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Monday, April 09, 2012

Ind. Gov't. - "Property tax caps 'devastating' to Indiana municipalities"

Lu Ann Franklin of the NWI Times has this report this evening. Some quotes:

GARY | Property tax caps have become a double–edge sword that create a standardized tax structure but have been "devastating" to Indiana's municipalities, according to the head of the Indiana Association of Cities and Towns.

Matthew C. Greller spoke at the Gary Chamber of Commerce monthly meeting on Monday. The IACT executive director and CEO said Indiana municipalities have already lost out of $180 million they would have received before voters approved adding the property tax caps to the Indiana Constitution three years ago.

"It's easy to say to cities and towns to tighten your belt," said Greller of what he called the No. 1 challenge faced Indiana cities and towns. "We haven't thought through the long–term effects (of tax caps)." * * *

Greller said the Indiana General Assembly and the state government agencies also are negatively affecting local governments.

Of the 900 bills introduced during this legislative session, more than half "have some impact on local government," he said. "The Indiana legislature is taking a very onerous, micromanagement approach. That will have to stop."

State agencies have encroached on "home rule," limiting or taking over the powers of local governments, Greller said. In addition, state government has to certify municipal budgets, but never does so on time, he said.

The recent revelation that the state failed to distribute $206 million in local income taxes to counties spotlights the need to create an audit board that will make certain towns and cities get their money as soon as possible, Greller said.

Posted by Marcia Oddi on Monday, April 09, 2012
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In the Matter of the Involuntary Term. of the Parent-Child Rel. of L.J., and R.J., III; and V.A., and R.J. v. Marion Co. Dept. of Child Services and Child Advocates (NFP)

Allen R. Stout, et al. v. Linda Zabona (NFP)

NFP criminal opinions today (4):

Justin Thomas v. State of Indiana (NFP)

Steven W. Stockwell v. State of Indiana (NFP)

Lonnie Johnson v. State of Indiana (NFP)

Mychael Nance v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 09, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court disciplinary order "conditionally directing imprisonment"

In the Matter of Timothy D. Freeman, an order dated April 3rd, is headed: "Published order finding respondent in contempt of court, imposing fine, ordering disgorgement of retainer, and conditionally directing imprisonment." Some quotes:

This Court has inherent and statutory authority to punish contempt of court by fine and imprisonment. See Matter of Mittower, 693 N.E.2d 555, 559 (Ind. 1998). In determining an appropriate punishment, the Court considers, among other factors, any continuing risk to the public or profession. See id.

For Respondent's egregious violations of this Court's suspension order over several months, the Court concludes that Respondent should pay a substantial fine, disgorge the $500 retainer he received while suspended, and be imprisoned for a period of thirty (30) days unless he pays the fine and disgorges the retainer by the deadlines set forth below. In addition, the Court will take Respondent's contempt into consideration in any future disciplinary or reinstatement actions concerning Respondent. * * *

If Respondent fails to comply with this Order by the deadlines set forth above, Respondent will be ordered to serve a term of imprisonment for a period of thirty (30) days, without the benefit of good time, and the Sheriff of the Supreme Court of Indiana will be directed to take Respondent into custody and turn him over to the Indiana Department of Correction.

The Order is signed:

Brent E. Dickson
Acting Chief Justice of Indiana

All Justices concur; except David, J., who dissents in part, believing that longer imprisonment should be required; and Massa, J., not participating.

Posted by Marcia Oddi on Monday, April 09, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Marion County Board of Registration Refuses to Comply with Indiana Law Mandating that Voter Registration Lists be Provided to Nonslated Candidates" [Updated]

That was the heading to this post from Ogden on Politics, dated March 17th, 2012.

Today Advance Indiana follows up with a post headed "Computerized Voter Registration Data Not Available To Non-Slated Candidates ."

[Updated at 4:20 PM] Here is an update posted at Ogden on Politics.

Posted by Marcia Oddi on Monday, April 09, 2012
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending April 5, 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 Thursday, April 5, 2012. It is one page (and 8 cases) long.

One transfer was granted last week:

• Corey Fletcher v. State of Indiana - This is a Jan. 18, 2012, 2-1 COA opinion, where "Corey Fletcher appeals the trial court’s denial of his motion for discharge under Ind. Criminal Rule 4(B)." The COA reversed.

Posted by Marcia Oddi on Monday, April 09, 2012
Posted to Indiana Transfer Lists

Ind. Courts - General Assembly revised several statutes this session in response to Supreme Court opinions

Dan Carden reports today in the NWI Times:

INDIANAPOLIS | On a yellow sheet of paper torn from a legal pad, Indiana Supreme Court Justice Frank Sullivan Jr. keeps the list.

It's just four Supreme Court case names and four Indiana Senate bill numbers, but amid those words and numbers lies the balance of power between the state's judicial and legislative branches.

This year's General Assembly approved four measures signed into law by Gov. Mitch Daniels that overturned four 2011 rulings of the state's high court. In each case, state law was clarified or changed in response to the court's interpretation of it.

"Three of them I thought they were wrong to do, and one of them I thought they were right to do," Sullivan said. "Each of them represents an interesting story of how the legislative and judicial branches interact."

Regarding the three law changes Sullivan objected to, Senate Enrolled Act 1 details individual self-defense rights following Barnes v. State, which said Hoosiers can never resist police. Senate Enrolled Act 97 redefines public intoxication in response to Moore v. State. Senate Enrolled Act 132 declares underground aquifers cannot be regulated by local governments.

On the other hand, Sullivan's dissent in Citizens State Bank v. Countryside formed the basis of Senate Enrolled Act 298, setting the priority of mortgage holders in a foreclosure action.

While Sullivan believes the Legislature did not need to act on the first three, he acknowledges it has the right to do so.

"Under our separation of powers in the government and the way our constitution works, the Legislature has the last word," Sullivan said. "Except when it comes to matters of constitutional law."

More from the story:

While the governor could have vetoed the four new laws, Daniels said he generally defers to the General Assembly, especially since only a simple majority is required to override his veto.

"If the Legislature is responding to the judgment of the judicial branch by changing the laws of the state, I have to have a really, really, really overwhelming reason to veto that," Daniels said. "And I have to do it knowing that I may not have any effect on the final outcome."

Sullivan said the stakes are considerably higher when a Supreme Court ruling interprets the Indiana Constitution, such as recent decisions approving a voter photo identification requirement and authorizing the Indiana Toll Road lease.

In those cases, short of amending the constitution — typically a four-year process — there is no legislative remedy.

"Where the rubber meets the road is when the court says that something the Legislature passed is unconstitutional," Sullivan said. "Because when the court says that, it's saying it's beyond the power of the Legislature to do what it did, and that's a hell of a thing."

A sidebar links to the 2012 enrolled acts and the related Supreme Court opinions (it uses the term "overturn", which may not be entirely accurate, the ILB prefers "revises statutes in response to ..."):

SEA 1 -- Barnes v. State

SEA 97 -- Moore v. State

SEA 132 -- Avon v. West Central Conserv. Dist.

SEA 298 -- Citizens State Bank v. Countrywide

ILB: Note that in the opinion on rehearing in Barnes, the Court in effect invites that General Assembly to act:

This also reflects the basis for our holding about defenses available to criminal defendants charged with violence against police officers: the ruling is statutory and not constitutional. The General Assembly can and does create statutory defenses to the offenses it criminalizes, and the crime of battery against a police officer stands on no different ground. What the statutory defenses should be, if any, is in its hands.

In Moore the opinion states:

Whether conduct proscribed by a criminal law should be excused under certain circumstances on grounds of public policy is a matter for legislative evaluation and statutory revision if appropriate. The judicial function is to apply the laws as enacted by the legislature. We decline the defendant's request to reverse her conviction on public policy grounds.

SEA 298 re Countrywide is the subject of this post from yesterday, quoting the Indiana Commercial Foreclosure Law blog.

Finally, in Avon, the Court points out:

Instead, we think the authority granted to Avon under the Watercourse Statutes is sufficient to permit it to regulate the Township‘s exercise of power pursuant to the Park Resources Statutes. This harmonizes the effect of both sets of statutes—our first objective when confronted with two seemingly-conflicting provisions. Klotz v. Hoyt, 900 N.E.2d 1, 5 (Ind. 2009). We presume that the Legislature intended for both of these provisions to have effect, and thus construe them together "so as to produce a harmonious statutory scheme." Id. (quoting Sanders v. State, 466 N.E.2d 424, 428 (Ind. 1984)).

Posted by Marcia Oddi on Monday, April 09, 2012
Posted to Ind. Sup.Ct. Decisions | Indiana Law

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, today!

From Sunday, April 8, 2012:

• Ind. Courts - "A ‘voice’ for stalking victims: Women tell of fear, uncertainty, push for system changes"
• Ind. Gov't. - More on "Daniels legacy on line with Ind.'s $205M tax error" - metrics and accountability
• Ind. Law - 3-part series on abandonment of mortgaged property
• Ind. Gov't. - "Daniels legacy on line with Ind.'s $205M tax error" - a recap
• Environment - Merger of pollution boards worries some
• Ind. Law - "Stand your ground" in Kentucky, Indiana and Florida
• Ind. Decisions - More on "Ruling gives I-69 crews immediate access to Monroe County property to survey land for construction: Judge says tree-cutting ban presses INDOT to fell trees before April 1"
• Environment - "New Indiana livestock farm rules focus of meetings"
• Courts - "Though there was a will, Fifth Third found a way to save Boots"
• Ind. Gov't. - "No flurry of late pardons: Daniels vows to stay frugal"

From Saturday, April 7th, 2012:

No entries.

From Friday afternoon, April 6th, 2012:

• Ind. Law - "Indiana lowers cutoff age for receiving child support - Drops to 19 from 21 effective July 1"

Posted by Marcia Oddi on Monday, April 09, 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 4/9/12):

• No oral arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 4/16/12):

Friday, April 20th

• 9:30 AM - Michael J. Lock v. State of Indiana (35S04-1110-CR-622) - Police stopped Michael Lock while he was operating a Yamaha Zuma at forty-three miles per hour. In the Huntington Circuit Court, Lock was convicted of operating a “motor vehicle” while his driving privileges were suspended. The Court of Appeals reversed on grounds the State failed to prove that the Zuma was a motor vehicle as defined in Indiana Code sections 9-13-2-105 and 109. Lock v. State, 952 N.E.2d 280 Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
  [Note: Argument will be held in the Gathertorium located in the main building on the campus of Martin University, which is located at 2171 N Avondale Place, Indianapolis, IN 46218. No webcast]]

  ILB: This was a 2-1, July 26, 2011 COA opinion where the majority wrote: "Lock argues the State did not prove he operated a motor vehicle, because his Zuma is a motorized bicycle, which, pursuant to Ind. Code § 9-13-2-105(d), is exempt from the provisions of the statutes regarding operation of a motor vehicle while privileges are suspended. We agree the State did not prove the Zuma was a motor vehicle; however, neither does the record before us permit us to hold the Zuma is a motorized bicycle. * * * We decline the State's invitation to relieve it of its burden to prove every element of a crime it prosecutes."

Webcasts of Supreme Court oral arguments are available here.

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This week's oral arguments before the Court of Appeals (week of 4/9/12):

Monday, April 9th

• 2:00 PM - Dusty E. Rhodes vs. State of Indiana (11A01-1109-CR-487) - Dusty Rhodes was found guilty by a jury of dealing in methamphetamine, a Class B felony, and sentenced by the trial court to six years. Rhodes appeals his conviction, contending on appeal that the evidence is insufficient to identify the methamphetamine admitted at trial as the substance an undercover officer took possession of during the controlled buy. The Scheduled Panel Members are: Chief Judge Robb, Judges Baker and Kirsch. [Where: Court of Appeals Courtroom (Webcast)]

Tuesday, April 10th

• 2:30 PM - Ryan Sheckles vs. State of Indiana (10A04-1108-CR-423) - Whether sufficient evidence supports Defendant’s conviction for murder and whether the sentence is appropriate considering the nature of the crime. The Scheduled Panel Members are: Judges Baker, Darden and Bailey. [Where: Supreme Court Courtroom (Webcast)]

• 4:00 PM - Meschach Berry vs. State of Indiana (49A04-1109-CR-474) - Meschach Berry appeals his conviction for possession of marijuana based on the admission of evidence obtained through an inventory search of his impounded vehicle. The issues on appeal are: (1) Whether impound of Berry’s vehicle was justified under the police’s community caretaking function and conducted according to standard operating procedure; (2) Whether the inventory search was conducted in accord with police standard operating procedures; and (3) Whether the search was unreasonable under Article 1, Section 11 of the Indiana Constitution. The Scheduled Panel Members are: Judges Friedlander, Riley and Mathias. [Where: Marian University, 3200 Cold Springs Road, Indianapolis]

Next week's oral arguments before the Court of Appeals (week of 4/6/12):

Monday, April 16th

• 2:00 PM - Jason Michael Palilonis vs. State of Indiana (42A05-1104-CR-197) - Jason Palilonis was convicted of Class B felony rape for raping a fellow Vincennes University student after a night of partying. A year after the incident, the victim, B.S., committed suicide. At trial, statements Palilonis made to the police, statements B.S. made to the nurse during her sexual-assault examination, and evidence of B.S.’s death were admitted into evidence over Palilonis’s objections. Testimony from a nurse vouching for the credibility of B.S.’s statements about the rape was also admitted, but without objection from Palilonis. The jury found Palilonis guilty, but days later a juror alleged juror misconduct, specifically that the foreperson told the jury the judge thought Palilonis was guilty. Evidentiary hearings were held and the trial court found that no misconduct occurred. On appeal, Palilonis contends that the trial court abused its discretion by: (1) denying his motion to set aside the verdict and correct errors based on alleged juror misconduct; (2) allowing the jury to be informed that B.S. was unavailable because she was deceased; (3) admitting statements made by B.S. during her sexual-assault examination; (4) admitting the vouching statements made by the nurse; and (5) admitting the statements he made during his police interview. He also contends that the evidence is insufficient to convict him of Class B felony rape The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes. [Where: Valparaiso University, Tabor Classroom Wesemann Hall School of Law 656 S. Greenwich Street Valparaiso]

Tuesday, April 17th

• 2:20 PM - Duane T. Lee vs. State of Indiana (49A04-1105-CR-225) - Duane Lee was arrested when he was seventeen years old on suspicion of involvement in a burglary and rape shortly after the incident occurred. At the police station in the early hours of the morning, Lee was not very alert. Lee’s mother, who had come to the police station, consented to DNA swabs being taken from Lee’s person. Lee was charged in adult court with fourteen counts, including Class A felony rape, Class B felony burglary, and seven counts of Class A felony criminal deviate conduct. The DNA evidence was introduced at trial without objection by Lee. A jury found him guilty of all charges but for one count of criminal deviate conduct. Lee appeals his convictions, contending the trial court committed fundamental error in admitting the DNA evidence because his constitutional rights were violated when the police obtained the DNA evidence by consent of his mother without meaningful consultation between Lee and his mother first, and without Lee joining knowingly and voluntarily in the waiver of his rights. The Scheduled Panel Members are: Chief Judge Robb, Judges Riley and Crone. [Where: Walden Inn and Conference Center DePauw University Greencastle, Indiana ]

• 3:00 PM - William Pargo vs. State of indiana (49A05-1104-CR-174) - William Pargo was charged with conspiracy to deal cocaine. After the State made numerous amendments to the charging information, Pargo petitioned for and was granted an interlocutory appeal. He argues the amended information stated nearly countless possible allegations, so he did not have fair notice of the charges against him and could not be fairly tried by a jury. The Scheduled Panel Members are: Judges Judges Kirsch, May and Bradford. [Where: Morgan County Courthouse Superior Court 3 2nd Floor, Courthouse Square 10 E. Washington Street Martinsville, Indiana ]

Thursday, April 19th

• 1:30 PM - William Carter vs. R. Hilliard, et al (49A02-1106-PL-582) - William T. Carter, derivatively on behalf of CNO Financial Group, Inc. (“CNO”), filed a complaint against current and former members of the board of directors and officers of CNO (collectively "Defendants") alleging in part breach of fiduciary and good faith duties. Defendants filed a motion to dismiss the amended complaint on the ground that Carter had failed to make a showing that pre-suit demand on CNO’s Board of Directors was futile. Because CNO was incorporated in Delaware, that state’s law applies. At issue on appeal is the proper demand futility standard to be applied, which in turn depends on the applicability of the exculpatory clause in the charter of incorporation and whether the trial court correctly concluded that the amended complaint asserted oversight claims. The Scheduled Panel Members are: Chief Judge Robb, Judges Najam and Vaidik. [Where: Court of Appeals Courtroom (Webcast)]

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.

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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, April 09, 2012
Posted to Upcoming Oral Arguments