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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

Friday, April 27, 2012

Environment - "Unwanted, invasive sea lampreys from the Great Lakes ... are protected in England."

"Great Lakes lamprey will be baked into a dish fit for a queen" is the headline to this story by Tina Lam in the Detroit Free Press. The long story, complete with a don't miss photo and even recipes, begins:

Sea lamprey may be one of the most hated species in the Great Lakes, but it's a key ingredient in a traditional English pie that will be given to Britain's Queen Elizabeth II for her Diamond Jubilee in June.

But because the eel-like creatures are now a protected species in England, the City of Gloucester, which has given the pie as a gift to the monarch since the Middle Ages, made a request for the lamprey to the Great Lakes Fishery Commission, which was only too happy to supply them. Unfortunately, the English need only a few to make the pie.

Posted by Marcia Oddi on Friday, April 27, 2012
Posted to Environment

Ind. Courts - More on: Long-time Indiana Super Lawyer allegedly misappropriated more than $2.5 million in client funds for his own use

Here is the criminal complaint in the case of U.S. v. Conour. It begins:

AFFIDAVIT
I, Douglas E. Kasper, being duly sworn on oath, state as follows: 1. I am a Special Agent with the Federal Bureau of Investigation, and have been so employed for four years. I am currently assigned to the Indianapolis Division of the FBI.

2. This affidavit is made in support of the issuance of a criminal complaint and arrest warrant for William F. Conour, date of birth 6/21/1947. Based on the information submitted in this affidavit, I believe there is probable cause to believe that Conour has committed the crime of wire fraud, in violation of 18 U.s.C. § 1343. This affidavit is based on personal knowledge and reports made to me by and conversations with my FBI agents and employees.

3. According to the "Super Lawyers" internet website (www.superlawyers.com). Conour is an Indiana lawyer who "focuses on serious injuries and death caused by construction site accidents, auto/ trucking collisions, recreational and water sports, premises liability and any accident resulting in traumatic brain injury."

Posted by Marcia Oddi on Friday, April 27, 2012
Posted to Indiana Courts

Ind. Courts - Long-time Indiana Super Lawyer allegedly misappropriated more than $2.5 million in client funds for his own use

WRTV 6 has a brief noon story here. They say:

William Conour, 64, turned himself in and made an initial appearance in Indianapolis on Friday morning.

Prosecutors said Conour focused on construction liability cases involving serious injury and death.

"The complaint alleges that Conour engaged in a scheme to defraud his clients from December 2000 to March 2012, using newly obtained settlement funds to pay old settlements and debts," the Department of Justice said in a news release.

The ILB will attempt to obtain the news release and complaint.

Meanwhile, however, you may read this 2009 feature story on Mr. Conour in Super Lawyers. Written by Nancy Henderson, it is titled "Welcome Back, Conour: William Conour loves to teach, whether he's in the courtroom or out."

See also the Super Lawyers biographical page, noting selection to Super Lawyers for the years 2004 though 2012.

Posted by Marcia Oddi on Friday, April 27, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In In the Matter of V.C., Child Alleged to be in Need of Services v. Indiana Dept. of Child Services, a 10-page opinion, Judge Bradford writes:

Appellant-Respondent V.S. (“Father”) appeals the juvenile court’s determination that V.C. is a Child in Need of Services (“CHINS”). On appeal, Father contends that the juvenile court erroneously denied his procedural due process rights by denying his requests to issue a subpoena to a potential witness and for a continuance of the fact-finding hearing. Father also contends that a CHINS determination was unnecessary because a suitable relative placement existed at the time V.C. was removed from Mother’s care.1 We affirm.
NFP civil opinions today (1):

James J. Hambrock, Individually and as Co-Personal Representative of the Estate of Bob Cromer v. Star Wealth Management, as Co-Personal Representative of the Estate of Bob Cromer (NFP)

NFP criminal opinions today (2):

Derek Lee Morris v. State of Indiana (NFP)

Lisa J. Kane v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 27, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - Two recent stories about Indiana's new "Right to Resist" law

From Governing, a post by Caroline Cournoyer headed "Residents Given Right to Resist Police Under New Indiana Law."

From WSBT South Bend, this story reported by Kelli Stopczynski.

Posted by Marcia Oddi on Friday, April 27, 2012
Posted to Indiana Law

Stage Collapse - "Small fairs dread revised state rules" [Updated]

Updating ILB entries from April 23rd and April 24th, Rick Callahan of the AP reports today in a long story that begins:

INDIANAPOLIS – Organizers of some of Indiana’s county fairs and small festivals are anxiously awaiting new rules governing the type of rigging involved in last summer’s deadly State Fair stage collapse.

Details of the proposed temporary rules, which a state commission may vote on next week, have not been released, and that’s stirring up concern among festival organizers who fear they could face new costs to comply with the regulations, said Gale Gerber, vice president of the Indiana State Festivals Association. He said many of the 450 festivals and fairs held across Indiana each year operate on shoestring budgets and cannot afford new costs.

“A lot of these small festivals have budgets under $2,000 or $3,000 to run their festivals. If these rules bring new expenses, there’s no way they can handle that,” Gerber said.

The Indiana Fire Prevention and Building Safety Commission will meet Wednesday to consider the proposed rules.

The ILB contacted the FPBS Commission staff to see whether the draft rules would be available for review in advance of Wednesday's meeting. The answer is no, the draft rules that are being reviewed by Commission members are not going to be available to the public before the meeting:
As soon as the Commission does approve rules, they will be available on multiple websites, including the Commission’s website.
[More] It seems the Louisville Courier Journal has a longer version of the AP story than the FWJG. and includes this:
“Our job is to make sure the public is safe, not that the organizers are happy,” [David Hannum, the safety commission’s chairman] said.

If the panel’s members don’t want significant changes to the proposed rules at Wednesday’s meeting, he said they’ll likely go ahead and vote on approval. If that happens, the rules will be posted online the same day, although they won’t take effect until July 1.

The temporary rules are intended to serve as a placeholder until permanent rules are in place. A summer legislative study committee will draft recommendations for permanent rules that the next General Assembly will consider.

[Updated at 11 AM] The item, "Discussion and possible adoption of outdoor stage equipment rules," is now listed as #2 on the Commission's amended May 2nd agenda.

Posted by Marcia Oddi on Friday, April 27, 2012
Posted to Stage Collapse

Ind. Courts - More on "Teacher Fired After Receiving Fertility Treatments"

Updating this ILB entry from April 25th, the Fort Wayne Journal Gazette, in its "First Take" column today, reports:

The Hoagland woman whose lawsuit against the local Catholic Diocese is making national news was on “The Today Show” this morning, and Today correspondent Katy Tur appeared from Fort Wayne with some local scenes in the background.

Emily Herx seemed poised and somewhat demure as she discussed her love of teaching and surprise over being fired. Herx sometimes deferred to her attorney, Kathleen Delaney, who appeared with her along with Brian Herx, Emily’s husband.

Tur stood in front of the Federal Building on Harrison Street, and she also showed footage of Herx’ former school, St. Vincent de Paul.

Herx is a sympathetic figure in this case and certainly does not appear to be someone who would commit “an intrinsic evil,” as Bishop Kevin Rhoades has described in vitro fertilization.

Delaney’s comments suggest the legal case may well be complex. The Supreme Court early this year ruled against a Lutheran school teacher who claimed she was the victim of workplace discrimination, giving the religious school a “ministerial exception” to discrimination laws. But, as Delaney noted, the teacher was ordained as a minister and taught religious classes and performed “important religious functions.” Herx, on the other hand, taught English.

Here is the 6:43 minute segment from yesterday's Today Show, titled "Catholic school teacher says she was fired over fertility treatments." The actual interview begins about 2:56 minutes in.

Posted by Marcia Oddi on Friday, April 27, 2012
Posted to Indiana Courts

Law - "Are patent agents entitled to the protection of the attorney-client privilege?

This is interesting, a post this morning from CircuitSplits begins:

Today’s post features a split over the applicability of the attorney-client privilege to patent agents. While patent agents do not have to slog through three years of law school to obtain their license, they share many of the same professional responsibilities as patent attorneys. For example, patent agents, like their counterparts in the legal profession, are permitted to represent clients before the U.S. Patent and Trade Office.

As a federal magistrate in California recently pointed out, the similarity between patent agents and patent attorneys has lead a number of courts to extend the attorney-client privilege to communications with patent agents. See Buyer's Direct, Inc. v. Belk, Inc., SACV 12-00370-DOC (MLGx) (C.D. Cal. Apr. 24, 2012).

Posted by Marcia Oddi on Friday, April 27, 2012
Posted to General Law Related

Thursday, April 26, 2012

Ind. Decisions - Supreme Court suspends Charlie White

In the Matter of Charles P. White, filed April 25, is a one page "order of interim suspension upon notice of guilty finding." A quote:

The Court, being duly advised and upon careful consideration of all materials submitted, now finds that Respondent has been found guilty of the following offenses under Indiana law: Submission of a False, Fictitious, or Fraudulent Registration Application, a class D felony; two counts of Perjury, a class D felony; Voting Outside a Precinct of Residence, a class D felony; Procuring, Casting, or Tabulating a False, Fictitious, or Fraudulent Ballot, a class D felony; and Theft, a class D felony.

IT IS THEREFORE ORDERED that Respondent is suspended pendente lite from the practice of law in this State, effective fifteen (15) days from the date of this order.

Posted by Marcia Oddi on Thursday, April 26, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "He was inspired by the character of Atticus Finch in To Kill a Mockingbird to practice law"

The New Albany News and Tribune today published this letter to the editor from Attorney General Greg Zoeller about the legal career of his late cousin, Indianapolis defense attorney Christopher C. Zoeller, who died recently at age 62. The letter begins:

Recently the Zoeller family and friends gathered to mourn the loss and celebrate the life of my cousin, Chris Zoeller, a New Albany native who was well known in the courts of Marion County as a criminal defense lawyer. He was a somewhat larger-than-life personality who created memories with everyone with whom he came in contact.
Here is the obituary published in the Indianapolis Star on April 18.

Posted by Marcia Oddi on Thursday, April 26, 2012
Posted to Indiana Law

Ind. Courts - Marion County Small Claim Court Task Force report to be released May 1st

From an Ind. Courts press release:

The Task Force created to evaluate the Marion County Small Claims Courts will release its findings to the public. The findings describe serious problems in the management and procedures found by the task force. The report includes three recommended plans of action designed to address the identified problems. The written report will be made public at a press conference on May 1st. A copy of the report and appendix will also be made available at the Supreme Court Law Library at the State House and online.

The Indiana Supreme Court created the Task Force in January 2012 to investigate whether litigants in the Marion County small claims courts are denied access to justice that is provided to the litigants in all other Indiana counties. The Task Force also looked into allegations that township trustees exert control over the courts’ financial and personnel matters in a manner that threatens judicial independence.

More than 200 local residents attended public hearings in Perry Township, Pike Township and at the Marion Circuit Court in February and March. About 50 individuals – including collection attorneys, landlords, tenants, small claims defendants, law students, pro bono attorneys and a state senator – testified before the Task Force.

Court of Appeals Judge John Baker and Senior Judge Betty Barteau co-chaired the task force. The judges are submitting an approximately 30-page report to the Indiana Supreme Court, the Court’s Committee on Rules of Practice and Procedure, and to Marion County Circuit Court Judge Louis Rosenberg. Any changes to the management or procedures in the courts would need to be approved by the Indiana Supreme Court, while any changes to the structure of these courts must be authorized by the Indiana General Assembly.

That is Tuesday, May 1st at 2:30 p.m. at the Marion Circuit Court.

Here are earlier ILB entries.

Posted by Marcia Oddi on Thursday, April 26, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Christopher King v. Karen Patrick (NFP)

NFP criminal opinions today (3):

Donald Carter v. State of Indiana (NFP)

Freddie Holman v. State of Indiana (NFP)

Todd Anderson v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 26, 2012
Posted to Ind. Adm. Bd. Decisions

Law - "Duncan Law Gets 5-Year Extension amid Bid for ABA Accreditation"

Recall the NYT stories late last year about Duncan Law School in Knoxville, Tenn., and its efforts to obtain ABA approval?

Sam Favate reported yesterday in the WSJ Law Blog that:

A Tennessee state board gave Lincoln Memorial University’s law school a five-year extension to get accreditation from the American Bar Association, a move that allows the school’s students to sit for the Tennessee bar exam through December 2017, Knoxville News reported. * * *

Tennessee is one of a few states that allows students to sit for the state bar exam without graduating from an ABA-approved school, requiring instead that the school be accredited by the state’s Board of Law Examiners, according to KnoxNews.

Posted by Marcia Oddi on Thursday, April 26, 2012
Posted to General Law Related

Law - "Convicted defendants left uninformed of forensic flaws found by Justice Dept."

That was the headline to a lengthy major story by Spencer S. Hsu, published April 16th in the Washington Post. It was one of a packet of related stories that day. The story begins:

Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.

Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.

As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.

Writing about the WAPO story yesterday, Michael R. Bromwich of Main Justice has a list of "specific steps can and should be taken," including:
Evidence of flawed forensic analysis and testimony must be brought to the attention of defense counsel and not left to the discretion of prosecutors. Prosecutors have a vested interest in preserving the convictions they obtained. They should not sit as judge and jury in determining whether flawed analysis or testimony should be shared with defense counsel. The information must be shared.

Posted by Marcia Oddi on Thursday, April 26, 2012
Posted to General Law Related

Ind. Courts - "Recordings of court proceedings made by court reporters are public records"

Here is an informal opinion from Joseph B. Hoage, Indiana Public Access Counselor, dated Jan. 26, 2012.

The issue involved the Dubois County Circuit Court. Some quotes:

You submitted an inquiry to the Court about obtaining a copy of a transcript for the trial held under Cause No. 19-C01-1108-MI-0298. The court reporter provided that a transcript did not exist, only a digital audio recording. The recording was stored on a computer hard drive, to which a copy of the file existed on CD. Depending on the Court’s schedule, attorneys were allowed to listen to the file; all other individuals were ordinarily not granted access. The estimated cost to obtain a transcript of the trial would be $1125 and would take as long as thirty days to produce. The court reporter advised that it does not make copies of the CDs containing the audio recordings.

You note that one segment of the trial was closed to the public. As a plaintiff, you were allowed under the requirement of confidentiality, to remain and hear the testimony declared confidential. With the possible exception to the segment of the trial declared confidential, you believe that the audio recording of the trial is a public record and should be disclosed in response to an APRA request. You allege that refusal by the Court to provide you with access to or a copy of the audio recording of the trial constituted a violation of the APRA.

The opinion then quotes at length from The Indiana Supreme Court’s Public Access to Court Records Handbook (“Handbook”). The section quoted begins:
Recordings of court proceedings made by court reporters are public records regardless of whether they are produced on magnetic recording tape, compact disk, stenotype, shorthand or digitally recorded upon a computer hard drive unless the specific case type is confidential under Administrative Rule 9. See AR 9(C)(2) regarding the definition of “case record” and AR 9 (D)(4) regarding access to audio and video recordings of proceedings. The public has the right to obtain the record within a reasonable period of time after making the request.
From the conclusion of the 4-page opinion:
The Handbook provides that creating a copy of the audio record is probably the most efficient and least time consuming method to provide public access. The court reporter indicated that a copy of the hearing existed on hard drive and CD. If the Court is able to make a copy of the CD, the recording is not declared confidential, and providing the recording complies with the Court’s management of its audio recording pursuant to AR 9(D)(4) and Indiana Judicial Conduct Rule 2.17, it may do so. The Court may also issue in conjunction with providing a copy of the CD an order specifically limiting its use and barring the recipient from broadcasting the received record in any manner. The Court would further be allowed to charge you a fee pursuant to IC 5-14-3-8.

Posted by Marcia Oddi on Thursday, April 26, 2012
Posted to Indiana Courts

Wednesday, April 25, 2012

Ind. Gov't. - More on "Statewide electronic records policy in the works"

This question occurred to me after I posted this entry earlier this evening discussing a statewide email retention policy ...

Re the quote outlining the current Hancock County policy distinguishing between "public" emails, which are to be preserved, and "transitory" emails, which are not:

The email is public, for example, if it contains information related to the conduct of the public’s business, such as agendas, final reports or recommendations and business transactions.
The question that occurred to me: How would the emails that played such an important role in the Duke/IURC scandal have been classified under this scheme? Wouldn't they have been considered transitory?

Posted by Marcia Oddi on Wednesday, April 25, 2012
Posted to Indiana Government

Ind. Gov't. - "Statewide electronic records policy in the works"

An important story by Maribeth Vaughn, Greenfield Daily Reporter ($$), was reprinted yesterday by the Indiana Economic Digest. Some quotes:

GREENFIELD — Counties, cities, schools and libraries will be instructed this summer on how to save electronic communications such as emails that are deemed public record.

The Indiana Commission on Public Records was charged by the state Legislature this year to come up with a blanket policy on what types of electronic documents are public records and how long they should be retained.

Jim Corridan, director of the state commission, said the commission will meet in July to discuss such a statewide policy. If one is adopted in July, rules for retaining electronic records could go into effect as early as August.

“It will provide tremendous simplification for people trying to find public records at the local level,” Corridan said. * * *

The state policy will also define transitory vs. public emails and how they are to be saved. It will require each government agency to identify a person who will keep such electronic records.

For some agencies, he said, it would be an information technology director. For others, it might be a clerk-treasurer or similar officeholder who maintains electronic records.

Questions over public emails arose in January, when former Mayor Brad DeReamer’s computer was wiped clean just as Mayor Dick Pasco was about to take office. DeReamer’s emails, considered public record, eventually were electronically recovered.

ILB: This brings up some interesting issues, such as whether or not all emails written by a public employee on a public computer on public time are documents that should be retained. According to the story, re the current Hancock County policy:
The county policy, adopted April 12, defines what electronic records are considered public. The email is public, for example, if it contains information related to the conduct of the public’s business, such as agendas, final reports or recommendations and business transactions.

The county policy also states what is “transitory,” or emails that have no administrative, legal or archival value for retaining. Spam and personal correspondence not related to public business are examples of emails that do not need to be retained.

I tried to locate the "charge by the state legislature" in the 2012 bills, but could not. I did locate the following:

HEA 1283 lists in the digest:

Adds electronic media to the definition of "record" for purposes of the public records law. [see top of p. 9 of PDF]

Requires the county commission of public records to implement retention schedules for use by local government officials as part of a records management program for local government public records not more than 30 days after adoption by the oversight committee on public records. [p. 12]

HEA 1003 also "Adds electronic media to the definition of "record" for purposes of the public records law."

Posted by Marcia Oddi on Wednesday, April 25, 2012
Posted to Indiana Government

Ind. Courts - More on: Appellate Clerk announces an entirely new docket by the end of the year

That was to be the end of 2011, according to this Nov. 7, 2011 ILB entry, quoting from an article by state Court Clerk Kevin Smith in the Oct. 31, 2011 Court Times. From the article:

Phase II will involve a complete overhaul of the Clerk’s Online Docket, which, at long last, is being replaced with an entirely new system. Users will be able to search for case dockets using multiple criteria (such as party name, court on appeal, trial court, appellate cause number, lower cause number, case type, litigant name, attorney name, trial court judge, date restrictions, etc.), and then further narrow and/or sort the results by similar criteria. They also will be able to view a docket from the results list, and then “go back” to their results screen again without having to run the query all over again.

Further, interested persons will now be able to use the Clerk’s Online Docket for research purposes in ways they have never been able to before. For example, if someone wanted to see how many appeals were filed from a particular trial court during 2011, she could simply specify the trial court and a date restriction of 2011, and up will come all appeals opened during 2011 from that trial court. She would then be able to look at the dockets in each case, gleaning relevant information from each and then going “back” to the list to look at the next one.

Other examples could include viewing the dockets in all appeals involving mortgage foreclosures, or in all appeals in which a certain attorney was counsel of record, or in all appeals filed with Court of Appeals during a given week. The possibilities are limitless concerning the information that attorneys, members of the media, and members of the public will now be able to gather easily from the Clerk’s Online Docket. We anticipate Phase II will be completed by the end of calendar year 2011.

The ILB has seen no word on what has happened to the exciting project - has it been abandoned?

The Indiana project came to mind this morning when reading this article from the Pew Center on the States, titled "State Courts Replacing Paper with Electronic Record-Keeping." Melissa Maynard's story begins:

When lawyers bring a case before the Texas Supreme Court, they don’t just have the option of filing their documents electronically; they are required to do so. That’s how far the Texas court has gone toward converting itself from a paper-intensive to a paperless operation.

It hasn’t been easy. Some of the judges still insist on taking the electronic documents and printing them out to read page-by-page. “We are in a profession that likes its traditions, and I think that adds to some of the resistance to change,” says Blake Hawthorne, the court clerk.

And the process still has a long way to go. Even through the electronic record has become the official record, parties in a case are still obligated to print out and send in at least a few copies of most types of documents the old-fashioned way. Far fewer copies are required than before, but the volume of paper weaving its way through the court remains substantial. This is in part to meet the needs of the justices who haven’t been as quick to adapt to a paperless way of doing business and partly to deal with the fact that Texas state government doesn’t yet have an electronic records preservation program. “There is an issue as to how one is going to be able to turn over electronic records to the state if they don’t have the ability to take them from us,” Hawthorne says.

Still, the change is happening, and it will not be reversed. “With electronic filing,” says Hawthorne, “you can do anything that you can dream up, it's all just a question of how you're going to pay for it. That’s the reality that quite a few states are dealing with right now.”

Electronic filing, however, was not even mentioned in the Court Times article...

Posted by Marcia Oddi on Wednesday, April 25, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In The Kroger Company v. WC Associates, LLC, as successor in interest to Metro Acquisitions, LLC, a 19-page opinion involving a reciprocal easement agreement, Judge Barnes concludes:

The trial court properly granted summary judgment to WC Associates on its breach of contract claim and properly granted WC’s request for sanctions under Indiana Trial Rule 56(G). However, the trial court erred by granting summary judgment on WC’s claims of criminal mischief, criminal trespass, and criminal conversion. We grant WC’s request for appellate attorney fees regarding its breach of contract action, but we deny WC’s request for appellate attorney fees pursuant to Indiana Appellate Rule 66(E). We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
In John Ludack v. State of Indiana, a 17-page opinion, Judge Crone writes:
John Ludack was convicted of two counts of class A felony child molesting and adjudicated a habitual offender and sentenced to an aggregate term of one hundred thirty years. On appeal, he argues that his constitutional right against compulsory self-incrimination was violated when the detective who interviewed him testified that Ludack neither admitted nor denied the allegations of child molesting but just asked to stop speaking. Ludack also argues that his sentence is inappropriate in light of the nature of the offenses and his character.

We conclude that defense counsel, by first asking the detective whether Ludack had admitted the allegations of child molestation during the interview, opened the door to the detective’s testimony. We also conclude that Ludack fails to carry his burden to persuade us that his sentence is inappropriate. Therefore, we affirm his convictions and sentence.

NFP civil opinions today (1):

Marsha Spurr v. Robert Spurr (NFP)

NFP criminal opinions today (3):

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

Clarence Moore v. State of Indiana (NFP)

Abraham Patterson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 25, 2012
Posted to Ind. App.Ct. Decisions

Vacancy on Supreme Court 2012 - A message from Acting Chief Justice Brent Dickson

Message just received by ILB and others:

Dear fellow Indiana lawyer,

I was forty-four years old in 1985 when two lawyer friends urged that I consider being a candidate for a just-announced opening on the Indiana Supreme Court. I had never aspired to serve as an appellate judge, and was quite content in my seventeenth year of general law practice in Lafayette, Indiana. But their suggestion prompted me to consider the possibility and ultimately led to my appointment.

As you may know, Justice Frank Sullivan has just announced that he will retire later this summer to accept a full-time faculty position at the Indiana University McKinney School of Law. I am sending this email to urge all Indiana lawyers to seriously consider the possibility of appellate judicial service.

The application deadline for the Sullivan vacancy has not yet been established but will likely occur in late spring/early summer. When available, application details will be published on the Court’s website, http://courts.in.gov/jud-qual. To be eligible, you must be a citizen of the United States and either admitted to the practice of law in Indiana for not less than ten years or have served as a judge of an Indiana circuit or superior court for not less than five years.

In addition, for those in the Second District, Judge Carr Darden's retirement is creating a vacancy in the Court of Appeals. Applications for this vacancy must be submitted by May 9, 2012.

Appellate judicial service can be an enormously satisfying opportunity to serve your profession and your fellow Hoosiers. Please consider submitting your application.

Respectfully,
Brent E. Dickson
Acting Chief Justice
Indiana Supreme Court

Posted by Marcia Oddi on Wednesday, April 25, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - Deadline for: Honoring Chief Justice Shepard

Updating this ILB entry from March 6th, Maggie Smith writes to remind that the deadline to register for the May 10th event honoring Chief Justice Shepard is tomorrow (April 26th).

Posted by Marcia Oddi on Wednesday, April 25, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Law - "2011 Indiana law lets criminal records be ‘erased’ from public view"

Laura Lane of the Bloomington Herald-Times had a long $$ story April 22nd on the 2011 restricted access/expungement law. A few quotes:

A 2011 law restricting access to public records in criminal cases makes it OK for job applicants convicted of nonviolent crimes to lie about some felony convictions when seeking employment.

“It’s legal permission to fib,” said Monroe County Chief Deputy Prosecutor Bob Miller.

Indiana’s restricted disclosure law, which went into effect last July, essentially erases a person’s arrest and conviction records from public view under certain circumstances.

Re why this 2011 law is in the news now, the story continues:
[A] candidate for Monroe County auditor arrested in 2001 on a cocaine possession charge was able to use the law to clear his name from public record access sites such as mycase. But details of his arrest still exist in some places — The Herald-Times’ online archives, for instance.

“The law doesn’t apply to you at the newspaper,” Miller said. “It applies to the public agencies that may have dealt with the case.”

Restricted disclosure requests come across Miller’s desk about every day. His job is to review them to make sure they fit the law, then pass them along to the judge who handled the case. “The law says they shall be granted, so if they meet the law’s requirements, they are approved,” he said.

Miller estimates he has reviewed, and granted, between 150 and 200 of the petitions.

He said one impetus behind the law was allowing people with minor criminal convictions in their past to be able to obtain jobs. “People were being held up in their attempts to gain employment because of a long-ago criminal history,” Miller said. “This was one of the mechanisms the Legislature thought might alleviate that problem for people.”

So it’s OK to lie about your criminal past if a court has authorized a restricted disclosure request.

Here is the H-T $$ story from the same day, reported by Dawn Hewitt, and headed "Auditor candidate Huffman carries 2001 cocaine arrest, but has had record blocked under 2011 law: Democrat who graduated from drug court says 2001 arrest is ‘not a secret.’" The story explains that Monroe County auditor candidate James Hans Huffman's cocaine arrest record is no longer available from official sources:
The arrest highlighted for him that his life was not going the way he wanted. It was a short period, he said, and since then, “I’ve worked hard to put my life together the way I want it.”

Part of that was blocking public access to his arrest record from the State of Indiana Public Records Inquiry, aka mycase.in.gov, an online database of civil and criminal cases.

“I have legal right to have it removed from mycase,” Huffman said, since a sufficient amount of time has passed, and his record has been clean since the incident.

“I went through the Monroe County Drug Court,” Huffman said. “I think I’m probably their greatest success story.”

He said the two-year program was stringent and requires making serious changes in one’s life.

“You’ve got them looking over your shoulder the whole time. For me, it was the best thing that ever happened to me,” he said. * * *

A search of the State of Indiana Public Records Inquiry for the names of Monroe County elected officials and candidates for public office reveals many traffic infractions and several misdemeanors among numerous individuals.

A complete criminal record check is not possible with the database, since some of the records can be erased upon request, and since some candidates and officials have changed their names, or may have the same name as or a similar name to someone else in the database.

To use the database, go to mycase.in.gov, and from the pull-down menu, choose Monroe or another county. Then click on either “Criminal & Citation Case Records” or “Civil, Family & Probate Case Records.” For criminal cases, change the search type from “case” to “defendant” name; for civil cases, change the search type from “case” to “party.”

ILB: Also of note is that the 2011 restricted access/expungement law was the subject of a number of amendments and additions in the 2012 session. The bill, HEA 1033, takes effect July 1, 2012. See the final digest here.

For background, see this Oct. 14, 2011 ILB post.

Posted by Marcia Oddi on Wednesday, April 25, 2012
Posted to Indiana Law

Ind. Courts - "Teacher Fired After Receiving Fertility Treatments" [Updated]

Updating this ILB entry from yesterday afternoon, which includes the complaint, ABC News/Good Morning America has a feature story by Russell Goldman, complete with video, on the lawsuit. The story begins:

A Catholic school teacher in Indiana is suing a diocese there, claiming that she was unlawfully terminated after school officials learned she was undergoing fertility treatments to become pregnant.

In a federal lawsuit filed in a Fort Wayne, Ind., teacher Emily Herx claimed that she was fired and told by a senior church official that her attempt to become pregnant through in-vitro fertilization made her a "grave, immoral sinner."

Later in the story:
[Teacher Emily Herx] filed a complaint with the federal Equal Employment Opportunity Commission and won, opening the door to a civil lawsuit, according to her lawyer Kathleen DeLaney [of Indianapolis].

Herx was "terminated only for trying to enlarge her family with husband," DeLaney said, calling her firing a "traumatic event" for the teacher.

The Supreme Court recently ruled that the religious institutions are exempt from discrimination laws in hiring clergymen. A Catholic church for instance cannot be sued for failing to hire women priests because it conflicts with fundamental Church doctrine.

DeLaney told ABC News, that she does not believe the court's decision applies to Herx.

"The facts in this case are distinguishable. There is no ministerial exception. Ms. Herx didn't have religious training, did not teach religious doctrine," she said.

The recent SCOTUS ruling on "ministerial exception" is Hosanna-Tabor Lutheran Church and School v. Equal Employment Opportunity Commission, decided Jan. 11, 2012. See this case analysis from that date by Lyle Denniston of SCOTUSblog, which begins:
Closing the courthouse door much of the way, but not completely, to workplace bias lawsuits by church employees who act as ministers to their denominations, the Supreme Court on Wednesday unanimously gave its blessing — for the first time — to a “ministerial exception” to federal, state, and local laws against virtually all forms of discrimination on the job. The Court’s ruling, which only Justice Clarence Thomas said did not go far enough, did not order courts to throw out all such lawsuits as beyond their jurisdiction, but it left them with only a narrow inquiry before the likely order of dismissal would come down. As soon as the denomination makes its point that it counts an employee as a “minister,” within its internal definition, that is probably the end of the case. And the employee could be anyone from the congregational leader, on down to any worker considered to be advancing the religious mission.
The Herx complaint, in its first few pages, addresses this issue directly.

[Updated at 10:07 AM] Rebecca S. Green of the Fort Wayne Journal Gazette has a long story this morning on the lawsuit.

Posted by Marcia Oddi on Wednesday, April 25, 2012
Posted to Indiana Courts

Tuesday, April 24, 2012

Environment - "Army Corps expands list of options for stopping Asian carp"

Here is the list, from an AP story in the Chesterton Tribune:

The U.S. Army Corps of Engineers has added three options to list of possible measures for preventing Asian carp and other invasive species from migrating between the Great Lakes and Mississippi River watersheds.

In December, the corps released a draft report suggesting methods such as overfishing, ultraviolet light, water guns and introducing native predators in Chicago-area rivers and canals that link the two massive aquatic systems.

A final version issued last week also raised the possibility of freezing or drying sections of the waterways, or zapping organisms with carbon dioxide pellets. Next, the corps will decide which options merit further consideration.

Seriously.

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to Environment

Ind. Decisions - "Jill Behrman killer to have 2013 hearing"

Keith Rhoades has the story in the Bloomington Herald-Times ($$).

John R. Meyers II was convicted of the murder of Jill Behrman in 2006:

Myers appealed his conviction, but it has been upheld by the Indiana Supreme Court. He filed for conviction relief in February of 2009.

The case is in Morgan County Superior Court under Judge G. Thomas Gray. In August 2010, the judge granted requests from Myer’s new lawyers — Anne Murray Burgess and Joanna Green, who were appointed to represent Myers — to make available all evidence collected in the case. * * *

An attorney conference is scheduled for 4 p.m. Nov. 1. The post conviction relief hearing is scheduled for April 23-26, 2013.

Myers is being held at the state prison in Michigan City.

Here is a long list of earlier ILB entries on the Myers case.

Recall that Myers' attorney, Patrick V. Baker of Indianapolis, was suspended from the practice of law in late 2011, for "6 months" plus the ominous "without automatic reinstatement."

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "A schoolteacher claims in ND Ind. that the Diocese of FtW-SB and St. Vincent de Paul School fired her and called her a "grave, immoral sinner" because she and her husband were trying to have a baby through in vitro fertilization"

That is the lede to this story today in Court House News, written by Joe Harris. Read the details at CHN, and read the 11-page complaint here, via the ILB - the case is Emily Herx v. Diocese.

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

In George Clements v. Kimberly Hall and Stanley Harmon, a 7-page opinion, Chief Judge Robb writes:

George Clements (“Clements”) filed a motion for relief from judgment requesting the trial court set aside summary judgment granted in favor of Kimberly Hall and Stanley Harmon in a dispute over real property. The trial court denied Clements’s motion. Clements raises two issues for our review, one of which we find dispositive: whether the trial court erred in denying Clements’s motion for relief from judgment. Concluding the trial court’s denial of Clements’s motion for relief from judgment was in error because Hall and Harmon’s attorney knew Clements was represented by counsel and failed to serve notice of the motion for summary judgment, we reverse and remand for further proceedings. * * *

Pursuant to Johnston, we conclude Foland’s knowledge that Clements was represented by Voils gave rise to an obligation to notify Voils when Hall and Harmon moved for summary judgment even though Voils had not yet filed an appearance. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

In Shawn A. Keckler, Kari Felda, Special Admin. to the Estate of Ryan S. Holloway, Janice Norman, Dewayne Scott, Timothy J. Boganwright, et al. v. Meridian Security Insurance Company, a 21-page opinion, Judge Barnes writes:
Shawn Keckler, Kari Felda (as Special Administrator to the Estate of Ryan Holloway), Janice Norman and DeWayne Scott (as the mother and father of Bryant Scott), Timothy and Sara Boganwright, and Indiana Farm Bureau Insurance Company (“Farm Bureau”) (collectively, “the Appellants”) appeal the trial court’s entry of summary judgment in favor of Meridian Security Insurance Company (“Meridian”) in Meridian’s declaratory judgment action. We reverse and remand.

The Appellants raise five issues, which we combine and restate as the following two issues:
I. whether the trial court properly concluded as a matter of law that an exclusionary clause in Meridian’s umbrella insurance policy that insured Nathan Creighton at the time of a severe automobile accident caused by him precludes any and all claims by the Appellants against Meridian’s policy; and
II. whether public policy requires exclusion of coverage for the Appellants’ claims. * * *

In sum, we conclude that Meridian has not met its burden on summary judgment of establishing that the exclusionary clause for injuries arising out of the use of marijuana applied in this case. Our holding today has no effect on the validity of cases such as Bennett and Shepler that decided much different questions in the context of the criminal law. As the Pennsylvania Supreme Court noted in Eisenman, “the insurance policy in no way saves the insured from the consequences of his criminal act.” Eisenman, 264 A.2d at 675. Creighton has been penalized for that act. Denying insurance coverage here, on the other hand, would have drastic consequences not only for Creighton, but also for “innocent” injured parties seeking recompense for the injuries he caused.

We reverse the entry of summary judgment in favor of Meridian and remand for further proceedings consistent with this opinion.

In Delbert Conklin v. Review Board of the Indiana Department of Workforce Development and Carter Express, Inc. , a 9-page opinion, Judge Barnes writes:
Delbert Conklin appeals the denial of his application for unemployment benefits by the Review Board of the Indiana Department of Workforce Development (“the Board”). We reverse.

The sole restated issue we need address is whether there is sufficient evidence to support the Board’s decision that Conklin was terminated from his employment for just cause. * * *

The Board’s determination that Conklin was discharged for “just cause” was unreasonable because of the lack of evidence that the accident was his fault. We reverse the denial of unemployment benefits to Conklin.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of M.B., D.B., and D.S.; M.B. (Mother) v. Indiana Dept. of Child Services (NFP)

In Re The Marriage of: Leanne Kathleen Johnson v. Florenzo Johnson (NFP)

NFP criminal opinions today (3):

Michael L. Crowe v. State of Indiana (NFP)

Harold W. Reynolds v. State of Indiana (NFP)

Releford Green, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to Ind. App.Ct. Decisions

Not law - "The Confusion of Hospital Pricing"

Roni Caryn Rabin, who writes the Consumerist column in the NYT, writes today at length on:

... the report published Monday in the Archives of Internal Medicine, [showing] fees for a routine appendectomy in California can range from $1,500 to — in one extreme case — $182,955. Researchers found wide variations in charges even among appendectomy patients treated at the same hospital.
More from the story:
The wide range of hospital prices isn’t limited to appendectomy. In 2007, researchers at the University of Pittsburgh and elsewhere posed as patients trying to get pricing information from hospitals in advance of a procedure, a right under California state law. Hospital hysterectomy charges ranged from $3,500 to $65,300, the researchers found. Gallbladder removal charges ranged from $2,700 to $36,000, and a colonoscopy screening might cost anywhere from $350 to $5,805.

Fewer than one-third of the 353 hospitals that were queried even responded to requests for pricing information. Those that did often did not provide all the information requested or say whether physician fees were included, said Dr. Ateev Mehrotra, an assistant professor of medicine at University of Pittsburgh School of Medicine and a RAND policy analyst who was the senior author of that study.

“In the past decade, there has been an aggressive push to make the patient a more active consumer who shops around for care,” Dr. Mehrotra said. “The question is, can they do it?”

He does not think so. “The current process does not facilitate that by any means,” he said. “It’s a crazy process. If we want consumers to play this role, we need to fix this system.”

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to General News

Law - "Analysis: State attorneys general: New Republican power"

Joan Biskupic, now at Reuters, has this long, interesting story today about federal challenges brought by state attorneys general:

Abbott and Bondi [Texas AG Greg Abbott and Florida AG Pam Bondi] said litigation costs are largely absorbed through their in-house legal staffs. For the 26-state healthcare challenge, the states hired outside lawyer Paul Clement, a former U.S. solicitor general under President George W. Bush. Clement agreed to a flat $250,000 fee, divided among the states.

On Wednesday, Clement will be representing Arizona in its defense of its immigration law before the Supreme Court. Clement and his legal team will receive $250,000 for work in preparation on this week's case, said Matthew Benson, a spokesman in the Arizona governor's office.

Among those leading the expanding Republican contingent of state attorneys general are veterans such as Abbott, elected in 2002, and new figures backed by the conservative Tea Party movement such as Bondi, who was sworn in last year. Their lawsuits have touched on a myriad of politically charged issues.

In February, seven Republican attorneys general, including Abbott and Bondi, joined Catholic institutions in a case against the Obama administration and its new contraceptive coverage required by the healthcare overhaul. Separately, Abbott and Virginia Attorney General Ken Cuccinelli have taken the lead in ongoing challenges to U.S. environmental protection regulation.

Many of the Republican top state prosecutors also have vigorously fought against Department of Justice efforts to block state voter-identification and other new electoral rules that could themselves affect turnout and ballot results. Texas and Florida have, in addition, challenged the longstanding federal law that requires places with a history of bias against blacks and other minority voters to clear any electoral changes with the federal government. * * *

Major Republican challenges related to the environment, including one Virginia joined with industry groups against regulation of carbon-dioxide emissions, now at the U.S. Court of Appeals for the District of Columbia Circuit, are still awaiting resolution. * * *

To be sure, attorneys general, most of whom are elected to four-year terms and whose work mainly involves consumer advocacy and crime busting, still join forces across party lines. "Attorneys general, Republican and Democratic alike over the last 10 years, have become somewhat more partisan and more aggressive," said Iowa Attorney General Tom Miller, a Democrat who was first elected in 1978. "But ... the vast majority of things that AGs do are on a bipartisan basis." In March, 49 state attorneys general (all but Oklahoma's) joined the U.S. government in a $25 billion settlement with five major mortgage lenders to help distressed borrowers.

The fact that the partisan split between states' attorneys general is now nearly even has largely gone unnoticed by the public. But during arguments on the healthcare law, Supreme Court Justice Antonin Scalia wryly asked Clement, who was representing the state challengers, "Is there any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors? Is that possible?"

"There's a correlation, Justice Scalia," said Clement.

ILB: What about Indiana? Discovering what federal lawsuits the State of Indiana is participating in is not an easy matter. See this ILB entry from August 7, 2009 headed "Who should decide Indiana's position on national legal issues? Who should know?, calling for transparency.

Several years ago, with cooperation from AG Zoeller's office, the ILB was able to prepare a 2009 table of AG Zoeller Amicus Briefs. My hope had been that the AG's website would initiate a similar table, continuously disclosing the lawsuits the AG has elected to participate in, and to take a position in on behalf of Indiana's citizens.

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to General Law Related | Indiana Government

Ind. Law - "Sheriffs Ask For Consistency With Sex Offender Registry"

Jason Gabrick of Indiana Public Media writes today:

Marion County Sheriff John Layton recently removed 520 names from the county’s Sex Offender Registry after erroneous records were discovered. Layton’s legal counsel, Kevin Murray, says the names removed were those of sex offenders who had been sentenced before Indiana had enacted a Sex Offender Registry law. * * *

Morgan County Sheriff’s Office Investigator, Don Abel, says the problem is Wallace offenders have been registering since 1994 and every county has to decide what to do with that registration information now that they are no longer required to register.

“Some county’s prosecutors, I’m sure, said take them out of the list whether there is a court order or not, other prosecutors said don’t make them register but leave them on the list,” Abel says. “And there was a third set of prosecutors who said don’t make them register, leave them on the list, but don’t put their address on the list because if they’re not required to register they may no longer be living at that address.”

Abel’s biggest concern is a lack of standardization across the state.

Indiana Sheriffs Association Director, Steve Luce, says although no state entity regulates how the counties interpret the State Supreme Court ruling, his agency is trying to help sheriffs standardize their practices.

“It’s their record and they have to interpret. What we try to do with the Sheriff’s Association is to reach out to the legislators and try to get the legislation to where it can be interpreted one way so that everybody is consistent in how they do the registration,” Luce says.

Murray, Abel, and Luce say the legislation needs to catch up with the judicial decision regarding Wallace v. State. All three say they hope the general assembly will meet this summer to determine what the legislative reaction should be.

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to Indiana Law

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

Updating yesterday's ILB entry, some quotes from John Tuohy's story today in the Indianapolis Star, which is headed "Event Safety Alliance putting together guidelines for concert safety: Music industry organization calls it No. 1 issue; governor says stage collapses are a 'global problem'":

But one critic of the group called its formation a "publicity stunt," intended to stop stricter government regulation.

"This is just another fake PR group that the industry always creates after a disaster to get publicity and then nothing happens," said crowd safety consultant Paul Wertheimer, founder of Crowd Management Strategies, of Los Angeles, who has advised cities and groups around the world on how to improve safety at events.

About 40 members of the consortium held a closed-door meeting with Gov. Mitch Daniels and other top administration officials. * * *

The Alliance is reviewing a manual used in Europe since 1993 called the Event Safety Guide, or "purple guide," and plans to use it as a model for a standard in the United States. The guide emphasizes communication and safety planning among those responsible for putting on concerts.

Many of the recommendations mimic those suggested by Witt Associates, which conducted an independent investigation of the State Fair accident. Among the purple guide suggestions are "creating a health and safety policy; planning to ensure the policy is put into practice; and organizing an effective management structure and delivery of the policy."

After the meeting, Daniels called deadly stage collapses at public events a "global problem." He said the state already has moved to toughen its safety standards and could incorporate some of the Alliance's suggestions into its regulations.

"We are on full and maximum alert now," Daniels said. "You won't be putting up anything much bigger than a pup tent in Indiana from now on that somebody doesn't come by and ask questions first."

Senate Bill 273 requires those who put up temporary stages at events to conduct inspections of them and submit proof to the state. The law will expire Jan. 1, 2014. In the meantime, a summer study committee will delve more deeply into the safety concerns. In 2013, the Indiana General Assembly could approve more thorough legislation.

Daniels said that falling stages are a problem around the world, and he rattled off a handful of other tragedies that occurred last year. * * *

Wertheimer scoffed at that characterization.

"It is only a global problem among reckless, careless and incompetent event organizers," Wertheimer said. "It is not a global problem among people who know what they are doing."

The investigations by Witt and the construction firm, Thornton Tomasetti, criticized the Fair Commission as unprepared for the storm that blew the rigging and scaffolding over. The probes also concluded that the rigging was not as sturdy as it should have been and that nobody bothered to inspect it.

Posted by Marcia Oddi on Tuesday, April 24, 2012
Posted to Stage Collapse

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

Sunday, April 22, 2012

Ind. Law - "Ensuring the integrity of the sex offender list" and "Marion County repairs sex offender registry"

This editorial today is from the Fort Wayne Journal Gazetteand is headed "Ensuring integrity of offender list":

Indiana’s sex offender registry is a valuable tool if its information is correct. But not all counties are diligent in ensuring the addresses of convicted sexual offenders are accurate. As a legislative study committee prepares to examine the registry this summer, lawmakers would be wise to look to Allen County’s experts.

The Indianapolis Star examined the state registry for a recent story and found many problems with Marion County listings. Some showed offenders living at addresses for vacant lots. Others reported addresses for offenders now imprisoned.

Many of the problems relate to Marion County’s handling of offenders convicted before July 1994. The Indiana Supreme Court ruled three years ago that Richard P. Wallace, convicted in 1989, shouldn’t be required to register for an offense committed before the statewide registry was created. The ruling applied to hundreds of others whose names had been wrongly included.

In Marion County and some others, the so-called Wallace offenders have been left on the registry with the last address they reported. The result is that some addresses inaccurately show sex offenders residing there.

By contrast, the Allen County Sheriff’s Department rightly removed the names of Wallace offenders, averting a cluttered list that residents can’t rely on.

Cpl. Mike Smothermon, one of three sheriff’s department employees overseeing the Allen County registry, said the intent of the law was to notify the public when an offender moves into a neighborhood. The intent is compromised when the information isn’t dependable.

“Accuracy is absolutely our goal here,” the detective said. “The integrity of the information is our first priority.”

The Allen County list is meticulously maintained, with law enforcement officers from the county, Fort Wayne and New Haven routinely participating in visits to make sure offenders live where they say they do.

It’s not an easy task; offenders move frequently.

Because Smothermon knows residents won’t routinely check the registry, he encourages them to sign up for email notification. Just more than 3 percent of Allen County households have done so, the highest percentage in the state.

He credits Sheriff Ken Fries for making the registry a priority and for providing the resources needed to ensure its accuracy. He also cites the OffenderWatch software program that allows the system to be updated instantly and for officers throughout the state to share information when offenders relocate.

When lawmakers meet this summer to address the statewide system, Smothermon and Cpl. Jeff Shimkus, who also helps maintain the registry, hope there will be suggestions from law enforcement, judicial representatives and treatment providers. A bill in the last session would have required law enforcement to continue posting the names of nonviolent offenders even after the requirement to update their addresses ends, eventually burdening the list with useless information.

“We have to make sure it’s not a knee-jerk reaction to pass a new law,” Shimkus said. “We’ve got to come up with rules that make sense.”

Also today, this front-page story in the Indianapolis Star, headed "Marion County repairs sex offender registry: Sheriff removes 'Wallace offenders' in the name of accuracy, but other counties say the public is better served by leaving them on," appears one week after the front-page Star story of April 15th, headed "Sex offender listing intended to protect the public is riddled with errors" referenced in today's FWJG editorial.

From today's Star story, as reported by Alex Campbell:

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.

But, in doing so, he also placed Marion County at odds with numerous state officials and lawmakers in a philosophical debate over how best to handle a particular group of offenders.

The debate is over so-called "Wallace offenders," whose crimes did not require registration when they committed them. Thanks to a state Supreme Court ruling nearly three years ago, these offenders don't have to update law enforcement when they move.

The result is that untold numbers of "Wallace offenders" in Indiana remain on the registry, but with outdated addresses. And those locations pop up and look like current addresses of sex offenders when a person does a typical search by address.

The Star's April 15 story, for example, found dozens of such instances in Marion County alone.

"Based on the report," Layton wrote in a letter to The Star, "in accord with the Indiana Supreme Court decision, I have ordered 'Wallace Offenders' removed from the system."

The order reduces the size of the county's portion of the state registry by more than 25 percent. Layton's letter thanked The Star "for bringing a clearer focus on this ever challenging endeavor."

His legal counsel, Kevin Murray, told The Star on Friday that Layton was worried about "the integrity of the system" and felt that keeping these offenders without verifying their addresses "sends a mixed message."

That mirrors the position of another of the state's largest counties, Allen County.

But it is a position in conflict with others -- and illustrates the county-by-county inconsistency with the registry, which was created by the legislature in 1994.

Many other counties prefer keeping Wallace offenders on the public registry. And they have the support of Department of Correction officials and the attorney general, who have argued -- at the Statehouse and in court -- that these offenders should stay on, even if law enforcement no longer tracks where they live.

Even if it means increasing the likelihood of sharing erroneous information with the public.

Attorney general spokesman Bryan Corbin would not comment on Marion County's decision. A Department of Correction official did not return a message left Friday afternoon.

Each county has the final say on how it manages its sex offenders, as long as it fits with the letter of the law. But the statewide Indiana Sheriffs' Association provides guidelines on "best practices" in the field, and its executive director, Steve Luce, said Friday that he still recommends keeping Wallace offenders on the registry, and marking them in some way to make it clear that they might have moved.

Posted by Marcia Oddi on Sunday, April 22, 2012
Posted to Indiana Law

Ind. Gov't. - Sunday South Bend Tribune focuses on child abuse

Marisa Kwiatkowski and Virginia Black of the South Bend Tribune report today that Indiana Department of Child Services Director James Payne "said his office is considering two changes as a result of the circumstances surrounding 10-year-old Tramelle Sturgis' beating death in South Bend in November." More:

Director James Payne said at a recent community meeting in Merrillville, Ind., that the department will look at how DCS workers respond to allegations made by someone who did not witness abuse or neglect firsthand.

In Tramelle’s case, a concerned person contacted the DCS call center to report abuse two other people had described was happening in the Sturgis family’s home that night, including that a child had been seen bleeding and limping. The caller indicated a desire to remain anonymous because of safety worries.

DCS told the caller to contact police if the children were in imminent danger, then determined DCS should investigate within 24 hours, Payne said. DCS caseworkers are supposed to respond within one hour if the child is believed to be in immediate danger. * * *

DCS has not responded to Tribune questions about whether police were ever alerted to the caller’s detailed allegations or why an on-call case manager did not respond that night.

DCS records show case managers visited the next day and two more times, finally finding someone at the home four days later and soon after closing the case.

Payne said at the recent meeting that his agency probably should have responded to the May call within one hour instead of within 24 hours. Yet he said he doesn’t believe the outcome of the investigation would have been different if they had responded immediately. At the time, neither police nor DCS found evidence of abuse or neglect in the home, Payne said.

He also said his agency will look at whether DCS and police should go to a home together instead of at different times.

Also today, Virginia Black of the Tribune has a lengthy story headed "When to purge DCS records? New law addresses 'unsubstantiated' reports, but concern lingers." Some quotes:
Until last month, Indiana law mandated that unsubstantiated records be destroyed after six months.

In the wake of the Sturgis case, local investigators learned that school records showed officials there had reported abuse twice as well, but DCS no longer had those records. Had those earlier complaints remained in the system, might officials have given more weight to the allegations in May?

St. Joseph County Prosecutor Michael Dvorak was so frustrated by the lack of older records in the Sturgis case he urged state Sen. John Broden, D-South Bend, to amend the law in the most recent General Assembly session.

In a Jan. 9 letter to Broden, Dvorak wrote, “The school these children had attended made calls to DCS. A caseworker visited the home and the school. The caseworker closed her report as ‘unsubstantiated’ after interviewing the children in the presence of the father.

“Per DCS policy, those records were destroyed. Fortunately, the school maintained records,” Dvorak continued in his letter. “Had the school not kept records there would be no way of knowing what, if any, investigation had ever been undertaken by DCS. … A statute should be enacted to assure citizens there is oversight of DCS. While I am confident there are other examples of the need to make sure DCS records are accessible, I can imagine no example more compelling than the beating death of this child and the serious bodily injury to his brothers.”

Broden offered an amendment to Senate Bill 286 that would have required DCS to keep unsubstantiated records for at least three years.

But by the time Gov. Mitch Daniels signed S.B. 286 into law on March 14, Republicans had pushed a compromise that removed the requirement to destroy records but left open the possibility that an “interested party” could request that such records be expunged.

Language loopholes?

Broden, a former DCS attorney himself, sees the argument that some unsubstantiated reports falsely and unfairly accuse parents, but “it’s a very tight circle of who can get access to the reports.”

DCS Director James Payne acknowledged in a January interview that a current call might be taken more seriously if there were similar past reports, even unsubstantiated ones.

There is much more in the long story.

Posted by Marcia Oddi on Sunday, April 22, 2012
Posted to Indiana Government

Ind. Gov't. - Sunday Muncie Star-Press focuses on child abuse in a number of stories today

In a long opinion piece today in the Muncie Star-Press, Lisa Nellessen-Lara writes about the incident a year ago where a Muncie Central student reported to school administrators that she had been raped, but officials delayed making a report. (See this March 8, 2011 ILB entry headed "Ex-Muncie Central principal charged over handling of rape case.") From the editorial:

The Star Press set out to due last April, when we partnered with Marcus Jackman and the fantastic journalists at Indiana Public Radio to raise awareness of the issue of child abuse.

Published over four Sundays in April 2011, the series -- "For a Child's Sake: The Epidemic of Child Abuse" -- pulled no punches.

Over the course of the series, reporters Keith Roysdon and Douglas Walker looked at the issue of child abuse from the perspective of police, prosecutors, social workers and families. They detailed the toll of abuse on children, through interviews with adult survivors, physicians and social workers.

Those profiled also included perpetrators, and the law enforcement authorities on the front lines of local abuse cases.

And the reporters provided Star Press readers with their first detailed look at Muncie's Child Advocacy Center and its role in helping authorities improve their investigations of child-abuse cases.

An underlying theme of the series was the responsibility all citizens share in reporting suspected abuse of children.

Unfortunately, the ILB missed the stories last year and the Star-Press does not appear to provide a public archive of even its award-winning stories.

Today, however, the Star-Press has three new stories om the topic:

"Can child abuse response be 'right-sized?' As the state follows a new abuse reporting process with efforts to close treatment facilities, advocates say the Department of Child Services cares more about money than children." The very long story is reported by Keith Roysdon and Douglas Walker. The lengthy story begins:

MUNCIE -- In the wake of criticism over Indiana's new system for reporting child abuse -- including allegations that the Department of Child Services' screening process dismissed reports that might have prevented the deaths of several children at the hands of abusers -- DCS is implementing more changes that could hit communities across the state.

Throughout Indiana, dozens of treatment centers that offer shelter and counseling to abused children could be forced to close through a DCS "right-sizing" process. Facilities like Muncie's Youth Opportunity Center -- home to 136 abused, neglected and troubled children -- could lose state funding. So could half the state's nearly 100 such facilities.

DCS Director James Payne's push to cut costs at DCS -- resulting in more than $100 million of the agency's annual budget being turned back into the state's coffers -- included the state's centralized, 800-number child abuse reporting system, in place since 2010.

Now DCS -- which has already cut payments to some treatment centers by as much as 25 percent -- is requiring the centers to submit proposals for how they will contain costs.

"Current utilization of residential beds ... is below 55 percent," DCS wrote in a recent request for proposal sent to juvenile treatment centers around the state. "DCS intends to right-size the number of beds it contracts for ..."

"Right-sizing" is a phrase used by private industry and is often equated with cutbacks and layoffs. It isn't commonly used in connection with treatment of children who have been beaten or sexually molested.

"Right-size?' Delaware County Prosecutor Jeffrey Arnold said last week in a mocking tone. "That's a cute word."

Arnold is among officials, from Delaware County and elsewhere in the state, who told The Star Press they're increasingly alarmed about efforts by DCS -- under Payne, a former Marion County juvenile court judge appointed to the DCS post by Gov. Mitch Daniels -- that have changed how the state handles child abuse allegations and, when substantiated, cases.

From later in the story:
Critics of DCS point to incidents in recent weeks that have been reported in The South Bend Tribune and The Indianapolis Star. In particular, the beating death of 10-year-old South Bend resident Tramelle Sturgis in November, more than five months after a caller contacted DCS through its 800-number hotline and urged authorities to investigate abuse in the home. The Indianapolis Star noted several deaths involving children around the state, including that of a toddler who died months after a call to the hotline.

[Deputy Prosecutor Eric] Hoffman noted that he called the state's 800 number for reporting child abuse and was put on hold 45 minutes.

"If Billy Bob sees his neighbor beating a child with a fishing rod, how many numbers will he call?" Arnold asked. "Will he wait that long? It's insanity."

"Local prosecutors' efforts to change abuse law failed" is the second story today by the same reporting team. The long story begins:
MUNCIE -- In the wake of a rape at Central High School in November 2010, it quickly became apparent to Delaware County prosecutors that a state law requiring citizens to promptly report child abuse needed to be reworded.

A judge last month found ex-Central principal Christopher Smith guilty of a misdemeanor in his failure to immediately alert authorities to the reported rape. Testimony at an earlier trial, however, reflected he was by no means the only Muncie Community Schools administrator uncertain whether the student-on-student assault met the legal definition of child abuse.

That confusion prompted Delaware County Prosecutor Jeffrey Arnold and Deputy Prosecutor Eric Hoffman to enlist the help of local state representatives Dennis Tyler and Bill Davis in early 2011 to "clarify the reporting-of-child-abuse statute," Hoffman recalled recently.

By the end of that legislation session, however, their effort had gone nowhere.

Participants in the saga have different explanations for the proposed legislation's ultimate failure, but all agree on one thing -- officials at the state Department of Child Services, including its influential director, James Payne, were strongly against changing the wording of the law.

According to Hoffman and Arnold, Payne's concern was that a broader definition of child abuse would result in greater use of DCS's centralized -- and controversial -- 800-number child abuse reporting system.

"His concern was that the call center would get more calls," Hoffman said.

The final story today, also by the Walker and Roysdon team, is headed "State weighs in on juvenile case: DCS consultant often declines to approve residential treatment, judges say." The story begins:
MUNCIE -- There's a little-seen figure in the decision-making process in Delaware County's juvenile court, completely separate from the judge, prosecutor and probation officer.

The lesser-known player? A Fort Wayne real estate agent.

John-Michael Segyde is the Indiana Department of Child Services probation service consultant for much of the eastern third of Indiana, including Delaware County. As such, Segyde -- who is also a Coldwell Banker real estate agent in Allen County -- passes judgment on the treatment plans for juveniles whose cases pass through the court.

Segyde -- who last week did not respond to a call seeking comment from The Star Press -- doesn't come to court and has no dealings with the judge -- or the juveniles, for that matter.

Under the system set up by DCS in the past two years, Segyde reviews cases and, as he did last week in the case of a juvenile who is perpetually absent from school, often contradicts the orders issued by the judge.

Segyde filed a report last week that disagreed with an order by Brian Pierce -- the local court system's master commissioner for juvenile court -- that the youngster be placed in the Youth Opportunity Center. That meant that Pierce will, as he has in the past, overrule the DCS finding and order placement, requiring DCS to pay for the youth's stay at the YOC.

While a system is in place for DCS to respond to a judge's override of a consultant's decision by taking the case to the Indiana Court of Appeals, that hasn't happened in any local cases.

Pierce last week estimated 60 to 75 percent of the requests for local juveniles to be placed in treatment facilities such as the YOC are denied by Segyde, "a guy sitting in Fort Wayne" who doesn't see or hear the participants in a given case.

"That first-hand (experience) is vitally important when you're dealing with kids," Pierce said.

Posted by Marcia Oddi on Sunday, April 22, 2012
Posted to Indiana Government

Ind. Law - "Texting and driving: It's dangerous and it's illegal"

That is the heading to an editorial in the April 19th Muncie Star-Press. The editroial reports that almost no one gets caught:

In Indiana, a police officer has to see you text and drive, which is almost impossible to determine. That driver holding a cell phone might be dialing it, checking a map or playing a song. But if you are caught, the fine can be $500.

So the law as it's written now is nearly useless, and the number of people ignoring it, especially teens, is downright scary.

Sometimes drivers are charged after an accident. This brief story yesterday in the IndyStar, by John Tuohy, reports:
Police say a truck driver who rear-ended a school bus, slightly injuring nine students, was texting when his truck plowed into the elementary students’ bus in Indianapolis. * * *

Pike Township School Police Chief Allen Kasper * * * says driver Michael Mattingly “said he had just received a text and was reading it.” Mattingly was cited for texting while driving and is subject to a fine unless he contests the ticket.

From April 12th, a Muncie Star-Press story begins:
Authorities say a New Castle woman admitted she was texting when her vehicle left a county road Thursday afternoon and struck a utility pole. * * *

The trooper gave Williams a ticket for "use of a telecommunications device while operating a motor vehicle."

Posted by Marcia Oddi on Sunday, April 22, 2012
Posted to Indiana Law

Environment - "EPA’s battle shifts from pollution to politics"

Here are a few quotes from a long story by Dina Cappiello of the AP, published today in the Gary Post Tribune:

Gone are the many obvious signs of pollution — clouds of smoke billowing from industrial chimneys, raw sewage flowing into rivers, garbage strewn over beaches and roadsides — that heightened environmental awareness in the 1970s, and led to the first Earth Day and the EPA’s creation in 1970. Such environmental consciousness caused Congress to pass almost unanimously some of the country’s bedrock environmental laws in the years that followed.

Today’s pollution problems aren’t as easy to see or to photograph. Some in industry and politics question whether environmental regulation has gone too far and whether the risks are worth addressing, given their costs. * * *

“To a certain extent, we are a victim of our own success,” said [Indianapolis native] William Ruckelshaus, who headed the EPA when it came into existence under Republican President Richard Nixon and was in charge during the Documerica project. “Right now, EPA is under sharp criticism partially because it is not as obvious to people that pollution problems exist and that we need to deal with them.”

Environmental laws that passed Congress so easily in Ruckelshaus’ day are now at the center of a partisan dispute between Republicans and Democrats. Dozens of bills have been introduced to limit environmental protections that critics say will lead to job losses and economic harm, and there are those who question what the vast majority of scientists accept — that the burning of fossil fuels is causing global warming.

In the 1970s, the first environmental regulations were just starting to take effect, with widespread support. Now, according to some officials in the oil and gas and electric utility industries, which are responsible for the bulk of emissions and would bear the greatest costs, the EPA has gone overboard with rules.

Posted by Marcia Oddi on Sunday, April 22, 2012
Posted to Environment

Ind. Law - Is it the Supreme Court's fault the sex offender registry is incorrect?

Last Sunday the Indianapolis Star had a long, front-page story headed "Sex offender listing intended to protect the public is riddled with errors."

Yesterday at least two Indiana papers, the Evansville Courier Press and the Gary Post Tribune, ran shortened AP rewrites of the story.

Unfortunately, the AP version also includes this erroneous paragraph, which was not a part of the original Indianapolis Star story:

Efforts to correct the registry, however, have been stymied by the state Supreme Court's decision nearly three years ago to create a group known as "Wallace offenders."
This rewrite implies it is the Supreme Court's fault the registry is incorrect, rather than that it is the fault of those who persistently attempt to keep the Wallace offenders on the list in the face of the Supreme Court's order that application of the law to pre-July 1, 1994 offenders is unconstitutional.

Posted by Marcia Oddi on Sunday, April 22, 2012
Posted to Indiana Law

Saturday, April 21, 2012

Ind. Gov't. - "Indiana's two U.S. Senate candidates differ on meaning of ‘advise and consent’ for court nominees"

Great analysis piece today by Lesley Weidenbener, managing editor of the Franklin College $$$ online publication, The Statehouse File. A few quotes:

INDIANAPOLIS – One of the issues that divides the Republican candidates seeking the GOP nomination in the U.S. Senate race is their differing views on assessing judicial nominees.

Incumbent Sen. Richard Lugar has supported court nominees from Republican and Democratic presidents, even some that other GOP lawmakers say are too liberal to be confirmed.

That’s because Lugar believes that the Senate’s role in confirming nominees is to determine whether the individual is qualified to serve. Lugar doesn’t appear to see this role as at all political. * * *

“Judge Sotomayor is clearly qualified to serve on the Supreme Court and she has demonstrated a judicial temperament during her week-long nomination hearing. She is well regarded in the legal community and by her peers.”

Lugar was one of just nine Senate Republicans who voted for the successful confirmation. And it’s that kind of vote that has raised the ire of some of his fellow Republicans, conservative groups and his opponent, state Treasurer Richard Mourdock, who has used the issue in ads against Lugar.

Mourdock says he would vote against nominees who are too liberal in their rulings on abortion, gun rights and other issues. Mourdock’s view of the Senate’s “advise and consent” role is to consider not only judicial qualifications but ideology as well.

Mourdock said he will confirm nominees who “respect the original intent of the founders when interpreting the meaning of the Constitution.”

It’s that stance that helped earn Mourdock key endorsements from Right to Life and the National Rifle Association, groups with thousands of Indiana members and followers.

The distinction between the candidates is important not just for Hoosiers but the nation. Judicial nominations and confirmations have become increasingly partisan fights that slow down the process of approving judicial nominations and have led in part to a significant number of vacancies in federal courts. * * *

Much of the Senate race so far has focused on issues about Lugar’s residency and Mourdock’s use of Republican email addresses and how much money outside groups are putting into the state.

But there are some real policy differences between the candidates and the way they will approach court nominees is one of the biggest.

Posted by Marcia Oddi on Saturday, April 21, 2012
Posted to Indiana Government

Ind. Gov't. - Updating again: Unslated judicial candidates file lawsuit against Marion County election boards

Following on yesterday afternoon's entry, the Indianapolis Star this morning reports that:

Marion Circuit Judge Louis Rosenberg denied the candidates' request for an emergency injunction. He also granted the Board of Voter Registration's request for a change of venue to a court in another county, delaying the case.
For more, see the Odgen on Politics post from last night.

Posted by Marcia Oddi on Saturday, April 21, 2012
Posted to Indiana Government

Ind. Decisions - More on "Pratt’s order should be required reading for law students as it states precisely how not to bring a lawsuit."

Updating this ILB entry from March 28th, which includes a link to the March 26th order, the Indianapolis Business Journal (IBJ) has a story today, headed "Judge slaps down attorneys behind ITT fraud lawsuit," that begins:

Judge Tanya Walton Pratt late last month granted ITT’s motion for attorney’s fees and sanctions against Mississippi attorney Timothy Matusheski, as well as two law firms that worked with him on the case—Motley Rice LLC in Los Angeles and Plews Shadley Racher & Braun LLP in Indianapolis.
The rest is behind the IBJ's paywall...

Posted by Marcia Oddi on Saturday, April 21, 2012
Posted to Ind Fed D.Ct. Decisions

Friday, April 20, 2012

Ind. Law - "New law school wins zoning OK Indiana Tech hopes to begin classes for 100 in fall ’13"

Benjamin Lanka has the story today in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Friday, April 20, 2012
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In Re the Matter of the Support of David L. Minick, II, David L. Minnick v. Victoria S. Cox (NFP)

Donald E. White v. Susan A. White (NFP)

NFP criminal opinions today (6):

Andre M. Perry v. State of Indiana (NFP)

Dennis Fecker, Jr. v. State of Indiana (NFP)

Donald Parker v. State of Indiana (NFP)

Jakesha J. Wilms v. State of Indiana (NFP)

Carl Daulton v. State of Indiana (NFP)

William D. James v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 20, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: "Sex offender listing intended to protect the public is riddled with errors"

Following up on ILB entries from earlier this week, Stateline has a long article today by Maggie Clerk, headed "Are sex offense laws too broad?." Here is how it begins:

Over eight years in the Missouri House, Republican Representative Rodney Schad has gotten numerous phone calls, letters, and emails from registered sex offenders and their families about the damage the registry has caused in their lives — the harassment, persistent unemployment, and community ostracism. Three years ago, Schad decided to start researching the state's registration policy, and what he found surprised him.

"There's no way to tell who's dangerous and who isn't," says Schad. "[People] look up their address and see 10 offenders living or working near their house." In his view, the list is becoming bloated and less helpful to ordinary citizens than it should be.

To try and refine who actually shows up on the public registry, Schad crafted legislation to create a tier system so that only the most dangerous offenders are listed publicly. Currently, anyone convicted of any type of sex crime, from public urination to child molestation, is placed on the list.

The bill also creates an appeals process, so that offenders can petition to be removed from the registry after 10 or 20 years, depending on their crime, and removes all juvenile sex offenders tried in juvenile court from the public registry. The bill has passed the Republican-led House of Representatives both this year and last year with bipartisan support because, Schad says, "every one of our representatives has these offenders in their districts." It remains to be acted on in the Missouri Senate, which has not concluded its 2012 session.

This proposed change to Missouri's registry comes just as the state has moved into compliance with the federal Sex Offender Registration and Notification Act (SORNA), a portion of the Adam Walsh Act passed by Congress in 2006. That law is aimed at protecting children from predators by collecting sex offender data in a national public registry and requiring those people listed in it, including juveniles, to report their movements to law enforcement. But even though the federal compliance deadline has passed, only 15 states have substantially complied. (Missouri is one of them.) [ILB: Indiana is not.]

Many states have decided not to comply because their legislators oppose lifelong registration for some juvenile sex offenders, one of the requirements of SORNA. Other states have found that even though noncompliance comes with a 10 percent cut to federal justice assistance grants, the cost of compliance would be much higher.

Posted by Marcia Oddi on Friday, April 20, 2012
Posted to Indiana Law

Ind. Gov't. - Updating: Unslated judicial candidates file lawsuit against Marion County election boards

Updating this entry from earlier today, here is the Marion County Election Board resolution issued this morning. Attorney Paul Ogden, one of the five candidates bringing the action, comments:

The Election Board said the only thing we can get is name and address. Everything else is “confidential.” The slated candidates meanwhile get name, address, voting history, date of birth, gender, telephone number, email, voter ID number and date of registration. They get it from the state party but it originates at the county level.

Of course with only the name and address of the registered voters, we have no chance of targeting our own party’s voters to beat the slate.

The Circuit Court's hearing on the Plaintiffs’ Emergency Request for Preliminary Injunction is set for 1 p.m. today.

Posted by Marcia Oddi on Friday, April 20, 2012
Posted to Indiana Government

Ind. Decisions - More on recent a tax court decision

Indiana Legislative Insight's April 23rd issue ($$) includes this item:

Well, it's not only Indiana Department of Revenue information technology and bean-counting personnel who are taking a hit from other top state officials. Add IDOR attorneys to the list of those being rapped by the powers that be. We've told you in these pages (and in much more detail in our sister newsletter, INDIANA GAMING INSIGHT) about the General Assembly seeking to have the Office of the Attorney general take over representation of the State in a specific tax case lost by IDOR in federal bankruptcy court and now on appeal (and OAG assuming that representation even after the bill in question failed due to other components). And last week, Indiana Tax Court Judge Martha Wentworth issues a ruling in Utilimaster Corp. v. Indiana Dept. of State Revenue, No. 71T10-1008-TA-43 [ILB summary here], that slams IDOR's legal team.

The matter came before the Tax Court on Revenue's motion to disqualify Utilimaster's attorneys pursuant to the Advocate-Witness Rule (a professional conduct rule), but Judge Wentworth saw right through the ploy in her 11-page opinion. Delivering a stinging rebuke to IDOR, she writes "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."

Posted by Marcia Oddi on Friday, April 20, 2012
Posted to Ind. Tax Ct. Decisions

Courts - "Judges Drive Truck Through Loophole in Supreme Court GPS Ruling"

Kim Zetter reports today in a long story in Wired's "Threat Level" that begins:

A federal judge in Iowa has ruled that evidence gathered through the warrantless use of covert GPS vehicle trackers can be used to prosecute a suspected drug trafficker, despite a Supreme Court decision this year that found such tracking unconstitutional without a warrant.

U.S. District Judge Mark Bennett in Sioux City ruled last week (.pdf) that the GPS tracking evidence gathered by federal DEA agents last year against suspected drug trafficker Angel Amaya, prior to the Supreme Court ruling, can be submitted in court because the agents were acting in good faith at the time. The agents, the judge said, were relying on what was then a binding 8th U.S. Circuit Court of Appeals precedent that authorized the use of warrantless GPS trackers for surveillance in Iowa and six other states.

It’s the third of such “good faith” rulings by federal court judges in the wake of the recent and historic Supreme Court decision, all of which illustrate that the Supreme Court ruling can be easily skirted by law enforcement agents and prosecutors who work in circuit court regions where it was previously legal to use the devices without a warrant.

Legal experts say the “good faith” exception, which comes out of another court ruling last year, has created a mess of the Supreme Court’s GPS decision.

“[I]t is a bit of an end-run around for law enforcement,” says Hanni Fakhoury, staff attorney for the Electronic Frontier Foundation. “And it leads to disparate results because whether [GPS evidence] gets suppressed or not depends on what the law of the circuit was prior to Jones.”

Circuit courts in the 7th (covering Illinois, Wisconsin and Indiana), 8th (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) and 9th (covering Alaska, Arizona, California, Guam, Hawaii, Idaho, the Mariana Islands, Montana, Nevada, Oregon and Washington) all ruled prior to the Supreme Court case that warrantless GPS tracking was legal.

Posted by Marcia Oddi on Friday, April 20, 2012
Posted to Courts in general

Ind. Decisions - "Is it a motor vehicle, or simply a motorized bike? For suspended drivers who get caught driving one, it could mean going to jail."

This morning at 9:30 the Supreme Court will hear oral argument in the case of Michael J. Lock v. State of Indiana. In a rare "road trip" for this Court, the event will take place at Martin University, on the city's northside.

The headline above is a quote from Sandra Chapman's story last evening at WTHR 13. From the story:

INDIANAPOLIS -

13 Investigates first uncovered the debate over habitual traffic offenders getting back on the road on mopeds. Now the Indiana Supreme Court is hearing arguments about the state's loophole on Friday.

It's a case creating confusion for both police and suspended drivers. One of the lowest powered two-wheelers on the road is heading to Indiana's highest court.

The debate: Is it a motor vehicle, or simply a motorized bike? For suspended drivers who get caught driving one, it could mean going to jail.

"It's 49cc, less than 2 horsepower, maximum speed of 25 mph on a level ground, and that's it. If you're doing 26 miles per hour, you're busted," said Mike Tockey, a well known westside moped dealer who has pushed for tougher laws.

Tockey believes 26 mph is the cut-off speed for enforcement. But not so fast. Police agencies across the state often interpret the law differently. * * *

That's what Michael Lock thought too. Friday his case will be argued before the Indiana Supreme Court.

In 2009, he was arrested and convicted of driving while suspended after a State Trooper caught him and his 49cc Yamaha Zuma topping 43 mph on U.S. Highway 24.

But last year, the Indiana Court of Appeals overturned his conviction.

Judge Melissa May writes:

"Lock argues the State did not prove he operated a motor vehicle, because his Zuma is a motorized bicycle, which...is exempt...We agree the State did not prove the Zuma was a motor vehicle, however, neither does the record before us permit us to hold the Zuma is a motorized bicycle."

The problem is Indiana's law. It's unclear and outdated.

Indiana lawmakers had a chance to clarify the law this past session, but didn't get it done.

Maureen Hayden of CNHI had this story yesterday in the New Albany News & Tribune. Some quotes:
State law prohibits motorists with suspended driving privileges from getting back on the road, but an Indiana man is arguing that the mo-ped he rode down a state highway at 42 mph isn’t covered by the law.

His argument, disputed by police and prosecutors, is the basis for a case that the Indiana Supreme Court is scheduled to take up Friday.

The court’s decision either way is likely to affect the thousands of Hoosiers who drive mo-peds, scooters and other motor bikes that fall into a murky area of the law. And it will likely trigger some kind of legislative action to ramp up regulations on a largely unregulated form of transportation. * * *

Under current Indiana law, people who ride mo-peds and scooters don’t need a driver’s license to do so. But the law is only supposed to apply to small-engine, low horse-power vehicles with design speeds no greater than 25 mph.

Lock’s mo-ped fit the first two criteria, but he was clocked driving 42 mph. As police and prosecutors argue: What Lock was riding can’t possibly be exempt from the law. * * *

Among those who plan to attend is state Rep. Milo Smith, a Republican from Columbus who’s been pushing his legislative colleagues for the past four years to make mo-peds and scooters subject to many of the same rules as cars and motorcycles. Currently, the law doesn’t require those vehicles to carry license plates, be registered with the Bureau of Motor Vehicles, or be operated by a licensed and insured driver.

He said Indiana law has failed to keep up with the rise in the number of mo-peds and scooters on Indiana roads.

“If gas climbs to $5 a gallon, we’ll see a lot more of them,” Smith said.

ILB: Unfortunately, there will be no videocast of the argument today.

Posted by Marcia Oddi on Friday, April 20, 2012
Posted to Indiana Decisions

Ind. Decisions - "Captured Hammond fugitive can't appeal murder conviction"

Yesterday's COA opinion in Linda G. Darby v. State of Indiana (ILB summary here) is the topic of a brief story today in the NWI Times by Dan Carden. Some quotes:

A Hammond murderer who escaped from prison and spent 35 years on the lam is not entitled to appeal her conviction, the Indiana Court of Appeals ruled Thursday. * * *

She changed her name and hid in Pulaski, Tenn., until she was captured by Indiana authorities in 2007 and returned to prison.

Darby asked the appeals court for permission to appeal her murder conviction, arguing every defendant is constitutionally entitled to at least one appeal.

In a 3-0 decision, the appeals court ruled the right to appeal is not absolute and may be waived because of failure to follow procedures or the defendant's actions.

The court said Darby is not entitled to an appeal because she missed the original deadline to file her notice of appeal and her escape prevented her attorney from filing a belated appeal.

Posted by Marcia Oddi on Friday, April 20, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Legislative Study Panels Examine Issues in Advance of The 2013 Session"

Here is a good advance look at the legislative studies expected between now and November 2012, written by Libby Cierzniak - Partner, Faegre Baker Daniels LLP, and published at Inside Indiana Business. It looks like there will be a lot of complex education, tax and fiscal, safety, heath, environmental, etc. issues on the agenda, although much of this will not be finalized until the Legislative Council meets "in May or June to select study topics and establish study committees."

Posted by Marcia Oddi on Friday, April 20, 2012
Posted to Indiana Government

Ind. Gov't. - Still more on: Unslated judicial candidates file lawsuit against Marion County election boards

Updating the April 13th ILB entry, Greg Bowes last evening emailed this information:

In response to the lawsuit filed by five candidates, the Marion County Election Board is holding a meeting on Friday, April 20, 2012, at 10 a.m. in the City-County Building, Room 107, for the purpose of considering a policy directing the Marion County Board of Voter Registration on what computerized information to release to the public.

By agreement of the parties, the Marion County Circuit Court stayed its proceedings in the lawsuit to give the Election Board a chance to adopt a policy. The Circuit Court has scheduled a hearing on the Plaintiffs’ Emergency Request for Preliminary Injunction for 1 p.m. on April 20, 2012 in the Circuit Court.

Posted by Marcia Oddi on Friday, April 20, 2012
Posted to Indiana Government

Thursday, April 19, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)

For publication opinions today (2):

In Anthony Hogan v. State of Indiana, a 19-page opinion, Judge Crone concludes:

Hogan is correct that his statement could not be used unless it was taken voluntarily. However, he has not presented any evidence that his statement was involuntary; therefore, he has not established ineffective assistance of trial or appellate counsel in regard to this issue. Hogan is also correct that an advisement of his right to a jury trial on the habitual offender and his personal waiver should have been made on the record. However, he has failed to show that he was prejudiced by this and therefore has failed to establish ineffective assistance of trial or appellate counsel. Hogan has failed to show that trial counsel’s decision not to tender an instruction on a lesser-included offense was an unacceptable strategy and has likewise failed to show that appellate counsel should have raised the issue as fundamental error. Any additional claims that Hogan may have made are waived because, despite our order to include his post-conviction petition in his appendix, he has failed to do so, and we are unable to determine what those additional claims might be. Therefore, we affirm the judgment of the post-conviction court.
In Linda G. Darby v. State of Indiana, a 6-page opinion, Judge Darden writes:
Linda G. Darby appeals the trial court’s denial of her petition to file a belated notice of appeal. We affirm. * * *

Darby was a fugitive well after the thirty-day period in which she was required to file the documentation for appeal. Under this circumstance, our supreme court has held that a trial court acts properly in denying a defendant’s petition for a belated appeal. * * *

Under the circumstances of this case, Darby has not shown that the failure to file a timely appeal was “not due to the fault of the defendant.” As a result, we cannot find that the trial court abused its discretion when it denied her petition for a belated appeal of her conviction.

NFP civil opinions today (1):

In Re the Term. of the Parent-Child Rel. of: Al.S. & A.S. and C.S. v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (1):

Berry Moss v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 19, 2012
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from April 17th, Adam Liptak of the NY Times run a story yesterday on the Filarsky v. Delia decision, headlined "Justices Cite Protections for Lawyers in Inquiries." Here is a quote:

The Supreme Court reversed that decision in an opinion by Chief Justice John G. Roberts Jr. Much of his opinion was devoted to a historical inquiry about the protections available to people who had worked for the government when the 1871 law under which Mr. Delia sued, known as Section 1983, was enacted.

Part-time government workers were commonplace then, Chief Justice Roberts wrote, citing as examples an owner of a general store who also ran the post office, a ferry operator who also collected harbor fees and Abraham Lincoln, who occasionally conducted criminal prosecutions while in private practice.

Those examples demonstrated, Chief Justice Roberts concluded, that the drafters of Section 1983 had not meant for protections to vary depending on whether the government work at issue was full time or not.

“New York City,” he wrote, “has a Department of Investigations staffed by full-time public employees who investigate city personnel, and the resources to pay for it. The City of Rialto has neither, and so must rely on the occasional services of private individuals such as Mr. Filarsky.”

“Treating the two approaches differently,” he continued, could give rise to “unwarranted timidity” from part-time workers and the possibility that “the most talented candidates will decline public engagements.”

Posted by Marcia Oddi on Thursday, April 19, 2012
Posted to Courts in general

Ind. Courts - "Movement of Bisard blood sample violated court order"

That is the heading of WRTV's story last evening by Richard Essex and Jeremy Brilliant. It follows on this ILB entry from April 13th, headed "Bisard case: New DNA, alcohol tests ordered - Ruling is victory for prosecutors in drawn-out case." From the WRTV story:

The movement of a blood sample from IMPD Officer David Bisard that ultimately led to the resignation of the police chief violated a court order.

All blood evidence is stored in the basement of the City County Building downtown. It is the only place equipped with refrigerators. The court order regarding the evidence stated that the blood samples have to be secured and maintained.

There is no question on how procedures are to be followed, directions are plastered on the wall of the property room where the samples were supposed to be kept. But someone took the vials from an evidence refrigerator halfway across town to a regular, unrefrigerated storage area at the police annex on Post Road.

"We don't know if that was something intentional or some massive mistake. We don't know," said Marion County Prosecutor Terry Curry.

Here, from the IndyStar yesterday, is a statement from the prosecutor, headed:
"Prosecutor: Moving Bisard evidence should not affect case."“During the process of requesting permission to test the second vial of blood drawn from Officer David Bisard, our office became aware that this sample had been moved from a refrigerated environment in the Indianapolis Metropolitan Police Department property room to an unrefrigerated environment at the property room annex. This office did not authorize or order the second vial of blood to be moved.

We are currently working with an independent lab to clarify the implications of testing the blood from the second vial, and do not yet know if or how the blood was affected. We do not know the events that transpired causing Officer Bisard’s blood to be moved while in IMPD’s custody, and we are exceedingly concerned that it occurred. I met with the victims and victims’ families this morning at 11a.m. to inform them.

At this time, we do not believe these developments will negatively impact the prosecution of this case. Regardless of these developments, this office is continuing to move forward with the prosecution against Officer Bisard.”

Posted by Marcia Oddi on Thursday, April 19, 2012
Posted to Indiana Courts

Ind. Courts - "Judge hears arguments on how much former prosecutor can help in David Camm murder case"

Harold Adams reports today in the Louisville Courier Journal:

The special judge presiding over the third murder trial of David Camm said Wednesday he will decide “as quickly as I can” on how much involvement Floyd County Prosecutor Keith Henderson may have in the proceedings.

Judge Jonathan Dartt heard arguments from Camm attorney Stacy Uliana and Special Prosecutor Stanley Levco on the defense team’s motion to prohibit Henderson from helping Levco with the case. * * *

Henderson was removed from the case last November by the Indiana Court of Appeals, which agreed with a defense claim that his efforts to write a book about the case while a conviction of Camm was still on appeal amounted to a conflict of interest.

After Levco was appointed to take over the case, Dartt instructed Henderson to hand the case file over to the new prosecutor and to “fully cooperate in his review and investigation of the file and this case.”

Camm’s attorneys have objected, saying that allowing Henderson to do anything more than hand over the files to Levco would inject his conflicted interest into the proceeding.

Doing more than handing over the case file would go against the purpose of the appeals court ruling, Uliana said. “The more Mr. Levco feels he has to rely on Mr. Henderson, the more the conflict,” she said.

Levco countered that “it almost doesn’t make logical sense … that I couldn’t review witnesses” with Henderson and discuss insights with him. “I don’t believe I should be prohibited from talking to him,” Levco said. He also said any consultation with Henderson would be minimal.

WAVE's story is headed "Camm’s defense argues Henderson could 'infect' new prosecutor."

And, in an April 6th story by Maureen Hayden in the News & Tribune on the "computer error at the state revenue department," this information:

Floyd County will receive $2,739,253 due to the state’s error. Floyd County Council President Ted Heavrin was pleasantly surprised by the announcement. Floyd County has been bracing for a third David Camm murder trial which officials said will cost about $1 million.
Here is a very long list of earlier ILB entries on David Camm.

Posted by Marcia Oddi on Thursday, April 19, 2012
Posted to Indiana Courts

Courts - 7th Circuit judges rank very high in one informal short list of nation's top judges

Circuit Splits has a post today headed "Ross Guberman's Short List of the Nation's Top Judges (Part 2 of 3)." A quote:

Here in the States, I will include many familiar names on the Supreme Court, both past and present. On the lower courts, I will likely include the Ninth Circuit’s Chief Judge Kozinksi as well as Judges Posner and Easterbrook on the Seventh Circuit and their colleague Judge Diane Wood. I have also become a fan of Judge Neil Gorsuch on the Tenth Circuit, and of the late Richard Arnold of the Eighth Circuit.

Posted by Marcia Oddi on Thursday, April 19, 2012
Posted to Courts in general

Wednesday, April 18, 2012

Ind. Gov't. - "Counties Reveal Consequences Of State Budget Error"

Brandon Smith of Indiana Public Broadcasting has a long story today about how the state budget error impacted the counties. Interesting.

Posted by Marcia Oddi on Wednesday, April 18, 2012
Posted to Indiana Government

Ind. Law - "Connecticut woman's fight to keep her husband's remains buried in the back yard of her home was heard before the Conn. Supreme Court"

The ILB had several Indiana-based entries last year under the heading "State law blocks backyard burial plans," with the most recent, dated Nov. 7, 2011, headed "Loved ones reburied Milo Blaker Sunday afternoon, there beneath a hickory tree on the hill visible from the kitchen window of the house he shared with his wife Betty for half a century."

Today the Hartford Courant is reporting on a similar situation, but theirs was not amicably resolved at the local level.

The report includes a video showing the 8-acre back yard. A few quotes from the long story by Hilda Munoz:

A Chester woman's fight to keep her husband's remains buried in the back yard of her South Wig Hill Road home was heard before the Supreme Court on Tuesday.

Elise Piquet believes she has the right to leave her husband in place and for her ashes, when the time comes, to be buried next to him, her lawyer, William Gallagher, argued on Tuesday.

In 2007, she asked a Superior Court judge to declare her right to use the residential property for her husband's burial and her own burial after an exchange of letters with town officials, who said she had violated local zoning regulations.

The judge ruled in favor of the town, and Piquet appealed. The state appellate court reversed the lower court's decision.

The Supreme Court will now consider whether the appellate court's decision was appropriate.

John Bennet, attorney for the town of Chester, argued on Tuesday that Piquet needed a zoning permit to have a burial on private property, but she didn't get one. * * *

Outside of the court house on Tuesday, Piquet said it never occurred to her to seek a permit. The home was built in 1770 and other people have been buried on the property, she said.

"I just thought it was a matter of historical precedent and that I could just do it," she said. "I didn't mean to break any rules, but I didn't know there were any."

The ABA Journal has collected some additional links.

Posted by Marcia Oddi on Wednesday, April 18, 2012
Posted to Indiana Law

Courts - Another grammar lesson today, but this time from the SCOTUS

The ILB's first post this morning was about a news story "corrected" by the sports copy desk.

Now Joe Palazzolo of the WSJ Law Blog has a good story about an opinion yesterday by Supreme Court Justice Elena Kagan, which turned on the meaning of "not an".

The case is Caraco Pharm. v. Novo Nordisk.

Posted by Marcia Oddi on Wednesday, April 18, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)

For publication opinions today (2):

In Todd Walters and Matenia Walters v. Aaron Austin and Herman & Goetz, Inc., a 6-page, 2-1 opinion, Judge Najam writes:

Todd and Matenia Walters (collectively “the Walterses”) appeal the trial court’s judgment on a jury verdict in favor of Aaron Austin and his employer, Herman & Goetz, Inc., (collectively “Defendants”) on the Walterses’ complaint for damages arising from a multi-vehicle accident. The Walterses present several issues for review. However, because we determine that we do not have jurisdiction, we do not reach the merits of this appeal. We dismiss. * * *

The Defendants contend that the appeal should be dismissed because the notice of appeal was filed thirty-one days after the trial court denied the first motion to correct error. The Walterses maintain that the relevant date for determining the timeliness of the notice of appeal is May 24, 2011, the date the trial court denied the amended motion to correct error. In support, they assert that the amended motion to correct error was “not filed in an effort to extend the filing deadline [for the notice of appeal] nor was it an attempt to ask the Trial Court to reconsider the motion as the Amended Motion to Correct Errors was filed before counsel for plaintiff[s] was notified that the original Motion to Correct Errors had been denied.” Response to Motion to Dismiss at *2. Therefore, the Walterses believe that they timely filed their notice of appeal. We cannot agree.

Indiana Trial Rule 53.4 provides in relevant part that repetitive motions “shall not delay the trial or any proceedings in the case, or extend the time for any further required or permitted action, motion, or proceedings under these rules.” We find that rule applicable here. The Walterses’ amended motion to correct error was nearly identical to the original motion to correct error, amending only non-substantive, typographical and grammatical errors in the original motion. Further, the amended motion was to “relate back” to the original motion. In effect, the amended motion was merged with the original motion, and the denial date of the original motion was May 23. We conclude that the amended motion to correct error was a repetitive motion and, therefore, the filing of the amended motion did not change the date for filing the notice of appeal. * * *

Dismissed.
RILEY, J., concurs.
DARDEN, J., dissents with separate opinion. [that concludes] The Walterses filed both of their motions to correct error well within the time period to do so; filed the amended motion to correct error only three days after filing the original motion; and filed the May 23 motion prior to receiving notice that the trial court had denied the May 20 motion. The Walterses clearly did not file the May 23 motion in an effort to extend the time for filing their notice of appeal. Accordingly, I do not believe that the interest of justice is served by treating the May 23 motion as a repetitive motion. I therefore would review this case on the merits.

In Alebro, LLC v. Review Board of the Indiana Department of Workforce Development and Jason Scheidell , a 13-page opinion, Judge Vaidik writes:
Alebro, LLC, appeals the decision of the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (“Review Board”) granting its terminated employee, Jason Scheidell, unemployment benefits. Alebro argues that the Review Board erred in failing to admit documents as evidence at the hearing, used the wrong burden of proof, and erred in allowing Scheidell to rebut Alebro’s prima facie case of just cause for termination by arguing instead that he had committed a different terminable offense. We hold that if an employee’s explanation for the behavior that led to his termination is another terminable offense, that provides just cause for termination. We therefore reverse. * * *

BRAFORD, J., concurs.
CRONE, J., concurs with separate opinion. [which begins, at p. 10 of 13] I fully concur in the majority’s reasoning and result, but I write separately to express my disagreement with its disclosure of the full names of both the unemployment claimant and the employer in what I believe to be a contravention of Indiana law. * * *

Until the relevant provisions of Administrative Rule 9(G) are amended by our supreme court, I intend to continue to use initials in unemployment cases that I write.[1]
_________
[1] In the even more recent case of Chrysler Group, LLC v. Review Board of Indiana Department of Workforce Development, 960 N.E.2d 118 (Ind. 2012), our supreme court elected to identify the individual claimant by initials but identified the employer by name because it saw “little merit in attempting to conceal the identity of a global automotive manufacturer that faced a massive economic collapse in 2008 and whose initials are ‘C.G.’” No such considerations are at play here.

NFP civil opinions today (4):

In Re the Adoption of K.B.M. and L.B.M.; T.M. v. R.P.F. (NFP)

In Re the Paternity of K.S.; J.S. v. M.M. (NFP)

Margaret M. Hammond v. Review Board of the Indiana Dept. of Workforce Development and Porter County Commissioners (NFP)

Huntington Copper, LLC v. Conner Sawmill, Inc. (NFP)

NFP criminal opinions today (10):

Chad Jeremy Orme v. State of Indiana (NFP)

Justin A. Staples v. State of Indiana (NFP)

Dennis Mikel v. State of Indiana (NFP)

Ramon Crawford v. State of Indiana (NFP)

Jason Myers v. State of Indiana (NFP)

Derrick Mays v. State of Indiana (NFP)

Ronald Edward Madison, Jr. v. State of Indiana (NFP)

Brandon Ray Carter v. State of Indiana (NFP)

Jason A. Reber v. State of Indiana (NFP)

Michael Jackson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 18, 2012
Posted to Ind. App.Ct. Decisions

Law - "100 Appellate Law Twitter Feeds to Follow"

From the blog Circuit Splits. Alphabetical. ILB is #44.

Posted by Marcia Oddi on Wednesday, April 18, 2012
Posted to General Law Related

Ind. Gov't. - "Audit may find more revenue errors, but Daniels says they will be smaller"

Eric Bradner has an interesting story today in the Evansville Courier & Press, reporting Governor Daniels' comments on the recent Dept. of Revenue errors.

Posted by Marcia Oddi on Wednesday, April 18, 2012
Posted to Indiana Government

Courts - Still more on "Keep Your Hands off My Briefs: Lawyers Sue Westlaw, Lexis"

Updating this ILB entry from Feb. 12, 2012, see this column by Susan Hackett in the ABA "Legal Rebels" blog. The heading: "If Lawyers Sell Legal Expertise to Clients, Who Owns the Resulting Product?."

Posted by Marcia Oddi on Wednesday, April 18, 2012
Posted to Courts in general

Ind. Decisions - "$1 million judgment appealed: Ex-wife of former Wabash Center CFO fights ruling"

Sophia Voravong reports today in the Lafayette Journal Courier in a story that begins:

The ex-wife of former Wabash Center Inc. chief financial officer Stephen P. McAninch is appealing a judge’s ruling that ordered her to turn over “dirty money” that McAninch stole from his employer over an 18-year period.

On March 19, Tippecanoe Superior Court 2 Judge Thomas Busch entered a $1,037,489 judgment against Connie Landers on grounds that she knew about her ex-husband’s thefts while they were married and used it to her advantage during divorce proceedings.

Landers’ attorney, Matthew Laydon, said an appeal was filed Monday. It now will be up to the Indiana Court of Appeals to decide whether Landers is financially obligated to return money to Wabash Center, a Lafayette-based nonprofit that serves individuals with development disabilities.

Posted by Marcia Oddi on Wednesday, April 18, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Update on David Lott Hardy, fired chairman of the Indiana Utility Regulatory Commission

See brief Indianapolis Star item here, Hardy has filed motion to dismiss indictment, arguments scheduled for June 11th before Judge James Osborn.

Posted by Marcia Oddi on Wednesday, April 18, 2012
Posted to Indiana Government

Not law - but worth a look ...

Sports copy editor's "correction" causes reporter grief. See here.

Posted by Marcia Oddi on Wednesday, April 18, 2012
Posted to General News

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

Monday, April 16, 2012

Stage Collapse - Indiana attorney blames Sugarland for stage collapse deaths

From WGN's story today, which includes links to three videos:

A northwest Indiana attorney is blaming the country duo Sugarland for the deaths of 7 and injuries of dozens of others at the Indiana State Fair last summer.

Ken Allen released new video from a deposition of Jennifer Nettles and Kristian Bush, Sugarland's lead singers.

Posted by Marcia Oddi on Monday, April 16, 2012
Posted to Stage Collapse

Ind. Decisions - Transfer list for week ending April 12, 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 12, 2012. It is one page (and 10 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, April 16, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court sets oral argument date for Garwood case

The Supreme Court has set oral argument for Thursday, May 10, 2012 at 9:00 AM in Virginia Garwood and Kristin Garwood v. Indiana Department of State Revenue, a case where the Court on March 16th granted a petition for review of a Tax Court decision by Judge Wentworth. 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."

Posted by Marcia Oddi on Monday, April 16, 2012
Posted to Upcoming Oral Arguments

Ind. Decisions - "Wal-Mart ruling that quashed many class actions helps bolster Merrill Lynch broker's case: Victory in federal appeals court surprises many legal experts"

A long story today by Ameet Sachdev of the Chicago Tribune about a 7th Circuit decision from Feb. 24, 2012. A quote:

A three-judge appellate panel unanimously sided with McReynolds on Feb. 24. Judge Richard Posner, who wrote the opinion, said challenging the Merrill policies in a class action was not forbidden by the Wal-Mart case.

According to Posner, "permitting brokers to form their own teams and prescribing criteria for account distributions that favor the already successful — those who may owe their success to having been invited to join a successful or promising team — are practices of Merrill Lynch, rather than practices that local managers can choose or not at their whim."

Posted by Marcia Oddi on Monday, April 16, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

Whiskey Barrel Planters Co., Inc., n/k/a Diggs Enterprises, Inc., Robinson Family Enterprises, LLC, et al. v. American Gardenworks, Inc., and Millennium Real Estate Investment, LLC, a 23-page opinion by Judge Darden involving contract interpretation, concludes:

The trial court erred in denying Whiskey Barrel’s motion for partial summary judgment on Counts III and VII. The trial court also erred in determining that Ralph and Ann’s personal property was transferred to AGW under the Agreement and that the property had been abandoned by them. Finally, the record is insufficient to determine whether the trial court properly exercised its discretion in determining the amount of the attorney fee award and costs to AGW.

Reversed and remanded for further proceedings consistent with this opinion.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Anthonly L. Cole v. State of Indiana (NFP)

Michael Earls v. State of Indiana (NFP)

Jason Russell Richardson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 16, 2012
Posted to Ind. App.Ct. Decisions

Stage Collapse - "The Indiana State Fair Stage Collapse: The Two Recommendations That Matter"

From a Houston Chronicle blog, Climate Abyss (Weather and climate issues with John Nielsen-Gammon, who is the Texas State Climatologist and a Professor of Atmospheric Sciences at Texas A&M University), this post on April 12, 2012, following the release of the two engineering reports last week. A few quotes:

The news coverage I’ve seen so far completely misses one of the two key issues. Prominently featured, and a key element of the collapse, is the fact that the stage rigging, with all the concert equipment attached to it, could not withstand winds of 20-40 mph. The structure began collapsing when winds exceeded 33 mph, and wind gusts eventually maxed out at 59 mph. So the no-brainer recommendation (#1) is: build robust structures during severe weather season, even if they’re only temporary, if their collapse would be catastrophic. * * *

[T]he other recommendation that matters, here quoted verbatim from the Witt report: "The Indiana State Fair Commission should deploy a private weather forecasting service during the State Fair."

This applies, not just to Indiana, but to all events that involve potential exposure of large numbers of people to the consequences of severe weather. Private meteorologists can take the observations and general warning information provided by the NWS and match it up with the potential failure points and vulnerabilities of the event. While the NWS is worrying about severe weather across numerous counties, the private meteorologist can focus on one specific location and the specific types of severe weather that could cause problems. In turn, the event operators must define the weather criteria for taking action and then not relax those criteria when economic issues intervene. Are you listening, event operators?

Posted by Marcia Oddi on Monday, April 16, 2012
Posted to Stage Collapse

Ind. Gov't. - Underneath the $526 million error "are hundreds of thousands of individual financial transactions and decades of statutes and politics."

Here are stories updating the April 12th ILB entry headed "Tomorrow is first meeting this year of State Budget Committee ...."

Underneath the $526 million error "are hundreds of thousands of individual financial transactions and decades of statutes and politics." So writes Tom LoBianco of the AP in a good story today, here in the Indianapolis Star. See also this story by LoBianco here in the April 14th Fort Wayne Journal Gazette. The two stories together give a good overview of the issues.

From a $$ story in the Bloomington Herald-Times this weekend by Dawn Hewitt:

State Rep. Peggy Welch, D-Bloomington, met with the State Budget Committee Friday in Madison. Welch serves as an alternate member on the committee.

Two items on the agenda for discussion were the report following an internal review of the December discovery of a $320 million accounting error in the Indiana Department of Revenue, and the discovery of a programming error that inappropriately withheld $205 million in local option income tax funds from counties, announced last week.

Democrats on the budget committee in December had called for an external review of the “found” $320 million, but the motion failed.

“There were some there who thought there would be a lot of defensiveness coming from the state budget agency and Republican members of the budget committee,” Welch said, but that was not the case.

“It was a very congenial and warm discussion. There was no defensiveness, but, like, ‘we’ve got to fix this,’ and ‘how are we going to do this?’” she said.

The budget committee passed a motion calling for an external review of the two Department of Revenue problems.

“Everyone was on the same page that we need an external audit,” Welch said by telephone Friday.

“We strongly recommend that the State Budget Agency determine the parameters of the external review or audit,” she said, adding that she hopes members of the Legislature and their staff will be included in the process.

She said the State Budget Committee, which usually meets every two months, will convene again in May to hear the recommendations of the State Budget Agency and legislative staff on moving forward with an external audit.

“It’s important to get this done as soon as possible,” Welch said, since revenue forecasting will start in the fall.

See also this special to the Indianapolis Star from reporter Lesley Weidenbener. Some quotes:
A key figure in the Daniels administration said that ongoing examination is likely to turn up additional problems.

"There are indications there could be other areas" with mistakes, said Adam Horst, director of the Office of Management and Budget, which oversees the revenue department. "But it's too soon to know for sure yet. It's important we wait until the end to see what the results are."

The State Board of Accounts began reviewing the state income tax transactions after Daniels announced in December that a programming error had left $320 million in corporate income taxes sitting unused in an account. State examiners are now working to reconcile what Hoosiers and businesses have paid into the Department of Revenue over the past decade with what's been distributed to state and local governments.

The work could take weeks or months to finish, Horst said.

Then Horst announced a second major error last week. He acknowledged the state had shorted local governments $206 million in income tax payments over 14 months. That discovery led Daniels and GOP leaders to call for an outside audit, something Democrats had been pushing for months.

On Friday, the State Budget Committee -- a five-member group that includes Horst and four legislative fiscal leaders -- took the first steps toward that audit. The group asked Horst to begin collecting information from companies interested in conducting the audit and then bring the information back to the committee in May, where members hope to hire a company for the job.

"Legislative leaders have come around to the idea of an independent audit, but we need to make it a reality before the next budget cycle," said Sen. Karen Tallian, D-Portgage, said after the meeting. "This isn't money between the cushions. We're talking about over a half billion dollars in mishandled taxpayer money."

Lawmakers said they want the audit to include a look at the Department of Revenue's information technology work as well as its operations. Rep. Bill Crawford of Indianapolis, the ranking Democrat on the House Ways and Means Committee, said the audit needs to be thorough and take place soon.

"There could be mistakes occurring right now that have consequences," Crawford said. "We agree that this was not intentional. But the consequences -- whether this was intentional or unintentional -- are severe and we need to know what's happening."

Fiscal leaders said they also want to consider whether the state should implement systems for other types of regular internal and external audits. Currently, the State Board of Accounts conducts only financial audits. It does not consider operational, programming, compliance or efficiency issues, said state examiner Bruce Hartman.

Posted by Marcia Oddi on Monday, April 16, 2012
Posted to Indiana Government

Ind. Gov't. - Still more on: Unslated judicial candidates (and others) file lawsuit against Marion County election boards

Updating earlier ILB entries, including this one linking to the complaint, the Indianapolis Star editorial today is headed "Give outsiders what insiders have." Some quotes:

Political parties have the right to anoint favored candidates in primary elections, even if the voting public has the right to feel unfairly limited in its choices.

Where the prerogative ends is where slated candidates enjoy an advantage courtesy of the public.

That is the heart of a matter involving five unslated candidates for office who are asking the Marion Circuit Court to grant them access to the county's voter registration database.

The candidates -- three for judgeships and two for state representative, one Republican and four Democrats -- contend that the Marion County Voter Registration Board has dragged its feet on their request for access because it is beholden to the parties, which appoint board members.

Time is of the essence for using the database to target likely voters for the May 8 primary. Slated candidates already have the data through their parties, which don't share with others.

The unslated candidates point out that the database is a public record compiled at taxpayer expense. The state Public Access Counselor has informally sided with them, but has advised that the Marion County Election Board adopt a policy ordering the registration board to act.

Posted by Marcia Oddi on Monday, April 16, 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 15, 2012:

From Saturday, April 14th, 2012:

From Friday afternoon, April 13th, 2012:

Posted by Marcia Oddi on Monday, April 16, 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 4/16/12):

Friday, April 20th

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

Webcasts of Supreme Court oral arguments are available here.


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

Monday, April 16th

Tuesday, April 17th

Thursday, April 19th

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

Monday, April 23rd

Wednesday, April 25th

Thursday, April 26th

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 16, 2012
Posted to Upcoming Oral Arguments

Sunday, April 15, 2012

Courts - "University of Michigan law professor is running for Michigan Supreme Court. All three Democratic nominees are women."

Jo Mathis has this story in the Washtenaw County Legal News (for more on the Michigan publication, check here). Some quotes:

University of Michigan law professor Bridget Mary McCormack hopes voters will see the wisdom of choosing a Michigan Supreme Court justice who hails from academia rather than court.

While teaching law for 16 years, she's helped students critique appellate decision-making, and in the clinical programs she's started, the students practice in trial courts.

"So I don't feel intimidated by the job itself," said McCormack, sitting in her comfortable, light-filled Ann Arbor home.

It's been about a year since McCormack, 45, started talking to other law professionals about the possibility of running for Supreme Court. After so much positive feedback, she figured she'd give it a try.

McCormack said the faculty was once a common path to the state supreme court, and many Supreme Court justices through the years had not previously served as a judge. That includes recent appointee, Elena Kegan, who was a professor at Harvard Law School before Barack Obama appointed her first Solicitor General and then Supreme Court justice.

Last month, state Democrats endorsed McCormack and two other women--Wayne County Circuit Judge Connie Kelley and Oakland County District Judge Shelia Johnson--for the Supreme Court race to be decided in November.

Justices Stephen Markman and Brian Zahra will run as incumbents, and Republicans will nominate their candidates in August.

Three seats will be filled.

Posted by Marcia Oddi on Sunday, April 15, 2012
Posted to Courts in general

Environment - "Indiana works to protect underwater treasures"

Joyce Russell of the NWI Times has two interesting stories today on Lake Michigan shipwrecks.

The first, headlined above, begins:

Under the sometimes murky waters of Lake Michigan lies a mostly unexplored layer of Northwest Indiana history.

The lake is home to dozens of shipwrecks, each telling a story.

"They tell us a lot of things. They show us about our culture, commerce and about early transportation," said Rick Jones, state archaeologist with the Indiana Department of Natural Resources.

Looking at the Great Lakes as a whole, there are some 5,000 shipwrecks, said Brad Bumgardner, interpretive naturalist with the Indiana Dunes State Park.

"That's more than in the entire Bermuda Triangle," Bumgardner said.

About 25 percent of those shipwrecks lie within the waters of Lake Michigan.

Indiana's movement to preserve its underwater history began in the 1980s when salvagers attempted to raise the wreck of the J.D. Marshall, which sank in 1911 off the shore of the Dunes State Park. Federal and state laws followed in the 1980s, protecting the shipwrecks from salvage operations by imposing fines and imprisonment for looting and vandalism.

A second story is headed "Lake Michigan shipwrecks have tales to tell." The story lists some shipwrecks of note and includes a photo of "A map at the Michigan City Lighthouse Museum shows locations of shipwrecks in southern Lake Michigan."

All of this nautical reading started Gordon Lightfoot's "The Wreck of the Edmund Fitzgerald" playing though my mind, although that wreck occurred in 1975 on Lake Superior.

Posted by Marcia Oddi on Sunday, April 15, 2012
Posted to Environment

Law - "ABC bases ‘Scandal’ on D.C. insider Judy Smith"

So reported Neely Tucker in a lengthy March 30th story in the Washington Post. A few quotes:

This is almost beyond belief. For more than two decades, few high-profile people in Washington have been as invisible as Smith. She famously represents the well-to-do who are in high-end contretemps — Monica Lewinsky, the Chandra Levy family, Michael Vick, BP after the Gulf oil spill — and she just as famously stays off camera.

Her crisis management and communications firm, Smith & Co., is not listed in phone directories. It has no Web site. She says she has no current business cards. When you ask to meet at her office, she says she’ll come to you. When she calls you on the phone, the caller ID reads “Verizon.” When Betsy Beers, another of the co-executive producers of “Scandal,” searched the Internet for a picture of Smith before their first meeting, she found a total of one — Smith pushing a camera out of her face in a Lewinsky media scrum. * * *

Her career has spanned two tumultuous decades both in Washington and across the national stage, often at the center of white-hot scandal. She’s a lawyer (degree from American University Washington College of Law; undergrad from Boston University) and a public relations executive who once was a suit at NBC, as the senior vice president of corporate communications. It’s difficult to think of many people who have been the confidant of so many in such dire trouble for so long.

Scandal's third show will be Thursday, April 19 on ABC at 10 pm.

Posted by Marcia Oddi on Sunday, April 15, 2012
Posted to General Law Related

Ind. Gov't. - "Indiana loses as more states gamble on casino revenues: Ohio’s shiny new casinos will cut into Indiana’s take"

Maureen Hayden of CNHI's story today in the Jeffersonville News & Tribune reports that "Ohio’s [projected] windfall spells trouble for Indiana." A few quotes from the long story:

State fiscal analysts predict the arrival of casinos in Ohio will cut deeply into the competition for gambling dollars and the billion-dollar tax revenue stream that helps fund essential public services in Indiana. The Indiana Casino Association predicts a $200 million to $300 million annual loss in gross gaming revenues at state’s 13 casinos. State budget analysts, meanwhile, predict a $100 million annual loss in gaming tax revenues.

“It’s going to be a huge hit,” said state Sen. Luke Kenley, the influential chairman of the Senate Appropriations Committee and member of the State Budget Committee that has to craft a state spending plan with those dwindling dollars. “There’s no way to make up those kind of losses.” * * *

Ed Feigenbaum, publisher of Indiana Gaming Insight, tracks gaming revenues. He said the Ohio casinos will only exacerbate the trend of declining casino tax revenues for the state. He notes that in 2011, the casinos’ combined “house win” — the revenue collected at slot machines and table games minus what’s paid out to gamblers — dropped to $2.73 billion, down from about $2.8 billion in 2010.

The drop signaled the second year in row that the overall “house win” was down. More ominous is what happens if you exclude the two racinos. If you cut them out of the equation, the total win for the state’s casinos have dropped four years in row.

Given that casino taxes are the third-largest source of revenue for the state, that’s not good news.

“It’s just not sustainable as a revenue source,” said Feigenbaum.

State’s budget forecasters concur. Last year, casino and racino taxes generated $660 million for the state’s general fund. It’s expected to fall to $617 million this fiscal year and to $567 million in 2013.

Posted by Marcia Oddi on Sunday, April 15, 2012
Posted to Indiana Government

Saturday, April 14, 2012

Ind. Courts - "Two bars sued in death of Wea Ridge student"

Sophia Voravong and Mikel Livingston report today in the Lafayette Journal Courier on a Dram Shop Act "lawsuit was filed on March 23 in Tippecanoe Superior Court 1." Some quotes:

"Under Indiana law, taverns are not allowed to serve someone who is visibly intoxicated. If they do serve such a person, they can be responsible for the conduct of the intoxicated person," Merrillville-based attorney Thomas Clements, who is representing [Ebony] Knight's parents, said Friday.

"The key is the criminal case held the driver responsible. What we're trying to do here is hold responsible the people that served him," he said. * * *

A jury found [Robert V. Kirts II] guilty of OWI causing death, failure to stop after an accident causing death and failure to give notice of a serious accident. He was sentenced this past January to 22 years in prison.

Kirts was not named in the civil lawsuit by Knight's parents. As part of his sentence, Kirts was ordered to pay $7,000 in restitution, which will reimburse the family for funeral costs.

According to court documents and testimony in Kirts' criminal case, Kirts spent the afternoon of Feb. 27 at Hop's Shawnee Tavern, off Union Street in Lafayette, to watch a televised race. He had four beers between 4 and 6:30 p.m., the time the race ended and the bar closed.

Kirts then went to Champs Sports Bar on Earl Avenue, where he consumed three beers and two shots of "liquid cocaine."

Knight was hit and killed about 8:35 p.m. Though her parents lived in the Chicago area, Knight resided with cousins in Lafayette.

The family's lawsuit claims that Hop's and Champs knowingly served alcohol to a "intoxicated person" and "habitual drunkard."

Posted by Marcia Oddi on Saturday, April 14, 2012
Posted to Indiana Courts

Ind. Courts - Suit in federal court "questions the training of and standards for drug-detection dogs."

Pam Tharp has the long story in the Muncie Star-Press. A few quotes:

A federal lawsuit filed earlier this year against 50 Indiana cities, towns and counties, including the city of Muncie, questions the training of and standards for drug-detection dogs. * * *

The suit was filed by Kevin D. Miller of Schererville, who appears to be representing himself in U.S. District Court in Indianapolis. * * *

Plymouth police officer John Weir and the town's drug dog, who are at the center of the lawsuit, were trained by Vohene Liche Kennels and certified by American Working Dogs United Inc. from 2007 through 2010, the lawsuit said.

Miller was stopped by Weir during a routine traffic stop sometime during that period while driving with his wife from Munster to Fort Wayne, the lawsuit said. Weir told Miller his drug-detection dog alerted twice to the presence of drugs in the Millers' vehicle, according to court documents.

Weir "rummaged" through the Millers' personal effects and physically searched Miller's person, but no drugs, weapons or other illicit materials were found, the lawsuit said.

Posted by Marcia Oddi on Saturday, April 14, 2012
Posted to Indiana Courts

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

My post yesterday afternoon, linking to Ameet Sachdev's Chicago Law column, led to several retweets from Indiana reporters. It also resulted in the writing of at least one column in response, from one of Sachdev's colleagues at the Chicago Tribune. Op-ed columnist Eric Zorn writes:

Ameet Sachdev's Chicago Law column this morning reports that Cook County Judge Charles Burns has barred reporters from tweeting in court during the trial of William Balfour.

Balfour is charged with murdering three family members of singer and actress Jennifer Hudson, and his trial, scheduled to kick off with opening statements April 23, will be followed avidly by the national as well as local press corps.

Tweeting — posting messages to the social networking site Twitter in bursts of 140 characters or less — has become an excellent way for journalists to supplement their coverage of trials, particularly in jurisdictions that don’t allow cameras in courtrooms.

And, Burns’ fretful contention aside, it’s neither particularly distracting nor disruptive. Reporters hunch over their smartphones and quietly jab at the keys with their thumbs. The public, then, can follow the ostensibly public proceedings in close to real time — a genuine value.

Cameras in the courtroom would be far better, of course. And though I strongly favor the tasteful implementation of such technology, which has gone off with hardly a hitch in many states, I acknowledge the reservations of some judges that the use of video might intimidate witnesses and prompt histrionics from lawyers.

The column continues with a "compromise proposal," a live audio feed.

Posted by Marcia Oddi on Saturday, April 14, 2012
Posted to Courts in general

Friday, April 13, 2012

Courts - "A Cook County judge has banned reporters from tweeting inside his courtroom during the high-profile trial of a man accused of murdering three family members of singer and actress Jennifer Hudson"

From Ameet Sachdev's Chicago Law column in the Chicago Tribune. A few quotes from the long column:

Earlier this year, the Illinois Supreme Court announced that it will experiment with allowing news cameras to broadcast trials in the state's circuit courts for the first time. It was a landmark decision, not just for the media but also for the public. Citizens would have real-time access to trials that they previously only could learn about on the television news or in the newspaper.

Until cameras are allowed in Cook County courtrooms, however, technologies like the microblogging site Twitter provide one of the few options for timely information about trials.

But Judge Charles Burns does not want journalists incessantly tapping on their smartphones during William Balfour's trial. He's afraid they will distract the jurors and disrupt the proceedings.

The Balfour case poses an age-old dilemma: How should a court balance the public's right to know with the right of all parties (both the prosecution and defense in a criminal matter) to a fair trial?

Posted by Marcia Oddi on Friday, April 13, 2012
Posted to Courts in general

Courts - "Cook County judge (who is up for retention this fall) pleads ‘not guilty’ in courthouse incident "

Lisa Donovan has the story in the Chicago Sun Times. Some quotes:

Cook County Judge Cynthia Brim found herself on the other side of the bench Friday as she stood before a judge and pleaded not guilty to a misdemeanor battery charge lodged after she shoved a deputy at a downtown Chicago courthouse last month. * * *

On March 9, Brim was arrested at the Daley Center court complex after throwing a set of keys and shoving a Cook County sheriff’s deputy at a security checkpoint in the courthouse. She was briefly locked up in a holding cell in the courthouse basement before being released on her own recognizance.

A day earlier — on March 8 — Brim was seen acting erratically on the bench as she presided over traffic cases in the county’s Markham courthouse. She was hearing traffic cases on tickets written by South Holland, that town’s police chief confirmed. * * *

Several days after her courtroom outburst and arrest, Brim was removed from the bench indefinitely by a panel of judges who preside over everything from the civil to the criminal divisions of the local court system.

According to the order the judges’ panel issued: “There is reasonable cause to believe that a medical examination may reveal that Judge Brim presently is unable to perform her judicial duties, which could result in serious injury to the public or impede the orderly administration of justice.”

The judge’s unrestricted access to court facilities has been revoked.

It’s unclear whether she’ll continue collecting her $175,000-a-year paycheck.

Brim, who is up for retention on the November ballot, became a judge in 1994. She was re-elected in 2000 and 2006, though she wasn’t recommended by a majority of area bar associations either time.

Posted by Marcia Oddi on Friday, April 13, 2012
Posted to Courts in general

Ind. Gov 't. - "Daniels today named Mike Alley as the new commissioner of the Indiana Department of Revenue and Mike Ashley as the new chief financial officer of the department"

Well, that can be confusing if you don't read it slowly. From the news release:

Alley served as president and CEO of Fifth Third Bank of Central Indiana in Indianapolis from 1989 through 2002. He is currently chairman and owner of Patriot Investments, LLC, a company he founded in 2002. In 2009 he was named interim chairman and CEO of Integra Bank Corporation in Evansville, a position he held until 2011. He is the current president of the board of trustees of Indiana State University. Alley serves on a number of non-profit boards including the Indiana State University Foundation, Boy Scouts of America, the Crossroads of America Council and the United Way of Central Indiana. He earned his accounting degree from Indiana State in 1978.

Ashley has more than three decades of experience in information technology and finance, including various chief financial officer roles. He was the deputy director and chief financial officer for Indiana Department of Child Services during the time DCS moved the responsibility for child welfare financing from the counties to the state. Before joining DCS, he was director of corporate finance and investment banking at Eli Lilly from 1998-2006. He previously worked for Eli Lilly Japan KK as director of administration and strategy and as the director of finance operations and was controller at Physio Control Corp, a Lilly Medical Devices division in Seattle. In all, he was at Eli Lilly for over 29 years in various financial leadership positions. He earned his bachelor’s degree and MBA from UCLA.

Alley will replace current commissioner John Eckart, who tendered his resignation last week but remains with the department to assist with the transition. Alley and Ashley will begin their new duties in early May.

Posted by Marcia Oddi on Friday, April 13, 2012
Posted to Indiana Government

Ind. Gov't. - More on: Unslated judicial candidates file lawsuit against Marion County election boards

Updating yesterday's ILB entry, here now are the complaint and the request for preliminary injunction, both filed April 12 in Marion Circuit Court.

Posted by Marcia Oddi on Friday, April 13, 2012
Posted to Indiana Government

Ind. Courts - Determination and persistence evident in one judge's history

Last week I attended the afternoon session of the Indiana Law Review Symposium, "Reflecting on Forty Years of Merit Selection," particularly to watch the final panel, "Should Indiana Merit Selection be Trumpted, Tweaked, or Trashed? - The Governors' Counsels."

Sitting on the panel were:

Each of these Governors' counsels had played the central role in their governor's selections of trial judges, Court of Appeals judges, and Supreme Court justices.

As moderator, the Honorable Tim Oakes, Marion County Superior Court, posed the opening question to Judge Magnus-Stinson, noting that she had by far the most experience on both sides of the selection process, and in serving in both elected and appointed judgeships. He asked her to please relate her background.

With Judge Magnus-Stinson's permission, I am reproducing her answer here:

From 1983 until 1990, I worked as an associate for the law firm of Lewis, Bowman, St. Clair and Wagner (now Lewis Wagner). I was a civil litigator.

From 1991 until 1995, I worked for then-Gov. Evan Bayh first as an executive assistant in 1991 and then as Counsel to the Governor from 1991 until 1995. I also served as Bayh's Deputy Chief of Staff from 1994 until 1995.

From 1995 until 2007, I served as a Superior Court judge in Marion County in the Criminal Division I was initially appointed by Governor Bayh, and then stood for election in both 1996 and 2002.

While serving there, in 1998, I applied for a position on the Indiana Court of Appeals. I was nominated as one of the 3 finalists by the nominating commission, but Chief Judge Maggie Robb was the successful candidate.

In 2001, I applied for the position of magistrate judge in my current court. I was one of 5 finalists nominated by the merit selection commission, but not chosen. Magistrate Judge Tim Baker was the successful candidate.

I applied again for a magistrate vacancy in 2006, was selected by the district judges, and in January 2007, became a United States magistrate judge for the United States District Court for the Southern District of Indiana, where I served until becoming a district judge in 2010 following nomination and appointment by President Obama and confirmation by the United States Senate.

Jane Magnus-Stinson

Judge Magnus-Stinson's history, I believe, is an object lesson in the value of perseverance.

Posted by Marcia Oddi on Friday, April 13, 2012
Posted to Indiana Courts | Vacancy on Supreme Court 2012

Ind. Gov't. - "Should legislators be able to hold two public jobs?"

Indiana isn't mentioned in this national story today from Melissa Maynard of Stateline. But the example cited sounds oddly familiar. The story begins:

Alabama legislators don’t make much money for their service, with base pay of $10 per day for most of the year and modest per diems to cover living expenses during the legislative session. But for years, many legislators could count on an additional perk: Supplemental income for themselves or their spouses from jobs in the two-year college system as instructors or administrators.

The practice has since been eliminated, and safeguards put into place to prevent future abuse, thanks to a 2006 investigation by The Birmingham News that won the Pulitzer Prize, landed some legislators behind bars, and led to a 2010 law banning legislators from most forms of public sector employment. The investigation found that a fourth of the 140 members of the legislature were financially linked to the community college system through direct employment or contracts ranging from $162,930 a year for Rep. Yvonne Kennedy for serving as a college president to $2,340 for Rep. Charles Newton for teaching history classes.

The ILB quoted the Birmingham News story in this Sept. 30, 2007 entry.

Posted by Marcia Oddi on Friday, April 13, 2012
Posted to Indiana Government

Ind. Decisions - "Bisard case: New DNA, alcohol tests ordered - Ruling is victory for prosecutors in drawn-out case"

Here is a long list of earlier ILB entries on the Bisard case.

Vic Ryckaert reports today in the Indianapolis Star:

A Marion County judge handed prosecutors a victory Thursday in ordering new DNA and alcohol tests on blood taken from suspended police officer David Bisard after he crashed into a group of motorcyclists nearly two years ago.

That ruling is just the latest in a series of drawn-out legal maneuvers in the case, and the father of the man killed in that crash said his family's ordeal was far from over. * * *

Judge Grant Hawkins ordered that DNA be collected from Bisard and that DNA and alcohol tests be performed on the two vials of Bisard's blood drawn hours after his squad car crashed into riders stopped at a red light on the Northeastside.

Posted by Marcia Oddi on Friday, April 13, 2012
Posted to Ind. Trial Ct. Decisions

Stage Collapse - "State Fair faulted in stage deaths Rigging inadequate, untested"

That is the headline to Niki Kelly's long story today in the Fort Wayne Journal Gazette on the investigative reports released yesterday. It begins:

INDIANAPOLIS – State Fair officials failed to discuss or implement changes from a weather evacuation scenario conducted a month before tragedy struck the event, killing seven.

A weather radio broadcasting the latest severe thunderstorm warning wasn't in the joint operation center that August night where key decisions were being made.

State Fair Executive Director Cindy Hoye thought the band, Sugarland, had the final say on postponing or canceling the show.

These were just a few examples of deficiencies outlined by independent investigations released Thursday into the Aug. 13 State Fair rigging collapse just prior to the concert.

Overall the Indiana State Fair did not have an adequate emergency response plan and didn't follow the slim procedures it had, the investigations found.

Hoye and Andre Lacy, chairman of the Indiana State Fair Commission, remain in their positions – fully backed by Gov. Mitch Daniels.

"Retaining Cindy is exactly the right decision. Many other states would like to hire Cindy, and we're lucky to have her," Daniels told The Journal Gazette. "As today plainly showed, Andre Lacy is demonstrating a sense of the kind of accountability, transparency, and integrity that should be used to approach problems.

The Indianapolis Star today has extensive coverage of the reports and press conference. The story, by John Tuohy and Carrie Ritchie, begins:
No one took command as a storm approached, emergency plans were inadequate, the communications were ragtag and the construction was shoddy.

Oversight of safety standards? Nonexistent.

Yet top Indiana State Fair officials in charge at the time of last year's fatal stage rigging collapse will keep their jobs -- despite a pair of scalding reports issued Thursday.

With the blessing of Gov. Mitch Daniels, the Indiana State Fair Commission announced that its president and executive director will stay on to run the fair and implement recommendations from two independent firms that investigated the tragedy.

From later in the story:
The reports' findings run counter to statements made by Daniels, who in the days immediately following the stage collapse called the powerful wind gust that upset the stage a "fluke."

"Well, we know a lot more today than we did back in August 2011, and that's exactly why we hired the two firms to come in and to do the work that they've done," Jankowski said. "This is the information that we need to move forward." * * *

Rep. Ed DeLaney, D-Indianapolis, who supported legislation this year to regulate outdoor stages, said he found the reports "very troubling."

"We were not prepared in terms of our procedures, and obviously there were multiple problems with the stage," he said. "The wind was not as high as the minimum standard that was supposed to be protected against, and yet this happened."

The legislation was drafted quickly, so the legislature set it up to expire in 2014. DeLaney said the reports will go to committees that will study what went wrong and what provisions should go in a new bill.

"We've got to find a long-term statute that will help address these issues," DeLaney said. "This is pretty disturbing."

Posted by Marcia Oddi on Friday, April 13, 2012
Posted to Stage Collapse

Environment - "National Park Service to restore Cowles Bog to former condition"

Some quotes from a long, unsigned story in yesterday's Chesterton Tribune:

A century ago, visitors to what is now the Dune Acres area on what is today U.S. Highway 12 would have seen something very different from the scene today.

In place of the current stand of trees, passersby would have looked out upon a much more open wetland area. The Cowles Bog Wetland Complex, as this area is known, contained the globally threatened lake plain wet-mesic prairie ecosystem and was home to an uncommon set of plants and animals. Over the last 100 years, however, the bog has been ditched, drained, farmed, polluted, and overtaken by trees, eliminating this unique landscape.

The National Park Service (NPS) has recently announced plans to restore this special corner of Northwest Indiana to its historical state. “The plans are a bold step to enhance the site for the use of students, scientists, and park visitors, and to improve regional quality of life,” NPS said in a statement released this week.

Posted by Marcia Oddi on Friday, April 13, 2012
Posted to Environment

Thursday, April 12, 2012

Ind. Gov't. - Tomorrow is first meeting this year of State Budget Committee ...

Here is the posted list of State Budget Committee members. Several of the members are retiring from the General Assembly this year.

The stated function of the Budget Committee during the interim when the legislature is not in session:

The Budget Committee provides continuing legislative oversight of budget implementation. The Budget Committee meets during the interim between legislative sessions. Many appropriations contained in the Budget require Budget Committee review before any funds may be allotted or spent. In addition, the Budget Committee must review all construction projects that have a cost greater than $100,000 prior to proceeding with construction.
(This may pose some interesting separation of powers questions, but this system has been in place for many years.)

The State Budget Committee is meeting tomorrow in Madison, Indiana. The agenda is 12-pages long, with most items described in great detail.

Some of the items are quite concerning. For instance, item #3, the current Medication Management System for the State Operated Facilities (SOFs), is described as "not a closed loop medication management system, focuses on acute rather than long-term care, loses medication orders, does not provide counter signatures and verifications, not HIPAA compliant, does not have date/time stamp verification, not web-based, lack of role-based security, lack of a centralized database, and lack of standardized reporting ability."

Item #13: "The Department of Administration requests approval to proceed with a fire alarm upgrade project encompassing both the State House and the State Library. The current system was installed in 1990 and is no longer being sold or serviced by the manufacturer. This represents a life safety issue since certain components will no longer be supported or available when repairs and replacement are necessary."

But particularly concerning to me is item #14:

The Office of Technology requests approval to undertake a project to provide emergency redundancy systems in their Data Center, located in the Government Center North Building.

The Data Center currently houses over 95% of the State government servers and data processing equipment.

Due to the State’s server consolidation effort as well as adding processing for the City of Indianapolis, Ivy Tech, the Appellate Courts and others, the Data Center’s backup power capacity exceeds its current systems’ operational capabilities.

The Data Center has two dedicated generators where both generators must be operational to sustain operations in the event of a loss of electrical power. With the insufficient redundant design where one of the generators failed, it would result in State Police, Department of Revenue, Department of Transportation, Bureau of Motor Vehicles and other agencies losing access to critical information.

Funding this request will provide the Data Center with the proper systems to maintain critical server processing capabilities by integrating a third generator into the Data Center backup power system.

Who knew! And does this lack of redundancy include the General Assembly records and databases? Does it include the state-wide JTAC system?

Continuing on through the agenda, finally, at the very end of the final page, page 12, is this entry (in its entirety):

V. Discussion Items
1. Follow-up on E-Check revenues from corporate estimated payments
2. Local Option Income Tax Distributions
Item #1 is the $320 million in corporate tax receipts discovered last December. Item #2 is the $200 million error discovered last week that resulted in money destined for the counties having gone to the State instead for the past 14 months.

These "discussion items" are detailed in a story today in the Indianapolis Star, which reports:

But the bipartisan committee -- which includes four lawmakers and the governor's budget director -- is not expected to act immediately to hire an independent auditor.

Instead, the group is likely to gather more information about the incident -- and an earlier problem the administration of Gov. Mitch Daniels disclosed in December -- before moving forward with the audit.

"I don't think you're going to see a decision," said Sen. Luke Kenley, R-Noblesville, a member of the Budget Committee. "The question is whether this is indicative of [1] a deeper technology problem, or [2] a deeper audit problem. Or [3] is it the result of a management issue? Until we found out the answers to those questions, I'm not sure how far we want to go."

Posted by Marcia Oddi on Thursday, April 12, 2012
Posted to Indiana Government

Stage Collapse - State Fair officials release investigation reports - access them here

Here are the investigative reports of Thornton Tomasetti Inc. and of Witt Associates, via the State Fair Commission website.

Posted by Marcia Oddi on Thursday, April 12, 2012
Posted to Stage Collapse

Stage Collapse - Governor Daniels statement about the release of the State Fair accident reports today

Here is the statement, just released:

“I don’t think we could have done better than these two world renowned firms. I thank them for their thorough and professional work.

“The State Fair Commission knows that we will insist on immediate and complete implementation of the recommendations in this report. But it’s also now clear that most, if not all states, have been deficient in this area and have much to learn from this tragedy. We will share freely all these findings and suggestions with any state who will listen, starting later this month at a national meeting in Indianapolis about national safety standards for outdoor temporary stages and structures. The meeting is being hosted here because of the State Fair accident.

“We’d give anything to have that night over, but occasionally something positive can come out of terrible tragedy, and we have to do all we can to make that happen here.”

Posted by Marcia Oddi on Thursday, April 12, 2012
Posted to Stage Collapse

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

Jarrad L. Mastin v. State of Indiana - "Mastin has not demonstrated that the trial court’s evidentiary rulings denied him a fair trial. There is sufficient evidence from which the jury could conclude that Mastin committed child molesting by sexual intercourse. His ninety-year sentence is not inappropriate."

In John Morse, M.D. v. Jeffrey Wayne Davis, a 21-page opinion, Judge Najam concludes:

Dr. Morse has not shown that the trial court abused its discretion when it precluded testimony from Dr. Morse’s expert witnesses that they believed that Davis had not advised Dr. Morse that his mother had a history of colon cancer despite Davis’ testimony to the contrary. The purpose of that testimony would have been to impeach Davis’ credibility on a critical issue of fact, namely, whether he had told Dr. Morse about his mother’s colon cancer. A determination of Davis’ credibility was within the sole province of the jury, and the proffered testimony was prohibited under Evidence Rule 704(b). Likewise, Dr. Morse has not shown any abuse of discretion in the exclusion of Exhibit H or the testimony of Dr. Welch and Austin. Affirmed.
NFP civil opinions today (2):

H.V. and O.P. v. Indiana Department of Child Services (NFP)

Rodney W. Robinson v. Arthur Cashwell & Roxie Battle (NFP)

NFP criminal opinions today (7):

Robert E. Stanley v. State of Indiana (NFP)

Gary Anderson Proby v. State of Indiana (NFP)

Johnny Lee Gibson v. State of Indiana (NFP)

D.H. v. State of Indiana (NFP)

Jason Haste and Jamie R. Haste v. State of Indiana (NFP)

Joseph Adams v. State of Indiana (NFP)

David Paul Burns v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 12, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues two Indiana decisions today, one a remand for resentencing

In U.S. v. Raupp (SD Ind., Pratt), a 22-page, 2-1 opinion, Chief Judge Easterbrook writes:

This appeal, from the sentence of 100 months’ imprisonment, presents a single question: Whether a conspiracy to commit robbery is a “crime of violence” under the Guidelines.

Robbery in Indiana is a “crime of violence” under the Guidelines and a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. §924(e). See United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005). Raupp was convicted under Ind. Code §35-41-5-2 of conspiring to violate Ind. Code §35-42-5-1, Indiana’s robbery statute. Application Note 1 to §4B1.2 tells us that an inchoate offense such as conspiracy is a “crime of violence” when the underlying crime is one. This note reads: “ ‘Crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” That disposes of this appeal, as far as the Sentencing Commission is concerned.

Raupp asks us to ignore the application note. He contends that it has been superseded by Begay v. United States, 553 U.S. 137 (2008), and later decisions. * * *

Congress left “crime of violence” in §994(h) undefined * * *

Thus the Commission is free to go its own way; it can classify as “crimes of violence” offenses that are not “violent felonies” under §924(e). It can’t do this by application notes that contradict the text of the Guideline, but what the first note to §4B1.2 does is address a question—the treatment of inchoate offenses—left open by the text of §4B1.2, as it is also left open by the text of §924(e) and the holding of James.

Section 924(e) uses the definition of “violent felony” to set 15-year minimum sentences. The Sentencing Commission does not prescribe such a stern and inflexible outcome by defining “crime of violence.” Both §4B1.1 and §2K2.1(a)(2) raise the offense level without setting a mandatory minimum. They are just Guidelines, so the judge is free to impose a sentence outside the Commission’s preferred range after evaluating each defendant’s arguments. See United States v. Corner, 598 F.3d 411 (7th Cir. 2010) (en banc). Raupp was free to contend that a conviction for conspiracy to commit robbery does not imply the same level of dangerousness as a conviction for robbery, and to seek a lower sentence on that account. But he does not assert that the district judge misunderstood the extent of her discretion or exercised it unreasonably. His sole contention is that district judges must ignore the first application note to §4B1.2, and that contention does not carry the day. AFFIRMED

[Circuit Judge Woods dissent begins on p. 10 of 22] The only point that Anthony Raupp has raised on this appeal is whether the district court, in applying U.S.S.G. § 2K2.1(a)(2), correctly added two offense levels under the U.S. Sentencing Guidelines on the ground that Raupp had two previous convictions for crimes of violence. That guideline stipulates that the meaning of the term “crime of violence” for purposes here is the same as that found in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2. The question before us concerns what that definition properly covers and whether it includes Raupp’s prior state conviction for conspiracy to commit robbery. My colleagues conclude that the Sentencing Guidelines in this instance have adopted a significantly broader definition than the one used in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B). With respect, I do not agree with them. Their holding is inconsistent with a long line of cases holding that the text of § 4B1.2 and the nearly identical text in the ACCA have the same meaning. Although there would be no problem if the commentary to the Guidelines on which my colleagues rely were merely explaining concepts within the boundaries established by the Guidelines themselves, there is a problem when the commentary strays outside those boundaries altogether. I am persuaded by Raupp’s argument, and I would therefore vacate his sentence and remand for resentencing.

In U.S. v. Mount (SD Ind., Magnus-Stinson), a 17-page opinion, Circuit Judge Wood writes:
Jaymie Mount disappeared while on release awaiting trial on a charge of possession of a gun by a felon, in violation of 18 U.S.C. § 922(g)(1). He was captured nearly three months later and pleaded guilty two weeks before his trial was set to begin. At sentencing, the district court granted him a two-level reduction in his offense level under the U.S. Sentencing Guidelines for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). In keeping with the plea agreement, the government moved for Mount to receive an additional onelevel reduction, because it was satisfied that he had given prosecutors timely notice of his intention to plead guilty. See id. § 3E1.1(b). The district court denied that motion, however, citing Mount’s flight as its reason. Mount appeals, arguing that the additional one-level reduction is mandatory once the government determines that the criteria spelled out in § 3E1.1(b) are satisfied and it makes the necessary motion. We conclude that Mount is correct, and we thus remand for resentencing. * * *

We conclude that the district court erred here by failing to grant Mount the one-level reduction under § 3E1.1(b) that was triggered by the government’s motion. His advisory guideline range was affected by that error, and we cannot say on this record that the error was harmless. We do note, however, that the district court would have had the authority to select a higher sentence based on its concern about Mount’s decision to go on the lam for several months. We express no opinion about the reasonableness of any final sentence the district court may select.

Posted by Marcia Oddi on Thursday, April 12, 2012
Posted to Ind. (7th Cir.) Decisions

Courts - More on "Women Supreme Court Justices Celebrate 30 Years Since Court's First Female" [Updated]

Updating this ILB entry from earlier today, Tony Mauro reports today in the Blog of Legal Times in a story headed "Supreme Court Women: The Power of Four." Some quotes:

[Retired Justice Sandra Day O'Connor] spoke at a panel discussion in her honor, along with the three women who currently sit on the Court: Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. * * *

When Duff asked about the Court's intensely active questioning from the bench, O'Connor guessed with a smile, "Maybe women ask more questions." She was also the only of the four justices to answer the inevitable question about why it is important for the Court to have an increasing number of women. "Maybe you haven't noticed, but I think maybe 51 or 52 per cent of the population are females," O'Connor said. Women notice when public institutions are mostly male, she said, and they should. "That's part of the deal."

[Updated at 2:03 PM] Some hilarious bits in this NY Times blog entry, including:
The one aspect that got the most attention — one that continues to this day — was the morning exercise class Justice O’Connor founded.

Justice Elena Kagan, who served as a law clerk to Justice Thurgood Marshall from 1987 to 1988, recalled meeting and disappointing Justice O’Connor back then.

“She was a formidable person,” Justice Kagan said. “Even a clerk knew how formidable a person Justice O’Connor was.”

Justice O’Connor encouraged the female law clerks to attend the class, but the young Ms. Kagan preferred playing basketball.

“I failed to come to the exercise group,” Justice Kagan recalled.

Justice O’Connor said, a little sharply, “I noticed.”

Later, Ms. Kagan injured herself on the court and, on crutches, encountered Justice O’Connor. “She sadly shook her head,” Justice Kagan recalled, “and she said, ‘It wouldn’t have happened in exercise class.’ ”

Posted by Marcia Oddi on Thursday, April 12, 2012
Posted to Courts in general

Stage Collapse - "State Fair officials release investigation reports into Aug. 13 stage rigging collapse"

Reporters are at State Fair Board meeting today, hearing investigative reports from reports from Witt Associates and Thornton Tomasetti. Here is current WISH TV report.

It must be complex ... Niki Kelly of the FWJG tweets: "Just the setup of the report is complicated. Forensic database. Metallurgy analysis. Reverse engineering. Lasers.." Carrie Ritchie of the IndyStar: "Nacheman says TT evaluated the stage on-site and off-site, including in some sort of wind-tunnel setting."

More later today.

Posted by Marcia Oddi on Thursday, April 12, 2012
Posted to Stage Collapse

Ind. Law - "State asks federal judge to uphold Indiana immigration law "

Earlier this week AG Zoeller filed a response to a motion for summary judgment in the federal lawsuit challenging the Indiana immigration law enacted in 2011. In June of 2011, Judge Sarah Evans Barker granted a preliminary injunction - see ILB entry here from June 25, 2011. See this update from July 19, 2011.

Here is Charles Wilson's detailed AP story from yesterday, that begins:

INDIANAPOLIS (AP) — State attorneys say the ACLU is exaggerating the powers Indiana's new immigration law gives to local police in an effort to persuade a federal judge to throw out parts of the law.

In a brief filed this week in U.S. District Court in Indianapolis, the state attorney general's office argued the ACLU and other plaintiffs have mischaracterized the law and that its provisions "do not mandate that local law enforcement arrest persons in a willy-nilly fashion based on the mere suspicion that the person may not legally be in the United States." * * *

Judge Sarah Evans Barker granted an injunction last July blocking parts of the law from taking effect, and the plaintiffs are asking her to make the injunction permanent.

The ACLU has said the law's wording would allow the arrest of anyone who has had a notice of action filed by federal immigration authorities, a formal paperwork step that affects virtually anyone applying to be in the U.S. But the state claims that police could only arrest immigrants when they have documents showing the federal government has ordered them to be removed or detained, and the law allows officers to use discretion.

There is much more in the story.

Finally, here is the Indiana AG's 35-page brief, filed April 9, 2012, responding to plaintiffs' motion for summary judgment. And here is the plaintiffs' 35-page brief in support of their motion for summary judgment, filed Nov. 20, 2011.

Posted by Marcia Oddi on Thursday, April 12, 2012
Posted to Ind Fed D.Ct. Decisions | Indiana Law

Ind. Gov't. - Unslated judicial candidates file lawsuit against Marion County election boards

Updating this ILB entry from April 9th, according to a press release, Greg Bowes, former Marion County Assessor and current Democratic candidate for Marion County Superior Court Judge, along with four other candidates, Mark King, Paul Ogden, Zach Mulholland, and Brian Cooper are filing a lawsuit today:

... against the Marion County Board of Voter Registration and the Marion County Election Board. The lawsuit alleges that Voter Registration illegally denied them access to public information in its voter registration database. It alleges that the Election Board violated the public records law by refusing to adopt a policy allowing them public access to the information.

Posted by Marcia Oddi on Thursday, April 12, 2012
Posted to Indiana Government

Ind. Gov't. - "Evidence Counts: Evaluating State Tax Incentives for Jobs and Growth"

The PEW Center on the States has released a new report today - from the news release:

A report by the Pew Center on the States concludes that 13 states are leading the way in generating much-needed answers about tax incentives’ effectiveness. Twelve states have mixed results. Half the states have not taken the basic steps needed to know whether their incentives are effective. The study highlights a wealth of promising approaches states have taken to help lawmakers find those answers.
A few quotes from the report itself:
California does not publish high-quality evaluations of a tax credit for research and development that costs more than $1 billion annually. Sixteen states (Alabama, Alaska, Idaho, Illinois, Indiana, Maine, Maryland, Mississippi, Montana, Nevada, New Hampshire, South Dakota, Tennessee, Utah, Vermont, and Wyoming) and the District of Columbia did not publish a document between 2007 and 2011 that evaluated the effectiveness of a tax incentive.
From a Stateline story on the report:
As states spend billions each year on tax incentives, the lack of scrutiny over each program’s impact is a serious problem, according to a report released Thursday by the Pew Center on the States, Stateline’s parent organization. Each state has at least one incentive program, and most have many. But the Pew report, based upon review of close to 600 documents from state agencies and legislative bodies and more than 175 interviews, found that 25 states and the District of Columbia are “trailing behind” when it comes to reviewing the economic impact of tax incentives. “[W]hen lawmakers consider whether to offer or continue such incentives, how much to spend, and who should get them, they often are relying on incomplete, conflicting, or unreliable information,” the report says. As a result, taxpayers in some states may be unknowingly footing the bill for programs that are ineffective and, in some cases, abused. * * * Though no state has a complete picture of the impact of its tax credits, the report notes, some states have ramped up scrutiny, providing models that other states might follow. Overall, the report names 13 states that are “leading the way,” while 12 states have “mixed results.” Under a new Oregon law, for instance, tax credits expire every six years and need legislative approval before renewal. Washington State reviews each tax credit every ten years, and Arizona and Iowa review major incentives every five years, though Iowa’s reviews, initiated after the state uncovered wide-scale abuse of its generous film tax credit, have not yet offered recommendations to policy makers. “It’s just a good idea to review them periodically and make sure they’re worth it,” J.D. Mesnard, an Arizona state representative who co-chairs the committee that reviews the state’s tax credits, told Pew researchers.

Posted by Marcia Oddi on Thursday, April 12, 2012
Posted to Indiana Government

Courts - "Women Supreme Court Justices Celebrate 30 Years Since Court's First Female"

Mike Sacks has the story today in the Huffington Post. It begins:

WASHINGTON -- The only four women to serve as Supreme Court justices gathered Wednesday night to celebrate Sandra Day O'Connor's pathbreaking arrival on the bench three decades ago.

O'Connor, who retired in January 2006, was joined at the Newseum by sitting justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan for a wide-ranging panel discussion extending from the impact of O'Connor's nomination on the other three women to the state of the court today.

President Ronald Reagan, fulfilling a campaign promise, nominated O'Connor in July 1981, when she was serving in relative obscurity as a state judge on an intermediate appeals court in Arizona. The Senate unanimously confirmed her nomination that September.

"It's all right to be the first to do something, but I certainly didn't want to be the last woman on the Supreme Court," O'Connor said, reflecting on the responsibility she felt as the lone representative of her sex among the nine justices.

Posted by Marcia Oddi on Thursday, April 12, 2012
Posted to Courts in general

Courts - "Florida Supreme Court has established new rules that would muzzle individual judges who try to have their way with the Legislature."

That is a quote from a story headed "In wake of 'Taj Mahal' scandal, Florida Supreme Court approves new lobbying rules for judges," by Lucy Morgan in the April 11th Tampa Bay Times. The lede:

TALLAHASSEE — Stung by public reaction to judges who lobbied state lawmakers into a $50 million courthouse many have dubbed a "Taj Mahal,'' the Florida Supreme Court has established new rules that would muzzle individual judges who try to have their way with the Legislature.

Posted by Marcia Oddi on Thursday, April 12, 2012
Posted to Courts in general

Wednesday, April 11, 2012

Ind. Courts - Judicial ethics questions raised in Lake County trial

You'll need to read the whole story to follow, but Bill Dolan's report today in the NWI Times begins:

CROWN POINT | Questions of unethical behavior swirled Tuesday around the case of a Valparaiso businessman awaiting trial on criminal charges in a fatal 2010 crash.

Lake Criminal Court Judge Thomas Stefaniak Jr. and veteran defense lawyer Thomas Mullins were both challenged to remove themselves from further proceedings involving defendant Jeffery Cleary over accusations their professional objectivity has been compromised by emotions surrounding the matter.

The 40-minute hearing involved unusual role reversals. Deputy Prosecutor David Urbanski had to take the witness stand to be questioned under oath. Crown Point attorney Alger Boswell III avoided testifying himself by asking for time to hire his own lawyer.

Stefaniak alleged in open court that someone improperly steered this case to his courtroom in 2010 and violated rules that prevent lawyers from using courtroom transfers to find friendlier judges. Stefaniak said he thinks he and Boswell have been "used" and threatened to file a complaint with the Indiana Judicial Branch's Disciplinary Commission.

Posted by Marcia Oddi on Wednesday, April 11, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Anthony Wade v. Terex-Telelect, Inc. , an 18-page, 2-1 opinion with big name attorneys on both sides, Judge Kirsch writes:

This appeal originates from a complaint alleging that Terex-Telelect, Inc. (“Terex”) was negligent under the Indiana Product Liability Act in the design of the liner of an aerial passenger bucket attached to a truck from which Anthony Wade (“Wade”) fell and was rendered a quadriplegic. Wade appeals from a jury verdict in favor of Terex and asserts that the trial court erred when it denied his partial motion for directed verdict and instructed the jury regarding the rebuttable presumption under Indiana Code section 34-20-5-1 that the product was not defective. Wade raises the following restated and consolidated issue: whether the trial court erred in instructing the jury because no evidence was presented to show that the liner was state of the art or in compliance with government standards. We reverse and remand. * * *

At the conclusion of the trial, the jury returned a verdict that allocated zero fault to Terex, zero fault to Dueco, and 100% fault to Wade. Wade now appeals. * * *

We conclude that the trial court erred in instructing the jury as to the rebuttable presumption under Indiana Code section 34-20-5-1. * * *

Here, the instruction in this case was not harmless. By its specific language, the instruction allowed the jury to presume that Terex's product was not defective and that Terex was not negligent if the bucket liner was manufactured in conformity with state of the art or compliance with government regulations. This instruction was erroneous because it was unsupported by relevant evidence and went to the very heart of this case. Wade was prejudiced by instructing the jury as to the rebuttable presumption under Indiana Code section 34-20-5-1. We reverse the trial court's judgment and remand for a new trial. Reversed and remanded.

VAIDIK, J., concurs.
BRADFORD, J., concurs in part and dissents in part with separate opinion. [which begins, at p. 16] Although I agree that Terex was not entitled to a “state of the art” instruction and so would remand for retrial in any event, I cannot agree that the trial court abused its discretion in instructing the jury regarding the rebuttable presumption that a product is non-defective if it conforms to applicable governmental regulations. Consequently, I respectfully dissent in part.

In Robert A. Baker v. State of Indiana, a 14-page opinion, Judge Brown writes:
The State elicited testimony from Officer Kipper that the ETC had “continuing education classes for students who wish to pursue their high school education to get their diplomas.” However, the State does not point to any evidence presented at trial which shows that the ETC was a building or other structure owned or rented by a school corporation or other type of entity or organization described under Ind. Code § 35-41-1-24.7. Moreover, the State does not point to evidence which indicates that the students enrolled in any program at the ETC, including those seeking their high school diplomas, were school-age children and not adults or college-age individuals.

In light of this court’s holdings and observations that the words “school property” do not include a college or university, see Pridgeon, 569 N.E.2d at 724, that we strictly construe criminal statutes defining offenses to avoid the creation of penalties by construction and strictly construe criminal statutes against the State, and that the legislative intent was “to afford special protection to children from the perils of drug trafficking,” we conclude that the evidence presented by the State does not, standing alone, show that the ETC constituted “school property” as contemplated by the Indiana legislature for the purpose of enhancement, or prove beyond a reasonable doubt that Baker committed the possession offenses charged in Counts I and II within 1,000 feet of school property. * * *

Based upon the evidence presented at Baker’s trial and the charging information, we conclude that the evidence is insufficient to permit a trier of fact to conclude beyond a reasonable doubt that Baker committed the enhanced possession offenses charged under Counts I and II within 1,000 feet of school property. Accordingly, we reverse Baker’s convictions under Counts I and II and remand with instructions to reduce Baker’s convictions under those counts to class D felonies and to resentence him accordingly. Reversed and remanded.

NFP civil opinions today (1):

Gloria Hussey, Personal Representative of the Estate of Steven Hussey v. William H. Toedebusch, M.D. (NFP)

NFP criminal opinions today (6):

Marcus Washington v. State of Indiana (NFP)

Foster Mowrey v. State of Indiana (NFP)

Jim A. Edsall v. State of Indiana (NFP)

Larry D. Madden v. State of Indiana (NFP)

Patrick Dewayne Carr, Jr. v. State of Indiana (NFP)

David Butler v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 11, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Court of Appeals to hand down ruling on whether Jeffersonville man received a fair trial"

The Court of Appeals heard oral argument yesterday in the case of Ryan Sheckles v. State of Indiana. (The video archive is here.) Today Tara Schmelz of the Jeffersonville News & Tribune has a long story on the trial and on the COA oral argument. A few quotes:

Attorneys for Sheckles filed an appeal with the state and the case was heard Tuesday afternoon. Mary Spears, an attorney representing Sheckles during the hearing, said it wasn’t one large issue, but a multitude of smaller ones that could have influenced the jury in their ruling. She said the issues included the prosecution referring to Sheckles as a “dog,” saying the defense should win an Academy Award for their performance, implying that the jury should be scared and more. She also questioned how the court responded to a question from the jury, asking whether participation in the crime could equal being guilty.

Within one hour after getting a response to that question, jurors were ready with a verdict. They had deliberated for a total of 15 hours.

“The effect this had on the jury is clear … the prosecution’s serious blows to the defense’s credibility surely could have persuaded the jury that Ryan deserved punishment for something, this may be seen in the speed with which the jury came back with a verdict after receiving the targeted instruction,” Spears stated in her brief to the court.

Spears also called into question the prosecution implying that “he possessed hidden information” about Sheckles’ cousin, Robert Sheckles’ knowledge about the case after Robert had an outburst in the courtroom and refused to testify.

Deputy Attorney General Nicole Schuster agreed that the prosecution should not have mocked the defense during trial. However, she said much of the verbiage started with the defense. She said the defense said Laisha Smith — who was given immunity from being prosecuted in this case in exchange for her testimony — should receive an Academy Award. Schuster said the prosecution then said the same for the defense team. She said the term “dog” was used by the defense describing Smith, so the prosecution used it to describe Ryan Sheckles.

Bill Grimes, one of the two prosecutors during the trial, said he was the one to use those words.

“I seldom use a word or phrase that has not already been mentioned in trial,” Grimes said. “I take nothing back. Honestly, if I said what I truly felt, I would have said much worse than that.”

Justice Carr Darden said each of the three judges sitting on the appeals court bench have been trial attorneys at one time and understood the back and forth that goes on during trials. However, he said he didn’t think some of the words used were appropriate.

“As a representative of the state of Indiana … why should the prosecutor stoop to that level?” he asked, adding that it is the cumulative effect of all the errors, not just one name-calling incident, that is being argued here. “Did that in the long run have a negative impact on this man getting a fair trial?”

Posted by Marcia Oddi on Wednesday, April 11, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Law - "Protest follows Indiana midwife's felony arrest"

The ILB has had a number of entries on midwives, here are a few. Yesterday WANE had this long AP story out of LaGrange that begins:

LaGRANGE, Ind. (AP) -- The arrest of a northern Indiana woman on midwifery charges sparked a protest that highlights a long-running push in the state to legalize the practice of certified professional midwives.

Nearly 100 women, men and children protested Monday outside the LaGrange County Courthouse in support of Ireena Keeslar, a Howe resident who was arrested March 31 on a felony charge of practicing midwifery without a license.

Many of the protesting women held babies that had been delivered by unlicensed midwives, and some wore blue T-shirts reading "License my midwife" and "Liberty for midwifes."

Keeslar, who was arrested March 31, has since been released on a $10,000 bail. The Goshen News and The News-Sun of Kendallville report that she's the second midwife in LaGrange County arrested recently on the charge.

Here is the long Goshen News story, by Roger Schneider, headed "Protesters show support for arrested midwives in LaGrange County."

Unfortunately, the The News-Sun of Kendallville is total paywall, so you won't be hearing any news from them in the ILB.

Posted by Marcia Oddi on Wednesday, April 11, 2012
Posted to Indiana Law

Tuesday, April 10, 2012

Environment - A commentary on: Merger of pollution boards worries some

Updating this April 8th ILB entry, this morning the Indianapolis Star has an editorial headed "Sounding environmental alarms." Some quotes:

In the name of simplification and efficiency, the General Assembly this year disbanded a number of state panels and commissions and merged three vital rule-making boards: water pollution control, air pollution control and solid waste management.

As of January, all their complex and critical work will be handled by the new Environmental Rules Board, comprising 16 members appointed by the governor.

The streamlining could cost more in institutional memory than it saves in money. If it is to succeed, the volunteer board must be provided with staff to deal with highly specialized, highly technical research and assessment whose impact on natural resources, public health and the economy will be profound.

Let's stop right there. When there were three separate boards, the technical secretary positions were for the most part vacant. Few, if any, were willing to serve. So the three separate boards had no independent staff.

The editorial concludes with:

Both sides are making a modest request of a legislative summer study committee: Help lawmakers find money for a full-time in-house technical adviser to guide the board through the thicket of state and federal laws and rules affecting the quality of life of every Hoosier. The committee will look into funding, but hopes are not high. Given the size of the task, the price of not investing would be high -- unacceptably so.
Two points here: First, look at the new law's provisions re the tecnhical secretary (advisor). HEA 1002 (see pp. 47-51) provides:
The board shall select, from a list of three (3) qualified individuals recommended by the governor, an independent third party who is not an employee of the state to serve as technical secretary of the board. * * * Provisions of this chapter concerning terms of appointment, vacancies, and compensation of appointed board members apply to the technical secretary. The technical secretary is not a voting member of the board.
The compensation of the technical secretary is set by the new law to be the same as that of the board members. Board members are to be compensated (see top of p. 50) by per diem and milage. So it may be argued that the law would have to be amended to allow the funding "for a full-time in-house technical adviser."

Second, the editorial calls for "a full-time in-house technical adviser to guide the board through the thicket of state and federal laws and rules affecting the quality of life of every Hoosier." So what is the IDEM for? As stated in the April 8th ILB post:

In years past, there has always been a push from some (generally the Chamber) to merge the boards, and perhaps make them full-time, with staff -- a kind of "shadow IDEM." These ideas have never made any progress, until this year when half-a-loaf passed (the merger, but not the staff).
Not only is compensating a qualified person problematic, but perhaps even more so is finding someone to do the job who is trusted by (or at least acceptable to) both industry and the environmentalists, and the governor.

HEA 1002 passed the House 97-0. The Senate amended and passed the bill 44-4. The House then concurred in the Senate amendments 61-36. The Governor signed the bill on March 19th, 2012. Now, only weeks later, many are trying to get the other half of the loaf, the shadow IDEM.

I wrote against the bill during the session, saying it would be a bad idea to eliminate the three individual boards that have operated effectively for over 25 years. But now that they are to be abolished, the answer is not to replace them by providing the new, streamlined environmental rules board with its own staff of full-time, in-house experts. What would come next?

Posted by Marcia Oddi on Tuesday, April 10, 2012
Posted to Environment | Indiana Government

Vacancy on Supreme Court 2012 - Has the Judicial Nominating Commission ever sent a list of three woman nominees to the Governor?

Today a reader who had attended the McKinney School of Law Law Review Symposium on Judicial Selection this past Thursday wrote to say:

One of the speakers mentioned that he believed Justice Myra Selby was chosen by Governor Bayh from the only panel of all women ever sent to a governor for nomination to the Indiana Supreme Court. I was wondering if this was accurate, as I had never heard that before.
The answer is yes, that is accurate, there was once an all-woman panel sent to the governor by the JNC.

Indiana Court Times published a Sept. 3, 2010 article by Adrienne Meiring, titled "The Role of the Judicial Nominating Commission in Judicial Selection." A side-bar to the article sets out a valuable list headed "Judicial Nomination Commission's Supreme Court Nominees since 1984." Here it is, with some additional information added by the ILB:

Justice Donald Hunter's vacancy - 1985
  • Hon. Raymond Thomas Green
  • Patrick Woods Harrison
  • Hon. Randall T. Shepard [Gov. Orr]
Justice Dixon Prentice's vacancy - 1986
  • Hon. Robert Staton
  • Lila J. Cornell
  • Brent E. Dickson [Gov. Orr]
Justice Alfred Pivarnik's vacancy - 1990
  • Hon. John G. Baker
  • Hon. Joanne M. Jourdan
  • Jon D. Krahulik [Gov. Bayh]
Justice Jon Krahulik's vacancy - 1993
  • Hon. Betty A. Barteau
  • Hon. James S. Kirsch
  • Frank Sullivan, Jr. [Gov. Bayh]
Justice Richard Givan's vacancy - 1994
  • Hon. Betty A. Barteau
  • Anne Marie Sedwick
  • Myra C. Selby [Gov. Bayh]
Justice Roger DeBruler's vacancy - 1996
  • Theodore R. Boehm [Gov. Bayh]
  • Hon. Sanford M. Brook
  • Hon. Edward W. Najam, Jr.
Justice Myra Selby's vacancy - 1999
  • Mary Beth Ramey
  • Hon. Robert D. Rucker [Gov. O'Bannon]
  • Hon. Nancy H. Vaidik
Justice Theodore Boehm's vacancy - 2010
  • Hon. Steven David [Gov. Daniels]
  • Hon. Robyn L. Moberly
  • Karl L. Mulvaney
Justice Randall T. Shepard's vacancy - 2012
  • Hon. Cale Bradford
  • Mark S. Massa [Gov. Daniels]
  • Jane Seigel
Justice Frank Sullivan's vacancy - 2012

Posted by Marcia Oddi on Tuesday, April 10, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - More on: "Delaware Judges order council to accept budget The mandate would restore pay and give judges control of the budget"

Updating this ILB entry from March 16th, Keith Roysdon of the Muncie Star-Press is reporting, in a story headed "Supreme Court orders county, judges to seek mediation":

MUNCIE -- The Indiana Supreme Court has ordered Delaware County Council and local judges to try to work out their differences.

The state's highest court has ordered the two sets of local officials to mediate their dispute.

In the order, Acting Chief Justice Brent E. Dickson wrote, "This court, being duly advised, now finds that in the interest of judicial economy it is appropriate to order the parties to mediate their dispute prior to the appointment of a special judge." * * *

In its order, the Supreme Court said it "expects the mediation process to begin immediately and to proceed with all due deliberate focus."

The court wants the mediation process, including the mediator's report, to be done "not later than May 31."

The court named attorney John L. Krauss as mediator.

The Supreme Court's Order is not available online at this time.

Posted by Marcia Oddi on Tuesday, April 10, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 1 NFP)

For publication opinions today (1):

In Salsbery Pork Producers, Inc., Richard K. Wilson, Tipton Co. Commissioners, Tipton Co. Highway Department, Chad Bergin, State of Indiana, Indiana Department of Transportation v. Latina Booth, an 11-page opinion, Judge Bailey writes:

Latina Booth, a resident of Tipton County, was injured in a motor vehicle accident on County Road 1100 in Tipton County. Booth filed suit against Salsbery Pork Producers, Inc., Richard K. Wilson, the Tipton County Commissioners and the Tipton County Highway Department, Chad Bergin , and the State of Indiana and the Indiana Department of Transportation (“the State”). Salsbery, Wilson, and the County (collectively, “the Tipton County defendants”) moved for transfer of venue from Marion County to Tipton County. The trial court denied the motion, and this interlocutory appeal followed.
We reverse and remand. * * *

The trial court abused its discretion when it did not drop the State from the case in light of uncontested evidence that the County, and not the State, had possession and control over County Road 1100. Because the State was not properly joined, and because the Tipton County defendants moved for transfer of venue under Trial Rule 12(B)(3), Marion County is not a preferred venue for the case, and we remand this case to the trial court for transfer to Tipton County.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Troy Phillips, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 10, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - New law school in Fort Wayne faces questions

Interesting story today by Paul Wyche, although I because confused as to whether I was reading a news story or an editorial. Some quotes:

FORT WAYNE – A proposed $16 million law school that has faced scrutiny over its creation endured a few more critics with neighbors airing concerns over the project’s effect on them.

The Fort Wayne Plan Commission listened to Indiana Tech officials during a public hearing Monday as they tried to convince the panel to approve the three-story, 70,000-square-foot institution that would initially have 100 students and would become the fifth law school in the state next year.

Those against establishing the legal training grounds say a brutal labor market, a glut of attorneys and law students, and the high cost of education are proof that Indiana Tech’s decision is unwise. Locally, Barnes & Thornburg, the largest Indiana firm, and Baker & Daniels, the biggest firm in Fort Wayne, have scaled back summer internship programs.

Students in need of loans probably would end up borrowing more than $85,000. New attorneys just hanging their shingles can expect to earn between $35,000 and $65,000, according to the college’s feasibility study. Even Indiana Tech President Arthur Snyder admitted that it is doubtful that Indiana Tech students will earn six-figure salaries after graduation. * * *

All of that, though, was of no concern to the 10 or so residents attending the public hearing Monday. Traffic, safety, lighting and simply being in the shadow of the law school were the complaints voiced.

Posted by Marcia Oddi on Tuesday, April 10, 2012
Posted to Indiana Law

Ind. Gov't. - "St. Joseph County may spend $132,000 on iPads, other improvements"

From Erin Blasko's report in the South Bend Tribune:

SOUTH BEND -- The county auditor plans to spend $132,000 on improvements and upgrades in his office and the offices of the county council and board of commissioners, including more than $13,000 on iPads, in an effort to save money and make the county more efficient and transparent in its operations.

The iPads will provide elected county officials and support staff remote access to budgets, state and local laws, meeting agendas, and other pertinent information, saving time and money, the auditor, Pete Mullen, said Monday.

The devices will remain the property of the county.

The plan, first presented to county officials in January, is outlined in a trio of bills now under consideration by the county council, which meets at 7 p.m. tonight on the fourth floor of the County-City Building.

The iPad portion is "$13,000 on 23 new iPads, including training and protective covers."

The ILB has had a number of earlier "iPad in government" stories, including:

My favorite, however, was not an iPad story, but a photo that accompanied a story yesterday in the Indianapolis Star, headed "Indiana Republicans eager to swoop up seats in House: Gains in House would empower party to push through agenda," and reported by Chris Sitich.

Here is the photo, captioned "Rep. Vanessa Summers, D-Indianapolis, uses her iPad to take video at the back of the Indiana House of Representatives on Wednesday, Jan. 25, 2012, when union workers protested discussion of the "right-to-work" bill.." It gives just of glimpse of the secondary impact that widespread use of iPads, with their audio and video tools, may have in future legislatures.

Posted by Marcia Oddi on Tuesday, April 10, 2012
Posted to Indiana Government

Ind. Gov't. - “This is three times now,” she said. “I can understand once, even twice – but the third time?"

That was a quote from an editorial yesterday in the Fort Wayne Journal Gazette, headed "Confidence tested by state errors." It puzzled me, I only knew of the two errors, in December and this month. Here was the full quote from that end of that editorial:

Fort Wayne City Controller Pat Roller said the aim is always to put forth the best budget possible, based on the best information. The state’s error had serious repercussions locally.

“It impacts our infrastructure budget – paving streets and roads. We didn’t replace any of our police cars,” she said. “Those are difficult decisions.”

Roller said she’s looking forward to distribution numbers she can rely on when creating a budget.

“This is three times now,” she said. “I can understand once, even twice – but the third time? This wouldn’t happen with the city of Fort Wayne’s accounts. We know where all of our money is.”

The governor has boasted of the administration’s financial acumen, but the disclosure of a second large accounting error sorely tests those claims. The upcoming audit should be conducted with an aim of complete thoroughness. Public confidence depends on it.

Today a FWJG story by Benjamin Lanka clears it up. Some quotes:
Fort Wayne and Allen County governments will each receive millions in unexpected revenue – possibly by today – thanks to a state error reported last week.

State officials on Thursday said a programming error cost local units of government $206 million in local option income tax revenue in 2011 and early 2012, meaning $15.6 million in unexpected revenue will be flowing to governments within Allen County this year. Auditor Tera Klutz on Monday released how that money is expected to be split among the different government units. * * *

The money comes at a needed time for local governments, which had been squeezed by property tax caps and lagging income tax revenue. Klutz called the announcement of the error bittersweet because while the money was good news, many governments across the state made difficult budgeting decisions – including layoffs – based on state revenue information.

“To learn that was inaccurate information was really tough,” she said. * * *

The state error also means local governments owe the state far less than originally projected.

In 2011, state budget officials told cities, towns and counties the state had overpaid them $500 million in local income tax revenue as a result of the recession and the process the state uses to estimate the payments.

After the error, that total debt was dropped to $150 million. Klutz said Allen County’s aggregate debt fell from $30 million to $1.4 million because of the error.

Counties that owe money to the state will see their future revenue remain flat, and the state will be reimbursed for any growth in income tax revenue until the debts are paid.

Klutz said Allen County’s debt should be erased by the end of this year, meaning units will realize any revenue growth starting in 2013.

“It is good news for local governments,” she said. “We won’t have to cut deeper next year. We should be able to sustain our current services.”

The FWJG's Tracy Warner has more in an editorial column today:
Many reports last week about the state failing to forward $206 million in tax revenues to local governments described it as the second recent major financial malfunction in state government. Just months ago, state officials “found” $320 million that had been collected but not tracked.

But as far as some Hoosier local government officials are concerned, last week’s mistake was the third accounting debacle in a little more than a year.

In February 2011, state officials said they had overpaid local governments $610 million over the previous three years. Officials blamed the overpayment on falling income tax revenue; the payments had been based on previous years’ collections.

Together, the three goofs top $1 billion – and no matter how you look at it, we’re talking real money.

One reason some local government officials feel stung: In their pursuit of tax caps a couple of years ago, Daniels and legislative leaders sharply criticized local governments, suggesting their officials were treating taxpayers’ money irresponsibly.

While state officials blame programming errors for the latest flub, let me remind them that just four years ago, the state was on the verge of collecting $6 million from Allen County taxpayers it was not due. Fortunately, the mistake was found – not by state officials but by Tera Klutz, then the chief deputy county auditor and now the auditor.

Posted by Marcia Oddi on Tuesday, April 10, 2012
Posted to Indiana Government

Monday, April 09, 2012

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

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

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

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

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

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

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

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

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

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

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

For publication opinions today (0):

NFP civil opinions today (2):

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

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

NFP criminal opinions today (4):

Justin Thomas v. State of Indiana (NFP)

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

Lonnie Johnson v. State of Indiana (NFP)

Mychael Nance v. State of Indiana (NFP)

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

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

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

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

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

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

The Order is signed:
Brent E. Dickson
Acting Chief Justice of Indiana

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

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

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

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

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

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

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

Ind. Decisions - Transfer list for week ending April 5, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Feb. 24, 2012 list.]

Here is the Clerk's transfer list for the week ending Thursday, April 5, 2012. It is one page (and 8 cases) long.

One transfer was granted last week:

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

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

Dan Carden reports today in the NWI Times:

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

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

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

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

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

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

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

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

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

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

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

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

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

A sidebar links to the 2012 enrolled acts and the related Supreme Court opinions (it uses the term "overturn", which may not be entirely accurate, the ILB prefers "revises statutes in response to ..."):
SEA 1 -- Barnes v. State

SEA 97 -- Moore v. State

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

SEA 298 -- Citizens State Bank v. Countrywide

ILB: Note that in the opinion on rehearing in Barnes, the Court in effect invites that General Assembly to act:
This also reflects the basis for our holding about defenses available to criminal defendants charged with violence against police officers: the ruling is statutory and not constitutional. The General Assembly can and does create statutory defenses to the offenses it criminalizes, and the crime of battery against a police officer stands on no different ground. What the statutory defenses should be, if any, is in its hands.
In Moore the opinion states:
Whether conduct proscribed by a criminal law should be excused under certain circumstances on grounds of public policy is a matter for legislative evaluation and statutory revision if appropriate. The judicial function is to apply the laws as enacted by the legislature. We decline the defendant's request to reverse her conviction on public policy grounds.
SEA 298 re Countrywide is the subject of this post from yesterday, quoting the Indiana Commercial Foreclosure Law blog.

Finally, in Avon, the Court points out:

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

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

Catch-up: What did you miss over the weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?

But first, didn't you check the ILB a lot last week? Then please make the move to supporting the ILB, today!

From Sunday, April 8, 2012:

From Saturday, April 7th, 2012:

From Friday afternoon, April 6th, 2012:

Posted by Marcia Oddi on Monday, April 09, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

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

Friday, April 20th

Webcasts of Supreme Court oral arguments are available here.


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

Monday, April 9th

Tuesday, April 10th

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

Monday, April 16th

Tuesday, April 17th

Thursday, April 19th

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 09, 2012
Posted to Upcoming Oral Arguments

Sunday, April 08, 2012

Ind. Courts - "A ‘voice’ for stalking victims: Women tell of fear, uncertainty, push for system changes"

Rebecca S. Green has this long story in the Sunday Fort Wayne Journal Gazette. A sample:

Advanced computer and Internet technology – and how much we all depend on it – makes it easier for stalkers and harder for law enforcement, [Rebecca Dreke, senior program associate for the National Center for Victims of Crime] said.

“(Technology) gives them tremendous access, in the most horrendous way,” Deke said, adding that the laws have not kept up with the technology.

Hacking into a computer, or email, gives stalkers access to all kinds of personal data, such as banking and social networking information.

“Then there’s no place safe for that victim. Nothing was completely secure or safe because of all those things he did,” Dreke said.

Posted by Marcia Oddi on Sunday, April 08, 2012
Posted to Indiana Courts

Ind. Gov't. - More on "Daniels legacy on line with Ind.'s $205M tax error" - metrics and accountability

"Expect more explaining from the state on revenue" ius the heading to Maureen Hayden's CNHI story today, here appearing in the New Albany News & Tribune. The story concludes:

[T]here may be more revelations about the state revenue department in the months to come. Daniels, backing off on his initial resistance to an outside auditor, has now ordered an independent look at how the department keeps it books.

Ed Feigenbaum, the well-respected publisher of the Indiana Legislative Insight newsletter, reported in a recent issue that state auditors have already found other problems in the department that have yet to be widely revealed.

Feigenbaum reported the staff at the State Board of Accounts found the Department of Revenue was unable to account for all the payments that make up a $47 million balance in a collections fund. They also found that the DOR duplicated, overstated or understated revenues in other accounts.

Those problems may not come close to the half-billion dollar blunders that have been publicly reported so far. But as Daniels himself has often preached, every tax dollar needs to be accounted for by the collectors and spenders of those tax dollars. This story isn’t over yet.

ILB: Recalling the governor's strong push for "metrics" and accountability when he entered office in 2005, the ILB located this entry from Aug. 19, 2005:
Ind. Gov't. - Governor Daniels releases 6-month progress report

Here is a link to the Governor's press release. Here is a direct link to the 61-page report itself.

The 2-page report on IDEM begins on page 26 of the pdf document (or the page numbered "23" in the document itself).

This link leads to a 31-page document titled "Agency Performance Metrics."

Unfortunately, the links to the 61-page, 6-month progress report and to the 31-page document on performance metrics no longer are operative. (Maintaining documents for permanent public access might be a good goal to measure, just sayin')

But the Aug. 19, 2005 press release is still available. It begins:

INDIANAPOLIS (August 19, 2005) – Governor Mitch Daniels issued a six-month performance report for state government today that establishes goals for accountability for 30 of the largest state agencies and identifies savings of more than $150 million achieved or under way. The report, the first of its kind to provide detailed information to Hoosiers about how state government is performing, also summarizes discoveries, successes and shortcomings by agency.

This is the first time Indiana state government has created a mechanism to measure and report on agency performance and results. * * *

“Government is not a business, but it can be run in a more businesslike fashion,” said Daniels. “Being clear about objectives, measuring concrete progress toward them, and insisting upon results and performance is essential to using taxpayer dollars well.”

Metrics have been set for 30 agencies, with measurements for core mission areas categorized as red, yellow or green, with green representing superior performance, yellow for needs improvement, and red for unsatisfactory performance. In the first report, more than 85 percent of the measures fall into the red or yellow areas. All executive branch agencies will have performance goals by June 2006.

“There may be some areas where it will take years and years to turn the corner. True reform takes years, and we will continue to provide these reports periodically pursuant to our commitment to better government and greater accountability,” said the governor.

Posted by Marcia Oddi on Sunday, April 08, 2012
Posted to Indiana Government

Ind. Law - 3-part series on abandonment of mortgaged property

Attorney John D. Waller of the long-time Indiana Commercial Foreclosure Law blog, on March 23rd posted "Indiana Legislation, 2012: Part 1 Of 3 – Abandonment Of Mortgaged Property." This was followed on March 29th by "Indiana Legislation, 2012: Part 2 Of 3 – Obscure Redemption Language Remains." Part 3 has not yet appeared ...

Posted by Marcia Oddi on Sunday, April 08, 2012
Posted to Indiana Law

Ind. Gov't. - "Daniels legacy on line with Ind.'s $205M tax error" - a recap

Here are a number of ILB entries from Dec. 2011 on "State finds $320 million it didn't know it had."

On April 5th the ILB tweeted this WRTV story, headed "Ind. Revenue Director Resigns Over $205M Mistake: Tax Collections Improperly Went To State, Not Local Units."

There have been many subsequent stories, including the Tom LoBianco AP story referenced in the heading to this entry.

Niki Keely of the FWJG had a long story Friday, April 6th. The JG ran an editorial today headed "Confidence tested by state errors," that concludes:

The governor has boasted of the administration’s financial acumen, but the disclosure of a second large accounting error sorely tests those claims. The upcoming audit should be conducted with an aim of complete thoroughness. Public confidence depends on it.

Here is Mary Beth Schneider's long story in the Friday Indianapolis Star, that begins:

For the second time in only four months, the state is admitting it made a massive revenue error.
See also Maureen Hayden's (CNHI) breaking story April 5th headed "$206 million coming to counties; three state officials resign ."

Posted by Marcia Oddi on Sunday, April 08, 2012
Posted to Indiana Government

Environment - Merger of pollution boards worries some

Supplementing the commentary on HEA 1002 in a March 26th ILB post, a story by Rick Callahan of the AP which appeared in a number of Indiana papers this weekend reports:

INDIANAPOLIS — A new state law that merges three longtime rule-making boards into a single panel is stoking concerns among business and environmental groups about what the shift could eventually mean for Indiana’s environmental regulations.

The Indiana Chamber of Commerce and the Hoosier Environmental Council — groups often on the opposite sides of legislative issues — both opposed the bill, though for different reasons.

Environmentalists fear the shift could lead to weaker air, water and land pollution rules, while the chamber worries a future administration could use the single panel to impose tougher rules costly to industries.

The government streamlining legislation, which Gov. Mitch Daniels signed into law last month after it sailed through both chambers, disbands about 20 state panels and commissions. Some of those spiked groups, such as a water shortage task force, hadn’t met in years.

But Indiana’s water pollution control board, air pollution control board and solid waste management board — panels with a dozen or more members each — meet several times a year to discuss and vote on rules intended to protect the state’s air, water and land from pollution.

Starting next January, however, those three groups will be history and the work of turning state law and federal policy into environmental rules will be overseen by the new Environmental Rules Board, which will include 16 members appointed by the governor’s office.

Both environmentalists and the chamber worry that the new board won’t have the technical proficiency to make informed decisions on the wide-ranging proposals the three current boards now oversee. They also worry the change will give the Indiana Department of Environmental Management greater sway over those decisions.

In particular, they fear the single board will lack the expertise that exists on the three current boards. * * *

[Opponents] said they plan to urge a summer study committee to recommend that the state search for money to fund a technical adviser for the new board who is outside of IDEM’s control to help guide its members through complex issues.

ILB: Good luck with that, IMHO. The current boards' laws call for a technical secretary for each board, and the boards have never been able to keep these positions filled.

In years past, there has always been a push from some to merge the boards, and perhaps make them full-time, with staff -- a kind of "shadow IDEM." These ideas have never made any progress, until this year when half-a-loaf passed. Now this planned summer effort to establish a position paying enough to attract someone qualified to independently counsel the board members, a person who also is acceptable to all interest groups, seems fraught with difficulties. Note also that the law requires an individual who is acceptable to the governor:

The board shall select, from a list of three (3) qualified individuals recommended by the governor, an independent third party who is not an employee of the state to serve as technical secretary of the board.
All the same also holds true for the appointment of a board counsel.

Posted by Marcia Oddi on Sunday, April 08, 2012
Posted to Environment | Indiana Government | Indiana Law

Ind. Law - "Stand your ground" in Kentucky, Indiana and Florida

Adding to a long list of earlier ILB entries on "stand your ground" legislation, here is a lengthy story today from Andrew Wolfson of the Louisville Courier-Journal, headed "'Stand your ground' gun laws, like that of Florida's, adopted in Kentucky, Indiana: 21 states allow 'stand your ground' use of deadly force in self-defense." Some quotes:

“No retreat” or “stand your ground” laws — enacted during the past few years in 21 states, including Kentucky and Indiana, at the behest of the National Rifle Association — have come under fire recently in the wake of a high-profile case in Sanford, Fla., that left an unarmed teenager dead.

In that case, local authorities cited Florida’s statute when initially saying that crime-watch volunteer George Zimmerman couldn’t be charged with the Feb. 26 shooting death of Trayvon Martin.

Zimmerman’s lawyer has said his client was acting in self defense. State and federal officials are investigating.

But the case has set off a firestorm among those who argue that gun laws such as those in Florida, Kentucky and Indiana make it too easy for anyone to pull the trigger, then avoid criminal charges by arguing self-defense. * * *

Indianapolis police brought no charges against a father who in 2008 strangled a naked man who had broken into his daughter’s room wearing only a mask and latex gloves and carrying a rope, condoms and a knife, the Indianapolis Star reported. And this year, Marion County Prosecutor Terry Curry, without taking the case to a grand jury, did not charge a Kroger manager who fatally shot a man trying to rob the store.

Prosecutors and defense lawyers in Kentucky said that the law makes it more likely that a case is never brought, rather than requiring a defendant to argue self-defense at trial.

Indiana state Rep. Linda Lawson, a former Hammond police captain, says she hopes the Trayvon Martin shooting prompts states to give “stand your ground” laws a second look. But the measure passed overwhelmingly in the Indiana General Assembly; she was one of only 23 to oppose it in 2006.

The list of earlier ILB entries on "stand your ground" includes stories from 2006, when the law was first passsed, and an interesting 2008 entry with additional links.

Posted by Marcia Oddi on Sunday, April 08, 2012
Posted to Indiana Law

Ind. Decisions - More on "Ruling gives I-69 crews immediate access to Monroe County property to survey land for construction: Judge says tree-cutting ban presses INDOT to fell trees before April 1"

Supplementing this ILB entry from April 1st, the Pittsburgh Post-Gazette today has a story by Erich Schmwartzel that reports:

The Indiana bat weighs less than an ounce and is so small it is able to nest in the spaces between a tree trunk and its rotting bark.

It can also do what class-action lawsuits and full-throated protesters haven't been able to: stop Marcellus Shale drilling.

Energy firms are quizzed daily on their industry's impact on air and water used by humans, but the companies' rapid development must also take into account less sentient creatures.

Does that Greene County property sit atop bountiful shale gas reserves? Better make sure the endangered shortnose sturgeon doesn't swim in a nearby stream. Think that pasture would make a great place to lay pipeline? Check for the beleaguered snow trillium first.

Tracking Pennsylvania farmland for sensitive communities is part of the state permitting process for a Marcellus well, and it has fueled a cottage industry of ecological consultants trolling the hills for threatened wildlife and foliage to help companies avoid costly fines. The inspection process, which sometimes takes longer than actual drilling, has inspired some unlikely partnerships between gas firms drilling underground and the advocates interested in the life that's above it.

Later in the long Pittsburgh Post-Gazette story, and paralleling the earlier Bloomington H-T story (which was headed "Indiana bat dictates I-69 work schedule"):
Forget worries about lease expirations. Chesapeake Energy hustled to complete a tree clearing in Beaver County last month before an eight-month moratorium went into effect allowing the Indiana bats to hibernate in peace. The Oklahoma City driller filed an injunction in district court forcing the tree-clearing to make the hibernation deadline or risk having to renegotiate the area's leases.

Posted by Marcia Oddi on Sunday, April 08, 2012
Posted to Environment | Indiana Decisions

Environment - "New Indiana livestock farm rules focus of meetings"

From a brief story in the Lafayette Journal Courier:

The Indiana Department of Environmental Management has scheduled four open house-style meetings around the state to answer questions farmers have about new regulations affecting confined livestock operations.

The first such meeting is Monday in Flora.

Area farmers who own confined feeding operations or concentrated animal feeding operations (CFOs and CAFOs) who have questions about the new regulations are encouraged to drop in.

New confined feeding regulations were approved by the Indiana Water Pollution Control Board in November and will take effect July 1.

The rule changes eliminate the "general permit" category for farms regulated by federal farm rules.

Farms with a general permit must determine if they need to be covered by Indiana's CFO permit or a federal "Individual Permit."

The rule changes place restrictions on land application of manure based on phosphorus limits and land application to frozen or snow covered ground.

IDEM staff at the open houses will answer questions and assist farmers and operators in transitioning their permits to make sure they comply with the new rules.

"This is a major update," said Sen. Brandt Hershman, R-Buck Creek. "It is a big deal in that it restricts ground application of manure."

The open house will be from 2 to 8 p.m. Monday at the Carroll County 4-H Building, 102 Fourth St. in Flora.

Three other open houses will be held Thursday in Huntington, April 16 in Greensburg, and April 18 in Huntingburg.

Here is the original press release which is the basis of the story.

Posted by Marcia Oddi on Sunday, April 08, 2012
Posted to Environment

Courts - "Though there was a will, Fifth Third found a way to save Boots"

Becky Yerak reported this probate/animal law-related story April 4th in the Chicago Tribune - here are some quotes:

Boots, an 11-year-old cat from Berwyn, has narrowly avoided using up the last of her nine lives, thanks to trust officers at Fifth Third Bank who resisted carrying out a death sentence stipulated in the will of the cat's owner.

Georgia Lee Dvorak died recently at age 76. In a will she drew up more than 20 years ago, she stated that any cat or cats that she owned at the time of her death be euthanized “in a painless, peaceful manner” by a veterinarian’s lethal injection.

But trust officers at Fifth Third Bank, which was appointed to manage Dvorak’s estate, were squeamish about carrying out those terms on Boots. Dvorak was not survived by any relatives.

So on Monday, Fifth Third asked a Cook County probate court to set aside that provision of Dvorak’s 1988 will as it had found a shelter to take Boots.

“It would violate public policy to euthanize a healthy housecat where an appropriate shelter has been identified,” lawyers from Spain Spain & Varnet plead to the court on behalf of Fifth Third.

Fifth Third’s lawyers pointed out that Dvorak asked that most of her estate -– estimated at nearly $1.4 million -- go to animal-related causes. That was evidence of her commitment to the humane treatment of animals, they said. * * *

The lawyers for Fifth Third also cited precedents from court cases elsewhere, as they said no Illinois court had ruled on the issue before.

A Pennsylvania court invalidated the provisions of a will directing that any dog that a person might have at the time of their death be destroyed. The person in that case left behind two Irish setters, but, after hearing evidence of the deceased’s affinity for his dogs, that provision of the will was void, partly because it was “against the public policy” of Pennsylvania.

A Vermont court ruled similarly over a deceased resident’s horses, and a Canadian court did likewise when a deceased individual asked that his horses be "shot by the Royal Canadian Mounted Police and then burned."

On Monday in a Cook County probate court, Judge Susan Coleman allowed Fifth Third to find more humane arrangements for Boots. * * *

Boots had been on kitty death row for months.

Dvorak died Dec. 24 of sepsis and pneumonia, according to her death certificate. For the last month of her life, she lived at a Burbank nursing home and died in an Oak Lawn hospital, the death certificate showed.

Since then, former neighbors Wayne and Sandra Buturusis have been feeding Boots in the Berwyn home where Dvorak lived before moving into the Burbank nursing home. Probate court records included an affidavit from Wayne Buturusis, who was her neighbor for 10 years. He stated that he believed that Dvorak would have preferred trying to find Boots a suitable home rather than euthanize her.

In his affidavit, Buturusis described Boots as spayed and in good health. “She is an indoor cat who is very playful and loves attention,” he said in his affidavit.

He said Boots had been a stray that Dvorak rescued 18 months before she died. * * *

Fifth Third said it learned of Boots’ plight in late February from Nick Grapsas, public administrator for Cook County. His office’s duties include administering estates for people who die with no next of kin.

Posted by Marcia Oddi on Sunday, April 08, 2012
Posted to Courts in general

Ind. Gov't. - "No flurry of late pardons: Daniels vows to stay frugal"

Kudos to Niki Kelly and the Fort Wayne Journal Gazette for a long Sunday story on a little reported topic, Indiana gubernatorial pardons. Some quotes:

During his more than seven years in office, 200 pardon applications have flowed to the governor. Of those, the board gave nonbinding nods to 65 and the governor granted just 45, or 23 percent of those requested.

Only four of those were related to crimes committed in northeast Indiana.

“I ask myself which is the greater mistake. To give one that wasn’t warranted or to decline one that was, and I can argue with myself on that,” the governor said. “These are hard.”

With about eight months left in his tenure, the parole board is piling up a list of pardons for the governor to review.

But Daniels said not to expect any mass redemption a la then-Mississippi Gov. Haley Barbour, who issued 198 pardons in the final days of his term this year.

Instead, Daniels said he hopes to act on his final pardons by October.

“There’s not going to be a going-out-of-business sale here,” he said. “I don’t want to be doing any at the eleventh hour. I wouldn’t want them tainted, frankly. [ILB - see footnote]

“I just think that it’s a really serious decision and you want the person who receives the pardon and anybody they deal with to know that it was meritorious, wasn’t done impulsively or hastily or emotionally.”

A pardon is executive forgiveness for a crime that removes penalties and disabilities to a person while also restoring civil rights, essentially making a person a new man or woman.

They are granted only to those who have completed their sentence, and of10 years later. It is not the same as commuting a sentence, where a person is let out of jail before a sentence is satisfied.

“We try to explain it’s not a magic bullet,” said Randall Gentry, vice chairman of the Indiana Parole Board. “A pardon will provide some people a peace of mind about a mistake they made when they were young.

“They all have their own unique twists and turns.” * * *

But a pardon doesn’t mean the conviction is automatically removed from someone’s record – a common misconception the parole board explains at each hearing.

A person’s conviction still shows up on criminal background checks, just with a notation about the gubernatorial pardon.

A man Daniels pardoned in 2005 – a third-year law student – sued to have his robbery conviction and arrest records expunged after the pardon.

The Indiana Court of Appeals ruled in 2007 that courts must, upon request, expunge the conviction records related to a pardon. But it said state law and the Indiana Constitution don’t extend to evidence of an arrest.

A new law that legislators passed in 2011 is likely a quicker, more efficient, way to avoid problems with employment checks. It allows those convicted of nonviolent Class D felonies or misdemeanors to restrict access to their record when the person has remained crime-free for eight years.

Police still have access to the records, but employers can no longer see the history under the law, and Hoosiers can check “no” on job applications that ask about arrests and convictions. * * *

Daniels has created his own system for pardons. He starts with nature of offense – staying away from virtually anything involving violence.

The majority of those he has granted – about 25 – have involved stealing; either theft, burglary, receiving stolen property or robbery. A handful of cases have involved possession of drugs, a few drunken driving, a few arson and a few other offenses.

Daniels also considers the amount of time that has passed since the offense – usually considering requests where a great deal of time has passed.

Four of his pardons date to crimes committed in the 1960s, with most crimes coming in the 1980s and 1990s. * * *

One of the governor’s final tenets is that the person has to have stayed out of trouble, and often lived an exceptional life, showing much character.

He said some people seeking pardons had served in the military or become missionaries, drug counselors, teachers and firefighters, among other callings.

____________

ILB Note: This is the second time within four days that the governor has been quoted using a form of the word "taint." See this April 4th quote from the NWI Times:

"Those who are eager to see it [at least one woman on the Supreme Court] would serve their cause better by not making a whole lot more noise, because it would taint the choice," Daniels said.

Posted by Marcia Oddi on Sunday, April 08, 2012
Posted to Indiana Government

Friday, April 06, 2012

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

Some quotes from Mark Wilson's story yesterday in the Evansville Courier & Press:

EVANSVILLE — An approaching change in an Indiana law that lowers the cutoff age for receiving child support has judges bracing for a flurry of questioning phone calls and petitions to modify support orders.

"I think we are going to see a run on the courthouses," said Warrick County Superior Court Judge Robert Aylsworth.

A law passed in the Indiana General Assembly's 2012 session lowers age emancipation from 21 to 19 but exempts support for education expenses. It takes effect July 1 and applies to all child support orders, according to state Sen. Brent Steele, R-Bedford, who wrote the bill. * * *

"This thing just kind of blew through. I think we are going to get hit with an enormous amount of petitions," Aylsworth said. "It is an enormous change. That two years, it is huge."

However, it also brings Indiana in line with the vast majority of states. Steele said only two states and the District of Columbia currently extend child support obligations to 21.

"Indiana has been in a very small minority of states that don't terminate child support at 18," Aylsworth said.

The biggest question among attorneys and judges so far has been whether it is retroactive to all child support cases, said Vanderburgh Superior Court Judge Richard D'Amour.

"My understanding is it will act retroactively to all cases. I think there will be some confusion in the public. On its face, the statute isn't as clear as possibly it could be," D'Amour said. "I think there will be a lot petitions in the court to modify their child support, when in fact it happens automatically. I wish they had been a little clearer. This is going to cause a flurry of activity for lawyers and the courts."

Steele, who is a practicing attorney, said that it was his interpretation of the law and his intention that it be retroactive. "It's my opinion that it applies to everyone," he said.

D'Amour, who is on the Indiana Judicial Conference's domestic relations committee, said the law's wording — which says "the duty to support a child" — could lead to challenges when a support order specifically says the paying parent must pay until 21.

"Isn't that a contract between the parents? How can the Legislature invalidate contract law? They can't," he said. "This is going to go up (to the Court of Appeals)."

Steele said that may be the case for those types of orders, but that most such decrees are more generally worded. * * *

He said the law was worded to exempt postsecondary education support. Children receiving child support under orders that went into effect before the July 1 date can still file petitions for their educational needs until 21.

However, those with support orders effective after June 30 must file petitions for educational needs before 19.

The new law is SEA 18.

Posted by Marcia Oddi on Friday, April 06, 2012
Posted to Indiana Law

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

In Copeland v. Penske Logistics (SD Ind., Young), a 6-page opinion, Chief Judge Easterbrook writes:

Penske Logistics provided transportation services for the Indianapolis Star newspaper between 1999 and 2009. When the end of the contract approached, the Star put the work up for bids, and Penske Logistics lost. It informed the employees’ union (Teamsters Local 135) that it would cease operations on May 19, 2009. The collective bargaining agreement between Penske Logistics and the Union expired two days later. As the Star was Penske Logistics’ only customer, the business itself would be discontinued. * * *

In this court plaintiffs advance two lines of argument. One is that Penske Logistics failed to give them all benefits available under its contract (the “logistics agreement”) with the Star. Plaintiffs describe themselves as third-party beneficiaries of the logistics agreement. One paragraph in the logistics agreement provides that, if Penske Logistics agrees to provide its workers with severance benefits should it lose the business (as it did), the Star will cover the expense of these benefits. Plaintiffs say that, because Penske Logistics could have provided more generous benefits and shifted the cost to the Star, it was required to do so. The other line of argument is that the Union did not bargain hard enough with Penske Logistics to achieve extra benefits and should be held liable on that ground. * * *

To the extent the district court granted summary judgment to the defendants on the hybrid contract/DFR claim, the judgment is affirmed. With respect to the plaintiffs’ claims based on the logistics agreement and the Union’s asserted failure to bargain harder for extra severance benefits, the judgment is vacated and the case is remanded with instructions to dismiss for lack of subject-matter jurisdiction.

Posted by Marcia Oddi on Friday, April 06, 2012
Posted to Ind. (7th Cir.) Decisions

Courts - "Confronting Supreme Court fact finding"

Supplementing this ILB entry from March 22nd, that quoted from an article titled "CAUTION: Now Entering Grey Area: Indiana Judges’ Use of Internet Information," here from SCOTUSblog is an introduction to a paper titled "Confronting Supreme Court Fact Finding." The introduction begins:

Supreme Court Justices routinely answer factual questions about the world – such as whether violent video games have a harmful effect on child brain development or whether a partial birth abortion is ever medically necessary. The traditional view is that these findings – often called “legislative facts” – are informed through the adversary system: by reviewing evidence on the record and briefs on appeal. Routinely, however, the Justices also engage in what I call “in house” fact finding. They independently look beyond the briefs and record to answer general questions of fact, and they rely on their discoveries as authorities. To be sure, judges have always done this. We have all heard the stories of Justice Blackmun holed up in the medical library at the Mayo Clinic during the summer of 1972 studying abortion procedures. And the Federal Rules of Evidence contain no rule restricting it; the rule about judicial notice specifically exempts legislative facts from its scope.

But times have changed. The world has recently undergone a massive revolution in the way it receives and evaluates information. No longer do Justices need to trek to the library to look up factual questions. Instead they can access virtually infinite amounts of factual information at the click of a mouse. If the Justices want more empirical support for a factual dimension of their argument, they can find it easily and without the help of anyone outside of the Supreme Court building.

My article, Confronting Supreme Court Fact Finding, discusses how that change in technology has and will affect the Court’s fact-finding practice.

See this August 30, 2009 ILB entry for an earlier compilation of much more on this topic.

Posted by Marcia Oddi on Friday, April 06, 2012
Posted to Courts in general

Ind. Courts - Check out final summaries of 2012 acts of interest to the judiciary

Check out the final (April 5th) installment of the Legislative Update for the 2012 legislative session, from The Indiana Judicial Center. This final legislative update contains summaries of select bills or portions of bills of interest to the judiciary that were signed into law in the 2012 legislative session.

Posted by Marcia Oddi on Friday, April 06, 2012
Posted to Indiana Courts | Indiana Law

Thursday, April 05, 2012

Ind. Decisions - Court of Appeals issues 7 today (and 3 NFP)

For publication opinions today (7):

GMAC Mortgage, LLC v. Ronald Glenn Dyer

Sharon Wright and Leslie Wright v. Anthony E. Miller, D.P.M. and Achilles Podiatry Group

Douglas W. Fancil v. State of Indiana

William J. Harness and Bridget V. Harness v. Tabassum Parkar, Arshad Husain, John Mattingly Homes, Inc., and Lakeridge Crossing Homeowners Association, Inc.

Amy and Steven Cerajewski v. Erin and Robert Kieffner

James Gagan, Fred Wittlinger, Jack Allen and Eugene Deutsch v. C. Joseph Yast

Joshua Alford v. State of Indiana

NFP civil opinions today (0):

NFP criminal opinions today (3):

Joshua J. Sharp v. State of Indiana (NFP)

Isaac Jones v. State of Indiana (NFP)

Debra A. Edwards v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 05, 2012
Posted to Ind. App.Ct. Decisions

Vacancy on COA 2012 - Applications available for upcoming COA Judge Darden vacancy; Justice Sullivan vacancy process to occur later

From a Court news release:

APPLICATIONS AVAILABLE FOR JUDICIAL POSITION ON THE INDIANA COURT OF APPEALS

A position on the Indiana Court of Appeals will be available when Judge Carr Darden retires this summer. Judge Darden was named to the Court of Appeals by Governor Evan Bayh in 1998. His retirement creates an opening on the fifteen-member court. Applications for the position are available online. Applications are due May 9, 2012.

The seven members of the Indiana Judicial Nominating Commission will search for Judge Darden’s replacement. The Commission includes three lawyers elected by their peers and three citizen-members appointed by the Governor. Acting Chief Justice Dickson will chair the Commission.

The Commission will conduct initial public interviews of qualified candidates in Indianapolis on May 15- 17, 2012 followed by second interviews on June 4-5, 2012. After the public interviews and Commission deliberations in an executive session, the Commission will publically vote to send the three most qualified names to Governor Mitch Daniels. The Governor makes the appointment.

Those interested in applying to be the state’s next Court of Appeals Judge may contact Counsel for the Indiana Judicial Nominating Commission, Adrienne Meiring, at 317-232-4706. A candidate must be an Indiana resident who resides in the Court of Appeals Second District (information on the districts can be found here). Candidates must have been a member of the Indiana bar for ten years or an Indiana judge for five years. The annual salary and allowances for a Court of Appeals Judge is $152,015. The Court of Appeals operates in three-judge panels which rotate three times a year. Together, the judges of the Court of Appeals write approximately 2,500 opinions each year.

On April 2, 2012 Supreme Court Justice Frank Sullivan, Jr. announced his retirement from the Supreme Court. His exact retirement date has not been set, but will take place during the summer. The Commission has not determined a timeline for the search to find Sullivan’s successor. The effort to find the 108th Justice of the Supreme Court will take place separately from the Commission’s consideration of the Court of Appeals vacancy.

Posted by Marcia Oddi on Thursday, April 05, 2012
Posted to Vacancy on COA 2012 | Vacancy on Supreme Court 2012

Vacancy on the Supreme Court 2012 - "Frank Sullivan’s unexpected resignation [is a] big loss for the court"

The Fort Wayne Journal Gazette editorial today:

Frank Sullivan’s unexpected resignation from the Indiana Supreme Court did more than add to the swift and surprising change in the court’s makeup. Sullivan is not only one of the best legal minds in the state, but he has also been at the forefront of upgrading court technology to make the judicial system more efficient and more accessible to the public.

Because Sullivan is the third justice to announce his resignation in less than two years, his exit later this year will result in a new majority on the five-member court. Though Hoosiers will probably not see dramatic change – the court has a refreshing reputation of being only minimally motivated by politics and ideology – three new justices will undoubtedly make their own unique mark on the state’s judicial system. Some of their rulings will affect all Hosiers.

Though he was state budget director for Democratic Gov. Evan Bayh, who later appointed him to the court, Sullivan did not automatically take the liberal side of an argument, as some Democratic appointees to the U.S. Supreme Court have. Sullivan instead had a reputation for independence, as well as for asking tough, penetrating questions of the lawyers who appeared before the court.

For example, Sullivan joined the four other justices in unanimously ruling that Democrat Vop Osili would not be awarded the secretary of state’s position in the wake of Charlie White’s legal troubles, a decision that had the effect of helping Republicans. Sullivan took a conservative position in a 3-2 ruling in 2002 that upheld drug testing of high school students who participate in extracurricular activities.

And in a 2003 abortion ruling that could be considered part liberal, part conservative, Sullivan wrote a decision that concluded Medicaid was not required to pay for all abortions that are medically necessary but must pay for abortions in pregnancies that create a serious risk of substantial impairment of the woman – a subtle difference. That decision, particularly, showed Sullivan’s ability to look past ideology to the law’s nuances.

Sullivan was also a driving force behind the state’s Odyssey court records system, which helps counties be more efficient by computerizing court records and gives citizens the ability to look up court cases online.

His retirement announcement was the most surprising of the three relatively recent court departures. Indeed, if Sullivan made any news this spring, it seemed more likely that he would be named chief justice after Randall Shepard retired.

At 62, Sullivan could have multiplied his salary by going into private practice.

Instead, he will become a law professor at Indiana University’s law school in Indianapolis.

His departure should leave Gov. Mitch Daniels with no excuses to finally appoint a woman to the court, one of just two in the nation with no female justice.

Whomever Daniels appoints would do well by striving to meet the standard of inquiry and independence that Sullivan set.

Posted by Marcia Oddi on Thursday, April 05, 2012
Posted to Vacancy on Supreme Court 2012

Law - "Two of America's best-known companies, Coca-Cola and PepsiCo, have dropped their memberships in the American Legislative Exchange Council (ALEC)"

NPR's Morning Edition has the story this morning, reported by Peter Overby and headed "Boycotts Hitting Group Behind 'Stand Your Ground.'" It begins:

Two of America's best-known companies, Coca-Cola and PepsiCo, have dropped their memberships in the American Legislative Exchange Council, a low-profile conservative organization behind the national proliferation of "stand your ground" gun laws.

ALEC promotes business-friendly legislation in state capitols and drafts model bills for state legislatures to adopt. They range from little-noticed pro-business bills to more controversial measures, including voter-identification laws and stand your ground laws based on the Florida statute. About two-dozen states now have such laws. * * *

Some of the most controversial ALEC efforts are good examples of how the organization works.

In 2005, lawmakers and lobbyists took Florida's brand new stand your ground statute and turned it into model legislation, which produced a surge of similar laws in other states.

Later, ALEC did the same thing with immigration laws. Its model was the unusually tough bill from Arizona.

House Speaker John Boehner, R-Ohio, was once an ALEC member. "Not only does it bring like-minded legislators together, but the private sector engagement and partnership in ALEC is really what I think makes it the organization that it is," Boehner told the group in 2009.

And private sector engagement is definitely what makes ALEC financially viable.

State legislators pay annual dues to belong, but that makes up only about 1 percent of the organization's $7 million budget. Corporate members account for almost all the rest.

Pushing For Transparency

Until recently, ALEC was best known for its volumes of pro-business legislation: bills to weaken labor unions, as in Wisconsin, to privatize government operations and to reduce regulation.

But this new anti-ALEC campaign comes at a time when some investors have already been pushing for more transparency on corporate political activities.

See also yesterday's ILB post on New Jersey stories about ALEC.

Posted by Marcia Oddi on Thursday, April 05, 2012
Posted to General Law Related

Ind. Courts - More on "State audit questions Clark court's fees"

Updating yesterday's ILB entry, Braden Lammers has a very long and detailed story today in the Jeffersonville News & Tribune. A sample:

Former Superior Court No. 3 Judge Steve Fleece offered a series of responses to the audit report claiming he did not violate Indiana Code.

“Many of the board’s legal conclusions are, in my opinion, flagrantly wrong,” he wrote. “Even if the board were right in all of its critical conclusions, where has the board been for the last 24 years while this same service was provided, these same fees were charged and these types of expenditures were made? None of the financial activity [allegedly] unrelated to the alcohol and drug services program has been done in secret. All of the financial activity referred to has been done openly ... The records of all such transitions have been open to inspection by the appropriate regulatory authority, the Indiana Judicial Center, which has continued to recertify the Clark County Alcohol and Drug Services Program as being in compliance over a period of decades.”

Tammy White, county office supervisor for the Indiana State Board of Accounts, said audits commonly look at the highest risk areas and had not previously examined the fund.

“I guess the main reason is an audit is not looking at everything,” she said. “It finally got big enough to make substantial disbursements.”

Posted by Marcia Oddi on Thursday, April 05, 2012
Posted to Indiana Courts

Wednesday, April 04, 2012

Court - TaxMasters (yes, you've seen their ads on cable) files for bankruptcy

Alex Weprin of Mediabistro has the story, headed "TaxMasters Bankuptcy Screws CNN, Fox News, MSNBC."

Posted by Marcia Oddi on Wednesday, April 04, 2012
Posted to Courts in general

Vacancy on Supreme Court 2012 - "Those who are eager to see it would serve their cause better by not making a whole lot more noise, because it would taint the choice"

That is a quote from Dan Carden's story posted today on the NWI Times site. The brief story is headed "Demands for female Supreme Court justice won't influence Daniels' pick." It begins:

INDIANAPOLIS | Gov. Mitch Daniels will not deviate from his criteria of merit, qualifications, principles and temperament in selecting Indiana's next Supreme Court justice, even as pressure grows to appoint a woman to the state's high court.

The Republican governor said Tuesday he doesn't need anyone to remind him Indiana is one of three states without a female Supreme Court justice but said he won't appoint a woman just to appoint a woman.

"Those who are eager to see it would serve their cause better by not making a whole lot more noise, because it would taint the choice," Daniels said. "Beyond some point it would discredit the person I pick if it looked like it was purely political or an appeal for cheap points."

Posted by Marcia Oddi on Wednesday, April 04, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - "A federal court ruling Friday means the town of Crothersville and its water and sewer utilities violated a couple’s constitutional right to due process when their utilities were cut off for nonpayment in April 2010."

Dan Davis has the story in at Seymour/Jackson County Trib Town:

That ruling from U.S. District Judge Sarah Evans Barker also means other town residents may have had their rights violated, attorney Steve Shane of Newport, Ky., said Monday.

Shane and attorney Stephen R. Felson of Cincinnati are representing Melanie J. Wayt and Walter G. Wayt against the town and a Crothersville man selling them a Howard Street residence on contract.

The ruling on a number of summary judgment requests also means the Wayts’ lawsuit can proceed to trial.

“We are attacking the town’s policy of terminating service without any due process,” Shane said after filing the lawsuit in U.S. District Court on July 26, 2010.

The town has been represented by its insurer’s attorney, R. Jeffrey Lowe of New Albany. Lowe could not be reached for comment.

The lawsuit stems from a decision by the town to terminate water service to the Wayts’ home at 412 W. Howard St. In the lawsuit, Melanie Wayt contends she was out of town at the time, and her father was taking care of her affairs locally.

Read the story for the facts, which are somewhat complex.

In addition, the ILB has obtained a copy of Judge Barker's 32-page, 3/30/12 ruling.

Posted by Marcia Oddi on Wednesday, April 04, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Geneva eyes own seat-belt law"

Kristin Baron reports in the Decatur Daily Democrat:

The town of Geneva is looking into a seatbelt ordinance that would generate more money for the town.

At Tuesday's meeting of the Geneva Town Council, Marshall Rob Johnson said that as it currently stands, when a town police officer issues a $25 ticket to a driver for violating the seatbelt law under the state ordinance, "$21 goes to the state and $4 goes to the town."

If a town ordinance is in place, a police officer could choose to ticket a driver either under the local ordinance or the state ordinance. Johnson pointed out that if a driver is ticketed under the town ordinance for a seatbelt violation, the money from that ticket would go directly to the town and the driver would not receive points against his driving record.

Geneva Clerk-Treasurer Bill Warren said, "It doesn't mean we're looking to write more tickets, but to keep the money local [from the tickets that are written]."

No motions or decisions were made regarding the matter.

Posted by Marcia Oddi on Wednesday, April 04, 2012
Posted to Indiana Government

Environment - "Ohio River tops nation in pollution discharges"

So reports James Bruggers today in the Louisville Courier Journal. The long story begins:

The Ohio River again leads the nation in the amount of toxic chemicals dumped into it by industries, according to a new report by a Washington, D.C.- based environmental group.

The 32 million pounds of discharge into the Ohio is about 1 million pounds more than the last time the group analyzed pubic data on factory discharges into the nation’s waterways three years ago.

“America’s waterways are a polluter’s paradise,” said Shelley Vinyard, a water advocate with Environment America, which published the report recently as a follow up to a similar study in 2009.

She noted that the Clean Water Act of 1972 was supposed to clean the nation’s waters by 1985. “It’s clear we have not reached that goal,” she said.

The state of Indiana led the nation in total amount of toxic discharges to waterways, with more than 27 million pounds, the report found. Indiana was followed by Virginia, Nebraska, Texas and Louisiana.

Posted by Marcia Oddi on Wednesday, April 04, 2012
Posted to Environment

Law - "Only the naive think all legislators write their own bills."

New Jersey newspapers are reporting on the American Legislative Exchange Council (ALEC). Here are three stories from Salvador Rizzo of NJ Star-Ledger, headed:

An editorial dated April 3rd in the Star-Ledger is headed "It may have found a loophole, but American Legislative Exchange Council is no charity." A sample:
Only the naive think all legislators write their own bills. They rely on staff, advisers and experts to help with the words that ultimately become law. ALEC provides some of that help — but it masks its lobbying as charity work.

The work has an icky vibe: ALEC charges corporations such as Johnson & Johnson, Verizon and Wal-Mart huge sums for the chance to draft bills alongside its 2,000 member legislators. Lawmakers can then download those bills and introduce them as their own back home. Meanwhile, those bills promote the self-serving policies — such as the NRA’s Stand Your Ground laws — of ALEC’s members.

These corporations buy access that’s off-limits to the average citizen. And when a lawmaker introduces an ALEC-written bill, it creates the appearance of puppets on string, and the risk that a lazy legislature could, essentially, outsource a core responsibility: turning ideas into laws. Or even generating the ideas in the first place, like an army of trained monkeys.

The real head-scratcher, however, is how this incredibly influential organization has somehow evaded the same scrutiny and transparency required of professional lobbyists.

ALEC has the tax-exempt 501(c)(3) status of a nonpartisan charity. It calls itself a forum for legislators to share ideas, and says its mission is policy, not politics, favoring free markets and limited government. Yet it’s hard to see how its corporate memberships and bill-writing — which critics say has a conservative, political slant — are different from a lobbyist paid to rub shoulders and peddle influence.

Here is a list of earlier ILB entries on ALEC.

Posted by Marcia Oddi on Wednesday, April 04, 2012
Posted to General Law Related

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

For publication opinions today (5):

In Melanie Webster v. Walgreen Co. , a 7-page opinion, Judge Crone writes:

Melanie Webster filed a complaint against Walgreen Co. by certified mail. Her first attempt at mailing the complaint was returned due to insufficient postage. By the time Webster resent and filed the complaint, the statute of limitations had run. Webster filed a motion to amend the filing date of her complaint to the date that she had originally sent the complaint, which was within the statute of limitations. The trial court denied the motion and thereafter granted Walgreen judgment on the pleadings because the complaint was untimely. Webster appeals the denial of her motion to amend the filing date. We conclude that “mailing” for purposes of the Indiana Trial Rules requires the sender to affix sufficient postage. Therefore, Webster’s complaint was not filed until her second attempt at mailing and was untimely. We affirm the judgment of the trial court. * * *

On December 13, 2010, Webster’s attorney, C. Stuart Carter, placed the complaint, summons, appearance, and filing fee in an envelope, which he weighed himself. Carter’s postage scale indicated that the envelope weighed six ounces. Carter used Stamps.com to determine that the appropriate amount of postage to send the envelope by certified mail was $6.83. Carter printed the stamp and deposited the envelope in the mail.

The postal service apparently reweighed the envelope and determined that it weighed slightly more than six ounces and that there was $.17 postage due. The postal service delivered the envelope to the clerk of the Morgan County Courts on December 14, 2010, and the clerk declined to pay the postage due.1 The envelope was returned to Carter on December 21, 2010, a few days after the two-year statute of limitations had run. Without opening the envelope, Carter reweighed it. His scale still read six ounces, but he decided to print a stamp for eight ounces to give himself a margin of error. Carter placed the new stamp on the envelope and resent it on December 21. The clerk received it the next day and stamped the complaint filed on December 22, 2010.

In Calvin Hair v. Mike Schellenberger and Lawyers Title Ins. Corp., Wells Fargo Bank, N.A., Felix Adejare, and Sharon Adejare, a 12-page opinion, Judge Crone writes:
This is a dispute over who has superior title to a piece of property on Talbott Street in Indianapolis (“the Talbott Street Property”). When Mike Schellenberger purchased the Talbott Street Property at a foreclosure sale, the title search did not show a money judgment that Calvin Hair had obtained against former owners Felix and Sharon Adejare (collectively, “the Adejares”). The judgment had never been indexed in the county records, and Schellenberger was unaware of it until a year later, when Hair sent him a letter claiming that he had a judgment lien on the Talbott Street Property. Schellenberger subsequently filed an action against Hair to remove the cloud on the title. Schellenberger, his lender, and his title company (collectively, “the Appellees”) sought summary judgment on the basis that Schellenberger was a bona fide purchaser (“BFP”) as a matter of law. Hair filed a motion for partial summary judgment, seeking a declaratory judgment that the Adejares had fraudulently conveyed the Talbott Street Property and that he had a judgment lien giving him superior title.

The trial court denied Hair’s motion for partial summary judgment and granted the Appellees’ motions for summary judgment. Hair appeals, claiming that the Adejares fraudulently conveyed the Talbott Street Property and that his judgment against the Adejares constituted a valid judicial lien of which the Appellees should have been aware. Finding that Hair’s judgment was outside the chain of title and that Schellenberger was a BFP as a matter of law, we affirm the trial court’s decision in all respects.

Mid-Century Ins. Co. v. Estate of Thomas Lynn Morris, by and through his personal representative, Tommy Lynn Morris, Daemen Sampson, and Dora Robinson

Ronald Rexroat v. State of Indiana

In Mark Todisco v. State of Indiana , a 6-page opinion, Judge Crone writes:

In March 2009, Mark Todisco was charged with disorderly conduct and intimidation based on his refusal to cooperate with police during a domestic disturbance at the home of his son and daughter-in-law. After numerous delays, his jury trial was eventually set for September 2010. In August 2010, he filed a motion for discharge under Indiana Criminal Rule 4(C), alleging that he should be discharged due to the State’s failure to bring him to trial within one year. The trial court denied his motion, and a jury found him guilty of class B misdemeanor disorderly conduct.

Todisco now appeals, claiming that the trial court erred in denying his motion for discharge. Finding that he waived this issue by failing to promptly and specifically object when the trial date was set beyond the one-year period, we affirm.

NFP civil opinions today (4):

In Re the Term. of the Parent-Child Rel. of D.T. and J.T. v. The Indiana Dept. of Child Services (NFP)

In re the Marriage of: Richard A. Medcalf v. Sheri L. Medcalf (NFP)

Lorraine Tietjen v. PEP Educational Support, Inc., Turner Marketing, Inc., and Richard P. Turner (NFP)

In the Matter of the Involuntary Term. of the Parent-Child Rel. of Ja.B., J.B., J.P., A.P. & C.P.; and R.P. v. Indiana Dept. of Child Services and Lake Co. CASA (NFP)

NFP criminal opinions today (5):

Gregory Hayes v. State of Indiana (NFP)

Rex A. Clark v. State of Indiana (NFP)

Ryan S. Shearer v. State of Indiana (NFP)

Rachel Ann Ruch v. State of Indiana (NFP)

James Alvarado v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 04, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Even more on: Final Arguments Today in IBM/State case

Updating this entry from April 3rd, here are some good stories today on yesterday's closing arguments:

Posted by Marcia Oddi on Wednesday, April 04, 2012
Posted to Indiana Courts

Ind. Law - Still more on: "Garrett High School Senior Expelled For Tweeting Profanity"

Updating this ILB entry from March 30th, where the Fort Wayne Journal Gazette wrote in an editorial:

Lost in the discussion of Austin Carroll’s case is that the Garrett senior used a school-issued computer to post a profane message, even after warnings not to do so. Garrett students and their parents are asked to sign a clearly articulated “respectable use policy” acknowledging they will use the equipment in a responsible manner.

Superintendent Dennis Stockdale told The Journal Gazette the school has never disciplined and will not discipline students for anything they tweet or post online using their own computers, on their own time and outside the district’s network.

is this newer, lengthy, nationally disseminated AP story by Charles Wilson, here in the Atlanta Journal Constitution and headed "Student's profane tweet stirs free-speech debate." A quote:
Carroll insists he made the tweet on his own time using his own computer, making it none of the school's business. But school officials in the small city of Garrett, about 20 miles north of Fort Wayne, contend that the teen used either his school-issued computer or the school network. The details could spell the difference between a routine school discipline case and a broader First Amendment dispute. * * *

First Amendment and students' rights experts agree with him. If Carroll was using his own computer and network to send the tweet, the school's action was "an incredible overreach and overreaction that arguably raises not only First Amendment but Fourth Amendment issues," said David Hudson, a scholar at the First Amendment Center at Vanderbilt University in Tennessee. The Fourth Amendment protects citizens against unreasonable searches and seizures.

Since 1969, the U.S. Supreme Court has generally ruled that students have free-speech rights, and schools can prohibit their speech only if it is vulgar or disruptive to schoolwork or other people. But that power doesn't reach far beyond school property.

"I think it makes a big difference where this was done," said Ken Falk, legal director of the American Civil Liberties Union of Indiana.

Carroll insists he was not using his school-issued computer and was not logged onto the school network. His mother said her son had insomnia and was up tweeting at about 2:30 a.m. "What are they doing, following him 24/7?" she said.

School officials insist they are not.

"It was either on the school network or one of the school computers," said President Tony Griffin, vice president of the Garrett-Keyser-Butler school district. "It wasn't any of his own personal network or computer that caused this."

Superintendent Dennis Stockdale said the school computer network has a federally required filter that flags certain prohibited content, whether it's foul language or a pornographic website, anytime a student or teacher posts or accesses it.

Students must sign a "Respectable Use Policy" in which they agree not to visit websites or forward communications that are "inappropriate," but the document doesn't specifically mention language and says nothing about students' own posts.

Stockdale was uncertain whether a school computer might download Internet content that had been posted from a personal device earlier when a student logged onto their Twitter or Facebook account at school.

"Whether it's already on there or not ... if they bring it up on their school computer then, then it's a school issue," Stockdale said.

Legal experts say schools aren't getting much help from the courts. Lower court rulings have varied widely, and the Supreme Court has declined three times this term to review similar student off-campus speech.

"School officials don't really know what legal standard applies," said Emma Llanso, policy counsel at the Center for Democracy and Technology, a nonprofit public interest group in Washington.

With little help from the courts, school officials and state lawmakers across the U.S. are groping for any kind of guidance on the issue.

New Jersey legislators last year passed a law aimed at curbing cyberbullying that also compels administrators to track students' online behavior away from school.

"I think it's such a reach that it's absurd," said Charles Maranzano, superintendent of the Hopatcong, N.J., school district. "I think it's completely illegal that we're being asked to investigate into the private lives of people outside the schools."

Indiana lawmakers this year considered a bill that would have increased school officials' authority over off-campus behavior. Supporters said it was motivated by concerns over bullying, but critics contended it was a response to a federal court ruling last August that found a northern Indiana school district violated the First Amendment rights of two teenage girls by punishing them for posting sexually suggestive photos on MySpace during their summer vacation.

The bill bogged down over First Amendment concerns and was referred to a study committee.

"As we got deeper and deeper into the subject, we found it becoming very complex ... particularly concerning technology," said the bill's author, Republican Rep. Eric Koch of Bedford.

Posted by Marcia Oddi on Wednesday, April 04, 2012
Posted to Indiana Law

Ind. Courts - "Special prosecutor appointed in ballot petition case"

A brief story in the South Bend Tribune reports that:

SOUTH BEND — The county prosecutor has stepped aside in the ballot petition case involving former county Democratic Party chair Butch Morgan and three others.

According to a press release, Mike Dvorak on Tuesday petitioned the court to appoint a special prosecutor in the case "for the reason that he may be called as a witness."

"Under the Indiana Rules of Professional Conduct … 'a lawyer shall not act as an advocate at trial in which the lawyer is likely to be a necessary witness.'"

Dvorak's signature is one of several allegedly forged on petitions to place Democrats Barack Obama and Hillary Clinton on the Indiana primary ballot in 2008.

In Dvorak's place, the court has appointed former Vanderburgh County Prosecutor Stanley M. Levco special prosecutor, the press release states.

The prosecutor's office on Monday charged Morgan, Bev Shelton, Pam Brunette, and Dustin Blythe in the case. The four face multiple felony counts.

Here is an earlier AP story giving background, headed "Ex-Democratic official charged in Indiana petition forgery."

Posted by Marcia Oddi on Wednesday, April 04, 2012
Posted to Indiana Courts

Ind. Courts - "State audit questions Clark court's fees"

Ben Zion Hershberg reports today in the Louisville Courier Journal in a lengthy story:

The Indiana State Board of Accounts has questioned more than $2.5 million collected from motorists on traffic tickets issued in Clark County over 5 1/2 years, saying alcohol and drug fees ranging from $18 to $50 per ticket shouldn’t have been charged for traffic offenses that didn’t include alcohol or drugs.

“These offenses were not substance use-involved offenses and the traffic offenders did not receive alcohol and drug program services,” says the board of accounts audit for Jan. 1, 2008, through Dec. 31, 2010, which was issued last month.

State law doesn’t allow such charges, the audit says.

Joseph Weber, Judge of Clark County Circuit Court 3, which was named Superior Court 3 until this year, said he has discontinued collecting alcohol and drug fees on traffic tickets that don’t involve such issues because of the audit questions.

Stephen Fleece, who was judge of Superior Court 3 for more than 20 years, said he believes the board of accounts is wrong about the alcohol and drug fee. He said the court provided a service to traffic violators by giving them a pamphlet that included information about the dangers of driving when using alcohol or drugs and the availability of an alcohol and drug assessment free of charge.

It is the provision of such information, Fleece said, “which the judges consider a service.” * * *

As in the previous audit, the board of accounts again questions $1,007,098 in contributions made by Fleece in 2008 to organizations including $4,500 to a sports league in Borden; $132,742 for automobiles, carpeting and other court purchases; a lawnmower and trailer for the sheriff’’s department; and radar guns, motorcycle trailers and other items for the Indiana State Police.

Here is the 12-page SBA Audit Report of the Clerk of the Clark County Court, for calendar year 2010, filed 3/23/12.

Posted by Marcia Oddi on Wednesday, April 04, 2012
Posted to Indiana Courts

Ind. Courts - "LaPorte prosecutor under investigation"

Here is the story, reported by Stan Maddux in the South Bend Tribune. It begins:

Allegations of misconduct by LaPorte County Prosecutor Robert Szilagyi are being reviewed by the Indiana Supreme Court Disciplinary Commission.

In a prepared statement, Szilagyi said he could not offer specifics about the allegations because the investigation by the disciplinary commission is ongoing.

He did say the issue stems from a divorce that happened more than three years ago.

Szilagyi added the allegations do not involve the prosecutor's office or any of his clients and occurred before he was elected prosecutor in November 2010.

Posted by Marcia Oddi on Wednesday, April 04, 2012
Posted to Indiana Courts

Tuesday, April 03, 2012

Ind. Gov't. - "Stale town code Web page causes headaches for Burns Harbor"

The Chesterton Tribune today has this story by Paulene Poparad that should be widely noted:

The Burns Harbor Advisory Plan Commission decided Monday that having a version of the town code online that hasn’t been updated is causing more problems than it’s worth.

Members agreed to pull the link from the town website until conflicting versions of the ordinances are resolved.

President Jeff Freeze, one of three Town Council members on the commission, said of the online code, “It’ll be back there very quickly.”

Building Commissioner Bill Arney said the discrepancies are causing problems for him and his staff; a builder of apartments going up in town believes one certificate of occupancy is all that’s needed, said Arney, even though each living unit needs to be inspected individually and an inspector paid to do that.

Arney said he has packets prepared for contractors/developers with updated ordinances and those getting a packet sign that they’ve received them, but they’re apparently not reading them and relying on the website instead.

“I’m just looking for a way to all stay on the same page,” said Arney.

“If it’s not what Bill’s going by, we need to pull (the web page) down,” said Freeze. “I want to see the current code up there and that’s it.”

Plan Commission secretary Tyler DeMar said he plans to present the Town Council April 11 with a proposal to get and keep the website version of the town code accurate. Freeze said a solution could be a disclaimer that the web version is for reference only and not intended to be a complete document.

Arney also noted the town code doesn’t appear to require a fee for signs under $1,000 in four zoning districts. The commission recommended a building permit-fee addition of $75 or 10 percent of the cost of the sign, whichever is larger, in the Residential/Commercial 2, Downtown, Business Park and Special Districts.

ILB: "Freeze said a solution could be a disclaimer that the web version is for reference only and not intended to be a complete document."

So why post it if users are not to rely on it?

Posted by Marcia Oddi on Tuesday, April 03, 2012
Posted to Indiana Government

Vacancy on Supreme Court 2012 - More from the Justice Sullivan interview

Here are some tweets from Chris Sikich's interview yesterday with Justice Sullivan yesterday:

Posted by Marcia Oddi on Tuesday, April 03, 2012
Posted to Vacancy on Supreme Court 2012

Environment - "Pennsylvania Federal Court Holds Pollution Exclusion Applies to Pig Farm Odor Claim"

An article posted by Traub Lieberman Straus & Shrewsberry LLP (a NY firm) reports that:

In its recent decision in Travelers Property Casualty Company of America v. Chubb Custom Insurance Co., 2012 U.S. Dist. LEXIS 44756 (E.D. Pa. Mar. 30, 2012), the United States District Court for the Eastern District of Pennsylvania, applying Pennsylvania law, had occasion to consider whether noxious odor emanating from a pig farm constituted a pollutant for the purpose of a total pollution exclusion.

The insured operated commercial pig farms in several states, including a facility in Indiana that contained some 2,800 sows and their babies. * * *

The court conceded that the issue of whether odors emitted from a large livestock facility are a pollutant was a matter of first impression under Pennsylvania law. * * *

[T]he court held that it is the nature of the alleged odors, in relation to the alleged harm, that determines whether it is a pollutant. Thus, explained the court, noxious odors emanating from a pig farm that allegedly resulted in harms beyond mere nuisance, but actual bodily injury (i.e., nausea, vomiting, breathing difficulties, etc.), unambiguously fell within the definition of “pollutant.” The court also rejected the insured’s argument that the exclusion did not apply because manure odors are commonplace in rural areas.

Posted by Marcia Oddi on Tuesday, April 03, 2012
Posted to Environment

Ind. Courts - Still more on: Final Arguments Today in IBM/State case

Carrie Ritchie of the Indianapolis Star has posted a story on this morning's final arguments in the State v. IBM trial. The story begins:

Closing arguments are underway in a trial for dueling lawsuits over the state's canceled welfare modernization contract with IBM.

The state presented its closing arguments this morning and IBM will present its closing arguments this afternoon. The closing arguments will end the lengthy trial, which began Feb. 27.

Attorney John Maley, who's representing the state, said during closing arguments this morning that the case is fairly simple.

"(IBM) signed on to deliver," Maley said, "and they didn't."

He also said that the company "never focused on the people in need," who sometimes went without services because of problems with the automated system.

IBM spokesman Clint Roswell said in an email statement this morning that the state's "finger-pointing {$326} could not obscure the fact that Indiana Welfare Eligibility System still uses IBM technology and expertise to this day."

"No one can deny IBM's good faith efforts and the benefits it has provided to the citizens of Indiana," Roswell said in the statement.

Both sides are squabbling over millions of dollars that each is trying to force the other to pay.

Posted by Marcia Oddi on Tuesday, April 03, 2012
Posted to Indiana Courts

Vacancy on the Supreme Court 2012 - Justice Sullivan and diversity

Chris Sitich, who authored today's IndyStar story on the Sullivan retirement, has more on the Star blog, DeepFriedPolitics.

Posted by Marcia Oddi on Tuesday, April 03, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (0):

In William Minnick v. State of Indiana, a 12-page opinion, Judge Bradford concludes:

We conclude that the trial court properly imposed sentences for Minnick’s robbery and rape convictions. We further conclude that the trial court did not err in failing to order another competency evaluation for Minnick. Minnick’s conviction for Class A felony robbery, however, violates prohibitions against double jeopardy. We reverse in part and remand with instructions for the trial court to reduce Minnick’s robbery conviction to a Class B felony and impose a twenty-year sentence to run consecutively with his sixty-year sentence for murder and his fifty-year sentence for Class A felony rape, for a sum total sentence of 130 years executed.

The judgment of the trial court is affirmed in part and reversed and remanded in part with instructions.

NFP civil opinions today (0):

Edmond D. Martin v. State of Indiana ex rel. Ronald Jordan, Union County Prosecuting Attorney and the Indiana Bureau of Motor Vehicles (NFP)

NFP criminal opinions today (0):

Becky Schaffer v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 03, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Final Arguments Today in IBM/State case

Good news, finally some press coverage of the IBM suit!


Posted by Marcia Oddi on Tuesday, April 03, 2012
Posted to Indiana Courts

Vacancy on Supreme Court 2012 - "Another Indiana Supreme Court justice to step down"

Several stories this morning following on Justice Sullivan's unexpected announcement yesterday that he will be leaving the Supreme Court.

Chris Sikich has a long story in the Indianapolis Star. A few quotes:

Frank Sullivan's unexpected retirement from the Indiana Supreme Court will give Gov. Mitch Daniels the chance to appoint a majority three members to the state's highest panel.

Just hours after Mark Massa was sworn in as the newest justice Monday, Sullivan announced he would leave late this summer to teach at the Indiana University Robert H. McKinney School of Law in Indianapolis. He starts his new job Aug. 22. * * *

The retirement will give Daniels the chance to shape the court in the coming decades, with a majority three of five appointments. No governor has appointed so many since Evan Bayh, who named four people to three seats in the 1990s. * * *

Daniels' office had no comment Monday. But mounting pressure will be on the governor to appoint a woman to the all-male court. Before Boehm retired, the same five justices had served since 1999. Myra Selby has been the only woman to serve as justice, from 1995 to 1999.

Criminal defense lawyer Monica Foster said it is past time. Female defendants, she said, have the perception that they are not receiving justice from an all-male court. And beyond perceptions, she said, women have a different take and viewpoint on issues from men.

Daniels has had the chance to pick women for the court. He chose Massa over Jane Seigel, executive director of the Indiana Judicial Center, and Appeals Court Judge Cale Bradford. He picked David over attorney Karl Mulvaney and Marion Superior Court Judge Robyn Moberly.

"I think he's had two opportunities to pick a woman, and I think it's high time he did it," Foster said. "I think it's critically important that we have a woman on that court, and I think it's an embarrassment that there's not."

Niki Kelly of the Fort Wayne Journal Gazette reports:
“Though my work here has been deeply satisfying and I’m proud of it, probably two years ago I got to thinking I was reaching an age where if I was going to do one more big thing before retiring, I needed to get about it,” Sullivan said Monday.

The 62-year-old is from South Bend and in his spare time is an avid runner who competed in the 2010 Boston Marathon. He was state budget director from 1989 through 1992.

The latest announcement is the continuation of a period of monumental change for the Indiana Supreme Court.

From 1990 to 1999, there were five changes on the court. Then there were none from 1999 to September 2010, when Daniels tapped Steven David to replace Theodore Boehm.

In December, then-Chief Justice Randall T. Shepard announced his retirement. Daniels appointed Mark Massa to take his place last month and he was sworn in Monday.

Now Sullivan is leaving this summer – giving Daniels three appointments in the span of just two years. * * *

Sullivan was known during his time on the court for relentlessly questioning attorneys during oral arguments – often with interesting scenarios of future law.

“I like engaging the lawyers. I learn a lot,” he said. “Sometimes I wonder a little bit whether I talk too much. I shoot from the hip.”

Off the bench, Sullivan chaired a committee aimed at improving technology for all Indiana courts, including an interconnected case management system that is now in 120 courts handling 35 percent of the statewide caseload. * * *

In his office Monday, Sullivan said he is most proud that during his time on the bench not a single case was decided along party lines for political purposes.

“We have a judicial selection system in this state that minimizes the importance of partisanship. People are not thinking about partisanship when they cast their votes,” he said.

“It’s a remarkably, remarkably good system that we have here in Indiana. It lifts up raging moderates, such that each of us is free to find our own way to what we think is the right decision under the law and the facts in any particular case.” * * *

Daniels received some pressure during his first two appointments to pick a woman, largely because Indiana is one of only three states not to have a female jurist on the state Supreme Court.

When Boehm left, 19 women and 15 men applied. One finalist was a woman and Daniels chose a man. When Shepard left, eight men and seven women applied. One finalist was a woman and Daniels chose a man.

Both times, Daniels said he considers gender a tiebreaker to be used only if the final candidates are equal in accomplishments and qualifications.

Sullivan said he thinks some female attorneys might be reluctant to apply this time, but he encouraged them to do so.

“I think that our court would be better off if there were one or two or three women on it. If it comes to pass that my successor is a woman, no one will be more delighted than I, except maybe my wife,” he said.

The story concludes with this quote from Justice Sullivan:
“I have every confidence that if he gets a panel of three women, he will appoint a woman.”

Posted by Marcia Oddi on Tuesday, April 03, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Gov't. - "Indiana finished 43rd among the states for women’s quality of life"

That is a quote from this editorial today in the Fort Wayne Journal Gazette. Some quotes:

“Indiana needs more females in positions of power in order to do a better job on the issues that matter most to women,” according to the survey, which noted Rep. Bob Morris’ much-publicized objection to a resolution honoring the Girl Scouts because – he claimed – the organization promotes homosexual lifestyles.

Indiana’s congressional district includes no women; Lt. Gov. Becky Skillman and newly appointed Secretary of State Connie Lawson are the only female statewide office-holders.

On a positive note, the survey – released in mid-March – noted that Jane Ann Seigel was a finalist for the Indiana Supreme Court and that her appointment could place a woman on the court for the first time in 13 years. Hoosiers, of course, know that didn’t come to be. Gov. Mitch Daniels again bypassed a well-qualified female. He’ll have a third chance to do the right thing now that Justice Frank Sullivan has announced he’s stepping down.

But Hoosiers don’t have to wait. They can demand more immediate action on issues important to women, first by nominating and then electing candidates who pledge to do the right thing.

Posted by Marcia Oddi on Tuesday, April 03, 2012
Posted to Indiana Government

Ind. Courts - Final Arguments Today in IBM/State case

Via a news release from Marion Superior Court:

Indianapolis, Ind. -- Closing arguments for the consolidated trial involving counter-lawsuits by the State of Indiana v. IBM and IBM v. State of Indiana are scheduled to begin at 9:00 a.m. on Tuesday, April 3rd in Marion Superior Court, Civil Division 10, T-1441 City-County Building, 200 East Washington Street, Indianapolis, IN (46204).

The Hon. David J. Dreyer is presiding over the bench trial. Final evidence was presented on March 28 after almost five weeks of testimony. Final arguments on Tuesday are expected to last most of the day. A ruling is not expected until this summer.

Highlights of the bench trial include:

A total of 97 witnesses, including the governor's chief of staff and most of the governor's executive staff, as well as state officials with FSSA; several key IBM executives; numerous statistical, mathematics, welfare eligibility, equipment appraisers and damage experts from around the country; welfare advocacy groups; and welfare recipients.

Approximately 27,800 exhibits were submitted, totaling about 1M pages.

The State of Indiana is requesting over $170M in damages. IBM seeks up to (approximately) $100M in disputed fees and equipment under the contract.

This case is the first general Indiana civil case of its kind to use electronic filing by order of the Indiana Supreme Court. Media may access the court file through LexisNexis using public terminal #4 in the Marion County Clerk's Office, located on the main floor of the City-County Building, West Wing. There is no charge to access records using the public terminal, no login is needed, and records may be saved to your personal flash drive. (The Clerk's Office charges $1.00 per page for printed copies.) Court records may also be accessed through the LexisNexis website for a fee. Please contact LexisNexis Customer Service at 888.529.7587 for more information.

BACKGROUND: This is a consolidated case involving both parties suing each other over the cancellation of a ten year contract for IBM to implement an eligibility Modernization system for Indiana Family and Social Services Administration (FSSA) for Hoosiers seeking or receiving TANF, Food Stamps and Hoosier Healthwise. The contract for more than $1B was signed in December 2006 between the two parties. It was terminated by the State of Indiana in October 2009. This is a civil bench trial which means all rulings will be determined by Judge Dreyer.

Posted by Marcia Oddi on Tuesday, April 03, 2012
Posted to Indiana Courts

Monday, April 02, 2012

Vacancy on Supreme Court 2012 - "The Court will go from one with more than 91 years of combined service and experience among its five justices in 2010 to much less than half of that this summer"

Thanks to Robert H. McKinney Law Professor Joel Schumm for the following analysis:

On February 24, 2008, the five justices of the Indiana Supreme Court (Chief Justice Shepard and Justices Dickson, Sullivan, Boehm, and Rucker) celebrated 3040 consecutive days together—an Indiana Supreme Court record. The image below is from a wrapper on Hershey’s candy bars, which were distributed at the time.

Those five justices would remain together for more than two and half additional years until Justice Boehm’s retirement in September of 2010. That period of nearly eleven years of unchanged membership was marked by collegiality, stability, and predictability.

With the announcement today of Justice Sullivan’s retirement, the Court will soon go from one with more than 91 years of combined service and experience among its five justices in 2010 to much less than half of that this summer. With Justice Sullivan’s departure the Court will have lost nearly sixty years of institutional knowledge and experience from the three recently retired justices:

  • Chief Justice Shepard: September 1985-March 2012
  • Justice Sullivan: November 1993-August 2012
  • Justice Boehm: August 1996-September 2010
(And another retirement will happen in the not-too-distant future: Acting Chief Justice Dickson, who has served for more than 26 years, must retire no later than 2016 when he turns 75.)

The timing of the three retirements (all well before mandatory retirement age of 75) suggests trust and confidence in Governor Daniels’ judgment in appointing replacements. His two appointees have been in their early 50s, which will likely leave a legacy for two decades or longer. It remains to be seen whether that legacy will include the appointment of a female justice; this will likely be his third and final opportunity.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - J. Dickson pays tribute to J. Sullivan

BTW, I was about to retire the "Vacancy on the Supreme Court 2012" heading today, with the swearing in of Justice Massa ...

Here is a brief "Statement by Acting Chief Justice Brent E. Dickson on the Retirement of Justice Frank Sullivan, Jr."

Chris Sikich of the IndYStar is interviewing Sullivan. Some tweets, strung together: Sullivan says he had reached an age where he could do one more big thing. He approached the law school last September. Sullivan says he interviewed in January. Sullivan says chief justice Shepard retirement was a shock; but still decided to go forward w interview. And of course he was hired.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Vacancy on Supreme Court 2012

2nd 2012 Vacancy on the Supreme Court - Justice Sullivan to resign

Just released from the Robert H. McKinney School of Law:

Indiana Supreme Court Justice Frank Sullivan, Jr. to Join Indiana University McKinney School of Law Faculty

Indianapolis -- Indiana Supreme Court Justice Frank Sullivan, Jr., has been appointed to the faculty of the Indiana University Robert H. McKinney School of Law, Dean Gary R. Roberts announced today. Sullivan’s appointment takes effect at the start of the Fall Semester.

“Having Frank Sullivan join our faculty is an exciting and extraordinary opportunity to bring in someone with a great mind and academic temperament to teach our students both theory and practice and to add to our scholarly culture,” said Dean Roberts. “At the same time Justice (soon to be Professor) Sullivan can connect the school more firmly with the practicing bar and bench through his extraordinary reputation and his extensive experience as a practicing lawyer, state budget director and Supreme Court justice. This is truly a unique and special hire for the IU McKinney School of Law.”

“I am honored to join the faculty at the Indiana University McKinney School of Law,” Sullivan said. “I have long admired the faculty of the law school and its commitment to the school’s students and to community service. I very much hope I can make my own contributions in those regards.”

Sullivan served as an Adjunct Professor of Law at the school of law from 2007-2009, teaching a class in public finance law. Dean Roberts said that he expects Sullivan to teach classes in business law and corporate finance. Sullivan said that he will continue to serve as a member of the Court until near the start of the fall semester at the law school. He said he will notify the Clerk of the Court and the Judicial Nominating Commission as soon as a definite date for his departure from the Court is determined.

Sullivan has been a member of the Indiana Supreme Court since 1993 when he was appointed by former Governor Evan Bayh. During his tenure on the Court, he has authored approximately 500 majority opinions addressing a wide range of criminal, civil, and tax law issues. Several of his decisions have been selected for publication in law school casebooks.

Prior to his appointment to the Court, Sullivan served as State Budget Director (1989-1992) and Executive Assistant for Fiscal Policy to Governor Bayh (1993) during which time he directed the preparation of the Bayh administration’s budget proposals and oversaw implementation of state budgets passed by the Legislature. Prior to state service, he practiced corporate finance and securities law in the Indianapolis office of Barnes & Thornburg, Indiana’s largest law firm. Sullivan served on the staff of former U.S. Rep. John Brademas from 1974 to 1979, ultimately assuming the position of staff director.

Sullivan has been active in national judicial and law reform organizations. He is a past chair of the ABA Appellate Judges Conference and the Appellate Judges Education Institute Board of Directors. He has been a leader of the ABA’s Judicial Clerkship Program that encourages minority law students to seek judicial clerkships and is the recipient of several awards for advancing opportunities for minority lawyers in the legal profession. And he is a member of the American Law Institute and has been selected as an Adviser to two of its Projects: “Restatement Third, Torts: Liability for Economic Harm” and “Principles of Election Law: Resolution of Election Disputes.”

Sullivan graduated from Dartmouth College (A.B., cum laude, 1972) and the Indiana University Maurer School of Law—Bloomington (J.D., magna cum laude, 1982; Order of the Coif). He also holds an LL.M. from the University of Virginia School of Law (2001). He is married to Cheryl G. Sullivan; they are the parents of three adult sons. An avid runner, Sullivan has qualified for and competed in the Boston Marathon three times in the last decade.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - 7th Circuit decides one Indiana case today, a remand

In Arnett v. Astrue, SS Comm. (ND Ind., Miller), a 16-page opinion, Circuit Judge Wood writes:

Laenise Arnett suffers from a number of medical problems, including peripheral vascular disease, chronic obstructive pulmonary disease, osteoarthritis, obesity, vascular dementia, depression, panic disorder, and anxiety. As a result, she sought Disability Insurance Benefits (“DIB”) from the Social Security Administration (“SSA”), but she was unsuccessful before the agency. After the Appeals Council denied review of the Administrative Law Judge’s adverse decision, she sought review in the district court pursuant to 42 U.S.C. § 405(g). Once again, she did not prevail. She now appeals to this court, seeking to persuade us that the Administrative Law Judge (“ALJ”) failed properly to assess her residual functional capacity. We agree with her, and so we remand her case to the agency for further proceedings.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

Robert Huskey v. State of Indiana (NFP)

Austin Harmon v. State of Indiana (NFP)

Steffan Solomon v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending March 30, 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 Friday, March 30, 2012. It is one page (and 11 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Indiana Transfer Lists

Ind. Law - ILB's Legislative Research Shortcuts updated

The Indiana Law Blog's Legislative Research Shortcuts, a dashboard for doing online research on the laws passed by the General Assembly, has been updated to include the 2012 session.

I rely on this resource for quickly tracking bill histories; I hope some of you have found it useful too. It can save you from clicking through endless screens to locate the information you need.

The shortcuts page may always be accessed from the right-hand column of the ILB, under the heading "Indiana Legal Resources."

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Indiana Law

Vacancy on Supreme Court 2012 - Photo: Swearing in of Justice Massa

Photo: Swearing in of Justice Massa.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Vacancy on Supreme Court 2012

Courts - "Police Are Using Phone Tracking as a Routine Tool"

This long story by Eric Lichblau was on the front-page of Sunday's NY Times. It begins:

WASHINGTON — Law enforcement tracking of cellphones, once the province mainly of federal agents, has become a powerful and widely used surveillance tool for local police officials, with hundreds of departments, large and small, often using it aggressively with little or no court oversight, documents show.

The practice has become big business for cellphone companies, too, with a handful of carriers marketing a catalog of “surveillance fees” to police departments to determine a suspect’s location, trace phone calls and texts or provide other services. Some departments log dozens of traces a month for both emergencies and routine investigations.

With cellphones ubiquitous, the police call phone tracing a valuable weapon in emergencies like child abductions and suicide calls and investigations in drug cases and murders. One police training manual describes cellphones as “the virtual biographer of our daily activities,” providing a hunting ground for learning contacts and travels.

But civil liberties advocates say the wider use of cell tracking raises legal and constitutional questions, particularly when the police act without judicial orders. While many departments require warrants to use phone tracking in nonemergencies, others claim broad discretion to get the records on their own, according to 5,500 pages of internal records obtained by the American Civil Liberties Union from 205 police departments nationwide.

The internal documents, which were provided to The New York Times, open a window into a cloak-and-dagger practice that police officials are wary about discussing publicly. While cell tracking by local police departments has received some limited public attention in the last few years, the A.C.L.U. documents show that the practice is in much wider use — with far looser safeguards — than officials have previously acknowledged.

The story includes a link to a 189-page training manual for tracking cellphones, apparently part of a California District Attorneys Assoc. CLE course. It also links to this ACLU report, "Cell Phone Location Tracking Public Records Request ," which includes this quote:
The government should have to obtain a warrant based upon probable cause before tracking cell phones. That is what is necessary to protect Americans' privacy, and it is also what is required under the Constitution. In United States v. Jones, a majority of the Supreme Court recently concluded that the government conducts a search under the Fourth Amendment when it attaches a GPS device to a car and tracks its movements. The conclusion should be no different when the government tracks people through their cell phones, and in both cases a warrant and probable cause should be required.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Courts in general

Ind. Decisions - "Court upholds judge's decision to let molest victim testify via TV"

The case of Hane C. Harris v. State of Indiana, decided March 27th by the COA (ILB entry here), is the subject of this story today by Douglas Walker in the Muncie Star-Press. A quote:

In an appeal of his convictions, Harris argued that prosecutors had failed to prove the girl would be seriously harmed if required to testify in the courtroom, and said her televised testimony violated his constitutional rights.

In a 3-0 ruling, the appeals panel last week ruled the evidence was "more than sufficient" that the child "could not reasonably communicate to the jury in the physical presence of Harris."

The judges also noted that Harris' accuser was subjected to a lengthy cross-examination, and through the video link, the defendant could see the girl, and she could see him and the jury.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Ind. App.Ct. Decisions

Vacancy on Supreme Court 2012 - "Newest state justice cites early lessons in the rule of law" [Updated]

As noted in this March 28th ILB entry, Justice-Designate Mark Massa will take the oath of office as Indiana’s 107th Justice privately today.

Maureen Hayden of CNHI has a lengthy biographical story about Massa, published here today in the New Albany News & Tribune.

"Ind. justice's swearing-in highlights state's merit selection" is the headline to a long story in the NWI Times reported by Dan Carden.

"Justice Mark Massa's ascension shows path of government servant" is the headline to an opinion piece by John Krull is director of Franklin College's Pulliam School of Journalism, published yesterday in the Evansville Courier & Press. Here is a sample:

Daniels' decision to keep the Indiana Supreme Court a males-only club doubtless will ratchet up the pressure on the next governor to name a woman.

Daniels said that he would have loved to name a woman, but that gender had to be a "tiebreaker." He also, curiously, suggested that women in the legal profession are partly to blame for not bringing forth the strongest candidates for Supreme Court service. * * *

The places where affirmative action works are the places that — aggressively, even relentlessly — search for and recruit the best women and minority candidates.

Thus, if Mitch Daniels argues that not enough qualified women are applying to serve on the Indiana Supreme Court, then he's really indicting himself and the rest of state government for not doing effective outreach.

The column also attempts a second point, but I could not follow it.

[Updated at 1:15 PM] The "second point" mentioned above perhaps is made more directly in this post today on the appointment by IU-Indy SPEA prof Sheila Kennedy, who discusses cronyism. The heading "…With A Little Help from My Friends."

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Vacancy on Supreme Court 2012

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 1, 2012:

From Saturday, March 31, 2012:

From Friday afternoon, March 30, 2012:

Posted by Marcia Oddi on Monday, April 02, 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 4/2/12):

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

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/2/12):

Monday, April 2nd

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

Monday, April 9th

Tuesday, April 10th

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 02, 2012
Posted to Upcoming Oral Arguments

Sunday, April 01, 2012

Environment - Indiana makes advances in net metering

The Indianapolis Star today, in a lengthy story by John Russell, reports that:

From 2010 to 2011, the number of Indiana customers taking part in net metering rose from 199 to 298 -- a 50 percent increase, according to the Indiana Utility Regulatory Commission.

The maximum output from those renewable facilities increased by 136 percent, from 783 kilowatts to 1,852 kilowatts.

It's not just households taking part. Schools, churches, apartment complexes, government buildings and commercial properties are jumping into the game, installing solar panels, wind turbines and other renewable energy systems, lessening their dependence on the electrical grid.

It's the beginning of a big change here. For years, Indiana lagged the nation in net metering and received low marks from renewable energy advocates. "Freeing the Grid," an annual report, regularly gave Indiana "D" and "F" marks.
But the most recent report, issued last week, awarded Indiana "B" grades in two broad categories, net-metering policies and interconnection procedures. That big leap earned Indiana the "most improved" ranking among all 50 states in the report, published by the Network for New Energy Choices and The Solar Vote Initiative.

Some local environmental groups are hailing Indiana for starting to catch up. They expect the numbers to multiply in coming years as more households and large commercial customers jump on board.

"It's good for Indiana, good for the environment, good for customers," said Bowden Quinn of the Sierra Club's Hoosier chapter.

A big reason for the improvement: the state's decision last year to expand net metering to allow commercial and industrial customers to participate through a rule approved by the IURC. Previously, only residential customers and K-12 schools could take part in net metering.

The IURC also expanded the maximum size of an eligible facility from 10 kilowatts (an average house uses between 3 and 5 kilowatts) to 1 megawatt (enough for a factory).

But Indiana still has a long way to go, and other states remain far ahead. Massachusetts, for example, allows up to 10 megawatts for net metering by a municipality or other government entity -- the equivalent of powering tens of thousands of households. It allows up to 2 megawatts for other large users.

And not all renewable energy advocates are sold that Indiana is pushing hard enough in this direction. They say Indiana has been dragging its feet and warn that recent improvements are not cause for a huge celebration.

"When you've been at the bottom of the barrel for so long, the only direction is up," said Kerwin Olson, executive director of Citizens Action Coalition of Indiana.

For years, Indiana had one of the weakest net-metering laws in the nation. Efforts to expand the program died in the 2009 and 2010 legislative sessions despite bipartisan support. Some lawmakers wanted to limit net metering here to 200 kilowatts, saying it was enough capacity for every homeowner and most businesses.

There is much more detail, including how to participate, in the long story.

Posted by Marcia Oddi on Sunday, April 01, 2012
Posted to Environment

Ind. Decisions - "Ruling gives I-69 crews immediate access to Monroe County property to survey land for construction: Judge says tree-cutting ban presses INDOT to fell trees before April 1"

This story reported by Laura Lane appeared more than a week ago, March 24th, in the $$ Bloomington Herald-Times. It begins:

A judge’s ruling despite pleas of opposition from Monroe County property owners in the path of I-69 has opened the gates for survey and core-drilling crews to go onto their land to conduct tests to pave the way for the highway’s construction.

Monroe Circuit Judge Francis Hill’s late-Thursday ruling allows heavy equipment use, geo-technical drilling and tree removal so crews working for the Indiana Department of Transportation can bore deep into the earth to identify the topography. The purpose is to determine the depth of subsurface material necessary and the kind of surface that should be used to construct the highway through the area.

Workers also will conduct archaeological surveys to locate special features or artifacts.

Rudy Savich, a Bloomington lawyer representing several landowners who do not want workers on their property before the state has taken ownership, lost their battle in court seeking a reprieve. And when Savich filed an emergency motion Friday morning asking that his clients be given 48 hours notice, Hill denied it.

She ruled that “irreparable harm” would result if INDOT does not have “prompt access” to the property and said contractors could proceed with the survey work “immediately.” Quick access is necessary because of restrictions banning the felling of trees larger than three inches in diameter between April 1 and Nov. 15 for protection of the Indiana bat’s habitat.

“We’ve got to get all of the trees felled by the end of March in the area of construction surveys because of the bat restrictions,” confirmed INDOT spokeswoman Cher Elliott.

Today the H-T has a long story by Dawn Hewitt headed "Indiana bat dictates I-69 work schedule." It begins:
All trees greater than 3 inches in diameter that must come down for construction of I-69 must have been cut by now. Those that weren’t will have to wait until October to be felled — because of a bat.

Female Indiana bats, a species on the federal endangered species list, give birth to their pups under loose bark on big trees between April 1 and Sept. 30.

This time of year, female bats form maternity colonies — about 100 bats each — under the loose bark of old trees, said Lori Pruitt, the endangered species coordinator for the state of Indiana for the U.S. Fish and Wildlife Service, based in Bloomington.

Fourteen such maternity colonies have been found along the route of I-69 in Indiana, including four in Section 4, between Bloomington and southeastern Greene County, according to the highway’s final environmental impact statement.

“By the deadline of April 1, we will have removed all trees 3 inches in diameter or larger that need to be removed for construction purposes on the contracts that have been awarded,” said Cher Elliott, spokeswoman for the Indiana Department of Transportation.

There is much more interesting information about Indiana bats in the story.

Posted by Marcia Oddi on Sunday, April 01, 2012
Posted to Environment | Ind. Trial Ct. Decisions

Ind. Decisions - "Judge denies injunction; Evansville smoking ban to take effect Sunday"

That story by Arek Sarkissian II appeared in yesterday's Evansville Courier & Press. Some quotes:

EVANSVILLE — The rejection of two temporary injunctions against a city smoking ban set to start Sunday left bar and club owners wondering if they should continue fighting, learn to cope or close.

But for officials at the Veterans of Foreign Wars Post No. 1114, one item of recourse was clear.

“Well, the only thing we can do now is make sure the City Council doesn’t get reelected,” said Randy Muston, quartermaster for the West Side VFW post. “Other than that, we aren’t sure what we’re going to do.”

On Friday afternoon, Judge Robert Pigman denied two injunctions filed by 29 bars and eight private clubs to stop a city smoking ban that takes effect 12 a.m. Sunday.

Vanderburgh County Health Department Director David Gries said his agency shares enforcement of the smoking ban with local law enforcement, but reporting violations is up to the public.

“We’re leaving it in the hands of the clubs and tavern owners to follow the law,” Gries said. “What we’ll rely on is the general public making any calls or complaints, and we’ll follow up on those.”

Today this follow-up story that begins:
Plaintiffs of two failed temporary injunctions against a city smoking ban said on Saturday they plan to meet this week to determine whether they will appeal.

Attorney Les Shively, who filed a lawsuit on behalf of a group of eight private clubs, said he will meet with his clients Monday and reveal their official decision Wednesday in a meeting with Judge Robert Pigman in Vanderburgh County Circuit Court.

Also on Saturday, Joe DeVasier, who owns the Corner Pocket, said he plans to meet on Monday with fellow bar owners to determine the next step.

More quotes:
On Friday afternoon, Pigman ruled against two temporary injunctions accompanying the lawsuits. Berger and Shively argued in court Wednesday that their clients are similar to Casino Aztar, which City Council exempted from the ban. The attorneys said the bars, clubs and Aztar all pay taxes and offer similar entertainment.

Pigman wrote in his ruling that Aztar was liable for different taxes that have a more direct effect on the city. He also ruled Aztar provides a different experience for its customers.

Berger and Shively filed lawsuits on March 12 after City Council voted in the smoking ban on Feb. 13. The smoking ban is a more strict version of one passed last month by the General Assembly, which exempted casinos, bars and private clubs. A clause in the state law allows the city's ban to be enforced because it is more restrictive. Evansville was the first major city in the state to force its bars and private clubs to go smoke free.

Posted by Marcia Oddi on Sunday, April 01, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Indiana Youth Group, a support group for gay youth, is now in the spotlight"

Updating a long list of ILB entries, including this most recent one from March 21st, headed "Fallout over gay youth group's license plate continues: Gay youth support group vows legal fight against state action," the Indianapolis Star today has a long feature story on the organization reported by Chris Sikich that begins:

Indiana Youth Group is the small, and for a time, unnoticed organization at the center of a long-simmering controversy over sexual orientation.

The group helps self-identified lesbian, gay, bisexual, transgender and questioning youth, ages 12-20.

Advocates say it boosts the self-esteem of young people at their most vulnerable age. But conservative activists and politicians disagree with the efforts of the nonprofit, questioning the age-appropriateness of the material it uses.

The debate over issues regarding sexual orientation of the young and old has been a political tempest in Indiana for several years. Republican lawmakers will take their final steps in 2013 to enact a constitutional amendment banning gay marriage and civil unions -- and that will be settled by popular vote in 2014.

The Indiana Youth Group found itself in the spotlight after some conservatives protested its specialty license plate.

The Bureau of Motor Vehicles issued the plate in December after the nonprofit filed a lawsuit. Less than three months later, state senators found a contractual miscue and convinced the BMV to revoke the plate. The issue likely is headed to the courts.

Posted by Marcia Oddi on Sunday, April 01, 2012
Posted to Indiana Government

Law - "Ex-partner in Big Law blogs it all"

From a long story yesterday by Ameet Sachdev of the Chicago Tribune:

Steven Harper had a long and successful career as a trial lawyer. He was a partner at Chicago-based Kirkland & Ellis, one of the nation's largest and most prestigious law firms, and made enough money to leave the practice in 2008 at the age of 54.

He hasn't quietly gone into retirement. Harper is one of the most outspoken critics of large law firms, writing a blog titled "The Belly of the Beast" and self-publishing a novel that paints a harsh picture of life inside a big firm.

His transformation hasn't gone unnoticed among friends and former colleagues.

"I was surprised that a guy with all his talent as a trial lawyer would suddenly become a commentator on the business of law," said Fred Bartlit, a former Kirkland partner best known for guiding George W. Bush's legal effort in Florida's disputed election in 2000. "What happened?"

Harper shrugs when asked and says he didn't have an epiphany. His commentary also doesn't come across as the ranting of a frustrated lawyer with deep-seated bitterness that could only be expressed after leaving the profession.

"I was never unhappy at Kirkland," said Harper, who is working on a nonfiction book about the legal profession that will be published next year. "I'm simply observing an evolution of a practice. The practice of law inside large firms in the 1990s was dramatically different than it is today."

Harper spent his entire 30-year career in private practice at Kirkland. He would be regarded as an anachronism in today's large law firm, often colloquially called "Big Law," where lawyers come and go like free agents in professional sports.

Here is the blog, The Belly of the Beast.

Posted by Marcia Oddi on Sunday, April 01, 2012
Posted to General Law Related