Monday, April 30, 2012
Ind. Gov't. - "Duke Energy Reaches Settlement Agreement with Key Consumer Groups on Edwardsport Plant Costs" [Updated]
That is the heading to a Duke Energy news release issued this afternoon. It begins:
PLAINFIELD, Ind., April 30, 2012 /PRNewswire/ -- Duke Energy Indiana today announced a settlement agreement with some of the state's key consumer groups involved in regulatory proceedings dealing with the company's Edwardsport coal gasification power plant.John Russell reports in a preliminary Indianapolis Star story posted at 4:46 PM, headed "Duke Energy settles in Edwardsport power plant scandal, agrees to swallow $700M in cost overruns." [Updated on 5/1/12] Here is the updated IndyStar story, on today's front page.
The proposal, which was filed with state regulators, is subject to Indiana Utility Regulatory Commission (IURC) approval.
Participants in the settlement, which covers all phases of the Edwardsport subdocket proceedings, are the Indiana Office of Utility Consumer Counselor, the Duke Energy Indiana Industrial Group and Nucor Steel-Indiana.
The joint intervenor group, consisting of the Citizens Action Coalition, Sierra Club, Save the Valley and Valley Watch, is not part of the settlement.
Law - "Gibson, who is autistic, has worked full time as a file clerk for the firm since 2008."
Thanks to the ABA Journal Blog ("Autistic File Clerk Credits His Photographic Memory with Success at His Law Firm Job") for pointing to this story today in the Washington Post, reported by Vanessa Small.
Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)
For publication opinions today (5):
In Daniel P. Millikan v. Lori A. Eifrid , a 21-page opinion, Judge Baker begins:
In this case, the trial court properly determined that the plaintiff was the bona fide and innocent purchaser for value of a parcel of property when applying the doctrine of equitable subrogation. Thus, title to the property awarded to the plaintiff is superior to any right, title, or interest that might be claimed by the defendant or his successors in interest. However, because the trial court determined that the defendant had not committed fraud that might otherwise have entitled the plaintiff to recover her attorney fees, we reverse that portion of the judgment and vacate the award of attorney fees.Walter B. Duncan v. The Greater Brownsburg Chamber of Commerce, Inc.
In Jason Jeffries v. State of Indiana , a 14-page opinion, Judge Baker begins:
Today we decide whether the trial court should have permitted a defendant to withdraw his guilty plea when his trial counsel failed to discover that the State could not have charged him with being a habitual offender in only one of the two separate causes that were filed against him. Because the defendant could have been tried on one of the habitual offender counts potentially resulting in a longer sentence than he received under the plea agreement and both habitual counts were dismissed pursuant to the plea agreement, we hold that the trial court did not abuse its discretion in denying the defendant’s motion to withdraw the guilty plea.NFP civil opinions today (2):
NFP criminal opinions today (7):
InState of Indiana v. Blake Lodde (NFP), a 6-page opinion, Chief Judge Robb writes:
The State appeals the trial court order granting Blake Lodde’s motion to suppress evidence gathered during and after an investigatory stop of Lodde’s vehicle. The sole issue is whether the officer had reasonable suspicion to conduct an investigatory stop. Concluding that the trial court erred in applying the wrong standard in ruling on the motion to suppress, we reverse and remand. * * *Jasper A. Wisdom v. State of Indiana (NFP)
We conclude that the record indicates the trial court erroneously applied the probable cause standard in ruling on Lodde’s motion. Although the trial court verbally referred to reasonable suspicion once at the close of the suppression hearing, the trial court also verbally referred to probable cause, and in its order it stated that Deputy Lendermon did not have probable cause. The trial court’s analysis in its denial of the State’s motion to correct errors also relies on a case which concerned probable cause. Despite Lodde’s appellate contention, we do not believe this to be a scrivener’s error. Because the trial court applied the wrong standard, we reverse its order granting Lodde’s motion to suppress and remand with instructions for the trial court to apply the reasonable suspicion standard to the facts of this case.
Ind. Courts - New Chief Justice to be selected May 15?
The ILB has not seen this anywhere else. WCSI News/Talk (Columbus) is reporting:
Nearly two months after Randall Shepard‘s retirement, the Indiana Supreme Court will get its new chief justice May 15. The Judicial Nominating Commission will talk with the five justices, then go into executive session before emerging for a public vote.
Commission member Jim McDonald says there are no fixed criteria for the job, but the commission will be assessing the justices‘ experience, collegiality and work ethic. One candidate can be ruled out: Frank Sullivan is retiring from the court in August.
The other justices are Robert Rucker, Steven David, Mark Massa, and Brent Dickson, who as the longest-serving justice has been acting chief justice since Shepard stepped down. Massa replaced Shepard on the court in March.
The selection as chief justice is for a five-year term, but Shepard held the job for 25 years. When he was last up for reappointment, the other four justices all told the commission they wanted him to stay on, and the panel‘s vote was a formality.
Ind. Decisions - Transfer list for week ending April 27, 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 27, 2012. It is one page (and 13 cases) long.
Two transfers were granted last week:
- Elmer J. Bailey v. State of Indiana (NFP) - This Feb. 3., 20012 opinion reversed Bailey’s conviction for class D felony domestic battery because the spouse "did not suffer bodily injury as that term is defined by statute."
- John Haegert v. University of Evansville - this Sept. 19, 2011 opinion relates to harassment and intentional infliction of emotional district claims as a university.
Denied - Dickson, A.C.J., and Sullivan, Rucker, and David, JJ., concur. Massa, J., votes to grant the Petition to Transfer, concluding Appellant's invocation of his right to counsel was ambiguous and thus his convictions on all counts should be upheld.
Stage Collapse - "Stage inspections already changed"
Jay Hermacinski of WISHTV8 reported April 27th:
INDIANAPOLIS (WISH) - Construction crews are busy building a stage on Monument Circle for Saturday night’s free 500 Festival concert.
For the first time, the construction crews are under watchful eyes from both state and city code enforcement inspectors.
"When they come out here, they sign off on the fact that they didn't note any violations at the time of the inspection," said Code Enforcement spokesperson Kate Johnson.
In the past, city code inspectors weren't involved with this project because Monument Circle is state property. That has now changed, due to tighter inspection codes put in place after last August’s deadly stage roof collapse at the State Fair. * * *
The new law doesn't kick in until July 1. But inspectors aren't waiting. Daniels ordered the Indiana Department of Homeland Security to start working closely with the city and inspect temporary structures right away.
"Right now we are operating similarly to how we did during the Super Bowl-related events. We are out performing inspections on stages that are on state property, when previously we hadn't been doing those things,” said Johnson.
Law - "Mug Shot Mania: The Legal and Policy Issues Surrounding Private Websites’ Postings of Arrest Photos"
Long, interesting April 24th article from Justia by Prof. Anita Ramasastry of the University of Washington School of Law. The introduction:
Many people find themselves arrested and hauled into a police station to have their “mug shots” taken. In the past, these mug shots remained in police departments’ files. Industrious reporters might track down a particular mug shot to publish alongside a newspaper article or TV story, particularly if an alleged crime was serious or the alleged perpetrator was a celebrity. But that was the extent of the publicity.
Then, with the advent of the Internet, we began to see celebrity mug shots posted online—on sites like “the smoking gun.” Apparently, the public likes to see celebrities looking less than perfect—tired, disheveled, and down on their luck—and to find out the often embarrassing charges against them, such as driving under the influence (DUI), drug possession, or soliciting a prostitute.
But now, the mug shots of not just celebrities, but also ordinary people, can be found online, in “mug shot galleries.” The arrestees’ alleged crimes include misdemeanors such as shoplifting, as well as other, more serious offenses. The postings are the work of for-profit companies, which have made their mug-shot galleries easily searchable, retrievable, and downloadable. This new reality can create a host of headaches for the arrestee—and particularly for the person against whom charges are dropped, who is acquitted at trial, or who is otherwise exonerated.
In this article, I will examine this new commercial trend, and discuss its legal implications and some potential policy solutions. I’ll also discuss a new trend of police departments’ posting certain mug shots on Facebook—a practice that has garnered criticism.
Courts - "The reality at the SCOTUS is that those who know don't talk, and those who talk don't know. "
Good article today by Joan Biskupic of Reuters, headed "As US Supreme Court mulls healthcare, rumors fly."
Ind. Courts - February 2012 Indiana Bar exam results
Ind. Courts - "Uninsured patients' lawsuit carries high stakes for area hospitals" [Updated]
The first ILB entry on this case was on May 8, 2010, quoting a story in the Star from Daniel Lee, headed "Clarian Health sued over high charges: Patients claim bills for services insurance doesn't cover are unreasonable."
Here are a few quotes from Swiatek's lengthy story yesterday:
The case, set for argument May 10, involves a lawsuit against the state's largest hospital group, IU Health, by two of its uninsured patients.[Updated 5/2/12] This case deals with this claim: "IU Health overbilled them by charging much more than insured patients would pay for the same treatment." Another issue covered recently in the ILB is a new study where "Researchers found wide variations in charges even among appendectomy patients treated at the same hospital."
Their claim: IU Health overbilled them by charging much more than insured patients would pay for the same treatment.
Though the breach-of- contract claims in the case amount to just a few thousand dollars, the legal stakes are high.
A finding favoring the IU Health patients could fling open the door to multimillion-dollar class-action legal claims from uninsured patients against IU Health and other hospitals as well. Patients could sue over billings as far back as 10 years, says Indianapolis trial lawyer Scott Weathers.
Weathers, whose clients sued IU Health (formerly Clarian Health) in 2010, is blunt about his intentions. He wants to turn their lawsuit into a class action open to hundreds of uninsured patients who might have been overbilled by the health system over the past decade.
He also hopes to target other Indiana hospitals with similar lawsuits carrying damage claims in the millions of dollars.
"If we win, I'm afraid the other hospitals are going to hear from us. We have clients in the wings," he said, who are ready to sue. * * *
It's the first time the state Supreme Court will wrestle with the legalities of a hospital charging uninsured patients more than insured ones, according to attorneys involved.
The high court's consideration of the issue comes even after a new federal law requires hospitals to give discounts to uninsured patients similar to those given to insured ones.
That led IU Health to offer uninsured patients a 40 percent discount off its full-price "chargemaster" rates in January of last year, said Lauren Cislak, an IU Health spokeswoman.
IU Health's discount applies to uninsured patients regardless of income and is based on the best rates it charges its commercial insured customers or Medicare, she said.
Other Indiana hospital groups have put similar discounts for uninsured patients in place.
But the new federal guidelines don't take away patients' right to sue over past billing practices -- which means the IU Health lawsuit still is very much alive.
At the heart of the IU Health case are 120 years of state common law holding that, if a contract for a service doesn't specifically set a price or fee, the bill must be "reasonable." And one definition of reasonable is the price charged most other customers.
Not law - Complete MS Word on your iPad, including redlining
I've been trying this out for a few weeks and finally signed on yesterday. (I have no association with this company, so one may call this an unsolicited testimonial.)
Courts - "The vanishing oral argument?"
Squire Sanders has a blog following our neighboring 6th Circuit, called the Sixth Circuit Appellate Blog. This post April 25th, headed "The vanishing oral argument?" reports on the Circuit's evolution:
... from allowing argument to any party that requests it to being more selective about which cases receive argument. This has led to an noticeable decline in oral argument. Under the prior system, roughly two-thirds of the cases were slated for oral argument (many parties waive argument), but that number has now fallen to less than half. To be sure, this could be attributable to a number of factors, such as parties deciding not to devote resources to oral argument, but part of it certainly derives from more rigorous screening of cases by the Court.
Ind. Courts - "A group of Evansville churches' push to double the capacity of Vanderburgh County's drug treatment courts program"
Mark Wilson had the story yesterday in the Evansville Courier & Press. More from the long story:
Instead of one giant leap forward, Vanderburgh County Superior Court Judges Wayne Trockman and David Kiely said they would rather take a more measured approach.Many more details on the county's Treatment Courts in the lengthy story.
"We would rather do it in steps," Trockman said.
The key, they said, is finding funding for long-term hiring commitments for the extra staff. That hasn't been easy.
"We patch it together," Trockman said.
There are currently four court programs under the county's Treatment Courts umbrella: Drug Court, Forensic Diversion, Re-Entry Court and Veterans Treatment Court. The first three programs work with participants charged with various degrees of substance-abuse related crimes, while the fourth court addresses veterans with drug-related offenses. The programs are paid for by the county, two federal grants and the Indiana Department of Corrections.
Trockman said program expansion will require more time and participation from the judges and hiring additional help.
Ind. Gov't. - Two good stories today on state tax and finance
"John Gregg's gas tax plan has a history" is the headline to Lesley Stedman Weidenbener's smart analysis in today's Louisville Courier-Journal.
Equally worth reading is this editorial today in the Fort Wayne Journal Gazette, which begins: "One-sided tax equations: How can you go wrong with a proposal to cut taxes?"
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 4/30/12):
Thursday, May 3rd
- 10:30 AM - Timothy W. Plank v. Community Hospitals of Indiana, Inc. (49S04-1203-CT-135) - After a jury in this medical malpractice action awarded Plank $8.5 million in damages, the trial court granted Community’s motion to reduce the award to conform to the Medical Malpractice Act’s cap on damages and entered judgment in the reduced amount. On cross-appeals, the Court of Appeals affirmed in part, reversed in part, and remanded for an evidentiary hearing on Plank’s constitutional challenges to the statutory cap on damages. Plank v. Community Hospitals of Indiana, Inc., 956 N.E.2d 731 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted petitions to transfer the case and has assumed jurisdiction over the appeal. [ILB: Justice Massa's first appearance on bench.]
ILB: This was a 2-1, Oct. 26, 2011 COA opinion where the majority concludes: "We hold that Plank is entitled to an evidentiary hearing so that he can attempt to sustain his burden to prove that the statutory cap on medical malpractice awards under the Act is unconstitutional. Without a hearing, Plank has no means to satisfy his burden of proof. We need not address the merits of Plank’s constitutional challenge, which are not before us in this appeal. Finally, Community has not demonstrated that the trial court abused its discretion when it instructed the jury and, thus, Community is not entitled to a new trial."
And the dissent concludes: "In sum, because Plank could have challenged the constitutionality of the statutory damages cap either before or during trial, but he did not, I believe that he has waived his constitutional arguments. As a result, Plank should not be permitted to advance those arguments at a subsequent hearing."
For more, see this ILB entry from Oct 27. 2011.
Next week's oral arguments before the Supreme Court (week of 5/7/12):
Thursday, May 10th
- 9:00 AM - Indiana Department of State Revenue v. Virginia Garwood, et al. (82S10-1203-TA-171) - The Department of State Revenue issued jeopardy tax assessments to the Garwoods in connection with the Garwoods’ business breeding and selling dogs. The Tax Court denied the Department’s motion to dismiss the Garwoods’ original tax appeal. Indiana Dep’t of State Revenue v. Garwood, 939 N.E.2d 1150 (Ind. Tax Ct. 2010). Later, the Tax Court granted summary judgment to the Garwoods, holding the jeopardy assessments were void as a matter of law. Indiana Dep’t of State Revenue v. Garwood, 953 N.E.2d 682 (Ind. Tax Ct. 2011). The Supreme Court has granted a petition for review.
ILB: See this long list of earlier ILB entries, the most recent, from Aug. 25, 2011, headed "Court rules state overstepped by taking dogs to recoup taxes." Here is the ILB summary of the August 19, 2011 Tax Court opinion.
- 9:45 AM - Abby Allen, et al. v. Clarian Health Partners, Inc. (49S02-1203-CT-140) - Uninsured medical patients brought a putative class action for breach of contract against Clarian, alleging that the rates billed by Clarian to its uninsured patients are unreasonable and unenforceable. The trial court granted Clarian’s motion to dismiss for failure to state a claim. The Court of Appeals reversed and remanded, holding among other things that Indiana law implies a reasonable charge for services under these circumstances and that the reasonable value of the services rendered to the plaintiffs in this case requires determination by a fact-finder. Allen v. Clarian Health Partners, Inc., 955 N.E.2d 804 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: See this list of ILB entries, many headed "Clarian Health sued over high charges: Patients claim bills for services insurance doesn't cover are unreasonable." Here is the Oct. 12, 2011 COA opinion.
- 10:30 AM - Michael and Katherine Dodd v. American Family Mutual Insurance Co. (12S02-1203-CT-170) - After American Family denied the Dodds’ fire loss claim, the Dodds brought suit alleging, among other things, breach of contract. The trial court awarded summary judgment to American Family, holding among other things that no coverage was owed due to material misrepresentations in the insurance application. The Court of Appeals affirmed as to certain claims but reversed and remanded on the breach of contract claim, holding a material issue of fact exists whether American Family effectively voided the policy. Dodd v. American Family Mut. Ins. Co., 956 N.E.2d 769 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: Here is the Novemeber 3, 2011 COA opinion.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 4/30/12):
Monday, April 30th
- 1:00 PM - Dana L. Lewis, Jr., v. State of Indiana (40A01-1106-CR-276) - Appellant-Defendant Dana L. Lewis, Jr. appeals the decision of the Jennings Circuit Court denying his Motion to Suppress statements made by Lewis to a Jennings County Sheriff’s Sergeant after Lewis asked, “Can I have a lawyer?” during a police interview regarding an alleged sex crime. Appellant argues that the statements were obtained in violation of his Fifth Amendment right to counsel, which he claims he unequivocally and unambiguously invoked. The Scheduled Panel Members are: Chief Judge Robb, Judges Friedlander and Bradford. [Where: Shortridge High School, 3401 N. Meridian Street, Indianapolis, Indiana]
Tuesday, May 1st
- 11:00 AM - Ian McCullough v. State of Indiana (49A04-1105-CR-225) - Ian McCullough appeals the post-conviction court’s denial of his petition for post-conviction relief. McCullough argues that he was denied the right to effective assistance of trial counsel. The Scheduled Panel Members are: Judges May, Crone and Brown. [Where: Court of Appeals Courtroom (Webcast)]
Friday, May 4th
- 10:30 AM - James Ripps vs. State of Indiana (15A01-1109-CR-436) - James Ripps was convicted of child molesting and sentenced to eight years with six years and 300 days of his sentence suspended to probation. Among the conditions of his probation were that he not reside within one thousand feet of a school property and that he inform all persons living at his place of residence of his conviction. On May 27, 2011, the State filed a notice of probation violation alleging that Ripps had violated both of these conditions of his probation. Following a hearing, the trial court revoked Ripps’s probation and ordered that he serve the remainder of his suspended sentence. Ripps appeals the sentence, arguing that revoking his entire sentence was an abuse of discretion. The Scheduled Panel Members are: Chief Judge Robb, Judge Baker and Senior Judge Shepard. [Where: Franklin Community High School, Performing Arts Center, 2600 Cumberland Drive, Franklin, Indiana]
Next week's oral arguments before the Court of Appeals (week of 5/7/12):
Monday, May 7th
- 10:00 AM - In Re: Prosecutor's Subpoenas Regarding S.H. and S.C. (73A01-1109-CR-468) - S.C. gave birth at her home. Shortly after birth, the baby showed signs of injury. The State asked the court to grant use immunity so the parents could be compelled to submit to interrogation about the incident. The trial court granted the State’s petition, and the parents appeal on the ground a prosecutor should not be able to circumvent their constitutional right to remain silent during a pre-charge investigation by granting use immunity. The Scheduled Panel Members are: Judges Baker, May and Brown. [Where: Loogootee High School, 201 Brooks Avenue, Loogootee, Indiana]
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.