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Tuesday, April 17, 2012

Ind. Decisions - 7th Circuit decides one Indiana decision today

In US v. Fleming (ND Ind., Miller), an 11-page opinion, Circuit Judge Wood writes:

Kimani Lanier Fleming was found guilty by a jury of several serious drug and firearm charges, for which he received a mandatory life sentence. Fleming’s counsel appealed his conviction on evidentiary grounds, and this court affirmed. Fleming then filed a petition under 18 U.S.C. § 2255 asserting that his counsel had been constitutionally ineffective. In response to Fleming’s petition, the government admitted that it had failed to file its notice of enhanced penalty within the permitted time. This prompted the district court to set aside Fleming’s mandatory life sentence and to hold a hearing on the other issues raised in his § 2255 petition. Ultimately, the court resentenced him to a term of 480 months’ imprisonment. Fleming has appealed again, challenging both his conviction for possession of cocaine base with intent to distribute and his revised sentence. He has no certificate of appealability, however, permitting his appeal on the conviction, and we decline to grant one. The only issue properly before us is whether it was appropriate for the district court to include routine drug purchases as relevant conduct when it computed the revised sentencing guideline range. Finding no clear error in that decision, we affirm Fleming’s revised sentence.

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Zoeller investigating political calls made under guise of AG's office

See the story here at Indy Politics.

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Indiana Government

Ind. Law - Part II of "Sex offender listing intended to protect the public is riddled with errors"

This is Part II, see Part I here.

The ILB has been looking at issues involving the Indiana sex offender registry for a number of years. To expand on the Sunday Star story, I contacted two attorneys who I've turned to in the past for their expertise on this topic: Kathleen Sweeney, Indianapolis, who successfully argued the Wallace case before the Indiana Supreme Court; and Cara Wieneke, Plainfield, who routinely handles registry removal cases.

My first reaction to reading Sunday's story was, what is the intended purpose of the sex offender registry? Is it to further punish those convicted of sex offenses? Or is it to provide notice to citizens of sex offenders' presence in their neighborhoods? If the latter, then accuracy is important.

I also thought the story might have put too much emphasis on problems with the list caused by the so-called "Wallace offenders," along with the statements of several law enforcement officials that these offenders should act to get their names off the list. If only it were that easy, as you will see from the two attorneys' remarks that follow.

Here are some initial impressions from Ms. Wieneke:

I felt like the Star story was placing the blame of the inaccuracies on the Wallace ruling. But the inaccuracies are due largely to the fact that the State refuses to remove people who should not be on the registry.

For example, while I sympathized with the sheriff who noted it would take too much time to determine who should be removed under Wallace, the State's decision not to take that time has led to the registry inaccuracies.

The information in this article was fascinating because the primary purpose of the registry, according to our courts, is to provide the community with notification of the whereabouts of sex offender. If the registry is largely inaccurate, then it serves no real purpose. It begins to look a lot more like punishment.

I thought Senator Steele's comments regarding the problems with HB 1204 were right on. What was left out of the article was the fact that the State is now telling offenders that regardless of whether HB 1204 passed, the State intends to act as if it had passed and leave profiles up, even though those offenders were no longer required to register.

I asked:
The story several times blames Wallace offenders for not getting off the register. But as I understand it, the GA and AG have placed roadblocks to getting off, through the statute requiring a full court process in a specific court, etc., whereas judges in Fort Wayne were following a simple, no frills process - simply ordering them removed when shown the paper work. Am I correct?
Ms. Wieneke responded:
Judges in Fort Wayne were removing offenders once they showed them the paperwork, but I think the AG stepped in and started challenging those.

And the funny thing is, here's how they were doing it, at least in a few of the cases I've had. In one case, I was able to get a Wallace offender removed from the registry through an agreement with the prosecutor. Several months later, the Attorney General intervened and moved to set aside the judgment. The AG was seeking an Order with language in it to the effect that his removal under Wallace would not relieve him of his requirements to register under federal law or under parole law in Indiana. I fought the move, but the judge granted the State's request. Thus, my client remained on the registry as a parolee.

I just got a call from someone in my client's same position who is getting ready to end his parole time. He was initially told he would be removed from the registry. Now he is being told he will no longer need to register, but his information (minus his address) will remain on the registry. The Star reporter told me that there are people currently on there in that same position. When you "map" that offender, they appear at their old address. Hence the inaccuracy.

What should be happening is that everything about these offenders should be removed. Completely. This would keep the registry more accurate. I have accepted the fact that they refuse to remove the Wallace offenders on their own without the offender demanding removal. But most of the Wallace offenders I know who haven't asked for removal don't know that they are no longer required to register. So theoretically their information is still accurate.

It's the folks who the counties have decided on their own to label "Wallace offenders" that are mucking things up. Again, if they have identified these offenders as Wallace offenders, then remove them. That would make things better. My guess is that they aren't either because they want to keep as many people on as possible (why?) or because they are trying, without success, to comply with federal SORNA.

Here are some initial impressions from Ms. Sweeney:

On Sunday, the Indianapolis Star reported on accuracy issues regarding the Indiana Sex Offender Registry in Marion County. A convicted sex offender is required to register with the sheriff in each Indiana county where he lives and works. The sheriff, in turn, has responsibility for maintaining the registry and verifying home addresses. Apparently some of these addresses aren’t accurate.

The Star failed to discuss the real problem with the registry. As noted in the article over 90% of sex offenders are friends or family members.

Re the “Wallace offenders.” In 2009, our Indiana Supreme Court found in Wallace v. State, that the registry constituted a form of public shaming and constituted punishment. The Indiana Constitution provides that a person may only receive punishment that was in effect when he or she committed the crime [i.e. no ex post facto penalties]. Since the registry did not become effective until July 1, 1994, no one who committed a sex offense prior to this date can be required to register.

This analysis is fairly simple - was the crime committed before July 1, 1994? If yes, no registration.

However the State of Indiana has continually attempted to find loopholes in this constitutional principle [and Supreme Court ruling] with new theories emerging each time a removal from the registry is granted. The newest legal theory is that although a Wallace offender may not have to register, the State can still keep his information on the registry. The State evidently thinks public shaming only applies to the act of providing your information to the sheriff, and does not include in the electronic display of your photo.

These positions are problematic and deadly. We are doing no favors to our neighbors when we prevent any person from completing his punishment. When we prevent any person from living in a stable home, finding a job, or enjoying the protections of our Indiana Constitution, we almost guarantee the commission of new criminal offenses. Instead of hoping the registry is a dead-on firearm, maybe we should be working to ensure offenders do not re-offend by making re-entry programs more available, and mental health support easy to access.

I asked Ms. Sweeney to point out where the Indiana Supreme Court used the term "public shaming" and what did she mean by "we prevent any person from completing his punishment." I also asked about roadblocks to getting off the list. Ms. Sweeney responded:
Here is the quote from Wallace:
But we agree with the Alaska Supreme Court that "the dissemination provision at least resembles the punishment of shaming . . . ." Doe, 189 P.3d at 1012; see also Smith, 538 U.S. at 115-16 (Ginsburg, J., dissenting) ("[The Alaska Act's] public notification regimen, which permits placement of the registrant's face on a webpage under the label 'Registered Sex Offender,' calls to mind shaming punishments once used to mark an offender as someone to be shunned."). We observe that the Act's requirements also resemble historical common forms of punishment in that its registration and reporting provisions are comparable to conditions of supervised probation or parole. 9 Aside from the historical punishment of shaming, the fact that the Act's reporting provisions are comparable to supervised probation or parole standing alone supports a conclusion that the second Mendoza-Martinez factor favors treating the effects of the Act as [*381] punitive when applied in [**24] this case. Wallace v State, 905 N.E.2d 371 380 (Ind. 2009).
Re "never completing their punishment: "My point on never completing a sentence goes to this issue: If your photo, name and crime remains on the registry [such as is proposed in HB 1204] you will never complete your sentence. The legal argument that I haven't had the opportunity to assert yet is that if you are a Wallace offender then you don't fall under the statutory definition of "sex offender" and cannot be included for any reason on the registry.

Re the question about "roadblocks to Wallace offenders getting off the list: The AG's office and the General Assembly have placed roadblocks. First, I brought these Wallace-type cases as declaratory judgment and the AG's office said one has to file a petition under Title 11. [See examples of some of Ms. Sweeney's filings here.] That approach did not succeed (because you can get fees from declaratory which I was successfully in obtaining in Hendricks County). So the legislature added specific requirements.

Second, when brought under Title 11, the State then would say "well, because of federal funding and Adam Walsh Act, you have to register anyway because of federal law." That didn't work.*

The newest tactic is to say that Title 11 only allows courts to lift registration requirements, and does not allow the court to order removal of the person's photo, name and crime of conviction, because it is public record. That is why in Marion County you will see a photo, and the term "Wallace" on the screen. The AG's office tried to get this passed as a statute in last session - HB 1204.
__________
*Ms. Wieneke notes, however: "I am litigating that very issue now in the appellate court because, unfortunately, that argument still worked in my client's case."

ILB preliminary conclusion. What to take away from all this? Perhaps this: In their efforts to protect the public from sex offenders, our public officials have rendered a recent Supreme Court opinion meaningless and made what could be a useful list useless.

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Indiana Law

Ind. Law - Part I of "Sex offender listing intended to protect the public is riddled with errors"

On Feb. 19th of this year the Indianapolis Star published a long, front-page story about legal sex offender clusters in an Indianapolis eastside motel and in downtown apartment buildings. After quoting from the story, the ILB made this comment:

The ILB highlighted this quote from the Star today today -- "According to the county’s online registry, which an Indianapolis Star review has found to be out of date in a number of places" -- in hopes that this issue, getting a name removed from the list, will be examined in a future story.
This last Sunday the Star ran another lengthy investigative story by Campbell doing just that. The story is headed "Sex offender listing intended to protect the public is riddled with errors."

Here are some quotes from the story
, with ILB insertions in italics:
[After an introduction highlighting some inaccuracies]

Lawmakers on both sides of the aisle, as well as a major children’s advocacy group, say such inaccuracies undercut a core purpose of such registries: to protect the public by providing people a way to check whether there are sex offenders near where they live, where they work or where their children go to school. * * *

[Then the story explores why there are so many inaccuracies]

Still, a question lingers. Why has the registry — created by the legislature in the mid-’90s amid a national push for such tools — fallen into such disrepair?

There are multiple answers. For one, there is no statewide entity in charge of overseeing accuracy. The Indiana Sheriffs’ Association provides general guidelines, but the daily task of entering and updating information falls to the 92 counties.

From one county to the next, policies — and the resources devoted to the cause — can vary greatly. Each county also must deal with a circumstance unique to Indiana that, if not handled properly, can almost ensure inaccuracy.

[The story zeros in on the so-called "Wallace offenders"]

A state Supreme Court ruling nearly three years ago created a group of offenders known as “Wallace offenders.”

Richard P. Wallace was convicted of his crime in 1989, before the registry existed. In a unanimous decision, the court found that putting him on the registry was retroactive punishment, and unconstitutional. That created an opening for hundreds of others in similar situations.

But in Marion County, where perhaps 20 percent of the offenders on the registry today are “Wallace offenders,” this is the reality: The offenders no longer have to update their information when they move — and don’t — but they often do not officially petition the court to be removed. So, their names are still left on the registry.

The “address” field next to their names is blank. But they show up on the map at the last place they registered, giving the impression that that’s the current address.

The result is that many searches for “Offenders in your area” — the way most people would search — yield inaccuracies. A Star spot check of about 480 of these offenders in Indianapolis confirmed at least 45 cases in which offenders no longer lived where the registry showed them to be. * * *

[Why aren't these names removed?]

[Lt. Robert Hanna of the Marion County Sheriff’s Department, which administers the county’s published list of sex offenders] said he thought all addresses and map locations of Wallace offenders were removed when the county and state switched over to new registry management software nearly two years ago.

The choice to keep the names of Wallace offenders on the public registry, though, is a conscious decision. “If they want their name and face removed from the registry,” Hanna said, “they can go to court and obtain the necessary order to get that done.”

Hanna has support on that front from state officials, who often go a step further to try to keep these offenders’ names public. The attorney general has in a number of cases stepped in to request that an offender be kept on the registry during, or sometimes even after, a hearing to remove that offender’s listing.

Criminal convictions are public information anyway, said the attorney general’s spokesman, Bryan Corbin, and it’s a matter of public safety.

“The Attorney General’s Office takes these legal actions,” Corbin said in an emailed statement, “to ensure that Hoosier families can have the necessary information in order to protect themselves from convicted offenders who might be living in their communities.” * * *

[Counties differ in handling the list]

But not every county thinks that’s worth the potential accuracy problems. Allen County pre-emptively removes all of its Wallace offenders from its portion of the state registry.

“We’re certainly not going to publish an address that’s wrong,” said Detective Cpl. Mike Smothermon of the Allen County Sheriff’s Department, “or an offense that doesn’t require registration.”

Smothermon stressed that he knew nothing about Marion County’s policy and knew only about his own. But Allen County doesn’t keep Wallace offenders on the registry in part because it would be “doing the general public a very big disservice by publishing an address that you’re not verifying.”

Vanderburgh County operates in the opposite direction. The offender registration coordinator at the sheriff’s office there, Mike Robinson, said he doesn’t have the resources to go through everyone registered there and figure out who qualifies as a Wallace offender — much less remove their names or addresses.

“It would be a total monopolization of my time,” he said.

Ultimately, the debate comes down to whether a county believes that it’s better for the public to keep Wallace offenders’ names on the list — meaning, in Marion County at least, that many of the addresses will be wrong — or to provide the public with an accurate and fully updated registry. * * *

[The story points to other issues with the list, such as the fact that the software places names of prisoners incarcerated in Marion County Jail and Indiana Department of Correction and places these offenders on Marion and Indiana avenues.]

[Legislative study planned ...]

This summer, lawmakers plan to hold a study session on the registry, in part because of a desire to provide more consistency from county to county.

That was the aim of House Bill 1204 this past legislative session. It passed the House on a 93-0 vote.

The bill, however, was not aimed at cleaning up the registry or increasing accuracy.

“The intent of the law,” said Rep. Tom Dermody, R-LaPorte, “was to stop counties from removing individuals from the registry.”

An offender who stops having to update his address, the bill said, would not be entitled to have any of his information removed from the registry.

Dermody said he worried that if Indiana took offenders off it, the state would become a “welcoming ground” for similar offenders from other states.

The bill’s co-author, [State Rep. Ed DeLaney, D-Indianapolis], echoed that statement, saying he wanted to err on the side of keeping too many offenders on there.

Some, however, argue that while such a tough-on-offenders stance is popular, ultimately it could render the registry irrelevant.

And that’s in large part why the bill failed in the Senate’s Corrections, Criminal and Civil Matters Committee.

[State Sen. Brent Steele, R-Bedford], the committee’s chairman, remembers helping to pass the law that established that “Sexually Violent Predators” — offenders deemed to be a high risk for reoffending — had to register for life.

What’s the point of that distinction, he asked, if everyone’s going to stay on there anyway?

But Steele also was concerned that the bill would only exacerbate the problems uncovered by The Star’s examination.

At some point in the future, Steele worried, the registry would be clogged with so many offenders, with so much out-of-date information, that users would become overwhelmed and “quit using it.”

“And then,” Steele said, “we’ve defeated our purpose.”

The ILB has been looking at issues involving the Indiana sex offender registry for a number of years. So expand on the Sunday Star story, I contacted two attorneys who I've turned to in the past for their expertise on this topic: Kathleen Sweeney, Indianapols, who successfully argued the Wallace case before the Indiana Supreme Court; and Cara Wieneke, Plainfield, who routines handles registry removal cases. Our discussion will appear in Part 2, which follows.

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Indiana Law

Courts - "SCOTUS rules lawyers hired by cities can seek immunity"

Reuters has the story here. The case is Filarsky v. Delia. (Thanks to Appellate Daily.)

[More] The ABA said this in their press release today:

In its amicus brief in the case, the American Bar Association urged this position as necessary to protect the public interest.

"State and local governments frequently must retain private counsel for the effective and efficient performance of core governmental functions," the ABA brief stated. Denying qualified immunity to outside lawyers from lawsuits stemming from their government work would deter them from representing public entities and "significantly impact the vital contributions that private attorneys make to effective government performance. On the other hand, ensuring qualified immunity would promote the strong public interest in the continuing representation of public entities by private counsel," the ABA concluded.

Here is the SCOTUSblog page on Filarsky, including all the briefs.

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Courts in general

Ind. Law - "IMPD Chief Paul Ciesielski resigns from post"

First report from the Indianapolis Star, by Carrie Richie.

Breaking scandal: "Mayor Greg Ballard says IMPD mishandled a second vial of David Bisard's blood in the deadly crash case."

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Indiana Law

Ind. Decisions - Supreme Court orders imprisonment of disbarred attorney

Recalling this ILB post (In re Freeman) from April 9, 2012, headed "Supreme Court disciplinary order 'conditionally directing imprisonment,'" the Supreme Court has issued an order April 13th, In the Matter of William J. Rawls, that is headed: "Published order finding respondent in contempt of court, imposing fine, and directing imprisonment." Some quotes from the order:

On November 12, 2010, the Court entered an order disbarring Respondent, effective December 27, 2010. See Matter of Rawls, 936 N.E.2d 812 (Ind. 2010).

The Commission filed a Verified Motion for Rule to Show Cause on January 6, 2012, alleging that Respondent engaged in the following acts in violation of his disbarment: On February 28, 2011, he appeared in the court office of Marion Superior Court 1, Civil Division, requested a file from the court clerk, completed an appearance form on behalf of another attorney, signed the attorney's name on the appearance form, and placed the initials "BW" next to the signature. Witnesses were Magistrate Victoria M. Ransberger and Bailiff Ben Bryant.

The Court entered an Order to Show Cause on January 13, 2012, directing Respondent to show cause in writing, within 15 days of service why he should not be held in contempt for violating Admission and Discipline Rule 23(26)(b) by maintaining a presence or occupying an office where the practice of law is conducted after his disbarment. Respondent was served with the order by certified mail on or before January 24, 2012. It has been over 15 days since Respondent was served with the Order to Show Cause, and Respondent has not responded.

In the absence of any response from Respondent contesting the Commission's charges, we conclude that Respondent violated his duties as a disbarred attorney by maintaining a presence or occupying an office where the practice of law is conducted. * * *

The Court therefore ORDERS that Respondent be sentenced to a term of imprisonment for a period of seven (7) days, without the benefit of good time. The Sheriff of the Supreme Court of Indiana is directed to take Respondent into custody and turn him over to the Indiana Department of Correction. In carrying out this order, the Sheriff of the Supreme Court of Indiana may seek the assistance of the Indiana State Police and any other law enforcement officer, and any such law enforcement officer shall provide the requested assistance.

The Court further ORDERS that Respondent be fined the sum of $500.00. * * *

Brent E. Dickson
Acting Chief Justice of Indiana
All Justices concur, except Massa, J., not participating.

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Tax Court issues one decision today

In Utilimaster Corporation v. Indiana Dept. of State Revenue, an 11-page opinion, Judge Wentworth writes:

This matter comes before the Court on the Indiana Department of State Revenue’s (Department) motion to disqualify Utilimaster Corporation’s (Utilimaster) attorneys pursuant to Indiana Professional Conduct Rule 3.7, the Advocate-Witness Rule. In order to grant the Department’s motion, the Court must find, as a preliminary matter, that Utilimaster’s attorneys are likely to be necessary witnesses at trial. The Court finds they are not. * * *

The Department has invoked Professional Conduct Rule 3.7 in an attempt to conceal its failure to timely pursue discovery as well as to remove Utilimaster’s attorneys from the case, calling their professionalism into question. The Court will not countenance the Rule’s abuse as a procedural weapon by invading Utilimaster’s right to counsel of its choice. See Harter, 5 F.Supp.2d at 663 (citation omitted); LeaseAmerica Corp., 876 P.2d at 192.

ILB: Is it me, or is it unclear to whom "their professionalism" refers? Answer: It is quite clear, unless you read the paragraph out of context.

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Trust No. 6011, Lake County Trust Company, Trustee, Simon Beemsterboer, and Victoria J. Beemsterboer v. Heil's Haven Condominiums Homeowners Assn., an 18-page opinion, Judge Crone writes:

Simon and Victoria J. Beemsterboer reside on property owned by Trust No. 6011, Lake County Trust Company, Trustee. Victoria is the beneficiary of the Trust. The Beemsterboer Property shares a border with Heil’s Haven Condominiums. When the condominiums were developed, several agreements were executed between the Heil’s Haven Condominiums Homeowners Association and the previous owners of the Beemsterboer Property, granting various easements to each to use portions of the others’ property. The Beemsterboers attempted to develop their property in a manner that allegedly infringed on the easements originally granted to the Association. The Association filed suit against the Trust and the Beemsterboers seeking to enjoin the Beemsterboers from improving their property in a manner that infringed on the easements, and the trial court granted the requested relief.

The Beemsterboers appeal, arguing that the trial court erred in granting injunctive relief because (1) one of the agreements has terminated; (2) the improvements can be made in a manner that does not infringe upon the Association’s existing easements to use the Beemsterboer Property; and (3) the Association’s encroachment is greater than that permitted by agreement. We conclude that one agreement has terminated and that the improvements can be made in a manner that does not infringe upon the Association’s continuing easements. We further conclude that the trial court’s order deals effectively with the Association’s encroachment. Therefore, we affirm in part and reverse in part.

In Barbara (Rosario) Bessolo v. William I. Rosario , a 16-page opinion, Judge Vaidik writes:
Following dissolution of their marriage, Barbara (Rosario) Bessolo (“Mother”) and William Rosario (“Father”) were involved in disputes concerning their young daughter. In response to the many motions that followed, the trial court found that Mother failed to dismiss the protective order against Father as required by the dissolution decree, held her in contempt, and awarded compensatory damages and attorney’s fees to Father. While we conclude that these rulings were proper, we reach a contrary result regarding the ten-day suspended sentence imposed on Mother for future violations of any of the court’s orders. We affirm in part and reverse in part.
In Charles Westmoreland v. State of Indiana , an 8-page opinion, Judge Vaidik writes:
Charles Westmoreland was a passenger in a vehicle that police stopped for a routine traffic violation. After a police officer determined that there were outstanding warrants for the driver, the officer arrested the driver while another officer removed Westmoreland from the car, handcuffed him, and patted him down for officer safety, finding a baggie of marijuana in his front pocket. Westmoreland now appeals the trial court’s denial of his motion to suppress the marijuana, arguing that the pat down was illegal because the officers did not reasonably believe that he was armed and dangerous. In light of the United States Supreme Court’s opinion in Arizona v. Johnson, 555 U.S. 323 (2009), which considered the authority of police officers to pat down vehicle passengers during a routine traffic stop, we conclude that the trial court erred in denying Westmoreland’s motion to suppress the marijuana because the officers did not reasonably believe that he was armed and dangerous. * * *

We therefore conclude that the officers did not have reasonable suspicion that Westmoreland was armed and dangerous. Because Officer Forrest performed an illegal pat down on Westmoreland, the trial court erred in denying his motion to suppress the marijuana found as a result of that pat down. And without this marijuana, there is simply no evidence to support the possession of marijuana charge against Westmoreland. We therefore reverse the trial court and remand with instructions for the court to dismiss Westmoreland’s possession of marijuana charge.

NFP civil opinions today (3):

In The Law Office of Deborah Agard v. Unemployment Insurance Appeals of the Indiana Department of Workforce Development (NFP), an 11-page opinion, Judge Mathias writes:

The Law Office of Deborah Agard (“the Law Office”) appeals the decision of a Liability Administrative Law Judge for the Unemployment Insurance Appeals division of the Indiana Department of Workforce Development, in which the LALJ found that the Law Office owed unemployment insurance tax contributions for Carlotta Wilson, an individual the Law Office paid to perform cleaning services at its office and at Kids’ Voice, a not-for-profit child advocacy center where Deborah Agard, the sole proprietor of the Law Office, serves on the board of directors. The Law Office raises one issue, which we restate as whether the LALJ’s finding that Wilson was an employee of the Law Office for the purposes of the Indiana Unemployment Compensation Act was unreasonable. We affirm.
Sterling B. Nelson v. Michelle L. Nelson (NFP)

Michael M. and Lana S. Ashley, et al. v. Jeffrey and Holly Spaw, et al. (NFP)

NFP criminal opinions today (6):

Gerald Mayberry v. State of Indiana (NFP)

Jamie E. Green v. State of Indiana (NFP)

Robbie S. McCain-Ficklin v. State of Indiana (NFP)

Charles Frederick Miller v. State of Indiana (NFP)

John Brooke v. State of Indiana (NFP)

Manuel Martinez v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Indiana utilities ordered to alter tree trimming practices, but it is not over yet

"But it is not over" was the apt headline to this August 8, 2011 ILB entry...

A story last evening from WRTV 6 is headed: "Tree-Trimming Proposal Could Leave Homeowners On Limb: Universal Plan Has Loopholes, Officials Say."

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Indiana Law

Ind. Gov't. - "U.S. Has A Natural Gas Problem: Too Much Of It"

So John Ydstie of NPR's Morning Edition reported this morning in a 4 min, 23 sec story. A few quotes:

There's a boom in natural gas production in the United States, a boom so big the market is having trouble absorbing it all.

The unusually warm weather this winter is one reason for the excess, since it reduced the need for people to burn gas to heat their homes. A bigger reason, however, is the huge increase in gas production made possible by new methods of coaxing gas out of shale rock formations.

Peter Ricchiuti, a professor at Tulane University in New Orleans and an expert on oil and gas production, says the normal supply-and-demand laws of economics aren't working as they used to in the industry.

Here are some earlier ILB entries on the proposed Rockport coal-gasification project.

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Indiana Government

Law - "NWI farms face stricter federal rules that ban many tasks for minors"

Phil Wieland has the story today in the NWI Times. Some quotes:

The days of teens getting a summer job on a neighbor's farm could be coming to an end.

In September, the Labor Department announced it was updating the work rules for those younger than 18 getting jobs on farms. It was the first such update in 40 years, and it has created a corn crib full of consternation and criticism from farm owners across the country because it prohibits minors from doing many farm jobs.

The regulations, which are expected to be finalized this summer, bar minors from working with animals, handling pesticides, and working in timber operations, manure pits and storage bins. Those younger than 16 could not work in the cultivation, harvesting or curing of tobacco or operate almost all power-driven farm equipment.

Among the places considered too dangerous for minors are grain elevators, grain bins, silos, stockyards and livestock exchanges. They could be allowed to drive certain farm devices and tractors with training and if the equipment has proper rollover protection and seat belts.

After receiving more than 10,000 comments on the proposed changes, the Labor Department announced in February it would reinstate the parental exemption for youths working on their parents' farms. The department still is writing and reviewing that change. Meanwhile, farmers are concerned what it will mean for them and for the youths who got summer jobs to earn money for college and other activities.

"It's a big concern to us in the farm community," said LuAnn Troxel, of Hanna. "Although well intentioned, they don't realize the unintended consequences. No one wants to see a child get hurt. If I thought the rule would prevent accidents, I wouldn't feel so bad."

This also seems to put an end to the high-school "rite of passage" summer job in my day -- detasseling corn:
Teens couldn't even help with bringing in wagon loads of hay because they couldn't be more than six feet above the ground, she said.

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to General Law Related

Courts - "Texas judges' misdeeds often kept secret by oversight commission"

Eric Dexheimer has the very long story today in the Austin Texas American-Statesman. It begins:

In 2008, a Texas judge found an out-of-town attorney in contempt of court. But, the judge added, there was a way the lawyer could avoid jail: He could donate "large sums of money" to several charitable organizations, one of which the judge happened to have a close connection to.

Want to know more about the judge and his charity? You can't; it's confidential.

Nor can you find out any more details about the judge who, in 2003, "while traveling on a state highway at nighttime with his family, chased, stopped, and arrested another motorist based on his perception that the motorist had committed a traffic offense. ... During the incident, the judge displayed a handgun for which he did not have a license to possess," according to available public records.

Both judges had their cases heard by the state's Commission on Judicial Conduct, the agency charged with disciplining Texas' approximately 3,900 judges, from justices of the peace to state Supreme Court justices. Yet strict rules written into the state's constitution severely limit how much of the agency's proceedings and records are open to public scrutiny.

While some judges may receive a relatively harsh public sanction, with details of their cases made available for public consumption, most of the reprimands meted out by the commission in a given year, including those given to the judge with the charities and the judge with the illegal gun, are kept private, with only the rough outlines of the case made public. No identifying information about the judge or his or her jurisdiction is released, and the penalty has no real impact beyond a notation in the commission's records and the judge's conscience.

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Courts in general

Courts - Still more on "A Cook County judge has banned reporters from tweeting inside his courtroom"

A long AP story today from Michael Tarm, headed "Judges, journalists clash over courtroom tweets."

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Courts in general

Stage Collapse - More on: Indiana attorney blames Sugarland for stage collapse deaths

Updating yesterday evening's entry, Charles Wilson and Tom Coyne take a somewhat different focus in their AP coverage, here in the Huffington Post under the headline "Indiana State Fair Stage Collapse Lawsuits; Sugarland 's Tour Manager To Be Central Focus." The lengthy story begins:

MERRILLVILLE, Ind. — The tour manager who was widely credited with saving the lives of country duo Sugarland before a deadly stage collapse at last summer's Indiana State Fair has become a central focus of lawyers seeking millions in damages for the families of seven people who died and dozens who were injured.

Fair officials say they had a concert promoter ask the band twice to delay the Aug. 13 concert because of concerns about severe weather, but were rebuffed. Investigative reports unveiled last week said tour manager Hellen Rollens told a state fair representative, "It's only rain. We can play."

Posted by Marcia Oddi on Tuesday, April 17, 2012
Posted to Stage Collapse