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Thursday, May 31, 2012

Ind. Gov't. - Former CJ of Indiana accepts joint SPEA/IU McKinney Law appointment

Here is the press release from IUPUI, headed "Former Chief Justice Randall Shepard will join IU Public Policy Institute (PPI) as first Executive in Residence." A quote:

As Executive in Residence, Shepard will work with PPI on finding ways nonpartisan research and data can help leaders understand the challenges and opportunities of the future. Under the two-year joint academic appointment with SPEA and the IU McKinney School of Law, Shepard will lead executive seminars, and mentor faculty and staff as they develop academic programs focused on the relationship between law and public policy.

Posted by Marcia Oddi on Thursday, May 31, 2012
Posted to Indiana Government

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

In USA v. Aaron Davis (ND Ind., Moody), a 44-page opinion, ND Illinois District Judge Ruben Castillo, sitting by designation writes:

This is a consolidated appeal of the denial of six defendants’ motions to reduce their sentences pursuant to 18 U.S.C. § 3582(c)(2) based on the retroactive crack cocaine amendments to the United States Sentencing Guidelines. Defendants raise a number of challenges on appeal. For the reasons discussed below, we affirm the judgments entered by the district court.

Posted by Marcia Oddi on Thursday, May 31, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - One today from Supreme Court

In Mickey Cundiff v. State of Indiana, an 8-page, 5-0 opinion, Justice David writes:

In this case, the State filed charges against the defendant, and after a brief period of incarceration, the defendant was released. Shortly after his release, the defendant was again incarcerated but on a probation-revocation case. While he was incarcerated on the probation-revocation case, the defendant filed a Criminal Rule 4(B) motion, requesting a speedy trial on the pending charges.

The trial court denied the motion. We affirm, holding that Criminal Rule 4(B) is available to a defendant only when the defendant is held on the pending charges for which he requests a speedy trial. * * *

Our analysis begins with this Court’s decision in Poore v. State, 685 N.E.2d 36 (Ind. 1997). * * *

Ultimately, the most reasonable interpretation of Poore’s language on Criminal Rule 4(B)’s availability—“incarceration due to the pending charge at issue need not be the only reason the defendant is in jail”—is the following: for Rule 4(B) to apply, the defendant must be incarcerated on the charge for which he seeks a speedy trial, and as long as that requirement is met, the availability of Rule 4(B) is not affected if the defendant is also incarcerated on other grounds. 658 N.E.2d at 40. Accordingly, Criminal Rule 4(B) was not available to Cundiff on the pending charges for which he sought a speedy trial because he was not incarcerated on those charges.

Posted by Marcia Oddi on Thursday, May 31, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)

For publication opinions today (1):

In Fred N. Martinez v. Susan K. Deeter , a 21-page opinion, Judges Barnes writes:

Fred Martinez (“Father”) appeals the trial court’s child support modification order, and Susan Deeter (“Mother”) cross-appeals the trial court’s child support modification order. We affirm in part, reverse in part, and remand.

Father raises three issues on appeal, which we consolidate and restate as whether the trial court erred when it calculated child support owed by him for 2007. On cross-appeal, Mother raises four issues, which we consolidate and restate as:

I. whether the trial court erred by including the children’s Social Security survivor benefits in her weekly gross income for purposes of child support and post-secondary education expenses;
II. whether the trial court erred by denying Mother’s request for attorney fees; and
III. whether the trial court erred by ordering that the child support arrearage owed by Father be paid first to Mother’s attorneys. * * *

The trial court erred by making conflicting findings regarding Father’s 2007 child support and by including survivor benefits received by the children in the calculation of Mother’s weekly gross income. However, we affirm the trial court’s denial of Mother’s request for attorney fees. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

NFP civil opinions today (7):

Wells Fargo Bank v. Castalia Homes, LLC; Jan N. Kelsey (NFP)

Noblesville Schools Corporation v. Review Board of the Indiana Department of Workforce Development and Ryan Shelton (NFP)

In Re the Paternity of N.B.; K.B. v. A.B. (NFP)

In Re the Marriage of: Alexander Nikolayev v. Natalia Nikolayev (NFP)

Jeffrey Riggs and Mark Ashmann v. Mark S. Weinberger, M.D., Mark Weinberger, M.D., P.C., Merrillville Center for Advanced Surgery, LLC, and Nose and Sinus Center, LLC (NFP)

In the Matter of V.C., Child Alleged to be in Need of Services: V.S. v. Indiana Dept. of Child Services (NFP)

Richard C. Gallops and Patricia A. Gallops v. David Hubbard, Personal Representative of the Estate of Thelma M. Hubbard, Deceased (NFP)

NFP criminal opinions today (4):

Larry Gene Gore v. State of Indiana (NFP)

Anthony Stansbury v. State of Indiana (NFP)

Susan Grund v. State of Indiana (NFP)

Dusty E. Rhodes v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 31, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: "Sex offenders fight for right to use Facebook"

Updating this ILB entry from earlier today, Judge Tanya Walton Pratt held the hearing this morning and Charles Wilson of the AP was there. His story begins:

INDIANAPOLIS (AP) - A federal judge said Thursday she plans to rule within a month on the constitutionality of an Indiana law that bans registered sex offenders from using social networking websites where they could prey on children.

The American Civil Liberties Union of Indiana is heading the class-action suit on behalf of a man who served three years for child exploitation, along with other sex offenders who are restricted by the ban even though they are no longer on probation. Federal judges have barred similar bans in Nebraska and Louisiana. Similar restrictions remain in effect in New York, Illinois and North Carolina.

In a one-hour hearing at U.S. District Court in Indianapolis, Judge Tanya Walton Pratt questioned attorneys about convicted sex offenders' civil rights and whether the state law is outdated in the age of Facebook, LinkedIn and dozens of other social networking sites.

ACLU attorney Ken Falk argued that even though the 2008 law is only intended to protect children from online sexual predators, it also prevents sex offenders from using social media for political, business and religious activity such as using Facebook to follow the pope or comment on newspaper websites, posting a profile on LinkedIn or following presidential candidates on Twitter.

Falk said the law violates the rights of communication, receiving information and association, all of which the U.S. Supreme Court has ruled are guaranteed by the First Amendment. He also argued that the ban was unnecessary because Indiana already has a law that makes it a crime to use the Internet to contact a child for the purposes of sexual gratification.

Indiana Deputy Attorney General David Arthur argued that the 2008 ban is limited only to social networking sites that allow access by children, and that Facebook, Twitter and similar sites aren't the only forms of communication.

"We still have television. We still have radios. And believe it or not, people still talk face-to-face," he said. Arthur also said the ban doesn't apply to email or Internet message boards.

Falk said social media are almost indispensable. "It's not enough to say that the plaintiffs can still write letters or go to meetings," he said. "These are not adequate alternatives for instant communication."

Posted by Marcia Oddi on Thursday, May 31, 2012
Posted to Indiana Courts

Ind. Decisions - "Indiana Lawyer Is Reprimanded for Threatening Ethics Complaint" [Updated]

A report on this ruling was first posted May 26th in the Legal Profession Blog, followed by an entry today in the ABA Journal Blog.

Here is the 2-page Supreme Court Order, filed May 25th: In re Julia E. Dimick. From the Order:

Violation: The parties agree that by using the threat of reporting professional misconduct to obtain a settlement proposal in a prospective civil action, Respondent violated Indiana Professional Conduct Rule 8.4(d), which prohibits engaging in conduct prejudicial to the administration of justice.

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent's misconduct.

The ABA Blog writes:
Dimick was represented by Kevin McGoff of Bingham Greenebaum Doll. Asked if there were any lessons for lawyers in the case, he offered this: “My view is it always pays to carefully proofread and, if warranted, edit your letters and emails before hitting the 'send' button or dropping them in the letter box.”
ILB Note: Although the Order was filed on Friday, May 25th, and the Legal Profession Blog wrote about it the following day, the ILB does not believe the Order was posted online on the Court's website until earlier this week.*

[Updated at 4:36 PM] *Kathryn Dolan, Indiana Supreme Court Public Information Officer, writes to say: "The order was posted to the courts.in.gov website on Friday."

Posted by Marcia Oddi on Thursday, May 31, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Two Bankruptcy Judge Positions in SD Indiana open

From the announcement:

The Judicial Council of the Seventh Circuit is now seeking applicants for two bankruptcy judge positions for the United States District Court for the Southern District of Indiana.

Subsequent to the notice seeking applicants for the position currently occupied by retiring Bankruptcy Judge Anthony Metz III, Bankruptcy Judge Frank J. Otte announced his retirement as an active judge at the end of the year. Judge Otte will continue to serve as a senior judge.

The committee has therefore set a new deadline for applications of June 22, 2012. All applicants will be considered for both positions.

More information and the application here.

Posted by Marcia Oddi on Thursday, May 31, 2012
Posted to Indiana Courts

Ind. Gov't. - "Public Access Counselor sides with city of South Bend"

Tom Moor reports today in the South Bend Tribune. The story begins:

SOUTH BEND -- Indiana's Public Access Counselor ruled this week the city of South Bend did not violate the Access to Public Records Act in response to a formal complaint filed by The Tribune seeking more information as to why former police chief Darryl Boykins was demoted.

The Tribune filed the complaint against the city on April 26, claiming three news releases sent in late March regarding Boykins' demotion did not provide an appropriate "factual basis," required by Indiana Code, as to why the former chief was demoted. The Tribune claimed it only made a mention of a federal investigation into the recording of phone calls but nothing Boykins, specifically, did wrong.

The city responded to The Tribune's complaint by claiming the demotion took place privately, the meeting was not recorded and no further writing existed.

In an advisory opinion released this week, Public Access Counselor Joseph Hoage, based on prior cases, ruled that a public agency is not required to create a record containing a certain minimum amount of information. Instead, Hoage ruled, the city is only required to provide to the public access of records which already exist.

"That's the way the law is being interpreted by our office," Hoage said.

When asked if public agencies can demote and fire people without any recordings of it, he said that's possible in some cases.

"They would not be doing anything wrong because there is no requirement to create a record in response to a request," he said.

Hoage added that while an agency is not required to create a record, it may if it chooses to. The city did not in this case.

The opinion is not yet available online.

Posted by Marcia Oddi on Thursday, May 31, 2012
Posted to Indiana Government

Ind. Courts - More on: "Sex offenders fight for right to use Facebook"

Updating this ILB entry from yesterday, referencing Charles Wilson of the AP's long story, an Indiana case was one of those highlighted:

The American Civil Liberties Union of Indiana, which is challenging Indiana's 2008 law, argues that it's unconstitutional to bar sex offenders who are no longer in prison or on probation from using basic online services.

"To broadly prohibit such a large group of persons from ever using these modern forms of communication is just something the First Amendment cannot tolerate," said Ken Falk, legal director of Indiana's ACLU chapter.

The case is scheduled for a court hearing Thursday. The main plaintiff, referred to in the suit only as "John Doe," was convicted on two counts of child exploitation in 2000 and released from prison in 2003, according to federal court documents.

The man cannot send questions to televised debates or comment on news stories on local websites because doing so requires a Facebook account, the ACLU contends. Neither can he communicate with his out-of-state family members using the social network or post his business profile on LinkedIn.

The plaintiff is also forbidden to supervise his teenage son's Internet use or investigate questionable friend requests sent to his child, the ACLU claims.

Prosecutors argue that social networking sites aren't the only forms of communication.

"The fact is that telephones still work. People including registered sex offenders may still congregate, discuss, debate and even demonstrate," Indiana Deputy Attorney General David Arthur wrote in a brief.

Television and radio are still widespread and offer numerous call-in shows. Newspapers still accept letters to the editor, he added.

The ACLU says precedent is on its side. The lawsuit cites a February ruling in Louisiana in which U.S. District Judge Brian Jackson found that the state's prohibition was too broad and "unreasonably restricts many ordinary activities that have become important to everyday life."

Louisiana lawmakers passed a new law this month that more narrowly defines what sites are prohibited. News and government sites, email services and online shopping are excluded from the new rules, as are photo-sharing and instant-messaging systems. The measure takes effect Aug. 1.

The case is John Doe v. City of Indianapolis. Here is the complaint. Here is the docket, as of today.

Posted by Marcia Oddi on Thursday, May 31, 2012
Posted to Indiana Courts

Wednesday, May 30, 2012

Ind. Decisions - 7th Circuit ruling on "dealing with indigent litigants who abuse the court system"

See the How Appealing post here. The per curiam opinion is in Gay v. Chandra.

Posted by Marcia Oddi on Wednesday, May 30, 2012
Posted to Ind. (7th Cir.) Decisions

Law - "Sex offenders fight for right to use Facebook"

Charles Wilson of the AP has this long story today, appearing in many publications (see here also) and other media sites throughout the country. The story begins:

INDIANAPOLIS (AP) - Registered sex offenders who have been banned from social networking websites are fighting back in the nation's courts, successfully challenging many of the restrictions as infringements on free speech and their right to participate in common online discussions.

The legal battles pit public outrage over sex crimes against cherished guarantees of individual freedom and the far-reaching communication changes brought by Facebook, LinkedIn and dozens of other sites.

"It's going to be really, really hard, I think, to write something that will achieve the state's purpose in protecting children online but not be restrictive enough to be unconstitutional," said Carolyn Atwell-Davis, director of legislative affairs at the Virginia-based National Center for Missing & Exploited Children.

Courts have long allowed states to place restrictions on convicted sex offenders who have completed their sentences, controlling where many of them live and work and requiring them to register with police. But the increasing use of social networks for everyday communication raises new, untested issues. The bans generally forbid offenders to join social networks or chat rooms or use instant-messaging programs _ just a few of the online tools that civil liberties advocates say have become virtually indispensable to free speech.

After hearing challenges, federal judges in two states threw out laws or parts of laws that they deemed too stringent. In Nebraska, the decision allowed sex offenders to join social networks. And in Louisiana, a new law lets offenders use the Internet for shopping, reading news and exchanging email. A case filed against Indiana's law is under review.

Posted by Marcia Oddi on Wednesday, May 30, 2012
Posted to General Law Related

Environment - "The use of coal is declining because of new pollution rules and a surge in natural gas production"

A very long story today in the NY Times, written by Eric Lipton. Some quotes:

[C]oal is in a corner. Across the United States, the industry is under siege, threatened by new regulations from Washington, environmentalists fortified by money from Michael R. Bloomberg, the billionaire mayor of New York City, and natural gas companies intent on capturing much of the nation’s energy market. * * *

Coal and electric utilities, long allied, are beginning to split. More than 100 of the 500 or so coal-burning power plants in the United States are expected to be shut down in the next few years. While coal still provides about a third of the nation’s power, just four years ago it was providing nearly half.

The decline is largely because new pollution rules have made coal plants more costly, while a surge in production of natural gas through the process of hydraulic fracturing, known as fracking, has sent gas prices plummeting. Together, the economics of coal have been transformed after a century of dominance in Washington, state capitals and the board rooms of electric utilities.

“The math screams at you to do gas,” said Mr. Morris, whose company is the nation’s largest consumer of coal.

Environmental groups, after years of targeting coal plants as leading sources of air pollution, have moved in for the kill. “We never thought we would get to a place where coal plants are falling so fast,” said Bruce Nilles, the director of the Sierra Club’s Beyond Coal initiative. It has been aided by $50 million from Mr. Bloomberg, who views the campaign as part of a public health effort, and $26 million from an odd bedfellow: the top official of a natural gas company. * * *

But the coal industry is mustering all the weapons it can: lobbying, legislation, litigation and a multimillion-dollar advertising campaign trumpeting the benefits of “clean coal.”

In addition, the ILB just received a press release from the Alliance for Clean Rural Environment in Evansville that begins:
(Evansville, IN) The Aluminum Company of America (ALCOA, NYSE: AA) withdrew its second permit request with the Indiana, Warrick County Board of Zoning Appeals to open its new proposed surface coal mine, Liberty Mine. Liberty Mine is slated to be operated by Vigo Coal Company. The intended coal mine encompasses the entire acreage of Squaw Creek Coal Mine, which has had national news attention covering the dumping of millions of gallons of hazardous chemicals.

Posted by Marcia Oddi on Wednesday, May 30, 2012
Posted to Environment

Ind. Decisions - "Bei Bei Shuai is at the sharp end of the creeping criminalisation of pregnancy across America."

That is a quote from a very long story today in The Guardian, written by Ed Pilkington. The story has an Indianapolis byline, meaning the reporter was here in town to prepare it. Some quotes:

Bei Bei Shuai is at the sharp end of the creeping criminalisation of pregnancy across America. Women who lose their unborn babies – whether in cases of maternal drug addiction or in Shuai's case a failed suicide attempt – are increasingly finding themselves accused of murder.

Speaking publicly for the first time, Shuai told the Guardian she is determined to defend herself as she prepares for a murder trial scheduled for December. "I have a strong desire to stay in America," she said, three days after she had been released from jail on $50,000 bail. "I want to stay and fight this case. I have the best legal team, and I'm not afraid anymore to face the charges." * * *

"There is no doubt that Shuai was suffering from a severe mental illness," her defence lawyer Linda Pence said. She first met the defendant when she was in the mental wing, a few days after Angel died. "I personally observed a very depressed woman, a grief-stricken individual."

That is not how the prosecutor saw it. For the first time in Indiana's 196-year history, the state has applied felony charges against a woman that hold Shuai criminally liable for the outcome of her pregnancy. Earlier this month the Indiana supreme court declined to hear the case, rendering a 3 December murder trial almost inevitable.

Lawyers and women's advocates in Indiana were astonished by the prosecution's hard line. To attempt to take one's own life is not a crime in Indiana, so the decision to charge a pregnant woman appeared to be creating a double standard.

The feticide law, introduced in Indiana in 1979, was designed with violent third parties in mind: abusive boyfriends or husbands who attacked their pregnant partners, causing them to lose their unborn babies. It was enhanced to carry a maximum sentence of 20 years in 2007 after a bank robbery in which a pregnant woman was shot in the stomach, killing her fetus but leaving her alive.

Posted by Marcia Oddi on Wednesday, May 30, 2012
Posted to Ind. App.Ct. Decisions

Stage Collapse - "Indiana fair lawsuits won't go to trial until 2014"

So reports Charles Wilson of the AP today:

Lawyers handling the cases have asked Marion Superior Court Judge Theodore Sosin to set the case for some time after April 1, 2014. An order from Sosin outlines a plan to consolidate pre-trial preparation for the various cases.

Posted by Marcia Oddi on Wednesday, May 30, 2012
Posted to Stage Collapse

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Dianne L. Perkins v. Jeffrey Stesiak, and Pfeifer, Morgan and Stesiak , a 6-page opinion, Judge Friedlander wrrites:

Dianne Perkins appeals the entry of summary judgment in favor of Jeffrey Stesiak and Pfeiffer, Morgan & Stesiak (referred to collectively as Stesiak) in her legal malpractice action against Stesiak. On appeal, Perkins presents the following restated issue for review: Did the trial court err in determining that Perkins had no cognizable claim for emotional distress and, thus, granting summary judgment on that ground? We affirm.
In Term. of Parent-Child Rel. of D.K.; O.K. v. Indiana Department of Child ServicesJames Androusky, II, Individually and as Personal Rep. of the Estate of James Androusky, III, Deceased v. Cole A. Walter and Tammra Androusky , a 12-page opinion, Judge Barnes writes:
O.K. (“Mother”) appeals the trial court’s termination of her parental rights to her son, D.K. We affirm.

The sole restated issue before us is whether there is sufficient evidence to support the termination of Mother’s parental rights. * * *

In sum, there is ample evidence that Mother took little to no steps to correct the problems that led to D.K.’s removal and continued placement outside her care. Even after she was given a “second chance” at not having her parental rights terminated following the January 2011 hearing, she failed to take even the initial step of meeting with the service provider counselor. The trial court’s finding that there was a reasonable probability that the conditions leading to D.K.’s removal would not be remedied was not clearly erroneous.

In Clifton Ervin v. State of Indiana , 7-page opinion, Judge Baker writes:
Appellant-defendant Clifton Ervin brings this interlocutory appeal, challenging the trial court’s denial of his motion to suppress. * * *

At no time did Officer Sedberry arrest Ervin for violating a law regulating the use of a motor vehicle. Rather, it is apparent that Officer Sedberry’s acts of drawing his weapon and pointing the gun at Ervin were in response to the threatening and aggressive behavior that Ervin initiated, and his purpose was to keep Ervin away from his family to ensure their safety.

As a result, because Indiana Code section 9-30-2-2 is not implicated in these circumstances and Ervin does not contend that his constitutional rights were violated in this instance, the trial court properly determined that the evidence seized by the uniformed on-duty police officers should not be suppressed. Thus, we affirm the judgment of the trial court in this regard and remand this cause for trial.

The judgment of the trial court is affirmed and this cause is remanded for trial.

In James Androusky, II, Individually and as Personal Rep. of the Estate of James Androusky, III, Deceased v. Cole A. Walter and Tammra Androusky, a 14-page opinion, Judge Friedlander writes:
James Androusky II (Father), individually and as personal representative of the estate of James Androusky III (James), filed a child wrongful death action against Cole Walter following the drowning death of James in Walter’s residential swimming pool. Father appeals the jury verdict in favor of Walter, presenting the following restated instructional issues:

1. Did the trial court abuse its discretion by instructing the jury to determine whether James was an invitee or licensee?
2. Did the trial court abuse its discretion by instructing the jury regarding
abandonment under the Child Wrongful Death Act?
3. Did the trial court improperly instruct the jury regarding a state administrative pool safety regulation?
4. Did the trial court properly instruct the jury on the effect of a parent’s
failure to supervise his or her child around a known or obvious condition upon the land?

We affirm. * * *

In sum, although the instruction based upon Harradon was not an entirely correct statement of the law, the instruction did not adversely affect Father’s substantial rights. Under the specific circumstances of this case as set out above, we hold as a matter of law that Walter did not breach any duty owed to James and the sole proximate cause of James’s death was Mother’s lack of supervision.

NFP civil opinions today (4):

In Re the Term. of the Parent-Child Rel. of J.R.: K.C. v. The Indiana Dept. of Child Services (NFP)

Kamal El-Adnani v. State of Indiana (NFP)

The Estate of Rose Graves v. Anonymous Nursing Home (NFP)

David E. Schalk v. Yellow Book Sales and Distribution Co., Inc. (NFP)

NFP criminal opinions today (4):

Donald Everling v. State of Indiana (NFP)

Robert Allen Barker v. State of Indiana (NFP)

Mitchell L. Rogers v. State of Indiana (NFP)

Melvin Bishop v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 30, 2012
Posted to Ind. App.Ct. Decisions

Law - "Public-Place Laws Tighten Rein on Sex Offenders"

A long story today in the NY Times, reported by Ian Lovett. A few quotes:

In recent years, communities around the country have gone beyond regulating where sex offenders can live and begun banning them outright from a growing list of public places.

From North Carolina to Washington State, communities have designated swimming pools, parks and school bus stops as “child safety zones,” off limits to some sex offenders. They are barred from libraries in half a dozen Massachusetts cities, and from all public facilities in tiny Huachuca City, Ariz.

“Child safety zones are being passed more and more at the city and county level,” said Elizabeth Jeglic, a professor at John Jay College of Criminal Justice. “It’s becoming more and more restrictive. They’re not only limiting where sex offenders can live, but they’re limiting their movement as well.”

The proliferation of such restrictions reflects the continued concerns of parents and lawmakers about potential recidivism among sex offenders. But it has also increasingly raised questions about their effectiveness, as well as their fairness.

Opponents have dismissed “child safety zones” as unenforceable, saying they are designed to make politicians look tough on crime and drive sex offenders from the area, not make children safer.

“These are cheap laws that can be passed to make people feel good,” said Charles P. Ewing, author of “Justice Perverted: Sex Offense Law, Psychology, and Public Policy.”

Irene Pai, a lawyer with the Orange County public defender’s office, said “child safety zones” give parents a false sense of security, punishing many offenders who are not dangerous without actually stopping predators from entering parks. * * *

And, once one community has enacted “child safety zones,” they often spread quickly to nearby towns, as municipal governments fear becoming local havens for sex offenders.

Posted by Marcia Oddi on Wednesday, May 30, 2012
Posted to General Law Related

Environment - "Elkhart judge says VIM must pay disputed $150,000 fine"

The ILB has had a number of entries on VIM Recycling.

Tim Vandenack of the Elkhart Truth reports today in a long story:

ELKHART — VIM Recycling has to pay a $150,000 fine, an Elkhart County judge says.

The Indiana Department of Environmental Management and the Indiana Attorney General’s Office had asked for the stiff penalty and Elkhart Superior Court 1 Judge Evan Roberts last January granted the request. VIM operator Ken Will then asked last month that the fine be waived, prompting Evans to review his decision. * * *

The attorney general’s office and IDEM filed suit against VIM in December 2009 over a large pile of industrial wood waste piled on the wood recycler’s Old U.S. 33 grounds, located west of Elkhart. State officials said VIM illegally accepted the material, lacking the proper state permit, and had sought its removal.

The two sides reached an accord setting guidelines for the gradual removal of the wood, but the June 2011 deadline for VIM to get rid of it came and went without compliance, leading to the $150,000 fine. Soil Solutions, which bought out VIM on July 25 last year, actually got rid of the disputed wood, not VIM or Will, according to the attorney general’s office.

VIM, which recycled industrial wood waste, grinding it into mulch and animal bedding, has long been a target of regulators and neighbors stemming from dust and other emissions. Neighbors, who say the operation poses a health threat, are suing VIM and Soil Solutions in U.S. District Court.

Posted by Marcia Oddi on Wednesday, May 30, 2012
Posted to Environment

Vacancy #2 on Supreme Court 2012 - Applications now available for Justice Sullivan's position, they are due June 29th

Timing just announced: The Judicial Nominating Commission will conduct initial public interviews of qualified candidates in Indianapolis on July 17- 18, followed by second interviews on August 8-9. Here are the details and the application.

If you are thinking about applying, see this ILB entry from yesterday about the upcoming CLE program, set for Thursday, June 7th, on "Demystifying the Judicial Selection Process." The panel includes two former members of the Judicial Nominating Commission, as well as federal district judge Jane Magnus-Stinson and Indiana Tax Court judge Martha Wentworth.

Posted by Marcia Oddi on Wednesday, May 30, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Gov't. - More on "State ends dispute over child welfare testimony"

Updating this ILB entry from Saturday, quoting a story by Rebecca S. Green of the Fort Wayne Journal Gazette, the paper has an editorial today headed "Agency policy poses ‘ludicrous’ danger." Some quotes:

State officials are again attempting to move the power to protect Indiana’s vulnerable children away from the courts system to a massive bureaucracy. The most recent example, being played out in Allen County courts, is an unacceptable, inexplicable attempt to split the hairs of the law in a way that empowers the bureaucracy and endangers children.

Like police officers, caseworkers for the state’s massive Department of Child Services investigate reports of children being abused and neglected.

Like police officers, they frequently testify in court about their findings.

Often, that testimony is in a closed hearing to determine whether the state should classify a possible victim of abuse or neglect as a Child in Need of Services. Sometimes, that testimony is in an open hearing in criminal court because a defendant – possibly a parent or caregiver – is charged with child abuse or a related crime.

But after years of following this practice, attorneys for DCS – the bureaucracy – have resisted allowing caseworkers to testify in criminal hearings, claiming that the information that caseworkers compile is confidential and cannot be divulged in open court.

Consider what this means. A state agency is arguing that state investigators specifically responsible for determining whether a child is abused cannot testify about what they learned about the abuse.

“DCS exists to protect children,” Allen County Prosecutor Karen Richards writes in a court briefing she filed last week that seeks to force the testimony of a DCS worker. “For DCS to assert that their workers cannot cooperate in a criminal prosecution is ludicrous.” * * *

Unfortunately, this is not the first time the DCS has attempted to interfere with the court’s handling of abuse and neglect cases. At the behest of DCS Director James Payne, the General Assembly passed legislation in 2009 intended to give the DCS – not judges – final authority to determine where abused and neglected children should be placed. Prosecutors formerly had the ability to petition the court to allow the state to intervene in a child’s care; now, only DCS has that power.

Late last week, a DCS spokeswoman said the agency would withdraw its motions and work with Richards to address the concerns. But rather than backing off from the agency’s absurd position, the spokeswoman seemed to indicate the real problem was with Richards’ perception, saying the agency’s stand “has caused an inordinate degree of angst for the prosecutor.”

Any “angst” the prosecutor has experienced is not inordinate. In fact, the DCS position should cause anger and outrage in every Hoosier who cares about protecting children.

This issue could well be the topic of discussion at a court hearing this morning before Superior Court Judge Fran Gull. At some point, if the DCS continues to refuse to do its job, Gull and other judges should compel the testimony of DCS caseworkers in criminal cases.

Posted by Marcia Oddi on Wednesday, May 30, 2012
Posted to Indiana Government

Tuesday, May 29, 2012

Ind. Gov't. - Even more on: "Clark airport loses eminent domain lawsuit, owes $600,000"

Updating this earlier ILB entry from May 3, 2012, Braden Lammers reports in the Jeffersonville News & Tribune today:

Already cash-strapped Clark County is likely on the hook to pay more than $800,000 for a disputed appraisal at the Clark Regional Airport.

The county has been fighting a jury ruling that would have forced the county to pay the remainder of an $865,000 verdict to Margaret Dreyer, whose property was purchased in order to extend the airport’s runway. * * *

According to Clark County Court records, the county’s motion seeking partial relief was denied last week.

Along with the difference in the appraised amount the county still owes Dreyer, the county must also pay attorney’s fees of $24,035 and interest accrued since the partial payment was made. The total, including the amount still owed, is nearly $839,000.

Posted by Marcia Oddi on Tuesday, May 29, 2012
Posted to Indiana Government

Ind. Courts - Hancock County prosecutor called to active duty

Here is the message Hancock County Prosecutor Michael Griffin posted today:

I am being called to active duty with the U.S. Army. I report to Ft. Benning, Georgia on July 21 and will deploy to Guantanamo Bay, Cuba on July 28. For nine months, I will serve as Chief of Military Justice for JTF-GTMO. I will return to the United States on or about March 31, 2013.

I will continue to serve as Hancock County Prosecuting Attorney and will work, as I am able, during off-duty hours.

Please keep my family and me in your thoughts and prayers.

Michael Griffin

Posted by Marcia Oddi on Tuesday, May 29, 2012
Posted to Indiana Courts

Ind. Courts - Over a dozen challenges filed in federal court to Indianapolis smoking ban

Jon Murray of the Indianapolis Star writes today in his IndyStar politics blog:

I ran a search of federal court records today, and the total is now up to 13 lawsuits, up three since late last week. (The lawsuits involve 11 bars and one patron — they’re listed below.)

And therein, potentially, lie hurdles for the bars — aside from the history of smoking bans typically holding up in court elsewhere, despite many legal challenges. These bars, instead of banding together in one single case, filed separate cases, using identical fill-in-the-blank lawsuits; in one case, an owner and a manager for the same bar each filed a lawsuit. They all filed the lawsuits without the aid of attorneys, which obviously don’t come cheap. A couple of the lawsuits are hand-written. Some include mention that they plan to request the aid of court-appointed attorneys. (Unlikely in a civil case.)

Also, the city doesn’t appear to have received proper summonses for these cases, despite some of the suits being filed in the first half of May. That would mean an apparent failure by the plaintiffs to notify the named defendants (the Indianapolis mayor’s office and the City-County Council) — a responsibility that falls to them, not the court. A case can’t proceed until all parties are aware of the case.

Murray goes on to list the plaintiffs in the separate cases.

ILB: No, attorneys are not cheap. It is also not that cheap to file a lawsuit in federal court; I believe the fee is $350 ...

Posted by Marcia Oddi on Tuesday, May 29, 2012
Posted to Indiana Courts

Ind. Courts - More on "Demystifying the Judicial Selection Process"

Updating this ILB entry from May 21st, here are more details on the upcoming CLE program, set for Thursday, June 7th:

Cosponsored by the ISBA Women in the Law and Improvements in the Judicial System committees

$25 for ISBA members and non-members alike

Event @ I.U. McKinney School of Law, Indianapolis • 1.5 hrs. CLE pending

Download a registration form or register by phone, Sherry Allan, 800.266.2581, or online (log in & click on "Register for Events" on the left at www.inbar.org).

Curious about the process lawyers go through to become appellate judges? Whether your interest in the state judiciary is vocational, historical, observational or purely theoretical, learn more by attending “Demystifying the Judicial Selection Process.” Members of the legal community who have served different roles in this process will share their experiences and answer your questions. How do courts benefit from diversity? What statutory criteria apply? We encourage lawyers of any age or political leaning to become better informed. Find out if you’ve got what it takes, now or in the future.

Confirmed speakers include John Trimble, managing partner, Lewis Wagner, LLP, and former member of the Judicial Nominating & Qualifications Commissions; the Hon. Jane Magnus-Stinson, judge of the U.S. District Court for the Southern District of Indiana and former counsel to Gov. Bayh; Christine Keck, director of government relations for Energy Systems Group and former member of the Judicial Nominating & Qualifications Commissions; and the Hon. Martha Wentworth, judge, Indiana Tax Court.

This program is not limited to potential applicants for the next or any other judicial opening, but in an effort to provide greater access for those who might consider applying, people who attend this session will have access to two confidential support services offered by the ISBA at no additional cost:

1. At your request attorney volunteers will proofread some or all or your application and provide feedback.

2. Also upon request, the ISBA will conduct a confidential and realistic mock interview.

Posted by Marcia Oddi on Tuesday, May 29, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

Jason Tye Myers v. Charles R. Deets III, Deets & Kennedy, and Great American Insurance Group is an 11-page, 2-1 opinion by Judge Najam, with Judge Riley dissenting. The issue in dispute is whether Great American is entitled to a judgment on the pleadings.

In Sisters of St. Francis Health Services, Inc. v. Eon Properties, LLC , an 18-page opinion, Judge Baker writes:

Here, a company that owns commercial property entered into a lease agreement and a series of amendments with a hospital. The amendments reduced the hospital’s space, thereby allowing a new tenant to lease that space under a separate lease and reducing the hospital’s rent obligation. However, one amendment provided that if the new tenant exercised its option to vacate after thirty-six months, then the hospital would be responsible for the new tenant’s rent for the last two years of the new tenant’s five-year lease. The new tenant exercised its option to vacate, thus triggering the hospital’s responsibility to pay the last two years of rent. The hospital disputes this, claiming that the new tenant failed to occupy the premises long enough or to properly exercise its option to vacate. We conclude that the plain intent of the parties was to allocate the risk that if the new tenant would vacate the premises early, then the property owner assumed the risk for the first three years of the five-year lease and the hospital assumed the risk for the last two years.
NFP civil opinions today (3):

James H. Privette v. Sherri E. Privette (Morris) (NFP)

Richard Clark Shockley v. Tammie Anne Shockley (NFP)

Laura L. Mosier v. Review Board of the Indiana Department of Workforce Development and Department of Health (NFP)

NFP criminal opinions today (7):

Jason B. Saunders v. State of Indiana

Philip G. Yeary v. State of Indiana (NFP)

Michael D. McGee v. State of Indiana (NFP)

Ryan Sheckles v. State of Indiana (NFP)

Damien Townsend v. State of Indiana (NFP)

Cornelio Martinez v. State of Indiana (NFP)

John R. Vicars v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 29, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 25, 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, May 25, 2012. It is one page (and 15 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Tuesday, May 29, 2012
Posted to Indiana Transfer Lists

Law - "Shareholders have little idea how companies are using their money in political campaigns. Only a handful of corporations voluntarily publicize their donations"

But that may be changing in the wake of Citizens United, according to this story in the Chicago Tribune reported by Ameet Sachdev. The headline: "Political advocacy piques shareholders' interest: Investors want to know about direct donations to candidates and hard-to-track contributions to trade groups." Some quotes from the beginning of the lengthy story:

Investors filed more than 100 resolutions this year asking companies to disclose what they spend on political advocacy, according to Institutional Shareholder Services, a proxy advisory service. The number of proposals for the first time exceeded shareholder resolutions on energy and environmental issues, which have long attracted significant interest from investors.

Shareholders want to know about direct donations to candidates as well as harder-to-track contributions to trade associations such as the U.S. Chamber of Commerce and other tax-exempt groups that support certain candidates or political parties. Their targets include influential Illinois companies Boeing Co., Allstate Corp. and Caterpillar Inc. All three companies came out against the proposals.

The growing shareholder pressure reflects a transformed political landscape where corporate interests and anonymous donors have greater influence on elections. Companies have always been active political participants, but a landmark 2010 Supreme Court decision expanded the scope of their spending.

Yet shareholders have little idea how companies are using their money in political campaigns. Only a handful of corporations voluntarily publicize their donations.

Posted by Marcia Oddi on Tuesday, May 29, 2012
Posted to General Law Related

Courts - "Text-message question headed to Pennsylvania Supreme Court: Cumberland County case could affect how attorneys use e-messages as evidence"

Thanks to How Appealing for pointing to this long and fascinating article today in the Lehigh Valley, Penn. newspaper, The Morning Call. The story is written by Peter Hall. Some quotes from the beginning of the lengthy story:

Text messages increasingly provide the proverbial smoking gun in court cases, but how far should prosecutors have to go to prove a person actually tapped out messages that provide evidence of a crime?

The state Supreme Court has agreed to hear arguments in the case of a central Pennsylvania woman convicted of drug offenses, largely on the strength of text messages found on her cellphone that prosecutors said were evidence she arranged drug deals.

A state appeals court ruled last year there was too much uncertainty about the author of text messages and that a county court judge should have kept them out of the trial.

Pennsylvania's highest court will consider whether the appeals court made a mistake and created confusion by reversing the conviction, noting in its order granting the appeal that a panel of judges ruled differently in an earlier case.

Attorneys say the question is one of many surrounding the role of new technology in court. As conveniences like cellphones and text messaging become ubiquitous, they play a larger role in solving and prosecuting crimes.

"Technology is the way these cases are going," said Terence Houck, Northampton County first deputy district attorney. "People cannot operate without this stuff, and because of that it is the central evidence in drug cases and homicide cases."

Houck said jurors should be allowed to decide whether text-message evidence is reliable and that making prosecutors take additional steps to prove the authenticity of electronic messages would be an impediment.

Temple University law professor Edward Ohlbaum said the appeal could potentially have a significant impact on the way attorneys use electronic messages as evidence, both in the criminal arena and in civil cases, such as those involving personal injury claims or divorce.

"What [the decision] is advising trial judges to say is: Just because a text message is found on someone's phone does not mean it was sent by the phone's owner," Ohlbaum said.

Posted by Marcia Oddi on Tuesday, May 29, 2012
Posted to Courts in general

Law - For an idea of the "amount of money that firms pay year in and year out for legal research products"

Thanks to @CherylNiemeier for the tweet that pointed to this post at 3 Geeks and a Law Blog which, starting with this information from Dewey & LeBouef's bankruptcy list of unsecured creditors -- "Thomson Reuters (owed $2.3 million), LexisNexis (owed $1.4 million.), and CCH (owed $650K) -- provides some insight into how much that firm was paying per month, per lawyer, per vender.

Posted by Marcia Oddi on Tuesday, May 29, 2012
Posted to General Law Related

Vacancy on COA 2012 - The five semifinalists chosen for the Court of Appeals seat

Jon Murray reported on May 16th in the Indianapolis Star:

The Indiana Judicial Nominating Commission [on May 16th] named two attorneys, two judges and a law professor as semifinalists for a vacancy on the Indiana Court of Appeals. * * *

The semifinalists * * * are: Marion Superior Court Judge Robert R. Altice Jr.; Abigail Lawlis Kuzma, Indianapolis, an attorney in the Indiana attorney general's office; Patricia Caress McMath, Indianapolis, an appellate attorney in the Marion County Public Defender Agency; Madison Circuit Judge Rudolph R. Pyle III; and Joel M. Schumm, Indianapolis, a clinical professor at Indiana University's Robert H. McKinney School of Law.

The interviews of the five semi-finalists will be Monday, June 4th. Three of the five names will be recommended to the Governor.

The ILB has been attempting to gather together information on each of the semi-final candidates for the benefit of ILB readers. As the ILB wrote in this May 16th entry:

  1. The interview process is the only opportunity the public has to take a good look at the candidate who is ultimately named judge. Thereafter, the only public input is with the retention vote, the first one two years after selection, and thereafter every ten years.
  2. This is the public's only opportunity to assess how well the Indiana judicial nominating process itself works. When the public can review the applications and get at least a glimpse, through ILB and other media reports, of what went on in the formal interviews, they are in a better position to assess whether the selection process works.
The ILB has obtained the 2012 applications of three semi-finalists, and the photos of two. In addition, as two of the candidates applied for the 2012 Supreme Court vacancy earlier this year, the ILB was able to link to those photos and an application. Another of the candidates applied for the Supreme Court vacancy in 2010, but specifically directed that the ILB not link to that online information.

Additional information was compiled from the two tables the ILB published May 16 of the law school grades and ages of the candidates.

Posted by Marcia Oddi on Tuesday, May 29, 2012
Posted to Vacancy on COA 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 Monday, May 28, 2012:

From Sunday, May 27, 2012:

From Saturday, May 26th, 2012:

Posted by Marcia Oddi on Tuesday, May 29, 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 5/28/12):

Friday, June 1st

Next week's oral arguments before the Supreme Court (week of 6/4/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/28/12):

Friday, June 1st

Next week's oral arguments before the Court of Appeals (week of 6/4/12):

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 Tuesday, May 29, 2012
Posted to Upcoming Oral Arguments

Monday, May 28, 2012

Environment - Still more on: "Biomass invades, threatens Southern Indiana"

Updating this ILB entry from May 13th, here is the 2nd of Linda Greene's 3-part series in the Bloomington Alternative "exploring the victories citizen action has achieved against biomass combustors planned for Crawford and Scott counties and the ongoing struggle against another in Dubois County." Part 2 is titled "Political pressure stopped Scott County biomass burner."

Posted by Marcia Oddi on Monday, May 28, 2012
Posted to Environment

Law - "Louisiana is the world’s prison capital. The state imprisons more of its people, per head, than any of its U.S. counterparts. First among Americans means first in the world. La’s incarceration rate is nearly triple Iran’s, seven times China's

The is the first paragraph from this opinion piece today in the NY Times, written by Charles M. Blow. But as he explains:

That paragraph opens a devastating eight-part series published this month by The Times-Picayune of New Orleans about how the state’s largely private prison system profits from high incarceration rates and tough sentencing, and how many with the power to curtail the system actually have a financial incentive to perpetuate it.

The picture that emerges is one of convicts as chattel and a legal system essentially based on human commodification.

Take a look at the remarkable amazing series, it goes on and on, too much to quickly describe.

I did check to see where Indiana ranks, which seems to be about in the middle of the states. And this story from Part 4, headed "Prison sentence reform efforts face tough opposition in the Legislature," parallels a similar experience in Indiana. It begins:

BATON ROUGE -- There was optimism in the air on the chilly day in January 2011 when Gov. Bobby Jindal announced an ambitious effort to overhaul Louisiana's sentencing laws. A bipartisan cross-section of law enforcement leaders surrounded the governor in the Capitol's fourth-floor conference room. Sheriffs, district attorneys and judges were there. So were leaders of the state House and Senate, along with good-government groups and national criminal justice experts.

For the first time in a decade, a political consensus was emerging that it was time to reduce Louisiana's highest-in-the-nation incarceration rate. In the past two decades, the state's prison population has more than doubled, with one of every 86 residents serving time.

Weeks later, the 22-member state Sentencing Commission, revived by Jindal after years of dormancy, produced a package of bills aimed at tackling some of the key factors driving the increase, including long sentences for nonviolent crimes and large numbers of offenders being sent back to prison for violations of parole or probation.

The five bills would eventually pass and get signed by the governor, but only after the most important parts -- the ones that would have actually reduced prison sentences -- were removed under pressure from sheriffs and district attorneys.

Posted by Marcia Oddi on Monday, May 28, 2012
Posted to General Law Related | Indiana Government

Ind. Gov't. - "License requirements vary wildly New study looks at fees, education needed for Indiana blue-collar jobs"

Niki Kelly of the Fort Wayne Journal Gazette reported yesterday on occupational licensing. Some quotes:

A new national study on the burdens of occupational licensing found that one in three workers needs a government license to work in blue-collar fields.

That is up from one in 20 in the 1950s, according to the Institute of Justice, a libertarian public interest law firm in Virginia.

Of the 102 occupations studied, Indiana licenses just 28 of them – among the fewest of any state. Compared with other states, its licensing laws are moderately onerous – the 26th most burdensome. * * *

“Licensing may have little to do with protecting public health and safety but it does protect those that already have licenses from competition,” the study said. “Raising barriers keeps new competitors out and prices high.”

It also suggested that state lawmakers need to reduce these burdens to get more people back to work more quickly.

Rep. David Wolkins, R-Winona Lake, tried just that earlier this year when he filed a bill to deregulate several professions, including barbers and cosmetologists.

Workers in those fields, though, protested loudly, flooding the corridors of the Indiana Statehouse and chanting, “We’ve got scissors, yes we do; we’ve got scissors, how ’bout you?”

He withdrew the bill after the barrage of opposition but still thinks lawmakers should examine occupational licensing more closely given some inconsistencies. For instance, he said the state licenses plumbers but not electricians. * * *

Nationally the worst states in terms of licensing burdens for moderate-income occupations were Louisiana, Hawaii, California, Oregon, Nevada, Arkansas, Hawaii and Florida.

And the report found some major inconsistencies – pointing out that 66 occupations have heavier licensing burdens than emergency medical technicians, including some landscape workers, manicurists and contractors.

Because Indiana licenses so few occupations, it is one of the least broadly and onerously licensed states, the report found. However, Indiana placed above-average barriers to entry on some occupations. For instance, Indiana is one of only eight states to require that truck drivers possess a driver’s license for one year prior to working.

Here is the report from the Institute for Justice.

ILB: For background, see this ILB entry from Jan. 25, 2012, and this one from the following day, both headed "Hairdressers may have killed bill that would eliminate licensing." The entries point out that the Regulated Occupations Evaluation Committee is a statutory committee (IC 25-1-16), created in 2010 by PL 84 (SEA 356, authored by Sen. Delph). Sec. 10 provides:

The committee shall establish a schedule to review and evaluate each regulated occupation. Each regulated occupation must be reviewed and evaluated at least every seven (7) years.

This is NOT a legislative study committee, but a statutory committee with NO legislative members.

The Committee has met seven times this year. Here is the agenda from the May 23rd meeting.

Posted by Marcia Oddi on Monday, May 28, 2012
Posted to Indiana Government

Ind. Law - Private financial data improperly disposed or abandoned ...

Michelle L. Quinn of the Gary Post-Tribune has a long story yesterday that begins:

GARY — A Merrillville man is resting easy now that more than 1,000 files he found eight months ago in an abandoned mortgage company office were finally taken from him by authorities.

The Indiana Attorney General’s Identity Theft Unit secured the files from the Rev. Jeffrey Thames, who’s had the files in his home since he found them. Thames, founder of Gary’s Hope Restored Now! Ministry, cataloged maybe 100 names from the files and wondered how he was ever going to find all the people to whom the files belong. But after dealing with his own identity getting stolen, he vowed to make sure they’re protected from the nightmare he went through.

From a sidebar to the story:
The Indiana General Assembly in 2010 passed Senate Enrolled Act 356, which requires the Attorney General’s office to investigate any records voluntarily surrendered, relinquished or disclaimed by a regulated professional who doesn’t intend to reclaim them. The law was passed primarily for health records, but financial records or any records containing sensitive, identifying information apply as well.

When notified of abandoned records, the AG’s office determines whether to open an investigation and may ask local law enforcement to secure the records until someone from the Identity Theft Unit can complete it. Once the AG has the records, the office will try to contact the people whose records are included.

The records will be kept in the AG’s office for up to three years after they’re secured, according to the statute. All unclaimed records will be destroyed.

Here is a related ILB entry from July 11, 2009, concerning pharmacy records.

Posted by Marcia Oddi on Monday, May 28, 2012
Posted to Indiana Law

Law - "Online medical shopping lets users compare fees to find lower costs"

Interesting, long story written by Ryan Flinn of Bloomberg News about several startups aimed at helping people save money on health care costs:

Castlight works by showing how much doctors, labs and hospitals charge for their services, as well as providing quality ratings. On May 1, the company announced it raised $100 million from investors. Other sites such as HealthcareBlueBook.com, ClearCost Health and Change Healthcare Corp. help employers identify less costly doctors and providers for their workers.

With their out-of pocket expenses on the rise, more and more employees are open to ways to save. Last year, 13 percent of U.S. employees were covered by so-called high-deductible plans that require them to pay for most health costs, an increase from 3 percent five years ago, according to Mercer, a New York-based industry consultant.

Castlight targets companies with self-insured health plans and charges them a monthly fee based on the number of employees and dependents covered. It compiles paid claims data from employers and insurers, then publishes that information on a website for companies and their employees. The closely held company, which bills itself as a Travelocity for health care, serves more than 250,000 employees and their dependents at dozens of companies.

Posted by Marcia Oddi on Monday, May 28, 2012
Posted to General Law Related

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

That is the headline from an April 17, 2012 story in the NWI Times. A quote:

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.

This morning Brian Mann had a nearly 5-minute story on NPR's Morning Edition that you can listen to here. The intro:
Farm worker advocates and top Obama administration officials have been pushing hard for new regulations that would improve safety for teenagers working on farms. But facing fierce opposition from the agriculture industry and its allies in Congress, the Department of Labor abruptly withdrew a set of rules that advocates said could save dozens of lives every year.
Apparently this withdrawal happened several weeks ago. Here are some quotes from a story from the Drovers Cattle Network, dated May 1, 2012:
While the U.S. Department of Labor's (DOL) decision to withdraw proposed farm youth labor rules means farm families won't have to take on new requirements for minors to work on their farms, previous legislation still requires young farm workers to have some training, said Ohio State University Extension's state safety leader.

The proposed rules would have banned children younger than 16 from using most power-driven farm equipment without first taking a specific training course. But even with the legislation shelved, Dee Jepsen said all of the discussion has raised awareness of current regulations and likely will mean organizations such as OSU Extension will see more young people signing up for existing training.

"The people have spoken and they don't want the new regulations, but that doesn't mean we don't have any youth safety regulations," she said. "Even though the Labor Department rescinded the stronger proposal, there is still legislation for 14- and 15-year-old students wanting to work outside their parents' farms.

"We want to remind people of those rules and let them know that training is available. It's just as important for farm managers and employers to be sure the students they hire under the age of 16 are trained."

Here is the US DOL news release announcing the withdrawal, dated April 26, 2012.

Posted by Marcia Oddi on Monday, May 28, 2012
Posted to General Law Related

Saturday, May 26, 2012

Ind. Courts - More on "Two school employees accused of having reason to believe the relationship was happening and not reporting it to law enforcement or child protective services between August 2007 and October 2008"

Updating this ILB entry from yesterday, Matt Fritz of the LaPorte Herald-Argus reports:

On Thursday, an attorney representing the girl, who was 15-years-old when Ashcraft, a former volleyball coach for La Porte High School, started engaging her in sexual relations, filed a lawsuit alleging the La Porte Community School Corp failed to provide a safe environment for the victim and failed to adequately supervise Ashcraft.

"We would have liked to have avoided filing a lawsuit," said Attorney Tim Stoesz during an interview before the filing. "There were communications between the parties back to last fall, but they were terminated by the school system when (Varsity Volleyball Coach Marybeth) Lebo and (Athletic Director Ed) Gilliland and the school were indicted and they were never reopened."

The suit alleges that Ashcraft had sex with the victim, who is now 19-years-old, approximately 25 times between Sept. 2007 and the summer of 2009, with no less than two acts of statutory rape before the victim's 15th birthday.

Ashcraft was convicted in 2011 of two counts of sexual misconduct with a minor under the age of 16, Class B felonies; one count of sexual misconduct with a minor under the age of 16, a Class C felony; and one count of child seduction with a minor over the age of 16, a Class D felony. * * *

Ashcraft, Lebo and Gilliland are also named as defendants in the suit.

The plaintiffs also want to open the report compiled by Private Investigator Larry Evans, which was conducted on behalf of the school corporation.

"When we get that report," Stoesz said, "we plan on releasing it to the public while protecting the minors' identities, but the public has a right to know what's in that report. " * * *

The suit also says Lebo and Gilliland failed to provide proper supervision of Ashcraft and ignored indications from various sources on his activities with the victim.

Posted by Marcia Oddi on Saturday, May 26, 2012
Posted to Indiana Courts

Ind. Gov't. - "State ends dispute over child welfare testimony"

Rebecca S. Green of the Fort Wayne Journal Gazette reports today that:

After months of haggling with Allen County prosecutors about whether they should testify about confidential information in child abuse cases, state officials said Friday they are backing off their original positions and seeking to resolve the issues away from the courtroom.

Since March, attorneys with the Department of Child Services have filed motions in two separate criminal cases, expressing concern that if DCS officials testify to confidential information in open court, they could be opening themselves up to civil or criminal penalties. * * *

Since DCS records are confidential and trials are conducted in the public eye, DCS employees would be violating state law by testifying to confidential records and could get in trouble, DCS officials said.

The information they specifically sought to protect was the confidential content of DCS’ child abuse and neglect records and the identity of all reporting sources which “led to any child abuse/neglect,” according to motions filed by the DCS attorneys.

Allen County Prosecutor Karen Richards, in a hearing this month, denounced DCS’ recent actions, and in a motion pending before Allen Superior Judge Fran Gull called the behavior of the state agency absurd.

Gull scheduled a hearing for Wednesday in one of the cases, a child molesting case involving a 13-year-old girl, allegedly seduced and given alcohol by 22-year-old Allen Reed. In January, prosecutors charged Reed with two charges of child molesting and a misdemeanor charge of contributing to the delinquency of a minor.

In a motion filed in that case, DCS attorney Diana Mejia argued that access to confidential information by the court is limited to a private review by a judge unless public disclosure of the information is deemed necessary to resolve some issue pending in the court.

“Since criminal proceedings are presumptively open to attendance by the general public…the (case manager’s) improper disclosure of information classified as confidential by Indiana statutes would subject the state employee to penalties under Indiana code,” Mejia wrote. * * *

In a response filed with the court Thursday, Richards called DCS’ contentions absurd.

DCS’ suggestion that testifying, at the request of the prosecution, could open case workers up to criminal penalty would require the prosecutors to charge the DCS employee for doing what was asked of them, Richards contended.

“Following DCS logic, the state would then have to charge itself with a criminal offense for aiding in the commission of this crime,” Richards wrote. “The absurdity of this DCS assertion is evident. … For DCS to assert that their workers cannot cooperate in a criminal prosecution is ludicrous.”

Posted by Marcia Oddi on Saturday, May 26, 2012
Posted to Indiana Courts | Indiana Government

Ind. Decisions - "Nappanee molestation suspect released by Ind. Supreme Court"

Justin Leighty of the Elkhart Truth reports today on a 3-page Order of the Supreme Court, filed May 24th, and posted yesterday on the Court's website. The Court's ruling begins:

Relator, by counsel, filed a petition for writ of mandamus and prohibition seeking relief under the Rules of Procedure for Original Actions. Relator alleges that on August 7, 2009, he was arrested on a criminal charge and that he has remained detained on that charge since then without a trial. He argues his right to a speedy trial has been violated. He requests a writ that would require Respondents to dismiss the criminal charge against Relator with prejudice or, in the alternative, order Relator released from jail on his own recognizance pending trial. Responses opposing issuance of the writ have been filed by the Hon. George W. Biddlecome, the Prosecuting Attorney, and the Attorney General of Indiana.

Each member of the Court has had an opportunity to review and consider the materials filed in this original action. Concluding that Relator is entitled to part of the relief he requests, three Justices vote to grant Relator’s petition in part and deny it in part.

From the Truth's story, which is headed "Nappanee molestation suspect released by Ind. Supreme Court":
NAPPANEE — A local man was released from jail Friday without having to post bond while awaiting trial on a child-molesting charge after the divided Indiana Supreme Court ordered the release Thursday.

The state’s highest court ruled that Scott F. Logan, 40, of 1200 Main St. Apt. 407, Nappanee, had been held longer than criminal trial rules allow and instructed Judge George Biddlecome to allow Logan to go free while he waits for his trial to start.

The trial is scheduled to begin June 4 in Elkhart Superior Court 3.

Logan was arrested Aug. 7, 2009, a week after prosecutors charged him with molesting a child in April of that year. He’s remained jailed since then with bond set at $50,000.

A couple of months later, Logan’s attorney asked for a delay, the first of many in court records.

Under Indiana’s Criminal Rule 4, “No defendant shall be detained in jail on a charge, without a trial, for a period in aggregate embracing more than six (6) months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge,” according to the Supreme Court order.

The two exceptions are for delays caused by the defendant or those caused by court congestion.

If person is held in custody for longer, they’re either entitled to release without bond or to have charges dismissed.

There are delays caused by court congestion and caused by Logan’s attorneys noted in the court records, but the Supreme Court ruled that other delays added up to more than six months.

The ruling was made by Chief Justice Brent Dickson and justices Frank Sullivan and Robert Rucker. The two newest justices, Steven David and Mark Massa, both voted to deny Logan’s request.

Posted by Marcia Oddi on Saturday, May 26, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Knox City Court In Jeopardy Due To Funding Problems"

"Ben" reported May 25th for WKVI:

When members of the Knox City Administration appeared before the Starke County Council Monday night seeking funding sources to narrow the loss gap at Knox City Court, the subject of discontinuing the court was mentioned.

The next night the Knox City Council met and Attorney David Matsey reported on the meeting with the county officials.

“I think some reality is setting in with the county council members about what is going to happen if city court isn’t there anymore. We need to close that gap of $80,000, and the city isn’t going to subsidize the court forever. The bottom line is it’s going to cost $300,000 to $400,000 to operate another court,” Matsey said.

Matsey said he is hopeful the city and county can open some dialogue about closing the gap.

“City court is an inexpensive way to provide the services. I think the taxpayers are getting a real bargain with it,” said Matsey.

Mayor Rick Chambers said that he had gone back into the city council minutes from the 1980s, and as far back as 1988, the council was talking about closing the city court.

One of the funding problems is that the State of Indiana has been taking a higher percentage of the money the court generates.

All of the talk may be moot, however, as the state has been talking for some time about doing away with city courts.

Posted by Marcia Oddi on Saturday, May 26, 2012
Posted to Indiana Courts

Ind. Courts - "Missing Muncie funds spark investigation: Indiana State Police are looking into the possible theft of money from the city clerk's office"

The story by Keith Roysdon and Douglas Walker in today's Muncie Star-Press begins:

MUNCIE -- State police have been asked to investigate the theft of funds -- apparently fines for traffic-related offenses and other revenue generated by Muncie City Court -- from the Muncie city's clerk's office.

"It has been reported that some cash payments received at the Muncie City Court were not forwarded to the Indiana Bureau of Motor Vehicles," Scott Jarvis, an Indiana State Police investigator assigned to the Pendleton district, said Friday in a prepared statement. "An audit is being conducted by the Indiana State Board of Accounts and a criminal investigation is ongoing."

More from later in the story:
City Court Judge Dianna Bennington said she had called the missing money to the attention of authorities.

"It was brought to my attention that there was at least the appearance that money had been misappropriated in two instances," Bennington told The Star Press on Friday. Bennington, who has been on the bench since January, called the Indiana Judicial Commission for advice and was told to contact the ISP and State Board of Accounts.

Bennington said she was later aware that the board of accounts began an audit of the city clerk's office's books.

Posted by Marcia Oddi on Saturday, May 26, 2012
Posted to Indiana Courts

Friday, May 25, 2012

Ind. Courts - "Two school employees accused of having reason to believe the relationship was happening and not reporting it to law enforcement or child protective services between August 2007 and October 2008"

The story today in the NWI Times is headed "Family sues LaPorte schools for up to $18.7 million in sex case." Marisa Kwiatkowski reports:

LAPORTE | The family of a girl who was sexually involved with her former junior varsity volleyball coach filed a lawsuit Thursday against the state, school district and employees, claiming officials ignored indications the relationship was happening, court records state.

The family also claims LaPorte Community School Corp. failed to properly supervise its employees and failed to provide a safe environment for their then-15-year-old daughter. The family is seeking up to $18.7 million in damages from the state, LaPorte Community School Corp., Athletic Director Edward Gilliland and head volleyball coach MaryBeth Lebo and the perpetrator, former junior varsity volleyball coach Robert Ashcraft.

Ashcraft was found guilty last year of four felonies relating to his sexual relationship with the girl: three counts of sexual misconduct with a minor and one count of child seduction, court records show. He currently is serving a 21-year prison sentence.

Gilliland and Lebo each have been charged with two misdemeanor counts of failure of duty to report the sexual crimes. They are accused of having reason to believe the relationship was happening and not reporting it to law enforcement or child protective services between August 2007 and October 2008, court records state.

Posted by Marcia Oddi on Friday, May 25, 2012
Posted to Indiana Courts

Ind. Decisions - 7th Circuit examines right of allocution in case out of Illinois

The WSJ Law Blog highlights the 2-1, 7th Circuit decision today in a case out of Illinois, U.S. v. Billy Covington. The entry begins:

In this ruling, the U.S. Court of Appeals for the Seventh Circuit wrestled with the question of whether a judge’s interruption during a bank robber’s meandering statement at his sentencing hearing amounted to an abridgment of his right to allocution.
(Thanks to Michelle Olsen@AppellateDaily for the heads up.)

Posted by Marcia Oddi on Friday, May 25, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 11 NFP)

For publication opinions today (6):

In Mark Gasser v. Lesa B. Downing, Auto-Owners Insurance Company, and Property Owners Insurance Company, an 8-page opinion, Judge May writes:

Mark Gasser was injured in an automobile accident while a friend was driving him to a golf course. He sued Auto-Owners Insurance Co. for underinsured motorist coverage, claiming the car in which he was a passenger was a temporary substitute for his own vehicle. The trial court granted Auto-Owners’ motion for summary judgment and denied Gasser’s. We affirm. * * *

Gasser’s business, Huntingburg Machine Works (“HMW”), owned Gasser’s truck and other vehicles, and Auto-Owners insured them. The HMW policy applies “to an automobile you do not own which is temporarily used as a substitute for your automobile. Your automobile must be out of use because of breakdown, repair, servicing, loss or destruction.” “Substitute” is not defined. * * *

Kamman’s car was not a “temporary substitute” for purposes of the Auto Owners policy because it was being used as a favor or friendly accommodation, not to fulfill a legal or contractual obligation Gasser had. * * *

Gasser’s ride to the golf course similarly is best described as a “favor” by Kamman, and not a “fulfillment of a prior contractual or legal obligation.” Auto-Owners therefore was entitled to summary judgment, and we affirm.

In Cody Dallas v. Brandon Cessna, a 12-page opinion by Judge Riley, the issues were:
(1) Whether the trial court erred when it imposed joint and several liability for an intentional tort that originated in a crime; and
(2) Whether Dallas’ intentional touching of Cessna was a proximate cause of Cessna’s injuries.
The opinion concludes:
[Joint and Several Liability] The Act clearly stipulates that Cessna may recover one hundred percent of his damages for the intentional tort from Dallas, as Dallas pled guilty after a prosecution based on the same evidence used in the civil proceedings. See I.C. § 34-51-2-10. Because both Dallas and Lewellen were involved in the battery on Cessna and both were held liable after a criminal prosecution based on the same evidence, the imposition of joint and several liability for Cessna’s damages complies with the statutory requirement of I.C. § 34-51-2-10. Therefore, we affirm the trial court. * * *

[Proximate Cause] The incredible dubiosity rule represents an exception to the general prohibition against reweighing a witness’ testimony in criminal proceedings and its application is extremely limited and sporadic. In this light—and even discounting the disparity in burden of proof between criminal and civil proceedings—we decline Dallas’ invitation to extend the applicability of the rule to civil proceedings. Therefore, because Dallas’ argument amounts to a reweighing of witness credibility, we refrain from addressing his argument.

[Conclusion] Based on the foregoing, we conclude that the trial court properly imposed joint and several liability. We will not address Dallas’ argument on proximate cause as it amounts to a reweighing of a witness’ credibility.

In In Re the Estate of Ruby Shuler Blankenbaker Botkins, Deceased; Mark Allen Shuler and David Lee Shuler, co-personal representatives v. Estate of George Botkins and Larry Botkins, personal rep. , a 7-page opinion, Judge Mathias writes:
Mark and David Shuler (collectively, “the Shulers”), the co-personal representatives of the estate of Ruby Shuler Blankenbaker Botkins (“Ruby”), appeal from the trial court’s denial of their motion to set aside a Family Settlement Agreement (“the Settlement Agreement”) relating to the administration of Ruby’s estate. Concluding that the order from which the Shulers appeal is neither a final judgment nor an appealable interlocutory order, we dismiss this appeal sua sponte. * * *

For all of these reasons, we conclude that the order from which the Shulers appeal is neither a final judgment nor an appealable interlocutory order. This court is therefore without subject matter jurisdiction to entertain the Shulers’ appeal. Dismissed.

Anthony Dorelle-Moore v. State of Indiana

In E. Paul Haste v. State of Indiana , a 4-page opinion, Judge Mathias writes:

[On August 17, 2011] the trial court issued an order sentencing Haste to a ten-year executed sentence and indicating that the court was taking the issue of restitution under advisement. On August 23, 2011, before the trial court entered any order addressing the issue of restitution, Haste filed his notice of appeal. The trial court clerk filed the Notice of Completion of Clerk’s Record on the same date. This appeal ensued. * * *

Because the trial court specifically stated in its August 17, 2011 sentencing order that it was taking the restitution issue under advisement, that order did not completely dispose of all sentencing issues. Accordingly, the August 17, 2011 sentencing order from which Haste appeals is not an appealable final judgment, and we must dismiss this appeal. * * *

Assuming that Haste did not file another notice of appeal within thirty days of the entry of the October 24, 2011 restitution order, it would appear that he has missed the deadline for filing a direct appeal of his conviction and sentence. However, it also seems apparent that Haste’s conduct might qualify him to file a petition for permission to file a belated notice of appeal under Post-Conviction Rule 2. Dismissed.

Tyjuan J. Dixon v. State of Indiana

NFP civil opinions today (3):

Clovis Smith v. Alexandra Ryan (NFP)

Victoria Thomas v. National Education Association-South Bend and South Bend School Corporation (NFP)

Paul Esparza v. Denis Lynch (NFP)

NFP criminal opinions today (8):

William Pargo v. State of Indiana (NFP)

Anthony McCoy v. State of Indiana (NFP)

Keith M. Butler v. State of Indiana (NFP)

Lucas E. Holland v. State of Indiana (NFP)

Lorinda Harper v. State of Indiana (NFP)

Darrell Lawrence v. State of Indiana (NFP)

Shane J. Johnson v. State of Indiana (NFP)

Jeremy Kyle Everhart v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 25, 2012
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS weakens double jeopardy protection in certain cases

Here is the heading to David G. Savage's long story in the LA Times: "Supreme Court limits protection against double jeopardy: Justices rule that a jury's unanimous but tentative vote to acquit a defendant on some charges does not count as a verdict. It means an Arkansas man can be retried."

The case is Blueford v. Arkansas; see the Sentencing Law Blog entry here.

Posted by Marcia Oddi on Friday, May 25, 2012
Posted to Courts in general

Courts - Long Reuters article examines incleasing use of Tax Courts by the various states

Nanette Byrnes of Reuters reports in a lengthy survey article, here as published in the Chicago Tribune. A few quotes:

[Until recently] Georgia taxpayers challenging state tax authorities had to pay disputed taxes before appealing them. Their appeals would be heard by the same Department of Revenue that levied the tax in the first place. And further appeals could be overruled by the revenue commissioner or heard by a judge without tax expertise.

Under the new system, tax appeals will be heard by a tax expert who is independent of Georgia's Department of Revenue, and taxpayers will not have to pay disputed taxes before appeal.

Six U.S. states have established or considered establishing independent tax tribunals in the last two years, a trend supported by the business community, but one which also is stirring debate about the need for these new tribunals.

In addition to Georgia, Illinois approved a law last year to create a tax court by 2013. * * *

Eighteen other states have well-established tax courts, and another nine states and the District of Columbia offer independent tax courts or forums that do not have to be staffed by tax experts.

Twenty-one states, including Alabama, do not have independent tax courts at all, among them are three of the largest states - California, Texas and Florida. * * *

Of the 18 established state tax courts or tribunals, four have been created since 2003 - in West Virginia, Alaska, Kansas and Mississippi. Counterparts in Oregon, Wyoming, New Hampshire, New York and Indiana date to the 1990s and 1980s. Another nine have been around for more than 30 years.

Their structures vary from state to state, but generally these tribunals offer a place where taxpayers can challenge the decisions of tax authorities, from individual and corporate income taxes to sales and property taxes.

States without an independent court generally rely on administrative hearing systems within their revenue departments to adjudicate tax disputes, like the one Georgia had. Unhappy taxpayers in these systems often may appeal to state courts, but these lack specialized tax judges.

Proponents of the new tax courts include lawyers' groups and corporations. They say the courts handle appeals more quickly and in ways that are fairer to taxpayers than when the appeals are under the control of state revenue departments.

Posted by Marcia Oddi on Friday, May 25, 2012
Posted to Indiana Courts

Environment - "Big error by IDEM"

That is the heading to this editorial today in the Fort Wayne Journal Gazette. It concludes:

IDEM’s inexplicable approval of the defective permit offers more evidence that the state agency responsible for enforcing state and federal pollution rules is simply too lax. In 2007, The Journal Gazette documented the agency’s dismal performance in enforcing voluntary plans businesses develop to clean polluted sites. Two years ago, one of the agency’s top lawyers told enforcement officials that rather than cite all violations at a business, to “pick the most apt legal requirement(s) and cite only those.”

BP should be commended for agreeing to the additional pollution controls. Perhaps the company is ultrasensitive to environmental issues following the cat- astrophic 2010 oil spill in the Gulf of Mexico. Still, Hoosiers should be glad the company and environmentalists agreed on a way that will preserve the $3.8 billion expansion, believed to be the biggest private-sector investment ever in the state.

IDEM, on the other hand, has never explained why it wrongly approved the doomed BP permit. Hoosiers should demand answers.

For background, start with this ILB entry from yesterday, May 24th.

Posted by Marcia Oddi on Friday, May 25, 2012
Posted to Environment

Ind. Gov't. - "Doctor in DWI chase loses Rx rights, fined; Undergoes rehab; can practice while finishing drug court"

That is the headline to this story by Niki Kelly in today's Fort Wayne Journal Gazette. It begins:

INDIANAPOLIS – The Indiana Medical Licensing Board on Thursday lifted the emergency suspension of a Fort Wayne oncologist who in January was charged with leading police on a high-speed chase while having illegal drugs in his system.

Dr. Charles J. Whalen Jr. entered into a settlement agreement with the Indiana Attorney General’s Office, acknowledging that he had become unfit to practice due to physical or mental disability.

He is allowed to practice medicine again, but his license was placed on indefinite probation. And he will not be able to prescribe controlled substances for several years.

Whalen no longer works at Fort Wayne Medical Oncology and Hematology.

Posted by Marcia Oddi on Friday, May 25, 2012
Posted to Indiana Government

Courts - More on: Nationally-known, Chicago-based U.S. Attorney Patrick Fitzgerald to retire

Updating yesterday's ILB entry, Ameet Sachdev's Chicago Law has a column today headed "Chicago Law: What next for outgoing U.S. Attorney Patrick Fitzgerald? Given what others have done, question isn't idle speculation." A few quotes from the long story:

Talk about Fitzgerald's future isn't just idle speculation. U.S. attorneys have become mayors, governors and other elected officials. They become judges. They take senior positions in the federal government. And they have gone into the business world and run powerful law firms.

Fitzgerald has all of those options ahead of him but one. He ruled out running for political office.

"I'm not wired to campaign for anything or run for elected office, period," he said.

Fitzgerald dropped some hints during his news conference about his future interests. There was speculation a few years ago that he might be interested in becoming FBI director. He said it would be presumptuous to even discuss such a job, but there's no question he loves being a public servant.

"I am a government person," he said. "That's the way I look at things."

When asked if he could see himself on the other side of a table from prosecutors, he quipped, "Can you imagine me as a defense attorney?"

The remark drew laughter, because Fitzgerald has spent most of his career as a prosecutor, putting away corrupt politicians, mobsters, terrorists, gangsters and the occasional corporate scam artist. U.S. Attorney General Eric Holder gave him high praise, calling him a "prosecutor's prosecutor." * * *

While it would be difficult to imagine Fitzgerald representing people accused of crimes, it's not hard to see him working inside a large international law firm, say people close to him. Among other things, former prosecutors are valued for their ability to manage and conduct internal investigations for corporate clients. Fitzgerald is a dogged investigator known to search for the truth, not just enough evidence to bring charges.

Posted by Marcia Oddi on Friday, May 25, 2012
Posted to Courts in general

Thursday, May 24, 2012

Vacancy on COA 2012 - "Black leaders must mobilize to prevent ‘Black’ out of Indiana’s highest courts"

That is the headline to an editorial in the Indianapolis Recorder, posted today by Amos Brown III.

Posted by Marcia Oddi on Thursday, May 24, 2012
Posted to Vacancy on COA 2012

Courts - Nationally-known, Chicago-based U.S. Attorney Patrick Fitzgerald to retire

Here is yesterday's story in the Chicago Sun-Times, reported by Natasha Korecki, and headed "Patrick Fitzgerald quits U.S. attorney post after nearly 11 years."

Today, a story in the Sun-Times by Lynn Sweet and Abdon M. Pallasch, headed "Who’s next for U.S. attorney? May the speculation begin." A few quotes:

When the job was last vacant, former Republican Sen. Peter Fitzgerald bucked pressure from his own party to select a Chicago lawyer and instead sent the name of a New Yorker — Patrick Fitzgerald (no relation) — to former President George W. Bush, insisting on an outsider to lessen the potential of conflicts of interest.

The choice “put the blindfolds back on justice in Chicago,” the former senator told the Chicago Sun-Times.

“I would hope that Sen. Kirk and Sen. Durbin would recommend someone who is not connected to the political class in Chicago or Springfield. And that they also look for someone who could not be pressured or controlled,” Peter Fitzgerald said Wednesday.

While many lawyers in Chicago are smart with “great experience,” Peter Fitzgerald argued that the next federal prosecutor here should be someone who “the politicians in Chicago and Springfield don’t have something on.” * * *

The last two U.S. attorneys in Illinois — in the southern and central districts — were confirmed earlier in 2010, when former Democratic Sen. Roland Burris affirmed Durbin’s recommendations. Before that, Durbin worked with fellow Democrat Barack Obama — then a senator — who replaced Peter Fitzgerald.

Posted by Marcia Oddi on Thursday, May 24, 2012
Posted to Courts in general

Ind. Gov't. - "Mentally ill kids caught in Catch-22: Prosecutors at odds with DCS over care"

Following on this long ILB entry from May 20th, quoting from two great stories from Marisa Kwiatkowski of the NWI Times (see series here), Tim Evans of the Indianapolis Star today has a long story that puts a spotlight on "a provision [of Indiana law] known as CHINS 6 that covers nonvictim children who are 'substantially endangering (their) own or another's health.'" Some quotes:

There is one very important difference between a CHINS 6 and other types of CHINS cases. A CHINS 6 designation does not require a finding of abuse or neglect on the part of a parent. * * *

While mental health professionals and prosecutors see CHINS 6 as an important tool in helping troubled children, DCS officials pushed legislation in the General Assembly this year to eliminate the CHINS 6 category. Backlash from mental health professionals, children's advocates and judges temporarily scuttled the proposal, but it will be reviewed this summer by a legislative study commission. The panel also will look at whether prosecutors should be allowed to file CHINS 6 petitions.

In the meantime, according to advocates, DCS has become increasingly reluctant to use the designation to help children.

See this ILB entry from earlier today for more on the summer study committes.

Here is the 10-page trial court ruling by Judge Hanson in In the Matter of AA, discussed in both the NWI Times and Star stories.

Posted by Marcia Oddi on Thursday, May 24, 2012
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In Finance Center Federal Credit Union v. Ronnie D. Brand, Debora J. Brand and GMAC Mortgage, LLC, a 10-page opinion, Judge Vaidik writes:

Ronnie D. Brand and Debora J. Brand (collectively, “the Brands”) refinanced their first and second mortgages with GMAC Mortgage, LLC. Despite GMAC fully paying off the Brands’ first and second mortgages as part of the refinancing process, the Brands’ second mortgage – a home equity line of credit with Finance Center Federal Credit Union – was never released. Finance Center later advanced additional funds to the Brands. When the Brands thereafter defaulted on the GMAC mortgage, a dispute erupted over the priority of the GMAC and Finance Center mortgages. The trial court entered partial summary judgment in favor of GMAC, finding that the GMAC mortgage had first priority pursuant to the doctrine of equitable subrogation. Finance Center now appeals, arguing that the GMAC mortgage does not have first priority because GMAC was “culpably negligent.” Concluding that equity should not allow the Finance Center mortgage to gain an unexpected elevated priority because of any negligence of GMAC that did Finance Center no harm, we affirm.
In Samantha Adams v. State of Indiana, an 11-page opinion, Judge Riley writes:
Adams raises one issue on appeal, which we restate as follows: Whether the trial court denied her due process because the Indiana Code does not define the term “mature stalks” in its definition of marijuana, and the provision is therefore vague and void. * * *

Here, the definition of mature stalks is irrelevant because the mature stalks of Adams’ marijuana constitute adulterated marijuana and will thus support her sentence enhancement. Accordingly, we conclude that the definition of mature stalks is not unconstitutionally vague in light of the facts and circumstances here, and the trial court did not abuse its discretion in denying Adams’ motion to dismiss.

NFP civil opinions today (3):

Term. of Parent-Child Rel. of K.N., C.M., and K.M.; M.M. (Mother) and C.M. (Father) v. The Indiana Department of Child Services (NFP)

In Re the Paternity of B.C., M.L. v. D.N., Jr. (NFP)

John W. Mitchell v. American Acceptance Co., LLC, as Assignee of Chase Bank USA, N.A. (NFP)

NFP criminal opinions today (6):

Charles Hunter v. State of Indiana (NFP)

Christopher Master v. State of Indiana (NFP)

Darryl Anderson v. State of Indiana (NFP)

David West v. State of Indiana (NFP)

Bret Beiler v. State of Indiana (NFP)

Joshua M. Santiago v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 24, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "To whatever extent the filing of 'notes on oral argument' without leave of court was once part of Indiana’s appellate practice, it no longer is ..."

Interesting Published Order posted yesterday by the Supreme Court; it was filed May 18, and relates to the case of Hugh Reed v. Edward Reid, et al. (40S01-1107-PL-436), argued March 28, 2012 before the Supreme Court. A decision has not yet been issued. In the 5-0 Order, Chief Justice Dickson wrote:

After this case had been fully briefed on transfer and we heard oral argument on March 28, 2012, Appellees filed a document titled “Appellees’ Notes On Oral Argument,” and Appellant filed “Appellant’s Objection To Filing . . . .”

The twelve-page “Notes on Oral Argument” consists of comment on the oral argument, citations, and legal argument on the issues in the case. In other words, but for the absence of covers and a binding, it is essentially an advocate’s brief. Appellees did not request permission to file this document, and the Court did not request it. As Appellees note, two decisions mention the use of “notes on oral argument,” see Peak v. State, 240 Ind. 334, 356, 163 N.E.2d 584, 595 (1960) (dissenting opinion of Bobbitt, J.), and Workman v. Workman, 113 Ind. App. 245, 260, 46 N.E.2d 718, 724 (1943), but no opinion has mentioned them in the last fifty years. We are aware that they are discussed in Kenneth Stroud, 4A Indiana Practice (2nd ed. 1990) § 11.4, but later versions of this work deleted reference to them. See George Patton, 24 Indiana Practice ch. 11 (3rd ed. 2001) & (2011-12 Supp.).

To whatever extent the filing of “notes on oral argument” without leave of court was once part of Indiana’s appellate practice, it no longer is, and this order is being published to so inform attorneys. Appellate Rule 48 authorizes the filing of a Notice of Additional Authorities when pertinent and significant authorities come to the attention of a party after oral argument, but comment about the citations is limited to a parenthetical or single sentence explaining the authority. Appellees’ “Notes on Oral Argument” document does not conform to this rule. Accordingly, the Appellant’s Objection is SUSTAINED. Appellees’ Notes on Oral Argument is STRICKEN, and the Clerk is directed to return all copies of it to counsel for Appellees.

ILB: A check of the docket reveals the following:
Case Number: 40 S 01 - 1107 - PL - 00436
REED, HUGH DAVID V. REID, EDWARD, REID MACHINERY, INC. ET AL

Litigant Inquiry

REED, HUGH DAVID

SHERE, MARK ELIOT, INDIANAPOLIS, IN 46260-0000

REID, EDWARD

JUSTICE, COURTNEY BEEN, LOGANSPORT, IN 46947-0000
EAGLESFIELD, ROBERT DAVY, LOGANSPORT, IN 46947-0000
MCINERNY, DANIEL PATRICK, INDIANAPOLIS, IN 46204-0000
BABB, BRYAN HAROLD, INDIANAPOLIS, IN 46204-0000

Posted by Marcia Oddi on Thursday, May 24, 2012
Posted to Ind. Sup.Ct. Decisions

Environment - More on: Settlement in air suit against BP Whiting

Updating yesterday's ILB entry, here is the Consent Decree in the U.S., et al., v. BP Products North America Inc. (Whiting Refinery, IN) air settlement.

Posted by Marcia Oddi on Thursday, May 24, 2012
Posted to Environment

Ind. Gov't. - Here are the summer study commttees created yesterday by the Legislative Council

Here is the 7-page list. The list includes:

There are several news reports today on the committees created re stage safety and child services:

Posted by Marcia Oddi on Thursday, May 24, 2012
Posted to Indiana Government

Wednesday, May 23, 2012

Environment - Settlement in air suit against BP Whiting

Here is the headline to the detailed news release from US EPA: "BP Agrees to Add More Than $400 Million in Pollution Controls at Indiana Refinery and Pay $8 Million Clean Air Act Penalty." Thanks to Gitte Laasby, who covered this story extensively while at the Gary Post Tribune, for the heads up. See also this US EPA document on the settlement.

If you are interested in earlier ILB entries on BP Whiting air permit challenges, beginning in 2008, you will need to scroll through this long list, which also includes water issues and other matters.

[More] Michael Hawthorne of the Chicago Tribune has posted this story. Some quotes:

Changes outlined in the consent decree, filed in U.S. District Court in Hammond, require the oil company to dramatically reduce flaring by capturing most of the pressurized gases, and to operate the flares more efficiently when they are needed.

A new cap on emissions, which federal regulators described as the most stringent to date for a U.S. refinery, is expected to reduce the Whiting plant’s flaring by nearly 90 percent. Emissions of hazardous chemicals such as benzene, toluene and hydrogen sulfide will drop by about 4,000 tons annually.

Lawyers for the federal government and environmental groups targeted BP after the Indiana Department of Environmental Management awarded the company a new permit in 2008 that assumed the Whiting refinery’s flares would emit virtually no toxic fumes when the expansion project was completed.

Critics said the permit was typical of Indiana’s lax approach to BP. The state earlier had allowed BP to release more water pollution into Lake Michigan, but the company backed off after Tribune stories prompted a storm of protest from politicians and the public.

“This ground-breaking settlement will resolve a number of problems at the Whiting refinery that have negatively impacted the health of people in the surrounding area,” said Susan Hedman, the U.S. EPA’s top official in the Midwest. “It also sets a new standard for refineries throughout the country.”

Posted by Marcia Oddi on Wednesday, May 23, 2012
Posted to Environment

Ind. Courts - While "Pulaski County Bell Tower Worsens With Each Toll Of The Bell," Randolph County Courthouse Dedication This Week

"Ben" at K99.3 FM reports:

Pulaski County Maintenance Director Morry Demarco told the commissioners this week that with each toll of the Pulaski County Courthouse bell, mortar crumbles from between the bricks, and he is anxious to get the bell tower fixed. (Photo)
Meanwhile, the restored Randolph County Courthouse, about which the ILB has had a number of entries over the years, is being dedicated this week. Jeff Ward has a long story in the Muncie Star-Press. A few quotes:
The Randolph County Courthouse -- a building that was a step away from the wrecking ball and prompted seven members of a bridge club to pose nude in order to save it -- is about to have its public unveiling after a 33-month renovation costing nearly $8.2 million.

The project cost about $200,000 less than budgeted, and will be paid off in about 10 years.

That price tag includes a dramatic new clock tower and mansard roof -- visible for miles in any direction -- to replace what was removed around 1955 because it had fallen into disrepair.

It also includes an annex and elevator that has added 12,300 square feet to the north side of the existing courthouse, which was built in 1875. * * *

To be sure, the exterior makeover of the courthouse has been dramatic; with the addition of the clock tower, the structure stands 134 feet, 2 1/2 inches from crown to ground.

The interior is just as grand, with incredible attention paid to detail and to the architectural style known as Second Empire, rooted in France, after which the 1875 building was patterned. That style, also known as Napoleon III, often includes a central clock tower, mansard roof, "banding" around the building and other design elements, all present in this courthouse.

Posted by Marcia Oddi on Wednesday, May 23, 2012
Posted to Indiana Courts

Law - "Got Student Loans? Share Your Documents With Us (ProPublica)"

See the post. A quote:

We need your help. The Chronicle of Higher Education and ProPublica have teamed up to untangle student debt, and we're seeking information colleges or universities gave you about your loans and other financial aid. We're also creating a Facebook community for people who are struggling with student debt, want to help inform our reporting, or just want to learn more about student loans and keep abreast of new developments.

Specifically, we're looking for the "financial aid package," "award letter" or "offer letter" that you received from a college — the one you’re going to or ones that you decided not to go to. ** *

We hope you'll help us out. We've often heard students tell us that they're confused about how much debt they've taken on, surprised by the size of their monthly payments, or unsure about even the kind of loans they have. By sending in your financial aid package, you can help us see what students and families are being told — and not told — about the debt they're taking on.

Posted by Marcia Oddi on Wednesday, May 23, 2012
Posted to General Law Related

Courts - "First Circuit Dissenters Discuss Supreme Court’s Case-Selection Criteria"

See this post from Circuit Splits.

Posted by Marcia Oddi on Wednesday, May 23, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP)

For publication opinions today (2):

In Lisa Reynolds v. Daniel Capps , a 6-page opinion, the issue is "whether Reynolds was denied due process when the trial court ordered her to vacate her apartment." Judge Barnes writes:

Scholars and judges consistently characterize provision of a neutral decision-maker as one of the three or four core requirements of a system of fair adjudicatory decisionmaking.” * * *

[I]t is clear that the September 13, 2011 hearing did not satisfy the very minimum due process requirements—namely that a judge, or someone so authorized, preside over the hearing. In fact, this hearing was conducted by the court reporter. This violated Reynolds’s right to a neutral decision-maker. Further, no witnesses were sworn, no evidence was heard, and Reynolds was not given the opportunity to defend against the ejectment. Reynolds was then presented with a pre-signed order requiring her to vacate the premises. This violated her right to present a defense. * * *

Even taking into account the informality of the small claims process, if the hearings on evictions are regularly conducted without a judicial officer present, we pointedly and directly express our concern and expect that situation to be remedied. Reynolds has made a prima facie showing that the September 13, 2011 hearing was conducted in a matter that denied her due process. Thus, the order requiring Reynolds to vacate the premises and the subsequent damages award must be reversed.

Because the manner in which the hearing was conducted denied Reynolds due process, we reverse.

Gabriel J. Sharkey v. State of Indiana - The issue here is: Whether the trial court properly sentenced Sharkey. The 8-page opinion by Judge Riley walks through the reasons why the Court is affirming.

In Willie Huguley v. State of Indiana , a 6-page opinion, Sr. Judge Sharpnack writes:

Willie Huguley is attempting to revive his original appeal and appeal the denial of his petition for postconviction relief. We conclude that Huguley cannot receive belated appellate review of the denial of postconviction relief, but we remand to the trial court to determine whether he has been without fault and diligent in pursuit of his original appeal.
NFP civil opinions today (0):

NFP criminal opinions today (2):

Dionne Harris v. State of Indiana (NFP)

Jason Poole v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 23, 2012
Posted to Ind. App.Ct. Decisions

Ind. courts - More on: Floyd County Prosecutor Keith Henderson and possible serial murder case [Updated]

Updating this lengthy ILB entry from May 1st, Rick Callahan of the AP is now reporting:

INDIANAPOLIS (AP) - A court official says prosecutors are planning to charge a southern Indiana man with murdering a third woman, whose body was found buried in his backyard last month.

The Floyd Superior Court official says Judge Susan Orth found probable cause during a Wednesday hearing to justify charging 54-year-old William Clyde Gibson with murdering 35-year-old Stephanie Kirk. * * *

Gibson is due in court later Wednesday. He is already charged with murdering 75-year-old Christine Whitis last month and murdering Karen Hodella, a woman visiting from Florida, in 2002.

[Updated at 3:00 PM] Here is Harold J. Adams' story in the Louisville Courier Journal. Some quotes:
The Floyd County Prosecutor’s Office announced Wednesday that it will seek the death penalty for William Clyde Gibson III, a New Albany man charged in the murders of three women. * * *

Floyd Superior Court Judge Susan Orth, after listening to evidence presented in court Wednesday morning by Prosecutor Keith Henderson, found probable cause to charge Gibson in Kirk’s murder.

Posted by Marcia Oddi on Wednesday, May 23, 2012
Posted to Indiana Courts

Ind. Courts - Grant County judges order a dress code

Attorneys practicing in Grant County courts have received a notice and order, filed May 22nd. Here is the cover:

Attached is a Courtroom Dress Code adopted today by all county courts. Feel free to copy and post or give to your clients as needed. It will be posted at the courthouse entrance also. Thank you!
Here is the dress code.

Posted by Marcia Oddi on Wednesday, May 23, 2012
Posted to Indiana Courts

Tuesday, May 22, 2012

Ind. Law - More on: Driver in Warsaw ticketed for using iPod as a dash-cam mounted on his front windshield, much like a GPS (or backup camera screen)

Updating yesterday's entry, David Barras of WISHTV8 has this story today:

INDIANAPOLIS (WISH) - Has technology made an Indiana traffic law obsolete? It's a crucial question raised by an incident in northern Indiana. That's because, by law, you can't drive in Indiana and watch television. So if you put your electronic device where you can see it, is it a violation? That's where it starts getting hazy. And the answer could cost you plenty.

It was a close call with a bad driver that made Michael Spangler first turn to police.

"They said I didn't give them a full license plate number, so they couldn't do anything about it," Spangler said. So he bought an app and a windshield mount for his iPod touch and began videotaping the road while he was driving. But in Warsaw, a local officer gave him a ticket, telling him, "If it can play videos, you can get a ticket for it," Spangler said.

The Indiana law the officer cited states that you can't drive a motor vehicle "that has a television set installed so that the screen of the television set can be seen by a person sitting in the driver's seat."

"So it actually has to be a television set, before it’s a violation of the law," said Sgt. Rich Myers of the Indiana State Police. "Only a television set is in violation of Indiana law. So GPS or a visual screen that's in the middle of a car is not a violation of that law." * * *

And Myers said Spangler shouldn't have to pay, because his portable electronic device is not a television set. But the question points out the need for clarification from Indiana lawmakers.

"I'm sure they are going to look at it as the technology improves and more people are getting this in their vehicles. I'm sure it's going to be looked at in the future," Myers said.

Safety is an issue, he said, noting that looking at your electronic device while driving can cause you to swerve or drift in and out of your lane, and that is a traffic violation.

As for Spangler, the prosecutor plans to throw out the ticket.

Posted by Marcia Oddi on Tuesday, May 22, 2012
Posted to Indiana Law

Law - "Industry Groups Insist on Charging You $1,195 to Read a Public Law"

This will be a familiar topic to many ILB readers - you may recall a number of posts on the Indiana building and fire codes, for example, being available not in the Indiana Administrative Rules, and not online, but only by purchase from private vendors.

David Halperin wrote May 18th in the Huffington Post about the same issue on the federal level. Here is how the article (which also includes video) begins:

Today, private organizations charge U.S. citizens hundreds of dollars simply to read a copy of standards they issue, standards that regulate things like gas pipeline safety, crane usage, and toy manufacturing -- even though citizens are required to obey those standards, because the federal government has incorporated them into regulations. This adds up to tens of millions of dollars annually that businesses, consumers, even government officials must pay to receive copies of our own laws. It's a ridiculous situation, and at last there's a public fight over it. This week that fight heated up.

Posted by Marcia Oddi on Tuesday, May 22, 2012
Posted to General Law Related

Ind. Gov't. - Vanderburgh County changes death-record policy

From a story in the Evansville Courier & Press, reported by Tim Ethridge:

Officially titled "On The Record," it's placed in the Local section and is where, on Sundays, we list our legislators' votes, marriage licenses and divorce declarations, bankruptcies, food inspections, births and, until recently, deaths and their causes.

Today, you'll notice, we have again listed deaths, but not the causes. That information is no longer made available to us by the Vanderburgh County Health Department.

According to a letter we received from county attorney Joe Harrison Jr., "such information is not required to be kept, and will not be included in the future permanent death records of the Health Department."

Being the contrarians that we are, we asked our attorney, Pat Shoulders, to look into it. Shoulders confirmed that a 2007 ruling by an Indiana public access counselor confirmed that the only required records on a death certificate are name, sex, age, place of death, residence address and Social Security number (which cannot be released to the public). * * *

Harrison, in an email, said that the department receives "a number of public records requests each week."

He said that the department chose to discontinue providing cause of death information to the public, including the newspaper, in order to save costs. * * *

But for researchers, genealogists (the much-honored site maintained by the late Charles Browning's family at browninggenealogy.org has included causes of death) and, of course, nosy neighbors, it's an unfortunate step back in public information.

Posted by Marcia Oddi on Tuesday, May 22, 2012
Posted to Indiana Government

Ind. Gov't. - This is unfortunate ...

From WLKI in Angola:

Picture Taking Of Recorders Office Documents Banned

Monday, May 21st, 2012

(ANGOLA) - You will no longer be allowed to bring in your own equipment to take pictures of documents in the Steuben County Recorders Office. Steuben County Commissioners approved an ordinance on Monday that bans the practice. Commission Chair Ron Smith said the action was taken after some issues were raised at the last meeting by County Recorder Dani Parrish. Parrish said a man recently wanted to bring his own scanning equipment into the office for an 85-page document. If you want hard copies at the Recorders office, it will cost you $1 a page.
Apparently, this decree would also prohibit snapping photos of pages with your cellphone, a common practice.

Posted by Marcia Oddi on Tuesday, May 22, 2012
Posted to Indiana Government

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

For publication opinions today (1):

In In the Matter of V.H.; J.H. v. Indiana Dept. of Child Services , a 15-page opinion, Judge Baker writes:

Here, a single mother of two teenage daughters was faced with a situation that is, unfortunately, not that uncommon to many parents of teenagers. On two occasions, the mother’s sixteen-year-old daughter, who outweighed her by about thirty pounds, became physically aggressive with her during an argument. To diffuse the situation, the mother called the police, who then reported the incidents to the Department of Child Services (DCS). The DCS investigated, and although it was determined that the daughter had been the aggressor in both incidents, the DCS filed a petition alleging that the daughter was a Child in Need of Services (CHINS) because of the mother’s failure to provide her with necessary care. The juvenile court granted this petition and ordered the mother to participate in services that were unrelated to the CHINS adjudication. We hold that the adjudication and the participation decree are erroneous.

J.H. (Mother) appeals the juvenile court’s order adjudicating her sixteen-year-old daughter, V.H., to be a CHINS. Mother argues that the DCS failed to prove that V.H. is a CHINS because there is no evidence that V.H. has suffered abuse or neglect or that the coercive intervention of the court is necessary for her to provide V.H. with the help that she needs to address her behavioral issues. Mother also contends that the juvenile court erred by ordering her to complete services unrelated to the CHINS adjudication. Concluding that the juvenile court erred by adjudicating V.H. to be a CHINS and by ordering services in the participation decree that were unrelated to the adjudication, we reverse the adjudication and vacate the participation decree.

NFP civil opinions today (1):

Ohio Farmers Insurance Company and S.C. Nestel, Inc. v. Indiana Drywall & Acoustics, Inc. (NFP)

NFP criminal opinions today (2):

Dwayne Rhoiney v. State of Indiana (NFP)

Charles E. Justise, Sr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 22, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 18, 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, May 18, 2012. It is one page (and 9 cases) long.

One transfer was granted last week:

Transfer was vacated and denied in Garwood v. State. See this ILB entry from May 20th for more. See also this story from Indy Politics.

Posted by Marcia Oddi on Tuesday, May 22, 2012
Posted to Indiana Transfer Lists

Ind. Courts - Bei Bei Shuai has been released from jail on bond [Updated]

Updating this long ILB entry from May 20th, various news sources, including WRTV 6 are reporting this morning that Ms. Shuai has been released on bond:

INDIANAPOLIS -- An Indianapolis woman charged with murder and feticide for eating rat poison while pregnant has been released from jail on bond.

Bei Bei Shuai, 35, has been in jail since being charged in March 2011.

At a bond hearing Friday, Marion County Superior Court Judge Sheila Carlisle ordered a $50,000 bond for Shuai, a Chinese immigrant, on the condition she surrender her passport and agree to be placed on GPS monitoring.

Shuai and her attorney cried and hugged well-wishers outside of jail Tuesday morning before driving away.

"I feel really happy," Shuai told reporters.

Carlisle initially refused to allow Shuai to be released from jail last June, but the Indiana Court of Appeals later ordered her to set bond. The Indiana Supreme Court last week allowed the appeals court ruling to stand. However, both higher courts declined to dismiss the charges against Shuai.
Bond is very rare in murder cases. * * *

Shuai's attorney, Linda Pence, asked for donations for her bond and her defense.

[Updated at 11:21 AM] Charles Wilson of the AP now has a long story with several photos of the release.

Posted by Marcia Oddi on Tuesday, May 22, 2012
Posted to Indiana Courts

Ind. Gov't. - More on "Indiana casinos struggling after years of growth"

That headline was from an August 7, 2011 story by Grace Schneider in the Louisville Courier Journal.

Today an editorial in the Fort Wayne Journal Gazette picks up on a Sunday story by their reporter Niki Kelly. The editorial begins:

Indiana’s gambling industry has most likely peaked, and Hoosiers will have to adjust to a permanent drop in revenue from gambling taxes.

The state’s economy is certainly a factor – Hoosiers just cannot afford as much discretionary spending – but the biggest reason lies in a simple word: competition.

Here is the Sunday story by Niki Kelly, headed "State casinos falling down on their luck: Revenues dip; rivals open in Ohio."

Posted by Marcia Oddi on Tuesday, May 22, 2012
Posted to Indiana Government

Ind. Gov't. - "Overdue and costing you: Indiana's late fees"

Sandra Chapman of WTHR 13 had a long story this weekend about "Indiana state agencies failing to pay their bills on time, some with mounting overdue fees, costing you millions." The report includes a long table showing "the agency with the highest interest (late fees) down to the lowest." A quote:

The 3 worst offenders: The Department of Child Services with more than a half million in late fees. The Indiana Department of Transportation with nearly a half million in late fees and FSSA Medicaid with more than a quarter of a million dollars in late fees.
Last night Chapman had another story, this one headed "Small town clerk questions state late fees." Some quotes:
INDIANAPOLIS - A small town administrator is socked with penalties for paying late, while state leaders don't have to follow the same rules.

13 Investigates has uncovered millions of dollars the state pays in late fees with no consequences. But in the town of Dayton in Tippecanoe County, an official was penalized for his overdue bills that were substantially less.

Good government in Dayton means paying bills on time. The cost of paying late hit Clerk-Treasurer Ron Koehler right in his own pocket.

"Something needs to be done," said Koehler, who was forced to personally pay back nearly $2,000 in late fees after a 2010 audit. * * *

"We had an assistant clerk in here that was paying the bills and didn't pay them on time, so me being the town clerk, I got charged for it," explained Koehler.

State Board of Accounts Examiner Bruce Hartman declined an on-camera interview, but said:

"We give a warning the first time that late payments and interest are not efficient use of taxpayer dollars. We try to help local and state government to understand it's not appropriate. If it does continue to happen, when we return for a follow-up audit, the policy does allow us to order the government official to personally pay for the late fees and interest."

"We believe in accountability," insisted Governor Mitch Daniels as he took questions about Indiana's recent discoveries of recent accounting errors.

But accountability for who?

In Koehler's case, the examiners said, "There were many instances of late payments to vendors" totaling $1,900 and "requested that Ronald Koehler reimburse the town."

He did, even though he had not received one dime in salary for seven straight years on the job.

Yet 13 Investigates found state agency after state agency racking up 100 times as much in late fees. Some of the agencies were paying anywhere from $100,000 to more than $500,000 in interest and fees.

Posted by Marcia Oddi on Tuesday, May 22, 2012
Posted to Indiana Government

Monday, May 21, 2012

Ind. Courts - Notre Dame sues feds over requirement to provide insurance coverage for contraceptives [Updated]

Margaret Fosmoe of the South Bend Tribune has the story this afternoon. The long story begins:

SOUTH BEND — The University of Notre Dame, the Catholic Diocese of Fort Wayne-South Bend and several other area organizations filed suit Monday challenging the constitutionality of a federal regulation that requires religious organizations to provide insurance coverage for contraceptives and other services that go against Catholic Church teachings.

Filed in U.S. District Court for the Northern District of Indiana, the lawsuit names as defendants U.S. Health & Human Services Secretary Kathleen Sebelius, Labor Secretary Hilda Solis, Treasury Secretary Timothy Geithner and their respective departments.

Other groups joining in the legal action are Catholic Charities of the diocese, Saint Anne Home and Retirement Community, Franciscan Alliance, the University of Saint Francis and Our Sunday Visitor.

Announced in January, the federal mandate would require Notre Dame, Catholic dioceses and many other religious colleges, hospitals and other organizations to provide in their insurance plans abortion-inducing drugs, contraceptives and sterilization procedures, which are contrary to Catholic teaching, university administrators said in a written announcement. The mandate also authorizes the government to determine which organizations are sufficiently “religious” to warrant an exemption from the requirement, they said.

The lawsuit charges that these components of the regulation are a violation of religious liberties guaranteed by the First Amendment, the Religious Freedom Restoration Act and other federal laws.
The Tribune has also posted a copy of the 57-page complaint, as well as the statements of ND President Jenkins and of Bishop Kevin C. Rhoades.

[Updated at 5:20 PM] It seems this is not the only suit. According to The Volokh Conspiracy, "In all twelve lawsuits were filed in twelve separate federal district courts. There are 43 separate plaintiffs in these suits, including the Archdioceses of Washington, D.C. and New York, Catholic University, and the University of Notre Dame."

Posted by Marcia Oddi on Monday, May 21, 2012
Posted to Indiana Courts

Ind. Law - Driver in Warsaw ticketed for using iPod as a dash-cam mounted on his front windshield, much like a GPS (or backup camera screen)

Clifton French, WSBT-TV reporter, has the story. Some quotes:

WARSAW Ind. -- We know it's illegal to text and drive, but what about getting a ticket for your iPod? That's what one Warsaw man says happened to him.

Michael Spangler says he was using his iPod Touch as a dash-cam mounted on his front windshield, much like a GPS, when he was pulled over and ticketed. He says he was using the iPod as a camera in case he was in an accident.

"A few months ago I was almost run off the road by another car and I didn't have video at the time of it." Spangler said, "When I called the police on it they said I didn't give them the full license plate on it so they couldn't do anything about it."

That's when Michael downloaded a dash-cam app on his iPod and bought a mount to put it in his windshield. And for several months, he hadn't had a problem.

Early Saturday morning, Michael received a ticket for driving with a television screen visible to the driver. According to Indiana Code 9-19-17-1, a person cannot operate a motor vehicle that has a television set installed that can be seen by the driver.

That law was written in 1991, before the days of GPS, smart phones and touch screens.

"With what (the officer is) saying, if it can play videos, you can get a ticket for this." Spangler said.

Posted by Marcia Oddi on Monday, May 21, 2012
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 16 NFP)

For publication opinions today (1):

In Dante Adams v. State of Indiana, a 6-page opinion, Judge Najam writes:

Dante Adams appeals the trial court’s order transferring $25,000 in cash seized from Adams to federal authorities. Adams raises a single issue for our review, namely, whether the trial court properly ordered the State to transfer the money to federal authorities. We affirm. * * *

Here, there is no serious question that the facts underlying the search of Adams’ car and the seizure of his cash were supported by probable cause and were, therefore, lawful. Indeed, this otherwise centerpiece argument seems so indisputable that Adams’ attorneys instead focus their appellate arguments on the fact that “Indiana’s forfeiture statute requires the State to demonstrate a nexus between the property sought by the State in the forfeiture and the underlying drug offense.” That is all well and good, see, e.g., Serrano v. State, 946 N.E.2d 1139, 1143 (Ind. 2011), but, as the State correctly notes in its brief, this case does not involve Indiana’s forfeiture statutes. It involves the turnover statute and, as described in Membres, that statute requires consideration only of the lawfulness of the seizure. The lawfulness of a seizure, in turn, is dependent on probable cause, which is not disputed in this appeal. Accordingly, Adams cannot demonstrate that he was prejudiced by the trial court’s transfer order, and we affirm that order.

NFP civil opinions today (2):

Sally G. Leonard and Indiana Farm Bureau Insurance, as Subrogee of Sally G. Leonard v. Brandon Vickers, and Weaver Heating & Cooling, Inc. (NFP)

Richard E. Stanbrough v. Bank of America National Assn. as Successor by Merger to LaSealle Bank National Assn., et al. (NFP)

NFP criminal opinions today (14):

Wayne A. Moorefield v. State of Indiana (NFP)

James Pierce, Jr. v. State of Indiana (NFP)

Johnathon Gregg v. State of Indiana (NFP)

James Gerald v. State of Indiana (NFP)

Alex Gregory Robertson v. State of Indiana (NFP)

Kenneth E. Russell v. State of Indiana (NFP)

Cassy Henry v. State of Indiana (NFP)

Brett Lyle Rork v. State of Indiana (NFP)

Julio Chavez v. State of Indiana (NFP)

Monwell Douglas v. State of Indiana (NFP)

Buster Joel Toschlog v. State of Indiana (NFP)

Christopher D. Richardson v. State of Indiana (NFP)

Joseph Jesse Clark Smith v. State of Indiana (NFP)

Demetrus Weems v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 21, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Demystifying the Judicial Selection Process"

A news release sponsored by ISBA, Women in the Law and Improvements in the Judicial System Committees:

Curious about the process lawyers go through to become appellate judges? Whether your interest in the state judiciary is vocational, historical, observational, or purely theoretical, learn more by attending Demystifying the Judicial Selection Process.

Members of the legal community who have served different roles in the selection process will share their experiences and answer your questions. Discuss how courts benefit from diversity. Find out what statutory criteria apply. We encourage lawyers of any age or political leaning to become better informed. Find out if you’ve got what it takes, now or in the future.

Confirmed Speakers include:

The Honorable Jane Magnus-Stinson, Judge of the United States District Court for the Southern District of Indiana and former Counsel to Governor Bayh

John Trimble, Partner, Lewis Wagner, LLP and former member of the Judicial Nomination & Qualifications Commission

This program is not limited to potential applicants for the next or any other judicial opening, but in an effort to provide greater access for those who might consider applying, people who attend this session will have access to two new confidential support services offered by the ISBA at no additional cost:

1. At your request attorney volunteers will proofread some or all or your application and provide feedback.

2. Also upon request, the ISBA will conduct a confidential and realistic mock interview.

June 7, 2012, 3:30 p.m. to 5:00 p.m. (1.5 hours CLE)

Location: IU McKinney School of Law

Cost: $25

Parking: Affordable parking is available at IUPUI’s Gateway Garage at 525 N.
Blackford off Michigan. Please allow time to walk about three blocks from
the garage to the law school.

Posted by Marcia Oddi on Monday, May 21, 2012
Posted to Indiana Courts

Courts - "The SCOTUS on Monday said a man's children who were born through artificial insemination after his death can't get Social Security survivor benefits."

This is a WSJ link to an AP story.

Posted by Marcia Oddi on Monday, May 21, 2012
Posted to Courts in general

Ind. Law - "Criminal code needs more than quick fixes"

Terry R. Curry, Marion County prosecutor, had this letter in the Sunday Indianapolis Star. It deals with the law permitting education credits for prisoners, which permitted the early release recently of Christopher Wheat. From the letter:

News of Wheat’s release understandably has outraged his victim and her family, prosecutors, law enforcement and the public. It has been suggested that this law was never intended to apply to a college graduate. It also has led to well-intentioned calls for Indiana legislators to address the shortcomings in the current statute, which can lead to unintended results such as the Wheat case. * * *

I repeat that calls to amend the pertinent statute are well-intentioned. However, I would also suggest that repeated grafting onto the code of revisions and amendments in response to perceived deficiencies or inequities, no matter how well intended, contributes to scenarios such as the Wheat matter. Merely again amending a statute simply will not go far enough in addressing the pressing need for criminal justice reform. Instead, the time is right for Indiana to conduct a thorough and comprehensive overhaul of the state’s criminal code.

The last comprehensive revision of the criminal code occurred 35 years ago in 1977. The Band-aid approach to amendment of the code, without sufficient thought given to how each discrete change impacts the criminal code as a whole, has led to inconsistencies and ambiguities in our criminal law. Perhaps more important, our world of 2012 looks nothing like the world of 1977. Our code should reflect the realities of our modern criminal justice system.

The good news is that there is impetus to undertake a comprehensive overhaul of the criminal code. An ad hoc committee has completed an initial review of the code. It is hoped that a summer study legislative committee of legislators, prosecutors, public defenders, judges and other stakeholders in the criminal justice system will continue the work of the ad hoc committee so that the comprehensive revision of the code can be considered in the next session of our Indiana legislature.

See also this ILB entry from May 2nd on reactive legislation. A quote:
The ILB recalls the Paige Grable case in 2007, which also dealt with the educational-credit program and caused outcry at the time, leading to the passage in 2008 of a bill "clarifying how education credits can be used to reduce an inmate's prison term."

Posted by Marcia Oddi on Monday, May 21, 2012
Posted to Indiana Law

Ind. Decisions - 7th Circuit issues two Indiana decisions today

In Cortezano v. Salin Bank (SD Ind., Barker), a 13-page opinion, Circuit Judge Wood writes:

Kristi Cortezano filed suit against her former employer, Salin Bank & Trust Company, alleging national-origin discrimination based on her marriage to Javier Cortezano, a Mexican citizen whose presence in the United States was unauthorized. (We use the couple’s first names to avoid confusion.) The district court granted Salin Bank’s motion for summary judgment, finding that Kristi failed to establish that her firing was based on an impermissible reason. Kristi now appeals. We find that any discrimination that led to Kristi’s firing was not based on Javier’s race or national origin, but rather on his status as an alien who lacked permission to be in the country. Because alienage is not a protected classification under Title VII, Kristi has no claim for relief, and so we affirm.
In Plumbers & Pipefitters Local v. Zimmer Holdings (SD Ind., Barker), an 11-page opinion, Chief Judge Easterbrook writes:
Two pension funds that own shares of Zimmer Holdings, Inc., charge it with defrauding its investors by downplaying the significance of difficulties it was having manufacturing some of its products and the high failure rate one surgeon reported for another of its products. * * *

Plaintiffs point to many other supposedly false statements and a host of detail that supposedly shows that one or another statement was knowingly false. The district court’s two lengthy opinions address all of these other statements. We have covered only the highlights— but, because these highlights are plaintiffs’ strongest arguments, there is no need to fill the Federal Reporter with the rest. We agree with the way the district court addressed them, and its judgment is AFFIRMED.

Posted by Marcia Oddi on Monday, May 21, 2012
Posted to Ind. (7th Cir.) Decisions

Stage Collapse - "State tweaks payouts for fair victims"

The ILB just looked at the part of HEA 1376-2012 dealing with the state fair stage collapse, and was surprised to find that it covered a lot more than I had recalled. Here from the digest:

Provides that the attorney general shall attempt to resolve before January 1, 2013, all claims and suits brought against the state or its employees for a death or injury occurring as the result of an accident at the 2011 state fair for an amount that, in the aggregate, does not exceed $11,000,000.

Specifies the amount of relief that victims of the accident at the state fair may receive.

Authorizes the attorney general to establish a process for determining the amount of compensation for persons who suffered physical injuries involving permanent paralysis or permanent physical trauma or requiring major and ongoing long-term care.

Establishes the supplemental state fair relief fund for the purpose of providing additional relief to the victims of the accident. Appropriates $6,000,000 from the state general fund to the supplemental state fair relief fund.

Caps attorney's fees for representation of an eligible person regarding compensation from the supplemental fund at 10% of the total compensation paid to the eligible person from the supplemental fund.

Provides that an eligible person may assign to the attorney general the eligible person's right to pursue a cause of action for the tortious breach of an insurer's duty to deal with an insured person in good faith.

Provides that if the insurance commissioner determines after a hearing that a person has committed an act that is listed as an unfair claim settlement practice and is related to a death or injury resulting from the accident at the 2011 state fair, the insurance commissioner may order certain remedies.

Specifies that the insurance commissioner may take such action without having to demonstrate that the act or practice occurs with such frequency as to indicate a general practice by the person.

Provides that neither a hospital nor an ambulance may place a lien on a distribution made from the supplemental state fair relief fund to a victim of the state fair accident. Prohibits an insurer from claiming subrogation or reimbursement rights with respect to a distribution made from the supplemental state fair relief fund.

Requires a person who intends to challenge the constitutionality of the prohibition against asserting subrogation or other reimbursement rights to file written notice of the person's intent to challenge this prohibition not later than 40 days after a distribution is made from the supplemental state fair relief fund.

Provides that distributions to the estates of persons whose death was caused by the accident at the state fair are exempt from inheritance tax.

In the enrolled act itself, see particularly the language beginning at p. 45, SECTION 62.

What caused me to take a look at the law was this AP story this weekend, headed "State tweaks payouts for fair victims: Process revised on allocation of added $6 million." Some quotes from the story:

Victims of the deadly stage collapse at last year’s Indiana State Fair are still waiting to collect $6 million state lawmakers approved for them nearly two months after Gov. Mitch Daniels approved the payments.

The Indiana attorney general’s office has notified claimants that they will have to go through a process different than the one initially used to distribute $5 million, which was the maximum allowed under the state’s liability cap.

Lawmakers in March approved the additional $6 million for those injured and the families of the seven people killed when high winds sent stage rigging plunging into a crowd of fans waiting for an Aug. 13 performance by country duo Sugarland.

The attorney general’s office said in an email to claimants that it is trying to find an “an efficient and respectful way” to distribute the money while limiting lawsuits.

State officials said the previous model used for claims against the initial $5 million won’t work because lawmakers approved specific payouts. The families of the seven people who died received $300,000 from the $5 million in December. The new law allows them to get an additional $400,000 each to bring their total to the maximum $700,000 allowed under Indiana law.

Those who suffered non-permanent physical injuries are to get 100 percent of their out-of-pocket medical costs paid. Previously, the state reimbursed just 65 percent of their medical bills. Those who suffered permanent paralysis or physical trauma could have their amounts determined through arbitration. * * *

State Rep. Ed Delaney, D-Indianapolis, who pushed for additional payments to victims, said he is monitoring the process but thinks the state is doing less than it should.

Posted by Marcia Oddi on Monday, May 21, 2012
Posted to Stage Collapse

Courts - "6 Tools in the Appellate Judge's Toolbox"

See this post from Circuit Splits. (If the link isn't working right now, you can currently see it here.)

Posted by Marcia Oddi on Monday, May 21, 2012
Posted to Courts in general

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, May 20, 2012:

From Saturday, May 19th, 2012:

Posted by Marcia Oddi on Monday, May 21, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

Next week's oral arguments before the Supreme Court (week of 5/21/12):

This week's oral arguments before the Supreme Court (week of 5/28/12):

Friday, June 1st

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/21/12):

Monday, May 21st

Wednesday, May 23rd

Next week's oral arguments before the Court of Appeals (week of 5/28/12):

Friday, June 1st

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, May 21, 2012
Posted to Ind. App.Ct. Decisions

Sunday, May 20, 2012

Ind. Decisions - "Craig application over siding again denied in New Albany: Preservation commission’s first decision was upheld by court of appeals"

Daniel Suddeath reports in the May 20th New Albany News & Tribune:

NEW ALBANY — A retroactive request to allow vinyl siding to be used to replace the original wood material of the house that quarters Bradford Realty was denied by the New Albany Historic Preservation Commission this week.

It was the second time the commission rejected Bradford Realty owner Ron Craig’s petition for a Certificate of Appropriateness — or COA — for the installation of vinyl siding, and the previous decision was upheld by the Indiana Court of Appeals in March.

The issue is vinyl has already been applied to the 419 E. Market St. building, and there isn’t much of a track record for the city to call upon in terms of how to go about removing the siding.

Bradford Realty is located within the Downtown Historic District, and the commission oversees certain building repairs for structures inside historically designated zones. One of the city’s guidelines for such building repairs states that if wooden features are missing or damaged beyond repair that they be “replaced in kind.”

In 2008, Craig sought to replace the original wood siding on the house, as he said the panels were blemished and in need of being upgraded. But Craig didn’t seek approval from the commission before ordering the repairs, and the city’s guidelines forbid original wood from being replaced with an artificial material.

Officials notified Craig after work had commenced that he had to request a COA before replacing the siding. He appeared before the commission, and his was request was denied.

Craig took the matter to court and claimed he had no knowledge the building was in the Downtown Historic District, which was established in 2002. He made the same assertion to the commission Wednesday, as he stated he discussed the matter with the building commissioner at the time.

“There was never any mention of the historic preservation zone,” Craig said.

In 2011, Special Judge Daniel Moore decided in favor of Craig, as he ruled the commission failed to properly notify land owners of historic district restrictions. But that ruling was overturned by the Indiana Court of Appeals in March, and the commission stuck to its original decision by again denying Craig’s COA request.

“No revisions have been made to the design guidelines since the initial denial, and the application itself is essentially unchanged, requesting after-the-fact approval for vinyl installation,” said commission member Christina Pfau, who read the staff comments portion of the reply to Craig’s application.

More from the story:
Craig asked why his application was denied when Don Williams Plumbing and Heating was recently allowed to replace siding on its building at the corner of Spring and Ninth streets, which is in a historic preservation district, with vinyl material.

Stephen Pacciano, president of the commission, said the cases were different. The original wood siding on the Williams Plumbing building had previously been replaced with aluminum, he said. Therefore, the city’s regulations allow for artificial to artificial replacement, so William’s Plumbing was allowed to use vinyl siding, he said.

The Bradford Realty building still had its original wood siding at the time the vinyl was applied, city officials said.

See earlier entries regarding this case.

Posted by Marcia Oddi on Sunday, May 20, 2012
Posted to Indiana Decisions | Indiana Government

Ind. Courts - More on "Court to set bond for Indianapolis woman in baby's death"

A brief AP story last Wed., May 16th reported that a "bond hearing for 35-year-old Bei Bei Shuai" was set for last Friday.

Charles Wilson of the AP reported on Friday. The long story begins:

An Indiana judge set bail Friday for a Chinese immigrant who has spent more than a year in jail on charges that she murdered her 33-week-old fetus by eating rat poison, in a closely watched case that has potentially broad implications for women's rights.

The $50,000 bond Judge Sheila Carlisle set for Bei Bei Shuai is unusual, as defendants in Indiana murder cases are rarely given the chance. Carlisle denied Shuai's bond request last June, but a state appeals court agreed with Shuai's attorneys that there was enough evidence to cast doubt on the murder and feticide charges she faces.

The soft-spoken Shuai, wearing an orange jumpsuit and occasionally dabbing at her wet eyes with a tissue, assured the judge that she would not flee to China to avoid prison. "I want to fight this case," she said on the witness stand.

"I love this country," said the 35-year-old Shanghai native, who said she came to the U.S. in 2000. "I've become a mature woman here instead of a little girl."

Even so, Carlisle ordered Shuai to surrender her passport and submit to GPS tracking after she was released. She also was told not to leave the state without the court's permission. Her attorney, Linda Pence, said Shuai would stay with friends and work in their restaurant once she got out of jail.

Shuai has burned through her savings fighting the charges, and Pence said a fund has been set up where supporters can donate to help Shuai post bond and pay her legal bills. She said women's groups, church groups, students and others have already offered support, and a website has been set up to accept donations toward Shuai's release and defense.

"There has been an outpouring of support for Miss Shuai not only from throughout this state but throughout this country and internationally," Pence told reporters after the two-hour hearing in Marion County Superior Court.

Even if she's released, Shuai faces an immigration detainer from U.S. Immigration and Customs Enforcement, agency spokeswoman Gail Montenegro confirmed Friday. Attorney David Cook told the court that meant Shuai would have to be interviewed by ICE, which would then determine whether she should be held, released on bond, or ultimately deported.

NPR's Health Blog had this long story by Julie Rovner, posted late Friday afternoon. Some quotes:
At issue are laws — now in force at both the federal level and in at least 36 states — that make it a crime to cause death or injury to a fetus. The idea driving passage of these measures was to recognize a second victim in crimes against a pregnant woman. In fact, the federal law is technically known as "Laci and Connor's law," in recognition of the murder of the pregnant Laci Peterson, a much-publicized crime in California in 2002.

"These laws were passed by the legislature to protect women from third-party violence, not to be used against women themselves," Emma Ketteringham, one of Shuai's lawyers, said, in a media briefing.

But the Indiana Court of Appeals didn't agree. In a 2-1 decision in February, the court, said Ketteringham, "made it quite clear that pregnant women are no different than third parties when it comes to their pregnancies."

Then last week, the Indiana Supreme Court refused to consider the case, letting the Appeals Court ruling stand. The Supreme Court, however, did order the bond hearing, which resulted in today's ruling.

Here is a long list of earlier entries about the case.

Here is a link
leading to the 31-page, 2-1 COA opinion in Bei Bei Shuai v. State.

Posted by Marcia Oddi on Sunday, May 20, 2012
Posted to Indiana Courts

Ind. Decisions - Federal Judge Jon E. DeGuilio heard arguments re 3 of the remianing unresolved issues in Indiana’s fight to execute Corcoran, 37, who killed at least four people before he turned 23.

Here is a lengthy story with a good deal of interesting detail, dated May 17th, by Rebecca S. Green of the Fort Wayne Journal Gazette, that begins:

SOUTH BEND – Eighteen months ago, the U.S. Supreme Court sent Joseph Corcoran’s case back to the lower courts for the second time, effectively reinstating the death penalty against him.

But a few issues remained unresolved in Indiana’s fight to execute Corcoran, 37, who killed at least four people before he turned 23.

On Thursday, in U.S. District Court in South Bend, Judge Jon E. DeGuilio heard arguments about three of the remaining issues – whether Allen Superior Court Judge Fran Gull improperly used “non-statutory” factors against Corcoran when she sentenced him to death; whether she failed to properly consider factors in his favor; and whether Indiana’s death penalty statute is unconstitutional.

DeGuilio took the matter under advisement, and when Indiana Deputy Attorney General Steve Creason reminded him that the case has been pending since 2005, he said he would rather get it right than have the attorneys get a quick ruling.

Should DeGuilio rule in favor of the state’s desire to enforce the death penalty, the courts will then likely have to consider Corcoran’s remaining claim, whether he is incompetent because of his mental illness and should be spared the death penalty.

Posted by Marcia Oddi on Sunday, May 20, 2012
Posted to Indiana Decisions

Ind. Decisions - "A circuit court judge slammed the Indiana Department of Child Services on Tuesday, accusing it of failing to help children with mental illnesses."

Marisa Kwiatkowski of the NWI Times reported on Tuesday's ruling out of Morgan County - some quotes:

MARTINSVILLE | A circuit court judge slammed the Indiana Department of Child Services on Tuesday, accusing it of failing to help children with mental illnesses.

Morgan Circuit Court Judge Matthew Hanson said DCS has "unchecked" power when it comes to determining whether a child needs court-ordered services beyond the care a parent can provide.

But, he said, the agency isn't using that power effectively.

"It would seem DCS is simply waiting around until the child commits such egregious or dangerous acts that the (juvenile delinquency) system has no choice but to file charges against a child with a mental disease/defect, and then the DCS can simply ignore any pleas thereafter to aid such a child," he wrote in his ruling Tuesday. * * *

A Times investigation published earlier this month found families throughout the state struggling to find services for children with severe mental illnesses or disabilities. When all other efforts fail, those families are told to let DCS file a petition for child in need of services 1, known as CHINS 1. Doing so results in parents claiming they neglected their children.

Parents and mental health officials complain there is a multi-agency failure to provide more intensive services, but Hanson's ruling solely placed the blame on DCS.

Hanson said he has "serious questions" about whether DCS is doing what it is supposed to for children with mental illnesses. His ruling stemmed from DCS' actions regarding a Morgan County child who first entered the court system as a juvenile delinquent. * * *

Multiple people — including the child's juvenile probation officer and a prosecutor — had called DCS' abuse and neglect hot line about the child, but nothing was done, Cline said.

Frustrated, Cline filed a CHINS petition in mid-April to secure services for that child. Typically, DCS is the only agency to file such petitions. * * *

DCS filed a motion to dismiss the CHINS case brought by Cline, arguing DCS has sole authority to file such petitions. The agency said Tuesday the child could have received the same services through Morgan County's probation system.

"We are very concerned that the prosecutor chose to tie up a child's interest with an unnecessary legal wrangling in which he never had legal authority to introduce in the first place," McFarland said in a written statement to The Times.

Cline said the child would have to plead guilty to a crime to receive services through the probation department. He also said probation can't order the parents of a juvenile delinquent to do anything, but the judge involved in a CHINS case could.

Judge Hanson's ruling on Tuesday reluctantly agreed that Cline didn't have the power to file a CHINS case, but he criticized the agency's failure to act.

"There were seven calls to DCS containing similar — and even the exact same — information that the prosecutor relied upon (to file his CHINS petition), and yet not until this action arose and was to be heard in a public forum did DCS take steps to file any type of CHINS action," Hanson wrote. * * *

The judge blamed the Indiana Legislature for taking out of state law county prosecutors' ability to file CHINS cases.

"Because the Legislature removed the prosecutor language, they have essentially left all decisions to file or not to file in the hands of the DCS with no option of being heard from anyone else," Hanson wrote.

Hanson said Morgan County can't be the only county facing this dilemma with children's mental health problems.

"The issue presented here in this case cannot simply be left to die as it is likely one that is problematic throughout the state of Indiana in regards to how DCS is refusing to handle mental health/disease cases as they should be," he wrote.

Cline said he sent Hanson's ruling to the Indiana attorney general's office to help him determine if he should appeal. He also said he plans to contact his state senators and representatives about changing the law so someone has oversight over DCS.

Here is the 10-page trial court ruling in In the Matter of AA.

Ms. Kwiatkowski has a long, in-depth story today headed "Officials: Mentally ill children who don't get help can end up in criminal justice system." Some quotes:

Parents, judges, prosecutors, and other officials in Indiana say there is a multi-agency failure to provide mental health services to the children who need it most. * * *

Judge Loretta Rush, who handles juvenile cases in Tippecanoe County, said the state's problem is twofold: There aren't enough providers to meet children's mental health needs, and it isn't clear how to navigate the network of state agencies.

The Bureau of Developmental Disabilities Services, Division of Mental Health and Addiction, Indiana Department of Education, Medicaid and DCS share responsibility for Indiana children who need such services.

Rush, who also presides over the state's Juvenile Justice Improvement Committee, said some parents clearly want help but can't get it.

"It would be nice if parents could access mental health services short of their children being wards of the court," she said.

When that doesn't happen, mentally ill and developmentally disabled children can enter the court system as "children in need of services" or as juvenile delinquents, depending on the situation.

Multiple prosecutors, public defenders and probation officers told The Times too many mentally ill children are entering the court system with juvenile delinquency cases. They said these children's crimes are the result of their mental illnesses or disabilities, and the children would be served better outside of the criminal justice system.

John Thorstad, chief probation officer in Starke County, said he has "some anguish" over the mentally ill children who end up in detention centers.

"It's unfortunate, but it happens," he said. "We deal with the kids we're given."

For a child to receive services through a juvenile delinquency case, he or she must be adjudicated, which is the juvenile equivalent of a criminal conviction. That action comes with a label that could follow children for the rest of their lives.

Juvenile adjudications may result in school suspensions or expulsions, limits on higher education, eviction from federally funded housing, suspension of a driver's license or permit, or the denial of military service applications, said Kaarin Lueck, a Wayne County-based public defender.

Court officials said children can petition to get their juvenile records expunged.

But some prosecutors and public defenders said a better option for mentally ill or disabled children facing criminal proceedings would be having the Indiana DCS file a petition for child in need of services 6, or CHINS 6. The law states that is applicable when "the child substantially endangers his/her own health or the health of another individual."

DCS rarely uses this portion of state law — a decision that infuriates some parents and court officials.

DCS Director James Payne told The Times he does not like to use CHINS 6 because it creates an adversarial relationship between the parent and child. Under CHINS 6, the child and parents have separate attorneys, and the child's attorney is legally bound to defend the child's interests. The result likely is that the child will be placed in an institution.

Payne said using a child in need of services 1, or CHINS 1, is the best option under current law. That portion of the law applies when "the child's physical or mental condition is seriously impaired or seriously endangered as a result of the parent/guardian/custodian being unable, refusing or neglecting to supply the child with necessary food, clothing, shelter, medical care, education or supervision."

When CHINS 1 is substantiated, the child's parents' names could be added to the child abuse registry — though they can appeal afterward to get their names removed. Payne said he isn't sure how long that process takes.

Parents' names are not added to the child abuse registry under CHINS 6. Parents and court officials said they don't buy Payne's explanation for not using CHINS 6.

"When you have every single person touching this kid saying this needs to be a CHINS, and you can't make it a CHINS, there's something wrong with the system," public defender Lueck said.

Court officials blame a 2008 change in state law that took away prosecutors' ability to file CHINS cases. DCS became the only entity that can file them.

In an opinion released Tuesday, Morgan Circuit Court Judge Matthew Hanson called the law change "a grave mistake." He criticized DCS for having "unchecked" power over CHINS cases but not using it.


Posted by Marcia Oddi on Sunday, May 20, 2012
Posted to Ind. Trial Ct. Decisions | Indiana Government

Ind. Law - "In Indiana, domestic violence can pose dilemma for employers"

Good front-page article in the Sunday Indianapolis Star, reported by John Tuohy. Some quotes from the lengthy story:

After her boyfriend beat her and threatened to kill her in October, Kristianne Rouster was issued a protective order that prohibited him from contacting her in person, on the phone or by text.

Because such orders routinely include the workplace, Rouster told her employer, Pitney Bowes.

Within a month, she was fired.

"They said they need to protect their employees," Rouster said of her supervisors. "They said they were scared."

It's an explanation that workplace experts and women's rights advocates say they understand. "I don't fault the company for being concerned about their workers," said Lynn Hecht Schafran, senior vice president at Legal Momentum, a New York-based legal defense organization for women and children. "This is a concern for companies everywhere."

But Rouster's case also exposes what some say is a shortcoming in Indiana law. While Indiana has some progressive domestic violence laws, immunity from job termination isn't one of them.

That could be one reason why Rouster's predicament isn't unique. An Indianapolis attorney said it "happens all the time" and that she has intervened on behalf of at least a half-dozen abuse victims who were fired.

Women's advocates fear such dismissals may have a "chilling effect," discouraging abused women from pondering protective orders because they face a choice between their job and their safety. And some are calling for a change. * * *

Fifteen states prohibit employers for terminating victims because they took legal action against an abusive spouse. Most of those states even require companies to give battered women time off to deal with the legal issues or to settle into a new living environment.

Indiana isn't one of them. But it is one of only seven states to provide unemployment compensation to women who are forced to quit their jobs because of the threat of domestic violence or stalking.

Carrie Hyatt Bloomquist, legal director at the Indiana Coalition Against Domestic Violence, said the firing could have a "chilling effect" on other women who are abuse victims.

It is difficult enough already, she said, to persuade victims to file protective orders or leave their abusive spouses.

"Survivors (of violence) live in fear of their abusers -- that's how they control them," she said. "If the reaction to seeking help is going to be negative or hostile, it is no wonder more women don't seek it."

Hyatt Bloomquist said she has intervened on behalf of about a half-dozen abuse victims in Indiana who were terminated and helped them keep their jobs.

"Once the ramifications are explained to the employers, they usually come around," she said. "But with some companies, the attitude is that it is a family matter and it is too messy for them to deal with."

Posted by Marcia Oddi on Sunday, May 20, 2012
Posted to Indiana Law

Ind. Decisions - More on: Supreme Court lets Tax Court decison in Garwood v. State stand

Last Thursday, May 17th, the Supreme Court decided to let stand the Tax Court's decision in Indiana Department of State Revenue v. Virginia Garwood, et al.

The traditional press has not picked up on this ruling. Here is some background.

This Aug. 20, 2011 ILB entry reported Judge Wentworth's Tax Court decision from the previous day, and quoted from the Aug. 19th opinion at length. Here is a sample:

It cannot reasonably be inferred that the jeopardy assessment procedure was used in this case to protect the State's fiscal interests. For example, the day after the Garwoods' 240 dogs were seized, the Department sold them all to the Humane Society for a total of $300.00, yet logic dictates that the dogs had a value far greater than just over $1.00 each. * * * Moreover, a media circus roiled on the very day the Department and the OAG served the jeopardy assessments, jeopardy tax warrants, and seized the Garwoods' assets. Within hours of the raid, individuals from the OAG were interviewed on television and by newspapers about shutting down a “puppy mill.” The unusual occurrence of this media hype in conjunction with the Department's sale of the Garwoods' property for a nominal sum demonstrate that the Department wielded the power of jeopardy assessments as a sword to eliminate a socially undesirable activity and close down a suspected “puppy mill,” [15] not to fill the State's coffers with the tax liabilities the Garwoods purportedly owed. [ILB emphasis]

Jeopardy assessments are a powerful collection tool that, when properly used, further the important state interest of collecting state tax revenue needed to pay for critical governmental services and conducting the business of the state. The designated evidence shows that the Garwoods did not remit the proper amount of tax due to the state on their sales, a fact the Garwoods have repeatedly acknowledged. Nonetheless, the Department overstepped its authority in this case by issuing jeopardy assessments without having shown the exigent circumstances required by Indiana Code § 6-8.1-5-3 and 45 IAC 15-5-8. Consequently, the Court holds that the sixteen jeopardy assessments issued to the Garwoods for all or part of the 2007 though 2009 tax years are void as a matter of law. * * *

CONCLUSION. For all the foregoing reasons, the Court DENIES the Department's motion for summary judgment in its entirety and GRANTS summary judgment in favor of the Garwoods. The Court REMANDS the matter to the Department and ORDERS it to void all of the Garwoods' jeopardy assessments and take any other actions necessary to give full effect to this Order. The parties shall bear their own costs.
_________________
[15] 15 (See Petrs' Des'g Evid. Vol. 2, Ex. J at 1, 4 (article written by Andrew W. Swain, Tax Ills Behind the Mills – the Advancement of Puppy Protection, stating “[s]o far, using its state tax laws, Indiana has successfully closed two puppy mills and prosecuted their operators for various tax crimes”) and (citing "Puppy Mill Busted: Dogs Taken from Harrison County Farm to New Albany Warehouse," Ind. Law Blog (June 3, 2009), available at http://indianalawblog.com/archives/2009/06/ind_law_puppy_m.html (discussing the Virginia Garwood case”).)

The thorough Aug. 20th ILB entry also contains much other information, including a 6News story on the so-called "Al Capone strategy."

A case in federal court Garwood v. State (SD Ind.) was remanded to Harrison County Circuit Court on Oct. 11, 2011. Judge Pratt wrote:

On June 17, 2011, a group of Defendants (also referred to as “Defendants” for purposes of this entry) removed this action to federal court in light of Plaintiffs’ federal claims. * * *

Although there are 46 Defendants in this case, only one matters for purposes of the present motion: Defendant Lisa Marie Pittman (“Pittman”), who has not consented in writing to removal of this action. * * *

Given Pittman’s failure to consent and Defendants’ failure to show that Pittman is a nominal party, this case must be remanded.

Lastly, Bryan Corbin of the AG's office was quoted as saying about the significance of the Supreme Court's decision not to grant transfer: "The State has other avenues it can pursue to collect unpaid taxes." But according to the Tax Court opinion, that is just the point, jeopardy assessments were not used properly in this case; the State has other, suitable tools.

Here, from the Tax Court opinion, is what happened on June 2, 2009, the date the Attorney General and the Department of Revenue served the jeopardy assessments:

[On June 2, 2009], a tumultuous series of events took place as an unspecified number of individuals from the OAG and the Department went to the Garwoods' residence just after 7:00 a.m. to serve the jeopardy assessment documents and demand immediate payment of the tax, interest, and penalties allegedly owed. An investigator from the Department's special investigation unit explained to each of the women individually that the amount she owed was $142,367.94 and that without immediate payment, the State would then and there “levy [her] personal property to satisfy the taxes due[.]” When first Virginia and then Kristin stated that she could not pay that amount immediately, the investigator served each with the Jeopardy Tax Warrants and the associated Investigation Summaries. The Department and the OAG, assisted by the Indiana State Police and sixty volunteers from the United States and Missouri Humane Societies, seized all 240 dogs on the premises, including the Garwoods' house pets and farm dogs. Other property seized from the Garwoods included $1,260 in cash, business records showing the Garwoods received $25,274.31 from their dog sales, un-cashed checks totaling $1,325 (two containing dog sale notations), and copies of Virginia's 2005, 2007, and 2008 federal and state income tax returns. Later the same day, the Department and the OAG filed with the Harrison Circuit Court all of the Jeopardy Tax Warrants and a Verified Petition for a Post-judgment Restraining Order and Injunction that sought to enjoin the Garwoods from doing business in Indiana until their tax liabilities were satisfied. That afternoon, the Attorney General held a television press conference and newspaper interview, publicizing the seizure of the Garwoods' dogs.

The next day, the OAG (on behalf of the Department) sold all of the 240 dogs seized to the Humane Society of the United States for a total of $300.

Posted by Marcia Oddi on Sunday, May 20, 2012
Posted to Ind. Sup.Ct. Decisions | Ind. Tax Ct. Decisions

Thursday, May 17, 2012

Ind. Decisions - Supreme Court lets Tax Court decison in Garwood v. State stand [Updated]

BREAKING

A week ago, on May 10th, the Supreme Court heard oral argument in Indiana Department of State Revenue v. Virginia Garwood, et al.

Today the Supreme Court announced its 5-0 decision:

AFTER FURTHER REVIEW, INCLUDING ORAL ARGUMENT, THE COURT HAS DETERMINED THAT REVIEW WAS IMPROVIDENTLY GRANTED.

ACCORDINGLY, THE ORDER GRANTING REVIEW IS VACATED.

THE REVIEW PETITION FILED BY THE DEPARTMENT OF STATE REVENUE IS DENIED. PURSUANT TO APPELLATE RULE 63(N), LITIGATION BETWEEN THE PARTIES IN THIS COURT IS AT AN END.

THE CLERK IS DIRECTED TO CERTIFY THIS APPEAL AS FINAL.

BRENT E. DICKSON, CHIEF JUSTICE
ALL JUSTICES CONCUR.
(ORDER REC'D. 5/16/12 AT 11:15 AM) ENTERED 5/17/12 KM

Here is a long list of earlier entries on this case.

[Updated 5/20/12] Here is a copy of the above in the form of a one-page published order.

Posted by Marcia Oddi on Thursday, May 17, 2012
Posted to Ind. Sup.Ct. Decisions | Ind. Tax Ct. Decisions

Ind. Courts - "Indiana Supreme Court Facing Another Possible Vacancy"

From WCSI:

The Indiana Supreme Court could soon face its fourth vacancy in two years, and its third in six months. Justice Robert Rucker is scheduled to face the voters in November for Indiana‘s once-every-10-years retention vote. But Chief Justice Brent Dickson says Rucker is considering retirement. Rucker must file paperwork with the secretary of state by July 16 to get his name on the ballot. If he doesn‘t, the Judicial Nominating Commission could choose finalists to replace him by mid-September. That would make four of the five justices appointees of retiring Governor Mitch Daniels.

Posted by Marcia Oddi on Thursday, May 17, 2012
Posted to Indiana Courts

Wednesday, May 16, 2012

Vacancy on COA 2012 - "5 semifinalists chosen for Appellate Court seat"

Jon Murray reports this evening in the Indianapolis Star:

The Indiana Judicial Nominating Commission this afternoon named two attorneys, two judges and a law professor as semifinalists for a vacancy on the Indiana Court of Appeals.

Appeals Judge Carr L. Darden is stepping down this summer from the 15-member court. * * *

The semifinalists, chosen after interviews today, are: Marion Superior Court Judge Robert R. Altice Jr.; Abigail Lawlis Kuzma, Indianapolis, an attorney in the Indiana attorney general's office; Patricia Caress McMath, Indianapolis, an appellate attorney in the Marion County Public Defender Agency; Madison Circuit Judge Rudolph R. Pyle III; and Joel M. Schumm, Indianapolis, a clinical professor at Indiana University's Robert H. McKinney School of Law.

A second round of interviews is set for June 4 and 5.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - candidates selected for Round Two

Altice
Kuzma
McMath
Pyle
Schumm

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round One, Interviews Over, What Next?

4:00 p.m. – Executive Session of JNC, to be followed by public vote to select semi-finalists.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round One, Interview #14

This is Attorney Cara Wieneke's report on the fourteenth interview (and final) of Round 1

Hon. Robert R. Altice, Jr., Marion Superior Court, Criminal Division 2

Judge Altice most admires the COA's close relationship with the Bench and the Bar. He also noted their teaching activities.

He mentioned his mentoring and teaching activities, his experience on the bench, his experience as a practicing lawyer, snd his organizational skills. Finally, he cited his high approval rating on Bar surveys.

In response to the CJ's question about the growing number of pro se litigants, Judge Altice suggested providing more resources for them to litigate the cases themselves, as well as setting up a bar referral system to help get them counsel.

He discussed his docket in Marion County and described how time management is key to keeping up with the workload.

In response to a question from CJ Dickson, Judge Altice favors bringing plain-language jury instructions to criminal cases.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round One, Interview #13

This is Attorney Cara Wieneke's report on the thirteenth interview of Round 1

Mr. Joel M. Schumm, Indianapolis

Joel Schumm indicated he most admired the COA's willingness to explain in detail in every case why they reached a particular decision.

Schumm cited his work ethic, beginning in high school, as a quality that makes him a good candidate. He also mentioned his legal education achievements, his previous experience as a judicial clerk, and his extensive appellate work. He discussed his reputation in the legal practice, including his active involvement in the Bar and his various teaching opportunities.

In response to CJ Dickson's question about innovation, Schumm would like to see electronic filing implemented, but he would also like to see shortened deadlines for transcripts in certain cases in order to shorten the time it takes an appeal to get to the briefing stage.

Schumm mentioned that if he became a COA judge, he would continue to teach because he feels it is a rewarding experience. He noted that Justices David and Rucker are currently teaching courses at the law school.

When asked by Ms. Northenor what strength Schumm would bring to the COA, he stated his strong legal writing skills. He also discussed the importance of mentoring clerks, interns, etc. as a judge.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round One, Interview #12

This is Attorney Cara Wieneke's report on the twelfth interview of Round 1

Ms. Kari Evans Bennett, Noblesville

Ms. Bennett admired the COA's universal availability to nearly all litigants. She also noted that in most circumstances the COA is the last resort for litigants.

With respect to her attributes, she cited to the importance of diversity in practice. She noted the absence of ordinary criminal law experience but cited to her work in the environmental crime arena.

She also stated that she has worked in both government and private practice.

The strengths she would bring to the COA: ability to understand complex matters; her approach to resolving cases and making sure that people know how they reached a particular decision.

Finally, CJ Dickson asked about the final outcome of the BP Whiting facility, which Bennett described favorably.

Ms. Northenor asked whether the CAFO legislation was changed in some way through her work. She noted that the legislation was strengthened.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round One, Interview #11

This is Attorney Cara Wieneke's report on the eleventh interview of Round 1

Hon. Rudolph R. Pyle, III, Madison Circuit Court 1

Judge Pyle most admires the COA's deliberative process and the collegiality amongst the judges. He used the example of dissenting opinions, where judges will "respectfully" dissent.

He cited his depth of experience, including his time as a police officer, prosecutor, defense attorney, adjunct faculty, solo practitioner, appellate counsel, judicial clerk, and trial judge.

He stated the Civil Rights Movement and other social justice issues were the impetus for his choice to become a lawyer.

Ms. Northenor was impressed with Judge Pyle's hobbies/activities, particularly his markmanship. She commented that his activities showed a great deal of dedication, which was commendable.

Mr. Winingham was pleasantly surprised by Judge Pyle's grant of post-conviction relief in Marcum v. State, particularly given his law enforcement background. Judge Pyle cited his law clerk experience for Judge Darden for his thorough consideration of the issues and his written findings in that case.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round One, Interview #10

This is Attorney Cara Wieneke's report on the tenth interview of Round 1

Ms. Patricia Caress McMath, Indianapolis

McMath began her interview by discussing what she most admires about the COA: the fact that the Court issues written opinions in EVERY case; they issue them quickly, and they handle the caseload with great civility. She also praised the Court's traveling oral argument program. Finally, she admires the Court's recent refusal to decide issues based solely on the waiver doctrine. She applauded their decision to decide issues on the merits.

She cited her vast experience in appellate law, including her 7 years as a clerk, her fulltime position as an appellate public defender, and her ability to manage her workload while being a stay-at-home mother. She also noted her experience teaching legal writing, and how that will assist her in teaching her clerks how to draft opinions.

CJ Dickson noted she had 4 children in the span of 5 years. She discussed the challenges she faced as a work-at-home mother for 14 years. Because of time constraints, she reduced her Bar Association activities but never her caseload. She routinely carried a sizable appellate caseload.

When asked by Ms. Kitchell how she feels about not-for-pub opinions, McMath noted that the COA writes those opinions just as carefully and thoroughly as other opinions. Thus, the different treatment between opinions no longer makes sense.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round One, Interview #9

This is Attorney Cara Wieneke's report on the second interview of Round 9

Mr. Chris M. Teagle, Albany

Mr. Teagle answered the question given to all candidates today by saying that he most admired the following about the COA: the excellency of the written opinions as well as the transparency and openness of the court's proceedings. He also noted the respect that the Court treats both counsel and litigants with.

He cited to his diverse practice and his time on the bench in Delaware County as assets he would bring to the Court. He also discussed a compassion for the situations litigants find themselves in.

In responding to Mr. Winingham's question about how he would handle the caseload, Teagle responded that he is a "Type A" personality and has strong time management/organizational skills.

In response to Mr. Winingham's question about his extensive jury trial experience, he said it still amazes him how well juries follow the instructions they are given. Thus, the COA opinions are important because they influence the wording of jury instructions that will be given in the future.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round One, Interview #8

This is Attorney Cara Wieneke's report on the eighth interview of Round 1

Hon. William C. Menges, Jr., Howard Superior Court 1

Judge Menges began by describing where the COA began when he first practiced law. He noted its "mediocre" reputation in its early history. So he most admires the COA's change over the years to the Court that it is today and the excellent reputation it currently has.

Judge Menges noted his previous experience as both a prosecutor and a public defender, as well as his civil litigation experience, as an asset for this position.

CJ Dickson asked where we should be headed with respect to pro se litigants. Judge Menges said "if he were king," he would love to eliminate all pro se law. But he understands that isn't possible. He noted the concern he had as a public defender with the growing number of cases public defenders were being called upon to handle as appointed counsel.

He discussed his role in implementing the drug court, re-entry court, and domestic violence court in Howard County.

In response to a question by Mr. McDonald about merit selection and its role in improving the COA's reputation, as Judge Menges mentioned earlier, Judge Menges noted the obvious correlation between the two. He believed that removing politics from the process clearly improved the stature of the COA. He also cited former CJ Shepard's visionary leadership.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round One, Interview #7

This is Attorney Cara Wieneke's report on the seventh interview of Round 1

Ms. Rebecca A. Trent, West Lafayette

Ms. Trent began by stating that she most admires the fact that the COA does not choose its cases, yet it really takes its time with each case and doesn't gloss over the facts or the issues, even though they may have seen the issues many times before. She also noted their timeliness in issuing opinions.

She stated her engineering background (including her ability to see the big picture, to evaluate the evidence, and to problem-solve) are important qualities she would bring to the position. She also cited her technical background, which would help with implementing more technological advances on the COA.

Ms. Kitchell asked Trent about her public broadcasting work. Trent stated that she does fundraising work for public radio, and that she is an avid listener.

CJ Dickson asked her whether it was a good idea for the COA not to follow its own precedent. She said that should be revisited, although she did not think an en banc process was necessary.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Ind. Courts - "Reporter Found In Contempt For Texting: Judge Gull Orders Phone Destroyed"

Rebecca S. Green reports in the Fort Wayne Journal Gazette:

FORT WAYNE – The news director for a local radio station was found in contempt of court Tuesday after he was found using a cellphone during the guilty plea hearing for admitted killer Michael Plumadore.

According to testimony Tuesday by Allen County Sheriff’s Department Sgt. Brian Sandberg, Dave Wheaton, news director of WOWO 1190 AM, had an Apple iPhone in his hand during the hearing Friday before Allen Superior Court Judge John Surbeck.

Sandberg said he and another officer saw Wheaton texting during the hearing. Sandberg confiscated the phone and issued Wheaton a ticket, ordering him to appear before Allen Superior Court Judge Fran Gull.

Cellphones and other electronic devices have been prohibited in the Allen County Courthouse and its satellite buildings since 2007. The ruling came after cellphone cameras were used to take pictures and videos of witnesses and jurors in a murder case.

Attorneys and court staff are exempt from the ruling if they have proper identification. Members of the media are included in the ban.

Under oath, Wheaton said he did not notice the multiple signs placed around the Courthouse announcing the ban.

He said he brought the phone in along with his recording equipment and had done so the few other times he’d been in the building.

“Candidly, I don’t believe you,” Gull said of Wheaton’s claims he did not see the signs.

Gull found Wheaton in contempt of court and ordered the phone destroyed. The phone is the property of WOWO’s parent company, Federated Media, and Gull allowed the company to remove the contents of the phone first.

She also said she was sending a copy of the ruling to the radio station as a reminder.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Ind. Trial Ct. Decisions

Vacancy on COA 2012 - Round One, Interview #6

This is Attorney Cara Wieneke's report on the sixth interview of Round 1

Ms. Brenda A. Roper, Indianapolis

In reponse to the question regarding what she most admires about the COA, she admires the fact that our system gives litigants a "second bite at the apple." She also admired the gender diversity on the Court.

She cited her teaching experience and volunteering activities as qualities she would bring to the Court.

In response to a question ftom the Chief Justice, Roper stated that her pursuit of an LLM degree was motivated by a desire to provide help in the elder law field.

In response to a question from the Chief Justice about her lack of jury trial experience, she cited her work as a chief bailiff in a trial court and her opportunity to observe several jury trials from an insider's perspective.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round One, Interview #5

This is Attorney Cara Wieneke's report on the fifth interview of Round 1

Ms. Abigail Lawlis Kuzma, Indianapolis

Ms. Kuzma most admires the COA's attempts to reach out to the community, including their excellent website, their efforts to draft plain-language pattern jury instructions, and their Appeals-on-Wheels program.

She mentioned her personal diversity (her farming background, her extensive travel within the state, and her experience as a stay-at-home mom and a working mom), as one attribute that makes her qualified for this position. She also noted her work at NCLC and the experience she gained working with people with limited means.

CJ Dickson asked Kuzma about pro se litigants and how to handle them at the COA. She believes that encouraging pro bono work so these litigants have lawyers is a good option.

Mr. McCashland asked what she did for fun. Kuzma said she reads at least 45 minutes each day, she knits, and she enjoys staying active. She lightheartedly mentioned that the last three books she read were The Hunger Games.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round One, Interview #4

This is Attorney Cara Wieneke's report on the fourth interview of Round 1

Mr. Bryce D. Owens, Pendleton

Mr. Owens cited his experience as a litigator in both criminal and civil cases as one quality that he believes makes him a good candidate for this position.

When asked by Ms. Northenor what he would bring to the COA, he stated that he would bring knowledge and experience handling a wide array of cases.

Mr. McDonald and CJ Dickson both asked questions about his political involvement, particularly with respect to Mr. Owens' wife's position as county commissioner. Owens indicated that he recognized that if he became a COA judge, he would have to refrain from any political involvement, including supporting his wife during her campaign.

The Commission members also asked several questions about his hobbies, including hiking the Appalachian Trail, staying on a submarine, and getting his pilot's license.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Yet more on: A first look at the candidates' submissions

How is another letter from an ILB reader:

Bravo! Tremendous work advocating for public access to the judicial nomination process. I have paid especially close attention to your coverage of the Supreme Court nomination process and have thoroughly read those applications. It is a sad day when the judiciary has decided not to ensure public access to the entire process because it would burden it administratively. It's a good thing you are there to hold their feet to the fire. Sadly, a decade ago, you would have had three or four newspapers beating down their doors for the same information, but alas, it is now a different era. Keep up the good work!

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Ind. Courts - "Court to set bond for Indianapolis woman in baby's death"

A brief AP story today begins:

A judge this week will consider how high to set bail for an Indianapolis woman charged with murder and feticide for eating rat poison while she was pregnant.

A bond hearing for 35-year-old Bei Bei Shuai will be held Friday in Marion County Superior Court.

Judge Sheila Carlisle refused to allow Shuai to be released from jail last June, but the Indiana Court of Appeals later ordered her to set bond for the Chinese immigrant. The Indiana Supreme Court last week allowed the appeals court ruling to stand.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Indiana Courts

Vacancy on COA 2012 - Round One, Interview #3

This is Attorney Cara Wieneke's report on the third interview of Round 1

Ms. Carol Nemeth Joven, Indianapolis

Joven began her interview by noting that the COA judges are leaders not only in the legal arena but in the community. She also mentioned that she admires the COA's ability to issue thorough and thoughtful opinions quickly.

She also stated that she personally admired Judge Baker for his sense of humor and Judge Barnes for his excellent advocacy when he was a prosecutor.

She described the COA as her "dream job." The email sent out from CJ Dickson to members of the Bar inspired her to apply.

Ms. Joven also mentioned that while her current caseload includes several plaintiffs' civil cases, much of her previous work involved defense work.

Finally, she cited her work on 286 appeals in state court as one of her qualities that makes her a good candidate for this position.

CJ Dickson asked her about the diverse political backgrounds of her family members. Her husband is a Republican, and her father is a longtime Democrat. She stated that she is not active in politics, so it would not have any influence on her as a COA judge, nor should it.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round One, Interview #2

This is Attorney Cara Wieneke's report on the second interview of Round 1

Mr. Jeffrey D. Wehmueller, Fishers

Responding to Chief Justice Dickson's question about what he most admires about the COA, Wehmueller cited to a recent mistrust citizens have of their government. He cited to complaints he often hears from people after they have appeared in court. He believes the COA is the forum where people who feel they have been mistreated can seek justice.

He cited his background and experience, his professionalism, and his patience as qualities that make him a suitable candidate for the position.

CJ Dickson asked whether we should create a system where pro se litigants on the civil side can obtain counsel in certain cases. Wehmueller responded that we should, as civil cases begin to get more and more complicated.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round One, Interview #1

This is Attorney Cara Wieneke's report on the first interview of Round 1

Hon. Cynthia J. Ayers, Marion Superior Court, Civil Div. 4

When asked who she most admired on the Court of Appeals, Judge Ayers began her comments by discussing generally the necessity for a COA judge to have trial court judicial experience.

She cited to her supervision of law students as bailiffs in her court as one example of her ability to supervise the law clerks she woulds have as a COA judge.

When responding to Ms. Northener's question about the difference between a trial court judge and a COA judge, Judge Ayers mentioned she has 2,000 open cases in Marion County, so she would welcome the ability to have the time to really stop and think about the legal issues involved in each case.

She also indicated that her entire organizational scheme focuses on case management and moving her docket, considering that delay is one criticism people have about courts. So she would be able to keep up with the pace of the COA.

Judge Ayers also discussed, in response to a question from Chief Justice Dickson, her active involvement in the mortgage foreclosure process.

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - More on: A first look at the candidates' submissions

Yesterday the ILB asked "Now that CJ Shepard is gone, is there no more openness and transparency?" Unlike the past three selections processes for the appellate courts, this time the applications have not been made available online, and the bulkier accompanying materials - transcripts, letters of recommendation, writing samples - have not been made available for public review.

Later yesterday it was learned that this was not a change in policy by the Court, but rather a failure to follow through. Regardless, as I wrote then, the result to the public is the same, and it does not reflect well on the Court. I expressed the hope that there was still time to post the applications online, but no one seems to have picked up the ball.

Until this morning the only information made available to the public on the candidates for the upcoming vacancy on the Court of Appeals has been the official list of applicants, their city or town, and in the case of a judge, their court.

The list this time, unlike similar announcements for past vacancies, did not include the following statement of intent to make information accessible to the public (showing the decision had been made at that point not to post the applications):

Abbreviated versions of the applications, without writing samples, transcripts or letters of recommendation, will be posted to the court’s website during the week of January 30th. The press and public are invited to review the complete applications on Monday, January 30th from 1:30 p.m. - 2:30 p.m. EST in the Supreme Court Law Library, room 316, at the State House in Indianapolis. Application photocopies can be made for 25 cents a page.

As related in yesterday morning's entry, however, the Court information officer, when tracked down, did say that the ILB could view the applications at 30 S. Meridian. So we took her up on the offer at the first opportunity, which was yesterday afternoon.

Reviewing the Applications

Recall ILB entries from the past where the applications and related materials had been neatly laid out for public review in the Supreme Court library? Those entries were accompanied by this type photo:

This time, there was none of that. Instead, Ms. Wieneke was greeted with a disheveled stack of papers inside a portable file cart, looking like this:

Everything was jumbled up in a pull cart. Ms. Wieneke spent about the first 20 minutes sorting. Nearly half of the applications were missing some attachments. And a couple had no attachments at all.

"Besides ages and their law school grades for those who had transcripts attached, I didn't know what more I could rely on. For example, X's application was the third one I reviewed. I thought it was odd he had only 2 recommendation letters, until I realized his other recommendation letters were attached to Ms. Y's paperclipped recommendation letters. Some of Ms. Z's were also attached to that same stack."

Why is it essential that the public have access to this information?

Two big reasons. First, this is the only opportunity the public will have to take a good look at the candidate who is ultimately named judge. Thereafter, the only public input is with the retention vote, the first one two years after selection, and thereafter every ten years.

Second, this is the public's only opportunity to assess how well the Indiana judicial nominating process works. Before 2010, appellate judges and justices would be selected and all we would see might be a list of names in the paper of "finalists selected" and "the Governor named ...". When the public can review the applications and get at least a glimpse through ILB reports of what went on in the formal interviews, they are in a better position to assess whether the process works.

Finally, here are some reactions from readers, all lawyers, to yesterday's reports:

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - A first look at the candidates' submissions

Plainfield criminal defense attorney Cara Wieneke has prepared for the ILB an introductory review of the materials submitted by the candidates for the upcoming vacancy on the Indiana Supreme Court.

As explained further in an upcoming ILB entry, this was a much more difficult task this time than in the past. Despite the obstacles, however, Ms. Wieneke was able to put together the abbreviated report which follows.

Introduction

During the process to fill the most recent Supreme Court vacancy, the complete submission from each applicant was available for viewing by the public in the Supreme Court library. The ILB’s coverage of those submissions focused on reviewing the information included in the submission that would not be posted online; namely, the law school transcripts and letters of recommendation.

Unfortunately, none of the submissions from this pool of applicants are currently available online. Also, as I began reviewing the submissions I realized that half of the copies provided for public review were missing pages of the application or attachments to the application. As expected, the recommendation letters for each candidate were separate from the application and accompanying attachments. Yet because of the missing pages from some of the application copies, there was no way for me to tell whether I had a copy of every recommendation letter submitted for each applicant, or whether copies of some of the letters were not included in the materials available for public review.

Thus, the two hours I spent reviewing the submission copies focused on the information that was, for the most part, available for each applicant (and would have been easily reviewed had the applications been posted online): age and law school grades. Letters of recommendation and writing samples could not be properly assessed.

Age of Applicants

Unlike the average age of the applicant pool for the most recent Supreme Court vacancy, which was 53, the average of this applicant pool was a little younger, at 49. The ages ranged from 41 to 64.

Bennett 41
Schumm 41
Pyle 42
Joven 42
Trent 42
Roper 44
Wehmueller 49
McMath 50
Altice 51
Teagle 52
Owens 52
Kuzma 55
Menges 61
Ayers 64

Law School Grades/Class Rank

One of the questions on the application requested information about the applicant’s degree and class rank at each law school and post-J.D. program attended. Applicants were also requested to attach a copy of their transcripts to the application. Unfortunately, 5 of the 14 copies provided for public review were missing either the page that included the answer to this question or a copy of the attached transcript. So some of the information included on the following table I pulled from the data gathered by Joel Schumm during his review of the applications submitted for the Supreme Court vacancy earlier this year, in cases where the same applicant was now applying for the Court of Appeals.

>
Schumm IU-McKinney 3.55 Magna cum laude Top 10%
Joven IU-Mauer 3.39 Cum laude
Menges Univ. of Tulsa 3.2 ---
Trent* IU-McKinney 3.11 Top 25%
Owens IU-? 3.08 ---
McMath* IU-Mauer 2.917 ---
Pyle IU-Mauer 2.76 ---
Kuzma IU-Mauer 2.7 Top 34%
Altice* UMKC 2.731 ---
Ayers* IU-McKinney 2.69 ---
Roper IU-McKinney 2.32 "Low 25%"
Altice UMKC 2.731 ---
Bennett Univ. of Minnesota non-traditional GPA (12.477) ---
Teagle Valparaiso non-traditional GPA (79.477) ---
Wehmueller Valparaiso non-traditional GPA (71.566) 87/90

Posted by Marcia Oddi on Wednesday, May 16, 2012
Posted to Vacancy on COA 2012

Tuesday, May 15, 2012

Courts - "Acting Indiana Chief Justice Dickson picked as state high court's 1st new leader in 25 years"

Charles Wilson of the AP reports this afternoon:

INDIANAPOLIS — A panel voted Tuesday to make longtime Justice Brent Dickson Indiana's first new chief justice in 25 years after other justices said he was suited to bring stability to the state's judicial system amid the most turnover the Supreme Court has seen in decades.

Dickson, 70, is the longest-serving current member of the five-member Supreme Court and has been the acting chief justice since Randall Shepard retired in March.

Three of the other four justices told the Indiana Judicial Nominating Commission they supported Dickson taking over as chief justice. The fourth, Frank Sullivan, who is leaving the court to take a teaching position this fall, didn't address the panel.

Dickson will be leading a court in transition since it is expected this fall to get its third new justice in less than two years after no turnover for more than a decade. It could even get a fourth new member, since Dickson said Justice Robert Rucker hasn't decided whether to seek another 10-year term this fall.

Rucker said that with so much change, the court needed some stability.

"It's my view that with so much uncertainty ... Justice Dickson as acting chief justice has been that steady hand," Rucker said. The court's newest members — Mark Massa and Steven David, both appointed by Gov. Mitch Daniels — also recommended Dickson for the top job.

Massa said the appointment of three new justices in 24 months had brought "unprecedented change" and made continuity vital.

"To me, the commission made the right and natural choice. Brent Dickson is universally respected and has earned the complete trust of his colleagues and lawyers statewide. Any other selection would have been a surprise," Daniels said in a statement.

All three justices stressed that the chief justice does much more than write legal opinions and build consensus on the court — he also is the chief administrator of the state's court system, overseeing five judicial agencies and a myriad of initiatives ranging from programs to help attorneys deal with substance abuse or other personal crises to a long-term move to computerize the state courts and put their business online. Dickson, they said, was the best person for the job.

But Dickson, who has served on the court since 1986, told reporters after the vote that he hadn't initially wanted the position until he was talked into it by judges and other government officials.

"There was a growing number of voices that persuaded me to let myself be considered. We're facing an immense change in personnel on the court and our employees needed to know that stability was going to reign," Dickson said.

"They asked me to at least be willing to serve for a period of time, and I said OK," he added.

Dickson said he will reach the mandatory retirement age of 75 in July 2016, before his five-year term as chief justice expires, but he wasn't sure if he would continue to serve as chief justice until then. "It kind of depends on a lot of personal issues, the issues of filling out the court, getting the vacancies filled. ... It will be sometime between now and July of 2016," he said. * * *

If Rucker steps down this summer, Daniels could appoint a fourth justice, matching the number appointed by Bayh two decades ago, and shifting the court to entirely Republican appointees.

But justices said Tuesday that politics had no place on the court. "We've never had a D versus R debate," Rucker said. "We've never had anyone come in with an agenda."

Dickson said it was especially important for the chief justice to avoid partisan politics so he could work with both parties in the Statehouse. "The chief justice must be seen as politically neutral," he said.

Posted by Marcia Oddi on Tuesday, May 15, 2012
Posted to Indiana Courts

Ind. Courts- Commission Selects Brent E. Dickson as Chief Justice of Indiana

From the Court's news release:

The Indiana Judicial Nominating Commission voted to appoint Justice Brent E. Dickson as the Chief Justice of Indiana. The Commission vote was unanimous and the appointment is effective immediately. Justice Mark Massa, Justice Steven David and Justice Robert Rucker each spoke to the Commission and urged them to appoint Justice Dickson as Chief Justice.

Chief Justice Dickson said, “I am deeply honored by the Commission's confidence in me and by my fellow justices' kind words and support urging my selection. I welcome the opportunity to serve the citizens of Indiana, our dedicated judicial officers, and the staffs of our various court agencies.” * * *

As in the past, all current members of the Supreme Court were invited to speak to the Commission about the qualities and attributes important in a Chief Justice. The meeting was open to the public and press. Justice Mark Massa told the Commission, “Justice Dickson is a consensus builder, a leader and thoughtful. He is a marvelous choice for Chief Justice.” The sentiments were echoed by Justice Robert Rucker who explained, “Over the last few weeks Justice Dickson has been a steady hand and done a magnificent job. We could not ask for a better person to serve.” Justice Steve David pointed to his colleague as “a person with humility who is honest and allows us to set a great example for the bench and the bar.”

After the public meeting, the Commission went into executive session for discussion. Following the executive session, the Commission convened in a public session and voted unanimously on Brent Dickson as Indiana’s Chief Justice. Chief Justice Dickson accepted the position and said, “The Indiana judiciary is among the most respected in the nation. While we are in the midst of sweeping changes in Supreme Court justices, my colleagues and I will do our best to pursue the tradition of excellence and to provide stability as we continue to seek fair and impartial justice for all.”

Posted by Marcia Oddi on Tuesday, May 15, 2012
Posted to Indiana Courts

Law - Several interesting articles today

Michelle Olsen of @AppellateDaily has lined up several interesting items today.

"Social Media in the Courtroom," a law review article by Jenna Rozelle, a first-year at the U of Chicago Law. She looks at the decision to ban tweeting in the Balfour trial. (Recall these posts re Cook Co. judge banning reporters from tweeting)

From Columbia Law School, "Seventh Circuit Court of Appeals Judge and Supreme Court Expert Linda Greenhouse Discuss How Judges and Justices Decide When—and When Not—to Write Dissents."

Posted by Marcia Oddi on Tuesday, May 15, 2012
Posted to General Law Related

Vacancy on COA 2012 - More on: Now that CJ Shepard is gone, is there no more openness and transparency?

Thie ILB has received several responses to its post earlier today. I may compile and post them, without attribution, later today. It is not too late to send your reaction.

What I've learned within the last hour is that this was not a change in policy by the Court. That is the good news.

The bad news is, it was simply a decision from the Court information office that it would take too much time to post the applications! That is the bad news - for sure, and does not reflect well.

But, good news again, there is still time to remedy this very poor decision. All applicants were told to submit an electronic version, and I suspect the redactions will take about a minute or less for each application. Total time = 15 minutes max.

Perhaps someone from the COA office can volunteer to help. (I would volunteer, or better still, Ms. Wieneke, who is already over there, unless there is an issue about access to the unredacted documents - the information to be deleted, as I recall, is home address, SS#, family members.)

Posted by Marcia Oddi on Tuesday, May 15, 2012
Posted to Vacancy on COA 2012

Ind. Courts - Selecting the next Chief Justice of Indiana

Attorney Cara Wieneke of Plainfield is attending the Judicial Nominating Commission this morning and sending back occasional reports. Refresh your browser periodically to see them all.

The meeting convened at 10:00 AM.

First report from Ms. Wieneke:
Meeting began with exec session for several minutes. Sullivan is not interviewing. Beginning with Massa.

ILB: I'll also include some tweets from other reporters at the meeting.

Jim Shella ‏ @shellawish
I'm at the Judicial Nominating Commission selection of a Chief Justice. 1st one in 25 years.

Jim Shella ‏ @shellawish
Justice Mark Massa say Brent Dickson should become CJ.

Niki Kelly ‏ @nkellyatJG
Let the coronation for Justice Brent Dickson begin. Justice Mark Massa says he's the one for the job of chief justice.

Jim Shella ‏ @shellawish
4 justices each get 20 minutes to spell out expectations for the next CJ.

Ms. Wieneke: Justice Massa began by endorsing Acting CJ Dickson as the "one person" who truly stands out on the Court as CJ. Justice Massa cited Dickson's lengthy service and great "institutional memory." Justice Massa also mentioned several times the importance of the "ceremonial duties" the CJ is required to perform, and how well CJ Dickson has done so far in performing those duties.

Justice Massa also mentioned the "unprecedented change" the Court is currently undergoing, three new justices in 24 months. He mentioned this as another reason why the Court should be led by someone with Dickson's years of service: to provide continuity on the Court.

Jim Shella ‏ @shellawish

Justice Steven David up now. David tells commission that Dickson is what they are looking for as CJ.

Niki Kelly ‏ @nkellyatJG

Justice Steve David also on board for Dickson as the next chief justice.

ILB: Well, that should just about seal it!

Ms. Wieneke: When Justice Dickson asked Justice David how he would describe the chief justice and the important attributes he must have, Justice David lightheartedly looked at Dickson, as if he was going to begin describing Dickson himself.

Justice David commented that it is necessary for the CJ to lead by consensus. He mentioned that the Court currently works very well together. He also mentioned, like Massa did, that continuity on the Court is important.

And just like Justice Massa, at the beginning of his interview he endorsed Acting CJ Dickson as CJ.

Speaking generally, Justice David indicated that a person's prior leadership opportunities is an important attribute to consider. How often did someone step up and take a leadership role? He also included humility, honesty, and passion as important attributes.

He also mentioned the importance of the CJ's role in understanding the unique roled of each of the 3 branches of governmemt and how they work with each other.

Ms. Northenor asked both Justice David and Justice Massa about who will carry Justice Sullivan's role of working with county clerks to oversee the implementation of JTAC's various technological advancements. Justice David answered that the responsibility will likely be handled by the other justices and their supporting staff.

Jim Shella ‏ @shellawish

Justice Robert Rucker up now. Rucker says chief justice needs to be visionary. Justice Rucker says Justice Dickson has done "magnificent job."

Jim Shella ‏ @shellawish
Rucker says Dickson is the right man for the CJ job.

Ms. Wieneke: When discussing what attributes are important in the next chief justice, Justice Rucker began by discussing how most people view what the Court does: deciding opinions, etc. He views the Court as the Board of Directors of the entire judiciary. And he views the Chief Justice as the Chairman of the Board. So we expect vision, leadership, guidance in moving this branch of government along.

He noted the significant challenges coming up, including access to justice issues for people with limited means, etc. So the Court needs a good leader and a good communicator for those challenges.

He believes all of the justices are suited to that task. But because of the changing times and amount of uncertainty and transition, Dickson has been that "steady hand" and has done a "magnificent" job.

Justice Rucker noted the substantial amount of time each justice spends on administrative tasks. He estimated that he spends about 2 days per week on opinion writing and 3 days per week on administrative tasks.

When asked by Ms. Kitchell what the Commission should consider when choosing Justice Sullivan's replacement, Justice Rucker asked the Commission to consider the collegiality on the Court. He stated that no one has been chosen for the Court who has an agenda. He asked them to consider one's openmindness and passion for the law. And to consider the culture of the Court and to preserve it.

Justice Rucker also noted that diversity was important, citing to the mix of experiences and views that have previously been on the Court.

And he asked that the Commission to consider the fact that Indiana is one of only 4 states without a woman on the Court.

Ms. Northenor commented that Justice Sullivan's budget experience might be helpful for the next justice to possess. Justice Rucker responded that a passion for the work Justice Sullivan did with advances in technology was also necessary.

Jim Shella ‏ @shellawish

Justice Dickson up now with prepared remarks. Dickson indicates he is a candidate for chief justice.

Here is a photo, taken by the Court information office. That is CJ Dickson, sitting at the head of the table, by virtue of his position as chair of the JNC (the other 2 women and 4 men at the table are the attorney and lay members).

Ms. Wieneke: Justice Dickson began by noting that this process is particularly important now for the replacement of Justice Sullivan.

He also commented that Justice Rucker has not yet decided whether he will place himself up for retention, but he will decide by mid-July.

When asked what attributes are important in a chief justice, he indicated the following, among others:

Collegiality- respectful of others' views
Willingness to share and delegate responsibilities
organizational management education and experience
Sound leadership qualities
A role model for attorney civility
Comfortable with the media
An innovator
Experience and comfort with technology
Ability to balance life and work
Absence of strong individual partisanship - need to be seen as a political neutral

Responding to Ms. Northener's question about who will carry on Justice Sullivan's passion for implementing JTAC's initiatives, Justice Dickson indicated that the Court is currently working on filling the void that will be left.

Jim Shella ‏ @shellawish
Judicial nominating commission enters executive session to discuss chief justice selection. Public vote follows.

Ms. Wieneke: The Commission has chosen Acting Chief Justice Dickson as the new Chief Justice. The vote was unanimous (Dickson did not vote).

This concludes the ILB coverage.

Posted by Marcia Oddi on Tuesday, May 15, 2012
Posted to Indiana Courts

Vacancy on COA 2012 - Now that CJ Shepard is gone, is there no more openness and transparency?

In the three last appellate judicial selection processes (for both Supreme Court and Tax Court vacancies) the candidates' applications were made available online for public review well in advance of the interviews. (See ILB list here)

In addition, a table was laid out in the Supreme Court library, allowing the press and others interested to review and if desired, copy, the other information submitted: recommendations, transcripts, writing samples. As a result, the ILB was able to compile entries like this in 2010 and this in 2012.

This time, the Court has done none of that. Without informing anyone.

I tried to contract Kathryn Dolan, the Court information officer, several times last week about when the applications would be posted, as they were late even then, but no response.

Yesterday I called - no response. So did the attorney who is covering the interviews for the ILB this time and who needed to do her preparatory work. No response to her message either. Late yesterday afternoon I called someone there higher up, and finally got an answer from the information officer an hour later.

Ms. Dolan said the applications were not online. Period. She said I could review them in person, at 30 S. Meridian. She would find "a comfortable spot for me to look over the applications."

Apparently if any of the rest of you are interested in reviewing these public documents before the fifteen COA interviews tomorrow (Wednesday), this is the only way to do it. Today, of course, is already very busy, it is the meeting of the Judicial Nominating Commission to select a Chief Justice.

This ILB post is likely the only notice you will receive of the change from the policy of openness and transparency instituted in 2010 by Chief Justice Shepard to comply with IC 33-27-3-2(d)(1). How quickly and quietly this "openness and transparency" can slip away ...

One more thing. I attended a seminar on judicial selection a few weeks ago. One of the speakers was James Bopp, the Indiana attorney with a national practice who has brought challenges to the judicial selection process in a number of states. He said then that it is Indiana's openness in the selection process that has helped prevent the battles many of the other "Missouri plan" states are now facing. (See, eg. ILB entries about Tennessee and Missouri itself.)

Posted by Marcia Oddi on Tuesday, May 15, 2012
Posted to Vacancy on COA 2012

Monday, May 14, 2012

Ind. Courts- "Court observers see Indiana's acting chief justice as leading candidate for permanent post"

Charles Wilson of the AP has a long story this afternoon about tomorrow's upcoming selection by the Judicial Nominating Commission of a new Chief Justice of Indiana. Worth reading in full!

Posted by Marcia Oddi on Monday, May 14, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Dana L. Lewis, Jr. v. State of Indiana , an 11-page opinion, Judge Bradford writes:

Appellant-Defendant Dana L. Lewis, Jr. appeals from the trial court’s denial of his motion to suppress statements he made to Jennings County Sheriff’s Sergeant Karen McCoy during a police interview regarding an alleged sex crime. Lewis argues that the statements were obtained in violation of his Fifth Amendment right to counsel, which he claims he unequivocally and unambiguously invoked by asking, “Can I get a lawyer?”. Lewis contends that this question was sufficient, both standing alone and in light of the totality of the circumstances, to invoke his Fifth Amendment right. The State argues that Lewis was not entitled the right to counsel because his interview with Sergeant McCoy did not constitute a custodial interrogation. We reverse and remand with instructions. * * *

Pursuant to the stipulation entered into by the parties below that Lewis reasonably believed that he was in custody, we will not revisit the issue on appeal. Moreover, the trial court erred in denying Lewis’s motion to suppress the statements he made to Sergeant McCoy because Lewis unambiguously and unequivocally invoked his Fifth Amendment right to counsel by asking, “Can I get a lawyer?” We therefore remand with instructions to grant Lewis’s motion to suppress statements made during the interview with Sergeant McCoy and for further proceedings.

NFP civil opinions today (4):

In the Matter of the Term. of the Parent-Child Rel. of F.R. and Z.R.; and P.R. v. The Indiana Dept. of Child Services and Child Advocates, Inc. (NFP)

In Re the Marriage of R.B. and K.S. (NFP)

Vinod C. Gupta v. City of Terre Haute, Department of Redevelopment (NFP)

A.F. v. J.F. (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, May 14, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 11, 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, May11, 2012. It is two pages (and 16 cases) long.

One transfer was granted last week:

[More] Denied transfers include Bei Bei Shuai v. State of Indiana (ILB here) and Augustus Mendenhall v. State of Indiana (Rep. DeLaney attacker).

Posted by Marcia Oddi on Monday, May 14, 2012
Posted to Indiana Transfer Lists

Courts - "Practitioners and justices say it is the rare oral argument that wins or loses a case"

"Are Oral Arguments Worth Arguing About?" is the title of an interesting Adam Liptak column from the May 5th NY Times. From near the end of the long article:

Oral arguments are in any event far less important than the written briefs.

“Of the two components of the presentation of a case, the brief is ever so much more important,” Justice Ruth Bader Ginsburg told Mr. Garner. “It’s what we start with; it’s what we go back to.”

It was here that Mr. Verrilli and other government lawyers may have fallen short, Ross Guberman, the author of “Point Made: How to Write Like the Nation’s Top Advocates,” told Scotusblog.

A sidebar to the story references three "game-changing briefs." The cases will be familiar to most practitioners.

Posted by Marcia Oddi on Monday, May 14, 2012
Posted to Courts in general

Ind. Law - "Indiana's child-support law to change in July"

Some quotes from the Muncie Star-Press, this story by Douglas Walker:

MUNCIE -- Effective July 1, the obligation for non-custodial parents to pay child support in Indiana will end with their offspring's 19th birthday.

While support payers have long had the right to have a child in their late teens or early 20s declared emancipated, the presumptive age for the end of support payments has been the child's 21st birthday. * * *

Under the revised law, "children" who are college-bound will retain the ability to seek court-ordered financial assistance with those expenses from their parents -- provided the parents aren't married to one another.

In Indiana, the children of married parents have no such right to seek court-ordered support for their education expenses.

Bryan acknowledged the fairness of that scenario, making divorced or never-married parents liable for expenses that their married counterparts aren't legally responsible for, could be questioned. He said he was unaware of any related legal challenges, however.

Under the new law, college-bound offspring receiving support under existing court orders have until their 21st birthdays to petition for additional education-related assistance from their parents.

Children who receive support under orders issued after July 1, however, will have to make such requests by their 19th birthdays.

Posted by Marcia Oddi on Monday, May 14, 2012
Posted to Indiana Law

Ind. Gov't. - "When the buck stops: For next governor, it's end of the line for Toll Road lease money"

Here is Niki Kelly's long story from the Sunday Fort Wayne Journal Gazette. Here is how it begins:

INDIANAPOLIS – When the next governor takes office in January, he will have just a few months before the money from the Indiana Toll Road lease is effectively gone.

Some of the $3.8 billion will still be in the bank earning interest, but it all will be virtually awarded, via contract, for major ongoing highway projects finishing up in the next two years.

That leaves the new governor – likely either Republican Mike Pence or Democrat John Gregg – with a cliff in highway funding to deal with, and few options on the table.

Here is how it concludes:
Jack Basso – director of Program Finance and Management at the American Association of State Highway and Transportation Officials – said Indiana will soon find itself in the same financial fix as other states.

"The next governor is going to have to face the reality that the money isn't going to materialize out of the air," he said. "There really aren't other options. The two big revenue generators for transportation are the fuel tax and vehicle registration fees.

"There is no free ride."

Posted by Marcia Oddi on Monday, May 14, 2012
Posted to Indiana Government

Ind. Courts - "Special court programs handle veterans in trouble"

Harold J. Adams has this long story in today's Louisville Courier Journal about Veterans Court, which are:

... part of a national movement to create special courts for veterans, who may be suffering from service-related maladies such as Post Traumatic Stress Disorder.

Across the nation, there are more than 80 such courts, according to the National Association of Drug Court Professionals, which runs Justice for Vets: The National Clearinghouse for Veterans Treatment Courts. The group provides training to help get the courts started.

One began this year in Floyd County Superior Court in New Albany, and another is planned in Louisville, which would be the first in Kentucky.

Modeled after existing drug courts, the veterans courts provide a direct connection to such veterans benefits as counseling. * * *

Floyd County Superior Court Judge Maria Granger, who launched Indiana’s third certified veterans court this year, justifies the special attention as a debt owed to veterans. “They write the blank checks up to and including life,” she said. “We as Americans, we all deposit it into our freedom accounts.”

She describes veterans court “as emphasizing therapeutic justice” for people with service-related disabilities.

“It could be post-traumatic stress, it could be depression, it could be alcohol abuse or drug addiction, it could be traumatic brain injury. It could be any of those type of things,” said Granger, whose program got its first participant in mid-February.

Once an offender is admitted to a veterans court program, the usual adversarial nature of prosecution and defense goes away and is replaced with both sides joining counselors and treatment professionals in an effort to straighten out the veteran’s life.

Posted by Marcia Oddi on Monday, May 14, 2012
Posted to Indiana Courts

Ind. Courts - "New Indiana Supreme Court Chief Justice To Be Chosen Tuesday"

Stan Jastrzebski of Indiana Public Media reports on the upcoming meeting of the Judicial Nominating Commission tomorrow where a new Chief Justice will be selected. Some quotes:

IUPUI law professor Joel Schumm says communication and managements skills are among the qualifications the Commission will likely consider.

“Collegiality, ability to get along with other people is important as well, I think and under Chief Justice Shepard it was a very friendly, collegial Court and I’m sure the Commission will want to be sure that continues with the new chief justice,” Schumm says.

Schumm says interim Chief Justice Brent Dickson is a strong candidate – though he’ll have to retire before his five-year term would be complete. The state mandates retirement at age 75. Schumm says the other likely choice would be Justice Steven David, who’s been on the Court for a couple of years.

“[David] has been very active in giving speeches and being involved and talking to different groups of people and I think he would be a younger person that would be well respected in leading the Court,” he says.

Schumm says seniority doesn’t play much of a role in the choice. Chief Justice Shepard had only been on the Court for about two years when he was chosen.

From a brief editorial today in the Fort Wayne Journal Gazette:
The commission chooses the court’s leader from among the five justices, though Justice Frank Sullivan will not be selected because he, too, is leaving the court later this year.

And it seems unlikely the commission would select Justice Brent Dickson, 70, because he heads the commission. That leaves the newest justice, Mark Massa; Stephen David, who joined the court in 2010; and Robert Rucker, a justice since 1999.

The commission will interview each justice, including those not interested in the top appointment, about qualities that are important in the chief justice. Afterward, the commission will meet in secret to discuss the appointment, then vote in public.

ILB: I'm putting my money on Justice Dickson!

See also this ILB entry from May 2.

Posted by Marcia Oddi on Monday, May 14, 2012
Posted to Indiana Courts

Vacancy on COA 2012 - Additional information from the ILB about the upcoming Court of Appeals selection process

New Category: The ILB has created a new category so that readers may easy access all entries on the topic: Vacancy on COA 2012.

Judge Darden Vacancy and Who May Apply: Here is a the main webpage about the judges of the Court of Appeals. It is Judge Carr L. Darden who is retiring this summer. Judge Darden represents the COA 4th District, which encompasses the entire state insofar as retention is concerned. However, as required by statute to maintain geographical balance, each of the three judges for the 4th District represents one of the original three districts. As a result, the candidates to fill Judge Darden's vacancy must be Indiana residents who reside in the District Two. Thus you will not see any names from the northern or southern part of the state this time

Candidate Lists: As noted in this May 10th post, seven of this month's COA candidates were applicants for vacancies on the Supreme Court in 2010, 2012 or both. Here are the Supreme Court candidate lists for 2010 and 2012. (None of the applicants for the Tax Court in 2010 have applied for the other vacancies.)

Comparison of timetables for the current and other recent selection processes:

2012 Supreme Court (2nd 2012 vacancy):

2012 Court of Appeals: 2012 Supreme Court: 2010 Tax Court: 2010 Supreme Court:

Posted by Marcia Oddi on Monday, May 14, 2012
Posted to Vacancy on COA 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, May 13, 2012:

From Saturday, May 12th, 2012:

From Friday afternoon, May 11th, 2012:

Posted by Marcia Oddi on Monday, May 14, 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 5/14/12):

Monday, May 14th

Next week's oral arguments before the Supreme Court (week of 5/21/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/14/12):

Thursday, May 17th

Next week's oral arguments before the Court of Appeals (week of 5/21/12):

Monday, May 21st

Wednesday, May 23rd

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, May 14, 2012
Posted to Upcoming Oral Arguments

Sunday, May 13, 2012

Law - "Same-Sex Marriages: Legal Issues"

Here is the Congressional Research Service's 35-page, May 9, 2012 report by legislative attorney Alison M. Smith, titled "Same-Sex Marriages: Legal Issues."

Posted by Marcia Oddi on Sunday, May 13, 2012
Posted to General Law Related

Ind. Gov't. - "With four female candidates, Indiana Congressional delegation could see gender shakeup"

Good story today by Tom Coyle of the AP. It begins:

SOUTH BEND — One by one, seven women attending a training session to get advice on how to run a political campaign stood up on a cold afternoon to introduce themselves, telling organizers the offices they were seeking.

Two were running for county council. One for county commission. The others were seeking election as coroner, treasurer and school board member. Then came Shelli Yoder, a former Miss Indiana and associate director of professional development for Indiana University’s business school, who announced she was running for Congress. The result was stunned silence.

“We have not had a woman from here run for Congress ever, I think,” said Regina Moore, a founding mother of the Monroe County Democratic Women’s Caucus that organized the February event.

Indiana has had only five female members of Congress in its history, none at the same time, and is currently among 16 states without a female serving in either the House or Senate. That could change this fall, though. Yoder and three other women won their parties’ nominations in Tuesday night’s primary, raising the possibility of a gender shake-up in the state’s nine-member all-male House delegation.

“I think it’s important that there are four women, two Republicans and two Democrats, because women are very much underrepresented in Congress,” said former state Rep. Jackie Walorski, the Republican nominee for the 2nd District seat in northern Indiana. “I think it’s a good sign. I think women have made positive differences on both sides.”

Posted by Marcia Oddi on Sunday, May 13, 2012
Posted to Indiana Government

Ind. Gov't. - "Indiana has an impressive army of ALEC soldiers"

That is a quote from this long centerpiece opinion piece today in the Fort Wayne Journal Gazette, written by Karen Francisco. (Here is a long list of earlier ILB entries on ALEC, including most recently, this one headed "Indiana law exempts ALEC from lobbyist disclosure requirements.") A sample:

The Washington-based organization is made up of two primary groups: conservative state lawmakers from across the country and corporate representatives and groups such as the National Rifle Association. * * *

Eight task forces, directed by a public chair and a private chair, are divided into subject areas covering virtually every type of legislation. In closed sessions, they supposedly hammer out bills to advance their common aims of free-market, limited-government solutions.

“The engine of ALEC is these task forces,” Fischer said. “This is where the work gets done.”

But how much clout a citizen-lawmaker might have within a room full of industry experts is questionable.

The private chair of the Commerce, Insurance and Economic Development task force, for example, is an attorney for State Farm insurance.

The education panel private chair is vice president of Connections Academy, a company that operates cyber-charter schools and sells online education programs. Among the panel’s model bills? A one-to-one reading improvement act requiring schools to electronically align a school’s instructional resources to state standards – coincidentally, a service offered by Connections Academy.

In the last legislative session, ALEC member Sen. Jim Banks, a Columbia City Republican, filed a bill requiring all Indiana students to complete an online course before graduation. His bill passed the Senate but died in the House after some lawmakers began questioning the load of mandates placed on schools.

Education bills approved by Indiana lawmakers in the 2011 session almost mirror ALEC’s directory of model legislation. There’s an early graduation scholarship incentive (the Mitch Daniels Early Graduation Scholarship); a statewide charter school authorizer (The Indiana Charter Schools Board); a teacher quality and recognition act (Indiana’s Excellence for Performance Awards For Teachers) and more.

Then there’s ALEC’s model Right to Work Act, delivered this year as Indiana House Enrolled Act 1001. The proponents’ leading “expert” on right-to-work laws? Richard Vedder, an Ohio University economist who also serves on ALEC’s board of scholars.

The story includes a side-bar listing at least some Indiana's ALEC members.

Posted by Marcia Oddi on Sunday, May 13, 2012
Posted to Indiana Government

Environment - More on: "Biomass invades, threatens Southern Indiana"

Updating this ILB entry from Nov. 27, 2010, Linda Greene of The Bloomington Alternative has "the first of a three-part series exploring the victories citizen action has achieved against biomass combustors planned for Crawford and Scott counties and the ongoing struggle against another in Dubois County." The headline: "Collective, community effort trumps polluters, for now: Grassroots movements stop biomass incinerators in two counties, one still at risk."

Posted by Marcia Oddi on Sunday, May 13, 2012
Posted to Environment

Courts - More on "In Iowa, Voters Oust Judges Over Marriage Issue"

Updating this ILB entry from Nov. 3, 2010, reporting that the three Iowa Supreme Court justices up for retention who had joined an opinion allowing same-sex marriage in Iowa had been voted out, this long story today in the DesMoines Register, by Jeff Eckhoff, reports that:

[Iowa Supreme Court Justice David Wiggins] this fall will become the fourth member of Iowa’s highest court to stand for a retention vote since the court issued a landmark 2009 decision legalizing same-sex marriage in the state. The unanimous Varnum v. Brien decision, which outraged social conservatives, made Iowa the first Midwestern state to sanction gay marriage. * * *

Same-sex marriage was already expected to be a white-hot issue in this fall’s Iowa Statehouse races. Same-sex marriage opponents have vowed to take control of the Senate, where Democrats now hold a majority and party leadership has blocked a proposed constitutional amendment to ban same-sex marriage.

After the 2009 ruling, Iowa voters in November 2010 denied three justices the opportunity to remain on the bench. David Baker, Michael Streit and Marsha Ternus became the first Iowa Supreme Court justices not retained by voters since Iowa adopted a merit selection and retention system for judges in 1962.

The three former justices gained national recognition last week when they accepted the John F. Kennedy Profile in Courage award at the Kennedy presidential library in Boston. Bob Vander Plaats, who led the campaign to oust them, called the award “a slap in the face to the people of Iowa” and an incentive to lead more campaigns to boot the other justices who joined the ruling.

Posted by Marcia Oddi on Sunday, May 13, 2012
Posted to Courts in general

Stage Collapse - "Ind. fair makes management changes after collapse" [Updated]

Charles Wilson of the AP has this comprehensive story on the changes announced this week in state fair management. It begins:

INDIANAPOLIS (AP) — The Indiana State Fair Commission on Thursday announced management changes spurred by last summer's deadly stage rigging collapse, including the retirement of a longtime employee who was noted in a report about the accident.

The other moves include the hiring of a new chief operating officer and a new director of safety and security for the fairgrounds. They follow commission members' vote last month to make management changes recommended by consultants who investigated the Aug. 13 disaster that killed seven people and injured dozens more.

Those consultants found that the stage rigging that toppled onto a crowd awaiting a concert by the country duo Sugarland didn't meet industry safety standards and that the fair's emergency plan was inadequate and resulted in confusion about who was in charge.

Officials on Thursday quietly announced the retirement of fairgrounds facilities manager Dave Hummel, who was noted in a report that criticized confusion among fair officials over their responsibilities. A news release said Hummel's retirement was "part of restructuring state fair staff."

As facilities manager, Hummel was in charge of building maintenance and event services such as concessions, admissions and parking, commission spokeswoman Stephanie McFarland said. Those duties would have included the grandstand where the Sugarland concert was to be held.

[Updated at 5:48 PM] The IndyStar Sunday editorial is headed "Indiana State Fair improvements shouldn't have waited for tragedy." Some quotes:
In essence, there was no organization on Aug. 13, the outside auditors declared in their scathing reports: no chain of command for deciding on such testy questions as when to cancel a show, no evacuation plan for limited or general emergencies, and no prior inspection of stage rigging that turned out to be incapable of withstanding the winds of that night's storm.

As litigation has rumbled forth, government has taken action on a variety of fronts.

The legislature filled a hole in the law which allowed temporary structures on state property to go without inspection or engineering specifications. It more than doubled the long-outdated fixed sum in the victims' compensation fund.

The Indiana Occupational Safety and Health Administration, meanwhile, fined three entities over the disaster, including the fair commission, which paid its $6,300 penalty.

Finally, Gov. Mitch Daniels called for a review of all temporary outdoor structures by the state Department of Homeland Security and raised the prospect of a shakeup, possibly including firings, at the State Fair.

All of which prompts the exclamation "At last" -- and the question "What were they waiting for?"

The corrective steps are substantive and commendable. They also should have been taken years ago; models for supervision and inspection exist in many other states, and in Indianapolis city government, for that matter.

The Daniels administration, in short, should have known better; but at the same time, it was following venerable bipartisan tradition of light state regulation of activity affecting public health, safety and pocketbooks, directly and indirectly. As so often happens, penny-wise in this case turned out to be pound-foolish.

Posted by Marcia Oddi on Sunday, May 13, 2012
Posted to Stage Collapse

Saturday, May 12, 2012

Ind. Courts - "Indiana high court expected to stay business friendly"

An AP story today in the Louisville Courier Journal. Worth reading.

Posted by Marcia Oddi on Saturday, May 12, 2012
Posted to Indiana Courts

Friday, May 11, 2012

Ind. Courts - More on "IndyCar tabs retired Indiana Supreme Court justice to hear Chevrolet appeal"

Updating this ILB entry from May 3rd, MotorAuthority.com is reporting this evening "INDYCAR Turbo Decision Upheld, Honda Prevails." Anne Proffit's story begins:

Retired Indiana Supreme Court Justice Theodore R. Boehm heard all sides of the INDYCAR Turbo-Gate story on Wednesday, listening to an appeal of a decision handed down by a three-part panel that denied General Motors' Chevrolet brand's objection to Honda Performance Development's use of a Borg Warner 0.71 A/R compressor cover for their engine, which uses a single turbocharger. Both Chevrolet and Lotus engines engaged in the IZOD IndyCar Series use twin Borg Warner turbochargers.

The jurist took nearly two days to release his decision, which denied the appeal brought forth by General Motors. He conducted the appeal hearing on May 9 in Indianapolis; pursuant to Rule 13.11 in the IZOD IndyCar Series rulebook, the appeal decision is final and binding.

Posted by Marcia Oddi on Friday, May 11, 2012
Posted to Indiana Courts

Ind. Decisions - More on: Supreme Court denies Bei Bei Shuai transfer petition

The Supreme Court has let the Court of Appeals opinion stand in the Bei Bei Shuai case. Updating this entry from earlier today, here is a much longer version of Charles Wilson's AP report, with reactions. I'm told there is another version, quoting Dr. David Orentlicher, who wrote one of the amicus briefs - I'll watch for it. From the current version:

The Indiana Supreme Court on Friday declined to drop murder and feticide charges against a woman who ate rat poison while she was pregnant in a case that medical and women's rights groups warn could have larger repercussions.

However, the court's unanimous ruling does allow Bei Bei Shuai to be released on bond, which is rare in murder cases. * * *

Defense attorneys argued in court documents filed March 9 that prosecuting a woman based on the outcome of her pregnancy violates constitutional rights to due process and equal treatment and is cruel and unusual punishment.

Shuai, 34, lost her bid to have the charges against her dropped when Indiana's highest court declined to hear her appeal. Friday's order let stand a February Indiana Court of Appeals ruling that ordered a Marion County judge to set bond. Shuai was charged in March 2011 and has been jailed since.

Shuai's attorney, Linda Pence, said she was "devastated" that the high court declined to hear the case. "It's horrible. She shouldn't be in jail. She should never have been in jail in the first place," Pence said. * * *

Several medical and women's rights groups, including the National Organization for Women and the National Alliance for Mental Illness, have filed friend-of-the-court briefs in support of Shuai, claiming that prosecuting Shuai could set a precedent under which pregnant women could be prosecuted for smoking or other behavior that might deemed a danger to their fetus. They said that could discourage women from seeking prenatal care.

Lynn Paltrow, executive director of the New York-based National Advocates for Pregnant Women, said Indiana courts have ignored 80 organizations and experts who have warned that allowing the case to go forward is "bad for mothers and babies." An attorney from Paltrow's group is helping defend Shuai.

"The message is ... if you suffer a pregnancy loss or do anything an outsider thinks could be harming your pregnancy, you could be charged with a crime and put on trial," Paltrow said. * * *

The Indiana Court of Appeals in February ordered a judge to set bond for Shuai, saying her defense attorneys presented sufficient evidence to rebut the murder and feticide charges. But the three-judge panel declined to dismiss the case, saying Shuai had not proven that common-law immunity exists for pregnant women who harm their own fetuses.

Posted by Marcia Oddi on Friday, May 11, 2012
Posted to Ind. App.Ct. Decisions

Law - "Obama on gay marriage: What the President said is far more nuanced than most of the popular media treatment"

Lyle Denniston of SCOTUSblog has this commentary. A quote:

He said, for example, that this was a matter of law, and he indicated he meant state law. He said that the issue had to be viewed “from the perspective of the law and perspective of the state.”

He also said that he had not wanted “to nationalize this issue” and he spoke of how the states are “working through this issue…all across the country,” and he said “I think that’s a healthy process and a healthy debate. ” He then added: “And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.” He noted that it was a question of “civil marriages and civil law” — that could only mean state law.

Posted by Marcia Oddi on Friday, May 11, 2012
Posted to General Law Related

Ind. Gov't. - "Jeffersonville disputes insurance contract"

David A. Mann had this long story in the May 10th Jeffersonville News & Tribune. Some quotes:

Just days before leaving office at the end of last year, former Jeffersonville Mayor Tom Galligan signed a two-year insurance contract with Preferred Health Plan.

However, members of Jeffersonville’s new administration, under Mayor Mike Moore, said they don’t plan to keep it, claiming the document is invalid.

“Indiana law does not allow for a municipality to enter into contracts that are unfunded,” city attorney Les Merkley said in a press release. “By entering into this two-year contract as it left office, the prior administration committed tax dollars beyond the existing budget. State law says such contracts are unfunded, and therefore void.” * * *

Does that mean every two-year contract is invalid?

“There are exceptions,” Merkley said.

Indiana statue 36-4-8-12, refers to contracts limited to the amount of appropriation but mentions exceptions such as long-term contracts for utility services or for issuing bonds.

According to Merkley, Galligan signed the deal Dec. 28, 2011, just three days before Moore took office. Further, he said, the city has been unable to find any records of Jeffersonville’s Board of Public Works and Safety ever approving the contract, which Merkley said raises more questions about its validity.

“This is another legal requirement before a contract with a municipality is valid. The mayor cannot unilaterally enter into contracts on behalf of the city without proper authorization.”

Galligan said he was given approval by the board of public works before signing it.

“Everything I did was approved,” Galligan said in a phone interview.

The former mayor said he had to sign it by the end of the year in order to make sure city employees had insurance coverage at the start of 2012.

Posted by Marcia Oddi on Friday, May 11, 2012
Posted to Indiana Government

Ind. Gov't. - "Will yet another fiasco finally convince Rahm Emanuel to cancel Chicago's parking meter lease?"

See the post in the Urbanophile blog.

Posted by Marcia Oddi on Friday, May 11, 2012
Posted to Indiana Government

Ind. Courts - "Supreme Court reviews process used to close puppy mill"

Indiana Department of State Revenue v. Virginia Garwood, et al., argued yesterday before the Supreme Court (see here and here) is the subject of a story today by Dan Carden in the NWI Times. The story begins:

INDIANAPOLIS | A tool routinely used to shut down large dog breeding operations, sometimes called puppy mills, was scrutinized Thursday by the Indiana Supreme Court.

A jeopardy tax assessment allows the state to immediately seize and sell property to satisfy claims of unpaid taxes. On June 2, 2009, Virginia and Kristin Garwood each were ordered to pay $142,367.94 in allegedly unpaid taxes from the sale of puppies at their Mauckport, Ind., farm.

ILB: I question only the phrase "tool routinely used to shut down large dog breeding operations." I believe this is the only time this "tool" has been used in this manner.

Posted by Marcia Oddi on Friday, May 11, 2012
Posted to Indiana Courts

Ind. Decisions - Supreme Court denies Bei Bei Shuai transfer petition

The AP's Charles Wilson has this brief story.

Here is a long list of earlier ILB entries on the Bei Bei Shuai case. As Mr. Wilson reports, Shuai has:

... lost her bid to have murder and feticide charges against her dropped but could be released on bond.

The Indiana Supreme Court on Friday declined to hear Bei Bei Shuai's (Bay Bay Shway) appeal but let stand a Court of Appeals ruling that ordered a Marion County judge to set bond.

Posted by Marcia Oddi on Friday, May 11, 2012
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from April 13, 2012, the May 10th Chesterton Tribune has a long guest commentary headed "NPS plan for Cowles Bog would destroy thousands of trees open natural area to industrial viewscape." It begins:

While I support the NPS's ongoing efforts to restore the Cowles Bog wetland, this particular aspect, which entails clear-cutting 25 acres of mature woodland, is misguided and unnecessarily destructive of the environment. It will have dire consequences for the local region and will most certainly diminish the enjoyment of this rich natural resource for the vast majority of park visitors. One need only visit the site to understand the tragic magnitude of the proposed project. More than 3,000 trees will be needlessly eliminated. In turn, this will expose the wetland's flora and fauna to marked increases in environmental pollution and obliterate the natural panorama which currently exists.

Disturbingly, none of this is apparent from reading the NPS environmental assessment or press releases. Their publicity campaign emphasizes only the project’s positive characteristics while obscuring or dismissing unfavorable aspects of it. In so doing, the NPS has intentionally misled the public in order to quell the inevitable opposition to such heavy-handed deforestation.

It concludes:
When the IDNLS (Ind. Dunes National Lakeshore) was created in 1966, the NPS was legislatively bound to “preserve in its present state...” that which had been entrusted to their care by the American people. It does not have the authority to customize the landscape to their whims. This is just one more example of a park administration that is dangerously out of touch with the concerns of local residents.

Posted by Marcia Oddi on Friday, May 11, 2012
Posted to Environment

Courts - Judge Posner: "Technical advances outpace, outsmart many in court"

Good column today in Ameet Sachdev's Chicago Law (Chicago Tribune). A few quotes:

Richard Posner, a distinguished federal judge in Chicago, paints an unsettling picture of how judges deal with the intersection of science and the law, an increasingly busy and complex juncture.

"We duck, bluff, weave and change the subject," said Posner, an outspoken judge known for his provocative legal opinions. * * *

"What we're confronted with in modern technology is altogether more esoteric and difficult than what we older people grew up with," said Posner, 73, who gave the keynote speech at the annual dinner of the 7th Circuit Bar Association. The judge sits on the U.S. Court of Appeals for the 7th Circuit in Chicago.

Of course, what he's saying is true in every influential job, from legislators to regulators to journalists. But Posner's solutions make some lawyers squirm.

He is a big fan of the Internet and has cited Web research in his opinions. He said every technological question is the subject of illuminating literature at all levels of sophistication.

It's hard to argue with a judge being better informed by turning to the Internet much like using a textbook. But Posner even praised Wikipedia, a community-edited online encyclopedia. While Wikipedia can be a good place to start, it has been criticized for being an unreliable source of information.

Posner's Web surfing poses other concerns for practitioners, said Carolyn Shapiro, a professor at IIT Chicago-Kent College of Law and one of the judge's former law clerks. Juries are prohibited from doing their own research, and some say the ban should extend to judges.

"The thing people worry about is judges looking at the Web to fill in formation that they don't find in the (court) record," Shapiro said.

In one case, Posner did exactly that. In a 2007 opinion involving the appeal of a prison sentence, the judge went to Google Maps to research the surroundings of the site of a shooting. He even attached a satellite photograph to his opinion. Posner also researched the characteristics of the gun that was fired, citing the website in the opinion.

Juval Scott, an Indianapolis attorney who represented the defendant in the case, said she gained a new appreciation for her job from Posner's ruling.

"I learned very early that if I wanted to appeal I need to develop a complete record," she said.

ILB: For more on that case, see this Jan. 30, 2007 ILB entry headed "Ind. Decisions - 7th Circuit: 'We are, however, distressed at the sloppiness with which the case has been handled by both sides.'" The case is U.S. v. Boyd.

Posted by Marcia Oddi on Friday, May 11, 2012
Posted to Courts in general

Vacancy on COA 2012 - Even more on: Here is the list of 14 applicants, plus the schedule

A number of you have asked: who will be covering the interviews for the ILB this time, as IU McKinney School of Law professor Joel Schumm, who has set a very high bar for the task, is one of the 14 applicants?

The ILB is pleased to announce that Hendricks County defense attorney and veteran appellate counsel Cara Wieneke has agreed to take on the role. Ms. Wieneke is a long-time ILB supporter.

The ILB is still awaiting word on when the applications and photos for the Court of Appeals opening will be posted by the Judicial Nominating Commission.

Posted by Marcia Oddi on Friday, May 11, 2012
Posted to Vacancy on COA 2012

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

In BMD Contractors v. Fidelity & Deposit Co. (SD Ind., Pratt), a 30-page opinion, Judge Sykes writes:

This case requires us to decide an increasingly important question in complex multitiered construction contracts—if the property owner becomes insolvent or otherwise defaults in payment, preventing a contractor from paying a subcontractor, which contractor bears the risk of loss? There is an additional wrinkle here because the question arises in a suit on a payment bond.

BMD Contractors, Inc. (“BMD”) was a subcontractor for Industrial Power Systems, Inc. (“Industrial Power”), which was itself a subcontractor for Walbridge Aldinger Company (“Walbridge”), the general contractor overseeing the construction of a manufacturing plant near Indianapolis, Indiana. Industrial Power executed a payment bond with Fidelity and Deposit Company of Maryland (“Fidelity”), making Fidelity a surety for Industrial Power’s payment obligations to BMD. The construction project proceeded on schedule for about a year, but the manufacturer then declared bankruptcy, causing a series of payment defaults to flow down the levels of contractors and subcontractors. Walbridge failed to pay Industrial Power, Industrial Power failed to pay BMD, and Fidelity refused to pay BMD. BMD sued Fidelity on the bond.

The subcontract between Industrial Power and BMD contains language conditioning Industrial Power’s duty to pay on its own receipt of payment. The district court construed this language as a “pay if paid” clause, which requires Industrial Power to pay BMD only if it receives payment under its own contract with Walbridge. The court rejected BMD’s counterargument that the contract language in question is a “pay when paid” clause, which would have controlled only the timing of Industrial Power’s payment obligation, not its ultimate duty to pay. The court also rejected BMD’s argument that pay-if-paid clauses are void under Indiana public policy. Finally, the court held that Fidelity, as a surety, could assert all the defenses of its principal, Industrial Power, even though the bond itself did not specifically incorporate the pay-if-paid language. Based on these holdings, the court granted summary judgment in favor of Fidelity, and BMD appealed.

We affirm. The Industrial Power/BMD subcontract expressly provides that Industrial Power’s receipt of payment is a condition precedent to its obligation to pay BMD. This language is clear and properly construed as a pay-if-paid clause. While the subcontract might have gone further—for example, it might also have said that BMD assumed the risk of the property owner’s insolvency—this additional language was not necessary to create an enforceable pay-if-paid provision. We also agree with the district court that pay-if-paid clauses are not void under Indiana public policy. Finally, under basic Indiana surety-law principles—reinforced by the weight of authority from other jurisdictions—Fidelity may assert all the defenses of its principal. Because Industrial Power was never obligated to pay BMD in the first place, BMD may not recover against Fidelity on the payment bond. * * *

The clear trend of recent caselaw bolsters the basic principle of Indiana law that a surety may assert all the defenses of its principal. Fidelity, no less than Industrial Power, may rely on the pay-if-paid clause in the Industrial Power/BMD subcontract to defend against this suit on the payment bond. Summary judgment was properly entered in favor of Fidelity.

Posted by Marcia Oddi on Friday, May 11, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Cortez Martin v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 11, 2012
Posted to Ind. App.Ct. Decisions

Thursday, May 10, 2012

Ind. Courts - Stories on two of the oral arguments today before Supreme Court

WRTV 6 has a story and video on the Garwood case here.

WISHTV 8 has a story and video on the disparity in hospital fees between insured and and uninsured patients here - Abby Allen, et al. v. Clarian Health Partners, Inc.

Posted by Marcia Oddi on Thursday, May 10, 2012
Posted to Indiana Courts

Vacancy on COA 2012 - Still more on: Here is the list of 14 applicants, plus the schedule

Some observations, so far, about the list of applicants:

Posted by Marcia Oddi on Thursday, May 10, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - More on: Here is the list of 14 applicants, plus the schedule

Yes, in response to inquiries, the ILB is waiting to hear when the 14 candidates' applications will be posted, and when the writing samples, etc. will be available for review, as has been the case as part of the previous Supreme Court and Tax Court selection processes.

Posted by Marcia Oddi on Thursday, May 10, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Here is the list of 14 applicants, plus the schedule

The Indiana Judicial Nominating Commission will consider fourteen applicants for the upcoming vacancy on the Court of Appeals of Indiana. The following attorneys and judges applied for the position and will be interviewed by the Commission on Wednesday May 16th:

8:45 a.m. – 9:05 a.m. – Hon. Cynthia J. Ayers
9:05 a.m. – 9:25 a.m. – Mr. Jeffrey D. Wehmueller
9:25 a.m. – 9:45 a.m. – Ms. Carol Nemeth Joven

(Break)

10:00 a.m. – 10:20 a.m. – Mr. Bryce D. Owens
10:20 a.m. – 10:40 a.m. – Ms. Abigail Lawlis Kuzma
10:40 a.m. – 11:00 a.m. – Ms. Brenda A. Roper

(Break)

11:15 a.m. – 11:35 a.m. – Ms. Rebecca A. Trent
11:35 a.m. – 11:55 a.m. – Hon. William C. Menges, Jr.

(Executive Session for Judicial Qualifications business)

1:30 p.m. – 1:50 p.m. – Mr. Chris M. Teagle
1:50 p.m. – 2:10 p.m. – Ms. Patricia Caress McMath
2:10 p.m. – 2:30 p.m. – Hon. Rudolph R. Pyle, III

(Break)

2:45 p.m. – 3:05 p.m. – Ms. Kari Evans Bennett
3:05 p.m. – 3:25 p.m. – Mr. Joel M. Schumm
3:25 p.m. – 3:45 p.m. – Hon. Robert R. Altice, Jr.

Second interviews will take place on June 4-5, 2012.

Posted by Marcia Oddi on Thursday, May 10, 2012
Posted to Vacancy on COA 2012

Ind. Courts - "Uninsured Patients Challenge Discounts for Those With Coverage "

The Supreme Court heard oral argument in the case of Abby Allen, et al. v. Clarian Health Partners, Inc. this morning.

For background: See this list of ILB entries, many headed "Clarian Health sued over high charges: Patients claim bills for services insurance doesn't cover are unreasonable." Here is the Oct. 12, 2011 COA opinion.

Eric Berman of WIBC 93.1 FM has this brief story. A quote:

Justices Brent Dickson and Mark Massa questioned how a hospital could disclose the cost of services in advance when doctors often don't know what treatments are required until they're well underway. And I-U Health attorney Jon Laramore argues a hospital has the same right as any other business to give discounts to customers who have demonstrated they'll pay their bills on time.

Posted by Marcia Oddi on Thursday, May 10, 2012
Posted to Ind. App.Ct. Decisions

Vacancy on COA 2012 - More on: Waiting for list of applicants for upcoming Court of Appeals vacancy

Updating this entry from earlier today, the ILB has heard there were 14 applications submitted. However, no list of names has yet been released.

Posted by Marcia Oddi on Thursday, May 10, 2012
Posted to Vacancy on COA 2012

Environment - Angry Birds!

Chad Damp reported yesterday for WSBT South Bend on a pair of hawks that have made a nest over the front door of the St. Joseph's Catholic Church in Mishawaka. From the story:

"Up until a couple weeks ago they really weren't bothering anybody and we weren't bothering them," said Father Terry Fisher, pastor at St. Joseph’s. * * *

"Well they got one lady on the top of her head and she had to have stitches and another woman on the side of her face," said Father Fisher.

The church called the Department of Natural Resources to see about having the nest removed. But DNR says the hawks are a protected species. So until they decide to leave there’s nothing anyone can do.

"Once they build their nest I guess you have relatives moving in for a few months until their babies hatch and are old enough to fly away," said Father Fisher. * * *

Father Fisher says anyone who may be worried about the hawks should use an umbrella when coming to the church or use a rear entrance.

Posted by Marcia Oddi on Thursday, May 10, 2012
Posted to Environment

Stage Collapse - "State Fair Hires Execs To Oversee Safety Plans"

The State Fair Commission is meeting today. WRTV 6 reports:

The Indiana State Fair has hired two new executives to oversee the implementation of its new public safety protocol in the wake of last year's deadly stage rigging collapse.

David Shaw has been named State Fair Commission chief operating officer and Jesse Olzera has been named the emergency operations officer.

Both men will report to the State Fair Commission on implementation of procedures recommended by Witt Associates and Thornton Tomasetti, which found that the fair's overall state of preparedness was not adequate for the scope of the event, and that the response to the threat of severe weather was mishandled.

Posted by Marcia Oddi on Thursday, May 10, 2012
Posted to Stage Collapse

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Lathisha Lawson v. State of Indiana , a 17-page opinion, Judge Barnes writes:

Latisha Lawson appeals her convictions for murder, Class C felony neglect of a dependent, Class D felony neglect of a dependent, and Class D felony battery. We affirm.

The sole issue before us is whether there is sufficient evidence to support the jury’s rejection of Lawson’s insanity defense. * * *

It may be, as suggested by defense counsel at oral argument, that Galloway requires closer appellate scrutiny of insanity defense claims than had been the case before. Still, even after applying such scrutiny in this case, we hold there is sufficient evidence to support the jury’s rejection of Lawson’s insanity defense. We affirm.

In Allison Riggle v. State of Indiana , a 4-page opinion, Judge Darden concludes:
Citing to Gunn, Riggle argues that the traffic stop was invalid because she did not commit a traffic violation when she turned left onto Martin Luther King Avenue. See id. at 140 (finding that the statute governing turns at intersections does not require drivers making a left turn to enter the second road in the closest left lane). The State concedes this issue, and we agree. Accordingly, we reverse and remand with instructions that the trial court vacate Riggle’s conviction.
In Thomas A. Neu and Elizabeth A. Neu, and Wells Fargo Bank, N.A. v. Brett Gibson , a 35-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the proceedings pertaining to the Indiana Real Estate became fully satisfied when Gibson obtained a foreclosure judgment on the Michigan Real Estate and submitted a full credit bid based on the same promissory note that was the basis of the Indiana foreclosure proceedings. In addition, we find that Appellants established bad faith pursuant to I.C. § 34-52-1-1 when Gibson failed to disclose the Michigan foreclosure judgment and sheriff’s sale. Therefore, we remand to the trial court for determination of reasonable attorney fees in favor of Appellants.
NFP civil opinions today (1):

In Re the Estate of Nancy Jean McMillen, Donna McMillen v. Thomas Kane (NFP)

NFP criminal opinions today (7):

Larry R. Busche, II v. State of Indiana (NFP)

Raymond H. Mims v. State of Indiana (NFP)

Sharon D. Collins v. State of Indiana (NFP)

Gary W. Ferguson v. State of Indiana (NFP)

Seth T. Lipscomb v. State of Indiana (NFP)

Michael West v. State of Indiana (NFP)

Russell W. Yerden v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 10, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "States are moving to set up health insurance exchanges" What about Indiana?

Interesting story this morning on NPR's Morning Edition. The lead-in:

States are moving to set up health insurance exchanges — a pillar of Obama's health care law. But many GOP governors find themselves in an awkward position. David Wessel, economics editor of The Wall Street Journal, talks to Steve Inskeep about why the governors' positions on exchanges are complicated.
Although the story, after explaning what the health insurance exchanges are and why they are useful, lists a number of states already setting up the exchanges, plus other states where the governors are waiting to see what the SCOTUS does on the health care list, there is no mention of Indiana.

The ILB has found this story by Dan Carden in the NWI Times from Jan. 15, 2011 headed "Governor orders creation of health insurance exchange." It begins:

Gov. Mitch Daniels does not like the federal health reform law enacted last year, but he's nevertheless taking steps to prepare Indiana for its implementation.

On Friday, the Republican governor signed an executive order directing the Family and Social Services Administration to work with other state agencies to conditionally establish and operate a health insurance exchange. [ILB - here is the Executive Order 11-01]

Under the Patient Protection and Affordable Care Act, each state is required by 2014 to set up a health insurance marketplace, called an exchange, that is intended to save money and help consumers by making health coverage options more transparent.

States that fail to show progress toward establishing an exchange by 2013 will have their exchange created for them by the federal government. Daniels doesn't want that to happen.

"The nation will be best served by the repeal of this expensive and unworkable law, or by its judicial overturn. But for now, there seems no alternative but to prepare for the possibility that Indiana will try to operate an exchange of some kind," Daniels said.

BTW, a quick look at the internet showed several so-called "Indiana Health Insurance Exchanges" -- you have to read carefully to learn that they are not really affiliated with the State of Indiana.

Posted by Marcia Oddi on Thursday, May 10, 2012
Posted to Indiana Government

Vacancy on COA 2012 - Waiting for list of applicants for upcoming Court of Appeals vacancy

Applications were due yesterday, May 9th, to fill the seat to be vacated by Judge Darden when he retires this summer.

We are expecting the list any time now, as the list of applicants for the Supreme Court vacancy was released late in the afternoon of the day the applications were due - Friday, Jan. 27th.

Posted by Marcia Oddi on Thursday, May 10, 2012
Posted to Vacancy on COA 2012

Law - More on "Obama declares support for gay marriage"

Updating yesterday's ILB entry, Eric Bradner reports today in the Evansville Courier & Press:

INDIANAPOLIS — Both the Democratic and Republican candidates for Indiana governor say they support a same-sex marriage ban that state legislators could be poised to amend into Indiana's constitution.

Their stances would put Indiana on the same page as North Carolina, where voters approved such an amendment on Tuesday, but out of step with President Barack Obama, who said Wednesday that he supports same-sex marriage rights. * * *

Whether Indiana should include in its constitution a ban on same-sex marriage is a matter that will likely be decided during the first term of the governor who replaces Daniels at the end of the year.

Overwhelming Republican majorities in the Indiana General Assembly approved a measure that defines marriage as being between one man and one woman in 2011.

That started the clock on a three-step process. To amend Indiana's constitution, the legislature must approve the exact same language after another election.

Therefore, the General Assembly would likely vote on the amendment again in either 2013 or 2014, after this fall's elections in which Republicans are expected to maintain strong majorities in both the House and the Senate.

Then, the final step would be a statewide referendum. That would be held in the fall of 2014, when voters would get an up-or-down say on the amendment.

Indiana's proposed ban would also stop the state from allowing civil unions or any other similar status for same-sex couples.

The ban says: "Only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized."

Posted by Marcia Oddi on Thursday, May 10, 2012
Posted to General Law Related | Indiana Law

Wednesday, May 09, 2012

Ind. Courts - "Tax Court has Three Oral Arguments On-Line, Two Scheduled "

The Indiana Tax Reporter blog is reporting this evening that the Tax Court, like the rest of the Court of Appeals, is now video-archiving its oral arguments.

The post reproduces the table from the Indiana Courts site, listing the three completed oral arguments that may be viewed, plus the two upcoming.

Posted by Marcia Oddi on Wednesday, May 09, 2012
Posted to Indiana Courts

Stage Collapse - More on: "Court to plan out lawsuits' resolution"

Updating this entry from earlier today, Carrie Ritchie reports this evening on the IndyStar site in a story that begins:

A Marion County judge will not allow transcripts of Sugarland's account of events leading up to the Aug. 13 stage rigging collapse at the Indiana State Fair to be released publicly.

Part of singer Jennifer Nettles' deposition was released by an attorney for some of the victims in a lawsuit over the collapse, but Marion Superior Court Judge Theodore Sosin said today he will deny the attorney's request to release the full transcript of Nettles' deposition and that of her band mate, Kristian Bush.

Sosin said he will decide next week whether he needs to come up with stricter rules regarding what attorneys in the suits can share publicly. He also is expected to set a trial date.

Posted by Marcia Oddi on Wednesday, May 09, 2012
Posted to Stage Collapse

Ind. Law - More on: Does Indiana's Marriage Statute Violates the U.S. Constitution? [Updated]

The Indianapolis Star has a story this afternoon on the ACLU suit challenging IC 31-11-6-1, which the ILB wrote about earlier today.

There is no reporter identified with the story, which is a good thing because I believe the lede is wrong. It reads:

On the same day President Obama made headlines by endorsing the legalization of same-sex marriage, the American Civil Liberties Union of Indiana announced it has sued the state of Indiana over the very same issue.
The Indiana prohibition against same-sex marriage is found at IC 31-11-1-1. The ACLU suit does not challenge that statute, rather it challenges the law relating to who may solemnize a marriage.

[Updated at 7:00 PM] The IndyStar story has now been revised, replacing the earlier version:

An Indiana group has filed a federal lawsuit claiming that the state’s marriage law is unconstitutional.

Coincidentally, the suit was filed today, the same day President Barack Obama said he supports gay marriage, but the suit focuses on those who officiate marriage ceremonies, not the people getting married.

Posted by Marcia Oddi on Wednesday, May 09, 2012
Posted to Indiana Law

Law - "Obama declares support for gay marriage"

Very short video of Obama, plus long written overview of his interview with ABC's Robin Roberts "in an interview to appear on ABC’s 'Good Morning America' Thursday. Excerpts of the interview will air tonight on ABC’s 'World News with Diane Sawyer.'"

Posted by Marcia Oddi on Wednesday, May 09, 2012
Posted to General Law Related

Law - IndyStar and LCJ share 2011 Best of Gannett Freedom of Information Award

The headline in what looks like the mothership blog, GANNETT, reads "Cited for tenacity and courage, The Indianapolis Star and The Courier-Journal at Louisville share top FOI award." Some quotes from the long story:

The Indianapolis Star reporter John Russell set out to determine if Duke Energy skirted the law by working with state regulators to approve $1 billion in cost overruns at a massive new power plant. That directly affected 700,000 utility customers by raising their rates.

Russell filed 23 open-records requests with myriad agencies and uncovered months of secret meetings that violated state law.

The state’s top regulator was fired and indicted on three felony counts. Three Duke Energy officials resigned or were fired. Hearings are underway on charges that Duke concealed evidence, committed fraud and grossly mismanagement the project.

Most significant, perhaps, is that the state has asked that the $1 billion in cost overruns be disallowed, which would save customers hundreds of millions of dollars on their electric bills.

FOI judges said: “Is there any bigger challenge than taking on Duke Energy, the major utility, and the Utility Regulatory Commission and the governor’s office? Talk about courage. The Indianapolis Star showed real courage.”

The Courier-Journal at Louisville finds no battle for open records and open meetings too small or too large. The newspaper’s message to officials across Kentucky is that The Courier-Journal will always challenge withheld records and secret meetings.

The 2011 portfolio of examples ranged widely:

a court battle with the state over records of child abuse;
a battle with the county over misconduct by detectives;
and a battle with Lexington police for the records of an investigation into a state lawmaker.

The 14 examples submitted for 2011 continued a long tradition of holding public officials accountable. This has been a hallmark of The Courier-Journal.

The Courier-Journal also does a good job of letting the public know that it’s fighting for their interests. Stories about their efforts often accompany the mainbar. This is an appropriate way to remind readers that the newspaper is fulfilling readers’ expectation that they do this type of journalism.

Judges said: “The Courier-Journal never lets up on any front. Never. They aren’t just watchdogs, they are bulldogs.”

Posted by Marcia Oddi on Wednesday, May 09, 2012
Posted to General Law Related

Ind. Law - Does Indiana's Marriage Statute Violates the U.S. Constitution?

That is the claim of the ACLU of Indiana in a suit filed today in federal district court. From the news release:

Indianapolis - Indiana allows religious groups to perform marriages in accordance with their beliefs. But marriages performed by a non-religious group that trains and certifies secular celebrants are not recognized by state law -- a violation of the U.S. Constitution.

"From a First Amendment perspective, it is proper and necessary for the state to allow religions to marry people according to their beliefs," said American Civil Liberties Union of Indiana Legal Director Ken Falk. "However, the state law becomes unconstitutional under the Establishment Clause when you say that religions are the only groups with rights to have their beliefs recognized in marriage ceremonies."

Falk said the statute, Indiana Code § 31-11-6-1, also violates the Equal Protection Clause of the Fourteenth Amendment because it denies the non-religious group its rights to spread its "essential beliefs" by performing marriage ceremonies, while allowing religious groups those same privileges.

The Center for Inquiry and the executive director of its Indiana branch, Reba Boyd Wooden, along with two longtime CFI-Indiana members from Kentucky who wish to marry in Indiana, are plaintiffs in the lawsuit. CFI's Secular Celebrant program trains participants to conduct marriage ceremonies in accordance with the center's essential beliefs, so that its members can have meaningful weddings featuring an assertion of their philosophical and ethical views. CFI believes in fostering a secular society based on science, reason, freedom of inquiry and humanist values in which the dignity and fundamental rights of all individuals are respected. CFI does not oppose the free exercise of religion.

IC § 31-11-6-1 lists among the groups "approved" to perform marriage ceremonies members of clergy and certain secular elected officials, and certain religious faiths including the Bahai faith, Friends Church, German Baptists and The Church of Jesus Christ of Latter Day Saints.

"This case is more than just an issue of fairness," said ACLU of Indiana Interim Executive Director Frank Young. "It's about respecting the rights of all who value marriage in Indiana. All who wish to have their marriage commitments solemnized should be able to do so in accordance with their beliefs, whether those beliefs are religious or not."

The case, Center for Inquiry, Inc., et al. v. Clerk, Marion Circuit Court, et al. was filed in the United States District Court Southern District of Indiana, Indianapolis Division, under cause number 1:12-cv-0623-SEB.

The ILB expects to post the complaint shortly.

Posted by Marcia Oddi on Wednesday, May 09, 2012
Posted to Indiana Law

Ind. Decisions - Gestational carrier and declaration of maternity; Maine and Indiana

Recalling the Indiana COA decision Feb. 17, 2010 in Paternity of R.; T.G. and V.G. v. State of Indiana (ILB summary here, 5th case), the Maine Supreme Court has acted on the issue.

A story April 12, 2012 in the Bangor Daily News by Seth Koenig, headed "Does Maine court have the authority to declare motherhood," began:

PORTLAND, Maine — One woman provided the egg, another woman provided the womb. The Maine Supreme Judicial Court is now being asked to consider which woman should be listed as the mother on the baby’s birth certificate.

The law court’s ruling on the subject could be groundbreaking. The decision has the potential to lay the groundwork for how courts would go about legally determining motherhood in future cases, as it’s now largely uncharted territory for Maine’s courts.

On Thursday, the state’s highest court heard oral arguments in a case in which Robert and Celia Nolan are appealing a Bangor District Court ruling that left the names of gestational carrier Kristen Labree and her husband, Jeff, on the birth certificate of a baby born in 2010.

The Thursday hearing was unusual in that only one lawyer presented his case before the court, as both parties are in agreement on the issue. Attorney Christopher Berry told the justices there’s no dispute over custody or parental rights and the Labrees agree that their names should be replaced on the birth certificate documentation by those of the Nolans.

The Labrees, he told the court, believe their role in the surrogacy agreement has been fulfilled.

The Nolans sought a declaration at the District Court level that they are the mother and father of the child, but while the lower court found that Robert Nolan had established paternity, it ruled that it lacked the authority to declare the maternity of Celia Nolan.

Today the Bangor Daily News has a story by Judy Harrison, headed "Maine court says judges can decide maternity — if all parties agree."

Here is the May 3, 2012 Maine Supreme Court opinion in Robert Nolan et al. v. Kristen Labree.

More on the Indiana case here and here.

Posted by Marcia Oddi on Wednesday, May 09, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Ashanti Clemons v. State of Indiana, a 12-page opinion, Judge Najam writes:

Ashanti Clemons appeals the post-conviction court’s denial of his amended petition for post-conviction relief. Clemons raises two issues for our review: 1. Whether he received ineffective assistance of trial counsel. 2. Whether he received ineffective assistance of appellate counsel. We affirm. * * *

Clemons has not shown that his trial counsel was ineffective for conceding at his first trial that his post-arrest request for counsel was equivocal. Nor has he shown ineffectiveness when his trial counsel, despite investigation, was unable to secure and offer into evidence Clemons’ sixteen-year-old schools records as evidence of his low IQ and, therefore, his purported inability to knowingly waive his right to counsel. Finally, Clemons has not demonstrated that his appellate counsel was ineffective for failing to file a petition to transfer from his voluntary manslaughter conviction. Because he may still seek review by the Indiana Supreme Court by appealing the instant decision, Clemons has not been procedurally defaulted. As such, he has not demonstrated that his appellate counsel’s representation was deficient. We affirm the denial of Clemons’ amended petition for post-conviction relief.

In Halston Thomas v. State of Indiana, an 11-page opinion, Judge Friedlander writes:
[Issue] Did the trial court err in admitting deposition testimony of a witness who refused to testify at trial and whom Thomas had an opportunity to examine at the deposition? We affirm. * * *

In view of the strength of the evidence of guilt and in view of the fact that Gordon’s deposition testimony was, largely, merely cumulative of Crossley’s, even assuming for the sake of argument that the trial court erred in admitting Gordon’s deposition, the error was harmless.

NFP civil opinions today (6):

In the Matter of Children Alleged to be Children in Need of Services, D.H. & G.H., and D.B.H. v. The Indiana Dept. of Child Services (NFP)

In Re the Marriage of: Tanya A. (Bennett) Louderback v. Edward L. Bennett (NFP)

Kathryn Gillespie v. Review Board of the Indiana Dept. of Workforce Development, et al. (NFP)

Juan Murillo Bravo v. Silvia Bravo and Rancho Bravo, Inc. (NFP)

C.K. v. Indiana Department of Child Services (NFP)

Term. of the Parent-Child Rel. of A.B. and P.B.; E.B. (Mother) v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (7):

Clinton Davis v. State of Indiana (NFP)

Henry L. Shell v. State of Indiana (NFP)

Douglas P. Wilson, Jr. v. State of Indiana

Mark Bailey v. State of Indiana (NFP)

Zachary Bowser v. State of Indiana (NFP)

Robert Allen Barker v. State of Indiana (NFP)

Paul T. Dhaenens v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 09, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Philadelphia revises zoning codes, saying "If We Fix It, They Will Come"

Interesting story by Feather O'Connor Houstoun in Governing begins:

Philadelphia's vintage zoning code — adopted in 1952 but amended through variances thousands of times each year — was replaced last year by one that recognizes modern building types, brings clarity to review processes and provides clear guidelines for development that doesn't require approval by regulatory boards. The city council's vote was the culmination of a seven-year campaign that illustrates the essential elements of successful collaboration as described by John Kania and Mark Kramer in their landmark Stanford Social Innovation Review article, "Collective Impact."

Kania and Kramer identified the structural components in collaborations that help make them effective, and the Philadelphia story of the campaign called "If We Fix It, They Will Come" illustrates the power of their insights.

Despite a surge in center-city office and residential condominium development in the 1990s, development in Philadelphia a decade later was costly, time-consuming and unpredictable. Multiple siloed city departments independently reviewed development proposals against unwritten requirements, with unpredictable results. Many national developers avoided the city.

Posted by Marcia Oddi on Wednesday, May 09, 2012
Posted to Indiana Government

Ind. Courts - "Gammage to face Fox in St. Joseph County probate judge race"

Margaret Fosmoe reports today in the South Bend Tribune:

SOUTH BEND -- Garnering 46 percent of the votes, Andre Gammage won the five-way race Tuesday for the Democratic nomination for St. Joseph probate judge.

Gammage will face Republican nominee Jim Fox in the general election in November.

Gammage said after his victory that he will continue to emphasize the same issues for the general election. "We want to be innovative and proactive in terms of our approach to the court. We want to go outside the four walls of the court to try to help head off some of the problems in the community," he said. * * *

The winner of the general election will succeed Judge Peter Nemeth, who is retiring at the end of this year after 19 years on the bench.

See also this story yesterday in the Tribune, reported by Kelli Stopczynski, featuring Judge Nemeth. The story begins:
The race for St. Joseph County's probate judge is one of the biggest local contests in Tuesday's primary election. Five democrats are vying to get on the November ballot and only one of the five will move forward to face Republican challenger Jim Fox in the fall.

It's a crucial time for kids in St. Joseph County.

"Certainly the biggest area of concern right now is what's going on with the state takeover of the Department of Child Services," said current county Probate Judge Peter Nemeth. "I think it's a disaster, it doesn't work."

DCS has cut millions from the treatment programs and facilities Nemeth uses to send children who end up at the county's Juvenile Justice Center.

St. Joseph County is the only county in the state with a probate court that handles paternity cases, guardianship, adoptions, juvenile delinquencies, child welfare, and wills and estates.

Posted by Marcia Oddi on Wednesday, May 09, 2012
Posted to Indiana Courts

Law - "Maybe opening another law school campus wasn't such a bad idea after all. "

Thanks to the ABA Journal Blog for linking to this National Law Journal story by Karen Sloan, headed "Cooley's Florida campus more popular than forecast." From the story:

Thomas M. Cooley Law School launched its newest location near Tampa, Fla., on May 7 with 104 students — nearly twice as many as administrators initially expected to enroll.

"Cooley's Tampa Bay Campus enrollment exceeded our expectations," said Associate Dean Jeff Martlew. "These numbers indicate the Tampa Bay area was ready for a law school. We are pleased to open our doors with such enthusiasm from the community and the students who have selected Cooley."

Posted by Marcia Oddi on Wednesday, May 09, 2012
Posted to General Law Related

Stage Collapse - "Court to plan out lawsuits' resolution"

That is the headline to this story by Carrie Ritchie in this morning's Indianapolis Star. The story begins:

Lawyers in the lawsuits over the Indiana State Fair stage rigging collapse will be back in court today to discuss a schedule to resolve the suits and one lawyer's request to release information about them.

Attorney Kenneth J. Allen, who's representing several of the victims who have sued the fair and others over the Aug. 13 collapse, has asked Marion Superior Court Judge Theodore Sosin to allow him to publicly release the transcripts of depositions Sugarland provided last month. Band members Kristian Bush and Jennifer Nettles told attorneys their knowledge of the events leading up to the collapse, which killed seven and injured nearly 60.

Posted by Marcia Oddi on Wednesday, May 09, 2012
Posted to Stage Collapse

Tuesday, May 08, 2012

Ind. Courts - Slates prevail in Marion County judicial races

Jon Murray is now reporting from his Star blog:

UPDATE (9:15 p.m.): The party slates held ironclad. With nearly 92 percent of precincts now reporting, the non-endorsed candidates — Republicans Paul Ogden and Judge Carol Orbison and Democrats Greg Bowes and Mark King — were running thousands of votes behind the 10 leaders on each side.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Indiana Courts

Ind. Courts - "Waiting on results for Marion Superior Court judges"

Jon Murray gives a good set-up for the upcoming election results in the Marion County judges races at his IndyStar blog.

For more background, see this ILB entry from Sunday.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Indiana Courts

Ind. Gov't. - IDEM submits draft construction/operating permit for Rockport Coal Gasification plant to US EPA for approval

Here is IDEM's 1,012-page draft PSD New Source Construction/Part 70 Operating Permit. You may access the entire document here, but be cautioned that it is over 15M.

The ILB has extracted the 6-page cover letter, which begins:

Dear Mr. Lubbers:

Indiana Gasification, LLC located at CR 200 N and Base Road, Rockport, Indiana in Spencer County submitted a PSD and Title V Operating Permit application to IDEM, OAQ on April 20, 2011 relating to the proposed facility designed to convert Illinois Basin coal and petroleum coke into pipeline-quality SNG and liquefied CO2. Pursuant to 326 IAC 2-2 and 326 IAC 2-7 the following emission units are approved for construction at the source: * * *

Here is the press release issued yesterday by Indiana Gasification, LLC. It is headed "World-class Coal Facility Advances with IDEM Proposed Permit." S ome quotes:
ROCKPORT, Ind., May 7, 2012 /PRNewswire-USNewswire/ -- Indiana Gasification today welcomes the decision by the Indiana Department of Environmental Management (IDEM) to file a proposed permit for our company's state-of-the-art plant with the U.S. Environmental Protection Agency (EPA). * * *

The Indiana Department of Environmental Management (IDEM) has submitted a proposed permit to the U.S. Environmental Protection Agency ("EPA") for review, including IDEM's response to the comments received from the EPA and the public on IDEM's draft Clean Air Act construction and operating permit. IDEM previously published the draft permit for public comment, and held a public meeting and hearing on January 25, 2012.

See this Jan. 26, 2012 ILB entry re the public hearing.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Environment | Indiana Government

Ind. Decisions - 7th Circuit issues two Indiana decisions today

In Susan Schaefer-LaRose v. Eli Lilly (SD Ind., Barker), a 54-page combined opinion, Circuit Judge Ripple writes:

These two cases, which we have consolidated for opinion, involve the application of the outside sales and administrative exemptions of the Fair Labor Standards Act (“FLSA” or the “Act”), 29 U.S.C. §§ 201-19, to pharmaceutical sales representatives employed by Eli Lilly & Co. (“Lilly”) and Abbott Laboratories, Inc. (“Abbott”). The plaintiffs in each case claim that, during their tenure as sales representatives with these pharmaceutical companies, they were misclassified as exempt employees and denied overtime pay, in violation of the statute. The employers contend that both the administrative exemption and the outside sales exemption, 29 U.S.C. § 213(a)(1), remove the sales representatives from the overtime protections of the FLSA. The two district courts in the present cases reached opposite conclusions, each relying on cases decided by other circuits.

Before this court, the Department of Labor (“DOL” or the “Department”) has participated as amicus curiae in case number 10-3855 and has asked us to consider its arguments in our disposition of cases 11-1980 and 11-2131 as well. In the Department’s view, the plaintiffs are neither administrative employees nor outside salespersons within the meaning of the statute and the Department’s regulations.

After thorough consideration of the positions of the parties, the view of the Department, the opinions of our sister circuits and the facts in the records before us, we conclude that, under the regulations of the Department of Labor, the pharmaceutical sales representatives are classified properly within the administrative exemption to the overtime requirements of the FLSA. Consequently, we do not address the applicability of the outside sales exemption. We therefore affirm the judgment of the district court in favor of Lilly in case number 10-3855 and reverse the judgment in favor of the plaintiff class in cases 11-1980 and 11-2131 and remand with instructions to enter judgment for Abbott.

In Sandifer, et al v. US Steel (ND Ind., Miller), a 19-page opinion, Circuit Judge Posner writes:
These appeals arise out of a class action (technically a “collective action,” as it is brought pursuant to 29 U.S.C. § 216(b), a part of the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 et seq., rather than pursuant to Fed. R. Civ. P. 23) on behalf of 800 former and current hourly workers at U.S. Steel’s steel works in Gary, Indiana. The plaintiffs argue that U.S. Steel has violated the Act by failing to compensate them for the time they spend in putting on and taking off their work clothes in a locker room at the plant (“clotheschanging time”) and in walking from the locker room to their work stations, and back again at the end of the day (“travel time”). The collective bargaining agreement between U.S. Steel and the steelworkers union does not require compensation for such time, and apparently none of the previous collective bargaining agreements between U.S. Steel and the union since 1947, nine years after the FLSA was enacted, required it either. But the plaintiffs argue that the Act itself requires compensation; and if it does, it overrides any contrary contractual provision. Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 740-41 (1981).

The district judge ruled that the Fair Labor Standards Act does not require that the clothes-changing time in this case be compensated, but that the Act may require that the travel time be compensated and he therefore refused to dismiss the suit. But he certified the issue of the compensability of the travel time for an interlocutory appeal under 28 U.S.C. § 1292(b) by U.S. Steel, and we accepted the appeal. * * *

[Page 5 includes a color photo of "a man modeling the clothes." The opinion states that "These work clothes are in the record, and since a picture is worth a thousand words ...".]

We resolve the specific issue that we have been asked to resolve in this interlocutory appeal in favor of U.S. Steel. On the basis of that resolution, the suit has no merit and should be dismissed by the district court.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides ACLU v. Alvarez

Just a few days ago, on May 3rd, the ILB posted an entry headed "Recording Police v. Recording Citizens Debated in 7th Circuit and in Illinois Legislature." Today the 7th Circuit issued its opinion, written by Circuit Judge Sykes, joined by Judge Hamilton, with Judge Posner dissenting.

In ACLU v. Alvarez (ND Ill.), a 66-page, 2-1 opinion, Circuit Judge Sykes writes:

The Illinois eavesdropping statute makes it a felony to audio record “all or any part of any conversation” unless all parties to the conversation give their consent. 720 ILL. COMP. STAT. 5/14-2(a)(1). The statute covers any oral communication regardless of whether the communication was intended to be private. Id. 5/14-1(d). The offense is normally a class 4 felony but is elevated to a class 1 felony—with a possible prison term of four to fifteen years—if one of the recorded individuals is performing duties as a law-enforcement officer. Id. 5/14-4(b). Illinois does not prohibit taking silent video of police officers performing their duties in public; turning on a microphone, however, triggers class 1 felony punishment.

The question here is whether the First Amendment prevents Illinois prosecutors from enforcing the eavesdropping statute against people who openly record police officers performing their official duties in public. More specifically, the American Civil Liberties Union of Illinois (“ACLU”) challenges the statute as applied to the organization’s Chicago-area “police accountability program,” which includes a plan to openly make audiovisual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders. Concerned that its videographers would be prosecuted under the eavesdropping statute, the ACLU has not yet implemented the program. Instead, it filed this preenforcement action against Anita Alvarez, the Cook County State’s Attorney, asking for declaratory and injunctive relief barring her from enforcing the statute on these facts. The ACLU moved for a preliminary injunction.

Faced with so obvious a test case, the district court proceeded with some skepticism. The judge dismissed the complaint for lack of standing, holding that the ACLU had not sufficiently alleged a threat of prosecution. The ACLU tried again, submitting a new complaint addressing the court’s concerns. This time, the judge held that the ACLU had cured the original defect but had “not alleged a cognizable First Amendment injury” because the First Amendment does not protect a “right to audio record.” The judge denied leave to amend. The ACLU appealed.

We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here. The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to contentneutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s freespeech and free-press guarantees. [ILB emphasis] * * *

Before closing, a brief response to a couple of points in the dissent. Our decision will not, as Judge Posner suggests, “cast[] a shadow over the electronic privacy statutes of other states.” Dissent at 54. As we have explained, the Illinois statute is a national outlier. See Alderman, Police Privacy in the iPhone Era?, supra note 4, at 533-45 (collecting state statutes). Most state electronic privacy statutes apply only to private conversations; that is, they contain (or are construed to include) an expectation-of-privacy requirement that limits their scope to conversations that carry a reasonable expectation of privacy. Others apply only to wiretapping, and some ban only surreptitious recording. Id. Indeed, the California statute discussed in the dissent is explicitly limited to “confidential communications,” a term specifically defined to exclude the kind of communications at issue here. If the Illinois statute contained a similar limitation, the link to the State’s privacy justification would be much stronger.

The dissent also takes us to task for giving insufficient consideration to the privacy interests of civilians who communicate with the police and for failing to grasp the extent to which people “say things in public that they don’t expect others around them to be listening to, let alone recording for later broadcasting.” Dissent at 63. To the contrary, we have acknowledged the importance of conversational privacy and heeded the basic distinction drawn in Katz that some conversations in public places implicate privacy and others do not. See Katz, 389 U.S. at 351. Again, the privacy interests that may justify banning audio recording are not limited to those that the Fourth Amendment secures against governmental intrusion. But the Illinois eavesdropping statute obliterates the distinction between private and nonprivate by criminalizing all nonconsensual audio recording regardless of whether the communication is private in any sense. 720 ILL. COMP. STAT. 5/14-1(d). If protecting privacy is the justification for this law, then the law must be more closely tailored to serve that interest in order to avoid trampling on speech and press rights.

For these reasons, we conclude that the ACLU has a strong likelihood of success on the merits of its First Amendment claim. The Illinois eavesdropping statute restricts an expressive medium used for the preservation and dissemination of information and ideas. On the factual premises of this case, the statute does not serve the important governmental interest of protecting conversational privacy; applying the statute in the circumstances alleged here is likely unconstitutional.

Accordingly, we reverse and remand with the following instructions: The district court shall reopen the case and allow the amended complaint; enter a preliminary injunction enjoining the State’s Attorney from applying the Illinois eavesdropping statute against the ACLU and its employees or agents who openly audio record the audible communications of law-enforcement officers (or others whose communications are incidentally captured) when the officers are engaged in their official duties in public places; and conduct such further proceedings as are consistent with this opinion.

[Judge Posner's dissent begins on p. 53 of 66. He concludes] Accuracy is a social value, and a recording of a conversation provides a more accurate record of the conversation than the recollection of the conversants: more accurate, and also more truthful, since a party to a conversation, including a police officer, may lie about what he heard or said. But on the other side of the balance are the inhibiting effect of nonconsensual recording of conversations on the number and candor of conversations (and hence on values that the First Amendment protects); the baleful effect on privacy; the negative effect on law enforcement; and the litigation likely to be engendered by police officers’ shooing away intruders on their private conversations with citizens. These are significant social costs, and the majority opinion offers no basis in fact or history, in theory or practice, in constitutional text or judicial precedent, for weighting them less heavily than the social value of recorded eavesdropping.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Indiana law exempts ALEC from lobbyist disclosure requirements

The ILB's most recent post on ALEC (the American Legislative Exchange Council) was April 23rd. Today Paul Abowd, iWatch News (The Center for Public Integrity) has this lengthy surprising story in The Huffington Post, headlined "ALEC exempted from lobbyist status in three separate states." Some quotes (emphasis added by ILB):

This spring has brought constant controversy for the American Legislative Exchange Council, the conservative group of legislators and corporations that pushes free-market model legislation in the states -- but it may not be over yet. * * *

It could take several years for the IRS to decide whether ALEC is indeed a lobbyist required to register with that label and disclose how much it spends on influencing legislation. But in three states -- South Carolina, Indiana and Colorado -- it turns out that ALEC has quietly, and by name, been specifically exempted from lobbyist status.

The laws in those states allow ALEC to spend millions annually hosting corporate lobbyists and legislators at three yearly conferences, send "issue alerts" to legislators recommending votes on pending legislation, and draft press releases for legislators to use when pushing ALEC model bills -- all without registering as a lobbyist or reporting these expenditures.

Legislators can receive scholarships from ALEC's corporate donors to attend conference events, or they can legally go on the taxpayer dime.

These exemptions are just now coming to light. * * *

In Indiana, six groups are expressly "not considered lobbyists": the National Black Caucus of State Legislators, Women in Government, the National Conference of Insurance Legislators, the Council of State Governments, and the National Conference of State Legislatures, as well as ALEC.

ALEC member and Republican Speaker of the House Mike Murphy co-sponsored a 2010 Indiana ethics bill with Minority Leader Pat Bauer that laid out rules for lobbying disclosure. The original bill did not exempt any organizations by name. Bauer, a 42-year veteran of Indiana's state House, says the Republican-led Senate Legislative Rules Committee amended the bill to exempt six organizations -- including ALEC -- before it came to a vote.

He supports revising the law to exclude ALEC. "Since the tsunami of 2010," which gave Republicans new command in dozens of state legislatures, says Bauer, ALEC has pushed its legislation in Indiana more aggressively. "At the time this bill passed, they didn't have that profile." [ILB - The ILB's first post on ALEC is dated Oct. 29, 2010.]

But Julia Vaughn, director and lobbyist for Common Cause's affiliate in Indiana, says any challenge to ALEC's exemption would die quickly in the state's heavily GOP legislature.

Here is the Indiana General Assembly page for HB 1001-2010. Here are the Senate Rules Committee amendments. See p. 4, lines 26-36.

The exemptions are now codified at IC 2-7-1-10.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Indiana Law

Ind. Courts - "'Legal issue' halts murder trial"

Sophia Voravong reports today in a long story in the Lafayette Journal Courier - some quotes:

Wesley Coffey’s remark Friday afternoon in Tippecanoe Superior Court 1 about his friend, Clint Laxton, completing a polygraph for police as part of a homicide investigation was just one small mention made during roughly 30 minutes of detailed testimony.

But however brief, that statement was enough for Judge Randy Williams to declare a mistrial Monday morning in 32-year-old Edward C. Zaragoza’s trial on charges of murder, conspiracy to commit robbery and 11 other felonies.

Now the trial, which began with jury selection May 1, included three full days of testimony and was expected to last up to three weeks, must be rescheduled. Attorneys plan to meet with Williams on Wednesday morning to choose another date. * * *

Robert Little, one of Zaragoza’s court-appointed attorneys, confirmed Monday afternoon that it was due to a comment Coffey made about Laxton, a Lafayette man who admitted during testimony Friday morning that he and Zaragoza previously plotted to take cash and marijuana from Rogers, a marijuana dealer. * * *

Beyond bringing up the polygraph — polygraphs typically are not admissible in court because they’re not considered reliable and results can sway jurors — Coffey’s statement that Laxton passed it was wrong, according to Little and Meyers’ motion for a mistrial that was filed Monday. Laxton actually failed it, they wrote.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Ind. Trial Ct. Decisions

Vacancy on Supreme Court 2012 - "New Indiana Supreme Court Justice Mark Massa dons robes of office"

William J. Booher of the Indianapolis Star has the story today, along with a set of nice photos by Matt Kryger.

Eric Bradner has a story in the Evansville Courier & Press headed "Justice Mark Massa inducted into supreme court."

Video of the ceremony is available here on the Supreme Court site.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Vacancy on Supreme Court 2012

Monday, May 07, 2012

Ind. Decisions - "While ordinarily Rule 65(E) would require certification of the opinion prior to action by the trial court ..., courts have inherent authority to require immediate compliance with their orders and decrees to give effective relief."

Last Friday, May 4th, a panel of the Court of Appeals heard this case:

10:30 AM - James Ripps vs. State of Indiana (15A01-1109-CR-436) - James Ripps was convicted of child molesting and sentenced to eight years with six years and 300 days of his sentence suspended to probation. Among the conditions of his probation were that he not reside within one thousand feet of a school property and that he inform all persons living at his place of residence of his conviction. On May 27, 2011, the State filed a notice of probation violation alleging that Ripps had violated both of these conditions of his probation. Following a hearing, the trial court revoked Ripps’s probation and ordered that he serve the remainder of his suspended sentence. Ripps appeals the sentence, arguing that revoking his entire sentence was an abuse of discretion. The Scheduled Panel Members are: Chief Judge Robb, Judge Baker and Senior Judge Shepard. [Where: Franklin Community High School, Performing Arts Center, 2600 Cumberland Drive, Franklin, Indiana]
Two things to note right off. The oral argument was held in Franklin, so there is no videocast. And the panel is made up of the Chief Judge of the COA, the former Chief Judge, and the man who was until a few weeks ago the Chief Justice of the State of Indiana.

And one more remarkable thing. Last Friday afternoon the panel issued a 2-page Order that concludes:

Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:

1. This Court held oral argument this morning and having read all the briefs and deliberated on the issues, we conclude that Ripps has adequately demonstrated that revoking his probation on the present basis was an abuse of discretion.

2. While ordinarily Indiana Appellate Rule 65(E) would require certification of the opinion prior to action by the trial court, in equity and law, courts have inherent authority to require immediate compliance with their orders and decrees in order to give effective relief. Noble County v. Rogers, 745 N.E.2d 194, 198 (Ind. 2001); State ex rel. Brubalcer v. Pritchard, 236 Ind. 222, 226-27, 138 N.E.2d 233, 235 (1956). A formal opinion will follow in due course. Accordingly, we direct the trial court to order Rípps’ release forthwith.

The facts of the Ripp case, as set out in the Order, are worth reading, particularly in light of the recent press focus on sex offender registries:

Appellant James Ripps is a 69-year-old man with terminal prostate cancer, congestive heart failure and obstructive pulmonary disease among other maladies.

He has been serving probation from 2006 child molesting charges that were based on events in 1997 or 1998. The trial court at one point revoked Ripps' probation on grounds that he lived too close to a public park, and Ripps served more than a year as executed time before it became apparent that under Pollard v. State, 908 N.E.2d 1145 (Ind. 2009), applying the 2006 statutes on registration and residency violated the Ex Post Facto Clause. Ripps was ordered released.

When Ripps returned from prison after this ruling, he moved into an assisted living facility in Milan, Indiana, where his medical conditions could be managed. Unsure whether he needed to register, he reported his new whereabouts to the Ripley County Sheriff. The Sheriff determined that the nursing home was 980 feet from the local library and told Ripps he needed to move.

As Ripps was preparing to move somewhere new in order to stay in compliance, the Prosecutor filed for revocation again, contending that the library was a "youth center" and that living in the nursing home violated the terms of Ripps' probation conditions, even though the condition in question could not be charged as a crime under Pollard. The trial court agreed and revoked the entire remainder of Ripps' original eight-year sentence (namely, the better part of three years).

Ripps' contention on appeal is that ordering him to serve all the back-up time was an abuse of discretion, in light of his terminal health condition, his having wrongly served prison time, the very technical nature of the violation (980 feet), the fact that the authorities only having learned of Ripps' living arrangements because he went to the Sheriff to report his location, and his having been about to move when he was charged anew.

[Many of you will recall that Bei Bei Shuai was not so fortunate. See this post from Feb. 14, 2012. The trial court refused a bond hearing on the basis that Ind. R. App. P. 65(E) forbids reliance on a COA opinion prior to certification, even though the COA on Feb. 8, 2012 had reversed the denial of her motion for bail and remanded for determination of the amount of bail. Ms. Shuai remains in jail.]

Posted by Marcia Oddi on Monday, May 07, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 4, 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, May 4, 2012. It is two pages (and 20 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, May 07, 2012
Posted to Indiana Transfer Lists

Ind. Courts - "Disbarred lawyer charged with forgery"

The ILB has a number of entries relating to disbarred attorney Rodney P. Sniadecki. In a story today in the South Bend Tribune, Jeff Harrell reports in a story that begins:

SOUTH BEND -- A disbarred attorney faces criminal charges for forging names on legal documents and filing fraudulent tax returns while he was under suspension.

Rodney P. Sniadecki was indicted by a grand jury Friday on three counts of forgery stemming from the filing of court documents for clients signed under the names of other attorneys and filing fraudulent tax returns while operating a mortgage brokerage in the same building as his law office -- all while he was suspended.

Sniadecki, who practiced law as a sole practitioner in Mishawaka and South Bend, was suspended in November 2007 from practicing law for six months.

Here is the disbarrment order from April 1, 2010.

Posted by Marcia Oddi on Monday, May 07, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In Re the Marriage of : Tasha Rose v. Melvin Rose (NFP)

NFP criminal opinions today (4):

Luis Ramos v. State of Indiana (NFP)

Raymond S. Schmitt v. State of Indiana (NFP)

Richard Williams v. State of Indiana (NFP)

Juan De Dios Orozco-Mitchel v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 07, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Ceremonial Swearing-In Ceremony for new Justice Mark S. Massa today

From the news release:

Mark Massa will be sworn-in as Indiana’s 107th Justice at 2 PM on Monday, May 7th in Indianapolis.

The one-hour ceremony will include remarks from Governor Mitch Daniels, former gubernatorial advisor Mark Lubbers and former Marion County Prosecutor Scott Newman. Governor Daniels named Mr. Massa to succeed Chief Justice Randall T. Shepard, who retired in March.

The ceremony will be videocast. Watch it here at 2 PM.

Posted by Marcia Oddi on Monday, May 07, 2012
Posted to Indiana Courts

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, something I totally missed! The ILB's first entry was on March 16, 2003. That means the ILB is now well over 9 years old! (The first year of the ILB, from March 16, 2003 to Jan. 29, 2004, is accessible here.)

So, Happy Belated Birthday, ILB!

If you value the ILB, then please make the move to supporting the ILB, today!

From Sunday, May 6, 2012:

Posted by Marcia Oddi on Monday, May 07, 2012
Posted to About the Indiana Law Blog

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, May 10th

Next week's oral arguments before the Supreme Court (week of 5/14/12):

Monday, May 14th

Webcasts of Supreme Court oral arguments are available here.


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

Monday, May 7th

Next week's oral arguments before the Court of Appeals (week of 5/14/12):

Thursday, May 17th

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, May 07, 2012
Posted to Upcoming Oral Arguments

Sunday, May 06, 2012

Ind. Courts - "The system by which judges are 'elected' to the Marion County Superior Court is broken."

That is the beginning of an editorial yesterday in the Indianapolis Star. More:

That's because in reality political bosses, not the public, decide who will be all but assured of winning a seat on the bench.

Here's how the peculiar process works: Insiders from each major political party slate their favorites ahead of the May primary, and then the exact number of candidates -- this year 10 from each party -- needed to fill the available judgeships emerges for the general election.

In other words, every Democratic and Republican judicial candidate who makes it on the ballot wins in November, and the most certain way to make it on the ballot is to curry favor with political bosses so that you will be slated (read: anointed) for the primary.

Kind of strains the notion of an independent judiciary, doesn't it?

This strange spoils system in which the two parties essentially divide up the Marion County courts is the result of a 2006 state law that has drawn widespread criticism, including from former Indiana Chief Justice Randy Shepard and Gov. Mitch Daniels. [ILB: Also former Indiana Supreme Court Justice Ted Boehm.] * * *

[T]he campaigns now take place behind closed doors, months ahead of the election, when would-be judges compete for slating. Those who aren't picked by party insiders have at best an outside chance of prevailing in the primary.

So this Tuesday both Democrat and Republican primary voters will look at ballots containing 12 names for 10 spots, because there are two unslated candidates on each party ballot (although they are of course not so designated). (Here is a Star list of all 24 names, in alphabetic order, not separated by party). Selecting a name from the Star list provides much additional information.

On the Republican ballot, the two unslated candidates are Paul Odgen and Carol Orbison. Orbison is an incumbent judge.

On the Democratic ballot, the two unslated candidates are Greg Bowes and Mark King.

Another source of information is the Indianapolis Bar association survey of the opinions of attorneys who may be familiar with the Marion County Superior Court. It has detailed profiles of each candidate. Two Democrats (Mark Stoner and Heather Welch) and two Republicans (Robert Altice and Michael Keele) scored above 95% - all four are sitting judges.

Making you vote count. One way to make your vote count on Tuesday is to only vote for those candidates you strongly support. There is no requirement that you pick 10 out of the 12 names on your ballot. You can vote for one, or a handful. (Candidate Greg Bowes also makes this point on his website.)

See also these recent ILB posts:

Posted by Marcia Oddi on Sunday, May 06, 2012
Posted to Indiana Courts

Friday, May 04, 2012

Ind. Law - "Middlebury man injured in motorized barstool crash"

A very brief story from Ashley Henderson of WSBT South Bend. A quote:

MIDDLEBURY, Ind. -- An Elkhart County man was injured Wednesday afternoon after police say he lost control of his motorized barstool.

According to the release, 53-year-old James Kleckner of Middlebury was riding a bar stool that had a small engine attached to it on Rachael Court, north of York Hills Drive, five miles east of Bristol.

Police say after Kleckner completed a curve on Rachael Court, he accelerated on a straight section of the road. He then lost control of the barstool and fell.

ILB Question: Do we need a law to regulate the use of motorized bar stools on city streets and highways?

Posted by Marcia Oddi on Friday, May 04, 2012
Posted to Indiana Law

Ind. Courts - Re: Payment of Marion County Judicial Slating Fees

Here is a letter dated April 23, 2012 from Adrienne L. Meiring, Counsel to the Indiana Commission on Judicial Qualifications, written in response to a request from Attorney Paul K. Ogden.

The 3-page letter begins:

The Indiana Commission on Judicial Qualifications has received and considered your letter dated January 11, 2012. In the letter, you request that the Commission revisit Advisory Opinion #1-92 in light of the twenty-year history since its enactment. You further request that the Indiana Supreme Court consider such opinion and make it binding and that the Supreme Court order any slating fees received by the chairs of the Republican and Democratic Parties pursuant to the 2012 election be returned to the judicial candidate's committee from which it was received.

In 1992, the Commission issued Advisory Opinion #1-92 [ILB: Here is 8-page Advisory Opinion #1-92.] to address whether the Commission believed a judge could contribute financially to a political candidate, party, or organization, consistent with the Code of Judicial Conduct, and whether payments in the form of assessments, slating fees, or other mandatory political payments were proper. The question required an analysis of Canon 7 A(2)'s language which permitted a judge who holds office filled by public election between competing candidates to contribute to a party or organization.

The letter distinguishes between a voluntary contribution vs. an assessment or slating fee. The letter continues:
[M]aking a voluntary contribution to a political party is consistent with the Code of Judicial Conduct, but paying an assessment or slating fee is not.
The letter closes:
Assessments or slating fees overwhelmingly tip this balance by suggesting to the public that a judicial candidate had to buy favor with the political party in order to obtain his/her judicial seat. Political parties certainly are allowed to decide whom to support and most likely want to give that support to active and contributing members of the party; nonetheless, this support cannot be conditioned on payment of an assessment or slating fee without undermining the very heart of what Canon 4 attempts to protect. In these situations, it is not unreasonable to expect that members of the public will view the judge as beholden to the party. Preventing such an impression and preserving public confidence in the judiciary are items that the Commission views as compelling interests.

Further, the Commission would emphasize that the crucial inquiry regarding contributions to political parties is not how they are labeled but whether the contribution is voluntary. Calling a payment a "mandatory contribution," as opposed to a "slating fee" does not make the payment any less inconsistent with Rule 4.1(A)(4). While not an exhaustive list, some of the factors the Commission believes are important to evaluate when considering whether a payment is voluntary include the timing of the payment, particularly if it must be paid by a certain time, such as before a slating convention; whether anyone from the political party communicated to the judicial candidate that the payment is expected; and whether the amount contributed by all judicial candidates during an election cycle is the same (assuming no further explanation for the coincidence).

As to your other requests, the Commission has no jurisdiction to require the political parties to return slating fees paid, nor does it have any specific means to request that the Supreme Court make the Commission's advisory opinions binding.

Posted by Marcia Oddi on Friday, May 04, 2012
Posted to Indiana Courts

Ind. Law - "Marion County Superior Court Judge Carol Orbison protests Wheat's early release" [Updated]

Updating the second part of this ILB from May 2nd, Dan McFeely reports today in the Indianapolis Star:

The judge who sentenced former Lawrence swim coach Chris Wheat to prison has told the Indiana Department of Corrections that allowing Wheat to leave prison early -- by using old college credits toward a new degree that cut his prison term -- is a violation of the spirit, if not the letter, of state law.

Marion County Superior Court Judge Carol Orbison exchanged e-mails with a DOC attorney on Wednesday and Thursday in which she said she was "deeply concerned" with the way state law was being interpreted for prisoners.

In essence she objects to the DOC's practice of allowing prisoners to apply old college credits as a way to get out of prison more quickly, as was the case with Wheat, who served less than two years of an eight-year sentence for sexual misconduct with a minor.

Wheat was released from state prison Thursday, according to Doug Garrison, a spokesman for the DOC.

In addition to the judge, the victim's family and a state lawmaker are hoping to work on strengthening the law next year to prevent this from happening again.

Citing an Appeals Court case (Miller v. Bryant), Orbison said the application of educational credits should be limited to those obtained "while incarcerated." In Wheat's case, his credits were from a previous degree earned in 1995 and applied to a new degree obtained by Oakland City University.

"This award of credit violates the intended purpose of the law as enunciated in the Miller case, if not the letter of the law," she wrote in the e-mail, which she shared with The Star. The law, she said, "contemplates that the work for which the credit time is awarded is work completed while confined by the Department of Corrections."

The DOC response, which she also shared with The Star, argued that the Miller case involved a person who had earned all of his credits prior to incarceration.

Wheat's case is not unique, a DOC attorney told the judge. Many offenders since the law was enacted in 1993 have achieved college degrees by incorporating college credits earned in the past. The law has never been modified to mandate anything different.

"We have treated Mr. Wheat in a manner consistent with thousands of similarly situated offenders. He has been dealt with no better, and no worse, than other persons who have earned college degrees," the DOC response said. "To single him out for disparate methodology for calculating earned credit time would seem to be inappropriate, and would subject this agency to a risk of substantial liability."

The ILB has located Miller v. Bryant, a 1995 COA opinion.

In Part II of the opinion, the Court quotes IC 35-50-6-3.3(c), which read:

(c) A person does not earn credit time under subsection (a) unless the person completes at least a portion of the degree requirements after June 30, 1993.
The opinion concluded:
The legislature imposed a temporal requirement to qualify for reduction which would ensure that attainment of the degree may have been motivated, at least in part, by I.C. 35-50-6-3.3. We therefore conclude that the statute was intended to provide incentive to further one's education while incarcerated. Mindful of the legislative intent and purpose underlying I.C. 35-50-6-3.3, we next address whether receiving a degree is "completing a portion of a degree" within the meaning of I.C. 35-50-6-3.3.

The term "completing" focuses on the actions of the prisoner. The statute was intended to provide incentive to prisoners to affirmatively act, i.e., to complete requirements for attaining a degree. Conferring an associate's decree upon Bryant, which occurred on July 23, 1993, was a ministerial act on the part of Ball State University, not Bryant, and required no action on Bryant's part. Presenting the degree to Bryant merely signified that Bryant had completed all portions of his degree requirements. Unfortunately for Bryant, he completed all tasks required of him which were necessary to earn his degree before the effective date of I.C. 35-50-6-3.3. There remained nothing for Bryant to do, i.e., no portion of the degree to complete, after the effective date of the statute.

We hold that, consistent with the legislature's intent in enacting I.C. 35-50-6-3.3, receiving a diploma does not constitute "completing a portion of a degree" within the meaning of the statute. We therefore reverse the trial court's determination that Bryant was entitled to a one-year sentence reduction. Reversed.

IC 35-50-6-3.3 has been amended several times since 1995. The language in effect now (scroll down to version b, eff. July 1, 2011 ) contains a similar provision at both subsections (f) and (g).

[Update] IC 35-50-6-3.3 was amended again this year, by HEA 1200-2012, SECTION 11. The changes are effective July 1, 2012. The change is to subection (j). But a reading of the entire section may be instructive.

Posted by Marcia Oddi on Friday, May 04, 2012
Posted to Indiana Law

Ind. Courts - "GOP Chairman Kyle Walker Sends Out Contemptible Mailer Attacking Republican Judicial Candidates "

That is the heading to this post this morning from Paul Odgen, one of the several unslated candidates running for the Marion County judgeship in next week's primary election. It begins (accompanied by photos of the brochure):

At least my [Ogden's] criticism of the slating process, where phony judicial endorsements are decided by county chairman and handed out for $12,000 apiece, is 100% true. GOP County Chairman Kyle Walker, however, doesn't have any problem misrepresenting details to slander an opponent. Witness the slam piece on Judge Orbison and myself. If there needs to be any more evidence that the Supreme Court should step in and put an end to Marion County Party Chairmen hand picking local judges, Walker provides it with this piece.
The unslated candidates have also been denied voter registration data equivalent to that provided to the slated candidates and brought a lawsuit. See this list of earlier ILB entries headed "Unslated judicial candidates file lawsuit against Marion County election boards."

Now, as a result of a massmailing this week, they have issued this press release announcing a press conference this afternoon. It begins:

Unslated Candidates Will Demand that the Marion County Election Board Force the Voter Registration Board to Follow Its Policy to Protect Voters’ Data

INDIANAPOLIS – 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, will hold a press conference on May 4, 2012, at 2:00 p.m. in front of the office of the Marion County Clerk at 200 Washington Street, Room W122, Indianapolis, IN 46204.

The candidates will demand that the Marion County Election Board enforce a new policy that prohibits the Marion County Board of Voter Registration from giving out most voter registration data. This follows a mass mailing of postcards by Voter Registration to all voters to confirm their registration and tell them where their polling place is. The postcard includes either the voter’s date of birth plus the last four digits of the voter’s Social Security Number or the voter’s driver’s license number, in violation of the new policy.

The five candidates, who filed a lawsuit against Voter Registration and the Election Board to gain access to voter registration data provided to endorsed candidates, had their request for an emergency injunction denied after the Election Board adopted a policy to restrict voters’ data. That policy prevents all voter registration information from being released other than the voter’s name and address. The policy specifically prohibits the release of a voter’s identification number, date of birth, or Social Security Number, even if that number only contains the last four digits. The policy was adopted on April 20, 2012.

The members of the Election Board defended the restrictive policy by saying that they wanted to protect private information that might create opportunities for identity theft. Voter Registration has just sent this private information through the mail on a postcard that anyone could read. The five candidates are very unhappy about this mistake.

Posted by Marcia Oddi on Friday, May 04, 2012
Posted to Indiana Courts

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

Updating two ILB entries from April 25th (here and here), the Fort Wayne Journal Gazette editorializes today (emphasis from ILB):

The Indiana Commission on Public Records is creating a statewide policy for retaining electronic records. Setting a clear and consistent policy for all government agencies to follow serves the best interest of the public, and commission members ought to start with the idea that most electronic records need to be kept.

State lawmakers made two changes to Indiana’s public records laws in the last legislative session:

•They confirmed that the commission has oversight responsibilities for electronic records.

•And they asked the commission to create the statewide policy on retaining electronic records.

The policy will determine which electronic records and communications that counties, cities and other public agencies need to save and for how long. The commission is scheduled to meet in July to discuss the policy. If it is adopted in July, the statewide rules would go into effect in August.

“Thirty days after we’ve approved it, it’s in effect. There is no longer any local adoption needed. It will be the law, the rules in every county,” said Jim Corridan, director of the Indiana Commission on Public Records.

Currently, when Hoosiers request an electronic record, they face the possibility of 92 different sets of rules, he said. “That was the problem we’re addressing.”

The statewide policy requires each government agency to identify the person responsible for keeping the agency’s electronic records. For some agencies it will likely be an IT leader and for others, such as a city or town, it may be the clerk-treasurer.

One of the objectives of the statewide policy is to distinguish between emails that discuss public business and need to be preserved and those that are “transitory” and may be discarded.

A post on the Indiana Law Blog last week asked an excellent question: “How would the emails that played such an important role in the Duke (Energy) /IURC scandal have been classified under this scheme?”

The scandal, which resulted in Gov. Mitch Daniels’ firing David Lott Hardy, a Fort Wayne attorney, as chairman of the Indiana Utility Regulatory Commission in October 2010, first came to light after the Indianapolis Star published emails between Hardy and former Duke Energy Vice President James Turner. Some of the e-mails did not discuss pertinent public IURC business. But they did serve as evidence of the inappropriate relationship between company leaders and public officials responsible for regulating the energy company.

“We are going to try to craft a policy that makes it very clear,” Corridan said. “But the reality is there is no way to force compliance at every level of government.” To encourage compliance, he said the commission is also stepping up education efforts.

Commission members should keep the Duke Energy scandal in mind as they create the statewide policy. And they should err on the side of the public’s right for access to electronic records when there is doubt.

Posted by Marcia Oddi on Friday, May 04, 2012
Posted to Indiana Government

Ind. Law - More on "Lawmakers didn’t foresee EACS dilemma"

Supplementing this ILB entry from yesterday, WANE Fort Wayne's Randy Spieth has this story:

A state law passed last year is preventing East Allen County Schools from selling Monroeville Elementary to the Catholic Diocese of Fort Wayne-South Bend.

The law, part of the 2011 Indiana General Assembly, is House Bill 1002 .

"The law is fairly clear," Russ Simnick, the president of the Indiana Public Charter Schools Association, said. "If a school district closes down a building, then it should remain on this list to make it available to charter schools for 48 months."

EACS closed Monroeville Elementary at the end of the last school year. * * *

Simnick said the association has had to reference the law to a school, and the school's potential buyer twice. Both situations took place in Allen County.

ILB: The other situation involved a lawsuit filed to stop a transfer of title of a vacant school building to the Fort Wayne-Allen County Airport Authority, as noted in yesterday's ILB post.

The 48-month provision may be found at IC 20-26-7-1(i). Subsections (d) through (i) were added by SECTION 27 of PL 1002-2011.

Posted by Marcia Oddi on Friday, May 04, 2012
Posted to Indiana Law

Thursday, May 03, 2012

Courts - “Lasting credibility on an issue such as judicial restraint requires us to practice it, as the old saying goes, when the shoe pinches as well as when it comforts.”

Great quote from "J. Harvie Wilkinson, the federal appeals judge from Charlottesville, Va." in this WSJ LAW Blog entry by Jess Bravin.

Posted by Marcia Oddi on Thursday, May 03, 2012
Posted to Courts in general

Law - "Westlaw To End Free Printing For Law Schools"

That is the headline to this entry in the Law Librarian Blog.

The entry links to an equally interesting earlier entry, headed "Bloomberg Law Makes It's Push Into Law Schools."

Posted by Marcia Oddi on Thursday, May 03, 2012
Posted to General Law Related

Ind. Courts - "IndyCar tabs retired Indiana Supreme Court justice to hear Chevrolet appeal"

From the AP, via the Washington Post, some quotes from this unattributed story:

INDIANAPOLIS — IndyCar has tapped a retired Indiana Supreme Court judge to hear Chevrolet’s final appeal of an engine change the series allowed Honda. * * *

Chevrolet’s final appeal will be heard next Wednesday in Indianapolis by retired Indiana Supreme Court Justice Theodore R. Boehm, who retired in 2010. * * *

IndyCar president of operations Brian Barnhart could have heard the appeal himself, but instead elected to choose an independent official. Boehm’s decision will be considered final and binding.

Boehm has a sports background. He was chairman and CEO of the organizing committee for the 1987 Pan American Games in Indianapolis, and was the first president and CEO of the Indiana Sports Corp.

Posted by Marcia Oddi on Thursday, May 03, 2012
Posted to Indiana Courts

Vacancy on Supreme Court 2012 - Not "lost to history" after all

In this May 1st entry I wrote:

Actually, J. Massa's first appearance was in the oral argument held at Martin University on April 20th, as I noted at the time. Unfortunately, that oral argument was not recorded and so has been lost to history.
But I have just received this note:
Marcia,

We have now posted the oral argument from Martin University. It takes us a little more time than usual to post arguments when the Court goes on the road. We are very appreciative of Martin University for getting us this video.

Kathryn Dolan
Indiana Supreme Court
Public Information Officer

The case is Michael J. Lock v. State of Indiana, the issue involved whether a Yamaha Zuma was a "motor vehicle" under the statute. Here is the videocast.

THIS was Justice Mark Massa's first oral argument as a member of the Supreme Court of the State of Indiana.

Posted by Marcia Oddi on Thursday, May 03, 2012
Posted to Vacancy on Supreme Court 2012

Courts - "Recording Police v. Recording Citizens Debated in 7th Circuit and in Illinois Legislature"

On Sept. 14, 2011 the ILB posted this entry on the 7th Circuit oral argument, held the previous day, in ACLU v. Alvarez. Despite the 7th Circuit's generally fast turn-around times, this opinion has yet to issue.

Last weekend the Indiana Society of Professional Journalists gave its annual awards. Looking through the 46-page list of awards (with an amazing number going to Angie's List!), my eyes stopped at p. 23:

Category 33B: Continuing Coverage, Outside Indianapolis market TV stations
1st Place: Patrick Fazio, Bob Bruce, Tony Grant
“Recording Police Illegal”
WTWO-­‐TV
Judges’ Comments: The kind of story we should be doing more of. Extensive, thorough coverage of an underreported topic.
I located the over 17-minute story on YouTube. It is definitely worth watching, although IMHO could stand some shortening.

The MLRC MediaLawLetter has this 2-page article in its October 2011 issue. A quote:

During what has now become a highly publicized exchange [ILB - eg this entry], Judge Posner immediately interrupted the argument with “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.” ACLU attorney Richard O’Brien countered, “Is that a bad thing, your honor?” To which Judge Posner stated, “Yes, it is a bad thing. There is such a thing as privacy.” (Oral Argument at 8:04 to 8:15). * * *

Judge David F. Hamilton pressed Assistant State’s Attorney Jim Pullos to articulate the “legitimate privacy interest in conversations that are going on in public with a public official that are audible to passerby.” The judge also questioned him about the police exemption to the Act whereby they are permitted to record others without their consent under certain circumstances.

Judge Diane S. Sikes also questioned Mr. Pullos about another so-called exemption to the Act allowing journalists to make such recordings without permission in light of the broad ruling in Glik that recognized citizen-journalists.

Here is the 9/13/2011 7th Circuit oral argument.

Finally, Robyn Hagan Cain posted an entry headed "Recording Police v. Recording Citizens Debated in Courts, IL Legislature," in the FindLaw 7th Circuit News and Information Blog.

Posted by Marcia Oddi on Thursday, May 03, 2012
Posted to Courts in general

Ind. Decisions - "Lawyer Gets Prison Time For Cheating Alzheimer's Patient: Stacy H. Sheedy Stole Thousands"

Updating earlier ILB entries, WRTV6 reports this afternoon:

INDIANAPOLIS -- An Indianapolis lawyer who cheated an Alzheimer's patient out of tens of thousands of dollars and drained another family's trust was sentenced Thursday to eight years in prison.

Stacy H. Sheedy, 51, who is also an accountant, pleaded guilty to two counts of theft.

She apologized in court, saying she knows she shamed herself and all those in her profession. * * *

During the course of the investigation, investigators also examined Sheedy's role as trustee of a separate family trust, for which she had served as trustee since November 2007.

A brokerage account within the trust started at $501,000 when Sheedy became trustee, but was drained to only $168 during her tenure, investigators said.

When family members asked why they were no longer receiving brokerage statements from the account, Sheedy told them she had invested the funds in a bond fund and periodically sent them statements from the Wealth Council Indiana Small Cap Bond fund, investigators said.

According to the Indiana Secretary of State's Office, no such fund exists.
Investigators said Sheedy made unauthorized withdrawals of $412,500 from the trust account.

Posted by Marcia Oddi on Thursday, May 03, 2012
Posted to Ind. Trial Ct. Decisions

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

For publication opinions today (2):

In M.O. v. Indiana Dept. of Insurance, Indiana Patient's Compensation Fund, a 12-page opinion, Sr. Judge Sharpnack writes:

This case presents issues of which of two statutes sets the interest rate on payments by the Indiana Department of Insurance Patient’s Compensation Fund (“the Fund”) to successful malpractice claimants and of when interest begins to accrue on payments due. The trial court concluded that Indiana Code section 24-4.6-1-101 (1993), with its eight percent rate, applied and that interest began to accrue on the fifteenth day of the month following the end of the claim period in which the claim was filed with the Fund. We agree and affirm.
In Meschach Berry v. State of Indiana, an 8-page opinion, Judge Riley writes:
Appellant-Defendant, Meschach Berry (Berry), appeals his conviction for possession of marijuana, a Class A misdemeanor, Indiana Code § 35-48-4-11(1). We reverse. * * *

A valid inventory search is a “warrantless search of a lawfully impounded automobile if the search is designed to produce an inventory of the vehicle’s contents.” * * *

Berry contends that Officer Sherrell’s decision to impound his vehicle was unreasonable because no statute expressly required his vehicle to be impounded and there was no community caretaking function justification present. * * *

Here, Berry argues that the State provided no evidence that Officer Sherrell’s decision to impound Berry’s vehicle was consistent with standard procedures followed by the Indianapolis Metropolitan Police Department. We agree. Officer Sherrell testified that he chose to impound Berry’s vehicle because Berry “didn’t have a valid license and he didn’t have proof of insurance for the vehicle.” * * * Consequently, we conclude that the State failed to prove that an exception to the warrant requirement existed at the time of the inventory search of Berry’s car.

CONCLUSION. Based on the foregoing, we conclude that the search of Berry’s vehicle violated the Fourth Amendment of the United States Constitution. Therefore, the trial court abused its discretion by admitting evidence obtained through an inventory search of Berry’s automobile. Reversed.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Gregory Foster v. State of Indiana (NFP)

Travis Moore v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 03, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Still more on: "Clark airport loses eminent domain lawsuit, owes $600,000"

Updating this earlier ILB entry from Jan. 19, 2012, Braden Lammers reports in the Jeffersonville News & Tribune today on the continuing dispute. Some quotes:

Clark County entered the suit when John W. Mead, attorney for Margaret Dreyer, the property owner, filed a motion against the county in order to receive the remaining money owed to his client. The Clark County Board of Aviation Commissioners had already paid Dreyer $203,605 for a portion of the property, leaving a $661,395 remainder.

Clark County Attorney Greg Fifer argued Wednesday that the trial court, which was Clark County Circuit Court No. 1, lacked “subject matter jurisdiction” to hear the case. He explained that the court should not have heard the case because a written exception to the appraisals was not filed within 20 days by Dreyer. He continued that the first appraisal the Dreyers received was on May 7, 2009, by certified mail — which is a requirement under state statute.

“We think the date exceptions could have been filed is no later than May 27 [2009],” Fifer said.

The exception was not filed by Mead until July 7, 2009, according to Clark County Court records.

“This case was totally over at that point,” Fifer said.

But the county did not enter the legal proceedings until the certified judgment was entered to claim the $661,395.

Clark County Circuit Court No. 2 Judge Jerry Jacobi questioned the timing of the county raising the issue that the original exception was not timely and asked why the county had not intervened in the suit earlier.

“At what point is it too late?” he asked Fifer.

Fifer argued that under state law, it’s never too late to raise the question of whether or not the court had jurisdiction to hear the case.

“I won’t rule until you find such a case,” Jacobi said, in response to Fifer.

But Mead argued that the Dreyers objected to the appraisal in March 2009, before the official document was ever filed.

“That ... constitutes a valid exception,” he said.

In addition, Mead argued that the first appraisal was set aside by Clark County Circuit Court No. 1 Judge Dan Moore, a second appraisal was ordered in September and a certified letter of that appraisal amount was never sent to the Dreyers.

“The time period never began to run,” he said.

Mead added that the county was not timely in entering the suit.

“The jurisdictional question had to be filed at the earliest opportunity, which would’ve been in 2009,” he said. “It’s not when Mr. Fifer and the county finds out it has a judgment entered against it for $865,000.”

Posted by Marcia Oddi on Thursday, May 03, 2012
Posted to Indiana Government

Ind. Law - "Lawmakers didn’t foresee EACS dilemma"

Today Niki Kelly and Devon Haynie of the Fort Wayne Journal Gazette report in a lengthy story that begins:

St. Joseph Elementary, a five-classroom school in Monroeville, turns 100 this year. And members of the parish that manages the school had a grand plan to mark the occasion.

Last summer, the Rev. Lourdino Fernandes learned that a former elementary school in the same neighborhood was up for sale. The idea of buying the larger, more modern school was lofty, he thought, but just the kind of goal needed to re-energize the parish.

He pitched it. And soon St. Rose of Lima Church members, many of whom had dug deep into their pockets, raised about $520,000 to buy and maintain Monroeville Elementary from East Allen County Schools.

“People who couldn’t pay any money before, suddenly they found money to pay,” Fernandes said. In mid-April, the East Allen board agreed to sell the closed school to the Fort Wayne-South Bend Catholic Diocese for $189,000. But now the deal, which has not yet closed, may fall through.

The Indiana Public Charter Schools Association, the state’s leading pro-charter group, is asking both parties to back out, alleging the sale violates state law. The problem arises from a 2011 law passed by the General Assembly making unused school buildings available for possible charter tenants for $1.

GOP House Speaker Brian Bosma authored the legislation and said Tuesday the intent was to address situations in which districts were purposely refusing to sell buildings to charter schools to avoid competition. Only anecdotal evidence was offered in hearings on the legislation, and it focused on urban areas such as Indianapolis and Gary.

The law that eventually passed requires districts to put unused buildings on a list with the state Department of Education so that anyone interested in creating a charter school can find a possible location.

A district can reclaim the school on the list if it wants to use it for classroom instruction again. Other than that, though, the building has to sit unused for four years before it can be sold.

Legislators clearly didn’t envision a case such as in Monroeville, where no charter school has expressed interest in the rural Allen County town of 1,235.

“Everyone is extremely upset, they are extremely disappointed,” said Lori Wagner, a member of the parish. “The school has been empty for a year and nobody has put forth any interest. We’re pretty upset they are trying to do this on a technicality and not on a practicality.”

The story follows on another FWJG story, from December 19, 2011, where according to a press release: "the Indiana Public Charter Schools Association (IPCSA), today announced that the IPCSA has filed a lawsuit to stop a transfer of title of a vacant school building to the Fort Wayne-Allen County Airport Authority ("Airport Authority") because it violates a new state law." See also this Dec. 20th entry.

Posted by Marcia Oddi on Thursday, May 03, 2012
Posted to Indiana Law

Stage Collapse - More on: Emergency rule approved this morning

Updating yesterday's ILB entry, Maureen Hayden of CNHI had a long story yesterday in the New Albany News & Tribune headed "State approves new emergency stage rules: Some worry about financial impact on small town festivals." Some quotes:

The new emergency rules require many events that are open to the public to have engineer-approved plans for their stage rigging systems, along with emergency evacuation plans. The rules also require event organizers to have the stage rigging inspected after it’s erected and to maintain it to ensure its safety. The stage rigging will have to meet certain standards for high winds, snow, and seismic activity.

Officially, the emergency rules go into effect today. But the Department of Homeland Security and the State Fire Marshal’s office began inspecting such structures in April, in anticipation of the new rules.

Tami Ehinger, chairwoman of the Orleans Dogwood Festival, said she was surprised when the state temporarily shut down her festival stage Tuesday after she couldn’t supply the state inspector with the detailed site plans that are now required under the new rules. At the time, the new rules hadn’t been published or even approved.

The State Fire Marshal’s office agreed to contact the engineering firm that worked with the contractor that put up the stage rigging. They got what they needed, then gave Ehinger the clearance she needed.

“We weren’t trying to avoid compliance,” she said. “We were not even aware of what needed to do.”

Her concern now is that the new rules that require engineer-approved plans and inspections will increase the festival’s costs in coming years. “We worried that our stage costs are going to go up,” she said. “We’re a small festival on a small budget.”

The temporary rules approved Wednesday are in effect until January 2014. The Indiana General Assembly is expected to adopt more permanent rules after a legislative study committee looks at the issue this summer.

David Hannum, a Terre Haute engineer and head of the Fire and Building Safety Commission charged with developing the emergency rules, said there are exemptions in the emergency rules that may help minimize the costs for some small fairs and festivals.

For example, a small stage with overhead rigging less than 20 feet tall may be exempt if there is a buffer zone around the stage that extends 8 feet beyond the height of the rigging to protect fans in case of a collapse.

Hannum said the new rules may need to modified after the legislative study committee looks at how they were enforced this summer. “The committee is going to look at it to see if this is Band-aid or a solution,” Hannum said.

Posted by Marcia Oddi on Thursday, May 03, 2012
Posted to Stage Collapse

Ind. Decisions - "Jury rules in favor of Alcoa in $12 million lawsuit over disposal of industrial waste"

That is the headline to a long story yesterday in the Evansville Courier & Press, reported by Mark Wilson. Some quotes:

EVANSVILLE — Jurors ruled in favor of Alcoa in a $12 million lawsuit filed by a Chandler, Ind., couple who claimed that waste the company disposed of at a former Warrick County coal mine caused the rare cancer of a former miner there.

The six jurors deliberated for about two hours Tuesday afternoon following a trial that lasted more than two weeks. Although the lawsuit was filed in Warrick County, it went to trial in Vanderburgh County with Circuit Court Judge Carl Heldt presiding as special judge.

Filed in January 2006, the lawsuit charged Bil and Kim Musgrave were exposed to the chemicals through years of recreating at the mine, causing his cancer of the bile duct, which is a rare form of liver cancer. * * *

Attorney Peter Racher, who led the Musgraves’ team of lawyers, declined to comment on the verdict. He is representing a similar lawsuit in Warrick Circuit Court on behalf of more than 40 people, some of whom were witnesses in the Musgraves’ trial.

Posted by Marcia Oddi on Thursday, May 03, 2012
Posted to Ind. Trial Ct. Decisions

Wednesday, May 02, 2012

Courts - DC local judges chat with citizens on Law Day

The Blog of Legal Times reports on a good idea:

An hour-long Twitter chat with the chief judges of Washington's local courts Tuesday afternoon covered the relatively mundane - no, the D.C. courts system can't reserve parking spaces for food trucks - to the substantive, with the judges weighing in on everything from cameras in the courts and services for domestic violence victims to delays in admitting attorneys to the bar.

Using the hashtag #AskTheCJs, District of Columbia Superior Court Judge Lee Satterfield and District of Columbia Court of Appeals Chief Judge Eric Washington celebrated this year's Law Day by fielding questions from reporters, attorneys and residents. * * *

The tweets didn’t specify if one judge in particular was responding, but court spokeswoman Leah Gurowitz said the two judges collaborated on what to say and dictated their responses to her to type and tweet. In response to a question from the National Center for State Courts on whether the court would hold another chat in the future, the judges replied that they “will definitely” do another Q&A, but haven’t planned it yet.

Posted by Marcia Oddi on Wednesday, May 02, 2012
Posted to Courts in general

Ind. Gov't. - "State Senator Kenley: Third Grade Reading Exam Represents State Overreach"

Kyle Stokes of State Impact reports today in a story that begins:

The chairman of the Indiana Senate’s Appropriations Committee says state education officials are out of bounds in using a bill he sponsored in 2010 as the legal basis for a controversial statewide reading test, the IREAD-3.

State Sen. Luke Kenley, R-Noblesville, says the General Assembly wanted to make “a strong statement that reading was important,” yet sought to avoid creating a single test to judge whether a student could be held back.

But that’s exactly the fear of many parents, teachers, and district officials: if the Indiana third graders who failed the IREAD-3 in March don’t pass a retake this summer, the state will require these students to take third grade again.

ILB: Here are the words of the statute, IC 20-32-8.5-2, eff. July 1, 2010:
Sec. 2. The plan required by this chapter must include the following:
(1) Reading skill standards for grade 1 through grade 3.
(2) An emphasis on a method for making determinant evaluations by grade 3 that might require remedial action for the student, including retention as a last resort, after other methods of remediation have been evaluated or used, or both, if reading skills are below the standard. Appropriate consultation with parents or guardians must be part of the plan.
(3) The fiscal impact of each component of the plan, if any. In determining whether a component has a fiscal impact, consideration shall be given to whether the component will increase costs to the state or a school corporation or require the state or school corporation to reallocate resources.

Posted by Marcia Oddi on Wednesday, May 02, 2012
Posted to Indiana Government

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

For publication opinions today (2):

In Andrew C. Kesling, individually and as Trustee of the Andrew C. Kesling Trust v. Peter C. Kesling, et al., a 38-page opinion in an interlocutory appeal, Judge Brown writes:

In this interlocutory appeal, Andrew C. Kesling, individually and as Trustee of the Andrew C. Kesling Trust Dated March 28, 2001 (the “Trust”), appeals the judgment of June 23, 2011 (the “Judgment”) in favor of his father, Peter Kesling.1 Andrew raises two issues which we consolidate and restate as whether the court abused its discretion in concluding that Peter was entitled to rescission of agreements entered into on June 25, 2004. We reverse and remand.
In Leondre Woodson v. State of Indiana , a 12-page opinion, Judge Bradford writes:
Appellant-Petitioner Leondre Woodson appeals from the post-conviction court’s denial of his petition for post-conviction relief (“PCR”), in which Woodson claims that he received ineffective assistance of trial counsel. We affirm. * * *

Woodson has failed to establish that his consent was invalid, and has therefore not shown that he was prejudiced by his trial counsel’s failure to preserve the claim that it was. Woodson has not established that he received ineffective assistance of trial counsel.

NFP civil opinions today (1):

Todd Edward Lang v. Jessica Lynn Lang (NFP)

NFP criminal opinions today (3):

Eric R. Jeter v. State of Indiana (NFP)

Marcie L. Grant v. State of Indiana (NFP)

Ronnie Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 02, 2012
Posted to Ind. App.Ct. Decisions

Stage Collapse - Emergency rule approved this morning

Access it here. For background, see this April 27th ILB entry.

[More] Here is the WRTV story from noon today.A quote:

Members of the Indiana Fire Prevention and Building Safety Commission voted unanimously Wednesday morning in favor of the regulations that board chairman David Hannum says will take effect Thursday.

The rules require many events to have engineer-approved plans for their rigging systems along with emergency plans. Smaller fairs and festivals would be exempt from most of the regulations if they create a buffer zone around their stages that extends eight feet beyond the height of the rigging to protect fans in case of a collapse.

The rules are primarily concerned with equipment not attached to a stage. That equipment is now defined as a Class 1 structure, and it will be regulated and inspected for the first time in Indiana.

This could mean permanent towers, booms, ramps, platforms, overhead assemblies or rigging used in connection with an outdoor performance.

The Indiana Dept. of Homeland Security or state fire marshal personnel will inspect the stage equipment, and any venue planning an event which uses it will have to notify the state fire marshal within two weeks of the event.

The new rules also mean that every festival and fair must have an amusement entertainment permit from the fire marshal's office before it can open.

Unfortunately, the WRTV story has an incorrect link to what it says are the "new rules." Instead, use this link, which is also at the beginning of this ILB entry.

See also this new story from John Tuohy of the Indianapolis Star.

Posted by Marcia Oddi on Wednesday, May 02, 2012
Posted to Stage Collapse

Ind. Law - Shots fired at lawyer's home: Police suspect connection to March attack on colleague at same law firm

Updating yesterday's entry, the Fort Wayne Journal Gazette today has a story by Dominic Adams. Some quotes:

While the circumstances are different, police believe that gunshots fired at the home of a Fort Wayne attorney are related to the shooting of his colleague in March. * * *

"We do believe that the home was targeted," officer Raquel Foster, Fort Wayne police spokeswoman, said of Goeglein's home. Investigators believe the two shootings are connected. * * *

One man who lives in Kuker's neighborhood said he is relieved knowing that police believe Tuesday's event is connected to the law firm, because he has nothing to do with Faegre Baker Daniels.

"It's still a little unsettling that that kind of thing is happening in the neighborhood," the man said, declining to give his name. "I've noticed things that I may not have noticed before – a car parked in front of the house – that kind of stuff. I'm more aware, but it's not something that dominates my thinking."

Posted by Marcia Oddi on Wednesday, May 02, 2012
Posted to Indiana Law

Ind. Law - Reactive legislation: two stories reflecting different responses [Updated]

Monday WANE Fort Wayne ran a special report on young Amish buggy drivers. Yesterday Adam Widener followed up:

Kids as young as 10-years-old were spotted driving buggies on county roads and state highways. Both an Indiana state senator and state representative think it would be difficult and widely unpopular to regulate the age of the buggy driver.

Driving around rural northeast Indiana, you've certainly seen them. The Amish lead vastly different lifestyles and use vastly different modes of transportation.

The only thing legally required for buggies is the orange triangle on the back, lights at night, and a license plate in Allen County. Anyone can drive them on any road, except the interstate.

After spotting kids 12, 11, and as young as 10-years-old sharing the roads with cars, trucks, and semi’s, 15 Finds Out brought the issue to lawmakers.

“When it comes to the Amish, there's a lot of resistance by them to do any kind of regulation and we just kind of look the other way. It's kind of bad especially when you bring up the story of the 10-year-old,” said Tom Wyss, Republican state senator for Fort Wayne. “We've tried to take care of their religious concerns and stay out of the Amish community with a bunch of rules and regulations.”

Wyss said lawmakers have in the past tried to get the Amish drivers’ licenses. That attempt fell through since the Amish’s religious beliefs don’t allow facial photography. Wyss said lawmakers even tried to just get their photograph in a database, not on the actual license. But the Amish objected and there hasn’t been an agreement on the issue.

“It's a tough issue. I admit that. It's something that if we try to take up that issue I'm sure there would be a lot of fights and a lot of people that disagree with our approach on that,” Wyss said. “We're hoping the parents will be considerate of how young they allow individuals to drive those buggies…that creates a big danger.”

State Representative David Wolkins (R-Winona Lake) doesn’t think age is an major factor for Amish drivers being safe on the roadways.

“Every time something is dangerous, we don't as Hoosiers go out and pass laws against it,” Wolkins said. “The Amish way of life is a respected way of life in northern Indiana and we have to respect that as best we can.”

Though both legislators agree it's dangerous, for now they don't see any changes in the future. They see lawmakers keeping the law as it is for the people who live in "the way it was."

“They've been doing what they've been doing for 100 plus years. There weren't vehicles when they first started and it's just something that government has never tried to address,” Wyss said. “I really don't know how we can address it and do it successfully.”

In contrast, see this May 1, 2012 Sentencing Law Blog entry, headed "Indiana legislators (over?) reacting to pair of sex offenders earning early prison release." Prof. Berman introduced the AP story with:
This new AP story, headlined "Early prison release for sex offenders irks lawmakers," provides a telling and notable how sex offenders can get into trouble and prompt a harsh legislative response for, in essence, just being good prisoners.
The ILB recalls the Paige Grable case in 2007, which also dealt with the educational-credit program and caused outcry at the time, leading to the passage in 2008 of a bill "clarifying how education credits can be used to reduce an inmate's prison term."

[Updated on 5/3/12] See this Fox59 story today by Jake Miller, headed "Two convicted sex offenders could be released Thursday: Two men convicted of sex crimes against children will get out of prison early, and they are several years short of serving their full sentences."

Posted by Marcia Oddi on Wednesday, May 02, 2012
Posted to Indiana Law

Ind. Courts - New Chief Justice to be selected May 15? Correct

From a press release from the Courts:

On Tuesday, May 15th the Judicial Nominating Commission will vote to select Indiana’s next Chief Justice. The meeting is open to the public and press. It will be held in Room 319 of the State House from 10:00 a.m.-11:30 a.m. EDT.

The Indiana Judicial Nominating Commission recruits candidates for appellate level judicial positions. The Commission also appoints the Indiana Chief Justice. Detailed information on the 7-member Commission, the selection process for Indiana’s Chief Justice and the “Missouri Plan” merit selection system used in Indiana can be found in the current issue of Indiana Court Times magazine here .

As in the past, all current members of the Supreme Court have been invited to share their thoughts with the Commission members during the May 15th meeting. The Commission has asked the Justices to speak about the qualities and attributes important in a Chief Justice.

At 11:30 a.m. the Commission will go into executive session for discussion. Following the executive session, the Commission will convene in a public session to vote on its selection of Indiana’s Chief Justice.

See earlier ILB entry from April 30th.

Posted by Marcia Oddi on Wednesday, May 02, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Courts - Still more on: Task Force created to evaluate the Marion County Small Claims Courts submits its report

Carrie Ritchie reports in today's Indianapolis Star on the Marion County Small Claims Task Force report.

Indy 6 TV has this story and video last evening.

Posted by Marcia Oddi on Wednesday, May 02, 2012
Posted to Indiana Courts

Tuesday, May 01, 2012

Ind. Courts - More on: Task Force created to evaluate the Marion County Small Claims Courts submits its report

Eric Berman of WIBC has this story on today's press conference, along with audio and a photo.

Posted by Marcia Oddi on Tuesday, May 01, 2012
Posted to Indiana Courts

Ind. Law - "After two incidents, we are extremely concerned with these developments and the safety and security of our professionals and staff. "

So reads a statement (via FWJG) issued this afternoon by Faegre Baker Daniels. Some quotes:

This morning, gunshots were fired through a window at the home of Jeffrey A. Goeglein, an associate in the firm's Fort Wayne office. Fortunately, neither Jeff nor his family was injured in the incident. On the morning of March 27, David J. Kuker, a partner at the firm, was shot by an intruder at his home.

"After two incidents, we are extremely concerned with these developments and the safety and security of our professionals and staff. We are implementing further security measures to provide added protection for our people," said Andrew Humphrey, managing partner at Faegre Baker Daniels. "We are committed to supporting the investigation, and strongly encourage anyone who may have information about either incident to contact the Fort Wayne Police Department."

See also this ILB post from earlier today.

Posted by Marcia Oddi on Tuesday, May 01, 2012
Posted to Indiana Law

Ind. Courts - Task Force created to evaluate the Marion County Small Claims Courts submits its report

The Task Force created to evaluate the Marion County Small Claims Courts has issued its 33-page report. The report was submitted by Judge John G. Baker and Judge Betty Barteau. (Also available is a 453-page Appendix of background materials, divided into three parts.)*

The task force sets out three plans to address the problems identified in its report:

The Report contains 79 specific findings, followed by this Summary:
The Task Force's investigation has uncovered significant and widespread problems in the operations of the Marion County Small Claims Courts. More particularly, it is apparent that some township trustees interfere with the efficient and independent operation of the township courts by maintaining control over budgeting matters and preventing judges from managing court employees.

In addition, it appears to some debtor-defendants that creditors' attorneys have special access to, or special relationships with, some of the township courts. The appearance of a special relationship is unfortunately strengthened by large-volume case filers' ability to forum shop for whichever township court appears most receptive to their cases or exercises less scrutiny over settlements. In addition, unrepresented parties are frequently not informed of their rights or informed of township court procedures. Indeed, some defendants report difficulties in timely receiving notice of the claims filed against them.

Furthermore, the current practice of allowing all small claims cases except for landlord-tenant disputes to be filed in any township court can impose significant travel hardships on litigants.

Finally, the appeals process imposes upon appellants an extra step, specifically de novo review in the Marion Superior Court, which appellants in other counties are not required to take.

These problems need to be addressed comprehensively and in a timely manner. The township court judges are addressing some of these problems, but more thorough and systematic reforms are needed.

Starting on p. 18, the Report outlines the implementation of either Plan A (incorporate township courts into Marion County Superior Court) or Plan B (reform the existing township courts).

On page 19, the Report states: "Regardless of whether Plan A or Plan B is chosen, or even if neither is chosen, the following reforms should be implemented as soon as possible. None of these changes necessarily require statutory amendments or rule changes, although some will require the cooperation of other entities." A number of good suggestions follow on court management, court procedures, litigants' rights, court forms, court website and small claims manual. In addition:

Suggestion 8 is "The township court judges should not practice law in another township.

Suggestion 10: "Small Claims Clinic: The Indiana University Robert H. McKinney School of Law should consider creating a Small Claims Clinic through which supervised law students could assist unrepresented defendants."

Beginning on p. 20 are the detailed implementation plans for Plan A and Plan B, plus Part C - complementary reforms. Just to list the outline for Plan A ...

PLAN A: INCORPORATE THE TOWNSHIP COURTS INTO THE MARION COUNTY SUPERIOR COURT

1. The township courts will become the Small Claims Division of the Marion County Superior Court.

2. As with other courts in the Marion County Superior Court system, the county will be responsible for funding the Small Claims Division.

3. The county executive and the county's fiscal body, with input from the Marion Superior Court, will be responsible for providing facilities for the courts.

4. As judges of the Marion County Superior Court, the Small Claims Division judges will serve full-time, with salaries fixed by statute.

5. The township courts will become courts of record, and appeals from those courts will go directly to the Court of Appeals.

6. The Small Claims Division's jurisdiction shall include traffic infractions.

In conclusion, the Task Force has done a very thorough and well-documented study, and presented it well.

_______
* Among the materials in Part 3 of the Appendix are the Marion County Small Claims Court Litigants' Manual; a Report on Landlord-Tenant Court Proceedings in Indiana; and the March 15, 2012 State Board of Accounts Report. And the July 18, 2011 Wall Street Journal story.

Posted by Marcia Oddi on Tuesday, May 01, 2012
Posted to Indiana Courts

Ind. Law - "A co-worker of a Fort Wayne attorney who was seriously injured in a March shooting woke this morning to the sound of gunfire."

Updating this ILB entry from March 28th, the Fort Wayne Journal Gazette has this late morning story headed "Shots fired into home of 2nd lawyer in firm." A quote:

Police were called to the 800 block of Blackthorn Cove at 5:40 a.m. after the lawyer found two holes in a rear window and saw someone riding a bicycle on the sidewalk behind his home, according to a statement issued by the Fort Wayne Police Department.

No injuries were reported.

A canine unit followed a track southeast down a sidewalk and then east to a dead end in the area of 1000 Ivy Creek Cove, the statement said.

Investigators are exploring the possibility that this might be related to a shooting on March 27 in the nearby Shorewood subdivision, police said. Both the shooting victim, David Kuker, and today's homeowner are both employed at the Faegre Baker Daniels law firm.

Posted by Marcia Oddi on Tuesday, May 01, 2012
Posted to Indiana Law

Environment - "An Underground Fossil Forest Offers Clues on Climate Change"

W. Barksdale Maynard's long, fascinating story today in the weekly Science Section of the NY Times begins:

In the clammy depths of a southern Illinois coal mine lies the largest fossil forest ever discovered, at least 50 times as extensive as the previous contender.

Scientists are exploring dripping passages by the light of headlamps, mapping out an ecosystem from 307 million years ago, just before the world’s first great forests were wiped out by global warming. This vast prehistoric landscape may shed new light on climate change today.

Dating from the Pennsylvanian period of the Carboniferous era, the forest lies entombed in a series of eight active mines. They burrow through the rich seams of the Springfield Coal, a nationally important energy resource that underlies much of Illinois and two neighboring states and has been heavily mined for decades.

Pushed downward over the ages by the crushing weight of rock layers higher up, the Springfield forest lies at varying depths, 250 to 800 feet underground. The researchers have only sampled it so far, in the vicinity of Galatia, Illinois, but they think it extends more than 100 miles in one direction; its width has not been ascertained. An earlier discovery by the same team, the Herrin Coal forest farther north in Illinois, is just two miles long.

“Effectively you’ve got a lost world,” said Howard Falcon-Lang, a paleontologist at Royal Holloway, University of London, who has explored the site. “It’s the closest thing you’ll find to time travel,” he added.

ILB: The graphic with the story shows that "large fossilized forest buried along with an ancient river" continues into SW Indiana - Princeton, Oakland City, etc.

Posted by Marcia Oddi on Tuesday, May 01, 2012
Posted to Environment

Vacancy on Supreme Court 2012 - Justice Massa formal swearing-in to be Monday, May 7th

From a news release:

Mark Massa will be sworn-in as Indiana’s 107th Justice on May 7th in Indianapolis. Acting Chief Justice Brent E. Dickson announced the date and invited the public to watch a live webcast of the ceremony at courts.in.gov.

Monday, May 7th
2:00 p.m. EDT
Supreme Court Courtroom
State House, 3rd Floor

The one-hour ceremony will include remarks from Governor Mitch Daniels, former gubernatorial advisor Mark Lubbers and former Marion County Prosecutor Scott Newman. Governor Daniels named Mr. Massa to succeed Chief Justice Randall T. Shepard, who retired in March.

[UPDATE: BTW, in Upcoming Oral Arguments this week, I note that the oral argument this Thursday in Plank will be Justice Massa's first appearance on bench.

Actually, J. Massa's first appearance was in the oral argument held at Martin University on April 20th, as I noted at the time. Unfortunately, that oral argument was not recorded and so has been lost to history.

Posted by Marcia Oddi on Tuesday, May 01, 2012
Posted to Vacancy on Supreme Court 2012

Ind. courts - Floyd County Prosecutor Keith Henderson and possible serial murder case [Corrected]

Tara Schmelz of the New Albany News & Tribune reported last Friday that a third body had been found "in the backyard of a New Albany man recently charged in two murders." More:

William Clyde Gibson, 54, was charged in Floyd County on Tuesday with the week-old death of 75-year-old family friend Christine Whitis and the 2002 death of Karen Hodella, 45, of Jeffersonville.

Detectives began searching Gibson’s backyard around 2 p.m. Friday. Shortly before 10:30 p.m., Floyd County Prosecutor Keith Henderson confirmed officials had found human remains buried in the backyard of Gibson’s home on Woodbourne Drive near University Woods apartments.

Henderson said the remains appear to be that of “at least one individual” but wouldn’t speculate on the possibility of more victims. He said the remains appear to be weeks to months old — at the most.

When asked if Gibson could be a serial killer, Henderson said people need to be careful before using labels.

“The fact is it is a serious matter. We do have three individuals at this point,” Henderson said. Henderson said he could not speculate how the third victim died but hopes to release the victim’s identity Saturday.

Today Harold J. Adams of the Louisville Courier Journal has a nationally syndicated story headed "Floyd prosecutor: It's too soon to accuse New Albany man of being a serial killer." Some quotes:
The Floyd County (Ind.) prosecutor’s office is not ready to accuse William Clyde Gibson of being a serial killer — although the fact that he is already charged with two unrelated murders fits the definition, prosecutor Keith Henderson said.

Henderson also said he was not ready yet to charge Gibson in connection with a third body that was found Friday night buried in his backyard on Woodbourne Drive in New Albany. * * *

Henderson said he asked a Floyd County judge to seal the recording of last week’s hearing in which Gibson was charged with the two murders to protect the ongoing investigation.

The prosecutor was asked whether that meant investigators are looking into the possibility that Gibson may have killed more women. “To the extent that there is information that could lead to eventually other crimes being charged or ... other victims, it’s important that the integrity of the investigation ... stay intact,” he answered. * * *

On Thursday, Floyd Superior Court Judge Susan Orth immediately granted Henderson’s request to seal the recording of the probable-cause proceeding that led to the charges in Whitis’ and Hodella’s murders.

In the hearing — which took the place of a written affidavit that ordinarily accompanies criminal charges in Indiana — Henderson presented Orth with facts supporting the charges. The court audio recording of such a hearing is required to be available to the public just as if it were a paper affidavit.

Orth told a Courier-Journal reporter through a member of her staff last Wednesday, the day before the prosecutor’s request, that she would make the recording available Friday.

Instead, she ordered the next day that the recording be sealed for at least 30 days. “Afterwards the court shall re-examine the issue and determine the necessity of maintaining the confidentiality of said hearing,” Orth’s order says. [Emphasis added by ILB]

Floyd County Prosecutor Keith Henderson was the prosecutor in the first two David Camm trials.

[Corrected at 10:30 AM] From a reliable source: "Henderson was actually only the prosecutor in the second trial. Former Floyd County Prosecuting Attorney Stan Faith was the prosecutor in the first trial."

Posted by Marcia Oddi on Tuesday, May 01, 2012
Posted to Indiana Courts

Courts - Top female advocates before the SCOTUS

Daily Writ has a post with a table compiling:

... a list of the top 10 female advocates with the most appearances before the Supreme Court who are currently in practice.
The post notes that "Many of the advocates listed above argued the vast majority of their cases as members of the Office of the Solicitor General."

It would be interesting to see a similar table prepared for Indiana. Several women advocates in the Attorney General's office, including Cindy Ploughe, Ellen Meilaender and Monika Talbot, have been there for a number of years.

Posted by Marcia Oddi on Tuesday, May 01, 2012
Posted to Courts in general

Law - "Should Law Schools Teach Students Legal Research Process or Products?"

Interesting discussion at 3 Geeks and a Law Blog.

Posted by Marcia Oddi on Tuesday, May 01, 2012
Posted to General Law Related

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

Updating these ILB entries (here and here) from Friday, April 27th, the Indianapolis Star today has a brief story by William J. Booher, headed "Indianapolis attorney accused of defrauding clients of $2.5M."

Posted by Marcia Oddi on Tuesday, May 01, 2012
Posted to Indiana Courts