« June 2012 | Main | August 2012 »

Tuesday, July 31, 2012

Ind. Courts - Was this Justice Sullivan's last day on the Supreme Court?

From the May 30th Court press release announcing applications were "available for a position on the State's highest court":

The position on the high court is available because Justice Frank Sullivan, Jr. announced he is stepping down from the bench. In April 2012, the Indiana University’s Robert H. McKinney School of Law announced Justice Sullivan would begin teaching full time in Fall 2012. His departure creates the third opening on the five-member Court in the past two years.
Notice the wording. And there have been no additional, more specific releases from the Court. An earlier April 5th Court release on the upcoming vacancy said:
On April 2, 2012 Supreme Court Justice Frank Sullivan, Jr. announced his retirement from the Supreme Court. His exact retirement date has not been set, but will take place during the summer.
Here, in an April 2nd post, is the announcement from Robert H. McKinney School of Law - it begins:
Indianapolis -- Indiana Supreme Court Justice Frank Sullivan, Jr., has been appointed to the faculty of the Indiana University Robert H. McKinney School of Law, Dean Gary R. Roberts announced today. Sullivan’s appointment takes effect at the start of the Fall Semester.
And here are several press stories on the retirement, from April 3rd.

The ILB this evening has been unable to verify that this was Justice Sullivan's last day on the Court. An e-mail inquiry to the Justice has gone unanswered. But the Court over the past few days has issued an unusual number of opinions, it is the last day of July, and most law faculty are on a ten-month contract that begins August 1 and ends May 31. Classes begin August 20.

Posted by Marcia Oddi on Tuesday, July 31, 2012
Posted to Indiana Courts

Courts - "Missouri Supreme Court throws out medical malpractice caps"

See How Appealing post.

Posted by Marcia Oddi on Tuesday, July 31, 2012
Posted to Courts in general

Ind. Courts - "Indiana judge refuses to dismiss misconduct charge against state's former utility chief"

AP story here. It begins:

A judge has refused to dismiss an official misconduct charge against Indiana's former top utility regulator.

David Lott Hardy's attorney told a judge Monday that he would file a pretrial appeal, Marion County prosecutor's office spokeswoman Brienne Delaney said.

The former chairman of the Indiana Utility Regulatory Commission was indicted in December on three counts of official misconduct. The indictment alleged that Hardy allowed the panel's top lawyer to keep overseeing cases involving Duke Energy even though he knew the attorney was trying to land a job at the utility company.

Hardy had filed a motion in Marion Superior Court in April to dismiss an amended indictment against him, claiming he did nothing criminal. He claimed the charges are too broad and seek to impose criminal liability for violating administrative rules.

Posted by Marcia Oddi on Tuesday, July 31, 2012
Posted to Indiana Courts

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

In Aschermann v. Aetna Life (SD Ind., McKinney), a 13-page opinion, Chief Judge Easterbrook writes:

Carol Aschermann suffers from degenerating discs and spondylolisthesis. She had lumbar fusion operations in 2002 and 2004. Dmitry Arbuck, her pain-management specialist, believes that only the development of new medical procedures could alleviate her residual pain. * * *

Until 2003 Aschermann worked for AstraZeneca Pharmaceuticals as a sales representative. * * * Back pain left her unable to perform its duties. Between 2003 and 2009 she received disability payments under AstraZeneca’s disability plan, a welfare-benefit plan governed by the Employee Retirement Income Security Act (ERISA). Terms of the disability plan are contained in a group insurance policy issued by Lumbermens Mutual Casualty Company. For two years from the onset of a disability, the plan provides benefits to a participant who can’t do her old job. After that, the question becomes whether she can perform any job in the economy as a whole. Lumbermens stopped paying disability benefits to Aschermann in fall 2009, concluding that she could do sedentary work.

The district court held that, to upset this decision, Aschermann must establish that it is arbitrary and capricious. 2010 U.S. Dist. LEXIS 121841 (S.D. Ind. Nov. 12, 2010). After reviewing the documents that she submitted to Aetna Life Insurance Co., which administers the group plan on behalf of Lumbermens, the court held that the decision to end her disability benefits was neither arbitrary nor capricious, and it entered summary judgment in defendants’ favor. 2011 U.S. Dist. LEXIS 149785 (S.D. Ind. Dec. 30, 2011). Aschermann does not deny that her education (she has a B.S. in psychology and a master’s degree in social work) and experience suit her for many desk-bound positions, but she contends that Aetna erred in finding that she is able to perform any of them. Dr. Arbuck believes that she cannot work more than four hours a day. Aetna concedes that, if that is so, she is entitled to disability benefits. * * *

Affirmed.

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

Ind. Decisions - " Indiana backs off defense of new immigration law"

From the AP:

INDIANAPOLIS (AP) — The state attorney general's office says it no longer will defend most of the disputed portions of Indiana's new immigration law because they've been rendered invalid by the U.S. Supreme Court's ruling striking down similar parts of an Arizona law.

The state filed documents Tuesday in federal court in Indianapolis stating that it would not defend portions of the Indiana law that enable police to make warrantless arrests based on certain immigration documents.

[More] For background, see this June 25, 2012 ILB entry headed "Statement of Indiana AG's office on SCOTUS decision today in Arizona immigration case" and this one from June 26th headed "Justices Define Narrow Opening on Immigration."

[More] Here is the lengthy press release issued late this afternoon by AG Zoeller.

Posted by Marcia Oddi on Tuesday, July 31, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court decides Andrew Conley case

In Andrew Conley v. State of Indiana, a 29-page, 3-2 opinion, Justice David writes:

This case involves a seventeen-and-a-half-year-old who murdered his ten-year-old brother. Andrew Conley confessed to the crime and pleaded guilty to murdering his brother, Conner, while Conley was babysitting Conner. Following five days of sentencing testimony, including the testimony of twelve witnesses and one-hundred-and-fifty-five exhibits, the trial court judge sentenced Conley to life without parole. We hold that based on the age of Conley, the age of Conner, and the particularly heinous nature of the crime, a sentence of life without parole was appropriate. We hold that on the facts of this case, the sentence of life without parole is constitutional. * * *

IV. Constitutional Implications of LWOP for a Seventeen-Year-Old * * *

We first note that Conley was born on May 14, 1992, and he murdered his brother on November 28, 2009. He was seventeen years, six months, and two weeks old. He pleaded guilty on September 13, 2010, and was sentenced on October 15, 2010, at the age of eighteen years and five months. Our review of other states reveals that the overwhelming majority provide for the possibility of LWOP sentences to individuals under the age of eighteen.3 These decisions have been made by the legislature. The legislature has made a policy decision that this is what we want to do. The Eleventh Circuit has written, “the death penalty is not required to deter juveniles from committing murder because a life without parole sentence is deterrence enough, particularly for a juvenile.” Loggins v. Thomas 654 F.3d 1204, 1223 (11th Cir. 2011). In Roper v. Simmons, 543 U.S. 551 (2005), the United States Supreme Court held that it was cruel and unusual punishment to sentence an individual under the age of eighteen to death. However, Roper recognized that life without parole was still a viable sentence for juveniles, noting the LWOP sentence was a severe enough sanction to not need the death penalty for juveniles. 543 U.S. at 572. The implication of Roper, then, is that a sentence of life without parole for a juvenile convicted of homicide is constitutional. Loggins v. Thomas, 654 F. 3d 1204, 1222 (11th Cir. 2011). Recent opinions have been handed down by Nebraska4 and Missouri upholding as constitutional an LWOP sentence to a juvenile who commits murder under the United States Constitution and their state constitutions. * * *

Conclusion. The heinous facts of this crime are difficult to comprehend. A seventeen-and-a-half-year-old caring for his ten-year-old brother murdered the defenseless child with his bare hands. After disposing of the body, Conley acted as if nothing was out of the ordinary. He took steps to cover up the crime and hid his brother’s body in a park. The aggravating factor was clearly established and uncontroverted. The judge was within his discretion in weighing the mitigating factors in the manner in which he did. Ultimately, we find no abuse of discretion in Judge Humphrey’s analysis of those factors and ultimate sentence of life without parole. Also, the trial court did not abuse its discretion in admitting the testimony of Dr. Daum. Finally, the imposition of life without parole to a convicted murderer under the age of eighteen in Indiana is in line with the rest of the nation in holding such a sentence is constitutional. We affirm Conley’s sentence of life without parole.

Dickson, C.J., and Massa, J., concur.

Rucker, J., dissents with separate opinion in which Sullivan, J., concurs. [J. Rucker's dissent begins on p. 18 of 29] At the age of seventeen Andrew Conley murdered his ten-year-old brother. I agree with the majority that Dr. Daum’s testimony was properly admitted and I do not believe the trial court manifestly abused its discretion in weighing aggravating and mitigating circumstances in this case. However, I do not agree Conley should have been sentenced to die in prison. Therefore I respectfully dissent. * * *

Finally, Conley was only seventeen at the time of this crime, and I find, as has the Supreme Court, that his age is relevant to the assessment of his character. There is no question that juveniles have developmental issues that reduce their culpability for crimes. In this case, it seems clear that Conley “was still a teenager with a developing brain and impulse control issues made worse by his mental illness.”

I disagree with the majority’s characterization of Conley’s “hardened character.” While many juveniles may commit crimes that “reflect[] unfortunate yet transient immaturity,” only “the rare juvenile” is capable of committing a crime that “reflects irreparable corruption.” See Roper, 543 U.S. at 573. I cannot conclude at this time that Andrew Conley is one of those rare juveniles. For this reason I would revise his sentence to the maximum term of sixty-five years.

Posted by Marcia Oddi on Tuesday, July 31, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)

For publication opinions today (1):

In The Estate of K. David Short by Judith Y. Short, Personal Representative v. Brookville Crossing 4060 LLC d/b/a Baymont Inns & Suites and MPH Hotels, Inc. d/b/a Baymont Inns & Suites, a 19-page opinion, Judge Brown concludes:

We conclude that Baymont did not have reason to know of Short’s peril and thus the court did not err in granting its motion for summary judgment. See McCann v. Miller, No. 08-561, 2009 WL 4641713, at **1, 3, 6 (E.D. Pa. Dec. 7, 2009) (holding that hotel was entitled to summary judgment against plaintiff hotel guests where the plaintiffs were assaulted while on hotel property and the question was whether, under § 314A, the hotel “had reason to know that the assault was going to occur”).

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Baymont.

NFP civil opinions today (2):

In re the Guardianship of Thora Moulton: Alison E. Clapp (O'Callaghan) v. Donald J. Evans (NFP)

Cynthia R. Atkinson v. Indiana Dept. of Administration (NFP)

NFP criminal opinions today (12):

James L. Hebner v. State of Indiana (NFP)

Samuel Davis, Jr. v. State of Indiana (NFP)

Zachary Daye Riffle v. State of Indiana (NFP)

Tommy Joe Doublin v. State of Indiana (NFP)

Joshua Wotowiec v. State of Indiana (NFP)

Joseph Peters v. State of Indiana (NFP)

Micole Draughon v. State of Indiana (NFP)

Kelly Allen v. State of Indiana (NFP)

Michael Burnett v. State of Indiana (NFP)

David E. Arnold v. State of Indiana (NFP)

David Smithers v. State of Indiana (NFP)

Melissa Bruce v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 31, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - At least one more from the Supreme Court today

In Engelica E. Castillo v. State of Indiana, a 20-page, 4-1 opinion, Chief Justice Dickson writes:

Prosecuted for the heinous death of Jada Justice, her two-year-old cousin, Engelica Cas-tillo1 was convicted of one count of Murder, two counts of class A felony Neglect of a Dependent, one count of class A felony Battery, and one count of class A misdemeanor False Informing. She was sentenced to life imprisonment without the possibility of parole for Murder plus a total of five additional years for the other crimes. On direct appeal, she challenges her sentence of life without parole for Murder, asserting two claims: (1) sentence inappropriateness and (2) prosecutorial misconduct during the sentencing phase of her trial. For reasons expressed below, we conclude that the appropriate sentence for this defendant's conviction for Murder is a term of sixty-five (65) years. * * *

It could be contended that, standing alone, the prosecutor's erroneous statement of law would present little threat of prejudice because it was only a small part of a much longer exposi-tion by the prosecutor in closing argument, was not repeatedly reiterated, and was countered by a correct statement of the law in the final instructions.11 But, when it is juxtaposed with the prose-cutor's thinly-veiled call for the jury to sentence the defendant to life without parole because of her unsavory character, we cannot ignore the substantial potential for harm to the defendant's right to be sentenced fairly in accordance with the law. Telling the jury not to balance the aggra-vators and the mitigators touched on the central task of the jury in deciding whether to impose life without parole. The prosecutor not only urged the jury not to so weigh the factors but also asked the jury to consider additional allegedly aggravating circumstances not permitted by the statute. Although the defendant's trial counsel did not contemporaneously object, the magnitude of this prosecutorial overreaching not only placed the defendant in a position of grave peril to which she should not have been subjected but also presented an undeniable and substantial po-tential for an erroneous jury sentencing recommendation. For her claim of prosecutorial miscon-duct in the penalty phase, the defendant asks that we vacate her life sentence and either "remand to impose a sentence of years, or imposition of a sentence of years by this Court." Because we have in Part 1 of this opinion concluded that the defendant's sentence for the crime of murder should be revised from life without parole to a term of sixty-five years, no further relief is warranted for the defendant's prosecutorial misconduct claim. * * *

We conclude that the appropriate sentence for the defendant's murder conviction is im-prisonment for a term of sixty-five (65) years rather than life imprisonment without the possibility of parole. This cause is remanded for entry of the revised sentence on the conviction for Murder.

Sullivan, J., concurs.
Rucker, J., concurs in result.
David, J., concurs in result with separate opinion. [which begins at p. 15]

Massa, J., dissents with separate opinion. [which begins, at p. 17] I agree with the majority’s conclusion that the evidence supported Castillo’s conviction for murder as an accomplice, but dissent because I believe there was also substantial evidence for the jury to conclude Castillo was the principal actor.

Posted by Marcia Oddi on Tuesday, July 31, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues three (now five) today

In Anthony H. Dye v. State of Indiana, a 16-page, 4-1 opinion, Justice Sullivan writes:

Anthony Dye was convicted of unlawful possession of a firearm by a serious violent fel-on (“SVF”) and found to be a habitual offender. We hold that this constituted an impermissible double enhancement and therefore vacate the habitual-offender enhancement. We affirm his conviction of unlawful possession of a firearm by an SVF and his sentence for that offense. * * *

Dye raised four issues on appeal, all of which were rejected by the Court of Appeals in a 2-1 opinion. Dye v. State, 956 N.E.2d 1165 (Ind. Ct. App. 2011). First, the court held that the double enhancement was permissible. Id. at 1169-70. Second, it rejected Dye’s Batson challenge on grounds that he had not made a prima facie showing of discrimination and, in any event, that the State had offered a sufficient race-neutral reason. Id. at 1170-71. Third, it held that he had waived review of his claim that the trial court erred in denying his motion for a mistrial. Id. at 1171-72. Lastly, the court held that Dye’s 50-year sentence with 15 years suspended was appropriate. Id. at 1172-73. Judge May dissented, agreeing with Dye that he had been subject to an impermissible double enhancement. Id. at 1173-76 (May, J., dissenting). * * *

Dye maintains that tacking the habitual-offender enhancement on to the sentence for unlawful possession of a firearm by an SVF constitutes an impermissible double enhancement. This case is yet another chapter in the ongoing dialogue among this Court, the Court of Appeals, and the Legislature concerning multiple sentencing enhancements for recidivist offenders. A brief review of this dialogue is helpful in resolving Dye’s claim. * * *

We conclude that the trial court erred in denying Dye’s motion to dismiss the habitual-offender allegation. We thus vacate the 30-year enhancement that the trial court imposed under the general habitual offender statute. * * *

We vacate Dye’s habitual-offender enhancement. We also summarily affirm the decision of the Court of Appeals that an executed term of 20 years’ imprisonment is not inappropriate. We remand to the trial court with instructions to enter an order sentencing Dye to an executed term of 20 years.

Rucker and David, JJ., concur.

Dickson, C.J., concurs, noting that, notwithstanding Justice Massa's informative and persuasive dissent, I prefer to adhere to our existing controlling precedent of Mills v. State, 868 N.E.2d 446 (Ind. 2007), to which the Legislature has not responded with any contrary explicit legislative direction.

Massa, J., dissents with separate opinion. [which begins on p. 8 of 16, and concludes] The courts of this state communicated to the General Assembly what was, and was not, permissible with respect to double enhancements. Several times, the General Assembly has responded. I believe their 2001 response amending the habitual offender statute shows first that the SVF statute is not a progressive penalty statute, and second that, even if the SVF statute were still subject to the general rule against double enhancement, there is explicit legislative direction permitting an adjudicated serious violent felon to be subject to additional enhancement under the general habitual offender statute. Accordingly, I dissent.

In Shepherd Properties Co., d/b/a Shepco Commercial Finishes v. International Union of Painters and Allied Trades, District Council 91, an 11-page, worth reading in full, 3-2 opinion, Justice David writes:

In this case, a plaintiff prevailed on its Access to Public Records Act claim against a public agency and an intervening private party. As required by statute, the trial court awarded the plaintiff attorney’s fees.

The fees were awarded against both the public agency and intervening private party, jointly and severally. The private party argued that the Access to Public Records Act does not contemplate the award of attorney’s fees against an intervening private party and that only the public agency should be liable for the fees.

We hold that the Access to Public Records Act, in light of the legislature’s liberal-construction mandate and the statute’s underlying policy, permits the award of attorney’s fees against an intervening private party. We further hold that, in this case, the trial court did not abuse its discretion in its apportionment of liability. * * *

ShepCo appealed. The Court of Appeals held that a private entity like ShepCo is not liable for attorney’s fees under the APRA and that Township, the public agency, was solely liable. Shepherd Props. Co. v. Int’l Union of Painters, 950 N.E.2d 321, 325 (Ind. Ct. App. 2011). On rehearing, the Court of Appeals acknowledged two prior Court of Appeals cases that stated that a private party may be liable for the attorney’s fees of a party prevailing in an action to compel disclosure under the APRA. Shepherd Props. Co. v. Int’l Union of Painters & Allied Trades, Dist. Council 91, 955 N.E.2d 208, 209 (Ind. Ct. App. 2011). But the Court of Appeals noted that the “APRA does not include language providing for payment of attorney’s fees by an intervenor, and will not write into the statute such a provision.” Id. (emphasis omitted). We granted transfer.

We hold that private parties may be held liable for a substantially prevailing plaintiff’s attorney’s fees under the APRA. We also hold that the trial court did not abuse its discretion in awarding the fees against the public agency and intervening private entity, jointly and severally.

We affirm the trial court’s award of attorney’s fees to Union and remand to the trial court to determine what additional attorney’s fees the Union incurred under the APRA as a result of ShepCo’s appeal.

Sullivan and Rucker, JJ., concur.

Dickson, C.J., and Massa, J., dissent without opinion.

ILB: It is disappointing that in this important case construing the public records law, both C.J. Dickson and J. Massa elected to take the rare route of dissenting "without opinion."

In The Presbytery of Ohio Valley, Inc., d/b/a The Presbytery of Ohio Valley, d/b/a Ohio Valley Presbytery, et al. v. OPC, Inc., f/k/a Olivet Presbyterian Church, Inc., et al., an 18-page, 3-2 opinion, Chief Justice Dickson writes:

This case involves a property dispute between an individual church congregation, the Olivet Presbyterian Church ("Olivet"), and the denominational organization with which it was previously affiliated, the Presbyterian Church (U.S.A.) ("PC(USA)"), and the latter's subsidiary organizations, the plaintiffs in this action—the Presbytery of Ohio Valley and the Synod of Lincoln Trails of the Presbyterian Church (U.S.A.), Inc. (collectively, "Presbytery"). The trial court granted summary judgment rejecting the Presbytery's claims of express and implied trust and holding that the disputed property is solely owned by Olivet. The Presbytery appealed both the denial of its motion for summary judgment and the granting of Olivet's motion. The Court of Appeals reversed the trial court and granted summary judgment in favor of the Presbytery. Presbytery of Ohio Valley, Inc. v. OPC, Inc., 940 N.E.2d 1188, 1197 (Ind. Ct. App. 2010). We granted transfer, thereby vacating the opinion of the Court of Appeals. Ind. App. R. 58(A)(2). We hold that genuine issues of material fact arise from the inferences flowing from the stipulated designated evidence and that neither Olivet nor the Presbytery is entitled to the full relief sought in their respective motions for summary judgment. * * *

Conclusion. We hold that neither the Presbytery nor Olivet are entitled to summary judgment com-pletely resolving this case in their favor. Genuine issues of disputed fact, resulting from varying inferences possible from the designated evidence, must be resolved at trial rather than on sum-mary judgment. With respect to the Presbytery's claim of express trust, the designated evidence and its reasonable inferences show that there is no genuine issue of fact and that, as a matter of law, Olivet did not create an express trust upon its property in favor of the Presbytery or the PC(USA). As to the Presbytery's claim of implied resulting trust, reasonable inferences are pos-sible and thus produce a genuine issue of material fact regarding the requisite unequivocal intent of Olivet to create a trust. This cause is remanded to the trial court for further proceedings con-sistent with this opinion.

Rucker and David, JJ., concur.

Sullivan and Massa, JJ., dissent, believing the decision and analysis of the Court of Appeals in this case, 940 N.E.2d 1188 (Ind. Ct. App. 2010), to be correct.

In Sean Thomas Ryan v. Dee Anna Ryan, a 17-page, 5-0 opinion, Justice Sullivan writes:
When Sean and Dee Anna Ryan divorced, they agreed to sell two properties they owned and divide the proceeds, subject to a proviso that neither party was required to accept a sale yielding net proceeds below specified minimums. When the properties could not be sold at or above the specified minimums, Dee Anna refused to waive the proviso. She was entitled by law to do so. * * *

As of May 14, 2010, neither of the properties had sold so Sean filed a Motion for Relief from Judgment pursuant to Indiana Trial Rule 60(B)(8), seek-ing a court order that the properties be sold at “prevailing fair market value and the Private Agreement be declared of no further force and effect.”

The trial court denied Sean’s request, but the Court of Appeals reversed and remanded for the trial court to hold an evidentiary hearing on Sean’s motion, Ryan v. Ryan, 946 N.E.2d 1191 (Ind. Ct. App. 2011), reh’g denied. We granted transfer, Ryan v. Ryan, 962 N.E.2d 651 (Ind. 2011) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A). * * *

We think the legal culture in Indiana is past the point where we could realistically say that Trial Rule 60(B) is not available when a dispute arises over a settlement agreement or property-division order. But we do offer several concluding observations in this regard.

Like all of our Trial Rules, Trial Rule 60(B) is a rule of procedure; it does not confer any substantive right on a party that invokes it. While courts sometimes say that Trial Rule 60(B) “gives courts equitable power,” that is not strictly true. Rather, Trial Rule 60(B) gives the court a procedural mechanism to exercise power that it derives from substantive law: from equity, or from common law, or from a statute, or from a constitution. This is important because it means that a court’s exercise of power under Trial Rule 60(B) is subject to the limitations of the substantive law itself.

We think it unlikely that a court can invoke equity to overcome the mandate of a statute including, in particular, the statutory prohibitions on courts modifying settlement agreements and property-division orders that we have been discussing in this opinion. But this does not always oust the court from modifying a settlement agreement or property-division order; it only prevents the court from doing so in the exercise of equity. We think that the purpose of the statutory prohibitions on modification – and we think the case law strongly reinforces this – requires a court to approach any dispute over a settlement agreement or property-division order as a contract dispute, subject to the rules of contract law. * * *

We conclude by saying that, in writing this opinion, we have been struck by the recurrence of several fact patterns that have been avoidably problematic – the use of specific dollar amounts rather than percentages, the failure of a QDRO’s terms to conform to ERISA requirements, the failure to provide a contingency if the marital residence cannot be sold – and trust that practitioners and judges alike will contemplate them in their work as well.

Conclusion. We affirm the judgment of the trial court.

In James C. Purcell v. Old National Bank, a 13-page, 3-2 opinion, Justice David writes:
This case involves a trial court’s issuance of a directed verdict under Trial Rule 50(A). The issue presented in this case is whether the trial court abused its discretion under Rule 50(A) in its determination that the evidence presented by Purcell was insufficient to merit presentation of the evidence to the jury. We hold that the trial court properly exercised its discretion and affirm the ruling of the trial court in all respects. * * *

The trial court granted Old National’s motion for judgment on the evidence pursuant to Indiana Trial Rule 50(A). The Court of Appeals reversed, finding that Stein’s interrogatory answer constituted sufficient evidence to preclude an entry of judgment on the evidence, despite evidence to the contrary at trial, including an adamant denial from Stein that the interrogatory was incorrect. Purcell v. Old Nat. Bank, 953 N.E.2d 527, 532 (Ind. Ct. App. 2011). * * *

The Court finds that there was not sufficient evidence presented in this case to withstand a motion for judgment on the evidence on Purcell’s claims of fraud, deception, and tortious interference with contract. Accordingly, the trial court’s grant of Old National’s motion under Rule 50(A) is affirmed. Furthermore, Purcell’s relationship with Old National as a subordinate creditor did not give rise to a duty of care required to prove Purcell’s claims of negligence and constructive fraud, and the trial court did not abuse its discretion by denying Old National’s request for costs and attorney’s fees.

Sullivan, and Massa, JJ., concur.

Rucker, J., dissents in part and concurs in result in part with separate opinion in which Dickson, C.J., concurs. [J. Rucker's opinion begins on p. 11 of 13] I respectfully dissent to Section I of the majority opinion. The majority affirms the trial court’s grant of Old National’s motion for judgment on the evidence. But with respect to actual fraud and tortious interference with contract it does so on grounds the trial court did not reach, and more importantly conflicting inferences from the evidence before the jury precludes judgment on the evidence for these two claims.

Posted by Marcia Oddi on Tuesday, July 31, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Local (former) attorney facing fraud charges released from jail"

Scott Olson of the IBJ is reporting that:

William F. Conour, 65, was arrested on a warrant from the Decatur Circuit Court on July 25 after he failed to appear for a hearing to determine whether he had the funds from a $62,395.75 settlement he won for a client.
See the Indianapolis Business Journal story for more.

See also this July 5th ILB entry on Mr. Conour, headed "All attorney disciplinary proceedings pending against Respondent William F. Conour are hereby dismissed as moot because of Respondent’s resignation from the bar of this State."

Posted by Marcia Oddi on Tuesday, July 31, 2012
Posted to Indiana Law

Ind. Decisions - One posted today, filed late yesterday, from the Supreme Court, re forum non conveniens

In Dalmas Maurice Otieno Anyango and Jane Tinna Agola Otieno, as Natural Parents and Next of Kin of Isaiah Omondi Otieno, Deceased v. Rolls-Royce Corporation, Honeywell International Inc., et al., a 14-page,5-0 opinion, Justice Sullivan writes:

Parents of a young man killed in a bizarre helicopter accident in British Columbia appeal an Indiana trial court’s dismissal of their complaint in favor of the Canadian forum, arguing that their claim should be tried here because they would only be entitled to nominal damages under British Columbia law. Because we conclude that British Columbia provides an available and adequate forum under applicable law, and that the trial court did not otherwise abuse its discre-tion in dismissing the complaint on the ground of forum non conveniens, we affirm the trial court’s judgment. * * *

[O]ur Trial Rule 4.4(C) wisely entrusts the forum non conveniens decision to the trial court “under such reasonable conditions as the court in its discretion may determine to be just.” We find no basis for questioning the trial judge’s exercise of discretion here in granting the Defendants’ motion to dismiss. Rather, it is overwhelmingly clear from his order that Judge Keele did exactly what Trial Rule 4.4(C) required of him.

Posted by Marcia Oddi on Tuesday, July 31, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Appeals court requires honest home sale disclosures"

Today's NWI Times includes a story by Dan Carden on yesterday's Court of Appeals Not-for-Publication decision in the case of Johnson v. Wysocki:

INDIANAPOLIS | For the fourth time in three years, the Indiana Court of Appeals has ignored a state Supreme Court precedent and ruled a home seller must honestly disclose any known major problems with the property to a buyer.

Indiana has traditionally followed a "buyer beware" rule that says so long as a buyer has a chance to examine a property prior to purchase, the seller is free to make any claims he or she wants about its quality — even fraudulent claims. The rule stems from an 1881 Indiana Supreme Court decision known as Cagney v. Cuson.

Despite the controlling high court precedent, the appeals court on Monday again ruled a 1993 state law requiring a home seller complete a disclosure form attesting to the condition of a home's foundation, mechanical systems, roof, structure and plumbing bars a seller from knowingly misrepresenting the condition of those features.

"A seller may be liable for any misrepresentation on the sales disclosure form if the seller had actual knowledge of that misrepresentation at the time the form was completed," wrote Senior Judge Betty Barteau in a case involving the sale of a Crown Point home.

Judge Nancy Vaidik, a Porter County native, first declared the law demands honest disclosure in her dissent to the 2009 appeals court ruling in Dickerson v. Strand/German, which followed the Cagney precedent.

Since then the appeals court has adopted the principles of Vaidik's dissent as its majority ruling four times.

Vaidik said the Legislature intended to protect buyers, in limited circumstances, when they purchase a home — usually their largest and most important asset. Allowing sellers to knowingly lie on the disclosure form contradicts the Legislature's intent, she said.

Here is yesterday's NFP Court of Appeals opinion: Barbara A. Johnson and William T. Johnson, both individually and as trustees of the Barbara A. Johnson Living Trust Dated 12-17-1996 v. Joseph Wysocki and M. Carmen Wysocki (NFP).

Sr. Judge Barteau writes:

Our courts have long followed the rule that a purchaser has no right to rely upon the representations of the seller as to the quality of the property, where he or she has a reasonable opportunity of examining the property and judging its qualities for himself or herself. See Cagney v. Cuson, 77 Ind. 494, 497 (1881); Dickerson v. Strand, 904 N.E.2d 711, 715 (Ind. Ct. App. 2009). Nevertheless, in some cases where the buyer makes inquiries about a condition on, the qualities of, or the characteristics of the property, the seller has a duty to disclose material facts about the property. Wise v. Hays, 943 N.E.2d 835, 840 (Ind. Ct. App. 2011). Once the seller undertakes to disclose facts within his or her knowledge, the seller must disclose the whole truth. Id.

In 1993 our legislature created a statutory obligation, now codified as Indiana Code chapter 32-21-5, for sellers of certain residential real estate to complete disclosure forms informing prospective buyers of certain types of defects in the property. The disclosure form must be completed and signed and then submitted to a prospective buyer before an offer is accepted. See Ind. Code § 32-21-5-10(a) (2002). This chapter also knowledge of defect at time form is completed); Vanderwier, 937 N.E.2d at 401 (rejecting holding of Dickerson and adopting Hizer opinion in its entirety); and Wise, 943 N.E.2d at 841-42 (agreeing with Dickerson dissent, Hizer, and Vanderwier and holding that for transactions covered by Indiana Code chapter 32-21-5, seller may be liable for any misrepresentation on sales disclosure form if seller had actual knowledge of misrepresentation at time form was completed). Likewise, we agree that for transactions covered by Indiana Code chapter 32-21-5, a seller may be liable for any misrepresentation on the sales disclosure form if the seller had actual knowledge of that misrepresentation at the time the form was completed. * * *

Based upon the foregoing discussion and authorities, we conclude the evidence was insufficient to show, and the trial court did not find, that the Johnsons had actual knowledge of the defects at the time the sales disclosure form was completed. Therefore, we reverse the trial court’s judgment in favor of the Wysockis on their claim of fraudulent misrepresentation and direct the court to enter judgment in favor of the Johnsons. In addition, we affirm the trial court’s denial of the Wysockis’ request for attorney’s fees and costs pursuant to the Crime Victims Relief Act.

Affirmed in part and reversed in part.
NAJAM, J., and BROWN, J., concur.

Read Judge Vaidik's 5-page dissent in Dickerson here, beginning on p. 8. At p. 12:
Thus, for transactions covered by § 32-21-5-1, Indiana's disclosure form statute abrogates the common law rule that buyers cannot rely upon sellers' representations regarding the absence of defects in those things included in Indiana Code § 32-21-5-7(1) and places the onus on a seller to refrain from knowingly making misrepresentations about those conditions. * * *

From my reading of Indiana Code §§ 32-21-5-1 to -13, I agree with Reum, 817 N.E.2d at 1272, and Verrall, 810 N.E.2d at 1162-64, that the relevant question now is whether the seller of covered residential real estate actually knew about the property's defects when filling out the disclosure form. Pursuant to the plain language of Indiana Code § 32-21-5-11, this should be the relevant inquiry in evaluating the sellers' liability in the case before us. A contrary reading of Indiana Code § 32-21-5-11 would contradict the Legislature's intent to protect buyers, in limited circumstances, as they purchase what is typically one's largest and most important asset: a home.

See also Judge Vaidik's Feb. 15, 2011 opinion in Deborah J. Wise v. David T. Hays, et al, beginning at the bottom of p. 9.

Posted by Marcia Oddi on Tuesday, July 31, 2012
Posted to Ind. App.Ct. Decisions

Monday, July 30, 2012

Ind. Decisions - Transfer list for week ending July 27, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 20, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, July 27, 2012. It is two pages (and 26 cases) long. (Apparently there was no transfer list issued for the week ending Friday, July 20th.)

Three transfers were granted last week:

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

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

In Winforge v. Coachman Industries (SD Ind., Barker), a 46-page opinion, Central District Πof Illinois Judge Myerscough, sitting by designation, writes:

Winforge, Inc. (“Winforge”), and its president, Byron McMahon (“McMahon”), brought this diversity suit against Mod-U-Kraf Homes, LLC (“Mod-U-Kraf”), All-American Homes, LLC (“All American”), and Coachmen Industries, Inc. (“Coachmen”), alleging that the defendants breached the terms of a hotel development agreement between the parties. Winforge and McMahon claimed that the defendants’ alleged breach resulted in delay and costs that caused the plaintiffs to default on the separate construction loan agreement between the parties. The defendants filed a cross-complaint alleging that Winforge and McMahon, and not the defendants, breached the development agreement.

After a bench trial, the district court ruled in favor of the defendants and found that the parties had never entered into a final, enforceable contract. Additionally, the district court found that, if a final contract had been formed, the defendants had not breached the contract. The district court entered final judgment in favor of the defendants, entitling them to the funds still due and owing on the construction loan as well as any and all associated costs and fees. Winforge and McMahon appealed. For the following reasons, we affirm.

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

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP) [links corrected]

For publication opinions today (2):

In The Peniel Group, Inc. and Beech Grove Holdings, LLC v. Elizabeth Bannon, Kenneth G. Schaefer, Linda A. Schaefer, Norma Thinnes, Betty Benefiel, Janet Beeler, Charles Dodson and Beth Dodson, a 16-page opinion, Sr. Judge Darden writes:

Benefiel denied ever operating a dry cleaning business at the Site and therefore asserted that she was not a proper party to either the Dodsons’ or Beech Grove Holdings’s actions. Benefiel, however, admitted that dry cleaning chemicals were used at the Site. She also raised as an affirmative defense that any claims were barred by the statute of limitations.

On August 11, 2010, Beech Grove Holdings filed a motion for partial summary judgment as to liability only. The Dodsons filed a cross-motion for summary judgment, asserting that the six-year statute of limitations provided by Indiana Code section 34-11-2-7 barred the complaint. The Dodsons argued that the statute of limitations began to run on February 28, 1998, when the Environmental Legal Action (“ELA”) statutes found under Article 30 of Title 13 of the Indiana Code became effective. The Dodsons asserted that the claim accrued on that date because Beech Grove Holdings, or its predecessors, discovered, or could have discovered, that the Site had been contaminated prior to the effective date of the ELA. The Dodsons further argued that Beech Grove Holdings failed to designate evidence that the Dodsons “caused or contributed to the release of a hazardous substance into the surface or subsurface soil or groundwater as required by the ELA.” * * *

According to the designated evidence, Churchman Hill Associates, the predecessor-in-interest, became aware of the contamination as early as 1997, and certainly no later than 2000, the year ATC prepared a second environmental assessment of the Site on behalf of, and reported the detection of PCE and TCE in soil and groundwater samples to, Churchman Hill Associates. Thus, Beech Grove Holdings’s predecessor-in-interest knew of the contamination of the Site for at least eight years before Beech Grove Holdings commenced the action. We therefore find that Beech Grove Holdings is barred from bringing its claim under the ELA. Accordingly, the Appellees are entitled to summary judgment as a matter of law. Because this issue is dispositive, we need not address Beech Grove Holdings’s argument that the trial court “erred in finding that no genuine issues of material fact remain regarding whether the Dodsons ‘caused or contributed’ to the release of the hazardous substance at the Site.” Affirmed.

In State of Indiana v. Raymond P. Coleman , a 5-page opinion, Sr. Judge Garrard writes:
The State moved to dismiss its case against Raymond Coleman after the trial court declined to find the alleged victim unavailable so as to permit the State to enter her deposition testimony into evidence. The trial court granted the motion to dismiss, and the State now appeals the adverse evidentiary ruling. Concluding that the State has no statutory authorization to bring this appeal, we dismiss. * * *

For the reasons stated, we dismiss the attempted appeal.

NFP civil opinions today (5):

Jeffery Alholm v. Rebecca (Alholm) Allen (NFP)

Bruce A. Craig v. Cynthia E. Craig (NFP)

Fortune Management, Inc. v. Design Collaborative, Inc. (NFP)

Katie C. Graber v. Dale Graber (NFP)

Barbara A. Johnson and William T. Johnson, both individually and as trustees of the Barbara A. Johnson Living Trust Dated 12-17-1996 v. Joseph Wysocki and M. Carmen Wysocki (NFP)

NFP criminal opinions today (5):

Scott Robertson v. State of Indiana (NFP)

Lawrence Ray Holley, II v. State of Indiana (NFP)

Elex Baltazar v. State of Indiana (NFP)

Michael Mangan v. State of Indiana (NFP)

James L. Johnson v. State of Indiana (NFP)

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

Ind. Courts - Cass County courts put new phone system in place

Caitlin Huston reports today in the Logansport Pharos-Tribune:

A new telephonic appearance system in the Cass County courts might mean less travel time for out-of-town lawyers and lower costs for their clients.

The CourtCall system was put into two courtrooms in Cass County after Superior II Judge Rick Maughmer saw a demonstration at an April judicial conference. The phone system can be used in non-evidentiary hearings so that out-of-town lawyers do not have to travel to Cass County.

The phone system is now in place in Superior Court II and Circuit Court.

Maughmer said the phone system, which he used in court for the first time this month, would have the biggest impact on lawyers who had to travel hours for a five-minute appearance.

“It’s a convenience to the lawyers,” the judge said.

Each time the system is used, it’s a $55 charge, Maughmer said. In some cases, Maughmer said this could cut costs for a client who is paying a lawyer a high hourly fee.

Local lawyers and judges can also use the system if they’re out of town, but need to be present in Cass County for a case, Maughmer added.

Though the courts have a speaker phone system in place, Maughmer said those phones are not on the record and do not allow two parties to talk at the same time. The CourtCall system avoids those problems.

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

Ind. Decisions - Supreme Court issues awaited drainage decision today

In Thomas R. Crowel v. Marshall County Drainage Board, a 22-page, 5-0 opinion, Justice Sullivan writes:

Thomas Crowel appeals a Marshall County Drainage Board order assessing him a portion of a drain-reconstruction project’s costs, contending that he receives no benefit from the project because his land was adequately drained before the reconstruction. We affirm the assessment because under Indiana law, all landowners whose surface water flows into a drain receive a benefit by virtue of that drainage. * * *

The Court of Appeals reversed, in a 2-1 decision. Crowel v. Marshall Cnty. Drainage Bd., 951 N.E.2d 290 (Ind. Ct. App. 2011). Writing for himself and Judge Kirsch, Judge Mathias held “that, as a matter of law, relieving the lower-lying parcels from flooding occasioned by the natural flow of surface water from Crowel’s property does not benefit Crowel’s land and, therefore, cannot form the basis of the reconstruction assessment levied against him.” Id. at 298. Judge Vaidik dissented, arguing that Crowel’s property is benefited because it is located in the watershed and, as a result, drains surface water into the reconstructed drain. Id. at 300 (Vaidik, J., dissenting). * * *

We affirm the trial court’s decision upholding the Marshall County Drainage Board’s or-der and assessment schedule.

Posted by Marcia Oddi on Monday, July 30, 2012
Posted to Ind. Sup.Ct. Decisions

Vacancy #2 on Supreme Court 2012 - Is being a Democrat disqualifying? Or have Democratic appointees been better than Republican appointees in decisions that matter to Gov. Daniels?

This analysis was prepared by Indiana University-Robert H. McKinney School of Law professor Joel Schumm.

Article 7, Section 10 of the Indiana Constitution makes clear the Governor is to appoint Supreme Court justices “without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission.” The statutes that outline considerations for the JNC to weigh in assessing which applicants are the “most highly qualified” do not mention political party. Ind. Code § 33-27-3-2. Historically, however, the vast majority of applicants for each vacancy have been of the Governor’s political party, which meant the list of three was almost always limited to individuals from the Governor’s party. An exception was Court of Appeals Judge Robert Staton, a Democrat and finalist in 1985 when Governor Orr appointed (now Chief) Justice Dickson. Some also believe one of Governor O’Bannon’s appointees to the Court of Appeals was either apolitical or a Republican.

One of the ten semi-finalists this round was elected to the trial bench as a Democrat, which had led some to ask whether she will be automatically precluded from making the list of three. Although it is unlikely anyone will utter a word about political party during the final round of interviews, the topic is surely being considered. The rationale for disqualification, which you won’t find anywhere in the statute, is that the Governor should be given three “viable” choices, and a person of the opposing political party is thought to be a non-starter.

For those who view Supreme Court appointments as spoils that belong to the Governor’s party, I understand why a Governor would not reach outside his party, especially for an appointment to the highest court in the state. But any notion that a trial judge with stellar qualifications and a reputation for independence and fairness, who happens to carry a Democratic label in a county where most elected officials are Democrats, is somehow going to rule differently on issues than a similarly qualified Republican is a much tougher case to make.

Rarely do issues before the Indiana Supreme Court divide along the partisan or ideological lines that seem all too common at the U.S. Supreme Court. When they do, the Indiana Supreme Court has consistently put itself well outside the political fray. For example, in a Marion County City-Council redistricting case a decade ago, trial judges displayed abject partisanship—and were quickly and forcefully shot down by a non-partisan Indiana Supreme Court: “The decision by the Marion Superior Court to adopt, by a close, party-line vote, a plan that has been uniformly supported by one major political party and uniformly opposed by the other, cannot be reconciled with both the appearance and fact of scrupulous judicial neutrality.”

What about Governor Daniels’ view of the Court and its resolution of those issues most important to him? In the past seven and a half years, the Governor has rarely spoken about specific Indiana Supreme Court decisions, the vast majority of which have little to no relevance to the Governor’s office. In the few cases where the Governor seemingly did have a strong interest, I posit he is batting 1000—and has Democratic appointees to thank at least as much as Republican appointees.

1. Indiana Toll Road Lease: In a unanimous opinion written by Justice Boehm (a Bayh appointee), the Court rejected several constitutional challenges to the Governor’s signature “Major Moves” legislation.

2. Deposition in IBM Lawsuit: In an opinion by Justice Rucker (an O’Bannon appointee), the Court held the Governor was not required to submit to a deposition in a contract dispute brought by IBM against the state. Justice Sullivan (a Bayh appointee) concurred in the result in a separate opinion.

3. Democratic Challenge to Charlie White’s Eligibility to be Elected Secretary of State: Although the Governor said little about the case when it was pending, he was surely pleased when the Indiana Supreme Court (in an opinion by Chief Justice Shepard) reversed the Marion Circuit Court, which had declared White ineligible and ordered that Democratic challenger Vop Osili be certified as Secretary of State. This ruling cleared the way for Governor Daniels to appoint a Republican replacement to this important office. The justices appointed by Democratic Governors were fully on board, and Justice Dickson (an Orr appointee) wrote a separate concurring opinion.

4. Constitutionality of Voter ID Law: The Governor was definitely not happy when the Indiana Court of Appeals held that Indiana’s voter ID law violated the Indiana Constitution. The Indiana Supreme Court, though, soon reversed the Court of Appeals and upheld the constitutionality the law. The 4-1 opinion was written by Justice Dickson; Justice Boehm dissented.

5. Barnes v. State: Shortly after the Indiana Supreme Court held “the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law,” Governor Daniels joined the chorus of criticism of the decision. Ironically, the opinion was written by Justice David, the Governor’s only appointee to the Court.

In short, for most of Governor Daniels’ term of office (January 2005-September 2010), the Indiana Supreme Court had a 3-2 majority of justices appointed by Democratic Governors—and the Governor fared very well. Indiana is thankfully not Wisconsin or other states where supreme courts have issued what many see as partisan political decisions. Hopefully we can continue to say the same thing a decade or two from now.

In making the difficult choice of which of the ten semi-finalists are the three "most highly qualified," the focus should be on the characteristics of an ideal justice that many applicants cited in response to questions during the first round: independence, impartiality, fairness, intellectual curiosity, collegiality, fidelity to precedent, and a respectful judicial temperament. The void left by the retirements of Justice Boehm and Justice Sullivan should not be thought of in partisan terms but rather as a loss of experience with and a strong interest in complex civil matters. Hopefully the Governor is given three names best qualified to fill that void.

Posted by Marcia Oddi on Monday, July 30, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Courts - More on: "Local courtroom one of three in state testing video transcripts"

Plainfield Attorney Cara Wieneke sends a note re this morning's entry:

I read your article on the video transcripts this morning with interest and wondered about something. How will court reporters be paid for their services? Right now they are paid (exorbitant) rates for each page of transcript. But if they are doing nothing more than pushing the "record" button and gathering exhibits, shouldn't transcript fees go way down? Something that will really benefit my private clients who struggle finding the money to get needed transcripts.

As for the reader's comment that they like paper transcripts better, one added benefit to a video transcript will be that the transcript will be accurate. I have had transcripts in two different cases that either had left out sidebar conferences from the recording or that had been incorrectly transcribed from the actual recording. This required me going and listening to the transcript in order to compare it to the paper transcript. Definitely a time-consuming endeavor.

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

Not law - The times they are a changin': The continuing disruptive influence of the internet

From be Specific today, this entry:

Pew: The Future of Higher Education, by Janna Anderson, Jan Lauren Boyles, Lee Rainie. July 27, 2012

"For a millennium, universities have been considered the main societal hub for knowledge and learning. And for a millennium, the basic structures of how universities produce and disseminate knowledge and evaluate students have survived intact through the sweeping societal changes created by technology—the moveable-type printing press, the Industrial Revolution, the telegraph, telephone, radio, television, and computers. Today, though, the business of higher education seems to some as susceptible to tech disruption as other information-centric industries such as the news media, magazines and journals, encyclopedias, music, motion pictures, and television. The transmission of knowledge need no longer be tethered to a college campus. The technical affordances of cloud-based computing, digital textbooks, mobile connectivity, high-quality streaming video, and “just-in-time” information gathering have pushed vast amounts of knowledge to the “placeless” Web. This has sparked a robust re-examination of the modern university’s mission and its role within networked society."

And from the page at the Pew Center introducing the 43-page report:
The future impact of the Internet on higher education: Experts expect more-efficient collaborative environments and new grading schemes; they worry about massive online courses, the shift away from on-campus life

Tech experts believe market factors will push universities to expand online courses, create hybrid learning spaces, move toward ‘lifelong learning’ models and different credentialing structures by the year 2020. But they disagree about how these whirlwind forces will influence education, for the better or the worse.
For background see this March 6, 2006 ILB entry headed "Will doctors and lawyers be next?" that concludes:
A few hundred years ago, religion changed with the printing press -- citizens gained access to "the word" and some sought to interpret it for themselves. The Internet is similarly opening up specialized repositories of knowledge and changing many trades and professions forever.
See also this entry today from the blog Fort Wayne Observed re the changes at the Indianapolis Star.

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

Ind. Courts - "Local courtroom one of three in state testing video transcripts"

Supplementing the July 25 ILB entry quoting WRTV6 "on the pilot project that will soon begin in select courtrooms around the state," there is this very informative story today by Ron Wilkins of the Lafayette Journal-Courier. Some quotes:

Cameras in Indiana courtrooms have long been verboten, but three courts in Indiana received the blessing of the state appellate court to use video cameras with the explicit instructions to record everything.

Those courts will be recording anytime they’re on the record as part of a pilot program to test the efficiency of video transcripts from various discipline of the law. The idea is to generate enough appeals from each court to determine if the transcripts speed up the appeals process and cuts taxpayer expenses.

“They picked three courts in the state, and I have a lot of appeals,” Tippecanoe Superior 3 Judge Loretta Rush said. “It’s to shorten the time and save the cost.”

Tippecanoe Superior 3 will test appeals in family law; Allen Superior Judge Nancy Boyer’s courtroom will be the pilot for civil case appeals, and Marion Superior Judge Mark Stoner will test the criminal appeals.

During this pilot program, video transcripts will completely replace written transcripts. * * *

Currently, when an appeal is filed, the attorneys submit a paper transcript of the trial and reference the parts where it is believed there were procedural errors. Paper transcripts are expensive to produce and can take up to 90 days to create.

For Rush’s court, which often hears parental rights termination, that means a child’s life is on hold for 90 days and beyond as the transcript and appeal is perfected.

With the video transcript, speeding up the process is as simple as burning a DVD of the trial and giving it to the attorney handling the appeal. That saves taxpayers the expense of paying someone to type a verbatim account of the record. It also means that attorneys don’t have to wait 90 days for the transcripts.

Attorneys filing appeals can reference a time stamp on the video to make their argument of a procedural error. * * *

“We have a (appellate court) panel that’s going to exclusively have these cases, and they’re the ones who are going to report,” Boyer said. “They’re the one that’s going to get these video transcripts. I think they want to see how it will work with each area of the law.

“I’m anticipating the program is going to last in excess of a year.”

Indiana trial judges aren’t sold on the idea of video transcripts – hence the pilot program. * * *

Video transcripts don’t interfere with Indiana’s open records, either. The public or reporters can receive a video transcript with a simple request, and reporters will have it in time to make deadline.

Maddox noted that Louisville television stations frequently broadcast images from the transcripts, but Boyer suggested that won’t be the case in Indiana’s pilot program.

“They would be under an order that they can’t broadcast that,” Boyer said, “We still have the rules prohibiting cameras in courtrooms.”

But, she noted, the video could be used for reporting quotes and the court’s proceedings.

At the end of this pilot program, the appellate court will decide what the role of video transcripts will be in the state, Boyer and Maddox said.

Re the pilot program, one attorney writes:
I'm all for video transcripts if they are accompanied with a paper one. If I only get a video transcript, though, it's going to take me a lot longer to do an appeal. Although the state public defender rate is only $60/hour, I wonder how much cost savings will actually be realized.
See also this post today from the Law Librarian Blog that concludes:
Moving forward some 200-plus years, take the case of the SCOTUS heathcare proceedings as an example. Differing nuances of the the healthcare oral arguments and questions from the bench have been noticed by law profs who opined different opinions based on whether they relied solely on the written transcript or also listened to the audio.

Shouldn't court proceedings ... in the 21st century be format neutral? It is not a matter of boring the American public to death. It is a matter of providing as complete an offical public record as possible. Imagine practitioners, law profs and law students have access to official transcripts and equally official video recordings available for research and interpretation. That is certainly doable with today's technology and will, in my opinion, undoubtly be incorporated by commercial legal vendors in their enhanced electrontic products even if not deemed official evidence of the record. Citing to and incorporating by providing links to official videos of judicial and legislative proceedings will be common in court pleadings and secondary literature someday just as videos from patrol car cams are already used as evidence in DUI cases.

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

Courts - From Texas: "Endorsements point to sharp differences in state Supreme Court hopefuls Medina has established political connections; Devine has support of religious, conservatives"

Interesting contrast with Indiana, this story from the Austin Statesman by Chuck Lindell begins:

In Tuesday's GOP runoff for a seat on the Texas Supreme Court, each candidate's list of endorsements highlights the differences between them.

Incumbent David Medina, on the state's highest civil court since 2004, boasts support from Gov. Rick Perry, six retired Republican Supreme Court justices, 22 members of the Texas Legislature or U.S. Congress and several politically influential groups, including Texans for Lawsuit Reform and the Texas Medical Association.

Challenger John Devine, a former district judge, boasts support from members of prominent religious and conservative groups, including Eagle Forum, Concerned Women of Texas and Liberty Institute, which fights legal battles on behalf of Christian priorities and issues.

"You can tell a lot about a candidate by the endorsements they get," Donna Garner, a conservative activist, wrote on Devine's campaign website. "John P. Devine is endorsed by true patriots while his opponent is endorsed by politicians." * * *

Medina has served as litigation counsel and associate general counsel for Cooper Industries and became the governor's general counsel in 2004. Later that year, Perry appointed Medina to the Supreme Court, where he wrote 43 majority opinions in his first seven years — about average production on the court.

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

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

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

From Sunday, July 29, 2012:

From Saturday, July 28, 2012:

Posted by Marcia Oddi on Monday, July 30, 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 7/30/12):

Next week's oral arguments before the Supreme Court (week of 8/6/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/30/12):

Next week's oral arguments before the Court of Appeals (week of 8/6/12):

Monday, August 6

Tuesday, August 7

Wednesday, August 8

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, July 30, 2012
Posted to Upcoming Oral Arguments

Sunday, July 29, 2012

Courts - More on: 3rd Circuit rules "Pay-for-delay drug settlements are illegal"

Updating this ILB entry from July 17th, Edward Wyatt reported July 26th in a story headed "For Big Drug Companies, a Headache Looms" in the NY Times that begins:

WASHINGTON — It would seem a business executive’s dream: legally pay a competitor to keep its product off the market for years.

Congress has failed to stop it, and for more than a decade generic drug makers and big-name pharmaceutical companies have been winning court rulings that allowed it.

Until this month. On July 16, a federal appeals court in Philadelphia issued a decision that the arrangement is anticompetitive on its face. It potentially sets up a confrontation before the United States Supreme Court. If it were to accept the case, the outcome could profoundly affect drug prices and health care costs.

The Philadelphia ruling by the Third Circuit Court of Appeals conflicted with decisions from at least three other federal circuit courts, giving the Supreme Court a strong reason to hear the case within the next few years.

“The Third Circuit has rebalanced the issue and teed it up for the Supreme Court,” said Eleanor M. Fox, an antitrust expert and professor at the New York University Law School. The agreements between generic and branded drug manufacturers “are cases of competitor collaboration, which the Supreme Court has called ‘the supreme evil of antitrust.’ ”

The stakes are enormous for brand-name drug makers, which would face lower profits, and for pharmacies, insurance companies and patients, who could benefit from the savings.

Posted by Marcia Oddi on Sunday, July 29, 2012
Posted to Courts in general

Environment - "The plight of Grand Lake St. Marys should have served as a cautionary tale for Hoosiers about the need to protect the water quality in Indiana lakes"

That is a quote from the beginning of a long July 27th editorial in the Fort Wayne Journal Gazette. It concludes:

According to state natural resources officials, blue-green algae blooms began appearing in Indiana in 2001 but have only started to cause concern in the last couple of years.

This summer’s heat and drought are exacerbating the problem.

Despite witnessing the loss of recreational opportunities and tourism dollars, plus the high costs of battling the toxic algae overgrown in Ohio, Hoosier lawmakers have failed to take action to prevent the problem from taking hold in Indiana. A common-sense bill proposed by Republican Rep. Dick Dodge to limit residential use of fertilizers containing phosphorus was largely ignored.

Many environmental advocates also say that state rules governing the way the state’s large livestock operations handle manure don’t go far enough in protecting the state’s waters from pollution.

Hot and humid summers are nothing unusual in Indiana. The joy and relief of taking a cool dip in one of the many nearby lakes to escape the heat will soon be replaced by the fear of toxic algae if state leaders don’t make protecting Indiana lakes a more pressing priority.

Here is a long list of earlier entries on the issues with Ohio's Grand Lake St. Marys.

Posted by Marcia Oddi on Sunday, July 29, 2012
Posted to Environment

Law - "Justice Department trains prosecutors to combat cyber espionage"

A long story by Sari Horwitz in the July 25th Washington Post. A quote:

“We are very vulnerable,” John Carlin, the principal deputy in Justice’s national security division, said in an interview. “Terrorists groups are saying publicly want they want to do – knock down the stock exchange and disrupt the electrical grid. We need to be more focused on this threat and we need to be ready.”

Justice lawyers are grappling with two distinct categories of national security threats from the Internet. One danger is from terrorists plotting full-scale cyber attacks and the other comes from hackers, cyber criminals and foreign governments stealing trade secrets from the private sector and sensitive classified information from the military and government agencies.

“Other than a weapon of mass destruction going off in one of our major cities, this is the most significant threat to our economy and national security,” said Shawn Henry, who just retired as the FBI’s top cyber sleuth, and now works with companies infiltrated by foreign intelligence services. “The amount of electronic espionage going on is unprecedented.”

Posted by Marcia Oddi on Sunday, July 29, 2012
Posted to General Law Related

Saturday, July 28, 2012

Ind. Decisions - Collected entries: Should we require corroborating evidence when certain offenses are supported only by the testimony of a single witness?

Since there was such interest in this topic, I've created an ILB "Category" for the Leyva discussion to make it simple to retrieve all the related entries.

Hereafter, if you click on the new category "Leyva Discussion," located at the bottom of this entry, and also in the list of "Categories" always present in the right column of this blog, you will retrieve a list of all Leyva entries, with links.

Posted by Marcia Oddi on Saturday, July 28, 2012
Posted to Leyva Discussion

Friday, July 27, 2012

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

In Lapsley, et al v. Xtek (ND Ind. Van Bokkelen), a 32-page opinion, Circuit Judge Hamilton writes:

This appeal arose from an accident at a steel rolling mill that permanently disabled one of the workers there. The circumstances of that accident were unusual. Industrial grease was propelled in a jet with enough energy to penetrate and pass through the human body like a bullet. That jet hit and disabled plaintiff Leonard Lapsley. At trial the jury found that the accident was caused by a design defect in a heavy industrial product designed and manufactured by defendant Xtek, and sold and installed in the mill. That equipment contained an internal spring that could exert over ten thousand pounds of force. The jury accepted the theory of plaintiffs’ expert witness, Dr. Gary Hutter, that the spring was the culprit mechanism behind the accident and that an alternative design of a thrust plate in the equipment would have prevented the disabling accident. Xtek has appealed, challenging the district court’s denial of its Daubert motion that sought to bar Dr. Hutter from offering his expert opinions, which were essential to the plaintiffs’ case.

The purpose of the Daubert inquiry is to scrutinize proposed expert witness testimony to determine if it has “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field” so as to be deemed reliable enough to present to a jury. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). A Daubert inquiry is not designed to have the district judge take the place of the jury to decide ultimate issues of credibility and accuracy. If the proposed expert testimony meets the Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to be tested before the jury with the familiar tools of “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993). Once the district court has adequately applied the Daubert framework, our review of the determination to admit or exclude the evidence is deferential. E.g., United States v. Lupton, 620 F.3d 790, 798-99 (7th Cir. 2010) (affirming exclusion of expert testimony); see also Kumho Tire, 526 U.S. at 152 (reversing court of appeals decision that failed to accord sufficient discretion to district court that admitted expert testimony). In this case, the district court’s stated analysis of the proposed testimony was brief, but it was also directly to the point and was sufficient to trigger deferential review on appeal. We affirm the judgment of the district court. the district court’s denial of its Daubert motion that sought to bar Dr. Hutter from offering his expert opinions, which were essential to the plaintiffs’ case. * * *

The accident that disabled Leonard Lapsley appears to have been unprecedented, and fortunately it has not been repeated with other millwrights. The uniqueness of an accident can weigh against jury findings of foreseeability and lack of reasonable care in design, but that is a matter for the jury to decide. The jury here accepted Dr. Hutter’s uncontradicted expert opinion that a reasonable designer would have considered the danger of the powerful spring being bound up unexpectedly and releasing its energy so as to act like a ram on the grease in the spindle assembly. Rule 702 provides a test of reliability, not of ultimate merit. District courts acting as gatekeepers of scientific, technical, or specialized knowledge evidence retain significant discretion under the flexible Daubert inquiry. The district court here did not misapply Daubert, and Xtek has identified no compelling reason to disturb the court’s exercise of its discretion.

The judgment of the district court is AFFIRMED.

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

Ind. Decisions - One today from the Supreme Court

In In the Matter of Thomas E. Q. Williams, a 3-2 Per Curiam opinion in an Attorney Discipline Action, the majority writes:

We find that Respondent, Thomas E. Q. Williams, engaged in attorney misconduct by charging an unreasonable attorney fee to an elderly client, converting funds belonging to the client, and related misconduct, aggravated by his dishonesty in denying under oath that the funds he took from the client as her attorney in fact were for legal services after stating under oath in a prior civil suit that they were for attorney fees. For this misconduct, we suspend Respondent for two years without automatic reinstatement. * * *

We reject Respondent's attempt to deny that the money he paid himself from M.D.'s funds were for attorney fees in the face of his own repeated contrary assertions in the civil suit and his response to M.D.'s grievance. We conclude that in making these payments to himself, he was charging M.D. attorney fees for purported legal services and that he is subject to the Rules of Professional Conduct and Admission and Discipline Rules. * * *

We find clear and convincing evidence that Respondent violated Rules 1.5(a), 1.7, 1.8(a), and 1.15. Regarding the charge that Respondent violated Rule 8.4(b), we note that Respondent wrote checks to himself totaling approximately $100,000 from his frail and elderly client's account, consuming approximately one-third of her estate. He had no written documentation to memorialize any work performed for the client. Although he first maintained that his withdrawal of the $100,000 was for legal services performed, he changed his explanation mid-litigation to claim that they constituted her voluntary assistance to him as an author. (In this regard, he says that he left law practice in the early 1990s to take up writing.) We find Respondent's abandonment of his claim that the $100,000 was for legal services, combined with his wholly incredible claim that it was a gift, sufficiently probative of the Commission's charge that Respondent violated Rule 8.4(b) by committing a criminal act (conversion) that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer. * * *

We also find the following additional facts in aggravation: (1) Respondent's groundless attacks on M.D. and others associated with her when she attempted to obtain the accounting to which she was legally entitled; (2) his dishonesty in denying under oath in this case that the funds he took from M.D. were for legal services after he repeatedly and unequivocally stated under oath in the civil suit that they were for attorney fees; and (3) his lack of remorse for any of his misconduct. * * *

Nevertheless, we conclude that disbarment is not an effective discipline in the unique circumstances of this case. According to Respondent, he has essentially withdrawn from the practice of law since the early 1990's. Thus, from his vantage point, disbarment is a non-event—it would simply prohibit him from doing that which he has not done for nearly two decades. And because disbarment is permanent, he would have no incentive to come to grips with the pain and suffering he has wrought. * * *

In lieu of disbarment, we choose to follow the hearing officer's recommendation of suspension without automatic restatement, and conclude that a minimum period of two years is warranted. * * *

Dickson, C.J., and Rucker and David, JJ., concur.
Sullivan, J., dissents with separate opinion, with which Massa, J., concurs. [on p. 9 of 9] The Court says that each of three ABA Standards for Imposing Lawyer Sanctions calling for disbarment “obtains” in this case but then imposes a lesser sanction. I believe that disbarment is the appropriate sanction here and so respectfully dissent. * * *

I would not provide an opportunity to return to practice to a lawyer who, after helping himself to his frail and elderly client’s money, says the money was a gift after his first explanation that it constituted payment for legal services was rejected by a court.

Posted by Marcia Oddi on Friday, July 27, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 9 NFP)

For publication opinions today (6):

In Ronald Davis v. State of Indiana , a 10-page opinion in which in which Ronald Davis appeals a 245-year prison sentence imposed after his conviction on four counts of felony murder and other charges (the "Hovey Street homicides"), Judge Friedlander concludes:

We agree with the State and the trial court that Davis is a dangerous person from whom society must be protected. In light of Davis’s character and the particularly heinous nature of the crime, we conclude that his 245-year sentence is not inappropriate. Judgment affirmed.
In John Cherry v. State of Indiana , a 16-page, 2-1 opinion, Judge Bradford writes:
Appellant-Defendant John Cherry appeals from his convictions of and sentences for Class B felony Aiding, Inducing, or Causing Dealing in Heroin1 and Class D felony Unlawful Possession of a Syringe. As restated, Cherry contends that the trial court abused its discretion in admitting certain evidence, the State failed to produce sufficient evidence to sustain his convictions, the trial court abused its discretion in denying his mistrial motion, and his sentence is inappropriately harsh. We affirm. * * *

CRONE, J., concurs.
VAIDIK, J., concurs in part and dissents in part.

I respectfully dissent from the majority’s conclusion that the evidence is sufficient to support Cherry’s conviction for Class B felony aiding, inducing, or causing dealing in heroin. Because I believe that the evidence is insufficient to prove that the substance in the balloons that Quick swallowed was actually heroin, I would reverse Cherry’s conviction.

The identity of a drug is an essential element of a crime that the State must prove beyond a reasonable doubt. * * *

Simply put, there was no testimony in this case of someone sufficiently experienced with the drug indicating that the substance in the balloons was indeed a dangerous drug. ... No police officer identified the substance in the balloons as heroin. And even though Quick and Cherry may have been hard-core heroin junkies, because Quick and Cherry never tested or even saw the substance in the balloons, there was no testimony in this case that the substance in the balloons was actually heroin. I would therefore reverse Cherry’s conviction for Class B felony aiding, inducing, or causing dealing in heroin. I otherwise concur with the majority as to Cherry’s conviction and sentence for Class D felony unlawful possession of a syringe.

In Phillip L. White v. State of Indiana , an 8-page opinion, Judge Najam writes:
Phillip L. White appeals the post-conviction court’s denial of his petition for post-conviction relief. White raises a single issue for our review, namely, whether he received ineffective assistance from his appellate counsel when his appellate counsel did not raise as an issue on direct appeal whether White’s conviction for felony murder was unconstitutional under Article I, Section 16 of the Indiana Constitution (“the Proportionality Clause”). We affirm. * * *

In sum, White cannot demonstrate that his appellate counsel’s performance was deficient. Hence, he likewise cannot demonstrate that he received ineffective assistance from his appellate counsel. We affirm the post-conviction court’s judgment denying White’s petition for post-conviction relief.

In Kathleen K. Peterink v. State of Indiana , an 8-page, 2-1 opinion, Judge Friedlander writes:
Peterink challenges the sentence imposed, presenting two issues for our review:

1. Is the sentence imposed contrary to Ind. Code Ann. § 35-50-3-1 (West, Westlaw current through legislation effective May 31, 2012)?
2. Is a defendant serving time on home detention as part of probation entitled to good time credit? * * *

As noted by the Jennings court, we have before held that for purposes of I.C. § 35-50-3-1(b), the “term of imprisonment” includes both the executed and suspended portions of a sentence. Jennings v. State, 956 N.E.2d at 206 (citing Collins v. State, 835 N.E.2d 1010 (Ind. Ct. App. 2005)). Thus, as in Jennings, here, the trial court sentenced Peterink in excess of the statutory maximum (i.e., one year) when it sentenced her to a one-year suspended sentence and one year of probation. While we recognize that there is a split among the judges of this court regarding the interpretation of I.C. § 35-50-3-1, we decline the State’s request to revisit the Jennings decision. We therefore reverse the sentence imposed by the trial court and remand for resentencing. * * *

Here, the State concedes that Peterink is entitled to goodtime credit and we think a fair reading of the statutes taken together leads to that result. The trial court’s order to the contrary is reversed. The trial court is instructed to amend its sentencing order to allow for credit time. Judgment reversed and remanded for resentencing.

MAY, J., concurs.
BARNES, J., concurs in part and dissents in part. [which begins] I concur in part two of the majority opinion but respectfully dissent from part one. I do not agree with the holding in the Jennings case cited by the majority, at least to the extent it holds that for purposes of determining whether a misdemeanor sentence exceeds the one year limitation found in Indiana Code Section 35-50-3-1(b), a sentence such as the one here that orders a term of one year suspended, to be served on probation, is actually the equivalent of a two-year sentence.

In Andre Graham v. State of Indiana , an 11-page opinion, Judge May concludes:
Graham’s federal and state constitutional rights were not violated during the traffic stop that resulted in his arrest for possession of and intent to deal hydrocodone and cocaine. As Graham testified he intended to deliver the drugs in his possession, there was sufficient evidence to prove he committed Class A felony dealing in cocaine and Class B felony dealing in a Schedule III substance. Accordingly, we affirm.
In Dale Brenon v. The 1st Advantage Corp, d/b/a Omega Insurance Services, an 11-page opinion, Judge Friedlander concludes:
In summary, the Board’s decision dismissing Brenon’s claim for worker’s compensation benefits is not sustainable under the doctrine of collateral estoppel, the laws of the State of Wisconsin, or Supreme Court precedent. Further, the Board’s decision gave no effect to the reservation of rights clauses contained in the settlement agreements. We therefore reverse the Board’s dismissal of Brenon’s claim and remand for further proceedings. Judgment reversed.
NFP civil opinions today (3):

The Carl Kaetzel Trust U/T/D December 10, 1977, The Roberta Kaetzel Trust U/T/D December 10, 1977 and Carl Kaetzel, Roberta Kaetzel, et al v. Jon Marc Kaetzel and Beverly Kaetzel (NFP)

In Re the Term. of the Parent-Child Rel. of S.S.; D.S. v. Department of Child Services (NFP)

Craig Watts v. Betty (Watts) Lankford (NFP)

NFP criminal opinions today (6):

Damon Tyree Johnson v. State of Indiana (NFP)

Joshua A. Willey-Rumback v. State of Indiana (NFP)

Chad A. Jeffries v. State of Indiana (NFP)

Anthony Ramirez v. State of Indiana (NFP)

Michael S. Dornbusch v. State of Indiana (NFP)

Tarrance Battle v. State of Indiana (NFP)

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

Ind. Decisions - Three more Supreme Court opinions posted, dated yesterday, July 26th

In Indiana Dept. of Revenue v. Miller Brewing Co., a 9-page, 4-1 opinion, Justice Massa writes:

This appeal is the latest iteration of a decade-long dispute between the Miller Brewing Company and the Indiana Department of Revenue over Miller’s Indiana adjusted gross income tax liability. The Department here appeals the Tax Court’s determination that Miller owes no tax on certain sales to Indiana customers. We reverse. * * *

The Tax Court determined that Example 7 was an administrative rule with the force of law and that it operated to exempt Miller from liability for Indiana tax on income from sales of goods delivered by common carrier to Indiana customers. We find that this determination was clearly erroneous and hold that Example 7 does not have the force of law. Accordingly, we reverse the decision of the Tax Court.

Dickson, C.J., Sullivan, and David, JJ., concur.
Rucker, J., dissents with separate opinion. [which concludes] “When a summary judgment involves a question of law within the particular purview of the Tax Court, cautious deference is appropriate.” Ind. Dep’t of State Revenue v. Bethlehem Steel Corp., 639 N.E.2d 264, 266 (Ind. 1994). This Court will set aside the Tax Court’s determinations of tax law on summary judgment only if it is definitely and firmly convinced that an error was made. Id. I am not convinced an error was made here. Applying our cautious deference standard of review I would affirm the judgment of the Tax Court. Therefore I respectfully dissent.

In Douglas Cottingham v. State of Indiana, a 7-page, 5-0 opinion, Justice Sullivan writes:

Douglas Cottingham was placed on home detention under the supervision of a community-corrections program before a 2010 amendment to Indiana Code section 35-38-2.6-6 took effect. He argues that he is entitled to “good time credit” for his time served on home detention pursuant to that statutory amendment. We conclude that the statutory amendment does not apply to him. * * *

As an initial matter, we note that there is a conflict in the Court of Appeals concerning this issue, cf. Brown v. State, 947 N.E.2d 486 (Ind. Ct. App. 2011) (holding that amended statute does not apply retroactively), trans. denied,1 and because of this conflict, we too refrain from disposing of this issue on the basis of waiver, see Cottingham, 952 N.E.2d at 248 (addressing this issue despite waiver).

This appeal and others have stemmed from the Legislature’s 2010 amendment to the Indiana Code section concerning good-time-credit eligibility for persons placed on home detention in community-corrections programs. * * *

Based on the language of this statute, we hold that the amendment to Indiana Code sec-tion 35-38-2.6-6 applies to those who are placed on home detention on or after its effective date. Cottingham was placed on home detention before the statute’s effective date and so he is not eli-gible for good time credit.

Suppose, however, an offender committed an offense before the statute’s effective date and was placed on home detention but not until after the statute’s effective date. This offender is eligible for good time credit under the rule announced in this case. Accord Arthur v. State, 950 N.E.2d 343, 346 (Ind. Ct. App. 2011) (concluding that offender placed on home detention on July 30, 2010, after trial court modified commitment from work release to home detention was entitled to earn good time credit), trans. denied. In this respect, the “is placed” rule announced in this case operates as an exception to the general rule that the credit time statutes applicable in respect of an offense are those in force on the date the offense was committed. Purcell, 721 N.E.2d at 222 n.2.

The judgment of the trial court is affirmed.

In Robert Smith v. State of Indiana, a 9-page, 5-0 opinion, Justice Sullivan writes:

Robert Smith was placed on home detention under the supervision of a community-corrections program in January, 2010. He argues that the introduction of certain hearsay evi-dence at the hearing revoking his community-corrections placement violated his due process right to confrontation. Because we conclude that the hearsay evidence introduced at the hearing was substantially trustworthy, we affirm the judgment of the trial court. * * *

The trial court held a bifurcated hearing on the alleged violations on June 10 and June 24, 2010. During these hearings, the State of-fered into evidence State’s Exhibit 1,1 which consisted of five lab reports showing that Smith had tested positive for cocaine and marijuana on five separate occasions and an affidavit from Megan R. Jones, who was the supervisor at the lab that performed Smith’s drug tests, attesting to the positive results of those tests. Smith objected to the admission of State’s Exhibit 1 on the grounds that it denied him his due process right to confrontation and that it was not reliable be-cause it spoke only to the general lab procedures and not to the specific test results in this case. * * *

We therefore reject Smith’s argument that his due process right to confrontation in revocation hearings requires confrontation as defined in Crawford.

Our inquiry does not end there, however. We must now address whether Smith’s due process right to confrontation was in fact violated by the admission of State’s Exhibit 1. In doing so, we consider whether the evidence supports the trial court’s finding that State’s Exhibit 1 was substantially trustworthy (or in the trial court’s terms, reliable). See, e.g., Reyes, 868 N.E.2d at 442 (considering whether the evidence adequately supports the finding that hearsay affidavits were substantially trustworthy). We conclude that it does. * * *

After reviewing the record, we conclude that the evidence adequately supports the trial courts findings that State’s Exhibit 1 is substantially trustworthy. Cf. Reyes, 868 N.E.2d at 442 (affidavits found to be substantially reliable when the affiant was director of lab, was familiar with procedures employed to ensure chain of custody and validity of testing, and had reviewed records with regard to drug test at issue). Thus, Smith’s due process right to confrontation was not violated by the admission of this exhibit.

We affirm the judgment of the trial court.

Posted by Marcia Oddi on Friday, July 27, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Status of the constitutional challenge to the Indiana Choice Scholarship Program

Indiana Legislative Insight's issue for the upcoming week has this note on variables facing budgetmakers this year:

One more potentially interesting variable: our sister newsletter, INDIANA EDUCATION INSIGHT, reported last week that in its motion to transfer to the Indiana Supreme Court, the Office of the Attorney General urged the justices to resolve the constitutional challenge to the state's Choice Scholarship Program "well before" the start of the 2012-13 school year for the sake of children, parents, and schools – and, we might add, for lawmakers. The Supreme Court granted the motion to transfer back in March (before Randall Shepard retired as chief justice), allowing the case to bypass the appellate court, but four months have now passed, and oral argument has not been scheduled (and bear in mind that yet another justice – a former state budget director himself, who understands the intricacies of the budget and school finance – is slated to retire by late September). Parents who must soon decide whether to apply to the program cannot be certain that scholarships will be available "because of the cloud of legal uncertainty created by this litigation," insists Indiana Solicitor General Tom Fisher in the state's motion to transfer. Fisher beseeched the Supreme Court to act with "speedy determination" to "dissipate that cloud in time for parents to have the certainty they need to plan for the coming school year." And while the direct fiscal impact would be minimal from any potential judicial kibosh on the choice scholarships themselves, the implications would be huge for the school finance formula and its philosophical underpinnings . . . and it would become even more confusing and disruptive to the process if lawmakers had to reopen the biennial budget mid-stream in 2014 (or in a special session next year) to address a Supreme Court directive on this. The decision to let so much time pass and likely have this issue heard and decided by two justices who were not on the Court when transfer was granted would seem to speak volumes about the level of importance the Supremes will place upon this high-profile challenge.
This ILB entry from March 16th quotes a press release the Supreme Court press office issued when it granted "a request that it take the appeal in Meredith v Daniels, the constitutional challenge to the Indiana Choice Scholarship Program, directly from the trial court."

Posted by Marcia Oddi on Friday, July 27, 2012
Posted to Ind. Sup.Ct. Decisions

Stage Collapse - "AP Interview: Ind. fair exec shadowed by tragedy"

Great interview by Charles Wilson of the AP. It begins:

INDIANAPOLIS (AP) — Cindy Hoye's life has revolved around fairs since she was a child growing up just 10 minutes from the Indiana State Fairgrounds, but for the past year, that lifelong love has been tainted by tragedy.

Now, the executive director of the Indiana State Fair Commission says she is trying to help the fair move beyond the shadow of last summer's catastrophic stage collapse, which killed seven people and injured dozens of others when high winds toppled the stage rigging as a thunderstorm approached.

Part of that shadow falls firmly across Hoye, who critics claim should have acted more quickly that August night to evacuate the thousands of fans swarming the temporary stage and the grandstand as they waited for country duo Sugarland to perform.

Hoye, who has spent 25 years at the fair including the last eight as director, won't talk about the decisions made that night, which form the nexus of lawsuits by survivors and victims' families. But she said the disaster haunts fair officials as they work to prevent it from happening again.

"You have to understand that this team out here has been devastated," Hoye told The Associated Press this week in her first interview since the collapse. "We don't take any of that lightly, that there have been people who have lost their lives, people who are forever impacted. There is not a moment that goes by in our planning that we don't think about what happened."

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

Law - "Chicago Debt-settlement firm to wind down business"

Ameet Sachdev's Chicago Law today has a long Chicago Tribune story headed "Debt-settlement firm to wind down business: Companies taking advantage of exception for lawyers who provide debt counseling." It begins:

A Chicago-based law firm specializing in consumer debt settlement that was sued by Illinois Attorney General Lisa Madigan plans to wind down its business nationally, its general counsel confirmed Thursday.

Legal Helpers Debt Resolution LLC agreed to refund $2.1 million to its Illinois customers under a settlement announced this month after the attorney general had alleged the company was not living up to its name. Rather than providing legal help, the lawyers were a "front" to collect hefty fees from struggling consumers, Madigan said.

Legal Helpers denied wrongdoing but also agreed to stop accepting more Illinois clients under the settlement.

Jason Searns, the firm's general counsel, said publicity surrounding the lawsuit and settlement has made it hard for Legal Helpers to attract new customers outside Illinois, and the decision was made to cease operations after servicing its existing clients. The company operates in about 38 states.

The ILB checked the web to see if Legal Helpers practices in Indiana and received this information from its website.

First, in fine print at the bottom of Legal Helpers' main page, this:

Legal Helpers Debt Resolution, LLC does not practice law in the states of Indiana, Ohio, New York, New Jersey, North Carolina, Nebraska, Georgia, Texas or Arizona by that designation. Due to rules governing law firm advertising, all services are provided to residents in the above states through the partnership of Macey Aleman Hyslip & Searns. Any office location mentioned for these states is an office of Macey Aleman Hyslip & Searns.
Then on its "locations" page, I found an East Market Street, Indianapolis location for Legal Helpers.

This March 2, 2011 story from the Chicago Tribune begins:

A Chicago-based debt-settlement company used lawyers as a "front" to illegally collect massive fees from financially struggling consumers who were seeking help, Attorney General Lisa Madigan alleged Wednesday.

Madigan filed a lawsuit Wednesday against the national firm Legal Helpers Debt Resolution, based at 233 S. Wacker Drive.

The company, also known as the law firm Macey, Aleman, Hyslip & Searns, charged upfront fees for debt-consolidation services, which became illegal in Illinois last year, the lawsuit alleges.

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

Ind. Decisions - Yet more on: Is it time to consider whether we should require corroborating evidence when certain offenses are supported only by the testimony of a single witness? [Updated with response]

ILB Note: Mr. Jerrells sent an entry last evening, and Ms. Wieneke sent a response this morning, so I am posting them together.

Attorney Joby Jerrells sends this in response to my call for thoughts on Judge Baker's dissent in Leyva:

Though my primary practice area is no longer appellate practice, I continue to follow appellate law. Looking at the Penn decision, our Supreme Court specifically rejected a “special rule” requiring corroboration. Instead, the Court found the testimony was so “improbable and incredible” that a reasonable person could not find guilt beyond a reasonable doubt. In my view, Judge Baker is simply saying that he would find the evidence insufficient in this case and believes it is time to revisit whether corroborative evidence is required. As attorneys, we all certainly have different ideas about whether corroborative evidence should be required. In my view as an advocate, corroboration should not be required, whether in a criminal or civil case. The incredible dubiosity rule merely leaves open a sufficiency challenge in a criminal case, but only in “extremely rare” instances. As one reader aptly pointed out, a delay in reporting will typically result in a lack of corroborative physical evidence.

As for my friend and colleague Cara Wieneke’s post, videotranscripts will undoubtedly present many challenges for practitioners and courts alike. Should appellate courts raise issues sua sponte for parties after reviewing a videotranscript? Will videotranscripts open another avenue on post-conviction? While audio and video of witness testimony may be very telling, it says nothing of jury deliberations or the thought processes that the trier of fact has about that testimony. I firmly believe that jurors are able to judge their peers and apply common sense during criminal and civil trials. Serving as a juror as an attorney provided some real insight about the deliberative process. We attorneys often think we have thought of everything, but we are consistently surprised by juror questions during a case in chief. Deliberations are even more probing than questions of witnesses. Jurors often question testimony in ways the attorneys fail to anticipate or expect, connecting the dots between witnesses and other evidence in a novel manner. As such, videotrancripts should not alter appellate review.

My belief in jurors and their ability to assess witness credibility applies equally in cases raising an incredible dubiousity challenge: It is up to the jury to decide whether a witness is credible and the courts to decide whether that evidence is sufficient. Accordingly, stare decisis should prevail, even, literally, in the face of videotranscripts.

Attorney Cara Wieneke has sent a response this morning:
I appreciate Mr. Jerrells' respect for stare decisis and its importance in our system of justice. The belief that citizens should have some idea of how their disputes will likely be solved by the courts is necessary in our system. But an unfortunate effect of this belief is that our system is slow to change. Judge Baker in his dissent seems to acknowledge the fact that times have changed; forensic analysis, if done properly, has the capacity to greatly enhance our ability to judge guilt and innocence.

And, while I believe our system of justice, which allows us to be judged by our peers, is still the best system, the hundreds of exonerations that we have seen in the last few decades as a result of new technology cannot be ignored. Respectfully, juries sometimes (maybe more often than we like to admit) get it wrong. They misjudge credibility, or they are not provided with all the facts to make a reasoned decision.

Admittedly, as a woman it was difficult for me to accept Judge Baker's premise that women and children sometimes lie about these allegations. But as a criminal defense attorney, I know he is right. People do sometimes falsely accuse others of these offenses. I do not accept the premise, though, that these cases often do not have corroborating evidence. Prosecutors find that evidence and use it over and over again in the records that I read in these types of cases. It may take more investigation to find that evidence in some cases, but should we expect anything less given what is at stake?

Posted by Marcia Oddi on Friday, July 27, 2012
Posted to Ind. App.Ct. Decisions | Leyva Discussion

Courts - "Certainly one of the best things I've ever read about discovery. Highly recommended"

That high praise comes from Prof. Lawrence B. Solum of Legal Theory Blog, about Frederic Bloom's (University of Colorado Law School; Brooklyn Law School) Information Lost and Found (California Law Review, Vol. 100, No. 3, 2012.)

Posted by Marcia Oddi on Friday, July 27, 2012
Posted to Courts in general

Thursday, July 26, 2012

Ind. Courts - Dickson To Be Sworn In As Chief Justice of Indiana on August 6th

From the news release:

A formal, public oath ceremony to swear-in Brent E. Dickson as Chief Justice of Indiana will take place at the Indiana State House on Monday, August 6th at 10 a.m. EDT in the North Atrium, 2nd Floor. Governor Mitch Daniels will administer the oath.

In May 2012, the Indiana Judicial Nominating Commission voted to appoint Justice Brent E. Dickson as the Chief Justice of Indiana. The appointment was effective immediately and within hours, Justice Dickson was sworn-in as Chief Justice by his colleague, Justice Robert D. Rucker.

The August 6th investiture is the formal public ceremony marking the change in leadership on the Court. Chief Justice Dickson was appointed to the Court in 1986 as the Court’s 100th Justice. His full biography can be found here. Dickson is only the 4th permanent Chief Justice since the constitutional amendments of 1970. (Prior to that the CJ position rotated)

The ceremony will include remarks from Governor Daniels, Indiana Judges Association President Robyn Moberly, Representative Ralph Foley, Justice Theodore Boehm and Tippecanoe County Bar Association President Patti Truitt. As the next most senior member of the Court, Justice Rucker will preside over the ceremony. The event will not be webcast live, it will be videotaped and archived to the Court’s website at a later date.

The other three chief justices since 1970 were Norman Arterburn, Richard M. Givan (1974-1987), and Randall Shepard (1987 – March 23, 2012).

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

Ind. Decisions - Even more on: Is it time to consider whether we should require corroborating evidence when certain offenses are supported only by the testimony of a single witness?

In response to my call for thoughts on Judge Baker's dissent in Erasmo Leyva, Jr. v. State of Indiana, a deputy prosecutor from the north eastern part of Indiana writes:

I have a real problem with appellate courts substituting their judgment for that of the jury regardless of whether it is done from the "cold record" of a transcript or from a video tape of the trial. A trial by jury has its roots in the very founding of this great nation. I understand and appreciate the sufficiency of the evidence standard of review. However, appellate judges, who are not selected by the parties during jury selection nor elected as trial judges should not be substituting their judgment for that of the jury. Appellate review should not include the opportunity for the criminal defendant who has been afforded a fair and impartial trial to invite an unelected appellate judge in Indianapolis to second guess the jury's verdict.

Judge Baker's dissent is a very dangerous and slippery slope. Quite frankly, if a person says they were raped or a child said they were molested and the duly selected finder of fact, whether it be the jury or the bench, believes that victim, that is enough, regardless of what [Judge] Baker or anyone else has to say. That is why we have juries. For those who have prosecuted sex crimes, often times there is no corroboration. So what does that mean to Judge Baker, the perpetrator cannot be convicted?

Posted by Marcia Oddi on Thursday, July 26, 2012
Posted to Ind. App.Ct. Decisions | Leyva Discussion

Ind. Decisions - More on: Is it time to consider whether we should require corroborating evidence when certain offenses are supported only by the testimony of a single witness?

In response to this ILB entry yesterday from a prosecutor responding to Judge Baker's dissent in Erasmo Leyva, Jr. v. State of Indiana, attorney Cara Wieneke writes:

I have been following your entries on the Judge Baker dissent, and I think it is an interesting and timely discussion given your recent entry about the "Cameras in the Courtroom Pilot Program." One of your readers commented that it is unfair for Judge Baker to substitute his own experience and judgment based on a cold written record. So I have to wonder, had this trial been videotaped, whether the outcome might have been different. With cameras now being tested in courtrooms, no longer does the judge have only a cold record to read. Instead, s/he can view the demeanor of the witness herself and judge her credibility, just as the jurors did. It will be fascinating to see whether the standard of review changes now that appellate judges will be in the same position as the factfinder to assess credibility.

Posted by Marcia Oddi on Thursday, July 26, 2012
Posted to Ind. App.Ct. Decisions | Leyva Discussion

Ind. Decisions - The implications of today's decision in Bushhorn

Today's Supreme Court per curiam opinion in Roger L. Bushhorn v. State of Indiana is the subject of this analysis by Ind. University-Robert H. McKinney School of Law professor Joel Schumm:

Although issued as a per curiam opinion, Bushhorn is a very significant decision. Although I'm not at all surprised by the opinion based on the facts of the case and the justice’s questions and comments at oral argument, the case nevertheless marks the first time the Indiana Supreme Court has taken away a sentence reduction ordered by the Court of Appeals under Appellate Rule 7(B). It also highlights the potential end of an era where the Indiana Supreme Court was fairly active in reducing sentences under the leadership of Chief Justice Shepard and with Justice Sullivan as a constant ally. Although Justice Rucker often joined in reducing sentences, (now Chief) Justice Dickson frequently dissented, and Justice David has agreed with some reductions and disagreed with others. Justice Massa, in this opinion and in his dissent in Walker, a recent opinion that reduced a sentence, seems unlikely to reduce sentences on appeal.

I would look for the State to seek transfer more often in cases in which the Court of Appeals reduces a sentence. For many years before Chief Justice Shepard’s retirement, the State seldom sought transfer in sentence reduction cases, likely because it was clear transfer would not be granted. The Court of Appeals may now become more reticent to reduce sentences in light of this case and changes in Indiana Supreme Court membership, and appellate defense counsel may be more reluctant to seek a reduction, fearing the possibility of an increased sentence as authorized by McCullough.

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

Ind. Decisions - Is it time to consider whether we should require corroborating evidence when certain offenses are supported only by the testimony of a single witness?

Updating this ILB entry from yesterday, attorney Greg Bowes writes:

I am responding to your request for comments on the notion that “these type of offenses” might require corroborating evidence to the testimony of a single witness.

It is important to consider the context of how the rule developed to allow conviction from the uncorroborated witness. In Wedmore v. State, 237 Ind. 212, 220, 143 N.E.2d 649, 653 (1957), the Indiana Supreme Court determined that a prosecution witness in a statutory rape case need not first be examined by a psychiatrist to determine whether she is competent to offer uncorroborated testimony of the crime. It is scary to read the dissent in that case, which cited several psychiatrists and psychologists making such claims as “fantasies of being raped are exceedingly common in women, indeed one may almost say that they are probably universal.” 143 N.E.2d at 658. The trend, historically, is to presume all witnesses to be competent, as opposed to creating a presumption in sex crime cases that anyone making a claim of rape must be crazy. The majority in Wedmore places the judgment in the hands of the jury, where it belongs.

I like the incredible dubiosity rule. I like that it is used sparingly, because that gives juries primacy in our system of justice. In sex cases, many times there is no ability to corroborate with DNA or other physical evidence, and many times there is no second witness, other than the perpetrator. To require corroborative evidence in a case where the defendant admits sexual intercourse, but asserts it was consensual, relegates the victim’s testimony to a nullity. We should rely on our juries to weed out the false claims. To require corroborative evidence to support testimony of a single witness is likely to invalidate truthful as well as false claims.

And from Christopher Fronk, deputy prosecutor in LaPorte County:
Great topic for discussion. Just a few general thoughts:

Regarding the concept of “contrary to human experience”: There is a culture in this country that lives its entire existence contrary to the human experience of those who would ever be able to sit on the bench. As a prosecutor for 16 years, I have seen (and smelled) dwellings that defy belief. I have encountered uncontested fact patterns that boggle the mind and conduct that is beyond any ability to rationally understand. These things are the stuff that many crimes are made of. I do not think it appropriate or acceptable that a judge, even a great one, sitting far removed from the place and time and people involved in a case should supplant the judgment of a jury on the basis that the story as presented in a cold record just doesn’t mesh with that judge’s version of human experience.

A second, but related thought: To reverse a case based on incredible dubiosity, the court must necessarily determine that the entire jury was unreasonable. That is a big deal, and a slippery slope in a country where the jury of peers is the bedrock of our criminal justice system. Of course juries sometimes get it wrong, for various reasons, but we need to be very careful, as the courts have historically been, when treading in a jury’s domain.

Thirdly, regarding facts in “this kind of case”: When children are molested, there is often a delay in reporting. That delay is sometimes attributed to coercion by the accused, sometimes by shame on the part of the victim, and other more or less common causes. Those circumstances are understandable, but often lead to a lack of any physical evidence, even in light of advances in DNA and other forensic science. If the accused isolated the victim during the crime and does not confess, what evidence will there be? Many times these cases rise and fall on the victim’s ability to believably convey the facts to a jury, which is more than just the victim’s words. The burden of proof is exceptionally difficult to overcome under these circumstances, in order to get a guilty verdict in the first place. To have a judge months later decide that the jury was unreasonable in making that determination would be devastating in many ways to the individual involved in that case, and the prosecution of cases of this kind altogether.

Posted by Marcia Oddi on Thursday, July 26, 2012
Posted to Ind. App.Ct. Decisions | Leyva Discussion

Ind. Decisions - Two today from the Supreme Court, including J. Massa's first opinion, the Yamaha Zuma case

Roger L. Bushhorn v. State of Indiana, is a 4-page, 4-1 per curiam opinion that concludes:

Accordingly, we affirm the sentence imposed by the trial court and summarily affirm the decision of the Court of Appeals in all other respects. See Ind. Appellate Rule 58(A).

Dickson, C.J., and Rucker, David, and Massa, JJ., concur.
Sullivan, J., would deny transfer.

In Michael J. Lock v. State of Indiana, a 12-page, 4-1 opinion, Justice Massa writes:
Indiana’s motor vehicle statutes provide a carve-out through which individuals whose driving privileges are suspended may still commute—provided the device they use to do so meets certain requirements. One requirement is that the “maximum design speed” of such a device may not exceed twenty-five miles per hour.

When the only evidence admitted at trial as to this requirement is that the defendant was traveling forty-three miles per hour on a flat, dry surface, is that evidence sufficient to sustain his conviction? We think so. * * *

In a split opinion, the Court of Appeals reversed. Lock v. State, 952 N.E.2d 280, 281 (Ind. Ct. App. 2011). Without addressing the constitutional challenge, it found that the State’s evidence of the Zuma’s speed—standing alone—was too speculative to affirm a conviction. Id. at 283. We granted transfer, thereby vacating the opinion of the Court of Appeals. Lock v. State, 962 N.E.2d 650 (Ind. 2011) (table). * * *

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

Rucker, J., dissents with separate opinion. [which begins, at p. 11 of 12] Because I believe the State did not prove the elements of Class D felony operating a vehicle while suspended, I would reverse the trial court and not reach the constitutional issue. * * *

If the vehicle Lock was operating qualifies as a “motorized bicycle” then he was not operating a “motor vehicle” for purposes of the driving while suspended statute. We are thus required to determine what is meant by “maximum design speed.” * * *

The statute being thus construed, the actual speed Lock was traveling has no relevance to the question of “maximum design speed.” And having introduced no evidence indicating the speed at which Lock’s vehicle was designed to travel, the State failed to prove Lock was operating a motor vehicle within the meaning of Indiana Code section 9-30-10-16. Stated somewhat differently, the State had the burden proving the exception, namely: that the vehicle Lock was operating was not a motorized bicycle. The State failed to carry its burden. I would therefore reverse Lock’s conviction.

ILB: Here is some background. From the Upcoming Oral Arguments for April 16, 2012:
ILB: This was a 2-1, July 26, 2011 COA opinion where the majority wrote: "Lock argues the State did not prove he operated a motor vehicle, because his Zuma is a motorized bicycle, which, pursuant to Ind. Code § 9-13-2-105(d), is exempt from the provisions of the statutes regarding operation of a motor vehicle while privileges are suspended. We agree the State did not prove the Zuma was a motor vehicle; however, neither does the record before us permit us to hold the Zuma is a motorized bicycle. * * * We decline the State's invitation to relieve it of its burden to prove every element of a crime it prosecutes."
This April 20th ILB entry, headed "Is it a motor vehicle, or simply a motorized bike? For suspended drivers who get caught driving one, it could mean going to jail" quotes from several news stories.

And this May 3rd ILB entry points out that the oral argument on this case was in fact J. Massa's first appearance at an oral argument.

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

Ind. Law - "Murray Clark Named Leader of Faegre Baker Daniels' Indianapolis Offices"

Here is the news release.

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

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Denise A. Mertz a/k/a Denise A. Grimmer v. Robert G. Mertz , a 17-page, 2-1 opinion, Judge Vaidik writes:

Denise (Mertz) Grimmer (“Mother”) and Robert Mertz (“Father”), who have two children, were divorced in 1994. Over the course of these proceedings, Father’s child support obligation has been modified many times, and due to arrearages, Father’s driving privileges were suspended. The most recent court order modified his weekly child-support obligation to what amounts to half of his income: $49 for support, $62 for educational expenses, and the remainder toward his arrearage. In addition, because Father agreed to pay one-half of his income toward these amounts, his driving privileges were reinstated. On appeal, Mother contends that the trial court erred in modifying his child-support obligation and in reinstating Father’s driving privileges. We conclude that the trial court did not err in modifying Father’s child-support obligation. We also conclude that Father’s plan to pay one-half of his income toward his support obligation was a sufficient plan to warrant reinstatement of his driving privileges. We affirm. * * *

We recognize that Father’s arrearage is substantial—the trial court estimated Father to be at least $100,000.00 in arrears. Clearly, paying this arrearage in full will take many years, a fact the trial court acknowledged. However, the court also acknowledged that if Father is able to drive, the likelihood that he will continue to meet his support obligation increases. The trial court’s ultimate decision to reinstate Father’s driving privileges is in line with public policy. Our goal should be to ensure that an obligor meets his or her obligation and at times, the courts hold the key to incentivize — rather than discourage — continued employment to meet those obligations. Our Supreme Court has recognized that there may be a tipping point at which an obligor has no incentive to fulfill his or her support obligations. * * * Here, the trial court concluded that Father had established a plan to pay his arrearage and that reinstatement of his driving privileges made it more likely that Father would continue to meet his obligation. We conclude that the trial court did not err by reinstating Father’s driving privileges. Affirmed.

NAJAM, J., concurs.
ROBB, C.J., concurs in part and dissents in part with separate opinion. [which begins, at p. 14] I concur with the majority that the trial court did not err in modifying Father’s child support obligation as discussed in Part I, but respectfully dissent from its conclusion in Part II that the trial court did not err in reinstating Father’s driving privileges.

I agree with the majority that the language of section 31-16-12-11 is clear and unambiguous. Accordingly, deciding whether Father’s driving privileges could be reinstated is a question of law. It is not a question of weighing the evidence, but strictly a determination of whether the outcome is consistent with the legislative mandate. In order to have driving privileges reinstated, the statute requires as a matter of law that the obligor either pay the arrearage in full or establish a payment plan to pay the arrearage via income withholding order. Given that the two alternatives for reinstatement are to pay in full or establish a payment plan to pay, the “plain, ordinary, and usual meaning” of “a payment plan to pay the arrearage” is a plan that will pay the arrearage in full, not simply pay toward or pay down the arrearage. * * *

The statute requires “a payment plan to pay the arrearage” be established in order for the trial court to reinstate Father’s driving privileges. As Father’s plan will neither pay his arrearage nor does it require him to pay the maximum amount allowed by law, I would hold the trial court clearly erred in reinstating Father’s driving privileges. Accordingly, I dissent from Part II of the majority decision.

>In J. Michael Kummerer v. C. Richard Marshall , a 9-page opinion, Judge Vaidik writes:
J. Michael Kummerer appeals the trial court’s failure to award him prejudgment interest and its failure to grant his motion to correct errors. He contends that the decision to deny him prejudgment interest was contrary to law because contract damages could be determined by simple mathematical calculations. He also contends that the trial court abused its discretion in denying his motion to correct errors because the trial court did not make any findings of fact about whether damages were able to be determined by simple calculations before denying him prejudgment interest. Finding that prejudgment interest was not appropriate in this case because the trial court had to exercise its judgment in calculating damages, we affirm the trial court.
In Jeremiah Cline v. State of Indiana , a 16-page, 2-1 opinion with a dissent beginning on p. 9, Judge Bailey writes:
The Boone Circuit Court determined that Jeremiah Cline (“Cline”) is not required to register as a sex offender, but also determined that it lacked authority to order the removal of Cline’s name and information from the Indiana Sex Offender Registry (“the Registry”). Cline appeals and presents the sole issue of whether the trial court has authority to expunge Cline’s information from the Registry. We affirm. * * *

On July 26, 2011, Cline filed his “Amended Petition to Remove Petitioner From Sex Offender Registration Requirement.” (App. 20.) A hearing was conducted on July 27, 2011. On October 24, 2011, the trial court issued an order with specific findings. The trial court found that Cline had no obligation to continue to register as a sex offender, because application of the statutory change would constitute ex post facto punishment as to him. However, the trial court also found that it lacked authority to expunge Cline’s existing information from the Registry. This appeal ensued. * * *

Although Cline claims he will have to endure the stigma associated with registration even if he does not register in the future, the fact that Cline committed sex crimes is a matter of public record. We do not read the Wallace decision as broadly as does Cline; it does not insulate an offender from all punitive consequences associated with having committed his crimes. Furthermore, the statutory provision under which Cline sought relief does not include an expungement provision. We will not add such a provision. * * *

Cline has not demonstrated his entitlement to expungement as a judicial remedy; the trial court did not misapply the law. Accordingly, we affirm the trial court.

MATHIAS, J., concurs.
ROBB, C.J., dissents with opinion. * * *

This is a case about whether a person who should not have had to but was erroneously required to add his name and information to the registry in the first place is entitled to relief in the form of having his name and information removed. [ILB emphasis] The backdrop is Wallace, in which our supreme court held that the sex offender registration act was unconstitutional as applied to one who committed his offense before the act was enacted. See 905 N.E.2d at 384. Specifically, the court held that it “violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed.” Id. The General Assembly responded by amending Indiana Code section 11-8-8-22 to address the supreme court’s ex post facto concern.

Thus, this case is also about interpreting and applying section 11-8-8-22. This section is poorly written and confusing. Nevertheless, a logical reading of the following subsections of section 11-8-8-22 determines the fate of Cline’s petition. * * *

The majority also supports its decision, in part, by contending that removal of Cline’s name and information from the registry would be pointless because Cline’s convictions would remain part of the public record even if he receives the relief he seeks. This implies that the registry is not harmful or punitive, and perhaps is merely a replica of the already-public criminal history of offenders. Our supreme court concluded that the registry is punitive for its relative excessiveness, especially, as the majority points out, because as formulated at the time of Wallace, there was “no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure.” Slip Op. at 6 (quoting Wallace, 905 N.E.2d at 384). As the majority notes, section 11-8-8-22 might have partially or fully addressed this concern.

Regardless, the supreme court concluded the registry is punitive for other reasons too: because it “impose[s] substantial disabilities on registrants,” Wallace, 905 N.E.2d at 380, “resembles the punishment of shaming,” is “comparable to conditions of supervised probation or parole,” id. at 381, and it “promote[s] community condemnation of the offender,” id. at 382 (quotation omitted). Therefore, it is incorrect to suggest that removal of Cline’s name from the registry would be pointless. To the extent the majority construes Cline’s request as one to eliminate all punitive consequences associated with having committed his offenses, I believe that to be a different issue.

For these reasons, I respectfully dissent.

ILB: This issue was the focus of several ILB entries this spring, including this entry from April 22, 2012 with the dual heading: "Ensuring the integrity of the sex offender list" and "Marion County repairs sex offender registry."

NFP civil opinions today (2):

Arnold Blevins v. Raymond Arthur Brassart (NFP)

J.H. and T.G. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (5):

Timothy Stevenson, Jr. v. State of Indiana (NFP)

Fredrick D. Gaither v. State of Indiana (NFP)

Derrick Rockingham v. State of Indiana (NFP)

Douglas Chubb v. State of Indiana (NFP)

Maurice Ervin v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 26, 2012
Posted to Ind. App.Ct. Decisions

Envrionment - "ArcelorMittal Settles Toxic Waste Challenge" [Updated]

From the news release issued July 20 by Save the Dunes:

Valparaiso, Ind. -- Representing Save the Dunes and its members, the Hoosier Environmental Council (HEC) has settled a legal challenge with ArcelorMittal Burns Harbor, LLC (AMBH) and the Indiana Department of Environmental Management (IDEM) requiring one of the largest steel mills in North America to properly manage, control, monitor and clean up more than 3 million tons of toxic steel-making waste at its Burns Harbor facility.

The federal Resource Conservation and Recovery Act (RCRA) and Indiana's solid waste management laws prohibit open dumping of solid waste. Save the Dunes' petition alleged that AMBH and its predecessors open dumped industrial wastes and sludges very near Lake Michigan and the Indiana Dunes National Lakeshore.

Here is a very brief YouTube video (1:48) from The Hoosier Environmental Council that shows the waste piles that are at the center of the settlement.

Long-time readers of the ILB may remember a number of stories by Gitte Laasby, then of the Gary Post Tribune, that the ILB quoted and linked to in late 2009. Although they are no longer online at the newspaper, the HEC has pulled those stories together in this document.

Today Ryan Sabalow has a long, front-page story in the Indianapolis Star headed "Deal between environmentalists, state's pollution regulators, steel mill raises questions." Some quotes:

Last week, state environmental regulators, the steel mill's owners ArcelorMittal and two environmental groups reached a settlement that will require the mill to remove or recycle the waste and also to test the soil underneath to see if it has been contaminated with toxins.

But if this is a victory for environmentalists, they say the two-year legal fight that preceded it illustrates precisely what is wrong with the state agency tasked with enforcing state and federal environmental laws.

Kim Ferraro, a Valparaiso-based attorney representing the Hoosier Environmental Council and Save the Dunes, believes strongly that if the legal challenge had not been filed, IDEM never would have moved to require cleanup.

"I feel like I'm doing IDEM's job sometimes," Ferraro said.

Various environmental advocacy groups consistently rank Indiana among the worst in the nation for its air and water quality. One reason why, environmentalists contend, is that far too often powerful business interests have been given a free pass to pollute.

The situation at ArcelorMittal, though, is especially galling to some environmentalists. Thomas Easterly, who was appointed by Gov. Mitch Daniels to lead IDEM in 2005, previously worked for Bethlehem Steel, the mill's pervious owners.

And Easterly's job? He was the mill's environmental compliance chief from 1994 to 2000 -- at a time when the dumpsites grew taller and larger.

Some critics even refer to the large mound closest to the shore as "Easterly's Pile." At one point, environmentalists say, the mounds of refuse there towered as tall as 35 feet across an area that spread nearly 34 acres, almost to the water.

"Much of that waste was dumped with his knowledge -- and illegally dumped," Ferraro said. "To have the person in charge of a state agency regulating industry with that kind of history -- that should raise a cause for concern."

More from the story:
Agency spokeswoman Amy Hartsock, however, pointed out that this particular pile has been reduced to the point over years that she questions whether it should be described as a "pile" at all

Plus, she said, Easterly didn't put it there.

Hartsock said that dump site dates back to the 1980s, well before Easterly joined what was then Bethlehem Steel in 1994. * * *

Company spokeswoman Mary Beth Holdford said in a two-paragraph email that the settlement allows ArcelorMittal to move ahead with the Deerfield Storage Facility, a 75-acre onsite landfill for some of the waste that can't be recycled.

She called it "an environmentally beneficial project the company has been pursuing for several years as part of our long-term environmental strategy."

Scrutiny over the mill's waste first surfaced in a major way in 2009 when the Post-Tribune of Merrillville launched an investigation just as ArcelorMittal was applying to IDEM for a landfill permit to dispose of at least 1.5 million pounds of above-ground mill waste.

The next year, the environmental groups filed their challenge.

They alleged state and federal laws prohibit long-term dumping of solid waste, yet regulators since at least 1999 have acknowledged the mill's operators have been dumping it in above-ground piles.

Their legal filing also alleged that ArcelorMittal escaped public notification and scrutiny by filing an informal draft application for its new landfill in 2008.

But mostly the filing sought to force IDEM to require ArcelorMittal to clean up the site.

That it came to that -- multiple complaints from the public and a legal filing-- to push IDEM to start forcing polluters to clean up their act, Ferraro said, is a longstanding source of frustration.

But Hartsock, the IDEM spokeswoman, said it shows the process worked. Complaints from the public, she said, are often how IDEM learns of and addresses problems.

ILB: The ILB is hoping to obtain and post a copy of the settlement agreement.

[Updated] Here is the Settlement Agreement.

Posted by Marcia Oddi on Thursday, July 26, 2012
Posted to Environment

Vacancy #2 on Supreme Court 2012 - "Gov. Mitch Daniels urged to name woman to Indiana Supreme Court"

That is the headline to an editorial today in the Muncie Star-Press:

Message to Gov. Mitch Daniels: It’s time to name a woman to the Indiana Supreme Court.

In fact, it should have been done a long time ago. Indiana has had only one woman serve on the five member court — Myra Selby from 1995 to 1999. It’s high time another one was named to the bench. * * *

Why does it matter if a woman serves on the court?

That’s simple: A woman has a set of life experiences no male can ever have. And those experiences do count when handing down legal decisions from the bench.

Here’s another reason: Women make up at least half the population.

Shouldn’t that be reflected on the bench if the court is to be representative of everyone? Equality deserves more than lip service.

Daniels has been criticized in the past for naming two men to the high court during his term in office.

If one were to bet, smart money says to count on him naming a woman this time around.

Finally, gender diversity on the state’s high court would bring the state into the 21st century.

Daniels has been a leader unafraid of blazing new trails, of discarding business as usual. In this instance, he wouldn’t be breaking new ground, but returning the state to where it should never have strayed.

Posted by Marcia Oddi on Thursday, July 26, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind Courts - "LaPorte Judge rejects plea in DUI wreck"

Stan Maddum of the NWI Times writes in a brief story:

LAPORTE | A judge Wednesday expressed outrage that a LaPorte man who caused a traffic wreck after a long history of drunken driving offered to spend very little time behind bars.

"You're going to do 30 days in jail. That's it. That's what we get for this?" LaPorte Circuit Court Judge Tom Alevizos said before rejecting a guilty plea and rescheduling the case for trial.

The plea submitted by Jason Conaway called for him to be convicted of Class D felony habitual traffic violator and serve 30 actual days in the LaPorte County Jail. * * *

Court records show Conaway has five prior drunk driving convictions with the first one being in 1992 and last occurring in 2008

His driver's license was also suspended at the time of the crash.

If the case goes to trial, Conaway could receive up to three years in prison.

Posted by Marcia Oddi on Thursday, July 26, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Law - "Noble County lawyer arrested on meth charge"

Rebecca S. Green reports today in the Fort Wayne Journal Gazette in a story that begins:

A Noble County lawyer wanted on felony charges was arrested Wednesday night at his home in the 8000 block of County Road 550E, according to a Noble County Sheriff's Department report.

Jon A. Criss, 43, was arrested about 9 p.m. by the sheriff's department and northeast Indiana SWAT officers after police received information from the public on his location, the report said.

Criss was taken to the Noble County Jail where he is being held without bond until his court hearing.

Noble County Prosecutor Steve Clouse charged Criss with Class D felony possession of methamphetamine, Class D felony maintaining a common nuisance, and misdemeanor charges of possession of marijuana and possession of a synthetic drug, according to a press release.

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

Wednesday, July 25, 2012

Ind. Courts - "Courtroom Cameras On Trial 5 Cameras, 9 Mics Tested In Pilot Program"

WRTV6's Derrik Thomas reported this evening on the pilot project that will soon begin in select courtrooms around the state. Watch the video. Some quotes from the print story:

Video cameras will soon be used inside a Marion County courtroom to streamline the process of obtaining a court record.

The Indiana Supreme Court is going to allow cameras inside the courtroom in a pilot program that begins next month.

Criminal Court 6 will feature five cameras and nine voice-activated microphones mounted in strategic locations. It's a sophisticated, low-maintenance operation. * * *

Currently, it can take up to 90 days for a trial transcript to be ready for appellate attorneys to review, and those documents can be 1,500 pages or more.

With the new system, attorneys will get a video copy almost immediately.

"The court is trying to respond to developments in technology," said Judge Mark Stoner. "Kentucky has been doing this for 30 years. I don't think it is going to change how lawyers try cases. It's just a matter of how quickly we can get an appellate review."

The judge has committed to at least 15 jury trials for the pilot program, but it is unclear if the role of the cameras will be expanded at the end of the program.

The ILB as yet has seen no official announcement or order from the Supreme Court authorizing this project, but knows it has been in the works for some time.

Looking back through the ILB archives, here is a story from June about such a project taking place in New Jersey.

And here is an entry from April about a Jan. 26, 2012 opinion of the Public Access Counselor about the availability of records of court proceedings, which the Indiana Supreme Court’s Public Access to Court Records Handbook acknowledges are public records.

Posted by Marcia Oddi on Wednesday, July 25, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Still more on: Thoughts on today's decision in Erasmo Leyva, Jr. v. State of Indiana?

Attorney Greg Bowes writes:

Try Gaddis v. State, 253 Ind. 73, 251 N.E.2d 658 (Ind. 1969), for a reversal, although it is termed “uncredible dubiosity.”
ILB: Sure enough, the Supreme Court in Gaddis (which is in fact cited in J. Baker's dissent) concluded:
In summation, the evidence of guilt, in the matter before us, containing as it does the ingredients of uncredible dubiosity, falls far short of proof beyond a reasonable doubt. If such rule is ever to be revived by this court, certainly the facts, as set forth in the record revealing the suspect character of the state's proof make it incumbent upon this court to apply it here.

From our foregoing discussion as to the sufficiency of the evidence, we would reverse appellant's conviction and order a new trial.

A Court of Appeals case going the other way, but with a good quote distinguishing Penn and Gaddis, is Watkins v. State, 571 N.E.2d 1262, 1265 (1991):
Watkins urges us to reverse the convictions on the other two child molesting counts on the ground that the testimony of J.W. is inherently improbable and unworthy of belief as a matter of law. However, the cases in which we have found testimony of a witness to be inherently improbable or of incredible dubiosity, and hence insufficient to induce a belief of the defendant's guilt beyond a reasonable doubt, have either involved situations where the facts as alleged could not have happened as described by the victim and be consistent with the laws of nature or human experience, see e.g., Penn v. State (1957), 237 Ind. 374, 146 N.E.2d 240 (reversing conviction based solely on prosecutrix's uncorroborated allegations of a consensual menage a trois between the prosecutrix, the defendant, and the defendant's wife), or the witness was so equivocal about the act charged that his uncorroborated and coerced testimony was riddled with doubt about its trustworthiness, see Gaddis v. State (1969), 253 Ind. 73, 251 N.E.2d 658 (reversing conviction based on testimony of witness who had been subjected to pressure and threat of imprisonment if he did not testify). In each of these cases, the victim or witness' testimony was not corroborated by direct or circumstantial evidence and the only evidence of guilt was so lacking in probative value that the court determined it was inadequate to surmount the burden of proof beyond a reasonable doubt. [ILB emphasis]
The language in bold brings us back to what I take to be the point of Judge Baker's dissent (at p. 13):
Notwithstanding the incredible dubiosity rule, I believe that it is time to consider whether we should require corroborating evidence when these type of offenses are supported only by the testimony of a single witness.
By "these type of offenses" I take Judge Baker to mean that both child abuse and rape should require corroborating direct or circumstantial evidence in addition to the testimony of the victim.

And, as the initial ILB reader wrote this afternoon, advances in DNA and information technology and recent studies questioning of the reliability of eye witness testimony may militate in favor of such a shift. Thoughts?

Posted by Marcia Oddi on Wednesday, July 25, 2012
Posted to Ind. App.Ct. Decisions | Leyva Discussion

Ind. Decisions - More responses to: Thoughts on today's decision in Erasmo Leyva, Jr. v. State of Indiana?

In response to this ILB entry from earlier this afternoon, and this response, another reader writes:

The prosecutor who wrote to you about Leyva needs to do a little more research. According to your posting, this person wrote, “Second, the ‘incredible dubiosity’ rule (which is an Indiana concept) that Judge Baker has primarily based his dissent upon has actually never been used to reverse an Indiana conviction.”

There are at least two. Penn v. State, 146 N.E.2d 240 (Ind. 1957) and Sisson v. State, 710 N.E.2d 203 (Ind. Ct. App. 1999).

And Prof. Joel Schumm writes:
More than fifty years ago, the Indiana Supreme Court in Penn v. State unanimously reversed a conviction for statutory rape of a sixteen-year-old girl because the justices found her testimony that she and the defendant's wife shared the same bed with the defendant "so improbable as to challenge the credibility of her entire testimony." It is quite a read from an era when Ward and June Cleaver slept in separate beds. [ILB: Or Ricky and Lucy] This is the only Supreme Court case I know of that has reversed a conviction based on the incredible dubiosity rule.

Posted by Marcia Oddi on Wednesday, July 25, 2012
Posted to Ind. App.Ct. Decisions | Leyva Discussion

Law - "28 of 50 Top Law Schools Still Accepting Applications for Fall Semester"

Interesting.

Posted by Marcia Oddi on Wednesday, July 25, 2012
Posted to General Law Related

Ind. Decisions - A response to: Thoughts on today's decision in Erasmo Leyva, Jr. v. State of Indiana?

In response to this ILB entry from earlier this afternoon, a prosecutor has sent the following:

First, this isn't a new development, although i's somewhat surprising that Judge Baker is trying to revive it now through an opinion. He's really just advocating for an exception to the constitutional standards for reviewing sufficiency of the evidence in cases where a witness is a child. This is remarkable insofar as it has been rejected time and time again over several decades of Indiana jurisprudence. Some of the handful of examples that he cites from other jurisdictions are results of legislative acts, not judicially-created rules. Second, the "incredible dubiosity" rule (which is an Indiana concept) that Judge Baker has primarily based his dissent upon has actually never been used to reverse an Indiana conviction. Third, the concerns that Judge Baker has in the criminal context seem logically applicable to the civil context as well, although one could try to distinguish the two by the different remedies available in the two types of cases (it seems a somewhat arbitrary distinction when many civil cases involving molestation claims seek--and, as we've recently seen nationally, obtained--damages of enormous sums well beyond the ability of the defendant to ever pay). Fourth, the power Judge Baker would assign to appellate judges is motivated by his second-guessing words on a piece of paper and not the live testimony from which a unanimous jury of 12 peers had little problem found the defendant guilty beyond a reasonable doubt. His view of the jury system appears strikingly different from what Chief Justice's seems to be in light of Dickson's writings and recent questioning of judicial applicants about their trust in juries. And given their answers, it also seems incongruent with those of the trial judges who applied for Justice Sullivan's vacancy.

Finally, it's ironic that Judge Baker chose Matthew Hale to illustrate his point. The late Lord Chief Justice famously: (a) held that marital rape is a legal impossibility because a wife abandons sexual autonomy upon entering into a marriage contract (a principle of English and Welsh law that prevailed until only 21 years ago); and (b) presided over notorious English witchcraft trials where he condemned women to death for witchcraft, sorcery, and unnatural love (a precedent that was relied heavily upon by Salem authorities a few years later). Perhaps it goes without saying that Hale might have better served the common law by announcing the incredible dubiosity standard instead.

Are there more?

Posted by Marcia Oddi on Wednesday, July 25, 2012
Posted to Ind. App.Ct. Decisions | Leyva Discussion

Ind. Decisions - ND Ind. rules "Hammond rental sign-up fee disparity unconstitutional"

According to a story today by Marisa Kwiatkowski in the NWI Times:

FORT WAYNE | A federal court judge on Tuesday declared part of a Hammond ordinance unconstitutional because it required landlords who live outside the city to pay a higher rental registration fee than landlords who live within city limits, court records show.

U.S. District Court Judge Theresa Springmann's ruling eliminates the disparity in the amount of the rental registration fee. The fee itself and the remainder of the city ordinance still are in effect. * * *

The original ordinance charged an $80 annual fee per existing apartment unit, but set a discounted $20 per unit fee for the first 20 units owned by a Hammond resident.

In a settlement filed earlier this year, Hammond city officials agreed that portion of the rental ordinance was unconstitutional. City officials also agreed to pay $150,000 to the Indiana Apartment Association for the organization’s legal fees.

Indianapolis-based attorney Geoffrey Slaughter, who represented the association, said his client was pleased with the court's resolution. He declined further comment.

Posted by Marcia Oddi on Wednesday, July 25, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - One today from Supreme Court

In Kenneth Dwayne Vaughn v. State of Indiana, an 11-page, 4-1 opinion, Justice David writes:

This case involves a trial court’s discretion in granting a mistrial. Defendant vacillated back and forth throughout the trial seeking to proceed pro se and at other times wanting court-appointed counsel. Ultimately, the relationship between defendant and his counsel reached its low point when later in the trial defendant testified. After being non-responsive to the first question his counsel asked, defendant began to complain to the jury about his counsel’s trial strategy. Defendant’s response to counsel’s question was also irrelevant and risked a mistrial.

Within a matter of a few moments, the judge had instructed the defendant four times to stop speaking before directing the jury to be removed from the courtroom. Before the jury left the courtroom, the judge directed the bailiff to cover the defendant’s mouth so that the defendant would stop talking. Later, after the defendant had calmed down and expressed his willingness to follow the judge’s direction, the jury was brought back into the courtroom, and defendant completed his direct and cross-examinations without incident. Only after defendant completed his testimony did defense counsel move for a mistrial. The trial court refused to grant a mistrial. Because we find the defendant did not suffer actual harm from the bailiff restraining him, we affirm the trial court’s decision. * * *

A defendant has the right to appear in front of a jury without any physical restraints. However, a trial court judge also has the responsibility of managing the proceedings so proper order exists in the courtroom. While there may have been other options the judge could have exercised to prevent the necessity of ordering the bailiff to put his hand over the defendant’s mouth, the judge’s decision was not an abuse of discretion in denying the motion for mistrial. We find no harm was done, and affirm the trial court.

Dickson, C.J., and Rucker and Massa, JJ., concur.
Sullivan, J., dissents, believing the decision of the Court of Appeals to have been correct.

Here is the Sept. 14, 2011, 2-1 COA opinion.

Posted by Marcia Oddi on Wednesday, July 25, 2012
Posted to Ind. Sup.Ct. Decisions

Vacancy on COA 2012 - More on: Gov. Daniels received the three finalists' names from the JNC on June 11th

As I wrote in this July 10th ILB entry:

The word is that Gov. Daniels last week personally interviewed each of the applicants. The ILB is expecting an announcement shortly, perhaps by the end of this week.
Well, I was wrong about the timing. And the Governor does have plenty of time yet, he has 60 days from June 11th.

Judge Carr L. Darden's upcoming retirement ceremony was today. I didn't watch it live, but from the tweets I've seen from the Indianapolis Bar Ass'n., it sounds like it will be fun to watch the rerun.

The finalists for Judge Darden's seat are Hon. Robert R. Altice, Jr., Ms. Patricia C. McMath, and Hon. Rudolph R. Pyle, III. See their photos and applications here.

Posted by Marcia Oddi on Wednesday, July 25, 2012
Posted to Vacancy on COA 2012

Ind. Decisions - Thoughts on today's decision in Erasmo Leyva, Jr. v. State of Indiana?

Read today's 2-1 COA decision in Erasmo Leyva, Jr. v. State of Indiana (ILB entry here), a reader writes:

I think the Leyva decision is significant. In view of the NJ Sup Ct decision on eye witness testimony, the “Innocence Project”, and “information technology” I suggest you ask readers for input.
From the dissent in Leyva:
In sum, I think that all of these circumstances make A.L.’s testimony incredibly dubious. I believe that it would be wise for us, as an appellate court, to draw upon the words of our predecessors, reminding us that while we should respect the province of the jury, it remains our responsibility to determine whether there is sufficient evidence as a matter of law. Likewise, we should be vigilant when a conviction is obtained on the basis of one eyewitness, so that we do not execute an injustice.

Notwithstanding the incredible dubiosity rule, I believe that it is time to consider whether we should require corroborating evidence when these type of offenses are supported only by the testimony of a single witness. * * *

With the advent of modern technology, including DNA testing and analysis, it is not unreasonable to require some form of corroborating evidence before convicting a defendant when the sole witness is the victim. This is especially true when the defendant has been accused of child molesting and similar offenses, insofar as if convicted, he will not only be sentenced accordingly, but also subject to certain registry and residency restrictions.

Any comments from attorneys/judges? If you do not want your name used, please tell me in your note.

Posted by Marcia Oddi on Wednesday, July 25, 2012
Posted to Ind. App.Ct. Decisions | Leyva Discussion

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

For publication opinions today (2):

In North Gibson School Corporation v. Shea Truelock, Brian Douglas, Doyin Barrett, Tony Hensley, Lacee Richardson, Sue Ellen Beloat, Mike Beloat, Jamie Slinker, Kim Blaize, Lisa Burkett, et al., an 11-page opinion, Chief Judge Robb writes:

North Gibson School Corporation (the “School Corporation”) brings this interlocutory appeal of the trial court’s denial of its motion to dismiss a lawsuit filed by thirteen individual bus drivers (collectively, the “Drivers”). The School Corporation raises two issues, which we restate and reorder as: whether unsuccessful bidders for a transportation services contract with a school corporation have a private right of action for collusion against that school corporation, and whether the Indiana Antitrust Act allows for recovery of compensatory damages from a school corporation. We conclude that the Drivers, as unsuccessful bidders, do not have a private right of action against the School Corporation, even if alleging collusion. We also conclude the School Corporation cannot be held liable for compensatory damages under the Indiana Antitrust Act. Therefore, we reverse and remand. * * *

The Drivers technically could bring a claim for collusion based on the facts alleged in their complaint, but cannot do so against the School Corporation because the School Corporation is an improper defendant and because the Drivers could not recover any damages from the School Corporation. Therefore, we reverse the trial court’s order denying the School Corporation’s motion to dismiss and remand with instructions to enter an order consistent with this opinion.

In Erasmo Leyva, Jr. v. State of Indiana , a 16-page 2-1 opinion (including a 9-page dissent), Judge Brown writes:
Erasmo Leyva, Jr., appeals his conviction for child molesting as a class A felony. Leyva raises one issue, which is whether the evidence is sufficient to sustain Leyva’s conviction for child molesting as a class A felony. We affirm. * * *

To the extent Leyva asserts that the incredible dubiosity rule requires reversal of his conviction, we note that the rule applies only in very narrow circumstances. * * *

KIRSCH, J., concurs.
BAKER, J., dissents with separate opinion. [which begins, at p. 8 of 16] I respectfully dissent. I believe that A.L.’s testimony is incredibly dubious and that the evidence is, therefore, insufficient to support Leyva’s conviction for class A felony child molesting.

As noted by the majority, the doctrine of incredible dubiosity allows a reviewing court to reevaluate the credibility of a witness when “a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence.” Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The “[a]pplication of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.” * * *

In sum, I think that all of these circumstances make A.L.’s testimony incredibly dubious. I believe that it would be wise for us, as an appellate court, to draw upon the words of our predecessors, reminding us that while we should respect the province of the jury, it remains our responsibility to determine whether there is sufficient evidence as a matter of law. Likewise, we should be vigilant when a conviction is obtained on the basis of one eyewitness, so that we do not execute an injustice.

Notwithstanding the incredible dubiosity rule, I believe that it is time to consider whether we should require corroborating evidence when these type of offenses are supported only by the testimony of a single witness. * * *

With the advent of modern technology, including DNA testing and analysis, it is not unreasonable to require some form of corroborating evidence before convicting a defendant when the sole witness is the victim. This is especially true when the defendant has been accused of child molesting and similar offenses, insofar as if convicted, he will not only be sentenced accordingly, but also subject to certain registry and residency restrictions. See Ind. Code § 35-42-4-11.

Lord Hale was correct when he recognized that sexual assaults are heinous. Indeed, they are particularly atrocious when they are perpetrated against our children, over whom our natural inclination is to protect. But we must be mindful that the disgust that such actions elicits cannot cloud our reason such that we permit guilty verdicts to stand even when they were not obtained by proof beyond a reasonable doubt. I believe that the State failed to prove beyond a reasonable doubt that Leyva committed class A felony child molesting in this case, and I would reverse.

NFP civil opinions today (6):

In re the Adoption of S.W., Thomas West v. Ronnie D. Sedberry and Sondra Sedberry (NFP)

In Re: The Marriage of John Davis v. Pamela Davis (NFP)

In the Matter of the Adoption of A.N.B.; L.T.B. v. C.J.H. (NFP)

Jimmie I. Immel v. Jennifer W. Immel (NFP)

K.S.B., A Child Alleged to be a Delinquent Child v. State of Indiana (NFP)

A.K., Father v. T.L., Mother (NFP)

NFP criminal opinions today (8):

Paul Lewis v. State of Indiana (NFP)

Andrew Huntsman v. State of Indiana (NFP)

Vaughn Blackburn v. State of Indiana (NFP)

Darnell Tinker v. State of Indiana (NFP)

Ben J. Davis v. State of Indiana (NFP)

Brad W. Passwater v. State of Indiana (NFP)

Anthony Wilson v. State of Indiana (NFP)

Sean Shumaker v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 25, 2012
Posted to Ind. App.Ct. Decisions | Leyva Discussion

Ind. Courts - Watch Judge Carr L. Darden's retirement cermeony here

Watch the retirement ceremony here, right now, live - 10 AM, July 25.

It will be archived if you miss it live.

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

Ind. Courts - "Lake Juvenile magistrate's promotion 'bittersweet'"

So reports Susan Brown today in the NWI Times:

CROWN POINT | For longtime Lake Juvenile Court Magistrate John Sedia and his many supporters, the opportunity for promotion was too good to pass up.

"Everybody said John had to apply for that job," Lake Juvenile Court Judge Mary Beth Bonaventura said Tuesday of Sedia's appointment to a bench in Lake Superior Court.

Sedia replaces Lake Superior Court Judge Diane Kavadias-Schneider in Hammond. Kavadias-Schneider was transferred to Crown Point after Judge Jeffery Dywan's retirement.

Sedia served as a public defender and then referee in Bonaventura's court. Bonaventura seized the first opportunity to appoint him magistrate, she said.

"He's really smart, the salt of the earth," Bonaventura said in describing Sedia as someone well-liked whose judgment is trusted.

"I'm really going to miss it here," Sedia said Tuesday. "It was one of the hardest things to decide before I even applied for the position."

Besides his work as a magistrate, Sedia, of Schererville, also serves as special judge in a wide variety of law. The governor's appointment came in the midst of a property damage trial and also his stint as president of the Lake County Bar Association.

"I've practiced law for 27 years, and I've been involved with juvenile court for 24 years," he said. "There's not a whole lot I haven't seen basically."

"There's a lot of unpleasant things in juvenile court, with children, CHINS cases, termination of parental rights and delinquencies," he said. In private practice, Sedia has dealt with civil matters regarding personal injury, contracts and corporations.

Looking at his juvenile court career, Sedia said the court is as busy as ever but an interesting change involves paternity cases.

"There are people in their 30s and 40s," he said. "It isn't just teenage pregnancies anymore. People are not worried about being married and having kids."

In looking at his new seat, Sedia said he doesn't expect many changes, though he may "tweak" things a bit when he discovers his own style. "Judge Dywan ran a really, really efficient court," he said.

But ultimately, Sedia said, the court belongs to the people.

"My job is to make sure cases are designed fairly, everyone has a right to be heard and notified, and (cases) are decided expeditiously," he said.

Sedia said he expects to wrap up his juvenile court duties in mid-August, and Bonaventura will appoint a replacement by Aug. 20.

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

Law - "U of Illinois Law School Is Publicly Censured by the ABA, Fined for Misreporting Admissions Data"

See the story by Mark Hensen in the ABA Journal. A quote:

The action follows the revelation last fall that the law school reported and/or published inaccurate LSAT scores and incoming student grade-point-average data for the entering class of 2005 and the entering classes of 2007 through 2011. The university, which launched an investigation into the matter after its ethics office was alerted to potential discrepancies in its admissions data for the class of 2014, blamed the inaccuracies on Paul Pless, the law school's former assistant dean for admissions.

Posted by Marcia Oddi on Wednesday, July 25, 2012
Posted to General Law Related

Ind. Decisions - "Justices allow man to sue his dad"

The Indiana Supreme Court decision July 23rd in the case of Robert L. Clark, Jr. and Debra Clark v. Robert L. Clark, Sr. (ILB entry here) has been the subject of wide coverage. Here is Niki Kelly's story in the Fort Wayne Journal Gazette, headed "Justices allow man to sue his dad."

The Indiana Supreme Court ruled Monday that an Adams County man can sue his father for driving into him, causing significant leg injuries.

The case began in September 2007 when Robert Clark Jr. was a passenger in a car being driven by his father, Robert Clark Sr. When they arrived at their destination; the son got out, walked in front of the vehicle and began motioning for his father to drive forward into a parking space.

Once the vehicle had pulled in, the son raised his hand to signal his father to stop. Instead of depressing the brake pedal, the father’s foot hit the accelerator, causing the vehicle to pin his son between his vehicle and the next vehicle, court records said.

Clark Jr. and his wife sued, alleging negligence by the father. An Adams County judge initially threw the case out, saying Indiana’s guest statute prohibits the suit.

The law generally says the operator of a car is not liable for loss or damage from injuries to certain family members if they are being transported, “in or upon the motor vehicle” without payment, unless it is the result of willful misconduct.

Clark Jr. is alleging negligence.

The crux of the argument was whether the son was considered “in or upon the motor vehicle.”

The trial judge ruled in favor of the father but the Indiana Court of Appeals reversed, saying the phrase is unambiguous and the son clearly had exited the vehicle when he was struck, meaning the law doesn’t apply.

The Supreme Court – in a 3-2 decision – upheld the appellate ruling and said the son could sue.

Posted by Marcia Oddi on Wednesday, July 25, 2012
Posted to Ind. Sup.Ct. Decisions

Tuesday, July 24, 2012

Ind. Decisions - Federal court rules against Hoosier Environmental Council in its I-69 Suit against Army Corps

In HOOSIER ENVIRONMENTAL COUNCIL et al v. UNITED STATES ARMY CORPS OF ENGINEERS et al, a 23-page 7/24/12 order on cross motions for summary judgment, Judge McKinney writes:

Plaintiffs seek judicial review, under the Administrative Procedure Act, of the Army Corps of Engineers’ (the “Corps”) decision to issue a dredge and fill permit to INDOT, authorizing INDOT to discharge dredged and fill material into waters of the United States. * * *

It is not arbitrary or capricious for the Corps to consider that one of the benefits accruing from the proposed action would be the facilitation of the I-69 project, but that does not mean that the analysis is impermissibly “skewed.” ... Therefore, the Court concludes that the public interest review engaged in by the Corps is not arbitrary, capricious, in violation of the law or contrary to the substantial weight of the evidence. Accordingly, the Court GRANTS the Defendants’ motions for summary judgment and DENIES Plaintiffs’ motion.

IV. CONCLUSION. For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Summary Judgment [dkt. no. 50], and GRANTS Defendants’ Motions for Summary Judgment [dkt. nos. 73, 75]. Additionally, the Court GRANTS Defendants’ Motion to Supplement the Administrative Record [dkt. no. 70]. Plaintiffs shall take nothing by way of their Complaint. Judgment will enter accordingly.

Posted by Marcia Oddi on Tuesday, July 24, 2012
Posted to Ind Fed D.Ct. Decisions

Vacancy #2 on Supreme Court 2012 - " Two East Central Indiana judges are among the 10 semifinalists for an upcoming vacancy on the Indiana Supreme Court."

Some quotes from a story today by Douglas Walker in the Muncie Star-Press:

Judges Marianne Vorhees of Delaware Circuit Court 1 and Mary Willis of Henry Circuit Court 1 are candidates to succeed Frank Sullivan Jr., who is retiring after 19 years as one of five justices on the state’s highest court. * * *

Vorhees, 53, has practiced law since 1984, and has been judge of Delaware Circuit Court 1 since 2002. She had previously been a master commissioner in the local court system for almost a decade.

The applications submitted by the would-be Supreme Court justices included reviews of their more memorable cases.

Vorhees recalled her 2005 sentencing of Damien Sanders, then 23, to 85 years in prison after he pleaded guilty to robbing and killing a Ball State University student who gave him a ride home from a campus-area party.

“That case changed me as a judge,” Vorhees wrote. “I was struck by the senselessness of the crime and the pain that the victim’s family was suffering. I also saw the pain that the defendant’s family was going through.”

The Delaware County judge said the case “strengthened my resolve to follow all procedures correctly, including protecting defendants’ rights, so that if a case does go up on appeal, the victims do not have to relive their pain and go through the proceedings again.”

Willis, 45, earned her law degree in 1991. She was a probate commissioner for five years before being elected judge of Henry Circuit Court 1 in 2002, becoming the county’s first female judge.

In her application, Willis recalled “the most difficult case of my career,” stemming from a rural New Castle man’s fatal stabbing of his grandmother in 2007. She ultimately found Gregory Galloway guilty but mentally ill of murder, a verdict that was upheld by a state appeal panel, but overturned, in a 3-2 vote, by the Indiana Supreme Court.

“The quality of mental health treatment in the state of Indiana became pivotal when the evidence established years of failed mental health treatments and repeated releases from psychiatric placements,” the Henry County judge wrote.

If either of the East Central Indiana judges is appointed to the Supreme Court, the governor will also select her successor on the local bench.

Posted by Marcia Oddi on Tuesday, July 24, 2012
Posted to Vacancy #2 on Supreme Court 2012

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

In US v. Kirkland (ND Ind., DeGuilio), a 38-page opinion, Judge Ruben Castillo, United States District Court for the Northern District of Illinois, sitting by designation, writes:

Jeffrey Kirkland was convicted of unlawful possession of a firearm by a felon, and based on a finding that he had five “violent felony” convictions, including two drunk driving offenses, the district court sentenced him as an armed career criminal pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). After the Supreme Court determined that drunk driving is not a “violent felony” as the term is defined in the ACCA, Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), Kirkland filed a petition for relief under 28 U.S.C. § 2255. The district court denied Kirkland’s petition. On appeal, we vacated that judgment and remanded the case with directions for the district court to determine whether Kirkland still qualified as a career criminal absent the two convictions for drunk driving. On remand, the district court concluded that an enhancement of Kirkland’s sentence under the ACCA was still appropriate based on his three remaining convictions for violent felonies.

Kirkland appeals on two grounds: first, that the district court erred in determining that two of Kirkland’s “violent felony” convictions that arose from events on a single day constituted separate predicate offenses under the ACCA, and second, that the district court erred in not admitting Kirkland’s testimony and affidavit at his resentencing hearing. We reverse. * * *

In holding that the government bears the burden of proving by the preponderance of the evidence that a defendant’s prior convictions were “committed on occasions different from one another” under § 924(e)(1), we affirm that “[a] defendant who has the opportunity to cease and desist or withdraw from his criminal activity at any time, but who chooses to commit additional crimes, deserves harsher punishment than the criminal who commits multiple crimes simultaneously.” Hudspeth, 42 F.3d at 1021. Nevertheless, we believe that an ambiguous record regarding whether a defendant actually had the opportunity “to cease and desist or withdraw from his criminal activity” does not suffice to support the ACCA enhancement.

III. CONCLUSION. For the foregoing reasons, we REVERSE the judgment of the district court and REMAND the case for resentencing in accordance with this opinion.

Posted by Marcia Oddi on Tuesday, July 24, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)

For publication opinions today (1):

In Kelvin T. Brown v. Indianapolis Housing Agency , a 13-page opinion, Judge Crone writes:

Kelvin Brown was employed by the Indianapolis Housing Agency (“IHA”). After an investigation by an IHA officer, IHA concluded that Brown had been conducting personal business during work hours and terminated Brown's employment. Thereafter, Brown was charged with ghost employment, official misconduct, and deception, but the charges were ultimately dismissed voluntarily by the prosecutor. Brown then sued IHA for malicious prosecution and intentional infliction of emotional distress. The trial court granted summary judgment for IHA.

We conclude that IHA had a qualified privilege to report Brown's suspected criminal conduct. The designated evidence does not show that the privilege was abused, and the privilege bars Brown's claim for both malicious prosecution and intentional infliction of emotional distress. Much of the same evidence also negates elements of Brown's claims. Therefore, we affirm the judgment of the trial court.

NFP civil opinions today (3):

Chanda Banner v. Charles Kincaid (NFP)

Evonne Carrillo v. Review Board of the Ind. Dept. of Workforce Development and Skozen & Skozen, LLP (NFP)

Larry Edward Ruble, Jr., Individually and as Administrator of the Estate of Natasha Ruble, Deceased v. Lori Thompson, M.D. (NFP)

NFP criminal opinions today (11):

Keith Crawford v. State of Indiana (NFP)

Latine Davidson v. State of Indiana (NFP)

Roy L. Streicher v. State of Indiana (NFP)

Asa G. Wisler v. State of Indiana (NFP)

Alan Weir v. State of Indiana (NFP)

Jordan Guess v. State of Indiana (NFP)

John W. Breedlove v. State of Indiana (NFP)

Justin Holman v. State of Indiana (NFP)

Jeffrey Scott Brooks v. State of Indiana (NFP)

Timothy L. Gabbard v. State of Indiana (NFP)

Dwayne Gaines v. State of Indiana (NFP)

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

Environment - More on: "State tightens manure management rules"

For an introduction to the new requirements, see this July 9th article by Andy Bowman, Attorney, Bingham Greenebaum Doll LLP, headed "New Indiana CFO and CAFO Rules Effective July 1, 2012." The article concludes:

To assist producers to comply with the new CFO rule and new CAFO rule, IDEM issued its Guidance Manual for Indiana Confined Feeding Program on June 15, 2012. This 124-page manual provides explanations of the key program requirements of Indiana’s CFO rule and CAFO rule and includes website references, examples of required application materials, testing resources, and relevant Extension Service publications.
The CFO Guidance Manual is available here, on the IDEM Confined Feeding Operations (CFOs/CAFOs) webpage.

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

Ind. Law - "New Indiana Law Restricts Criminal History Information Reported in Background Checks Starting July 1"

Tom Ahearn, ESR News Editor, is the author of this July 2, 2012 article in Employment Screening Resources (ESR). Here is a sample:

In one year, effective July 1, 2013, HB 1033 will restrict criminal history information that “criminal history providers” – defined in the law as “a person or an organization that assembles criminal history reports and either uses the report or provides the report to a person or an organization other than a criminal justice agency or law enforcement agency” – obtain from the state by making them only provide information pertaining to criminal convictions. Criminal history providers such as CRAs will no longer be permitted to provide the following information in background check reports:
  • An infraction, an arrest or a charge that did not result in a conviction;
  • A record that has been expunged;
  • A record indicating a conviction of a Class D felony if the Class D felony conviction has been entered as, or converted to, a Class A misdemeanor conviction; and
  • A record that the criminal history provider knows is inaccurate.
Also on July 1, 2013, criminal history providers such as CRAs may also “not include criminal history data in a criminal history report if the criminal history data has not been updated to reflect changes to the official record occurring sixty (60) days or more before the date the criminal history report is delivered.”

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

Law - "Everything You’ve Ever Wanted to Know About Voter ID Laws"

Comprehensive article from Suevon Lee of Pro Publica.

From Eric Bradner of the Evansville Courier & Press, a story July 21st headed: "Lawsuit seeks to force Indiana to purge voting rolls of deceased, those who have moved: Warrick has more names on rolls than existing voters."

From Ethan Bronner of the NY Times, a story July 19th headed "Legal Battles Erupt Over Tough Voter ID Laws."

Posted by Marcia Oddi on Tuesday, July 24, 2012
Posted to General Law Related

Monday, July 23, 2012

Courts - More on "Assault victim's tweets prompt contempt case"

Updating this morning's post on the story July 21st Louisville Courier Journal that began:

Frustrated by what she felt was a lenient plea bargain for two teens who pleaded guilty to sexually assaulting her and circulating pictures of the incident, a Louisville 17-year-old lashed out on Twitter. * * *

Now, Dietrich is facing a potential jail sentence, as the attorneys for the boys have asked a Jefferson District Court judge to hold her in contempt because they say that in naming her attackers, she violated the confidentiality of a juvenile hearing and the court’s order not to speak of it.

This evening Jason Riley of the Courier-Journal reports that the contempt charges have been dropped:
David Mejia, an attorney for one of the teens, said given that the story has gone global because of a piece Saturday in The Courier-Journal, there was no reason to continue the contempt motion.

“What could contempt do now?” Mejia said in an interview, adding that the boys’ names have already been circulated far beyond the original tweet. “Seems like a rather useless exercise doesn’t it?” * * *

Emily Farrar-Crockett, deputy division chief of the public defender's juvenile division and one of Dietrich's attorneys, said on Monday that “Savannah greatly appreciates the overwhelming support she has received from all over the world” since the newspaper story was published.

“We are encouraged by the private defense attorney’s belated recognition that their action was inappropriate and only served to make worse what this child victim has already endured,” she said.

On a new Twitter page Monday, Dietrich said: “I am so thankful for everyone supporting me ...”

Farrar-Crockett also said her office is still looking to have set aside the original court order forbidding all parties from talking about the case. Farrar-Crockett said the order was overly broad, and Dietrich should be able to talk about aspects of the case.

Prof. Eugene Volokh of The Volokh Conspriacy blog, who was also quoted in this morning's post, writes this evening, concluding:
This is an instance of the Streisand effect, in which an attempt to use the legal system to suppress speech just draws more attention to the speech. (The effect is named after an incident in which a privacy-minded Barbara Streisand sued trying to get an aerial photo of her mansion removed from a collection of photographs — which only led to much more public attention being drawn to that photo.) There’s a lesson there for lawyers, a lesson that is important regardless of whether you think the underlying legal claim is justified or not.

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to Courts in general

Ind. Courts - Indiana inmate "Greg Ousley Is Sorry for Killing His Parents. Is That Enough?"

Yesterday's NY Times Magazine had a lengthy article by Scott Anderson titled "Greg Ousley Is Sorry for Killing His Parents. Is That Enough?." Ousley is in Westville for killing his parents at age 14; he has been there for 19 years. The article concludes:

Strong or not, Greg’s case is a telling one in the national debate over just what is accomplished by sentencing juveniles to long prison sentences. In the case of juvenile parricide, there is an added paradox. Because it is among the most target-specific of crimes, criminologists believe that an abused juvenile who killed a parent is likely to be at low risk of future criminality if he gets treatment and has a strong social support system when he is released. Certainly society might recoil at the notion that a child who murders his parents should be “let off” by a juvenile detention that might end at 18 or 21, but attached to this is the question of when the thirst for punishment becomes counterproductive to all concerned. After all, Greg Ousley, like 95 percent of other prison inmates, is going to come out some day, and is it better for society that he do so when he’s in his 30s and still has the potential of patching together a somewhat-normal life, or not until his 40s when his options will be far more limited?

This debate seems a long way off in Kosciusko County. In April 2010, two young boys from a rural corner of the county, Colt Lundy, 15, and Paul Gingerich, 12, shot to death Lundy’s stepfather, Phillip Danner. Days later, at the urging of the county prosecutor, Daniel Hampton, the boys’ cases were waived into the adult system, where, facing up to 65 years in prison, both entered plea agreements. On Jan. 4, 2011, almost 17 years to the day that Greg Ousley was sentenced in the same county courthouse, Paul Gingerich was sentenced to 25 years. Considered by prison officials to be too vulnerable for even the youth as adults wing of Wabash Valley prison, Gingerich is currently being temporarily housed at a juvenile facility. He is the youngest adult inmate in Indiana.

Although "his lawyer" is mentioned in the article, the attorney is not further identified.

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today, re the Indiana guest statute

In Robert L. Clark, Jr. and Debra Clark v. Robert L. Clark, Sr., a 5-page, 3-2 opinion, Cheif Justice Dickson writes:

The Indiana Guest Statute prevents certain designated passengers from recovering dam-ages for injuries resulting from the ordinary negligence of the motor vehicle operator, where such passenger was "being transported without payment in or upon the motor vehicle." Ind. Code § 34-30-11-1 (emphasis added). We hold that, as to injuries inflicted when such a passenger has exited the vehicle and is standing outside of it and directing the driver's attempt to park, the passenger is not "in or upon" the vehicle and thus is not precluded from bringing a negligence action against the driver.

Both parties moved for summary judgment seeking a determination of the applicability of the Guest Statute, and the trial court ruled in favor of Senior. The Court of Appeals reversed, in an unpublished opinion [ILB emphasis], Clark v. Clark, No. 01A02-1007-CT-759, 2011 WL 2848178 (Ind. Ct. App. July 19, 2011). We granted transfer and now hold that the Indiana Guest Statute does not bar the plaintiffs' suit. * * *

Conclusion. The "in or upon" language of the unambiguous Indiana Guest Statute must be given its plain and ordinary meaning and does not apply to persons who may have been passengers but who, at the time of their injury, had exited the vehicle and were not actually being transported by it. Under the agreed facts of this case, the Guest Statute does not bar the plaintiffs' claims. We reverse the judgment of the trial court and remand for denial of the defendant's motion for summary judgment and granting of the plaintiffs' motion for partial summary judgment.

Rucker and David, JJ., concur.

Sullivan and Massa, JJ., dissent, and would affirm the trial court's grant of summary judgment in favor of Senior, believing the analysis of KLLM, Inc. v. Legg, 826 N.E.2d 136 (Ind. Ct. App. 2005), trans. denied, and of Chief Judge Robb in this case, Clark v. Clark, No. 01A02-1007-CT-759, 2011 WL 2848178 at *3-5 (Ind. Ct. App. July 19, 2011) (Robb, C.J., dissenting), to have been correct.

ILB note: See the paragraph in CJ Robb's 2011 dissent starting on p. 8, beginning:
Even more importantly, words such as “in” and “upon” can have different meanings when used in a generic ordinary sense as opposed to the phrase “in or upon” used as a legal term of art. A recent commentator has observed that current legal scholarship criticizes the use of English language dictionaries to define statutory terms.

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - RFP to replace legislative systems

According to this document, the Indiana Legislative Services Agency issued an RFP on July 9th:

seeking a qualified vendor to provide business analysis, system analysis, software design, software development, software testing, and system integration services to replace existing legislative information systems.
ILB: The deadlines are on p. 4, if you are just hearing about this it is probably already too late.

More from the RFP:

The legislative information systems were developed at different times using different technologies, tools, and techniques. They are hosted on different platforms and rely on a mix of operating systems and environments. As a result, many application and data interfaces exist and the workflow involved is very complex. No single person or team understands the entire system,and the support infrastructure relies on contractors, numerous product vendors, various groups,and LSA staff.

Over 375 programs and 500 outputs exist today and are categorized into seven basic information systems.

They include:

  • Bill Drafting (Bill Drafting, Standing Committees, Interim Committees, Folio)
  • Fiscal
  • Code Revision
  • Bill Status
  • Chamber Automation, Voting Systems, and Journal
  • Administrative Code and Register
  • Miscellaneous Administrative
The legislative information systems are integrated today and are highly dependent on each other for data and information sharing. Five of the primary legislative information systems are Bill Drafting, Fiscal, Code Revision, Bill Status, Voting Systems, and the Journal Systems. All internal users access these legislative information systems using the local area network. Most of the work is done while the legislature is in session (January to May of odd-numbered years and January to March of even-numbered years). However, pre-session work extends several months ahead of the session, and post-session work generally lasts several months after a session ends. During session, system users may work 10+ hour days or on weekends to keep up with the workload. Data entry work must be printed, proofread, corrected, and reprinted prior to distribution via web or paper copy.

Many miscellaneous legislative applications exist to support the pre- and post-session activities. Although these applications are not tightly integrated with the core legislative information systems, they are somewhat integrated and easily share a great deal of data with them.

The miscellaneous administrative applications are primarily written in Delphi and WordPerfect macros and provide a great deal of value to the staff. Some of these applications have interfaces to other systems including the legislative information systems.

The Administrative Code application has been rewritten recently and is, for the most part, a stand-alone system.

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to Indiana Government

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

In McCleskey v. DFL Construction (SD Ind., Lawrence), a 6-page opinion, Circuit Judge Bauer writes:

This suit involves the interpretation of provisions in union-employer contracts that require the employer to contribute to two union funds—a pension fund and a health and welfare fund. The two funds and their Trustee brought suit against an employer construction company to collect contributions for nonbargaining unit work performed by a union member. The issue on appeal is whether the contract provisions require the construction company to make contributions to the union funds for all hours worked or only for bargaining unit work. The district court granted summary judgment against the employer, finding that it had to contribute to the funds for all hours worked. We affirm.

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to Ind. (7th Cir.) Decisions

Law - "Job, Tuition Woes A Drain On Law Schools"

That is the title to a story by Wendy Kaufmann on NPR's Morning Edition - the intro:

The American Bar Association has changed how law schools report their post-graduation employment stats. The bottom line: Job prospects are worse than previously thought for newly minted lawyers. But while the number of recent law school grads with jobs is falling, tuition is not.

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to General Law Related

Courts - "So You Want To Be A Supreme Court Justice?" (SCOTUS)

The blog Above the Law looks at the the vetting form O’Melveney & Myers chairman A.B. Culvahouse used to vet Supreme Court Justice Anthony Kennedy.

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (5):

Michael Sims v. State of Indiana (NFP)

Edwin D. Calligan v. State of Indiana (NFP)

Savane Williams v. State of Indiana (NFP)

Rosalio Pedraza v. State of Indiana (NFP)

Robert Grubbs v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to Ind. App.Ct. Decisions

Law - "Securing Legal Ties for Children Living in LGBT Families: A State Strategy and Policy Guide"

This new 96-page report, produced by The Movement Advancement Project (MAP:

... examines the outdated state laws, particularly in the areas of marriage and parenting, that largely ignore and routinely harm the roughly two million children being raised by LGBT parents. It provides an overview of the diversity and demographics of LGBT families, looks at how the paths to parenthood for LGBT parents intersect with archaic laws and practices that often leave children without legal ties to both their parents, and explores the ways in which that lack of legal ties hurts children being raised in LGBT families. * * *

[In addition it] offers a detailed framework for state policymakers to draft, pass and enact new laws that protect all children--including those living in LGBT families and other contemporary family structures--and recommendations for amending, repealing or overturning discriminatory laws that leave children without the security of legal ties to their parents.

The report is the focus of this long July 20, 2012 "Your Money" column in the NY Times, authored by Tara Siegel Bernard, headed "A Family With Two Moms, Except in the Eyes of the Law."

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to General Law Related

Ind. Courts - "NWI Times reporter wins award for coverage of children's issues"

The Indiana Judges Association has awarded its 2012 Commendation for Excellence in Public Information and Education to NWI Times investigative reporter Marisa Kwiatkowski. From the story:

Kwiatkowski's series of articles, titled Children in Peril, put a spotlight on how families throughout Indiana are struggling to find appropriate mental health services for their children.

To date, the articles have demonstrated how judges, prosecutors, public defenders, probation officers and others are frustrated by the limitations of the law in providing services for such children.

The articles also have illustrated how a number of families agreed — as a last, desperate measure — to plead guilty to neglect to get their children needed services.

Some others forced themselves into the court system by “abandoning” their children at a residential facility to make children with severe mental illnesses and/or developmental disabilities wards of the state.

Here is a long list of Ms. Kwiatkowski's stories that the ILB has featured.

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to Indiana Courts

Environment - "State tightens manure management rules"

Hayleigh Colombo reported July 16th in a lengthy story the Lafayette Journal Courier:

When rules for about 1,600 pig and cattle producers across the state were tightened this month, Jeff Cook didn’t blink. Cook, part owner of Cook Hog Farm LLC, a 4,000-hog operation in Delphi, said he’s used to dealing with new rules.

The latest: Among other requirements, there are new restrictions on how much manure can be spread on the ground — an effort to reduce fish kills and other negative environmental affects.

“You just feel like you’re regulated to death,” Cook said.

The new rules apply to all the state’s confined feeding operations and concentrated animal feeding operations.

Under Indiana regulations, confined feeding operations, or CFOs, are farms with 300 or more cattle, 600 or more swine or sheep, 30,000 or more poultry, or 500 or more horses in confinement.

Concentrated animal feeding operations, or CAFOs, meet larger threshold numbers.

There are 304 CFOs and CAFOs in Tippecanoe and surrounding counties.

The manure produced by animals raised in such large numbers is typically stored in pits, tanks or lagoons until it is applied as fertilizer for corn, soybeans or other crops, according to the Indiana Department of Environmental Management.

Although twice-a-decade inspections mean producers have some time to adjust to more stringent manure management rules, changing things up is tricky. * * *

Jay Gruber, production manager of Northwind Pork LLC in Rensselaer, said pumping manure directly from lagoon to field avoids the additional cost of transfer by truck. * * *

Besides new requirements for spreading manure, the rules as of July 1 also state:

There are now two types of permits available for confined feeding operations, depending on whether the operation discharges manure or pollutant-bearing water.

• CAFOs, which traditionally have had stricter rules, can assume general CFO status or continue to have CAFO permits;

• Excepting those with a permit or in emergency situations, spreading manure on frozen or snow-covered ground is not allowed; and

• Operations will need to make nutrient management plans available to the public.

When manure is properly dealt with, IDEM states it provides natural nutrients for crops and can lessen fuel dependency.

But it can pose environmental concerns when manure leaks from storage or when it is not applied correctly.

Manure now is required to be measured by phosphorous level instead of nitrate level, an effort to ensure that phosphorous doesn’t build up and eventually move into surface water, Nennich said.

“That causes algae growth in the water, and eventually that growth can really seriously lead to fish kills,” Nennich said.

Fish kills would be an extreme consequence of excess algae.

Here is a July 9th story in the Anderson Herald Bulletin, reported by Stuart Hirsch, and headlined " New regulations affect feeding sites: Environmental rules stem from federal suit." It concludes:
Josh Trenary, director of business development for Indiana Pork producers, said regulations covering confined feeding operations have been in effect since the 1970s.

He said the new regulations were crafted because of a federal court case in 2011.

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to Environment

Ind. Law - "New Law Changes Child Support Age: Are You Prepared?"

This article by Eric N. Engebretson, Whitham Hebenstreit & Zubek LLP, was posted by IndyBar. The second paragraph reads:

At the outset, it is worth noting that a footnote to a recent opinion of the Indiana Court of Appeals raises the possibility that the amended law might be subject to challenge on constitutional grounds, at least as it applies to certain parties. Specifically, in Sexton v. Sexton, 2012 WL 2054859, the Court suggests that the law may be unconstitutional under Article 1, Section 24 of the Indiana Constitution which prohibits ex post facto laws or laws impairing the obligations of existing contracts. However, assuming that the law is upheld, this change represents a relatively significant departure from prior law.
Here is the ILB summary of Sexton, issued June 8th. The footnote mentioned in the article begins on p. 9 of the opinion, and reads:
[3] We further observe that the law currently allows an educational support order to remain in effect beyond a student’s twenty-first birthday, Carson v. Carson, 875 N.E.2d 484, 486 (Ind. Ct. App. 2007), and that Public Law 111-2012 will not affect that principle. However, it is unclear whether Public Law 111-2012 will affect existing obligations beyond the age of nineteen under dissolution agreements and judgments, which may raise concerns under Article 1, Section 24 of the Indiana Constitution.

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to Indiana Law

Courts - "Assault victim's tweets prompt contempt case"

This lengthy story by Jason Riley was in the July 21st Louisville Courier Journal. Some quotes:

Frustrated by what she felt was a lenient plea bargain for two teens who pleaded guilty to sexually assaulting her and circulating pictures of the incident, a Louisville 17-year-old lashed out on Twitter.

“There you go, lock me up,” Savannah Dietrich tweeted, as she named the boys who she said sexually assaulted her. “I’m not protecting anyone that made my life a living Hell.”

Now, Dietrich is facing a potential jail sentence, as the attorneys for the boys have asked a Jefferson District Court judge to hold her in contempt because they say that in naming her attackers, she violated the confidentiality of a juvenile hearing and the court’s order not to speak of it.

A contempt charge carries a potential sentence of up to 180 days in jail and a $500 fine.

“So many of my rights have been taken away by these boys,” said Dietrich, who waived confidentiality in her case to speak to The Courier-Journal. Her parents also gave their written permission for her to speak with the newspaper.

“I’m at the point, that if I have to go to jail for my rights, I will do it,” she said. “If they really feel it’s necessary to throw me in jail for talking about what happened to me ... as opposed to throwing these boys in jail for what they did to me, then I don’t understand justice.” * * *

Juvenile court is closed in Kentucky to protect the confidentiality of defendants, but Dietrich has consented to the media’s presence at her contempt hearing, which is allowed under state law.

A hearing is scheduled for July 30 in juvenile court to decide if the media will be allowed into the contempt hearing.

The Courier-Journal and Dietrich’s attorneys have filed motions to open the proceedings, arguing she has a First Amendment right to speak about what happened in her case and a right to a public hearing on the contempt charge.

The boys’ attorneys, however, have asked the court to continue the order barring Dietrich from speaking to the media about the assault case or allowing the newspaper or anyone else to witness the contempt hearing. * * *

Farrar-Crockett said Dietrich looked at the laws of confidentiality before she tweeted and “tried not to violate what she believed the law to be,” not tweeting about what happened in court or was in court records. * * *

David Marburger, an Ohio media law specialist, said even if the judge is limiting freedom of speech with an order, “it doesn’t necessarily free you from that order. You have to respect the order and get the judge to vacate the order or get a higher court to restrain the judge from enforcing the order.”

Prof. Eugene Volokh of The Volokh Conspriacy blog wrote about the story Sunday, in a post titled "The Dark Side of Privacy."

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to Courts in general

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

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

From Sunday, July 22, 2012:

From Saturday, July 21, 2012:

Posted by Marcia Oddi on Monday, July 23, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/23/12):

Next week's oral arguments before the Supreme Court (week of 7/30/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/23/12):

Thursday, July 26

Next week's oral arguments before the Court of Appeals (week of 7/30/12):

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, July 23, 2012
Posted to Upcoming Oral Arguments

Friday, July 20, 2012

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

In Shideler v. Astrue (ND Ind., Miller), a 15-page opinion, Circuit Judge Manion writes:

Bradley Shideler suffers from osteogenesis imperfecta, also called “brittle bone disease.” In 2006, he applied for Social Security Disability Insurance benefits, and after holding an evidentiary hearing, the Administrative Law Judge (“ALJ”) found that despite Shideler’s limitations, there were a sufficient number of jobs in the regional economy available to a person with his restrictions, and denied his application. When the Appeals Council denied review, the ALJ’s decision became the final decision of the Social Security Commissioner, and Shideler sought relief from the federal district court. The district court affirmed the Commissioner’s decision, and Shideler now appeals to this court. Because there is substantial evidence in support of the decision to deny benefits, we affirm. * * *

The ALJ’s reasons for finding Shideler’s testimony to be not fully credible are sound and are not “patently wrong.” Whatever Shideler’s current condition is, the ALJ’s decision finding that Shideler was not disabled as of March 31, 2000 is supported by substantial evidence. While the members of the court sympathize with Shideler due to his condition, that condition did not rise to the level of a disability prior to his date last insured. We AFFIRM.

Posted by Marcia Oddi on Friday, July 20, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on "Lawyer Gets Prison Time For Cheating Alzheimer's Patient: Stacy H. Sheedy Stole Thousands"

Updating earlier ILB entries, per this order filed on July 17th, Ms. Sheedy has tendered resignation from the bar of this State and the resignation has been accepted by the Supreme Court, effective immediately.

Posted by Marcia Oddi on Friday, July 20, 2012
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In Devon D. Dokes, Jr. v. State of Indiana , a 5-page opinion, Judge May writes:

Devon Dokes appeals the revocation of his probation for being a felon in possession of a handgun. Finding the evidence sufficient to support the court’s decision, we affirm. * * *

Dokes argues two insufficiencies in the State’s evidence. He first alleges the State did not meet its evidentiary burden to prove he was on probation. Second, because the trial judge found Dokes not guilty of the criminal offense of being in possession of a weapon, Dokes alleges the testimony he possessed the gun was incredibly dubious and thus insufficient to support probation revocation. * * *

Dokes also asserts the testimony that he possessed the weapon is incredibly dubious under the rule re-announced in Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). The rule of incredibly dubious testimony states:

If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.
Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).

That rule does not apply in the present case. While only one witness testified that Dokes possessed the gun on or near April 21, 2011, there was nothing inherently improbable in that testimony. The standard in Love requires that no reasonable person could believe the sole witness’s testimony.

In James Lee Paul v. State of Indiana , an 11-page opinion, Judge Darden writes:
[Issue] Whether the trial court abused its discretion in denying Paul’s objection to the admission of evidence obtained pursuant to a search warrant after his warrantless arrest inside his apartment. * * *

We cannot say that the trial court abused its discretion as the danger to the officers and tenants, coupled with the tampering of evidence, was an exigent circumstance that made it impracticable for the officers to obtain an arrest warrant before making the arrest. Furthermore, we cannot say that the officers contrived the urgent situation that necessitated Paul’s warrantless arrest. We affirm the trial court’s denial of Paul’s objection to the admission of items later found in the apartment pursuant to a search warrant.

NFP civil opinions today (3):

Term. of Parent-Child Rel. of D.P. and P.S. (Minor Children); A.P. (Father) v. Indiana Dept. of Child Services (NFP)

Term. of Parent-Child Rel. of B.B. and L.H. (Minor Children); Lo.H. (Mother) v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (3):

Bradley D. Haub v. State of Indiana (NFP)

Anthony Lee Leturgez v. State of Indiana (NFP)

Jamey Wayne Thomas v. State of Indiana (NFP)

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

Law - "States Find Legislating Social Media Is a Minefield"

A lengthy story by Dylan Scott of Government Technology dated July 19, 2012, here is a sample:

Right now, states and localities are ground zero for the policies and statutes that will govern more than 150 million Facebook and 100 million Twitter users in the United States. The U.S. Congress voted down one password protection proposal in March, although another has since been introduced. Meanwhile, in additon to the Maryland law, 11 other state legislatures have introduced bills during the 2012 session, according to the National Conference of State Legislatures. No federal statute for online bullying exists, but 46 states have passed laws that explicitly forbid bullying by any electronic means. There are no indications that Congress will address the issue of Facebook or Twitter profiles being a part of a person’s estate when he or she dies, but five states have already enacted laws that dictate what should happen, and two others proposed legislation this year.

That said, the intersection of policymaking and social media can be hazardous terrain. In the case of Maryland and Robert Collins, the state was nearly entangled in a costly lawsuit -- Collins would have sued if the state hadn’t revised its procedure. The Missouri Legislature was less fortunate. After lawmakers approved a bill last year that restricted interactions between teachers and students on social networks, the teachers union filed litigation against the state.

Other cases, particularly those that attempt to govern online speech, have attracted the attention of civil rights and First Amendment advocates who warn that states, in their effort to protect people from digital harassment, might come dangerously close to infringing on constitutionally protected expression. Elsewhere, the social media companies themselves are intervening, concerned that state laws could disrupt the user experience they’ve worked so hard to create for their customers.

And here is a link leading to a 15-page article in FDCC Quarterly/Winter 2012, by Michael K. Kiernan and Samuel E. Cooley, titled "Juror Misconduct in the Age of Social Networking."

Posted by Marcia Oddi on Friday, July 20, 2012
Posted to General Law Related

Ind. Decisions - "Woman sues to stop Indiana BMV from suspending her license, saying agency waited too long"

This AP story reported by Charles Wilson has been around for several days, but in a shortened version. Here is the complete story, as it appears in the July 17th Columbus Republic. Some quotes:

INDIANAPOLIS — A Bloomington woman is suing to stop the Indiana Bureau of Motor Vehicles from suspending her license, saying the agency waited too long to mete out punishment for infractions committed years ago and that revoking her driving privileges now would endanger her family's welfare.

Leslee Orndorff was deemed a habitual traffic offender in 2004 following her third conviction for driving without a license, making her subject to a 10-year license suspension if and when she obtained one, according to a lawsuit filed by Orndorff and the American Civil Liberties Union of Indiana.

Orndorff says the BMV never notified her of her habitual offender status. She got her license in 2008 and contends she was unaware of the suspension that should have applied at the time.

After discovering a computer glitch that allowed Orndorff and some 400 other habitual offenders to be overlooked, the BMV suspended her license in May. A Monroe County judge last month declined to stop the agency from enforcing the suspension. The ACLU is appealing that decision and attorney Ken Falk said this week that the suspension is temporarily on hold.

Orndorff works as a caregiver for a home health care agency, and she says she needs to drive to visit clients at their homes and to take them to doctor visits and the supermarket.

"There is no doubt that the BMV was entitled to suspend Ms. Orndorff's license in 2004," the ACLU said in a court brief. "The question is whether the BMV's extreme and prejudicial delay in waiting to do so until 2012 prevents the BMV from doing so now."

"The BMV's action at this point, given that Ms. Orndorff has been licensed and driving legally for years, is simply irrational and violates due process," the ACLU added. There is no evidence that Orndorff is an unsafe driver, the organization said. * * *

Monroe Circuit Judge E. Michael Hoff last month denied the ACLU's request to bar the BMV from suspending Orndorff, but Falk said Hoff did give the ACLU time to appeal.

Hoff said in a court order that throwing Orndorff's family into hardship wasn't a serious enough threat to the public interest to justify changing the rules for her benefit. He also wrote that the BMV's failure to act in 2004 was understandable because at that time, Orndorff didn't have a driver's license to suspend.

The Indiana Court of Appeals has received the appeal, but hasn't set a date yet to hear arguments in the case, according to the court's online docket.

Posted by Marcia Oddi on Friday, July 20, 2012
Posted to Ind. Trial Ct. Decisions

Vacancy #2 on Supreme Court 2012 - "Mary Willis says she wants to represent trial judges, Henry County and women in her push for a seat on the Indiana Supreme Court."

That is the lead to this story by Craig Mauger in today's New Castle Courier Times. More from the story:

Willis of New Castle has served as a Henry Circuit Court judge since 2003.

She's one of six women still being considered for the Indiana Supreme Court. Currently, the court has five male members. In an interview on Thursday, Willis said only Indiana and two other states have all male supreme courts.

"I certainly want the governor to have a good crop of qualified women to choose from," Willis said. * * *

On Thursday, Willis said she was honored to make the semi-finalist round. The judge added that she's drawn to the Indiana Supreme Court because of the court's ability to educate citizens about the law.

Willis added that as a member of the Indiana Supreme Court, she could help push technological and strategic advancements for all courts here.

"It's an opportunity to lead us into the 21st century," Willis said. * * *

The press release announcing the 10 finalists said deliberations lasted three hours after the interviews. Chief Justice Brent Dickson, who chairs the commission, said the length of deliberations demonstrated the strength of the candidates, according to the release.

"We had a very difficult task and it will not get easier with the next round of interviews," Dickson said in the press release. "The applicants submitted exemplary written documents to help us get to know them. Meeting each candidate in person allowed us to see how talented these individuals are and consider how they each might best serve the judiciary."

Posted by Marcia Oddi on Friday, July 20, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Courts - "Court of Appeals retirement ceremony July 25th to honor Judge Carr L. Darden"

The COA has issued this news release:

Judicial career spans 24 years on Municipal, Superior and Appeals courts

INDIANAPOLIS – The Court of Appeals of Indiana will conduct a Wednesday, July 25th retirement ceremony and celebration honoring Judge Carr L. Darden as he retires from the court after nearly 18 years of service. Chief Judge Margret G. Robb will preside.

The ceremony will start at 10 a.m. in the Supreme Court courtroom for an audience of invited guests. The ceremony will be webcast live and archived for later viewing. News media should contact the court for coverage arrangements.

Judge Darden joined the court in November 1994 after his appointment by Gov. Evan Bayh. He was a judge of Marion Superior Court from 1991-94 and of Marion Municipal Court from 1989-91. He is a 1970 graduate of Indiana University School of Law-Indianapolis and a former Marion County public defender and chief deputy state public defender.

The Tennessee native and U.S. Air Force veteran is retiring at the mandatory age of 75 but will continue to serve the state as a senior judge.

“It’s hard to leave the best job in the world,” Judge Darden said, “but you know, I hope I can say it was a job well done. I can definitely say I worked with a lot of great people and I’ll be happy to keep doing that as a senior judge.”

Judge Darden has received numerous honors during his career, including the Paul H. Buchanan Jr. Award of Excellence in 1994 from the Indianapolis Bar Foundation. He especially cherishes the fact that his colleagues on the Marion County bench deemed him “exceptionally qualified” to serve on the trial court.

Judge Darden is the second African American to serve on the Court of Appeals and the first to retire from it. (Judge Robert D. Rucker left the COA in 1999 after being appointed to the Indiana Supreme Court.)

“Judge Darden is an esteemed colleague, a trusted friend and a delightful man,” Chief Judge Robb said. “He’s served our state with distinction and all of us here at the court extend our warmest congratulations and best wishes to him and to Mrs. Darden.”

Posted by Marcia Oddi on Friday, July 20, 2012
Posted to Indiana Courts

Thursday, July 19, 2012

Vacancy #2 on Supreme Court 2012 - Thoughts on the First Round: The Interview Really Matters; Law School Grades Do Not

This from Prof. Schumm, IU-McKinney School of Law.

I certainly understand the concern that a large percentage of male applicants (66%) advanced to the second round while a much smaller percentage (37%) of the female applicants advanced. However, as someone who very much hopes a woman is appointed, I prefer to see the glass as half full instead of half empty. Although yesterday’s vote was important to winnowing the field, all that ultimately matters is the list of three names sent to the Governor next month. There are six female applicants still in the running—unlike 2010 and earlier this year, when there were just four and three, respectively. I remain optimistic that at least two of the three names sent to the Governor will be women.

Although Indiana’s selection process is considerably more transparent than most states, it does not webcast interviews as Iowa did in 2011 when it had three vacancies to fill. I wish more people had the opportunity to see the interviews—either in person or via webcast. Twenty short minutes often provides a good sense of whether someone is seen as “judicial” (to use John Trimble’s phrase from the ISBA Demystifying seminar in June). Can you picture the applicant asking questions at oral arguments, giving speeches, and representing the Court in discussions with other branches of government, the bench, the bar, and the public? Commission members certainly bring different perspectives to making that assessment, as do those in the room observing interviews. In informal discussions with other observers after the interviews, though, a fairly strong consensus emerged about those candidates likely to advance.

Those who advanced (and some who did not) have been actively involved in service to the legal profession through bar associations, Supreme Court agencies and committees, and the broader community. They also had particularly good interviews. Law school grades were seldom mentioned, and, when they were, merely as a passing compliment leading to a broader question.

Of the ten applicants with the highest GPAs, only 30% advanced to the next round (listed by highest rank first): Judge Vorhees, Ms. Lewis, and Mr. Slaughter.

Of the ten applicants with the lowest GPAs, 50% advanced (listed by highest rank first): Ms. Metzel, Judge Bradford, Judge Willis, Mr. Young, and Judge Nation.

[Note: Judge Rush, whose GPA fell into the middle of the applicant pool, and Judge Gull, whose law school did not use traditional grading, also advanced.]

Here is the table originally posted July 9, but now with successful semi-finalists highlighted.

Vorhees Notre Dame 3.671 “3 or 4”/180
Clark IU-Maurer 3.57 Top 10%
Fisher IU-Maurer 3.55 Top 10%
Kozicki Loyola (Chicago) 3.47 46/170
Joven IU-Maurer 3.39 Top 20%
Lewis Loyola (Chicago) 3.38 54/145
Orr IU-McKinney 3.33 Top 15%
Slaughter IU-Maurer 3.29 Top 15%
Gooden IU-McKinney 3.22 __
Tavitas Notre Dame 3.157 __
Rush IU-Maurer 3.12 Approx. Top 24%
Hardman IU-Maurer 2.93 __
Parsons IU-McKinney 2.93 80/219
Brown IU-Maurer 2.86 __
Metzel IU-McKinney 2.86 __
Bradford IU-McKinney 2.74 104/185
Willis IU-McKinney 2.74 __
Kuzma IU-Maurer 2.7 Top 34.7%
Young IU-McKinney 2.57 __
Nation IU-McKinney 2.45 __
Roper IU-McKinney 2.32 “Low 25%”

Gull Valparaiso non-traditional grades __

As a final thought, law school grades have inflated over the years and vary from school to school. Class rank is arguably a more useful metric, and the following table is sorted by class rank (for those who provided it).

Semi-Finalists Who Provided Class Rank
Applicant School Class Rank
Vorhees Notre Dame 3 or 4/180
Slaughter IU-Maurer Top 15%
Rush IU-Maurer Approx. Top 24%
Lewis Loyola-Chicago 54/145 (Top 37%)
Bradford IU-McKinney 104/185 (Top 56%)

Posted by Marcia Oddi on Thursday, July 19, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - "Ruling opens door for Sellersburg to annex Covered Bridge"

Yesterday's COA decision in Covered Bridge Homeowners Association, Inc., Clark County, Indiana Commission, et al. v. Town of Sellersburg, Indiana (ILB summary here) is the subject of a story today in the Louisville Courier Journal by Charlie White. It begins:

The Indiana Court of Appeals has upheld Clark Superior Court’s 2010 decision that voided the incorporation of Covered Bridge as a town.

The appeals court also upheld the lower court’s dismissal of a petition signed by more than 600 residents of the golf community and surrounding rural area who opposed Sellersburg’s proposed annexation of their properties.

Sellersburg extended its sewers to the upscale golf community in the 1990s with an understanding with developers — and deed restrictions placed on properties in Covered Bridge and the Willows at Covered Bridge subdivisions — that waived residents’ rights to oppose a future annexation.

The decision, handed down Wednesday, opens the door for Sellersburg to finally annex 1,852 acres, which includes the two subdivisions as well as other nearby properties on Perry Crossing, Allentown and St. Joe roads.

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

Ind. Courts - "Former Vanderburgh County Superior Court Judge, Thomas Lockyear, has died at the age of 79."

From the Tristatehomepage:

Governor Robert Orr appointed Lockyear as Superior Court Judge in 1985, replacing Randall Shepard, who went on to become Indiana's Supreme Court Chief Justice.

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

Ind. Decisions - "Obese Woman's Family Can Sue Coroner Over Flatbed"

Thatis the heading to this WRTV story this afternoon about the COA opinion today in the case of David Daniel Johnson, Jr. v. The Marion County Coroner's Office. The ILB summarized the opinion here.

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

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

For publication opinions today (2):

In David Daniel Johnson, Jr., by Next Friend, Indiana Dept. of Child Services v. The Marion County Coroner's Office and City of Indianapolis, a 22-page opinion, Judge Riley writes:

D.J. raises three issues on appeal, which we restate as:
(1) Whether the trial court correctly held, as a matter of law, that the Coroner’s Office is entitled to the law enforcement immunity pursuant to the Indiana Tort Claims Act;
(2) Whether summary judgment was appropriate with respect to D.J.’s claim for damages for negligent infliction of emotional distress arising out of the removal of his deceased mother’s remains; and
(3) Whether summary judgment was appropriate with respect to D.J.’s claim for damages for intentional infliction of emotional distress because the Appellees’ conduct was extreme and outrageous. * * *

[II. The Indiana Tort Claims Act] D.J. contends that the trial court improperly granted summary judgment to Appellees as it incorrectly determined that the Coroner’s Office is immune to suit under the Indiana Tort Claims Act (ITCA).2 D.J. maintains that because the transportation of Smith’s remains did not amount to an enforcement of the statutory requirement that the Coroner’s Office must investigate the cause of death of a person who has been found dead, the governmental agency’s immunity did not come into play. * * *

In order to pursue the directives of the statute and to complete a medical investigation into the cause of Smith’s death after she was found dead at home, Kelly had to transport her remains to the Coroner’s Office. To that end, a tow truck was summoned and her remains were winched onto the flat bed of the truck. By transporting the decedent to the Coroner’s Office, Kelly was not compelling enforcement of the law against another person, he was merely following the law to enable a more detailed investigation. The Coroner’s office conduct in following its own rules does not fall within the definition of enforcement for purposes of immunity under ITCA. Consequently, we reverse the trial court’s grant of immunity to the Coroner’s Office.

[III. Negligent Infliction of Emotional Distress] * * * Although the designated facts of this case may paint an egregious picture of an ill-advised transport of a decedent’s remains by the Coroner’s Office, the evidence does not show that D.J. was sufficiently and directly involved in the removal of his mother’s body to justify a claim for negligent infliction of emotional distress. Therefore, we conclude that the trial court did not err when it granted summary judgment for the Appellees.

[IV. Intentional Infliction of Emotional Distress] * * * The Coroner’s Office conduct may have been reckless, disrespectful, and offensive but reasonable persons may differ on whether this conduct reaches the level of extreme and outrageous necessary to satisfy the tort. Accordingly, as there is a genuine issue of material fact, Appellees were not entitled to summary judgment on D.J.’s claim for intentional infliction of emotional distress. We reverse the trial court and remand for further proceedings.

CONCLUSION. Based on the foregoing, we conclude that (1) the Coroner’s Office is not entitled to immunity under the ITCA; (2) summary judgment was appropriate with respect to D.J.’s claim for damages for negligent infliction of emotional distress; and (3) a genuine issue of material fact exists whether the Coroner’s Office conduct amounted to intentional infliction of emotional distress.

In Bobby A. Harlan v. State of Indiana , a 14-page opinion, Sr. Judge Sullivan writes:
Bobby A. Harlan appeals the sentence imposed upon his two convictions of child molesting, both Class B felonies. Ind. Code § 35-42-4-3 (1981). Harlan also appeals the trial court’s order that he register as a sexually violent predator (SVP). We affirm. * * *

Harlan argues that the trial court should not have required him to register as a SVP because the statutes defining sex offenders and requiring them to register had not yet been enacted when he committed his crimes. He concludes that the SVP requirement, as applied to him, violates Article 1, Section 24 of the Indiana Constitution, also known as the ex post facto clause. * * *

Although in Healey v. State, 969 N.E.2d 607 (Ind. Ct. App. 2012), a different panel of this Court very recently adopted the rationale followed in Lemmon and in Jensen v. State, 905 N.E.2d 384 (Ind. 2009), a reasonable view might understand the merits of the contrary position. One might legitimately question whether the extended period for registration was not, in fact, an increase in the punitive impact of the registration for life requirement. See Jensen, 905 N.E.2d at 396 (Boehm, J., dissenting, with then-Justice Dickson); Lemmon, 949 N.E.2d at 816 (Dickson, J., dissenting). However, we are bound by the cases as decided by our Supreme Court.

The current case resembles Lemmon in that Harlan is, by statute, a sex offender and would be subject to registration requirements even if he were not a SVP. Consequently, application of the seven factors results indicates the same outcome as in Lemmon. While several of the factors lean toward treating SVP status as punitive as applied to Harlan, our determination must be governed by the majority opinions in Lemmon and Jensen.

Harlan asserts that his designation as a SVP contravenes our Supreme Court’s holding in Wallace. That case is factually distinguishable. In Wallace, our Supreme Court determined that requiring Wallace to register as a sex offender violated Indiana’s ex post facto clause because he “was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted.” 905 N.E.2d at 384. In this case, Harlan committed one of his crimes after the sex offender registration requirements took effect. Therefore, Wallace does not compel reversal of the trial court’s judgment. For these reasons, Harlan’s claim under the Indiana ex post facto clause is to be rejected.

NFP civil opinions today (3):

In Re the Marriage of Mary Lynn Manning and Ronald D. Manning, II; Ronald D. Manning, II v. Mary Lynn Manning (NFP)

Eric D. Smith v. D. Patton, Scott Fitch, Larry Bynum, and Correctional Medical Services, Inc. (NFP)

In the Matter of the Paternity of: J.G.; R.W. v. D.G. (NFP)

NFP criminal opinions today (1):

Antwane Walker v. State of Indiana (NFP)

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

Ind. Decisions - "Judge rules Indiana owes IBM $12M over botched welfare program"

Mary Beth Schneider of the Indianapolis Star has lengthy coverage today of yesterday's ruling by Marion County Judge David Dreyer in the FSSA v. IBM case. A few quotes:

In Dreyer’s ruling, IBM gets $12 million, mostly for equipment the state kept after canceling the contract, on top of the $40 million that he had ordered the state to pay IBM earlier. The state also will have to pay 8 percent interest on that money for the period leading up to the judgment.

That is far short of the $113 million IBM wanted.

The state, which had been trying to recoup more than $150 million of the $437 million it had paid IBM before scrapping the deal, got nothing. Dreyer found that IBM did not breach its contract and that IBM had, in fact, laid the groundwork for the current success.

And he cited trial evidence that showed the state, even while publicly praising IBM, was trying to cancel the contract because it would cost additional money the state didn’t have to adjust what had been a flawed plan.

So far, the state has paid Barnes & Thornburg, the Indianapolis law firm who handled the lawsuit, $9.6 million. Attorney Peter Rusthoven said that represents two years of work leading up to a five-week trial. The cost of an appeal, he said, would probably not exceed $250,000. * * *

It wasn’t Dreyer’s job to judge the merits of privatization in general. But he was critical of Indiana’s experience with welfare.

“Neither party deserves to win this case,” he wrote in his 65-page ruling. “This story represents a ‘perfect storm’ of misguided government policy and overzealous corporate ambition. Overall, both parties are to blame, and Indiana’s taxpayers are left as apparent losers.”

Posted by Marcia Oddi on Thursday, July 19, 2012
Posted to Indiana Decisions | Indiana Government

Law - "Spam text messages a growing problem"

Useful article in the Milwaukee Journal Sentinel, by Gitte Laasby, who was formerly the environmental reporter for the Gary Post Tribune.

Posted by Marcia Oddi on Thursday, July 19, 2012
Posted to General Law Related

Ind. Law - "Lawyer Charged in Own Shooting; Authorities Say He Staged Apparent Attack for Unknown Reason"

Martha Neil of the ABA Journal has compiled stories about "Peter Raventos, 43, [who] had claimed that he was shot by an unknown assailant on June 25 at McCormick’s Creek State Park."

According to the Roll of Attorneys, Peter Sean Raventos, Spencer, is active in good standing.

Posted by Marcia Oddi on Thursday, July 19, 2012
Posted to Indiana Law

Ind. Courts - St. Joe Commissioners reject pay raises for deputy prosecutors

Erin Blasko reports in the South Bend Tribune that:

The county Board of Commissioners on Wednesday voted to veto a set of ordinances appropriating about $46,000 out of the general fund to better compensate 29 of the county's deputy prosecutors.

County Prosecutor Mike Dvorak introduced the ordinances in June in an attempt to keep deputy prosecutors from leaving the prosecutor's office for higher paying positions elsewhere, including in the public sector.

The vote was 2-1, with Commissioner Dave Thomas, D-District 2, opposed.

Addressing the board, Dvorak described the situation as an "emergency," noting that five mid-level deputy prosecutors had left the office in recent months to take higher paying jobs elsewhere, despite the inclusion of a 3 percent pay raise for all county employees in the current county budget.

"The concern I have, gentleman, is a public safety concern," he said. "When those mid-level prosecutors leave, those complex cases fall on the backs of the remaining attorneys," some of whom are not as experienced.

According to Dvorak, compared to the average state-paid rate of $58,536 for a deputy prosecutor, the 29 prosecutors targeted in the ordinances make, on average, about $51,445 annually, or about 12 percent less.

The ordinances seek to bring that average up to about $55,000, he said.

In voting to veto the measures, Commissioner Bob Kovach, D-District 3, said he could not in good conscience support pay raises in one county department and not others. * * *

The ordinances now move back to the County Council for separate veto override votes. Such votes require two-thirds majority, or six votes, for passage.

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

Vacancy #2 on Supreme Court 2012 - Some newspaper reports on first round interviews

From the Fort Wayne Journal Gazette, Niki Kelly reports:

Allen Superior Court Judge Fran Gull on Wednesday advanced to the semifinal round of interviews for a post on the Indiana Supreme Court.

She and nine others will be questioned a second time about their qualifications Aug. 8 or 9.

“I can’t hardly breathe, I’m so excited,” Gull said upon hearing the news.

In 2010, Gull didn’t get past the first round when she tried for a different Supreme Court opening. This year she credited her success to being more prepared and relaxed.

“I decided when I walked into the interview that I was going to have a conversation, not think about it as a job interview even though obviously that’s what it was,” she said. * * *

In Tuesday’s interview, Gull, 53, focused on her jury trial experience and administrative skills. As a prosecutor and now a judge, she has overseen about 500 jury trials, and she is involved on a number of state judicial committees.

From WLFI18, a story by Kyle Bloyd:
Tippecanoe County Juvenile Court Judge Loretta Rush has been named a semi-finalist for Indiana's Supreme Court.

Judge Rush was publicly interviewed by the Indiana Judicial Nominating Commission for just over 20 minutes Wednesday afternoon. * * *

During her interview, Judge Rush spoke of the technological inroads Tippecanoe County has made and how she would like to further open up the courtroom.

"I think sometimes our branch of government is the least transparent and the more that we open it up and become more transparent, the more the public will have trust in what we are doing," said Rush.

"I think it makes us more accountable as a judiciary and increases public trust in our system."

From the Lafayette Journal-Courier (which is now $$$), a long story by Sophia Voravong:
In her application for a seat on the Indiana Supreme Court, Tippecanoe County juvenile court Judge Loretta Rush is candid about a Nov. 18, 1998, break-in and attack at her Lafayette home that could have killed her husband and required Rush herself to undergo surgery.

The suspect, then 26 years old, was a man who Rush represented 12 years prior as a guardian ad litem while he was a child in need of services, or CHINS.

“The reason that this ... attorney appointment was significant to me was the insight that it provided me as I took the bench one month later,” Rush, who is in her 14th year and third term as judge of Tippecanoe Superior Court 3, wrote in her application.

“... I look at the children that find themselves in our court system and understand the long-standing toll such things as child abuse, neglect and untreated mental health can have on their adult lives.”

On Wednesday afternoon, Rush was formally interviewed by the seven-member Judicial Nomination Commission, which will recommend to Gov. Mitch Daniels who should become Indiana’s 108th justice.

Four hours later, she was named one of 10 semifinalists — whittled down from 22 applicants who all were interviewed Tuesday and Wednesday — seeking to succeed retiring Justice Frank Sullivan Jr.

“Everybody in the close community around Superior Court 3 — no one wants her to leave, but everyone is rooting for her,” Lafayette attorney Michael Troemel said. “She’s destined for greater things.” * * *

“She just lives in a pressure cooker. Every single case that she does is important,” said Troemel, who appears before Rush several times a week, mainly for CHINS proceedings. “She deals with the most difficult cases, in my opinion, every single hour of every day.

“She has an incredible capacity for empathy with people in her courtroom. ... We need people like her on the Supreme Court. And that’s coming from an attorney who she has ruled against.”

West Lafayette Mayor John Dennis, a former Lafayette police officer, said of Rush, “It goes without saying that she’s done amazing things in juvenile court,” he said. “She’s dealt in very difficult, high-profile cases ... that had not only local effects but statewide effects. and she’s handled them very well.”

Among the more recent high-profile cases was the March 16, 2005, death of 4-year-old Aiyana Gauvin after months of abuse by her stepmother and father. Rush also mentioned that case, though only by Aiyana’s initials, in her Supreme Court application.

CHINS cases are typically closed, but Rush decided to release redacted records to local media, including the Journal & Courier, in the interest of accountability and prevention.

From the NWI Times, a story by Dan Carden headed "Lake judge's quest for high court vacancy ends." It begins:
A bid by Lake Superior Judge Elizabeth Tavitas to become the 108th justice of the Indiana Supreme Court ended Wednesday.

The state's Judicial Nominating Commission, headed by Chief Justice Brent Dickson, a Hobart native, did not select the Munster resident as a semifinalist for an upcoming vacancy on the state's high court.

In her interview with the commission Wednesday, Tavitas said she wanted to join the Supreme Court for the opportunity to work with four other justices. She said in her current position as a civil judge in Gary she makes every decision on her own.

"I would just absolutely love the back-and-forth and the reflection and debating and playing devil's advocate and listening to everyone's views," Tavitas said.

Posted by Marcia Oddi on Thursday, July 19, 2012
Posted to Vacancy #2 on Supreme Court 2012

Wednesday, July 18, 2012

Vacancy #2 on Supreme Court 2012 - MBS does the numbers ...

Mary Beth Schneider ‏@marybschneider

On the IN Sup Crt semifinalists: 37% of women applicants make the cut; 66% of male applicants make the list.
ILB: That is 4 of the 6 male applicants, 6 of the 16 female applicants.

Posted by Marcia Oddi on Wednesday, July 18, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - Interview with Judge Dreyer re FSSA v. IBM ruling today

From Indy Politics:

In a move that is nearly unheard of, Marion County Superior Court Judge David Dreyer sat down with the media this afternoon to explain his ruling regarding the $12 million judgment in the legal dispute between the State of Indiana and IBM over the failed modernization of the state’s welfare services.
The story links to 14 minutes of audio.

Review the 73-page decision here, via the ILB.

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

Vacancy #2 on Supreme Court 2012 - Here are the names of the semi-finalists

We should know within 10 minutes. Check back (i.e. refresh browser).

[3:46] Bradford Gull Lewis Metzel Nation Rush Slaughter Vorhees Willis Young

6 women, 4 men; 6 judges

COA Judge Cale Bradford

Judge Fran Gull, Allen County

Erin Reilly Lewis, Indianapolis

Andrielle Metzel, Indianapolis

Judge Steven Nation, Hamilton County

Judge Lorette Rush, Tippecanoe County

Geoffrey Slaughter, Indianapolis

Judge Marianne Vorhees, Delaware County

Judge Mary Willis, Henry County

John P. Young, Indianapolis

Posted by Marcia Oddi on Wednesday, July 18, 2012
Posted to Vacancy #2 on Supreme Court 2012

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

For publication opinions today (3):

In Covered Bridge Homeowners Association, Inc., Clark County, Indiana Commission, et al. v. Town of Sellersburg, Indiana, a 26-page opinion, Judge Crone writes:

We hold that the annexation proceeding is first in time and takes priority over the incorporation proceeding because it was validly instituted in June 2008 and Sellersburg‟s initial failure to comply with the statutory notice provisions and hold a public hearing did not invalidate the annexation. We also hold that the statutory remonstrance waiver requirements were substantially complied with and thus the remonstrance lacks sufficient valid signatures. Consequently, we affirm the rulings in both cases.
In Howard Justice v. American Family Mutual Insurance Co. , an 8-page opinion, Judge Kirsch concludes:
In this case, the trial court’s order granting summary judgment reflects, without opinion, its agreement with AFI that the setoffs should result in a reduction from the UIM policy limits. Under the rationale of Beam, however, this is incorrect as a matter of law. After a determination of liability and damages, Justice’s damages award should be reduced by the $25,000.00 recovery from Wagner and the percentage of worker’s compensation benefits paid to Justice based upon Wagner’s percentage of comparative fault, up to a maximum of $25,000.00. Reversed and remanded with instructions.
In Annette Pittman v. State of Indiana , a 6-page opinion, Judge Friedlander writes:
Annette Pittman appeals her conviction of Public Intoxication, a class B misdemeanor, challenging the sufficiency of the evidence as the sole issue on appeal. We affirm. * * *

IC 12-23-15-2 states: “An individual to be taken to the city lock-up or county jail shall be evaluated at the earliest possible time for nonalcoholic factors that may be contributing to the appearance of intoxication.” The State offered no evidence, through Officer Craney’s testimony or otherwise, as to what occurred after Pittman was delivered to the jail. Pittman’s conviction is based entirely upon evidence of what Officer Craney observed of Pittman’s behavior and condition at the scene of the incident. Pittman contends that IC 12-23-15-2 requires more. She contends that it “imposes a duty on the police to have persons arrested for public intoxication evaluated to determine if there are reasons other than alcohol that the person would be exhibiting signs of intoxication.” * * *

[T]his provision does not compel the State to administer
a chemical sobriety test, or, by explication, any other particular kind of test. What it does require is an “evaluation” for possible alternate causes (i.e., other than consumption of alcohol) for behavior that evinces intoxication and for which the subject will otherwise be transported to jail. Pittman’s argument assumes that this evaluation must necessarily consist of medical or scientific testing. We cannot agree with the premise.

NFP civil opinions today (1):

In the Matter of M.W. and K.W.-N., Minor Children Alleged to be in Need of Services; M.W. v. Indiana Dept. of Child Services (NFP)

NFP civil opinions today (2):

Demarco Davis v. State of Indiana (NFP)

Curtis L. Bass v. State of Indiana (NFP)

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

Vacancy #2 on Supreme Court 2012 - How many semi-finalists?

The Judicial Nominating Commission has now interviewed all 22 applicants to fill the upcoming vacancy on the Supreme Court. It will announce the list of semifinalists early this afternoon.

How many semifinalists will there be? What will be the gender makeup?

In 2010 there were 34 applicants (19 women/15 men). 9 semifinalists were named (4 women/5 men).

In 2012 #1 there were 15 applicants (7 women/8 men). 7 semifinalists were named (3 women/4 men).

In 2012 #2 there are 22 applicants (16 women/6 men).

A former JNC member, John Trimble, said earlier this year that there is no mathematical formula for how many semifinalists are picked, instead he said the members rank all the applicants and set the line where there is consensus.

In Indiana Legislative Insight this week, Ed Feigenbaum predicts:

Our guess is that the semi-finalist list from this pool will include at least four judges (two females and two males), and three non-judges, only one of whom will be a woman.
So Ed is predicting: (3 women/4 men).

Personally, after my own analysis, I can't see more than two men among the semifinalists. There are a number of outstanding women candidates this time. I am predicting: (5 women/2 men). And if there is a "natural break" for 8 or 9 semifinalists, I would stay with 2 men: (6 women/2 men) or (7 women/2 men).

Posted by Marcia Oddi on Wednesday, July 18, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - Day 2: Report on the final 2 interviews

This is Prof. Schumm's report on the final two interviews of Day 2

Judge Elizabeth F. Tavitas, Indianapolis (photo) (application)

In response to the opening questions, Judge Tavitas emphasized her “deep moral conviction” and traced her career in various public service jobs from deputy prosecutor to juvenile referee to the civil division. In family court cases, she is always the factfinder alone. She would welcome the opportunity to debate and discuss issues at the Indiana Supreme Court. Judge Tavitas said she accepts every special judge case that comes across her desk, which she believes is her duty. She would least enjoy, because of her work as a deputy prosecutor, reversing a case because of a procedural error, although she would have no problem following the law.

In response to a question from Chief Justice Dickson about how or whether Judge Tavitas’s religious views would influence her decisions, she said her “deep moral conviction” would be subordinate to the law. She previously represented a juvenile who wanted to have an abortion, explained all her options, and told the judge she didn’t see any reason why the juvenile could not make the decision.

In response to a question from Mr. Ulmer about the ideal qualities of a justice, Judge Tavitas cited integrity, honesty, fairness, and deciding cases in a logical and predictable way. When drafting an order or opinion, the audience is litigants, lawyers on that case and others, the press and public, and the appellate court if the case goes there.

In response to Ms. Northenor’s question about the most complex case she had handled, Judge Tavitas mentioned a federal case with six defendants that was expected to last three months but she secured a dismissal for her client.

In response to a question from Mr. Streeter about figures that she most admired, Judge Tavitas mentioned Benjamin Franklin, John Adams, and George Washington. She said her analysis most mirrors that of Justice Sullivan.

In response to a question from Mr. Ulmer about where she would live if appointed, Judge Tavitas said she would maintain her home in Lake County but have an apartment in Indianapolis, as Judge Barnes and Judge Vaidik do.

Judge Loretta H. Rush, Indianapolis (photo) (application)

In response to the opening questions, Judge Rush emphasized the important administrative functions of the Court. She discussed her work on Supreme Court committees and projects and said she would enjoy working further on technology. She worked with Justice Sullivan on JTAC for five years and would like to continue to work in that area. She would also like to work on bridge building to bar associations, citizen groups, businesses, and others. She would least enjoy working on disciplinary cases, although it’s a vital part of maintaining our profession.

In response to a question from Mr. Ulmer about the pilot project, Judge Rush explained that six small cameras are being installed in her court this week, tucked in the ceiling and not easily visible. Judge Rush emphasized the importance of offering training to lawyers who must eventually use the DVD as the appellate record.

In response to questions from Chief Justice Dickson about her work on technology to share information, Judge Rush said when she pulls up a case she can see a picture of the child, their grades and school records, police reports, and other information critical to understanding the whole person.

Mr. McDonald said he was impressed with Judge Rush’s efforts to educate her community about the work of her court. Judge Rush emphasized the importance of making the judicial branch transparent and opening courts to increase the public trust and understanding of them.

In response to a question from Ms. Northenor about the most complicated case she has handled, Judge Rush mentioned cases involving physical abuse and medical trauma, which often include extensive medical records.

In response to a question from Chief Justice Dickson about her practice before the bench, Judge Rush mentioned her experience representing both plaintiffs and defendants in a wide variety of legal areas, including business law, municipal law, real estate, probate, and contracts.

In response to a question from Mr. Winningham about adult sentencing reform, Judge Rush noted that the prison population has increased 40% in the past decade. She emphasized that evidence-based programs could support non-incarceration sentencing options for non-violent offenders, which would reduce the cost to the community and allow family integrity.

In response to a question from Mr. McDonald about keeping up on cases in areas outside the realm of juvenile law, Judge Rush said she reads Case Clips from the Judicial Center.

Posted by Marcia Oddi on Wednesday, July 18, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - Still more on "Judge rules Indiana owes IBM $12M over botched welfare program" [Updated]

From what I'm reading on Twitter about the details of Judge Dreyer's lengthy decision, I'm anxious to post a copy of the ruling. Let me know if you can help. [Update] I've now received it and will be posting shortly.

Here are some tweets:

Mary Beth Schneider ‏@marybschneider

Ruling cites email from FSSA head Murphy saying "Senate has stripped us bare" and as result she might have to "unravel" IBM contract.

This is rich. ACS, IBM subcontractor, remains on contract with state, but ruling shows it was ACS that "failed to make any serious effort."

[Updated] Here is the 73-page opinion in FSSA v. IBM. I have optically scanned it and reduced the file size, but it is still 2.85 MB.

Posted by Marcia Oddi on Wednesday, July 18, 2012
Posted to Ind. Trial Ct. Decisions | Indiana Government

Vacancy #2 on Supreme Court 2012 - Day 2: Report on the second 3 interviews

This is Prof. Schumm's report on the second three interviews of the morning of Day 2

Ms. Diane L. Parsons, Indianapolis (photo) (application)

In response to the opening questions, Ms. Parsons said she would most enjoy participating in panel adjudications of the Court, which she is similar to what she has done on the Worker’s Compensation Board. The collective decision is always better than an individual one. She would enjoy working on the Court’s programs involving families and children as well as alternative dispute resolution. She would least enjoy participating in death penalty cases.

In response to a question from Mr. Winningham about the role of ADR in appellate cases, Ms. Parsons said it should be encouraged or at least discussed in any dispute, including appeals.

In response to a question from Ms. Northenor about supervising staff, Ms. Parsons participated in management when she was a partner at Locke Reynolds and now supervises staff at the Worker’s Compensation Board.

In response to a question from Ms. Northenor about Ms. Parsons described the most complex legal matter she had handled, Ms. Parson mentioned occupational disease cases, which are difficult to prove and require scientific data.

In response to a question from Mr. Streeter about qualities of an ideal justice, Ms. Parson responded with “independence.” Chief Justice Dickson asked what she meant by that, and Ms. Parsons explained that justices should not be swayed by public opinion or their personal beliefs or opinions. She then added impartiality, integrity, and competency.

In response to question about technological proficiency, Ms. Parson said she composes and revises all of her own orders but does not use Twitter or Facebook because she does not need more reasons to be on a computer.

In response to a question from Chief Justice Dickson about keeping abreast on recent cases, Ms. Parson said the Board receives a copy of each opinion in its case. She also reads other cases through the Court’s website, the Indiana Lawyer, and the IndianaLawBlog.

This struck me as the most strained interview with uncharacteristically brief answers. Long, filibuster-type answers are certainly not a good idea, but some of these guarded types of responses seemed to leave Commission members asking for more.

Judge Cale J. Bradford, Indianapolis (photo) (application)

In response to the opening questions, Judge Bradford said he really enjoys working with people and solving problems. Judge Bradford said the two legacies of our supreme court are (1) making thoughtful and deliberative decisions and (2) making justice more efficient and cost-effective. Judge Bradford cited his work from the beginning of JTAC and then mentioned many other programs of the Court. As a new justice he would have not only an opportunity but a duty to help. The Court “should not just sustain the legacy of the Court but should grow it.” He would not enjoy death penalty cases, which he has seen as a prosecutor and judge, and are no fun. But justices must step up and do the job because it’s the law and their duty.

In response to a question from Chief Justice Dickson about jury trial experience, Judge Bradford said he tried about 50 cases as a lawyer and presided over 250 as a judge. When asked how often jurors get it right, Judge Bradford said it was not his place as one person to question their decision. He said he has never set aside a jury’s factual finding as a trial or appellate judge.

Mr. Winningham followed up by asking how to grow the legacy. Judge Bradford emphasized finishing up the work of JTAC, which requires legislative funding. He also emphasized the importance of ensuring open access of the courts to all citizens. Judge Bradford also discussed the pilot project in which video records will be created in a few courts. In response to a follow-up question about how it could change the role of the appellate court, Judge Bradford said appellate judges must be disciplined and he would not disturb a factual finding, whether he read it or saw it. Another part of the project will shorten the length of time for preparing a transcript from 90 to 30 days through expedited transcript preparation services.

Ms. Julia Church Kozicki, Noblesville (photo) (application)

In response to the opening questions, Ms. Kozicki said the primary role of the court is deciding which cases to take and then explaining the decisions in a way the public understands. She emphasized in her work as a clerk for Judge Sharp and now at Sigma Kappa that she is able to work on a wide range of legal issues. She also discussed the importance of working in a collegial way, discussing her work on a five-member school board. Although only three votes are required for action, she tries to work toward decisions in which all agree. She would least relish working on capital cases, and it is important to give the cases careful and full consideration.

In response to questions from the Chief Justice about her prior work experience, Ms. Kozicki explained that she went from being a federal habeas law clerk, which ended because the caseload was too low, to internal counsel at Sigma Kappa, which was a part-time job and allowed her time to raise her two sons. Her work at Sigma Kappa involves licensing and trademark, contract, employment, and risk management.

After observing that he knew Judge Sharp well Mr. Ulmer asked what Ms. Kozicki learned from him, and she cited his “fundamental sense of Hoosier fairness.” Her ideal characteristics of a justice include thoughtfulness, fairness, and clarity (for both lawyers and non-lawyers).

In response to a question from Chief Justice Dickson about how she keeps abreast of recent court decisions, she said he reads the cases in the Indiana Lawyer.

Ms. Kozicki said she would plan to commute from Noblesville if appointed, which took 45 minutes this morning. The Chief Justice asked to laughter if that was driving the speed limit before saying “Don’t answer that.”

Ms. Northenor asked about the public’s view of judges. Ms. Kozicki said as a lawyer she holds judges in very high regard and she hopes the public does as well. When asked if she had seen “black robe disease,” Ms. Kozicki said most judges she has seen do not take advantage of the privileges the position affords them.

Posted by Marcia Oddi on Wednesday, July 18, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - More on "Judge rules Indiana owes IBM $12M over botched welfare program"

Here is Niki Kelly's just-filed story for the Fort Wayne Journal Gazette.

Here is Charles Wilson's story for the AP.

Posted by Marcia Oddi on Wednesday, July 18, 2012
Posted to Indiana Transfer Lists

Vacancy #2 on Supreme Court 2012 - Day 2: Report on the first 3 interviews

This is Prof. Schumm's report on the first three interviews of the morning of Day 2

Judge Mary G. Willis, Henry Circuit Court 1 (photo) (application)

In response to the opening questions, Judge Willis focused on two things that would help bring the Court into the 21st Century. First, she mentioned JTAC, a project “near and dear to her heart.” She emphasized that the need to lift records from the courthouse basement and into the clouds, literally and figuratively. Second, she is on the Strategic Planning Committee and helped draft the “New Way Forward” report. She has been able to implement some of the proposals in her county, including bringing JTAC to the county and unifying the courts, which allows it to be more efficient and share a budget. She would least enjoy the reduced ability to interact with citizens on a daily basis.

In response to a question from Chief Justice Dickson about her practice after law school and before taking the bench, Judge Willis said she handled “everything that came into the door,” including personal injury, bankruptcies, misdemeanors, juvenile cases, and contract disputes.

In response to another question about how often juries get it right, Judge Willis said she was impressed with how hard jurors work and how well they listen. She said jurors get it right 95 or 99% of the time.

In response to a question from Mr. Winningham, Judge Willis said she was drawn to the Supreme Court because of its interaction with the public through programs like Courts in the Classroom. In response to a related question from Chief Justice Dickson about how well she would transition to the Supreme Court and different job responsibilities, Judge Willis acknowledged she did not get the opportunity to write as much as she would like to as a trial court judge. She has spoken 30-40 times to various groups but has not written articles.

In response to a question from Ms. Northenor about her most complex case, Judge Willis mentioned a triple homicide case and a medical malpractice case in which she often prepared orders each evening about admissibility rulings.

In response to a question from Mr. McDonald, Judge Willis said if appointed she would not plan to move from Henry County, at least initially, because her son will be a junior in high school.

In response to a question from Ms. Kitchell, Judge Willis said judges need to have a “broad educational perspective” and “intellectual creativity.” She noted the Court is bound by precedent but needs to creative in responding to new issues that arise.

Judge Steven R. Nation, Hamilton Superior Court 1 (photo) (application)

At the beginning of the interview, Chief Justice Dickson said that Judge Nation would have interviewed for the vacancy earlier this year but withdrew his name because of a big jury trial in which he was involved. [ILB: This was likely the Charlie White criminal case] In response to the opening questions, Judge Nation said he would least enjoy attorney discipline cases, although they are necessary to do. As to the activities he would most enjoy, Judge Nation emphasized the importance of the public understanding the system by making clear decisions and maintaining open discussions with citizens. Judge Nation also emphasized the importance of consistency throughout a case, especially complex cases, noting that he ruled on 47 motions in one day in one case.

Chief Justice Dickson observed that Judge Nation had 17 years on the bench, 17 years as a prosecutor, but only 2 years in private practice. Judge Nation responded that as a judge he handled a wide variety of cases, including juvenile and mental health commitments.

In response to questions about technology from Chief Justice Dickson, Judge Nation discussed studies that show some young people listen better to television than live people.

In response to a question from Mr. McDonald about a justice’s role in addressing common law, Judge Nation said we need to be clear what is conveyed to the attorneys, which allows the legislature to make changes if it does not agree.

In response to Ms. Northenor’s question about the most complex case he had handled, Judge Nation mentioned the annexation of Geist, which included 30,000 pages of documents and required a decision in two weeks. He concluded, though, that cases involving children were the most complex.

In response to a question from Chief Justice Dickson about how often juries get it right, Judge Nation said to laughter that we won all 57 cases he tried as a prosecutor, so the jury got all of those right. As a judge, he had tried about 115 juries and did not understand its verdict in only two cases.

Ms. Erin Reilly Lewis, Indianapolis (photo) (application)

In response to the opening questions, Ms. Lewis said she would most enjoy working with programs like Courts in the Classroom and emphasized the importance of courts working with students and otherwise being involved in the community. She said she would least enjoy working on budgetary issues, especially in these difficult fiscal times.

In response to a question from Chief Justice Dickson about her several different legal positions, he asked her how they fit together and to sum them up. She said her work as an entry level lawyer at Foley prepared her for her five years of work at the U.S. Attorney’s office, which offered more litigation experience. She left after five years because she was ready for a new challenge and went to Baker & Daniels. She is now in-house counsel at IU Health.

In response to a question from Chief Justice Dickson about her experience with Indiana’s rules of courts, Ms. Lewis discussed a case tried in federal court that relied on Indiana statutes. She said she tries to keep herself up to date on Indiana and 7th Circuit cases.

In response to a question from Ms. Kitchell about the book she had co-authored, Ms. Lewis said she originally thought it would be a siloed project but turned out to be more collaborative and included reading chapters written by others.

In response to a question from Mr. Streeter about ideal characteristics of a justice, Ms. Lewis mentioned varied experience, merit, temperament, fairness, and hard work.

Mr. Winningham mentioned that Ms. Lewis was the youngest candidate and asked how she can compete with those with many years of experience. Ms. Lewis quoted her father as saying about cars, “sometimes it’s not the age of the car, it’s the mileage” and discussed her experience in a variety of settings.

Chief Justice Dickson asked if Ms. Lewis would rather try a case to the bench or to a jury. Ms. Lewis said she would rather try a case to a jury, although she had never done so.

In response to Mr. McDonald’s question about a justice’s role in addressing common law, Ms. Lewis said jurists should not legislate from the bench but are sometimes presented with unique circumstances in which there is no common law and must make new law.

In response to a question from Ms. Kitchell about mentors, Ms. Lewis said she considers Judge Sarah Evans Barker and had talked with her about the position before applying.

Posted by Marcia Oddi on Wednesday, July 18, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - " Judge rules Indiana owes IBM $12M over botched welfare program"

Jon Murray of the Indianapolis Star reports in a story filed at 9:24 AM that begins:

A Marion County judge today ruled that the state owes IBM $12 million in a dispute over the state's canceled welfare-modernization contract, but the victory falls short of the money IBM had sought.

That amount is in addition to $40 million that Judge David Dreyer previously ruled IBM deserved for subcontractor fees. The bulk of the new $12 million judgment covers $9 million in equipment it left in the state's possession when the contract was canceled. The state gets nothing out of the ruling, a blow for Gov. Mitch Daniels.

"Neither party deserves to win this case," Dreyer wrote in a 65-page ruling. "This story represents a 'perfect storm' of misguided government policy and overzealous corporate ambition. Overall, both parties are to blame and Indiana's taxpayers are left as apparent losers."

From comments on Twitter, it appears that the judge released the opinion only to the Star. The ILB hopes to post the entire opinion at some point ...

Here are earlier ILB entries on the case.

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

Environment - More on "Wis. Supreme Court to rule in factory farm case"

Updating this ILB entry from July 11th, the Washington Post reported the outcome later that same day in this AP story that begins:

MILWAUKEE — The Wisconsin Supreme Court dealt a blow to environmentalists concerned about water pollution from huge livestock farms Wednesday, when it said communities couldn’t set stricter standards than the state.

The ruling was believed to be the first decision by a state Supreme Court in about a half-dozen cases pitting neighbors and small farmers throughout the Midwest against so-called factory farms, which can have hundreds or even thousands of animals. Similar cases have been filed in Illinois, Indiana, Minnesota, Nebraska, Ohio and Oklahoma, and the decision was closely watched.

Here is the Wisconsin decision.

Posted by Marcia Oddi on Wednesday, July 18, 2012
Posted to Environment

Tuesday, July 17, 2012

Vacancy #2 on Supreme Court 2012 - Day 1: Report on the final 3 interviews

This is Prof. Schumm's report on the final three interviews of the afternoon of Day 1

Ms. Brenda A. Roper, Indianapolis (photo) (application)

In response to the opening questions, Ms. Roper responded that she would enjoy being available to the public and has especially enjoyed volunteering and working with children. She would enjoy bringing people together, skills she has honed through her work in teaching. She said she would least enjoy “the paperwork,” but noted it had been streamlined since her time as a Chief Bailiff in the 1990s.

In response to a question from Chief Justice Dickson about what motivated Ms. Roper to earn several degrees (MBA, LLM, JD, among others), Ms. Roper cited the influence of her mother.

In response to questions about her practice, Ms. Roper described her work for UAW Legal Services as a broad-based civil practice, including both plaintiff and defense work in family law, probate, and small claims. She also discussed her pro bono work in areas such as protective orders and bankruptcies. In response to a question from Mr. Winningham about what it takes to be a good bankruptcy lawyer, Ms. Roper said it was important to establish a good relationship with clients, often through an initial phone call.

In response to a question from Mr. Ulmer about characteristics most important for judges to possess, Ms. Roper mentioned honesty, openness, timeliness, and responsibility.

In response to a question from Chief Justice Dickson about an accomplishment that most stands out, Ms. Roper cited her work over the past four years with the IBA’s “Ask A Lawyer”program.

Ms. Carol Nemeth Joven, Indianapolis (photo) (application)

In response to the opening questions, Ms. Joven began with the least enjoyable experience: ruling on disciplinary cases. She cited her work in legal malpractice cases on both the plaintiff and defense side, which has provided experience that would be useful in resolving those cases. She would most enjoy the principal function of the Court: reviewing petitions to transfer and deciding which civil and criminal cases to accept and then resolving them.

In response to a question from Chief Justice Dickson about her areas of practice, Ms. Joven cited her representation of individuals, corporations, non-profits, and the State—in courts around the state and in federal court. She has practiced extensively in both trial and appellate courts and was recently involved in the Armour case that went to the U.S. Supreme Court. [ILB - see list of links here] In response to a question from Mr. Streeter about complex cases, Ms. Joven cited her work in an antitrust case as well as the Armour case.

Chief Justice Dickson commented on Ms. Joven’s husband’s election this year to the Marion Superior Court (commenting that Gov. Daniels had referred to slating as a “travesty” and all candidates who won the primary would be elected) and asked how she would resolve conflict issue if appointed. She would not rule on cases where her husband had been the trial judge and responded it was a “good question” whether recusal would be required in all Marion Superior Court cases.

In response to a question from Mr. Winningham about what she admired most about our supreme court, Ms. Joven said she admired the thoughtfulness of the opinions and the efforts to educate the public about the role of the court.

Mr. Lyle R. Hardman, Granger (photo) (application)

In response to the opening questions, Mr. Hardman said he would most enjoy looking through the nearly 1,000 petitions of transfer the Court receives each year. He described this as an academic and intellectual process. He would least enjoy disciplinary matters.

In response to a question about important attributes of justices, Mr. Hardman cited the importance of being even-keeled and having excellent writing and research skills. Chief Justice Dickson asked about collegiality, observing that a number of Mr. Hardman’s adversaries had written letters in support of his application. Mr. Hardman agreed collegiality was essential to a five-member court.

In response to a question from Mr. McDonald about the golf injury case [ILB - Pfenning], which he described as “advancing the common law,” Mr. Hardman responded that the opinion was consistent with earlier common law doctrine.

In response to a question from Chief Justice Dickson about how he keeps abreast of recent cases, Mr. Hardman said he goes to the Supreme Court’s website to read new opinions every day before he leaves the office.

In response to a question about Ms. Northenor about the most complex case he had handled, Mr. Hardman said he was involved in the State Fair stage collapse litigation, which was still in its infancy because new parties keep being added.

In response to a question from Chief Justice Dickson about a recent case in which the Court got it especially right or wrong, Mr. Hardman pointed to Williams v. Tharp [ILB: the "Pappa John" opinion], which he said had helped significantly in issues in his practice.

In response to a question from Mr. Winningham about what he most admired about the Indiana Surpeme Court, Mr. Hardman commented on the civility of the practice in the state. He noted that he was also a member of the Michigan bar where vituperative personal attacks are fairly common.

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Gov't. - "Gary R. Roberts, dean of the Indiana University Robert H. McKinney School of Law, will retire as dean of the school on June 30, 2013"

Here is the announcement today from the law school. Roberts will remain on the law school faculty after his retirement as dean.

This news should not be a surprise to anyone who recalls this ILB post from Oct. 29, 2009. It appears that Dean Roberts will turn 65 in 2013. The title of the 2009 post was adapted from a post at the blog Concurring Opinions -- "Flagrant Age Discrimination at IU-Indy School of Law?."

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Indiana Government

Vacancy #2 on Supreme Court 2012 - Day 1: Report on the first 3 interviews of the afternoon

This is Prof. Schumm's report on the first three interviews of the afternoon of Day 1

Mr. John P. Young, Indianapolis (photo) (application)

In response to the opening questions, Mr. Young emphasized he was a small businessman through rental properties and a law firm. His diverse range of experiences would be helpful in maintaining the fine reputation of the Indiana Supreme Court. Mr. Young also discussed the importance of technology and JTAC, discussing the advances from 1986 when his father first got a computer. Finally, Mr. Young discussed how he “grew up” at the Disciplinary Commission where he worked during law school and its importance to the profession. He said he would least enjoy situations when attorneys miss the issue in their advocacy or engage in attacks.

In response to a question from Mr. Ulmer about ideal characteristics of a supreme court justice, Mr. Young cited empathy, respect, strong dedication to precedent, and intellectual curiosity.

In response to a question from the Chief Justice about what he reads outside the legal realm, Mr. Young mentioned a biography of Teddy Roosevelt but could not recall the name of the author. He is only on page 26. His favorite book of all time is a biography of Michaelangelo.

Chief Justice Dickson said all the Mr. Young’s accomplishment jump out as “plaintiff’s lawyer” and asked what perception people might have if he is appointed. He noted the Indiana Supreme Court was recently cited as the fourth best court for business by the Chamber of Commerce. Mr. Young emphasized again that he is a small businessman and noted he is a member of the Chamber of Commerce. He said he is sympathetic to the concerns of businesses. He is very proud of his work as a plaintiff’s lawyer but before that worked in the public defender and prosecutor’s office and is currently representing some corporations who were sued.

In response to a question from Ms. Northernor about the most complex legal matter he had handled, Mr. Young cited a tobacco case from Muncie in the 1990s. He and other attorneys took over 300 depositions. The case lasted eight weeks. Although they lost the case, the case helped raise awareness of the concerns of second-hand smoke.

Judge Elaine B. Brown, Indiana Court of Appeals (photo) (application)

In response to the opening questions, Judge Brown cited three things: (1) consensus building in reaching decisions in a collegial manner in clear opinions; (2) the administrative function of the Court, specifically the work of the Judicial Center which provides assistance to trial courts; (3) she would enjoy being a role model for young women and girls. Judge Brown emphasized her work on the Court of Appeals in writing more than 600 opinions, which could not be better preparation for the work on the Supreme Court. Judge Brown recounted as a trial judge that her court reporter would sometimes bring her young child to court and commented when she saw a male judge: “Mommy, I didn’t know boys could be judges.” As to the final part of the question, Judge Brown noted to laughter that the Court of Appeals avoids death (penalty cases) and taxes (those cases go to the Indiana Tax Court), but she is confident she could “get up to speed” in those areas.

In response to a question from Chief Justice Dickson about particularly good Indiana Supreme Court cases, Judge Brown cited summary judgment cases, such as the errant golf ball case [ILB - Pfenning]. She initially did not respond to the part of the question involving one of the worst opinions or a case with which she disagreed. After Chief Justice Dickson followed up, she cited the Terre Haute mayor case [Burke v. Bennett] in which she reversed the trial court. She said she overthought the case and understood after reading the Indiana Supreme Court why it resolved the case as it did. Chief Justice noted to laughter that both of the opinions cited as the best and worst were ones he had authored.

In response to a question from Chief Justice Dickson about how often jurors “got it right” in her experience, Judge Brown responded “at least 95% of the time.”

In response to a question from Mr. McDonald about “giving up” her home in Evansville (her application lists her legal residence as Evansville although she has a home in Indianapolis as well), Judge Brown noted that she would go home to Evansville less frequently if she were appointed to the Supreme Court.

In response to a question from Mr. Winningham about the difference between the work of the Supreme Court versus the Court of Appeals, Judge Brown said it is sometimes surprising when the Court decides to grant or deny transfer and she would like to have a role in making those decisions.

Judge Marianne L. Vorhees, Delaware Circuit Court 1 (photo) (application)

In response to the opening questions, Judge Vorhees discussed the work of the Board of Law Examiners (beginning in 1996), which was sometimes difficult in telling individuals they could not sit for the bar because of character and fitness issues. Judge Vorhees also discussed her work with JLAP, which she described as a passion of hers, and specifically mentioned the concerns with aging lawyers and dementia.

In response to a question from Chief Justice Dickson about her work before taking the bench, Judge Vorhees explained that she primarily worked in civil litigation (plaintiff and defense personal injury, among other areas), in which she tried many cases to juries and to the bench.

Judge Vorhees discussed that Delaware County was the second in the state to become a unified circuit court, which requires the five judges to make decisions together. She specifically mentioned a recent mandate decision that she refused to sign. She said it is impossible to tell judges what to do. Rather, you can propose something, plant a few seeds, and then see if it later works out. Sometimes it takes two or three years to develop a consensus.

In response to a question from the Chief Justice, Judge Vorhees said she thought jurors in her court “got it right” 99% of the time. She was especially impressed with their verdicts in criminal cases. She said she has given up trying to predict verdicts in civil cases. She said a lot depends on whether the jurors like the plaintiff or not. Judge Vorhees described a case in which a woman had stuck her hand in a lion’s cage and lost her thumb and received a $30,000 award, which she said surprised her.

Chief Justice Dickson discussed Judge Vorhees’ stellar academic credentials and asked why she was drawn to the bench. She initially planned to be a teacher and would have taught Latin, math, and phys ed but ultimately pursued law school. When she was a part-time commissioner while practicing law and those positions became full-time, she decided to be a full-time judge and has never regretted the decision.

In response to a question from Ms. Northenor about what is the most important thing she would take to the Court, Judge Vorhees responded “fairness.” She said fairness is the highest accomplishment that could be paid to a judge.

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Vacancy #2 on Supreme Court 2012

About this blog - Bad news!

Bad news, we are having brownouts in the Old Northside, l don't know if anywhere else is affected.

Everytime I restart my computer the power goes out again. I am posting this from my iPad, but it has little functionaility for longer posts.

As soon as things stabilize I'll post Prof. Schumm's report on the interviews from this afternoon.

I can still do email.

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to About the Indiana Law Blog

Vacancy #2 on Supreme Court 2012 - Day 1: Report on the third set of interviews of the morning - only two this time

This is Prof. Schumm's report on the third set of interviews of the morning of Day 1 - this time just two before the lunch break

Ms. Andrielle M. Metzel, Indianapolis (photo) (application)

In response to the opening question, Ms. Metzel said she appreciated the administrative work of the court as the third branch of government with responsibility over a wide range of important programs. She emphasized her role in trying to better our system through her role on ethics committees and the bar associations. She would be most interested in the regulation of lawyers and cited her current experience on the Disciplinary Commission. She would find it most challenging to serve as a court of last resort in life without parole and death penalty cases. Although there are few cases, the gravity of decision would weigh heavily.

In response to a question from the Chief Justice about her involvement on a defense death penalty team fifteen years ago, Ms. Metzel said she supports the concept of the death penalty if the circumstances warrant. The Chief Justice asked about her work as a prosecutor, and she explained she often had 80 cases on her court day (Friday) and spent the rest of the week preparing for that day. None of her cases as a prosecutor went to jury, although she was first chair in a civil jury trial and a criminal jury trial. She represented both plaintiffs and defendants around the state and in federal court. In one age discrimination case, she did 45 depositions in thirty days.

Mr. Ulmer commented on Ms. Metzel’s hobbies of sporting-clays shooting and scuba diving, and Ms. Metzel said she does not do them at the same time. She also volunteered, to laughter, that she was “not packing.”

In response to a question from Mr. Streeter about the ideal characteristics of judge, Ms. Metzel cited fairness, integrity, soundness of moral character, and independence.

In response to a question from Mr. McDonald about the development of common law, Ms. Metzel said the court’s role is to adhere to the rule of law and not advocate from the bench. If the legislature has not spoken on the issue, the court has the obligation to interpret the existing law and fill in the blanks.

In response to a question from Ms. Northenor, Ms. Metzel said she has always wanted to be a judge and has been preparing for that role since early in his career. She said the timing was not right two years ago when her firm was undergoing a merger but now is. She loves practicing law and that passion would translate to the important work of the Court.

In response to a question about her biggest professional accomplishment, she mentioned her work with the ISBA Leadership Development Academy, which recently graduated its first class of 25 talented young lawyers.

Judge Marla K. Clark, Johnson Circuit Court, Juvenile Division (photo) (application)

In response to the opening question, Judge Clark said leadership in improving the administration justice is a critical function of the Court. Each justice has a duty to fight inequality and improve efficiencies. She discussed the importance of the Court’s rule-making function, which requires precision in drafting and benefits from experience in implementation and application at the trial level. Ms. Clark also discussed her work on several projects in juvenile court. She acknowledged she was younger than some applicants but noted she is older than Chief Justice Shepard was when appointed and approximately the same age as Chief Justice Dickson. I don’t believe she addressed the function she would enjoy the least.

Judge Clark mentioned the ideal characteristics of a judge or justice as leadership, ability to communicate, work ethic, and “obedience.” She explained the latter as limitations on not creating facts and the need to defer to the legislature.

In response to a question from the Chief Justice Judge Clark cited bringing Quest to Johnson County. With a tap of a mouse she can access a variety of crucial information in her juvenile cases. Without Quest or Odyssey, though, compiling something like a list of special judge cases requires looking through the file drawer.

Mr. Winningham followed up near the end of the interview to inquire about the activity Judge Clark would enjoy the least, and she cited attorney and judicial discipline cases.

In response to a question from Mr. McDonald, Judge Clark said she would continue to live in Johnson County if appointed to the Court. The commute is about 30 minutes if traffic is not bad.

Judge Clark speaks pretty quickly and her answers were not always easily heard at least at the perimeter of the room.

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - Photos from first 6 interviews

Via the Indiana Court, start here and use the Next button near the top right side of the photo to see all 12 photos so far.

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 4 today (and 22 NFP)

For publication opinions today (4):

In State of Indiana Military Dept., State Armory Board of the State of Indiana, and Governor Mitch E. Daniels, Jr. v. Continental Electric Co., Inc. , a 29-page opinion, Judge Baker writes:

The State had an agreement with a general contractor for an airport construction project in Gary. There was no contract between the State and one of the subcontractors. But the trial court erroneously determined that the State had breached a contract between the State and the subcontractor. In this case, the subcontractor’s remedy for any alleged breach in these circumstances was against the general contractor.

Additionally, the trial court erred in concluding that the subcontractor was entitled to recover from the State on the basis of quantum meruit. Contrary to the subcontractor’s contention, there was no confusion in the main contract about what was—or was not—to be included in the agreement. Moreover, there has been no showing that the State unjustly retained a benefit without having paid for it.

Appellants-defendants State of Indiana Military Department, State Armory Board of the State of Indiana, and Governor Mitch E. Daniels, Jr. (collectively, Indiana Military), appeal the trial court’s judgment in favor of appellee-plaintiff Continental Electric Company, Inc. (Continental Electric), on its claim against Indiana Military for breach of contract and quantum meruit. Specifically, Indiana Military argues that the judgment must be set aside because it had paid the general contractor on a particular project in full, and that Continental Electric failed to meet the elements of a four-part test that relates to the entitlement of subcontractors to recover under the contract as a general contractor would. Moreover, Indiana Military maintains that Continental Electric failed to establish that a measurable benefit was conferred on Indiana Military and that the retention of alleged benefits without payment would be unjust.

For the reasons stated above, we conclude that the trial court erred in awarding judgment in Continental Electric’s favor. Thus, we reverse.

Anthony W. Browning v. State of Indiana

Darrell Larue Brown v. State of Indiana

Mark Gaither v. Indiana Dept. of Correction, et al.

NFP civil opinions today (10):

John Doe a/k/a mspbis123, a/k/a Stacy Palombo v. Eve Carson (NFP)

Margaret Killion v. Jarrod Kendall, d/b/a Kendall Kontracting and Jarrod Kendall (NFP)

In Re: the Paternity of T.P., R.L. and W.M. v. B.P. (NFP)

In the Matter of the Term. of the Parent-Child Rel. of K.D., K.B., and B.Y.; and N.D., D.Y., and W.B. v. Indiana Dept. of Child Services (NFP)

Garry Balthes v. Concept Industries, Inc., Composite Technologies, LLC, and Shawn Eshragh (NFP)

Omnisource Corporation v. David E. Lallow, James Niswonger, Sr., 3 Rivers Metal Recycyling, LLC and J & D Real Estate, LLC (NFP)

Term. of Parent-Child Rel. of: Jo.L. (Minor Child), and J.L. (Mother) v. The Indiana Dept. of Child Services (NFP)

Payroll Disbursement Account 2, Inc. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development (NFP)

Term. of Parent-Child Rel. of: O.H. & J.M. (Minor Children), and C.H. (Mother) v. The Indiana Dept. of Child Services (NFP)

In the Matter of the Term. of the Parent-Child Rel. of: E.M.R., and V.H. & M.R. v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (12):

Kenneth Simmons v. State of Indiana (NFP)

Jason E. Hough v. State of Indiana (NFP)

Adrian Hardy v. State of Indiana (NFP)

Timothy Matson v. State of Indiana (NFP)

Larry C. Perry, Jr. v. State of Indiana (NFP)

William M. Steele v. Daniel Callahan (NFP)

Robert Spears v. State of Indiana (NFP)

Michael Berthiaume v. State of Indiana (NFP)

Gregory Hensley v. State of Indiana (NFP)

Dellia Castile v. State of Indiana (NFP)

Erik Morales v. State of Indiana (NFP)

Tracy Hertel v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Ind. App.Ct. Decisions

Vacancy #2 on Supreme Court 2012 - Day 1: Report on the second 3 interviews

This is Prof. Schumm's report on the second three interviews of Day 1

Judge Frances M. Gull, Allen Superior Court (photo) (application)

In response to the opening question, Judge Gull explained she would most enjoy the opportunity to create legal history. She is a “rule of law” person; she comes from a military family. She would also enjoy the administrative work of the Court. She sits on the executive committee of JTAC and has implemented technology changes in her court. She also assisted in drafting the jury rules and has presided over more than 500 jury trials. She would least enjoy the solitary nature of the court because she is a “gregarious person.”

Chief Justice Dickson asked how her vast criminal law experience would translate to the broader work of the Court. Judge Gull cited her administrative experience, which included drafting a lease and personnel issues.

In response to a question from Chief Justice Dickson, Judge Gull said if appointed she would likely commute from Fort Wayne initially because her husband is about a year or two from retirement.

In response to a question from Ms. Northenor, Judge Gull explained the most complex legal matter she had dealt with was DNA evidence in a case as a prosecutor. As a judge she presided over cases involving a mortgage fraud scheme.

In response to a question from Mr. Ulmer, Judge Gull emphasized the importance of thoughtfulness and patience in a judge or justice.

Mr. McDonald asked about limitation on voir dire, and Judge Gull said she only imposed time limitations. She “lets the lawyers do their job,” although they must be courteous to jurors. In criminal court the names of jurors are not disclosed. She usually limits the first round of voir dire to 1 hour in complicated cases and 15 minutes in a theft case.

In response to a question from Mr. Winningham, Judge Gull confirmed she had tried 400 jury trials as a prosecutor in eight years. She sometimes had trials day after day in the same week. She would bring an understanding of the rules of evidence, among other things, through that experience.

In response to a question from Mr. Streeter, Judge Gull said she would be a “strict constructionist.” If the statute is clear, she will apply it regardless of whether she agrees. She is a “rule follower” and a “stickler” for those who appear in her court.

Mr. Geoffrey G. Slaughter, Indianapolis (photo) (application)

In response to the opening question, Mr. Slaughter said the primary reason for applying was the opportunity to decide case and deciding what cases to decide. He said the bread and butter of his current practice is reading and writing, which he would relish doing as a justice. He also emphasized the public role of the court, which is important to helping citizens and lawyers understand the important function of the court. He noted that technology is the area in which he would be least suited to contribute.

Chief Justice Dickson asked what Mr. Slaughter learned from his time as a law clerk for Judge Letsinger, a long-serving criminal court judge in Lake County. Because of the volume of the caseload, Mr. Slaughter did a lot of “research on the fly.”

Chief Justice Dickson noted that Mr. Slaughter had been involved in the Federalist Society and asked what role religious and ideology have in deciding cases. Mr. Slaughter said his own views need to take a back seat to personal views. The judge’s responsibility is to give effect to the intent of those who drafted statutes, constitutions, and contracts—regardless of the judge’s own views. If a constitutional provision is violated, however, the court must be vigorous in vindicating it.

In response to a question from Ms. Kitchell about accomplishments, Mr. Slaughter cited his 12-year marriage to a fellow fan of the Chicago Cubs and IU football and professionally that he had maintained strong relationships with opposing counsel.

In response to a question from Ms. Northenor, Mr. Slaughter said he would bring hard work and a commitment to excellence to a Court that has developed an excellent reputation over the past generation.

Mr. Slaughter, a lifelong Republican, explained that he came to Indiananpolis to work for Attorney General Pam Carter, a Democrat through his college friend Matt Gutwein. With a few years of law school when Mr. Slaughter was living out of a suitcase doing document review for a large Chicago firm, Mr. Gutwein was preparing for his first Supreme Court oral argument.

Ms. Abigail Lawlis Kuzma, Indianapolis (photo) (application)

In response to the opening question, Ms. Kuzma responded she would most like to research and write about the law. She emphasized her experience in the administration of justice, including supervising a staff of 100 and overseeing technology improvements. She is very comfortable with public speaking and often does press interviews in her role at the Attorney General’s office and speaks at continuing education seminars. I do not believe she mentioned a least enjoyable function of the Court.

In response to a question from the Chief Justice about her experience “practicing law in the trenches,” Ms. Kuzma explained at the NCLC she was the primary litigator at the beginning and had a full caseload when she left. That work required her to become an expert in various areas of the law including housing and immigration.

In response to a question from Mr. Ulmer about a writing sample in an immigration case, Ms. Kuzma offered a lengthy explanation that included the Patriot Act and concerns of terrorism but quite frankly was over my head.

In response to a question from Ms. Northenor, Ms. Kuzma said the public has a right to expect fairness and integrity from judges. Every individual’s case is important and should receive the same attention as other cases.

In response to a question from Mr. McDonald, Ms. Kuzma said if the legislature has not addressed an issue the judge should decide the case narrowly.

In response to a question from Mr. Winningham about the role of diversity in the Commission’s selection process, Ms. Kuzma said gender is important and that she would add a “different skill set” to the analysis of the Court. A person has to be “qualified,” though, which must be the first consideration.

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - "The 7th Circuit has asked the Kansas Supreme Court to determine whether FedEx drivers are employees or independent contractors"

The July 12th 7th Circuit decision in Craig et al. v. FedEx (ILB summary here) is the subject of a July 16th Courthouse News story by Joe Celentino that concludes:

The 7th Circuit has asked state supreme courts to weigh in on cases with some frequency in the past two years.

In American Federation of Teachers v. Board of Education of the City of Chicago, the Illinois Supreme Court weighed in on whether tenured teachers laid off for economic reasons had the right to be rehired when openings arose.

And in George v. National Collegiate Athletic Association, the Indiana Supreme Court found that the ticket-distribution plan for the Men's Final Four did not constitute a "lottery" under state law.

The 7th Circuit subsequently adopted both courts' opinions.

Note: The headline to the CHNS story probably should say "Kansas" rather than "Indiana."

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Horse manure is raising a big stink in Cynthiana"

Valerie Werkmeister reported July 16th in The Posey County News:

Members of the Cynthiana Town Council found themselves embroiled in a controversy with a local resident over the legalities of keeping a horse, pony and a goat at her residence. Tara Davis, who resides on Main Street in Cynthiana had appeared with her husband, Rick, at last month’s council meeting regarding a nuisance complaint regarding having the animals within town limits. The Davis’ contended that they contacted both the town hall and Mindy Bourne of the Posey County Area Plan Commission to check if any local ordinances existed prior to the animals’ being brought to the property.

Tara, along with a neighbor friend only identified as Courtney, contended that she was informed there were no ordinances in place concerning having the animals on the property. The Davis’ contend the animals provide therapeutic benefits to help the Davis’ son, who has cerebral palsy and is deaf.

During a meeting on July 10, council members produced ordinance # 1992-11-4, concerning animals that are prohibited within the town. Council president Steve Cox admitted there were a few problems with the filing system at the Town Hall and they were unable to locate the ordinance until recently.

The ordinance states that a horse may only be kept within the town limits if the custodian has a minimum of one-acre of fenced land per horse. Council members contend that the Davis’ property does not meet these criteria and is therefore, in violation of the ordinance.

Tara then argued that she had contacted a lawyer who informed her that because the animals are for therapeutic uses, the Americans with Disabilities Act (ADA) would “trump any other ordinance.”

Cynthiana’s attorney, Jeff Ahlers argued that there are no Indiana laws that states therapeutic animals would override those by town ordinance. He also stated that he had spoken with her lawyer earlier that day, who informed Ahlers he had not yet been retained by the Davis’. Tara proceeded to say that she would be retaining his services the following day. * * *

Ultimately, as cooler heads prevailed, a compromise was reached. Tara agreed to remove the goat and the horse from the property. She would keep the pony and agreed to keep the smell from the manure piles from becoming a nuisance. All parties agreed to a 60-day trial period before returning to report on the status. The fines previously assessed were also rescinded.

ILB: Some readers may remember this June 29, 2010 ILB entry, to which today's story bears many parallels. The earlier report is from Kokomo, where "the existence of the law wasn’t discovered until months after Neal paid thousands to locate a horse barn on her South Union Street property. * * * A clerk apparently happened upon the 1966 ordinance in a drawer. It is not a part of the Kokomo Code of Ordinances, which is posted by the City Attorneys' Office on the City of Kokomo website."

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Indiana Government

Courts - 3rd Circuit rules: "Pay-for-delay drug settlements are illegal"

From a long analysis by Alison Frankel in "On the Case." A quote:

On Monday, the 3rd Circuit Court of Appeals issued a shocker of a ruling in a pay-for-delay case against Schering-Plough (now owned by Merck). The three-judge appellate panel split with three other federal circuits and held that when a brand-name drug manufacturer pays a generic rival to drop its challenge to the brand-name drug patent, the settlement is prima facie evidence of an illegal restraint of trade. The decision throws down the gauntlet on the legality of pay-for-delay settlements, increasing the likelihood that the U.S. Supreme Court will have to take up the issue.
More from How Appealing.

[More] Here is coverage from the Washington Post.

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Courts in general

Vacancy #2 on Supreme Court 2012 - Day 1: Report on the first 3 interviews

This is Prof. Schumm's report on the first three interviews of Day 1

Mr. Thomas Fisher, Indianapolis (photo) (application)

In response to the opening question, Mr. Fisher said that every time he thinks about the functions of a judge, he gets more and more excited. Asking him the least favorite function would be like asking his 12-year-old son about his least favorite video game. He mentioned the intellectual and collegial engagement with other justices as his favorite activity. One aspect of the docket that would be distasteful but necessary would be professional discipline cases (for both lawyers and judges).

Chief Justice Dickson noted Mr. Fisher’s extensive appellate experience but asked about his knowledge, background, and experience at the trial level. Mr. Fisher noted his work in state and federal trial courts, often involving dispositive motions. He also explained the value of reviewing appellate records in providing a better understanding of the function of trial courts. He discussed the Ahmad Edwards case in particular, which involved a defendant with mental difficulties who wished to represent himself, in which the trial record was critical to the decision ultimately reached by the U.S. Supreme Court.

In response to a question from Mr. Ulmer asked about qualities of an Indiana Supreme Court justice, Mr. Fisher cited a deep sense of fairness, scholarly approach to the law, and intellectual curiosity

Mr. Fisher discussed his attendance at a recent conference of Solicitor Generals about how judges read briefs, often on iPads now rather than on paper, which suggests more point headings might be helpful, among other changes. Mr. McDonald followed up with concerns about practitioners who only occasionally did appeals, and Mr. Fisher responded he would want to hear the concerns of those practitioners.

In response to a question from Ms. Northenor about what he “would take to the court,” he said he would bring an appellate background that is not currently covered.

In response to a question from Mr. Winningham about areas of law that most interest him, Mr. Fisher emphasized his love of both state and federal constitutional law. Chief Justice Dickson followed up by noting the court does not spend much time on constitutional issues but rather more “mundane” issues, such as whether a passenger in a vehicle is in a public place for purposes of the public intoxication statute. [ILB: see Brenda Moore v. State] Mr. Fisher responded that he would not be bored. Chief Justice Dickson mentioned Mr. Fisher’s membership in the Federalist Society and asked the role of ideology in making decisions. Mr. Fisher responded that the Federalist Society is largely a “debating society,” and that judges should set aside their own ideology and base decisions on precedent and the text and history of the state and federal constitutions.

In response to a question from Ms. Kitchell about the balance between stability and development of the law, Mr. Fisher responded that courts are designed to be incremental, and emphasized the important role of the legislature in developing law.

Mr. Streeter asked what sources of law had shaped his thinking, and Mr. Fisher responded the Federalist Papers, citing No. 78. Mr. Fisher has a shelf full of Federalist Papers, which he gives as a parting gift to each law clerk who works in his office. He specifically mentioned the approaches of Justices Alito and Thomas.

Ms. Alicia A. Gooden, Indianapolis (photo) (application)

Ms. Gooden would most enjoy reading appellate briefs, hearing oral arguments, and participating with justices “in this very room” to contribute to the Court’s decisions and render thoughtful opinions. She also mentioned the administrative functions through committees and the Division of State Court Administration as enticing functions for which she was well prepared through her work in the Paternity Division. She emphasized her travels and experience around the state and would like to represent the judicial system to help improve the view of the public of lawyers and the judicial system. She has spoken with students from kindergarten to law school and would like to continue to do that. She would least enjoy the attorney and judicial discipline cases.

Chief Justice Dickson asked about Ms. Gooden’s “practice of law” before joining the bench or working as a mediator, and Ms. Gooden explained she practiced for a year as a public defender and then three and a half years with Kiefer & McGoff in the areas of criminal and family law. Ms. Kitchell asked how mediation experience would help prepare Ms. Gooden for the Court, she noted the collegiality and camaraderie in dealing with lawyers but also the exchange of ideas with other mediators in her group about a wide variety of case and areas of the law.

In response to Mr. Ulmer’s question about characteristics of an ideal Indiana Supreme Court justice, Ms. Gooden cited wisdom, which includes intellect balanced with common sense. She added insight, restraint, and thoughtfulness.

Ms. Northenor asked about experience managing subordinates. Ms. Gooden supervised 6-10 judicial officers initially in the paternity division, which later was reduced when the positions became full-time. She also supervised several court staff members.

In response to a question from Mr. Winningham about the diversity of her prior experience (specifically, the paternity division and as president of the Junior League), she cited managing the voluminous caseload of the paternity division and the ability to relate to people of all background through the Junior League.

In response to a question from Mr. Streeter about a current or past justice of the U.S. or Indiana Supreme Court she admires, she cited instead Southern District Judge Bill Lawrence who just “gets it.” She cited his collegiality and temperament.

In response to a question from Mr. Winningham about Supreme Court programs, she cited support for the ICLEO program and working with younger people in general as well as the possibility of expanding appellate mediation.

In response to a question from Mr. McDonald about the development of common law, Ms. Gooden emphasized the importance of judicial restraint while being cognizant of how cases affect citizens and businesses throughout the state.

Ms. Karen R. Orr, Monticello (photo) (application)

Ms. Orr would most enjoy the core function of drafting opinions. She enjoys the analytical process from law review, through her clerkship with Judge Sullivan, and now in the practice of law. She would also enjoy the “public function” of the Court, citing her active involvement in the Indiana Bar Foundation, ISBA, and ICLEF. Ms. Orr would least enjoy the disciplinary cases. It would be difficult to see the ways that lawyer and judges have failed, although this is a critical function of our self-regulating profession.

Chief Justice Dickson asked if Ms. Orr, who lives in Monticello, would move to Indianapolis if appointed. She said she had discussed this with her husband, who is retired from partnership and now of counsel at Stuart and Branigan, and they would move to Indianapolis.

In response to a question from Ms. Northenor about strengths she would bring to the bench, Ms. Orr discussed the broad area of her prior experience in several different legal areas in addition to her analytical skills. Ms. Northenor asked about weaknesses, and Ms. Orr expressed surprise that there are 49 Supreme Court committees, with which she has had little experience. Mr. Ulmer asked about her experience representing “the little guy,” which Ms. Orr said she had done in practice in Covington.

In response to a question about qualities of a good justice, she responded well-informed, courteous, and fair.

Ms. Kitchell asked how to deal with statutes that lead to an “absurd result,” and Ms. Orr responded that Courts must apply statutes nevertheless.

Mr. Winningham asked if it “was important to have a woman on the Supreme Court.” Ms. Orr said we currently have a very strong Court but that a woman’s view would be helpful in the way that every diverse experience would help. She noted the Court has enhanced and promoted diversity in its many functions.

Chief Justice Dickson asked Ms. Orr to discuss specific Indiana Supreme Court opinions (good and bad). On the positive front, she mentioned a cases involving Purdue University in which she had been involved. She cited the Barnes case as a difficult case. She would not say the opinion was wrongly decided but that it led to controversy and caused the legislature to change the law.

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Vacancy #2 on Supreme Court 2012

Courts - "Even Scalia's Dissenting Opinions Get Major Scrutiny"

Worth reading (or listening to), from Nina Totenberg of NPR.

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Courts in general

Ind. Gov't. - "School-transfer criteria under fire: Districts taking only top students"

Niki Kelly of the Fort Wayne Journal Gazette reports in a long story that begins:

INDIANAPOLIS – Lawmakers focused on a new kind of cherry-picking Monday – public schools using criteria such as passage of state accountability tests when deciding whether to accept a transfer student.

For years there has been resentment over private schools being able to selectively choose students, and now the same debate has bled into public schools.

“In this case school choice is only available to choice students,” said Dawn McGrath, a school administrator in Kokomo. “It’s the way in which students are chosen that makes this different.”

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Indiana Government

Vacancy #2 on Supreme Court 2012 - "Judge Gull record on appeals appealing"

That is the heading to this column in the Fort Wayne Journal Gazette this morning, authored by Tracy Warner, editorial page editor:

Considering the primary duty of a Supreme Court justice is to review the decisions of lower courts, how often trial judges have been overturned on appeal is one way to gauge the quality of their skills. By this measurement, Allen Superior Court Judge Fran Gull fares well.

Of the 22 applicants for the seat on the Indiana Supreme Court, Gull is among seven trial court judges. Joel Schumm, a law professor at the Indiana University-Robert H. McKinney School of Law, analyzed the appeals records of those seven judges for the Indiana Law Blog, which published the results last week.

Of the seven judges, Gull has seen far more cases appealed – 201 – mostly due to her years of service on the bench and heavy caseload. Only one other trial court judge who is a candidate for the state’s high court had more than 100 appeals – Hamilton Superior Court Judge Steve Nation with 115.

Schumm found that Gull had been overturned on appeal just 19 times – meaning the higher courts agreed with her 90.55 percent of the time. The only other judge with a better percentage was Tippecanoe Superior Court Judge Loretta Rush, who was reversed only 7.27 percent of the time. But that was based on just 55 appeals. Nation, on the other hand, was reversed 36 times – nearly twice as many cases as Gull – or 31.3 percent of the appeals.

One case that saw Gull overturned was the death sentence of Joseph Corcoran, a case that has perplexed both the state and federal courts for the past 12 years. Though overturned, the appeal essentially resulted in Gull re-writing her basis for imposing the death penalty, which the state’s high court later affirmed.

Here is Schumm's analysis of Judge Gull's appealed decisions. Here is an overview of all seven trial judges.

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - 14 of the 22 interviews are today

The Judicial Nominating Commission (JNC) interviews of the candidates for the upcoming Supreme Court vacancy begin this morning at 9 a.m. Prof. Joel Schumm will be there, as he was in 2010 and again earlier this year. He will be sending reports back to the ILB.

Here is the schedule. Look for Prof. Schumm's first post shortly after 10 a.m., when the JNC takes a 15-minute break after the initial three 20-minute interviews.

The ILB has learned that each applicant has been asked to address this question in their introductory remarks:

“As you know, as a justice on the Supreme Court, you would be a participant in the court of last resort establishing Indiana legal precedent. In addition, there would be opportunities for various other kinds of other service. Of all of the Court’s functions, which would you enjoy the most, and which would you enjoy the least? Are there one or two functions for which you feel you are especially well qualified?”
Presumably this means in addition to the main work of a justice of the Indiana Supreme Court, issuing opinions and orders.

Posted by Marcia Oddi on Tuesday, July 17, 2012
Posted to Vacancy #2 on Supreme Court 2012

Monday, July 16, 2012

Ind. Courts - New official photos of our current Supreme Court

On the bench.

Justices standing.

Posted by Marcia Oddi on Monday, July 16, 2012
Posted to Indiana Courts

Vacancy #2 on Supreme Court 2012 - More on: How have the 7 trial court judges fared?

Today Ind. University-Robert H. McKinney School of Law professor Joel Schumm has prepared this wrap-up to his entries last week on the seven trial judge applicants.

The following table summarizes last week’s posts that reviewed how the seven trial judges' cases had fared on appeal. The links are to the original entries on each judge.


Judge County/Court Cases Assessed Cases Reversed Reversals
Clark Johnson Circuit Juvenile Div. 2 1 50%
Gull Allen Superior 201 19 9.45%
Nation Hamilton Superior 1 115 36 31.3%
Rush Tippecanoe Superior 3 55 4 7.27%
Tavitas Lake Superior 3 Civil 18 6 33.3%
Vorhees Delaware Circuit 1 93 17 18.3%
Willis Henry Circuit 39 7 18%


This ILB post from July 11th summarized the methodology and included a few caveats, which will be amplified a bit here.

First and foremost, each of these judges has handled thousands of cases, only a small fraction of which have been appealed. Most cases are resolved by agreements or voluntary dismissals, which leaves nothing to appeal.

In other cases judges may have done such a wonderful job resolving the case or have entered such air-tight findings that neither party pursued an appeal. This is impossible to quantify and is not included in this table or anywhere else, unfortunately.

In other cases the losing party may not have been able to afford an appeal or an indigent defendant entitled to appellate counsel may not have fully be apprised of that right. Those topics are beyond any Westlaw search.

Second, the numbers include all appellate opinions posted on Westlaw, which includes all published opinions but only those not-for-publication opinions issued beginning in 2007. Therefore, some long-serving judges may have fared a little better than the posted rate, as I suspect a reversal is more likely to be issued as a "for publication" case than is an affirmance.

Next, some of the judge have been assisted by magistrate judges or have served as magistrate judges whose rulings must be approved by the presiding judge. These numbers include both, and some may dispute who is to blame for a specific reversal. As Judge Bradford gracefully explained in his Supreme Court interview earlier this year, as the presiding judge he is ultimately responsible for each ruling, including the notorious Wiccan case.

Finally, as a general point of reference, slightly more than 20% of cases are reversed or remanded on appeal in Indiana. Indigent criminal defendants have an automatic right to appeal at no cost, and the reversal rate in criminal cases is typically around 14%. Civil litigants, who must generally pay the expense of an appeal, pursue appeals less frequently and are more successful with a 35% reversal rate.

Although some cases present multiple issues in which only one issue was reversed, the case still counts as a reversal. The issue may seem like a major one that causes lawyers to scratch their heads and wonder, “What was the judge thinking?” Others, however, may be technical issues that have no real impact on the case. The statistics do not differentiate between these. Nor do they consider cases in which judges made fairly significant errors that were found harmless or were not preserved for review.

With those limitations in mind, the number and specific issues on which trial judges have been reversed is worth considering. It provides some idea of how the judge has approached issues in the past, which may be a good predictor of how he or she may approach them in the future.

Posted by Marcia Oddi on Monday, July 16, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Gov't. - "Many Governors Are Still Unsure About Medicaid Expansion"

A few quotes from a long story by Michael Cooper in the Sunday NY Times:

The initial reaction to the court’s ruling split along party lines. More than half a dozen Republican governors — including those of Texas and Florida, which have the nation’s largest populations of poor uninsured residents — said they would not expand their programs because Medicaid already eats up an unsustainable share of their budgets. A slightly bigger number of Democratic governors said they would move swiftly to expand coverage in their states, with the federal government pledging to pick up all the costs at first and 90 percent of them after 2020.

But as they gathered here this weekend at a meeting of the National Governors Association, most governors in both parties said that faced with a choice they did not expect to have, they needed to study how to proceed with this significant change in federal-state relations. Not all Democrats were leaping at the chance to expand their programs, and not all Republicans were ruling it out.

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

Ind. Gov't. - State Police "crime labs catch up on DNA tests"

So reports Jeff Wiehe in this story today in the Fort Wayne Journal Gazette.

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

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

For publication opinions today (2):

In M & M Investment Group, LLC v. Ahlemeyer Farms, Inc. and Monroe Bank, a 12-page opinion, Judge Kirsch writes:

M & M Investments, LLC (“M & M”) appeals the trial court’s order denying its petition for a tax deed as to property of which Monroe Bank was the mortgagee. M & M raises two issues, which we restate as:

I. Whether the trial court erred when it failed to certify Monroe Bank’s challenge to the constitutionality of Indiana Code section 6-1.1-24-3(b) to the Attorney General of Indiana (“Attorney General”), which would have allowed the Attorney General to intervene in the action; and
II. Whether Indiana Code section 6-1.1-24-3(b), which governs the notice to be given a mortgagee when real property had been scheduled to be sold at tax sale, violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution when a mortgagee has a publicly recorded mortgage. * * *

[I. Certification to Attorney General of Indiana] Although the trial court failed to certify the constitutional challenge as required by Indiana Code section 34-33.1-1-1, we note that the Attorney General has appeared in this appeal as an amicus curiae and has filed a brief, arguing the merits of the case. Because the Attorney General has not requested that the case be remanded and has been given the opportunity to present evidence relating to the question of constitutionality and argument on the question of constitutionality, we will consider the merits of this appeal without remanding to the trial court in order to allow the Attorney General to intervene. However, we caution trial courts to follow the statutory procedure under Indiana Code section 34-33.1-1-1 when faced with constitutional challenges. * * *

[II. Constitutionality of Indiana Code Section 6-1.1-24-3] We therefore conclude that the Indiana pre-tax sale notice statute violates the Due Process Clause of the Fourteenth Amendment because it does not require the government to provide sufficient notice prior to the tax sale either by mail or by personal service to mortgagees who have publicly recorded mortgages, even if such notice is not requested by the mortgagees, and because it provides that, even if the government fails to mail the requested notice or the notice is undeliverable for some reason, the validity of the tax sale will not be affected. The trial court correctly denied M & M’s petition for a tax deed. Affirmed.

In Kyle L. Doolin v. State of Indiana , a 10-page opinion, Judge Kirsch writes:
Following a bench trial, Kyle L. Doolin (“Doolin”) was convicted of possession of marijuana1 as a Class A misdemeanor. He appeals and raises the following restated issue: whether the trial court abused its discretion when it admitted into evidence the results of an in-court field test of a substance alleged to be marijuana. We affirm. * * *

Here, there was substantial other evidence, besides the result of the in-court field test, that the plant material in question was marijuana. First and foremost, Deputy Petree testified without objection that Doolin had admitted to him at the jail that “the marijuana was his” and that “he wanted to take responsibility for it.” Second, the circumstances surrounding the location of the substance – in a baggie, inside a velvet bag along with a set of scales hidden in a music CD case, all inside a locked glove box – suggest that it was not intended to be discovered. See Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010) (identity of drug can be proven by circumstantial evidence), trans. denied. Third, Deputy Petree identified the green leafy substance as marijuana based on its odor and appearance.

NFP civil opinions today (1):

In Re: The Paternity of J.D. and D.D.; B.D. (Father) v. C.H. (Mother) (NFP)

NFP criminal opinions today (4):

James W. Hamilton v. State of Indiana (NFP)

Stephen Duane Rush v. State of Indiana (NFP)

Timothy Leon Jester v. State of Indiana (NFP)

Austin Brown v. State of Indiana (NFP)

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

Ind. Decisions - Transfer list for week ending July 13, 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, July 13, 2012. It is one page (and 16 cases) long.

No transfers were granted last week.

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

Ind. Gov't. - A national look at the statistical impact of voter ID laws and a closer look at Indiana's voter registration rolls

Nate Silver's political techie column, "Political Calculus," in the NYT, yesterday focused on "Measuring the Effects of Voter Identification Laws."

Closer to home, Maureen Hayden of the CNHI Statehouse Bureau yesterday looked at "Indiana voter rolls coming under scrutiny," quoting retired Supreme Court Justice Ted Boehm and "the recent Pew Center on the States report on bloated voter registration rolls".

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

Vacancy #2 on Supreme Court 2012 - Participation of the Applicants from the Court of Appeals

This analysis was prepared by Indiana University-Robert H. McKinney School of Law professor Joel Schumm.

Before joining the Court of Appeals, Judge Bradford and Judge Brown both served as trial court judges. Rather than reviewing the reversal rates from those positions several years ago, this post considers their more recent work at the Court of Appeals based on data included in the Court’s annual reports from the past three years. Specifically, the following three tables show the number of majority opinions, the number of dissenting opinions, and the number of oral arguments for each judge as well as the average among all Court of Appeals’ judges.

Majority Opinions
  2009 2010 2011 3-year
average
Judge BRADFORD 155 158 153 155
Judge BROWN 151 150 153 151
COA average
(excludes Senior Judges)
162 151 153 155

Dissenting Opinions
  2009 2010 2011 3-year
average
Judge BRADFORD 1 8 6 5
Judge BROWN 18 5 12 11.7
COA average
(excludes Senior Judges)
7.9 5.5 5.6 6.3

Oral Arguments*
  2009 2010 2011 3-year
average
Judge BRADFORD 13 21 21 18.3
Judge BROWN 8 22 9 13
COA average
(excludes Senior Judges)
14.7 20.8 15.5 17
*These numbers include both “writing” and “panel” cases.

Some have asked how the decisions of each judge have fared on transfer to the Indiana Supreme Court. Unlike reversal rates of trial judges, which can be easily determined through a quick Westlaw search, reversal rates for appellate judges would require reading every Supreme Court opinion, then going back to the Court of Appeals’ opinion to determine which judges were on the panel. This would be further complicated by concurring and dissenting opinions. Although some sort of assessment could be made with a very large investment of time, the sort of binary (affirmed or reversed) analysis used for trial court reversals would not work well for review of appellate decisions, where the appellate judge may have gotten: (1) the outcome wrong and the reasoning wrong; (2) the outcome correct but the reasoning wrong; (3) the outcome wrong but the reasoning essentially correct; (4) both the outcome and the reasoning correct; as well as various shades of gray within each category that would require qualitative judgments.

Posted by Marcia Oddi on Monday, July 16, 2012
Posted to Vacancy #2 on Supreme Court 2012

Environment - "Asian carp could reach all five Great Lakes"

A quote from the AP story by John Flesher:

The analysis, released by Canada's Fisheries and Oceans ministry after a 16-month study, is "sobering," said Michael Hansen, chairman of the Great Lakes Fishery Commission. "It concludes that arrival of Asian carps is looming, and should the fish become established in the Great Lakes, that their effects on the ecosystem would be severe."
[More] See this July 13th story in the Chicago Tribune by Cynthia Dizikes, headed "Report says Asian carp could thrive in Great Lakes: Regional panel beefs up monitoring efforts after DNA found in Lake Calumet."

Posted by Marcia Oddi on Monday, July 16, 2012
Posted to Environment

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, July 15, 2012:

From Saturday, July 14, 2012:

From late Friday afternoon, July 13, 2012:

Posted by Marcia Oddi on Monday, July 16, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/16/12):

Next week's oral arguments before the Supreme Court (week of 7/23/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/16/12):

Next week's oral arguments before the Court of Appeals (week of 7/23/12):

Thursday, July 26

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, July 16, 2012
Posted to Upcoming Oral Arguments

Sunday, July 15, 2012

Vacancy #2 on Supreme Court 2012 - Supreme Hobbies

This from Indiana University-Robert H. McKinney School of Law professor Joel Schumm, who writes: "For those tired of all the tables and statistics, here’s something different for the weekend."

Unlike the population at large, no interest in TV and very high levels of fitness

Question VII.H. instructs applicants: “Describe your hobbies and other leisure activities.” This question offers a short diversion from applications that often run more than twenty pages of legal topics with little information about the applicant as a person. Commission members will occasionally address this question during applicant interviews such as a question of Mark Massa about his interest in reading non-fiction.

The majority of applicants mentioned some variation of spending time with family members (usually focusing on children while often mentioning spouses as well), but these responses were almost always coupled with an activity, which are categorized and described below.

Fitness/exercise

Although some applications generally mentioned staying in shape, fitness, or working out, others included specific activities—some included many of these. Here is a sampling:

Reading

A majority of applicants listed reading (Bradford, Brown, Fisher, Hardman, Kuzma, Lewis, Joven, Orr, Roper, Rush, Slaughter , Tavitas, Vorhees ), while some offered more detail, including non-fiction and biographies (Kozicki), the “morning newspaper” (Orr), and “anything that doesn’t make me so comfortable that I fall asleep”(Roper).

Outdoor activities

Applicants listed a variety of outdoor activities, including golf (Bradford, Metzel, Nation), waterskiing (Bradford), fishing (Bradford), “sporting-clays shooting” (Metzel), and scuba diving (Metzel). Several mentioned gardening (Fisher, Gooden, Orr, Slaughter ). Judge Gull is especially committed to this, canning tomatoes and making jellies, jams, pickles, and vinegars.

Travel

Several also find enjoyment in traveling (Brown, Clark, Gooden Gull, Metzel, Nation, Joven, Parsons, Tavitas, Willis), including mentions of regular vacation spots by name: Mackinac Island (Willis), Sanibel Island (Tavitas) , and Crooked Lake in Steuben County (Gooden).

A variety of other activities:

The hobby that has probably paid the largest monetary dividend: trivia, which was listed by Ms. Kozicki, who won more than $30,000 on Jeopardy last year.

Sports teams

No one claimed to be an avid Colts or Pacers fan. The only two sports teams mentioned were the Chicago Cubs (Slaughter) and Notre Dame (Tavitas, who has attended Notre Dame games for decades).

Finally, a quick comparison

How does this list compare to the population at large? A recent time use survey from the Bureau of Labor Statistics showed more than half of the population’s leisure time is spent watching television. 78.3% of the population engages in the activity, compared to just 18.6% who participate in sports, exercise, and recreation. None of the Supreme Court applicants even mentioned television while all but one listed one or more fitness-related activities.

Posted by Marcia Oddi on Sunday, July 15, 2012
Posted to Vacancy #2 on Supreme Court 2012

Saturday, July 14, 2012

Vacancy #2 on Supreme Court 2012 - "Lake judge to make her case for Supreme Court seat"

Dan Carden reports in a NWI Times story posted this evening:

INDIANAPOLIS | Lake Superior Judge Elizabeth Tavitas will participate this week in a 20-minute interview that could change her life and the history of Indiana.

The 50-year-old Munster resident is one of 22 applicants for an upcoming vacancy on the Indiana Supreme Court. On Wednesday, Tavitas will explain to the Indiana Judicial Nominating Commission, headed by Chief Justice Brent Dickson, a Hobart native, why the panel should recommend her to Gov. Mitch Daniels for appointment to the state's high court.

Tavitas certainly has sufficient legal experience. Daniels appointed the 1990 Notre Dame Law School graduate to the Lake County bench in 2006.

As a Gary-based civil judge, Tavitas presides over myriad family law matters, including divorce, child custody, parenting time, child support and related legal issues. She's also acted as a special judge for cases involving tort claims, medical malpractice, contract disputes and other complex litigation.

Tavitas handled 2,689 cases in 2011 while working with with two magistrates and managing a staff of nine.

Prior to her judicial appointment, Tavitas worked in private practice and later served eight years as a Lake juvenile court referee where she oversaw more than 1,200 parental rights-termination cases between 1998 and 2003.

A side-bar to the story points out that 9 of the candidates have ties to Northwest Indiana or Chicago.

Posted by Marcia Oddi on Saturday, July 14, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - How to access

For those of you looking for a complete list of entries re the upcoming vacancy on the Supreme Court, use this link.

You can always find links to the various ILB categories in the right margin, under the white heading: "Archives by Category."

Posted by Marcia Oddi on Saturday, July 14, 2012
Posted to Vacancy #2 on Supreme Court 2012

Friday, July 13, 2012

Ind. Courts - Bei Bei Shuai rejects plea offer

Charles Wilson of the AP reports this afternoon:

A Chinese immigrant who Indiana prosecutors say ate rat poison while eight months pregnant has rejected a plea agreement that would have negated a murder charge in her newborn baby's death.

Authorities say Bei Bei Shuai (Bay Bay Shway) was in court Friday and turned down prosecutors' offer to plead guilty to a lesser charge of attempted feticide. Had she accepted the deal, Shuai could have faced six to 20 years in prison or a suspended sentence.

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

Posted by Marcia Oddi on Friday, July 13, 2012
Posted to Indiana Courts

Vacancy #2 on Supreme Court 2012 - How have the judges fared? Judge Mary Willis

As explained in this post headed "How have the 7 trial court judges/applicants fared?" Indiana University-Robert H. McKinney School of Law professor Joel Schumm is reviewing the records on appeal of the seven trial judge applicants for the upcoming Supreme Court vacancy. This analysis of Judge Mary Willis' record is the seventh and final of those entries.

Judge Mary Willis, Henry Circuit Court

Appellate reversals: 7
Appellate cases assessed: 39
Reversal rate: 18%

Indiana Supreme Court decisions

Galloway v. State (Ind. 2010) (3-2 opinion written by Justice Sullivan)
Despite nonconflicting expert and lay opinion testimony that defendant Gregory Galloway was insane, the trial court rejected the insanity defense after concluding that the defendant could continue to be a danger to society because of an inadequate State mental health system. This was insufficient to sustain the trial court's finding because there was no probative evidence from which an inference of sanity could be drawn.

Indiana Court of Appeals Civil decisions

Miller v. Miller (Ind. Ct. App. 2008) - Wife argues that, had she been afforded the opportunity to present evidence regarding the application of the tax refunds, she would have demonstrated that the tax preparation fee was, in large part, attributable not to Husband and Wife's individual tax returns but to work performed for M & M Enterprises, LLC, a business solely owned by Husband. Despite Husband's argument that the amount at issue is too minute to be trifled with, we conclude that Wife has a right to be heard on this issue. Because the record is devoid of evidence regarding the proper application of the tax refunds, we reverse and remand to the trial court to hear evidence on this issue. In all other respects, we affirm the trial court's judgment.

Knightstown Banner, LLC v. Town of Knightstown (Ind. Ct. App. 2008) - We reiterate that we cannot discern which of the methods the trial court intended to use in calculating the amount of the award. Although the language of the findings seems to indicate that the amount of the award would be the same using either methodology, that is not the case. Thus, we remand with instruction to clarify whether the amount of attorney fees is to be calculated using the subtraction method reflected in Finding No. 11, or the addition method reflected in Finding No. 12. If it is the former, then the appropriate amount is $55,512.46. If it is the latter, in determining the amount of the award, the trial court must first correct the erroneous findings with respect to the two addends used in the calculation to reflect that (1) attorney Babb identified the range of attorney fees that is reasonable for an appeal of this type as $55,000–$72,500, and (2) the attorney fees attributable to trial representation presumably was $15,212.46.

Short on cash.net v. Department of Financial Institutions (Ind. Ct. App. 2007) - Furthermore, the trial court did not abuse its discretion in granting the State's Motion for Default Judgment against SOC. And, although the Motion for Leave to Add Necessary Parties made specific allegations against the second-generation defendants, the Amended Complaint did not include these allegations. Thus, the trial court abused its discretion in granting Default Judgment against Short and HCO.

Knightstown Banner, LLC v. Town of Knightstown (Ind. Ct. App. 2005) - The Banner raises three issues on appeal, one of which we find dispositive and which we restate as follows: Whether documents created by the attorney appointed by Knightstown's reciprocal insurer, memorializing the terms and conditions of a settlement of a civil rights lawsuit brought by a former employee against Knightstown, are public records under the Indiana Access to Public Records Act (APRA).

Indiana Court of Appeals Criminal decisions

Terry v. State (Ind. Ct. App. 2010) - With regard to his character, we observe that Terry is now fifty-five years old and has no prior criminal convictions. We recognize his military service. We also note his willingness to plead guilty to the possession counts, and contrary to the suggestions of the trial court, we do not believe Terry's desire for a jury trial on the other charges should take away from his acceptance of responsibility with regard to possession. In light of the foregoing, we conclude that Terry's aggregate thirty-year term is inappropriate and warrants reduction. We exercise our review-and-revise authority and amend each of Terry's sentences for Class A felony dealing to the mandatory minimum of twenty years. We further order fourteen years of each sentence suspended, for an executed term of six years on each Class A felony count followed by two years of probation.

Gross v. State (Ind. Ct. App. 2004) - There is admittedly a fine line between properly exercising the police power to protect dependents and improperly subjecting every mistake a parent may make in raising his or her child to prosecutorial scrutiny. In this particular case, whether Gross' and Hartman's playing the “hostage” game with children requires the involvement of a child welfare office is something we need not decide, but we are confident that this does not support a criminal conviction for neglect of a dependent. We reverse all four convictions on the basis of insufficient evidence.

[Note: Judge Willis’ application includes an impressive table listing jury trials by case caption, date, type (criminal or civil), and appellate review. The Gross entry correctly notes “Jury reversed.” It is unclear from the opinion if the defense made any sort of motion for judgment on the evidence or otherwise to set aside the jury’s verdict.

Finally, excluded from the analysis is Holiday Hospital Franchising, Inc. v. Amco Ins. Co, a case in which the Court of Appeals reversed Judge Willis’ grant of summary judgment, but the Supreme Court granted transfer on June 5, 2012. If Judge Willis were appointed to the Supreme Court, she would presumably not participate in a decision in that case.]

Posted by Marcia Oddi on Friday, July 13, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - How have the judges fared? Judge Marianne Vorhees

As explained in this post headed "How have the 7 trial court judges/applicants fared?" Indiana University-Robert H. McKinney School of Law professor Joel Schumm is reviewing the records on appeal of the seven trial judge applicants for the upcoming Supreme Court vacancy. This analysis of Judge Marianne Vorhees' record is the sixth of those entries.

Judge Marianne Vorhees, Delaware Circuit Court No. 1

Appellate reversals: 17
Appellate cases assessed: 93
Reversal rate: 18.3%

Indiana Supreme Court decisions

In re Estate of Rickert (Ind. 2010) - A holder of a power of attorney is a fiduciary and therefore any transaction in which the holder uses a power of attorney to transfer assets to the holder is presumed invalid. The Non–Probate Transfer Act creates a presumption that joint ownership of a bank account is intended to transfer the account to the survivor(s) at the death of an owner. We hold that the Act's presumption of intent to transfer does not overcome the fiduciary's duty to prove that the account was properly established as a joint account. The holder in this case used the power to establish joint accounts with herself, and did not overcome the presumption that the accounts were not validly established as joint accounts.

Keesling v. Beegle (Ind. 2008) (3-2 opinion with Justices Dickson and Rucker dissenting) - We vacate the trial court's grant of summary judgment in favor of defendants Baugher, Florida Underwriting, and Jones with respect to the plaintiffs' Indiana RICO Act allegations. In all other respects, we summarily affirm the opinion of the Court of Appeals. We remand to the trial court for further proceedings in accordance with this opinion and that of the Court of Appeals.

Indiana Court of Appeals Civil decisions

Hardin v. Hardin (Ind. Ct. App. 2012) - The trial court used an incorrect coverture fraction and thereby clearly erred in dividing Husband's pension. The trial court did not clearly err in awarding the entire survivor's benefit to Wife, but did clearly err in failing to order Wife to pay the monthly cost of the survivor's benefit she will receive. . . . Accordingly, we reverse and remand as to the trial court's division of Husband's pension, including the monthly cost to Wife of the survivor's benefit, and affirm as to all other issues.

Construction Labor Contractors v. Masiongale Electrical-Mechanical, Inc. (Ind. Ct. App. 2011) - While we again acknowledge the deference we afford trial courts in calculating damages, we cannot discern how the court here could have reached its conclusion given the scope of evidence offered at trial. Therefore, we reverse the trial court's decision and remand the matter with instructions to enter a judgment in favor of CLC for $7,181.22 in damages.

Weigand Construction Co. v. Stephens Fabrication Inc. (Ind. Ct. App. 2010) - In sum, we have found that Stephens's claims against Weigand, Weigand's Surety, and BSU survived the bankruptcy proceedings. Given that ruling, Stephens is entitled to the unpaid sums under the base contract: $39,408.09 plus attorney fees, prejudgment interest including the periods of time before and during the bankruptcy proceeding, postjudgment interest, and costs of collection to Stephens. We have also found, however, that Stephens's Claim for additional compensation was untimely under the terms of the relevant contracts and that Weigand is entitled to enforce the contractual provisions in this regard. Therefore, we reverse the trial court's summary judgment order.

Farmers Elevator Co. v. Hamilton (Ind. Ct. App. 2010) - We hold that Hamilton and FECO's HTAs were legitimate forward contracts, and Hamilton's promissory notes were thus supported by valid consideration. Accordingly, the trial court erred by submitting the issue of the enforceability of these contracts to the jury. We have further held that many of Hamilton's claims were barred by the applicable statutes of limitations. Since the jury found for Hamilton and compensated him on his claims against FECO, we reverse and remand.

Municipal Tax Liens, Inc. v. Alexander (Ind. Ct. App. 2008) - Based on Douglas's affidavit and construing the facts and reasonable inferences drawn from the facts in MTL's favor, we conclude that a genuine issue of material fact exists regarding whether MTL is a direct continuation of RAP and whether RAP assigned the legal malpractice claim to MTL. Thus, the trial court erred by granting summary judgment to Alexander.

Cincinnati Ins. Co. v. Young (Ind. Ct. App. 2006) - Based on the foregoing, we conclude that Cincinnati timely filed its notice of appeal, but that the trial court abused its discretion by granting Cincinnati's motion to intervene for purposes of appeal pursuant to Indiana Trial Rule 24(A)(2).

Isanogel Center v. Father Flangan’s Boys’ Home (Ind. Ct. App. 2005) - Isanogel Center, Inc. (“Isanogel Center”) appeals the trial court's denial of its motion for summary judgment and grant of partial summary judgment in favor of Father Flanagan's Boys' Home, Inc., d/b/a Girls and Boys Town (“Boys Town”). At issue in this appeal is the interpretation of Ellen C. Isanogel's 1951 will, which left approximately 140 acres to Isanogel Center's predecessor to use “as a home or recreation grounds for the enjoyment of crippled or physically handicapped children and adults.” Because there is no condition subsequent in Ellen Isanogel's will, Boys Town has no interest in the real estate, and the trial court erred by granting partial summary judgment in its favor. We therefore direct the trial court to enter summary judgment on this issue in favor of Isanogel Center. Also, because there is no evidence that Boys Town acted in malice when filing its notice of reversionary interest in the real estate, we direct the trial court to enter summary judgment in favor of Boys Town on Isanogel Center's slander of title claim.

Munster v. Groce (Ind. Ct. App. 2005) - In sum, Munster sufficiently complied with the Indiana Trial Rules so as to effect service upon BWI and give the trial court personal jurisdiction over it. Likewise, as we have indicated the method of service on BWI was reasonably calculated so as to provide it with notice of the lawsuit and, therefore, comports with the Due Process Clause. We reverse the trial court's grant of the motion to dismiss with respect to BWI.

Citicapital v. Bridgestone/Firestone, Inc.
(Ind. Ct. App. 2005) - The trial court erred in entering summary judgment in favor of Bridgestone because Citicapital Commercial's security interest takes priority over Bridgestone's blacksmith's lien for those vehicles in which Citicapital Commercial held a security interest at the time Bridgestone performed its work and filed its lien. In addition, the trial court erred in granting summary judgment to Bridgestone with regard to the vehicles owned by Citicapital Leasing at the time Bridgestone performed its work and filed its lien. With respect to these vehicles, the blacksmith's lien is not valid due to Bridgestone's failure to fulfill the statutory requirements.

Indiana Court of Appeals Criminal decisions

Spoonemore v. State (Ind. Ct. App. 2011) - [W]e find that the trial court was mistaken as to its authority to reduce his Class D felony to a Class A misdemeanor under Indiana Code section 35–50–2–7 and therefore remand to the trial court on this issue.

Tackett v. State (Ind. Ct. App. 2011) - Patricia A. Tackett (“Tackett”) appeals her convictions for Rape, as a Class B felony, Sexual Misconduct with a Minor, as a Class B felony, and Child Solicitation, as a Class D felony. We reverse. Tackett articulates several issues for review. We find one dispositive: whether territorial jurisdiction in Indiana was proven beyond a reasonable doubt.

Williams v. State (Ind. Ct. App. 2010) - Finally, we hold that the trial court improperly entered two judgments of conviction against Williams for the same offense. Hence, we vacate one of Williams's Class C felony convictions and remand for the trial court to correct its records, without a hearing, to reflect the vacation of one Class C felony conviction in accordance with this opinion.

Tamsett v. State (Ind. Ct. App. 2008) - Although the trial court did not abuse its discretion in ordering Tamsett to serve the remainder of his sentence, the State correctly notes that the trial court's sentence does not technically comply with the probation revocation statute. Ind.Code § 35–38–2–3 provides that the trial court may “order execution of all or part of the sentence that was suspended at the time of initial sentencing.” Tamsett was initially sentenced to six years in the Indiana Department of Correction with four years suspended to probation. Upon revoking Tamsett's probation, the trial court ordered him to serve “the entire six (6) year sentence” minus credit for time served rather than ordering him to serve only his sentence that had been suspended. While it amounts to the same time of imprisonment, the trial court should have sentenced Tamsett to the four years that had been suspended minus any appropriate credit time. Accordingly, we reverse and remand for entry of an appropriate sentencing order.

Williams v. State (Ind. Ct. App. 2005) - The State concedes that all three elements of Indiana Code Section 35-50-2-8(d)(3) exist here with respect to Williams's 1991 conviction for Class D felony possession of cocaine. It is a crime listed under Indiana Code Chapter 35-48-4 (specifically Section 35-48-4-6(a)); it is not listed under Indiana Code Section 35-50-2-2(b)(4); and Williams has only one previous conviction for dealing in cocaine. It is evident that the 1991 conviction could not be used to support an habitual offender enhancement. We therefore direct that Williams's fifteen-year habitual offender sentence enhancement be vacated. (internal citation omitted)

Benavides v. State (Ind. Ct. App. 2004) - The evidence shows that after Benavides threatened Jason, Green held him at knifepoint in the bedroom while Benavides forced Crystal into the living room at gunpoint. Once in the living room, Benavides instructed Crystal to give him all her money. Crystal then gave Benavides $700 in cash from her purse. It is undisputed that Jason did not have possession of the money at the time of the robbery. Furthermore, Jason did not have control over the money, nor was it under his personal protection, because the money was located in Crystal's purse. Because Jason neither possessed the money nor had control of it, the evidence is insufficient to prove that Benavides took money from the presence of Jason. Accordingly, we reverse Benavides' conviction for the robbery of Jason.

[Note: As discussed on her application, Judge Vorhees was one of three special masters appointed in a high profile judicial disciplinary action. Although the special masters recommended the judge be removed from office, the Indiana Supreme Court, in a highly fractured opinion, imposed a sixty-day suspension.]

Posted by Marcia Oddi on Friday, July 13, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In John W. Schoettmer and Karen Schoettmer v. Jolene C. Wright and South Central Community Action Program, Inc., a 16-page, 2-1 opinion, Judge May writes:

It is undisputed that, as a designated community action agency, South Central is a political subdivision pursuant to the ITCA. See IC 34-13-3-22. The ITCA bars tort claims against a political subdivision unless notice of the claim is filed with the governing body of that political subdivision within 180 days after the loss occurs. IC 34-13-3-8(a). * * *

Schoettmers concede they never gave notice or attempted to give notice of their claims to South Central. Instead, they assert their communications with South Central’s liability insurer, Cincinnati Insurance, substantially complied with the ITCA notice provisions. We disagree. * * *

Schoettmers made no attempt to comply with the notice provisions of the ITCA. They never filed a notice of their claims, adequate or inadequate, with South Central, Cincinnati Insurance, or any other entity. They maintain Cincinnati Insurance had actual knowledge of their claims and assert such knowledge should be viewed as notice to South Central because, as South Central’s liability insurer, Cincinnati Insurance “may be properly viewed as an agent of South Central . . . .” The Schoettmers cite no legal authority that supports the proposition that a governmental entity’s liability insurer is its agent for purposes of receiving notice pursuant to the ITCA, and the decisions addressed above support the opposite conclusion. * * *

The trial court did not err when it granted Appellees’ motion for summary judgment. Schoettmers did not timely file their ITCA notice, nor may they find refuge from their failure in the theories of substantial compliance, waiver, and estoppel. Accordingly, we affirm the trial court. Affirmed.

BROWN, J., concurs.
CRONE, J., dissents with separate opinion. [that begins, at p. 14] I agree with the majority’s conclusion that because the Schoettmers did not even attempt to give notice of their claims to South Central, they cannot be said to have substantially complied with the notice requirements of the ITCA. Further, I agree that South Central did not waive its affirmative defense of such noncompliance. However, I believe that South Central should be estopped from asserting the Schoettmers’ noncompliance with the ITCA. The Schoettmers were unaware of South Central’s governmental status, Cincinnati Insurance made representations upon which the Schoettmers justifiably relied, the purpose of the notice requirement of the ITCA was clearly accomplished, and there was a lack of prejudice to South Central. Therefore, I must respectfully dissent.

In Brotherhood Mutual Insurance Company as Subrogee of Plymouth Wesleyan Church v. Michiana Contracting, Inc., McGrath Refrigeration, Inc., John D. McGrath, Joseph A. Dzierla and Assoc., Inc., et al., a 10-page opinion, Judge May writes:
Brotherhood Mutual Insurance Company), as subrogee of Plymouth Wesleyan Church, appeals summary judgment for Michiana Contracting, Inc.; McGrath Refrigeration, Inc. and John D. McGrath; Joseph A. Dzierla and Associates, Inc.; and Shambaugh & Son, L.P. (collectively, “Appellees”). Brotherhood presents three issues for our review, one of which is dispositive: whether the wooden gym floor, which was the subject of the Church’s insurance claim with Brotherhood, was within the scope of work pursuant to the contract and therefore subject to a waiver of subrogation. * * *

The installation of the wooden gym floor was not accepted as part of the work and thus not added to the total owed to Michiana, and the Church in fact installed the wooden gym floor at issue. The wooden gym floor therefore was not within the “Scope of Work” forthe project and therefore was not subject to the waiver of subrogation. Therefore, we reverse the summary judgment and remand for proceedings consistent with this opinion. Reversed and remanded.

In Corey Cole v. State of Indiana , a 10-page opinion, Judge May concludes:
The trial court did not commit reversible error when it sustained the State’s objection to Cole’s attempt to refresh J.S.’s memory with the notes from the nurse; J.S.’s testimony would have been cumulative of the nurse’s testimony. In addition, no fundamental error occurred when the court admitted hearsay statements: Cole invited some of the error, the uninvited statements were cumulative of other testimony, and they did not likely contribute to the decision regarding Cole’s guilt. Accordingly, we affirm.
NFP civil opinions today (3):

Term. of the Parent-Child Rel. of B.M. and A.M. (Minor Children) and J.R. (Mother) v. The Indiana Dept. of Child Services (NFP)

Swammi, Inc., f/k/a Swami, Inc. v. Shambaugh, Kast, Beck, Williams, LLP and John S. Bloom (NFP)

Nancy J. Ferguson and Nyla R. Hamilton v. Natalie A. Watkins (NFP)

NFP criminal opinions today (5):

Robert Hatcher v. State of Indiana (NFP)

Michael J. Gosnell v. State of Indiana (NFP)

Alpha Holder, Jr. v. State of Indiana (NFP)

Donald Humphrey v. State of Indiana (NFP)

Devonte Rogers v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, July 13, 2012
Posted to Ind. App.Ct. Decisions

Vacancy #2 on Supreme Court 2012 - How have the judges fared? Judge Elizabeth Tavitas

As explained in this post headed "How have the 7 trial court judges/applicants fared?" Indiana University-Robert H. McKinney School of Law professor Joel Schumm is reviewing the records on appeal of the seven trial judge applicants for the upcoming Supreme Court vacancy. This analysis of Judge Elizabeth Tavitas's record is the fifth of those entries.

Elizabeth Tavitas, Lake Superior Court, Room Three of the Civil Division

Appellate reversals: 6
Appellate cases assessed: 18
Reversal rate: 33.3%

Indiana Supreme Court decisions

In re Paternity of N.L.P. (Ind. 2010) - Because there was an absence of evidence that the parties' agreements were void as against public policy, and the trial court made no findings as such, it was bound to enforce the terms and conditions of the agreements. We therefore reverse the judgment of the trial court and remand this cause for further proceedings.

Indiana Court of Appeals decisions

Hovey v. Hovey (Ind. Ct. App. 2009) - Mother raises three issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court properly amended Father's child support arrearage when no pleading was filed, no notice to Mother was given, and no evidentiary hearing was held.

Khaja v. Khan (Ind. Ct. App. 2009) - In sum, we affirm (1) the trial court's findings as to Father's child support arrearage and contempt, (2) the trial court's finding as to educational expenses, and (3) the award of attorney's fees to Mother. We reverse the denial of Father's petition to modify and the finding that Father owes Mother $2,448.00 for M.K.'s Lasik eye surgery and remand for application of Indiana law to the modification of child support and for the judgment to be reduced to $320,007.52. If findings regarding modification of child support require any additional adjustment in the amount Father owes Mother, the judgment will be accordingly adjusted.

Andy’s Truck & Equipment Co. v. State (Ind. Ct. App. 2008) - Subsequently, in equitable proceedings, the State contended that the underlying tax sale (not the quiet title judgment) was void because of the State's ownership and non-liability for property taxes. However, despite taking a position wholly contrary to its position in former litigation, in seeking to avoid its disclaimer, the State presented absolutely no testimony or other evidence to show ownership of the subject property. The State was essentially permitted to re-litigate, without testimony or evidentiary exhibits, the merits of a former judgment. Nevertheless, “courts cannot act upon the assumption that a state of facts exists which has not been proved, and which there has been no effort to prove.” Muncie Bldg. Trades Council v. Umbarger, 215 Ind. 13, 16, 17 N.E.2d 828, 829 (1938). The trial court erroneously granted the State Trial Rule 60(B) relief in the face of the State's failure to meet its burden of proof.

White v. White (Ind. Ct. App. 2007) - Appellant–Respondent Mark White (“Mark”) appeals the denial of his Motion to Correct Error, which challenged the denial of his motion to set aside an income withholding order for child support receivable by Appellee–Petitioner Carol White (“Carol”) and the State of Indiana. We reverse and remand.

Lauridsen v. Lauridsen (Ind. Ct. App. 2007) - We reverse as clearly erroneous the trial court's finding that Father did not pay the health insurance premiums for his three children. On that issue, we remand to the trial court with instructions that it consider Father's health insurance premium payments in its determination of Father's child support obligations.

Posted by Marcia Oddi on Friday, July 13, 2012
Posted to Vacancy #2 on Supreme Court 2012

Courts - "Identify writer on blog: Idaho newspaper ordered to provide information"

The Spokane Spokesman-Review had a story yesterday reminiscent of the Indiana situation described in this Feb. 22, 2012 entry headed "Appeals court rules online commenters not protected news sources."

The story by Thomas Clouse begins:

The Spokesman-Review must provide information that could identify an anonymous reader who typed a disparaging online comment about the chairwoman of the Kootenai County Republican Party in February, an Idaho judge ruled Tuesday. * * *

In a hearing last month, Jacobson’s attorney argued that his client’s reputation was hurt by the posts and sought to have the judge order the newspaper to provide identifying information about the people who made the comments.

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

Vacancy #1 & 2 on Supreme Court 2012 - FWJG asks Jane Seigel why she did not apply this time

The Fort Wayne Journal Gazette's "Furthermore ..." column today includes this item:

Sixteen of 22 candidates for the Indiana Supreme Court are female, offering Gov. Mitch Daniels ample opportunity to do the right thing and appoint a woman to the all-male court when Justice Frank Sullivan steps down this year. But one candidate who would appear to have an advantage is missing.

Jane Seigel, executive director of the Indiana Judicial Center, was one of three finalists for the court in March, when Daniels chose his former general counsel, Mark Massa. Appeals Court Judge Cale Bradford, the third finalist, is a candidate for the latest vacancy.

But Seigel told The Journal Gazette in an email that she did not apply this time around for personal reasons – a conflict with scheduled family events.

Asked if she believed a female perspective on the state’s highest court would be valuable, Seigel responded “Absolutely.”

She gave the selection process high marks: “I found the (Judicial Nominating Commission) members to be extremely gracious, interested in what can be done in Indiana to improve the administration of justice and the judicial branch as a whole, and I certainly felt affirmed by them,” Seigel wrote. “I believe their questions were challenging but fair and insightful, and designed to draw out responses that allowed them to make the recommendation to the governor. I believe the governor should make the final decision, and also believe that he was presented with three very qualified candidates that came to him through the selection process.”

Posted by Marcia Oddi on Friday, July 13, 2012
Posted to Vacancy #2 on Supreme Court 2012 | Vacancy on Supreme Court 2012

Ind. Courts - The Bisard story continues

Updating this long list of earlier ILB entries, here are two stories on yesterday's court hearing:

From the Indianapolis Star, Carrie Ritchie's report begins:

A Marion County judge said Thursday that he intends to let prosecutors go ahead with plans to test vials of blood that show IMPD officer David Bisard was drunk in 2010 when he crashed his car into a group of motorcyclists, killing one of them.

But first, prosecutors have to provide a report that shows who handled the blood.

It’s a minor victory for prosecutors, who want to restest the sample to confirm the results of another test that showed Bisard’s blood-alcohol content was 0.19 after the crash — more than twice the level at which Indiana drivers are considered drunk. Prosecutors also want to do a DNA test to confirm it was, in fact, Bisard’s blood.

The story by Charles Wilson of the AP begins:
A judge gave prosecutors tentative permission Thursday to test blood from an Indianapolis officer accused of drunken driving in a fatal crash even though police had mishandled the sample.

Judge Grant Hawkins essentially upheld an earlier ruling in March, which lawyers for David Bisard had asked him to reconsider. Defense attorneys want to keep the blood out of evidence.

However, Hawkins delayed his ruling from taking effect until July 30, saying by then prosecutors must document to his satisfaction all those who handled the blood sample.

Posted by Marcia Oddi on Friday, July 13, 2012
Posted to Indiana Courts

Thursday, July 12, 2012

Vacancy #2 on Supreme Court 2012 - Here they are, the 22 applications with photos

Here they are, the 22 applications with photos! Access them here.

Posted by Marcia Oddi on Thursday, July 12, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - How have the judges fared? Judge Loretta Rush

As explained in this post headed "How have the 7 trial court judges/applicants fared?" Indiana University-Robert H. McKinney School of Law professor Joel Schumm is reviewing the records on appeal of the seven trial judge applicants for the upcoming Supreme Court vacancy. This analysis of Judge Loretta Rush's record is the fourth of those entries.

Judge Loretta Rush, Tippecanoe Superior Court 3

Appellate reversals: 4
Appellate cases assessed: 55
Reversal rate: 7.27%

Indiana Court of Appeals decisions

D.R. v. State (Ind. Ct. App. 2010) - The State concedes that both charges relied upon the same evidence, specifically D.R.'s and/or his companions' use of a handgun as a show of force as a substantial step toward stopping Artega to take his vehicle. To the extent the attempted robbery names Artega's personal belongings in addition to his vehicle, and therefore arguably rests upon different evidence, the Single Larceny Rule prevents a person from being convicted of two crimes when several articles of property, belonging to the same person, are taken at the same time and place. The State does not dispute that only a single larceny is at issue here. Accordingly, we vacate D.R.'s true finding for attempted carjacking and remand to the trial court with instructions to amend D.R.'s dispositional order to reflect a true finding for attempted robbery only. (citation omitted)
[Note: According to a footnote in the opinion: “This cause originated in Tippecanoe County, where the Honorable Loretta H. Rush presided over the fact-finding hearing. It was subsequently transferred to Marion County for disposition.” A double jeopardy violation technically occurs a fact-finding hearing, where it could be remedied. More likely, however, such errors are likely to be raised and possibly remedied at a disposition hearing — the equivalent of sentencing for adults.]

In re Termination of Parent-Child Relationship of K.L. (Ind. Ct. App. 2010) - It is true that Father was appropriately advised of his constitutional and legal rights and that the trial court carefully questioned Father about his consent to voluntarily terminate his parental rights. It remains, however, that all advisements and questions were clouded by the misrepresentation contained in the home study report and the TCDCS's subsequent actions that served as the basis for K.L.'s placement with Ann and Glen and the TCDCS approval of the permanency plan calling for K.L.'s adoption by Ann and Glen. Father was not the only party moving forward in K.L.'s best interest in reliance upon the misrepresentation made by an employee of the TCDCS. It seems safe to say that had FCM Huck adequately searched the DCS records, K.L. never would have been placed in Ann and Glen's home and the possibility of adoption of K.L. by Ann and Glen would not have been the deciding factor in Father's decision to terminate his parental rights. Under these circumstances, we find that Father's consent to voluntarily terminate his parental rights was vitiated by the misrepresentations made by the TCDCS through FCM Huck. Therefore, the petition to set aside the judgment terminating his parental rights should have been granted.

R.L.H. v. State (Ind. Ct. App. 2000) - We agree with R.H. that this evidence, standing alone, simply is not enough to support a reasonable inference that R .H. committed the offense alleged in Count I beyond a reasonable doubt. While this circumstantial evidence certainly shows that R.H. had visited the location in question during the relevant time period and further throws a degree of suspicion upon R.H., we must emphasize that a judgment based on suspicion and opportunity alone may not support a conviction.

Washburn v. TCOFC (Ind. Ct. App. 2000) - We reverse the juvenile court's decision regarding purported proceedings supplemental and remand for further proceedings to determine what amount, if any, Parents owe OFC, consistent with applicable reimbursement statutes and the Indiana Child Support Guidelines.

Posted by Marcia Oddi on Thursday, July 12, 2012
Posted to Vacancy #2 on Supreme Court 2012

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

Updating this ILB entry from June 24th, AG Zoeller issued a press release yesterday headed "Deadline to accept $13.2 million settlement now August 1." A July 15th deadline had originally been set by the AG.

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

Ind. Courts - "A day in CHINS court" with Judge Bonaventura

Check out Marisa Kwiatkowski's long story dated July 8, 2012 in the NWI Times. Some quotes:

A recent Times investigation found parents willing to claim they were guilty of neglect during CHINS hearings to secure needed services for their children with mental illnesses or developmental disabilities.

But families in that situation don't typically appear at CHINS hearings. The majority of families in CHINS court proceedings face accusations of serious abuse or neglect.

Lake Juvenile Court Judge Mary Beth Bonaventura heard 10 such cases during a recent day in court.

The families involved live in northern and southern portions of the county. Some are poor, others middle-class. They come from all racial and ethnic backgrounds.

But in all cases, the Indiana Department of Child Services determined those region families were in desperate need of intervention.

Here are their stories.

A sidebar notes: "The newspaper withheld names and identifying information on the families to protect the children's identities."

Posted by Marcia Oddi on Thursday, July 12, 2012
Posted to Indiana Courts

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

In Craig et al. v. FedEx (ND Ind., Miller), a 17-page per curiam opinion with multistate diversity issues, the Court writes:

FedEx Ground (“FedEx”) provides small package pick-up and delivery services through a network of pick-up and delivery drivers. The plaintiffs are current and former drivers for FedEx who allege that they were employees rather than independent contractors under the laws of the states in which they worked and under federal law. The Judicial Panel on Multidistrict Litigation consolidated these actions and transferred them to the District Court for the Northern District of Indiana. That court used the Carlene M. Craig, et al. case, which was based on the Employee Retirement Income Security Act (“ERISA”) and Kansas law, as its “lead” case. The court certified a nationwide class seeking relief under ERISA and certified statewide classes under Federal Rule of Civil Procedure Rule 23(b)(3).1 The Kansas class has 479 members. They allege that they were improperly classified as independent contractors rather than employees under the Kansas Wage Payment Act (“KWPA” or “Act”), Kan. Stat. Ann. §§ 44-313 et seq., and that as employees, they are entitled to repayment of all costs and expenses they paid during their time as FedEx employees. They also seek payment of overtime wages.

Cross summary judgment motions presented the question of whether the FedEx drivers are employees or independent contractors under the KWPA. The evidence presented through the competing motions essentially comprised a stipulated record revolving around a form Operating Agreement FedEx entered with each of the class members and certain FedEx work practices. * * *

Twenty-one cases are on appeal. They present substantially the same issue: whether the district court erred by deciding as a matter of law that the certified classes of plaintiffs were independent contractors and thus could not prevail on their claims. Each case, however, arises under a different state’s substantive law. The parties proposed that we begin with the Craig appeal and stay the remaining appeals, proceeding as the district court did. We suspended briefing in the other appeals pending further order and now address the Craig appeal. * * *

Although we are presented with a particular contract and specific facts and circumstances, this appeal requires an interpretation of the meaning of “employee” under the KWPA in light of the Kansas public policy of protecting workers’ rights to their wages and benefits. Under these circumstances, we believe that the Kansas Supreme Court is in a better position than we to say what Kansas law is and should have the first opportunity to address the issues before us. Certification would further the interests of cooperative federalism.

We respectfully request the Kansas Supreme Court, in an exercise of its sound discretion, to answer the following certified questions:

1. Given the undisputed facts presented to the district court in this case, are the plaintiff drivers employees of FedEx as a matter of law under the KWPA?

2. Drivers can acquire more than one service area from FedEx. See 734 F. Supp. 2d at 574. Is the answer to the preceding question different for plaintiff drivers who have more than one service area?

We invite reformulation of the questions presented, if necessary, and nothing in this certification should be read to limit the scope of the inquiry to be undertaken by the Kansas Supreme Court. Further proceedings in this court are stayed while this matter is under consideration by that court.

The clerk of this court shall transmit the briefs and appendices in this case as well as a copy of this opinion under official seal to the Kansas Supreme Court, and at that court’s request, will transmit the full record.

QUESTIONS CERTIFIED.

Posted by Marcia Oddi on Thursday, July 12, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court decides one today

In State of Indiana v. Steven Ray Hollin, a 12-page, 5-0 opinion, Justice Rucker writes:

Steven Ray Hollin filed a petition for post-conviction relief alleging prosecutorial misconduct and ineffective assistance of trial counsel. The post-conviction court granted relief and the State of Indiana appealed. The Court of Appeals reversed. We granted transfer. * * *

Under the first prong of the Brady analysis, the post-conviction court found that trial counsel was not aware of Vogel’s pending criminal matters or Vogel’s pretrial statement and change of story. See Appellant’s App. at 121 (citing Tr. at 74 (“Nobody can control what [Vogel is going to] say today, but if he tries to say today that this was some kind of a plan, this will be the first time he’s come up with that story.”)). Under the second prong, we agree with the post-conviction court that the undisclosed evidence “was favorable to Hollin because it was impeaching – it showed a motivating factor for Vogel to cooperate with the State that would have affected the jury’s assessment of his credibility.” Appellant’s App. at 132. Further, Vogel’s testimony provided the only evidence that he and Hollin agreed to commit the charged offense. Appellant’s App. at 139. Of particular note, Vogel did not implicate Hollin in an agreement to burglarize homes until after Vogel was charged with a new felony and proceedings to revoke his probation had begun – approximately eight months after the crime took place. Under the third prong, given the importance of credibility in this case as discussed above, we conclude there was sufficient evidence for the post-conviction court’s conclusion that there was a reasonable probability that had this information been disclosed to the defense, the result of the trial would have been different.

Applying our standard of review to the State’s appeal in this case, we conclude that the post-conviction court’s judgment is not clearly erroneous and the State has not shown the existence of clear error – that which leaves us with a definite and firm conviction that a mistake has been made. We therefore affirm the post-conviction court’s grant of Hollin’s petition for post-conviction relief.

Conclusion. The judgment of the post-conviction court is affirmed. We remand this cause for a new trial.

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

Here is the 21-page August 24, 2011 NFP COA opinion.

Posted by Marcia Oddi on Thursday, July 12, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Andrew McWhorter v. State of Indiana , a 12-page opinion, Judge Bailey writes:

Andrew McWhorter appeals the denial of his petition for post-conviction relief, wherein he challenged his conviction for Voluntary Manslaughter. He presents the sole issue of whether he was denied the effective assistance of trial counsel. We reverse and remand for retrial on Reckless Homicide. * * *

McWhorter claims that his trial attorney was ineffective for failing to object to the Voluntary Manslaughter instruction given to the jury. We agree, as defense counsel acquiesced to the giving of an instruction that (1) was not warranted by the evidence and (2) invited a compromise or unreliable verdict. * * *

We then must consider whether McWhorter was prejudiced such that the result of the trial was unreliable. The State asserts that a jury can acquit a defendant of Murder while convicting of Voluntary Manslaughter and has historically done so in many cases. We do not disagree. However, that result should ensue only upon proper instruction. * * *

We find that the instruction to proceed to consider Voluntary Manslaughter only upon a failure of proof of Murder invites inconsistency and renders the result of the trial unreliable. McWhorter was prejudiced in that he ultimately stood convicted of Voluntary Manslaughter, an offense not initially charged by the State and one upon which McWhorter did not proffer evidence or request instruction. The post-conviction court erred by not granting McWhorter relief upon his ineffectiveness of counsel claim. * * *

McWhorter further argues that he may not be retried on the Voluntary Manslaughter charge because retrial would violate the double jeopardy principles of the United States Constitution. * * *

McWhorter may not be retried on the charges of which he was acquitted. However, as he concedes, he may be retried on Reckless Homicide, the offense upon which the jury returned no verdict, and the elements of which differ from Murder and Voluntary Manslaughter.

Conclusion. McWhorter has established that he was denied the effective assistance of trial counsel. Accordingly, we reverse the denial of post-conviction relief. McWhorter may be retried on the charge of Reckless Homicide.

NFP civil opinions today (3):

In the Matter of Child Alleged to be a Child in Need of Services: D.L. (Minor Child), and K.S. (Mother) v. The Indiana Dept. of Child Services (NFP)

Term. of Parent-Child Rel. of T.A.B.; T.B. (Father) v. The Indiana Dept. of Child Services, and Child Advocates, Inc. (NFP)

Norrene Sullivan v. Kindred Nursing Center (NFP)

NFP criminal opinions today (7):

Robert L. Jackson v. State of Indiana (NFP)

Anthony K. McCullough v. State of Indiana (NFP)

Jocelyn Allen v. State of Indiana (NFP)

Jeffrey A. Booth v. State of Indiana (NFP)

Alexandro Prado v. State of Indiana (NFP)

Anthony Ray Ewing v. State of Indiana (NFP)

Kevin Taylor v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 12, 2012
Posted to Ind. App.Ct. Decisions

Vacancy #2 on Supreme Court 2012 - How have the judges fared? Judge Steven Nation

As explained in this post headed "How have the 7 trial court judges/applicants fared?" Indiana University-Robert H. McKinney School of Law professor Joel Schumm is reviewing the records on appeal of the seven trial judge applicants for the upcoming Supreme Court vacancy. This analysis of Judge Steven Nation's record is the third of those entries.

Judge Steven Nation, Hamilton Superior Court 1

As summarized in this entry from July of 2010, 32 of the 91 cases in which Judge Nation was appealed were reversed. In the nearly two years since then, 24 additional cases were appealed, four of which were reversed.

Appellate reversals: 36
Appellate cases assessed: 115
Reversal rate: 31.3%

Indiana Court of Appeals Civil decisions

Spurr v. Spurr (Ind. Ct. App. 2012) - Marsha Spurr (“Mother”) appeals from denial of her motion to correct error, which challenged the dissolution court's order determining thather daughter, S.S., was emancipated for purposes of determining child support owed by Robert Spurr (“Father”). We reverse and remand.

Gray v. D & G, Inc. (Ind. Ct. App. 2010) - For all of these reasons, we conclude that our General Assembly has spoken clearly in this area and the trial court erred in concluding that Gray could not recover from Sandstone because of his voluntary intoxication. The parties do not challenge the trial court's determination that genuine issues of material fact exist with regard to whether Sandstone had actual knowledge that Gray was visibly intoxicated and whether Gray's alleged injuries were proximately caused by Gray's intoxication. We therefore reverse the trial court's entry of summary judgment in favor of Sandstone and remand the case for proceedings consistent with this opinion.

Cincinnati Ins. Co. v. Adkins (Ind. Ct. App. 2010)- As Adkins' settlement with Strack “after loss” impaired Cincinnati's subrogation rights, Adkins breached the contract with Cincinnati and discharged Cincinnati from its obligation to provide coverage.FN6 Cincinnati's motion for summary judgment should accordingly have been granted. We reverse and remand for entry of summary judgment for Cincinnati.

Indiana Court of Appeals Criminal decisions

Lampkins v. State (Ind. Ct. App. 2010) - We reverse Lampkins's conviction for possession of a weapon by a serious violent felon as a Class B felony because he received ineffective assistance of trial counsel, and we remand for a new trial.

Posted by Marcia Oddi on Thursday, July 12, 2012
Posted to Vacancy #2 on Supreme Court 2012

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

On June 21st, the ILB posted this entry, which reads in part:

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.)

The entry went on to say that only Judge Mathias and Justice Rucker had not yet filed for retention.

As of yesterday, they now both have, Mathis on June 29th and Rucker on July 11th.

Posted by Marcia Oddi on Thursday, July 12, 2012
Posted to Indiana Courts

Wednesday, July 11, 2012

Ind. Courts - More on: Long Odds for a Grant of Transfer in Not-For-Publication Civil Cases

Re this July 9th analysis by Prof. Schumm, a reader writes:

I just wanted to thank you for posting Professor Schumm's analysis of transfer percentages in FP/NFP cases. This is exactly the sort of information practitioners need to advise their clients after an adverse result in the Court of Appeals — especially in civil cases where the client usually has to bear the costs of litigation. It's also a great example of the sort of thing that one gets almost exclusively from the ILB.
Prof. Schumm adds:
Aware of the long odds in a transfer grant from a NFP opinion, some appellate lawyers who have lost their cases in the Court of Appeals decide to file a motion to publish under Appellate Rule 65(B). Here is an example of a motion that was granted.

If the motion to publish* is granted, the resulting FP status of the case may arguably lead the Indiana Supreme Court to take a harder look at the case--but at a risk. If transfer is then denied, counsel has not simply lost their case in the Court of Appeals but has made the case precedential, which could cause those practicing in that area of the law problems in the future when confronting the same or similar issue(s).
_______
*A motion to publish must be filed within 30 days of the Court of Appeals' decision, although some judges on the Court of Appeals have expressed a preference, if not expectation, that it be filed in about ten days to allow for a ruling before the 30-day deadline to seek transfer. In any event, the Court of Appeals will rule on publication before the Indiana Supreme Court rules on transfer.

Posted by Marcia Oddi on Wednesday, July 11, 2012
Posted to Indiana Courts

Ind. Law - "Indiana legislators prepare to make more new state laws in 2013 General Assembly"

Here is a good story that goes into detail about this summer's study committes, reported by Maureen Hayden of CNHI.

Posted by Marcia Oddi on Wednesday, July 11, 2012
Posted to Indiana Law

Environment - "Wis. Supreme Court to rule in factory farm case"

This story by Dinesh Ramde of the AP appears on the Gary Post Tribune website. It begins:

MILWAUKEE — The Wisconsin Supreme Court is scheduled to rule Wednesday in a case in which a small town with three times as many cows as people is seeking greater authority to protect its water supply.

Communities throughout the rural Midwest have been keeping an eye on the lawsuit as they struggle to deal with the expansion of so-called factory farms. States throughout the farm belt have seen big farms get bigger as the agriculture industry continues to consolidate.

The Wisconsin lawsuit was filed by Magnolia, a town of 1,000 residents seeking to force a big livestock farm to meet tougher water quality standards than the state requires. Similar cases have been filed in six other Midwestern states, but this is believed to be the first to reach a state supreme court. * * *

Similar cases have been filed in Illinois, Indiana, Minnesota, Nebraska, Ohio and Oklahoma. Two juries in Missouri have handed out multimillion-dollar awards to homeowners who complained of intolerable odors from so-called factory farms.

See also this Dec. 23, 2009 ILB entry about a similar suit in Indiana.

Posted by Marcia Oddi on Wednesday, July 11, 2012
Posted to Environment

Vacancy #2 on Supreme Court 2012 - How have the judges fared? Judge Marla Clark

As explained in this post headed "How have the 7 trial court judges/applicants fared?" Indiana University-Robert H. McKinney School of Law professor Joel Schumm is reviewing the records on appeal of the seven trial judge applicants for the upcoming Supreme Court vacancy. This analysis of Judge Marla Clark's record is the second of those entries.

Judge Marla Clark, Johnson Circuit Court, Juvenile Division

Appellate reversals: 1
Appellate cases assessed: 2
Reversal rate: 50%

Indiana Court of Appeals decisions

In re Paternity of E.C. (Ind. Ct. App. 2008) - Father appeals pro se and argues that his incarceration has resulted in a substantial change in his income, and therefore, he is entitled to a reduction of his child support obligation. We reverse and remand for proceedings consistent with this opinion.

[Note] It is surprising that so few Johnson County Juvenile Court cases have been appealed. The case cited was litigated by a pro se appellant. As was another, which was affirmed. Yet another pro se case was dismissed because of briefing inadequacies. In contrast, during the same time period several juvenile cases were appealed by appointed counsel in Tippecanoe County, which will be considered in the post on Judge Rush tomorrow.

Posted by Marcia Oddi on Wednesday, July 11, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Kathleen G. Babchuk v. Kirk J. Daniels (NFP)

In the Matter of the Involuntary Commitment of R.T. (NFP)

In the Matter of the Adoption of N.W.R.; M.R. v. R.B. and R.B., and Indiana Dept. of Child Services

NFP criminal opinions today (3):

Marcous Ford v. State of Indiana (NFP)

Roger A. Boggs v. State of Indiana (NFP)

Marlon L. Pendleton v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 11, 2012
Posted to Ind. App.Ct. Decisions

Vacancy #2 on Supreme Court 2012 - How have the judges fared? Judge Frances Gull

As explained in this post headed "How have the 7 trial court judges/applicants fared?" Indiana University-Robert H. McKinney School of Law professor Joel Schumm is reviewing the records on appeal of the seven trial judge applicants for the upcoming Supreme Court vacancy. This analysis of Judge Frances Gull's record is the first of those entries.

Judge Frances Gull, Allen Superior Court

Appellate reversals: 19
Appellate cases assessed: 201
Reversal rate: 9.45%

Indiana Supreme Court decisions

Farris v. State (Ind. 2009) - The post-conviction court's denial of Farris's petition for relief is reversed with regards to his claim of ineffective assistance of counsel for failure to move for dismissal of the consecutive habitual offender enhancement. We remand the issue of Farris's sentence to the post-conviction court with instructions to issue an amended sentencing order vacating Farris's second habitual offender enhancement in accordance with this opinion, without a hearing. (We calculate that this will reduce the length of Farris's sentence from 200 to 170 years.)

Corcoran v. State (Ind. 2000) - The judgment of the trial court is affirmed except as to the death sentence, which is vacated, and this cause is remanded to the trial court to reconsider its sentencing determination and to enter a new sentencing statement and judgment, in accordance with this opinion.

Pope v. State (Ind. 2000) - In this case it is not altogether clear whether the trial court relied on non-capital aggravators when imposing sentences for life without parole. This matter needs clarification. Accordingly, we must remand for a new sentencing order.

Jenkins v. State (Ind. 2000) - Because the statutory elements necessary to establish that the defendant robbed Darrick C. Lawson were necessary to establish felony murder by robbery, the defendant's conviction and sentence for both robbery and felony murder by robbery in this case violate both the federal and the state Double Jeopardy Clauses.

Indiana Court of Appeals decisions (published)

Laster v. State (Ind. Ct. App. 2011) - While we agree with the trial court that the existence of separate victims justifies consecutive sentences, we conclude that the nature of the offenses and the character of the offender do not warrant a fully executed sentence on each count. Therefore, we remand for the trial court to revise each sentence to eight years executed and two years suspended, for a total of thirty-two years executed and eight years suspended.

In re Ohio Conviction Against Gambler (Ind. Ct. App. 2011) - Gambler's letter was insufficient to constitute a petition to be removed from the Indiana sex offender registry. DOC presents a prima facie case that the trial court erred in concluding otherwise, failing to provide notice to the appropriate government actors, failing to hold a hearing, and ultimately erroneously granting Gambler's request to be removed from the sex offender registry.

Watson v. State (Ind. Ct. App. 2005) - Because Watson did not violate any conditions of his probation after he entered into a probation agreement approved by the trial court, his probation was improperly revoked. We therefore reverse the trial court.

Hart v. State (Ind. Ct. App. 2005) - Finding that the enhancement to the Class C felony child exploitation charges are improper, we agree that the sentences on those charges should be reduced to the presumptive four years on each charge.

Harris v. State (Ind. Ct. App. 2005) - Further, we conclude that the trial court erred by applying an improper aggravating circumstance in sentencing Harris. Finally, based upon Smylie, we conclude that Blakely does apply to Indiana's sentencing scheme and that the enhancement of Harris' sentence cannot be imposed without factual findings by a jury.

Payton v. State (Ind. Ct. App. 2004) - For the foregoing reasons, we reverse Payton's convictions for sexual battery and remand to the trial court with instructions to vacate Payton's conviction of the lesser-included offenses of sexual battery and enter judgments of conviction and sentence only upon the greater offenses of child molesting and sexual misconduct with a minor. We also revise Payton's aggregate sentence to twenty-five and one-half years.

Hawkins v. State - At the time of Hawkins' crimes, the statute did not include attempted murder as a "crime of violence." Nor did the statute include robbery or attempted robbery as a Class C felony, or criminal confinement as a Class B felony. As a result, the trial court erred in imposing consecutive sentences totaling 122 years. We remand for resentencing in compliance with the statute in effect when Hawkins committed the crimes.

Anderson v. State (Ind. Ct. App. 2003) - Aside from the testimony of M.H. and that of others who simply recounted or repeated the incident as M.H. had reported to them, we cannot say that there was substantial evidence of probative value establishing the elements of the charged offense. Thus, we can only conclude that the instruction error here affected Anderson's substantial rights to the extent that reversal is warranted. Thus, we grant the petition for rehearing, set aside Anderson's conviction and remand this cause to the trial court for a new trial.

Baker v. State (Ind. Ct. App. 2002)- Thus we conclude that the public defender fee, in this case, was not intended to be a part of the "court costs" covered by the plea agreement. For these reasons, we direct the trial court to modify its judgment to delete the order to pay the $ 250 public defender fee.

Indiana Court of Appeals decisions (NFP)

Curry v. State (Ind. Ct. App. 2012) - Thus, while the nature of Curry's offense taken together with his character as reflected in Crystal's victim impact statement demands executed time, we believe that absence of a criminal history makes the five-year sentence inappropriate under Appellate Rule 7(B). We therefore order the imposition of the statutory advisory sentence of four years imprisonment.
[Note: Although this opinion is one of the longest ones reviewed at 34 pages, it is designated not-for-publication.]

Ford v. State (Ind. Ct. App. 2009) - We conclude that the imposition of consecutive habitual offender enhancements is improper, and therefore, appellate counsel's failure to raise the issue constitutes ineffective assistance of counsel. We reverse and remand to the post-conviction court with instructions to revise Ford's habitual offender enhancement.

Rhodes v. State (Ind. Ct. App. 2008) - Because judgment of conviction was entered on both the robbery and the felony murder charges, the trial court improperly merged the robbery convictions with the felony murder convictions for sentencing purposes. Therefore, we remand with instructions to vacate Rhodes's robbery convictions.

Duvall v. State (Ind. Ct. App. 2008) - Limited, as we are, to only reviewing the post-conviction court's findings and conclusions, we therefore remand this case with instructions for the post-conviction court to enter findings and conclusions to support the disposition of Duvall's petition for education credit time. In doing so, the trial court shall determine whether this case is appropriate for summary ruling or whether a hearing should be held.

Sowder v. State (Ind. Ct. App. 2007) - Although we conclude that the trial court's admission of the search warrant was harmless error and that the trial court properly sentenced Sowder, we reverse Sowder's battery conviction and remand with instructions to vacate the conviction because it placed Sowder in double jeopardy.

Burnett v. State (Ind. Ct. App. 2007) - Burnett's convictions for battery as a Class C felony and battery as a Class A misdemeanor violate our state common law's prohibition against double jeopardy. We therefore vacate Burnett's conviction for Class A misdemeanor battery.

Posted by Marcia Oddi on Wednesday, July 11, 2012
Posted to Vacancy #2 on Supreme Court 2012

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

In Overstreet v. Sup. Ind. State Prison (ND Ind., Simon), a 29-page 2-1 opinion (with a dissent beginning on p. 11), Chief Judge Easterbrook writes:

A jury concluded that Michael Overstreet kidnapped, raped, and murdered Kelly Eckart. The jury recommended that he be executed for these offenses, and the state judge imposed a death sentence. The Supreme Court of Indiana affirmed Overstreet’s convictions and sentence, 783 N.E.2d 1140 (2003), and affirmed an order denying his petition for post-conviction relief, 877 N.E.2d 144 (2007). The only issues in this collateral attack under 28 U.S.C. §2254 concern the penalty. The district court denied Overstreet’s petition. 2011 U.S. Dist. LEXIS 22175 (N.D. Ind. Mar. 4, 2011). AFFIRMED.
Circuit Judge Wood's dissent concludes:
The district court, and now my colleagues, have concluded that this record does not show that the decision of the Supreme Court of Indiana was objectively unreasonable, as it must be in order to warrant the grant of Overstreet’s petition under § 2254. With respect, I cannot agree with them. The only three explanations that the state supreme court gave were unreasonable, because they were based on inaccurate factual assumptions. At the heart of the problem lies counsel’s deficient performance in failing to put before the sentencing jury the available evidence showing the seriousness of Overstreet’s mental illness. A capital jury cannot make its decision with only half of the story before it, or worse, with objectively inaccurate information. Indeed, the Supreme Court has stressed that the defendant must be able to put all of his mitigating evidence before such a jury. See Wiggins, 539 U.S. at 537; Williams, 529 U.S. at 396. Overstreet was prejudiced when that opportunity slipped away because of his counsels’ decisions.

I would grant the petition for a writ of habeas corpus limited to the sentence imposed, and I would give the state an opportunity to conduct resentencing proceedings within a reasonable period of time. I therefore respectfully dissent.

Posted by Marcia Oddi on Wednesday, July 11, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on "Deadline nears for Gary Supreme Court justice to seek another term"

Updating yesterday's entry, Justice Rucker has now filed notice with the Secretary of State, indicating his intention to stand for retention in November.

Posted by Marcia Oddi on Wednesday, July 11, 2012
Posted to Indiana Courts

Vacancy #2 on Supreme Court 2012 - How have the 7 trial court judges/applicants fared?

Today Ind. University-Robert H. McKinney School of Law professor Joel Schumm has prepared this introduction to his upcoming entries on the seven trial judge applicants.

Seven of the 22 applicants currently serve as trial judges throughout the state. Many of their decisions have been appealed to the Indiana Court of Appeals and occasionally to the Indiana Supreme Court. The appellate court’s response to their rulings provides interesting and useful information about adherence to precedent and the extent to which an applicant’s views may differ from those of the present appellate judiciary.

Over the next three days, the ILB will feature entries summarizing the cases in which the judge was reversed and an overall reversal percentage. This data was also provided for the semi-finalist applicants in 2010.

As a general point of reference, slightly more than 20% of cases are reversed or remanded on appeal in Indiana. Indigent criminal defendants have an automatic right to appeal at no cost, and the reversal rate in criminal cases is typically around 14%. Civil litigants, who must generally pay the expense of an appeal, pursue appeals less frequently and are more successful with a 35% reversal rate.* Although some cases present multiple issues in which only one was reversed, the case still counts as a reversal. Other cases include one or more errors that were found harmless or not preserved for review; these cases do not count as reversals.

Methodology: I searched the Indiana Cases database of Westlaw for any case associated with the name of the judge. To account for variations in middle initials and shortened names, the following search terms were used: Marla /2 Clark, Fran! /2 Gull, Steve! /2 Nation, Loretta /2 Rush, Elizabeth /2 Tavitas, Marianne /2 Vorhees, and Mary /2 Willis. Cases in which the judge’s name appears but he or she did not preside (as the judge or magistrate) were eliminated from the analysis. A case was considered only once; therefore, if transfer was granted, only the Supreme Court opinion was considered, and if rehearing was granted, only the dispositive opinion was counted. Finally, cases dismissed for procedural or briefing errors by appellate counsel were excluded, as these cases offer no assessment of the propriety of the trial court’s decision.
_______
*For more on the overall Court of Appeals reversal numbers, check the annual reports of the Court of Appeals, available here.

Posted by Marcia Oddi on Wednesday, July 11, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Gov't. - Do you have to pay use tax on your purchases of meteorites?

See this new entry from the Indiana Tax Reporter, headed "Revenue Finds "Casual Sales" Purchases of Meteorites not Subject to Sales Tax." A quote from the DOR ruling:

Taxpayer states that the meteorites were purchased in the course of casual sales from other meteorite enthusiasts and not from anyone in the business of selling tangible personal property at retail. Also, Taxpayer states that the meteorites were purchased for aesthetic reasons and not for resale by Taxpayer.

Posted by Marcia Oddi on Wednesday, July 11, 2012
Posted to Indiana Government

Tuesday, July 10, 2012

Vacancy on COA 2012: Gov. Daniels received the three finalists' names from the JNC one month ago, on June 11th [Updated]

Here is the June 11th ILB entry announcing the release of the Judicial Nominating Commission's report to the Governor. The word is that Gov. Daniels last week personally interviewed each of the applicants. The ILB is expecting an announcement shortly, perhaps by the end of this week.

The finalists are Hon. Robert R. Altice, Jr., Ms. Patricia C. McMath, and Hon. Rudolph R. Pyle, III. See their photos and applications here.

[Update] Judge Carr L. Darden's upcoming retirement ceremony is set for Wednesday, July 25th at 10:00 a.m. in the Indiana Supreme Court Courtroom.

Posted by Marcia Oddi on Tuesday, July 10, 2012
Posted to Vacancy on COA 2012

Vacancy #2 on Supreme Court 2012 - Reversal rates of the applicants who are trial court judges

Prof. Schumm is completing analyses of how the rulings of each of the seven trial court judges who are candidates for the upcoming Supreme Court vacancy have held up on appeal. The reports will appear in the ILB Wednesday through Friday of this week.

Here the Prof. Schumm's report from 2010 headed "How have the judges fared? Judge Steve David."

Posted by Marcia Oddi on Tuesday, July 10, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Courts - "Deadline nears for Gary Supreme Court justice to seek another term"

The ILB has been following this matter closely (see June 30th entry) and this evening Dan Carden has posted this story on the NWI Times webpage. The story begins:

INDIANAPOLIS | Time is running out for Indiana Supreme Court Justice Robert Rucker, a Gary native, to get on the November ballot and retain his seat on the state's high court.

Rucker, 65, has until 11 a.m. region time Monday to file paperwork with the Indiana Secretary of State that would allow voters to decide whether the 13-year court veteran should serve another 10-year term.

Posted by Marcia Oddi on Tuesday, July 10, 2012
Posted to Indiana Courts

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

For publication opinions today (1):

In In the Matter of the Adoption of N.W.R.; M.R. v. R.B. and R.B., and Indiana Dept. of Child Services, a 13-page opinion, Judge Najam concludes:

We hold that where, as here, before an adoption decree has been entered, the agency acting in loco parentis moves to withdraw its consent because it has failed in its statutory obligation to conduct a complete placement investigation, the presumption that its initial consent was proper is nullified. See Ind. Code § 31-19-11-1(a)(7). * * * Reversed and remanded with instructions.
NFP civil opinions today (2):

Kathleen G. Babchuk v. Kirk J. Daniels (NFP)

In the Matter of the Involuntary Commitment of R.T. (NFP)

NFP criminal opinions today (3):

Marcous Ford v. State of Indiana (NFP)

Roger A. Boggs v. State of Indiana (NFP)

Marlon L. Pendleton v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 10, 2012
Posted to Ind. App.Ct. Decisions

Monday, July 09, 2012

Ind. Courts - Long Odds for a Grant of Transfer in Not-For-Publication Civil Cases

This analysis is from Ind. University-Robert H. McKinney School of Law professor Joel Schumm.

The conventional wisdom among Indiana appellate practitioners has long been that it is very unlikely the Indiana Supreme Court will grant transfer in a not-for-publication opinion from the Court of Appeals. Appellate Rule 65(D) makes clear that NFP opinions cannot be cited as precedent in any court, so there is little reason for the Supreme Court to find a compelling reason of state-wide significance worthy of a grant of transfer. See generally App. R. 57(H).

A few years ago as part of a CLE presentation I ran transfer stats for a six-month period and found transfer was granted in only 3% of NFP cases but in 27.1% of FP cases. The reaction of most appellate lawyers at the time was that 3% was better odds than they expected for NFP decisions.

With the retirements of Justice Boehm and Chief Justice Shepard and appointment of Justice David and Justice Massa, I wondered how the NFP/FP distinction is playing out in the newly constituted Indiana Supreme Court. Justice David commented at an IBA Appellate Practice Section CLE last year that he reviews transfer petitions in FP and NFP cases no differently. The following table shows the transfer dispositions broken into civil/criminal and FP/NFP categories during the three month period of April through June of this year.

Indiana Supreme Court Transfer Grants: April-June 2012
  FP cases NFP cases FP & NFP
CIVIL 21.1% (8/38) 2.4% (1/41) 11.4% (9/79)
CRIMINAL 14% (6/43) 6.2% (6/97) 8.6% (12/140)
ALL CASES 17.3% (14/81) 5.1% (7/138) 9.6% (21/219)

It is not surprising that transfer grants are lower overall in criminal cases than in civil cases (8.6% versus 11.4%). Most criminal defendants are represented by appointed counsel and must pursue transfer in cases with a federal constitutional issue to preserve the claim for later federal habeas review.

What is surprising during the past three months, though, is that a criminal defendant seeking transfer from a FP opinion does not have significantly better odds at transfer (14%) than one with an NFP opinion (6.2%). Perhaps most surprising, though, is the long odds of transfer for civil litigants with an NFP opinion (2.4%). The only case in that category was this domestic relations case involving parenting time.

The annual reports of the Indiana Supreme Court do not include statistics on transfer grants by FP/NFP opinions, but they do include overall percentages of transfer grants in which Supreme Court opinions were issued. Comparing statistics from the last three months with data from three recent years suggests the percentage of recent transfer grants in civil cases was a little below the average while the percentage of recent transfer grants in criminal cases was above average.

Transfer Granted and Opinions Issued
  Civil Cases Criminal Cases All Cases
2008-09 13.7% 7.0% 9.5%
2009-10 17.2% 7.6% 10.7%
2010-11 11.3% 7.2% 8.7%

Three months is a short period of time, though, and it remains to be seen if the Court will continue to grant transfer in a significant number of NFP opinions and take a larger percentage of criminal cases than in the past.

Posted by Marcia Oddi on Monday, July 09, 2012
Posted to Indiana Transfer Lists

Ind. Courts - Notice of appeal now to be filed with Clerk of Appellate Courts rather than with the trial court clerk

That is from an article by Judge Barbara Brugnaux* in the July issue of Indiana Court Times. A quote:

The amendments to Rule 9 were effective January 1, 2012. The most significant change to appellate practice is contained in Rule 9(A) that now requires the notice of appeal to be filed with the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court instead of the trial court clerk. The 30-day deadline after entry of final judgment remains the same. The rule contains a two-year grace period to allow appellate attorneys to adjust to the rule. Until January 1, 2014, a notice of appeal filed with the trial court clerk will be deemed in compliance. After the grace period, a notice of appeal filed with the trial court clerk will forfeit any right of appeal.

Appellate Court Judge Terry Crone explained that the Court decided on the two-year period out of an abundance of caution to protect the rights of litigants, particularly criminal defendants, to file appeals. “We felt that two years was a reasonable amount of time for the knowledge of the new filing requirement to percolate to those attorneys who may not do much appellate work,” Judge Crone explained.

_______
*Judge Barbara Brugnaux is now a senior judge. She is formerly judge of Vigo Superior Court. She sits on the board of law examiners.

Posted by Marcia Oddi on Monday, July 09, 2012
Posted to Indiana Courts

Ind. Courts - "David Camm release hearing Monday afternoon"

So reports Harold J. Adams on the Louisville Courier Journal website posted late this morning. Some quotes:

David Camm could find out Monday afternoon whether he will be released on bond pending a third trial on charges that he murdered his wife and two children.

A hearing is set in Spencer Circuit Court at 2 p.m. EST.

Camm’s attorneys have filed a motion asking that their client be released under a state law that requires defendants be released from jail if they haven’t gone to trial within six months of being charged with a crime. * * *

Special Prosecutor Stan Levco is arguing that the rule does not apply in the case of retrials.

Posted by Marcia Oddi on Monday, July 09, 2012
Posted to Indiana Courts

Courts - "The blogification of U.S. law is not limited to the Supreme Court ."

The heading is a quote from a lengthy opinion piece today in Politico, written by Jeffrey Rosen. A sample:

Scalia’s angry rhetoric is only the most visible example of a growing phenomenon: the blogification of U.S. legal discourse. On the Supreme Court and lower courts, judges are abandoning the pose of impersonal neutrality; refusing to respect precedents with which they disagree, citing blogs and deriding their opponents with rhetoric borrowed from the Internet and cable news attack culture. * * *

The Rush Limbaugh of the federal appellate bench is Judge Janice Rogers Brown of the D.C. Circuit. In an April opinion, Brown contemptuously dismissed more than 70 years of Supreme Court precedents requiring courts to defer to legislatures in matters involving economic regulation. Brown’s opinion was striking not only for its assertiveness in demanding that the Supreme Court reverse itself, but also for its incendiary, pundit-like rhetoric. * * *

It’s not just lower court judges on the right who now ridicule Supreme Court precedents — judges on the left are equally assertive. Consider the recent Montana campaign finance case, which the Supreme Court reversed.

The state judges in both the majority and the dissent made clear their lack of respect for the Citizens United decision, which struck down bans on corporate funded political speech. By a 5-2 vote, the Montana state court upheld a 100-year-old state law banning a corporation from making a contribution or expenditure “that supports or opposes a candidate or political party.”

This Montana law looked much like the McCain-Feingold provisions that the Supreme Court struck down in Citizens United. But writing for the majority, Montana Chief Judge Mike McGrath pointed to his state’s tawdry history of political corruption that led voters to pass the corporate ban in 1912. He concluded by quoting a letter from Justice Sandra Day O’Connor introducing a Brennan Center study of the corrupting influence of contributions to judicial campaigns.

In his dissenting opinion in the Montana case, Justice James C. Nelson agreed with this. But he accused his colleagues of willfully ignoring the Supreme Court’s Citizens United decision.

“The language of the Citizens United majority opinion,” Nelson wrote, “is remarkably sweeping and leaves virtually no conceivable basis for muzzling or otherwise restricting corporate political speech in the form of independent expenditures.”

But Nelson went on to emphasize that he was holding his nose in urging his colleagues to follow Citizens United. In a remarkable passage, he stressed that he shared their disdain for the decision.

Posted by Marcia Oddi on Monday, July 09, 2012
Posted to Courts in general

Courts - "Should Supreme Court justices Google?"

Updating this ILB entry from June 9th, that linked to a Boston Globe article I termed "really eye-opening," Robert Barnes of the Washington Post has this story today. Some quotes:

Scalia cited a nine-day-old newspaper article in his dissent, and he is hardly alone: The justices routinely supplement their arguments with facts, studies, media reports, law review articles and other materials that none of the parties in the case before them ever put forward or countered.

How judges use generalized facts about the world in their legal decisions has become a new focus of legal academic research.

Well known is the story of Justice Harry Blackmun hunkering down in the medical library of the Mayo Clinic to research abortion procedures before he wrote the 1973 majority opinion in Roe v. Wade.

But there’s been an information revolution since then.

“Now the justices (and their clerks and their librarians) are flooded with information literally at their fingertips. Social science studies, raw statistics, and other data are all just a Google search away,” writes Allison Orr Larsen, a professor at William & Mary Law School.

“If the justices want more empirical support for a factual dimension of their argument, they can find it easily and without the help of anyone outside of the Supreme Court building,” she wrote.

Both stories link to this 53-page law journal article by Alli Orr Larsen, College of William and Mary. Barnes' story today goes into much detail about Larsen's study, including:
Larsen, a former clerk to retired Justice David Souter, studied 15 years of Supreme Court decisions for her paper. She found more than 100 examples of asserted facts from authorities never mentioned in any of the briefs in the case. And in the 120 cases from 2000 to 2010 rated the most salient — judged largely by whether they appeared on the front pages of newspapers — nearly 60 percent of them contained facts researched in-house. * * *

There are no rules about in-house research, and Larsen is troubled by the risks: “the possibility of mistake, unfairness to the parties, and judicial enshrinement of biased data which can now be quickly posted to the world by anyone without cost.”

She does not claim that it has changed the outcome of a case, but she notes that inaccurate information has found its way into opinions, in part, she argues, because no lawyer for the other side knew about it or had a chance to challenge it. * * *

[Larsen] says the practice undermines the adversary process.

Asked whether she had engaged in in-house fact-finding as a clerk to Souter, she laughed and declined to comment. But she added:

“I will tell you Justice Souter didn’t own a computer.”

Posted by Marcia Oddi on Monday, July 09, 2012
Posted to Courts in general

Ind. Decisions - Transfer list for week ending July 6, 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, July 6, 2012. It is one page (and 12 cases) long.

No transfers were granted last week. Two petitions for transfer were dismissed, Richard Mitchell v. State of Indiana and Robert Murphy v. State of Indiana. Mitchell was a pro se attempt at an interlocutory appeal, which was denied by the COA. The Supreme Court: "THE TRANSFER PETITION IS PROCEDURALLY IMPROPER AND IT IS DISMISSED. PROCEEDINGS IN THIS APPELLATE CAUSE NUMBER ARE AT AN END."

Murphy's appellate docket begins with this from the COA:

APPELLANT'S MOTION IS DEFECTIVE - MOTION IS NOT DOUBLE-SPACED; AND MOTION DOES NOT INCLUDE A CERTIFICATE OF SERVICE. ALSO, APPELLANT HAS NOT TENDERED AN APPEARANCE IN ACCORDANCE WITH APPELLATE RULE 16.
It ends with this from the Supreme Court:
THE TRANSFER PETITION IS PROCEDURALLY IMPROPER AND IS IS DISMISSED. PROCEEDINGS IN THIS APPELLATE CAUSE NUMBER ARE AT AN END.
The July 6th transfer denial in Jack Messer v. New Albany Police Department is discussed in this July 7th ILB entry.

Posted by Marcia Oddi on Monday, July 09, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Derrick Baker v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, July 09, 2012
Posted to Ind. App.Ct. Decisions

Environment - "Ethanol producers feeling pinched"

A lengthy article by Ameet Sachdev of Chicago Tribune looks at the problems affecting the producers. A sample:

"There's a lot of uncertainty in the market," said Sean Hill, an industry economist with the U.S. Energy Information Administration. "The industry is dealing with a lot of moving parts."

At the moment the industry is caught in a classic squeeze. Cash corn prices are trading at abnormally high levels because of dwindling supplies. Farmers are being cautious in making sales of corn because the record-high heat and drought that's scorched the Midwest could hurt their yields in the fall.

At the same time, ethanol prices have faded since the beginning of the year because of falling gas prices. Ethanol follows gas prices pretty closely. Ethanol demand also has dropped because of decreasing exports.

The squeeze became so severe at Valero's plants in Albion, Neb., and Linden, Ind., that it was costing the company more to make ethanol at those mills than it could sell the fuel for, said spokesman Bill Day. The move comes amid drought conditions in both states.

Posted by Marcia Oddi on Monday, July 09, 2012
Posted to Environment

Vacancy #2 on Supreme Court 2012 - Gender is a qualification

Maureen Hayden of CNHI had a column Sunday in the New Albany News & Tribune headed: "State’s highest court needs a female." At least one, as she concludes:

Here’s the closing argument I’d make, borrowed from U.S. Supreme Court Justice Ruth Bader Ginsberg in an early 2009 interview with The New York Times, when after the retirement of Justice Sandra Day O’Connor she was the only woman on the nation’s top court: It just doesn’t look right.

Here’s her full quote (taken from the Times story, which also described what Justice Ginsberg was wearing during the interview, right down to her earrings): “My basic concern about being all alone was the public got the wrong perception of the court. It just doesn’t look right in the year 2009.”

So it’s 2012 already. Time for the Indiana Supreme Court to start to look less male and more right.

The Fort Wayne Journal Gazette Sunday ran "An open letter to Indiana Gov. Mitch Daniels: Court cries for the view of a woman." Some quotes:
For the third time in your eight-year tenure, you’ll have the opportunity to fill a vacancy on the court, one of only three state supreme courts with no female judges. In each of your last two appointments, you chose eminently qualified jurists, but you did not seek to improve the perspective of the court by appointing a woman.

We trust that your decision in each case was based on a sincere desire to select the most qualified among three finalists but respectfully suggest that the quality of the female candidates among the finalists was equal to that of the male candidates selected and that the current lack of female representation on the court casts an unfortunate perception of bias. A democratic society demands fairness and equality in its judicial system, and equal access to justice.

Matters before the state’s highest jurisdictional court are a reflection of society. Decisions involving domestic violence, child support, custody and the treatment of women in the courts cry for a female perspective to ensure those matters are addressed in the best manner.

Fortunately, you once again have an opportunity to add that perspective. The 22-member applicant pool for the vacancy includes 16 women. Allen Superior Court Judge Fran Gull is among the impressive candidates.

When Justice Frank Sullivan steps down this fall, a woman should join Chief Justice Brent Dickson and justices Robert Rucker, Steven David and Mark Massa on the bench. The only qualification the current court lacks is a perspective none of the four can offer.

ILB: Which brings to mind this exchange between former JNC attorney member John Trimble and federal Judge Jane Magnus-Stinson at the ISBA “Demystifying” seminar in June:
In answer to a question about whether the JNC takes diversity into account, Mr. 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 responded that Gov. Bayh considered diversity to be a qualification.

The FWJG editorial just quoted includes individual photos of the five justices. As of today there is no official group photo of the currently constituted Indiana Supreme Court, and within the next few months it will become out-of-date with the loss of J. Sullivan and the appointment of his replacement. But there is this "qetting ready for their closeup photo" of the justices being prepped for their official photo. The justices are the five men in black robes.

Now contrast the 5-man Indiana Supreme Court photos with these photos of the supreme courts of our sister states (in all of which, interestingly, the justices are elected):

Posted by Marcia Oddi on Monday, July 09, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - Viewing the applications: the law school grades of the applicants

Ind. University-Robert H. McKinney School of Law professor Joel Schumm has prepared for the ILB an introductory review of the materials submitted by the candidates for the upcoming vacancy on the Indiana Supreme Court. This entry is on the applicants' grades. See also the earlier entries on the applicants' ages and letters of recommendation.

It has become a tradition here on the ILB to report the law school grades and class rank of applicants. As described in an earlier entry: First on the list of statutory “considerations” for each member of the judicial nominating commission to weigh in evaluating Supreme Court applicants is “Legal education, including law schools attended and education after law school, and any academic honors and awards achieved.” Ind. Code § 33-27-3-2(a)(1).

Question IV.B. on the application form directed candidates: “List below all law schools and post-J.D. programs attended. Attach a certified transcript from each to the original application and attach copies of each transcript to each application copy.”

In addition, the form asked for "Degree and Class Rank."

The next question asked applicants to “[d]escribe any academic honors, awards, and scholarships you received and when.”

As in prior years, some applicants disclosed GPA and class rank on their applications while others did not. The completed applications will soon be posted online, but the transcripts may only be reviewed in person.

The following list, which was compiled by reviewing both the applications and the transcripts, is sorted by GPA and offered with the caveat that grading practices at some law schools have changed over the years.

Vorhees Notre Dame 3.671 “3 or 4”/180
Clark IU-Maurer 3.57 Top 10%
Fisher IU-Maurer 3.55 Top 10%
Kozicki Loyola (Chicago) 3.47 46/170
Joven IU-Maurer 3.39 Top 20%
Lewis Loyola (Chicago) 3.38 54/145
Orr IU-McKinney 3.33 Top 15%
Slaughter IU-Maurer 3.29 Top 15%
Gooden IU-McKinney 3.22 __
Tavitas Notre Dame 3.157 __
Rush IU-Maurer 3.12 Approx. Top 24%
Hardman IU-Maurer 2.93 __
Parsons IU-McKinney 2.93 80/219
Brown IU-Maurer 2.86 __
Metzel IU-McKinney 2.86 __
Bradford IU-McKinney 2.74 104/185
Willis IU-McKinney 2.74 __
Kuzma IU-Maurer 2.7 Top 34.7%
Young IU-McKinney 2.57 __
Nation IU-McKinney 2.45 __
Roper IU-McKinney 2.32 “Low 25%”
Gull Valparaiso non-traditional grades __

How much do grades matter in the selection process? At a recent IBA Young Lawyers Division Luncheon, Judge Tim Oakes asked rhetorically when was the last time a summa or magna cum laude law school graduate was chosen through merit selection. The answer would appear to be Justice Ted Boehm, a magna cum laude graduate of Harvard Law School who was appointed to the Indiana Supreme Court by Governor Bayh in 1996.

Here are links to the grades of applicants for the 2010 and 2012 Supreme Court vacancies.

Posted by Marcia Oddi on Monday, July 09, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - Viewing the applications: The ages of the applicants

Ind. University-Robert H. McKinney School of Law professor Joel Schumm has prepared for the ILB an introductory review of the materials submitted by the candidates for the upcoming vacancy on the Indiana Supreme Court. This entry is on the applicants' ages.

Article 7, Section 11 of the Indiana Constitution provides that justices “shall retire at the age specified by statute in effect at the commencement of his current term,” which remains 75, although the mandatory retirement age for trial court judges was removed last year.

As summarized in these ILB posts from 2010 and 2012, the age of applicants for recent Supreme Court vacancies has varied considerably, although the average on each of those occasions was 53. The successful applicants were at or below the average age: Justice David was 53 at appointment and Justice Massa was 51. The average age of the seven justices appointed before them, however, was 45.

The average age of applicants this round is 48 with a range from 38 to 62. [Note: the ages listed below are as of July 17, the first day of interviews.]

Lewis 38
Clark 40
Gooden 41
Joven 42
Metzel 42
Fisher 43
Kozicki 43
Roper 44
Willis 45
Hardman 46
Orr 48
Slaughter 49
Young 49
Tavitas 50
Bradford 52
Gull 53
Vorhees 53
Rush 54
Parsons 55
Kuzma 56
Brown 58
Nation 62

Posted by Marcia Oddi on Monday, July 09, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Courts - Married 19 years: Judge Mary R. Harper, Porter Circuit Court and Judge David L. Chidester, Porter Superior Court #4

This article by James F. Maguire in the July issue of Indiana Court Times focuses on Porter County Judges Harper and Chidester. Some quotes:

Judge Chidester was elected Superior Court Judge in Valparaiso in 2003. Judge Harper is a Republican and Judge Chidester is a Democrat. In 1996, Judge Harper was elected to be the Circuit Court Judge of Porter County. Since 2003, Judges Harper and Chidester are the only married trial court judges in Indiana. * * *

[Judge Harper] Some things we encounter have left me scratching my head and chuckling. After all these years, 19, some of those with whom we come into professional contact don’t know we’re married. We sleep with a fax machine next to the bed for nighttime warrant requests and get a lot of calls. Most are for Dave, as he handles the traffic and OWI cases. A number of officers call for Dave and if he is out of town, they sound lost and tell me they need to find a judge. Some others, when I tell them I’m Judge Harper and I can help them, act like they have just stumbled upon a scandalous liaison.

Posted by Marcia Oddi on Monday, July 09, 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?

(A number of these from this weekend are "must read." Click on them below, or just scroll down the main page and read them all.)

From Sunday, July 8, 2012:

From Saturday, July 7, 2012:

From late Friday, July 6, 2012:

Posted by Marcia Oddi on Monday, July 09, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/9/12):

Next week's oral arguments before the Supreme Court (week of 7/16/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/9/12):

Wednesday, July 11

Next week's oral arguments before the Court of Appeals (week of 7/16/12):

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, July 09, 2012
Posted to Upcoming Oral Arguments

Sunday, July 08, 2012

Ind. Gov't. - Governor Daniels as Purdue President: Two different looks

Eric Weddle of the Lafayette Journal Courier reports today in a long story headed "Purdue trustees gave $27K to Daniels' campaigns" that begins:

Before Mitch Daniels was voted in as Purdue University’s next president last month, half of the university’s board of trustees financially supported his two campaigns for governor.

Six of the 10 trustees or their companies donated more than $27,000 to Daniels’ campaigns or a political action committee supporting him between 2003 and 2010, according to state campaign finance records. Two trustees who were members of the search committee to identify finalists to be President France Córdova’s successor gave individually more than $14,000 to Daniels.

Purdue trustees have forcefully denied the slightest hint of impropriety in Daniels’ hire. Yet questions from faculty, students and the public over the ethics of it continue to come.

Lesley Weidenbener, in a Sunday column in the Louisville Courier Journal headed "Note to Purdue students and faculty: You can influence Daniels with right approach," writes:
[T]hose who oppose Daniels’ move to Purdue fail to see that when he arrives at the university, he will embrace a new set of goals. No longer will Daniels be charged with divvying up the state’s tax money among competing interests — public schools, prisons, Medicaid and higher education — but will instead be focused on how to ensure that Purdue University gets every dollar it can from lawmakers, raises every cent possible from donors and receives every grant available to support its research and development.

Daniels will take on this role with gusto. It’s what he’s done in every position he’s had — as an adviser to presidents, an executive at a pharmaceuticals company, as governor of Indiana and soon as president of Purdue.

Those concerned about projects or programs at Purdue should use the next six months preparing to show Daniels that what they’re doing matters — that it gives the university a national reputation, that it matters to the local community, or that it will help Purdue graduates better succeed in life.

Daniels wants to achieve. He will want Purdue to achieve. He will want its faculty and students to achieve. The key to working with Daniels is to show him how a program achieves — financially, yes, but also culturally and emotionally.

See the column for examples.

Posted by Marcia Oddi on Sunday, July 08, 2012
Posted to Indiana Government

Ind. Gov't. - More on "Indiana loses administrative appeal to defund planned parenthood"

Updating this brief ILB entry from July 6, today Charles Wilson of the AP has a more comprehensive report that begins:

Indiana's decision to deny Planned Parenthood Medicaid funds because it performs abortions denies women the freedom to choose their health care providers, a federal hearing officer said.

The state had asked the Centers for Medicare and Medicaid Services in Chicago to reconsider its June 2011 ruling that found changes in Indiana's Medicaid plan unacceptable. But a hearing officer recommended in documents released Friday that a CMS administrator uphold the agency's initial decision.

The changes to Indiana's plan resulted from a 2011 law that would have made the state the first to deny the organization Medicaid funds for general health services, including cancer screenings. The law has been on hold while the dispute works its way through the courts.

The Indiana attorney general's office, which already is appealing a federal judge's order blocking the law, said it may also contest the panel's recommendation. The state had argued that the dispute should be decided administratively by the CMS, not in court.

Re this Aug. 2, 2011 ILB entry, headed "State files brief in 7th Circuit appeal of Judge Pratt's district court ruling granting preliminary injunction," the 7th Circuit has not yet ruled. The oral argument before the 7th Circuit took place Oct. 20, 2011. See this Oct. 19 and this Oct. 21 ILB entry.

Posted by Marcia Oddi on Sunday, July 08, 2012
Posted to Indiana Government

Environment - "Deep trouble? Carbon dioxide capture and storage may cause quakes"

That is the heading to this lengthy story by James Bruggers in today's Louisville Courier Journal.

Posted by Marcia Oddi on Sunday, July 08, 2012
Posted to Environment

Saturday, July 07, 2012

Ind. Decisions - "Supreme Court won’t rule on Messer case"

The Supreme Court has denied transfer in the case of Jack Messer v. New Albany Police Department (ILB summary of 2-1 COA opinion here). The Court's transfer list will not be available until at least Monday, but the Supreme Court's decision not to grant transfer is reported today in two SE Indiana papers.

Daniel Suddeath's story in the New Albany News & Tribune begins:

NEW ALBANY — A petition for the Indiana Supreme Court to hear Jack Messer’s appeal of a suspension from the New Albany Police Department has been denied.

The Supreme Court released a notice Friday stating it denied the request of Messer’s legal counsel to transfer jurisdiction of the case from the Indiana Court of Appeals to the Supreme Court.

In March and by a 2-1 vote, the Court of Appeals upheld the decision of the New Albany Police Merit Commission to suspend Messer for 30 days without pay for making alleged racist comments during a January 2010 roll call meeting.

Messer made a statement to the effect “the worst thing we ever did was to give those people their civil rights” in reference to black people. Messer didn’t deny making the statement, but said he was misunderstood and that he was criticizing the government for its treatment of minorities.

The decision had previously been upheld in 2011 in Floyd County Superior Court. Messer — a 28-year NAPD veteran and former New Albany City Councilman and mayoral candidate — has already served the suspension.

From the Louisville Courier Journal, Harold J. Adams story begins:
The long-running legal battle over a New Albany police officer’s comment on race and civil rights may finally be over.

The Indiana Supreme Court Friday turned down Jack Messer’s request that it hear his effort to reverse an Indiana Court of Appeals decision upholding a 30-day suspension issued against him by the New Albany Police Merit Board.

Messer told other officers following a January 2010 roll call that civil rights for blacks was “the biggest mistake the government made.” The 28-year veteran of the force explained that the remark was not intended to be racist and later defended it as constitutionally protected free speech.

Posted by Marcia Oddi on Saturday, July 07, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - "Man's conviction stands despite former Newton prosecutor's lapsed law license"

Readers may recall the ILB entries in 2010 about the then Newton County prosecutor, James E. Barce, who was reprimanded by the Supreme Court 3-2 for practicing for years while on inactive status. From the opinion (4th case):

Respondent began serving as the part-time prosecuting attorney for Newton County in 1995. In 2005, Respondent elected to become a full-time prosecutor, which required that he close his private law practice. On August 5, 2005, Respondent signed an affidavit of inactivity, which placed his law license on inactive status. In the affidavit, Respondent stated under the penalties of perjury that he was not engaged in the practice of law in Indiana. Respondent signed substantially similar affidavits in 2006, 2007 and 2008. While claiming inactive status, Respondent paid a reduced annual registration fee.

In February 2009, defense counsel in a case Respondent was prosecuting pointed out that his law license was inactive. Promptly thereafter, Respondent arranged to place his license on active status, self-reported the violation to the Commission, and offered to pay the difference between the reduced fees he paid and the active status fees for the years he was on inactive status. * * *

[T]he Court imposes a public reprimand for Respondent's professional misconduct.

The dissent, written by CJ Shepard and joined by J Rucker, argued unsuccessfully for suspension, as has been recommended by the Disciplinary Commission, concluding:
The Commission obviously thinks practicing law without a license is important, and so do I. The Court should suspend Barce for thirty days, and his reinstatement should be conditioned on his paying both the back registration fees and reimbursing the costs of convening the jury that had to be sent home when his violation was brought to light.
In a NFP opinion issued Friday, Daher v. State, brought by a pro se appellant, the panel concluded:
The trial court correctly denied Daher’s motion [for relief from judgment], and we find that Barce’s actions as an unlicensed de facto prosecutor did not harm or prejudice Daher in any manner. We affirm.
Dan Carden of the NWI Times reports today on the ruling in this story. Some quotes:
INDIANAPOLIS | An Indianapolis man initially brought to court while the law license of former Newton County Prosecutor Ed Barce was inactive is not entitled to have his conviction automatically set aside, the Indiana Court of Appeals ruled Friday. * * *

In his appeal, Daher argued he was improperly arrested, tried, convicted and sentenced because Barce had put his law license on "inactive status" in 2005, the year he became full-time prosecutor. Inactive status allowed Barce to pay a reduced registration fee.

Barce reactivated his license in February 2009 after his inactive status was discovered. He was publicly reprimanded by the Indiana Supreme Court for the unauthorized practice of law and lost his bid for re-election in the 2010 Republican primary.

Regarding Daher, the appeals court ruled 3-0 that Barce was prosecutor in fact, even if not in law, and as such his actions must have prejudiced the case to overturn the conviction.

"It is insufficient to prove only that Barce's license was inactive," Judge Michael Barnes said. "Some harm must accompany this proof, and no harm has been alleged or substantiated by Daher."

Posted by Marcia Oddi on Saturday, July 07, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Chicago Tribune reports on problems with the Illinois child abuse hotline

Christy Gutowski, Chicago Tribune reporter, has this very long story that will be in the Sunday paper, headed "Problems for DCFS child abuse hotline: Less than 40% of callers reach a specialist on first attempt; others must leave messages." Some sample quotes:

In January 1980, Illinois was among the first states in the nation to centralize its child abuse hotline with a single toll-free number that rings into the call center, within sight of the Capitol. * * *

Callers dial 800-25ABUSE and reach a "call-floor" specialist who assesses whether the allegation meets the legal requirements for the state to intervene. If the specialists are backed up and it's not deemed an emergency, a worker asks the caller to provide a name and number, and the hotline calls back.

Kendall Marlowe, DCFS' spokesman, acknowledged the problem of using message takers, but he said the alternative is more abandoned calls. Less than 3 percent of hotline calls in the 11-month period resulted in a hang-up, the newspaper found, reflecting the best rate chronicled in more than a decade.

The national average is about 5 percent.

"We very rarely put calls on hold because that doesn't accomplish anything," Marlowe said. "If the child is not in immediate danger, we get the caller's name and number and call them back. The hotline needs to be properly staffed so that we're taking live calls and not relying on a callback system."

Besides Illinois, 33 states have a toll-free child abuse hotline, according to federal government statistics. Officials in Florida, Indiana and New York report that most of their hotline calls are answered within minutes. In Michigan, for example, the average wait is three minutes. None reported a similar message-taking system. * * *

If a caller's information meets specific legal criteria, specialists take a formal report and immediately relay it to the appropriate DCFS office. An assigned investigator then must make a good-faith effort to locate the child within 24 hours — or immediately in the most serious cases. * * *

The majority of hotline calls are made by police, school and hospital staff who are required by law to file a report if they suspect a child is in danger.

Frustrated with the delayed responses, a state committee of medical professionals asked Calica to set up a separate phone line dedicated to mandated reporters. Agency officials argue that would create more bureaucracy.

Posted by Marcia Oddi on Saturday, July 07, 2012
Posted to Indiana Government

Vacancy #2 on Supreme Court 2012 - Viewing the Applications: The Letters of Recommendation

Again this time around, Ind. University-Robert H. McKinney School of Law professor Joel Schumm has prepared for the ILB an introductory review of the materials submitted by the candidates for the upcoming vacancy on the Indiana Supreme Court. This entry is on the letters of recommendation. Separate entries on applicants' ages and law school grades will be posted Monday morning. Additional commentary will appear next week when the redacted applications are posted online by the Court staff.

Viewing the Applications: The Letters of Recommendation

According to the application instructions, “The Commission will consider on behalf of each applicant a reasonable number of letters of recommendation.” Reasonable is not defined, and I had the impression that ten to fifteen was a reasonable number. Moreover, former Commission members who spoke at the ISBA “Demystifying” seminar in June emphasized the importance of quality over quantity. Although applications are posted online, letters of recommendation are not; they may only be reviewed in person.

This post from 2012 and this one from 2010 mentioned some of the letters received for applicants applying for previous vacancies. Judge Bradford received the most letters in 2012 and was a finalist, while Tom Fisher received the most in 2010 and was a semi-finalist. This round it appears that Judge Nation received the most letters at approximately ninety. Other applicants received as few as two letters.

Judge Bradford incorporated the letters from his earlier application and added a few more, including letters from Judge John Baker of the Court of Appeals and emeritus IU Law Professor William Harvey. Although Judge Brown included several letters from colleagues on the Court of Appeals in 2010, it appears only Judge Barnes and Judge Vaidik submitted letters this year. Court of Appeals’ judges also wrote letters for other applicants, including Judge Baker (for Carol Nemeth Joven, a former clerk), Judge Kirsch (for Marla Clark, a former law clerk), Senior Judge Sullivan (for Karen Orr, a former clerk), and Judge May (for Abigail Kuzma).

Some prominent Indiana attorneys previously mentioned as strong contenders for the Indiana Supreme Court submitted letters for applicants, including:

Finally, a few letters have been copied for the ILB and may be accessed through the links provided below: Although most letters were glowing with praise, some letters fell short of a ringing endorsement. For example, Senator Richard Lugar wrote a letter for an applicant with whom he is “not personally acquainted” but believes has experience that “may make her a viable candidate for this position.”

Posted by Marcia Oddi on Saturday, July 07, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - "16 women among 22 seeking seat on Indiana Supreme Court"

Carrie Ritchie of the Indianapolis Star today takes a look at the upcoming vacancy, caused by the resignation of Justice Sullivan later this year, and who may be selected to fill it. A few quotes:

"This time, three-quarters of the applicants are women, and there are some really well-qualified female candidates," said Joel Schumm, a professor at the McKinney School of Law. * * *

Indiana's drought of female justices could be attributed to the fact that, until more recent decades, women weren't as prevalent in the field of law, Schumm said.

But that has changed now, and some say it's time to make sure women serve on the court.

Women make up half the state's population, and they deserve representation on the court, said Indianapolis attorney Karen Celestino-Horseman.

"This is the highest court in the state of Indiana," she said. "It's a court that should be representative of the people who populate Indiana. . . . There should be at least one woman on the court. It is time."

Celestino-Horseman said she was "delighted" to see how many qualified women applied for Sullivan's seat. Seven are sitting judges in other courts and the rest are attorneys.

Posted by Marcia Oddi on Saturday, July 07, 2012
Posted to Vacancy #2 on Supreme Court 2012

Friday, July 06, 2012

Ind. Gov't. - "DLGF Publishes Memorandum on Changes to Requirements for Claiming Homestead Deduction"

Thanks to the Indiana Tax Reporter for this entry setting out the Commissioner's memo on implementation of HEA 1072. See, for example:

Non-code Section 133 Voids 50 IAC 24-3-2

50 IAC 24-3-2 listed sixteen (16) items that the taxpayer could use as evidence of principal place of residence for purposes of the homestead deduction. Under non-code section 133 of HEA 1072, 50 IAC 24-3-2 was voided and will be removed from the Indiana Administrative Code. Non-code section 133 expires July 1, 2014.

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Indiana Government

Ind. Gov't. - "NC attorney general and utilities commission investigating Duke Energy"

Amazing story out of North Carolina, here reported by John Murawski and David Ranii of the Charlotte Observer. Must read.

From the NYT Deal Book, a long story by Peter Lattman headed "Uproar Over C.E.O.’s Ouster at Merged Energy Giant."

From JoAnn S. Lublin and Rebecca Smith of the WSJ, a long story headed "Intrigue Behind Ouster at Duke Energy ." See also this earlier story from the WSJ headed "Behind Duke's CEO-for-a-Day."

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Indiana Government

Ind. Gov't. - "Indiana loses administrative appeal to defund planned parenthood"

IndyPolitics is reporting this afternoon in a story that begins:

The state of Indiana has lost a federal administrative appeal regarding its efforts to defund Planned Parenthood and stop the agency from receiving Medicaid funds.
For background see this Sept. 26, 2011 ILB entry quoting an AG press release. See also this Aug. 2, 2011 ILB entry.

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Indiana Government

Vacancy #2 on Supreme Court 2012 - The newest citizen member of the Judicial Nominating Commission

Although as of this afternoon the Judicial Nominating Commision website still shows Fred McCashland, an Indianapolis resident and retired government teacher from Brebeuf Jesuit Preparatory School as one of the three Governor's citizen appointees on the Judicial Nominating Commission, the ILB has received word that Mr. McCashland has resigned. He was not present during the second round of the Court of Appeals interviews on June 4th.

In his place the Governor has appointed Ryan Streeter of Indianapolis. Mr. Streeter is mentioned on Wikipedia. Mr. Streeter also has a blog, RyanStreeter.com and he is on Twitter @streeterryan.

Mr. Streeter had an op-ed in the June 22, 2012 issue of the Indianapolis Star on entitlement reform, and is a policy adviser to Mike Pence, according to this June 7, 2012 AP story by Tom LoBianco.

He will serve the remainder of Mr. McCashland's term, which ends Dec. 31st of this year.

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - Two Indiana cases today from 7th Circuit, plus one from Illinois that sounds familiar ....

Here is the one from Illinois (US v. Collins) that sounds familiar, at least at the start:

SYKES, Circuit Judge. Michael Collins served for many years as a city councilman and vice-mayor of East St. Louis, Illinois, but left city service in 2002 and moved to the suburbs. Although he no longer lived in the city, he used his previous address in East St. Louis to continue to vote there and to establish residency for his successful election and re-election to the public office of precinct committeeman for the local Democratic Party.
Now, from Indiana district courts:

In US v. Mota (ND Ind., Simon), a 12-page opinion, Circuit Judge Manion writes:

A jury convicted Armando Mota of attempting to distribute 500 grams or more of cocaine and of possessing with the intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. At the start of his jury trial, Mota learned that a government agent had failed to record and relay exculpatory evidence regarding a conversation between the agent and Mota’s co-defendant, Jorge Ponce, during which conversation Ponce assumed complete responsibility for the crime and proclaimed Mota’s innocence. On appeal, Mota argues that the agent’s failure to record the conversation and to pass on the information to Mota violates Brady v. Maryland, 373 U.S. 83 (1963), and that he is thus entitled to a new trial. While the failure to transmit exculpatory evidence was inexcusable, Mota learned of this evidence at the start of his trial and thoroughly presented it to the jury. Also, because Mota had the opportunity to cross-examine the negligent agent and because Ponce testified on Mota’s behalf, we cannot conclude that Mota was denied a fair trial. Mota also argues that the evidence presented by the prosecution is insufficient to sustain his conviction. Considering the evidence presented by the prosecution at trial which included testimony from the government informant who met Ponce and Mota in order to conduct a drug deal and the audio recording of this sting operation, we find there was sufficient evidence from which a jury could find guilt beyond a reasonable doubt. Therefore, we affirm the judgment of the district court.
In US v. Cephus et al (ND Ind., Lozano), a 13-page opinion, Circuit Judge Posner writes:
The defendants were tried together for conspiring to entice underage girls, often runaways, to engage in prostitution, to transport them (along with adult women who also worked for the ring) in interstate commerce to engage in prostitution, to use force and fraud to coerce adult women to engage in prostitution, and to commit related offenses. The defendants were also charged with the underlying offenses. * * *

Stanton Cephus’s argument that his 324-month sentence is grossly disproportionate to his role in the offenses is frivolous, and that brings us to the last issue: whether defendant Stewart is entitled to a remand because of an ambiguity in his sentence. At the sentencing hearing the judge imposed life sentences on him on seven counts for which the jury convicted him, and on the other seven counts of conviction imposed sentences ranging from 5 to 10 years. The judge added that the sentences are “all to be served consecutively to each other.” The written judgment, however, states that all the sentences are “to be served concurrently.” * * *

Yet, it might seem that since Stewart’s written judgment is more lenient than the spoken one, he has nothing to gain from challenging it by seeking a remand. But we can’t be certain of that. Again suppose that in a collateral proceeding Stewart’s life sentences are voided and he is resentenced; the judge might follow his original oral pronouncement (if we had not questioned it) and make the term sentences consecutive; and the Bureau of Prisons would be bound. So Stewart’s judgment should be remanded to enable the district judge to reconcile the discrepancy between his written and oral sentences.

In all other respects the judgments are affirmed.

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court posts disciplinary order, filed July 6th

In re John L. Stewart is a published order of interim suspension upon notice of guilty finding. From the order:

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(11.1)(a), files a "Notice of Guilty Finding and Request for Suspension," asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony. Respondent filed a response admitting the material allegations of the Commission’s Notice of Guilty Finding.

The Court, being duly advised, now finds that Respondent has been found guilty of the following offense under Indiana law: Operating a vehicle while intoxicated with a prior conviction, a class D felony.

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

All Justices concur, except Sullivan and Rucker, JJ., who would deny the request for interim suspension and set a deadline to advance the case.

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (0):

NFP civil opinions today (0):

In the Paternity of: A.R. & P.H., by Next Friend, Tammy Raab; Christopher Hall v. Tammy Raab (NFP)

Alea London, Ltd. v. Richard Nagy, Jr., and Christopher Buckler (NFP)

NFP criminal opinions today (0):

Charles Hazelbaker v. State of Indiana (NFP)

Santos C. Lopez v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Ind. App.Ct. Decisions

Courts - "Court Hearing Video of Angry Jurist Shouting ‘Shut Up’ Gains YouTube Traction"

Via the ABA Journal, a 15-minute video. Martha Neil's report begins:

Updated: An official recording of a May family court hearing in West Virginia is becoming an unexpected YouTube hit. It quickly topped more than 10,000 views, after a pastor who is a party in the divorce case at issue got hold of it and conveyed it to a wider audience, and it was nearing the 80,000 mark after about nine days online.

In addition to using the tape to bolster his complaint last month to the state Judicial Investigation Commission about Putnam County Circuit Court Family Law Judge William M. "Chip" Watkins III, the Rev. Arthur D. Hage, 63, also provided copies to the news media, the West Virginia Record reports. * * *

Although there are times of calm, the judge also erupts at Hage repeatedly.

Apparently Above the Law reported this first, also on July 2.

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Courts in general

Vacancy #2 on Supreme Court 2012 - Here are the applications

From Indiana Courts ‏@incourts:

22 applications with writing samples, grades, recommendation letters now available (law library, St. House Rm 316)
Check photo

Prof. Joel Schumm will be reviewing the materials this afternoon, along with others. The review time is not limited to one hour, as in the past.

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - Here are the just released interview times

All twenty-two applicants will be interviewed by the Commission over a two-day period. The interviews are open to the public and press.

Tuesday, July 17th

9:00 a.m. – 9:20 a.m. – Mr. Thomas M. Fisher
9:20 a.m. – 9:40 a.m. – Ms. Alicia A. Gooden
9:40 a.m. – 10:00 a.m. – Ms. Karen R. Orr
(Break)
10:15 a.m. – 10:35 a.m. – Hon. Frances M. Gull
10:35 a.m. – 10:55 a.m. – Mr. Geoffrey G. Slaughter
10:55 a.m. – 11:15 a.m. – Ms. Abigail Lawlis Kuzma
(Break)
11:30 a.m. – 11:50 a.m. – Ms. Andrielle M. Metzel
11:50 a.m. – 12:10 p.m. – Hon. Marla K. Clark
(Executive Session)
1:30 p.m. – 1:50 p.m. – Mr. John P. Young
1:50 p.m. – 2:10 p.m. – Hon. Elaine B. Brown
2:10 p.m. – 2:30 p.m. – Hon. Marianne L. Vorhees
(Break)
2:45 p.m. – 3:05 p.m. – Ms. Brenda A. Roper
3:05 p.m. – 3:25 p.m. – Ms. Carol Nemeth Joven
3:25 p.m. – 3:45 p.m. – Mr. Lyle R. Hardman

Wednesday, July 18th

9:00 a.m. – 9:20 a.m. – Hon. Mary G. Willis
9:20 a.m. – 9:40 a.m. – Hon. Steven R. Nation
9:40 a.m. – 10:00 a.m. – Ms. Erin Reilly Lewis
(Break)
10:15 a.m. – 10:35 a.m. – Ms. Diane L. Parsons
10:35 a.m. – 10:55 a.m. – Hon. Cale J. Bradford
10:55 a.m. – 11:15 a.m. – Ms. Julia Church Kozicki
(Break)
11:30 a.m. – 11:50 a.m. – Hon. Elizabeth F. Tavitas
11:50 a.m. – 12:10 p.m. – Hon. Loretta H. Rush
(Break)
12:25 p.m. – Lunch and Deliberations

The applications, along with writing samples, transcripts and letters of recommendation are now available for review at the Indiana Supreme Court Law Library in room 316 of the State House. Redacted versions of the applications will be made available online sometime during the week of July 9th.

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Law - "Mixed reviews on book of new Indiana laws"

This South Bend Tribune editorial today highlights a number of the State's new laws.

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Indiana Law

Ind. Gov't. - FWJG editorial on "Surplus scrutiny"

The long editorial today in the Fort Wayne Journal Gazette begins:

The tax credit Indiana taxpayers will receive next year as a result of the state’s $2 billion surplus will be welcome relief for some, but all taxpayers should consider where it came from. The need for some families would be less if painful cuts in services hadn’t been made to create the surplus.

In announcing the budget news this week, Gov. Mitch Daniels couldn’t say how much of the money came from cuts in state agency spending versus growing state revenues. While it’s true that Indiana is seeing economic growth, it’s also a fact that agencies were directed to cut millions in spending.

The editorial then gives examples.

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Indiana Government

Ind. Courts - Delaware County public defender system

Larry Riley, an English prof at Ball State, wrote a column for the Muncie Star-Press about Delaware County government, including:

A week ago, I wrote about flack the local Public Defender Board was getting from its state counterpart, an Indiana commission that reimburses counties a portion of public defense costs provided certain state standards are met.

For all of 2011, Delaware County was reimbursed $408,000, or 40 percent of the million-dollar cost of public defenders and staff.

Delaware County was out of compliance last year on several counts, including not paying the chief public defender, Jack Quirk, enough in salary (the state wants his salary doubled).

Later last week, another issue facing the county got spelled out in a detailed letter from the state commission’s staff counsel.

Four public defenders this year already exceed the caseload limit. Caseload limits were established decades ago, and are outdated, but still used.

Each type of case — A, B, C, and D felonies — are given weights, as are appeals and juvenile cases, and when all weights each quarter for any given public defender add up to one full-time equivalency, that’s all they can handle.

Four pubic defenders exceeded their workload in the first quarter of 2012, and one actually had been over for the last quarter of 2011. That was Ron McShurley, who handles juvenile cases at the Youth Opportunity Center and files lots of appeals. (Unfit parents who lose custody of their children always want to appeal.)

Hence, all reimbursements have been “suspended until Delaware County come into compliance.”

The state told local officials that once “non-compliance has been cured,” a local official is welcome to attend the next quarterly meeting of the state commission and “request all monies previously held be disbursed to the county.”

The commission will meet in September and December.

Meanwhile, all reimbursement we were promised when County Commissioners hastily established the local public defender board and took oversight of public defenders from local judges is in limbo — and, one might surmise, jeopardy.

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Indiana Courts

Courts - "Because if you put [yourself] in his position ... what's he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement?"

Nina Totenberg of NPR has two stories worth reading/hearing this morning, one on the Supreme Court term and the other featuring the 7th Circuit's Judge Richard Posner. The heading to this post is a quote from Judge Posner, featured in both stories.

Posted by Marcia Oddi on Friday, July 06, 2012
Posted to Courts in general

Thursday, July 05, 2012

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

In Nipponkoa Ins. v. Atlas Van Lines (SD Ind., Young), an 11-page opinion, Circuit Judge Wood writes:

This case involves the application of the Carmack Amendment, 49 U.S.C. § 14706, to a set of complicated contractual arrangements among a shipper, a carrier, and two entities that facilitated the shipment. As is true in many contract cases that wind up in litigation, the fundamental question is who must ultimately bear the loss when multiple actors play a role in an arrangement. While we appreciate the efforts made by both the parties and the district court to sort this out, we conclude that further proceedings are necessary. A final answer must await further development of the details of the shipping contract and the nature of the relationship among the four companies. Summary judgment was therefore inappropriate. * * *

In sum, even if the ACS-Atlas contract or the bill of lading provides a shipper with a choice of at least two levels of liability limitation, as Hughes requires, it is not clear that TAMS was bound by either contract. Further development of the record is necessary on both of the points we have identified. We therefore REVERSE the district court’s grant of summary judgment in Atlas’s favor and REMAND for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Thursday, July 05, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Andrew Joseph Wortkoetter v. Amy Jean Wortkoetter , an 8-page opinion, Judge Bailey concludes:

The dissolution court did not abuse its discretion when it included Husband’s IRA in the marital estate and then equally divided that estate. Likewise, the court did not abuse its discretion in denying Husband’s motion to correct error on that basis. Because the court’s order does not clearly state the judgment amount in imperative form, we order correction of the judgment to show an award of $8,107 in favor of Wife and instruct the trial court to amend its records accordingly.
In Brenda Stutz v. State of Indiana , a 7-page opinion, Judge Darden writes:
Issue: Whether the trial court improperly entered a judgment of conviction for operating a vehicle with a blood-alcohol content of at least .15 percent. * * *

Given the amendments to the applicable statutes, we cannot say that Sering applies. Clearly, the classification of operating a vehicle with a BAC of at least .15 percent as a class A misdemeanor and that of driving while intoxicated as a class C misdemeanor is evidence that the legislature has determined that the former offense constitutes a greater risk than the latter offense. We therefore conclude that class A misdemeanor operating a vehicle with a BAC of at least .15 percent is not a lesser included offense of class C misdemeanor operating while intoxicated. Cf. Rouse v. State, 525 N.E.2d 1278, 1281 (Ind. Ct. App. 1988) (finding that operating a motor vehicle with a BAC of at least .10 percent or more, causing death, could not be the lesser included offense of driving while intoxicated, causing death, because “both offenses are Class C felonies, thus, indicating a legislative determination that the offenses are of equal harm or risk of harm”), trans. denied. We therefore affirm the trial court’s entry of a judgment of conviction for Count 2, operating a vehicle with a BAC of at least .15 percent, a class A misdemeanor. We, however, remand with instructions to the trial court to vacate Stutz’s conviction for operating while intoxicated as a Class C misdemeanor, as it should be merged with the conviction for operating a vehicle with a BAC of at least .15 percent; furthermore, the abstract of judgment shall be amended accordingly.

NFP civil opinions today (2):

In the Matter of the Involuntary Term. of the Parent-Child Rel. of A.L.W., and K.B. v. Indiana Dept. of Child Services (NFP)

S.C. v. Review Board of the Indiana Department of Workforce Development and M., Inc. (NFP)

NFP criminal opinions today (6):

In State of Indiana v. Donna Stiltz (NFP), a 5-page opinion, Judge Crone writes:

Donna Stiltz entered a plea agreement to resolve charges of invasion of privacy, resisting law enforcement, battery on a law enforcement officer, disorderly conduct, and violation of probation. The agreement stated that she would serve an aggregate sentence of eight months’ incarceration. After serving one month, she submitted a letter to the trial court requesting a modification of sentence, which was granted. On appeal, the State challenges the authority of the trial court to modify her sentence. We reverse and remand. * * *

On January 10, 2012, Stiltz submitted a letter to the court requesting a modification of her sentence to care for her ill son. At a hearing on January 17, 2012, over the State’s objection, the trial court granted the modification and reduced her sentence to time served. The State appealed. * * *

Here Stiltz’s plea agreement specified a total executed sentence of eight months. Stiltz had served only one month of her sentence. Both the plea agreement and the trial court’s order specifically prohibited the suspension of any part of the sentence, and the plea agreement prohibited Stiltz from seeking modification of her sentence pursuant to Indiana Code Section 35-38-1-17 or any other basis. The plea agreement contained no provisions allowing the trial court to modify the terms of the agreement once the agreement was accepted. The trial court accepted the terms of the agreement and must be bound by those terms. Although we empathize with the trial court’s rationale for granting Stiltz’s request for sentence modification, the law is settled on the issue. Accordingly, we conclude that the State has shown prima facie error. Therefore, we reverse and remand with instructions to reinstate Stiltz’s sentence in accordance with the plea agreement.

Logan Wetzel v. State of Indiana (NFP)

William Joseph VanHorn v. State of Indiana (NFP)

George Walker v. State of Indiana (NFP)

David L. Lacey v. State of Indiana (NFP)

In the Matter of C.R. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 05, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Jud. Qualifications Comm. publicly admonishes St. Joseph County Magistrate Barbara Johnston

The Judicial Qualifications Commission has issued a public admonition against St. Joseph County Magistrate Barbara Johnston. Here is a copy of the 4-page document, dated July 5th. Here is the news release. Some quotes:

The admonition (attached) is the result of an August 2011 hearing in which Magistrate Johnston did not ensure all parties were heard by the court in a child custody matter.

Magistrate Johnston admits her actions violate the Indiana Code of Judicial Conduct and trial court rules designed to ensure basic due process. The Commission determined that formal disciplinary charges are warranted against her. However, Supreme Court rules allow for the judicial officer and the Commission to agree to a public admonition. * * *

[T]he mother died. The mother’s parents (the child’s grandparents) filed a motion asking for custody of the child. The grandparents and their attorney did not provide the child’s father with a copy of the motion. The family had been in contact with the father about the mother’s death—but did not notify him of the hearing and the fact they wanted custody of the child. Magistrate Johnston set a hearing date.

The father did not appear at the hearing. No effort was made to check the contact information the father had on file with the clerk’s office and use that contact information to notify him of the motion and the hearing date. Instead, Magistrate Johnston held the hearing and heard testimony on the custody motion without the father’s presence.

Magistrate Johnston granted an ex parte change of custody order to the grandparents, issued an order to change support payments, and allowed the grandparents to take the child to Kenya. * * *

Magistrate Johnson granted the grandparents’ request for custody and for support—without ever hearing from the father or giving him an opportunity to be heard.

When the father later learned of the court order, he immediately hired an attorney and was granted custody of his child several months later.

Posted by Marcia Oddi on Thursday, July 05, 2012
Posted to Indiana Courts

Ind. Gov't. - More on "Prison college a good investment in rehabilitation"

Updating this ILB entry from June 17th, State Impact Indiana had a long report by Kyle Stokes on July 4th headed "What Indiana Will Miss With The State Prisons’ College Programs Gone." It begins:

A program allowing Indiana prisoners to earn college degrees from behind bars produced its last class of graduates this past year.

Lawmakers barred offenders from receiving state scholarships in 2011, cutting off the primary source of funding for Indiana’s Correctional Education Program.

Once one of the largest initiatives of its kind in the nation, the educational program filled a critical need. Research has long shown offenders with post-secondary education are much less likely to return to prison.

Corrections officials say they’ll now focus on more “realistic” alternatives, such as the job-training and certification programs the prisons already offer. But others say vocational education isn’t enough.

Posted by Marcia Oddi on Thursday, July 05, 2012
Posted to Indiana Government

Ind. Gov't. - DLGF Publishes an Assessment Appeals Flowchart

Thanks to the Indiana Tax Reporter for the link.

Posted by Marcia Oddi on Thursday, July 05, 2012
Posted to Indiana Government

Ind. Decisions - Supreme Court appoints temporary replacement for suspended LaPorte Co. prosecutor [Corrected]

On June 20th the Supreme Court posted In re Szilagyi, suspending Robert C. Szilagyi from the practice of law for a period of sixty days, beginning August 1, 2012.

Mr. Szilagyi is the Lake LaPorte County Prosecutor. In this Order filed June 29th the Supreme Court appoints a temporary prosecutor:

This Court notes that a county prosecuting attorney's duties are concerned with representing the State of Indiana and that performance of these duties requires that the prosecuting attorney be a practicing member of the bar of this state. See State ex rel. Indiana State Bar Association v. Moritz, 244 Ind. 156, 191 N.E.2d 21 (1963). Accordingly, Respondent's suspension from the practice of law renders him disqualified from performing the duties of a prosecuting attorney. See Matter of Catt, 672 N.E.2d 410 (Ind. 1996). Respondent therefore must be suspended from the performance of his duties as prosecuting attorney during his suspension from the practice of law, and his pay for services as prosecuting attorney should be discontinued during the suspension.

Because Respondent's suspension from the practice of law will create a vacancy in the office of prosecuting attorney, we find that the continued orderly administration of justice requires the appointment of a temporary prosecuting attorney to carry out the duties of the office of prosecuting attorney of LaPorte County.

This Court has been advised that Robert D. Neary, a member of the bar of this state who is currently serving as chief deputy prosecutor for LaPorte County, is able to assume the duties of prosecuting attorney of LaPorte County, effective August 1, 2012, and continuing during the period of Respondent's suspension.

IT IS THEREFORE ORDERED that Robert D. Neary is appointed to serve as full-time prosecuting attorney of LaPorte County, effective August 1, 2012, through the end of Respondent's suspension. In addition, until the effective date of Respondent's suspension, Robert D. Neary is authorized to take any actions necessary to initiate and prosecute new legal matters that Respondent is barred from taking under the terms of this Court's June 20, 2012, order.
This Order shall be sufficient authority for Robert D. Neary to carry out the regular functions and duties of the office as defined by the laws of this state, and to be compensated for him services at the rate and manner equal to that paid a duly elected full-time prosecuting attorney of LaPorte County during the time of Respondent's suspension.

IT IS FURTHER ORDERED that during the period of Respondent's suspension, all payments to him for services as prosecuting attorney shall be discontinued.

Here are some earlier entries on Mr. Szilagyi .

Posted by Marcia Oddi on Thursday, July 05, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "All attorney disciplinary proceedings pending against Respondent William F. Conour are hereby dismissed as moot because of Respondent’s resignation from the bar of this State"

The Supreme Court has posted this Order, filed June 29th. Some quotes:

A "Verified Complaint for Disciplinary Action" against Respondent was filed on May 24, 2012. Respondent has now tendered to this Court a resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED that all attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation from the bar of this State, subject to consideration of pending allegations in the event there is a petition for reinstatement.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner's remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

Here are earlier ILB entries on Mr. Conour, including "Long-time Indiana Super Lawyer allegedly misappropriated more than $2.5 million in client funds for his own use," found here.

This entry
from March 17, 2010 titled "Chief Justice John G. Roberts to speak at IU School of Law - Indianapolis," includes this (ILB emphasis):
There will be limited overflow seating in room 385 of Inlow Hall at 530 West New York Street and a reception in the Conour Atrium after the lecture.

Posted by Marcia Oddi on Thursday, July 05, 2012
Posted to Indiana Law

Wednesday, July 04, 2012

Ind. Decisions - Still more on: Defense attorney and former Ex. Dir. of Lobby Registration Commission suspended

"Suspended Carmel Attorney Responds To Client Complaints" is the headline of another long WRTV6 story on the Supreme Court disciplinary action, reported this evening by Kara Kenney, following on yesterday's story.

Posted by Marcia Oddi on Wednesday, July 04, 2012
Posted to Ind. Sup.Ct. Decisions

Tuesday, July 03, 2012

Ind. Decisions - More on: Defense attorney and former Ex. Dir. of Lobby Registration Commission suspended

"Carmel Attorney Suspended By Supreme Court: Clients Want Defense Attorney Sarah Nagy Disbarred" is the headline of this long WRTV6 story this evening, with separate video by Kara Kenney, that begins:

CARMEL, Ind. -- The Indiana Supreme Court has suspended Carmel defense attorney Sarah Nagy for not paying her attorney registration fees, not complying with her continuing legal education, as well as disability.

She cannot practice law in the state, but in the future, Nagy can apply for reinstatement. That is upsetting to some of her clients who say they paid her money, but their cases are still unresolved years later.

"She doesn't answer emails or phone calls, she's failed to appear in court," said Grace Moore, who said she hired Nagy in 2006 and paid her $25,000 to handle her son's post-conviction relief case. "It's very disheartening. It doesn't help my trust in attorneys at all."
Court records show Nagy told th
e Indiana Supreme Court Disciplinary Commission she had been disabled with lupus complications since August 2011, and had been unable to complete legal work for her clients since spring 2011.

But some clients of Nagy's told Call 6 Investigator Kara Kenney they had problems with Nagy years before that.

Posted by Marcia Oddi on Tuesday, July 03, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Defense attorney and former Ex. Dir. of Lobby Registration Commission suspended

In the Matter of Sarah L. Nagy is a June 28th order of the Supreme Court:

Being duly advised, the Court GRANTS the Commission's petition and ORDERS that Respondent be suspended from the practice of law in this state, effective immediately, due to disability, pursuant to Admission and Discipline Rule 23(25). Respondent may petition for reinstatement upon termination of the disability pursuant to Admission and Discipline Rule 23(4) and (18).
Here are earlier ILB entries on Ms. Nagy.

Posted by Marcia Oddi on Tuesday, July 03, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - One of the NFP appeals today reeks to high heaven!

The opinion by Judge Najam is in the case of Scott D. Wampler, Jr. v. State of Indiana (NFP). The Court's first footnote:

1 We note that the record in this case emits an unpleasant odor consistent with that of cigarette or pipe smoke that is apparent, offensive, and consistent. We kindly request all those who prepare and file the briefs and record on appeal to avoid such contamination of submissions on appeal in the future.

Posted by Marcia Oddi on Tuesday, July 03, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)

For publication opinions today (5):

In In Re: The Matter of the Paternity of S.C.: K.C. (Appellant), and C.C. (Appellee), and B.H. (Appellee-Intervenor), a 5-page, 2-1 petition for rehearing, Judge Friedlander concludes:

In granting the petition for rehearing, we reiterate the points we made in our original opinion – the Hancock County order vacating its previous paternity order was not premised upon the adequacy of service of process upon Mother of B.H.’s Fayette County petition. It was not premised upon the ultimate viability of the Fayette County paternity proceeding instituted by B.H. It was not premised upon the admissibility of the DNA tests performed upon Mother and S.C., nor upon the Fayette Circuit Court ordering that the DNA test be taken. Rather, it is enough that the record supports the Hancock Circuit Court’s finding that a paternity action was indeed filed and pending in Fayette County and that Mother knew of the action when she participated in the Hancock County action. It is enough that there was evidence to support the Hancock Circuit Court’s finding that Mother did not inform the Hancock Circuit Court of the pending Fayette County paternity proceeding. And, it is enough that there was evidence to support the finding that Mother knew there was a reasonable possibility that B.H. was S.C.’s biological father, regardless of any defects or deficiencies in B.H.’s legal efforts to establish his paternity as a matter of law.

Therefore, we grant the petition for rehearing and reaffirm our original opinion subject to the comments herein.

MATHIAS, J., concurs.
RILEY, J., dissents without separate opinion.

In Julie Winslow v. Larry D. Fifer , a 12-page opinion, Judge Baker concludes:
Mother and Father have been blessed with two daughters who excel academically. Indeed, both have received scholarships such that their college expenses are minimal. Nevertheless, although Mother has the financial means, she has chosen litigation over paying her proportionate share of these minimal expenses or even communicating with her children and Father. No one wins in such situations, and we strongly recommend that Mother consider this in the future. The judgment of the trial court is affirmed.
In James Mies and Janice Mies v. Steuben County Board of Zoning Appeals, a 23-page opinion, Judge Baker writes:
We conclude that the newly-constructed deck and stairs lost their nonconforming status under the local zoning laws but that the Board lacked the statutory authority to impose a condition on a variance which rendered their entire decision a legal nullity.
In Wells Fargo Bank, N.A., f/k/a Wachovia Commercial Mortgage, Inc. v. PNC Bank, N.A., f/k/a National City Bank of Indiana, a 10-page opinion, Judge Najam concludes:
In sum, National City and Phillips are in privity for purposes of the instant action, and the issues are the same for purposes of res judicata. Wells Fargo does not dispute that the other two elements of claim preclusion are satisfied here. The trial court did not err when it concluded that National City is entitled to summary judgment under the doctrine of res judicata.Affirmed.
In Ronald B. Hawkins v. State of Indiana , a 14-page, 201 opinion, Judge Bradford concludes:
Hawkins’s due process rights were not violated when he was tried in absentia and without counsel. Hawkins has waived for appellate review his argument that it was improper to sentence him via videoconference. The trial court did not abuse its discretion in imposing consecutive sentences. The trial court, however, erred in entering both convictions as Class C felonies. We remand with instructions to reduce one of Hawkins’s Class C felony non-support of a dependent child convictions to a Class D felony and impose the advisory sentence, to be served consecutive to the sentence for the remaining Class C felony, for an aggregate sentence of five and one-half years. See Ind. Code §§ 35-50-2-6(a); -7(a). We affirm the judgment of the trial court in part, reverse in part, and remand with instructions.

CRONE, J., concurs.
VAIDIK, J., concurs in part and dissents in part with opinion. [which begins]I respectfully dissent from the majority’s conclusion that Hawkins knowingly, intelligently, and voluntarily waived his right to counsel. Because I believe that the facts in this case are readily distinguishable from the facts in Jackson and because of the importance of an attorney for a fair proceeding, I would reverse the trial court on this issue.

NFP civil opinions today (8):

Leonard Dewitt v. Unsafe Building Department, City of Greendale, Indiana, Doug Hedrick, et al. (NFP)

Paul Roell v. American Senior Communities, LLP d/b/a East Lake Nursing & Rehabilitation Center, and Harry Scribner (NFP)

Richard B. Gonon v. Wright & Lerch, David M. Wright, Stephen J. Lerch, William C. Butler, and Stephen J. Shumlas (NFP)

Aaron Isby v. Lee Hoefling, David Gilstrap, James Basinger, Roger Randall, Jr., Kevin Ewers, Edwin Buss, and David Sloan (NFP)

Jonathan S. Gardiner v. Review Board of the Indiana Dept. of Workforce Development, and Audio Video International Limited (NFP)

Jack D. Tiller v. Review Board of the Indiana Dept. of Workforce Development, IDWD U.I. Claims Adjudication, and the Town of Walkerton (NFP)

In the Matter of the Involuntary Commitment of A.B. (NFP)

In the Matter of the Involuntary Term. of the Parent-Child Rel. of S.W.; H.L. v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (11):

Stephen R. Harvey, Jr. v. State of Indiana (NFP)

Antonio Martell Twiggs v. State of Indiana (NFP)

Kevin Cortez Brown v. State of Indiana (NFP)

Darryl Shepherd v. State of Indiana (NFP)

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

Kyle E. Bowers v. State of Indiana (NFP)

Antwuan Brown v. State of Indiana (NFP)

Scott D. Wampler, Jr. v. State of Indiana (NFP)

Holly Fuhrman v. State of Indiana (NFP)

Dontay Foster v. State of Indiana (NFP)

Ronnie Smith v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 03, 2012
Posted to Ind. App.Ct. Decisions

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

Supplementing this ILB entry from June 29th, here is the online information we could find on the new list of applicants. Unfortunately, most county judges do not have webpages. Because half of the applicants this time (11/22) have previously applied for the Supreme Court or Court of Appeals within the past two years, there is additional information on those 11 accessible from the ILB via a search. Those applicants are identified by an asterisk after their name

Posted by Marcia Oddi on Tuesday, July 03, 2012
Posted to Vacancy #2 on Supreme Court 2012

Monday, July 02, 2012

Ind. Gov't. - Not your father's Driver's Manual

The complete Indiana BMV Drivers' Manual, updated as of July 1, 2012, is available here.

For items that weren't in your father's Driver's Manual, see for example Chapter Five - Safe Vehicle Operation, for sections on Bicycle Lanes (p. 71) and on Roundabouts (p. 56).

Unfortunately, the cover and introductory pages of the Manual are not posted online so the ILB can't see if there is a disclaimer.

Recall this 2011 COA opinion by Sr. Judge Sullivan, Ken Gunn v. State (4th case), containing this footnote:

2. The State cites the Indiana driver's manual, which states, “To turn left, be in the far left lane for your direction of travel.” Driver's Manual, Chapter 5, 54 (2011), http://www.in.gov/bmv/files/Drivers_Manual_Chapter_5.pdf (last visited Oct. 5, 2011). Though such advice may constitute wise policy, it is not a law of this state.

Posted by Marcia Oddi on Monday, July 02, 2012
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending June 29, 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 29, 2012. It is two pages (and 22 cases) long.

Two transfers were granted last week:

In addition, two transfers previously granted were vacated and denied:Both of these cases concern child support. See the detailed June 30th ILB entry for more information.

Posted by Marcia Oddi on Monday, July 02, 2012
Posted to Indiana Transfer Lists

Ind. Gov't. - Indiana Dept. of Child Services elected to repurpose some of its reversionary funds for fiscal year that ended June 30

From a long front-page story today in the Indianapolis Star, reported by Tim Evans:

Over the past three years, the Indiana Department of Child Services returned to the state treasury more than $300 million that officials determined the agency did not need.

That practice has been strongly criticized by advocates who believe such money should instead be used to help troubled children and families.

Now, DCS has decided to do just that.

Officials said they will redirect more than $37 million in excess funds from the agency's 2012 budget to expand prevention and family-support services, programs expected to assist more than 11,000 additional families annually over the next three years. * * *

Last year, DCS returned $103 million. This year, while DCS is redirecting much of its 2012 surplus to programs and services, the agency still will return about $16 million when the fiscal year closes June 30. * * *

A legislative summer study committee is preparing to look into concerns about DCS' performance. The DCS decision to redirect the money was announced Wednesday. * * *

State Rep. Gail Riecken, D-Evansville, said the new and expanded services that DCS plans to fund with the budget reserves are the kinds of things many advocates across Indiana have been seeking. But she also is concerned that the timing may be an attempt to shift the focus of the summer study committee, and she wonders whether DCS couldn't have found a use for other money the agency is returning to the treasury this year.

"It is the right thing to do," Riecken said of the reinvestment plan, "but what about the other $16 million?"

Riecken said the programs announced Wednesday "really don't address the core issues we are concerned about, such as the centralized hotline, the need for more help for kids with mental health issues, and shorter stays in treatment."

"I'm concerned this is timed to take the focus off of those issues," said Riecken, who will serve on the study committee, "and I hope it's not indicative of what's going to happen in the committee."

An editorial in the Fort Wayne Journal Gazette yesterday was headed "Too little, too late for children." It began:
While it’s welcome news that the state’s most vulnerable residents won’t be subjected to another massive budget cut, don’t be fooled by the Indiana Department of Child Services’ announcement that it will spend $37.8 million on child-protection programs.

The three-year spending plan represents no new funding. The only good news, in fact, is that the agency will cut just $16 million instead of the nearly $104 million cut in the last fiscal year.

DCS, under fire for the deaths of more than two dozen children who died after their families came in contact with the protection agency, pitched the reallocation of its general fund dollars as support for “new and enhanced services for children and families.” About a third of the money comes from the federal government.

Posted by Marcia Oddi on Monday, July 02, 2012
Posted to Indiana Government

Ind. Gov't. - Chicago in dispute with parking meter company

A few quotes from this story by Hal Dardick of the Chicago Tribune:

Mayor Rahm Emanuel and the company running Chicago's parking meter system are at loggerheads in a dispute that threatens to drain millions of dollars from city coffers, according to correspondence that sheds light on the tense relationship between the city and company executives.

Chicago Parking Meters LLC has canceled further meetings with City Hall and is threatening to go to mediation over $14.2 million the company says it's owed for out-of-service parking spots. City officials want more time to analyze data before making any payment. * * *

Whatever the resolution, the city and company will have to find a way to get along because Emanuel is just the first of many mayors who will have to live with the parking meter contract. In late 2008, Daley got aldermen to quickly approve the 75-year deal for a one-time payment of $1.15 billion.

A botched transition to the private company, increasing meter rates and analyses concluding that the city was shortchanged soured the public on the deal and helped send Daley's approval rating to a new low before his retirement.

Daley and aldermen then spent nearly all of the money to keep the cash-strapped city afloat. By the time Emanuel took over last year, only $125 million of the lease payment remained.

The story points out an issue we don't have in Indianapolis:
Looking ahead, the issue relating to the disabled parking dispute problem is expected to diminish because of new state legislation. Starting in 2014, it will require disabled parkers to feed meters unless they are in wheelchairs or otherwise physically unable to complete the transaction.

Posted by Marcia Oddi on Monday, July 02, 2012
Posted to Indiana Government

Vacancy #2 on Supreme Court 2012 - New, Very Broad Question on Supreme Court Application

The following commentary is from Indiana University Robert H. McKinney School of Law Professor Joel Schumm.

New, Very Broad Question on Supreme Court Application

The following question was added to the application form for those applying for the most recent vacancy on the Indiana Supreme Court:

“List any memberships or affiliations you have had with organizations that regularly seek to influence legislation or that appear as amicus curiae in cases before the Indiana appellate courts.”
This question is much broader than and somewhat redundant of existing questions, such as “list up to five legislative drafts or court rules you have written or to which you have contributed significantly” and “[l]ist any memberships or offices you have held in professional organizations, including dates and descriptions of the purposes of the organizations and of your involvement.”

When applications are posted next week the responses should be interesting. This 58-page “2012 Employer Lobbyist Registration List” provides a snapshot of the hundreds of organizations that seek to influence legislation, although there may be disagreement about those that do so “regularly.” The list includes the Indiana State Bar Association and Indiana Judges Association, to which many applicants belong but may not have considered in answering the question. And it is unclear how responses to this question will provide useful and relevant information about an applicant’s qualifications to serve as an Indiana Supreme Court justice.

The second part of the question is even broader. Exclusion of the adverb “regularly” suggests required disclosure of affiliations with groups that appear as amicus curiae even occasionally. A quick Lexis search of Indiana Supreme Court cases decided in the past two years yields a long list of groups who filed amici curiae briefs that were listed at the top of the Court’s opinion. However, many more amicus briefs were filed in the past two year alone when one includes those filed in Court of Appeals’ cases and in Indiana Supreme Court cases where transfer was denied. Because the brief database on Westlaw includes only selective briefs, it would be very difficult to compile such a list.

Civil/Tax Cases

DEFENSE TRIAL COUNSEL OF INDIANA (3)
INSURANCE INSTITUTE OF INDIANA (3)
INDIANA ASSOCIATION OF CITIES & TOWNS AND INDIANA MUNICIPAL LAWYERS ASSOCIATION (3)
INDIANA TRIAL LAWYERS ASSOCIATION (3)
COMPLEX INSURANCE CLAIMS LITIGATION ASSOCIATION (2)
INDIANA CHAMBER OF COMMERCE, INC (2)
INDIANA LEGAL FOUNDATION (2)
INDIANA PETROLEUM MARKETERS AND CONVENIENCE STORES ASS'N, INC (2)
INDIANA MANUFACTURERS ASSOCIATION
ASS'N, NAT'L SOLID WASTE MGMT. ASS'N
INDIANA STATE MEDICAL ASSOCIATION
PRODUCT LIABILITY ADVISORY COUNCIL
BOARD OF COMMISSIONERS OF THE COUNTY OF HAMILTON
CASINO ASSOCIATION OF INDIANA
COUNCIL ON STATE TAXATION
INDIANA LEGAL SERVICES
SAINT STANISLAUS CHURCH AND SCHOOL, THE TWIN CITY MINISTERIAL ALLIANCE, AND THE NORTHWEST INDIANA FEDERATION, F/K/A INTERFAITH FEDERATION
NEIGHBORS INCORPORATED OF HAMMOND, INDIANA, ST. CATHERINE HOSPITAL, INC., WORKFORCE DEVELOPMENT SERVICES, INC., CALUMET COLLEGE OF ST. JOSEPH, INC., JANELLE SCOTT, AND THE HON. WILLIAM H. HUDNUT

Criminal Cases

INDIANA PUBLIC DEFENDER (2)
INDIANA PUBLIC DEFENDER COUNCIL (2)
COALITION AGAINST DOMESTIC VIOLENCE, BATTERED WOMEN'S JUSTICE PROJECT - DOMESTIC ABUSE INTERVENTION PROGRAMS, INC., & INDIANA COALITION AGAINST, SEXUAL ASSAULT
NATIONAL: ASS'N OF SOCIAL WORKERS & NATIONAL, ASS'N OF SOCIAL WORKERS, INDIANA CHAPTER

The Barnes v. State rehearing opinion didn’t identify amici by name but one brief was filed by 71 Members of the General Assembly and another by a group of professors.

Posted by Marcia Oddi on Monday, July 02, 2012
Posted to Vacancy #2 on Supreme Court 2012

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

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

From Sunday, June July 1, 2012:

From Saturday, June 30, 2012:

From late afternoon Friday, June 29, 2012:

Posted by Marcia Oddi on Monday, July 02, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 7/9/12):

Webcasts of Supreme Court oral arguments are available here.


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

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

Wednesday, July 11

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, July 02, 2012
Posted to Upcoming Oral Arguments

Sunday, July 01, 2012

Law - "How Delaware Thrives as a Corporate Tax Haven"

A very long article on the front page of the Business Section of the Sunday NY Times, reported by Leslie Wayne. A few quotes:

In these troubled economic times, when many states are desperate for tax dollars, Delaware stands out in sharp relief. The First State, land of DuPont, broiler chickens and, as it happens, Vice President Joseph R. Biden Jr., increasingly resembles a freewheeling offshore haven, right on America’s shores. Officials in other states complain that Delaware’s cozy corporate setup robs their states of billions of tax dollars. Officials in the Cayman Islands, a favorite Caribbean haunt of secretive hedge funds, say Delaware is today playing faster and looser than the offshore jurisdictions that raise hackles in Washington.

And international bodies, most recently the World Bank, are increasingly pointing fingers at the state.

Of course, business — the legal kind — has been the business of Delaware since 1792, when the state established its Court of Chancery to handle business affairs. By the early 20th century, the state was writing friendly corporate and tax laws to lure companies from New York, New Jersey and elsewhere. Most of the businesses incorporated here are legitimate and many are using all legal means to reduce their tax bills — something that most stockholders applaud. * * *

It is also a great place to reduce a tax bill. Delaware today regularly tops lists of domestic and foreign tax havens because it allows companies to lower their taxes in another state — for instance, the state in which they actually do business or have their headquarters — by shifting royalties and similar revenues to holding companies in Delaware, where they are not taxed. In tax circles, the arrangement is known as “the Delaware loophole.” Over the last decade, the Delaware loophole has enabled corporations to reduce the taxes paid to other states by an estimated $9.5 billion.

Posted by Marcia Oddi on Sunday, July 01, 2012
Posted to General Law Related

Ind. Gov't. - Option not to expand Medicaid could leave 290,000 Hoosiers uncovered

According to this lengthy, must-read story (because it presents the issues clearly and comprehensively) by JK Wall of the IBJ:

The health reform law pledged Congress to pay the entire cost of the Medicaid expansion from 2014 to 2016, and then relied on states to ramp up to pay 10 percent of the program by 2020.

If Indiana refuses to expand its Medicaid program as called for under the law, all adults and children with household incomes above the federal poverty limit but not higher than 138 percent of the poverty limit will still be eligible for government subsidies to buy private health insurance.

But it is parents with incomes below 100 percent of the poverty limit and above 24 percent of the limit—as well as all childless adults below the poverty limit—that would be left out if Indiana did not expand its Medicaid program.

For hospitals, those 290,000 Hoosiers are the most likely patients to not pay their bills. And while Medicaid’s payments aren’t great—only about 60 percent of hospitals’ costs—getting 60 cents on the dollar is far better for hospitals than the 10 cents or less hospitals typically collect on unpaid bills, known as bad debt.

Also, most hospitals would write off care provided to patients in poverty as charity care, collecting nothing.

“Clearly, for our industry, we would rather see the coverage in Medicaid,” [Doug Leonard, CEO of the Indiana Hospital Association] said.

[More] The public radio show, Sound Medicine, produced by the Indiana University School of Medicine, today looks at the Affordable Health Care Act. Listen here.

Posted by Marcia Oddi on Sunday, July 01, 2012
Posted to Indiana Government

Ind. Gov't. - "Attorney General Greg Zoeller publicly apologized to The Tribune last week"

Updating this ILB entry from June 27th, some quotes from a South Bend Tribune editorial today:

Indiana Attorney General Greg Zoeller publicly apologized to The Tribune last week for the legal appeal that led to The Tribune being temporarily forbidden to publish a significant story.

We very much appreciated his apology, though it should be noted that the unfortunate situation was precipitated not by Zoeller's office, but by attorneys for the state's Department of Child Services. It was they who filed a motion with the Indiana Court of Appeals that resulted in our newspaper temporarily being restrained from publishing an article, transcript and tape recording detailing a desperate call the DCS "hot line" in Indianapolis received about Tramelle Sturgis's family six months before 10-year-old Tramelle was tortured and murdered by his own father. * * *

And we were astonished that the appellate court granted DCS's motion that blocked our story, a clear "prior-restraint" abridgment of the newspaper's right to publish under the First Amendment to the U.S. Constitution.

It was Zoeller who recognized the untenability of the DCS's position, overruled its lawyers and moved to dismiss the appeal, allowing us to post and publish. * * *

The tragic saga of Tramelle Sturgis is a grim reminder of the need for openness and accountability in public agencies, even those that deal with sensitive issues such as child abuse and endangerment. Officials like Zoeller, who are willing to stand up for the public's right to know, give us all hope for the future.

Posted by Marcia Oddi on Sunday, July 01, 2012
Posted to Indiana Government

Ind. Courts - "Public officials need to operate in public"

From an editorial today in the Evansville Courier & Press:

The dispute's origin was a search warrant served two Thursdays ago at a house on East Powell in the Center City. Acting on tips, including one from a local television station, that anonymous posts on a Topix.com blog included a specific threat to [Evansville Police Chief Billy Bolin] and general warnings to all police, officials sought the computer IP address that they believed would identify the perpetrator.

They took their information to the prosecutor's office, which helped draft an affidavit requesting a search warrant. They took the warrant to the judge, who signed off. And in the end, they sent the SWAT team to the address, breaking a window and unlocked storm door, tossing in what's described as a "stun grenade," and handcuffing an 18-year-old Signature School student and her 60-year-old grandmother. The problem: Neither had anything to do with the threats.

Wondering what warranted the warrant, we requested — as specified under Indiana law — a copy of the warrant and affidavit. We were refused. The warrant was sealed, we were told, though it wasn't (and even if it had been, became unsealed by law once it was returned to the clerk's office).

Posted by Marcia Oddi on Sunday, July 01, 2012
Posted to Indiana Courts

Ind. Gov't. - "New roadblocks to public access: Counselor’s rulings seem to favor agencies"

A l-o-n-g editorial today in the Fort Wayne Journal Gazette, by Tracy Warner, editorial page editor. Some quotes:

Indiana law could not be more clear: With limited exceptions, government meetings and records are to be open to the public.

After seeing proof that too many local officials broke that law, Gov. Frank O’Bannon created the office of public access counselor, wanting to make sure state and local agencies were abiding by public access laws in fact and in spirit.

O’Bannon intended the access counselor’s office to be a place where people with a complaint about access to meetings or records could go for answers and assistance in opening the doors of government.

The law specifically requires that its provisions be liberally construed. As former Public Access Counselor Karen Davis said, “any doubt, you resolve in favor of openness.”

But in the 14 years since O’Bannon created the office, the scales seem to have tilted back in favor of the government, with officials seeking to use the legal exceptions whenever possible, and the public access counselor too often supporting them.

“My general impression is that it has become more government friendly in the last few years than it has been,” said Andrew Downs, director of the Mike Downs Center for Indiana Politics at IPFW.

Julia Vaughn, policy director of Common Cause Indiana, agrees.

“Over the years, I think that trend has happened,” she said.

For his part, the current public access counselor, Joseph Hoage, said there is no favoritism toward government. “I come at it completely neutrally,” he said.

Still, the counselor’s recent formal opinion regarding Purdue University’s super-secret search for a new president sure seemed to be pro-government and anti-public access. * * *

O’Bannon created the office in 1998 after seven Indiana newspapers documented widespread violation of public access laws. O’Bannon, whose family owns the Corydon Democrat, also appointed a task force on public access, saying, “The people of Indiana have a right to know what’s going on in their local and state governments.”

O’Bannon tapped Anne [Mullin] O’Connor, who had worked in the attorney general’s office and as a lawyer for other state agencies, to become the first public access counselor.

Though journalists have made frequent use of the office, everyday Hoosiers have contacted it with questions and complaints far more often than reporters.

“When the office was formed, it was thought to be a good place for the media to turn,” Hoage said. “It’s interesting that 60 percent of all of our contacts come from the public and 30 percent from the (government) agencies.”

One advantage of the office was that it gave people who were denied records an intermediate – and no-cost – step short of filing a lawsuit. Local officials are often willing to abide by the access counselor’s opinion, forgoing the need for citizens either to drop the matter or incur the expense and time of going to court. When a government agency ignores the counselor’s finding that they erred in denying access, if the person complaining sues and wins, he can demand the agency pay legal fees.

And Hoage believes the office continues to serve the public well by performing that service.

O’Connor developed a reputation for fairness and neutrality as she frequently found no violation of the law occurred but also identified a number of occasions when it did. She even ruled against the Noble County prosecutor in one complaint. * * *

O’Connor, the first access counselor, held the post about 4 1/2 years. She was replaced by Michael Hurst, who served a short time before leaving for another state job, and Gov. Joe Kernan appointed Karen Davis to fulfill the remainder of the access counselor’s term. When the term expired, Daniels replaced her in 2007. In the past five years, Daniels has appointed three counselors, two of whom left to work for the Department of Education.

“I think part of the problem is there hasn’t been a lot of sticking around in that office,” said Common Cause’s Vaughn. “I sense that it’s become a place for people in the government to kind of sit around for a while and then go somewhere else” in state government, she added. “It’s hard to go somewhere else if you’ve ruled against a state agency.” * * *

Despite some disappointing opinions, the access counselor’s office still performs a good public service. The counselor works to educate both government officials and the public about the law, though some government officials seem to leave seminars focusing more on how to use the exceptions to keep information secret rather than emphasize openness, contrary to O’Bannon’s goal for the office.

The access counselor’s involvement often results in information being released, sometimes even before an official opinion is issued.

“They’re effective, and I think they follow the law,” said Daniel Byron, an Indianapolis attorney who is on the board of the Indiana Coalition for Open Government. “Their job is to answer questions, and I think they do a good job of it.” * * *

“I think for the most part it works exactly the way it was supposed to,” said Davis, whose work in the office was well regarded. Davis recalled frequent interactions with government officials, some of whom wanted to prevent access. “Most of the time, you could persuade them as to the right thing to do,” she said.

One problem facing the office is resources. The budget has essentially been flat since 1998. While O’Connor was able to hire a second lawyer to assist in running the office, the budget supports only the counselor and a part-time clerical worker, a position that is now open.

Plus, the counselor is limited because Indiana law does include a number of exceptions, ones that government officials are increasingly aware they can use.

ILB: On that last point, see this June 29th entry in the IndyStar's blog, StarWatch, headed "Public records watch: State agencies use diary exemption to deny Star request." IDEM has also claimed this exception in the past. The IEDC is applying it to e-mails.

Posted by Marcia Oddi on Sunday, July 01, 2012
Posted to Indiana Government

Ind. Decisions - "COA decision may affect parents, children with mental illness"

The May 22nd COA opinion in In the Matter of V.H.; J.H. v. Indiana Dept. of Child Services is the subject of a story today in the NWI Times, reported by Marisa Kwiatkowski.

Here is how the opinion itself begins:

Here, a single mother of two teenage daughters was faced with a situation that is, unfortunately, not that uncommon to many parents of teenagers. On two occasions, the mother’s sixteen-year-old daughter, who outweighed her by about thirty pounds, became physically aggressive with her during an argument. To diffuse the situation, the mother called the police, who then reported the incidents to the Department of Child Services (DCS). The DCS investigated, and although it was determined that the daughter had been the aggressor in both incidents, the DCS filed a petition alleging that the daughter was a Child in Need of Services (CHINS) because of the mother’s failure to provide her with necessary care. The juvenile court granted this petition and ordered the mother to participate in services that were unrelated to the CHINS adjudication. We hold that the adjudication and the participation decree are erroneous.
Here is a quote from a worth reviewing May 20th entry quoting a story by the same reporter relating to a Morgan County decision:
A Times investigation published earlier this month found families throughout the state struggling to find services for children with severe mental illnesses or disabilities. When all other efforts fail, those families are told to let DCS file a petition for child in need of services 1, known as CHINS 1. Doing so results in parents claiming they neglected their children.
From today's lengthy story:
A recent Indiana Court of Appeals opinion could affect how judges handle cases involving some parents of children with mental illnesses or developmental disabilities.

[In May], the appellate court reversed a juvenile court judge's order that a Marion County parent had neglected her teenage daughter, identified in court documents as V.H. The woman had refused to pick up her daughter from an emergency shelter until the girl received counseling services, court records state.

"It is apparent that mother, who is a working single parent, was addressing V.H.'s behavioral issues," Judge John Baker wrote in the appellate court's unanimous opinion. "This is something for which we should applaud parents rather than condemn them through coercive action."

Legal experts say the court's opinion may affect the Indiana Department of Child Services' policy of substantiating neglect findings against some parents in order to help them obtain services for their children with mental illness or a developmental disability. * * *

In the case heard by the Court of Appeals, a Marion County woman had twice called police on her teenage daughter after the girl became physically aggressive. Police contacted DCS officials, who initiated an assessment on the family as required by state law.

After the second incident, the woman refused to bring her daughter home until the girl received counseling, court records state. The teenager had been diagnosed with oppositional defiant disorder.

DCS filed a petition alleging the girl was a child in need of services, also known as CHINS, because of the mother's failure to provide her with necessary care, court records state.

The juvenile court judge granted DCS' CHINS petition, which resulted in a finding of neglect against the mother. The Marion County woman was ordered to participate in services and pay DCS $25 per week for reimbursement of service costs, court records show.

The Court of Appeals overturned the judge's finding and order for the woman to participate in services. In the opinion, Baker referenced the Marion County woman's efforts to help her daughter.

Finally, here is a quote from another story by the NWI Times reporter, also quoted in the May entry:
But some prosecutors and public defenders said a better option for mentally ill or disabled children facing criminal proceedings would be having the Indiana DCS file a petition for child in need of services 6, or CHINS 6. The law states that is applicable when "the child substantially endangers his/her own health or the health of another individual."

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

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

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

See also this May 24th ILB entry headed ""Mentally ill kids caught in Catch-22: Prosecutors at odds with DCS over care"."

Posted by Marcia Oddi on Sunday, July 01, 2012
Posted to Ind. App.Ct. Decisions