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Monday, April 23, 2012

Ind. Law - More on "Marion County repairs sex offender registry"

Updating this ILB entry from Sunday, quoting Alex Campbell's front-page story that began:

A week after The Indianapolis Star exposed numerous errors on Marion County's portion of the state sex offender registry, the sheriff's office has made good on its pledge to do something:

It has wiped away many of the mistakes. ***

Marion County Sheriff John Layton completely removed [more than 523 offenders] from the registry in one fell swoop last week. In an instant he fixed dozens of the accuracy problems exposed by The Star.

Today Campbell posts in the Star blog, Star Watch, a copy of the graceful letter that "Marion County Sheriff John Layton wrote to The Star in the wake of April 15′s story detailing the errors." Definitely worth a read.

Posted by Marcia Oddi on Monday, April 23, 2012
Posted to Indiana Law

Courts - "Which Federal Appeals Court Cites Wikipedia Most Often?"

Joe Palazzolo of the WSJ Law Blog has a terrific post this evening. Of course, the 7th Circuit was by far the winner.

Posted by Marcia Oddi on Monday, April 23, 2012
Posted to Courts in general

Stage Collapse - "State Fair report will lead to best practices in industry"

Following on the ILB entry this morning, Sandra Chapman reports this evening at WTHR 13:

Governor Mitch Daniels is working with entertainment representatives from other states and other countries who want to make temporary outdoor venues safer.

The cries of pain and the calls for help touched Hoosiers across the state last August and now, the entire entertainment industry. * * *

For the first time, producers, promoters and security directors worldwide are talking about fixing the gaps in the outdoor entertainment industry. They've come to Indianapolis where the worst tragedy unfolded, leaving seven dead and more than 40 seriously injured.

Now, there is a push for unified building standards and inspections, starting with framework from the so called "Purple Guide." The "Purple Guide" is an event safety guide of best practices, now used in the United Kingdom. [ILB - see below]

"Means we can go back again and analyze where the failures were. I can't stand here in front of you and say the U.K. has got this absolutely right, there's always stuff to learn," said Roberts, who helped to create the Event Safety Guide in the U.K. * * *

The Safety Alliance will now ask the industry here in the U.S. to adopt the "Purple Guide," which will include the findings cited in the Thornton Tomasetti and Witt reports.

The Indiana Department of Homeland Security says it has already obtained a lists of Indiana festivals that include outdoor temporary stages. Anything over 30 inches (2.5 feet) will have to be inspected. That work begins when the new rules go into place in just over a week.

The WTHR story includes a link to the "Purple Guide," maintained by its British publisher. Here is the link, but be aware that it directly downloads a large, 190-page PDF document.

Here is more from an AP story tonight by Rick Callahan. Some quotes:

Jim Digby, the executive director and co-founder of the Event Safety Alliance, said August’s tragedy reflects a global problem. He noted that three other fatal accidents marred outdoor events last summer, including the deaths of five people in Belgium who were killed when tents and scaffolding toppled during a music festival just days after the Indiana incident.

“Make no mistake, this is the single most important issue facing our industry,” said Digby, the production manager for rock band Linkin Park.

Digby said the alliance has been granted use of an event safety guide that’s been in place in the United Kingdom for about 20 years that’s commonly called “The Purple Guide,” and members are working to adopt and refine that document’s accumulated knowledge into a U.S. version to help guide the wide-ranging American entertainment industry to create “a multi-lateral culture of safety first.”

“It’s very clear that a single-source document would allow for a common language between all responsible entities,” he said.

The first version of the U.K. safety planning guide was drafted following a 1989 double fatality at a concert, said Tim Roberts, who helped create the best practice rules. Roberts, the director and safety adviser for Event Safety Shop Ltd., said the guide has been updated twice and continues to evolve.

“I can’t say that the U.K. has got this absolutely right — there’s always stuff to learn. And I think the pain that was felt here in Indianapolis was shared around the world. The international production community is a very small community,” he said.

Two investigative reports released this month on the Indiana tragedy found that the stage rigging that collapsed in high winds did not meet industry safety standards and that fair officials lacked a fully developed emergency plan.

Daniels said the Indiana Fire Prevention and Building Safety Commission will meet May 2 to discuss proposed emergency rules for outdoor stage rigging and related structures — rules required under legislation he signed into law last month.

Homeland Security Executive Director Joe Wainscott said it’s unclear whether the commission will vote to approve those rules or if the panel’s members might seek changes and approve the rules at their next meeting. But, he said, he expects the board will move quickly given that fair and festival season has arrived. * * *

Daniels said state fire and building inspection officials aren’t waiting for the new rules and are actively canvassing venues around the state to assess stage rigging setups. Local emergency officials have also been advised to conduct their own assessments.

ILB: Here is the agenda of the May 2nd reading of the Indiana Fire Prevention and Building Safety Commission. I don't see an item listed re "proposed emergency rules for outdoor stage rigging and related structures," much less a draft of the proposal.

Posted by Marcia Oddi on Monday, April 23, 2012
Posted to Stage Collapse

Ind. Courts - "Bartholomew Co. Prosecutor Bill Nash is campaigning against Superior Court 1 Judge Chris Monroe and supporting Monroe’s opponent in the Republican primary"

That is the lede to a $$ story by Chris Schilling in the Columbus Republic. More:

Nash, a Republican, has mailed personal letters to people he views as his supporters, attacking Monroe’s temperament, the efficiency with which he runs the court and his sentencing record in criminal cases. * * *

In a copy of a letter obtained by the newspaper, Nash wrote that he felt he had no other “realistic options” left for dealing with Monroe than mailing what he acknowledges is a “negative political campaign letter.” He noted that trial court judges are almost never removed from the bench for judicial misconduct unless they commit a crime.

Posted by Marcia Oddi on Monday, April 23, 2012
Posted to Indiana Courts

Ind. Courts - "Probation revoked for former Gibson County, Ind., attorney William Wallace"

Mark Wilson of the Evansville Courier & Press reports today on former Gibson County attorney William Wallace. Here are some earlier ILB entries. From today's story:

Probation has been revoked for a Gibson County attorney sentenced on child pornography and obstructing justice charges last fall.

William R. Wallace III was taken into custody Monday after appearing in Gibson County Superior Court. Judge Earl Penrod sentenced him to 15 months in the Indiana Department of Correction after he pleaded guilty to violating probation conditions and an additional charge of voyeurism, said Special Prosecutor Jonathan Parkhurst.

Sentencing on the voyeurism charge had been put on hold pending a possible appeal to the Indiana Supreme Court asking it to intervene and clarify the law on which the charge was based. However, Scott Danks, who represents Wallace, said Wallace told him not to pursue the appeal.

According to Gibson County court records, Wallace was charged with accessing the Internet for non-work purposes without court permission and not reporting a change of employment to the sex offender registry.

Posted by Marcia Oddi on Monday, April 23, 2012
Posted to Indiana Courts

Stage Collapse - "Trying to set a safer stage: Fair and festival organizers await new rules prompted by State Fair tragedy"

A long, very informative story today from Maureen Hayden, CNHI, in the New Albany News & Tribune. Here are some quotes:

INDIANAPOLIS — State officials charged with making outdoor stage concerts safer for patrons are engaged in a balancing act: They’re trying to write rules to prevent another tragedy like the one at last year’s State Fair without over-regulating small town festivals and county fairs.

The legal staff at the Indiana Department of Homeland Security is drafting new emergency rules that would cover the kind of temporary stage rigging that collapsed at the State Fair last August, killing seven people attending a Sugarland concert.

The new emergency rules, triggered by legislation carried by state Sen. Tim Lanane, a Democrat from Anderson, won't just cover the State Fair grounds; they’ll cover other outdoor venues that use similar equipment, including some county fairs and festivals.

Exactly what those rules will look like, and how expensive they’ll be to follow, is still unknown. They’ll require inspections of the kind of equipment rigging structure that collapsed at the State Fair, and may require event organizers to pay for an engineer-designed and approved plan for those structures.

Homeland Security officials hope to have a draft of the emergency rules by early May so fair and festival organizers around the state will know what they’re facing when those rules go into effect July 1. * * *

The legislation authored by Lanane set up a summer study committee to come up with permanent rules for regulating the kind of stage rigging that collapsed last August at the State Fair after high wind gusts blew through the fairgrounds.

The legislation also set up a process for emergency rule-making, giving the Fire and Building Safety Commission authority to pass new regulations that can be put into place temporarily. The commission will hold public hearings on the emergency rules. * * *

Lanane acknowledged the emergency rules may appear to some to be rushed into place, but he said the process allows them to be reviewed and modified if needed. “The reality is there wasn’t an adequate inspection process in place before,” Lanane said. “We don’t want to risk a repeat of what happened last year at the State Fair.”

ILB: The new law discussed in the story is SEA 273. The emergency rule provision is found at p. 5 of the PDF version of the new law.

Posted by Marcia Oddi on Monday, April 23, 2012
Posted to Stage Collapse

Ind. Decisions - Transfer list for week ending April 20, 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 20, 2012. It is two pages (and 21 cases) long.

No transfers were granted last week.

The petition in Joshua Baker v. Robert Brown was dismissed, after receipt of "APPELLEE'S MOTION TO DISMISS."

Posted by Marcia Oddi on Monday, April 23, 2012
Posted to Indiana Transfer Lists

Courts - "U.S. Supreme Court immigration case weighs states' powers"

James Vicini reported Sunday for Reuters that "A clash over immigration law will go before the U.S. Supreme Court this week." A few quotes:

At issue in the case is whether federal immigration law pre-empted and thus barred the Arizona law's four key provisions.

The Arizona law requires police to check the immigration status of anyone detained and suspected of being in the country illegally. Other parts of the law require immigrants to carry their papers at all times; ban illegal immigrants from soliciting for work in public places; and allow police to arrest immigrants without a warrant if an officer believes they have committed a crime that would make them deportable.

A federal judge and a U.S. appeals court earlier ruled for the Obama administration and blocked all four parts of the Arizona law from taking effect.

[Paul] Clement will argue that the Arizona law was designed to cooperate with federal immigration efforts and that it did not conflict with federal policy or law.

"This is another federalism case. This is not all about immigration. It's really about the relationship between the federal government and the state government. It's the norm that you have state officials enforcing federal law," he said in an interview with Reuters.

Clement said the burden was on the government to show why immigration law specifically prevented states from the usual participation in enforcement of federal policy. * * *

Five other states - Alabama, Georgia, Indiana, South Carolina and Utah - have followed Arizona's lead and adopted similar laws, parts of which could be affected by the Supreme Court's ruling. In some of those states, legal immigrants have faced run-ins with local law enforcement.

And from the April 21st LA Times, this story by David G. Savage, headed "Showdown on Arizona immigration law goes to Supreme Court." The story begins:
The Supreme Court and the Obama administration are set for another politically charged clash Wednesday as the justices take up Arizona's tough crackdown on illegal immigrants.

It will be a rematch of the attorneys who argued the healthcare case a month ago, and another chapter in the partisan philosophical struggle over states' rights and the role of the federal government.

Finally, for the real nuts and bolts, see this long "Argument preview: Who controls immigrants’ lives?" from Lyle Denniston at SCOTUSblog.

Posted by Marcia Oddi on Monday, April 23, 2012
Posted to Courts in general

Law - The death penalty in America

The blog be Specific links to two great death penalty resources today.

Posted by Marcia Oddi on Monday, April 23, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Omni Insurance Group v. Lake Poage, Tonya Poage, Cody Bauer, Jill Bauer, Gary Bauer, and Allstate Insurance Company, a 12-page opinion, Judge May writes:

Omni Insurance Group appeals a summary judgment for Allstate Insurance Co., Lake and Tonya Poage, and Cody, Jill, and Gary Bauer (collectively, “the Poages”), and the denial of its own motion. As there is a genuine issue of material fact as to whether a driver involved in a collision was a resident of the Omni policyholder’s residence, summary judgment for the Poages was improper. * * *

Our application of the Imel factors leads us to conclude there is a genuine issue of fact as to whether Cody was a resident of Treva’s home, so there is a genuine issue of material fact regarding whether he should be excluded from coverage under Treva’s Omni policy. The Poages therefore should not have been granted, but Omni was properly denied, summary judgment. We accordingly reverse and remand for trial.

In Nathan Abernathy v. Larry Bertram and Keith Broyles, a 7-page opinion, Judge May writes:
Nathan Abernathy appeals some of the trial court’s findings in his action against Keith Broyles and Larry Bertram for breach of contract, quantum meruit, unjust enrichment, and conversion. * * *

The trial court’s findings regarding the value of Abernathy’s crop insurance policy were supported by evidence, and the trial court did not err when it did not include the value of the crop insurance policy in the amount of damages it ordered Broyles to pay. The trial court did not err when it denied Abernathy’s conversion claim because Abernathy did not prove by a preponderance of the evidence Broyles and Bertram intended to exercise unauthorized control over Abernathy’s property. Accordingly, we affirm the decision of the trial court.

In Richard Leggs v. State of Indiana , a 13-page opinion, Judge May concludes:
Leggs waived his argument regarding the deficiencies in the charging information for Class C felony intimidation because he did not file a motion to dismiss the charges at the trial court level. Waiver notwithstanding, Leggs did not demonstrate the deficiencies in his charging information rose to the level of fundamental error. There was sufficient evidence Leggs committed Class C felony intimidation, and Leggs was not subjected to double jeopardy when his convictions for several crimes were enhanced by his repeated use of a knife.

However, Leggs’ two convictions of Class B felony criminal confinement violate the continuing crime doctrine. Accordingly, we reverse one of his criminal confinement convictions and remand for resentencing.

NFP civil opinions today (5):

Term. of Parent-Child Rel. of K.L.; P.L. (Father) v. Indiana Dept. of Child Services (NFP)

In Re: The Marriage of Brenda S. Sanders and Paul R. Sanders, Paul R. Sanders v. Brenda S. Sanders (NFP)

In Re: The Marriage of Noelle Christine Green and Prentiss Lamont Green; Noelle Christine Green v. Prentiss Lamont Green (NFP)

LBJA Investments, LLC v. Brian Kamuf and William K. Saalwaechter (NFP)

In the Matter of the Term. of the Parent-Child Rel. of A.K., F.C. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (5):

Michael Rimschneider v. State of Indiana (NFP)

Rodney D. Bledsoe v. State of Indiana (NFP)

John A. Hawkins v. State of Indiana (NFP)

Jamal Rasheed Southern v. State of Indiana (NFP)

Alan Dwayne Gray v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 23, 2012
Posted to Ind. App.Ct. Decisions

Law - An update on ALEC ...

The ILB has had a number of entries over the past year on ALEC, the American Legislative Exchange Council.

On July 13, 2011, Common Cause announced (per July 15, 2011 ILB entry):

Today’s release of more than 800 “model” bills and resolutions drafted and promoted by the American Legislative Exchange Council (ALEC) opens a window to the workings of a powerful and secretive corporate front group that has enlisted thousands of state lawmakers to pass legislation on its behalf, often in conflict with the public good, Common Cause said today.
On April 21, 2012 the NY Times published a very long story by Mark McIntire headed "Conservative Nonprofit Acts as a Stealth Business Lobbyist." Some quotes:
Despite its generally low profile, ALEC has drawn scrutiny recently for promoting gun rights policies like the Stand Your Ground law at the center of the Trayvon Martin shooting case in Florida, as well as bills to weaken labor unions and tighten voter identification rules. Amid the controversies, several companies, including Coca-Cola, Intuit and Kraft Foods, have left the group.

Most of the attention has focused on ALEC’s role in creating model bills, drafted by lobbyists and lawmakers, that broadly advance a pro-business, socially conservative agenda. But a review of internal ALEC documents shows that this is only one facet of a sophisticated operation for shaping public policy at a state-by-state level. The records offer a glimpse of how special interests effectively turn ALEC’s lawmaker members into stealth lobbyists, providing them with talking points, signaling how they should vote and collaborating on bills affecting hundreds of issues like school vouchers and tobacco taxes.

The documents — hundreds of pages of minutes of private meetings, member e-mail alerts and correspondence — were obtained by the watchdog group Common Cause and shared with The New York Times. Common Cause, which said it got some of the documents from a whistle-blower and others from public record requests in state legislatures, is using the files to support an Internal Revenue Service complaint asserting that ALEC has abused its tax-exempt status, something ALEC denies. [ILB emphasis]

“We know its mission is to bring together corporations and state legislators to draft profit-driven, anti-public-interest legislation, and then help those elected officials pass the bills in statehouses from coast to coast,” said the president of Common Cause, Bob Edgar. “If that’s not lobbying, what is?”

ALEC argues that it provides a forum for lawmakers to network and to hear from constituencies that share an interest in promoting free-market, limited-government policies. Lobbying laws differ by state, and ALEC maintains that if any of its members’ interactions with one another happen to qualify as lobbying in a particular state, that does not mean ALEC, as an organization, lobbies.

"Charity Status Of Conservative Group Challenged" is the title of an NPR Morning Edition audio story today from Peter Overly. The teaser:
The conservative group that has seen some corporate donors flee because of its involvement in pushing for voter ID and stand-your-ground gun laws, has new troubles. Common Cause has filed a complaint with the IRS that the American Legislative Exchange Council, known as ALEC, violated the limits of its charity tax status.
The "ALEC Exposed" homepage has a wealth of information. The lower right column has a section called "State Reports." A number of state reports are listed (but not Indiana). The reports on the listed states include comparison lists of each state's recent bills, and similar ALEC bills. If you are familiar with recent Indiana legislation, you will find a lot of similarities.

The feature article this week in Indiana Legislative Insight quotes Indiana Rep. David Frizzell (R), who is ALEC's 2012 national chair:

Rep. Frizzell tells ALEC members that the "coordinated, left-wing attack campaign" against ALEC "is not about one piece of legislation. It's an attempt to silence our organization and it has been going on for more than a year." He believes that "It is happening because we are for free market healthcare, support tax fairness and advocate for things like deregulation, tort reform and more transparent government." Rep. Frizzell offers a sample letter to the editor for use by ALEC members to help "defend against their hollow, opportunistic attacks," as well as a letter to constituents to help educate them "about ALEC and the motives of our critics."

Posted by Marcia Oddi on Monday, April 23, 2012
Posted to General Law Related

Ind. Gov't. - "Indiana's local option income tax system is complex and difficult to administer"

So writes John Ketzenberger , president of the Indiana Fiscal Policy Institute, today in an opinion piece in the Indianapolis Star. The article concludes:

[I]t's not too soon to declare the system's complexity a real concern.

Many counties have adopted more than on local option income tax and they are earmarked for different purposes -- sometimes property tax relief, economic development, public safety or general operations. The system of collecting and then redistributing these taxes requires many estimates plugged into formulas. As we saw with the recent problem [the state DOR error that shorted local governments $206 million], a single mistake in a formula can result in massive distortions to the system.

Reducing this complexity is difficult, but a simpler system has two distinct advantages. Obviously, it will be easier to administer. More importantly, though, the public will be able to grasp how much it is paying in taxes and what that money is purchasing.

The independent audit is an important part of restoring the public's faith in the state's ability to account for tax revenue. It's also important, though, that the state makes taxation transparent. The recent snafu makes the local option income tax systems ripe for reform with an eye toward transparency.

Posted by Marcia Oddi on Monday, April 23, 2012
Posted to Indiana Government

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 22, 2012:

From Saturday, April 21st, 2012:

Posted by Marcia Oddi on Monday, April 23, 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 4/23/12):

Next week's oral arguments before the Supreme Court (week of 4/30/12):

Thursday, May 3rd

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 4/23/12):

Monday, April 23rd

Wednesday, April 25th

Thursday, April 26th

Next week's oral arguments before the Court of Appeals (week of 4/30/12):

Monday, April 30th

Tuesday, May 1st

Friday, May 4th

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, April 23, 2012
Posted to Upcoming Oral Arguments