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Friday, August 31, 2012

Courts - "Copy-and-Paste: the Role of Judicial Clerks in Shaping Precedent"

Thanks to the blog Circuit Splits for highlighting this new article, Copy-Paste Precedent.

Posted by Marcia Oddi on Friday, August 31, 2012
Posted to Courts in general

Courts - "Federal Judge Orders Ohio to Restore Weekend Early Voting in Ohio Weekend Before Election Day"

Another big election law ruling, re early voting in Ohio. See Rick Hasen's Election Law Blog post here.

Posted by Marcia Oddi on Friday, August 31, 2012
Posted to Courts in general

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

For publication opinions today (5):

In Seabrook, Dieckmann & Naville, Inc. v. Review Board of the Indiana Dept. of Workforce Development and Monica Hilbert, a 10-page opinion, Judge Brown writes:

Seabrook Dieckmann & Naville, Inc. appeals a decision by the Review Board of the Indiana Department of Workforce Development in favor of Monica Hilbert with respect to Employee’s claim for unemployment benefits. Employer raises several issues which we restate as whether the Board erred in concluding that Employee’s employment was not terminated for just cause. We reverse and remand. * * *

Based upon the evidence and testimony above and in the record before the ALJ and Board, we conclude that Employer showed that Employee breached a duty in connection with work which was reasonably owed Employer and that Employee’s conduct was of such a nature that a reasonable employee of Employer would understand that the conduct was a violation of a duty owed Employer. Accordingly, Employee was discharged for just cause.

In Patricia J. Barrow and Charlie Hanka v. City of Jeffersonville, Jeffersonville Planning and Zoning Dept., Jeffersonville Board of Zoning Appeal, Jeffersonville Building Comm., et al. , a 13-page opinion, Judge Kirsch writes:
The Plaintiffs raise several issues on appeal, which we consolidate and restate as:
I. Whether the statute of limitations established in Indiana Code section 34-11-2-6 is applicable to this case, specifically whether the Director of the City’s Planning and Zoning Department and the City’s Building Commissioner are public officers; and
II. Whether the Plaintiffs’ cause of action is barred by the statute of limitations.
We affirm in part, reverse in part, and remand.

The Plaintiffs argue that the trial court erred when it found Hicks and Segraves were public officers protected by the statute of limitations contained in Indiana Code section 34-11-2-6. They contend that Hicks and Segraves were not public officers because they did not meet the necessary criteria to be considered a public officer in Indiana. The Plaintiffs assert that the individual must serve in a position that is either elected or appointed, that such position must have sovereign power prescribed by law not contract, and that the individual must have taken an oath of office within thirty days of taking office. Because Hicks and Segraves did not meet any of these criteria, the Plaintiffs claim that the statute of limitations in Indiana Code section 34-11-2-6 does not apply to the facts of this case.

This case presents an issue of first impression in Indiana as we have found no Indiana authority defining public officer as it applies to Indiana Code section 34-11-2-6. Although both sides cite to Indiana cases and statutes defining public officer, the cited authorities do not specifically define the term public officer as it is used in Indiana Code section 34-11-2-6. * * *

Taking all of these authorities into consideration, we believe that in order for an individual to be a public officer under Indiana Code section 34-11-2-6, it must be determined that the individual holds a position for which duties are prescribed by law to serve a public purpose. We further conclude that the taking of an oath is not required to be a public officer, but the fact that one has been taken is a strong indicator of the position being one of a public officer. Having established a definition of public officer to be used when applying Indiana Code section 34-11-2-6, we now proceed to apply the definition to the present case. * * *

The trial court did not err when it determined that Hicks and Segraves were public officers and that the statute of limitations in Indiana Code section 34-11-2-6 was applicable to this case. * * *

Under Indiana Code section 34-11-2-6, an action against a public officer growing out of liability incurred by doing an act in the public officer’s capacity must be commenced within five years after the cause of action accrues. * * *

We conclude that the earliest date on which the Plaintiffs could have known of the injury on which they based their complaint was November 30, 2005, which is the date upon which their cause of action accrued. The statute of limitations began running on that date, and under Indiana Code section 34-11-2-6, their action was required to be commenced within five years of that date. The Plaintiffs filed their complaint on August 16, 2010, which was within five years of the date on which the cause of action accrued. Therefore, the Plaintiffs’ complaint was timely filed within the statute of limitations, and the trial court erred in granting summary judgment in favor of the Defendants.

In Wabash County Young Men's Christian Association, Inc. f/k/a Wabash Community Service v. Taylor M. Thompson, a minor, by next friends, Brian Thompson and Charlene Thompson, a 10-page opinion, Judge Brown concludes:
Sliding into second base, notwithstanding its rigidity, is an activity inherent in the nature of playing baseball or softball and we conclude that Taylor’s injury was derived from a risk inherent in the nature of the activity. See id. at 584-585 (observing that the plaintiff was injured when attempting to mount her horse and concluding that the plaintiff’s damages were inherent in the nature of the activity of horse riding and that the trial court did not err by granting summary judgment to the defendants). The release attached to the YMCA’s motion to dismiss indicated that the owner of the field would not be responsible for any injury or medical expenses “incurred while participating in practice or playing in a game.” Appellant’s Appendix at 12. Based upon the language in the release, we conclude that the YMCA met its burden of making a prima facie showing that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law and that the burden then shifted to Taylor who did not designate any evidence to show that an issue of material fact existed. Accordingly, we conclude that the trial court erred by denying the YMCA’s motion for summary judgment.
In Term. of the Parent-Child Rel. of: B.F. (Minor Child), and M.G. & S.F. (Father & Mother) v. The Indiana Dept. of Child Services, a 5-page opinion, Judge Riley writes:
[W]e find the dispositive issue to be: Whether the trial court committed fundamental error in terminating the Parents’ parental rights when the child was removed under a dispositional decree for less than six months. * * *

Here the petition only alleged that “[B.F.] has been removed from the Parents for at least six month under a dispositional decree on March 30, 2010.” (DCS Ex. No. 2). However, it is undisputed that the trial court entered the dispositional decree on May 25, 2010 whereas the termination petition was filed on October 10, 2010, less than four months after entry of the dispositional decree and less than nine months following B.F.’s removal from Mother’s home. Further, there is no evidence that the trial court ever entered a finding under I.C. § 31-34-21-5.6. Therefore, the only requirement alleged under I.C. § 31-35-2-4(b)(2)(A) was not true. Consequently, DCS failed to comply with the termination of parental rights statute and the trial court committed reversible error in granting the involuntary termination petition. See In re K.E., 963 N.E.2d at 602.

CONCLUSION. Based on the foregoing, we conclude that the trial court committed fundamental error in terminating the Parents’ parental rights to B.F. and reverse and remand for further proceedings consistent with this opinion. Reversed and remanded.

In Alice Lee v. State of Indiana , a 7-page opinion, Judge Kirsch writes:
Alice Lee (“Lee”) appeals her conviction for attendance at an animal fighting contest1 as a Class A misdemeanor. On appeal, Lee raises the following restated issue: whether Indiana Code section 35-46-3-10, which defines the offense, is unconstitutionally vague. * * *

Lee contends that Indiana Code section 35-46-3-10 is unconstitutionally vague because its language fails “to inform an ordinary person of what conduct is prohibited.” * * *

As applied to this offense, Lee’s vagueness argument amounts to claiming that the statute’s failure to further define “attend” authorizes the prosecution of anyone who is in the vicinity of an animal fighting contest without regard to their intent. * * *

Lee has failed to carry her “heavy burden” of proving that Indiana Code section 35-46-3-10 is unconstitutionally vague. The evidence supports the trial court’s judgment of guilt. Affirmed.

NFP civil opinions today (2):

Carroll S. Channel, Trustee of the Revocable Living Trust of Carroll S. Channel dated August 21, 2000, et al. v. Tim Maffatt and Bill Moffatt (NFP)

Term. of the Parent-Child Rel. of S.S., minor child, and D.S., mother, and W.S., father; D.S. and W.S. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (3):

Roderick Vandrell Lewis v. State of Indiana (NFP)

Jeremy Lamar Lloyd v. State of Indiana (NFP)

B.C. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 31, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "While We Wait: Some Thoughts on the Changing Indiana Supreme Court"

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

The three finalists for the vacancy created by Justice Sullivan’s departure have or soon will be interviewed by the Governor’s staff and the Governor. Although conceivably an appointment could be announced in a matter of days, a few weeks is more likely based on the timing of other recent appointments.
In the interim, some have wondered whether the Court will issue any opinions. Nothing prevents the Court from issuing four-justice opinions while it waits for its newest member. This did not happen in the short period between Chief Justice Shepard’s March 23, 2012, departure and Justice Massa’s April 2 arrival. Rather, the Court did not issue any opinions until May 31.

After Justice Boehm’s September 30, 2010, departure, however, the Court issued some opinions that included his name on October 5, followed by a four-justice unanimous opinion on October 13. Justice David joined the Court on October 18, and the Court’s first opinion (excluding a disciplinary matter) came on December 8.

Once a new justice joins the Court, one would expect some delay while he (or maybe she this time around) watches the oral argument, reviews the briefs, and decides whether to join a majority or possibly a separate opinion.

Voting Alignments on the Dickson-Sullivan-Rucker-David-Massa Court

So, while we wait for a new justice, a review of the voting alignments of the four current justices seems timely. A recent post discussed opinions issued in criminal cases in the four-month period between the appointment of Justice Massa and retirement of Justice Sullivan. The center of the Court in those cases was Chief Justice Dickson, who was in the majority in all 19 cases, and Justice David, who was in the majority in 18 of the cases. Justice Rucker was in the majority in 16; Justice Massa was in the majority in 14. All three of Justice Rucker’s dissenting votes were for the defendant while all five of Justice Massa’s dissenting votes were for the State.

But what about the 11 civil and tax opinions issued during the same period? Although voting patterns in criminal cases are easy to categorize, civil cases present some challenges. There is seldom an individual defendant against the State. Plaintiff versus defendant may mean something in cases where a usually disadvantaged plaintiff faces a more powerful defendant, but in many other cases the plaintiff/defendant distinction means very little. That said, here is the breakdown of voting patterns in civil and tax opinions:

Unanimity at 50%, and the New Center

Therefore, of the thirty opinions reviewed above and in the previous post, exactly half have been unanimous. Of the fifteen non-unanimous opinions, Chief Justice Dickson has been in the majority in 87% (13/15) of cases, which is topped only by Justice David who was in the majority in 93% (14/15) of non-unanimous opinions. Of the justices who remain, Justice Rucker was in the majority in 60% (9/15), while Justice Massa was in the majority in 47% (7/15) of the non-unanimous opinions.

Some suggest the center is a good place for the Chief Justice, while others feel differently, as highlighted by the reaction to the recent Affordable Care Act case from the U.S. Supreme Court. Some believe that Justice David is the most likely member of the current Court to become Chief Justice when Chief Justice Dickson retires, and his recent votes certainly place him firmly in the center of the current Court.

An Appreciation for the Center and Precedent

A couple of the opinions are especially noteworthy for demonstrating the Chief Justice’s adherence to precedent rather than moving the Court in a new direction. In reducing a sentence from 20 to 12 years in Walker v. State, Chief Justice Dickson and Justice David could have easily voted to overrule Abbott, a 3-2 opinion in which they had dissented just weeks earlier, but instead adhered to and applied that precedent. Chief Justice Dickson’s concurrence in Dye v. State emphasized deference both to the General Assembly and the Court’s precedent: “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.”

In politics in recent years, the center is often shunned. The Indiana Supreme Court has been a remarkably apolitical body that issues a large percentage of unanimous decisions. Although unanimity appears lower in the period surveyed, it is too early to tell what the future holds as Governor Daniels prepares to appoint the third new justice in less than two years.

Posted by Marcia Oddi on Friday, August 31, 2012
Posted to Indiana Courts | Vacancy #2 on Supreme Court 2012

Courts - Kentucky Courthouses to close Tuesday for furlough

Updating this ILB entry from August 7th, Kentucky courthouses are scheduled be closed for the second time in as many months, on the Tuesday following Labor Day. See the Louisville Courier Journal story here. Some quotes:

The furloughs affect all non-elected court staff, and will affect not only courts but also administrative staff, including pretrial services, the Designated Work Program and driver license branches, according to a news release from the state court system.

Also, deputy clerks will be unavailable to process bonds and no release orders will be issued, the news release said. But the court system’s after-hours process for domestic and emergency protective orders will be in effect through the day.

The furloughs were implemented in response to cuts to the judicial system’s budget.

The courthouses will close again on October 15th.

Posted by Marcia Oddi on Friday, August 31, 2012
Posted to Courts in general

Courts - More on "Victory for Texas Voters: Restrictive Voter ID Law Rejected by Federal Court"

Updating yesterday's ILB entry on the DC District Court opinion upholding Justice Dept. challenges to the Texas voter ID law, Indianapolis attorney William R. Groth, who represented the plaintiffs in the Indiana case (Crawford), has, at the request of the ILB, prepared the following analysis, submitted late last evening:

It’s been an interesting day for the few of us in Indiana who consider ourselves election lawyers. The decision issued by the 3-judge court in the District of Columbia striking down Texas’ voter ID law offered some measure of hope to those of us who have spent much of the past 7 years litigating in vain against an Indiana voter ID law we have long contended imposes a completely unnecessary burden on the fundamental right to vote.

In addition to being an extremely well-reasoned decision, the opinion by Circuit Judge Tatel demonstrates the continuing need for and importance of the Voting Rights Act. It was interesting that although the court struck down the Texas law under Section 5 of the VRA, it did so without relying upon any of the social scientists’ testimony on either side. The court said it did not find any of that testimony persuasive in demonstrating either the number of people in Texas who don’t have ID or the law’s likely effect on turnout. Our expert in Crawford, Kimball Brace, used a methodology very similar to that used by the Department of Justice’s experts in the Texas case to try to determine the number of Indiana voters who did not have a state-issued photo ID. He must feel somewhat vindicated today. As Prof. Rick Hasen observed today in his Election Law Blog, one of the lessons that can be gleaned from the Texas case is the limits of social scientists’ ability either to gauge the effects these laws have on voter turnout or to ascertain with any reasonable degree of precision the number of persons who don’t have or won’t be able to obtain a state-issued ID.

The primary explanation for the seemingly inconsistent results in the Texas case and Crawford is the difference in the assignment of the burden of proof. In Crawford the courts placed the burden squarely on the plaintiffs to prove that the Indiana law would be unconstitutional in virtually every application. At the same time they required the State only to show that it had some legitimate reason for enacting the law, even while the State was forced to concede that the law was a remedy in search of a non-existent problem (voting by imposters at the polls). By contrast, in the Texas case Section 5 of the VRA (which applies to Texas but not Indiana) placed the burden squarely on the State to prove that the new Texas law did not have a discriminatory effect or intent, a burden the court rightly determined Texas had miserably failed to meet.

Our major objection to the Indiana voter ID law has always been to its harshness and rigidity. We never contended that requiring voters to identify themselves was per se burdensome. Rather, we argued that the problem with the Indiana law is in its inflexibility, as is reflected by the absence of an affidavit option or other alternative for those voters lacking or unable to obtain ID without a burdensome cost in money, time or inconvenience. For example, I’m currently representing pro bono a gentleman to whom the BMV refuses to issue an ID solely because the name on his birth certificate is different than the name under which he has lived his entire life and under which he has paid taxes, been incarcerated, and prior to new BMV regulations been issued a driver’s license. The BMV offers him and others similarly situated no semblance of procedural due process or any alternate way of establishing one’s identity.

A democracy that treats voters unequally based on their economic status is not the type of democracy this nation has long aspired to. Today’s decision offers a glimmer of hope that the era of onerous, unnecessary and discriminatory voter ID laws will be a brief one and that we will soon once again resume this nation’s long and arduous journey towards universal suffrage.

Posted by Marcia Oddi on Friday, August 31, 2012
Posted to Courts in general

Thursday, August 30, 2012

Ind. Courts - Both sides rest in John Walker Lindh lawsuit

Updating this ILB entry from August 28th, Charles Wilson of the AP has a long story today. A few quotes:

American Civil Liberties Union of Indiana legal director Ken Falk objected repeatedly to much of both men's testimony, calling it hearsay, and U.S. District Judge Jane Magnus-Stinson mostly sustained his objections.

The government rested its case following Thursday's testimony, but the judge didn't immediately issue a ruling. She gave both sides about 75 days to submit their final documents in the case, though she didn't indicate when she might rule.

Throughout the trial, Falk — and occasionally the judge — sharply questioned government witnesses about why religious gatherings were treated differently than others. Witnesses claimed religious gatherings posed a special risk because they create a rival power structure and could be used to mask illicit activities. They said Muslims are free to perform their daily prayers alone in their individual cells.

Posted by Marcia Oddi on Thursday, August 30, 2012
Posted to Indiana Courts

Ind. Courts - This is very strange ....

This story/announcement appeared in the August 29th Brookville American-Democrat:

On September 6, at 7 p.m., the Franklin Circuit Court and Judge J. Steven Cox will host a public presentation focusing primarily on cause numbers 24C01-9001-CF-787, 24C01-9602-CF-076, 24C01-9603-CF-085, 24C01-0710-FC-908, and 24C01-1004-DR-124 as these files relate to David Ison and the actual events surrounding his incarceration and release in Franklin County since 1990.

Much inaccurate information has been disseminated about these files, as well as the general administration of the Court. While unfortunate, this campaign season seems to have generated an inordinate amount of uninformed, negative rhetoric regarding the court and how it functions.

It is the obligation of the court to set the record straight with the facts as they are contained in the Court's actual public files located in the office of the Franklin County Clerk of Courts. The Court expects the prepared presentation to last approximately one hour, and will remain thereafter to answer all questions of concern from the public which can be addressed in a public forum.

The court apologizes in advance to the families of those affected by the public discussion of these files. It is not the goal of the Court to force the community to revisit these tragic events. However, the Court owes a public duty to correct inaccurate statements made against it to preserve the integrity and independence of the institution.

ILB: The most recent news story relating to David Ison is this one about his mother, from August 29th, headed "Mother of convicted murderer charged." See also this Feb. 15, 2012 story from Fox 59 headed "David Ison pleads guilty to Franklin County murders: Ison changes plea at Tuesday hearing, accepting plea of six life sentences without the possibility of parole."

Posted by Marcia Oddi on Thursday, August 30, 2012
Posted to Indiana Courts

Courts - "Victory for Texas Voters: Restrictive Voter ID Law Rejected by Federal Court"

Here is the press release from the Brennan Center for Justice at NYU Law.

Here is Prof. Rick Hasen's analysis at Election Law Blog and a link to the opinion.

[More] Prof. Hasen's points out that "there's lots in the opinion comparing Texas's law to Indiana's. And indeed, the comparison to Indiana's law, and discussion of the decision in Crawford v. Marion County Election Board, the facial challenge to the Indiana voter law, begins on p. 19 of the 54-page opinion and continues throughout. (See this April 28, 2008 ILB entry on Crawford, as well as this one from the following day.)

Posted by Marcia Oddi on Thursday, August 30, 2012
Posted to Courts in general

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

In Sung Park v. Ind. Univ. Sch. of Dentistry (SD Ind., Lawrence), an 11-page opinion, Circuit Judge Wood writes:

Sung Yeun Park had hoped to become a dental surgeon when she enrolled at the Indiana University School of Dentistry (IUSD) in 2006. After one year at the school, however, Park began to experience a series of serious setbacks, including several failing grades and allegations of professional misconduct. Eventually, the school concluded that she had to be dismissed from its program. Park appealed without success to various school committees and administrators to overturn this decision. This suit, alleging Equal Protection and Due Process violations, as well as claims for state law breach of contract, represents her latest effort to win re-admittance. The district court dismissed all of Park’s claims for failure to state a claim, and we affirm. * * *

Park concedes that her complaint did not specifically plead that her race or her gender had anything to do with what happened to her. This alone could defeat her claim of race- and gender-based discrimination. But even looking past this omission, Park’s complaint does not plausibly allege discriminatory intent. The complaint contains only one reference to any such discrimination: a single statement that “Defendants’ conduct [expelling Park] was undertaken because of her race, ancestry, national origin and/or gender.” Compl. ¶ 77. This unsupported legal conclusion is precisely the type of allegation that was rejected in Iqbal, 556 U.S. 662, 678 (2009), and in Twombly, 550 U.S. 544, 556-57 (2007). On appeal, Park attempts to remedy this deficiency by including a footnote in her brief noting that she is “prepared to testify to specific instances in which Defendants applied a pattern of prejudicial and discriminatory standards of conduct to other female [and Asian] dental students.” But an appellate brief is not the place for an amendment to the complaint, and even this footnote offers no facts that might plausibly support these allegations..

IUSD did not breach its contract with Park, nor did IUSD violate Park’s federal rights to due process or equal protection of the laws. The judgment of the district court is AFFIRMED.

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

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Lane Alan Schrader Trust as Trustee under the Trust Agreement dated 16th day of November, 1999, and known as Lane Alan Schrader Self-Declaration of Trust v. Larry Gilbert and Nancy J. Malecki, an 18-page opinion, Judge Baker writes:

In this case, we are presented with a property boundary dispute and how trial courts may settle them through the use of land surveys. Here, a landowner purchased property based on information from a neighbor that a barn on the property had a twenty-foot setback. The landowner required this setback to conduct his business; however, at least two surveys indicated that the setback was less than the required twenty feet. The landowner decided to have a legal survey performed on the property, which indicated that there was a twenty-foot setback. This legal survey was recorded in the county recorder’s office.

The landowner’s neighbors appealed the legal survey to the trial court, arguing that it should be stricken from the recorder’s office. After a bench trial, the trial court determined that the legal survey was defective for failure to use good surveying practices and imposed two previous surveys. We conclude that this was error. The applicable statutory provisions require that strict notice provisions be followed, and there was no evidence that notice was given before the two previous surveys were conducted. Moreover, we think that the proper interpretation of the statute is that the trial court may either accept the survey that is being appealed, order a new survey, or order the county surveyor to locate and mark the boundary lines according to the trial court’s findings as supported by the evidence. * * *

[T]he trial court should have ordered the county surveyor to mark the boundary lines according to the Turning Point Survey and the Progressive Survey rather than simply imposing those two surveys. Put another way, the trial court did not err by accepting the two previous surveys but skipped a step by imposing them. Therefore, we conclude that the trial court erred by imposing the two previous retracement statutes. * * *

The judgment of the trial court is reversed and remanded with instructions.

In Peabody Energy Corp., Peabody Coal Company, LLC, and Black Beauty Coal Company v. Richard F. Roark, Beelman Truck Co., and North American Capacity Insurance Co., a 14-page opinion, Judges Barnes writes:
The dispositive issue we address is whether Peabody is an additional insured under an insurance policy issued by NAC. * * *

Because Roark’s injuries arose out of Beelman’s operations, Peabody is an additional insured under the Policy. As such, Peabody, not NAC, is entitled to summary judgment on the declaratory judgment action. Further, because Peabody is an additional insured under the Policy, Beelman did not breach the MPA. Thus, summary judgment in favor of Beelman was appropriate. We affirm in part, reverse in part, and remand.

In F.D., G.D., and T.D. b/n/f J.D. and M.D.; J.D. and M.D., Individually v. Indiana Dept. of Family Services, Vanderburgh Co. Office of Family & Social Services, Evansville Police Dept.,, et al., a 27-page, 3-opinion decision, with 2 of the opinions dissenting "in part", Judge Vaidik writes:
M.D. (Mother) and J.D. (collectively, “the parents”) appeal the trial court’s decision to grant summary judgment in favor of the Department of Child Services (Child Services) and the Evansville Police Department (the Police Department) for Child Services’ and the Police Department’s failure to inform them of their daughter’s molestation. The trial court based its decision on the grounds of immunity under both the Indiana Tort Claims Act and Indiana Code section 31-33-6-1, one of Indiana’s child abuse reporting statutes. However, we find that the Police Department is not a proper party to this case. We also hold that Indiana Code section 31-33-18-4, the statute the parents say gives rise to Child Services’ duty to notify them of their daughter’s molestation, does not confer a private right of action. We therefore affirm the trial court. * * *

This statute mandates that Child Services must refer a case to the juvenile court or make a referral to the prosecutor if it is in the best interest of the harmed child to do so. Therefore, Child Services has a statutorily mandated role in the initiation of judicial proceedings in the context of child abuse and neglect. As a result, the trial court did not err in finding that Child Services was immune for its actions under this subsection (6) of the ITCA. Affirmed.

CRONE, J., concurring in part and dissenting in part with separate opinion.
BRADFORD, J., concurring in part, dissenting in part, and concurring in result with separate opinion.

In Dana Young v. State of Indiana, a 7-page opinion, Judge Bradford writes:
Appellant-Defendant Dana Young appeals following her conviction for Class B misdemeanor Failure to Ensure School Attendance. In challenging her conviction, Young contends that she was unlawfully denied the right to a jury trial. Concluding that Young was adequately advised of and waived her right to a jury trial, we affirm. * * *

In light of Young’s failure to request a jury trial after indicating that she understood the time limitations set forth in paragraph five of the advisement of her rights, we conclude that here, as in Jackson, Young effectively waived her right to a jury trial, and accordingly, cannot successfully challenge the trial court’s failure to conduct a jury trial rather than a bench trial.

NFP civil opinions today (2):

Chris B. Davis v. Rhonda S. Davis (NFP)

In the Matter of the Commitment of D.W. v. Wishard Health Services Midtown Mental Health (NFP)

NFP criminal opinions today (5):

Michael Kern v. State of Indiana (NFP)

Keith Allen Abell v. State of Indiana (NFP)

Leroy Hall v. State of Indiana (NFP)

Danielle Kelly v. State of Indiana (NFP)

Tommy Goldman v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 30, 2012
Posted to Ind. App.Ct. Decisions

Wednesday, August 29, 2012

Ind. Gov't. - Illinois Gov. Quinn vetoes casinos for Chicago, south suburbs

The story by Dan Carden of the NWI Times begins:

Illinois Gov. Pat Quinn on Tuesday vetoed legislation permitting new casinos in Chicago and the south suburbs that would have directly competed with Northwest Indiana's five lakefront casinos.

The Democratic governor said in his veto message that Senate Bill 1849 did not include adequate ethics protections, particularly a ban on campaign donations from casino owners and managers.

"We must prevent campaign contributions by gaming operators from infecting our political process," Quinn said. He noted that Indiana bans campaign contributions from gaming-affiliated persons.

Posted by Marcia Oddi on Wednesday, August 29, 2012
Posted to Indiana Government

Courts - "Cameras come to federal courtrooms in Chicago"

Annie Sweeney, Chicago Tribune reporter, has the story in today's Tribune. Some quotes:

It wasn't exactly "Law & Order," but for the first time in Chicago's federal court history, a camera recorded proceedings Tuesday inside a courtroom so that the public could watch justice at work.

The pretrial hearing in front of U.S. District Judge Amy St. Eve didn't bring much in the way of glamour — the dispute centered on an alleged patent infringement on a toilet flush system.

But all the trappings of a courtroom were there: a judge, debating attorneys, sworn witnesses and exhibits.

The hearing was scheduled to be available Wednesday for free on the Northern District of Illinois' website. The delay will allow court personnel to review the footage and edit out any information deemed private under the regulations of the pilot program.

That isn't the tryout's only limitation. Only civil court proceedings, not criminal trials, will be broadcast — and only if all parties in the dispute agree to be recorded. The pilot was launched in July 2011, but it has taken this long to find two civil litigants willing to participate. * * *

A more ambitious pilot program is under way in state court in Illinois as the result of a landmark decision in January by the state Supreme Court. Just last week Cook County Chief Judge Timothy Evans said he hoped to launch cameras in Cook County courtrooms by the end of the year.

James Holderman, chief judge of Chicago's federal court, also expressed support for televising court action but indicated it won't happen in a big way anytime soon.

"I believe into the future that cameras will be allowed in federal courthouses in all proceedings, civil and criminal," Holderman said Tuesday. "But I am now talking years and years down the road."

Posted by Marcia Oddi on Wednesday, August 29, 2012
Posted to Courts in general

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

In Virgil Hall, II v. Michael Zenk, Sup. (ND Ind., DeGuilio), a 29-page opinion, Circuit Judge Flaum writes:

In February 2001, Virgil Hall III was convicted in an Indiana state court of murdering his stepson. Shortly after his verdict came down, Hall discovered that one of the jurors in his case had a son that was a fellow inmate of his. Hall further learned that before his trial, the juror’s son informed the juror that Hall was likely innocent, but during the trial, the juror found out that his son and several co-inmates changed their mind about Hall, and thought him guilty. The juror relayed this extraneous information to several jurors. Upon making these discoveries, Hall filed a motion to correct error, arguing that he was not afforded an impartial jury that decided his case strictly upon the evidence presented. The state court rejected Hall’s motion, and Hall was further denied at the appellate level on direct appeal. After seeking collateral relief in Indiana to no avail, Hall filed a habeas petition in the Northern District of Indiana, arguing, inter alia, that the State should have carried the burden of proving that the extraneous information that reached his jury was not prejudicial. The district court granted Hall’s habeas petition based on our precedent of Wisehart v. Davis, 408 F.3d 321 (7th Cir. 2005), and the State now appeals. For the following reasons, we vacate the ruling of the district court and remand for further proceedings. * * *

On the limited record that we have before us, it is clear that Hall has provided enough of a factual foundation, absent any countervailing evidence, to suggest that he was prejudiced by the information acquired and shared by Juror Daniels. Through affidavits, Hall proved that highly prejudicial information about the ultimate question in his criminal case reached several members of his jury. This, with no further information about the case, gives us “grave doubt as to the harmlessness” of such an intrusion upon Hall’s jury. See Basinger, 635 F.3d at 1052 (quoting O’Neal, 513 U.S. at 445). But in deciding whether extraneous information that reached the jury was likely to have prejudiced a defendant, there is more to consider than just the nature of the extraneous information; a court may also consider, among other things, “the power of [any] curative instructions,” Warner, 498 F.3d at 681, and the strength of the legitimate evidence presented by the State, cf. Haugh, 949 F.2d at 919 (considering the fact that the defendant’s trial was “very close” in deciding whether there was a reasonable probability of prejudice). See also McNair v. Campbell, 416 F.3d 1291, 1307-08 (11th Cir. 2005) (“[T]he factors to be considered include the heavy burden on the State, the nature of the extrinsic evidence, how the evidence reached the jury, and the strength of the State’s case.”). If, hypothetically, the legitimate evidence presented by the State in a habeas petitioner’s case was overwhelming, and the trial judge in such a case gave a stern pre-verdict warning to the jurors to only consider facts that were presented during trial, concerns about the prejudicial impact of extraneous information might be lessened.

As for Hall’s trial, this is information that we do not have and, due to our appellate status, cannot obtain. Thus, while we agree with the district court that the Court of Appeals of Indiana acted contrary to clearly established federal law, we are uncertain as to whether he was actually prejudiced by the state courts’ constitutional error, given the dearth of information before us. It may be a significant challenge for the State to convince the district court that such highly prejudicial information might not have had an impact on the jury’s verdict, but this is a matter better addressed by a trial court. We therefore must vacate the district court’s grant of Hall’s habeas petition and remand to the district court. It is there that the State will have an opportunity to show, despite the strong evidence of prejudice already presented by Hall, that countervailing facts would have alleviated concerns of a prejudiced jury.

For the reasons stated, we REVERSE the judgement of the district court and REMAND for a hearing to determine whether Hall was prejudiced by extraneous information that reached his jury.

ILB: Here is the August 14, 2009 Court of Appeals opinion (initially NFP) in Hall, III.

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

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In Auto-Owners Insurance Company v. Bill Gaddis Chrysler Dodge, Inc., Garrett Gaddis and Edward Foster, a 12-page opinion, Judge Najam concluded:

We hold that the trial court did not err when it granted Foster’s motion for extension of time, which was timely filed under Trial Rule 56(C). Accordingly, we cannot say that the trial court abused its discretion when it denied Auto-Owners’ motion to strike Foster’s response. And while the trial court should have stricken the four challenged exhibits Foster submitted as designated evidence, Auto-Owners has not shown prejudice in that the other eleven exhibits are sufficient to establish a genuine issue of material fact. Finally, we agree with the trial court that there exist genuine issues of material fact whether Garrett owned the car and whether Garrett was an insured under the garage liability policy. The trial court did not err when it denied Auto-Owners’ summary judgment motion.
In Willis Pryor v. State of Indiana, a 12-page opinion, Judge Brown writes:
Willis Pryor appeals his conviction for resisting law enforcement as a class A misdemeanor and argues that he received ineffective assistance of trial counsel. Pryor raises one issue, which we revise and restate as whether trial counsel’s failure to preserve Pryor’s right to a jury trial denied him the effective assistance of counsel. We reverse and remand. * * *

Pryor argues that he received ineffective assistance of counsel when his attorney failed to file a timely demand for a jury trial because he inadvertently miscalculated the deadline date. Pryor argues that “[t]he record is unclear as to when trial Attorney Cicchini learned of Pryor’s desire to be tried by jury” but that “it must have been sometime on or before January 17, 2011.” Pryor points to this court’s opinions in Stevens and Lewis and asserts that the failure to file a timely demand was a mistake and not a choice or strategy and that he was prejudiced by his trial counsel’s deficient performance. * * *

Based upon the record, we find that the failure of Pryor’s counsel to timely file a written request for a jury trial fell below the range of professionally competent representation.

NFP civil opinions today (6):

Margaret R. Smith and Darrell G. Smith v. JP Morgan Chase Bank, as Trustee Under the Pooling and Servicing Agreement, Dated as of June 1, 2003, et al. (NFP)

Term. of Parent-Child Rel. of J.K., M.K., and C.K. (Minor Children); and S.P. (Mother) v. Indiana Dept. of Child Services (NFP)

Jean D. Schoknecht v. Susan E. Dunlap f/k/a Hasemeier and f/k/a Scribner (NFP)

Bradley J. Vossberg, and Diana Jachimiak v. Glen A. Gray, Kimberly L. Gray, and Kevin Hardie, d/b/a The Hardie Group (NFP)

William N. Gerard v. Althea L. Gerard (NFP)

In the Matter of A.J.J.: J.J. v. S.H. (NFP)

NFP criminal opinions today (5):

Edward LeFlore v. State of Indiana (NFP)

Robert Brandon v. State of Indiana (NFP)

Jerry L. Ward, Jr. v. State of Indiana (NFP)

Timothy Tingle v. State of Indiana (NFP)

Eugene Strader v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 29, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 24, 2012

There were no transfer disposition this week and hence, there is no list.

Posted by Marcia Oddi on Wednesday, August 29, 2012
Posted to Indiana Transfer Lists

Tuesday, August 28, 2012

Courts - "Savannah Dietrich sexual assault ruling could help open other juvenile cases, lawyer says"

Updating this ILB entry from earlier today, here is a story from Andrew Wolfson of the Louisville Courier Journal. He reports in a long story that begins:

Kentucky is one of only 11 states that bar virtually all access to juvenile court, according to a survey of state laws conducted by the Jefferson County Attorney’s office.

But a judge’s decision Tuesday to open the juvenile case against Savannah Dietrich’s teenage sexual assaulters could provide momentum toward a broader opening of juvenile proceedings to the public and press, said the lawyer who won the ruling.

Jon Fleischaker, who represents The Courier-Journal and other news organizations, said the case gives the press and advocates something “concrete to talk about” in arguing why juvenile proceedings should be open where there are allegations of serious criminal conduct.

“It’s not just about how the defendants are treated — it’s about how the court operated, how the county attorney operated,” Fleischaker said, adding that legislators might be concerned that a victim was told she could not talk about what happened to her.

The case won’t set any precedent unless and until it is affirmed by a higher court.

But County Attorney Mike O’Connell already said last month that he will push to open some juvenile proceedings.

In her ruling in the Dietrich case on Tuesday, Jefferson District Judge Angela McCormick Bisig cited an exception to Kentucky’s juvenile court confidentiality rule that allows judges to open cases for “good cause.”

Here is a copy of Judge Bisig's 13-page, August 28th ruling.

Posted by Marcia Oddi on Tuesday, August 28, 2012
Posted to Courts in general

Ind. Courts - "Disputes erupt inside, outside Vigo courthouse during hearing in homicide case" [Updated]

From a brief "breaking news" story in the Terre Haute TribStar:

TERRE HAUTE — The Vigo County Courthouse and Terre Haute City Hall were temporarily locked down this afternoon after a dispute — related to the fatal shooting at Indiana State University on Friday — broke out.

The clash began in the Vigo County Courthouse, where suspect William Mallory, 21, a former ISU student and Indianapolis resident, was expected to be charged in connection with the fatal shooting of Dustin Kelly, 24, of Terre Haute.

People believed to be relatives or friends of those involved in the incident began arguing inside the courtroom. Witnesses also reported a confrontation outside the courthouse. A large area of the courthouse parking lot was closed by police.

[Updated] This story from WLFI 18 has a photo of the crowd, and reports that "21-year-old William Mallory of Indianapolis appeared in Vigo Superior Court Division 6 at roughly 1:30 p.m. by teleconference." Nevertheless, "The first hearing in a Terre Haute murder case turned violent Tuesday afternoon, as apparent supporters of both the alleged victim and the alleged killer argued and exchanged blows."

Posted by Marcia Oddi on Tuesday, August 28, 2012
Posted to Indiana Courts

Law - "California Suspends Open Meetings Law to Save Money"

Really! See here.

Posted by Marcia Oddi on Tuesday, August 28, 2012
Posted to General Law Related

Ind. Decisions - Transfer list for week ending August 24, 2012?

Still no transfer list (or notice there will be no list) posted for last week. The Court generally conferences on Thursdays. Back in the day, we would get the list the next day (that Friday) ...

Posted by Marcia Oddi on Tuesday, August 28, 2012
Posted to Indiana Transfer Lists

Courts - "Savannah Dietrich sexual assault files should be open, Louisville judge rules" Yes!

If you haven't been following this Louisville case, start here for background. Earlier in the Louisville Courier Journal:

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 afternoon Jason Riley reports in the LCJ:
A Jefferson District Court judge ruled Tuesday that she will open juvenile court files surrounding the sexual assault of teenager Savannah Dietrich and an effort to hold her in contempt for tweeting information about the two boys who assaulted her.

Chief District Court Judge Angela McCormick Bisig ruled that “the very idea that a young victim of sexual assault would find the courage to tell her story and come to court, only to have no one listen to her, explain to her what is happening and then have the parties reach some type of deal without her input is abhorrent.

“The public would and should cry foul.”

Dietrich and her attorneys, as well as The Courier-Journal, sought to open the case and free her and anyone else involved to talk about specifics that had been kept confidential by juvenile court rules.

Judge Bisig ruled that the public needs to have confidence in the justice system, that Dietrich and her family want the case opened and the county attorney’s office, which prosecuted the boys, also had no objection. * * *

And [Judge] Bisig provided more details of the case: The two boys were drinking with Dietrich at her home when she passed out and they sexually assaulted her, including digital penetration, while taking cell phone pictures.

“The victim did not give consent,” Bisig wrote, and police later brought charges against the boys.

Frustrated by a plea deal and recommended sentence, Dietrich tweeted about the case, naming the boys and criticizing the court. The next day, the attorneys for the two boys filed a motion asking that she be held in contempt for violating the admonition of confidentiality.

Defense attorneys dropped the motion after a story in The Courier-Journal drew widespread attention.

Posted by Marcia Oddi on Tuesday, August 28, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 8 today (and 12 NFP)

For publication opinions today (8):

In FLM, LLC, and Daimler Chrysler Corp., n/k/a Chrysler LLC v. The Cincinnati Insurance Company, a 21-page opinion, with a separate concurring opinion, Judge Kirsch writes:

This appeal concerns insurance coverage for claims arising from the abandonment of foundry sand from the Indianapolis foundry of Daimler Chrysler Corporation, n/k/a Chrysler LLC, (“Chrysler”) by lessee International Recycling Inc. (“IRI”) on lessor FLM, LLC’s (“FLM”) property and the migration of the sand onto adjacent property. FLM filed a complaint seeking a declaration that IRI has coverage under IRI’s insurance policies with The Cincinnati Insurance Company (“Cincinnati”) for the environmental liabilities asserted against FLM and for FLM’s own action against IRI. Cincinnati filed a counterclaim, seeking a declaration that there was no coverage under the policy for the claims, and a third-party complaint for declaratory judgment that brought Chrysler into the case. Chrysler subsequently filed a counterclaim against Cincinnati for declaratory relief. The trial court granted summary judgment in favor of Cincinnati relating to the claims of FLM and Chrysler. FLM and Chrysler appeal raising several issues, of which we find the following dispositive: whether IRI’s abandonment of sand constitutes a “wrongful entry” or “invasion of the right of private occupancy” covered by the “personal injury” provisions of the insurance policies. We reverse and remand with instructions. * * *

VAIDIK, J., concurs.
BRADFORD, J., concurs in result with separate opinion. [which begins, at p. 17 of 21] Although I agree with the majority that there is coverage here, I reach my conclusion by another route. In my view, while the “personal injury” provisions of the Policies do not provide for coverage, the “property damage” provisions do. Consequently, I concur in result.

In Ann Rachelle Johnson v. Dr. A., Dr. B., and Medical Provider, a 10-page opinion, Judge Bailey writes:
[H]ere a nonparty has been ordered by a trial court to execute a broad Release with significant and unexplored legal consequences for that nonparty, and that order comes dangerously close to the type of “‘fishing expedition’” our discovery rules are intended to foreclose. Crawford v. State, 948 N.E.2d 1165, 1168 (Ind. 2011) (quoting State v. Cline (in re WTHR-TV), 693 N.E.2d 1, 6 (Ind. 1998). In such circumstances—and especially where the nonparty is not otherwise subject to the jurisdiction of an Indiana court—we think that Appellate Rule 14(A)(2) permits an interlocutory appeal as of right.

We nevertheless conclude we cannot exercise jurisdiction in this matter because Johnson’s appeal was not properly perfected. * * *

In other words, absent a clear showing of prejudice in a failed attempt to obtain a protective order, or the entry of an order making it clear that some sanction will be imposed upon a party or the nonparty subject to the order, an appeal from an order compelling a nonparty’s execution of a document is not properly perfected. * * *

It thus seems that the appropriate route for the Defendants here is to pursue an order from the trial court compelling Delnor to produce documents and then to use the appropriate Illinois process to obtain that production. However inefficient it may have been to follow the discovery procedures set forth in our Trial Rules—and whatever common practice among litigants may be—it is not clear to us that the trial court could sanction Johnson for Dr. DeBartolo’s failure to comply with the Order without abusing its discretion.

Nevertheless, because Johnson does not yet face actual prejudice from the trial court’s order, we dismiss her appeal.

In James T. Mitchell v. 10th and the Bypass, LLC, and Elway, Inc., a 15-page opinion, Judge Najam writes:
James T. Mitchell appeals from the trial court’s order that vacated partial summary judgment for Mitchell and against 10th and The Bypass, LLC (“the LLC”). The LLC and Elway, Inc. (“Elway”) filed a joint motion to vacate the partial summary judgment and tendered new evidence against Mitchell, and the trial court granted the motion and reinstated Mitchell as a defendant. Mitchell contends that, because the LLC and Elway did not move to alter the thirty-day time limit for the designation of evidence under Trial Rule 56(C) and partial summary judgment was entered, it was too late for the LLC and Elway to designate additional evidence. We conclude that the partial summary judgment was interlocutory under Trial Rule 56(C) and subject to revision under Trial Rule 54(B). Thus, we hold that the trial court did not abuse its discretion when it vacated its previously entered partial summary judgment. * * *

In sum, in this case the trial court entered two correct judgments. When the court entered the January Order, the designated evidence did not demonstrate a genuine issue of material fact as to Mitchell’s liability, and the court properly granted partial summary judgment for him as a matter of law. But because the judgment was and remained interlocutory, after the LLC tendered new evidence that established a genuine issue of material fact on the question of Mitchell’s personal liability, the trial court properly exercised its discretion to vacate the January Order and reinstate Mitchell as a defendant. The Order to Vacate was neither against the logic and effect of the facts and circumstances before the court nor contrary to law. Thus, we hold that the court’s Order to Vacate was not reversible error.

In Gunther Kranz and Carol Kranz v. Meyers Subdivision Property Owners Association, Inc.,Christopher Bartoszek, and Indiana Dept. of Natural Resources, a 7-page opinion, Judge Crone writes:
Gunther and Carol Kranz petition for rehearing in the case of Kranz v. Meyers Subdivision Property Owners Association, 969 N.E.2d 1068 (Ind. Ct. App. 2012). We grant rehearing solely to clarify why we believe that our interpretation of a regulation promulgated by the Department of Natural Resources (“the DNR”) is consistent with that of the agency’s. Therefore, we reaffirm our original opinion in all respects.
In Jamar Washington v. State of Indiana, an 11-page opinion, the jury instruction was at issue. Judge Barnes concludes:
[W]e conclude that the substance of the instructions tendered by Washington was adequately covered by the instruction given by the trial court, meaning the trial court did not abuse its discretion in refusing to give those instructions. * * *

Although we affirm Washington’s convictions, the State concedes that the trial court made a clerical error on the abstract of judgment. It states that Washington was convicted of Class D felony resisting law enforcement. The actual judgment of conviction, however, states that Washington was convicted of Class A misdemeanor resisting law enforcement. We therefore remand for the trial court to enter a corrected abstract of judgment accurately reflecting that Washington was convicted of Class A misdemeanor resisting law enforcement.* * *

Although we affirm Washington’s convictions, the State concedes that the trial court made a clerical error on the abstract of judgment. It states that Washington was convicted of Class D felony resisting law enforcement. The actual judgment of conviction, however, states that Washington was convicted of Class A misdemeanor resisting law enforcement. We therefore remand for the trial court to enter a corrected abstract of judgment accurately reflecting that Washington was convicted of Class A misdemeanor resisting law enforcement.

In K.W. v. State of Indiana, a 7-page opinion, Judge Najam writes:
K.W. appeals his adjudication as a delinquent child for committing resisting law enforcement, as a Class D felony when committed by an adult. K.W. presents a single issue for our review, namely, whether the State presented sufficient evidence to support the true finding. We reverse. * * *

The only reasonable inference to be drawn from the evidence is that Officer Smith was acting in his capacity as the school’s liaison officer and only with the intent to further an educational purpose, namely, to control a potential disturbance in the school hallway. But for the crime of resisting law enforcement to have been committed, Indiana Code 35-44-3-3 requires that a law enforcement officer be engaged in his duties as a law enforcement officer at the time of the offender’s forcible resistance. A school liaison officer is not a law enforcement officer under the statute, and neither is there any evidence in the record that Officer Smith was acting in his capacity as a law enforcement officer when he handcuffed K.W. Thus, we hold that K.W.’s adjudication for resisting law enforcement cannot stand.

In Terrell Hawkins v. State of Indiana, a 6-page opinion involving a pro se plaintiff re denial of educational credit time, Sr. Judge Garrard writes:
In the past, the State of Indiana funded postsecondary education programs in correctional facilities. However, in 2011 the General Assembly amended the governing statute, Indiana Code section 21-12-3-13, to provide that such funding cannot be used to assist an inmate who has been convicted of a felony and is confined for that felony in a penal facility. 2011 Ind. Acts 3791. The statutory amendment caused Ivy Tech to end its postsecondary education program at the point when Hawkins had completed two semesters of his associate’s degree program and was halfway done. As a result, Hawkins was unable to complete the degree program. He filed a Verified Petition for Additional Credit Time. The trial court denied Hawkins’ petition, and this appeal followed. * * *

Hawkins contends that the statutory amendment to Indiana Code section 21-12-3-13, which caused Ivy Tech to end the program through which he was pursuing his degree, violates federal and state constitutional prohibitions against ex post facto laws. * * *

Here, the statutory amendment that resulted in the end of the educational program in which Hawkins was participating applied prospectively rather than retroactively. Furthermore, although Hawkins may have lost an opportunity to obtain educational credit time, the amendment did not increase his twenty-year sentence or alter the definition of his criminal conduct. Consequently, his federal and state ex post facto claims fail. [More constitutional issues follow] * * *

[Finally] the statute by its plain language provides that an inmate is entitled to credit time only for completing a postsecondary degree program. It does not authorize partial credit for partial completion, and it does not compel the DOC to provide funding for a postsecondary degree program. We find no error.

In Anthony Mark Sewell v. State of Indiana, a 12-page opinion, Judge Kirsch writes:
Anthony Mark Sewell (“Sewell”) appeals his conviction of committing a sex offender residency offense as a Class D felony, contending that the evidence was insufficient to support his conviction and that the conviction violated the prohibition against ex post facto provisions in both the federal and state constitutions. * * *

In the present case, Sewell did not reside or own property within 1,000 feet of the church when he was convicted of child molesting. Nor has he shown that he resided in property which only later fell within a protected zone due to the establishment of a school or youth program center. Here, the law punishes the decision by Sewell, an offender against children, to take up residence within 1,000 feet of an existing youth program center. We conclude that because Sewell’s residency decision occurred after the enactment of the statute, Sewell’s prosecution does not violate state or federal ex post facto provisions.

NFP civil opinions today (4):

Gregory C. Walbridge v. JP Morgan Chase Bank, N.A. (NFP)

In the Matter of the Adoption of C.E.H., minor; W.S. and E.H. v. J.T.C. and S.L.C. (NFP)

Term. of Parent-Child Rel.: T.V. (Minor child) and M.M. (Father) v. The Indiana Dept. of Child Services (NFP)

In the Matter of M.S. (Minor Child), Child in Need of Services; M.S. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (8):

Donald E. Wrobel v. State of Indiana (NFP)

Kenneth Johnson v. State of Indiana (NFP)

David D. West v. State of Indiana (NFP)

Bradley Berry v. State of Indiana (NFP)

Londale D. Madison v. State of Indiana (NFP)

William Bruce v. State of Indiana (NFP)

Steven Wayne Minor v. State of Indiana (NFP)

Gerald W. Town v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 28, 2012
Posted to Ind. App.Ct. Decisions

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

The 7th Circuit opinion today in Schepers, et al v. Ind. Dept. Corrections (ILB summary and initial discussion here) is the subject of a story released a few minutes ago by Jonathan Stempel of Reuters. Some quotes:

(Reuters) - A federal appeals court said Indiana's sex and violent offender registry unconstitutionally violated the due process rights of thousands of registrants because it did not give them a chance to fix mistakes.

The 7th U.S. Circuit Court of Appeals in Chicago rejected arguments by the Indiana Department of Correction that it was not directly responsible for errors in the registry, which contains about 24,000 names, and that registrants had other procedures to challenge mistakes. * * *

Tuesday's decision reversed a December 2011 ruling by U.S. District Judge Tanya Walton Pratt in Indianapolis. The 7th Circuit sent the case back to that court, and encouraged the parties to agree on procedures to fix registry errors. * * *

Ken Falk, legal director of the ACLU of Indiana, said he was "very happy" with Tuesday's decision.

"There are examples of people who are being labeled as sex offenders who are not, and cannot get their names off the registry," he said. "That is a stigma that follows you forever."

Wood also said new procedures may even help the state, by reducing unnecessary monitoring costs by law enforcement and increasing the value of the registry as a child protection tool.

Circuit Judges Richard Posner and Joel Flaum joined Wood in Tuesday's decision.

[More] The Indiana ACLU has now issued a press release, available here.

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

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

In Farrell v. Comm. of Social Security (ND Ind., Rodovich), a 14-page opinion, Judge Wood writes:

Angela Farrell suffers from anxiety, depression, suicidal tendencies, insomnia, vertigo, migraine headaches, fibromyalgia, carpal tunnel syndrome, and plantar fasciitis. Citing this array of impairments, she applied for disability insurance benefits; as of the date of her application, she was almost 34 years old. Her initial application was denied, but the Social Security Administration Appeals Council remanded her case for reconsideration. On remand, the Administrative Law Judge (ALJ) once again ruled against her, in part because of her failure to establish definitively that she suffered from fibromyalgia. The Appeals Council summarily affirmed this decision, despite new evidence before it that confirmed the fibromyalgia. The district court in turn affirmed that ruling, and Farrell now appeals. We reverse. The Social Security Administration’s own regulations require the Appeals Council to consider “new and material evidence,” but it did not do so in this case. In addition, several other aspects of the ALJ’s decision independently require correction. Because these warrant reversal in and of themselves (that is, without regard to the error committed by the Appeals Council), we follow the procedure that normally applies when the Appeals Council denies review and remand to the ALJ.

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

Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal re sex offender registry issue [Updated]

In Schepers, et al v. Ind. Dept. Corrections (SD Ind., Pratt), a 16-page opinion, Judge Wood writes:

WOOD, Circuit Judge. Indiana, like many states, maintains a public database of persons convicted of sex offenses. Its database is called the “Sex and Violent Offender Registry” and is accessible via the Internet. See Indiana Sex and Violent Offender Registry, http://www. icrimewatch.net/indiana.php (last visited August 23, 2012). People visiting the registry’s website find, on each registrant’s page, a recent photograph, home address, information about the registrant’s height, weight, age, race, and sex, and information about the particular offenses that required placement on the registry. Some registrants’ pages may additionally carry the label of “sexually violent predator,” if they have committed certain serious offenses or have had multiple previous convictions for specified sex and violent offenses. See IND. CODE § 35-38-1-7.5 (defining “sexually violent predator”). The public can search the database by a variety of fields (such as offender name or county of residence), and can generate a map showing the location of all registered offenders living near any address (such as one’s home or school).

A class of persons required to register brought this suit against the Indiana Department of Correction (DOC), alleging that the DOC’s failure to provide any procedure to correct errors in the registry violates due process. In response, the DOC created a new policy to give notice to current prisoners about their pending registry listings and an opportunity to challenge the information. The district court granted summary judgment on the ground that the new policy was sufficient to comply with due process. But the DOC’s new procedures still fail to provide any process at all for an entire class of registrants—those who are not incarcerated. We thus reverse the district court’s grant of summary judgment and remand for further proceedings. [ILB emphasis]

For background start with my August 23rd notes on the meeting that day of the interim legislative Criminal Law and Sentencing Policy Study Committee, which met on criminal history providers, the sex offender registry, and SORNA. My notes ended:
As the long meeting wrapped up, the chairman Rep. Steuerwald, was listing items that had to be considered. Larry Landis added "How a person can get off the registry."
Be sure to see also this August 20th backgrounder.

The backgrounder links to this July 26, 2012 COA opinion, where Chief Judge Robb's dissent includes: "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." The majority in the case, Cline v. State, ruled no.

Today's 7th Circuit opinion concludes:

At this stage, we decline to outline in any more detail what sort of process the DOC must enact. Instead we leave it open for the parties to determine in further proceedings (or, of course, the court, should the parties fail to agree on a constitutionally adequate result). We note in this connection that due process is “flexible and calls for such procedural protections as the particular situation demands.” Dupuy v. Samuels, 397 F.3d 493, 504 (7th Cir. 2005) (quoting Mathews, 424 U.S. at 334). It is possible that a paper review system would suffice, given the fact that registration requirements are not discretionary. We also do not prejudge whether or to what extent additional process would be required at each re-registration event, assuming that the person’s registration status has not changed. If there are reasons to provide additional process at re-registration stages, or there is no available judicial review of the DOC’s denial of an appeal, the parties or the court will need to consider whether DOC must provide somewhat more extensive process. See Dupuy, 397 F.3d at 504 (“As long as substantial post-deprivation process is available, the pre-deprivation process . . . need not be elaborate or extensive. Rather, in many situations, it should be an initial check against mistaken decisions.”).

We conclude with the observation that providing additional procedures to correct registry errors may wind up benefitting the state as well as registrants. Erroneously labeling an offender a sexually violent predator imposes unnecessary monitoring costs on state law enforcement and reduces the efficacy of the registry in providing accurate information to the public. See Indiana Sex Offender Registry Full of Inaccuracies, EVANSVILLE COURIER & PRESS, Apr. 21, 2012, available at http://www. courierpress.com/news/2012/apr/21/indiana-sex-offenderregistry- full-inaccuracies/ (quoting the “director of legislative affairs at the National Center for Missing & Exploited Children” calling the errors “troubling” because “[t]he value of the public registry as a child protection tool is that the information is accurate”). Reducing these errors is in the interest of the state as well as the plaintiffs.

On remand, we encourage the parties to work together to come to an agreement that fits within the boundaries outlined above. As it stands, the DOC’s process is constitutionally insufficient. We thus REVERSE the district court’s grant of summary judgment and REMAND for further proceedings consistent with this opinion.

[Updated] Here is a copy of the original complaint filed by the ACLU in Schepers.

Posted by Marcia Oddi on Tuesday, August 28, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Health Care Exchanges, a report

Here, from the Congressional Research Service (CRS), is a useful 36-page, August 15th report titled "Health Insurance Exchanges Under the Patient Protection and Affordable Care Act (ACA."

Posted by Marcia Oddi on Tuesday, August 28, 2012
Posted to Indiana Government

Law - "Maxeiner on the Absence of Codification in the U.S."

Legal Theory Blog points to this article: "James R. Maxeiner (University of Baltimore - School of Law) has posted The Costs of No Codes (Mississippi College Law Review, Forthcoming) on SSRN."

Here is a sample from pp. 3-4:

Although true codes are rare or nonexistent in the United States, many American laws are called codes. The name is a vestige of the attempts to codify law. We sketch that history below in Part 3. Already in the 19th century Europeans held the appellation of code to American laws to be a misnomer because American codes are not systems of law. They are laws without logical order: compilations of statutes arranged in alphabetical order of subject matter groupings. Within these compilations, however, one can find individual laws, such as the UCC, which might qualify for code status outside the United States. Most of these possible codes are in public rather than in private law (e.g., criminal law, procedure).

Despite a dearth of true codes, there is no shortage of statutes. Today American law principally takes the form of legislatively-adopted statutes. In day-to-day American life statutes more than precedents, prescribe what people shall do and proscribe what they shall not do. They, and not court precedents, are the principal tools that American law uses to order society.

Most American statutes deal with some specific problem as it arises and do not seek comprehensive and systematic solutions. The result is a lot of laws, but little cohesion or “correlation” among them.

Posted by Marcia Oddi on Tuesday, August 28, 2012
Posted to General Law Related

Environment - "SPEA dean found safe after unlocked car was discovered idling in Indy parking lot"

Laura Lane of the Bloomington Herald-Times ($$$) reported on August 22nd:

When police found John D. Graham’s silver 2012 Lincoln unlocked and idling in the parking lot at an Indianapolis Cracker Barrel restaurant early Tuesday morning, they feared something bad might have happened to him.

It turns out that Graham, dean of Indiana University’s School of Public and Environmental Affairs, had left the car there intentionally. He met two friends there Monday morning — the first day of classes on IU’s Bloomington campus — and the three took another vehicle to Ohio to play golf.

Graham, SPEA dean since 2008, apparently forgot to push an ignition button to shut off the car’s motor. * * * [I]t had been idling in the parking lot since early the previous day. * * *

According to a police report, Graham’s wife was unconcerned, calling her husband a “typical absent-minded professor” who has been known to leave his car unlocked, sometimes still running. She said the car idles quietly.

Posted by Marcia Oddi on Tuesday, August 28, 2012
Posted to Environment

Ind. Courts - More on "John Walker Lindh Sues For Prison Prayer Group"

Updating yesterday's ILB entry, here is the latest AP story from Charles Wilson. A few quotes:

[John Walker] Lindh testified Monday in U.S. District Court in Indianapolis during a trial in a civil lawsuit seeking to overturn the prison policy, which he argues violates a 1993 law barring the government from curtailing religious expression without showing it has a compelling interest. * * *

A cluster of openly armed U.S. marshals escorted the shackled Lindh into the federal courtroom in downtown Indianapolis. The bushy-bearded Lindh, who wore an olive green prison uniform and a white prayer cap, smiled at his mother, who sat in the third row and offered a strained smile back at him. Four of the marshals stood a few feet away while Lindh sat at a table with his attorneys from the American Civil Liberties Union of Indiana.

He was soft-spoken throughout most of his testimony but became agitated when Deputy U.S. Attorney William McCoskey asked him why he had not stood along with everyone else when Judge Jane Magnus-Stinson entered the courtroom.

"It's against my religion," Lindh said. "This procedure of standing up for people is unacceptable."

He also said he didn't acknowledge the government's authority to restrict his religious practices.

"I don't recognize any law but the Sharia of Islam," Lindh said in response to questioning by government attorneys. "There is no compromise."

Here is the front-page Indianapolis Star story today by Kristine Guerra and Diana Penner.

Posted by Marcia Oddi on Tuesday, August 28, 2012
Posted to Indiana Courts

Monday, August 27, 2012

Stage Collapse - "Woman Pleads Guilty To Falsely Claiming State Fair Injuries"

Here are the earlier stories, from last December. Today's story from WRTV 6 begins:

An Indianapolis woman has pleaded guilty to falsely claiming to have been injured in the Indiana State Fair stage rigging collapse.

Stephanie Murry and Sandra Hurn falsified hospital records and submitted claims to both the Indiana State Fair Remembrance Fund and the Indiana Tort Claim Fund, Marion County Prosecutor Terry Curry said.

Hurn, who claimed to be an 11-year-old girl, received a $7,500 check from the remembrance fund, but Murry's claim was denied because the injuries reported didn't meet qualifications, officials said.

Both women were told they would receive a check from the tort claim fund, but Hurn was arrested when she arrived to pick up the check. Murry was taken into custody a short time later with her $2,900 check.

Murry pleaded guilty Monday to one count of forgery and one count of perjury.

Posted by Marcia Oddi on Monday, August 27, 2012
Posted to Stage Collapse

A teaching moment - Today in a Court of Appeals opinion footnote

Robert Dowell v. State of Indiana is the COA opinion today (see ILB summary here, 4th case) addressing why, once jury deliberations commence, the trial court should not give additional instructions in a manner so as to emphasize that issue as being of primary importance.

On page 2, the opinion by Judge May footnotes the word "FACTS" in the heading "FACTS AND PROCEDURAL HISTORY." The footnote reads:

2. We remind the State that a Statement of Facts in an appellate brief “shall describe the facts relevant to the issues presented for review.” Ind. Appellate Rule 46 (emphasis added). The State’s Statement of Facts describes Dowell’s offense in great detail, but is devoid of any facts relevant to the only issue presented for our review.

Posted by Marcia Oddi on Monday, August 27, 2012
Posted to A teaching moment

Ind. Law - More on: Will this be the year for sentencing reform?

As the ILB wrote in this August 21st entry, the Criminal Code Evaluation Commission will meet for this first time this year on Thursday, September 6th. As the agenda indicates, the main item on the agenda will be a "Presentation by the Data Analysis Work Group, G. Roger Jarjoura and Thomas D. Stucky, concerning low level felony incarceration."

Maureen Hayden of CNHI looked at that study in this story yesterday in the New Albany News & Tribune. Here are the striking introductory paragraphs:

INDIANAPOLIS — A closer look at low-level offenders in Indiana prisons reveals few of them are first-time criminals.

A yet-to-be released study of state prison inmates convicted of class D felonies — the lowest felony level in Indiana — shows they had an average of five prior criminal convictions.

The study also shows that of those first-time offenders who did go to prison on a class D felony conviction, nearly 80 percent of them did so for committing a violent crime such as battery or domestic violence.

The study upends the premise that drove the sentencing reform effort that failed in the last legislative session: That is, that prosecutors and judges were crowding state prisons with low-risk, first-time offenders.

More from the story:
While the study shows that 91 percent of class D felons in the Indiana Department of Correction are repeat offenders, it also shows why many of them are there: On drug and theft charges.

Most of the drug convictions involved dealing in marijuana and more than half of the theft convictions involved stolen items worth less than $250.

Andrew Cullen, legislative liaison for the Indiana Public Defender Council, said the study shows there are too many people in prison from drug and theft crimes.

“The data shows that we are incarcerating a lot of citizens who are non-violent, low-level property offenders, and we believe there are other options that are much more effective in addressing that behavior,” Cullen said.

About 27,000 offenders are housed in state prisons run by the Indiana Department of Correction; about 15,000 are there on class D felonies.

Cullen and other advocates of sentencing reform have argued that those low-level offenders are crowding prisons and taking up space that should be used for violent offenders.

The study shows the state prisons are crowded with people who can’t — or won’t — stay out of trouble. It shows that more than half of the class D felons in DOC prisons are there because they violated the terms of their probation or parole.

“These were people given the opportunity to succeed back in the community, but who decided not to follow the rules,” said Floyd County Prosecuting Attorney Keith Henderson, a strong advocate for the study.

Don Travis, chief probation officer in Howard County and president of the Probation Officers’ Professional Association of Indiana, is one of the few non-legislators who sits on the Criminal Code Evaluation Commission.

“The question has been, ‘Are we putting the proper people in DOC?’ and this report indicates we are,” Travis said.

The study’s findings are important, especially to the state’s prosecutors. They were widely blamed for derailing legislation last year aimed at reducing the state’s prison population by sending more low-level offenders back to their home communities.

Local prosecutors balked at the notion that they were driving up the state’s prisons costs. * * *

The Center for Criminal Justice Research study came in response to questions raised by prosecutors and some legislators about a January 2011 report from the Council on State Governments and the Pew Center on the States. That report, initially used as an argument for sentencing reform, showed Indiana’s prison population had increased more rapidly than surrounding states over the past decade and was on track to keep escalating at an enormous cost to the state budget.

But prosecutors questioned why that report used prison population numbers from 2000 to 2008, which showed a rise in prisoners, but didn’t use numbers from 2009 and 2010, which showed a leveling off of the prison population.

Prosecutors also questioned the report’s finding that about half of new prisoners in DOC facilities were people whose crimes fell into the least serious category, class D felonies. Those numbers were used as basis for the sentencing reform bill that would have reduced penalties for low-level drug and property crimes and shifted those offenders out of state prisons and back into local jails and community corrections programs.

ILB: Here are the first 4 pages of the 25-page report, explaining the methodology.

Posted by Marcia Oddi on Monday, August 27, 2012
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In Wells Fargo Bank, N.A., Successor in interest to The Money Store Investment Corp., f/d/b/a First Union Small Business Capital v. Neal A. Summers, et al., a 35-page opinion on a petition for rehearing, Judge Brown writes:

Wells Fargo Bank, N.A. (“Wells Fargo”), successor in interest to The Money Store Investment Corporation, f/d/b/a First Union Small Business Capital, petitions for rehearing following our memorandum decision dismissing its appeal. In that decision, we concluded that the notice of appeal was untimely pursuant to Ind. Trial Rule 53.3 and Ind. Appellate Rule 9. In its petition for rehearing, Wells Fargo acknowledges that this court’s opinion was correct based upon the record it presented but states that the record was not complete. Wells Fargo subsequently filed a Verified Emergency Motion for Leave to Correct Clerk’s Record and Supplement Appendix, which this court granted. An amended notice of completion of the clerk’s record was also filed. Based upon the amended record, we conclude that Wells Fargo’s notice of appeal was timely, vacate our prior decision, and proceed to determine the issues raised by Wells Fargo in its initial brief. Wells Fargo raises five issues which we consolidate and restate as whether the trial court erred in determining the amount of Paula Phillips’s lien. We affirm in part and remand.
In Joseph Meizelis v. Dana Durbin and Debra Durbin , a 9-page opinion, Judge Crone writes:
Dana and Debra1 Durbin's dissolution action has been pending since 2006. In 2010, Joseph Meizelis offered to purchase their farm, and he was permitted to intervene in the dissolution action. In an order dated March 23, 2011, the trial court determined that Dana could keep the farm property if he met certain financial obligations within thirty days; otherwise, he was to sell it to Meizelis. Dana filed a motion to correct error, and while the motion was pending, Dana and Debra reached a settlement agreement. Although their agreement was similar in many respects to the March 23, 2011 order, it did relax some of the obligations that Dana was required to meet if he wished to keep the farm property. Dana and Debra submitted an agreed judgment, and Dana dismissed his motion to correct error. Meizelis thereafter filed a lis pendens notice and a motion for relief from the agreed judgment on the grounds that he had not been given notice. The trial court denied Meizelis's motion. We conclude that the trial court properly found that Meizelis lacked a present interest in the real estate and could not prevent a settlement between Dana and Debra. Therefore, we affirm the judgment of the trial court and remand with instructions to strike Meizelis's lis pendens notice.
In Mitzi Bosley v. Niktob, LLC, Design Industries, Inc., Peg Rail, Inc., and Originnovations, Inc., a 6-page opinion, Judge May writes:
NIKTOB, LLC, leased a building from Mitzi Bosley. It sued Bosley in Marion Superior Court 7 (the “environmental court”) over environmental issues and for breach of contract. Bosley subsequently brought, in Marion Superior Court 10 (the “ejectment court”), an independent ejectment action. NIKTOB counterclaimed, raising the same environmental and contract issues that were pending in the first lawsuit. Bosley moved in the ejectment court to dismiss the NIKTOB counterclaim. The ejectment court denied her motion to dismiss and granted summary judgment for NIKTOB on the issues it raised in its counterclaim. Bosley appeals those decisions, and we reverse. * * *

NIKTOB’s environmental action and its counterclaim in Bosley’s ejectment action are at least substantially the same. All of the allegations NIKTOB made in the ejectment counterclaim previously had been asserted in the environmental action, and were repeated virtually verbatim in the ejectment counterclaim. In its motion to consolidate in the environmental action, NIKTOB correctly noted the environmental action and the ejectment action “involve common questions of law and fact. Both actions involve the same parties (and their affiliates) and both actions involve claims relating to the parties’ respective property interests in the Bosley property and the rights of the parties under the lease.” * * *

NIKTOB’s counterclaim in the ejectment action should have been dismissed, and summary judgment for NIKTOB on the counterclaim issues was therefore improper. We accordingly reverse.

In Robert Dowell v. State of Indiana , an 8-page opinion, Judge May writes:
Robert Dowell appeals his conviction of Class A felony robbery resulting in serious bodily injury. He argues the trial court erred when it gave the jury an additional instruction after deliberations began, but did not call the jury back into the courtroom or re-read the rest of the instructions. We reverse and remand. * * *

[O]nce deliberations commence, the trial court should not give additional instructions. Crowdus v. State, 431 N.E.2d 796, 798 (Ind. 1982). This rule prevents the trial court from giving special emphasis, inadvertent or otherwise, to a particular issue in the case, and thus avoids the possibility that the additional instruction might tell the jury what it ought to do concerning that issue. * * *

In the case before us, as in Graves, the jury was apparently not prepared to conclude its deliberations until its question was answered. The court gave it the additional instruction on accomplice liability without re-reading the rest of the instructions, and the jury then returned a guilty verdict. That procedure gave that instruction “the type of improper emphasis that the rule of Crowdus aims to alleviate.” Graves, 714 N.E.2d at 727, because the trial court did not re-read the entire set of final instructions contemporaneously with the giving of the additional instruction. Id. As such an additional instruction tended to “emphasize that issue as being of primary importance and . . . to tell the jury what it ought to do,” Hero, 765 N.E.2d at 603, we must reverse and remand for a new trial.

In Ian McCullough v. State of Indiana , a 48-page, 2-1 opinion, Judge Crone writes:
Ian McCullough was convicted of two counts of class A felony child molesting and one count of class C felony child molesting. His convictions were affirmed on direct appeal, and he then sought post-conviction relief (“PCR”), arguing that he received ineffective assistance of trial counsel. The post-conviction court denied McCullough's PCR petition.

On appeal, McCullough argues that his trial counsel was ineffective (1) in offering and failing to object to evidence of prior uncharged misconduct and failing to object to the prosecutor's references to that misconduct; (2) in failing to adequately cross-examine the State's investigators; (3) in failing to make an offer of proof when the trial court excluded his expert's testimony; (4) in failing to present expert evidence of child memory; (5) in failing to present certain evidence; and (6) in failing to tender or request the jury instruction mandated by the Protected Person Statute. We conclude that McCullough has failed to carry his burden to show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Therefore, we affirm the post-conviction court's judgment. * * *

MAY, J., concurs.
BROWN, J., dissents with separate opinion. [which begins at p. 40 of 48, and concludes] While some of the errors by trial counsel may not individually be sufficient to prove ineffective representation, when viewed cumulatively counsel's overall performance fell below the prevailing professional norms, and in light of the fact that the State's case rested almost entirely on L.D.'s statements, there is a probability sufficient to undermine confidence in the outcome that, but for trial counsel's errors, the result of the proceeding would have been different. Thus, I conclude that McCullough was denied the effective assistance of counsel. See Smith v. State, 511 N.E.2d 1042, 1046 (Ind. 1987) (“In the case before us the accumulation of errors mandates a finding of ineffective assistance.”); Williams v. State, 508 N.E.2d 1264, 1268 (Ind. 1987) (“It is the compilation of errors and omissions by counsel which creates the necessity for reversal in this case.”).

For the foregoing reasons, I respectfully dissent and would reverse the post-conviction court's denial of McCullough's petition for relief.

NFP civil opinions today (3):

Michael Butler and Amanda Butler v. Jerry Hall and Susan Hall (NFP)

In the Matter of the Guardianship of Guido Joiko; Kenneth Schaaf v. Fifth Third Bancorp, Guido Joiko, and Geralyn Bradley (NFP)

Term. of Parent-Child Rel. of A.J.-G., Minor Child, and her Mother, S.J.-G.; S.J.-G. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (7):

Arbie Clay, Jr. v. State of Indiana (NFP)

Lloyd E. Lynch v. State of Indiana (NFP)

Ayman Eldosougi v. State of Indiana (NFP)

K.C., on Behalf of M.C. v. State of Indiana (NFP)

Robert Cruser, III v. State of Indiana (NFP)

Larry Schine v. State of Indiana (NFP)

Terry Chanley v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 27, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - Still more on the criminal history providers segment of last week's interim committee meeting

Updating this ILB entry from August 24th, Maureen Hayden, CNHI, had a follow-up story in the Clark County News & Tribune Sunday. Some quotes:

More than 1,700 Hoosiers have used the 2011 law to get court orders that seal those old records; in doing so, they’re no longer obligated to check the box on an employment application that asks if they’ve ever been arrested or convicted.

The intention of the law was to give people who’ve made stupid mistakes a second chance if they could show they’d straightened back up. But the problem in this 21st century digital age is that arrest and conviction records live on and on.

Third-party data collectors who buy and sell criminal records by the bulk aren’t yet required, under the state law, to update the information they provide to employers during background checks. That provision doesn’t kick in until next July.

During a hearing in the Statehouse last week, two of the biggest private data collectors threatened to challenge the state law in court. One part of their argument is that Indiana’s fractured court system makes it difficult — and therefore expensive for them — for them to chase down those court orders sealing those old records.

State Rep. Jed McMillin, a Brookville Republican and a former prosecutor, favors the 2011 law and wants to find a way to make it work. That may mean the state would create some kind of centralized registry of court records that third-party data collectors would pay to access.

Or it may mean that Indiana could mirror what some other states have done with their “second chance” laws: giving judges more discretion to expunge the criminal records of reformed offenders. Instead of just shielding the records from public view, as the law does now, those records would be erased — as if they were wiped away.

Still, the reality is that information in this information age is nearly impossible to erase. The 2011 law, for example, doesn’t cover the digital archives of newspapers where stories on arrests and convictions are plentiful.

ILB: As I wrote in this August 16th post, perhaps I'm missing something, but I don't see how changing the restricted access law into an expuungement law is going to change anything, insofar as third parties are concerned.

Under the latter scenario, the criminal history providers are still going to have to find out that the records have been expunged and then do the same with their own records. How is this better?

Posted by Marcia Oddi on Monday, August 27, 2012
Posted to Indiana Government

Ind. Courts - "John Walker Lindh Sues For Prison Prayer Group"

Carrie Johnson and Margot Williams have an NPR Morning Edition story here. Some quotes:

On Monday, Lindh will come out of the shadows and into a federal courthouse in Indianapolis, as the plaintiff in a lawsuit against the Federal Bureau of Prisons.

The devout Muslim wants to be able to pray together with his fellow inmates every day from inside the walls of his secret prison unit in Terre Haute, Ind.

"They can sit around and talk about politics or football or whatever philosophy," says Ken Falk, a lawyer at the American Civil Liberties Union who's representing Lindh. "The one thing they're not allowed to do is pray together for their daily prayers, which many Muslims believe is required or at least strongly preferred."

Falk says the prison system is stepping on the rights of those inmates to practice their faith under a federal law called the Religious Freedom Restoration Act.

Charles Wilson of the AP has a long story today that begins:
INDIANAPOLIS (AP) — The U.S. government claims it has the ultimate proof that American-born Taliban fighter John Walker Lindh might foment hate and violence among fellow Muslim inmates if they're allowed to pray together daily. He has already tried, it argues.

But Lindh, 31, accuses the government of going too far in its drive for security and trampling on his freedom of religion by restricting group prayers among Muslim inmates in the Terre Haute, Ind., prison unit where he has been housed since 2007.

Lindh is expected to testify Monday in federal court in Indianapolis during the first day of a trial that will examine how far prison officials can go to ensure security in the age of terrorism.

Muslims are required to pray five times a day, and the Hanbali school to which Lindh belongs requires group prayer if it is possible. But inmates in the Communications Management Unit are allowed to pray together only once a week except during Ramadan. At other times, they must pray in their individual cells. Lindh claims that doesn't meet the Quran's requirements and is inappropriate because he is forced to kneel in close proximity to his toilet. * * *

According to court documents, daily prayers were allowed from the time the unit opened in 2006 until May 2007, when Muslim inmates refused to stop in the middle of a prayer to return to their cells during a fire emergency.

The lawsuit was originally filed in 2009 by two Muslim inmates in the unit. Lindh joined the lawsuit in 2010, and the case has drawn far more attention since then. The other plaintiffs have dropped out as they were released from prison or transferred to other units.

Lindh had been charged with conspiring to kill Americans and support terrorists, but those charges were dropped in a plea agreement. He is serving a 20-year sentence for supplying services to the now-defunct Taliban government of Afghanistan and carrying explosives for them. He is eligible for release in 2019.

Posted by Marcia Oddi on Monday, August 27, 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?

From Sunday, August 27, 2012:

From Saturday, August 26, 2012:

Posted by Marcia Oddi on Monday, August 27, 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 8/27/12):

Next week's oral arguments before the Supreme Court (week of 9/3/12):

Thursday, September 6th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/27/12):

Tuesday, August 28

Wednesday, August 29

Next week's oral arguments before the Court of Appeals (week of 9/3/12):

Wednesday, September 5th

Thursday, September 6th

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, August 27, 2012
Posted to Upcoming Oral Arguments

Sunday, August 26, 2012

Ind. Gov't. - "A Pike County resident and the Evansville Courier & Press are suing the Vanderburgh County Health Department to obtain access to cause of death information contained on death certificates maintained by the health department."

So began a long story by Mark Wilson in the August 15th Evansville Courier Journal. Some quotes:

The newspaper and Rita Ward of Winslow, Ind., contend the death certificates are public records, while the health department interprets state law to require it to restrict access to them.

It's information the newspaper had published on its public records page from 2002 until May when the health department suddenly stopped including death causes in the information it provided to the newspaper.

Ward said she was prompted to investigate what was behind the change when the newspaper stopped publishing death causes. She said she is interested because of the public health implications the information might reveal, such as possible links to smoking-related illnesses.

"I truly do believe printing the cause of death is important. I believe it is a great public tool that can help people," she said. "Maybe a reader might see a neighbor who died of colon cancer and make the decision to have their first overdue colonoscopy. It can be a first step toward a change for the better. It can touch a reader. It's personal. That's why it is important."

"This is information that is important to any community. It is important to the well-being of any community, and that is why I believe the health department collects that information," said Jay Young, the newspaper's investigative editor.

After the Courier & Press quit publishing the information, Ward requested the records from the health department in writing but was denied it in a letter written by Joseph Harrison Jr., attorney for Vanderburgh County. In that letter, Harrison wrote the law requires the purchaser of a death certificate to have a direct interest in the matter.

Ward then filed a complaint with the Indiana Public Access Counselor, who gave a nonbinding opinion in her favor.

Public Access Counselor Joseph Hoage said the requirements in the law Harrison cited were made by the Legislature beginning in January 2011 and applied to the state's death registration system.

However, he said Indiana law still requires local health departments to maintain records of the death certificates filed by physicians and make them available to the public.

Hoage based his opinion on a 1998 opinion from the Indiana Attorney General's Office that said death certificates are public record. That opinion was based in part on a 1975 Indiana Court of Appeals decision upholding former Vanderburgh Circuit Court Judge William Miller's decision in a 1973 case in which a reporter from the former Evansville Press sought a death record from the health department.

The Courier & Press requested the death records again after Hoage gave his opinion but was denied by the health department. The lawsuit was then filed.

More from the story:
Attorney Pat Shoulders, who represents the newspaper and Ward, argued the health department is confusing laws governing two different death records.

One is a death certificate, which Indiana law says physicians attending at a death must file with the local health department. The other is a certificate of death registration kept by the Indiana State Department of Health and which provides basic information about the deceased, including the cause.

Shoulders said the law requires local health departments to maintain copies of the death certificates and make them accessible to the public.

"It's our position — and the position of the public access counselor — that those are public records," he said. "We think the department of health, in good faith but wrongly, relied on statutes which deal with the certificate of death registration system which is maintained by the state department of health."

Here is a May 22, 2012 ILB entry headed "Vanderburgh County changes death-record policy."

Here is the July 30, 2012 PAC opinion 12-FC-169, concerning "Alleged Violation of the Access to Public Records Act by the Vanderburgh County Health Department." From page 5:

Thus, the Department receives from the physician that was last in attendance upon the deceased or the person in charge of internment, a Certificate of Death or certificate of stillborn. The local health officer is required to maintain a copy of the Certificate of Death. You have sought copies of all records maintained by the Department pursuant to I.C. § 16-37-3-3 for May of 2012. A 1998 advisory opinion issued by the Office of the Attorney General provided that aside from the exception set forth in I.C. § 16-37-3-9(d), the death certificate and information in it are disclosable public records. See Official Opinion 98-01; Office of the Attorney General. The Attorney General opinion was primarily based on Evansville-Vanderburgh County Dept. of Health v. Evansville Printing Corp., 332 N.E.2d 829 (Ind. Ct. App. 1975), which still remains good law. The Attorney General’s opinion provided that the local health officer may exercise discretion only in deciding to whom to release the document that constitutes the Certificate of Death Registration, which is a separate document than the Certificate of Death. Id; Evansville, 332 N.E.2d at 833. “However, the information contained in the document and the information used to prepare the document are disclosable public records under the Act. Only the records prepared by the local health officer under I.C. § 16-37-3-9(d) are not disclosable public records.” Official Opinion 98-01; Office of the Attorney General.
ILB: The 1998 AG opinions do not appear to be freely available online, or the ILB would provide a link. Here is a link to the first page of the opinion, via Hein Online.

The Public Access Counselor webiste has a document available (last updated Oct. 28, 2008), titled "Public Access to Death Records."

Here are earlier ILB entries on "death records."

Posted by Marcia Oddi on Sunday, August 26, 2012
Posted to Indiana Government

Ind. Gov't. - "Overdue answers from DCS"

Wednesday, Sept. 5th, the Department of Child Services Interim Study Committee will meet for the second time. Discussion will focus on the child abuse and neglect hotline with public and written testimony. Here is the agenda. Note that it does not state that the meeting will be videocast.

The first meeting was August 22nd. See ILB entries here and here.

An editorial today in the Fort Wayne Journal Gazette remarks:

A public relations effort paints the work of Indiana’s child protection agency as among the best in the nation. But under the scrutiny of judges, child advocates, health officials and lawmakers familiar with their work, agency officials issued an almost apologetic response to troubling questions about their performance. * * *

DCS officials offered the first testimony Wednesday, with Director James Payne boasting of the agency’s work even as news of another Indiana child’s death was breaking. Three-year-old Carmen Ellis died Wednesday, and her mother’s boyfriend was arrested on a preliminary charge of murder. A month earlier, DCS had investigated an abuse complaint at her home. The agency confirmed the contact, but cited confidentiality in refusing to release further details.

A story about 3-year-old Carmen Ellis ,from the IndyStar's Tim Evans and Kristine Guerra, appears in today's Louisville Courier Journal under the headline: "Indiana agency was warned of possible abuse weeks before 3-year-old's murder." It begins:
INDIANAPOLIS — Chasity Parksey can’t find the word to express her feelings as she scrolls through photographs on her smart phone — images she was certain someone from the Department of Child Services would want to see.

The photos are of 3-year-old Carmen Ellis. One depicts a bruise on her right cheek. The other shows similar bruises on her left cheek and another over her eye.

Parksey snapped the photos on July 13 during a visit to an Indianapolis home where her sister and the woman’s boyfriend lived with another couple and two small children. She also called police.

Parksey said she saved the pictures of Carmen on her phone, expecting someone from DCS to follow up with her.

But no one from DCS ever contacted Parksey. Nor, she said, did anyone from the Indianapolis Metropolitan Police Department.

On Monday — roughly five weeks after Parksey snapped those photos and alerted police, who in turn alerted DCS — police responded to another call at a different Indianapolis home. This time they found Carmen “covered head to toe in bruises.” She died the next day.

Posted by Marcia Oddi on Sunday, August 26, 2012
Posted to Indiana Government

Law - "Terre Haute lawyer at forefront of how campaigns are funded"

Mary Beth Schneider of the Indianapolis Star has a very long, and excellent, front-page feature story today on Indiana attorney Jim Boop and his role in changing campaign finance law. A few quotes:

At the Republican National Convention in Tampa that starts Monday but will recess until Tuesday because of Tropical Storm Isaac, Bopp will be just an anonymous face amid the 4,411 delegates and alternates.

But no American who doesn't happen to be a justice of the U.S. Supreme Court has done more to shape how elections are run and won in 2012 than Bopp.

For more than three decades, Bopp has pursued 150 or so legal challenges in at least 40 states aimed at eliminating laws that he thinks gag citizens -- including organizations and corporations -- from having a voice in democracy.

Among the most significant:

In 2007, the Supreme Court, in a case Bopp filed for Wisconsin Right to Life, gutted a key provision of the McCain-Feingold campaign finance laws which barred corporate funding for broadcast ads naming a federal candidate in the days leading up to an election.

In 2008, a federal appeals court struck down contribution limits for political action committees that independently advocate the election or defeat of candidates thanks to a case Bopp filed for North Carolina Right to Life.

In 2010, the Supreme Court, in the milestone Citizens United case which Bopp initiated, overturned federal law about campaign restrictions on corporations and unions, ruling that they have First Amendment rights that allow them to spend money to support or defeat candidates. Citizens United is a non-profit group that advocates for conservative causes.

While federal campaigns still can accept no more than $2,500 from an individual, and nothing from a corporation, the 2010 decision allows indivduals, labor unions and corporations to give unlimited sums to political action committees, some of whom don't even have to disclose their donors. * * *

Last week, he headed a subcommittee drafting key sections of the GOP platform that is one of the most conservative the party has laid out. It calls for a constitutional amendment to ban same-sex marriage, and Bopp helped defeat an attempt to support civil unions for gay couples, calling them "counterfeit marriage."

And it includes a plank Bopp co-wrote calling for a constitutional amendment outlawing abortion, with no mention of exceptions for rape victims or to save the life of the mother. The issue of exceptions, Bopp said, is something for Congress to decide.

In addition, Bopp made sure the platform addressed campaign finance.

The ILB has many earlier entries on attorney Bopp.

Posted by Marcia Oddi on Sunday, August 26, 2012
Posted to General Law Related

Ind. Gov't. - Lake County coroner" guilty on all five counts"

Updating the second part of this ILB entry from August 23rd, Bill Dolan of the NWI Times reported August 24th:

HAMMOND | A U.S. District Court jury convicted Lake County Coroner and former county Clerk Thomas Philpot on Friday on five counts of theft and fraud charges.

The five-man, seven-woman jury took little more than three hours to reject defense pleas Philpot was the victim of an honest mistake and bad legal advice that led him to violate an obscure state law when he pocketed more than $24,000 from Indiana's federally funded child support incentive funds. He controlled the funds between 2004 and 2009 while serving as Lake County clerk.

That law forbids elected officials from giving themselves such bonuses without the approval of the seven-member fiscal body called the County Council.

Instead, jurors agreed the 54-year-old Highland lawyer was guilty of five felony counts that carry a maximum penalty of up to 20 years in prison. Senior U.S. District Court Judge James Moody released Philpot on bond and hasn't yet set a sentencing date.

The conviction strips Philpot from office as county coroner and all but ends his public career, which includes election as county coroner in 1992, 1996 and 2008; election as county clerk in 2002 and 2006; and his unsuccessful campaigns for Hammond mayor in 1995 and 1999, and for sheriff in 2010. * * *

[H]is lawyers, Theodore Poulos, of Munster, and Leonard Goodman, of Chicago, argued Philpot deserved the benefit of reasonable doubt because Philpot's former lawyer, David Saks, erroneously advised Philpot he was within the law.

They said Philpot returned the money, with interest, two years ago when he learned of the error.

"Is it a federal crime not to know all the statutes in the law books? He was trying to do the right thing. That's the essence of good faith," Goodman said.

Assistant U.S. Attorney Philip Benson, who won the conviction, told jurors Philpot's "ignorance" defense was absurd.

"Take into consideration his education, training, his intelligence. How could someone who had been in office for a decade think he could pay himself whatever he wants, whenever he wants?

Posted by Marcia Oddi on Sunday, August 26, 2012
Posted to Indiana Government

Friday, August 24, 2012

Ind. Gov't. - More on: Hancock County coroner steps down from office after pleading guilty in drunken-driving case [Updated]

Updating this ILB entry from yesterday, Bill McCleery of the Indianapolis Star reports today that Vangundy will not be able to run for reelection for coroner after all. From the story:

Vangundy, 49, had planned to leave her office but remain on the ballot this fall after pleading guilty Wednesday to operating a vehicle while intoxicated, a misdemeanor, and official misconduct, a felony. A judge, however, downgraded the felony charge to a misdemeanor-level penalty, which Vangundy's attorney, Carl Brizzi, believed enabled the Republican coroner to seek re-election.

A closer reading of state law, however, showed that an elected official is not eligible to remain in office when found guilty of a felony offense even if a judge reduces the charge to a misdemeanor, said Janice Silvey, chairwoman of the Hancock County Republican Party.

Brizzi has acknowledged the oversight, Silvey said.

[Updated at 6:48 PM] I've just had a chance to do a little research. Here is an Attorney General's opinion from 2006, 2006-4, that seems to cover the issue. The last matter addressed in the opinion:
A person whose felony charge is entered into judgment as, or converted to, a conviction for a Class A misdemeanor under Indiana Code section 35-50-2-7 or 35-38-1-1.5, is disqualified by section 3-8-1-5.
Discussion of this matter begins at the bottom of p. 5 of the opinion. Although IC 3-8-1-5 was somewhat amended in 2008, the result here is still the same.

Posted by Marcia Oddi on Friday, August 24, 2012
Posted to Indiana Government

Environment - 2012 Edition of Indiana Environmental Statutes now available!

This is the new, 2012 edition of the annual publication, the Indiana Environmental Statutes, sponsored by the Environmental Law Section of the Indiana State Bar Association, that I edit and publish each year.

It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.

The 2012 General Assembly made many changes to the environmental laws, including the abolition of the three long-time environmental boards (air, water, and waste), replacing them with a single board. Because this new law does not take effect until Jan. 1, 2013, this year's volume includes both the current (effective until 1/1/13) and future (effective upon 1/1/2013) versions of the affected sections, of which there are many.

As a result, this year the soft-bound volume is 610 pp. (up from 570 pp.in 2011), but still costs $30.00 plus shipping (note that shipping is less if you pool orders).

Order online (a preview of several pages also is provided at this link).

Posted by Marcia Oddi on Friday, August 24, 2012
Posted to Environment

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

MSKTD & Associates, Inc. v. CCJ Enterprises, LLC, Jeffrey Sassmannshausen, Loretta Sassmannshausen, Salin Bank & Trust Company (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, August 24, 2012
Posted to Ind. App.Ct. Decisions

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

Updating this July 23rd ILB entry, the story continues. Earlier in the LCJ:

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.

Next is this August 21st story by Jason Riley of the LCJ that began:
A Jefferson District Court judge said on Tuesday she will decide by Aug. 28 whether to open juvenile court files surrounding the sexual assault of teenager Savannah Dietrich and an effort to hold her in contempt for tweeting about the attack.

Chief District Court Judge Angela McCormick Bisig denied a request by The Courier-Journal to open the two-hour hearing in juvenile court on whether the files should be made public, but attorneys involved said afterward that the judge indicated she would rule by next week.

This August 23rd LCJ story, also by Jason Riley, is headed "Savannah Dietrich 'offended' and 'infuriated' by statements from defendant's attorney." The long story begins:
Savannah Dietrich said in an interview Thursday that she was “offended” and “infuriated” that an an attorney for one of the two boys who pleaded guilty to sexually assaulting her portrayed his client as a victim.

David Mejia told The Huffington Post this week that Dietrich had ruined his client’s life, that he had been kicked out of his high school, has had to move, was in therapy and is “just overwhelmed and devastated by what started from the conduct of this young girl saying false things as she did.”

But Dietrich said that while a part of her felt for the boys - “because I can relate to the humiliation they are going through” - she said the teens, and their attorneys, are to blame for any fallout from from what happened.

“If they didn’t try to hold me in contempt in the first place (for tweeting about the court case) none of this would have happened,” Dietrich said. “But better yet, if they didn’t sexually assault me, none of this ever would have happened. It wasn’t me that started any of this. Just because I don’t let people walk all over me doesn’t mean I’m ruining their lives. I’m standing up for myself.”

Posted by Marcia Oddi on Friday, August 24, 2012
Posted to Courts in general

Ind. Law - More on the criminal history providers segment of yesterday's interim committee meeting

Updating yesterday's ILB entry, here are two news stories.

Niki Kelly reports in the Fort Wayne Journal Gazette in a story headed "Shielding criminal records debated at hearing: Little decided; more information sought." Some quotes:

INDIANAPOLIS – The only matter made clear during Thursday’s hearing regarding a law meant to shield old criminal convictions was that numerous problems exist with its implementation.

County clerks complained about being held liable for errors and not having enough staff to redact oodles of court documents.

Criminal history providers pointed to parts of the law that conflict with federal regulations and could be illegal.

Chris Lemens, executive vice president and general counsel for website backgroundchecks.com, told the Criminal Law and Sentencing Policy Study Committee that if the law stays as is, the industry would have no choice but to challenge its constitutionality.

After several hours, little was decided by the group. When Chairman Greg Steuerwald, R-Avon, pushed for committee suggestions for draft language, several members simply said “we need more information.”

Staff attorneys have now been directed to look into legal questions and how other states are handling similar issues.

Two years ago, the General Assembly adopted a law to help people who had been convicted of a non-violent misdemeanors or low-level felonies years earlier but have had no further felony convictions for at least eight years. The concept was to give those offenders who paid their debt a second chance.

The law allows such Hoosiers to ask the courts to seal the records of their conviction from the public, but not from the courts or law enforcement officers.

Judges don’t have an option; the law states they “shall” order the records sealed.

And these Hoosiers are then legally allowed to lie on job applications and other official documents regarding those arrests and convictions.

Indiana State Police, so far, have received 1,700 court orders to seal criminal records.

More from the story:
Then earlier this year, legislators followed up. While some employers might obtain information about convictions from the courts, others may use a private company that collects and distributes information about criminal convictions for a fee. This kind of background information is also compiled for credit checks, some volunteer organizations and professional licensing. Information about convictions would remain in their databases even if it’s hidden in the courts’.

So the legislators prohibited “criminal history providers” from distributing information about convictions that have been sealed in the courts.

That portion of the law isn’t effective until July 2013.

Several county clerks, on behalf of their statewide association, testified Thursday about how difficult it is to comply with changing all the records, especially ones on microfilm or paper. They will need to hire additional staff and restrict access to records until they can be reviewed. * * *

Next up came criminal history providers, including LexisNexis, who have banded together as a group of competitors to address issues in the law.

Lemens listed a number of problems:

He first said the law needs to apply to only current Indiana residents. As written, the law would cross state lines and affect employers in another state running background checks on a person who once lived in Indiana but now lives elsewhere. Providers would not be allowed to include certain convictions on that criminal history report.

Also, the law prohibits disclosure of a criminal case with no conviction, which commonly involves a dismissal. But he pointed to the federal Fair Credit Reporting Act that conflicts, saying arrests can be reported for a certain number of years.

Lemens then noted any attempt to regulate the truthful reporting of information could be unconstitutional under the First Amendment.

He said some states have full expungement laws – where convictions are literally erased – and those states proactively send notices to criminal history provides [providers] from a central repository to remove the information from their databases.

Under Indiana’s law the convictions still exist – they are just shielded from public access. And it puts the responsibility on the providers to figure out if an old record has changed. They also can be sued for damages.

[Also] Indiana doesn’t have a centralized court system, instead relying on 92 county clerks.

Marueen Hayden of CNHI reported this story in the Pharos Tribune.

Posted by Marcia Oddi on Friday, August 24, 2012
Posted to Indiana Law

Courts - "Judge Wilhelmina M. Wright was appointed to the position of associate justice on the Minnesota Supreme Court"

From Minnesota Public Radio News:

ST. PAUL, Minn. — Minnesota Court of Appeals Judge Wilhelmina Wright will soon take her place on the state Supreme Court.

Chosen by Gov. Mark Dayton over three other finalists, Wright will be the first state Supreme Court justice who is both African American and female.

She replaces Justice Helen Meyer, who announced her retirement in May. Thirty-five people applied for the job, and the Commission on Judicial Selection winnowed the field down to four candidates: District Court Judge Tanya Bransford, Appeals Court judges Margaret Chutich and Wilhelmina Wright, and attorney David Lillehaug. Dayton said it was tough to choose among them, but the clarity of Wright's written opinions stood out.

"I was greatly impressed with her intellectual rigor, as well as her ability to take extremely complex issues and apply the law to them and apply justice to them and apply good judgment to them," Dayton said.

Posted by Marcia Oddi on Friday, August 24, 2012
Posted to Courts in general

Ind. Gov't. - "Indianapolis Mayor Greg Ballard OKs domestic partner benefits"

Updating this ILB entry from June 3rd, today Jon Murray reports in the Indianapolis Star:

After wavering on the issue for weeks, Indianapolis Mayor Greg Ballard signed off Thursday on an ordinance providing domestic partner benefits for city and county workers.

The mayor overcame his discomfort with the inclusion of employees’ unmarried opposite-sex partners — who, as Ballard had pointed out, already have the option of marrying.

His approval ushers in a policy change sought for years by some council members from both parties and by gay-rights advocates. * * *

Domestic partner benefits will take effect Jan. 1. Employees with unmarried partners who meet the law’s requirements can sign up for coverage during this fall’s enrollment period for municipal workers, [mayoral spokesman Marc Lotter] said. * * *

Besides the restriction on partners who can obtain insurance through their jobs, employees face another consideration. Unlike for married couples, benefits provided for domestic partners are taxable as income.

At Ballard’s request, the council beefed up the ordinance’s safeguards against fraud by allowing the city to require documents proving a couple meets the requirements.

Barth predicted that the positive message sent by the ordinance would reverberate outside City Hall “and will help our big companies in recruiting employees.” * * *

Indianapolis is among the last large Midwest cities to adopt a domestic partner benefits policy, following cities including Chicago, Louisville, Ky., Milwaukee, Cleveland and Columbus, Ohio. Toledo and Cincinnati adopted measures earlier this year.

From the Star sidebar:
Requirements: Both the employee and the partner must be unmarried adults “who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” They must have shared a primary residence for at least a year and share responsibility for basic living expenses. To be eligible, a partner generally cannot be able to obtain health insurance through his or her employment.

Safeguards: The employee and partner must sign a form verifying they meet the requirements, under penalty of perjury. The city’s human resources office may require that they provide three documents as evidence of the partnership. Options include papers showing joint property or vehicle ownership, a tenant lease, utility bills, bank or credit card statements, a will or trust designating the partner as a beneficiary, and driver’s licenses listing the same address.

Here is the actual document, Proposal #213.

Posted by Marcia Oddi on Friday, August 24, 2012
Posted to Indiana Government

Vacancy #2 on Supreme Court 2012 - How have the three finalists ruled/been involved in gaming-related litigation?

Indiana Gaming Insight's ($$$ only) latest issue sports a long front-page survey article headed: "Gambling on Justice (or vice versa): How trio of finalists for Supreme Court vacancy have cast the die." It begins:

The Judicial Nominating Commission presents the Governor with three names from which he will select the next member of the Indiana Supreme Court: Taft Stettinius & Hollister LLP partner Geoff Slaughter; Tippecanoe County Superior Court 3 Judge Loretta Hogan Rush; and Hamilton County Superior Court I Judge Steve Nation.

Because the Indiana appellate courts have been presented with so many significant gaming-related cases in the past 15 years or so (and others with impact on gaming, as we write about on page 14), you should know a bit about the experience that the three finalists have had with gaming law issues.

We're unaware of any gaming-related matters which Judge Rush may have addressed in her 14 years on the bench (her court has largely focused on juvenile and family matters).

However, as long-time readers of this newsletter may recall, both Slaughter and Judge Nation have been involved in assorted litigation involving gaming clients, companies, and issues.

Posted by Marcia Oddi on Friday, August 24, 2012
Posted to Vacancy #2 on Supreme Court 2012

Thursday, August 23, 2012

Ind. Gov't. - Who should decide Indiana's position on national legal issues? Who should know?

That was the title I used to a July 27, 2009 entry, and I am recycling it. The point was that the Attorney General had initiated in some cases, and in many other cases joined, national lawsuits on behalf of the State of Indiana, with little or no publicity here in Indiana.

The entry began by quoting a number of articles discussing Indiana's participation in, or initiation of, an amicus brief filed in the SCOTUS or one of the federal circuit courts. But these articles were all from other states.

Early this month the ILB saw another such article, this one in the Huffington Post ("15 States Ask the Supreme Court to Review DOMA"), dated Aug. 9, 2012. So I've been waiting to see if there would be an announcement from the Attorney General's office or a local story on Indiana's taking the lead in this SCOTUS amicus brief, but not so far ...

In this brief, authored on behalf of the State of Indiana by Gregory F. Zoeller, Attorney General, and Thomas M. Fisher, Solicitor General and Counsel of Record, and signed on to by 14 other states, the amici defend the federal Defense of Marriage Act (DOMA), arguing that "Marriage serves interests inextricably linked to the procreative nature of opposite-sex relationships." From the opening re the "Interest of the Amici States":

Congress and the overwhelming majority of States — forty-two in all — define marriage as the union of one man and one woman, consistent with the historical definition of marriage. In a decision that casts doubt on all traditional definitions of marriage and confuses longstanding equal protection principles, the court below rejected Congress’s definition of marriage. The amici States have two interests at stake: (1) protecting their power to define marriage in the traditional manner,and (2) clarifying equal protection principles that apply to marriage laws.
From the "Summary of the Argument":
The Court’s decision upholding Minnesota’s traditional marriage law in Baker v. Nelson, 409 U.S. 810 (1972), has long protected both state and federal laws defining marriage from federal constitutional attack. Although purporting to respect Baker, the decision below deftly avoids its obvious implications by creating a novel standard of review—dubbed “closer than usual” scrutiny— that invites constitutional challenges to marriage laws of all stripes. The court nominally predicated such heightened scrutiny—which runs contrary to this Court’s repeated refusal to divide rational basis review into multiple standards—on federalism concerns, but its actual analysis implies similar skepticism of state marriage laws. The reasoning and result deviate so far from this Court’s longstanding precedents and injects such confusion into equal protection doctrine that it cannot be ignored.

As Congress and forty-two States recognize, the different procreative capacities of same-sex and opposite-sex couples support a constitutionally legitimate distinction for defining marriage and affording special benefits to its participants. Traditional marriage and benefit policies further state interests in responsible procreation by encouraging biological parents to remain together, a rationale that cannot extend to same-sex couples. Congress and the States may conclude that discarding a distinction so deeply rooted in history and social experience could carry undesirable consequences, particularly where such change would utterly negate any apparent rationale for the government to afford special recognition and benefits to a limited set of relationships as “marriages.”

Review is justified not only because the decision below invalidated a federal statute, but also because it denies any relationship between DOMA and responsible procreation, and thereby casts doubt on all traditional marriage laws.

The brief quotes the 2005 Indiana Court of Appeals opinion in Morrison v. Sadler three times, including at pp. 22-23. Here is an ILB entry from Jan. 21, 2005 quoting press coverage at the time; here is a Feb. 18, 2005 entry reporting that the three couples who brought the Indiana suit had decided not to appeal. Quoting from the Star story:
Dawn Egler said the couples spoke to several people about making an appeal to the state Supreme Court.

"They all agreed that the risk of moving forward outweighed the benefits," she said.

The downside included the possibility of an unfavorable ruling, which would set a legal precedent that could hinder future challenges -- and an anti-gay backlash.

"If the plaintiffs had appealed and lost, the Supreme Court decision would have had influence beyond Indiana's borders. Just as the Indiana appellate court quoted from the legal opinions of sister states in its decision, so sister states could use an Indiana Supreme Court decision to deny same-sex families marriage-based rights," said Jennifer A. Drobac, an associate professor at the Indiana University School of Law-Indianapolis.

Somewhat ironic, isn't it...

As background, here is a Sept. 27, 2010 ILB entry on another case where the Indiana Attorney General and his Solicitor General took the lead on behalf of the State of Indiana, here opposing gay marriage in California before the 9th Circuit.

It turns out Morrison is quoted four times in the AG's 2010 amicus brief. Here from pp. 27-28:

Moreover, same-sex parents can never become parents unintentionally through sexual activity. Whether through surrogacy or reproductive technology, same-sex couples can only become biological parents by deliberately choosing to do so, requiring a serious investment of time, attention, and resources. Morrison, 821 N.E.2d at 24. Consequently, same-sex couples do not present the same potential for unintended children and the state does not necessarily have the same need to provide such parents with the incentives of marriage.

Posted by Marcia Oddi on Thursday, August 23, 2012
Posted to Indiana Government

Courts - "Federal Courts Cracking Down on Social Media Use by Jurors"

From the Blog of Legal Times:

The federal judiciary released new model jury instructions [2 pp.] this week aimed at deterring jurors from using social media while they're hearing a case.

As reported by sibling publication the New Jersey Law Journal, the guidelines can be used in civil or criminal trials. The model instructions explicitly warn jurors against using sites such as Twitter or Facebook to look up information about a case, or to communicate about it.

Posted by Marcia Oddi on Thursday, August 23, 2012
Posted to Courts in general

Ind. Law - Still more on: Interim legislative committee to meet on criminal history providers, the sex offender registry, and SORNA [Updated]

Updating this August 20th post - Excellent meeting today. Much testimony and many exhibits I would like to post on the ILB ...

(Here are my sketchy notes, official minutes should be posted before the next meeting, which is set for Thursday, Sept. 27 at 10 AM.)

Re the Criminal History Providers segment, the County Clerks association [Terri J. Rethlake Clerk of the St. Joseph Circuit Court] gave excellent testimony that seemed to build on this story titled "Public Records Requests Will Take Longer In Monroe County" that the ILB posted August 21st. I'd like to post the testimony, which seems to have been in writing.

Lexis/Nexis and West representatives, along with a representative of BackgroundChecks.com, also gave valuable testimony pointing out a number of issues. [via Luke Rollins, Reed Elsevier Inc. and Chris Lemons, General Information Services Inc.]

Re the Sex and Violent Offender Registry (and SORNA) segment, [Detective Jeff Shimkus, Allen County Sheriff’s Department], speaking on behalf of the sheriff's ass'n., gave much useful testimony. One thing he mentioned is that after a number of years, the sheriffs of the 92 counties had settled on one recommended set of "best guidelines" -- he said "we want the offender to understand his obligations, as well as law enforcement." The ILB would like to post these guidelines if they are not online ...

The sheriffs recommended that there were a number of issues with the current law that should be fixed first, before the state considered adopting Adam Walsh (SORNA).

Rep. Foley - Re making a policy decision as to whether/when Indiana will participate in SORNA, but should we wait to move the registry to the Attorney General?

Larry Landis of the Public Defender Council asked the AG representative, "Have you thought about the conflict of your office representing both the registry and the DOC?"

Brent Meyers, who may have been with the Criminal Justice Institute, had a packet of information the ILB would love to see. It included a chart as to when which offenses came on the list.

As the long meeting wrapped up, the chairman Rep. Steuerwald, was listing items that had to be considered. Larry Landis added "How a person can get off the registry."

[Updated at 4:22 PM] Thanks to defense attorney Cara Wieneke, who has just sent a chart she prepared showing when each offense was added to the registry.

Posted by Marcia Oddi on Thursday, August 23, 2012
Posted to Indiana Law

Ind. Gov't. - Hancock County coroner steps down from office after pleading guilty in drunken-driving case; Lake County federal trial

So reports Noelle Steele in the Greenfield Daily Reporter in this story that is not available to non-subscribers. More form the snippets available:

But Vangundy said she hopes to restore the public trust and hopes she is re-elected in November.
The caption under a photo says that as part of a plea agreement, she will receive a year of probation. "Although one of them originally was a felony, the agreement specifies punishment for a misdemeanor."

Thats to the reader who pointed out this story and also noted that IC 35-50-2-7, for one, allows reduction to a misdemeanor in certain cases. Felons can not run for public office. From the version in the Fort Wayne Journal Gazette:

Vangundy’s resignation wasn’t required as part of her guilty plea to misdemeanor charges. She was sentenced Wednesday to a year on probation for driving to the scene of a teenager’s suicide near New Palestine in May after drinking alcohol and taking a sleeping aid.

Defense attorney Carl Brizzi said the Republican coroner can hold office because she wasn’t convicted of a felony.

The Indianapolis Star has a longer background story by Bill McCleery, along with this follow-up.

Meanwhile in Lake County, the AP reported in an August 21st story:

August 21, 2012 (HAMMOND, Ind.) -- The federal corruption trial of a longtime northwestern Indiana elected official began with his defense attorney saying he wasn't trying to defraud anyone by taking about $24,000 in child support incentive payments over six years.

The trial of Lake County Coroner Thomas Philpot started Monday and is expected to last a week.

Here is a longer story from the NWI Times, by Sarah Tompkins.

Posted by Marcia Oddi on Thursday, August 23, 2012
Posted to Indiana Government

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

For publication opinions today (1):

In Konrad Motor and Welder Service, Inc., Konrad Lambrecht, and Sharon Lambrecht v. Magnetech Industrial Services, Inc., a 16-page, 2-1 opinion, Judge Vaidik writes:

Konrad Motor & Welder Service, Inc. (“Konrad MWS”), Konrad Lambrecht, and Sharon Lambrecht appeal the trial court’s grant of summary judgment in favor of Magnetech Industrial Services, Inc. Konrad MWS and the Lambrechts argue that there is a genuine issue of material fact regarding whether the corporate veil of Konrad Electric, Inc., a previous corporation, should be pierced in order to hold the Lambrechts individually liable for Konrad Electric’s debts and whether Konrad MWS is the alter ego of Konrad Electric.

We conclude that the trial court erred in granting summary judgment in favor of Magnetech and piercing Konrad Electric’s corporate veil because there are genuine issues of material fact such that this determination should not have been made on summary judgment. However, we conclude that the trial court properly granted summary judgment in favor of Magnetech as to the second issue because Konrad MWS is the alter ego of Konrad Electric.

We therefore affirm in part, reverse in part, and remand. * * *

BRADFORD, J., concurs.
CRONE, J., concurs in part and dissents in part with separate opinion. [that begins, at p. 15] I agree with the majority that the only reasonable inference that may be drawn from the undisputed designated evidence is that Konrad MWS is the alter ego of Konrad Electric. I also believe that the only reasonable inference that may be drawn from the undisputed designated evidence is that Konrad Electric was “merely a sham corporation in existence to allow the Lambrechts to escape liability” and that the trial court properly pierced the corporate veil. Slip op. at 10. Therefore, I respectfully dissent as to that issue.

NFP civil opinions today (2):

Arnie Cook v. Greeno Insurance, Inc., and Carl Greeno, Jr. (NFP)

Krista C. (Wilson) Williams v. Philip S. Wilson (NFP)

NFP criminal opinions today (1):

Brian C. Hostetler v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 23, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "New Albany anti-discrimination law draws raves from Kentucky"

Grace Schneider reports today in the Louisville Courier Journal:

The New Albany City Council adopted a non-discrimination ordinance earlier this summer and created a human-rights commission to help enforce the measure.

But while the ordinance received unanimous approval from the city council, the move — initiated by newly elected Councilman Greg Phipps — largely flew under the radar. * * *

New Albany’s new law bans discrimination in employment, education, housing and public accommodations based on an individual’s actual or perceived race, religion, color, sex, national origin, ancestry, sexual orientation, gender identity, veteran or military status, or disability. * * *

Kentucky’s Fairness Coalition, a group of organizations that includes the American Civil Liberties Union of Kentucky and various groups that work to advance equality for gay, lesbian, bisexual and transgender Kentucky residents, noted in a press release this week that New Albany is the only Indiana city bordering Kentucky with an inclusive non-discrimination law.

Only the cities of Louisville, Lexington and Covington have enacted non-discrimination fairness ordinances that include sexual orientation and gender identity. The group noted that Berea, Ky., also established a human-rights commission last year as a step toward fairness protections.

The New Albany council’s action makes the city the seventh Indiana municipality with discrimination protections inclusive of sexual orientation and gender identity, along with Evansville, Indianapolis and Marion County, Bloomington and Monroe County, and Lafayette, West Lafayette and Tippecanoe County. The group noted that each has similar non-discrimination laws on the books.

Posted by Marcia Oddi on Thursday, August 23, 2012
Posted to Indiana Government

Ind. Gov't. - More on: "Some judges, police call DCS child abuse hotline 'frustrating,' 'inefficient'"

Updating this ILB entry yesterday, here is some of the news coverage today:

Posted by Marcia Oddi on Thursday, August 23, 2012
Posted to Indiana Government

Courts - "Free-speech fight costs Kentucky Bar Association $191,000"

Andrew Wolfson of the Louisville Courier Journal reports today in a long story that begins:

The Kentucky Bar Association’s violation of the free-speech rights of one of its members has turned out to be costly.

A federal judge has ordered the bar to pay $191,588 to the attorneys for Henry County lawyer John M. Berry Jr.

The awarding of attorneys’ fees and costs comes after the 6th U.S. Circuit Court of Appeals ruled last month that the bar assocation violated Berry’s First Amendment rights when it threatened to sanction an attorney for criticizing the state Legislative Ethics Commission.

The amount doesn’t include what the KBA will have to pay to its own outside lawyers, Stites & Harbison, on the case.

In an email, Doug Myers, the KBA’s president, said those costs and those of the ACLU’s attorneys will be covered by the bar association’s litigation insurance policy.

The appeals court held that the bar association chilled Berry’s free-speech rights when it warned him he could be punished for challenging the integrity of a ruling dismissing an ethics complaint against Senate President David Williams.

The appeals court said a rule barring lawyers from making reckless or false statements regarding the integrity of judges or legal officers was unconstitutionally applied against Berry because everything he had said about the Ethics Commission was true or protected opinion.

Berry said after the ruling that “the bar association probably shouldn't have gotten involved with this in the first place.”

Here is the entry from the LawReader.com.

Posted by Marcia Oddi on Thursday, August 23, 2012
Posted to Courts in general

Ind. Law - More on: Interim legislative committee to meet on criminal history providers, the sex offender registry, and SORNA

Updating this ILB entry from August 20th, the meeting begins in 2 minutes in Room 404. Watch it online. Go here and select Room 404.

Posted by Marcia Oddi on Thursday, August 23, 2012
Posted to Indiana Law

Ind. Law - "Denying rapists parental rights snarls panel"

The Child Custody and Support Advisory Committee met yesterday morning. The first item on the agenda was "The parental rights of an individual whose child was conceived as theresult of the individual committing rape (SEA 190-2012)." Dan Carden had this story today in the NWI Times:

A General Assembly study committee learned Wednesday that changing Indiana law to prohibit a rapist from having any contact with a child produced by his or her crime is not as simple as it might seem.

State Sen. Ed Charbonneau, R-Valparaiso, came up with the idea after a rape victim told him the rapist-father of her child was seeking custody.

In March, state lawmakers agreed with Charbonneau that something should be done and referred the issue to a study committee to hammer out the details. But members of the Child Custody and Support Advisory Committee found they had more questions than answers.

Lawmakers were divided on the standard of proof that should be required to deny parental rights — a criminal conviction or just clear and convincing evidence of rape? And what about a rapist who pleads guilty to lesser crimes that aren't specifically rape?

Questions also were raised about who could seek termination of a rapist's parental rights. In most cases the Department of Child Services can ask a judge for termination, but lawmakers suggested a rape victim should be empowered to do so.

The panel also puzzled over what to do in cases of rape within marriage, asked whether a rapist can be required to pay child support if denied visitation and wondered if acting in the best interest of the child might sometimes allow for contact with the rapist-parent.

Ultimately the committee, which included state Sen. Karen Tallian, D-Ogden Dunes, agreed existing laws concerning paternity, protection orders and child support provide enough tools to almost always deny contact between a rapist and a child produced by a forced sex.

Posted by Marcia Oddi on Thursday, August 23, 2012
Posted to Indiana Law

Ind. Decisions - More on: $5,000 bail set for Kristine Bunch

Updating this ILB entry from yesterday afternoon, here are three new stories:

Posted by Marcia Oddi on Thursday, August 23, 2012
Posted to Ind. App.Ct. Decisions

Wednesday, August 22, 2012

Ind. Decisions - $5,000 bail set for Kristine Bunch [Updated]

Updating this ILB entry from yesterday, Charles Wilson of the AP has this first report on this afternoon's bail hearing:

GREENSBURG, Ind. — An Indiana woman convicted of setting a 1995 fire that killed her 3-year-old son is to be released for the first time after 16 years in prison.

A Decatur County judge set bail for 38-year-old Kristine Bunch at $5,000 cash Wednesday. The state Court of Appeals ordered a new trial for Bunch on murder and arson charges after evidence against her was called into question.

[Updated at 3:52 PM] Here now is an updated, longer version of Charles Wilson's story.

Posted by Marcia Oddi on Wednesday, August 22, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: Problems relating to Office of the Clerk of the Appellate Courts?

Okay, of the four issues listed in this post, as updated by this post, #1. Annual Attorney Registration, is working again. I just updated my annual registration at the Clerk of the Court's Portal.

Posted by Marcia Oddi on Wednesday, August 22, 2012
Posted to Indiana Courts

Ind. Gov't. - More on "Lake County officials promote new online tax sale

Updating this ILB entry from August 12th, Bill Dolan reports for the NWI Times that the online tax sale is doing a brisk business.

Posted by Marcia Oddi on Wednesday, August 22, 2012
Posted to Indiana Government

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

In Swanson v. US (SD Ind., Barker), a 19-page opinion, Judge Tinder writes:

David Swanson alleges in a 28 U.S.C. § 2255 petition that his trial counsel abandoned a poorly developed but winning objection at sentencing that justifies a finding of ineffective assistance of counsel. But Swanson’s trial counsel did not abandon the objection; rather, his appellate counsel failed to raise it on direct appeal. Swanson does not challenge his appellate counsel’s effectiveness, and because trial counsel raised the objection in a sentencing memorandum (twice) and never withdrew it, we cannot conclude that his performance was objectively deficient. We affirm the denial of his petition.

Posted by Marcia Oddi on Wednesday, August 22, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Ashley T. Tucker v. Michelle R. Harrison, M.D. , a 21-page opinion, Chief Judge Robb writes:

Ashley Tucker filed a medical malpractice complaint against Dr. Michelle Harrison, alleging Dr. Harrison’s negligence in performing a surgical procedure damaged her ovaries and left her infertile. A jury found in favor of Dr. Harrison and Tucker now appeals, raising three issues for our review: 1) whether the trial court abused its discretion in excluding testimony from one of Tucker’s expert witnesses; 2) whether the trial court abused its discretion in denying Tucker the opportunity to question witnesses about possible financial bias; and 3) whether the trial court abused its discretion in refusing to give the jury a res ipsa loquitur instruction. Concluding the trial court did not abuse its discretion in excluding Tucker’s expert testimony, limiting her questioning of a witness about possible bias, or in instructing the jury, we affirm.
In Ryan E. Bean v. State of Indiana, a 19-page opinion, Judge Barnes writes:
In this consolidated appeal, Ryan Bean appeals his convictions for two counts of Class A felony child molesting. We reverse and remand.

The dispositive issue we address is whether the two trial courts properly introduced into evidence Bean’s confession to police. * * *

After considering the totality of the circumstances, including but not limited to police informing Bean of the Miranda rights, we conclude that Bean was in custody when he finally gave his confession because a reasonable person would not have felt free to leave the police station at that point. The facts here are even more indicative of custody than those of Ackerman v. State, 774 N.E.2d 970, 979 (Ind. Ct. App. 2002), trans. denied, where we found a suspect to be in custody where she was “transported from home with no obvious means of returning, had admitted possible illegal activity to police, and then finally was advised of her Miranda rights . . . .”5 At the time of Bean’s confession, he was in custody but had either (a) not been meaningfully informed of his Miranda rights or (b) had earlier invoked those rights. * * *

Bean’s confession was obtained in violation of Miranda protocol and should not have been admitted into evidence in either trial. Those errors were not harmless and must result in reversal of his molestation convictions in Carroll and White Counties. We reverse and remand for retrials, if the State so chooses.

In Jorge Henriquez v. State of Indiana, an 8-page opinion, Sr. Judge Sharpnack writes:
Henriquez presents one issue for our review, which we restate as: whether Henriquez’s constitutional right to a fair and impartial jury was violated by the alleged improper influence of an alternate juror. * * *

From these facts it is clear that the trial court, in its proper discretion, determined that the alternate’s alleged conduct posed only a remote risk of prejudice, if any at all. Therefore, no full scale inquiry was warranted. We find no abuse of the trial court’s discretion and, thus, find no error, fundamental or otherwise. Moreover, in seeking a new trial based upon juror misconduct, Henriquez has not met his burden of showing that the alleged misconduct was gross and probably injurious to him.

NFP civil opinions today (3):

Gregory L. Brown v. Review Board of the Indiana Dept. of Workforce Development, and H & H Mechanical of Michiana LLC (NFP)

In Re: The Term. of the Parent-Child Rel. of: C.H. and G.H., and G.H. and J.H. v. Indiana Dept. of Child Services (NFP)

In the Matter of T.B., A Child Alleged to be a Delinquent Child v. State of Indiana (NFP)

NFP criminal opinions today (6):

Dennis Ogutu v. State of Indiana (NFP)

Tacuma G. Wolfe v. State of Indiana (NFP)

Kenneth W. Wegener v. State of Indiana (NFP)

Steven D. Powell v. State of Indiana (NFP)

Michael A. Ayers v. State of Indiana (NFP)

Ivan Brown v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 22, 2012
Posted to Ind. App.Ct. Decisions

Environment - "Federal court tosses out interstate air pollution rule for power plants"

James Bruggers of the Louisville Courier Journal has coverage of yesterday's ruling. Some quotes:

A federal appeals court Tuesday struck down an Environmental Protection Agency rule aimed at limiting the amount of air pollution from power plants that blew across state lines. * * *

A panel of the U.S. Court of Appeals for the District of Columbia Circuit found in a 2-1 ruling that the EPA, in its so-called “Transport Rule,” had required too much pollution cutting when regulating power plants in 27 upwind states .

In looking at the rule’s “good neighbor” provisions under the Clean Air Act, the court found the EPA did not allow states time to reduce pollution on their own before taking its own action. * * *

“Our decision today should not be interpreted as a comment on the wisdom or policy merits of EPA’s Transport Rule,” Judge Brett M. Kavanaugh wrote in the majority opinion from two appointees of President George W. Bush. “It is not our job to set environmental policy. Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here.”

Judge Judith W. Rogers, who was appointed by President Bill Clinton, wrote the dissenting opinion, saying that her colleagues’ decision “ignores Congress’s limitations on the court’s jurisdiction ... and proceeds to do violence to the plain text of the (Clean Air Act).”

Frank O’Donnell, a longtime clean air advocate in Washington, D.C., said that “this is clearly a big blow for breathers in downwind states. The good neighbor rule is a critical component in the EPA’s strategy to ensure healthful air quality.” * * *

The rule had established limits on two types of lung-irritating pollution — nitrogen oxides and sulfur dioxide. It also was allowed for power plants to trade emissions credits. That meant some plants were to be allowed fewer pollution upgrades if a company paid for pollution cuts elsewhere.

In addition to preventing as many as 34,000 early deaths, the EPA had predicted the rule would prevent up to 15,000 non-fatal heart attacks and 19,000 hospital and emergency room visits, by reducing emissions of sulfur dioxide by 73 percent and nitrogen oxides by 54 percent from 2005 levels.

Here is Reuters coverage from yesterday, by Valerie Volcovici. A quote:
The U.S. Court of Appeals for the D.C. Circuit said in a 2-1 decision that the Environmental Protection Agency had exceeded its mandate with the rule, which was to limit sulfur dioxide and nitrogen oxide emissions from power plants in 28 mostly Eastern states and Texas.

In the latest setback for the EPA, the court sent the Cross-State Air Pollution Rule back for revision, telling the agency to administer its existing Clean Air Interstate Rule - the Bush-era regulation that it was updating - in the interim. The EPA said it was reviewing the ruling.

Posted by Marcia Oddi on Wednesday, August 22, 2012
Posted to Environment

Ind. Gov't. - "Some judges, police call DCS child abuse hotline 'frustrating,' 'inefficient'"

A very long, must-read, front-page Indianapolis Star story today by Alex Campbell (that I had a very difficult time finding on the Star's webpage -- if I hadn't known about it and persisted, I would have missed it completely. Is that the way it will be next month for online subscribers?)

The story begins:

Department of Child Services officials call the agency's child abuse hotline a "model for other states," "one of the most up-to-date and effective" in the nation.

The hotline's workers in Indianapolis answer calls promptly and effectively 24 hours a day, the state officials say, delivering consistent results for children in all of the state's 92 counties.

But local officials who have been using the centralized hotline since it went into effect in 2010 paint a different picture. They use descriptions such as "constant problem," "very frustrating" and "inefficient."

"They do not seem to understand the issues that are actually going on in the field," a Warrick County sheriff's detective says. A Knox City police detective is more blunt: "Children are not getting the help they need."

Those comments are contained in responses to an informal survey conducted by Sen. Brent Steele, R-Bedford, which he shared exclusively with The Indianapolis Star.

Steele conducted the survey because he didn't completely buy the "everything's fine" line he was hearing from DCS. He wanted to find out what people who actually relied on the new centralized hotline were experiencing.

Steele wrote letters to dozens of judges and sheriffs in counties around the state, asking them to speak ãbout their experiences. Clearly, there are concerns with the new system.

DCS decided more than two years ago to route all child abuse calls through a central intake in Indianapolis rather than having each county take the calls that come in. Since then, DCS has faced scrutiny on several fronts. It's set to face more starting this morning, when a summer study committee begins at the Statehouse, with the hotline on the lawmakers' agenda.

Critics have complained that the system wrests control from local officials with local knowledge and that too many cases are now deemed unworthy of investigation.

Many in the Steele survey echo these complaints and raise many others: critical delays in response, a lack of follow-up, miscommunication, incompetence and, in some cases, an unwillingness to acknowledge and address problems.

Asked about the survey, DCS declined to make any officials available for interviews, instead releasing a written statement from DCS Chief of Staff John Ryan. The agency is aware of the issues raised in the survey, Ryan said, and they align with what administrators heard at a May 15 public forum in Bedford.

There, officials spoke out about various concerns in Lawrence County and Morgan County.

Steele was at that meeting. DCS hotline director Andrea Goodwin "seemed surprised" by the revelations, Steele said, and she said she hadn't heard similar complaints in other counties around the state.

"That," Steele said, "just didn't make sense to me." * * *

[S]everal officials who responded to Steele's survey told him they had brought their concerns to DCS officials in the past but had not heard back.

Henry County Judge Mary Willis described meeting with Goodwin in October 2010 because of "the serious nature" of issues raised by volunteers, probation officers, school workers and law enforcement officers. "Specific examples were provided to her," Willis said. "Little solution was provided."

Willis had her own experience with the hotline that year that troubled her. She heard testimony in court about a child who had been "abandoned by her parents and left with a slightly older sibling in a house with minimal utilities, no food or money or necessary medication."

So Willis called the hotline. "I was hung up on initially by the hotline operator," Willis wrote, "then screened out since I did not 'witness' any abuse personally."

The Department of Child Services Interim Study Committee is meeting this afternoon at 1 PM. You may watch it online via the link provided on the meeting agenda. The agenda itself portends a long afternoon.

Posted by Marcia Oddi on Wednesday, August 22, 2012
Posted to Indiana Government

Environment - "Indiana Clean Water Act violations rising, seldom punished"

From the Sunday, August 20th Fort Wayne Journal Gazette, an article by Dan Stockman that begins:

FORT WAYNE – Nearly three out of every four facilities in Indiana operating under the Clean Water Act broke that law in 2009, EPA data show, but of all those violators, only one-third faced any kind of sanctions.

The violations ranged from failing to follow schedules; permitting and reporting problems; to the most severe – polluting the state’s waterways.

And though 73 percent of permit holders – from factories to municipal sewer systems – broke the law, the EPA reported, not one of them paid a financial penalty that year. Anyone who discharges waste into a river, lake or stream must have a Clean Water Act permit.

According to the EPA database, only 23 of the state’s 1,194 violators faced formal enforcement actions, in which they were required to make changes or fix problems. An additional 377 – 32 percent of violators – faced only “informal” enforcement, in which the Indiana Department of Environmental Management sent them a letter notifying them they were breaking the law, the EPA says. The rest saw nothing.

IDEM officials say the EPA database is inaccurate.

More from the story:
[Bruno Pigott, IDEM’s assistant commissioner for the Office of Water Quality] said there were 179 formal enforcement actions in 2009, not the 23 the EPA reported, but admitted some of those were for drinking water violations, not Clean Water Act issues. He did not know how many of each there were. [ILB: See below for answer]

David Van Gilder, a Fort Wayne attorney and Hoosier Environmental Council board member, was astounded that the EPA reports nearly three out of every four Clean Water Act permit holders had broken the law.

“Whoa! Seventy-three percent?” Van Gilder said. “There are penalties that can be imposed. These fiscal guys that are looking for money, there it is.”

He was then informed that no financial penalties had been assessed that year.

“Zero? That’s just ridiculous,” he said.

That is especially distressing, Van Gilder said, because enforcement of environmental laws should pay for itself – the penalties imposed on violators should cover the cost of investigating and prosecution violations. * * *

IDEM’s Pigott said the state agency is especially vigilant about major permit holders, and said that when violations do occur, the agency negotiates an Agreed Order, a legally binding agreement in which the facility makes required changes, often pays a fine, and agrees to more fines and sanctions if the requirements of the order are not met.

“If they’re in significant noncompliance, we’ve got them under an Agreed Order,” Pigott said. “The facilities in Indiana, when they’re not in compliance, we’re taking action.”

Van Gilder said a major factor in Indiana’s lack of enforcement is its willingness to negotiate with polluters rather than requiring them to follow the law.

“The thinking in Indiana is, ‘let’s solve the problem.’ And then you negotiate how to do that,” Van Gilder said. “But while they’re dithering, another billion gallons goes into the river.” * * *

Pigott said he wants Hoosiers to know that IDEM is enforcing environmental laws, whatever the EPA data say.

“It’s easy to make a broad-brush stroke statement that nothing is happening, but the reality is a lot is happening,” Pigott said.

“I believe we’re really doing good work.”

ILB: Odd that Mr. Pigott doesn't know the answer. IDEM's own records show:Today the Journal Gazette has an editorial based on Sunday's story.

Posted by Marcia Oddi on Wednesday, August 22, 2012
Posted to Environment

Tuesday, August 21, 2012

Ind. Courts - Judge Pyle to take oath of office on August 27th

From the Court of Appeals:

INDIANAPOLIS – Judge Rudolph R. Pyle III will take the oath of office as the newest member of the Court of Appeals of Indiana in a private Statehouse ceremony at 11 a.m. on Aug. 27. Chief Judge Margret G. Robb will administer the oath.

Judge Pyle’s public robing ceremony will be at 3 p.m., Oct. 16 in the Supreme Court courtroom. Other details are pending.

Pyle was named to the Court of Appeals by Gov. Mitch Daniels on Aug. 7. Prior to his appointment, he served as judge of the Madison Circuit Court. Pyle succeeds retired Judge Carr L. Darden, for whom he clerked from August 2000-February 2004.

Pyle’s appointment is to the court’s Fourth District, which means he will stand for retention on statewide ballots in 2014.

Posted by Marcia Oddi on Tuesday, August 21, 2012
Posted to Indiana Courts

Ind. Gov't. - "Public Records Requests Will Take Longer In Monroe County"

Hannah Bolton reports for Indiana Public Media:

New procedures regarding public access to files in Monroe County will slow the way the public obtains some information about criminal cases.

Starting Monday, the public must request a file at least 24 hours in advance before viewing it.

The change arises from two recent pieces of legislation: one which expunges some criminal records after five years and another which restricts access to records of court cases where defendants were charged with a crime but never convicted or had their convictions vacated.

Monroe County Clerk Linda Robbins says her office will now limit public access in an effort to comply with the new privacy regulations.

“The problem with this is we will have a file with just the confidential sticker on it. But that indicates that there was a file,” says Robbins, “and the public can’t know that there was ever a file.

The story concludes:
Robbins says the changes will cost her department around $250,000 – mostly for digitizing of all the records and hiring a full-time employee to process record requests.
Hmm. What about the Chronological Case Summaries available for Monroe County via Odyssey. And of course the Access to Public Records law?

Posted by Marcia Oddi on Tuesday, August 21, 2012
Posted to Indiana Government

Ind. Law - "Alleged Violation of the Access to Public Records Act by the Warrick County Superior Court II"

Here are some quotes from the Public Access Counselor's August 13th response to Formal Complaint 12-FC-212:

On June 29, 2012, you inquired with the Court about obtaining an audio copy of hearings that occurred on May 2, 2012 and June 28, 2012. You were informed that the Court does not have the means or equipment to produce an electronic copy of the hearing. The Court informed you that the cost to have the hearings transcribed would be approximately $1000 for the six hours of hearings. On August 3, 2012, you submitted a request to the Court to arrange an opportunity to listen to the audio recordings. You were informed by the Court that you were not allowed to listen to the hearings. You advise that you do not have the necessary funds to pay the $1000 fee in order for written transcripts to be prepared and believe that the APRA allows you the right to listen to the audio recordings. You further advise that you filed a similar formal complaint with the Public Access Counselor’s Office regarding this issue in 2010.

In response to your formal complaint, Judge Aylsworth advised that if the Court were to receive written authority from the Indiana Supreme Court or the Indiana State Court Administration allowing it to provide audio copies of hearing, copies of the requested hearings would be provided. The Court cited to a 2010 order issued in the civil proceeding that addressed your previous request for audio recordings. * * *

The Indiana Supreme Court, Division of State Court Administration’s Public Access to Court Records Handbook (“Handbook”) provides the following guidance regarding requests for audio recordings of a court proceeding:

Recordings of court proceedings made by court reporters are public records regardless of whether they are produced on magnetic recording tape, compact disk, stenotype, shorthand or digitally recorded upon a computer hard drive unless the specific case type is confidential under Administrative Rule 9. * * *

Providing a copy of the record is probably the most efficient and least time consuming method to provide public access. A reasonable charge for the production of the copy may be made and guidance on this issue may be found in I.C. § 5-14-3-8. * * *

Requiring the purchase of a transcript would be so costly in many cases as to constitute a denial of access to the public record unless the requestor desires to obtain the record in that format. Given the time required to produce a transcript and the other duties of reporters, the reasonable time for producing the record may well lead the requestor to ask for a different format. If the case is on appeal, a copy of the transcript could be obtained from the Clerk upon its completion and filing.

In situations where the requested record results in provision of an audio and/or audiovisual copy of a court proceeding, the judge should issue an order specifically limiting its use and barring the recipient from broadcasting the received record in any manner. Public Access to Court Records Handbook, Indiana Supreme Court, Division of State Court Administration, July 2010, 49-50.

Based on the foregoing, it is my opinion that the Court has failed to meet its burden to demonstrate that its denial of your request for audio recordings was proper under the APRA.
ILB: One notable aspect of the quote from the Handbook is that the statement that "In situations where the requested record results in provision of an audio and/or audiovisual copy of a court proceeding, the judge should issue an order specifically limiting its use and barring the recipient from broadcasting the received record in any manner." The PAC opinion also points to Rule 10. Security of Court Records and this official comment to the rule itself:
The court is required to preserve the integrity of audio and video recordings of court proceedings. The judge may employ various methods for ensuring the recording is not altered, including but not limited to supervised playback for listening or copying, creating a copy of the recording for use during said playback, serving notice to the parties that the recording is being accessed, and providing a copy, clearly identified as such. As prescribed by Indiana Judicial Conduct Rule 2.17 [former Canon 3(B)(13)], because the court is further required to prohibit broadcasting or televising court proceedings, the court may employ methods to restrict publication of copies of court proceedings made during the pendency of the case.

Posted by Marcia Oddi on Tuesday, August 21, 2012
Posted to Indiana Law

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

For publication opinions today (1):

In Jason Fields v. State of Indiana , an 8-page opinion, Judge Najam writes:

Jason Fields appeals his convictions for two counts of dealing in methamphetamine, as Class B felonies, following a jury trial. Fields presents a single issue for review: whether the trial court abused its discretion when it answered a question from the jury about the meaning of one of the final instructions. We affirm. * * *

The question presented was a narrow point of law, which the trial court answered succinctly and without any elaboration. The trial court neither modified the final instructions nor gave an additional instruction. Fields has not shown that the trial court erred when it answered the jury’s question. As such, Fields has not shown that the trial court abused its discretion when it denied his motion for mistrial.

NFP civil opinions today (1):

Brandon E. Klein v. K.J. (NFP)

NFP criminal opinions today (13):

Gary Watts v. State of Indiana (NFP)

Michael Cochran v. State of Indiana (NFP)

Freddie Boggess v. State of Indiana (NFP)

Mark Williams v. State of Indiana (NFP)

Leonard Dewitt v. State of Indiana (NFP)

Cody Hunt v. State of Indiana (NFP)

Gregory Vories v. State of Indiana (NFP)

Reginald Lee v. State of Indiana (NFP)

Michael Timothy Dean v. State of Indiana (NFP)

Christopher Davis v. State of Indiana (NFP)

Bruce Lee William v. State of Indiana (NFP)

John Norton, Jr. v. State of Indiana (NFP)

Giorgio E. White v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 21, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: News in the in widely-watched Christine Bunch arson case

Updating this ILB entry from Friday, Charles White of the AP reported yesterday:

The Indiana Court of Appeals on Friday ordered a Decatur County court to either reinstate Kristine Bunch's original $5,000 bond or hold a new bond hearing. The local judge scheduled a hearing for 3 p.m. Wednesday, beating a court-imposed deadline by one hour.

Bunch's attorney, Ron Safer, said Monday that he doubts the local court will set Bunch's bond any higher than it did in 1996, even though bond in murder cases is rare.

"I can't think of any reason on the face of the earth why the bond would be any higher than it was," Safer said.

"There was some doubt even then, and now there's a huge doubt that there was even a crime that was committed," he added. Bunch's lawyers have argued that scientific advances now show there was no evidence of arson in the 1996 mobile home fire.

The appeals court overturned the 38-year-old Greensburg woman's conviction in March, and the Indiana Supreme Court allowed the ruling to stand, setting the stage for a new trial.

Safer said Bunch is eager to get out after spending 16 years in the state women's prison, where she earned a GED and a paralegal degree.

"She's ecstatic. She's more patient than I am. But, you know, she can't wait to breathe fresh air, free air," Safer said in a phone interview. * * *

An Indiana Court of Appeals panel ruled 2-1 in March that Bunch should receive a new trial because the evidence used to convict her was outdated, weak and wrongly withheld from the defense. It said prosecutors should have provided her defense with a lab report from the Bureau of Alcohol, Tobacco and Firearms that allegedly found no trace of kerosene in her son's bedroom, as prosecutors alleged. The boy died of smoke inhalation.

The Center on Wrongful Convictions at Northwestern University School of Law took up the woman's case, saying investigators at the time misinterpreted burn patterns caused by a flashover as marks from accelerant and that there was no evidence of arson. They also argued advances in toxicology showed the child would have died from fire, not smoke, had the blaze been set in his room.

Safer, a private attorney who is handling the case pro bono, also said prosecutors had no evidence of a motive in the case. Neither the home nor Bunch's son, Tony, was insured, he said.

Posted by Marcia Oddi on Tuesday, August 21, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - Will this be the year for sentencing reform?

The Criminal Code Evaluation Commission will meet for the first time this year on Thursday, Sept. 6th.

The Committee's page now has a link to a 365-page, over 9 MB, document titled "Criminal Code Evaluation Commission Review of Criminal Code." It has an excellent introduction, including the project's history and setting out these "principles of the review":

On August 20th, Maureen Hayden of CNHI Statehouse Bureau Chief reported on the review in the New Albany News & Tribune:
INDIANAPOLIS — Indiana’s criminal code may be in for some sweeping changes, including more levels of felonies, tougher penalties for the worst violent and sexual crimes, and less prison time for low-level drug crimes.

A 375-page report, crafted at the direction of the legislature, calls for overhauling the state’s criminal laws to make punishment more proportionate to the crime.

The report, submitted in late July to the state’s Criminal Code Evaluation Commission, is likely to be the framework for major legislation in the next session and the impetus for reviving the sentencing reform effort that died last year.

Among the changes recommended that reflect concerns about the disproportionate penalties in the current code is changing the penalty for possessing three grams of cocaine within 1,000 feet of a school yard so it no longer carries a harsher penalty than rape.

The report is the product of a group of prosecutors, public defenders and other attorneys who were assigned by the commission to take a comprehensive look at the state’s criminal code. The working group was led by Deborah Daniels, a former U.S. Attorney and the sister of Gov. Mitch Daniels.

Indiana’s criminal code hasn’t been revised since 1977 and since then the Indiana General Assembly has added a lot more crimes with much stiffer sentences, but did so in a piecemeal fashion.

Criminal Code Evaluation Commission chairman Ralph Foley said legislators who took a “tough on crime” approach in the past did so without considering the escalating costs of locking up more offenders or making sure there were like penalties for like crimes.

“The Indiana constitution requires proportionality,” Foley said.

The recommendations in the report are sweeping, but only cover felony crimes. It doesn’t address the state’s traffic laws nor does it proscribe specific penalty ranges.

But it does strongly recommend that Indiana broaden the levels of felonies, moving from its current four levels to six levels. That change would allow prosecutors and judges to better sort out the seriousness of crimes and the penalties they carry. A person convicted of causing “serious bodily injury” to a victim during a burglary could be charged at a higher level — and face more prison time — than a person convicted of causing less serious injury to a victim during a burglary.

Another major change: A felony theft charge would be based on the value of the object stolen. Currently, a prosecutor can charge a felony theft no matter the stolen item’s value. The report recommends Indiana follow other states by creating a theft threshold: A stolen item would have to be worth $750 before a prosecutor could bring a class D felony charge.

The report recommends increasing the penalties for the worst sex offenders, and for offenders who are violent, who use weapons or repeatedly commit the same kind of crime. The report also recommends the elimination of an “early release” program that allowed a convicted sex offender to reduce his eight-year sentence to less than two years by earning a college degree while in prison.

Andrew Cullen, legislative liaison for the Indiana Public Defender Council and a member of the working group that wrote the report, said there are some recommendations in the report where prosecutors and public offenders didn’t agree. “But the members of the committee agreed on the vast majority of recommendations made on the crimes we evaluated,” Cullen said.

State Sen. Randy Head, a Republican from Logansport and former prosecutor who sits on the Criminal Code Evaluation Commission said the report is still a “working document” that needs to be reviewed and approved by commission members. But Head, who’d opposed the 2011 sentencing reform effort in part because it failed to address violent crimes, said the wide-ranging scope of this latest report is a good sign.

“We may not agree with all the recommendations,” Head said. “But the report gives us a more comprehensive look at the problem.”

Posted by Marcia Oddi on Tuesday, August 21, 2012
Posted to Indiana Law

Monday, August 20, 2012

Ind. Decisions - Transfer list for week ending August 17, 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, August 17, 2012. It is one page (and 8 cases) long.

One transfer was granted last week, albeit momentarily. The note on Alex Fernando Carrillo v. State of Indiana reads:

Transfer Granted, vacated order dismissing this appeal, and remanded to the Court of Appeals - All Justices concur.
More detail: The Clerk's docket indicates the Appeal was dismissed by the COA with prejudice on 4/26/12. On 8/13/12 the Supreme Court entered this order:
ACCORDINGLY, WE GRANT TRANSFER OF JURISDICTION PURSUANT TO APPELLATE RULE 58, VACATE THE ORDER DISMISSING THIS APPEAL, AND REMAND THE APPEAL TO THE COURT OF APPEALS SO IT MAY ADDRESS THE MERITS. IN DOING SO, WE EXPRESS NO OPINION ON THE MERITS, BUT WE DO NOTE THAT THE APPEAL WAS DISMISSED BEFORE BRIEFS WERE FILED, SO WE DIRECT THAT CARRILLO FILE HIS MAIN APPELLANT'S BRIEF NO LATER THAN SEPTEMBER 21, 2012, UNLESS THE COURT OF APPEALS ORDERS OTHERWISE.
ROBERT D. RUCKER, ACTING CHIEF JUSTICE
ALL JUSTICES CONCUR.

Posted by Marcia Oddi on Monday, August 20, 2012
Posted to Indiana Transfer Lists

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

In Resendez v. Smith (SD Ind., Barker), an 11-page opinion, Circuit Judge Tinder writes:

Joshua Resendez appeals the district court’s dismissal of his petition for a writ of habeas corpus, contending that the State denied him of his constitutional right to counsel in a sentence correction proceeding under Indiana Code § 35-38-1-15. At first blush, this case appears to present the question whether a § 35-38-1-15 proceeding is properly classified as a direct or collateral proceeding for federal habeas purposes. But we need not reach that question because we conclude that Resendez’s claims may not be presented via a § 35-38-1-15 motion. * * *

We conclude that Resendez’s motion to correct sentence was not a motion pursuant to Ind. Code § 35-38-1- 15 but a collateral attack on his sentence. Therefore, he had no constitutional right to counsel, see Finley, 481 U.S. at 557, and the district court did not err in denying him habeas relief. We do not reach whether a proper motion pursuant to § 35-38-1-15 qualifies as a direct or a collateral proceeding or whether there is a constitutional right to counsel in such a proceeding.

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

Ind. Decisions - One Friday from Tax Court

In Wireless Advocates, LLC v. Indiana Department of State Revenue, a 6-page opinion, Judge Wentworth writes:

Wireless Advocates, LLC appeals the Indiana Department of State Revenue’s final determination denying its claim for refund of adjusted gross income tax for the 2006 tax year. The matter is currently before the Court on the Department’s Motion to Dismiss (Motion) for failure to state a claim upon which relief may be granted. The Court finds the Motion should be denied. * * *

On September 26, 2011, Wireless Advocates filed a Notice of Appearance and a Verified Petition for Judicial Review to which it attached a three-page letter, the Department’s order denying its refund claim, a postal receipt, a certified mail receipt, and the power of attorney it executed for the administrative proceedings. Thomas Gaisser, a member, vice-president, and chief financial officer of Wireless Advocates, signed the Verified Petition and Notice of Appearance. * * *

The Department initially explains that Indiana does not require limited liability companies to be represented by counsel in court, in contrast to corporations. Accordingly, the Department invites the Court to create such a rule as a matter of first impression in this state. The Department then asks the Court to dismiss this case because Wireless Advocates, a limited liability company, could not initiate this appeal itself; Gaisser, as a non-attorney, could not initiate this appeal on Wireless Advocates’s behalf; and Gaisser engaged in the unauthorized practice of law by signing and filing the Verified Petition and Notice of Appearance. The Court declines to invent such a rule where one does not currently exist. Thus, the Court consolidates the Department’s several issues into the one dispositive issue: whether dismissal is the proper remedy in this case. * * *

When a corporation prosecutes or defends its case pro se and its opponent contests such representation, Indiana courts generally have given the corporation an opportunity to retain counsel, which the corporation must refuse before dismissing the action. See, e.g., State ex. rel. Western Parks v. Bartholomew Cnty. Ct., 383 N.E.2d 290, 292-93 (Ind. 1978) (prohibiting a court from exercising its jurisdiction until the plaintiff-corporation obtained counsel). Indeed, the Indiana Court of Appeals has explained that a “corporate litigant must be given a fair opportunity to correct its error and retain competent counsel before dismissal would be appropriate.” Christian Bus. Phone Book, Inc. v. Indianapolis Jewish Cmty. Relations Council, 576 N.E.2d 1276, 1277 (Ind. Ct. App. 1991). Furthermore, over twenty years ago this Court noted that while an appeal initiated by a non-attorney on a corporation’s behalf is procedurally defective, the defect is curable. Sherry Designs, Inc. v. State Bd. of Tax Comm’rs, 589 N.E.2d 285, 285 n.1 (Ind. Tax Ct. 1992). * * *

Therefore, the Court finds that Wireless Advocate’s petition does not deserve the terminal result of dismissal. Accordingly, the Department’s Motion is DENIED, and the Court ORDERS the Department to file its Answer within thirty (30) days of the date of this Order.

Posted by Marcia Oddi on Monday, August 20, 2012
Posted to Ind. Tax Ct. Decisions

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

For publication opinions today (0):

NFP civil opinions today (3):

Cynthia Sue Damron v. GMAC Mortgage, LLC (NFP)

In Re the Paternity of A.W., T.W. v. J.P. (NFP)

James Johns v. Pike County Commissioners (NFP)

NFP criminal opinions today (1):

James E. True v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 20, 2012
Posted to Ind. App.Ct. Decisions

Law - "Alabama Man Fights To Keep Wife Buried In Front Yard"

The ILB has had several entries on home burial from both southern Indiana and Connecticut. Today a number of news outlets (including USA Today) are running this AP story. A few quotes from the long story:

STEVENSON, Ala. – James Davis is fighting to keep the remains of his late wife right where he dug her grave: In the front yard of his home, just a few feet from the porch.

Davis said he was only abiding by Patsy Ruth Davis' wishes when he buried her outside their log home in 2009, yet the city sued to move the body elsewhere. A county judge ordered Davis to disinter his wife, but the ruling is on hold as the Alabama Civil Court of Appeals considers his challenge. * * *

While state health officials say family burial plots aren't uncommon in Alabama, city officials worry about the precedent set by allowing a grave on a residential lot on one of the main streets through town. They say state law gives the city some control over where people bury their loved ones and have cited concerns about long-term care, appearance, property values and the complaints of some neighbors.

"We're not in the 1800s any longer," said city attorney Parker Edmiston. "We're not talking about a homestead, we're not talking about someone who is out in the country on 40 acres of land. Mr. Davis lives in downtown Stevenson."

A strong libertarian streak runs through northeast Alabama, which has relatively few zoning laws to govern what people do with their property. * * *

After his wife died on April 18, 2009, the City Council rejected Davis' request for a cemetery permit. The decision came even though the county health department signed off on the residential burial, saying it wouldn't cause any sanitation problems.

Ignoring the council's decision, Davis said he and a son-in-law cranked a backhoe and dug a grave just a few feet from the house. A mortuary installed a concrete vault, and workers lowered Patsy's body into the plot in a nice, metal casket.

The city sued, and the case went to trial early this year. That's when a judge ordered Davis to move his wife's remains to a licensed cemetery. That order is on hold to give the state appeals court time to rule. * * *

While state officials say they don't know how many people might be buried on residential lots in Alabama, burials on private property in Alabama are not uncommon, said Sherry Bradley, deputy environmental director for the state Department of Public Health.

While the state can regulate cemeteries, Bradley said it doesn't have any control over family burial plots. The city contends the grave at Davis' home is an illegal cemetery that falls under government oversight, said Edmiston, the city lawyer.

If nothing else, Edmiston said, the appeals court might decide what constitutes a "family burial plot" in Alabama, and what's a cemetery.

Posted by Marcia Oddi on Monday, August 20, 2012
Posted to General Law Related

Ind. Law - Interim legislative committee to meet on criminal history providers, the sex offender registry, and SORNA

The interim Criminal Law and Sentencing Policy Study Committee* will be meeting for the first time this year at 10 AM on Thursday, Aug. 23.

Here is the agenda. Three important topics are listed.

The agenda notes: "Please contact Mark Goodpaster at MGOODPAS@iga.in.gov or 317.232.9852 if you have questions or wish to testify at this meeting. The meeting will be videocast.
_________
*Not to be confused with the Criminal Code Evaluation Commission, which is meeting on Thursday, Sept. 6th. Here is the agenda.

More on SORNA and Indiana's registry. Maureen Hayden of CNHI had a long story this weekend in several papers, including the New Albany News & Tribune and the Pharos Tribune, headed "Indiana sex-offender registry laws fall short of stricter national standards." Some quotes:

INDIANAPOLIS — Indiana, along with 34 other states, is out of compliance with a federal law that requires states to adopt strict standards for registering sex offenders and monitoring their whereabouts.

The federal law was passed in 2006, in response to a series of heinous crimes committed by fugitive sex offenders, including Joseph Edward Duncan III, a serial child molester on the federal death row in Terre Haute for the 2005 kidnap, torture and killing of a 9-year-old boy.

The law was supposed to launch an aggressive 50-state effort to keep better track of offenders like Duncan, who was a registered sex offender in one state, while out on bond on a child molesting charge in another state, when he was committing sex crimes and murder in a third state.

But that effort has been slowed down by questions about the costs of its implementation, concerns that the federal law trumps state policies and practices already in place, and fears that states will face an avalanche of lawsuits if they follow the federal rules.

An Indiana legislative study committee is taking up the issue this summer, in part because of questions about the accuracy of the state’s Sex and Violent Offender Registry, which contains more than 9,000 sex offenders. It’s on the agenda for the Aug. 23 meeting of the Criminal Law and Sentencing Policy Study Committee.

“There are some policy issues involved that only the legislature can address,” said Steve Luce, executive director of the Indiana Sheriff’s Association, which manages the registry’s public website with support from the Indiana Department of Corrections.

Late last year, Indiana — along with many states — was penalized by the U.S. Department of Justice for its failure to “substantially implement” the federal law, known as the Sex Offender Registration and Notification Act, or SORNA.

The penalty was the loss of about $165,000 in federal funds for state law enforcement. Indiana got the money back this year, but it can only be used to move toward implementing SORNA. States can be penalized for every year they don’t meet SORNA standards. * * *

Indiana Deputy Attorney General Tom Quigley said Indiana meets some of SORNA’s standards, but not all. Quigley said SORNA is more stringent than most state sex offender registry laws, including Indiana’s.

To comply with SORNA, Indiana would need to broaden the definition of sex offenses, raise the minimum number of years that a sex offender would have to stay on the state’s registry [from 10 years to 15], and give up some discretion in how it handles juvenile sex offenders. * * *

State Rep. Ralph Foley, the Republican chairman of the Criminal Code Evaluation Commission who’s retiring from the legislature this year, said the Indiana General Assembly may resist changing how the state deals with sex offenders just to meet to a federal mandate.

“It’s annoying when Congress prescribes a one-size-fits-all solution that every state must follow. We [the legislature] don’t have any trouble doing that to local government, but have a lot of trouble taking that from Congress.”

Complying with SORNA would likely mean more work for Indiana’s 92 county sheriffs, charged with monitoring the sex offenders living in their communities. SORNA increases the amount of personal information that the sheriffs have to collect and verify. Under SORNA, sex offenders deemed especially dangerous would be required to renew that registration information, in person, four times a year for the rest of their lives. * * *

Complying with SORNA may trigger a new round of litigation, mirroring some of the past legal challenges to Indiana’s sex offender registry law. They center on the requirement that adults whose crimes were committed before the 1994 state law was passed were later required to register as sex offenders. That set off a wave of challenges to the law from those offenders, who argued it was unconstitutional for the state to apply the law retroactively.

It also led to the current problems with the Indiana Sex and Violent Offender Registry. Three years ago, the Indiana Supreme Court ruled in favor of a sex offender, Richard P. Wallace, convicted in 1989, who argued that he shouldn’t be required to register for an offense committed before the statewide registry was created.

That ruling applied to hundreds of other offenders whose names were added to the registry retroactively. But the ruling has also been interpreted differently across the state. Some county sheriffs cleared their registries of offenders who fell under the Wallace ruling. Others decided those offenders would need to get a court order to be removed. The state Department of Corrections thinks they need to stay on as well.

But even those so-called Wallace offenders that remain on the registry are no longer required to report where they live. Their old addresses remain on the registry. There’s no indication if they live still there — or if someone else now lives at that address.

Posted by Marcia Oddi on Monday, August 20, 2012
Posted to Indiana Law

Ind. Law - More on: Columnist critical of new court pro bono fee that replaces IOLTA

Updating this ILB entry from August 16th, J. Mark Robinson, President of the Indiana Bar Foundation, has responded with the following letter addressed to the News & Tribune. Here is an advance look:

Dear Editor:

The funding for the Indiana Pro Bono Commission that Debbie Harbeson objected to (August 16) enables low income individuals seeking assistance with issues like child support, custody, domestic violence, and foreclosure to be matched with an attorney who has offered to volunteer their time and professional expertise. In 2011, this program allowed hundreds of attorneys to work over 25,000 hours on thousands of civil cases. The lawyers who volunteer to work on these cases do not receive any attorney fees for these services. The funding supports local districts established by the Indiana Supreme Court who work on matching those in need with attorneys willing to volunteer their time, screening applicants for financial need, and providing other necessary services.

Ms. Harbeson's opinion piece should have been titled "Innovative Solution Improves Access to Justice." These cases represent some of the most important moments and issues in people's lives. The fact that attorneys are willing to volunteer to assist them speaks to the honor of our profession. The fact that Senator Brent Steele, Senator Ron Grooms, and Representative Steven Stemler and others worked in a bi-partisan way to solve an enormous problem without a tax increase, speaks to the quality and dedication of our public servants.

Because the IPBC has been funded historically by Interest on Lawyers Trust Accounts (IOLT A), and now the small temporary one dollar filing fee increase, tax payer dollars are not used to support this program. Just like motorists pay fees that support roads, the IPBC is supported by people who avail themselves of the civil justice system. By enlisting the volunteer services of lawyers, this program allows the civil justice system to be more efficient and provide greater protection to low income Hoosiers who may not be able to adequately protect their rights.

Posted by Marcia Oddi on Monday, August 20, 2012
Posted to Indiana Law

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

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

From Sunday, August 19, 2012:

From Saturday, August 18, 2012:

From late Friday, August 17, 2012:

Posted by Marcia Oddi on Monday, August 20, 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 8/20/12):

Next week's oral arguments before the Supreme Court (week of 8/27/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/20/12):

Tuesday, August 21

Next week's oral arguments before the Court of Appeals (week of 8/27/12):

Tuesday, August 28

Wednesday, August 29

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, August 20, 2012
Posted to Upcoming Oral Arguments

Sunday, August 19, 2012

Courts - "Kentucky: County attorney battles requests to erase misdemeanor convictions"

From the Louisville Courier Journal, this lengthy story from Jason Riley that begins:

To the dismay of some judges and attorneys, the Jefferson County attorney’s office has started making it much more difficult for misdemeanor offenders to get old convictions erased.

Kentucky’s law allowing expungement of some minor offenses was intended to give a second chance to those who show they’ve turned their lives around. Thousands have taken advantage of the expungement law every year, often in an effort to improve their chances of getting a job.

But since April, the county attorney’s office has taken a hard line on expungements, fighting requests by anyone who has had any new violation since the original offense — even if the new violation is as minor as a traffic ticket.

The prosecutor’s office says it’s simply following Kentucky law, which says expungement isn’t allowed for anyone convicted of a “felony, misdemeanor, or a violation” in the five years before the conviction as well as anytime after.

But others, including some judges and attorneys, say the county attorney’s office is defining “violation” too strictly and in a way that’s counter to the definition in a separate law.

Posted by Marcia Oddi on Sunday, August 19, 2012
Posted to Courts in general

Ind. Gov't. - More on "DCS changes tough, but for the best"

Evansville state representative Gail Riecken responds here on Aug. 18th to the Aug. 15th Andrea Neal column. It begins:

Andrea Neal’s column (“A long road on child welfare,” Aug. 15) about the state’s Department of Child Services highlighted the very concerns that worry so many of us who are disturbed about the agency and other departments under this administration.

More specifically, we are concerned that this column continues to advocate a delivery of services promoted by this administration that runs contrary to DCS’ goal of protecting the safety of children.

By describing these concerns in simplistic terms that reduce them to complaints that range from “DCS is taking too many kids” to “DCS is not taking enough kids,” the Daniels administration prefers to simplify issues rather than understand the root causes of the problems that so many of us have with this agency and its leader.

When the common refrain of “standardizing services” is used to explain changes made to any state department — be it DCS or the Family and Social Services Administration or the Department of Workforce Development in its handling of unemployment insurance claims — what it truly means is that experienced, trained local departments are being ravaged in order to bring all resources to a centralized location in Indianapolis.

Posted by Marcia Oddi on Sunday, August 19, 2012
Posted to Indiana Government

Ind. Gov't. - Continuing with: "Clark airport loses eminent domain lawsuit, owes $600,000"

Updating four earlier ILB entries, Matt Koesters' report August 17th brings the story up-to-date. The first paragraph tells it all:

JEFFERSONVILLE — Unless the Indiana Court of Appeals sees things Clark County’s way, it looks like the county will pay an $865,000 judgment for 72 acres of land acquired by the Board of Aviation Commissioners through eminent domain last year.

Posted by Marcia Oddi on Sunday, August 19, 2012
Posted to Indiana Government

Ind. Gov't. - "Mitchslapped? Judge who criticized DCS facing state sanction"

Really, this column today by Douglas Walker and Keith Roysdon in the Muncie Star Press takes the cake! They speculate that somehow the charges filed last week with the Supreme Court by the Judicial Qualifications Commission against Judge Peter Nemeth of South Bend were inspired by the Daniels administration, brought on by Nemeth's criticism of the DCS:

Over the past year, with controversy growing over changes made in the operation of the Indiana Department of Child Services by its director, ex-Marion County Judge James Payne, no current judge has been more outspoken in his criticism than St. Joseph County Judge Peter Nemeth, a former South Bend mayor who has presided over his northern Indiana court for nearly two decades.

Nemeth's comments about the operation of DCS under Payne — an appointee of Gov. Mitch Daniels — have appeared in newspapers from across Indiana, including The Star Press. * * *

Some Delaware County attorneys last week speculated hard-ball politics could be a factor in Nemeth's plight. Understandably, none wanted to share their theories on the record.

If that suggestion is widely circulated, it's at least possible some Purdue University staff members might think twice before publicly airing complaints once a new administration is in place on the West Lafayette campus early next year.

Really! The column makes one incredible jump after another.

Posted by Marcia Oddi on Sunday, August 19, 2012
Posted to Indiana Government

Vacancy #2 on Supreme Court 2012 - "Daniels’ decision can right a wrong"

So says the Fort Wayne Journal Gazette in a Sunday editorial. Quoting editorials from the Lafayette and Richmond papers, the editorial continues:

Both newspapers echo sentiments we’ve expressed here since 2010, when Gov. Mitch Daniels passed over a well-qualified Marion Court judge, Robyn Moberly, to preserve Indiana’s embarrassing status as one of three states with no women on its highest court. He did it again in March when he appointed Mark Massa, his former general counsel, over Jane Seigel, executive director of the Indiana Judicial Center.

The Judicial Nominating Commission’s decision to elevate two of the original six male applicants and just one of the original 16 female applicants doesn’t bode well for a better outcome. But the two male candidates are lacking the simple qualification demanded by the vacancy. Judge Loretta Rush of Tippecanoe Superior Court is recognized throughout the state as an outstanding jurist. Her appointment is the only one to give proper balance given that the courts routinely weigh decisions shaped by gender differences. Rush is the best and only choice for the Indiana Supreme Court.

The other Fort Wayne paper, the News-Sentinel, worried in an editorial last week:
[P]utting all this pressure on the governor makes it harder for him to choose the best person. He is in a no-win position. If he appoints a man, he looks insensitive to half the population. If he appoints a woman, it looks like he caved in. How can even he be sure he’s concentrating only on the appropriate issues?

Posted by Marcia Oddi on Sunday, August 19, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Gov't. - Another look at the one-year cooling off period, as it applies to the Governor

This August 15th story by Elle Moxley in StateImpact, is headed "Mitch Daniels Says He’s Being Careful Not To Violate The Ethics Rules He Created." It begins:

The ethics rules Mitch Daniels created shouldn’t bar the governor from lobbying for Purdue University. But the governor says he’s still asking questions after two state ethics experts gave him the all clear.

“I keep sending back questions to make triple certain, but it appears there’s just no issue at all,” Daniels told WFIU’s Sara Wittmeyer.

The governor is headed to Purdue University when his term expires in January. When the Board of Trustees announced his selection in June, we asked if Daniels would be subject to a one-year “cooling off” period before he could advocate on behalf of the university.

Daniels wondered, too. He asked for opinions from David Thomas, inspector general, and Tim Grogg, the director of executive branch lobbying. Both told the governor they saw no conflict, though only the full ethics commission can write an official opinion. That’s what Daniels is seeking now. He says:

Indiana had one of the weakest ethics situations in the country when we first came to the office. And one of the first things on the first day I did by executive order was create a ‘revolving door’ rule and an inspector general to enforce that, as well as whistleblower protections and other things. We later fought that through into law. You can imagine I’m extremely conscious of staying way within all such boundaries.
This August 11th story [may be unavailable already] by Eric Weddle of the Lafayette Journal Courier was headed "2 lobbying thumbs up for Daniels." It reported:
When Gov. Mitch Daniels becomes Purdue University president next year, he will be free to exert pressure on former colleagues at the Statehouse for funding and other matters, Indiana's top official on ethics issues said in an informal opinion released Friday.

Since being elected Purdue's 12th president in June, some have questioned whether a one-year "cooling off period" required by the State Ethics Code would apply to Daniels in 2013. The code is intended to keep former public employees from working as lobbyists for a year after leaving a state job.

Earlier this summer, Daniels even went as far as to say if the rule arguably applied to him, another Purdue official would lobby in his place. Now, two informal advisory opinions say he can do it himself.

Opinions from David Thomas, inspector general, and Tim Grogg, the Indiana Department of Administration's executive director of executive branch lobbying, found that no restrictions will apply to Daniels after he becomes Purdue president.

Thomas, who was appointed by Daniels in 2005, wrote that a state officer or employee leaving state employment in the executive branch is not restricted from lobbying the legislature. Lobbying restrictions apply to executive branch lobbying, he said.

But Grogg, in his opinion, pointed out that university officials are not considered executive branch lobbyists, according to state code.

Jake Oakman, a Daniels' spokesman, said both opinions were sought because the inspector general has the sole authority to interpret the Indiana Code of Ethics. The Department of Administration's executive director of executive branch lobbying is responsible for all executive branch lobbying matters.

The opinions are not binding. Only the full ethics commission can issue an official advisory opinion, Thomas noted.

Despite the two opinions in his favor, Daniels has requested further clarification from Thomas on all rules applicable to his exit from state government.

A letter sent to Thomas on Friday from Daniels' general counsel asks for an informal advisory opinion on all post-employment rules and restrictions.

"The governor wants to fully understand all post-employment provisions to ensure full compliance," the letter stated.

Here are copies of the one-page August 9th Inspector General's Opinion re legislative lobbying, and the one-page (with attached statute) August 8th opinion from the Director of Executive Branch Lobbying.

Taken together, the two brief opinions say:

(1) a state officer or employee leaving state employment in the executive branch is not restricted by the statutory one-year cooling off from lobbying the legislature.

(2) Lobbying restrictions do apply to executive branch lobbying for one year.

(3) However, by virtue of a rule adopted by the ethics commission, university officials are not by definition considered executive branch lobbbyists.

ILB: In this June 26th ILB entry, I concluded:
The one-year prohibition (cooling off period) of the State Ethics Code (although not the original executive order) only applies to executive branch lobbying.
True. But a closer look by the ILB at the statute re executive branch lobbying, IC 4-2-6, shows that IC 4-2-6-1(a)(2)(C) specifically excludes state educational institutions (as well as the judicial and legislative branches) from the definitions of "state agency" covered by the executive branch lobbying law.

Oddly, Mr. Grogg's opinion points looks only at the rules passed by the ethics commission to implement the statute, not to the ethics statute itself, but the result is the same.

So the Governor is good to go, right? Maybe. The Governor has said he wants to be extra careful. There remain two troublesome issues.

First there is this Inspector General's opinion, #12-I-2, also from last January, that deals with "Director of the OMB [being] offered employment with a state public university." See this from p. 7-8:

In this case, it is the opinion of the Commission that a state university qualifies as a "person" and therefore is considered an "employer" as the term is defined. The Commission therefore finds that the Director’s intended employment opportunity with the University triggers consideration of the post-employment rule.

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

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

How to explain this ruling? Particularly in light of IC 4-2-6-1(a)(2)(C), cited above, which exempts state educational educational institutions from IC 4-2-6. The only answer is that the Budget Director was looked at here solely as an executive branch employee, not as though he already were an employee of an educational institutional institution, when construing the law. The same would hold for the Governor, it would seem ...

Second, to repeat the Daniels' quote from earlier in this entry:

Indiana had one of the weakest ethics situations in the country when we first came to the office. And one of the first things on the first day I did by executive order was create a ‘revolving door’ rule and an inspector general to enforce that, as well as whistleblower protections and other things. We later fought that through into law. You can imagine I’m extremely conscious of staying way within all such boundaries.
Okay, as pointed out in the earlier ILB entry, the original ethics rule the Governor put in effect by Executive Order his first week in office, Executive Order 05-12 (see this June 25th ILB entry), covers "lobbying the executive or legislative branches of state government." This was the Governor's intent at the time of taking office, and it covered both himself and all his appointees and employees. It remains in effect, you may access it here. Specifically:
8. No state officer, employee, or special state appointee who leaves state government after January 10, 2005 shall accept employment or receive compensation for one year:
a. as a lobbyist engaged in lobbying the executive or legislative branches of state government in Indiana;
The General Assembly, later in 2005, enacted the revolving door restriction into law, but only insofar as it applied to executive branch lobbying by former employees of that branch. The Governor, as indicated by the Executive Order, had intended more. Will he follow the directive he laid down in 2005, or the less stringent limitations adopted by the General Assembly?

Posted by Marcia Oddi on Sunday, August 19, 2012
Posted to Indiana Government

Friday, August 17, 2012

Ind. Decisions - News in the in widely-watched Christine Bunch arson case

The ILB has just received this information from the office of Kristine Bunch’s lead counsel:

Kristine Bunch’s legal team this afternoon learned that her bond hearing will be on or before next Wednesday, August 22 at 4 p.m., so it appears she’ll be free next week. This came about after her legal team filed a mandamus type extraordinary motion in the Court of Appeals to set bond. Within two hours of filing, the court issued the order.
The Supreme Court denied transfer on August 8th. Today the Court of Appeals ordered:
8/17/12--HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS
FOLLOWS:
1. APPELLANT'S EMERGENCY MOTION IN AID OF APPELLATE
JURISDICTION IS GRANTED.
2. THE TRIAL COURT SHALL REINSTATE THE BOND AS HERETOFORE SET
ON OCTOBER 11, 1995, OR CONDUCT A BOND HEARING AND DETERMINE
A BOND AMOUNT, IF ANY, ON OR BEFORE WEDNESDAY, AUGUST 22, 2012,
AT 4:00 P.M. LOCAL TIME.
3. THE CLERK OF THIS COURT IS DIRECTED TO SERVE BY EMAIL A COPY
OF THIS ORDER TO ALL PARTIES, THE TRIAL COURT, THE HONORABLE
JOHN A. WESTHAFER, THE HONORABLE MATTHEW BAILEY, JUDGE PRO
TEMPORE, THE DECATUR COUNTY CLERK.
4. A COPY OF THIS ORDER SHALL BE PLACED ON THE DOCKET AN RECORD
OF JUDGMENTS IN ALL MATTERS RELATING TO THIS CAUSE.
FOR THE COURT, MARGRET G. ROBB, CHIEF JUDGE
ROBB, C.J., JJ. BAKER, BAILEY.
(ORDER REC'D 08/17/12 AT 5:01 P.M.) ENTERED ON 08/17/12 KJ
Here is a list of all ILB entries on the Bunch arson conviction.

Posted by Marcia Oddi on Friday, August 17, 2012
Posted to Ind. App.Ct. Decisions

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

In Amerisure Insurance v. National Surety (SD Ind., Lawrence), a 10-page opinion, Circuit Judge Wood writes:

This litigation arises out of a dispute over insurance coverage for work-related injuries sustained by the employee of a subcontractor. Indiana Steel Fabricating (ISF) submitted and won a bid to perform the steel fabrication work for a project. ISF then engaged Central Steel Erectors as a subcontractor. In the course of that work, Brian Colip, a Central Steel employee, fell from a roof and injured himself. He filed suit against ISF under a theory of vicarious liability and settled his claims for $2.9 million. Now ISF’s insurers, Amerisure Insurance Company (Amerisure) and National Surety Corporation (National), and Central Steel’s insurer, Scottsdale Insurance Company (Scottsdale), are quarreling over which of them is responsible for bearing the cost of that settlement. The district court ruled that each one was liable for a share: Amerisure for $1 million, Scottsdale for $1 million, and National for $900,000. For the reasons that follow, we affirm.

Posted by Marcia Oddi on Friday, August 17, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Bryan J. Fields v. State of Indiana, a 6-page opinion, Judge Crone writes:

A jury found Bryan J. Fields guilty of class D felony operating a vehicle while intoxicated. The trial court entered judgment of conviction as a class D felony and imposed an eighteen-month suspended sentence. At that time, the trial court indicated that it would consider a potential reduction of the felony conviction to a misdemeanor after approximately one year provided that Fields complied with the terms and conditions of probation and committed no further criminal offenses. During a review hearing held almost one year after the conviction, the trial court denied Fields’s request to reduce his D felony conviction to an A misdemeanor. Specifically, the trial court concluded that it had no authority to modify the conviction. On appeal, Fields contends that the trial court erred when it determined that it had no such authority. We disagree with Fields and affirm. * * *

Fields maintains that Indiana Code Section 35-50-2-7(b), when read in conjunction with Indiana Code Section 35-38-1-17, grants the trial court authority to convert his felony conviction to a misdemeanor within one year of sentencing. * * *

By its plain language, Indiana Code Section 35-38-1-17 clearly addresses the trial court’s authority to reduce or suspend a sentence, not the trial court’s authority to convert a conviction from a felony to a misdemeanor. Fields does not seek a sentence reduction. Rather, he seeks a conviction conversion. In light of the plain language used by our legislature, and in light of our supreme court’s opinion in Brunner, we must conclude that Indiana Code Section 35-38-1-17 does not grant the trial court the authority to reduce a felony conviction to a misdemeanor.

NFP civil opinions today (2):

Steven C. Lane v. Brandy D. Rosenquist and Hermann Ventures, LLC d/b/a Seasons Homecare (NFP)

Mark Van Eaton and Cynthia Van Eaton Vallimont v. German American Bancorp (NFP)

NFP criminal opinions today (2):

John Willis v. State of Indiana (NFP)

Ronald Williams v. State of Indiana (NFP)

Darrell Hall v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 17, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Louisville "Preservationists weigh challenge to landmarks ordinance"

The ILB has had four entries, beginning in Sept. 2011, about a New Albany dispute where the owner of a property in a historic district installing vinyl siding without a certificate of appropriateness. The owner claimed he had no knowledge his property was in a historic district but the New Albany Historic Preservation Commission decided he had to remove the vinyl siding. He appealed and prevailed in trial court, but the ruling was reversed, 2-1, in the Court of Appeals.

In the Sept. 4, 2011 entry I noted that:

A bill in the 2010 General Assembly, SEA 177, would have outlined an appeal procedure from the Indianapolis historic preservation commission. The bill, authored by Sen. Pat Miller, was not passed, but resulted in a legislative study.

Worth reading is this long and detailed article in Indianapolis Urban Times on subsequent actions.

Apparently Louisville is facing the same concerns, according to this long August 13, 2012 story by Sheldon S. Shafer of the Louisville Courier Journal, headed "Preservationists weigh challenge to landmarks ordinance." It begins:
Preservationists say they are giving serious consideration to challenging a new ordinance that they see as unraveling landmarks provisions that have proved their worth for four decades.

“It’s just a matter of how and when we do it,” Steve Porter, an attorney who in the past has represented at least four local preservation-minded organizations, said Monday about contesting the Louisville Metro Council’s changes to how properties are declared landmarks and protected.

The council voted 18-7 Thursday night to override Mayor Greg Fischer’s veto of the landmarks ordinance that the council initially passed in July. The council needed all 18 votes, or two-thirds of the 26-member body, to override the second veto of Fischer’s 19-month administration.

Since the early 1970s, the Louisville Landmarks Commission, comprised of citizen and professional volunteers, had the final say on designating local properties as landmarks, possessing historic or architectural significance. The designation gives the sites protections, including making it difficult to raze the structures, or even to alter their exteriors.

The newly enacted provisions give the council the ability to review, and overturn, a commission landmark designation. Another change requires that at least 101 of 200 petitioners live or own property near the site; 200 signatures are required to force landmark consideration.

Posted by Marcia Oddi on Friday, August 17, 2012
Posted to Indiana Government

Vacancy on COA 2012 - "Excellent Court of Appeals pick"

From an editorial today in the Anderson Herald Bulletin and the South Bend Tribune that begins:

"Superbly and broadly qualified for the job." With that description, Gov. Mitch Daniels summarized the accomplishments of Rudy Pyle as Pyle was introduced as the new appointment to fill a vacancy on the Indiana Court of Appeals.

Pyle, 42, has served as Madison Circuit Court Division 1 judge since October 2009, when he was appointed by Daniels to replace Fredrick Spencer. In that earlier swearing-in ceremony, Pyle thanked God and his family and led the overflow crowd in a chant that he said would guide him on the bench: "respect, reliability and results."

In the 2010 election, Pyle retained his seat.

In that short time on the local bench, Pyle has been credited for initiating technological improvements to the courtroom, publicizing community awareness of serving on a jury and instituting a way to better manage dockets for jury trials.

Pyle is deserving of the Court of Appeals post.

He began his career as an Indiana State Police trooper, learning the on-the-street sensibility so critical to a judge's understanding of the effect that laws and trials have on suspects and victims.

He became deputy prosecutor for Madison County and oversaw the prosecution of major felony cases. As a private attorney, from 2005 to 2006, he focused on trial and appellate advocacy, and served as a clerk for Judge Carr Darden on the Court of Appeals from 2000 to 2004.

By chance, he will succeed his mentor, Darden, on the Court of Appeals.

Posted by Marcia Oddi on Friday, August 17, 2012
Posted to Vacancy on COA 2012

Ind. Gov't. - More on "Indiana launches card for domestic violence victims"

Updating this ILB entry from August 14th, about the new "Hope Cards [that] will contain details of the protective or restraining orders obtained by victims of domestic violence, sexual assault and stalking," where the ILB asked "Why not put the court orders online, if they are not already, and simply put an individualized QR code on the Hope Card that will take one directly to the court order?" the ILB received several responses from readers. From a "southern Indiana judicial officer":

To answer your question, the INCITE protective order registry has been up for years, is searchable by LEO [law enforcement officers], at least dispatch if not on the net to all officers. You simply log in, type in either name, and it gives you a list of all the hits for that name, this is in my mind better as it would alert the LEO to possible multiple PO's, serial abusers, serial filers, and mutual orders. It is set up to log in and pull anyone up in 45 seconds. If the police don't have street level access to this, that is where the $30k should go.
From a trial judge in the northern half of Indiana:
Good question. The orders are already online in the Protective Order Registry which is accessible to police departments but not to the public at large. Courts are required by statute to put all protective orders in the Registry.

The Hope Card is a purely duplicitous way of doing what most judges already do – give a copy of the order to a petitioner before she (or he) leaves the courtroom. Now the petitioner will also be able to obtain from the AG’s office a laminated wallet-sized card containing some of the same information. It will probably only take a week or two to obtain the card. Of course, that is precisely the week or two during which the petitioner and the police will most likely need access to the information.
William Murrell of the Lafayette Journal Courier reported August 15th:
Domestic abuse victims from Tippecanoe and surrounding counties with multiple-page court orders can now transform those documents into wallet-sized cards.

Indiana Attorney General Greg Zoeller and Verizon Wireless have launched a statewide Hope Card program that acts as a “snapshot” of the victim’s protective order.

Zoeller introduced the card Wednesday at a YWCA conference in Lafayette.

“Thanks to Verizon Wireless, we can better protect Indiana’s vulnerable and give law enforcement a new tool to respond more quickly to protective order violations,” Zoeller said. * * *

“Any law enforcement agent can go online and see what the protective order reads,” Zoeller said. “This card provides information so they can immediately go to that and gives the police officer an opportunity to see all the details of that order.”

Today the Fort Wayne Journal Gazette has an editorial headed "Hope Card carries limits." Some quotes:
At first glance, a new state program meant to help domestic violence victims seems beneficial. But the program is redundant to the system that’s already in place and could put the onus on victims to provide proof of court orders when they call police for help. * * *

“Yeah, it may be a nice tool, but I worry it puts another burden on victims,” said Dottie Davis, deputy chief of the Fort Wayne Police Department.

Unquestionably, the intent of the program is laudable, and Attorney General Greg Zoeller’s effort deserves appreciation. But it appears that more research was needed before the program was launched. The attorney general’s office should have started by seeking more input from victims’ advocates and local law enforcement experts about the proposed program.

Davis, a nationally recognized expert on domestic violence who serves as a board member for the Indiana Coalition Against Domestic Violence and the Women’s Bureau, said “it feels as though we are putting an extra responsibility on the victim to keep an extra piece of documentation.” When victims are in crisis, it is a chaotic time. They may be fleeing and may not even have their wallet or purse.

She is also concerned that victims will get a false sense of security by thinking the card gives them an extra piece of protection.

There is already a system in place to let police officers responding to domestic violence calls know when a protective order is in effect. Court clerks enter protective order information into Indiana’s JTAC (Judicial Technology Automation Committee) database each day. Emergency dispatchers have immediate access to the online protective order information that they provide to responding officers.

Police officers are able to make an arrest only after the perpetrator is served with the protective order from the court and violates that order. Having a Hope Card is not likely to accelerate that process.

“This is supposed to compliment that system,” said Erin Reece, spokeswoman with the attorney general’s office. The cards are not only for the benefit of law enforcement; victims can show the card to school officials, daycare providers or apartment managers to let them know about a protective order.

There is also the matter of training domestic violence victims about how to use the cards and training police officers about what they should do when someone shows them one of the laminated cards.

Reece said the attorney general’s office is planning to hold a series of webinars to train victims’ advocates about the Hope Cards soon.

Posted by Marcia Oddi on Friday, August 17, 2012
Posted to Indiana Government

Thursday, August 16, 2012

Courts - "Citing Wikipedia in Court Opinions"

Prof. Eugene Volokh posts quotes today from a Utah opinion telling you more than you may ever have thought you wanted to know. Really.

Posted by Marcia Oddi on Thursday, August 16, 2012
Posted to Courts in general

Ind. Law - Columnist critical of new court pro bono fee that replaces IOLTA

Columnist Debbie Harbeson of the New Albany News and Tribune has an opinion piece today very critical of the Pro Bono Services Fee codified at IC 33-37-5-31.

It was created last session by PL 136-2012, SEC.17 (HEA 1049). From the digest:

Imposes until July 1, 2017, a pro bono legal services fee of $1 on parties who file certain civil actions, small claims actions, and probate actions. Requires the pro bono legal services fees to be transferred to the Indiana Bar Foundation as the entity designated by the Indiana supreme court to organize and administer the interest on lawyers trust accounts (IOLTA) program. Requires the Indiana Bar Foundation to: (1) deposit in an appropriate account and otherwise manage the fees the foundation receives in the same manner it deposits and manages the net earnings the foundation receives from IOLTA accounts; and (2) use the fees the foundation receives to assist or establish approved pro bono legal services programs. Specifies that the handling and expenditure of the pro bono legal services fees received by the Indiana Bar Foundation are subject to audit by the state board of accounts.
From the law:
The auditor of state shall transfer semiannually the pro bono legal services fees to the Indiana Bar Foundation (or a successor entity) as the entity designated to organize and administer the interest on lawyers trust accounts (IOLTA) program under Rule 1.15 of the Rules of Professional Conduct of the Indiana supreme court. The Indiana Bar Foundation shall:
(1) deposit in an appropriate account and otherwise manage
the fees the Indiana Bar Foundation receives under this
subsection in the same manner the Indiana Bar Foundation
deposits and manages the net earnings the Indiana Bar
Foundation receives from IOLTA accounts; and
(2) use the fees the Indiana Bar Foundation receives under
this subsection to assist or establish approved pro bono legal
services programs.
The handling and expenditure of the pro bono legal services fees received under this section by the Indiana Bar Foundation (or its successor entity) are subject to audit by the state board of accounts. The amounts necessary to make the transfers required by this subsection are appropriated from the state general fund.
You can see this fee listed at p. 21 of this 28-page report on court costs and fees available on the Indiana Courts site.

Ms. Harbeson's long column begins:

CLARK COUNTY — Republican State Sen. Ron Grooms is getting so good at writing laws to force his neighbors to hand over money to others that he’s now collecting awards from the groups who benefit.

Grooms received the President’s Award from the Indiana Bar Foundation for his help in authoring a bill which led to the new pro bono legal services fee that now must be paid by those filing civil cases in Indiana. The fee will go directly to this private foundation and is supposed to be used to help pay for legal services for the needy.

Helping people gain access to legal services can certainly be considered a good cause to support but is it any more important than the hundreds of other causes and needs that exist? Why should Grooms and his buddies single out one charitable fund over all the others who are also struggling in the current economy?

One reason may be that the bill’s other author, Republican Sen. Brent Steele, just happens to be a lawyer and just happens to think the work of this particular charity is important. Steele wanted to do something to help the struggling pro bono fund and said, “This is the only thing I could think of.”

I guess we shouldn’t be surprised that the only idea a politician might have is to create a new law to force people to fund his pet cause in the amount of $450,000 per year instead of going out and seeking voluntary donations.

Posted by Marcia Oddi on Thursday, August 16, 2012
Posted to Indiana Law

Ind. Law - Restricted or Expunged Records?

The Fort Wayne Journal Gazette has an editorial today headed "Worsening a bad law." It begins:

Hoosier lawmakers made a troubling law even worse this year, voting to prohibit companies from distributing factual information about criminal convictions. Such a ban raises constitutional questions regarding free speech and must be repealed.

The General Assembly created the problem when it adopted a well-intentioned but flawed law written to help people who had been convicted of a non-violent misdemeanor or low-level felony years earlier but have had no further convictions for at least eight years. The law allows such Hoosiers to ask the courts to seal the records of their conviction from the public – but not from the courts or law enforcement officers. Judges don’t have an option; the law states they “shall” order the records sealed.

The law makes clear that in filling out an employment application, Hoosiers who have had their records sealed may state they have never been convicted of a crime. And the law makes it an infraction for a prospective employer to ask applicants whether they have a criminal record that is sealed.

While the bill was intended to give convicted criminals a second chance, it has the effect of sealing public records from the public, which is bad enough.

But legislators made the law even worse this year. While some employers might get information about convictions from the courts, others may use a private company that collects and distributes information about criminal convictions for a fee. Information about convictions would remain in their databases even if it’s hidden in the courts’.

So the General Assembly voted to prohibit “criminal history providers” from distributing information about convictions that have been sealed in the courts.

Consider the ramifications of the government ordering a person or company not to distribute factual information. The law is almost certainly an unconstitutional limit on free speech.

Now this is where the editorial loses me:
The problem with both the original and updated laws is that lawmakers are trying to have it both ways. For prospective employers and the public, the records are secret. For police and the courts, the records still exist.

If lawmakers truly want to accomplish their goal of giving offenders a second chance, they should require the records to be expunged, essentially vacating or undoing a criminal’s conviction. If lawmakers think police and courts must be able to know about a suspect’s convictions, the records should be open to all. * * *

The portion of the law dealing with criminal history providers does not take effect until July 2013, meaning lawmakers can and should rescind the most noxious part before the law takes effect.

The legislature would best serve Hoosiers by deciding to have all affected records either expunged or open.

Perhaps I'm missing something, but I don't see how changing the restricted access law into an expuungement law is going to change anything, insofar as third parties are concerned. The same issues will remain re how the information they hold may be impacted. For a limited view of who can be impacted, see this August 13th ILB entry, including a quote from a NJ Supreme Court decision: "But the expungement statute does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions ...."

Posted by Marcia Oddi on Thursday, August 16, 2012
Posted to Indiana Law

Ind. Gov't. - "Can a Very Determined Mayor Save Gary, Indiana?"

Good article on Gary Mayor and former Indiana Attorney General Karen Freeman-Wilson, by Mark Funkhouser, on the Governing Institute website.

Posted by Marcia Oddi on Thursday, August 16, 2012
Posted to Indiana Government

Stage Collapse - "Owner rejects stage collapse settlement"

Tom LoBianco of the AP, who wrote the initial story about the indemnification issue, reports today that Mid-America Sound rejected the settlement plan yesterday "that would have protected the state from further legal action. ":

Mid-America Sound officials said not enough of the victims had agreed to the deal. Of the 62 claimants, which include people who were injured and the estates of those who died, only 51 agreed to the settlement by the Aug. 1 deadline.

Among those rejecting the deal were the families of three women killed when strong winds toppled the stage into a crowd on Aug. 13, 2011, according to their attorney. The temporary stage, leased to the state by Mid-America, fell shortly before country duo Sugarland was set to perform.

Mid-America spokeswoman Myra Borshoff Cook released a statement saying “the minimum participation requirements” specified in the proposed settlement weren’t met. The statement didn’t say how many of the victims were required, saying only that “a sufficient ratio of claimants from the largest claims categories” hadn’t agreed to the settlement. * * *

Attorney General Greg Zoeller had proposed the joint settlement, which asked victims to agree to settle their claims for shares of $6 million from the state and $7.2 million from Mid-America and the stage’s manufacturer, James Thomas Engineering. In exchange, the victims would agree not to seek additional compensation.

ILB: The victims were not given the opinion of simply sharing in the supplemental $6 million the General Assembly appropriated in the last session, instead they had to elect to take the whole package, or nothing.

Re the indemnification issue, the story continues:

The company’s decision Wednesday scuttles a legal strategy Zoeller pursued to protect the state from a Mid-America lawsuit claiming the state would be on the hook for any damages victims won in court against the company.

Mid-America pointed to invoices signed by State Fair Executive Director Cindy Hoye after the stage collapse that included legal language clearing the company of any wrongdoing. The state argues that the invoices didn’t constitute a legally binding contract, but state lawyers didn’t want to test that assertion in court.

See this August 9th ILB entry re the indemnification issue, where Mid-America claimed that a single state employee, acting on her own and probably without intent, could bind the State and make it ultimately liable for future damage claims the victims won in court against Midwest, via the boilerplate on an invoice she signed. More:
Following Mid-America’s statement Wednesday, Zoeller said the state would immediately begin distributing the $6 million that lawmakers approved this year for victims.
Here is Attorney General Zoeller's press release on the matter, issued late last evening.

Posted by Marcia Oddi on Thursday, August 16, 2012
Posted to Stage Collapse

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (2):

Stephen L. Burkes v. State of Indiana (NFP)

Tammy Lee Montgomery v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 16, 2012
Posted to Ind. App.Ct. Decisions

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

In Rosenbaum et al. v. White, et al. (ND Ind., Springmann), a 28-page opinion, Circuit Judge Manion writes:

In 2005, two attorneys, Beau Jack White and James Beaman, assisted a securities broker-turned-real estate investor named Chad Seybold in developing an investment plan to buy, rehabilitate, and then sell, or refinance and rent, various residential and commercial properties in Marion, Indiana. That plan involved the creation of two business entities—one of which would be partially owned by a group of private investors. The attorneys were hired to draw up the necessary formation documents for those two companies. Seybold then solicited a group of investors who became part owners of one of the companies, together contributing more than $1 million to the investment plan. Soon, however, Seybold informed the investors that the investment plan had failed. The investors filed a lawsuit against Seybold, the attorneys, and various organizations that they blamed for their losses. The defendant-attorneys—now the only defendants remaining in the case—filed a motion for summary judgment on all of the claims levied against them; the plaintiff-investors opposed that motion and filed a counter-motion for summary judgment. The district court granted summary judgment in favor of the defendant-attorneys on all applicable claims. The plaintiffs appeal, and we now affirm.

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

Vacancy #2 on Supreme Court 2012 - Evaluations sent to Governor

Here is the letter containing the written evaluations of the 3 finalists, dated yesterday, August 15th, that the Judicial Nominating Commission has sent to Governor Daniels. So the Governor's 60 days for making a decision runs from August 15th.

For more, see this August 13th ILB entry and its links.

[Update at 12:01 PM]
A reader has pointed out one error, on p. 7, para. 1, it should read "Indianapolis lawyers' chapter of the Federalist Society."

Posted by Marcia Oddi on Thursday, August 16, 2012
Posted to Vacancy #2 on Supreme Court 2012

Courts - "Supreme Court should have 4 women says retiring justice"

That is a quote from a retiring justice of the Supreme Court of Canada, Marie Deschamps, reported by Meagan Fitzpatrick of CBC News. Canada's Chief Justice is also a woman, Beverley McLachlin. It has a 9-member court. A quote from the interview:

Q: What about the gender balance on the court? Do you hope that your replacement is a woman? Should that be a factor?

A: I think every court should aim for half and half. I like the way our chief coins it, when we have a critical mass of men or women it's more an equal rapport between the two genders.

It's important that it's balanced. Yes, I do like the present balance. I do like the fact that we are four [women] on the court. And I must say that I have seen the difference. When Justice [Louise] Charron and Justice [Rosalie] Abella were appointed we went from three to four and I have seen some kind of difference. Maybe the personalities are a factor.

ILB: There are many comments, some of them outraged. I haven't read them all, but this one caught my eye:
Why?? What advantage would it bring? You can either do the job or not, Who cares what the ratio is? How come we only worry about equal representation of the really good jobs? If people want equal representation it should be across the board, but something tells me we won't see demonstrations in the streets that women are not equally represented; in say the sanitation department... that's what I want to see more women on the back of garbage trucks! If women are intentionally being passed up on account of their gender then by all means riot in the streets, I do know that in many areas it is still a man's world no doubt. But I don't think to put a number on it is right either.

Posted by Marcia Oddi on Thursday, August 16, 2012
Posted to Courts in general

Wednesday, August 15, 2012

Ind. Courts - More on: "'I guess it's their way of saying goodbye and don't let the door hit you on the way out,' Nemeth said." [Updated]

Updating this ILB entry from earlier today, here now is a copy of the 9-page charging document in In re Nemeth.

[Updated at 4:10 PM] Well, it seems the ILB was wrong about the charging document not being available yesterday. The Court press office has just sent me a note that reads in part:

It was included a number of times and you must have missed it. Under the prior system, the link would have been in the release but this is the best way to post documents under our new system. You appear to be the only one who missed it as other reporters quoted from it. If you can’t find it, I will have our intern send it to you tomorrow.

Posted by Marcia Oddi on Wednesday, August 15, 2012
Posted to Indiana Courts

Environment - Two stories today about Kentucky coal mining

From today's NY Times, a long, front-page story headed: "Mine Plan Puts Two Kentucky Fixtures on Collision Course: A plan to develop a coal mine around a Girl Scout camp has exposed shifting alliances between environmental and business interests."

From the Louisville Courier Journal website this afternoon, a brief story headed "Kentucky coal producers to supply 9 million tons annually to India."

Posted by Marcia Oddi on Wednesday, August 15, 2012
Posted to Environment

Ind. Decisions - Court of Appeals issues 5 today (and 15 NFP), including opinion on what is "reasonable particularity" under APRA

For publication opinions today (5):

JPMCC 2006-CIBC 14 Eads Parkway, LLC v. DBL Axel, LLC, David Richman, Lynette Gridley, as Trustee of the Hartunian Family Trust (u/d/t dated November 8, 1989), Black Diamond Realty, LLC, et al.

In Reko D. Levels v. State of Indiana , a 3-page opinion reversing the trial court, Judge Bailey concludes:

Here, the trial court advised Levels at his initial hearing that he had a right to a jury trial. However, the trial court failed to adequately advise Levels of the consequences of failing to demand a jury trial. The court did not mention the necessity of making such a request no later than ten days prior to the scheduled trial date, and at no time did the trial court disclose that the failure to make the request would waive Levels’ right to a jury trial. There is also no indication that Levels knew that the demand had to be in writing. Because the advisement was insufficient, there was no valid waiver of a jury trial.
In Michael K. Curts, Individually and as Personal Representative of the Estate of Dorothy J. Curts, Deceased v. Miller's Health Systems, Inc. a/k/a Miller's Merry Manor, Logansport, LLC, et al., a 12-page opinion, Chief Judge Robb writes:
Michael Curts, acting individually and as personal representative of the Estate of Dorothy J. Curts, brought suit against Miller’s Merry Manor nursing home (“Manor”), claiming wrongful death, breach of contract, and negligent infliction of emotional distress. The trial court granted summary judgment in favor of Manor. Curts appeals, raising two issues: 1) whether Theresa Weitkamp, as a nurse and nursing home administrator, can qualify as an expert witness and offer an expert opinion as to whether Manor breached its standard of care and whether such alleged breach caused Dorothy Curts’s injuries and subsequent death; and 2) whether a genuine issue of material fact exists such that summary judgment is inappropriate. Concluding nurses can potentially have sufficient expertise to qualify as experts for the purposes of medical standards of care and medical causation, but that the evidence designated does not demonstrate that Weitkamp has sufficient expertise and thus no genuine issues of material fact exist, we affirm the trial court’s grant of summary judgment for Manor.
In Mary Barrix and Joe Barrix, Jr. v. Kristopher Jackson and Graves Plumbing Co. Inc., a 13-page opinion, Judge Bailey writes:
The Barrixes contend that the trial court’s ruling improperly excluded portions of Dr. Fulton’s testimony because Dr. Fulton relied upon unauthenticated medical records in rendering his opinion and offering his deposition testimony.

We agree with the Barrixes that the use of unauthenticated medical records that would otherwise be inadmissible is not a proper bar to the admissibility of an expert’s opinion rendered from those records. We nevertheless find no reversible error in the trial court’s decision to exclude from evidence Dr. Fulton’s deposition testimony because any error the trial court committed was invited error. * * *

The Barrixes have not demonstrated reversible error as a result of the trial court’s exclusion of Dr. Fulton’s deposition testimony from evidence, and any such error was invited. The trial court did not abuse its discretion when it excluded Mary’s medical bills from evidence. The Barrixes also failed to adduce any evidence giving rise to any inference supporting allegations that Graves had a duty of care toward Mary and breached its duty. We therefore affirm the trial court’s entry of judgment on the evidence against the Barrixes.

In Michael R. Jent v. Fort Wayne Police Department, an 8-page opinion involving a pro se appellant and the Access to Public Records Act, Judge Najam writes:
In support of its cross-motion for summary judgment, the FWPD asserted that it could not fulfill any part of Jent’s records request because the request does not comply with Indiana Code Section 5-14-3-3(a)(1), which requires that the request “identify with reasonable particularity the record being requested.” The “reasonable particularity” requirement under this statute has not previously been interpreted by an Indiana court. In the context of the discovery rules, however, a requested item has been designated with “reasonable particularity” if the request enables the subpoenaed party to identify what is sought and enables the trial court to determine whether there has been sufficient compliance with the request. In re WTHR-TV, 693 N.E.2d 1, 6 (Ind. 1998). Here, in essence, the FWPD contends that Jent’s request fails the first part of that test, namely, that it does not enable the FWPD to identify the records sought.
Again, Jent requested the following records:
Daily incident report logs of crimes committed from January 1st, 2001[,] through December 8th, 2005[,] containing the crimes of abduction and sexual assault and/or attempted abduction and attempted sexual assault with the victims describing the perpetrator as a[n] Hispanic male with a tattoo of a rose and green stem on the left arm or side and/or if the victim was taken to a[n] abandoned house and/or placed in a van during the commission of the crime.
While Jent’s request describes the records sought in some detail, the level of detail does not necessarily satisfy the “reasonable particularity” requirement of the statute. In response to a request under APRA, a public agency is required to search for, locate, and retrieve records. Depending upon the storage medium, the details provided by the person making the request may or may not enable the agency to locate the records sought. Indeed, here, the FWPD was unable to fulfill the request using the search parameters Jent provided.

As Sergeant Bubb explained in response to Jent’s request, the records are maintained electronically and the “software will not facilitate the production of any kind of list with the parameters [Jent] specified.” The FWPD designated Sergeant Bubb’s letter as evidence in support of summary judgment. That designated evidence shows that the parameters given in the request are incompatible with the software that manages the electronic data. In other words, the software lacks the capacity to search and retrieve the records requested. * * *

[The Court references an PAC opinion] Further, the PAC stated that “it would not be appropriate for the [FWPD] to deny [Jent] access to the information on the basis that it is stored in a way that would not allow the [FWPD] to separate the daily log information from the discretionary investigatory record information.”

The PAC misconstrues Sergeant Bubb’s letter. The letter does not deny Jent’s request based on an alleged inability to separate the daily logs from other documents. Rather, the letter gives two other reasons for denying Jent’s request: that the FWPD was unable to search its records using the parameters given and that the records requested are excepted from disclosure as investigatory records. The PAC did not express any opinion concerning whether the FWPD’s software had the capacity to locate and retrieve the records using the parameters Jent provided. * * *

Whether a request identifies with reasonable particularity the record being requested turns, in part, on whether the person making the request provides the agency with information that enables the agency to search for, locate, and retrieve the records. Here, the undisputed designated evidence shows that such is not the case and that the FWPD is entitled to summary judgment.

ILB: The Jent opinion on p. 3 references a PAC advisory opinion, but oddly does not cite it. The ILB has located the foraml advisory opinion, it is 09-FC-93, dated May 4, 2009.

NFP civil opinions today (6):

Douglas C. Holland v. Rising Sun/Ohio County First, Inc., Ohio County, Rising Sun, Quin Min, and Kirk and Michelle Neace (NFP)

In re the Term. of the Parent--Child Rel. of H.S. and N.S. and S.S. & D.S. v. Indiana Dept. of Child Services (NFP)

Tracy Lynn Weston, as Personal Representative of the Estate of Clinton Dale Weston, Deceased v. Scott D. Longevin, M.D., and Preferred Emergency Specialists, Inc. (NFP)

Floor Mart of Indiana, Inc., Annesse M. Covey, Cherly C. Covey, and William Covey v. Norman Fischer and Julie Fischer (NFP)

Vernon L. Mefford v. Lori Little and Jason McCord (NFP)

Term. of Parent-Child Rel. of C.S., Jr., D.S., and J.S., minor children: C.S., Sr., father v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (9):

Tondalay Brown v. State of Indiana (NFP)

Joshua Ellis v. State of Indiana (NFP)

Lloyd W. Mezick v. State of Indiana (NFP)

Derek Dwane Hardy v. State of Indiana (NFP)

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

David M. Craft v. State of Indiana (NFP)

Victor Salazar v. State of Indiana (NFP)

Larry Burns v. State of Indiana (NFP)

Danny K. Peet v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 15, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Challenges to BMV re drivers' licenses in both state and federal court

The Fort Wayne Journal Gazette follows up on Monday's ILB entry with this editorial. A few quotes:

Countless Hoosiers witnessed improvements in the Bureau of Motor Vehicles over the past several years, with service faster and mistakes fewer.

But two legal cases filed this summer threaten to again tarnish the BMV’s reputation – and signal big problems could be ahead for people caught in the BMV’s bureaucratic maze. * * *

Those snafus could have even more important ramifications, considering that a valid driver’s license is the most common form of ID Hoosiers need to vote. If the BMV errs on licenses, could eligible voters be denied the right to cast ballots?

With luck, those were isolated incidents. But after the judge’s ruling in the first case, Ken Falk of the American Civil Liberties Union, said “This decision is important … for the thousands of people who are being unfairly deprived of their licenses by the application of a law for which no rules have even been issued.”

Posted by Marcia Oddi on Wednesday, August 15, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "DCS changes tough, but for the best"

Andrea Neal, an adjunct scholar with the Indiana Policy Review Foundation, gives her take on the Department of Child Services in an article, here in the Evansville Courier & Press. A few quotes:

Running the Indiana Department of Child Services (DCS) is harder than being Marion County juvenile judge "by a factor of 18," Jim Payne concedes.

Within days of being tapped by Gov. Mitch Daniels to head the new cabinet-level department, Payne recognized the challenge: Combining 92 county programs with "92 different ways of doing things" into a statewide system with consistent policies for handling child abuse and neglect cases. * * *

In many respects, it's been a no-win situation. Those who advocate family preservation attack Payne for the state's higher-than-average rate of removing children from homes. Others blame Payne's department for not acting quickly enough to pluck children from hazardous situations.

Residential treatment facilities say Payne has overlooked their crucial role in the system, forcing some to close their doors. Political opponents say Payne and Daniels have been more concerned with saving money than helping the vulnerable. * * *

A centralized hotline for reporting suspected abuse and neglect, launched in December 2010, drew fire. Critics say cases have fallen through cracks. The DCS says the hotline is more accountable than when "reports of child abuse and neglect were directed to more than 300 different telephone numbers across 92 counties."

Democrats have attacked DCS for sending money appropriated by the legislature back to the treasury instead of spending it on children. Payne said he didn't want to "just spend money" on things that didn't work and was waiting to get the right programs in place before investing in prevention and family preservation.

Posted by Marcia Oddi on Wednesday, August 15, 2012
Posted to Indiana Government

Ind. Courts - "Realignment shows court is adjusting to reality of meth era"

From the Evansville Courier & Press, an editorial about changes in the Vanderbergh County courts. Some quotes:

And now comes the Vanderburgh County Superior Court which, after years of operating on a basic rotation system, is adjusting to the realities of the day, that is, the impact of drug abuse, not only on the users, but on their families.

The courts are seeing an extraordinary number of children being removed from their homes because of the presence of drugs and drug users in their homes.

Judge Wayne Trockman, who created the drug court and other such special court programs, and who will assume responsibility for drug and alcohol cases, said the courts have been slower than law enforcement to deal with impact of methamphetamine of Vanderburgh County. But now that is about to change.

Chief Superior Court Judge Mary Margaret Lloyd told Courier & Press staff writer Mark Wilson that changes in the seven-judge court structure, to take effect in September, will better help the court to handle cases involving substance abuse and addiction, and address the growing backlog of paternity causes. * * *

[T]hese changes are expected to help the court deal with the growing number of Children In Need of Services (CHINS) cases, which have skyrocketed. These are cases in which children are removed from unfit homes, mainly because of meth in those homes.

Posted by Marcia Oddi on Wednesday, August 15, 2012
Posted to Indiana Courts

Courts - "Judge rules that Kentucky ban on groceries selling liquor is unconstitutional"

From the Louisville Courier-Journal, Gregory A. Hall reports in a long story:

Kentucky’s more than 70-year ban on selling liquor and wine in grocery and convenience stores, while allowing it in drug stores and elsewhere, violates the U.S. Constitution, a federal judge has ruled.

But consumers won’t see wine and liquor in grocery stores just yet. U.S. District Judge John G. Heyburn II said his order, issued Monday, can’t be enforced until other unspecified issues are resolved. The ruling said he will schedule a conference to deal with those issues.

Not allowing some retailers to get wine and liquor licenses, but granting them to others is a violation of the equal protection clause of the Constitution’s 14th Amendment, Heyburn ruled.

The General Assembly “wanted to limit liquor sales generally ... and it did so by arbitrarily distinguishing grocers from all other retailers” when the law was adopted after the end of Prohibition, Heyburn wrote.

“Perhaps back then grocers were different from other potential alcohol vendors in some manner that rationally related to the sale of liquor and wine. If so, none of those differences appear today; most drugstores sell staples, and some grocers sell prescription drugs,” Heyburn wrote.

Posted by Marcia Oddi on Wednesday, August 15, 2012
Posted to Courts in general

Ind. Courts - " "I guess it's their way of saying goodbye and don't let the door hit you on the way out," Nemeth said."

That is a quote from this story in the South Bend Tribune by Madeline Buckley.

As reported in this ILB entry quoting the Court's news release, yesterday the "Judicial Qualifications Commission File[d] Misconduct Charges Against St. Joseph Probate Court Judge Peter J. Nemeth."

Oddly, yesterday's press release did not include a link to the charging document itself, although in past incidents involving judges, those charging documents have been made publicly available immediately. The ILB placed a request for this document yesterday afternoon, soon after the news release, but has not as yet received a response.

From today's story:

SOUTH BEND—
A long-serving St. Joseph County probate judge is accused of misconduct on the bench in connection with alleged remarks made to a woman in a guardianship hearing for a deaf teenager last year.

The Indiana Commission on Judicial Qualifications has filed one count of misconduct against St. Joseph Probate Court Judge Peter Nemeth, it announced Tuesday.

Nemeth has served as the county's probate judge since 1993 and is retiring at the end of this year.

The commission's complaint alleges that Nemeth made inappropriate comments to a woman in court as a potential guardian for a deaf 18-year-old when she asked for a court-provided interpreter for the teenager.

The commission said Nemeth first denied her request to supply a sign language interpreter for the woman, and instead ordered her to provide one herself.

He later appointed one when the woman referenced portions of the Americans with Disabilities Act, the complaint said.

During the May guardianship hearing, the woman testified she had not worked or paid taxes in the past 10 years, the commission said.

The commission alleges Nemeth later suggested to the woman she should not have asked the court to pay for an interpreter when she had not paid taxes for years.

Nemeth on Tuesday said he will fight the charge against him.

"I certainly deny that I acted inappropriately," he said. * * *

Nemeth has 20 days to answer the charge. The Indiana Supreme Court will then hold a public hearing to either dismiss the charge or levy a sanction that could range from a reprimand to a ban on holding judicial office in the state.

The judge, who has also served as South Bend mayor and on the city council, announced his retirement earlier this year.

"I guess it's their way of saying goodbye and don't let the door hit you on the way out," Nemeth said.

Posted by Marcia Oddi on Wednesday, August 15, 2012
Posted to Indiana Courts

Tuesday, August 14, 2012

Ind. Decisions - Two recent attorney disciplinary orders

From In the Matter of: Richard S. TEBIK, a 2-page, 5-0 order filed August 7, 2012:

Respondent has been suspended from the practice of law in this state since December 17, 2009. On January 6, 2012, the Indiana Supreme Court Disciplinary Commission petitioned this Court to direct Respondent to show cause why he should not be held in contempt of this Court, alleging that Respondent has practiced law in this state while suspended from the practice of law. In particular, the Commission alleged that during 2010 and 2011, Respondent provided services to a person, who is now deceased, and others associated with him. Those services included preparation of a durable power of attorney, trust documents, deeds in trust, and consents to unsupervised administration of a decedent's estate. Respondent sent a bill to one of the persons for $1,575, representing 10.5 hours of work at $150 per hour.

The Court entered a Order to Show Cause on January 19, 2012, directing Respondent to show cause in writing, within 15 days of service why he should not be held in contempt for disobedience to this Court's order suspending him from practice. Respondent filed a response on May 10, 2012, in which he admitted preparing the documents at issue.

On May 14, 2012, Respondent tendered to this Court a resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17). If his resignation is accepted, Respondent must wait five years to apply for reinstatement and then must prove his fitness to resume practice by clear and convincing evidence. See Admis. Disc. R. 23(4).

The Court concludes that Respondent practiced law while suspended in contempt of this Court. However, in light of Respondent's resignation from the bar, the Court will impose no penalty. If Respondent seeks reinstatement, all matters bearing on his fitness to practice will be at issue, including his practicing law in contempt of this Court's suspension order.

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. * * *

IT IS FURTHER ORDERED that any 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.

From In the Matter of: Shane E. BEAL, a one page, 5-0 order filed Aug. 7, 2012:
On April 24, 2012, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission's investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court's order to show cause. The Commission has filed a "Request for Ruling and to Tax Costs."

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately.

Posted by Marcia Oddi on Tuesday, August 14, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Indiana launches card for domestic violence victims"

This new story from Rick Callahan of the AP raises a question:

INDIANAPOLIS — Indiana officials are launching a statewide program to provide abuse victims with wallet-sized cards intended to help police take faster action against abusers who violate court orders.

Attorney General Greg Zoeller (ZEL’-ur) says the new Hope Cards will contain details of the protective or restraining orders obtained by victims of domestic violence, sexual assault and stalking.

The cards will include the victim’s information and the name, photo and description of the person covered by the court order.

Zoeller says in crisis situations abuse victims who are most often women can’t always find the multi-page court orders police need to see before they can arrest the person violating the order.

The program’s launch announced Tuesday is being funded with a $30,000 Verizon Wireless grant.

Here is the AG's webpage on this, with a sample card.

The ILB's question: Why not put the court orders online, if they are not already, and simply put an individualized QR code on the Hope Card that will take one directly to the court order?

Posted by Marcia Oddi on Tuesday, August 14, 2012
Posted to Indiana Government

Ind. Courts - Judicial Qualifications Commission Files Misconduct Charges Against St. Joseph Probate Court Judge Peter J. Nemeth

From a news release from the Indiana Courts:

The Indiana Commission on Judicial Qualifications has filed disciplinary charges against St. Joseph Probate Court Judge Peter J. Nemeth alleging that his derogatory remarks during a guardianship hearing about a potential guardian’s socioeconomic status violated the Code of Judicial Conduct by acting in a manner that did not promote public confidence in the independence, integrity and impartiality of the judiciary. Judge Nemeth has served as the judge of St. Joseph Probate Court since 1993, and has been a member of the Indiana bar since 1966. The Commission has filed one count of misconduct against Judge Nemeth related to his handling of a guardianship proceeding in 2011. The Commission alleges that Judge Nemeth’s statements and conduct during the adult guardianship proceedings violated certain sections of the Code of Judicial Conduct.

The “Notice of the Institution of Formal Proceedings and Statement of Charges” alleges that Judge Nemeth made derogatory statements concerning the use of taxpayer dollars when the litigant requested during a March 11, 2011 and a May 6, 2011 hearing that the court provide services of a sign language interpreter for the deaf 18-year-old subject of the guardianship proceeding. Judge Nemeth denied the request and ordered the litigant to provide a deaf interpreter for the permanent guardianship hearing. Judge Nemeth revised the order after the litigant brought the relevant portions of the Americans with Disabilities Act to the court office. During her testimony at the May 6, 2011 guardianship hearing, the litigant testified that she had not filed income taxes and had not worked in ten years. The Commission alleges that Judge Nemeth made derogatory statements about the litigant’s socioeconomic status by suggesting that it was inappropriate for her to request that “the taxpayers pay for” [an interpreter] when she “hadn’t paid taxes for several years.”

The one specific count alleging misconduct is provided in the “Notice of the Institution of Formal Proceedings and Statement of Charges.” Generally it includes the following:

Count I centers on statements made and conduct engaged in by Judge Nemeth during the March 11, 2011 and May 6, 2011 guardianship proceedings. The Commission alleges that Judge Nemeth violated Rule 1.2 of the Code of Judicial Conduct which requires judges to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary; violated Rule 2.2 of the Code of Judicial Conduct which requires judges to perform all duties of judicial office fairly and impartially; violated Rule 2.3(B) of the Code of Judicial Conduct which requires judges to not act, in the performance of judicial duties, in a manner that manifests bias or prejudice; violated Rule 2.8(b) of the Code of Judicial Conduct which requires judges to be patient, dignified, and courteous to litigants; and engaged in conduct prejudicial to the administration of justice.
Judge Nemeth has the opportunity to file an Answer to the charges with the Indiana Supreme Court within twenty days of receiving notice of the charges. After the Answer is filed, or when twenty days has passed, the Indiana Supreme Court will appoint three Masters (Judges) to conduct a public hearing on the charge that Judge Nemeth committed judicial misconduct.

Posted by Marcia Oddi on Tuesday, August 14, 2012
Posted to Indiana Courts

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

In Halasa v. ITT Education Services (SD Ind., Lawrence), a 15-page opinion, Judge Wood writes:

ITT Educational Services is a for-profit corporation that runs “ITT Technical Institutes” in several locations throughout the United States, including Lathrop, California. Plaintiff Jason Halasa was the Lathrop Campus’s College Director for six months in 2009. The parties provide competing accounts of the end Halasa’s tenure: ITT says that Halasa was fired for exhibiting poor management skills and delivering inadequate results; Halasa alleges that he was fired in violation of the False Claims Act, 31 U.S.C. § 3730(h), after identifying and reporting several irregularities in the way ITT was handling its federally subsidized loans and grants for students. We conclude that even if Halasa did engage in protected conduct under the Act, he has not shown that he was fired because of this conduct. Thus, we affirm the decisions of the district court granting summary judgment and costs in ITT’s favor.

Posted by Marcia Oddi on Tuesday, August 14, 2012
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (4):

In In Re: Rueth Development Company, An Indiana Limited Partnership , a 35-page opinion, Judge Riley writes:

Appellants raise eight issues in this consolidated appeal, three of which we find dispositive and restate as the following:
(1) Whether the trial court abused its discretion by granting Appellees’ T.R. 60(B) motion to vacate the trial court’s dismissal of RDC’s dissolution proceedings;
(2) Whether the trial court abused its discretion in allowing Appellees to pursue their claims against Appellants as a derivative action under Ind. Code § 23-16-11-1; and
(3) Whether the trial court abused its discretion by granting a preliminary injunction enjoining RDC’s capital distributions and restricting its payment of attorney fees. * * *

Based upon the foregoing, we conclude that (1) the trial court did not abuse its discretion by granting Appellees relief under T.R. 60(B); (2) the trial court abused its discretion in allowing Appellees to pursue their claims as a derivative action; and (3) the trial court did not abuse its discretion by granting a preliminary injunction on capital distributions and payment of attorney fees. Affirmed in part, reversed in part, and remanded with instructions to the trial court to continue dissolution proceedings.

In Harold O. Fulp, Jr. v. Nancy A. Gilliland, Individually and as Successor Trustee of the Ruth E. Fulp Revocable Trust Dated June 29, 2005, a 17-page opinion, Judge Riley writes:
Appellant-Plaintiff, Harold O. Fulp, Jr. (Harold), appeals the trial court’s denial of his request for specific performance of a purchase agreement which he entered into with Ruth E. Fulp (Ruth) and which was rescinded by Appellee-Defendant, Nancy A. Gilliland (Gilliland), Individually and as Successor Trustee of the Ruth E. Fulp Revocable Trust. We affirm in part and reverse in part.

Harold raises five issues on appeal, which we consolidate and restate as the following two issues:
(1) Whether Ruth, as the settlor, trustee, and sole lifetime beneficiary of the Ruth E. Fulp Revocable Trust, could properly execute a purchase agreement for the sale of the Trust property, thereby divesting the Trust; and
(2) Whether the trial court erred by determining that Gilliland did not tortiously interfere with the purchase agreement when she rescinded the agreement upon becoming successor trustee. * * *

Based on the foregoing, we conclude that Ruth, as the settlor, of the Trust could properly execute a purchase agreement for the sale of the Trust property and Gilliland did not tortiously interfere with the purchase agreement when she rescinded the purchase agreement upon becoming successor trustee.

In Andrew Stetler v. State of Indiana, a 10-page opinion, Chief Judge Robb writes:
Following a jury trial, Andrew Stetler was found guilty of two counts of child molesting, both Class A felonies, and admitted to being an habitual offender. He was sentenced to a total of ninety years. Stetler raises two issues for our review: whether the evidence presented was sufficient to sustain one of Stetler’s convictions for child molesting, and whether Stetler’s ninety-year aggregate sentence is inappropriate in light of the nature of the offenses and Stetler’s character. Concluding that sufficient evidence was presented and the sentence is not inappropriate, we affirm.
In Carlin Iltzsch v. State of Indiana , a 13-page, 2-1 opinion, Judge Mathias writes:
Carlin Iltzsch (“Iltzsch”) appeals following his conviction for Class B felony burglary. On appeal, Iltzsch argues that the trial court abused its discretion in ordering him to pay restitution in the amount of $711.95. We reverse and remand with instructions. * * *

The State had a full and fair opportunity to obtain and present evidence concerning Whittemore’s actual loss at Iltzsch’s sentencing hearing, but failed to do so. We believe that allowing the State to conduct a new restitution hearing and to present additional evidence concerning the loss would allow the State an inappropriate second bite at the apple. We therefore conclude that the State is not entitled to hold a new restitution hearing, and remand with instructions for the trial court to vacate its restitution order. We acknowledge that Whittemore must now resort to civil process if he wishes to seek redress for his losses. However, this remedy will require nothing more than what the law requires: sufficient, admissible evidence to support his claims. Reversed and remanded with instructions.

ROBB, C.J., concurs.
BAILEY, J., dissents with opinion. [a quote] While I agree with the majority that there is insufficient evidence to support the amount awarded in restitution, I do not agree with its conclusion that the State is not entitled to conduct a new restitution hearing. I therefore respectfully dissent.

NFP civil opinions today (2):

In the Matter of the Paternity of I.B., R.P. v. M.B., As Next of Friend of I.B. (NFP)

C. Dennis Wegner & C. Dennis Wegner & Associates, Professional Corporation v. Michael S. Miller, D.O., and Cohen Garelick & Glazier (NFP)

NFP criminal opinions today (6):

Richard D. Boring v. State of Indiana (NFP)

Brandon Rhonte McDonald v. State of Indiana (NFP)

Stacey Johnson v. State of Indiana (NFP)

Sadeeq Danbala v. State of Indiana (NFP)

Billy D. Taylor v. State of Indiana (NFP)

Stephen R. Harvey, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 14, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - "EACS sues to clear up confusion on sale law: Charters get 1st buy chance"

Supplementing this ILB entry from May 12th, 2012, Rebecca S. Green of the Fort Wayne Journal Gazette reports today:

Attorneys for East Allen County Schools have filed a lawsuit in Allen Superior Court against the Indiana Public Charter Schools Association.

The school corporation wants a judge to clarify state law regarding selling vacant school buildings, and when they have to wait for charter schools to decide they are interested.

The lawsuit, a complaint for declaratory judgment, stems from the closure of Monroeville Elementary School at the end of the 2010-2011 school year.

The closure of the school was part of the district’s redesign, which also closed Harlan Elementary School and changed Paul Harding High School to East Allen University beginning this fall.

The Roman Catholic Diocese of Fort Wayne – South Bend tried to purchase the Monroeville school this past spring in the hopes of turning it into a Catholic School. The diocese paid $2,500 in earnest money and offered to buy the building for $189,000, according to court documents.

But 2011 changes to Indiana law require vacant public school buildings to remain on a list kept by the Indiana Department of Education for 48 months to allow charter schools an opportunity to buy or lease the building, either option for $1.

If the school remains on the list, unclaimed for 48 months, then the district may sell or get rid of the property in other ways.

The law, offered by GOP House Speaker Brian Bosma, was purported to address situations in which districts were refusing to sell buildings to charter schools to avoid competition. However, only anecdotal evidence from urban areas such as Indianapolis and Gary was offered during the hearings on the bill.

After the diocese expressed interest in the EACS property, the attorney for the Indiana Public Charter Schools Association, which represents Indiana’s 65 public charter schools, sent a cease-and-desist letter to the district and the diocese, threatening a lawsuit if the school corporation proceeded with the sale.

The association filed a lawsuit against Fort Wayne Community Schools earlier this year, contesting the transfer of the shuttered Pleasant Center Elementary School to the Fort Wayne-Allen County Airport Authority. In that case, the Timothy L. Johnson Academy, a charter school, expressed interest in the property.

For the Monroeville school, however, no charter school has expressed any interest in the property, according to court documents.

School officials believe the charter school association is misinterpreting the 2011 law and ignoring the part of the law that says districts can sell property no longer needed for school purposes as long as the sale is in accordance with Indiana law, according to court documents. Doing as the charter school association wants would force a school corporation to bear the costs associated with maintaining an unneeded building for an unreasonable amount of time, according to the lawsuit.

Posted by Marcia Oddi on Tuesday, August 14, 2012
Posted to Indiana Law

Law - " Election Day impersonation, an impetus for voter ID laws, a rarity, data show"

From the August 11th Washington Post, this very long story by Natasha Khan and Corbin Carson that begins:

A new nationwide analysis of more than 2,000 cases of alleged election fraud over the past dozen years shows that in-person voter impersonation on Election Day, which has prompted 37 state legislatures to enact or consider tougher voter ID laws, was virtually nonexistent.

The analysis of 2,068 reported fraud cases by News21, a Carnegie-Knight investigative reporting project, found 10 cases of alleged in-person voter impersonation since 2000. With 146 million registered voters in the United States, those represent about one for every 15 million prospective voters.

Posted by Marcia Oddi on Tuesday, August 14, 2012
Posted to General Law Related

Vacancy #2 on Supreme Court 2012 - Judge Loretta Rush featured

Today Sophia Voravong and Chris Morrisse of the Lafayette Journal Courier have a very long story about Tippecanoe County Judge Loretta Rush, who is one of three candidates for the current vacancy on the Indiana Supreme Court. A few quotes:

Last week, Rush, Hamilton Superior Court 1 Judge Steven Nation and Indianapolis attorney Geoffrey Slaughter were named the three semifinalists to replace retiring Justice Frank Sullivan Jr. on the Indiana Supreme Court.

They were among an initial 22 applicants — a strong list that consisted of 16 women and six men, among them nine current judges — who were interviewed by the seven-member Judicial Nominating Committee in mid-July.

When the candidates were reduced to 10, Rush said she and the other three trial court judges who made the cut emailed each other regularly for support. She didn’t expect to be named a semifinalist.

“Of course, you apply thinking that you could,” Rush said. “I remember when I made the first cut, I was thrilled. I was thrilled just to make the first cut.”

Daniels has 60 days to choose Rush, Nation or Slaughter as Indiana’s 108th justice. As governor, he’s already chosen two of the current seven justices — Steven David in 2010 and Mark Massa earlier this year. * * *

Bob Reiling, now with Reiling, Teder & Schrier in Lafayette, was among roughly two dozen people who wrote letters to the Judicial Nominating Commission recommending Rush for the Supreme Court.

In it, he described Rush’s quick grasp of legal issues and her ability to handle “as was the case in the early 1980s ... subtle slights from the older male attorneys.” Reiling also lauded the variety of civil law issues that Rush handled, including “complex federal litigation” on age discrimination.

On Monday, Reiling said that Rush, upon joining his firm, easily stood out from other young, ambitious attorneys.

“So many young attorneys are eager and excited to do things well. She did everything well,” Reiling told the Journal & Courier. “She’s very compassionate and able to separate herself from the hubris that you often run into in the practice of law.

“She easily gets to the heart of the matter, and that has probably followed her through on the bench. She’s a mentally tough individual, and that’s a real attribute for someone who is an attorney or a judge. * * *

Rush also has been endorsed, via letters to the Judicial Nominating Commission and Daniels himself, by all 13 judges and magistrates in Carroll, Tippecanoe and White counties; state Sen. Ron Alting, R-Lafayette; former Purdue University president Martin Jischke and his wife, Patty; James Payne, director of the Indiana Department of Child Services; the Tippecanoe County Bar Association, which submitted a letter with 47 signatures; and a number of Indiana trial court judges, among others.

The Jischkes wrote about how they came to know Rush and how the system improved — prenatal care for women in jail, training for law enforcement and changes at the local DCS office — due in part to the child abuse summits. * * *

Joel Schumm is a clinical law professor at Indiana University Purdue University — Indianapolis and closely watches Indiana’s high courts. He points to comments that Daniels made when he named David and Massa, during which the governor cited their prior experience and commitment to judicial restraint.

“Judge Rush interviewed very well with the Judicial Nominating Commission,” said Schumm, who watched the interviews. “Her responses also reflected an appreciation of judicial restraint, which Governor Daniels has emphasized as important in his previous appointments.”

Posted by Marcia Oddi on Tuesday, August 14, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Courts - "Allen Superior Court Judge John F. Surbeck the William H. Rehnquist Award."

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

The National Center for State Courts is giving Allen Superior Court Judge John F. Surbeck the William H. Rehnquist Award.

The award is given annually to a state court judge to recognize judicial excellence. According the National Center for State Courts, the William H. Rehnquist Award honors judges who are taking bold steps to address a variety of issues affecting their communities.

The award recipient is recognized in the fall during an award ceremony at the U.S. Supreme Court. The award highlights the judge’s work to provide model programs for court systems throughout the United States, according to the national center.

Surbeck started Indiana’s first Re-Entry Court and is considered a nationwide pioneer in re-entry courts. Surbeck confirmed Monday he will be given the award.

The award will be presented in November by U.S. Supreme Court Chief Justice John Roberts during an evening ceremony at the U.S. Supreme Court.

Posted by Marcia Oddi on Tuesday, August 14, 2012
Posted to Indiana Courts

Ind. Courts - "Decision delayed on venue for David Camm's third trial in family's murder"

Grace Schneider reports in the Louisville Courier-Journal:

ROCKPORT, IND. — Finding a county courtroom north of Indianapolis in which to hold David Camm’s third trial in the slayings of his family is proving more complicated than anticipated.

Special Judge Jonathan Dartt said during a brief hearing on Monday afternoon in Spencer Circuit Court that no location had been set, but he promised to announce the selected venue as soon as it’s been finalized.

The place “is still an ongoing issue,” Dartt said, adding that it’s taken a lot of time to find a place.

Dartt already had approved a change of venue and agreed with defense lawyers Richard Kammen and Stacy Uliana and Special Prosecutor Stan Levco of Evansville that a location north of Indianapolis would provide enough distance from Southern Indiana to ensure a fair trial next year.

Uliana said after the hearing that the trial should take two to three months, so it’s a matter of finding of court that would be able to accommodate that much time. “We’re still trying to find a place that will have us,” she said.

Posted by Marcia Oddi on Tuesday, August 14, 2012
Posted to Indiana Courts

Monday, August 13, 2012

Ind. Law - "In passing the legislation to regulate what those private background check companies can release, lawmakers agreed to delay its implementation until 2013"

From a long story Sunday reported by Maureen Hayden of CNHI:

INDIANAPOLIS — Using a law passed last year aimed at giving people a “second chance,” hundreds of Indiana residents with years-old arrests for low-level crimes have been granted court orders shielding their criminal histories from employers.

The law has been hailed as a success, but there’s no guarantee yet that sealed-off information won’t show up on employment background checks that are conducted by third parties.

Earlier this year, the Indiana General Assembly passed a subsequent law that bars companies that buy and sell data used by employers in hiring decisions from releasing criminal records that have been shielded by the court.

But the law doesn’t go into effect until July. And there is some concern now that those private background-check companies will try to get the legislature to roll back the law before then, citing the difficulties and expense of updating computerized criminal records that they buy by the bulk and collect by the millions.

Later this month, a legislative study committee is slated to take up the issue. In passing the legislation to regulate what those private background check companies can release, lawmakers agreed to delay its implementation until 2013 to give those companies a chance to voice their concerns to legislators.

Backers of the 2011 law that allows for the shielding of some criminal records, say the law was intended to make it easier for people with years-old, nonviolent, low-level offenses to get a job. To date, the Indiana State Police has received hundreds of court orders requiring it to remove nearly 1,700 criminal records from public access.

This ILB entry from July 24th provides more information on last year's law. The 2012 bill was HEA 1033, use the link to see the final digest. The Enrolled Act is here, it is worth reading. SECTION 1 of the law adds a new IC 24-1-18, a chapter titled "Criminal History Providers." (The ILB has a number of entries on the law passed in 2011, HEA 1211, now codified at IC 35-38-8 as Restricted Access to Conviction Records.)

ILB: Prof. Eugene Volokh wrote in this Jan. 31, 2011 entry headed "Is It Libel to Say Someone Was Convicted of a Crime When the Conviction Has Been Expunged?" in the Volokh Conspiracy, quoting the NJ Supreme Court opinion in G.D. v. Kenny:

During a primary contest for State Senate, opponents of candidate Brian Stack issued campaign flyers criticizing him for previously hiring a person with a criminal conviction, plaintiff G.D. One campaign flyer stated that G.D. was “a DRUG DEALER who went to JAIL for FIVE YEARS for selling coke near a public school.” G.D. filed a lawsuit alleging defamation, violation of privacy, and other related torts, and named as defendants the Hudson County Democratic Organization and certain individuals, as the purported authors and distributors of the flyers. Defendants assert truth as a defense. * * * Defendants reason that G.D.’s conviction was a public fact maintained as a public record long before the expungement and that the publication of that fact during a political campaign was a legitimate exercise of their free-speech rights and did not violate G.D.’s reasonable expectation of privacy.

G.D. counters that the record of his conviction was expunged and, therefore, his conviction — as a matter of law — is deemed not to have occurred. * * *

It is true that under the expungement statute, as a matter of law, an expunged conviction is “deemed not to have occurred,” N.J.S.A. 2C:52-27 [ILB: here is a link]. But the expungement statute does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions or a personal diary. It cannot banish memories. It is not intended to create an Orwellian scheme whereby previously public information — long maintained in official records — now becomes beyond the reach of public discourse on penalty of a defamation action. Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth. [ILB emphasis]

Here is another Volokh entry on the topic, from Aug. 8, 2012.

This Volokh entry from July 6, 2010 is headed "Judges Order Newspapers to Delete Archive Stories." Fortunately, it looks like that specific situation was resolved.

Finally, this Volokh Conspiracy post from Stewart Baker, dated August 9, 2012, predicts what may happen next, based on recommendations of the European Commission.

Posted by Marcia Oddi on Monday, August 13, 2012
Posted to Indiana Law

Ind. Decisions - Challenges to BMV re drivers' licenses in both state and federal court

The ILB has been able to obtain the complaints filed by the Indiana ACLU, and the rulings, in the two cases mentioned in this ILB entry from August 10th.

The first is the Bloomington case, Orndorff v. BMV. It is now on appeal. Here is the ILB July 20th entry.

The second is the Indianapolis case, White v. BMV. Here is the most recent (Aug. 10) ILB entry.Also of interest are two brief notes from readers:

Posted by Marcia Oddi on Monday, August 13, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 10 NFP)

For publication opinions today (6):

In Michael Thalheimer v. Ramon and Stacey Halum , a 13-page opinion, Chief Judge Robb concludes:

Thalheimer waived the issue of the Halums’s spoliation of evidence by not presenting the issue to the trial court. The economic loss doctrine did not preclude the Halums’s negligence claim. The trial court did not abuse its discretion in determining the contract warranty did not bar the Halums’s breach of contract claim, or in finding that Thalheimer’s work was of poor quality. Therefore we affirm, but the Halums’s request for attorney fees is denied.
In E.J., a minor by his mother and father Victor and Lynell Jeffrey v. Paul Okolocha, M.D., Okolocha Medical Corp., and Okolocha Medical, Pain and Weight, a 14-page opinion, Jude Crone writes:
This case involves a very unfortunate set of circumstances. A New York couple adopted what they thought was a healthy baby boy from Indiana who, unbeknownst to them prior to the adoption, has profound neurological deficits which cause significant and permanent learning and physical abnormalities. A prenatal sonogram performed by the birth mother’s doctor revealed significant brain abnormalities in the unborn baby. Prior to finalizing the adoption, the adoptive parents sought the prenatal records of the birth mother from her doctor as well as postnatal records of the birth mother and the baby from the hospital. Although they received the postnatal records from the hospital, which revealed no problems, the adoptive parents did not receive any prenatal records, including the sonogram report, because the birth mother’s doctor did not send them those records. Nevertheless, the adoption was finalized. The adoptive parents subsequently learned of the baby’s neurological deficits and resulting learning and physical abnormalities.

The adoptive parents filed a complaint for negligence against the birth mother’s doctor alleging that the doctor was negligent in failing to provide them the prenatal records when they requested them. The doctor filed a motion for summary judgment contending that he had no legal duty to release the prenatal records to the adoptive parents because the medical records authorization submitted to him did not comply with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The adoptive parents responded with a motion for partial summary judgment contending, as a matter of law, that the doctor owed them a duty to provide them with the prenatal records at the time they requested them. The trial court agreed with the doctor and entered summary judgment in his favor. On appeal, the adoptive parents argue that the trial court erred in entering summary judgment in favor of the doctor on the issue of duty and in failing to enter partial summary judgment in their favor on the same issue. Concluding as a matter of law that the doctor owed no duty to the adoptive parents, we affirm the judgment of the trial court. * * *

We are mindful of the great emotional and monetary harm suffered by the Jeffreys in this case. However, it cannot be ignored that the Jeffreys and their attorneys were in the best position to avoid the harm suffered. The Jeffreys and their attorneys finalized the adoption of E.J. despite the fact that they had not received V.S.’s prenatal records from Dr. Okolocha. Unfortunately, there were tragic consequences to that gamble. Nevertheless, we cannot find a duty in negligence when none exists. Summary judgment in favor of Dr. Okolocha is appropriate. The judgment of the trial court is affirmed.

In In the Matter of the Term. of the Parent-Child Rel. of Ma.J. and My.J.; and K.B. v. Indiana Dept. of Child Services , an 18-age opinion, Judge Crone writes:
Mother has stopped taking prescription medications and has been in compliance with the drug court program. Mother will serve no additional time if she successfully completes the program. Mother has not been involved in any new incidents of domestic violence, and she has not been in a relationship since her release. Mother has an appropriate home, has been working, and has been visiting regularly with the girls.

However, the trial court terminated Mother's parental rights, finding that the conditions that resulted in the children's removal would not be remedied. In light of the undisputed evidence that Mother had eight months of solid progress in each area of concern, we conclude that DCS did not meet its burden of demonstrating that the conditions resulting in removal would not be remedied. Therefore, we reverse.

In CSL Community Association, Inc. v. Clarence Ray Meador, a 12-page, 2-1 opinion, Judge Bailey writes:
Country Squire Lakes Community Association, Inc., a homeowner’s association, (HOA), appeals the trial court’s grant of Clarence Ray Meador’s (Meador) motion for declaratory judgment, which abrogated Meador’s obligation to pay HOA dues and assessments. We reverse. * * *

Here, the trial court concluded that because the amenities in the Community had not been maintained, the changes in the Community were so radical that the original purpose of the Community and the deed restrictions were destroyed. The trial court therefore abrogated Meador’s obligation to pay dues and assessments. The HOA responds that the trial court’s decision “conflicts with long-established Indiana contract law.” * * *

We recognize that the HOA’s financial mismanagement and a change in the demographics of the Community have led to a revenue shortfall and an inability to maintain the Community’s amenities, and we appreciate the trial court’s attempt to provide relief following these untenable circumstances. However, the relief provided is not one afforded under Indiana law, and thus we cannot affirm the judgment. The abrogation of Meador’s obligation to pay dues and assessments is not a remedy for these problems, but there are potential alternatives that Meador and the HOA can investigate.3 * * *

Because the evidence does not support the trial court’s conclusion that the changes in the Community were so radical that the original purpose of the Community and the deed restrictions were destroyed, the trial court erred in abrogating Meador’s obligation to pay dues and assessments. Reversed.

RILEY, J., concurs.
CRONE, J., dissents with separate opinion. [that concludes] Real-estate speculators have turned what once was a well-appointed, well-financed, well-maintained, and well-patrolled retirement and recreational community into an economically and infrastructurally devastated eyesore. As such, I believe that the trial court did not err in abrogating Meador’s obligation to pay dues and assessments under the Covenants. That said, because a lot owner’s ability to vote is contingent upon his payment of assessments, I would reverse the trial court’s ruling that Meador may retain his voting rights.

Anastazia Schmid v. State of Indiana - "Anastazia Schmid appeals the denial of her petition for post-conviction relief. * * * As Schmid has not demonstrated counsels’ alleged errors were prejudicial, we affirm the denial of her petition for post-conviction relief."

In Dennis Feyka v. State of Indiana, an 11-page opinion, Judge May writes:

Dennis Feyka appeals his conviction of Class A felony child molesting.1 He argues the prosecutor’s comments during closing argument were fundamental error and the evidence was insufficient to convict him because the victim’s testimony was incredibly dubious. We affirm. * * *

Feyka argues the State did not present sufficient evidence to convict him of Class A felony child molesting because his conviction “was based solely on the uncorroborated and inherently dubious testimony of the child in question and was contradicted in material ways by others present in the house.” * * *

We acknowledge the conflicting testimony and some inconsistencies in T.B.’s own statements. However, we cannot find equivocal, coerced, or inherently contradictory T.B.’s statements establishing the elements of the crime and why she knew Feyka was the person who molested her. That T.B. did not immediately identify Feyka at trial is insignificant; she testified she had known Feyka for seven or eight years and he was a friend of her parents. As for T.B.’s pretrial statement she did not know whether the incident was a dream, the State notes the prosecutor questioned T.B. at length and T.B. testified she was positive it was real.

The jury, having heard T.B.’s testimony and having had the opportunity to determine the credibility of the witnesses, found Feyka guilty of molesting T.B. We must decline Feyka’s invitation to invade the province of the jury by reweighing the evidence and reassessing witness credibility. * * *

As alleged prosecutorial misconduct was not fundamental error and there was sufficient evidence to support Feyka’s conviction, we affirm.

NFP civil opinions today (6):

Elsa M. McLaughlin v. John C. Clark and Zore's, Inc. (NFP)

Gene Hildebrandt v. Pepsi America a/k/a Globe Transport (NFP)

Marshall Jackson v. Beckie Bennett (NFP)

Sherri Hilenburg and Dennis Hillenburg v. Paul D. Reeves and Norma J. Reeves Revocable Trust; Paul Reeves, Norma J. Reeves and John Reeves (NFP)

In the Matter of the Term. of the Parent-Child Rel. of D.Y.; M.Y. v. Indiana Dept. of Child Services (NFP)

Term. of Parent-Child Rel. of E.Y., Minor Child; A.Y., Mother v. Indiana Dept. of Child Services, and Child Advocates, Inc. (NFP)

NFP criminal opinions today (4):

Warren Parks v. State of Indiana (NFP)

Cleverly Lockhart v. State of Indiana (NFP)

Rachel Ann Ruch v. State of Indiana (NFP)

Jeffrey M. Steffen v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 13, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 10, 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, August 10, 2012. It is two pages (and 28 cases) long.

One transfer was granted last week, in the case of Utility Center, Inc. d/b/a Aqua Indiana, Inc. v. City of Fort Wayne, Indiana. In this case, the COA concluded on Jan. 13, 2012:

We conclude that judicial review of an administrative determination of just compensation should be limited to the consideration of whether there is substantial evidence to support the agency’s finding and order and whether the action constitutes an abuse of discretion, is arbitrary, capricious, or in excess of statutory authority as revealed by the uncontradicted facts. As such, judicial review is limited to the agency record and other evidence which suggests the agency lacked authority to render its decision. We further conclude that where a municipality actively seeks to avoid the appearance of impropriety and there is no evidence of actual impropriety, due process rights are not violated when a municipality’s employees serve as advocates and different employees of the same municipality serve as decision-makers in administrative proceedings.

Accordingly, the factual circumstances of this case lead us to affirm the trial court’s order declining to hold a jury trial and stating its intention to limit its review of the Board’s determination for an abuse of discretion.

Posted by Marcia Oddi on Monday, August 13, 2012
Posted to Indiana Transfer Lists

Environment - 2012 Edition of Indiana Environmental Statutes now available!

This is the new, 2012 edition of the annual publication, the Indiana Environmental Statutes, sponsored by the Environmental Law Section of the Indiana State Bar Association, that I edit and publish each year.

It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.

The 2012 General Assembly made many changes to the environmental laws, including the abolition of the three long-time environmental boards (air, water, and waste), replacing them with a single board. Because this new law does not take effect until Jan. 1, 2013, this year's volume includes both the current (effective until 1/1/13) and future (effective upon 1/1/2013) versions of the affected sections, of which there are many.

As a result, this year the soft-bound volume is 610 pp. (up from 570 pp.in 2011), but still costs $30.00 plus shipping (note that shipping is less if you pool orders).

Order online (a preview of several pages also is provided at this link).

Posted by Marcia Oddi on Monday, August 13, 2012
Posted to Environment

Vacancy #2 on Supreme Court 2012 - The ILB is anticipating the release of the Judicial Nominating Commission's report to the Governor

The three finalists were named by the Judicial Nominating Commision on Friday, August 8th. The next step will be formally submitting the names and evaluations to the Governor, as discussed in Prof. Schumm's entry earlier this morning. This ILB entry from August 2, 2010 set out the statutory requirements.

In 2010
, the names of the finalists were announced on Friday, July 30th, 2010 and the names and evaluations were publicly submitted to the Governor on Thursday, August 5th, 2010.

Earlier this year, the three finalists were named on Thursday, Feb. 23, 2012. Late on Thursday, March 1, 2012, the submission to the Governor was publicly released; it was dated February 29, 2012.

Posted by Marcia Oddi on Monday, August 13, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - "Comments raise judicial eyebrows"

That is the headline to Sunday's Walker/Roysdon Report in the Muncie Star-Press, by Douglas Walker and Keith Roysdon. Here are some quotes from the lengthy column:

As it unlikely as it seems, a Delaware County judge’s application for a state Supreme Court vacancy has provided fodder for local controversy.

Democrat Marianne Vorhees, judge of Circuit Court 1, was one of 10 finalists to succeed Justice Frank Sullivan Jr., retiring after 19 years on the state’s highest court.

(While Vorhees didn’t survive last week’s cut leaving three finalists, her showing might bode well for future advancement, especially if Hoosiers one day elect a Democratic governor.)

The applications of those judges and attorneys who hoped to replace Sullivan have been posted online for a few weeks. Only in recent days, however, the other four Delaware Circuit Court judges — Democrats Linda Ralu Wolf and Thomas Cannon Jr., and Republicans John Feick and Alan Wilson — became aware that Vorhees had referred to them, and not as character references, on her application.

In March, the four judges other than Vorhees issued a mandate ordering Delaware County officials to restore salaries for court employees that had been reduced by the county council.

Wolf, Cannon, Feick and Wilson also mandated that the county’s judges, rather than the council, oversee the local court system’s annual $1.8 million budget.

That mandate set the stage for a legal dispute between the judges and the county council that has yet to be resolved.

Vorhees didn’t sign that mandate, or an earlier one, later rescinded, that concerned plans by the Delaware County commissioners to close the County Building on Fridays.

Her application to become a Supreme Court justice included a summary of her career’s major cases — and an account of the local mandate conflict.

“I would like to make it clear I did not sign either mandate,” Vorhees wrote. “I disagreed with my colleagues’ decision to issue the mandate orders, even though my opinion has not been a popular one. * * * I respect the role of the county council and the county commissioners in making the decisions that the law charges them to make.”

Court watchers say Vorhees’ Delaware Circuit Court colleagues last week were less than pleased — and also surprised — that she chose to raise the local issue on her application.

Judges being judges, no public remarks were issued to reflect just how rankled they are. The current judges are decidedly less inclined to be publicly rankled than were some of their predecessors.

In April, Indiana’s chief justice, Brent Dickson, ordered the county council and Delaware County’s judges to try to resolve their dispute through mediation.

It didn’t work.

On June 30, mediator John Krauss wrote Dickson, reporting that a June 7 mediation session “and subsequent discussions did not result in a settlement.”

It now falls to the Supreme Court to appoint a hearing officer — a Hoosier attorney or judge — to conduct a quasi-trial on the mandate issue.

ILB: Interesting, particularly since the Muncie Star-Press reported the budget dispute in March, and the ILB quoted from the story here on March 16th, including this:
The budget -- and the judges' interest in controlling their own $1.8 million courts budget -- is at the heart of the dispute. All five local Circuit Court judges have been to recent council meetings and asked for that control. * * *

The judges ordered council to "provide funding as outlined in the 2012 budget proposed by the judges in June 2011."

"Such funding will be fully and completely appropriated by the council as presented by the judges immediately," the mandate reads. * * *

King said Thursday afternoon that he didn't understand the reason for the mandate.

"I thought all the judges wanted was their girls' salaries to be brought back up," [Council president James] King said. "We showed in good faith that was what we were going to do. I don't understand what the courts want." * * *

Besides Wolf, Thursday's order of mandate was signed by Circuit Court 2 Judge Alan Wilson, Circuit Court 4 Judge John Feick and Circuit Court 5 Judge Thomas Cannon Jr. Delaware Circuit Court 1 Judge Marianne Vorhees did not sign the order.

In their mandate, the judges write that they realize the mandate was "an extraordinary action to stand for judicial independence."

The judges have hired Indianapolis attorneys Phil Isenbarger and Karl Mulvaney to represent them and the judges, in their mandate, warn that council "will be required to pay legal expenses" associated with the mandate.

Posted by Marcia Oddi on Monday, August 13, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - Final Thoughts on the Second Round

Commentary by Joel Schumm, a professor at Indiana University's Robert H. McKinney School of Law

I’ve heard from a number of people who have expressed a variety of reactions to Wednesday’s interviews and list of finalists. The following are a few thoughts on the second round of interviews.

It’s All About the Interview

Again, the interview is crucial. As explained in this post after the first round, the interview “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?" During the second round, the questions were tougher and deeper. Some candidates did better than others in providing answers that were thoughtful, clear, and concise. If I struggled to find a way to summarize the answer, chances are at least some members of the Commission were struggling to understand it as well. After the morning interviews, I thought Geoff Slaughter had the best interview, and by the end of the day I thought Judge Rush had the best of the day. Others had solid interviews and very strong paper applications, but the applicant pool is incredibly competitive at this stage.

Some of the Commission members’ questions suggested a focus on applicants’ experience with civil cases, especially complex ones. The recent retirements leave an especially deep void in this area. The finalists each have extensive experience in practice and/or the bench in the civil arena, including a wide variety of different types of issues. Each also has been in practice well over two decades.

Does the Interview Schedule Advantage Some Applicants?

Indiana’s selection process is more open and transparent than most states, and this arguably comes with some costs. For example, an applicant who interviews later in the day has the advantage of being able to review summaries of earlier interviews,or hearing reports from others who have been present in the interview room. In writing these summaries through six rounds of interviews over the past two years, I’ve generally thought any benefit was negligible because the questions varied or required application of specific information for which knowing the question would help only slightly. This round seemed a little different; knowing the questions in advance could have been an advantage.

Three examples are considered below. Although there is seldom one right answer to some of the types of questions asked, some responses are problematic. An answer that displays a fundamental misunderstanding or ignorance of the legal principles involved could prove disqualifying, and responses that show opposition to the questioner’s viewpoint may weigh against applicants in a highly competitive field. Of course no sample or model answer will later be provided by the Commission, so the thoughts below are purely my own.

Advance notice of difficult questions offers applicants an opportunity to contemplate and organize a response, and nothing precludes research or discussion with others. To avoid any perception of unfair advantage in the future, the Commission could consider instructing applicants they are not to discuss or read anything about the earlier interviews.

The Non-Unanimous Commission Vote

Unfortunately, I missed the 7:30 p.m. vote on the finalists. I’ve seen previous ones. One member makes a motion that X, Y, and Z be finalists, someone seconds it, and everyone says “aye” or at least it seems they do. There is no public expression of disagreement, even if the Commission had gone through hours of supposedly heated discussions as with the Shepard vacancy earlier this year. This round, though, Niki Kelly of the Fort Wayne Journal Gazette stuck around for the vote and reported, “One commission member, Terre Haute attorney James McDonald, voted against the choice of finalists but wouldn’t comment further on why."

Did Mr. McDonald disagree with all or some of the finalists—and whom would he have selected instead? It would be interesting to know the specific vote, by Commission member, for this and previous vacancies. But there is a potential downside to providing individual votes and rationales. Imagine if the Governor selects a justice who squeaked by on a 4-3 Commission vote, and those three Commission member's explanations of their votes were particularly negative. Or imagine if the Chief Justice, who will serve with the new justice for many years to come, is on the record as having voted against him or her. That might be a little awkward, at least at first.

The Commission’s practice has been to submit the three names and evaluations in a single, seemingly unanimously approved, letter from the Chief Justice. The statute arguably envisions more than a single letter from the Chief Justice. Subsection (a) states: “The judicial nominating commission shall submit to the governor, from those names the commission considers for a vacancy, the names of only the three (3) most highly qualified candidates. In determining which candidates are most highly qualified each commission member shall evaluate each candidate, in writing . . . .” Subsection (f) provides “The commission shall submit with the list of three (3) nominees to the governor its written evaluation of each nominee, based on the considerations set forth in subsection (a). The list of names submitted to the governor and the written evaluation of each nominee shall be publicly disclosed by the commission.”

Will the Commission submit a single letter this round, or will Mr. McDonald write separately to explain his disagreement?

Whom Will the Governor Appoint?

In his statements appointing Justice David and Justice Massa, Governor Daniels cited both their previous experience and their commitment to judicial restraint. With Justice David he remarked, “I heard from Steve David the clearest expression of commitment to proper restraint in jurisprudence, and to deep respect for the boundaries of judicial decision-making. He will be a judge who interprets rather than invents our laws.” (The Barnes decision would seem to be a disappointment on this score, and, ironically, was identified by Judge Vorhees, the only Democrat in the group of ten semi-finalists, as a decision that “overreached” and could have been decided on narrower grounds.) I assume the Governor will maintain this focus on judicial restraint when he interviews the three finalists. Judge Rush and Mr. Slaughter’s answers during the second round of interviews may resonate on this point.

Posted by Marcia Oddi on Monday, August 13, 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, August 12, 2012:

From Saturday, August 11, 2012:

Posted by Marcia Oddi on Monday, August 13, 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 8/13/12):

Next week's oral arguments before the Supreme Court (week of 8/20/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/13/12):

Next week's oral arguments before the Court of Appeals (week of 8/20/12):

Tuesday, August 21

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, August 13, 2012
Posted to Upcoming Oral Arguments

Sunday, August 12, 2012

Ind. Gov't. - "Legislative committee to look at DCS issues: First meeting scheduled Aug. 22"

Marisa Kwiatkowski reports for the NWI Times in a long story:

INDIANAPOLIS | On Aug. 22, the General Assembly's interim study committee on the Indiana Department of Child Services will convene the first in a series of meetings to discuss the state agency's policies and procedures.

DCS has faced heavy criticism from legislators and child advocates throughout the state over the deaths of several Indiana children whose families had prior contact with DCS. They also have challenged the operation of DCS' centralized abuse and neglect hotline.

"Our primary goal is to share with legislators and the public what we do, how we're striving to provide better outcomes and the promising results we're getting," John Ryan, DCS chief of staff, said in a written statement. "We also are eager to hear concerns in a fair and constructive manner that leads to solutions that really do help children and families." * * *

The legislative committee is charged with studying 14 topics, including best practices concerning child welfare, child mental health and delinquent children; the child abuse and neglect hotline; the long-range needs of DCS; crucial problems in DCS; and the availability and quality of services provided to families in need of services. * * *

While the DCS-focused legislative committee is slated to address mental health needs of children, there also is a Commission on Mental Health and Addiction that is charged with studying the unmet health health needs of children in the juvenile justice system, and whether prosecuting attorneys should be allowed to file a petition alleging a child in need of services.

As of Wednesday [August 8th], that committee had not scheduled its first meeting.

ILB: Here is the agenda for the first meeting. Note that you may watch it online from the link provided on the agenda.

Here is a link to the calendar of all upcoming interim legislative meetings, and a link to a list of the interim committees, including the Department of Child Services Interim Study Committee.

Posted by Marcia Oddi on Sunday, August 12, 2012
Posted to Indiana Government

Ind. Gov't. - "Schererville considers new fee for misdemeanor arrests"

Chas Reilly reported last week in the NWI Times:

SCHERERVILLE | Town officials have different opinions of a proposed service charge and release fee that would be paid in addition to bond posted in misdemeanor arrests filed in Town Court.

A proposed ordinance, which would establish the $35 fee, received a 3-2 vote this week during its first reading. Councilmen Jerry Tippy and Hal Slager voted against it.

They are concerned the fee would not be reimbursed if a person is found not guilty.

Police Chief David Dowling said the fee, which was recommended by the Schererville Safety Board, wouldn't be reimbursed because the service already would have been rendered.

Dowling said some neighboring towns already issue the fee. Schererville's fee structure is in the "same ballpark" as those fees, he said.

Funds collected from the fee would go toward police equipment, Dowling said.

Posted by Marcia Oddi on Sunday, August 12, 2012
Posted to Indiana Government

Ind. Gov't. - "Lake County officials promote new online tax sale"

Bill Dolan reported last week in the NWI Times:

CROWN POINT | Lake County Treasurer John Petalas and Auditor Peggy Katona are urging the public to get online for their upcoming tax sale.

Indianapolis-based SRI will hold the first Internet auction of tax delinquent properties for the treasurer's office during 10 days beginning Friday.

Petalas said the public can bid on any of the approximately 18,000 real estate parcels by logging into the SRI website at www.sri-auctionsonline.com. A total of $97 million in back taxes is owed on the properties, he said.

The online auction replaces a traditional sale where bidders have to be present in the Lake County Government Complex auditorium for hours as the auctioneer goes one by one through each property.

Here is the relevant SRI tax sale webpage and information about online auctions.

Posted by Marcia Oddi on Sunday, August 12, 2012
Posted to Indiana Government

Environment - "Man Charged for release of hazardous chemicals downtown"

From a brief WISHTV8 story dated August 7th:

INDIANAPOLIS (WISH) - An Indianapolis man is facing charges for storing and disposing of hazardous waste improperly near downtown.

United States Attorney Joe Hogsett announced Tuesday that Euranus Johnson has been charged with the unlawful storage and disposal of hazardous waste after an investigation by the U.S. Environmental Protection Agency. * * *

The information alleges that Johnson, the owner and operator of The Antique Chrome Shop at 1925 Massachusetts Avenue, near downtown Indianapolis, illegally stored and disposed of hazardous waste at the facility from January 2011 through June 2011. According to the allegations within the information, a renter at the property was washing the floor of the facility when the water reacted to chemicals left behind by Mr. Johnson. This allegedly caused a toxic green liquid to flow down the driveway into the streets of the nearby residential neighborhood.

Emphasis by ILB.

Posted by Marcia Oddi on Sunday, August 12, 2012
Posted to Environment

Vacancy #2 on Supreme Court 2012 - Editorials supporting Judge Loretta Rush

The Lafayette Journal-Courier ran this editorial August 10th:

We stand by what we said earlier this summer, when the original 22 applicants for a vacancy on the Indiana Supreme Court surfaced: The composition of people sitting on the bench matters.

Specifically, that meant that with all things being equal among candidates, it’s time that a woman is seated on the state’s high court.

That remains true — and not simply because the candidate we’re most familiar with is the only candidate of three remaining who fits the bill.

Tippecanoe Superior 3 Judge Loretta Rush’s name — along with those of Hamilton Superior Court Judge Steven Nation and Indianapolis attorney Geoffrey Slaughter — this week were delivered to Gov. Mitch Daniels as finalists for the seat. Daniels has 60 days to choose.

Rush, we believe, would make a fine state Supreme Court justice. Her work in Tippecanoe County’s juvenile court has been inspired.

It’s a bit odd that in a process that seemed designed to meet the challenge to diversify the court a bit — 16 women made up the field of 22 candidates — that one woman and two men remain. That’s no knock against Nation or Slaughter. But the court, which has included only one woman in its history, is overdue for some semblance of gender equity.

Daniels is in luck on that account. He still has Rush, a completely qualified candidate, there ready and waiting.

The Richmond Palladium-Item followed today with this longer opinion piece, including a nice photo. Some quotes:
Loretta Rush would like to be Indiana’s next Supreme Court justice.

Many local residents will have more than a passing interest in the fact that she is among three finalists being considered for the post on Indiana’s highest court.

More than a passing interest even in the fairness question of being only the second female in Indiana history to hold a high position on the court.

In Tippecanoe County Juvenile Court Judge Rush, Richmond and Wayne County can lay claim to a “favorite daughter,” if you will, a graduate of Richmond High School who worked her way through college and law school driving the school buses manufactured at the old Wayne Works plant — where her father was long employed — to their destination school districts. * * *

“I think Richmond has great judges,” Rush said of her past classmates and colleagues during an interview Friday with the Palladium-Item from her office in Lafayette.

The respect apparently runs both ways.

“She is one of the people who trained me when I went through judge orientation,” Dolehanty said of Rush, noting her title as president of the Indiana Council of Juvenile & Family Court Judges, of which Dolehanty is a member.

“She’s down to earth, a good common-sense person. If you met her you’d walk away saying ‘I like her.’ She’s well thought of all the way across the board and she’s one of the leaders of the Indiana trial bench.”

Adds Judge Kolger, who graduated RHS a year after her, in 1977, “She is without a doubt one of the top juvenile judges in the state of Indiana and knows that area as well as anybody in the state. She’s also a wonderfully well-rounded person and is genuinely a very kind and very nice person.” * * *

The search for Indiana’s next Supreme Court justice represents, or should represent, a balanced quest for excellence and fairness.

Since we are less familiar with the judicial temperament and qualifications of the other two Supreme Court hopefuls, the question of excellence necessarily falls to others on the nominating committee with that expertise and knowlege.

But on the equally important matter of fairness, we should remind ourselves that with 16 women among the original field of 22 candidates for this post, with women now holding their own in law schools and increasingly in legal practices across America, something seems terribly amiss if Indiana could find but one person ever to measure up and assume the seat.

And that something simply cannot be the candidate in every case.

Posted by Marcia Oddi on Sunday, August 12, 2012
Posted to Vacancy #2 on Supreme Court 2012

Saturday, August 11, 2012

Ind. Law - When Can a Child Be Left Alone? Vehicles and Beyond

Commentary by Joel Schumm, a professor Indiana University's Robert H. McKinney School of Law

In recent weeks several parents have left their children alone in vehicle and been arrested and charged with neglect of a dependent. Few would disagree that leaving a young child alone in a vehicle with an interior temperature that quickly rises above 100 degrees meets the statutory definition of placing “the dependent in a situation that endangers the dependent's life or health.” Ind. Code § 35- 46-1-4(a)(1). These are the easy cases.

But what about a grandmother who left her ten-year-old grandson in a running vehicle with air conditioning running for 50 minutes in a parking lot at Lafayette Square Mall in Indianapolis? She was initially arrested by police, but the Marion County Prosecutor ultimately decided not to charge her with a crime. This is a tougher case. The prosecutor’s explanation: “There was not enough evidence to file charges in this case given the facts and circumstances presented,” according to the statement issued.

So where is the line for parents leaving children in vehicles? Is it one drawn by temperature, age of the child, length of time, location of the parking lot, or some other considerations?

Must be an “actual and appreciable” danger

An earlier version of the statute criminalized placing “the dependent in a situation that may endanger his life or health.” State v. Downey, 476 N.E.2d 121, 122 (Ind. 1985) (emphasis added). The Indiana Supreme Court was troubled by the inclusion of the word “may”: “Under this language, it would be a crime to raise a child in a high-rise apartment or to mop the kitchen floor with a bucket of water in the presence of a small child.” Although it ultimately reversed and remanded the trial court’s grant of a motion to dismiss, the Court made clear the statute must be read narrowly to provide minimum due process notice to citizens:

“The purpose of the statutory provision here is to authorize the intervention of the police power to prevent harmful consequences and injury to dependents. . . . The overall purpose of the statute as contemplated by the legislature would be well-served without the dimension in scope added by the term ‘may.’ We therefore construe this statute so as to exclude that dimension. Therefore, the statute is to be regarded as applying to situations that endanger the life or health of a dependent. The placement must itself expose the dependent to a danger which is actual and appreciable. Even with this construction, there is a residual vagueness presented. However, when it is considered with the other concepts of neglect, care, custody, control, dependent, places, life, and health, and in conjunction with the social problem dealt with, minimal due process notice requirements are met.”

More recently, the Indiana Court of Appeals built on Downey in reversing convictions for neglecting arising out of a parent who played a “hostage game" with children, explaining “the child must be exposed to some risk of physical or mental harm that goes substantially beyond the normal risk of bumps, bruises, or even worse that accompany the activities of the average child. This is consistent with a “knowing” mens rea, which requires subjective awareness of a “high probability” that a dependent has been placed in a dangerous situation, not just any probability.”

No clear answer for many scenarios

When I first read about the arrest of the grandmother who left a ten-year-old in an air-conditioned car, I was a little surprised. Others disagreed, though, explaining the problem was not the temperature of the vehicle or age of the child, but that someone had been left in a running vehicle in a parking lot at Lafayette Square, which posed a risk of carjacking. This made me a bit uncomfortable. Is it okay to leave children in vehicles at some malls and not others? How is a parent supposed to assess what is a high risk area and what is not?

Beyond vehicles, under the broadly worded statute parents face a risk of prosecution for neglect in a number of other scenarios. At what age can a child be left to wander alone through the mall? Or does it depend on which mall? Can a young child be allowed to ride the city bus alone?

At what age can a child be left home alone without a babysitter? Can a very young child be left home alone with an eleven or twelve year old in charge? A 2008 Court of Appeals opinion reversed a conviction for neglect for a mother who left her seven-year-old home alone for up to three hours, relying on the specific facts and concluding “[a] conviction on the scant evidence presented in this case would amount to a per se rule that merely leaving a seven-year-old child home alone for any period of time constitutes neglect of a dependent, as a Class D felony.”

I don’t know the answers to these questions, and my opinion is not going to keep a parent from being arrested or charged. Ultimately, each county’s elected prosecutor has a great deal of discretion in deciding which cases to charge. As Judge Barnes, a highly-regarded county prosecutor for most of his professional life before appointment to the Court of Appeals, put it in Gross: “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.” Police similarly must make tough calls about arresting individuals when a crime is not clear, although most will take cues from prosecutors who provide clear direction.

Although each case is certainly different, citizens should expect something more precise than “it just depends on the facts.” Some general guidelines would be useful when the stakes are so high. Parents believed to have violated the statute are not given a ticket or a slap on the wrist; they are arrested and charged with a felony. This not only means the possibility of time in prison but may lead to a lifetime of greatly diminished job opportunities, the potential for deportation for some individuals, and many other collateral consequences.

Some general guidelines would be useful when the stakes are so high. Perhaps the General Assembly could add amend the statute to add greater precision than the current "situation that endangers the dependent's life or health" language.

[ILB] If you are an elected prosecutor or deputy prosecutor who makes charging decisions, we welcome your thoughts. We can identify you by name or preserve your anonymity by referring to you as a “deputy prosecutor in Southern Indiana,” “an elected prosecutor in Northern Indiana,” etc.

Reporters might consider interviewing the county prosecutor to ask some of these questions and provide useful guidance to your readers, viewers, and listeners.

Posted by Marcia Oddi on Saturday, August 11, 2012
Posted to Indiana Law

Friday, August 10, 2012

Vacancy #2 on Supreme Court 2012 - Shella: "Will Daniels choose a woman for the Supreme Court?"

See this entry from WISHTV's Jim Shela's blog. A quote:

Before Daniels chose Mark Massa to fill the last Supreme Court vacancy he declared that if other factors were equal he would give added weight to a female applicant. Daniels, who chose African American Judge Rudy Pyle to fill a spot on the State Appeals Court earlier this week is not tipping his hand this time. “It seemed to be a strong group,” he said. “So, I’ll be looking forward to sitting down with all of them very soon. I don’t know any of them really.”

Posted by Marcia Oddi on Friday, August 10, 2012
Posted to Vacancy #2 on Supreme Court 2012

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

Updating this ILB entry from July 20, 2012, the ACLU of Indiana has this afternoon announced:

To prevent a working mom of six children from facing financial "disaster and ruin," a Marion County judge today granted a preliminary injunction in a lawsuit by the American Civil Liberties Union of Indiana and private counsel Scott DeVries against the Indiana Bureau of Motor Vehicles, which reinstates the mom's driving privileges, and may pave the way for thousands of Hoosiers faced with similar circumstances to obtain redress.

"This decision is important, not only for our plaintiff, but for the thousands of people who are being unfairly deprived of their licenses by the application of a law for which no rules have even been issued," said Ken Falk, the ACLU of Indiana's legal director. Falk added, "The court's ruling makes clear that merely possessing a driver's license does not necessarily require someone to have auto insurance, and it is unlawful for the BMV to punish people who have not violated the law and to proceed with unpromulgated regulations."

In June, the ACLU of Indiana filed the lawsuit, Lourrinne M. White, et al. v. Indiana Bureau of Motor Vehicles, in Marion Superior Court. White's Indiana driver's license had been suspended for a year because the BMV selected her name from a list of people who were previously suspended because they had operated a motor vehicle while uninsured. The BMV then sent White a suspension notice, even though as a person who didn't own a registered car and who was not driving, she was not legally required to have insurance. The case alleged that the BMV's actions were contrary to Indiana law and violated due process as guaranteed by the Fourteenth Amendment to the U.S. Constitution.

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

This is a different case from that described in the earlier entry, which involved a Bloomington woman and is on appeal.

BTW, the ILB objects to the many stories and news releases which say only something like "a Marion County judge" -- Indiana's citizens elect or vote to retain judges and they should have the information to make an informed decision in the voting booth. Identify judges in news stories about their rulings.

Posted by Marcia Oddi on Friday, August 10, 2012
Posted to Ind. Trial Ct. Decisions

Vacancy #2 on Supreme Court 2012 - " Gov. Mitch Daniels has had two opportunities in the past two years to appoint a woman to the all-male Indiana Supreme Court, and twice he has declined. Now he has a third chance."

That is the lede to this AP story today by Charles Wilson, here in the South Bend Tribune. Some quotes:

Attorney Karen Celestino-Horseman, an Indianapolis attorney, said Daniels had urged women to apply for the Supreme Court opening. Yet despite the fact that the overwhelming majority of applicants were female, two-thirds of the finalists were men.

"That does give one pause," she said. "If the Supreme Court is supposed to be representative of all the people in the state of Indiana, and given that the state is more than 50 percent women, the court is incomplete without a female justice."

A law professor who studies the state appellate courts said he understood why some people were disappointed when only a handful of the female applicants advanced.

"I worry that it will discourage women from applying in the future. I certainly hope it does not," said Joel Schumm, a professor at Indiana University's Robert H. McKinney School of Law in Indianapolis.

More:
Daniels has 60 days to select one of the three: Tippecanoe County Judge Loretta Rush, Hamilton County Judge Steven Nation or Indianapolis attorney Geoffrey Slaughter. Sixteen women and six men applied for the vacancy * * *

Court spokesman David J. Remondini said the commission made its selections based on applications and interviews.

Posted by Marcia Oddi on Friday, August 10, 2012
Posted to Vacancy #2 on Supreme Court 2012

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

For publication opinions today (2):

In HDNET LLC v. North American Boxing Council, a 15-page opinion, Sr. Judge Darden writes:

HDNET LLC (“HD”) appeals the trial court’s grant of partial summary judgment in favor of North American Boxing Council (“NABC”). We reverse and remand.

ISSUES
1. Whether the trial court erred in determining as a matter of law that the Indiana Uniform Trade Secrets Act (“IUTSA”) did not preempt NABC’s common law claim for idea misappropriation where the claim did not rise to the level of a statutorily-defined trade secret.
2. Whether the trial court erred in determining as a matter of law that the IUTSA did not preempt NABC’s statutory claim for civil conversion of its idea. * * *

[Opinion deals extensively with statutory construction]

CONCLUSION
The IUTSA is intended to foster uniformity in the definition of state laws, and a party may not read this design out of the statutory scheme under the guise of “plain language” or any other rule of construction. NABC’s “plain language” reading of IUTSA’s preemption provision lays waste to both legislative intent of the IUTSA and the overall intent of the UTSA. Accordingly, the trial court erred in granting summary judgment on NABC’s idea misappropriation claim.

NABC’s civil conversion claim does not fall within the “criminal law” exception to the IUTSA’s preemption provision. Therefore, the trial erred in granting summary judgment on the claim. Reversed and remanded for further proceedings.

In Teresa A. Houser, Personal Rep. of the Est. of Anonymous Physician, Deceased v. Stacy Kaufman, C.K., and Brent Kaufman; Teresa A. Houser, Personal Rep. v. Stacy Kaufman, et al. , a 23-page opinion, Judge Barnes writes:
Theresa Houser, as Personal Representative of the Estate of Anonymous Physician Dr. K. (“the Estate”), appeals the trial court’s denial of the Estate’s motion for summary judgment in the medical malpractice suit filed by Stacy Kaufman. C.K. appeals the trial court’s grant of summary judgment in favor of the Estate with respect to his medical malpractice claim against Dr. K. We affirm.

The restated issues before us are:
I. whether Stacy’s claim against the Estate is constitutionally time-barred by the Medical Malpractice Act’s statute of limitations; and
II. whether C.K.’s claim against the Estate fails because Dr. K. owed no duty to C.K. * * *

Conclusion. We affirm the trial court’s denial of the Estate’s summary judgment motion to the extent it sought to bar Stacy’s claim under the Act’s statute of limitations. We also affirm its granting of summary judgment to the Estate with respect to Dr. K. owing no duty to C.K.

NFP civil opinions today (1):

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

NFP criminal opinions today (2):

Daniel Joseph Sheets v. State of Indiana (NFP)

Ronald Graham v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 10, 2012
Posted to Ind. App.Ct. Decisions

Thursday, August 09, 2012

Vacancy #2 on Supreme Court 2012 - Videos available on Youtube of finalist interviews

Thanks to the ISBA, the ILB is able to link to the YouTube videos of the following interviews:

Interview: Hon. Loretta H. Rush

Interview: Hon. Steven R. Nation

Interview: Geoffrey G. Slaughter

Posted by Marcia Oddi on Thursday, August 09, 2012
Posted to Vacancy on Supreme Court 2012

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

For publication opinions today (2):

In Daniel Sandlin v. Tamara Sandlin , an 11page opinion, Chief Judge Robb writes:

Several months after the dissolution of the marriage of Daniel Sandlin (“Father”) and Tamara Sandlin (“Mother”), Father filed a verified motion for emergency hearing and modification of custody, and Mother filed a verified petition to modify child support. Following a hearing, the trial court entered an order which Father now appeals and Mother cross appeals.

Father does not challenge the trial court’s order to modify child support, but raises two challenges to the trial court’s calculations in doing so. We expand and restate Father’s challenges as four issues: 1) whether the trial court improperly failed to conclude Mother voluntarily left her former job and thus failed to impute income to Mother; 2) whether the trial court miscalculated Mother’s current income; 3) whether the trial court improperly failed to explicitly order that Father cease paying to Mother an annual clothing allowance for the children; and 4) whether the trial court incorrectly determined the number of overnights for which Father should receive parenting time credit toward his child support obligations. On cross appeal, Mother agrees with Father’s assessment of and challenge to the trial court’s determination of Father’s parenting time credit and requests we make this correction without resorting to remand.

We conclude the trial court correctly did not impute income to Mother, but improperly failed to calculate Mother’s current income based on the evidence, and improperly failed to explicitly order that Father cease paying to Mother a clothing allowance. We also conclude that, based on the parties’ apparent appellate agreement, Father’s parenting time credit should be substantially reduced. Therefore, we reverse and remand with instructions for the trial court to review the evidence presented without the need to hold an additional hearing, and amend its order modifying child support as directed.

In Guydell Watson v. State of Indiana , a 13-page opinion, Sr. Judge Darden writes:
Issues. 1. Whether the trial court abused its discretion in instructing the jury. 2. Whether the trial court abused its discretion in refusing to appoint an expert at public expense. 3. Whether the trial court improperly granted the State’s motion in limine. * * *

[1] Accordingly, we find that operating a vehicle with a BAC of at least .08 percent but less than .15 percent is an inherently lesser-included offense of operating a vehicle with a BAC of at least .15 percent. We therefore find no abuse of discretion in instructing the jury on operating a vehicle while intoxicated as a class C misdemeanor.

[2] Watson next asserts that the trial court improperly denied his request for expert witness funds, where he sought to hire an expert to decipher the results of tests performed on the Datamaster used by Officer Holtzleiter. * * *

Watson failed to meet his burden of demonstrating a need for the appointment of an expert. We therefore find no abuse of discretion in denying Watson public funds with which to hire an expert witness.

[3] Watson asserts that the trial court improperly granted the State’s motion in limine, which sought to exclude any evidence regarding the Datamaster’s repair history. Watson argues that “[a]s far as evidence of guilt, . . . there were the error reports of the Datamaster that seemed ripe for review by an independent expert witness.” * * *

In this case, Watson fails to argue, or cite to that portion of the transcript reflecting such an argument, if any, that he requested relief during the trial from the trial court’s prior ruling on the motion in limine or otherwise sought to present any evidence regarding the Datamaster’s repair or test records. Watson therefore has waived his arguments regarding the trial court’s granting of the State’s motion in limine and exclusion of evidence.

NFP civil opinions today (4):

Nicole (Mooney) Thompson v. Terry Mooney, Jr. (NFP)

In Indiana Bureau of Motor Vehicles v. Katherine Linton-Waltman (NFP), a 5-page opinion, Sr. Judge Darden writes:

Issue. Whether the trial court’s order can be reviewed under the public interest exception to the mootness doctrine. * * *

BMV contends that the trial court misinterpreted the interplay among Indiana Code sections 1, 3, and 6.5 in its order granting Linton-Waltman’s petition for a hardship license and in its order denying BMV’s motion for relief from judgment. BMV recognizes that Linton-Waltman’s suspension has already expired; therefore, the question is moot as to this particular controversy. BMV argues, however, that the public interest exception applies “because the issue is likely to recur, given the frequency of driver’s license suspensions, and because granting a [hardship] license to a driver who has violated the law involves public safety concerns.” BMV Br. at 4 n.1 (citing Silverman v. Fifer, 837 N.E.2d 186, 187 (Ind. Ct. App. 2005) (holding that licensing issues, though moot, should be addressed because the issue is “liable to recur and involves issues related to public safety”). “In such cases, we may, at our discretion, make an exception to the mootness doctrine and address the merits of the case.” Id.

Our research discloses that Indiana Code section 9-24-15-3 has been amended, and now reads in part that a person’s petition for a hardship license must include information that the petitioner has never been “previously suspended.” This version of the statute became effective on July 1, 2012. See P.L. 125-2012 § 217. While the issue raised is related to public safety, the specific issue is not liable to recur because the change in the statute’s language is significant. We will not address the merits of the moot issue of this case.2
_________
2 BMV also alleges that its motion for relief from judgment was erroneously denied on a second basis pursuant to Indiana Code section 9-24-15-6.5. Our reading of the trial court’s order does not support BMV’s allegation.

Tina Glover v. Indiana Family and Social Services Administration (NFP)

In the Matter of the Term. of the Parent-Child Rel. of: V.B. and Y.B. v. The Indiana Dept. of Child Advocates, Inc. (NFP)

NFP criminal opinions today (6):

Todd Slavin v. State of Indiana (NFP)

James A. Carr v. State of Indiana (NFP)

Gregory A. Smyser v. State of Indiana (NFP)

Robert Oldham v. State of Indiana (NFP)

Marquise T. Holmes v. State of Indiana (NFP)

Anthony W. Smith, Bobby J. McDaniel v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 09, 2012
Posted to Ind. App.Ct. Decisions

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

In Richards v. Mitcheff (SD Ind., Barker), a 6-page opinion, Chief Judge Easterbrook writes:

[Danny] Richards, a prisoner of Indiana, had complained since January 2008 about abdominal pain and blood in his stool; physicians in the prison system assured him that he was fine, but they were wrong. In October 2008 they sent him to a hospital, where specialists diagnosed ulcerative colitis. By then it was too late to do anything but excise the colon and attempt some palliation.

Richards filed this suit under 42 U.S.C. §1983 in December 2010, contending that defendants violated the eighth amendment by indifference to his serious medical condition. ... On defendants’ motions, the district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6), ruling it untimely. 2011 U.S. Dist. LEXIS 94961 (S.D. Ind. Aug. 22, 2011). Suits under §1983 use the statute of limitations and tolling rules that states employ for personal-injury claims. ... Indiana allows two years. Ind. Code §34-11-2-4. Federal law defines when a claim accrues, ... , and the federal rule for medical errors is that a claim accrues when a person knows his injury and its cause. .... The district judge concluded that Richards knew, no later than October 2008, that he had ulcerative colitis that defendants had failed to detect, causing him to lose his lower gastrointestinal tract and anus. Richards took more than two years to file suit and that, the district judge held, is that.

Richards concedes that his claim accrued in October 2008. He contends, however, that the time was tolled while he was physically unable to sue despite the exercise of reasonable diligence. Indiana recognizes this as a tolling condition; indeed, the state’s constitution requires the judiciary to toll time limits for incapacitated persons. .... The court remarked in Cameron that this rule prevents tortfeasors from escaping liability by injuring victims so badly that they cannot sue in time. * * *

This suit, however, could not properly be dismissed under either Rule 12(b)(6) or Rule 12(c). The claim is sound in theory ...; the complaint’s allegations make an eighth-amendment recovery plausible. Indiana allows tolling because of physical incapacity—and, far from pleading that he was capable of suing throughout the two years after his first surgery, Richards pleaded incapacity, again plausibly. The district judge had this to say: “Richards’ explanations for the delay are unpersuasive.” That’s it. No other analysis. The court did not identify a legal obstacle to the suit; the judge just deemed the allegations “unpersuasive.” But a judge cannot reject a complaint’s plausible allegations by calling them “unpersuasive.” Only a trier of fact can do that, after a trial. For their part, defendants seem to be unaware that state law supplies the principles of tolling in litigation under §1983; neither of the two briefs filed by appellees mentions Indiana’s tolling rules.

We appreciate the judicial desire to resolve cases as swiftly as possible. * * * But neither Twombly nor Iqbal has changed the rule that judges must not make findings of fact at the pleading stage (or for that matter the summary-judgment stage). A complaint that invokes a recognized legal theory (as this one does) and contains plausible allegations on the material issues (as this one does) cannot be dismissed under Rule 12. ...

Judges should respect the norm that complaints need not anticipate or meet potential affirmative defenses. If the facts are uncontested (or the defendants accept plaintiffs’ allegations for the sake of argument), it may be possible to decide under Rule 12(c); if the parties do not agree, but one side cannot substantiate its position with admissible evidence, the court may grant summary judgment under Rule 56. But this case has not reached the stage where Richards’s allegations of physical incapacity are put to the test. Once Richards has had an opportunity to produce evidence material to the tolling question, its sufficiency under Indiana law can be tested by a motion for summary judgment. Before proceeding further, however, the district court should consider carefully whether to assist Richards in finding a lawyer who can muster the facts and, if necessary, secure medical experts. ...

The judgment is reversed, and the case is remanded for proceedings consistent with this opinion.

Posted by Marcia Oddi on Thursday, August 09, 2012
Posted to Ind. (7th Cir.) Decisions

Vacancy #2 on Supreme Court 2012 - Stories on yesterday's finalist selection

Eric Bradner reports today in the Evansville Courier & Press:

INDIANAPOLIS — Gov. Mitch Daniels again will have the opportunity to select a woman to fill a vacancy on the Indiana Supreme Court.

In the next two months, he'll choose one of the three finalists for the job who were selected Wednesday by the Indiana Judicial Nominating Commission after a last round of interviews.

The finalists are Loretta Rush, Steven Nation and Geoffrey Slaughter.

It'll be the third time Daniels, whose second term is approaching its end, gets to name a justice to Indiana's five-member, all-male high court.

As with his previous selections, Daniels will face pressure to appoint a woman. Of the 107 justices who have served on the court, only one — Myra Selby, who was appointed in 1995 and resigned in 1999 — has been female.

Rush, 54, is a juvenile court judge in Tippecanoe County — the home of Purdue University, where Daniels will become president once his term ends. She was the only female selected to be one of the three finalists, even though 16 of the 22 applicants for the job were female.

"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," Rush said in an interview with the nominating panel, according to Lafayette-based WFLI. "I think it makes us more accountable as a judiciary and increases public trust in our system."

Joel Schumm, a professor at Indiana University's McKinney School of Law in Indianapolis, who was covering Wednesday's interviews before the vote for the Indiana Law Blog, wrote that Rush "gave the best interview of the day."

Niki Kelly reports in the Fort Wayne Journal Gazette:
INDIANAPOLIS – Allen Superior Court Judge Fran Gull didn’t make the final cut Wednesday for the vacancy on the Indiana Supreme Court.

The seven-member Judicial Nominating Commission deliberated for almost four hours before approving three finalists – Hamilton Superior Court Judge Steven Nation, Indianapolis civil attorney Geoffrey Slaughter and Tippecanoe Juvenile Court Judge Loretta Rush. * * *

One commission member, Terre Haute attorney James McDonald, voted against the choice of finalists but wouldn’t comment further on why.

Going into the process, much attention has been made about the need for a female justice because Indiana is one of only a few states not to have a woman on the state’s highest court.

In the end, two of the six male applicants made it to the final list, compared with one of the 16 female applicants. * * *

[Judge] Gull said the elephant in the room is the debate about gender diversity on the court, but she said it’s also important to have diversity in backgrounds as well. * * *

The commission appeared to like her experience with reformative justice, an alternative to simply sending people to prison. She talked of Allen County’s drug court as an example.

Gull acknowledged that when she was a prosecutor, she often felt that offenders should be locked up and the key thrown away. But years on the bench have changed that view.

“Now I see the remarkable transformations we can make,” she said, adding that she wished there was state funding for other counties to have other similar problem-solving courts.

The Lafayette Journal Courier does not have appear to have a story, but WLFI18 has a very brief story headed:"Tippecanoe County judge named finalist for Indiana Supreme Court: Judge Loretta Rush named one of three finalists."

Posted by Marcia Oddi on Thursday, August 09, 2012
Posted to Vacancy #2 on Supreme Court 2012

Stage Collapse - More on: Fair Victims Settlement Shields State From Purported Indemnification of Mid-America Sound Corp. signed by fair's executive director

Updating this ILB entry from yesterday, quoting an AP report that included:

Invoices signed by fair executive director Cindy Hoye in the months after the collapse include an "indemnification" clause that requires the fair to assume all responsibility for any judgments, fines, injuries and loss of life resulting from use of the equipment and to hold the companies harmless.

Fair spokeswoman Stephanie McFarland referred questions about the invoices to the attorney general's office Tuesday.

Attorneys for Mid-America claim the invoices constitute binding contracts, a contention the state disputes. But after the state had already paid $5 million, and with lawmakers prepare to provide $6 million more, Zoeller decided it was better not to test that argument in court.

Ogden on Politics writes about this this morning, in a valuable long entry headed: "Appeals Court Previously Found Invoice Indemnfication to be Unconscionable and Unenforceable; So Why Did AG Zoeller Cave on Issue Against Best Interests of State Fair Stage Collapse Victims?" He also quotes from Advance Indiana, which had this post on August 7th headed "Zoeller Withheld Key Information In State Fair Stage Collapse Settlement ." Both entries quote the AP story, reported by Tom LoBianco.

ILB: I've been on both sides of State of Indiana contracting, having in the past both reviewed contracts while counsel to the state budget agency years back, and later been a contractor to several state agencies. State contracts ALWAYS include an indemnification clause as part of the standard boilerplate.

For example, here is the Attorney General's 2011 Professional Services Contract Manual at page 42:

22. Indemnification

Also called a Hold-Harmless Clause. NEVER include a clause that provides that the State will hold harmless or indemnify the other party.

The Contractor agrees to indemnify, defend, and hold harmless the State, its agents, officials, and employees from all claims and suits including court costs, attorney‘s fees, and other expenses caused by any act or omission of the Contractor and/or its subcontractors, if any, in the performance of this Contract. The State shall not provide such indemnification to the Contractor.

State contracts cannot be entered into simply on the signature of the agency head. They must go through an approval process to be valid. From p. 6 of the Manual:
Indiana Code section 4-13-2-14.1(a) requires that, after signature by the vendor and the agency, contracts must be approved by (1) the Indiana Department of Administration, (2) the State Budget Agency, and (3) the Office of the Attorney General. Unless your agency has specific delegated authority from IDOA or Budget, or is using a specific contract that has been given written form approval by the OAG within the last 12 months, it will have to be circulated through these 3 agencies for approval.
Signatures of all those agencies is required on the contract, in addition to the vendor and the agency.

As described, the "invoice" in this incident was actually a purported contract amendment. As the Manual states: "An Amendment changes or adds to the terms or conditions of an existing contract." Contract amendments must go through the same approval and signature process (see p. 69 of Manual) to be effective.

Posted by Marcia Oddi on Thursday, August 09, 2012
Posted to Stage Collapse

Ind. Courts - More on: Problems relating to Office of the Clerk of the Appellate Courts?

Updating yesterday's ILB entry, I've received notes from two readers:

1. Annual Attorney Registration. I checked just now and the Clerk of the Court's Portal, where attorneys must register, is still down and giving this message. A reader last evening, who happens to be my sister, wrote:

I looked at the ILB and saw the answer to yesterday's question that I had when I was trying to open the portal to update XXX's information and pay his dues. Okay; I thought I was doing something wrong. Good to know.
4. Notifications to Counsel of Record. Another reader wrote early this morning with an issue that falls under this new category:
If I didn't follow ILB every day, I would still not have been notified by either email or regular mail about the Supreme Court's July XX decision in XXXX in which I represent XXX. I hope you will continue to shed light on this. This is not the first time this year I haven't received any notice when a decision was made by the Supreme Court in a case in which I was counsel of record. Something is very wrong in the Clerk's office.

Posted by Marcia Oddi on Thursday, August 09, 2012
Posted to Indiana Courts

Wednesday, August 08, 2012

Ind. Decisions - More on: Supreme Court denies AG's petition to transfer in widely-watched Christine Bunch arson case

Updating this ILB entry from earlier today, here are some quotes from a press release from Schiff Hardin LLP:

INDIANAPOLIS – A team led by Schiff Hardin LLP's Managing Partner, Ronald S. Safer, along with Jane E. Raley and Karen L. Daniel of Northwestern's Center on Wrongful Convictions, assisted by Jon Laramore of Faegre Baker Daniels, LLP, obtained post-conviction relief in the form of a new trial for pro bono client Kristine Bunch of Decatur County, Ind., who has served 16 years in prison for a glaringly wrongful murder conviction. The Indiana Supreme Court today denied the State's Petition to Transfer, leaving intact the Indiana Court of Appeals’ earlier ruling that overturned the lower court’s denial of post-conviction relief, allowing Ms. Bunch a new trial and a vacated conviction.

Mr. Safer said, “We are delighted that the highest Court in Indiana recognized the injustice of pursuing this case. We hope that the Prosecuting Attorney for Decatur County will not waste the people's scarce resources pursuing this wrongful prosecution. If he does, we will leave no doubt that Kristine is innocent."

The Indiana Court of Appeals reversed Ms. Bunch's conviction stating, “We conclude the fire victim toxicology evidence does constitute newly-discovered evidence and the post-conviction court clearly erred in denying Bunch relief on this claim. We also conclude the State's failure to turn over a report from the ATF testing of floor samples violates Brady and the post-conviction court also clearly erred in denying Bunch relief on this claim. Because either of these two errors warrants a new trial, we need not address the remaining issues. We reverse and remand for a new trial." The Indiana Supreme Court on August 8, 2012, declined to disturb this opinion.

“We will seek Kristine's immediate release. The end of this long nightmare for her is in sight,” added Mr. Safer.

Ms. Bunch's legal team also includes Kelly M. Warner of Schiff Hardin LLP (Chicago), Jon Laramore of Faegre Baker Daniels, LLP (Indianapolis), Hilary Bowe Ricks (Indianapolis), and Jane E. Raley and Karen L. Daniel of the Center on Wrongful Convictions/Bluhm Legal Clinic/Northwestern University School of Law (Chicago).

A timeline of events leading to today's decision is as follows:

  • 1996 – A Decatur County jury convicted Ms. Bunch of murdering her three-year-old son who died when their mobile home burned.

  • 2006 – Ms. Bunch filed a petition seeking the post-conviction relief of a new trial, presenting evidence that showed – without question and on several different grounds – that her conviction was in error.

  • 2010 – The trial court denied Ms. Bunch's request for a new trial, ignoring overwhelming evidence proving her innocence.

  • 2011 – Ms. Bunch appealed the trial court's denial of post-conviction relief.

  • March 21, 2012 –The Indiana Court of Appeals overturned the lower court's ruling, granting Ms. Bunch a new trial.

  • August 8, 2012 – The Indiana Supreme Court denied the state's petition to transfer the case.

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Ind. Sup.Ct. Decisions

Vacancy #2 on Supreme Court 2012 - Some reactions

Evanville Courier & Press:

Eric Bradner ‏@ericbradner
16 women and 6 men applied for the Indiana Supreme Court vacancy. Nominating panel sent 1 woman and 2 men to Gov. Daniels for final choice.

Fort Wayne Journal Gazette:

Niki Kelly ‏@nkellyatJG
Of original 22 applicants, 16 were women; six men. Of those six men, two made the final list.

Indiana Law Blog:

Hard to understand, there were many highly qualified women ...

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - The Three Finalists are ...

Nation, Slaughter, and Rush.

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - The Three Finalists? [Updated]

Still waiting...

At loggerhead over someone? The ILB could guess it is similar to the split last time reportedly over now-Justice Massa. Trial attorneys were on one side ... CJ was tie-breaker.

[Update] Okay, they will announce at 7:30, they say.

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Courts - Problems relating to Office of the Clerk of the Appellate Courts?

A number of issues have been brought to the attention of the ILB recently. Here they are, in no particular order.

1. Annual Attorney Registration.

On Aug. 2nd, Indiana attorneys received a notice re their mandatory annual attorney registration. The long notice said one can now only register online, noting:

Last year, however, we replaced the paper-based method with a new web-based method for you to fulfill your annual attorney registration and certification obligations, called the “Clerk of Courts Portal.”

We have improved the website since last year to make it even easier and more user-friendly.

The ILB has received notes from people unable to register. Today I tried and got a message dated 8/6 stating:
We're sorry...

The Indiana Appellate Clerk's Portal is currently experiencing technical difficulties and is temporarily unavailable.

Attorneys who have not yet completed their registration process will be notified via email when the technical difficulties have been fixed. We apologize for any inconvenience.

2. More Lost Appeals?

In 2008 the COA noted in an opinion:

[W]e have recently become aware of some difficulties in receiving the prompt transmission of fully-briefed appeals to our court. Indeed, the case herein was fully briefed on June 21, 2007, but was not transferred to our court until February 26, 2008—a delay of over eight months. We remind counsel that a link to the Clerk’s online docket is available at http://www.in.gov/judiciary/cofc/ and counsel may check the docket to confirm that the case has, in fact, been transmitted to this court after being fully briefed.
A similar notation appeared in a number of opinions. In this entry, following another such opinion on April 30, 2008, the ILB notes in part:
NOTE that this case was lost in the Clerk's office until last month. And although the Court urges attorneys to check the online docket to make sure their briefed cases have been submitted to the judges, the Clerk has inexplicably been removing entire categories of appeals, such as juvenile appeals, completely from the online docket.

For example, here is an opinion issued last Friday, April 25th * * * The ILB just looked up that case in the online Clerk's docket. It does not exist in the docket.

In other words, anyone looking to see if the case had been appealed would not find it in the docket; the first notice of the appeal would have been the issuance of the COA's opinion. And no attorney in the case would have been able to check the online docket, as the COA appeals has been suggesting, because there is no docket at all for the case.

This situation was ultimately resolved, as this October 8, 2008 ILB entry recounts. However, I've now received some inquiries about a case granted transfer late last month:
St. Joseph Hospital v. Richard Cain - is a Nov. 14, 2010 COA opinion holding: "Because the trial court had subject matter jurisdiction over St. Joseph's unverified petition for judicial review, it improperly granted the HRC's motion to dismiss and declined to rule on the other outstanding motions, namely St. Joseph's motion to amend. The alleged lack of a quorum, however, was not properly raised in St. Joseph's motion to dismiss. We reverse and remand for consideration of St. Joseph's motion to amend."
A Nov. 14, 2010 COA opinion, granted transfer July 27, 2012? A check of the docket shows:
3/17/11 ***********TRANSMITTED ON TRANSFER 03/17/11***********
ENTERED ON 03/17/11 AB
7/26/12 CASE TRANSFERRED TO THE SUPREME COURT

3. Clerk's Office's policy of requiring that all transcripts be sent out for digitizing.

I'm told that in some cases this leads to "Catch 22" problems, but it is much too complex to detail here. If you've run into this, you will know ...

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Indiana Courts

Vacancy #2 on Supreme Court 2012 - Report on interviews 9 and 10

This is Indiana University-Robert H. McKinney School of Law professor Joel Schumm's report on semi-finalist interviews nine and ten.

These were the final interviews. The JNC will begin deliberations in executive session at 4 PM and sometime later this afternoon they will announce the three names they will send to the Governor.

Hon. Steven R. Nation, Indianapolis -- (photo) (application)

In response to the opening question about factors to consider, Judge Nation identified several. He began with experience, both as an advocate and judge and in handling a variety of cases including complex cases. He also cited the ability to work well with others, ability to deal with pressure, consistency, and the need to always think about new ways to address problems. He ended with the importance of leadership and a commitment to public service.

Chief Justice Dickson asked about the “elephant on the table”: Judge Nation’s age of 62. He noted he has 13 years before mandatory retirement and was committed to serving until then. His mother is 101; his father died at 95. In response to a question about what he does to stay young, Judge Nation said he recently went on a diet after his wife did. He enjoys walking every evening as well.

In response to a question about the importance of following the law or achieving the right result, Judge Nation said both are important. There must be a commitment that the results follow the law. He includes policies and reasons in his orders.

Judge Nation views the Constitution as a contract between the government and the people. In interpreting it, judges should look at the language of the Constitution and also consider the intent at the time it was ratified.

In response to the question about federal versus Indiana summary judgment standard, Judge Nation focused on differences in the ability to appeal. In response to a follow up question, he emphasized that judges should be bound by the pleadings.

Like every other applicant who was asked, Judge Nation responded that civil cases present the greatest intellectual challenge. Criminal cases often present the same or similar issues. The civil side really intrigues him.

In response to a case that had a lasting impression, Judge Nation mentioned a rape case involving a defendant who had committed other rapes in which the jury returned a guilty verdict.

Judge Nation cited communication as an area for improvement. Because the public does not understand everything that courts do and very few cases make the paper, he stressed community involvement, which is a daily opportunity to communicate about the important work of courts.

Hon. Loretta H. Rush, Indianapolis -- (photo) (application)

In response to the opening question about factors most important in selecting the next supreme court justice, Judge Rush mentioned several: humility, strength of character, independence, impartiality, integrity, broad and deep basis of life and professional experience, and collegiality and consensus building. Mr. Winningham followed up about humility. Judge Rush explained this as listening to others and treating them with respect. Humility leads to judicial restraint.

In response to questions about her legal experience, Judge Rush discussed her experience in private practice for fifteen years before taking the bench. She tried cases in federal and state court, representing both individuals and corporations, plaintiffs and defendants, in cases with a wide variety of issues. She had little juvenile experience before taking the bench but dove in and learned it, developing new technology and programs. She acknowledged there would be a learning curve if she joined the Supreme Court, and she would approach it with the same commitment.

In response to a question about whether she would move or commute, Judge Rush said she was unsure. She lives on the south side of Lafayette and would initially commute, which takes less than an hour.

She would follow the law instead of focusing on the result. As a judge, she took an oath to uphold the law. She agreed with Ms. Northenor that sometimes supreme court opinions can encourage the Legislature to consider changing the law.

In interpreting constitutional issues, Judge Rush would take a more originalist approach. Viewing the constitution as a living document is less predictable. She is currently reading Justice Scalia and Bryan Garner’s new book, Reading Law: The Interpretation of Legal Texts.

In response to a question about the role of empathy, Judge Rush responded that a judge should not use empathy in making decisions but should use it in their courtroom demeanor. It is important to listen to everyone’s side and not cut them off.

In response to a question about something she would do differently, Judge Rush cited a case that reversed on appeal, which she wished had been handled differently because of the impact on the child.

In response to a question about ambiguous statutes, Judge Rush said she would look to the context of the broader statute and then consider whether there was clear legislative intent.

In response to the question about an area for improvement, Judge Rush stressed the need to find continued and stable funding for trial courts, which is critical to access of justice. In the criminal arena, a defendant in one county may be allowed to avoid a conviction and secure treatment for a drug offense while in another county without a drug court the defendant faces a minimum of 20 years in prison.

I am not alone in the view that Judge Rush gave the best interview of the day.

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - Supreme Court denies AG's petition to transfer in widely-watched Christine Bunch arson case

The vote was 5-0. Here is the March 21, 2012 COA opinion (3rd case), where Chief Judge Robb concluded:

The post-conviction court clearly erred in determining Bunch was not entitled to a new trial on the basis of the fire victim toxicology analysis evidence, as the evidence meets each of the nine requirements to be newly-discovered evidence. The post-conviction court also clearly erred in determining Bunch was not entitled to a new trial on the basis of a Brady violation by the State. Because our resolution of these issues is dispositive, we do not address Bunch's remaining newly-discovered evidence claim or her claim of ineffective assistance of counsel. We reverse the post-conviction court's denial of Bunch's petition for post-conviction relief, and remand for a new trial.
And here is a June 12th ILB entry headed: More on "Indiana appeals court reverses murder, arson convictions: Advances in fire science cited in case of woman whose 3-year-old son died in 1995 blaze."

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Ind. Sup.Ct. Decisions

Vacancy #2 on Supreme Court 2012 - Photos of the interviewees

Photos of the final four interviewees contending to fill the Indiana Supreme Court vacancy have now been added. The photos were taken by Court staff.

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Vacancy #2 on Supreme Court 2012

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

For publication opinions today (0):

NFP civil opinions today (2):

Dorothy Miller, et al. v. City of Mishawaka, et al. (NFP)

Term. of Parent-Child Rel. of K.T.K., K.C., & K.R.K. (Minor Children) and T.K. (Father) v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (6):

Justin C. Woodhouse v. State of Indiana (NFP)

Ty Evans v. State of Indiana (NFP)

John Harrell v. State of Indiana (NFP)

Derek Patton v. State of Indiana (NFP)

Jerry Moss v. State of Indiana (NFP)

Jaron Yancey v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Ind. App.Ct. Decisions

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

In Michael J. Alexander v. Mark McKinney (SD Ind., Young), a 10-page opinion, Judge Kanne writes:

Michael Alexander alleges that a local prosecutor, Mark McKinney, conspired with a number of agents from the Federal Bureau of Investigation to manufacture false evidence and bring trumpedup charges of conspiracy to commit bribery against him. A jury acquitted Alexander of the charges, and he then brought suit against McKinney for violating his due process rights. The district court dismissed the claim, finding McKinney entitled to qualified immunity because the complaint did not identify a deprivation of a cognizable constitutional right. Because Alexander’s complaint is merely an attempt to recast an untimely false arrest claim into a due process claim, an approach we have plainly rejected, we affirm.

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Ind. (7th Cir.) Decisions

Vacancy #2 on Supreme Court 2012 - Report on interviews 7 and 8

This is Indiana University-Robert H. McKinney School of Law professor Joel Schumm's report on semi-finalist interviews seven and eight.

Hon. Mary G. Willis, Indianapolis -- (photo) (application)

Judge Willis identified the most important factors “at this time in our history” for selecting a new supreme court justice as: (1) proven civility and collegiality, including work on committees and election by one’s peers; and (2) breadth of experience with cases of different types.

Chief Justice Dickson recounted Judge Willis’ varied experience and asked which was most important to the work as a justice. She said they are interrelated and all the experiences would be beneficial.

In interpreting the federal or state constitution, Judge Willis would focus on the documents as they were written rather than as living, organic documents.

Judge Willis believes the most intellectually challenging cases arise in the civil arena, while criminal cases are often more emotionally challenging. Judge Willis prefers the Indiana summary judgment to federal standard because it allows litigants more access to jury trials.

In response to Mr. Winningham’s questions about indicators of her intellect, Judge Willis pointed to her continuing judicial education, the record of which she attached to her application.

In response to a question about diversity, Judge Willis focused on a broader notion of practice experience diversity, which gives rise to different ways of looking at issues.

In response to Ms. Northenor’s question about the importance of technology, Judge Willis cited its vital importance to the modern court system. She referenced a recent grant that allowed for scanning all records, judgment, and orders in Henry County and recently adopted ABA resolutions that emphasize the importance of technology in a variety of settings. Henry County had also used JTAC for compiling jury lists.

In response to a question about her most complex case, Judge Willis identified insurance coverage cases, including a recent one with environmental issues. In response to Mr. McDonald’s question about the developing the common law, Judge Willis stressed the importance of the supreme court developing clear precedent that other courts can easily follow.

Judge Willis identified as a shaping influence her father who was a captain in the US Navy for thirty years.

She identified technology as are area where the Supreme Court could improve. In response to a question from the Chief Justice about e-filing for pro se litigants, Judge Willis recounted that her court previously set out pro se forms; however, because of a paper shortage, it began directing litigants to a website. No one complained or asked for the forms. Individuals without computer access could go to the public library two blocks from the courthouse.

Mr. John P. Young, Indianapolis -- (photo) (application)

In response to the opening question about factors to consider in selecting a supreme court justice, Mr. Young identified diversity of practice experience, worldly experience, leadership qualities, and strong family ties among others.

In response to a question from the Chief Justice about criminal law experience, Mr. Young said he tried more than 100 cases as an intern in the prosecutor’s office one summer. In the three years after law school he worked as a contract public defender in cases with conflicts because of multiple defendants. In response to a later follow up question about keeping abreast of developments in the criminal law realm, Mr. Young identified Res Gestae as one publication and reads the advance sheets. He also reads the Indiana Law Blog, which provides a wealth of information about criminal cases.

In response to a question from the Chief Justice about interpreting constitutional provisions, Mr. Young advocated for a strict interpretation, trying to determine what the ratifiers meant by the words they used.

Mr. Young emphasized the important Indiana constitutional right to a jury trial, which can sometimes be infringed upon by granting summary judgment. When asked about his preference between the federal and state summary judgment standard, he prefers the state approach, which he believes gives more predictability to the parties.

When asked about interpreting ambiguous statutes, Mr. Young emphasized trying to determine legislative intent by looking at the language and the statutory scheme.

Mr. Young identified funding as the area in which the Supreme Court could improve. He said this did not mean breaking the budget, as funds could be carved out of filing fees

Mr. Young’s answers were among the longer ones of the day and less focused than most others.

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - Photos of the first six interviewees

Here are photos of the first six interviewees contending to fill the Indiana Supreme Court vacancy. The photos were taken by Court staff.

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - Report on interviews 4, 5, and 6

This is Indiana University-Robert H. McKinney School of Law professor Joel Schumm's report on semi-finalist interviews four, five and six.

Note: You may now find the report on Ms. Erin Reilly Lewis' interview here.

Mr. Geoffrey G. Slaughter, Indianapolis -- (photo) (application)

In response to the opening question about important factors to consider in filling the vacancy, Mr. Slaughter cited (1) legal ability (smarts, ability to distill information and explain it in a way that is easy to understand for lawyers and laymembers), (2) collegiality, (3) civility (in treatment of advocates and litigants), and (4) appreciation of the Court’s role (the Court interprets the law as written instead of superimposing the judge’s own views).

In response to a question from Chief Justice Dickson, Mr. Slaughter said the text of the statute should trump notions of legislative intent. Text provides notice to citizens and allows them to shape their behavior.

In response to a question from Mr. Winningham about diversity, Mr. Slaughter emphasized the importance of different perspectives based on legal and personal experience.

In response to questions from Chief Justice Dickson about his practice experience, Mr. Slaughter noted he did primarily litigation as an associate after law school, began doing antitrust work at the AG’s office and later became involved in high profile appellate matters, and now in private practice at Taft does litigation at the trial and appellate levels in both federal and state court, representing both plaintiffs and defendants.

In response to questions about interpreting statutes from Ms. Northenor, Mr. Slaughter emphasized the role of the courts in interpreting the statute and explaining the reason for its decision without the need to prod it to change the law. Ms. Northenor thinks the legislature needs prodding sometimes.

In response to a question from Mr. Streeter about an area of law that is unclear, Mr. Slaughter discussed representing Rose Acre Farms over 18 years in a Fifth Amendment Takings Clause challenge. Mr. Slaughter said lawyers could benefit from more clarity in that area of the law.

In response to a question from Chief Justice Dickson about interpreting the state constitution, Mr. Slaughter observed the framers had the wisdom to allow the Constitution to be amended. But the principles enshrined in the Constitution can be applied to modern issues.

In response to questions from Mr. McDonald about his practice experience, Mr. Slaughter noted he has done a handful of depositions in the past six months and his in-court experience had focused on injunctions and motions rather than trials.

In response to a question from Ms. Kitchell about individuals who had an influence on him, Mr. Slaughter mentioned his parents, Judge Sharp for whom he clerked, and his wife/soulmate.

In response to a question about whether he preferred the federal or state summary judgment standard, Mr. Slaughter asked, to laughter, if he was representing the plaintiff or defendant. He noted the Celotex trilogy from 1986 was friendlier to defendants while Indiana’s Jarboe standard is more favorable to plaintiffs. If he were writing on a clean slate he might not adopt Jarboe but it has been settled law for nearly two decades.

In response to questions about technology, Mr. Slaughter agreed that JTAC and Odyssey should be expanded to cover the entire state.

Hon. Frances M. Gull, Allen Superior Court -- (photo) (application)

In response to the opening question about factors to consider, Judge Gull mentioned professional experience, ability to make hard decisions, communicating well and working well with others, and prior judicial experience. She mentioned diversity as “the big elephant in the room,” but described it in broader terms than gender diversity.

In response to concern from Chief Justice Dickson about her lack of civil experience, Judge Gull emphasized the important administrative responsibilities of the Supreme Court and her administrative experience as a prosecutor and judge.

In response to a question from Chief Justice Dickson about living in Indianapolis or commuting, Judge Gull said she would get an apartment of condo in Indianapolis and return to Fort Wayne on the weekends.

In response to Mr. Streeter’s question about interpreting ambiguous statutes, Judge Gull said it would be useful to look to how other states or federal courts had interpreted similar statutes. In response to a question from Chief Justice Dickson about interpreting the state constitution, Justice Gull would “look to what is the prevailing norm” if the issue was not one the framers could have considered and would also consider decisions from other states.

In response to a question from Chief Justice Dickson about the federal versus Indiana summary judgment standard, Judge Gull mentioned summary judgment sometimes arose in forfeiture cases she had handled. In post-conviction proceedings, some cases may also be resolved on the pleadings. But she had not had the opportunity to consider the federal versus Indiana standard.

In response to a question from Mr. Winningham about a case that she felt good about, Judge Gull discussed the Corcoran death penalty case in which she felt good about how the jury was selected and the way the trial was handled.

In response to a question from Chief Justice Dickson about how Indiana can best fulfill the constitutional guarantee of providing rehabilitation, Judge Gull discussed problem-solving courts, such as drug courts. She noted the strong support and local funding in Allen County and need for state funding to expand such programs. As a prosecutor she had a “lock them up” mentality, which changed when she became a judge and saw the success of such programs. Incarcerating low-level offenders can make them high-level offenders when they learn from others in prison.

Ms. Andrielle M. Metzel, Indianapolis -- (photo) (application)

In response to the opening question about factors to consider in selecting a supreme court justice, Ms. Metzel mentioned competency, character (citing her work on the Disciplinary Commission), commitment (expressing the longstanding interest to be a judge and plan to remain for her career), and collegiality. Ms. Metzel said she celebrated her birthday last week with a number of friends, one of whom reminded her that more than 20 years ago when the friend wanted to take pictures and a video of her on the bench she declined, saying she would like to be a judge some day.

In response to a question from Chief Justice Dickson about enhancing civility among lawyers, Ms. Metzel emphasized the importance of the court’s opinions, which are not scathing of other judges’ views as in some courts, and the importance of judges as role models.

In response to a question from Ms. Kitchell about her current practice, Ms. Metzel explained that she is a litigator in a real estate firm. She deals with such things as zoning and breach of contract issues. She has done both plaintiff and defense work in employment law.

In response to Chief Justice Dickson’s question about the federal and Indiana summary judgment standard, Ms. Metzel expressed preference for the state court standard from the perspective of a litigant. From the perspective of an Indiana Supreme Court justice, she expressed a preference for the federal standard because the federal courts generally have applied their standard more consistency than state courts.

In response to Chief Justice Dickson’s question about interpreting the Indiana Constitution, Ms. Metzel described her approach as more conservative, emphasizing the importance of looking at the document as written.

In response to a question from Chief Justice Dickson, Ms. Metzel responded that civil cases are more intellectually demanding than criminal cases. Criminal law benefits from clearer statutes; civil cases are more amorphous.

Citing Ms. Metzel’s work on the Disciplinary Commission, Chief Justice Dickson asked about the effect of a felony conviction on the ability to practice law. Ms. Metzel said in individual circumstances lawyers with a felony conviction should be able to go through the process to be reinstated. Aspiring lawyers with a felony conviction should not be precluded from admission to the bar but should have to account for their prior conduct.

As to areas for improvement, Ms. Metzel explained she had reviewed prior State of Judiciary speeches. When she graduated in 1991 from college, the speech discussed a recession and similar economic challenges continue to exist today. The 1991 speech lauded the use of fax machines, and Indiana now has Odyssey and other technological advances.

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Vacancy #2 on Supreme Court 2012

Stage Collapse - Fair Victims Settlement Shields State From Purported Indemnification of Mid-America Sound Corp. signed by fair's executive director

A significant AP story reported by Tom LoBianco was widely published yesterday. The full version of the long story may be found here at ABC News.

A shortened version of the AP story is here at the Fort Wayne Journal Gazette.

From the non-truncated version of the story published by ABC:

Documents obtained this week by The Associated Press show Mid-America Sound Corp., which owned the stage, was ready to sue the state to get back any money victims won in lawsuits against the bankrupt the companies.

Invoices signed by fair executive director Cindy Hoye in the months after the collapse include an "indemnification" clause that requires the fair to assume all responsibility for any judgments, fines, injuries and loss of life resulting from use of the equipment and to hold the companies harmless.

Fair spokeswoman Stephanie McFarland referred questions about the invoices to the attorney general's office Tuesday.

Attorneys for Mid-America claim the invoices constitute binding contracts, a contention the state disputes. But after the state had already paid $5 million, and with lawmakers prepare to provide $6 million more, Zoeller decided it was better not to test that argument in court.

Zoeller's point man on the fair settlement, Larry Hopkins, told The Associated Press the plan tying the additional state money to the settlement offer from the two companies was the best way to avoid years of wrangling in court while protecting the state from a potentially massive judgment.

"The idea would be that if these claimants sued Mid-America and they succeeded in winning the lawsuit and there was a judgment, that potentially the state then is on the hook for that, even though we would fight it as vigorously as we could," Hopkins said. "Part of our mission with that new legislation was to try and deal with that indemnification claim and extinguish it."

The potential threat to the state was huge. Indiana law caps the state's liability at $5 million per incident for claims made directly by victims, but state lawyers said the "indemnification" argument Mid-America used could have fallen outside that cap.

ILB: Hopefully there is more coming on this.

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Stage Collapse

Ind. Courts - Steuben County revises cell phone ban for Courthouse

From WLKI 100.3, this brief item dated August 7th:

(ANGOLA) - Steuben County Commissioners on Monday adopted a revised ordinance covering who can bring a cell phone into the County Courthouse. Cell phones are still banned for the general public but they can be brought into the building by attorneys, judges, magistrates or by persons with written permission from a judge or magistrate. Cell phones can also be used by all courthouse employees, county commissioners, county council members, court connected employees, law enforcement personel and by anyone who a digital card key by county commissioners. The revised ordinance came at the request of Superior Court Judge William Fee. Cell phones were banned several years ago when one was used to take pictures during a contentious child custody hearing.

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Indiana Courts

Vacancy #2 on Supreme Court 2012 - Report on the first 3 interviews

This is Indiana University-Robert H. McKinney School of Law professor Joel Schumm's report on the first three semi-finalist interviews

The interview did not begin until 8:35. A couple of Commission members were late in settling in.

Hon. Marianne L. Vorhees, Delaware Circuit Court 1 -- (photo) (application)

In response to the opening question about the factors that should be considered in replacing Justice Sullivan, Judge Vorhees discussed the importance of working well with others. She has worked with eight different judges over the past ten years. Open-minded, willing to work with others and talk through issues. A justice should not have an agenda and be willing to admit they are wrong—while also independent and stand their ground when appropriate. A justice must be able to communicate effectively in writing. Finally, she cited leadership. The Chief Justice shouldn’t have to do all the heavy lifting; other justices should pitch in.

In response to a question from Mr. Winningham about indicators of her intellect (he noted Justice Sullivan and other justices who had recently reitred were “very bright”), Judge Vorhees cited her undergraduate Ball State grades, major, two minors, and participation in the honors program. She also mentioned her performance at Notre Dame law school and the year she spent as a law clerk for the Sixth Circuit. She also did a lot of brief writing in private practice before taking the bench.

Mr. McDonald took the issue from this post head on, noting Judge Vorhees had been “elected in the Democratic party,” there has never been a Governor appoint outside his party. Judge Vorhees responded she believes the people of Indiana don’t care whether a justice is a Democrat or Republican; they want the best person. If it was not meant to be, she is very happy with her job in Delaware County and will go back there and be the best trial judge she can.

In response to a question from Chief Justice Dickson about an Indiana Supreme Court opinion with which she strongly disagreed, Judge Vorhees cited Barnes, which “overreached.” The case involved a jury instruction issue and could have been resolved on narrow grounds.

In response to a question from Chief Justice Dickson about Indiana’s summary judgment standard, which differs from the federal standard, Judge Vorhees responded that cases should be decided on the merits as often as possible, and Indiana should stay with its standard. She does not believe there are many frivolous lawsuits, and they can be resolved by motions to dismiss or summary judgment under the current standard.

In response to a question from Ms. Kitchell about the role of empathy in the judiciary, Judge Vorhees said she feels empathy for people in her court but it does not affect the ultimate ruling. It does affect her demeanor. She has not seen “Judge Judy” but understands she yells at litigants; Judge Vorhees does not.

In response to a question from Ms. Northernor about which is more important--the law as its written or the result—Judge Vorhees said the law as its written. She cited the example of a B felony armed robbery of a young kid waived into adult court who wasn’t using a real gun and robbed a drug dealer but she was required to sentence to a minimum of six years in the Department of Correction.

In response to questions about interpreting the Constitution, Judge Vorhees said judges “can’t be so rigid” with the language of the constitution because of the different times in which it was drafted. Judges should consider what is happening in the country and such things as modern technology, agreeing with more with the view of the Constitution as a “living, breathing document.”

In response to a question from Mr. Winningham about diversity, Judge Vorhees cited a few different types: (1) broad range of experience over different types of legal areas, (2) diversity in practice experiences (private practice and bench) (3) geographic diversity, and (4) gender diversity. As to gender, she said each member of the Commission should consider how to weigh it. She has worked very hard since before college. She has never been given anything because she is a woman and is not asking for it.

In response to a question from Ms. Kitchell about her favorite Olympic sport (softball is no longer one), Judge Vorhees cited women’s beach volleyball, noting her daughter had played volleyball competitively.

Hon. Cale J. Bradford, Indiana Court of Appeals -- (photo) (application)

Judge Bradford cited four factors in selecting a supreme court justice: (1) broad and diverse legal background, (2) administrative experience and ability, (3) making fair and even-handed decisions, and (4) having exemplary judicial temperament and collegiality. He believes there is no better preparation for the Supreme Court than being a Court of Appeals judge. He has participated in 2,300 opinions and 90 oral arguments in the past five years.

In response to a question from Chief Justice Dickson, Judge Bradford responded that civil cases are more complex than criminal cases and go on and on with many nuances.

In response to a question from Mr. Winningham about whether his enthusiasm could it be seen as intimidating, seeking examples of “the warm and fuzzy Judge Bradford,” Judge Bradford cited his demeanor during oral argument and the interactions with lawyers he has mentored over the years.

In response to a question from Ms. Northernor about whether the law or the result matters most, Judge Bradford said the law, which judges are sworn to uphold. Focusing on results may feel good in one case but lead to problems in future cases.

In response to a question from Chief Justice Dickson about work schedule, Judge Bradford noted that he has three offices. He usually works at home until mid-morning, when he arrives he stays as long as necessary, then goes home and reads until 10:00 at night. The Chief Justice observed that the tradition of the Supreme Court is for justices to live in Indianapolis and be in the office every day where they can interact with each other. Judge Bradford responded he would adjust to do the job as best he can.

In response to a question from Mr. McDonald about allowing citation of not-for-publication opinions, Judge Bradford said he could only make a decision with the input of other justices, observing the reason for publishing only 20% of opinions was to alleviate the need for judges and lawyers to read so many opinions in the advance sheets.

In response to a question about diversity, Judge Bradford noted the quality of decisions instills confidence in the judiciary—not what the person making the decision looks like.

In interpreting the Constitution, judges should look at language of the Constitution and determine the intent of the drafters at the time.

In response to the question about an area where the Court could benefit from improvement, Judge Bradford cited the challenge of adequate resources. Indiana should not go the route to other states where courts are only open four days each week or jury trials are only available in criminal cases.

Ms. Erin Reilly Lewis, Indianapolis -- (photo) (application)

In responding to factors important for a supreme court justice, Ms. Lewis started with personality, noting the justice is part of a team of five. She also mentioned intelligence, empathy, openness to hearing thoughts of others, and energy.

Chief Justice Dickson asked her to address the “elephant at the table,” her “youth,” and whether it was a liability or asset. She responded to laughter that “those concerned about [her] youth can be assured [she] will soon outgrow it.” Her 13 years of experience has been varied. She has energy and curiosity. She could bring longevity, like Chief Justice Shepard who was appointed at 38.

In response to a question from Chief Justice Dickson about the federal or state summary judgment standard, Ms. Lewis said she preferred the federal standard, which provides more certainty in advising clients. Mr. McDonald followed up by noting the Indiana Constitution provides for open courts and Indiana’s rule more often lets litigants proceed to trial, which Ms. Lewis acknowledged she hadn’t considered.

A couple of Commission members expressed concern about Ms. Lewis’ lack of jury trial experience. Ms. Lewis said she would be cognizant of the standard of review in reviewing decisions and rely on other justices. She cited her experience in litigation outside of the jury realm.

In response to a question about significant influences in her life, Ms. Lewis discussed being hired at the U.S. Attorneys Office by Susan Brooks when Ms. Lewis had only four years of experience. Brooks took her under her wing as a mentor and still has lunch with her and keeps up with her.

In response to Ms. Northenor’s question, Ms. Lewis said following the law must be more important than the result. The result cannot be ignored, though. In response to a follow up question about situations when the law does not fit current times, Ms. Lewis explained that justices should not legislate from the bench but could note in an opinion that the legislature might want to consider a change.

In response to a question from Mr. Ulmer, Ms. Lewis said the Constitution is an “organic document” but must focus on the core principles from the time of its adoption and stay true to those. The text is most important but intent and other influences might be considered as a secondary matter.

In response to a question from Chief Justice Dickson about an Indiana Supreme Court with which she disagreed, Ms. Lewis discussed Brenda Moore v. State. She said Justice Rucker’s dissent resonated with her, acknowledging Chief Justice Dickson had written the majority opinion. She suggested the Supreme Court could have revisited the Miles case.

In response to concerns from Ms. Northenor about future earning potential as an Indiana Supreme Court justice versus private practice, Ms. Lewis noted she was making less than half of her previous salary when she went to the U.S. Attorney’s office to devote herself to public service. When she went to Baker & Daniels she did not want to be a partner but instead have time for family and joined the firm as “of counsel.”

In response to the question about an area for improvement, Ms. Lewis cited the need to stay abreast of technological advances.

In response to a question from Ms. Kitchell about favorite Olympic sport, Ms. Lewis cited gymnastics and swimming.

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Vacancy #2 on Supreme Court 2012

About this Blog - Thanks to ILB supporters; and how you too can become one!

While you are waiting to read about today's interviews of the Supreme Court, please think about becoming an ILB supporter. The ILB really needs additional supporters! Become an ILB supporter today and help assure the ILB's continuation for the benefit of both the legal community and the public.

I'm pleased to announce that the backbone of the ILB's support, the Indiana State Bar Association, along with Doxpop and the ISBA Litigation Section, have all committed to support the ILB for another year.

And here is the list of law firm/individual supporters and when their support began:

You can see the list of all the ILB's valued supporters here, on the Supporters Page.

You or your firm could join this list of valued ILB supporters! Here is a copy of the ILB Supporter Agreement that you can fill out and mail.

What if you'd prefer to send an anonymous individual donation (i.e. not be identified on the ILB) from time to time, rather than making an annual commitment? A handful of you already have done that, and I really appreciate the support. To do so, simply make your check out to Environmental Information Solutions (or Marcia Oddi) and mail it to 1319 N. Alabama St., Indianapolis 46202-2523. [Sorry, we are not 501(c)(3).] Include your email if you'd like an acknowledgment of receipt and a thanks. Thanks to those of you who have elected to send the ILB a donation in this way. No amount is too small, or of course, too large.

Finally, I want again to express my thanks to all of you who have become supporters of the ILB. Without your help, there would be no ILB!

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to About the Indiana Law Blog

Vacancy #2 on Supreme Court 2012 - The ten semifinalists for the Supeme Court seat will be interviewed today, beginning at 8:30

The ten semi-finalist interviews will begin shortly. Ind. University-Robert H. McKinney School of Law professor Joel Schumm again will be in the Statehouse interview room for the ILB, and will report his summaries and observations back to the ILB during the breaks. Watch for his first report at shortly after 10:00 a.m.

Here is the interview schedule:

8:30 a.m. – 9:00 a.m. – Hon. Marianne L. Vorhees, Delaware Circuit Court 1
9:00 a.m. – 9:30 a.m. – Hon. Cale J. Bradford, Indiana Court of Appeals
9:30 a.m. – 10:00 a.m. – Ms. Erin Reilly Lewis, Indianapolis

(Break)

10:15 a.m. – 10:45 a.m. – Mr. Geoffrey G. Slaughter, Indianapolis
10:45 a.m. – 11:15 a.m. – Hon. Frances M. Gull, Allen Superior Court
11:15 a.m. – 11:45 a.m. – Ms. Andrielle M. Metzel, Indianapolis

(Lunch and Executive Session for Judicial Qualifications business)

1:30 p.m. – 2:00 p.m. – Hon. Mary G. Willis, Henry Circuit Court 1
2:00 p.m. – 2:30 p.m. – Mr. John P. Young, Indianapolis

(Break)

2:45 p.m. – 3:15 p.m. – Hon. Steven R. Nation, Hamilton Superior Court 1
3:15 p.m. – 3:45 p.m. – Hon. Loretta H. Rush, Tippecanoe Superior Court 3

4:00 p.m. – Deliberations in Executive Session followed by public session and vote to name three nominees for vacancy

Here are photos of all the original 22 applicants, along with links to their applications.

Here are some earlier posts by Professor Schumm that may bear another read:

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Law - "At what age is it ok to leave a child in a car?"

WISHTV8's Adrienne Broaddus had this thought-provoking story and video last evening. Some quotes:

INDIANAPOLIS (WISH) - It happened again.

But this time, the car wasn't hot.

And the child was 10-years-old.

A boy was left in an unattended car at Lafayette Square mall Monday. His 68-year-old grandmother, Willa Crawley, was arrested and is facing neglect charges. IMPD Officer Michael Hewitt said the 10-year-old "was in good condition."

This incident has parents now asking if there is an age when it is okay to leave a child in the car. Indiana state law doesn't have an age requirement, so how does law enforcement determine when a parent is charged with neglect?

"With the younger child there is not an age by statute. It is left up to common sense on the parent's part," Hewitt said.

State law doesn't say when a parent or guardian can leave their child in a car. The same is true for leaving kids at home alone. In fact, the law says it's up to the parent's discretion.

Because the law is so vague Hewitt suggest playing it safe.

"If your child is not old enough to be driving that car, I wouldn't leave my kids in a car unattended for any amount of time," Hewitt said.
[ILB - but what warrants an arrest?]

Pamela McLaurin, a friend and neighbor of Crawley, defends her friend's decision.

"I know Willa too well to know it was not neglect," McLaurin said. She also believes that a parent knows whether or not their child is responsible enough to be alone.

Crawley’s grandson is in the care of child protective services. McLaurin hopes the charges against her neighbor are dismissed.

"She is the sweetest, kindest person," McLaurin said. "Her house is where all the neighborhood children wind up."

Here is the brief WIBC 93.1 FM report.

Posted by Marcia Oddi on Wednesday, August 08, 2012
Posted to Indiana Law

Tuesday, August 07, 2012

Environment - "Cleanup needed at site of old Carmel grain bin: Harmful chemicals found at site"

David Barras has this report this evening at WISHTV8. Some quotes:

CARMEL, Ind. (WISH) - A complicated cleanup is about to begin where a demolished grain bin used to sit along the Monon Trail in Carmel. The cleanup will be slow and monitored by the Indiana Department of Environmental Management.

A rubble pile that sits at the site of a grain bin demolished in April is potentially contaminated. Bruce Palin of the Indiana Department of Environmental Management, says cleaning it up requires special procedures.

"The first step is to (do) some testing and sampling and analyze it,” Palin said, “and determine what concentrations there are of the particular chemical there.”

It's a pink substance discovered in the debris that's the problem. It could contain two potentially harmful chemicals: methoxychlor and captan. Both are harmful if inhaled. Both are potential health risks.

"They're pesticides. The methoxychlor is something to my understanding was banned by EPA several years ago," said Palin.

Because the site wasn't properly tested before the demolition, the city was required to submit a plan to clean up the debris. IDEM has now approved the plan. Aside from testing to see the level of contamination, contractors also have to make sure contaminated debris doesn't leak from the site and that no one comes in contact with it.

"If it could have been discovered before the building was torn down it could have been removed safely and would have been a lot less material to deal with," said Palin.

The video of the demolition shows pink dust apparently wafting away (eastward) from the demolition site. You can see it in this video from July 12th, by WISHTV8.

Going back in time to April 13th, WRTV6 had this story by Stacia Matthews, with video, headed "Carmel Grain Bin To Be Demolished." Some quotes:

CARMEL, Ind. -- The future of a nearly 100-year-old grain bin is stirring controversy among Carmel residents. * * *

Some residents said they’re concerned that when the grain bin is torn down, it could threaten the air quality because of the bird droppings and asbestos inside the bin, RTV6's Stacia Matthews reported.

Kera Slowitsky owns a dog day care next to the bin and said the structure spooks her four-legged clients.

“It's causing some dogs to be petrified. They run scared, and that causes its own degree of problems,” she said.

Slowitsky also said she worries about the threat of hystoplasmosis, a lung disease carried in bird droppings.

"All we're asking for is that some environmental testing be done before they start digging all that up and getting it into the air,” she said.

Posted by Marcia Oddi on Tuesday, August 07, 2012
Posted to Environment

Ind. Courts - "Court Reporters See Their Numbers Dwindle"

A second story today from the WSJ Law Blog, this one by Chelsea Phipps. Some quotes:

“You need a well-designed, well-integrated system to make a good record with a digital recording device,” says Judge John Storck of the Dodge County Circuit Court in Juneau, Wisconsin, who has used digital recording devices in his courtroom for about 11 years.

The ideal system, he says, is a blended system that uses digital recording but allows for the use of court reporters when the proceedings are particularly complex.

Michael Tannen, the executive director, of the American Association of Electronic Reporters and Transcribers, says: “The new judges coming in are more attuned to the digital recording systems.”

In 2010, Judges Charles Cunningham of Jefferson Circuit Courts in Kentucky lost the audio record of an entire assault and unlawful imprisonment trial due to a digital recording malfunction, but he says “court reporters can make mistakes too.”

Added Justice Michael McDonald, who was instrumental in pioneering the transition to digital recording in Kentucky over 30 years ago: “The court reporter’s transcript is the rankest of hearsay; you’re just trusting she hears it correctly.”

ILB: Much more about the Kentucky system, including its failings, is found in this valuable Sept. 6, 2010 ILB entry. (Note that the entire LCJ story quoted in the 2010 ILB entry is still available, here in the paper's paid archive.)

Posted by Marcia Oddi on Tuesday, August 07, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 6 NFP)

For publication opinions today (5):

In Warrick County, Indiana, A Political Subdivision, by and through its County Commissioners, Nova Conner, Don Williams, and Phillip Baxter, and Cincinnati Insurance Co. v. William Hill and Stacy Hill, an 11-page opinion, Judge Bradford writes:

In this interlocutory appeal, Appellant-Defendant Warrick County, Indiana, challenges the trial court’s denial of its motion for summary judgment in an action brought against it and Cincinnati Insurance Company by Appellees-Plaintiffs William Hill and Stacy Hill. Upon appeal, Warrick County claims that the trial court erred in denying summary judgment on multiple grounds. We affirm. * * *

[IV] Finally, Warrick County points to the Release Agreement the Hills signed in 2002 and claims that its terms preclude their current action. * * *

It appears that the trial court concluded the language of the Release Agreement was unambiguous and clearly did not cover structural damage caused by the heightened water table brought about by the County’s filling of the ditch. To the extent the trial court may have found an ambiguity, the denial of summary judgment demonstrates that the ambiguity could not be resolved without the aid of a factual determination.

We find no error in the trial court’s decision.

In Matthew Manuel v. State of Indiana , a 17-page opinion, Judge Riley writes:
Appellant-Defendant, Matthew Manuel (Manuel), appeals his conviction for domestic battery, a Class D felony, Ind. Code § 35-42-2-1.3, after a bench trial. We affirm. * * *

Based on the foregoing, we conclude that: (1) the trial court did not abuse its discretion when it denied Manuel the opportunity to cross-examine D.S. about a past incident; (2) the trial court did not abuse its discretion when allowed the State to ask D.S. whether she had testified truthfully; and (3) the State produced sufficient evidence to prove beyond a reasonable doubt that Manuel committed domestic battery as a Class D felony.

In Dean V. Kruse Foundation, Inc., Dean Kruse and Kruse International v. Jerry W. Gates , a 23-page opinion, Judge Riley writes:
Appellants-Defendants/Counterclaim Plaintiffs, Dean V. Kruse Foundation (Foundation), Dean V. Kruse (Kruse), and Kruse International (collectively, the Kruse Parties), appeal the trial court’s judgment against Appellee-Plaintiff/Counterclaim Defendant, Jerry W. Gates (Gates). We reverse and remand with instructions. * * *

Issue. Whether the trial court erred when it interpreted the parties’ agreement to contain a liquidated damages clause.* * *

Based on the foregoing, we conclude that the trial court erred in determining that the forfeiture provision in the Purchase Agreement constituted a liquidated damages clause. We reverse the judgment of the trial court and remand with instructions to the trial court to calculate the measure of damages as a result of Gates’ breach of contract.

In James E. Corry and Gayle Corry v. Steve Jahn, Woodland Homes of Ft. Wayne, LLC, Scott R. Malcolm, Oakmont Development Co. LLC, and Mike Thomas Associates/F.C. Tucker, Inc., a 20-page opinion, Judge Bailey concludes:
Oakmont and MTA were not parties to the construction contract at issue in this litigation. Thus, the trial court properly granted them summary judgment on the breach of contract claim. No cause of action arises from belated provision of a limited agency disclosure form, and thus the trial court properly granted Oakmont and MTA summary judgment on this claim. The trial court properly declined to impose an implied warranty of habitability on Oakmont and MTA where the builder was the entity best positioned to prevent the harm. Oakmont and MTA are entitled to summary judgment upon the breach of warranty of habitability claim. The Corrys’ claim is for economic loss and they are relegated to recovery in contract as opposed to negligence law. The trial court properly granted Oakmont and MTA summary judgment upon the negligence claim. Finally, the designated materials reveal that Oakmont and MTA made no fraudulent misrepresentation to the Corrys. Jahn did not act as an agent of either entity when representing that his building methodology was superior and would produce a long-standing product. Accordingly, the trial court properly granted summary judgment to Oakmont and MTA on the fraud claim.
Affirmed.
In Naveed Gulzar v. State of Indiana , a 9-page opinion, Judge Vaidik writes:
Naveed Gulzar pled guilty to theft in 2006. In 2011, he sought post-conviction relief on the grounds of ineffective assistance of counsel. Specifically, Gulzar argued that his trial counsel was ineffective for failing to advise him that automatic deportation was a consequence of his pleading guilty to theft. The post-conviction court denied relief. We affirm. * * *

Gulzar testified that he would not have pled guilty had trial counsel advised him that his guilty plea would have resulted in automatic deportation.Under the analysis in Segura, Gulzar’s conclusory testimony to that effect is insufficient. He must also show special circumstances or present specific facts that warrant post-conviction relief.

NFP civil opinions today (2):

In re the Marriage of: Dennis Coffman v. Jennifer Coffman (NFP)

Term. of Parent-Child Rel. of X.B. and L.B. (Minor Children) and J.B. (Father) v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (4):

Darrell Lawrence v. State of Indiana (NFP)

Raymon Johnson v. State of Indiana (NFP)

Kevin K. Cotton v. State of Indiana (NFP)

Dustin L. Bess v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 07, 2012
Posted to Ind. App.Ct. Decisions

Courts - Northwestern Univ. Law Review devotes entire issue to Justice John Paul Stevens

Access Northwestern University Law Review, Volume 106, Issue 2 here.

Posted by Marcia Oddi on Tuesday, August 07, 2012
Posted to Courts in general

Vacancy on COA 2012 - Daniels selects Pyle as new Indiana Court of Appeals judge

Gov. Daniels' press release, just issued:

INDIANAPOLIS (August 7, 2012) – Governor Mitch Daniels announced today that he has selected the Honorable Rudolph “Rudy” Reginald Pyle III, Madison Circuit Court, to the Indiana Court of Appeals for the Fourth District. This is Daniels’ third appointment to the 15-member court.

“I can’t tell you what a pleasure it is to introduce Indiana’s next judge of the appellate court,” said Daniels. “From a group of three very well qualified people, I am convinced we have identified the right next judge for Indiana’s second-highest court. He is superbly and broadly qualified for the job.”

The vacancy was created by the retirement of Judge Carr L. Darden, who has served for nearly 18 years. Darden was first appointed to the court in 1994 and was retained on the Court by election in 1998 and 2008.

The Indiana Judicial Nominating Committee provided three nominees to Daniels in July. The other nominees were the Honorable Robert Randolph Altice, Jr., Marion Superior Court 2, and appellate attorney Patricia Caress McMath. A date for Pyle’s robing ceremony will be determined by the court.

Pyle, 42, of Anderson, has served on the Madison Circuit Court, Division I since October 2009. As presiding judge, he managed a docket that encompassed both criminal and civil cases. During his time on the bench, Pyle instituted a number of technological improvements to the courtroom and implemented an aggressive docket management system to promote the advancement of jury trials. Pyle also created a public service campaign to increase community support for jury service.

"I am humbled and honored that Governor Daniels would entrust me with an appointment to the Indiana Court of Appeals,” said Pyle. “I am further honored to be able to succeed my mentor, Judge Carr L. Darden."

Before joining the Madison Circuit Court bench, Pyle was a deputy prosecutor in Madison County. He oversaw the prosecution of major felony cases including attempted murder, robbery, fraud and violations of the Racketeer Influenced and Corrupt Organizations Act. From 2005 to April 2006, he was a private practice attorney, focusing on trial and appellate advocacy. Pyle was a law clerk for Judge Darden on the Court of Appeals from 2000 to 2004.

Before beginning his legal career, Pyle was a trooper with the Indiana State Police, where he was a member of the tactical intervention platoon. He is an adjunct professor at Anderson University and is on the board of managers of the Indiana Judges Association.

Pyle earned his undergraduate degree from Anderson University, a master’s degree from the College of William & Mary and his law degree from Indiana University.

Posted by Marcia Oddi on Tuesday, August 07, 2012
Posted to Vacancy on COA 2012

Vacancy on COA 2012 - Gov. Daniels appoints Rudy Pyle to the Court of Appeals

Hon. Rudy Pyle newest Court of Appeals Judge, replaces retiring Judge Carr Darden.

Here again are the photos and applications of the three finalists: Judge Robert R. Altice, Jr.; Patricia C. McMath; and Judge Rudolph R. Pyle, III.

Posted by Marcia Oddi on Tuesday, August 07, 2012
Posted to Vacancy on COA 2012

Law: "Lawyers Have Duty to Stay Current on Technology’s Risks and Benefits, New Model Ethics Comment Says"

See the story here in the ABA Journal.

Posted by Marcia Oddi on Tuesday, August 07, 2012
Posted to General Law Related

Courts - "Gay married couple allowed to file joint bankruptcy in Kentucky"

Andrew Wolfson reports today in the Louisville Courier Journal - some quotes from the long story:

Despite living together for 16 years, Bob Joles and Joey Lester of Louisville could not legally marry in the state of Kentucky.

Even after they wed May 9 in Buffalo, N.Y., the state of Kentucky wouldn’t recognize their union.

But that didn’t stop them in June from becoming the first gay married couple to file jointly for bankruptcy in Kentucky. Nor did it prevent a federal bankruptcy judge from confirming their reorganization plan July 24.

Kentucky voters amended the state constitution in 2004 to say that “only a marriage between one man and one woman shall be valid or recognized as a marriage.” But Joles and Lester were allowed to file a joint Chapter 13 bankruptcy in federal court because the Obama administration has decided it will no longer contest such filings by married same-sex couples. * * *

The Justice Department and the U.S. Administrative Office of the Court do not track how many bankruptcy cases have been filed jointly by gay married couples. But bankruptcy court officials in Louisville and Lexington confirmed that the Joles-Lester case is the first in Kentucky.

The couple’s lawyer, Shannon Fauver, who said she plans to file a bankruptcy petition for a married lesbian couple in the next few weeks, said the court’s acceptance “gives them protections they didn’t have before. It is a big deal.”

Chris Hartman, director of the Fairness Campaign, a civil rights group, said the change “is good news,” adding that there are more than 1,400 legal privileges, many of them money-saving, that are automatically afforded heterosexual couples yet almost universally denied to same-sex ones.

Posted by Marcia Oddi on Tuesday, August 07, 2012
Posted to Courts in general

Vacancy #2 on Supreme Court 2012 - Tomorrow's Interview Times Set for Ten Supreme Court Applicants

From a release from the Ind. Courts:

The interview schedule for the ten candidates applying to be the 108th justice of the Indiana Supreme Court is now available. All semi-finalist applicants will be interviewed by the Commission on Wednesday, August 8, 2012. The interviews are open to the public and press.

8:30 a.m. – 9:00 a.m. – Hon. Marianne L. Vorhees
9:00 a.m. – 9:30 a.m. – Hon. Cale J. Bradford
9:30 a.m. – 10:00 a.m. – Ms. Erin Reilly Lewis
(Break)
10:15 a.m. – 10:45 a.m. – Mr. Geoffrey G. Slaughter
10:45 a.m. – 11:15 a.m. – Hon. Frances M. Gull
11:15 a.m. – 11:45 a.m. – Ms. Andrielle M. Metzel
(Lunch and Executive Session for Judicial Qualifications business)
1:30 p.m. – 2:00 p.m. – Hon. Mary G. Willis
2:00 p.m. – 2:30 p.m. – Mr. John P. Young
(Break)
2:45 p.m. – 3:15 p.m. – Hon. Steven R. Nation
3:15 p.m. – 3:45 p.m. – Hon. Loretta H. Rush
4:00 p.m. – Deliberations in Executive Session followed by public session and vote to name three nominees for vacancy * * *

The public interviews will take place at the State House in Room 319. After the interviews, the Commission will deliberate in executive session. The Commission will consider the applicants’ legal education, legal writings, reputation in the practice of law, physical condition, financial interests, activities in public service and any other pertinent information.

The Commission will vote on and name the three final candidates in public after the executive session concludes on August 8th. A press release announcing the final candidates will be posted to courts.in.gov shortly after the public vote.

After deliberations in executive session, the Commission will vote in public to send the three most qualified candidates to Governor Daniels. The Governor will select Indiana's 108th justice.

Posted by Marcia Oddi on Tuesday, August 07, 2012
Posted to Vacancy #2 on Supreme Court 2012

Law - "Despite Warnings, Lawyers Still Fall for Collection Scam"

The ILB has had a number of entries warning of internet scams aimed at attorneys (start with this Jan. 17, 2012 entry and work backwards). Yesterday Jennifer Smith of the WSJ Law Blog wrote:

The scheme isn’t new — essentially, scammers posing as would-be clients living abroad convince lawyers to cash counterfeit “settlement” checks, take a cut as attorney fees, then wire the balance to overseas bank accounts. The money is gone by the time the law firm’s bank figures out the check was fake.

Sounds pretty transparent, right?

But federal investigators say the scams are so elaborate — and targeted to mimic the way many lawyers now get online client referrals — that attorneys continue to fall for them.

The blog item links to a much longer story by the same reporter in the August 5th WSJ ($$$). A few quotes:
Prosecutors say Emmanuel Ekhator, a Nigerian national, masterminded a scheme that defrauded more than 80 lawyers from small and midsize law firms in the U.S. and Canada of at least $32 million. Mr. Ekhator, whom prosecutors say was living in Canada at the time of the alleged frauds, has pleaded not guilty. His attorney declined to comment.

"What makes this so unusual is that the scheme was so sophisticated that well-respected, established law firms were taken in by the fraudsters," said Christy H. Fawcett, an assistant U.S. Attorney in Harrisburg who is prosecuting the case. The case was investigated by Mr. Di Rienzo's U.S. Postal Inspection Service team, the U.S. Secret Service, the Federal Bureau of Investigation and Canadian and Nigerian authorities.

While many online scams target gullible consumers or individuals, in recent years attorneys have become attractive prey. That is in part because they increasingly rely on Internet referrals to draw clients and conduct much of their business via email, lawyers and law-enforcement officials say. And despite repeated warnings from law-enforcement agencies and bar associations about collections scams, some lawyers continue to fall for them.

More from the story:
Posing as a Vietnamese woman who lived in South Korea, the would-be client asked for help collecting a $400,000 insurance settlement. Mr. Goldenziel could take whatever he wanted off the top and then wire her the rest. Soon a $400,000 cashier's check arrived at his law office. "The check looked very legitimate," Mr. Goldenziel said. "The insurance policy looked very legitimate."

He called the insurance company to verify, using a number the client supplied, then spoke with a person at the bank who was supposedly handling the matter. Prosecutors said the bank call was routed to one of the scammers who posed as a bank employee vouching for the check's validity.

Posted by Marcia Oddi on Tuesday, August 07, 2012
Posted to General Law Related

Courts - "Chief Justice calls Monday's shut down of the courts 'disheartening'"

Jason Riley has this story yesterday in the Louisville Courier-Journal. Some quotes from the beginning of the long story:

Kentucky Chief Justice John D. Minton Jr., said it was “quiet and dark” in the Warren County courthouse Monday, as it was in courthouses across the state as the state’s justice system shut down for the day to save money.

“It’s very disheartening to inform the public the courts aren’t available when they might need them,” Minton said of the first of three furlough days the courts are taking this year as a way to help cope with a slashed budget.

While an inconvenience to the public - attorneys couldn’t file motions, citizens couldn’t pay fines or other costs, trials were put on hold - Minton said it also meant a day without pay for already underpaid court employees “who can least afford it.”

“It’s a paycheck that will be one day short,” he said, adding that the furlough days were spread out in hopes of easing the burden on employees.

The other furlough days are on Sept. 4 and Oct. 15. Minton was working as the law prohibits him from reducing the salaries of judges or circuit clerks — who are elected — but said that he would be returning three days of his own salary and he expects some others will do the same. Judges could still work Monday but they didn’t have staffs.

District Judge Angela McCormick Bisig said the furloughs meant a lot of people who were arrested late Sunday or Monday, even on minor offense, could be stuck in jail until Tuesday because they were unable to go in front of a judge.

And the furloughs will have a lingering effect as Tuesday’s docket will be backlogged and those arrested could have a lengthy wait even after the courthouse doors are open.

Posted by Marcia Oddi on Tuesday, August 07, 2012
Posted to Courts in general

Vacancy on COA 2012 - Tuesday Governor Daniels will announce his selection for a vacancy on the Indiana Court of Appeals created by the retirement of Judge Carr Darden, 10 a.m. Governor’s Office [Updated]

Per an advisory from the Governor's office.

The Governor had 60 days from June 11th to make a decision.

Here are the photos and applications of the three finalists.

Posted by Marcia Oddi on Tuesday, August 07, 2012
Posted to Vacancy on COA 2012

Monday, August 06, 2012

Ind. Decisions - One Supreme Court disciplinary opinion, filed Aug. 1, has been posted by the Court

Ths 5-0, 3-page opinion in In the Matter of Cecelia M. K. Hemphill imposes a sanction of a minimum six month suspension, without automatic reinstatement. The facts are too long to summarize, but this paragraph from the Court speaks much:

An important factor in determining appropriate discipline is the risk to the public should we allow Respondent to continue in the practice of law. See Matter of McCarthy, 668 N.E.2d 256, 258 (Ind. 1996). Respondent lacks any insight into why her conduct was wrong, maintaining that she did the right thing because she was serving a higher purpose of protecting the safety of the children. Convincing evidence was presented that this incident was not an isolated lapse. We therefore conclude that Respondent should be suspended without automatic reinstatement.

Posted by Marcia Oddi on Monday, August 06, 2012
Posted to Ind. Sup.Ct. Decisions

The Indiana Law Blog: Ind. Decisions - Transfer list for week ending Aug. 3, 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, Aug. 3, 2012. It is one page (and 2 cases) long.

In first case listed, Anyango v. Rolls-Royce Corporation, transfer was granted, with opinion, on July 30, 2012.

The second case listed, Kindred v. Townsend, also already has been reported on the ILB, in this Aug. 1, 2012 entry headed " Supreme Court denies transfer in quiet title case, J. Sullivan dissents in writing."

Posted by Marcia Oddi on Monday, August 06, 2012
Posted to Indiana Transfer Lists

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

For publication opinions today (2):

In PNC Bank, National Association, et al. v. LA Development, Inc., Andrew L. Arbuckle, et al. and INTA, LLC v. PNC Bank, National Association, et al. , a 13-page opinion, Sr. Judge Darden writes:

Issue. Whether the trial court abused its discretion in denying PNC’s motion for the mandatory appointment of a receiver in a mortgage foreclosure action. * * *

Based upon our construction of the loan documents and our interpretation of the extrinsic evidence, we must conclude that the Bank did not relinquish all of its rights and remedies in the Subordination Agreement. Because the Bank has shown that the requisite provisions of Indiana Code section 32-30-5-1 have been satisfied, and the Bank did not relinquish its mandatory right to the appointment of a receiver, we conclude that the trial court’s order is erroneous.

Conclusion. We reverse and remand with instructions that the trial court vacate its order and grant the Bank’s request for the appointment of a receiver.

Donald Gregory Huls v. State of Indiana - the validity of a claim of self defense is central to this 13-page opinion by Sr. Judge Barteau, who writes:
A valid claim of defense of oneself, another person, or one’s property is legal justification for an otherwise criminal act. Pursuant to the governing statute:
A person:

(1) is justified in using reasonable force, including deadly force, against any other person; and
(2) does not have a duty to retreat;

if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle.

Ind. Code § 35-41-3-2(d) (2006). Nevertheless, a defendant is not justified in using force if “the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.” Ind. Code § 35-41-3-2(g)(3). Thus, in order to prevail on a claim of self-defense, the defendant must show that he or she: (1) was in a place where he or she had a right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great bodily harm. Wilson, 770 N.E.2d at 800. Furthermore, an initial aggressor must withdraw from the encounter and communicate the intent to do so to the other person before he or she may claim self-defense. Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011), trans. denied.

Here, Huls contends that the evidence establishes that he shot at the teenagers because he believed it necessary to protect himself and his property. We disagree. Two of the teenagers stated that they never entered his property. Furthermore, the police found a hat belonging to one of the teenagers in the wooded area next to Huls’ property rather than on Huls’ property. In any event, Huls opened fire without identifying his target, and after he opened fire he did not attempt to end the encounter and communicate his intent to do so, in violation of the statute. See Ind. Code § 35-41-3-2(g)(3). To the contrary, Huls continued to shoot even after C.M. shouted at Huls to stop firing and stated that he and his companions were leaving. Thus, the evidence demonstrates that Huls instigated and participated in the violence, and the State carried its burden of negating Huls’ claim of self-defense.

ILB: Notably, this is the same provision cited in the Supreme Court's Barnes decision.

NFP civil opinions today (2):

Preload, Inc. v. Hammond Water Works Department and Jeffrey Porter General Contractors, Inc. (NFP)

Paul Edward McMinn v. Lisa Stephanie McMinn (NFP)

NFP criminal opinions today (2):

Janet M. Wright v. State of Indiana (NFP)

Brian L. Millard v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 06, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Female power: Women now top Democrats in Ind. Senate, House" -- but the accomplishment here and in other venues sadly may be fleeting

That first part is the headline to a story today by Dan Carden of the NWI Times. It may be incorrect, or only temporarily correct. I believe Senator Simpson, Senate Minority Leader, is not running for reelection in the Senate. She elected instead to run for Lt. Governor. Rep. Lawson is currently House minority leader, but there is the possibility she will not retain that position after the election - as Maureen Hayden of CNHI reports in an Aug. 5th story:

Lawson may be a temporary place holder — House Democrats will have to vote again after the November election — but she’s pounding on this message while she can: The world only spins forward.
Brian Howey had a similar report this weekend.

Carden's story concludes:

Despite constituting 51 percent of Indiana's more than 6.5 million residents, women are rarely elected to positions of power in state government. In the General Assembly, only 20 percent of the 150 representatives and senators are female.

Hoosier women have served over the years as secretary of state, state auditor, state treasurer, state superintendent and attorney general, but no woman has won election to those offices since 2004.

Indiana has had two female lieutenant governors since 2003, and the Democratic and Republican candidates for lieutenant governor this year are both women, but no woman has ever been governor of Indiana.

Only one woman has ever served on the Indiana Supreme Court. She resigned in 1999 after five years to return to private practice.

Adding insult to injury, the Fort Wayne Journal Gazette editorialized this Sunday that:
[T]here’s a dirty little secret of Title IX: Female coaches have become a casualty of the same law that provided such huge benefits to female athletes. In 1972, more than 90 percent of the people coaching women’s teams were women. Today, that number is 43 percent.

The explanation is as simple as it is discouraging. By legitimizing women’s sports, Title IX bestowed a new level of respect – and significantly higher salaries – on college coaching jobs, transforming them from passion projects for the most dedicated women’s sports advocates to serious career paths.

As soon as salaries began to rise, more men became interested in jobs coaching women, says Judy Sweet, a longtime athletics administrator who became the NCAA’s first-ever female athletic director of a combined men’s and women’s program at the University of California at San Diego in 1975. Assistant coaches of men’s teams saw a chance to be promoted faster by applying to head-coach jobs on the women’s side. Job opportunities doubled for graduating male athletes who weren’t going pro but wanted to stay in the game. Athletic directors, whose ranks have always been overwhelmingly male, increasingly hired other men for open positions.

The result has been a consistent decrease in the percentage of female coaches. In 1987, the share of women’s teams coached by women dipped below 50 percent for the first time. Since 2000, men have been hired for more than two-thirds of open jobs coaching women’s teams.

“In too many cases, athletic directors take the easy way out,” Sweet says. “Instead of actively recruiting outside of their networks, they hire the people they already know, and their networks are likely to be male-dominated.” * * *

The generation gap is apparent among coaches as well – especially in basketball, the most prominent women’s college sport, which has seen the percentage of female coaches drop from 79.4 percent to 59.5 percent in the Title IX era. The most prominent female college coaches are either retired or in the twilight of their careers.

Purdue women's basketball has had a great record of hiring terrific female coaches; Indiana University, not so much ...

Posted by Marcia Oddi on Monday, August 06, 2012
Posted to Indiana Government

Ind. Courts - Reminder: Governor to swear in new chief justice this morning

Justice Brent Dickson will be formally sworn in as Chief Justice of Indiana. 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.

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

For more, see this WISHTV8/AP story.

Posted by Marcia Oddi on Monday, August 06, 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?

From Sunday, August 5, 2012:

From Saturday, August 4, 2012:

Posted by Marcia Oddi on Monday, August 06, 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 8/6/12):

Next week's oral arguments before the Supreme Court (week of 8/13/12):

Webcasts of Supreme Court oral arguments are available here.


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

Monday, August 6

Tuesday, August 7

Wednesday, August 8

Next week's oral arguments before the Court of Appeals (week of 8/13/12):

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, August 06, 2012
Posted to Upcoming Oral Arguments

Sunday, August 05, 2012

Law - "Avoiding Estate-Tax Traps: A small mistake makes a big difference here"

Laura Saunders August 3, 2012 "Tax Report" column in the WSJ ($$$) begins:

Are you married? Then put a copy of this column with the "valuable documents file" you are leaving—or ought to be—for your heirs.

Here's why: The Internal Revenue Service in June issued guidance for an estate-tax law Congress passed late in 2010. As a result, many couples will now find it easier to maximize federal estate-tax savings without costly predeath planning.

There is an important hitch, however. An estate-tax return must be filed soon after the first partner's death—usually within nine months—in order for a couple to get this new benefit.

If the estate's executor misses that crucial filing, the couple will likely lose the value of one partner's estate-tax exemption. That's currently $5.12 million per individual, so the loss would mean sheltering only about $5 million versus $10 million of assets per couple from federal estate tax.

Posted by Marcia Oddi on Sunday, August 05, 2012
Posted to General Law Related

Ind. Courts - 2012 Court Costs/Fees Chart

Here it is, all in one place, 28 pages. From the Indiana Judicial Center.

Posted by Marcia Oddi on Sunday, August 05, 2012
Posted to Indiana Courts

Ind. Courts - "Lake County judges rebuff new nepotism law"

Bill Dolan reported yesterday in the NWI Times:

CROWN POINT | Lake County judges are declaring their independence from the state's new nepotism law.

Lake Chief Superior Court Judge John Pera said Friday he informed county officials this week that the 16 judges in his court system aren't obligated to certify they follow the new code, which forbids elected county, city, town and township officials from hiring family members anymore.

Lake Circuit Court Judge George Paras, whose court is separate from the local superior court system, said Friday he and Pera are both following policy outlined by the Indiana Division of State Court Administration.

That policy notes judges have their own ethical safeguards in place and the new law impinges on judicial independence guaranteed under the Indiana Constitution. * * *

Pera said the rest of local government is trying to catch up to the ethical safeguards long in place for judges under the Indiana Code of Judicial Conduct. He said judges not only must avoid hiring their own relatives, they also are prohibited from hiring relatives of existing employees.

Pera said judges may voluntarily comply with the law if they choose, but he will stand on principle and not fill out any forms certifying he is obligated under the law.

"Matters of judicial independence are always thorny. Everyone agrees with them in the abstract, but when it comes to applying them in the real world, it can sometimes ruffle feathers," Pera said.

"I don't want people to think judges are arrogant or feel they they are better than anyone else. It's a matter of judges and their staffs being held to different standards than the rest of government," Pera said.

Lake County Prosecutor Bernard Carter said Friday he is voluntarily complying with the new law even though the Indiana Prosecuting Attorneys Council recently declared that prosecutors are not obligated to do so since they, like judges, are state employees.

Posted by Marcia Oddi on Sunday, August 05, 2012
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - "No ruling on lobbying; no Daniels contract as Purdue president, either"

This story yesterday from Eric Weddle of the Lafayette Journal Courier, reporting:

In late June, Daniels said he asked the state’s inspector general for an informal advisory opinion on whether it would be legal for him to advocate for Purdue at the Statehouse under Indiana’s “revolving door law.”

Daniels was elected as Purdue’s 12th president in June and plans to take office in January after completing his second term as governor.

The looming question is whether a one-year “cooling off period” required by the State Ethics Code will apply to Daniels in 2013. The ethics code is intended to keep former public employees from working as a lobbyist for a year after leaving a state job.

But an answer doesn’t seem clear cut. An executive order signed by Daniels on the topic differs with the state ethics code on whether the cooling off period relates to lobbying of the legislature or the executive office. * * *

Another unanswered question is when Daniels’ contract as Purdue president — specifying his salary, term limit and perks — will become known. So far, only a memorandum of understanding between Daniels and board of trustees Chairman Keith Krach has been signed.

On Friday, Purdue spokesman Chris Sigurdson said a contract has yet to be created for Daniels.

For background, start with this ILB entry from June 26, 2012.

Posted by Marcia Oddi on Sunday, August 05, 2012
Posted to Indiana Government

Stage Collapse - More on "Claimants sign on to State Fair settlement offers: $13.2 million proposal so far accepted by 51 claimants"

Updating Attorney General Zoeller's announcement of August 2nd, here is a long AP story, reported by Charles Wilson. Some quotes:

The proposed settlement offer allows victims and their families to share in the $6 million Indiana is offering only if they agree to clear Mid-America Sound and James Thomas Engineering of any wrongdoing in the Aug. 13 tragedy * * *

"During the legislative session, legislators made it clear that they wanted the attorney general's office to attempt to speed as much money to the victims as possible, and to try to resolve various litigation and indemnification claims involving the State Fair tragedy, if possible. The only way to resolve such claims and accomplish those goals expeditiously was to facilitate a larger public-private settlement," Corbin told The Associated Press in an email.

Private lawsuits could take years to wind their way through court, he noted.

The state operates the state fair commission, and its liability was limited to $5 million by Indiana law. However, the Legislature earlier this year approved a one-time additional payment of $6 million to victims of the accident at last year's fair. That money is the state's share of the joint settlement offer. Families and victims who accepted the initial payments had to agree not to sue the state.

Loyola University law professor Blaine G. LeCesne said victims who accept the settlement, which he called "woefully inadequate," might be giving up more money in the long run.

"The proposed settlement doesn't even adequately cover the claims of the deceased, much less those who were injured," said LeCesne, who is not involved in the case.

But Indianapolis attorney Carl Brizzi, who is representing the widow of Glenn Goodrich, a security guard killed in the collapse, said if the victims don't take the offer on the table, they might end up with nothing.

"The situation is such that at least two of the private defendants are contributing almost their entire policy limits," Brizzi said. "Anyone with a legitimate claim is taking a chance that the funds will be exhausted after the participating plaintiffs settle." * * *

Rep. Ed DeLaney, D-Indianapolis, unsuccessfully tried during this year's legislative session to increase the state's liability cap from $5 million, which was set in 1974, to $22 million based on the rate of inflation since then.

DeLaney said Wednesday that the state should have set aside more money for a settlement up front, rather than raised the amount later — something the other defendants can't do.

"I'm very troubled by the way we've handled that," he said.

Posted by Marcia Oddi on Sunday, August 05, 2012
Posted to Stage Collapse

Friday, August 03, 2012

Ind. Decisions - Two interesting non-Indiana opinions from the 7th Circuit yesterday

Flava Works v. myVidster.com, an Aug. 2 opinion from Circuit Judge Posner - here is a sample:

No matter; as we said, there is no contention that any of Flava’s videos are illegal.

The websites that host them are behind a “pay wall”; that is, access to them (except for previews) is available only upon payment of a fee in advance. The user must agree not to copy, transmit, sell, etc. the video, although Flava’s terms of use permit the user to download it to his computer for his “personal, noncommercial use”—only.

Enter myVidster, an online service engaged in what is called “social bookmarking”—enabling individuals who have similar tastes to point one another (and actually provide one another access) to online materials that cater to those tastes, by bookmarking materials on the social-bookmarking service’s website. We need to describe how this works.

Patrons of myVidster find videos on the Internet, and if they want to make them available to other patrons of myVidster (who apparently can be anyone—as far as we can discern from the record all content on myVidster is publicly accessible) “bookmark” (note) them on myVidster’s website. Upon receiving the bookmark myVidster automatically requests the video’s “embed code” from the server that hosts (that is, stores) the video. In the present context “server” denotes a specialized computer for storing and transmitting bulky online materials, like videos. When you upload a video to the Internet, the video is stored on a server that transmits the video to other Internet users’ computers on request.

The embed code contains the video’s web address plus instructions for how to display the video. Armed with that code, myVidster creates a web page that makes the video appear to be on myVidster’s site. When you visit the site, that video and other videos appear, each in the form of a “thumbnail,” a miniature picture of a video’s opening screen shot. A click on a thumbnail activates computer code that connects the visitor’s computer to the server; the connection made, the visitor is now watching the video. He’s watching it through a frame that myVidster has put around it, containing ads (it’s by selling ads for display on its website that myVidster finances its operation). He may think, therefore, that he’s seeing the video on myVidster’s website. But actually the video is being transmitted directly from the server on which the video is stored to the viewer’s computer. Someone had uploaded the video to that server, and later a subscriber to myVidster had come across it and decided to bookmark it. This led to the creation of a page on myVidster’s website and by clicking on the page other visitors to myVidster can now view the video—but on the server that hosts the video, not on myVidster’s website; the bookmarked video is not posted on myVidster’s website.

Jeffrey Lox v. CDA Limited is an Aug. 2nd opinion by Circuit Judge Flaum involving the FDCPA. Some quotes:
Contrary to some other circuits, see, e.g., Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061 n.3 (9th Cir. 2011), we treat the question of whether an unsophisticated consumer would find certain debt collection language misleading as a question of fact. See Walker v. Nat’l Recovery, Inc., 200 F.3d 500, 503 (7th Cir. 1999). As an outgrowth of this practice, we have determined that there are three categories of § 1692e cases. * * *

Thus, to succeed on this appeal, Lox must convince us that CDA’s statement regarding attorney fees is not only false, but would mislead the unsophisticated consumer. Further, since Lox did not present any extrinsic evidence at the summary judgment stage, he must show that the statement is plainly and clearly misleading on its face, thus eliminating any need for evidence of its deceptive nature. There is one more hurdle that Lox must clear to succeed as well. * * * Lox must also demonstrate that CDA’s attorney fees language constituted a materially false statement. * * *

For the reasons stated above, we hold that the attorney fees statements found in CDA’s dunning letters were materially false and misleading on their face. We therefore REVERSE both the grant of CDA’s summary judgment motion and the denial of Lox’s summary judgment motion, and REMAND to the district court for proceedings consistent therewith.

Posted by Marcia Oddi on Friday, August 03, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Texts Violated No-Call Law, Ag's office says

This is good news for those who receive unwanted $ text messages on their cells. WRTV6 is reporting this afternoon that: "A company that state officials said sent unwanted text messages to Indiana residents has been fined for violating the do-not-call law." More:

"This is the first we've had the need to go after these people. I think this is the first case … we found somebody and tracked it down," Zoeller said. " I think most people realize that we are starting to get bombarded with more of these texting, electronic messages. We're going to have to keep up with technology."

Posted by Marcia Oddi on Friday, August 03, 2012
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides two Indiana cases today

In Daryl Scruggs v. Carrier Corp. (SD Ind., Barker), a 13-page opinion, Circuit Judge Kanne writes:

In 2006, Carrier Corporation set out to remedy an excessive employee absenteeism problem which had developed at its Indianapolis manufacturing plant. As part of its plan, Carrier hired a private investigator to follow approximately thirty-five employees who were suspected of abusing the company’s leave policies. One of these employees was Daryl Scruggs, who was authorized to take intermittent leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., to care for his mother in a nursing home. After surveillance revealed that Scruggs never left his home on a day he requested FMLA leave, Carrier suspended Scruggs pending further investigation. Scruggs submitted several documents to demonstrate that he picked up his mother from the nursing home on that day and took her to a doctor’s appointment, but Carrier believed the documents were suspicious and inconsistent. Accordingly, Carrier terminated Scruggs for misusing his FMLA leave. Because we find that Carrier had an “honest suspicion” that Scruggs misused his FMLA leave, we affirm the district court’s grant of summary judgment in favor of Carrier.
In BKCAP, LLC, GRAYCAP, LLC, and SWCAP, LLC v. CAPTEC Franchise Trust (ND Ind., Cosbey), an 11-page opinion, Circuit Judge Tinder writes:
Quality Dining, Inc. owns dozens of restaurants in several states, including Michigan, Indiana, and Pennsylvania. To refinance its debt, Quality Dining created subsidiaries (the plaintiffs-appellants or “Borrowers”) and made a deal with Captec Financial and GE Capital for 34 separate loans totaling $49 million, with each loan secured by a restaurant. Captec Financial assigned 13 of its loans to Captec Franchise Trust 2000-1 (the defendant-appellee or “Lender”). The parties disagree about the prepayment requirements for 12 of those loans. This is the second time we have seen this dispute, but the basic issue in this appeal is the same as it was in the first: According to the loan agreements, what is the prepayment penalty? In the first appeal, the ambiguity of the prepayment provision made answering that question impossible. In this appeal, we have the benefit of a full trial on the merits. * * * AFFIRMED.

Posted by Marcia Oddi on Friday, August 03, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Prosecutor Henderson reappointed to prestigious Rules Committee

Indiana Courts has just tweeted:

The highest court reappointed Jessie Cook, Keith Henderson, & Christopher Scanlon to the SC Committee on Rules of Practice and Procedure.
ILB: Each of these individuals has been reappointed for a second 5-year term on the Supreme Court Committee on Rules of Practice and Procedure.

Mr. Henderson is the Floyd County prosecutor who was the subject of this Nov. 17, 2011 Court of Appeals ruling (trans. denied) relating to his book deal, which was the subject of a number of stories, including "Keith Henderson can't prosecute third David Camm murder trial, appeals court rules" (here and here).

Posted by Marcia Oddi on Friday, August 03, 2012
Posted to Indiana Courts

Ind. Courts - Nominations open for the 1st District attorney member of the Judicial Nominating Commission

Yesterday all members of the Indiana bar in the 1st Judicial District in good standing, received this "Notice of Election" from the Clerk of the Indiana Courts.

Essentially it says that nominations are now open for the attorney member who will represent the 1st District on the Commission for the next three years. This is the seat currently held by James O. McDonald of Terre Haute. Nominations, including a petition signed by 30 attorneys who reside in the 1st Judicial District, are due by Sept. 20, 2012.

Ballots and biographies of each candidate will be mailed to all First District attorneys on October 26, 2012. Ballots are due by 4:00 p.m. on November 16, 2012. The Clerk of the Supreme Court will count the ballots at 10:00 a.m. on November 16, 2012.

[Notice that the letter contains at least two errors in the list of counties in the 1st District. It is called the "3rd District" and also misspells "Putnam."]

The elections for the three districts are staggered, terms are three years, and an attorney may not serve successive terms.

Readers of the ILB have seen the important role the commissioners play in the selection of our Supreme and Appellate Court justices and judges.

The three names the Commission decides on and sends to the Governor are THE three names -- unlike in some other states, our Governor may not reject the panel and call for a new one. In Indiana, if the Governor does not make a selection within 60 days, the Chief Justice must pick the nominee, from the same three names. (Ind. Const. Art. 7, sec.10)

In addition, it is the Commission that, every five years (or when there is a vacancy), selects the Chief Justice from the members of the Supreme Court. (Ind. Const. Art. 7, sec.3)

The Judicial Nominating Commission also is the Judicial Qualifications Commission, which investigates and prosecutes disciplinary complaints against judges. Except perhaps for this year, with its numerous appellate vacancies, this is what the Commission has spent the bulk of its time on.

Posted by Marcia Oddi on Friday, August 03, 2012
Posted to Indiana Courts

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

For publication opinions today (1):

In Veolia Water Indianapolis LLC, City of Indianapolis Dept. of Waterworks, and City of Indianapolis v. National Trust Ins. Co. and FCCI Ins. Co. a/s/o Ultra Steak, Inc. d/b/a Texas Roadhouse, a 32-page opinion, Judge Crone writes:

On January 4, 2010, there was a fire at a Texas Roadhouse restaurant in Indianapolis. The Indianapolis Fire Department responded promptly, but discovered that the fire hydrants in the surrounding four blocks were frozen. This allegedly caused a delay of forty-five minutes in fighting the fire. Due to the delay, the Restaurant building was a total loss.

The Restaurant was insured by National Trust Insurance Company and FCCI Insurance Company. On October 7, 2010, the Insurers filed suit against the City of Indianapolis and its Department of Waterworks, as well as Veolia Water Indianapolis LLC, which at the time had a contract to operate the City's waterworks. The complaint alleged that the fire hydrants were frozen because the Appellants sold water from the hydrants to private companies, which had failed to properly close the hydrants after using them. The City filed a motion to dismiss, and Veolia filed a motion for judgment on the pleadings. Both motions claimed that the Appellants were entitled to immunity. The trial court denied the motions in part, concluding that the Appellants' commercial sale of water took their actions outside the scope of the common law immunity for firefighting. The trial court also found that the Insurers were third-party beneficiaries of Veolia's contract with the City.

We conclude that both the City and Veolia are entitled to common law immunity [ILB emphasis, see p. 10 of opinion], because the common law rule turns on the purpose for which the water is being used, not the underlying cause of the lack of water. We further conclude that the explicit language of the City's contract with Veolia disavows any intent to create third-party beneficiaries. Therefore, we reverse. * * *

Pursuant to long-standing precedent, common law immunity bars claims for fire damages stemming from an inadequate supply of water or inoperable fire hydrants. This immunity applies both to the City and to Veolia. We also conclude that Veolia did not waive its immunity, and even if it had, the explicit terms of the contract indicate that the Insurers are not third-party beneficiaries of the Management Agreement. We therefore reverse the judgment of the trial court.

NFP civil opinions today (0):

Michael L. Gaebler v. Janice (Gaebler) Bankert-Countryman (NFP)

NFP criminal opinions today (0):

Clair Wilson v. State of Indiana (NFP)

Michael Nance v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 03, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Criminal Appeals in the Post-Shepard Era: Justice Massa Is 18-1 for the Prosecution

Prof. Joel Schumm's analysis of Justice Massa's voting record over his first four months on the Indiana Supreme Court, prepared for the Indiana Law Blog, is summarized and featured on the front page of next week's issue of the subscription-only Indiana Legislative Insight.

To read Prof. Schumm's analysis in full, go to this ILB entry from August 1st.

Posted by Marcia Oddi on Friday, August 03, 2012
Posted to Ind. Sup.Ct. Decisions

Thursday, August 02, 2012

Stage Collapse - "Claimants sign on to State Fair settlement offers: $13.2 million proposal so far accepted by 51 claimants"

Updating this ILB entry from June 24th, headed "Stage Collapse - "Stage collapse victims offered an additional $7.2M" Or is it $13.2 million? With conditions," and this update from July 12th, Attorney General Zoeller announced today:

INDIANAPOLIS – A vast majority of eligible claimants have notified the State they want to participate in the $13.2 million public-private settlement package offered to victims of the Indiana State Fair stage-rigging collapse of nearly one year ago.

Wednesday was the deadline for eligible claimants – the injured and estates of the deceased – to sign and return settlement application paperwork to the Indiana Attorney General’s Office. As of Wednesday night, 51 of the 62 eligible claimants who previously participated in last year’s original settlement have now accepted the new supplemental settlement plan. Settlement paperwork arriving by U.S. mail that was postmarked by midnight Wednesday night still will be accepted, so there could be more than 51 eligible claimants who ultimately participate.

Check here for more details.

Posted by Marcia Oddi on Thursday, August 02, 2012
Posted to Stage Collapse

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

Updating Tuesday's brief ILB entry, here is more from the WSJ Law Blog. A quote:

The court found that a 2005 Missouri law that capped non-economic damages at $350,000 in medical malpractice cases is unconstitutional, the AP said. The court’s majority opinion said “the right to trial by jury… is not subject to legislative limits on damages.” Non-economic damages are generally paid out to compensate for pain and suffering.
Here is a longer story from the August 1 St. Louis Post Dispatch.

Here are the specifics of the opinion (but not the opinion itself), from the law firm of Williams Venker & Sanders. The first paragraph of the analysis:

Overruling its decision in Adams By and Through Adams v. Children’s Mercy Hosp., 832 S.W.2d 898 (Mo.banc 1992), the Missouri Supreme Court in a 4 to 3 decision held that section 538.210 RSMo 2000 is unconstitutional to the extent that it infringes on the jury’s constitutionally protected purpose of determining the amount of damages sustained by an injured party. The Court further held that section 538.220 RSMo 2000 gives the trial judge the authority to determine the manner in which future damages shall be paid, including what portion should be paid in periodic installments as to both medical and other future damages, rejecting the defendants’ argument that all future damages must be paid in a lump sum.
ILB: Indiana has a case pending decision before the Supreme Court, Timothy W. Plank v. Community Hospitals of Indiana, Inc., that raises constitutional challenges to the statutory cap on damages. You can watch the May 3rd oral argument here. Here is info about the Oct. 27, 2011, 2-1 COA opinion.

[More] Here is the Missouri opinion, Deborah Watts as Next Friend for Naython Kayne Watts v. Lester E. Cox Medical Centers d/b/a Family Medical Care Center, Lester E. Cox Medical Centers, Melissa R. Hermann, M.D., Matthew P. Green, D.O., and William S. Kelly, M.D., issued July 31, 2012.

Posted by Marcia Oddi on Thursday, August 02, 2012
Posted to Courts in general

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

Updating this ILB entry from July 30th, which I noted presented an interesting contrast with Indiana, the results of the Texas race are in.

This story in the SE Texas Record, reported by Marilyn Tennissen, is headed:"Medina loses seat on Texas Supreme Court to tea party candidate." A few quotes from the story:

Republican incumbent Justice David Medina lost his Texas Supreme Court Place 4 re-election bid to former Houston district court Judge John Devine in one of the Republican Party's upsets in Tuesday's runoff elections. * * *

Devine earned the seat on the high court with 498,937 votes, or 53.27 of votes cast. Medina garnered 437,637 votes, or 46.72 percent.

Devine, 53, a former Harris County District Court judge, first gained national attention when he battled to keep the Ten Commandments hanging in his courtroom.

He had also been an anti-abortion activist and was arrested several times outside abortion clinics in Austin and Corpus Christi during the 1980s. * * *

In addition to [Gov.] Perry and [Texas AG] Abbott, Medina has the support of six retired Republican Supreme Court justices, 22 members of the Texas Legislature and U.S. Congress and influential groups like Texans for Lawsuit Reform and the Texas Medical Association. Medina was also endorsed by Right to Life and Alliance for Life because of his pro-life stance.

Even a poll of the State Bar of Texas showed Medina as the overwhelming favorite among Texas lawyers. Devine came in last in state bar poll.

But Devine's views made him a favorite of the Tea Party, and he had support from members of religious groups and conservative groups like the Eagle Forum, Concerned Women of Texas and the Liberty Institute, which fights legal battles on behalf of Christian issues.

Posted by Marcia Oddi on Thursday, August 02, 2012
Posted to Courts in general

Ind. Gov't. - "Daniels requests gubernatorial candidate input on Medicaid decisions"

The Governor's office has issued this press release:

INDIANAPOLIS (August2, 2012) -- Governor Mitch Daniels has asked the state’s three gubernatorial candidates for input about decisions Indiana must make to implement the federal Affordable Care Act (ACA) in the coming months.

In a letter
, the governor asked Rupert Boneham, John Gregg, and Congressman Mike Pence to state their preferences about operating a state or federal health insurance exchange and establishing an essential health benefits package. States must make decisions about both this year.

“Because the costs and consequences of our decision in these two matters will be borne by the next administration, I do not believe it would be right for me to make these choices. Assuming the deadline for the essential health benefits decision remains September 30, 2012, we are seeking to determine whether there can be an agreement among the candidates about what to include,” the governor said in the letter.

“Second, I am asking each of you to let me know as soon as possible your preference regarding a state v. federal exchange,” he wrote. That preference will be relayed after November’s election.

The state’s actuary has estimated that an expansion of Medicaid in Indiana would cost about $2 billion between 2012 and 2020 and has projected the cost to operate a health care exchange between $50 million and $65 million per year to operate.

ILB: Some might have hoped that Governor Daniels' new "non-political" posture had put him in the unique position to be able to make these decisions on a non-political basis.

Posted by Marcia Oddi on Thursday, August 02, 2012
Posted to Indiana Government

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

For publication opinions today (1):

In N.B. v. State of Indiana , a 15-page opinion, Judge Bradford writes:

Appellant-Defendant N.B. appeals following the juvenile court’s determination that he committed the delinquent act of Reckless Homicide, a Class C felony if committed by an adult. Specifically, N.B. contends that the juvenile court abused its discretion in admitting his statement to the investigating officer at the evidentiary hearing. We affirm. * * *

N.B. contends that the juvenile court erred in admitting his statement to Detective Downing because the procedural safeguards for the waiver of a juvenile’s constitutional rights, as required by Indiana Code section 31-32-5-1 (2010) (the “juvenile waiver statute”), were not followed. Specifically, N.B. claims that Mother was not an appropriate custodian to join in the waiver of his rights because she had an adverse interest to N.B. and that his waiver was not knowing or voluntary because he executed the written waiver before being afforded an opportunity for meaningful consultation with Mother. For its part, the State argues that the juvenile court properly admitted N.B.’s statement because N.B. was not in custody at the time he spoke to Detective Downing, and, alternatively, because the procedural safeguards set forth by the juvenile waiver statute were met. * * *

As a general rule, when a juvenile who is not in custody gives a statement to police, neither the safeguards of a Miranda warning nor the juvenile waiver statute is implicated. A.A. v. State, 706 N.E.2d 259, 261 (Ind. Ct. App. 1999). Thus, the threshold issue is whether N.B. was subject to a custodial interrogation when he gave his statement. * * *

However, we need not determine whether N.B. was in custody because, as will be discussed below, we conclude that the procedural safeguards set forth in the juvenile waiver statute were met. * * *

Based on the totality of the circumstances, we agree with the trial court’s determination that while “the signing of the waiver form should, under best practices, occur after the parent and child have had an opportunity for meaningful consultation,” under the facts of this case, N.B. impliedly waived his rights after engaging in meaningful consultation with Mother, and that both N.B.’s and Mother’s waiver was knowing and voluntary.

The judgment of the juvenile court is affirmed.

NFP civil opinions today (2):

Joseph A. Taylor v. Alan P. Finnan (NFP)

Evergreen Shipping Agency Corp. v. Djuric Trucking, Inc. (NFP)

NFP criminal opinions today (3):

David S. Healey v. State of Indiana (NFP)

Kent W. Carter v. State of Indiana (NFP)

Aaron M. Spicer v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 02, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - " North Carolina regulators hire Chicago law firm to investigate whether Duke Energy misled ahead of merger"

From an AP story today reported by Emery Dalesio that begins:

RALEIGH, N.C. — North Carolina utilities regulators said Wednesday they have hired a former federal prosecutor with experience digging into corporate affairs to reveal whether regulators were misled ahead of a takeover that created America’s largest electric company.

The North Carolina Utilities Commission said it has hired Anton Valukas and the Jenner & Block law firm, which he heads in Chicago. The ex-prosecutor and his firm are tasked with investigating what happened before regulators approved Charlotte-based Duke Energy Corp. taking over Raleigh-based Progress Energy Inc.

Posted by Marcia Oddi on Thursday, August 02, 2012
Posted to Indiana Government

Ind. Gov't. - Still more on "Prison college a good investment in rehabilitation"

Updating this ILB entry from July 5th, Brooke Adams of the Salt Lake Tribune reports today in a story headlined "Educating Utah inmates costs more than other adults, with payoff uncertain ."

Posted by Marcia Oddi on Thursday, August 02, 2012
Posted to Indiana Government

Ind. Decisions - "Zoeller says integrity was at risk: Indiana AG explains why he won't defend immigration law."

Updating this ILB entry from July 31st, Dave Stephens of the South Bend Tribune reports today in a story that begins:

SOUTH BEND -- A day after he shocked many by asking a federal judge to strike down much of the state's new immigration law, Attorney General Greg Zoeller took to the road to explain his actions.

"It's basically a willingness to admit to the court that some parts of the law are unconstitutional," Zoeller said Wednesday, during a stop with reporters at the South Bend Tribune.

That admission -- filed in legal brief form in federal court in Indianapolis -- basically pointed out that many parts of the immigration law passed by state legislators in 2011 were similar to sections of the Arizona law that were struck down by theU.S. Supreme Courtin July.

Specifically, Zoeller believed the Supreme Court's Arizona decision made three provisions in Indiana's law regarding "warrantless searches" unconstitutional.

Posted by Marcia Oddi on Thursday, August 02, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - The best of both worlds re access to a statewide network of trial court dockets?

In March of 2005 the ILB posted an entry headed "Has the state-wide case tracking 'wheel' already been invented in Indiana?" This was shortly after the Indianapolis Star story on Tuesday [March 8, 2005] headlined "Plan to link 400 courts hits a wall: Costly software glitch halts effort to computerize records statewide." The entry pointed out that a private commercial service, Doxpop, had at that time already linked the output of the computerized case-management systems (CMS) of 20 counties. It said that Doxpop works on top of a county's case management system, whatever they may be.*

Since 2005 the Court's JTAC started over with an Odyssey system and has installed that CMS in a number of counties. Doxpop in the meantime added a number of additional counties to its network. A stumbling block arose in Dec. of 2007 when Odyssey was installed in the first county already served by Doxpop, Monroe County. Subsequently the Court would not approve private service access the output of the Monroe County Odyssey CMS. So Monroe County dropped out of the than 41-county Doxpop network.

Since then, lawyers wanting to check case status in various counties have had to access two growing networks, Odyssey's and Doxpop's. A break finally came in September of 2011 when the Supreme Court voted to make Odyssey bulk data available to third party vendors.

According to a Doxpop newletter the ILB received this morning, as of this July, Doxpop has now merged the Odyssey output it has contracted for with its own Doxpop network so that "Doxpop now provides information that is updated within 10 minutes or less for cases in nearly all of the 82 Indiana counties that we provide access for." They continue:

Now Doxpop is able to combine real-time data feeds from these two largest case management systems along with the data from several smaller vendors to provide our users with current information to cases in 82 Indiana counties. This has been a lengthy and expensive process for Doxpop, but we think you'll agree that the value it adds for our users has been worth the effort.
__________
*Note: Doxpop became an ILB supporter on April 1, 2008.

Posted by Marcia Oddi on Thursday, August 02, 2012
Posted to Indiana Courts

Law - "Shepard to Chair National Task Force on the Future of Legal Education"

From an ABA press release:

CHICAGO, July 31, 2012 — The American Bar Association today announced establishment of a task force to review and make recommendations on the state of legal education and its responsiveness to the needs and opportunities of the legal market.

The Task Force on the Future of Legal Education — consisting of representatives from the judiciary, organized bar, legal education and legal practice — will be chaired by recently retired Indiana Supreme Court Chief Justice Randall T. Shepard.

“The growing public attention to the cost of a law school education, the uncertain job prospects for law school graduates and the delivery of legal services in a changing market warrant substantial examination and analysis by the ABA and the legal profession,” said ABA President Wm. T. (Bill) Robinson III. “Legal education must be evaluated in the context of the marketplace and the nation’s and world’s unprecedented challenges in an ever-more complex global economy.

“Chief Justice Shepard is widely respected for his leadership in promoting legal education, professionalism and civility in the legal profession,” Robinson continued. “He is universally respected for his wisdom, integrity and openness to new ideas. Therefore, I am certain he will lead our esteemed and thoughtful task force members to consider a broad range of issues in order to make sound, compelling recommendations. ABA leadership is grateful for the commitment of Chief Justice Shepard and the task force members to address these issues.”

As Shepard explained, “The task force will solicit views in the widest way possible to help us identify how the bench, bar and legal education community can work together to provide meaningful opportunities for law students and graduates that benefit clients and the public at large.”

The task force is expected to continue its work during the next two ABA presidential terms and conclude in 2014.

Posted by Marcia Oddi on Thursday, August 02, 2012
Posted to General Law Related

Wednesday, August 01, 2012

Ind. Decisions - "David Camm denied release while awaiting third trial in family's murder"

Brief story here in the Louisville Courier Journal.

Posted by Marcia Oddi on Wednesday, August 01, 2012
Posted to Ind. Trial Ct. Decisions

Courts - More on "Identify writer on blog: Idaho newspaper ordered to provide information"

Updating this ILB entry from Jully 13, 2012, Martin Kaste of NPR's All Things Considered has a followup story, dated July 31. 2012.

Posted by Marcia Oddi on Wednesday, August 01, 2012
Posted to Courts in general

Ind. Decisions - Criminal Appeals in the Post-Shepard Era: Justice Massa Is 18-1 for the Prosecution

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

Since Justice Massa filled the vacancy created by the retirement of Chief Justice Shepard four months ago, the Indiana Supreme Court has issued opinions in 19 criminal cases.* The State has prevailed in 13 cases; the defendant has prevailed in 6.

Hollin, the only case in which Justice Massa agreed to grant relief to a defendant, is an unusual case where the Court merely upheld a trial court’s grant of post-conviction relief under a very deferential standard of review: “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.”

Justice Massa’s single vote for relief for a criminal defendant compares to 5 for Justice David, 6 for Chief Justice Dickson, 8 for Justice Sullivan, and 9 for Justice Rucker.

Although these numbers may seem striking in and of themselves, the specific reasons for Justice Massa’s divergence from the majority in each case are worthy of note. Here is a closer look at his five dissents in favor of the State:

  1. Original action in Logan. Writs of mandamus and prohibition are extraordinary remedies that are rarely granted by the Indiana Supreme Court. The law and facts must clearly entitle the Relator to relief in order to prevail. On May 24, a majority of the Court (and its three longest-serving members) granted relief in part based on Criminal Rule 4 (speedy trial) concerns. Justice Massa, along with Justice David, dissented.

  2. Fletcher dissent from denial of transfer. On June 14, the Court issued an order denying transfer in a Criminal Rule 4 (speedy trial) case in which the Court of Appeals had reversed the trial court. Although transfer was initially granted, the Court found after hearing oral argument that it had been improvidently granted. Justice Massa filed a rare written dissent from the denial of transfer.

  3. Sentence reduction in Walker. On June 20, the Court issued a per curiam opinion reducing a sentence from twenty to twelve years, relying heavily on another recent case: “Having reviewed the matter, we grant transfer of jurisdiction, and direct revision of the sentence from twenty years to twelve years. See Abbott v. State, 961 N.E.2d 1016, 1017-1019 (Ind. 2012) (‘but for the police officer’s choice of location in stopping the car in which Abbott was a passenger, he would have received no more than the maximum three-year sentence for his possession of less than three grams of cocaine.’).” Although Chief Justice Dickson and Justice David had dissented in Abbott, they concurred in the per curiam reduction in Walker. Justice Massa did not; he was the only vote to deny transfer.

  4. Sentence reduction in Castillo. Yesterday the Indiana Supreme Court reduced a life without parole sentence to 65 years. Justice Massa’s dissent found “no reason to disturb this decision under our Rule 7(B) analysis when considering the nature of the offense (a vicious litany of abuse on a defenseless and utterly innocent victim followed by a deliberate, planned attempt to conceal the crime, deny involvement, and deceive law enforcement) and the character of the offender (a drug-abusing teenager with a troubled childhood who exhibited hostility to authority and callous disregard for her victim and was hardly the manipulated accomplice she now claims to be).”

  5. Double enhancement in Dye. Yesterday the Court also ruled in favor of a defendant convicted of unlawful possession of a firearm by a serious violent felon (“SVF”) and found to be a habitual offender, concluding this was an impermissible double enhancement. Justice Massa dissented, concluding there was “explicit legislative direction permitting an adjudicated serious violent felon to be subject to additional enhancement under the general habitual offender statute.” Chief Justice Dickson concurred with the majority, “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.”

The numbers above do not include votes on transfer petitions that did not result in a written opinion. For example, on April 24 the Court denied transfer in Nathan Anderson v. State. The Court of Appeals had reversed in part, concluding the defendant’s statement “I really would like to talk to an attorney or something” was an unequivocal request for counsel that should have led police to cease questioning. Justice Massa dissented from the denial of transfer, concluding: "Appellant's invocation of his right to counsel was ambiguous and thus his convictions on all counts should be upheld."

A Record Rate of Dissent?

The Indiana Supreme Court has long had a high percentage of unanimous decisions. Newly appointed justices have generally been part of that unanimity while often aligning most frequently with the Chief Justice. Last year’s Indiana Law Review survey article about Indiana Supreme Court voting patterns commented on “the significant amount of judicial independence on Justice David’s part,” though, noting that he agreed with Justices Dickson and Sullivan in only 71.4% of criminal cases during his first three months on the Court, while no other pair of justices agreed in less than 80% of criminal cases.

But Justice David’s early “independence” in criminal cases pales in comparison to Justice Massa’s. Without Justice Massa in the equation, the four veteran justices would have been unanimous in 73.7% (14/19) of criminal cases; with Justice Massa in the equation, unanimity falls to 52.6% (10/19). Considering only the four veteran justices, the lowest rate of agreement in criminal cases was 78.9% (15/19) (Justice David and Justice Rucker). This low equals the percentage of agreement between Justice Massa the justice with whom he agreed most (Justice David). Justice Massa was least aligned with Justice Rucker, agreeing in only 57.9% (11/19) of criminal cases.

Although the ILR article commented on Justice David’s membership in the majority in three split decisions “providing an early hint of how crucial the new justice’s views might be going forward,” Justice Massa was more frequently in the minority than the majority of the non-unanimous opinions: 55.6% (5/9) of cases. Justice Rucker was a distant second at 33.3% (3/9). Most remarkably, though, unlike Justice David, whose early opinions sometimes sided with the State and sometimes with the defendant, Justice Massa’s early decisions in split decisions have been uniformly for the State. This differs from some conservative U.S. Supreme Court justices, such as Justice Scalia, who has often sided with criminal defendants on Sixth Amendment confrontation and jury issues as well as some Fourth Amendment cases. As a recent LA Times article notes, “[f]or Scalia, ‘this is all about adhering to originalism,’ regardless of whether the results seem strange.” It is difficult to find a similar guiding principle in Justice Massa’s early opinions.

With the final round of interviews for the Sullivan vacancy just one week away, one might harken back to the tough questions Massa faced as an applicant in the second round. Every judge brings to the bench a wealth of prior experiences as a lawyer and an individual, and Justice Massa spent most of his professional life as a prosecutor: Marion County Deputy Prosecutor (1990-91), Chief Counsel at MCPO (1995-98, 1999-2002), and Assistant U.S. Attorney (2002-05). He is the first and only Daniels’ appointee to the Court of Appeals or Supreme Court without prior judicial experience. (Justice David was a Boone County judge; Judge Bradford was a Marion County judge; and Judge Brown was a Jasper County judge.)

______________
*This number includes 17 opinions decided between May 31 and July 31, which may be accessed here and here. It also includes an original action and order denying transfer with a written dissent, available here.

Posted by Marcia Oddi on Wednesday, August 01, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Ind. court upholds life sentence for teen killer"

Yesterday's Supreme Court decision in Andrew Conley v. State of Indiana (ILB summary here) is the subject of long story today by Charles Wilson of the AP. A few quotes:

INDIANAPOLIS (AP) — The Indiana Supreme Court on Tuesday upheld a sentence of life without parole for a teenager who said he wanted to be like the fictional television serial killer Dexter a few weeks before strangling his 10-year-old brother.

Andrew Conley was 17 in November 2009 when he killed his brother, Conner, while wrestling in their home near Rising Sun and dumped the boy's body in a park. He unexpectedly pleaded guilty in September 2010, averting a murder trial.

In the 3-2 ruling, the justices said Conley acted "as if nothing was out of the ordinary" after the killing. According to testimony during the five-day sentencing hearing, Conley joked with his mother and watched football the day after he killed Conner. * * *

The U.S. Supreme Court in June threw out mandatory sentences of life in prison without parole for juveniles, but left open the possibility that individual judges could sentence juveniles to life without parole in individual cases of murder.

The Indiana justices noted that the high court's decision dealt only with mandatory sentences, not those issued at a judge's discretion. They found "no abuse of discretion" in Ohio County Circuit Court Judge James Humphrey decision.

"The heinous facts of this crime are difficult to comprehend," they said. * * *

The two justices who dissented in Tuesday's ruling, Robert Rucker and Frank Sullivan, cited the teen's age when arguing that he shouldn't have been sentenced to die in prison.

"There is no question that juveniles have developmental issues that reduce their culpability for crimes," Rucker wrote.

Posted by Marcia Oddi on Wednesday, August 01, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Governor to swear in new chief justice Monday"

Brief story by Dan Carden of the NWI Times, with nice photo of the Chief Justice.

For more details, see this July 26th ILB entry.

Posted by Marcia Oddi on Wednesday, August 01, 2012
Posted to Indiana Courts

Ind. Decisions - Supreme Court denies transfer in quiet title case, J. Sullivan dissents in writing

The Dec. 30, 2011 COA NFP opinion in James Kindred, Thomas Kindred and Sam Kindred v. Betty Townsend and Harmon Crone (NFP), a quiet title action, was denied transfer by a vote of 4-1, in an Order filed July 31, 2012. Justice Sullivan dissented, setting out in writing his reasons. (When this happened last month in a case where Justice Massa objected to a denial of transfer, I called it a "rare written dissent" to a transfer denial.) Here Justice Sullivan writes:

Plaintiffs seek transfer. Among their contentions is that the Court of Appeals did not address their argument that, Defendants not having timely responded to the Plaintiffs’ motion for summary judgment, their motions to correct error and for relief from judgment constituted impermissible end-runs around the time deadlines of T.R. 56(C). In support of this argument, Plaintiffs cite explicit authority from this Court and the Court of Appeals holding that a trial court may not consider late summary judgment filings. HomeEq Serv. Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 2008); Borsuk v. Town of St. John, 820 N.E.2d 118, 124 n.5 (Ind. 2005); Desai v. Croy, 805 N.E.2d 844, 849 (Ind. Ct. App. 2004), trans. denied.

A party’s “absolute right to one appeal” in all cases includes the right to have each issue presented on appeal addressed and disposed of. Ind. Const. Art. 7, § 6. The plaintiffs were denied that here. I would grant transfer for purposes of addressing the raised but unanswered issue.

Posted by Marcia Oddi on Wednesday, August 01, 2012
Posted to Indiana Transfer Lists

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

For publication opinions today (0):

NFP civil opinions today (1):

Dewayne Busz v. Brandi Watkins and Mike Schuh (NFP)

NFP criminal opinions today (2):

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

Edward Lee Jackson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 01, 2012
Posted to Ind. App.Ct. Decisions