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Saturday, June 30, 2012

Ind. Courts - More on: Two justices and four appellate judges must stand for retention this year

As reported in this June 21st entry, of those who must stand for retention on this November's ballot if they wish to continue in office, only Justice Robert D. Rucker and Judge Paul D. Mathias had not yet filed. The filing deadline is July 15th.

Yesterday Judge Mathias filed with the Secretary of State.

Posted by Marcia Oddi on Saturday, June 30, 2012
Posted to Indiana Courts

Ind. Law - Mayor Ballard bans personal fireworks in Indianapolis

From Twitter: Mayor Greg Ballard ‏@MayorBallard

I just issued a local disaster emergency declaration for #Indy & Marion County & signed Executive Order banning personal fireworks displays.
In addition, Charles Wilson of the AP is the lead writer of this report (be sure to click p. 2) on fireworks bans nationwide.

More from Ballard:
To report the use of personal fireworks during the ban, please call (317) 327-3811. Please use 911 for emergencies.

Posted by Marcia Oddi on Saturday, June 30, 2012
Posted to Indiana Law

Ind. Decisions - Supreme Court vacates two transfers re child support

The first is Jonathon Douglas v. State of Indiana. The Order, filed June 29, 2012, states:

By order dated January 27, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, this Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Douglas v. State, 954 N.E.2d 1090 (Ind. Ct. App. 2011), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end. The Court DIRECTS the Clerk to certify this appeal as final.
ILB: Jonathon Douglas v. State of Indiana was a 10/12/11 COA opinion that concluded: "Finally, when all is said and done, it is the province of our supreme court to consider exceptions to its general, administrative rules governing child support. We therefore decline to create an exception to the rules set forth in Lambert and Clark and hold that the trial court erred when it concluded that incarceration for nonsupport of a dependent child cannot amount to a change in circumstances so substantial and continuing as to make the terms of an existing child support order unreasonable."

The second is Nunley v. Nunley. The Order, filed June 29, 2012, states:

By order dated January 27, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, this Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Nunley v. Nunley, 955 N.E.2d 824 (Ind. Ct. App. 2011), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end. The Court DIRECTS the Clerk to certify this appeal as final.
ILB: Julie Nunley, n/k/a Waldrath v. Jeremy A. Nunley was a 10/12/11 COA ruling following Douglas: "The State appeals from the trial court's order modifying the child support obligation of Jeremy A. Nunley and raises one issue, which we restate as whether the trial court abused its discretion in concluding that Nunley was entitled to a reduction of his child support obligation due to the decrease in his income resulting from his incarceration for Class D felony nonsupport of a dependent. For the reasons set forth in Douglas v. State, another case handed down today, we affirm."

Posted by Marcia Oddi on Saturday, June 30, 2012
Posted to Indiana Transfer Lists

Vacancy #2 on Supreme Court 2012 - General ILB disclosure

For the record here is a general disclosure for this 2nd 2012 Supreme Court selection process:

Prof. Schumm may have assisted one or more of the applicants in different aspects at assorted stages of the process. Ms. Oddi may have assisted one or more of the applicants in different aspects at assorted stages of the process.

(What does this mean? Neither of us support any specific candidates but do try to help and encourage applicants, particularly women. Both of us have volunteered to proof applications and to participate in mock interviews.)

Posted by Marcia Oddi on Saturday, June 30, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Law - Online Indiana Code now current

The General Assembly's online, unofficial version of the Indiana Code is now:

... current through the 2012 Regular Session of the Indiana General Assembly. This version of the Indiana Code contains all Indiana Code provisions in effect on July 1, 2012. Indiana Code provisions taking effect after July 1, 2012 are included for completeness with an appropriate effective date notation.

Posted by Marcia Oddi on Saturday, June 30, 2012
Posted to Indiana Law

Ind. Decisions - Supreme Court issues order re compliance with Criminal Rule 15.2

The Supreme Court yesterday posted an order, filed June 28th, re compliance with Criminal Rule 15.2, with respect to the completion of an electronic abstract of judgment:

Recognizing that practical difficulties have arisen making it challenging for courts to comply by July 1, 2012 with the electronic Abstract of Judgment requirement for those defendants with felony convictions that are not being committed to the Indiana Department of Correction, the Court by this order directs trial courts to make all best efforts to comply as soon as practicable for those defendants, but no later than December 31, 2012. This Order does not impact the statutory language requiring courts with felony commitments to the Indiana Department of Correction to complete the electronic Abstract of Judgment beginning July 1, 2012.

This Court wishes to express its appreciation to the trial courts that have complied by the original July 1, 2012 effective date.

Posted by Marcia Oddi on Saturday, June 30, 2012
Posted to Ind. Sup.Ct. Decisions

Vacancy #2 on Supreme Court 2012 - First press reports on the list of applicants

"Sixteen women among the 22 applicants to fill Indiana Supreme Court vancancy", a story from from Eric Bradner of the Evansville Courier & Press. Some quotes:

Only one of the applicants — Indiana Appeals Court Judge Elaine Brown, a Jasper, Ind. native — has immediately apparent Southwestern Indiana ties. * * *

In Daniels' last appointment, 25-year Chief Justice Randall Shepard, an Evansville native, had retired, and he was replaced by Mark Massa, a one-time Evansville Press reporter who had gone on to become a prosecutor and a Republican political appointee.

Shepard had praised Brown in 2008, when Daniels named her to the Indiana Court of Appeals.

"People there multiple times have said (by electing her) that 'When something terribly important of ours is at stake, the person we would most like to have decide it is Judge Brown,'" he said then.

"People all over Indiana ... will conclude, as the people in Dubois County have concluded, that their future and our state's future is in great hands."

She had also applied for the job in 2010, when Daniels ultimately chose Steven David to replace retiring Justice Ted Boehm.

The favorite for the job this time, though, could be another Indiana Court of Appeals judge — Cale Bradford, who was one of the three finalists the seven-member judicial nominating panel had selected for the spot that ultimately went to Massa.

"Lake judge seeks spot on state Supreme Court" is the headline to Dan Carden's story in the NWI Times:
INDIANAPOLIS | A Lake County Superior Court judge and at least one attorney with Northwest Indiana ties are among the 22 Hoosiers who have applied to serve on the Indiana Supreme Court.

Judge Elizabeth Tavitas is one of 16 women seeking to replace Justice Frank Sullivan Jr., who is leaving the court in August to teach law at Indiana University. Indiana's five-member Supreme Court is one of only three in the nation with no female justices.

Tavitas heads the domestic relations court in Gary which oversees various family law matters. She was appointed to the bench in 2006 by Gov. Mitch Daniels after working eight years as an assistant juvenile court judge.

In selecting Tavitas for the post Daniels said, "Her character and sense of higher purpose provide a judicial temperament that will only grow over time."

She previously served as a juvenile public defender and deputy prosecutor in Lake County and has worked in private practice with a focus on family and criminal law. She earned her bachelor's and law degrees at Notre Dame.

Making a second try for the high court is Solicitor General Thomas M. Fisher. The Jasper County native represents Indiana in arguments before the Supreme Court and previously applied to replace Justice Theodore Boehm in 2010. Justice Steven David was selected for that vacancy.

"Judge Gull seeks high court seat" reports Niki Kelly of the Fort Wayne Journal Gazette in this story:
INDIANAPOLIS – Twenty-two judges and attorneys submitted applications Friday hoping to fill the current Indiana Supreme Court vacancy, with only one candidate from northeast Indiana.

Women overwhelmed the pool 16-6. Nine of the contenders are judges. Nine previously sought the position on the state’s high court.

Allen Superior Court Judge Fran Gull applied again after she was not chosen in 2010.

“I’ve always wanted to be on the Indiana Supreme Court, and this is the best opportunity that will be available for quite sometime,” she said.

Gull noted the natural progression her legal career has taken – from deputy prosecutor to chief deputy to a judge first handling low-level felonies and then major cases.

“If I am not appointed, I am fortunate enough to have a job I love and that I think I’m pretty good at,” she said. * * *

Daniels received some pressure during his first two appointments to pick a woman because Indiana is one of only three states not to have a female jurist on the state Supreme Court.

When Boehm left, 19 women and 15 men applied. One finalist was a woman and Daniels chose a man. When Shepard left, eight men and seven women applied. One finalist was a woman and Daniels chose a man.

Both times, Daniels said he considers gender a tiebreaker to be used only if the final candidates are equal in accomplishments and qualifications.

Next Friday, the commission will release a list of candidates to be interviewed. Depending on the number of applicants, all or just some of the contenders will be interviewed July 17 and 18. The group will be trimmed for a second round of interviews in August before the final three are chosen.

Posted by Marcia Oddi on Saturday, June 30, 2012
Posted to Vacancy #2 on Supreme Court 2012

Friday, June 29, 2012

Vacancy #2 on Supreme Court 2012 - Preliminary analysis of the list

According to the press release:

The list of candidates who will be interviewed will be released on Friday, July 6th around 10 a.m. (Applications of candidates who will be interviewed are a matter of public record, see IC
33-27-3-2(d)(1).)

Information on where to view the applications will be released soon. Redacted applications of those candidates who will be interviewed will be placed online during the week of July 9th.

Public interviews of candidates will take place July 17th and 18 in the State House. After the interviews, the Commission will meet in executive session for deliberations. The Commission will consider applicants’ legal education, legal writings, reputation in the practice of law, physical condition, financial interests, activities in public service and any other pertinent information. [IC 33-27-3-2(a)]

The Commission will vote on and name the semi-finalists in public after the executive session concludes. A press release announcing the semi-finalists will be posted to courts.in.gov shortly after the public vote.

On August 8th and 9th the Commission will interview the semi-finalists. After executive deliberations the Commission will vote in public to send the three most qualified candidates to Governor Mitch Daniels. The Governor will select Indiana's 108th justice.

Here are some initial observations from Prof. Schumm:

Posted by Marcia Oddi on Friday, June 29, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - Here is the list of applicants

16 of the 22 are women!

Posted by Marcia Oddi on Friday, June 29, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - Here is the list of applicants

Here is the just-released list of applicants. Some preliminary analysis and links will follow shortly in another post.

Hon. Cale J. Bradford, Indiana Court of Appeals
Hon. Elaine B. Brown, Indiana Court of Appeals
Hon. Marla K. Clark, Johnson Circuit Court, Juvenile Division
Mr. Thomas M. Fisher, Indianapolis
Ms. Alicia A. Gooden, Indianapolis
Hon. Frances M. Gull, Allen Superior Court
Mr. Lyle R. Hardman, Granger
Ms. Carol Nemeth Joven, Indianapolis
Ms. Julia Church Kozicki, Noblesville
Ms. Abigail Lawless Kuzma, Indianapolis
Ms. Erin Reilly Lewis, Indianapolis
Ms. Andrielle M. Metzel, Indianapolis
Hon. Steven R. Nation, Hamilton Superior Court 1
Ms. Karen R. Orr, Monticello
Ms. Diane L. Parsons, Indianapolis
Ms. Brenda A. Roper, Indianapolis
Hon. Loretta H. Rush, Tippecanoe Superior Court 3
Mr. Geoffrey G. Slaughter, Indianapolis
Hon. Elizabeth F. Tavitas, Lake Superior Court
Hon. Marianne L. Vorhees, Delaware Circuit Court 1
Hon. Mary G. Willis, Henry Circuit Court 1
Mr. John P. Young, Indianapolis

Posted by Marcia Oddi on Friday, June 29, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - A second opinion today from Supreme Court

In Annette (Oliver) Hirsch v. Roger Lee Oliver, a 15-page, 3-2 opinion, Justice David writes:

In this case, after two hearings, the trial court issued a number of post-dissolution orders. Relevant to this appeal are the trial court’s specific findings related to the emancipation of a child and the requirement of a parent to contribute toward a child’s post-secondary educational expenses. On appeal, a trial court’s orders should be afforded the appropriate level of deference, as reflected in the applicable standard of review.

This opinion clarifies various aspects of the emancipation statute and also affirms the majority of the trial court’s rulings on emancipation and post-secondary educational expenses. * * *

I. Emancipation.

What constitutes emancipation is a question of law; whether emancipation has occurred is a question of fact. Dunson v. Dunson, 769 N.E.2d 1120, 1123 (Ind. 2002). A party seeking emancipation must establish it by competent evidence. Id. Indiana Code section 31-16-6-6 (Supp. 2010) deals with the termination of child support and emancipation. * * *

Subsection (a)(3) states that the duty to support an eighteen-year-old child terminates if the child has not met certain educational requirements and the child is supporting himself or herself through employment or is capable of doing so. Notably, subsection (a)(3) does not mention that emancipation occurs in conjunction with the termination of child support. On the other hand, if the eighteen-year-old child has met the stated educational requirements and is not capable of supporting himself or herself, then the duty to support the child continues, despite the child having reached the age of majority. In that circumstance, the eighteen-year-old child would not be considered fully emancipated: the dependent relationship between the parent and child continues because the child is still in need of support from the parents. * * *

[W]e find that the evidence does not support the trial court’s finding that Courtney had not been engaged in educational pursuits for four months prior to September 23, 2009, the date the trial court declared her emancipation. * * *

September 23, 2009, is the date Father filed the emancipation petition, and we note that “the assertion of emancipation will be effective as of the date of emancipation rather than as of the date of filing.” * * *

Accordingly, we remand to the trial court to determine the proper date of Courtney’s emancipation. Using that date, the trial court must then recalculate the amount of child support Father overpaid in accordance with the portions of the Court of Appeals opinion that we summarily affirm.

II. Post-secondary Educational Expenses

The issue of whether Father should be required to contribute toward Courtney’s post-secondary educational expenses is distinct from the issue of the date of Courtney’s emancipation. * * *

Conclusion

We affirm the trial court’s ruling that Father is not obligated to contribute to Courtney’s post-secondary educational expenses. We remand to the trial court to determine the correct date of Courtney’s emancipation.

Dickson, C.J., and Massa, J., concur.
Sullivan, J., dissents with a separate opinion in which Rucker, J., concurs.

Believing that the Court has impermissibly rewritten and incorrectly interpreted Indiana Code section 31-16-6-6, I respectfully dissent. * * *

Indiana Code section 31-16-6-6 sets forth three situations in which a child support obligation does not terminate at age 21. Subsection (a)(1) specifies that one of those situations is emancipation, and subsection (b) defines “emancipation.” Ind. Code § 31-16-6-6(a)(1), (b) (2008). If the Legislature intended the circumstances of subsection (a)(3) to constitute emanci-pation, it would have either included those circumstances within subsection (a)(1) or defined “emancipation” in subsection (b) to include them.

That having been said, I acknowledge that with the Legislature’s recent action reducing the age of emancipation from 21 to 19 effective July 1, 2012, see Pub. L. No. 111-2012, §§ 1-2, 2012 Ind. Acts 1590, 1590-91 (amending I.C. §§ 31-14-11-18 and 31-16-6-6), the consequences of the Court’s decision are likely to be insignificant.

Rucker, J., concurs.

Posted by Marcia Oddi on Friday, June 29, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today

In Medlock v. Trustees of Ind. Univ. (SD Ind., Pratt), a 4-page opinion, Circuit Judge Bauer writes:

This case stems from the search of a student’s dorm room at Indiana University in Bloomington, Indiana. The plaintiff-appellant, Zachary Medlock, sought a preliminary injunction in district court to prevent enforcement of his one-year suspension from the University. Specifically, he asserts that the search of his room by state school officials (and later the campus police) violated the Fourth Amendment, and he claims that the University’s suspension proceedings abridged his right to procedural due process under the Fourteenth Amendment. The district court disagreed and denied his request for a preliminary injunction. Medlock now appeals, and we dismiss the request for a preliminary injunction as moot. * * *

The only issue before us on this appeal is the denial of a preliminary injunction which sought to prevent the enforcement of an academic suspension. That suspension was to last for one academic year, and it went into effect on March 11, 2011. At oral argument in this matter on February 21, 2012, we confirmed that even were we to take immediate action to enjoin Medlock’s suspension, he would not have been able to re-enroll and begin classes midway through the spring 2012 semester. The term of the suspension has now expired. Thus, even if we were to decide that Medlock’s constitutional rights had been violated, a preliminary injunction would do him no good. There is simply nothing left to enjoin. And there are no other issues before us on this appeal—e.g., no request for damages or declaratory relief. Because we are unable to grant any effectual relief, the request for a preliminary injunction is dismissed as moot.

Posted by Marcia Oddi on Friday, June 29, 2012
Posted to Ind. (7th Cir.) Decisions

Courts - "I don't know why people are acting like they've never seen sequinned pants before."

The headline to the story in the New Zealand Herald is "Reporter ejected for 'disco pants' at trial." It begins:

A reporter was ordered out of the court's media bench after turning up to the Scott Guy trial wearing gold sparkly pants.

Laura McQuillan's attire caused an online storm within hours of the incident yesterday, with Twitter users debating whether the "disco pants" were appropriate for a murder trial.

A registrar at Wellington's High Court approached the 25-year-old, who works for NZ Newswire, at the media bench and asked her to leave the bench before the lunch break.

Miss McQuillan defended her choice of clothing on Twitter, saying: "I'm sitting under a table! No one even sees my legs!"

She added: "I don't know why people are acting like they've never seen sequinned pants before."

Thanks to the blog Above the Law, which has more on the story.

Posted by Marcia Oddi on Friday, June 29, 2012
Posted to Courts in general

Ind. Decisions - Supreme Court decides one today

In Walter Lyles v. State of Indiana, a 6-page, 4-1 opinion, Chief Justice Dickson writes:

The defendant, Walter Lyles, has appealed his conviction for misdemeanor Criminal Trespass, contending that there was insufficient evidence to support any inference that he lacked a contractual interest in the property upon which he is accused of trespassing. We hold that there was sufficient evidence to support his conviction.

The underlying facts of the case are not in dispute. On December 3, 2010, the defendant visited a bank branch located at 2600 West Michigan Street in Indianapolis, Indiana. The defendant, an account holder of the bank, was seeking to obtain a "print-out" of his account for free from one of the bank's tellers. Per its policy, the bank refused to give the defendant a free "print-out" and instead offered to give the defendant a "statement" for a $6 fee. A manager explained the bank's policy to the defendant, but the defendant persisted in his request and became "irate and disrespectful." The manager then asked the defendant to leave the bank and called the police when the defendant refused. The police officer who responded to the bank's call arrested the defendant after first asking the defendant to leave multiple times.

The State charged the defendant with Criminal Trespass as a class A misdemeanor under Indiana Code Section 35-43-2-2. The case was tried before a commissioner, who found the defendant guilty of misdemeanor Criminal Trespass. The defendant then initiated this appeal of his conviction, claiming insufficient evidence. The Court of Appeals reversed the trial court, vacating the conviction. Lyles v. State, 956 N.E.2d 180 (Ind. Ct. App. 2011). We granted transfer and now affirm the defendant's conviction for Criminal Trespass.

On appeal, the defendant's only contention is that there was insufficient evidence to convict him of Criminal Trespass as charged because he contends that there was no evidence from which the trier of fact could infer that he lacked a contractual interest in the real property of the bank. * * *

In proving the lack of a contractual interest, the State need not "disprove every conceivable contractual interest" that a defendant might have obtained in the real property at issue. * * *

At trial, there was evidence that the defendant was neither an owner nor an employee of the bank as well as evidence that the bank manager had authority to ask customers to leave the bank premises. This evidence, taken together, refuted each of the most reasonably apparent sources from which a person in the defendant's circumstances might have derived a contractual interest in the bank's real property: as an owner, as an employee, and as an account holder. Thus, we hold that there was sufficient evidence from which a reasonable jury could infer that the defendant did not have a contractual interest in the bank's real property.

Conclusion. We hold that there was sufficient evidence to support the defendant's conviction for Criminal Trespass and affirm the trial court.

Sullivan, David, and Massa, JJ., concur.

Rucker, J., dissenting with separate opinion. [which reads in part] I agree with the majority that “[t]he term ‘contractual interest in the property’ is not defined by the criminal trespass statute or elsewhere in the Indiana Code.” However, our Court of Appeals has declared that the term “‘contractual interest,’ as it is used in the criminal trespass statute, refers to the right to be present on another’s property, arising out of an agreement between at least two parties that creates an obligation to do or not to do a particular thing.” * * *

The evidence here is undisputed that on December 3, 2010, Lyles owned an account with CHASE bank with a positive balance. Based on existing precedent Lyles thus had a contractual interest in the CHASE premises. Further, contrary to the State’s initial position, there was no evidence that Lyles’ contractual interest had been terminated at the time of his arrest. As the Court of Appeals points out, “while there may have been sufficient evidence to support a conviction for disorderly conduct, the State did not file any such charge. The State has failed to prove an essential element of criminal trespass, namely that Lyles did not have a contractual interest in the property, and the evidence is insufficient to support Lyles’ conviction.” Lyles v. State, 956 N.E.2d 180, 182 (Ind. Ct. App. 2011). I agree and would therefore reverse the judgment of the trial court.

Posted by Marcia Oddi on Friday, June 29, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 12 NFP)

For publication opinions today (4):

In Doug Wynkoop v. The Town of Cedar Lake, Indiana, and the Town Council of the Town of Cedar Lake, Indiana, a 17-page opinion (including a 4-page concurring opinion), Judge Bailey writes:

Doug Wynkoop appeals the grant of summary judgment in favor of his former employer, the Town of Cedar Lake, Indiana, and the Town Council of the Town of Cedar Lake, Indiana. We affirm.

Wynkoop raises one issue, which we restate as whether he possessed a constitutionally protected property interest in his position with Cedar Lake so that he was entitled to due process before his employment was terminated. * * *

Here, the stated purposes of the Procedure Manual include “to provide a consistent, systematic, and organized approach to the establishment, implementation, and administration of the personnel policies” of Cedar Lake and “to assist and guide personnel in the day-to-day direction and performance of the general workforce.” By its terms, the Procedure Manual is not a contract of employment and does not assure employment for any specified duration. The document is replete with references to at-will employment; it contains a disclaimer and an acknowledgment that nothing in the Manual shall be construed as a guarantee of employment. It was to be interpreted exclusively by the Town Council.
Obviously, the intent of the Manual is to inform employees of practices and policies; it is not intended to create a property interest. Thus, even though the Manual was adopted by ordinance, it does not create enforceable rights against the Town.

Conclusion. Under Indiana law, Wynkoop did not possess a cognizable property right in his position; rather, he remained an employee-at-will. As such, he had no property interest entitled to procedural due process protection. The trial court properly entered summary judgment in favor of the Town. Affirmed.

MATHIAS, J., concurs.
ROBB, C.J., concurs in result with opinion:

I respectfully concur in result. Although I agree the trial court did not err in granting summary judgment in favor of the Town, I do so on a basis different from my colleagues.

The majority holds that Wynkoop was an at-will employee and he therefore had no property interest entitling him to due process protection under the terms of the Manual. As I noted in my concurring in result opinion in McCalment v. Eli Lilly & Co., 860 N.E.2d 884 (Ind. Ct. App. 2007), however, our supreme court has recognized exceptions to the employment-at-will doctrine, including promissory estoppel. Id. at 896 (citing Orr, 689 N.E.2d at 718). To successfully invoke the doctrine of promissory estoppel, an employee must assert and demonstrate that the employer made a promise; that the employee relied on that promise to his detriment; and that the promise otherwise fits within the Restatement test for promissory estoppel. * * *

Wynkoop, however, has not demonstrated detrimental reliance on the provisions of the Manual. When he was informed of the disciplinary action against him, he received a hearing as provided by the employee appeal section of the Manual. There is no evidence that he forewent any other available recourse. He was also informed that the recommended discipline was termination. The Manual does provide that disciplinary action could consist of immediate termination, and there is no evidence that in the course of the disciplinary action against Wynkoop he was promised and agreed to any lesser discipline. Thus, regardless of what, if any, rights Wynkoop may have had, he has not shown detrimental reliance on any statements in the Manual and I concur in the result reached by the majority that the trial court properly granted summary judgment in favor of the Town.

In City of Carmel v. Review Board of the Indiana Dept. of Workforce Development and Greg Park , a 16-page opinion, Judge Brown concludes:
Based upon the evidence and testimony before the ALJ and Board, we conclude that Employer showed that Park violated a reasonable and uniformly enforced rule related to a lawful order of a supervisor and other departmental rules and that therefore Employer demonstrated that Park was discharged for just cause. Accordingly, we reverse the decision of the Board that Park was discharged but not for just cause and remand for further proceedings consistent with this opinion.
In T.B. v. Indiana Dept. of Child Services, a 12-page opinion, Judge Najam writes:
T.B. (“Mother”) appeals the involuntary termination of her parental rights to her children and asks this court to adopt a policy that prohibits the involuntary termination of parental rights for all mentally retarded parents. We affirm the trial court’s judgment. * * *

Here, the trial court made numerous thoughtful findings regarding Mother’s ongoing inability and/or unwillingness to meet her parental responsibilities notwithstanding TCDCS’s provision of “exhaustive home based services” designed to “thoroughly address[]” Mother’s mental health and intellectual functioning throughout the entirety of the underlying CHINS and termination proceedings. Despite the wealth of services provided to Mother for more than one year, the trial court determined that, at the time of the termination hearing, Mother remained incapable of providing the children with a safe and stable home environment. * * *

Mother does not challenge the evidence supporting any of the trial court’s specific findings cited above. * * * Rather, Mother’s sole argument on appeal is that “mentally retarded parents should be immune from losing their parental rights.”

In making this argument, Mother compares involuntary termination proceedings to criminal proceedings. She then asks this court to “assum[e] arguendo” that the result of a termination proceeding is actually a “penalty” to the parent, rather than a decision made in the best interests of the child, and thereafter posits that such a penalty violates the prohibition against cruel and unusual punishment found in Article 1, Section 15 of the United States Constitution because the ultimate result is to make the child “legally dead” to the parent. Mother then states that such a result is not proportional to the nature of the offense when dealing with mentally disabled parents and asks this court to “examine the practice” of terminating the parental rights of a parent who is mentally retarded “and adopt a prohibition against such practice.”

It is not a proper function of this court to ignore the clear language of a statute and, in effect, rewrite the statute in order to render it consistent with a particular view of sound public policy. * * * Moreover, contrary to what Mother would have this court “assume arguendo,” the Indiana Supreme Court has made clear that the “purpose of terminating parental rights is not to punish parents, but to protect the children.” Our Supreme Court has further explained that “[a]lthough parental rights are of a constitutional dimension, the law allows for the termination of those rights when parents are unable or unwilling to meet their responsibilities as parents.” Egly, 592 N.E.2d at 1234. This includes situations not only where the child is in immediate danger of losing his life, “but also where the child’s emotional and physical development are threatened.” Id. In addition, it is well-settled that “mental retardation, standing alone, is not a proper ground for termination of parental rights.” Id. It therefore stands to reason that the converse should also be true. That is to say that mental retardation, standing alone, is not a proper ground for automatically prohibiting the termination of parental rights.

For all these reasons, we decline Mother’s invitation to depart from the clear and unambiguous language of Indiana’s termination statute in order to judicially legislate an exception whereby mentally handicapped parents are immune from involuntary termination proceedings. Moreover, because the trial court’s unchallenged findings clearly and convincingly support its ultimate decision to terminate Mother’s parental rights to N.B. and M.B., we find no error.

In Jeffrey A. Weisheit v. State of Indiana , an 11-page opinion, Judge Vaidik writes:
Jeffrey A. Weisheit was charged with the death penalty, two counts of murder, and one count of Class A felony arson for killing his girlfriend’s young children in an early morning house fire in Evansville, Indiana, in April 2010 and then fleeing the state. Weisheit requested to be released on bail, but the trial court denied his request. Weisheit now appeals that denial. Because Weisheit has failed to prove that the proof is not evident and the presumption of his guilt is not strong, we affirm the trial court’s denial of bail in this capital case.
NFP civil opinions today (4):

Jennifer A. Kreegar v. Fifth Third Mortgage Company (NFP)

Joseph A. Taylor v. Sgt. Rinehart (NFP)

Term. of Parent-Child Rel. of C.C., Minor Child; C.C., Mother v. Indiana Dept. of Child Services, and Lake County Court Appointed Special Advocate (NFP)

In Re: The Marriage of L.R. v. J.R. (NFP)

NFP criminal opinions today (8):

Jack Haut v. State of Indiana (NFP)

John Hollins v. State of Indiana (NFP)

Louis Board v. State of Indiana (NFP)

Michael W. Pine, Jr. v. State of Indiana (NFP)

Reuben Garcia v. State of Indiana (NFP)

Harold L. Tice, Jr. v. State of Indiana (NFP)

Kenneth Lainhart v. State of Indiana (NFP)

P.T. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 29, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Law School for Journalists set for Friday, July 20th

The third annual Law School for Journalists, co-sponsored by the Indiana Judges Association, Indiana Broadcasters Association and Indiana State Bar Association with support from the Judicial Conference Community Relations Committee, is set for Friday, July 20th.

The program is designed to provide journalists with tips on how to cover all aspects of the Indiana judicial system. New and experienced journalists and editors in television, print, radio and Internet are welcome to attend.

The Indiana Supreme Court and the Indiana University Robert H. McKinney School of Law partner to host the event.

The lunch hour will include an opportunity for discussions with judges and law school faculty.

Sign up here.

ILB: I have attended this event for the past two years and have learned a lot each year. In addition, I appreciate the opportunity to meet and mingle with journalists whose work I have admired from around the state.

Posted by Marcia Oddi on Friday, June 29, 2012
Posted to Indiana Courts

Ind. Gov't. - "Rockport coal-gasification plant receives final air permit"

Eric Bradner of the Evansville Courier & Press wrote this story published yesterday which gives an overview of the current status of the project and the many approvals necessary for the project to move forward. Some quotes:

INDIANAPOLIS — Plans for a $2.8 billion coal-to-gas plant in Rockport took another step forward as federal and state authorities gave their final thumbs-up to the air emissions permit its developers sought.

After a review by the U.S. Environmental Protection Agency, the Indiana Department of Environmental Management on Wednesday issued its finalized permit — one that includes updates to make sure the plant achieves its emissions targets.

It means developers are now closer to accomplishing two of the major conditions — environmental permits and a contract with Indiana to sell its synthetic natural gas — that they considered necessary to get a federal loan guarantee.

That would come from the U.S. Department of Energy, and would cover much of the cost of building the plant and an accompanying pipeline to carry sequestered carbon dioxide from Rockport to the Gulf of Mexico for use in oil production. * * *

The buyers will be Indiana's residential and commercial ratepayers, who will see Rockport's product — at an average price of $6.60 per million BTU — account for 17 percent of their bills over the next 30 years.

Those terms were negotiated by the Indiana Finance Authority, which agreed to buy and then resell the plant's product to give it the guaranteed buyer it would need to secure financing.

Another part of the business plan of New York-based Leucadia National Corp., which is backing Indiana Gasification, is the pipeline. * * *

The U.S. Department of Energy recently approved developers' request to amend the pipeline into its request for a loan guarantee, making it eligible to be included and also the subject of an environmental impact report that would be conducted on the full project.

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

Posted by Marcia Oddi on Friday, June 29, 2012
Posted to Indiana Government

Thursday, June 28, 2012

Courts - "Which States Will Refuse Medicaid Expansion?"

From Pro Publica, by Charles Ornstein.

Posted by Marcia Oddi on Thursday, June 28, 2012
Posted to Courts in general

Ind. Law - "Editorial: Playing with fire during a drought"

That is the heading to a strong editorial today in the Indianapolis Star. It concludes:

A 2006 law pushed by the fireworks industry allows residents to set off fireworks from June 29 to July 9 even in communities with open-burning bans. If local governments have the impertinence to say no to the sparklers and Roman candles, they could find themselves in court.

If the threat of wildfires remains anywhere near as great as it is now, they should take that chance.

While a spokesman for the Indiana Fireworks Dealers Association warns that the trade group might seek an injunction against such bans, officials who are contemplating them hope that emergency drought declarations will override the statute. State Fire Marshal Jim Greeson says nobody yet has challenged local bans in court.

Should local governments be placed in the absurd position of standing by while residents play with fire during a drought, the path of the next General Assembly is clear: Put this fundamental function of public safety back in the proper hands.

Rarely has a law rested on a weaker rationale. The lobby equates its product with other outdoor burning, such as backyard barbeques and cigarettes. As if uncontained cooking fires and carelessly tossed cigarette butts -- both generally illegal -- justify the random hurling of flaming novelties into the air and grass.

When the smoke clears, what we have is a conflict between commercial excess and common sense. One more reason to pray for rain. One more example of overreach by state government, which does a lot of noisy celebrating about home rule and a lot of selective hearing.

For background see this ILB entry from June 26th headed "Ind Law - "Fireworks: Local Ban Overrides State Law" or not?"

Posted by Marcia Oddi on Thursday, June 28, 2012
Posted to Indiana Law

Vacancy #2 on Supreme Court 2012 - List of applicants to be available by 5 pm tomorrow

From a helpful note just sent to the media by Kathryn Dolan, Indiana Supreme Court Public Information Officer:

A press release listing the names of those who have applied will be distributed sometime after 4:30 p.m. on Friday, June 29th. I do not have an exact time—but hope it will be before 5 p.m.
More from the note [ILB has added emphasis and link]:
The list of candidates who will be interviewed will be released on Friday, July 6th around 10 a.m. EST.

3. Applications of candidates who will be interviewed are a matter of public record. See IC 33-27-3-2(d)(1). As a courtesy, I am happy to make the applications and related materials available in the law library for a “public viewing session.” Let me know if this is of interest to you. (Last time I did this only about two people showed-up.)

4. Redacted applications of candidates who will be interviewed will be placed online during the week of July 9th. I’ll give you a more specific time ASAP.

ILB: Watch the ILB tomorrow evening, we will post the list as soon as available, perhaps with some additional information.

Re making the "applications and related materials available in the law library" -- this is very important to the ILB.

Although they have the right, most citizens from around the state do not have the time or ability to travel to Indianapolis to review these applications and especially the "related materials" - the writing samples, transcripts, letters of recommendation, etc. Thus the ILB and other members of the media who are following the Supreme Court nominating process serve an important role as intermediaries in the process.

It is hoped that a number of members of the media will have an opportunity to review the materials this time. But even if others' assignments don't permit it, the ILB plans to be there, and hopes that the "public viewing session" will extend for at least several hours, or all day as careful reviewing of even one application packet can consume much time, as can reviewing all applications for just a single item in order to prepare a comparison table. Learning ASAP exactly when the reviewing session will be set is also important so schedules may be cleared.

Posted by Marcia Oddi on Thursday, June 28, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - 7th Circuit decides one Indiana case today

In Robert Jones v. C&D Technologies (SD Ind., Lawrence), an 11-page opinion, Circuit Judge Kanne writes:

Robert Jones brought this action alleging that his employer, C&D Technologies, Inc., interfered with his right to take leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. The district court granted summary judgment for C&D Technologies, reasoning that Jones was not entitled to FMLA leave because he did not receive treatment during his absence. We affirm.

Posted by Marcia Oddi on Thursday, June 28, 2012
Posted to Ind. (7th Cir.) Decisions

Courts - "A weird victory for federalism"

From Randy Barnett, posted in Post-decision Health Care Symposium at SCOTUSblog.

Posted by Marcia Oddi on Thursday, June 28, 2012
Posted to

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Eldon E. Harmon v. State of Indiana , a 23-page opinion (including a 7-page concurring opinion), Judge Mathias writes:

Eldon E. Harmon (“Harmon”) was convicted in Elkhart Superior Court of Class A felony dealing in methamphetamine by manufacturing. Harmon appeals and raises two issues, one of which we find dispositive: whether the state presented sufficient evidence to establish that Harmon manufactured at least three grams of methamphetamine. We reverse and remand with instructions. * * *

[W]e conclude that the State’s string of inferences is simply too tenuous to satisfy its burden of proof beyond a reasonable doubt with respect to the weight element of the Class A felony charge.

Notwithstanding the State’s failure to present sufficient evidence to prove Class A felony dealing in methamphetamine, we note that the jury was also instructed on the lesser-included offense of Class B felony dealing in methamphetamine. * * * The only difference between the Class A and the Class B felony offenses is that in order to prove the Class A felony, the State must prove that the weight of the drugs was at least three grams. Accordingly, in finding Harmon guilty of the Class A felony, the jury necessarily concluded that Harmon committed the Class B felony. The evidence presented at trial was clearly sufficient to support a Class B felony conviction, and Harmon concedes as much on appeal. We therefore reverse Harmon’s conviction for Class A felony dealing in methamphetamine and remand to the trial court with instructions to enter a conviction for Class B felony dealing in methamphetamine and to resentence Harmon accordingly.

[Judge Vaidik's 6-page concurring opinion concludes]
Therefore, while I agree with the majority that there is insufficient evidence to establish that Harmon manufactured at least three grams of methamphetamine, I do not agree with the assumption that my colleagues make about the way in which the yield of methamphetamine can be measured. I would find that only the finished product, pure or adulterated, can be considered when determining the amount of the drug that is being manufactured or that a conversion ratio and an expert witness should be used when the manufacturing process is not complete and the yield is uncertain.

NFP civil opinions today (2):

In Constance L. Jones v. Jean L. Markey d/b/a Markey Bonding d/b/a Markey Bonds d/b/a A-AAA Bail Bonds, Inc. (NFP), a 6-page opinion with a pro se appellant, Judge Crone writes:

Constance L. Jones appeals the small claims judgment in favor of Jean L. Markey d/b/a Markey Bonding d/b/a Markey Bonds d/b/a A-AAA Bail Bonds, Inc. (hereinafter referred to as “Markey Bonding”). In 2004, Constance’s son was arrested and jailed on two sets of criminal charges. Constance paid Markey Bonding bail bond premiums to post bond for her son and to obtain his release from the Allen County Jail. Markey Bonding posted bond for those two sets of charges, and Constance’s son was released. However, immediately after he was released, he was arrested on different charges. In 2010, Constance filed a small claims action against Markey Bonding seeking a refund of the bond premiums she paid to Markey Bonding. The small claims court entered judgment in favor of Markey Bonding. Constance presents three issues for our review, which we consolidate and restate as one: whether the small claims court clearly erred when it entered judgment in favor of Markey Bonding. Finding no clear error, we affirm. * * *

Here, it is undisputed that Markey Bonding acted as a bail agent when it posted bond to obtain Donald’s release from confinement on the two sets of charges for which Constance paid the bond premiums. Donald was given his personal items and was escorted to the exit door of the Allen County Jail. He was allowed to leave, his freedom being no longer directly controlled and limited. Donald walked approximately fifty feet to a public sidewalk before he was arrested on different charges. The fact that Donald was quickly arrested on wholly separate charges is of no moment to Markey Bonding. Markey Bonding did exactly what it was paid to do: it posted bond and obtained Donald’s release on the two sets of charges for which Donald was incarcerated at that time. We agree with the small claims court that Constance failed to establish by a preponderance of the evidence that she is entitled a refund of the bond premiums. We cannot say that the evidence, along with all reasonable inferences, is without conflict and leads unerringly to a conclusion opposite that reached by the small claims court. Accordingly, we affirm.

Joseph A. Taylor v. Commissioner, Indiana Department of Correction, Indiana Parole Board, Keith Butts (NFP)

NFP criminal opinions today (4):

James Henry Tankard v. State of Indiana (NFP)

Anthony Hall v. State of Indiana (NFP)

Steven Kamp v. State of Indiana (NFP)

Timothy J. Canfield v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 28, 2012
Posted to Ind. App.Ct. Decisions

Courts - "Uncertain Future for ACA Medicaid Expansion?"

From Governing, by Dylan Scott.

Posted by Marcia Oddi on Thursday, June 28, 2012
Posted to Courts in general

Courts - "A reader’s guide to health care ruling"

From Lyle Denniston at SCOTUSblog.

Posted by Marcia Oddi on Thursday, June 28, 2012
Posted to Courts in general

Ind. Gov't. - AG Zoeller on healthcare ruling

The AG has issued a press release, but I am reluctant to provide a link as it has frozen my browser twice, requiring restarts.

Here is the headline and some quotes from the email version of the release:

AG: Legal challenge to individual mandate an important, worthwhile effort

Zoeller says Constitution’s checks and balances limits governmental powers; no additional state tax dollars spent for Indiana’s challenge to constitutionality of law

“Congress imposed an unprecedented mandate on individuals to buy a commercial health insurance product or face a penalty. Bringing a legal challenge was therefore the only appropriate way for the states to raise this constitutional question to the Supreme Court to decide with finality, and it was important and worthwhile for Indiana to join in this challenge,” Zoeller added.

The Indiana Attorney General’s Office spent no tax dollars on outside lawyers, paid no legal fees and spent nothing additional beyond the agency’s annual budget approved by the Legislature in advance, in order to participate in the legal challenge in the trial court, federal appeals court and Supreme Court levels. All of Indiana’s work was done in-house by staff attorneys in the Attorney General’s Office. The 55-page report and analysis on the health care legislation that Zoeller and Solicitor General Thomas M. Fisher drafted in early 2010 at the request of U.S. Senator Richard Lugar anticipated some of the legal issues raised in the lawsuit, and that report served as Indiana’s contribution to the multistate litigation.

Posted by Marcia Oddi on Thursday, June 28, 2012
Posted to Indiana Government

Courts - More on: At SCOTUSblog (and SCOTUS) this morning

Here are a few more interesting observations from SCOTUSblog (and perhaps others):

Amy Howe: Take a quick look at Footnote 11, which is on page 44 of the slip opinion: Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing that they may not lawfully do is buy health insurance and not pay the resulting tax.

Tom: I dissent from Lyle's view that the Commerce Clause ruling is a major blow to social welfare legislation. I think that piece of the decision will be read pretty narrowly.

Tom: Here is the money quote on the fifth vote to hold that the mandate is not justified under the Commerce Clause (recognizing that doesn't matter because there were five votes under the Tax Power): "The power to regulate commerce presupposes the existence of commercial activity to be regulated." That will not affect a lot of statutes going forward.

Amy Howe: From the beginning of the Chief's opinion: "We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation's elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions."

Posted by Marcia Oddi on Thursday, June 28, 2012
Posted to Courts in general

Courts - At SCOTUSblog (and SCOTUS) this morning

Stolen Valor Act (military awards) invalidated. Opinion.

From SCOTUSblog re ACA:

Amy Howe: The individual mandate survives as a tax.

ILB: Various news media are reporting this different ways! I trust SCOTUSblog.

Tom: So the mandate is constitutional. Chief Justice Roberts joins the left of the Court.

Amy Howe: The Medicaid provision is limited but not invalidated.

Tom: The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read.

Tom: Chief Justice Roberts' vote saved the ACA.

Amy Howe: The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

Amy Howe: The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate. [ILB: ?]

ILB: OK, now corrected - Tom: Apologies - you can't refuse to pay the tax; typo. The only effect of not complying with the mandate is that you pay the tax.

Lyle: The key comment on salvaging the Medicaid expansion is this (from Roberts): "Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding." (p. 55)

Amy Howe: The critical detail is that you cannot take away the existing Medicaid funds.

Amy Howe: The Court holds that the mandate violates the Commerce Clause, but that doesn't matter b/c there are five votes for the mandate to be constitutional under the taxing power. [ILB: Okay for ACA, but future implications re federalism?]

Lyle: In opening his statement in dissent, Kennedy says: "In our view, the entire Act before us is invalid in its entirety." [ILB: Wow! But he turned out not to be the swing vote this time, it was the CJ.]

Amy Howe: In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding.

ILB: Waiting for opinion, keep refreshing periodically.

Here is the opinion in the health care cases
.

Posted by Marcia Oddi on Thursday, June 28, 2012
Posted to Courts in general

Wednesday, June 27, 2012

Ind. Gov't. - How do other counties deal with this?

From the WITZ News report on the DuBois County Council Meeting:

June 26, 2012 - Monday afternoon, the Dubois County Council met and heard from Sheriff Donny Lampert on a request for a standard appropriation for medical expenses for inmates at the Security Center.

The $150,000 appropriation is a standard amount, but one inmate has racked up a bill of about $80,000 for medical treatment that could not be disclosed due to privacy laws. The inmate is doing better now, but the result is a high bill from an Evansville area hospital.

Lampert reports they are members of Advanced Corrections, a group that has as one of its benefits, a group medical plan which covers inmates. That plan brings the cost down to around $40,000.

Lampert reports that by law, the county MUST pay for any and all medical expenses for each inmate.

The County Council appropriates a total of $300,000 annually for medical expenses, according to Lampert. The council appropriated $150,000 for the remainder of 2012.

ILB: How much is the group medical plan,for starters? How are "medical expenses" defined?

Posted by Marcia Oddi on Wednesday, June 27, 2012
Posted to Indiana Government

Courts - Calculating Court Deadlines

New e-book. The author writes:

I thought if I can’t find the resources I need, I would try and make them myself. The result was my self-published Court Deadline Calculation guide “Calculating Court Deadlines: How to Apply the Rules for Computation of Time”. Included in this is an overview of how to apply the rules and then a comprehensive overview for each jurisdiction. I’m hopeful the end result will be a useful tool for those unfamiliar with the process entirely (the initial overview chapters should be an excellent introduction to calculating deadlines) and those very familiar with calculating deadlines (the comprehensive state-by-state overview allows quick access to the calculation rules).
More here.

ILB: It is $9.95 for the Kindle version, $9.99 for the iPad version. No word that I could find on how, and how often, it will be updated, as currency would appear to be an essential point if attorneys are to rely on it.

More: I've now downloading the sample pages and it is labeled "2012 edition.

Posted by Marcia Oddi on Wednesday, June 27, 2012
Posted to Courts in general

Ind. Gov't. - Star investigative reporter looks at the Indiana Economic Development Commission (IEDC)

The first story by Alex Campbell was Sunday, June 24th. The lengthy story was headed "State touted proposal to spend millions in tax dollars to lure business whose plan raises questions" and began:

MADISON, Ind. -- Build us a 40,000-square-foot manufacturing facility, throw in some needed equipment -- all for around $5 million -- and we'll create up to 200 new jobs.

That was the pitch by a California businesswoman and her renewable energy company, Global Energy Solutions, to officials at the Indiana Economic Development Corporation and ultimately the city of Madison.

The company was searching for a site in Indiana -- and the purpose of the IEDC, which reports to the Indiana Secretary of Commerce, is to lure jobs to Indiana and often provide incentives.

IEDC officials did just that. They approved $1.5 million in tax credit and training incentives. They also began pressuring the city of Madison to act on the proposal -- and quickly.

"Secretary of Commerce Dan Hasler asked me to send the following message," an IEDC official emailed city council president Laura Hodges. "If Madison is not going to take advantage of the job creation and investment opportunity being presented by Global Energy Solutions, (and that's OK) don't further frustrate the company with delays. We do not want to lose this project for Indiana."

But if IEDC officials were concerned Global Energy Solutions might move elsewhere, some in Madison had their own concerns.

And for good reason.

The story also recalled an earlier incident involving a California company, Litebox:
Boykin isn't the first California businessperson with financial baggage to come to Indiana with the promise of jobs, and with the IEDC's backing. Two weeks before the mayoral election in the fall, Bob Yanagihara stood next to Mayor Greg Ballard and Gov. Daniels at a press conference to pledge that his start-up company would employ 1,100 Hoosiers. The Star found that Yanagihara had hundreds of thousands of dollars in unpaid tax liens, and several angry creditors back in California.
The long story links to maps and documents, including a business plan ("The Star also determined that other parts of Boykin's plan are identical to a sample business plan posted on the website bplans.com. The sample plan was for company that makes auto tools.")

Today's Star has an editorial headed "Litebox, Global Energy Solutions deals were too good to be true."

In today's "Star Watch" blog, reporter Campbell takes a long look at "The IEDC's Vetting Standards."

Also today, Campbell points to this story by Rosland Gammon at Reynolds Business Journalism, headed "Reporters may need a back door for info on economic development deals." Some quotes:

I didn’t realize many state economic development agencies were exempt from state open records laws until I talked with Alex Campbell of the Indianapolis Star.

He got a quick “no” when he sought information about a state deal to lure Global Energy Solutions, a company that the paper found presented red flags. Working on the story, "State touted proposal to spend millions in tax dollars to lure business whose plan raises questions," Alex found experts who raised questions about the [Indiana Economic Development Corporation's] “due diligence on a project that would have cost local and regional taxpayers several million dollars.” * * *

Alex couldn’t get the company’s business plan from the state, but Madison officials provided it.

“The fact that there were enough people angry in Madison was really helpful,” he says. “There was upfront taxpayer money at stake.”

From there, Alex used Nexis to delve into the entrepreneur’s past and found a recent lawsuit. His search of the California Secretary of State database showed one of her businesses lost its license for failure to pay taxes.

ILB: Looking back through the ILB archive,, this certainly isn't the first time public access concerns have been raised re the IEDC and local entities. They were raised during the bill's passage through the General Assembly in 2005, to no avail. And they were raised again shortly thereafter. Here are some posts:

Posted by Marcia Oddi on Wednesday, June 27, 2012
Posted to Indiana Government

Courts - "Wisconsin S Ct. sides with newspaper in dispute with Milwaukee Police Department"

Thanks to Gitte Laasby, formerly of the Gary Post Tribune, who tweeted today about this long story by John Diedrich of the Milwaukee Journal Sentinel. It begins:

The Wisconsin Supreme Court ruled Wednesday against the city of Milwaukee and for the Journal Sentinel in a dispute over whether a government body can charge for its employees to delete information deemed confidential from public records.

In a unanimous decision, the high court reversed a Milwaukee County judge's ruling.

The Journal Sentinel sued the city in September 2010, contending that the Milwaukee Police Department's decision to limit staff time to address requests for incident reports was arbitrary and that the fee it proposed to charge for blacking out certain names and information was excessive. The Journal Sentinel argued that such fees would effectively close the records to the public.

Milwaukee County Circuit Judge Thomas Cooper sided with the city. The newspaper appealed the case to the high court. The Wisconsin Supreme Court heard oral arguments in April and issued its opinion Wednesday.

Chief Justice Shirley Abrahamson wrote, "… we conclude that the city may not charge the newspaper for the costs, including staff time, of redacting information. Such costs do not fit within the fees set forth in ( state law). Accordingly, we reverse the order of the circuit court and remand the cause to the circuit court for judgment to be entered in favor of the newspaper."

Here is the 38-page opinion in Milwaukee Journal Sentinel v. City of Milwaukee.

Posted by Marcia Oddi on Wednesday, June 27, 2012
Posted to Courts in general

Ind. Law - Public intoxication in the news

"Public intoxication law set to be eased starting July 1" is the headline to Maureen Hayden's June 24th story in the New Albany News & Tribune. It begins:

INDIANAPOLIS — You can be drunk in public but not guilty of public intoxication under a new state law that goes into effect July 1.

Earlier this year, the Indiana General Assembly passed legislation that raises the bar for what police and prosecutors need to charge someone with the misdemeanor crime of public intoxication.

Under the old law, it was a crime to be in a public place, in a state of intoxication caused by the use of alcohol or drugs.

The new law requires an extra element: a person has to be disruptive or dangerous, as well as intoxicated, before he or she can be arrested and charged with public intoxication.

But it might not be a good idea to go on a public bender. The new law still gives police discretion to make an arrest of an intoxicated person, though it may take much more effort for them to make their case.

“It’s going to make a police officer’s job harder to do,” said David Powell, executive director of the Indiana Prosecuting Attorneys Council. “Police officers are going to have document very well the behavior of the intoxicated person.”

Here’s why: Under the new law, a person who is intoxicated in public must also be doing one of these four things: endangering their own life; endangering someone’s else life; breaching the peace or be in “imminent danger” of breaching the peace; or harassing, annoying or alarming another person.

Some of those elements of the crime are in the eye of the beholder, Powell said. “If you’re drunk and throwing up in front of a woman and her two children, is that annoying, harassing or alarming? I think that mother would say so, but somebody else might argue otherwise. It’s going to be up the courts to provide us some guidance.”

It was a court decision that prompted the new law. Backers of the bill didn’t like a 2011 decision by the Indiana Supreme Court that upheld the public intoxication conviction of a woman who was arrested for being drunk while she was a passenger in her own car.

From a story yesterday by Caitlin Huston in the Logansport Pharos Tribune:
LOGANSPORT — Two drivers pulled over in separate incidents on the same night in May face public intoxication charges rather than drunken driving charges, purportedly because of language issues.

Miguel Bartolome-Tomas, 24, Logansport, and Omar Olivares, 29, Logansport, were pulled over while driving on May 6 and tested above the legal limit on a portable breathalyzer at the scene. But both were arrested on charges of public intoxication and did not go through subsequent breath tests.

In their narratives, the officers note that Bartolome-Tomas and Olivares said they spoke “very little English” and thus the officers were unable to administer sobriety tests due to language barriers.

Cass County prosecutors say portable breath tests are not admissible in court because they’re not scientifically reliable. To be charged with operating while intoxicated, the suspect must test greater than .08 percent on the certified chemical breath test at the sheriff’s office, which is accompanied by a checklist the officer must administer to the suspect.

“It was determined that there was no law enforcement or jail staff on duty to provide translation for standardized field sobriety,” the reports state. * * *

Logansport Police Chief Mike Clark said it was up to the individual officer to determine whether a translator was needed. Police officers can call the police department’s on-call translator at any time, Clark said.

“If it’s needed, absolutely they can,” Clark said.

Clark also said there are no officers currently on staff who speak Spanish.

Posted by Marcia Oddi on Wednesday, June 27, 2012
Posted to Indiana Law

Ind. Decisions - 7th Circuit decides one Indiana case today

In A.B. v. Housing Auth. of South Bend (ND Ind., Simon), a 4-page opinion, Judge Bauer writes:

The singular question before this Court concerns A.B.’s appeal of the July 8, 2011 district court order denying A.B.’s motion for a preliminary injunction to prevent the Housing Authority from pursuing the eviction in the Indiana state court. But due to its current procedural posture, we will not review the district court’s ruling on the merits. Since the Indiana state court has already entered a June 24, 2011 final order evicting A.B., this Court lacks jurisdiction for review; there no longer remains a live controversy. Thus, we cannot grant the relief that A.B. seeks and the appeal is dismissed for mootness.

Posted by Marcia Oddi on Wednesday, June 27, 2012
Posted to Ind. (7th Cir.) Decisions

Courts - Judge Posner addresses Justice Scalia's dissent in Arizona v. US

This must-read article by 7th Circuit Judge Richard A. Posner is one of several takes on the immigration opinion published over the past few days in Slate. A sample:

[Justice Scalia]is very concerned with the fact that the Obama administration recently announced a program suspending deportation efforts directed at more than1 million illegal immigrants under the age of 30. He quotes President Obama as having said that the program was "the right thing to do." Justice Scalia says that it "boggles the mind" to think that Arizona could be contradicting federal law by enforcing applications of federal immigration law "that the President declines to enforce." He says that the federal government "does not want to enforce the immigration laws as written, and leaves the States' borders unprotected against immigrants whom those laws would exclude." The federal government is "refus[ing] to enforce the Nation's immigration laws."

These are fighting words. The nation is in the midst of a hard-fought presidential election campaign; the outcome is in doubt. Illegal immigration is a campaign issue. It wouldn't surprise me if Justice Scalia's opinion were quoted in campaign ads. The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case. It seems rather a belated development to figure in an opinion in the case.

Posted by Marcia Oddi on Wednesday, June 27, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 0 NFP)

For publication opinions today (3):

In Gunther Kranz and Carol Kranz v. Meyers Subdivision Property Owners Association, Inc., Christopher Bartoszek, and Indiana Dept. of Natural Resources, a 25-page opinion, Judge Crone writes:

Gunther and Carol Kranz own property on Bass Lake that is subject to an easement by other landowners in the Meyers Subdivision (“the Subdivision”). In prior, separate proceedings, the Natural Resources Commission (“the NRC”) determined that the easement holders had the right to place a pier at the end of the easement, but they would have to apply for a permit for a group pier (“the Group Pier”) from the Department of Natural Resources (“the DNR”). The DNR initially denied the permit because it believed that the Group Pier's proximity to neighboring piers created a safety hazard. The easement holders requested a hearing before an administrative law judge (“the ALJ”), who determined that the easement holders should be allowed to have a group pier and that the Kranzes should move their pier to accommodate the Group Pier. The Kranzes appealed to the NRC, which adopted the ALJ's decision.

The Kranzes then sought judicial review in the Starke Circuit Court. The Kranzes advanced four reasons for reversing the NRC's decision: (1) that the NRC lacked jurisdiction to determine property rights; (2) that the decision was arbitrary and capricious because the NRC did not follow its own rule; (3) that the decision was not supported by substantial evidence; and (4) that the decision effected an unconstitutional taking. The trial court affirmed, and the Kranzes appealed to this court. We conclude that the NRC has jurisdiction to render a decision concerning property rights to the extent necessary to implement the permit process. We also conclude that the NRC properly interpreted and applied its own rule. Further, the evidence favorable to the decision is that the safety concerns were alleviated by moving the neighboring piers away from the Group Pier. Finally, we conclude that there was not an unconstitutional taking of the Kranzes' property. Because Bass Lake is a public freshwater lake, the only effect of the NRC's decision on the Kranzes' property rights was to relocate their pier, and there was no indication that the pier was any less usable in the location chosen by the NRC. The decision does not deprive the Kranzes' property of all or substantially all of its economic or productive use and therefore is not an unconstitutional taking. Therefore, we affirm.

In Fili Moala v. State of Indiana, an 11-page opinion, Chief Judge Robb writes:
Following a bench trial, Fili Moala was found guilty as charged of operating a vehicle with an alcohol concentration between .08 and .15, a Class C misdemeanor, and public intoxication, a Class B misdemeanor. He was also found guilty of operating a vehicle while intoxicated as a Class C misdemeanor rather than the Class A misdemeanor charged by the State. All charges stemmed from a single incident of Moala operating his vehicle on a public road. The trial court merged the two operating convictions, entered a judgment of conviction on operating while intoxicated as a Class C misdemeanor, and sentenced him to sixty days. The trial court also entered a judgment of conviction on the public intoxication conviction and sentenced him to 180 days, with the sentences to be concurrent.

Moala appeals, raising one issue for our review: whether the trial court violated double jeopardy in entering convictions for both operating a vehicle while intoxicated and public intoxication when the same evidentiary facts establish both offenses. Moala requests that the Class C misdemeanor operating a vehicle while intoxicated conviction be vacated. The State concedes that the two convictions violate double jeopardy; however, the State requests that the public intoxication conviction be vacated. Concluding the appropriate remedy for the double jeopardy violation is to vacate the operating while intoxicated conviction, we reverse and remand.

In Cory Heinzman v. State of Indiana, a 28-page opinion, Judge Mathias concludes:
The trial court did not err in denying Heinzman’s motion for discharge because Heinzman waived his right to a speedy trial under Criminal Rule 4(C) by failing to object when the trial court set a trail date outside the one-year time limit. And because Heinzman himself was responsible for some delay in the trial, did not timely assert his right to a speedy trial, and has failed to demonstrate resulting prejudice, we cannot say that the delay in his trial violated his constitutional right to a speedy trial.

With regard to the admission of evidence, the trial court did not abuse its discretion in admitting evidence that the report of Heinzman’s abuse had been “substantiated,” inasmuch as this testimony did not run afoul of Evidence Rule 704(b). 28 Similarly, the letter written by the victim was admissible under an exception to the hearsay rule and was cumulative of the victim’s testimony.

Heinzman’s convictions on three counts of Class C felony child molesting do not constitute double jeopardy because there was evidence establishing that Heinzman molested the victim on at least four occasions. Thus, there was no reasonable possibility that the jury relied on the same evidentiary facts to convict Heinzman on all three counts.

Lastly, the trial court did not abuse its discretion in sentencing Heinzman to an aggregate term of twenty-four years. This sentence is not inappropriate given the nature of the offense and the character of the offender.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Wednesday, June 27, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "States are moving to set up health insurance exchanges" What about Indiana?

On May 10th the ILB posted this entry, which pointed to Executive Order 11-01, directing the Family and Social Services Administration to work with other state agencies to conditionally establish and operate a health insurance exchange.

Today, however, Tom LoBianco of the AP reports "State health exchange waits for court ruling." From the long story:

INDIANAPOLIS – Indiana has spent the past year and a half planning for its own health insurance exchange in case the U.S. Supreme Court upholds President Obama’s health care law, but the state still could end up being forced into the federal exchange.

Gov. Mitch Daniels ordered state agencies to investigate the cost and feasibility of an online health insurance marketplace in January 2011. Although Indiana appears to be ahead of some states that say they want to create their own exchanges, it’s still possible Indiana may not be ready in time.

“We’ve completed cost estimates, legal analysis, surveys and other requirements,” Daniels spokeswoman Jane Jankowski said Tuesday. However, she added, “No decision about establishing a state exchange has been made.”

Indiana hasn’t enacted a law creating its own exchange and Daniels told the agencies to keep their work in the planning stages.

The court, expected to rule Thursday, could uphold it or overturn all or part of it. Insurance exchanges, a key part of the law, would allow residents to comparison shop online for insurance starting in 2014. States can run their own exchange, form a state-federal partnership to create one, or have the federal government step in and take over.

Daniels gave himself broad power to create an exchange, via an executive order he wrote in 2011 and enabling legislation approved by lawmakers. However, that power could be muted because Daniels is term limited from seeking re-election in November. * * *

Daniels has pursued a dual path since the health care law was passed, consisting of blasting the law publicly while preparing for it in the case the justices do uphold the law, said David Roos, executive director of Covering Kids and Families of Indiana.

Posted by Marcia Oddi on Wednesday, June 27, 2012
Posted to Indiana Government

Environment - "Save the Dunes wants IDEM to toughen NIPSCO's Bailly Station discharge permit"

That is the headline to a long story in yesterday's Chesterton Tribune, reported by Luke Nevers. It begins:

Save the Dunes is asking the Indiana Department of Environmental Management (IDEM) to toughen the conditions of NIPSCO’s National Pollution Discharge Elimination System (NPDES) permit for its Bailly Generating Station, whose outfall effluent crosses several hundred feet of beach at Indiana Dunes National Lakeshore.

In comments submitted to IDEM on June 11, Save the Dunes made note in particular of several issues:

  • The Bailly Generating Station’s outfall across a beach to which the public has access and where folks “participate in full-body contact and recreation with the effluent stream” is “of serious public health concern.” Save the Dunes believes that “the public is put at risk by this effluent stream from the release of toxic substances and high-water temperatures which could occur due to equipment malfunction or routine operations.”

  • The beach in question is also “known to provide a habitat for the Piping Plover”—an endangered bird “under the U.S. Endangered Species Act”—during migration. “It is expected that the beach could one day provide habitat for breeding populations of the bird but further restoration is needed.”

  • Save the Dunes expresses as well its fear that the draft NPDES permit submitted by NIPSCO “will not adequately address possible PCB and mercury contamination from the facility.”
Save the Dunes is thus asking IDEM to make the NPDES permit more stringent in a number of ways. First, the permit should formally establish a deadline for implementation of a NIPSCO plan—involving a system of sheet pile banks and bank fencing—to contain the outfall across the National Lakeshore beach. “NIPSCO specifically should be responsible that the route of the effluent does not cross (the National Lakeshore’s) beach and that adequate signage and/or physical barriers protect the public from direct contact with the undiluted effluent.”

Posted by Marcia Oddi on Wednesday, June 27, 2012
Posted to Environment

Ind. Gov't. - Still more on "Public Universities See Familiar Fight at Virginia"

Updating this ILB entry from yesterday, see this story today in the NY Times, headed "University of Virginia Reinstates Ousted President."

Posted by Marcia Oddi on Wednesday, June 27, 2012
Posted to Indiana Government

Ind. Gov't. - Still more on: AG's Public Access Seminar series explains open records, meetings

In this ILB entry from June 20th, I reported on the session I had attended in Indianapolis the previous meeting. Attorney General Zoeller did not attend that session, a representative of his office did. However, according to this story in today's South Bend Tribune, reported by Margaret Fosmoe, the AG did attend the session last evening in South Bend. From the story:

Indiana Attorney General Gregory Zoeller also attended the session.

Zoeller told the audience he wanted to apologize to the South Bend Tribune for an "unfortunate error" in the Indiana Court of Appeals that resulted in a case of prior restraint.

The appeals court in March granted a request preventing The Tribune from publishing records the newspaper obtained from the Indiana Department of Child Services related to the death of Tramelle Sturgis, 10, of South Bend.

The case came after a local judge had ordered the release to the newspaper of phone records from DCS's child abuse hot line. DCS went to the appeals court in an effort to prevent the newspaper from publishing the contents of the audio tapes.

Zoeller intervened, and the appeals court dismissed the effort to bar the records' release. The attorney general said at the time that DCS's effort to prevent publication was inconsistent with the First Amendment.

"I want to go on the record: On my watch, it will not happen again," Zoeller told the audience Tuesday.

The audio recordings contained calls made in 2011 by an anonymous individual to a DCS hot line describing horrific abuse and torture of children at the Sturgis home. The caller urged child protective workers to intervene immediately to rescue the children.

For background see this ILB entry from March 10, 2012, and this ILB entry from March 12th.

Posted by Marcia Oddi on Wednesday, June 27, 2012
Posted to Indiana Government

Ind. Courts - "Indiana Supreme Court pioneered same path as Title IX"

This letter from Indiana Justice Frank Sullivan, Jr. appeared in the June 26th Indianapolis Star. A quote:

In 1972, the same year that Title IX became law, the Indiana Supreme Court declared that both the U.S. and Indiana Constitutions required public high schools to provide equal sports opportunities for girls and boys.

The case started when Johnell Haas, who had made South Bend Riley High School’s golf team, was barred from competition by an IHSAA rule prohibiting male and female students enrolled in member schools from competing on the same team or against each other.

The ISHAA justified its rule on grounds that males possess a higher degree of athletic ability than females. But Haas’s lawyer, noted South Bend attorney Tom Singer, pointed out that neither Riley High School nor the great majority of high schools in the state maintained interscholastic athletic programs for female students. By denying female students the opportunity to participate on varsity athletic teams in interscholastic competition, Singer argued, the IHSAA’s rule had the effect of preventing girls from participating in interscholastic athletics altogether, thereby violating their federal and state constitutional rights to equal protection and equal privileges and immunities.

Indiana Supreme Court Justices Donald Hunter, Dixon Prentice and Roger DeBruler agreed. In Haas v. South Bend Community School Corp., the court held that unless girls’ sports programs comparable to boys’ existed in non-contact sports, girls had a constitutional right to participate with boys.

Faced with Title IX and the Haas decision, Indiana high schools quickly began offering sports programs for girls as well as boys.

As we have cheered on athletes from Indiana like Katie and Elizabeth Moreau – and Amy Yoder Begley, Lauren Cheney, Skylar Diggins, Katie Douglas, Lori Lindsey, Maicel Malone, Ruth Riley, Ashley Spencer, Stephanie White, and so many more – we have been able to do so thanks to the work 40 years ago of Birch Bayh and his colleagues in Congress, of Johnell Haas and Tom Singer, and of the Indiana Supreme Court.

ILB: Here is the Nov. 27, 1972 Indiana Supreme Court opinion in Haas v. South Bend Community School Corp.

Posted by Marcia Oddi on Wednesday, June 27, 2012
Posted to Indiana Courts

Tuesday, June 26, 2012

Ind. Decisions - Still more on "LaPorte prosecutor under investigation"

In an order filed June 20th, but posted today, In re Szilagyi, the 5-0 Court sets out the stipulated facts:

As part of Respondent's 2009 divorce decree, his wife's last name was restored to her name prior to the marriage and Respondent was awarded the marital home. Later that year, Respondent pursued refinancing of the home, which required his former wife to execute a quitclaim deed of her interest to him. Respondent's secretary prepared the deed using the former wife's restored name rather than her married name as reflected on the title. The secretary sent the quitclaim deed to the former wife, who signed it with her restored name and returned it without being notarized.

Respondent did not review the quitclaim deed until the day of the closing. When he discovered the problems, he asked his secretary to prepare a new deed. He then signed his former wife's married name on the deed, signed his secretary's name as notary, and used his secretary's notary stamp on the deed, all without the knowledge of consent of either his former wife or his secretary. As a result, the secretary became the subject of an investigation by the Indiana Secretary of State into the authenticity of the notarization.

The violation and discipline:
Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
8.4(d): Engaging in conduct prejudicial to the administration of justice.

Discipline: The parties propose the appropriate discipline is a sixty-day suspension with automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of sixty days, beginning August 1, 2012.

For background, see this June 9th ILB entry.

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to Ind. Sup.Ct. Decisions

Courts - "Bryan Stevenson, the man behind the juvenile justice cases decided by the Supreme Court"

Eva Rodriguez of the Washington Post has the long story. It begins:

Bryan A. Stevenson — Harvard law and government grad, MacArthur “genius” and native son of a segregated Delmarva — has not let the murder of a family member at the hands of teenagers keep him from his life’s work: representing juvenile offenders whose violent acts have landed them behind bars, often for life. In the mid-1980s, Stevenson established the Equal Justice Institute in Montgomery, Ala., and from that perch the 52-year-old has shepherded landmark cases that have transformed how the country’s criminal justice system deals with violent youths. On Monday, a divided Supreme Court handed Stevenson his latest victory: By a 5 to 4 margin, the justices declared unconstitutional any mandatory penalty that essentially dooms a juvenile offender to a life sentence. Stevenson’s clients in the two cases decided by the court were each 14 years old when they were involved in crimes that resulted in homicides. Stevenson spoke with the Style section about the cases, his roots and the passion that fuels his career.
Thanks to NYU Law for the link.

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to Courts in general

Ind. Decisions - Supreme Court issues one today

In Michael Sharp v. State of Indiana, a 6-page, 5-0 opinion, Chief Justice Dickson writes:

The defendant Michael E. Sharp has appealed his convictions and sentences for two counts of Child Molesting. The Court of Appeals rejected his several appellate claims and af-firmed the trial court. Sharp v. State, 951 N.E.2d 282 (Ind. Ct. App. 2011). Seeking transfer, the defendant asserts a single claim: that the Court of Appeals should have considered his credit restricted felon status when evaluating his request for appellate sentence review under Indiana Appellate Rule 7. As to this issue, we reject the rationale applied by the Court of Appeals but reach the same outcome regarding the appropriateness of the defendant's sentence. With respect to the defendant's other appellate issues, we summarily affirm the Court of Appeals. Ind. App. R. 58(A)(2). * * *

The Court of Appeals rejected all of his claims and, in its appellate sentence review, held "we will not take into account a person's credit restricted felon status when reviewing a sentence under Appellate Rule 7(B)" because "credit time is set by the legislature and is not a discretionary tool used by the trial court judge." Sharp, 951 N.E.2d at 290. We granted transfer and now hold that credit time status may be considered by an appellate court exercising its review and revise authority. * * *

We hold that appellate sentence review may take into consideration the potential consequences of an offenders' status as a credit restricted felon, but we otherwise summarily affirm the decision of the Court of Appeals regarding double jeopardy and the trial court's consideration of aggravating and mitigating circumstances. We decline to find the defendant's sentence to be in-appropriate, and we affirm the judgment of the trial court.

Notably, again today the Supreme Court cites, here at p. 6, to the archived video of the oral argument (but uses a different format for the citation):
In this appeal, the defendant contends that his unfavorable credit time status should be considered as part of the aggregate penal consequences subject to appellate review and revision under Appellate Rule 7. The State responds that a defendant's credit time status should not be considered for purposes of Appellate Rule 7 review because credit time status is a "correctional tool" offered as a carrot to encourage a defendant to conduct himself or herself appropriately while incarcerated. Oral Arg. at 00:24:30, 00:30:10, available at https://mycourts.in.gov/ arguments/default.aspx?view=detail&id=1287.
See June 22nd ILB entry headed "So how important are oral arguments? Supreme Court cites video of oral argument." The format used in the June 22nd opinion was: "Oral Arg. Video Tr. at 26:02-26:40."

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on "Public Universities See Familiar Fight at Virginia"

Updating this ILB entry from earlier today:

Thanks to a tweet from Eric Weddle, here is The Chronicle of Higher Education just posted story by Sara Hebel, Jack Stripling, and Robin Wilson headed "U. of Virginia Board Votes to Reinstate Sullivan." And Jon Murray links to the Washington Post live blog, just concluded a few minutes ago, covering the reinstatement. Notice the links on Post page to earlier stories of interest such as "Question in U-Va. tumult: What should premier public universities be?."

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to General Law Related

Ind. Gov't. - New Citizens Water still estimating water bills!

This is kind of a personal gripe, but I think many others share it. Citizens Gas took over Indianapolis Water and one good thing we all expected was the end of "Estimated Bills." (One excuse for these estimated bills in the past has been it was just too hard for the meter reader to make his/her way through the snow.)

Indianapolis has been having a drought this summer and I have been watering the garden more than usual. The drought started just about the end of my last billing period, May 16. So I've been awaiting the new bill (June 20) to see how much I've been billed for this period so that I can determine whether I need to adjust the usage.

The bill came today. It is an estimated bill!!! Does anyone have an answer? All my bill says is "A pamphlet is available upon request."

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to Indiana Government

Ind Law - "Fireworks: Local Ban Overrides State Law" or not?

Stacey Page Online ("Kosciusko County's only digital daily newspaper") had the story yesterday, reporting:

Violate Kosciusko County’s burn ban and you could face jail time and fines.

Despite recent arguments from members of the public that Indiana Code bans local government from regulating usage of personal fireworks, Kosciusko County Emergency Management Director Ed Rock says that simply is not true.

“Our burn ban is actually a disaster declaration which means all other rules and laws basically go out the window,” explains Rock.

Under Indiana Code Title 10 (specifically see IC 10-14-3-29), local government can issue bans of personal fireworks in the event of an emergency. A drought, according to state law, is among the disasters that the burn ban can be implemented for.

“Before we issued this burn ban we met with the county fire association and we had the county attorney and the prosecuting look over the declaration,” says Rock. “Everyone gave it their overwhelming support.”

Ryan Sabalow, a new IndyStar reporter, has just posted this long and comprehensive story, headed "Hoosier counties banning fireworks, even though law might not be on their side." A few quotes:
Marion County, so far, hasn’t issued a ban. The city of Fishers today announced a fireworks warning. City officials said state law didn’t allow them to issue a ban outright.
Indiana Fire State Marshal Jim Greeson said the way the state’s fireworks laws are written makes it unclear whether local governments actually have authority to issue bans.

He said no one has yet challenged one of the local bans in court.

“We’re getting a lot of calls from fire chiefs and local jurisdictions asking about how to go about a countywide burn ban or institute an emergency disaster declaration,” Greeson told the Indianapolis Star on Monday.

Greeson said decisions on bans or restrictions are best left up to local officials, since they know their communities best. * * *

But Indianapolis’ fire marshal said today he’s not ready to issue a ban — yet.

Chief Fred Pervine of the Indianapolis Fire Department said his agency hasn’t responded to enough grass and vegetation fires to warrant a ban on fireworks and backyard burning in the city limits.

Pervine said he’s worried that if he issues a ban, the city’s firefighters and police will find themselves bombarded with calls from neighbors reporting illegal fireworks activity, something he worries could lead to slowdowns in 911-call response times when an actual disaster strikes.

“I don’t want to be tied up with runs for fireworks and we have a major fire somewhere,” he said.

Plus, Pervine said, he’s also not sure a ban would do much to stave off fireworks use. In fact, he said, just the opposite might happen: the publicity might encourage more people to light wicks out of spite.

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to Indiana Law

Ind. Decisions - More on: Transfer list for week ending June 22, 2012

Yesterday's transfer list entry has now been updated with details of the four cases granted transfer.

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to Indiana Transfer Lists

Environment - "EPA wins big in court challenge on greenhouse gases"

Erica Martinson of Politico has the story here. It begins:

In a surprisingly sweeping win for the Obama administration, a federal appeals court said Tuesday that the EPA is “unambiguously correct” in its interpretation of the Clean Air Act when it comes to regulating greenhouse gases.

The U.S. Court of Appeals for the D.C. Circuit dismissed or denied all petitions challenging the EPA in the massive case, Coalition for Responsible Regulations v. EPA.

The court backed the EPA’s finding that greenhouse gases are a danger to the public health and welfare and its subsequent regulations of auto emissions. The court also ruled that none of the groups challenging the agency have the legal standing to challenge rules that the EPA subsequently issued to minimize the burden of complying with the greenhouse gas regulations.

Here is the story from Lawrence Hurley, E&E reporter, Greenwire, including a link to the 82-page opinion.

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to Environment

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

For publication opinions today (5):

In Gwen E. Morgal-Henrich v. David Brian Henrich , an 11-page opinion, Judge Barnes writes:

Because Husband’s actual income during the relevant time period is known, we conclude that the trial court abused its discretion by using $390 per week as Husband’s weekly gross income. We reverse and remand for the trial court to recalculate Husband’s child support arrearage. On remand, given Husband’s fluctuating income, we recommend that the trial court use an income averaging calculation to determine Husband’s weekly gross income. * * *

The trial court properly divided the marital assets, but the trial court abused its discretion when it calculated the child support owed by Husband. We affirm in part, reverse in part, and remand for a recalculation of Husband’s child support.

In Cortney L. Schwartz v. Jodi S. Heeter, a 20-page, 2-1 opinion, Judge Bailey writes:
The parties present several issues for our review, which we consolidate and restate as:
I. Whether the trial court erred when it construed the settlement agreement’s “true up” provision to apply the previous year’s Child Support Guidelines for each year’s determination of Father’s “true up” payments;
II. Whether Mother may, upon remand, be granted relief based upon her previously-filed Petition for Modification of Support; and
III. Whether Mother is entitled to appellate attorneys’ fees under Appellate Rule 66. * * *

Here, the parties recognized that Father’s income might vary from year to year based upon occasional earnings beyond the weekly income estimated in 2009. Thus, they agreed to a procedure by which variations in Father’s income could be taken into account for purposes of determining Father’s child support obligations without requiring litigation, namely, the “true up” provision in the settlement agreement. That procedure was then incorporated into a court order. * * *

The parties’ disagreement centers on whether the language, “with all other factors remaining the same for purposes of calculating the parties’ adjusted child support obligation,” requires the parties to apply the Child Support Guidelines’ weekly child support obligation formula as it existed in 2009 or in later years. Father contends that “all other factors remaining the same” means that only line 1 of the Child Support Obligation Worksheet may change, and that the 2009 formula applies going forward until the child support obligation is modified. Mother contends that the Guidelines are to be applied as they exist in the year in which the “true up” payment will be made. Under this procedure, then, the “true up” payment for 2009 should have used the 2010 Guidelines because Father made the payment in 2010, the payment for 2010 should have used the 2011 Guidelines because Father made the payment in 2011, etc. * * *

The trial court’s construction of the “true up” agreement was erroneous, and thus its entry of summary judgment was partially in error as to Father’s “true up” obligation for 2010. Mother may not, upon remand, seek rulings from the trial court on her prior motions for modification of Father’s support obligation. Finally, we deny Mother’s request for appellate attorney’s fees under Appellate Rule 66.

ROBB, C.J., concurs.
MATHIAS, J., concurs in part and dissents in part. [beginning at p. 17] I agree with the trial court’s interpretation of the “true up” provision of the parties’ marital settlement agreement, and I respectfully dissent from the majority with regard to this issue.

In City of Indianapolis v. Rachel Bushman , a 9-page opinion by Judge Barnes, the Court reverses the trial court ruling that Buschman's tort claim notice was sufficient:
The trial court improperly granted summary judgment in Buschman’s favor on the issue of whether her notice was sufficient to inform the City of a potential personal injury claim. We reverse and remand for further proceedings.
In In Re The Matter of a Search Warrant Regarding the Following Real Estate, Sensient Flavors, LLC v. Indiana Occupational Safety and Health Administration, a 14-page opinion, Judge Vaidik writes:
The Indiana Commissioner of Labor filed a petition for an anticipatory search warrant in order to conduct an administrative inspection of Sensient Flavors LLC’s Indianapolis facility. Sensient opposed the search warrant and was successful in getting it quashed. The trial court later issued an amended search warrant that was more restrictive than the original. Although the search of Sensient’s facility has been completed, Sensient appeals the issuance of the amended search warrant, arguing that it was not supported by probable cause and unreasonable because it did not contain any limitations regarding the scope or manner of the search. Concluding that Sensient has failed to exhaust its administrative remedies, we dismiss this appeal.
In Dennis and Jeremy Cochran v. Zeroffos Hoffman and John Dye, an 8-page opinion, Sr. Judge Barteau concludes:
Based upon the foregoing discussion and authorities, we conclude the small claims court erred in its determination that the grant of an easement did not include the right to park within the easement, and we reverse the decision of the small claims court as to that issue. Further, we conclude that Jeremy failed to show error with regard to the award of damages, and we affirm the small claims court’s decision not to award damages. Affirmed in part and reversed in part.
NFP civil opinions today (0):

NFP criminal opinions today (3):

Larry R. Cox v. State of Indiana (NFP)

Robert Williams v. State of Indiana (NFP)

Koko Win v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Daniels seeking inspector general opinion on lobbying issue"

That is the heading to a story today in the Lafayette Journal Courier, reported by Eric Weddle. It begins:

Gov. Mitch Daniels will ask the state’s inspector general to weigh in on whether he can lobby lawmakers next year as Purdue University’s president.

Daniels, who was named Purdue’s 12th president last week, could be unable to pitch funding requests and other needs to the General Assembly due to his own rule that calls for a yearlong cooling off period for public officials after leaving office. Daniels won’t become acting president until January after completing his second term as governor.

Daniels’ general counsel believes the ethics rule, later incorporated into the state’s “revolving door law,” won’t affect Daniels as president, said Jane Jankowski, the governor’s spokeswoman.

“But we have contacted the inspector general office for an informal advisory opinion,” she said.

Indiana Inspector General David Thomas, whose office does not comment on investigations or confirm that they are ongoing, was appointed by Daniels in 2005.

Last week Daniels said if the rule arguably applies to him, he would appoint another Purdue official to lobby for him next year, a time when lawmakers will set the state’s biennial budget, including appropriations for the state’s seven public colleges.

Yesterday the ILB posted and quoted from the "ethics rule" referenced above, it being Executive Order 05-12. Notice that this Order, which continues in effect, covers both "lobbying the executive or legislative branches of state government." The statutory State Ethics Code, IC 4-2-6 and specifically IC 4-2-6-11, however, only covers executive branch lobbying. (See the rules of the ethics commission here.)

Two Inspector General opinions issued earlier this year may be of interest. The first #12-I-1, concerned David Pippen, former general counsel to Governor Daniels. Notice this from p. 5:

First, the former General Counsel is prohibited from accepting employment as a lobbyist for the entirety of the cooling off period. Per I.C. 4-2-6-1(b) and I.C. 4-2-7-1(5), this restriction applies to lobbying of the executive branch only. It does not include the legislative branch.
A second opinion, #12-I-2, also from last January, deals with "Director of the OMB was offered employment with a state public university." See this from p. 7-8:
In this case, it is the opinion of the Commission that a state university qualifies as a "person" and therefore is considered an "employer" as the term is defined. The Commission therefore finds that the Director’s intended employment opportunity with the University triggers consideration of the post-employment rule.

Having determined that the post-employment rule applies when a state employee goes to work for a state university, the following analysis applies to the Director’s intended employment opportunity with the University. I.C. 4-2-6-11 consists of two separate limitations: a "cooling off" period and a particular matter restriction. The first prohibition, commonly referred to as the cooling off period, would prevent the Director from accepting employment for 365 days from the date that he leaves state government under various circumstances.

First, the Director is prohibited from accepting employment as a lobbyist for the entirety of the cooling off period. In this case, the Director’s indicates that he will not be required to register as an executive branch lobbyist. To the extent the Director ensures compliance with this provision for the entirety of the cooling off period, the Commission finds that the Director’s intended employment does not violate this provision.

Second, the Director is prohibited from accepting employment for 365 days from the last day of his state employment from an employer with whom 1) he engaged in the negotiation or administration of a contract on behalf of a state agency and 2) was in a position to make a discretionary decision affecting the outcome of the negotiation or nature of the administration of the contract. In this case, it does not appear that the Director has ever negotiated or administered a contract with the University on behalf of the State. While the SBA is statutorily required to approve all contracts, the contracts are negotiated or administered by the individual agencies. Moreover, the Director delegated his signatory authority to other SBA staff members. Accordingly, the Commission finds that this restriction does not apply to the Director’s intended employment with the University.

Third, the Director is prohibited from accepting employment for 365 days from the last day of his state employment from an employer for whom he made a regulatory or licensing decision that directly applied to the employer or its parent or subsidiary. The Commission finds that this restriction does not apply to the Director’s intended employment with the University because he did not make regulatory or licensing decisions affecting the University at any time during his tenure with the State.

Fourth, the Director is prohibited from accepting employment from an employer if the circumstances surrounding the hire suggest the employer’s purpose is to influence him in his official capacity as a state employee. The information presented to the Commission does not suggest that the University’s offer of employment was extended to the Director in an attempt to influence him in his capacity as a state employee. Accordingly, the Commission finds that this restriction does not apply to the Director’s intended employment with the University.

Finally, the Director is subject to the post-employment rule’s "particular matter" prohibition in his potential employment. This restriction prevents him from working on any of the following twelve matters if he personally and substantially participated in the matter as a state employee: 1) an application, 2) a business transaction, 3) a claim, 4) a contract, 5) a determination, 6) an enforcement proceeding, 7) an investigation, 8) a judicial proceeding, 9) a lawsuit, 10) a license, 11) an economic development project, or 12) a public works project. The particular matter restriction is not limited to 365 days but instead extends for the entire life of the matter at issue, which may be indefinite.

Registration as a lobbyist before the General Assembly is a different statute.

IC 2-7-1 concerns legislative lobbyists. The Indiana lobby registration commission established by IC 2-7-1.6-1. IC 5-14-7 covers legislative liaisons.

IC 2-7-1-9(b) provides:

(b) The following are not considered lobbyists: (1) A public employee or public official.
"Public official" is defined by IC 2-7-1-14:
"Public official" means an individual who holds office in the executive, judicial, or legislative branch of the state or federal government or a political subdivision of either of those governments and includes an official or employee of a state educational institution.
In sum:

The one-year prohibition (cooling off period) of the State Ethics Code (although not the original executive order) only applies to executive branch lobbying.

The separate statutory requirement that legislative lobbyists register does not apply to state universities.

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to Indiana Government

Ind. Law - "Youngsters learning driving skills behind the wheel of a golf cart"

Daniel Suddeath has the story in the New Albany News & Tribune. A quote:

[T]he New Albany-Floyd County Parks and Recreation Department buses children to Cannon Acres twice a week to teach them some fundamentals of driving from the safety of a golf cart.

On Tuesdays and Thursdays, Parks & Recreation Director Kathy Wilkerson sets up a course at the park complete with a stop sign and cones designed to educate the children who participate.

They also get to learn some driving skills by operating the golf carts, Wilkerson said.

“It’s teaching them the rules of the road,” she said.

Perhaps bicyclists statewide should also be required to learn the rules of the road, such as obeying stop signs and not riding the wrong way in traffic, especially on one-way streets ...

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to Indiana Law

Courts - "Justices Define Narrow Opening on Immigration"

Stories today give a range of different interpretations of the SCOTUS decision yesterday in Arizona v. US. In Indiana, the impact will likely turn on how federal Judge Sara Evans Barker applies the decision to the two pending lawsuits challenging the Indiana statute.

This graphic on the front page of today's NY Times I found to be particularly useful, showing the locations of the six states that have enacted Arizona-type laws. The Times also has an interactive version of the opinion.

Adam Liptak's story in The Times is headed "Blocking Parts of Arizona Law, Justices Allow Its Centerpiece."

Here is NPR's Nina Totenberg's nearly 5-minute report this morning on the decision. From the summary: "The Supreme Court struck down key provisions of Arizona's restrictive immigration law on Monday. But it upheld — for now — a central section known as the "show-me-your-papers" provision. The 5-3 decision warned, however, that the court could ultimately strike down that provision, too." In the audio, Ms. Totenberg says the Court practically says, "Bring us a test case."

Here is SCOTUSblog's Lyle Denniston's opinion recap and analysis.

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to Courts in general

Vacancy #2 on Supreme Court 2012 - Applications Due Friday: Some thoughts about cover letters--with an example

The following post is from Indiana University Robert H. McKinney School of Law Professor Joel Schumm, who (the ILB is pleased to report) will be be blogging and offering commentary again this round as he did for the Boehm and Shepard vacancies.

Supreme Court Applications Due Friday: Some thoughts about cover letters--with an example

The Judicial Nominating Commission requires applicants to complete a lengthy application form, and Supreme Court applications often run fifteen or more pages. Although not explicitly mentioned in the instructions, some applicants take the opportunity to include a cover letter with their application. Cover letters are currently not posted online with the application itself, but they are publicly available documents.

A cover letter provides applicants an opportunity to introduce themselves to the Commission and distill their professional accomplishments into a single page. This is not easily done but is time well spent. For example, earlier this year Judge Maria Granger’s letter was lauded by one commission member for the following sentence: “My role as judge means to respect precedent, to interpret and not make law, to faithfully apply the law and deliver impartial justice.” The letter also does an excellent job of weaving her upbringing, personal and professional experience, and commitment to the judicial role into a positive and powerful message of just one page. A redacted version of the letter may be accessed here.

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Gov't. - "Public Universities See Familiar Fight at Virginia"

Some quotes from this must-read article in today's NY Times, written by Tamar Lewin:

Across the nation, it has been a rocky year for public university presidents * * *

“Each situation is a little different, but the trend is apparent,” said Molly Corbett Broad, president of the American Council on Education. “The staggering reduction in financial support from the state puts a lot of pressure on campus. There’s increasing politicization of governance. And there are rising expectations that universities will transform themselves very quickly, if not overnight. Somehow, they’re supposed to achieve dramatic improvement in learning productivity and at the same time reduce costs by using educational technology.” * * *

[Helen E. Dragas, the rector of the U of Virginia Board of Vistors, which ousted the current president, Teresa Sullivan] has been especially concerned about pushing ahead in online learning, to keep up with Stanford, M.I.T. and other universities that have, just in the last year, begun to offer “massive open online courses,” or MOOCs, free to anyone with an Internet connection, carving out new territory in an area that most universities are just beginning to explore.

While many of the new MOOCs are enrolling more than 100,000 students, most, so far, have been from overseas — so that, at least for the time being, the real competition is with foreign universities, not American ones.

Nonetheless, the sheer scale of the new online courses has jolted every leading university into thinking about how online learning may transform higher education: * * *

Dr. Sullivan said that online education was no panacea — and indeed, was “surprisingly expensive, has limited revenue potential and unless carefully managed can undermine the quality of instruction.”

And while she agreed that she is, indeed, an incrementalist, she stressed that that did not mean she lacked a strategic plan.

“Corporate-style, top-down leadership does not work in a great university,” she said. “Sustained change with buy-in does work.”

Many public university presidents, past and present, said that those on the boards of the leading universities — typically business executives without much experience in academia — do not always understand the complexities of leading a large research university, and the degree to which a president can succeed only by persuading.

The above are only highlights from the article.

Posted by Marcia Oddi on Tuesday, June 26, 2012
Posted to Indiana Government

Monday, June 25, 2012

Courts - "Lyle Denniston, icon of Supreme Court press corps"

Liz Goodwin, Yahoo! News, writes today about SCOTUSblog's Lyle Denniston. A few quotes:

On Monday, the first day of the final week that two landmark Supreme Court decisions will be announced, all eyes will be focused on veteran Supreme Court reporter Lyle Denniston. Not only is the 81-year-old a bastion of legal knowledge, but he's also a speed demon, and is often the first to report the outcome of cases live on SCOTUSblog, a legal website. * * *

"[The justices] are very real people," he says. "And mostly they're accessible and they're fascinating people. I learn a lot from them every time I have a conversation with them. They're all younger than me now that Justice Stevens has retired. I like to see these young people develop."

Over his 54 years, Denniston has reported on a quarter of all the justices ever to be appointed to the Supreme Court, and he's outlasted the careers of 10 justices, who were selected and then retired in his time covering the court. He got his start as a local court reporter in Nebraska when he was only 17 years old.

When asked if he's seen another decision that has attracted as much attention as Obama's health care case, Denniston cites Bush vs. Gore and Roe v. Wade. He also jokingly mentions Marbury v. Madison, which established the Supreme Court's right to overturn laws in 1803. "I wasn't around then but some people maybe think I was," Denniston says.

ILB: Here is an example of Denniston's work - one of his entries from mid-day is an analysis of the Supreme Court's action this morning that "solidified" Citizens United. A quote:
The brevity of the unsigned (“Per Curiam”) opinion for the majority overruling the Montana Supreme Court suggested that the five Justices who jointed in Citizens United were totally unmoved by a stack of friend-of-court briefs urging the Court to reconsider that decision in the wake of the flood of money going into races this year, especially for the presidency and for seats in Congress. The whole of the majority’s reasoning was contained in these three sentences:

“The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does…Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.” Those final words were an indication that this year’s spending patterns, often by supposedly “independent” groups known as “Super PACs,” did not justify reopening the decision that allows unlimited independent spending by corporations and labor unions. Since that decision, a lower court has interpreted it to mean that unlimited contributions can be made to independent spending groups.

Posted by Marcia Oddi on Monday, June 25, 2012
Posted to Courts in general

Ind. Law - Indiana is one of "29 States That Could Make Adult Children Pay for Mom’s Care"

That according to a WSJ blog entry today by Kelly Greene. Some quotes:

Twenty-nine states have “filial support” laws on the books that could be used to go after patient’s families for unpaid long-term-care bills. * * *

Ind. Code Ann. §§ 31-16 -17-1 thru 7 (Liability of children for support of parents & contribute to burials) Ind. Code Ann. § 35-46-1-7 (Crime)

The entry cites "a recent paper by Katherine Pearson, a law professor at Pennsylvania State University."

See also another WSJ blog item, "When Kids Are Left With Parents’ Bills." It includes a link back to the June 22 $$$ WSJ story titled "Are You on the Hook for Mom's Nursing-Home Bill?."

Posted by Marcia Oddi on Monday, June 25, 2012
Posted to Indiana Law

Ind. Gov't. - "A bulldog named Julie"

John Russell had a cool story June 6th in his IndyStar blog, "John on Deadline," about an enterprising young journalist who has joined the Star for the summer as a Pulliam Fellow.

Her last gig included confronting the president and the board of trustees of Ohio's Kent State University. A quote from her story:

In June the Kent State Board of Trustees awarded President Lester Lefton his full performance bonus—$100,394—for the fifth year in a row.

But the board and the university would just as soon not talk about it.

A three-month examination by the Daily Kent Stater, including three separate public records requests to obtain documents relevant to the president’s evaluation, revealed the administration at Ohio’s second largest public university operates much like a private institution in its awarding of the president’s bonus.

Posted by Marcia Oddi on Monday, June 25, 2012
Posted to Indiana Government

Ind. Courts - "Delaware Deciding Significant Issues of Indiana Tax Law in Casino Bankruptcy; Indiana Supreme Court Denies Transfer to Hear Matter"

Among the cases denied transfer today was Indianapolis Downs, LLC v. Department of State Revenue.

To understand the import of that denial, see this new post at the Indiana Tax Reporter.

Posted by Marcia Oddi on Monday, June 25, 2012
Posted to Indiana Transfer Lists

Ind. Gov't. - "The Trickiest Question About Daniels’ Hire: Can He Lobby For Purdue?"

Kyle Stokes of State Impact Indiana has an article today under that heading.

It caused me to look back in the ILB archives from 2005, when Governor Daniels first took office, I found reference to this Executive Order 05-12, making it the 12th one issued by the Governor the year he began his first term. A few quotes:

4. No state officer, employee, or special state appointee shall accept other employment involving compensation of substantial value if the responsibilities of that employment are inherently incompatible with the responsibilities of public office or require the individual’s recusal from matters so central or critical to the performance of the individual’s official duties that the individual’s ability to perform those duties would be materially impaired.

The Inspector General is directed to create procedures for the issuance of an advisory opinion granting approval to outside employment, which advisory opinion would serve as conclusive proof that such employment is not in violation of this section and is consistent with the State’s desire to attract quality individuals who are successful in the community and/or private sector and are willing to serve the State in some capacity.

8. No state officer, employee, or special state appointee who leaves state government after January 10, 2005 shall accept employment or receive compensation for one year:

a. as a lobbyist engaged in lobbying the executive or legislative branches of state government in Indiana;
b. from an employer if the former officer, employee, or special state appointee was engaged in the negotiation or administration of one or more contracts with that employer or in a position to make a discretionary decision affecting the outcome of the negotiation or administration of such a contract; or
c. from an employer if the former officer, employee, or special state appointee made a regulatory or licensing decision that directly applied to the employer or to a company that controls, is controlled by, or is under common control with, the employer.
On May 11, 2006 the ILB posted this entry on the status of executive orders in Indiana. It looked at the interplay between the three branches of government, beginning:
The General Assembly makes law by enacting statutes; the Supreme Court makes law by writing opinions; the Governor makes law by issuing executive orders. The devil is in the details of the interactions between the three. * * *

For the May 2006 issue of Res Gestae, I have written an in-depth column about the use of executive orders by Indiana governors. Two issues are examined:

(1) Does a governor’s executive order continue in effect when his term is over?

(2) Can the general assembly by passing a statute preempt an area – thereby invalidating an executive order on the same subject?

Posted by Marcia Oddi on Monday, June 25, 2012
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending June 22, 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 May 20, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, June 22, 2012. It is four pages (and 47 cases) long.

Four transfers were granted last week:

Posted by Marcia Oddi on Monday, June 25, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Steven Brown v. Chris Guinn, a 9-page opinion, Judge Najam writes:

In June of 2009 Brown and Guinn contracted for Brown to take possession of Guinn’s 2003 Coronado truck (“the truck”). In addition to taking possession, Brown assumed Guinn’s monthly payments on the truck to Daimler Truck Financial. The written contract did not contain a specific term or a specific amount of payment, but it did permit either party to cancel the contract at any time. Brown had drafted the contract. * * *

Brown argues that the trial court’s denial of his Rule 41(B) motion was erroneous because Guinn had failed to produce the written contract that was the basis for his claim. According to Brown, Guinn’s failure to produce the contract required dismissal under Indiana Small Claims Rule 2(B)(4)(a) and Indiana Code Section 26-1-2.1-201(1). Brown is mistaken. * * *

In sum, we hold that the trial court did not abuse its discretion when it denied Brown’s motion for involuntary dismissal. We also hold that Brown has not demonstrated that the trial court’s findings and conclusions are clearly erroneous. As such, we affirm the court’s judgment.

NFP civil opinions today (1):

Jesse Clements v. Ralph Albers (NFP)

NFP criminal opinions today (4):

Jeremy W. Lawson v. State of Indiana (NFP)

Ryan Keith Winchester v. State of Indiana (NFP)

Casey R. Greene v. State of Indiana (NFP)

Scott W. Schwichtenberg v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 25, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - Statement of Indiana AG's office on SCOTUS decision today in Arizona immigration case [Updated]

Here is a statement from the Attorney General's office:

Today the United States Supreme Court ruled in the case of Arizona v. United States concerning the constitutionality of Arizona’s immigration law and whether federal law should preempt a state-level immigration statute. This case has been closely watched since Indiana also has a state-level immigration statute currently under legal challenge.

The Indiana General Assembly in 2011 passed Senate Enrolled Act 590, which among other things allowed Indiana police officers to arrest illegal immigrants who are subject to immigration court removal orders, and would have prohibited the use of foreign consular identification cards as valid ID in the state. Enforcement of that statute is on hold due to a federal court preliminary injunction.

By law, the Indiana Attorney General’s Office defends state laws the Legislature passes from lawsuits plaintiffs file. Currently the AG’s Office is defending SEA 590 from two separate legal challenges: Union Beneficia Mexicana v. State of Indiana, filed in U.S. District Court for the Northern District of Indiana, and Buquer v. City of Indianapolis, filed in U.S. District Court for the Southern District of Indiana. The Northern District court on June 6 stayed the UBM case until the U.S. Supreme Court ruled in the Arizona case, which it did today.

The Indiana Attorney General’s Office is analyzing today’s ruling to determine its impact on the two ongoing cases and will likely request permission from the two federal district courts to submit additional briefs to take into account today’s Supreme Court opinion.

Indiana Attorney General Greg Zoeller offered this comment on the case:

“The U.S. Supreme Court’s decision provides valuable guidance to Indiana and other states in the proper role we serve in cooperation with the federal government in enforcing immigration laws,” Zoeller said. “The failure of Congress to reform our immigration statutes has put states in the difficult position of seeking this guidance from the judicial branch. My office will take the time necessary to review the court’s decision today in more detail and make decisions regarding our two cases currently pending in which Indiana is a party. After thorough review, we plan to advise Indiana’s legislature of any necessary changes to our current statutes.”

In the case decided by the Supreme Court, the State of Indiana was one of 15 states to sign an amicus brief authored by the State of Michigan that was filed in February in support of the State of Arizona.

[Updated at 12:22 PM] See also this story by Lesley Weidenbener for the Evansville Courier & Press, that reports:
INDIANAPOLIS — A U.S. Supreme Court decision striking down key parts of an Arizona immigration law also means that similar Indiana provisions are unconstitutional, an attorney for the American Civil Liberties Union of Indiana said Monday.

"The Supreme Court basically said that – as we have argued in our case – immigration is exclusively the province of the federal government and states cannot interfere or enter that arena," said Ken Falk, the attorney who filed one of two challenges to the Indiana law, which the General Assembly passed last year.

The nation's high court ruled against provisions of the Arizona law that permitted state and local police to arrest individuals without a warrant if the officers believed them to be illegal immigrants.

Indiana's law had gone even further, Falk said. It said police could arrest an illegal immigrant because of felonies the individual had committed in the past – or if the federal government had issued a detainer or notice of action, even if federal officials had allowed the person to remain in the country.

Falk said that Indiana provision will not stand under the Supreme Court's decision in the Arizona case.

"It seems to me that if the Arizona law is preempted, obviously the Indiana law is preempted," Falk said.

Posted by Marcia Oddi on Monday, June 25, 2012
Posted to Indiana Law

Ind. Decisions - Supreme Court decides one today

In Sharon Gill, on her own behalf and on behalf of the Estate of Gale Gill v. Evansville Sheet Metal Works, Inc., a 16-page, 5-0 opinion, Justice Sullivan writes:

The plaintiff claims that her husband’s death was caused by the defendant’s negligence in installing or removing asbestos-containing materials. The trial court ruled for the defendant because the claim had not been brought within the time Indiana law requires for a claim arising from the construction of an “improvement to real property.” We reverse the trial court because there is a genuine issue of material fact as to whether the defendant’s work constituted an “improvement to real property,” as that phrase is commonly understood. * * *

The meaning of the term “improvement to real property” as used in the CSoR (Construction Statute of Repose) is a matter of first impression for this Court. * * *

Most legislatures have not defined the term “improvement to real property” as used in their respective building statutes of repose. As a result, many courts have been called upon to determine both the meaning of “improvement to real property” in this context and whether a particular item or project constitutes such an improvement. Broadly speaking, two general approaches have emerged – a common-law fixture analysis and a “commonsense” analysis. * * *

We think that the commonsense approach is more persuasive than the pure fixtures approach. * * *

Therefore, we hold that an “improvement to real property” for purposes of the CSoR is “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.” Webster’s Third New International Dictionary 1138 (unabridged ed. 1976). Put differently, an “improvement to real property” is (1) an addition to or betterment of real property; (2) that is permanent; (3) that en-hances the real property’s capital value; (4) that involves the expenditure of labor or money; (5) that is designed to make the property more useful or valuable; and (6) that is not an ordinary repair. In applying this commonsense definition, judges and lawyers should focus on these indi-vidual criteria but they should not lose sight of the fact that this is a definition grounded in com-monsense. The fact that a purported improvement satisfies each of these individual criteria may not be sufficient for it to be an improvement within the meaning of the CSoR if it would do violence to the plain and ordinary meaning of the term as used in the construction context. ** *

In short, ESMW failed to make a prima facie showing that it was entitled to summary judgment on the basis of the CSoR because it designated no evidence indicating that it construct-ed an improvement to real property at Alcoa. Summary judgment was therefore improper.

We briefly address another aspect of the opinion of the Court of Appeals – its criticism of the trial court’s local rule allowing prediscovery motions for summary judgment. Although that decision is now vacated, we think a response to this criticism is warranted to dispel any doubts that opinion may have cast on the trial court’s application of its local rules. * * *

We agree with the Court of Appeals that whether something constitutes an improvement to real property is a fact-sensitive inquiry that may require discovery in some cases. But we dis-agree with its conclusion that Local Rule 714 cannot be applied in this context. Local Rule 714 does not alter the substantive requirements for summary judgment, nor could it, see T.R. 81. Thus, if discovery is needed to determine whether something constitutes an improvement to real property, then the trial court should deny the movant’s initial motion for summary judgment un-der Local Rule 714 because the movant has not met its initial burden – i.e., it has not made the requisite prima facie showing. This is quite different from concluding, as the Court of Appeals did, that the trial court should not allow a Rule 714 motion in the first place. In short, this is not the type of situation envisioned by the narrow exception discussed in Meredith.

We reverse the trial court’s judgment in favor of ESMW on Gill’s contractor-negligence claim and remand for further proceedings.

ILB: The Dec. 15, 2010 (yes 2010) COA opinion in Gill is summarized here, 3rd case.

Posted by Marcia Oddi on Monday, June 25, 2012
Posted to Ind. Sup.Ct. Decisions

Courts - Today at the SCOTUS

The Court decides the immigration case, Arizona v. US. Per Tom Goldstein of SCOTUSblog: "for now, Arizona can apply the "check your papers" provision. And the Court's opinion is a guide to the State on how to apply that provision without being invalidated... The Court's decision on the "show your papers" provision strongly suggests it will have to be read narrowly to survive. ... On net, the #SB1070 decision is a significant win for the Obama Administration. It got almost everything it wanted."

The Court will convene again on Thursday.

More - From SCOTUSblog:

Justice Kagan announced the opinion for the Court in Miller v. Alabama and Jackson v. Hobbs, holding, in a 5-4 vote, that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.”
The Court also summarily reversed, 5-4 a Montana Supreme Court decision contrary to Citizens United. See AP story here. Here is per curiam opinion.

Posted by Marcia Oddi on Monday, June 25, 2012
Posted to Courts in general

Ind. Gov't. - "Parents, judges, prosecutors and other officials in Indiana say there is a multiagency failure to provide mental health services to the children who need it most."

This weekend the NWI Times (along with the South Bend Tribune) continues its focus on child abuse. Marisa Kwiatkowski's June 24th story is headlined "Parents advised to 'abandon' children in order to secure mental health services." Some quotes:

Parents, judges, prosecutors and other officials in Indiana say there is a multiagency failure to provide mental health services to the children who need it most. Children who don't get appropriate services can end up in the juvenile delinquency system.

As a last resort, some region parents told The Times they were advised to "abandon" their children to obtain mental health services. * * *

A recent report published by the National Center for State Courts found there are more than 30 Indiana-based entities, committees or groups that focus on various issues affecting children.

The Bureau of Developmental Disabilities Services, Division of Mental Health and Addiction, Indiana Department of Education, Medicaid and DCS are among those that share responsibility for Indiana children who need mental health services.

The National Center for State Courts report found a lack of communication among key agencies that causes duplicated efforts, divisiveness and extra costs to taxpayers. It also found that most people are unclear about the purpose of each entity.

The result is a tangled network of agencies that can be difficult to navigate for parents like John — and for those who work in a mental health profession. While many Indiana children receive mental health services, child welfare advocates say an increasing number are falling through the cracks.

Posted by Marcia Oddi on Monday, June 25, 2012
Posted to Indiana Government

Catch-up: What did you miss over the weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?

From Sunday, June 24, 2012:

From Saturday, June 23, 2012:

Posted by Marcia Oddi on Monday, June 25, 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 6/25/12):

Thursday, June 28th

Next week's oral arguments before the Supreme Court (week of 7/2/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/25/12):

Next week's oral arguments before the Court of Appeals (week of 7/2/12):

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 Monday, June 25, 2012
Posted to Upcoming Oral Arguments

Sunday, June 24, 2012

Courts - The blog SCOTUSblog featured in long Forbes story

Dan Diamond of Forbes has a long story today on the blog, SCOTUSblog. A sample:

SCOTUSblog turns ten this year, and while the site’s long been known in the legal community, it’s enjoying a star turn for its yeoman’s coverage of the ACA.

A “go-to source,” according to The New Republic's Jonathan Cohn. “As always…the place to follow [the] Court’s decisions,” tweeted the Washington Post's Sarah Kliff.

That’s as much for what the blog doesn’t do. While other legal analysts have blustered, SCOTUSblog’s commentary could best be described as “spare and balanced.” Journalists have been drawn to the site’s easy-to-access archives and “Plain English” translations of legal cases, too.

Posted by Marcia Oddi on Sunday, June 24, 2012
Posted to Courts in general

Ind. Decisions - Federal judge Pratt upholds Indiana's Facebook ban for sex offenders

Updating several entries from last month on "Sex offenders fight for right to use Facebook" (see most recent here, from May 31st), Judge Tanya Walton Pratt on Friday issued her ruling in the case of John Doe v. City of Indianapolis.

Charles Wilson of the AP has the story this evening, headed "Judge upholds Indiana's Facebook ban for sex offenders." From the long story:

On Friday, Judge Tanya Walton Pratt said in an 18-page order that the state has a strong interest in protecting children and that the rest of the Internet remains open to those who have been convicted.

"Social networking, chat rooms, and instant messaging programs have effectively created a 'virtual playground' for sexual predators to lurk," Pratt wrote in the ruling, citing a 2006 report by the National Center for Missing and Exploited Children that found that one in seven youths had received online sexual solicitations and one in three had been exposed to unwanted sexual material online. * * *

Courts have long allowed states to place restrictions on convicted sex offenders who have completed their sentences, controlling where many live and work and requiring them to register with police. But the ACLU claimed that that Indiana's social networking ban was far broader, restricting a wide swath of constitutionally protected activities.

The ACLU contended that even though the 2008 law is only intended to protect children from online sexual predators, social media are virtually indispensable and the ban prevents sex offenders from using the websites for political, business and religious activities.

But Pratt found that the ban is limited only to social networking sites that allow access by children, and that such sites aren't the only forms of communication on the Internet.

"The Court readily concedes that social networking is a prominent feature of modern-day society; however, communication does not begin with a "Facebook wall post" and end with a "140-character Tweet," she wrote.

Here is a copy of the 18-page 6/22/12 opinion in Doe v. Prosecutor. And here is a copy of the 1-17-12 complaint.

Posted by Marcia Oddi on Sunday, June 24, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Child abuse: How can we tell?"

The South Bend Tribune continues its focus on child abuse this Sunday with two stories by Virginia Black. The first is "Child abuse: How can we tell?," that begins:

In one courtroom, a judge apparently doesn't believe reports of a 6-year-old's accounts of his father's violence are serious enough to warrant taking him from that home.

In another, a different judge hears about a 4-year-old who says his parents locked him in a basement and that the boy's 5-year-old sister might have been sexually abused because she could describe her father's body parts. Yet the children's parents say neither is true.

And in the well-publicized case of 10-year-old Tramelle Sturgis, whose father was recently convicted of torturing and murdering the boy in November after years of abuse, testimony indicated that the Sturgis children usually denied they were being abused. Much of the questioning was conducted in the presence of their father or after he had been notified of the allegations.

When to believe the words of children -- often the only witnesses of their mistreatment -- is not an exact science, experts acknowledge.

The second story is headed "More on child abuse: What really happened?."

Posted by Marcia Oddi on Sunday, June 24, 2012
Posted to Indiana Courts

Environment - "Man gets probation, home detention for decade of environmental violations in Michigan City"

Saarah Tompkins reported June 20th in the NWI Times in a story that begins:

HAMMOND | The former superintendent of Michigan City's wastewater treatment plant narrowly avoided a prison sentence Wednesday after violating the Clean Water Act for almost a decade.

Daniel R. Olson, of Merrillville, was sentenced to two years probation -- including one year of home detention -- and ordered to pay a $15,000 fine. This sentence was a departure from Olson's sentencing guideline range and the two years in prison the government requested.

"Mr. Olson, I'm sure you realize that today you're getting a big break," Judge Joseph Van Bokkelen said. "The sentence of 24 months (the government) suggested was not without merit."

Van Bokkelen said the 16 letters of support from Olson's family and friends and the fact he had no criminal history factored into the decision for a probation sentence.

Olson, 63, was the operator and superintendent of Michigan City's J.B. Gifford Wastewater Treatment Plant for nearly a decade until 2010. During that time, he tampered with E. coli monitoring, directing employees to delay taking samples until the E. coli levels would fall within the plant's permit guidelines. He also made false statements on environmental reports about bypasses and total residual chlorine levels, pleading guilty to the three Clean Water Act-related counts in April 2012.

Prosecutors argued Olson lied to keep his job, allowing fecal matter to flow out into Trial Creek, a tributary about 1.5 miles upstream of Lake Michigan. The overflows also caused flooding in the homes of residents who paid his salary, argued Richard J. Powers, a trial attorney with the U.S. Department of Justice who was on the case.

Posted by Marcia Oddi on Sunday, June 24, 2012
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Courts - More on "Durham Faces Trial Over Fair Finance Co"

Updating this ILB entry from June 11th, the verdict came in on Wednesday, June 20th. Here are a few quotes from the story by Ken Kusmer of the AP, as updated June 21st:

NDIANAPOLIS—An Indianapolis businessman accused of looting an Ohio-based finance company after buying it and bilking about 5,000 mostly elderly investors out of more than $200 million was convicted Wednesday on all counts.

A federal jury found Tim Durham guilty of securities fraud, conspiracy and 10 counts of wire fraud. His business partners, James F. Cochran and accountant Rick D. Snow, also were convicted of conspiracy and securities fraud, and some wire fraud counts. When sentenced, the men could face decades in prison. * * *

Jurors began deliberations Wednesday morning after the judge denied a request from Durham's attorney for a mistrial.

Posted by Marcia Oddi on Sunday, June 24, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - One reporter's "toughest tweeting challenge"

From an article in the Indianapolis Star today by reporter Carrie Ritchie - some quotes:

Earlier this year, I tweeted the entire criminal trial of Indiana's former secretary of state, Charlie White. I even tweeted when the guilty verdict came in at around 2:20 a.m. Feb. 4. Being the first to break the news was exhilarating, even at 2:20 a.m.

But in-court tweeting can be challenging, and not because you have to condense everything into fewer than 140 characters. Courts often have strict rules about the use of cell phones, which, of course, are essential to tweeting.

Federal courts typically have the strictest rules. They insist on all phones being shut off in the courtroom. Sometimes, court staff ask to see your phone to ensure that it's off, and they will kick you out if you refuse to cooperate (Trust me, I've come dangerously close to being removed.).

During the past two weeks, I faced my toughest tweeting challenge yet. U.S. District Court Judge Jane Magnus-Stinson, who presided over Indianapolis businessman Tim Durham's fraud trial, prohibited cell phones and electronic devices during the trial. You couldn't bring them into the courtroom; you had to lock them in a bank of lockboxes outside the door. * * *

The no-phones rule also heightened the competition between me and reporters from other news outlets. Every time the court took a recess, we raced outside to the lockboxes to see who could tweet the highlights first. The poor marshals barely had time to get of our way, and I'm sure they lived in fear of being trampled.

As the trial went on, the competition became more intense. One day toward the end of the prosecution's witnesses, I saw a reporter sneak out during testimony that wasn't particularly exciting. When he returned, I asked suspiciously, "Were you tweeting?"

Posted by Marcia Oddi on Sunday, June 24, 2012
Posted to Indiana Courts

Stage Collapse - "Stage collapse victims offered an additional $7.2M" Or is it $13.2 million? With conditions

That headline from yesterday's Indianapolis Star, this story by Bill McCleery.

This lengthy press release issued Friday by the Indiana Attorney General’s Office begins:

Victims of the Indiana State Fair stage-rigging collapse can apply starting next week for an additional $13.2 million to compensate those physically injured and the estates of those who died, Indiana Attorney General Greg Zoeller announced today. The funding available to State Fair claimants includes $6 million in supplemental state compensation the Indiana General Assembly approved, plus another $7.2 million in private money that two companies named as defendants in State Fair-related lawsuits are offering at the Attorney General’s request. The private funds will be paid out upon collective support among the claimants and state funds will be paid out by the end of the year pursuant to state law.
These are two different pots of money, the $6 million approved by the General Assembly, and the "$7.2 million in private money that two companies named as defendants in State Fair-related lawsuits are offering at the Attorney General’s request."

However, it appears that claimants may not elect to receive funds from the General Assembly's supplemental fund without also signing on for the private money, and the application is conditioned on "sign[ing] a form releasing Mid-America and James Thomas Engineering from any liability [as well as] releasing the state from any legal obligations." From the AG's press release:

All claimants who want to participate in the additional compensation – both public and private dollars – must sign a form releasing Mid-America and James Thomas Engineering from any liability and releasing the state from any legal obligations. Claimants who accept these settlements still are able to pursue any litigation against various other private defendants stemming from the stage-rigging collapse.

Posted by Marcia Oddi on Sunday, June 24, 2012
Posted to Stage Collapse

Courts - "The remaining merits cases as of June 23: In Plain English"

See the post from SCOTUSblog's Amy Howe. Some quotes:

Counting the health care cases as one “case,” and the juvenile life-without-parole cases as one “case” too, this week the Court will decide five argued cases, issuing between six and eight opinions. * * *

Although Monday is the last day on which the Court is currently scheduled to release decisions, it almost certainly will add one or two additional decision days: Wednesday and/or Thursday.

Posted by Marcia Oddi on Sunday, June 24, 2012
Posted to Courts in general

Friday, June 22, 2012

Ind. Gov't. - "Retired Illinois state workers will have to pay for health insurance"

Story today in the Chicago Tribune about our neighboring state to the west, reported by Ray Long. Some quotes:

Springfield - Gov. Pat Quinn on Thursday approved legislation requiring thousands of retired state employees to chip in on the costs of health care insurance that many of them get for little or nothing.

The law tries to rein in the state's rising costs but also seeks to share the expense with the 78,000 retirees who now pay no premiums for their insurance.

The Quinn administration will set premiums each year for the group health program, which includes retired judges, lawmakers, university employees and rank-and-file state workers. Currently, retired legislators get free premium health insurance after four years of service, retired judges after six years and retired state and university employees after 20 years — one of the most generous plans in the country.

The annual cost to taxpayers is nearly $800 million, and if left unchecked threatens to hit $1 billion in the new budget year that starts July 1, according to legislative supporters.

Posted by Marcia Oddi on Friday, June 22, 2012
Posted to Indiana Government

Law - "Loans, lawsuits pile up as law school grads face worst job market in more than 30 years"

That is the headline today of Ameet Sachdev's Chicago Law column in the Chicago Tribune. The subhead: "Just 55 percent in Class of 2011 have found full-time jobs as lawyers, according to newly required data."

Posted by Marcia Oddi on Friday, June 22, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 5 today (and 2 NFP)

For publication opinions today (5):

In German American Financial Advisors & Trust Co. d/b/a German American Investment Svcs., Primevest Financial Svcs., Inc., and Jeffery W. Tooley v. Dennis M. Reed, a 16-page, 2-1 opinion, Judge Najam concludes:

Again, we hold that Appellants have satisfied their burden to show (1) the existence of an enforceable arbitration agreement and (2) that the disputed matter is the type of claim that is intended to be arbitrated under the agreement. While we are unimpressed with Appellants’ failure to locate the proper documentation to support their first motion to compel, they ultimately met their burden on the second motion to compel arbitration, which is the only issue before us, and Reed has not offered any evidence to refute the evidence pointing to a valid arbitration agreement. Further, under the doctrine of equitable estoppel, Reed is required to arbitrate his claims against GAFA, as well as against PrimeVest and Tooley. We reverse and remand with instructions to the trial court to enforce the parties’ arbitration agreement on Reed’s claims against each of the Appellants.

FRIEDLANDER, J., concurs.
BARNES, J., concurs in part and dissents in part with separate opinion. [that begins, on p. 13] I concur with the majority’s resolution of Issue One in this appeal. I respectfully dissent, however, from its conclusion in Issue Two that GAFA may compel Reed to submit his claims against it to arbitration.

First, Indiana law is that parties are only bound to arbitrate those issues that by clear language they have agreed to arbitrate, and arbitration agreements will not be extended by construction or implication to cover any other matters.

In William T. Carter, derivatively on behalf of CNO Financial Group, Inc. v. R. Glenn Hilliard, et al., a 29-page opinion, Judge Najam concludes:
Pre-suit demand on a board of directors is a prerequisite to filing a derivative action. Here, to show that demand on the Director Defendants would have been futile, the Amended Complaint must allege with particularity facts to show either that the directors could not have made a disinterested decision upon demand or that they faced a substantial likelihood of liability for their conduct as board members. The Amended Complaint contains only conclusory allegations on these points. Carter also could have avoided demand by showing that the Director Defendants had breached their duties of good faith or loyalty. Again, the Amended Complaint falls short, failing to allege with particularity facts to show such breaches. Therefore, again, Carter has not shown that demand would have been futile. As such, the trial court did not err when it granted Defendants’ motion to dismiss for failure to make pre-suit demand. Affirmed.
In In Re: Prosecutor's Subpoena Regarding S.H. and S.C.; S.H. v. State of Indiana, an 8-page opinion, Judge May writes:
S.H. and S.C. (collectively, “Parents”) appeal a trial court order granting the State’s petition to compel their testimony by providing use immunity. Parents argue a prosecutor may not grant use immunity when there is no grand jury proceeding and the persons whose testimony is sought have not been charged with a crime. * * *

While Parents’ argument is persuasive, we cannot reconcile the result they advocate with our Indiana Supreme Court’s statement that a prosecutor has the same ability to accumulate evidence as does a grand jury. We must agree with the State that the legislature’s explicit reference to grand jury proceedings in Ind. Code § 35-34-2-8 cannot be read to restrict the right of a prosecutor to seek use immunity when prosecution is initiated by means of an information rather than an indictment. Nor could the legislature have intended that prosecutors have fewer investigative tools before deciding to bring charges than they do after charges are brought. We accordingly affirm the trial court.

In Rafael Bocanegra v. State of Indiana , a 12-page 2-1 opinion, Judge May writes:
Rafael Bocanegra appeals his conviction of forgery, a Class C felony. Bocanegra argues the State did not prove his intent to defraud. We affirm and remand. * * *

We therefore hold potential injury remains a sufficient basis for a finding of criminal intent in a forgery prosecution. As the jury could have reasonably inferred Bocanegra’s misrepresentations subjected his employer to potential injury, we affirm his conviction of forgery and remand for vacation of the identity deception conviction. Affirmed and remanded.

BROWN, J., concurs.
SULLIVAN, Sr.J., dissents with separate opinion. [that concludes] I conclude that there is insufficient proof of an injury to Keystone because it received the benefit of Bocanegra’s work regardless of his legal status, without any negative consequences set forth in the record. In my opinion, Bocanegra’s conviction is not sustained by the evidence. For the reasons stated above, I would reverse Bocanegra’s conviction for forgery.

In Karla P. Estrada v. State of Indiana, a 25-page opinion, Sr. Judge Garrard writes:
Karla P. Estrada appeals her convictions and aggregate twenty-four-year sentence for two counts of Class B felony armed robbery as an accomplice and one count of Class C felony conspiracy to commit robbery. We affirm.

Estrada presents four issues, which we reorder and restate as:
I. Whether the trial court abused its discretion by denying her motion to dismiss.
II. Whether the trial court abused its discretion by admitting her statement to police into evidence.
III. Whether her conspiracy conviction violates Indiana’s double jeopardy prohibition.
IV. Whether her twenty-four-year sentence is inappropriate.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Carl E. Thomas, III v. State of Indiana (NFP)

Kevin L. Govan v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 22, 2012
Posted to Ind. App.Ct. Decisions

Ind Courts - So how important are oral arguments? Supreme Court cites video of oral argument

Yesterday's Supreme Court decision in Indiana Department of Revenue v. United Parcel Service, Inc. twice cited statements from the oral argument. Here from the top of p. 4:

As UPS declared at oral argument, it ultimately desired to bear its own risks for worker’s compensation and package damage losses. Oral Arg. Video Tr. at 26:02-26:40. And UPS accomplished this end through the reinsurance arrangement with its Affiliates. Oral Arg. Video Tr. at 26:02-26:40.
A search of Court's website for Supreme, Appellate and Tax Court opinions reveals no other citations to "Oral Arg. Video Tr." and only a few citations to "Oral Arg. Tr." It turns out these are all from 1998-2000 Tax Court decisions. A Lexis search turned up the same cases, plus a half-dozen Tax Court opinions from 2005 with citations to the "Oral Arg. Tr."

Apparently, the Tax Court keeps a transcript of its oral arguments. In addition, recently the Tax Court has begun to videocast at least some of its oral arguments, which are then archived.

I have been told that the Court of Appeals does not create or keep transcripts of its oral arguments. Within the past few years, some its oral arguments, those that take place in the COA or Supreme Court chambers, have been videocast and archived.

I don't know that transcripts are made of arguments before the Supreme Court, or if they were made in the past. With rare exception, however, all of its oral arguments are videocast, and the archives go back to 2001.

Posted by Marcia Oddi on Friday, June 22, 2012
Posted to Ind. Sup.Ct. Decisions

Courts - More on yesterday's SCOTUS rulings [Updated]

Updating this ILB post from yesterday, Lyle Denniston, writing for SCOTUSblog, has an "opinion recap" on the cases (Hill and Dorsey) from the 7th Circuit. It begins:

Without saying whether its ruling will affect thousands, or only hundreds, the Supreme Court on Thursday took one more step away from the long-standing policy of punishing “crack” cocaine criminals far more aggressively than those whose crimes involved cocaine in powdered form. The 5-4 ruling in Dorsey v. U.S. (11-5683) and a companion case gave judges the option of giving those convicted in “crack” cases lower sentences than they would have received under rules in effect when they committed their crimes.
Adam Liptak of the NY Times has a good look at yesterday's opinions. Here is one paragraph I found particularly interesting [my emphasis]:
By a 6-to-3 vote, the court ruled that recent cases insisting on an expanded role for juries in determining facts to support prison sentences and the death penalty also apply to criminal fines.

The case, Southern Union Co. v. United States, No. 11-94, arose from the conviction of a natural gas distributor for storing mercury, a hazardous waste, without a permit. The law the company violated allowed fines up to $50,000 a day, and the government contended that the company had violated the law for 762 days. That would have added up to about $38 million.

The trial judge imposed penalties of about $18 million.

The company objected, contending that the jury had found only that the company violated the law for at least one day. The federal appeals court in Boston accepted that view but said it did not matter. The trial judge, it said, was entitled to determine how to calculate the penalties.

Writing for the majority, Justice Sotomayor said that the principles announced in a groundbreaking series of decisions starting with Apprendi v. New Jersey in 2000 applied in this context, too.

Apprendi revolutionized sentencing law by ruling that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

ILB: A similar issue came up in a civil law context at IDEM many years ago. The case involved a company called Elkhart Cases, it made cases for musical instruments. This was, as I recall, when hearing officers were still part of IDEM, rather than in a separate agency (now the Office of Environmental Adjudication). Indiana statutes provide penalties of $25,000/day for various violations. An issue in Elkhart Cases involved calcuation of the penalty. I remember nothing more except that it was a big controversy ...

[Updated] Re the Elkhart Cases issue, a reader responds:

In that case the ALJ assigned the maximum penalty for each day of violations, which amounted to a mega penalty, which was the ALJ's way of attempting to force IDEM to adopt a penalty policy.
[More] See also this write-up of Southern Union by Lawrence Hurley, E&E reporter.

Posted by Marcia Oddi on Friday, June 22, 2012
Posted to Courts in general | Environment

Thursday, June 21, 2012

Ind. Law - Many new laws taking effect July 1st

The Indiana Senate Democrats blog, The Briefing Room, has a long entry today with summaries of many of these new laws, plus links.

Posted by Marcia Oddi on Thursday, June 21, 2012
Posted to Indiana Law

Ind. Courts - More on: Case filed by ACLU yesterday against BMV poses interesting administrative law / rulemaking question

Updating this ILB entry from earlier today, this press release from the Indiana ACLU gives background on the complaint:

Indianapolis - A single working mom of six young children received a surprise missive from the Indiana Bureau of Motor Vehicles. Her driver's license, it said, would be suspended for a year, because she did not carry auto insurance. Yet this mom, who now depends on a friend to drive her to work, did not even own a car and was not legally required to have insurance at the time of the BMV's punishment.

The American Civil Liberties Union of Indiana filed a lawsuit on Wednesday to require the BMV to reinstate this mom's driving privileges on the basis that the BMV's actions are contrary to Indiana law and violate due process as guaranteed by the Fourteenth Amendment to the U.S. Constitution. The suit includes a request for class action on behalf of the estimated thousands of Hoosiers also caught up in the BMV's purge.

In 2010, the Indiana General Assembly established the "Previously Uninsured Motorist Registry" and charged the BMV with issuing regulations to make it work. The BMV never did so, but in 2011 it began randomly selecting individuals from the registry using non-published criteria and sending them notices of license suspension for not having insurance -- even though they might not be required by law to have insurance.

"It makes no sense to punish persons when they are not violating Indiana law," said Ken Falk, legal director of the ACLU of Indiana. "The action is particularly troublesome given the profound and immediate impact, economic and otherwise, that loss of ability to drive brings. This harms not only the individual, but the public at large."

"It is disturbing that the BMV is not following the law," said ACLU of Indiana Interim Executive Director Frank Young. "But even worse is the incomprehensible Catch 22 situation that has resulted in unfair and unconstitutional treatment of Hoosiers."

Posted by Marcia Oddi on Thursday, June 21, 2012
Posted to Indiana Courts

Ind. Decisions - Another opinion today from the Supreme Court

In Roy Lee Ward v. State of Indiana, a 52-page, 5-0 opinion in a direct appeal to the Supreme Court for post-conviction relief, Justice Sullivan writes:

Roy Lee Ward appeals the denial of his petition for post-conviction relief from his sen-tence of death. We affirm the post-conviction court’s decision for the reasons set forth in this [52-page] opinion.

Posted by Marcia Oddi on Thursday, June 21, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Two justices and four appellate judges must stand for retention this year

Two justices and four appellate judges must stand for retention this year. That is, if they wish to be retained for a 10-year term. Under IC 33-25-2-2, relating to appeals court judges:

A judge who wishes to be retained in office shall file a statement with the secretary of state, not later than noon July 15 of the year in which the question of retention of the judge is to be placed on the general election ballot, indicating that the judge wishes to have the question of the judge's retention placed on the ballot.
Who must stand for retention in 2012, if they wish to continue in office?

Two of the five members of the Supreme Court: Justice Steven H. David and Justice Robert D. Rucker. Justice David (appointed 10/18/10) would be standing for his first 10-year term, Justice Rucker for his 2nd (appointed 11/1/99). Justice Mark S. Massa is not yet eligible for retention, as 2 years have not passed since the date of his initial appointment (4/2/12).

Four members of the Court of Appeals must stand for retention in order to continue in office: Judges John G. Baker, Michael P. Barnes, Nancy H. Vaidik and Paul D. Mathias. Judge Martha B. Wentworth of the Tax Court is not yet eligible to stand for a 10-year term because she took office 1/17/11. (The other new COA-level judges, Cale J. Bradford and Elaine B. Brown, stood for retention in 2010.)

So far, according to the Secretary of State's office, Justice David and Judges Baker, Barnes and Vaidik have filed. The filing deadline is July 15th and Brad King of the SOS office says "We are linked to Supreme Court's judicial retention website, which will go live July 15, I understand."

BTW, although the Supreme Court justices standing for retention will be on ballots statewide, for the Court of Appeals judges, only Judge Vaidik will be on every ballot statewide; Baker will only be on 1st district ballots and Barnes and Mathias will only be on 3rd district ballots. (The districts are explained here on the COA website.)

Posted by Marcia Oddi on Thursday, June 21, 2012
Posted to Indiana Courts

Ind. Courts - Case filed by ACLU yesterday against BMV poses interesting administrative law / rulemaking question

In a complaint filed yesterday in Marion County Superior Court, White v. Indiana BMV, the Indiana ACLU contends that the BMV is acting without authority in certain cases, because the BMV has not promulgated rules to implement the applicable state. Some quotes from the 12-page complaint:

1. Indiana Code chapter 9-25-10, establishes a "Previously Uninsured Motorist Registry" ("PUMR") for persons who have operated a motor vehicle without financial responsibility following December 31, 2009. Indiana Code § 9-25-10-5 specifically requires that the Bureau of Motor Vehicles ("BMV") promulgate mles to implement the PUMR. Despite the statutory requirement, the BMV has never done so. Nevertheless, without any mles, the BMV has proceeded to randomly select persons from the PUMR and suspend their driver's licenses, or suspend their "driving privilege" for those persons without a license, if the selected persons do not have proof of financial responsibility on the date of their selection. The BMV is taking this action against persons who are not otherwise required under Indiana law to have proof of financial responsibility. This exceeds the BMV's statutory authority and violates both Indiana Code § 9-25-10-5 as well as the Indiana Administrative Rules and Procedures Act ("ARPA"), Ind. Code § 4-22-2-13, et seq. To the extent that the Commissioner of the BMV is punishing persons who do not have financial responsibility when they are not required to have financial responsibility by Indiana law, the Commissioner is acting in an arbitrary and irrational manner in violation of the due process of law guaranteed by the Fourteenth Amendment to the United States Constitution.

2. If persons are selected to demonstrate they have financial responsibility and fail to respond, they will lose their driver's licenses or driving privileges pursuant to Indiana Code § 9- 25-10-6 that provides that failure to respond is "prima facie evidence of operating a motor vehicle without financial responsibility" in violation of Indiana law. However, given that there are many reasons that a person on the PUMR may, consistent with Indiana law, not have financial responsibility, the presumption created by Indiana Code § 9-25-10-6 is unconstitutional as violating due process.

3. This action is brought pursuant to Indiana law and 42 U.S.c. § 1983, to redress the deprivation, under color of state law, of rights secured by the United States Constitution. * * *

28. Indiana Code § 9-25-10-5 provides that the BMV:

shall adopt rules under IC 4-22-2 to implement this chapter. Rules adopted under this section must do the following:
(1) Establish the method of random selection of names of previously uninsured motorists from the registry.
(2) Establish the methods by which the bureau may request evidence of financial responsibility from a previously uninsured motorist whose name was randomly selected from the registry.
(3) Establish the methods by which a previously uninsured motorist may respond to the bureau's request for evidence of financial responsibility.
29. Although the BMV, in 2010, published a notice of intent to engage in rulemaking, the BMV has not promulgated the requisite regulations, which violates the statutory requirements found in Indiana Code section 9-25-10-5.

58. The BMV's demand that persons demonstrate financial responsibility in the absence of the regulations required by Indiana Code § 9-25-10-5, is not allowed by Indiana law and represents void and unlawful action pursuant to a non-promulgated mle in violation of the Indiana Administrative Rules and Procedures Act, Indiana Code § 4-22-2-13, et seq .. as well as unlawful action under Indiana Code § 9-25-10-5.

Posted by Marcia Oddi on Thursday, June 21, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP), including interesting opinion by Sr. Judge Shepard

For publication opinions today (1):

In Byron Chan v. State of Indiana, a 4-page opinion, Sr. Judge Shepard wrties:

When a shoplifter steals goods priced at $97, does the $7 in sales tax that would have been due if he had purchased the items mean that their “retail value” was $104 such that the forfeiture statutes entitle the State to seize the car the thief used to drive to the scene of the crime? * * *

Both Chan and the State have advanced entirely respectable interpretations of the forfeiture statute. One says “retail value” is the price of the goods without tax, and the other says most people think of value as how much they had to pay when they purchased the goods.

In the presence of two competing reasonable interpretations, courts construe forfeiture statutes much in the same way they construe statutes creating crimes. Hornbook law says that criminal statutes are construed according to a rule of lenity that serves to protect against creating a crime by mere construction. 8 Indiana Law Encyclopedia Criminal Law § 7 (2004). Likewise, forfeitures are not favored in the law, and statutes authorizing forfeitures are strictly construed. 36 Am. Jur. 2d Forfeitures and Penalties § 8 (2011); see also Gomez v. Vill. of Pinecrest, 17 So. 3d 322 (Fla. Dist. Ct. App. 2009), approved, 41 So. 3d 180 (Fla. 2010); People v. Borash, 354 Ill. App. 3d 70, 820 N.E.2d 74 (Ill. App. Ct. 2004), appeal denied.

Of course, application of this canon leads to the conclusion that “retail or repurchase value” should be read as meaning the price of the goods without the addition of the sales tax due on the transaction.

We thus reverse the trial court.

NFP civil opinions today (1):

Glenda A. Wilson v. Roland B. Wilson, Jr. (NFP)

NFP criminal opinions today (5):

Walker Whatley v. State of Indiana (NFP)

Fernando Padilla-Romo v. State of Indiana (NFP)

Herbert E. Robertson, III v. State of Indiana (NFP)

Sidney D. Bennett v. State of Indiana (NFP)

Jeffery Roshell v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 21, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, so far

In Indiana Department of Revenue v. United Parcel Service, Inc., an 11-page, 5-0 opinion, Justice Rucker writes:

In this case we examine whether income received by a corporation’s affiliated foreign reinsurance companies falls within the ambit of Indiana’s gross premium privilege tax statute and is on that basis exempt from Indiana adjusted gross income tax. * * *

In sum, even assuming UPINSCO and UPS Re reinsured Indiana risks, there is no evidence in the record before us that the reinsurance transactions took place in the State of Indiana. Stated somewhat differently, none of the summary judgment materials presented to the Tax Court and in consequence nothing before this Court establishes that during the years in question UPINSCO and UPS Re were doing business within the State of Indiana. Because this is a necessary condition in order to be “subject to” the premium tax, UPS failed in its burden of establishing that it is entitled to summary judgment as a matter of law. Because we are definitely and firmly convinced the Tax Court’s determination to the contrary is in error, we reverse the grant of summary judgment in favor of UPS and remand this cause for further proceedings.

Conclusion. The judgment of the Tax Court is reversed and this cause remanded.

Posted by Marcia Oddi on Thursday, June 21, 2012
Posted to Ind. Sup.Ct. Decisions

Courts - SCOTUS opinions today of note

"In 6-3 opinion, SCOTUS finds that Apprendi rule applies to criminal fines" - see Sentencing Law blog The case is Southern Union. "The rule of Apprendi v. NJ applies to the imposition of criminal fines. The First Circuit is reversed. The vote is 6-3." per SCOTUSblog.

Dorsey and Hill, the Fair Sentencing case out of 7th Circuit. "The Seventh Circuit is vacated and remanded. The vote is 5-4. Justice Scalia dissents, joined by the Chief and Alito and Thomas" per SCOTUSblog. "The Court holds that the FSA's new mandatory minimums applies to sentences for crack cocaine imposed after the Act for pre-Act crimes."

SCOTUSblog:
"The fact that the Court did not announce that Monday will be the last day means there will definitely be opinions after Monday."

[Update at 11:45 AM]
Much more now from Sentencing Law Blog.

Posted by Marcia Oddi on Thursday, June 21, 2012
Posted to Courts in general

Wednesday, June 20, 2012

Ind. Decisions - A third opinion today from the Supreme Court

In Rondell Walker v. State of Indiana, a 2-page, 4-1 per curiam opinion, in a case where the Court of Appeals had affirmed the trial court 20-year sentence in a NFP opinion, the Suprme Court writes:

Having reviewed the matter, we grant transfer of jurisdiction, and direct revision of the sentence from twenty years to twelve years. See Abbott v. State, 961 N.E.2d 1016, 1017-1019 (Ind. 2012) (“but for the police officer’s choice of location in stopping the car in which Abbott was a passenger, he would have received no more than the maximum three-year sentence for his possession of less than three grams of cocaine.”); Ind. Appellate Rule 7(B). In all other respects, the decision of the Court of Appeals is summarily affirmed. See Ind. Appellate Rule 58(A).

Dickson, C.J., and Sullivan, Rucker, and David, JJ., concur.

Massa, J., would deny transfer.

Posted by Marcia Oddi on Wednesday, June 20, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Settlement Amounts Disclosed In Two Lawsuits Filed Against Dubois County"

Mick Birge, 18WJTS news director, reports today:

72-thousand, 500 dollars!

That how much Dubois County is paying three former county employees who sued the county and others in separate lawsuits.

In a published report today in the Herald [ILB - unfortunately, not accessible w/o $$$], former county assistant custodian Kathy Kern received $45,000 in a settlement agreement she signed in April to drop her 2011 lawsuit against the county alleging sexual discrimination.

Also, former deputy prosecutors Deborah Schroeder Dysert and Christine St. John have been paid settlements by the county after they dropped the county from their lawsuit filed more than two years in their ongoing dispute with former county prosecutor Mike Fritch. In settlement agreements signed in March of this year, Schroeder Dysert received $7,500 and St. John received $20,000.

Earlier, county attorney Art Nordhoff said that terms of the settlement were confidential and that no tax money was used to pay the settlements. He said the county's liability insurance policy paid the settlements.

The Herald is reporting it was given copies of the settlement from Nordhoff after filing an inquiry with the Indiana public access counselor last week. [emphasis by ILB]

See 2005 ILB discussion of the opinion in Knightstown Banner, LLC v. Town of Knightstown, et al.: "The Indiana Court of Appeals ruled Tuesday that a weekly newspaper had a right to see details of a settlement that Knightstown reached with the former employee."

BTW, using the "Search the ILB Transfer Lists" database (see here), I just checked and found that transfer was denied in Knightstown on 7/24/06.

Posted by Marcia Oddi on Wednesday, June 20, 2012
Posted to Indiana Government

Ind. Decisions - ILB's "Search the ILB Transfer Lists" database has been updated

Looking to see whether a case was granted or denied transfer in the past 8 years?

The database created by the ILB, "Search the ILB Transfer Lists," has just been updated - it now covers over 8 years of transfer lists, from Feb. 2, 2004 through May 20 2012.

Access it here (it is also listed in the right column, under "Indiana Legal Resources").

Posted by Marcia Oddi on Wednesday, June 20, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Town of Zionsville, Indiana and Zionsville Plan Commission v. Hamilton County Airport Authority , a 14-page opinion, Sr. Judge Shepard writes:

The Hamilton County Airport Authority owns an airport located next door in Boone County, within the Town of Zionsville. The Authority contends that it is not subject to any Boone County zoning or to the covenants it executed to obtain airport zoning from Boone County. The trial court agreed.

The Indiana Supreme Court has held that a general unit of government maintains zoning authority within its boundaries, even as to other general governments. It has also made clear that this authority cannot be employed for abusive or unreasonable interference. Adhering to these principles, we reverse.

In Jason Michael Palilonis v. State of Indiana, a 37-page opinion, Judge Vaidik writes:
Jason Palilonis was convicted of Class B felony rape for raping a fellow Vincennes University student after a night where both had been drinking. A year after the incident, the victim, B.S., committed suicide. At trial, statements Palilonis made to the police, statements B.S. made to the nurse during her sexual-assault examination, and evidence of B.S.’s death were admitted into evidence over Palilonis’s objections. Testimony from a nurse vouching for the credibility of B.S.’s statements about the rape was also admitted, but without any objection from Palilonis. The jury found Palilonis guilty, but four days later a juror alleged juror misconduct, specifically that the foreperson told the jury the judge thought Palilonis was guilty and some of the jurors were aware that B.S. had committed suicide. Evidentiary hearings were held, and the trial court found that no misconduct occurred. This was the correct course of action for the trial court to take in this situation, and Palilonis’s argument is merely asking us to reweigh the evidence adduced at the evidentiary hearings, which we may not do.

We also hold that the trial court did not err in admitting evidence of B.S.’s death, as this was the fairest resolution for both parties of the issue of why B.S. was not testifying at trial. Finally, we find that the statements B.S. made to the nurse during her sexual-assault examination are admissible under Evidence Rule 803(4) and the reasoning in Perry v. State, 956 N.E.2d 41 (Ind. Ct. App. 2011), for the description of the events of the rape.

NFP civil opinions today (0):

NFP criminal opinions today (5):

Danny L. Weaver v. State of Indiana (NFP)

Mickey S. Owen v. State of Indiana (NFP)

Walter James Blake v. State of Indiana (NFP)

Ronnie D. Inabnitt v. State of Indiana (NFP)

Bakari Edwards v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 20, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two today from the Supreme Court

In the Matter of: Douglas W. Patterson is a 5-page, 5-0, per curiam, attorney disciplinary opinion that concludes:

The Court concludes that Respondent violated Indiana Professional Conduct Rules 8.4(b) and 8.4(c) by committing three counts of class D felony theft of client funds and by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

For Respondent's professional misconduct, the Court disbars Respondent from the practice of law in this state effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26).

The costs of this proceeding are assessed against Respondent.

Here is a long list of ILB entries on Mr. Patterson, including, from 2011: "Lawyer suspended in 2008 sentenced to nine years in prison for stealing from the trust fund accounts of 23 clients."

In John Berry v. State of Indiana, a 13-page, 5-0 opinion, Justice David writes:
After a bench trial, the trial court rejected the defendant’s insanity defense, finding that the defendant’s behavior was the result of his voluntary abuse of alcohol. The Court of Appeals reversed, concluding that the defendant suffered from “settled insanity,” a mental disease or defect caused by the defendant’s prolonged and chronic abuse of alcohol, which rendered him unable to appreciate the wrongfulness of his conduct.

We affirm the trial court because there was credible expert testimony that defendant’s behavior was caused by his voluntary abuse of alcohol.

Posted by Marcia Oddi on Wednesday, June 20, 2012
Posted to Ind. Sup.Ct. Decisions

Vacancy #2 on Supreme Court 2012 - Making the applications available to the public online

The deadline to apply to fill the upcoming vacancy in Justice Sullivan's seat is Friday, June 29th.

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.

Yesterday I had a very pleasant lunch with Kathryn Dolan, the Indiana Supreme Court Public Information Officer, who invited me in order to explain how the selection processes are to be handled in the future, both as to public online access to the candidates' applications, and public access to the materials not posted online.

I learned that after the applications are received on Friday, June 29th, or early on the following Monday, a list of all who have applied will be released.

Thereafter, at a time not yet determined, the Judicial Nominating Commission (JNC) will meet and go through the applications and decide which of the applicants will be considered for interviews. Those will be the applications to be posted online, presumably well before the initial July 17-18 interviews. The remaining applications (if any), and all other application materials (such as letters of recommendation, transcripts, etc.) will be made available at a location to be arranged in the Statehouse as in the past.

It appears that the JNC, which is made up of three members representing the public (and appointed by the Governor), three members representing Indiana's attorneys (and elected by them), and chaired by the Chief Justice of Indiana, is assuming direct responsibility for public access to the nomination process.

Posted by Marcia Oddi on Wednesday, June 20, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Law - "Indiana Holding 'Virtual Public Hearing' on Raw Milk Sales"

That is the heading to Dan Flynn's story today in Food Safety News. It begins:

Driving to Indianapolis for a public hearing about raw milk in the heat of the season is probably the last thing Hoosiers want to do this summer.

Instead the Indiana State Board of Animal Health (BOAH) is conducting a three month long "virtual public hearing" on the sale of raw milk. The virtual public hearing got under way June 1 and will not be over until the first of September.

The Indiana General Assembly gave health board's 11 members, including six veterinarians, the job of studying raw milk over the summer. BOAH has a December 1 deadline for submitting its report in order for it to be in time for the 2013 session of the General Assembly.

"As we began planning our strategy for writing this report, we wanted to find a way for every Hoosier to participate," said Terry Philibeck, BOAH's dairy division manager. "Because attending public hearings can be a challenge to busy schedules and people geographically scattered across the state, we decided to host a 'virtual' public hearing to gather input."

Here is the Indiana State Board of Animal Health webpage stating:
The Indiana State Board of Animal Health is accepting comments on raw milk consumption and sales. You are not required to attend a meeting to give your input. Feel free to submit your comments; however, please note anonymous comments will not be accepted. Consider this your virtual public hearing.

From June 1 to September 1, the public will be able to use the online submission page to contribute ideas and suggestions as well as input on the subject of the sale of raw milk.

Posted by Marcia Oddi on Wednesday, June 20, 2012
Posted to Indiana Law

Ind. Gov't. - More on: AG's Public Access Seminar series explains open records, meetings

Updating this ILB entry from June 14th, which announced:

The Attorney General is holding public access seminars around the State. (For attorneys, there is 2.0 free CLE credit available.)
I attended the Indianapolis meeting last evening. It was quite good. Check the link in the June 14th entry for sessions in your part of the state.

At last evening's session, I had an opportunity to raise the issue pointed out at the end of this June 16th ILB entry about the Commission on Public Records, where I noted:

The ILB was sorry to see this statement on the OCPR page: "Agendas will be posted as soon as they are available; minutes will be posted after the following month's meeting, at which they are approved. (The January minutes are approved at the February meeting, and posted afterwards, etc.)"

Many agencies make their draft minutes available as soon as they have been prepared, which may be much preferable insofar as public access to information is concerned.

The implication of the OCPR statement, to me at least, was that you can't see the minutes until they have been approved at a subsequent meeting...

It turns out, as I learned last evening, that this issue of access to "draft" minutes has been raised a number of times over the years. Here is what may be the first PAC opinion on the question, from 1998 (98-8), by the first Public Access Counselor, Anne Mullin O'Connor. It begins:

You have requested a written opinion as to whether draft or proposed minutes of public meetings held by boards, commissions, authorities, councils, committees, bodies or other public entities taking official action on public business are "public records" as defined in Indiana Code section 5-14-3-2, and therefore, subject to inspection and copying under the Access to Public Records Act, Indiana Code 5-14-3, et al (hereinafter, "APRA.") For the reasons set forth below, it is my opinion that draft or proposed minutes of public meetings are disclosable public records and must be made available for inspection and copying under the APRA. When disclosing draft minutes, the public agency should also notify the recipient that the minutes are subject to change and the approval of the appropriate person or governing body.

Posted by Marcia Oddi on Wednesday, June 20, 2012
Posted to Indiana Government

Tuesday, June 19, 2012

Law - The Confrontation Blog

Thanks to How Appealing for pointing to a blog I was unaware of, The Confrontation Blog, by Richard D. Friedman, the Ralph W. Aigler Professor of Law at the University of Michigan Law School. "This blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary."

Posted by Marcia Oddi on Tuesday, June 19, 2012
Posted to General Law Related

Ind. Decisions - Tax Court posts one today

In Harsukh and Parul Bosamia v. Marion County Assessor, an 8-page opinion posted late this afternoon, Judge Wentworth writes:

Harsukh and Parul Bosamia appeal the Indiana Board of Tax Review’s final determination upholding their commercial real property assessments for the 2007 and 2008 tax years. The matter is currently before the Court on the Marion County Assessor’s Motion to Dismiss due to the Bosamias’ failure to timely file the certified administrative record as required by Tax Court Rule 3(E). The Court finds the case should be dismissed.

Posted by Marcia Oddi on Tuesday, June 19, 2012
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - Steve Schultz gets new job from Gov. Daniels

Posted late this afternoon in the Louisville Courier Journal, reported by Marcus Green:

Steve Schultz has resigned as executive director of the Louisville and Southern Indiana Bridges Authority to become a special adviser to Indiana for its portion of the Ohio River Bridges Project. * * *

Schultz, a former chief counsel to Indiana Gov. Mitch Daniels, said he will work for the Indiana Finance Authority and be paid about $190,000 annually, including salary and travel allowances.

Schultz was a candidate for the Indiana Supreme Court in 2012. Another former chief counsel to Governor Daniels, Mark Massa, was appointed to that Supreme Court position by the Governor.

Posted by Marcia Oddi on Tuesday, June 19, 2012
Posted to Indiana Government | Vacancy on Supreme Court 2012

Ind. Decisions - One today from Supreme Court

In Tina Whiting v. State of Indiana, a 13-page, 5-0 decision, Justice Sullivan writes:

During voir dire, a prospective juror stated that she could not be fair because she knew the defendant, the defendant’s grandmother, the victim’s family, and the attorneys. The trial judge denied a joint challenge for cause. The defendant did not strike the juror with any of her available peremptory challenges, and the juror served on the jury. We hold that the defendant’s claim of error regarding the denial of the challenge for cause is procedurally defaulted, and thus unavailable for review, because she failed to exhaust her peremptory challenges. We also hold that her claim is not reviewable for fundamental error.

Posted by Marcia Oddi on Tuesday, June 19, 2012
Posted to Ind. Sup.Ct. Decisions

Law - "Reducing law school class size: the right thing to do"

Indianapolis attorney Gary L. Miller sends along (with permission of the author) this commentary from Richard Zitrin, a professor at UCHastings and the lead author of three books on legal ethics, including The Moral Compass of the American Lawyer. It was published June 11th in The Recorder. He writes that UC-Hastings Dean Frank Wu announced that:

He has pushed UCHastings to embark on a wide-ranging "strategic plan;' the centerpiece of which is to reduce its class size by 20 percent, from a current average of 425 students and a student body of more than 1,250 to a class size of about 330 and a student body under 1,000. The reduction in class size will start with next fall's first-year class.
Zitrin's column concludes:
Last August, I challenged law schools to "do the right thing," take a good hard look at themselves, and ask whethel; "if you are not - serving your students ... do you have a legit-imate purpose?" It's one thing to throw down the gauntlet in a newspaper column, and quite ano!her for the dean of the oldest and one of the most prestigious California law schools to not only say it but to act on it as forcefully as Frank Wu has done. If UCHastings succeeds in this downsizing - and there's no reason to think it won't -let us hope others will quickly follow.

Posted by Marcia Oddi on Tuesday, June 19, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

For publication opinions today (1):

In Alan Patrick McEntee v. Wells Fargo Bank, N.A. , a 13-page opinion, Judge Bailey writes:

Alan Patrick McEntee, pro se, appeals from the denial of his motion to correct error, which challenged the trial court’s entry of summary judgment, which granted Wells Fargo Bank N.A.’s foreclosure claim and denied McEntee’s counterclaim for damages. We reverse and remand for further proceedings.

McEntee presents several issues for our review, which we reframe as whether the trial court abused its discretion when it denied McEntee’s motion to correct error requesting the trial court to set aside its entry of summary judgment in favor of Wells Fargo and against him. * * *

The trial court erroneously entered summary judgment in favor of Wells Fargo on its foreclosure claim because Wells Fargo failed to establish that there was no genuine issue of material fact as to the allegation that McEntee had defaulted on the note. The trial court’s entry of summary judgment in favor of Wells Fargo on McEntee’s counterclaims was also in error because Wells Fargo did not establish the absence of a genuine issue of material fact as to McEntee’s affirmative defense, and because McEntee’s counterclaim concerning emotional distress was not properly before the trial court at summary judgment. We therefore reverse the trial court and remand this matter for further proceedings.

NFP civil opinions today (4):

Suzanne Throgmartin v. Gregg Appliances, Inc. (NFP) - Deals with Third-party practice, or impleader, governed by Indiana Trial Rule 14.

Jennifer Alao-Hamed v. Adeniran Alao-Hamed (NFP)

Kenneth Watson v. P.C. Operating, LLC d/b/a Mentone Mini Mart, Paladin Global Development, Paladin Commercial LLC and Scientific Games International, Inc. (NFP)

Martin A. Harriman v. Kristina A. Harriman (NFP)

NFP criminal opinions today (8):

Victoria Peak v. State of Indiana (NFP)

Jeffrey D. Pruitt v. State of Indiana (NFP)

Kunta K. Gray v. State of Indiana (NFP)

Robert Sean Morphett v. State of Indiana (NFP)

Kimberly S. Lakin v. State of Indiana (NFP)

Michael Eward v. State of Indiana (NFP)

Shawn Lamont Alexander v. State of Indiana (NFP)

Michael Priddy v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 19, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Report just released from IU on "How fiscal constraints affect the Indiana judiciary and access to justice"

Here is the 12-page report, I haven't reviewed it yet, but have looked at the conclusion:

Elected leaders and officials of government face tough challenges in determining the most effective means of providing judicial services. From empirical evidence, those states that have moved toward a unified system of court administration have improved efficiency, effectiveness, and equality in their provision of justice. In addition, increased professionalization and management training appear to be critical components in operating a well-functioning court system. Judges, administrators, and staff should have the capability to manage increasingly large and complex caseloads. Evidence also suggests that significant cost saving can be realized through the use of electronic case filing and management systems. However, implementing any or all of these approaches to judicial service provision requires careful planning, the buy-in of local judges and administrators, and adequate resources necessary to implement them.

Posted by Marcia Oddi on Tuesday, June 19, 2012
Posted to Indiana Courts

Ind. Gov't. - Still more on: PAC issues opinion in challenge to public notice of Purdue Board of Trustees' meeting "at O'Hare Airport"

Updating this ILB entry from June 15th, the Lafayette Journal Courier's editorial today concludes:

The rules about meeting notification apply equally to executive sessions and open meetings. If meeting places as vague as O’Hare can be given for a Purdue trustees closed session, what stops a county council from holding a controversial rezoning vote in a place simply marked Tippecanoe County Courthouse? Think you could play hide and seek through every nook and cranny of the four-story structure fast enough to beat some future, unscrupulous public officials’ vote? Good luck.

If the public access counselor’s read on the open door law is that broad, don’t be surprised when public officials figure out how to make access laws bend their way even more.

ILB note: This may be all the ILB reports from Lafayette area for a while, as I've been notified that I've reached their free article limit.

Posted by Marcia Oddi on Tuesday, June 19, 2012
Posted to Indiana Government

Ind. Decisions - "Supreme Court's inaction frees Lafayette man from prison"

The case of Corey Nathan Fletcher v. State of Indiana, mentioned earlier today in the transfer list entry, and in this June 14th entry headed "Supreme Court decides 4-1 that transfer was improvidently granted in speedy trial case; rare written dissent," is the subject of this story today by Sophia Voravong in the Lafayette Journal Courier, headlined "Supreme Court's inaction frees Lafayette man from prison."

Posted by Marcia Oddi on Tuesday, June 19, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Lafayette dentist's license removal slow, painful"

A lengthy story today in the Lafayette Journal Courier, reported by Eric Weddle, begins:

The license of a Lafayette dentist was revoked after a state board ruled on a troubling eight-year pattern of unethical behavior, unnecessary treatment and damaging procedures, according to state documents.

Before the State Board of Dentistry stopped Alexander M. Levitt from practicing in April, he already had paid nearly $100,000 in four malpractice settlements and been released from two employment contracts in Indiana.

The case against Levitt, who ran Alldent Complete Dentistry at 3554 Promenade Parkway and, before that, practiced in Kokomo, shows just how long it can take state officials to build a case and revoke a practitioner’s license, say those familiar with the case.

“I feel the need for the story to be told. When you hear the details, this doesn’t seem to be the right amount of time it should take,” said Steven Hollar, a Warsaw dentist and State Board of Dentistry president.

“It is a very sad for our profession to have anyone that is entrusted by patients to behave like this. It is a black eye on our profession and the opinion patients have of dentists.”

Hollar believes a change in state legislation would allow his board to investigate more quickly complaints on dentists. That in turn would lead to quicker hearings by the attorney general’s office.

“The reality, when you go into a medical profession, you have to be honest, you have to be ethical. And like with everything, some people are not,” Hollar said. “At the bottom level, that is what he did. I’m sure he treated some patients fine, but there are some egregious ones.”

Posted by Marcia Oddi on Tuesday, June 19, 2012
Posted to Indiana Government

Courts - Implications of SCOTUS decision relating to Navajo tribe may be much broader

Lyle Denniston of SCOTUSblog writes about yesterday's SCOTUS opinion in Salazar (Interior Secretary) v. Ramah Navajo. The post begins:

The federal government is often accused of spending money it does not have. It may have to do just that, a divided Supreme Court decided on Monday, if it signs a contract that promises to pay in full when the work is done, but runs out of the money provided by Congress. There is a sort of government “slush fund” that might be tapped, the Court indicated, but otherwise it is up to Congress to figure out how to fulfill the government’s financial commitments; it can’t force contractors to do without all of what they earned. * * *

[T]he legal conclusion reinforced Monday went well beyond deals with Indians, and imposed on the federal government the flat duty to pay in full when a contractor performs one side of a bargain after getting that promise, even when Congress had not explicitly provided enough to pay all such contractors in full. The decision, while very important to tribal governments (they may be eligible for more than $1 billion in reimbursements), was equally important to government contractors in general.

ILB: Does this mean the executive branch may effectively obligate the legislative branch?

Posted by Marcia Oddi on Tuesday, June 19, 2012
Posted to Courts in general

Ind. Gov't. - "New Albany council to vote on nepotism rules"

Daniel Suddeath reports today in the New Albany News & Tribune in a story that begins:

A measure that coincides with new state anti-nepotism laws will be before the New Albany City Council when it convenes Thursday.

The Indiana General Assembly set a July 1 deadline for local governments to adopt policies forbidding local officials from hiring or promoting their relatives.

Local elected officials must also disclose any financial connections they have with contractors who are hired for public projects under the new guidelines.

In some ways, local governments don’t really have a choice. Among its options, the state can shut down local governments that do not comply with the new regulations.

More from the story:
There are allowances for some current employees to be grandfathered in across the state, as appears to be the case in New Albany. In February, Mayor Jeff Gahan hired Christopher Gardner — who is engaged to his daughter — to serve as flood control supervisor for the city.

The new law includes son-in-law relationships in its list of what are considered relatives, but Coffey said the time of the Gardner hire precludes it from being affected by the rule changes.

Relatives will still be allowed to work with one another after July 1, but an employee cannot directly supervise a relative. Local elected officials will also be required to disclose if they’re related to anyone who garners a contract with the public entity they serve.

Beginning in 2013, government workers won’t be allowed to hold an elected office that sets budgets, laws or policies that could benefit that employee, such as through their salary.

Since the law doesn’t go into effect until next year, public officials elected in the November runoff will be allowed to serve their terms before having to conform to the new rules.

Posted by Marcia Oddi on Tuesday, June 19, 2012
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending June 15, 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 (but will be updated this week).]

Here is the Clerk's transfer list for the week ending Friday, June 15, 2012. It is one page (and 2 cases) long.

No transfers were granted last week.

One earlier transfer was vacated and denied by a 4-1 vote. The case was Corey Nathan Fletcher v. State of Indiana, see the ILB entry here from June 14th.

One transfer, Huntington Copper, LLC v. Conner Sawmill, Inc., was dismissed upon he receipt of appellee's motion to dismiss petition to transfer.

Posted by Marcia Oddi on Tuesday, June 19, 2012
Posted to Indiana Transfer Lists

Monday, June 18, 2012

Courts - Bankruptcy petition preparers abuses raise concern

From the United State Courts, this report today headed "Increased Use of Bankruptcy Petition Preparers Raises Concerns."

ILB: The 2005 BAPCPA at sec. 110 tightly restricted what a "petition preparer" may do. See the specific changes made by the 2005 act to the previous petition preparer provisions via this document (prepared by Doney & Associates). Basically what they have been able to do since the BAPCPA took effect is "type the petition" (or input the information into a computer program). See this page from NOLO.

From the US Courts report today:

The U.S. Trustee Program, part of the Department of Justice, features a warning on its website (Justice.gov) for those who might seek help filing for bankruptcy protection.

"Non-attorney bankruptcy petition preparers may type bankruptcy documents with information supplied by the debtor. They may not provide legal services, such as helping you choose whether to file under Chapter 7 or Chapter 13 or identifying your property that is exempt from the reach of creditors," it states. "Bankruptcy petition preparers may advertise their services under 'document preparation services' and similar categories of services, but not under 'legal services.' If a bankruptcy petition preparer offers to provide legal services to you or fails to disclose that he or she is not an attorney and may not provide legal services, please report this to a U.S. Trustee Program field office."

Efforts to thwart fraud by BPPs are hampered in some districts by cultural differences. "Our challenge is exacerbated by the large Latino population who confuses notaries with 'notarios' because 'notarios' actually can carry out simple legal functions in Central America," Tighe said. "Some of our BPPs just advertise as 'notarios' and reel them in."

Indiana passed a law in 2007 criminalizing notario publico deception. This came after the Indiana Supreme Court's 2005 unauthorized practice decision against a woman providing "immigration services" as a notary public. Read about both in this July 1, 2007 ILB entry.

Posted by Marcia Oddi on Monday, June 18, 2012
Posted to Courts in general

Law - "New Book Claims Law School is a Bad Deal for Most"

Sam Favate has this report in the WSJ Law Blog. A quote:

Mr. Tamanaha suggests reforming the federal loan system and the American Bar Association’s accreditation standards.

Posted by Marcia Oddi on Monday, June 18, 2012
Posted to General Law Related

Law - "'What New Law?' People who would benefit have little idea what they may lose if Supreme Court strikes down health law."

This article by Alec MacGillis of The New Republic gives another view.

Posted by Marcia Oddi on Monday, June 18, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Don Morris and Randy Coakes v. Brad Crain, Richard Redpath, BioSafe Engineering, LLC, Steve Biesecker, Tyler Johnson, Brandon Ross and Cris Sollars , a 9-page opinion, Judge Bailey writes:

Appellants-Plaintiffs Donald Morris (“Morris”) and Randy Coakes (“Coakes”) appeal the grant of summary judgment in favor of Appellees-Defendants Brad Crain (“Crain”), Richard Redpath (“Redpath”), and BioSafe Engineering, LLC (“BioSafe”) upon breach of contract and equitable claims. They present a single, consolidated issue: whether the defendants demonstrated their entitlement to summary judgment. We reverse. * * *

The trial court ordered the defendants to identify how the plaintiffs had failed to meet the elements of the plaintiffs’ specified claims. This effectively challenged the plaintiffs to establish each of their claims in order to withstand summary judgment. Indeed, as there had been no trial of issues, the documents purporting to “state elements not met” necessarily assumed that all factual disputes had been resolved in the defendants’ favor. The focus upon the plaintiff’s purported failure to establish a claim is not consistent with our summary judgment standard. * * *

[T]he non-movant has no obligation to disgorge evidence in support of his claim until after the movant has met his burden.

Here, the trial court ordered the parties to implement a procedure inconsistent with summary judgment proceedings. Summary judgment was improvidently granted.

In Peru School Corp. a/k/a Peru Comm. Schools v. Gary Grant v. Peru School Corp. a/k/a Peru Comm. Schools and Stanley Hall , a 21-page opinion, Judge Vaidik writes:
Gary Grant was a school-bus driver with a yearly contract and an at-will custodian for Peru School Corporation a/k/a Peru Community Schools (hereinafter, “Peru Schools”) for nearly twenty-four years. After being terminated during the 2007-08 school year, Grant filed a complaint for wrongful termination. Following a jury trial in which the jury found in favor of Grant and awarded him nearly $175,000 in damages, Peru Schools now appeals the trial court’s denial of its motions for summary judgment and judgment on the evidence and the trial court’s admission of evidence regarding Grant’s salary as a school-bus driver and a custodian until he turns sixty-five years old.

We conclude that the trial court erred in denying Peru Schools’ motion for judgment on the evidence as it pertains to Grant’s employment as an at-will custodian because there is no substantial evidence of detrimental reliance, which is required to defeat the presumption of at-will employment. However, we reach a different result regarding Grant’s employment as a contracted school-bus driver. Because there is a genuine issue of material fact as to why Grant was fired, Grant denies one of the two grounds, and cause is required in order to terminate an employee with a contract for a definite term, we conclude that the trial court properly denied Peru Schools’ motion for summary judgment and left the matter for the jury to resolve. As for damages, because an employee discharged in breach of an employment contract for a definite term is entitled to recover his or her salary for the balance of the term, we conclude that Grant is only entitled to $2422.82 in damages, which represents the rest of his salary as a school-bus driver for the 2007-08 school year minus the unemployment compensation he received. Because of our resolution of the above issues, we do not need to reach the merits of the issues raised in Grant’s cross-appeal. We therefore affirm in part, reverse in part, and remand.

In Shepell Orr v. State of Indiana , an 11-page opinion, Chief Judge Robb writes:
Following a jury trial, Shepell Orr appeals his two convictions of murder, which are felonies. He raises a single issue, which we restate as whether the trial court committed reversible error in allowing the State to attempt to impeach a witness with extrinsic evidence of a prior inconsistent statement. Concluding the trial court did not reversibly err, we affirm. * * *

[W]e conclude Orr has failed to demonstrate the trial court committed an error which made a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process.

NFP civil opinions today (4):

Sandra Mourfield v. Melvin Mourfield (NFP)

Indiana State Police v. Earnest Howard, Jr. (NFP)

In Re the Term. of the Parent-Child Rel. of J.L.S., N.S., and M.S.; and A.S. and D.F., and J.S. v. The Indiana Dept. of Child Services (NFP)

Filmcraft Laboratories, Inc. v. 5200 Keystone Limited Realty, LLC (NFP)

NFP criminal opinions today (5):

Corey Weaver v. State of Indiana (NFP)

Courtney G. Tressler v. State of Indiana (NFP)

Kevin Perry v. State of Indiana (NFP)

William Capps, Jr. v. State of Indiana (NFP)

Tina R. Like Simmons v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 18, 2012
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS today decides Illinois confrontation clause case [Updated]

The case is Williams v. Illinois. Here is the SCOTUSblog case page.

Here is today's opinion. The Court upholds the State of Illinois 5-4.

Apparently this is the only day this week that the SCOTUS will be issuing opinions, so look for everything not issued today next week.

[Correction: They may be issuing opinions this Thursday, but most likely not health care rulings, according to SCOTUSblog.

Lyle Denniston of SCOTUSblog just wrote: "There are nine opinions to go, plus health care. We expect some opinions on Thursday, but will not know the number in advance. We also will not know which cases are coming down until they are actually released."]

[Updated at 1:49 PM] Here is coverage of the Illinois confrontation decision from Reuters. It begins:

The U.S. Supreme Court on Monday made it easier for prosecutors to use expert testimony about DNA laboratory reports at trial without allowing defendants to confront and question the forensic analysts involved in the tests.

By a 5-4 vote, the high court refused to add to a string of decisions since 2004 that have broadly interpreted the constitutional rights of criminal defendants to confront witnesses against them. The case involved a sexual assault in 2000 in Chicago for which the defendant was convicted and sentenced to life in prison.

The case had been closely watched because it could have had significant impact for prosecutors, law enforcement agencies and crime labs nationwide.

The Supreme Court's ruling was narrow, concluding that the expert testimony in the case from Illinois did not violate the U.S. Constitution. The dispute produced a splintered rationale that makes it difficult to predict how broadly the decision will affect future cases.

Posted by Marcia Oddi on Monday, June 18, 2012
Posted to Courts in general

Ind. Decisions - 7th Circuit affirms district court in Agnew v. NCAA

In Agnew, et al v. NCAA (SD Ind., Magnus-Stinson), a 38-page opinion, Circuit Judge Flaum writes:

Joseph Agnew and Patrick Courtney (“plaintiffs”) have at least two things in common: they were both highly successful high school football players that earned scholarships to play for National Collegiate Athletic Association (“NCAA”) Division I football programs, and they both suffered careerending football injuries during their college tenures. The athletic scholarships held by plaintiffs at the time of their injuries were good for one year only, and needed to be renewed to be valid for any subsequent seasons. When plaintiffs’ injuries prevented them from playing football, their scholarships were not renewed. Plaintiffs claim that two NCAA regulations — the cap on the number of scholarships given per team and the prohibition of multi-year scholarships — prevented them from obtaining scholarships that covered the entire cost of their college education. These regulations, according to plaintiffs, have an anticompetitive effect on the market for student-athletes, and therefore violate § 1 of the Sherman Act. 15 U.S.C. § 1. The NCAA filed a motion to dismiss and the district court granted that motion, finding that plaintiffs failed to allege a relevant market on which the NCAA’s Bylaws had an anticompetitive effect. Plaintiffs appealed the dismissal. While we depart from some of the district court’s reasoning, we ultimately conclude that plaintiffs’ complaint did not sufficiently identify a commercial market—an obvious necessity for Sherman Act violations—and thus we affirm the district court’s dismissal of plaintiffs’ suit [ILB: with prejudice].

Posted by Marcia Oddi on Monday, June 18, 2012
Posted to Ind. (7th Cir.) Decisions

Environment - "There is a lot of money being put into restoration and to do boots-on-the-ground type of work but very little to do monitoring and recording of data afterwards"

That is a quote from an interesting story reported by Lauri Harvey Keagle of the NWI Times. Some quotes:

In 2007, [Lee] Botts, the legendary Great Lakes environmentalist from Miller, produced a report for the Northwestern Indiana Regional Planning Commission titled "A Restoration Revolution," documenting area restoration efforts.

Botts concluded there were a host of positive strides being made in area restoration, but little to no follow up efforts taking place to document the results afterward. * * *

This year, NIRMI has seven student interns from IUN, Purdue University Calumet and Valparaiso University. In past seasons, they have employed students from Calumet College and Ivy Tech.

"They came in not knowing anything at all about plants," Avis said. "We wanted to build a program to help train people in plants and restoration. This is developing people who can observe and gather data, train them in identification, GPS and GIS and data collection."

Savannah Hauter, a graduate student at PUC from Schererville working as a NIRMI intern this summer, said she heard about the program from a friend working last summer.

"It's putting a name to a face to me," Hauter said. "You can talk about succession, plants and trees all you want, but seeing it in the field, it's all clicking for me now.

Cortwright said the skills learned in the field translate into valuable knowledge in the workplace.

"When I've asked restoration companies what is the number one skill needed by new hires, ... it is plant identification," Cortwright said.

NIRMI provides the stakeholders with a report on the inventory at the end of the season.

"Those have been useful for a variety of reasons," Avis said. "If they've got funding, they need to be able to document the work in some way. If they document the need, that can help with additional or future funding … We can capture information and come back to the exact same spot and see what's there a year, two years, a decade later."

"Also, problems are going to show up that you can put on people's radar," Cortwright said.

Avis said finding the funding to continue the work is always a concern.

"It's a little bit trying to explain there is a lot of money being put into restoration and to do boots-on-the-ground type of work but very little to do monitoring and recording of data," he said.

Posted by Marcia Oddi on Monday, June 18, 2012
Posted to Environment

Ind. Gov't. - "Local road funding is shaping up to be a key battleground in the next legislative session."

Long, important story Sunday in the Fort Wayne Journal Gazette, reported by Niki Kelly. It begins:

Local road funding is shaping up to be a key battleground in the next legislative session.

City, county and town officials are struggling with receipts from the state gas tax that are less than what they received in 2000, while the cost of maintaining roads and bridges has only gone up.

State legislators and administrators have shied away from the problem in recent years while pointing to tight state budgets and cuts to major programs.

But now that Indiana has built up a budget surplus – and is preparing to send tax dollars back to Hoosiers – the discussion is likely to change.

Earlier, Kelly and others have reported on the "permanent drop in revenue from gambling taxes." (See here and here.)

Posted by Marcia Oddi on Monday, June 18, 2012
Posted to Indiana Government

Ind. Gov't. - "Lake County ordinance does not require warrant to seize animals"

Susan Brown reports today in the NWI Times in a story that begins:

CROWN POINT | While the Lake County Sheriff's attorney John Bushemi did not respond last week to queries about the use of warrants in impounding animals, a seasoned criminal attorney said warrants are not necessary to rescue distressed animals in plain view.

"If an officer sees a crime being committed in plain view, they do not need to go to a magistrate for a search warrant to stop the crime," said the attorney, who asked not to be identified because of his association with county government.

At issue is whether a warrant was necessary to seize a family of pit bulls from a Calumet Township property, which led to the recent firing of longtime animal control employee Victoria Beasley.

"Number one, a search warrant is issued to conduct a search, which means you're going to go into a house," the local attorney said. "To stop a crime in their presence, an officer does not need a search warrant."

Beasley contends the dogs were seized properly under the current ordinance, which permits warrantless inspections of buildings or other structures.

The ordinance also states, "an animal control officer may petition for a judicial warrant authorizing entry, search, and/or seizure."

The adult dogs, who were chained outdoors to two trees, were seized after owners were found not in compliance with the ordinance, and there were further complaints from neighbors, Beasley said at the time of her firing.

Beasley said she was fired for not obeying a direct order to return the dogs to the owners after she was told a warrant had been needed.

Posted by Marcia Oddi on Monday, June 18, 2012
Posted to Indiana Government

Catch-up: What did you miss over the weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?

From Sunday, June 17, 2012:

From Saturday, June 16, 2012:

From late Friday, June 15, 2012

Posted by Marcia Oddi on Monday, June 18, 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 6/18/12):

Tuesday, June 19th

Next week's oral arguments before the Supreme Court (week of 6/25/12):

Thursday, June 28th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/18/12):

Tuesday, June 19th

Thursday, June 21st

Next week's oral arguments before the Court of Appeals (week of 6/25/12):

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 Monday, June 18, 2012
Posted to Upcoming Oral Arguments

Sunday, June 17, 2012

Ind. Gov't. - "Prison college a good investment in rehabilitation"

The South Bend Tribune today has this letter to the editor from Larry Embling, the on-site coordinator for the Indiana State Prison's Grace College. Some quotes:

On June 6, I participated in what could be the last college graduating class for Indiana State Prison and the state of Indiana. It was a memorable event with 84 inmates graduating with either an associate or bachelor's degree from Grace College and Ball State University.

While the ceremony was a joyous occasion for the graduates and their families, there was an overall sadness shadowing the event knowing that the Indiana General Assembly decided that the $12 million previously spent on subsidizing the college education of offenders could be better spent in other areas, so they voted to cease funding this program altogether, beginning this summer. * * *

Statistics have proven time and time again that educating incarcerated individuals serves two major purposes: one, it provides opportunities for individuals who otherwise would not obtain a college degree for numerous reasons to do so; and two, it was the one program offered by the DOC that markedly reduced the recidivism rate of individuals returning to prison. * * *

[T]o totally shut down one of the most successful rehabilitation programs in the Indiana prison system is simply wrong.

Posted by Marcia Oddi on Sunday, June 17, 2012
Posted to Indiana Government

Ind. Gov't. - "Chickens come home to roost on Indy's urban farms"

This long, Saturday Indianapolis Star story by Barb Berggoetz, shows that the days of the "chicken underground" in Indianapolis are long past. Several backyard chicken farmers are featured, along with many photos. From the story:

The popularity of urban chickens was evident, said longtime chicken owner Andrew Brake, when 600 people toured 12 coops in the Tour de Coops he organized in September.

Within Indianapolis, no restrictions exist on raising chickens. But Noblesville prohibits it. In Fishers, people can have chickens only on large acreage with proper zoning.

The ILB has had many entries on urban chickens, here is a list. See especially this Sept. 15, 2009 entry, where the ILB was able to definitively nail down, on the record with Indianapolis City Legal, the answer to whether backyard chickens are allowed in Indianapolis.

Posted by Marcia Oddi on Sunday, June 17, 2012
Posted to Indiana Government

Saturday, June 16, 2012

Courts - "Over the next two weeks, the SCOTUS is expected to issue fourteen more opinions in argued cases."

Amy Howe of SCOTUSblog has posted this very useful entry that begins:

Over the next two weeks, the Court is expected to issue fourteen more opinions in argued cases. (The number fourteen is based on the assumption that the Court will issue one large opinion covering all of the health care cases and issues; whether the Court will in fact do so remains to be seen.) Here are the “Plain English” questions at issue in each of the outstanding cases.

Posted by Marcia Oddi on Saturday, June 16, 2012
Posted to Courts in general

Ind. Decisions - More on "WellPoint, Inc. Agrees to Pay $90 Million to Settle Class Action Suit"

Updating this ILB entry from yesterday (which includes a link to the settlement agreement), Jeff Swiatek has a report today for the Indianapolis Star. A few quotes:

Judge Tanya Walton Pratt, who is overseeing the case Ormond v. Anthem Inc. in U.S. District Court in Indianapolis, must review the settlement before it can become final.

The payouts by check to former policyholders may not happen until next year, given the legal processes that the deal still must go through in court, said Eric Zagrans, Elyria, Ohio, an attorney for the plaintiffs.

Plaintiffs co-counsel Kathleen DeLaney, Indianapolis, said the $90 million settlement is one of the largest settlements of its kind reported in Indiana. Other class members mostly are from Ohio, Kentucky and Connecticut.

If split equally among 700,000 people, the settlement payout would come to about $128 a person. But payouts will vary depending on the cash awards to which policyholders were entitled. In addition, attorney fees and costs will eat up a large chunk. Typically, attorney fees and costs run 20 percent to 40 percent of the settlement amount in large class-action cases.

Posted by Marcia Oddi on Saturday, June 16, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - PCR attorney said she owes much credit to Henry Karlson, a law professor and legal scholar, who provided expert testimony in Neirynck's appeal on the standard of care for a reasonable attorney

Quotes from Mary Kate Malone's long, excellent story this week in the South Bend Tribune:

SOUTH BEND -- To the extent possible, Brian Neirynck intends to rebuild his life.

The 46-year-old was released from prison last summer after St. Joseph Superior Court Judge Jerome Frese vacated his 2003 conviction of molesting his toddler son, determining he may not have received a fair trial.

On Friday, the St. Joseph County Prosecutor's office decided to dismiss the case, rather than re-try him.

To Neirynck, his family, and his attorney, the dismissal order marks the end of a case that sent him to prison after an unfair trial.

"It's been a long, hard-fought battle," said Neirynck's attorney, Cynthia Carter.

"Until the case was dismissed, we really didn't know what would happen."

The prosecutor could have chosen to re-try Neirynck on the charge for which he was convicted, class A felony child molesting. Instead, the office determined it would not be able to meet its burden of proof.

Twelve years has passed since the alleged molesting incident, the prosecutor's office said in a statement, and newly discovered information, not presented at his original trial and supporting Neirynck's defense, would be admissible on a re-trial. * * *

Neirynck was convicted of the crime in January 2003 in St. Joseph Superior Court, and sentenced to 30 years in prison. He filed his initial appeal immediately, but the Court of Appeals upheld the conviction in August 2004.

Alleging ineffective counsel at trial, Neirynck then filed a petition for post-conviction relief, but that appeal sat dormant for several years.

It was not until December 2009, after Carter had become Neirynck's new attorney and began filing motions, that his petition for relief began to move forward.

Carter began digging deep into the case and trial records. She eventually obtained notes from the alleged victim's counselor related to her 31 therapy sessions with the boy. The notes, never gathered by Neirynck's court-appointed public defender, Brian May, or his first appellate attorney, showed that the boy may have been coached or conditioned in his testimony, Carter argued.

"Sometimes you just feel like you don't want to give up," Carter recalled this week. ".... and that's what I thought. There were times when I thought about giving up, but we never did."

It eventually paid off.

In March 2011, Judge Frese heard arguments from Carter and the prosecutor's office regarding Neirynck's appeal. Carter argued that Neirynck had ineffective counsel at his trial, citing the never-before-obtained notes, and other shortcomings of May. The state argued otherwise, saying May's performance was part of his trial strategy.

In a rare legal decision, Judge Frese granted Neirynck's appeal, and ordered that he be released from prison. In his 13-page order, the judge outlined the chronology of the case, noting the child custody dispute between Neirynck and the boy's mother that preceded the criminal case, as well as the deficient performance of Neirynck's previous attorneys. * * *

"This conditioning of the state's only direct witness -- a child just turned six, who testified (more than a year) after the charged acts -- constitutes a powerful basis for a defense theory," Frese wrote. "None of this was presented to the jury."

The Attorney General could have appealed Frese's decision, but decided in October not to pursue one.

The St. Joseph County Prosecutor's recent decision to dismiss the case effectively puts it to rest .

[Attorney Cynthia] Carter makes a living working on appeals and post-conviction relief cases.

She said the Neirynck case stands out, because it is one of the very few that was resolved by a trial court, rather than an appeals court.

"I would applaud Judge Frese's courage and wisdom and the decision he made," Carter said. "The whole system isn't perfect, but you have to try, and I would just applaud Judge Frese. I have a great deal of respect for him." * * *

She said she owes much credit to Henry Karlson, a law professor and legal scholar, who provided expert testimony in Neirynck's appeal on the standard of care for a reasonable attorney. The judge cited much of Karlson's statements in arriving at his decision to vacate Neirynck's conviction.

Karlson became gravely ill before the hearing where he was set to testify, and instead gave a deposition beforehand. He had died by the time the hearing took place.

"His dying wish was that an innocent man be set free," Carter said. "And that's what we believed all along."

Posted by Marcia Oddi on Saturday, June 16, 2012
Posted to Indiana Courts

Environment - "Hog farm expansion fought in Southern Indiana"

Here is today's story from Grace Schneider of the Louisville Courier-Journal; it begins:

Indiana environmental officials could decide in the next few months whether to allow an Elizabeth-area farm to double the size of its 4,000-head swine operation.

But that action isn’t likely to end the controversy over the confined hog-finishing operation. Neighbors of the farm near Ind. 11 and Pumping Station Road have appealed the Indiana Department of Environmental Management’s approval for the expansion, which has delayed the issuance of a final permit.

Next, opponents say they will file a lawsuit against farm owners Larry and Sandra Day and their son Tony, who manages the swine business, D Livestock Inc.

Several residents who formed a group last year have asserted that the Days’ business has contaminated groundwater and poses other health risks. They also complain that the operation has undercut property values. * * *

The operation, the only state-regulated confined-animal feeding operation, or CAFO, in Harrison County, involves spreading manure captured in a holding tank across the Days’ fields. The owners have laid out similar plans for the new facility.

Posted by Marcia Oddi on Saturday, June 16, 2012
Posted to Environment

Ind. Courts - More on "St. Joe County tax funds to pay for new courtrooms"

Updating this ILB entry from June 4th, Eric Blasko of the South Bend Tribune reported June 13th:

SOUTH BEND -- The County Council on Tuesday agreed to spend $8.2 million on new felony courtrooms, bond payments, police radios and other items, all part of the county's annual appropriation of county economic development income tax, or CEDIT, dollars. * * *

The appropriation, which passed by a vote of 8-0, includes about $1.5 million to renovate parts of the first and second floor of the County-City Building, formerly the county jail, into four new, ADA-compliant felony courtrooms. (The county plans to appropriate another $1.5 million in CEDIT money toward the project next year, for a total of $3 million).

The new courtrooms, to be used by the county's four felony judges -- Jane Woodward Miller, Jerome Frese, Roland Chamblee Jr., and John Marnocha -- will free up space in the 1896 Courthouse, making it possible to schedule more civil jury trials there, Chief Superior Court Judge Michael Scopelitis has said.

It will also allow the court to take better advantage of the services of its senior judges, Scopelitis said, and to petition the state for additional magistrates to handle the abundance of small claims and traffic and misdemeanor cases in the county.

Posted by Marcia Oddi on Saturday, June 16, 2012
Posted to Indiana Courts

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

The ILB first wrote about the Indiana Commission on Public Records project to create a statewide policy for retaining electronic records in two entries on April 25th. This was followed by an entry on May 4th quoting a Fort Wayne Journal Gazette editorial that, inter alia, quoted the ILB:

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?”

Yesterday, June 15th, Tim Grimes, a reporter for TheStatehouseFile.com, a news website powered by Franklin College journalism students, had this story in the Indianapolis Star. Some quotes:
[The Indiana Commission on Public Records] will soon set new rules for how long state and local governments must keep employee emails and other electronic records -- and which of those missives will be considered public records. * * *

The General Assembly passed legislation earlier this year that called for new rules for electronic records and required the commission to set policies that will be followed by all local governments.

The records rules are important to journalists and the public, who can use documents to track what happens to public money and how government decisions are made.

The Indianapolis Star recently used emails sent among state regulators and utility officials to uncover inappropriate relationships and discussions that led Gov. Mitch Daniels to fire the chairman of the Indiana Utility Regulatory Commission.

Lawmakers pushed for uniformity in local government rules after problems in Hancock County. According to the Greenfield Daily Reporter, former Mayor Brad DeReamer's computer was wiped of all its data, emails and documents as new Mayor Dick Pasco came into office. The emails were eventually recovered. * * *

But retaining electronic communications comes with its own unique problems.

Physical records like documents, contracts or state reports are typically maintained by an office or an employee -- such as county clerk -- who is familiar with retention schedules, which set the rules for how long public records must be maintained.

But the preservation of electronic communications is somewhat different because they are essentially maintained by individual government employees, as opposed to a clerk. Government watchdogs say they are concerned about government employees essentially being their own record keepers. * * *

[T]he commission plans to work in July -- in a meeting not yet set -- to create a statewide policy regarding email and other electronic communications. This policy will deal with what qualifies as a public record that must be kept -- and for how long.

ILB observations: It appears that "retention schedules" and "policies" adopted by the Commission on Public Records are not considered to be administrative rules, which would be subject to public rulemaking procedures before adoption.

According to the Oversight Commission on Public Records (OCPR) webpage, its next meeting is set for June 27, and the July meeting will be on July 18th. Agendas are not yet available for either meeting, but looking at past agendas, they tend to be rather generic (e.g. April 8, 2012).*

Here is the webpage containing the policies of the Commission, as approved by the Oversight Committee on Public Records. It currently includes the 7-page Commission on Public Records E-mail Retention Policy (5-01), which may be the model the Commission intends to apply to local government entities.

It also includes examples of the policies adopted by four state agencies, which are interesting to read. Here are some quotes from the IDEM policy:

_________
* The ILB was sorry to see this statement on the OCPR page:
Agendas will be posted as soon as they are available; minutes will be posted after the following month's meeting, at which they are approved. (The January minutes are approved at the February meeting, and posted afterwards, etc.)
Many agencies make their draft minutes available as soon as they have been prepared, which may be much preferable insofar as public access to information is concerned.

Posted by Marcia Oddi on Saturday, June 16, 2012
Posted to Indiana Government

Friday, June 15, 2012

Courts - "The SCOTUS is considering a series of questions to determine whether the law, or parts of it, will survive."

Accompanying this article in the NY Times today headed "With Justices Set to Rule on Health Law, 2 Parties Strategize" is a very cool "decision tree" mapping out the results stemming from the answers to "a series of questions [that will] determine whether the law, or parts of it, will survive."

[More] See also this AP article headed "Possible outcomes in pivotal health care law case ."

Posted by Marcia Oddi on Friday, June 15, 2012
Posted to Courts in general

Ind. Gov.t. - More on: PAC issues opinion in challenge to public notice of Purdue Board of Trustees' meeting "at O'Hare Airport"

Updating this ILB entry from yesterday, Eric Weddle of the Lafayette Journal Courier reports today:

Indiana’s top official on open door issues released on opinion Thursday saying Purdue University’s Board of Trustees did not violate state law by providing only a general location for an executive session last month in its search for a new university chancellor. * * *

The Journal & Courier had requested details of where in the airport the trustees would meet. The trustees' office declined to provided the information saying the airport name satisfied the law. * * *

State law allows public bodies to hold private meetings when the topic is related to job candidates and other personnel matters. The open door law also states that public bodies must disclose the date, time and place of any meeting held by the governing body, whether open or closed, to the public at least 48 hours in advance, excluding weekends and legal holidays.

In an opinion issued Thursday, public access counselor Joe Hoage cited opinions by previous public access counselors and a 1984 Indiana Supreme Court case, Pepinsky v. The Monroe County Council.

In the Pepinsky case, the county council held a public meeting in the Monroe County Courthouse, but the notice did not list the specific room where it was to be held. Hoage wrote that the meeting was publicized in the local newspaper multiple times and the council typically met on the second floor of the building. No one was found to have been prevented from attending that meeting due to the lack of detail in the notice. The court ruled proper notice was given under the law.

In a 2004 complaint to the counselor's office, the Bremen School Board of Trustees was accused of providing faulty notice by only providing the general location of their public meeting at “Oakwood Inn in Syracuse, Indiana.” The counselor found that even though the address of the inn was not provided, there was no evidence of confusion over where the city or inn was, or that anyone reading the notice would not know where the meeting was taking place.

Hoage noted these rulings were applicable to the Journal & Courier’s complaint.

“There is no allegation that there are multiple O’Hare International Airport’s in Chicago or there was any confusion regarding the exact location in Chicago where the O’Hare Airport was located,” Hoage wrote. “As opposed to public meetings, executive sessions are closed to the public and only those persons necessary to carry out the governing body’s purpose are admitted.” * * *

Attorney Thomas Parent, representing the board of trustees, argued in a response to the complaint that providing the exact location of an executive session would allow the press to gather at a meeting site and identify candidates of a confidential search.

Attorney Thomas Parent, representing the board of trustees, argued in a response to the complaint that providing the exact location of an executive session would allow the press to gather at a meeting site and identify candidates of a confidential search. * * *

Hoage‘s opinion was not intended as a broad answer to all questions regarding the place where public bodies meet.

“ ... (T)here may be instances where detailed information regarding the place of the meeting may be vital to include in a proper meeting notice,” he wrote. “However as to the facts presented, I do not believe withholding the room number of the executive session violated the ODL.”

The public access counselor’s opinion is not binding. The Journal & Courier could still file a civil lawsuit and seek a judge’s opinion, which would be binding. Having first requested an advisory opinion, the newspaper would be entitled to recover reasonable attorney fees and other costs of litigation were it to prevail in court.

The Journal-Courier has posted the PAC opinion, 12-FC-131. Here is Pepinsky v. Monroe County (April 4, 1984).

Posted by Marcia Oddi on Friday, June 15, 2012
Posted to Indiana Government

Ind. Decisions - "WellPoint, Inc. Agrees to Pay $90 Million to Settle Class Action Suit"

From a press release just received:

June 15, 2012 – WellPoint has agreed to pay $90 million to settle a class action lawsuit brought on behalf of more than 700,000 former members of Anthem Insurance Companies, Inc. (“Anthem”). The parties had been scheduled to begin a jury trial on June 18, 2012 in federal court in Indianapolis on legal claims arising from Anthem’s 2001 conversion from a mutual company, owned by its insured policyholders, to a stock company. WellPoint, Inc. is the corporate parent of Anthem. The settlement, if approved by U.S. District Judge Tanya Walton Pratt, will resolve the lawsuit filed in 2005 by those Anthem members who received cash compensation as part of the conversion process. The class action complaint alleged that Anthem did not pay the former mutual company members the fair value of their membership interests. The settlement will not become final and the settlement proceeds cannot be paid to the class members unless and until Judge Pratt determines that the settlement is fair, adequate and reasonable. In filings made with the Court today, the plaintiffs propose to send settlement notices to class members later this summer, with checks to be mailed to class members starting as soon as the settlement becomes final and fully in effect.

The plaintiffs in the lawsuit are represented by Eric Zagrans of Cleveland, DeLaney & DeLaney LLC of Indianapolis, Dennis Barron of Cincinnati, Michael Becker of Cleveland, Berger & Montague, P.C. of Philadelphia, and Keller Rohrback L.L.P. of Seattle.

Attorney Eric Zagrans stated, “Our clients were the owners of Anthem before it demutualized in 2001, and they were entitled to receive cash compensation equal to the fair value of their ownership interests when the company converted from a mutual company to a stock corporation. The Court ruled that their claims of breach of fiduciary duty and negligence against Anthem were worthy of a jury’s consideration.”

Co-Class Counsel Kathleen DeLaney added, “The $90 million settlement is one of the largest ever reported in the State of Indiana. The Court certified a class of more than 700,000 residents of Indiana, Ohio, Kentucky and Connecticut. Plaintiffs’ legal team fought hard to help the class members obtain this $90 million cash settlement.”

Details about the terms of the settlement can be found at www.anthemcashclass.com.

Here is the Settlement Agreement. Page 12 is attorneys' fees. My quick calculation, dividing $90 million by a class of 700,000, shows each class member may be eligible to receive about $130, less attorneys' fees and other costs.

Posted by Marcia Oddi on Friday, June 15, 2012
Posted to Ind Fed D.Ct. Decisions

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

Updating this earlier ILB entry from May 29, 2012, Braden Lammers reports today in the Jeffersonville News & Tribune today:

JEFFERSONVILLE — Clark County’s Board of Aviation Commissioners attorney was apparently fired and a lawsuit was filed against him following a disputed land acquisition that will cost the county more than $840,000.

The Clark County Commissioners and Board of Aviation Commissioners were named as the plaintiffs in a legal malpractice suit Wednesday against former Air Board Attorney Jack Vissing. According to the complaint filed in Clark County Circuit Court No. 4, Vissing failed to object to Margaret Dreyer’s filing of an exception to the appraisal value of her property.

The Air Board purchased a series of tracts of land from Dreyer at the end of a proposed runway expansion at Clark Regional Airport. But the value of 72 acres along Bean Road was disputed. A large disparity in the value of the land was argued in court and a jury ruled that the property was worth $865,000. That ruling was upheld by the Indiana Court of Appeals in December.

The Clark County Commissioners attempted to enter into the legal battle by filing another challenge, that the exception to the value initially offered to Dreyer was not flied within an appropriate time frame. Commissioners Attorney Greg Fifer filed the suit on behalf of the county arguing that the court should not have heard the case because neither Dreyer, nor her attorney, filed a written exception to the initial appraisal amount within 20 days.

Clark County Circuit Court No. 2 Judge Jerry Jacobi’s ruling in that case also went against the county, which essentially said the county was too late to seek relief, and it has until June 28 to file an appeal.

Fifer said Vissing is being sued for his failure to cite that Dreyer’s written exception was not filed within the 20-day window. He added that he notified Vissing on Monday that he was no longer the air board’s attorney.

“Since I knew we were going to be filing that suit ... I used my discretion and advised him he was terminated,” Fifer said. * * *

The air board already paid Dreyer $203,605 for the land, but with the jury verdict they were responsible for a $661,395 remainder. Since the verdict was reached, attorneys fees and interest have continued to accrue, leaving the county owing $841,000, as of the end of May.

In the filing, the relief Fifer is seeking is that Vissing pay that remaining amount.

“Because Vissing missed a jurisdictional statute he should be responsible for any money over that amount,” Fifer said. “Everybody was in agreement that the taxpayers shouldn’t have to pay,” he said referring to the commissioners and the Clark County Council. * * *

Time has become an issue for the county because if they do not pay for Dreyer’s property within a year from the date the court of appeals’ decision was reached — Dec. 14, 2011 — the interest in the property is forfeited back to the owner, along with the $203,605 already paid.

Posted by Marcia Oddi on Friday, June 15, 2012
Posted to Indiana Government

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

For publication opinions today (2):

In David Ashabranner v. Sandy Wilkins, f/k/a Ashabranner, an 11-page opinion, Chief Judge Robb writes:

David Ashabranner (“Father”) appeals a trial court order denying emancipation of his child, Cassandra Ashabranner, and continuing his obligation to pay child support. Father raises three issues which we restate as: 1) whether the trial court erred in declaring Cassandra not emancipated, 2) whether the trial court erred in not ordering Sandy Ashabranner Wilkins (“Mother”) to pay child support, and 3) whether the trial court erred in calculating the amount of child support without considering Cassandra’s income and ability to partially provide for herself. We conclude that, based on the evidence presented, the trial court did not err in declaring Cassandra to be unemancipated. We further conclude that the trial court did err in failing to order Mother to pay child support but did not err in refusing to consider Cassandra’s income or ability to partially provide for herself. Accordingly, we affirm in part and remand in part.

[ILB: Footnote 6 on p. 6 states re IC 31-16-6-1, "This section was recently amended to allow termination of child support, except for support for educational needs, once a child becomes nineteen years of age. This amendment becomes effective July 1, 2012, and does not affect the disposition of this appeal." For more on the law, see this ILB entry from June 9th.]

In Term. of Parent-Child Rel. of H.K., Ta.K., and Ty.K., (Minor Children), and R.K., Their Mother, and D.K., Their Father; R.K. (Mother) v. The Indiana Dept. of Child Services, an 8-page opinion, Judge Bailey writes:
R.K. (“Mother”) appeals the involuntary termination of her parental rights to her children, H.K., Ta.K., and Ty.K. The sole issue on appeal is whether the termination order should be set aside because the Indiana Department of Child Services failed to provide Mother with adequate notice of the termination hearing. We remand with instructions. * * *

Because Mother claimed that KCDCS failed to provide her with notice of the August 2011 termination hearing, the burden has shifted to KCDCS to prove compliance with Indiana Code section 31-35-2-6.5. The trial court’s CCS makes clear that an order was “entered” on June 3, 2011, following the court’s consolidated initial hearing in the termination cases. The specific language of the trial court’s order, however, was not included in the CCS entry, and the CCS does not indicate whether the trial court’s order was ever provided to Mother and/or whether the order included the date of the final evidentiary hearing scheduled in August 2011. * * *

Although Indiana Code section 31-35-2-6.5 does not require compliance with Indiana Trial Rule 4, which governs service of process and incorporates a jurisdictional component, KCDCS was nevertheless required by Indiana Code section 31-35-2-6.5 to send notice of the termination hearing to Mother’s last known address at least ten days before the hearing. * * *

Unfortunately, it is not clear from the record whether KCDCS sent proper notice of the August 2011 termination hearing to Mother’s last known address, and this court cannot simply rely upon attorney Lee’s unsubstantiated comment to the trial court that “Ms. Ford mailed notice of today’s hearing to [Mother’s] last known address . . . which came back” for purposes of determining on appeal whether LCDCS fulfilled its statutory notice obligations set forth in Indiana Code section 31-35-2-6.5. * * *

We therefore conclude that the most appropriate remedy is to remand this cause to the trial court with instructions that the court conduct a hearing to determine (1) whether KCDCS complied with the statutory notice mandates of Indiana Code section 31-35-2.6.5 by properly notifying Mother of the August 29, 2011 termination hearing and (2) if the notice requirements of Indiana Code 31-35-2-6.5 were not met, whether this procedural irregularity violated Mother’s due process rights under the facts of this case.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Otoniel Muro-Esparza v. State of Indiana (NFP)

Dale Douglas Perkins, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 15, 2012
Posted to Ind. App.Ct. Decisions

Courts - "Growing Division Over Iqbal/Twombly’s Applicability to the Pleading of Affirmative Defenses"

See this entry today from Circuit Splits. Two Indiana decisions, one from the ND and one from the SD, are listed under the heading "A. Cases declining to adopt the Iqbal–Twombly heightened pleading standard for the pleading of affirmative defenses." There are Illinois district court opinions under both headings.

Posted by Marcia Oddi on Friday, June 15, 2012
Posted to Courts in general

Stage Collapse - "Indiana State Fair rolls out plan for dealing with emergencies"

Chris Sikich reports today in a long story in the Indianapolis Star:

ndiana State Fair Commission officials say they have developed an emergency management plan that's among the best in the nation. * * *

Chief Operating Officer David Shaw said the policy addresses the chief concern raised by Washington, D.C.-based consulting firm Witt Associates about the Aug. 13 stage collapse at the State Fair: the lack of a clear chain of command.

Shaw said the 425-page plan covers every conceivable disaster that could strike at the fairgrounds, including bad weather, shootings and food poisoning. * * *

Shaw provided a 31-page PowerPoint presentation that outlined the commission's strategy but said it's a common practice to keep the fine points of such reports private.

From the AP:
The 425-page plan adopted recommendations made by consultant Witt Associates and formalized procedures that already were in place but not used the night of the Aug. 13 collapse. Seven people died after strong winds toppled the stage rigging into the crowd waiting for country duo Sugarland to perform.

The new plan gives the fair's chief operations officer, David Shaw, the responsibility for postponing or canceling events amid threatening conditions or, in his absence, Safety and Security Director Jessie Olvera.

Witt, which investigated the collapse for the commission, found that "an ambiguity of authority" resulted in confusion and uncertainty over who was in charge of public safety as officials discussed whether to postpone the concert.

"After August 13, we needed to accept responsibility for public safety," said the commission's chairman, Andre Lacy.

The commission has contracted with weather information provider Telvent to keep fair officials and others apprised of the risk of approaching severe weather, including storms and high winds like those that caused the collapse, which also injured dozens of people.

Posted by Marcia Oddi on Friday, June 15, 2012
Posted to Stage Collapse

Thursday, June 14, 2012

Ind. Courts - "Jury clears Lake County clerk in false arrest suit"

An Illinois woman unsuccessfully sued the Lake County Indiana Clerk's office, as reported in this NWI Times story by Bill Dolan that begins:

GARY | A Lake Superior Court jury has cleared the Lake County clerk's office in a lawsuit regarding a Chicago woman's disputed arrest.

Gary attorney Tony Walker said he won a verdict Tuesday in favor of county officials whom he defended in a false arrest suit filed by Victoria A. Ocholla, of Chicago. Walker said Ocholla was seeking $125,000 in damages.

Court documents indicate Hobart police gave Ocholla a speeding ticket in 2007. She sent her payment of the ticket through the mail during the 2008 Easter holiday — less than a week before her appearance was expected in court — and believed the matter was resolved, according to court records.

Ocholla was stopped a year later by Chicago police for a traffic violation, handcuffed and confined at a police precinct station after a records check indicated Indiana had suspended her driver's license, claiming the 2007 ticket wasn't resolved.

Ocholla sued, claiming the Lake County clerk's office failed to process her payment of the 2007 ticket in a timely fashion and was negligent in producing the necessary documents to reinstate Ocholla's driver's license.

Posted by Marcia Oddi on Thursday, June 14, 2012
Posted to Indiana Courts

About the ILB - Some responses from readers, Part 4 of 4

The ILB has received nearly 100 notes from readers, nearly all attorneys, located around the state, in response to this entry from June 5, 2012. I am posting quotes from readers' responses. Below is the final batch - Part 4 of 4. (Part 1 is here, Part 2 is here, Part 3 is here.) Many thanks to all of you who have taken the time to respond!

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I live and practice law in southern Indiana. I read your articles on a regular basis. You provide a necessary service for those of us from small communities who cannot obtain this information from any other source who want to know about the legal profession all over Indiana. As far as I am concerned, you have no other agenda other than what you said today and as an older male lawyer who has practiced over 35 years, it is time we recognized that educated professional women are needed in power positions, not only in law but in every other important position as well.

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I’m very grateful for your work in keeping the blog – and especially for your collaboration with Ms. Weineke in covering the CoA vacancy.

To the degree any of your personal “agenda” may occasionally be apparent (beyond the uncontroversial “agenda” of a transparent judiciary), it’s your blog and your prerogative to advance it. And much like NPR news, your reporting is conscientious enough that anyone of intelligence can readily identify what’s reporting and what’s opining – so that even if I might disagree with an opinion, I’m more informed for having heard the reporting that surrounded it.

=================

Let me begin by thanking you for the time and effort you devote to the ILB. I have been following the ILB for nearly a year and have yet to discover a more informative or comprehensive source for the latest in news and law. I learn a TON each day from the ILB as a law student approaching my third year and a law clerk at a general practice firm. Sometimes I even see appellate opinions or stories on cases in which I have had a hand – even after a year I think that is pretty cool.

As the COA process proceeded I could sense your growing frustration with the unavailability of information. I shared your frustration, as I am sure many others did. The lack of a sufficient explanation or response only increased the disdain for the process and those with control over it. Hopefully the COA process generated enough discontent that we will see the information we expect for the summer INSC applications.

Aside from my email accounts and Westlaw, the ILB is the only other site I visit repeatedly throughout each day.

=================

I, like most I think, read your post and summaries on IN cases before I read, or instead of reading, anything I get from the IN Lawyer or other sources. As I told you when I first sent you my check, I like that it is straightforward and dry reporting about things of interest in the law, both locally and nationally. I like your blog, read it daily, and would miss it if you were not doing it.

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Give the tone of your posting; I feel I’ve erred by not writing you sooner to tell you how important the ILB is to me. I’m a full-time appellate public defender and I read the ILB every single day. I can’t imagine what it takes for you to keep this blog going and I wish I had the money to be a supporter. You provide an invaluable service to the Indiana legal community and I’m sorry if people out there have made you doubt that. I can’t begin to express my gratitude for the work you do.

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YES, YES, YES, a thousand times YES, I value your coverage of the appellate judicial selection process. It might be the most valuable service you provide (and you provide many of them). You cover every interview and every application and you do so in a way that focuses on facts and reporting. You do not traffic in innuendo or gossip or denigrate/promote certain candidates, but simply give your readers all of the information they need to draw their own conclusions about the candidates and the process.

Quite frankly, the Court's public information office's performance during this CoA selection process was disgraceful.

As far as your "agenda," wear it proudly. I don't always agree with it (I suspect you and I do not see eye to eye on how important it is for a woman to be appointed to the Supreme Court), but I respect your openness about it. This is your blog -- there is no need for Olympian detachment.

=================

Your frustration with the Court of Appeals selection process underscores the importance of continuing a frustrating job. Yes, that’s circular; but it’s also true: We need an advocate who is willing to push when push is needed.

The criticism is not worth your attention. Those who would oppose you and the ILB on those grounds are anti-democratic and unworthy of respect.

=================

Your blog is one I view every day. I respect the fact you have an agenda because it is your blog! Keep it up as it is valuable and I enjoy reading it as it provides valuable information.

=================

I really enjoy reading the ILB. I check it multiple times each day. I find the information posted on the blog to be very reliable and informative. I applaud your efforts at transparency. I also applaud your efforts in getting actual documents such as briefs, transcripts and motions and providing access on line. I think it is reprehensible that these items are not posted on an Indiana web page for download. Thank you for all your hard work. I hope you continue to operate the blog.

=================

I am a Indiana solo practitioner. Your blog is the first thing I read EVERY day. I value your coverage of the court selection process and I am disheartened at the apparent erosion of access. As to the general usefulness of your blog I would tell you that if I could read only one resource to stay apprised of pertinent Indiana legal news and developments in substantive Indiana law, it would be Marcia Oddi's ILB, hands down with no site even a close second. Thank you for your work and I hope it continues.

=================

I appreciate your blog -- all topics. I read it every day.

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I read the Indiana law blog practically every day. As a post-conviction relief deputy handling many, many cases, I have precious little time to spare, so I value getting the latest information and hyperlinks to the orders and cases that are most important to me. I agree completely that the public should have total access to the applications for judicial office and find the lack of access in this day and age to be baffling.

=================

I’m an Indianapolis native and Indiana bar member practicing in Washington, DC for the Department of Justice. I am an avid reader of your blog (during lunch, of course). I greatly appreciate the service you provide to members of the Indiana legal community, including those of us like me who do not reside in Indiana. I saw your post this morning and wanted to write in with my vote of support. Thank you very much.

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I am a solo practicioner in northeast Indiana, and I am a daily reader of the law blog. I appreciate very much the service you provide to lawyers and other interested people giving legal updates. I particularly appreciate the synopses of Supreme Court and COA cases that come out. In fact, the law blog is my primary way of keeping up with new cases that come out. There are a lot of people out there who appreciate what you do.

I realize that you cannot make everyone happy, and suggest that you not try to do so. Many times you post things that you find interesting. Sometimes I agree and click on the links, sometimes not. I don't always agree with your "agenda," but that doesn't at all outweigh how useful your blog is. Thank you for the time you invest. Please try not to let the detractors get to you.

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I love your blog. Having worked for various judges on the Indiana Court of Appeals for 12+ years until moving with family to Fort Wayne in 2009, I particularly enjoy keeping up on Indiana law by reading your entries. Please keep up the great work.

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Please be assured that your blog is invaluable to many people inside and outside the legal profession. I have found the ILB an incomparable source for tips and trends as I cover the legal beat, and rely on it to a great deal to keep up on things. Without it, my job would be much more difficult.
I am disturbed to hear that the openness of records remains an issue; Chief Justice Dickson assured us when he was sworn in that it was just an aberration and would not continue. I fully empathize with your dilemma about copying costs as the media industry has become increasingly cost-conscious - that's why I often obtain documents from attorneys who are involved in the cases, who are generally generous about it.

=================

I, for one, think that you are doing a darn good job covering the happenings in the judicial selection arena in particular and in the issues in Indiana law in general. I would definitely miss your blog should you discontinue it. As for the assertion that you have an agenda, each of us sees the world through the perspective of our experience. That is why we want judges to have varying experiences. While I might think that you make too much of the gender composition of our courts, I do not have the benefit of seeing how that might impact me.

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Marcia—I’ve been a daily follower of your blog since I graduated law school five years ago. Though I now practice outside Indiana, I still visit the blog daily to keep up on Indiana events and especially to monitor court selection. Please keep up the good work!

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Please don’t become overly discouraged. This is natural given what you do and the sad fact that other lawyers take you and your work for granted. Your blog is one of the first I consult each day to find out what’s happening in our legal community. I can’t imagine practicing law in Indiana without it. ILB is indispensable to any lawyer who cares about our legal system and openness and transparency in government.

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I enjoy your blog entries immensely, and would miss them greatly if you stopped blogging. It is unfortunate that the information on the recent judgeship appointments has been difficult to get, but don’t let that deter you from continuing your blog!!

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Just a brief note to tell you that I appreciate what you do. Admittedly, I am not an everyday reader, but I check in regularly - particularly when I want to know what's going on around our State courts.

I also salute your support of finding a female justice for our Supreme Court. It's long overdue. I'm short on experience, but I think every single eligible female attorney ought to step up and apply.

Posted by Marcia Oddi on Thursday, June 14, 2012
Posted to About the Indiana Law Blog

Courts - "Richmond Virginia Circuit Court appoints openly gay judge"

The story this afternoon in the Washington Post begins:

RICHMOND — Circuit Court judges have appointed an openly gay prosecutor to the bench just a month after the General Assembly rejected his nomination.

Tracy Thorne-Begland’s appointment to the city District Court judgeship is temporary, lasting only until the next General Assembly session. The move by the Circuit Court is likely to revive the emotional debate over gay judges that consumed the legislature on the last day of session. * * *

Earlier this week, leaders of Richmond’s five largest law firms urged the city’s Circuit Court judges to appoint him to the bench. But that would be an interim appointment, lasting only until the General Assembly reconvenes.

The House blocked Thorne-Begland’s appointment in May by a wide margin. He needed 51 votes in the 100-member House to win appointment and received 33. The Senate never voted on the matter.

ILB: Actually, when I saw the headline I wondered why the fuss? Then I read the rest of the story.

Posted by Marcia Oddi on Thursday, June 14, 2012
Posted to Courts in general

Ind. Gov't. - AG's Public Access Seminar series explains open records, meetings

The Attorney General is holding public access seminars around the State. (For attorneys, there is 2.0 CLE credit available.) The first ones are in Indianapolis next Tuesday, June 19th:

The panelists include:In addition to explaining the public access laws and requirements, the panelists will provide practical examples of how public records requests should be initiated by citizens and addressed by officials and attorneys. Audience members will have the opportunity ask questions.

Check here for details on how to register.

Posted by Marcia Oddi on Thursday, June 14, 2012
Posted to Indiana Government

Vacancy #2 on Supreme Court 2012 - Reminder of deadlines

The deadline to apply to fill the upcoming vacancy in Justice Sullivan's seat is Friday, June 29th.

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 is the Court's news release with details.

The ILB has heard that this third Supreme Court vacancy during the Daniels' administration is wide-open, there are no favorites.

Posted by Marcia Oddi on Thursday, June 14, 2012
Posted to Vacancy #2 on Supreme Court 2012

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

For publication opinions today (0):

NFP civil opinions today (3):

In Re the Term. of the Parent-Child Rel. of: C.V., O.V., and J.V. and G.J. v. The Indiana Dept. of Child Services (NFP)

In the Matter of the Adoption of M.L.B. v. K.J.R. and P.L.R. (NFP)

In Re: The Visitation of M.L.B.; K.J.R. v. M.A.B. (NFP) - ILB: This is a 2-1 grandparent visitation rights opinion that might have been classified as "For Publication" (IMHO).

NFP criminal opinions today (5):

Adam Mittler v. State of Indiana (NFP)

Ronald G. Becker v. State of Indiana (NFP)

Darrell Warren v. State of Indiana (NFP)

Eddie R. Smith, Jr. v. State of Indiana (NFP)

Salvador S. Castro v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 14, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov.t. - PAC issues opinion in challenge to public notice of Purdue Board of Trustees' meeting "at O'Hare Airport"

The Indiana Public Access Counselor says today in this opinion that the law requiring that the entity give public notice of the "place" of a meeting requires no more specificity than "at the Chicago O’Hare International Airport.” More:

As applicable here, the Board’s notice provided that the “place” of the meeting was the “Chicago O’Hare International Airport” which is nearly identical to “Oakwood Inn in Syracuse, Indiana” provided in 04-FC-84. There is no allegation that there are multiple O’Hare International Airport’s in Chicago or there was any confusion regarding the exact location in Chicago where the O’Hare Airport was located.
"04-FC-84" is an earlier PAC opinion. It would seem to this observer that the issue was not "what is the Chicago O’Hare International Airport's street address?" but rather "where in the O'Hare Aipport is the meeting?" Otherwise, the notice would appear meaningless, as would a notice that a meeting is taking place "in Gary, Indiana" or "in the State Office Building complex."

MORE coming from the Lafayette Journal-Courier.

Posted by Marcia Oddi on Thursday, June 14, 2012
Posted to Indiana Government

Ind. Decisions - "Court reinstates Richmond man's burglary conviction"

The Supreme Court decision earlier this week in Michael Baker v. State (ILB summary here) is the subject of a story today in the Richmond Palladium-Item, written by Robert Sullivan. Some quotes:

On Tuesday, the Indiana Supreme Court announced it agreed with the judgment of the trial court, saying, “From this evidence presented, we conclude that a reasonable jury could have found beyond a reasonable doubt that the defendant committed breaking and entering of the church with the intent to commit theft. The judgment of the trial court is affirmed.”

On Jan. 22, 2008, Baker entered Harvest Time Tabernacle Church on West Main Street by breaking and crawling through a window. He cut himself on the window, and Richmond Police Department officers Aaron Stevens, Jeff Shoemaker and Dave Carter were able to gather blood from the scene to be analyzed.

When the blood was checked against a database of previous offenders, it was determined to be Baker's. Baker had previous convictions for child molesting and battery.

In November, Ann Goodwin of the Indiana Attorney General's Office argued on behalf of the state in the case that was prosecuted by Wayne County Prosecutor Mike Shipman. Local attorney Amy Noe argued on behalf of Baker, saying the evidence did not sufficiently show Baker intended to commit a felony.

Posted by Marcia Oddi on Thursday, June 14, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides 4-1 that transfer was improvidently granted in speedy trial case; rare written dissent

The Supreme Court held oral argument Friday, June 1st in Corey Fletcher v. State. From the Court summary at the time:

While facing drug charges in the Tippecanoe Superior Court, the defendant argued he was entitled to discharge on grounds his right to a speedy trial had been denied. The trial court denied the motion, and a jury found the defendant guilty of a class A felony and other offenses. A divided Court of Appeals reversed in Fletcher v. State, 959 N.E.2d 922 (Ind. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
This was a Jan. 18, 2012, 2-1 COA opinion reversing the trial court.

Released today, but filed June 12th, the Supreme Court has issued an Order stating:

After further review, including oral argument, a majority of the Court has determined that transfer was improvidently granted. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. The Court of Appeals opinion reported as Fletcher v. Donahue, 959 N.E.2d 922 (Ind. Ct. App. 2012), is no longer vacated under Appellate Rule 58(A), and is reinstated as Court of Appeals precedent. Pursuant to Appellate Rule 58(B), this appeal is at an end.
Notably, however, this is a 4-1 order and there is a dissent to the denial of transfer by Justice Massa, who writes:
The purpose of our Criminal Rule 4 is to give predictable substance to the State and Federal Constitutional guarantees of a “speedy” trial otherwise left undefined in our charters. In this case, habitual offender and methamphetamine conspirator Corey Fletcher was arrested in February, tried and convicted in July and sentenced to forty years in prison, a fair and efficient administration of justice by any measure. He now goes free, with no corresponding benefit to the body of law that protects every citizen’s rights, and contrary to precedents of this Court.

The Court of Appeals found a violation of Criminal Rule 4 when the trial judge ignored Fletcher’s pro se request that a speedy trial commence within the required 70 days. * * * That we might suggest a better alternative in hindsight does not establish an abuse of discretion occurred, particularly when the sanction to public safety is so severe.

Fletcher’s trial was timely and fair. His rights were not violated and his conviction should be affirmed. Worse, I fear this split decision of the Court of Appeals, see Fletcher, 959 N.E.2d at 930 (Friedlander, J., dissenting), left undisturbed, may sow confusion among trial judges confronted with pro se filings by represented defendants. For these reasons, I respectfully dissent.

Posted by Marcia Oddi on Thursday, June 14, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - SCOTUS decision in Armour (Indy Barrett law case)

Linda Greenhouse, esteemed NYT SCOTUS reporter for decades, and now doing occasional online commentary for the NYT, writes today about the SCOTUS' recent decision in Armour v. City of Indianapolis (earlier ILB coverage here). You need to read it in full, but here is the heart of her point:

Here’s the thing: In Bush v. Gore, the five most conservative justices, no great fans of an expansive reading of the Equal Protection Clause, surprised the world in 2000 by declaring that the Florida Supreme Court’s recount order violated equal protection in failing to assure uniform vote-counting standards across the state. The five were then so abashed at having invoked the Equal Protection Clause to stop the recount, and so afraid of inadvertently unleashing a new equal protection revolution, that they proclaimed that their opinion was never to be cited in any future case.

The Indianapolis case is the first decision since then, as far as I can recall, to repeat the equal protection flip, the conservatives seeing an equal protection foul where the others find none. I’m not counting cases about affirmative action and other racially conscious government policies, part of a bigger project where conservatives long ago flipped the traditional equal protection paradigm to view whites as the victims of government-sponsored discrimination. I mean novel claims of equal protection outside of race, equal protection as a vehicle for judicial intervention in policy choices made by other branches of government.

Greenspan believes this opinion, and particularly CJ Roberts part in it, may presage his position in the health care decision.

Posted by Marcia Oddi on Thursday, June 14, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Indiana Republicans, Democrats pull a platform reversal over gay marriage"

With a constitutional amendment to ban both same-sex marriage and civil unions in Indiana eligible in the upcoming General Assembly for second adoption and submission to the voters, Mary Beth Schneider of the Indianapolis Star writes in a long story today that:

On Saturday, Democrats will vote on a platform during their state convention that for the first time says the party "opposes amending the Indiana Constitution to define marriage."

Last weekend, Republicans approved a platform that has no mention of same-sex marriage.

The reversal has surprised advocates in the gay, lesbian, bisexual and transgender community who see the change as a signal that attitudes are evolving and that same-sex marriage isn't the wedge issue it had been in past elections. But the move also has disappointed social conservatives who do not want Indiana to sideline this issue.

Republicans say their platform is simply a change in focus in an election that is all about jobs. Democrats say their platform reflects both their long-standing commitment to equality and the changing attitudes among voters.

In a tweet, Star columnist Erika D. Smith writes (linking to the MBS story): "Good job Indiana lawmakers in standing a stand on #gay marriage!"

But Advance Indiana's Gary Welsh gives Indiana lawmakers a closer look in this post today:

Despite the fact that the Democratic Party is adopting a position opposing the pending constitutional amendment, more than a dozen Democrats elected to the state legislature supported the amendment when it was voted on last year, including House Democratic Leader Pat Bauer. The party's nominee for governor, John Gregg, has also supported the amendment and publicly distanced himself from President Barack Obama's recently declared "evolving position" now declaring his support for same-sex marriage after opposing it throughout his short political career. Gregg's running mate, State Sen. Vi Simpson, opposes the proposed state constitutional amendment banning same-sex marriages and other similar benefits. The Republican nominee for governor, Mike Pence, has a long history of hostility towards LGBT rights and supports the constitutional amendment. His running mate, State Rep. Sue Ellspermann, also supported the constitutional amendment during her first term in the House; however, she did support efforts to remove the additional language in the amendment that would also ban other benefits beyond marriage.

Posted by Marcia Oddi on Thursday, June 14, 2012
Posted to Indiana Law

Wednesday, June 13, 2012

Ind. Gov't. - "Civil Service Reform: Lessons from Georgia and Indiana"

The subhead to the story in Governing by Heather Kerrigan is "Several states this year are changing how public employees are hired and fired. They may be able to learn a thing or two from states that already have."

Posted by Marcia Oddi on Wednesday, June 13, 2012
Posted to Indiana Government

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

Updating this ILB entry from May 29th, David Barras reports this afternoon for WISHTV 8:

INDIANAPOLIS (WISH) - 24-Hour News 8 has learned Indianapolis bars and taverns on Wednesday re-filed their lawsuit in federal court to stop the smoking ban in Marion County. And this time, they are filing together instead of separately. * * *

While smoking bans have been upheld in other Indiana cities, attorney Mark Small, who represents the bar owners, says it's never been decided in federal court.

"The United States Court of Appeals for the seventh circuit in Chicago has not ruled on this issue,” Small said. “Nor has the United States Supreme Court. If we don't prevail here at the United States District Court we seek a certificate of applealability and take the matter to Chicago.”

Small says he is asking for emergency and expedited relief for his clients who are losing business every day the law is in effect.

Posted by Marcia Oddi on Wednesday, June 13, 2012
Posted to Indiana Courts

Ind. Courts - Adams County Courthouse expansion outlined

Jannaya Andrews reports in the Decatur Daily Democrat:

Once again Dave Sholl of Schenkel & Schultz Architecture was in front of Adams County Council members on Tuesday — along with all three Adams County Commissioners and countless others eager to hear what this newest study would bring — to present a proposed project to house several county offices and both courts under one roof.

In this latest presentation, Sholl showed how building an expansion to the current courthouse would provide an additional 30,000 square feet and require the movement of the Peace Monument from the southwest corner of the courthouse lawn to the southeast corner.

The proposed expansion would be placed perpendicular to the current courthouse, on the west side of the building, effectively eliminating the lawn on that side and giving the courthouse a "T" shape.

Under the new proposal, the ground floor would house Community Corrections and storage. There would also be a vehicle carport which would allow deputies transporting prisoners to and from court a secure entryway that would bypass public areas.

The west side of the courthouse would be the only public entrance point, with each individual passing through a security checkpoint upon entering.

The first floor would house the prosecutors' office, clerk's office, and the probation department, while the second floor would hold circuit and zuperior courts.

Along with the expansion, Sholl said there would need to be renovations done to the current building as well to provide the most efficient and secure use of space. For example, on the second floor there would be common space containing offices for court reporters, staff restrooms, evidence storage, security officers and bailiffs, that could be shared by both courts.

Sholl also proposed adding interview rooms for attorneys to meet with clients prior to court, a usable attic area that could be utilized in the future should any of the offices need more space, and that public restrooms and lobbies be added to each floor.

In the end, Sholl outlined an estimated timeline, with the project possibly getting underway in 2013, a groundbreaking in 2015, and completion in 2016 with an approximate construction cost between $8.75 and $10.75 million, should county officials choose to go with the latest proposal.

Council members and commissioners alike seem to be excited by this new proposal and Sholl said he will put together another package comparing all three studies that have been done to date for officials to consider.

"This way, you can see everything we've looked at so far and decide how you want to proceed," said Sholl.

Officials agreed and commented they feel they have explored all available options and feel they are in a much better place to make a decision.

Here, via Wikipedia, is a photo of the courthouse.

Posted by Marcia Oddi on Wednesday, June 13, 2012
Posted to Indiana Courts

About the ILB - Some responses from readers, Part 3

The ILB has received nearly 100 notes from readers, nearly all attorneys, located around the state, in response to this entry from June 5, 2012. I am posting quotes from readers' responses. Below is the third batch - Part 3 of 4. (Part 1 is here, Part 2 is here.)

Many thanks to all of you who have taken the time to respond! If you haven't, it is not too late ...

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The ILB has promoted awareness and participation in the judicial selection process. That is a value to the profession which I hope continues.

Whether Joel or Cara, you have put people in the room to report on full days’ worth of interviews when no other entity has. That is a perspective which is necessary to understand even a little bit of how the Commission works.

I don’t recall you ever promising no preference or bias and it is naïve to think you wouldn’t have preferences on the selections. Even when I have disagreed with things posted, I know your preferences and accept that you are filling a void no one else has. If one only wants their own biases, the meetings are public and anyone can watch with their own eyes - even if it isn’t convenient (or comfortable to sit in folding chairs all day).

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I am a relatively new attorney and I have found the ILB incredibly useful in keeping up with the legal community. In particular the coverage of the COA / INSC / etc application processes has given very valuable insight into the process, but just in general I know far more about what's going on both here in Indianapolis and statewide because of the blog. I wouldn't see most of the articles you post but for the fact that you posted them.

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Marcia, just read your latest post, and I wanted to say that I think your blog is one of the best Indiana blogs out there -- I value it immensely for the governmental coverage as well as the law/legal and policy coverage.

As a long time public information officer and communications director at three Indiana state agencies (State Senate/DOE and DWD) and at the Health and Hospital Corporation and Ivy Tech Community College, I was appalled when I read of the changes in procedures at the Indiana Courts, and how difficult they were making public information available -- what a total lack of transparency. I do not know who is pulling the strings there, but it looks like they have gone out of their way to make things difficult. It's too bad. The lack of transparency is a joke.

Does not ______ still work for the courts? As a former reporter, I can't imagine that he would support this.

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I value your coverage of environmental issues.

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I am a daily reader of your blog. As I am writing this, I realize I am writing for purely selfish reasons. Staying current on the legal community would be much more difficult if your blog were to end.

Your blog is the single most important news source for the legal community in Indiana. The information is timely and thorough. The information is also concise and typically includes links if I want more thorough information.

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Please keep up the good work. ILB is the ONLY place to get up-to-the-minute information on the appellate selection process and it is important work.

If you have an “agenda” on some issues, I don’t mind. Clearly, when anyone expresses an opinion, you can find those that do not agree. However, the expression of your opinions is part of the reason I enjoy your blog (and why I sponsor!). Your “agenda” never interferes with the reporting of the facts.

I am still amazed that more people do not financially support the ILB.

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I just saw your post and felt compelled to respond that that ILB is an absolutely wonderful resource that I use several times daily. The new SupCt and CoA opinions and summaries that you post every day are reason enough to consider the blog a must read for Indiana practitioners, but the other content you provide, including the Judge/Justice selection process summaries, provides extremely valuable and necessary insight into many issues that would otherwise likely not be noticed.

As for the people that say you have “an agenda,” I wouldn’t worry too much. You write a blog, not a newspaper. If people can’t discern the difference, then they are not likely the ones whose comments you need worry about. Here’s hoping that ILB is around for a long time to come.

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After reading your post today, I decided it is time to put my money where my mouth is. I would like to send you an (unfortunately small) check.

Please keep up the good work and hold firm to your “agenda”, which I think all attorneys should support.

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I for one highly value ILB’s coverage of the COA nomination process, as I do most of ILB’s content. I also support ILB’s “agenda” of openness and transparency (as well as agitating for female representation on the Indiana Supreme Court).

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The Law Blog is my daily go-to source for Indiana news--not just legal news, but news in general. You provide comprehensive, objective coverage that is, without a doubt, valuable. Although I can't offer public support, I reference the Law Blog routinely to friends and colleagues, and I hope you continue this endeavor.

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The ILB is set to my home page in my web browser because I feel it provides the best coverage of legal issues for Indiana lawyers. I'm not renewing my subscription to The Indiana Lawyer because it's frankly too Indianapolis-centric.

The ILB's coverage of the judicial selection process is, I believe, critical. Before ILB, I never felt informed about those appointments. Heaven knows the news media tells us nothing about the candidates beyond "a lawyer from St. Joseph County." I share your frustration at the apparent change in how much information is being made available to the public and the roadblocks that now appear to be in place. In this day and age, there's simply no excuse for not putting public judicial applications online. Making someone drive to Indianapolis and pay $.25 per page for a copy is not only an outmoded way of handling things, it sends a strong signal that the Judicial Nominating Commission doesn't want people reviewing those applications. The Commission may feel differently and believe its intentions are misunderstood, but it must learn to adapt to the public's expectations in a networked world.

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I use the ILB as my advance sheets and court news, daily. I appreciate your efforts.

Deputy Prosecutor (upstate)

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I read the Indiana Law Blog nearly every day and have found it an invaluable tool for learning about relevant legal issues throughout Indiana and the country. I know there have been many issues I would have missed from around the state and country if not for your dedication and hard work. I also find it exceedingly helpful that you post the latest Indiana opinions and relevant SCOTUS and 7th Circuit opinions in one convenient location. The ILB makes my life much easier and I thank you for it.

As for an agenda - I have never once felt like you had an agenda. Just a love of the law and a desire to keep us informed. If you do have an agenda that includes urging that women be appointed to the Supreme Court, I applaud you and appreciate your willingness to point out such a travesty.

I would be saddened and lost if you were discontinue your coverage.

Deputy Public Defender

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I agree totally with your agenda on opening records to people. That’s fundamental to our society, it’s fundamental to journalism, and it’s something that should be easier and easier for agencies to embrace in ways simpler and less costly than ever. While we’ve seen great strides in those areas with various levels of government, other levels still need a watchdog out there poking and prodding at times, and the ILB certainly does that.

Reporter (upstate)

Posted by Marcia Oddi on Wednesday, June 13, 2012
Posted to About the Indiana Law Blog

Ind. Courts - "Steuben judiciary leaders request more help"

Jim Measel reported this morning for WTHD 105.5 (NE Ind.):

ANGOLA - The Steuben County Council heard various members of the legal community ask for additional personnel on Tuesday due to higher case loads in recent years.

Circuit Court Judge Allen Wheat asked for a fourth staff person as he said his staff keeps getting farther behind.

Council member Ron Parker got a terse response when he asked the judge who the county would lay off if Circuit Court got a fourth employee.

Meanwhile, Public Defender Coordinator Hugh Taylor said another public defender will probably be needed as all of the current defenders are over 100 percent in their caseloads. But Taylor indicated he wanted to wait before making a formal request.

Steuben County Prosecutor Mike Hess said he would wait until the 2013 budget process to ask for an additional full time and part time person in his office. He did ask the Council to have a part time prosecutor who is currently working on collecting child support to also work on juvenile cases at a additional cost of $4,000. The formal funding request would have to come back before the Council at a later time once it is legally advertised.

Posted by Marcia Oddi on Wednesday, June 13, 2012
Posted to Indiana Courts

Ind. Gov't. - "IDEM releases proposed water permit for a $2.9 billion coal gasification plant planned for Rockport"

This May 8th ILB entry focused on IDEM's 1,012-page draft PSD New Source Construction/Part 70 Operating Permit for the plant - the air permit.

Today a comprehensive story by Mark Wilson of the Evansville Courier & Press reports on the draft water permit:

The plant, which will convert coal to synthetic natural gas, will be designed to reuse its wastewater and much of its collected stormwater, cutting down on its overall water use and potential for discharges, according to Indiana Gasification partner Bill Rosenberg.

A public hearing on the water permit is scheduled for 6 p.m. July 10 at the South Spencer High School auditorium.

The permit is one of the two major environmental permitting hurdles facing the plant. The project's air emissions permit is waiting final approval by the U.S. Environmental Protection Agency.

Gov. Mitch Daniels' Indiana Finance Authority has signed a 30-year contract to buy the Rockport plant's gas at a fixed, long-term rate and then resell it, having that contract's prices make up 17 percent of Hoosier ratepayers' bills.

Developers are negotiating with the U.S. Department of Energy for approximately $2.5 billion in loan guarantees that would apply to the plant's construction as well as the $1 billion construction of a carbon dioxide pipeline. Rosenberg said he hopes to have a commitment by the end of 2012. Construction could begin in 2013. * * *

Comments on the water permit will be accepted through July 16.

For the details of the permit, see the story and this news release, as well as the actual documents on the Indiana Gasification, LLC. draft NPDES permit available on IDEM's website.

Here is a long list of earlier ILB entries on the Rockport coal gasification project.

Posted by Marcia Oddi on Wednesday, June 13, 2012
Posted to Indiana Government

Ind. Decisions - "Seventh Circuit Slams Plaintiffs’ Lawyers in Sears Lawsuit"

Joe Palazzolo of the WSJ Law Blog has this entry on the opinion today by Chief Judge Easterbrook in the case out of Illinois. From the WSJ blog:

The lawsuit claims that two members of Sears’s board have directorships at other companies that compete with Sears, in violation of antitrust law. The two investors who filed the lawsuit – Robert F. Booth Trust and Ronald Gross — did so without first demanding that the board fix the situation, presumably by booting the directors.
From the opinion:
Plaintiffs told the district judge that a demand on directors would have been futile—and surely they are right, because, if they had made a demand, conscientious directors acting in investors’ interests would have nixed this suit. That’s a reason to require demand, not to excuse it.

The suit serves no goal other than to move money from the corporate treasury to the attorneys’ coffers, while depriving Sears of directors whom its investors freely elected. Directors other than Crowley and Reese would not have violated their fiduciary duty of loyalty by concluding that these two directors benefit the firm. Usually serving on multiple boards demonstrates breadth of experience, which promotes competent and profitable management. If the Antitrust Division or the FTC sees a problem, there will be time enough to work it out. Derivative litigation in the teeth of the demand requirement and the antitrust-injury doctrine is not the way to handle this subject.

Posted by Marcia Oddi on Wednesday, June 13, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court decides one, yesterday

In Michael Baker v. State, a 6-page, 5-0 opinion dated June 12, 2012, Chief Justice Dickson writes:

Defendant Michael W. Baker challenges the sufficiency of the evidence underlying his conviction for burglary. He contends that the State failed to adduce any evidence that would permit a reasonable jury to conclude that he acted with the requisite intent. We disagree and hold that there was sufficient evidence of intent to support the defendant's conviction. * * *

From this evidence presented, we conclude that a reasonable jury could have found be-yond a reasonable doubt that the defendant committed breaking and entering of the church with the intent to commit theft. The judgment of the trial court is affirmed.

Posted by Marcia Oddi on Wednesday, June 13, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Dennis Jack Horner v. Marcia (Horner) Carter , a 12-page opinion, Judge Vaidik writes:

Seven years after Dennis Jack Horner (“Husband”) and Marcia (Horner) Carter (“Wife”) reached a mediated settlement agreement during dissolution proceedings, Husband sought to modify the terms of that agreement on the basis of mistake. The trial court denied his request. Husband now appeals, contending that the trial court should have allowed him to offer extrinsic evidence—specifically, communications that occurred during mediation—to show that there was a mistake in the drafting of the agreement. We conclude that Alternative Dispute Resolution Rule 2.11 and Indiana Evidence Rule 408 allow the introduction of mediation communications to establish traditional contract defenses. We also find that the trial court correctly determined that the agreement in this case provided for a property settlement that survived Wife’s remarriage. We affirm.
In In Re the Matter of: B.N. and H.C., Children in Need of Services; M.C. v. Marion Co. Dept. of Child Services and Child Advocates, Inc. , a 9-page opinion, Judge Vaidik writes:
M.C. (“Mother”) appeals from the juvenile court’s determination that her son and daughter are Children in Need of Services (“CHINS”). Mother contends that the evidence is insufficient to support the juvenile court’s conclusion that her children’s physical and mental health were seriously impaired or endangered because of her inability, refusal, or neglect to supply them with necessary food, clothing, shelter, medical care, education, or supervision. We conclude that the evidence in this case is indeed insufficient to support the juvenile court’s determination that B.N. and C.H. are CHINS, and we therefore reverse. * * *

In sum, there was simply no evidence that the children’s physical or mental condition was seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of Mother to supply the children with necessary food, clothing, shelter, medical care, education, or supervision. We therefore conclude that the juvenile court’s determination that the children are CHINS was clearly erroneous. Reversed.

In Anthony D. Gorman v. State of Indiana , an 11-page opinion, Judge Barnes writes:
Anthony Gorman appeals his convictions for two counts of Class B felony robbery while armed with a deadly weapon. We affirm.

The two issues before us are: I. whether there is sufficient evidence to identify Gorman as the perpetrator of the robberies; and II. whether there is sufficient evidence that a deadly weapon was used during the robberies.

NFP civil opinions today (2):

Auto Liquidation Center, Inc. v. McKesha Bates (NFP)

Anthony Michael Beck and Sandra Beck, natural parents and next friends of Jacob Leslie Beck, minor v. Scott Memorial Hospital and Larry Hunefeld, M.D. (NFP)

NFP criminal opinions today (2):

Chad Stewart v. State of Indiana (NFP)

Carl D. Jackson, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 13, 2012
Posted to Ind. App.Ct. Decisions

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

In U.S. v. Tichenor (SD Ind., Barker), a 22-page opinion, Circuit Judge Flaum writes:

Cristofer Tichenor pleaded guilty to armed robbery and discharging a firearm in connection with robbing a bank. Pursuant to his plea agreement, he retained the right to appeal certain issues, including the applicability of the career offender sentencing guideline at United States Sentencing Guideline (“U.S.S.G.”) § 4B1.1. Although Tichenor’s counsel initially raised an objection to the application of the career offender guideline, he withdrew this objection at the sentencing hearing. The district court applied the career offender enhancement, based on Tichenor’s prior convictions for dealing hash oil and resisting law enforcement, and sentenced him to 300 months’ imprisonment.

Tichenor appeals his sentence by arguing that the career offender sentencing guideline is unconstitutionally vague and that the U.S. Sentencing Commission exceeded its authority in enacting the current definition of “crime of violence,” found at U.S.S.G. § 4B1.2(a). Although Tichenor likely waived these claims by withdrawing his objection to the application of the career offender guideline at sentencing, we proceed to address his claims because the government has waived the waiver argument. In accordance with our prior holdings on these issues, we conclude that the Sentencing Guidelines (“Guidelines”) are not susceptible to vagueness challenges and that the Sentencing Commission did not exceed its authority by promulgating the “crime of violence” definition. We therefore affirm the judgment of the district court.

Posted by Marcia Oddi on Wednesday, June 13, 2012
Posted to Ind. (7th Cir.) Decisions

Tuesday, June 12, 2012

Ind. Decisions - More on: "Indiana appeals court reverses murder, arson convictions: Advances in fire science cited in case of woman whose 3-year-old son died in 1995 blaze" [Updated]

Re the 63-page, 2-1 COA opinion issued March 21st in Kristine Bunch v. State of Indiana (here, third case - also note the links), the AP has a brief item this afternoon:

The attorney for an Indiana woman awaiting a new trial for murder and arson after the 1995 death of her 3-year-old son says she's devastated that the state wants her 1996 convictions reinstated by the Indiana Supreme Court.

Ron Safer said Tuesday that Kristine Bunch remains held without bond after the Indiana Court of Appeals ordered a new trial for her in March because the evidence the prosecution used to get her convicted was outdated, weak and wrongly withheld from the defense. He says she's devastated because the state's move delays the eventual outcome of the case, which they believe will be her acquittal and freedom.

The attorney general's office filed for the reinstatement of convictions on Monday.

The ILB is watching for a longer story and a copy of the AG's filing.

[Updated at 6:00 PM] Here is a copy of the Attorney General's petition to transfer, filed June 11, 2012.

Posted by Marcia Oddi on Tuesday, June 12, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Judge Posner on photo arrays

Michelle Olsen of @AppellateDaily tweets:

7th Cir.-More pics from Judge Posner; police headshots (p. 17; wonder how men feel about being in the F.3d forever).
Here is the opinion in USA v. John Ford. Some quotes from the opinion:
We move to the second and more substantial issue—a challenge to the photo array shown the bank’s manager, whom the robber had confronted after forcing an entry into the bank shortly after the bank had closed for the day. When police arrived after the robbery the manager had told them that although the robber had worn a dust mask that covered his nose and mouth, the manager could tell that the robber was a white man with “a very pale complexion” and “light colored eyebrows and freckles around his eyes.” * * *

In March 2009, 16 months after the robbery, a police officer presented the bank manager with an array of six head shots that included one of Ford; we attach a photo of the array at the end of this opinion. * * *

The photo array was suggestive. First, instead of showing the six photographs to the bank manager one by one, the police officer placed them on a table in front of him all at once, side by side in two rows, as in the photo at the end of this opinion (except that that’s a photo of all six photos, and what the manager was shown was the separate photos—but as he was shown them all at once, what he saw was equivalent to our composite photo). * * *

The array would have been less suggestive had the manager been shown the photos one by one (a “sequential” array). * * *

The accuracy of a sequential array can be improved by making it appear to the witness that there are more persons in the array than he’s been shown. The officer presenting the array could pause after showing the witness the first five photos and ask whether he’d spotted the robber yet. For if after having looked at the first five photos in an array of six (as in this case) the witness knew he was looking at the last one in the array, he might infer, if he hadn’t identified any of the first five, that the sixth photo was of the robber, or at least of the man who the police thought was the robber. But we suspect that even with the suggested adjustment the risk of misidentification is greater when the witness is looking from photo to photo, because they’re side by side, in an attempt to pick out the one that most resembles his recollection of the robber. * * *

Still another respect in which the array was suggestive was that the other five men don’t look like the robber, because, although all are adult Caucasian males of ap- proximately the same age, none is pale or has freckles. The only description that the manager had given the police was that the robber was very fair and had freckles, and only Ford’s photo matches that description. * * *

As awareness of the frequency of mistakes in eye- witness identification has grown [cites omitted] * * *

But we think the error was harmless.

Posted by Marcia Oddi on Tuesday, June 12, 2012
Posted to Ind. (7th Cir.) Decisions

Courts - Use of iPads by judges

Judge David Nuffer, of the Federal District Court in Utah, sent this informative guest post to 3 Geeks and a Law Blog. Some quotes:

According to a recent report, 58% of Federal Judges use an iPad for their court work. Two-thirds of the iPads in use are iPad2s. As expected, the tech-savvy (and tech-dependent) community of bankruptcy judges leads with a 70% use rate. * * *

The iPads have replaced laptops for many judges. Judges find the iPad very intuitive and less daunting than a laptop, and IT staff finds the iPad easier to support and less prone to technical issues.

According to surveys, federal judges use the iPad most for email, where the iPad’s large screen beats smaller mobile devices for easy reading of emails and attachments. Most judges also use an iPad for general reading because electronically filed documents are all PDF format. * * *

iPads, using the native keyboard or Apple’s quiet Bluetooth keyboard, are often used for courtroom notetaking. * * *

Challenges with iPad include the courts’ continued use of WordPerfect, which has no editor for the iPad. While WordPerfect documents may be read on the iPad, they cannot be effectively edited. Those chambers which have moved to use Microsoft Word have several editor options on the iPad but none as robust as are needed for complicated documents with footnotes and tables of contents. [ILB - I use OnLine Desktop, which allows this.]

Counsel submitting documents in the federal electronic filing system can make documents friendly for the iPad by ensuring that text-based PDF documents are filed – or if a scanned exhibit must be filed, run OCR on it before filing. These text based PDF documents are much easier to search and annotate. Also, bookmarks (automatically generated by most word processors and preserved in PDF conversion) make PDF documents easy to navigate. Finally, knowing a judge may read on the iPad could motivate wise use of color and inclusion of graphics.

Posted by Marcia Oddi on Tuesday, June 12, 2012
Posted to Courts in general

Courts - Digital devices replace court reporters in NJ courtrooms

Thanks to the WSJ Law Blog for the pointer to this long June 10th story by Kibret Markos in the New Jersey Record (covering north NJ). Some quotes:

The iconic figure of the court stenographer has largely been replaced by digital recording devices in Superior Court in Hackensack and Paterson and almost all such courtrooms in New Jersey as the state judiciary moves toward new technology.

Proponents say the change is a successful, cost-effective attempt by courts to keep pace with technology and keep reliable records of proceedings. But the switch also is being watched closely by skeptics, who say recording technology is never a full substitute for a court reporter.

Of concern are the uniquely human aspects now absent. For instance, court reporters often interrupt proceedings to get every word uttered by someone in a low tone or if more than one person is speaking at once. Recording equipment cannot do that, which explains the "inaudible" entries that often punctuate court transcripts from digital recordings.

"It's a transition from accurate records to adequate records," said Bob Tate, president of the Certified Court Reporters Association of New Jersey.

But court officials counter that the recording system is reliable: More often than not, inaudible words and phrases are not pivotal to proceedings, and even when they are, court rules allow for transcripts to be revised and corrected. Recording systems also have backup systems against failure, and besides, court reporters make mistakes, too. * * *

Tate cited a 2003 criminal case in federal court in Trenton in which the audio system left more than 10,000 inaudible and indiscernible entries, including testimony by key witnesses. The trial court then had to go through the transcript of the eight-monthlong trial, with both parties present, to rectify indiscernible entries.

Another case of poor recording involved Seung-Hui Cho, who killed dozens in the April 2007 rampage at Virginia Tech. Attorneys found Cho had once appeared before a judge for a civil commitment due to mental health issues, but that his responses to the judge's questions were inaudible.

Posted by Marcia Oddi on Tuesday, June 12, 2012
Posted to Courts in general

Ind. Courts - "School bullying case heads to trial"

Some quotes from a story this afternoon by Jeff Wiehe of the Fort Wayne Journal Gazette:

FORT WAYNE – A settlement offered – and then rescinded – by the local Roman Catholic diocese to the parents of boy allegedly bullied at Most Precious Blood Catholic School will not be enforced, an Allen Superior Court judge ruled last month.

Now, a case that at one point looked to be done through a $20,000 deal made behind closed doors is headed for trial.

The Diocese of Fort Wayne-South Bend and the parents of two students at Most Precious Blood were sued last year by the family of another student who claimed he endured bullying throughout 2008 and 2009 at the school.

This student, who had cerebral palsy and needed to wear leg braces, was allegedly pushed down stairs, battered and was subjected to “slanderous slurs regarding sexual orientation, physical abilities, and negative information regarding the parents,” according to the lawsuit.

After some mediation, the diocese and the parents of the alleged bullies agreed to settle the suit on two conditions: the specifics of the settlement and even that there was a settlement would not be made public.

The Journal Gazette, however, obtained a copy of the settlement in November, which called for the parents of the bullied boy to be paid nearly $20,000 – $10,000 of which was to come from the diocese, the rest from the parents of the students accused of the bullying.

Upon publication of the settlement the diocese rescinded the offer, according to court records. In a statement to the Journal Gazette, officials with the diocese wrote:

“Based on its investigation the diocese considers the claims baseless. Despite its conviction that the claims made against the Diocesan Parties were false, the Diocese wished to end the lawsuit so that those falsely accused of these allegations ... could go on with their lives without having to be continually involved in the legal proceedings.”

The parents of the bullied student, claiming they did not release the settlement, tried to have the settlement enforced.

Judge David Avery ruled that though the parents were not at fault for the settlement appearing in the press, he could not force the diocese to stick to the settlement because there was a breach of confidentiality.

Thus, the case goes on.

But not without a bit of a warning to the diocese from Avery, who wrote in his ruling to not enforce the settlement:

“However, it is well to consider the adage: Be careful what you ask for. The Court wonders if the trial of this dispute will now result in potentially worse publicity for Most Precious Blood School than if the matter were resolved with the Diocese’s explanation for why it was settling the case.”

Posted by Marcia Oddi on Tuesday, June 12, 2012
Posted to Indiana Courts

Ind. Gov't, - "Indianapolis Lawyer Kicks Off Campaign for Attorney General "

Eric Berman, of WIBC, has a brief report this afternoon on Indianapolis attorney Kay Fleming, who "is unopposed for the Democratic nomination [for AG]. She'll formally join the ticket at the party convention on Saturday." Here is her bio.

Posted by Marcia Oddi on Tuesday, June 12, 2012
Posted to Indiana Government

About the ILB - Some responses from readers, Part 2

The ILB has received nearly 100 notes from readers, nearly all attorneys, located around the state, in response to this entry from June 5, 2012. I am posting quotes from readers' responses. Below is the second batch - Part 2 of 4. (Part 1 is here)

Many thanks to all of you who have taken the time to respond! If you haven't, it is not too late ...

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I have been a trial court judge for 15+ years in ______ County. I handle both criminal and civil cases and I am in the courtroom most days almost all day. I look forward to visiting your blog each morning before starting my day to read the Appellate and Supreme Court opinions (both published and non-published), and to read the other legal stories. You have allowed me to take back my evenings, which were previously spent reading advance sheets and other legal news, and spend more time with my wife and family. Thank you!

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I don't think you have any idea how important your blog is to so many of us. _____ called me in a panic after reading your post because he was afraid you were considering not blogging anymore.

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I am an Maurer Law School alum and a reference librarian at the William & Mary Law Library. Your blog is my primary (and most days, exclusive) source for keeping up with Indiana legal news. I also greatly admire your work on government transparency. Due to your writings on non-code statutory provisions, I mention them to my legal research students and am slated to write an article on non-code provisions in Virginia for the state bar magazine.

In short, then, your blog is a valuable resource for me and I hope find it rewarding enough to warrant continuing. As a librarian, I also hope that you find a way to keep your blog accessible for future generations of researchers after you chose to stop maintaining it. I could be wrong, but I would not be surprised in the slightest if you blog has information on Indiana laws that would be very difficult to find elsewhere. Perhaps one of the four academic law libraries in Indiana would be interested in making a digital collection of your blog's contents. IU Bloomington has a pretty strong digital library program. Even being sure the Internet Archive has thoroughly crawled your blog would be helpful.

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The ILB is an outstanding resource. Amazingly the ILB is update to-date, up-to-the minute. It provides crucial information not findable anywhere else. I’m not sure how an Indiana attorney would know “what is going on” in more than their individual practice area and county without it.

Wondering aloud why there is not a woman on the Supreme Court bench is not an agenda. So long as the right candidates are applying, obviously the Supreme Court would be better if it were gender-diverse. The ILB’s only “agenda” in this regard has been to provide the public information about the candidates - showing that high quality female candidates have applied.

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I want to cast a resounding "Yea" vote for the Indiana Law Blog's continued existence, and for your advocacy for transparency in all governmental proceedings that affect the lives of all Hoosiers. Those with "agendas,"of their own, from across the entire spectrum of political thought, have never taken public interest into account, and have always pushed for closed doors, whether of wood, metal and glass, or the electronic kind. You provide an invaluable service which, in my opinion, amounts to nothing less than the preservation of the commons, and hence the public good.

As the archivist for a not-for-profit organization, I do not personally deal with litigation, but I check your blog several times a day for the excerpts from and links to newspaper articles and other sources of coverage for issues relevant to my work. I use Google alerts, and I also do my own searches--in a more traditional hunter-gatherer fashion--but I can't catch everything. In the process of skimming your blog for such coverage, I have become a better-informed citizen, especially in the realm of our democracy's legal processes, and how they function at the state, district and federal levels.

My only concern about the blog is one for your health. You don't miss a beat, you seem to live what you do 24/7, and I know that must be demanding. But you clearly love what you do. You would have to in order to do the work for so long.

If you're up to it, I say keep going. We need more people like you in the Indiana, as well as around the world.

=================

I’ve started writing this email about 3 different times and deleted it because I was having problems with the wording. “Don’t let the bastards wear you down” sounded too trite, but that’s effectively what I was (and am) trying to communicate.

Big deal, so you have an agenda … honestly, it’s one I completely agree with. Advocating for more openness/transparency/accessibility at all levels of government scares people. It’s always easier to just stuff things in a file cabinet than to put decisions/actions/holdings in a place where a light can shine on them. Accessibility both takes effort and risks embarrassing the decision-makers. Too damn bad. Having worked both in Indianapolis and outside of it, I know how “out of touch” a person can feel when one doesn’t live in the “donut.” The ability to easily access information is crucial. Hell, in a government by and for the people, that sort of accessibility should have been included amongst the inalienable rights.

As for your advocacy for women (which based on our prior email exchanges ranges well beyond just the necessity of a “supreme” appointment), thank you for giving all of us a voice online. Some think such a voice for women is no longer needed. I beg to differ – because somehow, in 2012, I still regularly run smack into someone else’s assumption that I am a secretary.

I was a 1L when the ILB’s first entry posted. I can’t begin to imagine the day when reading the ILB is no longer a part of my morning routine at the office. Is ten years long enough? Not just no, but hell no.

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I read your articles regularly. I can go to your page and learn all sorts of information at one location. I have practiced for over 35 years in a rural area as a sole proprietor. I support your efforts for women as I believe women in all professions should have power positions which for too many years men have jealousy precluded from occupying. Keep up the good work!

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Your coverage of the judicial selection process has been without equal. Because of the ILB, I have been able to read all of the applications (until this last round) and have gained tremendous insight into not only the selection process but into the new judges/justices on the appellate courts.

Do not give up and do not lose faith! Your work and the work of the ILB is invaluable.

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I love your blog! I try to read it on a regular basis. If you have an agenda that is okay with me. It is your blog so do what you like!

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Having dealt with several different governmental employees I am not surprised by their act of minimizing your comments by stating that you have an agenda ... In my experience, governmental employees do not handle criticism well, and typically do not respond by improving their performance and demonstrating an appreciation for the constructive criticism.

Your blog is a valuable resource for the legal community. Please do not respond to the typical, yet inexcusable behavior that we have seen recently regarding the coverage of the COA application process by ending your service. It is at the time when information sharing is being most curtailed that the service which you provide is the most valuable.

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Your coverage of the recent judicial selection rounds has made it possible for those of us who don't live in Indianapolis to feel connected to a process that has enormous importance for both lawyers and Hoosiers in general. Moreover, your coverage of significant litigation is exemplary. I appreciate especially your willingness to obtain and post copies of trial court filings and orders in those cases.

=================

As one who appreciates what you do, and sees that your agenda is made clear (all I ask is that if someone is trying to influence me, do it openly – and you do) I encourage you to take heart.

As a blogger you have taken on a special role to deliver news more timely than a newspaper has ever been able to do. You add valuable commentary to the news, and you aggregate information from sites that I would seldom look at, other online papers, Volohk Conspiracy, USA Today and NPR are sites I have added links to from your blog.

=================

I am not an attorney, but come to your page almost daily. Mostly, because I would like to think that I am an informed citizen...but I also work for a state agency. The agency that I work for, is regularly a party in appeals cases which makes me highly interested in the opinion of the court, regardless if it is FP or NFP. I garner functional information from the courts opinion that I can apply to my everyday work, especially as it relates to the direction that I give my employees.

So, I for one, appreciate what you do as it makes it a quite easy one stop shop for me!

=================

The ILB is a vital resource, it allows me to keep up on all sorts of statewide legal issues in one place. And it’s way more fun to read than the Ind. Lawyer. I like the fact that you don’t hide behind a false “objectivity.” No one is objective. I think it’s more important to be fair, and to let everyone know your biases. You do a good job of this.

As far as judicial selection, I don’t follow those stories terribly closely – but I do keep up with them.

So thanks for all you do. I love your blog, and hope to keep reading it for years to come.

=================

Marcia, I think you do a great service to Indiana lawyers. Thank you. And I agree women should be represented in all the Indiana courts.

=================

I think it is a deeply important and useful blog. Having been outside of the country for several years, but wanting to maintain a link to the Indiana legal community, I find your blog to be an invaluable resource. The regularity and breadth of your postings, your dedication to the legal community, the stripped-down, non-commercial format, and your occasional wry humor make it an example of what is great about the internet. I couldn't imagine a better blog on Indiana law. If people have a problem with your coverage they don't have to read it! If people are criticizing you for having an agenda, I think it shows simply that your blog is so highly-regarded that people see it as a public resource, and are surprised to find that a living, breathing person with opinions is behind it.

ILB has helped me keep a link to the state, and if I do eventually return it will perhaps be in part due to your dedication! Your coverage of the judicial selection process helps ensure the government is aware of the public eye being on them, at a time when most traditional media has been stripped to the bone and is unable to adequately cover legal topics.

All of which is to say, thank you very much. We greedy readers have probably gotten more out of the blog than you, but I hope you also get some satisfaction out of what at times surely feels like a thankless task.

[ILB: This writer is located in Shanghai, China]

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I consult the ILB daily, sometimes hourly. Your coverage of goings on down state is most helpful and appreciated. As a deputy prosecutor, I have come to use your case law updates, both the summaries and the links, to stay current with IN. criminal case law. While you may have an agenda, I've never noticed the ILB striking the strident tone that permeates much of the public discourse these days.

Obviously you'll do what you feel you must, but I would like to encourage you, especially vis-a-vis the government's almost instinctive tendency towards secrecy and the idiots who may complain of your "agenda" thusly: Don't Let the Bastards Get You Down!

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This ILB reader greatly appreciates your insightful coverage of the the Court of Appeals and Supreme Court. Three cheers for everything on your agenda.

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It is a tremendous value for me - as a [TV] reporter this site is one of the first I check EVERY DAY…. PLEASE KEEP up the good work !

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I certainly appreciate reading your blog and I hope you will continue to write it despite the recent challenges involving covering the judicial selection process. Thanks for advocating for openness and transparency.

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I sincerely hope that you continue with your blog and that 10 years is not enough for you. I read your blog daily and value the information that you provide. I believe that you are providing a valuable service and know that many others feel the same. Thanks for all your work you have put into this site.

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First, I couldn't practice remotely as well without your blog. I thank heaven for it, every day.

Second, agenda? I have discerned that certain issues are important to you, e.g., women on our courts. But these should be important to every attorney, regardless or the attorney's exact position. Speaking as one who frequents blogs all over the political spectrum (to maintain a balanced viewpoint), I can say with certainty that your coverage of events is well-thought, unbiased, and assuredly helpful.

Third, I too am chagrined at the apparent change of openness from our courts over the past month. I was never a huge Shepard fan, but am increasingly sorry that he is gone.

Please don't let the naysayings of a nasty few in any way slow or derail your excellent, and increasingly essential, work at the blog. You are not highly regarded for no reason, and yours is the FIRST blog I read every day. Bar none.

Change nothing, and stay the course.

=================

In regards to your recent post, I wanted to write to tell you I greatly value your Indiana Law Blog. As a business attorney, I have only a passing interest in your court of appeals selection coverage. However, I find your blog to be a the best resource I have found to keep up to date about Indiana law related issues. It is on my list of websites I visit at least weekly. In short, it is a must read.

I tried to start a blog in 2007. I understand the dedication it takes to keep blogging when sometimes it seems like no one is reading and there are few rewards to be had. If you quit because you are burned out, I wouldn't blame you. But it would be a shame if a few criticisms you received caused you to give thought to ceasing your invaluable publication.

I don't perceive you to have "an agenda" - or at least one that I take issue with!

=================

I will miss the ILB if it goes dark. If the blog has become all burden and no reward, I would rather see you pass the torch than quench the flame forever. You've become the mother to something that ought to continue. I know that the lawyer in you would advise any silver-haired entrepreneurial client to have a plan of succession. Going commercial (pop-up ads, etc.), hosting other (less worthy) blogs, or even scaling back the mission are among the potential alternatives that I would see as superior to closing the blog. Thanks for the effort so far.

Posted by Marcia Oddi on Tuesday, June 12, 2012
Posted to About the Indiana Law Blog

Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In the Matter of the Involuntary Term. of the Parent-Child Rel. of V.B., and R.B.; R.B. v. Indiana Dept. of Child Services (NFP)

Eric D. Smith v. Steve Euler, Melvin Brooks, Marty Sexton, and Jason Jacob (NFP)

NFP criminal opinions today (7):

Anthony Tyrone White v. State of Indiana (NFP)

Carlton P. Wilson v. State of Indiana (NFP)

Jack Arthur Griffin v. State of Indiana (NFP)

Michael J. Maurer v. State of Indiana (NFP)

Hassan M. Aljarah v. State of Indiana (NFP)

Donato Luna-Quintero v. State of Indiana (NFP)

James O. Reichenbaugh v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 12, 2012
Posted to Ind. App.Ct. Decisions

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

In Svetlana Arizanovska v. Wal-Mart (SD Ind., Young), a 12-page opinion, Circuit Judge Bauer writes:

Svetlana Arizanovska filed an action against her employer, alleging that she was discriminated against because of her pregnancy and her national origin. She added state-law claims of intentional and negligent infliction of emotional distress. The district court granted summary judgment against her on both her federal and state-law claims. We affirm.

Posted by Marcia Oddi on Tuesday, June 12, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on: Transfer list for week ending June 8, 2012

The ILB has now updated the Transfer Law summary first posted yesterday, including brief summaries of the cases granted transfer. Interesting reading that may give some insight into the Supreme Court in transition.

Posted by Marcia Oddi on Tuesday, June 12, 2012
Posted to Indiana Transfer Lists

Courts - "Courts Invalidate Federal Law’s Rejection of Same-Sex Marriage"

Joanna L. Grossman, Hofstra University law professor and a regular columnist for Justia's Verdict, writes at length today on the three recent federal district court decisions (two within the past two weeks) invalidating "Section Three of DOMA, which defines marriage for all federal-law purposes as a union between a man and a woman." Her concluding paragraph:

Section Three of DOMA is under attack from many angles. The Executive Branch has refused to defend its validity in court and has, in isolated cases, refused to apply it in administrative proceedings as well. Congressional Democrats have introduced and pushed the Respect for Marriage Act, which would repeal it outright. And now, three federal courts have held that it is unconstitutional. ... As same-sex marriage gains traction—it is now legal in eight states and the District of Columbia, as well as in numerous foreign jurisdictions—the federal government cannot continue to refuse recognition unless it abandons a bureaucratic infrastructure in which the federal government chooses to defer to state law on virtually all family-status determinations, including marriage. And the federal government surely should not maintain a law that arises purely from animus against a politically unpopular group. In sum, DHHS and Windsor are two more steps in the direction of righting the wrong that is DOMA.

Posted by Marcia Oddi on Tuesday, June 12, 2012
Posted to Courts in general

Courts - SCOTUS "Saves Best for Last"

Peter Landers discusses briefly in the WSJ Law Blog five of the high-profile cases awaiting decision this term. They include the health-care law, Arizona immigration, and "life sentences without parole for juveniles convicted of homicide."

Posted by Marcia Oddi on Tuesday, June 12, 2012
Posted to Courts in general

Ind. Law - "Evansville meth lab reports on pace to match last year"

Arek Sarkissian II reports in the Evansville Courier & Press:

EVANSVILLE — The number of one-pot methamphetamine lab cases reported in Evansville this year is about on par with the same period through this time in 2011, according to numbers provided Monday by the Evansville-Vanderburgh County Drug Task Force.

As of June 1, the task force took 41 meth-related reports; there were 43 reported during the first half of 2011.

The pace could set Vanderburgh to lead the state in meth lab cases for a third consecutive year. * * *

Marion County, which includes Indianapolis, reported six labs, two more than last year. * * *

Meth production grew in rural parts of the state around 2005 where anhydrous ammonia, which is used in farm fertilizer, was commonly stolen. The labs tied to the ammonia also were large and required seclusion.

The one-pot method, which substitutes cold compress packs commonly found in first aid kits for the anhydrous, brought meth production into urban areas such as Evansville. The cold compress and other chemicals are used to refine cold medication known as pseudoephedrine into highly potent meth.

More from a March 8th story by the same reporter:
For the second year in a row, Vanderburgh County earned the notorious distinction of having the highest number of meth cases in the state, with 116 reported. There were 95 cases reported in Vanderburgh County in 2010, according to Indiana State Police officials.

At least 74 percent of all meth cases reported last year were one-pot labs, which use first-aid cold compress packs to generate the ammonia needed to help refine the cold medication, pseudoephedrine.

Meth manufacturing using anhydrous ammonia, which normally is found on farms, is not as popular anymore, but rural communities still see it.

Posted by Marcia Oddi on Tuesday, June 12, 2012
Posted to Indiana Law

Monday, June 11, 2012

Environment - AG Zoeller concerned about Asian Carp in Indiana rivers, such as lower Wabash.

See the news release.

Posted by Marcia Oddi on Monday, June 11, 2012
Posted to Environment

Ind. Decisions - Transfer list for week ending June 8, 2012 [Updated]

[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, June 8, 2012. It is four pages (and 39 cases) long.

Seven transfers were granted last week:

[More] There are two more cases at the end:

Posted by Marcia Oddi on Monday, June 11, 2012
Posted to Indiana Transfer Lists

Vacancy on COA 2012 - More on: The ILB is anticipating the release of the Judicial Nominating Commission's report to the Governor

Updating this ILB entry from this morning, the JNC has now posted a 6-page letter from Chief Justice Dickson, writing as Chair of the Judicial Nominating Commission, to Governor Daniels, setting out the Commission's written evaluation of each nominee. Access the letter here.

In addition, the Commission has posted online the photos and applications of the three finalists.

Posted by Marcia Oddi on Monday, June 11, 2012
Posted to Vacancy on COA 2012

Ind. Decisions - One Indiana case today from 7th Circuit

In IP of A West 86th St v. Morgan Stanley (SD Ind., Barker), a 23-page opinion, Circuit Judge Flaum writes:

In this case, twenty limited liability companies (“the Investors”) joined together to invest in property in Indiana. Needing a loan to finance their purchase, they formed a distinct limited liability company, IP of A Fund Manager, LLC (“IPA Fund Manager”), and vested in that entity the authority to negotiate and execute a loan on their behalf with Morgan Stanley Mortgage Capital Holdings, LLC (“Morgan Stanley”). They named Edward Okun as Manager of IPA Fund Manager. Okun executed a loan, mortgage, and reserve security agreement with Morgan Stanley.

IPA Fund Manager, under the terms of its authority, was not allowed to hold an ownership interest in any of the twenty limited liability companies; it is not clear from the terms of the contract whether Okun, in his individual capacity, was precluded from an ownership interest, as well.

Morgan Stanley decided to sell the loan, ultimately agreeing to sell it to an Okun-controlled entity, IP of A 5201 Lender, LLC (“IPA Lender”). As it structured the sale, Morgan Stanley agreed to offset the purchase price of the loan by the amount of funds available in several escrow, reserve, and impound accounts (hereinafter “the escrow accounts”), in which it held a security interest and which were, under the terms of the loan with the Investors, required to reimburse the Investors for maintenance, taxes, and other property-related expenses. IPA Lender, now holding the loan, never reestablished the escrow accounts, depriving the Investors of $1,361,184.63 in which they, too, had an interest.

Having abandoned their suit against Okun-controlled IPA Lender, the Investors claim that Morgan Stanley, by allowing IPA Lender to use the escrow funds to finance its purchase of the loan, breached their loan agreement and committed conversion. The district court granted summary judgment for Morgan Stanley. We affirm the district court’s ruling.

Posted by Marcia Oddi on Monday, June 11, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP) [Corrected]

Correction: ILB originally misclassified Healey as NFP.

For publication opinions today (4):

In David S. Healey v. State of Indiana , an 18-page opinion, Judge Friedlander writes:

David S. Healey appeals his conviction of three counts of Failure to Register as Offender, all as class C felonies. Healey presents the following restated issues for review:

1. Did the trial court correctly deny Healey’s motion to dismiss, based on his claim that the Indiana Sex Offender Registration Act (SORA), I.C. §§ 11-8-8-1 through 11-8-8-22 (West, Westlaw through legislation effective May 31, 2012) constitutes an ex post facto law in violation of the United States and Indiana Constitutions as applied to him?
2. Did the trial court abuse its discretion in sentencing Healey and impose an appropriate sentence?

We affirm and remand with instructions. * * *

1. Healey contends the trial court erred in denying his motion to dismiss, which was based on his claim that, as applied to him, SORA constitutes an ex post facto law in violation of the United States and Indiana Constitutions. * * *

Of the seven factors identified by Mendoza–Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only two lean in favor of treating the effects of the 1995 amendment as punitive when applied to Healey. The remaining factors lean in the opposite direction, even if slightly. Significantly, the seventh and perhaps most important Mendoza–Martinez factor, leans in favor of treating the amendment as non-punitive when applied to Healey. Therefore, we conclude that Healey has not carried his burden of demonstrating that as applied to him, the 1995 amendment violates the Indiana constitutional prohibition against ex post facto laws.

2. Healey contends the trial court abused its discretion in sentencing him and imposed an inappropriate sentence. * * *

In summary, we conclude that his extensive criminal history, by itself, justified the sentence imposed by the trial court. Healey has failed to persuade us that his sentence is inappropriate.

In Michael Phelps v. State of Indiana , a 19-page opinion, Judge Friedlander writes:
Michael Phelps appeals from his conviction of and sentence for Attempted Murder as a class A felony. Phelps presents the following consolidated and restated issues for our review:
1. Did the trial court with juvenile court jurisdiction abuse its discretion by waiving its jurisdiction?
2. Did the trial court with juvenile court jurisdiction err by denying Phelps’s motion to close the proceedings?
3. Did the trial court commit reversible error by denying Phelps’s motion for change of venue after jurisdiction had been waived?
4. Is Phelps’s sentence inappropriate in light of the nature of the offense and the character of the offender, or otherwise in violation of the state and federal constitutional prohibitions against cruel and unusual punishment? * * *

We find nothing unusual about a thirty-five year sentence, with five years suspended, for a conviction of attempted murder. Judgment affirmed.

ILB: For background on the high-profile Phelps case, see this entry from July 11, 2011.

In Delmas Sexton II v. State of Indiana , an 11-page opinion, Sr. Judge Shepard writes:

Delmas Sexton II appeals his sixty-five-year sentence for felony murder. Principally, Sexton contends that the trial court abused its discretion in sentencing him when it found as an aggravating circumstance the fact that as a multiple-conviction felon he was unlawfully possessing the gun he used to kill his victim. This is a question about which there is some disagreement in the reported decisions, but we affirm.
In Canon Harper v. State of Indiana , an opinion on rehearing, Chief Judge Robb writes:
Canon Harper has petitioned for rehearing of this court’s decision in Harper v. State, 963 N.E.2d 653 (Ind. Ct. App. 2012), in which we affirmed Harper’s convictions for dealing in cocaine, possession of cocaine, dealing in a narcotic drug, and possession of a narcotic drug, all Class A felonies; two counts of resisting law enforcement, battery of a law enforcement officer, and possession of paraphernalia, all Class A misdemeanors; and maintaining a common nuisance, a Class D felony. We held, inter alia, sufficient evidence existed to support Harper’s convictions. We grant the petition for rehearing to clarify our conclusion that Harper constructively possessed the contraband that led to his convictions for dealing, possession, and maintaining a common nuisance. In all other respects, we reaffirm our opinion.
NFP civil opinions today (4):

Ron Weathers v. Jessica Turley (NFP)

Sucharita Ananthaneni v. Access Therapies, Inc. (NFP)

Karen D. McGuinness v. Michael F. McGuinness (NFP)

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

NFP criminal opinions today (1):

Steven G. Fraley v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 11, 2012
Posted to Ind. App.Ct. Decisions

Law - "With Profession Under Stress, Law Schools Cut Admissions " [Updated]

That is the headline to this important but $$$ only story today in the WSJ, authored by Joe Palazzola and Chelsea Phipps. The story begins:

Law schools are experimenting with a novel solution to the nation's glut of attorneys: mint fewer of them.

Faced with a weak job market for lawyers and a dwindling number of applicants, several law schools are cutting the size of their incoming classes, a move legal experts describe as unprecedented. * * *

"This looks like it's a big structural shift," says William Henderson, an Indiana University law professor who studies the market for law jobs. "Law schools don't think this is going to bounce back."

I expect to update this later when the freely-available WSJ Law Blog writes about it. [Update: Here is the Law Blog post, with plenty f quotes.]

[More] I'm told this link may retrieve the WSJ story.

Posted by Marcia Oddi on Monday, June 11, 2012
Posted to General Law Related

Ind. Law - "134 new laws will take effect in Indiana 20 days from today."

Eric Berman of WIBC has the first story (including audio) I've seen.

Here is a quick list of the laws that passed in 2012 and when they take effect: the 2012 Enrolled Act Summary.

One way to find out more about any of the new laws on the list is to use The Indiana Law Blog's Legislative Research Shortcuts.

Posted by Marcia Oddi on Monday, June 11, 2012
Posted to Indiana Law

Vacancy on COA 2012 - The ILB is anticipating the release of the Judicial Nominating Commission's report to the Governor

This statement in a June 5th story in the Indianapolis Star is most likely not accurate. It begins:

A list of three candidates for an open position on the Indiana Court of Appeals has been forwarded to Gov. Mitch Daniels, who has 60 days to make his pick, according to the online version of Indiana Lawyer.
The three finalists were announced on Monday, June 4th, in this official Court press release that begins:
The Indiana Judicial Nominating Commission named Hon. Robert R. Altice, Jr. of Marion Criminal Division 2, Ms. Patricia Caress McMath of Indianapolis, and Hon. Rudolph R. Pyle, III of Madison Circuit Court 1 as finalists for the upcoming vacancy on the Court of Appeals of Indiana. Governor Mitch Daniels will appoint the newest Court of Appeals judge from among the three names submitted to him by the Commission.
No mention in the official release of the names having already been forwarded to the Governor.

In the past three selection processes, this forwarding has been done about a week after the announcement by the Judicial Nominating Commission of three finalists' names. It has taken the form of a formal JNC Report to the Governor, per IC 33-27-3-2(f), which provides:

(f) The commission shall submit with the list of three (3) nominees to the governor its written evaluation of each nominee, based on the considerations set forth in subsection (a). The list of names submitted to the governor and the written evaluation of each nominee shall be publicly disclosed by the commission.
Here are some past reports:

Posted by Marcia Oddi on Monday, June 11, 2012
Posted to Vacancy on COA 2012

Ind. Gov't. - Approval by IURC of construction of a coal gasification plant and a 30-year contract for a state agency to purchase its output is now pending before the Court of Appeals

This ILB entry from Nov. 22, 2011 is headed "Gasification plant gets green light, NIPSCO rates could go up." A linked NWI Times story begins: "State regulators Tuesday approved construction of a coal gasification plant and a 30-year contract for a state agency to purchase its output." This entry from Nov. 25, 2012 contains a link to, and quotes from, the 106-page order of the IURC, approved Nov. 22, 2011. The vote: "ATTERHOLT, LANDIS AND ZIEGNER CONCUR; MAYS AND BENNETT NOT PARTICIPATING."

That administrative Order of the IURC has been appealed.

Here is the Docket - INDIANA GAS COMPANY, ET. AL. v. IND. REGULATORY COMMISSION.

The ILB has been able to obtain the briefs in the case.

(Here is a long list of earlier ILB entries on the proposed Rockport coal gasification project.)

ILB Observation: If, after a Court of Appeals opinion in this case, the Supreme Court grants transfer, recusal issues may well arise.

Posted by Marcia Oddi on Monday, June 11, 2012
Posted to Indiana Courts | Indiana Government

About the ILB - Some responses from readers, Part 1

The ILB has received nearly 100 notes from readers, nearly all attorneys, located around the state, in response to this entry from June 5, 2012. I will be posting quotes from readers' responses. Below is the first batch - Part 1 of 4.

Two notable things to me: (1) it seems nearly everyone who responded uses and relies on the ILB case summaries; and (2) "agenda" seems to be totally subjective - most saw no agenda; a few saw an "agenda" but either agreed with it or felt, as one reader wrote: "You're running a blog, not the ISBA house organ, or the Star!"

Many thanks to all of you who have taken the time to respond! If you haven't, it is not too late ...

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I consider your blog to be an extremely valuable resource. I’m the Chief Deputy Prosecuting Attorney in ____ County, and I can’t count the number of times over the last several years that another attorney has cited a recent case in Court and I’ve realized that not only did he or she misquote it, but that I was aware of it from your blog, and that I knew the case because I had followed the link you provided and READ the case the week before (far too many of our colleagues still cite head notes without reading the cases, even though the internet has made finding and reading them so ridiculously easy).

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I have a hard time envisioning a day without ILB. I am not trying to be melodramatic. The truth is that I have come to rely upon the fact that you provide up to the minute list of opinions for my jurisdiction, state and federal, along with relevant news links and spot-on analysis.

I do not know what your numbers are (hits per day) but I can not think of any more influential source for my legal practice. I am willing to wager that there are many other lawyers out there, like me, that check your web site early in the day and late in the day to instill confidence that all significant legal issues of the day are identified.

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I read your Tuesday post with great concern. First, I have grown to depend on your blog for updates and currents news on many matters concerning the legal system in Indiana. After I sign on of the morning, it is the first place I visit and the last place before I sign off and go home.

Secondly, I cannot understand the change in the transparency of matters that occur at the appellate courts but there seems to be a lot of strange changes coming to the courts of our state so only time will tell.

=================

Your Indiana Law Blog is probably my longest and most consistently read item on the Internet. Please keep it going.

=================

I appreciate your efforts on the Indiana Law Blog. It is not only the best way to find out what is going on in the legal community, but you always try to share interesting tidbits from around the nation that may impact the practice here locally. Your coverage of the judicial selection process has been very interesting. But your coverage of cases and opinions is by far the most helpful as it is the quick posting of links to opinions that keeps me informed in a timely manner. And it is also appreciated that there are no “hidden” agendas or political slants associated with your blog. Your blog is currently set as my home page because I want to be in the know!

=================

I sincerely hope you decide to continue writing and providing coverage. I think the ILB is a great tool for keeping everyone informed on legal news throughout the state.

=================

Remember the Daniels statement that few dared to quote (you did) that people should just shut up about appointing a woman to the Supreme Court—or that somehow this would belittle or taint any eventual appointee?

I’m out of my “shut up” phase of my career (28 years in and has the career changed all that much for women?) and I am well into my “make me” phase.

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Thank you for all you do for the benefit of the Indiana legal community. The ILB has been particularly valuable in giving Hoosiers insight and access into the selection process for the judges on the appellate courts. Too few citizens recognize the importance of this process to our everyday lives.

I admire that you publicly questioned the lack of online access to the applications for the current Court of Appeals vacancy. Hopefully, this was a one-time lapse caused by the transition to the new CJ. I find it difficult to believe that Shepard or Dickson would have agreed with the change. How interesting that someone in the administration office thought no one would notice!

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I read your blog daily and appreciate it deeply. I certainly appreciate your coverage of the appellate and supreme court selection processes. ILB is my go-to source to keep track of new decisions, and frankly I’d sorely disappointed if I had to resort to other sources for coverage.

While I recognize your agenda, I think anyone with sufficient training to take and pass the Bar is able to parse agenda from objective content and make their own decisions. It isn’t clear to me why having an agenda is necessarily a bad thing, and a blog is certainly the proper forum for the addition of editorial comment. To borrow a phrase commonly used by hip-hop artists, “haters gonna hate.” There will always be critics when you do something publicly. We have an entire sub-industry based on criticizing the clothes people wear. Our profession tends to attract people who will nitpick and find flaws in any endeavor. I’d hate to see such a valuable resource as the ILB laid to rest simply because of criticism.

Please know that your fight for openness in the selection processes and your ongoing coverage of legal developments in Indiana is highly valued.

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As a loyal reader, I wanted to let you know that you are the principal way I keep informed about Indiana legal developments from my perch here in DC. I appreciate the effort that you and Prof. Schumm have put into coverage of the court appointments-- the amount of effort probably isn't worth it if all of your readers exhibit my level of interest, but I'm sure that others have a much greater interest in that particular topic. And I appreciate you holding the Court's feet to the fire over the latest snafu regarding public access to the applications.

As for your point of view/agenda, it is not one that I always share. But you know what? You're running a blog, not the ISBA house organ, or the Star! I would ignore chattering about your "agenda." The Bar is served immensely well by your blog, and I hope that you will continue with it.

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I review your case summaries almost daily, and find them invaluable. While I follow the information regarding the appellate court judge selection, I find it not that helpful. I think the comments by Judge Magnus-Stimson are right on. Those who think our selection of judges is not political are ill informed.

You do a great job with the Indiana Law Blog. Keep up the good work.

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For what it's worth, I want to thank you for all of your hard work and dedication to the Indiana Law Blog. I have been a regular to the site since entering law school just 3 short years ago. Even now, as I sit here studying for the bar exam, I visit your site daily (multiple times a day, actually). I probably use the site most often to check the latest Supreme/Appeals Court decisions handed down. I follow you on twitter and get a little excited every time I see that tweet letting me know that you've posted the recent decisions.

I also appreciate, and follow religiously, your coverage of the court nominations process. Thank you for all that you do, and I hope you know that all of your hard work is truly appreciated...even by someone who's not quite a lawyer yet.

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Everyone has an agenda. This is really only a problem when people try to conceal their agenda. You’re pretty open about your views Marcia so I don’t see a problem. I’m sure the people that claim you have an agenda have an agenda behind their claim that you have an agenda, sounds kind of silly but not everyone is a friend of transparent government. I always start with the Indiana Law Blog when I read my morning news. If you do decide to retire the blog I’ll sorely miss it. Because of your reporting on Legislative Redistricting I was able to lend a hand to Common Cause and help them overcome some technical issues related to the GIS software on the public redistricting terminals. If it hadn’t been for your reporting I wouldn’t have been able to deduce they were probably experiencing problems. Thank you for everything you’ve done.

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Marcia, I certainly appreciate your work and dedication to your blog. While not all posts are of interest to me, most are, and many times I have copied certain posts and distributed to people in my organization who work in the area of that post. You are doing valuable informative work for the legal community, and I do not understand why more lawyers and firms do not support your efforts. After a breather, I hope you carry on, but in all things done without sufficient financial support there is an end. Whatever your decision, I wish you well.

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I don’t always agree with you, but that’s why we have the free marketplace of ideas so can put out our competing messages and let the audience decide what they want to consume. Abdul-Hakim Shabazz, Esq

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I read or check the Indiana Law Blog every day. As a member of the Indiana legal community, I consider all of the topics you cover relevant. I look forward to more of the same great work from you. Please keep it up!

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Please, please keep doing what you're doing. I check the ILB daily; I don't watch the news or check news websites often, so your blog is the best source of local news for me, as often, the news I'm concerned about has a legal aspect.

Your reporting on the court vacancies was riveting, and I completely agree with your position about appointing a woman justice. It's shameful that the current administration doesn't feel the same way. Aren't more than 50% of the incoming law school students women?

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I want to encourage you to hang in there. Your agenda of transparency deserves recognition as the great public service it is. Many influential folks read your blog. You are a catalyst for positive change. I rely on you as an important source of courts and legal profession coverage in Indiana.

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Although I am not an attorney, I read this blog daily. Reading your blog was the first thing I did every morning when I was Clerk of the Circuit Court. You have tremendous skill in capturing information that would otherwise be lost in the daily onslaught of trivia. Please continue.

Do you accept contributions? If so, please provide a link or information. Thank you.

[ILB: Absolutely! Please see the end of this ILB entry.]

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I am a young attorney and I am not a native Hoosier. Without your blog, I would have very little knowledge of what goes on in the legal industry in this state. Also, the blog is how I find out when there are new cases in Indiana/the 7th Circuit that are relevant to my job.

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You rock! Please keep it up!

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I am hoping that the reason this round of judicial selection lacked the openness of prior judicial selection rounds was because due to the transition, the new Chief Justice did not have time to properly oversee how the court's staff handled the distribution of information regarding candidates applying for a position on the appellate court.

I regularly read your blog and enjoy very much the coverage of the judicial selection process and the openness with which it was previously handled and which I hope returns again. Marcia, keep up the good work. I know it is discouraging because you are on the front line but without blogs such as yours, how would the rest of us know what is going on? Thanks for the important service you perform.

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I read and re-read your letter. Without attempting to respond in great detail, I welcomed your invitation to (as the saying goes) “engage in a dialogue.” One of the first things I do on a daily is go the Blog to see what’s going on, not only here in Indy, but statewide through your coverage and postings. And, the almost real time posting of appellate opinions is “must reading”. I have been urging all of our lawyers to use the blog to keep up. If there was a clone of you, it would be great to have more “coverage” of the District Court decisions. While Judge Tinder (and Judge Posner) remind us that District Court opinions are not precedent, our Districts are very active, with a lot of talent.

As to any “agenda”, boy this is the first I heard of it. I think sometimes folks confuse having a “point of view” with an “agenda”. For example, as I shared with you on the COA/Sup. Ct. applications, I was amazed at the detail and depth required of applicant’s submissions. I gained a lot more respect for applicants that would be willing to make that commitment, and share that range of information, in the pursuit of public service on the bench. The regression on the electronic posting seems, at least, incongruous with the stated policy and efforts to fully engage the Indiana judiciary in case management, and case access, in the electronic age.

I wonder if Chief Justice Shepherd and Justices Boehm and Sullivan have opinions on this matter?

Finally, from what I know of what it takes to provide content and continuity to a blog like ILB, it has to be a ‘labor of love’. I sincerely hope that you will continue as long as the effort rewards you. I will continue to appreciate and support the ILB.

Posted by Marcia Oddi on Monday, June 11, 2012
Posted to About the Indiana Law Blog

Ind. Courts - "Durham Faces Trial Over Fair Finance Co"

Bloomberg News has a backgrounder today. The long story begins:

Timothy S. Durham, a onetime political fundraiser and chief executive officer of National Lampoon Inc. (NLMP), faces trial on charges he and two other men defrauded investors at another company they controlled.

A jury was selected on June 8 and prosecutors are scheduled to deliver their opening statements today in federal court in Indianapolis.

Durham and two other men were indicted last year on allegations they cheated 5,000 investors in a $200 million scheme involving interest-bearing notes issued by Akron, Ohio- based Fair Finance Co., which they controlled.

The reporters are Andrew Harris and long-time Indianapolis reporter Howard Smulevitz.

See also this ILB entry from Sunday headed "No cellphones at Durham trial."

Posted by Marcia Oddi on Monday, June 11, 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, did you check the ILB a lot last week? Then please make the move to supporting the ILB, today! (See the end of this entry for info on one-time or occasional donations.)

From Sunday, June 9, 2012:

From Saturday, June 8, 2012:

From Friday evening, June 7th, 2012:

Posted by Marcia Oddi on Monday, June 11, 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 6/11/12):

Next week's oral arguments before the Supreme Court (week of 6/18/12):

Tuesday, June 19th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/11/12):

Tuesday, June 12th

Next week's oral arguments before the Court of Appeals (week of 6/18/12):

Tuesday, June 19th

Thursday, June 21st

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, June 11, 2012
Posted to Upcoming Oral Arguments

Sunday, June 10, 2012

Ind. Courts - "Nomination Forms Available for Journalist and Judge Excellence Awards"

This court news release from June 8, 2012 begins:

The Indiana Judges Association (IJA) is accepting nominations for the 2012 Commendation for Excellence in Public Information and Education. Each year the Association honors a journalist and judge who have helped inform the public about the work of the Indiana courts. The deadline for applications is Friday, July 6th.

There are two award categories, one for journalists and one for judges. The Community Relations Committee of the Indiana Judicial Conference selects the award recipients. Indiana Judges Association President, Marion County Judge Robyn Moberly, explained, “These awards are an opportunity for us to thank those judges and journalists who take extra steps to help the public understand the work of the courts.”

Journalist nominees are judged on breadth and depth of the effort, quality, ingenuity and public response. The committee is looking for television, newspaper, radio and Internet journalists or news organizations that have exhibited responsible reporting of Indiana courts. The committee is also looking for judges who have conducted programs, projects or sustained efforts to educate the public about the courts.

The Indiana Judges Association has given the awards since 1988.

In the event you were hoping to nominate The Indiana Law Blog or another similar blog for its work in helping "inform the public about the work of the Indiana courts," again this year per the stated criteria such efforts apparently are not eligible. The Journalist Award Nomination form states:
The Indiana Judges Association is accepting applications for television, newspaper, radio and Internet journalists that have made special contributions in responsible reporting of the Indiana courts. The award will be presented at the 2012 Law School for Journalists on July 20th in Indianapolis.

CRITERIA: Nominee must be an Indiana news reporter/photographer who during the past year has written, shot, or produced a story that educates the public about the work of the courts. Both individual journalists and news organizations will be considered.

Selection will be made by the Community Relations Committee of the Indiana Judicial Conference. Nominees will be judged on breadth and depth of the effort, quality, ingenuity and public response.

Posted by Marcia Oddi on Sunday, June 10, 2012
Posted to Indiana Courts

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

Updating this ILB entry from April 16, 2012, Niki Kelly of the Fort Wayne Journal Gazette reported June 5th:

INDIANAPOLIS – Administration officials, with input from legislators, have selected financial firm Deloitte to handle an audit of the Indiana Department of Revenue after uncovering more than $500 million in financial miscues since December.

“It was a consensus decision,” State Budget Director Adam Horst said.

New York-based Deloitte will first perform a risk assessment to determine the likely weaknesses in the system and what internal controls require focus. The cost of the assessment will be less than $250,000.

From there, the risk assessment will be used to guide the actual audit. Hourly rates have been quoted to the state, but the cost is unclear until the full scope of the audit is revealed through the risk analysis.

Horst hopes the audit is done this calendar year – and preferably months sooner. * * *

The committee approved Deloitte’s selection Monday even though it was unnecessary since the executive branch is entering into the contract.

Here, from The Briefing Room, an Indiana State Dems blog, are specific details of how the audit is to be conducted, based on the state’s Request for Information.

Posted by Marcia Oddi on Sunday, June 10, 2012
Posted to Indiana Government

Ind. Courts - "No cellphones at Durham trial"

This item appears in the IndyStar "Behind Closed Doors" column today:

Federal prosecutors will use Tim Durham's cellphone calls to support fraud charges against him during his ongoing trial, but ironically, cellphones will not be permitted in the courtroom. Neither will laptops. Or iPads.

U.S. District Court Judge Jane Magnus-Stinson signed an order Wednesday that prohibits cellphones and electronic devices in the courtroom.

The trial is open to the public, but those who want to watch will have to leave their mobile friends in a lockbox outside the courtroom.

Curious as to precisely what Judge Magnus-Stinson's order stated, the ILB looked it up. Here it is.

Posted by Marcia Oddi on Sunday, June 10, 2012
Posted to Ind Fed D.Ct. Decisions

Courts - "As governor, Mitt Romney backtracked on promised reforms in appointing judges"

That is the headline to a very long and interesting story on merit selection, by Jerry Markon and Alice Crites, published May 30th in the Washington Post. (Here is the all on one-page version.)

Posted by Marcia Oddi on Sunday, June 10, 2012
Posted to Courts in general

Saturday, June 09, 2012

Ind. Law & Decisions - "New Indiana law cuts off child support at 19"

Yesterday, June 8th, the Anderson Herald Bulletin carried this story by Maureen Hayden of CNHI. The story begins:

INDIANAPOLIS — A new state law that drops the cutoff age for child support in Indiana is raising questions about how the courts may interpret it.

On July 1, the age of emancipation in Indiana moves from 21 to 19, automatically terminating child support payments for almost anyone who has turned 19.

Family law experts predict a period of confusion as judges, lawyers and families figure out how to apply the new law to existing child support orders and agreements.

Drew Soshnick, past chair of the Indiana State Bar Association’s family law section, said the new law will likely trigger a wave of calls to attorneys and a rush of requests to judges to modify child support orders and agreements.

One area of possible contention: the law exempts support for the “educational needs” of a child over 19 but doesn’t spell out exactly what falls into that category.

“We expect a lot of discussion about ‘educational needs’ as people try to broaden that definition,” Soshnick said.

Another area ripe for debate: Does the new law cancel out existing child support agreements involving children over 19?

Melissa Avery, current chair of the state bar association’s family law section, said the law is written to apply retroactively. But she expects some debate on that issue from lawyers and their clients who may question whether the Legislature can unravel child support agreements that have been crafted or approved by the courts.

“There is some lack of clarity (in the law),” Avery said.

As it happens, also yesterday, June 8th, the Court of Appeals handed down a decision in the case of Tricia L. Sexton v. Travis Sexton (ILB summary here), holding that "the amended child-support statute does not apply retroactively such that obligors may be reimbursed for past support payments made for children beyond age nineteen."

Here is a brief story on yesterday's opinion, reported by Dan Carden of the NWI Times. Some quotes:

A state law that takes effect July 1 that knocks two years off the maximum age a parent must support his or her child does not apply retroactively, the Indiana Court of Appeals ruled Friday. * * *

Most Hoosier parents believe they can stop paying child support at age 18, according to the Indiana Prosecuting Attorneys Council. The difference between common practice and the law has led to a backlog of unpaid child support cases, subjecting parents to potential criminal penalties and reducing the state's share of federal funds to support low-income families.

At the appeals court, Travis Sexton, of Howard County, argued the change in law entitled him to a refund of child support payments he made while his daughter was between ages 19 and 21.

In a 3-0 decision, the appeals court ruled the Legislature deliberately set a July 1 effective date for the new law, did not intend for it to apply retroactively and Sexton is not entitled to a refund.

Posted by Marcia Oddi on Saturday, June 09, 2012
Posted to Ind. App.Ct. Decisions | Indiana Law

Courts - Unusual sanction by bankruptcy judge in a Fair Finance proceeding

From the order of Judge Shea-Stonum filed May 22, 2012:

At the commencement of the hearing the Court took appearances of people participating telephonically. The Court specifically asked whether everyone participating had “announced himself or herself.” Several people entered an appearance on the record. Luke Overmeyer did not. Toward the end of the conference call, the court again asked all telephonic participants to identify themselves. At that point, Luke Overmeyer, counsel for Textron, announced himself. Based on the colloquy that followed, the Court determined that Mr. Overmeyer had been participating telephonically from the outset of the hearing, but had failed to announce himself. The Court finds that Luke Overmeyer should have responded. In lieu of conducting a show cause hearing as to whether this failure rises to the level of contempt, the Court directs that to promote the highest level of professionalism, by not later than June 8, 2012, Luke Overmeyer shall file with the Court a ten (10) page essay explaining why professionalism would always require counsel to announce himself or herself at the outset of a telephonic hearing.
And here, dated June 8, 2012, is the 10-page "Essay discussing why professionalism requires counsel to announce himself or herself at the outset of a telephonic hearing as mandated in the Order Sanctioning Counsel (Doc. 960)" submitted by counsel.

Posted by Marcia Oddi on Saturday, June 09, 2012
Posted to Courts in general

Ind. Courts - More on "LaPorte prosecutor under investigation"

Updating this ILB entry from April 4, 2012, this story yesterday in the NWI Times, also by Stan Maddux, begins:

LAPORTE | A recommendation to discipline the LaPorte County prosecutor on allegations of forgery has been made to the Indiana Supreme Court.

Robert Szilagyi is accused of forging the signatures of his ex-wife and a notary during a property transfer stemming from his divorce.

In early April, Szilagyi publicly revealed that allegations of misconduct against him were under review by the Indiana Supreme Court Disciplinary Commission.

Supreme Court officials at that time would not confirm a complaint had been filed, saying they were prohibited from verifying complaints against any party until a review of the allegations was completed.

On April 12, Indiana Supreme Court Disciplinary Commission executive secretary G. Michael Witte recommended in writing that disciplinary action be taken against Szilagyi.

The Supreme Court released the complaint against Szilagyi, which contains allegations stemming from a property division in a divorce between Szilagyi and his ex-wife, Susan. The divorce was finalized in 2009.

The complaint alleges she received a quit claim deed to transfer the property solely to Szilagyi but signed it under her restored last name, Weinkauff, instead of her married name as reflected on the title.

She also failed to notarize the deed when she returned the document to Szilagyi's office.

The complaint alleges Szilagyi on the day of the closing discovered the mistakes and had his secretary, Donna Dadlow, draft a new deed.

Without contacting his ex-wife or his secretary, it's alleged that Szilagyi signed the name "Susan Szilagyi" on the new deed and used his secretary's notary stamp on the deed.

It's also alleged that Szilagyi then signed his secretary's name as notary on the deed without her permission or authority.

The complaint alleges Szilagyi submitted the new deed to the title company at closing.

Several months later, Dadlow received a notice of investigation from the Indiana secretary of state's office questioning the authenticity of the notarization and her status as notary.

Posted by Marcia Oddi on Saturday, June 09, 2012
Posted to Indiana Courts

Ind. Courts - "Businessman is accused of helping run a Ponzi scheme to defraud Fair Finance investors"

The trial of Indiana attorney Tim Durham began Friday in federal court with jury selection. Judge Jane Magnus-Stinson is presiding. (Earlier ILB entries)

Here is Carrie Ritchie's Indy Star report from yesterday.

Cory Schouten has a good, comprehensive story in the IBJ.

Posted by Marcia Oddi on Saturday, June 09, 2012
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides Wis. case re the TV show, South Park

In Brownmark Films, LLC v. Comedy Partners, a 12-page 6/7/2012 opinion, Circuit Judge Cudahy writes:

This is a case about how a court may dispose of a copyright infringement action based on the fair use affirmative defense while avoiding the burdens of discovery and trial. This case also poses the interesting question of whether the incorporation-byreference doctrine applies to audio-visual works. * * *

We agree with the district court’s well-reasoned and delightful opinion. For these reasons, the judgment of the district court is AFFIRMED.

The 7th Circuit opinion is itself also a good read.

Thanks to Michelle Olsen ‏ @AppellateDaily for this link to The Hollywood Reporter, headed "'South Park' Wins 'What What (in the Butt)' Legal Fight." (The 7th Circuit shortens this to "WWITB" in its opinion.)

[More] See "South Park’s ‘What What (In the Butt)’ Beats Infringement Claim," by David Kravets of WIRED for much more.

Posted by Marcia Oddi on Saturday, June 09, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Still more on: Floyd County Prosecutor Keith Henderson and possible serial murder case

Updating this ILB entry from May 23, 2012, yesterday Andrew Wolfson of the Louisville Courier-Journal reported:

Accused serial killer William Clyde Gibson III said in a letter to The Courier-Journal that he will plead guilty and accept the death penalty in the deaths of three southern Indiana women because "after all I am guilty."

Writing from the Floyd County Jail, where he is being held without bond on three counts of murder, Gibson said he has written to the prosecuting attorney and told him "I will pled (sic) guilty to the death penalty -- just to save some more heart ache." * * *

Defense lawyers not involved in the case say that if Gibson tries to plead guilty to a capital crime, his defense lawyers will vigorously contest his competency to enter that plea and his sanity at the time of the offenses.

Kent Wicker, a former federal prosecutor, said they will have an ethical obligation to ensure he is "fully competent to waive any important rights." * * *

Gibson, 54, wrote to the newspaper in response to a request for an interview, which he turned down.

His letter was received Friday and the envelope was marked in red ink with a notice saying "This stamp identifies this correspondence has been mailed" by an defendant "incarcerated in the Floyd County Jail."

In Kentucky, the state Supreme Court in 2010 upheld the guilty plea and death sentence of Shawn Windsor, who asked to be executed for killing his wife and son in 2003. His public defenders had pursued a mandatory appeal on his behalf, but the court said it found "no circumstances that would require reversal."

In Indiana, a Parke County man who asked to die for murdering his wife and two young stepdaughters was spared the death penalty in 2009 by a judge who instead sentenced him to three consecutive terms of life without parole.

Judge William Hughes said that life would be more painful and the court is not in the business of assisting suicide.

Indiana University Robert H. McKinney School of Law Professor Joel M. Schumm offers another decision, Robert A. Smith v. State of Indiana, an Oct. 23, 1997 opinion authored by Chief Justice Shepard:
Robert Smith pled guilty to the murder of Michael Wedmore under a plea bargain that called for the death sentence. Over Smith's objection, we have reviewed his case to assure that the sentence is a proper one. We now affirm.
The opinion, at Part IV, includes a discussion headed "Public Policy, the Forced Appointment of Special Counsel, and the Appropriateness of Smith's Sentence."

Posted by Marcia Oddi on Saturday, June 09, 2012
Posted to Indiana Courts

Environment - "Arkansas man accused of illegally selling live Asian carp in Michigan has been charged with 12 felony counts"

This AP story was in the Chesterton Tribune June 5th. A few quotes:

TRAVERSE CITY, Mich. (AP) — An Arkansas man accused of illegally selling live Asian carp in Michigan has been charged with 12 felony counts, officials said Tuesday.

The Michigan attorney general's office said David Shane Costner, 42, of Harrisburg, Ark., sold two grass carp last month in Midland to undercover officers from the state Department of Natural Resources. He had been driving around the southern part of the state selling the carp from store parking lots for use in ponds, where they eat nuisance plants, investigators said. * * *

Canadian border authorities in recent years have arrested several truckers hauling live Asian carp into Windsor, Ontario, after crossing the Ambassador Bridge at Detroit.

"Once destructive Asian carp enter our waterways, the damage cannot be undone," [Michigan Attorney General Bill Schuette] said. "We must remain vigilant and use every tool available to protect Michigan's tourism and sport-fishing industries from this dangerous threat."

Posted by Marcia Oddi on Saturday, June 09, 2012
Posted to Environment

Courts - "In-house research, much of it done online, is changing the way America's highest court works."

Thanks to How Appealing for pointing to this long item by Josh Rothman in the June 7th Boston Globe headed "Supreme Court Justices: Addicted to Google." It is really eye-opening. Some quotes:

Everyone knows that Google is changing the way college kids write their term papers. What's less obvious is that it's also changing the way that judges write their opinions -- even America's most august judges, those on the Supreme Court. In an absolutely fascinating article in the Virginia Law Review, "Confronting Supreme Court Fact Finding," Allison Orr Larsen, a law professor at William & Mary, shows just how prevalent online research is at the Supreme Court. "In-house research," she argues, much of it done online, is changing the way America's highest court works. At first blush, it seems like a good thing for judges to search out the facts on their own. But the change, Larsen argues, is not for the better. * * *

"All members of the Court do it," Larsen reports, "regardless of whether they are traditionally labeled liberal or conservative."

To a degree, it's all about style, since citations make an opinion feel more authoritative. But the facts the justices find also influence their decisions. Historical facts about the founders and the Constitution are particularly influential -- but so are more ordinary facts about, say, the number of fatalities which occur when a suspect flees from police in a vehicle, or about the number of juvenile offenders who go on to serve life sentences for non-homicide offenses. (In the latter case, Justice Kennedy cited a report he obtained independently, from the Bureau of Prisons; later, that report was revealed to be full of false information.) Today's Supreme Court opinions are often full of citations which the justices (or their clerks) have gathered themselves.

Here is the link to the 53-page law journal article by Alli Orr Larsen, College of William and Mary.

ILB: Re Indiana, see this ILB entry from March 22, 2012.

For much more on independent research by judges in Indiana, including discussion of Ind. Code of Judicial Conduct Rule 2.9(C), this ILB entry from July 4, 2009, and see the latter half of this ILB entry from Aug. 20, 2009

Posted by Marcia Oddi on Saturday, June 09, 2012
Posted to Courts in general

Friday, June 08, 2012

Ind. Decisions - 7th Circuit decides one Indiana case today

In Harper v. C.R. England Inc. (ND Ind., Cherry, MJ), a 33-page opinion, Circuit Judge Ripple writes:

Kenneth Harper brought this action in Indiana state court against his former employer, C.R. England, Inc. (“C.R. England”), alleging racial discrimination, harassment and retaliation in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. He also alleged that C.R. England had retaliated against him for having filed a workers’ compensation claim, in violation of Indiana law. C.R. England removed the case to the district court. The magistrate judge, sitting by consent of the parties, granted summary judgment in favor of C.R. England, and Mr. Harper timely appealed. He now asks that we review the district court’s determination only with respect to his retaliation claim. After examining the record, studying the appellate briefs and hearing the argument of counsel, we conclude that the district court correctly decided that there is no genuine issue of triable fact on the retaliation claim and that the defendant therefore is entitled to judgment as a matter of law. Accordingly, we affirm the judgment of the district court.

Posted by Marcia Oddi on Friday, June 08, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Michael A. Gargano, in his official capacity as Secretary of the Indiana Family and Social Services Administration, et al. v. Lee Alan Bryant Health Care Facilities, Inc., et al., an 18-page opinion that deals with the calculation of reimbursement rates paid by the RCAP (the Residential Care Assistance Program) to providers. The opinion by Judge Brown reverses and remands the trial court's ruling in favor of a health care facility.

In Tricia L. Sexton v. Travis Sexton , a 10-page opinion, Judge Vaidik writes:

Tricia Sexton (“Mother”) appeals the trial court’s order finding that her daughter, K.S., was emancipated. Mother argues that the trial court erred in finding that K.S. was outside the care or control of her parents and was self-supporting. Because it represents a significant and wide-reaching change in state law, we also address Father’s arguments regarding Public Law 111-2012, which will change the presumptive age for termination of child support from twenty-one to nineteen on July 1, 2012.

With respect to Mother’s claims, we conclude that K.S. indeed put herself outside the care or control of her parents and was self-supporting, and thus the trial court did not err in determining that she was emancipated. As to Father’s contentions, we hold that the amended child-support statute does not apply retroactively such that obligors may be reimbursed for past support payments made for children beyond age nineteen. We affirm. * * *

Here, the legislature did not indicate that the amended statute would apply retroactively. See Pub. L. No. 111–2012 (eff. July 1, 2012). [ILB - SEA 18] Nor is the change to the statute remedial; rather, it appears that the legislature simply intended to terminate parents’ support obligations at an earlier age than permitted by the previous version of the statute. For these reasons, we decline to apply the amended statute retroactively. [ILB emphasis]

NFP civil opinions today (1):

Kent A. Easley v. State of Indiana, Shelby County Prosecutor's Office, R. Kent Apsley, J. Brad Landwerlen, Shelby Co. Probation Dept.,, Deanna Holder, Shelby Co. Superior Ct One Clerk, et al. (NFP)

NFP criminal opinions today (4):

William A. Wiley v. State of Indiana (NFP)

Michael Kucholick v. State of Indiana (NFP)

Blake Clunie v. State of Indiana (NFP)

Betwel Birari v. State of Indiana

Posted by Marcia Oddi on Friday, June 08, 2012
Posted to Ind. App.Ct. Decisions

Indiana Courts - Report on the seminar: "Demystifying the Judicial Selection Process"

Yesterday afternoon I attended the 1.5 hour CLE on "Demystifying the Judicial Selection Process" put on by the ISBA. These are my notes.

Michele Cooley, Chair of the ISBA Women in Law Committee, introduced and moderated the session.

This was a very worthwhile event. All the presenters were very engaging and collegial, and as you will see below, had much information to impact to those considering applying to the Court of Appeals or Supreme Court in the future. I hope it will become an annual event. A copy of the agenda is available here.

(I also noticed the event was being videorecorded by the ISBA.)

Two former Judicial Nominating Commission (JNC) members, John Trimble, who was an attorney member elected by the state bar, and Christine Keck, who was a citizen member appointed by Gov. Daniels, discussed "The View from Inside the JNC." Both served 3-year terms and sat together on the JNC panel during 2010.

Trimble - What does JNC look for? Someone who is "judicial." This involves temperament, demeanor, bearing.

Keck - Intelligence, skill in their field, ability to express oneself, breadth of legal and life experience, collegiality, wisdom (meaning wise, not just intelligent, answers).

Keck stressed that your qualifications are in your application packet, there is no need to reemphasize them during your interview, it just cuts into your time to answer the members' questions.

Trimble - You get a sense in reading the application beforehand (and the members do thoroughly read each application) who will likely fall in the "no" pile and who will be in the "yes." But the interview could change that, either way.

Trimble urged applicants to do a mock interview. He said we ask the same basic questions over and over (ILB - especially in the 1st round). You can go online and find these questions, he said.

Trimble said that with regard to political party affiliation, the members of the JNC did not have this information with either of the 2010 openings. (ILB - that was the 2010 Supreme Court and Tax Court vacancies. This year the ILB has heard that some members of the JNC did have the primary voting records of the applicants.)

Hon. Jane Magnus-Stinson, SD Indiana federal court judge, was a former counsel to Gov. Bayh and spoke on the view from inside the Governor's office.

She said she learned the lesson about not going over your qualifications the hard way, "I droned on about my qualifications." Later, she said, the Chairman called and told her "Don't ever do that again."

She said one should also learn that average speech is about 170 word/minute and you should plan your presentation accordingly.

Magnus-Stinson said that as the Governor's counsel she knew the political party of every candidate. "It hasn't happened yet that a governor has appointed outside his party."

She said the application is a great map for you. You want to show that you are someone who has tried to continually grow within your profession, that you are involved, engaged, and have a good reputation.

Re letters of support, they should show what people in your community think of you - thoughtful letters explaining how they know you and your great experiences.

Magnus-Stinson said the Governor's office would communicate with its citizen JNC members during the process to make sure they heard whatever had been communicated to the Governor's office about the applicants.

If you are not political, can you make it, asked Magnus-Stinson. She said it can happen, but not often. She said political involvement at the highest level you can be involved in is important, helpful, but not mandatory. But, she added, people generally just don't apply if they are not of the Governor's party.

Re recommendations, Magnus-Stinson said figure out your "Kevin Bacon first degree of separation" and have that person support you -- on whom does the Governor rely on for advice -- do you have a connection to that person and can they recommend you? Bar leaders are also important supporters.

Kiply S. Drew, IU counsel who was a 2010 semi-finalist candidate for the Supreme Court, and Hon. Martha Wentworth, who was appointed Judge of the Indiana Tax Court in 2010, spoke on their perspectives in going through the process.

Drew - I was a nontraditional candidate in that I had been in the counsel's office at IU for the last 18 years. She said she had never thought of applying until "my dad told me to." She said she totally enjoyed the whole experience.

Wentworth - I worked in an accounting firm and had not practiced law in court for the last 13 years, although she had gone before administrative agencies. She said she was also nontraditional in that she was 62 when she applied, only 9 years younger than Judge Fisher, who was retiring. She had clerked for Judge Fisher earlier in her career.

Wentworth said she and Kip both really enjoyed the process. Both had thin applications, as neither had written briefs in years. She urged applicants to get a new picture, "one that looks like you." She related that she had kept active in the law and in the bar even while at the CPA firm, published articles, etc. She said she had a Republican voting record, but was never that active.

Drew - The idea of putting the application online blew me away. Knowing it will be online makes you look at it in a different way. Re "negotiating with your employer," she said her employer, the IU general counsel, was fine with it.

In general discussion, moderated by Michele Cooley:

Christine Keck of the 2010 JNC said that as a lay person on the JNC, "it was very important to me that I be well prepared and asked relevant questions."

Judge Wentworth said that she had felt an affinity to Ms. Keck during the interviews, as Ms. Keck was the only woman on the JNC at the time. Judge Magnus-Stinson added that it is very important for applicants to communicate with the lay members during the interviews, as well as the attorneys. "It is a balancing act." Ms. Keck added that a big mistake would be coming across as arrogant - the "you wouldn't understand ..." attitude, to the lay members.

Drew re preparation - you have an opportunity to look at the other applicants' applications, from the perspective, for instance of --- okay, I haven't been a judge, so what do I have to offer the JNC? Also, she related that her husband was a career clerk for one of the COAs judges, so she thought through her answer to the "for certain" question of whether that would be a conflict.

Wentworth urged young people to start keeping track of their career events early. She also said that she was recently at an event with tables of women lawyers, but when she asked for a show of hands on who might apply for the court, not one responded. She did not know if this meant they were afraid to admit interest in front of colleagues, or something else. She urged that women should be good mentors and teach that one didn't have to give up work/life balance to achieve success.

In the interviews, she said, be patient, listen, take time in answering, get there early, ask if I've answered your question, and then, lastly, shut up.

In answer to a question about her interest in the Sullivan vacancy, Ms. Drew said, "nothing in my first experience would prevent me from applying again."

In answer to a question about whether the JNC takes diversity into account, Trimble said that CJ Shepard's position was the JNC looked for the "most qualified," but that diversity was important to the JNC.

Judge Magnus-Stinson said Gov. Bayh considered diversity to be a qualification.

Q- Did you really look at people's grades? Ms. Keck said absolutely.

Re whether clerkships were important, attorney Trimble said yes. Keck said no, as a citizen member clerkship was low on her list because as a lay person she didn't really understand what it meant. Judge M-S said clerkship is a big deal in the federal system.

Re preparation for the court, Mr. Trimble said that he didn't consider Ms. Drew to have had a "nontraditional" background, and he said that Wentworth had been "as engaged in the law as I am."

Re content and number of letters of recommendation: Trimble - we want meaningful letters. He also noted that some of the applicants who hadn't made the second round for the 2010 Supreme Court vacancy had written letters of support for then-Judge David, which had impressed Trimble. He said good letters reveal character or wisdom.

Re commissioners meeting with candidates beforehand, there seemed to be no real consensus.

Participants reminded the viewers that the interviews are public. It was noted that some candidates brought their spouses and children to watch.

Re sensitive questions, Trimble said that if the JNC didn't ask a question it was often because we didn't want to embarrass the applicant (ILB - one candidate in 2010 for instance was in the process of a disciplinary proceeding), but that it might have been better if they had brought potential issues up themselves.

Q - does the JNC look at things such as there are three former prosecutors on the Supreme Court and maybe we should try to balance that? Trimble - we did look at that but collegiality was most important to us.

Q - Did the CJ set the tone? Trimble - (Shepard in 2010) set the tone but didn't influence the members in making the choices. Re deciding how many go to the second round, Trimble said the members rank all the applicants and set the line where there is consensus.

Q re geographical diversity - not that important.

Re who to name as contacts on your application, Magnus-Stinson said to do it strategically. Try if you can to select people who JNC members know and are likely to call, in the office down the hall from them, or a neighbor of a citizen member.

(ILB: Here are the materials from the seminar: the relevant provisions of the Indiana Constitution and statutes, a "judicial application checklist," sample interview questions and other resources of interest.)

Posted by Marcia Oddi on Friday, June 08, 2012
Posted to Indiana Courts | Vacancy #2 on Supreme Court 2012

Thursday, June 07, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)

For publication opinions today (2):

In A.R.M. v. State of Indiana, an 11-page opinion, Judge Najam writes:

A.R.M. appeals his adjudication as a delinquent child for committing child molesting, as a Class C felony when committed by an adult, and battery, as a Class B misdemeanor when committed by an adult. A.R.M. presents a single issue on appeal, namely, whether the juvenile court admitted a videotape of an interview with the victim contrary to the provisions of Indiana Code Section 35-37-46-6, the Protected Person Statute (“PPS”). We hold that the juvenile court did not err when it determined that the child victim’s videotaped statement to a forensic interviewer was reliable and that, on the facts presented, the child victim had testified at the fact-finding hearing, which was equivalent to the trial required by the PPS. We affirm. * * *

In sum, A.R.M. has not shown that the juvenile court abused its discretion when it determined that S.M.’s videotaped statement to the CASIE Center interviewer was reliable. And S.M. testified at the fact-finding hearing. The requirements under the PPS for admission of S.M.’s videotaped statement at the CASIE Center were satisfied. Therefore, A.R.M. has not shown that the trial court abused its discretion when it admitted S.M.’s videotaped statement under the PPS, and we affirm the adjudication that A.R.M. is a juvenile delinquent for having committed the offenses of child molesting, as a Class C felony, and battery, as a Class B misdemeanor.

In TDM Farms, Inc. of North Carolina and Dale Johnson v. Wilhoite Family Farm, LLC, a 23-page opinion, Judge Najam writes:
TDM Farms, Inc. of North Carolina and Dale Johnson (collectively, “TDM”) bring this interlocutory appeal from the trial court’s denial of their motion for summary judgment against Wilhoite Family Farm, LLC (“Wilhoite”). Wilhoite had filed suit against TDM alleging nuisance, negligence, and trespass after TDM intentionally introduced a highly contagious virus—the Porcine Reproductive and Respiratory Syndrome (“PRRS”)—to its hog farm, which then spread to Wilhoite’s neighboring hog farm and caused significant loss. On appeal, TDM contends that summary judgment is appropriate because Wilhoite’s claims are either preempted by the federal Virus-Serum Toxin Act (“the VSTA”), 21 U.S.C. §§ 151-159, or they are barred by Indiana’s Right to Farm Act, Ind. Code § 32-30-6-9.

We hold that Wilhoite’s claims are outside the scope of the VSTA and corresponding federal regulations. We also hold that the Right to Farm Act does not apply on these facts. Thus, we affirm the trial court’s denial of summary judgment. * * *

In sum, we hold that Wilhoite’s three claims are directed only against TDM’s alleged misuse of an otherwise lawful serum. As the trial court stated, those claims are “not really about the serum at all.” Appellant’s App. at 15. As such, those claims are outside the scope of the federal jurisdiction and are properly before the trial court. We also hold that Indiana’s Right to Farm Act does not apply on these facts between farming operations. Thus, we affirm the trial court’s denial of summary judgment. [ILB emphasis]

For background on this TDM Farms case, see this ILB entry from Feb. 20, 2011.

See also this June 7th post on the TDM Farms opinion from Masson's Blog.

NFP civil opinions today (1):

In the Matter of the Civil Commitment of: T.K. v. Community Hospital North (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Thursday, June 07, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending June 1, 2012

Apparently there were no transfer dispositions for the week ending Friday, June 1, 2012, as the list that normally would have been posted on Monday, June 4th has not yet appeared.

Posted by Marcia Oddi on Thursday, June 07, 2012
Posted to Indiana Transfer Lists

About this blog - More on: A letter to ILB readers

Dear ILB Readers

Updating this ILB entry from Tuesday, where I asked: "Tell me if you value the ILB's coverage of the court selection processes and its coverage in general, or if 10 years is long enough," nearly 90 of you have responded so far, which is amazing and gratifying to me.

All of the responses were very positive, many of you took the time to write at length. Thanks to all of you! I'm afraid I may not be able to respond to each of you individually, but I'm taking all your comments and suggestions to heart.

For instance, I learned that many of you rely on the ILB summaries each day of the Court of Appeals and other decisions. I'd always wondered if that service was useful and it appears that it is. Therefore, although the ILB will not be back in full force until Monday (I have CLEs to attend this afternoon and tomorrow), I will be posting the case summaries I've missed for this week. I've already added Tuesday's.

It isn't too late for you to weigh in! I'm going to go through all the responses this weekend and will try to put a summary or analysis together for next week. I'm not going to be using any names.
____________

Finally, several of you have asked if the ILB accepts donations. Fundraising certainly wasn't my intent in the Tuesday post, but yes, in addition to annual supporters, one-time or sporadic gifts in any amount are very much appreciated and you will remain anonymous. For details see the end of this ILB entry.

Posted by Marcia Oddi on Thursday, June 07, 2012
Posted to About the Indiana Law Blog

Wednesday, June 06, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In W.D., a minor by his parents R.D. and S.D., and R.D. and S.D., individually v. City of Nappanee , an 8-page opinion, Judge Mathias writes:

W.D., by his parents S.D. (“Mother”) and R.D. (“Father”), and Mother and Father, individually, filed a complaint in Elkhart Superior Court alleging that the City of Nappanee (“the City”) breached its duty of care to W.D., which proximately caused injuries suffered at the City’s pool. The City filed a motion for summary judgment and argued that it did not breach its duty of care to W.D. as a matter of law. The trial court granted the motion and W.D., Mother, and Father appeal the trial court’s entry of summary judgment in favor of the City and the resulting dismissal of their complaint. We affirm. * * *

Our court has previously stated that a lifeguard owes a duty to help imperiled
swimmers, but the lifeguard “cannot possibly be an absolute insurer of the safety of swimmers.” Plummer v. Bd. of Com’rs of St. Joseph County, 653 N.E.2d 519, 523 (Ind. Ct. App. 1995), trans. denied. The City’s undisputed designated evidence establishes that the lifeguards exercised ordinary and reasonable care under the circumstances, and therefore, they did not breach their duty to W.D. W.D. was briefly imperiled before the lifeguards realized that he needed assistance. The City’s lifeguards then quickly removed W.D. from the pool and saved his life.

Although our courts rarely determine whether a breach of duty occurred as a
matter of law, this case represents one of those rare exceptions. Because the record lacks any designated evidence of disputed factual questions that would preclude the entry of summary judgment in this case, we affirm the trial court’s entry of summary judgment in favor of the City and its dismissal of W.D.’s complaint.

In In the Matter of the Term. of the Parent-Child Rel. of: D.W., K.K., Ke.K., & L.W.; and J.K. v. The Indiana Dept. of Child Services , a 14-page opinion, Judge Riley writes:
Father raises one issue on appeal, which we restate as the following: Whether the trial court properly terminated his parental rights to his four children. * * *

In essence, Father argues that the requirements of I.C. § 31-35-2-4(b)(2)(B)(i) (emphasis added) are disjunctive; a trial court may find that either “[t]here [was] a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents [would] not be remedied,” and a finding of one is independent of a finding of the other. Because the trial court here found that the conditions that resulted in the children’s removal would not be remedied but did not find that the reasons for placement outside the home of the parents would not be remedied, Father asserts that the trial court erred in terminating his parental rights because he is not at fault for the children’s removal from the home. * * *

Father consistently failed to take advantage of services provided and ordered by the trial court and consistently failed to stay clean of drugs. Although Father testified that he has not used drugs in a month, this sobriety is, as the trial court stated, “tenuous” in light of his history. Accordingly, we determine that the trial court’s findings supported its conclusion that the conditions causing the children’s continued removal from Father’s home will not be remedied. As Father does not dispute any of the trial court’s other conclusions of law, we also find that the trial court did not err in terminating Father’s parental rights to his four minor children.

In Keith D. Jackson v. State of Indiana, a 12-page opinion, Judge Riley writes:
Appellant-Defendant, Keith Jackson (Jackson), appeals his sentence for possession of a firearm by a serious violent felon, Ind. Code § 35-47-4-5(c), and the trial court's revocation of his probation and imposition of the balance of his suspended sentence in a separate, earlier Cause. We reverse and remand. * * *

Based on the foregoing, we conclude that (1) the trial court abused its discretion by ordering Jackson to serve community service contrary to his plea agreement; (2) the trial court abused its discretion by ordering Jackson to pay public defender fees; and (3) the trial court abused its discretion by ordering Jackson to serve his suspended sentence as a result of his probation violation.

NFP civil opinions today (2):

Mark Van Eaton and Cynthia Van Eaton Vallimont v. German American Bancorp (NFP)

Faye E. Warfield v. Review Board of the Indiana Department of Workforce Development and IDWD U.I. Claims Adjudication (NFP)

NFP criminal opinions today (7):

Robert Johnson, Jr. v. State of Indiana (NFP)

Teri Woenkhaus v. David Woenkhaus (NFP)

Eric Liscomb v. State of Indiana (NFP)

Robert Johnson, Jr. v. State of Indiana (NFP)

M. Loren Fugate v. State of Indiana (NFP)

Frank E. Puzynski v. State of Indiana (NFP)

Jermaine Young v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 06, 2012
Posted to Ind. App.Ct. Decisions

Tuesday, June 05, 2012

About this blog - A letter to ILB readers

Dear ILB Readers

As I noted a few weeks ago, the ILB is well into its 10th year, the ILB's first entry was on March 16, 2003. I have immensely enjoyed this time-consuming project and looked forward each morning to my first post of the day. But today I no longer feel this way.

The ILB put a great deal of effort over the past month into covering the Court of Appeals selection process. It has turned out to be much more difficult than I could have imagined. Roadblocks appeared that have not appeared in past Supreme Court and Tax Court processes.

For instance, the applications of candidates were not posted online by the Court as they have been in the past. There has been no explanation. On behalf of all of you who read the blog or follow the Court the ILB asked: "Now that CJ Shepard is gone, is there no more openness and transparency?"

After the first round of interviews was over, the Court media office announced that paper copies all the applications were being made available in the Supreme Court library and that one could make copies for $0.25/page...

In other words, if you lived in Gary or Evansville of Fort Wayne and wished to see an application, rather than viewing it online as in the past, you could/can now drive to Indianapolis and pay for a paper copy.

I have no idea if this policy of reduced access is to be the future norm.

Most applications are 20-30 pages long. Making copies of the set of 14 candidates this time would total around $100.00 and would be cost-prohibitive for the ILB, which is funded solely by contributions from supporters and from my own retirement income. And remember that for the 2010 Supreme Court opening there were 34 applications.

Two other things that are particularly irking me today:

1. The only coverage of the Court of Appeals selection process during the day yesterday was that of the ILB, which posted seven separate entries. Many of you were reading, the stats show 6,824 pages views yesterday.

Imagine if the ILB has not followed the COA process. You would have not seen Cara Wieneke's summaries of the grades and ages of the candidates, you would not have been able to review the full applications of those semifinalists who agreed to allow the ILB to post them. You would not have been able to read the reports of how each interview went, what questions were asked, by whom, and what responses were offered.

Rather, you would have seen only the report you can find in today's Indianapolis Star, a four-paragraph summary of an Indiana Lawyer summary of a brief press release from the Court press office.

2. Finally, I've learned that a few people are criticizing the ILB for having "an agenda."

Of course I do and the ILB does! It is not an ideological agenda, but a philosophical agenda that revolves around opening records and allowing more transparency into judicial (and all governmental) processes. It includes making actual documents available to readers so that they may form opinions for themselves.

The ILB had urged for years, for example, that not-for-publication decisions be posted online. Some may not remember that this was not always the case. Other "agendas" include advocating the availability of briefs and motions on-line, and getting the on-line docket working the way that was promised for the end of last year.

And yes, my agenda includes urging that women be appointed to the Supreme Court. It is an agenda I am proud of.

Readers, I'd like to hear from you. From all of you. Tell me if you value the ILB's coverage of the court selection processes and its coverage in general, or if 10 years is long enough. I may post your responses, but I won't use your name unless you give advance permission in your note. And I won't read unsigned emails. Write me here.

Posted by Marcia Oddi on Tuesday, June 05, 2012
Posted to About the Indiana Law Blog

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Kevin C. O'Connell v. State of Indiana , an 18-page, 2-1 opinion, Judge Mathias writes:

Kevin C. O’Connell (“O’Connell”) was convicted in Delaware Circuit Court of Class C felony attempted escape, Class B misdemeanor disorderly conduct, and Class B misdemeanor public intoxication. O’Connell appeals and argues that the trial court abused its discretion when it refused O’Connell’s tendered jury instructions that inserted the word “voluntary” into the elements of the charged offenses. Concluding that the substance of O’Connell’s tendered instructions were covered by other instructions given by the trial court, we affirm. * * *

FRIEDLANDER, J., concurs.
RILEY, J., dissents with opinion. [which begins, at p. 13 of 18] I respectfully disagree with the majority’s conclusion that the trial court’s tendered jury instructions as a whole covered the substance of O’Connell’s proposed instructions.

In James Ripps v. State of Indiana, a 10-page opinion, Chief Judge Robb writes:
James Ripps pleaded guilty to child molesting as a Class C felony in March 2009. Ripps was sentenced to eight years, six years and three hundred days of which were suspended to probation. In 2011, the State filed a probation revocation petition, alleging Ripps violated the terms of his probation by residing within one-thousand feet of a youth program center and failing to inform all people living at his residence of his sexual conviction. Ripps admitted the violations and the trial court revoked his probation and ordered him to serve the remaining portion of his sentence in prison. Ripps raises one issue for our review, which we restate as whether the trial court abused its discretion by revoking Ripps’s probation and ordering him to serve the entire suspended portion of his sentence for violating terms of his probation. Concluding the trial court did abuse its discretion by revoking Ripps’s probation and ordering him to serve the remainder of his sentence in prison, we reverse.
NFP civil opinions today (3):

Milan D. Zavodny, Trustee of the Milan D. Zavodny Trust v. Evelyn Ann Pavillonis Trust U/W/A, Dated 18 March 1997 (NFP)

Performance Matters Associates and Conseco Marketing, LLC v. Patrick A. Fortune (NFP)

In the Matter of the Paternity of N.M.E., Minor Child; J.E.E., Father v. J.B., Mother (NFP)

NFP criminal opinions today (2):

Bennie Chamberlain v. State of Indiana (NFP)

Mark Shepard v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 05, 2012
Posted to Ind. App.Ct. Decisions

Monday, June 04, 2012

Vacancy on COA 2012 - The 3 names to be forwarded to Governor Daniels

The three names the Judicial Nominating Commission will be forwarding to Governor Daniels are: Altice, McMath, Pyle.

Many thanks to Cara Wieneke, who cleared her schedule so she could report on the interviews! I have seen no other media reports all day.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Vacancy on COA 2012

Ind. Decisions - More on: SCOTUS affirms Ind. Supreme Court in Armour (Barrett Law case)

Updating this entry and this entry today, the WSJ Law Blog looks at the split among the more conservative members of the SCOTUS in the Armour decision in an entry headed "Roberts Is Outraged at a Tax; Thomas Isn’t."

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Indiana Decisions

Vacancy on COA 2012 - Round Two, Interview #5: Joel M. Schumm

This is Attorney Cara Wieneke's report on the fifth and final interview (of 5) of Round 2

Following this interview, the JNC will deliberate in executive session, beginning at 3:30 PM, and then reconvene in public session to announce results.

Joel M. Schumm, Indianapolis

Current position: A clinical professor at Indiana University's Robert H. McKinney School of Law
Application: Here
Photo: Here
Age: 41
Law school/grades/Class rank: IU-McKinney / 3.55 / Magna cum laude-Top 10%
1st Interview: Here
Second interview:

When asked about improvements to the COA, Mr. Schumm noted that he would focus on two changes he could implement in his chambers. First, he would rely more on term law clerks rather than career clerks. He enjoyed his time as a clerk and believes that clerks leaving and sharing their knowledge in the field is very rewarding. So he would hire sone term clerks while keeping a career clerk.

Second, he would grant more oral arguments. He recognized the fewer arguments in the COA is a function of the caseload, but he believes oral arguments have tremendous value, so he would try to grant more of those, particularly if lawyers asked for them.

Ms. Kitchell asked why he took great lengths to challenge his taillight ticket. Mr. Schumm noted a comment his mother made to him as the motivation for challenging something he did not feel was right. And he asked for a jury trial because he believes in the jury trial system. But he noted the tremendous amount of time it took regarding whether he would do it again.

Mr. Winingham asked for more clarification. Mr. Schumm's stated that even though he did not realize the time it would take, he felt at the time it was the right thing to do. But he would rather spend his time today helping other people with their legal issues.

Ms. Northenor asked why he would like to move from teaching to the COA. Mr. Schumm loves teaching and working at the law school, but he believes you can teach in many different contexts. Plus, he believes he would still have opportunities to teach as a judge.

When asked by the Chief Justice about whether panels can disregard other precedent, Mr. Schumm stated that there can be times when change is needed, but there is a way you can suggest the Supreme Court revisit the issue. The danger with the COA panels always following their own precedent, the precedent could be wrong. Again, there is a way to be able to suggest that the Supreme Court decide the issue.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Vacancy on COA 2012

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

Updating this ILB entry from May 30th, the ILB has already begun a new category for this new vacancy.

Last evening Eric Bradner of the Evansville Courier & Press posted this story headed "Wanted: 108th Hoosier to serve state Supreme Court."

The story covers all the bases, including:

Like the first two appointments, there is likely to be pressure on Daniels to appoint a woman in a state that has seen just one female justice in its history.

During both of his first two appointments, one woman has been among the final three names the Indiana Judicial Nominating Commission has sent the governor. However, he said gender could only be a tiebreaker after their qualifications were considered, and did not select either of those women.

The story also mentions the 1.5 hour CLE this Thursday on "Demystifying the Judicial Selection Process." The ILB plans to attend.

At least one applicant for the 2010 Supreme Court vacancy has announced that she is trying again. Rebecca S. Green reported in the June 2nd Fort Wayne Journal Gazette in a story that begins:

FORT WAYNE – Allen Superior Court Judge Fran Gull is hoping to be one of Indiana’s next Supreme Court justices.

It has been a goal she has had for a while, and with the pending departure of Justice Frank Sullivan Jr., Gull saw an opportunity to put herself in contention. Sullivan is leaving to teach at Indiana University this fall.

With the court seeing a lot of turnover in recent months, Gull saw the window of opportunity to pursue this dream closing slightly.

“I want to be a Supreme Court justice and if I don’t do it now, then I won’t have very many other opportunities,” said Gull, who has served as Allen Superior Court judge since 1997.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy on COA 2012 - Round Two, Interview #4: Hon. Rudolph R. Pyle III

This is Attorney Cara Wieneke's report on the fourth interview (of 5) of Round 2

Hon. Rudolph R. Pyle III, Anderson

Current position: Madison Circuit Judge
Application: Here
Photo: Here
Age: 42
Law school/grades/Class rank: IU-Mauer / 2.76 / ---
1st Interview: Here
Second interview:

Regarding changes he would like to see at the COA, Judge Pyle noted that it operates very well already as it is. He would take some time as a new judge to learn the system before suggesting changes. He did mention that he would like to speed up the pre-briefing process through the use of technology. He would also like to further develop the role the motions panel plays.

Chief Justice Dickson asked whether he was technologically-proficient. Judge Pyle mentioned that he added wireless access to his courtroom, a 50-inch flat panel that can connect with his computer to display things in court, and computers at the tables for attorney use. Judge Pyle also expressed an interest in getting involved with JTAC as an appellate judge.

Ms. Northenor asked why Judge Pyle wanted to make the change to the COA. Judge Pyle noted he would miss the interaction with the attorneys and with overseeing jury trials. But he loved his work as a clerk on the COA, and he is willing to give up the things he loves as a trial judge to work on the COA.

Chief Justice Dickson asked how he felt about the digital-video court reporting project currently being undertaken. Judge Pyle liked the idea but said it would depend on the number of cameras and who they were filming in the courtroom. He also noted a concern with the storage of the data electronically. And he indicated that he can read a transcript quicker than he could watch the video. Will that slow the process down?

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Vacancy on COA 2012

Courts - "Judges Should Write Their Own Opinions"

That is the headline to a NYT op-ed contribution today, written by William Domnarski. Some quotes:

THERE is a crisis in the federal appellate judiciary. No, I’m not referring to the high number of judicial vacancies or overloaded case dockets — though those are real problems. The crisis I have in mind rarely is discussed because it raises too many embarrassing questions. I’m talking about the longstanding and well-established practice of having law clerks ghostwrite judges’ legal opinions. We have become too comfortable with the troubling idea that judging does not require that judges do their own work. * * *

An informal review of federal appellate court opinions over the past five years suggests that of the more than 150 active judges, only a tiny number almost always write their own opinions in full, among them Frank H. Easterbrook, Richard A. Posner and Diane P. Wood, of the United States Court of Appeals for the Seventh Circuit, and Michael Boudin, of the First Circuit. A few others evidently write a fair percentage of their opinions from start to finish. Another relatively small group adds stylistic flair like dramatic introductions or figurative language. The former appellate judge Abner J. Mikva has said that when he served on the District of Columbia Circuit, he reserved for himself the opening paragraph of his opinions. * * *

Younger members of the judiciary need to take a hard look at themselves and ask how what they are doing stacks up against the known examples of judging at its highest level — not just Judge Posner and his contemporaries who write, but also gifted writers among judges of earlier eras like Learned Hand and Oliver Wendell Holmes Jr. The next generation will need to accept the opportunities and challenges of appellate judging and dare to do all the work that befits a judge.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Courts in general

Vacancy on COA 2012 - Round Two, Interview #3: Abigail Lawlis Kuzma

This is Attorney Cara Wieneke's report on the third interview (of 5) of Round 2

Following this interview, the JNC will break and reconvene at 2:15 PM with the final two interviews.

Abigail Lawlis Kuzma, Indianapolis

Current position: An attorney in the Indiana attorney general's office
Application: Not currently available
Photo: Not currently available
Age: 55
Law school/grades/Class rank: IU-Mauer / 2.7 / Top 34%
1st Interview: Here
Second interview:

When asked what improvements Ms. Kuzma would make to the COA, she stated that she would like to see is greater access to justice. She believes the pro se appeals are very important, and she would like to see a pro bono panel created similar to what has been created in other courts. Encouraging the panel could be accomplished by getting the larger firms involved and by recognizing through awards the work that lawyers do through the panel.

When asked about the importance of precedent between the panels of the COA, Ms. Kuzma indicated that she leans more toward judicial restraint than judicial activism, and making new law should be undertaken with caution.

Chief Justice Dickson asked her about her technological proficiency. Ms. Kuzma admitted she is not the most tech-savvy, but she uses it frequently, although she indicated that she was intrigued by the question of whether some technology makes us more efficient. She used the example of a person emailing during a meeting and questioned whether they were really listening during the meeting.

Mr. McDonald asked what role the COA should have in creating common law. Ms. Kuzma stated that the judiciary's role should be to resist making law. So the Court should look to whatever precedent it had and make the decision as narrow as possible.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Vacancy on COA 2012

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

R. Bruce Wallace v. Alliance Environmental, Inc. and Ruth Brown (NFP)

KMC Real Estate Investors, LLC, George L. Alcorn, David Berry, David Britt, Abdul G. Buridi, Jeffrey Campbell, Keith Carter, et al. v. RL BB Financial, LLC (NFP)

Alfonso Menchaca v. Elias Terrazas (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisons - Tax Court issues one today

In Fresenius USA Marketing, Inc. v. Ind. Dept. of State Revenue, a 9-page opinion, Judge Wentworth writes:

Fresenius USA Marketing, Inc. has appealed the Indiana Department of State Revenue’s final determination denying its claim for refund of gross retail (sales) and use tax collected on its sales of dialysis equipment and remitted to the Department between January 1, 2004 and October 31, 2007 (the period at issue). The matter is currently before the Court on the Department’s motion to dismiss, which the Court denies. * * *

In its motion, the Department provides three alternative reasons for the dismissal of Fresenius’s appeal:

I. The Court lacks subject matter jurisdiction over Fresenius’s appeal and the case must therefore be dismissed under Indiana Trial Rule 12(B)(1);
II. Fresenius lacks standing to bring its appeal and the case must therefore be dismissed under Indiana Trial Rule 12(B)(2)2; and
III. Fresenius has failed to certify its appeal as a class action lawsuit and the case must therefore be dismissed under Indiana Trial Rule 12(B)(6). * * *

For the foregoing reasons, the Department’s motion to dismiss is DENIED. The Court will schedule the matter for a case management conference in a separate order.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Ind. Tax Ct. Decisions

Vacancy on COA 2012 - Round Two, Interview #2: Hon. Robert R. Altice, Jr.

This is Attorney Cara Wieneke's report on the second interview (of 5) of Round 2

Hon. Robert R. Altice, Jr., Marion Superior Court, Criminal Division 2

Current position: Marion Superior Court Judge
Application: COA application not obtained, but here is the 2012 Supreme Court application
Photo: Here, from 2012 Supreme Court application
Age: 51
Law school/grades/Class rank: UMKC / 2.731 / ---
1st Interview: Here
Second interview:

When asked what improvements he would like to see on the COA, Judge Altice indicated the he would like to see more oral arguments because he believes the judges would gain more perspective from the parties on their position, and the Appeals on Wheels program gives the public an opportunity to observe the judiciary.

When asked by Chief Justice Dickson whether he would enjoy working in solitude, Judge Altice admitted it would be a difficult transition. But he would enjoy the collaboration with the other COA judges, and he would remain active in Bar and other activities.

Mr. Winingham commented that the Judge seems to try more cases than most, and Judge Altice agreed. He joked that he has been accused of keeping a "rocket docket."

Judge Altice thanked the Committee in his closing comments and noted that this is his 4th time appearing before the members.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Round Two, Interview #1: Patricia Caress McMath

The interviews of the five semifinalists for upcoming vacancy on the Court of Appeals commenced at 12:30 PM. Each interview is 30 minutes long. Commissioner McCashland is not present.

This is Attorney Cara Wieneke's report on the first interview (of 5) of Round 2

Patricia Caress McMath, Indianapolis

Current position: An appellate attorney in the Marion County Public Defender Agency
Application: Here
Photo: Here, from 2012 Supreme Court application Age: 50
Law school/grades/Class rank: IU-Mauer / 2.917 / ---
1st Interview: Here
Second interview:

Each semifinalist was asked what changes they would like to see to the COA.

Ms. McMath made three suggestions. First, she would like to see development of a pro bono panel in order to make the Court more accessible. Second, she would like to continue the move toward electronic filing. Finally, she would like to see a process created that would provide a "quality" check of the work that the clerks do.

When asked by Chief Justice Dickson whether she enjoys working in solitude or in a group, Ms. McMath enjoys both but thinks her time working for the COA was the ideal job because she loved the quiet, contemplative nature of the job.

Finally, Ms. Kitchell asked her about her greatest professional accomplishment. Ms. McMath said her service as the Chair of the Young Lawyers Division of the Bar Association was her greatest accomplishment because she really loved her Bar Association activities.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Vacancy on COA 2012

Ind. Decisions - "Supreme Court sides with city in sewer payment case"

Here is Maureen Groppe's (Gannett Washington Bureau) completed story on the Armour decision for USAToday.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Low natural gas price provides challenge for synthetic fuel plants"

Following on a long list of earlier ILB entries on the Rockport coal gasification project, Eric Brader had a long story on the project in the Sunday Evansville Courier & Press. The story begins:

INDIANAPOLIS — As three Illinois coal-gasification proposals fight to stay alive, both the developers of a similar project in Rockport, Ind. and their opponents say their positions are bolstered by the neighboring state's experiences.

At this stage, all that's clear is that Indiana's Rockport project is well ahead of the three in Illinois — including one by the same developers, Leucadia National Corp., on the south side of Chicago — in terms of nailing down financing.

Gov. Mitch Daniels' Indiana Finance Authority inked a 30-year contract to buy the Rockport plant's substitute natural gas at a fixed, long-term rate and then resell it, having that contract's prices make up 17 percent of Hoosier ratepayers' bills.

In Illinois, the legislature and Gov. Pat Quinn decided the state should not act as such a middleman, but applied pressure on utilities to purchase the synthetic gas those plants would produce by giving them the choice between doing so and facing rate reviews every two years.

It's a difference that once appeared cosmetic, but amid a shale gas boom has lowered natural gas futures prices and led two major utilities to surprise observers in Illinois and opt for the rate reviews instead — a move that has doomed one plant and left another on life support.

Opponents of the Rockport plant — chiefly, Evansville-based Vectren Corp., which is engaged in a legal battle against the plant that is now in the Indiana Court of Appeals — said the Illinois slowdown is another reason for Indiana to reconsider.

From the end of the story:
[Bill Rosenberg, Leucadia's lead developer in Indiana] said part of the Rockport plant's developers' deal with the Indiana Finance Authority involved guaranteeing that over the 30-year life of the contract, ratepayers would save at least $100 million.

He said a guarantee of savings — and the fact that the deal is structured in a way that allows developers to collect more money if its prices are below the market rate — gives his team strong incentive to make sure the plant's rates are a good deal over the long haul.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Indiana Government

Ind. Law - "Don’t expect much from degree from unaccredited Indiana Tech law school"

That is the headline to a long letter in the Sunday Fort Wayne Journal Gazette that begins:

Every time I drive by an Indiana Tech billboard touting its new law school, I feel sick to my stomach. There are already four law schools in Indiana, all within three hours of Fort Wayne with at least two ranked in the top 100. Do we really need an unaccredited law school in Fort Wayne? Given the current outlook in the legal profession, I think no.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Indiana Law

Ind. Courts - "St. Joe County tax funds to pay for new courtrooms"

Eric Blasko of the South Bend Tribune reports today:

SOUTH BEND — St. Joseph County plans to spend $8.1 million on capital improvements, including new felony courtrooms, bond payments, police radios and other items as part of an annual spending bill now under consideration by the County Council.

Introduced last month by the Board of Commissioners, the bill, which passed out of committee with a unanimous favorable recommendation, represents the county's annual appropriation of county economic development income tax, or CEDIT, money. * * *

The bill, which will be considered by the County Council at its meeting June 12, appropriates $1.5 million to renovate parts of the first and second floor of the County-City Building, formerly the county jail, into four new, ADA-compliant felony courtrooms.

The new courtrooms, to be used by the county's four felony judges — Jane Woodward Miller, Jerome Frese, Roland Chamblee Jr. and John Marnocha — will free up space in the 1896 Courthouse, making it possible to schedule more civil jury trials there, Chief Superior Court Judge Michael Scopelitis said.

"The civil judges in this building (the 1896 Courthouse) for almost 20 years have had to share courtrooms," Scopelitis said. "David Chapleau, Margot Reagan and myself share one courtroom. So every six weeks, each of us gets two weeks in that courtroom to hold jury trials, which really makes scheduling very, very difficult.

The additional space will also allow the court to take better advantage of the services of its senior judges, Scopelitis said, and to petition the state for additional magistrates to handle the abundance of small claims and traffic and misdemeanor cases in the county.

"Our magistrates are so overworked," he said, noting that the court's two magistrates — Richard McCormick and Brian Steinke — work an equivalent of 100 weeks each year, according to weighted caseload measures calculated by the state.

If all goes to plan, work on the new courtrooms, each of which would include a jury box, a jury room and judge's chambers, could begin as soon as next month, Commissioner Andy Kostielney, R-District 1, said.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Indiana Courts

Ind. Decisions - SCOTUS affirms Ind. Supreme Court in Armour (Barrett Law case)

See the opinion here.

Here is a long list of earlier ILB entries. This entry from Feb. 29, 2012 includes background, this one from Feb. 24th includes links to documents. This SCOTUSblog page contains ALL documents.

[More] The vote is 6-3. Justice BREYER wrote the opinion for the majority. ROBERTS, C.J., filed a dissenting opinion, in which SCALIA and ALITO, JJ., joined. The majority opinion concludes:

Here, the City followed state law by apportioning the cost of its Barrett Law projects equally. State law saysnothing about forgiveness, how to design a forgivenes sprogram, or whether or when rational distinctions in doing so are permitted. To adopt petitioners’ view would risk transforming ordinary violations of ordinary state tax law into violations of the Federal Constitution.

For these reasons, we conclude that the City has notviolated the Federal Equal Protection Clause. And the Indiana Supreme Court’s similar determination is Affirmed.

The dissenting opinion concludes:
Indiana law promised neighboring homeowners that they would be treated equally when it came to paying for sewer hookups. The City then ended up charging some homeowners 30 times what it charged their neighbors for the same hook-ups. The equal protection violation is plain. I would accordingly reverse the decision of the Indiana Supreme Court, and respectfully dissent from the Court’s decision to do otherwise.
[Still more] Here is a brief IndyStar story. And a brief AP story.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Indiana Decisions

Ind. Courts - "Missing master key may mean Miami County courthouse changes"

WISHTV 8 had a brief report last evening, at worst every door in the courthouse may need to be rekeyed.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Indiana Courts

Ind. Decisions - "A legal tool that shut down an Indiana puppy mill likely won't be used again"

The ILB has had a long list of entries on the case of Indiana Department of State Revenue v. Virginia Garwood, et al.

As I wrote in this comprehensive May 20th entry, "The traditional press has not picked up on this ruling." Dan Carden of the NWI Times is the exception, he has had several stories in the past, which are cited in the above list of ILB entries.

In this entry from May 11th, I questioned a NWI Times story sentence: "A tool routinely used to shut down large dog breeding operations, sometimes called puppy mills, was scrutinized Thursday by the Indiana Supreme Court." However, in looking back at past entries (see this ILB entry from Dec. 25, 2010), it turns out that the jeopardy tax assessment process has been carried out at least three times by the AG's office - against breeders in Bloomfield, Cloverdale, and Mauckport (this last is the Garwood case).

Here is Carden's most recent NWI Times story, from June 2nd, headed "Puppy mill foes stymied by Indiana Supreme Court." A few quotes:

INDIANAPOLIS | A legal tool that shut down an Indiana puppy mill likely won't be used again after the Indiana Supreme Court let stand a Tax Court ruling that found the move exceeded state authority. * * *

The Indiana Tax Court ruled in August that the state exceeded its authority by using jeopardy assessments, which are intended to stop a person owing taxes from concealing property or fleeing the state. That the dogs were sold for far less than their value shows the state was not interested in collecting tax revenue but instead in shutting down a socially undesirable activity, Tax Court Judge Martha Wentworth said.

The five-member Supreme Court heard oral arguments in the case May 10. Eight days later, and without comment, the state's high court rescinded its review and restored the Tax Court ruling.

The Supreme Court's action does not prohibit future state use of jeopardy tax assessments. However, their value as a tool to close puppy mills is likely diminished even though the court's order is not precedent-setting. * * *

Attorney general's spokesman Bryan Corbin said the Garwood case wasn't about puppy mills but unpaid taxes. He said Indiana will continue to use every tool at its disposal to collect tax money it's owed.

"The state will not tolerate businesses that gain an unfair economic advantage over their competitors by willfully failing to pay their taxes," Corbin said.

In a separate criminal case, the Garwoods pleaded guilty to failure to collect sales taxes.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Ind. Sup.Ct. Decisions | Ind. Tax Ct. Decisions

Law - "Lawyer Howard Bashman's blog is a must-read for appellate law junkies"

The law blog that was the inspiration for the ILB, How Appealing by Howard Bashman, turned 10 this year. (The ILB is now well over 9 years old.)

Tony Mauro wrote this lengthy article (you may have to register) about How Appealing for the May 9th National Law Journal. It begins:

Appellate practitioner Howard Bashman was largely unknown outside Philadelphia when he decided to take the plunge into law blogging in May 2002.

Twenty million page views and 10 years later, his blog How Appealing has made Bashman something of a nationwide rock star in the usually staid field of appellate law. And he has reached this status without resorting to gossip, name-calling, Twitter feeds, podcasts or anything close to eye-catching graphics.

Bashman offers mainly straightforward links to appellate opinions and to media coverage thereof – though his dry sense of humor, his enthusiasm for all things appellate, and his love of minor league baseball often peek through. Two other major law blogs, Volokh Conspiracy and SCOTUSblog, were launched the same year, but of the three, only How Appealing remains the handiwork of a single practicing lawyer.

The entire article is a must read, IMHO, but the section near the end is of general interest:
Question: From your experience viewing the sites of dozens of appellate courts, what would you say they need to do to improve their delivery of information to the public and to the legal community?

Bashman: My favorite appellate court web sites are those that make their rulings readily and freely available, and that also provide easy, free access to oral argument recordings. It is also a plus when the courts provide a brief summary of their rulings. At one point in the not too distant past, the 7th Circuit's web site provided free online access to appellate court docket entries and to the briefs and appendices filed on appeal. Eventually, however, those materials ended up behind a PACER pay wall. The place where most attention needs to be focused, however, is at the federal district court (trial court) level, where the statutorily mandated free access to federal district court rulings tends to remain an unfulfilled aspiration for those members of the public who do not maintain a PACER account. My point is that access to federal district court opinions should not require a PACER account, the same way that access to federal intermediate appellate court opinions does not require a PACER account.

Online access to appellate oral argument calendars, disclosing which judges are assigned to hear which cases, is also useful, as are lists of the cases that are pending before federal appellate courts en banc, together with descriptions of the issues and the en banc-related briefing.

In my opinion, at present, the most useful federal intermediate appellate court web site belongs to the 9th Circuit, although the 7th and 8th Circuits are not very far behind. At the state court level, my favorite web site belongs to the Supreme Court of Ohio, which does a fine job of making a vast amount of information readily available.

Here is the Supreme Court of Ohio website, take a look.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to General Law Related

Ind. Decisions - "David Camm's third trial set for Aug. 5, 2013"

From Harold J Adams' of the Louisville Courier Journal story of June 1st:

The third trial of David Camm, twice convicted of killing his wife and two children, only to have both convictions overturned on appeal, has been scheduled for Aug. 5, 2013.

The former Indiana state trooper has asked a judge to let him go free until then. Special Prosecutor Stanley Levco said Friday he will oppose the request made by Camm’s defense team.

“I don’t think he’s entitled to it,” Levco said. * * *

Levco said he and Camm’s lawyers have also been talking about making changes to the judge’s original solution to the problem of getting a jury that has not been overly exposed to publicity about the case.

Spencer Circuit Judge Jonathan Dartt initially ordered that a jury be selected “in a county to the north outside of the Louisville and Evansville media markets,” and brought to Spencer County to be tried.

But Levco said he and the defense have been talking about a plan to move all of the proceedings northward.

“I think there is a chance that we may go somewhere,” he said. Any plan come up with by the lawyers would require approval by Dartt, Levco said.

The trial site, the motion for Camm’s release and other outstanding matters will be considered at a hearing in Dartt’s court on July 9.

Posted by Marcia Oddi on Monday, June 04, 2012
Posted to Ind. Trial Ct. Decisions

Vacancy on COA 2012 - The five semifinalists for the Court of Appeals seat will be interviewed today, beginning at 12:30

Updating this ILB entry from May 29th (which includes more information on the five remaining candidates), the interviews of the five semi-finalists are today. Three of the five names will be recommended to the Governor. Here is the schedule:

Plainfield criminal defense attorney Cara Wieneke again will be covering the interviews for the ILB.

The ILB has learned that one of the three citizen members of the Judicial Nominating Commission (the citizen members are appointed by the Governor) may be unable to attend today.

Posted by Marcia Oddi on Monday, June 04, 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, June 3, 2012:

From Saturday, June 2, 2012:

Posted by Marcia Oddi on Monday, June 04, 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 6/4/12):

Next week's oral arguments before the Supreme Court (week of 6/11/12):

Webcasts of Supreme Court oral arguments are available here.


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

Next week's oral arguments before the Court of Appeals (week of 6/11/12):

Tuesday, June 12th

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, June 04, 2012
Posted to Upcoming Oral Arguments

Sunday, June 03, 2012

Ind. Courts - Final tally, Marion County Superior Court

From the Secretary of State Election Results, Indiana Primary Election, May 8, 2012 (Last Updated May 27, 2012 at 03:13 PM)

District Party Candidate Votes
Marion Superior   (D&R)
Democratic Greg Bowes 19091  
Linda E. Brown 36824  
Tom Carroll 26519  
John Chavis 31924  
Steven R. Eichholtz 23905  
John F. Hanley 28438  
Grant W. Hawkins 29856  
Mark A. King 16175  
Becky Pierson-Treacy 32565  
Jose Salinas 28648  
Mark D. Stoner 27467  
Heather Welch 32705  
Republican Robert R. "Bob" Altice, Jr. 37016  
Lisa F. Borges 35523  
Sheila A. Carlisle 37867  
Clayton Graham 30951  
Amy Jones 37886  
James A. Joven 30727  
Michael D. Keele 36168  
Helen Marchal 34289  
William (Bill) J. Nelson 34390  
Paul K. Ogden 23649  
Carol J. Orbison 26790  
Clark Rogers 34693  

ILB: See also this ILB entry from May 8, 2012.

Posted by Marcia Oddi on Sunday, June 03, 2012
Posted to Indiana Courts

Ind. Gov't. - "Indianapolis poised to extend coverage to city workers' domestic partners"

From a story today by Jon Murray of the Indianapolis Star that begins:

A decade ago, a City-County Council committee spurned a proposal to offer health-care benefits to city workers' domestic partners. Defeated, a councilwoman reassured a mostly disappointed audience: "You may have lost a battle, but your war still remains."

The battle has returned, but the war, at least on this issue, is fading.

The debate surrounding the council's new domestic partner benefits proposal -- up for introduction Monday night -- has focused mostly on policy details, fairness issues and cost, estimated at less than 1 percent of what the city and Marion County spend on health insurance. It's also centered on the city's ability to compete for the best employees.

A bipartisan group of council sponsors say the measure stands a good chance of passing, and Indianapolis Mayor Greg Ballard has indicated that he will consider it.

Since then-Councilwoman Karen Celestino Horseman, a Democrat, made her 2002 remarks to defeated advocates, many more employers have begun offering employees perks for unmarried domestic partners, gay or straight.

The long story also points out:
And unlike for married couples, health benefits for a domestic partner are taxable as income. [ILB - because of the current federal DOMA]
The story also points out that in Michigan:
... the Michigan Supreme Court ruled that a 2004 voter-approved amendment banning gay marriage and similar arrangements also prohibited government-provided domestic partner benefits at all levels. A state law enacted last year affirmed that stance, but a lawsuit is pending. For now, benefits are still available under some state employees' labor contracts. * * *

Gay-rights advocates have expressed concern that [an Indiana] proposed constitutional amendment banning same-sex marriage, which could go to voters in 2014, may have a similar effect on local governments' domestic partner benefits as the Michigan measure.

Posted by Marcia Oddi on Sunday, June 03, 2012
Posted to Indiana Government

Ind. Courts - "Allen County jury duty questionnaire going electronic"

Rebecca S. Green reports in the Sunday Fort Wayne Journal Gazette:

FORT WAYNE – If you receive a postcard from the Allen County courts, don’t throw it away.

That postcard is your official notification you’ve been selected for jury duty, and it directs you to a website where you can fill out the required questionnaire. It’s the Allen County court system’s newest attempt at making the jury process more efficient and user-friendly.

If you don’t have access to a computer, the postcard provides a phone number that allows those with a touch-tone phone to call in and complete the questionnaire over the phone. * * *

The new postcards are part of a recent upgrade to the jury system that makes Allen County the first county in the state to allow potential jurors to electronically complete their questionnaires.

And in a few weeks, the county will become the first in the nation to employ text messages to let jurors know if their service will not be required.

As chairwoman of the state’s jury committee, [Allen Superior Court Judge Fran Gull] gets excited about ways to better engage the community in jury service and the upgrades are welcome.

With an investment of $20,000 in software, the new system cuts postage for the mailings in half or more, she said. It also eliminates the need to hire a service to stuff the hundreds of juror questionnaires into envelopes to be mailed to county residents.

The new process will be “absolutely cheaper” in the long-run, she said.

Gull credits the Allen County commissioners, clerk, and Circuit Court for helping put the project together.

“It’s been a real collaborative effort,” she said.

Posted by Marcia Oddi on Sunday, June 03, 2012
Posted to Indiana Courts

Law - More on "Frankfort High honor student Elizabeth Olivas now will be able to attend her graduation"

This ILB entry from Friday concluded:

ILB: No mention in the story of whether Olivas will be attending an Indiana state-supported college or university. If so, will she ("clearly the type of student and young person Indiana and this nation should celebrate") be required to pay out-of-state tuition? See this Sept. 11, 2011 ILB entry.
Dan Carpenter's column today in the Indianapolis Star raises the same point:
Down the road, [Elizabeth Olivas] faces the common barrier of many bright kids who were brought here illegally at an age too early to decide and have gone straight and achieved. By recent action of the Indiana General Assembly, she would be stuck with astronomical out-of-state tuition were she to enroll in a state university. How many who voted for that measure of fiscal rectitude would proclaim that it served Elizabeth Olivas right?

Posted by Marcia Oddi on Sunday, June 03, 2012
Posted to General Law Related

Saturday, June 02, 2012

Law - Stories from Florida on opening child welfare hearings; review of child abuse deaths

Two stories from late May by Kelli Kennedy of the AP.

As published May 26th in the Palm Beach Post, this long story headed "Fla. to review all child abuse deaths." The story begins:

MIAMI — In one year, the number of Florida child abuse deaths dropped 30 percent, from 197 to 136, according to a tally by the state.

The dip between 2009 and 2010 seems remarkable, but wasn't due to a massive campaign to prevent child abuse deaths. Rather, it's because the state changed the way it categorized such deaths. Only a fraction of Florida's 2,282 overall child deaths in 2010 were labeled as abuse by a network of investigators whose training and approach can vary. The state child abuse death review team — which compiles the tally — is only forwarded cases that the local investigators determine to be abuse.

But Department of Children and Families Secretary David Wilkins said late Friday his agency would allow the independently run team to review all child deaths starting immediately.

As publiished May 28 in the Miami Herald, this story is headed "Are foster kids helped, harmed by open hearings?" The long story begins:
MIAMI -- A California judge's decision to open a county's child welfare hearings earlier this year has energized a debate among advocates in other states about whether greater transparency helps or harms the young victims appearing in family court.

When a child is abused or neglected, there's a family court hearing to discuss the victim's future. In nearly 20 states, including Texas, New York, Florida and Illinois, those hearings are usually open to the public and there is a push among child welfare advocates to open them in other states. Efforts to open the courts in California, Kentucky and the District of Columbia have garnered attention recently.

Proponents say transparency leads to better decisions by putting a spotlight on judges, exposes the blunders of child welfare workers and gives the public a better understanding of how the system works.

"Confidentiality has done more to protect the system than to protect the children in the system," said Michael Nash, chief presiding judge of Los Angeles County's children's court. He ruled in January that dependency hearings in his county will be open to the public unless there is proof the child will be harmed.

Posted by Marcia Oddi on Saturday, June 02, 2012
Posted to General Law Related

Friday, June 01, 2012

Law - "Frankfort High honor student Elizabeth Olivas now will be able to attend her graduation"

From an Indianapolis Star editorial today:

Frankfort High honor student Elizabeth Olivas now will be able to attend her graduation.

Olivas, the school's salutatorian, has earned a 3.96 grade point average in her four years of high school. She's described by her teachers -- 25 of whom wrote letters on her behalf -- as a well-respected and popular leader. She was even named homecoming queen earlier this school year. She's clearly the type of student and young person Indiana and this nation should celebrate.

Until Thursday afternoon, however, Olivas faced missing graduation on Saturday. That's because she missed by a single day the deadline for meeting the federal government's requirement that she and other children who were brought to the country illegally return to their country of origin to apply for a green card or visa within 180 days of their 18th birthday.

The editorial then explains how this happened:
On the advice of the family's attorney, Olivas waited until the last minute to travel to Mexico to submit a visa application so that she would miss as little school as possible. But an error in the attorney's calendar system threw off the application by a day, pushing it past the deadline. As a result, Olivas has been forced to stay in Mexico for the past six weeks pending an appeal for a waiver, a process that can take months. Although she kept up with studies online, she missed an academic awards ceremony and prom. And graduation was looming.
Advance Indiana posted about this story yesterday.

ILB: No mention in the story of whether Olivas will be attending an Indiana state-supported college or university. If so, will she ("clearly the type of student and young person Indiana and this nation should celebrate") be required to pay out-of-state tuition? See this Sept. 11, 2011 ILB entry.

Posted by Marcia Oddi on Friday, June 01, 2012
Posted to General Law Related

Ind. Decisions - Annual Supreme Court order of suspension of certain attorneys

Here is the annual 2-page Order (filed and posted today), followed by a 12-page Exhibit. From the Order:

The Court finds that the attorneys listed on Exhibit A, which is attached to and expressly made a part of this order, have not complied with the Admission and Discipline Rules mentioned above, the basis or bases of their noncompliance being listed to the immediate right of each attorney's bar number. Accordingly, this Court finds that such attorneys should be and therefore ARE SUSPENDED from the practice of law in the State of Indiana.

Although the suspension is effective as of the date of this order for purposes of the reinstatement procedures that must be followed and/or any reinstatement fees that must be paid for reinstatement, the Court directs that the proscription against the actual practice of law will go into effect at 12:01 a.m. Eastern Daylight Savings Time on Friday, June 22, 2012. The delay from the date of this order to the suspension date is for the sole purpose of allowing time for copies of this order to be sent, received, and acted upon by the suspended attorneys.

Notably, more than 5 pages of the addresses are located out-of-state.

Also, it appears that at least one page of names is missing. Page 5 of 14 of the PDF document ends with one name from LaPorte County. The following page (the pages of the document are not numbered) begins with a "Brown" in Marion County, but there is no "Marion County" heading.

[More] Okay, just as I was about to post, IndianaCourts tweeted that a new order was being posted. Good catch. The new one totals 26 pages, including the 2-page order itself. Marion County starts at p. 8 of the PDF. Out-of-state starts at p. 15 of 26. I'd guess they only got one side of the pages the first time.

[Still More] Another tweet from the Indiana Courts: "Suspension list is actually 26 pages. Total of 302 attorneys suspended. 134 of them for CLE and 216 for annual fees, some for both." Glad for the break-down.

[Even More] As I was paging through, I saw at least two out-of-state addresses mingled among the Indiana addresses ...

A notable Marion County name -- Tim Durham.

Posted by Marcia Oddi on Friday, June 01, 2012
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In City of Elkhart, Indiana v. SFS, LLC and Jefferson Group, LLC, a 14-page opinion, Judge Najam writes:

The City of Elkhart (“the City”) appeals the trial court’s grant of a motion to correct error jointly filed by SFS, LLC (“SFS”) and Jefferson Group, LLC (“Jefferson”). The City raises the following three issues for our review:

1. Whether SFS and Jefferson lack standing to challenge the trial court’s order for issuance of a tax deed to certain real property to the City.
2. Whether the trial court abused its discretion in considering SFS and Jefferson’s designation of evidence.
3. Whether the trial court abused its discretion when it concluded that the City did not comply with Indiana law when it failed to provide SFS with notice of tax sale proceedings.

We affirm. * * *

Accordingly, we hold that the trial court did not abuse its discretion when it granted SFS’ motion to correct error and that its order was correct both as a matter of fact and as a matter of law. Because the City failed to provide adequate notice, the City’s tax deed is void. See In re 2007 Tax Sale in Lake County, 926 N.E.2d at 529. We affirm the trial court’s order rescinding its previous order that a tax deed be issued to the City.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Richard Dean Martin v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 01, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still 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 May 26th, Marisa Kwiatkowski of the NWI Times reports today:

LAPORTE | A former LaPorte High School girl voluntarily engaged in a sexual relationship with her former junior varsity volleyball coach, assuming all risk, LaPorte school officials claimed in court documents this week. * * *

The school district denied the family's allegations and claimed the girl knew what she was doing, court records state. The girl was 15 at the time she engaged in a sexual relationship with Ashcraft.

Posted by Marcia Oddi on Friday, June 01, 2012
Posted to Indiana Courts

Ind. Courts - Indiana Justices getting ready for their closeup

New photo of the new Supreme Court getting ready for their photoshoot -- from the Indiana Courts website.

Posted by Marcia Oddi on Friday, June 01, 2012
Posted to Indiana Courts

Ind. Decisions - "Judge allows current, former Camm prosecutors to discuss case"

Duane Pohlman reports for WLKY:

FLOYD COUNTY, Ind. -

A judge has ruled Floyd County prosecutor Keith Henderson can help the new special prosecutor in the latest David Camm murder trial.

The special prosecutor is playing down the significance of the ruling, but it is a key victory as the case against Camm ramps up for a third trial.

In February, Henderson reacted to news that he was being removed from the Camm case for what Indiana courts called a clear and convincing conflict -- signing the deal to write a book about the case he was prosecuting.

"I respect the Supreme Court decision, (but) I wholly disagree with it," Henderson said in February.

But Camm's attorneys wanted to go further, arguing in Spencer County that Henderson should be barred from all contact with the special prosecutor.

"We don't want that conflict of interest to permeate the new prosecutor," defense attorney Richard Kammen said in April.

But the new prosecutor, Stan Levco, argued against that.

"I thought I ought to be able to have limited contact, given that he tried the case," Levco said in April.

Judge Jonathon Dartt, overseeing the case, agreed, ruling Henderson and Levco can indeed discuss the case.

Levco reacted, saying he's pleased with the ruling, but told WLKY's Duane Pohlman he will have no extensive conversations with Henderson and that Henderson will have no decision-making in the case.

ILB: Interestingly, the special prosecutor, Stan Levco, is also the special prosecutor in the St. Joe County case were:
Former Saint Joe County Democratic Chairman Butch Morgan and three former voter-registration staffers were indicted last month on charges that the staffers forged signatures to ensure Barack Obama and Hillary Clinton had enough names to qualify for Indiana‘s primary in 2008.
See the May 21st story here from Indiana Public Media.

Posted by Marcia Oddi on Friday, June 01, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today

In U.S. v. Sheneman (ND Ind., DeGuilio), a 17-page opinion, Circuit Judge Kanne writes:

Michael Sheneman and his son Jeremie engaged in an elaborate mortgage fraud scheme that convinced unwitting buyers to purchase a large number of properties they could neither afford nor rent out after purchasing (as they had planned). As part of the scheme, mortgage lenders were duped into financing these ill-advised purchases through various misrepresentations about the buyers and their financial stability.

All told, four buyers with few assets and no experience in the real estate market purchased sixty homes. Most of the homes were eventually foreclosed upon, and the buyers and lenders each suffered significant losses. Sheneman was subsequently convicted of four counts of wire fraud and sentenced to ninety-seven months’ imprisonment. On appeal, he challenges the sufficiency of the evidence supporting his conviction, as well as the district court’s application of two sentencing enhancements. We find none of these contentions meritorious, and accordingly affirm his conviction and sentence.

Posted by Marcia Oddi on Friday, June 01, 2012
Posted to Ind. (7th Cir.) Decisions

Vacancy on COA 2012 - Madison County Judge applying for COA

The Anderson Herald Bulletin had a long story May 17th on Circuit Court Judge Rudy Pyle, who is now one of the 5 semi-finalists (out of 15 applicants) who will be interviewed next Monday for the second time by the Judicial Nominating Commission. Some quotes from the story by Sam Brattain:

Upon being appointed Circuit Court Judge in October 2009, Pyle has presided over 42 criminal and civil jury trials. As a trial court judge, Pyle knows how frustrating it is to have a decision reversed by the court of appeals.

“No one likes to be reversed, but it happens to every judge eventually. That’s the beauty of the appeals courts, it’s another body to look at our work,” Pyle said.

Pyle, and the remaining four candidates will have another round of interviews June 4. After the interview, Pyle said, the commission will hold an executive session to select three finalists, who’s names will be submitted to Governor Mitch Daniels for appointment. * * *

While becoming a court of appeals judge is a career objective for Pyle, he said he loves the job he has now. Either way, Pyle said he will continue to live in Anderson.

“I’m always telling people ‘don’t move, stay here in Madison County’,” Pyle said, so it would only be appropriate that he would follow his own advice.

ILB: See this entry from May 29th for photos and applications of the five semi-finalists.

Posted by Marcia Oddi on Friday, June 01, 2012
Posted to Vacancy on COA 2012

Ind. Decisions - "Plaintiffs in 2 Weinberger suits must undergo mental exams"

Yesterday's NFP COA opinion in 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) is the subject of a brief story today by Susan Brown in the NWI Times. The story begins:

CROWN POINT | The Court of Appeals of Indiana on Thursday upheld a decision by a Lake County judge to approve psychological evaluations for two men who have sued an indicted former Merrillville sinus doctor.

The medical malpractice suits filed by Jeffrey Riggs, of Crown Point, and Mark Ashmann, of Highland, have been on hold awaiting the results of the appeal. The men's Indianapolis attorney filed the appeal after Lake Superior Court Judge Jeffery Dywan ruled in favor of the mental exams sought by attorneys for Mark Weinberger, who was known as the "Nose Doc."

Weinberger was indicted on 22 counts of health care fraud in Hammond federal court about five years ago. He faces trial in South Bend later this year.

Riggs and Ashmann each filed suit in 2010 after having been patients of Weinberger in 2003.

Each man claimed emotional injuries and feelings of being "duped" after learning Weinberger fled the country. They claim Weinberger drilled holes in their sinuses in the wrong place and did not perform the surgeries they sought.

Posted by Marcia Oddi on Friday, June 01, 2012
Posted to Ind. App.Ct. Decisions

Courts - "Thursday’s ruling by the First Circuit marked the first time that a challenge to DOMA had succeeded in a federal appeals court"

An excellent article by Lyle Denniston of SCOTUSblog on the 1st Circuit ruling this week (a unanimous three-judge panel ruling in Massachusetts v. Health and Human Services Department) on the DOMA. A sample:

The ruling nullified Section 3 of the Defense of Marriage Act, passed by Congress in 1996 to deny any federal benefit to a same-sex couple, even if the spouses were legally married under state law. This is one of the gay marriage cases now developing around the nation that may soon lead to one or more appeals to the Supreme Court, very likely in the Term opening October 1. “Only the Supreme Court can finally decide this unique case,” the First Circuit commented.

If the new ruling withstands a likely appeal, it would actually affect only gay couples married in the six states and the District of Columbia that now allow such marriages, but it could serve as a constitutional precedent for challenging other limits or bans on gay marriage in any state. The benefits at issue are keyed to legal marriages. Whether all of those benefits would still be available if a legally married couple traveled to another state to live could depend upon whether their new state officially accepted their marriage as valid. One thing left uncertain in Thursday’s ruling was the impact of the ruling on legally married gays who now live in states that refuse to recognize any such marriage. A part of DOMA that deals with this point — Section 2, giving states permission not to recognize such a marriage performed in another state — was not at issue before the First Circuit.

Thursday’s ruling by the First Circuit marked the first time that a challenge to DOMA had succeeded in a federal appeals court, but the same issue is now pending in the Ninth Circuit Court after two federal judges in California had found Section 3 to be invalid. The Ninth Circuit Court is also pondering now a request that it reconsider, en banc, a three-judge Circuit panel’s ruling in February striking down California’s voter-approved “Proposition 8,” banning same-sex marriage in that state.

Posted by Marcia Oddi on Friday, June 01, 2012
Posted to Courts in general