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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.

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.

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.

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to Indiana Government

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.

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

D.A. v. State of Indiana

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.

Dontevius Hutcherson v. State of Indiana

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):

Nancy A. Regula, as Administrator of the Estate of Daniel G. Young, Deceased v. HPG Corp., doing business as Cohen Brothers Metals Co. and Integrity Metals (NFP)

C.F. v. M.R. (NFP)

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. * * *

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.

Jasper A. Wisdom v. State of Indiana (NFP)

Louis Amalfitano v. State of Indiana (NFP)

Brett A. Head-Mattingly v. State of Indiana (NFP)

Michael E. Kirk v. State of Indiana (NFP)

J.M. v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to Ind. App.Ct. Decisions

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.

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to Indiana Courts

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:

Transfer was denied in Nathan Anderson v. State of Indiana. The vote:
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.

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to Indiana Transfer Lists

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.

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to Stage Collapse

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.

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to General Law Related

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."

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to Courts in general

Ind. Courts - February 2012 Indiana Bar exam results

Available here.

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to Indiana Courts

Ind. Courts - "Uninsured patients' lawsuit carries high stakes for area hospitals" [Updated]

Jeff Swiatek of the Indianapolis Star had a long Sunday story about a case set for oral argument on May 10th before the Supreme Court, Abby Allen, et al. v. Clarian Health Partners, Inc.

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."

The oral argument before the COA, held Aug. 11, 2011, may be viewed here. The Oct. 3, 2011 COA opinion is discussed here (Oct. 13, 2011).

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.

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.

[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."

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to Indiana Decisions

Not law - Complete MS Word on your iPad, including redlining

Not law, but perhaps useful to some, including lawyers and legislators using iPads, this Feb. 22nd article in the NY Times by David Pogue about iPad service called OnLive Desktop Plus.

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.)

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to General News

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.

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to Courts in general

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.

"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.

Many more details on the county's Treatment Courts in the lengthy story.

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to Indiana Courts

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?"

Posted by Marcia Oddi on Monday, April 30, 2012
Posted to Indiana Government

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

Next week's oral arguments before the Supreme Court (week of 5/7/12):

Thursday, May 10th

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

Tuesday, May 1st

Friday, May 4th

Next week's oral arguments before the Court of Appeals (week of 5/7/12):

Monday, May 7th

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 30, 2012
Posted to Upcoming Oral Arguments