Wednesday, April 04, 2012
Court - TaxMasters (yes, you've seen their ads on cable) files for bankruptcy
Alex Weprin of Mediabistro has the story, headed "TaxMasters Bankuptcy Screws CNN, Fox News, MSNBC."
Vacancy on Supreme Court 2012 - "Those who are eager to see it would serve their cause better by not making a whole lot more noise, because it would taint the choice"
That is a quote from Dan Carden's story posted today on the NWI Times site. The brief story is headed "Demands for female Supreme Court justice won't influence Daniels' pick." It begins:
INDIANAPOLIS | Gov. Mitch Daniels will not deviate from his criteria of merit, qualifications, principles and temperament in selecting Indiana's next Supreme Court justice, even as pressure grows to appoint a woman to the state's high court.
The Republican governor said Tuesday he doesn't need anyone to remind him Indiana is one of three states without a female Supreme Court justice but said he won't appoint a woman just to appoint a woman.
"Those who are eager to see it would serve their cause better by not making a whole lot more noise, because it would taint the choice," Daniels said. "Beyond some point it would discredit the person I pick if it looked like it was purely political or an appeal for cheap points."
Ind. Decisions - "A federal court ruling Friday means the town of Crothersville and its water and sewer utilities violated a couple’s constitutional right to due process when their utilities were cut off for nonpayment in April 2010."
Dan Davis has the story in at Seymour/Jackson County Trib Town:
That ruling from U.S. District Judge Sarah Evans Barker also means other town residents may have had their rights violated, attorney Steve Shane of Newport, Ky., said Monday.Read the story for the facts, which are somewhat complex.
Shane and attorney Stephen R. Felson of Cincinnati are representing Melanie J. Wayt and Walter G. Wayt against the town and a Crothersville man selling them a Howard Street residence on contract.
The ruling on a number of summary judgment requests also means the Wayts’ lawsuit can proceed to trial.
“We are attacking the town’s policy of terminating service without any due process,” Shane said after filing the lawsuit in U.S. District Court on July 26, 2010.
The town has been represented by its insurer’s attorney, R. Jeffrey Lowe of New Albany. Lowe could not be reached for comment.
The lawsuit stems from a decision by the town to terminate water service to the Wayts’ home at 412 W. Howard St. In the lawsuit, Melanie Wayt contends she was out of town at the time, and her father was taking care of her affairs locally.
In addition, the ILB has obtained a copy of Judge Barker's 32-page, 3/30/12 ruling.
Ind. Gov't. - "Geneva eyes own seat-belt law"
Kristin Baron reports in the Decatur Daily Democrat:
The town of Geneva is looking into a seatbelt ordinance that would generate more money for the town.
At Tuesday's meeting of the Geneva Town Council, Marshall Rob Johnson said that as it currently stands, when a town police officer issues a $25 ticket to a driver for violating the seatbelt law under the state ordinance, "$21 goes to the state and $4 goes to the town."
If a town ordinance is in place, a police officer could choose to ticket a driver either under the local ordinance or the state ordinance. Johnson pointed out that if a driver is ticketed under the town ordinance for a seatbelt violation, the money from that ticket would go directly to the town and the driver would not receive points against his driving record.
Geneva Clerk-Treasurer Bill Warren said, "It doesn't mean we're looking to write more tickets, but to keep the money local [from the tickets that are written]."
No motions or decisions were made regarding the matter.
Environment - "Ohio River tops nation in pollution discharges"
So reports James Bruggers today in the Louisville Courier Journal. The long story begins:
The Ohio River again leads the nation in the amount of toxic chemicals dumped into it by industries, according to a new report by a Washington, D.C.- based environmental group.
The 32 million pounds of discharge into the Ohio is about 1 million pounds more than the last time the group analyzed pubic data on factory discharges into the nation’s waterways three years ago.
“America’s waterways are a polluter’s paradise,” said Shelley Vinyard, a water advocate with Environment America, which published the report recently as a follow up to a similar study in 2009.
She noted that the Clean Water Act of 1972 was supposed to clean the nation’s waters by 1985. “It’s clear we have not reached that goal,” she said.
The state of Indiana led the nation in total amount of toxic discharges to waterways, with more than 27 million pounds, the report found. Indiana was followed by Virginia, Nebraska, Texas and Louisiana.
Law - "Only the naive think all legislators write their own bills."
New Jersey newspapers are reporting on the American Legislative Exchange Council (ALEC). Here are three stories from Salvador Rizzo of NJ Star-Ledger, headed:
- "Some of Christie's biggest bills match model legislation from D.C. group called ALEC"
- "At Arizona gathering, ALEC teaches lawmakers how to turn conservative ideas into law"
- "Despite similarities, officials say they did not use model ALEC bills for Christie's education legislation"
Only the naive think all legislators write their own bills. They rely on staff, advisers and experts to help with the words that ultimately become law. ALEC provides some of that help — but it masks its lobbying as charity work.Here is a list of earlier ILB entries on ALEC.
The work has an icky vibe: ALEC charges corporations such as Johnson & Johnson, Verizon and Wal-Mart huge sums for the chance to draft bills alongside its 2,000 member legislators. Lawmakers can then download those bills and introduce them as their own back home. Meanwhile, those bills promote the self-serving policies — such as the NRA’s Stand Your Ground laws — of ALEC’s members.
These corporations buy access that’s off-limits to the average citizen. And when a lawmaker introduces an ALEC-written bill, it creates the appearance of puppets on string, and the risk that a lazy legislature could, essentially, outsource a core responsibility: turning ideas into laws. Or even generating the ideas in the first place, like an army of trained monkeys.
The real head-scratcher, however, is how this incredibly influential organization has somehow evaded the same scrutiny and transparency required of professional lobbyists.
ALEC has the tax-exempt 501(c)(3) status of a nonpartisan charity. It calls itself a forum for legislators to share ideas, and says its mission is policy, not politics, favoring free markets and limited government. Yet it’s hard to see how its corporate memberships and bill-writing — which critics say has a conservative, political slant — are different from a lobbyist paid to rub shoulders and peddle influence.
Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)
For publication opinions today (5):
In Melanie Webster v. Walgreen Co. , a 7-page opinion, Judge Crone writes:
Melanie Webster filed a complaint against Walgreen Co. by certified mail. Her first attempt at mailing the complaint was returned due to insufficient postage. By the time Webster resent and filed the complaint, the statute of limitations had run. Webster filed a motion to amend the filing date of her complaint to the date that she had originally sent the complaint, which was within the statute of limitations. The trial court denied the motion and thereafter granted Walgreen judgment on the pleadings because the complaint was untimely. Webster appeals the denial of her motion to amend the filing date. We conclude that “mailing” for purposes of the Indiana Trial Rules requires the sender to affix sufficient postage. Therefore, Webster’s complaint was not filed until her second attempt at mailing and was untimely. We affirm the judgment of the trial court. * * *In Calvin Hair v. Mike Schellenberger and Lawyers Title Ins. Corp., Wells Fargo Bank, N.A., Felix Adejare, and Sharon Adejare, a 12-page opinion, Judge Crone writes:
On December 13, 2010, Webster’s attorney, C. Stuart Carter, placed the complaint, summons, appearance, and filing fee in an envelope, which he weighed himself. Carter’s postage scale indicated that the envelope weighed six ounces. Carter used Stamps.com to determine that the appropriate amount of postage to send the envelope by certified mail was $6.83. Carter printed the stamp and deposited the envelope in the mail.
The postal service apparently reweighed the envelope and determined that it weighed slightly more than six ounces and that there was $.17 postage due. The postal service delivered the envelope to the clerk of the Morgan County Courts on December 14, 2010, and the clerk declined to pay the postage due.1 The envelope was returned to Carter on December 21, 2010, a few days after the two-year statute of limitations had run. Without opening the envelope, Carter reweighed it. His scale still read six ounces, but he decided to print a stamp for eight ounces to give himself a margin of error. Carter placed the new stamp on the envelope and resent it on December 21. The clerk received it the next day and stamped the complaint filed on December 22, 2010.
This is a dispute over who has superior title to a piece of property on Talbott Street in Indianapolis (“the Talbott Street Property”). When Mike Schellenberger purchased the Talbott Street Property at a foreclosure sale, the title search did not show a money judgment that Calvin Hair had obtained against former owners Felix and Sharon Adejare (collectively, “the Adejares”). The judgment had never been indexed in the county records, and Schellenberger was unaware of it until a year later, when Hair sent him a letter claiming that he had a judgment lien on the Talbott Street Property. Schellenberger subsequently filed an action against Hair to remove the cloud on the title. Schellenberger, his lender, and his title company (collectively, “the Appellees”) sought summary judgment on the basis that Schellenberger was a bona fide purchaser (“BFP”) as a matter of law. Hair filed a motion for partial summary judgment, seeking a declaratory judgment that the Adejares had fraudulently conveyed the Talbott Street Property and that he had a judgment lien giving him superior title.Mid-Century Ins. Co. v. Estate of Thomas Lynn Morris, by and through his personal representative, Tommy Lynn Morris, Daemen Sampson, and Dora Robinson
The trial court denied Hair’s motion for partial summary judgment and granted the Appellees’ motions for summary judgment. Hair appeals, claiming that the Adejares fraudulently conveyed the Talbott Street Property and that his judgment against the Adejares constituted a valid judicial lien of which the Appellees should have been aware. Finding that Hair’s judgment was outside the chain of title and that Schellenberger was a BFP as a matter of law, we affirm the trial court’s decision in all respects.
In Mark Todisco v. State of Indiana , a 6-page opinion, Judge Crone writes:
In March 2009, Mark Todisco was charged with disorderly conduct and intimidation based on his refusal to cooperate with police during a domestic disturbance at the home of his son and daughter-in-law. After numerous delays, his jury trial was eventually set for September 2010. In August 2010, he filed a motion for discharge under Indiana Criminal Rule 4(C), alleging that he should be discharged due to the State’s failure to bring him to trial within one year. The trial court denied his motion, and a jury found him guilty of class B misdemeanor disorderly conduct.NFP civil opinions today (4):
Todisco now appeals, claiming that the trial court erred in denying his motion for discharge. Finding that he waived this issue by failing to promptly and specifically object when the trial date was set beyond the one-year period, we affirm.
NFP criminal opinions today (5):
Ind. Courts - Even more on: Final Arguments Today in IBM/State case
Updating this entry from April 3rd, here are some good stories today on yesterday's closing arguments:
- Niki Kelly, FWJG - "IBM, state make closing arguments: Ruling in welfare-system case weeks away."
- Charles Wilson, AP - "IBM: Indiana canceled deal because of budget woes."
- Carrie Ritchie, IndyStar - "No quick ruling expected in lawsuits over Indiana welfare modernization."
Ind. Law - Still more on: "Garrett High School Senior Expelled For Tweeting Profanity"
Updating this ILB entry from March 30th, where the Fort Wayne Journal Gazette wrote in an editorial:
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.is this newer, lengthy, nationally disseminated AP story by Charles Wilson, here in the Atlanta Journal Constitution and headed "Student's profane tweet stirs free-speech debate." A quote:
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.
Carroll insists he made the tweet on his own time using his own computer, making it none of the school's business. But school officials in the small city of Garrett, about 20 miles north of Fort Wayne, contend that the teen used either his school-issued computer or the school network. The details could spell the difference between a routine school discipline case and a broader First Amendment dispute. * * *
First Amendment and students' rights experts agree with him. If Carroll was using his own computer and network to send the tweet, the school's action was "an incredible overreach and overreaction that arguably raises not only First Amendment but Fourth Amendment issues," said David Hudson, a scholar at the First Amendment Center at Vanderbilt University in Tennessee. The Fourth Amendment protects citizens against unreasonable searches and seizures.
Since 1969, the U.S. Supreme Court has generally ruled that students have free-speech rights, and schools can prohibit their speech only if it is vulgar or disruptive to schoolwork or other people. But that power doesn't reach far beyond school property.
"I think it makes a big difference where this was done," said Ken Falk, legal director of the American Civil Liberties Union of Indiana.
Carroll insists he was not using his school-issued computer and was not logged onto the school network. His mother said her son had insomnia and was up tweeting at about 2:30 a.m. "What are they doing, following him 24/7?" she said.
School officials insist they are not.
"It was either on the school network or one of the school computers," said President Tony Griffin, vice president of the Garrett-Keyser-Butler school district. "It wasn't any of his own personal network or computer that caused this."
Superintendent Dennis Stockdale said the school computer network has a federally required filter that flags certain prohibited content, whether it's foul language or a pornographic website, anytime a student or teacher posts or accesses it.
Students must sign a "Respectable Use Policy" in which they agree not to visit websites or forward communications that are "inappropriate," but the document doesn't specifically mention language and says nothing about students' own posts.
Stockdale was uncertain whether a school computer might download Internet content that had been posted from a personal device earlier when a student logged onto their Twitter or Facebook account at school.
"Whether it's already on there or not ... if they bring it up on their school computer then, then it's a school issue," Stockdale said.
Legal experts say schools aren't getting much help from the courts. Lower court rulings have varied widely, and the Supreme Court has declined three times this term to review similar student off-campus speech.
"School officials don't really know what legal standard applies," said Emma Llanso, policy counsel at the Center for Democracy and Technology, a nonprofit public interest group in Washington.
With little help from the courts, school officials and state lawmakers across the U.S. are groping for any kind of guidance on the issue.
New Jersey legislators last year passed a law aimed at curbing cyberbullying that also compels administrators to track students' online behavior away from school.
"I think it's such a reach that it's absurd," said Charles Maranzano, superintendent of the Hopatcong, N.J., school district. "I think it's completely illegal that we're being asked to investigate into the private lives of people outside the schools."
Indiana lawmakers this year considered a bill that would have increased school officials' authority over off-campus behavior. Supporters said it was motivated by concerns over bullying, but critics contended it was a response to a federal court ruling last August that found a northern Indiana school district violated the First Amendment rights of two teenage girls by punishing them for posting sexually suggestive photos on MySpace during their summer vacation.
The bill bogged down over First Amendment concerns and was referred to a study committee.
"As we got deeper and deeper into the subject, we found it becoming very complex ... particularly concerning technology," said the bill's author, Republican Rep. Eric Koch of Bedford.
Ind. Courts - "Special prosecutor appointed in ballot petition case"
A brief story in the South Bend Tribune reports that:
SOUTH BEND — The county prosecutor has stepped aside in the ballot petition case involving former county Democratic Party chair Butch Morgan and three others.Here is an earlier AP story giving background, headed "Ex-Democratic official charged in Indiana petition forgery."
According to a press release, Mike Dvorak on Tuesday petitioned the court to appoint a special prosecutor in the case "for the reason that he may be called as a witness."
"Under the Indiana Rules of Professional Conduct … 'a lawyer shall not act as an advocate at trial in which the lawyer is likely to be a necessary witness.'"
Dvorak's signature is one of several allegedly forged on petitions to place Democrats Barack Obama and Hillary Clinton on the Indiana primary ballot in 2008.
In Dvorak's place, the court has appointed former Vanderburgh County Prosecutor Stanley M. Levco special prosecutor, the press release states.
The prosecutor's office on Monday charged Morgan, Bev Shelton, Pam Brunette, and Dustin Blythe in the case. The four face multiple felony counts.
Ind. Courts - "State audit questions Clark court's fees"
Ben Zion Hershberg reports today in the Louisville Courier Journal in a lengthy story:
The Indiana State Board of Accounts has questioned more than $2.5 million collected from motorists on traffic tickets issued in Clark County over 5 1/2 years, saying alcohol and drug fees ranging from $18 to $50 per ticket shouldn’t have been charged for traffic offenses that didn’t include alcohol or drugs.Here is the 12-page SBA Audit Report of the Clerk of the Clark County Court, for calendar year 2010, filed 3/23/12.
“These offenses were not substance use-involved offenses and the traffic offenders did not receive alcohol and drug program services,” says the board of accounts audit for Jan. 1, 2008, through Dec. 31, 2010, which was issued last month.
State law doesn’t allow such charges, the audit says.
Joseph Weber, Judge of Clark County Circuit Court 3, which was named Superior Court 3 until this year, said he has discontinued collecting alcohol and drug fees on traffic tickets that don’t involve such issues because of the audit questions.
Stephen Fleece, who was judge of Superior Court 3 for more than 20 years, said he believes the board of accounts is wrong about the alcohol and drug fee. He said the court provided a service to traffic violators by giving them a pamphlet that included information about the dangers of driving when using alcohol or drugs and the availability of an alcohol and drug assessment free of charge.
It is the provision of such information, Fleece said, “which the judges consider a service.” * * *
As in the previous audit, the board of accounts again questions $1,007,098 in contributions made by Fleece in 2008 to organizations including $4,500 to a sports league in Borden; $132,742 for automobiles, carpeting and other court purchases; a lawnmower and trailer for the sheriff’’s department; and radar guns, motorcycle trailers and other items for the Indiana State Police.
Ind. Courts - "LaPorte prosecutor under investigation"
Here is the story, reported by Stan Maddux in the South Bend Tribune. It begins:
Allegations of misconduct by LaPorte County Prosecutor Robert Szilagyi are being reviewed by the Indiana Supreme Court Disciplinary Commission.
In a prepared statement, Szilagyi said he could not offer specifics about the allegations because the investigation by the disciplinary commission is ongoing.
He did say the issue stems from a divorce that happened more than three years ago.
Szilagyi added the allegations do not involve the prosecutor's office or any of his clients and occurred before he was elected prosecutor in November 2010.