions this past week in Lafler and Frye, Erica Goode of the NY Times analyzes the impact of the rulings in a story headed "Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals." Some quotes:

For years, the nation’s highest court has devoted the majority of its criminal justice efforts to ensuring that defendants get a fair day in court and a fair sentence once a trial is concluded. But in two decisions on Wednesday, the Supreme Court tacitly acknowledged that it has been enforcing an image of the system that is very different from the real, workaday world inhabited by prosecutors and defense lawyers across the country.

In that world, 97 percent of federal cases and 94 percent of state cases end in plea bargains, with defendants pleading guilty in exchange for a lesser sentence. Courtroom trials, the stuff of television dramas, almost never take place. * * *

The decisions, endorsed by a 5-to-4 majority and written by Justice Anthony M. Kennedy, affirm a defendant’s right under the Sixth Amendment to have the assistance of an effective lawyer during pretrial negotiations. Both of the cases before the court involved defendants who failed to take plea bargains after receiving bad legal advice.

Taken together, the rulings greatly expand the supervisory reach of judges to include plea bargaining, a process that has traditionally been conducted informally and with so little oversight that one law professor, Stephanos Bibas of the University of Pennsylvania, has compared it to a Turkish bazaar.

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Courts in general

Vacancy on Supreme Court 2012 - Governor Daniels fails again to appoint a woman to the Supreme Court

Updating this ILB entry from yesterday, here are some news reports of the Governor's appointment yesterday. I've added a few comments, in large part because most Indiana attorneys will be reluctant to do so publicly. Also because I am now in my eighth decade and my hopes of seeing a woman on the Indiana Supreme Court in my lifetime are fading. (See also my observations in this Feb. 21, 2012 entry).

Charles Wilson of the AP has a story headed "Mark Massa named to Indiana Supreme Court," here in the FWJG.

Mary Beth Schneider and Chris Sikich report in the Indianapolis Star; the story is headed "Daniels picks Massa for Indiana Supreme Court: 51-year-old had served as governor's lawyer." Some quotes:

Massa is Daniels' second Supreme Court pick, and the second time he has opted not to appoint a woman to a court that has none among its five justices. He chose Massa over two other finalists, Jane Seigel, executive director of the Indiana Judicial Center, and Appeals Court Judge Cale Bradford. In 2010, Daniels chose then-Boone Circuit Judge Steven David for the Supreme Court over attorney Karl Mulvaney and Marion Superior Court Judge Robyn Moberly.

Indiana is one of three states, along with Iowa and Idaho, with all men on its highest court.

One woman has served on the Indiana Supreme Court: Myra Selby, who was appointed in 1995 by Bayh but resigned in 1999 to return to private practice.

Selby could not be reached Friday for comment, but others expressed some dismay that Indiana's court remains an all-male province.

"It's not about whether Mark Massa is qualified," said Frances Lee Watson, a law professor at the Indiana University Robert H. McKinney School of Law. "The governor had a chance to pick a justice twice, and he has chosen not to place a woman on the court."

The Supreme Court, she said, should reflect a diverse group of people and viewpoints. Beyond that, it's a matter of equality, she said.

"I think it's a good idea to have women in positions of leadership, equally with men," Watson said. "Given that there is a strong presence of women in the legal profession, it doesn't seem equal that all of the justices are men."

Daniels said he would "like nothing more" than to appoint a woman to the Supreme Court. He appointed the first woman to be the Indiana Tax Court judge, Martha B. Wentworth, in 2010, and one of his two appeals court choices was Elaine Brown.

But, he said, his top criteria were merit, experience, principles and temperament. Gender, he said, would be a tie-breaker, "but it cannot trump those other criteria, in my opinion. We simply have to seek out the very, very, very best person available, and I'm convinced I have."

Daniels put some of the burden on women, saying many who might have been strong candidates did not apply for the court. The Indiana State Bar Association said there are 3,519 women practicing law in Indiana, compared with 8,384 men. According to the Indiana Judicial Center, there are 71 female judges in Indiana, with 265 men.

Unlike U.S. Supreme Court picks, where a president can search out a nominee, Indiana's governor must choose from one of three finalists selected by the Indiana Judicial Nominating Commission from a list of applicants.

Some ILB observations: I second Prof. Watson's comments - the Governor has had two opportunities to appoint a woman to the Court, and has elected not to do so.

Yesterday a reporter was taking an online poll, asking readers whether it was a problem that there are no women on the Court. I responded: "Of course not, women are LUCKY to have men making all the decisions for them!" She came back with "I know! I myself feel incredibly honored." And it is not only that 30% of Indiana's attorneys are women. More than half of Indiana's citizens are women. The Supreme Court's actions impact all its citizens.

The Governor trumpets his appointments of Judge Wentworth and Judge Brown as mid-level appellate court judges, as if that balanced his failure to add women members to the Supreme Court. Fortunately, our appellate level courts already contain a number of women judges, thanks to appointments made by earlier governors. In another story, he touts his selection of Becky Skillman to run for lieutenant governor, and another woman, Connie Lawson, as Indiana secretary of state. Of course those two appointments could be countered by the names of any number of male appointees.

The Star story continues: "Daniels put some of the burden on women, saying many who might have been strong candidates did not apply for the court." To the contrary, many strong women candidates applied both in 2010 and this year. Further, the Governor has not, during his nearly eight years in office, publicly urged women to apply for the Court. This would have helped particularly after the 2010 selection process, where many of Indiana's "best and brightest" Republican women judges and attorneys submitted applications -- 19 of the 34. Many people thought then that Governor Daniels surely would act to remedy the situation of an all-male Indiana Supreme Court. But he didn't. The number of women applicants decreased markedly this time.

Finally, the Star story ends with the statement that the Governor is limited to the three names sent to him by the Judicial Nominating Commission. Ann DeLaney responded to that last evening on Indiana Week in Review by exclaiming, "Nonsense, the Governor is the JNC!" And she is right, he does have a good deal of influence. The Governor names the three citizen members of the JNC, the bar elects the three lawyer members, and the Chief Justice serves as the chair. It is unlikely that any Governor would be unable to make his wishes known, and indeed to exercise his will, throughout the process ...

Eric Bradner reports in the Evansville Courier & Press:

Immediately after the appointment, Daniels was criticized for failing to choose a woman. Indiana has only had one female justice in the state’s history – Myra Selby, who was appointed by Gov. Evan Bayh in 1995 but returned to private practice in 1999.

Senate Minority Leader Vi Simpson, D-Ellettsville, took to Twitter to call it “unfortunate.” Ann DeLaney, a former Indiana Democratic Party chairwoman, complained about it on the Indiana Week in Review television show on WFYI-Indianapolis.

Daniels noted that he chose a woman, Becky Skillman, to run for lieutenant governor, and another woman, Connie Lawson, as Indiana secretary of state. He also named a woman to the Indiana Court of Appeals and named a female tax judge.

“I’d like nothing more, of course,” Daniels said. “We’d like to see more balance.” But, he said, he will only use gender as a tie-breaker.

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Vacancy on Supreme Court 2012

Stage Collapse - "Indiana judge orders Sugarland to testify in April"

Updating the March 21st post, headed "Sugarland won't answer Indiana State Fair stage collapse questions until May," Carrie Ritchie reported last evening in the Indianapolis Star:

A Marion County judge has ordered Sugarland to schedule a time to give its take on what happened just before the stage rigging collapsed at its Aug. 13 concert at the Indiana State Fair. * * *

The band must provide dates between April 1 and 15 when band member Jennifer Nettles can respond to allegations that the band refused to postpone the concert despite threats of bad weather, Judge Theodore Sosin ruled during a hearing this morning. Full depositions of band members and representatives of its ownership company, Lucky Star Inc., can be scheduled later.

The band and its ownership company, Lucky Star Inc., must also provide information regarding its insurance policy.

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Stage Collapse

Courts - "A Bizarre Outcome on Generic Drugs"

Updating this post from yesterday, which quoted a March 20th NYT story headed ""Generic Drugs Proving Resistant to Damage Suits." ," the Times today has this editorial. It begins:

Dozens of suits against drug companies have been dismissed in federal and state courts because of a decision by the Supreme Court last year that makes it virtually impossible to sue generic manufacturers for failing to provide adequate warning of a prescription drug’s dangers. This outrageous denial of a patient’s right to recover fair damages makes it imperative that Congress or the Food and Drug Administration fashion a remedy.

This situation is particularly bizarre because patients using the brand-name drug can sue when those using the generic form of the drug cannot ...

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Courts in general

Ind. Courts - "Daniels says the current state system for appointing judges works in Indiana, but calls the Marion County slating system for judicial selection a travesty"

See IndyPolitics, it has the 5 minute audio.

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Indiana Courts | Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - One take on Daniels' Supreme Court selections

"Indiana Supreme Court To Remain All Male After Daniels Names Massa" is the heading to this post by Gary Welsh of Advance Indiana.

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - Associational standing challenge fails, Court rules transfer improvidently granted

On March 15th the Supreme Court heard oral argument in Indiana-Kentucky Electric Corp., et al. v. Save the Valley, Inc., et al. At that time the summary posted on the Court site read:

Indiana-Kentucky Electric Corporation (IKEC) filed a petition for judicial review asking the trial court to rule that certain citizens’ groups lacked the authority to obtain administrative review of a permit-renewal decision, but the trial court dismissed the petition. The Court of Appeals affirmed, relying on the law-of-the-case doctrine and noting that an earlier appeal held that these citizens’ group had associational standing to represent their members aggrieved by the permit renewal. Indiana-Kentucky Electric Corporation v. Save The Valley, Inc., 953 N.E.2d 511 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
On March 22nd, the Supreme Court issued this (just posted), one-page, 3-2 Order, written by Acting Chief Justice Dickson:
By order dated February 7, 2012, the Court granted transfer of jurisdiction in this appeal. After further review, including oral argument, the Court has determined that transfer of jurisdiction was improvidently granted. Accordingly, the order granting transfer of jurisdiction is VACATED. The transfer petition filed by the Appellant is DENIED. The Court of Appeals opinion, Indiana-Kentucky Elec. Corp. v. Save the Valley, Inc., 953 N.E.2d 511 (Ind. Ct. App. 2011), is no longer vacated and is REINSTATED. This appeal is at an end. See Ind. Appellate Rule 58(B). * * *

All Justices concur, except Shepard, C.J., and David, J., who vote to grant transfer.

Here is the now-reinstated Court of Appeals opinion in Indiana-Kentucky Elec. Corp. v. Save the Valley, Inc.

Posted by Marcia Oddi on Saturday, March 24, 2012
Posted to Environment | Ind. Sup.Ct. Decisions

Friday, March 23, 2012

Vacancy on Supreme Court 2012 - Massa appointed [Updated]

Echoing his statement from 2010, Daniels says today:


Correction: It turns out MBS meant "tie-breaker," but "toe-breaker" is certainly more dramatic.

And it reminds me of the old story about Ginger Rogers, to equal Fred Astaire she had to do perform while dancing backwards in high heels ...

Posted by Marcia Oddi on Friday, March 23, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Gov. Daniels names ...

... Mark Massa to fill the seat vacated today by the retirement from the Court of Chief Justice Shepard.

Next up: Expect an announcement from the Judicial Nominating Commission, now chaired by Acting CJ Dickson, that it will be accepting applicants from those members of the Supreme Court who are interested in being considered by the Commission for the position of Chief Justice, a 5-year term.

Posted by Marcia Oddi on Friday, March 23, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

William H. Lane v. Connie S. Lane (NFP)

NFP criminal opinions today (2):

Schwala Royal v. State of Indiana (NFP)

Athena Y. Collins v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 23, 2012
Posted to Ind. App.Ct. Decisions

Vacancy on Supreme Court 2012 - Announcement coming today [Updated]

Governor Mitch Daniels will announce his selection for a vacancy on the Indiana Supreme Court created by the retirement of Chief Justice Randall Shepard, today at 2:15 p.m.

As I wrote on March 4th about the three names sent to the Governor:

Two (Mark Massa and Jane Seigel) have backgrounds that appear evenly matched, albeit with very different life experiences. Neither of the two has been a judge, but both currently work in state government, one for the Governor, one for the Supreme Court. Both have local government experience, one as a deputy prosecutor, the other as counsel for the local governments. One of the two is a woman. The third candidate this year (Cale Bradford) has been a trial judge and currently is a judge on the Court of Appeals, a position to which he was appointed four years ago by Governor Daniels.
This will be Governor's Daniels' second opportunity to appoint a woman to the Indiana Supreme Court. In 2010 he appointed Boone County Circuit Court Judge Steven David to the Supreme Court.

[More] Here is a brief story just posted at IndyStar by Mary Beth Williams.

Posted by Marcia Oddi on Friday, March 23, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - "Governor appoints director for Department of Toxicology"

Just released from Governor's office:

INDIANAPOLIS (March 23, 2012) – Governor Mitch Daniels has appointed a longtime Indiana State Police laboratory commander as the director of the Indiana Department of Toxicology. Major Justus (Ed) Littlejohn, Jr., of Fort Wayne, the Indiana State Police Laboratory Division commander, will be the first director of the department following the legislatively mandated transfer of operations from the Indiana University School of Medicine to a standalone state agency in 2011.

Littlejohn has served in the Indiana State Police (ISP) for 38 years, including 34 years in various laboratory and forensic roles. He has been the commander of the laboratory division since 2004, responsible for the overall operation and forensic response.

Among his new responsibilities, which will begin April 2, Littlejohn will manage the overall operation of the Department of Toxicology, overseeing the deployment of breath test instruments and the training and certification of law enforcement officials for their proper use, and leading the department through an accreditation request and review process.

Littlejohn successfully led the ISP laboratory division during a pre-International Organization for Standardization (ISO) audit in 2007 and preparation for ISO accreditation this year. He also led the department’s move to a digital archive system and assisted with doubling the analytical staff of the laboratory division.

Littlejohn began his ISP career as a road patrol officer in 1974 and became a polygraph examiner in 1978. He became laboratory manager of the ISP Fort Wayne Regional Laboratory in 1983 and served in that capacity for 10 years before joining the state laboratory division in Indianapolis in 1993. He earned his bachelor’s and master’s degrees at Purdue University in Fort Wayne.

Posted by Marcia Oddi on Friday, March 23, 2012
Posted to Indiana Government

Ind. Decisoins - Two opinions from the Supreme Court, so far today

In Troy R. Smith v. State of Indiana, a 6-page, 5-0 opinion, Justice Rucker writes:

The trial court revoked the probation of Troy R. Smith for failure to pay weekly child support as a condition of his probation. On appeal Smith argued the State failed to carry its burden of proof that his failure to pay was reckless, knowing, or intentional. We disagree and affirm the judgment of the trial court. * * *

It is the probationer’s burden “to show facts related to the inability to pay and indicating sufficient bona fide efforts to pay so as to persuade the trial court that further imprisonment should not be ordered.” Runyon, 939 N.E.2d at 617. Here Smith failed to carry his burden. The trial court did not abuse its discretion in revoking Smith’s probation. We affirm the judgment of the trial court.

In Brice Webb v. State of Indiana, a 10-page, 3-2 opinion, Justice Rucker writes:
Charged with murder in the shooting death of his girlfriend, Brice Webb requested a jury instruction on the lesser offense of reckless homicide. The trial court denied the request and Webb was convicted as charged. We granted transfer to address the propriety of the trial court’s ruling. * * *

The evidence in this case is certainly sufficient to support the jury’s guilty verdict of murder. However, the evidence also produced a serious evidentiary dispute concerning whether Webb acted knowingly or recklessly. And depending on how the jury might have weighed and credited all of this evidence, it very well could have returned with a conviction of reckless homicide. The trial court’s refusal to instruct the jury on the lesser-included offense of reckless homicide was reversible error.

Conclusion. We reverse Webb’s conviction and remand this cause for a new trial.

Dickson and Sullivan, JJ., concur.
David, J., dissents with separate opinion in which Shepard, C.J., joins. [J. David's dissent concludes] The defendant chose to testify. He did not have to and certainly if he had not, no adverse inference could have been drawn. In fact, had he not testified, he most certainly would have been entitled to the lesser included instruction. However, he chose to testify. That was his choice. His testimony was that he was not there. He should not be allowed to make a mockery out of the state’s burden of proof and argue to a jury he was not there, but if he was, he didn’t have the necessary intent. For these reasons, I respectfully dissent.

Posted by Marcia Oddi on Friday, March 23, 2012
Posted to Ind. Sup.Ct. Decisions

Courts - Human gene patents; generic drugs

Two unrelated stories, but both medical law based.

From Alison Frankel's On the Case (Thomson Reuters) column, "Could SCOTUS Prometheus ruling be the end of human gene patents?" A few quotes:

The Mayo Clinic and its lawyers at Mayer Brown weren't the only ones to welcome the U.S. Supreme Court's ruling Tuesday that Prometheus Laboratories cannot patent a medical test that relies on correlations between drug dosages and treatment. Lawyers at the American Civil Liberties Union see the high court's unanimous decision as a good omen for their own case challenging the patentability of human genes.

The plaintiffs in both cases have relied on the same argument: that the patents in dispute are naturally occurring phenomena that do not qualify for patent protection. The Supreme Court bought that argument wholeheartedly in Mayo's case. * * *

Last summer, a three-judge panel of the Federal Circuit Court of Appeals issued a fractured decision upholding Myriad's right to patent isolated human genes -- BRCA1 and BRCA2 -- that are linked to most inherited forms of breast and ovarian cancers. (All three judges wrote separate opinions; two of them backed Myriad.) The ACLU has filed a petition asking the Supreme Court to review the Federal Circuit's decision, but the court has not yet decided whether to grant cert.

For background, see this ILB entry from August 1, 2011.

From the front page of the March 20th NY Times, a story reported by Katie Thomas, headed "Generic Drugs Proving Resistant to Damage Suits." Some quotes from the long story:

Across the country, dozens of lawsuits against generic pharmaceutical companies are being dismissed because of a Supreme Court decision last year that said the companies did not have control over what their labels said and therefore could not be sued for failing to alert patients about the risks of taking their drugs.

Now, what once seemed like a trivial detail — whether to take a generic or brand-name drug — has become the deciding factor in whether a patient can seek legal recourse from a drug company.

“Your pharmacists aren’t telling you, hey, when we fill this with your generic, you are giving up all of your legal remedies,” said Michael Johnson, a lawyer who represented Gladys Mensing, one of the patients who sued generic drug companies in last year’s Supreme Court case, Pliva v. Mensing. “You have a disparate impact between one class of people and another.”

The Supreme Court ruling affects potentially millions of people: nearly 80 percent of prescriptions in the United States are filled by a generic, and most states permit pharmacists to dispense a generic in place of a brand name. More than 40 judges have dismissed cases against generic manufacturers since the Supreme Court ruled last June, including some who dismissed dozens of cases consolidated under one judge.

The story includes several useful links. In addition, the lead example in the story is:
... a deli worker at a supermarket in Indiana, [who] had to have her hand amputated after an emergency room nurse injected her with an anti-nausea drug, causing gangrene. She sued the manufacturer named in the hospital’s records for failing to warn about the risks of injecting it. Her case was quietly thrown out of court last fall.

Posted by Marcia Oddi on Friday, March 23, 2012
Posted to Courts in general

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

Wednesday, March 21, 2012

Environment - "Supreme Court rules unanimously against EPA in enforcement case"

Updating this entry from earlier today on the SCOTUS decision today in Sackett v. EPA, Lawrence Hurley of Greenwire has this long story today on the opinion. It begins:

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.

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to Environment

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.

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.

[More] Here is the AP coverage from Ken Kusmer.

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to Stage Collapse

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.

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to Indiana Courts

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.]

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to Ind. Sup.Ct. Decisions

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.

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to Ind. Trial Ct. Decisions

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.

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to Courts in general

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. * * *

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.

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:
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. * * *

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.

In Rodney Nicholson v. State of Indiana, a 9-page, 4-1 opinion, Justice David writes:
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.

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to Ind. Sup.Ct. Decisions

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
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.
[More] This article by Matt Gertz in Media Matters points out:
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.

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to General Law Related

Environment - Decision in "SCOTUS takes up property rights dispute"

Updating earlier ILB entries, here is today's opinion in Sackett v. EPA. And here is Lyle Denniston's opinion recap at SCOTUSblog. A few quotes:

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.

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to Environment

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. * * *

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.

In Michael J. Griffin v. State of Indiana , a 13-page opinion, Judge Bailey writes:
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. * * *

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.

In Kristine Bunch v. State of Indiana , a 63-page, 2-1 opinion, Chief Judge Robb writes:
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. * * *

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.

ILB: For background on the Bunch ("arson science on trial") case, start with this ILB entry and this entry, both from July 13, 2011.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Jody Brewster v. State of Indiana (NFP)

John W. Kimbrough v. State of Indiana (NFP) - see 3/22/12 story in NWI Times headed "Appeals court reduces Gary child molester's prison term by 40 years."

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to Ind. App.Ct. Decisions

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.

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Audit Reveals Questionable Practices In Small Claims Court: Funds Possibly Misappropriated, Auditors Say "

WRTV6's Kara Kenney reported last evening. Here are a few quotes. This is also a video:

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 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.”

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.

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to Indiana Courts

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 022
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

More from today's story:
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.

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to Indiana Government

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:

“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.

The ILB predicted yesterday that the Gov. would allow the bill to take effect without his signature...

Posted by Marcia Oddi on Wednesday, March 21, 2012
Posted to Indiana Law

Tuesday, March 20, 2012

Ind. Courts - "Indiana wraps up its case in IBM lawsuit"

Updating this ILB entry from March 9th, Carrie Ritchie reports this evening in the Indianapolis Star in a story that begins:

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.

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Indiana Courts

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]

Updating this ILB entry from March 17th, here in case you missed it is WISH TV Jim Shella's post from March 19th, headed "BMV employee fired in IYG license plate flap." A quote:

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.

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.

[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:
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.

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Indiana Government

Ind. Decisions - Supreme Court answers question in federal “rails-to-trails” litigation

See Doug Masson's post on the Supreme Court decision today in Henry L. Howard, et al. v. United States. He concludes:

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.

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Ind. Sup.Ct. Decisions

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.

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.

Just now the Governor's office sent out the following:
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.

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Indiana Law

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.

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Ind. (7th Cir.) Decisions

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. * * *

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.

In Harold J. Klinker v. First Merchants Bank, N.A., a 10-page, 5-0 opinion, Justice Sullivan writes:
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. * * *

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.

In Henry L. Howard, et al. v. United States, a 7-page, 4-1 opinion, Justice Dickson writes:
The United States Court of Federal Claims has certified for our resolution the following question:
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.

In Hannah Lakes v. Grange Mutual Casualty Company, a 14-page, 5-0 opinion, Justice Sullivan writes:
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.

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Ind. Sup.Ct. Decisions

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.

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Indiana Decisions

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.

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.

In Luke Keys Carson v. State of Indiana , a 26-page opinion, Judge Crone writes:
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.

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.

Curtis A. Bethea v. State of Indiana is a 35-page, 2-1, three opinion decision, with the court denying post-conviction relief.

NFP civil opinions today (5):

B.M. v. M.M. and M.R.M., b/n/f M.M. (NFP)

Thomas Eaton, et al. v. City of Gary, et al. (NFP)

Rochelle M. Gibler v. Discover Bank (NFP)

R.S. v. Review Board of the Indiana Dept. of Workforce Development and M.B. (NFP)

Earl R. England and Mary L. England v. Rob E. Hurford and Jennifer M. Hurford (NFP)

NFP criminal opinions today (7):

Mitchell Preston v. State of Indiana (NFP)

Jonathan R. Stephens v. State of Indiana (NFP)

Kevin Ferguson v. State of Indiana (NFP)

James N. Hamilton v. State of Indiana (NFP)

Clarence A. Martin, Jr. v. State of Indiana (NFP)

Malinda Diaz v. State of Indiana (NFP)

William Singleton v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Ind. App.Ct. Decisions

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.

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Ind. Sup.Ct. Decisions

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.

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.

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."

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Indiana Courts

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.

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Courts in general

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.”

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to General Law Related

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.

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Indiana Government

Ind. Decisions - Yet more on: Supreme Court issues public reprimand to Carl J. Brizzi

Updating this ILB entry from March 18th, the Fort Wayne Journal Gazette has this editorial item today from Tracy Warner:

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.

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Ind. Sup.Ct. Decisions

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.

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to General Law Related

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.

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.

[More] See also the editorial in today's Star, headed "Justice's retirement is our loss."

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Vacancy on Supreme Court 2012

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.

Posted by Marcia Oddi on Tuesday, March 20, 2012
Posted to Stage Collapse

Monday, March 19, 2012

Vacancy on Supreme Court 2012 - Retirement ceremony details

Now available from the Court, a webpage with detailed information about CJ Shepard's retirement ceremony, including photographs and remarks.

Posted by Marcia Oddi on Monday, March 19, 2012
Posted to Vacancy on Supreme Court 2012

Stage Collapse - "Trauma Doctors Weigh In On Stage Collapse Injuries"

Here is a WRTV 6 story, last updated March 16th:

INDIANAPOLIS -- The city’s top trauma centers are offering new insights on stage rigging collapses similar to the one that happened at the Indiana State Fair in August 2011.

Indiana doctors said the collapses are causing injuries that can be prevented, and they’re hoping to reduce mass casualty incidents at outdoor concerts.

Dr. Gerardo Gomez is in charge of the trauma center at Wishard Memorial Hospital. Since the State Fair, he and his colleagues have reviewed outdoor stage disasters and have concluded that Indiana’s incident was the most lethal on record.

“It shouldn’t have happened, when you have a collapse that was preventable,” Gomez said.

The study found that most injuries from stage accidents occurred above the waist, RTV6's Rafael Sanchez reported.

Dr. Jeffrey Browne with the Indiana University School of Medicine said the concern is that a massive number of those injuries could delay treatment because doctors specialized to handle specific types of emergencies could be outnumbered and overwhelmed.

“Typically, mass casualty injuries are distributed among the body equally,” Browne said.

Doctors said they hope their studies will spark changes at outdoor concert events.

The study calls for established evacuation procedures and command centers that include weather, engineering, police and health professionals to make coordinated decisions in the reassessment of outdoor stage construction.

“If we do a better job of preparing the structures to resist these winds, the chances of this happening again will be minimized,” Gomez said.

The results of the IU study are expected to be released to the public in the summer.

See also the accompanying video.

Posted by Marcia Oddi on Monday, March 19, 2012
Posted to Stage Collapse

Ind. Decisions - Using Wikipedia as a source in your brief?

A Court of Appeals opinion today, Robert Hardin v. Carlotta Hardin, includes this footnote on p. 2:

We note that in Wife's Statement of the Issues, she criticized Husband's Statement of the Issues in a short argumentative paragraph before she stated her own version of the issues for our review. We advise counsel to reserve argument for the Argument section of the appellate brief. Further, as part of Wife's criticism, she explained some terminology by citing to Wikipedia, an online encyclopedia. See Appellee's Brief at 1 n.1. It is acknowledged on Wikipedia's home page that it is an encyclopedia that “anyone can edit.” http://en.wikipedia.org/wiki/Main_Page (last visited Feb. 16, 2012). Thus, we would caution against relying on Wikipedia as a source in an appellate brief, especially when there are other, more demonstrably reliable sources also available online.
See this Jan. 29, 2007 NYT article by Noam Cohen, headed "Courts Turn to Wikipedia, but Selectively," quoting Judge Posner:
“Wikipedia is a terrific resource,” said Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago. “Partly because it so convenient, it often has been updated recently and is very accurate.” But, he added: “It wouldn’t be right to use it in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.”

Judge Posner recently cited a Wikipedia article on Andrew Golota, whom he called the “world’s most colorful boxer,” about a drug case involving the fighter’s former trainer, a tangent with no connection to the issues before his court. He did so despite his own experience with Wikipedia, which included an erroneous mention of Ann Coulter, a conservative lightning rod, as being a former clerk of his.

“I have never met Ann Coulter,” he said, but added that he was heartened that the friend who spotted the error could fix it then and there.

That friend was Cass R. Sunstein, currently a visiting professor at Harvard Law School. “I love Wikipedia, but I don’t think it is yet time to cite it in judicial decisions,” he said, adding that “it doesn’t have quality control” He said he feared that “if judges use Wikipedia you might introduce opportunistic editing” to create articles that could influence the outcome of cases.

He added, however, that he could not fault a use like Judge Posner’s, which “seems too innocuous for a basis of criticism.”

Many citations by judges, often in footnotes, are like Judge Posner’s, beside the main judicial point, appear intended to show how hip and contemporary the judge is, reflecting Professor Sunstein’s suspicion, “that law clerks are using Wikipedia a great deal.”

Prof. Sunstein, BTW, has moved on and is now a member of the Obama administration.

Posted by Marcia Oddi on Monday, March 19, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: CJ Shepard approves judicial branch raises

Updating this ILB entry from March 16th, here is the Order approving the statutory adjustment, filed March 16, 2012.

Posted by Marcia Oddi on Monday, March 19, 2012
Posted to Indiana Courts

Ind. Decisions - More on: Upcoming oral arguments this week and next

Lafayette attorney Doug Masson writes:

As if to underscore Judge Baker's concerns, the J.M. v. Review Board case to which you linked is actually not the one the Indiana Supreme Court is hearing on March 28. This was actually a case decided by the Court of Appeals on September 19, 2011.

http://indianalawblog.com/archives/2011/09/ind_decisions_c_1626.html

ILB: Here is the ILB list of upcoming oral arguments posted earlier today. It includes this entry for March 28th:
9:45 AM - J.M. v. Review Board (93S02-1203-EX-138) - J.M. attempted to make up missed work time after having been told not to do so by his manager. J.M.’s employment was terminated and J.M. applied for unemployment benefits. The Review Board reversed an ALJ’s award of benefits, determining that the employer had just cause to discharge J.M. from his employment. The Court of Appeals reversed the Review Board. J.M. v. Review Board, No. 93A02-1102-EX-146 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: This was a Dec. 29, 2011 NFP opinion. In a concurring opinion Judge Baker writes: "I concur in the result reached by the majority but write separately to express my disagreement with the majority’s use of initials."

As you can see, the ILB erroneously linked to another J.M. v. Review Board, from Dec. 29, 2011, rather than the one correctly identified by Doug Masson, from Sept. 19, 2011.

Posted by Marcia Oddi on Monday, March 19, 2012
Posted to Upcoming Oral Arguments

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

For publication opinions today (2):

In In Re the Paternity of C.S.: M.R. (Mother) v. R.S. (Father), a 13-page opinion, Judge Darden concludes:

The trial court did not abuse its discretion in finding that C.S.’s physical and mental/academic maturation constituted a substantial change warranting modification of custody. The trial court did not misinterpret Indiana Code section 31-17-2-8 in the process of drawing conclusions from its findings. Finally, the trial court did not err in relying on the updated custody evaluation. Affirmed.
In Robert Hardin v. Carlotta Hardin , a 13-page opinion, Chief Judge Robb writes:
We conclude the trial court used an incorrect coverture fraction and thereby clearly erred in dividing Husband's pension. We also conclude the trial court did not commit clear error in awarding the entire survivor's benefit to Wife, but that the trial court failed to order Wife to pay the monthly cost of the survivor's benefit she will receive. Finally, we conclude Husband invited any error regarding consideration of tax consequences, and as a result he has waived this issue on appeal. Accordingly, we reverse and remand as to the trial court's division of Husband's pension, including the cost to Wife of the survivor's benefit, and affirm as to all other issues.

NFP civil opinions today (1):

Mark Wiley v. Midwest Poultry Services, LP (NFP)

NFP criminal opinions today (4):

Charles L. Eckard v. State of Indiana (NFP)

Juan Emerson v. State of Indiana (NFP)

Kelly Scott Thomas v. State of Indiana (NFP)

T.N.S. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 19, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one, so far, today

In Jimmie E. Jones, Jr. v. State of Indiana, a 3-page, 5-0 opinion, Justice Sullivan writes:

We agree with Judge Bailey’s analysis and the result reached by the Court of Appeals. Having previously granted transfer, we now adopt the court’s opinion in full.

Posted by Marcia Oddi on Monday, March 19, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending March 16, 2012 [Updated]

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Feb. 24, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, March 16, 2012. It is three pages (and 27 cases) long.

Five transfers were granted last week, and at least two of them are bigees:

Posted by Marcia Oddi on Monday, March 19, 2012
Posted to Indiana Transfer Lists

Vacancy on Supreme Court 2012 - Ceremony for retiring CJ Shepard today at 1:30 PM

Watch live at 1:30 PM via Windows Media.

Some quotes from the news release:

Governor Mitch Daniels and American Bar Association President, William T. (Bill) Robinson will honor the public service career of retiring Indiana Supreme Court Chief Justice Randall T. Shepard on March 19, 2012. The event will allow state officials, the legal community and the public to show appreciation for Chief Justice Shepard’s twenty-seven years of service to Indiana.

The ceremony will also include remarks from Justice Brent E. Dickson, state and local bar associations and a former law clerk. Shepard’s wife, Amy W. MacDonell, and their daughter, Mattie Shepard will also be present at the ceremony.

Posted by Marcia Oddi on Monday, March 19, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - "Gov Daniels says he may name a new Supreme Court justice to replace retiring CJ Shepard this week"

So tweets Mary Beth Schneider of the Indianapolis Star.

That makes sense, as the Chief's last day is this Friday.

Posted by Marcia Oddi on Monday, March 19, 2012
Posted to Vacancy on Supreme Court 2012

Catch-up: What did you miss over the weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?

But first, didn't you check the ILB a lot last week? Then please make the move to supporting the ILB.

From Sunday, March 18, 2012:

From Saturday, March 17, 2012:

From late Friday afternoon, March 16, 2012:

Posted by Marcia Oddi on Monday, March 19, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/19/12):

Thursday, March 22nd

Next week's oral arguments before the Supreme Court (week of 3/26/12):

Wednesday, March 28th

Thursday, March 29th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/19/12):

Next week's oral arguments before the Court of Appeals (week of 3/26/12):

Thursday, March 29th

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, March 19, 2012
Posted to Upcoming Oral Arguments

Sunday, March 18, 2012

Ind. Gov't. - "Critics raise questions about Rockport power plant"

Maybe the headline should have said "Questions continue about proposed Rockport power plant." Here is a very long list of earlier ILB entries, many of the from the Evansville Courier & Press. Here is one of the earliest in the ILB, from March 6, 2009, by then-C&P reporter Bryan Corbin. By March 15, 2009, an editorial in the C&P urged caution.

Here is John Russell's lengthy story today in the Indianapolis Star, giving a history of the project and the concerns. A quote:

But now, after early successes, the project is running into criticism or uncertainty at nearly every turn. Even the governor, who says he still supports the project, is expressing doubts about whether the plant will get critical loan guarantees from the Department of Energy. Without the loan guarantees, bond issuers say they would not finance the plant, and the project would die.

In a news conference last week, Daniels was asked whether the Department of Energy would be likely to approve the loan guarantees in the wake of several loan rejections for auto companies, including Carbon Motors and Bright Automotive, to produce high-mileage cars. Both auto companies said they had worked intensely for years on due diligence with the agency and were stunned by the loan rejections.

So what might that mean for Rockport?

"I don't know in the case of Rockport," Daniels said. "That's for them to judge. But the recent experiences are cautionary."

Posted by Marcia Oddi on Sunday, March 18, 2012
Posted to Indiana Government

Ind. Law - "Fines will toughen Indiana public-access laws, backers say: Bill awaits decision by Gov. Mitch Daniels"

That is the headline to this March 17th AP story by Tom Davies that begins:

A bill awaiting a decision by Gov. Mitch Daniels would allow judges to levy fines against government officials for blatantly violating Indiana's public access laws, the first time personal penalties would be imposed since the laws were adopted 35 years ago.

Supporters believe fines would rarely be issued but say the option would strengthen the state's open records and open meetings laws.

The measure, approved in the final hours of the legislative session, allows civil fines of up to $100 for a first offense and up to $500 for additional violations against either the government official who committed the violation or the government agency. No criminal charges are involved.

So what bill is this? The story does not identify the bill.

It turns out it is HEA 1003, into which the contents of HB 1093 were inserted in conference committee.

Posted by Marcia Oddi on Sunday, March 18, 2012
Posted to Indiana Law

Law - "Is Facebook part of your estate? States weigh laws to govern social media accounts after death" - A closer look ...

This story by Michael Avok of the Associated Press has appeared in many papers throughout the county in the past few days. Here are a few quotes about the new state laws:

[L]awmakers and attorneys in at least two states are considering proposals that would require Facebook and other social networks to grant access to loved ones when a family member dies, essentially making the site contents part of a person’s digital estate. The issue is growing increasingly important as people record more thoughts and experiences online and more disputes break out over that material. * * *

Nebraska is reviewing legislation modeled after a law in Oklahoma, which last year became the first state to take action.

ILB: So what do these laws provide? The ILB found a number of stories, but it took a while to locate the text of the laws themselves.

The Oklahoma law. A blog called Digital Passing, "Estate Planning for Passwords and Digital Property," had an entry Dec. 1, 2010 by Jim Lamm, headed "Oklahoma Statute Gives Executor Power Over Decedent’s Online Accounts." The entry, which points to some shortcomings in the law, also includes the text:

§58-269. Executor or administrator - Powers.
The executor or administrator of an estate shall have the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.
Added by Laws 2010, c. 181, § 1, eff. Nov. 1, 2010.
As for Nebraska, this Jan. 18, 2012 story by JoAnne Young in the Lincoln Nebraska Journal Star, is headed "Senators deal with what happens when Facebook users die." A brief quote:
[Sen. John Wightman] is sponsoring a bill (LB783) at the request of the Nebraska Bar Association that would put into law that a personal representative can take control of, continue or terminate any social networking site, blog, email or message service on the Internet belonging to a person who dies.

There's no official authority now to terminate Facebook, Twitter or other social media accounts, he said.

The ILB is unfamilar with procedure in the Nebraska unicameral system, but here is what looks look the latest action on LB783, from Feb. 13, 2012: "CLERK: Mr. President, Government Committee reports LB772 and LB823 to General File, and LB782 to General File with amendments. (Legislative Journal page 497.)"

The introduced bill would add this language to Neb. Rev. Stat. 30-2472:

(2) A personal representative shall have the power, unless the personal representative's authority has been restricted by will or by court order, to take control of, conduct, continue, or terminate any account of a deceased person on any social networking web site, microblogging or short message service web site, or email service web site.
So this Nebraska proposal parallels the Oklahoma statute, and is subject to the same issues Mr. Lamm set out in his blog entry.

Finally, the AP story concludes with:

Oregon could be the next state to take up the issue. The Oregon State Bar Association has formed a group to work on the matter and hopes to propose legislation next year.
Virtual asset instructions

Portland lawyer Victoria Blachly said the plan will mirror the Oklahoma law, but it will also include a “virtual asset instruction letter” that lists online information and passwords, along with instructions for when someone dies or becomes incapacitated.

“That’s the part that social media providers have been wrestling with,” she said.

Posted by Marcia Oddi on Sunday, March 18, 2012
Posted to General Law Related

Ind. Decisions - Still more on: Supreme Court issues public reprimand to Carl J. Brizzi

Updating this ILB entry from March 13th, today in this item in the Indianapolis Star weekly column, Behind Closed Doors, reporter Jon Murray expands on his March 13th story:

Prosecutors in Indiana will have to be even more careful when they comment publicly on pending cases under guidance provided by the Indiana Supreme Court last week.

They're still sorting out what to make of a disciplinary case that ended with the high court reprimanding former Marion County Prosecutor Carl Brizzi. He was taken to task for his comments in 2006 after the prosecutor's office filed murder charges against two men accused in the Hamilton Avenue slayings of seven people. The men were later convicted.

The Supreme Court's worry: that Brizzi's comments -- including saying in a news release, "I would not trade all the money and drugs in the world for the life of one person, let alone seven" -- risked robbing the defendants of a fair trial.

So what does Brizzi's successor in Marion County think?

"We've made every effort to be circumspect in what we say," Prosecutor Terry Curry told us after Monday's Brizzi ruling was issued. "If it's necessary that we be more so, in light of this decision, we will obviously do it."

Still, the office's attorneys will have to tread carefully. A law professor, Joel Schumm, recalled a statement by Curry a year ago, about a death-penalty case, that might have pushed the envelope had the Supreme Court's new rules been in effect then.

Curry issued a news release in February 2011 announcing his decision to seek the death penalty against Thomas X. Hardy in the killing of Indianapolis police officer David Moore.

He said: "We believe the evidence will clearly show that this senseless killing was intentional while Officer Moore was doing nothing more than performing his routine duties. As we should all realize from the emotional outpouring after Officer Moore's death, this is more than a crime against our police officer. It is a crime against our community."

"That sounds pretty close to out of bounds," said Schumm, a professor at the Indiana University Robert H. McKinney School of Law.

But Curry disagreed, saying his intent was to explain why the death penalty was warranted. "In terms of the Officer Moore case, (what I said) is the allegation of the complaint."

On Wednesday, Hardy pleaded guilty to murder in exchange for the promise of a life sentence.

Posted by Marcia Oddi on Sunday, March 18, 2012
Posted to Ind. Sup.Ct. Decisions

Saturday, March 17, 2012

Ind. Gov't. - "Dr. Antoinette Laskey resigns in frustration as head of Indiana Child Fatality Review Team: Nationally recognized expert blames lack of support from Daniels administration, conflicts with head of DCS"

Tim Evans reports today in a long story in the Indianapolis Star. Here is a sample:

"The recent publicity of 'record low deaths' counted as child abuse or neglect fails to recognize the fact that hundreds of children died preventable deaths in our state," Laskey wrote in her letter to Daniels.

"There is no success story in being able to re-categorize them as not the responsibility of the Department of Child Services."

[DCS head James] Payne said he was surprised by the tone of the letter.

"My only comment is perhaps it is a good time for her to leave," he said. "She has been in that position for a number of years, and maybe this is a good opportunity for a fresh look at things, particularly with the new child fatality legislation."

Posted by Marcia Oddi on Saturday, March 17, 2012
Posted to Indiana Government

Ind. Gov't. - More on: BMV announces that it is suspending the Indiana Youth Group from its Special Group Recognition License Plate Program [Updated]

Updating yesterday's ILB entry, a number of Indiana papers have stories today. Here are:

[Updated] SPEA prof Sheila Kennedy posted a strong blog entry today, headed "The Bullies’ Pulpit." A sample:
Our Indiana legislators couldn’t find it in their hearts to pass a law that would protect these vulnerable children against bullying in our schools. They also couldn’t find time in their busy legislative schedules to address a number of important issues facing the state. But at least twenty of them managed to find the time to do a little bullying of their own.

Their mean-spirited effort to pass a law that would keep IYG from participating in the State’s specialty license plate program failed–due largely to a grass-roots outcry joined by news media around the state. But these lawmakers weren’t willing to let the matter die. They wrote to the Department of Motor Vehicles, claiming that IYG and two other organizations had “breached their contracts” by giving a small number of plates to donors–a practice that was evidently fairly widespread, and a “breach” that legislators and the BMV had previously ignored.

When you are a state agency, and you get a letter signed by twenty of the people who control your funding, you listen. So IYG’s participation in the specialty plate program has been suspended, and the bullies in the General Assembly have achieved by stealth what they couldn’t manage in the light of day.

Posted by Marcia Oddi on Saturday, March 17, 2012
Posted to Indiana Government

Courts - Still more on "Ky. court will hear appeal by Amish: Safety triangles at issue in case "

Updating this ILB entry from July 3, 2011, the Louisville Courier Journal has a March 15th story by Peter Smith headed "Kentucky high court hears Amish buggy case." The story begins:

No justice on Kentucky’s Supreme Court disputed Thursday that a law requiring bright orange-red triangles on the rear of horse-drawn buggies imposes a burden on the consciences of those Amish who believe that using them would violate their religion.

But members of the court grilled lawyers for the Amish and the commonwealth over whether that burden was unconstitutional — or whether the state’s need to regulate highway safety trumped religious objections.

“Isn’t the question here not whether the religious exercise of the particular Amish family involved here has been infringed upon but whether that infringement is permissible?” asked Deputy Chief Justice Mary C. Noble. * * *

“The issue is not whether the law is superior to religious beliefs,” Christian Miller of the Kentucky Attorney General’s office argued in defense of the emblem requirement. “These gentlemen may believe whatever they want. The issue is whether they do not have to follow a law that everyone else does.”

But attorney William Sharp of the American Civil Liberties Union of Kentucky cited a guarantee in the Kentucky Constitution that no “human authority shall, in any case whatever, control or interfere with the rights of conscience.”

That, said Sharp, is an even broader protection than that of the First Amendment to the U.S. Constitution, which lower courts have already ruled does not grant the Amish an exemption from the emblem requirement.

“The rights of conscience would seem to protect … a refusal to do acts that would be contrary to one’s religious beliefs,” he said. * * *

Most Amish groups are willing to use the triangles, but those challenging the law belong to the strict Old Order Swartzentruber movement, which opposes their use. They propose instead using lanterns and white or gray reflective tape.

Both houses of the Kentucky General Assembly have passed measures allowing the use of reflective tape instead of the triangles, and the Senate measure is on the House agenda for Thursday.

The legislation may make the Supreme Court appeal irrelevant for future buggy cases, but it could have implications for the broader question of the extent of religious freedom under the state Constitution.

Also interesting is this March 16th post by Steve Eder in the WSJ Law Blog, headed "Amish Have Their Day in Court." The linked letter is particularly worth reading.

Posted by Marcia Oddi on Saturday, March 17, 2012
Posted to Courts in general

Ind. Gov't. - More on "Monroe County, Benton Township trustee resigns after seeing 2010 audit report"

Updating this ILB entry from March 2nd, the AP is reporting:

BLOOMINGTON Ind. (WTW) — The Indiana attorney general's office is suing a former township trustee from Monroe County demanding she repay nearly $100,000 in public funds that a state audit alleges she misappropriated.
Here is the AG's 3/16 press release.

Posted by Marcia Oddi on Saturday, March 17, 2012
Posted to Indiana Government

Friday, March 16, 2012

Law - "New Guide Explains the Medicaid Appeals Process"

Via Be Specific, this detailed Guide from the Kaiser Family Foundation's Commission on Medicaid and the Uninsuredcould be real useful to some practitioners.

Posted by Marcia Oddi on Friday, March 16, 2012
Posted to General Law Related

Ind. Law - Governor has now received all bills passed this session

Check on their status here, at the Govenor's 2012 Bill Watch page.

Posted by Marcia Oddi on Friday, March 16, 2012
Posted to Indiana Law

Ind. Gov't. - BMV announces that it is suspending the Indiana Youth Group from its Special Group Recognition License Plate Program

A BMV press release, just issued, begins:

INDIANAPOLIS – At the written request of twenty Indiana Senators, the Indiana Bureau of Motor Vehicles (BMV) has reviewed allegations that the Indiana Youth Group (IYG) violated its professional services contract for participation in the Special Group Recognition License Plate Program with the BMV by offering low-digit license plates for unauthorized monetary contributions.

The BMV has determined that the IYG violated state law and Indiana Administrative Code, along with Section 1.A.viii of the contract, and has suspended IYG's further participation in the Special Group Recognition License Plate Program, effective March 16, 2012.

Here is the March 8th ILB entry on this topic.

Here, from happier times, is the Jan. 19th ILB entry, headed "Indiana unveils its first license plate for gay youth."

[More] Mary Beth Schneider has posted a story on the IndyStar site, headed "BMV pulls specialty license plates from 3 groups." Some quotes:

The youth group — a support group for gay and lesbian youths — was targeted by conservative lawmakers who were upset that the group won a specialty plate. In the final days of the legislature, there were efforts to pass legislation that would strip them of their plate, while also cutting down on the proliferation of specialty plates in general.

When that effort failed, lawmakers, including Senate President Pro Tempore David Long, R-Fort Wayne, said they had found an alternative “solution”: Seeking to void the group’s contract.

Mary Byrne, executive director of the Indiana Youth Group, said the BMV called her today and said 20 senators had sent a letter challenging their plate and that it was being removed from sale. She said they were given no chance to appeal; no opportunity to state their case.

Byrne said she did not yet know what avenues the IYG might pursue, and did not currently have an attorney though at least two have called offering to assist.

The plate, she said, means far more to the IYG than to some groups.

“It’s a ‘we’ve arrived, we are now OK in Indiana’ plate,” she said.

And while she would not choose to go through this fight, she said it has had one benefit of giving the group visibility and publicity that it never had before.

Byrne far more groups than just these three were giving the plates as thank-you gifts to donors. The IYG only obtained their plate this year, after filing a lawsuit as they were repeatedly turned down despite meeting the state’s criteria. She said they offered low-digit plates as thank-you gifts because they saw other organizations, including universities, were doing the same.

Posted by Marcia Oddi on Friday, March 16, 2012
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 4 today (and 16 NFP)

For publication opinions today (4):

In Jack Messer v. New Albany Police Department, a 14-page, 2-1 opinion, Judge May writes:

Jack Messer was a New Albany police officer who made a racially-charged remark while talking with other officers after roll call. The comment was leaked to the press. The New Albany Police Merit Commission found Messer's statement was conduct unbecoming an officer and suspended him. On judicial review, the trial court granted the New Albany Police Department's motion for summary judgment, finding there was no issue of fact as to whether Messer's conduct was unbecoming an officer and provided a basis for his discipline. We affirm. * * *

As there is no genuine issue of material fact as to whether Messer's statement had the potential to disrupt the efficiency and effectiveness of the Department's operations, Love, 946 N.E.2d at 10, we affirm the trial court.

NAJAM, J., concurs.
BAKER, J., dissents with separate opinion. [that concludes] In sum, I do not believe that the Department successfully established that Officer Messer's comments had the potential to disrupt the efficiency and effectiveness of its operations. As a result, it is my view that Officer Messer's comment was protected by the First Amendment, and the trial court erred in granting the Department's motion for summary judgment.

In Harry Kaufmann Motorcars, Inc. v. Schumaker Performance, Inc., a 10-page opinion, Judge Bradford writes:
Appellant-Plaintiff Harry Kaufmann Motorcars, Inc. (“HKM”) appeals the trial court's decision to set aside a foreign judgment rendered in the State of Wisconsin against Appellee-Defendant Schumaker Performance, Inc. (“Schumaker”) as void for lack of personal jurisdiction. Concluding that the Wisconsin court had personal jurisdiction over Schumaker, we reverse and remand the matter to the trial court for future proceedings consistent with this opinion. [ILB: Cites International Shoe!]
Indiana Farm Bureau Insurance Company as subrogee of Joseph Koors d/b/a Koors Amoco v. Harleysville Insurance Company, a 12-page opinion, Judge Bradford writes:
Appellant-Plaintiff Indiana Farm Bureau Insurance Company (“Farm Bureau”), as subrogee of Joseph Koors d/b/a Koors Amoco, appeals from the trial court's denial of its summary judgment motion against Appellee-Defendant Harleysville Insurance Company (“Harleysville”) and the trial court's grant of Harleysville's summary judgment motion. Farm Bureau contends that the trial court erred in concluding that Harleysville was not obligated to defend and indemnify Koors in proceedings related to the remediation of contamination at its place of business. We reverse and remand.
In Chad M. McLain v. State of Indiana , a 13-page opinion, Judge Crone writes:
Chad M. McLain1 was stopped for failing to activate his turn signal at least two hundred feet before turning. The officer issued a warning ticket and told McLain that he was free to leave. Then the officer asked McLain if he had illegal substances in his car and for McLain's permission to search the car. McLain voluntarily consented to the search of his car and marijuana was discovered. McLain was charged with and convicted of possession of marijuana. On appeal, he claims that the trial court abused its discretion in admitting the marijuana because the search of his car violated his state and federal constitutional guarantees against unreasonable search and seizure. Specifically, he argues that after the traffic stop was completed, the officer's continued questions and search of his vehicle were unconstitutional. Finding no constitutional violations, we affirm. * * *

Here, McLain was free to leave and voluntarily gave his consent to search his vehicle. We conclude that Officer Valderrama's questions following the termination of the traffic stop did not impinge upon McLain's Fourth Amendment Rights. * * *

Like Callahan, McLain clearly and voluntarily consented to the search of his vehicle even after being told that he was free to go. Therefore, we conclude that Article 1, Section 11 was not violated by Officer's Valderrama's conduct following the termination of the traffic stop.

Based on the foregoing, we conclude that the trial court did not abuse its discretion in admitting evidence obtained from the search of McLain's vehicle. Therefore, we affirm his conviction for possession of marijuana.

NFP civil opinions today (6):

In the Matter of the Term. of the Parent-Child Rel. and Adoption of J.P.; M.P. and Z.P.; D.P. and G.P. v. Indiana Dept. of Child Services and J.H. and T.H. (NFP)

Todd Richmond v. Erin Mager (Richmond) (NFP)

In Re: The Adoption of T.L.; M.J. v. D.F. and K.F. and Indiana Dept. of Child Services (NFP)

Olde York Potato Chips, Inc., ONAP, Inc., and Peter Margie v. Shenolikar Dwarka and Dwarka & Sons, Inc. (NFP)

R.F. and I.A. v. Indiana Department of Child Services (NFP)

Dominee M. Florence v. Review Board of the Indiana Dept. of Workforce Development and Kindred Nursing Centers LTD PTR (NFP)

NFP criminal opinions today (10):

Rickey Robey v. State of Indiana (NFP)

Kimberly L. Zapalac v. State of Indiana (NFP)

Jeffrey S. Pryor v. State of Indiana (NFP)

Dathan Alexander v. State of Indiana (NFP)

B.O. v. State of Indiana (NFP)

Terrell Ewell v. State of Indiana (NFP)

Rebecca A. Thieling v. State of Indiana (NFP)

Andre Gonzalez v. State of Indiana (NFP)

Paul J. Kinnaman v. State of Indiana (NFP)

Lesnick Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 16, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Retiring Indiana chief justice to be honored Monday"

Brief story in the Indianapolis Star.

From a Court news release:

Governor Mitch Daniels and American Bar Association President, William T. (Bill) Robinson will honor the public service career of retiring Indiana Supreme Court Chief Justice Randall T. Shepard on March 19, 2012. The event will allow state officials, the legal community and the public to show appreciation for Chief Justice Shepard’s twenty-seven years of service to Indiana.

March 19, 2012
Indiana Supreme Court Courtroom
State House, 3rd Floor
1:30 p.m. EDT

The ceremony will also include remarks from Justice Brent E. Dickson, state and local bar associations and a former law clerk. Shepard’s wife, Amy W. MacDonell, and their daughter, Mattie Shepard will also be present at the ceremony.

The ceremony will be videocast.

Posted by Marcia Oddi on Friday, March 16, 2012
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides one Indiana case today

In Foster v. State Farm (ND Ind., Springmann), a 20-page opinion replete with Indiana law, Circuit Judge Tinder writes:

This case presents two issues, both under Indiana law: First, whether the Fosters breached their insurance contract with State Farm by failing to comply with a section titled “Your Duties After Loss” and, second, whether State Farm’s delay in deciding the Fosters’ claim was in bad faith and therefore tortious. The district court granted State Farm’s motion for summary judgment. We affirm. * * *

The district court properly granted State Farm’s motion for summary judgment on both issues. Our conclusion should not be overread, however: We do not understand Morris to license badgering and irrelevant demands for documents and information or endless EUOs. But, notwithstanding the Fosters’ representations, that is not this case; Morris does require policyholders to perform their specific “duties after loss.” And that the Fosters did not do. AFFIRMED.

Posted by Marcia Oddi on Friday, March 16, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Two today from Supreme Court

In Jesse J. Harris, Jr. v. State of Indiana, a 5-page, 5-0 opinion, Chief Justice Shepard writes:

A jury found Jesse J. Harris, Jr. guilty of murder and two counts of attempted murder. We have accepted jurisdiction to clarify that a defendant claiming a violation of a local felony case assignment rule need not establish prejudice to prevail on appeal. Concluding no such violation occurred here, closely, we affirm. * * *

Harris argues that the only reason his trial occurred in Howard Superior Court I in the first place is because the State engaged in forum shopping.

A criminal defendant has a right to a fair trial before an impartial judge. Everling v. State, 929 N.E.2d 1281 (Ind. 2010) (citing Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)). In the eyes of the public, and certainly of the defendant, a judge’s impartiality seems less convincing if the prosecution can select the judge before whom it will be heard. To prevent forum shopping aimed at obtaining a judge believed to be more favorable to the State—even in cases in which the perceived advantage might be open to doubt—this Court has obliged the trial courts of each county to formulate a local rule for the nondiscretionary assigning of all felony and misdemeanor cases. Ind. Crim. Rule 2.2. The judges in each county design a rule that fits with local circumstances and submit the plan for approval by the Indiana Supreme Court. Ind. Crim. Rule 2.2.

Under this arrangement, the Howard Circuit and Superior Courts adopted a rule providing for a weekly rotation among the Circuit Court, Superior Court II, and Superior Court IV. Howard LR34-CR2.2 Rule 29(A). In general, a Howard County prosecutor must file a felony criminal charge in the court designated by the weekly rotation, on the basis of the date the offense occurred, subject to several exceptions. Local Rule 29(B). Under one of these exceptions, when a defendant already faces an earlier criminal charge in a court not on rotation, the prosecutor must file felony criminal charges in that court instead. Local Rule 29(B)(5). * * *

Although Harris’s interpretation of Local Rule 29 has some force, the trial court’s reading of its own rule, approved here through the standard process, is a plausible one entitled to some deference on appeal. We are thus inclined to accept its interpretation and conclude that no violation occurred.

Still, the shades of grey in Local Rule 29 that led to this dispute need sharpening up. We will therefore ask the judges in Howard County to draft amendments sufficient to prevent a recurrence.

We therefore affirm Harris’s conviction.

In Indiana Department of State Revenue v. AOL, LLC, an 11-page, 5-0 opinion, Chief Justice Shepard writes:
Under a complex series of arrangements with people like paper suppliers, printers, and packagers, AOL procured promotional mailers it sent to Indiana residents. None of the players in these transactions, AOL says, should owe sales or use tax. The Tax Court agreed. We reverse. * * *

AOL argues that it did not acquire the CD-ROM packages and promotional materials in any retail transactions because it merely purchased assembly and printing services. (Resp.’s Br. at 9–13.) AOL acknowledges that it may have purchased raw materials in retail transactions, and it may have used the CD-ROM packages and promotional materials in Indiana. (See Resp.’s Br. at 9–10.) But, AOL argues, its third-party contractors completely consumed the raw materials in producing final products that were separate and distinct from the raw materials. (Resp.’s Br. at 10–13.) In other words, AOL acquired raw materials in retail transactions but did not use them in Indiana, it used the final products in Indiana but did not acquire them in any retail transactions, and never the twain shall meet. * * *

Here, we think the assembly houses and letter shops were selling at retail. The assembly houses and letter shops acquired tangible personal property when they took possession of the individual components. That they did so for the purpose of resale is clear not only from the fact that neither AOL nor any third-party contractors ever paid any sales or use taxes on the raw materials, but also—and more importantly—from the fact that the assembly houses and letter shops completely consumed the raw materials, regardless of who provided them, to produce a separate and distinct final product that previously did not exist at all. AOL may have had title in the raw materials, but it could not have title in the final products until they came into existence. As AOL paid consideration and received title to goods in which it previously had none, we think a sale of goods occurred. The assembly houses and letter shops transferred that property to a person for consideration, its changed form notwithstanding, when they mailed the CD-ROM packages and promotional materials to AOL’s prospective and current members at AOL’s request and in exchange for payment from AOL.

Because the assembly houses and letter shops were selling at retail, the transactions between AOL and its assembly houses and letter shops constituted retail transactions that triggered Indiana’s use tax once AOL used the property in Indiana.

Conclusion: For the reasons stated above, we therefore reverse the Tax Court.

Posted by Marcia Oddi on Friday, March 16, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Governor Daniels has appointed State Sen. Connie Lawson as Sec of State.

Announced this morning at 11:30. Ms. Lawson is from Hendricks County.

[Update] Niki Kelly has posted this story on the Fort Wayne Journal Gazette site.

Mary Beth Schneider ‏| @marybschneider | Lawson's appointment as SOS, plus retirements, mean only 5 of 37 Rs in Senate are women. Four of 13 Ds are women.

[Update 2] Here is Mary Beth Schneider's IndyStar story.

Posted by Marcia Oddi on Friday, March 16, 2012
Posted to Indiana Government

Ind. Courts - "Delaware Judges order council to accept budget The mandate would restore pay and give judges control of the budget"

As has happened in the past with several other counties, including St. Joseph and Clerk, a number of Delaware County judges are mandating the county council to provide requested court funding. Some quotes from a story today by Keith Roysdon in the Muncie Star-Press:

The dispute between Delaware County Council and local judges over control of the court system budget has moved into the legal arena: The judges have issued an order of mandate to the fiscal body.

The mandate, signed by four of five Delaware Circuit Court judges and issued Thursday, orders county council to "reimburse and restore all pay to court staff," including back pay.

The judges also order that council accept a court system budget submitted by the judges.

The budget -- and the judges' interest in controlling their own $1.8 million courts budget -- is at the heart of the dispute. All five local Circuit Court judges have been to recent council meetings and asked for that control. * * *

The judges ordered council to "provide funding as outlined in the 2012 budget proposed by the judges in June 2011."

"Such funding will be fully and completely appropriated by the council as presented by the judges immediately," the mandate reads. * * *

King said Thursday afternoon that he didn't understand the reason for the mandate.

"I thought all the judges wanted was their girls' salaries to be brought back up," [Council president James] King said. "We showed in good faith that was what we were going to do. I don't understand what the courts want." * * *

Besides Wolf, Thursday's order of mandate was signed by Circuit Court 2 Judge Alan Wilson, Circuit Court 4 Judge John Feick and Circuit Court 5 Judge Thomas Cannon Jr. Delaware Circuit Court 1 Judge Marianne Vorhees did not sign the order.

In their mandate, the judges write that they realize the mandate was "an extraordinary action to stand for judicial independence."

The judges have hired Indianapolis attorneys Phil Isenbarger and Karl Mulvaney to represent them and the judges, in their mandate, warn that council "will be required to pay legal expenses" associated with the mandate.

It's possible that council will hire attorneys separate from Amanda Dunnuck, who practices before local judges. [ILB emphasis]

Here is a long list of earlier ILB entries re "judicial mandate".

Posted by Marcia Oddi on Friday, March 16, 2012
Posted to Indiana Courts

Ind. Courts - CJ Shepard approves judicial branch raises

From the Court's press office:

In accordance with Indiana statutes, the state budget director and Chief Justice have approved for judges and prosecutors, effective July 1, 2012, the same pay adjustment ordered by Governor Daniels for Executive Branch employees effective January 2012. For example, that 2.2% salary increase means full time prosecutors and trial court judges will earn $130,080. (The latest ranking by the National Center For State Courts puts trial court judges pay at 34th in the country)

Posted by Marcia Oddi on Friday, March 16, 2012
Posted to Indiana Courts

Ind. Decisions - More on: Petition for transfer filed in Bei Bei Shuai death of fetus case

Updating this ILB entry from March 14th, here is an AP story headed "Indiana court asked to hear appeal in feticide case " that provides some background.

Posted by Marcia Oddi on Friday, March 16, 2012
Posted to Ind. App.Ct. Decisions

Courts - More on "Jury Files: The Temptation of Twitter"

Updating this ILB entry from March 14th, see also this story today from Ameet Sachdev's Chicago Law column in the Tribune, headed "Proactive jury instructions largely effective against social media leaks: Online networking poses risks to fair trial, but admonishment works, says federal judge in Chicago who co-authored article."

He interviews the federal judge wrote the article cited in the earlier post.

Posted by Marcia Oddi on Friday, March 16, 2012
Posted to Courts in general

Ind. Decisions - More on: Trial judge upholds school voucher law

Per the Supreme Court press office:

The Court has granted a request that it take the appeal in Meredith v Daniels, the constitutional challenge to the Indiana Choice Scholarship Program, directly from the trial court.
See this ILB entry from Jan. 13, 2012, for a copy of the trial court opinion.

Posted by Marcia Oddi on Friday, March 16, 2012
Posted to Indiana Transfer Lists

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

Wednesday, March 14, 2012

Courts - Different regions of the country tend to share selection methods for appellate judges

Orin Kerr writes at The Volokh Conspiracy:

The Federalist Society recently put up this interesting website with information on how different states select judges for their supreme courts. There’s lots of info if you follow the links, too. The regional trends are particularly interesting, with different regions of the country tending to share methods with states nearby.
Take a look, it is interesting.

Posted by Marcia Oddi on Wednesday, March 14, 2012
Posted to Courts in general

Ind. Decisions - Petition for transfer filed in Bei Bei Shuai death of fetus case

Updating this long list of earlier ILB entries, a petition to transfer was filed March 9th in the Bei Bei Shuai case.

Today marks the one year anniversary of the jailing of Bei Bei Shuai, without bail

Here are the transfer petition and amicus briefs filed on behalf of Ms. Shuai. Here is the Feb. 8th COA opinion.

Here are the questions presented on transfer:

I. By inserting the term "fetus" in the murder and feticide statutes, did the Indiana Legislature intend to make pregnant women criminally liable for the outcome of their pregnancies, contrary to over 200 years of Indiana legislative and judicial history?

II. Did the court of appeals contravene settled case law by refusing to address any constitutional claims because it had resolved the case against the defendant based on the plain language of criminal statutes?

III. Does the State's unprecedented prosecution of a pregnant woman for murder and feticide based upon her attempt to commit suicide violate multiple constitutional provisions when she was not provided notice that by being pregnant she would be subject to the homicide laws if her actions or inactions were perceived by law enforcement to potentially harm her fetus?

Posted by Marcia Oddi on Wednesday, March 14, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - 7th Circuit rules prisoner can be denied access to drug-reference books

Thanks to Michelle Olsen @AppellateDaily for pointing to this story at the First Amendment Center. David L. Hudson Jr. begins:

A federal appeals court has ruled that Illinois prison officials did not violate the First Amendment when they denied an inmate two medical books about drugs. The decision shows the broad range of deference given to prison officials in making these types of reading-material decisions.

James Munson, who is serving a life sentence at the Menard Correctional Facility for murder, ordered six books from a prison-approved bookstore. Prison officials approved several of them, including Carpe Diem: Put a Little Latin in Your Life. But they denied Munson the Physicians’ Desk Reference and the Complete Guide to Prescription & Nonprescription Drugs 2009.

The March 9th opinion is Munson v. Gaetz and is authored by Judge Tinder.

Posted by Marcia Oddi on Wednesday, March 14, 2012
Posted to Ind. (7th Cir.) Decisions

Environment - Indiana Antidegradation Standards and Implementation Procedures [Updated]

This afternoon the Indiana Water Pollution Control Board is considering final adoption of the long, long awaited antidegradation standards. Here is the meeting agenda.

Here is the Feb. 20, 2012 Fact Sheet about the proposed new rule. See particularly the "reasons for the rule."

The ILB has a number of entries on this topic. See this one from 2008 where IDEM predicts a final rule by 2009. Here is a History of Indiana's Antidegradation Implementation Rulemaking, presented to the Water Pollution Control Board on Jan. 9, 2008.

Here is a March 8, 2008 entry referencing the "Barnes report":

In an independent review of the BP Whiting Refinery permit to discharge to Lake Michigan, James Barnes recommended that Indiana should clarify its antidegradation regulations for Lake Michigan to make them easier for permit applicants and the public to understand and for the agency to apply. At the request of Governor Daniels, and in response to the Barnes report, the Indiana Department of Environmental Management (IDEM) will meet with interested parties concerning the development of an antidegradation rule for the State of Indiana.
See this Aug. 13, 2007 ILB entry headed "Governor Daniels asks former dean of SPEA to conduct 6 weeks study of Indiana's IDEM's BP permit."

Also of interest on the WPCB agenda today is a Concentrated Animal Feeding Operations (CAFO) emergency rule (factsheet).

Finally, the General Assembly passed a bill this session to abolish the Water Pollution Control Board, along with the Air and Waste Boards, and merge them into an a single "environmental board." The bill is pending before Gov. Daniels. Many people have commented that the complexities in the regulation of the three different media are too much to expect a single board, meeting occasionally, to address adequately, and that it will risk becoming simply a rubber stamp for the Department. For more, see this March 10th ILB entry. The bill is HEA 1002.

[Updated at 7:00 PM] Carrie Schedler of the Associated Press is reporting this evening that the WPCB has adopted the new rules.

Posted by Marcia Oddi on Wednesday, March 14, 2012
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 18 NFP)

For publication opinions today (2):

In In Re the Adoption of M.P.S., Jr.; A.S. v. M.P.S., Sr., M.S., and An.S., a 13-page opinion, Judge Bailey writes:

A.S. (“Mother”) appeals the denial of her motion for relief from judgment, wherein she alleged fraud, duress, and lack of procedural due process in the adoption of M.P.S., Jr., her child with M.P.S., Sr. (“Father”), by Father’s mother and step-father (“Grandparents”). Mother presents the sole issue of whether the trial court erred in refusing to set aside the adoption. We reverse and remand with instructions. * * *

The record is replete with evidence of procedural error, involuntariness, and fraud upon the court. In light of the extremely irregular and – to some extent – fraudulent circumstances surrounding the adoption of M.P.S., Jr., we conclude that Mother has met her burden to set aside the adoption. Her consent was invalid as a matter of law. We remand to the trial court with instructions to vacate the adoption decree, and to comply with Indiana Code Section 31-14-13-1, which vests sole legal custody of a child born out of wedlock in the biological mother.

Dominique D. Woods v. State of Indiana - Affirmed. Issue: whether the jury’s guilty finding for assisting a criminal is logically inconsistent with its guilty finding for robbery as an accomplice.

NFP civil opinions today (3):

Timothy Colby & Holly Colby v. T.H. Construction, Inc. (NFP)

Term. of Parent-Child Rel. of M.J.; C.J. v. Indiana Dept. of Child Services (NFP)

In the Matter of the Involuntary Term. of the Parent-Child Rel. of L.L., and R.L. v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (15):

Jessica E. Mantooth v. State of Indiana (NFP)

David Marzini v. State of Indiana (NFP)

Shavaughn Wilson v. State of Indiana (NFP)

Chris Davis v. State of Indiana (NFP)

Patty Garcia v. State of Indiana (NFP)

Jacob Lockridge v. State of Indiana (NFP)

Christopher L. Overla v. State of Indiana (NFP)

Scott C. Haisley v. State of Indiana (NFP)

William James Hall v. State of Indiana (NFP)

Tamara Sue Forrester v. State of Indiana (NFP)

John McMahan v. State of Indiana (NFP)

Paul Michael Kage v. State of Indiana (NFP)

Raymond Warren v. State of Indiana (NFP)

Noah Thom v. State of Indiana (NFP)

Imani Scott v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 14, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one, so far, today

In Phyllis Hardy, Alax Keith Furnish and Megan Jessica Furnish, by next friend Phyllis Hardy v. Mary Jo Hardy, a 15-page, 5-0 opinion, Justice David writes:

In this case, an insured held a life insurance policy issued as part of a federal employee benefit plan. When the insured divorced from his first wife, the divorce decree and property set-tlement required the insured (1) to maintain the life insurance policy and (2) to designate the first wife and their grandchildren as equal beneficiaries. Subsequently, the insured remarried, desig-nated his second wife as the sole beneficiary to the life insurance policy, and increased the insur-ance coverage. After some time, the insured and second wife divorced. When the insured died, the second wife remained the sole beneficiary on the life insurance policy.

The first wife and grandchildren filed suit, asserting equitable claims over the life insur-ance proceeds. On cross-motions for summary judgment, the trial court determined that federal employee benefit law preempted the equitable state law claims and that the policy proceeds ac-cordingly belonged to the second wife.

We hold that the Federal Employees’ Group Life Insurance Act does not preempt the equitable claims and that the first wife and grandchildren are entitled to a constructive trust over at least a portion of the proceeds. * * *

We find that FEGLIA does not preempt an equitable state law claim for a constructive trust over FEGLI policy proceeds. We also find that the property settlement in this case required Carlos to “maintain” his FEGLI policy for the benefit of Phyllis and the grandchildren. Phyllis and the grandchildren are at least entitled to whatever the death benefit value under “Option A” would have been at the date of Carlos’s death, and they hold the equitable right to enjoy those proceeds once they are paid.

Accordingly, we reverse the trial court’s grant of summary judgment in favor of Mary Jo. We remand to the trial court to determine what the death benefit value under “Option A” was at the date of Carlos’s death; place a constructive trust over that amount in favor of Phyllis and the grandchildren; and determine who is entitled to any balance.

Posted by Marcia Oddi on Wednesday, March 14, 2012
Posted to Ind. Sup.Ct. Decisions

Courts - "Jury Files: The Temptation of Twitter"

That was the heading to an entry Monday by Steve Eder of the WSJ Law Blog. It begins:

U.S. courts are increasingly concerned about jurors who Tweet and post on Facebook during trials and judges are trying to clamp down on those who won’t logout of their online accounts until the case is closed.

The problem is quite frustrating. In fact, in a new study in the Duke Law & Technology Review, one juror responded to an information survey by saying “nothing” could prevent her from communicating through social media during a trial.

That might seem extreme, but it isn’t that surprising, writes study authors Amy St. Eve, a federal judge, and Michael Zuckerman, her law clerk.

“After all, the jury is a fundamentally human institution, as one of the jurors in the informal survey reminded us…,” they wrote.

Here is the 29-page Duke study, titled "Ensuring an Impartial Jury in the Age of Social Media."

The entry also links to this WSJ article ($$?) from March 5, titled "Jurors' Tweets Upend Trials: Lawyers Are Using Posts on Twitter and Facebook to Overturn Court Rulings."

Posted by Marcia Oddi on Wednesday, March 14, 2012
Posted to Courts in general

Ind. Gov't. - CJ Shepard sends toxicology status report to county judges

Here is an email that went out late yesterday:

From: Shepard, Randall
Sent: Tue 3/13/2012 4:01 PM
To: *Trial Court Judges; *Magistrates; *Commissioners Referees Full-Time; *Commissioners Referees Part-Time; *City/Town Court Judges
Subject: Inquiries about the state toxicology lab

Dear Colleagues:

Many of you would know from press reports about the failure of the toxicology lab to follow standard protocols in testing and documenting samples submitted in the course of criminal prosecutions. Investigations about these events by the Executive Branch have led to substantial changes in the lab's structure and personnel.

You may recall that during last fall's Judicial Conference in French Lick, former Judge Linda Chezem and others shared what was then known about tests that had been undertaken in the lab.

Following the conference, the Supreme Court assembled a task force to learn as much as could be learned about the facts and to evaluate what sort of cases this might generate and just how the judiciary might be able to deal with claims arising from these very public events. Judges Mike Barnes and Nancy Vaidik of the Court Appeals co-chaired the task force. The other members were Judge Mark Spitzer of the Grant Circuit Court, who chairs the Criminal Law Policy Committee; Steve Owens, the State Public Defender; and Mike McMahon of the Judicial Center. Many thanks to this team of five for some superb work.

I am sending along a recent statement from the Supreme Court based on the task force's inquiry. While we continue to learn additional factual details, I think the general framework about how toxicology claims will be handled remains sound. It seems likely that such claims will be with us for quite a while, but not in one great flood.

I hope you will find this helpful. Thanks again to our comrades who undertook the effort.

RTS

Chief Justice Randall T. Shepard
Indiana Supreme Court

Here is the 2-page statement, which the ILB also posted on Feb. 28th.

Here is a long list of earlier ILB entries on toxicology.

Posted by Marcia Oddi on Wednesday, March 14, 2012
Posted to Indiana Government

Ind. Law - "Drug war rages over sale of pseudoephedrine: Rx for pseudoephedrine may curb meth production"

Another good story in the Sunday March 11th IndyStar, about another continuing debate, this one on how best to control the purchase of cold medicines containing pseudoephedrine, used in meth production. A sample from the very long story reported by Shari Rudavsky:

Proponents of making products containing pseudoephedrine available only with prescriptions argue it's the best way to curb methamphetamine production. Pseudoephedrine, a nasal decongestant, is a key ingredient in the illegal drug.

For now, however, Indiana has taken a different tack. Since January, pharmacists have been required to enter the name of anyone buying a pseudoephedrine into an electronic tracking system.

The system aims to deter people who buy cold medicine from selling the products to meth producers. Once a consumer reaches the legal limit of purchases -- drugs containing 7.2 grams of pseudoephedrine or ephedrine in 30 days -- pharmacists must block additional sales.

Posted by Marcia Oddi on Wednesday, March 14, 2012
Posted to Indiana Law

Ind. Gov't. - "Religion vs. regulation: Indiana's faith-based day cares caught in between: Operators fear licensing will mean state intrusion; advocates fear for kids' safety"

That headline to this long John Tuohy story in the Sunday, March 11th Indianapolis Star pretty much sums it up. A few quotes:

The drowning last month of a 1-year-old boy at a church day care on Indianapolis' Northwestside has rekindled debate over whether the state should require all church-related day cares to be licensed.

Current law allows religious nonprofits to simply register their day cares and avoid most state oversight. Most faith-based day cares choose that route, fearing more government regulation would be onerous and could curtail religious expression. * * *

The number of faith-based day-care centers has soared in recent years, and they now outnumber licensed day cares -- both religious and nonreligious. There are 730 unlicensed faith-based day-care centers in Indiana, compared with 601 licensed day cares.

State officials estimate that only 5 percent of church-related day cares are licensed through the Family and Social Services Administration.

The difference in health and safety standards between licensed centers and unlicensed faith-based day cares is stark. Licensed centers must follow 192 rules; the unlicensed faith-based ministries, 21.

The most glaring disparity is in the number of adults who must be present at day cares. For licensed centers, it's one adult for every four infants and every five toddlers.

There is no ratio requirement for unlicensed centers.

Posted by Marcia Oddi on Wednesday, March 14, 2012
Posted to Indiana Government

Ind. Gov't. - "School bus fees near the end in Franklin Township"

Updating this ILB entry from Nov. 10, 2011, Vic Ryckaert reports today in the Indianapolis Star - the long story begins:

The controversial pay-to-ride bus service in a cash-strapped Indianapolis school district could be coming to an end soon.

The fee-based system in Franklin Township Schools would be forbidden under a measure passed by the Indiana General Assembly and expected to be signed into law by Gov. Mitch Daniels.

The bill, authored by Rep. Mike Speedy, R-Indianapolis, bans school districts from handing buses to an outside company that charges parents for transportation.

"I consider this a public safety issue," Speedy said. "Given the infrastructure of Franklin Township, the county roads without sidewalks, it really begs that the school district provide transportation."

Franklin Township Schools outraged parents when it handed its buses over to a nonprofit company that began charging parents $47.50 per month for a child to ride the school bus. The district took the step after voters rejected a property tax increase to help in school funding.

Many chose to drive their children to school, a situation that created long lines of vehicles and traffic jams near schools during drop-off and pickup times.

At least one parent has sued the district over the fees, which Indiana Attorney General Greg Zoeller said violate the state's constitution.

The story goes on to discuss possibilities for reimbursement of parents who paid this year, and a bill pending the governor's action under which "cash-strapped school districts would have the power to refinance debt without a public referendum."

Posted by Marcia Oddi on Wednesday, March 14, 2012
Posted to Indiana Government

Ind. Gov't. - “Prior restraint of the news media publishing public records is inconsistent with the First Amendment”

Updating this ILB entry from March 12, which sets out AG Zoeller's press release, the Fort Wayne Journal Gazette today has published this long editorial headed "Unconscionable censorship." Here are some quotes:

Credit Indiana Attorney General Greg Zoeller for clearly understanding when the state Court of Appeals and the state Department of Child Services were clueless: The government can almost never prevent publication of a story, and then only in the extremely rare occasion that it poses an immediate and broad danger.

The appeals court wrongfully clamped a muzzle on the South Bend Tribune’s attempts to report how the child services department handled a child-abuse call six months before a subject of the call, a 10-year-old boy, was found dead. After Zoeller stepped in to remove the legal muzzle, it soon became clear why the Department of Child Services (DCS) scrambled to keep the public from hearing the recording of the call.

In the 20-minute call, a bureaucrat seems to go through a script by rote while an anonymous caller repeatedly pleads with her to send authorities to a specific home in South Bend, where the caller says children are being beaten in a basement. Six months later, one of the children was found beaten to death in that very basement.

Hoosiers are instructed to call this child-abuse hotline when they believe children are being hurt. But at one point, the state employee tells the caller “Well, if you have an immediate concern, you can call the police.”

Government officials often say they are trying to protect innocent people or necessary secrets when they conceal records, but usually they are trying to protect themselves or colleagues. DCS officials really didn’t want this recording getting out.

“Prior restraint of the news media publishing public records is inconsistent with the First Amendment,” Zoeller said in a news release.

Indeed, the U.S. Supreme Court has ruled that prior restraint of the press is “the most serious and least tolerable infringement on First Amendment rights.”

That didn’t stop the Indiana Court of Appeals from granting the DCS a court order Friday telling the South Bend newspaper not to publish the recording and transcript a South Bend judge had already ordered released.

Consider again the appalling Court of Appeals order. A newspaper legally receives government records. The newspaper prepares to publish a story based on the records – and, for a brief time, displays the story and the records on its website. The Court of Appeals orders the paper not to publish the records pending a hearing. The three appeals court judges served as government censors, an unacceptable violation of the Constitution.

No wonder Zoeller took the unusual step of asserting his authority, over that of DCS attorneys seeking to stop release of the records, to represent the state. On Monday, he dropped the case and any state effort to stop the story.

“An appropriate legal process exists where state agencies and the news media can resolve disputes over whether records are public, and we acknowledge the views of our DCS colleagues on this issue,” Zoeller said. “Once records have been provided, however, the State of Indiana cannot and should not attempt to prevent publication but must instead rely on journalistic ethics.”

Posted by Marcia Oddi on Wednesday, March 14, 2012
Posted to Indiana Government

Tuesday, March 13, 2012

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

From the IUPUI News Center:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For publication opinions today (2):

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

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

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

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

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

NFP civil opinions today (2):

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

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

NFP criminal opinions today (9):

Alfred Taylor v. State of Indiana (NFP)

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

Matthew Jordan v. State of Indiana (NFP)

Rondell Walker v. State of Indiana (NFP)

Joshua Love v. State of Indiana (NFP)

Elwin Hart v. State of Indiana (NFP)

Aaron Lee v. State of Indiana (NFP)

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

Michael Jones v. State of Indiana (NFP)

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

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

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

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

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

Ind.Law - 2013 US News law school rankings out

Prof. Schumm sends the link and writes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, March 12, 2012

Ind. Decisions - Supreme Court issues public reprimand to Carl J. Brizzi

In In the Matter of Carl J. Brizzi, a 5-0, 13-page, per curiam disciplinary action filed this afternoon at 3:31 PM, the Court writes:

We find that Respondent, Carl J. Brizzi, engaged in attorney misconduct by making public statements as a prosecutor that had a substantial likelihood of materially prejudicing adjudicative proceedings and a substantial likelihood of heightening public condemnation of the criminal defendants. For this misconduct, we find that Respondent should receive a public reprimand. * * *

The Court concludes that Respondent violated Indiana Professional Conduct Rules 3.6(a) and 3.8(f) by 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. For Respondent's professional misconduct, the Court imposes a public reprimand.

The actions charged related to the Bruce Mendenhall case, the Desmond Turner and James Stewart (Hamilton Ave. slayings) cases.

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "'This boy is beat to death' Caller in May pleads 10 times for immediate intervention at Sturgis home."

Here now is the South Bend story the IDCS went to court to try to suppress. It is reported by Virginia Black and Mary Kate Malone. The long story begins:

An anonymous caller to the centralized Department of Child Services hotline spent 20 minutes on May 27, 2011, detailing horrific abuse to 10 children at 1130 W. Washington St. — nearly six months before police found 10-year-old Tramelle Sturgis tortured and beaten to death in that home.

In the course of describing another child’s injuries that day that left the boy limping and bleeding in his abdomen, the caller urges a visit to the home that night to witness the abuse.

"Please go tonight. Please go," the caller repeats. "I’m not saying this just to be saying this. Please go. Something got to be done."

And in the recording of the call that was placed at 9:54 p.m., the caller says, "If they go there right now, they’ll see how them kids is beat if they go there right now because I don’t want it to get on the news and the boy died and then everybody come forward and they gonna say, ‘Well, why did nobody come forward from before?’"

A judge ruled in The Tribune’s favor in a public records request opposed by DCS attorneys for copies of the hotline recordings and transcripts involving the Nov. 4 death of Tramelle Sturgis. The files were released to The Tribune this week.

Accompanying the story are links to an audio of the anonymous call, a timeline of what happened after the call, and a separate March 9th story on Judge Nemeth's ruling, that begins:
SOUTH BEND — A local judge ordered the release of phone records from the Department of Child Services’ child abuse hotline related to Tramelle Sturgis and his family — ending weeks of legal efforts by DCS to keep them out of the public realm.

The records, which St. Joseph Probate Court Judge Peter Nemeth ordered released on Wednesday, included four audio recordings of hotline calls and accompanying transcripts.

Two weeks after 10-year-old Tramelle was killed, The Tribune filed a public records request to DCS, requesting access to all department reports related to the boy and his family.

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

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

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

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

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

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

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

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

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Indiana Government

Ind. Courts - Further Update on IDCS v. South Bend Tribune [Updated at 3:04 PM]

The ILB hasn't received the AG's press release, but Tim Evans at StarWatch is writing, quoting the PR:

INDIANAPOLIS – A South Bend newspaper will be free to publish and post audio recordings from a child abuse prevention hotline, now that Indiana Attorney General Greg Zoeller has intervened and obtained a dismissal of a state agency’s appeal that had sought to prevent publication.

“Prior restraint of the news media publishing public records is inconsistent with the First Amendment. As the lawyer for state government, the Office of the Indiana Attorney General now asserts the legal position of the state that in the interest of openness and transparency, the publication of public records should not be halted,” Zoeller said today.


The Indiana Court of Appeals today was scheduled to hear the Indiana Department of Child Service’s appeal of a St. Joseph County court’s order that had granted access to audio recordings from a child abuse prevention hotline to the South Bend Tribune. DCS contended the recordings were confidential. On Friday, the Court of Appeals granted DCS’s motion and stayed the trial court’s order granting access to the audio files, until the issue could be argued by DCS and the Tribune at today’s hearing.

The DCS is authorized to represent itself with DCS attorneys in cases at the trial level, primarily in matters involving the interests of individual children. The Office of the Attorney General reserves the right to represent the state’s legal position in all legal cases, however, and today entered its appearance in the Court of Appeals and assumed representation of the case from DCS attorneys. The Attorney General then filed a motion to dismiss DCS’s appeal, meaning the St. Joseph County court’s earlier order releasing the information still stands, the Court of Appeals’ order of Friday can be dissolved and there no longer will be a legal obstacle to the audio files being published by the Tribune.

Zoeller said the longstanding authorization for DCS to provide its own legal representation will be reviewed, since the Attorney General’s office must represent the interests of state government where statewide or constitutional issues are involved. “An appropriate legal process exists where state agencies and the news media can resolve disputes over whether records are public, and we acknowledge the views of our DCS colleagues on this issue. Once records have been provided, however, the State of Indiana cannot and should not attempt to prevent publication but must instead rely on journalistic ethics,” Zoeller added. [ILB emphasis]

Read the rest of Evans' post here.

[Updated at 3:04 PM]
The South Bend Tribune has now posted a brief story headed: "DCS drops child abuse hotline records fight; Tribune free to publish stories: Stories to be published as soon as appeals court acts on motion to dismiss case." ILB emphasis.

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Indiana Courts

Courts - What if a judge accepts, then vacates a plea bargain and the defendant goes to trial? Is this double jeopardy?

See "A Bad Deal: Can a Court Force Trial After Accepting a Defendant's Guilty Plea?" by Nicholas J. Wagoner at Circuit Splits blog. A quote:

Sometimes the district court will accept a plea agreement, only to later vacate it and force the defendant to stand trial. Last week a district court identified a wide, well-established circuit split over whether this practice violates the Double Jeopardy Clause’s mandate that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The case, Cabrera v. Acevedo.

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Courts in general

Law - Student loan bankruptcies a growing national concern; would cutting law school tuition prevent or lower student loan bankruptcies?

"Student loans seen as potential ‘next debt bomb’ for U.S. economy" is the headline to this March 10th story by Eric Pianin in the Washington Post that begins:

Bankruptcy lawyers have a frightening message for America: They’re seeing the telltale signs of a student loan debt bubble that is placing increased financial pressure on families struggling with their children’s mounting debt.
The blog Above the Law had a long entry March 9th by Christopher Danzig headed "How Stanford Law School Could Cut Tuition and Save the World." In it, the suggestion is made that: "Stanford Law School should immediately reduce tuition for its J.D. students by 30 percent."

The result predicted: "It would be a domino effect for large-scale law school tuition slicing."

ILB: Of course, Stanford is a private school with a large endowment.

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Wells Fargo Bank, N.A., successor in interest to The Money Store Investment Corp., f/d/b/a First Union Small Business Capital v. Neal A. Summers, et al. (NFP
)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Update on IDCS v. South Bend Tribune

The ILB has learned that the Tribune and AG Zoeller (representing DCS) have resolved their issues, so there will be no argument at 2 today. Here is what the just filed AG's motion says:

APPELLANT’S AGREED MOTION TO DISSOLVE STAY AND DISMISS APPEAL
“Attorney General on behalf of the Department of Child Services has determined not to pursue this appeal at this time, and moves to dissolve the March 9, 2012, Stay, and dismiss the appeal. Undersigned counsel has consulted with counsel for the Appellee, who has agreed to this motion.”

(AG submitted, with signature of Stephen R. Creason, chief counsel)

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending March 9, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Feb. 24, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, March 9, 2012. It is one page (and 19 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Indiana Transfer Lists

Catch-up: What did you miss over the weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?

But first, didn't you check the ILB a lot last week? Then please make the move to supporting the ILB.

From Sunday, March 11, 2012:

From Saturday, March 10, 2012:

From Friday afternoon, March 9, 2012:

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/12/12):

Thursday, March 15th

Next week's oral arguments before the Supreme Court (week of 3/19/12):

Thursday, March 22ndh

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/12/12):

Monday, March 12th

Tuesday, March 13th

Next week's oral arguments before the Court of Appeals (week of 3/19/12):

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, March 12, 2012
Posted to Upcoming Oral Arguments

Sunday, March 11, 2012

Not Law - Issues with new Lafayette Journal-Courier paywall

Recently, every time I click on a Lafayette Journal-Courier article after finding it listed in my Google newsreader, I get a little box from the J-C saying (today) "8 free articles left." So what does this mean? Ever? Or per month unless I pay $12 a month?

Here is my gripe. So far, EVERY article I've clicked to read turns out to be a reprint from the Indianapolis Star! I already pay for the Star (and a number of other papers). So I have no idea if the J-C has enough original law-related reporting that I'd care to pay $12/month to read it and mention it on the ILB.

So far, the answer is a resounding NO. And too bad, as they have an excellent courts/crime reporter, Sophia Voravong.

[More at 6:10 PM] Okay, I just clicked another link. It led to a blank page! And the little box from the J-C now says "7 free articles left."

And when I clicked to reload the page to see if the story would appear (it didn't), the counter moved to "6 free articles left."

Posted by Marcia Oddi on Sunday, March 11, 2012
Posted to General Law Related

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

The long, front-page story in today's Sunday Indianapolis Star is subheaded: "Before deadly stage rigging collapse in August, police and fair officials decided to delay Sugarland show due to storm. But no one did." The story moves step-by-step through the time-line of the incident.A sample:

The sky grew darker, the winds whipped faster and precious seconds were ticking away when State Police Capt. Brad Weaver spoke to the executive director of the Indiana State Fair Commission on Aug. 13 in front of the Hoosier Lottery Grandstand.

It was nearing 8:45 p.m., and Weaver was telling Cindy Hoye that the Sugarland concert had to be delayed and the stands cleared. She seemed to agree.

"Cindy knew how I felt about this, which is that we should move people out of the stand(s)," Weaver said in an interview with the Indiana Occupational Safety and Health Administration. "I fully understood that we were going to move people out of the stand." * * *

"I said, 'It's not my show, not my site, not my call, but we should get the people out,' " Weaver told IOSHA.

An evacuation was never ordered. * * *

Documents from the IOSHA investigation, a deposition and interviews with The Indianapolis Star reveal that as early as 8 p.m., fair officials made the decision to delay the show.

The documents strongly suggest that while Hoye and Weaver understood the need to evacuate, Hoye -- who appears to have had final authority -- may have deferred to Sugarland.

How a public safety issue apparently was decided by a country music duo -- with its own interests to consider -- is not explained by the investigation.

Nor had it been previously suggested.

In the days after the collapse, the State Fair Commission never mentioned Sugarland's consideration of a delay. Instead, fair officials said Hoye and Weaver made the decision to evacuate but the storm hit before they could execute it.

Posted by Marcia Oddi on Sunday, March 11, 2012
Posted to Stage Collapse

Ind. Gov't. - More on: Are daily police logs now being made available to the public adequate under public access law?

Updating this ILB entry from March 4th, the South Bend Tribune, which wrote the story quoted in the March 4th entry, editorializes today on the need for local police officials to comply with the law. It concludes:

Public access laws are in place for good reason. St. Joseph County and Mishawaka police need to deal with whatever technological or other difficulties keep them from producing a satisfactory log and comply with the law.

Posted by Marcia Oddi on Sunday, March 11, 2012
Posted to Indiana Government

Ind. Courts - "Vanderburgh Co. Superior Court makes history with Friday vote"

Jeffery Smith reports in a brief story for WFIE 14 News:

The Vanderburgh County Superior Court made history with their vote Friday.

Superior Court Judge Mary Margaret Lloyd was selected by her fellow judges to serve as Chief Judge of the Vanderburgh County Superior Court, the first female to be elected into the position.

As Chief Judge, Lloyd will be responsible for the administrative operations of the court system, in addition to her regular responsibilities as a judge. * * *

Lloyd also holds the distinction of being the first female judge in Vanderburgh County.

Posted by Marcia Oddi on Sunday, March 11, 2012
Posted to Indiana Courts

Ind. Gov't. - "Deputies at the LaPorte County sheriff’s department may soon be deciding whether or not to engage in a possible lawsuit with a senator"

That quote is from a story in the March 9th LaPorte Herald Argus, reported by Matt Fritz. More from the story:

La Porte County Sheriff Michael Mollenhauer and merit board members are going to be asking deputies what they think about cutting out merit pension pay to former matron Lauren Arnold.

During a merit board meeting Thursday, board member Jim Kimmel said Lauren, the wife of current state Sen. Jim Arnold, was receiving merit pension money in the amount of about $6,000 a year, despite never being a deputy. She was the matron under her husband when he served as sheriff.

Kimmel said an opinion from Ice Miller, legal counsel in 2009, was not clear-cut in regard to whether the county would win the case in court, but he pointed out it appears to be against the department’s policy to allow it to a non-deputy.

He said the current sheriff could opt to take it away, but then there almost certainly would be a lawsuit from Arnold, which the department would have to defend in court, possibly at the cost of $200,000.

That money would have to come out of the pension account.

“My opinion, the former sheriff pulled one off on us,” Kimmel said. “But is it worth paying huge lawyer fees to prove a point?”

Deputies at the meeting were overwhelmingly in support of stopping the pension payment.

There's more of interest in the story ...

Posted by Marcia Oddi on Sunday, March 11, 2012
Posted to Indiana Government

Ind. Decisions - 7th Circuit gives Chicago homeowner OK to sue lender over HAMP denial

Ameet Sachdev, Chicago Tribune reporter, had this story March 9th. The subhead: "Woman alleges Wells Fargo broke promise to permanently reduce her loan payments after 4-month trial under the Home Affordable Modification Program." The story begins:

A Chicago homeowner who was denied participation in a federal mortgage modification program can sue her lender for fraud and other claims, a federal appellate court said this week.

Lori Wigod sued Wells Fargo in 2010 after the bank had deemed her ineligible for the Home Affordable Modification Program, or HAMP. Wigod alleged that Wells Fargo had broken a promise in 2009 to permanently reduce her loan payments on a more than $700,000 mortgage after giving her a four-month trial modification.

U.S. District Judge Blanche Manning threw out her complaint last year, ruling that Wigod's claims were barred by federal law.

The 7th Circuit U.S. Court of Appeals, in an opinion released Wednesday, overturned Manning's decision and revived most of Wigod's suit. The ruling is likely to send shivers through the banking industry, which up until now has largely been shielded from HAMP-related lawsuits.

"It's a real victory for homeowners," said Steven Woodrow, of Chicago law firm Edelson McGuire, who represents Wigod. "The 7th Circuit should be commended for sticking up for the rights of borrowers."

Here is the 75-page, March 7, 2012 opinion, authoried by Judge Hamilton, in Lori Wigod v. Wells Fargo Bank.

Posted by Marcia Oddi on Sunday, March 11, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Golf carts on county roads adopted, three years later

SEA 113 is on its way to the Governor. For background, see this ILB entry from Jan. 8, 2012. (Here is a long list of all ILB golf cart entries.)

Here is the CCR synopsis:

Synopsis: Golf carts in unincorporated areas. Conference committee report for ESB 113. Provides that an ordinance authorizing the use of golf carts in a county: (1) must require that an individual who operates a golf cart in the county hold a driver's license; (2) must provide that a fine assessed for a violation of the ordinance be deposited in the general fund of the county; (3) must set a limit as to the number of passengers (other than the operator) that may be permitted on a golf cart; and (4) may allow an operator of a golf cart to cross a highway in the state highway system, at right angles, in order to travel from one highway under the jurisdiction of the county to another highway under the jurisdiction of the county when the operation can be done safely. Specifies that a violation of an ordinance governing the use of a golf cart on a state highway in a county is considered an ordinance violation (instead of a Class C infraction). (This conference committee report deletes language concerning the use of a golf cart on a highway under the jurisdiction of the county or on a highway in the state highway system from sunset to sunrise if the golf cart has working headlights and taillights in use.)
Golf carts on county roads were authorized in the law adopted in 2009. But in the 2009 special session that followed, a "surprise" amendment in the budget bill narrowed the application of the new law.

This March 8, 2012 story by Mark Stalcup in the Greene County Daily World, headed "Linton may change golf cart ordinance," illustrates how towns that have adopted golf cart ordinances since the 2009 authorization are now, with experience, finding ways to tailor those requirements.

Posted by Marcia Oddi on Sunday, March 11, 2012
Posted to Indiana Law

Saturday, March 10, 2012

Ind. Laws - Still more on what passed - environmental and regulatory

HEA 1002, "Elimination of commissions, boards, and committees," is not yet available in Enrolled Act form, but is 167 pages in its engrossed form. The new law repeals the air, water and solid waste boards, effective Jan. 1, 2013, and replaces them with a single"environmental rules board," by way of SECTION 72, which takes effect July 1, 2012. The new board has 16 members, 5 of them ex officio. Of the remaining 11 members, one shall represent environmental interests. The board may appoint a non-voting technical secretary and legal counsel from names approved by the governor. Non-ex officio board members are entitled to state per diem and travel, as are the secretary and counsel.

HEA 1091 is the agricultural nuisance act, which provides that if a court finds that the prosecution or defense of a nuisance action brought against an agricultural operation was frivolous, the court shall award court costs and reasonable attorney's fees to the prevailing party.

HEA 1280 deals with "regulatory matters." Here is the CCR version.

SEA 311 concerns cost benefit analysis for administrative rules. [ILB note: Although this law, like past legal requirements that OMB or other entities do a fiscal or cost benefit analysis of proposed rules, in reality it is the agency proposing the rulemaking itself that does the analysis ... ]

Posted by Marcia Oddi on Saturday, March 10, 2012
Posted to Indiana Law

Not law - Two great stories on followups to tornado damage in SE Indiana

Charles Wilson of the AP: "Volunteers, official and unofficial, swarm southern Indiana following fatal tornado outbreak."

Maureen Hayden of CNHI: "SOCIAL RAMIFICATIONS: Twitter, Facebook connecting willing givers to disaster victims."

Posted by Marcia Oddi on Saturday, March 10, 2012
Posted to General News

Ind. Courts - South Bend Tribune required to remove published story that was based on records released by trial court order

Late yesterday afternoon the ILB read and posted the first few paragraphs of a story that had been then just posted on the South Bend Tribune website. This was the fifth paragraph of the long and powerful story:

A judge ruled in The Tribune’s favor in a public records request opposed by DCS attorneys for copies of the hotline recordings and transcripts involving the ... death of XXXXXXXXXXXX. The files were released to The Tribune this week.
Shortly thereafter, the story was removed from the SBT website.

Tim Evans reports this morning in the Indianapolis Star:

The Indiana Court of Appeals approved an emergency request Friday from the Department of Child Services that prevents the South Bend Tribune from publishing a story based on the recording of a call made last year to the state's child abuse hotline.

On Tuesday, a St. Joseph County judge ordered DCS to release a copy of the May call to the hotline alleging 10 children were being abused in a South Bend home.

The Tribune briefly posted a story on its website based on the tape, along with audio clips from the 20-minute call. Both were removed after the appeals court ordered a stay of the local court order late Friday afternoon.

The Court of Appeals also set a hearing on the matter for Monday. * * *

The fight comes just one day after lawmakers gave final approval to Senate Bill 286. Included in the legislation addressing a number of DCS policy issues is a provision making recordings of calls to the hotline confidential unless a judge orders the information to be released.

Gov. Mitch Daniels could sign or veto the bill. The governor's spokeswoman, Jane Jankowski, said Daniels had no comment on the legal dispute.

DCS Director James Payne repeatedly has pledged that the agency would be open and transparent.

But one critic of the agency, Dawn Robertson of the family-rights group HonkForKids.com, says that has not been her experience.

"I've heard Director Payne say over and over how DCS would be open and transparent," she said. "In the years since, families we have worked with have repeatedly run into hurdles just getting their own records.

The South Bend Tribune's story today, published instead, is headed "State court blocks DCS hotline story: Tribune to argue Monday for right to report on call before boy was tortured, killed." It is reported by the two authors of yesterday's story, Mary Kate Malone and Virginia Black, who have been investigating and publishing a series of stories on the DCS for more than month. Some quotes from the must-read story:
SOUTH BEND - The Indiana Court of Appeals granted a request Friday that prevents The Tribune from publishing records the newspaper obtained from the Department of Child Services.

The appeals court’s ruling came three days after a local judge ordered the release of phone records from DCS’s child abuse hotline related to 10-year-old Tramelle Sturgis and his family — ending weeks of DCS legal efforts to keep them out of the public realm.

The records include four audio recordings of hotline calls and accompanying transcripts related to Tramelle, who was found tortured and killed in his home Nov. 4.

But an hour after The Tribune published a story on its website Friday that described one of the phone calls and raised related issues, the appeals court granted the emergency stay DCS requested to prevent The Tribune from publishing the material.

On advice from its attorney, The Tribune removed the story from its website and is forced to refrain from publishing information about the content of the calls. If it does otherwise, the newspaper could be held in contempt of court.

“I am saddened by today’s ruling that delays us from telling this important story,” said Kim Wilson, The Tribune’s president and publisher. “We will continue to fight to provide additional insight and information that might help our community to prevent future tragedies such as the untimely death of Tramelle Sturgis last year.”

A hearing on the matter is scheduled for 2 p.m. Monday in Indianapolis. The court will hear arguments from DCS and The Tribune, with each side given 20 minutes to make its case.

‘Patently unconstitutional’?

In a motion filed Friday afternoon objecting to DCS’s motion for an emergency stay, Tribune attorney Gerald Lutkus argued the U.S. Supreme Court has consistently struck down efforts to restrain the media from publishing information, whether temporarily or permanently.

“The stay requested by DCS is patently unconstitutional in that it is a classic prior restraint on the press,” Lutkus wrote in his motion.

Steve Key, executive director of the Hoosier State Press Association, said it is “very rare” for a court to grant such an order.

“Anytime the government steps in to prevent newspapers from publishing information that they legitimately obtained, it raises huge first amendment issues,” Key said.

He said DCS’s attempt to keep The Tribune from publishing stories on records it already has in its possession is like “trying to put the genie back in the bottle after you’ve let it loose.”

ILB: Here is the 2-page Order issued by Chief Judge Robb of the Indiana Court of Appeals yesterday. The operative language:
Appellant's Verified Emergency Motion to Stay Order Granting Access to Public Records is GRANTED pending further order of this Court. The March 6, 2012 Order Granting Access to Public Records issued by the Honorable Peter J. Nemeth, Judge of the st. Joseph Probate Court, is HEREBY STAYED pending further order of this Court.
Appellant's Verified Emergency Motion to Stay Order Granting Access to Public Records will be heard on Monday, March 12, 2012, at 2:00 p.m., Indianapolis time. The hearing will be held in the Court of Appeals Courtroom, Room 413, State House. It is CAUSE NO. 71A03-1203-JM-I06.

Here is the DCS 5-page petition for an emergency stay of the trial court order. Here is the 2-page South Bend Tribune response.

Posted by Marcia Oddi on Saturday, March 10, 2012
Posted to Indiana Courts

Ind. Law - More on what passed [Updated]

Here is more on what passed.

SEA 97 - public intoxication.

HEA 1033 - changes to last year's "expungement" law. Here is the CCR report.

HEA 1003, public records, which now includes the text of HB 1093. For details, see the lengthy synopsis to the CCR.

[Update at 12:30 PM] Sorry, the ILB has been offline for several hours due to a problem at the server provider. Hopefully all is well now. I did intend to write on 1002 (repeal of environmental boards), but that will have to wait now.

Posted by Marcia Oddi on Saturday, March 10, 2012
Posted to Indiana Law

Ind. Law - Some of what passed yesterday, and what didn't

SEA 1, the "Barnes" bill. Dan Carden has the story in the NWI Times. The headline: "Bill clarifying self-defense rights vs. police approved." Note: as of this writing, the Enrolled Act is not available, so look at the CCR for the final text.

SEA 293, phase-out of inheritance tax. Niki Kelly has brief story here in FWJG. Again, for now see the final text in the CCR.

HEA 1149, Smoking Ban. Chris Sitich has the story here, in the Indianapolis Star. Again, for now see the final text in the CCR.

"Specialty license plates appear safe for now," is the heading to Mary Beth Schneider's story today in the Indianapolis Star. SEA 257 (CCR) now creates a summer study committee.

HEA 1171, the bill "to intervene in a lawsuit between two Fort Wayne car dealers," was enacted according to the Niki Kelly FWJG story. The House concurred in the Senate amendments, so the engrossed printing is the final version until the enrolled act is printed.

Watch for addition ILB entries on bills that passed this session.

Posted by Marcia Oddi on Saturday, March 10, 2012
Posted to Indiana Law

Friday, March 09, 2012

Ind. Courts - "David Camm attorneys ask that prosecutor be barred from helping replacement"

Updating this long list of earlier David Camm entries, Harold Adams of the Louisville Courier Journal reports:

The legal wrangling over how much involvement Floyd County Prosecutor Keith Henderson may have in a third trial of David Camm did not end when the Indiana Court of Appeals ordered Henderson off the case because of a conflict of interest.

A hearing will be held April 18 on a motion by Camm’s attorneys asking that Henderson be barred from helping Special Prosecutor Stanley Levco, who was appointed to replace him.

They want Henderson to merely hand the files to Levco and then step aside. * * *

Special Judge Jonathan Dartt last month ordered Henderson’s office to transfer the case file to Levco and to “fully cooperate in his review and investigation of the file and this case,” according to the motion by Camm attorneys Stacy Uliana and Richard Kammen.

They argue that Dartt’s order goes against the law of the case and “the spirit of the Indiana special prosecutor statute.”

Permitting Henderson to consult and advise with Levco would allow the banned prosecutor “to inject his tainted perceptions and thus his conflict into the third prosecution” of the former Indiana State Police trooper, the Camm motion says.

In a brief interview, Levco said he would contest the motion. He declined to say how much help from Henderson he might be seeking. * * *

Camm’s attorneys request that no current or former employees of Henderson’s office be allowed to consult with Levco or his staff “regarding any facet of trial strategy.” They also ask that Henderson be prohibited from sharing with Levco the manuscript of his book.

Posted by Marcia Oddi on Friday, March 09, 2012
Posted to Indiana Courts

Law - "The Coming Crash in Legal Education: How We Got There, and Where We Go Now."

From the Volokh Conspiracy, a review by Kenneth Anderson of a new paper titled "The Coming Crash in Legal Education: How We Got There, and Where We Go Now. ." According to the review, only if you are "sitting as a student or professor at one of the T-14 schools" will this paper not predict very bad times ahead. BTW, "T-14" means the top 14 first tier schools. No Indiana law schools are in the T-14.

Posted by Marcia Oddi on Friday, March 09, 2012
Posted to General Law Related

Ind. Gov't. - "'[HEADLINE REMOVED]"

A new story posted this afternoon to the South Bend Tribune website, reported by Virginia Black and Mary Kate Malone, begins:

[ILB update on March 10th] The link no longer works because the South Bend Tribune was required to remove the story. For why, see this ILB post from today. The ILB has removed, for now, all quotes from the SBT story (including the headline) except for this 5th paragraph:

A judge ruled in The Tribune’s favor in a public records request opposed by DCS attorneys for copies of the hotline recordings and transcripts involving the ... death of XXXXXXX. The files were released to The Tribune this week.

Posted by Marcia Oddi on Friday, March 09, 2012
Posted to Indiana Government

Ind. Decisions - A second Supreme Court opinion today

In Indiana Department of State Revenue v. Rent-A-Center East, Inc., a 7-page, 5-0 opinion, Chief Justice Shepard writes:

The Indiana Department of State Revenue conducted an audit of a taxpayer corporation, concluded that the corporation’s 2003 tax return did not fairly represent its income from Indiana sources, and proposed an assessment of additional tax liability. On the corporation’s appeal of the Department’s final determination, the Indiana Tax Court granted the corporation’s motion for summary judgment. We reverse and remand. * * *

The Tax Court required additional designated evidence, beyond the proposed assessment, in order for the Department to make its prima facie showing under Trial Rule 56(C). Because this was error, we reverse and remand so that the Tax Court may consider the motions for summary judgment on their merits in light of all the designated evidence the parties may tender.

Posted by Marcia Oddi on Friday, March 09, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In R.L. Turner Corporation v. Town of Brownsburg, a 15-page, 3-2 opinion, Chief Justice Shepard writes:

The trial court granted a petition for attorneys’ fees in this case after it dismissed appellant R.L. Turner Corp.’s suit against the Town of Brownsburg. Turner has contended, principally, that the court “had no jurisdiction” to act once the dismissal had occurred. This misapprehends the nature of jurisdiction. We affirm, as did the Court of Appeals. * * *

Sullivan and David, JJ., concur. Rucker, J., concurs in part and dissents in part with separate opinion in which Dickson, J., joins.

Posted by Marcia Oddi on Friday, March 09, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today

In U.S. v. Raupp (SD Ind., Pratt), a 22-page, 2-1 opinion (including a dissent beginning on p. 10 of 22), Chief Judge Easterbrook writes:

Anthony Raupp pleaded guilty to possessing a firearm despite his status as a felon. 18 U.S.C. §922(g)(1). The district court concluded that Raupp is a “career offender” under the Sentencing Guidelines because he has at least two other convictions for crimes of violence. U.S.S.G. §4B1.1. This appeal, from the sentence of 100 months’ imprisonment, presents a single question: Whether a conspiracy to commit robbery is a “crime of violence” under the Guidelines.

Robbery in Indiana is a “crime of violence” under the Guidelines and a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. §924(e). See United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005). Raupp was convicted under Ind. Code §35-41-5-2 of conspiring to violate Ind. Code §35-42-5-1, Indiana’s robbery statute. An application note to U.S.S.G. §4B1.2, which defines the phrase “crime of violence”, tells us that an inchoate offense such as conspiracy is a “crime of violence” when the underlying crime is one. This note reads: “ ‘Crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” That disposes of this appeal, as far as the Sentencing Commission is concerned.

Raupp asks us to ignore the application note. He contends that it has been superseded by Begay v. United States, 553 U.S. 137 (2008), and later decisions. * * *

Raupp was free to contend that a conviction for conspiracy to commit robbery does not imply the same level of dangerousness as a conviction for robbery, and to seek a lower sentence on that account. But he does not assert that the district judge misunderstood the extent of her discretion or exercised it unreasonably. His sole contention is that district judges must ignore the first application note to §4B1.2, and that contention does not carry the day. Affirmed.

Judge Woods, dissenting: [concludes] When an agency like the Sentencing Commission uses a regulation as a springboard for an “interpretation” that goes beyond the boundaries of the original regulation, Auer and Stinson tell us that it has gone too far. That is exactly what the Sentencing Commission did here, when it decided that the phrase “presents a serious potential risk of physical injury to another” could be stretched to include Indiana’s inchoate offense of conspiracy to commit robbery. In my opinion, it cannot, and so I would find that Raupp is entitled to be resentenced without being classified as a career offender. I therefore respectfully dissent.

Posted by Marcia Oddi on Friday, March 09, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Town of Griffith and the Griffith Fire Department v. T.M. Somers Fire Equipment, Inc. (NFP)

A.V. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (1):

Kenneth A. Lainhart v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 09, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - Last year's vetoed forfeiture bill is on the Senate calendar today for override vote

Here is today's calendar, the bill is SEA 215-2011.

Here is the Governor's veto message from 2011:

By the authority vested in me as Governor of Indiana, under the provisions of Article 5, Section 14, of the Constitution of the State of Indiana, I do hereby veto Senate Enrolled Act 215, enacted during the regular session of the 117th General Assembly, as violative of the Indiana Constitution, which provides that the proceeds from “all forfeitures” shall go to the Common School fund.

The Indiana Supreme Court, on April 27, reinforced that point, possibly excepting the “limited diversion” of the actual expenses of obtaining those proceeds. Fairness to the General Assembly requires noting that legislators did not have the benefit of the court’s opinion, which was issued in the session’s final days.

This bill would take more than ninety cents of every dollar collected through forfeiture for the “expense of collection” rather than sending it to the Common School fund. That is unwarranted as policy and constitutionally unacceptable in light of the Supreme Court’s recent guidance and the plain language of Article 8, Section 2 of the Indiana Constitution.

For background, begin with these ILB entries:

Posted by Marcia Oddi on Friday, March 09, 2012
Posted to Indiana Law

Ind. Gov't. - "Lawmakers dropping Rockport issue as session nears its end"

So reported Eric Bradner, the Evansville Courier & Press statehouse reporter who has been following this issue closely, yesterday afternoon. The lengthy story begins:

Developers of the Rockport, Ind. coal-to-gas plant do not need state lawmakers’ help to get a 20-year, $120 million tax credit, after all.

Instead, the Indiana Department of Revenue – an agency under the watch of Gov. Mitch Daniels, a champion of the $2.6 billion plant – will rule on whether the tax credit applies. The agency’s likely answer: Yes.

It’s a work-around to avoid asking reticent legislators to once again change the law to help push forward a plant that Daniels calls a great deal, but Vectren Corp. and other Indiana utilities say will drive ratepayers’ bills upward.

Key Republican fiscal leaders said the Daniels administration had opted to try for that “administrative fix” to forestall potential lawsuits over the tax credit, instead of pressing lawmakers on the issue as the 2012 legislative session reaches its end.

Senate Appropriations Committee Chairman Luke Kenley, R-Noblesville, said legislation related to the tax credit won’t make its way into a bill.

For background, start with this March 4th ILB entry.

Posted by Marcia Oddi on Friday, March 09, 2012
Posted to Indiana Government

Ind. Courts - Still more on: What has become of the State-IBM trial in Marion Superior Court?

Updating yesterday's ILB entry, Carrie Ritchie reports today in the Indianapolis Star, in a story headed "In court, state and IBM spar over welfare system's design." Some quotes:

The design of a failed plan to modernize Indiana's welfare system has become the hot potato at a weeks-long trial in Marion Superior Court.

At issue is whether the state still owes IBM millions for helping it create the billion-dollar system, or whether IBM should refund some of the more than $400 million the state paid.

On Thursday, IBM tried to use testimony by Earl Goode, Gov. Mitch Daniels' chief of staff, to show that the state told IBM how it wanted the system to work and that IBM simply followed the state's orders.

"The state was in complete control of the situation from day one," IBM attorney Steve McCormick said during a break in testimony. "They knew about issues that came up. They expected issues to come up. They had workers in every office. They could see what was going on." * * *

Goode, who was chairman of a committee that reviewed IBM's proposal for the project, said the committee made several suggestions on how to implement the new system. But the proposal was IBM's, he said, and the company didn't follow the state's suggestions -- including one that called for more staff members to work with people who were having trouble with the automated system or didn't want to use it.

"We really did believe that . . . we needed to have a state-of-the-art, modern technology in this part of our division of family services, but we also wanted to be very user-friendly and be very accessible to all the folks that want . . . our services," Goode said after his testimony. "The original proposal was much more technology-centric as opposed to people-centric."

Had IBM followed the state's suggestions, it would have ended up with a system similar to the hybrid one the state now uses, said attorney Peter Rusthoven, who is representing Indiana's Family and Social Services Administration in the suit.

The hybrid system, which allows people to choose whether to use an automated system or speak with a staff member, is working well, Rusthoven said.

The state will continue to present evidence and witnesses for several days. IBM's witnesses will follow. The trial is scheduled to last up to six weeks.

The lengthy bench trial is presided over by Marion Superior Court Judge David Dreyer.

Posted by Marcia Oddi on Friday, March 09, 2012
Posted to Indiana Courts

Thursday, March 08, 2012

Vacancy on Supreme Court 2012 - WFYI on Indiana Chief Justice Randall Shepard

No Limits is WFYI Public Radio's weekly news and public affairs program. Hosted by John Krull, director of Franklin College's Pulliam School of Journalism, No Limits focuses on the hot topics of interest to Central Indiana residents.

Here are two recent hour-long shows of interest, available for listening:

Posted by Marcia Oddi on Thursday, March 08, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - Comment on a number of proposed rules until May 9th

An opportunity to comment on proposed changes to the Rules of Court:

The Indiana Supreme Court Committee on Rules of Practice and Procedure is seeking comment on a number of proposed rules. You can learn details about the proposals online, but generally the proposals include changes to the following:

1. Business Counsel License: Admission and Discipline Rule 6 § 2 and Professional
2. Change of Venue in Criminal Cases: Criminal Rule 12(D).
3. Change of Venue in Civil Cases: Trial Rule 76.
4. Acceptance of service by FAX or e-mail: Trial Rules 3.1, 5 and 72.
5. Selection and Unavailability of Special Judges: Trial Rule 79.
6. Continuing Legal Education: Admission and Discipline Rules 28, 29, and Mandatory Continuing Education and Mandatory Judicial Education Guidelines, and Alternative Dispute Resolution Rule 2.

Thank you for taking the time to review the proposed rules. The Committee will accept comments until May 9, 2012.

Sincerely,

Lilia Judson
Executive Director, Division of State Court Administration

Posted by Marcia Oddi on Thursday, March 08, 2012
Posted to Indiana Courts

Ind. Law - More on "Specialty license plate bill may be revived by GOP"

Updating this ILB entry from March 8th, it now looks like rather than attempting to change the specialty plate law, according to a new IndyStar story:

Opponents of a specialty license plate for a gay youth support group are now trying to void the group’s contract with the Bureau of Motor Vehicles.

Lawmakers had attempted to eliminate the Indiana Youth Group plate while also reining in the proliferation of specialty plates. Republicans had tried Wednesday to revive legislation to do that which earlier had died in the House.

But some lawmakers were reluctant to cram through in the final day of this session legislation that hadn’t passed either the House or Senate. While legislative leaders did not officially declare the effort to pass a bill dead, Senate President Pro Tempore David Long said another “solution” had been found: Voiding the Indiana Youth Group plate.

Long said he believed the Indiana Youth Group had violated its state contract and that it should be cancelled. * * *

Graig Lubsen, communications director for the Bureau of Motor Vehicles, said no decision has been made about the Indiana Youth Group contract. He said someone from the Senate had contacted the BMV about the contract issue this morning.

Lubsen said the contract bars groups from auctioning or selling the plates. But he added that traditionally, the BMV has allowed group to give out low-numbered plates as thank-you gifts to donors.

The IYG had filed a lawsuit to win its specialty license plate after repeatedly meeting the state requirements yet being denied. It now has a five-year contraact for the plate, and currently is the highest-selling plate among the 10 the state awarded this year. As of Wednesday, 588 IYG plates had been purchased. The next highest-seller among the new groups was 251 for the Tony Stewart Foundation with the smallest number, 15, sold by the Indiana Association of Chiefs of Police Foundation.

Really, aren't there more important issues for the General Assembly to address, rather than bullying a gay youth group over its legally obtained specialty plates?

Posted by Marcia Oddi on Thursday, March 08, 2012
Posted to Indiana Law

Courts - "Inside Merit Selection: A National Survey of Judicial Nominating Commissions"

Announced Tuesday and released to the public today, this 84-page report is written by Rachel Paine Caufield and published by the American Judicature Society. A few items from p. 4 of the summary of survey results:

• Regarding Commissioners’ assessments of the process, there is wide agreement that the merit selection process is fair, that it works to promote highly-qualified individuals for service on the bench, that it appropriately constrains the power of the governor, and that it helps to minimize the role of partisan politics. Overwhelmingly, Commissioners believe that their service is worthwhile, and there is broad support for the proposition that merit selection is preferable to contestable judicial elections.

• Of those who responded to the survey, there is widespread agreement that party affiliation and other political considerations are generally not important in the process of selecting individuals for recommendation to the governor (or other appointing authority).

• Commissioners agree that lawyer members and non-lawyer members have very positive working relationships, and that members work together and respect input from their peers.

• Diversity is generally recognized as a goal of the Judicial Nominating Commissions, although respondents also say that race, gender, and sexual orientation are generally not important considerations in the decision-making of their Commission.

Posted by Marcia Oddi on Thursday, March 08, 2012
Posted to Courts in general

Ind. Decisions - 7th Circuit decides one Indiana case today

In U.S. v. Spears (ND Ind., Simon), a 20-page opinion, Circuit Judge Williams writes:

On August 1, 2008, a magistrate judge issued a search warrant for the home of Marlon K. Spears, which law enforcement officers executed five days later. Spears was arrested and charged with possessing 100 or more marijuana plants with intent to distribute, being a felon in possession of a firearm, and maintaining a place for the manufacture and distribution of marijuana. He filed multiple motions to suppress the evidence obtained from the search, challenging numerous statements made in the affidavit accompanying the warrant application, including: (1) statements about finding a marijuana stem during a “trash pull”; (2) the existence of PVC piping at Spears’s home; (3) the affiant’s statements that she “received information from” the Northern Indiana Public Service Company (“NIPSCO”) about Spears’s power usage; and (4) statements made about Spears’s criminal history, namely, that he had one in the state of Indiana. The district court eventually conducted a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). After hearing testimony, the district court found that the warrant did not contain any material false statements that were made intentionally, and denied the motion. The court also found that the warrant did not otherwise lack probable cause.

Spears was convicted of all three counts following a jury trial. He now appeals, arguing that the district court erred in denying his Franks motion to suppress evidence. We find that the district court did not clearly err in finding no Franks violation with respect to the statements made about the marijuana stem discovered in the trash and the existence of piping at Spears’s home. We decline to reach Spears’s arguments regarding the inclusion of the electricity usage information and his criminal history because we find that even if those portions are stricken, the remaining elements of the affidavit support a finding of probable cause. We therefore affirm Spears’s conviction.

Posted by Marcia Oddi on Thursday, March 08, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on: What has become of the State-IBM trial in Marion Superior Court ?

Updating the ILB entry from March 6th, @Carrie Richie of the Indianapolis Star just tweeted:

At trial 4 lawsuits over cancelled $1.37bil welfare modernization contract w/IBM. Gov. Mitch Daniels' chief of staff, Earl Goode, testifying

Posted by Marcia Oddi on Thursday, March 08, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

For publication opinions today (4):

In Term. of the Parent-Child Rel. of K.E., and T.E. and J.E., T.E. and J.E. v. Indiana Dept. of Child Services , a 5-page opinion, Judge Kirsch writes:

T.E. (“Mother”) and J.E. (“Father”) appeal the involuntary termination of their respective parental rights to their child, K.E., contending, inter alia, that the trial court’s judgment terminating their respective parental rights must be reversed because the Indiana Department of Child Services failed to satisfy the statutory mandates of Indiana Code section 31-35-2-4(b)(2)(A). We reverse and remand.
In United Brotherhood of Carpenters and Joiners of America, Local Union No. 2371, Official Bargaining Agent, et al. v. Merchandising Equipment Group, Div. of MEG Manufacturing Corp., et al. , a 12-page opinion, Judge Vaidik writes:
In 2011, the trial court granted the defendants’ Trial Rule 41(E) motion to dismiss for failure to prosecute after the case had been pending for eighteen years, the court failed to rule on the summary judgment motions for fourteen years, and the plaintiffs took no action to push the case to resolution for a decade. The plaintiffs now appeal the dismissal. Given the extensive and unprecedented delay in this case and the plaintiffs’ lack of excuse for the delay, we conclude that the trial court did not abuse its discretion in dismissing this case for failure to prosecute. * * *

We recognize that dismissals are generally disfavored and do not condone the special judge’s failure to rule on the summary-judgment motions for fourteen years. Nevertheless, the burden of moving the litigation is upon the plaintiff, not the court. Given the Union’s decade-long delay and lack of excuse for the delay, we conclude that this case is one of those limited circumstances where dismissal is warranted. We therefore affirm the trial court.

In Gladys E. Curry and Thomas Curry v. D.A.L.L. Anointed, Inc. , a 7-page opinion, the question is whether the trial court properly dismissed palintiff's complaint for injuries and loss of consortium. Judge Kirsch's opinion affirms the trial court's dismissing the complaint for lack of subject matter jurisdiction based on the exclusivity provision of the Indiana Worker’s Compensation Act.

In Pamela J. Hensley v. State of Indiana, a 12-page opinion, Judge Kirsch writes:

Pamela J. Hensley (―Hensley‖) brings this discretionary interlocutory appeal from the trial court‘s denial of her motion to suppress. She raises one issue on appeal, which we restate as whether the search of Hensley‘s home violated her right to be free from unreasonable search and seizure guaranteed under the Fourth Amendment to the United States Constitution. We reverse and remand.
NFP civil opinions today (3):

Guardianship of M.A.M.: D.L.M. v. J.G. (NFP)

James R. Lockhart, Jr. v. Lisa (Lockhart) Guyer (NFP)

Term. of the Parent-Child Rel. of R.H. and D.H., D.H. v. Indiana Dept. of Child Svcs. and Lake County CASA (NFP)

NFP criminal opinions today (7):

Donnell Caldwell v. State of Indiana (NFP)

Lynnette A. Wire v. State of Indiana (NFP)

Jeffery Haugh v. State of Indiana (NFP)

William Estell v. State of Indiana (NFP)

Russell A. Prosser, Jr. v. State of Indiana (NFP)

Richard J. Charlton v. State of Indiana (NFP)

David S. Stover v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 08, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Keith Hoglund v. State of Indiana, a 14-page, 5-0 opinion, Justice Rucker writes:

In this appeal we examine the admissibility of vouching testimony in the context of child sex abuse allegations. We conclude that testimony amounting to the equivalent that a witness believes the child is telling the truth is inconsistent with our rules of evidence. Case authority to the contrary is expressly overruled.

Posted by Marcia Oddi on Thursday, March 08, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Law - FWJG has a legislative status report this morning

From the FWJG editorial page:

Indiana legislators don’t have to end their session until next week, but leaders hope to wrap up business by the end of the day tomorrow – though numerous issues are still pending. Among them:
  • The statewide smoking ban.
  • A bill that seeks to balance the security and privacy of homeowners with police officers who enter homes. ("Barnes" bill)
  • A tax and spending bill that phases out the inheritance tax.
  • Tax credits for a controversial coal plant in southern Indiana that would make synthetic natural gas. ("Rockport")
* * * Another bill that is undoubtedly special legislation – seeking to resolve a dispute between two local auto dealers – is still pending.

Posted by Marcia Oddi on Thursday, March 08, 2012
Posted to Indiana Law

Ind. Law - "Specialty license plate bill may be revived by GOP"

Mary Beth Schneider reports today in the Indianapolis Star:

With the legislative session scheduled to end Friday, Republicans are scrambling to revive a bill targeting specialty license plates -- an issue that had been declared dead only days ago.

The attempt to resurrect the bill has Democrats charging that this is an improper end-run about legislative rules and traditions, aimed at mollifying conservatives who are upset that one of those specialty plates has been given to a support group for gay youths.

Sen. Ed Soliday, R-Valparaiso, said multiple versions of an amendment were being drafted to cut down on the number of specialty plates and put lawmakers in charge of who gets them. The issue is expected to be inserted into Senate Bill 257, which also deals with motor vehicle issues.

Soliday initially changed another bill, Senate Bill 327, to eliminate plates for most of the 10 groups that won them this year, including the Indiana Youth Group for gay youths, the Indianapolis Zoo and the Tony Stewart Foundation. * * *

But he killed SB 327 on Feb. 29, saying that "the thing just became political."

House Speaker Brian Bosma, R-Indianapolis, said last week that "to my knowledge, there is no plan for it to pop up" in another bill.

On Tuesday, Soliday said that "this came out of nowhere. I thought the thing was over. . . . It all blew up in the Senate." But, he said, he did not know what had happened.

It was not clear Wednesday who prompted the issue to be revived, and Soliday said he did not know. Neither Bosma nor Senate President Pro Tempore David Long, R-Fort Wayne, returned calls seeking comment.

House Minority Leader B. Patrick Bauer said legislative rules traditionally have been interpreted as barring any issue from being inserted into another bill in the session's final days if it had not passed either the House or Senate.

Soliday said he'd been told that wasn't a rule, just a "gentleman's agreement."

Rep. Ed DeLaney, D-Indianapolis, retorted that must mean "there are no gentlemen left" in the legislature.

DeLaney is on the joint House/Senate committee discussing SB 257. It had what may be its only public meeting Tuesday, and no mention was made of inserting the specialty plate issue into the bill, he said.

"They're going to distort the whole conference process, they're going to distort the whole legislative process," DeLaney said. "This is, in my mind, really sad that the moderate members of the Republican caucus are being browbeaten by the social conservatives."

ILB: A look at the formal House Rules discloses only:
154.1 Whenever a bill on its passage receives fifty-one (51) votes or more against its passage, the bill, as well as the subject matter of the bill, is decisively defeated, and neither the question nor any bill, conference committee report, or amendment on the same subject matter may be considered again during the session. However, the decisive defeat of a House bill does not prevent later consideration of or action upon a Senate bill on the same subject matter.
There is also:
80. Germane. No motion or proposition on a subject not germane to that under consideration shall be admitted under color of an amendment.

93. Effect of Indefinite Postponement or Tabling. When a question is postponed indefinitely, or when a motion to reconsider has been laid upon the table, neither such question nor any bill, resolution, conference committee report or amendment on the same subject matter shall be considered again during the session. However, the indefinite postponement of or tabling of a motion to reconsider action on a House bill shall not prevent later consideration of or action upon a Senate bill on the same subject matter.

Posted by Marcia Oddi on Thursday, March 08, 2012
Posted to Indiana Law

Ind. Gov't. - "Lake County recorder's documents go digital"

Bill Dolan reports in the NWI Times in a story that begins:

CROWN POINT | Lake County Recorder Michelle Fajman said land records in her office will now be a keystroke away.

Fajman is launching an online records search service Thursday, opening her office's archive of land deeds, mortgages, liens, leases, bankruptcy notices and other business records to the public in a conveniently digital form.

Fajman will roll out the service with a public demonstration from 11 a.m. to noon in the commissioner's courtroom at the Lake County Government Complex, 2293 N. Main St., Crown Point.

Fees for businesses range from $50 to $250 per month. Individuals pay $5.95 to get on the system once and then $1 per page, she said.

The online service will help not only the hundreds of attorneys, and bank and title company representatives who visit her office each day to scan real estate records for business purposes, but also the public, Fajman said.

Posted by Marcia Oddi on Thursday, March 08, 2012
Posted to Indiana Government

Ind. Law - SB 1 (Barnes bill) in conference committee

Niki Kelly (@nkellyatJG) tweets this morning: "With just two days left in the session, neither the House or Senate has voted on a conference committee report yet. Tick tock..."

Mary Beth Schneider (@marybsschneider)tweeted yesterday during the hearing on SB 1: "Unlike most conference committee hearings this one on SB1 is full blown hearing, not negotiations between House, Senate versions."

Here is Lesley Weidenbener's story in this morning's Evansville Courier & Press on yesterday's meeting, headed: "Supporters, opponents weigh in on proposed illegal entry law: Homeowners could resist police in some circumstances."

We likely won't know the language agreed to by the conferees until it is filed as a CCR, to be voted on by both houses. Watch for it here, under the heading Conference Committee Reports.

Posted by Marcia Oddi on Thursday, March 08, 2012
Posted to Indiana Law

Ind. Courts - "Mock trial provides training on coutroom tactics for younger attorneys"

Mark Wilson reports today in the Evansville Courier & Press:

EVANSVILLE — Possibly more attorneys worked on the case being tried in U.S. District Court on Wednesday than any case ever tried there.

Attorneys sat in the witness stands to be examined and cross-examined by other attorneys. In the benches of the audience gallery, dozens of local attorneys listened to the case unfold.

It was all part of a mock jury trial, elaborately staged in Evansville's federal courtroom as a learning exercise for lawyers, particularly young attorneys with limited trial experience. Evansville Bar Association Director Susan Vollmer said the trial was based on a real lawsuit tried in U.S. District Court at Terre Haute several years ago.

Lawyers poured over the original trial transcripts to accurately portray the courtroom testimony. A company was hired to select a pool of jurors from throughout the federal court district.

Chief Judge Richard L. Young, who presides over U.S. District Court for the Southern District of Indiana, presided over original trial and lent his time to preside over Wednesday's exercise too. * * *

"Young lawyers who are in civil litigation, they just don't have as much opportunity to try a jury trial as before," he said.

Part of the reason, Young said, is that the cost of trying cases has encouraged the resolution of more cases by arbitration or mediation. Fewer jury trials has meant fewer chances for attorneys to try them, especially younger ones.

"Many of the more experienced lawyers who have been around love to try jury trials. The older, more experienced lawyers often want to do it," he said.

On Wednesday, some of those more experienced lawyers, including Charlie Berger, Lane Siesky, Pat Shoulders and Cory Kuhlenschmidt, demonstrated their skills in "Anatomy of Jury Trial."

"We are going to try to make it as real as we possibly can for you. We have very experienced trial lawyers here," Young told the audience. * * *


"It is becoming rarer that a case actually gets tried, especially in federal court. There are many young lawyers who have never tried a case or don't know how federal court operates. In 10 to 15 years from now, they will be responsible for mentoring those next attorneys," Siesky said.

Vollmer said her office has fielded calls from as far away as California by people interested in the training. To that end, the mock trial was professionally recorded. * * *

The deliberation was live-streamed into the courtroom so that the audience could get a feel for how a jury might think and act, something they would not be able to observe even in a real trial.

Posted by Marcia Oddi on Thursday, March 08, 2012
Posted to Indiana Courts

Wednesday, March 07, 2012

Ind. Courts - "Task force hearing tonight on Marion Co. small claims court"

Carrie Ritchie writes for the IndyStar:

A task force that’s reviewing Marion County’s small claims court system will hold its final public hearing tonight.

People can share their experiences in the courts and offer suggestions for improvement.

The hearing will begin at 6 p.m. in Marion Circuit Court, which is in the City-County Building, 200 E. Washington St.

See earlier ILB entries here.

Posted by Marcia Oddi on Wednesday, March 07, 2012
Posted to Indiana Courts

Ind. Courts - "Lugar residency ruling appealed"

Brian Francisco posted the story this morning at the Fort Wayne Journal Gazette site. It begins:

Two people have appealed the Indiana Election Commission's recent ruling that Sen. Richard Lugar, R-Ind., is a resident of the state.

Eric C. Bohnet, the attorney for the two, said Wednesday in a news release the appeal seeks an injunction that would prevent election officials from printing ballots for the May 8 primary election until the case is resolved. Lugar is opposed in the Republican primary by state Treasurer Richard Mourdock.

Bohnet said the appeal is based on the U.S. Constitution's residency provision for senators.

"The Constitution requires that Senators be inhabitants of the states that elect them," Bohnet said in a statement. "But Sen. Lugar sold his last Indiana residence almost 35 years ago, and still votes from that old address for his voting registration because he doesn't have anywhere in this state to call home. He's become an inhabitant of Virginia, and thus ineligible to be elected to the Senate from Indiana."

Here is the Bohnet press release, thanks to Election Law Blog.

Posted by Marcia Oddi on Wednesday, March 07, 2012
Posted to Indiana Courts

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

For publication opinions today (2):

In Ronald E. Izynski and Linda Izynski, et al. v. Chicago Title Insurance Company , a 12-page opinion, Judge May writes:

Ronald and Linda Izynski bought real estate in Porter County from Charles Ashton. The land was burdened with an easement that was publicly recorded but was not indicated on numerous versions of a title commitment issued by Chicago Title Insurance Company (Chicago Title). The Izynskis sued Chicago Title for breach of contract and negligence, and after a bench trial the trial court found for Chicago Title. We reverse and remand. * * *

We accordingly reverse and remand for the trial court to determine whether the Izynskis might have an action for negligent misrepresentation against Chicago Title, and if so whether the elements of that tort are satisfied and whether and to what extent the Izynskis sustained damages.

In Angela C. Garrett v. State of Indiana, an 8-page opinion, Judge May writes:
Angela Garrett appeals her conviction of dealing methamphetamine, a Class A felony.1 She argues the trial court should have instructed the jury on the lesser-included offense of possession of methamphetamine. We reverse and remand. * * *

The trial court should have given a lesser-included offense instruction because there was a serious evidentiary dispute about whether Garret had intent to deal methamphetamine. * * *

In this case it is the element of intent to deliver that distinguishes dealing in methamphetamine from the lesser-included offense of possession of methamphetamine. There was a serious evidentiary dispute as to whether Garrett merely possessed methamphetamine or also intended to deliver it. Therefore, the instruction on possession should have been given. * * *

As the jury was not properly instructed, we must reverse Garrett’s conviction and remand for a new trial.

NFP civil opinions today (2):

Deer Park Management v. Giovanni Zanovello (NFP)

Term. of Parent-Child Rel. of M.B., J.B., & T.B.; Y.B. v. Indiana Dept. of Child Services, and Child Advocates, Inc. (NFP)

NFP criminal opinions today (3):

Antwain D. Sanders v. State of Indiana (NFP)

Clinton E. Sams v. State of Indiana (NFP)

Marquis T. Hawkins v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 07, 2012
Posted to Ind. App.Ct. Decisions

Court - Ohio Supreme Court releases style manual for opinions

The Supreme Court of Ohio has released a 174-page "WRITING MANUAL: A Guide to Citations, Style, and Judicial Opinion Writing."

Posted by Marcia Oddi on Wednesday, March 07, 2012
Posted to Courts in general

Ind. Decisions - "Appeals court upholds $990,000 judgment: Crash occurred when motorist waved another on"

The COA Feb. 28th, 2012 opinion in the case of Jacob Key, Ted J. Brown and Sally A. Brown v. Dewayne Hamilton is the subject of a story today by Sam Brattain in the Anderson Herald Bulletin. Some quotes:

ANDERSON, Ind. — An Indianapolis attorney said Tuesday he plans on appealing to the Indiana Supreme Court, after the Court of Appeals upheld a $990,000 judgment against his clients.

In an opinion filed Feb. 28, the court affirmed a Madison Circuit Court decision that Jacob Key and his employers Ted and Sally Brown were responsible for a motorcyclist, who was seriously injured when Key waved another motorist on. * * *

After checking for oncoming traffic, Key signaled to Owens it was clear to turn. As Owens turned onto the highway he was struck by a motorcycle driven by Dewayne Hamilton.

Hamilton was severely injured, and filed a complaint against Key and his employers at Ted’s Plumbing and Ted’s Excavation.

A Madison County jury found in favor of Hamilton.

In the appeal, Judge Nancy Vaidik wrote that Key “owed a duty of care to Hamilton as a matter of law.”

Benjamin Stevenson, an attorney for Key and the Browns, said there is no legal precedent for what happened between Key and Hamilton in Indiana. He added other states who have had similar cases, and have ruled in favor of the motorist waving on traffic.

Posted by Marcia Oddi on Wednesday, March 07, 2012
Posted to Ind. App.Ct. Decisions

Tuesday, March 06, 2012

Ind. Gov't. - More on "Indiana regulators to consider unsealing additional Duke documents in probe of Edwardsport power plant" [Updated]

John Russell of the Indianapolis Star today is covering the review by the IURC of the hundreds of sealed documents, one-by-one, and just tweeted:



[Updated at 8:53 PM] For more, see long Russell entry at Star's BizBuzz, headed "Duke faces sharp questions on secret documents."

[Updated on 3/7/12] Here is the finalized story, from today's Star, headed "Duke grilled by IURC on request to keep documents about Edwardsport plant sealed: IURC challenges utility to show need for keeping Edwardsport power plant documents sealed."

Posted by Marcia Oddi on Tuesday, March 06, 2012
Posted to Indiana Government

Ind. Courts - Two-year clerkship opens with Court of Appeals Judge Baker

The ILB won't be posting all these openings, but this sounds like a great opportunity for the right person:

Two-year clerkship opens with Court of Appeals Judge Baker

INDIANAPOLIS – Judge John G. Baker of the Court of Appeals of Indiana is accepting applications from qualified applicants for a two-year clerkship to begin Sept. 4, 2012. Duties and responsibilities include working with the Judge
and co-clerks to perform legal tasks, including research, writing, and proofreading. Applicants must be comfortable discussing cases and applicable legal precedent.

Law school graduates, members of the bar and third-year law students in the upper 15 percent of their class are encouraged to apply. Law Review and/or Moot Court experience is preferred. Starting salary is $56,375, with benefits.

Submit cover letter, resume and law school transcripts no later than March 15, 2012, to the Honorable John G. Baker, Judge, Court of Appeals of Indiana, Room 419 Statehouse, 200 W. Washington St., Indianapolis IN 46204.

For additional information about the clerkship, please contact Sylvia Alsip.

Posted by Marcia Oddi on Tuesday, March 06, 2012
Posted to Indiana Courts

Ind. Courts - What has become of the State-IBM trial in Marion Superior Court ?

"State-IBM trial over canceled welfare contract began yesterday" was the heading to this Feb. 28th ILB entry quoting stories from the Indianapolis Star and the Fort Wayne Journal Gazette. Nary a news report since, however.

Posted by Marcia Oddi on Tuesday, March 06, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In CBR Event Decorators, Inc., Gregory Rankin, Robert Cochrane and John Bales v. Todd M. Gates , a 14-page opinion, Judge Vaidik writes:

Robert Cochrane, John Bales, and Gregory Rankin, shareholders of CBR Event Decorators, Inc., appeal the trial court’s judgment entered against CBR in favor of Todd M. Gates. The shareholders challenge the trial court’s decision to pierce the corporate veil and hold them personally liable for the judgment against CBR. We conclude that in order to pierce the corporate veil there must be a causal connection between misuse of the corporate form and fraud or injustice. Because there is no such causal connection here, we reverse in part and affirm in part.
NFP civil opinions today (2):

In the Matter of the Civil Commitment of M.B. v. Wishard Health Services Midtown Community Mental Health Center (NFP)

Darrick Scott and Paul A. Watson v. City of Terre Haute, et al. (NFP)

NFP criminal opinions today (4):

John Shocke v. State of Indiana (NFP)

Jamika J. Talley v. State of Indiana (NFP)

Larry Parks v. State of Indiana (NFP)

David A. Bowe v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 06, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Mark J. Thatcher v. City of Kokomo, et al, an 8-page, 5-0 opinion addressing a certified question from Judge Lawrence of the SD Ind., Justice Rucker writes:

Pursuant to Indiana Appellate Rule 64, which allows certification of questions of Indiana law for consideration by this Court, we have accepted the following questions:

1) Does Indiana Code section 36-8-4-7(a) apply to a member of the 1977 Fund1 who is receiving disability benefits and who has been determined to have been recovered pursuant to 35 Indiana Administrative Code section 2-5-5(c)?

2) If yes, does Indiana Code section 36-8-8-12(e) apply to determination of eligibility under Indiana Code section 36-8-4-7(a), such that time spent receiving disability benefits counts toward “years of service” as that term is used in Indiana Code section 36-8-4-7(a)? * * *

Indiana Code section 36-8-4-7(a) applies to a member of the 1977 Fund who is receiving disability benefits and who has been determined to have been recovered pursuant to 35 Indiana Administrative Code section 2-5-5(c). And the time period during which a person receives disability benefits under Indiana Code section 36-8-8-12(e) does not count toward “years of service” as that term is used in Indiana Code section 36-8-4-7(a).

Posted by Marcia Oddi on Tuesday, March 06, 2012
Posted to Ind. Sup.Ct. Decisions

Vacancy on Supreme Court 2012 - Honoring Chief Justice Shepard

Maggie L. Smith of Frost Brown Todd LLC and chair of the ISBA Appellate Practice session, writes to attorneys:

On May 10th, the bench and bar will join together to honor Chief Justice Shepard.

One of the things planned for this event is a “montage” of memorable oral argument moments involving the Chief Justice.

If you know of an oral argument that should be included in this tribute, please let me know ASAP.

I have access to any argument after 2001 (with the exception of arguments heard on the road) so just tell me the case name and what you remember as being memorable from it, and I can take it from there.

Feel free to forward this to anyone you believe may have a memorable moment to share.

Posted by Marcia Oddi on Tuesday, March 06, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Law - As the 2012 General Assembly draws to an end ...

"Finish line is in sight for 2012 session of General Assembly" is the headline to this comprehensive story by Mary Beth Schneider and Chris Sikich in today's Indianapolis Star. The story details some of the bills on the Governor's desk, or on their way, plus what is remaining for concurrence or conference committee action.

ILB: Here are some tools to keep track:

The Fort Wayne Journal Gazette has an editorial today with words of warning, cautioning about the "legislative surprises" seen in past sessions:
[I]n these waning days, lawmakers will also make key decisions on spending and taxes.

Lawmakers are on track to make many of those decisions in one or more broad-ranging bills. History teaches that as likely as not, those bills will be crafted in a conference committee where legislative leaders will make numerous changes just before lawmakers cast a final vote. Not all of the bills’ effects will necessarily be clear and widely known when those final votes are taken.

Leaders should promise to produce final language at least 24 hours before bills face votes in the House and Senate. But with some lawmakers pushing to adjourn by Thursday, the likelihood of clearly understood, transparent bills does not appear strong. * * *

Dozens [of issues] could surface and be tucked into broad-based bills.

While lawmakers hurry to wind up their session, they should strive to make public exactly what they are voting on in the waning days and hours of their annual legislative session. That is not too much to ask.

Finally, another noteworthy story: Tom Davies of the AP reports on the retirement wave in the General Assembly. Some quotes:
The final days of this year's legislative session will see more than a dozen veteran legislators ending their Statehouse careers, setting up the Indiana House to have more than three dozen of its 100 members in their first or second terms when lawmakers next return.

The loss of hundreds of years of experience in the House — including the top Republican and Democratic budget writers — has some worried that paid lobbyists could gain an even heftier role within the General Assembly. * * *

"Folks who are new, I think, tend to be really dependent on lobbyists because they haven't been around a while to learn about the issues," said Julia Vaughn, policy director for the government watchdog group Common Cause Indiana. "I do think that newcomers suffer from an information void, and lobbyists are more than happy to fill it."

Dozens of lobbyists for business associations, school groups, labor unions, attorneys, law enforcement and state agencies spend their days in the Statehouse during legislative sessions seeking out lawmakers to support bills in which they have an interest. Those lobbyists are typically the people testifying during committee hearings and often have the ears of lawmakers as bills are drafted and revised.

With bills on hundreds of topics filed each session, the system couldn't function without lobbyists on all sides of issues who are experts in their subjects and can work both with their clients and lawmakers, said Ed Roberts, a lobbyist on labor law and business tax issues for the Indiana Manufacturers Association over the past 36 years.

[More] From Chris Sikich of the Indy Star, a long feature on two of the retirees: "2 retiring Indiana General Assembly representatives are the last of their class: Having served since 1973, Republican Jeff Espich and Democrat Bill Crawford bringing influential careers to an end after 40 years."

Posted by Marcia Oddi on Tuesday, March 06, 2012
Posted to Indiana Law

Courts - "Jurors' Tweets Upend Trials: Lawyers Are Using Posts on Twitter and Facebook to Overturn Court Rulings "

A few quotes from a long story by Steve Eder in today's WSJ:

While most judges frown upon jurors' using their smartphones while sitting in the jury box, jurors typically have full access to social media outside the courtroom. The challenge for courts, legal experts say, is enforcing social-media bans during trials—which can last for weeks—at a time when authorities can't even stop some people from risking their lives by sending text messages while driving. * * *

In Will County, Ill., defense attorney Joel Brodsky is thinking ahead to how to guard against jurors' using social media during the coming high-profile trial of his client, Drew Peterson, a former police sergeant accused of killing his third wife. Mr. Peterson has pleaded not guilty.

Mr. Brodsky said he may ask the court to require jurors to disclose information, such as Twitter handles, to make sure jurors aren't "researching, tweeting or Facebooking" about the case. "That would be ripe grounds for a mistrial, for throwing out a conviction or an acquittal, and we'd have to go through the process all over again," he said. "It would be horrible."

Posted by Marcia Oddi on Tuesday, March 06, 2012
Posted to Courts in general

Monday, March 05, 2012

Vacancy on Supreme Court 2012 - J. Dickson to serve as head of JNC and CJQ by designation

Order dated March 5, 2011 by Acting Chief Justice Shepard:

I hereby DESIGNATE Justice Brent E. Dickson to serve as chairman of the Indiana Judicial Nominating Commission and Indiana Commission on Judicial Qualifications. Unless rescinded by order of this Court, this designation shall remain in effect until Justice Dickson becomes Acting Chief Justice of Indiana pursuant to article 7, section 3 of the Indiana Constitution, at which time Justice Dickson, as Acting Chief Justice, will automatically assume chairmanship of the Indiana Judicial Nominating Commnission and Indiana Commnission on Judicial Qualifications pursuant to article 7, section 9 of the Indiana Constitution.

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Supreme Court Job Opportunity - Director of Trial Court Management

Just received this info:

Hello Indiana Judges and Lawyers,

The Indiana Supreme Court, Division of State Court Administration, is seeking applicants for an attorney manager position as the Director of Trial Court Management. You may know the right candidate or be interested in this opportunity.

The Director in this position will oversee the collection and publication of data about the work and finances of all Indiana courts; help train judicial officers and court staff about administrative issues; provide guidance to courts, clerks and staff on court record creation and maintenance; and develop strategies and best practices to improve the operations of the trial courts. A minimum of 10 years of practice in Indiana and 5 years management experience is required. Knowledge of the Indiana judicial system, data analysis, trial court operations and an interest in court administration is recommended. Applicants must be members in good standing of the Indiana Bar and have excellent written and oral communication skills. The salary will range from $65,686 to $75,989, depending on experience. State benefits apply.

Please send resume and letter of introduction no later than March 26, 2012, to Brenda F. Rodeheffer, Director of Office & Employment Law, by email to brenda.rodeheffer@courts.IN.gov.

The Indiana Supreme Court is an Equal Employment Opportunity Employer.

Thank You,

Brenda Rodeheffer

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Indiana Courts

Courts - "How is the Roberts Court unusual? A law professor counts the ways"

Fascinating article by Robert Barnes in the Washington Post.

The story is based on this paper by Benjamin H. Barton, University of Tennessee College of Law, titled "An Empirical Study of Supreme Court Justice Pre-Appointment Experience."

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Courts in general

Ind. Law - More on "Change in conviction or criminal charge causes quarrel: Word change in bill could undo new act’s intent"

Updating this entry from earlier this afternoon, thanks to the reader who just sent this note:

That expungement bill is HB 1033, the amendment that changed the language from a "shall" provision to a "may" provision was 1033-1.

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Indiana Law

Law - "How To Cite A Tweet In An Academic Paper"

Really. See here.

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to General Law Related

Courts - "Second Circuit: NYS version of Rule on Attorney ‘Specialists’ Is Unconstitutional"

Joe Palazzolo has the story here in the WSJ Law Blog.

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Courts in general

Ind. Law - "Change in conviction or criminal charge causes quarrel: Word change in bill could undo new act’s intent"

Maureen Hayden of CNHI reported yesterday in the Kokomo Tribune on the "expungement" (restricted access) law. Some quotes:

INDIANAPOLIS — A year ago, a group of conservative and liberal legislators joined forces to pass a law aimed at making it easier for a person with a long-ago, low-level charge or conviction to get a job.

This year, they may have to fight to keep the law intact.

They fear language, tagged on to a related bill, that changes a single word — from “shall” to “may” — will undo the intent of the state’s new criminal records shield law. [ILB - anyone know the bill #?]

On Tuesday, the state Senate voted to support that amendment, which gives judges more discretion in deciding who has the legal right to shield a past criminal record from a future employer.

Supporters of the change say that discretion is needed to protect the public.

Opponents say judges, who are elected to office, may not have the political courage to grant any shield requests for fear their decisions will come back to haunt them.

The fight is over the criminal records shield law passed late in the 2011 session, with support from conservative and liberals who dubbed it the “second chance” bill. * * *

The current law allows people who’ve been granted the records shield to not have to disclose that past arrest or conviction to an employer.

That doesn’t sit well with state Sen. Richard Bray, a Republican from Martinsville who is also a former prosecutor.

“Frankly, I’m more interested in protecting the public than I am in protecting criminals,” said Bray. He argues that employers have the right to know about a job applicant’s past.

He said giving judges the discretion to deny a records shield petition — even if all the conditions in the current law are met — will likely result in fewer petitions granted.

Critics of his amendment have told him that judges will be fearful of making the wrong call: shielding the record of someone with an old class D theft charge, for example, who later is accused of stealing from an employer.

So in his amendment, he added that judges who deny a records shield petition must explain their reason in writing.

“Judges should have the discretion to deny the petition,” Bray said. “We’re paying them $120,000 a year. I should hope they’d use good judgment.”

Here is a list of earlier ILB entries on the expungement/restricted access law.

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending February 10, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Feb. 24, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, March 2, 2012. It is three pages (and 34 cases) long.

Five transfers were granted last week (details to follow):

In State of Indiana v. Andy J. Velasquez, II -- "Order dated 5/13/11 granting transfer of jurisdiction is vacated. Transfer is denied. - Shepard, C.J. and Dickson, Sullivan, Rucker, and David, JJ., concur." From the order:
By order dated May 13, 2011, the Court granted transfer of jurisdiction in this criminal appeal. After further review, including oral argument, the Court has determined that transfer of jurisdiction was improvidently granted. Accordingly, the order granting transfer of jurisdiction is VACATED. The transfer petition filed by Appellee is DENIED. The Court of Appeals opinion, State v. Velasquez, 944 N.E.2d 34 (Ind. Ct. App. 2011), is no longer vacated and is REINSTATED, and this appeal is at an end. See Ind. Appellate Rule 58(B).

In B.P. Products North America Inc., et al. v. Indiana Office of Utility Consumer Counselor, and Northern Ind. Pub. Service Co. -- "dismissed" per:

PARTIES' VERIFIED JOINT NOTICE OF IURC APPROVAL OF SETTLEMENT AND MOTION TO DISMISS PETITION TO TRANSFER

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Indiana Transfer Lists

Ind. Law - "Casinos have secure spot in smoking ban carve-out "

Good story today by Maureen Hayden of CNHI Statehouse Bureau. A sample:

But the exemption for the casinos and racinos are in both the House and Senate versions of the Indiana smoking ban bill headed to a legislative conference committee to work out other major differences.

“Without it, there wouldn't have been enough votes to pass the bill,” said Sen. Jean Leising of the casino/racino exemption.

Leising, a Republican from Oldenburg, succeeded in tacking on several amendments before the bill passed out of the Senate on Wednesday on a 29-21 vote.

One of them exempts charity gaming events, including church bingos, from the ban. She wants them to have the same smoking pass that casinos and racinos would get.

“If you exempt one, but don't exempt the other, you're setting up a barrier to fair competition,” Leising said.

Authors of the smoking ban bill say they held their noses when they added the casino/racino exemption to what they hoped would have been a more comprehensive ban to cover all workplaces.

Bill co-author Rep. Eric Turner, a Republican from Cicero, is skeptical of the gaming industry's claims about how much damage a smoking ban would do if applied to them.

“They say 20 percent of their customers are smokers,” Turner said, referring to a number that comes from the American Gaming Association. “But what about the number of people who don't go to casinos because of the smoke? Wouldn't those people start going if the casinos were smoke-free?”

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Brandy L. Walczak v. Labor Works-Fort Wayne, LLC, d/b/a Labor Works, an 11-page opinion, Judge Friedlander writes:

Brandy L. Walczak, on behalf of herself and all others similarly situated, appeals the trial court’s grant of summary judgment in favor of Labor Works – Fort Wayne, LLC (Labor Works) in her action for unpaid wages. Walczak frames the issue in this dispute as one of standing, i.e., whether she has standing to sue for improper payroll deductions and unpaid wages under Ind. Code Ann. § 22-2-5-1 et seq. (West, Westlaw through end of 2011 1st Regular Sess.) (the Wage Payment Statute) and I.C. § 22-2-6-1 et seq. (West, Westlaw through end of 2011 1st Regular Sess.) (the Wage Deduction Statute). We address the following related but different issue: Did the trial court have subject-matter jurisdiction over Walczak’s lawsuit? We reverse and remand with instructions. * * *

We believe that * * * this is precisely the type of fact-sensitive inquiry that should be resolved in the first instance by the administrative agency.

In so holding, we are mindful of the value of requiring the completion of administrative proceedings before resorting to judicial review, viz., (1) avoiding premature litigation; (2) the compilation of an adequate record for judicial review; and (3) utilization of agency expertise in a given field, see, e.g., Indiana Dep’t of Envtl. Mgmt. v. Twin Eagle LLC, 798 N.E.2d at 845 (“Twin Eagle may be correct that the particular waters at issue are not subject to regulation, but the proper forum to address this fact sensitive issue is through the administrative process. We therefore defer to the administrative process to determine whether potentially dispositive factual circumstances exist here”), and (4) affording agencies the opportunity and autonomy to correct their own errors.

We conclude that the question of whether Walczak was involuntarily separated from the payroll within the meaning of the Wage Claims Statute is a question of fact that should have been submitted to the DOL. Therefore, the trial court lacked subject-matter jurisdiction over Walczak’s claims until the DOL had made a determination on that question. See Hollis v. Defender Sec. Co., 941 N.E.2d 536 and Reel v. Clarian Health Partners, Inc., 917 N.E.2d 714. Accordingly, we reverse the grant of summary judgment in favor of Labor Works and remand this cause to the trial court with instructions to dismiss Walczak’s complaint.

NFP civil opinions today (2):

Gregory Young v. Nicole Young (NFP)

Christopher Starkey v. Janet Panoch (NFP)

NFP criminal opinions today (2):

Brenda S. Hanna v. State of Indiana (NFP)

Jeremy Whetstone v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Ind. App.Ct. Decisions

Law - "Teams Could Be Held Liable for Injuries Traced to Bounties"

That is the headline to this story by Judy Battista in the March 4th NY Times. The story begins:

The New Orleans Saints will almost certainly receive fines, suspensions and/or the loss of draft picks because of the bounty system administered by the former defensive coordinator Gregg Williams that encouraged Saints players to injure opponents — and for the apparent cover-up by team officials that followed. But that could be just the beginning of their punishment.

According to two sports law scholars, the team, Williams and individual players could be held liable in court if an opponent can prove that a member of the Saints injured him on a play that is outside the norm for football and that the Saints player acted with reckless disregard for the opponent’s safety.

“As a general rule, those who participate in sports assume the inherent risk of injury therein,” said Matt Mitten, the director of the National Sports Law Institute at Marquette University Law School. “You break your arm? Suffer concussion? Broken leg? But what most courts have held is you do not assume the risk of an intentional or recklessly caused injury. Contact is an inherent element of N.F.L. football; it’s not enough just to contact someone.

“I would see something as a bounty, where you’re intending to injure someone so he’s knocked out of the game, or reckless, the deliberate disregard of a high probability of harm — those are the types of situations where the courts have said: ‘That’s not a risk that people assume. There is potential liability to those who suffer injury.’ ”

In the WSJ, Matthew Futterman has a story headed: "NFL Plays Defense on Suits: 'Bounty' Crackdown Comes as League Faces Legal Actions for Other Injuries."

In the WSJ blog
, The Daily Fix, David Roth asks: "Where Will the NFL Bounty Case Lead?"

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to General Law Related

Environment - Indiana University named a 2011 Tree Campus USA

That from an IU News press release today that begins:

BLOOMINGTON, Ind. -- The Arbor Day Foundation has named Indiana University Bloomington a Tree Campus USA in honor of its commitment to effective community forestry management. This is the fourth year of recognition for Indiana University.
Not mentioned is the remarkable recovery in light of this incident reported last May in an earlier release:
At most recent count, IU Bloomington has lost nearly 300 trees, according to university officials who surveyed the campus in the wake of the storm, and this does not include damage north of the intersection of East Tenth Street and the Bypass and the IU Golf Course.

Particularly affected is Dunn's Woods, the densely wooded area located in the middle of the historic Old Crescent district of campus and bounded by a number of academic buildings, including the IU Maurer School of Law. Several large mature trees are down and most paths are blocked by tree limbs. Access to the woods has been blocked due to the threat of falling limbs. * * *

IU Vice President for Capital Projects and Facilities Tom Morrison said that it will take months to clean up the damage, trim broken limbs and make walking paths safe, and that it may take years to replace the old growth. "After three big storms in the past 11 months, and a summer of drought last year, we have lost far more trees than we have planted. We will certainly need to reverse this trend," Morrison said.

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Environment

Ind. Gov't. - "Indiana regulators to consider unsealing additional Duke documents in probe of Edwardsport power plant"

John Russell reports today in a long story in the Indianapolis Star that begins:

What critics call one of the most controversial and cloaked cases ever heard by an Indiana regulatory agency might soon get a little more sunlight.

On Tuesday, the Indiana Utility Regulatory Commission will consider whether to unseal hundreds of additional documents in the massive investigation into possible wrongdoing at Duke Energy Corp.'s $3.3 billion power plant in Edwardsport.

Depending on its decision, the agency could give a fuller picture of the engineering and construction problems at the plant, as well as the huge cost overruns that could push up monthly bills for hundreds of thousands of Indiana customers.

Also today, Russell has a long post on the Star BizBuzz blog that does two things:
  1. Recounts the backstory to the investigative series; and
  2. Labels and links, with brief descriptors, the major stories in the series, in chronological order.

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Indiana Government

Courts - "Are Historical Cell-Site Data Protected Under the Fourth Amendment After United States v. Jones?"

See Prof. Orin Kerr's post at The Volokh Conspiracy. Jones was the GPS case recently decided by the SCOTUS.

(Historical cell site location records have been in the Indiana news recently in the Charlie White criminal case.)

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Courts in general

Ind. Law - Can a lawyer licensed in Indiana use group coupon or daily deal marketing in compliance with Indiana's Rules of Professional Conduct?

The ILB has received this note from Rochester attorney Ted A. Waggoner:

The ISBA Legal Ethics Committee issued this opinion last week on the question of group coupon usage by lawyers and law firms.

We are about the fifth state to decide on the issue, and the other decisions have gone in several different directions. Catheryne Pulley is the LEC liaison. James Bell chairs the committee.

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Indiana Law

Environment - "Hazardous waste money to help fund roads"

From the Greencastle Banner-Graphic, this story that begins:

INDIANAPOLIS -- Counties can now use a part of their hazardous waste disposal tax revenue to pay costs associated with the maintenance or repair of county roads following action by the Indiana General Assembly.

District 44 Rep. Jim Baird (R-Greencastle) authored legislation, House Enrolled Act 1060, which authorizes hazardous waste disposal tax revenue to pay costs with the maintenance or repair of county roads. The bill was signed into law on Wednesday.

"This bill deals with counties that have a hazardous waste landfill," Rep. Baird said. "This allows the host county to use a portion of the tipping fees for local road maintenance and repair."

The bill was sponsored in the Senate by Sen. Connie Lawson (R-Danville).

Currently, the money from hazardous waste disposal tax can be used for things such as monitoring wells, conducting testing of contamination and paying associated costs of construction and rehabilitation. This legislation adds county roads as a use of the money, but is limited to only 10 percent of the balance of each year.

"The money from the hazardous waste disposal tax revenue helps pay for hazardous waste training for first responders, the Emergency Operations Centers, and monitoring wells among other concerns that come with having a landfill in the area," Rep. Baird said. "However, counties are searching for any source of funds that can be used for road maintenance and repair. This law will now allow some counties the flexibility and an extra way to maintain county roads."

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Environment

Ind. Courts - More on: Judge Simon sets hearing on RTW TRO for next Monday, March 5 at 1 pm in federal court in Hammond [Updated]

Updating this very brief Feb. 28th ILB entry, Michelle Quinn reports today in the Gary Post-Tribune in a story that begins:

HAMMOND — A hearing scheduled for Monday afternoon regarding the Operating Engineers Local 150’s temporary restraining order against the state’s Right-to-Work law has been canceled after the local withdrew its motion Friday afternoon.

Local 150 Attorneys Dale Pierson and Elizabeth LaRose wrote in the withdrawal notice that the TRO be dismissed “without predjudice” because both Attorney General Greg Zoeller’s office and Indiana Department of Labor Commissioner Lori Torres interpreted the document filed as “not applying to or abrogating existing contracts or those in effect on March 14, and only applying to contracts entered into, modified, renewed, or extended after March 14.”

[More] Here is the story from the NWI Times.

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Indiana Courts

Ind. Decisions - Still more on "Tax forgiveness and equality"

Armour v. Indianapolis, the Indiana Supreme Court sewer tax decision that was argued before the SCOTUS last week (long list of ILB entries here), is the subject of a March 4th editorial in the NY Times, headed "Equal Protection on Sewer Bills," that begins:

Sometimes, what seems to be a case with an obvious, common-sense answer ends up at the Supreme Court. Such is the curious case of the municipal sewer bill and the Constitution. The issue in Armour v. Indianapolis, which the court heard arguments on last week, is whether the city violated the equal protection rights of residents who prepaid their sewer bills and were not given a refund after the city changed its sewer fee policy.

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Ind. Sup.Ct. Decisions

Vacancy on Supreme Court 2012 - Today Indiana has an Acting Chief Justice

As clarified in this March 1, 2012 ILB entry, the name is the same, but the designation is different:

Chief Justice Shepard's term as Chief Justice ends March 4, 2112. His last day on the Court will be Friday, March 23rd. From March 5-23, Chief Justice Shepard will be acting Chief Justice and continue to preside over oral arguments and handle administrative duties. The Constitution calls for the most senior member of the Court to serve as Acting Chief Justice. Shepard is the most senior member of the Court. On March 24th, Justice Dickson will become Acting Chief Justice.

On March 5th, Chief Justice Shepard will designate Justice Brent Dickson as Chair of the Judicial Nominating Commission and Judicial Qualifications Commission. This will allow for a smooth hand-off to those duties.

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Woman on the Indiana Supreme Court – or not?

Don't miss this ILB entry from Sunday.

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Vacancy on Supreme Court 2012

Catch-up: What did you miss over the weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?

But first, didn't you check the ILB a lot last week? Then please make the move to supporting the ILB.

From Sunday, March 4, 2012:

From Saturday, March 3, 2012:

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/5/12):

Next week's oral arguments before the Supreme Court (week of 3/12/12):

Thursday, March 15th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/5/12):

Monday, March 5th

Friday, March 9th

Next week's oral arguments before the Court of Appeals (week of 3/12/12):

Monday, March 13th

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, March 05, 2012
Posted to Upcoming Oral Arguments

Sunday, March 04, 2012

Vacancy on Supreme Court 2012 - Woman on the Indiana Supreme Court – or not?

That is the topic of this excellent, fleetingly freely available, analysis piece by Lesley Weidenbener, managing editor of the Franklin College Statehouse File. From the story:

Gov. Mitch Daniels is pondering his second appointment to the Indiana Supreme Court, a choice that is important because it gives the Republican an opportunity to extend his legacy beyond this final year of his second term and influence civil and criminal policies in Indiana for decades.

For Daniels – who must chose among three attorneys chosen by the Indiana Judicial Nominating Commission – the decision is about merit and judicial philosophy. But some are watching to see if Daniels will appoint a woman to replace retiring Chief Justice Randall Shepard. Of the three finalists, only one – Indiana Judicial Center Executive Director Jane Seigel – is a woman. * * *

As Daniels considers the candidates for the state’s current opening, he said that gender will be one factor in his decision but it certainly won’t be the key.

“I would love nothing more – and this is in many contexts for that matter – than to appoint women. Try to do it when I can. But it’s a tiebreaker,” the governor said. “We’ve got to have the best qualified judge, the best temperament. I want to see someone who will respect the boundaries and the separation of power and boundaries of judicial decision making.”

But Sally Kenney, executive director of the Newcomb College Institute at Tulane University, argued picking a woman ought to be the priority for Daniels. Kenney, who specializes in gender in courts, said Indiana’s lack of diversity on the state’s high court is akin to workplace discrimination.

Women make up more than 50 percent of Indiana’s population, roughly half of all the law school grads, about 30 percent of practicing attorneys in the state, and nearly one in five of the judges in county circuit and superior courts. To fail to have the state’s highest court reflect that diversity is a problem, Kenney said.

But the most important reason for Daniels to pick a woman is “that people will look at the court and see it as illegitimate,” Kenney said. She compared the situation to an all-white jury judging a black defendant. “Even if the jury is trying to be fair, it may not be justice,” she said.

“It’s not just about justice being done, but justice seen to be done,” Kenney said. “It’s very difficult to argue for the legitimacy of the court if it doesn’t represent the majority of the population.”

The editorial board at The Journal Gazette in Fort Wayne recently made a similar argument when it said the “best man for the Indiana Supreme Court is a woman.” The editorial said the nominating commission should not have sent Daniels any candidate that was not qualified for the job.

But, the editorial said, “only one is female. It should make the governor’s work very easy.”

Still, similar arguments were made nearly two years ago when Daniels appointed Justice Steven David to the court. Then, the governor was also choosing from among one female and two male finalists.

And at that time, Daniels also said that gender would have been a tie-breaker. But ultimately, he said, there was no tie because David was the most qualified candidate.

Since then, other states have been figuring it out. Across the nation, roughly one third of all state justices are women, a statistic that has been increasing. Maybe soon, Indiana will figure it out soon too.

The FWJG editorial referenced in the story was published last Sunday, Feb. 26th, and headed "Easy pick for state’s top court." An earlier ILB post, from Feb. 21st, was headed "Where are the Women Justices?"

As I wrote then, the criteria the Governor sets out are subjective. Each of the three candidates sent to the Governor in 2010 was superbly qualified, two equally matched, in many eyes, trial court judges (one of whom was a woman) and one private appellate practitioner who had earlier worked for the Supreme Court.

The same is true of the three names the Governor formally received last week. Two have backgrounds that appear evenly matched, albeit with very different life experiences. Neither of the two has been a judge, but both currently work in state government, one for the Governor, one for the Supreme Court. Both have local government experience, one as a deputy prosecutor, the other as counsel for the local governments. One of the two is a woman. The third candidate this year has been a trial judge and currently is a judge on the Court of Appeals, a position to which he was appointed four years ago by Governor Daniels.

Before the disaster and tragedy that struck southern Indiana Friday, many people thought the Governor would name a new Supreme Court justice the first part of this coming week...

Posted by Marcia Oddi on Sunday, March 04, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - Are daily police logs now being made available to the public adequate under public access law?

Tom Moor has a story today in the South Bend Tribune titled "Do police need to open up? Some of department's logs appear to be leaving information out." Some quotes from the beginning of the lengthy story:

The daily police logs two St. Joseph County departments provide to the public appear to be falling short of what is required by Indiana's Public Access Laws.

The Tribune recently asked the state’s public access counselor for an advisory opinion about the thoroughness of the police logs — reports of crimes and other incidents — provided to the public and the media by three local departments: South Bend, Mishawaka and St. Joseph County.

In an advisory opinion, Public Access Counselor Joe Hoage said last week that two of the departments, Mishawaka and St. Joseph County, are omitting certain required details from their logs. [ILB: The SBT provides samples of the three logs for comparing.]

Police agencies are required by law to provide a daily log or record that lists suspected crimes, accidents, or complaints, as well as a number of other details.

The logs or information are to be updated every 24 hours from the time of the alleged crime or incident and made available to the public and media representatives to examine and copy.

Tribune reporters and other local journalists go through the three departments’ police logs daily to report on public safety in the county. Police briefs and other write-ups regarding police incidents that appear in print and online often come from cases pulled from the log.

Hoage called the South Bend Police Department’s log “by far the best of the three, by providing a clear, easy to follow report” with no obvious violations of the public access law requirements.

What’s being left off

Officials with Mishawaka and St. Joseph County blamed computer issues for the omissions and have said they are open to adding more information to comply with the laws.

Both the county’s and Mishawaka’s daily log appear to fail to list several items that are required by Indiana Code.

What is listed in the county log is the time and date, incident type, location, the case number, the disposition and a “brief comment,” a category that sometimes appears blank.

What is missing, Hoage said, is information regarding an arrestee, a victim, a factual circumstances surrounding the incident and a general description of any injuries, property, or weapons involved, all of which are required under Indiana Code 5-14-3-5 from the Indiana’s Public Access Laws.

The long story concludes:
The Tribune did not file formal complaints against the departments, when it emailed Hoage copies of each of the three agencies’ police logs for review.

Had a formal complaint been filed, Hoage said, he would have ruled that the county and Mishawaka departments are in violation of some aspects of the law.

“Few people besides journalists actually ask for this information,” said Tim Harmon, The Tribune’s executive editor. “But when we can’t get it, readers don’t get the information they need to judge the extent of crime in their neighborhoods or, ultimately, to know how good a job their police department is doing.”

A bill that would fine public officials who knowingly violate the open records law was passed by the Indiana House during its current session but has stalled in the Senate.

ILB: The "stalled" efforts are the subject of this post today.

ILB comment: Although the story says at the beginning that the SBT asked the PAC for "an advisory opinion," it appears that what they asked for was an "informal opinion," given that PAC Hoage states in a quote at the end of the story that no formal complaint was filed.

Advisory Opinions Issued in Response to Formal Complaints (Ind. Code 5-14-5)

Informal Opinions - The Public Access Counselor issues written informal advisory opinions in response to requests made under I.C. 5-14-4-10(5).

Ironically, a long-time criticism of the PAC office by the ILB has been the long delay in posting advisory and informal opinions online. A reader wrote the ILB on March 2nd: "The Public Access Counselor finally this afternoon posted a few months worth of opinions."

So the Advisory Opinions are, as of March 2nd, current through Feb. 28, 2012. But the Informal Opinions (where the SBT's inquiry would be found) have not been updated since 2011 (and only one apparently was issued in 2011).

Posted by Marcia Oddi on Sunday, March 04, 2012
Posted to Indiana Government

Courts - "Washington State Supreme Court is being asked to determine whether jurors should be told that eyewitnesses who identify strangers across racial lines — for example, a white man identifying a black man — are more likely to be mistaken"

How Appealing points to this story today in the Seattle Times, reported by Ken Armstrong, and headed "Before state's high court: role of race in identifying a face." The lengthy story begins:

In State of Washington v. Bryan Edward Allen, two issues intersect that could hardly be of greater importance to the functioning of the criminal-justice system: the role of race, and the reliability of eyewitnesses.

The case, argued Thursday before the state Supreme Court, is also about sunglasses. We'll get to that later.

On an August evening in 2009, in Seattle's University District, Gerald Marcus Kovacs called 911 and said a stranger on the street had just threatened to kill him. Within minutes, police picked up Bryan Allen at a nearby bus stop. Officers took Kovacs to Allen and asked: Is this the guy? "Yeah, definitely, that is 100 percent him," Kovacs told police.

Two months later, Allen was convicted of felony harassment. He received a sentence of 14 months.

Kovacs is white. Allen is black.

Allen's appeal argues that when the case was tried in King County Superior Court, the judge should have instructed jurors that when someone from one race identifies a stranger from another race, the chances of a mistake go up.

Posted by Marcia Oddi on Sunday, March 04, 2012
Posted to Courts in general

Ind. Gov't. - Elkhart County: "Questions surface about local inspections for dog breeders"

The regulation of dog breeding businesses is of interest to many, and Angelle Barbazon has a long report today in the Elkhart Truth headed "Questions surface about local inspections for dog breeders." A few quotes:

On the heels of a heated debate about the expansion of a dog breeding business in Nappanee, questions began to surface about Elkhart County’s animal ordinance and how it’s enforced.

A group that crafted the ordinance, which went into effect in 2010, may reconvene this summer to review the 14-page document. The ordinance covers general care guidelines, dangerous animal requirements and penalties, among other things. County Commissioner Mike Yoder said he wants to find out how state laws regarding animal welfare, federal standards and the ordinance intersect.

Concerns about the welfare of dogs at breeding kennels came into question most recently when Nappanee breeder David Chupp requested to add 41 animals to his operation. The Board of Zoning Appeals granted Chupp a special use permit in 2009 that allowed him to keep up to 64 adult dogs. When he came back to the board on Feb. 16, Chupp’s request to bring his total of adult dogs up to 105 was unanimously denied.

Among the group of people who helped develop the county’s animal ordinance a couple of years ago was Humane Society of Elkhart County Executive Director Anne Reel. Like Yoder, she is interested to see how local, state and federal guidelines connect when it comes to overseeing dog breeding kennels.

Reel said that a gap develops when a breeder doesn’t meet standards set by the U.S. Department of Agriculture and the Indiana State Board of Animal Health.

“Who is responsible to say, ‘You can’t do this anymore?’ How many times can a person violate USDA standards and continue to carry a kennel license?” Reel asked.

Reel said she realizes that “there are good breeders out there.”

Still, she said, “We also know there are those who probably shouldn’t be breeding. There needs to be a good, clear delineation of responsibility to make sure those who aren’t doing a proper job can no longer do that job.”

Reel said a lack of federal inspections may be the result of insufficient resources and a lack of manpower.

“I think that’s part of the problem with the USDA,” she said. “They’re very limited in terms of the number of staff versus the number of kennels they have to inspect. There are some gaps that we can’t really address on the federal level, but we can certainly look at what we can do locally.”

Here is a long list of earlier, related ILB entries.

Posted by Marcia Oddi on Sunday, March 04, 2012
Posted to Indiana Government

Ind. Gov't. - What is upcoming in this last week of the General Assembly?

"Lawmakers head to homestretch: Smoking ban among flurry of bills awaiting action," is the headline to Niki Kelly's lengthy story today in the Fort Wayne Journal Gazette that begins:

With legislators angling for an early finish, the final week of the 2012 session will spotlight a statewide smoking ban, tax refunds for Hoosiers and more money for kindergarten.

“I think we rolled up our sleeves and worked pretty hard on both sides and are getting some good things done,” said Senate President Pro Tem David Long, R-Fort Wayne. “We’ll see a lot of action here next week.”

Legislators are set to be done Friday, if all goes well. And the last week will be dominated by the debate over a statewide smoking ban.

Eric Bradner of the Evansville Courier & Press reports in a story headed "As Indiana legislature enters final days, few issues left to resolve." Among those he discusses: state spending, smoking ban, Rockport tax credit, inheritance tax, police entry.

More on police entry (i.e. the "Barnes bill") in this earlier story by Bradner, this AP story by Tom Davies, and this IndyStar story by Mary Beth Schneider.

Posted by Marcia Oddi on Sunday, March 04, 2012
Posted to Indiana Government

Ind. Gov't. - Bills that would enforce government transparency are dead

Kevin Allen's story was in the Feb. 24th South Bend Tribune. The bills are SB 92 and HB 1093. A few quotes:

Legislation aimed at penalizing government officials who break public-access laws has hit a wall in the Indiana General Assembly.

Lawmakers introduced two bills this year that would put some teeth in the state’s Open Door Law and Access to Public Records Act.

Those laws guarantee government meetings are accessible and that residents have a right to view certain government documents, but Indiana law provides no penalties for officials who deliberately ignore them.

Senate Bill 92 and House Bill 1093 would allow a judge to levy fines of up to $100, or up to $500 for repeat offenders, against officers, managers or agencies that flout public-access laws.

Posted by Marcia Oddi on Sunday, March 04, 2012
Posted to Indiana Government

Ind. Courts - Authoritarian vs. clinically based drug courts

"Courts balance drug punishment vs. treatment" is the headline to this story by Mark Wilson in the Sunday Evansville Courier & Press that begins:

BOONVILLE, Ind. — Warrick County Drunk Driving and Drug Court Director Kevin Groves' personal experience with addiction and training as a licensed social worker are examples of a growing move toward drug court programs that are based less on punishment and more on clinical treatment.

It's what Warrick Superior Court Judge Keith Meier calls "therapeutic jurisprudence," or in layman's wording, "helping folks in solving problems."

Warrick's drug court has graduated 80 of 136 participants since it began in 2005, including 15 in January.

"We have had a successful program, and I think it is because it is clinically based," Meier said.

While some drug court programs take a more authoritarian approach, Meier said clinically based programs address the issue by looking at the root causes of offenders' behaviors.

Posted by Marcia Oddi on Sunday, March 04, 2012
Posted to Indiana Courts

Courts - "After Scandal, New Rules For Juveniles In Pa. Courts"

Remember the 2009 stories about the two Luzerne County Pennsylvania judges who "sent thousands of juveniles to detention centers in return for kickbacks" from a developer of for-profit prisons?

This weekend NPR had a nearly 5-minute-long story, by Joel Rose - some quotes:

More than 2,000 young people in Pennsylvania are trying to put one of the nation's worst juvenile justice scandals behind them. It's been a year since a former judge was convicted in the so-called "kids for cash" scandal.

New rules intended to protect the rights of children took effect this week, but questions about Pennsylvania's juvenile justice system remain. * * *

The changes are supposed to prevent another "kids for cash" scandal from happening. For one thing, the use of shackles is now strongly discouraged.

Starting this month, defendants in juvenile court will not be allowed to waive their right to counsel, except in rare cases. That's a big step forward, says Marsha Levick at the Juvenile Law Center in Philadelphia, which helped bring the Ciavarella case to light. But Levick says there's another problem: Pennsylvania is one of just a handful of states that do not provide any money to counties to defend those who can't afford a lawyer.

"That means that we really have justice by geography here," Levick says. "Kids in smaller counties, in poorer counties, will often get very poor representation."

Since the scandal, Luzerne County has beefed up its juvenile defense team. Public defender Al Flora says the juvenile unit now has three full-time lawyers, up from just one part-timer, plus two social workers. But Flora has done that mainly through short-term grants and he's fighting with county officials to get the money to keep the unit going.

"The problem we're facing right now in Luzerne County, it seems like people forget what has happened in the past," Flora says.

If Flora can't find the resources to keep the juvenile unit going, he says, basically it would be shut down.

Posted by Marcia Oddi on Sunday, March 04, 2012
Posted to Courts in general

Ind. Gov't. - "Rockport plant tax credit shaping up to be legislative fight"

Updating a long list of earlier ILB entries on the proposed coal gasification plant in Rockport, here are two new items from the Evansville Courier Press.

William Rosenberg, president of E3 Gasification, responds, in a March 3rd letter, to David Coker's column in the Feb. 28th issue of the paper.

In a lengthy March 2nd story, Eric Bradner writes:

A tax credit that could be worth $120 million for the proposed Rockport, Ind., plant that would turn coal into synthetic natural gas has become a key sticking point as Indiana lawmakers enter the final week of their 2012 session.

The credit is a carrot to encourage the plant’s developers to buy Indiana coal — supporting Southwestern Indiana’s coal-mining jobs in the process. Although its exact value could fluctuate, state officials estimate it at $6 million per year, over 20 years.

Gov. Mitch Daniels is leaning on majority Republican leaders in the House and Senate to make sure that tax credit is tucked into a bill, so pending lawsuits over whether the credit should apply can’t scuttle a project his administration has gone to unprecedented lengths to make happen.

Meanwhile, Vectren Corp. and other opponents are raising red flags, not just about the tax credit but about the entire $2.6 billion plant. They say prices for the gas produced there will be higher than natural gas purchased on the open market, and that ratepayers will feel the pain. * * *

Daniels said he views legislation that would make sure the Rockport plant gets the tax credit not as a change, but a clarification to keep the project from being bogged down by issues that Vectren and others are raising in court.

“A lot of great projects get killed just by the delay of litigation. We’ve seen this in energy over and over again, and I think there’s probably an intent to try to do that here. They might lose in the end, but the project might be wrecked in the process,” Daniels said.

“I wish somebody had written the thing crystal clear the first time so there wasn’t a word that some clever lawyer could maneuver into court on, but apparently it needed to be knitted up.”

Opponents say they hope talk of the credit — which comes after the General Assembly first approved the plant, and then the state’s authority to negotiate a deal to buy its natural gas, and then a 2011 measure giving it eminent domain to build a pipeline — will remind lawmakers of how much they have already done to accommodate the plant.

That, they say, should cause them to reconsider.

“This is the ultimate speculative deal, sponsored by a part of the Indiana state government. This administration is speculating for the next 30 years about what the market in gas is going to be. No one else is willing to do that,” said Bill McCarty, the former Indiana Utility Regulatory Commission chairman and former Democratic state senator. “Unfortunately, the Indiana ratepayer will pay for this.”

Under the 30-year contract, 17 percent of Indiana homeowners and small- to medium-sized business owners’ gas bills would be tied to rates that come from the Rockport contract, rather than open-market rates that utilities would normally charge.

As Leslie Weidenbener reported in this Feb. 22nd story, also in the Evansville paper:
The Ways and Means Committee voted 22-2 to remove the Indiana Gasification language from SB 344. * * *

Because SB 344 passed the Senate with the Indiana Gasification language in the bill, it remains alive for this session. That means it could still be amended into other legislation.

Ways and Means Chairman Jeff Espich, R-Uniondale, said the issue might not be dead but said it “needs to continue to be reviewed.”

Posted by Marcia Oddi on Sunday, March 04, 2012
Posted to Indiana Government

Friday, March 02, 2012

Ind. Gov't. - Higher education finance considerations

The NY Times today had an excellent story, reported by Catherine Rampell, on many of the factors at play in higher education finance.

Posted by Marcia Oddi on Friday, March 02, 2012
Posted to Indiana Government

Ind. Law - Legislation to Narrow the Scope of Indiana’s Public Intoxication Law Moves to Governor

Updating this ILB entry from Jan. 30, 2012, Maureen Hayden of CNHI reported March 1st:

For decades in Indiana, if you were drunk while walking down the street or riding as a passenger in a car, you could be arrested for public intoxication.

That will soon change, if Gov. Mitch Daniels signs Senate Bill 97 into law.

Legislation passed by the Indiana General Assembly this week requires a person to be disruptive or dangerous, as well as drunk, before they could be arrested and charged with public intoxication.

The bill was sponsored by lawmakers in response to a 2011 Indiana Supreme Court decision. The case involved an Indianapolis woman who was charged with public intoxication after she handed her keys over to a sober “designated driver” because she was too drunk to drive her own car.

She was arrested after a police officer pulled over the car she was riding in as a passenger and discovered the sober driver didn’t have a valid driver’s license. The female passenger told the officer she couldn’t drive because she’d been drinking.

The state’s high court upheld her conviction, and in doing so, sparked a small uproar. Critics feared the ruling would undermine admonishments from public safety advocates who urge people not to drink and drive.

The new public intoxication law would go into effect July 1, if the governor signs it as expected.

Attorneys who’ve had to wrestle with the current law welcome the change. * * *

[Joel Schumm, a professor at Indiana University School of Law at Indianapolis] said the new law brings Indiana more in line with 45 other states that require more for a public intoxication conviction than simply having downed a few drinks and being in a public place.

The new law requires an additional element for a conviction: An intoxicated person must also be endangering his or her own life, someone else’s life, or is disturbing the peace, creating a disturbance or harassing another person.

The bill’s author, state Sen. Mike Young, an Indianapolis Republican, said that under the existing law, innocent Hoosiers were being charged with crimes that were unfair when they were caught walking home or riding in a car, rather than driving after they had too much to drink.

For background see this ILB entry from Jan. 9, 2012 that includes references to: "That [ruling] could pull over every single taxi in Broad Ripple," about the Supreme Court's June 24, 2011 opinion in Brenda Moore v. State of Indiana.

Posted by Marcia Oddi on Friday, March 02, 2012
Posted to Indiana Law

Ind. Gov't. - "Monroe County, Benton Township trustee resigns after seeing 2010 audit report"

The current status of HB 1005, relating to nepotism and conflict of interest: it has been returned to the House with amendments.

The above title is the headline to a $$ story today by Laura Lane in the Bloomington Herald Times. A few quotes:

On the eve of the release of a state audit critical of financial transactions in Benton Township during 2010, township Trustee Heather Cohee on Thursday resigned her elected post.

“I want people to know that I do regret some of the decisions I made,” Cohee said. “Maybe I shouldn’t have hired family, maybe I should have kept it to the citizens, which is what I should have done.” * * *

Cohee was elected Benton Township trustee in November 2010, beating Republican challenger Jarrod Neal by 85 votes. Neal vowed during the campaign not to hire family members for township work.

Cohee paid her husband, Monroe County Sheriff’s Deputy Todd Cohee, more than $45,000 from 2008 through 2010 for doing township jobs such as cemetery mowing, parking lot paving and other tasks. She said he worked about 100 hours a month for the township.

The trustee paid herself $55,965 during that time. Cohee’s two daughters were on the township payroll in 2009.

ILB: It is not yet clear whether "any hint of misappropriation of township funds [is] reflected in the audit."

Posted by Marcia Oddi on Friday, March 02, 2012
Posted to Indiana Government

Courts - Still more on: "Chief U.S. District Judge sends racially charged email about president"

Updating this most recent ILB entry on the Montana federal judge, the ABA Journal blog has an entry today headed "Montana Federal Judge Reports Himself for Ethics Review After Admitting He Sent a Racist Email" that collects a number of links.

Several ILB readers written to the ILB about this story.

Posted by Marcia Oddi on Friday, March 02, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Brian Scott Hartman v. State of Indiana , a 5-page opinion, Judge Darden writes:

In this interlocutory appeal, Brian Scott Hartman (“Hartman”) appeals the denial of his motion to suppress a statement he made to the police regarding his involvement in the death of his father, Brian Ellis Hartman (“Father”). * * *

Here, as in Person, Detective Pullins did not re-initiate the interrogation. Rather, Hartman initiated further communication by asking whether the search warrant had been served and whether anything had been found, and then told the detective that he wanted to speak with him. Detective Pullins readvised Hartman of his Miranda rights, which Hartman said he understood, before Hartman made an incriminating statement, and Hartman waived these rights. The trial court did not err in denying Hartman’s motion to suppress this statement.

NFP civil opinions today (3):

Tonya J. Clark v. Review Board of the Dept. of Workforce Development and PCI Holdings, LLC (NFP)

Gary W. Moody v. City of Franklin (NFP)

1st Call Home Health LLC and Cardinal Health Systems, Inc. v. Pamela Porter and Abbott Laboratories, Inc. (NFP)

NFP criminal opinions today (5):

Bryan Keith Hughes v. State of Indiana (NFP)

Derek Rucker v. State of Indiana (NFP)

Bernard O. Tidey v. State of Indiana (NFP)

Dennis L. Lewis v. State of Indiana (NFP)

Chadd B. Langston v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 02, 2012
Posted to Ind. App.Ct. Decisions

Vacancy on Supreme Court 2012 - Governor Daniels to press this morning

ILB: I'd heard the interviews were the 29th, but couldn't get confirmation.

Posted by Marcia Oddi on Friday, March 02, 2012
Posted to Vacancy on Supreme Court 2012

Thursday, March 01, 2012

Courts - More on: "Chief U.S. District Judge sends racially charged email about president"

The ILB posted this entry this morning re the Montana federal judge's email.

This evening the 9th Circuit's official website contains this page headed "Montana Judge Apologizes in eMail Controversy."

Thanks to AppellateDaily for the link.

Posted by Marcia Oddi on Thursday, March 01, 2012
Posted to Courts in general

Vacancy on Supreme Court 2012 - More on: The ILB is anticipating the release of the Judicial Nominating Commission's report to the Governor

Updating the ILB entry from early this morning, here now is the Judicial Nominating Commission's 6-page report to the Governor, transmitted by Chief Justice Shepard to Governor Daniels, dated February 29, 2012.

Posted by Marcia Oddi on Thursday, March 01, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Official word: When exactly is CJ Shepard retiring?

Many thanks to Kathryn Dolan, Indiana Supreme Court Public Information Officer, who just sent this official information to the ILB:

Chief Justice Shepard's term as Chief Justice ends March 4, 2112. His last day on the Court will be Friday, March 23rd. From March 5-23, Chief Justice Shepard will be acting Chief Justice and continue to preside over oral arguments and handle administrative duties. The Constitution calls for the most senior member of the Court to serve as Acting Chief Justice. Shepard is the most senior member of the Court. On March 24th, Justice Dickson will become Acting Chief Justice.

On March 5th, Chief Justice Shepard will designate Justice Brent Dickson as Chair of the Judicial Nominating Commission and Judicial Qualifications Commission. This will allow for a smooth hand-off to those duties.
This clarifies/corrects the ILB's entry from earlier this afternoon.

Posted by Marcia Oddi on Thursday, March 01, 2012
Posted to Vacancy on Supreme Court 2012

Courts - "Although it does not excuse their crimes, most people sent to prison for life as youth were failed by systems that are intended to protect children"

That is the first sentence in the introduction to a new, 47-page report, released today by The Sentencing Project, titled "The Lives of Juvenile Lifers: Findings from a National Survey."

[Thanks to Sentencing Law Blog.]

Posted by Marcia Oddi on Thursday, March 01, 2012
Posted to Courts in general

Vacancy on Supreme Court 2012 - More on: When exactly is CJ Shepard retiring? [Note correction]

The ILB now has the answer:

Here is the first paragraph of Art. 7, Sec. 3:
Section 3. Chief Justice. The Chief Justice of the State shall be
selected by the judicial nominating commission from the members of
the Supreme Court and he shall retain that office for a period of five
years, subject to reappointment in the same manner, except that a
member of the Court may resign the office of Chief Justice without
resigning from the Court. During a vacancy in the office of Chief
Justice caused by absence, illness, incapacity or resignation all powers
and duties of that office shall devolve upon the member of the Supreme
Court who is senior in length of service and if equal in length of service
the determination shall be by lot until such time as the cause of the
vacancy is terminated or the vacancy is filled.

Posted by Marcia Oddi on Thursday, March 01, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Jeremy K. Warriner v. DC Marshall Jeep a/k/a DC Marshall, Inc. , a 21-page, 2-1 opinion, Judge Baker writes:

In May 2009, Chrysler LLC, an American automobile icon with a worldwide annual production of approximately 2 million vehicles, filed for Chapter 11 bankruptcy protection. Chrysler then emerged from bankruptcy as a new corporation. As a result, Jeremy Warriner acknowledges that his product liability claim filed in 2005 against Chrysler was discharged. Warriner had both his legs amputated following an accident that caused his Jeep Wrangler made by Chrysler to roll and catch fire. Unable to continue his suit against the manufacturer, Warriner sued the dealership that leased him the car in strict liability as a statutory manufacturer under Indiana Code section 34-24-2-4 that allows a plaintiff to sue the principal distributor or seller of a product if the trial court “is unable to hold jurisdiction” over a particular manufacturer of a product alleged to be defective. Today, we are asked to decide whether a manufacturer's discharge in bankruptcy prevents a trial court from holding jurisdiction over that manufacturer. We conclude it does not.

Appellant-plaintiff Jeremy K. Warriner appeals the trial court's grant of summary judgment in favor of appellee-defendant DC Marshall, Inc. (the Dealership) on Warriner's complaint alleging that the Dealership is strictly liable for injuries that he sustained in an automobile accident under the Indiana Products Liability Act (IPLA) and liable for negligent marketing of an unsafe product. Warriner raises several issues on appeal, two of which we find dispositive. Regarding Warriner's first claim, he argues that because Chrysler LLC's bankruptcy prevented the trial court from holding jurisdiction over the manufacturer, he may, in accordance with the IPLA, hold the Dealership strictly liable. Warriner also argues that genuine issues of material fact exist as to whether the Dealership was negligent in its marketing practices. Concluding that summary judgment was properly entered for the Dealership, we affirm. * * *

DARDEN, J., concurs.
BAILEY, J., concurs in part and concurs in result in part. [that begins, at p. 13] The majority affirms the trial court's grant of D C Marshall Jeep's (“Marshall”) motion for summary judgment. I concur as to the negligent marketing claim. But I concur in result on Warriner's strict products liability claim and write separately because I would affirm the trial court on different grounds. I would affirm the trial court because Warriner voluntarily dismissed Old Chrysler from the case before the effective date of the liquidation of Old Chrysler by the bankruptcy court. Thus, he cannot seek recovery from Marshall on his products liability claim. Further, while I disagree with the majority's interpretation of the Indiana Products Liability Act (“IPLA”), I also do not think we need to reach that issue to decide this case, and would not do so.

NFP civil opinions today (1):

Gersh Zavodnik v. Katrin Gehrt and Imperator Bulldogs Kennel, et al. (NFP)

NFP criminal opinions today (1):

State of Indiana v. Mershaun Scott (NFP)

Posted by Marcia Oddi on Thursday, March 01, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Judge Posner on Searching a Cell Phone Incident to Arrest"

Updating yesterday's ILB summary of Judge Posner's opinion in U.S. v. Flores-Lopex, Prof. Orin Kerr has posted a long entry on the opinion in the Volokh Conspiracy. Here is the beginning, you may LOL, as I did:

I am often filled with a mild sense of both excitement and dread when I learn that Judge Posner has authored an opinion in areas of law that I follow closely. Excitement, because I know it will be fascinating to read. And dread, because I know it will be filled with extensive error-prone dicta on issues not briefed and reasoning that is hard to square with existing precedents. On that score, Judge Posner’s opinion today in United States v. Flores-Lopez doesn’t disappoint. The issue: When the Fourth Amendment allows the police to search a cell phone incident to arrest. The conclusion: As far as I can tell, Judge Posner seems to have some sort of graduated scale in mind, in which minimally intrusive searches of phones are okay as a routine matter incident to arrest but more extensive searches require more justification or maybe a warrant.

Posted by Marcia Oddi on Thursday, March 01, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Small-claims court task force hears public's complaints"

Updating this post about the then-upcoming public hearing at Pike Twp. Small Claims Court, which took place last evening, William J. Booher of the Indianapolis Star has a story today. A quote:

About 60 people attended, and several spoke, during the public meeting at the Pike Township small-claims court on Lafayette Road.
The issues recounted in the story parallel those from earlier stories about the problems with the Marion County system.

Posted by Marcia Oddi on Thursday, March 01, 2012
Posted to Indiana Courts

Ind. Courts - More on: Recap of Charlie White oral argument [Updated]

Updating yesterday's ILB entry, Carrie Richie of the Indianapolis Star has a nearly totally updated story in today's paper. Plus, another great photo from Danese Kenon / The Star, this one captioned: "Justice Frank Sullivan Jr. (left) listened as Justice Brent Dickson asked questions during Wednesday’s hearing on the election challenge." The story begins:

The Indiana Supreme Court raised several questions about voter registration laws during a hearing Wednesday to determine if Charlie White was eligible to run for secretary of state in 2010.

But those questions might not be enough for the state's highest court to order White's removal from the office. The Indiana Supreme Court has never ousted an elected official because of an election challenge.

Supreme Court justices typically defer to voters, said Joel Schumm, a professor at the Indiana University Robert H. McKinney School of Law. It seems likely they will do so in this case, Schumm said, especially since White's voting issues were well-publicized before the election, and he won by a large margin anyway.

[Updated at 1:00 PM] Here is the AP report by Charles Wilson. The interesting conclusion to the story:
There is no timetable for the justices’ ruling, but they likely will rule before Chief Justice Randall Shepard retires in March.

Daniels has named White’s chief deputy, Jerry Bonnet, interim secretary of state, but he isn’t expected to make a permanent appointment until the Supreme Court rules.

White was sentenced Feb. 23 to one year of home detention. He plans to appeal his convictions. If a higher court reverses or vacates his convictions on six felony charges, he could be reinstated as secretary of state.

“He’s out, but not permanently,” said his attorney, David Brooks.

Posted by Marcia Oddi on Thursday, March 01, 2012
Posted to Ind. Trial Ct. Decisions

Courts - "Chief U.S. District Judge sends racially charged email about president"

The Helena Montana Great Falls Tribune has a long story today that begins:

HELENA — Chief U.S. District Judge Richard Cebull on Wednesday admitted to sending a racially charged email about President Barack Obama from his courthouse chambers. * * *

The judge acknowledged that the content of the email was racist, but said he does not consider himself racist. He said the email was intended to be a private communication.

"It was not intended by me in any way to become public," Cebull said. "I apologize to anybody who is offended by it, and I can obviously understand why people would be offended."

Cebull said his brother initially sent him the email, which he forwarded to six of his "old buddies" and acquaintances.

He admitted that he read the email and intended to send it to his friends.

The ILB initially hesitated to post the link to the story, which itself quotes the content of the email, but this story serves as a reminder to lawyers and judges: people will forward your emails--and you can quickly become a national headline.

Posted by Marcia Oddi on Thursday, March 01, 2012
Posted to Courts in general

Ind. Law - Veterinarian charging for writing a prescription?

IC 25-38.1-4-5 provides:

(d) If a veterinarian prescribes a drug for the client's animal, upon request, the veterinarian shall provide the prescription to the client, unless prohibited by state or federal law or to prevent inappropriate use.
The ILB has learned that some vets charge extra for the written prescription.

Posted by Marcia Oddi on Thursday, March 01, 2012
Posted to Indiana Law

Vacancy on Supreme Court 2012 - The ILB is anticipating the release of the Judicial Nominating Commission's report to the Governor

Today marks one week since the Thursday, Feb. 23, 2012 naming by the Judicial Nominating Commission of three finalists' names to be sent to the Governor.

The ILB is anticipating the release of the Judicial Nominating Commission's report to the Governor, possibly today.

Here are some posts on the timing of the 2010 selection process:

Posted by Marcia Oddi on Thursday, March 01, 2012
Posted to Vacancy on Supreme Court 2012